Lords Sitting of 6 July 1971

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

ROAD BUILDING: USE OF WASTE MATERIAL
LORD GARNSWORTHY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government when they expect the Working Party jointly appointed by the Ministry of Transport and the Ministry of Housing and Local Government "to consider what further encouragement can be given to use waste as 'fill' to road building" will report.]
THE PARLIAMENTARY UNDER-SECRETARY OF STATE, DEPARTMENT OF THE ENVIRONMENT (LORD SANDFORD): My Lords, the report of the Working Party has been received and is being considered. A statement will be made as soon as we are ready.
LORD GARNSWORTHY: My Lords, while thanking the noble Lord for that Answer, may I direct his attention to the fact that on February 15 his noble friend Lord Mowbray and Stourton stated that the Working Party had completed their recommendations and that they hoped to complete the task in April, or earlier if posible? May I ask whether the report, when published, will be a full report or whether it will be limited to recommendations?
LORD SANDFORD: No, my Lords, it will not be a full report, because the report itself contains a number of items of information given in confidence; but the main recommendations will be published.
THE EARL OF LAUDERDALE: My Lords, can the noble Lord tell us whether the report will extend to the question of
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land reclamation and pipe-lining of waste, in which, as he knows, your Lordships' House has shown an interest?
LORD SANDFORD: No, my Lords, it will not deal with either of those topics in full, but the latter enters into consideration.
LORD NUGENT OF GUILDFORD: My Lords, is my noble friend aware that there is a major problem for gravel working, especially in the Home Counties in South-East England, where the demands for future construction work are very heavy? Is he aware that these waste products could help satisfy part of that demand? Is my noble friend further aware that it is most desirable that progress should be made with this general study in order to see how these waste products could be used?
LORD SANDFORD: Yes, my Lords. My right honourable friend is fully aware of these wider considerations, and the Statement that will be made on the Working Party report, which is rather narrow and technical, will have them very much in mind.
LORD GARNSWORTHY: My Lords, may I ask whether the noble Lord will do his utmost to ensure that this matter is dealt with expeditiously? Every day that passes means lost opportunities for using this "fill" for road building purposes.
LORD SANDFORD: Yes, by Lods, but it is just as important to get the answer right.
THE EARL OF LAUDERDALE: My Lords, will my noble friend tell us whether there is any chance of getting this report before the Recess, even though that seems likely to be foreshortened by other events?
LORD SANDFORD: No, my Lords; it is not a question of publishing the report; it is a question of making a statement incorporating the recommendations and setting the report in a wider context.
LORD SHACKLETON: My Lords, may I ask whether the noble Lord understood his noble friend's point about the foreshortening of Parliament before the Recess?
LORD SANDFORD: No, my Lords, I certainly did not get that point.
A NOBLE LORD: The noble Lord has not got it now.
LORD SANDFORD: No, my Lords: I have not got it now.

VIETNAM: AMERICAN POLICY AND BRITISH SUPPORT
2.40 p.m.
LORD MILFORD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether, having regard to the disclosures in America that the basis on which the United States staged armed attack against North Vietnam was greatly misrepresented to the American, British and the world public they will now withdraw their support hitherto given to the American military activity in Vietnam.]
THE PARLIAMENTARY UNDERSECRETARY OF STATE, FOREIGN AND COMMONWEALTH OFFICE (THE MARQUESS OF LOTHIAN): My Lords, President Nixon has made it abundantly clear on numerous occasions that his prime aim is to secure a negotiated settlement of the Vietnam conflict. While this remains American policy, it will continue to have the support of Her Majesty's Government.
LORD MILFORD: My Lords, while thanking the noble Lord for that Answer, may I ask whether he is aware that the disclosures in America have widened the credibility gap of the Front Bench Ministers in this country as well? To clear the air and to give the truth to the British people, would Her Majesty's Government now consent to publish all communications between the British and American Governments relating to Vietnam prior to the declaration by our then Prime Minister and Foreign Secretary on August 6, 1964, in which they indicated their full approval of American activities in Vietnam?
THE MARQUESS OF LOTHIAN: No, my Lords, I do not think I could agree to that course of action at all; neither do I think it serves any useful purpose in this House to discuss what may or may not have happened under a previous
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American Administration. What Government policy is, and what I feel sure will have the assent of the whole House, is to continue to seek ways of promoting a peaceful solution to this problem.
LORD SEGAL: My Lords, can the noble Marquess instead give an assurance that Her Majesty's Government will continue their support of American humanitarian activities in Vietnam, especially since the closure of the British paediatric unit in Saigon? Can the noble Marquess say, in particular, what projects they now intend to support?
THE MARQUESS OF LOTHIAN: My Lords, I think that really is a different Question, but I can give in general the assurance for which the noble Lord asks.
LORD BROCKWAY: My Lords, does the Minister really think that the first Answer which he gave is going to satisfy this House?
SEVERAL NOBLE LORDS: Yes!
LORD BROCKWAY: My Lords, is it not the case that there is ground for reconsidering the policy of the Government? Have not the Pentagon papers proved that even Presidents of America were misled; and, if they were misled, that there was some excuse for misleading Governments in this country? Would Her Majesty's Government look at these issues in a new light, and at least seek to do what Mr. Harold Wilson did; that is, to modify American policy in its attack on North Vietnam by supporting the present policies for a cease fire; for a withdrawal of the American armies release of prisoners, and for a coalition Government which at last gives hope of peace?
LORD STAMP: My Lords, would not this be a fitting occasion to acknowledge once again the great debt of gratitude that the whole Free World owes to the United States for the vast contribution it is making to defence against Communist expansion and aggression? Furthermore, would it not be accepted that in intervening in Vietnam to try to ensure the right of appeal to decide its own destiny and form of Government—a right only recently so cruelly violated in Czechoslovakia—the United States has acted basically from idealistic and

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thoroughly honourable motives? Again, would it not be—
SEVERAL NOBLE LORDS: Order!
THE LORD PRIVY SEAL (EARL JELLICOE): My Lords, I think that the noble Lord—I am not coming down on either side on the Question—is trespassing a little on the right of noble Lords to put very full supplementary questions.
BARONESS STOCKS: My Lords, can the noble Lord throw any light on the precise meaning of the word "support"? Does it imply any military, financial or air support; or does it merely imply a sort of general benevolence to what the Americans are doing?
THE MARQUESS OF LOTHIAN: No, my Lords; Her Majesty's Government support President Nixon's initiative to try to bring this dreadful conflict to an end by a negotiated settlement.
LORD BROCKWAY: My Lords, in view of the fact that I put a supplementary question to the noble Lord which was rather surprisingly interrupted by another supplementary question, may I ask the Minister whether I may have an answer to my question?
THE MARQUESS OF LOTHIAN: My Lords, I must say that I have been rather overwhelmed by the questions up to date. If the noble Lord, Lord Brockway, would like to repeat his question I will endeavour to answer it.
LORD BROCKWAY: My Lords, I should love to do so.
EARL JELLICOE: My Lords, may I ask the noble Lord, Lord Brockway, to repeat his question as briefly as possible?
LORD BROCKWAY: As usual, my Lords, I was just going to say that I will put it very briefly. In view of the fact that the Pentagon papers show that the Presidents of America were misled is there not some reason for reconsidering the attitude of British Governments whose Prime Ministers might easily also have been misled; and would the Government support the present activities to
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bring about an end to the war in Vietnam?
THE MARQUESS OF LOTHIAN: My Lords, we are talking now of events which happened some years ago. What I was trying to say in my Answer was that at the moment our policy is to support President Nixon's initiative on these matters. It is true that Her Majesty's Government have, in general, expressed their concern about the publication of inter-Governmental confidential matters; but I feel, and I hope the House will agree, that the best way this country can help to achieve what I know we all wish to achieve—which is peace in Vietnam—is by supporting the President in his initiative for a negotiated settlement.
LORD CONESFORD: My Lords, can the Minister say when the Kremlin papers are going to be published?
LORD PARGITER: My Lords, is the Minister aware that a recent report has been published indicating that the Americans disapprove of the Geneva settlement and that many of their actions have flowed from that? Would the Minister care to comment on that and on whether or not it is likely to be true?
THE MARQUESS OF LOTHIAN: No, my Lords, I am afraid that I cannot comment on that report.
LORD MILFORD: My Lords, may I ask when the present Government are going to face this credibility gap? They will not allow the British people to have the historical truth.
LORD CONESFORD: My Lords, since when have the Communists been interested in truth?
LORD HANKEY: My Lords, would the Government agree that the publication of the Pentagon documents have certainly underlined the wisdom of the very cautious and reserved attitude which successive British Governments have adopted towards this controversial war?
THE MARQUESS OF LOTHIAN: My Lords, I thank my noble friend for his comments.

A.1 ROAD AND BY-PASSING OF BERWICK-ON-TWEED
LORD KILMANY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they are aware that the proposed exclusion of Berwick-on-Tweed from the 84 historic towns scheduled to have bypass roads before the 1980s threatens maintenance of the A.1 road between Edinburgh and London as the main route between England and Scotland.]
LORD SANDFORD: My Lords, the M.6, now complete to Carlisle, provides the main trunk route between England and Scotland, but the A.1 remains the only all-weather trunk route on the East Coast linking Edinburgh with Newcastle. My right honourable friend the Secretary of State has every intention of maintaining it at an appropriate standard for this purpose. A by-pass is not the solution to Berwick's traffic problems since 75 per cent. of traffic using the A.1 there has business in the town. Furthermore, much of the burden of the heavy long-distance traffic is taken away from Berwick for most of the time and throughout the summer by the two alternative routes, the A.696/A.68 and the A.697 via Carter Bar and Wooler respectively.
LORD KILMANY: My Lords, I thank my noble friend for that considerable reply. May I ask two supplementary questions arising out of it? First, when did my noble friend last drive along the road from Alnwick to Edinburgh?—because it would be reassuring for the House to know that he realises the extent to which that particular stretch of road falls short of what the A.1 Edinburgh to London road should be. Secondly, may I ask whether my noble friend appreciates the full significance of allowing all the road transport priorities—it may be rail, too, but this Question relates to the
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road—to switch from the East to the West; and does he realise the harm which this is bound to do to North-East England and South-East Scotland?
LORD SANDFORD: My Lords, the answer to the first of my noble friend's supplementary questions is: last summer, as far as Berwick. Beyond that point the environment ceases to be my particular responsibility. But I have, much more recently, had some considerable discussion with the divisional road engineer about the whole of this network. As to the last part of my noble friend's question, the fact that the M.6 is regarded as the main trunk road between England and Scotland does not in itself prevent traffic from choosing whichever route between England and Scotland is most convenient for its purpose.
LORD WYNNE-JONES: My Lords, is the noble Lord aware that in the northerly part of Northumberland, the continuation of viable villages depends very much upon making the A.1 a really satisfactory road?
LORD SANDFORD: Yes, my Lords; and the noble Lord will know that for those reasons Morpeth and Alnwick have been by-passed and only a fortnight ago Seaton Burn was by-passed.
LORD FERRIER: My Lords, as Alnwick and Dunbar have been by-passed, would my noble friend not agree that, if it was worth while to by-pass Dunbar, since Berwick is a more important centre of population such facilities might well be considered there as well?
LORD SANDFORD: Yes, my Lords, I can confirm that they are being considered with the greatest possible care. But the greater part of the problem—three quarters of it—is that of dealing with traffic which goes to Berwick because it has business there. The matter formed the subject of proposals put forward by the divisional road engineer, which were the subject of a public inquiry some months ago. Those particular proposals were rejected by the inspector who held the inquiry, but further consideration is continuing.

INDUSTRIAL RELATIONS BILL
2.52 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.
Clause 33 [Pressure on employer to infringe rights of workers]:
LORD STOW HILL LORD STOW HILL moved Amendment No. 60A:
Page 26, line 39, at end insert—
("(4) It shall be an unfair industrial practice for any employer to exercise pressure upon any workers in his employment whether before or in the course of any strike or irregular industrial action short of a strike in which they may be participating for the purpose of inducing them to disobey or disregard any decisions duly arrived at in accordance with its rules by or on behalf of any organisation of workers of which they may be members relating to such strike or irregular industrial action short of a strike or for the purpose of inducing them to terminate their membership of such organisation of workers or to exercise pressure upon them by reason of their having so participated.")
The noble Lord said: My Lords, the purpose of this Amendment is to contribute towards the establishment of orderly industrial relations and markedly to discourage disorderly, unofficial, wildcat action. It makes it an unfair industrial practice for an employer to exercise pressure upon workers engaged in a strike or other industrial action, or about to do so, or who have engaged in such action, in order to penalise them by so doing and in particular exercising pressure to discourage workers from acting in accordance with the recognised decisions and procedures of the union to which they may belong.
When a major union—I have in mind especially the National Union of Mine. workers, to which reference has been made in the course of our debates—has presented a claim and negotiations have taken place and these negotiations break down, in accordance with the constitution and rules of the union, before a decision is taken centrally by the Executive Council, a ballot takes place and a two-thirds majority is requisite in order to justify
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the taking of industrial action. Other unions have other procedures, which differ as much as the rule books differ.
It is the experience of those much more qualified on these matters than I that it is utterly discouraging to the ordinary union leadership when employers, while the union is trying to go through its procedures—perhaps exercising moderation even though committed to support strike action, during a period of time when after all feeling might be running high—take it upon themselves to embark on any course of action which might result in pressure being brought on members of the union to disregard union procedure and decisions which might be properly arrived at under the terms of union procedure. I think it likely that my noble friends who have been more closely involved with this kind of problem may be able to amplify what I am saying and cite examples, but in principle there is a case for a provision of this kind in the Bill.
An Amendment of this sort conduces substantially to fortifying the regularised proceedings of well-conducted unions. Without such an Amendment, there is much more room for the wild and discontented personality who seeks to subvert the ordinary procedures and induce unconstitutional action on the part of members of the union. That is the general object of the Amendment.
The words employed are "to exercise pressure". I can understand it being said that these words should be more particularised, and that we should know precisely what we are putting into the Bill before accepting an Amendment on these terms. The object of the Amendment is not to include mere peaceable discussion and persuasion, but to limit the operation of the clause to something rather more insistent and coherent and which continues on a more concerted basis. I think that "pressure" is an expression which can apply in its ordinary meaning in the English language. It means some urgent and insistent action, designed to induce members of a union to refuse to conform to its regular procedure. That is what the Amendment would do, and I ask your Lordships to say that, even if the drafting is open to criticism, the Amendment in principle should be accepted and in an improved form should be included in the final version of the Bill. I beg to move.
LORD BROWN: My Lords, I am a little uneasy about this Amendment. I note that the noble Lord, Lord Stow Hill, defined pressure as "urgent and insistent action", and I wonder whether it would be so defined by a court. My uneasiness arises from the fact that it might be construed simply to mean argument, and if an employer is to be prohibited from arguing against his people going on official strike, that is something which has to be considered seriously.
I want to make a particular point in relation to this Amendment. I can well remember that, on a number of occasions when the engineering employers were meeting the Amalgamated Engineering Union and others to begin negotiations on a pay increase, it became something of a practice for those unions to call a two-day strike on the day the negotiations started, and to parade up and down outside the premises in Tothill Street, where they met, making a lot of threatening noises. I conceived this as being an extraordinarily stupid thing to do. Proper union action in support of wage claims is all very well, but to threaten from the start of negotiations seemed to me to be silly. I conceived it as my duty to put the facts to those employed in the company that I used to manage. In doing so, I sometimes did it by word of mouth, sometimes by direct confrontation in the canteen and by other means. It seemed to me to be a proper duty of a chief executive to speak frontally with the people involved, and to tell them what my attitude was. We made a practice of pressing our attitude in this way, by speaking directly to the rank and file, instead of leaving it to others to do it for us through representative channels. I have advocated this approach for a long time, and I think a lot of silly things would be stopped if factory managers and chief executives had the courage to face their people and speak to them in that way.
My anxiety about this Amendment is that if it is construed differently from the way that my noble friend put it, it might inhibit that sort of activity. I may say that in America (I cannot quote the law) if an employer acts as I acted in the circumstances that I have outlined, he can be brought before a tribunal and fined. I know of employers who were heavily fined, but who were simply argu
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ing that they did not think a strike was a proper thing. You cannot limit the freedom of managers to do what is in essence their duty, and if this Amendment were so to do, I should be very distressed about it.
3.3 p.m.
LORD DRUMALBYN: My Lords, the Government do not think that this Amendment could be recommended to your Lordships, for the following reasons. It seems to me that the object of the Amendment is to achieve two quite different objectives. On the one hand, it seeks to prevent an employer from offering an inducement to his workers to terminate their union membership or to discontinue their trade union activities. On the other hand, it goes further than that, and seeks to prevent the employer, as the noble Lord, Lord Brown, has just said, from bringing any pressure to bear upon his workers to discontinue striking, or even before striking: because the Amendment says, "before or in the course of a strike"; that is, to prevent an employer from exercising by argument what one would have thought was his right to ensure that the workers are properly informed of the issues at stake. In so doing, it would prevent the employer from bringing any pressure to bear upon his workers to discontinue striking, or even to start striking, where this would be contrary to union instructions.
So far as the first objective is concerned, I think the point is fully met by Amendment No. 13, to which the House agreed, on the first day's proceedings on Report stage. Your Lordships will recall that that Amendment made it an unfair industrial practice for an employer to offer any inducement to those of his workers who were prepared to forgo their rights under Clause 5 while offering no such inducement to those who wished to exercise those rights. There is, I think, no difference of view between the Government and the Opposition on this point. So much, if not all, of the latter part of the Amendment that we are now considering seems, therefore, to be unnecessary.
What we cannot accept in this Amendment is the implication that any form of pressure exerted upon workers by employers to persuade those workers to discontinue strike action should be regarded as unfair. Although the Amendment

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refers generally to the exercise of pressure on workers to desist from action which is taken in accordance with,
" decisions duly arrived at in accordance with its rules by or on behalf of any organisation of workers,"
it is clear that it is meant to prevent any form of pressure being brought to bear on strikers to return to work. It sometimes happens that during the course of a strike an employer improves upon a previous offer, and promises that the improved terms and conditions will be made available to those who return to work by a given date. This, in the view of the Government—and I doubt whether noble Lords opposite would challenge that view—is a perfectly legitimate tactic, which should he available to an employer to persuade his workers to return to work. If, however, a number of workers were persuaded by the employer's improved offer to return to work contrary to union instructions, the employer would be held to have engaged in an unfair industrial practice under the terms of this Amendment. I think that is going much too far, and I cannot recommend your Lordships to accept the Amendment.
LORD SLATER: My Lords, is the noble Lord saying that the responsibility does not rest with the trade union which has called the official strike on behalf of the membership, and that the door should be left open for the employer to convert the employees to the view that the action that has been taken by the trade union leaders is wrong? I do not know what would happen inside the trade unions of this country in such circumstances. This would result in a pond of chaos and, instead of having a happy relationship between the employers and the trade unions, there would be a negative attitude which could not make for improved relations in industry.
LORD DELACOURT-SMITH: My Lords, I was surprised to hear the speech of the noble Lord, Lord Drumalbyn—as surprised, I think, as was my noble friend Lord Slater. It was certainly a speech which we shall want to study carefully in Hansard. I must say that it made upon me the impression that there was no great desire to hold the balance even between employers and trade unions in the critical kind of situation with which this Amendment seeks to deal. I think
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the noble Lord said that the Government could not accept that any action by an employer was unfair in this situation. Did I understand him to use that form of words?
LORD DRUMALBYN: My Lords, what I said, I think, was that at any rate it was not unfair for an employer to exercise pressure in this kind of situation. To refer to "any action" is perhaps going a little far.
LORD DELACOURT-SMITH: Any form of pressure, then? It was not unfair to use any form of pressure? I am not quite sure what the noble Lord, Lord Drumalbyn, meant by that, whether he meant that all forms of pressure were fair in the judgment of the Government, or that it was not right to say that all forms of action were unfair; that there were some which, in the Government's view, could be regarded as fair and some which could be regarded as unfair. I certainly thought that there was an important ambiguity in what the noble Lord said on this matter.
Further, I was not quite sure whether the noble Lord was saying that it was a fair and even a laudable thing to seek to induce members of a trade union who were on strike to return to work in disregard of the decisions of their trade union. I take the point that in the course of a dispute an employer may suggest that certain terms are available up to a given date, and that if the trade union collectively, through its appropriate machinery, decides to accept the offer by that date, then those are the terms upon which a settlement will be made. That is a very different thing, my Lords, from the offer being open to workers on an individual basis. Here again I was not absolutely certain to which of those courses the noble Lord was referring. It is this sort of thing on which I should like to have the opportunity of seeing his speech in Hansard and seeing precisely what standpoint he was adopting.
But, my Lords, quite apart from that, I was surprised at the reception which the noble Lord gave to the Amendment. I am no lawyer, and no doubt my noble friend, Lord Stow Hill, will comment on this point; but I should have been surprised if reasoned argument by an employer of the kind to which my noble

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friend Lord Brown referred was in fact pressure as it is normally understood where the word "pressure" is normally construed as covering such action. There are, as we know, other forms of action, other kinds of courses of action, which an employer may take up, or express an intention of taking up, and which go far beyond reasoned argument and constitute pressure—and very clear pressure, in anybody's understanding of the term. It was at that type of action that my noble friends were aiming in this Amendment.
It could, I suppose, be an argument by supporters of the Government that one of the intentions of this elaborate Bill was to take some of the heat out of industrial relations, in the sense that it was a part of the intention of the Bill (whether the Bill will achieve this intention or not is of course quite another matter) to substitute various forms of legal proceeding for the kinds of pressure which the two sides of industry normally exert upon each other: economic pressure by the employer, on the one side, and collective pressure by the trade unionists on the other. If that is the intention, or one of the intentions, of the Bill, and if it is further intended that the occasions upon which workers may collectively exert their pressure by withdrawing their labour or undertaking some other kind of industrial action, the occasions upon which they may legitimately do so are to be much more closely defined and more limited than has been the case in the past. If indeed legitimate industrial action is to be open to a much smaller number of channels, it is surely particularly important that when those channels are used, there should be, under the law as it stands, a reasonable equality between the two sides and any action which can be taken to reduce the intensity of feeling and to minimise the conflict should be taken.
My Lords, surely this Amendment fits very well into that pattern. As I say, whether the Bill will in general achieve this pattern and these objectives, is another matter. If it is to achieve them, surely a provision of this sort would have a proper place, for few things, surely, could be more inflammatory and, in the long run, more damaging to industrial relations, as the Government in their better moments conceive them, than that at a critical time in a dispute the em
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ployer should use pressure—not argument, but pressure—to try to secure a situation in which individual workers disregard the decisions that have been collectively reached through rules which, under the Government's scheme, will have been approved by the registrar and seek to get a return to work, or a partial return to work, or a disregard in some way or other of the decisions which the union has reached that there should be a threat of some kind of action.
It may be that the Government do not find the wording of this Amendment perfect. Governments rarely find the wording of Amendments from Oppositions perfect, but I had hoped that the noble Lord might have adopted a more sympathetic approach than he has adopted and indicated a willingness to find a way to meet the points of substance raised by my noble friend.
LORD DRUMALBYN: My Lords, by leave of the House, may I reply to what has been said? I do not think that the noble Lord, Lord Delacourt-Smith, took the first point I made, that the rights in Clause 5 may not be interfered with by the employer. That would mean that pressure, as I understand it, to terminate one's membership and any inducement—because this is one of the forms which pressure could take, as I think the noble Lord will agree—was covered by the Amendment reported in col. 274 of our first day's Sitting on Report. So I think we have gone some way already to meet the point which the noble Lord had in mind. This was as a result of pressure by the noble Lord himself at an earlier stage for us to accept the point.
This shows the difficulty that we are in here. It really is difficult to understand what is in noble Lords' minds on this matter. Despite what the noble Lord said, I do not think he really covered everything in the Amendment. I find it difficult to see why the employer should not be put in a position to do everything he can to prevent having a damaging strike. When the Amendment says:
" It shall be an unfair industrial practice for any employer to exercise pressure upon any workers in his employment…before…any strike or irregular industrial action short of a strike…"
That seems to be asking something quite impossible, which would be quite wrong

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and unjust bearing in mind the tremendous harm that can be done to an employer in circumstances of this kind.
I think noble Lords would agree with that. But so far as what happens during a strike is concerned, one knows that in cases of this kind after a strike has gone on for too long very often the workers begin to feel that it should not continue and, as the wording goes, they drift back to work. What the noble Lord is suggesting is that no inducement of any kind should be offered to them to come back to work. I am sorry, but we cannot accept that.
The noble Lord, Lord Slater, talks about happier relationships between an employer and workers in the context of a strike. I wonder really whether noble Lords can understand what goes on in the minds of those people who have to try to plan in industry and are responsible for keeping a viable concern and continuing to give employment in the long term. I am sure my noble friend will support me in saying that I do not think that it is fair for the employer, so to speak, to be bound hand and foot and to be expected to remain "mum" and do nothing whatever to protect his own interests in the context of a strike. I do not think that is either fair or reasonable; yet this is what noble Lords opposite seem to be arguing. I really do not think we can accept that.
3.21 p.m.
LORD SHINWELL: My Lords, I am bound to say that when I looked at this Amendment at the outset I failed to find it attractive. But having listened to the noble Lord, Lord Drumalbyn, I find, because of at least some of his observations, that it is much more attractive than it originally appeared. Noble Lords will have observed that the noble Lord has said there appears to be nothing improper in an employer seeking either to prevent a strike taking place or, once it has begun, to try to prevent its continuance. I would entirely agree with that. Indeed, it follows the line taken by my noble friend Lord Brown, who seemed to argue that there was nothing improper if an employer sought to argue against the intention to promote a strike or to continue it once it had begun. I accept that. But in view of what the noble Lord, Lord Drumalbyn, has said
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on the subject of pressure and how it can be defined, I venture to put this point to him. Let us assume that there is talk of a strike and in this situation of an impending strike an employer approaches a shop steward with influence among his colleagues on the shop floor—there are a number of shop stewards who have influence with their colleagues on the shop floor—and he says to him: "You of course have to act in accordance with the rules of your union. That I accept. But I warn you that if the strike takes place and you fail to seek to prevent it, there may be no question of promotion for you, if that is your ambition, after the strike has taken place." That is how I would define "pressure"—not argument, not a suggestion, not engaging in a conversation of the most friendly character and with the utmost goodwill, but a threat of some kind. Perhaps the term "threat" is using language of extravagance. It might be a suggestion such as the employer saying to the shop steward: "You are a very good fellow, and we know you are very anxious to become a foreman, or perhaps to occupy an under-manager's job or something of that sort. Moreover, there might be a question of pension rights associated with the firm; and of course, as you know, pension rights have nothing to do with the rules of your union. They are quite irrelevant to those rules. This matter concerns the firm itself, and your pension rights might be affected unless you take appropriate action within your power, using your influence, in order to prevent the strike."
That appears to me to be another aspect of this question. It all comes back to what we have been saying over and over again, and asking questions about over and over again—a question of semantics: what do we mean by the terms we use, how are they to be defined and how are they to be operated in practice? I should like to hear the noble Lord, Lord Drumalbyn, applying himself to the point which I ventured to put to him, if I may say so with characteristic modesty, and which hitherto seems to have escaped notice. There is no question of argument or a suggestion, but of something rather in the nature of a threat affecting the possibility of promotion or perhaps pension rights or some improvement in social conditions. I should like

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to hear the noble Lord saying something on this aspect of the matter.
LORD DRUMALBYN: My Lords, the noble Lord, I am bound to say, has been exploring some implications of this Amendment, of which there may be very many, which I had not personally gone into in great detail. When the word "pressure" was used I took this to mean, first of all, the normal sense in which pressure is used: that is, moral pressure, the pressure of argument, and so on. Secondly, there is the question of inducement. It was really in that context in my original reply that I indicated that, where an employer is very anxious to get his workers back to work he makes a specific offer that if they go back to work he will do such and such. What he may not do, of course, is to offer an inducement to them to terminate their membership of the union. Now from what the noble Lord has said there are obviously things in between those two, and although I cannot give any undertaking, certainly on this particular Amendment because in my view it is defective, I will certainly look at this very carefully again before the next stage of the Bill; because while it is true that the Germans describe strikes as "industrial warfare" there must be rules even in warfare. I shall look at this point very carefully before the next stage, but I am afraid I must make it clear that we cannot accept this Amendment in this form.
LORD BERNSTEIN: My Lords, I think that everyone on this side will be grateful for the noble Lord's promise to look into this matter. I would ask him to reconsider the words he used before, as I noted them, that an employer could take any action to get his people back to work. An enlightened employer who is to get people working with him for the return to work after a strike would limit what he considered to be "any action". I think the danger is that some unenlightened employers might take "any action", with dire results.
LORD HANKEY: My Lords, before we finally leave this question may I just try to put this problem back on a two-sided basis? We talk about pressure by an employer, but the basis on which this section rests is that the employer is already himself under pressure. We have
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already limited the amount of action which he can take. He cannot go for unfair dismissal or dismissal found to be unfair; he cannot persuade any of the men to forgo any of their rights to belong to unions, and so on. I agree entirely with all that and I think it is entirely right; but it is only reasonable that an employer should not necessarily be expected to promote a man who persists in fomenting irregular action short of a strike and gravely prejudices the ability of the company to find employment for his workmates. All sorts of absurdities have gone on in both the present and the past year. I am not sure that it would be reasonable to limit the right of an employer to reply to one sort of pressure with another. If the Government are going to think of another clause, I hope they will be most careful about how it is worded. I thought the noble Lord, Lord Brown, made some extremely pungent points on this subject, and I am sure that they are important. I should like the Bill to be neutral in this respect, as it now is, and not come down on the other side of the fence in favour of a state of affairs which represents disorder in industry.
3.32 p.m.
LORD STOW HILL: My Lords, may I reply briefly to the debate and, in particular, to the noble Lord who has just sat down? The Amendment does not go so far as the noble Lord, Lord Drumalbyn, suggested and my noble friend Lord Brown feared. It is carefully hedged around, and I submit with confidence, having listened to my noble friends speaking from personal experience, that an important principle is involved. May I invite your Lordships' attention to the precise limit which circumscribes the effect of this Amendment? What the employer must not do is "exercise pressure"—whatever that term means; I agree it is not an ideal one. The critical words are:
" for the purpose of inducing them to disobey or disregard any decisions duly arrived at in accordance with its rules by or on behalf of any organisation of workers of which they may be members ".
That is a long way away from the meaning which the noble Lord attributed to it. The noble Lord, Lord Drumalbyn, and the noble Lord, Lord Hankey, said that

815
the effect of the Amendment is to hamstring the employer and prevent him from trying to get his employees back to work. It does not do that. It may indirectly conduce to that result.
May I go back to the speech of my noble friend Lord Shinwell? He always brings realism into these debates. Assume a conversation between an employer and a shop steward; assume the situation to be that negotiations have broken down. The matter has been referred to the national executive of the union. The national executive are in charge and, with or without a ballot, according to the rules, they are considering whether or not industrial action should be taken. Perhaps they have announced that there should be industrial action. Assume the employer in those circumstances says to the shop steward, "Do not take the slightest notice of what the national executive say. If they say you are to come out on strike, disregard it; disobey them. I urge you to tell everybody else not to take the least notice of what your union says. Throw their decision to the winds". If the shop steward replies that that is a decision which has been arrived at in accordance with the union rules, the employer says, "Never mind whether it is in accordance with the rules or not; I am telling you to disregard it". My noble friend gave examples of the implied threats that might constitute pressure.
As the author of the words in the Amendment, I acknowledge that they are probably very poor to achieve their purpose, but they are not as bad as all that. The expression "exercise pressure" recurs frequently in the Bill. I accept that in the context in which it occurs it is further defined as pressure by certain types of action which are specified in the relevant clauses. Pressure is something more than mere persuasion—and I turn to my noble friend Lord Brown in saying that. I do not know whether in the example that he was giving, when he was rendering such a distinguished service to the company with which we associate him, he was envisaging a situation in which a two-day strike action was or was not in accordance with union rules.
LORD BROWN: In accordance with union rules.
LORD STOW HILL: Then his example is an apposite one. The example which my noble friend Lord Shinwell gave would be just as relevant to that situation. The employer must not go to a shop steward, or anybody else who is a member of the union, who is doing his best to comply with the rules of the union and who recognises its democratic processes on decisions by majority, however they are arrived at, and say, "Take no notice of them". If the employer is to be allowed to do that and exercise pressure—which really is another term for at least "half threats"—one is making for chaos and not order. A major part of the objective of the Government is to try to neutralise wildcat action and restrict negotiations to an orderly and legitimate channel.
The Amendment does not stop an employer from saying, "I hope you will come back to work as soon as possible. You are doing a great deal of harm to the undertaking, but I recognise that this is the decision of your national executive". He can say that as much as he likes. He can say, "I think your national executive are wrong. I think it is a regrettable decision". He must not say, "Take no notice of it". He can say that he will do everything possible to persuade the executive to change their view, but he must not say to the member who wishes to comply, "You take no notice of it yourself ". He must not tell him to indulge in his own unilateral, unconstitutional action and say that if he does not then something will be done which the employee would not like. That runs right through the clause. Reference was made to the pressure to leave the union by reason of workers having participated in strikes. That is a very restricted provision.
The whole object of the Amendment has not been understood by the Government. The noble Lord said, "If you look at Amendment No. 13 you will find that we have already come some way. We are prohibiting the employer from exercising certain pressure to induce the worker not to assert his rights under Clause 5". Equally it is an unfair industrial action for an employer, or a union, under Clause 36, to break a procedure agreement. This has been defined, as one knows, under the new Clause 163, as being part of a collective agreement.

