§ 3.13 p.m.
§ THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN)
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—(Lord Drumalbyn)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 134 [Application to Industrial Court with a view to discontinuing or deferring industrial action]:
§ On Question, Whether Clause 134 shall stand part of the Bill'?187
§ LORD CHAMPION
In our consideration of whether this clause shall stand part, we must once again I think range a little wide of the clause itself and impinge on subsequent clauses. We had to do this at an earlier stage in the Bill in relation to some clauses for which I was responsible and I am fairly sure that this resulted in a shortening of proceedings and of the time taken on the subsequent clauses to which a clause particularly related. We start our discussion of this Part of the Bill with the consideration that it is desirable, so far as possible, to prevent any industrial action of any sort that is… likely to be gravely injurious to the national economy, to imperil national security or to create a serious risk of public disorder, or to endanger the lives of a substantial number of persons, or expose a substantial number of persons to serious risk of disease or personal injury.These are the words of subsection (2) of this clause.
If we agree to that proposition (and I imagine we all do) any area of disagreement that lies between us must clearly relate to whether these clauses will prevent the sort of industrial action envisaged in Clause 134, and whether the course of action to be pursued under this and subsequent clauses is likely to be effective in preventing such industrial action with the least possible delay and damage to our security, our economy or our health. But that is not all. We have also to consider whether such action would be fair to the parties in the dispute. Would it be fair to the workers? Would it in some circumstances be fair to the employers? Those matters, too, have to be considered in relation to this clause besides the national position and the national economy.
The clause places on the Secretary of State a heavy burden, that of deciding whether the conditions mentioned in paragraphs (a) and (c) of subsection (1) exist and, if they do, whether they are as represented in paragraphs (a) and (b) of subsection (2). That is the sort of position taken by Government up to now only when considering the possibility of advising the Sovereign under the Emergency Powers Acts of 1920 and 1964 to issue a proclamation declaring that a state of emergency exists. These are powers that have been used on very rare occasions, but they have always been held in reserve for emergency conditions.
188 The words in those two Emergency Powers Acts are very similar to those being imported into the Bill in this clause. The difference between those Acts and this Bill is that under those Acts action can be taken only by Royal Proclamation and the action applies mainly to the use of troops in agricultural or other work of national importance. Under this clause the Secretary of State, if he decides that the conditions I have mentioned exist, may apply to the Industrial Court for an order. If the Court is satisfied on the evidence, it shall direct by order that no person shall call, organise, procure or finance a strike or threaten to do so for a period of up to 60 days from the date of the order.
That is going far beyond what was contained in the Emergency Powers Acts, which place no bar at ail on striking or on peacefully persuading others to participate in any strike. Striking has been held to be lawful by Acts of Parliament, most of which were prompted by decisions of the courts. In so many cases these decisions have the effect of restricting the right to strike, for the courts, in their interpretation of various Acts of Parliament, have almost invariably gone far beyond what Parliament intended when passing its trade union and trade disputes and like Acts.
If some noble Lord cannot understand our objection to more legalism, to a greater use of the courts, even of an Industrial Court such as is proposed in this Bill, they clearly have not realised that in the past judges have mostly been very reactionary and have sprung from a class normally hostile to what trade unions stand for. They have almost invariably, in their interpretation of trade union legislation, been far more reactionary than Parliament itself. These clauses not only go far beyond what is contained in the Emergency Powers Acts but they also go quite a long way beyond the Taft Hartley provisions in America. Of course, the provisions now included in this Bill have been largely imported from America. As I understand it, in the United States when a strike threatens to cause a national emergency and before the strike may proceed, the Government have the power to invoke a procedure involving an independent inquiry and a vote by the employees on the employer's last offer.
The proposals in this Bill go beyond that. The only action before an order of 189 the Industrial Court is made is the assessment of the situation by the Secretary of State and the consideration of the evidence put before the Industrial Court. No one would consider that the examination of evidence considered by the Court on the limited reference to it, which really is that it must consider whether the conditions referred to in subsection (2) of this clause exist at all, is in any way an independent inquiry into the merits of the dispute. It is nothing of the sort. So, despite the fact that these proposals are to a large extent an importation from the United States—and, I would add, not intrinsically any the worse for that—the Government have not even imported the element of an independent inquiry before drastic action is taken by the State against the workers.
