INDUSTRIAL RELATIONS BILL

HL Deb 06 July 1971 vol 321 cc901-59

8.11 p.m.

Report stage resumed.

LORD CHAMPION moved Amendment No. 60R: Page 28, line 34, leave out from (" contract ") to end of line 35 and insert (" a party shall be held to be guilty of an unfair industrial practice if it is proved that he has omitted to take all such steps ").

The noble Lord said: My Lords, this is an Amendment which I shall move very briefly. The matter at issue here is upon whom lies the burden of proof under subsection (2) of this clause. It seems to me that the burden of proof should clearly be placed on those who allege a breach of an agreement or of part of it. The Amendment which I am proposing would make it clear that the party alleging an unfair industrial practice would have to specify the steps that should have been taken, and to prove to the appropriate court that such steps would have been reasonable. I beg to move.

THE LORD CHANCELLOR

My Lords, this is something about which there need be little argument. The Amendment makes no difference at all. The disadvantage of it, as compared with the actual language of the Bill, is that it takes a negative rather than a positive view in point of language. The burden of proof remains on the complainant in both cases. I therefore suggest that the Amendment is not necessary and provides a less favourable form of words from the point of view of understanding the Statute than that which is in it. Another disadvantage is that the language chosen for the Amendment seems to be borrowed from criminal law and practice, and is therefore inapplicable to civil law and practice. It is a matter of drafting and we think our drafting is better.

LORD CHAMPION

My Lords having regard to that explanation I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.15 p.m.

LORD CHAMPION moved Amendment No. 60T: Page 28, line 35, after (" agreement ") insert (" contrary to an undertaking given by that party and contained in the collective agreement ").

The noble Lord said: My Lords, this Amendment stems from Amendment No. 61 standing in the name of the noble Lord, Lord Drumalbyn. My Lords, if Amendment No. 61 means what I think it means then this is a drafting Amendment; but if it means something different then this is an Amendment of substance. When I first read Amendment No. 61, deleting the words mentioned and putting the words "contrary to an undertaking—" in their proper place in subsection (2)(a), it seemed to me that the words to be inserted would be applicable only to subsection (2)(a); so that what this subsection would do, in effect, would be to say that where a collective agreement is a legally enforceable contract it would be an unfair industrial practice if a union did not take all reasonably practicable steps to prevent persons acting, or purporting to act on the union's behalf, contrary to an undertaking given by that union and forming part of the legally enforceable contract.

Then I re-read the subsection in this way, omitting the amended paragraph (a) it shall be an unfair industrial practice for any party to the agreement not to take all such steps as are reasonably practicable for the purposes—…. (b) where the party in question is an organisation, of preventing members of the organisation from taking any such action;

What I did then was to relate the word "action" in paragraph (b) back to the breach of the legally enforceable contract. I hope that is now clear. On looking at that subsection again, it seemed to me that the word "action" in paragraph (b) related back to the word "action" in paragraph (a).

If the second look at the subsection produces the correct interpretation, then paragraphs (a), (b), (c) and the new subsection to be inserted at the end of line 4 on page 29 will apply only in the circumstances where the party to the collective agreement, with his eyes wide open to the consequences, gave an undertaking that paragraphs (a), (b) and (c) would be carried out. If this latter is the case there is not much I wish to say against the principle embodied in subsection (2), but if the first interpretation is correct all the objections I have to what we dealt with on my Amendment as to an order of the Court being deemed a legally enforceable agreement remain as strong as ever.

This brings me back to my Amendment which I wish to see inserted after "agreement" in line 35. If the words of the noble Lord, Lord Drumalbyn's Amendment No. 61 are put there, it seems to me that the effect will be to remove any doubt about the extent of their application; but if the noble Lord and the House wish to make the words applicable only to subsection (2)(a) then consequential Amendments to paragraphs (b), (c) and new subsection will have to be made to relate the word "action" back to the word in paragraph (b). But that I gather is not what is intended. It is in an endeavour to discover exactly where these words which are to be eventually included under Amendment No. 61 will actually bite that I am moving this Amendment here. I think this makes a big difference, but perhaps the noble and learned Lord will tell me that that is not so. My Lords, I beg to move.

8.20 p.m.

THE LORD CHANCELLOR

My Lords, I am not wholly sure that I understood the noble Lord, Lord Champion, when he explained his Amendment. If I did not, I hope I may be forgiven. Two things are clear to me: first, that I can deal only with the effect of the Amendment as it is proposed; and, secondly, I will try to give a lucid explanation of Amendment No. 61 which, when it comes, will be intended to be read with Amendment No. 62, when I propose it. I do not think it would be right, or indeed in order, for me to anticipate what I would say then.

The effect of the present Amendment would be to limit the obligation which Clause 36(2) imposes on the parties to legally enforceable collective agreements reached after the commencement of the Act to use their best endeavours to prevent or end action by their agents, or members, of a kind which the agreement binds them not to take. The Amendment would mean that the obligation applied only in so far as it was expressly agreed in the agreement; the best endeavours clause would have to be expressly inserted into an agreement.

In our industrial relations there are a good many traditions and practices of which both sides are quite rightly proud. The Amendment we are discussing concerns one of them. In the normal course of collective bargaining, I suppose that almost every week a union, or an employer, or an employers' association, or a federation of unions, will be entering into a collective agreement, which it enters into quite voluntarily on behalf of its members. Obviously, in such an agreement both sides are free to state what the purpose and the content of the agreement should be. They are free to state how it should be phrased; they are free to state how best to provide that both sides shall abide by its terms. But when the agreement has been arrived at, I believe it to be customary—and if it were not customary I would think it reasonable—to expect that each party should honour the obligations it has thus accepted; and having honoured the obligations that it has accepted in this way, that it should, as part of that honourable obligation, use its influence to discourage action by its members, or officials, of a kind which it has decided not to join in or start.

If, as sometimes can happen, someone has wrongly claimed that a union has authorised its members to disregard obligations to which it has agreed, I think it is usual for the union to repudiate such a claim. Indeed, an honourable union would feel bound to do so. Its reaction, if it did so, would be natural. It would regard it, and rightly, as in the interests of the union's standing, and good relations with the other parties of the agreement, to repudiate the claim. Equally, I should have thought that it was as well for the union itself, in its own interests, to maintain its authority and discipline by seeking to honour the agreement which it has made.

I am sure that we would all acknowledge that preventing or ending action at variance with its obligations is something which unions, quite rightly and properly, have long regarded as being within their responsibility and, in general, I think we would accept that responsible unions, who are the very great majority, discharge this obligation very effectively. It is sometimes a difficult task. I imagine it is often a thankless task for the officials of a union to have to honour their obligations in this way, particularly when there are grievances of a serious and legitimate kind. This is precisely what tests responsible leadership. As drafted now, the Bill would uphold them in the task.

The Amendment would abolish that obligation in any contract—to use the best endeavours to see that the contract is observed—where it was not expressly put in. Our view is that that is not just a question of drafting, it is a question of swearing by the card; and that people have a right to expect bodies on both sides not to have to say, when they enter into an agreement, that they will do their best to observe it, and do their best to see that their members observe it.

The effect of the Amendment is that it would alter that standpoint and therefore, I think, undermine the prestige of voluntary agreements where they are entered into. When I come to my own Amendments, which are designed rather for a different purpose, I shall be happy to discuss what their effects will be, but, so far as I know, there is nothing in them to justify their transposition into the place where the noble Lord would put them. I would hope that with that explanation the noble Lord will not press this particular Amendment.

LORD CHAMPION

My Lords, I would agree completely with the noble and learned Lord that, if any party to an agreement says that he will use his best endeavours to see that that agreement is carried out, any party who enters into such an obligation ought to use his best endeavours to ensure that it is carried out. The only difficulty that arises here in the placing of these words in a different place from that proposed by Amendment No. 61, is that I wanted to be absolutely sure that, contrary to the undertaking given, it would apply over the whole field and not over the limited field of subsection (2)(a). As I understand it, the noble and learned Lord is telling me that the placing of my Amendment in this particular place, in this line, will not give effect to what I want to achieve. Is that what I understood the noble and learned Lord to be saying?

THE LORD CHANCELLOR

My Lords, I may be rather obtuse, but I am not wholly following this. As I understand it, the words in the position where Amendment No. 61 puts them are imported into paragraph (b) by the word "such" in the words "such action". If I have misunderstood anything—it is possible that I have, because this is a highly technical drafting matter—I ask to be forgiven. As I understand it, that is what my Amendment means. His Amendment would alter the sense of the words as I understand them to be.

LORD CHAMPION

My Lords, if it was a difficult point for the noble and learned Lord the Lord Chancellor to understand, it was an infinitely more difficult point for me to understand with my lack of legal knowledge. It seemed to me that the placing of my words would make a substantial difference to the clause. But I shall now leave it and withdraw the Amendment, and listen very carefully to what the noble and learned Lord says when he moves Amendment No. 61. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.30 p.m.

THE LORD CHANCELLOR moved Amendment No. 61: Page 28, line 38, leave out from (" action ") to (" that ") in line 39 and insert (" contrary to an undertaking given by that party and contained in the collective agreement or in ").

The noble and learned Lord said: My Lords, I think it would be convenient to take Amendments 61 and 62 together. In one sense, I could describe them as drafting Amendments because they really are designed to deal with the point of criticism which was put to us in Committee by the noble and learned Lord, Lord Wilberforce, and the noble Lord, Lord Tangley. If I may over-simplify the problem with which they were concerned I would describe it in these terms. Clause 36, among other things, is discussing the obligation of a union to see that its members observe its agreement and to see how far it is under such an obligation. Two difficulties stand in the way of the draftsman. The first is that the agreement is by the union and therefore the members are not parties to it at all. That is a substantial difficulty, although I think it is only one of drafting because most of us understand the difficulty and take account of it in our ordinary language.

The other thing is that if one accepts that the agreement is between the union and not between the members of the union and the employer, one also has to accept that the union cannot as a matter of fact exercise complete control over its members. They are individual people and they may act contrary either to the advice or the desire or the instructions of the union. The difficulty therefore resides in trying to translate into draftsmen's language what I think most of us would understand to be the case: that is, that the union cannot be asked to do more than to try its best to see that the agreement is kept, although, as the noble Lord, Lord Champion, frankly admitted, if a union undertakes that certain things will be done it is very much to its advantage and to its honour to see that they are done, at least by its members. Secondly, it is difficult to make it clear that the conduct which it must do its best to prevent is conduct which, if it were the conduct of the union which is a party to the agreement, would be a breach of the agreement. That is the joint purpose of the two Amendments which stand in the name of my noble friend.

The first Amendment deletes the words from (" action ") to (" that ") in line 39 and inserts the words (" contrary to an undertaking given by that party and contained in the collective agreement or in "). The second Amendment adds at the end of line 4 on page 29 a new subsection explaining that the action taken by a person other than the party who gave the undertaking in question (in this subsection referred to as the contracting party') shall be regarded as action taken contrary to the undertaking if either—

1. (a) it is action which, if taken by the contracting party, would have been a breach of the undertaking by the contracting party, or
2. (b) it consists in doing that which, in accordance with the undertaking, was not to be done, or in not doing that which, in accordance with the undertaking, was to be done."

