§ 4.14 p.m.
§ House again in Committee.
§ EARL JELLICOE moved Amendment No. 275L:
Page 133, line 27, leave out sub-paragraph (1) and insert—
("(1) Any award of compensation made by the Industrial Court in proceedings in England or Wales shall have effect for all purposes of enforcement, and of devolution on death or otherwise, as if it were a judgment for the like amount in the High Court or the appropriate County Court (as the case may be) as may be determined in accordance with Industrial Court rules").
§ The noble Earl said: I suggest that this Amendment, which is the substantive one, might be considered with Amendment 36 276AA, which is consequential. The Amendments deal with the enforcement of awards of compensation by the Industrial Court. Amendment No. 275L provides for the enforcement through the High Court or the county court, depending on what is said in the rules to be made by the Lord Chancellor. Paragraph 24 of Schedule 3 at present leaves the enforcement of Industrial Court awards of compensation entirely to the county courts. This is a very considerable discretionary power. Where a large award of compensation was made under the Bill it would mean that the county court judge would have to decide whether such an award should be enforced and the sum involved could be greatly in excess of his normal jurisdiction.
§ As your Lordships may recall, the County Courts Act of 1959, as amended, provides that the county court shall not hear actions in contract or tort where the amount of the debt, demand or damages claimed is more than £750. Cases involving larger amounts go to the High Court. Under this Bill as at present drafted, the result might be that a case would be argued before the county court after being argued before the Industrial Court, and most of your Lordships would probably agree that this would be undesirable. These Amendments, if the Committee agree to them, will ensure that awards of compensation made by the Industrial Court will be enforced by a court accustomed to dealing with and enforcing awards of the sort of amount which would be involved. I beg to move.
§ On Question, Amendment agreed to.
§ Amendment moved—
Page 133. line 36, leave out sub-paragraph (3) and insert—
("(3) In the preceding sub-paragraphs any reference to an award or order of the Industrial Court—
- (a) does not include any award or order which, on being reviewed, has been revoked by the Court, and
- (b) in relation to an award or order which, on being reviewed, has been varied by the Court, shall be construed as a reference to the award or order as so varied.")—(Earl Jellicoe).
§ On Question, Amendment agreed to.37
EARL JELLICOE moved Amendment No. 276BB:
Page 134, line 8, leave out ("assizes and quarter sessions") and insert ("certain courts").
§ The noble Lord said: I would again suggest that your Lordships might like to consider with this Amendment No. 276CC. These are purely drafting Amendments which take account of the new judicial machinery established under the Courts Act 1971. The method of enforcement will remain completely unchanged if these two Amendments are agreed to. On the assurance that they are purely drafting I hope that the Committee will agree to them.
§ On Question, Amendment agreed to.
Page 134, line 9, leave out from ("those") to end of line 10, and insert ("provisions any reference to a court of assize or to the Crown Court")—(Earl Jellicoe.)
§ On Question, Amendment agreed to.
§ On Question, Whether Schedule 3, as amended, shall be a Schedule to the Bill?
§ 4.19 p.m.
§ LORD STOW HILL
I would like to raise another constitutional question, of which I have given the noble and learned Lord notice. It is not violently dissimilar to that which I raised a short time ago with reference to the Industrial Court. Both the last Government and the present Government would desire that the Commission on Industrial Relations should be a body which commands sympathy and inspires confidence on both sides of industry and in the public. The respective Governments assigned very different roles to the Commission. It is a matter of Party controversy as to which of the two was right and I do not here enter into that controversy at all. The present scheme which sets up the constitutional framework of the Commission is described and set out in Part III of Schedule 3. That scheme follows closely although it is not completely identical with, the constitutional scheme which was set out in the last Government's Bill. The question that I should like to raise with the Committee is whether it is right as it at present is formulated.
38 As appears quite clearly from paragraph 29(2) of Schedule 3, it is desired that the Commission shall be an independent body. It is now to be a statutory body. I think I am right in saying that hitherto the existing Commission has taken the form of a Royal Commission. Now it is to be constituted by Statute. Paragraph 29 provides that the Commission is not to be regarded as the servant or agent of the Crown or as enjoying any special governmental position. It is to be an independent body, and that, clearly, was the desire of both Governments. One respectfully submits to the Committee that unless it is a body which both sides of industry regard as independent in a broad sense it will not really be able to address itself to the tasks imposed upon it by this Government, or which would have been imposed upon it in a very different form by the last Government.
The Government having in that paragraph provided that the Commission is not to be regarded as the servant or agent of the Crown, and is in other words to be an independent body (if I may paraphrase), one then looks at other provisions of Part III of the Schedule to see whether the Government nevertheless retain some measure of control over it and, if so, in what measure they reserve to themselves the right to control it. And are they right in so doing? I emphasise that this is a question which arises on the present Government's scheme and would have arisen on the scheme of the previous Government, because although, as I have said, they are not identical they are closely similar. To begin with, if one looks at paragraph 30(5) one again sees a power to dismiss a member of the Commission. Members are to be appointed as persons who hold qualifications which enable them to discharge the special tasks which will be imposed upon the Commission. In the case of the Commission it is the Secretary of State not the Lord Chancellor acting together with the Secretary of State, but the Secretary of State alone—who is to be able, by notice in writing, to terminate the appointment of any member of the Commission who isin the opinion of the Secretary of State. unfit to continue in office or incapable of performing his duties as a member.39 That is the same language as was used with regard to the Industrial Court before the Amendment was carried in this Committee a short time ago, changing that language to words which referred to"incapacity"and"misbehaviour".
I think I am right in interpreting the minds of the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Drumalbyn, in saying that they agreed with me with regard to the members of the Industrial Court, to the length at any rate of accepting that the power of removal must be a very restricted one. The noble and learned Lord explained to the Committee that the word"incapacity"as he thought it would be interpreted by the courts would be limited to something in the nature of a physical incapacity. Therefore the first question I ask is this: although I agree that the Commission is in no sense a judicial body, would it not be right to limit the power to remove members of the Commission in the same way? The noble and learned Lord may answer"No"because one is a judicial body and the other is an administrative and executive body; but am I not right in pointing out and emphasising that although one is judicial and the other is administrative they have the common property that they cannot go about the discharge of their functions unless they are universally respected and trusted?
Should the worst eventuate, the sort of thing which might happen over the years with regard to the power to dismiss as it is at present contained in Part III of the Schedule, surely is this. Suppose one gets a member of the Commission who obviously holds views which are unpopular in certain sections, say, of the other place, or quite unpopular and unacceptable to public opinion at large, and he attracts to himself the reputation of being either an iconoclast or a diversionist or a person who really cannot see eye to eye with what other people regard as common-sense approaches. In my submission it would be most unfortunate if the Secretary of State, a purely executive Minister who is not invested with the unique position which the noble and learned Lord the Lord Chancellor holds, were to go down to his place in the House of Commons and find a Question 40 put down to him as to whether he would not remove such and such a member of the Commission on the ground of incompetence. I am certain that the noble and learned Lord will agree with me at once that if that were to happen it would be most unfortunate and would introduce a wholly undesirable atmosphere into the functioning of the Commission. If the Secretary of State has put upon him the duty of removing or not removing members of the Commission on the ground of their incompetence, he is certainly open to that sort of question.
In the other place and in this House we try to act with responsibility; but passions rise, and if passions rise that sort of thing might happen. I have known the noble and learned Lord well enough over the years to be certain that he would agree with me that that would be a highly undesirable situation. Should it not be avoided, either by incorporating in this Part of the Schedule in relation to the Commission the same language which the Government have adopted by the Amendment in relation to the members of the Industrial Court? Then the responsibility of the Secretary of State with regard to removal would be drastically curtailed. It would be exercised only in the case of misbehaviour, which everybody would accept, or actual incapacity of a physical character, or at any rate something closely allied to that which would be restricted in scope. I submit to the Committee that that would be a more desirable arrangement. That is the point I want to make on that aspect of Government control—because I think I am right in describing it in that way.
There is one other paragraph which I think the Committee should have in mind, and that is paragraph 34, which provides that in determining its procedure and quorum and so on, the Commission is toact in accordance with any general directions which may from time to time be given…by the Secretary of State.I do not want to repeat my argument, but I make the same sort of comment about that provision. Is it really necessary? I ask, in general with regard to the power to dismiss, is that really necessary when we are talking of people who hold office for a limited time and need not be reappointed?
41 The Committee may think that the cogency (if they think there is cogency) of that kind of consideration is reinforced when one looks at the very general power which is conferred upon the Commission in, for example, paragraph 37 of the Schedule—the power to take such steps as it thinks fit for the purpose of remedying a defect. That is a wide power, conferring a very wide discretion, and those who exercise that discretion will find it difficult to give effect to the views they may perfectly rightly hold unless they command wide confidence and are thought to be independent of any form of indirect control, perhaps by a Government which is not in sympathy with the broad section of the people. I am not making a Party or controversial point; that sort of situation may arise whatever Government is in power. Therefore, to summarise the questions I should like to put, I would simply ask noble Lords on the Front Bench whether they are satisfied that the constitutional set-up under the Bill is rightly framed. Do they feel that it ought to be further looked at between now and the Report stage in the light of the kind of consideration I have urged, namely, the imperative need of making certain that this Commission is thought by everybody concerned to be independent and, so far as it possibly can be, free of any control, direct or indirect, by the Government?
§ LORD DIAMOND
Before the noble Lord, Lord Drumalbyn, replies I wonder whether I might raise one further point? I did not do what my noble and courteous friend did and give notice to the Government that the point was to be raised, so I shall understand if the reply is more for consideration than immediate action. The point I want to raise in essence relates to the position of the Registrar although it is tied up with the question of overlapping jurisdiction. The Registrar is covered in Part I of this Schedule. At present the Registrar is regarded by the unions as a friend. I imagine the Government would therefore wish that situation to continue. It will not help it Ito continue to turn the Registrar into a policeman as well as being a Registrar. The reason why I am raising this point on this Schedule is because I do not think it is necessary for the Registrar to have the judisdiction with which he is at 42 present supposed to be invested. Let me say why.
At the moment if a union member complains that he has been injured by a breach of the rules he can go to the Registrar under Clause 79(3). He can also go to three other bodies. He can go to an industrial tribunal under Clause 103(3); he can go to the N.I.R.C. under Clause 97(1)(b), provided that he can show that the breach amounted to action in contravention of the principles set out in Clause 63, as in fact it would be most likely to. So he can go to the Registrar, the industrial tribunal, the N.I.R.C., and indeed to the High Court if the breach of rules is a breach of contract, because the High Court, as I understand it, retains its jurisdiction in that respect. Therefore, there are four ways in which he can seek to remedy the breach of rules by his organisation. That in itself, I suggest, may want looking at. But the point I am raising at the moment is that there is such an abundance, such an embarras de richesse, of ways of seeking satisfaction, that there is no need to include the Registrar as well.
It is clearly in the Government's mind that the Registrar should be only a very small policeman, if I may put it in that way, because the powers granted to him under Clause 80 are so limited that under Clause 99 he is given a power to make complaint to the N.I.R.C. so as to get their help when he is unable to solve a problem himself. I am saying, therefore, that for the sake of these very limited powers, it is a pity that in order to make him into a very small policeman indeed he should be turned from being a friend of the union into either a doubtful friend or a hostile individual. I should have thought, therefore, that the Government would be wise to reconsider whether, in these circumstances, that unnecessary jurisdiction should be given to the Registrar.
While the Government are looking at that point, may I ask them to look at the closely related point that the Registrar is given independent power to investigate without anybody making a complaint at all. If the Government's view is that somebody should have that jurisdiction, it would seem sensible in this context that it should not be the Registrar.
§ 4.36 p.m.
§ LORD DRUMALBYN
First of all, may I reply to the noble Lord, Lord Stow Hill. We on this side entirely agree with the point of view that he advocated in this case. We think it absolutely essential that the Commission on Industrial Relations should retain its independence and be an independent body. From that point of view we agree that it should be free from Government control. Its function is to carry out investigations, to improve the general relationships between the two sides of industry—this obviously is the main function—and to assist employers and unions in the voluntary reform of the institutions and the procedure of industrial relations. The noble Lord wondered whether the power given to dismiss was compatible with the independence of the C.I.R. We fully accept what he says about this. The Committee has already accepted an Amendment—I think it was Amendment No. 275M—in regard to the reasons for terminating the appointment of a member of the Court, and we would propose to bring it exactly into line, to use the same words, as far as the Commission is concerned. If the noble Lord would be good enough to leave the matter with us, we will introduce an Amendment to that effect at Report stage.
He then introduced the questions of procedure and of the quorum. I did not have notice of these questions, but I would judge that the question of a quorum must be related to the size of the Commission itself; and as the Commission may have anything from 6 to 15 members the power to fix a quorum would presumably be related to that. If I am wrong, 1 shall let the noble Lord know.
The noble Lord, Lord Diamond, went into the whole position of the Registrar and suggested that it would be better that he should not be put into the position of being a policeman. The Registrar is primarily a custodian of the rules, and it is, I think, logical that complaints of breaches of the rules, so far as individuals are concerned, should be considered by him; and this is an easy method of doing that. He will be able to examine the complaints as they come in to see whether there is justification in them. He will be able to mediate in the first place, and it will only be if that 44 sort of conciliation fails that he will then either himself refer the matter to an industrial tribunal or to the Industrial Court; or, of course, the individual himself can bring a complaint before a tribunal. As the Registrar has those powers, it would seem strange if he were not able to investigate on his own behalf as well—and when I say"on his own behalf", of course he will be acting on information received. The noble Lord may think that it is sometimes a little difficult to distinguish between cases where the complaint comes from the individual concerned or from other sources. If the Registrar is to be able to investigate in the one case, there seems very little reason why he should not investigate in the other cases as well. I hope that I have covered the point that the noble Lord wanted answered, and I hope I have also dealt with the points raised by the noble Lord, Lord Stow Hill.
§ LORD STOW HILL
I thank the noble Lord, Lord Drumalbyn, for what he has said, and for the indication he has given as to his intentions. May I couple that with an apology to him? I had wrongly supposed that it was the noble and learned Lord the Lord Chancellor who was going to reply because he dealt with the last rather similar Amendment. I am most grateful for the attention the noble Lord gave to this matter, and for the answer we have received.
§ Schedule 3, as amended, agreed to.
§ Schedule 6 [Provisions Relating to Industrial Tribunals]:
§ 4.41 p.m.
LORD DIAMOND moved Amendment No. 276B:
Page 153, line 23, after ("expenses") insert ("provided that no individual workers shall be subject to attachment of earnings, distraint upon his property or imprisonment arising from any such award")
§ The noble Lord said: I beg to move Amendment No. 276B. Perhaps it would be convenient to your Lordships if we discussed Amendment No. 276D at the same time, as that raises precisely the same point in almost identical wording. It may be that this Amendment is not too happily attached to this Part of the Bill, but one has to find a hook where-ever one can, and this seems to be the appropriate one on which to put it. I do 45 not think I need speak at length on these issues, especially as they arise in a more acute form in, I think, Clause 124. This is really to give an opportunity to the Government to reconsider their attitude and to say quite clearly (because the words themselves are very clear indeed) whether or not an individual worker is going to be subject to these matters.
§ What is worrying is the attachment of earnings. What is even more worrying is the distraint upon one's personal property; and what is most worrying is imprisonment arising from any such award. One wants to make the position absolutely clear—and, as I understand it, there is no doubt at all, and the Government have never hidden this—that commitment to prison for contempt of court exists, will continue to exist after the revision arising, I believe, from the Payne Report, of the law on collection of debts, and will result not only from a contempt of court arising out of an injunction, but from a contempt of court arising out of an order to pay a certain sum of money by way of compensation or by way of fine. Therefore, at the end of the day, the final sanction is imprisonment.
§ Although the first two matters I have mentioned are of increasing importance, I repeat that the most important of all, and the one which causes the greatest possible anxiety and which will do the greatest possible damage to the atmosphere of industrial relations is, at the end of the road, the threat of imprisonment arising out of a matter of industrial relations. I do not think I need say anything more than that, except to ask the Government to say either that they will accept this Amendment, or will meet it in some way or another in some part of the Bill at some later stage.
§ 4.45 p.m.
THE LORD CHANCELLOR
If I am a little short in replying to the speech of the noble Lord, I must explain that there has been some misunderstanding here because I was told, perhaps through error, that this Amendment was not going to be moved. The result is that I have listened to the noble Lord and will give him an off the cuff reply, because I am not as fully briefed on this as I would otherwise have been.
First of all, may I get rid of this business of contempt of court, I hope once 46 and for all. I have said before, and I say again, that on August 2, which I think is before this Bill can become effective even under the commencement provisions, the Administration of Justice Act 1970 will come into force, and imprisonment for debt will be finally abolished in this country. In order to inform the noble Lord once more about this, let me say again what I have said before. At present it is true, of course, that judgments, or awards for money sums, can, in the last resort, be enforced by imprisonment, but they can only be enforced by imprisonment under the proceedings for contempt of court. On August 2 all that comes to an end; it will come to an end before this Bill becomes law. Therefore, that point is wholly unnecessary. I hope that I having said it for the third time during this Committee stage, the noble Lord will finally be persuaded that it is true. From August 2 there is no more such imprisonment for contempt of court, and therefore that part of the Amendment is wholly unnecessary.
Schedule 6 provides that the awards of industrial tribunals should be dealt with through the county court. They do not, of course, have power to award injunctions, so far as I remember, and therefore there is no question of contempt of court arising from the awards of tribunals. The only question is, supposing the tribunal does what it has the power to do, to award a sum of money, how are you going to enforce that award? The answer is, in the same way exactly as a county court judgment will be enforced after August 2; namely, by distraint in the case of a relatively wealthy man—but that is not a very effective method in county court cases in respect of many judgment debtors on the county court scale—and, in the case of somebody otherwise, by attachment of earnings. Attachment of earnings is the substitute for the contempt of court proceeding which, until August 2, is the method of doing this.
The only effect of the rest of the Amendment which the noble Lord has proposed is to take away from an award by an industrial tribunal any power of enforcement at all. I cannot believe that this is what the noble Lord really intends. Once the Committee has decided that the industrial tribunal has power, in 47 certain circumstances, to make an award, then it must have power to enforce it. I should have thought that, if it is a money award, if it is not to be by fieri facias or by attachment of earnings, I have yet to discover how it can be done.
§ LORD DIAMOND
I return to this topic not because anybody hesitates to accept the well known dictum"What I tell you three times is true", even when it comes from the noble and learned Lord, but because there are others who take a different view. What the noble and learned Lord said was that after August 2 there will be no imprisonment for contempt of court.
THE LORD CHANCELLOR
If there was, by any chance, a misunderstanding, let me say what I intended to say, and what I think I did say. If, by any slip of the tongue, I did not say this, then I can only apologise to the Committee. As matters stand, and until August 2, judgments cannot be enforced by imprisonment unless there is contempt. Where there is contempt a committal order, absolute or conditional, can be made. After August 2, that will no longer be true and even the jurisdiction in contempt will be taken away from money judgments. If I misled the Committee I apologise, but I was not aware that I had done so.
§ LORD DIAMOND
I raised the matter again because I thought the noble and learned Lord would wish me to do so, as he did not add the relevant words"for debt"which I assumed him to have in mind, thus making it perfectly clear. The noble and learned Lord will accept that there are those outside your Lordships' House who are even denser than I am and who take even longer to learn a lesson, and it is for the benefit of all that what we say goes on the Record. The noble and learned Lord dealt with that part of my comments which referred to debt, but I referred to debt and to injunctions. I should be grateful, therefore, if the noble and learned Lord would 48 tell me whether I am right in understanding that what the Solicitor General said in another place applies up to and subsequent to August 2; namely, that if arising out of an industrial matter there is an order of the court which is, for example, an injunction not to do something or other, and if, as a matter of principle, maybe misguided principle, the person so ordered refuses to comply with the order, then, as the Solicitor-General said, in effect (I do not have his words in front of me) nothing can stop such a man from being sent to prison if he is determined to continue disobeying. In short, where an injunction is concerned, as opposed to a money debt, where what is required is action on the part of an individual, he can after August 2 be sent to prison for not complying with an order of the court arising out of an industrial matter.
THE LORD CHANCELLOR
I really was dealing with the noble Lord's Amendment to Schedule 6. If he will look at Schedule 6 he will see—at least I hope he will see, because otherwise I am wrong and not he—the heading Provisions relating to industrial tribunals. Industrial tribunals have no power to award an injunction, or an order in place of an injunction. It therefore follows that nothing in the Amendment can relate to imprisonment for contempt of court for breach of an injunction. That cannot happen in proceedings relating to industrial tribunals. It is only the N.I.R.C., the Industrial Court, which has power to award an injunction, and it was to that that the Solicitor General must have been referring. I think I must be right about that.
§ LORD DIAMOND
All that remains for me to do is to thank the noble and learned Lord for clearing up that matter.
§ Amendment, by leave, withdrawn.
§ 4.54 p.m.
§ LORD BEAUMONT OF WHITLEY moved Amendment No. 276EE:
Page 154, line 14, at end insert—
("Any person may appear before an industrial tribunal in person or be represented by counsel or by a solicitor or by a representative of a trade union or an employers' association or by any other person whom he desires to represent him.")
§ The noble Lord said: This is a fairly simple Amendment to include the right of representation by counsel or by a 49 solicitor, or indeed by a representative of a trade union or a friend, for a person appearing before an industrial tribunal. This right is already included in the rules of the Industrial Court in paragraph 21 of Part II of Schedule 3. Although we are aware of the desire of the Government, which we share, that industrial tribunals should be far less formal places than the Industrial Court, we think it is right that a person appearing before a tribunal should also have this right, because the tribunals will be dealing with some important matters and it may well be that such a person would need this kind of representation. We have accepted, albeit somewhat reluctantly, the Government's feeling that although legal aid would be justified before the Industrial Court it could not necessarily be justified before the tribunals. But we think that if someone wants to have a representative before a tribunal he should at least have the right to do so, and this should be written into the Bill. I beg to move.
§ BARONESS TWEEDSMUIR OF BELVELVIE
I hope it will be convenient if I say to the noble Lord at this stage that we are very glad indeed to accept his Amendment. It has always been the intention of the Secretary of State, in drafting new rules for industrial tribunals, to provide for an unrestricted right of representation in their proceedings. Therefore, to that extent the Amendment is unnecessary. But in order to avoid any possibility of doubt we are very glad to accept it.
§ On Question, Amendment agreed to.
§ 4.57 p.m.
§ On Question, Whether Schedule 6, as amended, shall be the sixth Schedule to the Bill?
§ LORD STOW HILL
May I raise two short points? The first one goes back to the awarding of costs. The noble and learned Lord the Lord Chancellor will remember that, when we discussed Part II of Schedule 3, we had a discussion on the wisdom or otherwise of not allowing the Industrial Relations Court to award costs, except in certain very limited circumstances. In answer to the questions which I put on that occasion, the noble and learned Lord justified the provisions of that Part of the Schedule in relation to costs before the Industrial 50 Court by saying that those provisions were modelled upon the Restrictive Practices Court. In the course of his speech, he said—and I thought he was very justified in saying it—that an award for costs may be crippling in the case of a person of modest means, engaged in litigation with a substantial concern, losing the case and therefore being ordered to pay on a party and party basis the costs of a substantial concern arising out of that litigation. The case may go on for some days and the person who loses may find himself almost beggared.
That being the position with regard to the Industrial Court, is it not, with respect, inconsistent to state in Schedule 6, which deals with cases which go to industrial tribunals and which in the vast majority of instances will consist of claims by employees for unfair dismissal and for similar complaints, that in cases of that sort it should be possible for a tribunal to make a complete award as to costs? After all, there you are surely getting precisely the sort of case that the noble and learned Lord had in mind when he used the language to which I have referred in dealing with the Industrial Court. When you are dealing with the Industrial Court, you are generally dealing with two parties both of which are parties of material substance, but an industrial tribunal will probably be dealing with an employee and the employer with regard to whom the employee complains that he was unjustly dismissed. Therefore, it seems to me to be inconsistent to say that you shall not be awarded your costs if you win, or have to pay the costs of the other party if you lose before the Industrial Court, but you shall be awarded your costs if you win or be ordered to pay the other side's costs if you lose when you appear before the industrial tribunal, it being borne in mind that in the latter case, as I have already said, you will probably be an employee complaining that you have been unfairly dismissed. I submit that that point needs to be looked at again. If one applies the test whether a person of modest means might find himself deprived of all his substance as the result of an unsuccessful proceeding, then surely one should, in the case of proceedings before the industrial tribunals, adopt some kind of mechanism similar to that which is at present in Part II of Schedule 51 3 in relation to costs of proceedings before the Industrial Court. That is the point that I should like to put.
The second point I should like to put is on paragraph 4. I wholly agree with the proposal that wherever possible conciliation officers should be brought into proceedings of the sort one is dealing with in Schedule 6. These matters should be the result of an accommodation instead of hostile litigation, where accommodation is possible. The only question on which I should like to ask the intention of the noble and learned Lord is this. In paragraph 4 he is given the power to make regulations, and subparagraph (c), if I may paraphrase it, empowers him to make regulations for postponing the hearing of a complaint in order to give time for the conciliation officer to function. Is it his intention to give the Court power to postpone proceedings in spite of the wishes of both the parties? If that is his intention—and I would submit the point does require further consideration—it is going a bit far, if both parties want a matter disposed of, for the Court to say,"No; we refuse to dispose of the issue, to arrive at a decision; we propose to postpone the proceedings in order that the conciliation officer may try to exercise his influence". That may take some time, and it may mean that either an employee or anybody else who appears before that Court is unfairly kept from achieving a remedy to which he is quite clearly entitled. All I should like to ask is what the noble and learned Lord's intentions are with regard to providing for a power of postponement. and I hope that he will be able to say that only in the most limited circumstances will that be done in spite of the wishes of the parties.
THE LORD CHANCELLOR
The first point is about costs. I think the noble Lord was perhaps speaking without the recollection that industrial tribunal costs are already the subject of rules. Even the present Schedule really only continues the power of the Secretary of State to make rules for industrial tribunals in relation to costs. There are occasions in relation to S.E.T., although they are not material to the kind of discussion under this Bill, in which the full costs follow the event before industrial tribunals in the ordinary way, and the 52 Secretary of State retains power to make regulations which allow for this. But the rules in the kind of dispute we are discussing to-day will be more on the lines of Regulation 10 of the Regulations of 1965, which is as follows:The tribunal shall not normally award costs, but where in its opinion a party to the proceedings (and, if he is a respondent, whether or not he has entered an appearance) has acted frivolously or vexatiously, the tribunal may in its decision include an order that the party shall pay to another party either a specified sum in respect of the costs incurred by that other party or the amount of those costs, to be taxed in default of agreement",and then there are further provisions which are perhaps not material to my present point. It is the intention of the Secretary of State, as regards the kind of dispute that we are really concerned with in this Bill, to make rules on those lines. which are substantially the same as those which we were discussing in relation to the N.I.R.C. rules. In other words, costs will not be awarded ordinarily before an industrial tribunal except where the proceedings have been vexatious or frivolous or the like.
As regards the power to make rules providing for the postponement of a hearing under Schedule 6, paragraph 4, I think I would agree with what the noble Lord said. It certainly had not crossed my mind that in the ordinary case where both parties wanted to expedite a hearing it would not be expedited, but I had not, I am bound to say, got down to such detail as to consider the point closely. The purpose of the enabling power in paragraph 4 is really to allow for a postponement of a hearing in order to give full weight to the work of the conciliation officer. It had not occurred to me that the tribunal should be given power to postpone a hearing if both parties asked not to, but I had not really considered the point with any definite intention in mind. I hope the noble Lord will accept that that is the best answer I can give this afternoon.
§ LORD STOW HILL
I am most grateful to the noble and learned Lord. That is a perfectly adequate answer from my point of view, and I should have thought it wholly deals with the points I have raised.
