INDUSTRIAL RELATIONS BILL

HL Deb 12 July 1971 vol 322 cc104-78

8.2 p.m.

LORD DRUMALBYN

My Lords, I beg to move that the consideration on Report of the Industrial Relations Bill be now resumed.

Moved, That the consideration on Report of the Industrial Relations Bill be now resumed.—(Lord DrumalbynDruntalbyn.)

LORD DIAMOND

My Lords, I wonder whether this would be a convenient opportunity to put one request to the Government. We now have a very long Marshalled List, and a number of Amend ments have been put down. I do not want to go into the arguments now, but I should like to make a request to the Government that they should provide us, at some early stage, with a schedule, or with the answer to the question of how many Amendments, all told, the Government have put down at Report stage and, of these, how many were in response to Opposition requests. I think that information would have to be made available sooner or later, and we should be most grateful if the Government could see their way to providing it.

LORD DRUMALBYN

My Lords, the noble Lord was good enough to give me private notice of that question. The information has already been prepared, but unfortunately I have not got it with me at the moment. However, I shall certainly let him know.

On Question, Motion agreed to.

Clause 84 [Organisations eligible for entry in special register]:

LORD DIAMOND moved Amendment No. 79PP: Page 67, line 13, after (" its ") insert (" principal ").

The noble Lord said: My Lords, I beg to move Amendment No. 79PP. The clause in relation to which this Amendment appears deals with a special register and defines the organisations which are eligible for entry in it. Subsection (3) says: any organisation shall be eligible for entry in the special register if—… (b) its activities include the regulation of relations between workers of…those descriptions… The Amendment seeks to add the words"principal activities ", so that it would then read, any organisation shall be eligible for entry in the special register if—… (b) its principal activities include the regulation of relations between workers…and employers… The purpose of the Amendment, as is plain, is to strengthen the subsection and to make it clear that, in our view, there should go on to the register only those organisations which are (what shall I say?)"professionals"and not"amateurs"in this field of regulating relations between workers and employers. These organisations are, of course, in competition with one another. It is only right that the field of competition should be a fair one, and that those which are on the special register should have, as one of their principal activities, the regulation of labour relations and of negotiation so that they can compete on fair terms with those who are not on the special register. I beg to move.

LORD DRUMALBYN

My Lords, I am afraid that, so far from strengthening this subsection, the Amendment would " bust"it. The trouble is that the purpose of the special register is not to accommodate organisations looking after particular kinds of workers. I am afraid this is an Amendment that I must oppose, and it is important that noble Lords should be clear why, because it strikes at the very heart of the reasons why the special register was added to the Bill. The special register affords a means of making the benefits of registration, together with the associated obligations, available to registered companies and chartered bodies which have some concern with industrial relations matters, but which are not eligible to register as trade unions in the normal way. The reason why they are not able to register as trade unions is precisely that the regulation of relations is not one of their principal objects. If it were a principal object they would have been unable to register as companies by reason of Section 5 of the Trade Union Act 1871, which is reproduced in full by Clause 151.

Similarly, no chartered body could hope to keep its charter if it had developed the regulation of industrial relations in its members' interests as a principal activity. Chartered bodies, as noble Lords will know, are, by definition, those which have several public interests. The Amendment would, therefore, preclude from admission to the special register the very organisations it is designed to accommodate; namely, companies and chartered bodies which are engaged in industrial relations as a subsidiary activity. The creation of a special register is indeed an important concession to these organisations, as my noble friend Lord Windlesham made plain during the debate on this part of the Bill in Committee. If there were no such register, such organisations which wanted to enjoy trade union status would have to give up their existing status, and in some cases might have to dissolve themselves and start all over again. In our view, the concesssion is entirely justified, and it would be wrong to remove it by this Amendment. I must therefore ask noble Lords to reject this Amendment.

LORD DIAMOND

My Lords, I am grateful to the Minister for his explanation. I see that there are difficulties in having this Amendment here. On the other hand, there are difficulties of the kind which I explained, which were the reason for moving the Amendment. I shall simply have to see what other method is open to us to try to achieve fairer competition, which is what we are anxious for. I see that this is not the right place for this Amendment, and I therefore ask your Lordships' leave to withdraw it.

Amendment, by leave, withdrawn.

8.9 p.m.

LORD DIAMOND moved Amendment No. 79QQ: Page 67, line 16, after (" concurrence ") insert (" of any person who is not a member or ")

The noble Lord said: My Lords, this Amendment again is in this same clause, and indeed in the same subsection. Subsection (3), as your Lordships are now aware, refers to any organisation being eligible for entry in the special register if its activities include the regulation of relations between workers and employers, and if (c) it has power, without the concurrence of any parent organisation, to alter its own rules ". It is that second provision with which we are now concerned. That is one definition of independence. In order to make this independence even clearer, we seek to add words which would make the subsection read: (c) it has power, without the concurrence of any person who is not a member of any parent organisation ". Independence can be destroyed, either by having a parent organisation upon whom an organisation depends, or by having members who exert a special power—and that is the case in certain house unions. Therefore, we propose the Amendment to ensure and establish the independence of the organisation seeking entry in the special register. My Lords, I beg to move.

LORD DRUMALBYN

My Lords, I think the noble Lord will probably recall that a similar Amendment to Clause 67, Organisations eligible for registration as trade rations, was rejected as unnecessary; exactly the same considerations apply here. Unless the noble Lord is able to show that there are different considerations, it would save the time of your Lordships if we did not pursue the matter further.

LORD DIAMOND

My Lords, I gather that what the noble Lord is saying is that he is satisfied that the Amendment is not necessary, because the independence is assured?

LORD DRUMALBYN

That is right, my Lords.

LORD DIAMOND

My Lords, that was the purpose of moving the Amendment. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN moved Amendment No. 79J: Page 67, line 18, leave out from (" funds ") to end of line 19.

The noble Lord said: My Lords, this Amendment is identical to earlier Amendments to Clauses 67 and 71 which have already been approved by the House. In moving the Amendment to Clause 67, my noble friend Lord Ferrers, explained that, on reflection, the Government had reached the conclusion that the words proposed for deletion were not an essential prerequisite of registration and might prevent organisations from registering. The same is true with regard to organisations seeking entry on the special register, and it is desirable that the same tests should apply here as apply to registration as a trade union or employers' association. My Lords, I beg to move.

On Question, Amendment agreed to.

LORD DIAMOND moved Amendment No. 79RR:

Page 67, line 19, at end insert— (" and (d) does not receive, directly or indirectly, financial assistance from any employer ").

The noble Lord said: My Lords, this is an Amendment which is similar, if not identical, to one that we discussed earlier. The purpose of moving it is to obtain—it may sound a little Irish, and I hope I offend nobody—the Minister's assurance that it is not necessary. My Lords, I beg to move.

THE EARL OF BALFOUR

My Lords, if an employer or an organisation is contributing towards a provident fund, through an organisation which is eligible to be entered in the special register, would the acceptance of this Amendment prevent such a contribution?

LORD DRUMALBYN

My Lords, if the Amendment were accepted I do not see how it could possibly prevent what my noble friend wants to see continue. The whole purpose of the clause is to allow that to continue. There may be ways in which financial assistance is made available by an employer for good industrial relations, and one would not want some minor case of that sort to interfere in any way with the test of independence. We are still satisfied that the test of independence is sufficient. Therefore, I do not think it is necessary for me to reiterate the reasons why this Amendment is also unacceptable, except to say that it would give rise to precisely the same dangers in the context of organisations seeking entry upon the special register as did the earlier Amendment in relation to the registration of trade unions. It could be an embarrassment to good industrial relations and to organisations, either on the register of trade unions or on the special register.

LORD DIAMOND

My Lords, in effect, the noble Lord has kindly given me the assurance which I was seeking. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 88 [Annual return, audit, annual report and members' superannuation schemes]:

EARL FERRERS moved Amendment No. 79DDD: Page 70, leave out lines 8 and 9 and insert (" either free of charge or on payment of a reasonable charge ").

The noble Earl said: My Lords, this Amendment is consequential on one which the noble Lord, Lord Diamond, moved earlier and which was accepted by the Government. That change has relieved registered organisations of the obligation to specify in their rules the charge to be made for supplying a rule book to any person. Subsection (6) at present requires that the charge should be specified in the rules, and we propose to remove the words in question and replace them with a provision which allows the organisation either to make no charge at all or to make a reasonable charge. My Lords, I beg to move.

LORD DIAMOND

My Lords, all I need to do is to thank the noble Earl and the Government for meeting our point of view.

On Question, Amendment agreed to.

Clause 90 [Power for Chief Registrar to inspect and apply for winding up order]:

8.18 p.m.

LORD STOW HILL moved Amendment No. 79XXX: Page 71, line 15, leave out (" in accordance with the Companies Act 1948 ").

The noble Lord said: My Lords, I move this Amendment formally, and I do so really in order to give myself an opportunity of thanking the noble and learned Lord, the Lord Chancellor, for writing me an extremely helpful letter on certain points that I had raised on this clause (which in the previous version of the Bill was Clause 88) and on two other clauses which are really allied to it. They are Clause 74 of the present version, which was Clause 72 of the previous version; and Clause 152 of the present version, which was Clause 148 of the previous version. The House may remember that when it last met to consider this Bill, I moved an Amendment to Clause 74 and the noble Baroness, Lady Tweedsmuir of Belhelvie, indicated to me that a letter was on the way from the noble and learned Lord which dealt with the points I had sought to raise. At that time I had not received the letter, but I have now received it and am extremely grateful for it.

The Amendment which I move formally—and I shall explain in a moment why I say"formally "—is really to call attention to what seemed to me a defect, in that no indication was given in Clause 90 of the machinery under the Companies Act 1948 that was to be brought into action in the event of the Registrar seeking to wind up a registered trade union or an employers' association. The noble and learned Lord indicated to me in his letter that that matter had been fully taken into account and that it was the view of the Government that the best way to deal with it would he to make Part IX of the Companies Act 1948 applicable and that an Amendment would he put down for that purpose. That Amendment is now down as No. 93W. I have done my best to study both Part IX of the 1948 Act and the various changes introduced into Part IX by Amendment No. 93W. So far as my study goes, it seems that those arrangements would be absolutely satisfactory and would provide the necessary machinery to wind up a trade union or employers' association registered under this Bill.

With regard to contributories, about which I expressed some doubt, if I understand the position rightly, I think the situation is adequately safeguarded in that they could not be called upon to contribute in a liquidation except and to the extent that they might be liable to do so under any rules of the organisation which, upon its incorporation under Clause 74, become the rules of the incorporated body. Once again, I should like to thank the Government for having given this such careful thought and for having moved that Amendment. As the noble and learned Lord's letter points out, some other matters which I raised on the other clauses to which I referred are still under consideration. I think I am right in saying that no Amendments have been tabled to those other clauses—no doubt they are still being considered. Perhaps they will make their appearance on the Marshalled List later if the Government, on reflection, think that some change is necessary. Having said that, and expressed my thanks, may I explain what I meant by"formally moving the Amendment"by now saying that, having formally moved it, I ask the leave of the House to withdraw it.

Amendment, by leave, withdrawn.

Clause 94 [Relaxation of restrictions on changeschanties in rules]:

LORD DRUMALBYN moved Amendment No. 79EEE: Page 73, line 7, leave out (" (2) ") and insert (" (1) ").

The noble Lord said: My Lords, I am sorry that I have to move this Amendment. It arises from a mistake on an earlier Government Amendment considered by your Lordships in Committee as Amendment 263EEEE. Line 7 in subsection (3) refers to the purposes specified in the clause. Those are set out in subsection (1) and not subsection (2). I beg to move.

LORD DIAMOND

My Lords, we are grateful to the noble Lord. This is obviously an error. The only comment I have to make when I see the multitude of noble Lords who have added their names to the Amendment is to say how pleasant it is to think of the number in your Lordships' House who read the Bill with such assiduity as to pick out that: One is one and all alone, And ever more shall be so. I do not know why these things arise in the way they do but in fact I think our Amendment was down first and the noble Lord, Lord Drumalbyn, added his name; the courtesies of the House require that the noble Lord's name should come first, but I am delighted that we are in agreement.

On Question, Amendment agreed to.

8.26 p.m.

Clause 96 [Inducement of, or threat to induce, breach of contract]:

LORD GARDINER moved Amendment No. 80: Page 73, line 22, after (" dispute ") insert (" knowingly ").

On Question, Amendment agreed to.

LORD DIAMOND moved Amendment No. 80B: Page 73, line 23, leave out (" or threaten to induce ").

The noble Lord said: My Lords, in what I am sure is the very temporary absence of my noble friend Lord Archibald, I beg leave to move this Amendment. It relates to the Part of the Bill which deals with unfair industrial practices. This clause sets out to deal with inducements, or threats of inducement, to breach of contract. There was discussion at ane earlier stage, which I recollect not with quite the same complete clarity that I would have wished, on the meaning both of inducement (which the noble and learned Lord who sits on the Woolsack was good enough to explain) and also of threatening to induce. It seemed to us that the inducement itself presented a complex part of the law, but that was much clarified by the discussion which took place. However, the question of threatening to induce seemed to us to produce a situation which was almost incomprehensible.

The noble and learned Lord who sits on the Woolsack explained, so far as I recollect, the various elements that go into the legal definition of an inducement to breach of contract, and when one came to consider those elements it seemed to us that one of them was completely incompatible with a threat of inducement, because inducement had to have a certain effect and one could not know in advance how a threat could be sure to produce that result. Therefore it seemed to us that threatening to induce was a concept which was very difficult to understand and no doubt would be very difficult for those whose function it would be to interpret, particularly in courts of law. Therefore we put down this Amendment, in the hope that we could receive further clarification and understanding of this matter. When I say"we"put it down, I mean that some of us put it down. It so happens that it was not I who did so, but my noble friend Lord Archibald, who, if he were here, would be able to explain the matter in far greater detail and with much greater authority than I can attempt to do. As I have explained to your Lordships on many occasions, I am no lawyer. I listen to these matters with great interest and am much encouraged and enlightened by what transpires. But in the circumstances Ido not wish to delay your Lordships unduly, especially as we have lost Lord Archibald. I merely move the Amendment, and hope that we shall receive a full explanation from the Government. I beg to move.

LORD STOW HILL

My Lords, shortly to supplement what my noble friend has said, I have re-read the argument, and I think the noble and learned Lord the Lord Chancellor may be able to confirm that my recollection is correct when I say that my noble friend's point was this. The noble and learned Lord had indicated that in the view he held, if one construed the word"induce"it had five separate elements. There was a certain controversy as to whether it was four or five, but in point of fact the noble and learned Lord has on a number of occasions told the House what he regards as the necessary elements in the word"induce ". If I remember correctly, my noble friend Lord Archibald's argument, which was put in the form of a question to the noble and learned Lord the Lord Chancellor, it was in substance this. If you accept that the word"induce"involves certain things, at least there must be a contract and at least there must be a breaking of it as a result of the inducing. Upon the assumption that those are prerequisites before the word"induce"can be said to be in operation, how does one fit into that situation a phrase like"threatening to induce "? In other words, you can utter a threat which may be completely ineffective and go no way towards producing the result that there is an inducing with the components that the noble and learned Lord indicated in his view it contained. I think that was the substance of my noble friend's point. I do not know whether the noble and learned Lord has his argument in front of him, but I thought it might be helpful to the House if I gave at any rate what was my recollection of his argument.

