HL Deb 15 July 1971 vol 322 cc513-70

4.10 p.m.

Consideration on Report resumed.

LORD BROWN

My Lords, I am uneasy about Amendment No. 93B. I address myself to my noble friend on the Front Bench. It is quite clear that both the Government and my noble friend are alert to the danger of the disclosure of certain information which might damage the company. That is not the point of the argument, because if one looks at my noble friend's second Amendment he has provided a suggested means of preventing the travelling of information given to representatives which might be damaging to the company; so there is not a deep issue of principle here or anything of that sort. But I want to make what is a technical, or perhaps a better word would be"sociological ", point which might weigh in considering this Amendment.

The role of representative is one where an individual is elected to speak on behalf of others. The possession by representatives of confidential information can be extremely embarrassing. Representatives who are entrusted with confidential information come perhaps under greater pressure than can be envisaged to disclose it to those who press a particular course of action upon them, and who want to know, if they are refused their desires, the reasons for it. Without impugning in any sense the integrity of representatives, I believe that it would be quite unfair to give them important information which could damage the interests of a company, saying,"You must not disclose it ", so putting them in a very serious position in regard to their customers. Here I speak from experience. I have explored this issue of confidentiality over the years with shop stewards, and the resolution of this particular body of shop stewards was, that if the information is of this kind they would prefer not to hear it, for the reasons I have given.

Perhaps this consideration might be in the thoughts of my noble friend and others when one comes to consider whether to press this Amendment or not. I would stress a point which I know that my noble friend has not overlooked—the fact that we are not debating the question, whether managements should be forced to disclose information which might damage the firm. If one looks at Amendment No. 93B alone that might appear to be the intention of my noble friend. But of course it is not, and if you take that Amendment in conjunction with his later Amendment, No. 93D, it is quite clear that he is alert to the danger of disclosure of information which might damage the company. I feel I am making a subsidiary point of some importance. I do not know whether I shall vote for these two Amendments or not but I thought it was worth while airing this point.

LORD STOW HILL

My Lords, I should like to speak on this particular Amendment, No. 93B, because not merely does it pave the way for my noble friend Lord Diamond's Amendments Nos. 93D and 93E, but also, if it is not carried, it would not be possible, as I understand the situation, for Amendment No. 93C to be moved. Therefore I hope that it is convenient to the House if, in the course of my speech, I indicate the characteristics of Amendment No. 93C, which is designed to be an alternative way of achieving what my noble friend Lord Diamond seeks to achieve by his Amendment No. 93D which he has already explained to the House. My Lords, unless paragraph (e) comes out, I should have thought that neither his nor my Amendment could find their place in the Bill. I therefore address myself to the substance of Amendment No. 93C.

First, as a general statement, I would submit that this particular provision of the Bill is really as important as any other. If one is trying to bring about orderly negotiations in a situation in which the relevant information, as to I suppose nine-tenths of it, must, in the nature of things, be in possession of one of the negotiating parties and denied to the other negotiating party—in the possession of the employers and denied to the trade union representatives—one cannot have realistic discussions across the table unless that information is in possession of both negotiating parties.

As I have said, this aspect of the Bill originated in In Place of Strife; it was in the last Government's Bill, upon which the provisions of the present Bill are modelled. But I submit that neither the present Bill nor the last Government's Bill provided an adequate answer to the dilemma as to what the employer is to be compelled to do in regard to information which the trade union representatives must have in order to make a realistic claim and which, nevertheless, is information which the employers' competitors would very much like to have and could use to the disadvantage of the employer if they had it.

My noble friend Lord Diamond has proposed one approach. In Amendment No. 93C I would propose to the House a slightly different approach. I do so having listened very attentively to what I think was a very impressive speech made by the noble Lord, Lord Byers, when we were discussing the code of conduct. Your Lordships will remember that the code of conduct contains a blank space in which the Government say, with regard to the information provisions which will ultimately find their way into the code of conduct, that they are waiting for advice from the Commission which they have not yet received. Clause 155(2) provides that the code of conduct is ultimately to be formulated taking into account the provisions of Clause 155; therefore, it is essential to get this clause right before the code of conduct can take its final form.

The proposal that I would make—I understood this to be the theme of the speech of the noble Lord, Lord Byers,—is on the general lines of experience in Germany. This rather lengthy Amendment would require the employer to disclose information whether or not it is information which would, if divulged, be damaging to the undertaking; but to be allowed, if he chooses to do so, to disclose it only in confidential terms to particular representatives of the trade union who are appointed in order to receive that information. That sanction is provided for in the second paragraph of the Amendment.

My noble friend Lord Diamond's sanction would have been the criminal sanction at present specified in Clause 155(4). I propose an alternative sanction; namely, that the employer would be under an obligation, as I have said, to impart the information, but only in confidence to particular representatives of the trade union appointed to receive it. It would be imparted upon the condition that it was to be used only for the purpose of the collective bargaining, and imparted only to those persons who needed it in order effectively to conduct that collective bargaining.

If it were imparted to any other person, then the trade union concerned would be guilty of an unfair industrial practice which would give rise to a claim against the trade union under Clause 101 of the Bill; but the trade union would have a defence, and that defence is spelt out in the last few lines of the Amendment in the following words: …it shall be a defence to any such complaint that such use or disclosure was due to the act of some person other than a person acting on behalf of and with the authority of the trade union and despite all reasonable precautions taken by the trade union to prevent such use or disclosure. In other words, if the information was misused or was disclosed to anybody not authorised to receive it, then the trade union would be liable to be proceeded against under Clause 101 as for an unfair industrial practice, subject to this: that if the trade union could show that it took all reasonable precautions to prevent the unauthorised disclosure, and that that unauthorised disclosure was due to the act of somebody for whom the trade union could not reasonably be said to be responsible, then it would be a complete and perfect answer to the complaint. I submit that that is a workable scheme—and I rather concede that it is not far removed from the German experience. I believe that there the union side do appoint representatives, obviously people who are responsible and careful, and that the disclosure is made to them in confidence.

If that is a workable scheme—and it is one which must be submitted to the judgment of people far better versed in this subject than I am, on both sides of the table—then, in my submission, it affords an answer to the dilemma which confronts any employer who is under an obligation to tell trade union representatives all that they need to know in order to assess the claim which they put forward and answer the question themselves whether the employers' undertaking can afford their claim; and to disclose information which, if it got into wrong hands, would militate seriously against the employer's undertaking. Those two conflicting considerations have to be married and reconciled in some workable scheme, and I submit this scheme for the consideration of the House as at any rate one which might be taken into account as affording a solution to the difficulty.

LORD PARGITER

My Lords, arising from what my noble friend Lord Brown said on the question of confidentiality, and the pressures on a shop steward in particular, to disclose information which was given to him confidentially, I can quite understand his point of view and I know something of the serious pressures that arise. But I think my noble friend was dealing with the peculiar circumstances that existed when few employers were willing to disclose anything that was likely to be confidential. In the few cases where they were, it obviously created considerable difficulties, because no one on the shop floor would understand that anything ought to be confidential once the shop steward had got it. If it is embodied in an Act of Parliament as a general rule that a degree of confidentiality must be observed, then I think the pressure on the shop steward would be much less, because it would be a general position within the law. I hope that my noble friend may feel that it will not be so difficult as he may have found it in the past.

4.25 p.m.

EARL JELLICOE

My Lords, I think the noble Lord, Lord Diamond, said in speaking to these three Amendments that this was a difficult matter, and on that I would agree with him straight away. There is a difficult balance here. I think we are all in favour of the principles underlying this part of the Bill, namely, Clauses 56 and 57 and Clause 155 where we are now, about the disclosure of information, improving communications in industry wherever possible and laying definite statutory obligations on employers, where necessary—and I stress"where necessary ". At the same time, there is a balance between our desire to do that and to safeguard the legitimate interests of employers. This is the balance that we are trying to strike in this particular area. My task in replying to this Amendment, plus the two that were coupled with it, has been made, if I may venture to say so with all deference to the noble Lord, Lord Stow Hill, a little more difficult, because although he has not formally done so, informally he has spoken to his Amendment, too. It might be for the convenience of the House if I replied to the Amendment formally moved by Lord Diamond. I have noted carefully what the noble Lord, Lord Stow Hill, has said, and if peradventure these Amendments are not accepted by your Lordships' House, clearly we can turn to Lord Stow Hill's Amendment. I entirely agree with him that Amendment No. 93B is a necessary piece of paving to his Amendment. Having regard to that, perhaps I will deal with his Amendment—I am changing my mind—because if the House does not accept No. 93B, it will not be possible for the noble Lord to move his Amendment.

LORD STOW HILL

My Lords, it was in my mind that unless Amendment No. 93D were carried it would be impossible to move Amendment No. 93C. That is the only thing I had in mind, and I apologise if I caused inconvenience.

EARL JELLICOE

Not art all. The awful truth was dawning upon me as I was on my feet, because I have now realised the motive behind Lord Stow Hill's Amendment. I should like to reply to his point, because it is an important Amendment, and I will include it in my reply now. This means that I shall speak at rather greater length than I hope to speak for the rest of this afternoon. I do not think there was anything in principle between us on the last Amendment that the House accepted, but it was not perhaps an Amendment of major magnitude. Again on this Amendment, I do not think there is any vast point of principle between us, but this is a matter clearly of major magnitude, because if any of the Amendments in the part that we are now dealing with were accepted, we should be making a major change in the Bill. I think it would be right to recognise that at the outset.

As your Lordships are aware, and as has been made clear, the clause as it stands exempts employers completely from any duty to disclose certain types of information, whether under Clause 56 or Clause 57, subject to the qualification,"other than its effect upon collective bargaining ". Paragraph (e), which this Amendment would seek to delete, forms one of those designated categories and covers information which could be used in a way seriously prejudicial to the interests of the employer's undertaking. What the drafters of the Bill were thinking of here was the safeguarding of information, or not to lay a statutory obligation on employers to disclose information, which was of great potential importance and of a high potential degree of confidentiality on subjects like production or pricing; matters like the forecast of a firm's future profitability; its cash flow position; new inventions, which I imagine would be included; its research and development programme; the fruits of its market research, which would be of considerable value to its commercial rivals. That is the sort of information which we have in mind here. I do not think it is necessary for me to quote further examples of the sort of information which would be caught by this clause of the Bill, in order to emphasise its importance for the firm concerned and indeed for its employees and its subcontractors as well. All I would say is that an unauthorised disclosure or a serious leak here could be utterly disastrous for that firm and its employees, and potentially crippling to its sub-contractors.

Therefore I think we shall all agree that this is an important area of the Bill. I believe that what is suggested in the first group of Amendments by the noble Lord, Lord Diamond, would present great practical difficulties, the chief of which is an unauthorised disclosure or leak. I am not suggesting that there would be a leak in most cases: I think that in the majority of cases, confidential information would be perfectly safe in the hands of responsible people to whom it was disclosed. But we should be living in an unreal world if we did not grant that there might be exceptions. There are irresponsible individuals in every walk of life, and that category may include some people engaged in bargaining who, intentionally or maliciously, would not in the last resort keep confidential information of this kind to themselves.

May I suggest as an example the individual who might have received information under this clause as an appointed trade union representative and who then changed his job? In those circumstances he might well be tempted to reveal the information to another employer, and perhaps the commercial advantage of doing so would not be lost upon him. If he did so under subsection (3) of Lord Stow Hill's Amendment his trade union would not be held responsible because there were no reasonable precautions that they could have taken against this. The individual, if he could be traced, would be liable, as the noble Lord said, to a fine of £400; but a sum of that magnitude would be a"fleabite"compared with the potential damage which, wittingly or unwittingly, he might have caused to the firm concerned. It is on those practical grounds that I cannot advise your Lordships to accept the Amendments which the noble Lord, Lord Diamond, has proposed. The noble Lord, Lord Brown, said, I think, that he was a trifle uneasy about this set of Amendments; I can only say that I am more than a trifle uneasy about them.