§ LORD DONOVAN
May I raise a short point of quite a different character? The Lord Chancellor reminded us a moment 53 or two ago that the industrial tribunals would have no power to issue an injunction, and therefore no power to enforce its orders that way—I am dealing now with orders determining rights, not awards of compensation, which can be enforced in the county court. If an industrial tribunal makes an order determining an employee's right and the employer flouts it, what powers will the industrial tribunal have to enforce that order? I can find only one instance in the Bill where the orders of an industrial tribunal can be enforced, and that is under Clause 55. Under that clause, the various employers have to give certain information to certain employees, and if it is not done a complaint may be made (I think it is under Clause 106) that the employer has not done so, and the tribunal can then make an order that the employee should have the information. If the employer flouts that order, then under Clause 106(4) the employee can make an application direct to. the Industrial Court, which, if it thinks fit, can issue an order, the penalty for disobedience of which will ultimately be committal. That is the one case that I can find where the orders of an industrial tribunal can be enforced.
But if, for example, a trade unionist asks for one of his rights under Clause 5 to be determined and the industrial tribunal makes an order in his favour, as the Bill stands it seems as though the employer can flout the order and nothing will happen, because an award of compensation will not be appropriate for this particular right. All I ask is: is it intended to leave the position in that way? I can quite see the objections to giving a tribunal which is predominantly lay a power of committal, but apart from that I cannot see what force there is in any order of an industrial tribunal, apart from an order under Clause 55, enforced ultimately by the Industrial Court under Clause 106(4). I merely ask whether it is intended to leave the matter in that way.
THE LORD CHANCELLOR
I am afraid that the noble Lord has caught me a little unawares on this point. We were dealing with Schedule 6 and it had not become immediately apparent to me that this question occurred under that Schedule. It is a perfectly legitimate question to ask and if I may postpone answering it until I am in a position to 54 do so adequately, I shall then try to give the Committee the answer. I cannot do so with certainty now.
§ LORD DONOVAN
I asked the question because the noble and learned Lord said that the industrial tribunal had no power of committal. I thought it appropriate to ask it then.
§ Schedule 6 agreed to.
§ Clause 124 [No compulsion to work or to take part in industrial action]:
§ 5.11 p.m.
LORD DIAMOND moved Amendment No. 276E:
Page 93, line 10, at end insert ("nor shall an employee be fined, have his earnings attached or his property distrained or seized nor be imprisoned for failure to do any work or attend at any place for the purpose of doing any work")
§ The noble Lord said: In moving this Amendment may I first say to the noble and learned Lord, arising out of the perfectly acceptable statement that he has just made, that I assume that he will be making a reply to the noble and learned Lord, Lord Donovan, during the course of the Committee stage. It is obviously important to those concerned with the interests of the Opposition that the reply should not be withheld until the Report Stage. May I also suggest that it would be convenient to consider with this Amendment Amendment No. 276G where the same point is made in a starker form.
This is a most important clause dealing with the right not to work and, by association, the right to strike. Freedom to work and not to work is a very important freedom, and it is in order to clarify the views of the Government in relation to it that these two Amendments have been put down. Amendment No. 276E reads:
nor shall an employee be fined, have his earnings attached or his property distrained or seized nor be imprisoned for failure to do any work or attend at any place for the purpose of doing any work.
I have assumed that a fine is not what the noble and learned Lord had in mind when in a previous discussion he referred to a money debt. I am assuming that a fine is something in respect of which contempt of court, followed by imprisonment,
does not lie. The noble and learned Lord would know immediately if I am wrong, I am anxious not to overstate the position, and therefore I shall rely largely on what was said by the Solicitor General in another place on February 23 when a similar point was discussed. The Bill makes clear the limitations of activities for which remedies can be sought; and the Solicitor General then said, first:
We have confined ourselves to remedies against organisations or individuals calling, procuring or organising."—[OFFICIAL REPORT, Commons, 23/2/71; col. 364.]
§ That means procuring, calling or organising a strike; and I understand the meaning of"confined"in relation to the law as it previously was or might otherwise have been. It is important to get clear in our minds the remedies lying against organisations or individuals not in relation merely to taking part in a strike, but in relation to calling, procuring or organising a strike.
Later in the same column the Solicitor General said:
In the very narrow categories which I have identified—namely, someone who is not merely participating in a strike but is organising or procuring a strike outside the scope of any authority from any registered union—remedies can be sought against such a person or organisation or group of people if the strike is unfair.
§ That is the second leg of the argument, the second statement adding to the definition. We now see that remedies can only be sought against persons or organisations if the strike is unfair and if it is outside the scope of authority from any registered union.
Then, in column 365 the Solicitor General clarified the matter still further by saying:
The unofficial, unregistered organisation is in difficulty only in the circumstances which I have described,…If it has wrongly called and organised an unfair strike, it can have an order for compensation made against it. If it has wrongly procured or induced an unfair strike, it can have an order to restrain it from continuing to do so made against it.
§ So if we are dealing with what the Government now describe as an unfair strike (a view not previously enshrined in our legislation) the position is that an unregistered organisation and all its shop stewards and all its officials who take part in organising the unfair strike can be proceeded against; and it matters not if that union, being an unregistered union, 56 officially approves of the strike and, indeed, instructs the shop stewards to act in the way in which they are acting, because it is an unregistered body of workers acting in connection with an unfair strike.
§ Again, where you have a registered union, any unauthorised organisers of such a strike—for example, shop stewards acting in anticipation of the fact that the strike would be subsequently authorised or made official by the union itself—are also liable to be dealt with in this way. The unregistered organisation as such is also vulnerable. So there is a pretty wide field and the two remedies are: first, an order for compensation (which, from what the noble and learned Lord recently said, I understand cannot after August 2 result in imprisonment for contempt of court); and, secondly, an order to restrain it from continuing to do so; and that order can result after August 2 in imprisonment for contempt of court. An offence is therefore created by this legislation, and if it is not a criminal offence it is of a quasi-criminal character.
§ There are two circumstances which, to my mind, would be very likely to lead to this situation. I divide them into the circumstances of error and the circumstances of deliberate act. Error could arise in the circumstances I have just touched on, where shop stewards of a registered union could act in an unauthorised way in connection with organising an unfair strike in anticipation of—as they saw it, and thought—subsequent confirmation by the union which would make their action official. I think I am right in my recollection when I say that when we raised this point of subsequent confirmation by a union of an unauthorised action we were told that that would not of itself validate action taken prior to the authorisation by the union; confirmation was not retrospective. In short, where shop stewards honestly acted in error, in anticipation of their action being made official by a registered union, even if that action was subsequently made official by such a union they would be liable to this penalty.
§ The other set of circumstances I called deliberate. I refer to the Payne Report on the Enforcement of Judgment Debts, which I think showed that something like one-third of civil debts were in respect of maintenance orders. One knows why there are so many: it is because, as a 57 matter of principle, many men with maintenance orders made against them say,"I will see you dead before I pay up."What I am leading up to is that if on such a matter they can refuse to pay in such large numbers (we have all come across many such cases: certainly those of us who have been Members in another place have had many experiences of this kind), how much more would a trade unionist be likely to refuse if he felt that what he was doing was right and honourable and consistent with what he had been free to do over the last century! How much more would he feel justified in refusing to comply with an order of the Court which arose from the fact that a new principle related to an unfair strike, one which was unknown to him and which he had never been brought up to regard; and nor had his father or his grandfather!
In these two sets of circumstances one could have a number of individuals made liable for the ultimate weight of the law. Indeed, the Solicitor General made this perfectly clear when he said in the same debate (col. 369):
•if, in the last resort—and this point has been made time without number—someone is determined to continue defying an order made in the situations defined in the Bill, he cannot be kept out of prison.
§ Those circumstances, if I am right, are the kind which arise particularly from individuals feeling deeply about their liberties; their rights; their comradeship with fellow workers. They arise out of a habit of mind and philosophy bred over the last hundred years. I am saying that that is a most unfortunate thing —and I am using the mildest possible language—to have to contemplate. It is a most unfortunate thing for industrial relations, not only because it will bedevil and embitter them, but also because it will be of no practical benefit; in fact it is the reverse. We all know the Betteshanger case and the difficulties which arose there; and the Irish case, where men refused to pay and were sent to prison and the employer had to pay the fine to get them out of prison, either to complete negotiations for resuming work or to get them back to work. I think that in the Irish case the employer even had to supply taxis to take them out of gaol. It is totally ridiculous, and not only non-productive but also counterproductive to a substantial degree. For 58 these reasons we want to make absolutely clear that this fate does not lie at the end of the road for any workers in any circumstances; and that is why I am moving this Amendment.
§ 5.26 p.m.
THE LORD CHANCELLOR
There has been some extraordinary failure of Communication here. Amendment No. 276E and Amendment No. 276G, which I think is the other one under discussion, stand in the names of the noble Lord, Lord Stow Hill, and the noble Lord, Lord Diamond. My Office (I have just checked again to make sure and I have it in black and white on the front of my folder) gave me the information yesterday that the noble Lord, Lord Stow Hill, had said in the most unequivocal terms that neither of these two Amendments would be moved.
§ LORD STOW HILL
I am sorry to interrupt him, but will the noble and learned Lord allow me to say that it would be very unfortunate if there were any misunderstanding about what I said. If I may say so, I emphasised, as I have done previously to the noble and learned Lord in relation to other Amendments, that I did not propose to move them; but, of course, I did not know whether anybody else would wish to move them. If I may say so, I made it very clear, and asked that it should be made very clear to the noble and learned Lord, that what I was saying was simply that I did not myself propose to move the Amendments. I am very sorry if there has been any misunderstanding.
THE LORD CHANCELLOR
Of course I accept every word that the noble Lord, Lord Stow Hill, has uttered. But he is a very distinguished member of the Labour Party, and, whether or not he made it clear to my Office, it did not penetrate to me that he was not speaking for the other noble Lord who is an equally distinguished member of the Labour Party and an equally distinguished ex-Labour Minister who did in fact move the Amendment. I was not expecting him to move it.
But far more serious than the failure of communication between noble Lords opposite and myself is my failure of communication to the noble Lords opposite. I thought that at last I had really 59 established once and for all (having said it three times; and I beg the Committee to believe that what I have said three times at least is true), the point that imprisonment for debt will be abolished on August 2. That goes for any money order at all for a civil liability. I may say that so worried was I by the persistance of the noble Lord in referring to the Betteshanger case that on the third occasion when I made it clear—this is the fourth—I actually sent a message to the Box to find out whether I had been talking nonsense or not. I did not think it possible that I could have got it wrong, and they said,"No, you are perfectly right. There was a point that you made about the Debtors Act 1869 which was not exactly correct, but the point about imprisonment for debt was correct."Whether it is a deliberate refusal to pay a maintenance order, or a refusal to pay the price of goods sold and delivered, or whether it is the price of compensation payable under this Bill, there is no imprisonment for debt. Can I say it more plainly than that, or do I need to say it ten times, instead of four times, over?
§ LORD DIAMOND
If the noble and learned Lord wishes to convince himself he can go on saying it as many times as he likes, but he convinced me on the last occasion. That is why I have never repeated the argument based on that theory, although I have been advised to the contrary by others.
§ 5.30 p.m.
THE LORD CHANCELLOR
I am very glad the noble Lord has not repeated it, because there again communications have broken down between us. I was under the impression that that is exactly what he was doing when he referred to the Betteshanger case, because that is what happened in the Betteshanger case. On any order of the court other than payment of money, in the case of any injunction by the N.I.R.C. (I call it an injunction, though it is not called that in the Bill: but it is an order which is in the nature of an injunction), once that order has been made not to do a particular act, other than the payment of money or a declaration of right pure and simple, then of course the words of the Solicitor General do apply and that can be done; but not until an order has been made by the court. That order cannot relate to 60 money payment, because that is dealt with under methods of enforcement from August 2 onwards. I have made it clear, I hope, that that is the commencement date.
Referring to the actual language of the Amendment, the order can never be madeto do any work or attend at any place for the purpose of doing any work",because if the noble Lord will refer to Clause 124 he will see that it says:No court shall, whether by way of—(a) an order for specific performance or specific implement—that, I think, is the Scottish term—of a contract of employment, or(b) an injunction or interdict—again the Scottish term—restraining a breach or threatened breach of such a contract,compel an employee to do any work or to attend at any place for the purpose of doing any work.I do not think that anything could be plainer than that. So there is no possibility that I can conceive of that any employee can be sent to prison either for not doing any work or for failure to attend any place for the doing of any work. Let me make that absolutely plain.
If I may now revert to the law as it is, it may help me to deal with the other points made by the noble Lord. Of course, an employee is under a contract now. This Bill does not alter that. It does not put him under a higher obligation than he has now to keep a contract, nor does it put him under a lesser obligation to keep a contract. Both employer and employee are bound by the terms of contract. If they break them now they can be sued for damages, though they cannot be sued for specific performance or have an injunction of a nature imposing specific performance upon them. That liability of the employee remains, not because we have imposed it by this Bill but because it was always there. I am bound to say that I have not known many cases in which employers have sued their employees in the county court for damages for breach of contract, for failure to do any work, but I have always understood, broadly speaking, that they were entitled to do it, just as in the old days of breach of promise of marriage the man could bring an action 61 against the girl just as well as the girl could bring an action against the man, but in fact never did. That is left unaltered by the Bill.
The noble Lord asked me about fines. Again the Bill does not impose any fines for doing any work or failure to do any work. It is not concerned with the criminal law. Under the present law I can think offhand of only two cases, though there may be others because I have not researched it, where employees have been fined for not doing work. They both arose under the Conspiracy, and Protection of Property Act 1875, Sections 4 and 5, which theoretically can give rise to a fine in a magistrates' court of £25, the maximum amount fixed in 1875. Again I do not recollect many proceedings taken for the contravention of that Act but there have been some over the last 100 years. Under the repeal clauses of the Bill we are repealing Section 4 but not Section 5. It may be that we will have an opportunity of discussing whether that is a wise or a wrong policy. The Commission of the noble and learned Lord, Lord Donovan, unanimously came to the conclusion that we should retain both, but we have abolished one and kept the other. I do not want to mislead the noble Lord. There is no fine imposed by this Bill. The only fine which can exist would come under the 1875 Act.
I think that I have dealt with almost all the points which the noble Lord made. I come back to his two sets of circumstances and what he called an error which might give rise to a claim for compensation. Incidentally, I do not accept the words"unfair strike", except as a shorthand expression for unfair industrial practice consisting of organising a strike, but I do not want to be pedantic. It is not a term used in this Bill, and perhaps we had better be pedantic up to that point. It is true, as has been said on several occasions, that an unfair industrial practice will give rise to a claim for compensation against unregistered associations and their officials for doing prohibited actions—for example, organising a strike—but not to the officials of a union acting within their authority, or to a registered trade union.
In the case of the error which the noble Lord supposes, although it is conceivable 62 that a shop steward, for reasons which I gave in an earlier debate to which the noble Lord referred, could render himself liable to a claim for compensation in the set of circumstances envisaged by the noble Lord, he could not conceivably render himself liable to imprisonment, for the reasons I have tried to outline. In the case of deliberate misfeasance against the Bill, the same is true about an award of compensation. It is also true about any other action unless there has been an order of court in the nature of an injunction deliberately flouted, but in the case of a money payment or a declaration of right no imprisonment could possibly arise. As regards any other act, no possible imprisonment could conceivably arise except in the face of continued action, other than refusal to pay a sum of money, done in deliberate defiance of an order of the court not to do it. I hope that I have made that as clear as it is possible. I was a little disappointed at the beginning that I had not made it sufficiently clear already. I think that I have covered all the points the noble Lord made and I hope that, although he will not agree with what I have said, he knows exactly what it is I have tried to say.
§ LORD BERNSTEIN
Perhaps the noble and learned Lord could help someone who is not so conversant with the law. We have been told that an order made by the court for debt can no longer be dealt with by contempt of court from August 2. We accept that. How will the Industrial Court enforce its judgments'? Perhaps we might save a lot of time in discussion if we knew more about this. If you have a contract with an opera singer, you cannot make him sing. You can restrain him by an injunction from singing for somebody else, and you could get damages for breach of contract. Supposing you have one hundred singers in the chorus of, say, Drury Lane, who are members of a union and they are all refusing to sing. If the Industrial Court imposes a judgment, how will it enforce it—how will it apply the injunction? Will there be a grant of compensation, or will the Court say,"You will have to go to prison until you sing"? If we knew how these judgments of the Industrial Court were going to be enforced, it would speed up our discussions.
THE LORD CHANCELLOR
I thought I had made this abundantly clear. If the noble Lord will look once more at Clause 97 he will see that the Industrial Court can make orders of three different classes. The first class is a declaration of right—that is in subsection (3)(a). An order like that is not enforceable as such; it simply declares the rights of the respective parties. The second is a money award, an award of compensation; that is in subsection (3)(b). That is enforceable in the same way as any other debt from August 2, excluding imprisonment, because from August 2 onwards, imprisonment is abolished as a method of enforcement—in other words by fieri facias, the ordinary order of distraint. I think it has been in this Amendment rather inelegantly expressed as"distraint of goods", but what is really meant is sale of goods in satisfaction of a judgment or the attachment of earnings under provisions to be brought into effect from August 2. The third class of order is an order in the nature of an injunction. I have called it that, but it is more properly referred to in paragraph (c) of the same subsection as an order directing the respondent to refrain from continuing to take that action and to refrain from taking any other action of a like nature in relation to the complainant. That is an order of the nature of an injunction and the breach of it can be dealt with, in the last resort, in the same way as contempt. Normally a minor infringement is not dealt with at all: that is to say, it is brought before the court, and an unintentional infringement is dealt with by an apology or, at worst, by an order for the payment of costs. A more serious infringement is dealt with by payment of a fine. The most serious or persistent type of infringement can be dealt with by imprisonment. I had thought this had been said so often to the Committee that I was in danger of repeating myself unnecessarily.
§ LORD BERNSTEIN
May I say then that the noble and learned Lord's answer to me is that if the hundred singers to whom I referred refused to sing, the Industrial Court would eventually have to send them to prison?
§ LORD POPPLEWELL
I am seeking information as a layman. Supposing an order for compensation has been made upon some individuals—officials of unions or whoever they may be—and they refuse to pay, the next step, as I understand it, would be for them to be taken to court for contempt of court. Am I wrong?
THE LORD CHANCELLOR
No: again and again I have said that an order for the payment of money is not enforceable in that way. I have said it now five times, three times this afternoon. How many times do I have to say it before the noble Lord will believe me?
§ LORD POPPLEWELL
I think the noble Lord will have to say it many more times, and also many times to the trade union movement. The noble and learned Lord jumped up before I had finished my question. An order for compensation has been made. It has not been paid. What is the next step, so far as obeying the court order is concerned?
THE LORD CHANCELLOR
The next step is either an application for attachment of earnings, in the case of an individual wage-earner, or, alternatively, a sheriff's writ of fieri facias, namely, a writ under which the goods of the debtor are sold. There are various other types of execution which are more suitable to people with bank accounts, but that is one of the methods of execution laid down in the Administration of Justice Act 1970.
§ LORD BERNSTEIN
My hundred singers have no money. They have been living on a very modest salary. What happens to them? If the noble and learned Lord could tell us that, it would help enormously. What would be the final decision of the Government, through this Bill?
THE LORD CHANCELLOR
The decision of the Government would not exist at all. This is a matter for the Court. The noble Lord spoke of debtors who have no money. You cannot take money out of a stone—and this has been discovered by judgment creditors for a very 65 long time. Originally they sent Mr. Pickwick to prison for not paying Mrs. Bardell, but over the years imprisonment in such cases has gradually been abolished, and after August 2 it will disappear altogether. Of course there are various methods of execution, including bankruptcy, where a debtor does not pay. Where he does not pay, and cannot, he may go bankrupt—that is to say, if it is thought worth while to start bankruptcy proceedings by the creditor. But if the debtor does not pay and can, then execution will be levied on his goods.
§ LORD GARDINER
If I may say so, I appreciate everything the noble and learned Lord has said, but he would help many of us if he would respond to the request made by the noble Lord, Lord Bernstein, and give us some example of the kinds of orders in the nature of an injunction which the court would be likely to make, and also what kind of things people would be ordered to do.
THE LORD CHANCELLOR
It is rather a question of what they would be ordered not to do, and that depends on the thing they have been doing which constituted an unfair industrial practice. One of the things they might be ordered not to do is not to interfere with the right of an employee under Clause 5 either to belong or not to belong to a trade union.
§ LORD GARDINER
This would not raise great difficulty: if half a dozen people do something which they ought not to do, there is no difficulty about the court's making an order. There is no doubt that the court might enforce the order by ordering goods to be sold. The whole difficulty in the field of industrial relations is what do you do when 10,000 people do the same thing?
THE LORD CHANCELLOR
As we have been saying patiently throughout to the noble and learned Lord, and as he will be able to verify by examining the draft of the Bill, it has been carefully drafted so that the unfair industrial practices of which people are accused cannot be performed by 10,000 people but only by very small numbers.
§ 5.49 p.m.
§ LORD DOUGLASS OF CLEVELAND
I think I have followed the noble and learned Lord Chancellor's argument pretty well. If men refuse to work with a non-unionist, they are going to attract these particular penalties. if they are not allowed to refuse to work with a non-unionist, they may be driven to grosser expedients which they have adopted in the past. We in the trade union movement have decried these and have tried to prevent people adopting the attitudes that they have. I can imagine that if we are not allowed to strike, or to compel a man to join a trade union, the other men may send him to Coventry. Will there be a penalty imposed on the men simply because they refuse to speak to one of their colleagues who refuses to join a union? Is not this clause going to drive men to much worse expedients for the purpose of getting 100 per cent. trade unionism? The question, I think, is simply this: are you going to impose this penalty on men who send one of their workmen to Coventry; that is to say, they just refuse to speak to him?
THE LORD CHANCELLOR
Clearly not. This certainly could not happen, because there is no obligation imposed by the Bill to speak to anybody, so far as I know, and therefore the court has no power to ask a person to refrain from the absence of conversation. It all depends on what the noble Lord means when he says"grosser expedients". Under the Bill, there may be no remedy, but"grosser expedients"can cover anything from sending a person to Coventry to punching him on the nose. I think that punching him on the nose is against the common law—or perhaps the noble and learned Lord, Lord Gardiner, will differ from me.
§ LORD DOUGLASS OF CLEVELAND
I used the words"grosser expedients"because there are a number of things, and there are graduations up to the one about which the noble and learned Lord has spoken. But will he please answer this question? I am trying to find out how you are going to prevent by legislation the imposition of a closed shop in any factory when such expedients as sending a man to Coventry, which the Lord Chancellor agrees now would not 67 be punishable by law, would be used against him. In my opinion, such an action is terrible, and is one of the things that we have always decried in decent trade union circles. But if that is the only outlet available to these people to achieve what they consider to be the right result, what penalty under the Bill will prevent the achievement of a closed shop?
THE LORD CHANCELLOR
The Bill speaks for itself in that respect. All I was able to answer was the question that the noble Lord asked: whether refraining from speaking to somebody by concerted action, contemptible as I gather he agrees it is, is an unfair industrial practice under the Bill. That, in my understanding, is not so. But I should be very sorry to believe that public opinion, and a sense of public morality, which the noble Lord shares with me, would either excite that probability or condone it if it happened. I would agree with the noble Lord, however, that you cannot by means of an order compel conversation between two parties or among more than two parties. I sometimes wish that one could do it the other way. But one cannot compel conversation.
§ LORD DOUGLASS OF CLEVELAND
If your Lordships will forgive me, I do not want this to be a matter of question and answer, and I promise not to speak again on this Amendment. I have been silent during the debate on the Bill, if a little dismayed at times by the arguments that have come from noble Lords on the other side, because there has been a supposition all the way through that by legislation of this character you can chain the trade unions. This is what concerns me. I feel that trade unions have almost become the hare in coursing. If you drive a hare in coursing to a fence, it will go through the only holes that you leave available to it. If that hole is one which the noble and learned Lord and I agree to be contemptible in normal circumstances, will not the blame lie on noble Lords opposite for driving the hare through this particularly contemptible hole because there is no other avenue left?
THE LORD CHANCELLOR
This is basically a Second Reading point. I have been endeavouring to deal with the 68 questions before the Committee, and this is not one of them. I would say respectfully to the noble Lord that it is always open to Englishmen to do the decent thing, which is to allow other people to enjoy the rights which they would ask for themselves; and to allow them to enjoy the facility either to belong or not to belong to a voluntary association is, I should have thought, one of the rights which most Englishmen would demand for themselves. I may say that I think it is a little unreasonable, even in the noble Lord, who is usually the most reasonable of men, to say in one breath, as noble Lords opposite have been saying, that trade unions ought to enjoy all the rights of a voluntary association, and then to suggest that in order to compel people to join them so that they cease to be voluntary they are justified in extraordinary measures which would normally be considered immoral both by the noble Lord and by me.
§ LORD PARGITER
As an ordinary person I read Clause 124 as saying that no order of any kind virtually can compel a man to work or to attend his place of work. His failure to work or attend his place of work will in certain circumstances be a breach of contract. But this clause says specifically that, although it may be a breach of contract, no court can compel the man to attend his place of work or to do anything. How does this square up?—because if the injunction is obtained, ultimately it would seem that he can go to prison for failure to obey the injunction.
THE LORD CHANCELLOR
I had hoped that I had made this point plain. Under the law as it exists at the moment, nobody can be compelled to work. He may be liable—and I said this to the noble Lord, Lord Diamond—in an action for damages for not doing it. If I have agreed to write a book, and do not write it, I can be sued by my publisher in an action for damages for breach of contract. What he cannot make me do is to write the book. Similarly with a coal-miner: he can, I suppose, if he chooses to stay away from work without giving notice, be sued for the value of his services during the period in which he ought to be working. I am now talking about the law as it is at the moment. He cannot be made to go to work and 69 he cannot be made to hew an ounce of coal. What Clause 124 does is to keep the situation under the law as it will be when this Bill becomes an Act. Nobody can be compelled to work, and that is what Clause 124 is saying in legal language: language appropriate to Scottish law in one arm, and to English law in another. But the man remains liable, as he is now, for damages for breach of contract. That is not imposed by the Bill. It is a liability under which he suffers now, and, as I ventured to point out to the noble Lord, Lord Diamond, it has been the law for more than 200 years. But it is not very often made use of by employers.
§ LORD TAYLOR OF MANSFIELD
I do not want to trade unduly on the noble and learned Lord's patience, but this question of penalties is important. I understood him to say on more than one occasion—and I believe him—that there would be no imprisonment after August 2 for fines of this kind. But he said something about a man who had been fined and if there was nobody to pay his goods could be distrained upon. Would that mean putting in the bailiff and taking his bed and his sideboard? If that is so, it will not help industrial relations.
THE LORD CHANCELLOR
To begin with, as I tried to explain, there are for these purposes no fines under this Bill. I am prepared, given a little notice, to give a full disquisition on the law of execution, but there are articles which are exempt from execution. That will apply whether he buys goods at a shop and does not pay for them, whether he borrows money from a friend and does not pay him back, or whether an award for compensation is made against him. The law of execution is, I believe, relatively humane; and if it is not, it is the fault of the noble and learned Lord, Lord Gardiner, because he introduced the last law dealing with it. It is not different from one kind of debt to another. It does not include imprisonment.
§ LORD DIAMOND
I feel that we should now bring this debate to a conclusion, but the conclusion can only be in the Division Lobby. The noble and learned Lord has been courteous enough to rise and respond to each individual intervention separately, and therefore he has made a number of speeches, 70 each one of which, though I am sure absolutely accurate, showed a total disregard for the human relations embodied in industrial relations that we are talking about. Each was based on a total ignoring of the withdrawal of liberties which have existed for 100 years, as proposed by his Cabinet and his Government, and may involve people being sent to prison—without doubt there is that possibility—as a result of what he is now saying is the proper philosophy of a true Englishman.