THE LORD CHANCELLOR

My Lords, I am still in some doubt as to the purpose of this Amendment. Clause 96, which we are discussing, makes it an unfair industrial practice in certain circumstances for any person, in contemplation or furtherance of an industrial dispute, to induce another person to break a contract to which that other person is a party. The clause says that, as well as to induce, a threat to induce that result is an unfair industrial practice. The noble Lord, Lord Diamond, in the absence of the noble Lord, Lord Archibald, who raised the question rather interrogatively on Committee, moves to omit the words,"or threaten to induce ". But I still do not know why. Therefore, it is rather difficult for me to reply to the Amendment. It seems to me to be every bit as bad to achieve something by threats as to achieve something by action. In a previous, somewhat intemperate speech the noble Lord, Lord Diamond, characterised something as blackmail—a phrase which I had always understood to be against the tradition of this House. But I cannot understand why a threat is not as bad as carrying out the threat if it achieves its results. I defined the word"induce"in accordance with the textbook definition on a number of occasions at the Committee stage; and I have accepted an Amendment by the noble and learned Lord, Lord Gardiner, in order to remove doubt and allay anxiety, to insert the word"knowingly"before the word"induce"wherever that word appeared in the Bill so that there could be no doubt at all that a person so acting would be acting in knowledge of what he was doing. I am now asked to remove from the sphere of unfair industrial practice a threat to commit the knowing inducement of a breach of contract, and nobody can explain to me why. I should advise the House to reject the Amendment.

LORD DELACOURT-SMITH

My Lords I think, with respect, that the noble and learned Lord has himself underlined the difficulties in which some of us find ourselves, for if I understood him aright he based the justification of these words upon the argument that to achieve an object by a threat was as bad as achieving that object by carrying out the actual act which had been threatened. This is the difficulty in which I think some of us find ourselves: that it is an unfair industrial practice to threaten to induce without it being established that the threat itself in fact produces any effect. The noble and learned Lord, if I understood him aright, seemed to make the assumption that the threat referred to in the wording was a successful threat.

On Question, Amendment negatived.

8.36 p.m.

THE LORD CHANCELLOR moved Amendment No. 80A: Page 73, line 29, leave out (" section ") and insert (" Part of this Act ").

The noble and learned Lord said: I rather suspect that once again I am standing in for my noble friend. I ought to explain that this Amendment is the first of quite a number of Amendments which can really be understood only if they are read together. If I may briefly list them, they are Nos. 80A, 81A, 81B and 81C. The purpose of this Amendment to Clause 96 is to extend the references to trade unions and employers' associations in the new subsection (3) which is contained in Amendment No. 81C, which is to page 74, line 9, so as to include organisations which are on the provisional register. It is a consequential Amendment to the Amendment to subsection (3) of Clause 97.

The Amendment to Clause 97 has three purposes: first, to make it clear that the unfair industrial practice in Clause 97 applies to any person whether or not he was the person who committed the original unfair industrial action which his secondary action is intended to support; second, to make it clear that a trade union is not to be made liable under this clause for giving official sup- port to an initial unofficial act—for instance, calling a strike in breach of contract, which is an unfair industrial practice under Clause 96; and, third, to carry out the promise which I made at the Committee stage to omit the horrible words"aid and abet ", which in any event have criminal connotations. This is done by substituting the verb"to further"for the double verb"to aid and abet"in relation to the taking of secondary action.

My Lords, when we discussed Clause 97 in Committee, I pointed out that the Government regarded it as defective in the form in which it has hitherto appeared and that an Amendment would be put down for Report. I also made it clear that when the time came to put down the Amendment which I had promised I would take what advantage I could of the observations made during the debate on the Committee stage. I do not think I need say anything more in criticism of the phrase,"to aid and abet ". Everything that need be said was said on Committee stage and on the whole I agreed with it, if I could find another phrase to do as well which had civil and not criminal implications and which could be described as contemporary English. I think we have succeeded, by the aid of the official draftsmen, by the use of the word"further ".

At the Committee stage we also discussed the position that arises when a trade union makes official industrial action which originally was unofficial. I put forward the view that I did not believe that there was any real danger to a trade union that such action would in itself be considered an unfair industrial practice under the clause. But I explained to the Committee that in another place there had been those who had expressed anxieties on this score and who might still fear that the clause might bear unfavourably upon legitimate union recognition of industrial action. Subsection (3) as amended will, I hope, eradicate any remaining doubt, whether well-founded or ill-founded, about the intention and scope of the clause in this context.

My Lords, the clause as it stands deals with the liability of any person for taking or threatening to take steps specified in subsection (2) for the purpose of aiding and abetting another person in doing anything which is an unfair industrial practice by that person under the Bill. As I said in the Committee, we also wish to amend the clause to make clear that it will be an unfair industrial practice for someone to organise industrial action to further an original unfair practice committed by himself as well as one committed by someone else. It would obviously be quite illogical, and at variance with our intention, if the person who committed the original practice were at liberty to seek to further his original action, if that action was an unfair industrial practice, by organising secondary action in support of it; but would be liable under the clause if he supported an unfair industrial practice of the same kind as originated by someone else; or alternatively, that another person would be liable if he supported the original action originated by himself.

The Amendment to Clause 96 is really paving to, or consequential upon—whichever way one looks upon it—the Amendment to Clause 97 which takes account of an objection made by noble Lords during the Committee stage debate and the promises that I have made and that I hope I have now redeemed. Therefore, I beg to move the Amendment No. 80A standing in the name of my noble friend Lord Drumalbyn.

8.45 p.m.

LORD STOW HILL

My Lords, technically we are discussing what the noble and learned Lord the Lord Chancellor has described as a paving Amendment; and in moving that Amendment he has also explained to the House very clearly the re-cast of Clause 97 which appears in the Amendments in the Marshalled List to which he has referred. I think it would probably be for the convenience of the House if, in answering, or in making such observations as I think may be of use on the paving Amendment, I also make observations in reply to the observations by the noble and learned Lord on the Amendments for which this paves the way. If that is the general wish of the House I will proceed accordingly. The only slight disadvantage about that is that the House will see that there are on the Marshalled List Amendments Nos. 81J and 81K in the name of my noble friend Lord DelacourtSmith. He may wish to move them in due course, although I would apprehend that if Amendments 81A and 81B were carried, that would automatically involve the result that his own Amendments could not be moved. Therefore while I am making some observations on the new form Clause 97, the House will perhaps permit me to give a general indication about what, as I see it, would be the effect of the two Amendments in the name of my noble friend Lord Delacourt-Smith. If that is a convenient course I propose to follow it, because I think that it will occupy the least amount of time.

We had a very full discussion in Committee on this group of clauses, which, obviously, are central to the Bill. I am sure we are all agreed on that. In the course of them a number of questions were raised, and the noble and learned Lord the Lord Chancellor indicated, as he has reminded us to-day, that he had some doubts about this form of what is now Clause 97; and that he would seek to re-cast it so as to take account of the doubts which he harboured about it. I should like to test his wording to see how far it has gone and what are the changes that are made and then to offer one or two observations on the re-cast clause which I think probably the Government will not be able to accept, because it has been clearly indicated by Ministers that here we are at the parting of the ways. Noble Lords on this side of the House take one view as to what should be the content of this group of clauses; the Government take a different view, and both views are strongly held. Therefore there is limited room for concession on both sides. I believe that both sides of the House would accept that that stage must come in the case of any major difference and here we are right at the very kernel of it.

On that basis may I take the successive Amendments in the name of the noble Lord, Lord Drumalbyn, which the noble and learned Lord the Lord Chancellor has explained? I am sure that we are all indebted to him for having removed the criminal taint of the words"aid and abet ". He has substituted for them, further any action which has been taken, whether by him or by any other person. The submission that I would make to the House is that the words substituted are very much wider in scope than the original words"aid and abet ". Noble Lords will notice that in the two Amendments in the name of the noble Lord, Lord Delacourt-Smith, the effect of the words"aid and abet"in their restricted sense is sought to be reproduced in the wording which he has suggested—namely, take any material action in support of ". The noble and learned Lord the Lord Chancellor may agree or disagree with me, and in any case I am sure that the House would be grateful to hear his view whether I am right in suggesting that the expression,"further any action which had been taken"is much wider in scope.

After all, my Lords, something which one does and which, even in a minimal sense, permits the consequences of an action previously taken by somebody else, or by oneself, could, I should have thought, come within the scope of the words,"further any action which has been taken ". By contrast, I should have thought that one does not aid and abet unless one does something such as is described in the language of my noble friend Lord Delacourt-Smith. You take some material action in support of it. You do something which is identifying you with it. You almost take part in it. That I should have thought, was the normal connotation of aiding and abetting. If I am right in thinking that the words have been expanded in the language that the noble and learned Lord has chosen, personally speaking, I should regret it, and I think that my noble friends would share that regret. These are extremely important clauses, and they put upon unions which are not registered what I hope it is not an exaggeration to describe as the severe disabilities imposed by Clause 96. For this reason we on this side of the House very much regret an extension of the ambit of the words,"aid and abet ".

The second point I should like to put in the form of a question to the noble and learned Lord the Lord Chancellor: what is precisely the scope of new subsection (3) which he is proposing to introduce into Clause 97? He has already explained it, but I should like to be certain that I followed his explanation accurately. The exclusion that subsection (3) makes is a very restrictive one. I be- lieve that that was the intention of the noble and learned Lord. He indicated that his intention was that where there is unofficial action which is subsequently made official by a registered trade union, the official action thereafter taken shall not itself constitute an unfair industrial practice. The reason for that was that the question had been raised in Committee as to whether official action by a registered trade union, following upon unofficial action, could itself constitute an unfair industrial practice. I have been trying to think of what other circumstances could be brought within the scope of the exclusion, and I have not been able to think of any. There may be others.

If I may, again following the course that I have adopted, refer my comparison to the language in the second Amendment in the name of my noble friend Lord Delacourt-Smith, that would be the language which I should prefer and which I imagine my noble friends would prefer. I say that in the knowledge that probably the Government find it unacceptable because it conflicts with a basic view they hold. I hoped that the change in Clause 97 would prevent the consequence which I thought might be possible during the course of the Committee stage, that if a registered union took action to assist a union overseas, that automatically would constitute an unfair industrial practice. Without going into the minutiae of the language, that would be the result of the language chosen by my noble friend Lord Delacourt-Smith. When I put that point, the noble and learned Lord the Lord Chancellor said that in his view, there was not much reason for that. He thought that in the whole concept of the Bill, and bearing in mind the general principle of its interpretation, actions described in a Bill, unless by necessary implication it is otherwise indicated, relate to actions which take place within our shores and not overseas. I did not feel wholly convinced by the argument, but I hope that the noble and learned Lord's view on that is right. I am not saying that it is wrong. Any danger would have been removed by Amendment 81K. I feel I am on safe ground in saying that the Amendment of the noble and learned Lord in the new subsection (3) is not designed to achieve that wide exclusion and is carefully framed so as not to go so far as that. There is a difference of adoption and approach, and that is where one has to leave it.

Those are my general comments. I should like to add an expression of thanks to the noble and learned Lord for obviously having considered carefully the arguments advanced and the criticism of this group of clauses during the Committee stage, and for producing, as a result of his further cogitation, this new clause which does not contain some of the defects that he felt might be inherent in the old one. I regret that he did not feel able to go further in reducing the rather draconian and adverse consequences to Clauses 96 and 97 as they now will appear in the Bill. Having said that, I would add that I do not feel able to advise the House to oppose the Amendment.

8.56 p.m.

LORD DELACOURT-SMITH

My Lords, there is little which I can or would wish to add to the clear observations of my noble friend. I should like to add my appreciation to his for the steps which have been taken to remove some of the phrasing from this part of the Bill which some of us found objectionable. When one looks at the two clauses which are now under consideration it does not seem that what has been done by the Government has removed the unfairness of Clause 97 as it will stand even when amended. It was to this which my noble friend was referring when he spoke of the difference of approach between the two sides of the House which comes out clearly in the consideration of these clauses. He went on to speak of the poor prospect of the Government being disposed to modify these clauses in a way that would make them a great deal more acceptable to my noble friends.

I can bring this out best by looking at Clause 97 as a whole when the Amendments to which the noble and learned Lord on the Woolsack has referred are embodied. The embodiment of these Amendments will not remove the unfairness of Clause 97, which tells so much more heavily against workers and trade unions than against employers and employers' organisations. The two sides in industry have now a much more varied and sophisticated armoury of weapons than at one time they had, when there was a strike on the one hand and a lockout on the other. The Government have recognised that on the employees' side, in the case of trade unions, there is a range of actions that can be taken in the course of an industrial dispute which fall short of a strike. The Government have defined these as organising, procuring, or financing any irregular industrial action short of a strike. But so far as the employers are concerned they refer still to the sole weapon of a lock-out. That is the only employers' weapon to which reference is made at any rate in this clause of the Bill.

I should have thought that it was widely recognised that employers now, in the exercise of their industrial authority and their economic power, had similarly a whole range of action open to them short of a lock-out in an industrial dispute which can be used particularly against individuals: restriction of normal promotion expectations, removal from one factory to another location which would be much less convenient to the individual; reallocation to a new job which may be much less favourable and satisfying; limitation or reallocation of overtime, and of course various other kinds of victimisation such as a concerted refusal to employ a particular worker, or one employer in some way or other making a suggestion to another employer that he should either dismiss or refuse to employ a worker whom the first employer has dismissed and perhaps, as he would be able to under this Bill, refused to reinstate despite the decision of a tribunal.

It is interesting that in the Press only this morning there is reference by one sizeable trade union to an anxiety that the employers are compiling black lists of workers who, for one reason or another, are not looked upon favourably. It would surprise me very much if there did not exist in quite a number of places black lists of workers who have committed no offence and who indeed may well have done nothing which would be even an unfair industrial practice under this Bill. I make these observations to draw attention to the fact that, even with the Amendments which are now being proposed, which as we recognise, and as my noble friend has recognised, go at any rate some way to taking account of the views which were exnressed, there still remains a basic inequity, as we see it, in the clause which we have particularly under consideration at the moment. I must further emphasise the point which was made by my noble friends, that it appears to us that the expression"to further any action"is a wide term. It would be helpful to know whether the Government are fully satisfied that that term really is the appropriate one in these circumstances.

9.3 p.m.