A further effect of these Amendments—and here I come back to a question which I answered somewhat summarily when it was put to me by the noble Lord, Lord Champion, some time ago—will be to provide with more certainty a defence against liability for an unfair industrial practice in cases where a legally enforceable collective agreement has been broken, but a party to the agreement—for example, the union—can show that although its members had joined in the action complained of it had taken all reasonably practical steps to dissuade them. Again, where an unconstitutional leader claimed to have the authority to call a strike if the union concerned could show that it had taken whatever measures it could to repudiate the claim, to discourage its members from following the strike leader in question, it would provide an effective defence. After all, that is a recognised course of action for responsible unions to take and I feel that it is only right that the Bill should uphold them in following it while deterring anyone who feels tempted to do otherwise.

Basically, therefore, this is a drafting Amendment, but in improving the draftsmanship, which was its primary purpose, it provides an added safeguard for the union in the sense that I have just described. It does not go—and I hope I made it very clear to the noble Lord, Lord Champion, to the extent which I thought he was asking me; if I am wrong, again I apologise—as far as saying that a union is not bound to take reasonable steps to repudiate unauthorised action contrary to a Section 41 order. It does not go so far as saying that a union is not bound to take reasonable steps to use its best endeavours to see that a Section 41 order is kept. On the other hand, it does not ask the union to do the impossible in either case. It does not, I hope, ask the union to do more than is reasonable. It asks it to repudiate unauthorised action where taken falsely in the name of the union. It asks it to do its best to abide by its own undertaking, to see that its members abide by its own undertakings, and to abide by the obligations imposed upon it in the unlucky event—which I hope will be rare—that the court feels it necessary to impose them on the two parties under Section 41 arrangements. I hope I have made that plain. I beg to move.

LORD CHAMPION

My Lords, if there is any misunderstanding in my mind, the fault must be entirely mine, but I am still in a little difficulty about this. The question I really wish to ask is, will a party be relieved of any obligation to take all such steps as are reasonably practicable for the purposes set out in paragraphs (a), (b) and (c) if it does not give any undertaking such as that to which the noble Lord alluded, one that would be given when they entered into a legally enforceable contract, and which they would enter into with their eyes wide open? As I have said, if a party enters into an agreement or an undertaking to do certain things, if they do it with their eyes wide open, they should make sure that they use their best endeavours to see that that undertaking is carried out.

It seems to me, in reading this Amendment, that if a trade union refuses to give such an undertaking when the collective agreement is reached, it will be relieved of all the obligations set out to take reasonably practical steps to prevent persons acting and purporting to act and so on. I wonder if I am right on this point. If I am, it seems to me to have a bearing on the point that I was putting when discussing the obligation that will be placed on unions under Clause 41.

Before we part with this particular Amendment, I should very much like to hear whether it is the case that a union refusing to give such an undertaking would be relieved—as the Bill will read after the Amendment has been included in this clause—of any of the obligations under paragraphs (a), (b) and (c).

THE LORD CHANCELLOR

My Lords, I can only speak again with the leave of the House.

LORD CHAMPION

No, my Lords. The noble and learned Lord moved the Amendment.

THE LORD CHANCELLOR

Then I shall be replying, my Lords, and I suppose that I can add one more shot to my locker without leave. As I understand it, it is fairly clear that a union can make what agreement it likes with the employer, subject to Clause 41, which is irrelevant to this point. That will impose on the union an obligation to take such steps as may reasonably be practicable to secure the performance of that agreement. That, again, I think is reasonably clear. I think it would be possible for a clever draftsman to draft an agreement between a union and an employer, where each party made it clear that it would not be in the least responsible for whether or not the agreement was kept. Whether anybody but an ass would enter into such an agreement for himself, or accept such an agreement from anybody else, is a matter which I shall not discuss, but I think it would be theoretically possible for such an agreement to be arrived at.

LORD BERNSTEIN

My Lords, is being an ass an unfair industrial practice?

THE LORD CHANCELLOR

My Lords, being an ass is not an unfair industrial practice, but breaking your promise is, in certain circumstances.

LORD WILBERFORCE

My Lords, I regret that I was not here when the noble and learned Lord started his exposition, but I understand that he invited the House to consider Amendments Nos. 61 and 62 together, though he is moving only No. 61 at the moment. I wonder whether it is in order, or whether it suits the noble and learned Lord, that I should make some observations about No. 62. As I understand it, that Amendment represents an attempt to meet some of the difficulties felt jointly by my noble friend Lord Tangley and myself and expressed during the Committee stage. My noble friend Lord Tangley, who is not here to-day, has asked me to say that he is most grateful to the Minister and his advisers for the trouble they have taken in drafting the Amendment, which goes some considerable way to meeting his difficulties, and also mine. In particular, it deals with the obscurity in the clause as unamended, which relates to the enforcement of collective agreements against persons other than those who gave the undertaking. This new insertion will make it clear that, in certain circumstances, actions by persons other than those who gave the undertaking can be treated as an unfair industrial practice. So that position is made clear.

The other branch of the difficulties which we expressed relates to the remedy which might exist in cases where there were breaches or actions contrary to an undertaking committed by a person other than the party who gave it—in the ordinary way, the trade union—and that has not so far been dealt with. Of course it arises under Clause 129, and I am not quite sure whether the Government intend to accept our suggestions, to accept the Amendment proposed by the noble Lords, Lord Diamond and Lord Stow Hill, or to do nothing. But perhaps I can leave that until the point arises.

But on Amendment No. 62, I should like to ask whether the noble and learned Lord can explain to my dull wit what is the difference between paragraph (a) and paragraph (b), because paragraph (a) seems to contemplate a breach of the undertaking and paragraph (b) covers acts which, in accordance with the undertaking, were to have been done or acts which, in accordance with the undertaking, were not to be done. I should have thought that paragraph (b) was as good a definition as one could get of a "breach of an undertaking". A "breach of an undertaking" seems to include doing what you should not have done, or not doing what you should have done. But it may be that there is some more subtle thought involved in this which requires the insertion of both paragraphs. I should be most grateful if the noble and learned Lord could kindly explain the purpose of those two paragraphs. Apart from that, I am authorised by my noble friend Lord Tangley to say that he welcomes Amendment No. 62, and for my part I am very glad to do the same.

THE LORD CHANCELLOR

My Lords, if I may again have the leave of the House, and if I may gently chide my noble and learned friend, whom I regard as a lifelong friend, for his peculiar habits of debate, I should like to say that it would assist me greatly if he did not wait before putting his question until I have replied twice to the debate, but would take his part during the course of it. That would be both to the advantage of the House and a convenience to me. Secondly, I gently chide him for not taking advantage of my offer, which was meant sincerely, that he should discuss the more abstruse points of drafting with me personally, in order that I might have the advantage of Parliamentary counsel with me instead of at a remote degree away from me when I seek to reply—

LORD WILBERFORCE

My Lords, perhaps I may say that the Amendment was communicated to my noble friend Lord Tangley only on June 23, and it took a little time to reach me. With the speed at which my mind works, I am afraid that I did not have time to focus on it in time to consult with the noble and learned Lord. Otherwise, of course, I should have been very glad to do what he said.

THE LORD CHANCELLOR

My Lords, if a Double First and a Fellow of All Souls and a learned Law Lord cannot think more quickly than that, what is England coming to? All I would say is that I still gently chide my noble and learned friend. I have the advantage in this case of knowing both of the draftsmen of this Bill. One was a scholar with both of us at Oxford at the time when we were undergraduates, and the other was in my battalion during the war. But the fact of the matter is that the draftsman is a very careful man and I think he put it in ex abundanti cautela.

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, I beg to move Amendment No. 62.

Amendment moved—

Page 29, line 4, at end insert— ("( ) For the purposes of subsection (2) of this section action taken by a person other than the party who gave the undertaking in question (in this subsection referred to as "the contracting party") shall be regarded as action taken contrary to the undertaking if either—

1. (a) it is action which, if taken by the contracting party, would have been a breach of the undertaking by the contracting party, or
2. (b) it consists in doing that which, in accordance with the undertaking, was not to be done, or in not doing that which, in accordance with the undertaking, was to be done.").—(The Lord Chancellor.)

On Question, Amendment agreed to.

Clause 37 [Application to Industrial Court relating to procedural provisions]:

8.48 p.m.

LORD CHAMPION moved Amendment No. 62B: Page 29, line 17, after (" action ") insert (" likely to be seriously injurious to the industry concerned ").

The noble Lord said: My Lords, Clause 37 sets in motion the imposed procedure provisions. This is an elaborate procedure, which involves consultation by the Secretary of State with trade unions and appropriate employers; an application by him to the Industrial Court and then to the Commission; the formulation by the Commission of proposals for procedure arrangements; the publishing of proposals by the Commission for the purpose of inviting interested persons to apply to the Industrial Court, asking the Court to consider the proposals; the confirmation of the proposals by the Court; and eventually, after all that, the Court may impose a procedure order to be binding on the parties concerned.

My Lords, what I have so briefly described is a very elaborate procedure and clearly ought not to be lightly embarked upon. The words I am proposing in this Amendment are, I believe, words which will ensure that the procedure will not be started without very real justification. It will be seen that the words "seriously injurious" which I seek to import here are the words used in subsection (2) of Clause 141, which is the clause setting in motion the application to the Industrial Court for a ballot relat ing to an industrial action. It seems to me that if the words "seriously injurious" are to be considered by the Secretary of State in that connection, they ought to be considered in connection with this procedure application. So I am seeking to put in here words which will indicate the seriousness of the procedure which is started by Clause 37 and carried on by the subsequent clauses and which will start all that elaborate business of the application to the Industrial Court, to the Commission and so on. What I am seeking to do is to ensure that the Secretary of State shall start that procedure only in the cases where he feels that the action which is thought of or is being proposed is likely to be "seriously injurious to the industry concerned". My Lords, I beg to move.

THE EARL of BALFOUR

My Lords, may I ask one question here before we go very much further at this stage? The only trouble with this Amendment, so far as I can see, is that it might prevent the Secretary of State from stepping in to try to create a procedure agreement where there was considerable unrest or unhappiness in a particular industry. It this Amendment were accepted, I have the impression that the workers in that industry, who might not be organised in any proper union, might have to go on strike, without any support from a union or any organisation behind them, before the Secretary of State could step in. If my reading of Clause 37 is correct, the Secretary of State is able to step in and try to get some sort of a procedure agreement going when a whole mixture of unions may be involved. I am asking this very much as a question, but that is what I feel could be the difficulty.

THE MINISTER OF STATE. HOME OFFICE (LORD WINDLESHAM)

My Lords, I shall reply rather briefly. We discussed these clauses at considerable length in Committee. When we did so the noble Lord, Lord Champion, opened what he had to say on the first Amendment on May 18 by saying that the fundamental principles underlying these provisions were ones on which there was some agreement. He qualified that by saying that because of the way it was done he and the T.U.C. were not able to go all the way; but we did discuss them very thoroughly, and it might be helpful if I replied as briefly as possible. There are two points contained in the Amendment which the noble Lord has just moved. The first, and the one to which he has given emphasis, is that the action should be likely to be "seriously injurious". The second is the words "to the industry concerned", which he did not refer to, but which are in fact very relevant indeed. I will say a brief word or two on each of those two points.