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Under Clause 36, if you break a collective agreement you will commit an unfair industrial practice. The Government are very close to what is proposed. This is not a major extension; it is a slight adjustment which would be productive of extremely beneficial results. My noble friend Lord Brown could certainly approach his two-day strikers and say, "I hope your union is a little more sensible and does not persist in this unreasonable course". He must not say, "Take no notice of them". This Amendment is of considerable importance and would conduce to the achievement of what is a common objective: orderly, in place of disorderly, industrial relations. May I conclude by thanking the noble Lord sincerely for his intimation that he would like to think of this matter further. I know that when he says that he really means it and will go into the matter most thoroughly. I hope he will take account of criticisms which I have ventured to offer on his reply.

CONTENTS

Addison, V.

Fiske, L.

Samuel, V.

Archibald, L.

Gaitskell, Bs.

Segal, L.

Ardwick, L.

Gardiner, L.

Shackleton, L.

Bacon, Bs.

Garnsworthy, L. [Teller.]

Shepherd, L.

Bernstein, L.

Greenwood of Rossendale, L.

Shinwell, L.

Blyton, L.

Heycock, L.

Slater, L.

Bowden, L.

Hilton of Upton, L.

Soper, L.

Brockway, L.

Hoy, L.

Sorensen, L.

Buckinghamshire, E.

Hughes, L.

Stocks, Bs.

Burton of Coventry, Bs.

Leatherland, L.

Stonham, L.

Champion, L.

Llewelyn-Davies of Hastoe, Bs.

Stow Hill, L.

Chorley, L.

McLeavy, L.

Summerskill, Bs.

Cooper of Stockton Heath, L.

Moyle, L.

Taylor of Mansfield, L.

Crook, L.

Nunburnholme, L.

Williamson, L.

Delacourt-Smith, L.

Phillips. Bs. [Teller.]

Willis, L.

Diamond, L.

Plummer, Bs.

Wootton of Abinger, Bs.

Donaldson of Kingsbridge, L.

Popplewell, L.

Wright of Ashton under Lyne, L.

Douglass of Cleveland, L.

Raglan, L.

Energlyn, L.

Rusholme, L.

Wynne-Jones, L.

Evans of Hungershall, L.

Sainsbury, L.

NOT-CONTENTS

Aberdare, L.

Brougham and Vaux, L.

Ebbisham, L.

Aberdeen and Temair, M.

Buchan, E.

Elliot of Harwood, Bs.

Albemarle, E.

Buckton, L.

Emmet of Amberley, Bs.

Alexander of Tunis, E.

Burgh, L.

Essex, E.

Allerton, L.

Byers, L.

Falkland, V.

Alport, L.

Caithness, E.

Ferrers, E.

Ashbourne, L.

Camoys, L.

Ferrier, L.

Balfour, E.

Coleraine, L.

Forres, L.

Barnby, L.

Conesford, L.

Fortescue, E.

Beaumont of Whitley, L.

Cork and Orrery, E.

Fraser of Lonsdale, L.

Belstead, L.

Crathorne, L.

Goschen, V. [Teller.]

Berkeley, Bs.

Daventry, V.

Gray, L.

Bessborough, E.

De Clifford, L.

Grenfell, L.

Bridgeman, V.

Denham, L.

Gridley, L.

Brooke of Cumnor, L.

Drumalbyn, L.

Grimston of Westbury, L.

Brooke of Ystradfellte, Bs.

Dundee, E.

Hacking, L.

LORD DIAMOND: My Lords, I will not detain your Lordships one minute. I wish merely to remind your Lordships that the second principle expressed in the Bill is:
" the principle of developing and maintaining orderly procedures in industry for the peaceful and expeditious settlement of disputes…".
This Amendment we think assists towards that end, and we must press our view upon your Lordships' House.
LORD DRUMALBYN: My Lords, disputes are not strikes. Strikes may be part of a dispute; but this Amendment does not indicate the peaceful settlement of disputes, which means the settlement of disputes without strikes.
3.41 p.m.
On Question, Whether the said Amendment (No. 60A) shall be agreed to?
Their Lordships divided: Contents, 58; Not-Contents, 106.

Hailes, L.

Mancroft, L.

St. Helens, L.

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

Massereene and Ferrard, V.

St. Oswald, L.

Merrivale, L.

Salisbury, M.

Hampden, V.

Milverton, L.

Sandford, L.

Hankey, L.

Monck, V.

Savile, L.

Hatherton, L.

Morrison, L.

Selkirk, E.

Headfort, M.

Mowbray and Stourton, L. [Teller.]

Sinclair of Cleeve, L.

Henley, L.

Skelmersdale, L.

Hood, V.

Moyne, L.

Strange of Knokin, Bs.

Hylton-Foster, Bs.

Northchurch, Bs.

Strathclyde, L.

Ilford, L.

Nugent of Guildford, L.

Swinton, E.

Ironside, L.

O'Neill of the Maine, L.

Tenby, V.

Kindersley, L.

Orr-Ewing, L.

Tweedsmuir of Belhelvie, Bs.

Latymer, L.

Poltimore, L.

Vivian, L.

Lothian, M.

Rankeillour, L.

Wade, L.

Loudoun, C.

Rathcavan, L.

Wakefield of Kendal, L.

Lucas of Chilworth, L.

Reay, L.

Willingdon, M.

MacAndrew, L.

Robbins, L.

Windlesham, L.

McFadzean, L.

Ruthven of Freeland, Ly.

Wrottesley, L.

Macpherson of Drumochter, L.

St. Aldwyn, E.

Young, Bs.

3.48 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 60B.
After Clause 33, insert the following new clause:
Validity of closed shop agreement in trade or industry with endemic risk of over-employment
" Nothing contained in this Act shall render unlawful or otherwise unenforceable any provision contained in an agreement to which the parties are an employer or employers or an organisation or organisations of employers and an organisation or organisations of workers in relation to which the following conditions are fulfilled, namely—

(a) that the agreement relates to a trade or industry or section of a trade or industry in which, unless the entry of workers into that trade or industry or section thereof is controlled, there is a danger of a number of workers being engaged therein which is substantially in excess of the number of workers which can be reasonably accommodated in that trade or industry or section thereof;

(b) that the said provision is designed for the purpose of the control of such entry; and

(c) that the said provision has been submitted for examination to the Commission and has been approved by the Commission as reasonably calculated to protect the interests of actual and prospective workers in the said trade or industry or section thereof and as being generally in accord with the public interest."

The noble Lord said: My Lords, may I move this Amendment very briefly because it deals with a subject that your Lordships have already discussed on a number of occasions, namely, a closed shop. This is a different approach, otherwise I would not venture to put it before your Lordships. I do so only because,
820
as the Government know, great importance is attached on this side of the House to the existence of the closed shop. In a few words, the features of this approach are that you assume that there is agreement between the two sides that there should be a closed shop and that that agreement is in relation to an industry where there is a serious danger of overcrowding unless entry is properly controlled. You further assume that the object of the agreement is to control such entry, that the agreement has been submitted to the Commission and that the Commission has approved it as being reasonably likely to achieve a proper control.
I will not point out the differences from previous approaches, because your Lordships will no doubt have them in mind. I know perfectly well in advance that, although he will have considered it carefully, the noble Lord, Lord Drumalbyn, will feel bound to say that this is again a proposal which runs directly contrary to Government principle on the matter, and that therefore he would not feel able to make any concession. I always live in hope, and perhaps I am over-pessimistic in that regard. However, that is the proposal, and those are the reasons why we put it before the House. I hope that the noble Lord will feel able to be a little more sympathetic to this approach than he has on the previous occasions of our earlier attempts.
LORD DRUMALBYN: My Lords, I hope that the noble Lord will not feel that I have been unduly unsympathetic merely because I have not been able to accept particular Amendments, because

821
we have tried to deal with them from this side as sympathetically as we could. I am grateful to the noble Lord for having introduced his Amendment so succinctly. It is, of course, an Amendment in general terms and of general application, and if it is to be justified at all it has to be justified in general and not in relation to a particular industry. I think that at any rate we have got away from that here.
The noble Lord asked me to state our attitude to this, and I would just say two things in opening. First, I think he will agree that the mere fact that there is agreement between the two sides of a closed shop is not, of itself, a justification for having a closed shop. As he well knows, the provisions that exist in the Bill for a closed shop were only introduced because of the greatest pressure, and they represent an exception to the general tenor of the Bill. An approved closed shop will not be easy to obtain and it was not intended to be easy to obtain. Secondly, the mere fact that a state of unemployment exists in a particular industry could not, in itself, justify a closed shop. Indeed, a closed shop might be a quite inappropriate remedy for it.
What the suggested clause attempts to veil is that the proposition the noble Lord puts forward really covers a reference to pre-entry closed shops. He puts it forward as a specific condition for regulating entry to trades or industries with abnormal unemployment, but the words proposed in the opening lines of the Amendment,
" Nothing contained in this Act shall render unlawful or otherwise unenforceable any provision contained in an agreement…"
to control entry, would clearly permit union membership to be used as the criterion for entry into a trade or industry. That would allow the pre-entry closed shop to operate irrespective of any provision in the Bill, and would be contrary to the provisions of Clause 7, which specifically outlaw the operation of such arrangements.
The noble Lord asked us to state our position, and I can only say again that our reasons for including provisions to make void the pre-entry closed shop are these: the pre-entry closed shop is, in effect, a form of unilateral control by a
822
union over the rights of individuals to seek employment for which they are qualified. It places an individual's livelihood at a union's discretion, and may inhibit mobility and an economic use of labour. Furthermore, it is questionable whether the pre-entry closed shop can maintain standards more effectively than various forms of joint regulation of entry, or do so without depriving the qualified non-member of employment or legitimate expectations of employment. Finally, there is nothing in the Bill to prevent unions making agreements with employers about conditions of entry based on skill, qualifications, experience and the like, provided only that union membership is not a condition of entry, a prerequisite of employment.
The proposed Amendment is drafted in general terms which, on the face of them, suggest that it is intended to safeguard agreements providing the legitimate tests of entry which the Bill allows. As such, it is unnecessary, for, as I have said, and say again, there is nothing in the Bill which, in the terms of the proposed Amendment, makes unlawful or unenforceable, an agreement between an organisation of workers and employers to limit entry to the trade or industry on the grounds of the danger that the industry or trade will be overcrowded, provided that the limitation of entry is not the basis for the operation of a closed shop.
Past experience of working in the industry, qualifications of proven skill in the trade, would be a legitimate basis for controlling entry to an industry when the Bill's provisions come into effect, but this Amendment would allow entry to an industry to be regulated on the basis of union membership. That is its purpose, and that is the reason why the Government cannot accept it. The Government do not believe that union membership is a necessary control for maintaining standards, or for controlling the numbers entering an industry or trade. The Government believe that there are better, more effective and more equitable ways for regulating entry that will continue to be legitimate under the provisions of the Bill. Even apart from that general attitude of principle, the noble Lord will appreciate that we do not think that this would be a proper function to give to the Commission on Industrial Relations,

823
the functions of which, as the noble Lord himself said yesterday, are investigation, advice, recommendation and conciliation, and not decision-making of this kind. It is not that we are unsympathetic to this kind of case but, for all those reasons, we do not think that this is an appropriate remedy, and I cannot recommend my friends to accept the Amendment.
LORD STOW HILL: My Lords, I am grateful to the noble Lord for his answer. I hope he does not think I was suggesting that he was unsympathetic. I was very far from suggesting that. I merely meant that the attitude which he, perfectly sincerely, feels that it is his duty to adopt is not encouraging to those who put forward Amendments on these lines. In every other way, he is a most sympathetic personality. In the circumstances, I do not think I would be justified in asking your Lordships' House to reach a formal decision upon this Amendment and, having heard what the noble Lord says, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
Clause 34 [Presumptions relating to collective agreements]:
3.58 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 60C:
Page 27, line 9, after (" writing ") insert (" and signed by the parties thereto ")
The noble Lord said: My Lords, we begin our consideration of Part III of the Bill, dealing with collective agreements, with an Amendment which is almost, but not quite, a drafting Amendment. The only purpose of this Amendment is one which is designed to ensure that what is presumed to be a legally enforceable civil contract and agreement is, in fact, an agreement and not just a preliminary offer, or something of that sort, made in the course of negotiations. We want to ensure that when they get to the stage of final acceptance, it is generally agreed between the two sides to the negotiations that this is the agreement, and that by coming to that decision they will then sign the agreement. That will lend to the agreement an air of formality which I think ought properly to reside with the signing of a contract of this sort.
If the desires of the Government are to be attained in relation to the legal enforceability of collective agreements, it surely is the case that a greater degree of formality should enter into the closing stages of the negotiations which have led up to it. If the Amendment which I have moved is accepted it will mean, as I said just now, that when you get to the end of negotiations you will then say, "This is the end. Are you prepared to sign this agreement?". The parties will then take a decision. They will sign the agreement in the full knowledge that it is a collective agreement which, provided they have not entered a presumption that it shall not be a legally enforceable agreement, will be a legally enforceable contract. My Lords, this is something that ought to be included; although it is almost a formal, drafting Amendment, I think that the Government ought to agree to it because it will bring some sense into the part of the case we are now considering. I beg to move.
THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE): My Lords, it is most extraordinary that the Party which is constantly condemning us for introducing needless legalism into this Bill should itself be guilty of the most extraordinary legal mumbo-jumbo, as exemplified by this Amendment. When I first went to the Bar some thirty years ago there was a Statute on the Statute Book called the Statute of Frauds, passed in the reign of King Charles II. There was the Sale of Goods Act which contained also the old Section 17 of that Statute of Frauds. The provision of that Statute, that certain types of contract should be in writing and signed by the persons to be charged therewith, gave rise to more litigation and more nonsense than almost any Statute in the law of England. So tiresome and so utterly repellant was it to modern practice, that it was repealed only two or perhaps three Parliaments ago.
Now the Labour Party, which does not like legalism, is asking us to put the clock back to 1677 and to re-introduce the signature as a necessary ingredient of the validity of a contract. That would be really to introduce the worst kind of formality into the Bill. Incidentally, it would enable the parties to defeat the whole purpose of the Bill, having reduced a contract into writing, to secure by a

825
back door what it had failed to get agreed in negotiation by refusing to sign. The truth is that the necessary degree of formality for which the noble Lord has asked is contained in the provision that in order to be legally binding, so that the presumption may apply, the contract must be in writing and not contain a disclaimer. The idea that it should be signed in addition would re-introduce the whole of the phantasmagoria of the Statute of Frauds, and I beg your Lordships not to pass this Amendment.
LORD CHAMPION: My Lords, the noble Lord has shot me down with heavy mortar. He talked about legal mumbo-jumbo. This Bill is a mass of legal mumbo-jumbo; had it not been for that, I should not have been moving this Amendment. I have, perhaps wrongly, always regarded the actual signing of a document as part of the making of a contract. My mind goes back to the purchase of a house many years ago. I felt that I had entered formally into a contract when I appended my signature to a document which said that I was purchasing that house at a certain sum. That seemed to me to be a wholly sensible thing to do and I believe it would be a wholly sensible thing to do if I entered into a contract with someone to come and undertake certain work at my home. I would expect him to sign it as an indication of good faith, and I would sign it as an undertaking of good faith. I should have thought that in this case, despite everything that might have been done back in the 18th century and removed by Parliament some two Parliaments ago, it does not necessarily invalidate what I said about the signing of a contract in order to ensure that its formality is recognised, that everybody enters into it with his eyes wide open to the consequences.
However, as I have said, the noble Lord has brought some heavy guns to bear against me and to some extent, I suppose, I must take into consideration what he has said. I might have to consider it between now and Third Reading, but in the circumstances I beg leave to withdraw the Amendment.
LORD HANKEY: My Lords, before we leave this question, in my experience of drawing up agreements, it is usually done by many backroom boys—often I
826
myself used to do it—and they would come out with a mass of items scribbled on paper; amendments were inserted and there was what used to be known as "balloon" trouble in the Civil Service, with a mass of little amendments inserted here and there. That of course is something which is in writing but one assumes that there must be some uncertainty about which draft is the correct one, which has actually been agreed. If a Bill says only that it is in writing, I am sure the Lord Chancellor is right in saying that is sufficient, but how do we know that the parties are agreed that that is the particular text? We have had so much lack of clarity about these matters that I am sure it would be valuable for your Lordships to be informed how we know that, if no document is initialled or signed.
THE LORD CHANCELLOR: My Lords, it must be done in exactly the same way as one proves anything else—by evidence. But the fact is that before a fair copy is made—which is what the noble Lord is quite sensibly asking for—normally the document which contains the "balloons" is initialled. That would be a signature for the purposes of this Amendment, so it would not constitute progress. The noble Lord, Lord Hankey, should not confuse the desirability of authenticated fair copy with the desirability of signature. Does the noble Lord wish to withdraw the Amendment?
LORD CHAMPION: My Lords, I had previously asked that the Amendment he withdrawn, but I must do so again because someone has spoken since. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.8 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 60D:
Page 27, line 12, after (" is ") insert (" by any party to it ").
The noble Lord said: My Lords, I think we could discuss Amendment No. 60D and Amendment No. 60F together. They are on exactly the same point. I think it was generally admitted in our discussion on the Committee stage that this clause introduces a novel and, to many of us, undesirable principle into our law. The principle is that collective agreement can be legally enforceable even

827
though one of the parties to that agreement has no intention whatsoever of making the agreement a legally enforceable contract. What has to be remembered in this connection is that an agreement arrived at in an industrial dispute is not the same as an agreement arrived at, for example, on the sale and purchase of a house or a normal contract for the carrying out of works. Elements of power enter into the negotiations leading up to the final agreement in most industrial dispute negotiations. If one of the parties, under some duress, says, "We will accept the agreement but will not sign a clause to it making it a legally enforceable contract" and the other says, "I will not accept a provision indicating that it is not intended to be a legally enforceable contract", in those circumsances the situation will arise, if a strike is ended on that inclusive note, of a collective agreement being legally binding against the wishes of one of the parties; it might well so end.
I should have thought that that was undesirable in any case, but this clause will lead to something else. The tendency is bound to be for the parties to turn more and more to oral agreements and, therefore, to what in some ways are undesirable agreements. Instead of making agreements more precise, the clause will tend to make them even more informal and vague, which is wholly against what the Government are trying to do. What I think they are trying to do is to ensure that future collective agreements shall be precise, shall not be informal and shall not be vague, but shall be in such a form that they can be enforced in the courts of our land, and certainly in the Industrial Court, to which disagreements will have to be taken. I am sure that it is best for the country and for the union and employer concerned to have agreements in writing, and in such a form as to be understood and able to be interpreted by those who might have to interpret them. Under the Amendments which I am here discussing the presumption will remain, but it will not need the agreement of both parties to make it non-enforceable. It will be possible, if one party does not agree to an agreement being made non-enforceable, for the presumption to be changed.
Of course the simpler way to deal with this whole matter would be to drop
828
this clause altogether, and to permit the parties to make an agreement legally binding by a simple clause stating that it is intended to be so. That is certainly what I recommend, and it is undoubtedly the position in most cases of contract. But the Government are wedded to this silly arrangement. All I am trying to do here is to make it a little better, and to make it possible for one of the parties to indicate that he will not accept a contract as legally enforceable, and when a party has so indicated, the presumption in Clause 34 will not operate. My Lords, I beg to move.
4.13 p.m.
THE LORD CHANCELLOR: My Lords, the noble Lord, Lord Champion, presents his case so charmingly and so moderately that it is a hard task to come down again on this Amendment and say that it is wholly misconceived. Of course I can understand the noble Lord's objection to the whole clause, and to the presumption which is contained in it. Indeed, if my memory does not belie me, there was a Division during the Committee stage on the Question Whether the clause shall stand part of the Bill? and the Committee decisively decided that it should stand part. But I can understand that that has not persuaded the noble Lord that the clause is desirable. What is beyond question is that this Amendment is not merely useless, but is basically unintelligible. What does it mean?
The present position is that unless an agreement in writing contains a disclaimer clause to the effect stated in paragraph (b) of Clause 34—that is to say, it contains a provision which, however expressed, states that the agreement, or part of it, is intended not to be legally enforceable—then the conclusive presumption is made that the agreement is to be enforceable. But the noble Lord postulated a situation where one party wants it to be enforceable and one party does not. That means that no agreement at all has been made, and the matter is therefore at large for further negotiation or conciliation until they decide the unresolved point. That is where the matter stands, and there is no possibility at all of an agreement being made when one party has not assented to one of its vital terms—namely, the question

829
whether it has legal effect. The fact is that what the noble Lord has postulated is not an agreement, but a state of disagreement calling for further negotiation or conciliation.
One cannot contemplate a bargain which is to be binding on one side and not on the other, and if there is to be a bargain both must agree either that it is to be enforceable or that it is not to be enforceable. All that the clause states is that, unless they record as part of the agreement in writing that their decision is not to be enforceable, there is a conclusive presumption that they intend that it should he enforceable. The Amendment does not improve or cure anything. It records the noble Lord's dislike of the whole clause, which I acknowledge, and about which there is a disagreement between us. But the Amendment itself is not worth while.
LORD CHAMPION: My Lords, I do not know that the noble and learned Lord is absolutely au fait with what takes place when collective bargaining is going on. You get to the point where you say, "We think that we shall be able to end this strike provided that x terms are agreed." Those terms are agreed and, quite apart from the agreement, the parties have to consider whether or not it shall be presumed to be a legally

NOT-CONTENTS

Aberdare, L.

Atholl, D.

Belhaven and Stenton, L.

Albemarle, E.

Balerno, L.

Belstead, L.

Allerton, L.

Balfour, E.

Berkeley, Bs.

Alport, L.

Barnby, L.

Bessborough, E.

Ashbourne, L.

Beaumont of Whitley, L.

Bridgeman, V.

enforceable agreement. The parties may disagree about that. So is it suggested that, because they cannot agree about the legal enforceability, a strike should go on in spite of the fact that the important point, the wages and conditions of service, have been agreed? That seems to be absolute nonsense.
What we have to consider is that at this time the trade union movement is violently opposed to the Bill and to making collective agreements which are presumed to be legally enforceable contracts. In the circumstances which I have postulated, it would be quite silly for the parties to go away and for a strike not to be ended, simply because they were not able to agree about whether or not an agreement should be presumed to be legally enforceable. This is something to which I cannot agree, despite the arguments which the noble and learned Lord advanced. I hope that the House will support me in trying to decide about this condition in this clause, which he thinks is right and which I think is altogether wrong.
4.20 p.m.
On Question, Whether the said Amendment (No. 60D) shall be agreed to?
Their Lordships divided: Contents, 61; Not-Contents, 93.

Brooke of Cumnor, L.

Hacking, L.

Northchurch, Bs.

Brooke of Ystradfellte, Bs.

Hailes, L.

Nugent of Guildford, L.

Buchan, E.

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

O'Neill of the Maine, L.

Byers, L.

Poltimore, L.

Caithness, E.

Hampden, V.

Rankeillour, L.

Camoys, L.

Hankey, L.

Robertson of Oakridge, L.

Clwyd, L.

Hatherton, L.

Ruthven of Freeland, Ly.

Coleraine, L.

Hawke, L.

St. Aldwyn, E.

Conesford, L.

Headfort, M.

St. Helens, L.

Crathorne, L.

Henley, L.

St. Oswald, L.

Daventry, V.

Hood, V.

Salisbury, M.

de Clifford, L.

Ilford, L.

Sandford, L.

Drumalbyn, L. [Teller.]

Jellicoe, E. (L. Privy Seal.)

Savile, L.

Dundee, E.

Kilmany, L.

Selkirk, E.

Elliot of Harwood, Bs.

Latymer, L.

Skelmersdale, L.

Emmet of Amberley, Bs.

Lothian, M.

Strange of Knokin, Bs.

Essex, E.

Loudoun, C.

Strathclyde, L.

Falkland, V.

MacAndrew, L.

Swinton, E.

Falmouth, V.

McFadzean, L.

Tenby, V.

Ferrier, L.

Macpherson of Drumochter, L.

Vivian, L.

Fortescue, E.

Mancroft, L.

Wade, L.

Fraser of Lonsdale, L.

Massereene and Ferrard, V.

Willingdon, M.

Goschen, V. [Teller.]

Merrivale, L.

Windlesham, L.

Gray, L.

Meston, L.

Wrottesley, L.

Grenfell, L.

Milverton, L.

Young, Bs.

Gridley, L.

Monck, V.

Grimston of Westbury, L.

Morrison, L.

Resolved in the negative, and Amendment disagreed to accordingly.
4.28 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No 60E:
Page 27, line 13, at end insert (" provided that a statement entered in a minute book or record of proceedings that contracts shall not be legally enforceable shall apply to all contracts entered in such minute book or record of proceedings ").
The noble Lord said: My Lords, the intention of this Amendment is, I think, quite clear. It is to enable parties to agreements that are entered in minute books and similar records of proceedings to exclude by a simple statement such agreements from the provisions of this clause, which agreements would otherwise be legally enforceable contracts. What I have in mind is the sort of thing that operates so often at workshop or depot level. Take the case of the railway local departmental committee covering a staff of 50 or more at a local goods depot. The agreed machinery of negotiation covering such a local departmental committee says of the minutes of these committees:
" The minutes of the meetings, having been signed by the two chairmen and the two secretaries of the local departmental committees, shall be posted up at the station or depot in such a manner as to be accessible for the information of the staff concerned. A copy shall also be supplied to each member of the committee ".
My Lords, such local departmental committees have a number of functions, one of which is to agree the arrangements for first-aid, and generally for the preparation of people to carry out first-aid. I have myself, in a former capacity, been a party to an agreement at a local departmental committee that the local depot master's office be used for first-aid training between 7 p.m. and 9 p.m. on Tuesdays and Thursdays. For the information of the workers at the depot, this agreement has been minuted and posted up. I ask the House to consider the laughter that would greet a notice saying:
" Resolved: That the depot master's office be used on Tuesdays and Thursdays between the hours of 7 p.m. and 9 p.m. for the purpose of first-aid training; and we, the local departmental committee, have agreed to exclude this minute of our proceedings from the provisions of Section 34 of the Industrial Relations Act, which Act would otherwise make this agreement a legally binding contract upon the parties to this agreement ".
My Lords, the whole thing is a nonsense.
It might say something else. The minute might deal with the use of a lavatory; and you follow it up solemnly with a clause saying, "This shall not be binding upon anyone". It is an invitation to the sort of graffiti which anything posted up tends to invite, especially on that sort of agreement. The whole thing is really preposterous. The clause itself is, I think, a nonsense but this Amendment would make it just a little less so. I am sure

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that it cannot be in the mind of the Government that there should be in trifling things of this sort the sort of presumption which is embodied in the clause itself. I believe that the Amendment is a good one and that its intention is quite clear. I beg to move.
4.31 p.m.
THE LORD CHANCELLOR: My Lords, the noble Lord, as usual, has made a short and pleasant speech. The difficulty about it is that it has no relation to the words of the Amendment which he has proposed or to the effect which it would have if it were passed. The noble Lord proposes to insert at the end of paragraph (b) of Clause 34 (1) the words:
" provided that a statement entered in a minute book or record of proceedings that contracts shall not be legally enforceable shall apply to all contracts entered in such minute book or record of proceedings ".
In other words, the subsection would read as follows:
" Every collective agreement—

(a) which is made in writing after the commencement of this Act, and,

(b) does not contain a provision which (however expressed) states that the agreement or part of it is intended not to be legally enforceable, provided that a statement entered in a minute book or record of proceedings that contracts shall not be legally enforceable shall apply to all contracts entered in such minute book or record of proceedings, shall be conclusively presumed to be intended by the parties to it to be a legally enforceable contract."

