§ 4.24 p.m.
§ House again in Committee.
§ Debate resumed on the Question, Whether Clause 134 shall stand part of the Bill?
§ LORD DAVIES OF LEEK
Because of the most important and necessary interruption of our discussion of this Bill, which none of us object to, I shall curtail what I wanted to say about one of the most vital clauses in this entire Bill. The entire Bill revolves on the hope of the Government of improving industrial relations, and this hope rests on this Industrial Court as much as anything. With all sincerity, and no vituperation at all, I beg the Government to think deeply before they include Clause 134. Under subsection (2) the Government may apply for powers to discontinue or defer an industrial action upon (a) the basis that the strike is gravely injurious to the national economy, et cetera, or (b), is likely,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.We have known all that phraseology over 50 years of industrial action. We have known it under the 1920 Act and under the 1964 Act, which gave emergency powers to deal with this. Those of us who lived through periods of great industrial tension in the 1920s and the 1930s know that Britain can be very proud of its industrial relations, which have been worked out over more than 100 years of hard trial and error, and which are second to none in the world. I do not know why Tory policy has suddenly become so eclectic that it has to pick up little bits of philosophy from the Common Market or the United States of America about industrial relations. We can be very proud of the fact that intelligent, organised industrial relations sprang from the basic political common sense of the British people. It is one of the assets that this country possesses. This clause is flying in the face of that, and I will endeavour briefly to explain why.
First, I must make an apology to the Minister. I have never done this before, but I shall not have the pleasure of listening—and I do not say this in any 214 facetious way—to the careful replies that he endeavours to give to the Committee. I have an engagement at 5 o'clock, and I am going to be a hit late for it as it is. Therefore, if I disappear, do not think it remiss of me. I want to be as short as possible, but I want to make the point that under the Acts of 1920 and 1964 we have these powers. Disputes sometimes arise where, whatever the merits and demerits of the case, the Government's prime responsibility is to protect the public interest. We acknowledge that, and so do all responsible leaders of the trade union movement. Why, suddenly, in this Bill, because of the wave of denigration of the trade union movement by the Press for the 12 months before the last General Election, have we produced a legal framework as ironbound as this? We already agree, and any responsible trade union leader agrees, that certain public interests have to be protected. Even in the pits, and the steel industry, during the major strikes in the 1920s those who had mining enginering ability, and the firemen, were allowed by the trade union movement to go down the pits in order to protect life and limb, and to see that flooding did not take place.
All that protection is there without this Bill. This new piece of phraseology, or jargon, which has been clutched out of the air and reproduced in this clause is, in a way, going to make it difficult for the judges. I have not been trained in the law, but I cannot see how on earth they will be able to apply Clause 134. As I have said, the Government at present have powers if a state of emergency arises. Obviously the Government do not regard these powers as satisfactory. I tried to listen to what the Minister said. He said that the Secretary of State must be given additional powers to intervene in disputes which may seriously threaten the national health, safety, or the economy, and that in this clause they are providing them. In other parts of the Bill there are other powers, too. Under these powers the Government can go to the Industrial Court, who will go through the motions of adjudicating on another issue. When the Court is adjudicating on that second issue is when it will make an order postponing any further strike action for 60 days or so.
The Minister hopefully said, "Ah, it will be of help if there is this stage. 215 Tempers will cool, and we shall get them coming together for a reasonable settlement." But, in 99 cases out of 100, before a strike takes place there will have been long negotiations about wages and conditions. A strike does not appear like magic or like the dagger in Macbeth. It is something palpable which has grown up over 12 or 18 months between employer and employees. This clause seems to assume that a strike springs up overnight like a mushroom; and this is a type of mushroom clause that has been hurled into the Bill as an afterthought, to give the Secretary of State further powers.
I should have liked to develop this argument further, but that would be unfair. However, I should like the Minister to say that he will take back this clause and look at it, because it serves no function whatsoever and does not go beyond the rights which the Government already possess in existing Acts of Parliament. It will exacerbate industrial relations rather than temper them and heal them, and it will not make people co-operate. No Act of Parliament was able to deal with the Betteshanger situation at the height of the war, when this country was in a most terrible international and national situation. I do not think that this Bill could have dealt with it either, and I sincerely hope that the Government will listen to the appeals from these Benches.
§ LORD POPPLEWELL
I have listened very carefully indeed to the case put by the noble Lord, Lord Drumalbyn, for the retention of this clause. I was surprised at some of his examples, and by his reference to the American set-up. He was asked about the comparative position of this country and America in regard to days lost through strikes, but the two systems are completely different. In America there is a legal set-up, and the Tory Government are now suggesting something similar for this country. One would have thought, on listening to the noble Lord, that the American record in regard to strikes was much better than ours, but noble Lords ought to know the difference between the two systems. The latest available figures I have were published in the D.E.P. Gazette in 1968, and show that then 1,590 days were lost in America for every 1,000 working people, compared with 370 216 days lost in this country. Your Lordships will therefore see that the Americans lost nearly five times more days through industrial action than we did. Why should we change from our voluntary system to this legal system which has proved so disastrous elsewhere? As regards mining, manufacturing, construction and transport, where we have our major unofficial stoppages, we are sixth in the international table; Australia, Italy, New Zealand, Ireland and France are all well above us, Canada is just below, and the United States is below that. That has been achieved with our voluntary system, so why change it to establish these legal courts?
There is a completely new departure here, and under Clause 134 the Secretary of State can immediately apply to the Industrial Court for an order. The conditions are specified in the various subsections and paragraphs, and there is great potential for the Secretary of State to make an order. Paragraph (c) of subsection (1) states:that, having regard to all the circumstances … it would be conducive to a settlement of it by negotiation, conciliation or arbitration if the industrial action were discontinued or deferred".That is turning the present position upside-down. The normal practice in industry is to negotiate freely and unfettered, concentrating on the demands of the workpeople for a higher standard, and on the position of management in regard to their commercial success or otherwise. That is the accepted procedure under which negotiations take place. But under this Bill the Secretary of State will be able to step in immediately he thinks that something is going wrong, before the conciliation boards have had a full opportunity of going through the pros and cons. Whether or not he interferes will depend upon his political complexion, because this is a political Bill and one knows the different rulings that are given when political questions arise. That is why I deprecate this clause, and I am certain that it will not improve industrial relations.
As regards the cooling-off period, in a number of cases in America it has not led to an easement of the trouble. In effect, it has hotted up the disputes between both sides, because before the position is reached of declaring a strike, 217 or anything of that description, both sides of industry are a long time in negotiation, and this is the cooling-off period.
We shall not prevail, and the Government will carry this clause; but I think it is as well to get on record that we are changing from a voluntary system, which has kept a better and longer peace in this country than in the six other industrial nations which are above us in various types of legal procedures. They lose far more days per year per 1,000 people than we do with our voluntary system. It is as well to get that on record, because that is something factual that should go out to the nation, irrespective of the ideological approach that we are now witnessing in this Bill.
§ 4.42 p.m.
§ LORD BERNSTEIN
Is there any strike except the most trifling one which is not either "gravely injurious to the national economy" or which creates "a serious risk of public disorder"? That is my first question. My next question is: does the Bill enable the Court to forbid practically any strike up to 60 days without any responsibility to Parliament? Why do not the Government, through the Secretary of State, have at least the obligation to consult with the T.U.C. and the C.B.I. before taking action under this clause? They appear to intend to do so under Clause 137. Is this interference with the freedom to strike not a violation of the international obligations which the Government have under the European Social Charter, where we undertake to respect that freedom?
My principal objection to the proposals as I see them is to page 97, lines 14 to 16. Under the Emergency Powers Act 1920, a Royal Proclamation of Emergency can be made ifany action has been taken or is immediately threatened by any persons or body of persons of such a nature and so extensive as to be calculated, by interfering with the supply and distribution of food, water, fuel or light or with the means of locomotion …,and so on. Now we have that protection. Why do we want this further protection? There must be a limit to the exercise of the freedom to strike where human lives and human health are involved: I grant that. But the Emergency Powers Act gives you all that. It requires that at least a substantial portion of the com- 218 munity must be in danger of being deprived of the essentials of life.
But no emergency provision that I have been able to find goes so far as Clause 134. It contains three elements: the likelihood of grave injury to the national economy; the likelihood of imperilling national security—I accept that one; and the likelihood of creating a serious risk of public disorder. My concern is with Nos. 1 and 3. First, grave injury to the national economy. It has been rightly observed that it is this point which distinguishes the Bill not only from previous legislation here but also from the Taft-Hartley Act, which has been constantly quoted here. Is there any major labour dispute which does not cause "grave injury to the national economy"? If, in the external economic relations of the country, it reduces exports, it obviously does. If it increases the need for imports, it obviously does. If newspapers, for instance, had to be printed abroad, it would affect the economy by affecting imports. So far as I can find, the formula goes further than any emergency provision in this country or abroad. It certainly permits intervention in any major dispute in which the Government choose to intervene without their going to Parliament.
On the third point, what is "public disorder"? Every transport strike, I should think, causes public disorder somewhere. More than that, any strike in any of the public services does. The dustmen's strike certainly did. Given the enormous scope of the emergency provisions, it becomes all the more important that the Government should be responsible to Parliament for the measures taken. In the Emergency Powers Act the powers of Parliament are most carefully safeguarded. So far as I can read them, if it is not in Session, Parliament must be summoned. within five days after a Proclamation of Emergency. Regulations must be confirmed within seven days by both Houses. No proclamation is in force for more than one month, though it may be extended. Under the Bill, as I read this clause, the Secretary of State must take the initiative, and for this he is no doubt accountable to Parliament. But the decision to impose sanctions goes beyond that. The decision comes from the Industrial Court, and cannot even be debated by either House. 219 This is, in effect. a total reversal of policy compared with the 1920 Act. This clause is modelled on the pattern of the Taft-Hartley Act, but that Act operates in a Presidential and not in a Parliamentary democracy. I think this clause is wrong for this country, and will not produce the industrial peace which we all desire. I urge the Government to take it back.
