Lords Sitting of 5 July 1971

Preamble
The House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lichfield.

SOUTH-WEST AFRICA: FUTURE ADMINISTRATION
LORD BROCKWAY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what action they propose in order to implement the decisions of The Hague International Court of Justice that the mandate of the Republic of South Africa over Namibia (South-West Africa) be revoked, its administrations transferred to a United Nations Commission, an economic boycott of South African trade deals on behalf of the territory instituted, and diplomatic representatives appointed by South Africa recalled.]
THE MINISTER OF STATE, SCOTTISH OFFICE (BARONESS TWEEDSMUIR OF BELHELVIE): My Lords, I presume that the noble Lord refers to the Advisory Opinion of the International Court of Justice. The text of the Advisory Opinion is being carefully studied in the Foreign and Commonwealth Office. Meanwhile, my right honourable friend is not yet ready to make a statement.
LORD BROCKWAY: My Lords, while appreciating that Answer, and also agreeing that a United Nations Commission is of limited value while it has no power, may I ask the noble Baroness—I ask this for consideration—whether or not effective steps could be taken in two directions: first, by making clear to the South African Government that their diplomatic and consular representations do not extend to Namibia; and, secondly, by proposing that United Nations representatives be appointed to represent Namibia on all international agencies—United
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Nations, Universal Postal Union and similar bodies?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I will certainly undertake to convey these views to my right honourable friend, but I think we must await the considered study of the Advisory Opinion.
LORD FRASER OF LONSDALE: My Lords, may I ask my noble friend whether she remembers that more than a half a century ago—
SEVERAL NOBLE LORDS: Oh!
LORD FRASER OF LONSDALE: I beg the noble Baroness's pardon. Did she learn at school that more than half a century ago the South Africans rescued these people from one of the most tyrannous Colonial Governments that ever existed and have looked after them with compassion ever since—compassion comparable with that with which they look after their own people? Can my noble friend tell me of any case in the world, in the last half-century or before that, where the United Nations or the League of Nations have undertaken successful government?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I am afraid that I did not, over half a century ago, learn these facts at school; but even in retrospect I am aware of the history of South-West Africa. But, so far as the second part of the noble Lord's supplementary question is concerned, I am afraid this particular Question merely refers to the Advisory Opinion of the International Court of Justice.
LORD BROCKWAY: My Lords, while I can remember the events to which the noble Lord has referred, I appreciate that the noble Baroness cannot. But may I put this point to her, for further consideration by Her Majesty's Government? In view of the recommendation of an economic boycott, could not the British Government require withdrawal by British companies from all trade contracts and the prohibition of further contracts in Namibia?
LORD CONESFORD: My Lords, if the matter is under consideration, why does the noble Lord who has asked the Question assume that the consideration will necessarily result in the way he wishes?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, so far as the supplementary question by the noble Lord, Lord Brockway, is concerned, he will no doubt have noticed that these are conclusions of the Advisory Jurisdiction of the International Court of Justice. They are not decisions as such. So far as the question by my noble friend who has just sat down is concerned, I would only say that one cannot know what the legal advisers will come up with.
LORD MILVERTON: My Lords, may I ask two brief questions? Is it not a fact that the South African Government offered to hold a plebiscite of the native tribes concerned in South-West Africa in the full expectation, which is shared by those who know something about that country, that the Africans themselves would have preferred to remain under the tutelage of South Africa rather than of the United Nations? Secondly, is it not a fact that the South African Government have declared their policy towards these people of training them to manage their own affairs in four different sections so that there should be no tribal conflict in the process, and that they intend, when they have so trained them, to make them independent States in economic partnership?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I should just like to say to my noble friend who has asked that question that a cursory examination of the Opinion does not show that it recommended, as the Question says, "that its administrations be transferred to a United Nations Commission". But all points of view will certainly be taken into account.

TOY IMPORTS AND SAFETY STANDARDS
2.42 p.m.
LORD AUCKLAND: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what proportion of toys currently on sale in the United Kingdom are imported, what steps are being taken to ensure proper safety standards and
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whether they are satisfied that these standards are adequate.]
THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESHAM): My Lords, in 1970 about 25 per cent. of the toys on sale in this country were imported. Importers and manufacturers are encouraged to comply with the relevant British Standard Code, and certain of the safety requirements of the code have been given statutory backing in the Toys (Safety) Regulations 1967. Further regulations are in prospect. The code is kept under review by the British Standards Institution, and there is no reason to doubt its adequacy.
LORD AUCKLAND: My Lords, in thanking my noble friend for that reasonably satisfying Answer, may I first ask him whether he is aware that the Home Office, under both Governments, has gone a long way towards resolving this matter? May I also ask him whether it would be possible to put pressure on the Governments of the countries largely responsible for the importation of these dangerous toys, particularly Hong Kong, to make quite sure that when they enter this country they are in a reasonably safe condition? At the moment there is evidence that they are not safe.
LORD WINDLESHAM: My Lords, the Hong Kong Government have been very active in ensuring that so far as possible toys manufactured in the Colony are safe. The code of safety requirements for children's toys has been translated into Chinese and distributed to all manufacturers of toys in the Colony. The Hong Kong Government are determined to see that the requirements of the code are complied with. As regards other countries of origin, many importers in this country when placing orders overseas now make it their practice to include a provision in the contract to the effect that the toys supplied must comply with the British Standard requirements. This is a useful practice.
LORD SHEPHERD: My Lords, is not the responsibility upon the buyer in this country? Is he not the one who sees the samples and makes the decision whether to buy and whether the toys conform to the standard? It is up to those in Hong Kong to see that they carry out their contract.
LORD STONHAM: My Lords, would it not be practicable to prohibit the importation of toys which do not satisfy our safety standards?
LORD WINDLESHAM: My Lords, anyone who imports toys which do not meet the standards laid down in the Toys (Safety) Regulations—and certain items such as the toxicity of the paint are covered by these Regulations—lays himself open to prosecution. I agree with the noble Lord, Lord Shepherd, that it is very much a matter for the importers concerned to satisfy themselves. My Department has received a good deal of co-operation from importers; in one particular case the importer acted swiftly and took off the market at once all supplies of a particular toy.
VISCOUNT ST. DAVIDS: My Lords, will the noble Lord ensure that every effort is made to put the utmost pressure on these foreign manufacturers, even up to and including legal methods if necessary? Will he please remember that Ruskin said that there is nothing on earth which cannot be made a little cheaper and a little nastier?
LORD WINDLESHAM: My Lords, I think that those close to this subject who have taken an interest in it, such as my noble friend Lord Auckland and the noble Lord, Lord Crook, on the Benches opposite, feel that the situation has been improving over the years as a result of the methods I have described.

PROCEDURE OF THE HOUSE
THE CHAIRMAN OF COMMITTEES (THE EARL OF LISTOWEL): My Lords, I beg to move that the Eighth Report from the Select Committee be now considered.
Moved accordingly, and, on Question, Motion agreed to.
The Committee's Report was as follows:
CO-OPERATION WITH THE HOUSE OF COMMONS
The House of Commons Procedure Committee have suggested co-operation between the Houses in examining the following four subjects:—

(a) the distribution of Bills between the Houses;

(b) joint pre-legislation committees;

(c) joint post-legislation committees;

(d) a joint committee to examine or debate statutory instruments.

The Procedure Committee welcome this initiative and have asked the Chairman of Committees and the Leaders of the three parties, attended by the Clerk of the Parliaments, to convey this response to the House of Commons Procedure Committee. These Lords will have the opportunity of exploring with the Commons Procedure Committee the best means of promoting co-operation between the Houses on the four suggested subjects and related matters, and thereafter will report back to the Lords Procedure Committee.
THE EARL OF LISTOWEL: My Lords, I beg to move that this Report be now agreed to.
Moved, That the Report be agreed to.—(The Earl of Listowel.)
On Question, Motion agreed to.

MEDICINES BILL
Brought from the Commons; read 1a, and to be printed.
CRIMINAL DAMAGE BILL [H.L.]
Returned from the Commons, agreed to, with Amendments: the said Amendments to be printed.

INDUSTRIAL RELATIONS BILL
2.47 p.m.
THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN): My Lords, I beg to move that this Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Drumalbyn.)
On Question, Motion agreed to.
Schedule 1 [Provisions as to certain closed shop agreements]:
LORD STOW HILL LORD STOW HILL moved Amendment No. 41A:
Page 133, line 27, at end insert—
(" 27. Where the Commission has stated in its report to the Industrial Court that by reason of the ephemeral character of a significant number of the employers and potential employers in the trade or industry or section of a trade or industry in question, it is not reasonably practicable for closed shop agreements to be made with all such employers and that in consequence the purposes specified in paragraph 5(1) of this Schedule could not reasonably be expected to be fulfilled unless such closed shop agreement were binding on every employer in such trade or industry or such section of a trade or industry, the order made

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by the Industrial Court in accordance with paragraph 8 or 14 of this Schedule shall be expressed to be, and shall be, so binding.")
The noble Lord said: My Lords, on the Marshalled List there are three Amendments that are directed, broadly speaking, to the same objective, which I would comprehensively describe as the protection of the position of, in particular, Equity and any other trade unions that may have to cope with a problem similar to that with which Equity has to cope. My noble friends and I considered whether we could assist your Lordships best in considering the various features of these Amendments by moving them separately and explaining those features in relation to each Amendment or whether we could more expeditiously address ourselves to our task by moving all of them together and, as we went along, pointing out their different aspects. I hope that your Lordships, having considered them, will approve the view that we formed that it would be much more to the convenience of the House, if we moved each Amendment separately. That is the course which I and my noble friends would desire to follow. We feel that if we moved them all together it would be very difficult to avoid confusion in referring to them successively. Although they are directed to the same objective they are each differently structured and represent an entirely different approach to try to achieve the end we have in view.
LORD DRUMALBYN: My Lords, may I just say to the noble Lord, Lord Stow Hill, with respect, that we agree with that view.
LORD STOW HILL: My Lords, I am grateful to the noble Lord. I, certainly—and I am sure my noble friends will, too—will do my level best not to take up your Lordships' time unnecessarily. When your Lordships' House sat last I moved an Amendment which was designed to produce the effect that an application for an approved closed shop could be made unilaterally by a trade union even though the employer did not wish to join in the application; and vice versa, although that was a much less likely situation. Amendment No. 41A is designed to narrow that proposal very considerably in order to fit it to the situation of Equity.
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When I moved my last Amendment your Lordships felt that I was going too wide and doing something which would involve the imposition of an agreement upon an unwilling party. This Amendment seeks to involve an employer in a closed shop agreement under the provisions of Schedule 1 if, and only if, the Commission report that there are certain circumstances in that industry which make it impossible to achieve the objective set out in paragraph 5 of the Schedule without making a closed shop arrangement binding on all employers wishing to enter the industry.
I promise not to repeat the argument I used last Thursday, but your Lordships may remember that a cardinal feature of Schedule 1 is contained in paragraph 5, which requires that before the Commission can recommend an approved closed shop agreement certain things have to be proved and they are set out in subparagraphs (a), (b), (c) and (d); in particular, that the closed shop is necessary—not desirable, but necessary—to achieve reasonable terms, stable relationships and all the rest, and that an agency shop would not serve the purpose equally. The situation of Equity has been explained before and I do not want to go over the same ground unnecessarily; but it is essential to bear in mind the very special problem with which Equity is confronted. Equity has been built up over a number of years, and I think that every noble Lord will agree that it has done most valuable public work in an industry—if acting may be described as an industry—in which the situation of the would-be entrant, and the person who has entered but not yet climbed high in the ranks of the profession, is extremely precarious. There are far too many in the profession for employment to be found for all. Employment is very irregular and lasts for short periods. Actors and actresses of high renown find their services are not called on with the regularity which in other occupations gives a sense of security and a steady income.
The life of an actor is up and down. The life of a young, ambitious actor, who may have great talent but little experience and service in the profession, is extremely dangerous. I submit, respectfully, that they have a special claim to the protection of a Bill of this sort in order to safeguard their position in the

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early years of their career and also throughout their life. One reason which makes it difficult to safeguard their position is the nature of the employer structure. Again this has been said before and I apologise for reminding your Lordships of it. As your Lordships will know, in the theatre world, and also in the film world, it is a regular feature of the employer structure that companies are formed for a single production; and when the production is brought to an end the company disappears. The line of such a company may last for months or years, or it may be less than months. It may be a company which has very limited assets, and frequently those in control—I withdraw the term "frequently" and say sometimes those in control—are persons who are not really entitled to great confidence. I am not saying that this is a profession in which most of the employers are unreliable; that would be grossly untrue. But, as with so many human communities, such persons do not infrequently enter on the scene. If unreliable managements engage on contracts which are not standing contracts, and with young actors and actresses desperately in need of a job in an overcrowded profession, one can easily see what is likely to happen unless a powerful union like Equity intervenes to protect them.
The protection which the Government introduced after this Bill has been considered in another place is contained in Clause 17 and consists of the provisions relating to the approved closed shop. It is strongly represented on behalf of Equity—it has been represented to the Secretary of State and urged on your Lordships—that when you have a structure of employment in which there are a whole number of companies, short lived, formed particularly for one production, it is absolutely impracticable to try to include those employers in approved closed shop arrangements such as are envisaged in Clause 17. They are not long enough lived.
As has been pointed out before, the procedure envisaged in Clause 17 and Schedule 1 is lengthy. There has to be an application to the Court; the Court has to refer to the Commission; the Commission has to be satisfied about all the matters to which reference has been made. Even if it thinks all those circumstances
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are present it has to be satisfied that the objective would not be equally well attained by the institution of an agency shop. Then there is a report back to the Court and an opportunity has to be given for a ballot. The whole process may take weeks, or even months. The result of the ballot may be questioned. In the case of a large union, with a large employer or group of employers to deal with, it is inconvenient, and may be highly undesirable, that so many months should be allowed to go by without a decision. But it would be absolutely disastrous and shattering in the case of Equity with the sort of employers with which Equity has to cope. I submit that I am not putting the matter too high when I assert that, with the Bill in its present form, Equity and its whole structure and all its public work is in jeopardy. It simply cannot function if, in order to protect those who wish to enter the industry or who are serving in the industry, it has to go through all the complicated process envisaged in Clause 17 and Schedule 1.
My Lords, that is the argument on which I base the Amendment which I submit to your Lordships. It is now appropriate that I should explain how in the first of these three Amendments we try to approach the problem. It involves—and I frankly accept it—an order being made by the Court applicable to employers who have not indicated their willingness to agree to a closed shop agreement. We are acquainted with the structure of the legislation relating to approved terms and conditions in industry. If you are an employer you must accept that those terms are binding on you although you may not agree individually to accept those terms. Here, by an analogy, is a reason. If an employer wishes to put on a production or to make a film or play and before putting it on for that purpose wishes to engage the services of actors and actresses, he must face the same situation. He comes in and out of the industry and is ephemeral. Is it unreasonable or an infringement of the liberties which we think essential in this country to say that if he elects—and he need not, if he does not want to do so—to enter this field of activity or to be remunerated for entry into this field of activity, he must do so only in certain circumstances: he must

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accept the provisions as to casting arrangements and various arrangements which Equity has instituted?
The Amendment assumes, because it is in the form of a new paragraph 27 in the Schedule, that the Commission has had seizure of the matter and that the Commission, having been consulted by the Court, reports back to the Court as follows, in the wording of the Amendment:
"that by reason of the ephemeral character of a significant number of the employers and potential employers in the"
profession
"or industry in question it is not reasonably practicable for closed shop agreements to be made with all such employers…"
That is the first thing. Because of this wide array of employers—and they tend unfortunately to group at particular times of the year, in the pantomime season and in the summer and so on: that is when they proliferate—that is the first thing the Commission has to report.
The second part of the Amendment provides:
"that in consequence the purposes specified in paragraph 5(1) of this Schedule could not reasonably be expected to be fulfilled unless"
the closed shop binds all employers, in which case the Court ought to make n order which is binding on all employers who enter into that industry. I respectfully stress the second part which relates to the circumstances set out in paragraph 5 of the Schedule. In the acting profession one cannot achieve these purposes—stable employment, orderly relationships and so on and—avoid the sub-standard contracts and the various abuses which one knows from time to time are practised in that very great profession and on those who act in it, male and female, unless one makes the closed shop provisions binding on everyone who enters into it as a producer.
My Lords, I submit that that does not involve any break in our traditions of personal liberty. If it does, there are precedents in legislation to which I have referred. One need not put on a play if one does not want to do so nor make a film if one does not want to do so. All I say is that if the Commission, with all its experience, having examined the matter, reports to the Court that there
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are circumstances in the particular industry about which it has been asked to report by which it cannot be put on a good footing unless the closed shop arrangements apply to anyone who comes into it, the Court should have that jurisdiction by judicial process. That is the way in which the Amendment is meant to work. Those are the objectives it is meant to achieve. I submit that without them it is no exaggeration to say that the prospects of actors and actresses who need protection in this industry in future will be very gloomy indeed. I beg to move.
3.5 p.m.
BARONESS LEE OF ASHERIDGE: My Lords, may I repeat what I said on a previous occasion, that in an ideal world I do not think that anyone in any part of your Lordships' House would want to advocate the closed shop principle. We should want as free movement as possible in and out of any industry, trade or profession. But no one can have any idea at all of the problems facing Equity and A.C.C.T.—not just for the most gifted of our younger people in the world of the theatre and the cinema but many of our older actors as well—without knowing that this kind of protection is essential. There is not much we can do for them. They deliberately choose this way of life, knowing that they are going to be unemployed for a good deal of the time in their younger years and many of them face unemployment all through their years. My noble friend, Lord Bernstein, and others on previous occasions have given the exact figures. I believe that sometimes unemployment is for several weeks in a year, even for very accomplished actors.
If your Lordships are in contact with theatre or film personnel you will know that they are so dedicated that they are prepared to put up with hardships which few workers in any other industry will face. To begin with, they know that they are choosing a way of life in which they will be unemployed for a great deal of the time, but there is nothing which the dedicated ones are not prepared to do while they are getting their experience and training. If your Lordships are looking for cheap labour, you should know that the cheapest labour on the London market at present is gifted young actors and cinema personnel, who can be hired

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for 6s. 6d. an hour. I have a small garden with a terrace and I wanted the stones on the terrace cleaned up. I telephoned about it and was told that if I wanted it done professionally, the minimum fee would be £50, but I could have a young unemployed actor to do the work for 6s. 6d. an hour, and all I had to do was to supply a pail and a scrubbing brush.
There is nothing which the young ones will not do; they will clean, scrub and paint or go to work in the back kitchens of the sleeziest restaurants. They are prepared to make that kind of contribution and regard it as part of their apprenticeship while they are young. They are prepared to do this to survive and to get experience, and the ungifted and undedicated are weeded out. We are discussing those who are gifted and dedicated, who are trying to add to the prestige and glamour of this country by their talents. I said that there is not much that we can do for them, but should we allow an unregulated flow of people without any qualifications and without belonging to any organisation to come in? In the summer season, for instance, many of these young people are glad to take odd jobs at the seaside, and one of our potentially great Shakesperian actors or actresses will be glad to put on a false nose or comic hat so as to earn a living. If we are to say that people can come into this profession without this minimum protection, we shall be putting a still further intolerable burden on gifted people. It is not only the young ones who suffer, but others, and it is making the job of Equity and A.C.C.T. almost impossible. So I hope, not only on grounds of pity and compassion but of plain common sense and ordinary decency, that we may have the unanimous support of your Lordships' House for this essential Amendment.
LORD BERNSTEIN: My Lords, we have heard the moving speech of my noble friend Lady Lee of Asheridge and also the cogent and sensible argument from my noble friend Lord Stow Hill in moving this Amendment. I know that the arguments that were put forward on Committee stage against this Amendment may have sounded valid in theory, but surely the views of those with direct and practical experience in the theatrical profes-
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sion should override those arguments, unless a better case can be put forward. It would not be possible for a company to move into a theatre quickly, because first they must be registered and, as my noble friend Lord Stow Hill said, in the meantime they might have lost the theatre.
The problem is that a number of fringe employers have reluctantly accepted the standing conditions, including the union shop, and without the joint powers of the organised employers and Equity they would not have had to subscribe to these arrangements. As my noble friend Lord Archibald said, entering Equity is a point of entry, not of pre-entry. When somebody wishes to become a member of Equity, he or she has to get work with a producer and then they have the right to join Equity, unless Equity can produce an alternative or better candidate for the casting or the position. I think that the Government underrate the importance of the considerable body of people trying to get into the profession, who would certainly be willing to co-operate with fringe managers, if allowed to do so.
We should not concentrate our attention on the West End theatres. An increasing number of young and dedicated people are looking to the provincial, particularly repertory, theatres which are now being well supported by local authorities and the Arts Council. They look upon these as of great and growing importance and would be content to work in them. Whose views are we to take? The views of those who have had practical experience for 20-odd years with Equity and A.C.C.T. or the views of people hidden away in some back room in Whitehall who want to carry out a doctrinaire policy?
I suggest that it is very surprising that the Government should wish to change something that has been so successful over so many years. Surely that is a very un-Conservative point of view? In another place suggestions were put forward to try to deal with the problem. Equity has said definitely that these suggestions will not deal with their problem. Is it unreasonable to believe that there may be some validity in what they say? Why should we assume that Equity, with their reputation and record, should be

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trying to get the Government to agree to something which is unnecessary? As the Bill now stands, an agreement outside the Theatrical Managers' Association for a closed shop in the British commercial theatre could presumably be declared necessary by the C.I.R., but it might take a long time before that could be done and before a company, formed in a moment of enthusiasm, could produce its theatre and its play. If the fringe management, who cover a considerable part of the actual employment of members of the unions, cannot be brought into these agreements and are able to employ outside artistes, it is doubtful whether the Managers' Association would be willing to make agreements at all. There will always be managers, however reputable, who will take advantage of a situation of this kind.
I do not know what more information the House would care to have, but it is interesting to know that last year in the West End 16 out of 42 theatres had productions by non-members of the Society of West End Theatre Managers, the society that supports Equity. The provincial theatre's percentage of non-members was higher. In the film industry in 1969, of 82 feature films, 19 were made by nonmembers of the Film Producers' Association—roughly 24 per cent. In 1970, the figure was 33⅓ per cent. And it is the Film Producers' Association which is supporting Equity and A.C.C.T. in this matter. Can the Government accept in this connection the voice of practical experience? I support the Amendment.
THE EARL OF BALFOUR: My Lords, may I ask one or two questions? I feel that this Bill must work in all fields of industry and I am not too sure in the case of Equity that they could really be in a position, in a closed shop agreement, of getting agreement between the union or unions and the employer or employers as described in paragraph 1 of Schedule 1, and whether, with such a flexible number of people in such a profession, they could even get them all to agree together in any ballot.
I would ask your Lordships to take into consideration two other industries that employ a large amount of casual labour—the agricultural and the building industries. As the Amendment says, the workers are of an ephemeral character.
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While in the theatrical profession on the whole people are of a quite high standard of education, and could group themselves together, I feel that this would be rather disastrous in the agricultural field. Here I must declare a slight interest, though I have never employed casual labour except completely out of season to do something like clearing trees. I have never had the problems of potato harvesting or fruit picking. But there is an awful type of casual Irish labourer who comes to this country, and I do not think that it would be in the interests of the National Farmers' Unions or the agricultural workers' unions to have people of this sort attempting to organise themselves into some sort of closed shop. I do not think it would work. It is not something which should be encouraged legally.
In the building industry we have wonderful trades—electricians, painters, carpenters, bricklayers—but we also have a complete cross-section of all sorts of casual labour. It would not be in the interests of the building industry if the casual labour could organise themselves into a closed shop as suggested in this Amendment. I am making this point because I really do not know. I know little or nothing about the theatrical profession, although I very much sympathise with what noble Lords have said about it. But we must look at this from more than just the point of view of Equity. We must throw the net wide when discussing legislation and I think that this Amendment may not be such a good idea.
3.19 p.m.
BARONESS WHITE: My Lords, with the greatest respect to the noble Earl I think that a little closer study of the Amendment would indicate that it refers to the casual nature not of the work-people but of the employers. It is the employers who are ephemeral in the theatrical industry, as well as the workers. That is an unusual situation. There are a number of occupations where there is casual labour, but it is difficult to think of any other profession in which both sides are of an ephemeral nature to the degree to which they are in the theatre and cinema industry. This is why we are taking so much time over this problem. It is, I think, a correct use of the word "unique". I do not believe that

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there is any other occupation—certainly one has not come to my notice—in which one has the same degree on both sides, both employers and workers, who change their form so often.
It is for this reason therefore that we have been pressing the Government so hard, both in another place and here, and we fully recognise that the Government have accepted the position up to a point. It was largely the arguments addressed to them on this particular problem in the theatre and cinema industry that made them agree to the closed shop in the first place, that has since made them prepared to apply it to some other industries, and to relax somewhat the conditions for the ballot. The last occasion we discussed this Bill the noble Lord, Lord Drumalbyn, on behalf of the Government, also offered a further concession so far as the organisation of employers are concerned. So bit by bit the Government are moving. What we want now is to get them to move just that little bit further. They have recognised that this is an extraordinary matter, and that it does not apply to industry in general.
The reason we are being so persistent is as my noble friend Lord Bernstein has said—and who can have had greater experience in this industry than he, on the cinematograph side in particular? He knows, and anyone who has had real experience in this matter recognises, that what would be normal for the greater part of industry is not effective in the peculiar situation in this industry. We assert that to carry out, as my noble friend Lord Stow Hill said, all the procedures which are necessary for the formation of a closed shop—which the Government have agreed is desirable in this particular occupation—cannot be done in the time, because the employer does not exist as an employer for long enough to carry out all the procedures; nor can the workers on their side go through all the procedures of a ballot and so forth in the period allowed. So often one has a situation where, as my noble friend Lady Lee has reminded us, a management is formed almost literally over-night. If they can find a theatre available, and proceed rapidly to gather a cast and go into rehearsal and so on, very often they will form a company for that single pro-
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duction; and it is equally so in the film industry. They are therefore not a static body of people of long standing.
My noble friend Lord Bernstein has given your Lordships some account of the number of productions in the last couple of years, both in the theatre and in the cinema, which were embarked upon by persons who were not members of the appropriate associations—the film producers' Association for the film industry, and the Society of West End Theatre Managers in London and the appropriate organisation in the Provinces. We have very carefully considered a suggestion which the Government might have in mind, that the employers' organisations should be asked to arrange some sort of temporary membership which would bring these people within the ambit of any agreement that might be reached for a closed shop in the industry. We look to this as a possible practical way out of this dilemma. We were assured, however, that the organisations concerned would be extremely reluctant to take into membership people about whom they did not know enough. They have their own standards. They usually insist on a fairly long term of probation before they will accept into full membership an organisation about whom they do not know sufficient as to their commercial standing, their probity and so on. One can understand this, and I do not think we should force them to take into membership people whom they feel are not perhaps fully appropriate to their organisation.
If one accepts that line of argument, then I think one has little alternative but to accept some of the proposals which we are now putting before the Government; otherwise, as I said on a previous occasion, all that the Government have done by way of concession—and we are aware that they have come quite a long distance—will be nugatory, in our view, in regard to quite a significant proportion of employment in the theatre and cinema industry. One is assuming that satisfactory agreements can be made with those who are what one might call permanent members of the Film Producers' Association or the Society of West End Theatre Managers, or any other comparable organisation; but from the very nature of the occupation they will never cover everyone in the industry. There will always be a significant fringe of what

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we call in the Amendment "ephemeral employers". We think this is inevitable in the nature of the industry, and unless proper arrangements can be made to deal with these on the employers' side, leaving out for the moment the ephemeral nature of employment for actors and others, we do not think the aim which we believe the Government share with ourselves can be achieved. It is for that reason, my Lords, that we are trying in every possible way to meet what we think to be the realities of the situation.
3.28 p.m.
LORD DRUMALBYN: My Lords, I certainly cannot complain if noble Lords opposite try to improve the provisions we already have in the Bill. What one has to be careful about, however, is that when such proposals are made we should be certain that they are necessary, so far as they mean restriction, and also that they would be effective if actually put into force. I am bound to tell your Lordships that I am not really satisfied that this Amendment meets either of those criteria. As the noble Lord, Lord Stow Hill, has said, the purpose and effect of the Amendment is to empower the Commission of Industrial Relations, where it concludes that an application for a closed shop ought to be approved, to decide that the proposed agreement should be extended not just to the parties to the application but to every employer in the industry or sector concerned. The C.I.R. would be entitled to reach such a decision if it thought that the conditions in paragraph 5(1) of Schedule 1 could not be met by the operation of a closed shop in the area covered by the application and could be met only if the closed shop were extended to a wider area of employment.
Your Lordships are certainly by now sufficiently familiar with the provisions of Clause 17 and Schedule 1, and also with the Government's policy, to be well aware that it is a basic principle of this part of the Bill that a closed shop may be approved only where, first of all, there is a joint application, and, secondly, the C.I.R. is satisfied that in the area covered by the application a closed shop is necessary for the purposes specified in paragraph 5(1), and where an agency shop agreement would not be an adequate alternative. In short, a closed shop may
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lawfully be operated only where the employer or employers concerned believe it to be desirable and concur in an application. The Amendment would of course be directly contrary to that principle, and we should find it difficult to accept the Amendment on that account alone.
I understand the misgivings which organisations such as Equity entertain about the possibility that a minority of non-conformist employers would not be prepared to consider a joint application with Equity for a closed shop. I understand the point about there being many employers characterised in the Amendment as ephemeral. Furthermore, I understand that such employers will be enabled by these provisions of the Bill to undermine the agreements and conditions established in the theatre and film industry by failing to keep to the Equity rules. That is what is said.
As your Lordships will know, the Government have discussed this problem on many occasions and at great length with representatives of Equity and other interested people in the entertainments field. The Government are not convinced that the imposition of a closed shop on unwilling employers is a necessary, or effective, means of maintaining reasonable conditions of employment or stable negotiating arrangements in the theatre, or indeed in other industries. As my noble friend Lord Balfour pointed out, this Amendment would not be confined to Equity alone. In the Government's judgment—and I accept that Equity does not entirely agree with that judgment—the maintenance of reasonable terms and conditions in the theatre is secured mainly, in the first place, by the loyalty and solidarity of the established players and managers; secondly, by the readiness of Equity members to refuse engagements from managers who offer sub-standard conditions, and thirdly, by the common interest of most reputable managers in offering a reasonably attractive career to those who enter the industry and in maintaining standards which will attract people of talent.
The Government believe that the closed shop provisions as they stand will help to buttress the interests which Equity and managements in the theatre, and in film and similar forms of entertainment, share

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in maintaining high standards in the profession. As I have made clear in previous debates, the Government cannot go further than repeat their undertaking that if, in due course, it becomes clear that standards in the theatre are jeopardised, we shall be ready to consider what special tailor-made scheme may be desirable to meet the special problems. I should have thought that this was a better approach than to try to tailor-make proposals for a particular industry and then extend them to all who fit that particular pattern. I should add that, quite aside from the basic difficulty of principle in accepting this Amendment, it would be very difficult to justify giving the C.I.R. this wide discretion without also requiring the C.I.R. first to examine the employment position throughout the industry, the sector or profession to which its decision would apply.
The reference application will define the limits of the area which the C.I.R. will be required to investigate. How can it then satisfy itself that an extension of the closed shop outside that area will be needed to meet the conditions in paragraph 5? It can be satisfied that a closed shop within the reference area is needed, but no more. This is not simply a technical or debating point. It goes to the heart of the limitations of the C.I.R.'s discretion to investigate only what is referred to it—a limitation with which I gathered, from the debate on the original Clause 117 (now Clause 121), the Opposition agreed. If we want to examine an industry, not just a part of it, then that is what must be referred to it.
I am not at all sure that noble Lords opposite have fully understood how far the provisions in the Bill will go already to meet their case. If Equity registers under the Bill and the Registrar approves its rules, and if the rules include a provision that anyone who accepts employment at less than the agreed rates is liable to forfeit his membership of Equity, I cannot see that it is at all likely that the Registrar will subsequently decide that Equity was not entitled to discipline its members. The collective resistance of Equity membership to accepting rates lower than those agreed does not depend on a pre-entry closed shop. It depends first on the will of the membership to protect their livelihood and the desire of employers to uphold the
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standards of the profession. It depends also on the unwillingness of Equity to accept into membership a person who by his previous conduct has shown that he is not willing to abide by the rules to accept engagements at rates agreed between Equity and theatre managers.
If noble Lords will look carefully at Clause 17, they will see that it is not an unfair industrial practice for an employer to refuse to engage a worker who has been excluded from being such a member. Clause 18 explains what that means. It follows that where a member of Equity takes employment below the rates, and if, because that is in breach of the rules, he is disciplined and excluded, it will not be an unfair industrial practice for Equity to refuse to allow him to be admitted to its membership when he again applies for employment. I should have thought that very few members of Equity, whatever the pressures within the profession, would be tempted to accept employment at less than the rates when they know that in so doing they would be jeopardising their whole career. I should have thought this was a very strong deterrent indeed.
I can only reiterate what my right honourable friend said in writing to Mr. Hugh Jenkins:
"I do not believe that the Bill will create insurmountable problems for the industry and, given the concessions we have made on the closed shop, I believe that with minor modifications existing agreements in the industry can continue to work effectively."
I would only say to the noble Lord, Lord Bernstein, that this is not an assumption; this is something that has been very carefully examined from both the legal and the practical points of view, and it is our considered opinion. Therefore, I regret that the Government are not in a position to recommend my noble friends to accept this Amendment.
3.38 p.m.
LORD GARDINER: My Lords, I am sure it is not only on this side of the House that noble Lords will have heard with deep disappointment what the noble Lord, Lord Drumalbyn, has said. We appreciate of course that he has his brief. What we really are engaged on on the Report stage of this Bill, I suspect, is trying to advance such arguments as will convince Mr. Carr that an exception for Equity ought to be made somehow in the Bill before its Third Reading.