Of course, there is a point behind this Amendment which was very fully argued, and, I had hoped, conclusively determined, on Committee; but this Amendment has built-in disadvantages of its own. It removes the collective presumption from any agreement in writing contained in a minute book, although it contains a contract and whether or not there was an express disclaimer, even in fact if the parties intended it to have legal effect. There is nothing in the Amendment to say that the minute book must be any particular minute book. Any minute book will do, apparently, or any record of proceedings. There is nothing to say that the minute must be agreed between the parties to the contract. Apparently it will do if it is contained in a minute kept secretly by one of the parties to the contract, even though the other party may have supposed that the presumption applies. There is nothing to indicate that
834
the minute should be expressly in the minds of the parties when they conclude the contract. There must be a minute, and once the minute has been established in the book the parties can allow the matter to pass entirely from their minds; because so long as a contract of any kind is in that minute book: and is a collective agreement no presumption of intention can arise.
This, of course, is a wrecking Amendment. As was explained on Committee, the object of this clause, whether one agrees with it or not, is that the parties to a collective bargain in writing should always consider the question (whichever way they ultimately come down as the result of considering it) whether or not it is to have legal effect. If they do not want it to have legal effect they should insert a provision to that effect. The late Government had the same idea in mind, although they made the presumption the other way. This Amendment, however, introduces the conception that you can make, once and for all, an option not to have any agreements with legally enforceable effect and having arrived at that presumption it should bind you, at any rate for an indefinite time, and perhaps for all time and you should never consider the matter again. This would render the clause a complete nullity.
I recognise that that is what Lord Champion wants. He has candidly told us so in the last half an hour. That is not what we want. He did manage to make a very persuasive speech by referring not to the words of his Amendment but to his own experience, which we know is vast, based on depot and on departmental committees. He gave us an entertaining picture of a written document about the use of a first-aid post put up on the wall of some place to which the workers have access. I do not want to take your Lordships through the definition of "collective agreement" contained in Clause 162; but at any rate at first sight I should have thought that that was not a collective agreement in the sense defined. The fact is that most informal agreements at that kind of level are arrived at orally and their whole terms are not as a rule reduced to writing: therefore, the presumption does not apply to them, anyway. On the rare occasion where an agreement, which is a collective agreement within Clause 162, at that level is

835
reduced to writing, we think that the parties ought to make up their minds in clear terms whether or not they want the presumption to apply.
I may say in parenthesis—because it is relevant both to this Amendment and to some that we have recently discussed and some that we are about to discuss—that all that this clause does is to create a presumption as to the intention of the parties; namely, as to whether they do or do not intend the contract to be legally enforceable. Presumption does not make it legally enforceable. It can, of course, be an illegal agreement. It could be, as the noble Lord, Lord Champion, postulated when discussing a previous Amendment, an agreement arrived at by duress—though I was not sure exactly what the noble Lord meant by "duress" in that context. It may be an agreement which is too vague to be enforced. It does not supersede the ordinary rules as to enforceability of contracts; it only creates a presumption as to the intention of the parties. It is the intention of the Government, as a matter of policy, that the parties who desire to enter into written agreements should make up their minds, by conscious attention to the point, whether they want or do not want the agreement to be legally enforceable; and for that purpose the theory of a "once and for all" option is wholly contrary to the policy of the Government.
Though I recognise that this Amendment represents the noble Lord's hostility to the clause, it is in fact a wrecking Amendment; although he may not have intended it quite so firmly as such. If in fact the parties wish to bypass the clause by voluntary arbitration procedure, that would give us nothing but pleasure. But if they wish to make collective agreements within the meaning of Clause 162, and wish to make them in writing, then it is our desire that the presumption should apply. This is a difference between us, and it is no good my continuing to elaborate the point because we shall not persuade one another. I have no resentment at all against the noble Lord, Lord Champion, who is his usual charming self. The fact is that this is a question of policy on which the two sides of the House have different views.
LORD CHAMPION: My Lords, I do not propose to press this Amendment. At the level about which I was talking agreements are arrived at formally; they are minuted formally and the minutes are posted up for everyone to read. They are in fact formal agreements arrived at in accordance with the machinery of negotiation, as signed by the three railway trade unions and the railway authority in 1956 following very much the sort of agreement that had existed for some time before that.
My Lords, we cannot agree on this matter. Here the Government are trying to do something which I think is a nonsense. They are trying to make this legally enforceable right down through the whole machinery of negotiation; from the very highest level to the sort of level that I was talking about, the level at which people discuss first-aid arrangements and such minor things that enter into negotiations between parties at that level. As, clearly, I am not going to make any progress over this, I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.44 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 60H:
Leave out Clause 34.
The noble Lord said: My Lords, this is an important Amendment. It is one which we discussed on Committee stage. I doubt very much whether I should have put it down on Report, having regard to the fact that it was pretty fully discussed on Committee, had it not been for the weight of argument deployed against the clause by, in particular, two outstanding members of the legal profession who sit on the Cross-Benches. I refer to the noble Lord, Lord Tangley, and the noble and learned Lord, Lord Wilberforce. They mounted powerful arguments against the clause and the whole idea embodied in it. That is not to say that powerful arguments were not mounted against the clause by members of my own Party; indeed they were. But in considering a Bill which has become very much the centre of a Party battle, one would expect that the Government might be moved more by arguments from the Cross-Benches than by Opposition arguments.
The arguments adduced by the noble Lords who sit on the Cross-Benches seemed to me to be irrefutable. In preparation for this debate, I re-read their speeches and also the speeches of the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Drumalbyn. I am bound to say that I think anyone who read the whole debate would say that the speeches of the noble Lords on the Cross-Benches were unanswerable. The standing of those two noble Lords in this matter is of the highest, as we all know. One was a member of the Donovan Commission which considered the whole business of industrial relations over a period of many months, and the other is a member of the highest legal tribunal in the land—and, what is more, one who was recently responsible for the conduct of and the Report of a Court of Inquiry into the electricity industry dispute.
The noble and learned Lord, Lord Wilberforce, summed up a powerful argument for a sensitive and sophisticated procedure which would bring collective agreement under the law, but not under lawyers' law, in these words:
" What would he much better—and it may not be too late to bring it in—would be to have a flexible and sensitive procedure, either under the Industrial Court or the Commission on Industrial Relations, or both, which would enable complicated, informal, elaborate or long-term collective agreements to be dealt with in the most appropriate way."—[OFFICIAL REPORT, 17/5/71, col. 116.]
In that, it seems to me that the noble and learned Lord was wholly at one with the Donovan Commission, which stated in paragraph 471 of its Report:
"…collective bargaining is not in this country a series of easily distinguishable transactions comparable to the making of a number of contracts by two commercial firms. It is in fact a continuous process in which differences concerning the interpretation of an agreement merge imperceptibly into differences concerning claims to change its effect."
Here we have two eminent authorities, the Donovan Commission and the noble and learned Lord, Lord Wilberforce, both saying that what is proposed in this and the immediately following clauses simply will not do for this country.
Part of my purpose in putting down this Amendment was to give the Govern
838
ment an opportunity to tell the House the outcome of their consideration of the suggestion of the noble and learned Lord, Lord Wilberforce, for "a flexible and sensitive procedure" for resolving disputes about collective agreements; for I thought it was well worthy of the most careful and sympathetic consideration. Another part of my purpose in putting down this Amendment was to give the Government an opportunity to clear up doubts raised by the unsatisfactory answers to questions posed by the noble Lord, Lord Tangley, who said:
" But the Lord Chancellor did not deal with the other point I made that prima facie to say that an agreement is legally enforceable—which is quite a solemn term—means that it is legally enforceable. That is to say that someone can sue somebody either for specific performance of the agreement or for damages of the breach of it."
The noble and learned Lord the Lord Chancellor intervened at that point to say, "A contract", and the noble Lord, Lord Tangley, continued:
" As a contract. Clause 125 obviously assumes that a collective agreement will create a contract in respect of which damages can be sued for. That is presumably why the Industrial Court is given by Clause 125 exclusive jurisdiction over that type of case by definition. That assumes that Clause 34 is not the only clause to consider. We have to consider the actual interpretation which the courts will probably give to the solemn words "legally enforceable". I suggest that they at least mean that the union could be sued for breach of this obligation, and the union would not have open to them the defence which would be open to them under Clause 34—namely, that they had done their best to see the agreement was not broken.
" Nor am I at all satisfied that there would be no right of action against the individual workman, because when he takes his employment, knowing the situation, and all parties knowing the situation to be that there is an agreement that has been solemnly declared legally enforceable, I should have thought that the courts would probably hold—and if there is any ambiguity we should get rid of it—that that agreement is part of his contract of employment, and that he could be sued for breach of that accordingly. I am quite sure it should be cleared up when tackling the question of damages."—[OFFICIAL REPORT, 17/5/71; col. 131.]
I think that the House ought to know the answer to that searching question before it finally parts with this clause, for it is the responsibility of the House to try to remove any possibility of ambiguity, rather than to leave it to a new court, as the Industrial Court will be under this Bill, to try to make sense of

839
this and subsequent clauses and create case law about them.
I do not know what has been the outcome of the invitation of the noble and learned Lord the Lord Chancellor, when he said, at col. 132:
" Of course if the noble Lord wishes to make representations to me or to continue this discussion between now and Report, I am only too happy to meet either with him or with the noble and learned Lords who have also occupied the Cross-Benches in such distinguished fashion."
I am sure that the House would like to know what course any discussion followed and if it is likely to have any practical result. I was hoping that the noble Lord, Lord Tangley, would be here to-day, because clearly he had posed questions that ought to be answered and I should have thought that he ought to be in the House to hear the answers, but unfortunately his business takes him out of the country at this time. I should like to see this clause deleted, for general reasons. The noble and learned Lord said just now that I dislike this clause. I dislike it and I do not like the clauses that follow it. But I think it ought to be deleted, not merely because I dislike it but because of the arguments so cogently advanced in Committee against the whole procedure, both by the noble and learned Lord, Lord Wilberforce, and Lord Tangley; and by my noble friends.
I must admit that my main reason for asking the House to return to the clause as a whole on Report is that I think the House ought to know the replies of the Government to the suggestion of the noble and learned Lord, Lord Wilberforce, and to the questions of the noble Lord, Lord Tangley. I do not know what has happened in the intervening period, but the fact that those noble Lords were invited to discuss these matters with the noble and learned Lord the Lord Chancellor was of interest at the time and is clearly a matter of interest to us now. I believe that the House ought to know what was the outcome of any discussions that took place. I am moving this Amendment to enable the House to hear, and perhaps eventually record its decision against a clause which, in my opinion, is wholly undesirable, will have bad effects and will certainly not improve industrial relations in this country. I beg to move.
LORD WILBERFORCE: My Lords, as the noble Lord who has just sat down was kind enough to refer to some of the observations I made on Committee stage, perhaps I can add a few words to what he has said. He is quite right in saying that at Committee stage some of us from these Benches made some remarks in general terms as to Part III of the Bill, dealing with collective bargaining. I am conscious that on that occasion I made what was really a Second Reading speech, suggesting that the approach of this Part of the Bill was not the best that could have been made. I still am of that view. I need not amplify what I said then, because the noble Lord has very fairly quoted some of the relevant portions of what I then said.
The difficulty we are in is this. The Government are putting forward a Bill with a certain approach, a certain philosophy. I certainly should be inclined to think that a different approach would have been better, but in order to achieve it it would be necessary to have a totally different Bill or, at any rate, a totally different Part III of the Bill. For that reason, apart from voicing certain doubts which I felt and still feel as to the workability and merits of this Part, I did not, and my noble friends on these Benches did not, think it practicable to put down an alternative to Part III.
It is true that we engaged in some discussions with the Government with a view to making certain clauses in this part of the Bill slightly more workable. My noble and learned friend Lord Tangley has been in correspondence with the Minister and with his helpers, and I shall be referring to some of the concrete results which have come out of those discussions when we come to Clause 36. I also have been in discussion with the Government and they are still considering a suggestion which I made for the amending of a later clause. That, we felt, was the best we could do in relation to this Part of the Bill: to make constructive suggestions in the framework of the Bill as proposed to us. We believe that we have succeeded and shall succeed in making one or two improvements of a practical kind. But, speaking for myself and I think also for my noble friend Lord Tangley, we would not feel that any practical purpose would be served

841
by deleting this clause. Indeed, I understand that the noble Lord is proposing its deletion rather more with a view to drawing the fire of the noble and learned Lord on the Woolsack than with achieving a lacuna in the Bill. I shall be dealing with some of the detailed matters when we come to a later clause, but that is what I felt it necessary to say on the general aspects of Part III of the Bill.
LORD HANKEY: My Lords, I am much in favour of this clause and I hope that your Lordships will approve it, but I should be grateful if I may, without being a bore, go back to the question of the agreement being made in writing. If an agreement has to be enforced, it must be clear what the text is, and I am not sure that we shall not have differences about which is the correct text. I can imagine a case where one of the parties to an agreement comes to the industrial tribunal and says that this is what the agreement provides, and the other party comes along with a different version and says that there has been a mistake about the text. The tribunal has to start taking evidence, as the noble and learned Lord suggested just now.
I think that one of the defects of the arrangements we already possess for settling our industrial disputes is that the settlement procedures take too long: the boys on the shop floor get absolutely fed up and in a state of despair because their complaints cannot be remedied quickly. This is something that we have to think about seriously. If the tribunal at the start of proceedings has to take evidence to find out what the correct text is, surely that will be a prolonged and complicated affair and will defeat the aims and purposes of this Bill.
This is not an easy question, and I do not pretend that it is. I am told by some Members of your Lordships' House with great knowledge of industrial affairs, whom I have taken the opportunity to consult, that many trade unionists do not like putting their signature to anything; and the noble Lord, Lord Drumalbyn, said in his speech on this part of the clause that if "signature" were made a requirement it might be that no agreement could ever be concluded. This is something with which I think we must deal. From my experience in Sweden, I know that industrial agreements have
842
to be registered with the Ministry of Labour. After they have been so registered they then receive legal force.
Of course, this enables the Ministry of Labour to look at them and make sure that they are all right. I am sure that the Swedish Ministry would not pass an agreement unless it was signed, or was submitted by both parties to it as a correct text: they would be sure, at least, of what they were approving. Similarly, the Tribunal or the Industrial Relations Court in this country must be sure what text it is going to be asked to enforce or to decide upon; and we must make certain that this does not make for an endless procedure which exasperates the boys on the shop floor or, for that matter, management.
I am sure that the noble and learned Lord the Lord Chancellor and the Government are right in saying that they do not want necessarily to have these agreements signed. But I should be grateful if the Government would think about finding some sort of solution to this problem. I do not know whether in the relevant chapter of the Code of Industrial Relations Practice it would be possible to put an advice to all concerned that agreements should be signed wherever possible so as to make clear what the text is. At any rate, I should be grateful if the Government would give a little further thought to this. I feel sure that in 1972 we ought to be able to do something better than what was done in 1662. We obviously cannot register all agreements in this country with the Ministry of Labour, because we should need a special Ministry to do it, as our economy is so vast. But I feel that this problem requires further thought. Subject to that, I warmly approve of this clause.
LORD BERNSTEIN: My Lords, I support the Amendment. There is obviously a legal tangle here and it will be difficult for laymen, who sooner or later will have to handle the Bill, to be able to pass down the line what is in this clause. In Committee stage the noble and learned Lord the Lord Chancellor said that he did not see any ambiguity or tangle, and he could not be persuaded otherwise. Yet the noble Lord, Lord Tangley, said:
" I have heard for over 50 years judges criticising Parliament for obscurity of language, and telling us it is no good telling them what the Attorney General said in

843
the House of Commons or what the Lord Chancellor said in the House of Lords."—[OFFICIAL REPORT, 17/5/71; col. 131.]
Unless the noble Lords, Lord Tangley and Lord Wilberforce, can understand the Bill, and unless a few lawyers of less eminence whom I have consulted can understand it, do not know where it will finish, unless it is in the courts somewhere, with great debate, which—as the last speaker said—will take a long time. Is it possible for this to be re-written in simple language so that people—and I am talking of the people who will have to deal with the Bill sooner or later—really know what a contract is in this respect? The original Clause 32, now Clause 34, does not explain it to the layman, and evidently does not explain it clearly to the legal profession.
LORD DONOVAN: My Lords, the Royal Commission spent many hours debating this problem, and in the end we all came to the conclusion that at the present time legal enforceability of collective agreements, so far as it concerns the real contribution to good industrial relations, is a myth. If you take the substantive agreement which lays down hours of work, pay, holidays and so on, legal enforceability adds nothing unless you make the agreement run for some appreciable length of time. Otherwise, even if the agreement is legally enforceable, it can be ended by appropriate notice by one side or the other, which as a rule will be of shorter duration than the time taken at present to negotiate a new one.
So far as procedure agreements are concerned, those which lay down procedures to be gone through before industrial action is resorted to, the trouble with the Bill is that it makes these agreements, subject to disavowal by both sides legally enforceable, but not against the parties who at present are the chief offenders in breaking them; nor really against trade unions, because all they have to do is to use their best endeavours to see that these are obeyed. One has said this so often that I am not going to repeat it, except to say that, in general, legal enforceability is something that unnecessarily diverts attention from the real problems which this Bill has to solve, and more particularly when, at the same time that legal enforceability is made a presumption,
844
the Bill almost goes out of its way to show how easily this provision can be avoided.
5.8 p.m.
THE LORD CHANCELLOR: My Lords, what we are discussing is an Amendment by the noble Lord, Lord Champion, to leave out Clause 34; that is all we are discussing, and, as the noble Lord said, the matter was exhaustively debated in Committee. He sought to make a pea, if he will forgive the expression, on which to hang his hat of the two speeches by the noble and learned Lord Lord Wilberforce, and the noble Lord, Lord Tangley, in Committee, I think on a different clause, but including this Part of the Bill. As the noble and learned Lord, Lord Wilberforce, in his speech a few moments ago candidly admitted, his speech was a Second Reading speech about Part III of the Bill, and it is far too late to go into Second Reading points when we are on the Report stage. What, however, did emerge from the correspondence that I had with the noble and learned Lord, Lord Wilberforce, and the noble Lord, Lord Tangley, was really this: that apart from Second Reading points, which I do not think it would be advantageous to anybody to pursue further, two points of detail emerged. One was criticism of what is now Clause 36—not the clause we are now discussing, but what was, I think by coincidence, numbered 34 in the then numeration of the clauses of the Bill—and one was a criticism of what is now, I think, Clause 129, but was then, I think, Clause 125 in the then numeration of the Bill.
Both of those, I think, and certainly one of them, have already been dealt with by Government Amendments. It is therefore wholly incorrect in retrospect for the noble Lord, Lord Bernstein, to suggest that there is anything of a legal tangle in this Bill or that lawyers do not understand it. Obviously, in the context of legal draftsmanship there is room for difference of opinion. When I have ascertained what the difficulty afflicting noble Lords was I have done my best in subsequent Amendments to dispose of that difficulty, because I am grateful to anybody who can uncover a genuine ambiguity in the Bill.
As regards the policy, there is no question of a legal tangle at all. As anybody

845
could see quite clearly from Lord Donovan's speech in particular, he has reservations about the policy of the Bill, but they are not legal reservations. They are the kind of reservations which anybody who has discussed this problem, be he lawyer or layman, must have both encountered and solved for himself in one direction or another. They are therefore reservations of policy. The only thing I would say to the noble and learned Lord, Lord Donovan, is that both the Labour Government and we differed, although in different ways, from his recommendations and his present conclusions. Both the Labour Government and ourselves considered that legal enforceability of contracts had a part to play in industrial relations. Both of us thought, unlike the noble and learned Lord, that that was so. Both of us thought that if the parties did not wish to make it a legally enforceable contract they should not. The point upon which we differed from the Labour Government was that if the contract was in writing we would presume that the parties intended it to have legal consequence, and the Labour Government would presume the other way unless it contained an enforceability clause. In other words, the burden of presumption was different between the Labour Government and ourselves. Both differed radically from the noble and learned Lord, Lord Donovan. Indeed, I must remind the House that Mr. Andrew Shonfield seemed to have pretty considerable reservations about the majority of the Donovan Commission Report, and he himself was a member of that Commission.
As regards what the noble and learned Lord has just said. I would only say this in addition. One recognises that there would be a great deal of difficulty in enforcing existing agreements—that is what the noble Lord was talking about in the Report; agreements which now exist—because many of them are very much too vague to be enforced. The short answer to that is that we are not endeavouring to enforce existing agreements because the Bill is not retrospective in its effect. It is a presumption as to the intention to enforce future agreements. If, in fact, one of the results of the Bill is that the parties should express themselves more plainly in the kind of clear language which can be understood by everybody
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and which lawyers do not know how to use and ordinary men and women use so brilliantly, then I think the Bill will have achieved a very important result.
As regards what the noble Lord, Lord Hankey, said, of course I agree with him as to the necessity of having an authentic copy of any agreement. That is not limited to industrial relations; it applies to merchants and businessmen as much as it does to trade unions and employers. I am the last person to deprecate the practice of signing agreements when you have made them. In that way you do authenticate them. I have known, unfortunately, cases in which the parties make two copies of agreements and sign them, and then they are found not to compare exactly with one another. That does lead to misunderstanding. But I am not sure that any insertion in the industrial code would altogether obviate the practice, because it is obviously something which arises from human error on the part of negotiating parties. We cannot legislate against that. What we can do is to see that if an agreement is reduced to writing the presumption should be that the parties intend that it should have legal consequences. That we have done, and that is all that this clause is about.
If they do not want it to have legal consequences, they can say so and they are free of any. If they do not want it to have legal consequence, and the agreement is of the kind which it is better not to reduce to writing, as so many ordinary arrangements in human life are better not reduced, then they can leave it as an oral agreement or leave it to custom and practice. In that event Clause 34 will not apply. Even if it does apply, I must again say to the House what I think has not been said quite often enough, either from our Bench or from the Opposition Bench: that the ordinary rules in regard to the enforceability of contract will still limit the extent to which it can be enforced—the ordinary rules with regard to legality, the ordinary rules with regard to avoidance of uncertainty, the ordinary rules with regard to fraud, force or duress, the ordinary rules which in fact apply to any agreement between two honourable people seeking to make a bargain. The scope of this clause is therefore a limited one. We have, I think, discussed it at

847
very great length. I therefore suggest that we have now discussed it enough.
LORD PARGITER: My Lords, the noble and learned Lord the Lord Chancellor has put so many words into this matter showing how the clause would not operate, that it makes me wonder why he wants it at all. I should have thought that the number of excuses he has given and the number of cases he has cited in which it would not operate shows how limited is its usefulness. It would seem that any trade union negotiating any agreement at all would probably have as the first words of that agreement "This contract is not enforceable", because it is the trade union side which will object to the enforceability and it is the trade union members who generally will be in danger if it is an enforceable agreement. Therefore, for the protection of their interests it would be most unlikely that any contract which was worth while would be legally enforceable on the trade union side. It seems to me that while it may be better not to have any legal enforceability, it would be far better to have it in a negative form and leave it to the two sides to agree that an agreement is legally enforceable, after discussion on the basis of why it should be legally enforceable, rather than have it the other way about.
LORD CHAMPION: My Lords, we have had a debate which I think has been useful, excepting, of course, that we have not changed the mind of the noble and learned Lord the Lord Chancellor. That I was rather hoping we might be able to do, particularly in view of the discussions which have taken place between the noble and learned Lord, Lord Wilberforce, and Lord Tangley and the Lord Chancellor. The noble and learned Lord, Lord Wilberforce, has told us that some Amendments have apparently been put on the Marshalled List as a result of representations made to the Government by him. We shall come to those Amendments later. Frankly, I do not know what those Amendments are—that I shall be interested to learn—but I see that there are Amendments of some substance put down to Clause 36. I suppose those are the Amendments to which the noble and learned Lord alluded.
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It is understandable that the noble and learned Lord, Lord Wilberforce, felt that there was no useful purpose to be served in pursuing the thought which he expressed in Committee, that some more sensitive procedure ought to be adopted by the Government for dealing with industrial relations. My Lords, the more I see of this Bill and the more I hear discussions in this House, the more do I feel that the Government do not know what collective bargaining negotiations are all about and how they take place. The noble and learned Lord, Lord Donovan, as a result of his legal experience and of the long hours he spent in consideration of all these matters when he so admirably chaired the Donovan Commission, knows what collective bargaining is all about. I think he was quite right to say that a legally enforceable contract entered into by the parties to negotiations in industrial relations matters was a myth. A myth it is. Surely it is not for Parliament to persist in a myth or in trying to turn a myth into the sort of reality which will have some bearing on bringing about in this country the kind of industrial relations we all want. There is no dispute between the noble and learned Lord the Lord Chancellor and this Bench about whether we ought to have good industrial relations in this country. Of course there is not. We want to achieve that state of affairs and the only difference between us is that we do not think that this Bill will do it. We certainly do not think that this clause and subsequent ones dealing with collective bargaining will add anything at all or lead to what we wish to achieve; namely, better relations.
The noble and learned Lord the Lord Chancellor said that to some extent he agreed with the Labour Government who had included something about legal enforceability in their Bill. They did; but the presumption was entirely the other way round. That is the whole point. Surely, if the Government had included in this clause something on the same lines as in the Labour Government's Bill, half the discussion we have had about this clause would not have taken place. But there still would have been the difficulty which the noble and learned Lord, Lord Donovan, alluded to as the myth of trying to make the sort of collective agreement which takes place as a result

849
of the lengthy, often difficult and protracted negotiations—the agreement which follows those negotiations and eventually ends disputes or prevents them.
My Lords, I am sure that we are not going to persuade the Government to give way on this point, but once again I feel that it would be right for the House to express its opinion, and I invite my noble friends to accompany me into the Lobby in a protest against this particular clause and all that it leads to.
5.23 p.m.
LORD DIAMOND: My Lords, before we do that, I am still hopeful that we can rescue something from the wreck. That is the function of your Lordships' House. Those of us who have been privileged to listen to the speeches made this afternoon will no doubt share my view that we are being invited to try to do that. I agree that there is a fundamental difference of opinion as to the general approach to the problem which is embodied in this Part of the Bill, and the noble and learned Lord who sits on the Woolsack said that this was not a Second Reading occasion. That was generally the sentiment of your Lordships' House, but I am bound to say that it is not unimportant for those outside your Lordships' House to know what a wide and informed view there is as to the workability and good sense of this approach because we are debating the issue closely following one another's points of view and respecting them. But outside this House there will come a time when 8 million or 10 million people will have to decide whether they are going to accept the Government's view of the law or their own view of what the law should be, and no doubt they will be considerably sustained in that decision by the most authoritative opinions which have been expressed this afternoon. Therefore, it has been far from anything approaching a waste of time to hear such opinions expressed in your Lordships' House.
The noble and learned Lords who have contributed to our debate take two views about this clause. One regrets that he cannot support the Amendment because there would be a lacuna in the Bill. He feels that, although he would like to see a different approach, that opportunity has now gone by, and therefore he cannot support such a lacuna. The other noble
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and learned Lord did not feel disposed in the same way. What I am now about to do is to suggest a way out, having regard to the point made by the noble and learned Lord who sits on the Woolsack. The noble and learned Lord laid great stress on the fact that the Labour Government and the present Government has dissented from the Donovan Commission's Report and that both had proposals regarding legal enforceability. That is certainly true. The noble and learned Lord thinks that the proposals are sufficiently similar for him to have introduced this as an argument. I do not follow the noble and learned Lord's logic, but it is not for me to do that. It is for me to attempt to improve the Bill and to see where agreement may be reached; and if the noble and learned Lord who sits on the Woolsack thinks that there might be agreement, if not upon the Conservative Government's attitude towards enforceability then upon the Labour Government's attitude towards enforceability, it is not too late to do that. It is a very simple matter to do it; and I do it now.
I would propose by way of a Manuscript Amendment merely to make two minor alterations to this clause, and then we should not have a lacuna. I hope that it would be possible for me to do that. One of these Amendments would be that at page 27, line 12, where it says:
" is intended not to be legally enforceable "
we should leave out the word "not". The other is at lines 14 and 15, where the words are:
"…intended by the parties to it to be a legally enforceable contract."
Here I would propose that we just insert the word "not", so that it would then read
"…intended by the parties to it not to be a legally enforceable contract."
I suspect that if I were to pursue that suggestion I should be told by some of your Lordships that this is precisely the opposite of what the clause provides and that there might be certain technical and procedural difficulties in pursuing this course at this late stage. I leave it in the hands of the noble and learned Lord Chancellor, because he stated that the Labour Government and the Conservative Government both approached this in a similar way (I forget the exact words he I used), and I am now saying that we are

851
naturally anxious to compromise in whatever way we can.
Therefore, subject to the Rules of your Lordships' House, and having a desire to meet the situation in some way and wishing to avoid a lacuna which would be created if what I suspect many of us want were achieved, I should be very happy to proceed on the basis I have indicated. If the noble and learned Lord who sits on the Woolsack wishes to say a further word on this point I am sure that the House would wish to give him the courtesy of listening carefully to a second intervention on it. He has not given us any indication so far as to whether be wishes to do so.
THE MINISTER OF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (LORD ABERDARE): My Lords, I wonder if whether I might intervene, in order to save the noble and learned Lord on the Woolsack from making a second intervention. As I understand the position, it would not be open to the noble Lord to move an Amendment which referred to a page or line of Amendments which we have already passed. We are now on an Amendment to leave out Clause 34. Therefore, I am afraid that what he has suggested would be rather out of order. Of course there is a Third Reading stage, and perhaps the noble Lord may wish to pursue it then.
LORD DIAMOND: My Lords, I am grateful to the noble Lord for that intervention and I am glad that he expressed it as an intervention, so that I am not inflicting myself wrongly on your Lordships' House in continuing my speech. The position we have now reached is that it would he possible for a very short Amendment to be made to cover the argument of the noble and learned Lord the Lord Chancellor, but that, regrettably, we have gone a little too far to go back to it and deal with it now. We are now on an Amendment to leave out the whole clause, and not on individual Amend

CONTENTS

Addison, V.

Birk, Bs.

Champion, L.

Archibald, L.—

Blyton, L.

Chorley, L.

Ardwick, L.

Bowden, L.

Collison, L.

Bacon, Bs.

Brockway, L.

Delacourt-Smith, L.

Bernstein, L.

Buckinghamshire, E.

Diamond, L.

Beswick, L.

Burton of Coventry, Bs.

Donaldson of Kinsbridge, L.

ments to parts of the clause. I understand this, and accept it immediately.
I am making this speech to show that we can reach some measure of progress if the Government are prepared to help in this way. It is a totally different matter if people approaching an agreement, and wanting to make it stick (as all of us want to do), enter into it in good faith and say, "Now we have reached a bargain, let us shake hands on it." Then, having got so far, they say, "Now shall we make it legally enforceable or not?" If both sides do not agree to make it legally enforceable, the bargain is still there; hands have still been shaken, and if it was an agreement as a result of which a strike would be ended, the strike would end forthwith. If you had precisely the opposite approach to the present Government's approach—namely, the approach which was in the Labour Government's Bill, which got only as far as a First Reading, all that would he possible, and it would be for the individuals who did the negotiation to decide whether it was worth while to make the agreement legally enforceable—because legal enforceability does not mean all that much in practice. It creates a great deal of psychological difficulty, tension and disagreement—far more than is worth while, in view of what it can achieve. If people want to finish off their negotiations in that way, they can do that; if they do not then they can leave it.
My Lords, unless the noble and learned Lord who sits on the Woolsack is going to say that he will give this matter thought, with a view to introducing an Amendment on Third Reading, we are bound to divide your Lordships' House on the Question now before us. If he does not do so, then we shall seek the opportunity ourselves of doing so on Third Reading.
5.33 p.m.
On Question, Whether the said Amendment (No. 60H) shall be agreed to?
Their Lordships divided: Contents, 60; Not-Contents, 103.

Douglass of Cleveland, L.

McLeavy, L.

Sorensen, L.

Energlyn, L.

Maelor, L.

Stocks, Bs.

Evans of Hungershall, L.

Milner of Leeds, L.

Stonham, L.

Gardiner, L.

Moyle, L.

Summerskill, Bs.

Garnsworthy, L. [Teller.]

Nunburnholme, L.

Taylor of Mansfield, L.

Henderson, L.

Pargiter, L.

Walston, L.

Heycock, L.

Phillips, Bs. [Teller.]

Wells-Pestell, L.

Hilton of Upton, L.

Plummer, Bs.

White, Bs.

Hoy, L.

Raglan, L.

Williamson, L.

Hughes, L.

Rusholme, L.

Willis, L.

Jacques, L.

Sainsbury, L.

Wootton of Abingcr, Bs.

Janner, L.

St. Davids, V.

Wright of Ashton under Lyne, L.

Kennet, L.

Shepherd, L.

Leatherland, L.

Shinwell, L.

Lindgren, L.

Slater, L.

NOT-CONTENTS

Aberdare, L.

Essex, E.

Milverton, L.

Ailwyn, L.

Falkland, V.

Monck, V.

Albemarle, E.

Falmouth, V.

Morrison, L.

Allerton, L.

Ferrier, L.

Napier and Ettrick, L. [Teller.]

Alport, L.

Foot, L.

Northchurch, Bs.

Ashbourne, L.

Fortescue, E.

Nugent of Guildford, L.

Atholl, D.

Fraser of Lonsdale, L.

Oakshott, L.

Balerno, L.

Garner, L.

Orr-Ewing, L.

Balfour, E.

Gladwyn, L.

Poltimore, L.

Barnby, L.

Goschen, V. [Teller.]

Rankeillour, L.

Beaumont of Whitley, L.

Gray, L.

Rothes, E.

Belhaven and Stenton, L.

Grenfell, L.

Ruthven of Freeland, Ly.

Belstead, L.

Gridley, L.

St. Aldwyn, E.

Berkeley, Bs.

Grimston of Westbury, L.

St. Helens, L.

Bessborough, E.

Hacking, L.

St. Just, L.

Blackford, L.

Hailes, L.

St. Oswald, L.

Boothby, L.

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

Sandford, L.

Bourne, L.

Savile, L.

Boyd of Merton, V.

Hankey, L.

Selkirk, E.

Bridgeman, V.

Hastings, L.

Sempill, Ly.

Brooke of Cumnor, L.

Hatherton, L.

Sherfield, L.

Brooke of Ystradfellte, Bs.

Hawke, L.

Sinclair of Cleeve, L.

Buchan, E.

Headfort, M.

Skelmersdale, L.

Byers, L.

Henley, L.

Strange of Knokin, Bs.

Clwyd, L.

Hood, V.

Swinton, E.

Crathorne, L.

Jellicoe, E. (L. Privy Seal.)

Terrington, L.

Cullen of Ashbourne, L.

Killearn, L.

Teviot, L.

de Clifford, L.

Kilmany, L.

Thorneycroft, L.

Denham, L.

Latymer, L.

Vivian, L.

Drumalbyn, L.

Loudoun, C.

Wade, L.

Dundee, E.

Lovat, L.

Willingdon, M.

Eccles, V.

McFadzean, L.

Windlesham, L.

Effingham, E.

Massereene and Ferrard, V.

Wise, L.

Elliot of Harwood, Bs.

Merrivale, L.

Wrottesley, L.

Emmet of Amberley, Bs.

Merton, L.

