INDUSTRIAL RELATIONS BILL

HL Deb 09 June 1971 vol 320 cc282-381

8.2 p.m.

House again in Committee.

On Question, Whether Clause 135, as amended, shall stand part of the Bill?

LORD CHAMPION

We have to a great extent discussed this clause on Amendment 277F and the Government Amendments. I must admit that I thought the discussion on the Amendments ranged rather wide, but I have no fault to find with that. But quite clearly it relieves me of any responsibility of putting, on the Question, That the clause shall stand part?, the points I had in mind which have been adequately covered on the Amendments that we have dealt with. Some of the points I wished to put related to the words "or finance", but they have been so much better deployed by my noble friends—in fact very much better deployed than I could have hoped to deploy them myself. That applies also to some extent to the meaning of the exclusion of persons under paragraphs (a) and (b) of subsection (3). But I should like to put a question on the exclusions.

As I understand it, under that subsection, while orders can be made under the terms of Clause 134 against organisations of workers, the protection provided for under subsection (3) of this clause applies only to officials of a trade union, which presumably means a registered organisation of workers. As I understand it, this will mean that officers and shop stewards of an unregistered trade union may be subjected to orders under this clause and to the penalties if they contravene them. I shall be grateful if the noble Lord will tell me whether I am correct in this supposition or not. Even if I am not, I shall not be unduly abashed because, quite clearly, better minds than mine have applied themselves to this Bill and have not been wholly satisfied with some of the things they have read or some of the answers they have received.

The discretion which the Court may exercise is very wide indeed. If we take the phrase in paragraph (a) of subsection (2) "the area of employment", while the Secretary of State must in his application specify the persons against whom the order is made, the area of employment is to be determined in the course of the proceedings before the Court without any previous commitment on the part of the Secretary of State. It seems to me that this is wholly within the purview of the Court itself and the Secretary of State will not have to commit himself as to that area before he submits his application. I am not too sure about that, but I hope the noble Lord will be able to satisfy me on the point because there is some importance in this definition of "the area of employment" which arises from the fact that the Court may issue prohibitions on a narrow or on a very wide scope. The Court may, for example, it seems to me, make its order applicable to the maintenance of a full or only an emergency service. Is this so? I should very much like to know.

Everything that was said on the Amendment convinces me that the procedure in Clauses 134 and 135 will produce no way to secure reasonable industrial relations in this country. Altogether, this clause and the preceding clause introduce factors into our industrial law wholly out of keeping with what has grown up and worked reasonably well in an area full of potential difficulties, which this certainly is. I do not like the clause; I do not like the clause that preceded it. But, before asking my noble friends to divide upon it, I should much like to hear the answers to the questions that I have put, and answers to the questions which I believe my noble friend Lord Stow Hill wishes to put on this clause.

LORD DRUMALBYN

I gather that the noble Lord has already dealt adequately with his noble friend's points on this clause. The noble Lord. Lord Champion, with his customary modesty, has suggested that others have dealt with this question better than he has, but he has put his points extremely clearly, as usual. My understanding so far as organisations of workers are concerned is the same as his; namely, that particular officials of organisations of workers can be specified in the order; and of course so long as they comply with the order they have no trouble. As to the area of employment, no doubt the Secretary of State will have to indicate to the Court what the area of employment is, but he may not be able to do it with sufficient accuracy, and in this the Court will have the assistance of the Commission on Industrial Relations. It can call on them if it needs to do so.

I did not quite understand the point about full or emergency services. I did not quite understand the noble Lord's question. Perhaps the noble Lord would like me to write to him on that point when I pick it up.

LORD CHAMPION

The point was merely this. Clearly, "the area of employment being left to the Court will enable them to decide the extent of the order, when made: whether there shall be a limited or a very full emergency service. Is that clear to the noble Lord? It would be possible for the Court to order in such a way that only a part of the service needs to be maintained in order to avoid what is feared, or would be feared, under Clause 134. The very fact that they may themselves decide the area of employment would enable them to decide just what the extent of the service should be. Is that reasonably clear to the noble Lord? I hope it is. It is fairly clear to me.

LORD DRUMALBYN

I am not quite certain that the noble Lord is entirely with us on this point. We are talking of emergency procedures and I think he is still confusing the case somewhat with the other legislation. the Emergency Powers Act. The definitions of the areas must to a large extent follow the persons, officials and such organisations as are responsible for calling or procuring or financing the strike. As the noble Lord will see from subsection (2)(a), the areas concerned may be one or more industries … or one or more undertakings or parts of undertakings … or one or more descriptions of workers so specified. This is what is meant by the areas. From what I gathered from his question I think the noble Lord was really asking how many people have to be got back to work in order to supply the services that are basic. I do not think that is really the relevant question; the relevant question is how to get people back in the works so that normal work can be restored during the period when a settlement is being sought.

LORD CHAMPION

Yes, but an order has to be made, and there should be stipulated in the order the extent of the employment to be covered in that order. That is what I feel is fair in the question that I was asking. What I really wanted to know, and rather suggested, was that the importance of the area of employment to be defined by the Court would actually cover this very point, and they

Resolved in the affirmative, and clause 135, as amended, agreed to accordingly.

might then decide, when deciding the area of employment, the extent to which the order shall in fact spread. That is what I was seeking here. If the noble Lord feels that I have not been clear enough on it to satisfy him, and I am not particularly clear about the answer that he has given, perhaps we can have a word about it between now and the Report stage. There is certainly a point here that I would like to have elucidated before we part with this Bill altogether.

LORD DRUMALBYN

Broadly speaking, the area to be covered is the area affected by the dispute.

8.14 p.m.

On Question, Whether Clause 135. as amended, shall stand part of the Bill?

Their Lordships divided: Contents, 72; Not-contents, 31.