On the seriousness of the action which has been taken, we must make no mistake, my Lords: Clause 37(1)(a) and (b) and Clause 37(5)(a) and (b) are very carefully defined criteria indeed. These criteria are defined in the Bill and must be fulfilled before the Court will make an order. The Secretary of State or one of the parties can make an application, but before the Court makes an order for mandatory reference to the C.I.R. these criteria must be fulfilled. If we look at them, we see in subsection (1) that the first condition is: the absence of a procedure agreement, or the unsuitability of such procedure agreement as may exist for the purpose of settling disputes or grievances promptly and fairly ". So there must be an absence of a procedure agreement or an unsuitable one. The second condition is: where a procedure agreement is in existence, recourse to industrial action (whether consisting of lock-outs, strikes or irregular industrial action short of a strike) contrary to the terms or intentions of that agreement ". Then, in subsection (5) we see that the development or maintenance of orderly industrial relations in the unit must have been seriously impeded, and that there must have been substantial and repeated losses of working time in that unit. This spells out in some detail what the noble Lord has asked for, and that is that the action must be "seriously injurious".

The second point, which I shall not labour because he has not made a great deal of it, is that we could not accept the Amendment on the basis of the words "to the industry concerned". This clause and this series of clauses do not refer to industry-wide agreements: they refer to agreements in units of employment, in plants or in particular parts of plants. The idea is to try to get a procedure agreement which is specific ally fitted to the unit of employment in which there has been this serious trouble. In reply to my noble friend Lord Balfour, I thought that perhaps his question was directed a little more to Amendment No. 62M, which the noble Lord did not move, rather than to Amendment No. 62B, which is the one to which he spoke.

LORD CHAMPION

My Lords, the only thing I would say, and particularly to the noble Earl, Lord Balfour, is that paragraphs (a) and (b) are of course alternatives. The words "one or both" precede them. As to the words "to the industry concerned", I now see the point which the noble Lord makes in that connection. What I was relating that phrase to was the case where an agreement is in existence. Where there is an agreement in existence, I was thinking in terms of an agreement which would affect the industry which I had in mind in my Amendment. But, my Lords, having regard to the fact that the noble Lord has made it quite clear that this procedure would be started only where there was likely to be something very serious resulting if we did not have reasonable procedural arrangements covering the unit concerned (I would use the word "unit" now, following the noble Lord's stress upon it) I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.59 p.m.

LORD CHAMPION moved Amendment No. 62C: Page 29, line 23, leave out (" trade unions ") and insert (" organisation of workers ").

The noble Lord said: My Lords, this is something to which we have made frequent reference throughout the whole of this Bill—the distinction which is drawn between a trade union and an organisation of workers. The exclusion of an organisation of workers from the provisions of subsections (2), (3) and (4) of this clause seems to me to be an extraordinary one. There may very well be serious difficulties existing in a unit of employment which are caused by an inadequate procedure agreement, but that unit of employment may be one in which the employer recognises an organisation of workers; that is, an unregistered trade union. In such a case, the Secretary of State would not consult the organisation of workers despite the fact that the employer recognises that organisation for negotiation purposes. That organisation would not be a party under subsection (4), and would not receive the advice and assistance of the Secretary of State.

What I understand the Government to be trying to do throughout this Bill is to bring improved industrial relations into being. We do not agree that they will do that but we recognise that they are trying seriously to achieve better industrial relations. Part of the attempt to do that is to bring about circumstances in which there shall be existing in all units mentioned in this clause procedure arrangements which will lead to the sort of understanding that ought to exist in any unit of employment. But what the clause does in this rather silly business of trying to force organisations of workers to register and therefore to fall absolutely and entirely within the clause, is to exclude them from the advice and assistance which the Secretary of State may give and from starting the procedure.

I think that there is purpose in this Amendment. I am not trying merely to "have another go" about "organisation of workers" and "trade union". Rather I am trying to ensure that where the procedure would be improved by the use of the words "organisation of workers" in addition to "trade unions", those words are added. I say that it improves the clause and that it will ensure that the things I have said are necessary are carried out. I beg to move.

9.0 p.m.

LORD WINDLESHAM

My Lords, I appreciate the way in which the noble Lord has moved his Amendment. Like him, I do not think this is the time to go back over the long debates we had on registration. I do not think this clause will have the effect that he fears and I think I can reassure him on part of what he had to say, if not on all. The registered trade union would be able to initiate this process. It could be initiated by the employer or a trade union and therefore, by definition, a registered trade union. If the union has not registered or has taken action to have itself taken off the register, that is not to say it will not be consulted by the Secretary of State or by the conciliation staff of the Department of Employment. If the noble Lord looks at Clause 37(4) he will see in paragraph (a): the Secretary of State shall offer such advice and assistance to the party giving the notice, and to such other parties as appear to him to be directly concerned, as he may consider appropriate with a view to promoting agreement…". If a union has taken action to have itself taken off the register, the Secretary of State can say that here is a party which is not a trade union but which is affected by the dispute and which must be consulted. This is also the case if we turn to Clause 38(1) which is the subject of a later Amendment. The consultation at that stage would be with any party which the Commission believes is likely to be affected. Therefore the process of consultation would not be affected in the way that he says, although he is right about the point of initiating the process.

LORD CHAMPION

My Lords, that puts my doubts at rest to some extent; but subsection (2) of Clause 37 says: The parties to whom this section applies in relation to a unit of employment, other than the Secretary of State, are the employer and— then it goes on to the trade unions and then in paragraph (b) it says: where a procedure agreement is in existence which applies to that unit… When we get to subsection (4) it says: The Industrial Court shall not entertain an application made under this section by a party other than the Secretary of State… Then in (4)(a): the Secretary of State shall offer such advice and assistance to the party giving the notice… This creates a difficulty in my mind; but I do not wish to pursue the matter unless the noble Lord feels that there is an answer he might give me on this point before I ask leave to withdraw the Amendment.

LORD WINDLESHAM

With leave, I merely reassure the noble Lord that what I said is correct.

LORD CHAMPION

My Lords, as the noble Lord is so absolutely sure that what he said is absolutely correct, I have no course open but to ask leave to withdraw the Amendment and to tell him that between now and the Third Reading I shall read what he has said so correctly in case he is not quite as correct as he feels he is.

Amendment, by leave, withdrawn.

LORD WINDLESHAM moved Amendment No. 62K: Page 30, line 32, after (" Commission ") insert (" after consultation with the employer and with any trade union appearing to the Commission to be likely to be affected ").

The noble Lord said: My Lords, I beg to move Amendment No. 62K standing in the name of my noble friend, Lord Drumalbyn, and with it perhaps I may speak to Amendment No. 62L to Clause 43 which is consequential. The Amendment to Clause 38, No. 62K, has been put down to meet a point made in Committee in support of a very similar Amendment moved by the noble Lord, Lord Champion. The noble Lord argued that this clause—which was originally Clause 36 and is now Clause 38—might lead to employers and the trade unions concerned not being consulted by the Commission on Industrial Relations about any proposal for extension of the unit of employment. On that occasion my noble friend, Lord Ferrers, said there was no objection in principle to accepting the Amendment which had been moved from the Benches opposite, but that there might be some slightly different drafting to ensure that it achieved its intended purpose. Accordingly, we have taken advice from the draftsmen and this Amendment is the result. While it is very similar lo the one we discussed previously it defines more precisely the extent of agreement, thus ensuring that it shall not be interpreted more narrowly than the noble Lord, Lord Champion, said was his intention when the original Amendment was moved in Committee on May 18. Similarly, the Amendment to Clause 43 ensures that where the reference is related to a composite unit the requirement to consult shall apply to each employer in that unit.

LORD CHAMPION

My Lords, I am grateful to the Government for having put down this Amendment. I think it was put down after my Amendment No. 62D but perhaps that is not so. Amendment No. 62D was put down in order that I might ask the Government to ensure they carried out their undertaking given on Committee stage by the noble Earl, Lord Ferrers. I am grateful to the noble Earl for looking into the matter and to the noble Lord, Lord Windlesham, for moving this Amendment which I am sure the House will be happy to accept.

LORD WINDLESHAM

My Lords, I ought to say—in case there is any misunderstanding in the light of our previous discussion—that the wording of our Amendment that the Commission would consult with the employer and with any trade union appearing to the Commission to be likely to be affected relates of course to a registered trade union; that is inherent in the wording of the Amendment.

LORD CHAMPION

My Lords, if I may speak again, I would say that that is the only flaw I see in the Amendment.

On Question, Amendment agreed to.

9.10 p.m.

Clause 41 [Extension of Sections 35 to 40 to composite unit]:

LORD CHAMPION moved Amendment No. 62J: Page 33, line 2, leave out from beginning to end of line 6.

The noble Lord said: My Lords, this is an Amendment which was put down and intended to be consequent on the Amendment to Clause 36. The noble and learned Lord, the Lord Chancellor, dealt fairly fully with this when speaking to the Amendment that I moved to Clause 36. I then said, I think, that I would have to study very carefully what he said and consider it before Third Reading because this is an important step to take—by order of the Industrial Relations Court to impose on a trade union something equivalent to that trade union having entered into a contract which might be legally enforceable. I do not know whether the noble Lord has anything to say in addition to what the Lord Chancellor said. It seems to me that there is no case for me to rehearse the arguments used then, but I should like to know whether the noble Lord has given any consideration to these words and whether he can tell us anything more about them than did the noble and learned Lord the Lord Chancellor, when replying to the previous Amendment.

LORD WINDLESHAM

My Lords, I agree that what my noble and learned friend on the Woolsack said is relevant to this Amendment. It is an Amendment of considerable substance and importance. The noble Lord, Lord Champion, has correctly identified the few lines in Clause 41 which are the final conclusion to the whole process described in this set of clauses. The noble Lord may remember that when we debated the subject in Committee I drew the analogy that this special procedure, designed to meet special situations, is similar to a long road with a number of exists which the parties may take at various stages by agreement. It is a road that very few will travel to the end; but we believe that for those determined to do so there must be some clear-cut conclusion. These words in Clause 41(2) represent the final conclusion when all else has failed.

I need only add to that general description one or two short points. We must remember that the order, which is to take effect as though it were a legally enforceable contract, will not be made by the Court unless one of the parties applies for it. The Secretary of State cannot make an application for an order under Clause 41, whatever he thinks about the matter. The C.I.R. cannot make an application, even though they have considered and drawn up the proposals and however strongly they may feel about it. The N.I.R.C. itself cannot take the initiative here. It must be an application within six months by one of the parties. There is this vital period of up to six months for the parties to come together. Then an order can be applied for by the trade union or by the

CONTENTS
Beswick, L.	Hoy, L.	Seear, Bs.
Buckinghamshire, E.	Hughes, L.	Shepherd, L.
Champion, L.	Janner, L.	Slater, L.
Davies of Leek, L.	Llewelyn-Davies of Hastoe, Bs.	Stonham, L.
Diamond, L.	Maelor, L.	Stow Hill, L.
Gardiner, L.	Milner of Leeds, L. [Teller.]	Taylor of Mansfield, L.
Garnsworthy, L. [Teller.]	Phillips, Bs.	Wade, L.
George-Brown, L.	Reay, L.	White, Bs.
Greenwood of Rossendale, L.	Rusholme, L.
Hey-cock, L.	St. Davids, V.

