HL Deb 14 July 1971 vol 322 cc386-431

4.33 p.m.

Report stage resumed.


My Lords, after all this time, all I wanted to put was a fairly simple question. My noble friend Lord Stow Hill spoke about the emergency situation, and deplored the authority in the Bill for the Secretary of State to seek an order from the Industrial Court. The questions that were put related to whether, in the event of the Court's giving an order, it would be ultra vires for either House of Parliament to discuss the merit of the situation.

There is another side of this issue which worries me, and about which I should like to put a question, which is this. If an order is given against a trade union to desist from strike action, on the ground of emergency or the question of good health, and the union quite properly feels that the order is unreasonable and disobeys it, as I understand it the only court which could adjudicate on that question, if sanctions were applied against the union, would be the Industrial Court. The point I am raising is the unfairness of the Industrial Court in first of all making a decision and subsequently sitting in judgment against a union which disregards that decision.


My Lords, if the noble Lord is not going to answer that little point directly, I am now going to have mercy on the House, because of the long Statements we have had, and cut my speech down to about a quarter of what it otherwise would have been. I consider this Part of the Bill, with its eight vital clauses which we shall be dealing with, to represent the hinge of British democracy. Here the democratic rights of unions are being tampered with—and I say this quietly, understandingly, and without emotion. I beg noble Lords opposite to study this clause carefully before they push it through, and to consider the situation which would result from its implementation. Having listened to my noble friend Lord Stow Hill, who spoke so eloquently, quietly, constructively and cogently, I consider he put forward an unanswerable argument why my noble friend's Amendment should be accepted. We are putting too much power into the hands of individuals.

What have we done in this Bill? What are we doing in Part 8? First, we are putting crippling restrictions on official strikes. Secondly, we are effectively prohibiting sympathetic strikes, and the Minister can invoke Clause 138 without appealing to Parliament if he wishes to take action. Thirdly, we have an effective prohibition on unofficial strikes. Fourthly, we can make illegal all strikes in nationalised industries because we can say that the services concerned are absolutely vital to the safety and security of the nation. Fifthly, we can make illegal all unofficial strikes by action taken under Part 8 and this clause. We can clip the power of shop stewards; we have done it already, and we have clipped the power of local union officials. This is after the whole system has been worked out over a century of trial and error in a particularly British manner.

When I hear noble Lords citing examples from the United States of America it upsets me, because I have been in America when bitter strikes have taken place in Detroit and elsewhere. To ape the industrial systems of the United States of America is a retrogressive step for a nation which gave birth to the British trade union movement. I remember making a speech on Second Reading urging this House not to be panicked into action which it might be sorry about years later. There may be another Government of a different political persuasion. There may be a Government which is more abrasive than the present Government—though that would be difficult—and if it were to make use of these powers I think of the chaos which could he created. I recall what I saw in South Wales in the 1921 strikes and the 1926 strikes when, despite the bitterness, hunger and misery, there were a sense of humour and a sense of understanding between the police and the strikers. We are going to lose all that by trying to put on paper things which can never be satisfactorily put on paper or in a Bill. We are setting up a system of society controlled by civil servants and trade union ballots. Nobody can contradict that statement because that is the general effect of this Bill.

My eighth point is that we are interfering with rules which the unions have built up to discipline people. Civil servants, lawyers, doctors, the B.M.A., have their own internal"club"rules. Why should not the trade union movement have its own internal"club"rules? It has not been venomous, and it has not been built up for victimisation. Again, we are interfering, or trying to interfere, with the closed shop union, and God knows what we have now invented—it is a maverick system of trade unionism—to try to get an answer to the closed shop question. My tenth point is that lawyers, not unions, are now to be called in to control so-called restrictive practices and to solve demarcation problems. The situation will be a bonanza for young lawyers who have just qualified. They will not have a clue what they are talking about as regards industry—I have met them. Later on they may come to this House as noble Lords and as judges; but Heaven forbid that at the beginning of their careers these young men looking for briefs should step in to the virile, bristling, industrial entity that we call the trade union movement in times of strike or in times of differences.

I ask the Minister to listen carefully to the two cogent speeches which have been made by my noble friend on the Front Bench and by my noble friend Lord Stow Hill, who put forward his point unemotionally and appealingly. My eleventh point is this—and I have reduced my speech to four minutes. Under this Bill, employers can invent splinter and company unions. Spencerism par excellence can now come into the British system of trade unionism, and those of us who lived through Spencerism and know what it meant, know what a tragedy it was and how it upset industry and the management side. Practical assistance from employers is to be fostered at the expense of democratic unions, and noble Lords on both sides of this House, and directors and others outside are not asking for this venomous, this Draconic legislation—the noble Lord opposite is correcting me—that is being put forward. The noble Lord, Lord Drumalbyn, stands there like Horatius on the bridge. He is working very hard, and sometimes, being Etruscan, I can hardly fail to cheer him. Sometimes he needs a few more colleagues to protect the bridge because he has been alone, and I do not want him to throw himself with his armour into the River Tiber. But I am asking him, before he turns us down, to take back this Amendment and think about it, because this matter is the hinge of the democratic movement of the trade unions.


My Lords, after the succession of eloquent perorations to which we have listened I venture to put a simple point, because there is no need to go round and round the mulberry bush on this issue. What is it about? The question is whether the Secretary of State, who is mentioned in this clause, apprehending an industrial dispute of a substantial character calculated to disturb the life of the nation, should seek one of two alternatives. The first is to consult his Cabinet colleagues as to whether the Government should ask the consent of Her Majesty to declare a State of Emergency. The second is to consult Parliament if he merely apprehends an industrial dispute of what might be regarded as a normal character—one concerning a particular industry or a sector of industry—before he approaches the Industrial Court with an order to proceed as directed in the clause. That is the issue.

But the further question is: what should be the method of consultation? Should he go to Parliament with an Order in Council which calls for an Affirmative Resolution which obviously cannot be amended? There could be a Motion by the Opposition, or by those who were opposed to the submission made by the Secretary of State, calling for the rejection of the Order, but no amendment could he moved. That is one method that he might employ. The other method is what might be described as of a traditional character; namely, apprehending a dispute, he would go to the other place—and then the matter would come to your Lordships' House, if necessary—to report and indicate that, in his judgment, the matter should go to arbitration or that some other method of conciliation should be adopted, subjecting himself to questions in the other place and having a decision reached by the Government. We have had experience of that, and the experience which I have in mind should be retailed to your Lordships' House.

Not very long ago there was a seamen's dispute which lasted over a period of seven weeks. It disrupted industry to a substantial degree and affected the economy of the country and, indeed, the policy of the Labour Government. The Minister of Labour at the time—I need not mention the name—declined to intervene. The dispute dragged on. Those of us who were concerned because it was a seamen's dispute consulted the Seamen's Union and the employers, the Shipping Federation, with a view to conciliation. We also sought to prevail upon the Minister of Labour at the time that he should intervene, but, over and over again—and this is a point of substance—he declined to intervene, because he said that it was not the business of the Minister of Labour to intervene unless he was asked, and the dispute dragged on with consequences that are familiar to every Member of your Lordships' House.

All we are entitled to ask for is this. If the Secretary of State, in his judgment, considers that a dispute is likely to occur which would disrupt the economy of the country, he should exercise that judgment by asking the Cabinet to use the emergency powers. But he has the alternative of going to the other place, making a submission, subjecting himself to questions, collecting the voices on both sides in the other place, and then taking what action is appropriate. If the noble Lord could answer the questions which have been put by my noble friends with a great wealth of detail and argument, and tell us what is in his mind and what he would expect the Secretary of State to do in the circumstances that we envisage, it would help us to come to a decision.

4.49 p.m.


My Lords, we have had a dicussion which has been somewhat interrupted, but which, nevertheless, has been of considerable importance. Reference has been made to the Emergency Powers Acts, and I think the noble Lord, Lord Shinwell, treated them as an alternative to the present procedures. The noble Lord, Lord Champion, suggested that by these proposals in the Bill we are doing something which is quite different from the Emergency Powers Acts. The first point I should like to make is that the circumstances are certainly not the same. Secondly, we were talking just now about Parliament passing a Bill conferring certain powers on the Secretary of State, and it is perhaps interesting to look back at the powers that were conferred by the original Emergency Powers Act, under which Her Majesty declares that an emergency exists. The original Act conferred on the Government powers to make regulations which would be laid before Parliament. They would not continue in force for more than seven days unless a Resolution of both Houses was made, but they would, of course, come into force at once.