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It is therefore not my intention to be at all contentious, but I should like to ask Mr. Carr how far we can agree, and see what the real point of divergence is.
Can we agree, first, that the reputation of the English theatre is at least as high as that of any other theatre in the world? Are there not always more plays by English playwrights, with English actors, on Broadway than there are American productions here? Is not one of the first things which nearly all visitors, particularly perhaps American visitors, want to see the English theatre? If we can agree about that, can we agree (and I have in mind, in particular, what the noble Earl, Lord Balfour, said) that this is an industry with not only an ephemeral aspect but casual labour and an extraordinarily high degree of permanent unemployment? Is there any other industry in which the average number of weeks worked in a year is 17 for men and 14 for women, as in the theatre; and an average of 9 days in films or television for men and 11 for women, and in which the average annual remuneration is of the order of £800 a year for men and £450 a year for women? As my noble friend Lady White said, this is really unique; it is sui generis and I should have thought it ought to be the aim of an enlightened Administration to provide an exception for an exceptional case.
If Mr. Carr agrees with that, then the next question I should like to ask him is, what does he say is the cause of this situation in this very unusual industry? If I may suggest the answer, I think it was that on which the noble Lord, Lord Conesford, put his finger when he said that this is not an industry at all, it is a profession and an art. Of course the stage has never called itself an industry; for some reason the film industry has. I think perhaps that is for two reasons: in the first place, it has for many years been the case—particularly since America has stopped making films here—that a very powerful position has been occupied by two groups which own so many large cinemas and have their own studies, so that in many cases one goes to them with one's film script and proposed cast, with the names of the producer and director, partly because frequently they put up either the whole or some of the money and partly
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because it is no good making a film if it is not going to be shown. The finance of the stage, on the other hand, is quite different. There are theatrical managements of long-standing, and also the money is provided by those people who, rather delightfully, are called "angels", and who, because of their love of the theatre, put up money for a particular production.
In the second place, it is perhaps because when a film has been made one has something in a tin box which one can sell. But when Lord Olivier and a large cast are playing Henry V, whether it be in a theatre or on film, what they are doing is acting, and that is a form of art. Is it not true of all the Arts that there is this very high permanent rate of unemployment, for the simple reason that there are always people who feel that this is the only thing they want to do in life and there are more of them than there is demand? All of us know that the painter says that if he starves in a garret, he must paint; certainly he will take a job as a waiter when he has to earn some money, but the only thing in which he is interested is painting. What proportion of those engaged in any of the Arts really make the sort of living which any worker in a motor car factory would look at for a moment? I do not know even whether the figures I have given for their average remuneration are anything outstanding in the sphere of Art. If one is unable to get into the Academy there is the wall on Hampstead Hill and there are the park railings; but there are always more books written than are published, and how many of the books published would produce the standard of living on which a motor car worker expects to live?
Here I should like to make two points: first, what is it in particular about which Equity is so frightened? The answer of course is Mr. Brimelow, because Mr. Brimelow has always been there. If I may remind your Lordships of the facts, Mr. Brimelow the plaintiff against Mr. Casson (as he then was), was the manager of a touring theatrical company. The facts I take from the report in 1924 (1) Chancery Division at page 302, as follows:
"From Christmas, 1922, until March, 1923, he ran a touring pantomime, which ended at Maidenhead. His company was then reconstituted on a co-operative basis, under which profits were to be equally divided, the chorus

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girls receiving a minimum salary of £1 a week. Under this regimé the plaintiff ceased to be the employer of members of the company. It came to an end on June 23, 1923. The plaintiff then began to run the company, and still ran it, as an employer, but on a percentage basis, with minimum guarantees. In the case of chorus girls, their contracts provided for a weekly wage of 3 per cent. of the net takings, with a guaranteed minimum of £1 10s. weekly, for one week's rehearsal without pay, and for `no play, no pay '. The contracts were for no fixed duration; they ran from week to week. No tour was booked for any fixed period or for any appreciable time ahead. The plaintiff admitted that under the new arrangement the chorus girls never got beyond their guarantee—that is to say, they never received more than their 30s. a week… Before the contracts were signed the plaintiff was asked by Kennedy's agent how he stood with the association, and replied: 'Quite all right. I have never been approached by any of the association ever since I have been on the road '. This statement was false, and the plaintiff knew it to be so."
The learned judge went on to say:
"For some considerable time past the Actors' Association (which included all the leading actors and actresses among its members) had been struggling to secure a living wage for chorus girls. Experience had shown in the past that in a very large number of cases the absence of a living wage drove such girls to prostitution. The minimum wage stipulated for by the Actors' Association, and embodied in what was known as the Valentine Contract, was in the case of chorus girls £2 10s. a week. Another feature obnoxious to the Actors' Association was the sharing system or commonwealth company, not because it was bad per se, but because experience had shown that in most cases most of the money went to the manager and the others were paid too little or not at all. It was a system obviously capable of abuse, and one in which failure would hit hardest those least able to afford it. The Actors' Association had for some time past occupied itself in dealing with the question of 'the bogus manager '—that is, a manager who recurrently failed to meet his obligations to his company or who paid them so little that they could not afford to live decently."
The learned judge found that some of the girls in this particular company had been driven to a life of immorality in that way.
The two things to note about this case are, first, that although it sounds like something from the middle of the last century, this was happening when I was taking my Bar examinations in 1924 and the embryo organisation for which Mr. Casson was acting was the Association of Touring Managers. That is perhaps an example showing that from the very first all the good managers and employees have always acted together—the Associa-
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tion of Touring Managers, the Variety Artists' Federation, the Actors' Association, the Musicians' Union and the National Association of Theatrical Employees. Another seven years elapsed before Equity was constituted. Here I should like to pay tribute to Mr. Carr's predecessor, who did so much to help Equity to arrive at the constitution it now has—I refer to Mr. Oliver Stanley, who was Minister of Labour in 1934 and 1935.
There is no employer/employee relationship in this country which is more happy than that in the theatre and films. Equity has at least obtained minimum standards of pay and minimum conditions; there are no strikes; Equity not only does not induce anybody to break a contract but it is adamant that any artist who makes a contract must carry out his contract, and there is no victimisation. Would it not be ironical if the result of a Bill intended to improve industrial relations were to break up this organisation?
LORD DRUMALBYN: My Lords, may I ask the noble and learned Lord this question? The noble Lord, Lord Bernstein, mentioned that about one-third of those who put on plays in the West End were not members of any employers' organisation. Is it suggested that they were employing labour at less than the agreed rates? If they are not employing labour at less than the agreed rates now, when they are not members of Equity, on what grounds is it suggested that there will be a tendency to employ labour at less than the agreed rates when this Bill comes into operation?
LORD GARDINER: My Lords, I do not think so. I understood my noble friend, so far as the theatre was concerned to refer to the West End Managers' Association, but there is also the Theatre Managers' Association; there are several reputable organisations, and we do not in fact get our Brimelows under existing conditions. The problem is: what would happen if the Bill were passed in its present form? It is always better perhaps to take a case one knows about, and I take a particular case to ascertain the noble Lord's view about it. I happen at the moment to be an "angel" to a limited extent in relation to a play which was sent to me. I read it and I thought it a good story and very funny. By the

669
time a sufficient number of other "angels" had been found the cast had been assembled and one of the well-known "try-out" theatres outside London had been obtained for two to three weeks. These things always have to be done very quickly, and so as to coincide. The show has been playing two or three weeks. Although tempted to do so, I will not mention the name of the play, because I do not think your Lordships' House should be used for commercials; but I can say that it has broken all records at the theatre; but there was no London theatre available. This is a situation which is quite well known in the theatre and is the rock on which many productions have foundered. The particular company that is putting on the play is a well-known management company, but it might have been a company formed especially for the purpose of this play, as happens in many cases—and still more so with films. Many companies are formed to put on one film.
That was the situation only three days ago, when the producer, who has his ear very close to the ground, heard a whisper of a rumour that some play might be coming off—quite unexpectedly I think, because this is the time of year, when all the tourists are in London, when the plays that are on probably continue to run better than at any other time of the year. He got on the telephone and found that the rumour was right. He was the first arrival, so to speak; he was offered the theatre and said "snap", and the play will be starting in the West End in ten days' time.
Supposing, at this point, that this Bill becomes law, what happens? The noble Lord will correct me if I am wrong. As I understand it, the Government are saying that even if it is a new company, the position is perfectly simple. The Government have specially put in Clause 17 and Schedule 1. It is quite easy, the company and the artistes have only to go together to their solicitors, who will instruct counsel to produce a case for the consideration of the National Industrial Relations Court—to give it its full title. When they have done that, the Court assembles. The members, as I understand it, are all part-time on that work, so it may be a matter of difficulty to assemble the Court; it is probably not worth doing for one short applica-
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tion. But when the Court has been assembled there will be the High Court Judge, the representative of the Confederation of British Industry, and Mr. Scanlon—or, I rather think, from what I have heard, probably not Mr. Scanlon—possibly a rather one-sided Court.
If the Court says there is a prima facie case the Commission must go into it. The parties go to the Commission, to satisfy it. They go into the detail, and then the Commission makes a report back to the National Industrial Relations Court, which says, "Yes, this is all right; counsel says he is instructed that all employees are agreed, but we must be certain; we will ask the Commission to take a ballot among all the eight members of the cast who are the company's employees and see whether there is a two-thirds majority ". I hope the noble Lord, Lord Conesford, is not going to be difficult at this point and ask me what is two-thirds of eight. Six would be three-quarters. If five and a half vote one way, that is reported back to the Industrial Relations Court.
I am bound to point out two things to the noble Lord, Lord Drumalbyn. While I am as passionately concerned as other people that everybody should spend as much money as possible on lawyers, we have only enough money to put on the play. And long before this all the cast will have gone; and also the theatre. Either you can get a theatre or you cannot. The effect of saying, "We quite agree with the peculiarities of this industry, and we quite appreciate that all the reputable managements and Equity are all agreed to the closed shop, but we cannot possibly make this binding in any way on some new company which is formed unless we go through this enormously elaborate procedure", will simply be to make the whole thing quite impossible. This is only one of three Amendments by which we are trying to put forward some sensible scheme for obviating this difficulty in this form of art. I have not put down an Amendment. My Amendments, as I know from experience, are always too clear, too precise and too short. If I put it down it would be at Clause 164(5): "This Act does not apply to Equity". Perhaps Mr. Carr would kindly consider whether that is not all we need.

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I must tell the noble Lord, Lord Drumalbyn, and, through him, Mr. Carr. that Equity has, I know, given the most careful attention to the two offers made by the Government. The first is that entry to Equity should be limited by some form of examination or certificate. Let me get this right. The noble Lord, Lord Drumalbyn, during the proceedings of May 11, at col. 994 of the OFFICIAL REPORT, said:
"I must acknowledge straight away that what has been said about Equity is absolutely true. It does a very fine job. I know out of my own personal experience that what the noble Lord, Lord Strabolgi, for example, said about maintaining standards of performance and vetting dubious contracts is right… I accept the need in the entertainment world to regulate entry to protect established workers and to safeguard reasonable standards and conditions of employment for those already in the industry… The Bill will not prevent unions from making agreements with employers about qualifications, skill, experience or the like, for employment in particular occupations…"
And on June 29, at col. 308, he said this:
"There is no doubt that the entertainment industry is an industry where employment is casual and intermittent, and where there is high unemployment. It is also very probable that the C.I.R. would find the criteria satisfied in respect of this industry… What it"—
the Bill—
"does not do is to prohibit an agreement to regulate entry into an occupation by laying down the necessary qualifications, training, skill or experience required of a person wishing to enter that occupation. It is not enough simply to say that there are no qualifications laid down for entry into the entertainment industry; it surely must be possible to devise qualifications so as to enable engagement to take place on that basis. It must be possible in some way to assess the skill, the potentialities, the talent of people entering the industry."
I want to assure the Government that I know that Equity has given the most careful consideration to this matter, but they find it to be quite impossible. The real reason, again, is simply that this is an art. One cannot imagine a situation where nobody would be allowed to paint a picture unless he obtained a certificate from an art school, or where nobody would be able to accept a commission to compose some music unless he had obtained a certificate from the Royal School of Music. Or may I speak of a line of country with which the noble and learned Lord, the Lord Chancellor, and I are rather more familiar? In order
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to be a successful barrister you must know the law and have some aptitude for advocacy. For the first we have an examination, because it is very proper, but we have always found it impossible to have an examination in advocacy. Every barrister knows men who have taken a First in jurisprudence at Oxford or Cambridge and a First in their Bar examinations, with Certificate of Honour of the year, but who have failed miserably at the Bar because they have no aptitude for advocacy at all. On the other hand, there are those who only scrape through their Bar examinations but become outstanding advocates. I very much doubt whether Sir Edward Marshall Hall or Sir Patrick Hastings did particularly well in their Bar examinations. I had the privilege and instruction of sitting in many cases behind Sir Patrick Hastings and at the first conference in any new case the first question always was, "There is no law in this, is there?". I hope it is not thought to be any demerit to him if I say that he was manifestly less happy in arguing a point of law before the Court of Appeal than he was in cross-examining witnesses or addressing juries on facts.
THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE): My Lords, the noble and learned Lord would do well to remember the statement of his predecessor and mine, Lord Erskine, that a man cannot become a good advocate unless he is also something of a lawyer. "The thing", he added "is impossible".
LORD GARDINER: My Lords, I quite accept that these things are matters of degree, but, as the noble and learned Lord knows, when you have passed your Bar examination with flying colours and have been called to the Bar, you still may not hold a brief until you have been apprenticed for some period to a barrister in Chambers, because of the difficulty of advocacy. There you will read all his papers, you will memorise all the facts of the case, you will consider how you would conduct the case if you were going to do it and then you go with him to the court and see how he conducts it. That is the only way in which you can learn. So I am afraid that is not really a practicable suggestion at all.
The other suggestion which the Government have made is the resurrection legislation proposal. I must get that right also.

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What the noble Lord, Lord Drumalbyn, said on June 29, at col. 310 of the OFFICIAL REPORT, was
"I would say, once again, that the Secretary of State has said that he will watch the position extremely carefully, and if a certain industry requires particular and special treatment, then he will consider whether that should be dealt with by legislation."
I know that Mr. Carr considered that this offer was a very important one to have made. In a letter of May 11, written to Mr. Hugh Jenkins, the honourable Member for Putney, who was at one time an official of Equity, he says:
"I acknowledge that we may be wrong in our assessment of the effects which the new legislation may have upon the acting profession. We have genuinely attempted to amend the Bill to meet your problems; and, as I have said, I believe we have provided a reasonable basis for the development of industrial relations both in the theatre and in other sectors where there are similar problems. If, in the course of time, it becomes clear that the Government has under-estimated the ill effects which the Bill's provisions may have upon industrial relations and conditions of employment in the theatre, we shall certainly be prepared to consider whether any further special, and possibly statutory, arrangements may be necessary in order to deal with the problems of the industry more effectively than is possible under the terms of the present legislation."
Equity naturally considered that and are perhaps hardly to be blamed for preferring to continue to live rather than being told, "When the Act kills you, we will think about legislation to resurrect you". But Mr. Carr was disappointed because, in a further letter written on June 24, he says:
"I confess I am a little disappointed with your response to the undertaking, which I gave in the final paragraph of my letter of 11 May, that the Government would be prepared to reconsider the position if, in the light of experience, there were undue adverse effects for the entertainment industry arising from the provisions of the Bill. That was not an undertaking lightly given."
Of course I fully accept the bona fides of anything which comes either from the
noble Lord, Lord Drumalbyn, or from Mr. Carr, but really this proposal, that if the Bill kills Equity consideration will then be given to introducing legislation to resurrect it, has caused me to work very hard to accept the bona fides of it. I think it must be due to the fact that Mr. Carr has not had a word with Mr. John Davies, who could tell him all about the Blagden Committee on Bankruptcy Law and how no legislative time has been found for that for 14 years and is not likely to be found in the next five years. It looks as though next year we shall have all the Common Market legislation, and the inevitable pressure during the Session after that will be enormous—if the Government are still here. Really, it is quite impracticable to expect Equity to accept this.
So I should like finally to ask Mr. Carr to consider again a question I raised a long time ago on this Bill, when I said that if the will was there to save Equity, why did not the Government, before the Report stage of the Bill, say to the draftsman, "The Government have decided to save Equity. You consider the best way to do it and draft a clause". Then we could have had that clause for the Report stage of the Bill. I must of course believe, if Mr. Carr says so because it is implied in the offer he has made—that he believes that if the Bill kills Equity it will be possible, by some form of drafting, to resurrect it. Why therefore can he not now instruct the draftsman to draft the clause which in that event he would have to do? If only he would draft it now, in readiness for the Third Reading, it would not be necessary for this Bill to kill Equity and for it then to be resurrected. It could continue to live.
4.6 p.m.
On Question, Whether the said Amendment (No. 41A) shall be agreed to?
Their Lordships divided: Contents, 62; Not-Contents, 87.

CONTENTS

Airedale, L.

Buckinghamshire, E.

Douglass of Cleveland, L.

Amulree, L.

Burntwood, L.

Gaitskell, Bs.

Archibald, L.

Burton of Coventry, Bs.

Gardiner, L.

Bacon, Bs.

Byers, L.

Garnsworthy, L. [Teller.]

Beaumont of Whitley, L.

Caradon, L.

Greenwood of Rossendale, L.

Bernstein, L.

Champion, L.

Headfort, M.

Beswick, L.

Chester, L. Bp.

Henderson, L.

Birk, Bs.

Crook, L.

Henley, L.

Brockway, L.

Delacourt-Smith, L.

Hilton of Upton, L.

Brown, L.

Diamond, L.

Hoy, L.

Janner, L.

Popplewell, L.

Sorensen, L.

Kennet, L.

Rusholme, L.

Stocks, Bs.

Leatherland, L.

Sainsbury, L.

Stonham, L.

Lee of Asheridge, Bs.

St. Davids, V.

Stow Hill, L.

Lindgren, L.

Samuel, V.

Sttabolgi, L. [Teller]

Llewelyn-Davics of Hastoe, Bs.

Segal, L.

Summerskill, Bs.

McLeavy, L.

Shackleton, L.

Taylor of Mansfield, L.

Morris of Grasmere, L.

Shepherd, L.

White, Bs.

Moyle, L.

Shinwell, L.

Wootton of Abinger. Bs.

Platt, L.

Silkin, L.

Wynne-Jones, L.

Plummer, Bs.

Slater, L.

NOT-CONTENTS

Aberdare, L.

Fraser of Lonsdale, L.

Mowbray and Stourton. L.[Teller.]

Ailwyn, L.

Goschen, V.[Teller.]

Allerton, L.

Grenfell, L.

Napier and Ettrick, L.

Amory, V.

Grimston of Westbury, L.

Northchurch, Bs.

Balfour, E.

Hacking, L.

Nugent of Guildford, L.

Belhaven and Stenton L.

Hailes, L.

Oakshott, L.

Berkeley, Bs.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

O'Neill of the Maine, L.

Bessborough, E.

Orr-Ewing, L.

Bridgeman, V.

Hankey, L.

Poltimore, L.

Brooke of Cumnor, L.

Harris, L.

Rankeillour, L.

Brooke of Ystradfellte, Bs.

Hatherton, L.

Rathcavan, L.

Buccleuch and Queensberry, D.

Hylton-Foster, Bs.

Reigate, L.

Caccia, L.

Ilford, L

Robbins, L.

Carrington, L.

Kemsley, V.

St. Aldwyn, E.

Clwyd, L.

Killearn, L

St. Helens, L.

Coleraine, L.

Kilmany, L.

Sinclair of Cleeve, L.

Colgrain, L.

Kilmarnock, L

Skelmersdale, L.

Cork and Orrery, E.

Somers, L.

Cottesloe, L.

Latymer, L.

Stonehaven, V.

Craigavon, V.

Lothian, M.

Strange of Knokin, Bs.

Crathorne, L.

Loudoun, C.

Teviot, L.

Daventry, V.

Lovat, L.

Teynham, L.

Denham, L.

Lucas of Chilworth, L.

Thomas, L.

Drumalbyn, L,

MacAndrew, L.

Tweedsmuir, L.

Dundee, E.

Macpherson of Drumochter, L.

Tweedsmuir of Belhclvie, Bs.

Eccles, V.

Mancroft, L.

Vivian, L.

Elliot of Harwood, Bs.

Merrivale, L.

Wakefield of Kendal, L.

Emmet of Amberley, Bs.

Milverton, L.

Willingdon, M.

Exeter, M.

Monck, V.

Windlesham, L.

Ferrers, E.

Morrison, L.

Wrottesley, L.

On Question, Amendment agreed to.

4.13 p.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 41B:
Page 133, line 27, at end insert—
"27.—(1) Where proposals have been made by one or more trade unions to one or more employers or to an organisation of employers for an agreement which, if made in accordance with proposals approved by the Industrial Court under this Schedule, would be an approved closed shop agreement and the employer or employers or organisation of employers has refused or failed to enter into such an agreement, then, if it appears to the Secretary of State that it is necessary for the purposes set out in paragraph 5(1) of this Schedule for the workers of the description or descriptions the subject matter of the said proposals to be comprised in a closed shop agreement, the Secretary of State shall refer such proposals, accompanied by a draft of the proposed agreement, to the Industrial Court. The Industrial Court and the Commission shall deal with such draft agreement as though it were
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a draft agreement the subject of a joint application under paragraph 1 of this Schedule.
(2) Where the Industrial Court makes an order in respect of such proposals in accordance with paragraph 8 or paragraph 14 of this Schedule, then the said proposals embodied in the draft agreement shall be binding upon the employer or employers or organisation of employers (as the case may be) in every respect as though such draft agreement had been made between the trade union or trade unions concerned and the employer or employers or organisation of employers concerned and as if it were a closed shop agreement within the meaning of section 17 of this Act."
The noble Baroness said: My Lords, I beg to move the Amendment in the name of my noble friends and myself. We have had such a thorough debate on the previous Amendment that I would not presume to take too much of your Lordships' time on this one, except that of course the previous Amendment was not agreed to. Had it been agreed, I should not have had to trouble your

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Lordships further, nor would we be moving the next Amendment but one, Amendment No. 41D. In the circumstances, as what we consider to be a sensible way of dealing with the situation has not been found agreeable by the Government, we have no option but to pursue our course.
The proposal that we have included in this Amendment is to deal with the situation which would be found, as we have already described, in this industry. My noble and learned friend Lord Gardiner described it with such brilliance that I felt that at the last moment the Minister might have got up and announced his conversion. I have never heard more persuasive advocacy—though it was interesting to feel, as my noble and learned friend was speaking, that perhaps only lawyers can now afford to finance theatrical ventures. The Amendment with which we are here concerned is to deal with this kind of industry only. It would have to be an industry in which an approved closed shop agreement would be applicable. I must admit that in this Amendment we have not defined the conditions in the industry as closely as in other Amendments; that is, by description of the nature of the employment, the high degree of unemployment, the casual and intermittent nature of the employment and so on. If that were the only objection to this particular Amendment, that could be quite easily remedied.
We are suggesting that if the union is of the view that only the closed shop procedure would be suitable and efficacious in the conditions in which they find themselves, and the employers are not prepared to enter into the agreement—or not all the employers, because this is the difficulty; there may well be some employers who will not, and we are trying to deal with the employers we discussed on the last Amendment—in those circumstances we feel that one must go to the highest source of appeal; namely, to the Secretary of State himself. In most of this Bill the Secretary of State has committed various functions to other bodies but does not intervene directly, and we are only suggestingt that he should do so in this particular Amendment because no other way seems open to us.
If we are unable to persuade the Government to move in the direction which we suggest, then almost as a last resort we are suggesting here that the union should have a right of access direct to the Secretary of State; and if he was satisfied that the union had made out a prima facie case that it was necessary, for all the purposes set out in Schedule 1, that there should be a closed shop agreement, that he should then refer the union's proposals (including such draft agreement as they might have prepared), to the Industrial Court. The Industrial Court and the Commission would then deal with the matter as though it had been the subject of a joint application by both the union and the employer, or the organisation of employers, as the case may be. Otherwise, in the circumstances we have already described, we fail to see how the closed shop provisions, which we are all agreed are necessary in this particular profession, can be brought about throughout the industry. We assume that they will be available in parts of the industry, but there can be sectors of the industry where the employers may not be co-operative, or where they may have so much else on their mind in the circumstances which prevail in trying to launch a production that they may feel that they really cannot be bothered to go through all the hoops which are set out in this Schedule.
I do not pretend that we would regard this as the ideal way of dealing with the situation, but we nevertheless feel that we must put it to the Government because, as I say, they have turned down other proposals we have made, including what we thought were the very reasonable ones in the Amendment we discussed immediately before this one. Therefore, we feel that the union should not be put in a position where, in certain sectors of the industry, an unco-operative or negligent employer is, in effect, given an unchallengeable veto in circumstances where I think we should all agree that the closed shop procedure is the proper course of action. In some other industries the time factor is not so important.
In other parts of the Bill, it is made quite clear that it would be an improper practice to put pressure on an employer but, in the nature of things, time is short. So we believe that in these circumstances an employer should not be given an

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absolute right of veto; that the union or unions should have the right of appeal to the Secretary of State, and should be able to say, "These are the conditions which we believe fully meet the very stringent proposals in Schedule 1. We simply ask you to look at them and say whether we have made out a prima facie case, and then refer it to the Industrial Court and the Commission and allow the normal procedure and examination to take place." My Lords, I beg to move.
LORD DRUMALBYN: My Lords, the Amendment which the noble Baroness has moved would have very much the same effect as Amendment No. 31A, which we discussed last Thursday. That Amendment would have dispensed with the requirement in paragraph 1 of the Schedule, that a closed shop can only be approved by the Industrial Court if both the employers' side and the union side want it. The effect of the Amendment would be to allow the proposals of one side or the other to be submitted for the Court's approval without any agreement between them. I was not quite certain whether the noble Baroness was suggesting that this Amendment, like the one with which we have just dealt, would also have extended to the whole industry, although I do not think that is the case. I thought she made a fleeting reference to it, but did not refer to it again.
This Amendment goes further than Amendment No. 31A. As the noble Baroness said, it introduces the Secretary of State into the arrangements. Where proposals from the union side, but not from the employers' side, are not accepted, the Amendment requires the Secretary of State to do what the Commission has to do; namely, to consider whether the criteria in paragraph 5(1) are met, and if, but only if, he thinks they are to pass on the unilateral proposals for processing under Schedule 1 as if they had been agreed between the parties. I need not go over again the argument that there ought to be agreement between the parties before a closed shop can be approved. We discussed that on Amendment No. 31A. I shall confine myself to the new point which the noble Lord, Lord Stow Hill, wants to discuss separately; namely, the bringing in of the Secretary of State.
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One effect of the Amendment would be that both the Secretary of State and the Commission might have to consider, one after the other, whether the criteria in paragraph 5(1) were met. As the C.I.R. is an independent body, it might well be that it would decide that they were not met, even if the Secretary of State thought that they were. In any case, the right body to examine this is the C.I.R., and the Secretary of State might wish to ask the C.I.R. to advise him on whether the criteria were met. If so, when the Court referred a matter to the C.I.R. all that would be left for it to do would be, first, to consider whether the purposes referred to in paragraph 5(1) would not equally well be met by an agency shop agreement, and then, later, if the Court had approved the agreement, to hold a ballot if one was demanded within the period allowed by paragraph 7(2).
Apart from the question of principle that there should be an agreed and not a unilateral application, we think there are serious objections to involving the Secretary of State in a matter of rights of this kind. He would undoubtedly be subject to political pressures. Imagine also, my Lords, the political pressure on the C.I.R. if the Secretary of State had to submit proposals to the Court without consulting it. We do not think there can, or should, be any substitute for agreement between the parties in the very exceptional circumstances of an application for an approved closed shop. Nor do we think there is much likelihood that the employers' side would refuse to agree to appropriate proposals where the circumstances were such that an approved closed shop appeared to be needed. As I pointed out last Thursday, in most cases where there has been pressure for a closed shop it has, so far as I know, come from both sides and I should have thought, in the kind of case which the noble Baroness and the noble Lord, Lord Stow Hill, have in mind, that there would not be any necessity for a provision of this kind. For the reasons I have given, we think that the Amendment is undesirable and we ask noble Lords to reject it.
BARONESS WHITE: My Lords, I do not wish to detain your Lordships for any length of time, because I fully understand that one does not wish to