NOT-CONTENTS
Aberdare, L.	Balfour, E.	Brooke of Cumnor, L.
Ailwyn, L.	Barnby, L.	Brooke of Ystradfellte, Bs.
Allerton, L.	Belhaven and Stenton, L.	Buchan, E.
Amherst of Hackney, L.	Belstead, L.	Burnham, L.
Amory, V.	Berkeley, Bs.	Caldecote, V.
Balerno, L.	Brabazon of Tara, L.	Cork and Orrery, E.

employer. I do not suppose that it will be only one of the parties who will use this procedure. It may be the employer or it may be the trade union. It is open to either of them, whichever is interested in improving the procedure agreement, to make an application at the end of this long road. I do not think that there is anything further I need to add to what has been said already on this clause.

LORD CHAMPION

My Lords, I did not go to any length in moving this Amendment because I spent some time on it when discussing Clause 36. I am bound to say that although the noble Lord has given an explanation which may sound reasonable, the words I propose to leave out are not reasonable. They are words which impose on a trade union an obligation into which they have never entered. It tells them that they must behave in relation to an order of the Court in exactly the same way as if they had themselves entered into a collective agreement covering those matters. Following the preceding words in Clause 41, these words are of such a nature that we are bound to vote against them. We object to them strongly. We have no other course to follow but to divide against them and once again register our protest against something which is wholly objectionable to anybody who has ever had anything at all to do with trade unions.

9.18 p.m.

On Question, Whether the said Amendment (No. 62J) shall be agreed to?

Their Lordships divided: Contents, 28; Not-Contents, 73.

Craigavon, V.	Hailes, L.	Nugent of Guildford, L.
Craigmyle, L.	Hailsham of St. Marylebone, L. (L. Chancellor.)	Oakshott, L.
Crathorne, L.		O'Neill of the Maine, L.
Cullen of Ashbourne, L.	Harvey of Prestbury, L.	Rankeillour, L.
De L'Isle, V.	Harvey of Tasburgh, L.	Rhyl, L.
Denham, L. [Teller.]	Hastings, L.	Ruthven of Freeland, Ly.
Derwent, L.	Hatherton, L.	St. Aldwyn, E.
Drumalbyn, L.	Hood, V.	St. Just, L.
Dundee, E.	Hylton-Foster, Bs.	Sandford, L.
Elliot of Harwood, Bs.	Inglewood, L.	Savile, L.
Emmet of Amberley, Bs.	Jellicoe, E. (L. Privy Seal.)	Selkirk, E.
Essex, E.	Killearn, L.	Selsdon, L.
Falkland, V.	Lauderdale, E.	Somers, L.
Ferrers, E.	Macleod of Borve, Bs.	Strathclyde, L.
Ferrier, L.	Massereene and Ferrard, V.	Tweedsmuir of Belhelvie, Bs.
Goschen, V.	Merrivale, L.	Vivian, L.
Gowrie, E.	Mersey, V.	Windlesham, L.
Gray, L.	Mowbray and Stourton, [Teller.]	Wise, L.
Grenfell, L.
Gridley, L.

Resolved in the negative, and Amendment disagreed to accordingly.

Clause 43 [Extension of ss. 37 to 42 to composite unit]:

9.25 p.m.

LORD WINDLESHAM

My Lords, I beg to move Amendment No. 62L in the name of my noble friend Lord Drumalbyn. This is consequential on Amendment No. 62K.

Amendment moved— Page 34, line 8, leave out (" section 37(2)") and insert (" sections 37(2) and 38(1)").—(Lord Windlesham.)

On Question, Amendment agreed to.

Clause 44 [Definitions relating to bargaining structure]:

9.26 p.m.

LORD DRUMALBYN moved Amendment No. 63: Page 34, line 22, leave out from (" employers ") to end of line 24 and insert (" in relation to whom collective bargaining, in respect of such matters as are not dealt with under more extensive bargaining arrangements, is, or could appropriately be, carried on by an organisation of workers or a joint negotiating panel, or partly by an organisation of workers and partly by a joint negotiating panel ").

The noble Lord said: My Lords, it may be for the convenience of your Lordships to take Amendments Nos. 63, 64, 65, 66, 68, 69 and 70 together. The purpose of these Amendments is to deal with a point which has been raised with us by a number of employers' associations. It is this. Your Lordships will be aware that since we are here dealing essentially with plant as distinct from industry-wide bargaining, the bargaining agency provisions of the Bill are limited to single employers or employers who are associated in a financial sense. At the same time, over wide areas of industry it is exceptional for all the terms and conditions of a group of employees comprised in a bargaining unit to be negotiated by the agent for that unit; for example, in a typical engineering firm the basic wage rates of the workers (as was pointed out in the Donovan Report, paragraph 36), together with a number of the other terms and conditions of their employment will be negotiated nationally between the Engineering Employers' Federation and the Confederation of Shipbuilding and Engineering Unions. But these nationally agreed terms and conditions are almost invariably supplemented at company level by further agreements which, for example, provide for payments at a rate above the basic rate. Clearly, the bargaining agency provisions must be sufficiently flexible to deal with a situation where there may be bargaining at different levels in respect of a particular group of employees. We had thought that the Bill achieved this result because, as your Lordships will see, the C.I.R. has power, under Clause 48(7), to make its recommendations subject to any conditions it thinks fit, but now we are advised that this does not cover the point.

The Amendments basically do two things. First of all, Amendments Nos. 63 and 64 make some necessary modifications to the definitions of "bargaining unit" and "sole bargaining agent" in Clause 44; and Amendment No. 66 provides a new, and I think self-explanatory, definition of the phrase "more extensive bargaining arrangements". These Amendments to the existing definitions are necessary to make it clear that the bargaining of a "bargaining unit" relates in the case of a particular group of employees to those terms and conditions of their employment which are not the subject of negotiation under more extensive bargaining arrangements; and second, that the sole bargaining agent has no negotiating rights in respect of matters which are dealt with under the more extensive bargaining arrangements.

The second object of the group of Amendments is to enable the C.I.R. to do what we thought it already had the power to do under Clause 48(7). That is, Amendment No. 68 would, if your Lordships agree, insert a new subsection into Clause 48 empowering the C.I.R. to make its recommendation subject to a reservation that the recommended bargaining agent shall not have exclusive negotiating rights in respect of matters which are dealt with under more extensive bargaining arrangements.

I should perhaps explain that where the C.I.R. finds that there are more extensive bargaining arrangements in existence it will not be in every case that its recommendation in favour of the sole bargaining agent would be subject to a reservation in these terms. This new subsection will give the C.I.R. discretion to decide whether or not the more extensive bargaining arrangements should be accorded priority over the negotiating rights of the recommended agent. This seems to us to be important. As your Lordships will know, the Donovan Report recommended an extension of company-wide bargaining and it would not be sensible if we required the C.I.R. to accord supremacy to national bargaining arrangements in every case where they existed. Nevertheless, I must make it clear that the C.I.R. would be unlikely to do anything to disturb national arrangements which were working satisfactorily with the agreement of all concerned.

Finally, there are two small consequential Amendments necessary because of this change. First, it is necessary to make reference in Clause 49 to the possibility of a reservation by the C.I.R. under the new subsection to be inserted into Clause 48. Secondly, the new subsection (1)(a) to be inserted into Clause 50 by virtue of Amendment No. 70 will require the Industrial Court, when it makes a recognition order enforcing a C.I.R. recommendation which is subject to a reservation under the new subsection (8) of Clause 48, to specify in the order the more extensive bargaining arrangements. We think this is sensible so that everyone will know where he stands.

I hope that with this explanation your Lordships will agree that these Amendments are necessary. In view of the scale of these Amendments, I would stress that they are not the result of the Government's suddenly waking up to the fact that there can be overlapping bargaining. We knew this all along, but we thought that the Bill as originally drafted adequately catered for it. We are now advised that this is not so and these Amendments are designed to express our intention in a manner which cannot give rise to doubt, and I think a manner which will be acceptable to noble Lords opposite. I beg to move.

LORD CHAMPION

My Lords, I am grateful to the noble Lord, Lord Drumalbyn, for his careful explanation of these Amendments. I am bound to say that if we are going to have this procedure—and in some ways I agree with this procedure of establishing sole bargaining agents—I am certain that the Amendments do bring something to Clause 44 which was formerly missing. I cannot pretend that I had discovered it was missing until I read these Amendments on the Marshalled List. Then I realised that I ought myself to have put down these Amendments on Committee stage. But as I failed to do so, all I can do at this stage is to welcome the Amendments which have been drafted and suggest that the House should certainly do nothing to prevent their becoming part of this Bill.

On Question, Amendment agreed to.

9.33 p.m.

LORD DRUMALBYN

My Lords, Amendment No. 64 is consequential. I beg to move.

Amendment moved— Page 34, line 35, at end insert (" except in respect of matters which are dealt with under more extensive bargaining arrangements ").—(Lord Drumalbyn.)

On Question, Amendment agreed to.

LORD DRUMALBYN

My Lords, I beg to move Amendment No. 65.

Amendment moved— Page 34, line 41, leave out (" and ").—(Lord Drumalbyn.)

On Question, Amendment agreed to.

LORD DRUMALBYN

My Lords, I beg to move Amendment No. 66.

Amendment moved— Page 34, line 44, at end insert (" and (f) "more extensive bargaining arrangements", in relation to any particular employees or descriptions of employees of an employer, or of two or more associated employers, means arrangements for collective bargaining in respect of matters common to those employees or descriptions of employees and to other employees or descriptions of employees, whether of the same employer or employers or of one or more different employers ").—(Lord Drumalbyn.)

On Question, Amendment agreed to.

Clause 45 [Application to Industrial Court for reference as to recognition of sole bargaining agent]:

9.35 p.m.

LORD CHAMPION moved Amendment No. 66A. Page 35, line I, leave out from (" to ") to second (" the ") in line 2.

The noble Lord said: My Lords, this is the last almost despairing attempt to bring some sense into these clauses which relate to the recognition of a sole bargaining agent in respect of a bargaining unit. What the Amendment seeks to do is to provide that an application made under this clause by one of the persons or bodies named in subsection (2) of the clause shall be made directly to the Commission instead of to the Industrial Court. There are some 23 references to the Industrial Court in the four clauses beginning with this one and ending with Clause 49. It seems to me that in none of these clauses is the Industrial Court required to take any positive action which could not as well be done by the Commission. In most of the 23 references, the Court is to act as a post office, merely passing on something to the Commission, or filtering matter that has to go to the Commission. When acting as a filter it has to do something which could be done much better by the Commission itself. Not until we get to Clause 50, in which the Court may be asked to make an order, do we find the Court having to do anything really positive on its own account.

Clause 50 provides that in the event of the employees in a bargaining unit voting by a majority in favour of the recommendation of the Commission, then the Court shall make an order having the legal effect of making either a trade union or a joint negotiating panel the sole bargaining agent. At that stage the Court has to take an action proper for a high-powered court, for the nature of the order to be made is to command obedience and, if not obeyed, to render those who do not obey liable to certain sanctions. Until that stage of the procedure outlined in Clauses 45 to 50 is reached, there seems to be not the slightest justification for bringing the Industrial Court into this procedure at all. The Industrial Court will have enough to do under many other clauses of this Bill without acting as a postman or filtering agent. To relieve it of this trifling work would appear to me to be well worthwhile.