§ 4.45 p.m.
§ LORD DRUMALBYN
If I may answer the points which have been made, first of all, may I deal with what the noble Lord, Lord Bernstein, has just said. He has described this as a total reversal of policy. It is not that at all: it is the taking of complementary powers to cover an area which is not at present covered. The Emergency Powers Act, to which he referred, does not give power to order people to go back to work. The purpose of these particular provisions is to get people back to work while a settlement is being negotiated. The noble Lord made reference to what happens in America; but before I deal with that I would point out that the incidence of this kind of intervention (if the noble Lord would like to call it that) in America has, over the years,been roughly about one per annum and, as I said, in about half those cases a settlement was reached during the period of conciliation pause.
On the point of responsibility to Parliament, the Secretary of State is always responsible to Parliament for his conduct of industrial relations. In the normal way he does not have to go to Parliament to be authorised to take the steps that he takes in the course of industrial relations. He reports what he is doing; he does not need any kind of formal authorisation. It is only in regard to the Emergency Powers Act that confirmation is required. So that in this case he will be in exactly the same position as in any other case in relation to the conduct of industrial relations.
The noble Lord then asked, "Why not consult the T.U.C. and the C.B.I., or at any rate why should there not be a provision requiring the Secretary of State to do so?" These are emergency provisions, and the purpose of them, obviously, would be to bring people back to work as soon as possible in the conditions specified. The conditions specified 220 must be that the strike has begun or is likely to begin—this is the first provision —and you either want to avoid a strike that is about to take place or to stop a strike that has already begun, with a view to reaching a settlement. These are the purposes; and this is something that is not provided for in the law at the present time. As I say, in America the experience is that it is not often used; but it is something of a last resort, to fill a gap that at present exists in the armoury of measures available to the Secretary of State.
It is not necessarily a question of introducing this measure before all conciliation has been exhausted. The point is that when a strike is just about to take place or has already begun and conciliation has already failed, he might be able to take these steps if he thinks that they are likely to lead to a settlement. I hope that will clear up the position at any rate to some extent. The noble Lord, Lord Bernstein, shakes his head; but in all the speeches I have heard him make here I have never yet found him to be convinced by anything. One of these days, I hope, we shall succeed.
§ LORD POPPLEWELL
Before the noble Lord sits down, will he deal with those figures which I quoted, regarding days lost in America and in this country?
§ LORD DRUMALBYN
The noble Lord is quite right. I quoted similar figures myself; but I took a ten-year average while he took a particular year. He is right about the number of days lost in comparison between the United States and here; but this is not the point. This involves a great number of stoppages in both countries over the years. In the case of America we are dealing with an average of one stoppage a year where there is a really serious danger to the economy.
§ LORD HUGHES
I have a point that I wish to raise. It is rather interesting that I should be doing so now, because yesterday, with the co-operation of the noble and learned Lord, my noble friend Lord Stow Hill was able to raise a point in relation to Sections 4 and 5 of the Conspiracy and Protection of Property Act 1875 which were related by him to Clause 134 which we are now discussing. 221 I should like to ask the noble and learned Lord about the remarks he made in respect to that which do not seem to me to read in the way which I am certain he intended them to read. I will read from yesterday's Hansard, col. 102: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.He went on: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….I will not continue reading, but it seems to me that either the noble and learned Lord used the wrong word or he has been misreported, because the word "protect" is a nonsense in this context. It would mean that Section 4 protects strikes in breach of contract and that Section 5 protects acts which would endanger human life. I am certain that that is the last thing the noble and learned Lord intended to convey, but it would be wrong that it should remain a record of what the sections mean.
I should like to go on to one other point. Later on, in referring to the sections, he said (col. 103):… though the deterrent of a £25 fine, the maximum at present existing, is not something which one might think would instill fear into the heart of the more determined criminals.I looked up the 1875 Act, first to find out whether, by some peculiar legal caprice, "protect" in law could mean the opposite of what people would ordinarily take it to mean; and I found, in my reading, that in the Act of 1875 the provision was not for a £25 fine but for a £20 fine. There was also the alternative of three months' imprisonment to which the noble and learned Lord did not refer. It may be that a £20 or a £25 fine would not be a deterent; but three months' imprisonment might well be. What I want to ask is: was the £20 fine subsequently amended to £25, or was that an error? If so, was the three-months' imprisonment alternative removed at some time, and is there now no imprisonment? I think that this is rather important because we have been discussing in the last few days the possibility of imprisonment or 222 the possibility of there not being imprisonment. I should like to be quite clear in my own mind whether this particular penalty of imprisonment has been removed.
THE LORD CHANCELLOR
The noble Lord is quite right in the first point he raised. The word "protects" should obviously read either "prevents" or "prohibits", as the context requires. Whether this was a misprint or a slip of the tongue I cannot charge my memory with saying; but I do not think that anybody could be misled by the printed Report, which is obviously in error, either because 1 was guilty of a slip of the tongue or that there was a slip by the shorthand writer or the printer who set up the type. With regard to the other point, I regret that I was wrong about the £25. I am afraid that I read from my brief without looking at the Act. The noble Lord was good enough to draw my attention to the point that the Act says £20 or three months. My brief said "£25". I should have looked it up. I am sorry.
§ LORD DONOVAN
I think it is right to say that the three months' imprisonment has remained unaltered.
§ THE LORD CHANCELLOR: They both remain unaltered.
§ 4.56 p.m.
§ LORD CHAMPION
The noble Lord, Lord Drumalbyn, earlier stressed the point that the conciliation pause which is contained here will be conducive to the settlement of a strike, or of industrial action short of a strike. Experience has shown that this sort of cooling-off period merely enables the positions taken up to harden. This appears to be the experience which comes to us from the United States: that during that period not only do positions harden but in some cases the extent of the strike becomes greater than it was initially. 'The noble Lord called in support of his argument some figures which I thought were those given in the Donovan Report, in paragraph 421, which says:In all but one of 24 cases in which injunctions were granted, a stand-still period was successfully imposed. In sixteen cases a settlement was reached during or shortly after the stand-still period, but in seven cases stoppages did take place or were resumed after it.223 The noble Lord might have gone on to read paragraph 423, which says:The record under the Taft-Hartley Act in the United States has been worse than the record in our country. We have been singularly free from strikes in recent years which would have come within the scope of a ' Taft-Hartley' kind of procedure.Later, in paragraph 424, the Report says:However, account must also be taken of the occasions when strikes have been imminent but have been averted through our existing flexible proceedures If the more rigid arrangements of the fixed cooling-off period had been used in their place, strikes might have taken place which were in fact avoided. The 60-day period may be taken into account in advance by the parties and in any case fits more easily into a system where collective agreements expire on fixed dates, unlike the system here, where the timing of negotiations is less hard and fast.On this part, the Donovan Commission conclude with these words:We think it preferable that the Government's present freedom of action should be preserved, and we do not think it has been shown that its powers need to be increased.Anyone who has ever had anything at all to do with industrial relations is bound to support that point of view, which is here expressed by a body that spent so much time looking into the matter and with such great expertise.
The noble Lord talked about the figures. I must say that I find the sort of figures he gave not at all convincing. If we look at the table given on page 95 of the Donovan Report we see that the number of working days lost per 1,000 employees in the United Kingdom is given as 190; in the U.S.A., as 870. I believe that it is now the case that Canada has provisions of this sort operating. In the case of Canada, the figure is 970 days lost per 1,000 employees. The average number of persons involved per stoppage in this country is 340, and in the United States of America 470. It is true that the number of stoppages per 1,000 employees is smaller in the United States than here; namely, 13.2 in the United States and 16.8 here. What the noble Lord is trying to tell us is that the short, snappy strike that so often takes place in this country is more damaging to the economy than one that lasts much longer. I cannot accept that, and I will not, because I believe it is wholly contrary to the facts.
The noble Lord, Lord Drumalbyn, also talked about emergency procedures; and 224 so did my noble friend, Lord Bernstein. I agree wholly with my noble friend Lord Bernstein that, by the procedure under this Bill, we are taking important decisions out of the hands of Parliament and placing them in the hands of the courts. This is not something which I regard as satisfactory. What is the position under the Emergency Powers Acts? First of all, the Government manage to persuade the Sovereign to issue a Royal Proclamation. Under the terms of that Proclamation Parliament passes the necessary regulations, so it is necessary to come to Parliament for sanction to do anything under the Emergency Powers Acts. As I said in my original speech, this procedure has worked extraordinarily well in this country, and I should have thought it crazy to interfere with the Acts in the way in which the Government are doing here. If you take something out of the hands of Parliament and place it in the hands of the Court, as the Government propose to do under this Bill, it is inevitable that we shall be told that it is not right for Parliament to criticise the Court.
§ LORD DRUMALBYN
May I intervene for a moment? I tried to make plain that these powers were regarded as complementary. They are in no way conflicting; they deal with different things. It is also the case that the emergency powers can come into effect right away and lapse, unless they are confirmed by Parliament.
§ LORD CHAMPION
If the emergency powers deal with something entirely different, why do we get here words which seem to me very similar to those in the Acts? There are additions which I regard as wholly objectionable, but the main words appearing here seem to be lifted, with slight emendation, from the Emergency Powers Acts. I regard this as a matter of very great importance. The noble Lord says that in the United States of America there is, roughly, one intervention per annum in the cases of the instances that fall to be dealt with under Taft-Hartley. I believe that is what he said, and the noble Lord nods, so clearly he did say that. The noble Lord also told us that the powers in this clause are wider than those under Taft-Hartley. I understood him to say that—that these powers are wider.
§ LORD CHAMPION
That may be so, but in my opinion they are very much wider than anything that I have read which it is possible to do under Taft-Hartley. If I am right, clearly the one intervention per annum is not in any way comparable to what might occur under the provisions of this Bill when it comes into force, as I fear that it will. Noble Lords opposite are determined to push it through, but it is right that we should point out the mistakes and errors contained in the Bill. I might live long enough to say one day, "I told you so", but I would not be too sure about that. But I shall always keep it in mind in case at some time I have the great pleasure of standing at this Box and telling the noble Lord, Lord Drumalbyn, "I told you so on—" I forget what date it is, June 10, 1971.