THE LORD CHANCELLOR

My Lords, may I begin by making one general observation'? I must say that one becomes rather saddened by the somewhat grudging attitude of the Opposition when we carry out our undertakings. If I had given no promises and made no concessions on Clause 97 (as it now is) in Committee, and had put down no Amendments at all, as I should not then have been bound to do, but had simply used our majority to succeed in dealing with it, we should have got through this clause without very much discussion. But because I went out of my way to be conciliatory, to make promises and to carry them out, I am greeted with a deluge of rather deprecating remarks. I do not suppose that that will break my bones; I only draw the attention of the House to the fact that in the end, perhaps, Ministers will be found who do weary of well doing; I hope that I shall not.

The first criticism which was made was that I had carried out my undertaking to get rid of the words"aid and abet ", which had at any rate the merit of having behind them a long legal history, by introducing the words in the proposed new subsection,"to further any action ". I am asked to say whether those words are not wider than the words"aid and abet ". I am inhibited from giving an absolute assurance about that because, as I tried to explain on Committee, I have never been able to understand what the word"abet"means. It was precisely because I was unable myself to understand what the word"abet"means that I was eager to get rid of it. All I can say is that we went to the draftsman and said,"Look; can't you translate this into modern English which people will understand?", and he came up with the Amendment which I am now proposing. I think it more or less covers"aid and abet "; I cannot think of anything which is different in it, and I am not prepared to say that it is wider.

Nor did the noble Lord, Lord Stow Hill, say just how far he thought it was wider. He contrasted it unfavourably with the rival Amendment No. 81J—" take any material action in support of ". I should have thought that the draftsman had said"take any material action in support of"rather more elegantly by using the word"further ", and I prefer it. But I cannot honestly say, not knowing what the word"abet"means, which is the wider. It seems to me they are pretty well identical, and I prefer the professional draftsman to the amateur draftsman; and as I was not a professional draftsman I can say that without immodesty.

The next point made was that the noble Lord, Lord Stow Hill, said he hoped I was right about the non-extraterritorial application of an Act of Parliament. Well, so do I, but I do not think much of that by way of criticism. It was all right to say he hoped I was right when I said, in answer to his question across the Floor in Committee, that this was the answer to his criticism. But if he thinks I am wrong, I should like him to tell my why. He has had a month to think about it since, and one becomes rather tired of people saying a month later, when they have all the resources and expensive legal education and a most notable legal practice and experience behind them,"I wasn't altogether sure whether the Lord Chancellor was right." Cannot he do better than that? If he cannot, I shall assume that I am right because I thought that what I said was pretty elementary law.

The next point was that contrast was drawn between the new subsection, which carried out exactly the terms of my undertaking, and, again, the rival put forward by the noble Lord, Lord Delacourt-Smith, in Amendment No. 81K. The point about No. 81K is that it would defeat altogether the whole purpose of Clause 97. If we adopted Amendment No. 81K, there would not be any purpose in having Clause 97 in at all because, obviously, if the second reaction complained of is itself an unfair industrial practice, there is no need for Clause 97 at all. But those of us who supported Clause 97 in the first place did so precisely because we visualised a situation in which an unfair industrial practice was undertaken and then a number of more damaging actions, not in themselves unfair industrial practices, were undertaken in support of it. That is what Clause 97 is about. That is what Amendment No. 81K would take out again. So much for that.

My Lords, I turn now to the speech of the noble Lord, Lord Delacourt-Smith, who talked about the underlying unfairness. The argument he presented to the House was that the poor old employer has apparently only one remedy, the lockout; and that the unions, in the white heat of technological revolution, have devised a wider range of weapons (or of clubs in the bag) to bring pressure to bear on the employer. The noble Lord, Lord Delacourt-Smith, then suggested a number of nasty things, short of a lockout, that the employers could do to individual workmen whom they did not like: black lists, and all the rest. The trouble about that is that it loses sight of the purpose of the clause. It is one of the many arguments that have been presented from the Opposition Front Benches during the course of these protracted debates in which the wood is completely lost sight of by an ingenious catalogue of trees in a totally different plantation. This clause is about unfair industrial practices; and before you get started on the clause you must assume that something has been done which is an unfair industrial practice. The unfair industrial practice in this case is inducement of breach of contract. If the employer does that, the Clause bites on him. If the trade union does it, the clause bites on them. But in order to get the clause to bite on anybody you must get the original unfair industrial practice started. Once you have done that the clause can bite.

The fact is that this clause is thought necessary in order to prevent a whole sequence of actions starting from an illegal origin, an origin which would be illegal under the Bill if it becomes an Act. The new subsection (3) covers the case—I think unnecessarily for the reasons I gave in Committee. But, for the reason I gave at the outset of these remarks, I wanted to be conciliatory and so I explained that if there was any doubt about this matter we would put it beyond the range of doubt by introducing a new subsection. That is what we have done. We did it in order to cover the case which we thought was substantially just and which was presented in Committee—where officials of a union or members of a union take illegal action which would bring them within the range of an unfair industrial practice by virtue of Clause 97. Our action in support of our undertaking is to exclude the liability of the union if all they had done was to render official an action which had previously been unofficial. That was the case presented to us in Committee. That was the case with which we undertook to deal. That is the case with which we have dealt in the third proposed Amendment.

I hope that, without undue cantankerousness, I have replied to the not very generous welcome which has greeted the fulfilment of the undertaking given by me and by my noble friends. I hope that, with these explanations and answers, the House will be prepared to accept the Amendment.

On Question, Amendment agreed to.

9.13 p.m.

LORD STOW HILL moved Amendment No. 80E: Page 73, line 39, at end insert (" other than any part of a collective agreement which is a procedure agreement as defined in subsection (5) of section 162 of this Act.")

The noble Lord said: My Lords, the Amendment which I beg to move is really—I will not say on Report"of a probing nature "—to ask the House to consider whether or not the expression"contract"in subsection (3) of Clause 96 has been drawn too wide. I hope that I do not repeat unnecessarily that Clause 96 is crucial to the whole thinking of the Bill. It is obviously of great importance to trade unions to be as precise as possible in ascertaining the obligations which are put upon the unions and what they have to fear if they intend to embark upon industrial action.

Before the Bill was introduced it was only actionable if you induced a breach of a contract of employment under the 1906 Act. Now, in accordance with the Donovan recommendation, the expression"contract"in subsection (1) has been enlarged so as to include contracts other than contracts of employment. Then one looks to see what contracts are included within the scope of Clause 96, and one finds in subsection (3) that, without being I hope, too technical, a collective agreement is not included in a contract the breach of which one must not induce. But then paragraph (b) introduces a qualification of that general exclusion: notwithstanding anything in the preceding paragraph, includes so much of any contract of employment as is implied or incorporated in that contract by reference to a collective agreement.

The submission upon which the Amendment is based is that the incorporation into the contract of employment of terms in a collective agreement should not include any terms in a collective agreement which constitute a procedure agreement as defined in subsection (5) of Clause 162. Clause 162 is a new and comprehensive clause which gathers together all the elements which go to define a collective agreement, and subsection (5) of that new clause describes what is meant by"procedure agreement ". Quite clearly, you can by a course of conduct get terms gathered from a collective agreement and made part of a contract of employment.

A collective agreement specifies certain terms and conditions. A worker goes to work upon terms that his contract of employment will be upon the basis of those conditions. They thereby, I should have thought, on ordinary principles of law, become part of his contract of employment; and that indeed is intended by paragraph (b). But I do not find it easy to see how the particular features of a collective agreement which constitute a procedure agreement and which are set out in paragraphs (a) to (g) of subsection (5) of Clause 162 could very well be incorporated into a contract of employment. Therefore the Amendment is really designed to elicit an answer from Ministers as to what types of provisions contained in a procedure agreement they envisage becoming part of a contract of employment. There may be some. I find it not too easy to see that any of those described in paragraphs (a) to (g) of Clause 162(5) could very well be incorporated; but I daresay I am wrong.

My reason for moving this Amendment, as I have said, is that I think it is of such critical importance that one should be clear in one's own mind as to what contracts one is referring to in Clause 96. Therefore, I should be most grateful if the noble and learned Lord the Lord Chancellor, or whoever is going to reply, would be good enough to give us some examples—there may be many, and I may be asking a question which is easily answered—of a procedure agreement which could become part of a contract of employment. As your Lordships will know very well already, the parties to a collective agreement are not the individual workers but the trade union and the employer. It is for that purpose that this Amendment is put down, and I beg to move.

THE LORD CHANCELLOR

My Lords, Clause 96, as by this time we know, deals with inducing a breach of contract and, with certain exceptions, makes to induce knowingly a breach of contract an unfair industrial practice. Subsection (3) of Clause 96, with which this Amendment is concerned, defines or at any rate gives a line on the meaning of the word"contract ", excluding from the word"contract"in paragraph (a) collective agreements or any part of collective agreements. They are not contracts, the knowing inducement of a breach of which constitutes an unfair industrial practice. But subsection (b) makes it plain that included in the word"contract ", knowingly to induce a breach of which is an unfair industrial practice, is so much of any contract of employment as is implied or incorporated in that contract by reference to a collective agreement ". The noble Lord proposes a new Amendment, which puts an exception to that exception by using the words other than any part of a collective agreement which is a procedure agreement as defined in subsection (5) of section 162 of this Act. The effect of that would be to remove from the scope of the definition of contract for the purpose of Clause 96 any terms of an individual contract of employment which were incorporated by reference to a procedure agreement between an employer and an organisation of workers. Bearing in mind that the terms do not include a collective agreement of any kind or any part of it and, of course, a procedure agreement is a collective agreement, we now look at what it includes. The answer is that it includes among other things an individual contract of employment. That is put in because we do not want to create a situation where unofficial strike leaders could induce a number of individual workers to commit breaches of their own contracts of employment, for which the individuals would remain liable, while the instigators of the whole affair could get off scot free because they were not guilty of an unfair industrial practice.

The whole philosophy of the Bill as regards unfair industrial practice is that the instigators are those who primarily must be held responsible, and not the individual. The real criticism of the noble Lord's Amendment is that it reverses the whole philosophy. If I may come back to the question he asked, since he described this as a probing Amendment, I can say that individual contracts of employment which are inside the definition of contract for the purpose of Clause 96 are all made up of terms which are incorporated as a result of collective agreements reached between an employer and a trade union. A substantive example is rates of pay. When a trade union makes a new agreement with an employer, the individual contracts of employment become amended by the new rates of pay and such terms are substantive terms in contracts of employment by reason of those collective agreements. But some are procedural. For example, take agreements which might be negotiated between an employer and a trade union providing that any employee who has a grievance shall, in the first instance, refer the grievance to his immediate supervisor or union representative: this is not altogether unreasonable and it is not at all unusual.

It seems to me—and I believe it will seem to the House—both inconsistent and illogical to suggest, as the Amendment does, that the substantive terms incorporated as a result of collective agreements should be within the scope of the definition of contract while procedure agreements should be excluded. That would largely nullify the effect of procedural terms incorporated in individual contracts, and thereby reduce substantially the range within which an unofficial strike leader who chose to break a contract within the clause, which is a contract right across the field, would become liable for what he did. I am bound to say that I think it would have a deplorable effect upon the authority of responsible union officials, since it would make it so much easier for unofficial strike leaders to call strikes without running the risk of proceedings under Clause 96.

I think the Amendment is also illogical, because to my mind it draws a wholly illogical distinction between the substantive clauses in an individual contract of employment, made by reference to negotiation arrived at in collective agreement, and those which are purely procedural. I should have thought that was one-sided and lacking in logical reasons to support it. With that explanation, I hope that the noble Lord will not pursue this Amendment; but if he does, then my advice to the House would be to reject it.

LORD STOW HILL

My Lords, I am grateful for the answer. Of course, on the general merits I am not arguing in a contrary sense from that of the noble and learned Lord. What I was seeking to do was to try to obtain precision; if I may say so respectfully, I do not think the noble and learned Lord quite answered that part of the argument. He did to some extent. He said:"Well, if you look at a collective agreement, that part of it which relates to rates of pay would probably, by implication, become incorporated into the contract of employment." I agree: and so it should. I am perfectly content that the contract of employment we are talking about should be one which, by implication, incorporates that part of the collective agreement which relates to rates of pay. But the point I put to the noble and learned Lord—which I think he only partly answered, perhaps by reference to procedures relating to grievances—was that it seemed to me that, if you look at the content of a procedure agreement, ordinarily that does not become part of the terms of a contract of employment. Take, for example, paragraph (d): facilities for officials of trade unions or other organisation of workers; That does not become part of the contract of employment of the individual worker, though no doubt it is a useful provision. As I have said, my whole objective in moving this Amendment was to try to get clearly stated in Clause 96 what is the contract, or what are the contracts, that one is talking about when one applies the provisions of Clause 96. I should have thought that by including the procedure agreement as part of a collective agreement you are including something which is unlikely to be incorporated in the contract of employment, and therefore you are making for uncertainty; you are moving away from precision and engendering doubt as to what is the scope of Clause 96. That is the point. Obviously it is not worth while pursuing. The House is in possession of the arguments on both sides, and, having said that, I ask your Lordships' leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.28 p.m.

LORD GARDINER moved Amendment No. 81:

Page 73, line 39, at end insert— (" (4) Nothing contained in this section shall render it an unfair industrial practice for any person to publish any matter upon an occasion privileged within the meaning of the Defamation Act 1952 as amended by any subsequent Act or to publish, whether orally or in writing his honest opinion on a matter of public interest.")

The noble and learned Lord said: My Lords, I am not sure that anybody moving a further Amendment to this Bill ought not to begin by expressing an apology. I do not propose to do so in this case, for two reasons. The first is because after 19 days, and having completed more than half of the Report stage, the Government at half-past two this afternoon were still going to move a further 76 Amendments, of which 16 appeared on the Marshalled List for the first time this morning. Secondly, we are not on this clause discussing trade unions or employers' associations. This is the one clause on which we are not; it is the one clause which excludes trade unions and employers' associations, or persons acting for them. Here we are discussing you and me and the whole of the general public. What we are dealing with is freedom of speech; and experience has shown that Parliament has, rightly, always been extremely vigilant in the whole field of freedom of speech.

I start from this point of view. Our law is not as well arranged or as systematically arranged as it should be, although it is improving; but, of course, when a lawyer is asked anything about the law the first thing he has to do is to ascertain what is the category of law in question. If the client says"If I do this, shall I be committing a criminal offence?"then the lawyer knows where he is: he is in the field of criminal law. If there is a contract concerned, or a possible breach, then he is in the field of contract and he knows that he is dealing with the law of contract. If it is a question of a tort, the law saying that you must not defame your neighbour or trespass on your neighbour's property, then the lawyer says,"Well, I know the principle of the law of tort, and I know where I am ".