Resolved in the negative, and Amendment disagreed to accordingly.
5.41 p.m.
Clause 35 [Presumptions relating to proceedings of voluntary joint negotiating bodies]:
LORD CHAMPION LORD CHAMPION moved Amendment No. 60J.
Page 27, line 23, after (" body ") insert (" of national or industry level ").
The noble Lord said: My Lords, the Amendment that I am now moving bears some relationship to one I moved to Clause 34. That Amendment was on
854
the point of a general disclaimer entered in a minute book or record of proceedings. This one has an important difference. In the case of the Amendment to Clause 34 I was concerned with the question of whether or not the lowly negotiating body should be permitted by a general disclaimer to avoid the farcical situation which can arise, and could arise, in connection with that clause. The point in this Amendment is that Parliament ought not to be trying to bring under the provisions of a clause of this character the lowly negotiating shop floor or depot committee. I still think that the Solicitor General was right when he said

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in Committee in another place that what the Government were trying to do was to catch the substantial and important collective agreements arrived at by substantial bodies. It is true that on Report he modified what he said in Committee about a general disclaimer not being applicable even in the case of the body, to use his words, of a humble kind; but even if he intended what he said on Report to indicate that he did not mean what he said in Committee about substantial bodies, it is undoubtedly the fact that he was talking good sense when he said that the clause ought not to apply to the substantial and collective agreements.
My Lords, the noble Lord, Lord Drumalbyn, said on May 17:
I shall of course be very glad to respond to what the noble Lord has said. It is worth pointing out that these subordinate bodies can act only within the authority which is conferred upon them. This may mean that the parent body can modify the authority which it delegates so that the subordinate body may only formulate recommendations which do not have the status of decisions and shall not be acted upon without prior ratification or confirmation at some specified higher level. This was the way in which we foresaw this difficulty being overcome; but, as the noble Lord has said, I am quite prepared to look at this again."—[OFFICIAL REPORT, 17/5/71; col. 178.]
The humble body visualised by the Solicitor General is the sort of body set up to deal with just the kind of matters which it would be quite impossible for the specified higher body to deal with on ratification or confirmation. Anyone with experience of the higher levels of trade union work will know that to deal with matters proper to a higher level results in such a clogging of the administrative machine as to make it impossible to supervise the day to day decisions of the sort of body at the humble level, delegation to which is vital to the operation of the trade union administrative machine.
Delegation is, of course, not only vital to the trade union administrative machine but also to the efficient running of every undertaking which is large enough to have procedure agreements and the like. I am moving this Amendment, not on behalf of a political Party, but in an effort to prevent Parliament making an ass of itself. This it will do if my Amendment, or something on similar lines, is not
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added to the clause. To tell the humble bodies—again to use the Solicitor General's words—that what they will be doing unless they are very careful is to make legally enforceable contracts would be to cause the law to be regarded with the utmost contempt in the generally accepted sense of that word. The bodies to which I am referring take decisions which are important in the context in which they are taken; but to have the presumption attached to them, or to agree that the presumption would not attach, that they should be legally enforceable is to make a nonsense of the whole thing.
For these reasons I hope that the Government will accept the Amendment or, if it is felt that the words "of national or industrial level" need amplification, that they will accept the principle and bring in something at the next stage of the Bill. I can well understand what the Government are after, and what they have decided and what this House has decided again by permitting Clause 34 to remain in the Bill. I know what they are about, but they ought not to try to apply something which ought in their minds to apply to the higher levels of negotiation which take place in industry. They ought not to say, "This must apply to every little body going down through the whole machinery which exists", despite the fact that so many of their decisions relate to trifles, but which might nevertheless be important trifles in the context of the negotiations which took place. To make legally enforceable contracts of them would be to make a nonsense of the whole thing. My Lords, I beg to move.
5.48 p.m.
THE LORD CHANCELLOR: My Lords, this is another subject which has been threshed out, I think, at least twice in another place and in Committee here and I am afraid it is impossible for me to say anything new about it at all. As regards the Amendment concerned, the noble Lord, Lord Champion, did, I think, indicate that the words are really so vague and so difficult, and would be so productive of argument, that once again we have an example of an Amendment by the Party which is eager to avoid legalism which would lead to a spate of disputes or potential disputes in the courts. I am not quite sure what is meant by "national" in this connection. Some people think that Wales and

857
Scotland and Northern Ireland are national for this purpose. I will not pursue the question whether they are or not. I am not quite sure what an "industry level" is, whether the textile industry must be treated as a whole or whether it is to be divided into its numerous component parts, from the raw state of the yarn to the last stage of printing.
The truth is that the noble Lord's Amendment is based, like many of the other views which are put forward from the Front Bench opposite, on too simpliste a view of negotiating machinery. According to him, everything which is not at the industry level, or national level, is a humble little body of every kind. There are the sheep on one side at the industry level and the national level, and all the rest are humble little bodies. This is not so. There are bodies which are regional; there are bodies which cover thousands of workers and which are not humble little bodies.
The right test, in my submission, to be applied is the test that is formulated in the Bill. First of all, you have to make up your mind whether the body is an executive body or not. If it is not an executive body, it clearly does not come within paragraph (a) or (b) of subsection (1) of Clause 35 because it would not then have the power of regulating; it would not exist for the purpose of regulating or determining anything. Secondly, it must have the authority, as my noble friend Lord Drumalbyn pointed out in Committee, of the parent bodies to act in the way in which it purports to act. That, clearly, is a limitation on what can be done. Thirdly, if it does act, as many of them do at shop floor level, by making an informal arrangement that is not recorded in writing but forms the basis of a practice which grows up, and which is very convenient, it need have no concern at all as to whether what it does has legal consequences of the kind envisaged in Clause 35, because Clause 35 applies only to agreements in writing. As regards agreements now in force, it has no application at all, because the clause is not retrospective in its effect.
What the clause purports to do is to say that where you have an executive body charged with the function of regulating the terms and conditions of employment, or determining any matters for which a procedure agreement can arise,
858
then that body, whether it is a humble little body or not, if it wishes to come into a written agreement must ask itself the question whether it wants that written agreement to have legal consequences or not, and, if it does not, must insert a disclaimer clause. I do not agree that this is a foolish or nonsensical provision to ask Parliament to insert in an Act; nor has anything that the noble Lord has said persuaded me that that was so. Both in Committee and again this afternoon, he referred to words of the Solicitor General, but I think on both occasions he got them wrong. Let me remind the House what the Solicitor General said.
In Committee he said:
" It is not intended to catch every small humble, albeit important, body of that kind "
referring back to what had been spoken of—
" so that it cannot make its own decisions about the extent to which it would be bound."
This is exactly what I have been saying this afternoon, although I think it could have been more felicitously put. It is only by ignoring that last provision,
" so that it cannot make decisions about the extent to which it can be bound ",
that the Lord Champion, was able in Committee, to make any use of those words. On Report the Solicitor General said the same thing, after admitting that what he had said was not altogether felicitous. He said that, which is the same thing:
" The position remains that many bodies of a humble or modest sort will decide that they will always be dealing with such routine matters that they do not intend to give legal force to agreements at which they arrive, but they will still have to report their intention with reference to each decision as required by the rules."
That is what the Solicitor General said. I agree with the noble Lord, Lord Champion, that in neither event can it be described as anything other than he described it: as sound sense; but it is not compatible with the Amendment which the noble Lord has proposed, an Amendment which, I regret to say again, it is my duty to ask the House to reject.
LORD CHAMPION: My Lords, the noble and learned Lord has said—and I have admitted this—that the words used were perhaps so vague as to be productive of argument. Yes, I admit that. What I must say about it is that the words used in the Amendment are words that will

859
be known to everyone who participates in negotiations on behalf of the trade union movement or on behalf of industry. They know whether a thing is a matter for a national or industry level, or whether it is a matter for a local level, or some level other than a national or local level. There is no doubt at all about that. These words are well known within the trade union movement, and I am sure that they are known on the other side of the table when negotiations are started.
I still feel that the Solicitor General was right. The noble and learned Lord, at the opening of his speech, poured some scorn on my use of the words the "humble body". Of course the words were used by the Solicitor General, and it seemed to me to be right that I should pick them up and use them here. The words were not, as he said, felicitously expressed, but the sense behind it was. It was good sense that the Solicitor General was talking in Committee; it is not good sense that the noble and learned Lord has spoken this afternoon in rejecting the Amendment. However, I do not intend to ask my noble friends to divide on this Amendment, and in the circumstances I ask leave to withdraw it.
Amendment, by leave, withdrawn.
5.57 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 60K:
Page 27, line 29, leave out ("(whether made before or after the commencement of this Act)") and insert ("(made after the commencement of this Act)").
The noble Lord said: My Lords, the point of this Amendment is to ensure that any possibility of retroactivity is eliminated in relation to the sort of joint body dealt with in this clause. If the Amendment is agreed, it would result in every joint body set up after this Bill becomes an Act being set up in the full knowledge that this clause would apply to it. I am very much a supporter of joint bodies of the sort envisaged in this particular clause, for they do undoubtedly bring order and a civilised way of proceeding into industrial negotiations, and they ought to be encouraged to remain in being. My fear is that this
860
clause might have the opposite effect to the one I should like to see and that I am sure the Government desire.
Let me put it this way: if I were a trade union leader strongly opposed to the addition of the legally enforceable contract, and a party to the sort of joint body visualised in this clause, I would, immediately upon this Bill becoming operative, give notice to terminate the procedure agreement which had set up the joint negotiating body. Such a course might well mean a reversion to the law of the jungle, something to be welcomed only by those who are out to destroy industrial harmony and the retention of an element of reason in industrial negotiations. In the sort of case I am postulating it would be no use saying to a trade union leader, "Subsection (4) enables such joint bodies to agree that their decisions need not be legally enforceable contracts", because he would retort that if only one of the parties sought to make the decision not legally enforceable and the other party would not agree, the decision of such a body would automatically have effect as a legally enforceable contract. Such bodies as are talked about in this Bill ought not to be put at risk because of a failure to agree on enforceability.
In the Committee stage debate on this clause—then Clause 33—I described at some length the various levels of the machinery of negotiation in the railway industry. Then I asked which parts of the machinery I described would fall within the terms of the clause. The noble Lord, Lord Drumalbyn, was kind enough to write to me telling me that of the parts of the machinery I then mentioned, the Railway Staff Joint Council and the higher Railway Staff National Council are joint negotiating bodies to which this clause would apply. Those bodies helped to bring order and harmonious relations into the railway industry. Certainly it is in the interests of the industry and of the country to preserve them. The memorandum of agreement setting up this machinery of negotiation was signed in May, 1956, which means it could never have entered the minds of the signatories to that memorandum of agreement that what they were signing might lead to the decisions of the bodies I have mentioned being legally enforceable contracts.
If this clause goes through in its present form, in the event of a disagreement about enforceability—and there are four parties to the original memorandum of agreement, and four parties may be engaged at the same time in the same set of negotiations—it may well be the case that instead of the Chairman of the Railway Staff National Tribunal deciding the interpretation of agreements and awards and like matters we shall see railway agreements being dragged through the Industrial Court and, if the noble Lord, Lord Tangley, was correct in his views expressed in Committee, also being dragged through the ordinary courts of the land, despite the unsuitability of such courts for that task.
What I would stress in this connection is that there may well be four parties trying to achieve an agreement about the location of money that is available for distribution as between the parties to the agreement. That in itself is difficult enough, but if one is going to add to that argument a further argument as to whether the eventual agreement or decision is or is not to be a legally enforceable agreement, clearly one is going to add greatly to the difficulty that will inevitably exist in the ordinary negotiations.
In such a case as I am postulating, all four of the parties to the agreement will have to make the decision on whether it is "not legally enforceable"; they would all have to do it if it is to work in that way. If I were at this time the General Secretary of the National Union of Railwaymen and carrying the support of my executive in a determination to support the T.U.C. in its opposition to this Bill when it becomes an Act, immediately the Bill received the Royal Assent I would give notice to terminate the machinery of negotiation. Then, if I particularly wanted to see the kind of joint body I have mentioned continuing in operation, I would seek the agreement of the railway authority to that course, but only on the understanding that in the event of disagreement as to the desirability of the legal enforceability of any decision of the bodies I have mentioned, it would be a clause in the new machinery of negotiation agreement that all its decisions would not be legally enforceable unless specifically agreed upon. The effect of that would be to reverse the
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presumption and reinstate the standard practice in relation to contracts generally.
That is the sort of upset which would be avoided if my Amendment were accepted, for it would cancel out what is a wholly undesirable feature of this particular clause—that is, its retroactivity, which I am sure the Party opposite do not like. They do not like it when it applies to almost anything that is ever done by Parliament. I have heard the objections the Party opposite have made to it when sitting on this side of the House. The same thing applied in the other place.
I do not think that this clause should be worked in such a way that it would be retroactive. I believe that if the clause is going to stand it ought to do so with my Amendment included in it, which would cancel out and prevent the situation arising which I have visualised as a possibility under the terms of the clause as it now exists. I beg to move.
THE LORD CHANCELLOR: My Lords, it is a sad task to have continuously to say "No" to the noble Lord, Lord Champion, and I hope I may do it as gracefully as the inherent practical situation between us permits; but I am afraid that it is "No" again, and I shall endeavour to show that it is another Amendment which would, in its effect, he a wrecking Amendment.
The noble Lord said at the outset that the object of his Amendment was to deprive the clause of any form of retroactivity. He rightly said that the Party to which I belong and to which my colleagues belong always rather tends to reach for its six-shooter when there is any degree of retroactivity in legislation. As a broad generalisation, I think that is the truth, but of course there is no retroactivity in the clause as it is at present drafted. Therefore, in that respect the noble Lord is tilting at windmills. The clause bites only on agreements which are made after the commencement of the Act. Therefore there is no element of retroactivity in it. It is true that the clause bites also on existing bodies who make those agreements, as it does on any bodies which may come into existence in the future. But so does all legislation. The noble Lord does not insert a new Amendment in any of our other Bills to

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say that this Act shall have effect only as regards persons born after the commencement of this Act. That would be to make nonsense of any enactments. Yet for some reason he thinks it reasonable to try to apply this clause only to negotiating bodies which are born after the commencement of the Act. We have prevented retroactivity by making it apply only to agreements made after the commencement of the Act by negotiating bodies, whether they are now in existence or not. As the effect of the Amendment would be to deprive the clause of any application to existing bodies it would destroy the value of the clause for a very large number of years to come. It is therefore fairly described as a wrecking Amendment.
The noble Lord has said that if he were acting in a negotiating capacity he would terminate existing arrangements. It would not be necesary for him to do that; it would only be necessary for him to insist on the insertion of a disclaimer clause in any future agreement which he might make—and that I hope he would not do, because sooner or later, when the Labour Party and others have got rid of their blind hostility to this Bill, I hope on general reflection, light will slowly begin to dawn upon their minds. Broadly speaking, agreements between employers and employees as the result of negotiations are for the benefit of the employed. That is how they came into effect. If they were not to give that effect, which has now gone on continuously for nearly 200 years, there would be no need for trade unions; that is what trade unions are about, to insert into agreements with employers terms which are for the benefit of the employed. One day it will begin to dawn upon them that it will be to the advantage of the employed to make the terms in negotiated agreements enforceable against an employer. But no doubt we shall have to allow the dust of conflict to settle for a few months before that comes to be openly stated.
LORD CHAMPION: My Lords, the noble and learned Lord said that it was a sad task to say No "to me, but I think it is a sad task for me to have to argue with the noble and learned Lord. This seems to me to be an Amendment which is well worth while. I felt that to make the
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clause bite on all existing bodies which had been set up in circumstances other than those envisaged in the Bill was not the proper thing to do. That was precisely the point of the Amendment and that is why I moved it. But I do not feel that this is an Amendment upon which I am prepared to ask my noble friends to divide and, in the circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
THE LORD CHANCELLOR: My Lords, I have some record of a Manuscrip Amendment to page 28, line 19. I do not know whether it is the intention of any noble Lord to move one.
LORD CHAMPION: My Lords, I think there was some error made here by the Office, but I do not blame them for that. The intention was that there should be a consequential Amendment on similar lines, but, in the circumstances, I have no intention of moving a Manuscript Amendment at this point.
THE LORD CHANCELLOR: My Lords, I am much obliged to the noble Lord.
Clause 36 [Breach of collective agreement]:
6.12 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 60N:
Page 28, line 27, at end insert (" unless there is reasonable justification ").
The noble Lord said: My Lords, I think we can discuss Amendment No. 60P with this Amendment. The whole purpose of Clause 36 is to declare a breach of a collective agreement an unfair industrial practice leading to the penalties provided for elsewhere in the Bill. A decision on this matter will have to be taken by the Industrial Court, which I take it will have to decide whether or not there has been a breach and what penalty is appropriate. The breach may take one of many forms, but the sort of breach I have in mind is the immediate and spontaneous revolt against the conditions which are found in some industries. An outstanding example of this may be found in the mining industry, where conditions at the coal face may be such as to cause men to walk out in protest. In other industries, also, there are

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conditions which are judged by the men concerned to be so dangerous as to cause spontaneous and reasonable action. Bad working conditions are to be found from time to time in most industries and, like the dangerous situations which I have mentioned, they lead men to walk out in protest which, in the circumstances, is eminently reasonable action. Most of those situations arise in circumstances where the negotiating machinery, with its timetable of meetings and the possibility of appeal to higher stages, may be quite useless and only an immediate walk-out can provide an effective remedy. These conditions are known to everyone employed in factories, in mines and so on.
What we are seeking to do by these two Amendments is to give some guidance to whoever may feel like bringing an action to the Industrial Court, as well as trying to give guidance to the Industrial Court if such an action is ever brought. The word "reasonable" is to be found in many places in the Bill and it would not be difficult to interpret; indeed, the word is to be found in line 36 on page 28, and would normally have applicability to the kind of circumstances that I have mentioned. There are circumstances when the immediate walk-out is reasonable, and I believe that it would be well to insert the word "reasonable", as provided for by these Amendments, for the guidance of anyone who might feel like bringing an action, or for the Industrial Court which would have to take a decision. My Lords, I beg to move.
LORD SLATER: My Lords, I should like to add my support to my noble friend Lord Champion. Strange to relate, while I was having tea I was thinking about the sort of case which my noble friend has mentioned. In the mining industry, there are mining engineers who have taken a B.Sc. They go to a colliery, with all the theoretical experience which they have gained through studying their text books and so on, but they have no practical experience whatever. Noble Lords have heard me say that I went straight from the coal face to the other place. I have had a mining engineer, with no practical experience whatever, telling me, with my years of experience at the coal face, "I think you ought to do this", and I have said: "I am not prepared to do that, because I know what the consequences will be. If I timber this
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place as you are now asking me to do, it will not be safe and in all probability there will be a fatal accident as soon as I try to extract this commodity from Mother Nature". But the engineer could not see it that way and he thought he had all the knowledge. If an individual has "B.A." or "M.A." after his name, that does not mean that he has all the answers to the problems which will beset him in industry.
Let me give another simple illustration by telling your Lordships of something which I have heard about in the last three weeks. In this case there was a motor mechanic who had been able to get his City and Guilds through his evening studies. That young man could take up a teaching appointment and could pass on his knowledge because of the formal study which he has undertaken and which has been responsible for him getting his City and Guilds. But his practical experience inside that establishment is not of such a nature that he can be left on his own to conclude the work that has been assigned to him by the foreman of that department, with the result that the foreman has to watch him all the time. Yet the foreman has not got such a certificate because he did not undertake such studies. From the point of view of practical experience he knows a car from, as it were, the first pin right to the last part of that particular machine, and he has had to go over the repairs that have been carried out by this young man who has been successful in achieving for himself his certificate, his City and Guilds.
I am not decrying at all the knowledge that this young man has, or the mining engineer, or their Bachelor of Science degree, because I am all for it. But it must never be overlooked that in heavy industry danger can present itself when management which has just come out of the university and has been assigned responsibility attempts to pass on its knowledge to the individual who has lived his life in that type of occupation and has graduated in it. After all, I would have your Lordships remember, anyone who has come away from heavy industry and who started from the bottom, as it were, seeking to climb the ladder as we climbed the ladder, has come away from being little trap boys up to being drivers, away from drivers to putters and away from putters to working at the coal face

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and producing coal. When you have had all these years of experience, and when you get somebody coming in to you and saying, "Do it this way"—well, my Lords, it does not work that way. On the other hand, I have travelled into other parts of this country and I have seen many such young engineers, and I am all for this. Make no mistake about it! I do not want to be misunderstood.
But one thing we have always to bear in mind is the practical side and the experience that comes to people who have been attached to an industry for many years, as against the theoretical side which comes from textbook study. On the other hand, there is the situation—and I am all for it—where young men have been put out in the field as young engineers. They have had to start at the bottom and climb the ladder, and it is only after years of experience that they have been able to achieve what is expected of them and take on the responsibility. But it is different in the situation that I have already cited in a heavy industry like mining—and it is because my noble friend mentioned mining that I raise this point. If, because of my experience and because I know full well as a practical person inside the mining industry what could happen, I were to refuse to do what I was being advised by the management, there would be only one course open to me. If I thought that life was too sweet to want to be killed, which I was sure would happen if I were to accept such advice, I would have to walk out probably taking other people with me, and stand to receive notice because of the action I had taken. It is because of that experience, and because of knowing what could happen, that I give my support to the Amendment which has been moved by my noble friend.
THE LORD CHANCELLOR: My Lords, on this occasion, at least, I do not think there is any difference of principle between the noble Lord, Lord Champion, and myself. The noble Lord, Lord Champion, wanted to protect from liability to proceedings for an unfair indusrial practice cases of a breach of agreement which resulted from what he described as a spontaneous revolt against bad conditions of work, or it may be dangerous conditions of work; and I absolutely agree with him that that is
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something which ought to be provided for. I think that the noble Lord, Lord Slater, in the speech that he made, was really making the same point from his own standpoint of experience in his own industry, although I would not pursue him the whole way in the age-long classic confrontation between practical experience and academic knowledge. There is a case on the other side, but I do not think it is relevant to the point that I am now making, so I will not pursue it.
I am wholly at one with the noble Lord, Lord Champion, when he says that this sort of thing ought not to be the subject of successful proceedings against those who indulge in it. The only answer I make to him is that I am quite satisfied that the Bill protects him better already than the noble Lord's Amendment would. Curiously enough, we had this debate at the Committee stage, but at that stage the main participants (apart, I think, from a participant on the Liberal Benches) were professionally qualified lawyers, and they raised exactly the same point in terms of legal expertise. The noble and learned Lord, Lord Gardiner, was one, the noble Lord, Lord Stow Hill, was another, and I think the noble and learned Lord, Lord Donovan, was a third. They raised the point in terms of legal expertise, which caused me to reply to it in language which was adapted to the particular way in which they had put their case. But may I come back to the essence of the case in language of a less technical kind, which I hope will be more plain.
If your Lordships will look at Clause 101 of the Bill (Clause 101 is the relevant one for this particular Amendment, but Clause 102 would do equally well for this purpose) you will see that if anybody wants to go to the Industrial Court and complain of an unfair industrial practice he will not get an order, he will not get satisfaction, unless he can prove to the satisfaction of the Court—and this is subsection (2) of Clause 101—that it would be just and equitable to give him his remedy. The Court has to be satisfied that his grounds for complaint are well-founded. For reasons which I gave at much greater length at the Committee stage, I am of the opinion that that protects the worker or the union far more completely than this Amendment would, for this reason. Quite clearly, in the case

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of unreasonable or dangerous working conditions the Court has to be satisfied, before it gives any of the remedies, that it is just and equitable to do so; and it is for the complainant—that is to say, for the employer in the postulated case—to satisfy the Court that it is just and equitable. In other words, the burden of proof is on the employer.
Now under the noble Lord's Amendment, which reverts very closely to the Amendment previously moved by the noble and learned Lord, Lord Gardiner, who wanted to reintroduce the legal conception of justification into this clause, the burden of proof would undoubtedly be on the other side; that is to say, on the union, to justify its breach of contract. In other words, the effect of it would be to weaken Clause 101, which is there for the protection of the respondent to the complaint, and not to strengthen it. Although I know that from the non-professionally qualified lawyer's point of view this looks a much more pliable instrument in Clause 101, much more vague, it is in my considered opinion much stronger, because the whole doctrine of the law of equity in its technical sense is introduced into Clause 101, which means that unless somebody comes with clean hands to ask for his remedy he will not get it at all. It introduces the whole tradition of the old law of equity, originally dispensed by Lord Chancellors, in order to get out of the rigours and rigidity of the common law in defence of somebody who may be attacked for an unfair industrial practice.
I beg the House to believe what I said in Committee when I invoked this doctrine against the professional lawyers on the other side. I am quite sure that that is what the Government want to happen. Whether one does it in this way or in the other way, it is a question of judgment as to which is the better. I prefer the way in which we have done it, basically speaking, because the burden is on the complainant throughout before he gets his remedy at all and is not on the respondent to justify what he has done, for which purpose the burden would be put back on to him. This Amendment is to reintroduce the cruder and less certain doctrine of the common law of justification against the tort of inducing a breach of contract, instead of relying on the more flexible weapon of
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equity which is always turned in principle against the person who asks for something to which he is not reasonably entitled. Although, therefore, there is no difference in objective between the noble Lords, Lord Slater and Lord Champion, and myself, I believe that we have done it more efficiently than the way in which lie now proposes.
LORD CHAMPION: My Lords, I am grateful to the noble and learned Lord for the way in which he has dealt with this Amendment. My noble friend Lord Slater brought to bear his practical experience, an experience which I do not happen to have, of working in the mines; but I live close enough to them to know something of what goes on. I do not want to make a long speech on this. It is a joy to find the noble and learned Lord and I at one on what is behind this Amendment. It is not for me to argue as between lawyers on which is the sounder of the two methods. The noble and learned Lord occupies a very high office; lie has the advantage of tremendous resources to call upon in assisting him in the preparation of his answers to these questions. I am bound to say as a non-legal, non-technical, man that I accept completely what he has said about Clause 101 and the fact that, in the way that he has put it, the Bill provides a better protection than we should provide by this Amendment. In these circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.33 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 60Q:
Page 28, line 32, after (" agreement ") insert (" other than a procedure agreement made by order of the Industrial Court under section 41 of this Act ").
The noble Lord said: The Amendment that I am moving we regard as one of substance. As the Bill stands at the moment there is this "policing clause" as it has been called. This clause is generally regarded as being one of the most objectionable features of the Bill—certainly by those on this side of the House and by the trade union movement generally. Reading this clause alone and relating it to the previous clauses, there appears to be some justification for imposing on parties to an agreement an

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obligation to use their best endeavours to see that the agreement is not breached. There is some sense in that. But what worries me in relation to this clause is the fact that something other than a truly collective agreement is brought within its scope.
In Clauses 37 to 43, headed "Remedial action where procedure agreement non-existent or defective", there is provision for the Industrial Court to force upon unwilling parties a procedure agreement; and in Clause 41(2) the court in making such an order directs as part of the order of the court that the provisions of the procedure agreement
" shall have effect as a legally enforceable contract, as if a contract consisting of those provisions had been made between those parties."
That subsection is further alluded to and enforced by subsection (3) of Clause 162 which interprets the meaning of "collective agreement" and "procedure agreements". Clause 162(3) reads:
" In this Act any reference to a collective agreement shall be construed as including a reference to any provisions which, by virtue of an order under section 41 of this Act which is for the time being in force, have effect as a legally enforceable contract in accordance with subsection (2) of that section, and any reference to a party to a collective agreement shall be construed accordingly."
Thus, under this procedure, the union is liable to compel its members to observe a procedure which perhaps the union has deliberately rejected. If the union must also act as policemen of the court vis-à-vis its own members under the provisions of Clause 36, you have the absurdity of an arrangement which is an order of the court being held to be a contract when it has not been agreed to by the parties at all. If the parties had wanted the procedural arrangement contained in the order of the court, it would never have got to the stage of its being an order of the court at all. It would have been cut off at the Commission stage.
I am not quite sure to what extent Amendment No. 61 in the name of Lord Drumalbyn will mitigate the anomalous situation created by Clauses 41 and 162. Clearly, subsection (1) of Clause 36, making it an unfair industrial practice for a party to break a legally enforceable
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contract (which under the clauses I have mentioned an order of the Industrial Court will be deemed to be) will continue to have effect. If I read Amendment No. 61 aright it will relieve a union of the policing provisions of subsection (2) in a case in which the union has not given an undertaking to police an agreement, which will be the case in an order of the Industrial Court.
The doubts I have in mind on this aspect of my objection to Clause 41 will have to be cleared up when we get to Amendments Nos. 60T and 61. If I am right about my reading of Amendment No. 61, relieving the union of the task of policing something which is not an agreement at all, we shall still be left with the wholly illogical situation in which an order is deemed to be an agreement. This is really extraordinary and wholly illogical: an agreement that must not be broken by a party to it who, by no stretch of the imagination, is a party to it at all simply because it is an order of the court. I agree that any court must have power to enforce its decisions; but let us try to make it look a logical and sensible way rather than by the devious methods of Clause 41 and subsection (3) of Clause 162.
I think that this is an important Amendment. Unless the noble and learned Lord can satisfy me about the issue, I shall have to ask the House to divide against this particular aspect of this clause and to support me in the Amendment which I have moved; but I have yet to make a decision about that. Clearly, I shall have to hear the reply of the noble and learned Lord. I realise that this is not a very easy point to put. I hope I have made clear to the House the purpose of this Amendment. I believe it makes good sense. I beg to move.
6.40 p.m.
THE LORD CHANCELLOR: My Lords, I agree with the noble Lord, Lord Champion, that this is an important Amendment. I also rather despair of being able to give him the reassurance that he wants because I suspect that the more I explain the effect of the clause and the effect of the Amendment the more likely it will appear that there is a difference of policy between us which it would be pure hypocrisy on my part to try to paper over. I therefore have

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to explain exactly what we are about in this clause, exactly what effect the Amendment would have upon it and to justify the policy we are trying to pursue. I rather fear that the policy will not be acceptable to the noble Lord, but I hope that my reasons may yet persuade him and his noble friends that what we are about is both reasonable and just.
The noble Lord's purpose in this Amendment was perfectly plainly and candidly stated in his opening. What he said, broadly speaking—I am paraphrasing him and not quoting him but I think that I am paraphrasing him fairly—was this: "All right, you have got an agreement which is enforceable and a breach of the agreement will be an unfair industrial practice. That is reasonable enough if you accept your premises"—the noble Lord is addressing me "that where parties agree, they should be kept to their bargain. But under Clause 41 of the Bill, the parties can be bound by something to which they have never agreed and therefore it is not a bargain between them. Therefore you have no right to describe it as a breach of such an arrangement"—I dare not use the word "agreement", it would be begging the question—"it is quite unfair to provide that such an arrangement should be enforceable through the procedure which invokes an unfair industrial practice."
The noble Lord's interpretation of Clause 41 is perfectly correct. It is our intention, after the ritual which is prescribed by Clauses 37 to 40, to give the Court power to impose on the parties obligations which they have not agreed to, and to which they will be expected to adhere. I quite agree with the noble Lord that, as a matter of language, such an arrangement is not in any sense of the word an "agreement" between the parties. This is perfectly fair, and indeed Clause 41 says as much because it says it shall have the same effect as if it had been agreed; which means, of course, that it has not been agreed.
So let us start with a perfectly candid statement of what is the policy of the clauses. We intend in certain circumstances, after certain steps have been taken and certain safeguards have been observed, that the parties in industry shall have obligations imposed on them by the Court; that is to say, improved
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procedure provisions recommended to the Court by the Commission on Industrial Relations. But let us consider whether that is intrinsically unjust. The first thing to look at is Clause 37. The whole procedure cannot be instituted unless the party applying for the procedure can apply to the Court on grounds that either there is no procedure agreement in force between the parties at all—in other words that one or both of the parties lamentably failed to create for themselves those voluntary arrangements which we all agree to be best—or, if they have got a procedure agreement, that recourse has been had by the employer by way of lockout or the trade union by way of strikes or other irregular industrial action, contrary to the terms or intention of the agreement. In other words, before you can start at all, either the parties must have failed of their own accord to come to an agreement, or they must have habitually broken it. Those are the only situations in which the procedure can even be brought off the ground.
The next thing is that before the Secretary of State can introduce an application of this kind—he is not the only party who can do so—he must consult the parties. In other words, he must try to arrive at a reasonable solution without going to Court; and the Court is expressly prohibited from entertaining an application under this clause by a party other than the Secretary of State unless the Secretary of State is given notice of the proposal. Then he has an obligation imposed on him to offer such advice and assistance to the party giving notice, and to the other parties, as he may consider appropriate, with a view to promoting agreement with them on the matters to which the application would relate. For that purpose he may refer any question relating to those matters to the Commission. In other words, before the procedure can be put into operation, first, one of the two conditions I have described must obtain; and secondly, every attempt must have been made with the precise object of getting a voluntary agreement between the parties.
Only after that has failed is a reference made to the Commission on Industrial Relations. Even then nothing happens for the time being; nothing is imposed on the parties against their will,

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because the Commission then has to satisfy itself by Clause 39 (apart from the size of the unit of employment which I will not got into) that the unit concerned does suffer from one or both of the evils which are necessary before the procedure can be brought into effect. In other words, either there is no procedure agreement in force or the parties have been habitually breaking the one which exists. Only after that can the Commission go any further. Thereupon under Clause 39(3) it has again to
" promote and assist discussions between the parties to the reference with a view to obtaining their agreement on new or revised provisions…. so formulated as to be capable of having effect as a legally enforceable contract."
In other words, the Commission has then to try again to create agreement between the parties. If it is satisfied that a result can be obtained—that is to say, that peace and order can be restored without a compulsory order—then it has to stop and report to the Industrial Court. That is provided for by subsection (4).
If it fails altogether it goes under Clause 40 and reports its recommended new or revised provisions to the Court. Then the Court has to lock at what is proposed, and its powers are limited to the powers laid down in Clause 41. Even then the Court has a negative discretion because Clause 41 provides that
" unless the Industrial Court is satisfied that an order under this section is not necessary for the purpose of securing acceptance and observance of the provisions recommended in the report the Court shall make an order."
In other words, the Clause 41 arrangement which is imposed ex hypothesi without the consent of the two parties is one which can be imposed first, only when there is a condition of anarchy in the industry; and secondly, when every possible step at every stage which could be taken to make peace without the use of the enforced arrangement has been taken.
I tell the noble Lord, frankly, that it is the policy of the Government, in the interests of the industry, in the interests of the public and of other people outside the industry who may be damaged by the continuance of a condition of anarchy, that when the last resort has to be taken, after every other possibility has been explored and found useless, an
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arrangement of this kind should be imposed upon both sides in the unit of employment in question. I recognise that there are people who think that that will be ineffective or who think that one ought not to try to do it. I do not have the smallest sympathy with those who say we ought not to try. To those who think that it will be ineffective, I can only say that I respect their view but there is only one way of testing it—that is, by trying.
I agree with the noble Lord, Lord Champion, that this is an important Amendment. In the end, it would stultify the whole effect of the elaborate provisions in Clauses 37 to 41 if we were not in the last resort to provide the sanction of an unfair industrial practice for parties who, in the face of all those efforts to arrive at a voluntary agreement, deliberately break and ignore the procedure provisions imposed on them by the order of the Court. This is the policy of the Government. The Amendment is not a question of form or drafting or achieving the same end by other means. It is the policy of the Government to do what I have described, with the safeguards I have described. The noble Lord must take his course about this. I hope that he will feel that I have been perfectly honest with him. I have no doubt in my mind that what we are doing is right.
6.51 p.m.
LORD CHAMPION: My Lords, the noble and learned Lord has said that there is profound disagreement between us about this issue, and there still is. I listened carefully to what he said. I did not want him to go over the whole argument that we shall have on subsequent Amendments, but I rather hoped that he would tell us whether the Amendments of the noble Lord, Lord Drumalbyn, would mitigate to some extent the effect of this clause.
THE LORD CHANCELLOR: My Lords, I apologise to the noble Lord for not having dealt with that point. It was my intention to describe the effect of the Amendments when we came to them. I think it would be fair for the noble Lord to assume that the Amendments will not mitigate this particular situation. It may be that I over-simply the position and it may have to be corrected by something I say later, but the noble Lord must make

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his decision on the assumption that it will not be mitigated and we shall see how far that is justified.
LORD CHAMPION: My Lords, I am grateful to the noble and learned Lord for clearing up this point. What it amounts to its that under this clause, Clause 41 and the Interpretation Clause, to which I referred, we shall have the situation that a legally enforceable contract, though not a legally entered into contract at all, will be forced on the trade union, in the case in which I am particularly interested. The trade union will then have to take the steps outlined in subsection (2) of this clause, which means that the trade union will be expected to police something which has been forced upon them by Clause 41. This is wholly unreasonable. It is wholly objectionable that in the circumstances I have outlined

CONTENTS

Addison, V.