The Proclamation of Emergency itself had to be laid before Parliament, and the Act provided—and the noble Lord agreed that perhaps his Amendment was somewhat defective in this respect—for the summoning of Parliament within five days if it was not in session at the time. I think it is important to recognise the enormous powers that were conferred in that way, because regulations made under the Act could confer or impose on the Secretary of State or other Government Department such powers and duties as Her Majesty may deem necessary for the preservation of the peace, for securing and regulating the supply and distribution of food, water, fuel, light, and other necessities, for maintaining the means of transit or locomotion, and for any other purposes essential to the public safety and the life of the community, and may make such provisions incidental to the powers aforesaid as may appear to Her Majesty to be required for making the exercise of those powers effective. Then it went on, as the noble Lord quoted: Provided also that no such regulation shall make it an offence for any person or persons to take part in a strike, or peacefully to persuade any other person or persons to take part in a strike. It is important to recognise what the powers under the emergency procedures of the present Bill are. In the first place, the Secretary of State is to apply to the Industrial Court. He is to make an application to the Industrial Court where it appears to him that there is or is likely to be in the near future, an industrial dispute, industrial action, consisting of a strike, any irregular industrial action short of a strike ", and that that strike, if it came about, would be likely to be gravely injurious to the national economy, to imperil national security or to create a serious risk of public disorder, or… to endanger the lives of a substantial number of persons, or expose a substantial number of persons to serious risk of disease or personal injury. Nobody could say that that was not an emergency. The essence of dealing with an emergency, surely, must be speed. The noble Lord asks that this should be done only with a Resolution of Parliament. My Lords, it might be necessary to bring Parliament together again—this is not provided for—but an emergency of this sort of character could only deepen this delay, so that is a very good reason in itself for conferring powers of this character on the Secretary of State and ensuring that they are processed as quickly as possible. But I think I should point out to noble Lords something which has not yet been mentioned, and that is that the Secretary of State is to make this application only if it appears to him that, having regard to all the circumstances of the industrial dispute, it would be conducive to a settlement of it by negotiation, conciliation or arbitration if the industrial action were discontinued or deferred. It is for that purpose, with the settlement of a strike in mind, that he has to make his application.

The first point, therefore, is that an emergency situation may be one that is not covered by the Emergency Powers Act because there is no power in that Act to prevent anyone from persuading any person or persons to take part in a strike. So there is a gap there; and this is one way in which the gap could be filled in an emergency situation. In making an application the Secretary of State has to specify the persons appearing to the Secretary of State to be responsible for calling, organising, procuring or financing the strike ", and it is those persons alone that any order can bind. To answer the question which the noble Lord, Lord Cooper, put to me, there is no question here of sitting in judgment on the trade unions. The order is made on specified persons; and, of course, it is only if they disregard that order that, as always happens when a court order is disregarded, they will come before the court.

My Lords, the second point that I should come to, I think, is this. There is a curious constitutional position which could arise if a Resolution of Parliament were required. Suppose that a Resolution is passed by Parliament authorising the Secretary of State to apply to the Court. There could be an appeal from the Court to the Court of Appeal, and thence to the House of Lords; and if the appeal were against a decision to grant a restraint order, your Lordships here would be in the position, in effect, of adjudicating on a Resolution which your Lordships had made earlier. So this would go full circle.


My Lords, may I interrupt the noble Lord? Is he trying to make a distinction between a Resolution presented to the other place, either by the Government themselves or by the Opposition, and an Order in Council, which is submitted by the Government and, maybe, calls for an Affirmative Resolution without possibility of amendment?


My Lords, I am not making any distinction at all. I am talking about what happens if, under this Amendment, a Resolution of both Houses were required before an application could be made to the Court: because this is what the Amendment is about. I am simply saying that if that happened the Secretary of State would be authorised to make the application, the Court would decide on that application, there could he an appeal and the thing might come round full circle again to the House of Lords. This may not be a point of very great importance, but it shows the kind of difficulty, the kind of crossing of the wires, that this suggestion would bring about.

The noble Lord, Lord Stow Hill, asked me about my experience in Parliament, and I would say this to him. My recollection throughout of the treatment by Parliament of industrial disputes is that it is one of the greatest restraint. If Resolutions of this character were brought forward to the House, what would be the result? I am quite certain that, at a stage like this and under a procedure like this, they would not be appropriate. I believe that it is much more likely that in an emergency there would be pressure from both Houses of Parliament to make use of this procedure, rather than to stop it. This is a matter in which the Secretary of State has responsibility, and the Government have a responsibility, for ensuring the health and the safety of the population and the health of the national economy; and they are answerable for their actions to Parliament.


My Lords—


Will the noble Lord allow me to continue? The noble Lord asked: while the application is before the Court, will it be possible to debate this in Parliament? The issue of whether there is an emergency in this sense and whether the application for an order should be granted could not, I imagine, be debated in Parliament. He asked my personal opinion, and that is it.

But, of course, those are not the only issues. The Secretary of State will also be responsible for deciding whether, having regard to all the circumstances of the industrial dispute, it will be conducive to a settlement of it by negotiation, conciliation or arbitration if the industrial action were discontinued or deferred. This is not a justiciable issue. This is a matter on which I am sure it will be right for the Secretary of State to be questioned in Parliament. But can anyone imagine that an application will be made without the Secretary of State coming to Parliament?




My Lords, I have vivid recollections on many occasions of the Secretary of State, as Lord Shinwell was saying, gradually being pressured all the time to take some further action. This is what happens. It is quite the reverse of what noble Lords are suggesting in this Amendment. When there is an emergency brewing, Parliament will be aware of it, the Secretary of State will be making statements to Parliament in the ordinary way. Then he will make up his mind to make an application and I have no doubt that he will carry the whole of Parliament with him.


My Lords, I do not want to be testy and irrascible, but this is the nub of the problem. Parliament will give way; but they will have been presented with a fait accompli. The Minister will have already made his decision and told the Estates-General or the Reichstag, whichever then exists,"I have made the decision." There will be no possibility of changing that decision. Am I right in this? I stand to be corrected.


My Lords, there is no possiblity of changing the decision to make an application to the Court; but it will then be for the Court to look at the circumstances and to give a decision. May I say also that when an Order in Council is made for proclaiming an emergency, again the Government announce this to Parliament and lay it before Parliament. It does not need a Resolution that they should do so. The regulations have to be presented and will lapse unless they are passed within seven days. But that is another matter; that is the counterpart of the matter going before the Court.

My Lords, this is a very reasonable method of proceeding. When there is an emergency the Government are entitled to the support of Parliament to deal with that emergency. In my experience, when crises of this sort arise Governments do get the support of Parliament. It would merely give rise to delay and to some confusion if this Amendment were accepted.


My Lords, the assumption behind what the noble Lord has said is that the Industrial Court will be the"Yes-man"for the Secretary of State. Let us assume that the Industrial Court is not the"Yes-man "; let us assume that the Court says,"No, this is not a national emergency." Therefore they will throw it out. Is that decision final? Or will the Secretary of State then go to the Cabinet and say,"I must have emergency powers and get an Emergency Powers resolution because the Industrial Court will not do what I want." If the Industrial Court says,"No! We are not prepared to give an order ", is that the end of the matter?


My Lords, I was trying to explain that the Emergency Powers Act does not cover the whole of the field. There is a gap here. But if the Industrial Court would not make an order, that is certainly the end of that particular case; an order would not be made against the person specified in the application.


My Lords, the noble Lord has admitted that these clauses deal with an emergency situation. I say, and I think that those on this side will say, that in any emergency situation Parliament should be consulted straight away; that any matter of this sort should be brought before Parliament without a moment's delay and Parliament should be expected to adjudicate to some extent upon it and make a decision. This would be done under my Amendment but not under the procedure in the Bill. We may have a situation in which the Secretary of State will take his decision to go to the Court on, say, August 7, when Parliament is not sitting. Parliament then will not be sitting to consider the matter until some 80 or 90 days have passed. That is not consulting Parliament. That is not making sure that Parliament is being informed even of what is taking place. I am positive that this is quite the wrong way of setting about this job.

My noble friends asked questions that were not answered. Lord Cooper asked a simple question: if an order were given against a union and the union breached the order, will not the same court impose the sanction? It seems to me that he was entitled to an answer. I am sure the noble Lord will agree that the answer is, that it will be the same court operating in both cases.


Yes, my Lords. I said so.


My Lords, I am sorry I did not hear the answer. The other point, which I think deserves some special attention, was, how much of the procedure becomes sub judice and therefore prevents question and answer and decisions in Parliament. For how long would this last? That was the question put; and I am not sure that it was answered clearly.

I am sure that we shall never get together on this. The only thing that we can do is to register our protest against the clause itself and, in particular, against this ignoring of Parliament by the Party opposite in relation to something which, as the noble Lord has admitted, is an emergency situation.

5.8 p.m.

On Question, Whether the said Amendment (No. 92A) shall be agreed to?

Their Lordships divided: Contents, 62; Not-Contents, 114.

