INDUSTRIAL RELATIONS BILL

HL Deb 14 July 1971 vol 322 cc437-86

8.0 p.m.

Consideration on Report resumed.

Clause 144 [Conduct of Ballot]:

LORD HOY moved Amendment No. 92E: Page 107, line 11, at end insert (" or for any subsequent ballot arising out of the order of the Industrial Court under section 142 of this Act in consequence of a doubt as to the wishes of the workers in respect of any settlement arrived at on their behalf.")

The noble Lord said: My Lords, I hesitate to bring this great progress to an end but, having made my contribution, I should like on behalf of my noble friends to move Amendment No. 92E. Clause 144 sets out the procedure to be followed where the Court has ordered that a ballot be taken and the Commission makes the arrangements. In certain conditions the Commission may request a trade union which is a party to the dispute to conduct a ballot of its members itself. If the Commission so decides and the union does make itself responsible for conducting a ballot and carries it out, the Bill says, in subsection (5), that the Commission shall pay to a trade union the amount of any expenses reasonably incurred in so acting. This is as it should be. But a point arises in connection with a second ballot conducted by the union arising out of the result of the first ballot. The point is, ought not the Commission to be empowered in such circumstances to pay the expenses reasonably incurred by the union in conducting a second ballot?

The attention of your Lordships' House was drawn to this matter by my noble friend Lord Collison, who did it so admirably that I do not think I can put it more succinctly and better than by simply repeating his words. The noble Lord was a member of the Donovan Commission, and, as your Lordships know, he is an ex-general secretary of a very important union in this country, so his words and opinions do carry some weight. On June 9 my noble friend said: If the Secretary of State is in doubt and requires a ballot, and a ballot is decided upon by the Industrial Court, it could well happen that the majority of workpeople concerned would vote for the strike. The strike would then continue, and the union would negotiate with the employer with a view to reaching a settlement…which they would want to recommend to their people."—[OFFICIAL REPORT, 9/7/71, col. 330.] A little later my noble friend said (col. 334): If a ballot is demanded by what the trade union people will see as State intervention. I think they will equally well demand, and with justification, that, before they accept their union's decision as to the acceptance of a settlement which some of them may not like, there should be a further ballot…. Obviously, the question as to who pays for the ballot comes into this. The question, then, is who pays for the second ballot, and it is because that question ought to be answered that this Amendment has been put down. I think it ought to be clearly stated that the Commission should be empowered to pay for the second ballot, and I hope that this will be the view of the Government. I beg to move.

LORD BELSTEAD

My Lords, as the noble Lord, Lord Hoy, has told the House, my noble friend Lord Drumalbyn undertook, at the time the noble Lord, Lord Collison, made his speech at the previous stage of the Bill, to give this matter further consideration. As my noble friend mentioned during an earlier discussion on this clause, and subsection (7) of Clause 143, it is in fact technically impossible to have a second ballot to determine support for continued industrial action. The situation is that the Court is not able to entertain any application for a second ballot because of Clause 143(7), and this Amendment would, therefore, be incompatible with the previous clause. So that the noble Lords should not feel that I am simply shielding myself behind a technicality in this matter, perhaps I should be a little stronger in my remarks and emphasise that the whole purpose of the strike ballot order is to give the workers involved an opportunity to express their views about support for an industrial action likely to cause an emergency situation. It is for this reason that, as the Bill is drawn at the moment, the order does not, and cannot, place any requirement upon the parties once the result of the ballot is known. If the union wishes to hold its own ballot on a return to work (which was the point raised by the noble Lord, Lord Collison) it is at perfect liberty, of course, to do so; but in those circumstances the cost of such a ballot ought, we feel, to be met by the union itself, since there is nothing in the strike ballot provisions imposing any obligation in this respect, and any pressure by elements in the union for such a ballot would be a matter for the union to deal with in accordance with its own policy and rules.

May I say, in conclusion, in case my remarks sound unduly uncompromising, that we are dealing here with a situation in which there will have been a vote to do something which the members apparently wish to do: that is to return to work. Therefore I do not know that there is as much between the two sides of the House on this point as may appear from the speech of the noble Lord, Lord Hoy, and the speech I have made from this side. I feel that where people have taken a vote on the line of action they wish to take, to place on the Court a mandatory duty to pay for a further ballot, presumably to carry the line of action the workers are already wishing to take to its logical conclusion—namely, to return to work—is asking a bit much;

and for that reason we must resist this Amendment.

LORD HOY

My Lords, I must say that the reply is exceedingly disappointing. The noble Lord has not made out a case at all, and has so far misinterpreted the case I made. What I was saying was that it was likely that the Commission would say to the trade union,"All your members have to be consulted, and as a consequence we place upon you the responsibility of holding a ballot ". The noble Lord agrees with that. The workers then decide to strike, so that the strike is quite legal and valid; it is done by ballot. After the strike has started, the trade union and the employers then enter into negotiations on terms. It may well be that the trade union will then want to recommend those terms to its members. Some members may object and may say,"If you are in fact recommending this as a result of your first ballot which put us on strike, we are going to challenge this decision made by you, the union leader ". As a consequence of that, a ballot might be necessary. This ballot arises as a result of the first decision, and so we are saying—and I thought it was quite a modest request to make—that if the second ballot is a consequence of the first ballot, at least the union ought not to be asked to bear the expense of it. The union has done its part in this job. It has got what it regards as a reasonable settlement, and it wants its action to be homologated, and it can be done by ballot.

I should have thought that under these circumstances (and if this Bill is supposed to promote good industrial relations at all) this is a sample of those good industrial relations. All I can say is that if the Government have no more to say on it than that, then I dread to think what is going to happen in the working of this particular Bill.

8.12 p.m.

On Question, Whether the said Amendment (92E) shall be agreed to?

Their Lordships divided: Contents, 31; Not-Contents, 78.

Greenwood of Rossendale, L.	Milner of Leeds, L. [Teller.]	Shackleton, L.
Henderson, L.	Platt, L.	Slater, L.
Henley, L.	Popplewell, L.	Stow Hill, L.
Hoy, L.	Raglan, L.	Taylor of Mansfield, L.
Janner, L.	Ritchie-Calder, L.	Wells-Pestell, L.
Lindgren, L.	Segal, L.	White, Bs.
Lloyd of Hampstead, L.
NOT-CONTENTS
Aberdare, L.	Ebbisham, L.	Mountevans, L.
Ailwyn, L.	Essex, E.	Mowbray and Stourton, L.
Albemarle, E.	Falkland, V.	Napier and Eftrick, L.
Balerno, L.	Ferrers, E.	Northchurch, Bs.
Belhaven and Stenton, L.	Fortescue, E.	Nugent of Guildford, L.
Belstead, L.	Geddes, L.	O'Neill of the Maine, L.
Berkeley, Bs.	Goschen, V. [Teller.]	Orr-Ewing, L.
Boston, L.	Gowrie, E.	Rankeillour, L.
Braye, L.	Gray, L.	Rochdale, V.
Brecon, L.	Gridley, L.	Ruthven of Freeland, Ly.
Brentford, V.	Grimston of Westbury, L.	St. Aldwyn, E.
Bridgeman, V.	Hailsham of Saint Marylebone, L. (L. Chancellor.)	St. Just, L.
Brooke of Cumnor, L.		Sinclair of Cleeve, L.
Brooke of Ystradfellte, Bs.	Hanworth, V.	Somers, L.
Burnham, L.	Harcourt, V.	Strange, L.
Burton, L.	Hastings, L.	Strange of Knokin, Bs.
Colville of Culross, V.	Hatherton, L.	Strathclyde, L.
Courtown, E.	Hives, L.	Suffield, L.
Craigavon, V.	Hylton-Foster, Bs.	Teviot, L.
Cranbrook, E.	Inglewood, L.	Teynham, L.
Cromartie, E.	Kemsley, V.	Tweedsmuir, L.
Daventry, V.	Killearn, L.	Tweedsmuir of Belhelvie, Bs.
de Clifford, L.	Latymer, L.	Vivian, L.
De L'Isle, V.	Long, V.	Wakefield of Kendal, L.
Denham, L. [Teller.]	Milverton, L.	Ward of Whitby, V.
Digby, L.	Monck, V.	Windlesham, L.
Drumalbyn, L.

Resolved in the negative, and Amendment disagreed to accordingly.

Clause 147 [Effect of strike notice]:

8.19 p.m.

LORD DIAMOND moved Amendment No. 93K: Page 109, line 32, leave out subsection (4).

The noble Lord said: My Lords, subsection (4) is that part of the clause dealing with the effect of a strike notice. The clause starts off by saying—and it is a very important statement—that a strike notice shall not be construed as a notice to terminate the contract of employment, or as a repudiation of that contract. I should probably be right in saying that this is the first time that the task of defining a strike has been attempted. It is a very important statement indeed. One wants it to be clear and not to be confused by any subsequent unclear statement in the same clause. Unfortunately I think subsection (4), which the Amendment seeks to remove, is such an unclear and confusing statement. It says: Nothing in subsection (2) of this section shall be taken to exclude or restrict any right which an employer would have apart from that subsection to dismiss…an employee who takes part in a strike.

My Lords, I recognise that there are two different actions. One is the giving of a notice to strike by the employee, and the other, which is in subsection (4), is the giving by an employer of a dismissal notice to the employee. The reason I am raising this point is because this subsection is almost an invitation to an employer to take the view that it would be right for him to dismiss an employee who has given a strike notice. Why do I say that? Because there is no other purpose in putting the subsection there. I am reinforced in making that statement by the discussion we had in Committee when, on June 9, as reported at column 359, the noble Lord, Lord Windlesham, who was replying to an Amendment which I had moved on this issue, said: …as a corollary to the right of the employee to say he refuses to work, we have the right of the employer to terminate his employment. This is the present situation. It is not affected by the Bill.

As I understand that statement and the rest of what the noble Lord said, this subsection (4) has no effect; it may be declaratory but it has no effect. If I am right, and I think I am, in saying that it has no effect, I mean that it has no legal effect, but it has an emotional effect. It is a highly provocative subsection. The right to strike and to avoid a repudiation of a contract of employment by giving appropriate notice to strike is a very important right and one does not want it confused in any way or any part of it to be withdrawn. I therefore think it would be far safer, and certainly far less provocative, and, if I understand it aright, would not affect the legal provisions of the rest of the clause, if subsection (4) were removed, as the Amendment seeks to do. I therefore beg to move the Amendment.