May I now turn to the variant which the noble Lord, Lord Stow Hill has suggested? I think that it is in order—at least it is as much in order as the noble Lord was. His variant, No. 93C, if I have understood it correctly, if it were accepted, would mean that the employer would be under a duty to disclose information in the seriously prejudicial category, but only to persons specially appointed by the trade union. The intention is that further disclosure would attract fines, et cetera—for example, the £400 fine—to the employee or the individual, unless it was done on behalf of the trade union, which would then be guilty of an unfair industrial practice. It is contended that the system of appointed trade union representatives, together with the"double lock"(to revert to the familiar phraseology) of a fine or compensation, would suffice to prevent the information from leaking any further. Again I grant that in most cases the majority of trade unions and trade unionists could be counted upon to display a responsible and thoroughly trustworthy attitude in handling confidential information of this kind. But because this is important, it is worth examining in some detail how the ingenious system proposed by the noble Lord, Lord Stow Hill, might work in practice.

The proposed new subsection (3) in Amendment No. 93C does not set any limits to the number of persons whom the trade union may appoint to receive the information nor, if I have read it correctly, need they be members of the union. Is it therefore envisaged that only a proportion of those negotiating for the trade union should be privy to this information? If so, I would suggest that this is not realistic. Since the information would have been requested because of its relevance to collective bargaining the entire union team engaged in that collective bargaining will wish to examine it in most cases; and those entitled to use the information under the last paragraph of this subsection on the union's behalf will not necessarily be the same persons as those appointed to receive the information under the second proposed subsection.

In those undertakings where unions or workers' associations negotiate as a joint panel the information is likely to pass to all those who are involved in the collective bargaining process. In negotiations with major companies, where a great many trade unions may be involved, the numbers involved on the trade union side may be very considerable; and the greater the number of those who have access to the information the greater the risk of unauthorised disclosure either at the time of the bargaining or subsequently. Therefore, here again there could be a very grave danger of very material risks which could have crippling effects for the firms involved, and the safeguards—for example, the £400 fine— would not be at all adequate in those circumstances.

I know, since I have been interested in this area from time to time, that in Germany under the 1952 Act there is a different set-up, to which the noble Lord, Lord Byers, referred in his very interesting speech on the code of industrial practice. All I would say here is that the German system operates against a very different background of collective bargaining and a very different, and perhaps in some respects happier, background of industrial relations. I was very surprised to hear the German background adduced as something which we should necessarily follow, in view of the way that we on this side of the House have been criticised from time to time for borrowing trade union law or importing it from abroad. Be that as it may, I seriously suggest that in this Bill, at this stage, what we put in has to stand the test of relevance and applicability to British conditions.

My Lords, I have already spoken too long, but I had to cover quite a wide range. I have suggested reasons why the Amendments which have not yet been moved, and indeed may not be moved, together with the Amendment which has been moved, are open, in my view, to serious practical disadvantages. May I say two things in conclusion? First, nothing in the Bill would prevent any employer from disclosing any information that he wanted to disclose: that is quite clear. The Bill as drafted merely makes it clear that the employer has no statutory obligation in certain very well defined circumstances to make the information available. Again, although through their willingness to throw it overboard from time to time I should not wish to rest too heavily on the argument, I am unable to restrain myself from saying, in passing, that this clause as it stands is modelled precisely on the corresponding clause of the last Government's Bill. I believe that we have the balance approximately right. I do not wish to be dogmatic and claim that it is necessarily perfect, but in my view it would be a great mistake for your Lordships to accept either the Amendment which has been moved or those which appear later in the List.

LORD ROBBINS

My Lords, I hope very much that the noble Earl, Lord Jellicoe, will persist in his resistance to this Amendment. It seems to me to be a known fact of common experience that although sometimes it is possible to identify the sources of leaks, in more cases than not it is not possible. If that is the case, it means that the sanctions proposed either by the noble Lord, Lord Stow Hill, or by the noble Lord, Lord Diamond, are nugatory.

LORD STOW HILL

My Lords, will the House allow me to correct one small point in the speech of the noble Earl, Lord Jellicoe, and in that of the noble Lord, Lord Robbins? The sanctions which I propose are not the £400 fine against the individual whom it may be difficult to fine: I would make the trade union liable to a complaint as upon an unfair industrial practice under Clause 101, unless the trade union could show that the unauthorised disclosure took place without any negligence on its part and was the act of someone for whom it was not responsible. Then, of course, the limits as to compensation set out in the Act would be applicable, which would be very much greater. It would be the union itself, not the individual, which would be proceeded against.

BARONESS GAITSKELL

My Lords, I have very great reservations about these Amendments, and I sincerely hope that my noble friend will not press them. I have no faith whatsoever in confidentiality; once certain information is given which can be spread I cannot see how it is possible to keep it confidential. Also, from what I have read, there seems to be a great deal of industrial spying and it would appear to be an area in which industrial spies could have a field day. Therefore, I urge my noble friends not to press these Amendments.

LORD DIAMOND

My Lords, nobody could resist a persuasive speech such as that just made by my noble friend Lady Gaitskell, who has special justification for putting forward a woman's point of view with regard to confidentiality. We are all in this difficulty: that we are not divided at all as to principle but there is a problem of making information which is needed available.

I come back to the first point, that it is admitted that information is needed for the purpose of negotiations. If the information is not given, the negotiations will not march on the basis that they were intended to on the earlier clauses in the Bill or the code of practice. Therefore, we have to distinguish between the evil of an unsatisfactory negotiation and the evil of damage to an employer's undertaking as a result of information having been disclosed improperly. Certainly I agree with everybody who says that this is not a matter of principle; it is a matter of how to measure the two evils and which is the best way of dealing with the problem. I recognise that the point to which my noble friend Lord Brown referred is also a problem; that it is sometimes embarrassing to be given information if one is not able to disclose it in detail to those by whom one has been appointed to a position to receive that information. I know that, as an appropriate way of dealing with the matter, some of your Lordships have been considering the alternative of giving the information to auditors and asking them to pass it on to the extent that they should in their discretion.

These are all possible alternatives, but the real answer I come to is this. My experience, and that of my noble friend Lord Delacourt-Smith, is that where relations are good the problem of disclosure of information does not arise greatly; certainly the problem of breaching confidentiality does not arise. Therefore, one's first task is to try to ensure good relations. I think it is helpful to good relations to disclose information that is needed, and it is damaging to good relations not to disclose information which is admitted to be needed for the purposes of these negotiations. Therefore, I still come down on the side of disclosing information and protecting the employer.

I thought that going so far as the sum of £400 would be Draconic. The noble Earl, Lord Jellicoe, did not seem to think that that was a great deterrent. It is, of course, the deterrent mentioned in the Bill. Therefore, I should have thought that it was a good guide as to what is a substantial deterrent. Any person disclosing information improperly which has been given in evidence before the N.I.R.C.—and presumably they would be entitled to ask for any information they liked at a confidential sitting, even more important information than that they were then considering—would be subject to a fine not exceeding £400. Therefore, if the noble Lord will forgive me for saying this, I am not deterred from continuing this view on the basis that the £400 is not an adequate sanction.

LORD ROBBINS

If I am in order, may I interrupt the noble Lord? I should like to draw his attention to the words that were uttered by the noble Baroness, Lady Gaitskell; if information is disclosed to an industrial spy, surely there can be no shadow of doubt that £400 is chicken feed?

LORD DIAMOND

I do not suppose that an industrial spy would rely on that method exclusively to obtain his information. I do not think it would be likely to arise in that way. Equally, if an industrial spy were to obtain information he would be able to contact any one of those persons who were present at the hearing before the N.I.R.C. or the industrial tribunal and obtain his information from them. Again, the figure laid down in the Bill as a penalty for that is £400. I do not dispute that the damage that could be done would be much greater than to the value of £400, but that figure is quite a heavy deterrent; it is a very large fine. Therefore, I should have thought that the Bill went far enough, and I do not seek to go further than the Bill.

Therefore, there is a difference of view as to how one could best deal with it. I note the anxieties which have been expressed by my own noble friends—by Lady Gaitskell and Lord Brown—and I should not want to pursue this matter to unnecessary lengths. We have given it a fair airing. I certainly share the view which I think the Solicitor General expressed during the course of a meeting to-day when he was addressing the American Bar. He said that this Bill would certainly need a lot of improvement in the future. I certainly think that this is one of the areas where it will need a great deal of improvement. But I do not propose to detain your Lordships further on this point.

I do not know whether my noble friend Lord Stow Hill would wish to address your Lordships further. It is entirely my fault that I did not anticipate that it would have been more convenient to discuss his Amendment at the same time as mine, and therefore I am sure that your Lordships would extend to him the normal courtesy if he wished to do so. I gather that he does not wish to do so. Therefore, all I can do is to thank the noble Earl for obviously having given full consideration to these difficult issues, and seek your Lordships' House leave to withdraw the Amendment.

EARL JELLICOE

My Lords, may I with the permission of your Lordships' House, before the Amendment is withdrawn, say, lightly but definitely, that it was very nice of the noble Lord, Lord Diamond, to invite the noble Lord, Lord Stow Hill, to speak again, but if Lord Stow Hill had in fact consented to that invitation he would have been out of Order because he was not the mover of an Amendment.

Amendment, by leave, withdrawn.

LORD STOW HILL moved Amendment No. 93J.

Page 115, line 22, at end insert— (" or (f) any information obtained by the employer for the purpose of bringing prosecuting or defending any legal proceedings.")

The noble Lord said: My Lords, as has previously been said, Clause 155 is in effect word for word Clause 22 of the last Government's Bill, subject to one exception: that Clause 22 has a paragraph which appears in Amendment No. 93J, and for a reason about which I am not quite certain that paragraph was left out of Clause 155. I am pleased to see that the noble Lord, Lord Drumalbyn, has put his name to the Amendment which I am moving. By way of explanation, may I say that the new paragraph relates to the information which is obtained for the purpose of proceedings by legal advisers acting on behalf of a client in a legal matter. The paragraph was designed to privilege that from disclosure. I beg to move the Amendment, because it seems to me that that ought also to be in the category of information which the employer is not called upon to disclose.

EARL JELLICOE

My Lords, I should like to say that I support the Amendment, not surprisingly as my noble friend Lord Drumalbyn has put his name to it. In doing so—this is a point which the noble Lord, Lord Stow Hill, raised at Committee stage—I should like to thank the noble Lord for bringing what was a clear omission from the Bill to our attention.

LORD STOW HILL

My Lords, I am most grateful to the noble Earl for what he has said.

On Question, Amendment agreed to.

4.54 p.m.

LORD DRUMALBYN moved Amendment No. 94:

After Clause 156, insert the following new clause Review of ballot taken under Part II or Part III .—(1) This section applies to any ballot for which arrangements have been made by the Commission under any of the provisions of Part II or Part III of this Act, whether the ballot is to be taken by the Commission or by some other body. (2) If, in accordance with Industrial Court rules made for the purposes of this section, the Industrial Court finds, in the case of a ballot to which this section applies, that the report made to the Court by the Commission as to the result of the ballot was incorrect, and that it would be just and equitable in the circumstances to amend the report so as to rectify the error without requiring a further ballot to be taken,—

  1. (a) the Court may make an order amending the report accordingly, and
  2. (b) where such an order has been made, the report shall have effect for the purposes of this Act as if it had been made as amended by the order.
(3) If, in accordance with Industrial Court rules made for the purposes of this section, the Industrial Court finds, in the case of a ballot to which this section applies,—
  1. (a) that the ballot was so misconducted that it would not be just and equitable to regard it as valid, or
  2. (b) that the report made to the Court by the Commission as to the result of the ballot was incorrect and that in the circumstances it would not be just and equitable to rectify the error in accordance with subsection (2) of this section,
the Court shall make an order quashing the ballot and so much of the report of the Commission as relates to the result of the ballot, and, if an order has already been made by the Court in consequence of that report, revoking that order. (4) Where the Industrial Court has made an order under subsection (3) of this section, the provisions of Part II or Part III of this Act under which the arrangements for the ballot were made shall have effect as if the ballot had not been taken.

