Lords Sitting of 13 July 1971

Preamble
The House met at half past two of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Chichester):
The LORD CHANCELLOR on the Woolsack.

SELECTIVE ENTRY IN SURREY SECONDARY SCHOOLS
LORD GARNSWORTHY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what educational reason influenced the decision not to approve the proposal of Surrey County Council to abolish selection for admission to secondary schools in the area of Walton-on-Thames and Hersham in Surrey.]
THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF EDUCATION AND SCIENCE (LORD BELSTEAD): My Lords, I apologise for the length of this reply. On June 18, 1971, my right honourable friend approved Surrey's proposal, submitted under Section 13 of the Education Act 1944, to change the character of Rydens Secondary School so that it should become comprehensive and admit pupils at age 13 without reference to ability and aptitude. The Surrey Authority had given notice of their intention of ending the 11-plus selection arrangements for children living in the area to be served by the Rydens School. The effect of this would have been to withdraw from pupils in the area any opportunity of qualifying for a place in either a maintained grammar school or a non-maintained grammar school at which Surrey take places.
My right honourable friend received complaints from parents about the Authority's decision and she concluded that their proposed arrangements were unreasonable because they had the effect of eliminating all choice of school for those children who might qualify for a grammar school place. The factors which my right honourable friend took into account
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included the nature of the area, the schools available, the possibility of some parents wanting to send their children to denominational and single sex schools, and the fact that the Authority's arrangements made no provision for any exceptions. Accordingly my right honourable friend directed the Authority under Section 68 of the 1944 Education Act to modify their arrangements to as to enable children living in the area to be served by the Rydens School to take part at their parents' request in the Authority's arrangements for the selection of candidates for grammar school places.
LORD GARNSWORTHY: My Lords, while thanking the Minister for that lengthy reply—and since it is so lengthy I hope the House will be a little indulgent—may I ask whether he could tell the House, since the proposal to abolish selection at Walton and Hersham in 1971 was specifically set out in the declaration of intent as approved by the County Council in 1967 and accepted by the then Secretary of State, how it can now be regarded as unreasonable of the County Council to wish to implement that policy, having regard to the fact that they have already begun to implement it at Frimley and Camberley, and especially in the light of Circular 10/70, which was supposed to make authorities freer to determine the shape of secondary provision in their areas?
LORD BELSTEAD: My Lords, the proposal which the Surrey Education Authority published required approval by the Secretary of State under Section 13 of the Education Act 1944, and in fact the proposals have received approval from my right honourable friend. The special proposals by the education authority to exclude children in this area from taking any entrance examinations set for children outside the area did not form part of these proposals, and did not form part of my right honourable friend's decision under Section 13. They formed part of a direction under Section 68.
LORD JANNER: My Lords, in view of the reply that has been given to your Lordships and the attitude that has been adopted by the Secretary of State, would the noble Lord say whether the Secretary of State is in fact saying that she will not approve any proposal to end selection and eliminate separatism? Does it mean that

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she will insist upon the retention of grammar schools whenever reorganisation proposals are submitted?
LORD BELSTEAD: My Lords, my right honourable friend will decide on Section 13 proposals on their merits in each individual case.
LORD GARNSWORTHY: My Lords, while appreciating what the Minister said in reply to my Question, may I ask him whether he is aware that the County Council has already begun the abolition of selection and separatism at Frimley and Camberley? While I am fully aware of the use that has been made of Section 68 of the Act (which is rather unusual), I wonder whether he will tell us where, under Sections 6, 17 and 57, as stated in the letter from the Department, the county are in any way at fault?
LORD BELSTEAD: My Lords, the letter which was sent to the Authority by my right honourable friend referred to Section 8 of the Education Act, which deals with providing schools "sufficient in number, character and equipment" to provide suitable education for the different ages, abilities and aptitudes of pupils. Section 17 refers to articles of government, which of course contain provisions about admission arrangements for schools, and Section 37 refers to school attendance orders. Section 6 of the 1953 Act is the section which refers to local education authorities being empowered, if they wish, to take up places at direct grant schools and also at independent schools. I leave to the judgment of your Lordships the reasons why my right honourable friend took the decision she did in the light of the extremely long Answer which I gave at the beginning of this exchange.
LORD GARNSWORTHY: My Lords, may I ask the Minister whether he will draw the attention of his right honourable friend the Secretary of State to the very bad Press she has had with regard to her decision, and in particular to The Times Educational Supplement of July 2, in which the views of the noble and learned Lord the Lord Chancellor, when he was Minister of Education in 1957, appeared to be completely at variance with the action she has now taken?
LORD BELSTEAD: My Lords, I think that if the noble Lord will look at Circular 10/70, which my right honourable friend issued soon after June of last year, it will be seen that it is felt that there should be freedom—or rather more freedom; the word used was that it should be "freer"—for people to decide on education. This includes parents as well as elected representatives.
LORD GARNSWORTHY: My Lords, this is very important, and it is a matter of national importance, not purely local. The noble Lord has just said that Circular 10/70 said that people should be freer. Paragraph 2 states—
SEVERAL NOBLE LORDS: Order!
THE LORD PRIVY SEAL (EARL JELLICOE): My Lords, I think the noble Lord has had quite his fair share of supplementaries, if I may say so. I should not wish to deny him another, but could he perhaps phrase it in an interrogatory manner?
LORD GARNSWORTHY: My Lords, I am grateful to the noble Earl the Leader of the House for drawing the point to my attention, and I apologise if, because of the involved nature of the subject, I did not follow the usual form. May I ask the Minister whether he is aware that the article in The Times Educational Supplement to which I have referred said:
"As he saw it, the Minister should not override an education authority even when he thought they were wrong, unless he is convinced that they have not fairly considered the case or that their decisions are not merely wrong but perverse."
Will he please convey that to his right honourable friend?
LORD BELSTEAD: My Lords, I have given the noble Lord references and full explanations of the sections in the Acts under which my right honourable friend felt that she must direct the education authority. I think I can do no more than that.
LORD BESWICK: My Lords, the noble Lord said that his right honourable friend would judge each case on its merits. He also said that included in the merits was the nature of the area. Would the noble Lord be good enough to tell us something about the nature of this particular

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area which justified segregation?
LORD BELSTEAD: My Lords, the reference to the "nature of the area" was, I think, to the ease of travel in the area; and of course careful note is always taken of the number of pupils who may not go to the school, which has in this case been approved as a new comprehensive school.
BARONESS GAITSKELL: My Lords, is it not true that in the Secretary of State's own constituency the authority has not answered her clarion call for freedom but has gone ahead with its own plans for comprehensive education?
SEVERAL NOBLE LORDS: Answer!
LORD BELSTFEAD: My Lords, I should be delighted to answer that question. The House went into this matter at great length on an Unstarred Question raised by the noble Lord, Lord Silkin, nearly a year ago, when it was my pleasure to be able to point out to the House that comprehensive education, singularly successful in many areas of this country, has been divided between authorities—some Conservative, some Labour and many independent.

NORTHERN UNIVERSITIES' ENTRANCE STANDARDS
2.40 p.m.
BARONESS SUMMERSKILL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government why the Northern univerities ask for a higher standard for girl applicants to the medical schools than for boys, as revealed in the Leeds Medical Faculty prospectus, which states that boys will be expected to obtain three Grade "C" passes at "A" level (or better) while girls must obtain two Grade "B" passes and a "C" (or better).]
LORD BELSTEAD: My Lords, the admission of students is a matter for the individual universities. I understand that the Leeds Medical Faculty have resolved during the present session that
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the sole criterion for selection should be suitability for the medical course, irrespective of sex.
BARONESS SUMMERSKILL: My Lords, is the noble Lord aware that he has not denied the information I have given? Is not he aware that to-day we are very short of doctors, that we are compelled to take them from Pakistan and India, where they are very much needed? Is it not a most short-sighted policy for the Government still to continue this discrimination against able girls?
LORD BELSTEAD: My Lords, I entirely appreciate both the experience and the strength of feeling from which the noble Baroness speaks. The noble Baroness knows better than I not only the extent of the shortage but the effect it has. I would not diagree with her on that. I would certainly disagree when she talks about Goverment policy. I think I answered that part of the supplementary question in my original Answer.
BARONESS SUMMERSKILL: My Lords, would not the noble Lord agree that it must surely be Government policy if we are so short of doctors that we have to take Commonwealth doctors from those countries? If he is so sympathetic will he also see to it that the London medical schools increase the number of women they are prepared to take, which at the moment is a small percentage of the whole? Is not this also most stupid, prejudiced and discriminatory?
LORD BELSTEAD: My Lords, the numbers in the London medical schools are rising. I think all your Lordships would hope, with the noble Baroness, that these figures might continue to reflect the decision which Leeds has in fact taken.
LORD GARDINER: My Lords, are not these practices in fact a breach of the Sex Disqualification (Removal) Act? If the noble Lord cannot answer that question to-day, would he be kind enough to write and let me know on what grounds they are not?
LORD BELSTEAD: My Lords, I think I can give this answer to the question which the noble and learned Lord has asked me. I would be advised, I think, that if there were any contravention of the Sex Disqualification (Removal) Act 1919, it would not be for Her Majesty's

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Government to enforce the law, and that the remedy for any woman aggrieved would be by way of civil injunction. I know this is not quite a direct answer to the noble and learned Lord, but I am afraid it is the best I can give this afternoon.
BARONESS EMMET OF AMBERLEY: My Lords, may I ask, in support of this Question, whether in due course, when the noble Lord has had time to gather the information, we could have a report on the conditions regarding the admission of women to the medical degrees of our various services?
LORD BELSTEAD: My Lords, I have figures here, but I do not think they fully answer the noble Baroness, and if I may, I will write to her. If the noble Baroness wishes to press me, I have certain answers, but I do not think they provide the global total she is asking for.
LORD PLATT: My Lords, are Her Majesty's Government aware that, as I have said before in this House, the number of foreign doctors from India and Pakistan and other places is not a fair index of the shortage of medical men in this country? The position is greatly complicated. The majority of these doctors are holding only temporary posts, and if you were to qualify enough people to fill all those posts with British people they would be out of work for most of the rest of their lives.
LORD BELSTEAD: My Lords, I am grateful to the noble Lord for giving his expert advice in question form to the House. It might interest the noble Baroness, Lady Emmet, that the total number of medical school places has increased from 2,020 in 1961 to 2,873 last autumn, and plans have been announced in Parliament for continued expansion to over 4,000 by the late 1970s. I give that information in conjunction with what the noble Lord has just said.
BARONESS SUMMER SKILL: My Lords, can the noble Lord amplify that information? There are 2,000 places for women. How many are there for men?
LORD BELSTEAD: My Lords, that was not the figure I gave.
BARONESS EMMET OF AMBERLEY: My Lords, can the Minister make quite
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clear whether the figure he has given is for women applicants or for total applicants?
LORD BELSTEAD: Total.
BARONESS WOOTTON OF ABINGER: My Lords, may I ask the Minister what his reaction would be if the Northern Universities set out in their prospectuses that higher entry qualifications would be required from coloured applicants than from white, and what would be the difference between that type of discrimination and this?
LORD BELSTEAD: My Lords, I think that is a little wide of the original Question.
BARONESS SUMMERSKILL: My Lords, may I ask the noble Lord why the Government feel so strongly about colour discrimination and prejudice, and why they do not feel so strongly about sex discrimination and prejudice?
LORD BELSTEAD: My Lords, I am not aware that I have given any opinion about colour discrimination and prejudice.
BARONESS SUMMERSKILL: My Lords, it is in the papers every day.
LORD SHACKLETON: My Lords, although the House thinks that the Minister is batting manfully on an impossible wicket, would he consider preparing a statement which bears on the specific point of my noble friend's Question, as to why this discrimination is acceptable and whether the Government ought not to have a view on it?
LORD BELSTEAD: My Lords, I am in the fortunate position to-day of being able to read up a Question and the answers given by the noble Baroness, Lady Phillips, for whom I have the greatest admiration, at the time of the last Government. This is why I was delighted to be able to say, at least to my noble friend, that the numbers planned for the 1970s show a considerable lightening of the situation, and to be able to assure the noble Baroness, Lady Summer-skill, that we agree with her in principle and sympathetically.
BARONESS BURTON OF COVENTRY: My Lords, would the noble Lord be equally delighted to answer a very simple

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question to which I have not heard the answer. I believe he told the noble Baroness, Lady Emmet of Amberley, that there were 2,000 vacancies for medical students this year. Could he tell us how many of those are for women?
LORD BELSTEAD: My Lords, I am sorry; I do not think I can at the moment. I have papers, but I am becoming increasingly muddled with them. If I may, I will write to the noble Baroness.
BARONESS BURTON OF COVENTRY: My Lords, could the reply to my question be circulated in the OFFICIAL REPORT?
LORD BELSTEAD: My Lords, if a Written Question is put down by the noble Baroness, most certainly. I have no wish in any way to dodge this issue. If the noble Baroness would like to table another Question, I shall of course be here to reply.
LORD SEGAL: My Lords, can the noble Lord inform the House whether many outstanding candidates, regardless of sex, are still being rejected by medical schools owing to the inadequate number of places available for entrants?
LORD BELSTEAD: My Lords, I am sorry, but I think we are getting a little wide of the original Question.
LORD SLATER: My Lords, is the noble Lord not aware that the very fact that this Question has been tabled, and has led to so many supplementaries shows that, although one was of the opinion that all major Parties believed in freedom of opportunity and equality, it seems from the action of the present Government, and of previous Governments also, that that line of approach has not been taken? Does this matter not warrant further consideration, to bring about this equality of opportunity?
LORD BELSTEAD: My Lords, I will certainly draw the attention of my right honourable friend to what has been said in the House to-day.

OVERCHARGING OF FOREIGN VISITORS
2.48 p.m.
LORD SEGAL: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what means of redress are available for those foreign visitors who are grossly overcharged during their stay in this country.]
LORD DENHAM: My Lords, if a visitor is charged more than the provider of the goods or services is legally entitled to demand he has the same legal remedies as are available to a British subject. These include the right to refuse to pay the excess.
LORD SEGAL: My Lords, I thank the noble Lord for that reply. Is not this really a question of private enterprise gone mad? Here are the Government doing their best to get this country into Europe, while allowing private individuals to do their best to keep Europe out of this country.
LORD DENHAM: My Lords, there is of course no machinery for limiting prices, except where there is a statutory limit.
LORD BROWN: My Lords, would it not be possible to draw the attention of the British Tourist Authority to the possibility of considering setting up some channel which could be used by foreign tourists to ventilate grievances they have in this respect?
LORD DENHAM: My Lords, the British Tourist Authority is primarily a promotional organisation and is not geared for receiving complaints.
LORD SHACKLETON: My Lords, may I ask the noble Lord if he will ask the British Tourist Authority whether they consider themselves geared to help in this matter? I think he will get a different reply from the one that he gave to us.
LORD DENHAM: My Lords, I should be rather surprised if I did, but I will certainly set that line of inquiry in motion. There are one or two things that are open equally to residents in this

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country and tourists from overseas if they feel that the law has been broken in any way: they can go to the Citizens' Advice Bureaux, or they can go to the police.
LORD PEDDIE: My Lords, would the noble Lord kindly give some indication of the nature of the legal restrictions upon unduly high prices, to which he made reference in his original reply?
LORD DENHAM: Yes, my Lords. The legal restrictions would be, as I see it, about four in number. The first is where there is some agreement as to price before the actual sale takes place. If this agreement is broken, a civil action for breach of contract would be possible. Secondly, there are various statutory limitations in price, such as taxi fares in London. Thirdly, there are cases where possibly there has been a misleading description; and, fourthly, there are cases where there is some sort of deception, such as the wrong change being given.
BARONESS GAITSKELL: My Lords, would not the noble Lord agree that British visitors on the Continent of Europe are just as liable to be overcharged as foreign visitors over here?
LORD DENHAM: Yes, my Lords; I am very grateful to the noble Baroness for bringing up that point.
LORD SEGAL: My Lords, would it not be of considerable help if this information, giving also the maximum charges, were displayed on a notice in every hotel bedroom in this country, so that foreign visitors will know what remedies they have against such instances of overcharging?
LORD DENHAM: My Lords, the Development of Tourism Act 1969 makes provision for both the displaying of prices and the registration of hotels, but an Order in Council would be needed to bring the relevant sections into effect. I am advised that if they were brought into effect the registration would have to come first, and the British Tourist Authority are at the moment examining the criteria for such registration.
LORD SEGAL: My Lords, is it not high time that such an Order in Council was introduced? Is the noble Lord aware that many visitors to this country are reluctantly forced to sleep out because
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they cannot afford the high charges made to them in this capital City of London?
LORD DENHAM: My Lords, I cannot comment on the second part of the noble Lord's question, except to say that obviously all of your Lordships will agree that gross overcharging is intolerable and should not take place. But I cannot commit my right honourable friend as to whether these two sections of the Development of Tourism Act will be brought into effect, and he has not yet had any advice from the British Tourist Authority.

HOUSING FINANCE
EARL ST. ALDWYN: My Lords, with the leave of the House my noble friend Lord Sandford will be making a Statement on housing finance in England and Wales at a convenient moment after 3.30 p.m.

TRIBUNALS AND INQUIRIES BILL [H.L.]
2.54 p.m.
THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE): My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be now read 3a. —(The Lord Chancellor.)
On Question, Bill read 3a.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved, as an Amendment to Schedule 3:
Page 22, line 18, at end insert—
("THE LAND COMPENSATION ACT 1961
(9 & 10 Eliz. 2 c. 33)
In section 21(1) of the Land Compensation Act 1961 for the words "the Tribunals and Inquiries Act 1958" there shall be substituted the words "the Tribunals and Inquiries Act 1971 (or any enactment replaced thereby)".")
The noble and learned Lord said: My Lords, I beg to move the short Amendment standing in my name. It is necessary because of a draftsman's slip. Schedule 3 to the Bill contains consequential Amendments of the kind usually found in Consolidation Bills whereby references to other Acts in the consolidating provisions are translated into references to the corresponding provisions of the Bill. Another enactment requiring translation has come to light, and this Amendment adds it to the Schedule. The

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noble and learned Lord, Lord Gardiner, has asked me about the phrase at the end of the Amendment,
"(or any enactment replaced thereby)".
The answer to that is that it is to save pending appeals. My Lords, I beg to move.
LORD GARDINER: My Lords, I wonder whether the noble and learned Lord the Lord Chancellor will be good enough to add something with reference to the words in brackets. This is an ordinary Consolidation Bill; it contains in Clause 18(1) the ordinary clause,
"The enactments specified in Schedule 3 to this Act shall have effect subject to the amendments there specified, being amendments consequential on this Act."
There are many examples in the Schedule, and what is done in every case is that where in an Act there is a reference to the former Tribunals Acts, which are now to be replaced by this Act, such reference is to be read as referring to this Act. That we all understand. One was overlooked, and I quite understand that. So far as it says,
"In section 21(1) of the Land Compensation Act 1961 for the words 'the Tribunals and Inquiries Act 1958' there shall be substituted the words 'the Tribunals and Inquiries Act 1971'",
that is what is done in every other case. The additional words,
"(or any enactment replaced thereby)"
are puzzling to understand. "Thereby" must be borne by the 1971 Act, and not by the Compensation Act. I still do not understand, whether there are pending appeals or not, why it is necessary to put into the Land Compensation Act 1961 a reference to any Act which is replaced by the Tribunals and Inquiries Act 1971.
THE LORD CHANCELLOR: My Lords, I thought I had explained that. This is not the only occasion, even in this Consolidation Bill, where there occurs the formula which the noble and learned Lord is asking about. If he will look at page 22 of the Bill he will see that the third item down between the lines 20 and 25 contains two such references. As I said, it is a device by the draftsman whereby the Act can come into force at once point of time. There are a number of pending appeals under the Act of 1958, which is what was referred to,
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and that saves the Act of 1958 for the purpose of pending appeals. I thought I had made that plain.
On Question, Amendment agreed to.
THE LORD CHANCELLOR: My Lords, I beg to move that the Bill do now pass.
Moved, That the Bill do now pass.—(The Lord Chancellor.)
On Question, Bill passed, and sent to the Commons.

PREVENTION OF OIL POLLUTION BILL [H.L.]
Read 3a, and passed, and sent to the Commons.
RURAL WATER SUPPLIES AND SEWERAGE BILL
Read 3a, and passed.
NATIONAL INSURANCE BILL
Read 3a, and passed.

INDUSTRIAL RELATIONS BILL
3.1 p.m.
THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN): My Lords, I beg to move that this Bill be now further considered on Report.
Moved accordingly, and, on Question, Motion agreed to.
Clause 106 [Complaint to industrial tribunal of unfair industrial practice under s.5 or s.22]:
LORD STOW HILL LORD STOW HILL moved Amendment No. 85A:
Page 81, line 7, after ("be") insert ("reinstated or").
The noble Lord said: My Lords, perhaps I may discuss with this Amendment the next Amendment, No. 85B, which goes with it. The object of this Amendment is to include, among the recommendations that the industrial tribunal can make when it is dealing with a claim for unfair dismissal, reinstatement as an alternative to re-engagement. I feel I should apologise to the House for asking

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your Lordships to consider again a question which you considered fully in Committee. I do so only because, having carefully read the Report of the speeches and having considered the arguments, I feel that the answer given from the Government Front Bench did not quite deal with the case that was made in support of this Amendment. It was a very courteous and careful answer, but I think it left the case not wholly disposed of.
I do not want to go over again the broad arguments in favour of the proposal. May I summarise them, however, by saying that I think it will be within everybody's experience that, if a man has been dismissed from his employment, it is not necessarily compensating him adequately to re-engage him. A man, or a woman, may work for years and years faithfully serving those who employ him, achieving status, attracting confidence and gaining the esteem of his fellow workers and of his employers. He is then, in the assumed circumstances, unfairly dismissed and the question arises: if he can show that he has been unfairly dismissed, how should he be treated by the tribunal which deals with his case for the purpose of reimbursing him for the loss he has sustained?
The structure of Clause 106 in which I seek to make this change is as follows. It deals with claims under Clauses 5 and 22, and Clause 22 deals with the case in which a dismissed worker brings a complaint before an industrial tribunal, complaining that he has been unfairly dismissed. Subsection (4) of Clause 106 assumes that the complaint has been made out and it then specifies what the tribunal can do. One of the powers which is vested in the tribunal is the following. The tribunal may, if it
"considers that it would be practicable, and in accordance with equity, for the complainant to be re-engaged by the employer…make a recommendation to that effect, stating the terms on which it considers that it would be reasonable for the complainant to be so re-engaged or engaged."
If one looks at Clause 115, one finds that if subsequently it is brought to the notice of the tribunal that the recommendation has for no adequate reason not been complied with by the employer, it can correspondingly increase the compensation which it would otherwise have been disposed to award. In a sense, I suppose the increase is intended as a kind of puni-
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tive increase upon the basis that the employer has acted wholly unreasonably.
I have foreshadowed the case that I seek to put before the House in support of this Amendment and, as I said, it is that the tribunal should be entitled to recommend that the worker should be either re-engaged—and by "re-engaged" I take it is meant taken into employment in some post or other, with the same employer or with a successor of the employer, but not necessarily in the same post from which he was dismissed—or reinstated that is, to be accorded again the full position from which he was dismissed, carrying with it all that he had won over the years by his loyal service in that post.
I do not think that is an argument which gains strongly from repetition or elaboration. It is a simple point; it has absolutely no Party content whatever, and I should have thought that noble Lords on both sides of the House would find that no conceivable element of doctrine could separate them in their approach to a matter of that sort. This Amendment is simply an effort by those who with me propose it, to see that full justice is done to a worker who, in the assumed circumstances, can show not only that he was dismissed but that he was unfairly dismissed. Once he can show that he has been unfairly dismissed and has established that to the satisfaction of the tribunal, surely the tribunal should be given powers completely to reimburse him for the loss not only in terms of finance, but also in terms of status and dignity, which he has undergone as a result of the assumed wrongful act of his employer. My Lords, I beg to move.
LORD PARGITER: My Lords, I have one question which can perhaps he answered at the same time. What will be the position of a person in an occupational pension scheme perhaps run by an insurance company, or alternatively in a non-contributory scheme run by the firm? If a person is dismissed, then presumably he is not entitled to anything if the scheme is a non-contributory one. If it is a contributory one, perhaps run by an insurance company, he may have his contributions returned to him. But it seems to me very doubtful that he will be reinstated in the pension scheme if he is re-engaged. This is a most important point. If a man is reinstated the position

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is perfectly clear, but if he is re-engaged the position is not so clear. The tribunal may say that a person's pension should be unaffected, but if an insurance company is involved that may not be so easy. A person ought not to be under any penalty, or implied penalty, if he has been wrongfully dismissed. So I hope that the noble Lord will give consideration to that point.
LORD SLATER: My Lords, I was interested in the case that my noble friend Lord Stow Hill put forward when moving this Amendment. He suggested that the Court should make reasonable recommendations and that those recommendations should be accepted. My reason for supporting this Amendment is that I happened to occupy a position in which I had to give every consideration to recommendations placed on my desk for dismissal of workers. This was when I was at the Post Office as a junior Minister. The recommendations used to come up through the machinery to my desk and they were not always recommendations of dismissal for something that had happened in the work of the Post Office but for something which had happened outside that employment. I remember a particular case which came before me and which went before a sheriff court in Scotland. Two individuals had committed some offence outside Post Office work for which the sheriff imposed his judgment, but he added a rider to the effect that he sincerely hoped that the Post Office would not seek to dismiss those men from its service.
The recommendation for dismissal came to me because the Department said, "We cannot have these people in the service, because they will be engaged in an office of trust." In the capacity I held at that time I came to the conclusion that the sheriff had had some specific reason for making his recommendation or he would not have made it. Therefore I could not in any circumstances accept the recommendation coming from my advisers that the men should be dismissed, and I did not dismiss them. They were kept in the service. In all probability, if I had accepted the recommendation by the Department, as has been suggested by my noble friend Lord Pargiter, those men would have gone on to the open market to seek further employment,
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but the Post Office could not have given them a reference, even if they were able to find other employment, because they had been dismissed from the service. Not only that, but, as my noble friend said, they would also have lost an amount of money which would have come to them if they had not suffered this form of dismissal affecting pension and gratuity rights. Therefore I sincerely hope that on this Amendment, proposed by my noble friend Lord Stow Hill, and supported by Lord Pargiter, the Minister will see that its acceptance could avoid a great deal of difficulty which could be caused if a man was dismissed in this way and lost his employment and then society had to keep him by means of social security benefits.
3.13 p.m.
LORD BROWN: My Lords, I am sorry to take up further time of the House, but there are many angles from which this Amendment can be supported and I see no harm in adding to the arguments in favour of what I regard as an important Amendment. One of the things I have objected to strongly about the law is that if a person is convicted of a crime and then found to be innocent of it he is pardoned, but if one has a commercial contract and breaches it, then goes to the courts which decide that it has been breached, one is not invited to write a new contract with the other party but is able to get back inside the terms of the original contract. Admittedly this Bill refers to "unfair dismissal", which involves the idea that the person has been already dismissed, but the Bill and the code of industrial relations are full of references to the contract of employment. If a man is held subsequently to have been unfairly dismissed, then the original contract stands and the word "reinstate" seems to be the appropriate word to use in those circumstances. This is a legal argument and no doubt I may be shot down by some of my noble and learned friends and I may be at risk in treading on legal issues, but I believe that there may be a point here.
While I am on my feet, may I yet again draw attention to the fact—this is not quite relevant to the Amendment—that in dealing with the question of dismissal I do not think a sufficient amount of objective thought has been brought to play on the whole issue. I believe we still stand in

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a situation in which there is no discrimination in the Bill between dismissal from a company, the total employment organisation, and dismissal from a role within the organisation, with the possibility of being transferred to another role. If the courts are not guided on this question before the cases begin to arrive, they will be in great difficulty. It is one thing to be dismissed from a company and quite another thing to be dismissed from a role and offered some other role within the company which one may or may not take. I am sorry to drag this matter in, but it has a bearing on the question of reinstatement. I hope that the Minister will consider these two Amendments on the basis of the four different sorts of argument which have been put forward in support of them.
3.16 p.m.
LORD DRUMALBYN: My Lords, the noble Lords who have spoken have all done so very persuasively and I should start by saying that we have great sympathy with what they have said. We have looked again at the subsection, but we are still, I am bound to tell noble Lords, of the view that no change is necessary. Our intention here was to provide for both reinstatement and reemployment of the employee, provided that an adequate alternative to his old job were available. We think that within the term "re-engagement" is included "reinstatement". Under the subsection, as the noble Lord, Lord Stow Hill, has said, the tribunal will be able to recommend full reinstatement where it considers the remedy both practicable and equitable. The reason for this is that under subsection (4)(b) the tribunal is required to make a recommendation and to state the terms on which it considers it would be reasonable for the employee to be re-engaged. That means, quite simply, that the tribunal is given very wide discretion between what some noble Lords think altogether full reinstatement, which probably is different from reinstatement, and the minimum of re-engagement. So it will be appropriate, in any case where a tribunal thinks it to be so, to recommend that an employee be given his old job back on such terms as if the dismissal had never taken place.
The difficulty about the word "reinstatement" is simply this: that it has not any clear sense. "Re-engagement"
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has, but "reinstatement" has no clear sense. There are several meanings that can be applied to it. It can mean re-engagement with retrospective effect to the date of dismissal; it can mean re-engagement in the position which the employee had at the date of dismissal but without retrospective effect; it can mean re-engagement in the position which the employee held at the date of dismissal, or re-engagement in that position without retrospective effect and also it can mean that if in the meantime he would have been promoted to a higher position, re-engagement at that higher position. It has all these various meanings; and the word, I am informed, is not a word that is used at the present time in legislation except in the Title of legislation or in the rubric. It does not appear, I am told, in the text of legislation at the present time. So it has no clear meaning. But what I would assure noble Lords is that what I have said is the intention, and we believe that this will be the effect. It will be within the competence of the tribunal to recommend re-engagement, using its discretion in the light of the conduct of the parties, and in the light of the practicalities of the situation to recommend all of these things: reinstatement in the very fullest possible sense of the term, or simply re-engagement in another job, which is obviously not reinstatement. So the word "re-engagement" covers reemployment in a different job all the way up to full reinstatement, and for those reasons we are entirely at one with the noble Lord in his intentions. We think they are achieved, and therefore we do not think that this word should be added. I would only add that, if it were, it would cause a good deal of redrafting difficulties right throughout the Bill. Does the noble Lord want to ask a question?
LORD SHINWELL: My Lords, I will not trouble to make a speech. Would the noble Lord agree that if he were to add a proviso to the term "re-engagement" on the lines of what he himself has said in the course of his speech—namely, that it might not mean the same job, and that kind of thing, but it would not in any way adversely affect his pension and other rights—it would make all the difference? He might consider that.
LORD DRUMALBYN: My Lords, I made a gesture as if I was going to sit down, I admit, but I then remembered

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I had not dealt with this particular point. At the Committee stage noble Lords expressed their concern that there should be full reinstatement. As I have already said, it is our advice that subsection (4) is sufficiently widely drafted in lines 10 to 13 to enable the tribunals to make recommendations on these matters. But I ought at the same time to make it clear to your Lordships that questions relating to the preservation of pension rights are in rather a different category. They will depend to a considerable extent upon the rules of a particular pension scheme, and will largely be out of the orbit of the tribunal recommendations. I would myself imagine that if, in a particular case, the tribunal desired to make the fullest reinstatement and it were possible under the pension scheme, then it might include that in the terms, but I am afraid I could not say more than that on that point.
My Lords, perhaps I should just refer, in closing, to what the noble Lord, Lord Slater, said and what the noble Lord, Lord Brown, said. The noble Lord, Lord Slater, was very interested indeed about a particular case which came to him when he was Assistant Postmaster General. But, really, it is difficult to bring what he was talking about there into line with what we are talking about here, because the essence of the case that he was talking about is that the men were in fact not dismissed. He asked, therefore, rather hypothetical questions about a different case, and I do not think I could answer those. I hope I have dealt with the point made by the noble Lord, Lord Pargiter.
LORD PARGITER: At an appropriate time, I should like to ask a question.
LORD DRUMALBYN: Then I will come back to that. So far as the noble Lord, Lord Brown, is concerned, he said—and this was really his main point—that "reinstatement" is the appropriate word to use. I hope that I have demonstrated to him that this is just not so. If it were, we would certainly have used it. Does the noble Lord, Lord Pargiter, want to come back?
LORD PARGITER: I am grateful to the noble Lord. As I appreciate, there are circumstances in regard to pension schemes which would make for difficulties, but the point I had in mind was
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that reinstatement would imply so far as the employer was concerned all the legal responsibilities of replacing a man and restoring the status quo. I appreciate that it might not be possible to do that with an insurance company. In fact, if the tribunal made an order which affected an insurance company there might be difficulties; but that would not absolve the employer from making the equivalent reinstatement of the man so far as his pension rights were concerned. That is why I am very much concerned about it.
LORD DRUMALBYN: My Lords, I can understand the noble Lord's concern, but I am afraid it is not a matter I can go into detail about here, because even although the word "reinstatement" was put in here it would not alter the situation.
LORD POPPLEWELL: I think most noble Lords will be very concerned about the reply given by the noble Lord, Lord Drumalbyn, when he states quite frankly that it is the intention of the Government that re-engagement and reinstatement, according to the Government's view, amount to the same thing.
LORD DRUMALBYN: No.
LORD POPPLEWELL: They were the noble Lord's words. He said the intention was to include both.
LORD DRUMALBYN: No, my Lords. I said that re-engagement included reinstatement and re-employment.
LORD POPPLEWELL: This adds to the confusion that is in the Bill. The noble Lord went on to say that there was no objection in principle but it would create a lot of trouble now to amend the Bill to cover these points. Surely this is an admission. If the Government feel, as we are advised, that this is a legitimate Amendment to ensure that the man gets his job back again—and this is very important—and the reason why it is not acceptable is because it is too much trouble to alter the Bill, surely this indicates a weakness which we really ought to put right. It does not matter what we say in this House; it does not matter what is said in the other place with regard to the meaning of any Bill. The ultimate decision is what is actually written down in the Bill when it comes to be operated outside.