8.26 p.m.

THE LORD CHANCELLOR

My Lords, this Amendment, or its equivalent, was thoroughly discussed in Commitee. This Bill makes a number of changes in the law, but two changes it does not make. The first is that it does not make a strike illegal and the second is that it does not alter the employer's right to terminate a contract of employment during or after a strike, provided it is not discriminatory within the meaning of the clause we have been discussing. Subsection (4), which is alleged to be discriminatory, only preserves the status quo. Clause 147, of which it is part, makes clear a branch of the law which has always been open to contest and has been, I think, argued about by many erudite legal authorities, but subsection (2) of Clause 147 makes it clear that where an employee takes part in a strike after due notice has been given, his action is not to be regarded as a breach of a contract of employment, either for the purposes of any proceedings in contract brought against the employer or in respect of any proceedings in tort, whether brought against the employee or any other person, or for the purposes of Section 5 of the Contracts of Employment Act 1963, which we discussed in Committee, or Section 96 of the Act, which is the section dealing with inducement to break a contract of employment. So, whether or not that was the law before—and that might be the subject of argument—the employee is protected, and for certain purposes third parties are protected, in respect of the classes of case which are set out in subsection (2) of Clause 147.

The effect of enacting subsection (2) would of course inevitably raise the issue one way or the other whether that enactment abridged the right of the employer to dismiss. The general policy of the Bill is that, subject to the provisions of the Bill, the right to strike remains and, subject to the provisions of the Bill, the right of an employer to dismiss remains. That is safeguarded by subsection (4). I do not myself see what is provocative about that, because it only pretends to maintain an existing state of affairs and there is in fact no limitation either on the employee to strike under subsection (2) or on the employer to dismiss under subsection (4). If it were true, as the noble Lord, Lord Diamond, says, that subsection (4) constituted an invitation to the employer to dismiss, it would equally be true—although of course it is not—that under subsection (2) there was an invitation to the employee to strike. The truth is that neither is the case.

The purpose of the subsection sought to be left out is simply to maintain the status quo and to dispose of many of the legal doubts between the two parties to a dispute. Of course it is true that in 99 cases out of 100 questions of so-called victimisation on either side and actions by the employee and by the employer are settled as part of the settlement, and it is proper that it should be so. If they are settled as part of the settlement, as part of a no victimisation clause, the Bill has nothing to say to an agreement of that kind: and I have nothing to say, except that if they want to settle a dispute it is a very wise course for both parties to take to say that there should be no more dispute about it. If in the rare minority of cases it is not settled, then the right of the employee to strike is preserved and the right of the employer to dismiss is preserved, subject to the other provisions in the Act. For these reasons, I see no reason to diverge from the opinion expressed by one of my noble friends—I am not sure who it was; I think it was the noble Lord, Lord Windlesham—who dealt with the matter on Committee. I see no reason to alter the opinion of the Government in any way, and for this reason the Amendment should be resisted.

LORD SLATER

My Lords, may I ask the noble and learned Lord the Lord Chancellor a question?

THE LORD CHANCELLOR

Of Course.

LORD SLATER

The noble and learned Lord referred to the status quo and he repeated that two or three times. We have knowledge of that term and we know that where we have had strikes—as the noble and learned Lord will be aware—we have had victimisation. People have been victimised because of their action in striking and they have not been able to find employment, either with the original company or with any other company which may have been an associate or subsidiary of the parent company.

THE LORD CHANCELLOR

My Lords, I am not absolutely sure what is the question which I am supposed to answer, but the answer to it, if I can divine what was in the noble Lord's mind, is that after the end of a strike it is wise to include a no victimisation clause: wise from the point of view of both parties. This situation arises only if such a clause is not included; and all it says is that this Bill is not to alter the existing law except to the extent that it is altered in favour of the workman by subsection (2).

LORD DIAMOND

My Lords, I am grateful to the noble and learned Lord the Lord Chancellor for what he has said; but, with the greatest respect, I must say that he has confirmed my anxiety. It is not an enormous anxiety but it is an anxiety. May I indulge the noble and learned Lord's usual patience to explain it? The noble and learned Lord based his case on the fact that the corollary to the re-statement of the law in subsection (2) was the re-statement of the law in subsection (4). He did not say that this altered the law. On the contrary, he said that it re-stated the law and he confirmed what was said by his noble friend Lord Windlesham. The noble Lord, Lord Windlesham, said: …we have the right of the employer to terminate his employment. This is the present situation. It is not affected by the Bill "—[OFFICIAL REPORT, 9/6/71; col. 359.] My Lords, there is not a clear balance, as the noble and learned Lord indicated. Because subsection (2) either alters the law or makes clear what the noble and learned Lord said had on many occasions been in doubt; that is to say, some people must have thought that the law said a particular thing which subsection (2) now says that it does not mean. So subsection (2) is altering the law, at least in the view of some people.

There is, however, no parallel with subsection (4). In short, you have a reason for stating subsection (2); you have no reason for stating subsection (4), except the one that the noble and learned Lord adduced; namely, to give some balance and make clear that it is right to say this about the employee and it is right to say something else about the employer. It is because the noble and learned Lord has confirmed that subsection (4) does not alter the law that I find it difficult to see why it is necessary to put in a declaratory phrase repeating what is the law. If there is no reason for it in law, you are bound to look at the phrase and say,"Why is it put in? ". If it is put in a clause which is in other respects an acceptable clause—and the noble and learned Lord is right in saying that it is a clause which gives protection to the employee, the striker, on giving due notice—one is bound to construe it as an indication that Parliament thought that at the same time that it was giving something to the employee it was saying to the employer,"But don't you worry; if you want to strike back, you jolly well do so." I am not saying that is what the subsection means. I am saying it is tantamount to an invitation, and therefore, in my view, it is still a provocative statement.

The noble and learned Lord is not prepared to accept the Amendment to delete subsection (4). I am sorry about that. I think it will be of some help that what the noble and learned Lord said, with his great authority, will be on record for all to see; namely, that it does not alter the law; that it is not intended to be provocative; that it is not intended to be an invitation to the employer to do anything that he would not otherwise have thought of doing. All I can do, therefore, is rely on the record of what was said by the noble and learned Lord, and to ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

8.37 p.m.

LORD DIAMOND moved Amendment No. 93L: Page 109, line 36, leave out (" an ") and insert (" a single ").

The noble Lord said: I suggest that with this Amendment your Lordships consider Amendment No. 93M, as the two tie up together. This is an attempt, probably a very amateur one, to meet a real difficulty. This is a suggested Amendment at line 36 to subsection (5), which says: …' due notice ', in relation to an employee, means notice of a duration not less than that which…he would be required to give to terminate his contract of employment. That is a very common-sense concept, and my recollection is that it arises out of a rather famous law case which so decided. But a strike is essentially the withdrawal of labour by a group of people at one and the same time.

For practical purposes, the strikers are not those who happen all to be engaged on the same period of notice, but all who happen to be engaged in a particular workshop, or at a particular task, or in a particular factory—some geographical or occupational category, not a category defined by a period of notice to be found in their contract of employment. Therefore, this difficulty arises: that for workers to withdraw their labour effectively as strikers, they must all come out together. For workers to avoid the harm that comes through not giving due notice, they must give varying periods of notice if their contracts of employment are for varying periods of notice. Of course, one week's notice would be the average case; some would have a period of notice of less than one week and some more than one week. I suggest that one has to meet this difficulty if one is going to give any value to the relief which giving due notice provides without at the same time making nonsense of the right to strike.

Therefore the suggestion in these two Amendments is that, instead of the clause reading, as it does at the moment, …' due notice ', in relation to an employee, means notice…not less than that which…he would be required to give to terminate his contract of employment ", it should read:"' due notice ' in relation to a single employee"means what I have already read out, but the subsection would continue: but where a strike notice has been given by or on behalf of a number of employees, then ' due notice ' means one week's notice. One week's notice is, it seems to me, a fair average period. It will not necessarily be the exact notice period in all relevant contracts of employment, but it will be in most cases. In some cases, it will be a little longer than is necessary; in others, a little shorter than is necessary. But the essential point is that I cannot see any value in the"due notice"relief unless that notice is of such a kind that it can be properly given by every member of the group. No group, no strike. I therefore beg to move this Amendment.

8.42 p.m.

THE LORD CHANCELLOR

My Lords, we had a discussion about this point while we were arguing the matter in Committee, and the noble Lord put forward his case then in a little more detail. He said, and said truly, that in a factory there might be employees affected by a dispute, some of whom were on an hourly basis or a daily basis, some of whom were on a weekly basis and some of whom were on a fortnightly basis; and he said this would cause the organisers of the strike to have heart failure because they would not know which employees belonged to which category, and to give a series of different notices of varying length of time would cause a Government Department and a computer a long period of agony. My Lords, I replied and—I still believe that the reply had certain validity—that if they all gave a fortnight's notice they would be in order under the terms of this Bill, because under subsection (5), which this Amendment seeks to modify, the term is not that they must give the exact notice provided for in the individual contracts of employment but that the notice should not be less. All, therefore, that the organisers of the strike have to do in the given set of circumstances is to give the largest period of notice in respect of all the employees. I cannot myself see what difficulty, practically, that presents. It would certainly involve no use of any computer, only a little common sense.

LORD DIAMOND

My Lords, I am most grateful to the noble and learned Lord the Lord Chancellor. This is the argument he used on the last occasion, and I would therefore seek to show him that there is a very real practical difficulty, of such practicality that it virtually destroys the strike. I ask the noble and learned Lord the Lord Chancellor to envisage the case of a typical shop or factory where there are 100 workers on one week's notice going on strike, and there is one person employed in a clerical capacity, in the storeroom or something, in the same factory, and he is on two weeks' notice. What the noble and learned Lord is saying is:"There is no difficulty; let there be a fortnight's notice on behalf of 101 persons, in circumstances where they have decided to go on strike, and it is to be hoped that somebody can hold them for one week while one week's notice is expiring." But, my Lords, to hope that it would be possible to hold them for a fortnight when 100 people are on one week's notice and one person only is on two weeks' notice is, to my mind, to hope for the impossible. I would ask the noble and learned Lord to explain how one gets out of that practical difficulty.