The noble Lord said: My Lords, I beg to move Amendment No. 94. These Amendments provide for the review of ballots made under Part II or Part III of the Bill. They enable the Industrial Court either to rectify an error without requiring a further ballot or to quash the ballot and so much of the report of the Commission on Industrial Relations as may refer to the result of the ballot. The Amendment which we have already made to Schedule 3 sets out the provisions to be made in the rules of the Industrial Court to deal with reviews of ballots taken under Part II or Part III. The subsections of the new clause are I think quite clear. Subsection (1) restricts the application of the clause to Parts II and III of the Bill. Subsection (2) provides that where the Industrial Court finds that the result of a ballot as reported by the Commission was incorrect it may make an order amending the report if it considers it just and equitable to do so. Subsection (3) provides that where the Industrial Court finds that the ballot was so misconducted that it could not be regarded as valid or that it would not be just and equitable to amend the C.I.R's report, the Court may make an order to quash the ballot and also such part of the C.I.R's report as may relate to the result of the ballot.

I have already expressed my gratitude to the noble and learned Lord, Lord Gardiner, for drawing our attention to the need for some kind of procedure such as this. I should add that the effect of subsection (4) will be that where the ballot has been quashed arrangements for a new ballot will proceed and the Commission will then report the result of the new ballot to the Court and the other procedure will follow. I promised the noble and learned Lord, Lord Gardiner (I am sorry not to see him in his place), at an earlier stage to explain why it is that we have not made provision for a review of a ballot ordered by the Court on an application by the Secretary of State where there are reasons for doubting whether the workers really want a strike or to take part in irregular industrial action where such action would seriously prejudice the national economy, public order, health or safety. I think it would be appropriate, although the noble and learned Lord, Lord Gardiner, is not here, to inform noble Lords who would want to know why we have not covered this point.

We took this view because of the special circumstances surrounding an emergency strike ballot and the overriding purpose of that ballot. We have made it plain that the ballot is intended purely to assess the strength of support for the industrial action taken, or to be taken, and to allow the workers concerned to express their wishes. Once the result of the ballot is reported to the Court the order is effectively discharged. Since the power to take further action either by the Court or the parties concerned does not depend upon the result of a strike ballot, and since the Court has no further statutory powers under the strike ballot provisions, we do not think it is right to give the Court the same statutory powers to review a ballot as in the cases where the result of a ballot imposes a legal obligation upon a party, or may do so. Furthermore, in order to protect the interests of the parties, and especially those of the workers concerned, and to remove any possibility of abuse of the strike ballot provisions, Clause 143(7) makes it plain that after the principal order under Clause 142 takes effect the Court shall not entertain any application in respect of the same industrial dispute or any other industrial dispute which appeared to fall within the scope of the original industrial dispute.

Nor does the Court have any power to extend the period within which the result of the ballot must be reported. The Court itself decides the period within which the result of the ballot must be reported, under Clause 142(2)(c). This means of course that the period in which people are restrained from organising a strike while the ballot takes place can similarly not be extended. We see no point in giving the Court power to quash the ballot when there are no powers available to the Court to continue the restraint on organising industrial action so as to enable a new ballot to be held.

In short, since no legal obligations can follow from the result of the strike ballot and all the parties concerned are free to put their own interpretations on the result of it, we do not think it is right or necessary to extend and complicate the strike ballot provisions to deal with any possible mistakes which may have occurred in the ballot. I quite appreciate that there are arguments on the other side which the noble Lord may put, but we have decided that on balance this would do more harm than good, and therefore we have restricted the provisions of the new clause to ballots taken under Part II or Part III. I beg to move.

LORD STOW HILL

My Lords, it is my desire—and I know it would be the desire of my noble and learned friend Lord Gardiner—to thank the Government very warmly for having put down this new clause. As the House will remember, my noble friend and I put down new clauses to each of the provisions for the holding of a ballot, providing for a review of the reported result. My noble and learned friend Lord Gardiner had only one reservation with regard to the new clause, namely, as the noble Lord, Lord Drumalbyn, has just reminded the House, that it did not apply to ballots under Part VIII—the emergency procedure.

I should like to say on behalf of my noble and learned friend Lord Gardiner that he would very much have desired to be here to thank the noble Lord in person. Unfortunately he is engaged on public duties elsewhere which require his presence. Therefore in a sense I am standing in on his behalf. I am grateful to the noble Lord for his explanation why the new clause does not provide for the cases in which there may be a challenge to the reported issue of a ballot under Part VIII of the Bill. I accept that it will be difficult to import into that cluster of clauses in Part VIII procedure to make a review possible, there being no legal result of the ballot which ensues here and in other parts of the Bill.

On the other side it can be said that the ballot which will take place in the type of situation with which Part VIII is designed to deal is just the sort of ballot on which there might be a serious challenge as to its reported result. The ballot in Part VIII takes place where there is any doubt whether the workers support the strike. Supposing one gets a ballot which produces a fairly even result, I should have thought one might then get the strongest controversy on whether the ballot accurately represented the views of those concerned. However, we have had the explanation and I do not think I can press the case further. The noble Lord generously conceded that there were arguments on both sides, which of course there are, but I quite see the arguments which have prompted him to come down in favour of not applying the provisions of this clause. Once again may I say that we are extremely indebted to him for putting down the new clause.

On Question, Amendment agreed to.

5.3 p.m.

BARONESS WHITE moved Amendment No. 95:

After Clause 156, insert the following new clause— Ballots under Part II or III of this Act fairly to reflect opinions of full-time and part-time workers .—(1) This section applies to any ballot for which arrangements are to be made by the Commission under any of the provisions of Part II or Part III of this Act, whether the ballot is to be taken by the Commission or by some other body. (2) If the workers qualified to vote in the ballot include a substantial number of workers who are engaged on a full-time basis in the relevant employment and also a substantial number of workers who are engaged on a part-time basis or periodically or for limited periods or purposes or otherwise than on a full-time basis in the relevant employment, the arrangements made by the Commission shall so far as reasonably practicable include arrangements designed to ensure that the result of the ballot shall fairly reflect the opinions of the respective workers so employed, due regard being had to the amount of time for which such workers are respectively engaged in the performance of the duties involved in such employment.

The noble Baroness said: My Lords, this Amendment also is concerned with ballots taken under Part II or Part III of the Bill, that is to say ballots concerned with the establishment or continuance of an agency shop or a closed shop, or a ballot for the recognition of sole bargaining agents.

Earlier in our deliberations we had some discussion because a number of us on this side of the House are disturbed by the thought that, in an establishment or an industry where a considerable and significant proportion of part-time workers is employed, it is not fair that they should have the same weight of voice on setting up an agency shop or a closed shop, or the recognition of a sole bargaining agency. When we were discussing this previously the noble Lord the Minister who was dealing with this indicated that they have their rights and that these rights should find their place in a ballot. There is some substance in this argument. On the other hand we feel strongly that they should not have the same weight of voice in such a matter. Those whose whole life and livelihood are dependent on their full-time employment have a much more substantial interest in a decision of this kind than a group of persons who do not spend their whole working life in the particular job, and who may or may not be ephemeral. They may be seasonal workers, but in any case they do not have their main interests in the job concerned.

We think this should be reflected in the conditions of the ballot if it is felt that they should have some say in the matter. Therefore this Amendment tries to meet the point that, while there should be a place in such a ballot for the part-time worker, or possibly even the seasonal worker, it could be so organised in the wisdom of the Commission that their votes should not count for as much as the votes of the full-time workers. In practice this would not be at all difficult to organise. For example, one would merely have to use ballot papers of different colours, and the full-time workers' vote could count as one unit and the part-time workers could count as half, or whatever seemed appropriate. We have not sought to sot down any precise conditions because it did not seem very sensible to do so. Therefore, as your Lordships will observe, the Amendment leaves it to the good sense of the Commission to make such arrangements as appear to them to be reasonably practicable to ensure that the result of the ballot should fairly reflect the opinions of the full-time employees on the one hand and the opinions of those who are considerably less than full-time employees on the other hand.

In other clauses the Government have made a distinction between full-time and part-time employees. For example, we were discussing unfair dismissal a short time ago, and there the part-time employee does not have the same protection as the full-time employee, so in this legislation distinctions are drawn between the two categories of workers. We have had strong representations about this from some of our colleagues in the trade unions and it seems to us that this is a part of the Bill where there should be a distinction between the two types of workers. It is a real distinction in practice, as those of us who have some industrial practice know only too well; and we hope the Government will accept our view that in something which is so important for the industrial life of all the workers in a particular establishment, those who have the preponderant stake in it should have a more decisive voice than those who have not. I beg to move.

LORD BERNSTEIN

MY Lords, this issue has come up a number of times during the Committee stage and also the Report stage of this Bill. On one occasion the question was raised whether we should pass on the same information to part-time workers as to full-time workers, and that was fully debated. There is an increasing number of part-time workers, as we have heard from people in industry on the Government side of the House, and from trade unionists on this side. We must consider the effect of the votes of the part-time workers against the votes of people who work full-time. I think there is a precedent for this in other clauses that we have agreed, and I urge the Government to accept this Amendment.

EARL FERRERS

My Lords, we are grateful to the noble Baroness and the noble Lord for what they have said. One recognises that we had a debate on this in the Committee stage, and the Amendment proposed by the noble Baroness has taken into account the point of view of the Government and has tried to move towards it. As I understand it, the real purpose of the Amendment is that where there is a ballot the votes of the part-time workers should not carry the same weight as the vote of the whole-time workers, because, in theory at least, the votes of a majority of part-time workers could influence the ballot in a way which would be detrimental to the whole-time workers whose livelihood is tied up in the business. I should be the first to say that I think there is a great deal in this argument, and we have recognised this. But there is another side of the picture which I should like to put forward. I think possibly it is best explained by giving two examples, the first where an agency shop exists, and the second where there is an application for an agency shop.

Where there is an agency shop to which both part-time and full-time workers equally rightly belong, we believe that the part-time worker should, in justice, have an equal right to vote, by virtue of his equal membership, as a full-time worker. One might stretch the point a little further and say that since the financial contribution of the part-time workers to the agency shop is the same as that of the full-time worker, it in fact represents a bigger proportion.

BARONESS WHITE

My Lords, with great respect, that depends on the union rules; workers who work for less than a certain period in the week may pay a diminished contribution.

EARL FERRERS

My Lords, I fully accept that. I was not making this as a major point; I was merely saying that it could be argued that their contribution represents a larger proportion of their remuneration from their place of work. I do not lay great stress on that point, other than to say that it would seem in those circumstances unfair to give less than an equal right to those people.

The second point is where an application for an agency shop is made. Of course, the question of whether part-time workers should be included in an agency shop agreement in the first place, and therefore included in any subsequent ballot, will be a matter for the parties who are making the application to decide. The union could, for example, apply for an agency shop to cover only full-time workers and specifically to exclude part-time workers. Unless the Commission were to extend the application to cover part-time workers, which seems to be extremely unlikely, unless there was very good reason for it, only the full-time workers would be entitled to take part in the ballot. But if part-time workers are to be included in an agency shop, I suggest that it is just and right that they should have an equal right to vote on the matter. Otherwise it would be possible for a small minority of full-time workers to establish an agency shop agreement against the wishes of the overwhelming majority of the people who work at that particular place.

So far as ballots on recognition are concerned, again we think it right that part-timers should have an equal chance to vote. Of course, there are part-time workers who are not members of a union and are apathetic towards the union, and they are hardly likely to take the trouble to vote. Their obstructions, I suggest, will not affect the result and the views of the full-time workers are likely to determine the outcome. But if they are unionised and interested in the outcome of the ballot, we believe that they should, in justice, have their votes counted the same as full-timers. In saying that, I do not wish to denigrate or underestimate at all the view put forward by the noble Baroness. We believe there is a very substantial point. It is our belief, though, that the implied principle of treating the votes of some people as of a different weight and as having a different effect from the votes of others is not suitable. We would also point out that the Amendment could put an enormously difficult task on the Commission, as it gives no guidelines as to how different weights could be given to the votes of different classes of workers. I appreciate that the noble Baroness suggested some ways, but we believe that where a vote is taken, the votes of one class of worker should be the same as those of another class.