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Most of us who have had some experience have defended people who have had their services dispensed with. Sometimes we have got them back into their old job and at other times we have not, but have got them back on a lower wage scale or with them losing the benefits, as indicated by my noble friend, Lord Pargiter—pensions and sickness benefit, and other things. If a man is proved innocent of these unjust practices, surely, now that we are passing this Bill, it is our duty to see that he does not suffer any loss at all, but that he goes back to his old job and to the old "perks" that are attached to it. This must be part of the thing that we have to put right. We must ensure that the meaning is there when this Bill becomes an Act.
THE EARL OF BALFOUR: My Lords, as the noble Lord, Lord Popplewell, has just stated, I think this is very important. Although we can get somebody back into his old employment, we cannot necessarily always guarantee getting him back his old job. I think this is where the real importance of this phrase comes in. We can put in legislation that a man must be re-engaged if it is at all possible, but we cannot put in legislation that he must be reinstated. I think, my Lords, that this is really the crux of the whole matter.
3.29 p.m.
LORD BERNSTEIN: My Lords, the noble Earl who has just spoken evidently forgets what this clause is about. It is about a complaint being considered under this clause relating to a dismissal, and the suggestion is that the complaint is well-founded. That is what we are talking about. My noble friend Lord Brown and I do not always agree, but in this case, as two employers, we do agree. The word "reinstatement" may not be used in legislation, but we are talking of a human relations problem. It is certainly used in industry by the companies with which Lord Brown is involved and by the companies in which I am involved. If I may say so, in my company no managing director has the power or desire to dismiss somebody unless he has examined the file and accepted that the reasons for dismissal are overwhelming. The word "reinstatement" means reinstatement to us. The word as used in industry means that a man is entitled to
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get his job back. Paragraph (4)(b) says: says:
"considers that it would be practicable"
Practicable to whom? If somebody else has been given the job in the three months while the complaint has been under discussion of course there are going to be difficulties; but who is responsible for the difficulties, the man or the company? As an employer, I think the Amendment should be accepted. It would be helpful not only to the people who make the complaints but to the people who have to deal with the complaints.
On the question of pensions it is stated in subsection (5), line 20:
"the tribunal shall make an award of compensation…"
No doubt the tribunal will take into account the loss which the man must have suffered if he has been dismissed and is not reinstated. That is not the same thing. No compensation will give a man back the opportunity for advancement in the company which has made the mistake. Is this clause to defend the employer about a mistake or to defend and help the man who has been unfairly dismissed?
LORD DRUMALBYN: My Lords, the noble Lord has put a question, and the answer is that the tribunal or the court will do what is just and equitable in the circumstances.
LORD BERNSTEIN: My Lords, it does not say so. It says what
"would be practicable".
I agree that
"and in accordance with equity"
follows. But if it is not practicable to the employer what are they going to do? They say you have to dismiss a man. Are they going to get involved in what is practicable with the operational company? The noble Lord, Lord Brown, and others have made a good point, and I think it would be regrettable if this Amendment is not accepted.
LORD DIAMOND: My Lords, I am sure that the noble Lord will recognise that we are in considerable difficulty about a matter which is of the utmost importance to every employee concerned, and we are very grateful that we are marching in step with the noble Lord in

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our desire to include reinstatement as an indication to the tribunal of what should be done, in contradiction to what the noble Lord indicated in his short intervention. The difficulty which the noble Lord put to us, and we are bound to take note of it, is that there is a technical drafting difficulty in that the word has never been used before in the text of a Bill. The noble Lord I am sure will forgive me if I point out to him—and I think he will find this correct in reading Hansard—that whenever in his interesting and clear and lucid speech he wanted to make his meaning clear he said "reinstate". I am only making the simple point that in conversation between us we all understand what "reinstatement" means.
The difficulty is that inasmuch as it is a word which is in such current and regular use throughout industry and in ordinary parlance, surely if it is omitted from the Bill it will be open to anybody to say that Parliament did not want us to reinstate, otherwise it would have said so. That is point No. 1. Point No. 2 is, "Why", they would go on to say, "did Parliament use a word like 're-engage', which word could be satisfied without reinstatement?" There is that difficulty. So the difficulty I see is not only that which the noble Lord has put forward but the fact that legislation as at present drafted is a clear indication, for those two reasons, not to reinstate. The noble Lord has used the word "re-engagement" as including the sense of reinstatement. That may be so, but for the two reasons I have given it is open to any tribunal to read this clause as at present drafted as meaning, "Do not reinstate but only re-engage".
I am bound to come to the technical difficulty, although my noble and learned friend Lord Stow Hill will be better equipped to deal with the legal side than I am. The word "reinstate", if it has not been used in the text of a Bill, nevertheless must have a meaning capable of being written down in English, and what it means could be written down in words which have been used in the text of a Bill, so if the noble Lord does not like the word "reinstatement" it can be broken down into what it really means and those words can be put in the Bill. The noble Lord said at one stage that
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"reinstatement" means "re-engagement in the fullest sense of that term". If that is a draftsman's phrase and is intelligible—it is intelligible to us—then put in the Bill "re-engagement in its fullest sense", or whatever words indicate to a tribunal that it should include in its review the possibility of what every noble Lord in the House would describe as "reinstatement". We must not be put in the ridiculous position that what both sides of the House want is incapable of being achieved and, worse than that, that an indication is being given to the opposite. I do not know how it is going to be drafted, but we cannot leave it in its present form.
LORD SINCLAIR OF CLEEVE: My Lords, may I say that I have great sympathy with the thought that lies behind this Amendment. From my own experience I think it is desirable that what we all recognise and think of as reinstatement should somehow be covered. But I must say that on looking at this clause as drafted it seems that the words immediately following subsection (4)(b):
"the tribunal shall make a recommendation to that effect, stating the terms on which it considers that it would be reasonable for the complainant to be so re-engaged or engaged"
give the tribunal full discretion to specify reinstatement or such degree of reinstatement as it thinks appropriate. That seems to me to be common sense.
3.38 p.m.
LORD STOW HILL: My Lords, may I press the noble Lord a little further on this matter and take some of the points he has dealt with? First of all, he feels that there is a difficulty about the word "reinstatement", and if I understood him correctly he was saying that the word "reinstatement" is not used in the text of any other Statute. With great respect to him, it was used, for example, in Clause 37 of the last Government's Bill. The words are:
"shall make an order for reinstatement".
That Bill, I take it, was drafted by the same Parliamentary counsel as drafted the present Bill. If they found no difficulty in putting it in the last Bill I should have thought there could not be any difficulty so formidable as to prevent its being put into this Bill. It seems to me that the Minister might be a little more helpful here. I do not mean to say that he

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is intending to be unhelpful—that is the last thing I would ever say of the noble Lord, Lord Drumalbyn. The noble Lord is very responsive to the mood of the House; he has always shown himself to be so. I should have thought that it was quite obvious on this occasion that there is, on both sides of the House, strong sympathy with the general purpose of this Amendment. If that is so, and if the Government, as the noble Lord has said, also sympathise with it and themselves would like to achieve precisely the objective I sought to outline in moving this Amendment, we should make a concerted effort to ensure that that objective is achieved by the language which appears in this Bill.
My Lords, I quite follow the noble Lord's argument that the phrase, "to be re-engaged on such terms as he considers reasonable" would cover all that could be included in the Bill if the word "reinstatement" were put into it. I submit that is not the case, or at least that it is doubtful whether it is the case. If it is doubtful one can remove the doubt by definition sections and other drafting devices which Parliamentary counsel master so completely. I should have thought that reinstatement could have various aspects. In the first place it could have those aspects which I have sought to describe: those which relate to status; those which relate to the position which a person has achieved after many years.
The noble Lord will say that that can be done by prescribing in the recommendation terms which go to putting the worker back in precisely the same situation as he was before. I should have thought that there was some doubt, as a matter of drafting, whether the expression "terms" did extend so far. Generally speaking, I should have thought "terms" related to the remuneration you are to receive and the type of work you are to do, and could not be said to extend to putting you back, in terms of dignity and status, into the position in which you were before. So I should have thought that is open to doubt. Secondly, as the noble Lord said, there was the question of retrospection; and as has been pointed out by many of my noble friends, particularly by the noble Lord, Lord Pargiter, that is of critical importance in this case because of the pension aspect.
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I should have thought that if one uses the word "re-engage" in a Statute, you are connoting by the word itself that there is the beginning of a new contract; that you are not seeking to wipe out a break in a contract which has taken place and putting the person back to the position that he would have been in if there had not been that break. You are excluding retrospective operations.
LORD DRUMALBYN: My Lords, if that is so, why does the noble Lord think that the Bill uses the words "re-engaged or engaged"?
LORD STOW HILL: My Lords, the expressions "re-engaged" and "engaged" both describe, I should have thought, the creating of a new contract of engagement, a new contract of employment which starts as from the time you are speaking of, and it is the opposite of wiping out a break which had occurred in the past. I should have thought it undoubtedly a question whether the object that the whole House has in view is achieved by this language. With respect to the noble Lord, is not he being perhaps a little less co-operative than he is generally in refusing even to consider that which could have the effect of removing a doubt? Would he not consider, for example, putting something in the definition clause, Clause 163, to say that the expression "re-engagement" shall be deemed to include everything connoted by the word "reinstatement", couched in proper language which Parliamentary counsel could find? Would he consider doing something of that sort? Would he consider incorporating in this clause something which would make perfectly clear that the expression "terms" could extend to putting the position back as it was before?
So far as the pension situation is concerned, will the noble Lord consider putting something in Clause 115 which, as I have said, enables the industrial tribunal to increase the compensation payable if the recommendation is not carried out? Would he not consider putting something in that clause to make clear that the compensation that may be awarded, whether or not the man is re-engaged, shall amply cover any loss that he may sustain as the result of wrongful dismissal owing to a break in the contract of employment, for the purpose of any

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pension scheme? My Lords, all those things could be done. It would need a certain amount of careful drafting, but it is not beyond the wit of the Parliamentary draftsmen to achieve that purpose or of putting it beyond all doubt if they are instructed to do so. In reply to this debate I would earnestly ask the noble Lord to say that he will take this back. He recognises the justice of the case. He recognises, and indeed in his language it was almost instinct, I though, that doubt must be removed from the language as it is at the moment. I hope he will ask Parliamentary counsel to draft something to remove that doubt in its entirety.
LORD DRUMALBYN: My Lords, the noble Lord has asked me some questions, and, with the leave of the House, I will attempt to reply. The noble Lord has rested his case on the fact, as he says, that "reinstatement" has a different meaning from "re-engagement". I said that so far as I knew "reinstatement" was not used in an Act of Parliament. "Oh", he said, "but it was used in a Bill." How was the word "reinstated" defined in that Bill? It was defined as being re-engagement by the same employer
or by a successor or associated employer. If I had any doubt (and I assure noble Lords that I went into it in exactly the same questioning spirit as they have done and probed it) about whether the draftsmen could still be mistaken after all the explanation he has given, I would take this matter back again. But I am quite satisfied, and I give this advice to the House, that the word "re-engagement" covers "reinstatement". Although noble Lords may think they know what "reinstatement" means, as I pointed out it has three clear meanings and it may have several others. Obviously, if we used it at all, it would have to be defined. It is certainly not excluded by the word "re-engagement" as the definition that I have referred to says. Really, my Lords, I would be less than honest with the House if I suggested that I would be able to get any change of opinion if I were to take this matter back. It has been very fully gone into, and I can assure noble Lords that there can be no doubt as to the construction that will be put on it.
3.47 p.m.
On Question, Whether the said Amendment (No. 85A) shall be agreed to?
Their Lordships divided: Contents, 69; Not-Contents, 102.

CONTENTS

Addison, V.

Gardiner, L.

Reay, L.

Archibald, L.

Garnsworthy, L. [Teller.]

Ritchie-Calder, L.

Ardwick, L.

Greenwood of Rosendale, L.

Royle, L.

Beaumont of Whitley, L.

Henderson, L.

Rusholme, L.

Bernstein, L.

Hilton of Upton, L.

Sainsbury, L.

Beswick, L.

Hoy, L.

St. Davids, V.

Birk, Bs.

Hughes, L.

Samuel, V.

Blyton, L.

Jacques, L.

Segal, L.

Boothby, L.

Janner, L.

Shackleton, L.

Brown, L.

Kennet, L.

Shepherd, L.

Buckinghamshire, E.

Kilbracken, L.

Shinwell, L.

Burntwood, L.

Leatherland, L.

Silkin, L.

Burton of Coventry, Bs.

Lee of Asheridge, Bs.

Slater, L.

Carnock, L.

Lindgren, L.

Soper, L.

Champion, L.

McLeavy, L.

Sorensen, L.

Collison, L.

Maelor, L.

Stocks, Bs.

Cooper of Stockton Heath, L.

Nunburnholme, L.

Stonham, L.

Crook, L.

Pargiter, L.

Stow Hill, L.

Davies of Leek, L.

Peddie, L.

Summerskill, Bs.

Delacourt-Smith, L.

Platt, L.

Taylor of Gryfe, L.

Diamond, L.

Plummer, Bs.

Taylor of Mansfield, L.

Douglass of Cleveland, L.

Popplewell, L.

Wells-Pestell, L.

Gaitskell, Bs.

Raglan, L.

White, Bs. [Teller.]

NOT-CONTENTS

Aberdare, L.

Allerton, L.

Balfour of Inchrye, L.

Aberdeen and Temair, M.

Atholl, D.

Barnby, L.

Ailwyn, L.

Balerno, L.

Belhaven and Stenton, L.

Albemarle, E.

Balfour, E.

Belstead, L.

Berkeley, Bs.

Goschen, V. [Teller.]

Mowbray and Stourton, L.

Bessborough, E.

Greenway, L.

Nelson of Stafford, L.

Boston, L.

Grenfell, L.

Nugent of Guildford, L.

Bridgeman, V.

Gridley, L.

Oakshott, L.

Brooke of Cumnor, L.

Grimston of Westbury, L.

O'Neill of the Maine, L.

Brooke of Ystradfellte, Bs.

Hacking, L.

Rankeillour, L.

Burton, L.

Hailes, L.

Robbins, L.

Caithness, E.

Hailsham of St. Marylebone,

Roberthall, L.

Camoys, L.

L. (L. Chancellor.)

Rochdale, V.

Carrington, L.

Hankey, L.

Ruthven of Freeland, Ly.

Cawley, L.

Hanworth, V.

St. Aldwyn, E.

Clwyd, L.

Hatherton, L.

St. Helens, L.

Colgrain, L.

Hives, L.

St. Just, L.

Conesford, L.

Hood, V.

St. Oswald, L.

Cork and Orrery, E.

Hylton-Foster, Bs.

Sandford, L.

Craigavon, V.

Ilford, L.

Sempill, Ly.

Cranbrook, E.

Jellicoe, E. (L. Privy Seal.)

Sinclair of Cleeve, L.

Crathorne, L.

Kemsley, V.

Stamp, L.

Daventry, V.

Kilmany, L.

Stonehaven, V.

Denham, L.

Latymer, L.

Strang, L.

Derwent, L.

Lauderdale, E.

Strathcarron, L.

Drumalbyn, L.

Long, V.

Strathclyde, L.

Dundee, E.

Loudoun, C.

Tenby, V.

Eccles, V.

Lucas of Chilworth, L.

Teynham, L.

Effingham, E.

MacAndrew, L.

Vivian, L.

Elliot of Harwood, Bs.

Macleod of Borve, Bs.

Wakefield of Kendal, L.

Emmet of Amberley, Bs.

Mancroft, L.

Ward of Witley, V.

Ferrers, E. [Teller.]

Milverton, L.

Willingdon, M.

Ferrier, L.

Monckton of Brenchley, V.

Windlesham, L.

Fortescue, E.

Morrison, L.

Wrottesley, L.

Fraser of Lonsdale, L.

On Question, Amendment agreed to.

HOUSING FINANCE
3.55 p.m.
THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF THE ENVIRONMENT (LORD SANDFORD): My Lords, with the permission of the House I should like now to repeat a Statement, which is being made in another place by my right honourable friend the Secretary of State for the Environment, on the reform of housing finance in England and Wales. The Statement is as follows:
"In my Statement of November 3 I informed the House of the broad principles of our reform of housing finance. We have discussed the details of our plans with the local authority associations and the voluntary housing movement. The proposals which we have formulated in the light of these discussions are set out in a White Paper (Command No. 4728) which my right honourable and learned friend the Secretary of State for Wales and I are presenting to the House. Copies are now available in the Vote Office."
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And they are also in the Printed Paper Office of your Lordships' House. The Statement continues:
"For the first time in our history there will be a national rent rebate scheme for all unfurnished tenants under which a rent rebate or allowance will be available to those tenants who need help to pay a fair rent for the house that they occupy. This will mean that 2½ million tenants in the private sector will for the first time have a rebate scheme available. It will mean also that council house tenants in authorities which do not at present have rent rebate schemes—that is, almost 40 per cent. of all authorities—will now be covered by a scheme.
"Let me give an example. Take a council house tenant with a wife and two children who lives in a house with a fair rent of £4 a week. If his gross income is £25 a week, he will then get a rebate that will reduce his rent from £4 to about £2·70 a week. For those on very low incomes in relation to their family responsibilities, the scheme will provide a full rebate of rent, so that they will pay no rent at all. When the scheme is introduced, many council and private tenants will meet less of the rent of their dwelling than before.

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"The White Paper proposes the replacement of the existing subsidy system by a new system to give a fresh stimulus to housing authorities and associations who need to go on building and to clear slums. If an authority incurs a deficit on its housing revenue account because it builds new houses for people now living in slums, Exchequer subsidies will meet about 75 per cent. of the deficit. In addition, if the authority makes a loss on the slum clearance operations itself, an entirely new slum clearance subsidy will meet 75 per cent. of that loss. In order to give an immediate momentum to slum clearance, we have decided that this new subsidy should be retrospective to the beginning of the present financial year.
"I have already announced in my statement of November 3 that the fair rent principle will be applied to local authority dwellings and extended more rapidly to private controlled tenancies. The White Paper now makes it clear that the rent increase for council dwellings which are now below the fair rent will be phased in annual steps. The average annual increase will be 50p a week, subject to transitional arrangements for the period up to March 31, 1973, which are explained in the White Paper. When a private tenancy passes out of rent control and the registered fair rent is substantially higher, the increases in the rent of the tenancy will be phased in three equal annual instalments.
"The Government intend to introduce a Bill early in the next Session of Parliament to give effect to the proposals in the White Paper. These proposals will create a system of housing finance which is fair to all concerned and which concentrates help on people and areas in need.
"My right honourable friend the Secretary of State for Scotland will be presenting a White Paper to-morrow which will contain his proposals for the reform of housing finance in Scotland."
My Lords, that is the end of the Statement.
LORD GREENWOOD OF ROSSENDALE: My Lords, we are all grateful
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to the noble Lord for repeating the Statement for your Lordships' consideration. I have no doubt that the Under-Secretary will agree with me that this is a highly complicated subject. It was because of the complexity of the problem that I asked for a study of housing finance to be made, but I must confess that I am rather shocked at some of the uses to which the Government are putting the work which has been done. I have no doubt that all your Lordships would agree that subsidies should be directed to those in greatest need. That, of course, was why we increased the subsidy and embarked upon a programme of priority housing areas. Although some tenants will benefit from what the noble Lord has suggested, a large number, in both the public and the private sector, will not, and the burden which falls upon them will be a good deal heavier than the Labour Government would have found tolerable. But at the moment, until we have studied the White Paper, it is difficult to quantify the effects.
I should like to ask the noble Lord three questions. First, is not this Statement rather a breach of faith with those local authorities that have embarked upon considerable housing programmes on the basis of the housing subsidies which existed at the time when they decided upon those programmes? Secondly, is not the imposition of a national rent rebate scheme a further erosion of the discretion of local authorities?—which I believe to be a clear breach of the pledges that the Conservative Party gave to the country and to local authorities at the last Election. It does, of course, mean a great extension of means testing. Lastly, is the noble Lord able to give us any indication of the effect these proposals will have on the size of the local authority house-building programme? Those are the questions that I put to the noble Lord, but perhaps I may conclude by expressing the hope that we shall have an early opportunity of debating this subject, in the hope that we may influence the Government's thinking on these matters before they embark on legislation.
LORD SANDFORD: My Lords, I am grateful for those comments from the noble Lord, and I should particularly like to pay a tribute to the work done by him and his Administration on which we are now building: because it was the

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noble Lord's Administration that introduced fair rents; and fair rents lie at the base of the whole of this reform. The noble Lord said that heavier burdens will be laid on tenants, but I would point out to the House that, if this is so, those burdens are going to be removed from the shoulders of those least able to bear them by the introduction of rent rebates and rent allowances, which were not available to those weaker shoulders when, under the previous Administration, increases were permitted to fair rent levels.
As to the statement about a breach of faith, the total scale of subsidy will remain at about the level that it is now, but it was not possible to introduce changes as radical as this without altering its application. What has happened now is that, as a result of this reform, it will be possible for local authorities to concentrate the help on the people who need it and in the areas which need it. To that extent, I would not agree that this is an erosion of the responsibilities of local authorities. It is quite true that we have here a nationally designed scheme. But it will be administered locally and, as a result of the changes, those authorities that particularly need to accelerate the clearance of slums and to relieve overcrowding will be provided with greater resources with which to do it. I can certainly confirm that their house-building programmes will now be able to go forward at an accelerated pace. As to a future debate on this subject, this would certainly be welcome, but the arrangements will have to be made through the usual channels.
LORD GREENWOOD OF ROSSENDALE: My Lords, may we take it, from what the noble Lord has said, that he is saying that this is a breach of faith, and that the Government had no alternative but to embark on a course of action which did mean breaking faith on the promise that had been given? Is he admitting, too, that this does in fact limit the discretion of local authorities? That is the only interpretation that I think can be put upon it. If the noble Lord believes that this is going to mean an increase in the council house-building programme, can he say what figure the Government are aiming at in that field?
LORD SANDFORD: My Lords, I think the noble Lord will see when he reads the White Paper that the overall level
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of subsidies now available to local authorities will remain available but it will be possible to concentrate them on the people and the areas that need them, instead of spreading them in an indiscriminate manner.
LORD BROOKE OF CUMNOR: My Lords, I welcome my noble friend's Statement, and also Lord Greenwood's suggestion that we should debate this matter, because until we have read the White Paper it is a puzzling and complex Statement to take in. But can my noble friend think of any reason why anybody should be shocked at the extention of a right to rent subsidies or of rebates to all tenants, whether council tenants or private tenants, to be given in accordance with their needs, but not beyond their needs?
BARONESS EMMET OF AMBER LEY: My Lords, the fact that 2½ million people in the private sector are for the first time to be given a debate is extremely welcome, and it is such an important matter that I should like to ask my noble friend in what way this will be made known to them, so that they can take advantage of the reform, and also to those who are in council houses among the 40 per cent. of local authorities that do not as yet practise a rent rebate scheme. I think publicity is of immense importance.
LORD SANDFORD: My Lords, I am grateful for that question from my noble friend. There will be a statutory obligation on local authorities and private landlords to inform their tenants of their rights under these arrangements. Broadly speaking, local authorities will have to notify their tenants in writing of the circumstances in which they will be eligible for rebates. This has to be repeated once a year and in any case on a first tenancy, and on any change of rent. In the case of private landlords, the relevant information has to be inserted, within four weeks, in any rent book issued on or after January 1, 1973. I am referring to extracts from the White Paper. It is all set out more fully in the White Paper.
LORD HUGHES: My Lords, the last few words of the Statement which the noble Lord repeated made a reference to a further White Paper to-morrow from the Secretary of State for Scotland. I take it that that will be accompanied by a Statement made in another place by the

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Secretary of State, and that that Statement will be repeated in your Lordships' House to-morrow.
LORD SANDFORD: My Lords, that would certainly be my assumption. My precise words were that:
" My right honourable friend the Secretary of State for Scotland will be presenting a White Paper tomorrow."
LORD STONIIAM: My Lords, can the noble Lord say whether any estimate of the net additional cost to the Treasury has been made of these proposals; and, if so, what it is?
LORD SANDFORD: My Lords, I think I said in answer to a question from the noble Lord, Lord Greenwood of Rossen dale, that the overall scale of subsidy remains roughly where it is. The alarming increase which was in prospect will be curbed, and, through this whole new system, the subsidies available will be concentrated on the areas where they are needed—in slum clearance, and increased house-building—and on the people who need help.
LORD STONHAM: My Lords, does that mean that there will be no additional net cost to the Government? Is it a case of robbing Peter to pay Paul?
LORD SANDFORD: No, my Lords; it is a question of concentrating the subsidy where it is most needed.

INDUSTRIAL RELATIONS BILL
4.9 p.m.
Report stage resumed.
LORD DRUMALBYN: My Lords, with the permission of the House, I should like to make a personal statement, because I am afraid that I misled the House, quite inadvertently, by something that I said. I said words to the effect that "reinstatement" was defined in the Labour Party's Bill as re-engagement of the employee either by the employer by whom he was dismissed, or by the successor of that employer, or by an associated employer. I have been able to refresh my memory from the exact text since then and I find that that is not accurate.
What I should have said was that there are two things there plainly: first, re-engagement of an employee either by the
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employer by whom he was dismissed or by a successor of that employer, or by an associated employer; or, second, where re-engagement does not take place, then under that Labour Bill an order to be made for reinstatement in the employment from which he was dismissed either in the position he held immediately before the relevant date or in a different position which in the opinion of the tribunal would be reasonably suitable. My Lords, I apologise unreservedly to the House for having made this statement.
LORD DIAMOND: My Lords, I do not know whether it is your Lordships' practice for somebody on this side to rise and say how grateful we are to the noble Lord for what he has said, but I should like to do so.
LORD STOW HILL: My Lords, my noble friend Lord Diamond having said that, and I having wanted to say it very much but thinking I should not be in order to make an observation on a personal statement, I was going to move the next Amendment in order to give myself the opportunity of saying how very grateful I am to the noble Lord and how I honour him for having got up immediately to correct his mistake. It is extremely easy to make mistakes of that kind and, having known him for a great many years as a Member of Parliament, I may say that it is exactly what I should have expected from him.
THE LORD CHANCELLOR: My Lords, I understand that Amendment No. 85B is not moved.
LORD STOW HILL: My Lords, I did say that: I had intended to move it in order to make the observation that I made earlier regarding the noble Lord's statement, but I did not know whether, if I did so, I should be going against the rules of the House. But I said that I thought there was no useful point in moving the next Amendment.
THE LORD CHANCELLOR: They are on the same point: I thought that we were discussing them together.
4.12 p.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 85B:
Page 81, line 12, after ("so") insert ("reinstated").
The noble Lord said: My Lords, I am in your Lordships' hands. The Amendment is down in the names of Lord Diamond and Lord Stow Hill. My noble friend has explained why he was proposing to move this Amendment, which was in order to offer courtesy to the noble Lord, Lord Drumalbyn. I am proposing to move this Amendment in order to continue discussion of the substance of the matter now that a totally new situation has emerged. I hope that will be in order.
I beg to move this Amendment. There is no need for me to repeat the arguments that went on on the previous Amendment. We had reached the situation where both sides of the House were agreed that reinstatement would be a very good thing to include in the Bill if it could be so prescribed, and difficulty arose because we were informed it had never been used in a legal context. Then my noble friend Lord Stow Hill produced the legal context in which it had been used. That then was explained away, erroneously, by the noble Lord, Lord Drumalbyn.
Now let me, if I have your Lordships' patience, recite to your Lordships' House what in fact the text provided, because to every fair-minded person I think it makes absolutely clear that not only is "reinstatement" a word which has been used many times in a Bill which provides for exactly what the Government want to provide in this paragraph, but that without the word "reinstatement" it is obviously going to have a different effect. Clause 37 of the Industrial Relations Bill which received a First Reading, is the clause where this word is first used. I shall read only the part of it that is relevant. If your Lordships wish me to read it all I shall be pleased to do so. Clause 37 says:
"Where, on reference of a claim to a tribunal under this Part of this Act, the tribunal finds that the employee was unfairly dismissed…"
that is what we are considering—
"and that he has not been re-engaged as mentioned in subsection (2) of this section "—
and so on.
May I refer now to what subsection (2) says in relation to re-engagement:
"(2) In the preceding subsection the reference to the re-engagement of an employee as mentioned in this subsection is a reference to
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the re-engagement of the employee either by the employer by whom he was dismissed or by a successor of that employer or by an associated employer."
So we now get back again to the first part—
"the tribunal finds that the employee was unfairly dismissed and that he has not been re-engaged as mentioned in subsection (2) of this section, the tribunal

(a) shall make an order for reinstatement under section 38 of this Act if, in accordance with that section, reinstatement is the appropriate remedy or…"—

something else, or compensation.
We now therefore turn to Clause 38 and this describes an order for reinstatement. This clause is about 20 lines long, and with your Lordships' permission, I think I must read it in order to make the point clear:
"For the purposes of this Part of this Act reinstatement is the appropriate remedy where—

(a) the tribunal is of the opinion that in the circumstances it would be practicable for the employee, if he agreed, to be reinstated in the employment from which he was dismissed, either in the position which he held immediately before the relevant date or in a different position which in the opinion of the tribunal would be reasonably suitable to him, and

(b) the employee agrees to be so reinstated.