§ SEVERAL NOBLE LORDS: It is June 9.226
THE LORD CHANCELLOR
I hope that the noble Lord will live a very long time and that he will be in a position to speak from the Opposition Dispatch Box for a very long time.
§ LORD CHAMPION
That is very kind of the noble and learned Lord. I reciprocate that wish, in respect both of the noble and learned Lord and also the noble Lord, Lord Drumalbyn, whom I have always held in great friendship. But I think he is making a mistake in telling us that this is a good Bill; it is not, it is a bad Bill. For that reason I hope that the Committee will divide against this clause and defeat it, but I fear that may not be the case.
§ 5.6 p.m.
§ On Question, Whether Clause 134 shall stand part of the Bill?
§ Their Lordships divided: Contents, 139; Not-Contents, 49.227
|Aberdare, L.||Dundee, E.||Macpherson of Drumochter, L.|
|Ailwyn, L.||Eccles, V.||Malmesbury, E.|
|Albemarle, E.||Elliot of Harwood, Bs.||Margadale, L.|
|Alexander of Tunis, E.||Emmet of Amberley, Bs.||Merrivale, L.|
|Amherst, E.||Falkland, V.||Merthyr, L.|
|Amory, V.||Ferrers, E.||Meston, L.|
|Auckland, L.||Ferrier, L.||Milverton, L.|
|Balerno, L.||Forester, L.||Monck, V.|
|Balfour, E.||Fortescue, E.||Monckton of Brenchley, V.|
|Balfour of Inchrye, L.||Garner, L.||Morrison, L.|
|Barnby, L.||Gisborough, L.||Mowbray and Stourton, L.[Teller.]|
|Beauchamp, E.||Grenfell, L.|
|Beaumont of Whitley, L.||Gridley, L.||Napier and Ettrick, L.|
|Belhaven and Stenton, L.||Grimston of Westbury, L.||Northchurch, Bs.|
|Belstead, L.||Guest, L.||Norwich, V.|
|Berkeley, Bs.||Hacking, L.||Nugent of Guildford, L.|
|Bessborough, E.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Oakshott, L.|
|Blackford, L.||O'Neill of the Maine, L.|
|Bledisloe, V.||Hankey, L.||Orr-Ewing, L.|
|Boston, L.||Harris, L.||Poltimore, L.|
|Bradford, E.||Hatherton, L.||Rankeillour, L.|
|Brecon, L.||Headfort, M.||Rathcavan, L.|
|Buccleuch and Queensberry, D.||Henley, L.||Rea, L.|
|Byers, L.||Hives, L.||Reay, L.|
|Caccia, L.||Hood, V.||Reigate, L.|
|Clwyd, L.||Howard of Glossop, L.||Rennell, L.|
|Coleraine, L.||Howe, E.||Rhyl, L.|
|Conesford, L.||llford, L.||Robbins, L.|
|Cork and Orrery, E.||Inchyra, L.||Robertson of Oakridge, L.|
|Cottesloe, L.||Inglewood, L.||Rochdale, V.|
|Courtown, E.||Jellicoe, E. (L. Privy Seal.)||Rothermere, V.|
|Craigavon, V.||Kemsley, V.||Ruthven of Freeland, Ly.|
|Crathorne, L.||Killearn, L.||St. Aldwyn, E.|
|Crawshaw, L.||Kilmany, L.||St. Helens, L.|
|Cromartie, E.||Kindersley, L.||St. Just, L.|
|Daventry, V.||Kinloss, Ly.||Salisbury, M.|
|Denham, L. [Teller.]||Lothian, M.||Sandford, L.|
|Derwent, L.||Loudoun, C.||Sandys, L.|
|Drumalbyn, L.||Lyell, L.||Sempill, Ly.|
|Dudley, E.||MacAndrew, L.||Sherfield, L.|
|Sinclair of Cleeve, L||Strathcona and Mount Royal, L.||Trefgarne, L.|
|Somers, L.||Tweedsmuir of Belhelvie, Bs.|
|Stamp, L.||Swinton, E.||Vivian, L.|
|Strang, L.||Tan law, L.||Wade, L.|
|Strange, L.||Teviot, L.||Ward of Witley, V.|
|Strange of Knokin, Bs.||Teynham, L.||Windlesham, L.|
|Strathclyde, L.||Thorneycroft, L.||Wolverton, L.|
|Addison, V.||Hoy, L.||Ritchie-Calder, L.|
|Archibald, L.||Hughes, L.||Royle, L.|
|Balogh, L.||Leatherland, L.||Segal, L.|
|Bernstein, L.||Lindgren, L.||Shinwell, L.|
|Blyton, L.||Llewelyn-Davies of Hastoe, Bs.||Silkin, L.|
|Brockway, L.||Lloyd of Hampstead, L.||Slater, L.|
|Brown, L.||McLeavy, L.||Sorensen, L.|
|Buckinghamshire, E.||Maelor, L.||Stonham, L.|
|Champion, L.||Mais, L.||Stow Hill, L.|
|Diamond, L.||Moyle, L.||Summerskill, Bs.|
|Douglas of Barloch, L.||Noel-Buxton, L.||Taylor of Mansfield, L.|
|Douglass of Cleveland, L.||Pargiter, L.||Walston, L.|
|Gaitskell, Bs.||Phillips, Bs.[Teller.]||Wells-Pestell, L.|
|Gardiner, L.||Plummer, Bs.||White, Bs.|
|Garnsworthy, L.||Popplewell, L.||Williamson, L.|
|George-Brown, L.||Raglan, L.||Wynne-Jones, L.|
|Hilton of Upton, L.[Teller.]|
Moved accordingly and, on Question, Motion agreed to.
§ Resolved in the affirmative, and Clause 134 agreed to accordingly.
§ Clause 135 [Order of Industrial Court on application under s. 134]:
§ 5.14 p.m.
LORD CHAMPION moved Amendment No. 277F:
Page 97, line 38, leave out from second ("Court") to ("that") in line 40 and insert ("if it is satisfied on the evidence").
§ The noble Lord said: The situation here is that the Secretary of State, using his absolute discretion, brings a matter to the Industrial Court on an application which will, I presume, tell the Court that the Secretary of State is of the opinion that there is existing in this country a grave risk of injury to our national economy or to our security or a risk of public disorder or that the lives of people are in danger by reason of a strike or a threat of a strike or other industrial action. The Court then, under subsection (1) of this clause, will have to be satisfied on the evidence that there are sufficient grounds for believing that those conditions exist, and if it is satisfied, the Court shall make an order.
§ The Court has to be satisfied, not that the situation is gravely injurious to the national economy, et cetera, but that there are sufficient grounds for believing that this is the case. It will be obvious to your Lordships that I am not a lawyer, 228 but it has been represented to me that this believing (with "believing" underlined) that a condition is fulfilled is about the lowest standard of proof required anywhere by an English court of law. In civil law, as many of your Lordships will know, it is necessary to prove matters on a balance of probabilities. In criminal law, it is necessary to prove matters beyond reasonable doubt. I think it fair to ask here what is the sort of evidence that will be presented to the Court. What evidence will be called for? What State documents will be presented to the Court and what State documents might be withheld by the Secretary of State, claiming privilege? Certainly it ought not to be sufficient, as some people have suspected might be the case, for the Minister's affidavit to be accepted by the Court. The course that the Court might follow is the serious one of bringing the law into an industrial dispute, and it must satisfy itself on the evidence before it that the condition alleged by the Secretary of State really does exist. It ought not to be enough for the Court to believe that the condition exists; the Court ought to be completely satisfied on the evidence adduced before it that the conditions exist beyond a peradventure.
§ One is entitled to ask what sort of hearing the Court will be expected to ensure before it makes an order. I take it—and I hope that the noble Lord will answer this point when he comes to 229 reply—that here there is no question of a judge of the Court, or a judge and one appointed member, granting an order in chambers restraining a person or persons from certain,actions. What I am getting at here is that it ought to be and must be done in open court and not in camera, as I understand happens in certain actions which take place in some courts in our land. Upon whom will the Court call to give evidence of the existence of the conditions set out in Clause 134(4)? As I have said, it ought not to be enough for the Secretary of State to say that the conditions exist. It ought not to be enough for him to go along and say, "I am positive that these conditions exist."
§ I think that under this Bill a number of arbitrary actions will be taken by the Secretary of State. This may well be an arbitrary action, but the Court must not accept that any arbitrary decision which the Secretary of State may make necessarily proves to the Court that the conditions postulated in this clause in fact exist. Appearing before the Court there ought to be witnesses giving evidence, in the case of a strike, of its extent and probable effect if continued, and, in the case of a threatened strike, how many firms or undertakings will be affected, the products of the firms or the nature of the services provided by the undertakings, and certainly, in the difficult area of the contemplation of an irregular industrial action, competent witnesses as to the possible effect of such action if the contemplation turns into action.
The Court in any case will have a very difficult task, and I would have thought that before it has heard all the evidence it ought to have any emergency would be over. Certainly the Court, before making an order, ought to be satisfied on the evidence—and "being satisfied" seems to me to be a lot more than "believing" that something is the case. It would be disastrous if the Government's assertion that a national emergency was threatened were to be accepted almost without question. The experience in the United States under Taft-Hartley has been that no court has ever been willing to override the judgment of the Government on such a matter. As George Meaney, President of the American
Federation of Labour and Congress of Industrial Organisations, puts it:
In practice under Taft-Hartley a national emergency is any labour dispute that the Government decides to so label.
§ That is the experience of the United States. I hope it will not be the experience here. But one is inclined to think that the system of justice in that country is very similar to the system of justice here, and it would be a very bad thing if, after a few years' experience here, we should have to say precisely this.