CONTENTS
Aberdare, L.	Falkland, V.	Nugent of Guildford, L.
Albemarle, E.	Ferrers, E.	Oakshott, L.
Alport, L.	Ferrier, L.	O'Neill of the Maine, L.
Amherst of Hackney, L.	Gisborough, L.	Rankeillour, L.
Auckland, L.	Goschen, V.	Reading, M.
Balerno, L.	Gray, L.	Redmayne, L.
Balfour, E.	Greenway, L.	Rochdale, V.
Balfour of Inchrye, L.	Grenfell, L.	St. Aldwyn, E.
Barrington, V.	Grimston of Westbury, L.	St. Helens, L.
Beauchamp, E.	Hailsham of Saint Marylebone, L. (L. Chancellor.)	St. Just, L.
Belhaven and Stenton, L.		Sandford, L.
Belstead, L.	Hankey, L.	Sandys, L.
Berkeley, Bs.	Hatherton, L.	Sempill, Ly
Bolton, L.	Headfort, M.	Skelmersdale, L.
Boston, L.	Henley, L.	Somers, L.
Buccleuch and Queensberry, D.	Hives, L.	Strathcarron, L.
Byers, L.	Inglewood, L.	Strathclyde, L.
Conesford, L.	Kemsley, V.	Thomas, L.
Cork and Orrery, E.	Latymer, L.	Tweedsmuir of Belhelvie, Bs.
Craigavon, V.	Mar, E.	Vivian, L.
Crawshaw, L.	Milverton, L.	Wade, L.
Cullen of Ashbourne, L.	Monck, V.	Wigram, L.
Denham, L. [Teller.]	Mowbray and Stourton, L.[Teller.]	Windlesham, L.
Drumalbyn, L.		Wolverton, L.
Dundee, E.	Netherthorpe, L.

NOT-CONTENTS
Addison, V.	Douglas of Barloch, L.	Raglan, L.
Archibald, L.	Gaitskell, Bs.	Ritchie-Calder, L.
Bernstein, L.	Gardiner, L.	Segal, L.
Beswick, L.	Hilton of Upton, L.	Slater, L.
Blackett, L.	Hoy, L.	Stonham, L.
Blyton, L.	Janner, L.	Stow Hill, L.
Buckinghamshire, E.	Lloyd of Hampstead, L.	Strabolgi, L.[Teller.]
Champion, L.	Milner of Leeds, L.[Teller.]	Taylor of Mansfield, L.
Collison, L.	Phillips, Bs.	Wells-Pestell, L.
Cooper of Stockton Heath, L.	Platt, L.	Wynne-Jones, L.
Diamond, L.	Popplewell, L.

Clause 136 [Supplementary provisions where order made under s. 135]:

8.22 p.m.

LORD BELSTEAD moved Amendment No. 278D: Page 99, line 23. leave out from ("to") to ("the") in line 24.

The noble Lord said: With the agreement of the Committee I think with this Amendment we might also discuss Amendments 278E and 278F. The essential purpose of these Amendments is to harmonise the procedure for the making of a supplementary order more closely with that of the principal order to which the supplementary order relates. The purpose of this clause, to which this Amendment relates, is to enable the Secretary of State to apply to the Court for a supplementary order to specify additional people not specified by the principal order and to apply the provisions of the principal order to them, restraining them from promoting any form of industrial action to which the principal order applies as causing or being likely to cause a serious emergency.

Thus, if a trade union and its officials have, for instance, been restrained by the principal order from organising a strike likely to lead to an emergency, a supplementary order can be made applying this restraint to a person or a group of people not specified in the principal order who, despite any union instructions to the contrary, continue to organise industrial action. The real purpose of these Amendments is to make it clear that persons who are to be specified in a supplementary order have the same rights to make representations to the Court as those in the principal order, and that the exclusions from specification laid down in Clause 135(3) apply to them.

The effect of the Amendments is that the Secretary of State must specify in an application to the Court the persons against whom he wishes a supplementary order to be made, and those people are then to be joined with the Secretary of State in proceedings before the Court. Those persons can then make representations, either that they have no responsibility for the industrial action in question (and must therefore be covered by Clause 135(3)(a), even though they are participating in the industrial action. Or they may claim exclusion under Clause 135(3)(b) on the grounds that their action was taken as an authorised official of a registered trade union. Or they can claim that a supplementary order cannot be made against them at all because the period of the principal order has in fact expired. These Amendments therefore make it explicit that people whom the Secretary of State wishes to be restrained by supplementary order from promoting industrial action which could continue or worsen an emergency situation have exactly the same rights as those carried by the principal order to make representations to the Court as parties to the proceedings. We feel that is only natural justice. On those grounds I hope that the Committee will approve of this group of Amendments. I beg to move.

On Question, Amendment agreed to.

LORD BELSTEAD

I beg to move Amendment No. 278E:

Amendment moved— Page 99, line 31, leave out from (" the") to end of line 34 and insert (" Secretary of State may make an application to the Industrial Court, specifying those persons and applying for the principal order to be extended to them: and the persons so specified shall, together with the Secretary of State, be the parties to any proceedings on that application.

(3A) Subject to the next following subsection, on any application made by the Secretary of State under subsection (3) of this section the Industrial Court shall make an order specifying the persons who were specified in the application and directing that, in relation to any time after the order under this subsection takes effect, the principal order, while it remains in force, shall have effect as if those persons had been included among the persons specified in the principal order in accordance with section 135(2)(b) of this Act. (3B) The Industrial Court shall not make an order under subsection (3A) of this section after the end of the period specified in the principal order, and, where it makes an order under that subsection, shall not include in it any person required to be excluded in accordance with section 135(3) of this Act").—(Lord Belstead.)

On Question, Amendment agreed to.

LORD BELSTEAD

I beg to move Amendment No. 278F:

Amendment moved— Page 99, line 36, leave out (" (3)") and insert ("(3A)").—(Lord Belstead.)

On Question, Amendment agreed to.

LORD STOW HILL moved Amendment No. 278L: Page 99, line 39, leave out (" 126(5)") and insert (" 135(5)").

The noble Lord said: I think this is a plain slip, and I believe it has now been covered by a corrigendum. Whether it is consistent with the rules of your Lordships' House to correct the text of a Bill approved by another place by a corrigendum addition I do not know. The context of my Amendment deals with the erroneous numbering, and I do not want to take any time about it. I do not believe that Ministers would be committing a very serious contempt of the proceedings of this House if they did seek to correct an obvious slip by corrigendum. But perhaps the simplest way out of the difficulty, if I am right about this matter, is for the Government to say that they accept the Amendment. I beg to move.

LORD DRUMALBYN

I am grateful to the noble Lord. I willingly adopt the simplest way and accept the Amendment.

On Question, Amendment agreed to.