I want to say to the noble and learned Lord that there are millions of workers who do not share that philosophy, who believe that what they have been doing, and their fathers and grandfathers have been doing, is the right and honourable thing to do. They will—if your Lordships will excuse me—be damned before they will do anything differently in relation to their industrial activities. The noble and learned Lord said that there had been a failure of communications. Indeed there has, because he has answered all the arguments that I did not raise, and not one of the ones I did. I made it clear that I was talking about maintenance not as an example of a money debt for which you can have a committal order made against you, but as an example of the way men feel about certain things, and when they feel about principles in a certain way threats of imprisonment, threats of injunctions, mean nought. They mean nought to a man of principle and courage. Such men man our pits and steelworks, and produce the wealth from which many of us in this Committee derive considerable benefit. We need them to work for the economy of the country, and we need them to have good industrial relations.
This clause is a completely deceitful clause; it pretends to allege that it is giving a worker a right not to be compelled to work. It was because I wanted to test the value of that right, and the reality of it, that these Amendments have been put down and have been debated. The reality of that is: what happens when a man does not work? What happens when he strikes? Can he in certain circumstances, in exercising his freedom not to work, be sent to gaol? The answer is,"Yes, he can". The Solicitor General has said so, and the noble and learned Lord has said so 71 Let me explain the circumstances. I outlined them precisely in my first speech, and I have to do this again only because the noble and learned Lord paid no attention, or I did not make my case clear. I did not use my own words once, I quoted what the Solicitor General said. I used the shorthand phrase,"unfair strike". Admittedly this is a shorthand phrase, but I used it because the Solicitor General used and I was quoting him out of Hansard. I wanted to make clear that in the limited circumstances laid down by the Solicitor General, accurately describing this Bill, there were circumstances in which a man could have an order of the Court in the nature of an injunction (I think we are agreed about that wording) made against him and if, to use the Solicitor General's words, he did not comply with it, and refused to comply with it, he would go to gaol. Let me read this out again from column 369 of Hansard:…if, in the last resort…someone is determined to continue defying an order made in the situations defined in the Bill, he cannot be kept out of prison."—[OFFICIAL REPORT, Commons, 23/2/711I do not know what is clearer than that:"he cannot be kept out of prison"—
THE LORD CHANCELLOR
The noble Lord has said, and it is the direct contrary of what I have been saying and what is the truth, that what he can be sent to prison for is for not working, for striking. If he will only read out the words of Clause 124, to which his own Amendment is an Amendment, he will see that that is a direct contrary of the truth.
§ LORD DIAMOND
No, it is not so. I do not withdraw one single syllable. I have made it absolutely clear that the reality of the right not to work is the right to strike, and the conditions in which you strike can send you to gaol.
§ I outlined the conditions. I am afraid it is necessary to go over this all over again, although I apologise for detaining the Committee.
§ SEVERAL NOBLE LORDS: Oh!
§ LORD DIAMOND
Some noble Lords opposite have no doubt understood what I said the first time, but this does not apply, apparently, to everybody. Again, I have been challenged by the noble and learned Lord as to what I have said. What I have referred to—again in the words of the Solicitor General—are the circumstances in which the two remedies, one of which is an order for contempt of court, can arise. Those circumstances are organisations or individuals calling, procuring or organising a strike in the circumstances that the organising or procuring is outside the scope of any authority from any registered union. So you can get an unregistered union, or a person acting with authority from an unregistered union, or a person acting without authority from a registered union, such as a shop steward acting in anticipation of the strike being made official, but not yet official, in all those circumstances doing things which, in the final event, the Court will say they should not do because it is an unfair strike as laid down by this new philosophy, in contradistinction to the philosophy which has held good over the past century, and they can be sent to gaol. That is the clear position. That is the position which I said in my first speech is utterly foolish it terms of human relations and industrial relations, and is something which ought not to be in any Bill, and we shall vote against it.
§ 6.7 p.m.
§ On Question, Whether the said Amendment (No. 276E) shall be agreed to?
§ Their Lordships divided: Contents, 54; Not-Contents, 136.73
|Addison, V.||Cooper of Stockton Heath, L.||Hilton of Upton, L. [Teller.]|
|Archibald, L.||Davies of Leek, L.||Hoy, L.|
|Bacon, Bs.||Diamond, L.||Hughes, L.|
|Bernstein, L.||Donaldson of Kingsbridge, L.||Jacques, L.|
|Birk, Bs.||Douglas of Barloch, L.||Kennet, L.|
|Brockway, L.||Douglass of Cleveland, L.||Leatherland, L.|
|Brown, L.||Faringdon, L.||Lindgren, L.|
|Buckinghamshire, E.||Gaitskell, Bs.||Llewelyn-Davies of Hastoe, Bs.|
|Champion, L.||Garnsworthy, L.||Lloyd of Hampstead, L.|
|Collison, L.||George-Brown, L||McLeavy, L.|
|MacLeod of Fuinary, L.||Shackleton, L.||Taylor of Mansfield, L.|
|Moyle, L.||Shinwell, L.||Walston, L.|
|Pargiter, L.||Slater, L.||Wells-Pestell, L.|
|Phillips, Bs. [Teller.]||Snow, L.||White, Bs.|
|Popplewell, L.||Sorensen, L.||Williamson, L.|
|Raglan, L.||Stonham, L.||Wright of Ashton under Lyne, L.|
|Ritchie-Calder, L.||Stow Hill, L.|
|Royle, L.||Strabolgi, L.|
|Sainsbury, L.||Summerskill, Bs.|
|Aberdare, L.||Falkland, V.||Monk Bretton, L.|
|Ailwyn, L.||Ferrers, E.||Morrison, L.|
|Albemarle, E.||Ferrier, L.||Mountevans, L.|
|Alexander of Tunis, E.||Foot, L.||Mowbray and Stourton, L. [Teller.]|
|Amory, V.||Fortescue, E.|
|Auckland, L.||Gage, V.||Napier and Ettrick, L.|
|Baldwin of Bewdley, E.||Garner, L.||Northchurch, Bs.|
|Balerno, L.||Gisborough, L.||Oakshott, L.|
|Balfour, E.||Goschen, V. [Teller.]||Ogmore, L.|
|Barnby, L.||Grenfell, L.||O'Neill of the Maine, L.|
|Beauchamp, E.||Gridley, L.||Poltimore, L.|
|Beaumont of Whitley, L.||Grimston of Westbury, L.||Radnor, E.|
|Belhaven and Stenton, L.||Grimthorpe, L.||Ranfurly, E.|
|Belstead, L.||Hacking, L.||Rankeillour, L.|
|Berkeley, Bs.||Hailes, L.||Rathcavan, L.|
|Bessborough, E.||Hailsham of St. Marylebone, L. (L. Chancellor.)||Rea, L.|
|Bledisloe, V.||Rhyl, L.|
|Boston, L.||Hankey, L.||Rochdale, V.|
|Bourne, L.||Hatherton, L.||Rothermere, V.|
|Bradford, E.||Headfort, M.||Rothes, E.|
|Brecon, L.||Henley, L.||Ruthven of Freeland, Ly.|
|Brougham and Vaux, L.||Hertford, M.||St. Aldwyn, E.|
|Buccleuch and Queensberry, D.||Hives, L.||St. Helens, L.|
|Byers, L.||Hood, V.||St. Just, L.|
|Clifford of Chudleigh, L.||Howard of Glossop, L.||Salisbury, M.|
|Clwyd, L.||Inglewood, L.||Sandford, L.|
|Colyton, L.||Jellicoe, E. (L. Privy Seal.)||Sandys, L.|
|Conesford, L.||Jessel, L.||Sinclair of Cleeve, L.|
|Cork and Orrery, E.||Kemsley, V.||Somers, L.|
|Cornwallis, L.||Killearn, L.||Strang, L.|
|Cottesloe, L.||Kindersley, L.||Strange, L.|
|Courtown, E.||Kinloss, Ly.||Strange of Knokin, Bs.|
|Craigavon, V.||Latymer, L.||Strathcarron, L.|
|Crathorne, L.||Lauderdale, E.||Strathclyde, L|
|Crawshaw, L.||Lloyd, L.||Swaythling, L.|
|Daventry, V.||Loudoun, C.||Swinton, E.|
|De Clifford, L.||Lyell, L.||Tanlaw, L.|
|Denham, L.||MacAndrew, L.||Tenby, V.|
|Derwent, L.||McFadzean, L.||Teviot, L.|
|Digby, L.||Macpherson of Drumochter, L.||Thorneycroft, L.|
|Drumalbyn, L.||Mancroft, L.||Tweedsmuir of Belhelvie, Bs.|
|Dundee, E.||Margadale, L.||Vivian, L.|
|Eccles, V.||Merrivale, L.||Windlesham, L.|
|Elliot of Harwood, Bs.||Mersey, V.||Wolverton, L.|
|Emmet of Amberley, Bs.||Milverton, L.||Wrottesley, L.|
|Exeter, M.||Monckton of Brenchley, V.||Wynford, L.|
Moved accordingly, and on Question, Motion agreed to.
§ 6.16 p.m.
LORD STOW HILL rose to move Amendment No. 276J:
Clause 125, page 93, line 21, leave out paragraph (b).
§ The noble Lord said: This is a probing Amendment which I think raises an issue of some importance as to the effect of the Bill, and may I put it to the noble and learned Lord in this way? If 74 one looks at Clause 32 of the Bill one sees that it is the clause which makes collective agreements enforceable unless the contrary is stated in a collective agreement.
THE LORD CHANCELLOR
On a point of Order, I understand that the Question of Clause 124 standing part was not put. So perhaps we had better go back.
§ On Question, Whether Clause 124 shall stand part of the Bill?75
§ LORD CONESFORD
There is one point I should like to put to my noble and learned friend because I am not quite clear about the effect of the clause as drafted. It may be that he can answer my point straight away; otherwise it is a point he may like to consider. The first subsection says, leaving out the words that are not necessary for my purpose:No court shall, whether by way of—(a) an order for specific performance…or(b) an injunction…compel an employee to do any work…".What I am not quite clear about is this. Is this subsection a restriction on the court, enjoining that it is not to make an order or an injunction which appears to have that effect, or is it a statement that, should the court inadvertently do so, what the court orders or prohibits shall have no effect, or be null and void, so far as compelling a person to work is concerned? The point seems to me to be of a little importance because, if the first is true and it is meant as a restriction on the court, then, should the court blunder and make an order which did apparently have that effect, it might be necessary to deal with the matter by way of appeal. If, on the other hand, the effect of the court's so doing were merely that it would be null and void so far as compelling any man to work was concerned, that would be more satisfactory. That is the doubt that I have about Clause 124 subsection (1). I have a similar question, of course, on subsection (2), but I have said enough about it to show my noble and learned friend what the point is that puzzles me.
THE LORD CHANCELLOR
I think the answer is that it means both. I think it means both that the court may not do it and that, if it does it, it is of null effect.
§ LORD DIAMOND
I am very grateful to the noble and learned Lord for his help in ensuring that we had an opportunity of saying a word on the Question that this clause shall stand part, but I do not propose to delay your Lordships at all because I made my views and my Party's views absolutely clear on this clause when I spoke to the Amendment.
§ Clause 124 agreed to.76
§ Clause 125 [Collective agreements]:
LORD STOW HILL moved Amendment No. 276J:
Page 93, line 21, leave out paragraph (b).
§ The noble Lord said: The point I should like to raise with the Government on paragraph (b) of Clause 125—and I do so, as I said before, for the purpose of probing—is this. I want to know what the view and intention of the Government is with regard to the effect of prohibiting any court other than the Industrial Court from entertaining a claim for damages for breach of a collective agreement. If I may just go back a short distance, Clause 32 of the Bill, as the noble and learned Lord knows so well, makes a collective agreement enforceable unless there is contained in that agreement some indication that it is not to be enforceable.Prima facie, if no more were said that would mean that any party to a collective agreement would have the ordinary rights to approach any common law court and ask for damages for breach of that collective agreement if he could show that it had been broken. Perhaps one ought to qualify that general statement by saying that that will not be applicable to a collective agreement which comes within the scope of Section 4 of the Trade Unions Act, 1871; but many collective agreements will not come within the scope of that section and, notwithstanding the provisions of that section, will be enforceable by an ordinary action for damages in a court. That would be the prima facie effect of Clause 32.
§ One then looks at Clause 34 and finds that it is to be an unfair industrial practice for any party to an enforceable collective agreement to break that agreement. As a result of committing that unfair industrial practice the party at fault renders himself liable to proceedings under Clause 97 of the Bill, the clause which deals with access to the Industrial Court in order to enforce a claim in respect of an unfair industrial practice. As has been said many times, the only relief which the Industrial Court is empowered to award under Clause 97 is the three types of relief specified in subsection (3)(b), which empowers the Court to make an award for compensation.
I should like to know whether I am right in supposing that the effect of
Clause 125(b), in relation to which I am moving my Amendment, is to annul the right which would otherwise have existed to go to the ordinary common law courts and ask for damages for breach of a collective agreement. As I read it, the answer must be"Yes".
No court other than the Industrial Court shall entertain any proceedings…to enforce the collective agreement or claim damages for a breach of it.
I should have thought it is clear—unless there is something that I have missed—that under the Bill the Industrial Court cannot entertain a claim for damages; the Industrial Court can only award compensation on the discretionary basis. It is no good asking the Industrial Court to enforce the ordinary common law claim for damages for breach; therefore the case cannot be brought before the Industrial Court.
§ The clause provides that no court other than the Industrial Court can award damages for such a breach. It seems to me that the combined effect of the two groups of wording to which I have called attention is that neither the Industrial Court nor any other court can award damages for breach of a collective agreement. I would put it to the Government that that is the effect. I raise it because Clause 32 is an extremely important clause, and it is right that the public should know precisely what the clause does. We in this Committee, particularly as a revising Chamber, should bring to the light of day that that is the consequence. And if, in fact, that is the consequence which it carries, I dare say that that is precisely what the Government intend. They wish to substitute the discretionary remedy to obtain an award in compensation from the Industrial Court from the precise common law remedy to obtain damages for breach of such a collective agreement which otherwise could be obtained before a common law court.
§ If I have correctly interpreted the clause and spelt out the consequences, I would make only one additional comment. I would respectfully submit to the Government, not by way of criticism of Ministers but criticism of their advisers—I always criticise them very sparingly—that it would have been possible to make that meaning clearer. It could clearly be said, I should have thought, that no right will lie in damages for breach of a 78 collective agreement which otherwise would have lain. What I am intending to do in ventilating this particular project is to ascertain from the Government whether or not I have correctly interpreted the effect of the clause.
THE LORD CHANCELLOR
So far as I have been able to follow from listening to the noble Lord, I think he has got it exactly right. The intention is to give exclusive jurisdiction to the Industrial Court in respect of proceedings concerning the enforcement of collective agreements, and when they choose to award a money remedy, the remedy that will be awarded is compensation awarded in accordance with this Act and not damages, in so far as damages would be awarded otherwise on common law principles. In order not to mislead the noble and learned Lord, Lord Stow Hill, I think that I ought to make one point clear, although it is simply a pedantic one. There are collective agreements —at any rate in theory though there may not be many—which can be enforceable now, but the presumption is that they are not intended to be and therefore most of them are not. The enforcement of such collective agreements will by virtue of this clause be transferred to the Industrial Court. The enforcement of these agreements, if there are any, would under this Clause 125 be transferred to the Industrial Court, as well as those which are rendered enforceable for the first time under Clause 32, and it may be that this is what animated the draftsmen in drafting the clause as they have done. The last thing I would do is to claim expertise as a Parliamentary draftsman. I have had enough humiliating experiences in attempting Parliamentary draft-manship to know that this claim would be very shortly exposed. The broad answer to the noble and learned Lord, I think, is that he has got it exactly right.
§ Amendment, by leave, withdrawn.
§ Clause 125 agreed to.
§ Clause 126 [Unfair industrial practice in breach of contract of employment]:
§ On Question, Whether Clause 126 shall stand part of the Bill?79
§ THE CHAIRMAN OF COMMITTEES: Clause 125 has been dealt with.
§ Clause 126 agreed to.?
§ Clause 127 [Avoidance of encroachment on jurisdiction of Industrial Court or of industrial tribunals]:
§ 6.30 p.m.
LORD DIAMOND moved Amendment No. 276L:
Page 94, line 28, leave out ("may") and insert ("shall").
The noble Lord said: Normally when I am trying to catch up on myself I have a longish Amendment to read out which enables me to find out what I am going to talk about, but this is one of those curiously short ones which does not give one much opportunity. I must try to arrange that we do not move so fast in future. The purpose of this Amendment is to satisfy ourselves that the provision made in the Bill is necessary, because it does not seem to be so. What the Bill is dealing with at this point is an action starting in one court which may, as the action develops, be found to be more suitable to be taken in another court. That is as I understand it, and I think it was again the Solicitor General who said that the normal thing would be to start an action of this kind in the High Court where it was a possible borderline case, and if it was found later to be appropriate for the Industrial Court, then it Should be transferred to the Industrial Court. Subsection (3) of Clause 127 gives power to the Court before which the action is brought to stay the proceedings
if it is satisfied that the act so alleged is one in respect of which, if it were done, proceedings under this Act could be brought before the Industrial Court or an industrial tribunal".
The Bill says that the Court"may"stay the proceedings, and the Amendment proposes that the Court"shall"stay the proceedings. What I have failed to understand, although I have read the previous debate on the point in another place, is why there is any need to have
a double option the first option being"may"instead of"shall", and the second option being
if it is satisfied that the act so alleged
is one in respect of which, if proceedings were brought, they ought to be brought before the Industrial Court. If the court is satisfied it will transfer; if it is not satisfied then it will not transfer. So why should the word be"may"when the condition of being satisfied gives the count, I should have thought, any flexibility that it needed? That is the sole point, and it is not a political point at all. I beg to move.
THE LORD CHANCELLOR
I hope to persuade the noble Lord that this is not a good Amendment. I agree with him that there are no politics in it at all. It is a pure question of the convenience of the parties and the administration of justice. I think that if he will bear with me he will find that the reason is sufficiently obvious if one reflects upon the nature of events. It is of course the same language as is used in the Arbitration Act, for rather similar reasons. Although the normal practice is for a court to stay where Section 4 of the Arbitration Act applies, it is not invariable because there are exceptional cases; and this is in order to prevent duplications of proceedings and to prevent a situation arising when proceedings may abort at a relatively late stage.
Let me give two examples. In a single skein of events which surround strike action there may be three or four sources of complaint. Of those three or four sources of complaint, all three or all four may prove to be wholly unfounded or wholly justified—that is one option; or two may be unfounded and one may be justified. Or one can ring the changes. It may well be that at a fairly late stage of the proceedings, after the facts have been ventilated, a new course of action may seem to be the true one. The intention of this clause is that the priority, if I may put it in that way, shall be given to the Industrial Court in matters which are within its jurisdiction. But let us assume a set of circumstances in which four or five different matters of complaint arose out of the same set of proceedings. It would be highly inconvenient if the matter alleged to be an unfair industrial practice were relatively peripheral to the 81ss real cause, or, alternatively, if at a relatively late stage in the proceedings it were suddenly discovered that what had been pleaded as an ordinary breach of contract or tort could have been pleaded as an unfair industrial practice. It would obviously be highly expensive for both sets of parties, and inconvenient to the administration of justice, if those proceedings had to abort and a new set of proceedings had to be started in the other court. It is on account of the possible duplication of proceedings, therefore, that this discretion is left with the court but it is intended that the Court should exercise its discretion in the ordinary course in favour of the stay.
§ LORD DIAMOND
I can only say how grateful I am to the noble and learned Lord for two things. First, for making it clear what they purpose of the word"may"is and the appropriate way in which it might be used, and secondly for introducing me to a new concept of abortion, for which I am truly grateful. In those circumstances, I ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.37 p.m.
§ LORD DIAMOND moved Amendment No. 276M:
Page 94, line 44, at end insert—
("(5) Any applicant on an ex-parte motion in the High Court or Court of Session shall give an undertaking that he knows of no circumstances by reason of which the National Industrial Relations Court or an Industrial Tribunal could have jurisdiction over the act for which an injunction or interdict is sought. Furthermore, any ex-parte injunction or interdict may be given in the High Court or Court of Session in any action involving or touching upon any workers' organisation.")
The noble Lord said: I am in a little difficulty with this Amendment because I should like to move only half of it, but as I well understand that is not a convenient method. I move the Amendment to make it clear that, having read the proceedings in another place, I am now satisfied that the first five lines of the Amendment should not be pressed. But the last three lines read:
Furthermore, any ex-parte injunction or interdict may be given in the High Court or Court of Session in any action involving or touching upon any workers' organisation.
I should have thought there was a reasonable case for inserting those words at line 44, which is at the very end of this clause.
§ The purpose of this Amendment is to deal with the problems arising out of an ex-parte injunction. I should have thought that the Court would be extremely jealous about this kind of action, and that therefore an Amendment along these lines would be helpful in avoiding unnecessary expense and in simplifying procedure. I do not want to press the Amendment further than that, but I should be grateful if the Minister in charge would let the Committee know what he feels about it. I beg to move.
THE LORD CHANCELLOR
The noble Lord told me that he was really only moving half this Amendment, and I am afraid it was the subject of a certain misunderstanding with the noble Lord, Lord Stow Hill, of which I have already complained. The Amendment is clearly rather strangely drafted, and I think that in the form in which it is drafted there must be a misprint of some kind, and for that reason I assumed that it was not going to be moved at all.
§ LORD DIAMOND
There is a misprint in fact. I am sorry; it is entirely my fault. The word"any"should read"an"—"an ex-parte injunction".
THE LORD CHANCELLOR
That is what was said in the House of Commons, and yet the misprint reappeared. Even so, despite the assurance that it should read"an", I think it really should read"no". Because of this extraordinary complexity in the actual words of the Amendment I thought that perhaps the noble Lord was not going to move it. However, if he will look at Schedule 3, paragraph 22, I think he will see that ex-parte injunctions cannot be granted in the Industrial Court. Equally, in cases where what is alleged is an unfair industrial practice that would immediately be dissolved in the High Court, because if the High Court were asked to give an ex-parte injunction they could only be"diddled"into doing it by concealing the fact that what was alleged was an unfair industrial practice; clearly it would be quite contrary to the terms of the Act we have been discussing for them to grant one. It therefore follows that the Amendment is aiming at preventing something which, unless there is deliberate deception or fundamental blunder of some kind, cannot happen, and I do not think either will be prevented or avoided by 83 putting in the Act another clause which would not itself guard against either deliberate deception or fundamental blunder.
It is quite clear that an ex-parte injunction in respect of an unfair industrial practice would not lie in the High Court, or an order of that nature in the Industrial Court. In cases where an ex-parte injunction would lie against a union in respect of something quite different from what is discussed in this Bill, something which is not covered by the conception of an unfair industrial practice, I should have thought there was no particular reason why a union should be given any greater privilege than it has got now. But the noble Lord has not suggested that it is his intention to create that effect, and in view of the fact that I was completely in the dark as to what the true phraseology of the Amendment should be or which part of it, if either, was effective, I really think perhaps the sensible course would be to ask leave to withdraw it.
§ LORD DIAMOND
I appreciate the difficulties which the noble and learned Lord has touched upon and under which I am suffering somewhat myself. May I, before withdrawing the Amendment, which I shall certainly seek to do in a moment, put a further point which I understand is possibly in the minds of those who originally conceived this Amendment? The Amendment deals with"any workers' organisation"; that is to say, it does not deal with a registered union. I think: the point here might well be that an organisation of workers, which because it is not registered is not regarded as a trade union, ought nevertheless to continue to have recourse to the ordinary courts because they are unregistered and they are barred from recourse to a remedy in the Industrial Court. If those facts are right, it seems to me that this is, at all events, a possible method of giving some relief. On the assumption that one is dealing with a workers' organisation; namely, an unregistered body, which does not have recourse for a remedy to the Industrial Court because it is barred by this Bill from having such recourse, ought it not to continue to have recourse to the ordinary courts in the ordinary way? This is not obvious from a superficial reading of the Amendment. I leave the point 84 with the noble and learned Lord, unless he wants to say anything further now.
THE LORD CHANCELLOR
I am still a little puzzled about it, because I had genuinely thought that the purpose basically behind the Amendment was to stop ex-parte injunctions being brought against unions. The reason I thought that was that unions notoriously dislike having ex-parte injunctions ordered against them. In his last question the noble Lord is postulating an unregistered workers' organisation as the plaintiffs. So far as I can see, the unregistered organisation is not having anything taken away from it which it has at this moment. In the ordinary course I should have thought it was doubtful if they could act as plaint-tiffs; it would be the officials or trustees who would bring an action for ex-parte injunction, and I do not know of anything in the Bill which would stop them doing so. They cannot complain of unfair industrial practice because they would have to go to the Industrial Court. But it is not taking away something they have at the moment. I am not clear what the noble Lord wants to preserve which they have got. If the noble Lord will write to me about it I will try to clear it up, but at the moment I am rather floundering as to what is in his mind.
§ LORD DIAMOND
As that makes two of us, I think the proper course is for me to seek your Lordships' permission to withdraw the Amendment, and to write to the noble and learned Lord, as he suggests.
§ Amendment, by leave, withdrawn.
§ 6.46 p.m.
§ On Question, Whether Clause 127 shall stand part of the Bill?
§ LORD STOW HILL
On the Question, Whether the Clause shall stand part, I should like to put a question to the noble and learned Lord. I cannot for the moment discover what is the function of subsection (4) of that clause. Your Lordships will see that the effect of that subsection is in relation to a case in which proceedings in tort are brought
It is to be noticed that that subsection relates only to trade unions; that is to 85 say, the organisation of workers which have already been registered. They are on the register and the effect of registration therefore applies to them.
- "(a) against the trustees of a trade union…sued in their capacity as such trustees, or
- (b) against any members or officials of a trade union…sued on behalf of themselves and all other members…".
If one goes back to Clause 72 to try to ascertain what is the effect of registration, one finds that it is for this purpose twofold: when the organisation of workers registers it becomes a body corporate; it ceases to be an aggregate of individuals, it becomes a body corporate, which is a separate legal entity. That is the first consequence. The second consequence relevant to my question is in subsection (3):On the incorporation…all property and funds, of whatsoever nature, for the time being held by any person in trust for the organisation shall vest in the organization…without further assurance.That being a consequence of registration, I cannot for the moment understand what purpose is left for subsection (4). If one looks at paragraph (a), there will not be any proceedings in tort brought against the trustees of a trade union sued in their capacity as trustees, for the simple reason that any property they held on behalf of the union has automatically vested in the union as a corporate entity. Under Section 5 of the Trade Union Act 1871 property was held by trustees for a union registered under that Act. I should have thought that up to the time when this Bill becomes law that property would continue vested in those trustees for a union registered under the 1871 Act. As soon as that union became registered under this Act that property would automatically without more ado pass from the trustees to the union; it would become the property of the union and in no sense remain vested in the trustees. If that is so, I cannot understand in what circumstances, after this Bill becomes law and after an organisation of workers becomes within the meaning of this Bill a trade union by becoming registered, an action in tort would be brought against the trustees.
If one looks at paragraph (b), precisely the same question arises. The form of action against individuals on behalf of a larger body, a larger aggregate of individuals, is a statutory form of action created by the rules of the Supreme Court. It is well recognised, and it is always used for the convenience of litigants where you get a large aggregate of individuals. You select some of them 86 as defendants in an action in order to found an action against the aggregate of individuals as a whole.
Again I repeat what I said before: that once the workers' organisation which was, up to the time of its registration, an aggregate of separate individuals, becomes converted into a corporate entity as a result of registration, I cannot think in what circumstances an action could be brought against some individuals on behalf of an aggregate of individuals which no longer exists because it has become converted into a corporation. It may be not very easy to answer that point. It may be that I have it wrong and have failed to observe something. On the other hand, it may be that there is something in the points that I am taking, and I would ask the noble and learned Lord, if he cannot answer straight away, to consider whether perhaps at Report stage he might move an Amendment to leave out that subsection which, as I say, seems to have no purpose whatever.
§ 6.52 p.m.