If any noble Lord reminds me that these clauses may be used against employers as well as workers, I must reply that this Bill, with the exception of certain "sop" clauses, is anti-trade union legislation. I question whether the use of the compulsory ballot will improve industrial relations and brine a greater degree of peace and a lessening of days lost through industrial strikes or industrial action of any sort. I hope to say something on Clause 137 in due course.
The next point to which I should like to refer is that these clauses bring the Secretary of State into the industrial relations arena much earlier than has hitherto been the case. Up to now he has intervened in an industrial dispute only at the point at which he has considered that intervention would bring the parties together and would enable his excellent conciliation officers to assist in providing terms for a settlement. Under this clause he will, particularly if he is a Tory, be under very heavy pressure from his Party to set in motion these clauses in almost any dispute or threatened dispute which might be classed as "gravely injurious". This very loose terminology will cover a very wide range of industrial disputes, for almost any dispute to-day which results in a strike or in irregular industrial action short of a strike could be held to be injurious to the national economy.
I am bound to say that the State has best served the country when it has limited its intervention in industrial dis- 190 putes to encouraging a willingness on both sides to negotiate. That explains why there is such great respect paid to the conciliation officers of the Department of Employment and Productivity and why their interventions are almost always welcomed by both sides to an industrial dispute. This clause, and the reference to the Industrial Court, are designed to lead without delay to the 60 days' cooling off period. The Ministry of Labour submitted written evidence to the Donovan Commission and they had this to say about the cooling off period:It has been found that the attitudes of the two sides are at least as likely to harden as the reverse during the cooling off period and every vote that has been held on the employer's final offer has in practice gone against acceptance.They were talking about the United States' experience. If the noble Lord cares to look at the written evidence submitted by the Ministry of Labour to the Donovan Commission, he will find that something very similar was said by them about the experience in this country of anything comparable to a cooling off period and a ballot of the workers in connection with it.
We are against this clause and the immediately following clause, because the procedure may well bring the Government of the day into very nearly every industrial dispute at the wrong stage of the dispute. It will undermine the value of the Department's conciliation officers and their efforts to bring the parties together. It will almost invariably cause employers to drag out negotiations in the knowledge that the crunch will come towards the end of the cooling off period and no final offer will be made until then. Both sides in a particularly stubborn issue might use the cooling off period to augment their resources in an attempt to secure the defeat of the other side; and the result may well be to increase the bitterness that had already been engendered in an industrial dispute. It may well cause a comparatively small dispute but one that might be considered "injurious", to be blown up into something far exceeding its original limits.
The terms of the clause are open to a variety of interpretations of a difficult and, in many cases, of possibly a Party political nature which in their exercise could set trade unions unnecessarily 191 against the State. The clause is objectionable, because complete and absolute discretion is given to the Secretary of State on the matters he may bring to the Court. The Court will have the power and will be expected to enforce any order it makes by sentences of imprisonment; and we may well have the spectacle of mass disobedience to an order of the Court, leading to the stupidity of another Betteshanger situation and bringing the law into disrepute. We all know what happened in that dispute in the coalfield and how stupid the whole thing was. The dispute had to he settled by the Minister of the day actually negotiating with the men who were in gaol because of what was done during that dispute.
I am positive that future industrial relations in this country would be best served by the well-tried and tested voluntary negotiation procedures which have resulted in fewer days being lost through disputes of a long and serious nature than is the case in the country from which these procedures have been imported. I suggest to the Committee that this clause could, with advantage, be left out of the Bill and that national emergencies might be dealt with under the procedures of the Emergency Powers Acts of 1920 and 1964, because it seems to me that the words "Royal Proclamation" are bound to have a much greater effect in an emergency situation than an order of an Industrial Court. As I hope I have indicated, I am very much against the procedures set out in Clause 134 and the subsequent clauses. I do not believe that they are right for this country. I believe that they will lead to more and greater difficulties than this country has up to now experienced in the industrial field.
§ 3.30 p.m.
§ LORD DRUMALBYN
It might be convenient if I were to reply to the noble Lord at this stage, because I feel certain that the debate will continue afterwards and it might be better if I were to express the Government's views, which might act, to some extent, as a corrective to the views expressed by the noble Lord. The noble Lord started in the way one would expect him to start; namely, from the point of view of the national interest and our desire so far as possible to prevent disputes. That I am sure is a view that we should all share. He then asked whether these clauses would prevent this 192 sort of industrial action, and whether they are likely to be effective. The noble Lord referred to the Emergency Powers Acts. I would remind your Lordships of the purposes of the Emergency Powers Acts. They are there to secure the provision of the essentials of life for the population—the supply of food, water, fuel, light and transport.
