§ 2.59 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 138 [Application to Industrial Court with a view to discontinuing or deferring industrial action]:
LORD CHAMPION moved Amendment No. 92A:
Page 99, line 37, after (" may ") insert (" in pursuance of a resolution of each House of Parliament ").
The noble Lord said: My Lords, at the commencement of our proceedings in Committee on the emergency procedures of the Bill, I said that I agreed that it is desirable as far as possible to prevent any sort of industrial action that, in the words of Clause 138, is likely,
(a) to be gravely injurious to the national economy, to imperil national security or to create a serious risk of public disorder, or
(b) to endanger the lives of a substantial number of persons, or to expose a substantial number of persons to serious risk of disease or personal injury.
That being the area of agreement, the question arises as to whether these clauses will achieve that purpose and whether in their operation they will be fair to the worker involved in the industrial action contemplated or actually begun. We are of the opinion that this and subsequent clauses in this Part of the Bill will not achieve these purposes; and we have voted against the clause in Committee.
Our objection to this clause is not mainly that we have doubts about its practicability. We object strongly to so much power being put into the hands of the Secretary of State and then into the hands of the Industrial Court. This power is of the sort that, under the Emergency Powers Acts 1920 and 1964, resides in the Sovereign and is controlled by Parliament. The operative words of the Act of 1920, as slightly amended by the Act of 1964, are:
If at any time it appears to His Majesty there have occurred, or are about to occur, events of such a nature as to be calculated, by interfering with the supply and distribution of food, water, fuel, or light, or with the means of locomotion, to deprive the community, or any substantial portion of the community, of the essentials of life, His Majesty may, by proclamation,…declare that a state of emergency exists.
No such proclamation shall be in force for more than one month, without prejudice to the issue of another proclamation at or before the end of that period.
§ The Act of 1920 and that of 1964, also make provision for the fact of such a proclamation being forthwith communicated to Parliament, and if Parliament is not sitting to recall it within five days. There is throughout the principal Act a proper and very meticulous regard for Parliamentary control. For example, in addition to providing for Parliament's recall where necessary, any regulations made by the Government had to be laid before Parliament as soon as may be and could not remain in force after the expiration of seven days unless a Resolution was passed by both Houses of Parliament. Incidentally, a proviso said that there could not be made under the 353 Act any regulations making it an offence for any persons to take part in a strike or peacefully to persuade any other person to take part in a strike.
§ Contrast those powers, my Lords, which have been very rarely used, with those in the Bill. Under this Bill the Secretary of State may, without reference to anyone else or even having to communicate the fact to Parliament, apply to the Industrial Court for an order. The Industrial Court, a free and independent Court, not answerable to anyone, and certainly not to Parliament, may issue an order prohibiting a person or persons from"calling, organising, procuring or financing"a strike or threatening to do so or from organising, procuring or financing"any irregular industrial action short of a strike"or from threatening to do so. Those are pretty considerable powers for a court to exercise, and althought it does not seem certain that the order may prohibit a person taking part in a strike, it will prohibit a person peacefully persuading another to take part in a strike.
§ This is well beyond the powers in the Emergency Powers Acts in relation to that part of it. The period of the order may be up to 60 days and the provisions of subsection (6), together with those of subsection (4), seem to me to amount to a prohibition to strike; for if one cannot be"called, organised, procured or financed ", it is absolutely tantamount to a prohibition—not upon the individual as a striker but upon any body of workers doing so in an organised fashion. All this—and it is an important"all this "—without the court being in any way answerable to Parliament, and also without the Secretary of State being answerable to Parliament excepting in so far as every Minister is answerable to Parliament through the ordinary procedures and processes of Parliamentary Question and Parliamentary debate. In the event of his making an application to the Court for an order at the beginning of the Long Recess, it may be that some 80 days will have passed before Parliament has the opportunity to express its opinion in any way. That is 20 days longer than the Court is empowered to permit its order to run. We say that this is just not good enough; that it is by-passing Parliament in a wholly unjustifiable manner in a matter which, according to the Bill, is 354 one which might imperil national security or create a risk of public disorder.
§ The sense of the Amendment is clear. The Secretary of State should be empowered to act under this clause only if he has obtained the assent of Parliament. I make no pretence that the Amendment is word perfect. Nor does it make provision for the recall of Parliament as, clearly on a consequential Amendment, it ought to do. But it seeks to give to Parliament its rightful place in a matter adjudged to be vital to the life of the nation. If the situation is as grave as the Secretary of State will have to represent it to be when applying to the Court for an order, the fact ought to be hammered home by a decision of Parliament and by its recall if it happens to be in Recess at the time.