Clearly, if this Amendment is accepted, a lot of consequential Amendments would have to be made but I can safely leave those to the Parliamentary draftsman if, by any chance, the noble Lord, Lord Drumalbyn, accepts my Amendment. I think this would introduce into these clauses a worthwhile set of proposals, causing the Commission—a body that really will know something about the whole business of sole bargaining agents—to do the work without the unnecessary references to the Industrial Court. This is not moved in a spirit of obstruction or time-wasting, but is an indication of a genuine desire on my part to bring some sense into these clauses—which are, I admit, very important clauses. I beg to move.

9.40 p.m.

LORD DRUMALBYN

My Lords, the noble Lord, Lord Champion, as usual has moved his Amendment, which is undoubtedly an important and really fundamental one, in an extremely conciliatory way. I fully recognise, and I am sure all on this side of the House do, that the Opposition are not yet reconciled to the idea of having an Industrial Court. But, my Lords, I think what we must consider is the rôle of the Industrial Court as regards the provisions for recognition of a sole bargaining agent; whether there should be an Industrial Court and, if there is, whether it should be involved at all. Those are the questions which the Amendment implies.

There is of course a genuine point of difference between us. It is a difference which I hope will tend to disappear with time. I am aware that in the recognition provisions of the Bill put forward by the noble Lord's Party when they were in power it was provided that applications for recognition could be made direct to the C.I.R., but there is a very genuine and important point of difference between the approaches in this matter, and it is this difference which is the first justification for having the Industrial Court in the process.

The difference is this. In the previous Administration's Bill only the Secretary of State could refer recognition disputes to the C.I.R. In the Bill which is now before your Lordships, the Secretary of State can still initiate a procedure which ends in a reference to the C.I.R., but the parties themselves, the employers and the unions, can also make application to the Court for a reference. It is an important element in our general philosophy in this matter that the parties themselves should be able to do this. If applications can be made not only by the Secretary of State but also by the parties themselves, there obviously has to be some way of sifting the applications to make sure that they are valid and that voluntary means of settling the dispute have been used and have failed. It would be time-consuming, at any rate for the C.I.R. to have to do this job itself, and the C.I.R. is going to be a very busy body (without the hyphen!).

I pointed out when we discussed this matter in Committee that it would be far better for the C.I.R. to concentrate its industrial expertise on investigations entrusted to it than to spend its time determining the validity of applications. That, after all, is essentially a judicial task. The sifting of criteria is strictly limited and factual in nature and entirely appropriate for a judicial body to consider. Since those criteria are set out in the Bill, in Clause 46, I need not describe them now. I need only say that one of the most important criteria on which the Court will have to consider an application is whether the parties have attempted to settle the matter themselves. This is consistent with our general philosophy of emphasising that recourse to the machinery of the Bill must take place only after voluntary methods have failed. I should have thought that this would commend itself to noble Lords opposite.

The second and most important reason why I think the Industrial Court must be in at the very start of the recognition process—and this clause deals with that—is that in the last resort there is the possibility of a statutory order compelling an employer to comply with the C.I.R.'s recommendations. I thought even the noble Lord, Lord Champion, could see some point in this. He referred to the fact that when we get to Clause 60, I think, the Court alone can decide the issue. Given that there is this possibility, however remote—and we all hope that it will occur very rarely—it seems to us right that the judicial body, the National Industrial Relations Court, should take applications in the first instance for references to the C.I.R. It seems to us equally right that the judicial body should make the order rather than the Secretary of State, as was the case in the previous Administration's Bill. We debated this matter in Committee and there was a similar debate in another place, but I felt that your Lordships would expect me at any rate to summarise our attitude and the way in which and the reason why it differs from that of the Opposition. I hope that noble Lords will accept the validity of our reasons even if they cannot agree with the framework which the Bill establishes.

I should like to mention two other things. The first is the character of the Commission. We expect the Commission to be the adviser and friend, and not in any way the boss. We think it is better to have a court which will give the decisions, however unpopular they may be in some quarters, rather than the C.I.R. should do this. Another point is that we would surely need a court of some kind because if these matters were left to the Commission—that is to say, unless we were going to allow the Secretary of State to settle the matter, and I think we all recognise that there are objections to that—there would have to be some form of appeal anyway, and that could only be to a court if it were not to the Secretary of State. Therefore, I suggest there is a real reason for having the Court in these circumstances.

I hope that noble Lords will become reconciled to this system. I know they still feel difficulty in accepting it, but it has been very carefully thought out and I would say very strongly to noble Lords opposite that it is largely with the object of preserving the Commission in the form in which I think both sides would feel it should be that we are proposing this kind of machinery.

LORD CHAMPION

My Lords, let me say straight away that the Amendment I moved had no source in any opposition that might be felt on this side to the idea of the Industrial Court. It never entered my head that this was part of any such opposition. I must admit that if my noble friends feel that, I have no deep-rooted opposition myself to an industrial court doing certain things. In this connection my thought was that we ought not to have the Industrial Court doing a lot of time-consuming work that could very well be done by the Commission. The noble Lord said, "We did not want the Commission to be doing time-consuming work in determining the validity of an application." I would not want the Industrial Court, which the noble Lord has told us is going to be a very, very busy court, determining the validity of an application. "Time-consuming work" by the Industrial Court was a point I made in moving the Amendment. I agree that when it comes to making an order which should have all the enforceability possible behind it, at that stage the order should be made by the Industrial Court; and Clause 50 provides for that. It was no intention of mine that the Court should be taken out of the procedure at that stage.

My Lords, I feel that the noble Lord has been very reasonable in his explanation here, as indeed he was during the Committee stage. I have returned to the point because I still feel that something ought to be done in the way of a last-ditch attempt to get the Government to see sense about this; but having regard to the careful and courteous explanation which the noble Lord has given us, I beg leave to withdraw the Amendment.

Amendment by leave, withdrawn.

9.50 p.m.

LORD CHAMPION moved Amendment No. 66B.

Page 35, line 23, at end insert— ("( ) one or more organisations of workers, or ")

The noble Lord said: My Lords, this clause commences the procedure for a decision on whether a sole bargaining agent should be recognised by the employer or employers in a given set of circumstances. Under the provisions of Clause 48, the Commission, having thoroughly examined a reference to it, prepares a report setting out its recommendations. That clause makes it quite clear that the Commission may recommend that an organisation of workers—that is, an unregistered trade union—could be the sole bargaining agent for the unit in question. Clause 48 says also that the Commission shall transmit a copy of its report to, among others, an organisation of workers if it appears to the Commission to be directly concerned in the questions specified in the reference. Yet, despite all that, we have the stupid situation created by Clause 45 in which a trade union, or the employer or employers, or the employer or employers jointly with one or more trade unions, or the Secretary of State, can make an application to commence the proceedings which may end in an unregistered trade union being recommended as the sole bargaining agent; but it is not empowered itself to make an application to set all this procedure in motion.

The purpose behind this procedure—and, as I understand it, the whole Bill—is to try to improve industrial relations in this country. The clause we are considering is an attempt to bring about a greater degree of orderly negotiations in given bargaining units. It may well have that effect, but we ought to try to get the procedure off on the right foot by dropping this nonsense of the exclusion of the unregistered trade union from this clause of the Bill.

I think this is sensible and I hope the Government will accept it. The references I have made to clauses in subsequent Amendments make it quite clear that the organisation of workers must be recognised by the Commission and others in some circumstances. Surely it is justifiable that the organisation of workers should be recognised at the very outset, and the acceptance of my Amendment would enable that to be done. I beg to move.

LORD BELSTEAD

My Lords, we have debated this matter more than once in this Committee and it has been examined thoroughly in another place. On the main point—whether unregistered organisations should be able to take advantage of the recognition provision—I hope that the Committee will not think me discourteous when I say that noble Lords know well that it is a fundamental principle of the Bill, as it stands, that the substantial new rights which it proposes for trade unions should apply only to those which by registering accept statutory minimum standards in relation to their rules and the rights of their members. I realise that there is disagreement on this but I am simply relating what the Bill says. The right to make an application to the Industrial Court under this clause is one such right and that is why I am going to invite your Lordships to resist the Amendment.

The noble Lord, Lord Champion, drew attention to the apparent inconsistency that although the Bill forbids an unregistered organisation from making an application under this clause, it is nevertheless possible for the claim for recognition of an unregistered organisation to be examined by the C.I.R. through an application by the employer or the Secretary of State; and for the C.I.R. to recommend that an unregistered organisation, provided that it is independent under Clause 48(4)(a), should be a sole bargaining agent.

But I would suggest to the House that there is no inconsistency here. In the section of the Bill dealing with recognition there are basically two substantial new rights; first of all, the right to make an application to the Court for a reference to the C.I.R. for the examination of a recognition issue (Clause 45(2)); and, secondly, the right to apply to the Court for a ballot on the C.I.R.s recommendation after a reference (Clause 49(1)). In both these cases unregistered organisations may not, I admit, avail themselves of these rights. This is a principle fundamental to the Bill—noble Lords opposite will not agree, but I think they will understand. On this side we have thought that it would be quite wrong to forbid the C.I.R. from recommending an unregistered organisation either as a sole bargaining agent or as a party on a joint negotiating panel, if that was the most appropriate thing for the C.I.R. to do. Of course it might well be that an employer would voluntarily accept the recommendation. Therefore question (b) in Clause 45, subsection (1), is framed in terms of organisations of workers, that is, unregistered.

However, when it comes to applying for an order enforcing the C.I.R.s recommendations no application can be entertained in respect of an organisation which is not registered. If an unregistered organisation which is recommended as sole bargaining agent by the Commission wants to take advantage of the substantial new right, then, as I think noble Lords are familiar, it has to get itself registered before making an application to the Industrial Court, and Clause 49(1) provides that application for a ballot must be made within six months of the C.I.R.s report, so in fact it has six months to do this.

If noble Lords opposite would accept for a moment that it is a Government principle in this matter that the substantial new rights under the Bill should be available only to registered trade unions, then perhaps we may meet, on the ground that we have taken this as our logical position and that we could have gone to extremes by insisting that the C.I.R. might not even recommend an unregistered organisation as a sole bargaining agent. But we have not done this. What we have done is perfectly fair to unregistered organisations. In Committee my noble friend Lord Drumalbyn pointed out that it really is a privilege to apply to the court to have an order made in your favour which is going to be binding on the employer, and this basically is the reason why I must ask your Lordships to resist the Amendment proposed by the noble Lord, Lord Champion.

LORD CHAMPION

My Lords, there is, and continues to be, a great divide between the Government and the Opposition in this matter. The noble Lord referred to rights in the Bill in one part of his speech; in another part he referred to the privileges which will be conferred by registration. We cannot accept that there are any privileges conferred under this Bill by registration. We do not think that that is the case. We do not think that this proposal to exclude the organisation of workers from being able to make an applicaton to the Court, despite the fact that they may be the body recognised by the employer in such a bargaining unit, is right. It seems an extraordinary thing that they shall not be able to go to the Court to try to get themselves declared as a sole bargaining agent in this connection because they do not think they ought to accept registration. The noble Lords on the Government side, and the noble Lord who has just spoken, are I am sure desirous of ensuring that reasonable negotiating procedures shall exist in industry. To some extent that is what these clauses are all about. It is not reasonable to say that negotiating procedure ought not to be reasonably established if it so happens that the party who might make the application for its initiation were the Government to permit it is the organisation of workers and not the trade union. In so many cases the organisation of workers would be the very people who ought to be able to start this procedure going, as well as the Secretary of State, the trade union and others that are mentioned in this particular clause.