§ It may well be that the Court may find itself so ham-strung that almost inevitably it will be forced to believe what the Secretary of State has told it. I would have thought that this would be contrary to anything this Committee would want, and anything that Parliament would desire. For that reason I hope the Minister will be able to satisfy me on this point of "believing", and if he cannot we must try to do something about removing it from the Bill. I beg to move.
§ LORD TAYLOR OF MANSFIELD
I support my noble friend Lord Champion in all that he has said. May I ask the noble Lord to tell us whether a system of case law will be built up on the decisions arrived at by the Industrial Court?
§ 5.23 p.m.
§ LORD DRUMALBYN
The noble Lord is seeking to substitute here for the the wordsthe Court, subject to its being satisfied on the evidencethe wordsif it is satisfied on the evidence".
§ LORD DRUMALBYN
I beg the noble Lord's pardon. I was referring to the wrong line. In fact he is really asking for a very high standard of proof.
§ LORD CHAMPION: That is right.
§ LORD DRUMALBYN
The wording would then be:… the Court, if it is satisfied on the evidence that the condition specified in subsection (2) of that section is fulfilled, shall make an order under this section.231 We are not here dealing with a criminal situation, nor would we expect a standard of proof such as is required in criminal proceedings; but we are dealing with an emergency situation. Obviously the effectiveness of this clause would be seriously altered if there were to be a long wrangle in court as to whether the condition specified in subsection (2) of the previous clause was fulfilled—that is involving a question of grave injury to the national economy, and so on. The function of the Industrial Court is not to decide whether there has been a breach of law by any of the parties in the circumstances of an industrial dispute: that is not the standard of proof required. The function is to impose a statutory restraint on a party organising industrial action which is seriously damaging to the national interest or likely to be seriously damaging to it. That restraint is for a limited period and for a specific purpose: for the purpose of negotiation or conciliation.
The Court also has the further function of acting as a watchdog to ensure that the Secretary of State, in his anxiety to avert a damaging strike or lock-out, or to see that a strike which is or is likely to be damaging is desisted from, does not invoke these procedures without having sufficient grounds for believing that a national emergency exists or is likely to exist. One has to envisage the circumstances that may arise here. The Secretary of State, before he makes his application, has to be convinced that he has a duty to the nation to bring to an end a dispute which is already running into the strike area. It would be quite wrong to change the burden of proof in the manner suggested. As I said, this is a burden of proof that is more appropriate to criminal jurisdiction, when a court has to be satisfied on the evidence before it can convict. But to apply that formula to the circumstances of an industrial dispute could mean industrial action continuing for days or even weeks before the Court reached a decision, with the parties accumulating evidence and counter-evidence, while the situation was deteriorating in the meantime.
By the time the Court reached a decision in such circumstances, the hope of averting an emergency might have gone, and an application for a restraint order might have been rendered quite futile. It 232 is no good suggesting that the Court could make an interim order in these circumstances, because it would still have to be satisfied on the same criteria before doing so. Therefore that would not work. If the substantive order were to require the burden of proof suggested by the Amendent there is no doubt that considerable time would elapse before the evidence which would enable the Court to make that substantive order had been presented. This is not to say that the Secretary of State will not have to make a convincing case to the Court on the basis of sound and sufficient evidence. It is simply to recognise the needs and realities of a potential emergency situation. I understand—I am subject to correction on this—that this is a unique formula to meet a unique situation of the utmost importance. It is not appropriate to an emergency situation that the Court would make an order if, and only if, it were satisfied that there were cast-iron grounds for deciding that the condition existed or was likely to exist. There is a matter of judgment involved here. I hope I have not shown an undue lack of sympathy for this Amendent.
The noble Lord asked what documents would have to be produced. Obviously, here the same rules would apply as apply in general so far as the production of State documents is concerned. This will certainly not be done on an affidavit of the Secretary of State. The Court will be able to test the evidence and to hear counter evidence. But if, as I say, the standard of proof were made as high as the noble Lord seeks to make it, it would defeat the purpose of meeting the emergency which it is designed to meet. Therefore we consider that the words that have been suggested to meet these special circumstances are the right words. The Court must be satisfied that there are good grounds for believing that these conditions exist or are likely to exist, and the Court will have to be satisfied by the Secretary of State on the evidence that that is so.
§ LORD SLATER
The noble Lord said that the Court will be set up as a kind of watchdog, and I want to pose these questions. The Secretary of State must be in a position to present his case to the Court on the basis of having information in regard to the two parties engaged in negotiation through the conciliation machinery 233 that exists between them. Do I take it that the evidence to be submitted by the Secretary of State to the Industrial Court for an order to be made will be evidence that has been collected by his conciliation officers? If this information is collected and is to form the basis of his application for an order, does one take it that it is submitted in memorandum form to the Court, and they examine the evidence without any consultation with the Secretary of State on the memorandum that he has submitted?
Secondly, will the two parties involved in a dispute be called in front of the Court, collectively or separately, to give reasons why they are unable to agree? And will a decision be given as and when they present their case? Will the Court, after sitting for some time, bring in a form of judgment whereby the order is brought into operation? Is that to be the position? If so, I can see great dangers. I do not know whether noble Lords realise that what is being done is the transferring of delegated powers away from Parliament which ought to remain with Parliament. They are being passed on to another body outside Parliament to form a judgment in regard to an emergency in which the State may be involved because of the action taken. When emergency powers are taken they cover more or less everything in regard to the State, and it is a decision that must be taken by Parliament, not by an outside interest. By these clauses I think we are seeking to remove powers from Parliament which should remain with Parliament.
§ LORD TAYLOR OF MANSFIELD
Before the noble Lord replies to my noble friend, will he say something about the point that I raised? In case he did not get it, I will repeat it. Will a system of case law be built up as a result of the decisions of the Industrial Court?
§ 5.35 p.m.
§ LORD STOW HILL
The broad question of policy has already been argued, and the Committee came to a decision on it in the last Division. But, having entrusted the Secretary of State with this duty and having involved the Industrial Court in participation in the discharge of their duty, it is, I should think, the bounden duty of this Committee, as a revising Chamber, to see whether the scheme is likely to work in practice and 234 exactly what is involved in the provisions of the two relevant clauses as they are drafted. The immediate observation of the Minister which brings me to my feet is that which he directed to the question of interim orders. If he will look back to Schedule 3, which I have no doubt he has well in mind, he will see that there is specific provision there for the making of interim orders. Regulations will have to be formulated stating exactly in what circumstances interim orders can be made, but there is obviously to be a genuine power to make interim orders.
How is this to work out in practice? We are, in the assumed circumstances, dealing with an emergency situation. Obviously tempers are going to be high, emotions will be running strong, and there will be keen controversy, perhaps ranging over large areas of the country, as to the rightness or wrongness of particular industrial action. One is examining this question against that background. I should have thought that in terms of the powers to make interim orders what is very likely to happen—and, indeed. what would be done by a Secretary of State if he were impressed by the critical nature of the situation, with which he had to deal—is that the Secretary of State will, as one now does in the case of the ordinary common law courts, go straight to the Court and ask for what in common law parlance is described as an interim injunction.
What has he to do in order to obtain an order from the Court for the equivalent, in terms of Clause 35, of what is in common law known as an interim injunction? Under the provisions of Schedule 3 he has to give notice to the persons whom he wishes to be affected by the interim injunction—if I may use that term for want of a better; it describes pretty closely what the Court can do under the terms of Clause 135. He can do that, normally speaking, in the course of a single hour. He has to serve a notice, which no doubt will be a written notice, and he can have that done almost immediately. In order to approach the Court, what has he to do? He has to satisfy the Court that there are sufficient grounds for believing that the conditions specified in subsection (2) of Clause 35 are present. He has to prove nothing. All he has to show is what again in the 235 parlance of the ordinary courts is described as a prima facie case. I suppose that in practice it means that his department will draft an affidavit, perhaps 10 or 15 paragraphs long, setting out the circumstances, and it may be that those circumstances unexplained undescribed, unexamined, give rise to the view that there is a prima facie case for supposing that the conditions specified in subsection (2) of Clause 134 are present. The Court can make an order straight away.
You will have a situation where 5,000 or 10,000 workers may be on strike. Passions run high and a situation may arise in which the people in the country as a whole may begin to think that they are in an emergency situation. Is it practical politics to entrust the Minister with that most drastic power? Is it desirable and wise in constitutional terms to put the court of law at risk? Remember that it is a court of law and that the public must retain trust in its impartiality. Is it wise for the Court to be called upon in the course of half an hour to make such a drastic order, as it is empowered to make under Clause 135, bringing that strike to an end—unless, of course, the order is disregarded? We like to think that we are a law-abiding people, and if the order is obeyed by those concerned the strike comes to an end at once. That is the most drastic power one can conceive. Is it really wise, in the first place, to involve the Minister and, far more seriously, to involve the Court in that situation?
This is a country in which the rule of law is supreme and the courts are highly respected. It would be tragic if the public confidence in the impartial administration of our justice were ever undermined even to the least degree. A court cannot help but make that order; it is in duty bound to do so if it thinks that there are sufficient grounds disclosed in the affidavit put before it. If one assumes that that is being done in the situation I have described, is one not and I use a phrase I used in a previous debate on this Bill—putting the Court at serious risk of having its decisions misunderstood, resented and gradually, with the passage of time, seriously mistrusted? In recent times we have had quite enough said about arbitration tribunals being not 236 sufficiently impartial to inspire confidence in industrial disputes. It would be a first-class disaster if a tribunal set up under this Bill, over which a High Court judge presided, was open to the same criticism. That is what the Government are doing. If this Amendment is not accepted by the Government—and the object of the Amendment has been clearly explained—that is the situation the Government are bringing about.
I have said that it will be a great tragedy if the confidence in the courts were undermined. It will also be a great tragedy of a similar character if the law begins to be treated with contempt. If an order is made in that critical situation, when tempers are high, people do not obey it and it is impractical to get it obeyed. I venture to intervene in this matter because I have had some personal involvement in the operation of what used to be called Order 1305. I know just how difficult it was when that order was broken—as this order may be disregarded in the future—to maintain respect for the law. It will be very said if legislation is put upon the Statute Book which produces a situation in which Ministers and the courts themselves are thought to be frightened of doing their duty. It is a situation which anybody who has ever heard of the office of the Attorney General has very much in mind, and in any legislation which is put upon the Statute Book we should be most careful not to produce the making of orders by courts which cannot be enforced, or which may produce the result that the impartiality of the court is suspected by large numbers of people.