Gardiner, L.

Rusholme, L.

Archibald, L.

Garnsworthy, L.

Sainsbury, L.

Ardwick, L.

Greenwood of Rossendale, L.

St. Davids, V.

Bacon, Bs.

Henderson, L.

Shepherd, L.

Bernstein, L.

Heycock, L.

Slater, L.

Birk, Bs.

Hilton of Upton, L.

Stocks, Bs.

Blyton, L.

Hoy, L.

Stonham, L.

Bowden, L.

Hughes, L.

Stow Hill, L.

Brockway, L.

Janner, L.

Strabolgi, L.

Buckinghamshire, E.

Leatherland, L.

Summerskill, Bs.

Burntwood, L.

Lindgren, L.

Taylor of Mansfield, L.

Champion, L.

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

Walston, L.

Collison, L.

White, Bs.

Davies of Leek, L.

Longford, E.

Willis, L.

Delacourt-Smith, L.

Milner of Leeds, L. [Teller.]

Wright of Ashton under Lyne, L.

Diamond, L.

Peddie, L.

Energlyn, L.

Phillips, Bs.

Wynne-Jones, L.

NOT-CONTENTS

Aberdare, L.

Crathorne, L.

Hylton-Foster, Bs.

Ailwyn, L.

Cullen of Ashbourne, L.

Ironside, L.

Albemarle, E.

Denham, L.

Jellicoe, E. (L. Privy Seal.)

Allerton, L.

Drumalbyn, L.

Killearn, L.

Amory, V.

Dundee, E.

Loudoun, C.

Arran, E.

Emmet of Amberley, Bs.

McFadzean, L.

Atholl, D.

Essex, E.

Masham of Ilton, Bs.

Balerno, L.

Falkland, V.

Massereene and Ferrard, V.

Balfour, E.

Ferrers, E.

Merrivale, L.

Barnby, L.

Ferrier, L.

Milverton, L.

Beaumont of Whitley, L.

Fraser of Lonsdale, L.

Monck, V.

Belhaven and Stenton, L.

Goschcn, V. [Teller.]

Monsell, V.

Belstead, L.

Gowrie, E.

Mountevans, L.

Berkeley, Bs.

Gray, L.

Mowbray and Stourton, L.

Birdwood, L.

Grenfell, L.

Napier and Ettrick, L. [Teller.]

Bledisloe, V.

Gridley, L.

Bridgeman, V.

Hailes, L.

Northchurch, Bs.

Buchan, E.

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

Nugent of Guildford, L.

Burgh, L.

Oakshott, L.

Caccia, L.

Hanworth, V.

O'Neill of the Maine, L.

Cork and Orrery, E.

Harvey of Prestbury, L.

Orr-Ewing, L.

Courtown, E.

Hastings, L.

Poltimore, L.

Craigavon, V.

Hatherton, L.

Rankeillour, L.

the trade unions should be expected to take steps to prevent persons acting or purporting to act on their behalf from doing certain things. In the case of a legal collective bargain resulting in a collective agreement, I can well understand why the union should take part in enforcing the decisions that have been arrived at, but for the life of me I cannot see why the trade union movement should be obliged to police something which is forced upon them in the circumstances outlined in Clause 41. I very much hope and expect that my noble friends will support this Amendment in the Division Lobby.
6.55 p.m.
On Question, Whether the said Amendment (No. 60Q) shall be agreed to?
Their Lordships divided: Contents, 50; Not-Contents, 88.

Rothes, E.

Sinclair of Cleeve, L.

Teviot, L.

St. Aldwyn, E.

Skelmersdale, L.

Teynham, L.

St. Just, L.

Somers, L.

Tweedsmuir of Belhelvie, Bs.

St. Oswald, L.

Southwark, L. Bp.

Vivian, L.

Sandford, L.

Strange of Knokin, Bs.

Wade, L.

Savile, L.

Strathclyde, L.

Windlesham, L.

Selkirk, E.

Strathcona and Mount Royal, L.

Wise, L.

Sempill, Ly.

Resolved in the negative, and Amendment disagreed to accordingly.
LORD DRUMALBYN: My Lords, I beg to move that further proceedings on Report on this Bill be adjourned to allow the House to resolve itself into a Committee on the Sheriff Courts (Scotland) Bill.
Moved, That further proceedings on the Report stage on the Industrial Relations Bill be adjourned to allow the House to resolve itself into a Committee on the Sheriff Courts (Scotland) Bill.—(Lord Drumalbyn.)
On Question, Motion agreed to.

SHERIFF COURTS (SCOTLAND) BILL
7.0 p.m.
THE MINISTER OF STATE, SCOTTISH OFFICE (BARONESS TWEEDSMUIR OF BELHELVIE): My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Baroness Tweedsmuir of Belhelvie.)
On Question, Motion agreed to.
House in Committee accordingly.
[The Lord Maybray-King in the Chair.]
Clauses 1 to 4 agreed to.
Clause 5 [Qualification for offices of sheriff principal and sheriff]:
LORD HUGHES: I have had representations made to me, as have a number of other noble Lords and I think the Minister, the noble Baroness, Lady Tweedsmuir of Belhelvie, from the Glasgow Bar Association, who have a number of comments to make on different parts of the Bill. On some of these I do not propose to take any action, because I am rather out of my depth on the merits of things being done by the Court of Session or the sheriff court, and
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probably this would be better done by an advocate or a solicitor. I therefore intend to leave these parts alone. There are, however, two aspects of the representations which I think are worthy of mention to the Committee.
The first is concerned with Clause 5 and also Clause 11, to which I shall not revert when we reach that clause; namely, the qualifying period for a sheriff. For a sheriff to hold the position permanently he must have at least 10 years' experience of qualification, but to be a temporary sheriff he requires to be qualified for only five years. The view has been expressed—and I must say that I feel a certain amount of sympathy with it—that as the powers of a sheriff, whether permanent or temporary, are the same, and the consideration that he must give to cases appearing before him is the same, there appears to be no reason why those who are fortunate or unfortunate enough to have their cases tried or heard before a sheriff who is only temporarily in office should have it done by a man with not more than half the experience. If this temporary sheriff were someone appearing for only the odd half day or so, then obviously the possible appearance of having the case dealt with by a less qualified man would affect only a comparatively small number of people. But I understand that it is not unusual for a temporary sheriff to hold office for a good many months on end, not necessarily in the same sheriffdom, but perhaps being sent from one sheriffdom to another, and this has given rise to a certain amount of dissatisfaction.
I think there is a certain justice in the view that, if it is laid down that a permanent sheriff must have 10 years' experience, the inference is that he is not going to be able to do the job satisfactorily if he has less than 10 years' experience. Yet you can have the situation of people appearing before a particular sheriff court over a period of many months maybe having a decision arrived at by a man who does not have that experience. If the stipulation for 10

881
years means anything. I think it is reasonable to take from it that some people are going to have their cases dealt with by a man who is poorly qualified. I am deliberately putting it in the worst possible way, because I understand that at the present time, until this Bill becomes an Act, the period of experience a sheriff must have is five years; and the Bill is in fact extending it to ten years for permanency, while leaving it at five years for temporary.
I would suggest that either the five-year period or the ten-year period is right in relation to the amount of experience that is necessary before a man should occupy the shrival bench. I cannot see any justification, now that it has been brought to my notice, for its being said that if he is going to be there for only a period of six months—or three months or five months, whatever the period may be—five years is sufficient, but that if he is going to be there all the time he might be doing a good deal of harm to people by not having the longer period of experience. I hope therefore that the noble Baroness, Lady Tweedsmuir of Belhelvie, will be able to reassure me as to the reasons why there should be these differing periods, which apparently do not exist at the present time and which, quite frankly, I do not understand.
7.11 p.m.
BARONESS TWEEDSMUIR OF BELHELVIE: I also have had the advantage of having the memorandum from the Glasgow Bar Association, and they did in very much earlier days—I think it was 1968—make representations on the Report of the Grant Committee. They suggested that the qualification for becoming a sheriff principal, or a sheriff as it will be under this Bill, should be raised from five years to ten years; and this has been done. The point raised by the noble Lord, and indeed by the Glasgow Bar Association, is whether this higher qualification should not also apply to temporary appointments which are usually made for a few months—say, if someone is ill or an occasion such as that.
For many years now we have had the qualification for the appointment of a sheriff principal of five years as an advocate or, if not an advocate, five years as a sheriff substitute; and for a sheriff
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substitute (who is now of course to be known as a sheriff) the person to be appointed must have been legally qualified as an advocate or a solicitor for five years. This system has run for a considerable number of years and, because one cannot always say that it is easy to obtain highly qualified people, and as for many years we have managed very well on this period of five years, which in practice has often worked out to be ten, we feel that for a purely temporary appointment we should leave matters as they are. The purely practical point is that it is not always easy to find someone of this length of experience who is available to fill in for a temporary appointment, and it is for this reason alone that the original qualifications are left for periods of temporary appointment.
LORD HUGHES: May I therefore ask the noble Baroness this question? I had better preface the question by saying that the person who comes to a particular sheriff court, if the permanent sheriff is there, at least has the satisfaction of knowing that this higher standard of experience is laid down and, whatever judgment is given in the case, it is being given by the man with this greater experience. People come along and find that for some unexpected reason—the sheriff is on holiday or has been taken ill—a comparatively young advocate is sitting on the bench instead. If they feel a grievance about the decision taken, it may well be aggravated by the fact that this comparatively inexperienced person is sitting on the bench. After all, it would not matter if the people appearing before the court were doing so every other week because, on the swings-and-roundabouts principle, while they were having a fair shot of the permanent sheriff they would only occasionally get the temporary man. But most people appear before the sheriff court perhaps only once in a lifetime. There are exceptions—there are those who appear very frequently—but I am thinking of the ordinary citizen whose business takes him to the court perhaps only once.
I accept the point the noble Baroness makes, that to set too high a standard might in fact at a particular time create difficulty in finding a suitable person to occupy the bench, and there might well be a greater hardship if the court could

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not function because a suitable person could not be found. May I therefore have from the noble Baroness the assurance that it would be the normal practice, now that this change has taken place and that the higher standard of ten years is set for a permanent sheriff, that the authorities—whoever is responsible for finding the temporary sheriff—would try to get a man with as many years of experience as possible; and that a man with only five or six years' experience would not be asked to sit if it were possible for those responsible to lay their hands on a man with nine or ten years' experience? This would seem to be the reasonable way of dealing with the matter, and if the noble Baroness can assure me that that would be the normal way of proceeding, then I would be content.
7.17 p.m.
LORD WHEATLEY: Before the noble Baroness replies, may I make certain observations on the speech of the noble Lord, Lord Hughes. In logic there is a great deal to commend the argument advanced by the noble Lord. There may, however, be some practical problems, because if a person is appointed as a temporary sheriff, then in terms of subsection (5) of Clause 11 he may be required by the Secretary of State to give up his legal practice. That is in effect the purpose of subsection (5). If he is an advocate it means giving up his practice at the Bar for a period of several months. If he is a solicitor it means severing his connection with his legal practice for several months. In that situation it might be difficult, or more difficult, to obtain people in the ten-year bracket and above, than people in the five-to-ten-year bracket. That is merely a practical difficulty.
Taking up the point which the noble Lord, Lord Hughes, raised in his second speech on this question, a proposition has been canvassed—and I should like the noble Baroness in her reply to say whether or not she has any knowledge of it—that, in addition to appointing sheriffs to occupy the various sheriff courts throughout Scotland, there should also be appointed a pool of sheriffs who would act in a floating capacity and act as temporary sheriffs where that was required. These people would be
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appointed with the full status of sheriff. They would be required to have the full qualification—namely, the ten-year qualification—and they would be paid the appropriate salary for that grade of sheriff. There are twin advantages in such a proposal. In the first place, it would secure that there was readily available a pool of sheriffs who could act when necessary, without the difficulty of finding someone with the requisite qualification prepared to give up his practice for a short period at the possible risk of damaging his practice considerably. Secondly, such a proposal would have the advantage of giving these temporary sheriffs with the full status the opportunity of learning the job.
If that was going to be the policy, I think much of the objection contained in the noble Lord's speech would disappear. One would have to recognise that some reserve power, such as is contained in the clauses referred to, might have to be there against a possibility of an exceptional circumstance arising when the pool of reserve sheriffs—if that system were adopted—was not sufficient to meet a particular contingency. But I should like to hear what the noble Baroness has to say in that regard.
BARONESS TWEEDSMUIR OF BELHELVIE: I should like to thank both the noble and learned Lord, Lord Wheatley, who is giving of his legal experience on this Bill to-day, and the noble Lord, Lord Hughes, who asked for an assurance that, as far as possible, the temporary appointments would come from people who had nearer the ten years' experience than the five years'. I think I can give him that assurance. Perhaps I should also point out that this particular provision in the Bill, which raises the qualifications, in fact goes against the recommendation of the Grant Committee, who felt that the period of qualification should remain as it is for the practical reason that it might be difficult to get enough qualified candidates to fill all the posts. But my right honourable friend the Lord Advocate, who of course is in very close touch with the legal profession all the time, felt it was right to raise the qualification for the permanent sheriff principals and the sheriffs; but he has kept the original qualifications—if I may put it that way—for the temporary appointments and I

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think I should draw attention to the fact that the Grant Committee pointed out that no one with the minimum qualifications had been appointed in the recent past, and that anyone appointed from the Bar to be a sheriff principal was likely to have been in practice for 15 or 20 years or more.
In answer to the noble and learned Lord, Lord Wheatley, as to whether it is the intention to introduce (as I think he called it) a "pool of floating sheriffs"—which I thought was a very nice metaphor—it is the intention to introduce such a pool. Whether it will be called by that exact name, I do not know; but anyone who is acting in the post of temporary sheriff of course receives the same salary as a full sheriff unless he is there—if I may so put it—purely on a casual basis, in which case he would be given a salary for a day. It has been thought that by the use of these temporary appointments it is possible to provide experience for those who we hope will become sheriffs one day.
With these assurances to both noble Lords, I hope they will feel satisfied on these counts.
LORD HUGHES: I should like to say at once that I am completely satisfied with what the noble Baroness has said; not only with the assurance for which I asked but even more so with the information she has given to my noble and learned friend, Lord Wheatley, about the pool of sheriffs, because I think this is an even more satisfactory way of dealing with the situation than the other one. I am most grateful.
Clause 5 agreed to.
Clauses 6 to 16 agreed to.
7.24 p.m.
Clause 17 [Sheriff principal may fix sittings and business of sheriff courts in sheriffdom, and sessions for civil business]:
On Question, Whether Clause 17 shall stand part of the Bill?
LORD HUGHES: In this clause the sheriff principal is given the duty of fixing the sittings and the business of the sheriff courts. I have been informed, as no doubt has the noble Baroness, that it has happened on occasion that a sheriff
886
court has sat during a local annual holiday—for instance, the Glasgow Fair—when there may be considerable difficulty in getting witnesses, and the difficulties of having a fair hearing are very great. It has been suggested and I would commend it to the Committee, not to go into the Bill but as a purely administrative matter—that sheriffs should be asked that in the ordinary course of events they should endeavour so to arrange the vacations that the court is not sitting during a period of the local summer holiday, which now extends to a fortnight and for many people is perhaps three weeks or more. If sheriffs principal make it their business to do this I think it will be easier for everyone concerned to get a satisfactory result from the proceedings in the court.
BARONESS TWEEDSMUIR OF BELHELVIE: I am glad that the noble Lord, Lord Hughes, has raised this point because it gives an opportunity to place his views and mine upon the record. I understand that as far as the Glasgow court is concerned the sheriff principal has in fact fixed the holidays so as to coincide with the local holidays in July and August. As all of us who travel about Scotland know, these holidays change in different parts of the country, and I hope this short debate will make it clear that it would be a great convenience to the public if the sheriff principals concerned and the sheriffs would indeed fix their own periods of vacation so as to coincide as far as possible with local holidays. I thank the noble Lord for raising the matter.
Clause 17 agreed to.
Clauses 18 to 23 agreed to.
7.27 p.m.
Clause 24 [Provision and maintenance of court houses by Secretary of State]:
On Question, Whether Clause 24 shall stand part of the Bill?
THE EARL OF SELKIRK: We are dealing with a part of the Bill which brings the sheriff courts under the central Government, and in Clause 24 very precise statutory obligations are laid on the Secretary of State about maintenance of the sheriff courts. I would have very little doubt as to whom that referred to (although I accept that Secretaries of State are somewhat volatile in Acts of

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Parliament) if it were not for subsection (7) of Clause 23. In that it says this:
" In this section references to the Secretary of State are references to the Secretary of State for the Environment."
Had it not been for that I would have assumed that the obligations under Clause 24 would have fallen to what we used to call the Ministry of Public Building and Works; but I do not understand why it is in Clause 23 without any reference to Clause 24 if it is intended that these duties should be fulfilled by the Secretary of State for the Environment. I think this is important.
The Grant Committee referred to the condition of sheriff courts, which it said was very unsatisfactory, and this Bill does not state simply that sheriff courts should be properly appointed. It does not leave anything vague. It lays down most precise statutory obligations. If any sheriff finds his court dirty then some Secretary of State is guilty of a statutory offence; if any sheriff is cold or his court is badly lighted then some Secretary of State is guilty of a statutory offence. All I am asking is: who is that Secretary of State and to whom should the sheriffs complain if they are not satisfied with the state of their courts?
BARONESS TWEEDSMUIR OF BELHELVIE: I think the noble Earl has assumed that in practice the Secretary of State who would be responsible for the provision and maintenance of courthouses under Clause 24 would in fact be the Secretary of State for the Environment, but he questioned why it was that the Secretary of State for the Environment was referred to particularly in the previous clause, Clause 23. If I may say so, I think the noble Earl half knew the answer because he said that he understood that Secretaries of State were very volatile. He would therefore know that it is not customary to identify the particular Secretary of State when conferring general powers or functions, because the expression "Secretary of State" means one of Her Majesty's Principal Secretaries of State; but if one refers to Clause 23—which, although we have passed it, we could perhaps refer to in passing in connection with Clause 24—in Scotland title to property can be transferred only through an identifiable person or body. That is why in Clause 23, which deals
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with the transfer of courthouses, the Secretary of State for the Environment has to be mentioned specifically.
Of course, when this Bill was first drafted the Ministers were quite clearly identifiable, because there was the Secretary of State for Scotland and the Minister of Public Building and Works; then, with the advent of the new Government, we had another Secretary of State. Therefore Clause 23, because it transfers property and has to transfer it to a particular person, mentions the Secretary of State for the Environment; but later in this Part of the Bill, which includes Clause 24, it merely mentions the Secretary of State as being one of Her Majesty's Principal Secretaries of State.
THE EARL OF SELKIRK: I thank my noble friend.
Clause 24 agreed to.
Clauses 25 to 30 agreed to.
7.32 p.m.
THE DUKE OF ATHOLL THE DUKE OF ATHOLL moved Amendment No. 1:
After Clause 30, insert the following new clause:—
Extension of jurisdiction of sheriffs principal and sheriffs to undefended matrimonial causes
" .Sheriffs principal and sheriffs may hear and determine any undefended matrimonial cause."
The noble Duke said: I beg to move Amendment No. 1 on behalf of my noble friend Lord Cromartie, who apologises for his inability to be in his place to-day, due to a most important meeting of his county council. My noble friend stated the case for this Amendment very forcefully on the Second Reading of the Bill, and I will not repeat his arguments here. They can be summed up in two words, convenience and expense. It is both more convenient and less expensive to have these cases tried in local sheriff and sheriff substitute courts, and saves the taxpayer money in legal aid. Witnesses, who tend to be local, and the plaintiff do not have to travel to Edinburgh for a hearing which lasts usually just over ten minutes. In England they have a far more radical system; county courts can hear defended as well as undefended divorce cases, and in this Amendment we are only asking for sheriff courts to hear undefended cases.
I do not, as your Lordships are no doubt aware, necessarily recommend

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everything English, but in this case I feel that they are looking more to convenience South of the Border than we are in Scotland. If this Amendment were accepted, it would mean a little more work in the sheriff courts, but presumably there will be an equivalent saving in the Court of Session, and more sheriffs will probably be needed anyway. As we have just heard from my noble friend the Minister, there is this idea that a pool, in the words of the noble Lord, Lord Wheatley, should be appointed, and they could presumably help out where needed.
My noble friend Lord Balerno on Second Reading gave two reasons why he did not much like this proposal. One was the question of uniformity in the administration of the divorce laws, but this does not seem to be a problem in England. And the sheriff courts do distribute property in other sorts of cases. The second reason that the noble Lord, Lord Balerno, gave for not much liking this idea was that it made the divorce slightly more difficult because people had to travel to Edinburgh. I think this is almost exactly counterbalanced by the fact that by having all cases in Edinburgh there tends to be greater anonymity. I feel that many people would rather travel to Edinburgh and avoid the very small amount of publicity—and it is a very small amount of publicity, because you are not allowed to report divorce cases in Scotland, other than the result—rather than have the case heard locally. For these reasons, I hope that my noble friend the Minister will consider this Amendment. I beg to move.
LORD WHEATLEY: In rising to speak to this Amendment I find myself in a difficulty as to whether or not I ought to declare an interest. If this Amendment were carried, it would mean that there would be less work for the judges of the Court of Session, with presumably no diminution of their salaries. Accordingly, if I were to support this Amendment, I would obviously have to declare an interest. But as I am going to oppose the Amendment, it becomes rather an academic point.
There are, of course, various approaches to this question, and many of them are rather narrow and, may I say, rather syndicalistic. I rather think we
890
could approach this on the broad view, balancing the advantages and disadvantages of the proposal, because there are advantages on the one side and disadvantages on the other, and it would be quite wrong to think that this was a simple matter of black and white. It would be competent to introduce this within the Bill because Part III deals with the extension of the civil jurisdiction of the sheriff courts. The question is not whether it is competent but whether it is desirable. It may be that another form of Bill would be more appropriate, but I think we ought to consider whether in any event it is desirable, whether in this Bill or in another.
By way of preamble, may I point out that the Grant Committee, after full consideration of all the evidence and representations made to them on this subject, recommended unanimously that the undefended divorces should remain in the Court of Session. And they had before them a very full cross-secton of opinion; not the narrow views which are often put up to Members of both Houses of Parliament by interested parties, but a very full cross-section of views. The majority of the representations made to the Grant Committee were in favour of retaining the undefended divorces in the Court of Session. The fact that they were unanimous, of course, is not conclusive, nor is it decisive; one has known of occasions where unanimous views of a departmental committee, or indeed a Royal Commission, have not necessarily been accepted. But I am happy to say that often they are. While it is not decisive at least it is relevant and may very well be persuasive.
May I just deal with the two points the noble Duke made, because I think they summarise the advantages which are claimed on behalf of this proposal. The first one is that of convenience. This argument subsumes that all the litigants and all the witnesses will be living in the area of the sheriff court where the case is being heard. This, of course, is just not so. When I come to examine the vexed problem of jurisdiction (which the noble Duke, and those, I presume, briefing him, have thought fit not to mention, for obvious reasons) assuming that the basis of jurisdiction was, as it might well have to be, the residence of the defender, that, of course, might well be at the other end of Scotland from the residence of the pursuer

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and his or her witnesses. Therefore, this question of convenience for litigants and witnesses is not really a very strong one, because the centralisation of divorces in Edinburgh, whatever you may say about it, makes it more central for people from different parts of Scotland.
Unfortunately, most of the witnesses and most of the litigants come from the central belt where there is a large area of population, and therefore the degree of inconvenience, although I do not disguise the fact that there is inconvenience in some cases, is perhaps not so large as the proponents of this suggestion would have us believe.
Let us turn to the question of expense. Most divorce cases, particularly the undefended divorce cases, are legally aided at present. May I point out that in cases where legal aid is provided, there may or may not have to be a contribution according to the means of the parties. If there is no contribution it does not make any difference to the litigant whether the case is in the Court of Session or the sheriff court so far as his expense is concerned. If the litigant is making a contribution, in many cases it is liable to be of such a nature that it would be required for the sheriff court as well as for the Court of Session, so the amount of contribution in most cases would not be affected. The people affected would be the non-legally-aided litigants. If they had a more convenient forum where expenses were less than in the Court of Session, they would be the beneficiaries, but it might be said that the public funds would be the great beneficiaries because there would be a great saving in fees paid to the profession if the case were heard in the sheriff court. That is undoubtedly so, but I do not think the actions would be as expensive generally in the sheriff court as in the Court of Session.
As against that, we have to recognise that if undefended divorce actions are taken to the sheriff court one would require to have many more sheriffs, additional staff, greater administration and more accommodation. All that would cost money. I do not think anyone could predict whether or not the amount of money that this would involve would counterbalance the saving in legal aid expenses coming out of the legal aid
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fund, but I do not think it would be such a great saving as the supporters of this Amendment would have us believe.
On the other side of the coin, there are formidable difficulties. I would not pretend that they are insurmountable. Parliament can surmount any difficulties provided (a) it has the will; and (b) the Treasury is prepared to give the finance. What are the arguments? I think they are based, first, on principle and, secondly, on practical considerations. Our law in Scotland, both civil and criminal, has always recognised that there are certain forms of actions or proceedings which are appropriate to our highest court. One such class of action has always been an action involving status. An action for divorce involves status and what goes with it and what flows from it. Accordingly, such an action has always been regarded as one of the types of action that should be reserved because of its nature to the highest court; namely, the Court of Session.
Incidentally, this is recognised by the mover and sponsor of this Amendment because in defended divorce cases they accept that the nature of the case is such as to justify it being heard in the Court of Session. The other argument which is advanced is that these undefended actions can go through a legal "sausage machine" in 10 minutes in the Court of Session. May I suggest that the test as to which court is the appropriate court for an action is not how long a particular action may take, but what is involved in the action, and what is involved here is the question of status and all that flows from it. Therefore I think this 10-minute argument does not really hold water, because what the Amendment seeks to do is to turn this 10-minute divorce act in the Court of Session into a 10-minute divorce act in the sheriff court. I cannot see that that has any relevance at all.
On the question of the status of the action, I should like to think that marriage is still regarded as the basis of our society. Heretofore the dissolution of marriage has been regarded as so important as to be reserved for a higher court. I think we must ask ourselves the question. Has marriage become so debased that it no longer merits that status and that consideration? If, as one academic

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lawyer said, divorce has become a 10-minutes degrading act in the Court of Session, may I say that that is not the fault of the Court of Session? With all due respect, in my opinion that is the fault of Parliament in its liberalisation of the divorce laws according to some points of view and the emasculation of them from other points of view.
Therefore, I suggest to your Lordships that the proper place for the contract of marriage to be dissolved is and always has been, in an undefended action, in our highest court, the Court of Session. I agree that most of the actions which are undefended go through in a short time and have little difficulty, but there are sometimes difficulties which arise which make such actions appropriate to the Court of Session. There are—and I know this from my own experience, although nowadays I am not normally involved in this kind of action sitting as I do normally in the Appeal Court—difficult questions of jurisdiction which can arise in an undefended action. Difficult questions of the recognition of foreign decrees of divorce in an undefended action—and more often than not these points are raised not by the parties nor by counsel but by the judge himself—sometimes take a great deal of sorting out and solving, as I know from personal recent experience.
There is another aspect: the preservation of our standard of law and the proper development of our law which are important factors in any legal system. The development in the law of divorce, which has been substantially altered by successive Statutes since 1938, makes it desirable to obtain, not a standard of complete uniformity because in human society that is quite impossible to attain, but as high a standard of uniformity both in the interpretation of the law and in the development of a changing law which is constantly being changed by Statute to move that standard as high as possible. I suggest that that exercise is best achieved in the collegiate of the Court of Justice, which is the Court of Session, rather than in the scattered sheriffdoms throughout the length and breadth of Scotland.
May I point out that most undefended actions result in a decree of divorce being granted, and therefore there is no appeal in such actions. The only pos
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sibility of an appeal in an undefended action is that the decree is refused and the dissatisfied pursuer—may I point out that that is the term, not "plaintiff"—then can take an appeal. In the result, many points of law may go through on a wrong basis of law because a decree of divorce has been granted in the sheriff court. But in the collegiate of the Court of Justice it is easier to get, both at the Bar and Bench, nearer to a standard of interpretation, of development and practice than otherwise in this branch, which I concede to be an important branch of our law.
I must apologise for detaining your Lordships, but I think it important for Scotland and the people of Scotland and I do not make any apology for speaking on this matter for so long. Let us look at the practical points. I do not know whether the noble Lord who moved the Amendment or those who briefed him knew what the condition would be. Is it still to be a condition precedent or a sine qua non in any form of jurisdiction that the person has a Scottish domicile derived from the husband? If that is so, are we to have a further qualification for the sheriff's court, because a Scottish domicile would not be the basis of jurisdiction for an individual sheriff court albeit that it is the basis of jurisdiction for the Court of Session. So we are required either to superimpose on domicile another basis of jurisdiction or to supersede domicile by another basis of jurisdiction.
It is no use saying, as was said during an earlier debate on this Bill, that you can have resort to the existing bases of jurisdiction in the Sheriff Court Act that we have at the present time, because many of these jurisdictions are completely inappropriate for an action of divorce. Therefore, if one assumes, if this Amendment were to succeed, that the type of jurisdiction that would be invoked, either in supplement to or in substitution for domicile, was residence—then whose residence? Is it going to be the residence of the defender or the pursuer, of the husband or the wife? As I pointed out earlier, once you have that situation you are going to get into difficulties of convenience, because the residence constituting jurisdiction may make it very difficult indeed for the witnesses to travel from other parts of Scotland or indeed from England. May I say that with the

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more limited qualification required to constitute residence as distinct from domicile, some of the husbands who are very difficult to catch at the present time will be much more difficult to catch, because they can just hop about from place to place and defeat the whole purpose and intent of a residential qualification.
I will just deal with another two points. The volume of work in many sheriff courts, though not in all, is such that the superimposition of a flood of extra work which this Amendment would involve, particularly in the Central Belt, would mean chaos in the courts as they are at present. We should need to build new courts and staff them with more sheriffs. The pool to which the noble Lord referred would not meet that situation because it is designed to meet the present situation and not a new one. There would have to be new staff, a new administration, and so on. And at the same time the work of the sheriff court, particularly in the Central Belt where most of these divorces have come from, is such that the growth in the cases of crime is shoving the civil work further and further hack. Therefore, from the point of view of convenience of the public and the getting of speedier divorces, this would not expedite but retard matters. The argument of England will not hold water, because there is this marked distinction to begin with. The county court judges who started as commissioners in England before the new dispensation was introduced do no criminal work, and that distinguishes them very materially, from the point of view of the volume of work, from the Scottish sheriffs. In any event, when that change was made it was because the High Court of England was so overworked that they had to find some easement for it in passing this work on to the county courts. That does not apply in Scotland.
So far as anonymity is concerned, I do not want to deal with it in detail. I do not think it is so much the anonymity as the obscurity of the Court of Session that might have some attraction for people. I think it is the weakest part of the argument and I shall not deploy it. But for the reasons I have put forward, I would ask your Lordships to reject this Amendment on its merits.
7.53 p.m.
LORD HOY: Although my name is attached to this Amendment, it was not my intention to take part in the debate, but here I am in a personal capacity. The noble Duke, the Duke of Atholl, who moved it might like one word in support of it. When this Amendment was put down what we were aiming to do was not to belittle marriage. We do not underestimate the value of marriage. We regard it as the foundation not only of a good family life but of the State itself; so in that respect we do not value it less than those who are opposing the Amendment. I feel I should make that perfectly clear. What we were seeking to do was to meet the needs not only of the law but of the people who would be involved in divorce. While it may be true to say that all the people who are involved in a sheriff court action of this kind would not be living within the area of the sheriffdom, we are absolutely certain that all who are involved in the Court of Session at the present time do not live within the area of Edinburgh. Therefore what we were seeking to do in this Amendment was to meet the needs of the people in those undefended actions.
I am a little appalled to hear that if this work were transferred from the Court of Session to the sheriff court we should have to erect new sheriff courts all over the place. Perhaps the noble Baroness, when she comes to reply, will tell us just what is involved. I am certain we shall all be grateful for the facts. But even if extra sheriffs were needed, I can remember being involved in certain arguments that we should increase the number of judges in the Court of Session because of the work they had to do. It may well be that as we were able to sort out and rearrange the work, so we could meet these cases. We were trying to get advantages and to bring in an Amendment which would in a humane way meet the needs of the people in this case. Certainly we were never arguing that we were going to save money for the litigants in these proceedings. What we were prepared to argue was that we might be relieving the Exchequer of a considerable sum of money, because if these people are legally aided, then all the travelling which is involved has to be paid for by the Exchequer. We thought—we may have been quite ignorant over this—that