Addison, V. Evans of Hungershall, L. Popplewell, L.
Airedale, L. Gaitskell, Bs. Raglan, L.
Archibald, L. Gardiner, L. Ritchie-Calder, L.
Ardwick, L. Garnsworthy, L. [Teller.] Royle, L.
Beaumont of Whitley, L. Greenwood of Rossendale, L. Rusholme, L.
Bernstein, L. Henderson, L. Sainsbury, L.
Beswick, L. Henley, L. Segal, L.
Birk, Bs. Hilton of Upton, L. [Teller.] Shackleton, L.
Blyton, L. Hoy, L. Shinwell, L.
Brockway, L. Hughes, L. Silkin, L.
Brown, L. Tanner, L. Slater, L.
Buckinghamshire, E. Kennet, L. Sorensen, L.
Burntwood, L. Kilbracken, L. Stow Hill, L.
Carnock, L. Leatherland, L. Summerskill, Bs.
Champion, L. Lindgren, L. Tanlaw, L.
Cooper of Stockton Heath, L. McLeavy, L. Taylor of Mansfield, L.
Crook, L. Maelor, L. Walston, L.
Davies of Leek, L. Mais, L. Wells-Pestell, L.
Diamond, L. Moyle, L. White, Bs.
Douglas of Barloch, L. Pargiter, L. Wootton of Abinger, Bs.
Douglass of Cleveland, L. Platt, L.
Ailwyn, L. Dundee, E. McFadzean, L.
Albemarle, E. Dunleath, L. Macleod of Borve, Bs.
Amory, V. Ebbisham, L. Mancroft, L.
Atholl, D. Eccles, V. Margadale, L.
Balerno, L. Elliot of Harwood, Bs. Masscreene and Ferrard, V.
Barnby, L. Emmet of Amberley, Bs. Milverton, L.
Belhaven and Stenton, L. Essex, E. Molson, L.
Belstead, L. Falkland, V. Monck, V.
Berkeley, Bs. Ferrers, E. Monckton of Brenchley, V.
Bessborough, E. Ferrier, L. Morrison, L.
Bledisloe, V. Fortcscue, E. Mowbray and Stourton, L. [Teller.]
Boothby, L. Fraser of Lonsdale, L.
Boston, L. Gage, V. Northchurch, Bs.
Bourne, L. Garner, L. Nugent of Guildford, L.
Brentford, V. Goschen, V. [Teller.] Oakshott, L.
Brooke of Cumnor, L. Greenway, L. Rankeillour, L.
Brooke of Ystradfellte, Bs. Grenfell, L. Robbins, L.
Burton, L. Gridley, L. Roberthall, L.
Camoys, L. Grimston of Westbury, L. Rochdale, V.
Cawley, L. Hailes, L. Rothermere, V.
Clifford of Chudleigh, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) Rothes, E.
Clwyd, L. St. Aldwyn, E.
Coleraine, L. Hankey, L. St. Just, L.
Coleridge, L. Hatherton, L. Salisbury, M.
Colgrain, L. Hives, L. Sandford, L.
Colville of Culross, V. Hood, V. Selkirk, E.
Cornwallis, L. Hurcomb, L. Sherfield, L.
Courtown, E. Hylton-Foster, Bs. Somers, L.
Craigavon, V. Ilford, L. Strang, L.
Cranbrook, E. Jellicoe, E. (L. Privy Seal.) Strange, L.
Crathorne, L. Kemsley, V. Strange of Knokin, Bs.
Cromartie, E. Killearn, L. Strathclyde, L.
Davcntry, V. Kilmany, L. Tweedsmuir, L.
Davidson, V. Kilmarnock, L. Tweedsmuir of Belhelvie, Bs.
de Clifford, L. Latymer, L. Vivian, L.
Dcnham, L. Lauderdale, E. Ward of Witley, V.
Derwent, L. Long, V. Windlesham, L.
Digby, L. Lothian, M. Wolverton, L.
Drumalbyn, L. MacAndrew, L.

Resolved in the negative, and Amendment disagreed to accordingly.

5.16 p.m.

LORD STOW HILL moved Amendment No. 92F: Page 100, line 9, at end insert— (" ( ) For the purposes of this section, an interruption in the supply of goods or in the provision of services shall not be deemed to be likely to be gravely injurious to the national economy by reason only of the fact that it will cause or is likely to cause substantial loss to or interruption in the activities of any one or more public or private undertakings.")

The noble Lord said: My Lords, this Amendment proceeds upon the footing that it is the Court, and not Parliament, which is called upon to take a critical decision in a situation of this kind. Previously I have ventured to stress what I think is agreed upon on both sides of the House—the importance of not putting a court of law, in particular one over which a High Court Judge presides, in a situation in which it is called upon to undertake functions hardly appropriate for a judicial body. If a judge is asked to decide what comes broadly within the description of matters of public policy, obviously his decision may provoke strong disagreement, and there is always the risk that over a period of time judicial decisions may become misunderstood and, if the worst eventuate, even suspect. That might happen although judges do, as they always do, their uttermost to discharge their judicial duty with complete and absolute impartiality.

The submission I make to the House, which is one I have previously made, is that it is the duty of the Legislature to try to avoid in its legislation any situation which might put the judges in a position of that sort. That consideration, I submit, arises in this particular case, because if one looks at Clauses 138 and 139, what do we find they provide? The Secretary of State is in the first place empowered to decide to make an application to the Industrial Court. The conditions in which he may make that application are set out in subsection (2) of Clause 138—of course also in the preceding subsection, but the critical conditions are those in subsection (2). He must be of the opinion that the situation may be productive of consequences—I summarise— gravely injurious to the national economy ", likely to imperil national security or to create a serious risk of public disorder ", to quote the condition specified in the former of the two paragraphs of subsection (2).

My Lords, when we were discussing the last Amendment we argued whether that type of decision is one which should ultimately rest with Parliament or whether it should be taken away from Parliament and be transferred to the courts. If it rests with Parliament, the two sides of each House are there to express strong views and to embark on highly controversial ground, and so long as the principles of reasonable discussion and the order of the House are complied with, fullest and most vigorous debate can be centred upon the decision. The Minister can be roundly taken to task and the public can be fully satisfied that there has been a robust and vigorous statement of the position from all points of view. The difficulty in transferring that sort of decision to the courts is obvious. The conditions in which the discussion takes place are wholly different, and the result might be, unhappily, the sort of result I have been trying to describe.

My Lords, in order to try to improve the situation (upon the assumption that your Lordships' House has finally decided that it is to be the Court and not Parliament which is to be entrusted with the making of this decision) we are endeavouring by the drafting which appears in this Amendment to achieve some slightly greater precision as to the conditions which the Court must find present before it can make an order. The Secretary of State makes his application to the Court and under Clause 139 the Court makes an order: …subject to its being satisfied on the evidence that there are sufficient grounds for believing that the condition specified in subsection (2) of the preceding section are fulfilled. If one looks back at those conditions, or at any rate at the one with which we are immediately concerned, I submit that they are far too vague. They impose a very difficult and invidious task on the judge to whom the application is made and the appointed members of the Court.

I focus simply on the first one: To be gravely injurious to the national economy. That is a phrase so wide in its import that in the very nature of things it would be very difficult to give a confident answer,"Yes"or,"No"about whether the consequences of industrial action are likely, in that sense, to be gravely injurious to the national economy. What is the standard that one is to apply? What are the questions which the Secretary of State has to ask the Court, and then the Court must ask itself if he makes an application? In a sense, industrial action does harm even if it is on a very small scale; but it may be counter-productive of very great good if it produces a more equitable situation between management and the workers. Work may progress better and a feeling of injustice may be eliminated. But to what stage has one to go before one can predicate that a given situation brought about by industrial action has become gravely injurious to the national economy?

I do not claim great merit, or indeed any merit, for the drafting of the Amendment. It is designed to suggest to the Government a possible method which—if they think it worth further examination—they might like to consider with their expert advisers. The drafting is designed to say that if all you can say about a situation in which industrial action is taking place, or about to take place, is that its consequence is, or is likely to be, a substantial loss to one or a number of public or private undertakings, and you cannot predicate anything more sinister, of itself that would not be enough to enable either the Secretary of State, in making up his mind, or the Court, when it hears the application, to come to the conclusion that the situation may be productive of consequences gravely injurious to the national economy. I am sure that there are a number of defects in that drafting. As I say, it is designed only to embody a suggestion which I hope the Government may think worthy of further exploration.

I feel confident that all Ministers and your Lordships' House as a whole may agree with me in the objective; that it is extremely important to try to be as precise as one can in the formulation of the criteria which must be observed before the Secretary of State moves and the Court has to form a decision. So I can summarise the argument by saying that my objective is to try to get some clearer idea of the sort of situation which the Secretary of State, and thereafter the Court, must have in mind before a conclusion is reached that the expression,"gravely injurious to the national economy"is brought into operation. The approach is to say that if you look at a given situation and all you can predicate with that situation is that the industrial action will, or may, produce substantial loss to a number of undertakings whether private or public, and you cannot say something more, that is not enough. If you look at that situation—I give an example—against a background of a likely strain on the balance of payments, or some situation of that sort, then you have something additional to the fact that loss is, or may be, occasioned to a number of undertakings. You may then well conclude that the situation is one which is likely to be gravely injurious to the national economy. But you must be able, so the Amendment would provide, to say that that situation is something more than merely that loss is going to be occasioned. There must be some background, some other consequence, which may be brought about and to which you can point which affects the national interest. That is the object of the proposal. It would be presumptuous to think that I have the drafting right. I limit my endeavour to what I hope is an acceptable purpose; namely, to make a suggestion which the Government may think worthy of further consideration.


My Lords, would it be in order if at this juncture I asked the noble Lord, Lord Stow Hill, whether he can furnish an elucidation of the significance that he attaches to the words"or more"in this Amendment? To me,"one or more"means one to infinity. If it means that, it might be a blocking restriction on the procedure of the Court. If it means a few, I can see the point that he is trying to make.


My Lords, I am grateful for that question and I will try to answer it. If you take the words"one or more"literally, they might mean any number, a very large number. I am not suggesting that the Amendment is perfect, but even if you have, 10 or 20 important undertakings which will suffer substantial loss, that, of itself, will not justify you in saying that the words"gravely injurious"are fulfilled. But suppose you had 20 undertakings that were occasioned loss, it is then very likely—this is substantially behind the drafting—that there would be some further consequence to which you could point. Suppose there is that sort of situation; suppose that there is a run on the pound or a strain on our balance of payments; if you had industrial action which occasioned substantial loss to 20, 30 or 40 big undertakings in the country then you could say,"This is imposing a serious burden, and now we are in a position to say that a situation has arisen which is gravely injurious "—and so on.