THE LORD CHANCELLOR
I am grateful to the noble Lord for raising this point. Subject to anything he may wish to say in criticism, I think I am able to deal with it straight away. At present if you sue a union you sue its trustees, or sue it by means of a representative action. It is quite true that when the union becomes a corporate body that will be a mistake, but this subsection provides that instead of the action being struck out as being against the wrong party, it shall have effect as though it was brought against the right party, which is the new corporation. Of course it is true that existing property, under the provisions to which the noble Lord has drawn attention in Clause 72, vests from the trustees into the new corporation, but there is nothing to prevent a union that wanted to do so from setting up fresh trustees. In that case a representative action might still be possible in theory in the case of newly acquired property, or property re-transferred to them. Therefore, this clause is not purely inert; it serves a useful function, although it is mainly a drafting one.
§ LORD STOW HILL
I do not want to prolong the discussion. I would simply say in response to the noble and learned Lord's observation that I should have 87 thought that what the clause exactly does not do is to provide that an existing action is to be treated as if it were a different action.
THE LORD CHANCELLOR
I did not say an existing action. I said that if somebody mistakenly brought an action in future against trustees when they ought to have brought the action against the corporation, to quote the terms of the clause, itshall have effect as if the proceedings were brought against the trade union"—and that is what it says.
§ LORD STOW HILL
I really do not want to prolong the discussion, but with great respect it does not say that. It says that:…subsection (1) or (as the case may be) subsection (3) of this section shall have effect as if the proceedings were brought against the trade union…which is a very different thing. The other point that the noble and learned Lord made—and I accept that he may conceivably have a case—is that in which a union which has become incorporated has nevertheless vested its property in trustees entrusted with it, and in those circumstances., in accordance with the ordinary procedure in the Court of Chancery, you could join both the trustees and the union. But I cannot understand how you would, in those circumstances, bring a separate action against the trustees. You just would not establish your right. The action, I should have thought, would be adjourned by the Chancery judge to give the union an opportunity to appear and be represented. I should have thought that that was the position. I do not want to prolong a technical discussion. I am grateful to the noble and learned Lord, but I do not think he has quite given me the answer. I should be grateful if he would say that he will look at it again.
THE LORD CHANCELLOR
Certainly I will look at it again. If somebody wanted to get round subsection (1), which provides for the possibility of a stay, by suing the trustees instead of the corporation, he cannot do so because of the subsection to which the noble Lord has drawn attention.
§ LORD BERNSTEIN
During the debate in Committee to-day mention has been made of other laws which affect terms of employment, contracts of employment, et cetera. Does Clause 127 ensure that nothing within the jurisdiction of the Industrial Court is dealt with by the ordinary courts? If that is so, all right, but could it possibly mean that people could decide which court they wished to use for the purpose of whatever they have in mind? Could they go to the ordinary courts instead of the Industrial Court? Which court has most powers, the Industrial Court or the present courts?
THE LORD CHANCELLOR
I thought we had discussed this on an earlier Amendment. The situation is that a trade union may employ a driver to drive a van on its behalf, and in the course of driving its van he may knock somebody down. In that event, the trade union will, in future, be liable in tort, and so, at the moment, is the van driver. You go to the ordinary courts for damages in the ordinary way, and the Industrial Court has got nothing to do with it. Equally, a union may be guilty of inducing a breach of contract under Clause 92, we will say, or breaking a collective agreement. In that event, an unfair industrial practice is set up, and if resort is attempted to the ordinary courts the court will stay the action under subsection (1) of this clause, and the complainant will then be left to his remedy in the Industrial Court. They have two separate jurisdictions. As I tried to explain to the noble Lord, Lord Diamond, there is an intermediate position when the same set of facts may give rise to quite a number of different complaints, and it does not appear until a relatively late stage which are the effective ones, or whether they are not all effective, and there may be an overlapping of jurisdiction. In that case it is for the convenience of the parties that there should be an optional discretion in the courts to order a stay, or not to order a stay, as the substantial justice of the case demands.
§ Clause 127 agreed to.89
§ Clause 128 [Acts in contemplation or furtherance of industrial dispute]:
§ LORD DIAMOND
had given Notice of his intention to move Amendments Nos. 276N, 276Q, 276R, 276S, 276T, 276U, 276V, 276W. The noble Lord said: All the Amendments on this clause refer to one point only, which can more conveniently be taken on the Question, That the Clause stand part. In those circumstances, I am not moving any of these Amendments.
§ On Question, Whether Clause 128 shall stand part of the Bill?
THE EARL OF BALFOUR
May I ask one question? The first line of Clause 128 refers to an act done by a"person". Would that word"person"cover a representative of a trade union or, if I may use the expression of noble Lords opposite, a representative of an independent organisation of workers? Would it cover anybody? I feel that it should not be quite such a wide field.
THE LORD CHANCELLOR
The answer to that question—before the noble Lord, Lord Diamond, asks his question, which is presumably a different one—is that I think it refers to any legal person, and not to any unincorporated association, which is not a person.
§ LORD DIAMOND
As we are moving again into a field which to me is as tortuous as it is tortious (if that is the correct adjective) perhaps I should stick rather closely to my brief. I want to ask one question here. Why have the Government limited the umbrella of this clause to actions for tort? The purpose of the clause, as I understand it and as the first words make clear, is to give some kind of umbrella or protection, but it refers only to actions for tort. What is not understood is what kind of opportunity to bring actions, what kind of actionability other than in tort, would remain outside the compass of the Industrial Court's jurisdiction? The reason I ask that question is because if there is none why limit the clause? But if I have misunderstood the clause and there are some, then what justification is there for leaving them out? That is the sole purpose of the Amendments which I did not move, but which I hope will have served to give notice of the point I had in mind.
THE LORD CHANCELLOR
I am very grateful indeed to the noble Lord for making himself clear, as I hope he has done. I am feeling rather like a batsman at the nets, with a very large number of rapid balls of different types being sent down at me. I think the answer must be this. Clause 128 excludes jurisdiction in tort of any kind in respect of the limited class of action referred to. In other words, for tort in respect of those classes of action you cannot proceed at all against a person: that is to say, you cannot bring an action in the existing courts because this clause states that you cannot, and you cannot bring it in the Industrial Court because the Industrial Court does not have jurisdiction in tort as such. Therefore, you cannot do it at all.
On the other hand, there are acts which would otherwise have been a tort, in respect of which the Bill provides that they are an unfair industrial practice. Therefore this clause limits liability only to actions in tort, because other clauses of the Bill give a remedy in the Industrial Court or in the industrial tribunal to bring proceedings under the special provisions of this Bill. I think that is probably the answer to the question which the noble Lord put, but if I have not got it right I shall try again.
§ LORD STOW HILL
I am sorry to continue the argument, but may I—and I hope I am not being unduly daring—venture to ask whether the noble and learned Lord really was right in what he said about the word"person"in answer to a question put to him? He said that it was a legal person, and I would entirely agree with him on that. But I thought the question was about whether the word"person"could include an unregistered union, an organisation of workers. An organisation of workers which is not registered, and which is therefore not a trade union under this Bill, remains an organisation which was not registered under any Act at all prior to this Bill, in which case it would be an aggregate of persons.
The interpretation Act states that person"includes"persons", and I should have thought the necessary consequence was that an aggregate of persons, an unregistered trade union, was undoubtedly protected by Clause 128. Or the unregistered union could be what 91 would have been a union registered under the 1871 Act, in which case the decision in Bonsor v. The Musicians' Union stated, I thought perfectly clearly —although there was some disagreement between the noble Lords who took part in the decision on the case—that although for some purposes the unregistered union could be treated as if it were incorporated, and could be sued, for example, as an incorporated body, nevertheless it still remained in substance an aggregate of individuals. If I may respectfully submit it to the noble and learned Lord, I should have thought that the word"person"there confers the protection of Clause 128, and not only on a union which is registered under this Bill, but also on any unions which are not registered under this Bill, whether or not they were previously registered under the 1871 Act.
If I may say so, with great respect to the noble and learned Lord, if he is right the consequence is rather serious. I should have thought the clause would have a very different result from that which it is supposed to have. It would mean that actions in tort could be brought ad lib against unregistered unions, and that none of them would have the protection against actions in tort which I am sure everybody thought that Clause 128 was giving them. So I hope that the noble and learned Lord will agree with me on reflection that I may be right about that, and that he will say that his mind is not made up as to the meaning of the word"person"in that context. Now may I—
THE LORD CHANCELLOR
May I say, before we come to the substance, that I was not aware that I had said anything that was inconsistent. The only further comment or gloss on what I have said which I should feel disposed to make at the moment, is that I should have drawn attention to Section 19 of the interpretation Act of 1889, which provides that the expression"person",shall, unless the contrary intention appears, include any body of persons corporate or unincorporate for both that Act and any other Act passed thereafter.I thought I had said that"person"had its ordinary legal meaning, and I did not think I said anything different from that. I thought I was expressing a platitude and not giving rise to controversy.
§ LORD STOW HILL
I shall have to look at the printed Report to-morrow. I can only say that I thought I understood what the noble and learned Lord said, but if I attributed to him something which he did not say then I am very glad to withdraw what I said. I am also very glad now to learn that he agrees entirely that an unregistered union, a union not registered under this Bill, is undoubtedly given protection under Clause 128 against actions in tort. That is the particular point that I wanted to raise. But before we part from this very important clause, I should have thought that, again as a revising body, we should consider what is its import and what changes it makes. It is obviously intended to safeguard and keep in being the protection in respect of actions in tort which is now given by the Trade Disputes Act 1906 and, in particular, by Section 3 of that Act. It preserves those protections, I suppose, as a counterpoise to the new liabilities which are created in particular by Clauses 92 to 94 in the case of non-registered unions. However, it makes some substantial changes.
In the first place, I should have thought we ought to be conscious of the fact that the expression"industrial dispute", which in this Bill is substituted for the expression"trade dispute"which occurs in the previous Trade Union Acts, and notably in the Act of 1906, is narrower in scope; in other words,"industrial dispute"as used in this Bill is narrower in scope than"trade dispute"as used in previous Acts. It may be that when we get to the definition clause your Lordships will want to consider the expression"industrial dispute"rather more closely. But I hope the noble and learned Lord will agree with me that I am right in saying that the expression"industrial dispute"is substantially narrower, in that it does not include a dispute between workman and workman; notably, a demarcation dispute.
In respect of such a dispute, unless the employers are involved the protection which was previously afforded by Section 3 of the Trade Disputes Act 1906 does not continue. In another sense, I should have thought it was right to take note of the fact that the protection is wider than that which has heretofore been granted by Section 3 of the Trade Disputes Act 1906 in this sense: that Section 3 of the 93 1906 Act gave protection only in relation to inducing a breach of a contract of employment, whereas this provision, Clause 128(1)(a), extends the protection to procuring a breach of any contract, whether a contract of employment or not. That is an important change. Both these two changes are extremely important and it is right to take notice of them before we part with the clause.
§ LORD SLATER
Listening to the legal luminaries in regard to this particular clause, I am at a loss. Apart from the speech which has been made by my noble friend Lord Stow Hill and the replies which have been given by the Lord Chancellor, and apart from the Amendments that my noble friend Lord Diamond had down but which he withdrew so that there should be a debate on the clause itself, there is one particular phrase which appears time and time again in this clause and which I am not at all clear about. Therefore I should like the noble and learned Lord the Lord Chancellor (I did not want to interrupt my noble friend Lord Stow Hill when he was speaking) to try to help me in my understanding of this one particular phrase,"in tort". What does it mean? I know some people talk about"shall","may"and so on, but what does this mean—"in tort"? If the Amendments set down by my noble friend Lord Diamond had been pressed, then we should have had some form of clarification, no doubt, from him as to why he was moving those Amendments to delete the phrase"in tort"from the clause. I should be most grateful to the noble and learned Lord the Lord Chancellor if he would clear up this point for me, because, after all, there are certain words which appear in the dictionary but as to which, even when one looks them up, one cannot get a clear definition.
THE LORD CHANCELLOR
In answer, first of all, to the noble Lord, Lord Slater, the expression"tort"is, I am afraid, a term of English legal art. It does not apply to Scotland, where the word for a rather similar thing is"delict", but in the presence of Scots I would not say that they are the same. I should in their absence; but I should be immediately called up and told that I was wrong. But"tort"means a civil wrong for which the principal remedy is 94 usually damages; a wrong which gives rise to an action for damages in the ordinary courts of law in England.
I am not sure that I disagree with what the noble Lord, Lord Stow Hill, said in any particular. It is always difficult to follow an intricate statement of law and say that one agrees with it in toto, but I did not catch him out, as he spoke, on any particular. It is true that this Bill gives a wider protection in one important respect, in tort, than is given by Section 3 of the Trade Disputes Act 1906, because the Trade Disputes Act 1906 is limited in the case of contracts of employment, whereas this is not limited in such a way. The noble Lord is also aware, and has drawn attention to the fact, that the definition of"industrial dispute"as it appears in Clause 158 of this Bill is not identical with the definiton of"trade dispute"as it occurs in the last surviving section of the 1906 Act. He has drawn attention to one difference, at any rate: that it does not include a dispute between workmen and workmen.
It may be that, as he says, we shall have to examine those differences more closely when we come to the definition clause, but two things should be borne in mind before we do. The first is that although this clause limits actions in tort, one must read it in conjunction with the clauses which provide a remedy for unfair industrial practices. In other words, it is not really the same, although it continues and extends the tortious exemption provided by the Act of 1906. In a number of cases where the tortious exemption of the Act of 1906—the exemption from liability in tort under the Act of 1906—would have left a person injured with no remedy, this Bill may provide him a remedy in respect of the new conception of unfair industrial practice.
The second point which has to be borne in mind in dealing with the definition clause—the noble Lord's second point—is that although it is true that"who does what"remains outside unfair industrial practices, the conception of who is to be recognised as sole bargaining agent does come within the earlier special provisions of the Bill, and therefore it is slightly misleading if one simply says that the conception of industrial dispute does not include a dispute between workmen and workmen or that one extends the exemption from tortious liability to all 95 actions inducing a breach of contract, because although that is literally true one must look at it in the light of the special provisions of the Bill which provide different remedies in different sets of circumstances, some of which would overlap with the kind of situation which is dealt with in Clause 128.
§ LORD DRUMALBYN
Perhaps it might be for the convenience of your Lordships if we adjourned for three-quarters of an hour. If that is so, I beg to move that the House be now resumed.
§ [The Sitting was suspended at eighteen minutes past seven o'clock and resumed at eight o'clock.]
§ 8.0 p.m.
§ House again in Committee.
§ Clause 129 agreed to.
§ LORD DONOVAN moved Amendment No. 276DD:
§ After Clause 129, insert the following new clause:
Limitation of right to complain of unfair industrial practice
. No complaint of an unfair industrial practice shall be presented to the Industrial Court or an Industrial Tribunal after the expiration of six months from the date when the right to do so first accrued.
The noble and learned Lord said: I beg to move the new clause as set out on the Marshalled List. Unless I have missed it there is no time limit imposed by the Bill for bringing a complaint of an unfair industrial practice before either the Industrial Court or an industrial tribunal. In these circumstances it would seem that the time limit for bringing such complaints would be the time limit imposed by the Limitation Act 1939 upon the bringing of actions, because an action is defined by Section 31 of that Act as including"any proceeding in a court of law". The time limit imposed by Section 2 of the 1939 Act is six years in respect of certain specified actions, none of which is applicable here except an action
to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture
which would cover awards of compensation under this Bill. It may be that the Government will think that some special limitation should be provided in respect of complaints against unfair industrial practices. I have suggested six months after the right to bring the complaint first accrued.
I rise to support the noble and learned Lord. It is perfectly obvious that at some stage a person should be protected from any proceedings being taken against him in respect of any offence or alleged offence which may be committed under this Bill. It is not unusual for such a limitation to be placed upon proceedings being taken in other courts, even criminal courts in certain cases, and I think that there should not hang over the heads of individuals for any unlimited time, and certainly not for any particularly long time, the possibility of being brought before this particular Court. Perhaps the Government will see the necessity for a limitation of this kind and will accede to the request of the noble and learned Lord.
§ BARONESS TWEEDSMUIR OF BELHELVIE
I think we are all in agreement with the noble and learned Lord, Lord Donovan, that it is necessary to have time limits for bringing complaints of unfair industrial practices, and I am glad that the noble Lord, Lord Janner, supported him. We feel, however, that because of their widely varying nature different time limits will probably be needed for complaints under different headings. Therefore time limits for complaints to the N.I.R.C. will be provided in the Rules of the court, and these will be subject to the Negative Resolution procedure in Parliament. Paragraph 5 of Schedule 6 imposes a time limit of only four weeks for complaints to an industrial tribunal of unfair dismissal. A Government Amendment. at a later stage under Clauses 102 and 103, will extend that time limit to all complaints to industrial tribunals. In these circumstances perhaps the noble and learned Lord may feel disposed to withdraw his Amendment.
§ LORD DIAMOND
I do not know whether the noble and learned Lord is wholly satisfied—I am sorry to intervene at this stage. If he is not going to withdraw his Amendment then I yield to him immediately.
§ LORD DONOVAN
I was going Ito withdraw it. I am quite sure that the Government have seen the sense in the spirit of this Amendment, that some time limit should be imposed. I gather that they accept that in principle and I leave the wording of the regulations to them.
I think that the idea of regulations is an advance; but it does not go so far as I and a number of other noble Lords would want it to go. Why should there not be, as in other Acts, a specific limitation, without our having to resort to regulations which can be changed and which may not provide the limitation we require? If an undertaking were given that the matter would be looked into with a view to limitations being placed upon the time for bringing actions in respect of certain separate alleged' offences, then the Committee could consider the various proposals. But I should not be happy in a position where that was not provided for within the Bill.
§ LORD DIAMOND
I am sure the Committee would want me to thank the noble Lord, Lord Donovan, and those who supported his Amendment for bringing such an important issue before us, and I am most grateful to the noble Baroness for the way in which she adopted and, with respect to the noble and learned Lord, improved on the principle by saying that there should be different periods for different cases. So far we all march happily together. But I think we should be happier if she were to tell us more about it. We are all aware of the Negative Resolution procedure. That means that a number of regulations would be brought before us covering everything under the sun, including the particular period. If we did not like the particular period we could vote against everything under the sun—even though, apart from the period, everything under the sun was acceptable. That is not a satisfactory way to deal with this matter. Nor would the Affirmative Resolution procedure be an adequate method, unless the noble Baroness could give an undertaking that there would be separate Resolutions for each particular point; and of course she is not able to give that kind of undertaking. As we are enjoying the invaluable presence of the noble and learned Lord, Lord Donovan, and the noble and learned Lord the Lord 98 Chancellor (who is in a particularly happy and expansive mood after the short interval) I should have thought that it would be appropriate to entice the noble Baroness into going further and saying what is in the Government's mind as to the period which might be appropriate.
§ 8.10 p.m.
§ LORD BEAUMONT OF WHITLEY
I wonder whether one of the ways in which this matter should be tackled is by the provision of time limits within the regulations. Obviously that is a very sensible thing, if you wish to have different limitations for different kinds of industrial practices, which is entirely reasonable in itself. But perhaps what is needed in addition is an overall safeguard for the longest possible time the Government have in mind. Six months may be too short for this purpose, but for certain situations a longer period might be needed in order to bring a complaint. If the Government think that six months may be too short why do not we write into the Bill an overall time limit, longer than which no complaint of any kind can be brought; but at the same time allow under regulations, varying time limits for various industrial offences. It seems to me that that should meet the point raised by the noble Lord, Lord Janner, and other noble Lords, and I wonder whether the Government would give it their consideration.
BARONESS TWEEDSMUJR OF BELHELVIE
I should be glad to try to explain a little of what was really the general outline of our attitude to the Amendment of the noble and learned Lord. I think that, as a Committee, we are agreed that it is necessary to have time limits; and I would have thought, from the way in which the noble Lord, Lord Diamond, and the noble Lord, Lord Beaumont of Whitley, spoke, that perhaps we were not entirely agreed on the extent of the time limit, whether it should be a straight time limit on every occasion or a variable time limit.
I am asked what is our thinking on this matter. Perhaps I may say that in the case, for example, of an alleged unfair dismissal I think it reasonable to expect that an individual would bring his complaint to an industrial tribunal as 99 quickly as possible. That is why a time limit of four weeks is provided in paragraph 5 of Schedule 6. As the Committee know only too well, there are some other very important issues which come before the N.I.R.C. which could involve considerable sums in compensation and very delicate questions of industrial relations. That is why we think that the time limit in each case should be longer. But whether it should be six months is, I think, a matter which we could debate at Report stage when we hope to have put down relevant Amendments.
So far as the proceedings in the N.I.R.C. are concerned, we thought it a good idea to have a degree of flexibility in fixing the time limits. This, we thought could best be achieved through the court's rules. As I said earlier, we intend to lay specific Amendments concerning complaints to industrial tribunals under Clauses 102 and 103, and here we thought that a time limit of four weeks would be about right. It is the same limit as is concerned with complaints of unfair dismissal. I have tried to explain a little more what is in our minds. It is very difficult to get it exactly right. We take the principle lying behind the noble and learned Lord's Amendment, but we think that six months is probably too long, and we believe that the noble Lord, Lord Beaumont of Whitley, is with us on that.
§ LORD HOY
We are grateful to the noble Baroness for what she has said, and for the fact that she hopes to have Amendments down on Report. I would only emphasise that this is of importance to the Committee, because if we let it go beyond that stage, and it is to be done by Negative Order, neither House would have the right to make any Amendments. We should then be confronted with Orders which we could either accept or reject. We hope your Lordships are to have a real opportunity to discuss proposals, and we are grateful to the noble Baroness for the offer which she has made to the Committee.
§ LORD DONOVAN
I put in"six months"merely in order to start a discussion. In view of what has been said, and in view of the large measure of agreement which I think there is in 100 principle, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 130 [Gas, water and electricity workers]:
§ Clause 130 agreed to.
§ LORD STOW HILL
I think that the Question, Whether Clause 129 shall stand part of the Bill? has not been put. I wanted to make an observation on Clause 130.
THE LORD CHANCELLOR
Further to that point, surely the last Amendment we were discussing, that of the noble. and learned Lord, Lord Donovan, was a new clause after Clause 129, and therefore we must have agreed Clause 129. I heard the noble Lord, Lord Strang, say that we did, and I think that the noble Lord, Lord Stow Hill, is wrong.
THE LORD CHANCELLOR
Let us be clear. I did rise on a point of order to suggest that we had done Clause 129 stand part. I am not absolutely sure that the Question, That Clause 130 shall stand part, has been agreed to. I want to be sure of that because we must keep in order.
§ LORD STOW HILL
I am not sure whether I am in order but I should very much like, if it can be done, to ask a purely probing question on Clause 130. If the Question has been put, then obviously I cannot.
THE LORD CHANCELLOR
I heard the Lord Chairman say that the Question had been put; but if it is the will of the Committee perhaps the Lord Chairman would turn a blind eye to the noble Lord, Lord Stow Hill, and let him put his question. The last thing we want to do is to"bulldoze"anything. The 101 Question, Whether Clause 129 shall stand part of the Bill? has been put, but I was not myself sure whether the Question, Whether Clause 130 shall stand part of the Bill? had been accepted. If the noble Lord, Lord Stow Hill, may proceed, with the leave of the Committee, perhaps that would be a convenient course to adopt.
§ LORD STOW HILL
I should be most grateful to the noble and learned Lord and to the Committee if they would be so kind as to turn a blind eye to me. I think, in recompense to the Committee, that I can shorten my question very much by simply saying that the Donovan Commission recommended, as I read page 224 of their Report, that both Sections 4 and 5 of the Conspiracy and Protection of Property Act, 1875, should be left un-repealed. The scheme of the Bill obviously is to substitute the emergency provisions which begin with Clause 134 for the existing provisions in Sections 4 and 5 of the 1875 Act and similar provisions relating to electricity. The Government have not accepted the recommendations in toto; they have accepted them in part. I should like to ask what is the thinking behind that decision, and why it is that they have thought it right to repeal Section 4, not in conformity with the Donovan Commission Report, but not to repeal Section 5 which remains in effect when Section 4 has gone. The Donovan Commission recommended that both sections should stay. I should be very grateful if I could be told the thinking behind that departure from Donovan, and that distinction between Sections 4 and 5.
§ 8.18 p.m.
THE LORD CHANCELLOR
The question which the noble Lord, Lord Stow Hill, has asked is a perfectly reasonable one; and indeed to some extent I referred to it in a previous speech when we were dealing with the question of the liability of the individual under the terms of this Bill and elsewhere. As the noble Lord has correctly stated, the Donovan Commission were concerned to retain both Sections 4 and 5 of the Conspiracy and Protection of Property Act 1875. The Government have decided to retain, in accordance with the Donovan Commission, Section 5 but, out of accordance with the Donovan Commission, to repeal Section 4. This clearly requires explana- 102 tion. Whether it is right or wrong is evidently a question of judgment. For those who may not be absolutely au fait at this moment of time with the provisions of Sections 4 and 5 of the Act, let me, with apologies to those who are, say some words of explanation. Both deal with strikes which are in breach of a contract of employment. Section 4 deals with strikes with respect to two named public utilities—gas and water. That was amended by the Electricity Act 1919, by adding a third public utility—electricity. So that Section 4 of the 1875 Act as amended, protects by criminal sanctions strikes in breach of contract in respect of three named public utilities.
Section 5 does not relate to specific types of undertaking at all. It protects with criminal sanctions acts the effect of which would be to endanger human life, cause serious bodily injury or expose valuable property, whether real or personal, to destruction or serious damage.
The Government had to consider whether either or both of those sections had any live force. Obviously, there were strong arguments for accepting the view of the Donovan Commission that they both had live force, but the Government position was taken before the events of last winter. Public utilities, such as electricity, water and gas, can cause immense suffering to the community, and it was thought in 1875, and the Donovan Commission thought as recently as in the period of office of the last Government. that they really ought to stand in a category by themselves. We only differed from that after careful consideration and we differed precisely because we intended to keep Section 5 on the Statute Book.
There were two factors which led us to come to—I will not call it a compromise decision but a different decision from that of the Donovan Commission. In the first place, to confine the list of public utilities to three is to some extent arbitrary. We cannot get away from the fact that, in the complex and sophisticated conditions of modern life, it is not only three public utilities which can cause damage on the scale which was obviously contemplated by the framers of the legislation of 1875. Therefore, the retention of an arbitrary list of public utilities required justification. If in fact it was not to be justified, we would then 103 be faced with the extremely difficult problem of deciding what we were going to put in and what we were going to leave out—a problem which I dare say could be solved by Parliament and the Government but which on the whole we thought it was wiser not to attempt to answer. In examinations, to answer five questions secures an honours degree, but we thought this was one question we would not attempt to answer.
The second line of argument is this. Why keep Section 5? The answer is because it provides the real sense of what was done in Section 4. If the effect of what is done in breach of contract is to endanger human life—for example, by exposing a patient in an operating theatre to a sudden cessation in the middle of the operation—surely that ought to be dealt with, though the deterrent of a £25 fine, the maximum at present existing, is not something which one might think would instil fear into the heart of the more determined criminals. We think that the actual exposing of human life to danger by a deliberate breach of contract is something which ought to be subject to criminal penalties, as should also be the exposing of property to great damage. I have had such a case actually in my professional life, and I would slightly smudge it so as not to give away the actual case. Suppose, for instance, that some action at one of those new power stations had the effect of stopping certain operations, which, though it might not actually endanger human life, might cause the evacuation of and damage to a large area. Surely that ought not to be allowed to be done in breach of contract. At the moment, the law is that it should not be done, and why should we change the law so that it can be done? If we keep this provision under Section 5, there is no real value in Section 4. That, at any rate, is the argument.