I must say that I was shocked when I heard the noble Lord, Lord Drumalbyn, say in Committee:
On the point of responsibility to Parliament, the Secretary of State is always responsible to Parliament for his conduct of industrial relations. In the normal way he does not have to go to Parliament to be authorised to take the steps that he takes in the course of industrial relations. He reports what he is doing; he does not need any kind of formal authorisation. It is only in regard to the Emergency Powers Act that confirmation is required. So that in this case he will be in exactly the same position as in any other case in relation to the conduct of industrial relations."—[OFFICIAL REPORT, 9/7/71; col. 219.]
That may be so, so far as the normal duties of the Secretary of State in relation to industrial disputes are concerned; but the procedure under these emergency clauses is not a case of the sort of thing that the Secretary of State is normally expected to do when dealing with industrial disputes. In the normal way, in the case of a serious industrial dispute, if his conciliation fails he sets up a court of inquiry and appeals to the unions involved to call off the strike pending the report of the court of inquiry. This has happened in many cases recently. We know what happens. He then reports that fact to Parliament.
§ Under these clauses the Secretary of State is embarking upon a procedure which may well result in a formal order by a body answerable to no one, involving what is virtually a prohibition of a strike for 60 days, an order which will place 355 a large number of citizens at risk of considerable penalties if they step slightly out of line, which might well involve a trade union or organisation of workers in considerable financial penalties for contempt of court if mandatory restraint orders are disobeyed.
§ One of the leading lights of the Conservative Party has said of the Conservative Party approach to change that they admit that the times involve us in one radical change after another, but they consider it proved by experience that such change can be safely effected only within the framework of a constitution sanctified by traditional authority and institutions. That must be the effect in a manner conformable to proper methods of procedure, and it can best be effected by a group of men known to be devoted to the traditions of their country in an atmosphere where people are confident of the ability of the constitutional procedure to achieve reform and the willingness of all classes to accept it when fairly enacted.
§ I can imagine that most noble Lords opposite would completely accept that as a statement by someone whom I regard as an authority on the Conservative approach to change. I myself accept that as a precept for change in a society that accepts the rules and restraints of parliamentary democracy. What I would say of the proposals in this clause and some of the subsequent clauses is that they do not conform to traditional methods of procedure. A traditional and accepted procedure in an emergency situation is that parliamentary control, as in the case of the Emergency Powers Act 1920, is exercised by Parliament. Neither are these proposals such that all classes will accept them as fairly enacted, for most classes, or certain parts of classes, in this country object strongly to this Bill and would not regard these proposals as being fairly enacted by Parliament at this time under Conservative control.
§ The danger here is that the law will be brought into contempt by orders of the court being understandably disobeyed in the sort of circumstances in which Parliament is by-passed by the Secretary of State and by the Court. The law is brought into contempt, as it was in the case of the Kent miners during the war years, when it is flagrantly disobeyed and the outcome is a matter for laughter 356 rather than anything else. That is the last thing I wish to see. I do not like to see the law flagrantly disobeyed. If the law is disobeyed, sanctions ought to ensure that those who disobey it are punished; but we have seen so many cases recently when the law has been flagrantly disobeyed and nothing has happened, nothing has flowed from it. We saw it certainly in the case of the Kent miners, which brought about a situation which was laughable rather than anything else. That is not a good thing for this country; it is not a good thing for the law of a democratic society.
§ I would strongly advise the Government to accept my Amendment and to continue to deal with anything approaching emergencies in the way which is now traditional and generally accepted and within the province of close parliamentary control. What my Amendment does is clear. It would permit the Secretary of State to make his application to the Industrial Court, but only if he had obviously by resolution obtained the consent of both Houses of Parliament. Surely this is the sort of thing that ought to be done in the sort of emergency situation postulated in these clauses, and certainly in this clause which this Amendment is designed to change. I beg to move.
§ 3.17 p.m.
§ LORD BERNSTEIN
My Lords, I support the Amendment put forward so clearly by my noble friend Lord Champion. I think the implications of this clause are very important and raise issues which affect Parliament. When Clause 134 (now Clause 138) was discussed in Committee, apart from the noble Lord, Lord Drumalbyn, no voices were raised in support of or against it from the Government Benches. This surprised me very much because many noble Lords opposite have had great experience in another place, which I have not, and their opinions would have been valued on this very important issue; but not a voice was raised.