But I think it is essential to realise that in this Bill we have a wholly new thing which no lawyer has ever seen before, which he knows nothing about and which does not fall into any known category. It is a thing called an"unfair industrial practice ". It may concern a contract or a breach of contract, but it is not part of our law of contract. It may result in the man's being sent to prison for not obeying an order. It is not called an injunction but a new thing,"an order in the nature of an injunction ". But it does not create a criminal offence, and it is not part of our criminal law. Knowingly to induce A to break his contract with B, so that B suffers damage, is under our law an actionable tort. This unfair industrial practice is not a tort, and by a later Amendment the Government are making that clear by saying that the Industrial Court shall not be entitled to hear any action of tort. So it is something quite new and something to which none of the existing rules applies.

It was in these circumstances that during the Committee Stage fears were expressed about your right and my right to freedom of speech, and the particular risk which might attach to the Press. There are two things to be said about this. The right to express your honest opinion on a matter of public interest is not, and never has been, a special right of the Press. It is your right, and my right and everybody's right. Of course it applies to the Press, but it applies to everybody else as well. But the statement made by the noble and learned Lord the Lord Chancellor last time, to the effect that he did not really think the Press ought to have any special privileges, is certainly not a view that has ever been taken by Parliament.

The foundation of the right of the Press to report proceedings in Parliament, however damaging it may be, however defamatory, or however much it may cause people to break contracts, depends on the Parliamentary Publications Act 1840. The right of the newspapers to publish fair and accurate reports of what goes on in court, no matter what the consequences to third parties may be, depends on the Law of Libel (Amendment) Act 1888, and for the rest, it depends very much on the Defamation Act 1952, which largely codified the law in this field, much of which up to that point had been case law. The Act relates to existing defences of justification and fair comment, but in Section 7, newspapers are given, subject to certain conditions, a qualified privilege, and Parliament thought it right that newspapers should be in that special position. The section says: Subject to the provisions of this section, the publication in a newspaper "— it applies only to newspapers— of any such report or other matter as is mentioned in the Schedule to this Act shall be privileged unless the publication is proved to be made with malice.

Part I of the Schedule relates in the main to reporting proceedings of other legislatures and reports of proceedings in courts—international courts and so forth. Part II includes these words—I will not read them all: A fair and accurate report of the findings or decision of any of the following associations, or of any committee or governing body thereof, that is to say… (b) an association formed in the United Kingdom for the purpose of promoting or safeguarding the interests of any trade, business, industry or profession, or of the persons carrying on or engaged in any trade, business or profession, industry and empowered by its constitution to exercise control over or adjudicate upon matters connected with the trade, business, industry or profession, or the actions or conduct of those persons; So, whatever inducement that may cause to other people in defamation—but, of course, not in relation to the hitherto unheard of"unfair industrial practice"the Press—was protected in a publication of that kind.

Then there is this passage: A fair and accurate report of the proceedings at any public meeting held in the United Kingdom, that is to say, a meeting bona fide and lawfully held for a lawful purpose and for the furtherance or discussion of any matter of public concern, whether admission to the meeting is general or restricted. Then it goes on to include fair and accurate reporting of the proceedings of local authorities, tribunals and general meetings of companies and so forth. But of course this protects a newspaper only from proceedings in defamation and certainly does not cover what in this Bill is called"an unfair industrial practice."

It was in those circumstances that in Committee my noble friend Lord Stow Hill, put down an Amendment for the protection of the Press. He raised a perfectly simple case, which was of this nature. A local reporter goes along to a factory where a public meeting is being held at the gates and a small number of employees are being addressed by a man who, rightly or wrongly, is saying,"Our working conditions in this factory have become so intolerable that we really have no alternative except to walk out." The journalist reports this and makes a fair and accurate report of the meeting. He says,"I went into the factory myself. I saw that the working conditions were exactly as this man had described them. I sympathised with them, and if I had been one of them I would have come out myself." As nine-tenths of the workers in the factory read that local newspaper, this has the effect of inducing them to come out.

My noble friend Lord Stow Hill, said that he did not think it right that in such a case the journalist should be liable for an unfair industrial practice. The noble and learned Lord the Lord Chancellor in replying did not deal with this example in any way at all. He did not say that any man who reports a speech like that which leads to a strike ought to be penalised in damages, or what is called"compensation ". You cannot bring an action for damages, but you can make a complaint the result of which is that you are awarded compensation. The terminology is entirely new; but it seems to come to the same thing and if the result were a strike tens of thousands of pounds might be involved. The noble and learned Lord did not say,"I think it is right that in those circumstances that man should be ruined for life ". He did not say,"Oh no, such a man would not be liable at all ", nor did he explain why. What he said was that he did not think the Press should be in a different position from the rest of us and any Amendment which dealt simply with the Press would not have his approval. He then proceeded to make a number of objections to the drafting of the clause.

It is in those circumstances that I have ventured to put down this Amendment to provide that: Nothing contained in this section shall render it an unfair industrial practice for any person to publish any matter upon an occasion privileged within the meaning of the Defamation Act 1952 as amended by any subsequent Act…". These, after all, are the occasions on which so far Parliament has thought that, so long as what is said is fair and accurate, there should be a measure of privilege. In order to meet the noble and learned Lord's point that it should not relate solely to the Press, it goes on: …or to publish, whether orally or in writing his honest opinion on a matter of public interest.

Later on the Marshalled List, my noble friend, Lord Stow Hill, has down Amendment No. 92. This is again dealing only with the Press, and I can save the time of the noble and learned Lord, the Lord Chancellor, by telling him that it is exactly the same as my noble friend's Amendment at Committee stage, except that he has carefully taken into account every objection to his draft made by the noble and learned Lord, and removed every one of them; so it is the same as it was except that it has not now got any of the objections with which the noble and learned Lord, the Lord Chancellor, answered. No doubt it might be convenient to discuss to some extent No. 92 at the same time. I do not know; that is a matter for your Lordships.

But there is here, I think, a real threat, not merely to the freedom of the Press but to the freedom of all of us to say what we think on a matter of public interest. The freedom which hitherto has been given by Parliament to the Press in circumstances in which it is not given to anybody else is not given to the Press for the purposes of the Press. Privilege in defamation is never given for the benefit of the defendant. Privilege is almost always what is called qualified privilege; that is, the right to say what you honestly think, without malice, on a particular kind of occasion. Some- times it is absolute privilege, which is a terrible power because absolute privilege means that even if you know that what you are saying is untrue, even if you say it maliciously and even if you damage other people, there can still be no action. We have—I think quite rightly—limited this privilege to two classes of people: Members of your Lordships' House and of the House of Commons for what they say in Parliament; and all those in our Law Courts, whether judges, lawyers or witnesses, for what they say in court. That is not for their benefit, but because we thought that in those two special cases it was so important in the public interest that people should be absolutely free to speak their minds without having to worry whether there could possibly be a libel action.

The qualified privilege which has been given to the Press provided that 'they do not act maliciously is not for their benefit but because it is to the advantage of all of us that we know what is going on. We should get fair and accurate reports of what is being said at public meetings and if there is controversy—even industrial controversy—we should know accurately what is being said on both sides. For that reason I submit that some protection is necessary here both for the Press and for ordinary people who are saying what they honestly think on a matter of public interest. I beg to move.

9.44 p.m.

BARONESS BIRK

My Lords, I should like to support the Amendment which has been so admirably moved by my noble and learned friend, Lord Gardiner. After the debate we had in Committee on the new clause moved by my noble friend, Lord Stow Hill, the noble and learned Lord, the Lord Chancellor, pointed out that the clause as then proposed really weakened the position of the journalist. Several comments were also made about the privilege of a journalist. As a journalist myself, I would point out that while there is a great deal to be said—and I think it is right in concept—against journalists' having a special privilege, nevertheless they must be more at risk by reason of their profession. The noble and learned Lord the Lord Chancellor said at Committee stage that the freedom of the Press to report events is the freedom of the man in the pub to talk about them; that it is not different in character and does not depend on a man's acting as a professional journalist. But, of course, the journalist is more at risk, first because it is his work, whether in television, broadcasting or writing; and, secondly, because he hopes, if lie is at all a successful journalist, to reach a rather larger audience than the people scattered about a pub, otherwise he probably would not last very long as a journalist. I have been reading carefully what the noble and learned Lord the Lord Chancellor said at the Committee stage, and have also discussed once again with the Secretary of the National Union of Journalists the feeling that there is still a risk in the Bill as it stands at the moment.

My noble and learned friend Lord Gardiner explained—and it needs no elaboration from me—the introduction of the unfair industrial practice which brings a new concept and again a new risk to freedom of speech. I think that an improvement has been made in the Bill, and I personally am grateful for the Government's acceptance of the word"knowingly"throughout the Bill before the word"induced ". Nevertheless, doubts still remain. Until the Bill, when it becomes an Act, has been working for some time we shall not know whether the law as it stands in the Bill at the moment can be used against journalists, or indeed, as my noble and learned friend Lord Gardiner says, against any person. We have at the moment a very distinguished ex-Lord Chancellor taking the view that there is a risk; we have the noble and learned Lord who sits on the Woolsack (unless he has had a change of mind) now taking a different view. I do not think it will be possible every time a journalist—in this case an industrial correspondent—is about to write an article to 'phone up the noble and learned Lord the Lord Chancellor, to ask,"Do you think I am at risk about this? ". Having read the noble and learned Lord's predecessor's paper on the work of the Lord Chancellor I should have thought he had enough to do without giving advice to journalists.

What I think is also a great source of worry is the effect this can have even though there may not be in fact any practical result. This is the aura of caution that it will spread, and this is something on which a great many responsible journalists who are industrial correspondents feel very strongly. The fact that there is this law, if the Bill is left as it is at the moment, in operation will inhibit editors, will encourage them to take a more cautious view, and one could get (which I think would be unfortunate) in the future a situation in this country where it is all right to"have a bash"at the unions or at strikers but quite wrong to criticise employers and to show up any faults which they may have. This would seem to me to be a dangerous development of what we like to feel is our freedom of speech in this country, and I think it is something that needs to be watched and, indeed, needs an Amendment in this Bill.

I personally should be quite prepared to accept either the Amendment moved by my noble and learned friend Lord Gardiner or a later Amendment, No. 92, which, with its alteration, is to be moved by my noble and learned friend Lord Stow Hill. Both deal with the same point but in a different way. The Amendment moved by my noble and learned friend Lord Gardiner is shorter and it also widens the concept because it includes"any person"rather than restricting it to journalists. Whether the last part of it, following the word"Act"in line 4, may be considered by some noble Lords as taking rather too wide a view, I do not know. If so, it may be possible to amend it again by shortening it. My noble friend Lord Stow Hill's Amendment, No. 92, seems to me now to have answered some of the criticisms of the noble and learned Lord who sits on the Woolsack. If I may say so, with great respect, as someone who is semiliterate legally, it seemed to me clear when he moved a similar Amendment at Committee stage that the onus was not put on the defendant, but now (and I think this must be one of the main points of the noble and learned Lord's opposition to the Amendment) this has been spelled out. Whatever is decided, I hope that noble Lords will recognise the anxiety felt about this particular matter. Something should be done in this Bill to allay that anxiety, and whether it is done by way of one Amendment or another, the main thing is that the situation should be clarified and the concern mitigated.

THE EARL OF BALFOUR

My Lords, may I ask a question here? Are not the protections which the noble and learned Lord, Lord Gardiner, is seeking in his Amendment covered by Clause 132? I thought that in this Clause the words, act…in contemplation or furtherance of an industrial dispute… gave the Press the protection they need. I do not quite understand this, and it is the reason for my question.

LORD GARDINER

No, my Lords. I think the noble and learned Lord the Lord Chancellor will agree with me that that clause does not afford any cover in respect of freedom of speech.

9.52 p.m.

THE LORD CHANCELLOR

My Lords, I do not propose to speak at all to Amendment No. 92, which has a number of built-in arguments of its own which are quite peculiar to it, and which we can deal with when we come to it. There is nothing more hopelessly boring than for two lawyers to start contradicting one another in public, nor anything more confusing to either House of Parliament. But some of the things the noble and learned Lord, Lord Gardiner, said were so inaccurate and so misleading—and they succeeded in misleading the noble Baroness, Lady Birk—that I must try to get rid of some of them.

In the first place, he said that this was a totally new thing coming on the law. With respect, this is approximately the opposite of the truth. Under the Common Law of England, inducing a breach of contract is a tort; it always has been rather more so than now, but it is a tort at Common Law. Under the Trade Disputes Act 1906. this was restricted by eliminating from the ambit of the tort contracts of employment if the inducement was in contemplation or furtherance of a trade dispute; but otherwise it was still a tort at Common Law, and it is now. The Government, in the course of this Bill, have decided to remove that tort. That is to say, the Bill does not impose a new liability; it removes an old one: and that (although I think my noble friend Lord Balfour misread the clause) is the purpose of Clause 132. The removal from the field of tort applies not merely to the old limitation, as it was enacted in 1906, to contracts of employ- ment. You cannot sue now for inducing a bearch of contract in furtherance of a trade dispute, whether it is a contract of employment or not, if the Bill goes through. That is the old law. It has been known from time immemorial; that is to say, since inducing a breach of contract was recognised as a separate tort. And in its limited form—that is to say, excluding contracts of employment in relation to acts done in contemplation or furtherance of a trade dispute—it remains the law until this Bill becomes law.

What this Bill does is to eliminate that from the field of tort, and to impose a liability of a much more restricted kind under Clause 96. It is limited to actions which are defined and restricted under Clause 96, and it is limited in the further way that when you come before the Industrial Court to complain you are not, as you were previously at law, entitled to your remedy as of right. You are entitled to your remedy only if you can establish to the satisfaction of the Court that it is just and equitable to get it. Thus what we have done is not to impose a new liability, as the noble and learned Lord led the noble Baroness erroneously to suppose, but to take away an old one and substitute a much more restricted one, which results in a discretionary remedy and not an automatic remedy. So let us get that absolutely plain at the beginning.

Secondly, contrary to what the noble and learned Lord, Lord Gardiner, said, I was at great pains to point out during the Committee stage that, whether or not it be true that journalists are in the law of libel peculiarly vulnerable to actions—which I think is manifestly the case—that is not true in relation to actions for inducing a breach of contract. Although actions for inducing a breach of contract are actions to which journalists and everybody else have been liable, and from the year dot, over the whole field, except the restricted one, since 1906, not one action could I find in which they had been subjected to the law, in contrast to the vast catalogue of actions which appear every year in cases of defamation. I presume that, had I been wrong or insufficient in my researches, one of the noble and learned Lords opposite would have been only too pleased to point out my error. So the evidence is that far from being particularly vulnerable to this kind of action, journalists are not more vulnerable than any ordinary human beings. In fact, they are not vulnerable at all.

BARONESS BIRK

My Lords, none of this was done within the context of the Industrial Relations Bill, and the sort of legislation that is now going through. This is a different situation.