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bring in the Secretary of State if one can help it. I can only repeat that we are proposing this procedure simply because we have found it impossible to bring the Government to a point where they will understand the realities of the entertainment industry. This is what the whole argument is about. If the Government had any real conception of how the industry works, then we should not have all these arguments. It is for that reason that we have to put forward one suggestion after another.
The noble Lord said that the situation we envisage would not arise, but of course it could arise. We have already said, almost ad nauseam, that there are employers in this industry who, because of the conditions of employment and the ephemeral nature of an organisation, are under less compulsion and may fail to enter into these agreements. Furthermore, there is the sheer practical difficulty of going through all the steps which were so graphically described by my noble and learned friend Lord Gardiner, which in many cases makes nonsense of the procedure. The whole closed shop procedure is going to be extraordinarily difficult to get through if on each occasion there has to be agreement by the employer and one has to try to persuade a possibly recalcitrant employer who has so much else on his mind, especially if he is trying to set up a pantomime or a summer show, that he may feel he cannot devote his time or money to going into all this procedure. The noble Lord referred again to the agency shop as a possible alternative, but I thought we had all agreed that the agency shop was not a practical alternative in the entertainment industry.
LORD DRUMALBYN: My Lords, I merely pointed out that the Schedule requires that the C.I.R. should consider whether the agency shop would be a possible alternative. Since the noble Baroness has been kind enough to give way, may I ask whether she appreciates that, according to her Amendment, where proposals have been made to one or more employers or to an organisation of employers, and those employers have refused or failed to enter into such an agreement, the proposals can become an agreement in respect of those employers only and not in respect of the whole industry?
BARONESS WHITE: My Lords, I do not know whether we are considering the whole industry in this Amendment. We do not think that the situation would be in the least likely to arise. But, as the Amendment states, there might well be an employer or a group of employers who refused or failed to enter into an agreement. There may be somebody who did not want to be bothered, or somebody who had carefully considered the matter and, on balance, decided that he did not want it. There are all kinds of situations. But having agreed that the entertainment industry is an exceptional industry, we are proposing an exceptional course—namely, to bring in the Secretary of State—which otherwise we should never have thought of doing. I do not think I should detain your Lordships longer, because we are coming to a very long Amendment which I hope my noble friend Lord Stow Hill will move, and I think I should leave this Amendment at that.
THE LORD CHANCELLOR: My Lords, I was not quite sure from the noble Baroness's last words whether she wants me to put the Question, or whether she is seeking leave to withdraw.
BARONESS WHITE: My Lords, I do not think that I wish to withdraw. It may be negatived, but I think one ought to let it stand, because we really are trying our utmost to get some recognition of this point.
On Question, Amendment negatived.
Clause 18 [Supplementary provisions as to approved closed shop agreements]:
4.30 p.m.
LORD GRAY LORD GRAY moved Amendment No. 41C:
Page 16, line 17, leave out (" a worker subsequently engaged ") and insert (" any other person ").
The noble Lord said: My Lords, we are here concerned with supplementary provisions relating to approved closed shop agreements. The Amendment, however, is addressed to a point of clarification only, and I do not think I need detain the House for long, but provide, perhaps, a brief intermission before, as the Marshalled List suggests, the curtain rises once again on the Equity story. In any case this Amendment is a companion to one

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which I moved and which the House accepted when, last week, we discussed the agency shop proposals. Furthermore, and likewise, it is the fruit of discussion with the Government since our Committee stage, and I have received official help with the drafting.
Clause 18 provides that a person shall be held to have refused to join a union with which an approved closed shop agreement has been made if he does not apply for membership of that union before the expiry of the relevant period. Subsection (4) of the clause defines that relevant period for different categories of persons. In paragraph (a), it allows three months to those workers who are affected by the agreement on the day on which it comes into force; in paragraph (b), which my Amendment seeks to alter, it allows one month to a worker subsequently engaged. I am asking the House to substitute in subsection (4)(b) the words "any other person" for the words "a worker subsequently engaged", and thereby to remove any doubt about the position of a person who becomes subject to an existing agreement by any process other than engagement, which itself will still be covered by the new wording. I hope the House will agree to this extension of subsection (4)(b) of Clause 18, and I beg to move.
LORD DELACOURT-SMITH: My Lords, may a ask the noble Lord, before he rises to reply on behalf of the Government, whether he could explain what categories of people there can be who will be embraced by the Amendment but who would be excluded by the original wording of the clause?
LORD DRUMBALBYN: I did not quite catch the noble Lord's point.
LORD DELACOURT-SMITH: I am asking what categories of people, if any, there could be who would be embraced by the wording of the Amendment and who would not have been embraced by the original wording of the clause.
LORD GRAY: Perhaps I am too early to exercise my right of reply, but if the House will give me leave to speak again perhaps I could answer the noble Lord. It is quite possible that any one company could have more than one works; it could have a series of works or offices, not even
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necessarily in the same neighbourhood. A person transferred within that employer's employ from any part of the organisation where he was not subject to an agreement to a section where he would be subject to an agreement would be caught. Equally, the other day I mentioned persons who were undergoing full-time training prior to their first job, or who were about to undergo a period of retraining prior to appointment to a post which was subject to such an agreement.
LORD DRUMALBYN: My Lords, I hope the noble Lord, Lord Delacourt-Smith, is as grateful as I am to my noble friend for having explained the purpose of his Amendment so clearly. The Government are very happy to accept this Amendment, as they did the corresponding Amendment moved earlier.
4.36 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 41D.
After Clause 18 insert the following new clause:
Provision for closed shop in certain trades or industries where unemployment endemic.
".—(1) Notwithstanding any provision in this Act if it appears to the Commission—

(a) that among workers of one or more descriptions in any trade or industry or section of a trade or industry there exists a high level of unemployment; and

(b) that such unemployment is endemic and is especially associated with work of that description or those descriptions in that trade or industry or section of that trade or industry; and

(c) that the employment is of a casual or intermittent nature; and

(d)that the employment is normally of short duration;

then the Commission may designate that trade or industry or that section of that trade or industry as the case may be for the purposes of the following provisions of this section which upon such designation shall have application thereto.
(2) If in such trade or industry or section of a trade or industry a trade union or trade unions or organisation or organisations of workers shall have enrolled into their membership a substantial majority of those working in the trade or industry or section of the trade or industry such trade union or trade unions or organisation or organisations of workers may declare that its or their members as the case may be employed in such employment will work only with other members of the trade union or trade unions or organisation or organisations of workers, and may further declare that only existing members of the

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trade union or trade unions or organisation or organisations of workers shall be employed in that trade or industry or section thereof.
(3) If such a declaration is made by any such trade union or trade unions or organisation or organisations of workers, it shall be an unfair industrial practice in respect of which a complaint may be presented to the Industrial Court under the provisions of section 101 of this Act for an employer to engage employees in that employment in that trade or industry or section of trade or industry other than employees who are members of such trade union or trade unions or organisation or organisations of workers contrary to the terms of such declaration, otherwise than with the express consent of the trade union or trade unions or organisation or organisations of workers which made the declaration:
Provided nevertheless that it shall not be an unfair industrial practice for an employer to engage employees contrary to terms of such a declaration and without such express consent as aforesaid if the employer has before engaging such employees applied in writing to the Commission for a direction that such employees shall on application by them be admitted as members of such trade union or trade unions or organisation or organisations of workers and the Commission has given such a direction and the employees concerned have applied for such membership in accordance with the relevant rules of such trade union or trade unions or organisation or organisations of workers:
Provided also that the Commission shall not make any such direction without giving such trade union or trade unions or organisation or organisations of workers an opportunity of making representations to the Commission and taking into account such representations."
The noble Lord said: My Lords, this is the third of the three Amendments. It embodies a completely different approach, and my principal hope in moving it is that the Government may be able to say that it contains proposals which they could with confidence—possibly recast, but at any rate in one form or another—embody in the Bill. Its objective, as your Lordships know, is again primarily to protect the position of Equity, but it is so drafted as to be applicable possibly to other industries in which the conditions described in subsection (1) of the clause appertain.
May I at the outset say this about the new clause? Your Lordships will see that the new structure which it embodies is that the Commission may designate a trade or industry, or section of a trade or industry, in certain circumstances. If the Commission is of opinion (and then I summarise paragraphs (a), (b), (c) and (d) of subsection (1)) that there is a high level of unemployment, that such unem-
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ployment is endemic and is particularly associated with that sort of work, that employment is casual and intermittent in that sector of industry, and is normally of short duration—if the Commission is satisfied that all those circumstances are present, then it is given the power by subsection (1) to designate that trade or industry for the purposes of the clause. If it so designates that trade or industry, or the section of it in question, then certain consequences result under subsections (2) and (3) of the new clause.
My Lords, before I go to subsections (2) and (3), may I indicate to the House the broad thinking upon which this new approach is based? It does not, in my submission to the House, constitute any departure from the structure of the Bill. It involves no infringement of principle. It is so conceived as to follow very closely in the train of consequences which stem from Clauses 120 and 121 of the Bill. If your Lordships will be so kind as to glance at those two clauses, it will be seen that they vest very substantial powers of inquiry (if I may so describe it) in the Commission. The Commission may be asked by the Secretary of State to undertake certain research and inquiry on a wide variety of topics, and to prepare a report setting out its conclusions. The topics on which, under Clause 120, the Commission can he asked to make an inquiry and advise are the wide range of topics which span things like collective bargaining, procedure agreements, matters with which a procedure agreement can deal, sole bargaining rights and so on, including the disclosure of information by employers and training facilities. So one starts with Clause 120, which vests in the Commission, at the request of the Secretary of State, these very wide powers of inquiry and advice.
That is supplemented by Clause 121 which goes further still and enables the Secretary of State to make regulations enabling the Commission, without being asked by anybody, to undertake certain inquiries on its own initiative. Obviously, the concept behind that, a concept with which we are all well familiar in relation to the existing Commission, is that the Commission will be a body assembling a great deal of wisdom and expertise, acquiring over the years much knowledge and information with regard to industry and particular sectors of industry and

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therefore in a position to advise the Government (and anybody else relevant) with great authority as to the proper course to be adopted in relation to any such problems that may arise.
To go back to the Amendment, what it is designed to do in subsection (1) of the new clause is to include among the inquiries which the Commission may undertake, either at the request of the Secretary of State or in pursuance of regulations vesting in it the power to make those inquiries, or completely without any such request, entirely on its own initiative, an inquiry with regard to any particular industry whether the conditions prescribed in (a), (b), (c) and (d) appertain in the case of that industry. If your Lordships accept Clause 18, then the Commission could on its own initiative undertake the task of looking into and examining the theatrical profession or industry, the film industry or any other sector of industry, and ask itself, if it thought it appropriate in the circumstances to undertake such a labour, this question: do the conditions specified in (a), (b), (c) and (d) exist in that industry or sector of industry: high unemployment and casual types of employment? If the Commission comes to the conclusion that the answer to that question should be in the affirmative, the Commission (and here one follows Clauses 120 and 121 closely) may designate that trade or industry. It is really only a slight extension of the powers now vested, under the Bill, in the Commission. Surely it is a very wise and sensible procedure, when you have a body like the Commission, which will grow in authority and confidence over the years, to entrust it precisely with that task.
Up and down industry there may be a number of sectors with regard to whom the description contained in subsection (1) may be true. Those branches of industry, your Lordships may well think, merit particular treatment. The whole burden of my argument in the present case is that the industry with which Equity deals merits that special treatment. The first step is that the Commission may designate the theatrical or film industry. If it does so designate, what follows? The result of such a designation is that, while the industry is so designated—and in "industry" I include a section of
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industry—if there is a trade union which can claim to have enrolled into its membership a substantial majority of those working in the industry or section of the industry, that trade union can make a declaration of the kind I shall shortly describe. The words "substantial majority" have been carefully chosen. It is not meant to refer to a union which can simply point to a large membership or even a majority membership. The wording is limited to the case in which some union, and in particular Equity, in the instanced case, can claim to have in its membership the vast majority of those engaged in the industry.
If one has that situation in the case of a designated industry, the union is enabled by subsection (2) to make a declaration that its members will work only with other members of the trade union and that only members of the trade union may be employed in that trade or industry or section. That is the scope of it. Your Lordships may say that that is an invasion of the general principles which the Government Front Bench uphold. I submit that it is not. It is not as if one is applying those provisions to all industries: it is applied only to industries or sectors of industry in relation to which the Commission has thought it right to make the necessary finding which enabled it to be designated. If, contrary to the declaration, or without the consent of the union, an employer engages employees who are not members of the union, he commits an unfair industrial practice and a complaint can be presented under the appropriate subsection of Clause 101 in respect of that unfair industrial practice. But in order that the position should not be left unfair to the employer, the employer is entitled to ask the Commission to direct that employees whom he wishes to engage shall, if they ask to be admitted, as members of the union, be admitted. Once they have made the application to be admitted as members he is perfectly entitled to employ them, whether they have been accepted or not and he, in employing them, does not commit an unfair industrial practice even if they are not members of the union. There is a proviso which requires the Commission to give the trade union an opportunity to be heard.
That is the general structure of this new clause, my Lords, It is nothing like

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so elaborate as it appears. There are two basic components, the designating process and the consequences that follow after designation. It is designed to achieve the same purpose that your Lordships have had described this afternoon and with that explanation I beg to move.
4.47 p.m.
LORD DRUMALBYN: My Lords, this new clause is a fairly elaborate and very ingenious scheme proposed by the noble Lord again to meet the needs of Equity, as I understand it. I think I should say at the outset that, while a great deal is made of the fact that even with the present closed shop agreements which are said to be effective, unemployment among actors is very high indeed, two conclusions can be drawn from the unemployment level. They suggest themselves. The first is that the closed shop has little to do with it; it is there already. The second is that it is almost impossible to assert what is a reasonable and acceptable level of unemployment. The theatre, as the noble and learned Lord, Lord Gardiner, indicated, is by its character overstocked. The purpose of the closed shop is not so much to reduce the level of unemployment to a half or a quarter, or any particular proportion, of the present level, but is primarily to ensure that actors who are engaged work at not less than the agreed rate. I think that the point has to be made that Equity maintain—and this is the difference here between us—that the only viable basis for limiting entry to the theatrical profession is previous membership of Equity; but they acknowledge that Equity membership is regarded as a substitute (as it were, a proxy) for previous relevant experience: it is an indication of previous relevant experience. The Government view is that previous relevant experience can be attested in other ways than by Equity membership alone. I think it is in that context that one wants to look at this Amendment.
First, the Amendment says that the Commission, without apparently having been given any reference to investigate a particular industry, may designate it as one which suffers from the defects mentioned in subsection (1) and as one to which, in consequence, the remaining provisions of the new clause should apply. In the course of his remarks, the noble Lord, I thought, rather tended to
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imply that it was not necessary to give the Commission these powers that it would have to investigate before it designated.
LORD STOW HILL: My Lords, I am sorry if I gave that impression, I was not intending to do so. I accept that under this new clause the Commission can undertake the inquiry on its own initiative. Under the similar Clauses Nos. 120 and 121, there has to be a request by the Secretary of State or regulations.
LORD DRUMALBYN: My Lords, the noble Lord does not say in his clause that the Commission may investigate; it merely says "may designate". From what he was saying, I think he was indicating that on second thoughts he would rather have put in "may investigate". I recognise that the Secretary of State might, if he thought fit, make a reference to the Commission, with a view to the purposes that the noble Lord has in mind; but the drafting would have to be looked at very closely were we to be in favour, in general, of this kind of procedure. Under the Bill, the Commission has no power to investigate matters not referred to it, except within the context of Clause 121. Noble Lords opposite, somewhat to our surprise, criticised that clause rather severely during the Committee stage, and they will see that, in deference to their wishes, we have put down an Amendment to leave it out. As was said by the noble Lord, Lord Stow Hill, the role of the Commission is to investigate and advise, and I would add, to conciliate as well. The noble Lord says it is a very slight extension of powers, but it seems to me to take the Commission outside the role of adviser altogether and to give it executive power, a role not at all envisaged in the Bill in the allocation of functions.
Secondly, the Amendment provides that an organisation or organisations of workers, whether registered or not, which contains a substantial majority of those working in the trade or industry or section can then make a declaration that its members are not willing to work with anyone who is not a member of that organisation or those organisations—I take it that the noble Lord did not exclude their working with members of other trade unions; for example, a member of Equity working with an electrician or a decorator, or whatever it might be

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—and that only existing members of the organisation of workers shall be employed in the trade or industry or section of it concerned. This is a very closed shop indeed, so far. And it is to be an unfair industrial practice to engage anyone other than an existing member—no ballot to determine the wishes of the workers in the industry; no consultation with the employer; the C.I.R. is not required to investigate this aspect of it at all. My Lords, this is a very sweeping proposal. Thirdly, it goes on to say that nevertheless employees other than existing members can be engaged if the organisation of workers gives its express consent. Fourthly, it allows employees other than existing members to be engaged if the employer applies to the Commission and gets from it, before engaging them, a direction that they shall be admitted to the union, on condition that they have applied for membership before they were engaged. I hope that I have faithfully summarised the Amendment.
As the noble Lord himself says, there is designation by the Commission without a reference or even an application, and a unilateral declaration of a complete closed shop by the union, subject to licensing of exceptions by the Commission. That is the essence of it. My Lords, this is completely out of keeping with the concept of the Commission's functions under the Bill, which are to be investigation, conciliation, recommendation and advice; not decision on the status of an industry or the licensing of an employer to admit new entrants to a union which is otherwise to be an almost monastic closed shop. Perhaps the most serious objection to the Amendment is that it is designed to meet a particular situation in a particular industry which the Government have already sought to meet. It is expressed in terms of general application to any industry which the Commission may think meets the criteria about a chronic or inherent state of unemployment.
I might add that the noble Lord, Lord Archibald, laid great stress during previous debates on the need to avoid delay in the engagement of employees in the theatre and film industries. By the time an employer had indicated his willingness to take on particular employees, the employees had applied for membership
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of Equity, the employer had applied to the Commission for direction and the Commission had considered the matter and given a direction, it would appear that quite some time must elapse, unless it is intended that the whole procedure should be virtually automatic, in which case it would simply be an elaborate facade. If it is not to be a facade and the C.I.R. are really to consider the employer's application, what are to be the criteria? If they are to be experience or talent, there is nothing which prevents them from being the criteria for employment, without any reference to the C.I.R. But can the C.I.R. really be a judge of these? If, on the other hand, one of the criteria is to be the state of employment in the industry at the time, how can the C.I.R. judge that, in the light of experience and talent and the desirability of not excluding an entrant with real talent?
My Lords, I suggest that this is clearly not the right way to cope with exceptional circumstances in a Bill designed to deal with industrial relations in general. Surely the right thing to do—and I must come back to this—is to make use of the power in the Bill to refer special cases to the Commission to investigate as they arise, so that it may make appropriate recommendations. What is certainly not acceptable is to make a provision of this kind which cuts right across the distribution of functions in the Bill. The Amendment is ingenious, but it is both incompatible with the principles of the Bill and also, I submit, unnecessary. My Lords, I am sorry to be rather firm about this, but we believe that the Amendment seeks to do what we regard as the wrong thing in the wrong way, and we cannot accept it.
LORD SHINWELL: My Lords, I wonder whether, for the purposes of clarification, the noble Lord, Lord Drumalbyn, would address himself to a point on which I dare to address your Lordships' House? The proposed Amendment appears to deal with one particular section of the theatrical profession that is associated with what is known as Equity. To my mind—the noble Lord, Lord Drumalbyn, admitted this—the clause is of general application. What is provided here in relation to Clause 121 could be applied not only to those associated with the theatrical profession or ancillary professions but also to general industry. Let us assume a situation which, at first

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sight, might be regarded as hypothetical but which might occur in the foreseeable future, arising out of existing circumstances—I refer to a large volume of unemployment and the problems which will arise. Let us assume that, for some reason over which the workers have no control—and neither has the appropriate trade union—there is something in the nature of a trade recession, as a result of which many men have to be laid off, for what period of time it is impossible to say.
Let us assume that it is a closed shop. But in a closed shop—and this has been admitted in the course of our frequent debates on the subject—it is understood that a number, perhaps a substantial number (it is difficult to forecast how many; it might be a mere handful or a substantial number) of persons employed on the shop floor have refused to join the appropriate trade union and decided to opt out, and are subject only to the payment of a contribution to charity or some organisation designated by the appropriate authority. What is to be the position there? If a number of men are laid off, are those men to be those who belong to the trade union or those men who have opted out of trade union membership and merely make the contribution asked for?
I would venture to assert that in a situation of that kind, which is not altogether hypothetical but is within the bounds of possibility, or even probability, those who are members of the union would resent a state of affairs emerging where they were laid off whereas those who opted out of membership of the trade union were retained in employment. This may be quite a novel point and hitherto no reference has been made to this possibility in the course of our debate. My noble friend, Lord Stow Hill, in his observations, has brought it to my mind and I think that it should be given some consideration. Putting the point quite simply, it would be this: in a situation where unemployment is rising which affects adversely the men on a particular shop floor associated with an important industry, if men are to be laid off, who should be laid off first—the men who belong to the trade union or those who merely pay a contribution, having opted out of trade union membership? I think, if I may say so with respect, that I am entitled, and your
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Lordships' House is entitled, to an answer to that question. In the opinion of the noble Lord, Lord Drumalbyn, there may be nothing in this point, but I am not so sure of that, and I venture to put it forward for the consideration of your Lordships.
5.3 p.m.
LORD DONALDSON OF KINGS-BRIDGE: My Lords, the question asked by my noble friend Lord Shinwell illustrates extremely well the difficulty of dealing with Equity because the situation he envisaged does not arise in the case of Equity. In relation to Equity one does not lay off people by degrees, but one closes the show down and so the whole lot go—the noble Lord, Lord Olivier, and everyone else. This illustrates the problem we are all up against. Most of this Bill is Party-controversial, but this particular item is not. I believe the Government are anxious to meet the case concerning Equity and I think generally they have shown this, but Equity has made it perfectly clear that what the Government have suggested is entirely unsatisfactory. My noble friend Lord Stow Hill has brought forward an ingenious Amendment in introducing more or less a new clause. This Amendment would introduce to the Bill, which is generally about one kind of industrial problem, something to apply to an entirely different one.
I wish to say only two things. I think it terribly disappointing that on a non-Party point of this kind the Government should go so little a way to meet us. It seems to me that the case put by Equity is unanswerable. The noble Lord, Lord Drumalbyn, has said nothing whatever about the main fear of the people running Equity, which is that if people are engaged who are not members of Equity they could provide casts for sharks and fly-by-night employers, whereas if they agreed to come in through Equity, Equity would say, "He left the cast in Bradford on Avon last week, and another one at Stockport at Tuesday this week, and he is not safe to deal with; you cannot take a job from him." This is absolutely fundamental to the whole question. The greater the over-supply of would-be workers the more serious is the situation. It is a situation which is utterly different from the industrial situation to which most of the Bill applies.

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I think it rather dreadful that a Government with the talent possessed by noble Lords opposite cannot apply their minds to this perfectly simple problem. Do you want to do something which everyone knows to be wrong, or to maintain something which people at the moment think is right? The noble Lord, Lord Drumalbyn, suggested that there should be a ballot, but every noble Lord's young and beautiful daughter is a potential voter in this. There is no one you can choose to ballot. There is no working force in the acting profession without Equity. Anyone could walk on any stage at any time and do anything and would qualify. I feel that this is a serious attempt on the part of my noble friend Lord Stow Hill to make a constructive suggestion which should be dealt with more generously. I think the comment made by my noble friend Lord Shinwell deals with an extremely difficult matter, but it does not apply to the problem I am dealing with. However, I think it is a real problem and that it needs an answer.
LORD SHINWELL: My Lords, I raised it only because the noble Lord, Lord Drumalbyn, himself admitted that the proposition applied not only to Equity but was of general application. I take the point about Equity and I agree with what my noble friend Lord Donaldson of Kingsbridge has said; but it seems to me that if this Amendment were accepted it would have general application. All I want to know is, what would be the position if unemployment increased in a particular section of industry?
LORD DONALDSON OF KINGS-BRIDGE: My Lords, I thank my noble friend and agree. I was about to finish on the note that what I have said does not excuse the noble Lord, Lord Drumalbyn, from answering the question put by my noble friend Lord Shinwell, too.
5.7 p.m.
LORD BERNSTEIN: My Lords, I support the Amendment which has been so clearly explained by my noble friend Lord Stow Hill. My noble friends Lord Donaldson of Kingsbridge and Lord
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Shinwell have raised other points which should be considered.
My Lords, surely we can assume that the Government will have some trust in some people outside their own Ministry. This Amendment suggests that the Government should place some confidence in the Commission that they will be responsible for appointing. The Commission would be able to move quicker than the other place and to make a change if it were necessary. This will not be so quick as some noble Lords on this side of the House would wish them to move in regard to Equity and A.C.C.T., but it will be quicker than a Ministry or a stolid Whitehall official.
When I was giving the figures about the West End theatre I perhaps did not explain the reason why I gave those figures. It was to point out the difficulty that there is in getting people in the managerial organisation as quickly as they have the inspiration and desire to put on a show. Managerial organisations consist of responsible people with fairly strict rules—desirable in themselves—about vetting applicants for membership. This involves lengthy investigation, at the conclusion of which it would he too late as the productions would be over and the casts dispersed. Many people would then have lost money before a decision had been come to. The idea behind this Amendment would allow the Commission to move in before the undertaker. I suggest that that is better than the promise of the kiss of life.
5.9 p.m.
LORD DELACOURT-SMITH: My Lords, I should like to offer a few words on the Amendment now before us, but I do not wish by so doing to close the debate or in any way to preclude or discourage my noble friend Lord Stow Hill from replying to the debate before the vote is taken, if, unhappily, it should be necessary after all to proceed to a vote.
My Lords, we are dealing in this Amendment with one of a series of efforts made by noble Lords on this side of the House to deal with a problem which is exemplified by the position of Equity. We have put forward a series of Amendments designed to deal in one way or another with this problem, but all have been rejected by the Government. It must, I think, be rather irksome for the

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Government that there are facts and problems of industrial situations which do not easily accommodate themselves to the rather rigid lines which they have laid down in the Bill.
I am quite sure that there is widespread disappointment throughout the House this afternoon at the response which we have had from the Government on this matter and at the response which we had, on Tuesday last I think, when the noble Lord, Lord Drumalbyn, took up what I thought to be a rather dogmatic position (particularly for him because he is not inclined to be a dogmatic person) saying that in the whole matter of which this was a part the Government had moved as far as they could possibly move and had taken their stand and could go no further. I hope that he will not maintain that position on this Amendment and that at least, if he cannot accept it, he will give some indicaion of a real desire to go further to meet this problem.
I do not feel that many of the noble Lord's detailed arguments—excessively detailed, I thought, in some respects—about the wording of the Amendment were convincing. I am surprised that he should have continued such an attitude, in spite of the case that had been put up on an earlier occasion, particularly by my noble friend Lord Archibald, and again this afternoon by my noble friends Lord Stow Hill, Lady White, Lord Bernstein, Lady Lee of Asheridge, Lord Shinwell, Lord Donaldson of Kingsbridge, and of the completely unanswerable case I thought of my noble and learned friend Lord Gardiner. The noble Lord has not replied to the substance of the case, put forward with such a wealth of detail and cogency from differing points of view. I was surprised at his references to the closed shop in relation to unemployment. It has never been the argument that a closed shop would prevent unemployment in the acting profession. If Equity and the other unions in the entertainment world had followed far more rigid and restrictive attitudes, then over a period of time the level of unemployment might not have been so high as it currently is, but they have judged—and I believe judged rightly that the course they have followed has been the one in the greatest long-term interests of the theatrical profession and of the British theatre.
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There is certainly no argument at all for what the noble Lord, Lord Drumalbyn, seemed almost at the point of saying; namely, the fact that there was such high unemployment suggested that this kind of regulation in the industry was unnecessary and ineffective. Surely the argument is twofold. Without the regulation which has grown up over many years, unemployment would have been even higher than it is. After the figures we have heard quoted, none of us could think that the situation is one which any reasonable person would want to contemplate. Secondly, without this kind of collective regulation and this is perhaps the vital point—the living standards, exiguous already in the case of the vast majority of members of the profession, would be subject to still further attack and erosion. These are the justifications for a measure of this sort, put forward to deal in a balanced fashion with a happily unusual situation.
What has the noble Lord said in response to all the weight of argument which has been heard not only from this side of the House, because when we debated this matter in Committee powerful speeches were made by noble Lords in all parts of the House. I do not ever recollect a case when the sense of the House was so manifest as it was in that debate, and frankly I was astonished that the Government did not see their way to make some move to meet the feeling so widely and strongly expressed.
I do not think that I am misinterpreting the noble Lord, or summarising him unfairly, if I say that the crucial point he made this afternoon was that we must rely on the goodwill and public spirit, the loyalty and concern for the profession, of responsible managers and actors and actresses. That was the essence of his answer to our case. There is no division about the fact that we are, fortunately, able to rely upon the loyalty and concern of the great majority of managers and the great mass of those who have given their lives to this profession. But the whole history of the British stage in the twentieth century shows that we cannot rely upon these facts in themselves being sufficient protection. While these things are the foundation of the arrangements that have come into being, the members of the profession would be the first to