I would supplement my argument with another consideration which I hope will weigh at any rate with the lawyers in the House. I think it is not the less important for being slightly technical. Although the only direct sanction in Sections 4 and 5 is a criminal one of a £25 fine, the consequences of a breach of Section 5 or, as the matter now stands, of Section 4, though that will be removed if this Bill becomes law, have large 104 repercussive effects on the legality of what is done for the purpose of civil liability. The provisions of the law as it stands—and I think as it stands modified under the Bill—mean that certain actions are all right if the only reason for their being otherwise all wrong is that they cause or induce a breach of contract. I hope that that is appreciated. But, of course, if a breach of Section 4 or Section 5 at the moment is also involved, it is not the only reason in those cases that they cause a breach of contract: they also involve an offence under Section 4 or Section 5. Therefore, there is value in retaining the section on sanctions of one or other or both, as the Donovan Commission recommended, if only for the purpose of attracting the liability which comes from illegal action. I myself would be very slow to abolish Section 5.
If I may summarise what I have been trying to explain—because I realise that it is a highly technical argument—we did not agree with Donovan on Section 4 because the list of public utilities was arbitrary. We did agree with Donovan on Section 5, because it achieved all that was legitimately sought to be achieved by Section 4 and because we thought it still had two useful purposes. If it be said, as it is by some, that after all there have been very few prosecutions under either section—and it can be, and is, said by some with absolute truth—our belief is that people like to obey the law rather than disobey it. We do not think that the size of the penalty is the only deterrent to disobeying the law in this country. We are not impressed by the arguments that people are so bloody minded that they will disobey the law for the sake of doing so. We think it is worthwhile having a law so that people will know the kind of conduct which is considered by the community to be tolerable or intolerable; and to risk human life, to risk widespread devastation, to risk severe bodily injury is not something for the sake of which it is legitimate to commit a breach of contract. At the end of the day strikes such as these are perfectly legitimate provided that notice is given and that the Government of the day have power to defend the community. But what we say is, not without notice, not without recking the consequences. Keep the one, even if we think it is reasonable to abolish the other. In that we have the incomparable authority 105 of the noble and learned Lord and his Commission.
§ LORD DONOVAN
I am not seeking in the least to quarrel with the decision to drop Section 4. The reason why the Royal Commission decided to recommend its retention was that it differs from Section 5 in that a copy of Section 4 has to be posted up in electricity works, in gasworks and in waterworks; and the evidence of the chiefs of those industries who came before us was that that constituted a constant reminder to those engaged in their industries of the responsibility which they owed to the community. They said that it had a very valuable effect in inculcating an increased sense of responsibility in their workers. Therefore we recommended its retention. The other difference between Section 4 and Section 5, which really is in aid of the Lord Chancellor's case, is that Section 5—unlike Section 4—applies not only to employees but to employers as well.
§ 8.34 p.m.
§ LORD CONESFORD
I am one who very much regrets the repeal of Section 4. I thought the reasoning of the Donovan Commission was very strong indeed. If any of us were really to point to one of the worst features of so much that is wrong in industrial relations, it would be the absolutely reckless breaking of contracts. I pointed out in an earlier debate that the idea that a strike necessarily involves a breach of contract is wholly untrue. A strike is a concerted withdrawal of labour, and a concerted withdrawal of labour can take place in many cases without any breach of contract. I am not saying, of course, that every strike in breach of contract should involve penal consequences, but I am saying that, where the law provides a deterrent against a strike in breach of contract, we ought to be very slow to take it away. My noble and learned friend the Lord Chancellor produced cogent arguments to the effect that if we had to abolish either Section 4 or Section 5 it would be less injurious to abolish Section 4. In that he is quite correct; but provided the retention of Section 4 does no injustice to anybody I should have thought a very strong argument would be required before it was repealed.
106 If a may remind the Committee of the history of the matter, the restriction originally was confined to water and gas. Historically, it is perhaps not unimportant that a gas explosion occurred very shortly before the enactment of the 1875 Act, but electricity was subsequently added and for a short time under the Act of 1921 so were certain contracts of service entered into with local authorities. Speaking from memory, I think it would have been equally an offence, while the 1921 Act was in force, for an ambulance driver to break his contract without notice, or for those engaged in the ambulance service to break their contracts. The noble Lord, Lord Donovan, was too modest, I think, in not quoting the admirable paragraph 838 of his Royal Commission's Report. I will not weary the Committee by reading the whole of it, but perhaps I might read a few sentences:The effect of the section is therefore to give to the employer and through him to the public previous warning of a stoppage which, in view of the nature of these industries, may expose the public to special danger. The difference between these public utility industries and other service industries (such as public transport) is that they affect every household, and that a stoppage of supplies without warning (and also, for example, in the case of gas, their resumption) may have serious consequences as regards the health and safety of the population. The fact that the employer is under a statutory obligation to exhibit the wording of the section at the place of work brings this home to the employees. This alone would justify its continued existence even if Section 5 of the Act (which deals with danger to life and health and which we discuss below) is also continued.I think that noble Lords in all sections of the Committee will think there is strength in that argument.
My noble and learned friend says that in the case of these dangers Section 5 will suffice—but will it, in every case? Suppose, as a result of a risk of the interruption of supplies, every hospital in London provides itself with alternative means in an emergency of supplying electricity. Might that not constitute a complete defence to Section 5, whereas if Section 4 remained there would be a clear case for a prosecution? I agree, of course, with my noble and learned friend that the cases in which these sections have been used have been very rare: but some of the best provisions of our law are rarely used, because they are generally obeyed. My noble and learned friend 107 may say that there have been breaches of these provisions of Section 4 which have not been followed by prosecution. Nevertheless, I think we are doing a very foolish act in doing away with something that was not harming anybody, which was demonstrably in the public interest and which Lord Donovan's Royal Commission most cogently urged should remain the law of the land.
§ LORD DIAMOND
I do not know whether the noble and learned Lord is going to say anything further. It seems to me that it ought to be possible to get the best of all worlds. The noble and learned Lord, Lord Donovan, made it clear that the reason for retaining Section 5 that the noble and learned Lord advanced seemed to him a powerful one, as, with respect, it seemed to me, but that the advantage of Section 4 was the exhibition within places of work, and the continual reminder, therefore, of the possible effects of withdrawing labour suddenly in those public utilities. Would it not be possible to consider some method of achieving the same result by drawing it to the attention of those concerned, without necessarily going to the full extent of renewing Section 4?
THE LORD CHANCELLOR
I am naturally attracted by Lord Diamond's suggestion. The difficulty lies in the words"those concerned"which he used at the end. Who are those concerned? In the case of named public utilities, if you have a named list of utilities in the section it is easy to say who are"those concerned": it could be nurses, I suppose the police, those concerned with sewerage, fire, the docks or almost anything. Therefore, unless one put up in every industrial undertaking that if the effect was that defined in Section 5 of the Conspiracy and Protection of Property Act 1875 an offence would be committed. I do not see how one could begin to draw the line. I think that is a powerful, practical argument. I appreciate what the noble Lord said and that it is intended to be helpful, and I think it is well worth considering. But my first reaction to it is that once you abandon the named list"those concerned"becomes an indefinable category.
I have great sympathy with what my noble friend Lord Conesford said. What 108 he did not do was to deal with the two main points which have moved the Government in their decision. It may be, on reflection, that they are not very good ones, or it may be that the Committee agree with us, but the two main points are these. You have a deterrent of £25 imposed by an Act of 1875, which is in itself not a very imposing threat to those who break the law. Secondly, you have an arbitrary list of three public utilities. In answer to the noble Lord, Lord Diamond, I have been able to list probably half-a-dozen, and maybe, on reflection, I think that as many as a dozen would turn out to be the case. Who can say that a miners' strike would not cause danger to human life in the middle of winter?
Having got to the position in which the list is arbitrary, one must, I think, face the question whether one is going to keep it as it is—gas, water and electricity—or whether one is going to make it up-to-date and realistic. The difficulties of making it up-to-date and realistic are considerable. And if you do that, what are you going to do to the penalties? Are you going to make the penalty prison; are you going to make it a fine of £1,000, or what? On balance, the Government thought that we should take out Section 4 and keep Section 5. It may be that we were wrong. I accept that this was an exercise of practical judgment and that there are arguments both ways. But my task here is to put the Government's case as impartially as I can, and the reasons for it, and I do not believe that that case has really been overturned.
§ LORD BROWN
May I make a comment on this subject? I recognise the validity of the noble and learned Lord's comments about taking out Section 4 because it does not encompass the whole field, but I am one who believes that the absence generally in the past of acts which have endangered life and limb is due more to the realisation by those involved intensely in strikes of the fact that they will endanger life and limb than to the existence of the penalties. I believe that people who want to go on strike, however emotional they may be, if they know that certain acts of theirs may endanger life and limb will almost inevitably take steps to mitigate the consequences in that respect. It will be 109 remembered that even in questions of limited damage, dockers in the past have so organised their strikes as to deal with perishable goods, whose loss would have been a far less serious matter than some of the results that used to occur under Section 4.
The suggestion that I would make is this—and I do not expect a response to it. Leaving aside the question of penalties, I wonder whether it is not possible to put upon every employer the responsibility and duty to think about the possible consequences of industrial action as they might affect life and limb and inflict serious damage (words could be found), and to draw the attention of those whom he employs, when they might be about to take an act which would so endanger life and limb, of the possibilities of their act. I believe that if this were done and employers were held responsible for thinking out those consequences the results that have hitherto been achieved by Section 4 might thereby be achieved.
§ LORD DIAMOND
I am sure it is worth while spending one more moment on this important topic, especially as the noble and learned Lord said that the Government would be prepared to give the matter further consideration. I should like to echo the first part of what has just been said by my noble friend Lord Brown, that the penalty of £25 is not really the relevant issue at the moment. I do not think the Government need to be concerned about extending the penalty. What we are concerned with is some method of bringing to the attention of good people the fact that they may unwittingly do a lot of harm which they are not intending to do, and therefore the putting up of a notice is very relevant indeed.
The noble and learned Lord said—at least, I thought that this was his main argument—that one of the reasons for departing from Section 4 was that the situation had moved. I thought that that was absolutely right. One of the reasons, therefore, for not replacing it by this provision to-day would be that that list would not be right for all time either. The situation would continue to move, and it is in fact a flexible situation. But I did not think that the Government were saying:"We are ducking this one because it is too difficult to reach a 110 decision". I did not expect them to say that. It is a difficult decision, but Governments are there to take difficult decisions. I should have thought that the Government would want to consider whether they could not devise some method, not necessarily a statutory one, perhaps a code of practice, of getting employers to draw to their employees' attention the risks that would be run by striking without due notice, whatever the due notice was in the appropriate cases. That is well worth considering.
I am not satisfied, and I am sure that the noble and learned Lord is not, that it is a valid argument that because it is difficult to do everything one should do nothing. I hope the noble and learned Lord takes the sense of the House—there have been many speeches all leading broadly to the same conclusion—that the Government have probably reached the right conclusion but that there is something remaining to be done which struck the Commission as being very valuable. and the Government ought to try to find means of doing it, notwithstanding that only Section 5 is going to remain on the Statute Book.
§ LORD CONESFORD
I wonder whether the noble Lords who think that the repeal of Section 4 is right have thought out this result: the impression on the minds of the public of saying that something hitherto criminal shall not be criminal at all. The noble Lord, Lord Diamond, says that the men do not intend to do anything dangerous. We must credit these men with some sense. Is it conceivable that people engaged in the supply of gas can indulge in a lightning strike without realising that their action is dangerous? If they can they are so lacking in sense that that alone is a reason for the prohibition. But of course they know it is dangerous. We have to consider the effect on the minds of men who know they are doing something dangerous, and in breach of contract, of Parliament saying that what has hitherto been criminal, and done nobody any harm by being criminal, shall in future not be criminal at all.
THE LORD CHANCELLOR
I do not want to prolong the discussion except to say that I am in the unusual position of defending the mildness of the Bill against criticism, not only from my noble 111 friend, but also from the Labour Party, that it is too mild. I will not fail to report this bizarre situation to my right honourable friend, who may take a more Draconian view than he has hitherto been prepared to do at least in relation, as the noble Lord, Lord Diamond, suggests, to the code of practice. Alternatively the noble Lord, Lord Diamond, may care to put down a Draconian Amendment in the sense of the Donovan Report at the Report stage. It might be that my right honourable friend would be persuaded to accept such an Amendment if it were put down by the Labour Party—we are always very open to suggestions coming from that quarter.
In the meantime I would say to my noble friend Lord Conesford that it is not every breach of contract in the gas industry which is necessarily dangerous. They can break their contract safely and they can break their contract dangerously. They can very often keep their contract dangerously, as well as safely. I should not assume therefore that every collective act in breach of contract in gas, electricity or water, is necessarily dangerous. It very often is, as we all know, otherwise it would not be in the law at the moment. I will assure both my noble friend and the noble Lord, Lord Diamond, who were so felicitously at one in considering the Government unduly soft in this matter—that their criticisms will be taken into consideration and we shall see what we shall do.
§ THE DEPUTY CHAIRMAN OF COMMUTERS (LORD STRANG)
In view of the discussion which has taken place, I will put the Question once more: That Clause 130 stand part of the Bill.
§ Clause 130 agreed to.
§ Clause 131 [Peaceful Picketing]:
§ 8.56 p.m.
LORD HOY moved Amendment No. 276Y:
Page 96, line 6, leave out ("not being a place where he resides").
§ The noble Lord said: I rise once more to move this Amendment—for the third time this evening. I am pleased to do so at this stage because I was delighted to hear so many references being made to the responsible way in which trade unionists behave. I am getting a little 112 tired of hearing tirades against the trade unionists of this country as if they were the worst in the world. I was delighted to read only a week or two ago the speech made by the Minister, Mr. Carr, in America, pointing out the great reputation and the great record of trade unions in Britain, a record that compared more than favourably with the trade unionists of America and other parts of the world. It is to these people that this law will apply. I preface my remarks on this clause by saying that these are the people that this clause proposes to make changes for.
§ This clause deals with peaceful picketing. The trade union movement of this country has always regarded the right to strike as an inalienable right, and indeed to picket in support of the strike that it was prosecuting. This has been a right for nearly the whole of this century—certainly since 1906. This clause, as drafted, introduces an important change in picketing. Trade unionists have had the right to picket either at the office, the factory, the workshop or home of the person concerned, and they are loth to let go of that. Not only have they had the right to do it, but they have carried it out with great restraint and with little trouble. Let any person compare the behaviour of the British trade unionists in this respect with the scenes that can be witnessed in other countries, and then we will have a real appreciation of the way in which this particular power has been handled by the trade unionists throughout these years.
§ In another place, when the Government were challenged to produce examples to justify the changes proposed in this clause, they simply failed to do so. We could not find a Government supporter who could give any instance of what they were seeking to do. One member on the Government Benches, not unknown to the legal profession, said there was no evidence available. He thought the change ought to be made, but he said he was afraid that he had no evidence to support the change that the Government were introducing. This matter has also been considered by the Donovan Commission. They came down against making any change by two to one (I hope I have the figures right); about eight people on the Commission thought no change was necessary while 113 four thought a change was necessary. The Commission, I have no doubt, took evidence from everyone concerned, and as a consequence of the evidence they decided that no change had to be made.
§ So I would suggest to the Government to-night that before they introduce changes of this kind, or at least expect your Lordships' House to approve them, we are entitled to know on what evidence, what cases, they base the claim for making the changes. Until they tell us that, I am certain, speaking not only for myself but for my noble friends, that we are not prepared to accept the change the Government propose. I beg to move.
§ 9.1 p.m.
§ LORD BROWN
It is a great pity that this Amendment has been moved and I want to stand up and be counted as one of those who are against it. It is based on a misconception. In the first place, British trade unionists on strike have very seldom resorted to picketing the homes of those who have not joined them in their strike action. It is a very rare occurrence, thank God! The confusion around this matter arises from the fact that there is a complete failure in moving this Amendment, which would make it legal for a non-striker to be picketed in his home, to distinguish between two quite different roles of a person. One is the role of an employee or a worker in a factory or other employment; the other is the role of father or mother in a family. If we make it legal for picketing to take place in the home we are subjecting the other members of the worker's family to pressures which have nothing whatever to do with them. It is an invasion of the privacy of the person—
§ LORD DIAMOND
Will my noble friend allow me to intervene? I have listened carefully to what he has said. Now he is no doubt going to tell us the evidence on which he makes that statement.
§ LORD BROWN
I do not need any evidence to support the contention that, if we allow people to picket the home of a worker, that will affect the other members of his family. It does not require evidence; it is a statement of fact. How can you picket a home, which contains a father or mother who is a worker in a 114 factory, without affecting the other members of the family? I think that this is an invasion of privacy of a serious sort. I had hoped that this Amendment was drafted due to a misunderstanding of its true meaning. I had hoped that it would be withdrawn. It is highly objectionable and I hope that it will be withdrawn.
§ LORD POPPLEWELL
I am astonished at the outburst of my noble friend Lord Brown. It is evident that he does not know much about strikes and what has taken place. The evidence, as produced by the Donovan Commission, and I think by all others, shows that it is difficult indeed to find cases where this procedure has taken place. I am not saying that it will not have taken place somewhere at some time, but those of us with knowledge of this kind of practice would have extreme difficulty in finding evidence of its having taken place. It might take place among strikers; it might take place among strikers' wives—
§ LORD BROWN
Will my noble friend allow me to interrupt? In the course of my comments I stated that it very seldom took place: it was part of my argument. The fact that it takes place very seldom has not the least bearing on the fact that it should not be allowed to take place in the future.
§ LORD POPPLEWELL
That brings me back to this argument: Why embrace these words in the Bill? Where is the necessity to do so? It is the Government who are now highlighting this type of action, which in all probability will take place in the future. Let the position remain as it is. The Government have not produced any evidence to show that such a provision as that in the Bill is necesary. So far as I am aware, no evidence has been brought forward by any trade union, or any chaps who have not been on strike, to show that they have suffered this particular indignity. So why in the world highlight this in this manner? I suggest to my noble friend that it is not a question of our highlighting this action; it is a question of the Government, by bringing these words into the Bill, highlighting something which normally decent trade unionists have never yet adopted. The Government are in effect using a sledgehammer to crack a nut. Alternatively, it is a malicious thought by the sponsors of this Bill 115 in regard to militants who may possibly adopt a certain action which decent trade unionists would always deplore.
Therefore, I think it is advisable to have this Amendment and I hope that the Government will have another look at this matter. Those of us with industrial experience would have extreme difficulty in finding where this type of action takes place. There could be cases where the wives of strikers have talked with the wives of"blacklegs". Can we control that type of thing? The provision in the Bill highlights something which will give force to militant men who are extremely difficult to deal with and are a nuisance to everyone concerned, persuading them to think that they can adopt another tactic which will make things more difficult for other trade unionists concerned with industrial disputes. I commend my colleagues for putting down this Amendment and, if it is not accepted, I sincerely hope that we shall force a Division upon it, because it is so important.
§ LORD SLATER
I am giving support to this Amendment, which is only natural as I am a trade union member, as I have said on previous occasions. There is peaceful picketing and picketing can take place in many ways. I was surprised when I listened to my noble friend Lord Brown. He is not only connected with industry but, so far as I have gathered, a good employer of labour. I cannot help but support the comments that were directed to him by my noble friend Lord Popplewell. If Lord Brown understood how picketing operated in industry, he would not have made the comments which he has made.
I should like to put a direct question to the Government Benches. This provision amounts to nothing more and nothing less than the fact that people are going to be placed in certain positions where they will be looked upon simply as carriers of information to the employer.
§ LORD BROWN
I wonder whether the noble Lord would allow me to intervene? He referred to me by name. May I ask him whether he is one who regards picketing in the home as indecent, or does he regard it as proper?
§ LORD SLATER
I am going to answer. The noble and learned Lord the Lord Chancellor ought not to allow his ire to overcome him.
§ LORD SLATER
I imagine that the noble and learned Lord, and my noble friend Lord Brown, do not agree with everything said by their wives in the home, or even with everything said by the other members of their family.
§ LORD SLATER
I am giving an answer. Whether or not the noble and learned Lord likes the answer is another matter. It is a matter of opinion, and my opinion carries as much weight in the industrial field—
THE LORD CHANCELLOR
I am asking the noble Lord not to boast about the value of his opinion but to give an answer to the question, which is capable of an answer Yes"or"No".
§ LORD SLATER
I started by saying that I supported the observations made by my noble friend Lord Popplewell which were directed against the speech made by the noble Lord, Lord Brown.
THE LORD CHANCELLOR
The question which the noble Lord, Lord Brown, posed to the noble Lord and which he promised to answer—and we are all agog—was whether he approved of picketing men's homes or not. The answer is either"Yes"or"No".
§ LORD SLATER
That may be the noble and learned Lord the Lord Chancellor's attitude of mind in regard to his legal standing and the way he seeks to cross-examine witnesses when they are in the witness-box, but he is not cross-examining me.
§ LORD SLATER
The noble and learned Lord the Lord Chancellor is displaying the kind of attitude of mind and behaviour that one is not accustomed to in regard to Parliamentary Government, and he ought to be ashamed of himself for taking up this sort of stand he has and for his hilarity. He seems to he getting away from his speech.
THE LORD CHANCELLOR
I have been a Member of Parliament for 40 years, which is longer than the noble Lord, and when I need lessons on how to behave in Parliament I will take them from a person who has had as much experience as I.
§ LORD SLATER
I am not finished yet. The noble and learned Lord may be a member of Her Majesty's Government, and I have charged Her Majesty's Government on their attitude of mind in regard to this Bill and on the attitude of people in the trade unions; and I have given the answer, so far as the noble Lord, Lord Brown, is concerned, when I said 1 supported the observations made by the noble Lord, Lord Popplewell. Under tins Bill there will be snoopers travelling up and down the country to where there is any possibility of strikes occurring because of men being upset by the form of operation in their industry. This is what is going to happen and when you talk about peaceful picketing you are questioning the intelligence of our people in the trade unions, but not of the intellectuals. Trade unionists are beginning to question the intelligence of these people, who are unable to behave themselves in a peaceful way in their picketing. In many instances peaceful picketing does take place. It can take place at the factory gates and in all types of places.
It seems to me that a great many noble Lords do not understand what really happens when strikes are likely to take place or do take place. The opinion expressed by one individual to another is not accomplished by any form of force. Sometimes when we have been on strike the Government of the day have turned the police on to us; we have been subjected to baton charges by the police at the direction of the Government of the day. It is no good noble Lords trying to tell those of us in the trade union world that we do not understand what is 118 meant by peaceful picketing. We do know what it means. I am not one who believes in trying to get a man to agree to my form of belief in regard to the stand we have taken because an employer is not prepared to accede to the request that we have made, for instance, for increased wages. I approach an individual on a firm basis and express my opinion. If he disagrees with that opinion that is a matter for him; and he can direct himself back to work and carry on with his employment without undue pressure so far as the trade union leadership of this country is concerned.
If it is not peaceful picketing, then it is not at the request and at the direction, nor yet at the impulse, of the trade union leaders. Noble Lords ought to realise this. I am surprised that they should have brought this matter into the Bill. It will create among men and women who are members of trade unions in this country a great deal of disunity and disruption which the Government of the day, who are responsible for bringing forward this Bill, will regret. They will wonder why they were led into the position of introducing such a clause into the Bill.
§ 9.14 p.m.
§ LORD CONESFORD
Almost all the speeches which have been made on the other side of the Committee assume that none of us knows what picketing means in practice. Most of us have seen it in the last year on television. We know what it is. In a great number of matters over the years I have differed from the noble Lord, Lord Brown, but I think the speech that he made this evening does him great credit, both for his courage and for his humanity.
§ SEVERAL NOBLE LORDS: Hear, hear!
§ LORD CONESFORD
It is no good pretending that he does not care about his beliefs. My criticism of the clause is not concerned with protecting men and women in their homes, although if we do not protect men and women in their homes we do not deserve to be called a civilised country.
§ SEVERAL NOBLE LORDS: Hear, Hear!
§ LORD CONESFORD
I object to the clause because in certain respects it does not go far enough. I wonder how many 119 members on the other side of the Committee at this moment 'could mention what is the legitimate—and the only legitimate—object of picketing? It is peacefully to communicate information. But as we know from the evidence of what we have seen in some of the great strikes, people, on the plea of picketing, turn out in great numbers, not to communicate information but physically to prevent people getting to the works. We have all seen it being done. The noble and learned Lord, Lord Donovan, in his Report called attention, quite rightly, to certain cases decided in the courts which showed the limitations which the police can put upon them.
§ LORD DONOVAN
Would not the noble Lord agree that Section 2 of the 1906 Act enlarged the purpose of picketing from not merely peacefully giving information to peacefully persuading people to work or not to work?
§ LORD CONESFORD
Yes, certainly—peaceful persuasion and communication of information, I did not quote it but I gladly accept that correction. And, of course, I gladly accept what the noble and learned Lord said in his Report about the limitations that can be placed on picketing under the law as it already stands, by the police through the control of the numbers of pickets, and so on.
My criticism of the Government in regard to this clause is that it is a great pity that, by omission, they do not mention any of those limitations defining what the police can legitimately do on the basis of the decided cases. They have made the one useful addition of protecting men and women in their own homes, and on that I do not wish to add anything to what the noble Lord, Lord Brown, has said. I think the issues of humanity are quite obvious to all concerned, but I regret that picketing can be so much abused, and is constantly abused when strikes take place, by the trade union pickets' thinking (I believe quite sincerely) that they are entitled to obstruct and to prevent people entering the works and to compel them to enter into conversation whether they wish it or not. I think that the powers that the police already have for controlling these activities, to which the Donovan Commission have called attention by citing the decided cases, should be incor- 120 porated to some extent in this clause, and my criticism of the Government is not for introducing this very necessary protection of the workers' homes but for not going a little further and spelling out what is already the law; namely, what are the legitimate objects of picketing and how the police can limit by numbers, and so forth.
§ LORD BERNSTEIN
I should like to support the Amendment. I am not going to enter into a mock modest controversy with my noble friend Lord Brown as to who has had the greatest experience in industry. I think I have. But I should like to answer the noble Lord, Lord Conesford. In the first place he is losing his sense of proportion. When the noble and learned Lord, Lord Gardiner, was Lord Chancellor, he told us of a former Lord Chancellor who was in favour of hanging for the felling of a tree. The Lord Chancellor of those days said,"If we àllow them to fell one tree they will fell a forest". There are a great number of things which are now out of law books because, by common practice, they are"just not on". We do not mention them any more and nobody bothers about them. That goes for behaviour in the streets and so on. Here we have the Protection of Property Act 1875 to protect ourselves from any odd behaviour. The noble Lord talked about strikes and breaches of contract. The law courts of this country are full of industrialists and others fighting about breaches of contract in all sections of industrial life, including the trade unions.
Let us look at what the Donovan Commission say. I think the Donovan Commission have been much abused in this Committee. There were twelve men on the Commission and they did their best over two or three years. We take a note or bar of their music but refuse to take their total orchestration. If those who are to vote will read page 231, they will see at the endThe majority of members consider that the Commission has had no evidence of abuse of the right to picket sufficient to justify such a restriction". [Paragraph 877.]There it is in writing. These people spent two years on this matter. We are spending about two hours, rather tired, rather bored, and waiting for people to come out of that corridor and vote in a Division.
§ LORD BROWN
The noble Lord mentioned my name when he started his speech and I want to ask him a question. Is he in favour of legalising the picketing of homes, or against it? I have been listening to his speech to determine the answer, and I cannot understand.
§ LORD BERNSTEIN
I started off by saying that I support the Amendment. I do not have to answer any more than that. I support the Amendment.
§ LORD BERNSTEIN
If you want my reason for supporting the Amendment it is because I think you can write certain things into law which are insulting to people who might be involved, like things about hanging and flogging. What are we really talking about? We are talking about picketing. There has always been picketing in this country, some peaceful and some emotional. Look at the emotion in this Committee to-night. What do you expect to happen when there are thousands of people out of work over some dispute, legal or otherwise? I do not understand this clause and I hope the noble and learned Lord will explain it. Are the Government objecting in this clause to consumer picketing? Can somebody stand outside a shop and say, Do not go in and buy there"? Is that legal or not legal? We know it is permissible for people to say,"Do not work here because we are on strike". Am I right or wrong in thinking there is a difference between those two possibilities? We arc really bringing in here the threat of criminal punishment under the Act of 1875. I cannot believe that this would help industrial relations and peace in industry. I object to anybody invading the privacy of another human being, but that is not what we are talking about. We are talking about a Bill full of legal clauses, so confusing to the average layman that discussion will go on in the labour relations offices and it will never be understood on the shop floor.
