HL Deb 06 July 1971 vol 321 cc803-79

2.52 p.m.


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 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 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.


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 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.


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 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.


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.


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 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?


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.


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 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 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.


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 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.


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 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 to hear the noble Lord saying something on this aspect of the matter.


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.


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.


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 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.


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 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.


In accordance with union rules.


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. 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.

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.
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.

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.


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 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—

  1. (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;
  2. (b) that the said provision is designed for the purpose of the control of such entry; and
  3. (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, 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.


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 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 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, 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.


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 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.


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 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.


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.


My Lords, before we leave this question, in my experience of drawing up agreements, it is usually done by many backroom boys—often I 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.


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?


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 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 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 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.


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 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.


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

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 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 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.


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—

  1. (a) which is made in writing after the commencement of this Act, and,
  2. (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 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 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.


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 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 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 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.


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 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.


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 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.


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 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.


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, the Bill almost goes out of its way to show how easily this provision can be avoided.

5.8 p.m.


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 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 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 very great length. I therefore suggest that we have now discussed it enough.


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.


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.

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 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.


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 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 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.


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.


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

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.
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 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 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 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 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.


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 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, 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.


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 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 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 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 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.


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 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.


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 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.


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.


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.


My Lords, I am much obliged to the noble Lord.

Clause 36 [Breach of collective agreement]:

6.12 p.m.

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 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.


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 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 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.


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 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 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 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.


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 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 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 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.


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 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 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, 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 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.


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.


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 his decision on the assumption that it will not be mitigated and we shall see how far that is justified.


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

Addison, V. Gardiner, L. Rusholme, L.
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Collison, L. White, Bs.
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Energlyn, L. Phillips, Bs. Wynne-Jones, L.
Aberdare, L. Crathorne, L. Hylton-Foster, Bs.
Ailwyn, L. Cullen of Ashbourne, L. Ironside, L.
Albemarle, E. Denham, L. Jellicoe, E. (L. Privy Seal.)
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Arran, E. Emmet of Amberley, Bs. McFadzean, L.
Atholl, D. Essex, E. Masham of Ilton, Bs.
Balerno, L. Falkland, V. Massereene and Ferrard, V.
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Birdwood, L. Grenfell, L. Napier and Ettrick, L. [Teller.]
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Buchan, E. Hailsham of Saint Marylebone, L. (L. Chancellor.) Nugent of Guildford, L.
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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.


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.