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say that their goodwill and loyalty and their concern for the stage are not enough. All these things must be organised into some formal institutions otherwise, with all the goodwill and concern, they will find their efforts greatly prejudiced by those who do not adopt these standards. There are those on the management side who are ready to try to make money quickly and to take a gamble, but it is a gamble at the expense of those they are employing.
On the other hand, naturally attracted by its glamour and unique character, and driven by pressure of an unemployment rate even higher and employment even more difficult to find than they expected and, despite the advice of the trade unions and their own commonsense, there are those who come into the profession and accept engagements with very poor conditions and rates of pay. This was exactly the situation which existed in the late 'twenties and early 'thirties, before the present form of collective regulation of the theatrical profession came into existence. I do not believe that there was any less goodwill on the part of management, or any less concern for the profession on the part of actors and actresses, than there is to-day, but experience has shown that without some kind of arrangements of the sort envisaged in this Amendment the reasonable standards of the profession could not be maintained.
We are not talking here of things that are illusory or theorotical. One has only to look over a period at the Newsletter published by Equity to see that even now, with the standards that have been established, every month there are still cases arising in which members have to be instructed not to take engagements with particular ephemeral managements. They are the minority, of course. Surely all of us want them to remain the minority, and to remain subject to the strong collective regulations of the two sides of the industry, dominated by responsible people on both sides. We have to bring into this Amendment, to try to fit into the framework of the Bill, the various arrangements concerning the Commission. Under the aegis of the Commission would continue the kind of sensible regulation which has been so good for the profession and for the stage.
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We are not talking of strengthening or weakening the trade unions. I am talking of the strengthening or the weakening of the whole collective regulation of the theatrical profession and other professions which have similar problems. This is a serious problem. Noble Lords opposite must surely recognise that they have not themselves produced an answer to it; and it is not good enough for them to go on rejecting, one after another, the variety of efforts which we have made, and which noble Lords have made elsewhere, to try to propose practical solutions to this problem.
5.21 p.m.
LORD BEAUMONT OF WHITLEY: My Lords, I am sure that on the whole there is definitely a desire on the part of the Government to try to meet the problem raised by Equity, and I am also sure that their failure to do so by not accepting any of the Amendments that have been put forward stems from a complete lack of understanding of the theatrical profession itself. If this is so, I think they will admit that this is the nature of the two sides of the argument, that they think the results of this Bill will have one effect and the rest of us think it will have another. If this is so, we are brought back to the final and almost unanswerable question asked by the noble and learned Lord, Lord Gardiner, at the end of another Amendment. If they wish to help—and they have said that if as the result of this Bill Equity suffers they will do something about it; they will produce more legislation—why cannot they nut it into this Bill, and if they say that to put it into this Bill would be to incorporate matters which they would rather not incorporate unless they have to, why do they not put the machinery for amending legislation into this Bill before it receives the Royal Assent?
The case for Equity has been argued this afternoon very strongly and fully, and it is not my intention to argue any of it again. I merely rise to my feet before the debate is wound up to say that later on in the Report stage my noble friends, the noble Lord, Lord Archibald, and myself have an Amendment down, No. 98, which is designed to deal exactly with this matter, to write in the potentiality of putting this Bill right if it goes wrong without introducing completely

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new amending legislation. I hope that the Government will take note of all that has been said this afternoon, and if they are unable to accept the Amendment we are debating to-day that they will at least have another think before we get to the stage of that Amendment. If it should be, as it may be, that they do not regard Amendment No. 98 as sufficiently well drafted, I hope that they will consult again with their own draftsmen as to some way of meeting the Equity point, if not immediately in this Bill then in some way so that it can be activated without new legislation.
LORD GARDINER: My Lords, before my noble friend Lord Stow Hill replies, may I say that I hope the Minister is going to say something. He has not so far made the slightest attempt to answer anything I have said. It may be that he has not got any answer, but he did not make any observations on anything I said. Do the Government agree or not that of all employer and employee relations in the country this is a very good example indeed of how good they can be? Do the Government know of any other sphere in which relations between employer and employee are as good? If so, do not the Government agree that it would indeed be an ironical thing if, in a Bill which is intended to improve industrial relations, so far as this art form is concerned it will merely destroy them? Do they agree that if Equity and the managers have gone through Clause 17 and Schedule 1 and a closed shop has been approved, if a new perfectly reputable manager comes along and is accepted by the other managers and by Equity they cannot make with their cast the same agreement without going through all the paraphernalia of Clause 17 and Schedule 1? Surely that cannot be right. The result can only be that the play could not be put on.
The Government, while finding difficulties about whatever Amendments are suggested, have come forward with no proposal of their own except the proposal that when Equity is broken they will then consider legislation which will resurrect it. Would it not be possible, as was suggested by the noble Lord, Lord Beaumont, and myself for the Govern-
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ment to produce now the sort of clause they have in mind? Mr. Carr would not have suggested this if he had not believed that there is a clause by which, when Equity is broken, it can be resurrected. Cannot they now produce this clause so that we can consider it then?
LORD DRUMALBYN: My Lords, I did not reply to the noble and learned Lord on a previous occasion because of the rules of order at this stage of the Bill, but if the House will give me leave I shall gladly respond. May I first of all deal with the point raised by the noble Lord, Lord Shinwell. I doubt whether it really comes under this Amendment. The question he asked was: "Who is to be laid off first in the case of unemployment on the shop floor? Is it to be the non-members of the trade union within a closed shop—those who make a contribution to charity—or is it to be the members?" I think it is quite clear from the Bill that if the criterion of whom to lay off should be, "Are you or are you not a member of the trade union?", that would be exercising discrimination, so that that could not be done within the terms of the Bill as it is at present.
My Lords, turning to the broader aspects of the debate we have had, I would certainly again acknowledge the efforts of noble Lords opposite to deal with the Equity problem, but I hope that they will acknowledge what has been done already in this Bill. After all, approved closed shop provisions were put in largely on the representations of Equity and of the seamen's union. I think it would be unfair not to recognise that the Government have gone a very long way indeed, despite the principles enunciated in Clause 5 of the Bill, to meet the point of Equity. Quite frankly, the Government believe they have gone as far as is necessary and that the arrangement they are suggesting will meet the needs of Equity. Obviously Equity would like to make doubly sure of this and I do not blame noble Lords for bringing in further provisions and asking us to accept them. But there are limits to which one can go within the framework of the Bill as it stands at present without violating and upsetting the whole principle of the Bill and I do not think we ought to do that at the present stage.

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The noble Lord, Lord Beaumont of Whitley, asked: Why do you not put the machinery into the Bill? We have put the machinery into the Bill. We have done it in the approved closed shop arrangements we have suggested. To say that we should go further and put in some new machinery to meet the fears that have been expressed, when the Secretary of State himself and his advisers believe that those fears are not well grounded, would be rather an absurdity. The argument that because we have refused a number of Amendments, therefore we should accept this one, is not a particularly good one. I say to the noble Lord, Lord Stow Hill, that in spite of the gracious way in which he moved the Amendment, this is probably the least desirable of the Amendments he has moved and the furthest away from any we could have accepted. The fact that there is unemployment in an industry surely cannot in itself justify giving a union, which claims a substantial proportion of the workers in the industry as members, power to make a unilateral declaration of a closed shop limiting membership to existing members except with the consent of or with direction from the Commission. That is not a viable proposition.
It is stated that living standards will be subject to further erosion, but no proof of that is given. I ask this question. One-third of those who are putting on plays in the West End are not members of the employers' organisations (I think this is what the noble Lord, Lord Bernstein, said), but are they, or are they not, maintaining the rates that are agreed? I strongly suspect that they are maintaining them.
LORD BERNSTEIN: May I answer that, my Lords?
LORD DRUMALBYN: Yes, certainly.
LORD BERNSTEIN: My Lords, the point is that these are organisations that come into production for a single play or a single film. They are not accepted as members of either the Film Producers' Association or the West End Managers' Association until they have been vetted and it is established that they are reliable and responsible people. There is nothing wrong with them—they are not fly-by-nights—but they honour the Equity agreements because, if they did not, Equity, with its present power, would take facili-
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ties away from them and they would not be able to survive.
LORD DRUMALBYN: My Lords, that is exactly the answer to the noble and learned Lord, Lord Gardiner. He put up the proposition that each of these so-called ephemeral companies, which very often have a well-known producer who floats a new company in order to deal with a particular production, would have to make separate application for a closed shop agreement. Of course that is not so. They will go on exactly as they have been doing before. The West End producers will continue to observe the rules agreed in just the same way as they have in the past. The same applies to what the noble Lord, Lord Donaldson of Kingsbridge (who is not now in his place), was saying. Equity lays down its rules and, as I said before, if those rules are approved by the Registrar as being reasonable it can discipline those who do not observe them, including its own members. So anybody who does the things referred to—leaving staffs quite un-catered for in different distant parts of the country—will have a good deal of difficulty the next time he comes along, if ever he does come along again, as I daresay he will, because in such a case Equity will be very careful indeed to ensure that the rules are observed. I cannot see that there is going to be any difference in the future. Of course, I am not an expert in this field, but I have been to more trouble in going into this particular aspect of the Bill than in going into any other single aspect of it, and I say two things to your Lordships. First of all, I wholly agree and I am convinced, just as my right honourable friend is convinced, that these Amendments have not been necessary. We might turn out to be wrong and, if we did, then the Secretary of State says that the appropriate action would be taken. But until we know what turns out to be wrong we cannot possibly take the appropriate action.
To sum up, my Lords, it would not be fair to say that the Government have done nothing. They have introduced this closed shop procedure; they are making two other Amendments at this stage of the Bill, and we have gone a very long way, and I think many members of Equity recognise that we have gone a very long way, towards meeting the arguments that have been put up by them.

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One must also face the position that the Amendments go far beyond the protection that exists at the present time in Equity. This may be right or it may be wrong, but it is as well to recognise that this issue is not just a question of making an exception in the Bill; it is going very much further than the existing circumstances at the present time. So I do not think that, at this stage of the Bill, we should be right to do what is proposed, given the principles set out in the Bill and given the Secretary of State's belief that it is not necessary to do so.
5.36 p.m.
LORD BROWN: My Lords, we are all pretty familiar with the situation in this House this afternoon. We know what it is like to be a Minister on the Front Bench. I have a shrewd idea of the situation in which the noble Lord, Lord Drumalbyn, is placed. My heart bleeds for him. He is putting up a magnificent stonewalling performance but, with great respect, he is not answering the questions and points made by my noble and learned friend Lord Gardiner or by the noble Lord, Lord Beaumont of Whitley. The point has been made, for example, why cannot the Government, knowing that a place for legislation is difficult to find by any Government—and that it would be extremely difficult to find a place for legislation amending the conditions of a single industry such as that which Equity represents—give an assurance now that they will be prepared to give the Amendment of the noble Lord, Lord Beaumont, very careful consideration? This, I am quite sure, would cause my noble friends on the Front Bench to withdraw their Amendment. But the noble Lord, Lord Drumalbyn, has not touched on that. He goes on implying that the situation is probably all right. He has not met the point that this is an industry where there are very good relations—it is probably one of the best industries in the country in this respect—and what a tragedy it would be if a Bill, designed to promote good industrial relations, had the result of spoiling very good relations in one industry. It is certainly not going to help relations in a number of other industries.
Quite obviously, the noble Lord, Lord Drumalbyn, is not in a position to rise and make any reassuring noises. Perhaps
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he might after I have finished speaking; but if he is not then I am quite sure that the noble Viscount, Lord Eccles, sitting on the Front Bench, is seriously disturbed. The noble Viscount is Minister for the Arts and knows what this means to this artistic profession. I feel certain that a number of Members on the opposite Benches are going to vote loyally with their Party but are nevertheless very disturbed about this issue. I appeal to them to help Lord Drumalbyn. He cannot do anything about it. He must have some buttressing behind him to go back to the Minister of Employment and persuade him that his rigid stand on this point is not in the interest of the Government or of Equity, or political realism or anything else. Cannot we just for once in this House fling Party attitudes aside? I have given an example when I have sat on these Benches on a number of occasions and refused to vote with my Party because I thought it was wrong. I have not seen many others show the courage of their own convictions. I am sure that on the opposite Benches a number of Members have been convinced by the arguments put forward in the debate this afternoon that in fact the Government are making a mistake—probably through ignorance; I am not going to imply anything else.
I appeal to Members on the other side to help the noble Lord, Lord Drumalbyn, and the Government to do the wise thing, to show the dignity of this House by saying that this is not good enough and to vote in favour of this Amendment. No doubt it is not particularly relevant, in the light of the other Amendment which has fallen, but it will cause the Government to re-assess their position and come back, and we shall have done something really worth while in this House to help an extremely valuable industry. I am making an appeal to the other side, when it comes to a Division, to sit tight and to show the independence of this House in dealing with a matter which is not a political matter but a matter of pure logic.
5.41 p.m.
LORD CONESFORD: I assure the noble Lord, Lord Brown, that if I thought that any of these Amendments was good I should vote for it. I do not believe that this Amendment is a

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possible way of dealing with the problem. At the same time, I have not changed my view from what I said at a much earlier stage, part of which was quoted by the noble and learned Lord, Lord Gardiner, in a most brilliant piece of advocacy in support of one Amendment.
As the House may know, I am not happy about Clause 17 and this Schedule. I am against this legislative provision for a closed shop for various reasons, which I have given on earlier occasions and which I shall not now repeat. But at the same time I thought that there was a great deal to be said for what I believe to be the Government's aim behind this clause and Schedule. They wish to ensure that the other provisions of this Bill do not do serious injury to Equity or to the Seamen's Union. I believe that to be their object. But for some reason they would not state that simple object, and as a result Clause 17 and the Schedule appear to have caused a doubt in certain quarters about whether the Government have saved what they wished to save. There is also a fear in the minds of many of us that they have given an opportunity for others to ask and press for a closed shop, a claim outside any Parliamentary control, for a number of bodies who have no case for it whatsoever.
My objection to the Government's scheme is that they have not carried absolute conviction that they will save what they wish to save, and have caused fears that they will enable a closed shop to be introduced where no closed shop should be introduced. I think that the reasons given by the noble Lord, Lord Drumalbyn, in his earlier intervention—I am afraid that I missed part of this debate—were very good reasons. I did not vote in the ensuing Division because I felt I was in great difficulty, holding the views that I did. But I think that the Government are quite right to resist these Amendments. If anything at all is reconsidered at this stage I hope it will be the possible alternative: that, instead of this immense complexity in providing for the closed shop by the clause and the Schedule, the Government will consider a very simple Amendment along the lines that the noble and learned Lord, Lord
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Gardiner, said he had contemplated: that the Bill should not affect Equity.
BARONESS WHITE: Before the noble Lord, Lord Stow Hill, replies, may I again plead with the Government to recognise what the noble Lord, Lord Conesford, has reinforced in his remarks about the speech of my noble and learned friend: that although we dearly love Lord Drumalbyn we do not love the way in which the Government have dealt with this particular matter. It has not been effective. We are all convinced that they wish to do the right thing, and I would not for one moment suggest otherwise. They are quite sincere in trying to meet this particular problem. What all of us are trying to tell them is that in the belief of those in a position to know their proposals will not be effective.
What disturbed me somewhat was the remark made by Lord Drumalbyn with reference to the speech made by the noble Lord, Lord Beaumont of Whitley. With very great respect, I am sure that when the noble Lord looks at Hansard tomorrow he will appreciate that what he said in reply to the noble Lord, Lord Beaumont, was really quite beside the point. The tenor of what the noble Lord was saying was that, even if Mr. Carr is in earnest—as all of us fully accept he is—in his assurances of possible subsequent legislation, we are all experienced people in this House and we know the difficulties of getting legislation in the list, however much one may wish to have it in. Surely the sensible thing is to put machinery in the Bill whereby some alteration could be made in favour of Equity and the Seamen's Union without having to have a fresh Bill. We do not believe that a Bill dealing with this particular matter is going to be practical politics.
It disturbed me greatly when the noble Lord apparently misunderstood the noble Lord, Lord Beaumont, and said that the machinery existed in Clause 17. As Lord Conesford pointed out, Clause 17 really does not do the job. I sincerely hope that the assurance given in the letter to which the noble and learned Lord, Lord Gardiner, referred, from the Secretary of State on June 24 to Mr. Hugh Jenkins, will lead the Government to what is surely the logical and desirable next step if they cannot accept this particular

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Amendment—which I hope they will do—that is, at least to take this very seriously indeed. In writing that letter, the Secretary of State repeated an assurance which he had given earlier: that if, in the light of experience, it was found that there were undue adverse effects upon the entertainment industry arising out of the provisions of the Bill, the Government would be prepared to reconsider the position. He went on to say that that was not an undertaking lightly given it was given after very careful consideration of the obvious difference in view between them as to the likely effects of the Bill. If that is the position of the Secretary of State, then I hope that, well before the time when we come to debate Amendment No. 98, the Government will give very careful consideration to including in 'this Bill provisions whereby, if our fears prove to be better founded than their hopes, something can be done without the full panoply and paraphernalia of a full Bill which we do not believe we should get in time.
5.47 p.m.
LORD STOW HILL: My Lords, I wish to reply very shortly, because very powerful speeches from this side of the House have contributed to the debate. The only reason I wish to reply is because I submit that the noble Lord, Lord Drumalbyn, misunderstood some of the effects of this Amendment. It is really not drafted as unthoughtfully as I believe he considers it to be. May I begin with subsection (1)? To begin with, he said that there is no provision in it for the Commission to make inquiry. Nor is there in Clause 120, but it is obviously implied by the words, "if it appears to the Commission". Secondly, he asked what criterion, in the form of level of unemployment, the Commission was to take as the test. With the greatest respect, that also is a misunderstanding. There are four separate requirements, each of which has to be complied with. Not only has there to be a high level of unemployment; it has to be unemployment characteristic of that particular sector of industry: the word "endemic" is used. That is what is intended. It has to be something that one cannot separate from that sector of industry when it is considered. It has to be the sector of industry where, if one is unemployed,
710
one can hope at least for employment of a casual or intermittent nature and that in any event the unemployment will be of short duration.
With great respect to the noble Lord (I know that he has given this thought and he gave a very careful and courteous answer), it is greatly to misunderstand subsection (1) to suppose that all the Commission has to do is to take a careless glance and say, "Yes, there is some unemployment there." That is miles away from what the Commission has to do. It has to go into it most carefully, and see whether it is one of those exceptional sectors of industry of which all these four situations can he predicated.
LORD DRUMALBYN: My Lords, I was simply speaking of the criterion for giving a direction in the first proviso, not the criteria under subsection (1).
LORD STOW HILL: My Lords, certainly those are the criteria which enable the Commission, if after inquiry it thinks those criteria are satisfied, not to give the direction but to designate that sector of industry. I must have been remiss if I did not say that. That is what I certainly thought I had said, and I had something to do with the drafting of it. If the Commission thinks that all those things are present it can then designate that sector of industry. I thought there really could not be much disagreement about that, but perhaps I am wrong.
Then the noble Lord criticised the provisions of the next two subsections, broadly upon the basis that they were far too drastic. I frankly accept that their object is to enable a closed shop to be set up. They would fail in their object if they did not provide for that. The noble Lord reproached us for ingratitude in that he, with his advisers and his colleagues, had embodied Clause 17 into the Bill in order to meet the predicament of Equity, and implied that we should not go further. But the whole reason for this debate and for our discussions this afternoon is that Equity, and those who are concerned with the welfare of Equity, after examining Clause 17 are profoundly and absolutely convinced that Clause 17 will not meet the requirements of the situation. That is the whole point. Therefore, while I am sorry if the noble

711
Lord thinks we are ungrateful to the Government, that must be our answer, and we would not be doing our duty if we did not forcefully represent to the Government that in our view, and in the view of those who have been advising us, Clause 17 is not adequate for the purpose for which the Government designed it.
May I now reply shortly to the criticisms made by the noble Lord in regard to subsections (2) and (3). Certainly, once you find that, in that situation nearly everybody—and in those words I paraphrase the expression "a substantial majority"—who works there is a member of a particular union, if that industry has been designated that union can make the declaration which is described in the subsection; but my submission to the noble Lord and to the House is that the noble Lord has failed to give adequate protection to the counter-balancing proviso which is included for the purpose of relieving the employer. The employer wishes to take on employees who are not members of that trade union. He is not baulked in so doing; what he has to do is to ask the Commission for a direction that they will be admitted to the union if they apply. If they apply, whether or not they are admitted, he has a perfect right to employ them, and in employing them he does not permit an unfair industrial practice. So that whereas subsection (2) confers upon the union a drastic power, subsection (3) confers upon the employer what I think I may characterise as a drastic counterbalance.
I submit that the balance is fairly held between the two: the union says, "You must only employ our members", the employer says, "I do not want to, and therefore I ask for a direction from the Commission that you must admit them if they ask to be admitted". That, I submit, is fair. The noble Lord then said that it would take time. I have made a rough estimate and I think it would be about a fortnight or three weeks, and I contrast that period with the period of several months which will very likely elapse before the complicated procedure envisaged in Clause 17 can be gone through. That is a very different period of time. It may be I am wrong, but it could not take much longer than that. The Commission knows all about the industry, and I should have thought it could say perfectly well whether, in the case of a particular request by an employer, the direction should be issued.
I hope the noble Lord will be able to say that at any rate he will go into it further, because I cannot help feeling, from his very careful reply, that he did not fully apprehend the basis of the thinking on which this clause is drafted. It is not as bad as that: it is really very carefully balanced, and I hope he will look at it again.
5.56 p.m.
On Question, Whether the said Amendment (No. 41D) shall be agreed to?
Their Lordships divided: Contents, 67; Not-Contents, 87.

CONTENTS

Archibald, L.

Gaitskell, Bs.

Peddie, L.

Ardwick, L.

Gardiner, L.

Phillips, Bs.

Bacon, Bs.

Garner, L.

Platt, L.

Balogh, L.

Garnsworthy, L.

Plummer, Bs.

Beaumont of Whitley, L.

Gore-Booth, L.

Popplewell, I.

Bernstein, L.

Henderson, L.

Rusholme, L.

Beswick, L.

Henley, L.

Sainsbury, L.

Blyton, L.

Hilton of Upton L.

St. Davids, V

Brown, L.

Hoy, L.

Samuel, V.

Buckinghamshire, E.

Hughes, L.

Segal, L.

Burton of Coventry, Bs.

Janner, L.

Shackleton, L.

Byers, L.

Kennet, L.

Shepherd, L.

Caradon, L.

Leatherland, L.

Shinwell, L.

Champion, L.

Lindgren, L.

Slater, L.

Chorley, L.

Llewelyn-Davies of Hastoe, Bs. [Teller.]

Sorensen, L.

Crook, L.

Stamp, L.

Davies of Leek, L.

Lloyd of Hampstcad, L.

Stocks, Bs.

Delacourt-Smith, L.

McLeavy, L.

Stonham, L.

Diamond, L.

Morris of Grasmere, L.

Stow Hill, L.

Douglass of Cleveland, L.

Moyle, L.

Strabolgi, L. [Teller.]

Faringdon, L.

Norwich, V.

Summerskill, Bs.

Taylor of Mansfield, L.

White, Bs.

Wynne-Jones, L.

Wells-Pestell, L.

Wootton of Abinger, Bs.

NOT-CONTENTS

Aberdare, L.

Eccles, V.

Morrison, L.

Ailwyn, L.

Effingham, E.

Mowbray and Stourton, L.

Allerton, L.

Elliot of Harwood, Bs.

Nugent of Guildford, L.

Alport, L.

Emmet of Amberley, Bs.

Oakshott, L.

Amory, V.

Exeter, M.

O'Neill of the Maine, L.

Balfour, E.

Ferrers, E.

Orr-Ewing, L.

Belhaven and Stenton, L.

Goschen, V. [Teller.]

Poltimore, L.

Berkeley, Bs.

Gray, L.

Rankeillour, L.

Bessborough, E.

Grenfell, L.

Rathcavan, L.

Bledisloe, V.

Grimston of Westbury, L.

Reigate, L.

Bridgeman, V.

Hacking, L.

St. Aldwyn, E.

Brooke of Cumnor, L.

Hailes, L.

St. Helens, L.

Brooke of Ystradfellte, Bs.

Hail sham of Saint Marylebone, L. (L. Chancellor.)

St. Just, L.

Brougham and Vaux, L.

Salisbury, M.

Buccleuch and Queensbcrry, D.

Hanworth, V.

Sandford, L.

Caccia, L.

Hatherton, L.

Selkirk, E.

Carrington, L.

Hood, V.

Sinclair of Cleeve, L.

Clwyd, L.

Hylton-Foster, Bs

Skelmersdale, L.

Coleraine, L.

Ilford, L.

Somers, L.

Colgrain, L.

Jellicoe, E. (L. Privy Seal.)

Stonehaven, V.

Conesford, L.

Kemsley, V.

Strange of Knokin, Bs.

Cork and Orrery, E.

Killearn, L.

Tweedsmuir, L.

Craigavon, V.

Kilmany, L.

Tweedsmuir of Belhelvie, Bs.

Crathorne, L.

Kilmarnock, L.

Vivian, L.

Crawshaw, L.

Latymer, L.

Wakefield of Kendal, L.

Daventry, V.

Loudoun, C.

Willingdon, M.

Denham. L. [Teller.]

Macphcrson of Drumochter, L.

Windlesham, L.

Derwent, L.

Merrivale, L.

Wrottcsley, L.

Drumalbyn, L.

Milverton, L.

Dundee, E.

Monck, V.

On Question, Amendment agreed to.

Clause 20 [Right of employee not to be unfairly dismissed]:
6.3 p.m.
THE LORD PRIVY SEAL (EARL JELLICOE)THE LORD PRIVY SEAL (EARL JELLICOE) moved Amendment No. 42:
Page 17, line 21, after ("specifying") insert ("by description or otherwise").
The noble Earl said: My Lords, I hope it will be helpful to your Lordships if we take along with No. 42 Amendments Nos. 43 and 44. This also has the advantage that ever since my prep school days I have always considered 44 one of my lucky numbers; that is why I am proposing they should be taken together. Your Lordships will no doubt recall that we discussed the points covered by these Amendments at some length at Committee stage, and I agreed, under the promptings of an alliance which I then thought was rather unholy, both from behind me and in front of me, but which I now regard as purely holy, to look again at the wording of subsection (2)(b) and (c) of Clause 20, to see whether we could clarify the points in that clause with which a number of noble Lords on both sides were finding difficulty. These
714
Amendments I am now moving flow from that undertaking, and I hope your Lordships will find them satisfactory.
May I just run over the two points which I think were worrying noble Lords, The first point was that the requirement under subsection (2)(b) to specify a person appeared to require employers to identify a person for this purpose by name, and it was thought this could create a great deal of difficulty, particularly for firms which experience frequent changes in personnel. I explained that this was not the Government's intention, and also that we did not think that the clause as drafted would have this effect. What we have in mind here is merely that an employer should identify a person in such a way that the employee clearly knows to whom he should apply when he has a grievance concerning his job, and that person could well be as well identified by his title—section foreman or departmental manager or what have you—as by his name.
The first of these Amendments, which now introduces the phraseology "specifying by description or otherwise" a person to whom the employee can apply is designed to meet, and I hope it does indeed meet, the objection which was

715
raised by noble Lords on both sides. It would not, of course, mean that some worker who felt he had a grievance could not go first to his shop steward and ask his advice; obviously that is possible, and is in no way precluded by the phraseology we are now importing.
The second point which worried some noble Lords was that subsection (2)(b) and (c) appeared to require employers to set up formal grievance procedures where none at present exist. Again I would make clear this is not the Government's intention. The object of this provision in this part of the Bill is to ensure that if a formal grievance procedure is available to the employee he should be told about it, and the stages it includes. We have no intention to oblige employers to set up grievance procedures, other than the rather limited arrangement of identifying the person to whom the employee can go with his grievance, where such grievance procedures do not exist. We have no intention of manufacturing "bumph", which was the word used in the debate on this part, merely from some masochistic pleasure in manufacturing paper, although I know the noble Lord, Lord Brown, has a great belief—and I would not dispute this—in this efficacy of written understandings.
We certainly hope, however—and I should like to make this equally clear—that these provisions will help to encourage thought on this whole subject and lead to the development of better and more procedures—better, clearer and cleaner procedures was, I think, an acceptable formula which I used at Committee stage—and of course the code of practice urges employers in that direction. I hope that your Lordships on both sides—I was pressed from both front and rear at Committee stage on this part of the clause—will agree that these Amendments discharge the undertaking I gave to the Committee to look again at this part of the Bill and try to introduce more acceptable phraseology. I beg to move.
LORD BROWN: My Lords, this is a welcome show of flexibility in the Government's response to debate at the Committee stage. Not being technically expert, but nevertheless looking at these Amendments, they seem to me to meet
716
adequately the points made during the debate at Committee stage. I merely add one thing and that is this. I had an opportunity of speaking on the code during our debate on it and I would merely say one thing. These Amendments enable a firm to point first to a man's manager as the man to whom he should go, and then subsequently to his manager once removed, if I may coin the phrase. The clarity of the heirarchy of managers is very important, and should be clarified in many concerns. I hope that supplementing this sound Amendment, the Government will turn their thoughts to the requirement, under the code, of those companies to clear up the hierarchy in the managers, so that employees know who is their own manager and who are the managers further up the hierarchy. I think that is an important point, and this Amendment clearly makes it possible to begin the process of cleaning up what is frequently a very confused situation in industry. The more rapidly it is cleared up, the better.
LORD SINCLAIR OF CLEEVE: My Lords, may I follow the noble Lord, Lord Brown, in saying to my noble friend the Leader of the House that those of us who were associated together in proposing the original Amendment feel that both in substance, and in essence, the Government's Amendments now completely meet the point which we endeavoured to secure in the original Amendment. I should like to express our gratitude for the attention that has been given to it.
VISCOUNT AMORY: My Lords, I should like to associate myself with what my noble friend Lord Sinclair of Cleeve has just said.
LORD SLATER: My Lords, in regard to the recommendation in Amendment No. 43 may I say to the noble Earl that as one who has had something to do with conciliation, in my opinion it will be readily accepted by people who are employees, when they know that they have an opening whereby they can make their representations to the one in charge of them and also further up the ladder, as indicated by my noble friend Lord Brown. I think that is something for which one can be nothing but grateful.
LORD DELACOURT-SMITH: My Lords, as has already been apparent,