§ LORD DONALDSON OF KING-BRIDGE
I cannot remain silent in this extremely distressing debate. My friends on this side have got themselves into the position of defending something they do not believe in. I do not think there is a single trade union leader who would support his men in going to the house of 122 somebody who is failing to strike. The truth is that the clause offends them because they say it is something that does not happen and therefore it is extremely offensive to put it in. It is rather as if every man who came into this House was handed a slip saying,"Do not spit on the floor."We do not do it, and it would be very offensive if that were done. It is important that people should realise that that is the basis on which this side of the Committee is arguing. I do not agree with them, but I think it is an absolutely reasonable line to feel insulted from time to time, and it may be that this clause is insulting. I suggest to my noble friends that they are wrong. It is rather as if you said. taking the Ten Commandments,"I don't mind being told not to covet my neighbour's wife, because from time to time I do. I don't mind being told not to steal, because that is a possibility. But being told not to murder is simply offensive."I think my noble friends have got it wrong, but I want the Committee to realise that theirs is an absolutely serious and sensible point of view and that they are standing on their tradition of proper behaviour. There have been breaches of it, as everybody knows and as there are in everything, and they feel that this clause in this Bill is drawing attention to something to which it has no right to draw attention. I have said nothing to improve my own side's position, but I think I have said something to explain our point of view to the other side.
§ 9.27 p.m.
THE LORD CHANCELLOR
I sympathise very much with the noble Lord. Lord Donaldson of Kingsbridge, although even without his explanation I understood that this was the view which a decent Labour man must inevitably hold and the only view by which this Amendment could be excused, although it cannot be supported, and he did not attempt to support it. I also appreciated every word that fell from the noble Lord, Lord Brown, who posed a very reasonable question to the noble Lord, Lord Slater, which he promised to answer but did not, and another question to the noble Lord, Lord Bernstein, which he did not promise to answer but refused. This is not a question of evidence; this is a question of principle—at any rate, it is to us. I think it is a question of principle which 123 the public of this country will understand. The purpose of this Amendment is to retain a specific privilege in favour of besetting or picketing a person's home. I happen to have had my home besetted and picketed, and it is no joke. I did not care; they cannot frighten me. But I have a little daughter of four who was frightened into fits, and I had a wife who was upset. It was not because of a trade dispute, which I happily have not been involved in, but it was as a result of the mere fact of people being present to upset and annoy, and they did upset and annoy. That is the kind of conduct which the Labour Party, by this Amendment, want to legalise.
THE LORD CHANCELLOR
Yes, they do. That is the only effect of this Amendment, and that is its deliberate purpose. The noble Lord, Lord Popplewell, says,"Nothing of the kind". The noble Lord, Lord Popplewell, says he disapproves of this, and he gives us to understand that it does not happen. Then why does he want to support an Amendment which confers the special privilege of doing it?
§ LORD POPPLEWELL
Because of the stupidity of the Government in embracing these words in the Bill. As I stated in my observations, this highlights something that will probably give a lead to certain militants to be very offensive in the way they conduct themselves. This is not a good trade union principle, and we do not want it. The Government are entirely at fault for highlighting it in this Bill.
THE LORD CHANCELLOR
The noble Lord does not want it but he would legalise it, and blames the Government for withdrawing the privilege in favour of it. This is an argument about which the Committee must judge between the noble Lord and myself. In the meantime, let us consider the issues. If it be true that it does not happen, why does the Labour Party object to prohibiting it? Who will be worse off? Do they think it is right in principle? Not a noble Lord opposite has ventured to suggest such a thing. Those who support the Amendment have put forward arguments of one sort or another, but they have not supported the practice. If the practice 124 is abominable, why not say that it is abominable in an Act of Parliament?
THE LORD CHANCELLOR
It does not happen? Who is then worse off for prohibiting it? We hope that murder will one day be something which does not happen. Are we therefore going to prohibit the law in regard to murder? But, as a matter of fact, the ambit of this Amendment is really more modest than noble Lords opposite seek to pretend. My noble friend Lord Conesford reminded us of this fact. The clause to which it is an Amendment simply provides that the provisions of Clause 131…shall have effect where one or more persons (in this section referred to as pickets '), in contemplation or furtherance of an industrial dispute, attend at or near—
- (a) a place where a person works or carries on business, or
- (b) any other place where he happens to be, not being a place where he resides,and do so only for the purpose of peacefully obtaining information from him or peacefully communicating information to him or peacefully persuading him to work or not to work.The only sanction, the only prohibition, the only effective arm of the clause in this limited ambit, withdrawing protection from those who picket the home of a man, his wife and his children, is contained in subsection (2)In the circumstances specified in the preceding subsection, the attendance of the pickets at that place for that purpose—
For that purpose, it is worthwhile considering what it is that noble Lords are complaining about. Section 7 of the Conspiracy, and Protection of Property Act 1875 provides this:
- (a) shall not of itself constitute an offence under Section 7 of the Conspiracy, and Protection of Property Act 1875—and
- (b) shall not of itself constitute a tort."Every person who, with a view to compel any other person to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing. wrongfully and without legal authority uses violence to or intimidates such other person or his wife or children or injures his property or persistently follows such other person about from place to placeor does certain other actsshall on conviction pay a penalty not exceeding £20.This is the only action under the first arm of subsection (2) which is referred to, 125 and the other subsection concerns a tort, meaning thereby that the person who complains of an action in breach of it shall have to prove damage in order to achieve any substantial remedy.
All that the noble Lords seek to do by their Amendment is to attach a privilege to besetting a home, of the same kind that attaches to besetting a place of work or to pursuing a man to the public house where he drinks, or to some place where he happens to be in the absence of his wife and children. What kind of human reason can there be for the Labour Party to put its name to an Amendment like that? The noble Lord, Lord Brown, has adopted a perfectly honourable attitude. The noble Lord, Lord Donaldson of Kingsbridge, has adopted a perfectly intelligible attitude in what he put forward as the only explanation or excuse for those who support the Amendment, which he does not do himself. It is an evil day for the Labour Party that they have put this Amendment down. If they wish to vote upon it, let them do so.
THE LORD CHANCELLOR
The noble Lord is overlooking the fact that a single person cannot be guilty of riotous behaviour.
§ LORD HOY
I know that a single person cannot be charged with it. All I would say in reply is that the conduct that he quoted had nothing to do with picketing or with trade unions, and it is quite unworthy of him to use that example to try to fortify a case which he did not have. My noble friend Lord Brown wrongly said that we were proposing a change in the law. My noble 126 friend did not appreciate—I wish my noble friend would sit down for just one minute, and then I will give way to him. He has got this habit from the Lord Chancellor. Neither of them will keep his seat for half a minute. My noble friend said that by this Amendment we were seeking to amend the law. We are doing absolutely nothing of the kind.
§ LORD BROWN
The noble Lord accuses me of interrupting him frequently, like the noble and learned Lord the Lord Chancellor. All I was trying to do was to save him the embarrassment of building an argument on the basis of a wrong assumption as to what I said. I did not say that we were trying to change the law: I said we were trying to change a Bill by an Amendment.
§ LORD HOY
My noble friend might have made it clear what he really meant to say. What he accused us of was trying to amend the law. All I am pointing out is that we are not asking for any privilege. The Lord Chancellor says that by our Amendment we are claiming a privilege. If there is a privilege it already exists: but it is no privilege at all. Peaceful picketing is exactly what it says it is. Indeed, if people wished to do so, I would not object to people coming to my home to argue with me either about trade unions or about politics. When I hear all this talk about the tremendous effect of people appearing at your door, I think of every election that takes place and of every canvasser who appears at your door to try to persuade you to vote in one particular direction.
This is exactly what is happening at the present time. Indeed, I would hazard a guess that when the Lord Chancellor represented Marylebone he had people out picketing for votes, canvassing for votes, knocking at doors and so on. With all due respect, it is no good the noble Lord sitting on the second Bench objecting, because we have asked what cases there were in which it has in fact been shown that this abuse has taken place, and no noble Lord, not even my noble friend, has produced a single case to show that it has happened. What I was arguing, and will argue with any noble Lord or anyone else, is that the sense of responsibility of the trade unionists in this country is the admiration of the 127 world, and I only wish that trade unionists in other countries behaved as well as they do in this country.
THE LORD CHANCELLOR
Will the noble Lord please address himself to the question which interests some Members on this side of the Committee? Is he arguing that picketing a man's home in the course of an industrial dispute is as lawful and legitimate as canvassing at a political election, or is he agreeing with the noble Lord, Lord Popplewell, that it is something which never happens and ought never to take place?
§ LORD HOY
What I am arguing—and arguing, I thought, quite clearly; I am sorry the Lord Chancellor did not understand—is that a picket has the right to go and picket a man if he feels that this is the best way it can be done. He does not go to quarrel or to fight with the man, but to seek to persuade him that the road he is taking is the wrong one, whether he is regarded as a blackleg or otherwise. All I am saying is that a man has the right to do so. He has the right at the present time. No single Member of this Committee has quoted an example to show that this right has been abused —not a single one. The reason why we are debating this problem tonight is not the responsibility of the Labour Party, but the responsibility of the Tory Government. It is they who propose making the change, not the Labour Party. What we are arguing is that these rights which have belonged to the trade unions and which have never been abused—
§ SEVERAL NOBLE LORDS: Oh
§ LORD HOY
I really have asked for instances, and it is not good enough for the noble Lord to say,"I saw something on television". When we had our debate on television not so long ago in your Lordships' House there was hardly a single noble Lord who did not get up and say that television was so selective, it always picked out the single incident and ignored all the good things that were happening. To 128 use that type of evidence in this case is quite wrong; and far from being disconcerted even by the behaviour of the Lord Chancellor, which left very much to be desired if I might say so to him as one who has known him for a quarter of a century and in another place, I hope my noble friends will press this in the Division Lobby.
§ LORD PLATT
Before we finally cool down, and possibly go into the Division Lobbies, may I say something from the Cross Benches on behalf of the profession which occasionally I try to represent in this peculiar Bill which seems to me to have to do entirely with industry, with strikes, with shop floors, with picketing, and which yet includes the medical profession who will be privileged to be on the special register under Clause 84 which exempts them from certain provisions of the Bill but not from Clause 131? Before I vote, if this matter comes to a Division, I want to know exactly what this has to do with the medical profession. If I cannot convince the Government that they should not have put the profession in this Bill then let me try to ridicule them into taking a different view. Does this mean that the senior physician of St. Bartholomew's cannot picket the senior surgeon outside his house but can do so if he is entering St. Bartholomew's Hospital? I should like an answer to that question before I vote.
§ SEVERAL NOBLE LORDS: Answer. answer!
THE LORD CHANCELLOR
The noble Lord can be reassured. He may not picket the senior physician's house if he feels inclined to do so—contrary to the advice of the noble Lord, Lord Popplewell, and contrary to my own—if he would be committing a tort or an offence under Section 7 of the Conspiracy, and Protection of Property Act 1875. Otherwise he, like anybody else, is at perfect liberty to do so.
§ LORD PLATT
I am obliged to the noble and learned Lord for that reply—which makes the whole thing quite clear to me.
§ 9.42 p.m.
§ On Question, Whether the said Amendment (No. 276Y) shall be agreed to?
§ Clause 131 agreed to.
§ Clause 132 [Illegality on grounds of restraint of trade excluded]:
§ 9.51 p.m.
LORD STOW HILL moved Amendment No. 277A:
Page 96, line 22, after ("Act") insert ("or of any organisation to which subsection (2) of this section").
§ The noble Lord said: This Amendment is a paving Amendment to No.130
§ Their Lordships divided: Contents, 29; Not-Contents, 98.129
|Addison, V.||Gaitskell, Bs.||Popplewell, L.|
|Archibald, L.||Gardiner, L.||Shackleton, L.|
|Bacon, Bs.||Hoy, L.||Slater, L.|
|Bernstein, L.||Janner, L.||Snow, L.|
|Beswick, L.||Kennet, L.||Stonham, L.|
|Blyton, L.||Lindgren, L.||Taylor of Mansfield, L.|
|Brock way, L.||Llewelyn-Davies of Hastoe, Bs.||Wells-Pestell, L.|
|Buckinghamshire, E.||[Teller.]||Wright of Ashton under Lyne,|
|Champion, L.||Morris of Kenwood, L.||L.|
|Davies of Leek, L.||Nunburnholme, L.|
|Diamond, L.||Phillips, Bs. [Teller.]|
|Aberdare, L.||Exeter, M.||O'Neill of the Maine, L.|
|Ailwyn, L.||Falkland, V.||Pender, L.|
|Albemarle, E.||Ferrers, E.||Platt, L.|
|Arran, E.||Ferrier, L.||Rankeillour, L.|
|Auckland, L.||Fortescue, E.||Reay, L.|
|Balfour, E.||Gage, V.||Redmayne, L.|
|Barnby, L.||Gisborough, L.||Reigate, L.|
|Barrington, V.||Gowrie, E. [Teller.]||Rhyl, L.|
|Beauchamp, E.||Gray, L.||Rochdale, V.|
|Belhaven and Stenton, L.||Greenway, L.||Ruthven of Freeland, Ly.|
|Belstead, L.||Gridley, L.||St. Aldwyn, E.|
|Berkeley, Bs.||Hailes, L.||St. Helens, L.|
|Bessborough, E.||Hailsham of Saint Marylebone,||Sandford, L.|
|Boston, L.||L. (L. Chancellor.)||Sandys, L.|
|Brabazon of Tara, L.||Hankey, L.||Seear, Bs.|
|Bradford, E.||Hives, L.||Selsdon, L.|
|Brecon, L.||Inglewood, L.||Sempill, Ly.|
|Brougham and Vaux, L.||Jellicoe, E. (L. Privy Seal)||Sinclair of Cleeve, L.|
|Clwyd, L.||Kemsley, V.||Somers, L.|
|Conesford, L.||Latymer, L.||Strange, L.|
|Cottesloe, L.||Lauderdale, E.||Strange of Knokin, Bs.|
|Craigavon, V.||Lindsey and Abingdon, E.||Strathclycle, L.|
|Craigmyle, L.||Lloyd, L.||Tanlaw, L.|
|Cranbrook, E.||McFadzean, L.||Terrington, L.|
|Crathorne, L.||Macpherson of Drumochter, L.||Teviot, L.|
|Daventry, V.||Margadale, L.||Thorneycroft, L.|
|Davidson, V.||Merthyr, L.||Tweedsmuir, L.|
|Denham, L. [Teller.]||Monk Bretton, L.||Tweedsmuir of Belhelvie, Bs.|
|Digby, L.||Monson, L.||Vivian, L.|
|Drumalbyn, L.||Mowbray and Stourton, L.||Wade, L.|
|Dundee, E.||Napier and Ettrick, L.||Wakefield of Kendal, L.|
|Elliot of Harwood, Bs.||Nugent of Guildford, L.||Ward of Witley, V.|
|Emmet of Amberley, Bs.||Oakshott, L.||Windlesham, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ 277B, and perhaps it would be for the convenience of the Committee if both were discussed together. The object of the Amendments is to make it possible for a particular trade union to register under the present Bill and by registering obtain the protection which Clause 132 would provide in respect of agreements which are entered into by that trade union and by its members. The trade union concerned is the Showmen's Guild, which is known I think to a number of your Lordships, a body which does the most meritorious work but in circumstances which are entirely peculiar to that body.131
§ It has a membership of some 4,000 and altogether the livelihood of some 10,000 people depend on its activities. It is a trade union which consists of proprietors who run fairs in the country and what it does by its rules and by the activities on which it embarks is to introduce some order, some coherence and some common sense in a process by which the fairgrounds at which fairs take place during the year are let out to the individual proprietors who own the equipment necessary for the carrying on of those fairs.
§ At the moment that trade union is registered. It was registered in 1917, some fifty years ago, under the provisions of the Trade Union Act 1871. It would not qualify to register under the provisions of the present Bill, much as it would like to register, because the definition of a trade union in the 1871 Act is different from the definition under the terms of the present Bill. The difference in their case is a crucial one. Under the 1871 Act, a body could register as a trade union if one of the principal objects was to regulate the relations between master and master or between proprietor and proprietor. An association of proprietors which had that as one of its principal objects came within the definition of a trade union. That definition has been changed in a way which makes it impossible for the trade union to register under the Bill. A body can qualify to register under the present Bill only if one of its principal objects consists in regulating the relations between masters or proprietors, on the one side, and workers on the other. A body cannot call itself either a trade union or an association of employers unless one of its main objects is the regulation of relations across the table between workers and employers or proprietors.
§ Because of the special nature of the undertakings of the Showmen's Guild, it does not come within the necessary qualifications because, as I have said, it regulates the relations between those proprietors who carry on country fairs in the matter of the letting out to them of the pitches of the fairgrounds upon which they operate. They have various peculiarities. No proprietor has, as it were, anything like a fixed place from which he operates or from which he carries on his fairs year after year. He 132 occupies each fairground for only a short time—one month, two months or three months—during which he runs his fair.
§ If it were not for the activities of the Showmen's Guild which they have conducted over some fifty years now, there would have been great disorder, and perhaps worse than disorder, in the matter of parcelling out the various available fairgrounds to the various showmen or managers of such fairs who wish to rent grounds for that purpose. Experience showed that before the Guild got under way and introduced some order into the situation, fairgrounds were let to the highest bidders; people cornered the fairgrounds and the weakest went to the wall. There was altogether a great deal of strife and tension in that particular field of operations, which carried with it very undesirable characteristics. It was to bring an end to that kind of situation that the Guild embarked upon the operations which it has carried out with such great advantage to all concerned for so many years and in respect of which it has enjoyed all the advantages and privileges under the regulations of the 1871 Act.
§ One consequence of its not being able to register under the terms of the Bill because it does not qualify so to do is that the various agreements it makes for parcelling out on an equitable basis the various fairgrounds among the several proprietors who wish to rent pitches are liable to be held unlawful as being in unreasonable restraint of trade. The object of the Amendments which I have proposed is to try to enable the Showmen's Guild to qualify for registration under the present Bill and, by so doing, to gain the protection of Clause 132, which would prevent its agreements from being invalidated as being in unreasonable restraint of trade. It may well be said that if they really operate on such a useful and benevolent footing it would not be held that their agreements were in unreasonable restraint of trade. That may or may not be so, but even if it is so it will mean that this union, which disposes of funds but not in unlimited quantity, can be constantly subjected to the risk of litigation in the courts each time either a disgruntled proprietor or someone else wishes to challenge the rules, and must try to establish that the rules are not in unreasonable restraint of trade.133
§ If they are put in that position it will really be extremely difficult for them to operate. I do not say they would not survive, but it would mean that the whole nature of their undertaking would have to change. They would have very greatly to alter the scale on which they bring this very beneficent service to those who are members. They are extremely clever in how they proceed. They rarely exclude people who wish to apply for membership, and it is extremely rare for them to expel a member; they have a disciplinary code and an inspection code. They require certain safety measures to be observed by persons who wish to gain advantage from membership of the Guild. I would put it to your Lordships that they are widely and generally recognised, not only in that particular field of conducting fairs but generally among the public, as a highly meritorious body. I can understand the noble and learned Lord saying:"Well, can we legislate just to cover a particular case?". I put the grounds of my argument rather wider than that. I do not know, but other cases may arise in future, and other cases may be covered now. I put forward these Amendments because this particular guild has made representations, of which I am sure the noble and learned Lord is aware, and it seems to me that it is right and in the public interest that their case should be argued and considered in this Committee.
§ I would answer in advance the argument that may be used by the noble and learned Lord, that one cannot provide for an individual case, by saying that the grounds of the argument are much wider than that. The grounds rest really upon the broadly equitable basis that if you have qualified under previous legislation, and over the decades you have so moulded your undertaking as to fit in with the then existing legislation, and you have throughout that period carried on useful work for the community, it is extremely hard that, because of a change in the legislation arrangements of 1971, you should suddenly find yourself, through no fault of your own, out in the cold and seriously hampered in the conduct of your most desirable undertaking. So, in my submission, I can put the case on that broad ground. It is not right in principle that suddenly some body should be disadvantaged, through no fault of 134 their own, not in order to serve any useful public purpose but simply because the Government have thought it is right to change, in this rather drastic and, as I submit, unnecessarily drastic form the definition of a trade union or an employer's association, whichever limb of the pattern one may be looking at, in such a way as to make it impossible for this body to register.
§ Those are the general considerations. It may be that the noble and learned Lord will feel hesitant about saying that he accepts the proposals that I make, but I submit to him that as a matter of broad justice it would be right that the Government should take seriously this case which is put forward for the consideration of the Committee, and should at least be able to indicate that between now and the Report stage they will carefully consider whether they cannot do something to help this guild and others in like case, and generally to obviate an injustice which, in my submission to the Committee, certainly is inherent in the form which the Bill at present takes. I beg to move.
§ 10.3 p.m.
THE LORD CHANCELLOR
I am sure that the noble Lord, Lord Stow Hill, has done right to draw the attention of the Committee to the representations that have been made to the Government on behalf of the Showmen's Guild, a body for which I certainly do not desire to express any disrespect and for which I doubt whether any other member of the Committee would wish to express any disrespect, although in my case the absence of disrespect is not based on a very close acquaintance with their rules or with the practices which they fear will be interfered with if the Bill passes into law. I am not sure how many members of the Committee understand the extremely sophisticated nature of the point which the noble Lord, Lord Stow Hill, is putting in his Amendment. It is a curious one, which, if I have it right myself, I should like to try to explain to the Committee. I begin by saying that although there may be a number of other bodies in like case—the noble Lord said that he was moving the Amendment in their interests as well as those of the particular organisation—I rather question how many there are, and 135 certainly no others that I know of have come up with any kind of complaint.
§ LORD STOW HILL
If I was understood to say that there were such other bodies, I did not mean to do so. I said that there may be, and I must confess that I do not know whether there are or not.
THE LORD CHANCELLOR
At any rate I accept what the noble Lord says. I do not know that there are not. I certainly question how many there are, for reasons I am about to give. Assuming that there are some, or on the assumption this is the only one, I question whether the Industrial Relations Bill is quite the right legislation to give them what they want, for the reasons which I think could have been inferred from what the noble Lord said, and which I will try to explain. As the title of the Bill implies, this is a Bill about industrial relations. Therefore registration under the Bill is of either workers' associations or federations of workers' associations, or employers' associations or federations of employers' associations. That is because this is about industrial relations and those are the associations which have to do with industrial relations.
The Showmen's Guild is not, so I understand from the noble Lord, Lord Stow Hill, and this information coincides with my own, either an employers' association or a workers' association. It is not a federation of employers' associations and it is not a federation of workers' associations. So far as I understand, the protection which he wants to retain, if it has it, is nothing to do with industrial relations, unfair industrial practices, conditions of work, strikes, lock-outs or anything of that kind at all. It has nothing to do with industrial relations that I can understand; I may be wrong. But the case, as I understand it, is this: whether intentionally or unintentionally—and as it is over a hundred years ago I do not suppose anybody in the Committee will be prepared to say which it was—this unusual type of body was capable of registration and was registered as a trade union under the Act of 1871. It was not an organisation of workers, or an association of employers, and its practices, so far as they require protection, relate solely to the letting of parti- 136 cular pitches on fairgrounds. I cannot say whether this anomaly, if it is an anomaly, was intentional or unintentional.
It is certainly unusual even under the Act of 1871. It would not benefit anybody unless it was also not a trade protection society which was captured by the Restrictive Trade Practices Act. Most trade protection societies are captured by the Restrictive Trade Practices Act because they exist for the protection of trade, and because the Act was designed to provide limits upon the extent to which they could restrain trade. So if there are trade protection associations which are capable of registration, and are registered as trade unions under the Act of 1871, they could only be benefited by that registration if they were not caught by the Restrictive Trade Practices Act.
There is this additional quirk to the extraordinarily sophisticated point that the noble Lord has made: that if by any chance, as is constantly being urged upon us—although whether we shall do it I cannot say—the Restrictive Trade Practices Act were to extend to services as well as the manufacture and sale of goods, which is what it is at the moment confined to, any protection that they received under this anomaly, if it be an anomaly, would prove illusory because they would immediately come under the extended provisions of such a potential alteration of the law. So this is an extremely sophisticated point.
The reason why they claim protection under this Bill, or that they claim that they have protection under the old law and want to retain it under this Bill, is that the Act of 1871 says that if you can register as a trade union, which in the ordinary sense this body is not, you can claim certain immunities based on the fact that if your rules are in restraint of trade they are not ipso facto contrary to to public policy or do not ipso facto constitute a conspiracy. Now, quite clearly, if they are—and I understood the noble Lord to say, and I do not dispute it for a moment because I have absolutely no right to dispute it from any knowledge I possess—if all these rules and all these practices are in the public interest, they are protected under the general law; that is to say, this is a trade protection society of an unusual kind. It is not a trade union in any ordinary sense; it is not an association of employers in any ordinary 137 sense. It is just the same as any other trade protection society which has certain rules in restraint of trade. And I accept for the purposes of argument, although I cannot assert it, that they are not caught by the Restrictive Trade Practices Act as at the moment, because they do not manufacture or sell goods, although they would be caught by it if it were extended to services.
If the practices which the noble Lord is seeking to protect are in tact in the public interest they can be justified before any court of law under the general law. If they are not in the public interest, one wonders what claim they have to justification for protection. One sees, of course, that in the peculiar context of industrial relations trade unions in the ordinary sense ought to claim a privilege; and they have been given it under this Bill—however much we may have argued about its provisions—if they register. Employers' associations claim a like privilege, and they ought to be given it under this Bill if they register. But why a trade protection society which is neither a trade union in the ordinary sense or an employers' association in the ordinary sense, and has nothing to do with industrial relations, should claim registration under a Bill which is only to do with industrial relations, solely for the purpose of securing total immunity for such restrictive practices which the courts might otherwise decide to be contrary to the public interest, and without appeal to any lawful authority, it is not immediately apparent to see.
The reason why the Government have so far resisted these representations is simply that they do not see that the proposed Amendment has any place in this Bill at all, or is of any relevance to any interest which is protected or defined in this Bill; and they do not see why the mere fact that the peculiar provisions —the combination of the provisions—of the law of 1871, as unaffected by the Restrictive Practices Act 1956, which do not apply to this particular association, should give them a right to automatic immunity for practices which they could defend anyway in front of a court if they were really in the public interest. This is the case which the noble Lord, Lord Stow Hill, has not made. I do not want to pretend that I think the Walls of Ilium would fall if we gave way to him; but 138 at the moment he has not persuaded me that he has a case which I could rationally submit to my colleagues. Certainly when it was submitted, very forcibly and very reasonably, by the Showmen's Guild they were not persuaded of it.
At the moment, I am not shutting my mind to it, and I will of course report the results of this debate and the very reasonable speech the noble Lord has made to my colleagues. Although I do not claim any particular expertise in this field (this Amendment happens to be sandwiched between a number of legal Amendments which I was supposed to answer and therefore I have been given it) I will report what has happened. I cannot accept the Amendment to-night and I am not myself persuaded that there is an intellectual case for it.
§ 10.15 p.m.
§ LORD STOW HILL
I am grateful to the noble and learned Lord for what he has said. May I just comment on two of the limbs of his argument which I think, when one analyses it, are the two major points that he makes? The first one—and I think I state the noble and learned Lord's proposition correctly—is this: this is not a trade union in the ordinary sense. Not being a trade union in the ordinary sense, there is no reason in justice why it should have this special protection. If it is entitled to the special protection let it establish that in the courts by showing that its agreements are not in restraint of trade.