The critical words in the drafting are:"by reason only of the fact ". If all you can show is a loss, that is not enough. The loss very often produces some ulterior consequence, and if you can point to that, it may well be that the words are satisfied. My Lords, I emphasise that I am not claiming that this is a perfect draft. It is simply thinking. I hope it may suggest a way to something more precise than this indefinite"gravely injurious to the national economy ".

5.30 p.m.


My Lords, when listening to my noble friend moving this Amendment, I gathered that he was seeking to remove the responsibility for decision away from this particular Court. One can visualise that the First Secretary within a particular Government Department, who is responsible to his Minister, may have been reading the Press reports regarding certain undertakings operating within the country where there is every possibility of something going amiss, and a likelihood of a stoppage of labour, or a strike, or something of that description. Immediately that occurs, what happens, as many people who have held responsibility within Government know, is that a conference is held with Ministers, and with some of their background people from executive positions. Their advice is sought, and the Minister begins to probe them with questions and to seek answers.

I take it that what he would then seek to do, after he has examined the situation would be to come to certain conclusions. One of those conclusions, probably, would be that he would seek to have an interview with the Prime Minister—not so much with the Cabinet, but with the Prime Minister, as the principal Minister of the Government—to whom he would pass on the information that he had had this inquiry—because the Prime Minister would no doubt be kept informed by his own Department as to the reports that had appeared in the Press to which I have referred. Naturally, with the national Press as it is, circulated throughout the country, there could be types of disturbance originating from those reports. Therefore the Minister has to find some form of solution to try to offset types of criticism which might be ventilated and which could be most damaging to the situation that had been talked so much about within the columns of the national Press. He therefore has this interview with the Prime Minister. He airs his views, and eventually the Prime Minister may say to him:"Well, what do you intend to do? Do you think that this is a case which ought to be referred to the Industrial Court? Ought the Court to take the decision? ". The attitude of the Minister may be that that responsibility ought to be passed on to that Court.

My noble friend, if I understood him aright, said that the Court if forced into the position whereby it must arrive at a decision, would be as impartial as it was possible to be in seeking to arrive at a right and proper decision. But, my Lords, would it be right, in the circumstances, and under this Amendment that has been proposed by my noble and learned friend for such a case to be passed on to that Court? After all, you can pick up newspapers, you can have your journalists, and even they can be well outside the pale when they predict what will happen but never does happen: the situation never comes to the type of fruition they believed it would come to in the circumstances.

5.34 p.m.


My Lords, the noble Lord, Lord Stow Hill, in moving this Amendment submitted that the Court will be in a difficult position because their decision will be based on subsection (2)(a) and (b) of this clause. But I felt that the noble Lord was rather easily disregarding two factors. The first is the factor which your Lordships have just debated on the last Amendment, that is the Government's stand that speed is vitally necessary in these matters. The Government are submitting (and have secured the agreement of your Lordships on the last Amendment) that that is not a matter for Parliament but a matter which should go directly to the Court.

The second point which I felt that perhaps the noble Lord was to some extent disregarding was the point made by the noble Lord, Lord Drumalbyn, at the Committee stage of the Bill, that certain stages would have been passed through. I agree with Lord Slater, but I reached a different conclusion; that is, that stages will very likely have been passed through in a matter of this sort; that undoubtedly the matter will have been in the Press, unless it has come out of a clear blue sky; that undoubtedly there will have been, let us trust, negotiations; let us believe that there will have been attempts at conciliation by the officers of the Department; and that indeed a good deal will already have been known about the situation before in fact it goes to the Court. I concede at once to the noble Lord that"gravely injurious to the national economy"is a wide phrase, but I am suggesting to the noble Lord that it will be a situation where undoubtedly certain matters will have been clarified by the time the matter reaches the N.I.R.C.

My Lords, if I may now come specifically to the noble Lord's Amendment, the criteria in Clause 138(2), against which the effects of industrial action are assumed, are stringent, and I admit to your Lordships that they are intended to be stringent. Your Lordships will no doubt have noticed that in fact these criteria make no mention of a substantial loss (which I take from the Amendment to be a financial loss) to any individual undertaking. Once again, it is not the intention of the Bill that the reference should be limited in this way. Whether at some point in time the loss to an individual undertaking may be considered to be gravely injurious to the national economy or would satisfy any of the other criteria, would be a matter for the Industrial Court. That is as may be, but at any rate I submit that one thing is clear; that is, that the emergency criteria could not be involved unless that loss was likely to have one of the effects set out in subsection (2) of Clause 138. Therefore, with respect to the noble Lord, I feel that the use of the words in this Amendment to some extent confuses the intentions of the clause as printed in the Bill. Although I shared the uncertainty of the noble Lord, Lord Robbins, I did not feel that the explanation which the noble Lord, Lord Stow Hill, gave—which of course was perfectly accurate, as it always is from the noble Lord—none the less took our discussion a great deal further forward.

My Lords, the same argument applies to the reference in the Amendment to interruption of the activities of an undertaking, but quite apart from difficulties of interpretation of the Amendment, there are stronger objections to the inclusion of this proposal. Your Lordships will be aware of a number of undertakings, particularly in the public sector, where interruption of activities on any substantial scale may lead immediately to an emergency situation as we are trying to define in this clause. One can think immediately of all the public undertakings and the various health services, to mention just a few. The noble Lord has referred to the inadequate drafting of the Bill—


With respect I referred to my own inadequate drafting; not that of the Bill.


My Lords, I am sorry. The noble Lord referred to the difficulty of interpreting the drafting of the Bill which his Amendment seeks to improve, but I do not see how the House, looking at the Amendment, can possibly distinguish, in many of these services to which I have just referred, between the effect on the community and the effect on the undertaking when its activities are interrupted. Anyone who has read the opening paragraphs of Mr. Andrew Shonfield's Note of Reservation—I am not talking of his conclusions at all, but his opening paragraphs—would agree that the effects of sudden strike action on services to an increasingly urban population really can be very grave indeed. It is this criterion as it is developed in subsection (2)(a) and (b) which should form the basis of a decision of the Industrial Court, for may I remind your Lordships that the question of whether an emergency situation exists is solely for the discretion of the Industrial Court, and it is for the Court alone to decide whether or not the criteria in subsection (2) of this clause are satisfied. For those reasons, which I hope may have persuaded the noble Lord, I must ask your Lordships if you will to resist this Amendment.


My Lords, I am grateful to the noble Lord for his reply. May I say first in answer to the noble Lord, Lord Slater, that my object was not to withdraw the matter from the Court but to try to formulate with some more precision the question which the Court would have to answer. That was my objective.

In answer to the noble Lord, Lord Belstead, if I were a learned judge (which I am not) and were called upon to answer the questions about which he would have to be satisfied from the evidence under Clause 139, I should not find myself so worried when asked, Yea or Nay, whether the interruption was"likely to expose a substantial number of persons to serious risk of disease or personal injury ", or if asked whether the interruption would really"endanger the lives of a substantial number of persons ", or"was likely to imperil national security ", or"likely to create a serious risk of public disorder ". On all these questions I would have before me evidence to which I could address myself. But I should be very worried if called upon to answer the question, whether the interruption would be"gravely injurious to the national economy ". I find it difficult to know what evidence I should need to have to answer that general and vague question.

The apprehension which I had in moving this Amendment is that it is most undesirable that judges should be called upon to give answers to a general and highly controversial question of that sort—answers which will be dissected and criticised throughout the country and which, over a period of time, may possibly have the result of undermining confidence in the judges. One of the critically important things in the maintenance of our democracy is that everybody should have the utmost confidence in our Judicial Bench. Therefore, speaking from the Opposition Benches, I felt it my duty to call attention to what I think is a risk, and to suggest to the Government a possible way of making any question submitted to the Court more susceptible to a judicial decision. The noble Lord, Lord Belstead, does not commend the Amendment to your Lordships and I do not think I can carry the matter further. Having put my case, I would respectfully ask permission of the House to withdraw the Amendment.

Amendment, by leave, withdrawn.


My Lords, we had a very late start and I do not propose to move Amendment No. 92G and the following five Amendments.

Clause 141 [A pplication to Industrial Court for order for ballot relating to industrial action]:

5.45 p.m.

LORD STOW HILL moved Amendment No. 92N: Page 103, line 23, leave out (" either or ").

The noble Lord said: I am sorry that I am calling upon the House again so quickly to listen to my argument: that was because there was a sudden cessation of activity since the last Amendment. The objective in this Amendment is similar to that in the last Amendment, although there are some differences. If it were for the convenience of the House, I would acquaint your Lordships that this Amendment goes closely with Amendments Nos. 92Q, R, S, T and U. In Clause 141 the Secretary of State is empowered to approach the Industrial Court for an order, if there are reasons for doubting whether the workers taking part or expected to take part in a strike, were taking part in it in accordance with their wishes and whether they had had an adequate opportunity of indicating their wishes. If one or other of the conditions specified in subsection (1)(a) and (b) of the clause are satisfied, we are thrown back on the conditions we have just been discussing on Clause 138(1)(a).