THE LORD CHANCELLOR

My Lords, the noble Lord's ingenuity is so enormous that I should have thought it was unnecessary to ask the question. He can do it in one of two ways, but the simplest way would be to let the one man clerical worker go on working for an extra week; and I cannot see why that unduly interferes with the objects of the strike or causes even the stupidest shop steward a moment's anxiety. If, however, he wanted to be super-careful he would try to persuade them all to last out for two weeks. But neither course, I should have thought, presents insuperable difficulty. The first assumes that the workers are so enthusiastic for the strike that they cannot last out for two weeks, and the other one assumes that they have a little common sense. But both of them, I think, present no difficulties at all to an ingenious shop steward, still less to the noble Lord whose ingenuity has impressed the House increasingly as time has gone on. But the fact that I am put such a difficult conundrum on the Report stage of an important Bill only leads me to marvel at the purely imaginary difficulties which the noble Lord has been able to conjure up out of the vast recesses of his imagination.

My Lords, the other thing that needs to be said is that the employees have made a contract. Some people think contracts are only scraps of paper, or even scraps of air. I do not, curiously enough, take that line at all. I think that when an employer makes a contract with his workmen it ought to be kept because it is a promise, I think that when an employee makes a contract with his employer it ought to be kept because it is a promise. I just do not laugh off the theory with which the noble Lord does not seem to have really made intellectual contact, that people ought to keep their contracts, if the contract is that in one case they should keep a week's notice and in another case they should keep a fortnight's notice, my simple-minded doctrine—perhaps naïve, perhaps starry-eyed, perhaps unduly idealistic—is, none the less, that they should do what they have promised to do; and the noble Lord has never really explained why he wants them to do something else and something less than they have promised to do.

But the noble Lord really must catch on with the white heat of the technological revolution, if I may coin a phrase borrowed for the purpose from the Leader of his Party. Strikes are not confined to weekly wage-earners; they are not confined to monthly wage earners. I do not know what the average length of notice required in an airline pilot's contract is—I have not inquired. But I do know one thing: that they are paid approximately the same as the Lord Chancellor or a High Court Judge. No doubt they perform greater services: I am prepared to accept that. The Lord Chancellor is on a minute's notice, but I rather suspect that this would be considered by an airline pilot too short a period. I fancy that a week would be considered too short by an airline pilot, or by his employer, but under the noble Lord's Amendment the whole of an airline could be brought out on a week's notice. Of course this is absolute rubbish; let us face it.

LORD DIAMOND

My Lords, when the noble and learned Lord the Lord Chancellor said,"This is absolute rubbish; let us face it ", I could not have been in greater agreement. I am assuming, of course, that the"rubbish"he refers to is what he himself has just said. I assume that because nobody was talking about the airline pilots. I was talking about the law and the desire to adhere to the law; and about the difficulty that this clause poses—because this clause is about a strike and a strike notice, and for the first time is trying to set down what a strike is. We all know that the first element of a strike is that a group of people have to go out at the same time, otherwise it is not a strike. That is the problem we are facing.

I assumed, erroneously it seems, that the Government, who had been thinking like this in the interests of good industrial relations, were seeking to further good industrial relations. It has been made perfectly clear by the noble and learned Lord that nothing could be further from his mind, at all events, whether it is farther from the Government's mind or

CONTENTS
Ardwick, L.	Gaitskell, Bs.	Raglan, L.
Bernstein, L.	Gardiner, L.	Ritchie-Calder, L.
Blyton, L.	Garnsworthy, L. [Teller.]	Segal, L.
Brockway, L.	George-Brown, L.	Slater, L.
Buckinghamshire, E.	Greenwood of Rossendale, L.	Stonham, L.
Carnock, L.	Henderson, L.	Stow Hill, L.
Champion, L.	Hoy, L.	Tanlaw, L.
Cooper of Stockton Heath, L.	Janner, L.	Taylor of Mansfield, L.
Davies of Leek, L.	Lindgren, L.	Walston, L.
Delacourt-Smith, L.	Longford, E.	Wells-Pestell, L.
Diamond, L.	Milner of Leeds, L. [Teller.]	White, Bs.
Foot, L.	Popplewell, L.
NOT-CONTENTS
Aberdare, L.	Colville of Culross, V.	Gray, L.
Ailwyn, L.	Courtown, E.	Gridley, L.
Albemarle, E.	Craigavon, V.	Grimston of Westbury, L.
Amory, V.	Cranbrook, E.	Hacking, L.
Auckland, L.	Crathorne, L.	Hailes, L.
Balerno, L.	Cromartie, E.	Hailsham of Saint Marylebone, L. (L. Chancellor.)
Balfour, E.	Cullen of Ashbourne, L.
Balfour of Inchrye, L.	Daventry, V.	Hanworth, V.
Belhaven and Stenton, L.	de Clifford, L.	Harcourt, V.
Belstead, L.	De L'Isle, V.	Hastings, L.
Berkeley, Bs.	Denham, L.	Hatherton, L.
Bledisloe, V.	Digby, L.	Hives, L.
Boston, L.	Drumalbyn, L.	Hood, V.
Brabazon of Tara, L.	Ebbisham, L.	Hylton-Foster, Bs.
Braye, L.	Emmet of Amberley, Bs.	Inglewood, L.
Brecon, L.	Essex, E.	Kemsley, V.
Brentford, V.	Falkland, V.	Killearn, L.
Bridgeman, V.	Ferrers, E.	Kilmany, L.
Brooke of Cumnor, L.	Fortescue, E.	Lansdowne, M.
Brooke of Ystradfellte, Bs.	Geddes, L.	Latymer, L.
Burnham, L.	Goschen, V. [Teller.]	Long, V.
Burton, L.	Gowrie. E. [Teller.]	Macleod of Borve, Bs.

not. The reason why I suggest one week is because, according to the best of my recollection, when we last discussed this matter the noble and learned Lord himself said that in nearly every case the period of notice was one week. Therefore, I thought that the period of one week would fall on sympathetic ears. But it is perfectly obvious that far from it falling on sympathetic ears the noble and learned Lord sought to make a case for his self-entertainment. The noble and learned Lord has a difficult task to perform and he is entitled to entertainment of every kind he can possibly summon. What he is not entitled to do is to exacerbate industrial relations, and to have no intention of improving them; and because the noble and learned Lord has made that perfectly clear. I have no alternative but to divide the House.

8.52 p.m.

On Question. Whether the said Amendment (No. 93L) shall be agreed to?

Their Lordships divided: Contents, 35; Not-Contents, 91.

Macpherson of Drumochter, L.	Rochdale, V.	Teviot, L.
Milverton, L.	Ruthven of Freeland, Ly.	Teynham, L.
Mowbray and Stourton, L.	St. Aldwyn, E.	Tweedsmuir, L.
Napier and Ettrick, L.	St. Just, L.	Tweedsmuir of Belhelvie, Bs.
Northchurch, Bs.	Sempill, Ly.	Vivian, L.
Nugent of Guildford, L.	Sinclair of Cleve, L.	Wakefield of Kendal, L.
Oakshott, L.	Strange, L.	Ward of Witley, V.
O'Neill of the Maine, L.	Strathclyde, L.	Windlesham, L.
Rankeillour, L.	Suffield, L.

Resolved in the negative, and Amendment disagreed to accordingly.

8.59 p.m.

LORD BELSTEAD moved Amendment No. 93P:

Insert the following new clause: Teacher in aided school dismissed on requirement of local education authority .—(1) Where a teacher in an aided school is dismissed by the governors or managers of the school in pursuance of a requirement of the local education authority under paragraph (a) of the proviso to section 24(2) of the Education Act 1944, sections 22 and 24 and subsections (1) to (3) and subsection (5) of section 106 of this Act shall have effect in relation to the dismissal as if—

1. (a) the local education authority had at all material times been the teacher's employer, and
2. (b) the local education authority had dismissed him, and the reason or principal reason for which they did so had been the reason or principal reason for which they required his dismissal.

(2) For the purposes of a complaint under section 106 of this Act as applied by the preceding subsection, section 115 of this Act shall have effect as if—

1. (a) in subsection (4)(b), for the words the employer in question refused or failed to make such an offer, and the tribunal or Court considers that he acted unreasonably in doing so' there were substituted the words ' the local education authority refused or failed to permit the aggrieved party to be re-engaged, and the tribunal or Court considers that they acted unreasonably in doing so ', and
2. (b) in subsection (5), any reference to the employer were a reference to the local education authority."

The noble Lord said: My Lords, the purpose of this new clause is to safeguard the right of appeal against the unfair dismissal of teachers in voluntary aided schools who are dismissed on the request of the local education authority under proviso (a) of Section 24(2) of the Education Act 1944. That Act empowers a local education authority to require the managers or governors of an aided school to dismiss a teacher without giving any reason. The managers or governors and not the local education authority are in fact the employers of the teachers. The unfair dismissal provisions of the Bill provide only for a complaint of unfair treatment against the employer who carried out the dismissal, lf, therefore, such a dismissed teacher made a complaint of unfair dismissal against his employer under these provisions, the employer would have a complete defence under Section 24(1)(d) of this Act, which provides that a fair reason for dismissal is that the continued employment of the employee in the position he held would contravene a duty or restriction imposed by statute. And I am advised that the complaint in this case would almost certainly be dismissed.

My Lords, we consider that this does not give the teachers concerned—that is to say, those in aided schools—fair and just treatment. We think that in these cases the local education authority should be treated as the employer, and that the dismissed employee's appeal should lie against the authority and not against the employer who merely acted on the statutory requirement under Section 24 of the 1944 Act, and that where the tribunal determined that the dismissal was unfair the local education authority should be expressly liable for compensation. I will go into more detail if any noble Lord wishes, but this in fact is what the new clause does. My Lords, I beg to move.

LORD DIAMOND

My Lords, before the noble Lord sits down, I wonder whether he would be good enough to say whether the usual consultation took place with the relevant representatives before this clause was finally worked out.