There are three major points in the clause we are discussing. My noble friend Lord Champion, and noble Lords who spoke against this clause in Committee all agree that part of subsection (2)(a), which covers a strike, which would imperil the national security and could be a matter for emergency measures. It is 357 also agreed that there must be a limit to the exercise of the freedom to strike when this involves human lives and human health, which also is covered in subsection (2)(b). I am concerned about the total implications of this clause. Any strike, except the most trifling, could be considered"gravely injurious to the national economy"for it could have some effect on imports and exports, to raise one and lower the other. A railway strike could cause public disorder somewhere. A strike of sewerage men could certainly cause public disorder.
Is it not for Parliament, the elected Legislature, to decide whether a strike is causing or could cause grave injury to the national economy or is creating public disorder, and whether the importance of one or both becomes a matter for emergency measures? My noble friend Lord Champion has quoted what the noble Lord, Lord Drumalbyn said on June 9. He said:the Secretary of State is always responsible to Parliament for his conduct of industrial relations."—[OFFICIAL REPORT, 9/6/71, col. 219.]I agree with that in general, but while the matter is being considered by the Industrial Court presided over by a judge, the Secretary of State will be able to avoid answering questions in another place. It seems evident that it would not be proper for Parliament to criticise the Court during those considerations or even after the judgment has been offered. The clause, it seems to me, enables the Secretary of State to free himself of immediate responsibility to Parliament by referring the matter to the Industrial Court.
Although the Industrial Court, according to the Bill, will generally comprise what are called"other members ", the President, an appointed judge, will eventually be responsible for advising on the legal aspects in each case which comes before them. What follows, I suggest, will be a legal definition of the words in the Bill. The clause gives the Court the right to make orders enforceable through"penalties of contempt of Court ", which could finally lead to imprisonment. Its decisions could not be debated in Parliament. My noble friend Lord Champion pointed out that the Government already have powers under the 358 Emergency Powers Act 1964, and that those powers could be used.
On June 9, as reported at column 219 of Hansard, the noble Lord, Lord Drumalbyn, said:The emergency Powers Act 1920 does not give power to order people to go back to work.That, I understood, was one of his reasons or excuses for the present emergency clause that we are discussing; but this clause does not give the power to order people to go back to work. If that was the reason for using the Emergency Powers Act, because it does not order people to go back to work, why this provision? Given the enormous scope of the emergency provisions, it becomes all the more important that this Government, or any other Government—because the present Government will not always be in power—should be immediately answerable to Parliament for the measures they propose to take, or have taken. Do the Government really need this clause to deal with the emergency they speak of? I do not think so, and I am supported by the Donovan Commission who said in their Report that they did not think that the Government's present powers needed to be increased.
My noble friend Lord Champion said that this clause takes the immediate decision out of the control of Parliament and puts it in the control of the courts. The noble Lord, Lord Drumalbyn, said he thought the public had more respect—I am not sure about the word"respect "—had more faith, and would more readily accept a decision of the courts than of a Minister. If that is true, there is something wrong with our legislation and a Bill should be passed to make Ministers more responsible than judges for dealing with industrial and human relations matters.
I agree that the Secretary of State is accountable to Parliament, but although Secretaries of State may have wisdom they are short of time. The noble Lord, Lord Drumalbyn, also said that the Secretary of State has to ask himself two questions. How cosy for him! Not only does he ask the questions, but he has the preconceived answers. Questions cannot be asked of him in Parliament because under this clause a decision made by the Industrial Court cannot be debated in Parliament.
359 Considering the relationship between the Industrial Court and Parliament the noble Lord, Lord Drumalbyn, referred to the Taft-Hartley legislation on which this clause is modelled. But the clause goes much further than the American legislation; though that may not matter, because I think we should forget what is being done in America. The process of law is different in respect of a Presidential Decree and our Parliamentary system, and they are not capable of comparison. I think that we should also forget the Bill another Government proposed in another place. Under other clauses it is provided that the Secretary of State must consult or he said he would consult other persons and bodies before taking action. Nowhere in this clause does it say anything about consulting the T.U.C. or the C.B.I. In answering a point which I raised during the Committee stage, the noble Lord, Lord Drumalbyn, said that the emergency procedure was included because there was little time for consultation. I still think that the T.U.C. and the C.B.I., with the help of the Minister's conciliation officers, could do more to speed up negotiations than could be achieved by calling into action the emergency powers under this clause and leaving the matter to the Industrial Court to settle. I think that this clause is wrong for the country and is wrong for our Parliamentary procedure. It ignores the judgment of the Donovan Commission on this method of dealing with disputes, as the Commission came out against the ideas embodied in this clause. For all these reasons I support the Amendment.