(2) Before determining whether it would be practicable for the employee to be reinstated as mentioned in subsection (1)(a) of this section, the tribunal shall take into account any representations relating to reinstatement of the employee which may be made to the tribunal by or on behalf of the employer at the hearing or which in accordance with industrial tribunal regulations have been made by or on behalf of the employer before the hearing.
(3) Where the tribunal is of the opinion that it would be practicable for the employee to be so reinstated, the tribunal—

(a) shall indicate to the employee whether the reinstatement would be in the position which he held immediately before the relevant date, or, if it would be in a different position, shall indicate to him the nature of that position…"

and so on.
Subsection (4) reads:
"An order for reinstatement under this section shall require the employer, on such date as may be specified…to reinstate the employee in his employment and shall indicate…the position in which the employee is to be reinstated."
My Lords, I have read practically the whole of that clause and the relevant

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part of the preceding clause. It is absolutely clear that "reinstatement" is repeatedly used in this clause to describe a situation which all of us on this side of the House are anxious to achieve and which we believe that the Government are also anxious to achieve. Therefore I have no alternative but to put the view again before the noble Lord and to ask him whether, in the light of the inadequate information which he had at his disposal when he rejected the earlier Amendment and in the light of the additional information which is now available to him, he will be good enough to reconsider the matter between now and Third Reading. Here is a really important issue. We are all trying to achieve the same thing. The noble Lord thought there was no method of doing it. We found that impossible to believe, and we found an example by which it could be fully and satisfactorily done. I hope that the noble Lord will give this matter further consideration.
THE EARL OF BALFOUR: My Lords, I wish to say only a few words. First of all, I think that the apology and explanation given by my noble friend Lord Drumalbyn made the position even more clear than it had appeared from his earlier statement. We are dealing in this clause with the unfortunate man who has been dismissed. He has then gone to the trouble of going to the courts. The counts have investigated the matter and come to the question of either trying to get that person back into employment with his previous employer or leaving the man unemployed, with his compensation. If the word "reinstatement" is to be taken to its fullest extent, it means then that the courts have the choice of either arranging for the employer to pay that man compensation or that he is reinstated in exactly the same job, making the whole position extremely difficult. If, on the other hand, the courts have the wider opportunity of encouraging the employer to re-engage that man—if necessary at the same salary, but doing a slightly less important job, or something like that—I feel that this goes a very long way towards getting that man back in employment. From what has been said by the noble Lords opposite, it appears to me that they would rather have the person either reinstated completely
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or left unemployed, with compensation. This is not the sort of thing that I should like noble Lords on this side of the House to support.
4.22 p.m.
LORD DRUMALBYN: My Lords, as I said before, I sympathise with the objectives of the noble Lord opposite, but on this occasion I do not sympathise with his logic. He will remember—in fact he read it out—that the Labour Government's Bill, which got only as far as First Reading, included the word "reinstatement". There is no difference between us here. I said that, so far as I knew, and I was told, the word had not been used in any Act of Parliament. It had been used in a title and in a rubric and it has been used in a Bill. That is the first point. The second point is that the Labour Government's Bill provided for reinstatement by order of a tribunal. The present Bill does not provide for reinstatement by order; it provides for re-engagement by recommendation, a recommendation for re-engagement. The noble Lord read out the two paragraphs concerned, and the alternatives were perfectly clear. First of all, there was the possibility that the employer would reengage or that a successor of that employer would re-engage, or that an associated employer would re-engage. Secondly, if that was not done, there could be an order for reinstatement in the same employment—that is, in the employment from which he was dismissed—either in the position which he held immediately before the relevant date or in a different position.
My Lords, is it not abundantly clear that this proves the point I was making: that, without any doubt whatsoever, reinstatement is included in "re-engagement"? Either the man could be re-engaged by the same employer or a different employer—that is an associated employer or a successor—or he would be reinstated in the employment from which he had been dismissed, either in his original position or in a different position. This shows that reinstatement has at least two meanings, even under this Bill, and can have more. So it is abundantly clear that reinstatement is included in re-engagement. I invite the House to follow that logic rather than the logic of the noble Lord in this matter.
LORD DIAMOND: My Lords, we cannot pursue this point endlessly. I regret

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that the noble Lord has not seen fit to give himself time to reconsider this matter, especially as he says it is his view, and the view of the Government, that reinstatement, as the word is used in common parlance, should be a remedy open to the tribunal. It may be reinstatement in the original position or in some other position, but certainly reinstatement. I am sorry that he has not given himself time to think about it further. I do not wish to delay progress of the Bill by dividing the House again. All we can say is that we are doing the best we can to make it clear to all concerned, and we hope the Government will co-operate to make clear that the words are intended to include reinstatement and that it is the Government's desire, as Hansard will record, that it should be so interpreted. In those circumstances I do not think my noble friend Lord Stow Hill wishes to comment further in this debate.
LORD PARGITER: My Lords, there is one point I should like to make, before we finally withdraw. I should like to be clear on the tribunal's rights with regard to compensation. Assuming that the tribunal can order an employer or recommend an employer to re-engage a person, and if it is shown that this involves a considerable loss, would the tribunal be entitled to order compensation as well as re-engagement?
LORD DRUMALBYN: My Lords, perhaps I may answer that point. The tribunal cannot order; in this case it makes a recommendation.
LORD DIAMOND: My Lords, as I was saying, I think it would be appropriate if I sought your Lordships' permission to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 85C:
Page 81, line 42, after ("and") insert ("where the organisation is a trade union or an employers' association, that it was taken against the person who presents the complaint, and (whether the organisation is a trade union or an employers' association or not) that the action specified in the complaint").
The noble Lord said: My Lords, earlier debates have demonstrated that there is a wide measure of agreement in all parts of the House that the right of complaint about breaches of rules or
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guiding principles by trade unions or employers' associations should be restricted to the complainant party, and that complaints by extraneous parties should be excluded. Amendments to Clauses 81 and 82 already accepted by the House secure that effect so far as complaints made to the Registrar are concerned. This Amendment extends the same principle to complaints brought to an industrial tribunal.
I hope that noble Lords will agree that it is unnecessary to go over those arguments again, but there is one point that I should make to your Lordships. It will not have escaped your Lordships' attention that the clause as amended, although restricting the right of complaint against a registered organisation to injured parties, imposes no such restriction on complaints against unregistered organisations. So, where the other conditions are satisfied, the complainant will not be required to show that the action of an unregistered organisation was taken against him before his complaint under this clause can be heard.
We can see no means of avoiding this distinction. We would have done so if we could. If the right of complaint were restricted to the party against whom the action was taken, certain breaches of rules by unregistered organisations could not be complained of at all. For example, it is very doubtful whether any individual member could show that the action of his organisation in improperly removing or failing to appoint an official was directed against him. Similarly, probably no individual would or could complain of a rule specifying the manner in which the rules of the organisation can be altered or revoked was breached.
I think noble Lords on all sides of the House would agree that it would be wrong to allow such a loophole to exist, and so we have reluctantly concluded that we cannot restrict the right of complaint to injured parties so far as unregistered organisations are concerned. Registered organisations do not present the same problems because in Clause 83 the Registrar has power to investigate on his own initiative breaches of rules or guiding principles, and that is a safeguard. In practice I do not think this will cause unregistered organisations undue difficulty or embarrassment. There

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must have been a breach of rules or guiding principles before there can be a complaint—or an alleged complaint, at any rate—and the tribunal will be able to award costs where frivolous or vexatious cases are brought. This should deter malcontents and dissidents who are trying to harass unregistered organisations without due and reasonable cause. I beg to move.
LORD STOW HILL: My Lords, I feel a little puzzled by what the noble Lord has just said. I cannot understand why there should be that distinction between a registered organisation and an unregistered organisation. In the case of a registered organisation the complaint under Clause 66 can only be made by a person against whom the action is directed, but not in the case of an unregistered organisation. May I now put the question to the noble Lord in this form: suppose we have a registered and an unregistered organisation and their rules are precisely the same. The only difference is the name, otherwise the words from beginning to end are precisely the same. A member of the registered organisation who wishes to complain under Clause 66 that an action has been taken against him which infringes the general principles of Clause 65 proceeds under Clause 107. A member of an unregistered organisation looking at precisely the same rules and deciding that those rules involve an infringement of the principles of Clause 66 against him presumably also uses the same clause. As I read Clause 66 it does not relate only to a registered trade union: it includes an unregistered trade union or an unregistered organisation of workers.
I am sure it is entirely my fault, but I should be grateful if the noble Lord would make the position a little clearer to me. I did not follow it, and although I cannot say that I feel violently about it I think that if we are making a change the reason for that change should be made clear. It seems to me that a member of an unregistered organisation might just as well be a person against whom an action is taken as a member of a registered organisation. I am sure it is my fault that I do not understand, and I shall be glad if the noble Lord will explain it a little more fully in his reply.
LORD DRUMALBYN: My Lords, perhaps I can try again. The difference between the member of the registered organisation and the member of the unregistered organisation is this: a member of a registered organisation has a choice; he can make his complaint either to the Registrar or to the tribunal, but in either case it must be a complaint about action taken against him. In the case of the registered organisation the Registrar himself has the power to investigate other cases, so he can investigate cases that are not taken against any particular person. But in the case of the unregistered organisation, if we were there to confine the right to complain only to actions taken against an individual, then in the case of those actions that were of a more general character, for example faults on voting procedures, and the like, there would be no means at all of their being brought to the tribunal. Therefore, so far as unregistered organisations are concerned we cannot confine such cases to actions against the person making a complaint. We have to allow it to go wider and allow complaints to be brought by persons against whom action has not been taken personally—or should I say whom action has not prejudiced in some way in their personal capacities. I hope I have made it clear.
LORD STOW HILL: I thank the noble Lord.
Clause 110 [Complaint of breach of duty under section 57]:
THE LORD CHANCELLOR: My Lords, I beg to move Amendment No. 85D, which is a purely drafting Amendment.
Amendment moved—
Page 84, line 5, leave out ("authorised") and insert ("determined").—(The Lord Chancellor.)
4.38 p.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Amendment No. 85E:
After Clause 111 insert the following new clause—
Application to Industrial Court for declaration with respect to collective agreement
".—(1) Any party to a collective agreement in writing may make an application to the Industrial Court for a declaration with respect

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to any question relating to any provisions of the agreement.
(2) Any such application shall specify the question or questions on which a decision of the Industrial Court is sought and, with respect to each such question—

(a) shall indicate the provisions of the collective agreement to which it relates, and

(b) shall contain, or be accompanied by, a statement of the facts in consequence of which it is claimed that the question arises.

(3) An application under this section—

(a) shall not be entertained by the Industrial Court if it relates to a collective agreement which contains a provision (however expressed) stating that the agreement is intended not to be legally enforceable, or

(b) if it relates to a collective agreement which contains a provision (however expressed) stating that part of the agreement is intended not to be legally enforceable, shall not be entertained by the Industrial Court in so far as it relates to that part of the collective agreement.

(4) On an application under this section the Industrial Court, having regard to its findings in respect of the facts stated by the applicant and in respect of the construction and effect of the provisions of the collective agreement to which the application relates, may, if the Court considers that it would be just and equitable to do so, make such declaration with respect to any question specified in the application as the Court considers appropriate."
The noble and learned Lord said: This is a fairly substantial new clause, and the purpose and effect of it will be to give a new jurisdiction to the Industrial Court in respect of written collective agreements which are enforceable. It arises from the two speeches made by the noble and learned Lord, Lord Wilberforce, and the noble Lord, Lord Tangley, in the course of the Committee stage, and it is one of two or three Amendments which have been made in response to the criticisms they then put forward. The position under the Bill as it stands at the moment is that one can go only for a declaratory judgment declaring the rights of the parties under an agreement if one goes by way of complaint of something that the other party has done wrong. We think this is unreasonable and it ought to be possible to get a declaration of right by either one or both parties to an enforceable agreement before relations have deteriorated to the point at which the parties are at arms' length. Of course those who do not wish to invoke the aid of the Court can instead agree to voluntary arbitration arrangements of their own for the same purpose, and in some cases the wiser parties already do so. They can continue to do so under the terms of
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this Amendment. As I have said, it is limited to written collective agreements, and those which are not enforceable and those which contain disclaimer clauses are excluded under the terms of subsection (3) of the new clause, paragraph (a) applying to those where the disclaimer is general and paragraph (b) applying to the cases where the disclaimer is partial.
Subsection (4) makes it clear that the jurisdiction which is conferred by the new clause is discretionary; that is to say, the Court will make its declaration only if it is just and equitable to do so. That corresponds to the existing jurisdiction of the High Court in such cases, where the remedy by way of declaration is discretionary and the discretion is not always exercised, although in recent years parties to agreements have found it more and more convenient to utilise the power of the Court to make declarations of right in such cases where they are not hypothetical or academic or premature. It is additional to the procedure by way of complaint which already exists, and I hope it will be found convenient and useful to the parties to collective agreements where these are enforceable under the Act. I beg to move.
LORD STOW HILL: My Lords, I should have thought this was an extremely valuable new jurisdiction, and I quite agree, if I may say so, with the noble and learned Lord that it obviously will conduce to peaceful relationships, in that it will enable the parties to collective agreements to ascertain how they stand before relations become strained, and I would wholly support the Amendment. I should just like to ask one question of the noble and learned Lord. It may be that I have missed something, but the new clause is clearly designed, as the noble and learned Lord has said, to apply to collective agreements which are legally enforceable; that is to say, it excludes collective agreements which have a provision stating that the agreement is not to be legally enforceable. What I am looking for and have not yet discovered is the following. Clause 34, which relates to collective agreements which are made enforceable unless they are expressed not to be enforceable, only relates to collective agreements made in writing after the commencement of this Act. In other

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words, collective agreements made before the commencement of this Act were probably unenforceable in any event because of Section 4 of the Trade Union Act 1871, or even if they were not expressly made unenforceable by virtue of that section were unenforceable by their nature, on the ground that the parties did not intend to enter into contractual relationships.
I would have thought, therefore, that in the new clause there would be some provision limiting the application to collective agreements entered into in writing after the Act was brought into force. I looked at the definition of a collective agreement in Clause 162, to see whether there were some words which imported the provision in Clause 34 that the collective agreement must be one entered into after the commencement of the Act. I cannot find language in that new clause; it may be that there is some; I would be grateful if I might have my attention drawn to it if there is. If I am right in thinking there is not any such language in that new clause, and if I am right in assuming, as I do from what the noble and learned Lord said, that he intends the new clause to apply to collective agreements made enforceable by Clause 34, would it not be appropriate somewhere in the new clause to insert a provision that it should only have application to collective agreements in writing made after the Act comes into force? It may be I have missed something, but I make the point in case it has been overlooked.
LORD PARGITER: My Lords, there is one point I should like to be clear about. One assumes that the noble and learned Lord's reference to the Industrial Court would in effect mean that their decision would be legally enforceable. If that is so, I can see the logic of it not being applied to agreements which are not legally enforceable, because obviously if something is basically not enforceable it would be very difficult to enforce the part. I would have thought there might be some provision by which agreements not legally enforceable might be referred to the Industrial Court, or a tribunal, with a view to interpretation, with a view to avoiding difficulties that might arise in unenforceable agreements. I should like the point, whether that is so, cleared up. If the decision of the Industrial
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Court is not legally enforceable, there seems to me no reason why it should not apply to any body or person, whether it is an agreement legally enforceable or not.
THE LORD CHANCELLOR: My Lords, I will consider, if I may, the question raised by the noble Lord, Lord Stow Hill. I had assumed that because there is the presumption against retrospection in all legislation that would be enough, but the point is obviously worth considering and I will consider it. I cannot tell him what will be the outcome.
LORD STOW HILL: My Lords, I am very grateful to the noble and learned Lord.
THE LORD CHANCELLOR: My Lords, the question raised by the noble Lord, Lord Pargiter, is rather an interesting one. The new clause as drafted is clearly designed not to refer to agreements not legally enforceable. An order when made will be binding on the parties, but of course it is not directly enforceable because it will simply state what the rights of the parties are and will leave it to the parties to discharge their obligations under the rights so defined. If they break the agreement, the agreement will be interpreted in the light of the declaration, and the breach of the agreement would be a proper subject of disputatious proceedings which would yield in the end an enforceable judgment. One of the virtues of a declaratory judgment is that it does not imply necessarily an adverse order, except perhaps as to costs, between the parties disputing the rival interpretations of the agreement.
As regards the possibility, which is a slightly different one, which Lord Pargiter raised that you could refer to the Court questions as to the meaning of agreements which are not legally enforceable, clearly this is not within the terms of the new clause. I do not know of any fundamental reason why, if an agreement was capable of a precise construction—which many such agreements are not—you should not refer those matters to the courts, but at the moment I think I am right in saying the courts would decline jurisdiction. They would say that they could not entertain proceedings relating to provisions which did not give rise to legal obligations, because they are, after all, courts of law, and certainly this new

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clause does not extend the jurisdiction of the courts to cover this class of case. What it does is to extend to the Industrial Relations Court the jurisdiction at present inherent in the High Court to make declaratory judgments even though no complaint has been made of breach of contract. It is an interesting question, but the answer is that it is not designed to apply to non-enforceable agreements, and I think it might be controversial if it were so designed.
Clause 112 [Power to confer jurisdiction on industrial tribunals in respect of damages for breach of contract of employment]:
THE LORD CHANCELLOR: My Lords, I should at this stage indicate, as I have to the noble Lord, Lord Stow Hill, who I think is handling Amendment No. 85G, that I have a Manuscript Amendment in my noble friend's name designed to deal with the same point, but in the meantime I must call No. 85G.
4.50 p.m.
LORD STOW HILL LORD STOW HILL had given Notice of his intention to move Amendment No. 85G:
Page 84, line 44, at end insert—
("and
(c) in relation to claims for any payments due under a contract of employment")
The noble Lord said: My Lords, I am very grateful to the noble and learned Lord. The Manuscript Amendment which he has referred to does precisely deal with the point which I sought to raise with two Amendments, Nos. 85G and 85H. The general objective was that Clause 112, very sensibly, vests in the industrial tribunal a number of claims which might otherwise have gone to other courts, notably the county court. They are claims for damages. But there are also other claims which arise immediately under contracts of employment (holiday pay, and so on) which it was thought could very conveniently be combined with such claims for damages. The object of Amendments Nos. 85G and 85H was to include those claims in the claims which might go to an industrial tribunal. The
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noble and learned Lord, as he has said, in much more suitable and felicitous drafting, brought about precisely the result we had in mind in drafting the two Amendments. That being so, may I ask the leave of the House to not move Amendment No. 85G and, in due course, may I make a similar application in relation to Amendment 85H.
4.52 p.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Manuscript Amendment No. 85J:
Page 85, line 44, at end insert—
("and for the purposes of this section a claim for payment of any sum payable under a contract of employment shall be regarded as a claim for damages for breach of the contract, and any reference in this section to damages shall be construed accordingly.")
The noble and learned Lord said: As the noble Lord, Lord Stow Hill, explained, he put down a couple of Amendments which were designed to achieve the purpose of making it clear that a claim, for instance, for arrears of wages, would be amenable to the general terms of the clause. The point really is that technically a claim, for instance, for arrears of wages, or for liquidated sum by way of damages, might not be considered to be covered by the expression "damages" in the clause. This may be right. Indeed, when I first saw the noble Lord's Amendments I was briefed, as it were, to say that the word "damages" included it. But rather respectable legal authorities take a different view, and I am not sure that I do not myself. For that reason, I asked the draftsman to draft an Amendment which would be acceptable to him to achieve the result which the noble Lord had in mind. The present Manuscript Amendment is simply the draftsman's method of expressing the thoughts that lay behind Lord Stow Hills' previous Amendments. I have no particular views about the draftsmanship but, as it has come from the professional, I would naturally prefer it. I beg to move.
LORD STOW HILL: My Lords, I only rise to express my indebtedness to the noble and learned Lord the Lord Chancellor, and I hope that the House will accept the Amendment.
Clause 115 [General principles as to assessment of compensation]:
4.55 p.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 85F:
Page 87, line 41, leave out from beginning to end of line 44.
The noble Lord said: My Lords, this Amendment arises in the clause dealing with compensation, subsection (2) of which says:
"The loss sustained by the aggrieved party,…shall be taken to include—…
(b) loss of any benefit which he might reasonably be expected to have had but for those matters ".
The four following lines, which this Amendment seeks to remove, say,
"subject, however, to the application of the same rule concerning the duty of a person to mitigate his loss as applies in relation to damages recoverable under the common law of England and Wales or of Scotland, as the case may be."
All your Lordships are familiar with that duty in relation to damages. What I am advised is, first of all, that what we are concerned with here is not damages; and the point I want to put is that if these four lines were left in, the purpose of the clause would not be achieved in certain circumstances. One of the purposes of the clause is, I imagine, to deter discriminatory dismissals. Let us suppose that there is an unfair dismissal, which is clearly discriminatory, in circumstances in which there is a strong labour market, and the employee, carrying out his duty under these four lines, moves heaven and earth to get himself another job and succeeds in doing so over the weekend, shall we say, and finds himself engaged on the following Monday at a similar remuneration. Then, I suspect, under these principles there would be no compensation payable at all. There will have been a discriminatory, unfair dismissal, but there will be no compensation. I do not think that that is intended—I am sure it should not be intended. I am sure that would do nothing to discourage, in those rare cases where it might occur, discriminatory treatment by employers getting rid of an unwanted person for improper reasons, and improper under the terms of this Bill. I think the case is a clear one. I beg to move.
THE LORD CHANCELLOR: My Lords, the ordinary rule of law is that
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whether you are seeking damages or any other form of compensation you are not to make a profit out of somebody else's wrongdoing, but that you should be put in the same position as if the wrongful act had not been done. We have been discussing re-engagement and reinstatement for a long time, and that would be one way of doing it. Another way of doing it is by looking to see what the financial loss in each case has been and making it all up.
There are, of course, exceptional cases where the law allows vindictive damages for bad behaviour, or damages to compensate for injured feelings. I think they are becoming increasingly rare. The old breach of promise action is a very good example of this. There are cases where this is done, but it is pure compensation for wrongful, unfair industrial practices here; and the object is not to put the injured party into a better position than if the injury had not been inflicted, but in as good a position as if the injury had not been inflicted.
With respect to the argument of the noble Lord, Lord Diamond, if the injured party is the employer, he must then try to mitigate the effect on the workman. If the injured party is the workman, he must try to mitigate the penalty on the employer. But the fact is that it can be either in this case. I am surprised that he has not seen this. He took the case of wrongful dismissal, which I will come to in a moment; but this clause could, after all, operate to reduce the amount of compensation awarded against a trade union when, for example, an employer had complained to the court about an unfair industrial practice by the union, in consequence of which it had sustained a restriction of output or of some service it had contracted to provide. This might well indeed be a very considerable limitation upon the amount of compensation awarded against the union.
The principle is surely a just one and one should, I think, forget whether one side in a dispute is likely to gain by it rather than the other side. It cannot be right, for instance, when a workman has been dismissed unfairly, that he should deliberately refuse one job after another in order to "whack up" the compensation payable by his former employer. It also cannot be a just action by the former employer for him to sit upon the damage

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which a trade union may have inflicted upon him by an industrial practice which was wrong, in order to "whack up" the compensation which it may be compelled to pay, when he could be taking a perfectly reasonable series of steps to reduce the damage to himself by his own action. Both are unreasonable sets of actions and they should not be compensated, either under the existing law or under any law that I would consider just. If the noble Lord had said that these words were otiose and that without them the court would give effect to the very reasonable principle which I have been trying to describe, I am not sure what I should have said in reply. But now that he proposes to omit them, not because they are otiose but because they are offensive, I find myself opposed to his Amendment.
LORD DIAMOND: My Lords, the noble and learned Lord will not expect me to regard his last statement as a very persuasive or forceful argument. I take exactly what he said and I realise his difficulties, but with the greatest respect to the noble and learned Lord he has not met the difficulty that the legislation as proposed does not carry out Chapter 9 of the Donovan Commission's Report. It goes against the whole spirit of that. It may, in fact, be necessary to have an additional paragraph dealing exclusively with the case of the employer who seeks to get rid in a discriminatory way of an unwanted employee and suffers no penalty at all for doing so.
The noble and learned Lord said that nowadays there are very few cases indeed involving more than the damage suffered. We are not putting forward this Amendment in order to enable an employee to make a profit. We are not putting it forward in order to challenge the common sense proposition that everybody should mitigate their loss and should seek to look after themselves as far as possible, whatever has happened. We are putting this Amendment forward because the legislation, as drawn, offers no discouragement to discriminatory sacking of an unwanted employee, thereby committing an unfair practice. In the circumstances I have described, an employer could get rid of an unwanted employee at no cost to himself. I do not think that that is a satisfactory way of drafting the legislation, but I do not dispute that the legislation
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as drafted suits all the other circumstances which the noble and learned Lord described. I can only hope that the Government will bear this point in mind. I do not think I can press it any further than that, and in the circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.4 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 86:
Page 88, line 8, at end insert—
("Provided nevertheless that this subsection shall not apply to any proceedings on a complaint based on subsections (1) and (2) of section 5 or on section 22 of this Act."
The noble Lord said: My Lords, this Amendment relates to a comparatively small point, but it is not in any sense a Party point. It is what I ventured earlier to call a civil liberties point. I think it is of some importance, and it deals with an aspect of our affairs about which we should be extremely careful. The Amendment is sought to be made to subsection (3) of Clause 115, which provides as follows. Where the Industrial Court or industrial tribunal has to deal with a complaint (and that means any complaint under the Act, as it will be) and finds that the matters complained of,
"were to any extent caused or contributed to by any action of the aggrieved party in connection with those matters".
the Court may reduce, or indeed cancel, any sum which it might otherwise have awarded in order to compensate for any loss established by the complainant.
That is not a new concept in our legislation, although it is not one which is widely applied. But it is applied in the case of contributory negligence. The ordinary case of which one knows relates to street accidents. If you step off the pavement without looking right in front of an oncoming motor car, and you then sue the driver of the motor car for damages for injuries that you have sustained, the amount which the court may otherwise be disposed to award to you if you establish that the driver was negligent can be, and is, reduced by the court by taking into account your own contribution through your own neglect in not looking before you stepped off the pavement; and as a result you may get

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a very small sum indeed. It is that concept which is embodied in subsection (3) of Clause 115, and I do not complain at all of that in a general sense. What I seek to do by the Amendment is to say that that principle shall not apply when the Court is dealing with a complaint under Clauses 5 or 22; in other words, a complaint by a worker who asserts that his rights under Clause 5 have been infringed or, under Clause 22, that he has been unfairly dismissed.
May I look for a moment at the situation apart from the worker? When industrial action takes place between management and union, it often follows as the result of a long and complicated series of transactions, disputes and negotiations. I should have thought it was perfectly acceptable in principle that in that situation the Court should be entitled, if one party complains that the other is guilty of an unfair industrial practice to look also at the conduct of the complainant and take that into account. The Court has a general equitable jurisdiction and will try to do what is fair. In ordinary circumstances, unless some error creeps in, it will reach a just result which will balance the provocative conduct, if any, of the complainant against the wrongful conduct of the respondent. The situation is not really quite the same when one is considering the case of the worker, and I ask the House to say that the principle should be excluded when a worker is the complainant under either Clause 5 or Clause 22.
This matter was debated in Committee. I raised it and the noble and learned Lord the Lord Chancellor gave an answer which I have since considered very carefully. When I raised the matter, the criticism that I made of the wording of the Bill was that it was much too general, and too wide in scope. That is not a criticism that I am making at the moment. However, I went on to sayߞand this is an argument which I respectfully ask the House to consider again—that you might well get the case of a worker who was at a very serious disadvantage. For the purpose of my argument, I took what I frankly conceded was a rather extreme case. I took the case of a worker who makes himself thoroughly unpopular by disseminating unpopular doctrines. I
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took the case of a Maoist, or somebody whose hair was too long, or who made himself unpopular because of some personal habit which other people did not like.
My Lords, that, I agree, is rather the extreme case, and the noble and learned Lord, while accepting that one has a perfect right to use extreme examples to point an argument, would say that we should rely on the courts to arrive at a common-sense view. I entirely accept that, but the courts are put in particular difficulty when they have an obligation to consider provocative conduct. What are they to do in that situation? I submit that in our democracy we should be anxious to protect the unpopular person. People can become unpopular and disliked by their associates for reasons for which they are hardly to blame, for personal characteristics or personal views; and various things can be considered wrong about them according to ordinary judgment and ordinary taste. That may over a period of time produce a feeling of strong resentment—a very unjust feeling, but nevertheless most people suffer from it.
Society cannot come to their rescue as often as perhaps it ought. One ought perhaps to try to protect a person who has the misfortune to be disliked, but it is difficult to do so because in many situations there is no way of bringing help to such a person. But I suggest that it is going rather further than is wise to enact that when we get that sort of case the Court should have to look at any evidence or argument produced on the part of a man's employer to the effect that he had received a lot of representations—for example, that the man should be dismissed, or that he was a person whom his fellow workers could not get on with and they were trying to egg on the employer to get rid of him. That is not something which should be encouraged.
I submit that that is the kind of situation against which we should strive and we should go to the rescue of a person who finds himself in that position. That is all that this Amendment seeks to do. If it depended only on the extreme, unlikely case, I would not have ventured to move it, but I submit to the noble Lord, particularly in reply to the argument which he used and which I agree

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has force in it, that when you are dealing, not with the extreme case but with cases which do not involve any exceptional quality for which other people look on an individual with disfavour, and a person is unlucky enough to be unliked and becomes the victim of a campaign—round robin letters, or something of that sort—because his fellow workers want to get rid of him, or perhaps not his fellow workers but a foreman or shop floor manager or anyone else, we should not enable—or rather require, for this is not a question of enabling but requiring—the Court to take into account the fact that other people want to get rid of him. I submit that the principles of subsection (3) of Clause 115 should not be applicable when the Court is called upon to deal with a complaint by a worker, either under Clause 5, which sets out his general rights, or Clause 22, which enables him to bring a complaint in the event of his being unfairly dismissed. I beg to move.
5.14 p.m.
THE LORD CHANCELLOR: My Lords, I yield to no one in my desire to help people who are simply unpopular, because many people are unpopular for reasons which are wholly creditable to them, but this Amendment goes far beyond that. It is not, I think, a fair analogy to introduce the question of contributory negligence in common law. If somebody were to punch me in the face and break my false teeth, I daresay, if I were eager to bring an action at law—which most lawyers are not—I could get quite considerable compensation from him. I would get the cost of my false teeth, something for my pain and suffering and possibly something for the insult. But if the evidence was that I had insulted the other man first—made fun of his religion, his race or the colour of his skin, or even his political idea—I dare-say that most reasonable juries and most reasonable judges would reduce the amount and I should probably end by getting only the cost of repairing my false teeth.
That is really the only principle involved in this clause. Provocative conduct, either by an employee or by an employer, ought to be taken into account in assessing the amount of compensation. This is the principle which is adopted, and I should have thought, leaving legal
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questions aside, that it was a very sensible general line. The noble Lord, Lord Stow Hill, says, "All right; apply it to the employer, but we will not apply it to the workman in two cases, one under Clause 5 and one in the unfair dismissal case." I do not myself see why. I think that what is sauce for the goose is sauce for the gander, and in that I am strongly fortified by powerful and independent witnesses.
I am first entitled to call the noble and learned Lord, Lord Donovan, whom I am happy to see sitting on the Cross Benches, to my aid. I quote him sometimes when I agree with him, and sometimes when I disagree with him. In paragraph 553 of the Donovan Report this very situation is referred to in the case of unfair dismissal. The noble Lord definitely came down on this side. He said:
"The labour tribunal must, in our view, be free to take into account such circumstances as the nature of the employer's business, the employee's age, seniority and opportunities for alternative employment, the circumstances and manner of the dismissal, the extent to which the employee's actions were blameworthy and the effect of the dismissal on future pension rights and any other relevant considerations."
I have even more powerful witnesses on my side, because I think one can call in aid the Labour Government Bill which had a First Reading. Clause 41 of that Bill deals with deductions from the basic amount of compensation in cases of unfair dismissal and says:
"If it appears to the tribunal that, apart from the reason by reference to which the dismissal has been found by the tribunal to have been unfair, any actual omission on the part of the employee (not being an act or omission of a kind falling within any of paragraphs (a) to (e) of Section 36(1) of this Act) was a contributory reason for the dismissal, the tribunal may deduct from the basic amount of the compensation such amount as appears to the tribunal to be appropriate in the circumstances."
In other words, the Donovan Report and the Labour Government, having considered this very point, came to much the same conclusion as we have come to. The only comment I make is that this general principle affecting provocative conduct which is genuinely provocative and not just annoying should apply right across the board. An employer, for instance, against whom a complaint is made of an industrial practice which is unfair and who has repeatedly broken the