May I shortly address myself to those two propositions and ask the nable Lord if he will be so kind as to represent the arguments which I venture to put forward in reply to him to his advisers when he considers the matter. With regard to the first part of what he says, what is a trade union in the ordinary sense? The Showmen's Guild qualified by coming within the definition of a trade union as that definition was formulated 100 years ago in the 1871 Act. If that is so, is that not a trade union in the ordinary sense? If anybody had asked in 1918, a year after this union was registered, whether it was a trade union in the ordinary sense, on what criteria would they have formulated the answer? They would have asked for the definition of a trade union and would have looked at the 1871 Act and asked themselves,"Does this organisation come within the scope of 139 that definition?"The answer would have been"Yes"and in my submission the logical result of this consideration is that this was at all times a trade union in the ordinary sense, a trade union which, as one of its characteristics, shared probably by a number of others, had as its object —which object qualified it—the regulation of relations between masters and masters. That is my answer to the first part of the reply which the noble and learned Lord gave to me.
May I address myself shortly to the second part of his contention, which is that if they function in the public interest there is no reason why they should have the protection which is retained by Clause 132 in respect of restrictive trade agreements because they can justify their claim in the courts. did deal with that. What they are apprehensive about is that they will constantly be harassed in the courts by people who want to challenge them. Organisations, quite apart from trade unions, as to whose arrangements the question arises whether they are restrictive or not, are always under that hazard. Sometimes it is a hazard which they disregard. They are sufficiently powerful or sufficiently well established to be able to fight against that contention. The Showmen's Guild is not. It is a guild which has resources, is well established and highly respected and recognised throughout the particular branch of industry or whatever one calls it, but it is not in a position to fight actions before the courts. They will never necessarily produce the same result. Different aspects of their agreements may be challenged first by one plaintiff and then another, and they may be submitted to a series of harassments in the courts during which various aspects of their undertakings are examined by judges at the instance of individual disgruntled proprietors who perhaps disagree with a decision made in relation to the Guild.
The noble and learned Lord very kindly said that his mind is not closed and that he will give further consideration to the matter in conjunction with his advisers. All that I am asking him to do when he does so is to take into consideration the two arguments which I have ventured to put forward in reply to the arguments he used when he addressed the Committee. I am most grateful to him, and in view of what he 140 said I beg leave to withdraw the Amendment.
THE EARL OF BALFOUR
Before the Amendment is withdrawn, may I say that under the Trade Union Acts a registered trade union may under this Bill get certain relief from income tax, and things like that. If this particular Guild can no longer register will they lose this possible privilege? They may not have enough money to be in the income tax bracket, but if they are not registered under this Bill is there any other way in which they could receive the sort of privileges that they might be getting at the moment?
§ 10.20 p.m.
TIIE LORD CHANCELLOR
May I just reply first to my noble friend? I should not like to give a comprehensive answer about the Income Tax Acts without a certain amount of notice. Obviously if these people have a benevolent fund, a matter we went into when we were dealing with the not dissimilar question before the Recess, they could find ways of making that benevolent fund either a friendly society or a charity so as to claim immunity; but I doubt whether even now the general funds of the organisation would qualify for immunity simply because of registration. I see the noble Lord, Lord Diamond, who is a much bigger expert on this subject than I am, looking at me, but I doubt whether they would qualify for any general exemption. They are basically a trade protection society. I do not want to go back on what the noble Lord, Lord Stow Hill, said, because I certainly will report to my right honourable friend the arguments which the noble Lord presented to me. It is quite right that I should do so because I do not claim any particular expertise about it.
As to the reason why these people were able to register in the first place, I cannot give the original section of the Act of 1871 because available to me in this little recess below the Table is only the Statutes Revised, which is a most peculiar document. The Statutes Revised gives the repealing section of the original definition under section 71, which must be the section under which they are operating now, unless it has been further altered, and the definition in the repealing section (which is now part of the Act of 1871) 141 of"trade union"is, first, any combination, whether temporary or permanent, for regulating the relations between workmen and masters, or between workmen and workmen, or between masters and masters —none of which applies to this body—or (and these are the relevant words)for imposing restrictive practices on the conduct of any trade or business"—and there are the words which have enabled them to register—whether such combination would, or would not, if the principal Act had been passed, have been deemed to be an unlawful combination by reason of some one or more of its purposes being in restraint of trade.In other words, although the noble Lord, Lord Stow Hill. has provided reasons, which he always does with great force, to say that this is a trade union in the ordinary sense of the word (whatever that may mean), the only reason which enables this body to register as such is the fact, apparently, that it contains rules which are in restraint of trade. For that reason, says he, these admirable rules, as they no doubt are, should be immune from inquiry in the public interest, whereas the rules of other bodies who indulge in restrictive trade practices should not. I do not think that that is self-evident, and certainly it is not self-evident that it covers any present immunity from income tax, which is the point raised by my noble friend.
§ Amendment, by leave, withdrawn.
§ LORD DIAMOND
I can deal with this Amendment No. 277E quite shortly. The question is merely whether the word"only"is necessary and whether it would not be of some advantage to remove it. I cannot see that it serves any useful purpose at all. I beg to move.
Page 96, line 22, leave out ("only").—(Lord Diamond.)
THE LORD CHANCELLOR
The effect of this Amendment would seem to be that for whatever reason a trade union's purposes might be held to be unlawful, if the purposes were also in 142 restraint of trade there would be no liability on any member for conspiracy, nor the possibility that any agreement or trust would be void or voidable. The proposed Amendment would therefore tend to widen the protection given at present by Clause 132. In answer to the direct question put by the noble Lord, Lord Diamond, the reason why we do not at the moment feel inclined to accept the Amendment is that it would widen the clause. It is not a question of what use it would be. We do not at the moment see the purpose of widening the clause. The Amendment might also mean that members of organisations whose purposes are in restraint of trade, and agreements made by such organisations, could enjoy a greater protection than persons whose organisations are not in restraint of trade. That would be an anomaly, and it would be one of the results we apprehend would follow from the omission of the word"only", which is the only purpose of the Amendment. After all, the purpose of Clause 132 is to re-enact the protection available under the 1871 Act (which of course is going to be repealed) against criminal conspiracy. The Amendment proposes to widen the protection, and not simply to re-enact it, and would create a situation where organisations whose purposes are in restraint of trade might enjoy a wider protection than similar organisations whose purposes are not in restraint of trade. At the moment these arguments seem to me overwhelming, and unless I were persuaded that some great advantage would result from the omission of the word I should think its retention important.
§ LORD DIAMOND
I am grateful for the noble and learned Lord's answer. I will study what he has said, in case it is necessary to come back to it. In the circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 132 agreed to.143
§ 10.27 p.m.
§ LORD STOW HILL moved Amendment No. 277G:
§ After Clause 132, insert the following new clause:
Protection of journalists from proceedings under this Act in respect of certain oral or Written reports in exercise of their profession.
§ The noble Lord said: I beg to move this new clause, of which I think the Committee has some knowledge, because at an earlier stage of our consideration of the Bill we touched upon the question of the position of the Press under the terms of this Bill. The reason for the new clause is that there is apprehension in various Press quarters lest, by a legislative accident as it were, we may by the terms of this Bill have put journalists at risk of having proceedings brought 144 against them for compensation for unfair industrial practices. The first question that arises on the consideration of this new clause is: is it the case, or is it not, that this Bill is so wide as to involve some risk of that sort, some risk which cannot be wholly disregarded, which is not a merely negligible risk?
§ I approach the question of this new clause, and I would submit that it is right to approach it, in the following spirit. It is of the utmost importance in our democracy that we should have a free Press. One always accepts that the word"free"is subject to some qualifications; the law of defamation of course must be observed, the law of seditious libel must be observed; but unless the Press transgresses those well-known boundaries it is and should be absolutely free to comment, to report, and to express opinions on all matters which concern the public weal. Our democracy is founded upon that, and if we ever encroached upon that basic freedom it would be a very great misfortune. I am absolutely certain I carry the whole Committee with me so far.
§ My second proposition is that, that being the case, we surely ought, if I may use a colloquialism, to bend over backwards to avoid creating any such risk. If we err, we ought to err in the direction of eliminating any chance of the Press being subjected to a danger which we would not wish them to have to undergo. We should be in far greater danger if the Press became in any sense inhibited, or became hesitant about what they could write and what they could not write. At the moment I should have thought that we, as a country, and as a great democracy in the world, are entitled to say that we have a completely free, thoroughly vigorous, highly critical Press, which does us all a lot of good, although we do not always enjoy it.
§ The first question is, have the Government framed the provisions in this Bill in such a way as to involve any such risk? In order to answer that question may I first remind the Committee of what the existing law is. Under the existing law, Section 3 of the Trade Disputes Act 1906, a journalist, or indeed anybody else, whether a trade union or a private individual, whoever he is, is absolutely free, so long as there is in 145 contemplation a trade dispute, to use language which might produce the result that a contract of employment would be broken. That is an untrammelled right, and there is no limitation to the scope of Section 3 of the Trade Disputes Act 1906, which is now nearly 70 years old. That protection is still retained in the Bill in so far as actions in tort are concerned. You will not be sued in tort, even if you induce other people to break their contracts, if you do it in contemplation or furtherance of a trade dispute. That position is preserved by Clause 128 of this Bill.
§ But the position is radically altered, in so far as the question of inducing people to break contracts is concerned, by certain provisions in the Bill which set up the new jurisdiction relating to unfair industrial practices. In particular in this context it is relevant to look at Clause 92. It has always been a tort, ever since the famous case of Lumley v. Gye decided in 1853, that if"A"induced"B"to break the contract that he had with"C", and by so doing caused"C"damage,"C"could sue"A". But you were perfectly safe in doing that very same thing if you did it in contemplation of a trade dispute, or in furtherance of a trade dispute, when Section 3 of the Trade Disputes Act 1906 was passed. That is the existing law. That is changed, as I say, by Clause 92.
§ Clause 92 of this Bill provides, if I may just summarise it, that if anybody other than a trade union registered under this Bill induces anybody to break a contract, including a contract of employment, they find themselves liable to be proceeded against for compensation for carrying on an unfair industrial practice. even though they do it in furtherance or contemplation of a trade dispute, unless they are a registered union. What is the position of a journalist? A journalist who writes in the Press is not a registered union, nor is he acting on behalf of a registered union. He is purely a private individual expressing his views in the columns of the Press. For the reasons I have already given, he is certainly at no risk of being sued for tort under Clause 128.
§ But is he not at risk, as he is not a registered trade union, of finding himself proceeded against with a claim for com- 146 pensation for an unfair industrial practice under Clause 92? To render himself liable to the risk of such a proceeding he must, first, not be a registered trade union, which he is not; and, secondly, even although there is an unfair industrial practice, he must not induce or threaten to induce another person to break a contract to which that other person is a party. Can it be said in those circumstances that a journalist ever induces a person to break a contract of employment by commenting on a strike situation, and that not being a registered trade union he has the defence of saying,"Oh!, but I did it in furtherance or contemplation of a trade dispute"?
§ Both the noble and learned Lord the Lord Chancellor, and the noble and learned Lord, Lord Donovan, speaking with the authority that goes with the great positions which they occupy, have expressed the view that the risk is negligible; and the noble and learned Lord the Lord Chancellor made an important speech when we last considered this which I have carefully re-read. The question which I would pose to the Committee. and to both of those noble and learned Lords in particular, is: is it not the case that they may have gone a bit too far in saying that there is no risk, or, at any rate, that there is no risk which ought to be taken into account? I agree with them straight away that it could really only happen that a journalist might be at risk, but I gave an example to which I should like to refer back.
§ I gave a purely imaginary example of a journalist in a provincial town, where there is a large plant in which several thousand workers are employed. The paper by which he is employed is read in the households of, say, nine out of ten of those workers, so that 4,000 out of 5,000 workers may read the paper for which he writes. A militant union leader makes a very militant speech outside the factory gates. The journalist happens, perfectly honestly and honourably, to sympathise very strongly with the workers and to feel that they have been very badly treated by the employers. He does so, in the assumed circumstances, in the knowledge that there is already a tense situation in that plant and that the workers are very much of a mind to prefer a claim for better conditions and 147 to support that claim by strike action. In that knowledge, having the strongest possible sympathy with them, feeling that they have been very badly treated by the employers, the journalist, let it be assumed, reports in toto a strongly miitant speech by a trade union leader urging them to strike.
§ Let us also assume that the journalist then comments and states,"I think that what this leader said was amply justified. I should have every possible sympathy for these people if they came out on strike for the reasons that he gave."The journalist might go much further and state"I could have given much stronger reasons, and I will reinforce what he said by further reasons which I hereby advance in his support."The union leader may have had 100 workers listening to him, but the journalist, when he reports on and comments on that speech, may know that what he writes will be read by 4,000 of those workers, and not 100.
§ The question in those circumstances is: does he do that in contemplation or furtherance of an industrial dispute? If the answer to that is: yes, he knows that a strike is not unlikely and he would not be at all distressed to see one because he thinks that justice requires it. does he, within the meaning of Clause 92, induce the workers in that plant to break their contracts of employment? In that assumed situation ought the question to be answered by a court, Yes or No? I respectfully submit to the noble and learned Lord that he went a little too far when he said that there is no risk of its being so held. I submit that in that sort of situation there is a risk. After all, what is the position? He must say to himself,"There will be a lot of waverers among those workers. They may well be persuaded by what I write; indeed, I think they ought to be. I hope they are."That is very well the sort of way in which his mind may work about it.
§ When they read at the breakfast table what he has said, a number of them, let us assume, are persuaded and decide that, although they have been wavering up to that point, they will go out in support of the strike and break their contracts of employment. In those 148 circumstances, has he not induced them? I know that the noble and learned Lord the Lord Chancellor will recognise that it is a universal principle of our law that you must be taken to intend the natural consequences of your own act. You cannot do something which will almost certainly have a particular consequence and then say that you did not mean it to happen. If the journalist uses persuasive language which he thinks is likely to convince waverers, if no more, he cannot be heard to say,"I did not intend them to be convinced"; and if that is the situation, surely it can be said against him that he has induced them.
The Donovan Commission Report, in paragraph 892, in a slightly different context, points out the uncertainty as to when you induce, and quotes language used in a judgment as follows:
` advice which is intended to have persuasive effect is not distinguishable from inducement"".
Surely the journalist is advising, and surely he couches his advice in terms which are likely to have persuasive effect, and he must be taken to intend that they should have that persuasive effect, and to intend, if they are in fact persuaded. that that is what should happen. In those circumstances, I submit that there is a serious risk of it being said against him that he induced.
§ If I am right so far, and have established the case for some change, the changes which I would propose in my very bad drafting, for which I apologise —as the noble and learned Lord said, it is a very perilous art, and I dare say I have got it wrong—are these. I have tried to formulate in the terms of the draft a reasonable protection for the journalist. I have not tried to protect some trouble-maker who goes about and spreads a broadsheet among the workers and then says,"I am a journalist and I should be protected". I have in this Amendment sought to limit it very carefully. Your Lordships have it before you, and you will see that in the first place protection is afforded only to a genuine journalist—to somebody who is engaged in journalism and who publishes the matter in question in the exercise of his profession as a journalist. That excludes the trouble-maker, the casual disseminator of a news sheet.149
§ Secondly, I seek to qualify the publication in respect to which protection is to be afforded. It must be publication which, to borrow a well-recognised concept from the law of libel, constitutes a fair comment on a matter of public interest. In so far as it is a report of happenings of fact it must be reasonably accurate. In so far as it is his comment, his own feeling as to what the workers should do, it must come within the general ambit of what can be described as fair comment. Thirdly, I seek to include in the protection the proprietors of the paper and, for example, the B.B.C. if the publication takes the form of a radio or television broadcast. So the protection is in my submission carefully hedged around.
§ I should like to round off my argument, therefore, by saying, first, that we should be very careful not by accident to inhibit the Press; second, I submit that I have made out the case that there is a risk sufficiently extensive not to be disregarded, that it is something that matters; and, third, I have proposed in the terms of this Amendment a protection for the journalist which is reasonably limited in scope and which applies only to the bona fide journalist and to that which he publishes in the course of his profession, and which comes within the broad concept of something which is a fair comment on a matter of public interest. I beg to move.
§ 10.45 p.m.
§ BARONESS BIRK
I should like to support the Amendment moved by my noble friend. I agree that the risk of action under Clause 92 is probably very slight but I share the feelings of a great many journalists and reputable industrial correspondents that they would be at risk in exercising their ordinary journalistic functions. Let us take as an example the Pilkington strike which took place in the spring of last year. It was an unofficial strike and lasted seven weeks. In addition, there was a fierce internal battle between the union and the rank-and-file committee. Had this Bill been in force as an Act at that time, the strikers themselves would probably have been liable to penalties under it; and as this company was part of a company network it could be argued that journalists by reporting and commenting—and the stress 150 would be on the commenting—on the strike were inducing the workers at some of the factories which formed part of the combine to break their contracts. Of course it would depend on the way the words were used, but it seems that this would be possible. An industrial correspondent told me that if this Bill were enacted and in force now he would feel it necessary to write rather differently from the way in which he wrote about the dispute then.
One of the important factors to recognise is that this is not a case merely of the industrialists bringing the journalists to the Industrial Court; the Press is often attacked from all sides. The unions do not always approve of what the Press or other media has to say. During the Pilkington strike my noble friend Lord Cooper, who led the Municipal and General Workers, went on record with the comment that the organs of publicity do not contribute to better relations in industry and that the Press had damaged the unions and made things worse for them. Really it seems to be a case of"having a bash"at the Press from time to time. This is not just a question of attacking either unions or employers.
At an earlier stage, the Lord Chancellor explained to the Committee the elements, the ingredients of"inducement"under the Bill; and my noble friend Lord Stow Hill has detailed them. With respect, I do not think the matter is quite as simple as it appeared when the noble and learned Lord the Lord Chancellor spelled it out. I think it may be simple for him and for others who understand it; but I can imagine all sorts of different constructions being put on it by lay people, by editors and even by other lawyers. It would be helpful if some of the uncertainties were removed by getting a very firm and agreed definition of"inducement"in this sense.
How would things work out if Clause 92 were left unamended? Let us take for example the Daily Mirror with a readership of around 14 million. The Daily Mirror is being sold outside a factory where an unofficial strike is taking place or is about to take place. If an article appeared in that issue of the Daily Mirror saying that the conditions there were so bad that it would be small wonder if the workers came out on strike; and if a breach of contract took place 151 and the workers did come out on strike, it seems to me that a decision would have to be taken whether there was an intention and a causal relationship. How does one decide? A court would have to decide whether t was the words used in the article in the Daily Mirror which caused the workers to come out on strike, or whether it was a coincidence that at that time the workers had decided to strike. In such cases who would bring the journalist or the newspaper to court? Would it be the industrialist, or could the Director of Public Prosecutions prosecute in such a case?
If the answer is,"Yes, they may bring the newspapers to court, but, of course, they probably could not show a sufficiently proved intention or a causal relationship", I would ask,"Ought we not to try to find a situation where, so far as possible, in such a case the journalist or the newspaper should not be brought to court?"I know, and to a great extent I go along with it, though I am a journalist myself, that it is difficult to ask for special privileges for any group. But where a journalist or broadcaster is working at his profession I feel he is in a different position from a person who is speaking to a group of friends or someone who is, perhaps, writing a letter. I do not think that it would be giving journalists a special privilege, because, as was pointed out by my noble friend Lord Stow Hill, all the other Acts which restrain the Press would still be in operation.
Another point, that worries me is that one does not impute any lack of faith, honesty or integrity to a Government when one says that very often Acts of Parliament do not, in either the short or the long run, always work out in the way they were intended to. There is an example of this in the Official Secrets Acts. In 1937 a journalist was charged under Section 6 of the 1920 Act with failing to give on demand information relating to a suspected offence under Section 2 of the 1911 Act, and he was fined £5. What he had refused to disclose was information obtained from a police officer who had divulged to him the contents of a police circular. Following this there was considerable agitation, and 152 ultimately the Home Secretary agreed to an amendment to Section 6 which was introduced in the House of Lords. Its effect was to limit the provisions of the section to espionage. Very likely that was the original intention when the legislation was passed and yet it was used for other reasons.
In more recent times I took part in the debate in your Lordships' House on the Bill which became the Race Relations Act. During the Committee stage we debated the wording of the first clause in the form in which it came to your Lordships' House from another place. There was a great deal of discussion and I was among those who moved Amendments to the clause because there was doubt about its meaning. Lawyers on both sides of the House, and other noble Lords, expressed varying opinions. Finally it was agreed that there was a doubt and the whole thing was spelt out more clearly.
While the Gaming Act of 1960 was passing through the House of Commons a Minister from the Home Office said that under the provisions of this legislation there could not possibly be casinos of the Continental type in this country. Yet what happened? We had such casinos, and seven or eight years later further legislation was introduced to deal with this situation and to reverse it. It is to prevent something like that from happening that those concerned with this new clause feel so strongly that the position should be made absolutely clear in some way so that journalists should not feel inhibited by an unnecessary degree of caution. I think that the noble and learned Lord believes that editors are more robust than lawyers over this and would be inclined to publish and be damned. I do not think that this is always true. It is not my experience. There are a few people who will take the noble and learned Lord's view and others will take a more cautious view. I think that this would have an unfortunate and inhibiting effect on freedom of speech, of the Press and of broadcasting. I feel that this is not a Party issue. We are all of one mind about this. I hope that what will emerge from this debate is something by which we will be able to put the question beyond any reasonable doubt.
§ LORD BROCKWAY
I hope that Her Majesty's Government will seriously consider the acceptance of this Amendment. I am encouraged in this view by the speech which the noble and learned Lord the Lord Chancellor delivered when we were discussing Clause 92. He placed the emphasis of his argument on the fact that Clause 92 includes the phrase,"to induce or to threaten to induce", and therefore the clause would apply only to those who deliberately sought to contravene the contract between a trade union and an employers' association.
The speech of the noble and learned Lord made me turn to the Oxford Dictionary and look up the word"induce". I give it to the noble and learned Lord at once that the first definition endorses the view which he put to the House. It was that the word"induce"meant"to prevail"or"to persuade". But it gave a second definition, which was that the word"induce"meant"to bring about"or"give rise to". I am suggesting, therefore, that the word"induce"is not so absolutely final as was suggested by the noble and learned Lord. The second definition which is given in the Oxford Dictionary applies to the consequences of what is urged rather than to the intention. I think it very doubtful whether legislation should be left in this subjective way, where magistrates and judges have to depend upon their interpretation of a motive.
My noble friend Lady Birk referred to the Race Relations Act. I admit that I have some responsibility for that. In that Act the word is not"induce"but"intention", and the result of that interpretation of the word"intention", which again must be subjective, has led to great difficulty in the courts which have been dealing with this problem. I wish to say at once that I have had second thoughts as to whether I should have included that clause, because I believe so deeply in freedom of speech that I feel that in the cases which have been before the courts the interpretation of"intention"(which would also apply to"induce") has been unfortunate.
Clause 92 exempts trade unions and employers' associations from the effect of this prohibition. I should like to look at this matter in a practical way as a working journalist. I am probably the 154 oldest member of the National Union of Journalists. I joined in the year 1910. I began as a junion in 1906; and I became a reporter, a sub-editor and then an editor. I know the practices of journalists in all their spheres, and perhaps I might try to illustrate how Clause 92 endangers the position of a working journalist. A reporter may be asked to write a piece upon an unofficial strike—a strike which is in contravention of a contract between a trade union and an employers' association—and he goes to the workshop concerned. He reports what the shop steward is saying in favour of the strike. If he is a good journalist, he not only reports what the shop steward is saying but also the attitude of the men —which of course may be in favour of the strike. If he is a good journalist he goes further and inquires into the men's grievances which have led to the dispute. He takes his story back to his newspaper and the editor comments upon it, saying that he thinks the grievances in the workshop are such that there may be some justification for the men's action, and certainly some justification for an inquiry into it. A journalist who discharges his professional duties in such a way may easily, under Clause 92, be charged with"inducing"a strike which is taking place in contravention of this Bill.
This Amendment also refers to television and broadcasting staffs. We have seen the manner in which they have represented these disputes. They have taken the"mike"to the shop steward who is speaking and urging the men in the factory to take unofficial action in contravention of an agreement. We have seen on television and we have heard on the radio how then the representative has gone to the strikers themselves and obtained their views. I submit to the noble and learned Lord—and from this speech I expect some sympathy—that there is great danger in those circumstances that the representatives of television or of the radio could be regarded as inducing the men to continue on strike. One might go a little further and say that there are features on television, such as"Any Questions"and so on, in which a question is put to the panel, and someone on the panel may be sympathetic with the strikers and express that view. Is he inducing the men to continue their illegal strike?
155 I am speaking from experience as a working journalist. I just say this to the noble and learned Lord in conclusion. He indicated in the discussion on Clause 92 that he was prepared to consider this matter. I hope very much that as a result of the speeches which have been delivered he will give that consideration. I like to be frank with your Lordships, and I may say that I disagree a little with my noble friend Lady Birk. I would not seek a special privilege for journalists or broadcasters. I should like this provision to apply to anyone who might make a comment upon a strike which is held to be illegal.
Unlike some of my noble friends—and perhaps the noble and learned Lord will forgive me for saying this—I believe that he is absolutely sincere in his desire for freedom in these respects. He will remember how more than twenty years ago we were associated in a great struggle for personal liberty. I am ready to believe that that is his deep conviction now. If it is, I am asking that he will not just reject this proposed Amendment but that, because of his belief in the freedom of the Press, he will seek to find ways and means of including it in the final form of this Bill. I hope that after the impressive speeches which have been delivered in this debate, when he comes to conclude that debate he will be able to. give us such an assurance.
§ LORD RITCHIE-CALDER
Speaking, like my noble friend Lord Brockway, as a working journalist, a man of some experience of walking the tight rope in this kind of situation, I hope that the noble and learned Lord will accept this new clause. I assure your Lordships that this is not something that has been concocted on these Benches as a means of interfering with the Bill. This is of deep concern among all the journalists, and indeed among all publicists, if you like to call them that, with whom I am concerned. I know I speak with not quite the long experience of my noble friend Lord Brockway, but I was a member of the National Union of Journalists in 1924, and in the whole of my experience as a working journalist I know exactly what is involved in the implications of Clause 92. It is not sufficient to assume what we believe to be a genuine intention and the spirit or motivations of the matter. 156 It must be spelt out. I have been long enough in the law courts to know that if you have any sense you do not leave any ambiguity in the definition of what you are trying to do. I say that, in the presence of Law Lords, and others, with all deference.
I will illustrate this in a very straightforward way. I could give many illustrations. The illustration I will give is strictly within the definition of Clause 92 and relevant to Clause 92. In 1936 my noble friend Lord Taylor of Mansfield was out in the wilderness as one of the leaders of the Nottingham miners in the fight against Spencer unionism, which has strict relevance to some of the definitions of this Bill. The approved union of the coalfield was the Spencer union and the Nottingham unions were fighting them. I went there as a journalist and reported that straightforwardly. I saw what was happening in what was ambiguously called a lock-out or a strike, depending on who was defining it.
I saw men being tried by the coal owners, who were operating against the miners. There was a straightforward situation in which the magistrates were the people themselves involved. I called that the Tolpuddle Martyrs of 1936". Under Clause 92, what would have happened to me? This is something that has to be accepted as a fair comment, a justifiable comment, the objective treatment by a journalist plus the inevitable speculative approach which must reflect itself in any editorialising on the subject. Therefore I appeal to the noble and learned Lord who no doubt means what he says when he thinks that this is not a risky definition of"induce". I know what I can do to induce people. I know that this word will become, by definition."to subvert", and in the subjective handling of Clause 92 you will justify every fear which every journalist wants to see removed. If the noble and learned Lord means what he said, and I do not question his intentions, let him please make it explicit by accepting this clause.
§ 11.14 p.m.