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this was a needless expenditure. Therefore two things were involved, time and expenditure, which we thought might be saved.
Now we are also told that perhaps this is not the Bill to which this Amendment ought to be made. That may well be so, and I am certain that if it is so the noble Duke, the Duke of Atholl, will be prepared to withdraw his Amendment. But surely it is not asking too much, when changes are being made, that we at least should be permitted to put down an Amendment and debate it, always on the understanding that whether we are for or against it there is no difference of opinion in Scotland about the value of marriage.
LORD HUGHES: I shall not detain the Committee for very long. I said when I spoke on Clause 5 that I did not want to find myself involved in these legal arguments, and I knew that I was right after listening to the noble and learned Lord, Lord Wheatley, on this matter. I do not propose to involve myself any more than to say that my inclination is to disagree with the noble and learned Lord. I think there is something to be said for having at least some undefended cases before the sheriff court. But my sole reason for intervening is this. Yesterday, on another Bill fairly late in the evening, we had a Division on a question of a double drawing of money where a person was under notice of redundancy and went sick under industrial injury benefit. The view which I held then, although I did not express it in the debate, was that while that might or might not be a right thing to do, the Industrial Relations Bill was not the place in which it ought to be discussed. I believe that there is a Social Security Bill before another place at the moment into which it might properly be fitted. My reason for not wishing to support this Amendment is not because I disagree with certain undefended divorce cases being heard before the sheriff court, but that if that issue is to be discussed it should be done during a discussion of divorce and not during a discussion of the functions of the sheriff court. I therefore would not support this Amendment because I think it ought to be made to another Bill altogether and not to this one.
8.0 p.m.
BARONESS TWEEDSMUIR OF BELHELVIE: We must all be glad that so many Lords have taken part in what has been a fascinating debate. I thank my noble friend the Duke of Atholl for having raised this question, which is of great interest to us all. He will not be surprised if I recommend to the Committee that we do not accept this Amendment, and I hope he will withdraw it.
This question was raised on Second Reading, and I gave reasons why I felt that the recommendations of the Grant Committee should be followed; in other words, that there should be no change and that undefended divorce cases should not be heard in the sheriff court, but should continue to be heard by the highest court in Scotland. I have no intention of trying to repeat the many excellent arguments put to this Committee by the noble and learned Lord, Lord Wheatley. He has covered every possible point and, in particular, was of great interest on the matter of jurisdiction. Therefore I am glad that he took that view. It also shows that there are genuine and differing views on this subject; but at this moment I would say to the two noble Lords on the Benches opposite that naturally I appreciate (and I say this especially to the noble Lord, Lord Hoy) that everyone in this Committee—whether for or against this Amendment—believes that marriage is one of the great foundations of our society. I should like to support the noble Lord, Lord Hughes, in saying that, in any case, this is not the right Bill in which to discuss the jurisdiction of the divorce court.
I would remind the Committee (this is a point which has not been brought up) that the Grant Committee suggested that their recommendations should come forward in two parts. First, the legislation with which we are dealing now, concerning the machinery for administering the sheriff courts; then other legislation which properly could contain any recommendations put forward in the Grant Committee regarding jurisdiction. Therefore I would say to my noble friend the Duke of Atholl that when we have other legislation dealing with jurisdiction, if he still feels inclined to pursue the matter, that will be the moment in which to put down his Amendment. I hope that on this occasion he will withdraw it.
THE DUKE OF ATHOLL: I should like to thank all noble Lords who have taken part in this short debate, particularly the noble Lord, Lord Hoy, for supporting the Amendment and the noble Lord, Lord Hughes, for his qualified support. I should also like to assure the noble and learned Lord, Lord Wheatley, that I would never have thought that he had an interest in the Parliamentary sense in this particular matter, although I realise that he has a far more general interest in it, and a very deep one. I bow to his words of wisdom and apologise to him for calling a "pursuer" a "plaintiff". On the Second Reading the "pursuer" was also called the "plaintiff".
In the light of the disagreement to this Amendment not only from the legal forces on the Cross Benches, but also from the Leader of the Opposition so far as Scottish matters are concerned, and the Government—I am sure you will agree a formidable combination—I have little alternative but to withdraw this Amendment. I must reserve the right of my noble friend, Lord Cromartie, possibly to return to it at a subsequent stage, although I feel that when he reads what the Minister said in her closing sentences he will not consider it necessary to do so.
Amendment, by leave, withdrawn.
Clauses 31 to 35 agreed to.
8.5 p.m.
Clause 36 [Procedure in summary cases]:
BARONESS TWEEDSMUIR OF BELHELVIE BARONESS TWEEDSMUIR OF BELHELVIE moved Amendment No. 2:
Page 22, line 39, leave out (" of counsel ") and insert (" an advocate ").
The noble Baroness said: This is a drafting Amendment. The purpose of subsection (1) of this clause is to enable the Court of Session to make rules permitting a party to a summary cause in the sheriff's court to be represented in certain circumstances by someone other than a lawyer. The expression "counsel" was intended to show a person who is a member of the Bar, but it has been suggested to us that it is an expression which is more commonly used in England. That being so, we feel it will be more suitable in a Scottish Bill to use the more familiar
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words "an advocate" to describe a member of the Scottish Bar. I therefore beg to move.
LORD HOY: On this side of the House we want to support this important Amendment. We cannot understand why the noble Baroness took so long to see a mistake which had been made by the draftsmen. We are grateful that it has been picked up by her Department and corrected.
LORD HUGHES: It will be of satisfaction to the noble Duke, the Duke of Atholl, to know that he is not the only one who falls into the error of using English terms.
On Question, Amendment agreed to.
On Question, Whether Clause 36, as amended, shall stand part of the Bill?
LORD WHEATLEY: As one of the persons who may be involved in passing the Acts of Sederunt under this clause, may I ask the noble Baroness why it is that this exception to the normal rule has been introduced in relation to summary actions, having regard to the wide range of actions covered by what is called in the Bill a "summary cause"?, It might be an advantage if those of us who have to formulate the Acts of Sederunt knew what was at the back of the mind of the Government when making this proposal.
BARONESS TWEEDSMUIR OF BELHELVIE: I am sure that the noble and learned Lord will remember that Clauses 35 and 36 assimilate the small debt and summary procedure, and substitute a new summary procedure, applying to actions for amounts below £250.
Clause 36, as amended, agreed to.
Clause 37 [Remits]:
BARONESS TWEEDSMUIR OF BELHELVIE BARONESS TWEEDSMUIR OF BELHELVIE moved Amendment No. 3:
Page 23, line 29, at end insert ("(4) In this section 'sheriff' includes a sheriff principal.")
The noble Baroness said: This also is a drafting Amendment, but I should explain it because in its present form Clause 37 enables the sheriff, in certain circumstances, to remit ordinary causes for summary role and vice versa. As the Bill stands, if exceptional cases arose (for

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instance if the sheriff were ill) which required the sheriff principal to step in and hear the case at first instance, he would have no power to remit the action, if he wished to do so, from the summary role to the ordinary role, or vice versa, because the power conferred by Clause 37 is conferred only on the sheriff. This is why the clause is defective and the Amendment seeks to remedy this defect by providing that the expression "sheriff" should be construed for the purpose of this clause as including sheriff principal. I beg to move.
LORD HUGHES: I agree with this Amendment. The noble Baroness rather simplified it by saying this is a drafting Amendment. I think it corrects a rather serious error in the clause.
On Question, Amendment agreed to.
Clause 37, as amended, agreed to.
Remaining clauses agreed to.
Schedules agreed to.
House resumed: Bill reported, with the Amendments.

INDUSTRIAL RELATIONS BILL
8.11 p.m.
Report stage resumed.
LORD CHAMPION LORD CHAMPION moved Amendment No. 60R:
Page 28, line 34, leave out from (" contract ") to end of line 35 and insert (" a party shall be held to be guilty of an unfair industrial practice if it is proved that he has omitted to take all such steps ").
The noble Lord said: My Lords, this is an Amendment which I shall move very briefly. The matter at issue here is upon whom lies the burden of proof under subsection (2) of this clause. It seems to me that the burden of proof should clearly be placed on those who allege a breach of an agreement or of part of it. The Amendment which I am proposing would make it clear that the party alleging an unfair industrial practice would have to specify the steps that should have been taken, and to prove to the appropriate court that such steps would have been reasonable. I beg to move.
THE LORD CHANCELLOR: My Lords, this is something about which there need be little argument. The Amendment makes no difference at all. The disadvantage of it, as compared with the actual language of the Bill, is that it takes a negative rather than a positive view in point of language. The burden of proof remains on the complainant in both cases. I therefore suggest that the Amendment is not necessary and provides a less favourable form of words from the point of view of understanding the Statute than that which is in it. Another disadvantage is that the language chosen for the Amendment seems to be borrowed from criminal law and practice, and is therefore inapplicable to civil law and practice. It is a matter of drafting and we think our drafting is better.
LORD CHAMPION: My Lords having regard to that explanation I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.15 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 60T:
Page 28, line 35, after (" agreement ") insert (" contrary to an undertaking given by that party and contained in the collective agreement ").
The noble Lord said: My Lords, this Amendment stems from Amendment No. 61 standing in the name of the noble Lord, Lord Drumalbyn. My Lords, if Amendment No. 61 means what I think it means then this is a drafting Amendment; but if it means something different then this is an Amendment of substance. When I first read Amendment No. 61, deleting the words mentioned and putting the words "contrary to an undertaking—" in their proper place in subsection (2)(a), it seemed to me that the words to be inserted would be applicable only to subsection (2)(a); so that what this subsection would do, in effect, would be to say that where a collective agreement is a legally enforceable contract it would be an unfair industrial practice if a union did not take all reasonably practicable steps to prevent persons acting, or purporting to act on the union's behalf, contrary to an undertaking given by that union and forming part of the legally enforceable contract.
Then I re-read the subsection in this way, omitting the amended paragraph (a)
" it shall be an unfair industrial practice for any party to the agreement not to take all such steps as are reasonably practicable for the purposes—….
(b) where the party in question is an organisation, of preventing members of the organisation from taking any such action;"
What I did then was to relate the word "action" in paragraph (b) back to the breach of the legally enforceable contract. I hope that is now clear. On looking at that subsection again, it seemed to me that the word "action" in paragraph (b) related back to the word "action" in paragraph (a).
If the second look at the subsection produces the correct interpretation, then paragraphs (a), (b), (c) and the new subsection to be inserted at the end of line 4 on page 29 will apply only in the circumstances where the party to the collective agreement, with his eyes wide open to the consequences, gave an undertaking that paragraphs (a), (b) and (c) would be carried out. If this latter is the case there is not much I wish to say against the principle embodied in subsection (2), but if the first interpretation is correct all the objections I have to what we dealt with on my Amendment as to an order of the Court being deemed a legally enforceable agreement remain as strong as ever.
This brings me back to my Amendment which I wish to see inserted after "agreement" in line 35. If the words of the noble Lord, Lord Drumalbyn's Amendment No. 61 are put there, it seems to me that the effect will be to remove any doubt about the extent of their application; but if the noble Lord and the House wish to make the words applicable only to subsection (2)(a) then consequential Amendments to paragraphs (b), (c) and new subsection will have to be made to relate the word "action" back to the word in paragraph (b). But that I gather is not what is intended. It is in an endeavour to discover exactly where these words which are to be eventually included under Amendment No. 61 will actually bite that I am moving this Amendment here. I think this makes a big difference, but perhaps the noble and learned Lord will tell me that that is not so. My Lords, I beg to move.
8.20 p.m.
THE LORD CHANCELLOR: My Lords, I am not wholly sure that I understood the noble Lord, Lord Champion, when he explained his Amendment. If I did not, I hope I may be forgiven. Two things are clear to me: first, that I can deal only with the effect of the Amendment as it is proposed; and, secondly, I will try to give a lucid explanation of Amendment No. 61 which, when it comes, will be intended to be read with Amendment No. 62, when I propose it. I do not think it would be right, or indeed in order, for me to anticipate what I would say then.
The effect of the present Amendment would be to limit the obligation which Clause 36(2) imposes on the parties to legally enforceable collective agreements reached after the commencement of the Act to use their best endeavours to prevent or end action by their agents, or members, of a kind which the agreement binds them not to take. The Amendment would mean that the obligation applied only in so far as it was expressly agreed in the agreement; the best endeavours clause would have to be expressly inserted into an agreement.
In our industrial relations there are a good many traditions and practices of which both sides are quite rightly proud. The Amendment we are discussing concerns one of them. In the normal course of collective bargaining, I suppose that almost every week a union, or an employer, or an employers' association, or a federation of unions, will be entering into a collective agreement, which it enters into quite voluntarily on behalf of its members. Obviously, in such an agreement both sides are free to state what the purpose and the content of the agreement should be. They are free to state how it should be phrased; they are free to state how best to provide that both sides shall abide by its terms. But when the agreement has been arrived at, I believe it to be customary—and if it were not customary I would think it reasonable—to expect that each party should honour the obligations it has thus accepted; and having honoured the obligations that it has accepted in this way, that it should, as part of that honourable obligation, use its influence to discourage action by its

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members, or officials, of a kind which it has decided not to join in or start.
If, as sometimes can happen, someone has wrongly claimed that a union has authorised its members to disregard obligations to which it has agreed, I think it is usual for the union to repudiate such a claim. Indeed, an honourable union would feel bound to do so. Its reaction, if it did so, would be natural. It would regard it, and rightly, as in the interests of the union's standing, and good relations with the other parties of the agreement, to repudiate the claim. Equally, I should have thought that it was as well for the union itself, in its own interests, to maintain its authority and discipline by seeking to honour the agreement which it has made.
I am sure that we would all acknowledge that preventing or ending action at variance with its obligations is something which unions, quite rightly and properly, have long regarded as being within their responsibility and, in general, I think we would accept that responsible unions, who are the very great majority, discharge this obligation very effectively. It is sometimes a difficult task. I imagine it is often a thankless task for the officials of a union to have to honour their obligations in this way, particularly when there are grievances of a serious and legitimate kind. This is precisely what tests responsible leadership. As drafted now, the Bill would uphold them in the task.
The Amendment would abolish that obligation in any contract—to use the best endeavours to see that the contract is observed—where it was not expressly put in. Our view is that that is not just a question of drafting, it is a question of swearing by the card; and that people have a right to expect bodies on both sides not to have to say, when they enter into an agreement, that they will do their best to observe it, and do their best to see that their members observe it.
The effect of the Amendment is that it would alter that standpoint and therefore, I think, undermine the prestige of voluntary agreements where they are entered into. When I come to my own Amendments, which are designed rather for a different purpose, I shall be happy to discuss what their effects will be, but, so far as I know, there is nothing in them to
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justify their transposition into the place where the noble Lord would put them. I would hope that with that explanation the noble Lord will not press this particular Amendment.
LORD CHAMPION: My Lords, I would agree completely with the noble and learned Lord that, if any party to an agreement says that he will use his best endeavours to see that that agreement is carried out, any party who enters into such an obligation ought to use his best endeavours to ensure that it is carried out. The only difficulty that arises here in the placing of these words in a different place from that proposed by Amendment No. 61, is that I wanted to be absolutely sure that, contrary to the undertaking given, it would apply over the whole field and not over the limited field of subsection (2)(a). As I understand it, the noble and learned Lord is telling me that the placing of my Amendment in this particular place, in this line, will not give effect to what I want to achieve. Is that what I understood the noble and learned Lord to be saying?
THE LORD CHANCELLOR: My Lords, I may be rather obtuse, but I am not wholly following this. As I understand it, the words in the position where Amendment No. 61 puts them are imported into paragraph (b) by the word "such" in the words "such action". If I have misunderstood anything—it is possible that I have, because this is a highly technical drafting matter—I ask to be forgiven. As I understand it, that is what my Amendment means. His Amendment would alter the sense of the words as I understand them to be.
LORD CHAMPION: My Lords, if it was a difficult point for the noble and learned Lord the Lord Chancellor to understand, it was an infinitely more difficult point for me to understand with my lack of legal knowledge. It seemed to me that the placing of my words would make a substantial difference to the clause. But I shall now leave it and withdraw the Amendment, and listen very carefully to what the noble and learned Lord says when he moves Amendment No. 61. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.30 p.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Amendment No. 61:
Page 28, line 38, leave out from (" action ") to (" that ") in line 39 and insert (" contrary to an undertaking given by that party and contained in the collective agreement or in ").
The noble and learned Lord said: My Lords, I think it would be convenient to take Amendments 61 and 62 together. In one sense, I could describe them as drafting Amendments because they really are designed to deal with the point of criticism which was put to us in Committee by the noble and learned Lord, Lord Wilberforce, and the noble Lord, Lord Tangley. If I may over-simplify the problem with which they were concerned I would describe it in these terms. Clause 36, among other things, is discussing the obligation of a union to see that its members observe its agreement and to see how far it is under such an obligation. Two difficulties stand in the way of the draftsman. The first is that the agreement is by the union and therefore the members are not parties to it at all. That is a substantial difficulty, although I think it is only one of drafting because most of us understand the difficulty and take account of it in our ordinary language.
The other thing is that if one accepts that the agreement is between the union and not between the members of the union and the employer, one also has to accept that the union cannot as a matter of fact exercise complete control over its members. They are individual people and they may act contrary either to the advice or the desire or the instructions of the union. The difficulty therefore resides in trying to translate into draftsmen's language what I think most of us would understand to be the case: that is, that the union cannot be asked to do more than to try its best to see that the agreement is kept, although, as the noble Lord, Lord Champion, frankly admitted, if a union undertakes that certain things will be done it is very much to its advantage and to its honour to see that they are done, at least by its members. Secondly, it is difficult to make it clear that the conduct which it must do its best to prevent is conduct which, if it were the conduct of the union which is a party to the agreement, would be a breach of the agreement. That is the
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joint purpose of the two Amendments which stand in the name of my noble friend.
The first Amendment deletes the words from (" action ") to (" that ") in line 39 and inserts the words (" contrary to an undertaking given by that party and contained in the collective agreement or in "). The second Amendment adds at the end of line 4 on page 29 a new subsection explaining that the action taken by a person
" other than the party who gave the undertaking in question (in this subsection referred to as the contracting party') shall be regarded as action taken contrary to the undertaking if either—

(a) it is action which, if taken by the contracting party, would have been a breach of the undertaking by the contracting party, or

(b) it consists in doing that which, in accordance with the undertaking, was not to be done, or in not doing that which, in accordance with the undertaking, was to be done."

A further effect of these Amendments—and here I come back to a question which I answered somewhat summarily when it was put to me by the noble Lord, Lord Champion, some time ago—will be to provide with more certainty a defence against liability for an unfair industrial practice in cases where a legally enforceable collective agreement has been broken, but a party to the agreement—for example, the union—can show that although its members had joined in the action complained of it had taken all reasonably practical steps to dissuade them. Again, where an unconstitutional leader claimed to have the authority to call a strike if the union concerned could show that it had taken whatever measures it could to repudiate the claim, to discourage its members from following the strike leader in question, it would provide an effective defence. After all, that is a recognised course of action for responsible unions to take and I feel that it is only right that the Bill should uphold them in following it while deterring anyone who feels tempted to do otherwise.
Basically, therefore, this is a drafting Amendment, but in improving the draftsmanship, which was its primary purpose, it provides an added safeguard for the union in the sense that I have just described. It does not go—and I hope I made it very clear to the noble Lord,

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Lord Champion, to the extent which I thought he was asking me; if I am wrong, again I apologise—as far as saying that a union is not bound to take reasonable steps to repudiate unauthorised action contrary to a Section 41 order. It does not go so far as saying that a union is not bound to take reasonable steps to use its best endeavours to see that a Section 41 order is kept. On the other hand, it does not ask the union to do the impossible in either case. It does not, I hope, ask the union to do more than is reasonable. It asks it to repudiate unauthorised action where taken falsely in the name of the union. It asks it to do its best to abide by its own undertaking, to see that its members abide by its own undertakings, and to abide by the obligations imposed upon it in the unlucky event—which I hope will be rare—that the court feels it necessary to impose them on the two parties under Section 41 arrangements. I hope I have made that plain. I beg to move.
LORD CHAMPION: My Lords, if there is any misunderstanding in my mind, the fault must be entirely mine, but I am still in a little difficulty about this. The question I really wish to ask is, will a party be relieved of any obligation to take all such steps as are reasonably practicable for the purposes set out in paragraphs (a), (b) and (c) if it does not give any undertaking such as that to which the noble Lord alluded, one that would be given when they entered into a legally enforceable contract, and which they would enter into with their eyes wide open? As I have said, if a party enters into an agreement or an undertaking to do certain things, if they do it with their eyes wide open, they should make sure that they use their best endeavours to see that that undertaking is carried out.
It seems to me, in reading this Amendment, that if a trade union refuses to give such an undertaking when the collective agreement is reached, it will be relieved of all the obligations set out to take reasonably practical steps to prevent persons acting and purporting to act and so on. I wonder if I am right on this point. If I am, it seems to me to have a bearing on the point that I was putting
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when discussing the obligation that will be placed on unions under Clause 41.
Before we part with this particular Amendment, I should very much like to hear whether it is the case that a union refusing to give such an undertaking would be relieved—as the Bill will read after the Amendment has been included in this clause—of any of the obligations under paragraphs (a), (b) and (c).
THE LORD CHANCELLOR: My Lords, I can only speak again with the leave of the House.
LORD CHAMPION: No, my Lords. The noble and learned Lord moved the Amendment.
THE LORD CHANCELLOR: Then I shall be replying, my Lords, and I suppose that I can add one more shot to my locker without leave. As I understand it, it is fairly clear that a union can make what agreement it likes with the employer, subject to Clause 41, which is irrelevant to this point. That will impose on the union an obligation to take such steps as may reasonably be practicable to secure the performance of that agreement. That, again, I think is reasonably clear. I think it would be possible for a clever draftsman to draft an agreement between a union and an employer, where each party made it clear that it would not be in the least responsible for whether or not the agreement was kept. Whether anybody but an ass would enter into such an agreement for himself, or accept such an agreement from anybody else, is a matter which I shall not discuss, but I think it would be theoretically possible for such an agreement to be arrived at.
LORD BERNSTEIN: My Lords, is being an ass an unfair industrial practice?
THE LORD CHANCELLOR: My Lords, being an ass is not an unfair industrial practice, but breaking your promise is, in certain circumstances.
LORD WILBERFORCE: My Lords, I regret that I was not here when the noble and learned Lord started his exposition, but I understand that he invited the House to consider Amendments Nos. 61 and 62 together, though he is moving only No. 61 at the moment. I wonder

911
whether it is in order, or whether it suits the noble and learned Lord, that I should make some observations about No. 62. As I understand it, that Amendment represents an attempt to meet some of the difficulties felt jointly by my noble friend Lord Tangley and myself and expressed during the Committee stage. My noble friend Lord Tangley, who is not here to-day, has asked me to say that he is most grateful to the Minister and his advisers for the trouble they have taken in drafting the Amendment, which goes some considerable way to meeting his difficulties, and also mine. In particular, it deals with the obscurity in the clause as unamended, which relates to the enforcement of collective agreements against persons other than those who gave the undertaking. This new insertion will make it clear that, in certain circumstances, actions by persons other than those who gave the undertaking can be treated as an unfair industrial practice. So that position is made clear.
The other branch of the difficulties which we expressed relates to the remedy which might exist in cases where there were breaches or actions contrary to an undertaking committed by a person other than the party who gave it—in the ordinary way, the trade union—and that has not so far been dealt with. Of course it arises under Clause 129, and I am not quite sure whether the Government intend to accept our suggestions, to accept the Amendment proposed by the noble Lords, Lord Diamond and Lord Stow Hill, or to do nothing. But perhaps I can leave that until the point arises.
But on Amendment No. 62, I should like to ask whether the noble and learned Lord can explain to my dull wit what is the difference between paragraph (a) and paragraph (b), because paragraph (a) seems to contemplate a breach of the undertaking and paragraph (b) covers acts which, in accordance with the undertaking, were to have been done or acts which, in accordance with the undertaking, were not to be done. I should have thought that paragraph (b) was as good a definition as one could get of a "breach of an undertaking". A "breach of an undertaking" seems to include doing what you should not have done, or not doing what you should have done. But it may be that there is some
912
more subtle thought involved in this which requires the insertion of both paragraphs. I should be most grateful if the noble and learned Lord could kindly explain the purpose of those two paragraphs. Apart from that, I am authorised by my noble friend Lord Tangley to say that he welcomes Amendment No. 62, and for my part I am very glad to do the same.
THE LORD CHANCELLOR: My Lords, if I may again have the leave of the House, and if I may gently chide my noble and learned friend, whom I regard as a lifelong friend, for his peculiar habits of debate, I should like to say that it would assist me greatly if he did not wait before putting his question until I have replied twice to the debate, but would take his part during the course of it. That would be both to the advantage of the House and a convenience to me. Secondly, I gently chide him for not taking advantage of my offer, which was meant sincerely, that he should discuss the more abstruse points of drafting with me personally, in order that I might have the advantage of Parliamentary counsel with me instead of at a remote degree away from me when I seek to reply—
LORD WILBERFORCE: My Lords, perhaps I may say that the Amendment was communicated to my noble friend Lord Tangley only on June 23, and it took a little time to reach me. With the speed at which my mind works, I am afraid that I did not have time to focus on it in time to consult with the noble and learned Lord. Otherwise, of course, I should have been very glad to do what he said.
THE LORD CHANCELLOR: My Lords, if a Double First and a Fellow of All Souls and a learned Law Lord cannot think more quickly than that, what is England coming to? All I would say is that I still gently chide my noble and learned friend. I have the advantage in this case of knowing both of the draftsmen of this Bill. One was a scholar with both of us at Oxford at the time when we were undergraduates, and the other was in my battalion during the war. But the fact of the matter is that the draftsman is a very careful man and I think he put it in ex abundanti cautela.
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, I beg to move Amendment No. 62.
Amendment moved—
Page 29, line 4, at end insert—
("( ) For the purposes of subsection (2) of this section action taken by a person other than the party who gave the undertaking in question (in this subsection referred to as "the contracting party") shall be regarded as action taken contrary to the undertaking if either—

(a) it is action which, if taken by the contracting party, would have been a breach of the undertaking by the contracting party, or

(b) it consists in doing that which, in accordance with the undertaking, was not to be done, or in not doing that which, in accordance with the undertaking, was to be done.").—(The Lord Chancellor.)

On Question, Amendment agreed to.
Clause 37 [Application to Industrial Court relating to procedural provisions]:
8.48 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 62B:
Page 29, line 17, after (" action ") insert (" likely to be seriously injurious to the industry concerned ").
The noble Lord said: My Lords, Clause 37 sets in motion the imposed procedure provisions. This is an elaborate procedure, which involves consultation by the Secretary of State with trade unions and appropriate employers; an application by him to the Industrial Court and then to the Commission; the formulation by the Commission of proposals for procedure arrangements; the publishing of proposals by the Commission for the purpose of inviting interested persons to apply to the Industrial Court, asking the Court to consider the proposals; the confirmation of the proposals by the Court; and eventually, after all that, the Court may impose a procedure order to be binding on the parties concerned.
My Lords, what I have so briefly described is a very elaborate procedure and clearly ought not to be lightly embarked upon. The words I am proposing in this Amendment are, I believe, words which will ensure that the procedure will not be started without very real justification. It will be seen that the words "seriously injurious" which I seek to import here are the words used in subsection (2) of Clause 141, which is the clause setting in motion the application to the Industrial Court for a ballot relat
914
ing to an industrial action. It seems to me that if the words "seriously injurious" are to be considered by the Secretary of State in that connection, they ought to be considered in connection with this procedure application. So I am seeking to put in here words which will indicate the seriousness of the procedure which is started by Clause 37 and carried on by the subsequent clauses and which will start all that elaborate business of the application to the Industrial Court, to the Commission and so on. What I am seeking to do is to ensure that the Secretary of State shall start that procedure only in the cases where he feels that the action which is thought of or is being proposed is likely to be "seriously injurious to the industry concerned". My Lords, I beg to move.
THE EARL of BALFOUR: My Lords, may I ask one question here before we go very much further at this stage? The only trouble with this Amendment, so far as I can see, is that it might prevent the Secretary of State from stepping in to try to create a procedure agreement where there was considerable unrest or unhappiness in a particular industry. It this Amendment were accepted, I have the impression that the workers in that industry, who might not be organised in any proper union, might have to go on strike, without any support from a union or any organisation behind them, before the Secretary of State could step in. If my reading of Clause 37 is correct, the Secretary of State is able to step in and try to get some sort of a procedure agreement going when a whole mixture of unions may be involved. I am asking this very much as a question, but that is what I feel could be the difficulty.
THE MINISTER OF STATE. HOME OFFICE (LORD WINDLESHAM): My Lords, I shall reply rather briefly. We discussed these clauses at considerable length in Committee. When we did so the noble Lord, Lord Champion, opened what he had to say on the first Amendment on May 18 by saying that the fundamental principles underlying these provisions were ones on which there was some agreement. He qualified that by saying that because of the way it was done he and the T.U.C. were not able to go all the way; but we did discuss them very thoroughly, and it might be helpful

915
if I replied as briefly as possible. There are two points contained in the Amendment which the noble Lord has just moved. The first, and the one to which he has given emphasis, is that the action should be likely to be "seriously injurious". The second is the words "to the industry concerned", which he did not refer to, but which are in fact very relevant indeed. I will say a brief word or two on each of those two points.
On the seriousness of the action which has been taken, we must make no mistake, my Lords: Clause 37(1)(a) and (b) and Clause 37(5)(a) and (b) are very carefully defined criteria indeed. These criteria are defined in the Bill and must be fulfilled before the Court will make an order. The Secretary of State or one of the parties can make an application, but before the Court makes an order for mandatory reference to the C.I.R. these criteria must be fulfilled. If we look at them, we see in subsection (1) that the first condition is:
" the absence of a procedure agreement, or the unsuitability of such procedure agreement as may exist for the purpose of settling disputes or grievances promptly and fairly ".
So there must be an absence of a procedure agreement or an unsuitable one. The second condition is:
" where a procedure agreement is in existence, recourse to industrial action (whether consisting of lock-outs, strikes or irregular industrial action short of a strike) contrary to the terms or intentions of that agreement ".
Then, in subsection (5) we see that the development or maintenance of orderly industrial relations in the unit must have been seriously impeded, and that there must have been substantial and repeated losses of working time in that unit. This spells out in some detail what the noble Lord has asked for, and that is that the action must be "seriously injurious".
The second point, which I shall not labour because he has not made a great deal of it, is that we could not accept the Amendment on the basis of the words "to the industry concerned". This clause and this series of clauses do not refer to industry-wide agreements: they refer to agreements in units of employment, in plants or in particular parts of plants. The idea is to try to get a procedure agreement which is specific
916
ally fitted to the unit of employment in which there has been this serious trouble. In reply to my noble friend Lord Balfour, I thought that perhaps his question was directed a little more to Amendment No. 62M, which the noble Lord did not move, rather than to Amendment No. 62B, which is the one to which he spoke.
LORD CHAMPION: My Lords, the only thing I would say, and particularly to the noble Earl, Lord Balfour, is that paragraphs (a) and (b) are of course alternatives. The words "one or both" precede them. As to the words "to the industry concerned", I now see the point which the noble Lord makes in that connection. What I was relating that phrase to was the case where an agreement is in existence. Where there is an agreement in existence, I was thinking in terms of an agreement which would affect the industry which I had in mind in my Amendment. But, my Lords, having regard to the fact that the noble Lord has made it quite clear that this procedure would be started only where there was likely to be something very serious resulting if we did not have reasonable procedural arrangements covering the unit concerned (I would use the word "unit" now, following the noble Lord's stress upon it) I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.59 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 62C:
Page 29, line 23, leave out (" trade unions ") and insert (" organisation of workers ").
The noble Lord said: My Lords, this is something to which we have made frequent reference throughout the whole of this Bill—the distinction which is drawn between a trade union and an organisation of workers. The exclusion of an organisation of workers from the provisions of subsections (2), (3) and (4) of this clause seems to me to be an extraordinary one. There may very well be serious difficulties existing in a unit of employment which are caused by an inadequate procedure agreement, but that unit of employment may be one in which the employer recognises an organisation of workers; that is, an unregistered trade union. In such a case, the Secretary of State would not consult the