717
noble Lords in all parts of the House appreciate the action of the Government, and of the noble Earl, in responding to the debate which took place on this matter at Committee stage. I associate myself fully with what other noble Lords have said. So far as I can judge, the Amendments now proposed meet the points which were raised in the discussion.
Perhaps I may also make the observation that in the course of the Committee proceedings relating to these points I made a suggestion, on which, let me say at once, the noble Earl gave no commitment at all, that consideration might be given to some measure rather similar to that which has prevailed for many years in the Civil Service in respect of a reference to trade union membership being communicated particularly to all the new entrants. This is something which might be taken up in the code of practice, which is of course so intimately associated with the terms of this particular part of this clause. That is all I wish to say on these Amendments.
EARL JELLICOE: My Lords, I do not wish to prolong the discussion. I should merely like the permission of your Lordships' House to thank noble Lords for the reception from both sides of the House to these Amendments. I was under pressure from both sides at Committee stage, and I am glad that these Amendments seem to be acceptable both to my noble friends and to noble Lords opposite. First of all, I should like to thank my noble friends Lord Sinclair of Cleeve and Lord Amory (who, I think, had an Amendment down at Committee stage on this point), for their research. I think neither noble Lord—who were described by their co-sponsor as the "stroke and cox" of this particular boat—was in fact present. At Committee stage the noble "Casablanca"—the noble Earl, Lord Dudley—rowed very well on their behalf. I should like to thank them for their reception of these Amendments, and likewise the noble Lords, Lord Delacourt-Smith, Lord Brown and Lord Slater. The point made by the noble Lord, Lord Brown—backed up by the noble Lord, Lord Slater—and also the suggestion of the noble Lord, Lord Delacourt-Smith, I will certainly undertake to draw to my right honourable friend's attention, and ask him whether, in his consultations and cogitations on the Code of Industrial
718
Practice, he will see whether they can properly be brought in within that framework. I gladly undertake to do this.
EARL JELLICOE: My Lords, I beg to move Amendment No. 43.
Amendment moved—
Page 17, line 21, leave out from ("whom") to ("and") in line 24 and insert ("the employee can apply for the purpose of seeking redress of any grievance relating to his employment")—(Earl Jellicoe,)
EARL JELLICOE: My Lords, I beg to move formally, but with particular pleasure owing to its numerical significance for me, Amendment No. 44.
Amendment moved—
Page 17, line 27, leave out ("subsequent steps in that procedure") and insert ("steps consequent upon any such application")—(Earl Jellieoe.)
6.15 p.m.
LORD HOY LORD HOY moved Amendment No. 45:
Page 135, line 26, leave out paragraph 7.
The noble Lord said: My Lords, I beg to move Amendment No. 45. Perhaps it would be for the convenience of your Lordships' House if we dealt with Amendments Nos. 46 and 47 at the same time. I assure the noble Earl that there is no numerical significance in doing this. I do so in the hope that if he is to reply he will only have to say "Yes" once instead of three times.
The purpose of these Amendments is to strike out the provisions introduced with what we thought was a fairly inadequate explanation during the Committee stage of the Bill. In our view, they constitute an unfair and anomalous treatment of a worker who falls sick during the closing period of his employment with an employer who has already served him with a redundancy notice. The new proposals came in Amendment No. 198A during the Committee stage, and it was taken in the early hours of the morning—I think about one o'clock. The significance of it was certainly not realised by myself. Having examined it, we thought it was necessary to put these Amendments down. May I tell your Lordships why. At present, an employee of a firm

719
which operates a sick pay scheme under which his State sickness benefit is made up to his normal wages by his firm receives, when under notice of redundancy, both the State sickness benefit and the guaranteed minimum pay, which is required by law to be paid by the employer without any reduction, during that period. Therefore, if we take as an example a worker who earns normally £25 a week and receives £15 a week sickness benefit, he will, if employed by a firm which operates such a sickness pay scheme receive £25 a week when he is away ill, but £40 a week when he is away ill and under redundancy notice. That is the law as it at present stands.
This overlap is perfectly understandable, because the worker is suffering two disabilities. First of all, he is suffering from sickness for which he is receiving his benefit; and, secondly, he is suffering from having had a redundancy notice served on him, so that he qualifies for the second payment. The Government regarded the position as anomalous and they therefore introduced—and I must say that we rather disliked it when we realised what was being done—the provisions in paragraphs 7, 8 and 9 of Schedule 2. As a result, when a worker is away sick during a period of notice he will receive the same amount as if he were not sick; namely, £25 per week in the example chosen. The State will pay the same sickness benefit, but the employer will now be allowed to deduct the sick pay from the guaranteed minimum pay, with the result that the worker will receive £15 less, and the employer will save £15. I want to make it perfectly clear that it is not the Government who will save money as a result of this process, but the employer. So all that will happen is that, while the Government will not save money, the employer will, and, as a consequence, the worker will be £15 poorer. In short, this is a dodge to save the employer money, and it takes no account of the injustice done to the worker who gets no extra benefit to compensate for his being sick during the closing weeks of his employment, when he is unable to look around for a new job and may have many added expenses, such as prescriptions and so on.
Your Lordships may like to contrast the position of the man in a sick pay
720
scheme with the position of the worker whose employer does not operate one. The brother of the man in the first case, engaged at the same pay for the same work and with the same sickness benefit but working at a neighbouring firm, will continue to receive £40—that is, for sickness benefit and guaranteed minimum pay—as before, as these provisions do not affect him. Surely an anomaly will be created which your Lordships' House will not want to persist: that one brother will get a total of £25 a week and the other brother will get £40 a week in identical circumstances, if the new provisions are enacted. It is clear that the Government's proposals are both unjust and anomalous and they ought to be withdrawn by leaving out paragraphs 7, 8 and 9. It is also perfectly clear that when the minimum redundancy pay arrangements were originally enacted it was intended that every worker who suffered the double misfortune should get the double benefit; and if one looks at the figures one can see that for oneself.
The anomalous position was certainly not explained when the noble Lord, Lord Drumalbyn, moved his Amendments. It certainly was not explained to your Lordships that the result of passing the Amendments was that this anomaly would he created; in fact, my noble friend Lord Diamond has had some correspondence on this issue with the noble Lord, Lord Drumalbyn. When the noble Lord was challenged as to the number of people who might be involved, he said that it was very difficult to make an assessment. But if one looks at Hansard it will be seen that the noble Lord said that the vast majority of employers who provide full wages during sick absences in normal employment situations take into account the amount of any sickness or industrial injury benefit which the employee receives. So it can hardly be argued that the noble Lord was not certain of the figures, when at the same time he was arguing that the vast majority of employers take benefits into account.
There is a third argument which is always put: that there are many workers who go sick while they are getting redundancy payments. To put it in common parlance, they are accused of

721
"swinging the lead". But noble Lords will surely agree that before a worker can qualify for sickness benefit, he must have a certificate from his doctor declaring him unfit for work. So to use an argument of that kind is to attack not politicians but doctors who are carrying out their jobs by certifying, or otherwise, the health of their patients. I do not think that there was anyone in your Lordships' House who believed when we accepted the Amendments that the Government were creating an anomaly of this kind and penalising the man who is in a sick scheme but not the man who is not in a scheme, by providing that the man who is not in a scheme is going to draw much greater benefits than the man who is in one. Having realised what we have done, I hope that your Lordships will want to support these Amendments to rectify the position. My Lords, I beg to move.
6.27 p.m.
EARL JELLICOE: My Lords, as the noble Lord, Lord Hoy, said, the provisions which he wants to delete were introduced at Committee stage, but although the hour was fairly early then, I think the noble Lord, Lord Hoy—unwittingly, no doubt—did my noble friend Lord Drumalbyn less than justice in implying that the case was not very clearly put at the time. I remember my noble friend's speech on this Part of the Bill, and I have refreshed my mind on it since, and I think the Government's intention was very plainly put then. I am the first to agree that the hour was rather early at the time, and it became earlier, or later, because that was about the middle of our May marathon. But in view of what the noble Lord, Lord Hoy, has said in moving these Amendments, I think I should recapitulate the position as seen by the Government.
As I think the noble Lord, Lord Hoy, suggested, under Schedule 2 to the Contracts of Employment Act the employee's pay is guaranteed during the appropriate minimum period of notice laid down in the Act. The employer is able to count towards such guaranteed payment any sick pay or holiday pay which he makes to the employee in relation to that period, but there is no provision which enables him to offset sickness or industrial injury benefit received
722
by the employee in respect of that period. This has meant that employees who were away sick during the notice period could receive both sickness benefit and a guaranteed payment under Schedule 2 to the Act which, as a result of earnings-related benefit, could be more in total in many cases than their normal earnings at work. I know that this was mentioned at Committee stage, but perhaps noble Lords now present were not in the House at that rather early hour. So I should make it clear that this seemingly relatively small matter—though it is not an unimportant one—has created serious difficulties for certain industries.
I know, for instance, that it has created very considerable difficulty in the coal-mining industry. When redundancies there have become necessary, there have in fact—I am not wishing to put this in a particularly pejorative sense, but it is a plain truth—been dramatic increases in sick absences during the weeks that the employees have been under notice. In some instances—and this applies to the industry which I have mentioned—the rate of absences on account of sickness has risen to over 50 per cent. I am not saying where the abuse lies, but there certainly has been abuse; and this has the serious practical effect that high rates of sick absence like this certainly seriously impede redeployment of the labour force and the run-down arrangements—the salvage of equipment and so on. Certain industries—for example, the coalmining industry—have felt this very keenly, and have made very strong representations indeed. That is why we think it right that some adjustments should be made to Schedule 2 to the Act, to deal, at least in part, with this situation. Most employers who have a sick pay scheme which operates in normal employment circumstances offset against the sick pay any sickness or industrial injury benefit which the employee receives in respect of the period, and we think it right and reasonable that these normal arrangements for sick pay should also apply during the period an employee is under notice—and this is what this paragraph of the Schedule provides.
My Lords, the guarantees provided by the provisions of Schedule 2 to the Contracts of Employment Act are, of course, left completely intact. They are in no

723
wise whittled down or tampered with; but an anomaly is removed. This means that the employee will be no worse off during notice than at any other time when he has been away from work sick, but it also means that he will not be able to receive, when sick during notice, more than he would normally earn. I must again say—and I think it is wrong to be mealy-mouthed about these things, whichever way we come down on these points—that the earnings as a result of what I think is an anomaly have been very high indeed. They have in some cases amounted to 185 per cent. of normal working pay. We feel that this provision should help to reduce the high rate of sick absences among employees under notice, and the very real problem this engenders. For those reasons, we consider paragraph 7, unamended, to be an important one, and to make a very necessary improvement to Schedule 2 of the Contracts of Employment Act.
My Lords, may I just summarise? I apologise for speaking at some length on this matter, but the noble Lord, Lord Hoy, developed an important argument on a not unimportant point, and I think that perhaps it merits more consideration than, for one reason or another, we were able to give it at a very early hour of the morning on Committee stage. All we are doing or seeking to do, here in the Bill is to ensure that those workers in employment whose employers operate a voluntary sick pay scheme and who are away sick or industrially injured during the period they are under notice are no better treated than those who are in employment but are also sick or industrially injured. I should like to emphasise that, under our arrangements, an employee would be no worse off if he were sick during his notice than if he was in normal employment. It is quite true, as the noble Lord, Lord Hoy, has said, that we have been unable to quantify (and I have looked into this matter as a result of the Amendment) the size of this particular problem. The reason for that, as I think was made clear in the letter which my noble friend Lord Drumalbyn sent to the noble Lord, Lord Diamond, is that insufficient information is available as to how many employers operate sick pay schemes. All I can say is that a considerable number of em-
724
ployers operate such schemes—and I may add, in parenthesis, that I think there is a great deal to be said for more operating such schemes—but I am unable to quantify it. All I would say is that I believe that if we were to incorporate the Amendment we should be perpetuating a situation which is wrong in theory and in practice has extremely undesirable consequences. That deals with the plain issue.
The issue is complicated by the other point to which the noble Lord, Lord Hoy, referred. I should like to make it clear that if the Bill stands unamended, if your Lordships do not accept these Amendments or they are withdrawn, the Government recognise that the provision deals only in part with the problem of abuse of the present guarantee payment arrangements under Schedule 2, and I should like to explain what is the difficulty here. In order for an employer to be able to take into account in calculating a payment he is making to an employee the amount of sickness benefit received, he needs to have written evidence of the employee's sickness benefit entitlement. That information, however, is regarded, and I think rightly regarded, as private as between the employee and the Department of Health and Social Security; and we feel it would be wrong to compel an employee, by law, to disclose his sickness benefit position to his employer or his ex-employer. There is a problem of confidentiality here.
Where, however, voluntary arrangements which the employer and employee have both agreed to operate already provide for the employee to disclose this information, so that sickness benefit re-received may be taken into account in calculating the employee's entitlement under an occupational sick pay benefit scheme, then we think this arrangement should be allowed to apply to a guarantee payment made under Schedule 2 to the Act where an employee is away sick while under notice—and that, of course, is what paragraph 7 provides. That is why we feel there is this great difficulty of making the provision which we think right in the case of workers in employment where there is a voluntary sick pay scheme operate in the case where there is not one working, though we should like the provision to do so. The reason we

725
feel unable to do so is because it breaches a very important principle of confidentiality. That is why we feel unable to make that tightening up where there is no sick pay scheme in operation. But I should like to point out that employees receive only sickness benefit when they are away sick during normal employment circumstances, and there is probably, therefore, an element of rough justice in the provision.
My Lords, our evidence is that the difficulties which arise from an abuse of the present provisions are most acute among the larger undertakings. More of the large firms can be expected to have an occupational sick pay scheme of some kind, and the provisions in paragraph 7 of Schedule 2 will therefore deal with the main problem area, although they admittedly leave an anomaly. I would say only this in conclusion and I apologise for the length at which I have spoken. The fact that there is one anomaly that we are leaving in the Bill unamended is not necessarily, I think, a reason for leaving two in an important area here. If we must have one anomaly left, there is also the question of the rough justice. There is also another point: if we leave the Bill unamended, this will work to the advantage of the employers who have introduced, with the agreement of their employees, voluntary sick pay schemes. I think this will be an encouragement to those employers who have not introduced such schemes—which we consider, on the whole, desirable—to do so. This is a consideration that I hope noble Lords opposite will weigh in making up their minds on this issue.
In conclusion, I should say that I have convinced myself beyond doubt on the basic issue of the majority of cases where employees are in employment where there is a voluntary sick pay arrangement operating and that it will be wise to leave the Bill unamended. I hope that I have given more background information than was perhaps available earlier.
6.41 p.m.
LORD SLATER: My Lords, I do not think there is any need for the noble Earl to apologise for the length of time taken up in reply to my noble friend's speech. Noble Lords must remember that the Government and the local authorities, are the largest employers in the country.
726
I was very sorry to hear the noble Earl in reference to the mining industry, speak of a 50 per cent. increase in absences while under notice. These people follow the most arduous occupation in the country. I ought to know something about this for I was in that industry for over 30 years. I came straight from the coal face to become an M.P. I am sorry that the noble Earl should have made that reference. The fact is that these people could not in any circumstances absent themselves from the colliery in which they were working unless they had a medical certificate from their medical officer. When the noble Earl took that line in his argument I could not help reflecting on what once used to happen in the mining industry. If a man happened to feel ill in the course of his work and wanted to leave his shift, the management required that man immediately to present himself to the local practitioner, to get a medical certificate from him and to lodge that certificate in the colliery office before he went home. I was rather upset to hear the noble Earl make that statement in respect of this class of people and in regard to that 50 per cent. in his speech against the Amendment so ably moved by my noble friend.
LORD HOY: My Lords, we are grateful to the noble Earl for the explanation he gave in defence of the Amendments moved on the Committee stage. His arguments were certainly much broader than those in the speech delivered when we accepted them. But what the noble Earl has said this evening is exactly what was said during the Committee stage: that whether we like it or not, we are left with the anomaly that a man who pays into a sick scheme is going to be much worse off, benefit-wise, than a man who does not pay in at all. I should have thought that that anomaly was so great that if one anomaly were to be removed it would be that one. I find it difficult to understand what this Amendment has to do with this Bill; for it is a matter of insurance benefits. It seems extraordinary that the Government should take steps to penalise certain workers, to take insurance benefits away from them, in the course of promoting a Bill for good industrial relations. It is completely contradictory. So I say to the noble Earl that while I am grateful to him for the explanation he has given, I could not accept

727
it because it is taking steps under the Bill to penalise a section of workers. I can understand the feeling of my noble friend, Lord Slater. It is one of the great difficulties in this life that whenever one chooses some section of the community as an example one gets oneself into trouble. Only too frequently is the miner used as the example. This is surprising when one remembers the arduous duties and tasks that these men have to undergo. Considering that what the Government are doing is to penalise the workers who pay into an insurance scheme while leaving the others free, I must advise my noble friends to take this matter to the Division Lobby.
EARL JELLICOE: My Lords, I should like to dissuade the noble Lord from taking this Amendment to a Division because this is not a Party matter and not a matter upon which the House should divide at Report stage. I have not sought your Lordships' permission to speak again; but I hope that I have it. I recognise that paragraph 7 bites on those employees whose employers have made a voluntary sick pay scheme and that it does not bite on those employees where there is no such voluntary sick pay scheme. I recognise that this is an anomaly. I have explained why the anomaly exists and that to remove it would be to breach confidentiality in a very important area. Also I pointed out that these employees do not receive, and quite rightly, the same advantages as do those employees who are members of a voluntary sick pay scheme; so although there is an anomaly remaining, there is a certain rough justice. I have also pointed out that if we pass the Schedule unamended, this will afford an encouragement
to employers and employees to try to make voluntary sick pay agreements, which we consider desirable, where they do not now exist. Those are not unimportant considerations to set against the arguments of equity and unfairness which the noble Lord, Lord Hoy, has advanced. This is a difficult area. I feel that, right or wrong, there is considerable, or at least some, abuse going on at present. What is more, there are very serious practical disadvantages which have been pointed out by one employer—not a mean one—in a very important industry.
My Lords, I should merely like to say to the noble Lord, Lord Slater, that I hope I recognise the force of what he has said. I hope that the noble Lord will not think I was casting aspersions on the employees in any one particular industry in this country. We recognise that a particular industry has a great problem and that the employees in it probably work under more arduous and difficult conditions than most people in our national life. I was merely stating facts which I think are incontrovertible; and because in certain instances they are painful I did not think I should be mealy-mouthed about it. But I was not wishing to cast aspersions on the industry or those who work in it. I hope that the noble Lord, Lord Hoy, will not divide the House on this Amendment merely because he has coupled with it two succeeding ones which I think would cut out other things we need for other reasons in the Bill. But I can only put that suggestion to the noble Lord.
6.51 p.m.
On Question, Whether the said Amendment (No. 45) shall be agreed to?
Their Lordships divided: Contents, 47; Not-Contents, 83.

CONTENTS

Archibald, L.

Faringdon, L.

Phillips, Bs. [Teller.]

Bacon, Bs.

Gaitskell, Bs.

Popplewell, L.

Beaumont of Whitley, L.

Gardiner, L.

Rusholme, L.

Bernstein, L.

Henderson, L.

Sainsbury, L.

Beswick, L.

Henley, L.

St. Davids, V.

Blyton, L.

Hilton of Upton, L.

Segal, L.

Brockway, L.

Hoy, L.

Slater, L.

Brown, L.

Hughes, L.

Stocks, Bs.

Buckinghamshire, E.

Janner, L.

Stonham, L.

Burntwood, L.

Kennet, L.

Stow Hill, L.

Caradon, L.

Leatherland, L.

Strabolgi, L.

Champion, L.

Lindgren, L.

Summerskill, Bs.

Crook, L.

Llewelyn-Davies of Hastoe, Bs. [Teller.]

Taylor of Mansfield, L.

Davies of Leek, L.

Wells-Pcstell, L.

Delacourt-Smith, L.

Lloyd of Hampstead, L.

Wootton of Abinger, Bs.

Evans of Hungershall, L.

Norwich, V.

Wynne-Jones, L.

NOT-CONTENTS

Aberdare, L.

Drumalbyn, L.

Milverton, L.

Ailwyn, L.

Dundee, E.

Monck, V.

Allerton, L.

Ebbisham, L.

Monsell, V.

Amory, V.

Effingham, E.

Mountevans, L.

Auckland, L.

Elliot of Harwood, Bs.

Mowbray and Stourton, L.

Balfour, E.

Exeter, M.

Oakshott, L.

Bellhaven and Stenton, L.

Ferrers, E.

O'Neill of the Maine, L.

Berkeley, Bs.

Goschen, V. [Teller.]

Orr-Ewing, L.

Bessborough, E.

Gowrie, E. [Teller.]

Poltimore, L.

Birdwood, L.

Grenfell, L.

Rankeillour, L.

Bledisloe, V.

Grimston of Westbury, L.

Rathcavan, L.

Bradford, E.

Hacking, L.

Reigate, L.

Bridgeman, V.

Hailes, L.

St. Aldwyn, E.

Brooke of Cumnor, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

St. Helens, L.

Brooke of Ystradfellte, Bs.

St. Just, L.

Brougham and Vaux, L.

Hanworfh, V.

St. Oswald, L.

Buccleuch and Queensberry, D.

Harvey of Tasburgh, L.

Sandford, L.

Burgh, L.

Hatherton, L.

Selkirk, E.

Carrington, L.

Hylton-Foster, Bs.

Sinclair of Cleeve, L.

Clwyd, L.

Jellicoe E. (L. Privy Seal.)

Skelmersdale, L.

Coleraine, L.

Kemsley, V.

Somers, L.

Conesford, L.

Kilmany, L.

Stamp, L.

Cork and Orrery, E.

Latymer, L.

Stonehaven, V.

Craigavon, V.

Lauderdale, E.

Strange of Knokin, Bs.

Crathorne, L.

Lindsey and Abingdon, E.

Strathclyde, L.

Crawshaw, L.

Loudoun, C.

Sudeley, L.

Davenlry, V.

Macleod of Borve, Bs.

Vivian, L.

Denham, L.

Macpherson of Drumochter, L.

Windlesham, L.

On Question, Amendment agreed to.

6.59 p.m.
LORD DRUMALBYN: My Lords, I beg to move that further proceedings on Report on the Industrial Relations Bill be adjourned until after the Second Reading of the Pool Competitions Bill.
Moved, That further proceedings on Report on the Industrial Relations Bill be adjourned until after the Second Reading of the Pool Competitions Bill.—(Lord Drtinlalbytt.)
EARL ST. ALDWYN: My Lords, before the next Business is called I think it would be convenient to the House for me to say that discussion on the next Business should not take very long and that the House will then adjourn during pleasure until a quarter to eight.

POOL COMPETITIONS BILL
7.0 p.m.
LORD WINDLESHAM: I beg to move that this Bill be now read a second time. Although this Bill looks somewhat complicated it has a simple purpose which I should explain at the outset. This is to safeguard the position of certain charities and sporting activities which derive a substantial part of their income from
730
what are often described as charity pools. These take the form of competitions, usually based on the outcome of football matches and in many ways similar to fooball pools, which have as part of their appeal to the public the fact that considerable sums are paid over to charities out of the proceeds. The Spastics Society, for example, has benefited to the tune of between £1½ and £2 million a year from competitions of this sort. This is probably the largest single charitable organisation affected, but there seems no doubt that several million pounds a year are going to deserving charities and sporting interests.
As your Lordships are aware, for some years a number of competitions have been operating from which charities and sport derive considerable benefit. Until recently these competitions purported to operate as lawful pool betting, but the decision of your Lordships' House in the case of Singette & Others v. Martin established that they were in fact unlawful lotteries. The purpose of this Bill is to restore to a limited extent and for a limited period the position which was thought to obtain before that decision. It does no more than make the necessary changes to enable those competitions to be treated again for a limited period as pool betting.
The schemes which the House of Lords found were unlawful lotteries had many

731
similarities with legitimate pool betting, but there were also some significant differences. The principal difference was that the overwhelming majority of those taking part made no forecast. These schemes had other features which distinguished them from ordinary pool betting. The most important, of course, is that they operated to provide substantial financial contributions to charity and sport. Another distinguishing feature is the much greater reliance placed by them on the collection of weekly entry moneys by local collectors organised under a system of regional supervisors. One other feature to which I should like to draw attention is the combination of these schemes with other forms of benefit—notably Premium Bonds or gifts—which do not purport to be pool betting at all and which accordingly do not come within any part of the existing system of control. Some of these distributions of benefits proved to be lotteries, and unlawful on that account. In other cases distributions are made in such a way as to avoid this illegality. In addition, some competitions are associated with modest insurance schemes which act as an inducement to the entrant to maintain his regular weekly payments.
These collateral schemes are of considerable importance in considering the provision that has to be made in this Bill. It has been the practice for some promoters to run the whole scheme by a series of separate companies, one company running the pool competition and other companies being responsible for the related benefits. In some cases the contribution to charity or sport has in fact been made out of the turnover of the company concerned with the related benefits. It is not, therefore, sufficient to deal with the pool competition itself in isolation, but it is necessary to take into account the whole operation.
It would seem that the financial pattern of these schemes is subject to a good deal of variation. In one scheme, for example, 25 per cent. of the entry money goes into the pool competition and 75 per cent. goes into the related schemes. Other competitions have been differently organised, with a much greater proportion of the entry money going into the competition proper. The amount of benefit going to charity and sport has
732
also varied from scheme to scheme. In some cases it has averaged about 10 per cent. of the total turnover, and in other cases it has reached a higher figure. The total turnover involved has been very substantial. The annual turnover of what may be the largest of these schemes has on occasion reached a figure as high as £15 million.
It is the size of the benefit to charity and sport which has led the Government to decide that it would not be right to allow this source of income to be suddenly brought to an end. It would clearly be impracticable for the charities affected to find comparable sources of income to replace what would be lost without strenuous efforts over a long period. At the same time it would not have been practical to introduce comprehensive permanent legislation to regularise the situation in time to save the income on which certain charities and sport had come very largely to depend. The Government, therefore, decided that the right course would be to introduce temporary provisions in the nature of indemnifying legislation, to enable those charitable and sporting interests concerned who had come to depend on this form of income to continue to enjoy it while the whole of the law in this field is reviewed.
This review has now been put in hand. The laws concerning lotteries, pool betting and prize competitions are far from straightforward, and it seems sensible to consider the implications to the public as widely as possible and not in a piecemeal way. There are, of course, many other interests involved as well as charities who have benefited until now from this sort of income, and it should not be assumed that the law will be permanently altered to enable arrangements of this kind to continue in the future. What the Bill does, therefore, is to provide a breathing space, a period of five years, in which charities which have depended on this form of competition for such a large part of their income can seek alternative sources. I should add that the Bill only applies to those schemes which were already in operation at the time of the decision in Singette and others v. Martin last November. There will not be any opportunity for new entrants to come into the field.
The Bill is concerned only with competitions for prizes depending on the

733
sporting events. What is meant by the words "competition for prizes" is defined in Clause 7(2). This establishes that the allocation of prizes must depend on the outcome of a sporting event; that there is a right to forecast the outcome, even though it is not exercised; and that prizes can be won whether or not a forecast is made. The Bill legalises the competitions in question by providing a procedure for identifying those which are intended to be covered by it and licensing them to continue to operate in the way they have done, subject to new controls.
The cornerstone of the new procedure is the Gaming Board, which has very willingly taken on this new task. It has been necessary to introduce a central authority of this kind because of the wide variations which exist from scheme to scheme, and the difficulty of knowing, without full information about the various schemes, what general or particular provision ought to be made. Accordingly the Gaming Board is given power to issue certificates identifying the schemes which will benefit under the Bill, and to license those schemes to continue subject to controls. The procedure for issuing certificates is contained in Clause 1. The essential criteria are that the promoter must have held during the year preceding the House of Lords decision at least nine competitions, which must have benefited some charities or sporting organisation or other organisation not established for private gain, and that the competitions must have been of a certain kind, closely analogous to pool betting. Once an applicant has satisfied the Board a certificate must be issued.
The licensing provisions are contained in Clauses 2 and 3 of the Bill. The effect of the grant of a licence will be to treat these competitions as lawful pool betting. This will remove them from the lottery law and ensure that they are subject to the ordinary provisions of the pool betting law. In addition to issuing the licence the Board is given power to impose conditions. The primary object that the Board must satisfy in exercising its powers is set out in Clause 2(2), namely, to ensure that financial benefit continues to accrue to the relevant society. In addition the Board is required to impose conditions which will ensure
734
that full information about the whole operation of the scheme is made available to those who take part.
Licences under the Bill will run for a year at a time and the Board is given wide power to extend or revoke a licence. This power to extend or revoke will enable the Board to keep these licences continually under review. The financing of the new procedure will be covered by fees payable to the Board by applicants for certificates and licences. The amount of these fees will be prescribed by the Secretary of State by Order under the power conferred on him by Clause 5.
The Gaming Board have already invited applications for certificates from pool promoters whose competitions fulfil the criteria in Clause 1 of the Bill, and a number of applications have already been received. As soon as the Bill has received Royal Assent the Board will act as quickly as possible in issuing licences, to ensure that existing schemes are brought within the law so that the contributions made to the benefiting organisations can continue. My right honourable friend the Home Secretary is very grateful to the Chairman and members of the Board for taking on this new task.
This is a small Bill, but an important one to the interests concerned. It is an agreed measure between the Parties, and for the reasons that I have given I hope it will commend itself to your Lordships. I beg to move.
Moved, That the Bill be now read 2a.—(Lord Windlesham.)
7.12 p.m.
Loon GARDINER: My Lords, the House will be grateful to the noble Lord, Lord Windlesham, for the clear way in which he has explained this Bill to us. At first sight, is is a rather complicated Bill, and it seems an odd piece of legislation to put before Parliament, because it enables people to go on doing something which your Lordships' House has found to be illegal. But when one looks into it, one finds that it is a good example of that common sense which we hope in the end the Government will show in relation to Equity and the Industrial Relations Bill.
It is the fact that a limited number of charities have been raising large sums by these pool competitions which they

735
believed to be legal. Not only do the Spastics Society stand to lose something between £1½ million and £2 million a year, but the National Fund for Research into Crippling Diseases and the Imperial Cancer Research Fund together are in danger of losing more than £200,000 a year. One must realise therefore that if this fund raising had suddenly stopped, as it would if there were no legislation, the good work clone by the Spastic Society for spastics, for example, would at once have been drastically curtailed. Therefore, it is only common sense in the circumstances that the Government of the day should say: "We have always known that the law about pools competitions and lotteries has been a troublesome one, and we will appoint a Working Party to go into it; meanwhile, we will have this short Bill to enable these socieites to go on doing what they have done so far."
As the noble Lord has said, this Bill received unanimous support from all Parties in the other place, and the reason, I apprehend, why there are not the usual cheering crowds behind me is not solely due to another attraction which is now taking place in your Lordships' House, but to the fact that nobody would wish to say anything against this admirable Bill.
7.14 p.m.
LORD EBBISHAM: My Lords, I should like to give a brief but warm welcome to this Bill on behalf of first-class cricket. 'Those of your Lordships who are interested in first-class cricket will know that the financial position of most county clubs is at a very low ebb indeed. Some clubs, one of which is Surrey, of which I happen to be honorary treasurer, are wondering whether they can survive at all. For some years now most county clubs have been relying on pools competitions, in common with some charities and football, for additional income. The most noticeably successful in cricket has been the Warwickshire County Cricket Supporters' Association, which has from its funds so collected helped many aspects of cricket as well as the Warwickshire County Club. So when the decisison in Singette and Ors v. Martin came to be known it was a great blow to first-class cricket in general.
I am well aware that the main purpose of this Bill is to help those charities, both
736
great and small, which have been counting on this harmless form of gambling to produce a useful source of income, and to compare the worth and value of the work which these organisations do with cricket and football would be absurd. Yet I venture to think that cricket is part of our national heritage—a heritage which we have imparted to many parts of the Commonwealth, and which forms a bond between us wholly for good. Indeed, cricket has spread beyond the bounds of the Commonwealth, and can be found in such unlikely places as California, Corfu and the Netherlands. As such, it is surely worth preserving.
We are therefore extremely grateful to the Government for acting so promptly. This Bill, as has been said, is admittedly only a holding operation, but we must hope that the review later on will lead to the permanent restitution of the right to hold these pools competitions, or to some similar right. I thank the Government warmly for introducing the Bill, and I hope that your Lordships will give it a second reading.
7.17 p.m.
LORD WINDLESHAM: My Lords, I think all that remains for me to do is to thank both noble Lords who have spoken in this brief debate. The Bill represents, as the noble and learned Lord, Lord Gardiner said, a common sense approach. There was no other course of action that could be taken. We were aware of the significance of these competitions to first-class cricket and I believe it to be the fact that the Warwickshire County Cricket Supporters' Association has been paying a sum of approximately £750,000 to first-class county cricket and also to certain football activities. The cricket grounds of Gloucestershire and Leicestershire were both purchased recently out of grants made from that source. However, the whole question is now under review and we should not assume that the shape the law finally takes will necessarily correspond to this temporary measure. I thank noble Lords once again for what they have said.
On Question, Bill read 2a, and committed to a Committee of the whole House.
[The Sitting was suspended at 7.18 p.m. and resumed at 7.45 p.m.]