§ LORD GARDINER
I, too, hope very much that the Government will take this Amendment very seriously. My only doubt about the Amendment is that it does not go far enough. I respectfully agree with my noble friend Lord Brockway that it is undesirable that the Press 157 should have privileges which we do not have ourselves. I dare say that the noble and learned Lord the Lord Chancellor has before now had to explain to a jury in a libel action when the defence of fair comment was raised that they must not think that the defence of fair comment is some special privilege of the Press. It is not. It is the right which every citizen has to express his honest opinion on matters of public interest. Therefore anybody who attacks or seeks to diminish the Press's right to express their opinions on matters of public interest is attacking the rights of all of us. Consequently I have considerable sympathy with the observation made by my noble friend Lord Brockway that he does not think it right that the protection sought to be given by this Amendment should be given to the Press alone. The protection is, of course, extremely limited: merely to report accurately speeches and so forth which have been made, and to express a fair comment.
I thought, if I may respectfully say so, that in some respects my noble friend Lord Stow Hill did not perhaps put his case quite so high as he might have done, because he began by saying outside the trade dispute it is actionable at present to induce"A"to break his contract with"B"if"B"thereby suffers damage. But I think he had overlooked that that is not a complete definition in two respects: first of all, it is not actionable to induce a breach of contract; it is actionable only knowingly to induce a breach of contract. In cases such as Thomson v. Deakin, in which the Court of Appeal were at pains, looking at all the existing authorities, to express in precise language an actual definition of the tort, they emphasised that it was not enough"to induce"; it must be"knowingly to induce". As I have had occasion to point out before, it is one of the striking features of this Bill that throughout the Bill the protection of the word"knowingly"is taken away and we simply have the word"induce". Secondly, of course, so far as our present law is concerned, there is always open to a defendant in such a case a defence of justification, which again is taken away by this Bill.
I find Clause 92 a somewhat puzzling clause. It almost looks as if it were aimed at the Press. It is a puzzling clause because it opens by saying: 158It shall be an unfair industrial practice for any person, in contemplation or furtherance of an industrial dispute, to induce or threaten to induce another person to break a contract to which that other person is a party, unless the person so inducing or threatening to induce the breach of contractis—
So in this Bill, dealing with trade unions and employers, here is a clause in which the one thing not dealt with is what the employers or the trade unions are doing, or what people acting on behalf of trade unions are doing, but what some other person, some third party, is doing. The most obvious party one would have thought at first sight was the Press.
- (a) a trade union or an employers' association, or
- (b) does so within the scope of his authority on behalf of a trade union…".
In these circumstances, some protection is necessary. If one has the word"induce"without the word"knowingly", then the matter depends simply on what is the result, whether intended or not. of the publication. We all know that journalists in particular often have to write articles in a hurry, no doubt doing their best. For that matter. I suppose non-journalists on a programme such as"Any Questions", not knowing what the questions are going to be, do not have much opportunity of thinking beforehand exactly what they are going to say; and some protection of this kind is very badly needed. This one may or may not be the right one. For the reasons which I have ventured to give I do not think that the clause as it stands goes far enough, and I hope the Government will very seriously consider what has been said on this Amendment.
§ 11.19 p.m.
§ LORD ARCHIBALD
May I say a word from an entirely different point of view from that which has been expressed so far? I am neither a professional nor a working journalist, and although I am deeply concerned about the freedom of the Press I am concerned about it mainly from the point of view of the freedom of the reader. I entirely support the view that journalists and editors should be free to express their opinions, but it is most important that the reader—the layman, like myself—should have in the Press a complete, unrestricted report of what is happening in the world, and if there is an industrial dispute like the one 159 which has been referred to, the Pilkington dispute, I feel that I, as a reader of the Press, am entitled to have a completely untrammelled, fair and adequate report of that.
To my mind, therefore, the danger of the provisions in the Bill are not simply that they will restrict the activities of the journalist, the editor, the commentator, but that they restrict my freedom, and the freedom of every layman in the country, to read in the Press a complete and honest account of what is happening in an industrial dispute. I completely disagree with the idea that freedom of the Press is confined to journalists, editors and commentators. I think the basic thing, freedom of the Press, is the freedom of the reader to have a complete, unvarnished, untrammelled account of what is happening in the country. For that reason, which is quite different from the reasons from the reasons by my noble friends from the journalist profession, I think there is a strong case to be made for the Amendment which they have put down.
§ LORD DAVIES OF LEEK
When we were debating Clause 92 I hinted at this in a semi-jocular way when I said that if we were being bounced into the Common Market I could see miners, say, from Normandy or Brittany coming to South Wales and working and there might be a strike on there. A French miner could write a letter to his mother and she could put an article into the French Press. I went further. Knowing these conditions when there is industrial strife like this, I know that the traditional core of British democracy has been the village inn, the village pub, not just for drinking but for the social congress of people and for discussion. Here sometimes—and do not believe it cannot happen in this country if we get repressive legal iron frameworks around trade union conditions—could we or could we no: have the kind of person known in America or on the Continent as an agent provocateur, who could report that my brother, or some noble Lord's brother was talking loosely in a public house and saying that this was a good strike? Noble Lords should not laugh at that. When the 1945 Labour Government came into power I protested vehemently against the possibility of a person being typed as a Communist 160 because Joe Stalin—or, as he was affectionately known then,"Uncle Joe"—was on our side and many a person in country districts and in towns said, he was not a member of the Labour Party, he was a Communist, though he had no idea who Karl Marx was. Because a man happened to say that, and it was said in the munition works that he had been heard to say he was a Communist, he lost his job. We had this type of legislation.
Therefore I am calling on the noble Lord the Lord Chancellor. We know that he has been a defender of freedom right from his Oxford days, when there was a fight in Oswald Moseley's time. I appeal to him that if he thinks the verbiage is loose, and does not think the Amendments fit in, to try to find, from his own learned knowledge, an answer to this problem which has been put from points of view not only of the journalist but also of the individual who wants to express himself, I hope with dignity but strongly, when there are strikes in various parts of the country.
§ 11.25 p.m.
THE LORD CHANCELLOR
I must apologise to the noble Lord, Lord Ritchie-Calder, for having missed, I think, about two minutes of his speech. Apart from that I have, I think, listened to all the speeches in support of this Amendment. I must also apologise if at this hour I am a little less lucid than I like to be. I hope the Committee will recognise that I have been in this Chamber answering every contentious Amendment since the Committee began, had two Consolidation Bills and a Starred Question. In such a situation, one is not apt to be absolutely on top of one's form.
I think we are agreed upon a number of preliminary matters. We passed Clause 92 after some consideration of this particular question. I dealt with it then, hoping to establish certain general propositions. I wish to examine not merely the text of this Amendment, as a piece of drafting, but also the enterprise behind it, as a piece of legislative intention, in the light of what I have tried to establish in the debate on Clause 92. In the first place I think we were all agreed that genuine apprehensions had been expressed, and I certainly was eager —and I am grateful to noble Lords 161 opposite who have accepted that I did so in good faith—to allay what apprehensions there might be. The one thing I am not prepared to do is to allay a subjective feeling of anxiety by a piece of legislation which will weaken the actual protection. I will come back to that point, if I may, at a later stage of what I propose to say on this particular Amendment.
The second thing I thought I had established was that the strength of the freedom of the Press lay in the fact proposed by the noble and learned Lord, Lord Gardiner: that Press freedom ultimately rests upon the freedom of everybody, not simply for the reason that the noble Lord, Lord Archibald, has just given, although that is a good reason, but because every attempt to establish a privilege which is limited to the Press has in practice proved ineffective. The freedom of the Press to report events is the freedom of the man in the pub to talk about them. It is not different in character, and it does not depend upon a man's acting as a professional journalist, as I have during perhaps more of my life than a professional lawyer ought to have done in his best interests: it depends upon his using the liberty which English law gives to English men and women in any circumstances whatever. And one of the things that I wish to impress upon my journalist friends is that their strength lies in asserting the freedom of the citizen rather than the freedom of the journalist, and using the freedom of the citizen as one of the freedoms of the journalist. I believe that this is the only way in which to approach this particular problem.
I pointed out at a different stage of the argument on Clause 92 what is the present state of the law. It is at present a tort, actionable in damages, to induce a breach of contract. The only relevant exception is that which is provided by Section 3 of the Trade Disputes Act, but that is limited to a very particular class of contract, the contract of employment. Clause 92 extends the protection to all breaches of contract, but as the law stands before the Bill becomes law it is a tort, and actionable, to induce a breach of contract, if it is a contract of employment outside the range of a trade dispute. If it is a contract of employment and in furtherance of a trade 162 dispute it is protected, but inducements to all other breaches of contract are unlawful, in the sense of being tortious.
The limitation provided by Section 3 of the Trade Disputes Act was introduced for the first time in 1906, so that for virtually the whole of the 19th century, during which time the courts were very much less favourable to trade unions (and, if I may say so, journalists were much less responsbile: one only has to read Mr. Disraeli's earlier works to know that is so) than they are now, there was no limitation at all on the tort, so far as one knows. And the point which I sought to establish was that not once was 1 able to find a single case where a journalist was successfully attacked for inducement to breach of contract, either before 1906 or after it. That might have been just good luck, but I tried to establish that it was not good luck; I tried to establish that it was because of the meaning which not merely the dictionary but the courts also assigned to the word"induce"and I pointed out that there were five separate elements which had to exist.
First of all, there must be contractual relations between the bodies, and the person attacked for inducing a breach of contract must know of the existence, or at least the probability of the existence, of those contractual relations. Secondly, there must be the intention to induce a breach of contract. The noble Lord, Lord Gardiner, says that the protection of the word"knowingly"has been withdrawn. I do not agree; it is there in the word"induce". If we had been discussing an Amendment designed simply to insert the word"knowingly", I certainly would have considered it; but we are not. My opinion, for what it is worth, is that the protection is there: the person attacked for inducing must intend to persuade people to break their contracts. Thirdly, there must be the actual breach of the contract by one of the parties to it. Fourthly, there must have been a causal connection, an actual causation by the action or words of the party attacked for inducement of the actual breach which supervenes. And, lastly, there must be damage. Those five elements must exist before inducement becomes actionable at present, or could become an unfair industrial practice within the provisions of Clause 92. That is the reason, I think, why no successful action has ever been 163 brought; it is far too difficult to bring such an action against a journalist. It could not be done, and it certainly, in my judgment, could not be done in any of the cases postulated by the Amendment or the cases postulated in various speeches during the course of this debate.
But the case does not rest there, because the Committee will not have failed to notice that in every one of those five elements, as the law stands at the moment, the burden of proof is on the plaintiff or complainant. It is for the plaintiff to prove his case, not for the journalist to establish his defence. This seems to me to be crucial to the whole argument. That is the law as it is. That is the law as it will be under the Bill, and that is the protection of the journalist and newspaperman. That seems to me to justify plainly every word which I said by way of reassurance under Clause 92. Had I been asked to consider again, as for a moment the noble Baroness Lady Birk suggested I might, whether it would be worth while including in the Clause a definition of"inducement", corresponding to what I have said or to the more concise textbook definitions which say the same thing, I certainly would have referred it back to my colleagues without doubt to see whether it could reasonably be done; and even now I am contemplating doing that. But this is not what is proposed by this Amendment. The Amendment proposes the opposite of almost everything I have been saying, and to my mind. so far from giving added protection, any Amendment on these lines is bound to take away somebody's assurance.
In the first place, as several noble Lords have pointed out, not merely is there the question of drafting, but it is inherently part of this Amendment that it is confined to professional journalists. I find this inherently objectionable. But if you go on to look at the terms of the Amendment, you find that the Amendment hangs on it; it is not something that can be cut out of the Amendment or extended very easily—and I will come later to my reasons for saying that. It is inherent in the Amendment that this is a specialised protection to be given to journalists.
The second point is that you will notice, when you come to look at the terms of the Amendment, that whereas the assurance I have given depends in every one 164 of its five protections upon the circumstances that the burden of proof is on the plaintiff, in order to attract the advantages of the Amendment every single fact has to be proved by the defendant. In other words, while under the law as it is, and as it will be if the Bill is unamended, it is for the man who levels the accusation to prove the guilt of the accused, in every one of the subsections of the Amendment it is for the accused to establish his innocence. So the new clause can give him nothing, if already the plaintiff has to prove more than the defendant is asked to prove under the defence. The only effect of an Amendment of this character would be to cast doubt on the burden of proof, and undermine the real protection which already exists.
Look, for instance, at the terms of what is now proposed. Having noticed that the person has to be a professional journalist, whole or part time, you discover in the latter part of subsection (1) that the whole of the protection depends upon the person's doing that which is in question"solely in the exercise of his…profession and not otherwise". I emphasise the word"solely". He has to prove his innocence; that he was acting"solely in the exercise of his…profession and not otherwise". If the law is left unamended, as I have begged the Committee to believe, the plaintiff, or the complainant, has to prove that the man is not acting in good faith as a journalist, but is in fact acting in order to induce a breach of contract. But under the Amendment it is for the journalist to establish—unnecessarily, if I am right —that it is he who is only acting in good faith, and only in the exercise of his profession. The Amendment is again weaker than the clause unamended.
The proposed new clause goes on, in subsection (2), to establish a number of additional things which a journalist has to achieve in order to achieve the specialised and privileged position of being able to exercise this defence. I will not go into them all, but let us go into one or two. Subsection (2),applies to any such matter as is referred to in the preceding subsection which in so far as it consists of an allegation or allegations of fact constitutes a fair and substantially accurate account or report of the whole or some part of some happening or happenings (including a speech…and so on. If I am right, the plaintiff has to prove, as the burden of proof is 165 on him to establish guilt, that it is not just an accurate report but that the intention is something oblique in order to undermine a contract. If the Amendment were passed, the burden of proof would be put on the defendant to establish that it was a report. In other words, he has to prove his innocence. Indeed, he has to prove in addition, as you see if you read on, because I had omitted an important phrase, that it is, in addition to being a fair and accurate report, a report on a matter of public interest. May I say that if we are talking about obscurity and about the difficulty judges find in interpreting words inserted by Parliament, I should have thought that public interest"was as difficult a horse to ride as, notoriously, is"public policy"; and if we pass this Amendment the burden of proof is on the defendant to establish it.
The subsection goes on, referring to the report:…in so far as it consists of comment on such happening or happening or such part thereof as the case may be, is a fair comment thereon….That is to say, in so far as it is a matter of opinion the defendant has to prove that it is a fair comment. If I am right, as I believe myself to be and as all the textbooks say that I am, and as the whole history of this tort leads me to believe that I am, the burden is on the plaintiff to prove guilt and not on the defendant to prove innocence. But we are now being asked, in the interests or the proposed defendants, to put on to them the burden of proof that a report complained of is:fair comment on some subject of public interest, or is a fair comment both on such happening or happenings or such part thereof and on such subject.The only other subsection is one which adds to the rather diminutive class which is entitled to achieve the privilege of journalists. I am all in favour of the proprietors of newspapers having the protection, but I want the protection extended to everybody and I want the burden of proof to be on the plaintiff, on the accuser, rather than on the defendant. I cannot for the life of me understand why, in the interests of supposed clarity or in the interests of supposed reassurance, I should be asked to 166 accept an Amendment which limits the protection to a limited class of journalists and proprietors, and by which the news-vendor, the printer, the bookseller, the author, the man in the street, the speaker on the street corner has his protection taken away, for the sake of making the position of journalists weaker and not stronger. I have tried to take this matter seriously as I have been asked to do, and have applied my mind to it as well as I can. And it seems to me that, although the motives behind this Amendment are praiseworthy, the effect, if it were accepted, would be deplorable.
§ 11.42 p.m.
§ LORD STOW HILL
I must confess that I was disappointed by the speech to which we have just listened. I respectfully submit to the Committee that the noble and learned Lord the Lord Chancellor has completely misunderstood the position. He has based a whole lot of his argument on the proposition that the effect of the Amendment is to transfer the burden of proof, which at present is upon the plaintiff, and to put it upon the defendant. That is really a complete misunderstanding of the position. If this Amendment is accepted, the very first thing that has to happen is that it must be shown affirmatively that there was an inducement by the journalist. That is the first limb of the procedure. I should have thought it was as obvious as it could conceivably be that the onus of proving. in the first place, that the journalist did something which comes within the definition of"inducement"clearly rests upon the person who is the plaintiff in the action and who makes the complaint against the journalist. I was surprised to hear the noble and learned Lord say what he did. I am sure he cannot really mean to controvert that proposition. At the very outset the action does not get on its feet unless somebody can point to the journalist as the defendant, and then prove affirmatively against him by calling evidence that the journalist induced.
Secondly, the plaintiff has to show that what the journalist induced was a breach of contract, and he can show that only by affirmatively discharging the burden of proof which is upon him, and upon nobody else; that there were persons who read what he wrote and were influenced and persuaded by it. That is the second 167 thing that the plaintiff—not the defendant—has to produce. I find it astonishing that the noble and learned Lord should have intimated that in his view the position was in an opposite sense. In the third place, the plaintiff has to show that the contract was broken as a result. As the Bill stands, the onus is on the plaintiff to do that, and so will it be if this Amendment is accepted. The onus of all that part of the case will still be on the plaintiff affirmatively to establish by evidence against the journalist that that part of his case is proved.
Then the noble and learned Lord said"Yes but you actually weaken the position of the journalist."I submit that that is a most specious argument. His position is not in the least hit weakened. What the Amendment does is to provide as follows. Assume that the plaintiff has succeeded in discharging the burden upon him of proving all those affirmative propositions which I have listed. Assume that, and assume that the journalist finds himself in court with all that established against him by the plaintiff. He is then given a defence. He is enabled to say,"All right; let it be assumed that all that is established against me. Nevertheless, I am a professional journalist, and I have a special defence". If you ask, What is the ground for that?", the ground is that a journalist, because of his profession, is put in a special position of danger; and that, I should have thought, was perfectly reasonable and perfectly in consonance with the public interest.
My noble and learned friend Lord Gardiner and my noble friend Lord Brockway said they objected to the Amendment on the basis that it did not go far enough; that it should include other people, perhaps include everybody. I entirely see the force of that argument, and have every possible sympathy with it. I cudgelled my brains to try to formulate some legal proposition which could give that protection to everybody, but I found it impossible. And that is the answer I would give to both my noble and learned friend and my noble friend. If I could have found such a legislative device, I certainly would have put it upon the Marshalled List; but it was because I could not find that, and because I accepted the view which I put before the Committee, that the journalist, by reason 168 of his profession, is in a specially dangerous position, that it seemed to me that it was arguable, in accordance with the public interest, that the journalist. the exercise of whose profession freely is so important for our welfare, was entitled to some special means of protection. Therefore what the Amendment seeks to do—it may be imperfectly, but at any rate it goes some way towards it—is to provide that, in the case of a journalist, if everything is proved against him affirmatively by the plaintiff who makes the complaint, even then he will have a special protection which other people will not have because of the risk he has to undergo.
If one accepts that as a broad proposition, one must accept as equally obvious the proposition which follows from it: that the onus of establishing that defence, of showing that what was published was published by the journalist in the exercise of his profession, that he is a bona fide journalist and that it comes within the scope of fair comment, must fall, as a matter of fairness, upon him. That is what the Amendment does; and having listened to the speech of the noble and learned Lord I feel completely unconvinced that the Amendment is anything like as defective as I, as its author, had assumed it probably would be. Having listened to the noble and learned Lord, it seems to me that there is much more to be said for this Amendment than I had supposed. It is quite obvious that at the end of this debate we are at arms' length. I can only say again that I am very disappointed at the speech to which we have listened; and I hope that the Committee will express their views in the Division Lobby on whether this Amendment should or should not be accepted.
THE LORD CHANCELLOR
I am very reluctant to bore the Committee with a second speech, but the noble Lord really has misunderstood the nature of the dilemma which he is in and the dilemma I was trying to put to him. Of course, if you accept beyond question that everything I said about inducement is true, it is true that on the wording of the noble Lord's Amendment the plaintiff must prove all that. But if that is all true, every word of the Amendment is totally unnecessary; because if it is true that you have to prove those five elements, then what is fair comment, what 169 is a completely accurate report and what is done solely in the exercise of his profession is not an inducement. But the Amendment is designed to undermine confidence in the accuracy of my diagnosis; and the fact is that if the Amendment were passed it might effectively do so, because if the Amendment is on the Statute Book a cunning plaintiff will say,"Ah! Because this Amendment is on the Statute Book, the old view about inducement is no longer true. They would not have put down otiose words in an Act of Parliament. They would not have said that a defendant has got to prove fair comment before he can establish his defence when, under the old definition of ' inducement ', fair comment was not an offence unless the plaintiff had excluded it. It must be that Parliament intended to alter the meaning of inducement '."It is for that reason the Amendment is positively mischievous.
§ LORD STOW HILL
I can only say that I am still more surprised and disappointed by the supplement than by the original contribution: that Parliament should enact that the word"inducement"has a meaning other than that it has if this Amendment is accepted, is unsustainable. I cannot conceive how the noble and learned Lord can find it in his heart to say that it is. It is obviously wrong. It is hardly arguable. Inducement is still inducement. First, it must be shown that there was an inducement, in the sense in which it is used in Clause 92. If it is shown there is an inducement then a special defence, the establishment of which is on the defendant, is made available to journalists. That is the simple position. It is obvious that we shall never come to any approach towards agreement if this discussion is prolonged. I hope that it may be brought to a close and that we can test the matter in the Division Lobbies.
§ LORD ARCHIBALD
Before we go into the Division Lobbies may I ask the noble and learned Lord the Lord Chancellor who on Clause 92 said that there were four conditions—
§ LORD ARCHIBALD
On Clause 92 the noble and learned Lord said that there were four conditions. This evening he says,"Five". I asked him on Clause 92 170 to tell us how these four conditions—now five—could be brought to cover"threaten to induce". He did not give me any satisfactory explanation then. Now that there are five conditions for inducement, can he tell me how"threaten to induce"can come within the four or five conditions that he has laid down?
THE LORD CHANCELLOR
Let us not argue about the number, but number them one by one. First, there must be a contract, a breach of which must be induced; second, there must be knowledge of the contractual conditions by the person who is accused of inducing, or at least knowledge of such facts as ought reasonably to lead him to suppose a contractual relationship exists; third, there must be a breach of the contract by the party who was a party to the contract; fourth, there must be a causal relationship between the breach which exists and the words or actions alleged to be the subject of the inducement; fifth, there must be damage. Those are the five conditions. That is what I said on both occasions. If I counted wrongly on either, I can only apologise to the noble Lord. They are the conditions.
The noble Lord then asked me how about"threaten to induce". The brief answer on this Amendment is that no-one has suggested, and I do not believe, that the case of a journalist threatening to induce a breach of a contract is affected either under the clause or the Amendment. I told the noble Lord before (and I do so again for the sake of completeness) that threatening to do anything is not doing it; but saying you are going to with the intention of affecting some other party's action. Theatening to induce means in the ordinary sense that you threaten that that is what you are going to do. Both the Amendment and the clause, so far as the journalist is concerned, are concerned with the actual inducement and not with the threat. All the particular examples which have been given have done so. I believe that this is the only context in which either the Amendment or the clause can be held to impinge on the journalistic profession.
§ BARONESS BIRK
The noble and learned Lord did not answer one point, raised by my noble and learned friend Lord Gardiner, on the importance of the word"knowingly". He referred to it 171 before and said that he would look at it again. I think this is important.
THE LORD CHANCELLOR
I referred to that in a paragraph, as the noble Baroness will see when she reads Hansard. My view is that the word"knowingly is already implicit in the third or second of the conditions to which I referred; namely the intention which is necessary to create the breach of contract.
§ 11.55 p.m.
§ LORD GARDINER
We are all agreed that"knowingly"is an essential feature of the present tort. What we strongly disagree about is whether one can quite deliberately omit the word"knowingly"and then say"Oh, well, the word induce ' ought to be read as if it said knowingly."I have always contended, as the noble and learned Lord knows, that this Bill quite deliberately omits the word"knowingly", which is an essential part of the definition of the tort, as well as the word induce."
THE LORD CHANCELLOR
If the noble and learned Lord had proposed an Amendment either to Clause 92 or to this Amendment, which inserted the word"knowingly", as I have already told him, I would have considered it. Although it would have been my opinion that it was unnecessary, I should have referred it to other people to see whether they shared that view. So, far prom being deliberately omitted, my understanding, rightly or wrongly, of the tort is that what is always asserted is that the word"inducement"carries with it the word intention"and therefore the word"knowingly". But if the noble and learned Lord thinks that I am wrong about that, all he has to do is to put down an Amendment to that or to Clause 92 on Report.
§ LORD CONESFORD
So far as I understand it, I am wholly with the main argument of my noble and learned friend. But I am a little troubled on the question whether the word induce"does bring with it the adverbs that the noble and learned Lord supposes. I am inclined to think that it does. I took the trouble to look up Lumley v. Gye in its original report in Ellis and Blackburn. and I found that that there were some adverbs in the first judgment of Mr. Justice Crompton. What he then said was:wrongfully and maliciously ', or, which is the same thing, with notice ' interrupts the relation subsisting between master and servant.The noble and learned Lord, Lord Gardiner, is suggesting that some adverb is required; and he is to some extent, I should have thought, supported by passages in the leading case itself, Lumley v. Gye. I also think that my noble and learned friend the Lord Chancellor is probably right in saying that the word"induce"does imply all that. But I wonder whether the matter could be put beyond doubt.
THE LORD CHANCELLOR
I will certainly consider that point, which is quite a different one from the Amendment under discussion, and I would seriously suggest—it was not simply a gibe across the Floor—that the noble and learned Lord, Lord Gardiner, keeps me to my word by putting down an Amendment, in which case I will give him a considered answer.
§ 11.58 p.m.
§ On Question, Whether the said Amendment (No. 277G) shall be agreed to?
§ Their Lordships divided: Contents, 26; Not-Contents, 65.173
|Archibald, L.||Diamond, L.||Nunburnholme, L|
|Barrington, V.||Donaldson of Kingsbridge, L.||Platt, L.|
|Bernstein, L.||Gaitskell, Bs.||Reay, L.|
|Beswick, L.||Gardiner, L.||Ritchie-Calder, L.|
|Birk, Bs.||Garnsworthy, L. [Teller.]||Segal, L.|
|Brockway, L.||Hoy, L.||Stow Hill, L.|
|Brown, L.||Kennet, L.||Tanlaw, L.|
|Champion, L.||Llewelyn-Davies of Hastoe, Bs.||Wells-Pestell, L.|
|Davies of Leek, L.||Milner of Leeds. L. [Teller.]|
|Aberdare, L.||Gage, V.||O'Neill of the Maine, L.|
|Balfour, E.||Gisborough, L.||Pender, L.|
|Beauchamp, E.||Glendevon, L.||Rankeillour, L.|
|Belstead, L.||Gowrie, E.||Redmayne, L.|
|Bessborough, E.||Green way, L.||Reigate, L.|
|Brabazon of Tara, L.||Gridley, L.||Rhyl, L.|
|Bradford, E.||Hailes, L.||Rochdale, V.|
|Brecon, L.||Hailsham of Saint Marylebone||Ruthven of Freeland, Ly.|
|Conesford, L.||L. (L. Chancellor.)||St. Aldwyn, E.|
|Cottesloe, L.||Hives, L.||Sandford, L.|
|Craigmyle, L.||Inqlewood, L.||Sandys, L.|
|Cranbrook, E.||Jellicoe, E. (L. Privy Seal.)||Selkirk, E.|
|Crathorne, L.||Kemsley, V.||Sempill, Ly.|
|Davidson, V.||Latymer, L.||Sinclair of Cleeve, L.|
|Denham, L. [Teller.]||Lloyd, L.||Somers, L.|
|Digby, L.||Lyell, L.||Strange, L.|
|Drumalbyn, L.||Macpherson of Drumochter, L.||Tweedsmuir, L.|
|Dundee, E.||Margadale, L.||Tweedsmuir of Belhelvie, Bs|
|Ecclcs, V.||Merthyr, L.||Vivian, L.|
|Elliot of Harwood, Bs.||Monk Bretton, L.||Wakefield of Kendal, L.|
|Ferrers, E. [Teller]||Mowbray and Stourton, L.||Ward of Witley, V.|
|Ferrier, L.||Napier and Ettrick, L.||Windlesham, L.|
Resolved in the negative, and Amendment disagreed to accordingly.
§ Clause 133 agreed to.
§ House resumed.