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terms of the industrial code of practice, even though he is not himself guilty of an unfair industrial practice should have this principle applied against him. I do not see why it should not apply both ways and in all cases. My impression is that the common-sense rule that what is sauce for the goose is sauce for the gander is an adequate reason for rejecting this Amendment.
LORD STOW HILL: My Lords, that is the answer. The noble and learned Lord does not accept the case I made. May I make one or two points in reply? The noble and learned Lord says that what is sauce for the goose is sauce for the gander. But I am not complaining about the application of this particular doctrine in the case both of the employer and of the trade union. If it can be shown against the trade union that the trade union itself was guilty of conduct which was provocative, then in the event of the trade union complaining against the employer—for example, under Clause 36, that the employer was in breach of a collective agreement—then precisely the same doctrine can be prayed in aid in diminution of any compensation paid to the trade union. So it is not in the least true to say that I am simply seeking something for the worker which I am not prepared to concede to the employer. I have conceded to both sides of the table; but I seek to except the worker because he is in a particularly difficult and vulnerable position, or he may be if he is one of these unpopular people.
The second witness which the noble and learned Lord prayed in aid was Mrs. Castle and her Bill. She obviously had in mind the sort of situation with which I am dealing, because there is excepted from the kind of conduct that can be taken into account (if I am right, having quickly read it) conduct which is within Clause 36, which, if I cite it correctly, deals in general, for example, with this situation:
"that the employee (otherwise than in a case falling within subsection (c) of the next following subsection) professed or practised, or did not profess or practise, a particular religion or religious doctrine, or belonged to or otherwise upheld the aims of, or did not belong to or otherwise uphold the aims of, a particular political party, or upheld or did not uphold a particular political doctrine".
The example that I gave when I previously argued the case, which I agree
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was an extreme example, was the case of a man who was a Maoist. That would be within that clause, and I should have thought, if I correctly read the effect of the Labour Government's Bill, that that is precisely the sort of situation in which the effect of the Labour Government's Bill would be that provocative conduct consisting in upholding the doctrines of an unpopular political Party should not be taken into account against him. But the House has heard both sides of the argument. If this does not commend itself to the Government, so be it. I do not think I would be usefully taking the time of the House in pressing the matter further or in asking the House to divide upon it, and I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 116 [Limit on compensation to be awarded against trade unions]:
5.24 p.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 87:
Page 89, line 2, leave out ("£25,000") and insert ("£15,000").
The noble Lord said: My Lords, your Lordships will recollect that this is a matter we discussed at the Committee stage. The Bill refers to a series of steps in relation to the limit of compensation awarded against a trade union. The steps are: step one, £5,000; step four, £100,000. There are four steps mentioned in the Bill. What the Amendment deals with is step two, which is clearly out of line with the other steps. The Government said on the last occasion that they would give this matter consideration. I hope they will; and the Amendment has been put down both to give them an opportunity to express the results of that reconsideration and to suggest a figure which really would be in step. The present figure is grossly out of step in that one case. I beg to move.
EARL JELLICOE: My Lords, the noble Lord has moved this Amendment with his usual arithmetical skill, and, although I did not take part in the discussion of this particular clause at our Committee stage, I should like to say why, after reconsideration, we feel that, despite what the noble Lord has said, and said with considerable moderation, we feel we have got the sums right here. I think I

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should first of all very briefly recapitulate our purpose in including this clause in the Bill.
My Lords, we recognise, and I think everybody recognises, that the losses which can be sustained by a company can be very large indeed in these sort of circumstances. They can be so large that if awards of compensation were based on the actual losses sustained a union could in fact be broken by a single judgment. I should like to make it clear that we have taken the view—and it is implicit in what my right honourable friend the Secretary of State for Employment has said in his introduction to the Code of Industrial Practice—that any such result would be completely contrary to our purposes and to the purposes of the Bill, which are to develop and maintain, so far as possible, stable relationships between the two sides of industry. That is why, my Lords, we believe that we should try to establish reasonable limits which would, on the one hand, afford a deterrent against irresponsible industrial action and, on the other hand, not be a crippling blow to any union.
I should like to make it clear that the limits which are set out in subsection (2) of this clause were arrived at after very careful consideration of a whole variety of considerations—the size of the trade unions, their resources in terms of finance, the distribution of their membership and the sort of losses that they could themselves inflict upon a particular company. I should also like to underline the fact that there is nothing punitive in this aspect of the Bill. What we are here considering are limits to how much an injured party can recover of the losses which he has actually sustained. I would make it clear that we recognise that any limits which one draws here can be held, arguably, to be artificial, and that there is therefore an element (you might so call it) of rough justice. I think there are only two ways to avoid that. One would be to adopt some sort of rigid formula; for example, the average earnings of those members of a particular union who might be on strike. This would be enormously complicated. The other way would be to have no limit at all, and this would be
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open to just the sort of objections that I have suggested.
The noble Lord has to a certain extent, I think, based his argument on the fact that the steps are uneven here, and I would straightaway recognise and accept that they are uneven here. But I think there is a good and sufficient reason for that, my Lords. I have had some figures worked out for me, and I see that under the limits in Clause 116 the liability per head of average membership would be up to nearly 520 pence per person for unions under 5,000. That comes down to 205 pence for unions in the range we are discussing, 5,000 to 25,000; to 93 pence in the 25,000 to 100,000 range; and to 32 pence in the 100,000 and above. There is—and I would be the first to concede this—an uneven incidence here. I would only say that this is quite deliberate. This tapering off has been deliberately imported into the Bill because of a very important consideration, and the consideration is this. Let us take, for example, the very large unions: the T.G.W.U. or the General and Municipal Workers or the Union of Shop Distributive and Allied Workers. The membership of that latter union, for example, goes right through all the food processing and food distribution industry. Its membership is involved in thousands of firms; and, therefore, it could be simultaneously involved in a very large number of industrial situations potentially at the same time, and therefore at risk. This is what is always possible with a very large union, and this is in fact the reason for this particular form of tapering which, on the face of it, I would readily grant, might appear to be illogical. But I think there is a logic here, and I hope in view of that, and in view of what I have said by way of prior explanation, the noble Lord will agree, whether or not he assents to my arguments. But this is a matter which has engaged a good deal of Her Majesty's Government's attention since the Committee stage. It has certainly engaged mine.
LORD SHINWELL: My Lords, I should like to make a few observations on the point made by the noble Earl. He has referred to the apparently uneven amount of compensation which was required to be paid. In the clause under

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review there is something rather more uneven than the figures. It could happen that a union with 5,000 or fewer than 5,000 members might engage in what is regarded as unfair industrial practice and, as a result, create havoc not only for the industry or industries concerned but for a great many other industries and trade unions whereas a union with 100,000 members, or maybe even a million members, might engage in what may be regarded as an unfair industrial practice but of such a minor character as to create harm much less injurious than that created by a smaller union with a much lower membership.
That is where the uneven character of this provision emerges, and I should have thought, although the noble Earl did not agree with it, that on the whole it might be better not to specify the actual amount and limit of compensation but to leave the matter to be adjudged by the tribunal. The noble Earl said in that regard that it might involve a serious and adverse effect on the union or unions concerned. In matters of this sort, however, one has to judge by the nature of the offence and the relation of that offence to the position of other unions and other industries likely to be involved. I should have preferred an Amendment—if I may say so with great respect to my noble friend Lord Diamond, who has studied these matters more closely than I have—which expunged entirely the figures mentioned in the clause under review and left it entirely open to the industrial tribunal to decide.
With great respect to the noble and learned Lord the Lord Chancellor, I am putting the point to him because my knowledge of the law is uneven, and I have more often been at one end of the court than the other—though not for anything but political offences, such as obstruction at meetings. I venture to put to him the point that compensation in civil cases is not always specified in actual sums. It is left to the court to decide what should be the amount of compensation. Speaking again without any knowledge of the law or of the methods judges employ, or of how their minds work, I venture to suggest that they would determine the amount of compensation according to the nature of the offence, whether in a libel action or a
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civil case. Would it not be better, therefore, not to have a clause which specifies figures and amounts, and which is a kind of threat, a sort of shadow hanging over the trade unions, but rather to leave it to the good sense of those who will be on the industrial tribunal to come to a conclusion having regard to the nature of the offence? That is what I should have preferred, but I am in the hands of my noble friend Lord Diamond and my colleagues on the Front Bench—it is for them to decide. The uneven character of the figures does not interest me very much; I am more concerned about the uneven principle that is embodied in this clause. I would rather see that rejected than that the Bill should be rigid, and almost doctrinaire and definite, in a matter where one finds it impossible to be definite because of the possibly uneven character of the offence.
THE LORD CHANCELLOR: My Lords, though perhaps I should not do so, I shall rise to the fly cast by the noble Lord, Lord Shinwell. He is perfectly right. Of course courts award compensation in relation to the evidence, and in cases of this kind it will be in relation to the amount suffered, and this is so under the Bill. What the battle between the noble Lord, Lord Diamond, and the noble Earl, Lord Jellicoe, is about is the arbitrary limit set at various stages as a ceiling on compensation, not as a rigid yardstick by which compensation should be awarded but as a ceiling on what the courts can do. This exercise in mathematicianship is something that I will leave to the noble Lord, Lord Diamond, but it is not the sort of thing the noble Lord, Lord Shinwell, was complaining about.
LORD SLATER: My Lords, I was interested in what my noble friend Lord Shinwell had to say. I agree more or less with everything he had to say with regard to this item, although I have never looked at it in the same sense as he has done regarding the figures. As cited by my noble friend Lord Diamond in talking about the steps for the reduction from £25,000 to £18,000, the noble Earl the Leader of the House said that is not a crippling blow to trade unions. How many trade unions have we in this country recognised as such? The number of recognised trade unions, or forms of

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society with trade union standing, is anything from 200 to 300. They call themselves trade unions. The noble Earl and members of this Government ought to remember—and I have said this before this Bill was introduced—that there is the Whitley machinery inside the Civil Service in this country, and if you were to examine that Whitley machinery you would find that what I say is correct.
I can tell your Lordships that every employee works to a code principle that if he commits a misdemeanour he suffers the penalty of a loss of a day's work or two hours' work, or some such penalty. This is according to the conciliation machinery agreed between the parties. May I take it that all the conciliation machinery which has been operating within industry and the Civil Service is now to be cast out, following the introduction of this clause which relates to penalties which may now be imposed, and that trade unions will have to subject themselves to it irrespective of the forms of agreement drawn up in accordance with the Whitley machinery which have been in operation for such a long time? What has been said by my noble friend Lord Shinwell and the questions which I am posing relate to individuals whose terms of employment permit the employer to dictate the penalties for a misdemeanour or loss of production.
LORD DIAMOND: My Lords, I am grateful to my noble friends Lord Slater and Lord Shinwell for their support. I was particularly interested in what Lord Shinwell said about the recommendations he made to me. May I just explain that if I put down an Amendment to delete the parts of the Bill which I do not like, the Amendment would be one to leave out Clauses 1 to 166 (or whatever the figure is) and Schedules 1 to 9, and that would cover the matter. But at this stage, my Lords, I do not think we should make a great deal of progress by working in that way. So I have sought to put forward the most modest Amendment, and one which I felt sure the Government would be wise to accept.
I have not challenged the principle of limitation, or the principle of the steps, or the movement from step 1 of £5,000 to step 4 of £100,000. I have not challenged
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step 3, which is £50,000. I am merely saying that step 2 is absurdly out of line; and the noble Earl, who was good enough to give the matter further consideration, said that he hopes I am satisfied that lie has given the matter a great deal of further consideration. I am completely satisfied about that. I feel quite as benevolently disposed towards the noble Earl as was the schoolmaster towards the pupil to whom he had given the task of doing a sum, when the pupil came to him and said, "Not only have I done it at once, I have done it 10 times; and here are the 10 answers". I am not impressed with the noble Earl's arithmetic or the argument for the £25,000. It is clearly out of step. The figures he was good enough to add to it reinforce the extent to which it is out of step. But if the noble Earl is not prepared to move on the matter I do not think that we can do any more. I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
Clause 117 [Limit on compensation awarded under s. 103, s. 106 or s. 109]:
5.45 p.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 87C:
Page 89, line 13, after ("106") insert ("(except in the case of an award of compensation increased under the provisions of sub-paragraph (b) of subsection (4) of section 155 of this Act").
The noble Lord said: My Lords, as printed the Amendment refers to "section 155". I do not know why it refers to that clause, except that possibly it was so described in somebody's handwriting. If so, that was an error. It is perfectly obvious that the Amendment refers to Clause 115 and I hope that your Lordships will permit me to move it in that form. Clause 115(4) refers to the circumstances where on a complaint relating to dismissal an industrial tribunal has made a recommendation and that recommendation has not been complied with. It goes on to say:
"(b) if the tribunal or Court finds that the reason for which the recommendation was not complied with was that the employer in question refused or failed to make such an offer, and the tribunal or Court considers that he acted unreasonably in doing so, the tribunal or Court shall increase that assessment, to such an extent (in either case) as in the cir-

247
cumstances the tribunal or Court considers just and equitable."
So we have a circumstance where a recommendation is made and an employer says, "Nothing doing". The Court or tribunal is satisfied that the employer has acted unreasonably in respect of the Court's recommendation over an unfair industrial practice and therefore the Court does the only thing it is allowed to do under the Bill; it increases the compensation or the amount payable—and I make no objection to that.
Also in the clause we are considering there are limits to the amount of compensation awarded under the various provisions. All I am proposing in this Amendment is that in respect of that circumstance—that is to say, a case of an award of compensation being increased under the provisions of the subsection I have read out—these limits should not apply. I think it right that limits should apply in other circumstances, but these are peculiar circumstances which deserve appropriate treatment. The appropriate treatment is described in the Bill and it would remove the discouragement to the kind of treatment referred to if the penalty were limited in the way described. I propose the Amendment to leave out that lightening of the burden.
THE LORD CHANCELLOR: My Lords, it is as well, I think, that we should see the context in which this Amendment is proposed. Clause 117 provides compensation for an individual workman in the case of unfair dismissal. There are two other clauses which for the sake of clarity I will ignore for the purposes of this argument as they are irrelevant in respect of this Amendment. It is the limit on the amount that an industrial tribunal can award to a workman. We were concerned to limit the amount which an industrial tribunal could award for a variety of reasons which were all canvassed in the course of the Committee stage debates. One which I think was acknowledged on both sides to be arbitrary, and equally acknowledged to be unavoidable, was that we have no idea as yet what the work load will be in the case of unfair dismissals, and we must not, therefore, leave the very largest claims to afflict the tribunal.
Another was that the tribunals are working in a new field and to give them
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an unlimited jurisdiction would be to give them jurisdiction equal to that of the High Court. They are composed of individuals perhaps not above, possibly not equal to, county court status, and it would be a step in the dark to allow them unlimited jurisdiction. These figures were arrived at on the basis of two years' pay at a figure of £40 a week. The latter figure was chosen to coincide with the limits under the Redundancy Payments Act, 1965, which is a respectable precedent and a comparatively recent one. We think that it is likely to cover all the probable cases.
The noble Lord, Lord Diamond, seeks to engraft an exception and to remove the limit in cases where an employer has been given a recommendation under the earlier clause to re-engage an employee and has failed to do so. It is common ground that compensation ought to be awarded in this case, so to that extent there is no difference between any of us. The question is whether this is a logical reason for exempting a case from the limitation which would otherwise have been imposed on the tribunal. But one can see that it is irrelevant in this case. I suppose that the justification for the noble Lord's proposal is that it is particularly bad if the employer is unwilling to comply with the recommendation. From some points of view I would agree with the noble Lord, but not from the point of view of the amount of compensation. That is awarded on the basis of actual loss. It is not a penalty.
I wish that we could avoid this idea altogether, because it is compensation for loss that is awarded, whether against a trade union in other cases or against an employer for unfair dismissal. There is no case for thinking that the actual loss to an employee is likely to exceed £4,160. Much the worst case that one can conceive of, from the point of view of actual loss, has nothing to do with moral obliquity on the part of the employer. It is the case where an employee either does not or cannot get another job. That is the case where the ceiling will come into question, and this is not more likely to happen where an employer has refused a recommendation of re-engagement than in any other class of case. It has nothing to do with the Amendment proposed. There are a good many points in this field where the two sides are not at odds with one

249
another. I submit to the House that when we come to analyse the Amendment it is without merit and ought to be resisted.
6.23 p.m.
LORD SHINWELL: My Lords, attention so far has obviously not been directed to subsections (2) and (3) of the clause. Subsection (2) makes provision for the Secretary of State, presumably by issuing regulations requiring possibly an affirmative order in another place, to calculate the amount of a week's pay for the purpose of the preceding subsection. Subsection (3) makes it possible for the Secretary of State—and this applies more clearly to the Amendment proposed by my noble friend Lord Diamond—to issue regulations by order which would enable the sum mentioned in subsection (1) to be increased. It reads as follows:
"The Secretary of State may by order made by statutory instrument provide that, subject to such transitional provisions (if any) as may be contained in the order, subsection (1) of this section shall have as if, for the references to £4,160 and £40, there were substituted references to such larger sums as may be specified in the order."
So the Secretary of State has power to increase the amount from £4,160, based on a calculation of £40 a week, to a larger sum. But the point is that subsection (2) provides that the calculation should be on the basis of a week's pay, not £40 a week—£40 is the limit. A week's pay might be based on the standard rate, on basic pay; and in a variety of industries in the United Kingdom basic pay is much lower than the actual earnings that a worker receives. For example, in the engineering industry—and some of my noble friends associated with the union concerned may correct me if I am wrong—the basic pay is about £16·50 a week: my noble friend says £18. In the mining districts, it is much lower.
If the tribunal has to calculate on the basis of a week's pay in order to assess the compensation for any wrong done to a worker by an employer, then the amount of compensation would be very small indeed. As in the argument I ventured to adduce on the previous Amendment, on the amount of compensation that could be imposed on a trade union for committing an alleged unfair
250
industrial practice, a great deal depends on the circumstances in each case. A worker on a lower wage may have a large family, though he may get family allowances and various fringe benefits. There may be ill health in the family. He may be paying higher rent, not affected by what has been told us to-day about the Government's proposed housing finance. Therefore, it seems to me that the figures are all irrelevant. The question of what a man should receive ought to be determined according to the circumstances—what he has been earning, not over a period of weeks but over two or three years; what his financial circumstances are; his way of living and the rest of it. I am bound to say that what is proposed is irrelevant to the situation that is likely to emerge.
Though I support my noble friend's Amendment, because in his wisdom he no doubt considers it the right thing to do, I point out that the Secretary of State can by order increase the amount but, on the other side of the coin, he can base the calculation on a much lower weekly pay, as a result of which the man concerned can be very adversely affected. I do not know why the Government have had to resort to this mathematical calculation, because it is not relevant, it does not make good sense, nor is it likely to provide good justice.
LORD DIAMOND: My Lords, again I am grateful to my noble friend for his support, and I look forward on the next Amendment to meeting his point of view even more clearly than has been possible on this Amendment. The noble and learned Lord who sits on the Woolsack has explained why he does not regard this as an exceptionally topical case. I have re-read the original terms carefully, and I can see that it need not necessarily be regarded as the worst of all cases. I still think that it should be excluded from the limit, but the noble and learned Lord is not prepared to help us. I do not think it would be proper to take up the time of the House further and, with your Lordships' permission, I ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.2 p.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 87A:
Page 89, leave out lines 17 and 18 and insert—
("(b) £6,240 (that is to say 104 × £60 whichever is the greater.")
The noble Lord said: My Lords, I beg to move Amendment No. 87A. I hope that this Amendment will meet my noble friend Lord Shinwell's point more precisely, and that the Government will look upon it with considerable sympathy. At the moment, the limitation which is provided for the compensation payable is the amount of 104 weeks' pay or 104 times £40, whichever is the less. First of all, I want to say that £40 a week is rapidly becoming—and it looks like continuing its rake's progress—less impressive than at one time it was. Therefore, if one is going to look to the future, it is likely that £40 will increase to considerably more than £40 as an estimate of good weekly earnings. I have therefore sought to meet that point by providing for a figure, not of £40 a week but of £60 a week. The Bill will not be applied for some long time—one does not know how long yet—and it is reasonable to suppose that £60 a week will more likely be the figure that the Government will have in mind as an impressive figure than the £40 a week. So the first suggestion I want to put to your Lordships' House is that instead of having a figure of £40 a week, we should have a figure of £60 a week.
Equally, if not more important, is the proposal to remove the words "whichever is the less" and to substitute the words "whichever is the greater".
LORD BEAUMONT OF WHITLEY: Hear, hear!
LORD DIAMOND: That is really of fundamental importance, my Lords, and I am delighted to hear the distinguished representative of the Liberal Benches signifying his agreement. We have been over this case before. I do not know how the words "whichever is the less" came in. They are clearly not appropriate or just. Justice would require that there should be a figure calculated on the basis of £60 a week, but that if there was a higher figure earned, then the higher figure should be paid. It is as simple as that. There is, I realise, a provision under subsection (2) for the
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Secretary of State to calculate the amount of a week's pay, but I do not think that affects the broad point that we are making on this Amendment. I do not want to waste the time of the House in going over the arguments that we covered in Committee. I beg to move the Amendment as it stands and hope to get the support of the Liberal Party, if that support is necessary. But even more I hope—and I am sure that the Liberal Party feel the same way—that the Government will meet the Amendment, so that that support will not be necessary.
LORD BEAUMONT OF WHITLEY: My Lords, when we discussed this Amendment at the Committee stage, I made the point that I thought 104 weeks' pay was the right type of provision. I accepted that there should be a limit, but I thought, in fairness to everyone concerned, that it should be a limit related to the amount of pay which a person was earning. My noble friends and I wanted to see the removal of lines 16, 17 and 18 on page 89. But we were not successful, and so we come to this Amendment on Report stage. I still hold to my beliefs about that point. This Amendment obviously does not completely meet the point that my noble friends and I were making, but I think it goes quite a long way, particularly by substituting "whichever is the greater" for "whichever is the less". That will remove a great deal of injustice, as it seems to me, to those who earn more than £40 a week.
The noble and learned Lord on the Woolsack said that the Redundancy Payments Act 1968 provided a precedent for this particular sum of £40 a week. I follow Lord Diamond's argument, and I calculate that on compound inflation by the time this Bill comes into force £50 a week will be the equivalent weekly wage. The noble Lord, Lord Diamond, mentioned subsection (2). Subsection (3) gives the Secretary of State power to order by Statutory Instrument. But I think we should start higher than that. I think the real guts of this Amendment is in "whichever is the greater", and that this is a matter of ordinary justice between individuals. If compensation is going to be fixed, as obviously it is in some cases, on what a man's job is worth to him, then it should be based all the way through on the wages earned. Therefore we support the Amendment.
THE LORD CHANCELLOR: My Lords, listening to the two speeches that have just been delivered has led me to reflect in a melancholy manner on the inflationary effects of opposition. The Labour Party proposal for compensation for unfair dismissal relied in Clause 40 of their Bill upon a most elaborate formula which I shall not endeavour to recount. Not having done the computation myself, I have none the less able assistants who have done it for me. The maximum proposed by the Labour Bill in such cases as these was £1,920, except where a reinstatement order existed, when the maximum compensation was £2,640. Now, because we have suggested £4,160, or two years' pay, whichever is the less, they say that a great deal more is necessary in order to do justice between man and man. It leads me, I am sorry to say, to reflect, as I said, upon the inflationary effects of opposition. Of course the Liberal Party, which went much further, never having been in power at all within living memory, suffers from the complaint of the inflationary effect of opposition to an almost unlimited extent.
That really provides the short answer to this Amendment. I explained in answer to the last Amendment the general purpose of this ceiling, and once more am I surrounded like St. Paul with a cloud of witnesses. One, of course, is the previous Labour Government whose Bill I have already cited, but here again I rely upon the support of the noble and learned Lord sitting on the Cross-Benches, looking like a little cherub aloft. He said—and I am here quoting from paragraph 554:
" While we do not favour a scale of compensation, we think it desirable for practical reasons to fix a ceiling to the amount of compensation which can be awarded. This will make it easier for employers to insure against the risk of being obliged to pay compensation. It would in our view be reasonable to provide that the maximum should be an amount equal to the employee's wages or salary for two years; and that, as in the case of compensation under the Redundancy Payments Act, in the computation of this amount there should be ignored wages or salaries in excess of £40 a week—a limit the Secretary of State should have power to raise."
So the short answer is that we have done about twice as well as the Labour Party when they were in power, although not so far as the Liberal Party would be willing to go, never having
254
known the realities and responsibilities of Office. Now we have gone the full length, at any rate in this modest respect, of what the noble and learned Lord recommended, and we are full of virtue and exuding unctuousness. I therefore suggest to your Lordships that the Amendment should be rejected.
LORD SHINWELL: My Lords, I am in full agreement with the rebuke of the noble and learned Lord who sits on the Woolsack to the Liberal Benches. They have no right to talk, because for many long years, as the noble and learned Lord the Lord Chancellor has just told us, they have not been responsible in any fashion for administration. So they have become completely irresponsible and whichever Amendment is accepted, any Amendment proposed by them I would reject.
LORD BEAUMONT OF WHITLEY: My Lords, may I ask the noble Lord whether he is at one with his own Front Bench, because on this matter I am at one with his Front Bench.
LORD SHINWELL: My Lords, there is one matter on which I would join issue with the noble and learned Lord the Lord Chancellor, and that is his reference to the propositions in the White Paper produced by the Labour Party and in their proposed legislation. Of course, the figures suggested by the Labour Government were much lower than the figures suggested by the Conservative Government in preparing legislation under this Bill; but when the Labour Government produced their White Paper and proposed legislation there was never a thought that after a couple of years or so a Conservative Government would be pitchforked into office and become responsible for a series of inflationary processes such as we have not witnessed so far this century. That is the position.
The Labour Government must not be blamed for the position. They were not aware that the economic position would become so serious, so transformed in such an adverse way as we are now experiencing. All the arguments adduced by the noble and learned Lord the Lord Chancellor fortified the contention that I ventured to put before your Lordships in the course of the debate on two previous Amendments; namely, the absurdity of

255
being explicit and definite about figures. Of course it is impossible to foresee what the future will bring, to envisage the degree of inflation or reflation over a period of years—it is quite impossible. Who can tell? Speculation, conjecture and astrology should play no part in our calculations at all. We have to deal with the facts and what the situation is likely to be when a case comes before the industrial tribunal, as before a court of justice, and all the circumstances must be taken into account and a decision recorded. That is the sensible way of dealing with a situation of this kind. But I am bound to say that much which has been said this afternoon concerning these Amendments makes me feel the more convinced that it was unwise to introduce any figures at all. It would have been much better to have left the position open to be resolved by the good sense of those eminent people who are likely to be appointed to the industrial tribunal.
6.16 p.m.
LORD SLATER: My Lords, it is always interesting to listen to the noble and learned Lord who sits on the Woolsack, particularly when he begins to take the Labour Party to task because of the proposals which they seek to introduce. The thing which struck me very forcibly was that he keeps referring to the Donovan Commission's Report, but only when it suits his case. The Government and the Secretary of State were not prepared to accept the recommendations of that Commission in full detail, and to implement them. Why? They leave the door open because they seek to criticise what the Labour Government were prepared to do when they were in office and the proposals that they sought to bring forward for the benefit of people in this country. It is true, as my noble friend Lord Shinwell pointed out, that prices are shifting and the cost of living is going up. This has happened only because of the policies pursued by the present Government, and if they continue to pursue them prices will fluctuate even more. We talk of something in the region of £40 a week for people in industry. That figure will fluctuate, and that is why people are leaving the basic industries, such as the mining industry, and seeking an increase in wages of £9 a week at the present time. Therefore I say to the noble and
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learned Lord who sits on the Woolsack, "Yes, it is an old Parliamentary trick, and an old political method, that if you can find anything which has come from somewhere else and which you are not prepared to accept in toto, but only the parts that will advance your particular argument, then for God's sake take it and put it across." That is what the noble and learned Lord the Lord Chancellor has endeavoured to do in all our debates here when quoting the Donovan Commission's Report. I should have been very pleased if we could have got the noble and learned Chairman of that particular Commission on his feet to take the noble and learned Lord the Lord Chancellor to task, if at all possible, because of the statements that have been made.
LORD DIAMOND: My Lords, there are two issues involved in this Amendment: the minor one is the figure, and the major one is the essential element of justice. As to the figure, the noble and learned Lord who sits on the Woolsack has given us two examples of £4,160 (the figure given in the Bill) which are both dated 1968 or earlier. The Donovan Report was issued in June, 1968, and I believe that the Commission were appointed in 1965; so the recommendations speak for any time between 1965 and 1968. We know not when this Part of the Bill is likely to be implemented, but probably it will not be before 1972 or 1973. Therefore there is a considerable period of time involved. The Lord Chancellor's argument proves and proves conclusively, as all his arguments do, that the figure of £4,160 certainly cannot stand, nor can the reference to the Redundancy Payments Act, which again is an earlier reference, except in demonstrating that one thing is certain: that the figure of £1,460 is out of date. On these two conclusive arguments why do I say that the figure is of the lesser importance? Because, as has been pointed out, there is provision for this figure to be increased but we think it right that the target figure should be clearly indicated at the present time, and therefore that the figure should be based not on £40 a week but on £60.
The other argument which impressed me concerned possible injustice—and I do not want the noble and learned Lord to think I was not impressed by his

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argument about the noble Lord, Lord Donovan, looking like a cherub up aloft; I thought that was an excellent example. I was going to see whether he was suitably clad for this weather as a cherub, but perhaps that would not be quite in keeping with your Lordships' traditions. But the major point with which we are concerned is the essential injustice in having a lower figure than the real compensation based on so much a week. This was the essence of the Liberal Amendment
in the previous case. It is the greater part of our Amendment. We have had no reply to that of a satisfactory nature, and I therefore invite your Lordships to demonstrate our view on this Amendment in the usual way.
6.21 p.m.
On Question, Whether the said Amendment (No. 87A) shall be agreed to?
Their Lordships divided: Contents 56; Not-Contents 100.

CONTENTS

Addison, V.

Evans of Hungershall, L.

Popplewell, L.

Archibald, L.

Gaitskell, Bs.

Raglan, L. [Teller.]

Ardwick, L.

Gardiner, L.

Ritchic-Calder, L.

Beaumont of Whitley, L.

Garnsworthy, L. [Teller.]

Rusholme, L.

Bernstein, L.

Hall, V.

St. Davids, V.

Beswick, L.

Henderson, L.

Shackleton, L.

Blyton, L.

Heycock, L.

Shepherd, L.

Brockway, L.

Hilton of Upton, L.

Shinwell, L.

Buckinghamshire, E.

Hoy, L.

Slater, L.

Burntwood, L.

Hughes, L.

Sorensen, L.

Carnock, L.

Jacques, L.

Stocks, Bs.

Champion, L.

Janner, L.

Stonham, L.

Chorley, L.

Kennet, L.

Stow Hill, L.

Collison, L.

Kilbracken, L.

Taylor of Mansfield, L.

Davies of Leek, L.

Lindgren, L.

White, Bs.

Delacourt-Smith, L.

Lloyd of Hampstead, L.

Winterbottom, L.

Diamond, L.

Morris of Grasmere, L.

Wootton of Abinger, Bs.

Donaldson of Kingsbridge, L.

Nunburnholme, L.

Wright of Ashton under Lyne,

Douglas of Barloch, L.

Platt, L.

L.

NOT-CONTENTS

Aberdare, L.

Cullen of Ashbourne, L.

Macpherson of Drumochter,

Ailwyn, L.

Daventry, V.

Margadale, L.

Albemarle, E.

Denham, L.

Massereene and Ferrard, V.

Allerton, L.

Derwent, L.

Merrivale, L.

Alport, L.

Drumalbyn, L.

Milverton, L.

Amory, V.

Dundee, E.

Monck, V.

Balerno, L.

Ebbisham, L.

Mowbray and Stourton, L.

Balfour, E.

Eccles, V.

Napier and Ettrick, L.

Barnby, L.

Exeter, M.

Northchurch, Bs.

Belhaven and Stenton, L.

Falkland, V.

Nugent of Guildford, L.

Belstead, L.

Ferrers, E. [Teller.]

Oakshott, L.

Berkeley, Bs.

Ferrier, L.

O'Neill of the Maine, L.

Bessborough, E.

Fortescue, E.

Rankeillour, L.

Birdwood, L.

Fraser of Lonsdale, L.

Rochdale, V.

Bledisloe, V.

Goschen, V. [Teller.]

Rothermere, V.

Boston, L.

Gray, L.

Rothes, E.

Boyd of Merton, V.

Grimston of Westbury, L.

St. Aldwyn, E.

Brabazon of Tara, L.

Hailes, L.

St. Helens, L.

Brentford, V.

Hailsham of Saint Marylebone,

St. Oswald, L.

Bridgeman, V.

L. (L. Chancellor.)

Sandford, L.

Brooke of Cumnor, L.

Hankey, L.

Sinclair of Cleeve, L.

Brooke of Ystradfellte, Bs.

Hatherton, L.

Somers, L.

Brougham and Vaux, L.

Hood, V.

Stonehaven, V.

Buccleuch and Queensberry, D.

Hylton-Foster, Bs.

Strang, L.

Burton, L.

Jellicoe, E. (L. Privy Seal.)

Strange, L.

Carrington, L.

Kemsley, V.

Strathclyde, L.

Chesham, L.

Killearn, L.

Tenby, V.

Clwyd, L.

Kilmany, L.

Teviot, L.

Colgraic L.

Kilmarnock, L.

Vivian, L.

Colville of Culross, V.

Kinnoull, E.

Wakefield of Kendal, L.

Cork and Orrery, E.

Lauderdale, E.

Ward of Witley, V.

Craigavon, V.

Lloyd, L.

Windlesham, L.

Crathorne, L.

Loudoun, C.

Wrottesley, L.

Cromartie, E.

MacAndrew, L.

Resolved in the negative, and Amendment disagreed to accordingly.