On Question, Whether Clause 136, as amended, shall stand part of the Bill?

LORD DIAMOND

I do not want to delay the Committee on this clause, because we touched on it when we were discussing the previous clause. I merely wanted to ask the noble Lord, Lord Drumalbyn, who was good enough to say that he would write to those of us who raised questions regarding the persons who might be affected and the extent to which persons might be affected who were financing a strike, whether he would be good enough to take into account Clause 136 as amended. If it is easier for him to specify those persons who could not be sent to goal, that would be just as good. Perhaps he would either let us know who would be affected and could be sent to gaol or who would not be affected and could not be. In either case, would he be good enough to include Clause 136 as amended?

LORD DRUMALBYN

I shall be glad to do so.

Clause 136, as amended, agreed to.

Clause 137 [Application to Industrial Court for order for ballot relating to industrial action]:

8.30 p.m.

LORD DRUMALBYN moved Amendment No. 278G:

Page 100, line 34, at end insert— (2A) Any application under this section shall specify the persons (whether they are organisations of workers, officials of such organisations or other persons) appearing to the Secretary of State to be responsible for calling organising, procuring or financing the strike or other action in question, or for a threat to do so; and the persons specified in the application in accordance with this subsection shall, together with the Secretary of State, be the parties to any proceedings on that application.

The noble Lord said: I beg to move Amendment No. 278G. Your Lordships will have noted that under Clause 134 the application made by the Secretary of State has clearly to identify those persons against whom the Secretary of State seeks an order. Persons thus become parties to proceedings before the Court, and have every opportunity to hear and rebut the case presented to the Court by the Secretary of State. The purpose of this Amendment is to make similar provision in relation to an application for a strike ballot under Clause 137. As at present drafted, Clause 137 does not, in terms, require the Secretary of State to specify the parties who may be bound by ballot order, although he is, of course, required under subsection (3), so far as is practicable to consult the employer or employees, and the union or unions, concerned in the dispute. It seems only right. and in accord with natural justice. that Clause 137 should incorporate the additional safeguard which this Amendment provides. I therefore commend it to your Lordships. I beg to move.

LORD CHAMPION

This is a matter upon which, over the last weekend, I prepared a number of considerable broadsides that I was going to fire at the noble Lord, but he sneaked up on me and spiked my guns. This Amendment was put down very late. I did not see it until yesterday morning, as indeed is the case with a number of other Amendments which have been put down, some of a very important character. I shall not complain too much about that because I know what can happen within a Ministry, but it is difficult for anyone who has not the advantage of the help of a considerable staff to follow things when they are placed on the Marshalled List as late as this one was. It appeared there yesterday morning, and indeed a later and massive sort of Amendment that we shall deal with subsequently was placed there at the same time.

This is a sensible addition. It brings into Clause 137 something which is already in Clause 134, and, as such, I have not the slightest objection to it. As I say, my only objection is to the fact that the Amendment went down so late, so that I spent much time over the weekend which might have been used to better advantage to myself.

LORD SLATER

May I ask a question in regard to this Amendment? The Amendment says, procuring or financing the strike or other action in question,… The noble Lord will be aware, as will other noble Lords, that where there is, or has been, a strike, finances in support of those engaged in that strike have not just come into the strike fund from people within the borders of this country, but also from outside. What is the position of the Government in respect to that kind of support? The reason I ask the question is because when I paid a visit to Moscow I was reminded by Mr. Khrushchev that in the 1926 strike he had been assigned by the Dombas miners to get money and to send it to the British miners who were on strike —or what I always call a lock-out. Many people inside the industry at that time would not accept it because they said that it was "Red money", and they did not like the Communist attitude. Nevertheless, that money came into the country, and it was disbursed among the miners at that particular time. What would be the current position with regard to anything like that? I do not know whether the noble Lord is in a position to give me an answer to that question. That is something that could arise, and there will be questions asked about it inside trade union branches.

LORD DRUMALBYN

I think I would need notice of the question which the noble Lord has just asked. My first reaction is that it would be difficult to show that these people were within the jurisdiction of the court, if I understand him correctly. If I can obtain any further information I shall be glad to write to him.

I apologise for the lateness in putting down these Amendments. This is partly because of our procedure. I think they actually went down on Thursday, but of course they only permeate to the Marshalled List at a later time. I am very sorry for the hard work that the noble Lord had to do to no purpose over the weekend.

LORD TAYLOR OF MANSFIELD

Would the noble Lord enlarge on his reply to my noble friend Lord Slater? I agree with him about the details of what happened in 1926. The money was very welcome to the miners and their families, and particularly to their children. The noble Lord said it would be impossible to bring the donors of money from Russia, or any other foreign country, within the jurisdiction of the Court. Could any other action be taken to stop the money being paid for the purpose for which it was sent? Could there be, say, an embargo at the bank, or something like that?

LORD DRUMALBYN

I must say that I think we are going a little wide of this particular Amendment. May I also write to the noble Lord about that? I think we should perhaps be out of order if we were to follow that question up on this Amendment.

On Question, Amendment agreed to.

On Question, Whether Clause 137, as amended, shall stand part of the Bill?

8.37 p.m.

LORD CHAMPION

Here in this clause we have the idea of the compulsory ballot being introduced. Under this clause the Secretary of State may apply for an order requiring a ballot to be taken where there exist conditions very similar to those we have been discussing in relation to Clause 134 and Clause 135, but with the additional alternative condition, so far as the Secretary of State's assessment of the situation goes, of his doubts as to whether the workers' wishes, desires and intentions have been sufficiently taken into account before a strike or other industrial action has been decided upon. The additional consideration is that in the opinion of the Secretary of State the result of such action is likely to be seriously injurious to the livelihood of a substantial number of workers … That means that in the case of action by the Secretary of State under Clause 134, in making an application to the Court for an order under Clause 135, he could, as I see it, at the same time make an application to the Court for an order under Clause 137 requiring a ballot to be taken.

The additional condition that would have to apply in that case would be that one of his doubts is as to whether the workers concerned had been able adequately to express their wishes before the decision of the organisation of workers had been taken. The question that immediately springs to mind in that connection is, on what sort of evidence the Secretary of State acts before he arrives at the conclusion that there are reasons for doubting whether the workers have been adequately consulted. Under this clause will the Secretary of State act on the complaint of a disruptive minority which might succeed in planting a doubt in his mind? If so, it will be only just one more case or instance under the Bill of opening the door to the disruptive minority.