LORD BELSTEAD

My Lords, discussions have gone on with the Church of England and the Roman Catholic school authorities. The Department of Education and Science has been in touch with, but has not discussed with, the teachers' unions and the education authorities this proposal, and there has been no reaction from those two bodies.

On Question, Amendment agreed to.

Clause 149 [Redundancy payments]:

BARONESS TWEEDSMUIR OF BELHELVIE moved Amendment No. 935: Page111, line 22, after (" Act ") insert (" or a sum payable under section 41(2) of that Act ").

The noble Baroness said: My Lords, I beg to move Amendment No. 935, and if it is convenient to your Lordships perhaps we can also discuss Amendments Nos. 93U and 93V. These are technical Amendments and they are designed to adjust the clause in order to ensure that the regulation-making powers that it provides in relation to overlapping claims for redundancy payments under the Redundancy Payments Act and complaints of unfair dismissal under the Bill cover payments made to Crown employees, because these are regarded under Section 41 of the Redundancy Payments Act as similar to redundancy payments and in respect of which rebates may be paid out of the redundancy fund. Crown employees are within the scope of the"unfair dismissal"provisions of the Bill, but Clause 149 as it stands at present does not cover the payments to Crown employees which, under Section 41(2) and (3) of the Redundancy Payments Act, are regarded as similar to redundancy payments and attract rebates from the redundancy fund. The Amendments therefore make the necessary adjustments to the clause to ensure that its provisions apply to payments to Crown employees as they do to redundancy payments under the Act. I beg to move.

LORD DIAMOND

My Lords, unless any of your Lordships wish to participate further in the debate on this, all I need do is to thank the noble Baroness, Lady Tweedsmuir of Belhelvie, for explaining the matter completely to our satisfaction.

On Question, Amendment agreed to.

9.6 p.m.

LORD DIAMOND moved Amendment No. 93N:

Page 111, line 25, at end insert— (" Provided that no such regulation shall prevent the payment to the complainant of a sum equivalent to the said redundancy payment wherever a lesser sum is awarded by way of compensation under subsection (5) of the said section 106.").

The noble Lord said: My Lords, I beg to move Amendment No. 93N. I am delighted to see the noble Baroness here, because I think we were privileged to have her attendance when the matter was discussed on a previous occasion, and my recollection (though I have not had time to check on this) is that she was good enough to say that she would consider the matter and see whether the proposal which I then made might prove to be acceptable.

The situation, if I may remind your Lordships, that the Amendment seeks to achieve is that, assuming an employee has been unfairly dismissed and is not reinstated afterwards, then he has lost his job, and lost his job in circumstances in which, if he had not been unfairly dismissed, but had simply been dismissed, he would have been entitled to redundancy payment of a given figure. It is conceivable that that redundancy payment, assuming the employee was an employee of long standing and earning substantial wages, might have been a substantial sum. But the Bill provides that where there is unfair dismissal an employee is entitled to compensation, and regulations are to be introduced to provide that he can set one against the other, so that he does not get both the compensation and redundancy. So far, I should have thought that all reasonable people agree.

But what I am instancing to your Lordships is the possibility of a person receiving by way of compensation a small sum, because he is able to get another job quickly. The compensation is based on the likely period that the ex-employee will be out of work, and therefore the amount of compensation awarded on a damages basis is fairly small; whereas if he had received redundancy payment the sum would have been large, because of course redundancy payment has nothing whatever to do with the prospect of future unemployment, but is concerned only with the achievement of past employment. These are two totally different concepts, and the basis on which each amount is calculated is a different one. In the case of redundancy, you take note of the wages that the man has earned and the period that he has been employed. In the case of damages or compensation, you take note of the likelihood of the period for which the man is likely to be unemployed before he gets another job.

To make the position clear, whether your Lordships think it right or not, the present law, as I understand it, is that a man can be given a proper dismissal on Friday, get £500, or whatever sum it may be, in redundancy pay properly under the law, and start his next job at the same or at a higher wage on Monday. That is what the law provides. But, in those circumstances, it is conceivable that the compensation payable, if this were subsequently established as being an unfair dismissal, would be quite small. All I am saying in the Amendment, which seems to me to be worth more than sympathetic consideration, is: Provided that no such regulation "— these are the regulations which this Bill empowers the Secretary of State to bring in— shall prevent the payment to the complainant "— that is, the employee unfairly dismissed— of a sum equivalent to the said redundancy payment wherever a lesser sum is awarded by way of compensation under the relevant section of the Bill. So, in short, where compensation in the case I have instanced would be quite small, and the redundancy payment quite big, it would be unfair to deny the redundant employee his redundancy pay merely because it has turned out to be an unfair dismissal for which a different kind of compensation, calculated on a different basis, has been awarded. I beg to move.

LORD SLATER

My Lords, I hope that the noble Baroness will accept this Amendment. My noble friend in moving the Amendment talked about unfair dismissal. This often happens where you get four or five people engaged in a form of employment, and because some slight error has occurred in the operations in this small establishment a particular man receives, as it were, a minute's notice, but when the matter is gone into later it is found that he ought never to have been dismissed because he was not responsible for what happened. The man ought still to be in employment, but things did not work out that way. Naturally, because of his qualifications and ability he is quite easily able to find employment further down the street, or within the village or district.

I think my noble friend has been quite fair in putting down this Amendment, and what he has said in regard to redundancy payments is correct. Some men are fortunate enough to be able to take up fresh employment the following Monday or the following week. My noble friend's Amendment provides that a man will be able to get by way of redundancy payment the sum to which he made reference, but it shall not outweigh itself against the compensation due to the man because of wrongful dismissal or something for which he was not responsible. I sincerely hope that the noble Baroness will give us some form of accommodation in this respect.

9.14 p.m.

BARONESS TWEEDSMUIR OF BELHELVIE

My Lords, I have considerable sympathy with the views expressed both by the noble Lord, Lord Diamond, and the noble Lord, Lord Slater, and naturally, being an Aberdonian, I would always prefer to see that whether you were unfairly dismissed or subject to a redundancy payment you always got the best of the bargain. I see the point of this Amendment, but I thought that the noble Lord, Lord Diamond, said in his opening remarks that he had accepted that the provisions concerning unfair dismissal and those concerning redundancy were exclusive of each other. He must have received a great number of letters during the course of this Bill, but I wrote to the noble Lord on June 23 and sought to confirm to him that I felt that the intentions of the Government were correctly laid down in this clause. What they amount to is that if you have a protection which is afforded by the Redundancy Payments Act 1965, or one which can qualify under the unfair dismissal provisions, they are exclusive. You really must choose between them.

In the debate during the Committee Stage I used the phrase—I was looking it up the other day—that"you cannot have it both ways: it must be one or the other ". This is really what this clause is about. You have either been unfairly dismissed or you are entitled to redundancy payment. I quite understand the feeling because I remember that the noble Lord, Lord Diamond, instanced a man aged, I think, 61 who had served very ably for some time and would have been able to qualify for redundancy payments but who was in fact unfairly dismissed. I quite see that. On the other hand you must have one or the other but not both, much as I would like that, as an Aberdonian. That being so, I fear I cannot recommend to the House that they should accept this Amendment.

LORD BERNSTEIN

My Lords, might I ask the noble Baroness this: could not an employee be unfairly dismissed and have his case tried and still be entitled to redundancy payment?

BARONESS TWEEDSMUIR OF BELHELVIE

My Lords, an employee can, for example, be dismissed, and he may seek at the time to put it the other way round to the noble Lord—that he was redundant, but he wishes to put forward a claim that he was unfairly dismissed. The Bill provides that he can put forward this claim on either set of circumstances, but he cannot have the award on both at the same time; nor can he choose between them. If the tribunal has decided that he has been unfairly dismissed he takes compensation; if the tribunal decides that he is redundant then he takes a redundancy award.

LORD STONHAM

My Lords, surely the redundancy payment will always be the one that is made, because when employees become redundant the employer notifies the Department of Employment some weeks before and is required to work out the redundancy payment, which has to be agreed by the Department before the employee leaves. It seems to me that in these circumstances, unless there is something in the actual dismissal or some attempt on the part of the employer to prevent the employee receiving the redundancy payment, it is unlikely that there will be a claim for unfair dismissal, or at least that it could be considered before the employee has left and has taken his redundancy payment. This is my understanding of the situation and my own experience; and I should be grateful if the noble Baroness would explain to me how there could be this conflict and how a claim for wrongful dismissal could arise.

BARONESS TWEEDSMUIR OF BELHELVIE

My Lords, if I might put it in the way that I would understand it: at the time, if a man is not redundant—whatever the reason for his dismissal, whether it is fair or unfair—he does not receive a redundancy payment. The noble Lord opposite is asking for the position to be changed, so that the man who is not redundant should nevertheless receive a redundancy payment. I can see the reason. This is not really the object behind the Redundancy Payments Act, and it was not the intention of the Labour Government when they introduced it. The proposed Amendment is not fair to other employees who have not qualified for redundancy payments. We have to bear this in mind. Therefore I suggest that the noble Lord is trying to get the best of both worlds, and I hope that he will realise that one cannot have them both, one must choose.

LORD DIAMOND

My Lords, I am very satisfied that you cannot have it both ways, which is what the Government are trying to do, as I shall seek to demonstrate. I shall write to the Prime Minister to-night recommending the noble Baroness for the job of Chief Secretary, because an Aberdonian is only a beginner at the task of saving the Treasury money.

May I explain why I say that it is not right for the Government to have it both ways to the extent of creating a clear injustice. The noble Baroness did not explain, and perhaps I could explain, the background of the whole of Clause 149. It is the Government taking power by regulations to claw back money paid, to have it both ways. That is to say, where an employee has received redundancy payment, and then gets compensation, the regulations provide that you set one against the other. In short, you deduct the redundancy payment from the compensation so that the employee does not get more than the compensation. You are envisaging circumstances in which you do not know at the start of the situation where you are. As my noble friend Lord Stonham said, in the normal circumstances the first thing that happens is that the redundancy payment is made, then the argument takes place about unfair dismissal. I want to make it clear it is the Government who are introducing regulation-making powers in this clause in order that the employee shall not have it both ways. In the normal circumstances that is not complained about.