Clause 118 [Contribution to compensation on complaint under s. 106]:
6.29 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 87B:
Page 90, line 23, at end insert (" in respect of any sum payable by way of any such compensation.")
The noble Lord said: My Lords, this Amendment relates to a very short point, and my objective really is to seek clarification and to remove possible ambiguity. Clause 118 provides for payment of a contribution at the instance of somebody who has been ordered to pay compensation for an unfair industrial practice and who claims a contribution against somebody who has induced him by pressure to embark upon that unfair industrial action. Subsection (3) of Clause 118 enables the tribunal, if it thinks that there is a case for contribution, to award such contribution as—and these are the relevant words—" to constitute a complete indemnity". I do not know whether those words are meant to include an indemnity for the costs of the proceedings. This is a small technical point. If one looks at the measure of compensation as defined in Clause 118, which enables expenses reasonably incurred by the complainant in consequence of matters to which the complaint relates to be taken into account, I should have thought that those words were not appropriate to cover the costs of proceedings. The words "to constitute a complete indemnity", read without any qualification, would include an indemnity as to the costs of proceedings. Those costs may be very heavy and one should know what is the intention of the Government with regard to this matter. Do they intend the indemnity to include the costs of the proceedings or do they not?
By this Amendment I seek to put in words which will make it perfectly clear that the indemnity will extend to the whole figure ordered to be paid by way of compensation but will not go beyond that and include any indemnity as to costs. I personally think that an indemnity as to the amount of compensation would be adequate, but I have not a very strong view about it, one way or another. I would prefer that it should not include costs. Therefore my first question to the Government would be
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this: do they intend the indemnity to be one which could include costs? If the answer to that question is "No", then I would submit that in order to make that clear beyond a misunderstanding it is necessary to include some words such as I have put on the Marshalled List, namely:
"in respect of any sum payable by way of any such compensation".
I beg to move.
THE LORD CHANCELLOR: My Lords, this matter is limited to proceedings under Clause 106; namely, proceedings before an industrial tribunal for unfair dismissal. I was not aware that it was the practice of the industrial tribunals to award costs. If it is, they are minimal, and if it is their practice, then the intention of the Government is that the indemnity, if any, should not include them. I will consider this matter further as I was given a slightly different idea of the purpose of the Amendment when I was preparing myself to meet it. I thought the noble Lord was making a different point and I was prepared to answer that point, but I will let the noble Lord have a more considered statement. The position about costs in industrial tribunals is that regulations may include provision for the award of costs or expenses, including allowances payable under Section 12(3) of the Industrial Training Act, other than allowances payable to members of industrial tribunals or assessors, but I do not fancy that these will be at all substantial. The intention is that the indemnity should not include the award of costs.
LORD STOW HILL: My Lords, I am grateful to the noble and learned Lord, first, for the intimation he has given as to the intentions of the Government and, second, for the statement he has made that he will go into the matter further. With that expression of gratitude, may I ask the leave of the House to withdraw the Amendment?
Amendment, by leave, withdrawn.
Clause 121 [Action initiated by Commission]:
LORD DIAMOND: My Lords, the purpose of putting down Amendment No. 88 is to persuade the Government of the merits of it. If one has succeeded in that,

261
one should waste no more time. I beg to move.
Amendment moved—
Leave out Clause 121—(Lord Diamond.)
LORD DRUMALBYN: My Lords, I am grateful to the noble Lord for his brevity. The noble Lord put down an Amendment which we discussed on the Committee stage of the Bill, and I said that I would reconsider the clause in the light of what he had said. We have done that and we accept his Amendment.
LORD DIAMOND: My Lords, I am most grateful to the noble Lord. I had hoped that this was one of the reasons why he had added his name to the Amendment.
On Question, Amendment agreed to.
Clause 122 [Report of Commission on reference under s. 120]:
EARL FERRERS: My Lords, I beg to move this Amendment on behalf of my noble friend, and perhaps at the same time we might consider the following three Amendments, all of which are consequential upon the deletion of the last clause. I beg to move.
Amendment moved—
Page 92, line 30, leave out (" (a) ").—(Earl Ferrers.)
On Question, Amendment agreed to.
EARL FERRERS: My Lords, Amendment No. 88D is consequential upon the previous Amendment. I beg to move.
Amendment moved—
Page 92, line 33, leave out from ("Act") to end of line 36.—(Earl Ferrers.)
On Question, Amendment agreed to.
EARL FERRERS: My Lords, this Amendment No. 88E is also consequential. I beg to move.
Amendment moved—
Page 92, line 38, leave out ("or of the regulations").—(Earl Ferrers.)
On Question, Amendment agreed to.
EARL FERRERS: My Lords, I beg to move Amendment No. 88F.
Amendment moved—
Page 92, line 38, leave out from ("to") to ("and") in line 40 and insert ("that question").—(Earl Ferrers.)
On Question, Amendment agreed to.
Schedule 3 [Chief Registrar and Assistant Registrars, National Industrial Relations Court and Commission on Industrial Relations]:
6.39 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 88A:
Page 139, line 31, after ("of") insert ("mental or physical").
The noble Lord said: My Lords, I think I can take this matter quite shortly. On the Committee stage we had a considerable amount of discussion on the need for the Industrial Court and the members of the Industrial Court to be seen to be, and recognised as being, a completely independent tribunal and entitled to the public confidence that goes to any tribunal in this country. There was some discussion as to the power of the Lord Chancellor and the Secretary of State to remove an appointed member on the ground of incapacity or misbehaviour—a power which resides in paragraph 6 of Part II of Schedule 3. The noble and learned Lord felt that the power to remove would not really trespass upon the respect owed to an independent tribunal of that sort, upon the basis that it did not really vest in the Executive any excessive power of removing an appointed member, and his ground for so thinking was that the words "incapacity or misbehaviour" enshrined, as it were, the comparative irremovability of appointed members. Clearly, the Lord Chancellor and the Secretary of State must have a right to remove an appointed member for misbehaviour, and the question really centred upon the word "incapacity". The discussion was whether the power to remove for incapacity was in any sense open to criticism. The noble and learned Lord's view was that it was not open to criticism, upon the basis that it would be construed as meaning incapacity (may I use the expression broadly) on the ground of some physical or some mental limitation. If it is so construed, I personally would not have the least possible criticism of it. Clearly, the Lord Chancellor and the Secretary of State, in the event of an appointed member becoming incapacitated in that sense in carrying out his duties, must have the possibility of removal.
I am not arguing that that is not in fact what would be attributed as the meaning of the word "incapacity". All I am seeking to do is to put it beyond any possible doubt that the word "incapacity" is limited in that sense. In order to remove any conceivable doubt, this being a matter of important principle, I seek to add the words "mental or physical"; in other words, the power of removal would arise only on the ground of mental or physical incapacity, or misbehaviour. The addition of the words I propose would, I submit, make it perfectly obvious, so far as the appointed members are concerned, that, apart from misbehaviour, they hold their office without any possible fear of interference from the Executive unless they are physically or mentally unable to do that for which they are appointed. That, I submit, is the right result. It is the intention of the Government, as I think the noble Lord made clear, and it is an intention I would entirely endorse, if I may respectfully say so. I simply seek to put it beyond the least question that that is the only situation in which the power to remove could arise, apart from misbehaviour; namely, if it is demonstrated that the appointee has become mentally unable to do the work, owing to nervous breakdown or something of the sort, or physically unable to do the work. I beg to move.
6.44 p.m.
EARL FERRERS: My Lords, we are grateful to the noble Lord for having moved this Amendment. I should like to say at the outset that I do not think there is anything of difference between us at all. As he explained, my noble and learned friend is just as anxious as is he to see that "incapacity" covers mental and physical incapacity. The noble Lord will remember that when the Bill was first introduced the words which we had in the Bill were different from those that we have now: the words were "unfit to continue in office or incapable of performing his duties". Noble Lords opposite considered that this was not quite so specific as it should be, and it was for that reason that the Government moved an Amendment at the Committee stage to import the words now in the Bill. These particular words, "incapacity or misbehaviour", were the words which the
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Opposition in another place had used in the Courts Act. I suggest to the noble Lord that it would be desirable that the same phraseology should be used in this Bill as in the other, in order to avoid any possibility of misrepresentation. I am quite certain that the Bill will be interpreted only as it is intended, which is that "incapacity" should refer to mental and physical incapacity. But I would suggest that it would be best for this Amendment not to be accepted, simply in order that the legal phraseology may be kept the same in different types of legislation.
BARONESS GAITSKELL: My Lords, I intervene not so much to support the Amendment as to oppose paragraph 6, which I think is absolutely ridiculous. The whole thing is really laughable. It is the kind of sentence or phrase that might be put into any contract or at the end of any kind of rules and regulations for governing boards. It is completely obvious and quite unnecessary.
LORD DONALDSON OF KINGS-BRIDGE: My Lords, without going so far as to agree with everything that my noble friend has just said, I would support this Amendment on the grounds that the word "incapable" has a perfectly clear meaning which does not necessarily involve either mental or physical, incapacity; in other words, it is perfectly possible for a Home Secretary, for political reasons, to say, "This man is incapable; I am going to sack him". That could never be proved, whereas if we limit it to mental and physical, these terms are subject to proof. I think there is substance in the Amendment, and I think it should be looked at very carefully.
LORD STOW HILL: My Lords, I am grateful to both my noble friends for their contributions and to the noble Earl for his answer. May I say to my noble friend who has just spoken that the point I was trying to make was much better expressed by him than by me. I feel that "incapable" is just conceivably susceptible of the meaning of incompetent, and whilst I think, if one is using percentages, that "incapacity" is probably about 95 per cent. safe, I was trying to make it 100 per cent. safe. On the other hand, I see the force of the argument that, as a matter of draftine, it is not desirable to

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use the word "incapacity" in the Courts Act and to use a different connotation of words in this Bill. The result of so doing is that attention is called in the course of argument, should it ever arise, to the difference of wording between the two Acts, and it is sought as a result to limit or extend one set of words or the other. Weighing those considerations, the slight uncertainty, on the one hand, and the difference in the wording, on the other, I feel convinced, on balance, and persuaded by what the noble Earl has said, that it is probably not desirable to press the Amendment, and I would ask leave to withdraw it.
Amendment, by leave, withdrawn.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 88B:
Page 140, line 46, leave out ("practicable") and insert ("appropriate").
The noble Lord said: My Lords, in the absence of my noble friend, may I move this Amendment with which my name is associated? Your Lordships will recall that in Committee the noble Earl, Lord Dudley, moved an Amendment part of which would have substituted "appropriate" for "practicable" in this paragraph. On that occasion my noble friend Lord Jellicoe said that the suggestion appealed to him and he undertook to look at it between then and Report stage. We have looked at it, and I do not think I need do more than say that we are grateful to my noble friend for having brought this matter to our attention. My noble friend Lord Jellicoe was not able to agree with everything that was said on that occasion, but he did express the feeling that in regard to the word "practicable" the appropriate word was "appropriate", and the Amendment would substitute that word for "practicable". I beg to move.
On Question, Amendment agreed to.
6.50 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No 88G:
Page 140, line 46, at end insert ("and except as provided by sections 82(7) and 146(6) of this Act, and except in proceedings on an appeal under section 113 or section 114 of this Act, the Industrial Court shall not be bound by any enactment or rule of law relating to the evidence which is admissible in proceedings in other courts.")
The noble Lord said: My Lords, the aim of this Amendment is to release the
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Industrial Court from strict adherence to the rules and laws of evidence. The Government have repeatedly indicated their intention that the Industrial Court should be a plain man's court, and that is why it has its tripartite composition, which is somewhat unusual. That is why it has the discretion it will enjoy in awarding its remedies; and that is why we intend that informality will characterise its proceedings. In order to do justice to this conception the Industrial Court must be as flexible as possible in its procedure, and that is the principal reason for the Amendment. Adherence to the rules of evidence normally observed in the courts would, for example, oblige parties to follow various Rules of Court laid down in the Civil Evidence Act 1968 before certain statements could be produced in evidence. The court would also be restricted in the types of second-hand hearsay evidence which would be admissible. In this matter we are following the practice of industrial tribunals, which are similarly free from the obligation to observe the formal rules of evidence. This follows from the regulations made under Section 46 of the Redundancy Payments Act 1965. The wording there in this respect has been carried over into Schedule 6 of this Bill. Industrial tribunals will continue to enjoy freedom from the formal rules of evidence, and the Amendment puts the issue beyond doubt in respect of the Industrial Court.
Perhaps I may say a word about the two exceptions contained in the Amendment. First, when the Industrial Court is hearing appeals from decisions of an industrial tribunal or the Registrar, such appeals will, at least in the case of tribunals, be entirely on points of law, with legal representation highly probable. The facts will generally not be in dispute. Since the proceedings are likely to consist mainly of technical argument between opposing counsel, there is little purpose in suspending the normal law of evidence. The second exception concerns information given to the Registrar or to a conciliation officer in the course of their conciliation duties. Since it is important that the relationship between the conciliator and his client should remain confidential and free from inhibition, Clauses 82(7) and 146(6) provide that what was said, or conveyed, during conciliation shall not be revealed in subsequent proceedings without the consent of

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the party concerned. The Amendment retains this protection.
I fully recognise that noble Lords opposite would prefer that this Bill did not establish the new Industrial Court at all. Given the intention of the Government that this Court shall be established, it is surely in everyone's interest that it should work effectively. By this I mean that the Court should deal flexibly, informally, and speedily with all the different types of case that come before it. This will, of course, be to the advantage of all who appear before the Court, whether as applicants, complainants, or respondents. I therefore commend the Amendment to the House as a useful means of increasing the Court's effectiveness, and I hope the House will agree.
LORD STOW HILL: My Lords, I should just like to ask a question with regard to this Amendment. I am entirely in sympathy with the spirit of it. I think that the greater freedom which this allows does conduce better to the purposes of that part of the Bill which relates to the legal proceedings, whether that part is right in principle or wrong. I cannot quite understand what the effect of the exceptions in relation to appeals under Clauses 113 and 114 of the Bill is going to result in. One is there considering an appeal to the Industrial Court. The tribunal from which the appeals come—whatever the tribunal may be, whether it is the industrial tribunal or any of the others specified in the Bill—will have been free of any limitation as to the type of evidence that it is to consider, and the rules on which that evidence is to be tendered. Then, when the matter goes on appeal to the Industrial Court, the clamp is to come down; the rules as to evidence, as they are normally understood, must then be put into operation and obeyed. I think that is right.
Not infrequently a situation arises in which, in an appellate court, even though the matter may be one strictly of law, it becomes necessary to consider some issue of fact which was not decided in the court below but upon which the issue of law depends. If that issue of fact, in the rare case, should come before the appeal tribunal and the appeal tribunal should decide that evidence must be given as to that fact, that evidence is apparently to conform to the rules of evidence. Some
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of the facts, therefore, before the appeal court will have been ascertained in the court below without the rules of evidence being applied; other facts will have been ascertained in the appellate court, the rules of evidence having been strictly applied. It seems to me that great inconvenience may result. The result of applying the rules of evidence may produce a different finding in a given situation of fact.
Perhaps I may continue while the noble Lord gains sustenance from his advisers? There probably is a simple answer to this, but if there is not I would suggest that the Government should consider this a little further, because some rather bizarre results might eventuate from the application of two systems of evidence brought into play in relation to a set of facts on which a given case depends in the appellate court.
LORD DRUMALBYN: My Lords, I am grateful to the noble Lord. I was anxious to know whether the existing jurisdiction of the industrial tribunal over the Redundancy Payments Act covered an appeal and, if so, whether the same kind of circumstances existed there as those he is talking about. I am assured that the same kind of circumstances do exist. There is, at the present time, an appeal to the High Court, and presumably in the High Court the laws of evidence apply with their full vigour. If that is so I should have thought that exactly the same thing would occur in regard to an appeal from the industrial tribunal to the Industrial Court on a matter of law. I hope that is a satisfactory answer.
LORD STOW HILL: My Lords, if the House would be so kind as to allow me to say two words, may I thank the noble Lord and sympathise with him in having this sort of thing shot at him. That is the fate of a Minister, and he is very gallant in his dealing with these points. The mere fact that there is a precedent does not ensure that it is a good precedent, but I do not take it any further.
On Question, Amendment agreed to.
6.59 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 88H:
Page 141, line 24, leave out ("(e) of section 155(1)") and insert ("(f) of subsection (1) of section 155").
The noble Lord said: My Lords, I beg to move Amendment No. 88H, and may I invite the House to consider Amendment No. 88J at the same time. These are forward-looking Amendments. They are contingent really upon the acceptance by the House of Amendment No. 93J which, as noble Lords will have seen from the Marshalled List, seeks to add to the categories of information protected from disclosure under Clause 155 an additional item; namely, any information obtained by an employer for the purpose of bringing a prosecution, or defending any legal proceedings. Of course it would be wrong for me to anticipate what the House might decide on Amendment No. 93J, but for the purpose of enabling us to have a meaningful discussion on these Amendments to Schedule 3 it would be helpful to assume its acceptance for the time being.
Where a trade union disputes an employer's claim that information it has sought under Clause 56 is protected from disclosure by Clause 155, the matter will have to be resolved by the National Industrial Relations Court. Clearly, where the purpose of the proceedings is to determine whether the information in question is protected—for example, whether it is personal or confidential information falling under subsection (1) of Clause 155—the Court should be able to hear the evidence in private, and paragraph 20 of Schedule 3 enables its rules so to provide. The purpose of these Amendments is therefore simply to enable the Court's rules to allow it to hear in private evidence consisting of legally privileged information. I hope the House will agree that such information should enjoy the protection afforded by Clause 155, when we debate Amendment No. 93J. Amendments Nos. 88H and 88J are really consequential drafting Amendments to the Schedule and this, I am afraid, is a consequence of the order in which we are taking the business. My Lords, I beg to move.
LORD STOW HILL: My Lords, I hope that the House will agree to this Amendment. Amendment No. 93J is in the name of the noble Lord, Lord Drumalbyn, my noble friend Lord Diamond and myself and, as has been said, this Amendment is consequential on that.
LORD DRUMALBYN: My Lords, I am much obliged to the noble Lord. This is the second time that we have anticipated Amendments which we are going to accept.
On Question, Amendment agreed to.
LORD DRUMALBYN: My Lords, I beg to move Amendment No. 88J.
Amendment moved—
Page 141, line 27, leave out ("the said paragraph (e)") and insert ("paragraph (e) of that subsection").—(Lord Drurnalhyn.)
On Question, Amendment agreed to.
LORD DRUMALBYN: My Lords, I suggest that this may be a convenient moment to break for an hour. I beg to move that further consideration of this Bill be adjourned, to enable the Mersey Docks and Harbour Bill to be considered on Second Reading.
Moved accordingly, and, on Question, Motion agreed to.

MERSEY DOCKS AND HARBOUR BILL
7.3 p.m.
LORD NUGENT OF GUILDFORD: My Lords, I beg to move that this Bill be now read a second time. The Mersey Docks and Harbour Board owns and manages the world-famous Port of Liver-pool and Birkenhead, and the Board is now promoting this Bill to provide for the reconstruction of the constitution and capital of the business. The need for reconstruction arises out of the very serious financial crisis which came to light last year. This has all been very fully reported in the Press, including the protracted proceedings in another place, and therefore I think it will only be necessary for me now to record the bare facts.
The facts are that in the past four years the Board has been making trading losses, culminating last year, in 1970, in a deficit of some £3 million. In addition to that, and even more serious, the Board has an obligation to redeem bonds to the amount of £6·2 million which fell due for repayment on January 1 of this year. The Board could not redeem them. A firm of independent accountants who were asked to report on the financial position of the Board showed that the net cash deficiency which the Board faced by the

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end of 1973 was some £20 million-plus. The background picture is also one of great anxiety. Over the five years, 1965 to 1969, there has been declining traffic in the port. While the total shipping tonnage of all British ports increased by about 5 per cent., that of Liverpool decreased by 16 per cent. I state these financial and economic facts to explain the gravity of the port's position and, therefore, the drastic nature of the measures needed to restore solvency.
There has been a disposition in some quarters to blame the Government for the drastic nature of the reconstruction proposed. But I suggest that a monetary consideration of the financial position of the Board which I have outlined makes it plain that nothing less than drastic measures could restore solvency in the circumstances I have indicated. In fact, it should be recorded in passing that the Minister for Transport Industries is providing the whole of the finance for the new Seaforth installation, amounting in total to some £40 million. About half of that sum has already been paid and the balance will be paid over the next year or two as the work is completed. As the port's future prosperity largely depends on the Seaforth container installation, it is evident that the Minister is playing a major part in bringing about the port's recovery.
Turning now to the Bill's proposals for modernisation of the constitution and capital structure, I should first say one word about the existing structure. The Mersey Docks and Harbour Board was set up in 1857 as a public trust authority—there have been some amendments in the interim, but it is substantially the same—with Board membership largely constituted by port users. There was clearly an underlying intention to provide safeguards against the exploitation of the monopoly position which the great Port of Liverpool had during the 19th century. Similarly, the capital structure was designed without equity capital which might have given an incentive to exploit this monopoly. So all the capital is in the form of fixed interest charges, mostly dated. It is only necessary to mention these two major features of the present Board to indicate the wildly unrealistic nature of the structure to-day. There is the port of Liverpool, which has lost 16 per cent. of its trade in five years, and
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far from having a monopoly of its shipping trade is literally fighting for its existence in a fiercely competitive world. So that the constitution is as obsolete as, I fear, is much of the port installation and reconstruction is long overdue.
Let me turn to the main proposals in the Bill for the new structure. First, the Mersey Docks and Harbour Board will be transformed into a statutory company subject to the Harbours Act 1964, and charged with the principal duty of carrying on the port of Liverpool and Birkenhead, plus port conservancy and pilotage services. Secondly, an interim board will be appointed, the majority of whom will represent the bond holders, plus a minority of Government nominees in recognition of the large-scale Government lending. I should say in passing, my Lords, that of course the old board in no way represented the bond holders and they could not have been worse placed to express their views. Thirdly, this interim board will be charged with the duty of formulating a definitive capital reorganisation scheme by June 30, 1973. I should mention, my Lords, that the Bill originally contained the date of June 30, 1974, that is, a year later, but an Amendment in another place advanced this date by one year in order to speed up the introduction of the definitive scheme. When formulated, this scheme must be submitted to the debenture holders for their approval.
Fourthly, each class of redeemable capital debt in the existing Mersey Docks and Harbour Board will be converted into a class of redeemable debenture stock of the company, with unchanged rights of interest and redemption. Similarly, the annuity will be coverted into irredeemable debenture stock with the same interest rates. Fifthly, these interest rates will be maintained only until this Bill becomes an Act. Thereafter, until the definitive scheme becomes effective, first the debenture stock falling due for redemption will not be redeemed, and secondly, interest will be paid at not less than 70 per cent.; in other words, there is an indication of a cut of up to 30 per cent. in interest rates. Loans made after November 27, 1970, that is to say new Government loans, will rank for full repayment, but the Government have waived this right in respect of some £1·2 million of loan which was promised before that date but paid after.

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Sixthly, my Lords, the receiver will be discharged so that the new statutory company can proceed to work independently; and, seventhly, there is a special provision in the Bill, in Clause 47, for the repayment of bond holders with £500 or less stock during the moratorium period. This is related to bond holders in receipt of small incomes relief. This Amendment also was added in another place to meet what could be hard cases. This is not an exhaustive account of a lengthy Bill, but I think it covers the main points which your Lordships would wish to hear about.
I should just like to make two further general points. The first is that the new chairman, Mr. Cuckney, has stated that the definitive scheme, when it is completed, is not likely to be less drastic than that outlined in his circular to shareholders of last November; that is to say, a write-down to 70 per cent. of the capital and a rolling forward of redemption dates for debentures. I have had the opportunity, my Lords, of discussing this in general terms with Mr. Cuckney and he told me that in his judgment at present the Board is seriously over-capitalised, especially in the light of the obsolescence of much of the port installations. Inevitably this implies the necessity for a substantial write-down of capital if the new company is to recover solvency and pay its way.
Mr. Cuckney told me that he is willing to consider creating equity capital in the new definitive scheme which could be allocated pro rata to the debenture holders as off-set against the write-down of the value of the debentures. This point also was mentioned in another place, and could have some importance. If and when the new company becomes profitable in the future the debenture holders would receive some compensation for their present loss. In passing, my Lords, I would like to congratulate the Mersey Docks and Harbour Board on securing Mr. Cuckney's very expert services as chairman. To be chairman of that Board at the present time is not a job for which there would be much competition, and I think that we may be very grateful to him for taking it on.
There is a second general point I should like to make, and to which I feel I should address some remarks. It is on the question of Government responsibility
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towards the bond holders of the Mersey Docks and Harbour Board. When I took up this Private Bill, my Lords, I confess that I had some feeling of anxiety on this score and therefore I have looked very carefully at it. These debentures have, as your Lordships will know, been rated as trustee stock, but it is clear to me that the Government have no legal obligation towards the stock holders. This seems to be firmly confirmed by the fact that three banks and Crown Agents joined together and petitioned on these grounds before the Committee in another place; and in substance their petition did not succeed.
The fact that the Government have four nominees on the Board and have lent money to the Board may very well have influenced the Stock Exchange in rating the stock as trustee stock; but it is quite clear that the stock is in no way comparable to Treasury stock, which of course has the unequivocal guarantee of the Government behind it. Therefore, much as I sympathise with the bond holders, I have concluded that Government would be wrong to accept this liability and to saddle the taxpayer with the cost of meeting it. I conclude by commending the Bill to your Lordships in the belief that it will initiate a new era for the great Port of Liverpool, with a modern constitution, competent leadership and substantial new Government finance for the modernisation of the port installation. My Lords, I beg to move.
Moved, That the Bill be now read 2a.—(Lord Nugent of Guildford.)
7.19 p.m.
LORD BESWICK: My Lords, we are all obliged to the noble Lord, Lord Nugent of Guildford, for explaining the genesis and purposes of this Bill. If there is any noble Lord in the House capable of persuading us that this Bill should go to a Select Committee without further comment it is the noble Lord, Lord Nugent. But I am sure that it would be quite wrong to send this Bill to a Select Committee without voicing the deep disquiet that the implications of the Bill have aroused. It is a Private Bill, my Lords, and as I have said, it is introduced into this House by one of the most respected among us. But that does not

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disguise the fact that it arises from Government decisions as the result of a situation for which the Government have some responsibility, and the Bill ought to have been brought to Parliament by a Minister of the Crown and justified by that Minister on behalf of Her Majesty's Government.
My Lords, the Mersey Docks and Harbour Board is one of the oldest public boards in this country; I think that 1857 was the date the noble Lord mentioned. Until the present Administration took over, the stock of this Board was, as the noble Lord said, trustee stock. It was thought to have all the disadvantages of Government stock, public authority stock, but the advantages of that stock as well; namely, that although there was no dynamism about it, there was no inflation proofing about nevertheless, one could think that the amount was secure.
Now we find this was all a misconception. The stockholders of Rolls-Royce thought that they were reasonably safe, but their grounds for that belief were certainly not as respectable as those of the stockholders of the Mersey Docks. The noble Lord, Lord Nugent of Guildford, said there was no legal liability resting upon the Government. One accepts this if one looks at the absolutely narrow definition of "legal liability". I cannot believe that there was not some ground for the Government being somewhat more involved, interested and, indeed, generous, than they have been.
The income of the stockholders has now been reduced by 30 per cent. Their position in the future under the proposed scheme, when it is known and applied, apparently is absolutely uncertain. The question is whether any certainty or comfort can be offered to them. I believe that one suggestion that was put forward in another place was that there should be a floor written into the Bill and that they should be guaranteed as to something like 50 per cent. of their previous income. The proposal was turned down, on the grounds that if half their previous income could not be provided then we should be back in square one and other legislation would be needed. That suggests that even 50 per cent. of their previous income cannot be expected. I noticed the noble Lord was most interesting in his explanation that the prospects
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of the new company were reasonable, that they are now under very capable direction and there is some chance that a fresh start will lead to better financial results. In that case, I wonder whether it would not be feasible to have some sort of cushion, floor or guarantee in the Bill which would give some comfort to the stockholders for whom the noble Lord expressed a good deal of sympathy.
That leads me to this question: can the noble Lord, or the Minister who will speak for the Government, tell us what opportunity will there be if we agree to this Bill going upstairs to the Unopposed Bills Committee, for evidence to be taken from stockholders or their representatives? How can the Committee assure themselves that it is not technically or financially feasible to write into the Bill something of the guarantee that I have mentioned? Will it be possible to take evidence from representatives of the stockholders? Will they be invited to give evidence? Will it be feasible for witnesses to be given the necessary assistance to enable them to appear before this Committee? I have been taught—and nothing that I have known has upset the belief that I have acquired—that the Select Committee on Private Bills in this House functions admirably. I am a little unhappy that this Bill goes to the Committee, unopposed as it is, partly because the stockholders themselves are not in a position to organise and put forward their case. I ask the noble Lord whether he can give us any assurance that their interests are going to be carefully considered by the Committee, if we agree that the Bill should go upstairs to the Committee.
7.25 p.m.
LORD SANDFORD: My Lords, this may be an appropriate point for me to make clear the Government's views on certain aspects of the Bill. When the Board were first faced with the financial crisis last autumn, they consulted my right honourable friend, the Minister of Transport, and a series of meetings took place. Having considered the situation following these, the Government were clear that it would be quite wrong, and contrary to their policy, to burden the taxpayer with the Board's liabilities to their security holders. However, they were fully aware of the problems involved and of the hardship caused to