The one thing that the noble Lord did not mention is subsection (1)(c) of this clause: that is, that when the Secretary of State is considering whether to use these powers he is to have regard to all the circumstances of the industrial dispute, and where it appears to him that it will be conducive to a settlement of it by negotiation, conciliation or arbitration if industrial action were discontinued or deferred, then he may make an application to the Court. So the purpose of these procedures is twofold. Undoubtedly it is for the protection of the public, but it is also for the settlement of the dispute. I want to put that in the forefront of what I have to say, and I hope that the subsequent discussion will be conducted with that in mind. The Committee will have to make up its own mind on the question that the noble Lord has asked.
§ LORD DAVIES OF LEEK
I apologise for interrupting the noble Lord, but I am not quite clear. He used the words "with that in mind". But the noble Lord said a number of things.
§ LORD DRUMALBYN
The last thing I said—and "that" would normally refer to the last thing—was that the whole of these procedures are directed towards a settlement. That is one of the things that the Secretary of State must have in mind. He must have it in mind that a conciliation pause—and this is a phrase that has often been used—is likely to be conducive to a settlement in the circumstances of the case.
§ LORD SLATER
Can the noble Lord clear up one point in regard to his statement? Power is vested in the Secretary of State, and he passes the instruction to the Industrial Court. Are the Industrial Court accepting delegated powers from the Secretary of State whereby they are in a position to say "No" to the instruction from the Secretary of State?
§ LORD DRUMALBYN
Yes; that is so. The Industrial Court will have power 193 to say "No" to the Secretary of State, just as the courts in America have power to say "No" to the President: and I believe that in 4 out of the 29 cases, or something of that kind, they did say "No".
This brings me to what the noble Lord said about what has been happening in the United States. I was glad he said that, while this was an importation, it was not necessarily the worse for that, because I think many people have regarded the mere fact that the procedures are derived from experience in the United States as in some way derogatory. Comparable procedures to those in the Bill were introduced under the Taft-Hartley Act in 1947, but there are marked differences between them and those proposed in this Part of the Bill.
Before we consider the differences, I should like to refer to the noble Lord's reference to the way in which the Taft-Hartley Act has worked. The Act empowers the President, as the noble Lord said, to appoint a board of inquiry to investigate and report on any industrial dispute which imperils the national health or safety. It empowers him on receiving that report to apply to the Federal Court for a 60-day injunction against that strike or lock-out. It enjoins him to make available the Federal mediation and conciliation service, which the parties are obliged to use during the 60 days until a settlement is reached. Before granting an injunction the Federal Court must be satisfied on two grounds that the strike or lock-out affects an entire industry, or a substantial part of an industry, and will imperil the national health or safety. During the 60 days the board of inquiry must make a report which it must present before the expiry of that period if a settlement has not been reached. The report must include a statement of the employer's latest offer. In the 15 days following the end of the period the national labour relations board is required to hold a ballot of the workers involved on whether to accept that offer, and within five days after that they must certify the result of the ballot. If the ballot goes against the offer, the injunction is discharged and the strike or lock-out can be resumed.
The latest information available to us is that within the past 25 years there have been 29 instances in which the pro- 194 cedure was invoked. In 25 of these injunctions were granted. In only one of the 25 cases was the stoppage not halted by the injunction. In 12 of the 25 cases a complete settlement was reached during the 60 days, and in 3 more a partial settlement was reached. Of the remaining 10 cases, in 4 a settlement was reached quite soon after the standstill period ended and without further industrial action. This could hardly be described as a record of failure. The salient points of the procedure are that an inquiry must precede the application for an injunction, and that a ballot must be held on the employer's latest offer at the end of the period if a settlement has not been reached during it.
How does that procedure compare with the procedure in the Bill? The period of the injunction under the Bill is to be limited to a maximum of 60 days, whereas the period in the United States of America extends in all to 80 days: and it is understood that the legislation before Congress would extend it a further 30 days. But on the two salient points to which I have referred there is a wide difference. The Bill envisages emergency action by the Secretary of State. Let me lay the greatest stress on the fact that this is an emergency procedure, and that is the reason why there is not a further inquiry before the procedure is invoked. I would also say to the noble Lord that this is not envisaged as in any way a substitute for the normal proceedings of the Secretary of State in conciliation and the like: it is definitely a last-ditch measure.