THE LORD CHANCELLOR

My Lords, the noble Baroness is wholly misunderstanding the trend of my argument. Journalists have always been vulnerable to far more extensive actions for inducing a breach of contract, most of which we are removing except in this restricted sphere; but the fact is that they have never been sued. Not only is the case that they are particularly vulnerable to actions of this kind not made out at all, but the presumptive case against it is absolutely overwhelming. I am not going to deal any further with the specific position of journalists under this Amendment (although I shall have to refer to them again under Amendment No. 92 when it is moved) because this Amendment is not restricted to journalists. So far as I can make out, it applies by reference—and a more extraordinary proposal for legislation by reference I have seldom seen—the whole of the law of defamation in relation to qualified privilege and fair comment to everybody, whether journalists or not. That is the proposal which is solemnly put before the House. Why it should be thought that the particular defences, the logical criteria, which are available in an action of libel or slander should be particularly relevant to actions under this Bill before the Industrial Court for inducing a breach of contract, I am not able to understand.

The next thing which emerges from this particular Amendment is that, quite contrary to what the noble and learned Lord said in his opening speech, I was at particular pains to attack the underlying philosophy of an Amendment of this kind at its root. Once one has accepted that"inducing"means"knowingly induce "—which it always did, but which in order to avoid the smallest degree of doubt I have willingly had inserted in the Bill so that we now know it beyond peradventure—the whole of this kind of defence becomes superfluous because no fair and accurate report of what is said at a public meeting, whether it is by a journalist or a member of the public, is an inducement to breach of contract.

In order to achieve that result, we now know that it has to be done knowingly and with the intention to produce the result. No comment can be either and be a fair expression of opinion on a matter of public interest. If, on the other hand, it is established that what is done is done deliberately to induce a breach of contract, within any meaning for the purposes of defamation so far as it is applicable to this Bill or can be applied to this Bill at all clearly, the defence of fair comment"would disappear in smoke, because if one thing is certain about the defence of fair comment it is that it must be in good faith and without an oblique motive. There the oblique motive would be established by the complainant before the start. The point about this Amendment is that it is both unnecessary and objectionable, and I advise the House to reject it.

10.3 p.m.

LORD STOW HILL

My Lords, I do not wish to prolong the debate, but merely to comment on what has been said. Certainly I did not understand my noble and learned friend—

THE LORD CHANCELLOR

I hope the noble Lord will forgive me for a moment. I do not complain in the least, I am only pointing out that what he is about to do—that is to say, after the Government's reply to make another speech—is exactly what was complained of about my noble friend Lord Drumalbyn earlier in the afternoon.

LORD STOW HILL

Certainly I considered I was winding up the debate. That is what I thought I was expected to do, and if the House is prepared to listen I should very much like to address the House.

I did not understand my noble and learned friend to be saying anything other than that there was a new concept—namely, that of an unfair industrial practice—introduced by this Bill. He is not criticising it; he simply says it is a fact. With that new concept introduced a state of some uncertainty exists as to how the position of the journalist is left. I should have thought that that was obviously right. In my view, my noble friend Lady Birk put her finger upon a very important point, that we are anxious not to inhibit journalists from freely exercising their profession. It would be a great misfortune if uncertainty spread as to whether a journalist could be at risk if he were somewhat too outspoken and if, as a result, over the years editorial offices started issuing cautions and saying to their staff,"If you wish to bash strikers "—that was the noble Baroness's phrase—" go ahead; you are perfectly safe so long as you have regard to the law of libel. If, on the other hand, you feel in honour bound to support them, if you feel that they have a very strong case indeed and you cannot conscientiously, and having regard to your responsibility, write without expressing a strong opinion that they ought to do what their leaders say and strike, then you are on dangerous ground. Watch your step."

Now the difficulty in this sort of situation is that these results creep in insidiously. They do not creep in in six months; they creep in in a year. What happens is that after some time the matter is perhaps tested in the courts, and it may turn out that a particular journalist, because he has used rather extravagant language in perfectly good faith, and well within the bounds of what we accept as the normal limits of free speech in this country, has gone to the length of saying to them,"I think you ought to strike ". I do not want to go again through the elements of"inducing"and"knowingly inducing ": we have had them over and over again, and it would not assist your Lordships to rehearse them still once more. I have submitted to the House before, and I feel I must submit again, this case. Suppose you have a journalist who honestly thinks that they ought to strike and says so; who says so in editorial comment, who says so in no unmeasured terms and who may be absolutely right in saying so, who may be saying perfectly justly what they ought to do. It may be the case that he is knowingly inducing them to break their contract of employment, and that by so doing he renders himself liable under the Bill to pay what may be to him a perfectly crippling sum by way of compensation. I know that this is a new and discretionary jurisdiction, but the courts must administer it as they find it formu- lated in the text of the Bill. That is what my noble and learned friend was saying, I thought so cogently, in moving his Amendment.

I hope that the Government, even at this late stage, will realise that here at least there is a danger; and if there is a danger I would have thought the logical result would be that someone should do something to try to provide a special protection for the journalist. I have had another try, as my noble and learned friend has said, in the Amendment which I have put down, to take account of the criticisms that were made; but whether it will be useful to take up your Lordships' time by moving that Amendment when its turn comes I very much doubt in view of what has been said. However, I do ask your Lordships to give further thought to this attempt by my noble and learned friend to which I have added my name.

I should like to say this to the Government. One criticism which the noble and learned Lord the Lord Chancellor made was that this Amendment went too far, and I think he was referring to the words …or to publish, whether orally or in writing his honest opinion on a matter of public interest. The gravamen of the argument is that we should protect journalists, and, if I may say so with respect, it is a point that the particular words I have just cited give protection to people who cannot claim to be journalists or to be writing as such. I would simply ask the Government to consider between now and Third Reading whether, unless they think that really this risk is wholly elusive, which I do not, they could not accept the Amendment leaving out those last words. In other words, could they not accept that the privilege which is available to a journalist in terms of the 1952 Act should be made expressly available to him so as to protect him from any risk under Clause 96 of the Bill?

I want to say just one other thing. Some years back members of the Bar discovered, much to their dismay, that they might be held liable in negligence for the work that they did as barristers. So far as I know, no action has been brought against barristers for a century; and I would submit that it is not really conclusive at all to say that actions have not been brought against journalists. Things were different in the last century. People's ideas were quite different. Legislation dealing with industrial action had not got very far. It did not get to a key point until 1906, when one had the Trade Disputes Act. I would submit that the mere fact that there were no actions in very different circumstances, when thinking and social conditions were utterly different from what they are to-day, is not really a reliable indication that journalists are safe. That is what I should like to say in reply, and I hope the House will take it. I do not know whether my noble and learned friend wishes to add anything. I hope, therefore, that the Government, if they feel they cannot accept the whole Amendment, will accept at any rate that part of it which incorporates the relevant provisions of the 1952 Defamation Act.

10.10 p.m.

LORD GARDINER

My Lords, we shall have an opportunity to consider this matter again when discussing Amendment No. 92. I do not therefore wish to take up further time, but as a matter of courtesy—no: I need not trouble the House; I was going to make a further reply to the noble Earl, Lord Balfour, but I see that he is not in the Chamber.

I am naturally disappointed. My Amendment is not limited to journalists. Perhaps for the Record I should refer to the point made by the noble Earl, Lord Balfour, that we are all protected by Clause 132, and point out that is not so, because that deals with a tort. We all understand the position about torts. That is now removed. That will be further made plain by Amendment 91H, a Government Amendment: The Industrial Court shall not have any jurisdiction except that…expressly conferred on it by or under this Act; and accordingly that Court…shall not entertain any proceedings in tort… So we are not dealing with tort at all. We are not dealing with inducing a breach of contract as such; we are not dealing with a breach of contract. We are dealing solely with this new thing, an unfair industrial practice, on which a complaint can be made and on which a court can make, not an injunction, we are told, but an order in the nature of an injunction, and award not damages but compensation.

It is different from the old tort of inducement of breach of contract because there you always had the defence of justification. If in all the circumstances the court thought you were justified in doing what you had done you were not liable. That defence has been taken away in relation to this new unfair industrial practice. My Lords, I am disappointed. It is a matter, I should have thought, of serious consideration whether there should not be occasions on which, not in the interests of an individual but in the public interest, there should be a measure of protection, particularly for people who are doing no more than honestly saying what they think on an important matter of public interest, even though perhaps, because that person is in a particularly influential position, or is writing in a local newspaper with a wide circulation, it has the effect of leading to men saying,"I really cannot put up with these working conditions any longer." Having settled that, my Lords, I beg leave to withdrawn the Amendment.

Amendment, by leave, withdrawn.

Clause 97 [Industrial action in support of unfair industrial practice]:

THE LORD CHANCELLOR

My Lords, this is one of the sequences that I explained fully and that we discussed fully before. I beg to move Amendment No. 81A.

Amendment moved— Page 73, line 40, at beginning insert (" Subject to subsection (3) of this section ".)—(The Lord Chancellor.)

On Question, Amendment agreed to.

THE LORD CHANCELLOR

My Lords, this Amendment is the next in the same series. I beg to move Amendment No. 81B.

Amendment moved— Page 74, leave out lines I to 3 and insert (" further any action which has been taken, whether by him or by any other person, and which, in accordance with any provision of this Act, constituted an unfair industrial practice ").—(The Lord Chancellor.)

On Question, Amendment agreed to.

LORD DIAMOND moved Amendment 81D. Page 74, line 5, leave out (" procuring or financing ") and insert (" or procuring ").

The noble Lord said: This Amendment occurs in the clause dealing with industrial action in support of unfair industrial practice, the first subsection of which states that It shall be an unfair industrial practice for any person…to take any of the steps specified in the next following subsection,". The next following subsection states The steps referred to in the preceding subsection are—

1. (a) calling, organising, procuring or financing a strike."

The Amendment proposes those four steps should be reduced to three; namely, calling, organising or procuring a strike. We are told by the Government—and we accept it—that a mere contribution to a strike does not constitute an unfair industrial practice.

I do not wish to be unfair with the"sub-committee"going on on the Front Bench opposite, but this House is so ill-equipped for that kind of thing. There is over-close proximity, and I do not want to overhear, by mistake, what the noble Lord is saying. As I was saying, it has been established that contributing to the funds of a strike is not an unfair industrial practice. But it is an unfair industrial practice for a person to pass the hat round for that purpose. This is carrying the matter too far. It is objectionable that pressure of this kind should be used in order to prevent a strike taking place. One offers no comment on the strike itself; the mere act of passing the hat round is itself an unfair industrial practice and one wants if possible to have that removed. I dwell upon this matter also because each of this series of steps, calling, organising, procuring, financing, constitutes an unfair industrial practice. If this Amendment were accepted one of those would be eliminated. The act of calling would still be an offence of this kind whatever kind it is. Organising would be one; procuring would be one.

It is because of this that I refer to the total number of these new offences created by this Bill. They were first calculated by the noble and learned Lord, Lord Donovan, who said there were at least 179. I have always accepted his calculation. I like to get figures right in anything I say; if my figures are wrong I offer my apologies to the House. The figure is wrong and I offer my apologies to the House. The figure is not 179, it is 218. A list has been prepared and is available for checking by noble Lords opposite. This Bill introduces 218 different steps, each one of which constitutes an unfair industrial practice. It is not for me to say whether or not that is a tort. It is a new offence and that is apparently what the Government mean by their legal framework for industrial relations. There are 218 steps, each one of which constitutes an unfair industrial practice. It is one too many, and therefore I seek to persuade your Lordships to accept this Amendment which would reduce it to 217. I beg to move.

10.20 p.m.

THE LORD CHANCELLOR

My Lords, I must ask the pardon of the House if on this Amendment I show myself slightly more incoherent than I normally like to be. The reason is that I was given this block of Amendments to deal with but this particular one was marked as having been dealt with under Clause 65 and no additional information was vouchsafed to me; and so I have had rather rapidly to procure the former brief which was supplied to my noble friend. I will not go into the, to my mind, absurd enumeration of possible unfair industrial practices in which the noble Lord has just indulged. It is achieved by an extreme form of pedantry which bears no relation to reality. Let me give an example. If a strike is called by a strike leader for one unfair industrial practice—let us say, to compel somebody to join the union to which he does not belong—that is one unfair industrial practice and that set of circumstances will constitute only one, however often it is redefined.

Quite obviously, when one is putting in a Bill the various steps which will constitute the instigation of a strike one will put in"procure ", one will put in"organise ", one will put in—which this Amendment seeks to take out"finance "; but it does not make three different sets of actions in relation to concrete circumstances. Only the most pedantic lawyer, familiar with the oldest and most obsolete forms of enumerating the counts in an indictment, could possibly start seriously to enumerate things in that way. When I gave, in a much earlier state of this Bill—so long ago that I am an older and a wiser man—the figure of 25 as being about right, I gave what was much more like the reality of the case. The difference is based on a difference of enumeration; it is based on the fact that my figure is a realistic one while the other is a fanciful one which could have been invented only by a follower of the Mediaeval School and the counting of angels on the point of an imaginary needle.

It might help if I were to start by explaining the reasons why financing industrial action imposes a liability upon those responsible. Liability for the unfair industrial practices which are enumerated is imposed on those responsible for initiating and furthering industrial action in the circumstances with which the various clauses deal. Instituting, calling, organising or procuring industrial action are various ways of describing the means of getting it under way. On the other hand, financing industrial action once it has started is a means of ensuring that, for instance, the strike is effectively maintained and carried on. In practice, of course, some or all of these activities may, as I have already pointed out, be interrelated in point of time, and it is not possible to say whether or not one follows the other. The point is that, although each can be described as a separate activity, they are all directed to the same end: ensuring the effectiveness of the action in question.

Therefore it follows that where the promoter of industrial action is made liable under the Bill for proceedings before the Industrial Court, the person or organisation responsible incurs that liability whether he or it takes one or more of the promotional actions or whether they do so at the same or different periods of time. Thus, for instance, a trade union which supports a strike by paying out strike pay is just as much responsible for the strike as the person who called it or organised it.

Similarly, an employer who gives direct financial help to another employer to enable that other to institute and carry on a lockout is responsible for financing the lockout. At the Committee stage, doubts were expressed about the meaning of finance"in relation to the what are now Clauses 97 and 139. My noble friend undertook at that stage to write to the noble Lord, Lord Diamond, about the points raised. I understand that my noble friend has carried out this undertaking. But from what I have said I hope it will he clear that the interpretation of the word"finance"in the context of these clauses, and in others where the same principle applies, cannot extend to cover anyone who is merely a source of funds or is participating in the supply of funds, whether or not he knows for what purpose they will be used. The person or organisation responsible for financing is the one who makes use of the funds to finance industrial action. He alone will be liable, if such action is liable, to proceedings before the Industrial Court as an unfair industrial practice or in respect of contravention of an emergency restraint order. In his letter to Lord Diamond, my noble friend gave two reasons why the National Insurance Act which was mentioned at the Committee stage was not a relevant precedent in respect to the interpretation of"financing ". In the first place, that Act is concerned with assessing the rights of an individual employee to unemployment benefit where there is a strike at his place of work arising from a trade dispute in which he is assumed to have an interest. Secondly, it relates to the involvement of the individual employee in the trade dispute causing the stoppage of work, whereas this Bill is concerned only with those responsible for promoting the industrial action.