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many of the small investors who, as my noble friend said, had considered the Board as "safe as the Bank of England". The matter was regarded nevertheless as essentially one for the Board themselves to solve and this the Board accepted. In the view of Her Majesty's Government, it was no solution to bail out the Board.
The effects of the crisis extended beyond the interests of the investors. Her Majesty's Government decided that assistance towards the financing of the new Seaforth Dock, so vital to the Port's future, should continue if at all possible, all the money for the scheme being provided by the Government through grants and loans under the Harbours Act 1964. On the understanding that the Board took all practical measures to ensure the future viability and stability of the whole Port of Liverpool, the Government undertook to make available further loans for Seaforth.
The only course open to the Board was to ask Parliament to enable them to take urgent short-term measures, including a moratorium on capital redemption and interest payments, and also to prepare for the longer term by way of a capital reconstruction. The Board's first Bill, prepared in great haste, proved unacceptable and was withdrawn—this second Bill, recently given its Third Reading in another place, has the Government's full support.
It has been suggested—and the noble Lord, Lord Beswick, has repeated the suggestion—that the Bill should have been a Government Bill. But the Board was created by private legislation. It was responsible for its own finances. In order to deal with the financial situation legislation was required. Clearly it was the Board's responsibility to promote such legislation. It does not follow that because the Board asked the Government for assistance the Government should promote the Bill.
The Government have, of course, been concerned, as the noble Lord, Lord Beswick, was concerned, that all security holders should receive equitable treatment, and they consider that this is provided by the Bill which also ensures—and this, perhaps, will go some way to meet his inquiry—that security-holders
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will have an important role in the new statutory company.
The Government are also a major secured creditor and it has been accepted that loans made or committed to the Board prior to November 27, 1970, should be treated in the same manner as all other investments made up to that time—these loans will therefore be subject to the terms of the scheme of capital reorganisation which the new Board of Directors will have to prepare under the Bill's provisions.
The Bill does, however, provide for all loans made since that date to receive priority ranking, as regards security. It is only right that loans made in the present circumstances should be afforded this measures of protection. However, as my noble friend Lord Nugent of Guildford said, the Government have already made it clear that the priority will be given up when an acceptable scheme of reorganisation has been introduced.
Faced as we are with the Board's present situation, there is nothing at all to be gained—and no noble Lord has attempted to pursue this—from rehearsing all the things that went wrong in the past. Post mortems, and attempts to apportion blame, will serve no useful purpose. The aim of the new Board and of their Chairman, Mr. Cuckney, is to put an end to the uncertainties that have been hanging over the port, and look to the future—a future in which all concerned with the port can work together to ensure its future prosperity. It is clearly essential therefore that the Board should be able to put their affairs in order as the Bill provides. The passage of this Bill without delay is the best way in which the port's future can be secured. It will enable the Government to continue with financial assistance for the Seaforth Scheme, which is vital to the future viability of the port. In that way the livelihood of those associated with the port will be protected and the best interests of the Merseyside region will be served. We believe that this Bill provides the best way of protecting the interests of those who have invested in the Board by giving them a stake in what we hope will be the successful future of this new Company, and a voice in the way in which it is to be run. I therefore ask your Lordships to give this Bill a Second Reading.
LORD BESWICK: My Lords, is not the Minister going to comment at all upon the questions I asked about the extent to which the Committee, if we agree that the Bill should go to that Committee, would be able to assure themselves on the basis of the evidence about the financial position of the Company and of the stockholders?
LORD SANDFORD: My Lords, the point I was making in response to the question asked by the noble Lord was this. I think that the interests of the stockholders are going to be better secured. The main point is that their interests will be secured by their having a voice in the running of the Company.
LORD BESWICK: My Lords, the noble Lord is saying that. What I am asking him is: How are the Committee who are due to consider this Bill going to assure themselves that what the Minister is saying is in fact the position?
LORD SANDFORD: My Lords, as the noble Lord said, this Bill will go now to the Committee on Unopposed Bills because there are no Petitions in opposition to it. We have a further stage when it comes back to us on reconsideration.
7.31 p.m.
THE EARL OF LAUDERDALE: My Lords, far be it from me to intervene in the procedural wrangle which has just occurred across the Floor of the House. Where the broad ocean does lean against the land it might be said of harbours, as it has been said of sea voyages, that they have many advantages but security is not one of them. My only wish is to be a well-wisher to the new management of a major national asset. I think others would agree that we have lately been living in an atmosphere of Greek tragedy. I personally remember visiting the Port back in 1967, and again in 1968, and one saw then signs of trade decline, notably the fall of imports from Australia, East Africa and the Mediterranean, with signs of labour trouble building up to the point of some 200,000 days lost in a single year. We saw the Mersey Docks Board burdened with an enormous capital debt, with fixed assets put at a replacement value of more than £425 million but fast obsolescent, with a capital debt which soared from something like £80 million in 1968 to £93 million
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now; and we saw that swallowing up whatever operating surplus there might be, and then we saw that disappear.
Enough has been said in another place about the past, enough at any rate to confirm the Minister of Transport's point that au fond what the harbour needs is not subsidies but management. I should like to support what has been said by the noble Lord, Lord Nugent of Guildford, and I think echoed from the other side, that we should congratulate the Mersey Board in getting Mr. Cuckney as their Chairman meantime.
Two lessons stand out and this is the opportunity to draw attention to them. The first is that advanced provision must be made during the lifetime of the profit-earning period of major assets to take care of the big terminal losses which are bound to arise at the end of their relevant useful life; that is not an easy thing to make provision for in a time of inflation, let alone in a time of inflation like this.
But the second, and I think more general, point does to some extent arise out of and, if I may say so with the greatest respect, impinges on something that was touched on by the noble Lord, Lord Beswick. I come to the question of Government policy. No doubt the Government are doing good in secret and by stealth. Of course, we should hail the Government's decision to continue supporting the Seaforth project. I cannot imagine how they could have done otherwise since much of the investment was already committed. But I am not alone; I believe many people join me in saying that we still await the emergence of a clear, intelligible, constructive, viable ports policy.
We have seen the National Ports Council reconstructed. We have seen a banker put in charge. We have seen non-port operators admitted to the Board, and operators removed from it. We can see the logic of that. But what is the Government's broad policy towards the modernisation of our ports? Do the Government now recognise that ports provision is as vital a part of our economic infrastructure as are roads and other facets of the transport service?
I am one who welcomes the latest road improvements announced by Mr. Walker a week or two back to link up the ports of the opposite coasts; and that plan

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alone suggests that the Government are thinking in a constructive way on this subject. But have the Government yet got a policy—and are they willing to declare it—towards reclaiming land suited to industrial development near deep water for the ports of tomorrow? I am one, and there are others too, who eagerly await the Government's decision on a MIDA on the Thames.
But to return to the Mersey, there are surely plenty of reasons to believe that under Mr. Cuckney and his Deputy Chairman, Sir Matthew Stevenson, the revolution of rising expectations will indeed carry the Mersey in its stride. The Sea-forth Basin, more than 500 acres with a turning circle of 900 ft. or more, will be in use on present form by 1972. This should help. Indeed, it is the key to the whole thing. Already five deep sea shipping interests have declared that they plan to use it, mainly for the Atlantic trade in grain and meat and containers. That should help—and indeed, as it were in brackets, one hopes that some of the falling Australian trade can be recaptured. The new meat berths, with something like a quarter of a million cubic feet of quayside cold store, fed by no fewer than five mobile conveyors and able to fill no fewer than 52 refrigerated trucks, should help also. The new grain silos with a capacity of 85,000 tons, able to unload from grain ships at 2,000 tons an hour, should help. And then finally there is the fast improving hinterland development. The M.62 to Yorkshire is already almost through and it will go through to the Humber by 1976. There is a great opportunity there for further container traffic. That, too, should help.
Above all, there are more hopeful signs on the labour front, and Mr. Cuckney's own report, issued last month, stating that agreement has now been reached to recruit some 700 dockers, is in itself a good sign. But, as he summed up the situation, surely we can take his words, which are these:
"Provided we can keep our costs under control, provided we avoid the damage of self-inflicted wounds, provided we do not drive traffic away by serious and arbitrary interruptions of service, provided we obtain the reliefs sought in the present Bill, we could begin to turn the corner in 1971".
My Lords, the Mersey needs this Bill now. I simply say God-speed to help
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our fertile land win out against the desert of the sea.
7.39 p.m.
LORD NUGENT OF GUILDFORD: My Lords, may I say just a brief word in answer to the noble Lord, Lord Beswick, who asked me a specific point. May I also thank my noble friend who has made such a helpful speech about the Port of Liverpool and who has so much information and enthusiasm for our ports, and has spoken so encouragingly about the prospects for the new Seaforth installation. With regard to the point which the noble Lord, Lord Beswick, put to me so persuasively about the position for the future of the bond holders and the possibility of some floor being established for them, some guarantee given to them to limit the measure of their loss or their risk, I do indeed feel my withers wrung by the noble Lord's persuasiveness; but I have to say that in my judgment it would be a handicap to the new chairman and the new Board to ask them to take on any specific commitment here.
In principle, as I see this concern and as my noble friends and right honourable friends in Government see it, it is really a trading organisation and therefore it must stand on its own feet. In my belief it is fatal for Government to be ready to come in to help trading organisations, because when Government do so it is asking the rest of the community to provide extra money. Some firms have to be willing to stand on their own feet and make a profit if we as a nation are to survive. My belief, and our belief as a Government, is that the right policy is to ask everybody to bear his share. That means that this Board, despite its strange constitution and history, must be asked to bear its share the same as everyone else. But there is this consolation for this particular Board: that the Government are, partially by grant and mainly by loan, making this massive new investment of £40 million to modernise this port, because they realise how vitally important the Port of Liverpool is to us nationally and how important it is locally in an area which has high unemployment, so that it is not left to face the wind entirely unprotected. The port is being given substantial support, and there is a prospect that in the new set-up it will

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become better and viable in the future. It has better things to look forward to. So I hope that your Lordships will feel that we should give the Bill a Second Reading and wish it well in future.
On Question, Bill read 2a, and committed to the Committee on Unopposed Bills.
7.43 p.m.
LORD SANDFORD: My Lords, I beg to move that this House do now adjourn during pleasure until 8 o'clock.
Moved accordingly and, on Question, Motion agreed to.
House adjourned during pleasure.
House resumed.

INDUSTRIAL RELATIONS BILL
8.0 p.m.
Consideration on Report resumed.
LORD STOW HILL LORD STOW HILL moved Amendment No. 89A:
Page 141, line 46, at end insert—
"(4) Where a joint application for an approved closed shop agreement has been made to the Industrial Court under the provisions of paragraph 1 of the Schedule 1 to this Act, the Industrial Court may by such an interim order, on the application of any party to such joint application as aforesaid, make an order that any closed shop agreement which immediately before the coming into effect of Part II of this Act was in operation between any two or more parties to such agreement shall continue to be in operation between the parties thereto, and shall, so far as reasonably practicable, be deemed to have remained so in operation from the date of the coming into effect of Part II of this Act until the making of such interim order, subject to such changes, it any, in the terms of such agreement as may seem to the Industrial Court to be just and equitable, and shall continue to be so in operation for any period up to and until the making by the Industrial Court of its final order on such joint application.")
The noble Lord said: My Lords, I move this Amendment with some trepidation and without very much hope that the Government will feel able to accept it. This Amendment, and also Amendment No. 89B (if the House will allow me, in order to save time, to refer to that Amendment in the same speech) are designed to afford a new approach to the much vexed question of the closed shop. The approach is new in this sense. At the moment, we have reached the point in Schedule 3 at which the Court is empowered to make interim orders. The
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Court is enabled to make by way of an interim order any order which it could have made upon a final disposing of any matter which is brought before it. That power is given by paragraph 22, and the relevant words read that the Court is empowered
"to make, as an interim order, any order which under this Act the Court could make as a final order in the proceedings".
My Lords, I am not quite sure that those words are very clear. One does not know what state of information the Court is assumed to be acting upon, and therefore it is not altogether easy to answer the question, "What is the final order that the Court could make in those proceedings?" But I take it that what is meant is that the Court could make by way of an interim order any order which it could make as a final order upon the assumption that it had the necessary evidence and material upon which to make such a final order.
The approach in Amendment No. 89A is somewhat different. As I have previously submitted to the House, there is a kind of lacuna in the arrangements made and embodied in Clause 17 of the Bill with reference to approved closed shop agreements. When the Bill becomes an Act, the situation will be that up and down the country there will be a number of closed shop agreements which are, and have been in many cases for many years back, functioning perfectly satisfactorily. We have discussed previous Amendments designed to preserve those existing closed shop agreements, but without successfully persuading the Government to agree to any of them. What the first Amendment, Amendment No. 89A, purports to do is the following. It assumes that a perfectly normal joint application for a closed shop agreement has been made to the Industrial Court under the provisions of Clause 17 and Schedule 1 to the Bill. It assumes at the same time that there is in existence a closed shop agreement complete in form, with all its terms well tried in actual experience, operating to the satisfaction of everybody and producing a state of orderly relationships and orderly negotiations in the particular sector of industry to which that closed shop agreement relates.
The Amendment is based upon the view that it really is most unfortunate if the effect of the Bill is going to be that,

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in a situation in which both parties have asked for an approved closed shop agreement and there is already in existence a perfectly satisfactory closed shop agreement, that closed shop agreement must be brought inevitably to an end; that the parties are going to be put to the necessity, after a lapse of time, of trying to pick up the pieces, of trying to put the thing together again, and embodying them in an agreement which the Industrial Court ultimately sanctions. It would, so the argument runs, be infinitely simpler, and conduce so much to the interests of the parties to the joint application, if, while their application for an approved closed shop is under consideration and is passing through the various stages which, under Clause 17 and Schedule 1, it has to pass, the existing closed shop agreement could be maintained in operation. It is purely an interim arrangement.
It is not as if I am here asking the Government to agree that the existing closed shop agreement should be sanctioned and kept in being for good and all. Not a bit of it. It is simply, if this Amendment is accepted, given an interim period of life until the Court can make an order upon the application for an approved closed shop agreement. That is what this Amendment does. The relevant provisions are that the Court can order that any closed shop agreement which, immediately before Part II of the Bill comes into effect, was in operation, shall, so far as practicable, be deemed to have remained so in operation from the date of the coming into effect of Part II of the Bill until the making of such interim order, subject to any necessary change, and thereafter it shall continue to be in operation until the final order is available from the Court on the joint application. My Lords, that is what the first Amendment does.
If I may have the agreement of the House to discuss now the second Amendment, No. 89B, as I proposed to the House a short time ago, the approach is rather different. Again, it assumes the existence of a perfectly satisfactory closed shop agreement. It would enable either party to that agreement to ask the Industrial Court to order, again by way of a purely interim measure, in order to safeguard for a period of time the existing position, that the existing closed shop agreement should continue for a period
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not in excess of a year. If the parties wish, or either party wishes, to avail themselves of that procedure, the Court is enjoined, on receiving an application for that purpose, to send the matter straight away to the Commission, and the Commission then has to say whether there is in its opinion a prima facie case that the conditions set out in paragraph 5 of Schedule 1 to the Bill (which we have discussed almost ad nauseam) are satisfied, and the Commission must report its decision on that to the Court as soon as possible. If the Commission reports in the affirmative, the Court then, as I have said, by way of an interim order, can continue the existence of the existing closed shop for one year. At the end of the year, that interim order expires, but it can be kept in being by a further application for an interim order for another year.
In other words, the interim order does not necessarily come to an end at the end of the year. Its life can be prolonged by a further application. That is the scheme in the second Amendment. The first Amendment assumes a joint application. The second Amendment permits of a unilateral application, but if there is a unilateral application it cannot proceed without the sanction of the favourable advice of the Commission. The Court refers it in that case to the Commission, and cannot make the order unless the Commission reports favourably that the conditions in paragraph 5 of Schedule 1 are shown to be present.
Those are the two alternative schemes. They are purely of an interim nature, and designed to achieve the very limited objective of keeping in being for a short time while the parties can, as it were, rearrange themselves, an existing closed shop agreement which has functioned perfectly satisfactorily over a period of time. It is based upon the submissions that it really will be a disastrous pity if all these excellent closed shop agreements tumble to the ground as soon as the Act comes into force. That is the way to chaos, and these proposals are designed to obviate that. I formally move the first of those two Amendments.
LORD DRUMALBYN: My Lords, I am grateful to the noble Lord for taking these two Amendments together and explaining them so clearly. The noble Lord has been at immense pains to try

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to devise some kind of scheme which will be acceptable to the Government. This is a difficult task he has set himself, because of the complexity of the arrangements involved. I am bound to tell the noble Lord that he has not quite succeeded yet. I think that his main premise is not right. It is that there is bound to be a lacuna, bound to be a gap.
At an earlier stage I drew attention to the fact that the Bill would be brought in by stages, and I would have liked to be able to give more details of that at the present time. Unfortunately the scheme has not yet been put in its final form, but I can at any rate tell noble Lords this. It is a matter that we have been considering very carefully indeed with a view to ensuring that the sequence of bringing into operation the various parts of the Bill will be logical, and that the transition from present arrangements to those which will be necessary under the new legislation will be such as to give industry a reasonable opportunity to adapt its agreements. Perhaps I could just say this in general terms—I think I have mentioned it before—the first stage must obviously be registration. The Registrar as soon as may be has to set up a register and so on, and then the Court has to be set up and its rules have to be written.
Until that has happened there can be no question of bringing into effect Clause 5 of the Bill and all that goes with it, so that quite an appreciable time must elapse between the time when the Bill actually passes, Royal Assent is given, and the time when this part, the material part from the point of view of the kind of agreements we are discussing here, will begin to bite. That being so, I think that the noble Lord's worst fears should be misplaced. I cannot be more positive than that until the final scheme has been made, but it is our intention that this sort of lacuna he is referring to will not exist.
But, my Lords, apart from that, supposing there is a gap, this Amendment on the face of it is a very reasonable attempt to deal with the problem. It would only apply where a joint application had been made, as the noble Lord said. It would only apply where a closed shop had been in operation prior to the
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coming into effect of Part 2 of the Bill, and it would seem therefore not unreasonable to permit that closed shop agreement to continue to operate temporarily until the Court had had a chance to consider the application. I think this is the Alb-stance of the noble Lord's suggestion.
On looking closely at the Amendment, I am bound to say that it certainly does present aspects which are not very acceptable to us. To begin with, it is not solely applicable to the initial interim period during which by some mischance a gap might occur. It is applicable at any time after Part 2 has come into effect. If there was a closed shop agreement in operation immediately before that time—and the intention is, of course, as far as possible that those who are unlikely to pass the test of an approved closed shop will make arrangements in the intervening period for acceptable agency shop agreements—that closed shop agreement, under the Amendment, could be deemed to have remained in operation until the interim order is made; and from the making of the interim order the reactivated closed shop agreement will be fully and actually in effect until the Court makes its final order on the joint application.
I must draw attention first to the fact that the closed shop agreement which will be deemed to have remained in force is described as "any", and this will include, the face of it, to pre-entry closed shop agreement. If that is the intention it could not be accepted. I think it would be void to that extent under the Bill. I should also draw attention to the duration of this revised closed shop agreement. It will remain in effect—and the words say—
"until the making by the Industrial Court of its final order on such joint application".
In cases where the Court approved the closed shop agreement under Schedule 1 that is a definite date, but the Court is not required to make a final order if the report of the Commission does not recommend approval. All that happens under Schedule 1, paragraph 7, is that
"in that case the Industrial Court shall not proceed further."
Similarly in paragraph 15, if the C.I.R. recommends the application but on a

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ballot the proposals do not secure the necessary majority
"the Industrial Court shall not approve the proposals."
This means that in the event of an approved closed shop not being approved as a result of the application, the interim order, and so the closed shop, which had existed prior to the Bill coming into operation, possibly a pre-entry closed shop, could continue in force indefinitely. This would not be acceptable. I think that the noble Lord drafted his Amendment on the assumption that a final order of the Industrial Court would be necessary to reject the application for an approved closed shop agreement as well as to approve it. That is not so.
Finally, it seems to me, on a close examination of this Amendment, that its effect could be to legitimise retrospectively any closed shop operated during the period from the implementation of Part II of the Bill until an application under Clause 17 had been made, however long that period may be. Presumably, any complaint by an employee during that period could not be heard or remedied and if it had been heard or remedied, the remedy would be cancelled or nullified when the parties concerned made their application. That looks to me to be a very serious and quite unacceptable degree of retrospection. These results, I am sure the noble Lord will appreciate (although I do not think he intended them), would be completely at variance with those that we seek to achieve by the closed shop provisions. Therefore, I could not recommend the House to accept that Amendment and I am afraid that very much the same applies to the other Amendment which he moved.
It would have very much the same kind of effect. In paraphrase it says: An application for an interim order to be made to the Industrial Court by either party to a closed shop agreement in force immediately prior to the coming into effect of Part II of the Bill. Actually I think it says, "any one or more of the parties" may make application. To continue the paraphrase: Then the Court to refer the application to the C.I.R. and they to consider whether a prima facie case is established; that the criteria of paragraph 5 are fulfilled and then to
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report; then the Court to make an interim order if the C.I.R. reports that a prima facie case has been established; and then the interim order to provide that the closed shop agreement should continue in full force and effect; and the interim order to expire after one year unless an application be made by one of the parties to the agreement when the Court may extend it indefinitely.
There is not a great deal between these two Amendments. I am afraid that the objections apply to both and not least to the concept of the apparent intention to continue the pre-entry closed shop; and so I am afraid that I cannot recommend the House to accept either of these Amendments.
LORD STOW HILL: My Lords, I am grateful to the noble Lord for his sympathetic and careful answer. I am also grateful for the information he gave in a general form as to the Government's intentions as to the bringing into operation of the successive Parts of the Bill. While I quite understand that the plans are still under consideration and the noble Lord cannot commit himself yet precisely to those plans, I think I understood him to say that, in particular, Clause 5 would not be brought into operation until the Industrial Court and the Commission, to use a loose phrase, were in being. So before Clause 5 brings the closed shop agreement to an end, there would be brought into being a court and a commission to which resort could be held. I am grateful to the noble Lord for indicating by nodding his head that I have correctly understood the intentions of the Government so far as they are precisely formulated.
LORD DRUMALBYN: My Lords, I take a slight exception to the word "precisely". They are not yet precisely formulated; they are broadly formulated.
LORD STOW HILL: My Lords, I am sorry if I misunderstood the noble Lord. There is a general plan and the noble Lord goes as far as he is justified in going in the light of the state of that plan.
LORD DIAMOND: My Lords, I hope my noble friend will forgive me for interrupting. Does he not think that he owes the Government a deeper apology for having accused them of precision in anything in this Bill.
LORD STOW HILL: My Lords, I never use the word "accuse" in relation to the noble Lord, Lord Drumalbyn. I use kinder terms to him. I think he is universally helpful and does what he can.
My Lords, I do not wish to take the time of the House further over Amendment 89B which seems to me to suffer from a characteristic which would make it unlikely that the Government would be able to accept it; namely, that it can be made at the instigation of one or more of the parties; that it does not have to be a joint application. But my hopes are raised as to the Schedule 1 and Amendment 89A. I think that I correctly recollect what the noble Lord said when I list three observations in particular that he made as to which I should like to make suggestions. I think they can be easily remedied. The first was that I think I understood him to say that he thought the expression in the last two lines, "final order on such joint application" would not in its terms apply to an order of the Court deciding not to proceed. If that was what the noble Lord intended, then that can be remedied easily. I will try to find the right language to make it apparent that the closed shop agreement must come to an end if the Court declines to grant the application. That is fairly easily disposed of.
The second criticism he made was that the interim order is unlimited in time in terms of the Amendment; that it might continue for a considerable period of time. That again I think I could easily remedy by inserting in the text of the Amendment some provision to the effect that the interim order will expire in, say, a year or something like that. The third criticism he made was that the effect of the Amendment might be to prolong the life of a closed shop for a very long period of time because there is no period of time specified in the Amendment within which after the coming into operation of Part II of the Bill the application must be made. That again is a feature of the Amendment which can easily be remedied.
If the noble Lord felt able to indicate to me that if I inserted language into the Amendment which required the application to be made by both parties, say, within a period of six months after the coming into effect of Clause 5; if I
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further provided that the interim order if made would expire at the end of one year, or some such period; and if I further chose more suitable language to describe the order of the Court upon the hearing of the application so as to make it certain that the final order to which I referred would include an order refusing the application—if I remedied those three qualities in the Amendment to which the noble Lord feels he must take exception. I do not know whether he would be able to look with less disfavour on it when we get to Third Reading. He has been most helpful and, if I may say so, very encouraging. If he thinks that these changes would make the Amendment more acceptable from the point of view of the Government, then from this side of the House I think we should be able to say that the effect of the Amendment so changed would preserve for a limited period of time a large number of existing closed shop agreements and for a time sufficiently long (though not too long) to enable the parties to make up their minds what they wanted to happen and to make a joint application for an approved closed shop agreement if they wished the existing closed shop agreement to continue and to take the form of an approved closed shop agreement.
My Lords, there is one final feature. The noble Lord will have observed that when the application is decided it can be in terms that any particular provision of the closed shop agreement can be changed in any sense in which the Court thinks it could be changed. That appears in the fourth line from the end. May I conclude by thanking the noble Lord sincerely for what he said. I do not know whether he will be able to communicate with me and let me know whether changes along the lines I have suggested may conduce to a useful result. If he could indicate by a nod that he would write to me on these lines, I would be most grateful to him. In any event, I ask leave for the Amendment to be withdrawn.
Amendment, by leave, withdrawn.
8.30 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 89:
Page 141, line 46, at end insert—
(".In so far as the rules make provision for the purposes of section (Review of ballot

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taken under Part It or Part III) of this Act, they shall include provision—

(a) as to the circumstances in which, and the parties by whom, an application can be made to the Industrial Court for an order under that section;

(b) as to any circumstances in which the Industrial Court is to be empowered to make such an order without any such application; and

(c) as to the persons who are to be, or may be made, parties to any proceedings before the Industrial Court in which (whether in pursuance of an application or otherwise) the Court considers the making of such an order.")

The noble Lord said: This Amendment has to do with the review of ballots taken under Part II and Part III. It is linked with the new clause we shall come to after Clause 156. Before we get to that, there is an Amendment in the name of the noble and learned Lord, Lord Gardiner. I have been in communication with him and indicated that what we are now doing in Schedule 3 is bound to be influenced by our decision on his Amendment, in the sense that if this Amendment is accepted, we shall have to alter Schedule 3.
LORD GARDINER: My Lords, I am quite prepared to take whatever course is most convenient to the noble Lord. I suppose that strictly, if we are dealing with Schedule 3, we cannot come back to it, and if we were to change our minds on this point, what would the position be then?
LORD DRUMALBYN: My Lords, that is a very reasonable question but I think that the answer is obvious. There is another stage of the Bill and if the noble Lord's Amendment were successful, obviously we should have to alter the Schedule on Third Reading in order to come into line with the Amendment. I think that I ought to make it clear that I do not propose to recommend the acceptance of the noble and learned Lord's Amendment. The Amendment I am moving is to enable the Industrial Court to make recommendations as to the review of ballots either under Part II or Part III. On a number of occasions on the Committee stage the noble and learned Lord, Lord Gardiner pointed out that provisions in the Bill which required ballots to be conducted by the C.I.R. or under the supervision of the C.I.R. do not afford any opportunity for appeal
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against the reported result of the ballot, or give the Industrial Court any option other than to accept the result as reported, even though it may be evident that a mistake has been made in the conduct or reporting of the ballot. The noble and learned Lord urged that there should be some statutory procedure for rectifying mistakes made by the C.I.R. or by any other body conducting a ballot under the supervision of the C.I.R.
My noble and learned friend the Lord Chancellor accepted the noble and learned Lord's view that the prerogative writ procedures would not enable a simple error of fact—for example, in the counting of ballot papers—to be corrected by way of an order in the Divisional Court. He also accepted that it would be desirable to enable mistakes made in the conduct of statutory ballots to be challenged in the Industrial Court. I would direct your Lordships' attention to the fact that the proposed Government Amendments would apply only to ballots held under the provisions of Parts II and III—these are the agency shop and recognition provisions in general. It is not intended that the new provisions should apply in respect of strike ballots under Clause 142, and therefore there would be no provision for any party to complain to the Industrial Court of a mistake made in the conduct of a strike ballot, nor, as a result, could the Court order a fresh ballot.
The new clause will enable the Industrial Court to review the reports of the C.I.R. as to the result of a ballot and if necessary to take action in two ways. If the Court finds that a simple mistake has been made, which does not invalidate the ballot and should be rectified, it may make an order amending the report. A new ballot would not then be taken. The C.I.R.'s report would be amended in accordance with the order and have effect as amended. The other course of action, ordering a fresh ballot, would be appropriate where the Court finds that rectification of the report would not be just and equitable—where, indeed, the ballot has been so misconducted that the only just course would be to declare its result to be of no effect. In these circumstances the Court may make an order quashing the ballot, whereupon action would proceed as if the ballot had never been held. The Amendment to Schedule 3 would

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enable rules of court to be made to cover such details as the circumstances in which and the parties by whom an application for review of the C.I.R.'s report may be made, the circumstances in which the Industrial Court may be empowered to institute a review without an application being made and the persons who may be made parties to the proceedings.
The provision in paragraph (c) is necessary because when the Industrial Court acts on its own initiative, interested parties should be entitled to be heard and to submit either that there was no error or misconduct or that, even if there was, it did not necessitate quashing the ballot and holding another. There may be circumstances, too, where the Industrial Court proposes to amend the C.I.R.'s report and an interested party may wish to submit that the Amendment proposed by the Court is the incorrect one. Paragraph (c) of the Amendment would enable rules to be made to provide for all these circumstances. I feel that these Amendments provide an adequate procedure for the rectification of mistakes. I should like to express our gratitude to the noble and learned Lord, Lord Gardiner, for having drawn our attention to this matter, and I commend the new clause and the Amendment to the House. I beg to move.
LORD GARDINER: My Lords, I am grateful to the Government for the consideration that they have been kind enough to give to my suggestion. There was obviously a lacuna and it was apparent that a rule would be necessary. I have no comment to make on this Amendment. The other points which may arise we can discuss later.
LORD SLATER: My Lords, I should like to know who is going to be responsible for taking these ballots and who is going to make the appointments of people to take the ballots. Three people are responsible for the jurisdiction of the Industrial Court, but I want to know who is to be responsible for conducting the ballot and for counting the ballot papers to obtain the result of the ballot. In my own trade union, when a ballot is taken it is counted not by people in the union but by some outside authority. Will there be an outside authority responsible for counting the ballot papers in the case of this Bill?
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Where is the new clause in connection with this?
LORD DRUMALBYN: My Lords, may I refer the noble Lord to Amendment No. 94, the new clause after Clause 156. So far as the noble Lord's other questions are concerned, if he will look at Clauses 12 to 16 he will see that they deal with the ballot for an agency shop. In Part II, dealing with the proposals for recognition, he will see also provisions for the ballot there, and I think he will get all the information he requires. In principle of course the C.I.R. is to be responsible for the ballot.
LORD SLATER: My Lords, I am seeking to get an answer from the noble Lord in charge of the Bill.
LORD DRUMALBYN: I am trying to answer the noble Lord. I have just said that in principle the C.I.R. is responsible for holding the ballots, and in the circumstances laid down in the Bill it can pass on that responsibility to the trade union in question if it thinks fit. But it is for the C.I.R. to make arrangements for a ballot or for somebody to hold a ballot under its arrangements, and the C.I.R. then reports to the Industrial Court the results of the ballot.
LORD TAYLOR OF MANSFIELD: My Lords, this is a little vague, so far as it concerns the question put to the noble Lord by my noble friend. The noble Lord, Lord Drumalbyn, says that the C.I.R. will be responsible for holding the ballot. So far, so good. But who will count the votes when the ballot has been held by the C.I.R.? I am not arguing merits and demerits, but I am asking for the information that my noble friend desired. Will it be an independent body that will count the votes? As my noble friend said, in the union with which we have had experience, on all important matters, particularly ballots for strike, the counting of the votes is done by an outside independent body. Would the noble Lord give some guidance on that point?
LORD DRUMALBYN: My Lords, the circumstances vary, in so far as the agency shop and the recognition ballot is concerned. This is expressed to be taken by the Commission in the case of recognition, or is to be taken under the supervision of the Commission by some other

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body. In either case the Commission determine what arrangements will best secure that the ballot will be properly conducted and that the voting in the ballot will be kept secret. This responsibility is left in the Bill to the Commission, and I think the noble Lord will have sufficient confidence in the Commission to leave it to them.
On Question, Amendment agreed to.
8.43 p.m.
EARL FERRERS EARL FERRERS moved Amendment No. 89E:
Page 142, line 8, at end insert—
("Time-limit for complaints under ss. 101 and 102
.—(1) Subject to the following provisions of this paragraph, the Industrial Court shall not entertain any complaint under section 101 or section 102 of this Act unless it is presented before the end of the period of six months beginning with the earliest date on which the action to which the complaint relates came to the knowledge of the complainant, or would have come to his knowledge if he had exercised due diligence.
The rules may provide that, in relation to complaints fulfilling such conditions as the rules may specify, the preceding sub-paragraph shall have effect as if, for the reference to a period of six months, there were substituted a reference to such shorter period as is specified in the rules.
Notwithstanding anything in the preceding provisions of this paragraph, the Industrial Court may extend the time for presenting a complaint under section 101 or section 102 of this Act to such extent as the Court may consider appropriate to make allowance for any period during which the parties have availed themselves of the services of conciliation officers or of other opportunities for conciliation with respect to the matters to which the complaint relates.")
The noble Earl said: My Lords, on behalf of my noble friend Lord Drumalbyn, I beg to move Amendment No. 89E. During the Committee stage an Amendment was moved by the noble and learned Lord, Lord Donovan, which sought to impose a time limit of six months for bringing a complaint of unfair industrial practice to the Industrial Court or a tribunal. There was wide agreement then that a time limit for complaint was necessary. But, as my noble friend Lady Tweedsmuir explained at the time, complaints which may be presented to the Court will vary considerably in their nature and importance, and we believe it desirable to be able to set different time limits for different types of complaints,
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and the best way of achieving flexibility is through the Court's rules.
Some noble Lords did express misgivings about consigning the imposition of time limits to regulations which would be subject to the Negative Resolution procedure. The noble Lord, Lord Beaumont of Whitley, proposed a solution which we think, on reflection, meets this criticism, and we have been happy to adopt it in drafting this Amendment.
The effect of the Amendment will be to allow the rules of the Court to impose varying time limits for complaints of unfair industrial practice or breach of duty, within an overall time limit of six months. The Court will also be given discretion to extend the time for complaint where the parties have attempted to resolve their differences by conciliation. There is obviously room for argument on what the overall time limit for complaint should be. Imposing too short a time limit involves the risk of requiring the injured party to start proceedings prematurely where that may not be in the best interests of resolving the dispute peacefully. On the other hand, with the passage of time, memories of events fade and witnesses become increasingly difficult to assemble.
These facts, taken together with the point made by the noble Lord, Lord Janner, also in the Committee stage, that individuals should not have the risk of proceedings hanging over their heads interminably, made us feel that these are powerful arguments against allowing a very extended period for complaint. On balance, therefore, we believe that the period of six months is the right one. I think the Amendment contains the elements to direct Parliamentary control, to which noble Lords rightly attached importance in the Committee stage, and yet it has the necessary degree of flexibility which we consider to be desirable. I beg to move.
LORD STOW HILL: My Lords, I do not criticise the period of time chosen, but I wonder whether the noble Earl can give some indication of what the precedents are with regard to prescribing time limits for bringing proceedings by subordinate legislation. I know that at one time in our Parliamentary history, certainly during the 1945 Parliament, there would have been a storm of criticism if subordinate legislation had been used for