INDUSTRIAL RELATIONS BILL
7.45 p.m.
LORD DRUMALBYN: My Lords, I beg to move that the Bill be now further considered on Report.
Moved, That the Bill be further considered on Report.—(Lord Drumalbyn.)
Clause 23 [Meaning of "dismissal"]:
LORD STOW HILL LORD STOW HILL moved Amendment No. 47A:
Page 18, line 18, at end insert—
("or
(c) his employer has by a consistent course of conduct in relation to that employee intentionally brought about circumstances in which it is reasonable for that employee to give notice terminating his employment and he has given such notice wholly or mainly in consequence of such circumstances.")
The noble Lord said: My Lords, I beg to move this Amendment which is designed to extend the definition of "dismissal" contained in Clause 23(2). At the moment, that subsection provides that an employee is to be taken to be dismissed if the contract under which he is employed is terminated by the employer with or without notice, or if his contract comes to an end and is not renewed. The addition which I seek to embody by the Amendment which I am moving is designed to provide for the situation in which perhaps there has been friction between an employer and a particular employee, and the employer in consequence wants to get rid of the employee. It is expressly to provide for the case in which the employer has, by a consistent course of conduct in relation to that employee, intentionally brought about circumstances in which it is reasonable for him to give notice and he has given notice because of those circumstances. One hopes that that is not a very common occurrence but if one is trying, as the Government are, in these clauses to work out a general code relating to unfair dismissal, it is the submission of this side of your Lordships' House that it is right, in order to see that justice is done overall, to provide for the kind of case even if, as
738
I have said, it is an infrequent one. Whether the drafting is satisfactory I leave to the noble Lord, Lord Drumalbyn, to judge.
I submit that the Amendment is properly conceived to apply to the circumstances, and only to the circumstances in which an employer has, on purpose and intentionally, brought about circumstances, a state of affairs, not on one particular day but by a consistent course of conduct, and that that conduct has been designed to affect that employee himself particularly, and that that conduct has continued to such an extent and with such effect that any ordinary person, looking at the situation from outside, would say, "It is reasonable for that employee to leave that employer." When the situation is such that the employee as a consequence of these circumstances gives notice to terminate his employment, then, if the House accepts my Amendment, the result would be that within the meaning of Clause 23 the employee has been dismissed, and if there were no circumstances justifying dismissal then he could claim compensation as for an unfair dismissal. This is a completely non-Party point and I submit that it completes the code in a not altogether unimportant particular. I beg to move.
LORD STONHAM: My Lords, I hope that the Government will accept this Amendment, which is most reasonable. It is not designed to deal with the good or average employer, but is aimed at the unscrupulous employer who will adopt any device to make life impossible for a particular employee, with the object of getting rid of him and, at the same time, disqualifying him from receiving the benefits to which he would otherwise be entitled; for example, employment pay or redundancy benefit, to which the employer would have to make a contribution. I cannot see that there can be any possible objection to giving employees this protection. It is no good saying that it does not or cannot happen. The Amendment describes particular circumstances in which some employees are dismissed. Life can be made intolerable for them in their employment, designedly so, to ensure that they are goaded eventually to resigning and leaving their employment. The position is very clear and is not to be answered by any sophistries.
7.52 p.m.
THE LORD CHANCELLOR: My Lords, we had a very full debate on precisely this point in the course of Amendment No. 204 on the Committee stage. While I did not seek then to pretend either that circumstances of the kind envisaged in the Amendment could not conceivably take place or that, if they did, the conduct of such an employer would not be open to strong criticism, I made it plain that I did not think it was possible to give effect in this Bill to a direct remedy by way of compensation for unfair dismissal. I gave my reasons at some length in the course of three interventions in the Committee. I do not know—and I say this without disrespect to either of the noble Lords who have spoken—that I can usefully add very much to what I said then.
The noble Lord, Lord Delacourt-Smith, who at that time moved the relevant Amendment (No. 204), began by admitting with the candour one has been accustomed to expect from him that the Labour Government's Bill was in exactly the same position as ours. That fortified me in the conclusion that, despite the confidence of the noble Lord, Lord Stonham, that there could be nothing said against art Amendment of this type, the matter had been considered by the previous Administration, who had been driven, no doubt against their will, as we were, to the conclusion that Amendments of this kind were not really a feasible proposition. It is fair to the noble Lord, Lord Delacourt-Smith, to say that he expressed the confidence that had the Labour Government's Bill been, as he put it, "refined" in the fires of the Committee stage (a pleasant enough simile for those of us who have endured those fires) they would have managed to secure a solution; but he did not suggest any solution that would be attractive to the Government; or convince the Committee. I do not know that this Amendment in the name of the noble Lord, Lord Stow Hill, which puts the point very succinctly, puts the matter any better.
It is conceivable to imagine a situation, especially in a very small employment (though not so easily in a very large one) where an employer, as in a marriage, deliberately makes life unendurable for the employee, as a husband or wife in marriage can do to a partner,
740
with the direct intention of getting rid of her or him. It is an extremely difficult and complex inference to have to draw in matrimonial cases. I should be reluctant to introduce it into a Bill dealing with industrial relations. I cannot help mentioning, in parenthesis, that it seems to me to be quite extraordinary that in Amendment after Amendment the Party which condemns us so wholeheartedly for introducing a complex, legal framework within which industrial relations have to be carried forward in future should again and again propose Amendments which can only open the doors to an unlimited spate of litigation, arguing about problems the resolution of which was next to impossible.
I can only remind the House of what I said to the Committee. I said in the first place that one should remember that by providing a remedy for unfair dismissal the Government were proposing a new remedy with a new source of compensation over and above that provided by the law of contract. You begin to argue about compensation for unfair dismissal at the point where you assume that neither the employer nor the employee has directly broken the terms of contract of employment, but the employer has unilaterally terminated it. We, and also the Labour Government, thought that although the argument was complex enough, when you came to discuss what dismissals were unfair (and the two respective Governments arrived at solutions which were different, ours being slightly the more generous to the employee), the test of what constituted or did not constitute a dismissal should be as simple as possible. Clearly, even in relation to strike and lock-out situations it is difficult to define dismissal in terms which are incapable of argument. Fortunately, the great number of dismissals take place out of the context of the strike or lock-out situation. Therefore it is possible to define them in terms of a unilateral action by an employer against an employee. If you abandon that and start introducing cases where the contract of employment is terminated by mutual consent or mutual dislike, or is terminated by the employee either on terms of mutual dislike or because of unilateral dislike on his part, you open the floodgates to a series of hotly contested cases of litigation in precisely the situation in

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which neither party can be said to have broken the contract.
As I pointed out in the Committee, in a sizeable minority of what I hope will be an extremely small minority of cases, the employer would have broken the contract, and if he had done so he would be liable to an action for damages at common law. At present under the county courts procedure, when Clause 112 is activated by the Secretary of State, the employee will be able to go to the industrial tribunal, at least as an alternative, but in a number of cases the law already provides a remedy. At the end of the day, I would firmly say that the decision arrived at in Committee was correct. Both Governments have come to the conclusion that this extremely rare type of wrong-doing is not capable of remedy within the framework of this Bill, though it may turn out that someone more ingenious than myself might find a remedy—but certainly not within the framework of this Amendment. I feel that the Amendment would lead to a vast number of cases in the courts, some of which would be difficult and some equivocal. At the moment, the Government do not know what load will be placed on the industrial tribunals. There are, I believe, some 10 million terminations of contract already. I could not willingly accept this Amendment, though I accept without resentment the extremely moderate way in which the noble Lord, Lord Stow Hill, has proposed it and the arguments advanced by the noble Lord, Lord Delacourt-Smith, when similar points were raised under different Amendments. I very much regret that I cannot give the noble Lord satisfaction by accepting this Amendment.
8.2 p.m.
LORD DELACOURT-SMITH: My Lords, I do not wish to terminate the debate by intervening, particularly as my noble friend Lord Stow Hill may wish to address himself to the legal aspects of the argument on which the noble and learned Lord on the Woolsack relied. As the noble and learned Lord said, we traversed this ground on Committee stage, when the Amendments bearing upon this matter were withdrawn after discussion in the hope that by further consideration, although the noble and learned Lord was fairly discouraging at
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the time, some solution would he found. It was in the 'light of our consideration of the Committee proceedings that my noble friends and I put down this Amendment, which we hoped might assist the position.
I should like to make one or two observations on the necessity for the insertion of some such provision if we are to make the arrangements for dealing with unfair dismissals as comprehensive as is reasonable in practice. I do not see all the difficulties. It seems to me desirable that we should have this third category in subsection (2). After all, this is a clause which defines dismissal. The remaining clauses deal with the issues of dismissal, but those do not begin to arise until a dismissal has been established. I recognise fully that it might be hard for an individual to establish that his resignation falls within the Amendment, but it is common ground among noble Lords who have spoken that such cases do arise. The harshest and hardest cases of this type tend to be cases of elderly men and women who have given a considerable period of service to the organisation from which they feel themselves under an obligation to resign. I appreciate the noble and learned Lord's point about the possibility of cases which did not have substance. However, I think that that is a consideration which applies to many proceedings which might arise out of this Bill, and the point has frequently been made that if there is any possibility of even a small number of cases of injustice arising, we should do our best to deal with them.
Although I appreciate the noble and learned Lord's desire to meet the point, I cannot feel that he has given a convincing answer. While I realise that it may be difficult for an individual to substantiate his claim, I still think that there is virtue in having the provision in the Bill, so that even in such a limited number of cases people are not left—even though there are possibilities of proceeding in other ways—without any possibility of establishing that they had in effect been dismissed and were therefore entitled to have their cases considered under the succeeding clauses of the Bill.
LORD STOW HILL: My Lords, while I thank the noble and learned Lord for his answer, I would have been glad had

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he been able to say that he would give a little further thought to this. I think that we are agreed that injustice might result, if provision is not made for this sort of case. I accept that a counterbalancing consideration is that we may get a number of cases before the industrial tribunals in which an employee has left and the tribunal is called upon to decide the extremely difficult issue of fact as to why he left—whether as a victim of persecution, or in a pique because he was over-sensitive or (a much more obvious case) because he thought he could discern a better opportunity of employment in some other direction. I accept that the balance is difficult to hold.
My own view is that of my noble friend Lord Delacourt-Smith, that the resulting cases of hardship and injustice might be sufficiently numerous for another effort to be made to try to formulate some more satisfactory drafting terms. That is why I would have been glad to hear the noble and learned Lord say that he had not closed his mind. There is time between now and Third Reading. I do not think that, ordinarily, it would be so difficult for an industrial tribunal on an issue of fact to come to a reliable conclusion. The employee would have to say what circumstances he relied upon, they could be investigated and the tribunal would have to conclude on them, as on other issues raised in cases of unfair dismissal. However, there is the argument and the reply. I would be glad if the noble and learned Lord said that, even at this late stage, he would give some further thought to it. The tribunals are intended to be courts of justice, and I would have hoped that an Amendment could be drafted to provide for the cases I have envisaged.
8.10 p.m.
THE LORD CHANCELLOR: My Lords, the noble and learned Lord has appealed to me. I can only utter again by permission of the House. I have not given the noble Lord the smallest encouragement either on Committee or now, but since he asks me to give further thought to this matter let me give him this general assurance: I will always continue to reflect on matters of this kind, but I do not think the difficulty consists in finding a form of words but in finding a solution which would be capable of practical application in the courts. There-
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fore, I do not think it is a matter of drafting. If it were I would be much more optimistic but the noble Lord having made this appeal to me, I would like to tell him that there is nothing to which I shall close my mind even at this late stage although I do not want to give him the smallest encouragement.
LORD STOW HILL: My Lords, I ask leave to speak again, just to say "Thank you very much". I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 24 [Fair and unfair dismissal]:
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Amendment No. 48:
Page 19, leave out lines 10 to 14 and insert—
(" (1) In determining for the purposes of this Act whether the dismissal of an employee was fair or unfair, it shall be for the employer to show—

(a) what was the reason (or, if there was more than one, the principal reason) for the dismissal, and

(b) that it was a reason falling within the next following subsection, or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held.

(1A) In subsection (1)(b) of this section the reference to a reason falling within this subsection is a reference to a reason which")
The noble and learned Lord said: My Lords, it would be possible to propose this Amendment in two ways, a long way and a short way. I propose to take the shortest route that I can to the objective. This and the next two Amendments arise from an undertaking given in Committee on what was then Amendment No. 203. Members of the Opposition considered that the unfair dismissal provisions did not clearly and unmistakably place the onus of proof on the reason for dismissal on the employer, and my noble friend the Leader of the House agreed to look again at the provisions of Clause 24.
The purpose of these Amendments is to make it absolutely clear that the onus of proof on the reason for dismissal rests fairly and squarely on the employer. I have used the expression "these Amendments". The Amendments are Nos. 48. 49 and 50, but there is a consequential Amendment No. 56. Your Lordships

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will see that what is proposed in subsection (1) is to substitute a clear statement of what the employer has to show, and then, in subsection (1B), at the end of line 23, it is proposed to insert a provision that
"Where the employer has fulfilled the requirements of subsection (1) of this section, then, subject to sections 25 and 26…"
with which at the moment I shall not concern your Lordships—
"the question whether the dismissal was fair or unfair shall be determined in accordance with the following provisions of this section".
Then, at page 20, line 5, it is proposed to put in this new subsection—
"Subject to subsections (2) and (3) of this section, the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances he acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee;"
If I may add a word of commentary on the last of these insertions it is this: supposing you get a situation in which an employer has dismissed an employee for lateness, there can be circumstances, and there can be employments, in which the smallest degree of lateness might be a reason for terminating the employment. Ordinarily it is not. If an employee comes a quarter of an hour late very occasionally, and has a good reason for doing so, no sensible or reasonable employer would terminate the employment, although if it happened habitually every day, he might take a different view. On the other hand, there would be sensitive employments when a whole town might be put in danger and when a small degree of lateness would justify dismissal. These are questions of fact for the tribunal. That is why it is established by the last Amendment that before you can decide the question in the ultimate, you have to look at the actual conduct complained of, even if it is established, to see whether in the circumstances it is reasonable to terminate the employment on those grounds. I beg to move.
LORD STONHAM: My Lords, may I take it that in deciding whether the dismissal has been fair or unfair the employee will have full opportunities to state his case? The kind of example I have in mind is that of a man perhaps employed satisfactorily for some years and of whom little has been heard during the course of his employment. He
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becomes a shop steward and it seems, both to his fellow work-people and to his employer, that his whole character has changed. From being a cog in the wheel he has become a thorn in his employer's side. This may be because he is properly and responsibly fulfilling his duties as a shop steward. The employer, however, may take a different view and may decide he does not want him in his employ. If he does so decide, there may be several ways in which he can achieve his objective—for example, in the selection of work. In such a case I have little doubt that the employee could prove that he had been unfairly dismissed. I should like to know whether such a case could be dealt with under this clause of the Bill?
THE LORD CHANCELLOR: My Lords, if I may reply to that with the permission of the House, the answer is Yes, he would have an opportunity of stating his case.
LORD DELACOURT-SMITH: My Lords, this Amendment is not an easy one for those of us who are not deeply experienced in legal matters to appreciate, but I am fortified by the assurance of the noble and learned Lord, which naturally I accept, that its intention and effect is to place beyond any doubt at all the proposition that the onus of proof is on the employer to establish that the dismissal was a fair one. I appreciate the actions of the Government in putting forward Amendments that are designed to make this clear.
THE LORD CHANCELLOR: My Lords, I beg to move Amendment No. 49.
Amendment moved—
Page 19, line 23, at end insert—
("(1B) Where the employer has fulfilled the requirements of subsection (1) of this section, then, subject to sections 25 and 26 of this Act, the question whether the dismissal was fair or unfair shall be determined in accordance with the following provisions of this section").—(The Lord Chancellor.)
THE LORD CHANCELLOR: Amendment No. 50 is a consequential Amendment. I beg to move.
Amendment moved—
Page 20, line 5, leave out from beginning to ("shall") in line 18 and insert—
("( ) Subject to subsections (2) and (3) of this section, the determination of the question

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whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances he acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question").—(The Lord Chancellor.)
8.20 p.m.
LORD DELACOURT-SMITH LORD DELACOURT-SMITH moved Amendment No. 50D:
Page 20, line 19, at end insert—
("( ) Where a registered disabled person is dismissed and the principal reason is shown to be the employee's lack of capability, then in deciding for the purposes of this section whether the dismissal shall be regarded as fair, the Tribunal shall take into account whether or not the employee was replaced by a registered disabled person.")
The noble Lord said: My Lords, I beg to move Amendment No. 50D standing in the name of my noble friend Lord Diamond. This is a simple Amendment the effect of which will I am sure commend itself to your Lordships. There is very little need to explain it; it largely speaks for itself. As will be seen, it deals with a situation in which a registered disabled person is dismissed and the principal reason given is that he is not able to perform the duties for which he has been employed. It would, in our view, be most material for the tribunal to be aware of whether in fact the employee in question had been replaced by another registered disabled person. I am sure that this general proposition—the desire to do something in respect of this point—will commend itself to the Government, and I hope that they will find themselves able to accept this Amendment or, at any rate, the substance and spirit of it. I beg to move.
THE LORD CHANCELLOR: My Lords, I wholeheartedly agree with the purposes which the noble Lord, Lord Delacourt-Smith, has in ensuring proper protection for registered disabled persons under the "unfair dismissal" provisions of this Bill. The difficulty that arises is this. Quite obviously, to my mind, if the employer purports to dismiss the registered disabled person on the grounds of capability (which for the purpose of discussing this Amendment is the relevant ground upon which he could do so
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without being unfair) should the employee challenge the bona fides of this ground he would be entitled without any Amendment of this kind to draw the attention of the tribunal to the fact that the employer had in fact replaced him by somebody other than a disabled person. I have no real doubt about that. It would be a relevant factor, although it would not be a conclusive factor. To that extent the Amendment is not a necessary Amendment.
Difficulty arises from two sets of related circumstances. It may well be, to take one set of circumstances first, that an employer employs a disabled person with a particular disability and comes to the conclusion, after seeing him attempt to work, that it either is not safe or is not wise to continue with a disabled person to do that particular work. In those circumstances, I do not think anyone would wish to say that the employer was not entitled to terminate the employment without his action giving rise to a claim for unfair dismissal. In the second place, all disabilities differ in kind: there can be a disability of the eye, of the hand, of the leg. Therefore, whether one replaces a whole employee with a registered disabled employee, or replaces a disabled employee with a whole employee, is not a conclusive test of whether the previous employee is a person who was dismissed for want of capability.
Those circumstances would not in themselves be an insuperable objection to an Amendment of this kind—which, as I say, is more to be criticised on the grounds of its want of necessity than of its want of desirability—were it not for the fact that the Disabled Persons (Employment) Act 1944 provides, I submit to the House, the correct protection for employees of this kind, and the one which Parliament has designated for the purpose, and which is as a matter of fact designed for this purpose. It does not apply to very small establishments, but it applies to all employers with 20 or more employees, and requires such employers to give employment to a quota. Failure to employ the quota of registered disabled persons does not in itself constitute an offence, but there are two safeguards. The first is that an employer must not discharge a registered disabled person without reasonable cause—and I

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use the phrase "without reasonable cause" because it is the actual language of the Act—if he is below his quota, or if the discharge would bring him below it. If he does so he renders himself liable to prosecution under Section 9 of the Act. Moreover, while an employer to whom the Act applies is below quota he may not engage anyone other than a registered disabled person without the Secretary of State's permission.
The view of the Government is that the provisions of this Act, which was I think one of the fruits of the Coalition Government, provide adequate protection in this field, and probably more suitably designed protection than that which the noble Lord has in mind. In addition to that, I would have argued and urged the factor to which I attach importance; namely, that I am myself quite convinced that if anyone wanted to challenge the bona fides of an employer's dismissal of a disabled person for the purposes of a claim for compensation for unfair dismissal before the industrial tribunal under these provisions, he would in fact be entitled to refer to the nature of the person who was engaged to take his place. For those reasons, and without any want of sympathy in the case, I would submit that the Amendment is not one which ought to be pressed.
LORD STONHAM: My Lords, I find myself in some difficulty over this Amendment because it says:
"Where a registered disabled person is dismissed and the principal reason is shown to be the employee's lack of capability…".
But the employee's lack of capability is known when he is engaged, and therefore I find it difficult to see that that would be adduced as a reason for dismissing him. Disabled persons fall broadly into two classes: those who can do a particular job, in certain conditions as well as a person who is not disabled, and those who, by reason of their disability—blind persons, for example—have an output far below that of a well person. The degree by which the second class of disabled person falls below the output of a well person is quite remarkable.
On Saturday, at a meeting with a trade union organiser, one of the items discussed was the position of one of my own employees who is terribly disabled. I hasten to add that he was not in danger
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of dismissal; it was a question of deciding how his wages should be increased. The trade union official himself suggested that this man should be regarded as doing a 20-minute hour; that is to say, his output, in the estimation of the trade union, was one-third that of a normal worker. That is how it was decided. I do not quite see how any employer on that basis could eventually discharge a disabled person because of a lack of capability. The man's lack of capability was assessed when he was engaged, and I do not sec how a dismissal in any case could he regarded as fair. I feel that the addition of these words will create dubiety in a situation where at present good will exists among the overwhelming majority of employers.
LORD SOMERS: My Lords, the noble Lord, Lord Stonham, has said that a man's lack of capability is known when he is engaged. But is it not true that that disability might increase during the period of his engagement? Supposing, for instance, it is a question of poor sight: it is quite true that during a year's work his sight may have deteriorated very greatly. Therefore I do not think one could say that his disability was known when he was engaged.
VISCOUNT HANWORTH: My Lords, I was going to make the same point as the noble Lord, Lord Somers, has just made; but I make one more. If the nature of the firm's business changes or increases in scope, it is quite possible to envisage circumstances where the disabled man will be no longer able, with the best will in the world, to perform these duties.
LORD SLATER: My Lords, while it may have been a short debate on this matter, I am grateful that the noble and learned Lord on the Woolsack brought out the position of the previous Act and the powers that exist under that particular section with regard to these disabled people in firms with 20 or more employees. However, on the point made by the noble Lord, Lord Somers, in regard to poor vision which may deteriorate and have an effect on the man's capabilities, there is something else which noble Lords must never forget. Within industry, where certain people rise in the ranks it is possible for a certain type of individual to be put into a position of authority.

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He may be able to curry favour with a certain number of people, but not with the majority of people in that factory. Because of that, he must have an outlet somewhere, and that is in regard to the disabled person. I have seen that happen.
The outlet has the effect of his thinking that this man has not the capability, and he therefore recommends that the man be dismissed and be replaced by another disabled person, if only to brine the number up to the quota enforced by the regulations. I have seen a situation in which an individual, because he cannot get his own way with the language he has been accustomed to use with people with whom he has worked side by side, once he reaches that standard of promotion is able to talk only to the disabled person because he knows what answers he will get. This disabled person has to be very cautious and wary; he must watch his step, because he knows that the first wrong move, so far as this individual is concerned, will mean that he will be given notice arid will be dismissed from service. I have seen this operate, and I have had to take action. In many cases I have taken action against the recommendation made when I was in a particular Ministry. That is one instance where I have had experience.
Apart from the advice, which I believe is reasonable, given to us by the noble and learned Lord, the Lord Chancellor, I do not know what is the attitude of mind of my noble friend who has moved this Amendment.
LORD DELACOURT-SMITH: My Lords, the position of the registered disabled is always a somewhat complex one, and it is of great human importance in industry. Noble Lords who have contributed to this short debate have touched on a number of aspects, but if one looks at the actual Amendment which is before this House I am certainly disposed to say that what has been said by the noble and learned Lord on the Woolsack is perhaps the best line for the House to take at this stage on the matter. In the light of the statement which he has made, and the advice which he has given to the House, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 26 [Dismissal in connection with a strike or other industrial action]:
LORD STOW HILL LORD STOW HILL moved Amendment No. 50A:
Page 21, line 25, leave out ("not be regarded as unfair unless it is shown") and insert ("be regarded as unfair if it is shown").
The noble Lord said: My Lords, this is a short and simple Amendment. My only purpose in proposing it is really to do no more than simplify the language by removing one double negative. As at present drafted, if the principal reason for dismissal was that the claimant took part in the strike or other industrial action, the dismissal shall not be regarded as unfair unless it is shown to be as in paragraphs (a) and (b). I seek to substitute for the words "not be regarded as unfair unless it is shown" the words "be regarded as unfair if it is shown". I have puzzled over those words; I do not think that they alter the meaning and I think they are easier to read and to follow. It is for that limited purpose that I propose this Amendment.
THE LORD CHANCELLOR: My Lords, at this stage this Amendment, unless it is related to some other Amendment, appears to be purely a matter of drafting and to have no significant effect on the Bill at all. That is the advice that I have received. Should I turn out to be wrong about it, I should like to come back and tell the noble Lord that I have erred, but I tend to resist the Amendment on the Report stage on the grounds that it would make no significant difference to the Bill.
LORD STOW HILL: My Lords, I moved this Amendment separately for that limited purpose, but if the noble and learned Lord feels that the change is not really desirable or helpful I do not press it. As the noble and learned Lord has suggested, there are other Amendments on the Order Paper which at first sight might be thought should be read with this Amendment. I desire to move them separately because they deal with a separate aspect of the clause, but perhaps I may leave that aspect until we come to it. I do not press this Amendment; it is simply a small change of language which, speaking for myself. I should have thought would make the clause easier to

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read. In the circumstances, I beg leave to withdrawn the Amendment.
Amendment, by leave, withdrawn.
8.39 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 50B:
Page 21, line 33, at end insert—
("or
(c) that the dismissal took place in circumstances which involved a conflict with any of the provisions of the Workers' Representatives Recommendation 1971 adopted by the General Conference of the International Labour Organisation in June, 1971,").
The noble Lord said: My Lords, I submit that this is an Amendment of considerable importance. Before explaining its purport, may I remind the House of the general purport of Clause 26. Previous clauses dealing with unfair dismissal have dealt with cases of dismissal for various reasons. This clause is limited to the case in which a worker is dismissed because he has taken part in a strike or in other irregular action short of a strike. Obviously, therefore, from its very nature it is a clause of considerable importance because it deals precisely with what is sometimes loosely referred to as "the right to strike".
The structure of the clause is this: if the reason for the dismissal of the complainant is that he took part in a strike, that is to be deemed to be an unfair dismissal if one of two things is shown. The first is that he was dismissed whereas others who were in exactly like case and who also took part in the strike were not dismissed, or that they were offered re-engagement and he was not. That is the first thing that has to be shown: in other words, that there was a srtike and that afterwards the complainant was not kept on (if I may use a neutral phrase) whereas others were. He had to go and they were allowed to stay. Prima facie that raises a case of unfair dismissal. But it is not enough by itself, because as the clause is drafted it goes on to provide that the dismissal is, nevertheless, not to be regarded as unfair unless something further is shown, and that further element in the proof is contained in the lines which follow from line 34. Broadly speaking, if I may summarise from line 34 to the top of page 22, line 1, that
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requirement is as follows: it must be shown, in addition to the fact that he was dismissed and others were not, that the reason for his dismissal was that he was—and I quote
"exercising, or indicating his intention to exercise, any of the rights conferred on him by section 5(1) of this Act:"
Your Lordships will remember that Clause 5 is the clause which, subdivided under particular sub-headings, gives the worker the right to be a member of the union that he chooses, or the right to be a member of no union, and, in paragraph (c) of subsection (1), where he is a member of a trade union, the right to take part in the activities of the trade union. Therefore, before he can win his case it must be shown that he took part in a strike, that he was dismissed when others were not, and that the reason why he was dismissed and others were not was that he had carried out his intention of taking part in the activities of the union. That is what has to be shown. But the puzzle does not end there, because there is a proviso to that which has the following effect. Even if he can show that the reason for his being dismissed was his indication that he proposed to take part in the activities of the union, he does not succeed in his claim if the activities which he said that he wanted to take part in—I summarise again, and I hope accurately—really consisted in taking part in the strike after the strike had begun.
If that is approximately a summary of this really very complicated provision, I submit that it needs careful consideration. It means that a worker who has struck and has been dismissed will not be able to claim compensation for unfair dismissal if the fact is that he continued to be involved in and took part in the strike after it had begun. That is clearly penalising him for exercising what is loosely called his "right to strike". He renders himself liable to dismissal if he does not immediately desist when the strike begins. I submit that is the effect of the clause.
The Amendment which I am moving at the moment is Amendment 50B, which would seek to add to the paragraphs in subsection (2) of this clause a further provision, which would be that the worker succeeds in his claim that he was unfairly