This is of considerable importance, for although the Secretary of State shall consult, so far as appears to him to be practicable in the circumstances, the parties to the dispute, his decision on the matter of the application arising out of his doubt as to whether the workers concerned have been adequately consulted will not fall to be questioned by the Industrial Court. It will not be up to them to ask a single question on this matter of the doubt which apparently exists in the mind of the Secretary of State, as to whether or not the workers have been adequately consulted. This is a factor to which attention will be drawn again when we come to consider Clause 138.

Altogether this clause is even wider in the conditions formulated under it than the sweeping conditions of Clause 134, for in addition to the doubt in the mind of the Minister which I have mentioned there is the additional and alternative condition that the Minister may apply for an order for a strike ballot if he is of the opinion that the effects of the industrial action are likely to be seriously injurious to the livelihood of a substantial number of persons employed in the industry. It will be seen that under the terms of subsection (1) an application may affect an unregistered trade union, but the Secretary of State will not be under any obligation under subsection (3) to try to consult such an organisation before submitting an application to the Court, as he would in the case of a registered trade union. This again is a distinction which is clearly going to add enormously to the difficulties of operation of this Bill. We have called attention to it many times in this connection.

What we really have to consider here, on the principle of the clause, is the possible efficacy of the ballot combined with the cooling-off period as a strike-stopper, as an adjunct to a greater degree of enforced democracy in unions, whether registered or unregistered. The chief consideration in the mind of the Government is clearly that the ballot will serve to check the number of strikes that occur in this country. The argument for the clause springs from the premise that if only the workers could express their wishes, and not be led by the nose by their trade union leaders, there would be everlasting peace on the industrial field. Such a belief is pathetic, and contrary to all the evidence available from the United States of America and such evidence as springs from our conditions here. Certainly, the evidence that springs from our conditions here is far from reassuring.

In paragraph 428 of the Donovan Report there appear these words: There is little justification in the available evidence for the view that workers are less likely to vote for strike action than their leaders; and findings from our workshop relations survey, already cited, confirm this. Anyone who has ever sat on the executive committee of a great trade union will be conscious of the tremendous pressures that build up behind anyone occupying that sort of position, or the position of general secretary to a trade union. Almost invariably the pressures are such that it is extremely difficult for the trade union leader to resist them. Pressures for increased wages, pressures for decreased hours, pressures for longer holidays—they all build up; and it is very seldom that the trade union leader has to lead the trade union members by the nose in order to get them to agree to action on the industrial field, whether strike action or action of some other kind. That simply does not happen.

I was on the executive of a trade union during the war years when, clearly, conditions were such that we did not want to see any disruption occurring which might interfere with our effort in the war. But I remember the tremendous difficulty we had, even then, to resist the pressures which from time to time built up behind us. It is true that in the main we did resist them, and that was because we did not wish to exploit the situation of tremendous power in which we found ourselves at that time, and we did not want to cause any difficulty when the country was fighting for its very life. What I am saying here is that it is very seldom that trade union leaders want to be in advance of those people whom they lead, but the pressures behind them are enormous at this or any other time. The written evidence submitted on this point by the Secretary of State's own Department to the Donovan Commission concludes with these words: In general, there is no sound reason for supposing that compulsory secret ballots would reduce the number of strikes. That is a conclusion of one of the sanest and most capable Departments of Labour in the world and I am rather proud of this Department of Labour, or this Department of Employment and Productivity, which happens to be ours. That is their considered view, and that was in the written evidence which was available to the Donovan Commission.

I am bound to conclude by condemning the procedure commenced in this clause, for it would tend to bring the Secretary of State into the industrial relations arena at a much too early stage of a dispute. He would be subjected to Party political pressures which would be hard to resist, even against his better judgment and against the advice of his Ministry. He would be flying in the face of all the evidence to the contrary, both here and in the United States, that it would not be practicable to use the procedure in an unofficial stoppage and dispute, and if that were attempted it would be only one more instance of unenforceable laws bringing the whole system of our laws into disrepute.

The difficulty that would arise in dealing with the unofficial stoppage which, as I understood the noble Lord, Lord Drumalbyn, this afternoon, is one of the stoppages which he fears is seriously injuring our economy, is a very strong point. I do not believe that this compulsory ballot procedure would do anything to stop an unofficial strike. The Government best serve the nation when they limit their intervention in industrial disputes to encouraging a willingness on both sides to negotiate— which, I may add, is a reason why in present circumstances such great respect is paid to the Department's conciliation officers. I do not like this clause, and I did not like Clauses 134 and 135. This clause will to some extent be unenforceable, and if an attempt is made to enforce it there will be greater trouble in industrial relations than there would have been without this Bill.

8.48 p.m.

LORD STOW HILL

I hesitate to follow when my noble friend Lord Champion, from the wealth of his great personal knowledge and experience, has deployed such an extremely formidable case, but I should like to emphasise from the point of view of the lawyer who possibly looks at this matter legalistically a few of the many points he made. First, why on earth is it necessary for the Government to be so provocative as to require the Secretary of State to consult employers' associations and registered trade unions, but not unregistered trade unions? If one is trying to find some way of bridging over difficulties between both sides of industry, why throw such a provocative ingredient into the potage as that? It is quite unnecessary. Two words added to subsection (3) would cure the trouble and their addition would, in many cases, avoid bitterness which is otherwise most probable, as my noble friend has pointed out so forcibly.

On the second point, again I speak from the point of view of a lawyer. If at the outset one looks at what has to be thought by the Minister before he can take action, one sees that it has to appear to him that there are reasons for doubting whether the workers have been adequately consulted, and so on. His view cannot be challenged. if he thinks that there are reasons for doubting, it is no good trying to say when you get before the Industrial Court that there were no such reasons. His view is supreme: it is his ipse dixit. That aspect of the matter is much the more serious, if one is trying to think again of accommodation between two opposing sides and when one bears in mind, as the noble and learned Lord and his Commission pointed out and as my noble friend has reminded us from the wealth of his experience, that in the great majority of strikes the leadership of the union do not goad their members into strike action: the impetus comes from the members themselves. When, as we know from experience widely gathered, that is the position with which the Minister will in fact have to deal, is it not asking for trouble to make his ipse dixit on the matter of law. unchallengeable? That is the second point.