I think the Government are making a mistake here. I realise that having discussed it a few times they are not now going to change their mind about it. We, for our part, are not going to change our minds in thinking that this is a wholly unjustifiable move by the Government and may in fact impose difficulties in this whole procedure of trying to secure in some industries, where the union concerned is an unregistered union, the institution of this procedure that might bring about that a body—the organisation of workers, for example—is the sole bargaining agent. The noble Lord told us that an unregistered organisation can, or may, very well be recommended by the Commission eventually as the sole bargaining agent. That being so, it surely is extraordinary that they cannot start the procedure that might bring this about. That a bargaining unit might be deprived of the procedure which is envisaged n these clauses purely because it is an unregi stered union seems to be something which ought not to persist. I know that the noble Lord cannot reply to any point I have made. I have only spoken in reply on this Amendment because I feel that this is a matter upon which we must register our final protest by going into the Division Lobbies in favour of our Amendment.

LORD DIAMOND

My Lords, I should like to say a word or two in support of what my noble friend said. Although I did not hear everything my noble friend said in moving this Amendment because one has many responsibilities in connection with a Bill of this length and complexity—and it is always very unwise to assume that one knows even what such a close friend as my noble friend Lord Champion would have said—nevertheless I want to say a word or two in view of the language used by the noble Lord in replying to my noble friend. I want to make it as clear as I can to the Government that the continuation of their attitude is going to embitter relations between the Government and the unions beyond repair.

LORD BELSTEAD

My Lords, with the leave of the House, may I ask the noble Lord a question?

LORD DIAMOND

My Lords, if the noble Lord wishes to do that now or respond to me afterwards, I and my noble friends will give him every possible leave of the House, so that he can reply to the comments of a serious nature that I have to make.

LORD BELSTEAD

My Lords, may I simply ask the noble Lord a question? The terms of this Amendment relate to unregistered organisations of workers, and the noble Lord is saying, in round terms, that the resistance from this side of the House will embitter relations between the Government and the trade unions. Doubtless the noble Lord will go on to establish his case, but I should like to ask, in terms of a question, exactly where the noble Lord's remarks are leading? It does not seem to me that what the noble Lord is saying ties up with the terms of the Amendment.

LORD DIAMOND

My Lords, the noble Lord did not give me much opportunity. When the noble Lord asked a question, I gave way. If the noble Lord is saying that I should use the term "trade union" in the narrow sense in which he is using the term in this Bill when it becomes law, then of course I am not. I am talking about the situation as it is to-day; and everybody knows that when one refers to the trade unions and the trade union movement one means something like 10 million citizens of this country who are organised under trade unions and whose livelihood and standards are protected by those unions.

BARONESS EMMET OF AMBERLEY

Is the noble Lord, Lord Diamond, not in danger of making a Second Reading speech on an Amendment?

LORD DIAMOND

My Lords, I am in danger of not making any speech at all if I have as many interruptions as this before I have had an opportunity of explaining why the words to which I am going to refer, used by a Minister in replying to the Amendment, are wholly damaging to the cause of industrial relations. If I am unable to do that, then of course we cannot make any progress at all. I shall do this as reasonably and as responsibly as I can, bearing in mind that I have had some 10 years' experience, as a Chairman in the other place, of rules of order, although of course I cannot speak with anything like that authority as to your Lordships' House.

I wish to make it quite clear that when the noble Lord talks about the rights of the workers he is using, unwittingly, a most irritating phrase. All I see in his description is the removal of the total rights which trade unionists have enjoyed for a century and the return of a small portion of those rights which the noble Lord now regards as giving rights to workers. That is the way in which I look at it, and that is how the trade union movement regards it. For him to take away the majority of those rights and to restore a few conditionally under very heavy and onerous conditions, and then to call that giving rights, adds insult to the injury of which we complain.

I hope we have made it absolutely clear why we feel as we do. I have responsibility for saying that because the Government presumably want to improve industrial relations, which is essential for the Government's economic policy and for their continued viability. Therefore, this goes right to the root of that matter. The Government's refusal to accept this Amendment, and their refusal to consider what is really behind this proposal impels us to make the position as clear as we possibly can. I would not be speaking like this if I did not think that the situation was getting worse and has reached a very sorry state indeed.

The proposal is a very moderate one. It is to allow a body of persons to be chosen by their constituents—if you like, chosen by the workers—and approved by an organisation especially set up to make an independent approval; namely, the Commission. All this Amendment proposes is that when the workers make this choice of their own free will and the proposal is approved by an independent body like a Commission, then the workers should have their way. That is all we are asking for, and the Government are making that impossible unless several additional and onerous conditions which we shall come to at our next stage of the debate are complied with.

I hope I have made clear why we resist the attitude of the Government. We push these Amendments as often as we can, and we resent bitterly that insult should be added in the form of liberties which are to be removed being called rights which are given to us.

LORD DRUMALBYN

My Lords, I do not think one can allow the noble Lord to get away with that. He must surely recognise by this time that we are setting up procedures which, in the last resort, will allow some degree of compulsion. These are new rights and they are designed to take the place of the unilateral exercise of means which disrupt the lives of many people. It is in order to exercise these rights that we think it right to require that unions on whom they are conferred should register; and it is for that reason that within a period of six months from the time when the C.I.R. may say that an organisation of workers would be the appropriate bargainng unit for a plant—this is not a case where it is already the bargaining unit, but only where it would be the appropriate bargaining unit—a union can, if it wishes, become registered. The Court will be in a position to give the direction referred to in Clause 50 that, from the end of the period of two months beginning with the date on which the order is made, and so long as the order continues to be in force, that union or joint negotiating panel shall be recognised as sole bargaining agent for that bargaining unit. That is a right, and of course the institution of the agency shop is another new right. There again, a union must be registered in order to claim that right.

LORD DIAMOND

My Lords, may I attempt to reconcile our totally different views? Why does the noble Lord keep calling this a new right? It has certainly not been on the Statute Book before, but in practice it is not a new right. It is something that goes on all the time; the Government are proposing to attach conditions to an existing practice. The noble Lord cannot call that a new right.

LORD DRUMALBYN

My Lords, all these rights are new rights, given the statutory right of the individual to choose to belong or not to belong, which is the very basis of the Bill. We do not think that this is in any way unreasonable and I hope that noble Lords will not do anything to suggest that we are engendering

CONTENTS
Blyton, L.	Hughes, L.	St. Davids, V.
Champion, L.	Janner, L.	Shackleton, L.
Diamond, L.	Kennet, L.	Shepherd, L.
Gardiner, L.	Llewelyn-Davies of Hastoe. Bs. [Teller.]	Walston, L.
Garnsworthy, L.		Wynne-Jones, L.
Hoy, L.	Milner of Leeds, L. [Teller.]

NOT-CONTENTS
Aberdare, L.	Denham, L. [Teller.]	Inglewood, L.
Ailwyn, L.	Derwent, L.	Jellicoe, E. (L. Privy Seal.)
Allerton, L.	Drumalbyn, L.	Killearn, L.
Amherst of Hackney, L.	Dundee, E.	Lauderdale, E.
Amory, V.	Elliot of Harwood, Bs.	Lothian, M.
Auckland, L.	Emmet of Amberley, Bs.	Macleod of Borve, Bs.
Balerno, L.	Essex, E.	Massereene and Ferrard, V.
Balfour, E.	Ferrers, E.	Merrivale, L.
Beaumont of Whitley, L.	Ferrier, L.	Mersey, V.
Belstead, L.	Goschen, V. [Teller.]	Mowbray and Stourton, L.
Berkeley, Bs.	Gowrie, E.	Nugent of Guildford, L.
Brabazon of Tara, L.	Gray, L.	O'Neill of the Maine, L.
Brooke of Cumnor, L.	Grenfell, L.	Rankeillour, L.
Brooke of Ystradfellte, Bs.	Gridley, L.	Reay, L.
Brougham and Vaux, L.	Hailes, L.	Rhyl, L.
Buchan, E.	Hailsham of Saint Marylebone L. (L. Chancellor.)	Ruthven of Freeland, Ly.
Burnham, L.		St. Aldwyn, E.
Cork and Orrery, E.	Harvey of Prestbury, L.	St. Just, L.
Craigmyle, L.	Harvey of Tasburgh, L.	Sandford, L.
Crathorne, L.	Hastings, L.	Savile, L.
Cullen of Ashbourne, L.	Hatherton, L.	Seear, Bs.
De L'Isle, V.	Hood, V.	Selsdon, L.

any kind of friction. It cannot be so, because unions are registered at the present time. We now set up standards of conduct with methods of assuring that they should be kept; but for so many years it has not been done for trade unions as it has been done in other parts of the nation's life. It is those unions which come up to these standards of conduct—and those unions alone—which should be able to profit by the procedures we are establishing under the Bill. I hope that noble Lords can at least understand the point of view, even though they do not agree with it, because it is the very essence of the Bill. The noble Lord, Lord Diamond, says he does not agree with a word of it. I am sorry to hear that, but it would be quite wrong in any way to stimulate opposition to the whole of this framework, because, without any doubt, if this framework is established and accepted it will undoubtedly improve the industrial relations of the country.

10.15 p.m.

On Question, Whether the said Amendment (No. 66B) shall be agreed to?

Their Lordships divided: Contents, 16; Not-Contents, 71.

Somers, L.	Tweedsmuir of Belhelvie, Bs.	Windlesham, L.
Templemore, L.	Vivian, L.	Wise, L.

Resolved in the negative, and Amendment disagreed to accordingly.

Clause 48 [Report of Commission on reference under s. 46]:

10.23 p.m.

LORD CHAMPION moved Amendment No. 66C:

Page 38, line 7, at end insert— ("( ) to the Trades Union Congress;")

The noble Lord said: My Lords, I think it is pretty generally recognised that the T.U.C., through the application of what are known as the Bridlington principles embodied in the resolution of 1939, has attempted to bring about closer unity in the trade union movement and greater efficiency in negotiating arrangements, and to promote the smooth running of industry and commerce. What it has sought to do under its provisions, the T.U.C. continues to do: that is, to eliminate the upsets caused by the poaching of members by one union from another and thus to prevent the proliferation of unions in undertakings where one union has a majority of the workers and negotiates wages and conditions. In other words, it seems to me to recognise the value of the sole bargaining agent. Of course, it has no power to enforce it in every industry or every undertaking, but I am sure that it is pretty generally recognised that in a difficult field it has achieved considerable success.

Anyone who has had experience of trade unions, of their diversity, of their numbers, of the differences that inevitably exist between one trade union and another in certain fields, is bound to say that the Bridlington agreement was worth while and that its application by the T.U.C., so far as it lies in its power, has been excellent. As I understand it, this is the sort of thing the Government seek to do on a limited scale in the circumstances outlined in Clause 45. Whether the compulsory method envisaged here will be successful in bringing order to industrial relations in those industries which will be reviewed by the Commission has yet to be seen. We do not know how it will work out. Perhaps what is to be tried here will prove a useful adjunct to the operation of the Bridlington principles. In these circumstances it would at least be wise for the Government to adopt my Amendment and ensure that the Trades Union Con gress is informed officially of what is taking place by instructing the Commission to furnish the Congress with copies of the recommendations it makes.