LORD RITCHIE-CALDER

My Lords, may I ask the Minister what he thinks would be the effect on productivity? if there is a system of part-time workers, obviously it is to reinforce productivity. What is going to happen in this sort of situation where the union would be perfectly entitled to resist part-time working on this basis? I think we are missing the point. The part-time workers, certainly in anything I understand, are people who are brought in for perfectly good and sufficient reasons. In my own profession we have a great many pin-money journalists. But do you think the National Union of Journalists (I am putting a hypothetical case) would allow the part-time journalist, the pin-money journalist to decide the policy of the National Union of Journalists? Any suggestion on those lines would arouse a lot of opposition from the Union.

EARL FERRERS

My Lords, if I may speak again, to reinforce the view that I put forward, I would repeat that if the agency shop is so designed as to include part-time workers, we believe it right that they should have a vote. But if, when an application for an agency shop is being made, it is desired that it should refer only to full-time workers, the application would be to that effect, and therefore the part-time worker would not have a vote.

BARONESS WHITE

My Lords, I am sorry the noble Earl, who I thought was approaching in our direction at the beginning of his speech, retreated towards the end and left us where we were before. Of course, this applies not only to the agency shop but also to the closed shop. Surely we have had enough discussion about the theatrical and cinematograph professions, to appreciate that these are both instances where one can have part-time workers, and if they were not brought into a closed shop great difficulty might arise over the efficacy of the closed-shop arrangement. So to say that part-time workers can be left out is no solution whatever to this problem.

As my noble friend Lord Ritchie-Calder indicated, the whole substance of our objection to treating part-time workers on an equivalent footing to full-time workers is that it does not matter so much to them and they do not matter so much to the industry or the establishment; and this fact ought to be recognised in the form of the ballot. We know that in industry part-time working is not so much a question of pin-money; to some extent it is due to the fact that married women come in for part-time shifts, after-school shifts and so on, which are organised in certain instances, or for seasonal work, or when there is a rush order. I know that in my former constituency Courtauld's have several factories; and when there was a great rush on a number of women who had previously worked there came back to get the order completed. After that it might be several months before they returned to work. But at any particular point of time they would be there as part-time workers, though with a far less stake in the industry.

I do not want to labour the argument. I should have thought it was plain. I do not believe for one moment that it would be beyond the wits of the Commission to devise a sensible scheme. I do not think I should have the slightest difficulty in doing it, or that the noble Earl would have the slightest difficulty, if we set our minds to it. But there is a difficulty here. This is something on which we have had quite considerable representation, and in the circumstances I must ask my noble friends to support this Amendment in the Lobby.

Clause 157 [Restrictions on contracting out]:

5.27 p.m.

EARL JELLICOE moved Amendment merit No. 95G: Page 116, line 16, at end insert (" or any approved closed shop agreement ").

5.19 p.m.

On Question, Whether the said Amendment (No. 95) shall be agreed to?

Their Lordships divided: Contents, 54; Not-Contents, 89.

CONTENTS
Addison, V. Douglas of Barloch, L. Popplewell, L.
Archibald, L. Fiske, L. Ritchie-Calder, L.
Beaumont of Whitley, L. Gaitskell, Bs. Royle, L.
Bernstein, L. Garnsworthy, L. Sainsbury, L.
Beswick, L. Greenwood of Rossendale, L. St. Davids, V.
Blyton, L. Henley, L. Shackleton, L.
Brockway, L. Hoy, L. Silkin, L.
Brown, L. Jacques, L. Sorensen, L.
Buckinghamshire, E. Janner, L. Stocks, Bs.
Burntwood, L. Lindgren, L. Stonham, L.
Burton of Coventry, Bs. Maelor, L. Stow Hill, L.
Champion, L. Mais, L. Strabolgi, L.
Chorley, L. Masham of Ilton, Bs. Summerskill, Bs.
Collison, L. Norwich, V. Swaythling, L.
Davies of Leek, L. Pargiter, L. Taylor of Mansfield, L.
Delacourt-Smith, L. Phillips, Bs. [Teller.] Walston, L.
Diamond, L. Platt, L. Wells-Pestell, L.
Donaldson of Kingsbridge, L. Plummer, Bs. White, Bs. [Teller.]
NOT-CONTENTS
Aberdare, L. Elliot of Harwood, Bs. Merrivale, L.
Ailwyn, L. Emmet of Amberley, Bs. Milverton, L.
Auckland, L. Exeter, M. Monck, V.
Balerno, L. Falkland, V. Morrison, L.
Balfour, E. Ferrers, E. Mowbray and Stourton, L. [Teller.]
Barnby, L. Ferrier, L.
Belhaven and Stenton, L. Fortescue, E. Oakshott, L.
Belstead, L. Fraser of Lonsdale, L. Radnor, E.
Berkeley, Bs. Goschen, V. [Teller.] Rankeillour, L.
Bessborough, E. Gray, L. Rochdale, V.
Blackford, L. Grenfell, L. Ruthven of Freeland, Ly.
Boothby, L. Gridley, L. St. Just, L.
Brooke of Cumnor, L. Hacking, L. Sandford, L.
Brooke of Ystradfellte, Bs. Hailes, L. Sempill, Ly.
Burton, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) Shannon, E.
Camoys, L. Sherfield, L.
Chesham, L. Harvey of Prestbury, L. Skelmersdale, L.
Clwyd, L. Hatherton, L. Somers, L.
Colville of Culross, V. Howe, E. Stamp, L.
Conesford, L. Hylton-Foster, Bs. Strang, L.
Courtown, E. Jellicoe, E. (L. Privy Seal.) Strange, L.
Craigavon, V. Killearn, L. Strange of Knokin, Bs.
Croft, L. Lansdowne, M. Tweedsmuir, L.
Daventry, V. Latymer, L. Tweedsmuir of Belhelvie, Bs.
Denham, L. Lauderdale, E. Vivian, L.
Derwent, L. Long, V. Wakefield of Kendal, L.
Digby, L. Loudoun, C. Windlesham, L.
Drumalbyn, L. Lucas of Chilworth, L. Wolverton, L.
Dundee, E. MacAndrew, L. Yarborough, E.
Ebbisham, L. Massereene and Ferrard, V. Young, Bs.
Eccles, V.

Resolved in the negative, and Amendment disagreed to accordingly.

The noble Earl said: My Lords, if it is agreeable to the House, I should like to suggest that we might take Amendments Nos. 95K and 95L with Amendment No. 95G. If I may just remind your Lordships of the purpose of Clause 157, which these Amendments are designed to amend, it is to ensure that no one will forego the rights provided under the Bill by agreement or arrangement, except where specific provision has been made in subsection (2) of Clause 157 to exclude certain rights in certain defined circumstances. An example is where an agency shop agreement has been made.

We have been looking at this clause, and have come to the conclusion that there are three additional types of agreement which should be excluded from the provisions of subsection (1), and the purpose of these Amendments is to exclude them. The first would exclude an approved closed shop agreement. Such an agreement, which would have to be approved, as your Lordships know, by the Industrial Court, would, by its very nature, place some limitation on employees in regard to the exercise of the rights which they have under Clause 5(1) of the Bill for example, the right not to belong to a union.

Second, there are two sets of circumstances in which a conciliation officer, acting under Clause 156, may achieve a settlement of a complaint relating to dismissal or, under Clause 5(1), to the infringement of an employee's rights which had already been, or could be presented to an industrial tribunal under Clause 106. It is the purpose of these Amendments to exclude such agreements.

Thirdly, my Lords, there is the case where an agreement has been reached between the parties as a result of an individual making an application to the Registrar under Clause 81 in relation to a complaint against a trade union or an employers' association. Again, in such cases we think it would be wholly right to preclude the individual from proceeding with such a complaint to an industrial tribunal under Clause 107 where there has been an agreement reached. I hope that that is sufficient explanation of these three quite simple Amendments.

LORD STOW HILL

My Lords, may I ask just one comprehensive question on this series of Amendments to which the noble Earl, Earl Jellicoe, has referred? I have studied them. Am I right in thinking that no provision, either of the clause as unamended or as it would be amended if these Amendments were carried, could possibly affect the simple case of a worker seeking to claim compensation or other relief for an unfair dismissal under Clause 106? I think that is the case. I think it important that one should not in any event in any way exclude him from exercising his rights. If I read the Amendments coupled with the clause aright, I think that nothing in the Amendments nor in the clause would prevent any worker in ordinary circumstances in which he complains, from prosecuting his case in the ordinary way under Clause 106. I think that is the case, but I should like it to be confirmed by the noble Earl if he is in a position to do so.

EARL JELLICOE

Yes, I can give that confirmation.

LORD STOW HILL

I thank the noble Earl.

On Question, Amendment agreed to.

EARL JELLICOE

My Lords, I beg to move Amendment No. 95K.

Amendment moved— Page 116, line 18, leave out (" or ").—(Earl Jellicoe.)

On Question, Amendment agreed to.

EARL JELLICOE

My Lords, I beg to move Amendment No. 95L.

Amendment moved—

Page 116, line 22, at end insert— (" ( ) to any agreement to refrain from presenting a complaint under section 106 of this Act, where in compliance with a request under subsection (4) of section 146 of this Act a conciliation officer has taken action in accordance with that subsection; ( ) to any agreement to refrain from proceeding with a complaint presented under section 106 of this Act, where a conciliation officer has taken action in accordance with subsections (2) and (3) of section 146 of this Act; or ( ) to any agreement to refrain from presenting, or from proceeding with a complaint under section 107 of this Act, where an application under section 81 of this Act has been made to the registrar with respect to the matter to which the complaint relates or, if presented, would relate.").—(Earl Jellicoe.)

On Question, Amendment agreed to.

Clause 158 [Employment under the Crown]:

LORD STOW HILL moved Amendment No. 95F: Page 116, line 26, at end insert (" and in particular section 5 and section 22 of this Act shall have effect in relation to Crown employment and to persons who are for the time being in Crown employment or (where it has ceased) were in Crown employment as they have effect in relation to employment under a contract of employment with a private employer ").

The noble Lord said: My Lords, I can move this Amendment quite shortly because I observe on the Marshalled List Amendment No. 95D, in the name of the noble Lord, Lord Drumalbyn, which, if I understand it correctly, is designed to achieve exactly the same result as I seek to achieve in the Amendment I am moving.

In Committee we had a debate as to whether a civil servant was empowered under the Bill to present a claim in respect of an unfair dismissal, if he asserted that he had been unfairly dismissed. I cited a publication in which a doubt had been expressed whether the Bill was so worded as to confer that right on a civil servant. I ventured to offer arguments which might seem to support that view. I put down this Amendment in order to remove that doubt. I did so by borrowing language from the late Government's Bill which I thought put the matter beyond question, but it seems to me that the following Amendment, in the name of the noble Lord, Lord Drumalbyn, would produce the same result in much shorter and more felicitous language than mine. If the position is as I understand it—I do not know whether the noble Earl will be able to inform me about that—I would then ask leave to withdraw this Amendment.

EARL JELLICOE

My Lords, I recall very well the discussion in Committee on this particular point. The noble Lord, Lord Stow Hill, is quite right to remind us of the circumstances. I believe he asked me two things: first, whether it was the intention of the Government that the unfair dismissal provisions of the Bill should apply to civil servants, and I told him, unequivocally, that the answer was,"Yes ". The noble Lord went on to express some doubt, if that was the intention of the Government, whether the Bill as drafted carried out that intention and I said that I thought so.

I am very glad that I only said that I thought it was so. I went on to say that O'Higgins and Stow Hill were wrong and Jellicoe, as usual, was right. I am glad that I expressed this as a matter of thought because, on further investigation, I have come to the conclusion that Jellicoe was wrong and O'Higgins and Stow Hill were right; we were not carrying out as clearly as we hoped to do the intentions of the Bill. I can confirm to the noble Lord that if he agrees to withdraw this Amendment I shall move the next Amendment, which I think he will find meets the point.

LORD STOW HILL

My Lords, I am extremely grateful to the noble Earl and, in view of what he has said, I beg leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

5.38 p.m.