When we discussed the previous version of this clause on Committee stage, the point was made that it is for the Secretary of State to make a decision whether there are reasons for doubting that the strikers are in favour or not, and if he makes the decision he can approach the Industrial Court. The Court is not asked to confirm or reverse his decision. Its opinion is not relevant on the question whether there is doubt or not. All the Industrial Court is called upon to decide is whether the conditions, or one of them, set out in Clause 138 is present or not.

Noble Lords on this side pointed out that in a situation in which industrial action has started or is about to start, and there is strong feeling on the part of workers in an undertaking that they are not receiving fair treatment in conditions of remuneration—there may have been negotiations going on for a considerable period of time, perhaps in the view of the workers' negotiators protracted unnecessarily and tempers are running high—the Secretary of State is called upon to make a difficult and crucial decision. That being the situation, he may come down and in effect get from the Court, because he thinks there is doubt as to the attitude of the strikers, a decision that there must be a ballot. The ballot has got to take place, and the clauses later on provide that while the ballot is taking place the strike has got to stop. That is not quite accurate: the clauses provide that those who are organising the strike have got to cease organising it and take steps to try to bring it to an end while the ballot is being taken.

The group of clauses is designed to deal with emergency situations in general. I would have submitted to the House that if, with the best will in the world, a Secretary of State takes it upon himself upon his own judgment to say,"I doubt whether the workers really are with this strike or not"and to initiate the action which may result in an order that the organisers of the strike have to stop, not only stop organising it, but have to go out of their way to withdraw instructions to try to bring the strike to an end, instead of that being likely to produce a harmonious conclusion to the trouble it is almost certainly in most cases that one can envisage likely to conduce to precisely the opposite result. It will exacerbate feeling. Those who start out feeling very intensely that they are victims of an injustice, that they have not been fairly met by management, are not going to be mollified by that outside intervention from the Secretary of State. On the contrary, they are going to be infuriated by it.

Then one has all the difficulties that one envisages in this kind of context. Are they going to obey an order of the Court? Well, my Lords, I know that the order does not affect the strikers themselves. It affects those who organise the strike, the officials of the union and so on. But are they then going to be made parties; is the law going to be brought into disrepute; is it going to be resented? That is the last thing that we want to bring about in our country, and I should have thought that that is the sort of consequence which might result if the arrangements are left as they are at present formulated in Clause 141.

In those circumstances, the approach which I would suggest by the drafting which I ventured to put on the Order Paper would have the following result. To begin with, it would mean that the Court would have itself to pronounce upon the question whether the strikers really were with the strike or not—and the wording there is reformulated from the wording in the clause. The clause talks about doubt. There is greater precision in my submission, as to the exact question which, if these Amendments are accepted, the courts would have to pronounce upon by the words which I hope I may read out without taking your Lordships' time unnecessarily. The Amendment 92T substitutes for the words in the clause the following words: (c) the majority of the workers who are taking part or are expected to take part in the strike or other industrial action are or would be taking part in it against their wishes and have not had an adequate opportunity of indicating their wishes in this respect.") That would be the matter on which the Court would have to pronounce on some evidence. It would not be left simply to the unchecked judgment of the Secretary of State. That is the first change I seek to introduce.

The other change which I seek to introduce is to paragraph (b) of subsection (1) of Clause 141. Paragraph (b) in its present form provides that it is enough if either of the conditions which are specified in Clause 138 are satisfied. I do not want to go back to them, as that would be taking unnecessary time, but the second change would be that both the conditions must be present. The Court would have to be satisfied that both conditions are present and, furthermore, that the condition as to majority view of workers was also satisfied. All those three requisites would have to be satisfied by evidence before the Court made an order. It is again in an attempt to suggest to the Government a possible change that might obviate the tense situations which I have tried to describe and which would produce a greater likelihood of some harmonious end to a difficult situation, that I have ventured to put down Amendments Nos. 92N, 92Q, 92R, 92S, and 92T. I beg to move.

5.56 p.m.


My Lords, I am grateful to the noble Lord for having explained this series of Amendments so clearly. I have no disagreement with him on what these Amendments mean, but the fact remains that they would completely change the character of the ballot order provision as envisaged in the Bill. The Secretary of State would then be able to apply for a ballot order only if one or other of the two emergency criteria governing a restraint order set out in Clause 138 was satisfied, in addition to the conditions that the effects of industrial action on a particular industry are or are likely to be seriously injurious to the livelihood of a substantial number of workers employed in that industry, and that the majority of those taking part or likely to take part in the individual action would be doing so against their wishes without having had an adequate opportunity to indicate their wishes. In fact, I do not think the noble Lord said one or other. I think he said that all three conditions would have to be satisfied.

We think that this is far too restrictive and we think it is unfair to workers in an industry whose livelihood is likely to be affected by, for example, a serious strike. We believe that occasions may arise when it would be entirely appropriate for the Secretary of State to be able to apply for a ballot order when by itself the effect of a particular course of industrial action gives grounds for believing that the livelihood of a substantial number of workers in that industry may be seriously affected. We also believe that this effect should not by itself be a necessary criterion for a strike ballot application. There may well be situations, particularly in some public services, where industrial action, while not necessarily injurious to the livelihood of workers in a particular industry, is likely to cause grave damage to the interests of the community at large.

I would suggest to your Lordships that it would be absurd to debar the Secretary of State from making his application if he considered that a strike ballot was the necessary course on the grounds that, while the effect of the industrial action might be to cause a national emergency, it could not be shown at the time of the application that the effects of the industrial action were also likely to injure seriously the livelihood of workers in an industry. Yet this would be the effect of the first of the noble Lord's Amendments, as I understand it. So it would restrict the possible uses of the ballot order provisions to an extent that we do not think would accord with requirements.

These Amendments certainly place even more stringent conditions on the powers of the Secretary of State than that. I do not see how the Secretary of State could be called upon to substantiate an application before the Industrial Court at one and the same time that one of the conditions demands positive grounds for believing that the majority of workers taking part, or likely to take part, in the industrial action would be doing so against their wishes, and also that he would have to show that they had not had adequate opportunity to indicate those wishes. Let me put it in this way. If they have had an adequate opportunity to express their wishes, then the Secretary of State will know what those wishes are; if they have not, he cannot possibly know for certain what their wishes are. Hence the words in the Bill,"there are reasons for doubting whether ". That is the very object of those words. But these are the words that the noble Lord's fourth Amendment would leave out. They seem to be extremely important.

Amendment No. 92P proposes that this conundrum should not be just for the Secretary of State. The Industrial Court would be required to reach a decision on it, on evidence submitted by the Secretary of State, before the Court could make a ballot order. I do not see how the Court could reach a decision on these conditions. Then, in addition, Amendment No. 92P, coupled with No. 92T, requires the restrictive conditions about the evidence of the emergency situation to be put before the Court. I have just indicated the objections to that. Taken together, therefore, these Amendments would impose conditions which are incapable of being satisfied, and would I believe, undermine the purpose of the ballot order provisions in situations of emergency. I hope that I have made the point clear to the noble Lord. It is extremely difficult to place an obligation on the Secretary of State to satisfy the conditions which the noble Lord would make and which, instead of being alternative, would all need to be fulfilled. I do not think this would be right; it would not meet the situation: and I do not think the Secretary of State could fulfil the obligation in those circumstances.


My Lords, I am obliged to the noble Lord. There is one small observation that I should like to make. The noble Lord said he did not know how the Court could decide about the attitude of the workers under Clause 192. That is not quite what the Court has to do. It has to be satisfied on the evidence that there are sufficient grounds for believing; that is to say, it is not a complete conviction, but something more than a prima facie case. However, I will not take up time on that. The noble Lord said that the purpose of my Amendment was to make the situation, to use his term, much more restrictive. Frankly, that was exactly the purpose of the Amendment. It was designed in terms to make the options open to the Secretary of State far narrower. The noble Lord thinks that it is too restrictive. That is a matter of judgment between us, and I do not think it would serve any useful purpose to continue with the discussion. That being so. I ask leave to withdraw Amendment No. 92, and shall not move the other related Amendments.

Amendment, by leave, withdrawn.

6.3 p.m.

LORD STOW HILL moved Amendment No. 92U: Page 103, line 41, at end insert— (" ( ) For the purposes of this section the effects of such industrial action shall not he deemed to be such as to be likely to be seriously injurious to the livelihood of a substantial number of workers employed in that industry by reason only of the fact that it will or is likely to result in a substantial loss of remuneration to them in that industry over a prolonged period of time.")

The noble Lord said: My Lords, this Amendment is on a different point. It is closely analogous to the last Amendment I moved to Clause 138. It is designed to try to introduce some more precision into the expression, such as to be seriously injurious to the livelihood of a substantial number of workers employed in the industry ". That finds its place in paragraph (b) of subsection (2) of Clause 191. Again I can use almost exactly the same arguments, although I am anxious not to repeat myself. What are the criteria that anybody has to employ in answering the question whether the effect of industrial action is likely to be seriously injurious to the livelihood of a substantial number of workers employed in that industry? Is it enough to point to the fact that they will not be receiving their normal remuneration during the period of the strike? Is it enough to say that that period will extend probably for five weeks, six weeks or even more? I submit that the phrase is so indeterminate in scope that it is putting a difficult task upon the Court, under Clause 192, to require the Court to make a decision upon it. That engages precisely the same arguments as I addressed to the House when I moved my Amendment on Clause 138.