917
organisation of workers despite the fact that the employer recognises that organisation for negotiation purposes. That organisation would not be a party under subsection (4), and would not receive the advice and assistance of the Secretary of State.
What I understand the Government to be trying to do throughout this Bill is to bring improved industrial relations into being. We do not agree that they will do that but we recognise that they are trying seriously to achieve better industrial relations. Part of the attempt to do that is to bring about circumstances in which there shall be existing in all units mentioned in this clause procedure arrangements which will lead to the sort of understanding that ought to exist in any unit of employment. But what the clause does in this rather silly business of trying to force organisations of workers to register and therefore to fall absolutely and entirely within the clause, is to exclude them from the advice and assistance which the Secretary of State may give and from starting the procedure.
I think that there is purpose in this Amendment. I am not trying merely to "have another go" about "organisation of workers" and "trade union". Rather I am trying to ensure that where the procedure would be improved by the use of the words "organisation of workers" in addition to "trade unions", those words are added. I say that it improves the clause and that it will ensure that the things I have said are necessary are carried out. I beg to move.
9.0 p.m.
LORD WINDLESHAM: My Lords, I appreciate the way in which the noble Lord has moved his Amendment. Like him, I do not think this is the time to go back over the long debates we had on registration. I do not think this clause will have the effect that he fears and I think I can reassure him on part of what he had to say, if not on all. The registered trade union would be able to initiate this process. It could be initiated by the employer or a trade union and therefore, by definition, a registered trade union. If the union has not registered or has taken action to have itself taken off the register, that is not to say it will not be consulted by the Secretary of State or by the conciliation staff of the
918
Department of Employment. If the noble Lord looks at Clause 37(4) he will see in paragraph (a):
" the Secretary of State shall offer such advice and assistance to the party giving the notice, and to such other parties as appear to him to be directly concerned, as he may consider appropriate with a view to promoting agreement…".
If a union has taken action to have itself taken off the register, the Secretary of State can say that here is a party which is not a trade union but which is affected by the dispute and which must be consulted. This is also the case if we turn to Clause 38(1) which is the subject of a later Amendment. The consultation at that stage would be with any party which the Commission believes is likely to be affected. Therefore the process of consultation would not be affected in the way that he says, although he is right about the point of initiating the process.
LORD CHAMPION: My Lords, that puts my doubts at rest to some extent; but subsection (2) of Clause 37 says:
" The parties to whom this section applies in relation to a unit of employment, other than the Secretary of State, are the employer and—"
then it goes on to the trade unions and then in paragraph (b) it says:
" where a procedure agreement is in existence which applies to that unit…"
When we get to subsection (4) it says:
" The Industrial Court shall not entertain an application made under this section by a party other than the Secretary of State…"
Then in (4)(a):
" the Secretary of State shall offer such advice and assistance to the party giving the notice…"
This creates a difficulty in my mind; but I do not wish to pursue the matter unless the noble Lord feels that there is an answer he might give me on this point before I ask leave to withdraw the Amendment.
LORD WINDLESHAM: With leave, I merely reassure the noble Lord that what I said is correct.
LORD CHAMPION: My Lords, as the noble Lord is so absolutely sure that what he said is absolutely correct, I have no course open but to ask leave to withdraw the Amendment and to tell him that between now and the Third Reading

919
I shall read what he has said so correctly in case he is not quite as correct as he feels he is.
Amendment, by leave, withdrawn.
LORD WINDLESHAM LORD WINDLESHAM moved Amendment No. 62K:
Page 30, line 32, after (" Commission ") insert (" after consultation with the employer and with any trade union appearing to the Commission to be likely to be affected ").
The noble Lord said: My Lords, I beg to move Amendment No. 62K standing in the name of my noble friend, Lord Drumalbyn, and with it perhaps I may speak to Amendment No. 62L to Clause 43 which is consequential. The Amendment to Clause 38, No. 62K, has been put down to meet a point made in Committee in support of a very similar Amendment moved by the noble Lord, Lord Champion. The noble Lord argued that this clause—which was originally Clause 36 and is now Clause 38—might lead to employers and the trade unions concerned not being consulted by the Commission on Industrial Relations about any proposal for extension of the unit of employment. On that occasion my noble friend, Lord Ferrers, said there was no objection in principle to accepting the Amendment which had been moved from the Benches opposite, but that there might be some slightly different drafting to ensure that it achieved its intended purpose. Accordingly, we have taken advice from the draftsmen and this Amendment is the result. While it is very similar lo the one we discussed previously it defines more precisely the extent of agreement, thus ensuring that it shall not be interpreted more narrowly than the noble Lord, Lord Champion, said was his intention when the original Amendment was moved in Committee on May 18. Similarly, the Amendment to Clause 43 ensures that where the reference is related to a composite unit the requirement to consult shall apply to each employer in that unit.
LORD CHAMPION: My Lords, I am grateful to the Government for having put down this Amendment. I think it was put down after my Amendment No. 62D but perhaps that is not so. Amendment No. 62D was put down in order that I might ask the Government to ensure they carried out their undertaking given on
920
Committee stage by the noble Earl, Lord Ferrers. I am grateful to the noble Earl for looking into the matter and to the noble Lord, Lord Windlesham, for moving this Amendment which I am sure the House will be happy to accept.
LORD WINDLESHAM: My Lords, I ought to say—in case there is any misunderstanding in the light of our previous discussion—that the wording of our Amendment that the Commission would consult
" with the employer and with any trade union appearing to the Commission to be likely to be affected "
relates of course to a registered trade union; that is inherent in the wording of the Amendment.
LORD CHAMPION: My Lords, if I may speak again, I would say that that is the only flaw I see in the Amendment.
On Question, Amendment agreed to.
9.10 p.m.
Clause 41 [Extension of Sections 35 to 40 to composite unit]:
LORD CHAMPION LORD CHAMPION moved Amendment No. 62J:
Page 33, line 2, leave out from beginning to end of line 6.
The noble Lord said: My Lords, this is an Amendment which was put down and intended to be consequent on the Amendment to Clause 36. The noble and learned Lord, the Lord Chancellor, dealt fairly fully with this when speaking to the Amendment that I moved to Clause 36. I then said, I think, that I would have to study very carefully what he said and consider it before Third Reading because this is an important step to take—by order of the Industrial Relations Court to impose on a trade union something equivalent to that trade union having entered into a contract which might be legally enforceable. I do not know whether the noble Lord has anything to say in addition to what the Lord Chancellor said. It seems to me that there is no case for me to rehearse the arguments used then, but I should like to know whether the noble Lord has given any consideration to these words and whether he can tell us anything more about them than did the noble and learned Lord the Lord Chancellor, when replying to the previous Amendment.
LORD WINDLESHAM: My Lords, I agree that what my noble and learned friend on the Woolsack said is relevant to this Amendment. It is an Amendment of considerable substance and importance. The noble Lord, Lord Champion, has correctly identified the few lines in Clause 41 which are the final conclusion to the whole process described in this set of clauses. The noble Lord may remember that when we debated the subject in Committee I drew the analogy that this special procedure, designed to meet special situations, is similar to a long road with a number of exists which the parties may take at various stages by agreement. It is a road that very few will travel to the end; but we believe that for those determined to do so there must be some clear-cut conclusion. These words in Clause 41(2) represent the final conclusion when all else has failed.
I need only add to that general description one or two short points. We must remember that the order, which is to take effect as though it were a legally enforceable contract, will not be made by the Court unless one of the parties applies for it. The Secretary of State cannot make an application for an order under Clause 41, whatever he thinks about the matter. The C.I.R. cannot make an application, even though they have considered and drawn up the proposals and however strongly they may feel about it. The N.I.R.C. itself cannot take the initiative here. It must be an application within six months by one of the parties. There is this vital period of up to six months for the parties to come together. Then an order can be applied for by the trade union or by the

CONTENTS

Beswick, L.

Hoy, L.

Seear, Bs.

Buckinghamshire, E.

Hughes, L.

Shepherd, L.

Champion, L.

Janner, L.

Slater, L.

Davies of Leek, L.

Llewelyn-Davies of Hastoe, Bs.

Stonham, L.

Diamond, L.

Maelor, L.

Stow Hill, L.

Gardiner, L.

Milner of Leeds, L. [Teller.]

Taylor of Mansfield, L.

Garnsworthy, L. [Teller.]

Phillips, Bs.

Wade, L.

George-Brown, L.

Reay, L.

White, Bs.

Greenwood of Rossendale, L.

Rusholme, L.

Hey-cock, L.

St. Davids, V.

NOT-CONTENTS

Aberdare, L.

Balfour, E.

Brooke of Cumnor, L.

Ailwyn, L.

Barnby, L.

Brooke of Ystradfellte, Bs.

Allerton, L.

Belhaven and Stenton, L.

Buchan, E.

Amherst of Hackney, L.

Belstead, L.

Burnham, L.

Amory, V.

Berkeley, Bs.

Caldecote, V.

Balerno, L.

Brabazon of Tara, L.

Cork and Orrery, E.

employer. I do not suppose that it will be only one of the parties who will use this procedure. It may be the employer or it may be the trade union. It is open to either of them, whichever is interested in improving the procedure agreement, to make an application at the end of this long road. I do not think that there is anything further I need to add to what has been said already on this clause.
LORD CHAMPION: My Lords, I did not go to any length in moving this Amendment because I spent some time on it when discussing Clause 36. I am bound to say that although the noble Lord has given an explanation which may sound reasonable, the words I propose to leave out are not reasonable. They are words which impose on a trade union an obligation into which they have never entered. It tells them that they must behave in relation to an order of the Court in exactly the same way as if they had themselves entered into a collective agreement covering those matters. Following the preceding words in Clause 41, these words are of such a nature that we are bound to vote against them. We object to them strongly. We have no other course to follow but to divide against them and once again register our protest against something which is wholly objectionable to anybody who has ever had anything at all to do with trade unions.
9.18 p.m.
On Question, Whether the said Amendment (No. 62J) shall be agreed to?
Their Lordships divided: Contents, 28; Not-Contents, 73.

Craigavon, V.

Hailes, L.

Nugent of Guildford, L.

Craigmyle, L.

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

Oakshott, L.

Crathorne, L.

O'Neill of the Maine, L.

Cullen of Ashbourne, L.

Harvey of Prestbury, L.

Rankeillour, L.

De L'Isle, V.

Harvey of Tasburgh, L.

Rhyl, L.

Denham, L. [Teller.]

Hastings, L.

Ruthven of Freeland, Ly.

Derwent, L.

Hatherton, L.

St. Aldwyn, E.

Drumalbyn, L.

Hood, V.

St. Just, L.

Dundee, E.

Hylton-Foster, Bs.

Sandford, L.

Elliot of Harwood, Bs.

Inglewood, L.

Savile, L.

Emmet of Amberley, Bs.

Jellicoe, E. (L. Privy Seal.)

Selkirk, E.

Essex, E.

Killearn, L.

Selsdon, L.

Falkland, V.

Lauderdale, E.

Somers, L.

Ferrers, E.

Macleod of Borve, Bs.

Strathclyde, L.

Ferrier, L.

Massereene and Ferrard, V.

Tweedsmuir of Belhelvie, Bs.

Goschen, V.

Merrivale, L.

Vivian, L.

Gowrie, E.

Mersey, V.

Windlesham, L.

Gray, L.

Mowbray and Stourton, [Teller.]

Wise, L.

Grenfell, L.

Gridley, L.

Resolved in the negative, and Amendment disagreed to accordingly.
Clause 43 [Extension of ss. 37 to 42 to composite unit]:
9.25 p.m.
LORD WINDLESHAM: My Lords, I beg to move Amendment No. 62L in the name of my noble friend Lord Drumalbyn. This is consequential on Amendment No. 62K.
Amendment moved—
Page 34, line 8, leave out (" section 37(2)") and insert (" sections 37(2) and 38(1)").—(Lord Windlesham.)
On Question, Amendment agreed to.
Clause 44 [Definitions relating to bargaining structure]:
9.26 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 63:
Page 34, line 22, leave out from (" employers ") to end of line 24 and insert (" in relation to whom collective bargaining, in respect of such matters as are not dealt with under more extensive bargaining arrangements, is, or could appropriately be, carried on by an organisation of workers or a joint negotiating panel, or partly by an organisation of workers and partly by a joint negotiating panel ").
The noble Lord said: My Lords, it may be for the convenience of your Lordships to take Amendments Nos. 63, 64, 65, 66, 68, 69 and 70 together. The purpose of these Amendments is to deal with a point which has been raised with us by a number of employers' associations. It is this. Your Lordships will be aware that since we are here dealing essentially with plant as distinct from
924
industry-wide bargaining, the bargaining agency provisions of the Bill are limited to single employers or employers who are associated in a financial sense. At the same time, over wide areas of industry it is exceptional for all the terms and conditions of a group of employees comprised in a bargaining unit to be negotiated by the agent for that unit; for example, in a typical engineering firm the basic wage rates of the workers (as was pointed out in the Donovan Report, paragraph 36), together with a number of the other terms and conditions of their employment will be negotiated nationally between the Engineering Employers' Federation and the Confederation of Shipbuilding and Engineering Unions. But these nationally agreed terms and conditions are almost invariably supplemented at company level by further agreements which, for example, provide for payments at a rate above the basic rate. Clearly, the bargaining agency provisions must be sufficiently flexible to deal with a situation where there may be bargaining at different levels in respect of a particular group of employees. We had thought that the Bill achieved this result because, as your Lordships will see, the C.I.R. has power, under Clause 48(7), to make its recommendations subject to any conditions it thinks fit, but now we are advised that this does not cover the point.
The Amendments basically do two things. First of all, Amendments Nos. 63 and 64 make some necessary modifications to the definitions of "bargaining unit" and "sole bargaining agent" in Clause 44; and Amendment No. 66 provides a new, and I think self-explanatory,

925
definition of the phrase "more extensive bargaining arrangements". These Amendments to the existing definitions are necessary to make it clear that the bargaining of a "bargaining unit" relates in the case of a particular group of employees to those terms and conditions of their employment which are not the subject of negotiation under more extensive bargaining arrangements; and second, that the sole bargaining agent has no negotiating rights in respect of matters which are dealt with under the more extensive bargaining arrangements.
The second object of the group of Amendments is to enable the C.I.R. to do what we thought it already had the power to do under Clause 48(7). That is, Amendment No. 68 would, if your Lordships agree, insert a new subsection into Clause 48 empowering the C.I.R. to make its recommendation subject to a reservation that the recommended bargaining agent shall not have exclusive negotiating rights in respect of matters which are dealt with under more extensive bargaining arrangements.
I should perhaps explain that where the C.I.R. finds that there are more extensive bargaining arrangements in existence it will not be in every case that its recommendation in favour of the sole bargaining agent would be subject to a reservation in these terms. This new subsection will give the C.I.R. discretion to decide whether or not the more extensive bargaining arrangements should be accorded priority over the negotiating rights of the recommended agent. This seems to us to be important. As your Lordships will know, the Donovan Report recommended an extension of company-wide bargaining and it would not be sensible if we required the C.I.R. to accord supremacy to national bargaining arrangements in every case where they existed. Nevertheless, I must make it clear that the C.I.R. would be unlikely to do anything to disturb national arrangements which were working satisfactorily with the agreement of all concerned.
Finally, there are two small consequential Amendments necessary because of this change. First, it is necessary to make reference in Clause 49 to the possibility of a reservation by the C.I.R. under the new subsection to be inserted into Clause 48. Secondly, the new subsection (1)(a) to be inserted into Clause 50 by virtue of
926
Amendment No. 70 will require the Industrial Court, when it makes a recognition order enforcing a C.I.R. recommendation which is subject to a reservation under the new subsection (8) of Clause 48, to specify in the order the more extensive bargaining arrangements. We think this is sensible so that everyone will know where he stands.
I hope that with this explanation your Lordships will agree that these Amendments are necessary. In view of the scale of these Amendments, I would stress that they are not the result of the Government's suddenly waking up to the fact that there can be overlapping bargaining. We knew this all along, but we thought that the Bill as originally drafted adequately catered for it. We are now advised that this is not so and these Amendments are designed to express our intention in a manner which cannot give rise to doubt, and I think a manner which will be acceptable to noble Lords opposite. I beg to move.
LORD CHAMPION: My Lords, I am grateful to the noble Lord, Lord Drumalbyn, for his careful explanation of these Amendments. I am bound to say that if we are going to have this procedure—and in some ways I agree with this procedure of establishing sole bargaining agents—I am certain that the Amendments do bring something to Clause 44 which was formerly missing. I cannot pretend that I had discovered it was missing until I read these Amendments on the Marshalled List. Then I realised that I ought myself to have put down these Amendments on Committee stage. But as I failed to do so, all I can do at this stage is to welcome the Amendments which have been drafted and suggest that the House should certainly do nothing to prevent their becoming part of this Bill.
On Question, Amendment agreed to.
9.33 p.m.
LORD DRUMALBYN: My Lords, Amendment No. 64 is consequential. I beg to move.
Amendment moved—
Page 34, line 35, at end insert (" except in respect of matters which are dealt with under more extensive bargaining arrangements ").—(Lord Drumalbyn.)
On Question, Amendment agreed to.
LORD DRUMALBYN: My Lords, I beg to move Amendment No. 65.
Amendment moved—
Page 34, line 41, leave out (" and ").—(Lord Drumalbyn.)
On Question, Amendment agreed to.
LORD DRUMALBYN: My Lords, I beg to move Amendment No. 66.
Amendment moved—
Page 34, line 44, at end insert (" and
(f) "more extensive bargaining arrangements", in relation to any particular employees or descriptions of employees of an employer, or of two or more associated employers, means arrangements for collective bargaining in respect of matters common to those employees or descriptions of employees and to other employees or descriptions of employees, whether of the same employer or employers or of one or more different employers ").—(Lord Drumalbyn.)
On Question, Amendment agreed to.
Clause 45 [Application to Industrial Court for reference as to recognition of sole bargaining agent]:
9.35 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 66A.
Page 35, line I, leave out from (" to ") to second (" the ") in line 2.
The noble Lord said: My Lords, this is the last almost despairing attempt to bring some sense into these clauses which relate to the recognition of a sole bargaining agent in respect of a bargaining unit. What the Amendment seeks to do is to provide that an application made under this clause by one of the persons or bodies named in subsection (2) of the clause shall be made directly to the Commission instead of to the Industrial Court. There are some 23 references to the Industrial Court in the four clauses beginning with this one and ending with Clause 49. It seems to me that in none of these clauses is the Industrial Court required to take any positive action which could not as well be done by the Commission. In most of the 23 references, the Court is to act as a post office, merely passing on something to the Commission, or filtering matter that has to go to the Commission. When acting as a filter it has to do something which could be done much better by the Commission itself. Not until we get to Clause 50, in which the Court may be asked to make an
928
order, do we find the Court having to do anything really positive on its own account.
Clause 50 provides that in the event of the employees in a bargaining unit voting by a majority in favour of the recommendation of the Commission, then the Court shall make an order having the legal effect of making either a trade union or a joint negotiating panel the sole bargaining agent. At that stage the Court has to take an action proper for a high-powered court, for the nature of the order to be made is to command obedience and, if not obeyed, to render those who do not obey liable to certain sanctions. Until that stage of the procedure outlined in Clauses 45 to 50 is reached, there seems to be not the slightest justification for bringing the Industrial Court into this procedure at all. The Industrial Court will have enough to do under many other clauses of this Bill without acting as a postman or filtering agent. To relieve it of this trifling work would appear to me to be well worthwhile.
Clearly, if this Amendment is accepted, a lot of consequential Amendments would have to be made but I can safely leave those to the Parliamentary draftsman if, by any chance, the noble Lord, Lord Drumalbyn, accepts my Amendment. I think this would introduce into these clauses a worthwhile set of proposals, causing the Commission—a body that really will know something about the whole business of sole bargaining agents—to do the work without the unnecessary references to the Industrial Court. This is not moved in a spirit of obstruction or time-wasting, but is an indication of a genuine desire on my part to bring some sense into these clauses—which are, I admit, very important clauses. I beg to move.
9.40 p.m.
LORD DRUMALBYN: My Lords, the noble Lord, Lord Champion, as usual has moved his Amendment, which is undoubtedly an important and really fundamental one, in an extremely conciliatory way. I fully recognise, and I am sure all on this side of the House do, that the Opposition are not yet reconciled to the idea of having an Industrial Court. But, my Lords, I think what we must consider

929
is the rôle of the Industrial Court as regards the provisions for recognition of a sole bargaining agent; whether there should be an Industrial Court and, if there is, whether it should be involved at all. Those are the questions which the Amendment implies.
There is of course a genuine point of difference between us. It is a difference which I hope will tend to disappear with time. I am aware that in the recognition provisions of the Bill put forward by the noble Lord's Party when they were in power it was provided that applications for recognition could be made direct to the C.I.R., but there is a very genuine and important point of difference between the approaches in this matter, and it is this difference which is the first justification for having the Industrial Court in the process.
The difference is this. In the previous Administration's Bill only the Secretary of State could refer recognition disputes to the C.I.R. In the Bill which is now before your Lordships, the Secretary of State can still initiate a procedure which ends in a reference to the C.I.R., but the parties themselves, the employers and the unions, can also make application to the Court for a reference. It is an important element in our general philosophy in this matter that the parties themselves should be able to do this. If applications can be made not only by the Secretary of State but also by the parties themselves, there obviously has to be some way of sifting the applications to make sure that they are valid and that voluntary means of settling the dispute have been used and have failed. It would be time-consuming, at any rate for the C.I.R. to have to do this job itself, and the C.I.R. is going to be a very busy body (without the hyphen!).
I pointed out when we discussed this matter in Committee that it would be far better for the C.I.R. to concentrate its industrial expertise on investigations entrusted to it than to spend its time determining the validity of applications. That, after all, is essentially a judicial task. The sifting of criteria is strictly limited and factual in nature and entirely appropriate for a judicial body to consider. Since those criteria are set out in the Bill, in Clause 46, I need not describe them now. I need only say that one of the most important criteria on
930
which the Court will have to consider an application is whether the parties have attempted to settle the matter themselves. This is consistent with our general philosophy of emphasising that recourse to the machinery of the Bill must take place only after voluntary methods have failed. I should have thought that this would commend itself to noble Lords opposite.
The second and most important reason why I think the Industrial Court must be in at the very start of the recognition process—and this clause deals with that—is that in the last resort there is the possibility of a statutory order compelling an employer to comply with the C.I.R.'s recommendations. I thought even the noble Lord, Lord Champion, could see some point in this. He referred to the fact that when we get to Clause 60, I think, the Court alone can decide the issue. Given that there is this possibility, however remote—and we all hope that it will occur very rarely—it seems to us right that the judicial body, the National Industrial Relations Court, should take applications in the first instance for references to the C.I.R. It seems to us equally right that the judicial body should make the order rather than the Secretary of State, as was the case in the previous Administration's Bill. We debated this matter in Committee and there was a similar debate in another place, but I felt that your Lordships would expect me at any rate to summarise our attitude and the way in which and the reason why it differs from that of the Opposition. I hope that noble Lords will accept the validity of our reasons even if they cannot agree with the framework which the Bill establishes.
I should like to mention two other things. The first is the character of the Commission. We expect the Commission to be the adviser and friend, and not in any way the boss. We think it is better to have a court which will give the decisions, however unpopular they may be in some quarters, rather than the C.I.R. should do this. Another point is that we would surely need a court of some kind because if these matters were left to the Commission—that is to say, unless we were going to allow the Secretary of State to settle the matter, and I think we all recognise that there are objections to that—there would have to be some form of appeal anyway, and that could only be

931
to a court if it were not to the Secretary of State. Therefore, I suggest there is a real reason for having the Court in these circumstances.
I hope that noble Lords will become reconciled to this system. I know they still feel difficulty in accepting it, but it has been very carefully thought out and I would say very strongly to noble Lords opposite that it is largely with the object of preserving the Commission in the form in which I think both sides would feel it should be that we are proposing this kind of machinery.
LORD CHAMPION: My Lords, let me say straight away that the Amendment I moved had no source in any opposition that might be felt on this side to the idea of the Industrial Court. It never entered my head that this was part of any such opposition. I must admit that if my noble friends feel that, I have no deep-rooted opposition myself to an industrial court doing certain things. In this connection my thought was that we ought not to have the Industrial Court doing a lot of time-consuming work that could very well be done by the Commission. The noble Lord said, "We did not want the Commission to be doing time-consuming work in determining the validity of an application." I would not want the Industrial Court, which the noble Lord has told us is going to be a very, very busy court, determining the validity of an application. "Time-consuming work" by the Industrial Court was a point I made in moving the Amendment. I agree that when it comes to making an order which should have all the enforceability possible behind it, at that stage the order should be made by the Industrial Court; and Clause 50 provides for that. It was no intention of mine that the Court should be taken out of the procedure at that stage.
My Lords, I feel that the noble Lord has been very reasonable in his explanation here, as indeed he was during the Committee stage. I have returned to the point because I still feel that something ought to be done in the way of a last-ditch attempt to get the Government to see sense about this; but having regard to the careful and courteous explanation which the noble Lord has given us, I beg leave to withdraw the Amendment.
Amendment by leave, withdrawn.
9.50 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 66B.
Page 35, line 23, at end insert—
("( ) one or more organisations of workers, or ")
The noble Lord said: My Lords, this clause commences the procedure for a decision on whether a sole bargaining agent should be recognised by the employer or employers in a given set of circumstances. Under the provisions of Clause 48, the Commission, having thoroughly examined a reference to it, prepares a report setting out its recommendations. That clause makes it quite clear that the Commission may recommend that an organisation of workers—that is, an unregistered trade union—could be the sole bargaining agent for the unit in question. Clause 48 says also that the Commission shall transmit a copy of its report to, among others, an organisation of workers if it appears to the Commission to be directly concerned in the questions specified in the reference. Yet, despite all that, we have the stupid situation created by Clause 45 in which a trade union, or the employer or employers, or the employer or employers jointly with one or more trade unions, or the Secretary of State, can make an application to commence the proceedings which may end in an unregistered trade union being recommended as the sole bargaining agent; but it is not empowered itself to make an application to set all this procedure in motion.
The purpose behind this procedure—and, as I understand it, the whole Bill—is to try to improve industrial relations in this country. The clause we are considering is an attempt to bring about a greater degree of orderly negotiations in given bargaining units. It may well have that effect, but we ought to try to get the procedure off on the right foot by dropping this nonsense of the exclusion of the unregistered trade union from this clause of the Bill.
I think this is sensible and I hope the Government will accept it. The references I have made to clauses in subsequent Amendments make it quite clear that the organisation of workers must be recognised by the Commission and others in some circumstances. Surely it is justifiable that the organisation of workers should be recognised at the very outset,

933
and the acceptance of my Amendment would enable that to be done. I beg to move.
LORD BELSTEAD: My Lords, we have debated this matter more than once in this Committee and it has been examined thoroughly in another place. On the main point—whether unregistered organisations should be able to take advantage of the recognition provision—I hope that the Committee will not think me discourteous when I say that noble Lords know well that it is a fundamental principle of the Bill, as it stands, that the substantial new rights which it proposes for trade unions should apply only to those which by registering accept statutory minimum standards in relation to their rules and the rights of their members. I realise that there is disagreement on this but I am simply relating what the Bill says. The right to make an application to the Industrial Court under this clause is one such right and that is why I am going to invite your Lordships to resist the Amendment.
The noble Lord, Lord Champion, drew attention to the apparent inconsistency that although the Bill forbids an unregistered organisation from making an application under this clause, it is nevertheless possible for the claim for recognition of an unregistered organisation to be examined by the C.I.R. through an application by the employer or the Secretary of State; and for the C.I.R. to recommend that an unregistered organisation, provided that it is independent under Clause 48(4)(a), should be a sole bargaining agent.
But I would suggest to the House that there is no inconsistency here. In the section of the Bill dealing with recognition there are basically two substantial new rights; first of all, the right to make an application to the Court for a reference to the C.I.R. for the examination of a recognition issue (Clause 45(2)); and, secondly, the right to apply to the Court for a ballot on the C.I.R.s recommendation after a reference (Clause 49(1)). In both these cases unregistered organisations may not, I admit, avail themselves of these rights. This is a principle fundamental to the Bill—noble Lords opposite will not agree, but I think they will understand. On this side we have thought that it would be quite wrong to forbid
934
the C.I.R. from recommending an unregistered organisation either as a sole bargaining agent or as a party on a joint negotiating panel, if that was the most appropriate thing for the C.I.R. to do. Of course it might well be that an employer would voluntarily accept the recommendation. Therefore question (b) in Clause 45, subsection (1), is framed in terms of organisations of workers, that is, unregistered.
However, when it comes to applying for an order enforcing the C.I.R.s recommendations no application can be entertained in respect of an organisation which is not registered. If an unregistered organisation which is recommended as sole bargaining agent by the Commission wants to take advantage of the substantial new right, then, as I think noble Lords are familiar, it has to get itself registered before making an application to the Industrial Court, and Clause 49(1) provides that application for a ballot must be made within six months of the C.I.R.s report, so in fact it has six months to do this.
If noble Lords opposite would accept for a moment that it is a Government principle in this matter that the substantial new rights under the Bill should be available only to registered trade unions, then perhaps we may meet, on the ground that we have taken this as our logical position and that we could have gone to extremes by insisting that the C.I.R. might not even recommend an unregistered organisation as a sole bargaining agent. But we have not done this. What we have done is perfectly fair to unregistered organisations. In Committee my noble friend Lord Drumalbyn pointed out that it really is a privilege to apply to the court to have an order made in your favour which is going to be binding on the employer, and this basically is the reason why I must ask your Lordships to resist the Amendment proposed by the noble Lord, Lord Champion.
LORD CHAMPION: My Lords, there is, and continues to be, a great divide between the Government and the Opposition in this matter. The noble Lord referred to rights in the Bill in one part of his speech; in another part he referred to the privileges which will be conferred by registration. We cannot accept that

935
there are any privileges conferred under this Bill by registration. We do not think that that is the case. We do not think that this proposal to exclude the organisation of workers from being able to make an applicaton to the Court, despite the fact that they may be the body recognised by the employer in such a bargaining unit, is right. It seems an extraordinary thing that they shall not be able to go to the Court to try to get themselves declared as a sole bargaining agent in this connection because they do not think they ought to accept registration. The noble Lords on the Government side, and the noble Lord who has just spoken, are I am sure desirous of ensuring that reasonable negotiating procedures shall exist in industry. To some extent that is what these clauses are all about. It is not reasonable to say that negotiating procedure ought not to be reasonably established if it so happens that the party who might make the application for its initiation were the Government to permit it is the organisation of workers and not the trade union. In so many cases the organisation of workers would be the very people who ought to be able to start this procedure going, as well as the Secretary of State, the trade union and others that are mentioned in this particular clause.
I think the Government are making a mistake here. I realise that having discussed it a few times they are not now going to change their mind about it. We, for our part, are not going to change our minds in thinking that this is a wholly unjustifiable move by the Government and may in fact impose difficulties in this whole procedure of trying to secure in some industries, where the union concerned is an unregistered union, the institution of this procedure that might bring about that a body—the organisation of workers, for example—is the sole bargaining agent. The noble Lord told us that an unregistered organisation can, or may, very well be recommended by the Commission eventually as the sole bargaining agent. That being so, it surely is extraordinary that they cannot start the procedure that might bring this about. That a bargaining unit might be deprived of the procedure which is envisaged n these clauses purely because it is an unregi
936
stered union seems to be something which ought not to persist. I know that the noble Lord cannot reply to any point I have made. I have only spoken in reply on this Amendment because I feel that this is a matter upon which we must register our final protest by going into the Division Lobbies in favour of our Amendment.
LORD DIAMOND: My Lords, I should like to say a word or two in support of what my noble friend said. Although I did not hear everything my noble friend said in moving this Amendment because one has many responsibilities in connection with a Bill of this length and complexity—and it is always very unwise to assume that one knows even what such a close friend as my noble friend Lord Champion would have said—nevertheless I want to say a word or two in view of the language used by the noble Lord in replying to my noble friend. I want to make it as clear as I can to the Government that the continuation of their attitude is going to embitter relations between the Government and the unions beyond repair.
LORD BELSTEAD: My Lords, with the leave of the House, may I ask the noble Lord a question?
LORD DIAMOND: My Lords, if the noble Lord wishes to do that now or respond to me afterwards, I and my noble friends will give him every possible leave of the House, so that he can reply to the comments of a serious nature that I have to make.
LORD BELSTEAD: My Lords, may I simply ask the noble Lord a question? The terms of this Amendment relate to unregistered organisations of workers, and the noble Lord is saying, in round terms, that the resistance from this side of the House will embitter relations between the Government and the trade unions. Doubtless the noble Lord will go on to establish his case, but I should like to ask, in terms of a question, exactly where the noble Lord's remarks are leading? It does not seem to me that what the noble Lord is saying ties up with the terms of the Amendment.
LORD DIAMOND: My Lords, the noble Lord did not give me much opportunity. When the noble Lord asked a

937
question, I gave way. If the noble Lord is saying that I should use the term "trade union" in the narrow sense in which he is using the term in this Bill when it becomes law, then of course I am not. I am talking about the situation as it is to-day; and everybody knows that when one refers to the trade unions and the trade union movement one means something like 10 million citizens of this country who are organised under trade unions and whose livelihood and standards are protected by those unions.
BARONESS EMMET OF AMBERLEY: Is the noble Lord, Lord Diamond, not in danger of making a Second Reading speech on an Amendment?
LORD DIAMOND: My Lords, I am in danger of not making any speech at all if I have as many interruptions as this before I have had an opportunity of explaining why the words to which I am going to refer, used by a Minister in replying to the Amendment, are wholly damaging to the cause of industrial relations. If I am unable to do that, then of course we cannot make any progress at all. I shall do this as reasonably and as responsibly as I can, bearing in mind that I have had some 10 years' experience, as a Chairman in the other place, of rules of order, although of course I cannot speak with anything like that authority as to your Lordships' House.
I wish to make it quite clear that when the noble Lord talks about the rights of the workers he is using, unwittingly, a most irritating phrase. All I see in his description is the removal of the total rights which trade unionists have enjoyed for a century and the return of a small portion of those rights which the noble Lord now regards as giving rights to workers. That is the way in which I look at it, and that is how the trade union movement regards it. For him to take away the majority of those rights and to restore a few conditionally under very heavy and onerous conditions, and then to call that giving rights, adds insult to the injury of which we complain.
I hope we have made it absolutely clear why we feel as we do. I have responsibility for saying that because the Government presumably want to improve
938
industrial relations, which is essential for the Government's economic policy and for their continued viability. Therefore, this goes right to the root of that matter. The Government's refusal to accept this Amendment, and their refusal to consider what is really behind this proposal impels us to make the position as clear as we possibly can. I would not be speaking like this if I did not think that the situation was getting worse and has reached a very sorry state indeed.
The proposal is a very moderate one. It is to allow a body of persons to be chosen by their constituents—if you like, chosen by the workers—and approved by an organisation especially set up to make an independent approval; namely, the Commission. All this Amendment proposes is that when the workers make this choice of their own free will and the proposal is approved by an independent body like a Commission, then the workers should have their way. That is all we are asking for, and the Government are making that impossible unless several additional and onerous conditions which we shall come to at our next stage of the debate are complied with.
I hope I have made clear why we resist the attitude of the Government. We push these Amendments as often as we can, and we resent bitterly that insult should be added in the form of liberties which are to be removed being called rights which are given to us.
LORD DRUMALBYN: My Lords, I do not think one can allow the noble Lord to get away with that. He must surely recognise by this time that we are setting up procedures which, in the last resort, will allow some degree of compulsion. These are new rights and they are designed to take the place of the unilateral exercise of means which disrupt the lives of many people. It is in order to exercise these rights that we think it right to require that unions on whom they are conferred should register; and it is for that reason that within a period of six months from the time when the C.I.R. may say that an organisation of workers would be the appropriate bargainng unit for a plant—this is not a case where it is already the bargaining unit, but only where it would be the appropriate bargaining unit—a union can, if it wishes, become registered. The Court will be

939
in a position to give the direction referred to in Clause 50 that,
" from the end of the period of two months beginning with the date on which the order is made, and so long as the order continues to be in force, that union or joint negotiating panel shall be recognised as sole bargaining agent for that bargaining unit."
That is a right, and of course the institution of the agency shop is another new right. There again, a union must be registered in order to claim that right.
LORD DIAMOND: My Lords, may I attempt to reconcile our totally different views? Why does the noble Lord keep calling this a new right? It has certainly not been on the Statute Book before, but in practice it is not a new right. It is something that goes on all the time; the Government are proposing to attach conditions to an existing practice. The noble Lord cannot call that a new right.
LORD DRUMALBYN: My Lords, all these rights are new rights, given the statutory right of the individual to choose to belong or not to belong, which is the very basis of the Bill. We do not think that this is in any way unreasonable and I hope that noble Lords will not do anything to suggest that we are engendering

CONTENTS

Blyton, L.