There is nothing Party about this Amendment; we are not seriously opposed to the Government in this connection, but we believe that wisdom would cause them, or ought to cause them, to adopt this minor Amendment, which is all it is, to ensure that the Commission is instructed to keep the Trades Union Congress informed about its recommendations. These recommendations will do something to further the Bridlington principles, which I think everyone recognises are in the interests of the country as a whole. The Government may well say, "Yes" to this simple Amendment. I was glad to note that they said, "Yes" to something similar moved previously by the noble Lord, Lord Drumalbyn. The same sort of considerations would apply here: that it is well to keep a body of this standing informed when the Commission is going to do something which might mean saying to one union, "You stand on one side because another union is going to undertake the sole responsibility for bargaining within this bargaining unit"—as it is to be called.

Surely, my Lords, in these circumstances the T.U.C. ought to be kept informed; because, despite the fact that there is a quarrel going on at this time between the Government and the Trades Union Congress, the Congress has said repeatedly that it regards part of its function to be to co-operate with whatever Government happens to be in power. Such co-operation has continued for many years, and it is right that it should. I am sorry that this is not quite the case in connection with this Bill, but I think it would be a step in the right direction for the Government to accept this simple Amendment. It might perhaps begin to heal the breach which undoubtedly exists.

10.30 p.m.

LORD DRUMALBYN

My Lords, we are here talking about a report prepared by the Commission in which it will make its recommendation about who should be the sole bargaining agent, or of what the joint negotiating panel should consist. Thereafter, it will be for one of the parties, if they so choose, to make an application within six months for a ballot for recognition of the sole bargaining agent. This is essentially a domestic matter. We are not talking about industries but about bargaining in plants or in plants of associated employers. While fully recognising that in the past the T.U.C. may be have been involved, we thought it right to restrict the parties to whom there is to be a statutory requirement for the Commission to transmit their report to the Secretary of State, who is involved in conciliation in the first place, to the employers and to every trade union or other organisation of workers appearing to the Commission to be directly concerned in the subject specified in the report.

The T.U.C. will not be involved in these proceedings. Moreover, there will be nothing that they could do, so far as I can see, if they did receive a copy of the report. The Commission will have made their recommendation and it will be for the Court to decide the issue. It is difficult to see why, in sending the report to those not immediately involved in the proceedings, an exception should be made in favour of the T.U.C. only. If this were done, others might have claims as well. It is not as if the T.U.C. will be kept in the dark in any way: the report will be published, and they will be able to get a copy. It is simply that we do not think it proper that the report should be sent, as a statutory requirement, to the T.U.C. Obviously one would like to hold out an olive branch where there was any kind of reason for doing so and where there was likely to be any kind of result. But this is a domestic matter, and we do not think that it would be really worth while to prescribe that the T.U.C. should receive a copy as of right. There is nothing more to it. We simply think it is right that if the C.I.R. has been dealing with the parties, it is to the parties that the report should be sent.

LORD CHAMPION

My Lords, the noble Lord's argument seemed to have a very legalistic tinge about it, but I am bound to agree with him that the parties directly concerned are obviously those who must receive the report which the Commission are sending to the Industrial Court. I thought that this was a matter of extending the olive branch, as the noble Lord puts it. That is never a bad thing to do, and I am now extending the olive branch to the noble Lord in suggesting that he should accept this Amendment and to some extent lessen the differences that exist between the two sides. But I see the force of what he said about the legal aspects of this and what is involved in subsection (2), and I do not feel that I would be justified in pressing this Amendment to a Division. In the circumstances, I beg leave to withdraw it.

Amendment, by leave, withdrawn.

LORD DRUMALBYN moved Amendment No. 67: Page 38, line 25, after (" and ") insert (" professional or other ").

The noble Lord said: My Lords, I can be quite brief in moving this Amendment. It discharges an undertaking which I gave to the noble Earl, Lord Halsbury, during Committee stage. The noble Earl then put forward a similar Amendment to this clause which I promised to consider sympathetically. That we have done, and in consequence we have put down this Amendment, framed in precisely the same terms as the Amendment framed at the Committee stage by the noble Lord, Lord Platt, who is also interested in this point. The noble Lord will see also that we propose by Amendment No. 73, to insert similar words in Clause 52.

I think this would be the right point, although the noble Lord, Lord Platt, is not here, for me to explain why we have not felt it necessary to table an Amendment defining "professional qualification". The noble Lord, Lord Platt, moved an Amendment defining this phrase during the Committee stage on behalf of the noble Earl, Lord Halsbury, and I promised then to consider whether, in the Government's view, such a definition was necessary. We have come to the conclusion that it is not, because it is not required to support the references in the Bill to "professional qualifications". In coming to our conclusion, we have also been influenced by the implications of any such definition. As the noble Lord, Lord Somers, and the noble Lord, Lord Wynne-Jones (both of whom were with us a moment or two ago), pointed out in Committee, professional chemists working in industry, and some teachers, at least, would not have been covered by the definition which the noble Earl, Lord Halsbury, put forward. However the phrase is defined, there will always be some profession that is not covered and that considers that it should be. I think we should be well advised to steer clear of stirring up that sort of difficulty, particularly since it is not necessary to do so.

Perhaps, in conclusion, I may say to noble Lords who have put forward Amendments on behalf of professionals, that I think they will accept that we have gone a considerable way towards meeting their anxieties, by virtue of both this Amendment and the new subsection (5) that we are proposing to insert in Clause 52. We have not been able to go all the way—one seldom can—but I hope that they may take this as an indication of our interest in their case and, indeed, as a tribute to their own persuasiveness. I beg to move.

LORD CHAMPION

My Lords, I feel that I ought to say on behalf of the noble Lord, Lord Platt, that I am sure he will be grateful for the explanation that has been given by the noble Lord, Lord Drumalbyn, even if he has not been able to meet the points made by the noble Lord, Lord Platt. The noble Lord, Lord Platt, has been a regular attender throughout the debates that we had on this subject, and during the long hours that we spent on it. I am sure, it is only some previous engagement that has prevented him from being here to-night. However, as I say, I am sure he will be grateful to the noble Lord for having explained why he cannot accept the point of view that was pressed on the Committee by Lord Platt. Apart from that, the only thing I would say is that I am sure this is a reasonable Amendment and that the House will be willing to accept it.

On Question, Amendment agreed to.

10.40 p.m.

LORD CHAMPION moved Amendment No. 67A Page 38, line 44, after (" would ") insert (" if recognised ").

The noble Lord said: This Amendment and the next are little more than drafting Amendments. It is, I think, vital to the success of this procedure that in their consideration of the extent of the support that an organisation will have, the Commission should, in addition to assessing the support that it enjoys at the time of the Commission's consideration, be enjoined to consider what would be the effect on the organisation or panel if it did secure recognition. The very fact of securing recognition as the sole bargaining agent may well affect the degree of support accorded to a particular organisation, and the prospect should, so far as is possible, be assessed by the Commission. This is a point made in the Donovan Report: that the very act of recognition causes people to flock to a particular trade union. That is why we feel that these words should be included here, which would ensure that the Commission, in assessing the support that an organisation receives, should also be asked to make some estimate of the support it might receive if it were recognised. These Amendments, to page 38, line 44, and to page 39, line 9, have the same purpose. Although, of course, I cannot move them together, I briefly discuss them together. My Lords, I beg to move Amendment No. 67A.

LORD DRUMALBYN

My Lords, I agree that one of the things the C.I.R. will be considering under this subsection is the likely support that a union would get if it were recognised. The noble Lord will recall that the C.I.R., in its first general report, made it clear that information about potential support, rather than actual organised strength, is what is needed for determining whether a union can reasonably develop and sustain adequate representation for collective bargaining purposes. This is the kind of point of view the C.I.R. will obviously adopt. The noble Lord, Lord Delacourt-Smith, and I think also the noble Lord, Lord Diamond, made similar points when we were discussing the code of industrial practice last week.

There certainly is nothing between us as to the objectives, and I assure noble Lords that the C.I.R. can and will consider—indeed, it must consider—at the time when it is considering its recommendations under this clause, the extent of likely support if the union were recognised. The C.I.R. has complete discretion as to how it makes up its mind whether a particular union or a joint negotiating panel would have the support of a substantial number of employees. It is not bound to conduct a ballot; nor is it prevented from doing so. It is left to itself how to assess the support the union would have. The Amendment would not take away this discretion, and so it is difficult to see that it adds anything in the sense of the subsection.

Nevertheless, I was at first inclined to think that the addition of the words proposed would in fact clarify this. But I am advised that it is not so, primarily because the word "recognised" is no-where used in the Bill on its own and the subsections in question would be better without it. In other words, I am advised that it would be better not to qualify the conditional "would" here. This is our view of the matter, and our views entirely coincide on the objectives. We believe that the C.I.R. will take exactly the same view. There is nothing between us of substance on this, but, because of the drafting difficulty, I should be grateful if the noble Lord would withdraw the Amendment.

LORD CHAMPION

My, Lords, with that very sensible explanation, which I accept, I am happy to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN

My Lords, this is a consequential Amendment on the series of Amendments which I moved on Clause 44. I beg to move.

Amendment moved—

Page 39, line 31, at end insert— ("(8) Where the Commission determine, in making a report under this section, to recommend the recognition of an organisation of workers or joint negotiation panel as sole bargaining agent for a bargaining unit, and it appears to the Commission that there are in existence more extensive bargaining arrangements which will be applicable to the employees comprised or to be comprised in that bargaining unit, the recommendation—

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

On Question, Amendment agreed to.

Clause 49 [Application to Industrial Court for ballot as to recognition of sole bargaining agent]:

LORD DRUMALBYN

My Lords, this is another Amendment consequential on Amendments to Clause 44. I beg to move.

Amendment moved— Page 39, line 33, after (" recommended ") insert (" (with or without a reservation under subsection (8) of that section)").—(Lord Drumalbyn.)

On Question, Amendment agreed to.

10.45 p.m.

LORD DIAMOND moved Amendment No. 69A: Page 39, line 34, after (" workers ") insert (" other than an organisation entered on the special register ").

The noble Lord said: My Lords, I do not want to detain your Lordships a moment longer than necessary, and, frankly, I am going to ask the Government whether this same point has been discussed when I have been out of the Chamber. If it has, of course I will not pursue it any further; if it has not, may I say shortly what the point is? It has been mentioned on previous occasions and we should like the Government to bear it in mind. I do not put it more strongly than that.

The provision at the moment in Clause 49 refers to a particular organisation of workers acting on behalf of the members, or members of other unions, and the anxiety felt by those who have this responsibility is that unions which seek to represent a wide membership or group of workers want to feel that in any competition, or friendly rivalry, with other unions or other organisations of workers as to who should have the privilege of representing the wider group, they should be on level pegging. It is no more complicated than that. The words are inelegant but I think they express the position, and of course registration on the special register is much easier. It means having to go through far fewer doors and taking on far fewer responsibilities than under the registration proposed in the Bill as it stands. Simply in order to see that there would be fair play as between different unions, this Amendment is introduced. I beg to move.