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dismissed if he can show (in the terms of the Amendment)
"that the dismissal took place in circumstances which involved a conflict with any of the provisions of the Workers' Representatives Recommendation 1971 adopted by the General Conference of the International Labour Organisation in June 1971,"
That is a document with a number of different articles, but I think it is sufficient to call your Lordships' attention to Article for this purpose. It reads:
"Workers' representatives in the undertaking shall enjoy effective protection against any act prejudicial to them, including dismissal, based on their status or activities of a workers' representative, or on union membership or participation in union activities in so far as they act in conformity with existing laws or collective agreements or other jointly agreed arrangements."
I submit to the House that if I have summarised with approximate accuracy the content of this clause, it does conflict directly with that Article 1. It penalises a striker who continues to take part in the strike after it has begun. In other words, it offers a direct challenge to the right to participate in a strike. That is not one of the activities of the union, once the strike has begun, in which you may participate without jeopardising—and indeed putting an end to—your claim for compensation if you are dismissed as a result of engaging in the strike. As I have said, that involves a direct conflict with Article 1 of that recommendation. I submit that it is right on general priciple that when we, in this country, are framing a general code of industrial relations (as this Bill is intended to be) we should not so frame it as to run directly counter to this recommendation of the which, in my submission, impinges directly on the situation and is designed to safeguard precisely that right to strike as the clause as at present drafted intends.
My Lords, it might conduce to a saving of your Lordships' time if, with the agreement of the House, I refer to the content of Amendments 50C and 51, because they really both have the same effect. They leave out that part of the clause which contains the language which I have submitted to your Lordships is the offending language. If one leaves out from line 34 on page 21 to the top of the next page, one leaves out all those words to which I have referred and in consequence produces the result that the clause
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as it would be left after the omission of those lines no longer offends against that I.L.O. recommendation. Even if it did not offend against the I.L.O. recommendation, I would submit to your Lordships that in any event that part of the clause should be left out. It is surely most unfair if, when you say that a striker may take part in a strike as part of his union's activities, you qualify that by saying that his participation must not continue in effect (if I may summarise) after the strike has begun. In my submission that is illogical and difficult to justify, but that is the effect of the clause, and I would submit that in any event those words should be deleted. But, technically, at the moment I am commending to your Lordships Amendment No. 50B, and for the reasons I have given I ask your Lordships to agree to it. I beg to move.
THE LORD CHANCELLOR: My Lords, the short answer to this amendment is that I am going, when the noble Lord moves it, if he does move it, to accept Amendment No. 51. Of course, if Amendment No. 50C were to be accepted (and I am not going to accept No. 50C) he would not be able to move No. 51, because it would have fallen. But my intention is to accept 51, but not 50B or 50C, and the reasons I may give later when the noble Lord moves No. 51.
LORD STOW HILL: My Lords, if the noble and learned Lord would permit me, would it be of help if I said I shall be very content to ask leave to withdraw No. 50B if the noble and learned Lord will advise the House that No. 51 should be accepted. The only caveat, if I may respectfully say so, is should it not be, with respect, No. 50C. Because if one does not accept No. 50C one leaves in the first three lines of subsection (3) which would seem not to have a very satisfactory effect. But I would be quite content, if the noble and learned Lord feels able to advise the House to accept No. 51, speaking for myself, to withdraw No. 50B.
THE LORD CHANCELLOR: My Lords, I do certainly say that I will accept No. 51, but I can only do it on condition that No. 50C is not moved, or not accepted if it is moved, because I am advised by the Table that if No. 50C were to be agreed No. 51 could not be moved.
LORD STOW HILL: My Lords, I hope the noble and learned Lord does not think I am being tiresome, but I am trying to help. I shall be perfectly content, if the noble and learned Lord feels able to advise the House to accept No. 51, to ask the leave of the House to withdraw No. 50B, and when No. 50C is called not to move it.
THE LORD CHANCELLOR: My Lords, I can give that assurance; I will accept No. 51.
LORD STOW HILL: My Lords, in those circumstances, unless any other noble Lord wishes to intervene, may I beg leave to withdraw Amendment No. 50B.
Amendment, by leave, withdrawn.
8.53 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 51:
Page 21, line 42, leave out the proviso.
The noble Lord said: My Lords, I have deployed the reasons for this Amendment. If the proviso is left out I think the clause no longer offends against the I.L.O. recommendation to which I have already referred. I have already given my reasons for submitting to your Lordships that, even apart from the fact that the proviso offends against the recommendation, it is one which in any event on the merits is difficult to justify, and in my submission is not justifiable. I do not think I shall assist your Lordships by repeating the reasons. I beg to move.
THE LORD CHANCELLOR: My Lords, as I promised, I am going to accept this Amendment. We did re-examine this after the Committee stage, partly, admittedly, because of possible difficulty with the I.L.O. Convention, which was at that time very new, but not directly on that question, but on the merits. Our present Clause 26 is, we believe, considerably more liberal than the corresponding clause in the previous Government's Bill. But I came to the conclusion when I analysed it that the proviso would serve no useful purpose, and my advice to the House is to accept Amendment No. 51 without qualification.
LORD DELACOURT-SMITH: My Lords, might I ask the noble and learned Lord—and I am sure he would receive the leave of the House to do so—if he could comment on one or two matters? If it were in order for him to do so, perhaps he could indicate why he would have regarded Amendment No. 50C as unacceptable although he is advising the House to accept No. 51. Further, could he give a very firm assurance to the House that the clause, as it will stand with Amendment No. 51 in effect, will not in any way be in breach of the convention to which my noble friend has referred? The noble and learned Lord will appreciate that there are aspects of the convention which we may yet think it proper to draw attention to on later clauses, for example, when we come to questions of reinstatement after dismissal. But they do not arise at this stage, and the assurance I am asking for in respect of the I.L.O. Convention is limited solely to the subject-matter of the present Clause.
THE LORD CHANCELLOR: My Lords, to answer the question which the noble Lord, Lord Delacourt-Smith, has posed to me, and if I may speak again by leave of the House, I shall have to explain first of all why we originally put in the proviso in order to explain why we then took it out again. I should begin, therefore, by explaining why Clause 26 was formulated as it is. The unfair dismissal provisions are meant to safeguard individuals as such, and are not really appropriate to collective confrontations which are involved in either strike or lockout situations. We wish the unfair dismissal proposals to protect the rights of individuals, but to be neutral in what one might call industrial confrontations, either of the one category or the other.
Most strikes, of course, are settled on the basis of an agreement to avoid victimisation, and this is what we would wish to remain. An agreement on non-victimisation will, one hopes, be honoured by both sides who are parties to it, and this is what we would wish to encourage. The particular phraseology of Clause 26 applies to the minority of cases where this is not done. We have to have in mind two situations. The first is where, as part of the ritual of the

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strike situation, the employer dismisses all the strikers, but as a way of putting pressure on them to come to the bargaining table; this is not affected by the Amendment. Secondly, we do not wish to handicap those employers who from time to time have dismissed persons they regard as irresponsible, and in respect of whom no non-victimisation agreement applies. We came to the conclusion that the proviso goes too far in seeking this second objective. The cross-reference in Clause 26 applies only to trade union activities which will be interpreted as taking part in the activities of a registered organisation. In view of the requirements as to registration, the activities of a registered union will be limited to what one might call the respectable activities in accordance with the rules of a union; the activities of a union would not include the activities of a group of, say, completely unofficial trouble makers.
Clause 26 in essence only enables employers to dismiss strike ringleaders without the risk of legal proceedings; it does not free them from the risk of industrial action jeopardising the settlement of the strike; and they are only likely to get that freedom to dismiss strike ringleaders with the co-operation of the trade union leadership. This is because, as I say, the ordinary end of the strike is a non-victimisation agreement. Under neither Bill, neither the Labour Bill nor ours, would employers who are found to have unfairly dismissed strikers for taking part in trade union activities during a strike have to face compulsory reinstatement, only compensation. Having reconsidered the question, I came to the conclusion, and so have the Government, that the proviso in subsection (3) should be withdrawn.
I would, however, stress that the Secretary of State, in deciding to omit the proviso, has come to that conclusion primarily on the merits of the case, and not as a result of any possible difficulty in regard to the I.L.O. Convention, although he is mindful of his international obligations and desires to maintain our excellent record in the ratification of International Labour Conventions. In reply to the other two questions put by the noble Lord, Lord Delacourt-Smith, I can only say that the advice that I have received is that
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this is the only point at which we could be in possible breach of that Convention, and I found that an additional reason why we should accept Amendment No. 51, which removed that possibility. If there are, or can be, other situations in the course of the Bill to which the noble Lord wishes to draw my attention, I will of course consider them in that context.
LORD STOW HILL: My Lords, I only intervene to thank the noble and learned Lord for accepting that Amendment. I had myself independently examined the recommendation, in order to form a view on whether the clause conflicted with it in any sense apart from the proviso. I have arrived at the same conclusion as that which is indicated by the noble and learned Lord. The noble and learned Lord has been so good as to say that if both he and I are mistaken about that the matter can be reconsidered; but I hope we are both right, that with the removal of the proviso there is no contradiction of the recommendation.
Clause 27 [Excluded classes of employment]:
9.2 p.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 51A:
Page 22, line 18, leave out paragraph (a).
The noble Baroness said: My Lords, we did discuss this matter at an earlier stage and, as one would expect, had a most conciliatory answer from the noble Earl, Lord Jellicoe. Nevertheless, we thought that we should present this matter once more to your Lordships' attention, because we have received considerable pressure, especially on behalf of the agricultural workers, in this regard. The effect of the Amendment will be to leave out paragraph (1)(a) in Clause 27, which says that the safeguards against unfair dismissal (except in certain respects, which are referred to in what is now Clause 29) would be withheld where there are establishments with fewer than four employees who have been continuously employed for a period of not less than 13 weeks, and so on.
Any who have knowledge of farming at the present day will appreciate that the whole trend in British farming is to

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reduce the number of men working on farms, and to replace them by machines. Therefore, there are a number of establishments in which there would be fewer workers, and they might not qualify under this proviso. The Agricultural Workers' Union have assured us that they are very anxious indeed about this. They are very well aware of the drive for greater productivity in agriculture, and they appreciate the reasons for it. It can cause hardship for some of their members who have to leave the land and change their employment, and this happens very often in areas where there may not be very much choice of other employment. This is a process which has been going on now for some years, and we think it is likely to continue.
They have put to us the situation which would arise when, at one point of time the workers would be protected, and then, because of a reduction in the labour force, they would be outside the protected category, and they think that this could lead to feelings of frustration and injustice. I do not pretend that we have had such strong representations from unions in other industries, but I know there are quite strong feelings about this matter in, for example, the distributive trades, where again the unit of employment in any one establishment can be quite small, and also in other service industries such as garages, and establishments of that kind.
One of the reasons why we are concerned about this is because it is precisely in such establishments that trade union organisation is apt to be at its weakest. In other words, the particular individuals, whose position may be just as deserving as those working with a larger labour force, are less likely to have the protection of their trade union organisation in these circumstances than those who work in larger establishments. It is for these reasons that we have put down this Amendment again because we appreciate, as the noble Earl said on the last occasion, that in the proposed legislation of the last Administration there was a limitation comparable with this one. We are also well aware that under what is now Clause 29 the Secretary of State is taking powers to add to, or vary, any of the provisions of Clauses 27 and 28 of the Bill, and we are fully apprised of this, and it is on the record.
However, because we have had considerable pressure, particularly on behalf of the agricultural workers, we thought that it was only right to bring this yet again before your Lordships, so that there should be no doubt at all that we are concerned that everyone should have justice if his employer should dismiss him improperly, and that it should not be confined, at any rate for any length of time, to those who are working in the larger establishments. The ones in the small establishments are normally less well protected by their organisation, and they are in greater need of protection, not in less. Therefore, we think that we should take this very much into account. I beg to move.
9.7 p.m.
EARL JELLICOE: My Lords, the noble Baroness very kindly said that I had spoken in a conciliatory vein when we discussed this—I suspect it was pretty early in the morning—at the Committee stage, and I should like to echo what she has said; I think she has put this Amendment in a very conciliatory and winning way.
BARONESS WHITE: My Lords, I am most obliged to the noble Earl. It was 7.10 a.m., and he was remarkably conciliatory for that hour.
EARL JELLICOE: My Lords, I am not certain whether it was my conciliatory nature or whether sheer weariness had affected me at that time, but I know that it was at a reasonably early hour of the morning. As the noble Baroness has explained, this Amendment would remove from the exclusions in Clause 27 employees in undertakings with fewer than four employees who had been continuously employed for 13 weeks or more. I think I explained at about 7 a.m. in mid-May what lay behind our feeling on this point. There are two main reasons why we feel it is right that Clause 27 should contain this exclusion. In the first place, this is really a question of the nature of the employment in the case of a very small concern such as a farm. One is there usually relying on very close personal and, indeed, intimate relations. Therefore, when there is a dismissal the circumstances usually turn on issues which may not lend themselves to a legal adjudication. If we were to include those cases, they would present

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the tribunals with extraordinarily difficult problems of sorting out the rights and wrongs and of determining the right remedies; because in such cases the remedy of re-engagement would in many cases probably not be the right one. That is the first leg of the argument for the exclusion of the very small concern from the unfair dismissal provisions.
The second leg is a purely practical one. I explained this at Committee stage and perhaps we may come back to it on a subsequent Amendment. The exclusion of the very small concern would, to some extent, help to relieve the heavy case load which we anticipate is going to fall on the industrial tribunals. I do not wish to repeat the arguments and considerations which were in our minds at Committee stage and of which I know the noble and learned Lord, Lord Gardiner, is well aware. I will only summarise them here and say that, through independent research, we anticipate that unless we take some action to reduce the anticipated case load, the annual case load facing the industrial tribunals might be around 250,000 cases. That is our fear, as I think it was the fear of the previous Government, who, for this practical consideration among others, came to the same conclusion as we did on this question of what should be excluded and why it would be right to exclude the very small concern under Clause 27.
Then there is the question of the thirteen weeks. Perhaps I should touch on that, because it is a point which was introduced at Committee stage in regard to an Amendment which I think I moved myself. The underlying reason was that we felt it was right to exclude most casual or temporary seasonal workers from the aggregate, thus avoiding what would he an absurd anomaly, whereby a regular employee might be excluded from the unfair dismissal provisions for the greater part of the year, but could come within their scope for a very short period when the labour force was temporarily expanded by casual or seasonal labour. This happens in the agricultural field; for example, at the time of hop picking in Kent and in orchards and elsewhere. It would be absurd if regular employees in small concerns were able to pop in and pop out of the exclusion provisions, merely as a result of very temporary
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and purely seasonal circumstances. Those are the considerations which we have had in mind and which underlie paragraph (a) which this Amendment seeks to delete. I suggest that they are valid reasons and I hope that your Lordships will accept them as valid, as I think they were accepted during the Committee stage. I hope that the noble Baroness will not wish to press this particular Amendment.
I would just add this, because it is something to which she herself alluded in moving her Amendment. I think we are right, and for the same reasons as I think the last Government, who had this particular provision in their draft Bill, were right. But if we are wrong, and if the last Government were wrong, in having this particular provision excluding the small concern, I would point out that there is the provision in subsection (2) of Clause 29, to which the noble Baroness referred, which will allow the Secretary of State to make variations in Clause 27 if he so thinks fit. I made it clear at Committee stage that my right honourable friend would not hesitate to use his powers under that particular subsection if he thought this was right and justified, and he would have in mind very much then the experience of the case-load of the tribunals as it works out in practice.
In summarising my argument, I would say that I think we are right here, but there is an escape clause if we find through experience that this is not so—and this is a matter on which I think we shall need much more experience than we have at the present time. If, through that experience, we find that we are wrong, then there is a way forward which will allow us to make the sort of change for which the noble Baroness is pressing in her Amendment.
9.16 p.m.
LORD GARDINER: My Lords, the noble Earl knows that I am very ignorant about all this. May I just ask him: is the effect of this subsection, apart from the effect of any other subsection, that if a play runs for three months or for less than three months the manager has the right of unfair dismissal, but not if the play runs for more than three months? And, if so, does this not show that the Bill is not very well adapted to the theatrical profession?
EARL JELLICOE: My Lords, I hesitate to align myself with the theory that the noble and learned Lord is ignorant about this. But I should have thought it might depend on whether the play was Waiting for Godot, with a very small cast or a large cast.
BARONESS WHITE: My Lords, I think I should just say, in reply to the arguments put forward by the noble Earl, that the reason, as I understand it, why this exclusion was made in the draft Bill of the last Administration was because of the problem of the case-load and desire not to overload the tribunals, particularly in the initial stages and until one saw how it worked out. This was the reason for it, and that reason I think we would accept as convincing, particularly in the light of the provision that is made in Clause 29(2). I should, how-ever, like to put it on record on our behalf that the first leg of the noble Earl's argument does not appeal to us. Justice is justice wherever it occurs, and injustice is injustice; and the fact that it happens to be in a small establishment is no comfort whatever to the man who has been unjustly treated. So we really cannot accept that argument.
Let us be frank about it. Those who know something about country life know that the greatest injustice can sometimes take place precisely with the small employer and in conditions where it is very difficult for an employee to find other employment. If he is working in a large establishment he is much more likely to be in an area where there are other opportunities open to him. If he is in a small country town, or in the countryside, and particularly (if I may put it rather vulgarly) if his employer is in cahoots with other people, he may find it not at all easy to get another job, and so great injustice may be done. So I would not let it pass for one moment that we accept that part of the argument.
Also, I do not believe that it is beyond the wit of the tribunals to find out the truth. I do not think they would find it more difficult if there were only a few people concerned than if there were several hundred people concerned. Sometimes it is more difficult to find the truth when there is a large number of people concerned; and I am quite sure that any lawyer present would not say, if he were
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in court, "I am sorry, but I cannot try this case because it concerns only four people instead of 500". So that argument, quite frankly, is one that does not appeal to us. But the practical one of the case-load on tribunals, especially, as we have indicated, in the earlier stages, when they will be feeling their way to some extent, I think we do accept. For that reason, having aired the matter again—because we attach importance to it—I do riot wish to press this particular Amendment, and I ask leave to withdraw it.
Amendment, by leave, withdrawn.
9.20 p.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 51B:
Page 22, line 40, leave out paragraph (f).
The noble Baroness said: My Lords, this is quite a different Amendment. This is to exclude paragraph (f) of Clause 27(1). This means that we would wish to bring within the purview of these provisions, that is to say, of possible appeal against unfair dismissal, those who are working less than 21 hours a week. Again we appreciate that this could add quite considerably to the case load. We are concerned with various groups of workers who we think could well be dismissed unfairly and ought to have some real redress. Our attention has been particularly drawn in this connection to the increasing number of contract cleaning workers, and I would draw the attention of the House to Report No. 168 of the National Board of Prices and Incomes, published in April of this year, on the pay and conditions in the contract cleaning trade where they estimate that there are now some 90,000 workers so employed, the greater majority of whom would be liable, at some period at any rate, to come under the exclusions in this clause.
Part-time workers are not easy to organise in trade unions. A great many of them, not all, are women. We have discussed in other clauses the difficulty of trade union organisation for these part-time workers. Once again we are dealing with groups of workers who may suffer injustice but who are less likely than full-time workers to have the protection of trade union organisation. We do not feel that the protection afforded to other workers should be withheld from workers in these circumstances. I do not wish

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to repeat the argument: if you are unjustly dismissed, you are unjustly dismissed; and that rankles whether you are working for 18 hours or 22 hours a week. I think that this Amendment is something that we should press; because whereas we appreciated the practical difficulties in bringing in all the small establishments at the outset it seems to me that on this one, where you have quite a large body of workers on part-time work—and the Government are anxious to give them full rights in other connections where we thought that perhaps they were not so much deserved—the Government should at least be prepared to give them the full benefits of the protection afforded by this part of the Bill. I beg to move.
THE EARL OF BALFOUR: My Lords, one of the problems about these people employed for very short periods is the lack of standards, of knowing exactly what to pay them, of knowing what conditions they should be employed under and so on. Let us take the case of a typical country estate where people are employed in maintenance. The only yardstick that. I have to work on—and here I must speak from personal experience—is the Agricultural Wages Board. If it were not for that body I do not know where I would go for a standard. There are numbers of people employed in, say, school cleaning, the school meals service, cooking, and so on, for anything from 18½ to 27 hours a week. If it were not for the local authorities getting together with the various unions who cover local authority workers, what sort of standard would we have? Not one! I think the problem involved in bringing these people into the field of unfair dismissals is that their hours can be so irregular. The job may be so irregular, and I think it would be impossible, although I have sympathy for the Amendment, to include it in legislation.
9.25 p.m.
EARL JELLICOE: My Lords, I do not feel that I should detain your Lordships long on this Amendment, if the noble Baroness, Lady White, as she half intimated, is proposing to press it to a Division whatever I say. I may, of course, have misunderstood her. Again my argument against this Amendment would be three-legged. The first leg is familiar to
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your Lordships. The problem which we face is the size of the anticipated caseload on the tribunals. We are anxious to make this part of the Bill a success and that the tribunal should not be swamped in the initial stages. Therefore, like the last Government we fear to include in the provisions of the Bill—I will talk about the substantive merits in a moment—large categories which we feel would tend to swamp the industrial tribunals, at least in the initial stages of the operation of this Bill. I do not wish to lean unduly on that argument. The example given by the noble Baroness of the contract cleaners frightened me because she instanced the P.I.B. Report and the number involved of 90,000. I do not know how many people might be involved were the Amendment accepted. It might be a considerable additional case-load that we should be imposing on the tribunals. That is the practical leg of my argument.
There is the theoretical leg which the noble Baroness disputed when I advanced the same argument in resisting the last Amendment. We think there is a strong case on merit—apart from the practical grounds to which I have alluded—for excluding part-time employees who work fewer than 21 hours a week in a particular employment. It is our view that probably such part-timers do not rely on that employment for a substantial part of their livelihood, and it is questionable whether it would be right to bring the requirements of the unfair dismissal provisions to bear on relationships which may, in certain cases, be very tenuous. By her Amendment the noble Baroness is taking out paragraph (f) of Clause 27, but she is not substituting anything else. We say that 21 hours and under should be excluded, but she is not advancing any particular yardstick. So far as I can make out she is not saying it would be unreasonable to have a ceiling of 21 hours but that it might be reasonable if the figure were 19, 17, 13, 11 or 9. One may question whether one should trigger off the rather elaborate provisions of unfair dismissal at 21 hours, but I think it would be absurd to trigger them off on people who, however deserving, are in part-time employment for say only three hours a week. It seems to me that if your Lordships accepted the Amendment there would be no ceiling at all. Therefore, on these grounds, if on no other grounds, I cannot advise your Lordships to accept

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the Amendment if the noble Baroness, who moved it in extremely winning terms presses it.
We are feeling our way in this particular area of the Bill. This is terra incognita to a certain extent, and I think there is a case for treading rather warily. I believe that we have it about right here. There are quite definite precedents. The 21-hour exclusion obtains both in the Contracts of Employment Act, 1963 and in the Redundancy Payments Act, 1965. I do not think it is in those Acts just by chance. This has been thought out and there are respectable precedents—the earlier Acts, and the Bill which was drafted for the last Government—but we have Clause 29(2) and, as I have said, the Secretary of State has made it absolutely clear—I was able to give this assurance to your Lordships—that, having got further experience, if he thinks it right and sensible to lower the ceilings of the exclusions, he will have no hesitation in doing so. On these three-legged grounds. I hone that the noble Baroness, having listened to the case I have deployed, which has become stronger to my mind as I have gone on, will not insist on the Amendment.
LORD BEAUMONT OF WHITLEY: My Lords, I think the point made by the noble Earl. Lord Jellicoe, that 21 hours has not been chosen just by chance, because it is repeated in a couple of statutes, may not necessarily be in itself a good one. What happens is that someone chooses an arbitrary time and this is regarded as a precedent and the more Bills that go through saying that it is a precedent, the greater the precedent becomes. Therefore I do not think there is anything magic about 21 hours. The noble Earl has not been able to produce a specific argument in favour of that figure. Nevertheless, the challenge which the noble Earl made to the noble Baroness, Lady White was a perfectly fair one. On the debate so far, the advice which I would give to my noble friends, if it came to a Division—and the noble Baroness said that it might come to a Division—would depend on whether she was able to produce an answer to his perfectly fair challenge on what she would put in place of 21 hours, and how she would justify that.
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I think the Government ought to justify every single exclusion. As one noble Lord or noble Baroness on the Labour Benches said, it does not became any less an injustice because it is done to someone who does not work for very long. Nevertheless, I agree with the noble Earl, Lord Jellicoe, that it is probably necessary to protect the machinery of the Act from people who are working for only a very small number of hours a week. I agree that this right is important to every individual in every situation. Nevertheless, we are erection immense machinery in this Bill, and one has obviously to exclude a number of minor cases. When we come to the next Amendment I shall speak more about that. At the moment we are looking forward to hearing the noble Baroness's answer to the question as to where exactly she would put the exclusion and whether she proposes to put down an Amendment on Third Reading if, by chance, she manages to get this Amendment carried.
LORD GARDINER: My Lords, I hope that the noble Earl, Lord Jellicoe, did not think, when I asked a question, that I was seeking to be facetious. I am trying to see what the practical effect of this Bill will be on the members of the theatrical profession. Not the only, but certainly the main, benefit conferred on employees is the right not to be unfairly dismissed. Therefore people should not be excluded without some reason. Everybody in industry knows what the hours of work are—9 to 5, or whatever it may be. But has anybody ever seen a theatrical contract which specified the hours of work? They are for the run of the play. A normal play, with intervals, takes two and a half hours; six evening performances and one matinee come to 17½ hours, and two hours would make 20 hours. Again I only ask: has anybody ever applied his mind as to whether this subsection does or does not (one might have to include make-up time) exclude theatrical artistes from the right not to be unfairly dismissed? Or is this again just a case where it has never occurred to anybody?
BARONESS WHITE: My Lords, I am grateful to all noble Lords who have taken part in this brief discussion, and not least my noble and learned friend Lord Gardiner, who has indicated some

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of the practical problems which arise from the Bill as now drafted. I think the noble Earl, Lord Jellicoe, and the noble Lord, Lord Beaumont, were quite right in indicating that perhaps we ought to have gone further in our Amendment than simply to try to exclude this paragraph. I agree that if one had no limit whatever, then the overloading of the machine would be almost inevitable. I think a good yardstick would be to leave out those who are not liable to pay insurance contributions on the ground that they are working too few hours—eight hours a week. That, I think, would be a reasonable limit. We cannot discuss it formally now, because we have not put down an Amendment in that sense, but that, I think, would bring in the kind of person about whom we are concerned and who is doing a substantial amount of work, even though not full-time. It would exclude those who are doing very brief casual work—mostly domestic work probably—and who could quite fairly, be regarded as people who, if they were included, would bring in numbers far too large, on the whole, in circumstances where possibly the provisions of the Bill might not be so important.
Having had this discussion, I think the best thing to do is to consider carefully the point quite fairly put by the noble Earl, Lord Jellicoe, and the noble Lord, Lord Beaumont, and to ask leave to withdraw the Amendment, on the understanding that we shall consider this between now and Third Reading, and put down a further Amendment, possibly on the lines that I have suggested; but I shall have to consult with my noble friends. I beg leave to withdraw the Amendment.
EARL JELLICOE: My Lords, if I may have your Lordships' leave to speak again before the noble Baroness withdraws her Amendment—and I am grateful to her for the reply—I, too, should like to avail myself of the opportunity to consider the point made by the noble and learned Lord, Lord Gardiner.
Amendment, by leave, withdrawn.
Clause 28 [Exclusion of certain contracts for a fixed term]:
9.38 p.m.
LORD BEAUMONT OF WHITLEY LORD BEAUMONT OF WHITLEY moved Amendment No. 52:
Page 23, line 19, leave out ("104") and insert ("52").
The noble Lord said: My Lords, I beg to move Amendment No. 52 standing in the name of my noble friends Lord Byers and Lord Henley, and myself. The debate appears to have reached the stage of errors which it had reached at exactly the same point in the Committee stage. The noble and learned Lord the Lord Chancellor has gone, but why I moved before I made my speech was that I was in great danger of getting into a situation that a number of your Lordships got into, of making a very moving speech, with a terrific peroration, and the noble and learned Lord then saying: "Does the noble Lord move the Amendment?". Well, I have moved it at the beginning, which gives me considerable liberty.
Quite frankly, at 7.15 a.m. that morning we were not in very good order. The noble Lord, Lord Hoy, moved the Amendment at the time and the quotations I am going to make from our OFFICIAL REPORT for May 13, column 1500 et seq., speak for themselves. The noble Lord moved to leave out the whole of this particular part of the Bill which excludes people from the "unfair dismissal" arrangements if they have less than 104 weeks' service. The noble Earl, Lord Jellicoe, told us very fully and frankly the reason for this provision. He said that Clause 26 (which is now the present clause we are dealing with) was not one of his favourite clauses in the Bill; and he went on to explain that the Government administratively would want to move on from these particular exclusions to far less rigid ones. He told us there were something like, so far as his independent investigators could discover, 250,000 cases a year which could come under these particular provisions and give rise to appeals against unfair dismissal. That is a tremendous number, and one sees that even if the industrial tribunals are expanded as quickly as they should be and as indeed the Government have told us will happen, this would overload the machinery tremendously.
The proceedings had got to the stage at that moment that even the noble Lord, Lord Stow Hill, who is generally an absolute stickler for accuracy, misheard the number and put it at 450,000. We got it down again to 250,000 and then