What is complained about is that that should apply to the following circumstances: namely, where an employee is dismissed (let us have a neutral word at the moment) and says,"You should not have dismissed me; I was doing my job well and I want it back again ". If he gets his job back there is no question of an employer paying redundancy, or an employee being entitled to redundancy payment. Until you know therefore whether the employee has to be reinstated, nobody knows what the outcome of the situation is going to be. This is the answer to my noble friend Lord Stonham. The man seeks to be reinstated, the court has power to say,"You have been unfairly dismissed ", but it has no power to say,"You will be reinstated ". It only has power to say"We recommend reinstatement ". If reinstatement does not take place then the compensation may be increased.

At the end of the day, and this may be at the end of several days, weeks, or months, for the first time the man who has sought to retain his job, to be reinstated and to continue as a good workman for the same employer, finds that not only has he lost his job, but that because he has lost his job unfairly he is going to be worse off than if his employer had come along and said,"I am sorry, Bill, I don't think we can keep you any longer "—for whatever the reason may be."You have been a jolly good worker for all these years. Here is your notice. Here is your week's pay and here is your redundancy payment amounting to x hundred pounds." That is what he would be entitled to if he knew at the start that he was not going to get his job back, which he does not know until weeks or months have expired.

I submit to your Lordships that it would be a gross injustice if one were set against the other. The noble Lord is shaking his head in a negative fashion. I hope he will be good enough (because I always pay great attention to what he says) to explain to me why it is that that a workman should be much worse off, maybe several hundred pounds worse off, because an employer has treated him unfairly as against an employer who has treated him fairly and given him fair notice.

I hope that the noble Baroness will reconsider what I have said. The noble Baroness rather thought I was not paying sufficient attention to her letter. I can assure her that I read her letters word for word, day after day. The noble Baroness's letter finished, I think I am right in saying (I have it in front of me): We think that subsection (2) is sufficient to achieve what we intend. We are considering however whether it is necessary to amend the Bill to provide, etc. I did not quite know what the"etc." meant; and I did not quite know whether the decision was to amend the Bill. So I thought that, before referring to the letter, I would give the noble Baroness an opportunity of saying what the further consideration by the Government had resulted in and precisely what it meant.

My Lords, I am not satisfied with the present situation. It cannot be right that this injustice should occur. The Government are perfectly entitled to say that in the normal case one should be set off against the other. We have no objection to that. We fully understand that regulation-making powers are necessary to achieve that. We are not objecting to the substance of the clause. We are objecting merely to this one case of a man's seeking re-employment, not knowing where he stands until the end of the day, and then finding himself, because he sought re-employment, much worse off because the employer has dismissed him unfairly than he would have been if the employer had dismissed him fairly. That is a simple statement of the case. I hope that it appeals to all your Lordships' sense of justice.

BARONESS TWEEDSMUIR OF BELHELVIE

My Lords, as this is Report stage may I ask the leave of the House briefly to reply to the noble Lord? I would say, as there are no objections, in reply to his query about the last paragraph of the letter which I wrote to him, which I am delighted to see he has beside him, that I understand that an Amendment was accepted (No. 90H) to page 162, Schedule 6, and that that covered this particular point. It does not, of course, cover what we are discussing at the moment. The noble Lord said that he accepted—and he has been consistent about this; he accepted it right from the beginning in the Committee stage—that one could not have it both ways.

Perhaps the only thing I can do is briefly to state the problem as we see it and what this Amendment seeks to do. Surely we are agreed—certainly I thought we were agreed—that the protections afforded to employees under the Redundancy Payments Act and the unfair dismissal provisions are mutually exclusive. In other words, an employee who is entitled to one remedy cannot also have the other. On the other hand, we must make provision to allow for the hearing of claims of unfair dismissal. A man may have been dismissed as redundant and perhaps he himself is not sure whether he ought to make a claim for unfair dismissal. We must make provision and give time for him to do so. If he does make a claim, the tribunal has to decide whether he was redundant

CONTENTS
Ardwick, L.	George-Brown, L.	Ritchie-Calder, L.
Bernstein, L.	Greenwood of Rossendale, L.	Segal, L.
Blyton, L.	Henderson, L.	Slater, L.
Champion, L.	Hoy, L.	Stonham, L.
Cooper of Stockton Heath, L.	Janner, L.	Stow Hill, L.
Davies of Leek, L.	Longford, E.	Taylor of Mansfield, L.
Delacourt-Smith, L.	Milner of Leeds, L. [Teller.]	Walston, L.
Diamond, L.	Popplewell, L.	Wells-Pestell, L.
Gardiner, L.	Raglan, L.	White, Bs.
Garnsworthy, L. [Teller.]
NOT-CONTENTS
Aberdare, L.	Cranbrook, E.	Hanworth, V.
Ailwyn, L.	Crathorne, L.	Harcourt, V.
Albemarle, E.	Cromartie, E.	Harvey of Tasburgh, L.
Amory, V.	Cullen of Ashbourne, L.	Hastings, L.
Auckland, L.	Daventry, V.	Hatherton, L.
Balerno, L.	de Clifford, L.	Hives, L.
Balfour, E.	De L'Isle, V.	Hood, V.
Balfour of Inchrye, L.	Denham, L.	Hylton-Foster, Bs.
Barnby, L.	Derwent, L.	Ilford, L.
Belhaven and Stenton, L.	Digby, L.	Inglewood, L.
Belstead, L.	Drumalbyn, L.	Kemsley, V.
Berkeley, Bs.	Ebbisham, L.	Killearn, L.
Bessborough, E.	Elliot of Harwood, Bs.	Kilmany, L.
Bledisloe, V.	Emmet of Amberley, Bs.	Lansdowne, M.
Boston, L.	Essex, E.	Latymer, L.
Brabazon of Tara, L.	Falkland, V.	Lauderdale, E.
Brecon, L.	Ferrers, E.	Long, V.
Brentford, V.	Fortescue, E.	Macleod of Borve, Bs.
Bridgeman, V.	Gage, V.	Macpherson of Drumochter, L.
Brooke of Cumnor, L.	Geddes, L.	Milverton, L.
Brooke of Ystradfellte, Bs.	Goschen, V. [Teller.]	Mowbray and Stourton, L.
Burnham, L.	Gowrie, E.	Napier and Ettrick, L. [Teller.]
Burton, L.	Gray, L.	Northchurch, Bs.
Carnock, L.	Grimston of Westbury, L.	Nugent of Guildford, L.
Colville of Culross, V.	Hacking, L.	Oakshott, L.
Courtown, E.	Hailes, L.	O'Neill of the Maine, L.
Craigavon, V.	Hailsham of Saint Marylebone L. (L. Chancellor.)	Rankeillour, L.
Craigmyle, L.		Reay, L.

or whether he was unfairly dismissed, and it will award accordingly. We allow in the Bill for the time factor, when people are not quite sure whether they should make a claim, why they have been dismissed and what their position is. But at the end of the day they can receive an award only under one set of provisions or the other. I agree with the noble Lord that in certain circumstances there would be a larger award if a person was declared redundant, but if the tribunal decided that he was not redundant but had been unfairly dismissed, then the award must be on that count. It must be on one or the other. Therefore, I hope that the noble Lord will withdraw the Amendment.

9.36 p.m.

On Question, Whether the said Amendment (No. 93N) shall be agreed to?

Their Lordships divided: Contents, 28; Not-Contents, 106.

Rochdale, V.	Strange, L.	Tweedsmuir, L.
Rothermere, V.	Strathclyde, L.	Tweedsmuir of Belhelvie, Bs.
Ruthven of Freeland, Ly.	Sudeley, L.	Vivian, L.
St. Aldwyn, E.	Suffield, L.	Wakefield of Kendal, L.
St. Just, L.	Tanlaw, L.	Ward of Witley, V.
Sandford, L.	Terrington, L.	Windlesham, L.
Sempill, Ly.	Teviot, L.	Wolverton, L.
Sinclaire of Cleve, L.	Teynharn, L.

Resolved in the negative, and Amendment disagreed to accordingly.

9.38 p.m.

BARONESS TWEEDSMUIR OF BELHELVIE moved Amendment No. 93T:

Page 111, line 25, at end insert— (" ( ) In section 21 of the Redundancy Payments Act 1965 (claims for redundancy payments), at the end of paragraph (c) there shall be added the words"or (d) a complaint relating to his dismissal has been presented by the employee under section 106 of the Industrial Relations Act 1971 ".")

The noble Baroness said: My Lords, the purpose of this Amendment is to ensure that an employee who has made a complaint of unfair dismissal under Clause 106 will not be barred by the time factor from making a claim under the Redundancy Payments Act for a redundancy payment if the tribunal finds that his dismissal was not unfair. In a complaint of unfair dismissal under Clause 106 a tribunal may find that the employee was not unfairly dismissed but that the reason for dismissal was redundancy. Such an employee, I would suggest to the House, should not be debarred from making a claim for a redundancy payment by reason of the six months' time limit in the Redundancy Payments Act. Therefore, the Amendment adjusts the time limit provisions in Section 21 of the Act. I beg to move.

On Question, Amendment agreed to.

BARONESS TWEEDSMUIR OF BELHELVIE

My Lords, this Amendment has been discussed. I beg to move it formally.

Amendment moved— Page 111, line 28, after (" payment ") insert (" which is either— (a) a payment ").—Baroness Tweedsmuir of Bellielvie.)

On Question, Amendment agreed to.

BARONESS TWEEDSMUIR OF BELHELVIE

My Lords, Amendment No. 93V is also consequential. I beg to move.

Amendment moved—

Page 111 line 30 at end insert (" or (b) a payment in respect of the termination of a person's employment, made in accordance with any provision of the Superannuation Act 1965 or in accordance with any such arrangements as are mentioned in section 41(3) of the Redundancy Payments Act 1965 ")—(Baroness Tweedsmuir of Bellielvie.)

On Question, Amendment agreed to.