The third point I wanted to make was this. My noble friend pointed out that the Secretary of State can approach the Court in one, two or three situations. One situation is where the condition described in Clause 134 is present; namely, that there is danger of injury to the State and to people's lives. That is one situation. The other is where the condition is present that the livelihood of workers may be impaired as the result of strike action. That is the second situation. The third is where there is a combination of both those situations. What I want to emphasise is that you are dealing with one of those situations in which I should have thought this clause would be particularly unworkable. That situation is the situation in which the Minister wishes to establish before the Court—and I quote from paragraph (b) of subsection (2)— that the effects of the industrial action in question on a particular industry are, or are likely to be, such as to be seriously injurious to the livelihood of a substantial number of workers employed in that industry ". Now if that condition alone is shown, without the other, that is enough to justify the Secretary of State, if he thinks there are reasons for doubting whether the wishes of the workers have been adequately taken into account, to approach the Court. He has to satisfy the Court (to quote the words of the next clause) that there are "sufficient grounds" for supposing that that condition is present. What on earth is the criterion that the Secretary of State, in the first place, and the Industrial Court, in the second place, are to impose in order to determine whether in the case of a given strike the effect on a particular industry is likely to he such as to be seriously injurious to the livelihood of a substantial number of workers? How do you test it? Can a more flabby, indeterminate formula possibly be con- ceived? And it is to the resolution of that formula, and its application to a given strike, that the unfortunate Court is in duty bound to address its endeavours.

I would ask the noble Lord, Lord Drumalbyn: how would he approach a question of that sort? Take a strike in which 5.000 workers are involved. They are under a sense of grievance. They and their leaders take the view that the particular industry or undertaking concerned could easily afford to pay them increased remuneration. Perhaps the management take an exactly contrary view. Perhaps they take the view that the wage bill which would result over the years would be too high. They may take the view that as a result they would have to reduce their programme of capital expenditure. There is a sharp, flat conflict of view between both sides. Both sides have obviously considered it and taken counsel about it. If the management's view is correct, then it may well result from the strike that over a period of time redundancies on a large scale will develop, and if that should happen I suppose it could be said that the livelihood of a substantial number of workers in that particular undertaking would be impaired.

But how is the Court to determine whether the view of the management is right or whether the view of the union and the workers employed is right? By what criteria is it to judge? What evidence is it to have? Is it to summon before it the directors? Is it to summon before it the programmers of the capital investment plan on which the company may be embarked? Is it to try to estimate the future progress of our economy —the balance of payments, and all the rest of it? I should have thought that what the Court was being called upon to do here was to undertake the resolution of a question which is so utterly indeterminate in form as really to be beyond the scope of resolution except by a parade, an almost interminable parade, of expert witnesses—expert accountants, economists and all the rest of it. That is what the Secretary of State is to be entitled to ask the Court to do. If he succeeds in getting the Court to accept the view that there are sufficient grounds for believing that the management view in that situation is right, then it makes the order.

It is not only that sort of situation. Suppose there is talk of a productivity agreement. Productivity agreements may have two results. The optimists hope that they will greatly expand the scope of the industry, and improve the condition of the workers over a period of years. Others may say that the result, and indeed the object, of a productivity agreement is to reduce the numbers of the necessary labour force, with the result that a number of workers will lose their livelihood. If that is the situation, is that within the ambit of the condition which is being postulated here? I ask again and again: how on earth is the Court to address itself to this subject?

When I said that I approached this issue rather as a lawyer than as a person versed in industrial relationships, I did so having in mind again, as I have had on a previous occasion, the position of the unfortunate Court and the Judge who presides over it, and the really distressing consequences which would ensue if the decision of the Court was misunderstood; if the consequence—and I repeat it because it is incapable of excessive repetition—was that confidence on one or both sides of industry, or by the public at large, in the completely impartial and effective administration of justice by our courts began to wane. I take the view that the information which was presented by the Donovan Commission as to the likelihood of workers' wishes not being taken into account in ordinary strikes, reinforced by the experience of Members of your Lordships' House well-versed in trade union law, in trade union history and in trade union situations, shows that in any event it is unnecessary to have this highly provocative clause. It is a dangerous clause. It is unlikely to result in the resolution of strikes, and it is likely over the years to result in an impairment of confidence in the Industrial Court. I hope that, in the circumstances, the Committee will decide that this clause ought to be excised from the Bill.

9.0 p.m.

LORD STONHAM

I should like to support what my noble friend Lord Champion said, but I want to concentrate on one aspect—I think the weakest —of this clause. This is where the Minister takes a decision, in effect, to arrange a ballot where it appears to him that a certain proportion of the workers have not been sufficiently or properly informed about the situation to enable them to form a judgment. The immediate question that occurs to me is: how does he get these opinions? On what evidence? Does he base his decision, which of course will be made in his office—he will not go down to the works and interview the workers—on what his officials tell him? They in turn will not go down to make first-hand inquiries. They, too. will have to rely on very questionable information.

For example, a strike of this kind creates a lot of public attention. Above all, it comes to the notice of the television people. It is a very simple matter for the camera team to get hold of a few people, sometimes two or three, who state their views on particular aspects of the subject. They may be asked whether they want to strike. Inevitably they say, "No". Of course they do not want to strike; nobody in his right mind wants to be deprived of his livelihood; and the worker's wife is particularly concerned about this. Or take the case of the Press reports. The Press reports usually reflect the policy of the newspaper—which almost inevitably is pro-Government and anti-strike. Such reports are selective in the extreme. The newspapers get somebody to say what suits them. Or they allege that they do. What other evidence is the Minister going to rely on if he or his officials do not go down and report, as it were, on the job—as they cannot? This seems to be the crux of the matter. As my noble friend Lord Stow Hill said, the Minister's say-so is the ipse dixit to the Industrial Court. His decision must inevitably be based on the most questionable information. It is not the kind of decision that a Minister would take in other circumstances. Therefore I feel that unless the Minister has an answer to this point, unless he can show me that my anxieties on the matter are groundless, we are right to ask for this clause to be deleted.