In the context of the Government Amendment to Clause 65(7), which I think has been passed, there are additional reasons for resisting the Amendments to delete"finance ". Clause 55(7) as amended will in part prohibit an organisation of workers from disciplining any of its members who refuse or fail to take part in a strike or other irregular industrial action that has been called otherwise than in support of an industrial dispute or the inducement which constituted an unfair industrial practice. The Amendments would have the effect of enabling an organisation to take such disciplinary action against members, provided that it had merely been given financial support for the strike without actually organising or procuring it. For example, a group of its members might unofficially cause a strike for purely political motives for which the organisation gave tacit support by subsequently granting strike pay to the participants. In this situation, the organisation will not be precluded from disciplining members who chose to ignore the strike call, but such an anomalous situation is clearly undesirable since it would encourage unofficial action as a way of getting round the restriction.

I hope your Lordships will therefore agree that there are sound reasons for asserting that those who finance industrial action must bear responsibility for the effects of that action. I have also tried to show that in the context of the relevant clauses, the word"financing"cannot be interpreted to include those who are not themselves responsible for initiating or furthering the action in question. I would ask the House not to accept this Amendment.

10.29 p.m.

LORD DELACOURT-SMITH

My Lords, I do not wish to detain the House for long; but it seems to me that some indication should be given of what seems to me to be the effect of the inclusion of these words in the Bill in the light of the explanation contained in the letter which Lord Drumalbyn so courteously sent to my noble friend (and of which he was good enough to give me a sight) and in view of the explanation of the noble and learned Lord who sits on the Woolsack. If I understand the position aright, we may well have the situation after the passage of the Bill, in which (shall we say for the purposes of the argument?) an unregistered organisation of workers embarks upon a dispute and other groups of workers—in the same trade union, the same organisation or possibly in other organisations or in registered trade unions—arrange collections for the assistance of those who have withdrawn their labour. That would be, as I understand it, an unfair industrial practice. It would be the case even if the collections were organised—as indeed such collections are organised—primarily for the humanitarian purpose of minimising the family suffering to which the strike gives rise. We have been told—and indeed it is not surprising because it was put fairly clearly in the Bill—that those who organise such assistance to fellow workers can themselves be regarded as guilty of unfair industrial action and proceedings can be initiated against them. This seems to be an extraordinary situation to find in a Bill which is supposed to be dealing with the amelioration of industrial relations. I should have thought that such a development, if I have correctly understood it, far from ameliorating industrial relations would do much to embitter them.

LORD DIAMOND

My Lords, I do not wish to detain your Lordships unduly at this hour of the night, but what my noble friend, Lord Delacourt-Smith, has said echoes my own views on the matter. I can only repeat that I think it is objectionable in the extreme to include passing the hat round as"an unfair industrial practice ". It means, as my noble friend has said, that the rest of the argument cannot take place except under duress and hardship of one kind or another.

I must return for one moment to the 218 steps. From what the noble and learned Lord who sits on the Woolsack has said, there is no doubt that if we remove this further offence by accepting the Amendment then the number of steps would be reduced by one. There would still be all these others. It makes it perfectly clear that we are right in what we say—not pedantic, not counting angels but just counting the steps created by the Government as creating offences. It is too late to pursue the matter unduly and we still have an enormous Marshalled List in front of us, so I shall not seek to take up time by dividing your Lordships' House. We are totally unsatisfied with the position, but all I can do in the circumstances is to seek permission to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR moved Amendment No. 81C:

Page 74, line 9, at end insert— (" (3) Any steps taken or threatened to be taken by a trade union or an employers' association for the purpose of furthering any action which—

1. (a)has been taken by one or more officials or members of the trade union or employers' association; and
2. (b)constituted an unfair industrial practice by virtue only of section 96 of this Act,

shall not be an unfair industrial practice by virtue of this section.")

The noble and learned Lord said: My Lords, I beg to move this Amendment. This is the last of the series which I explained some time ago on Clauses 96 and 97, and is in fact the one I have described which makes it plain that a union which endorses officially an unofficial action does not thereby become liable.

On Question, Amendment agreed to.

Clause 98 [Industrial action against extraneous parties]:

LORD GARDINER

My Lords, I beg to move Amendment No. 82:

Amendment moved— Page 74, line 19, after (" is,") insert (" knowingly ").—(Lord Gardiner.)

On Question, Amendment agreed to.

10.35 p.m.

LORD DELACOURT-SMITH moved Amendment No. 82F: Page 74, line 20 leave out (" or to prevent him from performing it ")

The noble Lord said: My Lords, I beg to move this Amendment. At an earlier stage we indicated our general views on Clause 98, and a short while ago I referred to what appears to us to be the inequity of this group of clauses and the way in which the balance is tilted in the direction of the employer and against the employee. In those circumstances, and at this stage of the Bill, it can be our main objective only to try to remove from Clause 98 some of those phrases which make it as wide as it is. The purpose of this Amendment, therefore, is to limit somewhat the effect of subsection (I) (b). I think its effect is clear enough from the wording. I beg to move.

THE LORD CHANCELLOR

My Lords, Clause 98 has a different purpose from Clause 96 or Clause 97. Clause 96 attacks inducing a breach of contract, subject to the limitations of that clause; Clause 97 renders unfair actions done in furtherance of actions which are already unfair industrial practices; but Clause 98 renders unfair as an industrial practice any specified steps taken in contemplation or furtherance of an industrial dispute against an extraneous party to the dispute—that is, a person who has no direct interest in the dispute. The conditions for the application of the clause are set out in paragraphs (a), (b) and (c), and this Amendment to line 20 is to omit part of paragraph (b), which says: his purpose or principal purpose in taking or threatening to take those steps is to induce that other person to break that contract or to prevent him from performing it;… The reason why we have these words in Clause 98 and not in Clause 96 or Clause 132 is explained by the different purpose of Clause 98, which is designed to protect extraneous parties. We think that it should be maintained in the clause, because it provides more protection in respect of inducement of breach of commercial contract in contemplation or in furtherance of an industrial dispute than the law as it now stands. For this reason we cannot accept the Amendment, which would destroy the balance of Clause 98 that we have set out to create.

Apart from that, there is a sound reason for making interference in a contract, by preventing its performance, an unfair industrial practice under this clause. There are contracts, many of a long-term nature, whose execution can be stopped completely at a given point in time without, technically, any breach having occurred. However, the loss to the parties to the contract can be just as great as if the contract had actually been breached. Since we have given specific protection to this type of damaging interference in Clause 132 and have not made it an unfair industrial practice under Clause 96, we would indeed be remiss under this clause if, in seeking to protect innocent third parties against industrial action directed against their commercial contracts, we were to exclude a deliberate act of interference which prevented the execution of the contract merely on the ground that no breach had actually resulted from that act. I would therefore ask your Lordships to reject the Amendment.

LORD DELA COURT-SMITH

My Lords, I feel that my noble friends and I cannot withdraw this Amendment, but we do not propose to divide the House upon it. I think it is quite clear from the speech that has been made by the noble and learned Lord that the observations I made earlier upon the general effect and balance of these clauses were quite justified.

On Question, Amendment negatived.

LORD DELACOURT-SMITH moved Amendment No. 82H: Page 74, line 27, leave out from"not"to"taken"in line 28.

The noble Lord said: My Lords, I beg to move Amendment No. 82H. It is consistent with the view which I expressed on the earlier Amendment that we on this side of the House regard the definition of"extraneous party"given in this clause as an excessively wide one. In particular, it is hard to see the justification for the particular phrase which the Amendment seeks to delete from the Bill. In the circumstances in which this paragraph would have application, there would be a dispute between a trade union and an employer. It would be a dispute in which each side would be using such resources as were available to it, and in which each side would no doubt be anxious to maximise the support which it could receive from other parties.

Subsection 2(b) deals with the situation of a person who has taken action in material support of a party to the dispute. It does not seem to us to matter whether that action has been taken in contemplation or furtherance of the trade dispute or not. The action, by definition, with which we are concerned is action which is in material support of a party to the dispute. In those circumstances, it would seem to us quite logical and proper to omit these words which the Amendment seeks to delete. The material question before us surely is whether in fact action which is taken by another party does or does not support a party to the dispute. It is not the motives of the individual who takes the action but whether indeed his action does or does not bring support to a party in dispute. For it to be said that for an individual whose action does give such material support to a party, to be an extraneous party merely because he has not taken the action which objectively is a factor in the situation, specifically in contemplation or furtherance of that dispute, is quite illogical and unreasonable and we would ask your Lordships to delete these words. I beg to move.

THE LORD CHANCELLOR

My Lords, this is a new Amendment, being a starred one, and I am a little surprised to see it put down on the Marshalled List. The subsection with which the Amendment deals is subsection (2). Clause 98, as I explained in relation to the last Amendment, renders it an unfair industrial practice to take action of the specified kind against parties who are not parties to the industrial dispute, referred to in the side note as"extraneous parties "—innocent third parties. For the purposes of that subsection a person is regarded as an extraneous party or innocent third party in relation to an industrial dispute if he is not a party to that dispute and he has not taken, in contemplation or furtherance of the dispute, any action in material support of the parties to it.

The noble Lord solemnly proposes to leave out the words"in contemplation or furtherance of that dispute ". The effect of that would be that anybody who at any time had given material support to a party who happened to be a party to the dispute would not be regarded as extraneous; and it would involve all those who had commercial contracts, or who perhaps at some time had lent money to a party to the dispute even though they had no bearing on the dispute at all, to be hit out at blindly, and if it were passed the Amendment would be a licence to hit out blindly against absolutely innocent third parties.

Anyone who, by means of a normal commercial contract to supply goods or services, has taken action materially to support the activities of an employer—or, I suppose, a trade unionist—who is a party to an industrial dispute, might be regarded as involving himself, even though the contract has no bearing whatever on the industrial dispute in question. A customer of the party in dispute, who has undertaken to receive goods from that party, might be regarded as being involved in the dispute and so legitimately liable to industrial action, even though the contract has nothing to do with the dispute and he has no interest one way or another. I suppose it could mean that any person who had given financial assistance to a party to a dispute could also be regarded as being involved when, quite obviously, that kind of assistance might have no bearing at all on the dispute in question. That is what the noble Lord has proposed, and I do not advise the House to accept the Amendment.

LORD DELACOURT-SMITH

My Lords, we are of course dealing with situations, as I sought to describe, in which an industrial dispute is taking place. I think it is a travesty of the facts to suggest that in such a situation it is the custom of trade unions to strike out quite wildly and indiscriminately. It has been their custom in certain sets of circumstances, either through their own trade union or, in some cases, through the action of friendly trade unions, to take action against parties other than those who are direct parties to the dispute.

What this Bill seeks to do in this particular section is to circumscribe the freedom of action in such situations as narrowly as possible. I am bound to say that I believe the form of words which we have before us does circumscribe trade union activity quite unreasonably in this way, and I would still urge your Lordships to delete the words which are specified in the Amendment. However, again I recognise that this is not a matter on which it is profitable in the light of our time-table to divide the House. Although I do not feel able to withdraw the Amendment, I shall not divide the House upon it.

On Question, Amendment negatived.

10.50 p.m.

THE LORD CHANCELLOR moved Amendment No. 82A: Page 74, line 31, after (" section ") insert (" as a party to an industrial dispute or ").

The noble and learned Lord said: My Lords, the purpose of this Amendment is to ensure that an employer who is an associated employer in relation to a party to a dispute, or who is a member of the same organisation of employers, or who contributes to an indemnity fund, shall not for those reasons alone be considered to be either a party to a dispute or to be materially supporting a party to a dispute.

Your Lordships will by now bear in mind that the purpose of Clause 98 is to make unfair the calling of industrial action against someone not in any way involved in the dispute with the purpose of interfering in a commercial contract between him and a party to the dispute. Subsection (2), which we have already discussed in connection with an earlier Amendment, makes it clear that to qualify to be considered as an"extraneous party ", the person concerned must not participate in the dispute either as a party to it or by giving material support to one of the parties in contemplation of it.

During the Committee stage an assurance was given on behalf of the Government that the mere fact of association between two companies does not necessarily mean that each of them must automatically be regarded as participating in a dispute to which the other is a party. Similarly, the mere general contribution to an indemnity fund not related to a specific dispute should not imply interference in a dispute merely on the ground that at some point in time someone who is a party to a dispute can take advantage of the fund.

The three conditions set out in subsection (3) as now drafted do not for that reason alone imply that material support is being given to a party to a dispute. It was thought reasonably self-evident, for reasons that I have given, that none of these conditions could raise any presumption that someone was participating in a dispute, as a party to it, unless the facts showed this to be so. For instance, a member of a large employers' association would not be presumed to be a party to a local dispute—perhaps on some matter of internal policy—involving another member in a different part of the country. Or, to take another example, a member of a large conglomerate organisation would not be presumed to be a party to a dispute affecting another member in a different industry, perhaps in another part of the country, when the dispute did not concern his industry or his company.

All that the Amendment does is to make this clear. It sets out that an associated employer, a member of the same employers' organisation, or an employer who makes a contribution to a general indemnity fund, shall not for that reason alone be unable to claim the status of an"extraneous party"to a dispute, that is someone who is not actually involved in the dispute nor is materially supporting one of the parties to it. Obviously, if a person is participating in the dispute in either of these ways subsection (3) will not protect him, and it will be perfectly legitimate for a union (or for that matter anyone else) to organise a strike against him for the purposes set out in subsection (1). I hope that this Amendment clarifies the Bill without really altering its sense, and for that reason I beg to move.

LORD DELACOURT-SMITH

My Lords, as I have explained on earlier Amendments, my noble friends and I regard the terms of this clause, and particularly those of subsections (2) and (3), as too wide. In those circumstances we can hardly welcome any Amendment, however modest, which can have no effect but to widen them still further. In those circumstances I am afraid we cannot on this side give a welcome to this Amendment.

On Question, Amendment agreed to.

10.56 p.m.

LORD DELACOURT-SMITH moved Amendment No. 82C: Page 74, line 33, leave out paragraph (a).