THE PARLIAMENTARY UNDER-SECRETARY OF STATE, DEPARTMENT OF EDUCATION AND SCIENCE (LORD BELS FEAD)

My Lords, the noble Lord, Lord Diamond, has explained to us clearly that he has apprehensions on this matter and that this is why the Amendment has been moved. I am grateful to him for moving it in his usual moderate manner, but I think I should tell him that we also have apprehensions on looking at the Amendment. Perhaps I may explain our apprehensions. To put it shortly, we on this side of the House believe that organisations on the special register—which it is perfectly true, as the noble Lord said, are not subject to quite the same gateways as the organisations which are going on to the general register—are, in one way or another, taking on some very similar obligations to those incurred by unions on the general register. We are concerned that they should have the same benefits and advantages which accrue to trade unions registering on the ordinary register. We feel that these organisations will want to have access to the machinery for settling any disputes which may arise about their recognition as a bargaining agent. It seems to us that it would be fundamentally wrong to deny them that right simply because, largely through an historical accident (which has been discussed in Committee), the special register organisations are of a type which cannot register as a trade union but will have to be entered on that special register. I cannot emphasise too strongly that there are no special rights and privileges attached to this registration over and above those attached to ordinary registration; and in the same way we do not think that there should be any special handicap, such as would be entailed if this Amendment were accepted.

The noble Lord, Lord Diamond, referred, very fairly, to the apprehensions which organisations on the ordinary register might have; that in rivalry for recognition there should be fairness and level pegging. If one of these organisations registered on the special register is recommended as sole bargaining agent but is not thought by those it claims to represent to be capable of doing a proper job on behalf of these people, then presumably it would not succeed in a ballot. The same, of course, would apply to the case of a trade union, and I should have thought that this was fair and reasonable. We feel that we should leave the C.I.R. the full freedom to decide which is the most appropriate bargaining agent and enable any union so recommended to apply for a ballot under this clause, leading ultimately to an enforceable order, subject only to the proviso that it must be registered on either the special or the general register.

I know that we are not seeing quite eye to eye on this matter. May I repeat the point I made, which I think is the important one? We are not talking about extra privileges or rights, or anything of that sort, for special register organisations over the ordinary register organisations. All we on this side of the House feel is that this Amendment, moved for perfectly reasonable and understandable motives, might none the less be a very real threat to the special register organisations which the House has taken the greatest of care to consider at the earlier stages of the Bill.

LORD DIAMOND

My Lords, I recognise that there is the difficulty on both sides here, where there is an artificial creation such as the special register, and where I think it is agreed between us that, avoiding difficult terms like "rights" and "privileges", there are more doorways to be gone through to the general register than the special register. In that situation there will inevitably be the kind of difficulty we have here. We are anxious to protect those who have entered through the greater number of doors. We do not want particularly to disbar those who are on the special register, although they have come in the easy way. Once an organisation is on the register, it is on the register. We should not dream of pressing this Amendment too far. I recognise what the noble Lord has said. We hope that the Commission will have regard to all the circumstances, and we hope that the Government, so far as they are able, will make clear to the Commission what the problems are and what our anxieties are. Having regard to the arguments the noble Lord has put forward, and particularly to the fact that he was able to say at the start of his speech that he was grateful to me for moving the Amendment in my usual moderate way, after my recent outburst, I think I ought to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 50 [Order of Industrial Court for recognition of sole bargaining agent]:

10.53 p.m.

LORD DRUMALBYN

My Lords, Amendment No. 70 is again consequential on No. 63. I beg to move.

Amendment moved—

Page 40, line 42, at end insert— ("(1A) If the recommendation of the Commission is subject to a reservation under section 48(8) of this Act, the order of the Industrial Court shall specify the more extensive bargaining arrangements, as specified in that recommendation, and shall be made subject to the like reservation.")—(Lord Drumalbyn.)

On Question, Amendment agreed to.

LORD GARDINER had given Notice of Amendment No. 71:

Page 40, line 42, at end insert— ("( ) If it appears to the Industrial Court that there is a bona fide dispute as to whether the report by the Commission on the result of any such ballot is the true result of the ballot, such dispute shall be determined by the Industrial Court.")

The noble and learned Lord said: My Lords, we had an earlier Amendment in similar terms, and as I then said, the Government put down Amendment No. 94 covering the same point, with which, for the reasons I explained, we are not very happy. But as I said then, and I say again now, I think the sensible course for me to take would be not to move this Amendment but to discuss it when we come to Amendment No. 94.

Clause 51 [Application to Industrial Court with a view to withdrawal of recognition]:

LORD BELSTEAD moved Amendment No. 72: Page 41, line 19, leave out (" an employer ") and insert (" one or more employers ").

The noble Lord said: My Lords, I beg to move Amendment No. 72, and I wonder whether it would be convenient to the House if we discussed at the same time Nos. 75 and 77. The purpose of these Amendments is to carry right through the recognition provisions the concept of associated employers. As your Lordships will be aware, it is pos sible for a recognition order to be made in respect of a number of employers who are associated in the company law sense. Your Lordships will recall that a number of similar Amendments were tabled at Committee stage, and the reason why these particular Amendments were not tabled then was that we were expecting some more substantial redrafting of clauses 51 and 55 to deal with the point we discussed earlier about more extensive bargaining arrangements. In the event, I am putting it to your Lordships that we feel it is necessary only to make a small Amendment to Clause 55 on this account.

Amendments Nos. 72 and 75 are self-explanatory, but perhaps I might put just a few words to your Lordships about No. 77. The intention here is that the obligations incurred by a recognition order, where they relate to not carrying out collective bargaining in relation to the recommended bargaining unit (that is. Clause 55(1)(a)), should rest on two or more associated employers, both jointly and singly; but in relation to the obligation to negotiate seriously (subsection (1)(b)) the intention is that it should rest on the emloyers jointly. I hope that this explanation may be clear and found acceptable. The new subsection (3)(b) of Clause 55 is a consequential Amendment to take account of any more extensive bargaining arrangements which may have been specified in an order of the Court. I beg to move.

On Question, Amendment agreed to.

Clause 52 [Action in pursuance of application under s. 51]:

LORD DRUMALBYN moved Amendment No. 73:

Page 42, line 15, leave out subsections (3) to (7) and insert: ("(3) If, before that time expires, a settlement of the matters to which the application relates has been reached, the Commission shall report that fact to the Industrial Court, indicating the nature of the settlement. (4) lf, when that time expires, no such settlement has been reached and the application has not been withdrawn, the Industrial Court, with a view to testing the grounds of the application by taking one or more ballots, shall request the Commission to consider whether—

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

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

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

1. (a) the nature of the work which they are employed to do, and
2. (b) their training, experience and professional or other qualifications.

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

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

(8) After one or more ballots have been taken under this section in pursuance of an application under section 49 of this Act, the Commission shall report the results of the ballot or ballots to the Industrial Court, to the applicant, and to every employer, organisation of workers or joint negotiating panel specified in that application.")

The noble Lord said: My Lords, this is a formidable-looking Amendment, and I suggest that we might take with it Amendment 74,—which makes it look even more formidable. However, I think I can briefly summarise their purpose, which is to make further provision for the safeguarding of minority interests when ballots are taken on withdrawal of recognition. The Amendment makes it clear that when the C.I.R. has decided that the ballot shall be limited to par ticular sections of the bargaining unit, each and every section of the bargaining unit shall then be separately balloted. This is to ensure that the position of the bargaining agent will be left in no doubt in any part of the unit. It follows from this that the question on which the ballot is to be taken should not be, as it is in the Bill at the moment, whether the union should cease to be the bargaining agent for the bargaining unit, but, as we are proposing in this Amendment, whether it should continue to be a bargaining agent. These are simple thoughts to convey, and I hope that the wording of the Amendment, which your Lordships will no doubt have studied, conveys them clearly. I beg to move.

LORD CHAMPION

I am bound to admit that I thought these were formidable Amendments; there are a great many words involved in them. But when I came to consider them in relation to the clauses to which they refer it seemed to me that they made good sense. I have nothing to say against them. They are to some extent machinery, and to some extent they do something which clearly ought to be done in the circumstances put to the House by the noble Lord, Lord Drumalbyn. Having regard to all that, I shall certainly not advise my noble friends to oppose this Amendment and the subsequent one to which the noble Lord spoke.

On Question, Amendment agreed to.

Clause 53 [Order of Industrial Court on report under s. 52]:

10.59 p.m.

LORD DRUMALBYN

My Lords, I beg to move Amendment No. 74:

Amendment moved—

Page 43, line 6, leave out subsections (1) and (2) and insert— ("( ) Where a ballot under section 52 of this Act has been taken on the question specified in subsection (7)(a) of that section, and the result of the ballot, as reported by the Commission to the Industrial Court, is that a majority of the employees voting in the ballot voted against the continuance of the organisation of workers or joint negotiating panel as sole bargaining agent for the bargaining unit, the Industrial Court shall make an order directing the employer or employers—

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

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

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

1. (a) to cease to recognise the organisation of workers or joint negotiating panel as sole bargaining agent for that section of the bargaining unit, and
2. (b) not to accord such recognition to it at any time during the period of two years beginning with the date on which the result of the ballot was reported by the Commission to the Industrial Court.")—(Lord Drumalhyn.)

On Question, Amendment agreed to.

Clause 55 [Unfair industrial practices in connection with collective bargaining procedures]:

11.0 p.m.

LORD BELSTEAD

My Lords, I beg to move Amendment No. 75, to which I referred when dealing with Amendment No. 72.

Amendment moved— Page 45, line 40, leave out (" next following subsection ") and insert (" following provisions of this section ").—(Lord Belstead.)

On Question, Amendment agreed to.

LORD GARDINER

My Lords, I beg to move Amendment No. 76. We have had this point several times before.

Amendment moved— Page 46, line 23, at beginning insert (" knowingly ").—(Lord Gardiner.)

On Question, Amendment agreed to.

LORD BELSTEAD

My Lords, I beg to move Amendment No. 77. I discussed this with Amendment No. 72.

Amendment moved—

Page 46, line 26, at end insert— ("(3A) Subsections (1) to (3) of this section shall have effect in relation to an order made under section 50 of this Act in respect of two or more associated employers, but for that purpose shall have effect as if—

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

(3B) In relation to an order which is made subject to a reservation under section 50(1A) of this Act, nothing in paragraph (a) or paragraph (b) of subsection (1) of this section shall be construed as applying to collective bargaining in respect of matters which, by virtue of that reservation, are expected from the exclusive negotiating rights of the sole bargaining agent.")—(Lord Belstead.)

On Question, Amendment agreed to.

LORD GARDINER

My Lords, I beg to move Amendment No. 77A. This is the same as Amendment No. 76.

Amendment moved— Page 46, line 34, after (" section ") insert (" knowingly ").—(Lord Gardiner.)

On Question, Amendment agreed to.

LORD GARDINER

My Lords, I beg to move Amendment No. 78.

Amendment moved— Page 47, line 9, after (" section ") insert (" knowingly ").—(Lord Gardiner.)

On Question, Amendment agreed to.

LORD GARDINER

My Lords, I beg to move Amendment No. 79.

Amendment moved— Page 47, line 14, after (" so,") insert (" knowingly ")

On Question, Amendment agreed to.