LORD POPPLEWELL

I should like to support my three colleagues in opposing this clause. It seems evident to me that it has been drafted by people who have very little knowledge of what takes place in industry. My noble friend Lord Stow Hill has rightly pointed out all the legal difficulties raised by the clause. My noble friend Lord Champion and I, and others with experience in dealing with this type of suggested ballot can visualise the difficulties that may arise for the Secretary of State who can apply to the Industrial Count for an order requiring a ballot to be taken. In some industries a ballot can easily be arranged; the rules of some of the unions concerned will stipulate that a ballot must be held before industrial action can take place. But there are various other organisations in which it would be very difficult to arrange for a ballot.

I feel that the Government have inserted this clause because they have accepted so much propaganda from the public media that they are convinced that the situation in industry is much more difficult and critical than it is. We have all seen on television groups of agitated people, housewives and others, expressing mixed opinions about a strike or the prospect of one. If we accept that type of thing unquestionably, then every strike that is envisaged gives power to the Secretary of State to apply to the Industrial Court for an order requiring a ballot. The significant words, as pointed out by my noble friend Lord Stow Hill are, that the effects … are, or are likely to be, such as to be seriously injurious… But every strike is injurious—particularly to the strikers; because when they lose their regular wage and go on to strike pay their livelihood is seriously injured. Therefore the Secretary of State is given complete power in every dispute that is likely to take place. If he gathers his information solely from the Press or the other media, he will use that power on every occasion. I should like to know what steps will he taken by the Minister to assess the real feeling among people who will contemplate withdrawing their labour.

There is another serious factor which I do not think is appreciated on the other side of this Chamber. Arranging a ballot to decide whether a strike should take place is calculated to create more strikes than if the matter in dispute had been left to responsible trade union leaders to negotiate. Pressure for industrial action usually comes from the shop floor level, and goes up by various stages of negotiating machinery until ultimately it arrives at the national executive, the ruling body of the union. At that stage difficulties often arise. The ruling body realises the difficulties involved and refers matters back, and pressure is built up among the rank and file. If a ballot is to take place before responsible people can arrive at any decision, I visualise that there will be more strikes than at present.

The provisions of this clause give wide scope to the Secretary of State and I do not think that is justified. It would be much better that the position should be left as it is, and that both sides of industry should meet the conciliation officers of the appropriate Ministry to assess the position. There will be difficulties over this clause, because it is possible that some trade unions will not be blackmailed " into registering, and therefore they will no longer be trade unions according to the provisions in this Bill. Some organisations whose income tax concessions on their provident funds may be in jeopardy may register, because many thousands of pounds will be involved. But other organisations may take a chance and refuse to register, and the provisions of the Bill will come into force. That seems to me an entirely wrong approach. This appears to me to be something which has been brought about by people with little or no knowledge of industrial matters. I am certain that had the opinions of many employers and the C.B.I. been canvassed completely different advice would have been given to the Government. One can only assume that this is one more effort at "bashing" the trade unions.

BARONESS GAITSKELL

This is a political clause which will prove a nightmare for lawyers and not a paradise, because they will find its provisions so difficult to deal with. It brings out the persecution mania of the Government in regard to strikes in general. The Government really believe that strikes are brought about only by a small number of "firebrands". If that view is held you do not believe that strikers ever have any grievances. It follows logically that the Government do not believe that there are any problems, and if there are no problems there are no strikes. It seems to me that this clause underlines the superficial attitude of the Government towards industrial relations. They would not bring forward rules of this sort if they looked far deeper into problems to discover what are the grievances.

THE EARL OF BALFOUR

I feel that if this Bill had been on the Statute Book the critical position of the wonderful Tyneside shipbuilding firm of Swan Hunter and Wigham Richardson might have been different. In this sort of industry a small section of a huge number of employees can bring the whole works to a standstill. No one section of an industry or the community should ever be allowed to hold the rest of that industry or the community to ransom. I feel that in many large industries, when a small section takes industrial action that affects all the other employees a cooling-off period of only 60 days might improve our economy and prevent hardship. Therefore the Secretary of State, whichever Government are in office, should have the power to take action in these clauses which cover emergency procedure. "Emergency" is the really important word here. The Secretary of State is not going to take action over any tinpot strike or any strike that is not going to create tremendous hardship or affect the health of the nation or the livelihood of a vast number of other people. I stress this to the Committee: we are talking of clauses that affect emergency procedure and nothing more.

9.15 p.m.

LORD BERNSTEIN

We have heard from this side of the House statements dealing with major points on this clause. I should like to highlight some other aspects. I would refer the Committee to the introductory Part I of the Bill, where it says The provisions of this Act shall have effect for the purpose of promoting good industrial relations in accordance with the following general principles, that is to say,— (a) the principle of collective bargaining freely and responsibly conducted; I doubt whether this clause allows that. It says at the beginning: Where it appears to the Secretary of State— (c) that there are reasons for doubting … Governments can be wrong in their doubting. Not many years ago—it affected my life—the Government of the day were wrong about their doubting of Hitler. Later, the Government of the day also affected all of us by being wrong in their doubting of Nasser. We do not know what would the Secretary of State's reasons be for doubting. I do not know how one works out in any sort of rigid terms what is a reason for doubting. No psychiatrist could help us. True, the Secretary of State may consult every employer, trade union and employers' association appearing to him to be a party to an industrial dispute. But note this: he is not required to consult an unregistered organisation. Further, even registered trade unions and registered employers' associations need not be consulted—only in so far as the Secretary of State thinks practicable in the circumstances. There is nothing in the Bill requiring him to consult the T.U.C. or the C.B.I., who might help in a case of emergency.

My questions, therefore, are these. Can the Secretary of State act on the mere reason of doubting whether a union is properly representing its members? Why does the Secretary of State have no obligation to consult the T.U.C. or even the union concerned, and if he does consult, only so far as appears to him to be practicable in the circumstances"? Should the Court be concerned with this point and only examine the matters mentioned in subsection (1) of the clause?

I find it difficult to see how all this can be reconciled with the principle of collective bargaining freely and responsibly conducted; written so bravely, or so hypocritically, in Part I of the Bill. What evidence does the Secretary of State seek before he arrives at a decision that there are reasons for doubting—gossip, newspaper talk, television commentators, what? This is another godsend—not the only one in the Bill—for a disruptive minority of which we have heard so much. I repeat that what Clause 1 of the Bill says: the principle of collective bargaining freely and responsibly conducted is the basis of this Bill. If this means anything, then I say to the Government that they have made a psychological mistake and should change this clause.