§ LORD POPPLEWELL
I wish to support what has been said by my noble friends, Lord Champion and Lord Bernstein. In my opinion this is a very important Amendment. If it is not carried one can visualise that it will be difficult for any undertaking connected with the public services or the economy of the country to declare a strike at all. We have often been told that this Bill when it becomes law will not prevent certain strikes from taking place. If we look at subsection (2)(b) it will be apparent that wide scope is given to the Industrial Court. Surely it is understandable that Parliament should be able to debate 360 anything which takes place in the country and which is likely to interfere with our economy or the public services. The Amendment would empower and compel the Secretary of State to come to Parliament so that the matter could be discussed before he gave consent to any recommendation of the Industrial Court. There are two ways in which this might take place: by Affirmative or by Negative Resolution. It is not possible to move Amendments to regulations; they have to be taken as a whole. There may be official strikes and the Secretary of State would be able to prevent an industrial dispute from taking place. Surely that cuts across the terms of the Bill, which is designed to promote good industrial relations. It means that any strike which takes place within the terms of this Clause will be unofficial. It is far too important a matter for the Secretary of State or any member of the Government to be able to authorise regulations and to have the last word. Parliament is supposed to be the overriding authority, and I do not think it is asking too much, if we believe in the need for free trade unions, to require that any regulation should first be debated in Parliament.
§ 3.25 p.m.
§ LORD STOW HILL
My Lords, may I at this stage put a question to the noble Lord, Lord Drumalbyn, which I am sure he will be able to answer, in view of his long and distinguished career as a Member of the other place. We are discussing how far the control of Parliament is removed from the activities of the Secretary of State under this clause; whether it is too far removed, and whether the clause as at present conceived is generally in the public interest. Ordinarily, if a Secretary of State, or any other Minister, takes a step to which Parliament strongly objects, a Question can be put down to him. He may be questioned about it at Question Time in the other place. If his answers are unsatisfactory, a Censure Motion may be put down on him, or on the Government as a whole. In accordance with the procedure in the other place, a Censure Motion on the Government is always allowed precedence over almost any other business. So ordinarily the Secretary of State is very much under the control 361 of Parliament. That is part of our constitutional practice and it is a principle of the utmost importance.
Should I be right in thinking that the effect of the arrangements as set out in these clauses is this? The Secretary of State, let it be supposed, decides to make an application. He forms the view that the conditions specified in Clause 138(2)(a) or (b) are satisfied; for example, that strike action is bound to take place and that it would be gravely injurious to the national economy. Let it be assumed that Parliament as a whole thinks that is an utterly unreasonable view, a most mischievous view, which will conduce to great damage to the public interest. Under the Standing Orders in the other House would not the position be—this is the question I wish to ask—that once he makes his application to the Court, Parliament cannot raise the matter, because Mr. Speaker would be bound to Rule out of order any question or any answer, or other Motion, on the ground that the matter was sub judice? Is that not right? As soon as he approaches the Court, the whole issue is utterly and completely removed from the jurisdiction of Parliament and cannot be considered in any way so long as it is before the Court. The Court has power to prolong the order up to 60 days, so I suppose any debate could not take place for a considerable period of time, if the way in which I understand Mr. Speaker would be obliged to apply the Standing Orders of another place is correct.
At the outset of the debate, we should know exactly where we stand. Not only that, but the Secretary of State is given power in Schedule 3 (page 111) to apply to the Court to make interim orders, so long as he gives notice and satisfies the conditions in the terms of these clauses. That order can be prolonged for 60 days and the whole proceedings from beginning to end cannot form the subject of any question, any discussion or any reference in another place or, I suppose, in this House. I am more familiar with the Standing Orders of another place than with those of your Lordships' House, though I am trying to make myself as familiar with them as possible. This is a question which the noble Lord, partly from his own experience, which is extensive, and partly from the advice which he may receive, will be able to answer. 362 It is a matter of considerable weight in making up our minds in this matter. I should be grateful if he would answer that question.
§ LORD DRUMALBYN
My Lords, perhaps it might be convenient if the House were now to allow my noble friend the Marquess of Lothian to make his Statement.