I suspected that my Amendment to Clause 138 was defective. My suspicions are still more acute that my drafting of this Amendment, No. 92U, is defective. In particular, I thoroughly dislike the phrase,"over a long period of time ", but it is difficult to find another phrase. What I mean is that if all you can say is that the workers who are engaged are not going to receive their remuneration over a period of time—the remuneration that they would otherwise have received—and consequently, to that extent, will be impoverished, that is not enough to enable either the Secretary of State or the Industrial Court to reach a conclusion that the effect of the industrial action is such as to be seriously injurious to the livelihood of the workers. That is the point.

I frankly concede that I do not like the drafting, which I hope I may say perfectly freely as being the author of it. I merely put it forward as a suggestion, which again I hope the Government may think it worth while pursuing, in order to make the Court's task and also the Secretary of State's task rather easier, to formulate with some greater precision the question on this aspect of the case to which the judges of the Industrial Court would have to address themselves. With that object in view, I beg to move.


My Lords, the noble Lord has been good enough not to go over the arguments that he put on the Committee stage, and I propose to follow his example: we have both had an opportunity of re-reading them. The problem here, as I see it, is: does the Amendment do anything to clarify this position? The noble Lord seems to think that it does. We have great difficulty in seeing that it does, and I shall try to persuade him to our point of view.


My Lords, I did not say that I thought it did. I said that I hoped it did, which is a very different thing.


My Lords, I stand corrected. What the noble Lord is attempting to do is to make a distinction between serious injury to a man's livelihood, on the one hand, and, on the other, substantial loss of remuneration over a prolonged period of time, a distinction which in certain circumstances, at any rate, I should have thought it would be quite impossible to sustain. If substantial numbers of people lose their jobs as a result of industrial action, everyone hopes that they will secure other employment, preferably in the occupations for which they are trained, but in the process many of them may suffer a severe loss of earnings which could seriously affect their livelihood. I do not like to give concrete instances, but I indicated the sort of thing that could happen if there were, for example, a stoppage in a particular company of the motor industry, where a prolonged stoppage might mean a severe and permanent loss of business and a cutting down of staff, possibly at another level of employment, because, as we all know, a small body of men can hold up an industry of this kind and affect the earnings of a great many.

As I understand the Amendment, the Court would be debarred from considering this possibility when deciding whether there was a case for a strike ballot order, on the grounds that the only certain and immediate result of the industrial action for the workers was substantial and prolonged loss of remuneration. I do not pretend that the circumstances to which this subsection will apply will always be easy for the Court to determine. It simply will have to decide on the evidence submitted to it by the Secretary of State and the other parties. But this Amendment seems likely to make the task of the Court even more difficult than it is now. I feel certain that it is better to leave the clause as it is, and I hope that the noble Lord will be good enough to withdraw his Amendment.


My Lords, I am grateful to the noble Lord but, if I may say so, the Amendment is not quite as bad as he thinks and I should like to point out why. What the clause would provide is that the mere fact that the workers lose remuneration shall not by itself enable the conclusion to be drawn that the effects of the industrial action are likely to be seriously injurious to their livelihood. In this draft the critical words are"by reason only of the fact "; in other words, those who seek to establish that the industrial action is likely to be seriously injurious must go on and show something in addition to the fact that the workers will suffer substantial loss of remuneration. For example, they might show that the action went so far as to imperil the future of the undertaking in which they were engaged. That would be quite a different thing and I dare say it would well come within the scope of the phrase"seriously injurious ". In defence of my drafting, may I emphasise that the mere loss of remuneration by itself is not enough. But my endeavour obviously does not commend itself to the noble Lord any more than my last endeavour. It is a matter of judgment, and in these circumstances I do not think it would be a useful exercise to prolong the argument. I should be grateful if the House would give me leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.12 p.m.

LORD DIAMOND moved Amendment No. 92B: Page 104, line 8, after (" union ") insert (" organisation of workers ").

The noble Lord said: May I, on behalf of my noble friends, move this Amendment and seek your Lordships' lenience if I deal with the matter very shortly, since our debating time has been so curtailed, even though for good reasons. We are dealing here with a clause which describes the circumstances under which the Secretary of State can apply for a compulsory ballot. Subsection (4) says that before he applies he shall, so far as appears practicable, consult every employer, trade union or employers' association appearing to him to be a party to the dispute. I imagine the reason for that consultation would be a last-minute attempt to avoid the difficult step of seeking a compulsory ballot. When it gets to the hearing of the application for a compulsory ballot, all parties must be heard, but when it comes to consultation, as I have read out, your Lordships will have noted that trade unions only are to be consulted, not"trade unions and unregistered organisations ". It seems to me that where you are seeking by consultation to avoid difficulties you should consult everyone concerned. The employer has to be consulted, irrespective of whether he is a big or a little employer, registered or unregistered, or whatever he may be; and I should have thought, therefore, that it would have been sensible for all employees' associations to be consulted. In fact I am much encouraged to believe that the Amendment, which seeks to put this right by ensuring that everybody will be consulted, will find favour with the Government, because when this matter was discussed on Committee the noble Lord, Lord Drumalbyn, said that he was not certain why"trade union"was put in, and that the Government were prepared to look at it again. I trust that now he has done so he will be prepared to view this Amendment favourably. I beg to move.


My Lords, my noble friend Lord Drumalbyn has looked at the wording very carefully, but I regret to say not very favourably. The Secretary of State, we entirely agree, is clearly under an obligation to consult; and whilst this obligation is qualified by the phrase"so far as appears to him to be practical in the circumstances ", we do not feel that this phrase would in general nullify the mandatory effect of the clause unless it was physically impossible for the Secretary of State to contact the trade union or employers' association in the time available. I put that point because I know it was of interest at a previous stage, although it was not one made by the noble Lord, Lord Diamond, in his opening speech.

We are now dealing with a situation where industrial action is causing or likely to cause an industrial emergency, and any action which the Secretary of State is empowered to take to try to avert the situation clearly must be taken immediately. We feel that the Secretary of State would obviously be placed in an invidious position in these circumstances if he were given no discretion on consultation. I submit to the House that this discretion should not extend to consultation with unregistered unions. When this point was raised at the Committee stage, as Lord Diamond has said, my noble friend suggested as a first reaction that one of the difficulties about unregistered organisations of workers is that they may be merely temporary and it might be difficult to identify and consult with them. I do not think that the qualifying phrase"so far as appears to him to be practicable"entirely removes this difficulty. Not only may there be physical or administrative difficulties about consulting an unregistered union, but there may also be difficulties of policy.

As I have indicated, the term"organisation of workers"has been defined in the Bill as meaning any organisation whose objects include the regulation of relations between workers and employers, and they can range from very large organisations who for their own reasons simply do not wish to be registered, to very small, temporary organisations formed for a particular purpose, including possibly organisations which have broken away from a main body. In the situation of a serious industrial dispute there may be exceptional circumstances where it would be wrong for the Secretary of State to be required mandatorily to consult temporary organisations about a strike ballot proposal, although technically it would be possible for him to do so. Indeed, I would put it to your Lordships that other parties to the dispute, both employer and trade union, might have the greatest objection to such consultation taking place; and here I bear in mind advisedly a grave national dispute—this is what we are talking about—where a registered trade union might have the gravest reservations about the Secretary of State having to consult mandatorily with a break-away splinter union: this could be the gravest disservice to the registered organisation which properly represented the workers concerned.

Perhaps it may be of some reply to the noble Lord, Lord Diamond, if I finish by saying that we must remember that the purpose of requiring the Secretary of State to consult with the parties before applying for a strike ballot order is not only to seek their views about the proposal; it is also about the terms of any application to be made by the Secretary of State with a view to assisting the Court in deciding whether and in what terms the order ought to be made. The consultations are also a necessary preliminary to the effective conduct of a strike ballot. In this context there is nothing to prevent the Secretary of State from consulting quite voluntarily any organisation which seems to be party to the dispute—and the Secretary of State will have every incentive to do this voluntarily—to ensure that the ballot is held with the minimum of delay.

I come back to the original point, which is a familiar one. We have on this Amendment the reservations of policy which I have submitted to your Lordships. We also have the reservations of speed. We feel that in a national emergency situation speed is going to be of the essence, and a real difficulty will be placed on the Secretary of State if mandatorily he has, by the Bill, to consult with organisations which we entirely accept the Secretary of State may well consult with voluntarily in a situation of this kind.


My Lords, I find that a totally unsatisfactory reply, both in logic and in terms of policy. It does not help for barrow loads of dust to be thrown into our eyes in an attempt to put us off the logic of the case. It is as simple as can be. What we are concerned with is consulting everybody. The noble Lord has said that there is too much of a responsibility, and delays will be caused, but the clause says that every employer has to be consulted. Why does not the noble Lord bring an Amendment forward saying"Consult most employers "? That would save time. But the clause says, consult every employer, trade union or employers' association ". If the noble Lord says that the difficulty is finding time to do all this why does not he alter his own clause? If he is in difficulty about the practicability of doing so and says that the words do not protect the Secretary of State, with which I totally disagree, the words which are already here which say so far as appears to him to be practicable in the circumstances, give complete discretion in saying what is practicable. If the noble Lord says to me that that does not cover the Secretary of State sufficiently so far as practicability is concerned, why does he not bring an Amendment forward strengthening the words in whatever way he wants? Why bring all these totally irrelevant arguments forward when what we are considering is not whether it is every person but whether a particular category is to be withdrawn from consultation. It will not be a splinter union, it will be the majority, and the biggest unions. If the noble Lord says that the Secretary of State will have difficulty, for example, in finding out how to contact the Transport and General Workers' Union we will tell him what the address is, and where it is to be found. We will do everything that we can to assist.