LORD TAYLOR OF MANSFIELD

This clause empowering the Secretary of State to seek powers from the Industrial Court to take a ballot is a complete innovation. I think that it is dangerous. I think it will create more difficulties and more problems than it will solve. To me, it presupposes that ballots in connection with industrial disputes have never been heard of—"Why should we not start now?" I should like to ask the indulgence of your Lordships in order to say a few words about the procedure followed during all my lifetime in the mining industry. I remember three national mining stoppages in 1912, 1921 and 1926. I would draw attention to the fact that they could not take place without a ballot of the men. Furthermore, there had to be a two-thirds majority.

I should like a little information from the Minister about subsection (3). May I read the words to your Lordships? Before making any application under this section"— that is to the Industrial Court— the Secretary of State shall "— not "may"— so far as appears to him to be practicable in the circumstances, consult every employer, trade union or employers' association appearing to him to he a party to the industrial dispute in question. What I am saying is that in my view this clause is out of touch with reality. I doubt very much, whatever the intentions of the Government may be, whether it will work. May I put this supposition to the noble Lord who is to reply: when the consultations between the employer and the trade union and the employers' association have taken place, and they have discussed the dispute or the threat of a dispute from every angle, the trade union, for example, may say to the Secretary of State "We have heard all that you have had to say but we are still convinced that the course upon which we propose to embark is completely and fully justified." The Secretary of State may reply "All right: if that is your attitude we cannot finalise this situation. I am going to the Industrial Court for an order for the taking of a ballot." The employer or the trade union, or both, may also say" Our co-operation on the taking of a ballot will not be forthcoming."

Suppose also that the trade union says to its members, "We are going to embark upon a propaganda campaign because what we are asking for is completely justified, and our campaign will be to advise all our members not to take part in the ballot." Then suppose that that campaign is successful, and the members of the trade union act upon the advice of their officials and tear up the ballot papers in the yard. Your Lordships may laugh, but this is a serious matter, and it is not an impossible situation. If that does happen, the trade union has had no part in the matter. What happens then? You have not the consent of the trade union, or of the individual workers, because they have boycotted the ballot. What then is the situation? In my view it will be a completely ridiculous one, and that is why I say that this clause, because of the possibility of those circumstances arising, is really out of touch with reality.

9.26 p.m.

LORD DRUMALBYN

I think we have to start from the beginning and see how this situation can arise. The first thing is that there must, in the belief of the Secretary of State, be an emergency situation or the threat of one. I believe that everybody would take this seriously, and that if there were any doubt as to what the members of the union wanted everybody would regard it as justifiable that the matter should be put to the test. I cannot see why anyone should disagree with this. Here is an emergency situation, and there is some reason to doubt whether the strike would have the full support of the workers concerned. This is the situation that is predicated. Noble Lords say: "How will you know that? Where will you get the information?" Obviously, it will not be obtained only from one source. It will be checked and crosschecked, time and time again. There will be the conciliation officers, the Press and all the things that have been mentioned. All kinds of people are gathering information all the time.

It has to be borne in mind that this is not something that will emerge suddenly. There will be an emergency arising, but it will not as the noble Lord, Lord Davies of Leek, would say, arise out of the air: there will no doubt have been attempts at conciliation and all the rest on the way. It is impossible to say how we will know. All I am saying is that what is predicated here is that there is some reason for doubt. Everybody knows that this will be a rarity. For one thing emergencies, thank goodness, do not spring up every day, and the life of the country is not threatened every day. The viewpoint of the Government is that where that happens there ought to be no doubt whatsoever where the workers stand, and that if there is doubt, then there is justification for putting it to the test. I should have thought that what I have said so far would not be in any way contentious.

The noble Lord, Lord Stonham, talked about television and the Press, and he used words which I should not myself have used about "trying to get someone to say what suits them". I do not think this is what the television and the Press seek to do in these circumstances. Undoubtedly they like to get contrary expressions of opinion. But simply because the television interviewer asks three people for their views, and two say one thing and one says another, they are not going to conclude from that that the division of opinion in the industry as a whole is two-thirds to one-third.

The noble Lord, Lord Champion, then raised the question of subsection (2)(b), which says: the condition that the effects of the industrial action in question on a particular industry are, or are likely to be. such as to be seriously injurious to the livelihood of a substantial number of workers employed in that industry. The noble Lord, Lord Stow Hill, asked what is going to be the criterion for determining that the effect on the industry is likely to be injurious. One cannot draw up a list of the various circumstances that can arise. The noble Lord has a very fertile imagination; he produced one or two circumstances, and asked: "Is this what is meant?" Until the situation arises you do not know. To tax my rather de jure imagination, for one thing it may be that the industry referred to here would be very much larger than the actual area of the dispute. One has only to think of an industry like the motor industry, where a strike among a small number of workers can throw a great many workers out of work. It may permanently damage that particular enterprise or undertaking. It may permanently damage their livelihood; it may lead to redundancies. The strike may cause the undertaking to price itself out of the market; it may have to go completely into liquidation. This is one thing that could happen. I am not saying that it is likely to happen very often, but we are thinking only of the very rare emergency occurrence. The noble Lord referred to the question of capital expenditure and investment, that where there are strikes the proprietors may not be prepared to invest and so keep up to date and competitive. All these things could happen.

We are trying to paint the broad picture to cover the case of an emergency situation where there is some doubt as to whether the workers really want to create it. The fact of having a ballot will bring to the notice of the workers the nature of the emergency, the danger that can occur to the national economy, to national security, possibly health and even life itself. The noble Lords, Lord Champion and Lord Stow Hill, both referred to consulting the trade union. The noble Lord, Lord Champion, referred to this in moderate terms, and the noble Lord, Lord Stow Hill, in unusually sharp terms, and pointed out that this would leave out an organisation of workers. I am not certain why "trade union" was put in, and we are prepared to look at that again, especially as the words in the clause are: …so far as appears to him to be practicable in the circumstances ". One of the difficulties of organisations of workers is that they may be purely temporary and it may be difficult to identify and consult them. But we will look at that point again.