Clause 150 [Period of continuous employment]:

BARONESS TWEEDSMUIR OF BELHELVIE moved Amendment No. 93R:

Page 112, line 1, leave out subsections (3) and (4) and insert— (" ( ) Regulations made by the Secretary of State may make provision—

1. (a) for preserving the continuity of a person's period of employment for the purposes of Schedule 1 to the Contracts of Employment Act 1963, or for the purposes of that Schedule as applied by or under any other enactment specified in the regulations, or
2. (b) for modifying or excluding the operation of section 24 of the Redundancy Payments Act 1965 (which requires the continuity of the period of employment to be treated as broken for the purposes of that Act where a redundancy payment is paid to an employee and he is subsequently re-engaged), subject to the recovery of any sum which, in accordance with subsection (3) of that section, is treated as payment of a redundancy payment,

in cases where, in consequence of action to which the next following subsection applies, a dismissed employee is re-engaged by his employer or is engaged by a successor of that employer or by an associated employer.

( ) This subsection applies to any action taken in relation to the dismissal of an employee which consists—

1. (a) of the presentation by him of a complaint under section 106 of this Act, or
467
2. (b) of his making a claim in accordance with the procedure provided for by a procedure agreement designated by an order under section 31 of this Act, or
3. (c) of any action taken by a conciliation officer under section 146(4) of this Act.".)

The noble Baroness said: My Lords, the present subsection (3) of this clause enables the Secretary of State to make regulations to provide for an employee's continuity of employment to be preserved for the purposes of Schedule 1 to the Contracts of Employment Act and the legislation to which that Schedule applies. This is in cases where employees are re-engaged after making a complaint of unfair dismissal under Clause 106. We have given further consideration to this provision, and we think that it ought to be widened in order to allow the Secretary of State to make similar regulations to preserve an employee's continuity of employment in two other sets of circumstances. They are: first, after re-engagement, following his making, a claim of unfair dismissal under a voluntary procedure which is exempted from the unfair dismissals provision of the Bill under Clause 31; and, secondly, after re-engagement following action by the conciliation officer under Clause 146(4). I am sure your Lordships will agree that it is just that the Secretary of State should be able to make provisions for continuity of employment in all three sets of circumstances in which an employee might be re-engaged after making a complaint of unfair dismissal. This is what the Amendment seek to do.

My Lords, the second part of the Amendment refers to Section 24 of the Redundancy Payments Act 1965. This provides that where a redundancy payment has been paid to an employee and he is then re-engaged by the employer, his continuity of employment is broken for the purpose of the Act. The Government feel that where an employee refunds a redundancy payment in circumstances where he is re-engaged by a former employer as a result of making a complaint of unfair dismissal under Clause 106, or through an exempted voluntary procedure, or as the result of action by a conciliation officer, his continuity of employment should be preserved for the purposes of the Redundancy Payments Act. Therefore the Amendment enables the Secretary of State to make regulations to this end. I hope that your Lordships will agree that this improves the Bill. I beg to move.

LORD STOW HILL

My Lords, I should like to put one question to the noble Baroness who has moved the Amendment. She will recollect that she very kindly answered on behalf of the Government when I raised certain difficulties about Clause 28, and also Clause 150, which she is now proposing to amend. She may also recollect that I was concerned about the requirement in Clause 28 for 104 weeks' continuous employment in order to found a claim for unfair dismissal. In the course of our earlier debates she pointed out that under Clause 150 the provisions of Schedule 1 to the Contracts of Employment Act 1963 were made applicable for the purpose of determining in any given case whether employment was continuous or not.

I submitted, in reply to her, that the then provisions of Schedule 1 to the 1963 Act were not altogether satisfactory as they did not in terms provide for continuity, despite certain short breaks—for example, breaks occasioned by friction or something of the sort, or possibly even brief strike action—and I submitted that the Court should be given a discretion to treat employment as being continuous for 104 weeks even though there had been some short interruptions.

This Amendment enables the Secretary of State to make regulations for preserving the continuity of a person's period of employment for the purpose of Schedule 1 to the 1963 Act. As I read it, that seems to be subject to no qualifications art all. As I listened to the noble Baroness when she introduced this Amendment she did not have in mind the particular breaks to which I referred when I was questioning the Government previously as to the effect of the Schedule, but it seems to me that the regulations which the Amendment empowers the Secretary of State to make could cover the sort of situation which I was describing. I see nothing in the Amendment to prevent their covering that. I have no doubt that the noble Baroness is not yet in a position to say what the intention is with regard to the regulations. I am concerned as to two things—and I hope that I may have her confirmation. The first is that the regulations could be made to cover the situation that I was describing, and the second is to ask whether she is in a position to give any information as to the Government's intention. I should be grateful if she could inform the House that it is in fact the Government's intention to make provision by regulation for the sort of case I had instanced. I shall quite understand if she cannot at this stage answer the second question—it is perhaps too early; but I shall be grateful if she can answer the first.

BARONESS TWEEDSMUIR OF BELHELVIE

My Lords, I understand the particular point raised by the noble Lord, Lord Stow Hill. I wrote a letter to him also, and I hope that he has it beside him, in the same way as his noble friend Lord Diamond had my previous letter.

LORD STOW HILL

My Lords, if I had received a letter from the noble Baroness that would be an incident which I most certainly should not forget.

LORD GREENWOOD OF ROSSENDALE

My Lords, the noble Lord would have slept with it under his pillow.

LORD STOW HILL

My Lords, I have not received it. It may have been lost in the post, or it may not yet have reached me; but I should have been most interested to see such a letter. Unless I am grievously mistaken I have not received a letter from the noble Baroness, but I am grateful to her for having written to me.

BARONESS TWEEDSMUIR OF BELHELVIE

My Lords, that was just an interruption and perhaps, with the leave of the House, I may say to the noble Lord that I am deeply grieved that he has not had my letter, because I wrote to him on June 23, which is quite a long time ago.

LORD GEORGE-BROWN

My Lords, the postal services under this Government are not doing very well, are they?

BARONESS TWEEDSMUIR OF BELHELVIE

My Lords, I wrote to the noble Lord on the particular point raised by him, regarding the provisions of Schedule 1. I will of course send him another copy, because I have it here.

LORD GEORGE-BROWN

Hand it to him!

BARONESS TWEEDSMUIR OF BELHELVIE

My Lords, in order not to delay the House I will answer the two brief questions which were put to me by the noble Lord, Lord Stow Hill. In the first place, the regulations can cover the situation he had in mind. Secondly, the purpose of my letter was to explain that, having given further consideration to this clause, which at that time was Clause 146, and is now Clause 150, we felt that the provisions of Schedule 1 to the Contracts of Employment Act, together with the Bill, completely cover the intermittent breaks in employment which were concerning him, and that they would therefore provide for a continuous period of employment.

LORD STOW HILL

My Lords, may I have the leave of the House to thank the noble Baroness and to assure her that I will at once make a most intensive search of my correspondence. But I did not say I had not received her letter without careful consideration as to whether I had.

VISCOUNT DAVENTRY

My Lords, may I ask whether the noble Baroness put a 2½p or 3p stamp on it?

On Question, Amendment agreed to.

Clause 152 [Recovery of sums awarded in proceedings involving trade union or employers' association]:

LORD STOW HILL had given notice of his intention to move Amendment No. 93F: Page 113, line 9, leave out from beginning to (" comprised ") in line 18.

The noble Lord said: My Lords, Amendment No. 93F relates to a very technical point that I took up on this clause and on which the noble and learned Lord the Lord Chancellor answered on behalf of the Government. He very kindly said he would consider the question that I raised, and he has since considered it and written to me upon it. I certainly have his letter and I have it by me. I am very sorry indeed to say that it did not convince me. But this is a highly technical point, and I do not think it would serve any useful purpose to pursue it. I simply wish to thank the noble and learned Lord, and, with the leave of the House, I will not move this Amendment.

Clause 153 [Proceedings against unregistered organisations]:

LORD STOW HILL

My Lords, I beg to move the next Amendment in my name, which again, I am afraid, is rather a technical one. Clause 153 deals with proceedings against unregistered organisations of workers.

LORD DIAMOND

My Lords, may I ask my noble friend the number of the Amendment to which he is speaking?

THE DEPUTY CHAIRMAN OF COMMITTEES (VISCOUNT HOOD)

My Lords, I called Amendment No. 93Q.

LORD STOW HILL

My Lords, I am extremely sorry. I was speaking to Amendment No. 93G. I apologise to the House.

LORD DIAMOND

My Lords, we all recognise the difficulty of all these letters, and I am sure my noble friend does not need to apologise to anybody. I beg to move Amendment No. 93Q: Page 114, line 14, at end insert (" or has not been so used.") Clause 153 deals with proceedings against unregistered organisations, as my noble friend has just said, and subsection (4) deals with Recovery of any sum which in any such proceedings is awarded as compensation or damages ", and it says that it shall not be enforceable against any property comprised in a fund belonging to…the organisation, if under the rules of the organisation property which is…comprised in that fund is precluded from being used for financing strikes…". So we are dealing with the protection of that property, and we are dealing with it because it is entitled to that protection if the rules say that it should be precluded from being used for financing strikes.

The Amendment seeks to add"or has not been so used." In short, there should be two tests: one whether the rules say that it is precluded from being used, the other the fact that it has not been so used. The reason why I suggest that additional test is that until this Bill is published unions will not know necessarily that in order to obtain that protection they should have rules which say that this property is precluded from being used. They may be under the impression that if you simply do not use the property in that way that is adequate for protection—and indeed it probably is until this Bill becomes law. When the Bill becomes law those unions which want to continue the protection would have to alter their rules, and that would take time. Therefore, it is right that the additional test which I am proposing should be adopted, and that is why I beg leave to move the Amendment.

9.56 p.m.

BARONESS TWEEDSMUIR OF BELHELVIE

My Lords, the effect of this Amendment would be to extend the protection against liability for awards of compensation and damages that is afforded to unregistered organisations of workers and employers by this clause to cover not only those funds which, under the rules of the organisation, are not available for financing industrial action, but also any funds which have not yet been so used, in the words of the Amendment, or not used for that purpose.

Noble Lords will recall that this Amendment is similar to one which was withdrawn at an earlier stage, in Committee, and I fear that we cannot accept it for two reasons. First, the Bill is intended to offer protection only to provident funds, and then only if the organisation is prepared to forfeit any right to call on them for other purposes by putting them under independent control. Secondly, because the Amendment would, in contrast, provide immunity for the general funds of an organisation which had not before used them for what, I suppose, would be called"militant"purposes. For these reasons, we do not feel that we can accept the Amendment.