The Bill envisages emergency action by the Secretary of State. There is therefore no preliminary inquiry. The Secretary of State has to ask himself two questions. First, is the stoppage, whether it has already begun or is imminent, likely to injure gravely the national economy or national security, or to create a serious risk of public disorder? Secondly, is the stoppage likely to endanger the lives of a substantial number of people or to expose them to serious risk of disease or personal injury? The Secretary of State must also have grounds for believing that a discontinuance or deferment of the stoppage would be conducive to a settlement of the dispute. There are thus two concurrent objectives: the settlement of the dispute without further embitterment, 195 and the protection of the public interest. If the Secretary of State is satisfied that the answer to either of the two questions is "Yes", he may then apply to the Industrial Court for an order, and he must satisfy the Court that there are sufficient grounds for making the order.
In applying for the order the Secretary of State must specify the person or persons responsible for initiating or threatening the stoppage. The person might be a trade union, or an organisation of workers, or a federation, or a company, or an association of employers. If the injunction is granted, then for the period of the order, which is limited to a maximum of 60 days (it may be less), to be tailored to the circumstances of the dispute, no person specified in the order may call, organise, procure or finance a strike or irregular industrial action short of a strike, or threaten to do so, or institute, carry on, authorise, organise or finance a lock-out or threaten to do so. The order may require any of the persons named to take steps within a specified period to secure the discontinuance or deferment of the industrial action.
Unlike the United States procedure, there is no ballot at the end of the period related to the employer's latest offer. The Donovan Commission drew attention to the filet that out of the dozen or so cases where a ballot was held, in not one was the employer's latest offer accepted in the ballot. Since these were all cases in which negotiation and conciliation had failed during the 60 days, that is hardly surprising. Logically the result throws doubt on the usefulness of holding a ballot in those particular circumstances, but not on holding ballots in general. The criteria by which the Secretary of State will judge the need for a ballot are the same as those by which he will judge whether to make an application to the Court for an order to restrain industrial action. There is one important addition: he must have reason to doubt whether the workers concerned really want a strike or the irregular industrial action, and whether they have had an adequate opportunity of indicating what they really want.
Before the Court makes an order for a ballot—if I may refer in advance to this matter because it is linked in the American procedure—it must be satis- 196 fled that there are sufficient grounds for believing that the industrial action appearing to be imminent would endanger the national economy, national security, public order, or the public health. That in itself should help to bring home to the workers concerned the seriousness of the issue. The ballot will do no more than reveal the true wishes of the workers in relation to the question put to them by the Court, assisted by the Commission on Industrial Relations if need be. Their leaders will not be bound either to desist from further action if the ballot goes against them, or to proceed with it if the ballot supports them. Unlike other statutory ballots provided for under the Bill, the results will be indicative, not decisive.
The concept of a mandatory conciliation pause before or during a strike or lock-out in order to settle a dispute which would almost certainly have serious consequences for the nation surely is a sound one. It was first adopted in the United States of America nearly a quarter of a century ago, and has worked tolerably well. In introducing it here we have the opportunity of learning from the experience of our friends in America, and of not only adapting their procedures to our needs but of improving on the procedures themselves. For instance, what has given rise to a good deal of argument in the Federal Court is the meaning of "imperilling the national health and safety". The criteria in subsection (2) of Clause 134 are much more precise and relate to the national economy, national security, public order and to the avoidance of disease, personal injury or risk to life itself on a considerable scale. Secondly, the Bill does not enable the Industrial Court to issue an injunction against a strike or lock-out, but only to make an order restraining the leaders of a strike from taking further action to promote it, and requiring them to take steps to discontinue the strike in the area of employment defined.
We have sought to devise a procedure which is both realistic and more flexible. The order does not directly apply to anyone except the persons named in it. They, and they alone, can lay themselves open to the discipline of the law if they fail to comply with the order. If it is found that there are individuals fomenting 197 trouble who are not covered by the order and ought to be covered, then the order can be extended to cover them. If not enough time for settlement has been allowed in the first instance, it can be extended. All this is absolutely necessary if you are going to try to reach a settlement within the period of 60 days. This is in line with the general tenor of the Bill. The noble Lord said that this was anti-trade union legislation; it is nothing of the sort. It is legislation designed to achieve settlements peacefully. Where the eruption or continuance of a strike or irregular industrial action is likely to impose serious hardship, loss of health or life itself for a considerable number of people, or to endanger the economy or the security of the nation, there is surely a special obligation on the Government to secure that it does not take place or is suspended until all possible steps to settle the dispute by negotiation and conciliation have been taken.