EARL JELLICOE moved Amendment No. 95D:

Page 116, line 36, at end insert— (" ( ) any reference to an employee shall be construed as a reference to a Crown employee ")

The noble Earl said: I think I need not embroider unduly on this subject. As I have said, we have been into this matter carefully. I have consulted Dr. O'Higgins's article; I have consulted my advisors and it seems that there is indeed a doubt whether the dismissal provisions apply to Crown employees under Clause 158, as drafted. The purpose of this Amendment is to remove that doubt, and I am quite confident that the noble Lord, Lord Stow Hill, will agree with me that it does so. I beg to move.

LORD STOW HILL

My Lords, I rise simply to thank the noble Earl very warmly for putting down this Amendment, which seems to remove any possible doubt. I am most grateful.

EARL JELLICOE

My Lords, with the permission of the House, may I thank the noble Lord, Lord Stow Hill, for thanking me? May I add, and I say this very sincerely, that I am in a double-barrel capacity, not only because of my slight involvement with this Bill but the more so because of my much deeper involvement in the Civil Service Department. I am most grateful to the noble Lord for bringing this matter to our attention.

On Question, Amendment agreed to.

Clause 161 [Northern Ireland]:

EARL FERRERS moved Amendment No. 95H: Page 119, line 21, at end insert (" and it shall be within the power of the Parliament of Northern Ireland to impose or confer duties or powers on the Commission or on the Chief Registrar, whether they are duties or powers similar to those imposed or conferred by this Act or not ").

The noble Earl said: My Lords, I move this Amendment on behalf of my noble friend Lord Drumalbyn. Perhaps I may also refer to Amendment No. 95J. Both these Amendments are what one might call technical, administrative Amendments which refer to Northern Ireland.

As your Lordships are aware, in the main this Bill does not apply to Northern Ireland, but in Clause 161 we are enabling the Northern Ireland Parliament, if it so wishes, to enact legislation on industrial relations. It is of course for the Northern Ireland Government to decide whether or not to do so and whether or not to introduce its own legislation. In case it should decide to go ahead at some time in the future, it would be most convenient for it to be able to use institutions established in this country under this Bill. I should perhaps mention that the Amendments have been prepared after careful consultation with the authorities of Northern Ireland, and the Amendments will achieve a position which is agreeable to them. I hope that with this explanation your Lordships will agree to the inclusion of these two Amendments and approve them.

LORD DIAMOND

My Lords, I am sure that it is right that I should thank the noble Earl for having introduced this Amendment which has been carefully and accurately considered in all respects. I am doubly glad to thank him for moving it, for this is one of those unusual Amendments which improve the Bill and stem from the Government's own thinking. It is rather a pleasant and unusual occasion and I am grateful to the noble Earl.

On Question, Amendment agreed to.

EARL FERRERS

My Lords, I beg to move Amendment No. 95J formally.

Amendment moved—

Page 119, line 22, leave out subsection (2) and insert— (" (2) In sections 120 and 122 of this Act any reference to the Secretary of State, or to a Minister, shall be construed as including a reference to the Minister of Health and Social Services for Northern Ireland (in this section referred to as ' the Northern Ireland Minister '). (3) On each occasion when the Commission make a report to the Secretary of State under section 123 of this Act, the Commission shall make a like report to the Northern Ireland Minister; and the Northern Ireland Minister shall lay a copy of every such report before the Senate and House of Commons of Northern Ireland. (4) Sections 120 and 122 of this Act and subsections (2) and (3) of this section shall be treated for the purposes of section 6 of the Government of Ireland Act 1920 as if they had been passed before the day appointed for that section to come into operation. (5) In the Government of Ireland (Companies, Societies etc.) Order 1922, in Article 22 (which provides for reciprocal status in respect of societies registered in Northern Ireland and those registered in other parts of the United Kingdom), after the words ' Northern Ireland in the first place where they occur, there shall be inserted the words other than a trade union or a branch of a trade union '.")—(Earl Ferrers.)

On Question, Amendment agreed to.

Clause 163 [Interpretation]:

5.42 p.m.

LORD DRUMALBYN moved Amendment No. 95E: Page 121, line 25, leave out (" this section ") and insert (" section 162 of this Act ").

The noble Lord said: My Lords, this is a drafting Amendment which in no way affects the meaning of"collective bargaining"as defined in Clause 163(1); nor does it affect the definition of"procedure agreement"which an Amendment in Committee moved from Clause 163(1) to Clause 162(5). It merely corrects the signpost in Clause 163(1) to the definition of"procedure agreement"so as to take into account that transfer to Clause 162 which now defines collective agreement"and"procedure agreement ". I must apologise for the fact that we overlooked this when we made the rearrangement of definitions, and again I should like to thank the noble Lord, Lord Stow Hill, for bringing it to our attention. I hope that he will not mind my moving this Amendment in preference to his, and that he will feel that this Amendment entirely meets his point while at the same time pointing the way to the definition of"procedure agreement"in terms not only specific but which follow more closely the wording of similar signposts elsewhere in the Bill. I beg to move.

LORD STOW HILL

My Lords, I rise to thank the noble Lord and to intimate that he having put it right in his words it becomes unnecessary for me to move Amendment No. 95C, which does the same thing in different words.

LORD DIAMOND

My Lords, I am sure it will not be wasting the time of the House if I add my own thanks and say how pleasant it is to be back on the old familiar ground where the Government move an Amendment which stems from the careful and hard work of my noble friend Lord Stow Hill to whom we are all deeply indebted.

On Question, Amendment agreed to.

5.45 p.m.

EARL JELLICOE moved Amendment No. 95M: Page 121, line 36, after (" employee ") insert (" subject to subsection (3A) of this section ").

The noble Earl said: My Lords, it might be for the convenience of the House if I were to discuss Amendments 97E and 97G together with Amendment 95M. They all deal with the same point. The purpose of these Amendments is to exclude from the Bill various special police forces like the British Transport Police and the British Airports Constabulary. Your Lordships will doubtless recall that in paragraph 177 of the Consultative Document on the Bill it was stated that it was our purpose to exclude the police from the scope of the Bill. At that time we had in mind primarily the civil police whose inclusion in the Bill would be inappropriate, and I think that this is generally agreed, because of their special responsibilities and because they have their own negotiating machinery established under the Police Acts. As I am sure your Lordships realise, it has been the position since 1919 (when I think was enacted the first Police Act dealing with these aspects) that no member of a police force may be put in a position in which other unions may compete for the right to recruit him and to call him out on strike. I think it fair to say that Parliament, the public as a whole and the police themselves accept this situation. That is why this Bill does not in terms cover the civil police.

As your Lordships know, there are a number of other special police forces in the country. These constabularies play an important ancillary role in the country's police network. Their members are sworn constables; within the areas in which they work they have powers similar to those of the civil police forces; they operate in close liaison with the civil police forces throughout the country and a great many of their activities—for instance, the maintenance of public order and general public services in airports and large railway stations—are quite indistinguishable from those undertaken by the civil police. The other constabularies that I have in mind, the Ministry of Defence Constabulary and the United Kingdom Atomic Energy Authority Constabulary, are engaged in guarding establishments which in some cases are of vital importance from a national point of view and from the security angle. Since the civil police are not covered by the Bill clearly these other special police forces should also be excluded. If they were not excluded I think that we should find ourselves in a situation where one group of policemen not covered by the Bill will be working alongside and doing the same job as another group who were covered by the Bill.

In these Amendments—and I apologise for their late delivery, if that is the proper obstetrical term—we are therefore doing no more than to carry out the Government's intentions as stated in the Consultative Document. But because the members of the special police forces are"workers ", as defined in the Bill, and not, as are the civil police,"office holders ", it is necessary to have a specific exclusion in the Bill if they are not to be covered. With those explanations I commend these Amendments to the House.

On Question, Amendment agreed to.

5.50 p.m.

LORD PLATT moved Amendment No. 95A: Page 121, line 43, after (" employed ") insert (" or in the case of workers whose salary or conditions of service are determined by any Minister of the Crown, such Minister ").

The noble Lord said: My Lords, I rise to propose Amendment 95A which I hope to be able to withdraw very shortly. This Amendment, together with Amendment No. 97A which is also in my name and that of the noble Lord, Lord Beaumont if Whitley, appeared at the Committee stage of the Bill and were fairly fully discussed at that time. I shall not detain your Lordships very much longer with them, except to remind your Lordships that the question which we are raising here is with reference to certain professions, notably the medical profession but also the teaching profession, in which the persons concerned may be technically employed by a hospital board, an executive council, a local education committee or a university, and yet the terms and conditions of service are determined centrally by a Minister of the Crown. This was discussed and the noble Lord, Lord Windlesham, who was speaking for the Government on that occasion (reference, June 10, column 460) gave us an assurance that the Government were aware of the somewhat difficult position which could occur in these circumstances and were giving thought to it.

I am not alone in finding it somewhat difficult occasionally to interpret some of the clauses of this Bill, and it is my belief that Amendment No. 97H, which we shall reach very shortly, really meets these points. If so, this is really a probing Amendment to see whether the Government are able to reassure Lord Beaumont and myself that that is the case.

THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE)

My Lords, this Amendment moved by the noble Lord, Lord Platt, I take it is designed to deal with workers whose salary or conditions of service are determined by Ministers of the Crown though they are not in fact employed by them. The Health Service doctor, I think, is one of the examples he has given and there are, over the range of what I believe is rather strangely called the"public sector ", a number of similar cases. We recognise that there is a problem here. We have designed to meet it by our new Government Amendment No. 97H, which was put down to redeem a promise given by my noble friend Lord Windlesham on Committee, and we believe that that Amendment does deal with the problem.

The particular method adopted by the noble Lord in this particular Amendment is not acceptable to us. It seeks to deal with the problem by altering the definition of"employer ". We all know that no man may serve two masters, but that is precisely what this definition would seek to make him do for the purposes of the Bill. This is designed really as a criticism of the method and not as the object in view. As I understand that the second noble Lord who put his name to this Amendment is in Holy Orders he will, I am sure, urge the noble Lord, Lord Platt, to withdraw it having heard this terrifying possibility.

LORD BEAUMONT OF WHITLEY

My Lords, I am not sure whether Ministers are cast as"God"or"Mammon ".

THE LORD CHANCELLOR

They are Caesar, my Lord.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR moved Amendment No. 95N: Page 122, line 19, after first (" dispute ") insert (" subject to subsection (3B) of this section ").

The noble and learned Lord said: My Lords, I am briefed to accept this Amendment. I will, however, beg to move it on behalf of my noble friend. It is to be read with Amendment No. 97H. The Amendments will extend the definition of"industrial dispute"to cover disputes arising between a Minister and one or more organisations of workers where the Minister is not the employer of the workers concerned in the dispute, but where the Minister is represented on a statutory negotiating body which determines the conditions of the workers concerned or where he has the statutory duty to determine what the conditions of employment of those workers should be. It is therefore a paving Amendment to the Amendment of which I spoke a moment ago, which is designed to meet the precise problem put by the noble Lord, Lord Platt, in the last Amendment. I beg to move.

On Question, Amendment agreed to.

LORD DIAMOND moved Amendment No. 96: Page 122, line 21, at end insert (", or a dispute between one or more workers or organisations of workers,").

The noble Lord said: My Lords, I beg to move Amendment 96 in a territory with which I am not very familiar. The clause with which we are dealing is the definition clause, and at line 21 we are concerned with the definition of an industrial dispute. The essence of the matter is that the industrial dispute definition does not include a dispute between worker and worker. Originally, that is to say in section 5 of the 1875 Act, a trade dispute—and"industrial dispute"in this definition clause is really the same as"trade dispute"in the 1875 Act—was there defined so as to include not only disputes between employers and workers but also disputes between workers and workers. That is the essence of the matter and the Amendment seeks to propose a method of putting that right by including the words or a dispute between one or more workers or organisations of workers ".

Perhaps it would be convenient for your Lordships to consider with this Amendment the following one, because these are two alternative methods of remedying this omission. I am assuming, of course, that the Government wish to remedy this omission because if they did not do so we should be back, so I understand, at the situation that was governed by the law as it was before the relevant 1906 Act, and that would not be, I imagine, the kind of framework which the Government themselves would desire.