LORD DIAMOND

My Lords, I would not propose to seek to divide the House on it, but I am unhappy about the answer. As the noble Baroness said, the purpose of the Bill is to protect provident funds. But provident funds can be of two kinds. They can either be funds which are earmarked and set aside, or they can be those funds which are part of the regular funds, the normal funds, of a union, and that part which is used for provident purposes. This presents no problem for tax purposes, because the tax definition is merely a question of fact: what had the funds been used on, and if they had been used for provident purposes then the tax benefits are paid, or repaid, as the case may be. Therefore, it is right that where you have unions, or unregistered organisations, which do not separate their funds in this way, the test should be a factual test; and if in fact the funds are not used for strike purposes, and have never been used for strike purposes but only for provident purposes, even if they are not set aside it is reasonable that they should be protected in this way.

If the noble Baroness is not prepared to change her mind about this, all one can do is to take note of the view of the Government, and organisations of this kind will have to take the appropriate steps to protect their funds by earmarking them, setting them on one side, or doing whatever is necessary, which I want to point out to the noble Baroness means a new course of conduct for them. For years and years and years they have been able to treat one fund as serving a variety of purposes, but this course will no longer be available to them. The noble Baroness has made clear that the Government are not prepared to look kindly on these organisations in this respect, and I have no alternative but to seek your Lordships' permission to withdraw the Amendment.

Amendment, by leave, withdrawn.

10 p.m.

LORD STOW HILL moved Amendment No. 93G: Page 114, line 14, at end insert— (" (5) For the purposes of this section property belonging to the organisation shall not include property belonging to any member of the organisation otherwise than jointly or in common with the other members of the organisation.")

The noble Lord said: My Lords, this is the Amendment which I mistakenly began to move before the last Amendment was discussed. I put it forward merely as a suggestion for consideration, and I do not pretend for a moment that any great question of principle is involved here. It arises in the following way. Clause 153 specifies the property which can be taken in execution of a judgment against an unregistered organisation of workers. In Committee I called attention to the fact that the Donovan Commission Report pointed out that there was considerable doubt as to what constituted property of an unregistered organisation of workers. Under the Trade Union Act, 1871, the property of a trade union was vested in trustees, but it was doubtful at all times what constituted the property of an organisation not registered under the 1871 Act. Now the 1871 Act is being repealed by this Bill, and in those circumstances doubt exists as to what one means by the expression,"property belonging to an unregistered organisation of workers."

In Committee I suggested that perhaps it would be useful to take the opportunity of resolving that doubt by incorporating some definition which indicated precisely what was meant by"property belonging to a union ". The noble and learned Lord the Lord Chancellor replied on behalf of the Government, and pointed out that it would not be practicable to incorporate any such definition because there was a wide range of doubt, which applied not only to the property of an unregistered organisation of workers but also to a number of other bodies, clubs and so on, and that therefore it would not be feasible to amend subsection (3) of the clause by putting into it any such definition. That I entirely accept and understand, and I do not ask the Government to do so. It would need some other measure of a more comprehensive character to resolve that doubt.

The suggestion, however, which I seek to make in the Amendment is not to go anything like so far as producing a definition, but simply to say what is not included in the property of an unregistered organisation, whatever that property is. What I seek by the new subsection is to exclude from such property the property of any member of the organisation which he does not own jointly or in common with other members in it, in other words his own property. I would not for a moment suggest that that is something which I should press on the Government, but I put it forward as a suggestion which I think might be an improvement if the Government think it is rightly framed. It would, I imagine, bring some sense of comfort and security to members of unregistered organisations if they were told explicitly in the terms of the Bill that their own personal property was in all circumstances completely immune. That is the purpose of the Amendment which I beg to move.

THE LORD CHANCELLOR

My Lords, this Amendment makes no difference to the existing effect of the Bill. It makes clear that which I thought was already clear, that the private property of members of an unregistered organisation of workers or employers is not available to meet an award of damages, compensation or whatever it may be, arising from civil proceedings against the organisation. My Lords, that is the position of the clause as it stands; that is the effect of the Amendment and, faced with that position, I am happy to accept the Amendment.

LORD STOW HILL

My Lords, may I thank the noble and learned Lord for accepting the Amendment? I do not maintain that it is a world-shaking Amendment, but it effects a slight improvement, and I am grateful to him.

On Question. Amendment agreed to.

10.6 p.m.

THE LORD CHANCELLOR moved Amendment No. 93A:

After Clause 153 insert the following new clause: Nominations by members of trade unions .—(1) The Secretary of State may by regulations make provision—

1. (a) for enabling members of trade unions who are not under sixteen years of age to nominate a person or persons to become entitled, at the death of the member making the nomination, to the whole or part of any moneys payable on his death out of any funds of the trade union of which he is a member; and
2. (b) for enabling any moneys payable out of the funds of a trade union on the death of a member of the trade union, to an amount not exceeding £500, to be paid or distributed on his death (whether in accordance with such a nominaton or otherwise) without letters of administration, probate of any will or confirmation.

(2) Any regulations made in accordance with subsection (1)(a) of this section—

1. (a) may include provision as to the manner in which nominations may be made and as to the manner in which nominations may be varied or revoked, and
2. (b) may provided that, subject to such exceptions as may be prescribed, no nomination made by a member of a trade union shall be valid if at the date of the nomination the person nominated is an officer or employee of the trade union or is otherwise connected with the trade union in such manner as may be prescribed.

(3) Any regulations under this section may include such incidental, transitional or supplementary provisions as the Secretary of State may consider appropriate, and, in particular, any such regulations made in accordance with subsection (1)(a) of this section may include provision for securing, to such extent and subject to such conditions as may be prescribed,—

1. (a) that nominations made under the enactments repealed by this Act shall have effect as if they had been made under the regulations (and, in the case of any such nominations made by members of organisations which are not for the time being registered as trade unions under this Act, shall so have effect as if the organisations were so registered) and may be varied or revoked accordingly, and
2. (b) that any nomination made under the regulations by a member of an organisation which, at the time of the nomination, is registered as a trade union under this Act shall continue to have effect notwithstanding that the organisation ceases to be so registered, and may be varied or revoked accordingly.

(4) The Secretary of State may by order mad by statutory instrument direct that, in relation to deaths occurring after the end of the period of one month beginning with the date on which the order comes into force, subsection (1) (b) of this section shall have effect as if, for the reference to £500, there were substituted a reference to such higher amount as may be specified in the order. (5) No order shall be made under subsection (4) of this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House of Parliament. (6) In this section any reference to a trade union shall be construed as including a reference to an organisation of workers which is for the time being entered in the provisional register.

The noble and learned Lord said: My Lords, it falls to me to propose what looks at first sight to be a rather involved Amendment, which achieves really a very modest result. The repeal of the Trade Union Act Amendment Act 1876, which is effected by Schedule 9, will involve the repeal of an existing facility. The existing facilities allow members of a registered trade union to nominate persons to receive sums from union funds in the event of a member's death, and money can be distributed in other circumstances where there is no will. This is a useful facility which ought to be saved. It would have been possible—perhaps in some ways it would have been more attractive—simply to save the provisions of the 1876 Act. But that Act operates according to an outdated code, and there are other and more modern codes operating elsewhere. The result is that it has been thought advantageous to substitute a new code on lines similar to those found in other and more recent Acts. This is what the new Clause attempts to do.

The new provisions preserve the essential features of the old procedure. They protect the position of existing nominees, but they commit the details of procedure to regulations. These regulations are to be made by the Secretary of State, and this, it is thought, will give greater flexibility and adaptability to the new code. There are two consequential Amendments to Schedule 9—and those of your Lordships who are interested in details will find them in Amendments Nos. 99 and 100—repealing the Provident Nominations and Small Intestacies Act 1883, and parts of the Administration Estates (Small Payments) Act 1965. In due course I, or another noble Lord who is a member of the Administration shall propose these Amendments.

The new clause ensures that the regulations will maintain the existing features of the present procedure. An important function of the clause is to protect the rights of existing nominees. A nomination made by any organisation registered under the existing Trade Union Act will remain valid, irrespective of whether that organisation can and does subsequently register as a trade union under this Bill. Similarly, a nomination made by a member of an organisation registered as a trade union under the Bill will remain valid, even if the organisation subsequently cancels or loses its registration. I have received and it will be my duty to call it, if I can find it in the mass of paper with which I am surrounded, a manuscript Amendment in the name of the noble Lord, Lord Diamond. In the meantime, I beg to move the new clause.

My Lords, it is now my duty to call a manuscript Amendment, supplementary to the present Marshalled List as an Amendment to Amendment No. 93, as follows,"in subsection (6), to leave out line 3."

LORD DIAMOND moved, as an Amendment to the Amendment: In subsection (6), leave out line 3.

The noble Lord said: The noble and learned Lord the Lord Chancellor has been good enough to explain the purpose of the new clause. It will enable a member of a trade union under 16 years of age to nominate a person to become entitled at his death to the whole or part of any monies payable at death out of funds of the trade union of which he is a member. Subject to what the noble and learned Lord has just said, we find it unacceptable to distinguish, for the purpose of a young man disposing of his monies without the use of a will, between a young man who is a member of a union whose committee had decided to register and of a young man who belongs to a body which had not decided to register as a trade union. This is a circumstance we treat with seriousness and solemnity. We do not like to make this artificial distinction. It seems to me a pity that this much-needed new clause, which provides the continuation of this facility, should have this blemish.

Subsection (6) says: In this section any reference to a trade union shall be construed as including a reference to an organisation of workers which is for the time being entered in the provisional register. The words"trade union"mean a registered trade union. Though subsection (1) shows some evidence of progress in the Government's thinking, it does not go so far as to remove entirely a distinction which I think it is only proper we should remove. It seemed to me, on considering this matter (and one gets to these matters very late, because things have been moving very fast and the Marshalled List has been growing every day until to-day), that one way of dealing with it was to remove this last line, which is what my manuscript Amendment seeks to do. The subsection would then read: In this section any reference to a trade union shall be construed as including a reference to an organisation of workers. I think the effect of that would be (though I am an amateur in this) to remove the distinction, which I think we should remove when considering these solemn matters. For that reason, I beg to move my manuscript Amendment.