The noble Lord said: My Lords, although in the interests of saving the time of your Lordships' House I have abstained from moving a number of Amendments which we had on the Marshalled List bearing upon this clause, I feel that Amendment No. 82C is one upon which I should state the case to your Lordships. If we turn to the definition of associated companies in the definition clause, which has now reached the number of 163, we find that in subsection (6) of that clause on page 125, it says: For the purposes of this Act any two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control; and in this Act associated employer' shall be construed accordingly. We are dealing here with a situation in which an industrial dispute has arisen with an employer who has associations as close as this definition indicates with other companies. It is a most reasonable expectation that with companies so intimately associated assistance of various kinds will be made available in various ways to the employer who is the direct party to the industrial dispute. It may not be easy for any outsider to establish precisely what steps are being taken within this close association of companies to bring assistance to the employer who is directly involved in the dispute; but it would hardly be surprising if trade unions made an assumption, or if trade unions, upon some evidence which appeared to them to be sound, took the view that this close association between the companies concerned was leading to some assistance being given to the employer who was directly involved in the dispute. It appears to us to be almost an academic step to seek to suggest that an associated employer is entitled to be regarded as a person extraneous to the dispute and as not having taken any action in material support of the employer who is party to it. In those circumstances we believe it would be reasonable to omit this paragraph from the subsection. I beg to move.

THE LORD CHANCELLOR

My Lords, we have threshed this out so thoroughly on Committee—and to some extent I did anticipate a little the merits of this proposed Amendment when I was proposing my own clarificatory Amendment a few moments ago—that I almost hesitate to say anything by way of amplification; but I must just summarise our reasons against it because it is in fact a complete reversal of the presumption that we are seeking to make in this paragraph (a), the association of employers, for the purposes of this clause. Clause 98 makes unfair industrial actions against parties who are extraneous to the dispute. That, I am afraid, I have said too often, but it is a basic conception in approaching any of the Amendments on this clause. Subsection (1) gives the conditions in which the subsection bites; subsection (2) gives the definition of"extraneous party "; subsection (3) is for the purpose of establishing that three classes of person do not in fact, by reason only of belonging to that class, become parties to the dispute, and the first class is that of an associated employer.

The Amendment seeks to overcome this presumption in relation to the associated employer, and to say that, notwithstanding that the associated employer is working in perhaps quite a different industry, notwithstanding that he is working in quite a different part of the country, he must, by that fact alone, be regarded as a party to any industrial dispute in which that employer became involved even though he had no connection with the dispute in question. That is the proposition to which we are asked to subscribe as"almost academic "—I think those were the noble Lord's words. We regard it as not only not academic but singularly perverse to make that the case, if, as I suppose, this Amendment is to be read with the new subsection (4) which is to be proposed later in amendment 82E—which I think is a legitimate assumption. I have repeatedly made it plain that if an associated employer does take action of the kind specified in subsection (2)(b) of the clause he is not protected by this subsection. On the contrary, he will then be involving himself in the dispute and thereafter any union will be entitled to take action against him of the kind which would otherwise be prohibited. So long as he does not involve himself in the dispute, we regard it as perverse to say that he is to be regarded as being involved, when in fact he is not, by reason solely of the fact that he is an associated employer within the meaning of the Bill, and for that reason, which I have explained more than once, I would press the House not to accept this Amendment.

On Question, Amendment negatived.

11.5 p.m.

LORD DELACOURT-SMITH moved Amendment No. 82D: Page 74, line 37, after (" contributed ") insert (" but has ceased to contribute ")

The noble Lord said: My Lords, I beg to move Amendment No. 82D. I hope that this may reasonably be regarded as an Amendment to clarify the present purpose of subsection (3)(c). Subsection (3)(c) states that a person shall not be regarded as having given material support to a party to a dispute merely by reason of the fact that he has contrbuted to a fund which may be available to such a party by way of relief. As at present drafted, the Bill does not say,"is contributing to a fund ", it says"has contributed to a fund ". We are therefore perhaps entitled to assume that this means that this is an act which has taken place and has been completed in the past. But there is, of course, an element of ambiguity here in the phraseology as it stands at present in subsection (3(c). Our Amendment seeks to clarify this by insisting that for a person to have the benefit of the exclusion which (3)(c) confers upon him from being regarded as in any way a party to a dispute, it should be clear that his contribution to the fund in question has ceased and that he is no longer contributing to the fund, that he is not engaged, for example, in some arrangement for periodic payments to the fund. I hope that your Lordships' House will feel able to accept this as a necessary clarification of subsection (3)(c). I beg to move.

THE LORD CHANCELLOR

My Lords, I am afraid that again this is not entirely an unploughed field. The seed I am about to scatter upon it has been scattered before, although apparently it has failed to germinate in the minds of the Opposition Front Bench; but I will not weary in well doing. This Amendment raises an issue which we discussed at some length at the Committee stage. For our part, we cannot accept that a person who has contributed in the past to an indemnity fund, which had no bearing upon a current dispute at the time when he made the contribution, should create any presumption that the contributor must, by that reason alone, be involved in a dispute to which some other contributor to the same fund is a party; and this must apply, in our belief, whether or not any further general contributions into the fund will be made.

The question of retrospective funding does not affect the merits of the case. I cannot imagine that there could be any need to give specific protection to somebody who at the time of the dispute is not even contributing to the fund which might be used to help an employer who is, or has been, involved. The question arises only in relation to payments which have been made at some time into a fund which was established without reference to a particular dispute, and we think that such contribution ought not, for that reason alone, to involve the contributor in any dispute for which the fund might thereafter be applied. I should have thought that this was fairly plain sailing. After all, the contributor cannot know at the time of the payment how the fund will be applied, or if it is applied at all. Nor can he get his money back if it is used in relation to a particular dispute in which he is not involved, and of which he may easily disapprove. He is in the same position in relation to the dispute as a member of a union who has paid a general contribution to a strike fund.

It is important to make it absolutely plain that the subsection does not protect a person who contributes to a fund raised specifically for the purposes of a particular dispute, and in that situation it will not even be necessary to know that he knows about the purposes of the fund, nor to establish that he is not an extraneous party. It is also important, in my respectful submission to the House, not to be led away entirely by the airy remarks from the Opposition Front Bench, suggesting that people do not hit out blindly in these cases. There are at least two reported cases in the last ten years—Stratford v. Lindley and Torquay Hotels v. Cousins—where the most blind hitting out took place. We are not talking about academic possibilities; we are talking about actualities. The fact that the noble Lord wants to omit the protection given to contributors to a general indemnity fund, when the contributors cannot affect the outcome of the particular dispute and have parted with their money before they knew what the dispute was about, indicates that what we are talking about is not an academic possibility but a reality. For the reasons I have given, I fear more than once now, I must ask the House to reject the Amendment.

LORD DELACOURT-SMITH

My Lords, I am afraid that my noble friends and I are hardly likely to find that reply a very convincing one. As the noble and learned Lord has said, this is not the first occasion on which we have traversed this ground and I am sorry that the seed which he has sown so lavishly has on some occasions fallen on such stony ground. I think that this is an unworthy subsection. It clearly opens the way to a group of employers who have a fund for mutual self-defence. It may indeed be a fund deliberately launched in contemplation of a series of disputes with the trade unions, although when the employers launch the fund and make their contributions to it they cannot say precisely which employer will be involved at any time or what the issue of the dispute may be. But this subsection allows the employers who have established such a fund to be regarded, when the dispute actually arises, as parties extraneous to it. I think that is stretching common sense a little far. I think individuals should show that they have ceased to contribute to a fund and are not merely in the process of making their periodical contributions, as they could be if I read this subsection aright. Surely our Amendment, to ensure that they should show that they have ceased to contribute before they can he regarded as extraneous parties, is reasonable, and I am sorry that it does not commend itself to the Government.

On Question, Amendment negatived.

THE LORD CHANCELLOR moved Amendment No. 82B:

Page 74, line 42, at end insert (" or (d)supplies goods to, or provides services for, a party to the industrial dispute in pursuance of a contract entered into before the industrial dispute began, or is a party to such a contract under which he is or may be required to supply goods to, or provide services for, a party to the industrial dispute.")

The noble and learned Lord said: My Lords, this Amendment seeks to introduce into subsection (3), which we have been discussing, a new paragraph, (d). The intention of the Amendment is to make it plain that a person who has entered into a contract to supply goods or provide services, or who may be required to do so with another person who afterwards becomes a party to a dispute, shall not be regarded for that' reason alone as a party or as giving material support to the party, provided the contract was entered into before the dispute began. There has been continual and considerable discussion about the circumstances in which the actual performance of a commercial contract might be regarded as participation in the dispute. The Amendment seeks to clarify the position while maintaining a fair balance between the right of parties to the dispute involving secondary industrial action. Broadly speaking, its effect is that it will be unfair for a union to organise strike action against a contractor for the purpose of interfering with a contract made by him with the party to the industrial dispute before the dispute began, unless that contractor is involved in the dispute as a party or has been giving material support to the party otherwise than by the existence of the contract. Conversely, it will be legitimate for a union to organise action against a contractor who has entered into a contract with a party to the dispute after the dispute began unless the contractor can show that he is not in any way participating in the dispute.

We think this is a fairer balance as between the various interests than exists at present. There is at present no protection at all under the Act of 1906 against liability in tort for inducing a breach of contract other than a contract of employment, whether or not the action was done in contemplation or furtherance of a trade dispute. There have been a number of cases in recent years involving what might be called secondary activities by unions; there have been a number of injunctions or awards for damages against them. The point is that the answer to the unfair industrial practice in Clause 98, that the person induced to break the commercial contract was giving support to the party to the industrial dispute, would not be available as such to the respondents at common law, apart from this section. Therefore, we think it is reasonable to make it clear that the protection should not be available under the clause merely by reason of the fact that a contractor has entered into a contract with a party to the dispute before the dispute began. It will still be open to a union to show that, apart from that fact, he is indeed interfering in the dispute, and for that reason strike action against his contract is legitimate. In these circumstances, I beg to move.

LORD DELACOURT-SMITH

As I have said on earlier Amendments, I am conscious of the hour, and it would not be appropriate for me to speak at any length upon this Amendment. My noble friends and I have addressed ourselves to this question and we have put down a later Amendment, No. 82J, which in our view is a more reasonable way of dealing with this problem. In those circumstances although we cannot accept the terms of the Amendment which the noble and learned Lord, the Lord Chancellor, has proposed, I am not going to discuss it at length, nor to divide the House upon it.

On Question, Amendment agreed to.

11.20 p.m.

LORD STOW HILL moved Amendment No. 82J:

Page 74, line 42, at end insert— (" (4) A person shall be regarded as having taken action in material support of a party to an industrial dispute if such person enters or has entered into any arrangements with such party for the transfer to such person of the production or supply or any goods or the provision of any services theretofore produced or provided by such party, unless it is shown that such arrangements are or were made, as the case may be, on purely commercial considerations and independently of the existence of such industrial dispute and not with the intention of assisting such party in any way in relation to such industrial dispute.")

The noble Lord said: My Lords, I beg shortly to move this Amendment. It follows a path similar to that followed on the occasion of the last Amendment. It is, again, an attempt to give precision with regard to a person who is not involved in a dispute. It envisages the situation in which strike action has been taken against a particular company and then it is ascertained that another company, a second company, has had transferred to it the production of services or goods theretofore produced by the first company. It is of course difficult for the union to ascertain in a situation of that sort whether the transfer of the production of goods or services is undertaken by the second company in order to assist the first company in the conduct of the industrial dispute or whether it has nothing to do with it.

What the Amendment seeks to do is to provide that where that has happened the onus should be upon the companies concerned to show that really that transfer had nothing to do with the industrial dispute, that it was arranged on purely commercial considerations and independently of the dispute, and that it was not undertaken with the intention on the part of the second company to assist the first company in the conduct of the industrial dispute. I submit that that does not conflict with the broad scheme of Clause 98. It simply isolates a case in which it is difficult in given circumstances to draw a conclusion as to whether the second company (in the example I have taken) should be regarded as having nothing to do with the dispute; and to make available, by shifting the onus of proof on to that company, information to show whether the transfer was for the purpose of assisting the company engaged in the dispute or had nothing to do with it. I beg to move.

THE LORD CHANCELLOR

My Lords, this somewhat involved Amendment appears now on the Marshalled List for the first time; but in my submission we have already done what is just in this matter by the existing terms of Clause 98(2), for we have provided there a definition of an"extraneous party"which excludes a party who, in contemplation or furtherance of a dispute, has taken any action in material support of a party to it. It will be, I would have thought, for the Industrial Court before whom a complaint is made to decide whether the party is extraneous in that sense; in other words, to decide on evidence whether he has taken any action in material support of a party to the dispute. The effect of this rather involved subsection (4) which the noble Lord has proposed is to provide a presumption which would take away the discretion of the Court, in circumstances which are really not adequate, to define the meaning of"material support ".

Whether it is intended or not, the Amendment seems to give a definition of the meaning of"material support"for the purposes of this clause. If it does, and in so far as it does, the definition is quite defective, for it makes no mention of other forms of support which might be given, such as direct financial assistance by various means. For that reason alone I should have thought it was unacceptable. It is no benefit to try to shackle the court which is to decide a question, which is fundamentally a question of fact, by defining the words"material support ", even if it were possible to give an exhaustive definition of those words. Surely the sensible course must be to leave it to the court to decide the question in the circumstances of the case and on the evidence before it.

Secondly, and from our point of view more important, we cannot accept the presumption, whether couched in adequate terms or not, that a person is to be regarded as a party to any dispute, irrespective of the circumstances. We do not think it possible to legislate in those terms. What we have done in subsection (2)—I think it is all that we can do—is to make clear that a person will not be regarded as a participant if he is neither a party to the dispute nor has taken action in support of a party which clearly involves him in a dispute. The effect of the clause as it stands might very well be that which underlines the noble Lord's intention in moving this Amendment, but we think that should be left to the discretion of the court and to a full investigation of the circumstances of the case. For those reasons I do not find it possible to advise the House to accept this Amendment.

LORD BERNSTEIN

My Lords, it is a bit late in the night to enter into a duel with the noble and learned Lord the Lord Chancellor, especially as he appears to want to use tractors or ploughs for duelling instead of words or pistols. But he said at the beginning of his remarks,"We think we have done what is just." I always thought that what is just ought to appear to be just. The suggestion of my noble friend Lord Delacourt-Smith makes clear the meaning to people like me who have eventually to pass information to people down the industrial line. I suggest that if the Government cannot accept the Amendment which we should like them to accept, at least they should find words which are clearer than those in Amendment No. 82B

LORD STOW HILL

My Lord, I do not think it would assist the House to prolong the discussion. I cannot accept for a moment that this shackles the Court in the least. It simply shifts the onus of proof in a given set of circumstances. The clause has been discussed, we have heard the answer, such as it is, and I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 101 [Complaint to Industrial Court of unfair industrial practice]:

11.29 p.m.

LORD STOW HILL moved Amendment No. 83A:

Page 76, line 11, at end insert— (" and (d) is the person intended by the respondent to be directly affected by such action and has suffered loss as the immediate and proximate result of such action not being loss occasioned in any way indirectly as a consequence thereof.")