§ 5.45 p.m.
§ LORD DRUMALBYN
May I deal with Lord Stow Hill's point first. He has referred to the possibility that an interim order may be made, and has gone so far as to say that if an affidavit were made an interim order would have to be made by the Court. The noble Lord will be aware that under paragraph 22 of Part II of Schedule 3 it also says:The rules shall not enable any interim order to be made by the Industrial Court against any person unless all reasonable steps have been taken with a view to securing that notice of the application for the interim order, and an opportunity of making representations relating to that application, have been given to that person".237 He perhaps has not realised entirely what the effect of any such interim order would be. The order would affect persons, and the persons in question who would be affected would be the strike leaders. If an interim order were made, it seems to me that the strike leaders could well be affected and it would be their duty then to cease to promote the strike, if that were already in operation, or to defer any further action if the strike were not already in being. I am advised that in this particular case the Court would still have to be satisfied, before it made even an interim order, that there were sufficient grounds for believing that the conditions specified in subsection (2)—
§ LORD STOW HILL: So I said.
§ LORD STOW HILL
I am sorry; I certainly said that. They have to be satisfied that there are grounds for believing that the situation has arisen in which the order can be made.
§ LORD DRUMALBYN
That the specific grounds referred to in subsection (2) of Clause 134 existed. In other words, the Secretary of State would have to satisfy the Court in the case of an interim order that there was reason for believing that the condition existed in exactly the same way as if it were making an order.
§ LORD SILKIN
It would be only the one side that would put up the case. The Court would not have the advantage of hearing the other side.
§ LORD DRUMALBYN
That is precisely what is not so, if the noble Lord will look at paragraph 22 of the Schedule. An ex parte interim injunction of that kind could not be given. It does not seem to me that there is very much likelihood of an interim injunction in a case of this kind at all. An order will be made, and the question we are discussing is whether that is not something like an interim injunction, and whether we should not have a very much higher standard of satisfaction of the court. That is the question we are discussing. I have been asked about the kind of things the Court has to be satisfied on. If I may say so to the noble Lord, Lord Slater, I do not think he is right in the points that he made. Perhaps I ought to answer 238 the questions he asked. He asked whether the evidence to be submitted is the evidence collected by conciliation officers? The answer to that must be, "No" because where a strike is likely to begin, or has begun, the question of whether it would be conducive to a settlement of it by negotiation, conciliation or arbitration, if the industrial action were discontinued or deferred is not a matter for the Court. The matter for the Court is dealt with in subsection (1)(b) and the conditions specified in the next following subsection—
§ LORD SLATER
The noble Lord has misunderstood me. I asked whether the conciliation officers of his Department, in view of what is likely to happen, will be responsible for getting the evidence or information whereby the Secretary of State would be in a position to make application for an order because of the emergency that might arise owing to the action that might be taken by the two parties.
§ LORD DRUMALBYN
Clearly, the Secretary of State will have to be satisfied by his conciliation officers in order that he may make up his mind on paragraphs (a) and (c) of subsection (1) of Clause 134. Obviously, in this he will be helped by his conciliation officers. All I am saying is that this is a matter for the Secretary of State to make up his mind on before he makes his application to the Court. What he has to satisfy the Court about is that the condition specified in subsection (2)—which is the provision dealing with whether there is risk of grave injury to the national economy and so on—is fulfilled.
I am not certain whether I misunderstood a previous question of the noble Lord about an affidavit. Obviously, affidavits will be made in cases such as this. But I understood him to ask whether the Court was going to act simply upon an affidavit. It would of course be a matter entirely for the Court to decide at what point it is satisfied by the evidence that the Secretary of State has supplied, and what further evidence it will require and so forth. But the Court must be satisfied, on the evidence, that there are sufficient grounds for believing that the condition referred to in subsection (2)—that is about the risk of grave injury to the national economy 239 and national security, public disorder, public order and so forth— is fulfilled.The difference between us relates to the standard of proof. This is all that is between us. if the Amendment which the noble Lord, Lord Champion, has put forward were accepted, then the standard of proof would be practically the same as in criminal proceedings. We do not believe that this would be either practicable or sensible in the situation of an emergency. The Secretary of State will obviously have access to figures as to the economy and as to the production of the factory, enterprise, undertaking or whatever it is, that is involved how long supplies are going to last, and all the rest of it. All this he will be able to show to the Court, in very much the same way as a Minister might show it to Parliament to satisfy Parliament also.
I was coming on to the noble Lord's next point regarding transferring powers away from Parliament. At the present time, Parliament has no power in any way at all—this is the very point—to arrest a stoppage, or to get people to go back to work. It has no power to do that. It is in circumstances where a stoppage is going to result in this grave injury to the economy, or possibly to security, or is going to cause injury to persons, or will be likely to cause injury to persons or to health, or where there is an imminent risk of that happening, that the application will be made. I should have thought that one could rely on any Secretary of State, who after all is in the long run responsible to Parliament, to exercise this responsibility himself of deciding when to make an application to a Court, in the full knowledge that he will have to satisfy the Court that he has reasonable grounds for believing that these serious results will ensue.
If one had to prove—this is the problem here—that the conditions specified in subsection (2) of the last clause were involved; if one had to prove thatthe industrial action in question has caused, or … would cause, an interruption in the supply of goods or in the provision of services of such a nature,and so on, up to the standard of criminal proof, it might take a very long time. 240 The application might be hotly contested; there might be a great deal of opposition from the parties concerned, and this would obviously defeat the whole purpose of the application. In the meantime, as I have said, the situation would be likely to deteriorate, and the whole purpose of these emergency procedures would be defeated. I am sure that that is not what noble Lords really want. What they want is some check upon the complete liberty of action of the Secretary of State in this matter. This is what we believe ought to happen. We believe that the Secretary of State ought to have to convince the Court that the grounds he thinks he has for considering that a serious situation is going to arise are good grounds. This is what is provided by the wording of the clause as it now stands, and I hope that the Committee will be prepared to accept it.
§ LORD TAYLOR OF MANSFIELD: What about case law?
§ LORD DRUMALBYN
On case law, each application is going to be made in different circumstances. Obviously, the Court will learn from its own experience as things go by. But the Court would obviously not be bound by previous decisions in circumstances of this kind. In any event, the circumstances are likely to be different in each case. I am not quite clear what the noble Lord expects from the Court's being bound by building up case law in a matter of this kind, but I should have thought that in these particular circumstances of an emergency situation the circumstances would be likely to differ in each case and that the Secretary of State would have to convince the Court in each case of the ground he has for the belief he holds.
§ LORD TAYLOR OF MANSFIELD
What the noble Lord is saying is that it is very unlikely that a system of case law will be built up.
§ 5.58 p.m.
§ LORD SLATER
I am sorry that the noble Lord has skipped over the point I put to him in regard to the emergency powers when he said that Parliament has no power to deal with problems of this type with which the Court will have to deal. My goodness! he must have a very short memory. Emergency powers have 241 been passed by Parliament on numerous occasions. Once case I shall never forget is that of 1926, when it had to introduce emergency powers because of the miners' strike at that particular time—or, rather, it was not a strike but a lock-out. Emergency powers operated as a result of Parliament's introducing them at that time. I cannot see any reason why Parliament should break itself, as it were, in two in dealing with certain emergency power regulations on one side here, while hiving-off certain emergency regulations governing certain issues or circumstances which might occur within a particular type of industry to the Judiciary outside Parliament, when Parliament itself ought to be responsible through the relevant Department. I cannot understand it at all.
§ LORD DRUMALBYN
This is obviously a difference of opinion between us.Under In Place of Strife it was the Minister who, without reference to any court, was going to make the order. We think it is better, in order to avoid controversy, to place this above politics by taking it to the Court, and the Court should decide, on the evidence submitted to it, whether or not there is an emergency situation in being or likely to occur.
§ LORD POPPLEWELL
Do I understand the noble Lord correctly, because he seems to imply that there would be no case law built up?
§ LORD DRUMALBYN
Obviously, lawyers always have regard to what has been decided in previous cases. But I do not think that case law, in the sense that one understands it in the ordinary way, would apply. If the noble Lord is referring to having regard to precedence this is one thing, but I understand case law to have a special sense, and it was this that I was suggesting would not apply in these circumstances.
§ LORD POPPLEWELL
I think that is a better answer than the one which the noble Lord gave to my noble friend Lord Taylor of Mansfield. I have mentioned this matter of case law on more than one occasion because, despite what may be said by the noble Lord, case law built on certain principles will gradually accumulate. If the noble Lord feels that this is a difference between the criminal 242 and the industrial courts, that is his opinion; but this has now been brought within the ultimate power of the Judiciary and one can reasonably foresee that case law on certain given lines will be laid down.
§ LORD CHAMPION
It seemed to me that towards the end of his first reply to this debate the noble Lord expressed the fear that delays might be caused by opposition from the parties concerned. As I understand Clause 134 of this Bill, "the persons so specified"—that is, specified in the preceding subsections—" together with the Secretary of State "are to" be the parties to any proceedings on that application". I hope no suggestion is going from this Committee that anyone who can be party to proceedings on anything will be in any way excluded from the proceedings of the Industrial Court. Clearly, they must be there; they must be invited to be there, or at least they ought to be there if they indicate their willingness to attend that Court and to appear in the proceedings. That will mean that there will have to be a careful examination by the Court itself of the things that are said to the Court by the witnesses who are parties to the proceedings.