There is a particular kind of difficult area of dispute between worker and worker and that is the demarcation dispute. If therefore it was part of the Government's intention that the definition should be widened only to cover that point, then I think the words in the second Amendment would serve that purpose. The second Amendment, Amendment No. 97, would insert at a later point: and also a dispute between one or more workers or organisations of workers "— that is to say, again it is limited to that area; it is not a dispute between worker and employer— where the dispute relates wholly or mainly to the allocation of work as between workers or groups of workers ". In short, we are saying to the Government,"We assume, subject to your correction, that you want the legal framework of this Bill to be brought up to date, in the sense that it should not be left in the position that it was as far back as 1905 ". That being so, the definition of"industrial dispute"ought to go farther than it does in the clause and ought to cover disputes between one or more workers or organisations of workers. If the Government do not feel that the inclusion ought to be as broad as that, and ought to be narrower in the sense that it should apply only to demarcation disputes which involve disputes between worker and worker, then that is an alternative point of view which is catered for in the second Amendment. Accordingly, I move Amendment No. 96.

THE LORD CHANCELLOR

My Lords, we discussed this matter in Committee, and I had hoped that I had persuaded the noble Lord who raised this point (I think it was the noble Lord, Lord Stow Hill) that the Amendment is totally unnecessary and, indeed, would for that reason be totally inappropriate. Demarcation disputes as such are contained within the existing definition of"industrial disputes"at line 30 on page 122 of the Bill. What the Amendment would propose to do is to insert in the definition of"industrial dispute"a dispute in which trade unions, or groups of workers, are engaged in a dispute inter se without the employer being brought into the matter at all. This is inappropriate because, as I ventured to point out in Committee, there are no proceedings under the Bill, and there is no possible set of circumstances which can arise under the Bill in which such a dispute arises and to which the Bill has any application at all. The moment the employer comes in the dispute becomes an industrial dispute and the Bill bites on it. So long as the dispute is purely between workers, without involving any employer at all, there is absolutely no possibility of the Bill applying to it. It therefore follows that this Amendment is inappropriate in a definition clause because there is nothing to which it can relate.

There is no difference en policy between the noble Lord who proposed this Amendment and the Government. There is no desire on the part of the Government to re-introduce a pre-1906 situation here, and it is our belief that it does not do so. This is what I tried to explain in Committee to a noble Lord (I cannot exactly remember whom) who drew attention to the findings of the Donovan Commission and said that what we were legislating here was inconsistent with Donovan, which on paper it is, but that is because we are dealing here solely with the definition clause designed to meet the provisions of this Bill. We are satisfied that there is no set of provisions in this Bill which would conceivably apply to, or bite upon, a dispute which is purely between workers and has no relation to an employer as such. In such a case we think that such organisations of workers could either settle the dispute among themselves or, alternatively, go to the T.U.C. under the Bridlington Rules. If they involved the employer by taking industrial action then it is within the terms of the existing definition without the Amendment, so that the Amendment serves no valid purpose whatever. I hope that with this explanation the noble Lord will feel it possible to withdraw this Amendment.

LORD DIAMOND

My Lords, I am most grateful to the noble and learned Lord. It has been very worth while having this discussion. His recollection is absolutely correct that we had a previous discussion, and the noble and learned Lord offered an explanation then. The unfortunate position is that some of those who are also learned in the law, and advise us, did not take exactly the same point of view as the noble and learned Lord, in that his explanation disposed of all possible future arguments. However, before the noble and learned Lord takes umbrage at that, what he has now said adds considerably to the case. I attached enormous importance to the fact that he said clearly that he does not think that we differed as to policy. He has said that the Government's policy is not to go back to the 1905 situation. He said that if this Amendment were introduced it would be of no practical effect because the Bill does not govern that kind of circumstance. I am grateful to the noble and learned Lord for having explained the matter more fully and more persuasively, and I seek your Lordships' leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

6.7 p.m.

LORD DELACOURT-SMITH moved Amendment No. 97C: Page 123, line 9, at end insert (" or action taken by one or more employers not reasonably necessary for the promotion of the interests of the undertaking or undertakings in relation to which such action is taken with the intention wholly or primarily on the part of one or more of such employers of causing detriment to the interests of some or all of the workers employed or engaged in such undertaking or undertakings.")

The noble Lord said: My Lords, we had the opportunity of touching upon the point of this Amendment at an earlier stage in the proceedings. The argument then advanced was that under this Bill the Government have envisaged action on the part of the trade unions which would take the form of a strike, or an irregular industrial action falling short of a strike, but in the case of action by employers they have referred only to a lockout. It appeared to us that there were a variety of measures which might be taken by employers in the course of disagreements with those who work for them which fell short of a lockout but which ought to be brought within the scope of this Bill. They are in a sense the counterpart on the employer's side of the irregular action short of a strike, to which reference is made in the Bill in respect of trade union action.

The most satisfactory way to try to put this right is to widen the definition of"lockout ". We have taken into account the fact that some action of this sort taken by employers might amount to discrimination under other clauses, but it appears that there is a range of action which employers may take against groups of people or, in some cases, against individuals, which is undertaken in the course of differences of opinion between the two sides in industry and which has not been covered by any of the phraseology at present in the Bill. The list is by no means exhaustive, but we have in mind such courses of action as refusal to employ; limitation or reallocation of overtime; removal of a man from one factory to another in circumstances where such removal is not precluded either by his contract of employment or any collective agreement; re-allocation of jobs so that men or a man might be in a less remunerative position, and so forth. There is the possibility of an employer who has dismissed a man and refused to reinstate him, who in one way or another suggests to, or brings pressure of some kind upon, another employer to abstain from employing the man, or even to dismiss him.

There could be, and in some cases there is, a range of action which ought to be brought within the scope of the Bill, which corresponds on the employers' side to the irregular action short of a strike to which reference is made in the Bill, as one of the weapons in the trade union armoury, and we trust, my Lords, that the way in which we have sought to deal with this necessary matter will commend itself to your Lordships' House. I beg to move.

THE LORD CHANCELLOR

My Lords, in many ways one can sympathise with the object which the noble Lord has stated, but I do not think on reflection that the House will accept that the means chosen Ito effect the object are either appropriate or really acceptable. There is a definition of"strike"in this clause which we are now discussing. There is a definition of"irregular industrial action short of a strike"set out at length in Clause 33(4) and referred to in the definition clause here, and there is a definition of"lock-out"which is set out at length at the top of page 123 to which the noble Lord's present Amendment is a suggested alteration or addition."Strike"is defined as"a concerted stoppage of work "—noble Lords will see the full definition at the bottom of page 123. I think everybody would say that that is exactly what we mean by"strike"in ordinary language. An"irregular industrial action short of a strike"is defined in one of two ways: (a) carried on by a group of workers with the intention of preventing, reducing or otherwise interfering with the production of goods or the provision of services or alternatively— (b)…is carried on in breach of their contracts of employment…". That, again, one can understand, and it has a fairly definable and ascertainable meaning."Lock-out ", as defined at the top of page 123 is: action…which consists of the exclusion of workers from…places of employment or of the suspension of work in one or more such places…". The full definition will be seen in the text. That I suppose is exactly what ordinary people understand by a lockout. In other words, these definitions of"strike ","irregular action short of a strike ", and"lock-out"are designed to carry the meaning which ordinary language would probably assign to them.

The noble Lord, in a desire to penalise—which may be highly desirable—a number of other actions by the employer which he claims to be analogous to the"irregular industrial action short of a strike ", which is defined in Clause 33(4), has proposed to include: action taken by one or more employers not reasonably necessary for the promotion of the interests of the undertaking or undertakings in relation to which such action is taken with the intention wholly or primarily on the part of one or more of such employers of causing detriment to the interests of some or all of the workers employed or engaged in such undertaking or undertakings. I can conceive this particular phrase as giving rise to almost endless dispute and controversy in the courts. I simply do not understand how a court could apply this definition in places where the word"lockout"is referred to throughout the Bill. You only have to look at the clause dealing with unfair dismissal, Clause 25, to see how inappropriate those words would be if you tried to apply them in any detail to a concrete situation of alleged unfair dismissal in the course of a lock-out. The fact is it is not a good way of penalising employers or anybody else to introduce, by way of addition, this totally inappropriate definition so as to use words in a sense wholly different from the way in which they are employed in ordinary language. If I may develop that, the noble Lord seems to think, and I think wrongly, that the Act does not bite on this kind of action by an employer, the analogue to the irregular industrial action short of a strike in Clause 33(4). The definition in paragraph (b) deals with breach of contracts of employment as does the elaborate code about unfair dismissal, which can bite upon the employer and which is dealt with in a whole sequence of clauses—Clauses 22, 23, 24, 25, in which unfair dismissal becomes an unfair industrial practice and is penalised as such and gives rise incidentally to a direct claim for compensation at pursuit of the individual worker. That is where you want to look for that kind of analogue. Similarly you find the kind of thing which is complained of against employers in actual practice, the withholding of information, for instance in the course of negotiation. That again is the subject of a whole sequence of individual clauses. It is beyond question that if either the employer or the trade union breaks a collective agreement in writing which does not contain the disclaimer clause, either the employer or the trade union, whichever it may be, is subject to the penalties or the sanctions of the legislation, but, with respect, what you do not get here is any advantage. I can see considerable disadvantage but I cannot see any corresponding advantage by judging the definition of lock-out so as to include various types of undesirable conduct by employers which would then be applied rather inappropriately wherever the word"lock-out"is used throughout the text of the Bill.

There is of course an additional and I think rather important safeguard against the kind of conduct which the noble Lord has in mind to condemn, and which I would join with him in condemning. There is going lo be a Code of Industrial Relations Practice and there is also the fundamental provision of all the sanction clauses of the Bill that the remedy, if there be a remedy, is only available when it is just and equitable that the remedy should be granted. It is of course quite clear that if an employer indulged in the kind of conduct which the noble Lord envisages he would not be able or certainly not be able easily to obtain any remedies under the Act because he was barred by the just and equitable clause and if he were in breach of the code of practice, as he almost certainly would be if he were guilty of these malpractices in a deliberate way, he would find it almost impossible to secure his remedy. The result is that—I do not complain that the noble Lord should condemn practices of this kind—the object of the Bill is to secure good industrial relations and it would be entirely wrong if one encouraged actions of this kind in the course of such a Bill.

I do not quite know how frequently the noble Lord claims his various malpractices occur. I should imagine that they were extremely rare. But I have no direct evidence of it, and the noble Lord has not adduced any. What I feel reasonably confident of is that he has proposed an inappropriate remedy for malpractices of this kind, while the Bill has adequate safeguards which, when properly analysed, indicate no inequity between the two sides of industry proposed.

LORD BERNSTEIN

My Lords, so far as I could gather, the noble and learned Lord rather accepted the possibility of malpractices, and he spoke of remedies. Therefore there must be a remedy for something. He seemed to admit that there was a need for a remedy for what could be an unfair industrial practice. Could the noble and learned Lord explain where that is to be found in the Bill?

THE LORD CHANCELLOR

My Lords, if with the leave of the House I may reply to that question, the answer is that it can be found in the procedural clauses where the remedies are given. The clauses from about Clause 100 onwards explain where the remedies for an unfair industrial practice are. They apply equally to employers, trade unions and individuals, and consist in (a) a declaratory judgment, (b) compensation, or (c) an order in the nature of an injunction, which in some ways is the most effective of all applied to an employer who is indulging in a continuing practice. All those are to be found in the clauses of the Bill from Clause 100 onwards. There is, I think, a separate clause dealing with the particular question of unfair dismissal. But it is in that sequence of clauses in the Bill that the noble Lord will find what he is asking for. However, with respect, you will not do any good by trying to pop it into the definition clause, which is not a sanctions clause at all.