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that purpose; that is to say, for prescribing the substantive structure of claims—namely, a period within which they had to be brought. I believe that in the more recent legislation that very salutary principle, and I say this with perhaps a rather old-fashioned echo, has been substantially departed from. I should be grateful if the noble Earl, this being a matter of some constitutional importance, can give us any indication of what the more modern precedents are. I do not think there are older precedents, although there may be, and if he has them on his brief I should like to hear them; if he has not, I shall quite understand.
LORD GARDNER: My Lords, perhaps I can raise a short point. I not only do not object to, but welcome the way that in this Bill everything is done to remind lawyers that they must not take into account anything that they already know, and that an unfair industrial practice is a new angle; it is quite right that you should not call an injunction an injunction order, and it is quite right that you should not call damages damages for compensation. An unfair industrial practice is not, as I understand it, what lawyers call a cause of action; it is something quite new. But, of course, for limitation purposes one has to be very exact, as we are in relation to the date of the issue of the writ or service of the writ and so on, because actions are started either by writ or summons. It is right that this should be something quite different. It is called "entertaining a complaint".
Then there is the expression, "when the complaint is presented". Does that mean presented in court, or does it mean sending in some document? Perhaps the noble Earl can give us some idea of what "entertaining" means. Does this mean that the Industrial Court should not hear the case in court, or does it mean that they send you back the document and say "Go away"? There is no definition. These of course are the same expressions as are to be found in Clauses 101 and 102. But there is no definition anywhere of what exactly a complaint is, of what presenting a complaint consists, or what is meant by "entertaining". If when the noble Earl comes to reply he can give us some indication about this we should be grateful.
EARL FERRERS: My Lords, the noble Lord, Lord Stow Hill, asked what precedents there were for putting in this form of legislation. The figure of six months is written into the Bill. The subordinate part of the legislation to which I think he was referring was where the Court, by its rules, is empowered to shorten this period of time. The very quick answer that I am able to give to the noble and learned Lord—and I would have preferred a little more time so as to make quite certain that my answer is correct—is that I do not know of a particular precedent where this form of subordinate legislation, as the noble and learned Lord calls it, has been used before. On the other hand, he will of course realise that the purpose of this is to give a maximum period in the Bill and only where the Court believes that it is in the interests of all concerned that the period should be less will a shorter period be provided. I would reassure the noble and learned Lord that in fact any such rules as are made by the Industrial Relations Court will have to come before Parliament for approval, and therefore his fears over that may not be quite as substantial as they may have at first appeared because in the end Parliament will have to approve the rules.
With regard to the points made by the noble and learned Lord, Lord Gardiner, I am sorry but I am bound to say that I was slightly concerned to follow exactly the points he was making. If he will be kind enough to repeat them as briefly as possible, I will try to follow them more clearly.
LORD GARDINER: My Lords, there is a time limit, and therefore we must know necessarily when the time limit begins to run and when it ends. As lawyers know, when one is dealing with "limitations" one has to be very precise as to what one is talking about. Where in our law we have limitations they run from the date of the issue of the writ or of the summons, for example. You start an action either by issuing a writ or summons and then you have the pleading saying what your case is. Then you get a date from the court and have an oral hearing. As I said, I was not objecting that the language was different; but here there is nothing like a writ or summons and you are told to "present a complaint". Does that mean presentation by

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counsel before the Court or does it envisage a little document of some kind and, if so, is it enough to write on a piece of paper and say, "I am complaining about the following"?
No doubt rules will be made to deal with the detail, but I am wondering whether, as this is an entirely new form of legal procedure, the Government would tell us what they have in mind in talking about "presenting a complaint" and what it means. Ultimately, if it is a document somebody will have to decide whether you "present" a complaint when you post it or when it is received. I am not asking for details of that kind. I should like to know whether "entertaining a complaint" means that the Court would accept or decline to hear that party, or if it means that if they get a written complaint and it is out of time the Court itself will write back to you and say, "Go away".
LORD DRUMALBYN: My Lords, I do not know whether I can be of any more help to the noble and learned Lord but, as he himself has said, we are here dealing with an entirely new form of court and I should have thought that the natural thing would be to leave it to the Lord Chancellor to make the rules and that the rules would cover this sort of thing simply because it is a new form of court. I speak without special tuition on this subject, but that is the way in which I read it and I think he himself would read it in that way also.
LORD DIAMOND: My Lords, I will not detain your Lordships very long, but I should like to say, first of all, for the benefit of the Liberal Benches—
SEVERAL NOBLE LORDS: Hear, hear!
LORD DIAMOND: —and there is no noble Lord better at timing his entry than the noble Lord who has just come in—how grateful we all are that the Government should have accepted at all events the idea that has been put forward and enshrined it in the provisions which they are at present making. I think it right to say this, because the Government have been very helpful in our proceedings to-day in accepting many Amendments stemming from proposals to your Lordships' House from these Benches and from the Liberal Benches. Those of your Lordships who at any time might have
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felt that these proceedings were not of great fruitfulness will have been delighted to know that your fears were entirely baseless and that the purpose which your Lordships' House has carried out with diligence and discipline has been to a certain extent served. I think therefore it is up to me to say how grateful I am to the Government for the number of Amendments and ideas which they have accepted, including the one which is now before us.
I wonder whether, in not such a serious mood, I might try to help my noble and learned friend Lord Gardiner who asked, in relation to subsection (3), what "presenting a complaint" was. My noble and learned friend is very experienced in presenting a play, he being a well-known "angel". This is not quite that same field of art: a complaint is something rather similar to a chamber concert where the artistes present have no musical instruments but only their easels with them, and together they produce something for presentation which is called a "complaint". I hope that I have made the subject clear to my noble and learned friend; and I repeat my question to the Government.
LORD BEAUMONT OF WHITLEY: My Lords, I should like to apologise to your Lordships' House for not being here at the beginning of this debate. I hope that I shall be forgiven for rising to my feet, seeing that the Liberal Benches were mentioned as I entered. About this particular Amendment, I too would like to add my thoughts. I am not entirely certain that in fact the Amendment produced by the Government was based on what I meant to convey at the Committee stage.
LORD DIAMOND: The noble Lord said so.
LORD BEAUMONT OF WHITLEY: I am aware, my Lords, that the Government think it is based on what they thought I meant to convey at that time, but I was not then entirely certain that they had fully understood the point I was trying to put. Nevertheless, I think that the Amendment they have put forward is a good one and I should like to join in the remarks made by the noble Lord, Lord Diamond, about the way in which the Government have taken the Amendments that have been put forward

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at various stages, which were not designed in any way to wreck the Bill or change it enormously; and when they have been clear about that, they have been most helpful. I was able to quote a large number of instances yesterday during a Press conference when I was explaining exactly how far we hope to get with the Immigration Bill in your Lordships' House; and this was one of the examples which I quoted as to how far one can get. I believe this to be a good example of the way in which your Lordships' House has been able to amend the Bill, and we are very grateful for the extreme courtesy and consideration of the noble Lord in meeting the points. I should like to repeat my apologies to your Lordships' House for any seeming discourtesy in having arrived late.
On Question, Amendment agreed to.
9.0 p.m.
EARL FERRERS EARL FERRERS moved Amendment No. 89F:
Page 144, line 1, leave out from ("may") to end of line 5 and insert ("remove a member of the Commission on the ground of incapacity or misbehaviour").
The noble Earl said: My Lords, on behalf of my noble friend Lord Drumalbyn I beg to move this Amendment which in fact fulfils an undertaking to the noble Lord, Lord Stow Hill, at the Committee stage, to bring the wording of this paragraph into line with the similar provision in paragraph 6 relating to the removal of appointed members of the Industrial Court. We have already discussed this matter. I beg to move.
On Question, Amendment agreed to.
LORD STOW HILL LORD STOW HILL moved Amendment No. 89D:
Page 144, line 30, leave out from ("meetings") to the end of line 32.
The noble Lord said: My Lords, may I first use this opportunity for doing what I should have liked to do on the last Amendment, which is to express my very sincere thanks to the Government Front Bench for having moved the last Amendment and to the noble Lord, Lord Drumalbyn, in particular for implementing his promise.
Amendment 89D deals with a slightly different subject, although it is connected
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with the last Amendment. We discussed at the Committee stage the importance of making certain that the Commission on Industrial Relations was seen to be a body independent, able to take an objective view as between the opposing sides of the table and not unduly subject to the control of the Executive. We had a discussion as to its constitutional position, and as a result of that discussion the noble Lord, Lord Drumalbyn, undertook to make the change which he made in the last Amendment which your Lordships approved.
The Amendment which I am at present seeking to move is designed to promote the objective of making sure that the Commission is universally recognised as being independent. It is designed to conduce to that objective in the following way: in Clause 34 your Lordships will see provisions as to the conduct by the Commission of its affairs, and the words which I seek to leave out in Clause 34 are
"but in doing so shall act in accordance with any general directions which may from time to time be given to them by the Secretary of State."
The submission which I make to the House is that that is an unnecessary subjection of the Commission to the Executive. I do not quite see what useful purpose is to be served by giving the Secretary of State the power to give general directions to the Commission as to how it runs its affairs. That is what it comes to. The effect of the presence of that power must be, one would submit, that perhaps not greatly but to some extent it may tend to undermine the authority and standing as an independent body of the Commission.
This is a short point. As I say, it follows very much on the previous Amendment and I beg to move it for the reasons I have given. One reason is that we should support in every way the authority and independence of the Commission, and when it is made subject to the Secretary of State's general power of giving directions that, so far as it goes at any rate, will tend to undermine the position of the Commission. I beg to move.
THE EARL OF BALFOUR: My Lords, here is it not most important for the

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Secretary of State to have power to decide what shall form a quorum? This I find is very difficult in lots of things one may come across. Even with all sorts of trust deeds and things like that there is sometimes great complication in deciding what shall form a quorum or how many people shall sit. We do not yet know how much the Commission will be involved. This gives the Secretary of State possible powers to appoint an extra few people if needed. I think this is more surely the meaning, than for the Secretary of State to have powers to ask the Commission to alter any deliberations they have or prevent them from carrying on their own procedure. This clause appears to me to deal more with the matter of a quorum.
LORD DRUMALBYN: I am grateful to the noble Lord, Lord Stow Hill, for introducing the Amendment in the way he did. I am grateful to my noble friend. I did suggest at an earlier stage that because the quorum of the Commission might vary this might be one of the occasions when a general direction should be given. I merely instanced that as a possible case, quite off the cuff; but I should like to emphasise very strongly that we do share the noble Lord's wish that the Commission should be, and should he seen to be, independent and completely free of Government control. But we are here talking of the proceedings of the Commission only, and the provision for direction by the Secretary of State is qualified very much by the word "general"—a word we are very familiar with now in the nationalised industries in "general directions"—and does not relate to day-to-day conduct of their business in any way at all. It certainly would not be aimed at any particular case or person. The Secretary of State could not, even if he wished, direct the Commission as to the conclusions they should draw and the recommendations they should make in a particular case. This could not possibly he done. There is no obligation on the Secretary of State to give directions, and the Government regard this provision merely as a necessary precaution against the possibility of a procedural deadlock which the Commission is unable to resolve by itself. I hope that the noble Lords opposite can accept that it is not in any way incompatible with the independence of the Commission, which the Government are as anxious to ensure as they are.
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This kind of reserve power is one which all Governments have retained over bodies that they set up, and I do not think that this one should be any exception.
9.8 p.m.
LORD STOW HILL: My Lords, I am grateful to the noble Lord for what he has said. If the power is so hedged around as he has described it, is it really worth while preserving at all? I listened closely to ascertain what he had in mind and he said that really the general power was designed to deal with what I think he described as a "procedural deadlock". I just do not know what that means. Does it mean that if they start hitting each other across the table the Secretary of State will say, "Do not hit each other"? It is such an unlikely thing to happen, and I submit that this power produces a bad impression.
The power clearly could not be used for the purposes of regulating their day-to-day proceedings, and the situation when it could be brought into effect is likely to arise on such rare occasions among sensible, intelligent people; and one assumes that such people will be appointed. Is it really worth while retaining? I should be glad if the noble Lord would give further thought to this at a later stage. It seems a pity to have this power included in the Bill when it will create a bad impression and will serve no useful purpose.
LORD DIAMOND: My Lords, the noble Lord—or at least those of my noble friends who come from the North—will recollect that in the earlier days of this century there was a most important official known as a "knocker-up". But the important question was who knocked up the knocker-up, and one is familiar with the song about the knocker-up's knocker-up. Your Lordships may think this a facetious remark. Not at all. It is an attempt to show how ridiculous is the refusal of the noble Lord to accept this Amendment. Here is the Commission, which is to advise some of the largest companies and the largest unions in this country as to how to regulate their proceedings. That is what the Commission is about, and it is intended that the Commission shall be peopled with individuals of great distinction who will be able, by their authority, their experience and their ability to demonstrate to those who come to seek

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advice from them, that if one really wants to know how a procedure should be worked out and carried out all one has to do is to consult the Commission. Yet here is a proposal which rests on the assumption that the Commission is not capable of working out its own procedure.
LORD BERNSTEIN: My Lords, it is not trusted.
LORD DIAMOND: My Lords, as my noble friend has said, it is not trusted. It is such a slur on their ability and such a denial of all the hopes that the Government are pinning on the Commission, that I should have thought the Government would be the last people to refuse this Amendment. I really do beg the Government to think again. It is quite absurd to suggest that of all bodies the Commission, the final resting place of all decisions as to what is proper and right in procedure-making, should have their own procedures fixed by the Secretary of State and, when they are unable to agree on such simple matters as the quorum necessary for their meetings, should have to be assisted by the Secretary of State.
Of course we accept that all Secretaries of State have endless wisdom, but sometimes they have not time to give careful thought to whether the quorum necessary for a meeting of a particular body should be two or three, or four or five. Sometimes they have other things to do. I should have thought that the Government would be impressed by the arguments put forward by my noble friend Lord Stow Hill, who has made a most magnificent contribution to our debates to-day and has shown his ability to help the Government with their Bill. I should have thought they would be impressed by his arguments and would wish to reconsider now what they have just said. I am afraid we would not be prepared to allow the Government to continue with
the kind of nonsense that is in the Bill at the moment unless they are prepared to say something helpful.
LORD DRUMALBYN: My Lords, I do not know whether the noble Lord will find it helpful, but perhaps he will allow me just to say this: when the Party opposite set up the Prices and Incomes Board under the Prices and Incomes Act they incorporated an almost exactly similar provision. In fact, so far as can be traced it has not been used, but nevertheless it was there and one can never exactly foresee the future. There are occasions when independent bodies like to be told what to do.
This is a very narrow point and I am afraid I could not concede. There is a precedent and I think there is a reasonable case for it. I certainly do not think it would be worth pressing to a Division in view of the precedent.
LORD BEAUMONT OF WHITLEY: My Lords, since it is the Minister who has just spoken, I imagine I am in order in speaking for the first time on this Amendment. I entirely agree with the noble Lord, Lord Diamond and the noble Lord, Lord Stow Hill. This is a total nonsense; it will never be used. But, honestly, I would not have thought this Amendment was worth dividing on. It may be that the noble Lord, Lord Diamond, will want to divide. The point is that this will never be used; it is one of those nonsenses which Governments of every kind, as the noble Lord, Lord Drumalbyn, almost went so far as to say, incorporate in every Bill. It is not a danger to the liberty of the subject or the liberty of the Commission. I would not have thought it was worth our while trooping through the Lobbies.
9.15 p.m.
On Question, Whether the said Amendment (No. 89D) shall be agreed to?
Their Lordships divided: Contents, 25; Not-Contents, 72.

CONTENTS

Addison, V.

Delacourt-Smith, L.

Hughes, L.

Bernstein, L.

Diamond, L.

Longford, E.

Beswick, L.

Gardiner, L.

Popplewell, L.

Brockway, L.

Garnsworthy, L. [Teller.]

Ritchie-Calder, L.

Buckinghamshire, E.

Heycock, L.

Rusholme, L.

Champion, L.

Hoy, L.

Shackleton, L.

Slater, L.

Strabolgi, L. [Teller.]

White, Bs.

Stonham, L.

Taylor of Mansfield, L.

Wootton of Abinger, Bs.

Stow Hill, L.

NOT-CONTENTS

Ailwyn, L.

Exeter, M.

Molson, L.

Albemarle, E.

Falkland, V.

Mowbray and Stourton, L.

Auckland, L.

Ferrers, E.

Napier and Ettrick, L.

Balerno, L.

Ferrier, L.

Nugent of Guildford, L.

Balfour, E.

Fortescue, E.

Oakshott, L.

Barnby, L.

Glendevon, L.

O'Neill of the Maine, L.

Belhaven and Stenton, L.

Goschen, V. [Teller.]

Rochdale, V.

Belstead, L.

Gray, L.

Ruthven of Freeland, Ly

Berkeley, Bs.

Greenway, L.

St. Aldwyn, E.

Boston, L.

Grenfell, L.

St. Helens, L.

Bridgeman, V.

Gridley, L.

St. Oswald, L.

Brooke of Cumnor, L.

Grimston of Westbury, L.

Selkirk, E.

Brooke of Ystradfellte, Bs.

Hatherton, L.

Selsdon, L.

Brougham and Vaux, L.

Inglewood, L.

Sempill, Ly.

Burton, L.

Jellicoe, E. (L. Privy Seal.)

Sinclair of Cleeve, L.

Colville of Culross, V.

Kemsley, V.

Somers, L.

Craigavon, V.

Kilmany, L.

Stonehaven, V.

Crathorne, L.

Kilmarnock, L.

Strange, L.

Cromartie, E.

Lauderdale, E.

Strathclyde, L.

Davidson, V.

Macleod of Borve, Bs.

Terrington, L.

Denham, L. [Teller.]

Macpherson of Drumochter, L.

Vivian, L.

Drumalbyn, L.

Margadale, L.

Wakefield of Kendal, L.

Dundee, E.

Merrivale, L.

Wigram, L.

Elliot of Harwood, Bs.

Mersey, V.

Wrottesley, L.

On Question, Amendment agreed to.

9.23 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 90:
Page 145, line 24, at end insert—
("(3) In making arrangements for any such ballot, the Commission may invite any person who is the employer of any workers eligible to vote in the ballot to provide premises and other facilities for enabling the ballot to be taken in accordance with the arrangements.")
The noble Lord said: My Lords, this is an Amendment standing in the names of my noble friend Lord Thorneycroft and myself. It is an Amendment of the utmost clarity. I do not think I need to explain it in any way at all. It gives effect to what has been already agreed. We should have had to put it in four times as it was originally incorporated. We do it here once, and I think it serves its purposes admirably. I beg to move.
LORD DIAMOND: My Lords, there is no need to delay your Lordships on this Amendment, which has been moved so persuasively by the noble Lord, Lord Drumalbyn, with the powerful support of his noble friend Lord Thorneycroft. It is a very acceptable Amendment to us.
LORD SLATER: My Lords, I should just like to say to my noble friend and
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noble Lords that I am not surprised at this Amendment, or at the Government's giving way and putting down this type of Amendment. After all, it is the industrialists, the big companies in this country, who are behind this Bill along with the Government, while the trade unions take a different attitude to it. They do not want it. It does not belong to them, it belongs to the industrialists, and we have the Government coming along and supporting the industrialists' request. They are the employers of labour, and they are the people who are going to provide the facilities for carrying out the ballots that have to take place on their premises. It could be that anything up to 2,000 people will be involved in a ballot. Therefore, I am not surprised that this Amendment, which has been accepted by my noble friend Lord Diamond, has been put forward for our approval.
LORD DRUMALBYN: My Lords, that sounds to me like a rather critical speech. I should have thought it was a very reasonable proposition that the Commission, if it chooses, may invite anyone who is an employer of workers to provide premises and other facilities for enabling a ballot to be taken on his premises to which the workers are accustomed to go. There is no obligation on the employer to accede if he does not want to. This

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provision is put down only as a convenient and, I should have thought, sensible way of carrying out a ballot. If the Commission does not think it either convenient or sensible, then it will not invite the employer to do it. Here, again, this is a matter which we can leave to the good sense of the Commission.
LORD SLATER: My Lords, if the employer is not prepared to allow the use of his premises for a ballot, will the Commission get to know the names of all the employees and correspond with every one of them? It is no use the Liberal Peers turning round on Labour Peers. We have had too much experience in the labour field—
SEVERAL NOBLE LORDS: Order!
LORD TAYLOR OF MANSFIELD: My Lords, what happens if the employer does not accede to the request of the Commission? I remember that a long time ago there were two rival unions in the Nottinghamshire coalfield and we had to have a ballot. The T.U.C. were anxious to ascertain the wishes of the men, and to find out which union they desired they undertook to have a ballot, to provide the money and to provide a reputable firm of solicitors in Nottingham to supervise the ballot and count the votes. But the colliery owners would not allow the ballot to be taken on their premises, so, strange to relate, it had to be taken on the public highway. If any of those taking part had put one foot on the colliery premises they might have been prosecuted. I do not say that what happened some years ago in Nottinghamshire would happen again, but it is quite possible that an employer may not accede to the request of the Commission to take a ballot on his premises. In that event, what would be alternative?
9.30 p.m.
LORD DRUMALBYN: My Lords, may I reply to the noble Lord, with the consent of the House? We have confidence that the Commission will be a responsible body and if this expedient fails they will find another. The responsibility is theirs.
LORD TAYLOR OF MANSFIELD: My Lords, I do not want to speak again—
SEVERAL NOBLE LORDS: Order!
LORD TAYLOR OF MANSFIELD: —but I would like to say that that is a very, very vague answer.
LORD SLATER: They do not let you speak, they order you down.
Schedule 6 [Provisions relating to Industrial Tribunals]:
EARL FERRERS EARL FERRERS moved Amendment No. 90B:
Page 162, line 17, leave out ("(e) of section 155(1)" and insert ("(f) of subsection (1) of section 155 ").
The noble Earl said: My Lords, this Amendment together with the next Amendment, No. 90C, are, like Amendments Nos. 88H and 88J which we have already discussed, contingent on the acceptance by the House of Amendment No. 93J which comes later. This Amendment seeks to add to the categories of information protected from disclosure by Clause 155, information obtained by an employer for the purpose of legal proceedings. The Amendment which we took earlier enabled the Industrial Court to sit in private when such information is given in evidence. These Amendments make similar provision in respect of industrial tribunals, in order that they too may hear legally privileged information in private. Although the House has not yet fully debated Amendment 96J, I hope that, with this brief explanation, your Lordships will agree to this Amendment.
EARL FERRERS: My Lords, I beg to move Amendment No. 90C.
Amendment moved—
Page 162, line 20, leave out ("the said paragraph (e)") and insert ("paragraph (e) of that subsection").—(Earl Ferrers.)
LORD BELSTEAD LORD BELSTEAD moved Amendment No. 90D:
Page 162, line 38, leave out from ("Act") to second ("the").
The noble Lord said: My Lords, I beg to move this Amendment, and would ask if we might discuss with it Amendments Nos. 90J and 90E. These three Amendments are necessary for technical reasons and it would be helpful if they could be

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taken together. They do not introduce a new principle, but they are important. Schedule 6 deals with matters which are to be covered by regulations governing proceedings before industrial tribunals, and paragraph 5 deals in particular with complaints under Clause 106. Complaints under that clause may relate either to unfair dismissal or to unfair industrial practices under Clause 5, and in both cases, of course, the employer is concerned.
As originally drafted this paragraph 5 was restricted in its application to complaints of unfair dismissal, and therefore when providing for a time limit for the presentation of such complaints it laid down a period of four weeks beginning with the effective date of termination. However, my Lords, complaints under Clause 5 may be about acts of discrimination, which could be over a period of time. The wording of this paragraph must therefore take account of this difference in the types of complaint covered by Clause 106, and this Amendment, No. 90J effects that. These Amendments will remedy the deficiencies of the original draft by providing that the period permitted for presenting complaints will be four weeks from the effective date of termination when the complaint relates to a dismissal, and in other cases four weeks from the date of the action complained of or, where the action is repeated, from the latest date on which it occurred.
May I draw the attention of your Lordships to the third Amendment, No. 90E, which is connected with Amendments which were moved by my noble friend Lord Jellicoe to Clause 32? At that time he apologised because this Amendment No. 90E was not tabled, although he spoke to the general principle of the matter. Regulations made under this paragraph 5 of Schedule 6 will be subject to any order revoking the exemption of a voluntary dismissal procedure made by the Industrial Court under Clause 32, which directs that employees dismissed during a period immediately prior to the date of such an order shall have an extended time in which to make a complaint of unfair dismissal through the statutory machinery. I hope you will take the view that this safeguards the rights of appeal of employees who are dismissed during a period in which there has been a break
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down of the exempted voluntary procedure. I beg to move.
LORD BELSTEAD: My Lords, I beg to move Amendment No. 90J, which is a consequential Amendment.
Amendment moved—
Page 162, line 41, leave out ("with the effective date of termination") and insert—
("(a) in the case of a complaint relating to dismissal, with the effective date of termination, or
(b) in any other case, with the date of the action specified in the complaint (or, if that action occurred on two or more dates, the latest of those dates)").—(Lord Belstead.)
LORD BELSTEAD: My Lords, I beg to move Amendment No. 90E, which is a consequential Amendment.
Page 162, line 42, leave out from ("termination") to end of line 43 and insert ("unless the tribunal is satisfied that in the circumstances it was not practicable for the complaint to be presented before the end of that period.
(2) Any provision made by regulations in pursuance of the preceding sub-paragraph shall have effect subject to any order of the Industrial Court under section 32 of this Act.").—(Lord Belstead.)
LORD STOW HILL: My Lords, I do not quite follow how the second paragraph of this Amendment operates. Supposing a procedure agreement is revoked under what will be Section 32 of the Act, and employees have been dismissed shortly before the order revoking it, they are to have an extended time in which to prefer a complaint. I do not see how that is achieved by language which says:
"(2) Any provision made by regulations in pursuance of the preceding sub-paragraph shall have effect subject to any order of the Industrial Court under section 32 of this Act."
What is the form of the order which is envisaged which might automatically have an effect on the regulations? Could the noble Lord give me an example? I cannot envisage how that is supposed to work.
LORD BELSTEAD: My Lords, I am afraid that I cannot give an off-the-cuff answer. I thought the noble Lord was going to ask me about the real effect of the word "subject" which, so far as I know, means waiting for an order. The order was debated by the House when Clause 32 was debated. I am sorry that

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I cannot give the noble Lord a more satisfactory answer.
LORD DRUMALBYN: My Lords, may I draw the noble Lord's attention to Clause 32(3)(b) which has something to do with this.
LORD BELSTEAD LORD BELSTEAD moved Amendment No. 90F:
Page 162, line 43, at end insert—
(".In relation to proceedings on corn-plaints under section 107 of this Act, the regulations shall include provision precluding an industrial tribunal from entertaining such a complaint unless it is presented before the end of the period of four weeks beginning with whichever is the West of the following dates, that is to say—

(a) the date of the action specified in the complaint (or, if that action occurred on two or more dates, the latest of those dates);

(b) the earliest date on which that action came to the knowledge of the complainant;

(c) where the complaint relates to a matter in respect of which an application has been made under section 81 of this Act, the date on which the registrar gave notice of his conclusions on investigating that matter or gave notice that he had determined not to proceed with the application.")

The noble Lord said: My Lords, this Amendment also imposes a time limit for the presentation of complaints to an industrial tribunal, but this is about unfair industrial practices under Clauses 66 and 70, which are the guiding principles, and about breaches of the rules of organisations of workers and employers. It extends a principle that I have submitted to your Lordships and with which your Lordships have agreed. I have moved this Amendment as briefly as possible. I beg to move.
9.38 p.m.
LORD BELSTEAD LORD BELSTEAD moved Amendment No. 90H:
Page 162, line 45, at end insert—
(".Where in accordance with the regulations an industrial tribunal determines in the same proceedings—

(a) a question referred to it under Part I of the Redundancy Payments Act 1965, and

(b) a complaint presented under section 106 of this Act,

section 9(2)(b) of that Act (whereby a dismissal is to be presumed, unless the contrary is proved, to have been by reason of redundancy) shall not have effect for the purposes of the
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proceedings in so far as they relate to the complaint under section 106 of this Act.")
The noble Lord said: My Lords, this is a small, technical Amendment. There will no doubt be occasions when an employee, who is uncertain about the reason for his dismissal, will make a claim to a tribunal for a redundancy payment under the Redundancy Payments Act 1965 and, at the same time, a complaint of unfair dismissal under Clause 106 of this Bill. This is what, so far as we know, is open to any employee to do if he or she wishes. It is envisaged that the tribunal regulations will enable a tribunal to deal with two such claims concurrently in the same proceedings. Section 9(2)(b) of the Redundancy Payments Act provides that where a claim under that Act is referred for determination by a tribunal, for the purposes of that reference
"an employee who has been dismissed by his employer shall, unless the contrary be proved, be presumed to have been so dismissed by reason of redundancy."
Your Lordships may agree that in concurrent proceedings of the kind I have described, where an employee is bringing a complaint either under the Redundancy Payments Act or under Clause 106 of this Bill, this presumption of redundancy as the reason for dismissal really should apply only to the claim under the Redundancy Payments Act and should not apply to the complaint under Clause 106 in relation to unfair dismissal. Indeed, it strikes me that it would be extremely unfair to the employee if this were so. It is for this sole purpose that I move this Amendment. I beg to move.
Clause 128 [No compulsion to work or to take part in industrial action]:
9.41 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 90A:
Page 95, line 44, at end insert—
("( ) Any power conferred on a court by the Employers and Workmen Act 1875—

(a) to accept security for the performance of a person's contract, or

(b) having accepted such security, to order performance of the contract accordingly, shall cease to be exercisable.")