THE LORD CHANCELLOR

The original Amendment was No. 93A, after Clause 153 to insert a new clause on the Marshalled List, since when a manuscript Amendment has been proposed to the Amendment No. 93A in the following terms: that is to say,"In subsection (6), leave out line 3." That is the Amendment which the House should now discuss.

My Lords, I have had this manuscript Amendment only since I occupied the Woolsack this afternoon. It follows, therefore, that what I say now is not irrevocable, and I am sure noble Lords will accept that. It is possible that there may be less technical objection to this manuscript Amendment than I now seek to set forth, and I should not like the noble Lord to think that, without adequate consideration off the Woolsack, I would reject it finally or out of hand. Our present thought is that the Amendment to the Amendment is not acceptable, but for the reason I have given, I do not suggest that this decision is irrevocable.

The manuscript Amendment would have the effect of making the new procedure for nominations, and the distribution of money where there is no will, available to members of any organisation of workers, whether registered as a trade union or not. There has been throughout this Bill a controversy between the two sides of the House as to the virtues of registration under the Bill and the vices of non-registration under the Bill. I do not want to embark upon this contentious subject from a contentious point of view, but obviously one of the advantages of registration under the Bill, and indeed of registration under the existing set of laws, is that one can be, up to a point, satisfied that an organisation which is registered is reputable, and that one has some control in the end of whether it is administered properly. If an organisation is unregistered, as many organisations and trade unions are up to this moment (they do not have to register), then there is no control over it at all. The procedure which we sought to save was limited to registered trade unions; that is to say, trade unions registered under the existing law.

There is no question of progress in this matter, as the noble Lord said. As soon as this particular trouble was drawn to my attention—and I am bound to say that, for instance, at the stage of Second Reading I was quite unaware of it, although perhaps I ought to have known of it because it was vaguely in the number of things I did know—I said that of course this must be saved; and it has been saved by the Amendment which I have proposed. What the noble Lord now proposes is that the procedure, instead of being saved, should be extended to unregistered organisations. I do not want to help unregistered organisations, because our policy is to encourage organisations to register. But nor do I want to penalise people who happen to be members of an unregistered organisation as such, because they happen to be members of an organisation which has taken a foolish decision. What I am concerned with, as Lord Chancellor, is the proper administration of the law, and at the moment the manuscript Amendment is not acceptable. But I had it in my hands only after 2.30 this afternoon and therefore I do not want to give the noble Lord an unqualified,"No ". Perhaps he will be good enough to withdraw it and in the meantime I will consider the matter. However, I must tell him that it is not acceptable to the Government.

LORD DIAMOND

My Lords, I wonder whether I might make two prefatory comments before coming to the substance of my remarks. First, I should like to say that I well understand that the noble and learned Lord and his advisers have had totally inadequate time to consider this Amendment. In an ideal world one would have had more assistance and more time oneself and would have got to this a little earlier and so have put it forward to the Government a little earlier; but in an ideal world industrial relations would be such that there would he no need for a Bill of this kind at all. So this is just unfortunate. Secondly, may I say that when I referred to progress I was not for one moment suggesting that when the matter was put to the noble and learned Lord it would not receive his sympathy—that is to say, the whole matter of Amendment 93A and not my Amendment to it? I was referring to the fact that whereas up to now in the Bill a union on the provisional register is not a trade union, we are now in this clause getting that treatment as a trade union that we have had in another case during the provisional period. That is the only element of progress, and again that is something which should not be raised in a contentious way.

As to the substance of what the noble and learned Lord was good enough to say, I quite appreciate that the way he put it, with respect, would be entirely the proper way having regard to his important duties. I quite accept that although this is a facility which one would not wish to deny to a young man because of some incidents outside his control, nevertheless in the proper administration of the law it is essential that there should be proper and responsible administration. I quite understand that there would have to be sufficient evidence of that kind of approach in order to extend this facility to those who are members of an organisation of workers, as opposed to being members of a trade union.

I would only say this to the noble and learned Lord: that he should bear in mind during his consideration that if the registration had been of precisely the same kind as under the 1871 Act, then it would be reasonable to assume that the same proportion—something like 85 per cent.—of union members would be in registered unions. It is because the new registration proposals have turned the majority of unions from members of registered unions to members of non-registered unions that we are all finding ourselves in this difficulty. The noble and learned Lord has been good enough to say that he will consider the matter. He has said it in a most acceptable context. I am grateful for his undertaking to consider it, and seek permission to withdraw my manuscript Amendment.

Amendment to Amendment, by leave, withdrawn.

On Question, Amendment agreed to.

10.25 p.m.

THE LORD CHANCELLOR rose to move Amendment No. 93W:

After Clause 153, insert the following new clause Winding up of trade unions, employers' associations and certain other organisations .—(1) For the purposes of the application of Part IX of the Companies Act 1948 to—

1. (a) an organisation in respect of which the Chief Registrar has presented a petition under section 90(4) of this Act, or
2. (b) an organisation whose registration under this Act as a trade union or as an employers' association has been cancelled,

the organisation shall he regarded as an unregistered company within the meaning of Part IX of that Act, whether apart from this section it would be so regarded or not. (2) Section 399 of that Act (winding-up of unregistered companies) shall have effect in relation to any such organisation as is mentioned in paragraph (a) or paragraph (b) of the preceding subsection as if—

1. (a) in subsection (3), for the words"place of business ", wherever they occur, there were substituted the word"office ";
2. (b) subsection (5)(a), the words"or has ceased to carry on business, or is carrying on business only for the purpose of winding up its affairs"were omitted; and
3. (c) in subsection (6), in paragraphs (a) and (b), for the words"at its principal place of business, or by delivering to the secretary or some director, manager or principal officer"there were substituted the words"at its principal office, or by delivering to the secretary or any other officer ".

(3) Except as provided by subsection (1) of this section, Part IX of the Companies Act 1948 shall not have effect in relation to any trade union or employers' association. (4) An organisation which has been incorporated by virtue of section 74 of this Act shall not be dissolved, except by an order of the court under the Companies Act 1948, until there has been lodged with the registrar a certificate signed by the secretary, or by some other officer of the organisation approved for the purpose by the registrar, that all property vested in the organisation has been duly conveyed or transferred by the organisation to the persons entitled to it.

The noble and learned Lord said: My Lords, I must now propose this Amendment in a slightly amended form from that in which it appears on the Marshalled List. As it appears on the List it reads: After Clause 153, insert the following new clause—". The Amendment is the same, but it must be proposed in the form: After the new clause last inserted, to insert the following new clause ". This is a rather formidable-looking Amendment to effect a relatively modest purpose. It establishes that a trade union or employers' association has to be wound up under Part IX of the Companies Act; that is to say, in the same way as an unregistered company. But it also provides that Part IX is applicable only to a winding up which takes place on the initiative of the Registrar. This really arises out of a number of criticisms which were put forward on May 24 at the Committee stage by the noble Lord, Lord Stow Hill. In particular, Clause 90, as it now is, was alleged to leave it in doubt whether or not the subject of winding up was adequately dealt with; and in particular whether it was clear which part of the Companies Act would apply to the winding up of a registered organisation, and how and in what circumstances the relevant provisions would be applied. The purpose of the new clause is to meet these criticisms.

For the purposes of Clause 90, trade unions and employers' associations are to be dealt with under Part IX of the Companies Act 1948, so in effect they will be dealt with in the same way as unregistered companies are dealt with. Part IX will also apply to the organisations which have had their registration under the Bill cancelled. The reason for this is that such organisations do not cease to be bodies corporate and it is therefore necessary to provide for the manner in which they are to be wound up. There is another important function to the new clause: it is to make clear that, even though a trade union or employers' association is to be treated as an unregistered company, it will not be open to the creditors to seek the winding up; only the Registrar will have that right. That is provided for in Clause 90.

The new clause also makes provision for the proper dissolution of a registered organisation in other circumstances, as when the members themselves decide on dissolution in accordance with the rules. I hope and believe that the new clause fully covers all the technical provisions needed to support Clause 90, and I hope that it will meet with universal approval.

LORD STOW HILL

My Lords, I rise to express sincere indebtedness to the noble and learned Lord for the steps that he has taken to meet difficulties which I felt on Clause 90. He wrote me very fully upon the matter, and he has now put down and introduced this new clause. So far as I am concerned, it seems to meet completely the difficulties that I raised and, as I have already said, I am most indebted to the noble and learned Lord.

On Question, Amendment agreed to.

Clause 154 [Restrictions on registration under other Acts]:

10.30 p.m.

THE LORD CHANCELLOR moved Amendment No. 93X: Page 114, line 32, at end insert (" unless the decision of the registrar on the application is reversed on or in consequence of an appeal to the Industrial Court ").

The noble and learned Lord said: My Lords, the effect of this Amendment is as follows. It provides that the registration of an organisation of workers as a company under the Companies Acts shall not be void if the Registrar's refusal to enter the organisation upon the special register is reversed as the result of the organisation's appealing to the Industrial Court against his decision. It follows, I think, that this is a consequential Amendment rendered necessary by the addition in Committee to what is now Clause 114 of a right of appeal against the Registrar's decision not to admit an organisation to the special register.

Organisations of workers are prevented by Clause 154 from retaining their registration as companies unless they are admitted to the special register. If the organisation of workers registered as a company is refused admission to this register, it will be able to make use of the new appeal facility to challenge the Registrar's decision before the Industrial Court. In this situation it is necessary to ensure that the organisation has the right to retain its registration as a company pending the result of the appeal. The Amendment will have this effect. It will defer the application of subsection (2)(b) of the clause until the organisation's position is made clear either as a result of the appeal or as a result of the Registrar's reviewing and withdrawing his objections to entry upon the special register before the appeal reaches the Industrial Court. My Lords, I beg to move.

LORD DIAMOND

My Lords, all I think it needs for us to do is to thank the noble and learned Lord for having explained the purpose of this Amendment, which undoubtedly is an appropriate one and improves the Bill. We are grateful.

On Question, Amendment agreed to.