I hope that it will never go from this Committee that a quick answer must necessarily be given, an answer which has not taken in all the evidence that may be available, just because the Minister feels that the action ought to be immediate. The noble Lord has said that the standard of evidence required ought to be different from that required in the criminal courts, which means that he is telling us that it ought to be of a lower standard. I cannot for one moment accept that. The idea here is that the Court will impose a statutory restraint by issuing an order. The noble Lord said that as though this were a rather trifling matter. It is not. It is a statutory restraint, and if the order is disobeyed the result to the parties concerned may be much more disastrous than some criminal proceedings might be. If the order is of a nature which is objectionable to the parties concerned, this result may flow from it; and certainly in the case postulated by my noble friend Lord Stow Hill the circumstances may well be much more disastrous than actions which take place from time to time in the criminal courts. 243 I feel that the noble Lord, Lord Drumalbyn, is still thinking in terms of the Court's acting almost on the "say-so" of the Secretary of State. But that would be absolutely wrong and contrary to everything we should expect from a Court set up under this Bill which, as I understand it, is to be a court of justice. It must be just to the parties who will appear before it and to the parties that will be named in the order which will eventually be made. I do not regard the reply as being satisfactory. I certainly did not quite understand—and I must read it again—the answer given to my noble friend Lord Stow Hill about the interim orders. It seemed that there was some suggestion that interim orders would require a different standard. I should have thought not. I should have thought they would have had the same effect on the people, although one would be for a much shorter period than the period of 60 days contained in Clause 135.
§ LORD DRUMALBYN
The noble Lord has exactly repeated what I said: that both in effect and on the evidence they would be very much the same.
§ LORD CHAMPION
I thank the noble Lord for that. I am bound to say that I cannot regard the answers that we have received on this side of the Committee as being completely satisfactory. However, it is a matter which deserves the most careful consideration. The noble Lord has made points to which I would wish to give a considerable amount of study, as would my noble friend Lord Stow Hill, whose knowledge in this sort of matter is perhaps unsurpassed in your Lordships' House. Therefore I am not proposing to ask the Committee to divide on this Amendment, but I shall seek to withdraw it, always bearing in mind—and I hope the Minister will bear in mind—that it is my intention to go through his remarks with a fine toothcomb before the Report stage.
§ LORD DRUMALBYN
Before the noble Lord actually withdraws the Amendment may I clarify one matter? If I may say so, I thought he summed up very fairly, but there is perhaps a slight misunderstanding. We are of course talking only about what the Court has to be satisfied about before making the order. That is 244 one thing: the other thing is. whom the order will affect, and of course the parties to be affected will have the right to be there and to make their representations. There will be no short-cutting on that.
§ LORD CHAMPION
I would expect, too, that, because this would be a part of the proceedings before the Court, the parties would be present at the proceedings taking place on the part of this clause that we are now discussing. However, I will not continue with this discussion but will ask leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.9 p.m.
THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF EDUCATION AND SCIENCE (LORD BELSTEAD) moved Amendment No. 277H:
Page 98, line 27, after (" section') insert (" made on an application relating to a strike, or to irregular industrial action short of a strike").
§ The noble Lord said: In moving this Amendment I would ask the agreement of the Committee to discuss with it Amendments Nos. 277J, 277K and 277L. These four Amendments deal with the powers of restraint against promoting or threatening to promote industrial action which is causing an emergency situation. As it now stands, Clause 135(4) requires the Court to make an order directing that no specified person shall promote the particular industrial action to which the order applies. In saying that, I am referring to the phrase "as the case may be" which is to be found in line 30. If, therefore, a specified person decides to organise some other form of industrial action than that contained in the order, he could do so without breaching the order so long as he refrained from continuing to organise the action to which the order applies. Thus there would be nothing to stop the organisation of a go-slow in breach of contract of employment while obeying a Court order to refrain from organising a strike.
§ It may be suggested that such a person could be prevented from doing this by a supplementary order under the next clause, Clause 136. But this, I would submit, is not so. That clause, in subsection (3), applies the supplementary order to persons not covered by the principal orders, and not to actions. The 245 supplementary order applies the provisions of the principal order to those additional people.
§ So the purpose of the first three Amendments which I am asking permission to take together is to ensure that where an application by the Secretary of State relates to a strike or irregular industrial action short of a strike, the Court's order will prevent any person specified in the order, or in a supplementary order, from taking any action to promote a strike or irregular industrial action or to threaten to do so. That is, of course, within the area of employment specified. I hope your Lordships will agree that this is a really much more sensible way of dealing with this difficulty than the alternative, which would be to make the supplementary order provisions a great deal more cumbersome. It harmonises in fact with Clause 139(1) relating to a strike ballot order.
§ The last of these four Amendments relates to restraint against promotion of a lock-out and is largely consequential on the last three. Again it applies the procedure already laid down for the strike ballot order in Clause 139. Obviously the promotion of a lock-out by an employer is a different form of activity than promoting a strike or irregular industrial activity. A restraint order applies, however, either to the one or the other. We have simply dealt with this by deleting the present paragraph (c) of subsection (4) and placing the general restraint powers against promoting a lock-out in a new subsection. The general powers of restraint are, however, the same. I hope that in those circumstances there may be support for these four Amendments. I beg to move.
§ LORD DIAMOND
We are all very grateful to the noble Lord for his very clear explanation of the group of Amendments we are discussing, and I do not wish to raise any question on the merits. I should, however, be grateful if the noble Lord could tell us of the genesis of the alterations. Under what circumstances did the Government come to the view that the proposals now being made are better than the proposals earlier made? I do not know what representations have been made, and I should be grateful, therefore, if the noble Lord could enlighten us on that.
§ LORD BELSTEAD
I should have thought in all reasonableness that the Government reflected that what they wanted to do was to secure particular objectives, and the way to secure those objectives was to move these four Amendments.
§ LORD DIAMOND
I do not wish to delay the Committee. I am sure that what the noble Lord said is accurate, and of course I take it completely. Therefore, what he is saying is that the Government had second thoughts, and it is not the case that any particular interest has been promoting a particular point of view.
§ LORD BELSTEAD: No, my Lords, not that I am aware.
§ LORD LEATHERLAND
One of the provisions of this particular subsection is that the Minister may apply to the Court for an order to prevent somebody financing a strike. I wonder whether the Government have taken into account the extent to which that might be an interference with ordinary business procedures. Let us assume that a union, thinking of embarking on a strike and preparing itself for the struggle that lies ahead, goes to its bank manager and says, "Will you give us an overdraft?" I have known unions to do that. Will the Minister be able to ask the Court to make an order prohibiting the bank from giving an overdraft? I have known similar circumstances where a union has gone to its stockbrokers and said: "We hold half a million pound's worth of such-and-such stocks and shares. We want to sell in order to grapple with the strike that lies ahead". Will the Minister be able to ask the Court to tell the stockbroker not to deal with the union?
There is also the question of supplementary benefits payable to the wives and families of strikers. That money will be used indirectly to fortify the man thinking of coming out on strike and will probably prolong the strike if it is begun. Will the Minister be able to go to the Court and ask them to make an order telling the Supplementary Benefit Commission not to advance money to the families in those circumstances? There may be a union which goes to its solicitors and says, "We should like to mortgage our head offices", or some other property. Will the Minister be able to 247 go to the Court and ask for an order prohibiting such a transaction?
We have the further question of public collections, public functions that are promoted in order to support strikes. My mind goes back to the strike of 1926, when on behalf of the miners many very respectable people organised public collections; letters were written in respectable papers like The Times soliciting subscriptions. Will the Minister be able to go to the Court and ask for an order prohibiting the organisation of such collections or other money-raising functions? As I read the Bill as it stands at the moment, the Minister could do that and the Court could do that. I sincerely hope that that is not what is in the mind of the Government. If I should be mistaken in thinking it is in their mind I hope they will consider the matter and come forward with Amendments at a later stage.
§ LORD BELSTEAD
May I say to the noble Lord, Lord Diamond, that he bowled me a slightly fast ball and I did not mean to seem discourteous in my reply. It may be worth while repeating the point made several times by my noble friend Lord Drumalbyn, that we are not talking here about the concept of sanctions against specified people. What we are talking about, as I understand it, is the desire which is to be found I should think, in all parts of the country, that where there is a dangerous emergency situation there should be the chance to hold up matters for a time to try to get a solution by arbitration or conciliation. It was with that in mind, in the context of that thought, that I gave my reply to the noble Lord, Lord Diamond. The Government felt that they were not achieving the objective they had set out to achieve and so in order to achieve it they put down these four Amendments.
I think it was in the debates yesterday —or perhaps it was the previous week—that the matter of provident funds and the use of such monies was threshed out at very great length in your Lordships' House, and I do not think I can say any more on that particular subject to the noble Lord. Lord Leatherland. But the noble Lord raised, of course, a great many other points about finance. Again as I understand the Bill, this is not going to be for Parliament to decide: it is 248 going to be for the Court. If the noble Lord would like to delve any further into that matter, we have the Report stage ahead of us and he can table Amendments.
§ LORD LEATHERLAND
I know it is not for Parliament to decide, and therefore I have raised it in Parliament long before it gets to the Court. I think it would be disastrous if applications like that were to go to the Court, and therefore I hope that the Minister will look at it again.
§ LORD BERNSTEIN
Do I take it that under the Bill as it now stands the Industrial Court will have power to apply an injunction against the selling of securities or the borrowing of money in the legitimate operation of a trade union?
§ LORD DRUMALBYN
Anything in the way of a commercial transaction of course would not be covered here. If the noble Lord looks at Clause 134(3) he will see at whom the orders are likely to be directed. In the main it will be, in the case of a strike, the persons appearing to the Secretary of State to be responsible for "calling, organising. procuring or financing the strike". In other words. normally it will be the trade union. If it is irregular action, then it may be persons or some body other than a trade union. I was using "irregular action" not in the technical sense, as in the Bill. In the case of a lock-out, it will be the employer, or the employers' association. It is as simple as that. It certainly cannot go as far as the noble Lord suggests.
§ LORD BERNSTEIN
It is not quite equal. A large industrial organisation might have more funds in its bank than a trade union, so that it would not be comparable in the way the noble Lord is suggesting. Where in the Bill does it say that the Industrial Court would have the same powers over a commercial company—not an employers' organisation, but an employer—in the same way that they have over a trade union?