The noble Lord said: My Lords, I beg to move Amendment No. 90A. The purpose of this Amendment, together

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with the related Amendment to Schedule 9, repealing certain sections of the 1875 Employers and Workmen Act, is to remove any inconsistency in that Act with Clause 128 of the Bill which prohibits any court from making an order for specific performance of a contract so as to compel an employee to do any work. Clause 128 prevents any court from compelling an employee to do any work by an order for specific performance of a contract of employment. However, although, as I mentioned in Committee stage, that part of Section 6 of the 1875 Act which gives a court a mandatory power to order a specific performance of a contract was repealed by Section 1 I of the Family Law Reform Act in 1964, the power of a magistrates' or a county court to order performance of a contract with the consent of the parties and in the giving of security is still retained in Sections 3, 7 and 8 of that Act.
While it is true, as the noble and learned Lords, Lord Gardiner and Lord Donovan, have pointed out, that these provisions and others in the Act are rarely, if ever, invoked, we feel—and I think your Lordships will agree—that continued retention of these provisions in the Act would appear to conflict with the mandatory prohibition in Clause 128(1) against performance of a contract. The Amendment therefore sets out the principle that the powers of a magistrates' court or a county court under the 1875 Act to accept security and order performance of a contract are to cease to be exercisable. This supplements the enactment in Clause 128(1) of the equity principle that no court shall order specific performance of a contract. We think it desirable that this principle should be set out in the body of the Bill in addition to repealing these sections of the 1875 Act in Schedule 9.
Your Lordships will note that the Amendment refers to "persons" rather than to "employees". This is because the 1875 Act deals with disputes between employers and workmen, and the definition of "workman" in that Act is confined substantially to manual workers. Other types of employees would not therefore be affected by this provision. This Amendment is related purely to the proposals we intend to make to repeal the provisions I have mentioned in the 1875 Act. When we discuss Amendment
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No. 98B we can deal more fully with the reasons for retaining for the time being other provisions in that Act. My Lords, I beg to move.
9.45 p.m.
LORD GARDINER: My Lords, I hope the noble Lord, Lord Drumalbyn, may be prepared to withdraw this Amendment. I suppose that any Government which introduces an enormous Bill of this character must include in it some nonsense, but this is an enormous piece of drafting of double or treble nonsense. The Government are providing for the repeal of all the provisions by which a Court can order such security to be given. What is the point of saying that the powers of the Court shall cease to be exercisable when we are removing in the same Bill the only powers which such a Court has? On that view this Amendment is clearly unnecessary. But indeed the whole Act is a nonsense. It is a survival of employer-employee relations in the last century. In substance, what the Act does, or did, was partly to deal with apprentices. Apprentices could be ordered back to work, and the control over apprentices provided that in a dispute between an employer and employee, if for example half a dozen unofficial strikers went on strike they could be taken to the local police court and ordered to pay up to £10 every day the strike continued, or if you wanted it to be £50 a day you could go to the county court.
I have not traced any case, certainly in the last 65 years, in which the Act has ever been used. The noble and learned Lord, Lord Donovan, with all his experience as Chairman of the Royal Commission, said that he knew of no case, I think in living memory, in which the Act had ever been used. Here is what is supposed to be a very bright and comprehensive piece of legislation on industrial relations, and quite rightly it repeals the Trade Union Act 1871, the Trade Disputes Act 1966, and the Trade Disputes Act 1965. What is the point of keeping this Act on the Statute Book? Your Lordships may remember the noble and learned Lord, Lord Donovan, saying that he knew of only one possible useful purpose in keeping it on the Statute Book: that was, that in legal circles it was regarded as a well known trap question for Bar candidates. This rather melancholy

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legislative history is set out in the chronological table as follows: Section 2 repealed by the Statute Law Repeal Act (No. 2), 1893; Section 6 repealed in part by the Family Law Reform Act, 1869; Section 8 repealed in part by the Statute Law Repeal Act (No. 2), 1893 and amended by the Justices of the Peace Act, 1949; Section 9 repealed in part by the Statute Law Repeal Act (No. 2) 1893 and amended by the Justices of the Peace Act, 1949 and the Administration of Justice Act, 1956; Section 10 repealed in part by the Statute Law Repeal Act, 1893; Section 11 amended by the Factory and Workshop Act, 1.878; Section 13 repealed in part by the Merchant Seamen Act, 1880; and Section 15 repealed in part by the Statute Law Repeal Act, 1893. There is very little left of the thing now. There is Section 1 left. Section 1 says:
"This Act may be cited as the Employers and Workmen Act 1875."
What are we doing with this nonsense? Why could we not get rid of the whole thing? Certainly it is not necessary. The Amendment says that any power conferred on the Court by the Act shall cease to be exercisable. It goes on in the repeal Schedule to repeal in the Act the only provisions conferring such powers. If we are to do away with it anyhow why do we suddenly say so? I hope the noble Lord will withdraw the Amendment so that we can consider when we deal with the repeal Schedule what the noble and learned Lord, Lord Donovan, and I have suggested.
9.49 p.m.
LORD DRUMALBYN: My Lords, whatever we do we certainly would not withdraw this Amendment because to do so would conflict with the whole tenor of the Act. As I said at an earlier stage, the only things we could repeal in this Bill are matters relating to this Bill. I am advised that it is not considered generally proper in legislation to repeal things not related to that legislation. There is a provision which still relates to the Truck Acts for example and the Truck Acts, I am advised, still operate. That provision is still in this Bill and I am advised it would be not right to repeal the whole Act in this Bill. Between now and Thursday, when we expect to come to the noble Lord's Amendment on Schedule 9 and to
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our own, we shall certainly have a look at this to see to what extent the noble Lord and ourselves are in agreement, but I invite the House to approve this, which most certainly is right in the circumstances.
Clause 129 [Collective agreements]:
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 90G:
Page 96, line 5, at beginning insert (" Subject to the next following subsection ")
The noble Lord said: My Lords, this is a paving Amendment for Amendment No. 91E. The effect of 91E is to remove from Clause 129 an unintended restriction, because as drafted it precludes the Court of Appeal from hearing cases on appeal from the National Industrial Relations Court and the House of Lords from hearing such cases on further appeal should one somehow reach it. My Lords, this was not intended, of course. These appeals will be on points of law; and I would invite noble Lords to approve these two Amendments.
LORD DIAMOND: My Lords, before the noble Lord sits down, may I ask him whether he was going to invite us to consider these two at the same time?
LORD DRUMALBYN: My Lords, I was inviting noble Lords to consider Amendments Nos. 90G and 91E together. I said that 90G was a paving Amendment, and then I explained 91E. I beg to move No. 90G.
9.53 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 91A:
Page 96, line 5, at beginning insert—
(" No action for damages for breach of a collective agreement shall be entertained in any court, and ").
The noble Lord said: My Lords, I beg to move this Amendment, which is simply designed to introduce some clarity into a clause which at the moment, I think, is extremely obscure. It is a matter of some importance. Clause 34, as your Lordships know, makes collective agreements enforceable in some circumstances. Clause 36 deals with the question of a breach of a collective agreement. When one reads those two clauses

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it is awfully difficult to determine from them whether any action lies in the ordinary courts to claim damages for breach of a collective agreement. Certainly you can in the Industrial Court claim compensation upon the basis of an unfair industrial practice if you break a collective agreement. That is provided for in Clause 36. But I studied the Bill very closely to try to discover anywhere in the Bill some language which clearly states what I believe is the Government's intention, that no claim for damages for breach of a collective agreement can he brought in any court.
What I seek to do by the Amendment which I am now moving is to state that specifically and clearly. What I would venture to put into the beginning of Clause 129 are words which I think are perfectly clear and easy to understand:
"No action for damages for breach of a collective agreement shall be entertained in any court…"
I think I am right in saying that that is the Government's intention. We were told that when we discussed this point on Committee. I think it might be stated in terms so as to remove any doubt. I agree that if you analyse Clause 129 as it stands, and take it to pieces with great labour and try to collect its constituent elements you might draw the inference from the words, "or claim damages" that that is what is intended. It is a great pity to draft clauses in such an extremely obscure form as to put a person of moderate intelligence, such as myself, to great pains to try to discover from the terms of the clause "Aye" or "Nay" whether you can go to Queen's Bench Division and claim damages for breach of a collective agreement. I have tried to make that plainer, and I hope I shall not be told that my words produce precisely the opposite effect. I am tired of being told that and I do not think it would be true in this case. I hope that the Minister will agree either to accept that language or to undertake to put in some language to produce the result which the Government intend. Your Lordships will see that Amendment 91B is simply part of Amendment 91A which I have just moved. It seeks to leave out the words "claim damages" and to insert the words "to obtain an award of compensation". That is necessary to complete the Amendment, and I hope that the
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Government will accept both those Amendments. I beg to move the first one.
EARL BALFOUR: My Lords, may I ask one question here? Clause 129 surely is to determine that no court other than the Industrial Court shall entertain any proceedings brought under Clause 36 of this Bill, which starts off by saying—
"It shall be an unfair industrial practice for any party to a collective agreement",
and I presume it was to make it quite clear that any breach of a collective agreement could only be settled in the Industrial Court. I am asking this as a question.
LORD DRUMALBYN: My Lords, so far as the Bill is concerned I think my noble friend is correct and the answer to his question is "Yes". Dealing with the Amendments of the noble Lord, Nos. 91A and 91B, we are wholly in sympathy with what we understand is the purpose of those two Amendments. They pare designed to strengthen the drafting of Clause 129 so that, together with the Bill's other provisions in respect of proceedings in contract, the clause will more effectively express our intentions. We are grateful to the noble Lord for putting them down, and it is with considerable reluctance that I have to say that we do not think that they have yet got it quite right—any more than we did in the Bill as printed.
My Lords, the difficulty about these Amendments is that they assume that there are no other ways of enforcing a collective agreement than those specified in this clause. Thus, their wording would replace the uncertainty it removes by another of the same kind. It would leave the way open for actions in existing courts to enforce agreements in these other ways—for example, actions in existing courts for an injunction as an alternative to, or duplicating, one in the Industrial Court for an order under Clause 101(3)(c). This is a defect which also characterises our own wording as the Bill is now drawn. However, when we come to consider a later Amendment the new clause after Clause 136, No. 91H, is closely linked both with Amendment No. 90G which we have just debated, and Amendment No. 91B, and

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also to this clause. I hope to show that the wording of Amendment 91H removes this weakness. In the light of these considerations, I hope that the noble Lord will agree to withdraw his Amendments.
LORD STOW HILL: My Lords, I am grateful to the noble Lord. I have studied very closely the new clause in Amendment 91H and my only comment is that that again does not contain any language which says precisely that you cannot ask for damages in the High Court of Justice, Queen's Bench Division for breach of collective agreement or ask for any other relief such as an injunction or account or declaration in the High Court. Therefore, it seems to me that Amendment No. 91 was subject to the same criticism I ventured to make in regard to Clause 129. Perhaps I am wrong. We shall consider it more fully when we come to that new clause. I am grateful to the noble Lord for what he said about the wording I suggested. I accept the criticism that it deals only with damages and not with injunctions, accounts or declarations. But I should have thought that that could have been put right by including a reference to the other forms of relief in the words I suggested. I agree that it is difficult to get it right. I hope he will give it further consideration and I couple with that remark the observation that I do not think that Amendment 91H quite deals with the point. Having said that I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD DRUMALBYN: My Lords, Amendment No. 91E is consequential. I beg to move.
Amendment moved—
Page 96, line 12, at end insert—
("( ) The preceding subsection does not apply to any proceedings on or in consequence of an appeal from a decision or order of the Industrial Court.").—(Lord Drumalbyn.)
LORD STOW HILL LORD STOW HILL had given Notice of his intention to move Amendment No. 91C.
Page 97, line 23, leave out subsection (4).
The noble Lord said: My Lords, this Amendment relates to a point which I ventured to put at the Committee stage. Since then I have received a letter from the noble and learned Lord the Lord Chancellor. I am most indebted to him for writing me. The letter wholly satisfies me. In those circumstances, I shall not seek to move this Amendment.
LORD HUGHES LORD HUGHES had given Notice of his intention to move Amendment No. 91F:
Page 97, line 27, after ("association") insert ("joint industry board").
The noble Lord said: My Lords, this Amendment would have been consequential on another Amendment which the Government did not accept. I therefore do not move this Amendment.
10.4 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 91G:
Leave out Clause 133.
The noble Lord said: My Lords, this is a purely paving Amendment to make way for the introduction of the new clause to follow Clause 136. It may be convenient to speak to the new clause at the same time. The purpose of the new clause is to express more precisely the Clause 133 restriction of the jurisdictions of the Industrial Court so as to make clear that besides being debarred from entertaining proceedings in tort (which Clause 133 already achieves) it is also precluded from entertaining any proceedings in contract other than those arising on jurisdictions expressly conferred on it under Part VI of the Bill. The need to do this was pointed out in Committee by the noble Lord, Lord Tangley, and the noble and learned Lord, Lord Wilberforce. I should like to say how grateful we are to them for having brought these matters to our attention. The purpose of the two Amendments is to establish more effectively and clearly the demarcation between certain jurisdictions of the existing courts and those which Part VI of the Bill confers on the Industrial Court.
We should have preferred to avoid two bites of the cherry and simply to introduce an Amendment to Clause 133. Unfortunately, the structure of the Bill prevented us from doing so, because as your Lordships will have noticed, Clause 133 fits snugly into a little trio of Clauses, 130 to 133, under the cross-heading, "Proceedings in tort". That is the right place for the clause as it is now drafted. The revised version, however, covers proceedings in contract as well as those in tort. Accordingly, we now seek to remove it to a new place in the Bill, where it can precede Clause 137, under the cross-heading "Supplementary".
The new clause first of all reproduces unchanged the provisions of the clause which the present Amendment seeks to delete. Secondly, it introduces in paragraph (b) a new provision in respect of proceedings in contract. These, when read in conjunction with Clause 129, as now amended, allocate between the existing courts and the Industrial Court jurisdictions in respect of proceedings in contract more specifically and with
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greater clarity. In oilier words, paragraph (b) sets beyond doubt that the Industrial Court has no general or implied jurisdiction in contract. Its only jurisdiction in contract is in respect of matters based on Part VI of the Bill. The Amendment covers complaints and appeals for which Part VI as printed already provides. It also covers "applications", a new provision introduced in Part VI by Amendment 85E, which the House has already accepted. The words "in consequence of" are needed to cover the possibility of proceedings for contempt of court in cases of non-compliance with an order of the Industrial Court made in remedy of a complaint.
In Committee the noble and learned Lord, Lord Wilberforce, asked about actions for damages being brought before the Industrial Court. This is a rattier obscure point. The remedies which the Court may award in respect of complaints for breach of collective agreement include compensation, but not damages. The circumstances in which the Court may award damages arise under Clause 113(1)(e) on the hearing of appeals from industrial tribunals on actions under Clause 112 in respect of damages for breach of an individual contract of employment. So it is appropriate to use the word "damages" in Clause 129, both because that is a remedy available in proceedings in contract before the existing courts and because, when Clause 112 is in force, it will also be available in the circumstances I have described from the Industrial Court. I beg to move.
LORD STOW HILL: My Lords, the last reference to damages illustrates the complications of this Bill. I understand that it refers to damages which can be granted under Clauses 112 and 113 and is coupled with damages at law in large for breach of a collective agreement. Though I do not question the accuracy of the conception, I point to the complexity. I myself have no complaint about, and, on the contrary, would approve, the removal to a separate new clause of the cluster of provisions to which the noble Lord referred. The cluster refers to a particular aspect of tort which I should have thought could well stand by itself. But I think that this is a convenient arrangement, and I hope that the House will accept it.

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I have already made in advance the comment that I think ought to be made about it: that this new clause does not contain the language which it seems to me ought to be found somewhere in the Bill; namely, language with which I sought to incorporate in my Amendment No. 91A, which would say clearly and beyond peradventure that you cannot go to the Queen's Bench Division and ask for damages for a breach of, or an injunction to restrain a breach of, or an account of profits, or a declaration in respect of, a collective agreement. Though we shall he passing this new clause, that language still does not appear in the Bill. The noble Lord, Lord Drumalbyn, has recognised the difficulty, and he has agreed that this is a difficult matter of drafting. I hope that between now and the Third Reading of the Bill he will find means to introduce that language somewhere in the Bill so as to eliminate any doubt as to whether the ordinary common law remedy in damages for breach of collective agreement under Clause 36, or any other clause, exists. It is the plain intention of the Government that it should no longer exist, and I hope that this will be stated plainly, and not by implication, as it is at present—if it is stated at all—in the language of what will now be subsection (1) of Clause 129.
LORD DRUMALBYN: My Lords, I will take note of what the noble Lord has said and pass it on to those more competent than I am to judge of these matters. Perhaps I may write to the noble Lord between now and the next stage of the Bill.
10.13 p.m.
LORD BEAUMONT OF WHITLEY LORD BEAUMONT OF WHITLEY moved Amendment No. 91:
After Clause 134, insert the following new clause
Increase of penalties for breach of contract involving injury to person or property
(".Section 5 of the Conspiracy and Protection of Property Act 1874 shall be amended by the substitution of '£200' for 'twenty pounds'.")
The noble Lord said: When this subject was discussed in Committee, the
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Government said that they wished to keep Section 5 of the Conspiracy and Protection of Property Act 1874. I think there was considerable agreements in all parts of the Committee that this was the right thing to do. One of the points made was that it was important that it should go on the Record, and be seen, that breaches of contract which might involve injury to persons and property—though here I emphasise "persons"—should be seen to be legal and to carry penalties. It was stated that the penalties as they were in the Act were inadequate, but the point was put that the mere fact that they were illegal was important. I believe that we should bring our laws up to date. If we have on the Statute Book laws which we do not like, we should do away with them; but if they serve a purpose any penalties laid down should be consonant with normal standards of today. A sum of £20 is not an adequate penalty for a breach of contract involving injury to persons. There is a case for saying that this Act should not be on the Statute Book at all; but if it is to remain, there is no case for saying that the penalty should be £20. I have merely put forward £200 as a possible increase, though, as noble Lords on the Labour Front Bench have 'pointed out at one time or another tonight, possibly by the standards of present inflation it should already be going up.
I think that it probably does a disservice to the psychological effect of having a law on the Statute Book, and having a law which people care about, if the penalties are seen to be totally derisory in terms on modern money values. This is the reason why my noble friends and I have put down this Amendment. I am informed by the Government that this is an inappropriate place for it because if we carried the Amendment it would put all the other penalties in the same Act totally out of line, and it is not appropriate for us to try to alter all the other penalties in this Act. I accept what they say and therefore shall not press this Amendment. I will merely move it, in order to invite the Government to agree with the general principle that, if there comes an appropriate time, it is right that penalties should be brought into line with modern monetary values in Acts which the Government are

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specifically keeping on the Statute Book and repeating in modern Acts. I beg to move.
EARL FERRERS: My Lords, while we recognise the desire of noble Lords that the penalties of this section of the Act should reflect more adequately present-day conditions, we doubt whether this is appropriate to the Bill now before your Lordships. I would say at the outset that there is a misprint in the noble Lord's Amendment: it refers to the Conspiracy and Protection of Property Act 1874, whereas it should be 1875. But the Government have frequently made it plain that criminal provisions should not be brought into the industrial relations field other than where there is a risk of violence or injury.
In addition to our natural reluctance, which I believe is shared by many noble Lords, to delve into the justification or otherwise of criminal penalties, there are considerable practical difficulties raised by the proposed Amendment. The noble Lord, Lord Beaumont of Whitley, said he understood that one of the objections to our acceptance of this Amendment would be the need to alter other parts of the Act, which, strictly, do not come under the Industrial Relations Bill. That is perfectly true, because Section 7 would also have to be revised. But the real problem is that the 1875 Act is not restricted in its application to industrial relations matters: it covers a far wider field. For example, Section 5 applies to any person who
"wilfully and maliciously breaks a contract of service or hire, knowing or having reasonable cause to know that the probable consequences of his action will be to endanger life."
Any wilful breach of contract to hire equipment to a hospital, for example, would be actionable under Section 5 in the circumstances set out in that section; and so could other commercial contracts for hiring. We do not believe that this Bill is the right place to make the Amendments to an Act such as the noble Lord has suggested. We accept, and are sympathetic to, his view that the figure of £20 is inadequate for the present day. Whether or not that will ever be altered in the future must remain for the future, but I do not believe that it would be right to alter it in this Bill.
LORD BEAUMONT OF WHITLEY: My Lords, at the end of a speech in which I thought that the noble Earl was entirely missing my point, he very courteously said that the Government were sympathetic to the idea that the penalties should be changed. In my opening speech I said that I entirely appreciated that this was an inappropriate place to make the Amendment—and although I got the year of the Act wrong, that no doubt could have been changed on Third Reading. However, having obtained from the noble Earl the statement that if the time ever comes when the 1875 Act is amended, the Government are sympathetic to the idea that the penalties on this particular point which they have specifically retained in this Act should be made more realistic, I am at least moderately happy. I therefore beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 91:
After Clause 136, insert the following new clause—
General restriction on jurisdiction of Industrial Court
(".The Industrial Court shall not have any jurisdiction except that which is expressly conferred on it by or under this Act; and accordingly that Court—

(a) shall not entertain any proceedings in tort, and

(b) shall not entertain any proceedings brought by a party to a collective agreement or any other contract for the purpose of enforcing the contract or obtaining any remedy in respect of it, other than proceedings on or in consequence of a complaint, application or appeal under Part VI of this Act.")

The noble Lord said: my Lords, I beg to move this Amendment, the effect of which I have already described.
10.21 p.m.
LORD STOW HILL LORD STOW HILL moved Amendment No. 92:
After Clause 136, insert the following new clause—
Protection of journalists from proceedings under this Act in respect of certain oral or written reports made in exercise of their profession.
(" —(l) For the avoidance of doubt it is hereby declared that no action or other proceedings shall be brought in any court include-

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ing the Industrial Court and any industrial tribunal by virtue of any of the provisions of this Act against any person, being a person engaged whole-time or part-time in the profession of journalism, in respect of any matter to which the next subsection applies published orally or in writing by that person in the exercise of his said profession in any newspaper, magazine or other periodical publication or in the course of any broadcast or television performance.
(2) This subsection applies to any such matter as is referred to in the preceding subsection which in so far as it consists of an allegation or allegations of fact constitutes a fair and substantially accurate account or report of the whole or some part of some happening or happenings (including a speech or other declaration delivered or made publicly whether orally or in writing) which are of public concern, and in so far as it consists of comment on such happening or happenings or such part thereof as the case may be is a fair comment thereon, or is a fair comment on some subject of public concern, or is a fair comment both on such happening or happenings or such part thereof and on such subject.
(3) For the purposes of this section the proprietors of any such newspaper, magazine or other periodical as is referred to in subsection (1) of this section and any person who in the ordinary course of his employment took any part in the publication of any such matter in such newspaper, magazine or other periodical publication, and any person, including any public authority, who or which in the ordinary course of his employment or in the ordinary course of the discharge of its public duty, as the case may be, took part in the organisation or production of such television or broadcast performance, shall be deemed to be a person engaged in the profession of journalism.
(4) In any proceedings brought by virtue of any of the provisions of this Act against any person, being a person engaged whole-time or part-time in the profession of journalism within the meaning of this section, in respect of any matter published orally or in writing by that person, it shall be presumed, unless the contrary is shown, that such matter is matter to which subsection (2) of this section applies, and if and in so far as any such proeedings are based upon an allegation or allegations that any such person induced or threatened to induce another person to break a contract to which that other person was a party, the burden of proving such allegation or allegations shall he upon the plaintiff or complainant in those proceedings.
(5) In this section the word "induce" has the same meaning as it has in section 96 of this Act")
The noble Lord said: My Lords, I beg formally to move this Amendment. This is what perhaps I may describe as the second alternative journalists' Amendment, designed to give protection to journalists. We have already discussed this topic on four separate occasions
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during the course of our debate, and I do not think I should be usefully taking up the time of the House if I again asked your Lordships to examine this new attempt exhaustively. This Amendment would protect only the professional journalist. When we met last week my noble and learned friend Lord Gardiner moved an Amendment to Clause 90 which was a little more extended in scope, but the Government intimated that they were not in a position to accept it. I will say no more about the new clause at present before your Lordships than this. Although it is substantially on the same lines as the new clause which I proposed when we were at the Committee stage of our debates, it has been recast. The noble and learned Lord the Lord Chancellor criticised the drafting of the earlier clause, and made various observations with regard to it. I did not myself, as I indicated at the time, think that any of those criticisms had any substance at all, but in drafting the clause in its present form I have sought to take account of them so far as possible.
The reason why I think it would not be useful to take your Lordships' time going into the substance of this clause is that the Government and those who promote this clause are in disagreement on the basic question whether the journalist is at any risk at all. Ministers have stated that it is their clear opinion that there is no such risk. If they are right in that view, then I and those associated with me accept that logically there can be no possible need for a new clause on the lines of that which your Lordships now have before you. Unless we can persuade the Ministers of the Government that there is a risk, as I have said, there is no point in examining the clause. We have not been able to persuade them of that, and it is for that reason that I do not invite your Lordships to consider its contents in any more detail.
I think, however, the matter ought not to be left quite there. I think it would be right that I and those associated with me in putting these proposals before the House should make it perfectly clear what our own view is on the question of risk. Ministers think there is no risk. It would be wrong, and indeed irresponsible, if I (or those associated with me

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in preparing this new clause) let it be thought that in our opinion there was a grave risk. We have never said that, and we do not think it. All the same, I find it difficult to persuade myself that there is not a slight risk; indeed, I think there is a slight risk. I gave examples, and my noble and learned friend Lord Gardiner, when he was moving an Amendment to Clause 90, also referred to the question of risk. I think it is the view of all of us who have identified ourselves with this Amendment, while there is certainly no grave risk—that we do not suggest, and never have done—for reasons which we have previously given, and which we do not now repeat, we feel that there is a slight risk, and that it cannot be completely disregarded.
What we think is a matter of some slightly greater importance is this—and this is a point which has been made by us in the course of these debates. It would be unfortunate if the journalistic profession felt any anxiety about publications which might be construed as knowingly inducing workers to strike, and if, over the years, a hesitation crept into editorial offices about publishing honest opinions in favour of workers who were either striking or minded to strike. We think that is of somewhat more importance that the slight risk that on occasions, at rare intervals, a journalist might find himself in some trouble before the courts.
We have often said from this side of the House that, in any event, we think the proceedings which are outlined in the various clauses of this Bill are unlikely to result in actual complaints before a court, and we certainly think that is the case with regard to any risks that may face journalists. I have had an opportunity of discussing this with those associated with me, and particularly with my noble and learned friend Lord Gardiner, and he has authorised me to say that he concurs in the view that I have expressed. He is present in the Chamber and I say this in his presence.
May I say that we think there is a tendency, which has been creeping in over the years, for journalists to be nervous about editorials which might be construed as having the effect of inducing workers to strike. We think the risk is slight; we certainly do not suggest that there is any grave danger to the liberty
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of the Press, and we leave it there. Of course, in those circumstances it can be said that all legislation of any substance carries with it the risk of untoward consequences which are not expected, and that the slight risk which we think is present should be encountered. If we were dealing with any topic other than the freedom of the speech and the independence of the Press, that is a point of view which, speaking for myself, I would readily accept: one always has to take some risk. But in this country we are sensitive, and rightly sensitive, to anything which could conceivably be regarded as an encroachment upon the legitimate province of criticism and comment and free speech. That is absolutely sacred to us, and for that reason we feel that it is not justifiable in this context to accept the slight risk which in other contexts could be justifiably accepted.
That is the general position that I would like to make clear before parting with this new clause. That is the position as we envisage it. I think it is useless to continue the discussion because the Government have clearly made up their minds that there is no appreciable risk, and obviously at this late stage of the Bill they will not change their minds on that. Therefore it is obviously useless to discuss possible remedies to deal with such a position. I am sure the Government Front Bench and the whole House will agree with me on that. I thought it right to explain our position. As I have said, it would be wrong and irresponsible to leave our own attitude of mind in doubt about this, or to exaggerate or magnify the gravity of any peril which we think does not exist. With that, I formally move the Amendment, and would ask the view of the House, although speaking for myself I would not seek to take your Lordships into the Division Lobby upon it.
10.30 p.m.
LORD RITCHIE-CALDER: My Lords, in this dialogue of the deaf which we are having in this debate may I go on record, since we are obviously not going to make any real impression, to point out that, as someone who has been 40 years in journalism and walked the tightrope of libel and D-Notices and the rest, I know what this kind of inhibition really means. I believe this is in fact very definitely and unquestionably an

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inhibition on the freedom of the Press, not because, as my noble friend has pointed out, we think that perhaps even under this Government this measure would be used in any punitive sense, but we do know (I know, anyway) what is in fact the meaning of this kind of thing. It in fact inhibits an editor, or whoever may decide these things, not to publish a cartoon which might be so construed, or a television producer to accept that microphone which is pushed in front of Jack Dash in the docks. That sort of thing will be cut, because whatever he may do may be interpreted as condoning or encouraging somebody who is inspiring unrest in the trade unions.
I have had a great deal of experience of this, and I can think back over a great many years in which many of the things which I was capable of doing and allowed to do, and I think in the nature of social history was important to do, would not have appeared in the British Press under a suggestion of this kind of constraint. Therefore, it is not a question of whether a Government would invoke, or a tribunal would invoke, or an employer would invoke the terms of this Bill. But I know that I have lived my life with "they". It is this unknown "they", it is "they" who do not want this, "they" who do not want that, "they" who do not allow us to do so and so. I say unequivocally this will be a restraint; and it is not a restraint on people who are deliberately contriving or devising industrial unrest but an inhibition on the freedom of the Press.
BARONESS WHITE: My Lords, I should say that I am no longer a member of the National Union of Journalists, but I once was, and before I had the honour of becoming the second woman Lobby correspondent—my noble friend Lady Lee was the first—I was an industrial correspondent, and therefore have some experience, though nothing approaching the record of the noble Lord, Lord Ritchie-Calder, of working in a newspaper office on industrial topics, including the reporting of strikes. I entirely agree with what my noble friends have said, that the real danger which we apprehend is not that there will be a lot of journalists dragged before the courts—we do not think that will happen; one may have occasional cases, but
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not very often—but that what will happen, in our submission, is that, unless one has a very clear understanding about this situation, one may have in newspaper offices the sort of situation which we all know, when you get the copy back on your desk marked "check for libel". This is very common in any newspaper office. The office nearly always keeps a tame lawyer somewhere around who makes an honest guinea—it is no longer guineas, but decimal currency—by advising on libel, and he nearly always errs on the side of caution.
If this kind of attitude were to be brought into industrial reporting, it would be very inhibiting for the journalists themselves and would be against the public interest, particularly when you are dealing with strikes or the lead-up to a strike. Anyone who has done even a small amount of this sort of reporting knows that almost always in a strike situation the ostensible reason for the strike is not the real one. I was taught this lesson by the man I have always regarded as the best industrial correspondent in my lifetime, Trevor Evans of the Express. If anybody really knew what was going on in a strike situation, it was Trevor Evans. It was he who helped me to see "below the surface" reasons.
If you make it difficult for a journalist to face his editor when he hands in his copy, because he may be told, "Look, we really dare not say this. You may be absolutely right, it may be the complete truth, but we dare not say this because it may be taken that we shall be in some way inducing industrial strife", that would be very bad for the journalist professionally, and also damaging to the public interest.
I do not wish to say more. I do know that this Bill has caused anxiety to the National Union of Journalists, and I think it has been absolutely right that my noble friend should have ventilated the matter so that we can at least indicate our fears, and so that the Government can give us assurances that, in their view, there is no such danger. I hope that that assurance will at least get to the newspaper offices in the country, and particularly the local newspapers. A big national newspaper can usually take a line, if it wants to; but with the local newspaper—which is so often where we

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have the real local interest in a strike—I think you may be in very serious danger. A much smaller newspaper, without the necessary resources if anything did go wrong, would have to face possible court action and would err very much on the side of caution. In addition, very often the journalist on the staff of such a paper is much less sure of himself than someone who has a national reputation. For all these reasons, I think we have been entirely justified in ventilating a matter which has caused very considerable concern in the profession.
10.38 p.m.
LORD DRUMALBYN: My Lord, I think we have had a useful debate on this matter, but I should like to say at once that the fears—even though the noble Lord, Lord Stow Hill, made it clear that his fear was simply in regard to a slight risk—that have been echoed tonight in the House have not been widely spread, so far as I have been able to see, in the Press as a whole. I think the reason is that, quite simply, the fears are not strongly held. It would be very sad if they were. The fact is that the Bill does not give any reason for the fears to be held, as the noble and learned Lord, Lord Donovan, himself clearly discerned in his Second Reading speech, when he pointed out that, should a correspondent advise workers to come out on strike, he would still not be liable under the Bill because it could not be shown that the workers were being advised to strike in breach of their contracts of employment. The reason for that is that it is open to the workers concerned to give due notice, and thus to take strike action which would not be in breach of their contracts.
As my noble and learned friend the Lord Chancellor said, fair reporting and fair comment could not, as such, give rise to proceedings under the Bill. If one takes that in conjunction with the explanation given by the noble and learned Lord, Lord Donovan, one can see that there is really no risk at all. This was the point that my noble and learned friend made, and to seek to insert something into a Bill which is not a
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matter of doubt can give rise to unfortunate side effects. If we were to single out journalists in the way that the noble Lord has done in his very carefully worded Amendment, the corollary of that would be to create some doubt that reports and comments made other than in the profession of journalism would give rise to some special liability under the Bill, perhaps in respect of inducement as an unfair industrial practice. Such a course would be wholly misleading and, since there is no need for special protection for journalists, the Amendment, if accepted, could have an effect which is contrary to its intention.
It is for these reasons, and for these reasons alone, that we reject the Amendment. If it really were necessary to give the Press this protection in order to enable them to do their jobs with full freedom, then of course we should be the first to concede it. But after the most careful examination we have decided that this is not necessary. I think the noble Lord, Lord Stow Hill, will accept that the difference between us is very small, since he has made it quite clear that he thinks there is only a slight risk. In view of the possible side effects of legislating in this way; in view of the fact that we believe that the Press has a pretty shrewd instinct in this matter for what is fair reporting and fair comment; and in view of the very high standards that the Press of this country maintain and their desire to avoid doing anything which they ought not to do in these respects—and one must admit that it would be wrong for the Press to induce people to break their contracts when to do so is against the law, or indeed to induce them to commit an unfair industrial practice—there is only a narrow margin between us here. In those circumstances, all I can do is to express our admiration and satisfaction for the way in which a matter of the very greatest importance has been ventilated in this House with great moderation, and to say, respectfully, that if there is a difference of opinion it is a very slight difference, and we do not believe that the need for this clause exists.
On Question, Amendment negatived.

LAND REGISTRATION AND LAND CHARGES BILL [H.L.]
MERCHANT SHIPPING (OIL POLLUTION) BILL [H.L.]
RECOGNITION OF DIVORCES AND LEGAL SEPARATIONS BILL [H.L.]
Returned from the Commons, agreed to, with Amendments: the said Amendments to be printed.