Hughes, L.

St. Davids, V.

Champion, L.

Janner, L.

Shackleton, L.

Diamond, L.

Kennet, L.

Shepherd, L.

Gardiner, L.

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

Walston, L.

Garnsworthy, L.

Wynne-Jones, L.

Hoy, L.

Milner of Leeds, L. [Teller.]

NOT-CONTENTS

Aberdare, L.

Denham, L. [Teller.]

Inglewood, L.

Ailwyn, L.

Derwent, L.

Jellicoe, E. (L. Privy Seal.)

Allerton, L.

Drumalbyn, L.

Killearn, L.

Amherst of Hackney, L.

Dundee, E.

Lauderdale, E.

Amory, V.

Elliot of Harwood, Bs.

Lothian, M.

Auckland, L.

Emmet of Amberley, Bs.

Macleod of Borve, Bs.

Balerno, L.

Essex, E.

Massereene and Ferrard, V.

Balfour, E.

Ferrers, E.

Merrivale, L.

Beaumont of Whitley, L.

Ferrier, L.

Mersey, V.

Belstead, L.

Goschen, V. [Teller.]

Mowbray and Stourton, L.

Berkeley, Bs.

Gowrie, E.

Nugent of Guildford, L.

Brabazon of Tara, L.

Gray, L.

O'Neill of the Maine, L.

Brooke of Cumnor, L.

Grenfell, L.

Rankeillour, L.

Brooke of Ystradfellte, Bs.

Gridley, L.

Reay, L.

Brougham and Vaux, L.

Hailes, L.

Rhyl, L.

Buchan, E.

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

Ruthven of Freeland, Ly.

Burnham, L.

St. Aldwyn, E.

Cork and Orrery, E.

Harvey of Prestbury, L.

St. Just, L.

Craigmyle, L.

Harvey of Tasburgh, L.

Sandford, L.

Crathorne, L.

Hastings, L.

Savile, L.

Cullen of Ashbourne, L.

Hatherton, L.

Seear, Bs.

De L'Isle, V.

Hood, V.

Selsdon, L.

any kind of friction. It cannot be so, because unions are registered at the present time. We now set up standards of conduct with methods of assuring that they should be kept; but for so many years it has not been done for trade unions as it has been done in other parts of the nation's life. It is those unions which come up to these standards of conduct—and those unions alone—which should be able to profit by the procedures we are establishing under the Bill. I hope that noble Lords can at least understand the point of view, even though they do not agree with it, because it is the very essence of the Bill. The noble Lord, Lord Diamond, says he does not agree with a word of it. I am sorry to hear that, but it would be quite wrong in any way to stimulate opposition to the whole of this framework, because, without any doubt, if this framework is established and accepted it will undoubtedly improve the industrial relations of the country.
10.15 p.m.
On Question, Whether the said Amendment (No. 66B) shall be agreed to?
Their Lordships divided: Contents, 16; Not-Contents, 71.

Somers, L.

Tweedsmuir of Belhelvie, Bs.

Windlesham, L.

Templemore, L.

Vivian, L.

Wise, L.

Resolved in the negative, and Amendment disagreed to accordingly.
Clause 48 [Report of Commission on reference under s. 46]:
10.23 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 66C:
Page 38, line 7, at end insert—
("( ) to the Trades Union Congress;")
The noble Lord said: My Lords, I think it is pretty generally recognised that the T.U.C., through the application of what are known as the Bridlington principles embodied in the resolution of 1939, has attempted to bring about closer unity in the trade union movement and greater efficiency in negotiating arrangements, and to promote the smooth running of industry and commerce. What it has sought to do under its provisions, the T.U.C. continues to do: that is, to eliminate the upsets caused by the poaching of members by one union from another and thus to prevent the proliferation of unions in undertakings where one union has a majority of the workers and negotiates wages and conditions. In other words, it seems to me to recognise the value of the sole bargaining agent. Of course, it has no power to enforce it in every industry or every undertaking, but I am sure that it is pretty generally recognised that in a difficult field it has achieved considerable success.
Anyone who has had experience of trade unions, of their diversity, of their numbers, of the differences that inevitably exist between one trade union and another in certain fields, is bound to say that the Bridlington agreement was worth while and that its application by the T.U.C., so far as it lies in its power, has been excellent. As I understand it, this is the sort of thing the Government seek to do on a limited scale in the circumstances outlined in Clause 45. Whether the compulsory method envisaged here will be successful in bringing order to industrial relations in those industries which will be reviewed by the Commission has yet to be seen. We do not know how it will work out. Perhaps what is to be tried here will prove a useful adjunct to the operation of the Bridlington principles. In these circumstances it would at least be wise for the Government to adopt my Amendment and ensure that the Trades Union Con
944
gress is informed officially of what is taking place by instructing the Commission to furnish the Congress with copies of the recommendations it makes.
There is nothing Party about this Amendment; we are not seriously opposed to the Government in this connection, but we believe that wisdom would cause them, or ought to cause them, to adopt this minor Amendment, which is all it is, to ensure that the Commission is instructed to keep the Trades Union Congress informed about its recommendations. These recommendations will do something to further the Bridlington principles, which I think everyone recognises are in the interests of the country as a whole. The Government may well say, "Yes" to this simple Amendment. I was glad to note that they said, "Yes" to something similar moved previously by the noble Lord, Lord Drumalbyn. The same sort of considerations would apply here: that it is well to keep a body of this standing informed when the Commission is going to do something which might mean saying to one union, "You stand on one side because another union is going to undertake the sole responsibility for bargaining within this bargaining unit"—as it is to be called.
Surely, my Lords, in these circumstances the T.U.C. ought to be kept informed; because, despite the fact that there is a quarrel going on at this time between the Government and the Trades Union Congress, the Congress has said repeatedly that it regards part of its function to be to co-operate with whatever Government happens to be in power. Such co-operation has continued for many years, and it is right that it should. I am sorry that this is not quite the case in connection with this Bill, but I think it would be a step in the right direction for the Government to accept this simple Amendment. It might perhaps begin to heal the breach which undoubtedly exists.
10.30 p.m.
LORD DRUMALBYN: My Lords, we are here talking about a report prepared by the Commission in which it will make its recommendation about who should be the sole bargaining agent, or of what the joint negotiating panel should consist.

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Thereafter, it will be for one of the parties, if they so choose, to make an application within six months for a ballot for recognition of the sole bargaining agent. This is essentially a domestic matter. We are not talking about industries but about bargaining in plants or in plants of associated employers. While fully recognising that in the past the T.U.C. may be have been involved, we thought it right to restrict the parties to whom there is to be a statutory requirement for the Commission to transmit their report to the Secretary of State, who is involved in conciliation in the first place, to the employers and to every trade union or other organisation of workers appearing to the Commission to be directly concerned in the subject specified in the report.
The T.U.C. will not be involved in these proceedings. Moreover, there will be nothing that they could do, so far as I can see, if they did receive a copy of the report. The Commission will have made their recommendation and it will be for the Court to decide the issue. It is difficult to see why, in sending the report to those not immediately involved in the proceedings, an exception should be made in favour of the T.U.C. only. If this were done, others might have claims as well. It is not as if the T.U.C. will be kept in the dark in any way: the report will be published, and they will be able to get a copy. It is simply that we do not think it proper that the report should be sent, as a statutory requirement, to the T.U.C. Obviously one would like to hold out an olive branch where there was any kind of reason for doing so and where there was likely to be any kind of result. But this is a domestic matter, and we do not think that it would be really worth while to prescribe that the T.U.C. should receive a copy as of right. There is nothing more to it. We simply think it is right that if the C.I.R. has been dealing with the parties, it is to the parties that the report should be sent.
LORD CHAMPION: My Lords, the noble Lord's argument seemed to have a very legalistic tinge about it, but I am bound to agree with him that the parties directly concerned are obviously those who must receive the report which the Commission are sending to the Industrial Court. I thought that this was a matter of extending the olive branch, as the noble
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Lord puts it. That is never a bad thing to do, and I am now extending the olive branch to the noble Lord in suggesting that he should accept this Amendment and to some extent lessen the differences that exist between the two sides. But I see the force of what he said about the legal aspects of this and what is involved in subsection (2), and I do not feel that I would be justified in pressing this Amendment to a Division. In the circumstances, I beg leave to withdraw it.
Amendment, by leave, withdrawn.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 67:
Page 38, line 25, after (" and ") insert (" professional or other ").
The noble Lord said: My Lords, I can be quite brief in moving this Amendment. It discharges an undertaking which I gave to the noble Earl, Lord Halsbury, during Committee stage. The noble Earl then put forward a similar Amendment to this clause which I promised to consider sympathetically. That we have done, and in consequence we have put down this Amendment, framed in precisely the same terms as the Amendment framed at the Committee stage by the noble Lord, Lord Platt, who is also interested in this point. The noble Lord will see also that we propose by Amendment No. 73, to insert similar words in Clause 52.
I think this would be the right point, although the noble Lord, Lord Platt, is not here, for me to explain why we have not felt it necessary to table an Amendment defining "professional qualification". The noble Lord, Lord Platt, moved an Amendment defining this phrase during the Committee stage on behalf of the noble Earl, Lord Halsbury, and I promised then to consider whether, in the Government's view, such a definition was necessary. We have come to the conclusion that it is not, because it is not required to support the references in the Bill to "professional qualifications". In coming to our conclusion, we have also been influenced by the implications of any such definition. As the noble Lord, Lord Somers, and the noble Lord, Lord Wynne-Jones (both of whom were with us a moment or two ago), pointed out in Committee, professional chemists working in industry, and some teachers, at least, would not have been covered by the definition which the noble Earl, Lord

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Halsbury, put forward. However the phrase is defined, there will always be some profession that is not covered and that considers that it should be. I think we should be well advised to steer clear of stirring up that sort of difficulty, particularly since it is not necessary to do so.
Perhaps, in conclusion, I may say to noble Lords who have put forward Amendments on behalf of professionals, that I think they will accept that we have gone a considerable way towards meeting their anxieties, by virtue of both this Amendment and the new subsection (5) that we are proposing to insert in Clause 52. We have not been able to go all the way—one seldom can—but I hope that they may take this as an indication of our interest in their case and, indeed, as a tribute to their own persuasiveness. I beg to move.
LORD CHAMPION: My Lords, I feel that I ought to say on behalf of the noble Lord, Lord Platt, that I am sure he will be grateful for the explanation that has been given by the noble Lord, Lord Drumalbyn, even if he has not been able to meet the points made by the noble Lord, Lord Platt. The noble Lord, Lord Platt, has been a regular attender throughout the debates that we had on this subject, and during the long hours that we spent on it. I am sure, it is only some previous engagement that has prevented him from being here to-night. However, as I say, I am sure he will be grateful to the noble Lord for having explained why he cannot accept the point of view that was pressed on the Committee by Lord Platt. Apart from that, the only thing I would say is that I am sure this is a reasonable Amendment and that the House will be willing to accept it.
On Question, Amendment agreed to.
10.40 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 67A
Page 38, line 44, after (" would ") insert (" if recognised ").
The noble Lord said: This Amendment and the next are little more than drafting Amendments. It is, I think, vital to the success of this procedure that in their consideration of the extent of the
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support that an organisation will have, the Commission should, in addition to assessing the support that it enjoys at the time of the Commission's consideration, be enjoined to consider what would be the effect on the organisation or panel if it did secure recognition. The very fact of securing recognition as the sole bargaining agent may well affect the degree of support accorded to a particular organisation, and the prospect should, so far as is possible, be assessed by the Commission. This is a point made in the Donovan Report: that the very act of recognition causes people to flock to a particular trade union. That is why we feel that these words should be included here, which would ensure that the Commission, in assessing the support that an organisation receives, should also be asked to make some estimate of the support it might receive if it were recognised. These Amendments, to page 38, line 44, and to page 39, line 9, have the same purpose. Although, of course, I cannot move them together, I briefly discuss them together. My Lords, I beg to move Amendment No. 67A.
LORD DRUMALBYN: My Lords, I agree that one of the things the C.I.R. will be considering under this subsection is the likely support that a union would get if it were recognised. The noble Lord will recall that the C.I.R., in its first general report, made it clear that information about potential support, rather than actual organised strength, is what is needed for determining whether a union can reasonably develop and sustain adequate representation for collective bargaining purposes. This is the kind of point of view the C.I.R. will obviously adopt. The noble Lord, Lord Delacourt-Smith, and I think also the noble Lord, Lord Diamond, made similar points when we were discussing the code of industrial practice last week.
There certainly is nothing between us as to the objectives, and I assure noble Lords that the C.I.R. can and will consider—indeed, it must consider—at the time when it is considering its recommendations under this clause, the extent of likely support if the union were recognised. The C.I.R. has complete discretion as to how it makes up its mind whether a particular union or a joint negotiating panel would have the support of a substantial number of employees. It

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is not bound to conduct a ballot; nor is it prevented from doing so. It is left to itself how to assess the support the union would have. The Amendment would not take away this discretion, and so it is difficult to see that it adds anything in the sense of the subsection.
Nevertheless, I was at first inclined to think that the addition of the words proposed would in fact clarify this. But I am advised that it is not so, primarily because the word "recognised" is no-where used in the Bill on its own and the subsections in question would be better without it. In other words, I am advised that it would be better not to qualify the conditional "would" here. This is our view of the matter, and our views entirely coincide on the objectives. We believe that the C.I.R. will take exactly the same view. There is nothing between us of substance on this, but, because of the drafting difficulty, I should be grateful if the noble Lord would withdraw the Amendment.
LORD CHAMPION: My, Lords, with that very sensible explanation, which I accept, I am happy to ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD DRUMALBYN: My Lords, this is a consequential Amendment on the series of Amendments which I moved on Clause 44. I beg to move.
Amendment moved—
Page 39, line 31, at end insert—
("(8) Where the Commission determine, in making a report under this section, to recommend the recognition of an organisation of workers or joint negotiation panel as sole bargaining agent for a bargaining unit, and it appears to the Commission that there are in existence more extensive bargaining arrangements which will be applicable to the employees comprised or to be comprised in that bargaining unit, the recommendation—

(a) may specify the more extensive bargaining arrangements in question, and

(b) may be made subject to the reservation that the organisation or panel, at any time when it is recognised as sole bargaining agent in pursuance of the recommendation, shall not have exclusive negotiating rights in respect of matters which are at that time being dealt with under the specified arrangements or which are then the subject of a collective agreement negotiated under those arrangements.")—(Lord Drumalbyn.)

On Question, Amendment agreed to.
Clause 49 [Application to Industrial Court for ballot as to recognition of sole bargaining agent]:
LORD DRUMALBYN: My Lords, this is another Amendment consequential on Amendments to Clause 44. I beg to move.
Amendment moved—
Page 39, line 33, after (" recommended ") insert (" (with or without a reservation under subsection (8) of that section)").—(Lord Drumalbyn.)
On Question, Amendment agreed to.
10.45 p.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 69A:
Page 39, line 34, after (" workers ") insert (" other than an organisation entered on the special register ").
The noble Lord said: My Lords, I do not want to detain your Lordships a moment longer than necessary, and, frankly, I am going to ask the Government whether this same point has been discussed when I have been out of the Chamber. If it has, of course I will not pursue it any further; if it has not, may I say shortly what the point is? It has been mentioned on previous occasions and we should like the Government to bear it in mind. I do not put it more strongly than that.
The provision at the moment in Clause 49 refers to a particular organisation of workers acting on behalf of the members, or members of other unions, and the anxiety felt by those who have this responsibility is that unions which seek to represent a wide membership or group of workers want to feel that in any competition, or friendly rivalry, with other unions or other organisations of workers as to who should have the privilege of representing the wider group, they should be on level pegging. It is no more complicated than that. The words are inelegant but I think they express the position, and of course registration on the special register is much easier. It means having to go through far fewer doors and taking on far fewer responsibilities than under the registration proposed in the Bill as it stands. Simply in order to see that there would be fair play as between different unions, this Amendment is introduced. I beg to move.
THE PARLIAMENTARY UNDER-SECRETARY OF STATE, DEPARTMENT OF EDUCATION AND SCIENCE (LORD BELS FEAD): My Lords, the noble Lord, Lord Diamond, has explained to us clearly that he has apprehensions on this matter and that this is why the Amendment has been moved. I am grateful to him for moving it in his usual moderate manner, but I think I should tell him that we also have apprehensions on looking at the Amendment. Perhaps I may explain our apprehensions. To put it shortly, we on this side of the House believe that organisations on the special register—which it is perfectly true, as the noble Lord said, are not subject to quite the same gateways as the organisations which are going on to the general register—are, in one way or another, taking on some very similar obligations to those incurred by unions on the general register. We are concerned that they should have the same benefits and advantages which accrue to trade unions registering on the ordinary register. We feel that these organisations will want to have access to the machinery for settling any disputes which may arise about their recognition as a bargaining agent. It seems to us that it would be fundamentally wrong to deny them that right simply because, largely through an historical accident (which has been discussed in Committee), the special register organisations are of a type which cannot register as a trade union but will have to be entered on that special register. I cannot emphasise too strongly that there are no special rights and privileges attached to this registration over and above those attached to ordinary registration; and in the same way we do not think that there should be any special handicap, such as would be entailed if this Amendment were accepted.
The noble Lord, Lord Diamond, referred, very fairly, to the apprehensions which organisations on the ordinary register might have; that in rivalry for recognition there should be fairness and level pegging. If one of these organisations registered on the special register is recommended as sole bargaining agent but is not thought by those it claims to represent to be capable of doing a proper job on behalf of these people, then presumably it would not succeed in a ballot. The same, of course, would apply
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to the case of a trade union, and I should have thought that this was fair and reasonable. We feel that we should leave the C.I.R. the full freedom to decide which is the most appropriate bargaining agent and enable any union so recommended to apply for a ballot under this clause, leading ultimately to an enforceable order, subject only to the proviso that it must be registered on either the special or the general register.
I know that we are not seeing quite eye to eye on this matter. May I repeat the point I made, which I think is the important one? We are not talking about extra privileges or rights, or anything of that sort, for special register organisations over the ordinary register organisations. All we on this side of the House feel is that this Amendment, moved for perfectly reasonable and understandable motives, might none the less be a very real threat to the special register organisations which the House has taken the greatest of care to consider at the earlier stages of the Bill.
LORD DIAMOND: My Lords, I recognise that there is the difficulty on both sides here, where there is an artificial creation such as the special register, and where I think it is agreed between us that, avoiding difficult terms like "rights" and "privileges", there are more doorways to be gone through to the general register than the special register. In that situation there will inevitably be the kind of difficulty we have here. We are anxious to protect those who have entered through the greater number of doors. We do not want particularly to disbar those who are on the special register, although they have come in the easy way. Once an organisation is on the register, it is on the register. We should not dream of pressing this Amendment too far. I recognise what the noble Lord has said. We hope that the Commission will have regard to all the circumstances, and we hope that the Government, so far as they are able, will make clear to the Commission what the problems are and what our anxieties are. Having regard to the arguments the noble Lord has put forward, and particularly to the fact that he was able to say at the start of his speech that he was grateful to me for moving the Amendment in my

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usual moderate way, after my recent outburst, I think I ought to ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 50 [Order of Industrial Court for recognition of sole bargaining agent]:
10.53 p.m.
LORD DRUMALBYN: My Lords, Amendment No. 70 is again consequential on No. 63. I beg to move.
Amendment moved—
Page 40, line 42, at end insert—
("(1A) If the recommendation of the Commission is subject to a reservation under section 48(8) of this Act, the order of the Industrial Court shall specify the more extensive bargaining arrangements, as specified in that recommendation, and shall be made subject to the like reservation.")—(Lord Drumalbyn.)
On Question, Amendment agreed to.
LORD GARDINER LORD GARDINER had given Notice of Amendment No. 71:
Page 40, line 42, at end insert—
("( ) If it appears to the Industrial Court that there is a bona fide dispute as to whether the report by the Commission on the result of any such ballot is the true result of the ballot, such dispute shall be determined by the Industrial Court.")
The noble and learned Lord said: My Lords, we had an earlier Amendment in similar terms, and as I then said, the Government put down Amendment No. 94 covering the same point, with which, for the reasons I explained, we are not very happy. But as I said then, and I say again now, I think the sensible course for me to take would be not to move this Amendment but to discuss it when we come to Amendment No. 94.
Clause 51 [Application to Industrial Court with a view to withdrawal of recognition]:
LORD BELSTEAD LORD BELSTEAD moved Amendment No. 72:
Page 41, line 19, leave out (" an employer ") and insert (" one or more employers ").
The noble Lord said: My Lords, I beg to move Amendment No. 72, and I wonder whether it would be convenient to the House if we discussed at the same time Nos. 75 and 77. The purpose of these Amendments is to carry right through the recognition provisions the concept of associated employers. As your Lordships will be aware, it is pos
954
sible for a recognition order to be made in respect of a number of employers who are associated in the company law sense. Your Lordships will recall that a number of similar Amendments were tabled at Committee stage, and the reason why these particular Amendments were not tabled then was that we were expecting some more substantial redrafting of clauses 51 and 55 to deal with the point we discussed earlier about more extensive bargaining arrangements. In the event, I am putting it to your Lordships that we feel it is necessary only to make a small Amendment to Clause 55 on this account.
Amendments Nos. 72 and 75 are self-explanatory, but perhaps I might put just a few words to your Lordships about No. 77. The intention here is that the obligations incurred by a recognition order, where they relate to not carrying out collective bargaining in relation to the recommended bargaining unit (that is. Clause 55(1)(a)), should rest on two or more associated employers, both jointly and singly; but in relation to the obligation to negotiate seriously (subsection (1)(b)) the intention is that it should rest on the emloyers jointly. I hope that this explanation may be clear and found acceptable. The new subsection (3)(b) of Clause 55 is a consequential Amendment to take account of any more extensive bargaining arrangements which may have been specified in an order of the Court. I beg to move.
On Question, Amendment agreed to.
Clause 52 [Action in pursuance of application under s. 51]:
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 73:
Page 42, line 15, leave out subsections (3) to (7) and insert:
("(3) If, before that time expires, a settlement of the matters to which the application relates has been reached, the Commission shall report that fact to the Industrial Court, indicating the nature of the settlement.
(4) lf, when that time expires, no such settlement has been reached and the application has not been withdrawn, the Industrial Court, with a view to testing the grounds of the application by taking one or more ballots, shall request the Commission to consider whether—

(a) there should be one ballot, extending to all employees for the time being comprised in the bargaining unit to which the application relates, or

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(b) for the purpose of taking ballots that bargaining unit should be divided into two or more sections, and in the case of each section a separate ballot should be taken of all the employees for the time being comprised in that section.

(5) For the purpose of determining the question specified in subsection (4) of this section the Commission shall consider the extent to which different descriptions of employees comprised in the bargaining unit have interests in common, having regard in particular, in relation to each such description of employees, to—

(a) the nature of the work which they are employed to do, and

(b) their training, experience and professional or other qualifications.

(6) In relation to the ballot, or (if more than one) each of the ballots, to be taken as mentioned in subsection (4) of this section the Commission shall determine whether it is to be taken by the Commission or is to be taken under the supervision of the Commission by some other body, and in either case what arrangements would best secure that the ballot will be properly conducted and that the voting in the ballot will be kept secret; and the Commission shall thereupon arrange for one or more ballots to be taken in accordance with their conclusions under subsections (4) and (5) of this section and under this subsection.
(7) The question on which any ballot under this section is to be taken—

(a) where it extends to all employees for the time being comprised in the bargaining unit to which the application relates, shall be whether the organisation of workers or joint negotiating panel specified in the application should continue to be recognised as sole bargaining agent for that bargaining unit;

(b) where it is limited to a particular section of that bargaining unit, shall be whether that section should continue to be included in a bargaining unit for which that organisation of workers or joint negotiating panel is so recognised.

(8) After one or more ballots have been taken under this section in pursuance of an application under section 49 of this Act, the Commission shall report the results of the ballot or ballots to the Industrial Court, to the applicant, and to every employer, organisation of workers or joint negotiating panel specified in that application.")
The noble Lord said: My Lords, this is a formidable-looking Amendment, and I suggest that we might take with it Amendment 74,—which makes it look even more formidable. However, I think I can briefly summarise their purpose, which is to make further provision for the safeguarding of minority interests when ballots are taken on withdrawal of recognition. The Amendment makes it clear that when the C.I.R. has decided that the ballot shall be limited to par
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ticular sections of the bargaining unit, each and every section of the bargaining unit shall then be separately balloted. This is to ensure that the position of the bargaining agent will be left in no doubt in any part of the unit. It follows from this that the question on which the ballot is to be taken should not be, as it is in the Bill at the moment, whether the union should cease to be the bargaining agent for the bargaining unit, but, as we are proposing in this Amendment, whether it should continue to be a bargaining agent. These are simple thoughts to convey, and I hope that the wording of the Amendment, which your Lordships will no doubt have studied, conveys them clearly. I beg to move.
LORD CHAMPION: I am bound to admit that I thought these were formidable Amendments; there are a great many words involved in them. But when I came to consider them in relation to the clauses to which they refer it seemed to me that they made good sense. I have nothing to say against them. They are to some extent machinery, and to some extent they do something which clearly ought to be done in the circumstances put to the House by the noble Lord, Lord Drumalbyn. Having regard to all that, I shall certainly not advise my noble friends to oppose this Amendment and the subsequent one to which the noble Lord spoke.
On Question, Amendment agreed to.
Clause 53 [Order of Industrial Court on report under s. 52]:
10.59 p.m.
LORD DRUMALBYN: My Lords, I beg to move Amendment No. 74:
Amendment moved—
Page 43, line 6, leave out subsections (1) and (2) and insert—
("( ) Where a ballot under section 52 of this Act has been taken on the question specified in subsection (7)(a) of that section, and the result of the ballot, as reported by the Commission to the Industrial Court, is that a majority of the employees voting in the ballot voted against the continuance of the organisation of workers or joint negotiating panel as sole bargaining agent for the bargaining unit, the Industrial Court shall make an order directing the employer or employers—

(a) to cease to recognise the organisation of workers or joint negotiating panel as sole bargaining agent for the bargaining unit, and

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(b) not to accord such recognition to it at any time during the period of two years beginning with the date on which the result of the ballot was reported by the Commission to the Industrial Court..

( ) Where such a ballot, limited to a section of a bargaining unit, has been taken on the question specified in subsection (7)(b) of section 52 of this Act, and the result of the ballot as reported by the Commission to the Industrial Court, is that a majority of the employees voting in the ballot voted against that section continuing to be included in the bargaining unit for which the organisation of workers or joint negotiating panel is recognised as sole bargaining agent, the Industrial Court shall make an order directing the employer or employers—

(a) to cease to recognise the organisation of workers or joint negotiating panel as sole bargaining agent for that section of the bargaining unit, and

(b) not to accord such recognition to it at any time during the period of two years beginning with the date on which the result of the ballot was reported by the Commission to the Industrial Court.")—(Lord Drumalhyn.)

On Question, Amendment agreed to.
Clause 55 [Unfair industrial practices in connection with collective bargaining procedures]:
11.0 p.m.
LORD BELSTEAD: My Lords, I beg to move Amendment No. 75, to which I referred when dealing with Amendment No. 72.
Amendment moved—
Page 45, line 40, leave out (" next following subsection ") and insert (" following provisions of this section ").—(Lord Belstead.)
On Question, Amendment agreed to.
LORD GARDINER: My Lords, I beg to move Amendment No. 76. We have had this point several times before.
Amendment moved—
Page 46, line 23, at beginning insert (" knowingly ").—(Lord Gardiner.)
On Question, Amendment agreed to.
LORD BELSTEAD: My Lords, I beg to move Amendment No. 77. I discussed this with Amendment No. 72.
Amendment moved—
Page 46, line 26, at end insert—
("(3A) Subsections (1) to (3) of this section shall have effect in relation to an order made under section 50 of this Act in respect of two or more associated employers, but for that purpose shall have effect as if—

(a) any reference in those subsections to the employer were a reference to any of those employers;

(b) in subsections (1)(a) and (2) references to carrying on collective bargaining were references to carrying on such bargaining either alone or jointly with any other employer or employers comprised in the order;

(c) in subsection (1)(b) references to carrying on collective bargaining were references to carrying on such bargaining jointly with the other employer or employers comprised in the order.

(3B) In relation to an order which is made subject to a reservation under section 50(1A) of this Act, nothing in paragraph (a) or paragraph (b) of subsection (1) of this section shall be construed as applying to collective bargaining in respect of matters which, by virtue of that reservation, are expected from the exclusive negotiating rights of the sole bargaining agent.")—(Lord Belstead.)
On Question, Amendment agreed to.
LORD GARDINER: My Lords, I beg to move Amendment No. 77A. This is the same as Amendment No. 76.
Amendment moved—
Page 46, line 34, after (" section ") insert (" knowingly ").—(Lord Gardiner.)
On Question, Amendment agreed to.
LORD GARDINER: My Lords, I beg to move Amendment No. 78.
Amendment moved—
Page 47, line 9, after (" section ") insert (" knowingly ").—(Lord Gardiner.)
On Question, Amendment agreed to.
LORD GARDINER: My Lords, I beg to move Amendment No. 79.
Amendment moved—
Page 47, line 14, after (" so,") insert (" knowingly ")
On Question, Amendment agreed to.