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reached the stage where the noble Earl, Lord Jellicoe, said:
"I said that independent research indicated that there may be in a year anything up to 250,000, but independent research has also shown that something like 80 per cent. of those cases might fall within the first two years."—[OFFICIAL RIPORT, 13/5/71; col. 1504.]
It was not only at 7.15 a.m. that morning that I was unable to understand that statement: I was unable to understand it for quite a bit afterwards. I concede to the noble Earl that I was probably being exceedingly stupid and I now realise that what he meant was that about 80 per cent. of the 250,000 cases occur to employees who have been employed for less than two years, but it did not actually read or sound like that at the time.
EARL JELLICOE: My Lords, I must apologise to the noble Lord. I should like to make it clear that he has interpreted my views which, in view of the advanced hour of our debate then, I had necessarily compressed. I had thought that the Committee would immediately have realised what I was after, but I was using "shorthand" for that particular reason.
LORD BEAUMONT OF WHITLEY: My Lords, I am grateful to the noble Earl. I am glad that we now have this absolutely right. I entirely take the point which the noble Earl the Leader of the House makes about overloading the tribunals. On the other hand, these are terrifying things—250,000 a year coming under the unfair dismissals appeal machinery—and the fact that 80 per cent. of them may be excluded does not mean that I particularly wish to make this exclusion. We have every right to ask the noble Lord, the Leader of the House, to say what would, for instance, be the result of making the exclusion eighteen months or a year. How much would one overload the machinery in that way? How does this 80 per cent. break down in lesser periods?
The Government have taken on the tremendous responsibility of putting this Bill forward. On the whole, we on these Benches think it is basically a constructive Bill, although not nearly so forward-looking as it should be. We also think
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that the Government should take the responsibility for the full results of what they are putting forward. In this case if they are really saying that to start with and, presumably, for the foreseeable future (although they have made reasonable pledges about reductions in these conditions in the future) they will not be able to cope with more than 20 per cent. of the cases which they themselves say will come under the unfair dismissal clause, we have a right to say to them that they must do better than this. This was our attitude on the Committee stage. Here I have to confess to the absolute nadir so far as I am concerned that we reached on that particular morning.
The Labour Front Benches moved an Amendment to do away with the exclusion, and the argument against overloading the tribunals was put forward by the noble Earl, Lord Jellicoe. At that moment I heard a discussion on the Labour Front Bench, when the noble Lord the Leader of the Opposition said. "Shall we go along with the Liberals?". At that moment we had also put forward exactly the same Amendment, which I must confess I did not move. I did not take the hint from the whisper on the Front Bench because I was so weak that I could not even get to my feet and say, "I beg to move the Amendment". We are now at a more reasonable hour of the night, and we have had time to digest the various discussions put forward on the Committee stage, and that is why we have put forward this Amendment again.
May I say one word to the Labour Party Front Bench about their next Amendment, No. 53? Whereas if our Amendment is defeated I advise my noble friends to support the Labour Party's Amendment, nevertheless I seriously think that unless we get a very good answer from the Conservative Front Bench our Amendment is the better one. In their Amendment No. 53 the Labour Party are setting forth an enormous number of problems to an Industrial Court or tribunal. It is better than nothing but (and I hope they will forgive me for the phrase) I regard this as a mucky Amendment. It is very vague indeed. If we are not supported, and if the Government do not give way to us, I would invite my noble friends to support the

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Labour Party's Amendment because we must have some move in this direction.
I am sorry if I have detained your Lordships over long on this matter, but I should like to pose this question again: what would be the result to this 80 per cent. that we are told about of cutting the 104 weeks by half? What would be the result of cutting it by a quarter? There is presumably some kind of curve of cases on the time scale and I should like more information about it. We have another stage in front of us, Third Reading. We should like more information than the Government have been able to produce, although I had every sympathy with them at 7.15 on that Friday morning. I beg to move.
9.50 p.m.
EARL JELLICOE: My Lords, I think that, with one possible exception, the shorthand answer on the two years which the noble Lord mentioned is this. I think he was being a little less than fair to your Lordships in putting it forward at 7 o'clock in the morning. I am not addicted to my own speeches, but I have just read the speech which I made on this Amendment on Committee stage, and it seemed to me everything a speech should be so far as clarity and cogency are concerned—I speak with my usual modesty but I realise we were debating this very early in the morning and it is right that we should come back to it. The noble Lord asked me a perfectly reasonable and pertinent question. The figure of 80 per cent. is one of the fruits of that independent research which we did—or rather which the last Government did, and we saw the fruits of that research. The estimate was that something like 80 per cent. of the anticipated case load of 250,000 might be excluded by the initial ceiling of 52 weeks. I am speaking in shorthand, but I think the noble Lord knows what I mean. My understanding is that if that ceiling were reduced to the one year it becomes under the noble Lord's Amendment, the estimate of 80 per cent. would fall to something like 70 per cent.
BARONESS WHITE: My Lords, the noble Lord said 52; did he mean 104?
EARL JELLICOE: Precisely; I meant 104. I was wrong by a factor of two—that was all. It is 80 per cent. at 104
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weeks, 70 per cent. at 52. I do not know what it is between 52 and 104, but I suspect that it must be something over 75 per cent. It seems to me from the shape of the curve that it must rise steeply in the first year. But if and when we come back to this matter I shall be glad to elaborate on this, and I think it might be helpful to noble Lords interested in this matter of the case load if I circulated the further figures on it. I think I could make these available. All I can do is to repeat what I said before, that the only reason why we wish to adhere to the 104 weeks is the purely practical one of case load.
The noble Lord referred to the assurance by my right honourable friend, which I was empowered—rather more; I was specifically asked—to give to your Lordships, and which the noble Lord described as reasonable. I think that it was rather more than reasonable, because I put it advisedly in the strongest possible terms, as my right honourable friend asked me to do so. If I may refer to it, I should like to do. I quote from Hansard of May 14, column 1497.
"I should like to make it very clear here and now that it is my right honourable friend's firm intention to institute a review of the operation of the unfair dismissals machinery at an early date. He wishes to do so as soon as it has developed far enough in order for us all to form a judgment on its ability to cope with a bigger through-put, and as soon as there is a possibility of invoking Clause 27 "—
that is now Clause 29—
"I can give your Lordships a very firm assurance indeed that my right honourable friend will not hesitate to do so,…"
My Lords, that was more than a reasonable assurance—it was, I suggest, a cast-iron and watertight assurance from my right honourable friend, and I am glad to repeat that assurance.
LORD DIAMOND: My Lords, is not the noble Earl getting into dangerous territory in talking about cast-iron and watertight assurances in this House?
EARL JELLICOE: My Lords, I would say "touché". I can only reply to the noble Lord that it was a deliberately mixed metaphor applicable to both dry land and the sea. My Lords, I should like to repeat that assurance because it was not lightly given and I was specifically asked by my right honourable friend

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to give it. I should like to repeat that in principle I have absolutely no objection to this Amendment. I, too, should like to see 104 become 52. I do not believe that there is anything sacrosanct about 52; I think it could well come down. I am certain that my right honourable friend would like to see the ceiling lowered, but there is the purely practical consideration of fears about the case-load which we anticipate. As the noble Lord said, this is a rather terrifying figure. I do not think we need take the figure as sacrosanct.
When we begin to operate the Bill we may find that our independent researches have thrown up a higher figure than we are likely to be faced with. In any case, it is my right honourable friend's intention, and the Government's intention, to extend the network of tribunals and their coverage as rapidly as posible. I would hope, as that machinery gets into operation, that their own throughput would be quicker. It is also our hope that the actual case-load will fall because of the voluntary procedures under a subsequent clause which will become more and more popular, and that, as a result, this will lighten the case load. If all these things do in fact come to pass, I am quite certain that my right honourable friend will use his powers under Clause 29(2) to reduce that ceiling as rapidly as possible.
Having said that, I would add that, for very much the same reasons as the last Government had in mind, I think it would be quite wrong for us, from all we know or all we can at the moment guess about the likely case-load, to impose a burden on the industrial tribunal machinery which might well break it at the outset. I suggest that your Lordships should be very careful indeed about accepting an Amendment with the principle of which I am entirely in agreement but which could have that result. My Lords, I cannot say any more than that. I am merely basing myself on such independent research as we have and upon a desire not to impose a greater burden on the machinery than I fear it might be able to bear. At the same time I am in full sympathy with the thought behind the noble Lord's Amendment, and I hope that he will not wish to press it. That is all I can say.
LORD BERNSTEIN: My Lords, it is rather sad that legislation should be based, even in one detail, on somebody's independent market research. I accept that market research has some place in modern life, but I still think that market research must be subject to the acid test that comes from a cold look by sensible and experienced people. I had hoped that the noble Earl was going to say that he was opposing the Amendment on grounds other than market research. You have an independent market research—independent of whom, I do not know, but we assume independent of the last Government and this Government—and on this basis a clause is introduced into the Bill which over a period of time could be very damaging to a great number of people.
10.1 p.m.
BARONESS WHITE: My Lords, I fully accept what my noble friend Lord Bernstein has said about not being utterly wedded to market research. But, even if we accept the report, if I understood the noble Earl aright, what he said was that 80 per cent. would be included if we had the limit of 104, and 70 per cent. would be included if we had the limit of 52. In other words, there is only 10 per cent. between these two. When we were discussing this matter on a Labour Party Amendment in the earlier stages we wanted to eliminate this provision altogether. But, again one sees the practical problems. It seemed to me, quite frankly, that the Amendment was a fair and sensible compromise. I was reinforced in that belief by what I understood to be the information given us by the noble Earl; namely, that if the first year was brought in—in other words, if there were no limits; you did not have 52 in substitution for 104—then one might have a very, very heavy case load. But the difference between 52 and 104 is of the order of only 10 per cent. This really is not quite the picture which the noble Earl painted for us.
It seems to me that the Liberal Amendment is a sensible one. I know we have a later Amendment which my noble friend may or may not move according to what happens to this one. Again, I do not know whether the noble Lord, Lord Beaumont of Whitley, is going to press his Amendment. If he were to do so I would certainly hope that

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my noble friends might support him, because, as I say, his Amendment seems to me quite a sensible compromise. The noble Earl has said there is no matter of principle in it; he accepts the principle. On the grounds of practicality, it seems to me that for that 10 per cent. we might come down on the Liberal side of the fence for once, because 10 per cent. is not going to make or break the machinery. It would be an extension of justice and we would then, for the time being at any rate, until the machinery had been running for some time, save the tribunals from the 70 per cent., which we are informed would be likely to arise if one had no limitation at all in the first year. In those circumstances, should the noble Lord, Lord Beaumont, wish to press his Amendment, as I say I hope my noble friends might be prepared to go with him.
LORD BEAUMONT OF WHITLEY: My Lords, I do not think I need to reply to the debate at length because the noble Baroness has made the real point which comes from those figures which the noble Earl, Lord Jellicoe, has given us. At one moment I felt hopeful that Lord Jellicoe was going to give way to us, so much did his argument appear to give credit to our arguments and so charming was his delivery. But it was not to be. He was adamant at the end.
I would make it quite clear that we on this side of the House do not underrate the problem. I am quite aware that if we reduce the case-load of cases from 80 per cent. to 70 per cent. we are actually putting up by 50 per cent. the number of cases which will be dealt with; I entirely take this point. If the independent research is right, the number will increase, presumably, from 50,000 to 75,000. But I still think that for the gain, possibly even for just the psychological gain which people will feel in security after a year, instead of security after two years—and the gap between one year and two years is not just a year, but is psychologically considerably more than that—it is worth reducing this. I hope that the Government, who are obviously not going to give way at this stage—
LORD DIAMOND: Why not?
LORD BEAUMONT OF WHITLEY: Maybe they will; I hope they will.
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However, I hope that the Government will take this away and think about it again. But since they have not given much thought to it at the moment I must ask your Lordships to decide, as a good prod to them to bring something back at Third Reading.
LORD DIAMOND: My Lords, I am sure the noble Lord, and indeed my noble friend, would much prefer the noble Earl to do what his natural liberal tendencies encourage him to do—namely, to begin by erring on the side of generosity. There are provisions for adjusting the matter, should it transpire that the administration argument was a solid one. What we are saying at the moment is that it does not appear to be a sufficiently solid argument to put against the other arguments, which are very substantial indeed.
As the noble Lord has made absolutely clear, it is not a question of only 52 weeks; it is a question not of degree but of kind when one comes to divide those two. All I say to the noble Earl, Lord Jellicoe is that he seems to me to be so anxious to meet what I hope I can say are the feelings of the House on this, that he has said he is prepared to think about it again. There are certain technical difficulties about thinking about too many things again, as we are now getting on in our consideration of the Bill. Would he not be willing to accept this Amendment to the Bill now, knowing that he if he errs on the side of generosity the matter can be brought under control almost, to quote Ovid (or was it Thucydides?) who said "at a stroke".
EARL JELLICOE: This is a purely practical point and I should like to be able to meet the noble Lord, Lord Beaumont, and the noble Lord, Lord Diamond, who have pressed me in the most agreeable way. But I should point out the practical considerations involved. It is quite true that it is a matter of simple mathematics to cut the 104 weeks by half; that, which we would all agree, would cut the anticipated case-load only by 10 per cent. But the noble Lord, Lord Beaumont, was quite right; with computer-like speed and accuracy he immediately realised that that would increase the anticipated case-load by something like 50 per cent. falling to be heard by the tribunal. However, the point I

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should like to dwell on is that 10 per cent. of 250,000 is 25,000; and 25,000 more cases would, so I am informed, require anything from 50 to 60 more tribunals with full time and legally qualified chairmen. That is my understanding and my best advice at the present time. I think that is a very exigent requirement indeed.
The noble Lord, Lord Diamond, has pressed me to exercise my usual liberal judgment on this matter—and I am quite happy to have the small "1" as a prefix to my Conservative views; but at the same time I should also like to have a little "p" attached to those views, which is the word "practical".
I really think if I had to form a snap judgment like this (which is what the noble Lords, Lord Beaumont and Lord Diamond, are asking me to do) I would
err—and here I am not speaking from my brief; I am exercising my own independent judgment—on the safe side, because I think it is important that the tribunal should make a good start and should not be overwhelmed at the beginning. Because I am being asked to exercise that judgment I must, with regret—because I am in great sympathy with everything that lies behind what the noble Lord,, opposite have been pressing me to do—say that I could not advise noble Lords to accept this Amendment if, perchance, the noble Lord, Lord Beaumont, insists on pressing it to a Division.
10.10 p.m.
On Question, Whether the said Amendment (No. 52) shall be agreed to?
Their Lordships divided: Contents, 20; Not-Contents, 62.

CONTENTS

Ardwick, L.

Champion, L.

Rusholme, L.

Beaumont of Whitley, L. [Teller.]

Delacourt-Smith, L.

St. Davids, V.

Diamond, L.

Shackleton, L.

Bernstein, L.

Garnsworthy, L.

Stow Hill, L.

Beswick, L.

Henley, L.

Wade, L. [Teller.]

Brockway, L.

Hoy, L.

White, Bs.

Byers, L.

Hughes, L.

Wynne-Jones, L.

NOT-CONTENTS

Aberdare, L.

Dundee, E.

Mowbray and Stourton, L.

Ailwyn, L.

Elliot of Harwood, Bs.

Nugent of Guildford, L.

Allerton, L.

Exeter, M.

Oakshott, L.

Balfour, E.

Falkland, V.

O'Neill of the Maine, L.

Belhaven and Stenton, L.

Ferrers, E.

Orr-Ewing, L.

Berkeley, Bs.

Goschen, V. [Teller.]

Rankeillour, L.

Bessborough, E.

Gray, L.

Ruthven of Freeland, Ly.

Brabazon of Tara, L.

Hailes, L.

St. Aldwyn, E.

Bradford, E.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

St. Helens, L.

Bridgeman, V.

St. Just, L.

Brooke of Ystradfellte, Bs.

Hatherton, L.

Sandford, L.

Buccleuch and Queensberry, D.

Jellicoe, E. (L. Privy Seal.)

Selkirk, E.

Carrington, L.

Kemsley, V.

Selsdon, L.

Conesford, L.

Kilmany, L.

Sinclair of Cleeve, L.

Craigavon, V.

Kinnoull, E.

Skelmersdale, L.

Craigmyle, L.

Latymer, L.

Terrington, L.

Crathorne, L.

Lauderdale, E.

Thomas, L.

Daventry, V.

Lothian, M.

Tweedsmuir, L.

De L'Isle, V.

Macleod of Borve, Bs.

Tweedsmuir of Belhelvie, Bs.

Denham, L. [Teller.]

Macpherson of Drumochter, L.

Wakefield of Kendal, L.

Drumalbyn, L.

Monck, V.

Windlesham, L.

Resolved in the negative, and Amendment disagreed to accordingly.

10.18 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 53:
Page 23, line 26, at end insert—
(" (2) For the purposes of sub-paragraph (a) of subsection (1) of this section, the Industrial Court or an Industrial tribunal before which proceedings are brought by an employee on a complaint that he has been unfairly dismissed from any employment may treat the employee as having been continuously employed for a period of not less than 104 weeks ending with the effective date of termination if in all the circumstances it seems to the Court or tribunal as the case may be, just and equitable so to do and the employee has been employed in that employment for riot less than 80 weeks whether continuously or otherwise.")
The noble Lord said: My Lords, I apologise for reverting on Report to an Amendment in similar terms which I moved on Committee, and I will, if I may, move this one quite shortly, and I will indicate the reason why I ask your Lordships' indulgence to look at it again on Report. What it purports to do is as follows. If an employee claims compensation on the basis that he has been unfairly dismissed, we have just been discussing a situation in which he has to show that he has been employed continuously for not less than 104 weeks up to the date of the termination of his employment. If one looks at Clause 150 of the Bill, one finds there set out how one is to determine whether employment has been continuous or not.
Clause 150 refers one to the Schedule to the Contracts of Employment Act 1963, and one is directed to answer the question whether employment has been continuous in accordance with the provisions of that Schedule, and any order there may be, which I think cannot have effect in this case, under Section 7 of that Act. Prima facie, without further examination, that might seem to be a satisfactory resolution of the position; if an employee comes before an industrial tribunal, and a question arises whether his employment has been continuous or not, one looks at the Schedule to the 1963 Act and one finds the answer.
The only difficulty is that the answer provided by that Schedule is not a very satisfactory one, for this reason. If I understand it correctly and it is contained in this enormous volume (which I
784
do not propose to read in full), if the employee, in the course of the period about which you are inquiring whether it was continuous employment or not, has taken part in a strike, if that strike has caused a cessation of work, even for a short time, his employment becomes discontinuous. Equally, if I understand the Schedule correctly, even if the strike has not resulted in an actual cessation of the employment, nevertheless if he has struck in breach of the terms of his employment—that is to say without giving the appropriate notice—that also results in a discontinuance of his employment.
There are other situations described in the Schedule which involve a discontinuance of the employment. However, for these purposes I think that is the most important one; namely, the one which consists in a cessation owing to a strike or, in the alternative, a strike in breach of the terms of a contract of employment. I submit that is not a really very satisfactory position in which to leave the matter. If an employee exercises his right to strike, particularly if he has given the due notice, then if there is a cessation that should not produce the result that he is not enabled to say that his employment has been continuous. What the Amendment purports to do is to give the tribunal before which the case comes, a discretion; the discretion of being able to say that, notwithstanding the fact that the employee could not show that his employment had been continuous for the necessary number of weeks, nevertheless if he had been in the employment of the particular employer for not less than 80 weeks, if it were just and equitable in all the circumstances the tribunal could treat him as if he had had continuous employment for the necessary period.
That is simply what the Amendment does. I suggest it to the House as being something that should form a permanent feature of Clause 28. That is to say, it should be applicable, whatever the period named in the clause is; whether it is 104 weeks, or something less, or something more. I say "something less, or something more" because under Clause 29 the Secretary of State has power either to increase it or decrease it. As I read that clause, he would not have the power

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to change Clause 150, or to change the Schedule to the 1963 Act, but he could always change the figures. Therefore, if there is a build-up of cases before the Court and I recognise the problem that was discussed on the last Amendment, and obviously it is a serious practical problem the Secretary of State could, under the provisions of Clause 29, either enlarge or abbreviate the 104 weeks, and equally enlarge or abbreviate the period of 80 weeks during which the employee must have been in the employ of that employer.
I submit that it is desirable in principle to give the tribunal some discretion, for example, in those strike cases; but there would be a number of other cases in which his discretion might have to be exercised despite the provisions of Schedule 1 to the 1963 Act. There might have been a difference of opinion between the worker and his employer; a dispute, friction, anything of the sort, which might have resulted in the employee having left his employment for a very short period of time in circumstances in which the tribunal could, and ought to, come to the conclusion that it would be just and equitable to overlook that break in the employment.
Otherwise, really unfortunate positions might result. A man might have been in employment for 20 years, and if some break of that sort happens in the last 104 weeks he cannot claim his compensation for unfair dismissal under Clause 24. That would be a very unfair situation in which to leave an employee, and I hope the House will say that, whatever figure is fixed upon—whether it be 104 weeks or 52 weeks—by the Secretary of State hereafter under the provisions of Clause 29, there should be as a permanent feature in Clause 28 this discretion which I seek to outline in this Amendment. My Lords, I beg to move.
10.26 p.m.
EARL JELLICOE: My Lords, the noble Lord has expressed his concern about the position of certain employees who have worked for an employer over a 104-week period, but who have suffered breaks in their employment for one reason or another. I understand his concern about
786
this matter, and I should like to explain how, in my view, the Bill makes reasonable provision for those cases most likely to excite the sympathy of your Lordships which are likely to fall within the provisions of the Bill as drafted. The noble Lord has directed our attention to Clause 150 and, although this matter was ventilated in Committee, I should like to dwell on two points in reply.
In the first place—and the noble Lord did not in any way gloss over this—I should like to draw attention to the fact that subsection (2) of Clause 150 provides that
"a person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous."
Thus, where an employee who has suffered a very short break in his employment during the 104-week period makes a complaint of unfair dismissal, his employment will normally be held to have been continuous unless his ex-employer successfully challenges his eligibility to claim. Secondly and, again, the noble Lord did not gloss over this; he referred to the large volume beside him which I must confess I have not read in full—the clause provides that the provisions of Schedule 1 to the Contracts of Employment Act 1963 shall apply for the purposes of this Bill in determining the period for which the employee may be held to have been continuously employed. That Schedule incorporates detailed provisions for this purpose.
I do not wish to weary the House, any more than did the noble Lord, Lord Stow Hill, with an overlong recital of that. But, putting it as briefly as I can, the Schedule describes various circumstances in which a contract of employment will be regarded as continuing; for example, where an employee has a continuous contract of employment involving employment for 21 hours a week and, in some cases, where he works for less than 21 hours. It also instances spells of absence through sickness, temporary lay-offs and so on. These do not break continuity for so long as the contract continues. This position, as I understand it, is totally safeguarded under the Bill because of the applicability of Schedule 1.
My Lords, we consider that Schedule 1 to the Contracts of Employment Act

787
makes reasonable and adequate provision to safeguard the continuity of the employment of employees in all reasonable circumstances, and that it provides a reasonable basis for calculating continuity in relation to the clause which we are discussing, Clause 28(a). Although I have listened carefully to the noble Lord, Lord Stow Hill, I cannot in the present state of our discussion really advise your Lordships to accept this Amendment. It would, again, have the effect—it might be fairly marginal in this case; I am not quite certain—of reducing the qualifying period and thereby helping to overload the tribunals. But I believe—and this is the main burden of my argument that Schedule 1 to the Contracts of Employment Act, which is specifically made to apply by Clause 150, provides a very reasonable safeguard for almost all the situations which are likely to confront the tribunals.
LORD STOW HILL: My Lords, I do not want to prolong the discussion, hut, with very great respect to the noble Earl, I submit that the Schedule is really not satisfactory. The noble Earl referred to cessation of work. Subsection (3) of Clause 5 specifically says that that shall not apply to a temporary cessation of work on account of a strike in which an employee takes part. That is one obvious fallacy. It does not apply to the case where an employee and his employer have a difference and the employee walks out for a day, or something of that sort.
The noble Earl also referred to subsection (2) of Clause 150, which I certainly had in mind. That says:
"For the purposes of any proceedings under this Act a person's employment during any period shall, unless the contrary is shown, be presumed to have been continuous."
I should have thought that that could have practically no effect. An employee goes before the tribunal, and the first question he is asked is, "Have you worked continuously for 104 weeks?" and he says, "Six months ago I had a bit of a row and I walked out". He is asked, "How long were you out?" and he says, "I was out for half a day, then I thought better of it and I came back". That immediately destroys the presumption. The presumption does not work
788
there because the plain evidence before the tribunal is that there was a cessation, that there was an interruption. Therefore, the presumption has no effect.
I should have thought that the presumption provision might just as well be taken out of the Bill. All it means is that if neither side knows, the presumption is that work has been continuous. If the employee has a very bad lapse of memory and cannot remember, then the presumption is in his favour. But it really has no effect. However, the Government have obviously considered this and have obviously taken a view against it. I would be grateful if the noble Earl could give the matter some further thought because I think that justice requires something of this sort; but, obviously, there would be no advantage in asking your Lordships to divide upon it in view of the stance that the Government have taken. Therefore, unless any other noble Lord wishes to contribute to the debate, I think the best course I can adopt is to ask your Lordships' permission to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 32 [Revocation of exclusion under section 31]:
10.35 p.m.
EARL JELLICOE EARL JELLICOE moved Amendment No. 54:
Page 25, line 26, after ("effect") insert ("and shall have an extended time for presenting a complaint under Part VI of this Act in respect of a dismissal where the effective date of termination falls within that period").
The noble Earl said: My Lords, I should like to suggest that it might be for the convenience of your Lordships to take this Amendment and Amendment No. 55, which is linked with it, together. I should like to start the few words I am going to say on these two Amendments with an apology.
These Amendments are, in fact, consequential upon Amendments being proposed to paragraph 5 of Schedule 6 of the Bill. Those Amendments are not yet before your Lordships' House. I realise that this is rather unsatisfactory and I should like straightforwardly to say that I am sorry that this is the position. But as noble Lords know, for one reason

789
or another we had a week less between the Committee stage and the Report stage and this has not made things easy; there have been practical difficulties involved. I should like to say that the blame rests on me and not upon the very hard pressed officials.
Having said that, I must give the House a preview of what those Amendments will be because otherwise these Amendments are meaningless. I think that they are very virtuous. I do not think that noble Lords opposite will dissent from their purport. The Amendments which we shall be proposing to paragraph 5 of Schedule 6 will provide that, instead of having a broad discretion to extend the time limit for making complaints under Clause 106 "for special reasons", the tribunals will have to be satisfied that in the circumstances it was not practicable for the complaint to be presented before the end of the four-week period. Therefore, the issue wil be confined simply to one of practicalities. Regulations made under paragraph 5 of the Schedule will be made subject to any order made by the Industrial Court under Clause 32.
The Amendments to Clause 32 which we are now discussing are designed to accord by providing that an order under that clause may direct that employees dismissed during the transitional period prior to the date of the order shall have an extension of the time limit for making a complaint under Clause 106 and that the tribunals shall comply with such directions. These Amendments, therefore, linked with the Amendments which will be shortly before the House (if they are not so already), ensure that the employee's right of appeal against unfair dismissal is fully preserved when an exempted voluntary procedure breaks down and ceases to provide a satisfactory alternative to the statutory machinery. I am sure that this is something which will commend itself to noble Lords on all sides of the House. I think it is clearly to the advantage of the employee who is likely to be affected in this way. I should like to commend these two linked Amendments to the House, coupled with an apology that they have not been made more intelligible by the Amendments which they are designed to bite on being also provided at the same time. I beg to move.
LORD DELACOURT-SMITH: My Lords, we are grateful to the noble Earl for explaining these Amendments, Needless to say, we fully accept the explanation that lie has offered of the rather unusual circumstances in which these Amendments appear. We accept the intention behind them and we should not wish to quarrel with it; although we shall want to look at the provisions of the Amendments to the Schedule when they are before the House.
EARL JELLICOE: My Lords, may I say that if, when noble Lords opposite have the substantive Amendments before them, they wish to quarrel with these Amendments, I should not in any way hold their acceptance at this stage against them.
On Question, Amendment agreed to.
EARL JELLICOE: My Lords, I beg to move Amendment No. 55 formally.
Amendment moved—
Page 25, line 36, leave out from beginning to ("shall") in line 39 and insert ("a complaint to which those provisions apply")—(Earl Jellicoe.)
On Question, Amendment agreed to.
Clause 33 [Pressure on employer to infringe rights of workers]:
THE LORD CHANCELLOR: My Lords, this Amendment is consequential on Amendment No. 48. I beg to move Amendment No. 56.
Amendment moved—
Page 26, line 1, leave out ("good reason") and insert ("reason fulfilling the requirements of section 24(1)(b) of this Act").—(The Lord Chancellor.)
On Question, Amendment agreed to.
LORD GARDINER: My Lords, I beg to move Amendment No. 57.
Amendment moved—
Page 26, line 21, at beginning insert ("knowingly").—(Lord Gardiner.)
On Question, Amendment agreed to.
LORD GARDINER: My Lords, I beg to move Amendment No. 58.
Amendment moved—
Page 26, line 28, at beginning insert ("knowingly").—(Lord Gardiner.)
On Question, Amendment agreed to.
LORD GARDINER: My Lords, I beg to move Amendment No. 58A.
Amendment moved—
Page 26, line 30, at end insert ("knowingly").—(Lord Gardiner.)
On Question, Amendment agreed to.
LORD GARDINER: My Lords, I beg to move Amendment No. 59.
Amendment moved—
Page 26, line 34, at beginning insert (" knowingly ").—(Lord Gardiner.)
On Question, Amendment agreed to.
LORD GARDINER: My Lords, I beg to move Amendment No. 60.
Amendment moved—
Page 26, line 37, at beginning insert (" knowingly ").—(Lord Gardiner.)
On Question, Amendment agreed to.