LORD DELACOURT-SMITH

My Lords, I think the House is bound to feel some sense of disappointment at the obesrvations the noble and learned Lord the Lord Chancellor has made, but I think he has accepted that the problem to which we are drawing attention in this Amendment is a real problem and that it is one which is not covered in the Bill. Nobody can say how widespread a problem it is, but we have on several occasions at earlier stages in the Bill taken the view, urged on by noble Lords representing the Government, that if there is the possibility of even one case, or a small number of cases, where injustice may arise, provision should be made for it. Therefore the fact that it is not possible to demonstrate that these malpractices are widespread should not be regarded as a sound argument. Since it is accepted that there are malpractices, and that they are not all by any means covered in the Bill—the references which the noble and learned Lord made, for example, to dismissals covered only a part, and indeed not the main part, of the examples that I gave—surely it is incumbent upon the noble and learned Lord to advise the House, even at this late stage of the proceedings on the Bill, how this gap in the Bill can be remedied.

There is, I submit, clearly no provision in the Bill to stigmatise as unfair action which I think your Lordships would agree would be unfair: for example, for employers collectively to abstain from employing a particular individual; for an employer, as I suggested, having had experience of a man whom he might regard as too zealous a trade unionist, to suggest to other employers that it would not be wise to employ that man when he is on the labour market; restriction of normal promotion opportunities for an individual or a group of individuals, or all the other possible malpractices

to which I drew attention. I admitted in making my case that there might well be some of these which could be regarded as discrimination against the individual perhaps for trade union activities, but I wish again to submit to your Lordships that it is clear from the discussion we have had that there is an admitted gap in the Bill. I regret the fact that the noble and learned Lord has devoted a good deal of his argument, though not the whole of it, to the inappropriateness of this particular method of trying to close the gap, without suggesting to your Lordships an alternative method by which the gap might be closed.

6.26 p.m.

On Question, Whether the said Amendment (No. 97C) shall be agreed to?

Their Lordships divided: Contents, 40; Not-Contents, 94.

CONTENTS
Archibald, L. Douglas of Barloch, L. Plummer, Bs.
Balogh, L. Garnsworthy, L.[Teller.] Popplewell, L.
Bernstein, L. Greenwood of Rossendale, L. Ritchie-Calder, L.
Beswick, L. Hilton of Upton, L. Royle, L.
Blyton, L. Jacques, L. Shackleton, L.
Brockway, L. Janner, L. Slater, L.
Brown, L. Kilbracken, L. Sorensen, L.
Buckinghamshire, E. Lindgren, L. Stocks, Bs.
Burntwood, L. Longford, E. Stonham, L.
Burton of Coventry, Bs. Maelor, L. Stow Hill, L.
Champion, L. Mais, L. Strabolgi, L.
Collison, L. Milner of Leeds, L. Taylor of Mansfield, L.
Delacourt-Smith, L. Phillips, Bs. [Teller.] Wells-Pestell, L.
Diamond, L.
NOT-CONTENTS
Aberdare, L. Digby, L. Hood, V.
Ailwyn, L. Drumalbyn, L. Hylton-Foster, Bs.
Alport, L. Dundee, E. Jellicoe, E. (L. Privy Seal.)
Auckland, L. Elliot of Harwood, Bs. Kinnoull, E.
Balfour, E. Emmet of Amberley, Bs. Lansdowne, M.
Barnby, L. Exeter, M. Latymer, L.
Belhaven and Stenton, L. Falkland, V. Lauderdale, E.
Belstead, L. Ferrers, E. Loudoun, C.
Berkeley, Bs. Ferrier, L. Lucas of Chilworth, L.
Bessborough, E. Fortescue, E. MacAndrew, L.
Birdwood, L. Fraser of Lonsdale, L. Macpherson of Drumochter, L.
Brentford, V. Garner, L. Massereene and Ferrard, V.
Bridgeman, V. Goschen, V. [Teller.] Milverton, L.
Brougham and Vaux, L. Gray, L. Monck, V.
Burton, L. Grenfell, L. Mountevans, L.
Byers, L. Gridley, L. Mowbray and Stourton, L.
Carrington, L. Grimston of Westbury, L. Northchurch, Bs.
Clwyd, L. Hacking, L. Oakshott, L.
Coleraine, L. Hailes, L. Platt, L.
Conesford, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) Radnor, E.
Courtown, E. Rankeillour, L.
Craigavon, V. Hanworth, V. Rochdale, V.
Croft, L. Harvey of Prestbury, L. Ruthven of Freeland, Ly.
Daventry, V. Hatherton, L. St. Aldwyn, E.
Denham, L. [Teller.] Henley, L. St. Just, L.
Derwent, L. Hertford, M. St. Oswald, L.
Sandford, L. Strang, L. Tweedsmuir of Belhelvie, Bs.
Seear, Bs. Strange, L. Vivian, L.
Selkirk, E. Strange of Knokin, Bs. Windlesham, L.
Sempill, Ly. Strathcarron, L. Yarborough, E.
Skelmersdale, L. Swaythling, L. Young, Bs.
Somers, L. Tweedsmuir, L.

On Question, Amendment agreed to.

6.33 p.m.

LORD PLATT moved Amendment No. 97A: Page 123, line 24, at end insert (" and shall include the appropriate side of any Whitley Council or committee thereof ").

The noble Lord said: My Lords, I feel I am going to withdraw this Amendment, but I should like to be sure that what the noble and learned Lord told us about Amendment No. 97H having met my previous Amendment No. 95A, which of course I accepted, would also apply to cases where the Whitley Council rather than the Ministry or Department itself is concerned in determining the terms and conditions of service. I beg to move.

THE LORD CHANCELLOR

My Lords, before I move Amendment No. 97H I shall have to get a fairly definite answer for the noble Lord. It was certainly designed to meet all the noble Lord's objections under this head, but how far it will actually do so I must ask for a few minutes' grace in order to find out.

LORD PLATT

My Lords, in that case I am quite happy to withdraw my Amendment.

Amendment, by leave, withdrawn.

LORD DIAMOND moved Amendment No. 97D: Page 123, line 41, leave out (" a group of ") and insert (" one or more ").

The noble Lord said: My Lords, I beg to move Amendment No. 97D. It reverts to a topic which we have very recently discussed, which gave rise to some considerable difference of view. I am compelled to pursue it not with a view to pressing this Amendment unduly or to dividing the House, but to ascertaining the meaning of the definition as it now stands and whether there is any need to alter it in order to achieve the purposes which I think are common both to the Government and the Opposition.

Line 41 deals with the definition of"strike "—a most important definition. The definition is given as"a concerted stoppage of work by a group of workers ". Those are the only words I need bother your Lordships with. The Amendment seeks to insert instead of"a group of"the words"one or more ". You will immediately say that the concept of a concerted stoppage of work by one worker is an unsual one, and I will grant that immediately, and underline it immediately to indicate to your Lordships the kind of difficulty we are in. A strike is certainly a concerted stoppage. It occurs where a number of workers all come out together from a particular factory shop floor, or whatever the case may be.

The Bill provides, by way of declaring what in any event the present law is, that if a person about to strike gives notice of the same duration that he would have to give in order to terminate that employment, that is a beneficial thing to do. That is the effect of it without going into too much detail; and it is right therefore that, wherever possible, strikers should give notice to strike. We are aware of the fact that a group of workers may, and in many cases will, include workers on different periods of notice in their contracts of employment. So one is confronted with the problem, how do all the workers in this particular physical area stop work at the same time and all give notice, when the notice is for varying periods?

One of the alternatives put forward, in fact by the noble and learned Lord himself, I believe, was that if the vast majority were on one week's notice and there is a very small minority on two weeks' notice, that small minority could walk out later. Supposing that small minority were so small as to be one person? Supposing that one person was the storekeeper on the floor of a factory where everyone else was a machinist, and all machinists were subject to one week's notice and the storekeeper was subject to two weeks' notice?

The suggestion is that the purpose of giving due notice would be achieved by giving one week's notice in respect of the 100 workers, shall we say, who are machinists, and two weeks' notice in respect of the one storekeeper. The 100 machinists would walk out after one week and the single storekeeper would walk out after two weeks, having given a strike notice. If that strike notice is to protect him he has to be striking, not giving notice to terminate his employment; one person joining his mates in a strike one week after the rest of them have withdrawn their labour. Therefore, in order to achieve that purpose, it seems to me that a stoppage of work by a group of workers should possibly include the phrase"the stoppage of work by one or more workers"so that if one worker—our storekeeper in question—walks out he is still striking and not giving up his job.

It may be that it is not necessary to introduce those words because a concerted stoppage may not, for aught I know, mean that kind of stoppage at which everybody stops work at the same time. It may mean that all one has to do is to concert stoppage jointly and one can then walk out at different times. What effect that would have on the strike is a different matter. What effect it would have on the employer is a different matter if one adopted the alternative suggestion put forward, where 100 people walked out and the employer had to keep the whole of his factory open so that there would not be a lock-out against the one storekeeper remaining. We are in a difficulty in reconciling the concept of a strike where all walk out at the same time, and that of giving due notice, which is a necessary and wise precaution—due notice being a varying period of notice because the strikers who are all intending to go out at the same time are on different periods of notice.

The noble and learned Lord will appreciate that I have approached this matter sotto voce, treading with care; Agag has nothing on me.

I hope the noble and learned Lord will recognise this problem, and will be good enough to help us with his knowledge of the meaning of this clause and the impact on the law, as I have no doubt he wishes to help us to resolve this issue, which I think I have explained sufficiently. I beg to move.

THE LORD CHANCELLOR

I am grateful to the noble Lord, whose delicate gait we all admire, for explaining the exact point of this Amendment. I am bound to say that it baffled me and my advisers, because he is not proposing to leave out the word"concerted ", he is just inserting the phrase"a concerted stoppage of work by one or more workers ". I was troubled, as he has anticipated, by the thought that it was difficult to see how one worker could"concert"a stoppage. I was unable to find an answer, although I did have a fleeting glimpse of a managing director suddenly withholding his labour in order to bring pressure on the board to improve his pension rights; but I concluded that was not a strike or indeed a"concerted stoppage"unless he was a very unusual kind of person.

Therefore, I do not think this Amendment makes sense. The noble Lord, Lord Diamond, asked me what I think was a legitimate question: supposing in a strike all the workers did not come out at the same time, could it be said to be a"concerted stoppage?". My answer would be in the affirmative, if it was working according to a concerted directive or plan. I thought that the noble Lord, with his command of English, unwittingly supplied the answer to his own question when he put to me the conundrum of what would happen if one worker came out a week afterwards because his contract of employment required him to do so. He described it as joining the strike. I think that is exactly what he would be doing. In other words, he would be joining the concerted stoppage of work, and if he gave due notice he would be protected to the same extent that anyone else would be protected. I am quite sure that this Amendment will not do, and I do not think the problem will be a real one in practice. I accept the general definition of"concerted"which the noble Lord tentatively and with Agag-like gait proposed for my acceptance.

LORD DIAMOND

My Lords, this is a happy occasion, because both the noble and learned Lord the Lord Chancellor and I are in entire agreement that the Amendment will not do. The Amendment was not put in so that it would do; it was put in so that it would elicit from the noble and learned Lord, a statement which I find wholly acceptable. I am grateful to him. With your Lordships' permission I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE LORD CHANCELLOR

At this point I have a manuscript Amendment by the noble Lord, Lord Diamond.

LORD DIAMOND

My Lords, I beg to move yet another Amendment which I hope will find acceptance by the Government. It is a manuscript Amendment referring to the same definition of"strike ", and is: Page 123, line 42, leave out second (" of ") and insert (" or "). That will mean that instead of the words in contemplation of furtherance we shall have the words in contemplation or furtherance ". I am encouraged to put forward the Amendment because I have been told by the noble and learned Lord that these are normal words which are regularly used in a wide variety of statutes. I beg to move.

THE LORD CHANCELLOR

I accept this Amendment. The noble Lord has discovered a misprint in the Bill. Lest it should be thought that it is necessary formally to amend misprints, I believe it is possible to improve the printing of a Bill without committing a misdemeanour and without Amendment, but I am very grateful to the noble Lord for having drawn attention to the misprint and I accept the Amendment.

LORD DRUMALBYN

My Lords, Amendment No. 97E is consequential on Amendment No. 95F. I beg to move.

Amendment moved— Page 124, line 14, leave out (" next following subsection ") and insert (" following provisions of this section ").—(Lord Drumalbyn.)