It is sheer nonsense to say that his argument is based on the kind of statements that he has made to us. What he is doing is refusing to allow consultation to a particular category of trade unions. We are going to have two classes of citizens and two classes of trade unions: the trade union which is registered shall be consulted, and the one which is not registered, irrespective of however big it is, irrespective of the fact that it may be the only trade union involved, is not going to be consulted. If the noble Lord has nothing better to say than that we will divide the House.

6.25 p.m.

On Question, Whether the said Amendment (No. 92B) shall be agreed to?

Addison, V. George-Brown, L. Peddie, L.
Archibald, L. Greenwood of Rossendale, L. Popplcwell, L.
Ardwick, L. Hall, V. Raglan, L.
Bernstein, L. Henderson, L. Ritchie-Calder, L.
Beswick, L. Hilton of Upton, L. [Teller.] Segal, L.
Brockway, L. Hoy, L. Shackleton, L.
Buckinghamshire, E. Hughes, L. Shinwell, L.
Champion, L. Janner, L. Slater, L.
Chorley, L. Kilbracken, L. Sorensen, L.
Davies of Leek, L. Leatherland, L. Stonham, L.
Diamond, L. Lindgren, L. Stow Hill, L.
Evans of Hungershall, L. Lloyd of Hampstead, L. Taylor of Mansfield, L.
Gaitskell, Bs. Maelor, L. Walston, L.
Gardiner, L. Norwich, V. Wells-Pestell, L.
Garnsworthy, L. Pargiter, L. Wheatley, L. [Teller.]
Ailwyn, L. Derwent, L. Margadale, L.
Albemarle, E. Digby, L. Massereene and Ferrard, V.
Alport, L. Drumalbyn, L. Milverton, L.
Amory, V. Dundee, E. Molson, L.
Balerno, L. Ebbisham, L. Monck, V.
Barnby, L. Elliot of Harwood, Bs. Monckton of Brenchley, V
Belhaven and Stenton, L. Essex, E. Mountevans, L.
Belstead, L. Falkland, V. Mowbray and Stourton, L.
Berkeley, Bs. Ferrers, E. Napier and Ettrick, L.
Bessborough, E. Ferrier, L. Netherthorpe, L.
Bledisloe, V. Fortescue, E. Northchurch, Bs.
Boston, L. Fraser of Lonsdale, L. Nugent of Guildford, L.
Braye, L. Gage, V. Oakshott, L.
Bridgeman, V. Goschen. V. [Teller.] O'Neill of the Maine, L.
Brooke of Cumnor, L. Gowrie, E. [Teller.] Ranfurly, E.
Brooke of Ystradfellte, Bs. Gridley, L. Rankeillour, L.
Brougham and Vaux, L. Grimston of Westbury, L. Redcliffe-Maud, L.
Burton, L. Hailes, L. Rochdale, V.
Byers, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) Rothermere, V.
Carnock, L. Rothes, E.
Chesham, L. Hastings, L. Ruthven of Freeland, Ly.
Clifford of Chudleigh, L. Hatherton, L. St. Aldwyn, E.
Clwyd, L. Henley, L. St. Just, L.
Coleraine, L. Hives, L. Sandford, L.
Coleridge, L. Hood, V. Selkirk, E.
Colgrain, L. Howe, E. Somers, L.
Colville of Culross, V. Hylton-Foster, Bs. Strang, L.
Courtown, E. Jellicoe, E. (L. Privy Seal.) Strange, L.
Craigavon, V. Kemsley, V. Strathclyde, L.
Cranbrook, E. Killearn, L. Teviot, L.
Crathorne, L. Kilmany, L. Tweedsmuir of Belhelvie, Bs.
Croft, L. Lauderdale, E. Vivian, L.
Cromartie, E. Long, V. Wakefield of Kendal, L.
Daventry, V. MacAndrew, L. Ward of Witley, V.
de Clifford, L. Macleod of Borve, Bs. Windlesham, L.
Denham, L. Macpherson of Drumochter, L. Wise, L.

Clause 142 [Order of Industrial Court on application under s. 14]:

6.32 p.m.

LORD HUGHES moved Amendment No. 92C: Page 104, line 13, after (" sufficient ") insert (" reasons for doubting whether the workers

Their Lordships divided: 45; Not-Contents, 107.

involved would have had an adequate opportunity of indicating their wishes in respect of the industrial dispute and that there are sufficient ").

The noble Lord said: My Lords, before the Secretary of State can make an application to the Court under the terms of Clause 141 for an order for a ballot and a standstill he has to be satisfied that a strike or industrial action short of a strike is taking place or is contemplated; that such action would constitute an emergency or would be seriously injurious to a substantial number of workers employed in the industry, or that both of those conditions exist, and that there are reasons for doubting whether the workers involved have had an adequate opportunity of indicating their wishes in connection with the actual or proposed industrial action. On receipt of an application, the Court has to satisfy itself that the first two of those sets of conditions exist. But this independent body, the Court, is not to inquire into the third; namely, whether there are reasons for doubting whether the workers involved have had an adequate opportunity of indicating their wishes in the matter.

If I understand the purpose of the Court in this, as in so many other instances in which the courts of the land have a function, it is to provide a possible check on the Executive. But in this procedure the Secretary of State may act as he pleases and the Court has no say. As I understand Clause 141, even though it is certain that conditions 1 and 2 exist, the Secretary of State could still not apply to the Court for an order leading to a ballot and a standstill unless he felt that there were reasons for doubting whether the workers concerned have had an opportunity of indicating their wishes in the matter. It seems to me that this indicates that the key to the whole operation is the doubt about the wishes of the workers, and yet the Court, which must take a decision, is not to be able to inquire into whether there are valid reasons for that doubt. The Court will therefore be expected to make an order for a ballot to clear up a doubt the existence of which they must take for granted.

When this matter was discussed on"clause stand part," in the Committee stage, the noble Lord, Lord Drumalbyn, said, at column 317 of the OFFICIAL REPORT, on June 9: The trouble about asking the Court to decide whether the Secretary of State is right to have doubts or not is that it is very difficult to prove a matter of this kind in a Court. I do not think that that is the case at all. We are not asking that what is in the mind of the Secretary of State should be proved. What the Court has a right to look at is whether or not there is doubt about whether the workers' wishes have been ascertained.

One of the parties appearing before the Court will undoubtedly be those representing the workers—the trade union or organisation of workers, or the officials of such an organisation named in the application. Is it seriously contended that the Court, after having heard the Secretary of State express his reason for this doubt, could not by questioning the other party establish whether there exists a valid reason for the doubts of the Secretary of State? I am bound to say that it seems to us on this side of your Lordships' House to be quite unreasonable to accept that what the Court must take is the say-so of the Minister. It is a doctrine which we find completely objectionable. I do not think I need to make a long speech to make it clear that we think that the Government, in the Bill as it stands, are depriving the Court of the opportunity of looking at all three sets of factors, when the key one is this question of doubt. My Lords, I beg to move.

6.37 p.m.


My Lords, as Clause 142 is now drafted its purpose is to require the Court to satisfy itself that the Secretary of State has good grounds for believing that an emergency situation in fact exists or is likely to occur as the result of the industrial action. This is a justiciable issue. What we cannot accept is that in an emergency situation the question whether the workers involved have had an adequate opportunity to express their views should be justiciable by the Court. It is well to record—I believe I said this on the Committee stage—that one must bear in mind, as my noble friend Lord Belstead has said, that in a situation such as this the Secretary of State's conciliation officers will have been in very close touch, but essentially this must be a question of"feel"more than anything else.

In our view, the judgment on this point is something for which the Secretary of State must take full responsibility, just as he must take full responsibility for deciding in an application for a restraint order under Clause 138, whether deferment of industrial action would be conducive to the settlement of industrial dispute by further negotiation. This is the kind of question he must decide; it is the same kind of issue. Decisions as to whether or not the Government should intervene in a major industrial dispute have to be taken constantly by the Secretary of State, and the extent of support for a particular course of industrial action is one of the questions he has to take into account when reaching his decision.

In our view, it is right that the Secretary of State should have to answer for his judgment if he forms the view that workers do not support a strike and have had inadequate opportunity to express their opinions. He is not at all likely to apply for a strike ballot order in circumstances where there is a strong possibility that a strike will be fully supported by the workers, for the very good reason that he would look silly. The result of the ballot would merely indicate the extent of his misjudgment. If this Amendment were accepted, the Secretary of State would be able to transfer to the Court the responsibility for deciding whether workers had had an adequate opportunity to express their opinions about a strike in which they were involved. This would be a most difficult task for the Court, particularly as the Secretary of State would still retain responsibility for deciding the extent of support for the industrial action—because there are the two limbs here, although the noble Lord has referred to only one in this Amendment—and we doubt whether, in reality, the two decisions can be separated in this way.

