§ 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 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
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. 650 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 651 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 652 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 653 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 theprofessionor 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 unlessthe 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 654 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 655 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- 656 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 657 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. 658 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 659 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- 660 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 661 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 662 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 663 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 664 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. 665 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 666 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 667 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- 668 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- 670 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. 671 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 672 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. 673 What the noble Lord, Lord Drumalbyn, said on June 29, at col. 310 of the OFFICIAL REPORT, wasI 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, 87.675
|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.|
|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 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
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 677 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.678
§ 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 679 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. 680 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 681 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 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 683 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 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.
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 684 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 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;
§ (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 685 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- 686 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 687 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 688 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 689 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 690 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 691 —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 692 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 693 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 694 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. 695 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 696 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 697 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. 698 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 699 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. 700 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 701 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- 702 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. 703 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
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- 704 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. 705 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 706 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 707 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 708 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 709 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, 87.713
|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.|
|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) 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.
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.
§ 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,)
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 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.
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.
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, 83.729
|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.|
|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.
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.