§ LORD DRUMALBYN
It says:where it relates to a lock-out, shall specify the persons … appearing to the Secretary of State to be responsible for instituting, carrying on, organising, procuring or financing the lock-out …This means the employer or the employers' association.
§ LORD LEATHERLAND
I am afraid that the noble Lord, Lord Drumalbyn, has not answered the point which I raised. He has said that the Court's attention would be directed to certain people who would be named. It may very well be that the Minister in his letter to the Court, would not name the bank and would not name the stockbroker. He certainly would name the general secretary of the union, and the union as a corporate body. One of the instructions that the Court might lay down in its order is that this particular union, having £2 million in stocks and shares, shall be prohibited from cashing those stocks and shares in order to fight the strike. That is the kind of point I am getting at. It may prohibit the union from going to the bank and saying, "We should like an overdraft of a million pounds or so for the next two or three months." Similarly, the union might be inhibited under an order of the Court, on the application of the Minister, from raising money in many other ways to conduct a strike.
§ LORD SHINWELL
May I ask a question on a somewhat similar point, because I understand we are dealing with a group of Amendments? When I look at Amendment No. 277L, which refers to a lock-out, I read that an order relating to a lock-out is not dissimilar to an order relating to a proposed strike. I read towards the end of the Amendment,of this section shall institute, carry on, authorise, organise or finance a lock-out, …What is meant by financing a lock-out? I can understand what is meant by preparing to finance a strike, but what is meant by financing a lock-out? Would the noble Lord be kind enough to define what a lock-out is? What does it actually mean? It is possible to understand this, because we have had lock-outs in the history of industry in this country on several occasions, but I cannot follow what is meant by financing a lock-out. I think we ought to understand the meaning of this proposed Amendment.
§ LORD DONOVAN
May I say one word from a purely neutral aspect? I refer to the analogy of unemployment benefit under the National Insurance Acts. One of the disqualifications from receiving unemployment benefit arises when someone is thrown out of work through someone else's 250 strike: they are not entitled to unemployment benefit if they are financing the strike. Those Acts have been consistently operated on the theory that if any one of those persons so thrown out of work belongs to the union which is organising the strike, and is paying his current subscriptions, he is thereby financing the strike. We recommended in our Report that that theory should cease to be practised. I understand that the Government have decided not to implement that recommendation. I also have reason to believe that the Chief Insurance Commissioner either has decided, or is about to decide, a case on the question whether merely paying your subscriptions to the union which is running the strike is financing the strike. What decision has been come to, or will be come to, I do not know, but I think this goes to show that the noble Lord, Lord Leatherland, has raised not only an important question but a difficult question. Those matters to which I have referred may be of some assistance to the noble Lord if he is going to consider this matter on Report.
§ 6.27 p.m.
§ LORD DRUMALBYN
I am grateful to the noble and learned Lord. We will certainly look at the point. I would just suggest to him that the numbers of people who can be specified in an order are undoubtedly limited under Clause 134(3) and again Clause 135(2), which says,Any such order shall specify—(b) the persons who are to be bound by the order, …It is undoubtedly the intention of the Government that the persons to be bound by the order are primarily, if it is a strike, the trade union itself—we shall come to the Amendments concerned before very long—because anybody acting within the scope of his authority will then be covered there. In the case of an unofficial strike, then of course it would be particular persons, but it would be the strike leaders, the leaders of the unofficial strike. To that extent I think that his fears that this net would be cast very wide are perhaps not wholly well founded.
In the light of what I have just said, I do not think that the points that other noble Lords have made have any very great substance. So far as a lock-out is 251 concerned, the noble Lord will find the definition of "lock-out" in the definition clause, Clause 158. Who actually finances a strike from an employer's point of view must be a question of fact, and I am afraid I must just leave it there.
§ LORD SHINWELL
Is that a complete reply? I accept what the noble Lord says about the definition of a lockout, but let us assume that one of a group of employers decides to institute a lock-out for some reason or other, which may be quite a valid reason, but then, because he is well aware that this may involve him in financial difficulties because it means a loss of production, he goes to his bankers and informs them of the projected loss that is likely to be sustained, and asks for assurances about an overdraft. Does that mean that the Minister can make an order to the bankers preventing any assurances about finance in order to prevent any loss that is likely to be sustained? I am merely raising the point because it is necessary to understand the purpose and meaning of the Amendment—that is all.
§ LORD LEATHERLAND
The noble Lord's latest reply seems to indicate that, when the Minister applied to the Court for an order against somebody who was thinking of a strike, that would be against certain persons. He said that it would be against a limited number of persons, and that it would be the officers of the union or the leaders of an unofficial strike. If I may refer to Clause 134(3), the word "persons" is very strictly defined by the words in brackets which state:(whether they are organisations of workers, officials of such organisations or other persons)So that when the Minister asks the Court to rule against a certain union, he is not only asking the Court to rule against the general secretary, the president, and the executive of that union, but also against the hundreds of thousands of members of that union.
§ LORD STOW HILL
In view of what has been said, may I intervene shortly? It is important to try to get this right. The question that has been asked is: who are the persons who can be specified in the application? In order to find that out, one looks first at Clause 134(3)(a). There one finds certain persons set out. 252 Having done that, one then has to look at Clause 135(3)(a) and (b), and one finds a whole lot of people taken out of the previous paragraph. The question is: who has been left in? I should be grateful if the Minister would be so kind as to see whether this is the position.
First, if you look at subsection (3) of Clause 134, you find that the notice mayspecify the persons (whether they are organisations of workers, officials of such organisations or other persons)"."Person", I suppose, includes an incorporated body and therefore there would be included in that category of people: first, unions who are registered under this Bill and who have therefore become corporate entities; secondly, unregistered unions who are not corporate entities but who are still aggregates of individuals; and,thirdly, officials of both registered and unregistered unions. That is where subsection (3) of Clause 134 leaves the matter.
Then one looks at paragraph (a) subsection (3) of Clause 135 to see who has been taken out. So far as I can make out, the following people are taken out: first, everybody—members of both registered and unregistered unions—who has no other responsibility for the strike except that he is included among the strikers. That is the first category, and it would take out an enormous number of people. It would take out all the members of the registered and unregistered unions of whom it could be predicated that their only participation in the strike is that they are strikers. Then one looks at paragraph (b) and one finds a number of other people taken out; there you find that everybody is taken out except somebody who has a responsibility beyond his responsibility as an official. You take out all officials if their sole responsibility in the strike is as such officials.
Then one proceeds to see what is meant by an "official". I always thought I understood what an official of a union was, until I began to look at the definition that one finds at page 177 of the Bill, which is really an extremely wide definition. "Official" is there described in the following terms:' official ', in relation to an organisation of workers or an organisation of employers, means any person who is an officer of the organisation or of a branch …".That is what one ordinarily understands as an official—a regional organiser or 253 somebody of that sort. But then the definition goes on and becomes greatly widened. It states:… or who (not being such an oficer) is a person elected or appointed in accordance with the rules of the organisation to be a representative of its members or of some of them, including (in the case of an organisation of workers) any person so elected or appointed who is an employee of the same employer as the members, or one or more of the members, whom he is to represent";Does that include the president, the general secretary, and the national executive committee'? Prima facie, I should have thought that all of those people came within that definition. If that is right, and one looks back at subsection (3) of Clause 135 in relation to an official strike, all those people will presumably come out. None of them can be served with a notice, as I read the subsection. The only categories of persons who can be served with a notice are: first, the officials of an unregistered union—because the only officials who are taken out are officials of a registered trade union, so that the officials of an unregistered union are left in—and, secondly, persons who have taken part in a strike, but who are not officials and who have some responsibility for it other than merely being strikers.
It is very important to know exactly who are the people against whom an order can be made, because an order can only be made against those who are specified in the notice. It seems to me that they would be officials of an unregistered union—not officials of a registered union—and members of a registered or of an unregistered union whose participation in the strike went beyond simply being a striker; and, also, the official registered union itself, because that would be a person; it is an incorporated body. I hope I have understood correctly, but I should like confirmation from the Minister because it is very important when one is seeing what is the effect of this clause.
§ 6.37 p.m.
§ LORD DRUMALBYN
It is a little difficult to follow exactly what the noble Lord said, and I am afraid I shall have to say to him that I must look at what he said to see whether he is right. But my impression is that, in the main, he 254 was right. Trade unions as such will be named and, as I said before, it will not be necessary to name the general secretary or any of the officers or officials acting within the scope of their authority. It might be that one would name an official who was not acting within the scope of his authority, and who was continuing to foment a strike after the union had ceased to do so. He might be named and might be one of the people to be added. Secondly, there are the organisations of workers that are unregistered. There, as the noble Lord said, it will be those who are leading the strike—presumably, the officers or officials—and any other persons who might come in from outside and who are not connected with the strike.
But I am not quite certain that the noble Lord and I agree on the interpretation of paragraph (b) of subsection (3) of Clause 135. That states that those excluded shall not include any person whohas no responsibility for calling, organising, procuring or financing the strike or other action in question, or for threatening to do so, except in his capacity as an official of a trade unionAll those are taken out. So that all who take part except those who are leading a strike are taken out. That is the general effect.
§ LORD LEATHERLAND
I am grateful to the noble Lord for having explained the situation and for narrowing the field of people who might be named. But is there not another category of people who might be named? Let us imagine that there is a strike at Dagenham—which does not require very much imagination. A shop steward is holding forth to a crowd of a thousand workers at the factory gates. Let us imagine that, at the end of his inflammatory remarks, he says, "Hands up all those who want to strike" and 998 hands go up. Two hands do not go up. Those two men are obviously excluded from liability under the terms of this clause. But it seems to me, as those 998 people have instructed their leaders to call a strike, that that is a very positive act. It looks to me as though Lord Drumalbyn's little pack of guilty people will have to be enlarged to cover that vast concourse.