The noble Lord said: My Lords, I can move this Amendment very shortly indeed. It relates to a point that I raised on Committee as to the words in Clause 101: the person against whom the action was taken. The noble and learned Lord the Lord Chancellor felt that the Amendment that I then suggested was not satisfactory and he undertook to reconsider the language. Our objective, I think, was exactly the same. Since then he has been so good as to reconsider the language and to write me a letter on it. I tried a"Mark II"Amendment which he dealt with in his letter and this really is a"Mark III"Amendment. I am not quite sure whether the noble and learned Lord has been able to consider this, and I simply put it before him. The characteristic which is introduced is that besides requiring that the complainant shall be the person against whom the action was taken, it requires that he shall be not only intended to be directly affected but also that he shall have suffered loss as the immediate result of the action, and not indirect loss. The merit of the Amendment is that it provides a second safeguard. The general objective is a common one of both sides of the House—to avoid, in a given situation, a number of awards, all up to £100,000, being made in proceedings to different people who joined in those proceedings. I simply ask the noble and learned Lord, if he has been able to consider this"Mark III ", to say whether he thinks it is acceptable or not. If he has not yet had an opportunity of considering it—it was put down rather late—perhaps he would be so kind as to say that he will look at it in due course.

THE LORD CHANCELLOR

My Lords, as the noble Lord has said, this Amendment was put down rather late and therefore I am reluctant to exclude altogether the possibility that I might think on it again, as the noble Lord has so plausibly asked me to do. I am anxious to keep any Amendments on Third Reading down to the absolute minimum, and I do not think that at the moment this Amendment is acceptable, for the reason that I am about to indicate. I do not think there is anything in substance or principle between the noble Lord and myself. I said this in Committee, and I still hold the same view after having heard the noble Lord again. What we all want to ensure is that a complaint under Clause 101 can be presented only by the party against whom an unfair industrial practice is directed. As I promised the House in Committee, I have looked again with the draftsmen at the wording of subsection (1)(c) of this clause. I have looked at it very carefully, and having done so I am bound to say that I think the present wording is preferable to that proposed by the noble Lord.

As regards Amendment 83A, in particular, I freely admit that the matter is not altogether easy, but I am not convinced that the Amendment adds to the clarity of the subsection. It still seems to me that the example I quoted in our earlier debate of the railway passengers still has a certain relevance. Moreover, Amendment 83A would, I feel, be rather too narrow, for two reasons. First, I do not think it can be for the complainant to prove what the respondent intended. The respondent may plead that his action was not intended to be directed towards the complainant; and that might well be a reason why the Industrial Court, after hearing both sides, might think it just and equitable not to grant any remedy on the complaint, or to grant a declaratory order under Clause 101(3)(a). But it must surely be for the respondent to plead and argue that in answer to the complaint, and not for the complainant to establish the respondent's intentions.

Secondly, the reference to loss in the Amendment might be appropriate if compensation were the only remedy available to the Industrial Court. But that is not so. The remedy can be a declaration; it can be an Order in the nature of an injunction. For instance, where a trade union complains that an employer has broken the terms of a collective agreement, and that this constitutes an unfair industrial practice, if it establishes its case the trade union ought at least to be able to obtain a declaratory order under Clause 101(3)(a), or perhaps, and in suitable circumstances, a mandatory order under Clause 101(3)(c), even though no loss can be proved at the time it pursues the matter in court. My own view and that of my advisers, who include Parliamentary Counsel, on whom on matters of this kind I am bound to rely up to a point, is that in the present form paragraph (c) of subsection (1) achieves what both the noble Lord and I wish to do, and achieves it adequately for the purpose. I have, I think, pointed clearly to a number of problems that could arise from the Amendment suggested, and I would hope that the noble Lord would not pursue this Amendment but would rather seek leave to withdraw it.

LORD STOW HILL

My Lords, I rise for the purpose of thanking the noble and learned Lord the Lord Chancellor. Obviously there are difficulties about it; it is a difficult piece of drafting. I ask the leave of the House to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD STOW HILL moved Amendment No. 84:

Page 76, line 42, at end insert— (" (5) In any proceedings on a complaint under this section, an official of a trade union shall be deemed to have acted within the scope of his authority if his actions are subsequently ratified by the trade union of which he is an official.")

The noble Lord said: My Lords, I beg to move this Amendment. Your Lordships may remember that when we were discussing what is now Clause 96 an Amendment in almost exactly the same terms was put down to that clause on the Committee stage. The object was to try to protect a trade union official, even though he had acted outside the scope of his authority from his trade union, if his actions were subsequently ratified. On that occasion the noble and learned Lord the Lord Chancellor gave reasons for saying that that could not be accepted. They were not the basic reasons which divide the two sides of the House on the general content of the Bill, and the noble and learned Lord said that in any event the trade union official surely should be able to obtain clear authority.

I do not revert in this Amendment to the same argument because noble Lords will observe that it is put down, not to Clause 96, but to Clause 101. I venture to move an Amendment in the same terms this evening because in my submission when it is put in Clause 101 it has a rather different and, from the point of view of the Government, perhaps a more acceptable result. In Clause 101 one is being told what the Industrial Court can do by way of granting relief in the event of a complaint's being presented to the Industrial Court. If noble Lords will look at subsection (4) they will see that it is there provided that compensation shall not be ordered to be paid by an official of a trade union if it is shown that he was acting within the scope of his authority.

What the Amendment seeks to do is simply to provide this. Supposing in the course of those proceedings the trade union are in effect ready to take the official under their wing and say that they ratify his actions for the purpose of the proceedings, then the trade union official should not be liable to have an award made against him personally; it would go against the union. In my submission, that is a very different context from Clause 96. In Clause 96 one is specifying the action which is to constitute an unfair industrial practice. In Clause 101 one is simply saying what is to happen when a complaint actually comes before the Court. The Amendment would seek to provide that where proceedings are actually taking place before the Industrial Court, if a trade union is prepared to take responsibility for what the official of the trade union has done outside the scope of his authority, then the award of compensation should be made against the trade union and not against the official. I beg to move.

THE LORD CHANCELLOR

My Lords, this is another Amendment which was in fact discussed very fully in Committee. Subsection (4) of Clause 101 provides for the limitation of personal liability of a trade union official. In order to secure the protection of subsection (4), it must be shown that he acted within the scope of his authority. But when he gets that protection the Industrial Court cannot make an award against him either for compensation or a mandatory order in the nature of an injunction. The only order that can be made against him is a declaration determining the rights of the parties. That is a very substantial protection. The limitation of the protection is based on the fact that he is a trade union official and by Schedule 4 the rules of the organisation of which he is a member which is a trade union or an employers' association registered under the Act—must satisfy certain requirements which we consider reasonable requirements. There must be set out the powers and duties of officials (paragraph 7) and there must be specified when and by whom industrial action can be recommended (paragraph 10).

The policy underlying all this is threefold. First, we want to protect officials who have acted according to the rules of their union. Secondly, we want to buttress the authority of those rules. Any official will think very carefully before breaking the rules of his union as he knows that there is the possibility of a court order if he breaks them. Correspondingly, unions will wish, I would hope, to consider very carefully the degree of discretion which they allow to their officials, since a union which gives to its shop stewards the authority to call strikes will run a greater risk of liability than a union which limits their authority to do so. Thirdly, the provision constitutes an incentive for officials and unions to ensure that their union is registered and thus to obtain protection for officials in respect of their personal liabilities. It is clear that although the Amendment, to some extent, would not affect the first, it would undermine the second and third of the objectives which I have described. It would remove from union officials most of the incentive to act within their authority. They would be far less reluctant to exceed their authority if they knew that subsequent endorsement of their actions would place them in the clear. A shop steward might, for example, easily induce workers to walk out without notice—a"wildcat"strike—if he thought he could thereafter obtain a posteriori ratification by his union. If the union rules said that all officials calls for industrial action must be approved by district officials of the union, the shop steward would run the risk of a court order if the employer complained. But if this Amendment were adopted it would be open to the union to release him a posteriori from the consequences of his action by ratification of his conduct. I think that that must inevitably encourage shop stewards to act similarly in future. For that reason, we cannot accept this Amendment.

I do not think that, with the provision as drafted, officials of unions ought to act timidly or with lack of decision—not, that is, if they are acting within the authority they are given by the rules and not, that is, if the rules are reasonably clear in giving them the authority. They might think from acting irresponsibly they might shrink from breaking the rules. I do not think that one would necessarily regret that. We cannot accept this Amendment. It was debated before. I recognise that the noble Lord has stated his position. I have stated mine.

LORD STOW HILL

My Lords, I am obliged for that full answer. May I in justification of myself say that I think my recollection is right when I say the full debate was on Clause 96? I simply moved it formally on what was the equivalent of Clause 101, which was then Clause 97. That was why I thought it reasonable to take a short time to move it rather more fully this evening. In view of the answer, I ask leave to withdraw the Motion.

Amendment, by leave, withdrawn.

11.46 p.m

LORD GARDINER moved Amendment No. 84A:

Page 76, line 42, at end insert— (" (5) It shall be a defence to any proceedings under this section that the matters complained of took place in circumstances in which, had the proceedings been in tort, there would have been available the defence of justification.")

The noble and learned Lord said: I beg to move this Amendment. It is not one on which I intend to take up the time of the House and still less to divide the House, but it is a point on which the noble and learned Lord, Lord Donovan, the noble Lord, Lord Byers, and I have expressed the same views. Under the tort of knowingly inducing a breach of contract, which generally will continue, the onus is entirely on the plaintiff to prove his case. If the plaintiff proves his case the defendant still has a legal right to be absolved if he can satisfy the Court that in all the circumstances what he did was justified. The defence of justification has nearly always been impossible to define because circumstances vary and it must depend entirely on the facts of the case; but if the plaintiff satisfies the Court on it then the Court has no discretion; it is bound to absolve him. Under this new animal of the unfair industrial practice, the onus again is naturally on the plaintiff but the defendant has been deprived of his defence of justification which every other citizen except the trade unionist will have, and he has to rely on the Court not to make an order against him unless they think it fair to do so. The noble and learned Lord the Lord Chancellor expressed the opinion that he thought as a whole he would be just as well off in that way as if he had not been deprived of his defence, but at the conclusion of the debate which we last had on this subject on May 27, col. 1363, the noble and learned Lord said: I regard this as a continuing debate. I do not say, ' No, we cannot look at it again ' or ' I am certainly right '…I think this is the best I can do at this stage. The noble and learned Lord, Lord Donovan, said: …there is a lot of difference between being entitled to an acquittal as of right and being entitled to an acquittal at the discretion of the Court and if this defence were expressly provided in the Bill it would save a great deal of anxiety among trade unionists and would prevent a great deal of misrepresentation. I am grateful to the noble and learned Lord the Lord Chancellor for making it clear that he has not said the last words upon this subject and that he will consider it again." [col. 1365].

The noble Lord, Lord Byers, said that he would withdraw his Amendment in view of what the noble and learned Lord had said. He continued: I take it that he has not closed his mind to looking at this problem again." [col. 1366.]

My Lords, I put down this Amendment so that the noble and learned Lord the Lord Chancellor, who has now had time to consider the matter further, may tell us of any further views which he has.

THE LORD CHANCELLOR

Again, my Lords, I do not think this is a case where there is any difference of principle between the noble and learned Lord, Lord Gardiner, and myself; that is to say, I think we look to the Bill to achieve the same result. But however often I come back to his defence of justification, the more certain I am that my original approach was right. Nobody knows what the defence of justification is. We all accept that the books say that it is open, but nobody knows what it is. Although it has been mentioned in all the books and from time to time in a number of cases, the whole thing depends upon a single authority, that of Brimelow v. Casson, which we debated at the Committee stage, and which I went into at great length then. Therefore, I shall not trouble the House with it again.

I simply cannot conceive of any set of circumstances in which the defence of justification could be raised even plausibly by a respondent to a complaint under this Bill which would not be rendered unnecessary by conversion of the remedies under the Bill into an equitable remedy rather than a legal remedy, because before a complainant can succeed he must establish that his application for an order is just and equitable. So far from taking away something from the respondent's legal defence, we are erecting a barrier for his defence against a complainant succeeding, which must protect him before he reaches it. So far from being not so well done by under the Bill as he will be if he had this mysterious defence of justification, which no one can define, I am satisfied that he is a great deal better off. Far from being deprived, he is given something.

I do not want to be dogmatic, but however often I approach this problem, this is the result I get. For this reason I think that the Amendment is a misguided one. Who am I to attack the Common Law and the common lawyer, having been one of that school all my life'? But there are times when equity has the last word. I am bound to say that I think by making the rule in equity, we have done a far, far better thing than by reintroducing into the law of industrial practice this mysterious Boojum, the defence of justification, in the tort of inducing breach of contract. That Boojum exists in the textbooks, but what it is, where it would be available and who would be able to claim advantage of it, I do not know, and for the purpose of this Bill I would hope that it would softly and silently vanish away in the bright daylight of equity and justice.

LORD GARDINER

My Lords, I have listened carefully to what the noble and learned Lord the Lord Chancellor has said. I am bound to say that for my part I still agree with the noble and learned Lord, Lord Donovan. But I am grateful to the noble and learned Lord for being good enough to give consideration to the point and I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

Clause 102 [Complaint of breach of duty under s. 13(1) or s. 56]:

LORD DRUMALBYN moved Amendment No. 84B: Page 77, line 9, at end insert (" or to confirm any such information in writing when requested by them to do so ").

The noble Lord said: My Lords, this Amendment simply extends the grounds for complaint to include cases where the employer fails to confirm in writing information which he is required to disclose to a trade union under Clause 56. It is consequentially on the Amendment moved by the noble Lord, Lord Diamond, No. 79HHH. I beg to move.

LORD DELACOURT-SMITH

My Lords, on behalf of my noble friend Lord Diamond, may I express his appreciation to the noble Lord for having met this point and introduced this Amendment.

On Question, Amendment agreed to.

Clause 105 [Special provisions as to certain complaints to Industrial Court]:

LORD DRUMALBYN moved Amendment No. 85: Page 79, line 36, leave out (" section 55(1)(b) of this Act ") and insert (" paragraph (b) of subsection (1) of section 55 of this Act, or by virtue of that paragraph as modified by any of the provisions of subsections (2), (3A) and (3B) of that section ").

The noble Lord said: My Lords, this looks a complicated Amendment but it is simply consequential following on Amendment No. 77 to Clause 55. Your Lordships will recall that Clauses 51 and 55 were amended with the purpose of carrying the concept of"associated employers"right through the recognition procedure. Amendment No. 85 is a consequential Amendment following on those Amendments. It is necessary because the new subsections (3A) and (3B) which have been inserted into Clause 55 have the effect of modifying Clause 55(1)(b) to deal with the case where a recognition order has been made against more than one employer. I beg to move.

LORD DELACOURT-SMITH

My Lords, this is a formidable looking Amendment. We are happy to accept the explanation that the noble Lord has given.

On Question, Amendment agreed to.