What I am saying is that, given the pressure of an emergency situation, particularly the time factor, we think that the transfer of this responsibility may put the Court in an impossible situation. Views as to the adequacy, or otherwise, of the steps taken to consult the workers concerned about whether or not they wish to take industrial action are bound to be highly controversial; much more so, I suggest, than may often be the case about the extent of an emergency situation. They are speculative, if you like; it is a question of"feel ". The Court would have to deal with much detailed evidence from the two parties concerned—and this is the sort of matter which would involve a great deal of evidence—and could hardly be expected to give the speedy decision which the emergency requires and which is essential to the operation of these emergency procedures as a whole. So I hope that the noble Lord will not proceed with this Amendment.


My Lords, in the course of his remarks, the noble Lord, Lord Drumalbyn, said that in certain circumstances the Minister would look silly. That is the part of his remarks with which I find myself in agreement. The one point about which I am quite certain is that on many occasions, as a result of this Bill, the Minister is undoubtedly not only going to look silly, but in fact is going to be silly—at least, in his course of action. I do not want to divide on this Amendment, but this is another of those matters on which we very strongly hold a different view from that expressed by noble Lords on the other side. Having listened to what the noble Lord, Lord Drumalbyn, has said and to what the noble Lord, Lord Belstead, said on the previous Amendment, all I would say is that I wish those who wrote the lines, the playwrights, were as good as those who deliver them. The delivery is far in excess of the quality of the material.

On Question, Amendment negatived.

Clause 143 [Provisions pending result of ballot ordered under s. 142]:

LORD STOW HILL moved Amendment No. 92X: Page 105, line 2, leave out (" shall ") and insert (" may ")

The noble Lord said: My Lords, if the Court decides to make an order, Clause 143, as at present worded, makes it obligatory for the Court to give a direction as part of its order that from the date of the order the strike is to stop. This Amendment would substitute a discretion for the obligatory quality of Clause 143. In other words, if the Court makes an order it will have a discretionary power to say that the strike is to stop as from the date when the order is made, but it is not bound to do so. The argument is that there is really no reason why a ballot could not perfectly well take place, even although a strike is still in progress. It would be less provocative if the Court did not make an order that while a ballot was taking place the strike was to stop. That is the case for the Amendment. My Lords, I beg to move.


My Lords, this is a point which we discussed during the Committee stage. The view that I expressed at that time, and which I still hold, is that it is essential that in circumstances of this kind the strike action should come to an end or be deferred, as the case may be, because it is of the essence of this kind of emergency procedure that the status quo ante should be restored. For one thing we believe that the ballot would be very much facilitated if it could be taken when everyone was back at work, or before they had gone on strike. If a strike was allowed to continue in progress, the likelihood is that embitterment would increase, and we think that the right course is to bring people back in order that the ballot could be held. Side by side with that, conciliation could go on all the time, and one would hope that, as a combined result, one would achieve a good outcome. But we do not think this should be optional and we see no point in substituting"may"for"shall"here.


My Lords, this is a matter of judgment on which I am afraid we shall have to continue to disagree. But I do not think it would serve any purpose to prolong the argument, so I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.48 p.m.

LORD STOW HILL moved Amendment No. 92Y: Page 105, line 3, after (" that ") insert (" if the result of the ballot indicates that the majority of the workers who are taking part or are expected to take part in the strike or other industrial action are or would be taking part in it against their wishes, for a period not exceeding sixty days beginning with the date on which the result of the ballot is reported to the Court.")

The noble Lord said: My Lords, this is an Amendment of rather more substance, but I will move it as shortly as I can. As I said on the last Amendment, Clause 143, as at present worded, requires the Court, if it makes an order, to direct that a strike is to stop while a ballot is being held. One does not know how long it will take to hold the ballot. In a given situation, it might take quite a period of time. So that what the Court is really required to do, if it decides to make an order, is to direct that for an indeterminate time the workers are not to continue the strike. I am conscious that the order is not made against those who participate in the strike; it is made against those who, as officials, organise it. It would be a grievous sin if I repeated what the House has heard from me ad nauseam about embittered feelings and tempers running high, and I hope that that is the one sin of which I may ultimately be found to be innocent. But I submit that it would be a more practical arrangement if the change embodied in the Amendment were made. Instead of the Court's having, as at present, to order that during the period beginning with the date on which the order takes effect the strike is to stop, a changed arrangement is introduced by the Amendment as follows.

If the result of the ballot indicates that the majority of the workers are against continuing the strike, then, as from the date the result of the ballot is reported to the Court, the strike has to stop for a period not exceeding 60 days. That period of 60 days is a counterpart to the 60 days provided for in Clauses 138 onwards; and it is submitted that it is a perfectly workable arrangement that the strike can go on while the ballot is being taken, but that if the ballot result, when reported, indicates that the majority of the strikers are not in sympathy with the industrial action in question, then as from the date that the result of the ballot is reported the strike must stop for a period not exceeding 60 days. It is of course to be hoped that if the result of the ballot shows that the majority of the strikers are not in sympathy with it, then in any event it will come to an end; but if there is still some dissidence among the strikers at any rate the 60-day period—or, rather, the period not exceeding 60 days—will give ample time for accommodation to be reached between the dissident elements and for the strike to be brought to an end in that way. If I may summarise, instead of the strike having to stop while the ballot is being taken, it will have to stop for a period not exceeding 60 days as from the date when the result of the ballot is reported if the majority is shown to be out of sympathy with the strike. My Lords, I beg to move.


My Lords, the effect of this Amendment has been explained to us in full by the noble Lord, Lord Stow Hill, and I am bound to say, without wishing to be discourteous, that it is something which we feel cuts across the fundamentals, almost, of this clause, and of the conception of this Part of the Bill. As I understood the noble Lord, the effect of the Amendment is that there would be no restraint placed on the organisers of industrial action until the ballot had been completed. Therefore, a ballot could be held while a strike which was giving rise to a national emergency was in progress, and it is this which we on this side of the House feel vitiates the whole purpose of having the strike ballot procedure at all. I felt that I ought to make this clear at the outset. By the time the ballot was completed, there might be no prospect at all of averting the most desperate situation; and if the ballot was a major one (and this has been the subject of discussion in your Lordships' House before) it might take a few weeks to hold the ballot.

There is a further point which I think is a worry here. The effect of this Amendment would also be that the result of the ballot would be the only factor providing grounds for a restraint order, if I have understood the noble Lord correctly. That restraint, up to the 60 days as set out in the Amendment, would be purely restrictive, if I may put it that way, and would not be, as under the proposals of the Bill, if one takes this part of the Bill in the round, applied for some express purpose, either for further negotiations or for the holding of a strike ballot. I really do not know, on looking at the Amendment, on what grounds the Court could decide what the period of the restraint should be under these proposals. Since the result of a ballot must show that a majority of the workers involved in the dispute, and not just those voting, must be opposed to industrial action before the organisers can be restrained by the Court, the ballot takes on an entirely different character and significance compared to the ballot proposed in the Bill as it is framed at the moment. It is because the purpose of the strike ballot provisions in this Part of the Bill are simply to ensure that where industrial action is likely to have serious consequences for the community, organisation of that action should be restrained—it is for that simple reason—and because the noble Lord's Amendment would mean turning this principle entirely on its head and making the restraint the subject of the ballot, that I must ask your Lordships to resist the Amendment.


My Lords, I do not quite agree with what the noble Lord says. After all, the main purpose of these two clauses is to try to find out in a rather critical situation whether or not the strikers wish to strike. I have submitted previously that if, suddenly, you order—I do not say the strikers to go back, but the organisers of the strike to stop, you are engaging upon provocative action which may result in challenge to the order of the Court and in the strike leaders becoming martyrs, heroes and all the rest of it. And that may conduce to an opposite result to bringing an immediate cessation to the industrial action. That is the point I made. It may be right or it may be wrong, but I submit that it is not obviously wrong by a long way. Again, I feel tempted to commit the sin to which I referred. But if one envisages a situation of that sort, for the Court to order the strike to stop would, I should have thought, be asking the Court to do something which would be construed as provocative to those engaged.

This Amendment suggests a rather different situation. The ballot is ordered, and it takes place. In any event, one does not know how long it is going to take, so the observations of the noble Lord about the indeterminate nature of the lack of restraint apply whatever arrangement is embodied in the clause: that is common ground to both. But what the change would bring about is to say that if the ballot achieves its purpose and shows that the majority are against the strike, then it must stop, and in those circumstances it would not be provocative to order the organisers to stop it. That would be acceptable. The noble Lord said he did not quite know how long, within the outside period of 60 days, a Court was likely to order the organiser to stop organising a strike. If I were a judge and I found there was a large majority against the strike, I should say the full 60 days, in the confident expectation that in that period the dispute would reach an accommodation and one would hear no more about it. If the majority was only very slight, what I might well do if I were a judge would be to choose a much lesser period in the hope that during that lesser period the parties might get together and reach terms. That, I should have thought, would be the situation which would emerge. But I have put the point; my proposal does not commend itself to the Government, and I do not think there is any great point in pressing it. Therefore, having put the point and the arguments and counter-arguments having been heard, I ask the permission of the House to withdraw the Amendment.

Amendment, by leave, withdrawn.

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