I ask your Lordships particularly to note that it is only where the Secretary of State is satisfied that a conciliation pause would be conducive to the peaceful settlement of the dispute that he is to be empowered to make an application for an order to the Industrial Court. The noble Lord said that the Secretary of State would be under perpetual pressure to exercise these powers. I hope I have made it very clear that these powers are expected to be exercised only in the last resort where there is a serious threat to the life of the community. In other words, strikes, lock-outs and irregular industrial action that will impose widespread hardship and endanger the wellbeing of the nation are not outlawed by the Bill, but it is surely right to do all that we can to ensure that they are absolutely the last resort.
It is true that, despite the Taft-Hartley Act, strikes last longer in the United States than they do here. I think the noble Lord, Lord Slater, said that they last four times as long. But they come at the end of an uninterrupted period of work. There are fewer stoppages per 100,000 workers in the United States than there are here. More people are involved in each stoppage in the United States than here, and stoppages, on average, last much longer. The Taft-Hartley Act was not directed against strikes as such, but 198 towards protecting the public from those strikes and lock-outs that could be particularly harmful. Mercifully such events are rare. What is needed is an emergency procedure to deal with them when they occur, and that is what Part VIII of this Bill is all about.
§ LORD DIAMOND
I am sorry to interrupt the noble Lord, for he was giving us some very interesting statistics. He gave us the statistics of stoppages per 100,000 workers. The relevant statistic is the number of days lost. I am sure he has those figures, and the Committee would be much helped by them.
§ LORD DRUMALBYN
I have those statistics. I have the number of working days lost per 1,000 through industrial disputes in mining, manufacturing, construction and transport, and the average for the year—the number of working days lost—over the ten years, 1960 to 1969 inclusive, is 268 in the United Kingdom and 977 in the United States. But we have said, time and time again, that our particular problem—the Donovan Commission brought this out—is the incidence of strikes; the fact that they occur suddenly. that they are frequent and unpredictable. This is what we have discussed at great length in the earlier stages of the Bill.
This Part of the Bill does not in any way conflict with the powers available under the Emergency Powers Act, which has been in operation for half a century. Under that Act a State of Emergency can be declared, as the noble Lord said, by Royal Proclamation, but that is in circumstances where the community or a substantial part of it is likely to be deprived of the essentials of life. That Act envisages the means of securing that the essentials of life will continue to be available. These provisions are directed towards a settlement of the dispute. In practice it is likely that an application would be made under this clause before a State of Emergency was declared under the 1920 Act powers. The application might well avoid the need for such a declaration.
In conclusion, may I stress four things. This Bill accords with the American procedure in leaving the Court discretion as to whether or not to issue an injunction on the application of the Executive. Mrs. Castle's plan also borrowed from the United States of America the idea of a 199 conciliation clause, but the order was to be made by her, not by the Court. The noble Lord contrasted the possibility of an order's being made by a Minister and the order's being made by the Court. But if we have to choose between arbitrary government and legal process, we on this side prefer legal process, if only because, whatever may have been true a hundred years ago, the courts are far more widely regarded as impartial than any Minister can possibly be. When we are dealing with emergencies, speed is of the essence. I want to be fair about this. I recognise that arbitrary action has the advantage in the short run in the matter of speed; but in the long run acceptance is surely of greater importance and value.
These emergency procedures place no liability whatever upon the ordinary worker; they put nobody at all at risk of any penalty unless he wilfully and flagrantly flouts the order of the Court. And the order of the Court, let us bear in mind, is made in the interest of the whole public. An order to restrain industrial action implies no judgment on the merits of the dispute, no imputation of blame at all. And lastly, the procedures are designed, as I have said before, to achieve two objects: the peaceful settlement of disputes that could be harmful or dangerous, and the protection of the public and of the national interest, which, after all, is the prime duty of Government and Parliament.
With that explanation of this Part of the Bill, I beg to move at this stage that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
§ House resumed.