§ LORD BERNSTEIN
May I ask one more question? Whatever may be the Government's intention, I think they will wish to give in the Bill the appearance of equality. Take Ihe case of two factories in any one town doing a similar job. In one factory there is a strike, and the union have £200,000 in their account. There could be an injunction to restrain them from using that money. In the other factory there is a lock-out, and the owners of that factory have £200,000 in their bank account. They can use that £200,000 in cash for their outgoings. That surely cannot be equality. That surely cannot be the intention of the Government, if they wish for equality.
It is always difficult to get exact equality in the case of people starting from different circumstances. I would only say to the noble Lord that the object is to get as close to equality as the circumstances permit, with the object of achieving a settlement. But perhaps I ought to say, more generally, that noble Lords, quite rightly —I do not complain about it—are thinking all the lime in terms of the order being broken. Our expectation and hope is that an order of this kind, which is made in the public interest, will be adhered to, and so I hope that only in the most exceptional circumstances will the kind of difficulties which noble Lords have in mind ever arise; namely, the kind of difficulties where individuals who are specified in an order fail to comply with the order and some kind of disciplinary action has to be taken.
§ 6.42 p.m.
§ LORD GARDINER
Without wishing to prolong the discussion, may I say that I hope the Government will consider the points which have been put forward, and particularly this difficult question of financing a strike. The noble and learned Lord, Lord Donovan, has reminded me that I once appeared for a man who was not on strike. It was partly a demarcation dispute within a union, and the object of the strike was because certain men wanted certain kinds of work. If they had got that kind of work there would have been less work for my client, so he was naturally against the strike and he voted against it. He was thrown out of work by the strike, and was denied 256 unemployment pay, simply because he was naturally, as a member of the union, subscribing to the union, and it has been held by the court, as the noble and learned Lord has said, that if you are a member of a union which is paying out strike pay you are financing the strike and are therefore not entitled to unemployment pay, although you yourself were entirely against the strike.
It has to be remembered that this Bill will, I suppose, be construed in the light of the existing law as to what financing a strike means—and this is a point which I should have thought deserved serious consideration. My recollection is that the Government of which I was a member was going to deal with this point in accordance with the recommendation of the Commission of which the noble and learned Lord was Chairman, and I understand that this Government are not going to. So this particular thing, which is a plain piece of injustice, is apparently to go on. I think that the whole concept of what is meant by "financing a strike" needs consideration, and when one comes to "financing a lock-out" I find that even more difficult to understand. I suspect that the word "financing", when we come to a lockout, is simply there so that in the Bill it may appear that, word for word, the employers are being treated the same as the unions.
§ LORD DIAMOND
I was about to ge up twice on the same point and I an happy to say that the words were taker out of my mouth by both the noble and learned Lord, Lord Donovan, and my noble and learned friend Lord Gardiner; therefore I feel in unusually good company. I am returning to what the noble Lord, Lord Belstead, said. I think that on this very point of financing he said to my noble friend Lord Leatherland, who I agree has raised a most important point, that if this subject was going to be raised he hoped it would be raised at Report stage. I want first to make a preliminary comment: that the only way in which your Lordships' House and this Committee can function satisfactorily is for the ground to be covered fully on Committee stage—for matters to be pointed out and for them to be polished on Report stage. Therefore it is necessary to know the Government's view as far as possible on Committee stage.
257 I am therefore asking the Government now whether they can help us a little more on this question of financing. The ground has been very largely cleared by what the two noble and learned Lords to whom I have already referred have said. I supplement it by saying that I am a person who goes round raising money for good causes, as I conceive them to be, and I have raised money for a number of political and semi-political causes as well as charitable ones. It may well be that in the future I shall wish to raise money to help the continuation of a strike in support of a principle which I hold dear and which the strikers hold dear.
Let us suppose that that is the case. Not being a member of the union and not being an official of the union, I should not, I suggest, be excluded by any of the exclusions referred to in Clause 135, and should therefore be one of the other persons referred to in Clause 134(3)(a) who is responsible for financing a strike. That would be my intention: that I should be responsible for financing it and would be going to try to collect a great deal of money from your Lordships, for example, on all sides of the House because I thought the cause was dear and proper to be supported. Now am I a person who can be ordered by the Secretary of State to desist; and, if so, how far does this order go? How many other persons, not being members of the union— be they financiers, be they bank managers, be they mortgage brokers, stockbrokers or anything of the like—who would wish to facilitate the strike by providing money for it, can be stopped by the Court from doing so? I should be greatly helped if the Government could tell us now how we stand, so that we can consider their answer in order to enable careful thought to be given at Report stage to any Amendment that might be appropriate.
§ 6.48 p.m.
§ LORD HANKEY
I think perhaps the point has come when something might be said from these Benches on this subject, because it seems to me, with all humility, that we are rather getting away from the original point. We are going along working out who is going to be restrained and who will not be restrained. But I must say: do not let us forget that 258 we are faced in these clauses with a situation where a major national emergency is at hand. I hope that a great many people will be restrained. I do not like the Tweedledum and Tweedledee situation that we have in industry. I think that both sides should be restrained, and I hope that during the 60 days, or the period up to 60 days, when strikes are at any rate postponed we shall do as much as we can to stop the parties concerned whetting their knives and getting ready. If they have at the end of that period to start again with their financing, so much the better. We then have a little more time at our disposal to see that neither side of industry is too ready to bash the other.
Personally, speaking as a diplomat, I have always thought that force was a remarkably poor way to settle things. It never settles anything on its merits, and I really think that in the years we live in we ought to find a better way to do this; and if we can give ourselves a little more time for the conciliation officers to get busy, to postpone the moment when the thundercloud breaks over Tweedledum and Tweedledee at the end of the period, so much the better.
Finally, I should like to say—and I do so with some apology—that I find these clauses a little obscure, with the exceptions to negative statements. I am not clear whether the actual officials and shop stewards of a registered trade union are or are not to be prevented by the Industrial Court from sharpening their knives. I think that they ought to be, whether they are officials of trade unions or not. Similarly, I believe that people in an employers' association in the circumstances of an impending national emergency ought also to be prevented. I hope that the exclusions on the employers' side will be just as rare as those on the other side. When the Government reconsider these clauses I hope they will make sure that they really are able to work as effectively as possible in holding off the thunder clouds.
§ LORD DRUMALBYN
I welcome the intervention of the noble Lord to bring us back to the realities of the situation. So far as the exclusions on the employers' side are concerned, the powers to prevent the employer locking out are just the 259 same, but the circumstances are not exactly similar. That is why they have been put into a separate clause. It is really rather extraordinary that we have had this long debate on what was virtually, as I think my noble friend supposed when introducing it, a purely drafting series of Amendments. However we are no doubt wiser after it.
On the subject of financing, the noble Lord is perfectly right to ask us exactly what we mean by "financing". I think I am also entitled to say that I should like to consider 'what is the meaning of the word in the light of the comments from the noble and learned Lord, Lord Gardiner, and the noble Lords, Lord Stow Hill and Lord Diamond. I ought to add that this is very much in line with what has just been said: that if anybody deliberately sets out to defeat an order of the Court I do not think he ought to expect very much leniency from the Court. I think it would be possible to add names to those specified in the original order if it transpired that there were other people—for some might have obeyed the order and some might not have done so—whose actions are frustrating the effectiveness of the order. Their names could be added to the order. With that explanation, I should like to have a further look at the word "financing".
§ LORD DIAMOND
I take it that the noble Lord was going on to add that he would propose at the earliest possible convenience to write to those who have raised these matters so that consideration can be given to them well before Report stage. It is conceivable that over the next three months we may finish the Committee stage of the Bill and therefore the time may be approaching when one has to consider carefully what Amendments are appropriate for Report. It would be a matter of convenience and courtesy if the noble Lord could give an answer prior to the Report stage.
§ LORD DRUMALBYN: Yes, willingly.
Page 98, line 30. leave out (" (as the case may be)").—(Lord Belstead.)
Page 98, line 34, leave out from ("so") to end of line 36.—(Lord Belstead.)
§ LORD BELSTEAD: I beg to move Amendment No. 277L.
§ Amendment moved—
Page 98, line 39, at end insert—
(" ( ) An order under this section made on an application relating to a lock-out shall be an order directing that, during the period for which the order remains in force, no person specified in the order in accordance with paragraph (b) of subsection (2) of this section shall institute, carry on, authorise, organise or finance a lock-out, or threaten to do so, within the area of employment specified in the order in accordance with paragraph (a) of that subsection or any part of that area ").—(Lord Belstead.)
LORD BELSTEAD moved Amendment No. 278:
Page 99, line 2, leave out ("any instructions issued by") and insert ("or securing the withdrawal of any instructions issued by or on behalf of").
§ The noble Lord said: I beg to move Amendment No. 278. It is the intention of the Government that not only should those specified in an order have to withdraw any instructions previously given to their members involved in an industrial dispute, but also that steps should be taken to ensure that these instructions, whether issued by the persons specified or on their behalf by other persons who may not be specified in the order, are actually withdrawn. The responsibility for ensuring withdrawal is thus deliberately placed on the persons specified in the order. If it were necessary for the persons or organisations specified in the order merely to issue instructions cancelling previous advice without any obligation to ensure that any instructions were acted upon, the likelihood of industrial action being deferred would be reduced and the possibility of evasion of the terms of an order by the persons specified would be increased. We believe that withdrawal, and action taken to ensure withdrawal, of instructions issued either by the persons named in an order or on their behalf must be a prerequisite for the deferment of industrial action causing an emergency situation.261
§ This is what the Amendment seeks to ensure. This applies particularly in the situation where instructions to take industrial action have been given to and passed on by an authorised union official acting on behalf of a trade union and therefore exempted under Clause 135(3). The Amendment will make it the responsibility of organisations specified in the restraint order to take all steps specified in the order to ensure their officials withdraw any previous instructions to take the industrial action now restrained by the order. That is the objective in view.
§ LORD DRUMALBYN
It may now be a convenient moment for us to break. I beg to move that the House do now resume.