LORD STOW HILL had given Notice of Amendment No. 97F:

Page 125, line 2, at end insert— (" and (c) the reference to a trade dispute in section 3 of the Conspiracy and Protection of Property Act 1875 shall be construed as a reference to an industrial dispute as defined in subsection (1) of this section,")

The noble Lord said: My Lords, the repeal of the Trade Union Act 1871 leaves the expression"trade dispute"as used in Section 3 of the Conspiracy and Protection of Property Act 1875 without a definition. This Amendment seeks to define it as an industrial dispute as defined in this clause. The Government have put down an Amendment (Amendment No. 98L, to Schedule 8), which indicates that they feel this is a necessary change—and upon the assumption that I am right in so supposing, and that they propose in due course to move Amendment No. 98L, I will not move my Amendment.

THE LORD CHANCELLOR

My Lords, the purpose of this Amendment is acceptable. It is consequential on the repeals, and it is the intention of the Government to propose an Amendment at the appropriate place, which is in Schedule 8. On that assurance, I hope that the noble Lord, to whom I give my thanks for drawing my attention to this matter, will withdraw this particular Amendment.

LORD STOW HILL

My Lords, I am much obliged to the noble and learned Lord. I ask leave to withdraw.

Amendment, by leave, withdrawn.

LORD DRUMALBYN

My Lords. I beg to move Amendment No. 97G. This is another Amendment consequential on Amendment No. 95M.

Amendment moved—

Page 125, line 9, at end insert— (" (3A) Notwithstanding anything in subsection (1) of this section, for the purposes of this Act—

  1. (a) service as a member of a police force, or as a special constable or as a member of any constabulary maintained by virtue of an enactment (including any local or private Act), or in any other capacity by virtue of which a person has the powers and privileges of a constable, shall not be regarded as work falling within paragraphs (a) to (c) of the definition of"worker"in that subsection, and accordingly a person shall not be regarded as a worker by reference to any such service; and
  2. (b) in the definition of"employee"in that subsection the reference to a contract of employment does not include a contract to perform any such service as is mentioned in the preceding paragraph.")—(Lord Drumalbyn.)

THE LORD CHANCELLOR moved Amendment No. 97H:

Page 125, line 9, at end insert— (" (3B) For the purposes of the definition of"industrial dispute"in subsection (1) of this section a dispute between a Minister of the Crown and one or more workers or organisations of workers shall, notwithstanding that the Minister is not the employer of any of the workers to whom the dispute relates, be regarded as a dispute between an employer and the worker or workers, or the organisation or organisations, in question if the dispute relates—

  1. (a) to matters which have been referred for consideration by a joint body on which, by virtue of any provision made by or under an enactment, that Minister is represented, or
  2. (b) to matters in respect of which a settlement cannot take effect without the exercise of a power conferred on that Minister by or under an enactment ").

The noble and learned Lord said: My Lords, I rise to move this Amendment—I hope correctly. It is the one I referred to some time ago when I was dealing with the noble Lord, Lord Platt, and the noble Lord, Lord Beaumont of Whitley. I have now been advised that the Whitley Council point is expressly dealt with under paragraph (a) of the proposed Amendment, and the noble Lord's point is therefore covered. I hope that that will satisfy him. I beg to move.

LORD PLATT

My Lords, I am very much obliged to the noble and learned Lord.

Clause 164 [Power to limit certain provisions of Act to major undertakings]:

6.54 p.m.

LORD STOW HILL moved Amendment No. 97B: Page 126, line 22, leave out (" 51 and 102(1)(b) ") and insert (" and 51 ").

The noble Lord said: My Lords, this is a short point and I can explain it quite shortly. Clause 164 provides that, at any rate for a period of time, complaints are not to be brought under certain clauses of the Bill, which clauses are enumerated in subsection (2) of Clause 164. The clauses under which complaints are not to be brought include Clause 102(1)(b). In effect, the power given to the Secretary of State under Clause 164 is to prevent people from coming to the Industrial Court and asking for relief to which they would otherwise be entitled. I believe that the general object of the clause, with which I do not quarrel, is to prevent an excessive build-up of cases and enable them to be spaced out, no doubt the Orders in Council, the Statutory Instruments, being cancelled as and when the Court becomes able to cope with the volume of cases which come before it.

The purpose of the Amendment is to provide that the prohibition should not be applicable to cases which are brought under Clause 102(1)(b), and if noble Lords will look at that provision they will see that it is the provision which enables a complaint to be made if an employer has failed to disclose the information he is put under an obligation to disclose under Clause 56. If the parties have in some cases to be prevented, at any rate for the time being, from approaching the Court for the reason I gave, I nevertheless submit that the provision that the trade union side of the table in negotiations should be entitled to certain information is of such paramount importance that it would not be in the public interest or conduce to orderly negotiation if, in a given case, they were prevented by Statutory Instrument from seeking to enforce that right before the Industrial Court under Clause 102(1)(b).

This is a short point. We have already discussed in some considerable detail the provisions putting on employers an obligation to supply information, and the importance of those provisions has been stressed, and I believe accepted, on all sides of the House. I submit therefore that the Statutory Instrument ought not to be one which might apply to complaints under that clause, and I accordingly move to omit from subsection (2) the reference to that clause.

LORD DRUMALBYN

My Lords, the effect of accepting this Amendment would be to remove the power of the Secretary of State to impose a threshold on the provisions for disclosure of information to trade unions; that is to say, that he could not make an order precluding the Industrial Court from considering a complaint under Clause 102(1)(b) unless a specified number of persons were employed in the undertaking. The noble Lord will recall that the arguments for a threshold are based on considerations of case-load—the number of cases that would be likely to come to the courts if one were not to impose a threshold—and limiting the load of the court by imposing one.

The noble Lord, Lord Diamond, has already quoted what the Solicitor General has said, and of course we must all recognise that this is new legislation, and when there is new legislation of this kind it is difficult to predict with any accuracy the number of cases that will arise under each jurisdiction. Especially at an early stage of the Bill's operation, at the time when the institutions will be new, relatively untried and getting into their stride, as it were, it is important that the Government should have some means of controlling the case-load of the Court and of industrial tribunals. Otherwise, there is a danger of these bodies being swamped, perhaps in consequence of a single jurisdiction, and prevented from the exercise of any of their jurisdictions effectively. There may be a very heavy case-load in one jurisdiction (this is a matter we discussed at length, of course, on the question of dismissal) and that might effectively hold up the work of the whole field.

I believe that noble Lords opposite accept these arguments in principle, and they seem to accept this in respect of the various clauses mentioned in subsection (2), with the exception of the ones to which the noble Lord, Lord Stow Hill, has referred. I do not think there is a difference of principle between us on this point. I can appreciate that the case-load argument is not so compelling in the case of disclosure as in some other instances—particularly, for example, trade union recognition. But in these matters any Government must play safe, just as it is right for the Opposition to push the Government to go a little further on a particular question. The Government feel that the importance of providing for the efficiency of the Court in its early stages is of overriding importance. It is of course true that the obligation will remain. The only point is that complaints will not be able to be brought.

The Government feel that the caseload arising under Clauses 56 and 102(1)(b) will probably not be very great but we may easily be wrong, so a reserve power such as this is a useful safeguard. If such a safeguard were not to hand, not only could the Industrial Court itself be in difficulties but the result might be a higher threshold for the other provisions mentioned in subsection (2). What the Government anticipate is that Clauses 56 and 102(1)(b) may be introduced with a threshold, which need not be as great as that for the recognition provisions; and in any event it will not be higher than the threshold for recognition. If, as is probable, there is no case-load problem, then the threshold can be lowered, and probably removed. There is no reason why a threshold here should necessarily require a complimentary threshold elsewhere.

As I have said, noble Lords opposite will appreciate that although trade union firms under the disclosure threshold will not be able to enforce their rights in the Industrial Court so long as the threshold remains, the duty imposed on employers under Clause 56 still applies as a moral obligation. Trade unions denied information will be able to point to the code of practice as well as to Clause 56, and of course this can have an indirect effect on other matters arising. I am not saying that such trade unions will be as strongly placed as trade unions in larger firms, but we do not think the disadvantage will be very great. So we think it right to take this power to impose a disclosure threshold, simply as a safety valve to guard against an unexpected case-load. Should the threshold prove unnecessary we shall reduce it or remove it with appropriate speed, and on that assurance I hope noble Lords will not press the Amendment.

LORD STOW HILL

My Lords, I hope the noble Lord will not think that I am being obstinate, but it emerges from his own speech that this is simply a question of balance. If one looks at Clause 164, one sees that, apart from Clause 102, six other clauses are referred to. I do not ask the Government to forgo their power in regard to those six other clauses but simply in relation to this Clause 102. The reason is that that clause is, I submit, of quite transcendent importance. I personally think that the provisions for giving information are among the most important provisions in the Bill. If the noble Lord were able to say that if we do not take power in relation to that clause as well there may easily be a log jam, and the Court may easily be hopelessly cluttered up, then I would withdraw the Amendment. But it emerges from the noble Lord's own speech that this is a question of balance, and I should have thought it desirable at least to take out that clause. If the threshold is applied in each of the other cases, with great respect to the noble Lord, the chance of a build-up in the case-load simply because Clause 102 is excluded is very small indeed.

I listened carefully to the noble Lord, and I thought I detected a degree of uncertainty. I did not think he was strongly convinced, and I urgently ask him to say that this is not unreasonable. I make a request which is thoroughly in accord with the purposes of this Bill, which is to try to get orderly negotiating arrangements.

LORD DIAMOND

My Lords, I am bound to support what my noble friend Lord Stow Hill has said and to appeal to the noble Lord to reconsider what he has said, especially at this hour, which would be awkward for a Division, but which nevertheless—

SEVERAL NOBLE LORDS

No!

LORD DIAMOND

My Lords, if it is not too awkward, then I withdraw that argument immediately, but I much prefer persuasion to force, as the noble Lord may have gathered from our approach to this Bill. May I underline what my noble friend has said so well? If the noble Lord will be good enough to look at subsection (2), of all the provisions in that subsection we are seeking to remove only this one. It is an extremely marginal point, and we are seeking it in an area where we feel that the Government are not helping in the reduction of inflation as much as they should. The third, and very telling point, is that this method of threshold which he has chosen—and I understand it—means that one eliminates those firms who are likely to transgress and leaves in those firms who are not likely to transgress. Of course, the German experience is that the biggest firms already give information and already have a practice of industrial relations which, broadly, is satisfactory. All one would wish to do so far as the code of practice is concerned is, as elsewhere in industry, to invite the worst to come up to the levels of the best and there would then be no problem at all.

I am underlining what my noble friend has said, and saying it very shortly because of the hour, and I hope that the noble Lord will be able to meet us on this point.

LORD DRUMALBYN

My Lords, with the leave of the House may I say another word on this point? I would be very glad to look at it, but I want to emphasise to the noble Lord that this is a discretionary power. I should also like to point out to the noble Lord that he himself has said that the case is very marginal. But there is no means of telling, and when we are introducing new legislation of this kind we do not know how many cases are likely to arise. The reasonable thing is that at the start of legislation of this kind we should see how we get on.

The noble Lord is aware that the information side is particularly difficult. He now says that the test is one of size: before, he said that the test was one of confidence. If there is confidence you do not need the powers. The test here is of size, but what he is saying is that the bigger ones are more likely to produce the information than the other ones.

I would emphasise that this is the case in the information sphere. We know that we are in some difficulty here because the Commission on Industrial Relations is itself looking into the whole question of information at this moment, so that this is perhaps one of the most uncertain spheres in the whole Bill, and where there is uncertainty of this kind it is reasonable to give a discretion. That is why we are asking for the power to impose a threshold here—nothing more than that. Having said that, as the noble Lord is aware, we are looking at the threshold figure which is actually in the Bill, and we shall look at this at the same time.

LORD STOW HILL

My Lords, in view of what has been said I ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN

My Lords, I beg to move that further consideration of this Bill he adjourned for one hour for consideration of the Medicine Bill.

Moved, That the further consideration of the Bill be adjourned.—(Lord Drumalbyn.)