The noble Lord referred to the efficacy of the ballot. Let us remember what we are trying to do. I said earlier that the ballot would be indicative and not decisive. It is to show what the opinion is not only to the union leaders, and the union itself, but also to the public as a whole. I should not have thought that this was to the disadvantage of the trade union. If the ballot showed a tremendous majority in favour of the strike then the public would be bound to deduce that there was something wrong. They would think: "Something should be done about this". I should not have thought that this was necessarily in any way against the trade union. On the other hand, it might be that the trade union leaders had been wrong—even trade union leaders can be wrong. The Secretary of State might be wrong, too. All I would say is that if the Secretary of State had to be certain before he applied for a ballot it would not be worth applying for the ballot at all: he would know in advance. The whole point is that there is doubt.

The noble Lord, Lord Champion, also spoke about pressures on trade union leaders. We are well aware of this, and the noble Lord will agree that they do not always come from one quarter. There can be "hawks" and "doves" and other sorts of birds and reptiles as well. One does not quite know where the pressure may be coming from. The union itself may genuinely be uncertain where the balance of opinion will be. The noble Lord, Lord Taylor of Mansfield, mentioned—and it is of course true—that many unions have their own procedures for holding ballots, and this is very important. But not all unions have them. I would not imagine that, where it is the regular procedure according to the rules to hold a ballot, this provision would arise. But not all unions have these procedures. The mere fact that some unions have them and others have not is an indication that this would be a useful power to have.

LORD TAYLOR OF' MANSFIELD

On that point, is not the noble Lord aware that those unions that do not have procedures for ballots are in that position because of the almost physical impossibility of conducting a ballot? Take the seamen, for instance, or the agricultural workers. One can quote a number of unions in which it is almost a physical impossibility for a ballot to be taken. The Secretary of State will be no more successful than have been the leaders of the unions I have mentioned.

LORD DRUMALBYN

I am not so certain about the seamen. I think my noble friend Lord Balfour might say more about that. I do not want to argue particular cases. I am merely saying that there are gaps that could be filled by this kind of procedure in particular circumstances.

I do not want to pursue the point that the compulsory secret ballot would reduce the number of strikes. We could have provided in this Bill that there should be a compulsory ballot as exists in the National Union of Mineworkers: that there should be a compulsory ballot before any strike. We have not done so, and one of the obvious reasons for that—although a great many people thought it should be done—is that it would be very difficult to enforce. It is much better that the unions should do this themselves where they think it right. But where the livelihood and life of the country as a whole, and the safety of the country, are involved, then surely there is a case for this kind of procedure. I would not for one moment say it is likely to arise often. It relates to emergency conditions. It comes in the Part of the Bill dealing with emergency procedures. My noble friend Lord Balfour was quite right to point this out. I would not disagree with the noble Baroness, Lady Gaitskell, in saying that what we have to do is to find out the problems and solve them; but that also is part of what is provided for in the Bill. We are here dealing with what happens when, despite everything we have tried to do in the Bill, the situation breaks down.

I believe I have covered the points which the noble Lord, Lord Bernstein, raised. The fact is that anybody may be wrong, for both the Secretary of State might be wrong in his doubt and so might the trade union leaders be in their certainty, if they were certain. The noble Lord, Lord Taylor of Mansfield, generally succeeds in picking difficult questions, and he asked what would happen if everybody tore up the ballot papers: what would be the situation then? No one will go to prison for that, so far as I can see; but if people did this the workers themselves would have to consider what would be the effect on public opinion. Part of the object of this particular provision is to open the cupboard, so to speak, and to show the public what really is the opinion of the workers in a particular case. I would have thought that the workers would be very anxious to show what their opinion in this particular case would be. So I really do not think this clause need be opposed.

BARONESS GAITSKELL

I should like to ask one question. Apparently there is to be an army of people going around, trying to get information and finding out whether the workers really want to strike. May I suggest that it would be much better if there were an army of informers and of people going around and finding out where the grievances lay, which would stop the strikes?

LORD DRUMALBYN

We have already passed a clause dealing with conciliation officers, and conciliation officers will be spread pretty well round the country. They will be well informed, and one hopes that they will be in at the early stages of any dispute.

LORD POPPLEWELL

Do we understand from that remark that there will be special conciliation officers appointed to go up and down the country assessing the position. as distinct from the present type of conciliation officers?

LORD DRUMALBYN

No: conciliation is a different thing. and I was not suggesting that they would form a kind of Gestapo, which I believe is what the noble Lord was getting at. Of course this is not the intention. What is intended is quite clear: it is the closest possible cooperation between the conciliation service, to which a great many people have paid tribute, and industry so as to prevent strikes arising; and when disputes do come on the horizon to try to settle them before they become damaging or dangerous.

LORD BERNSTEIN

I am much obliged to the noble Lord for his attempt to answer my questions, and I claim the privilege of waiting until to-morrow when I receive the OFFICIAL. REPORT to see whether my questions have in fact been answered.

9.38 p.m.

LORD CHAMPION

If I thought the ballot would serve the purposes which the noble Lord has suggested I should be in favour of it; but I am not. In the course of his remarks the noble Lord did not refer to the fact that the ballot in this case is to be associated with the cooling-off period which is to be enforced under the next clause of the Bill.

LORD DRUMALBYN

May I intervene for a moment? If by "cooling-off period" the noble Lord means the period during which the ballot is held, then he is correct in saying that that is what the next clause does; but I should make it clear that it is not the 60-day cooling-off period.

LORD CHAMPION

Of course I was quite aware that it was not the 60-day period, and when we come to that clause I shall have to point out that the cooling-off period may be well in excess of 60 days. Sixty days happens to be the limit under Clause 135. This may well be a much longer period, for no period will be stated by the Court. except that it will be the period necessary for the conduct of the ballot. As my noble friend Lord Taylor of Mansfield pointed out, there will be tremendous difficulties in taking the ballot in some industries. For instance, we shall look well, having a cooling-off period for seamen who might be in Singapore or somewhere else during the 60-day cooling-off period. I know that is stretching the point rather far: nevertheless, it will apply to many other industries as well.

The noble Lord said that the Secretary of State will take his action only in those cases where there is an emergency which threatens the life of the country. Surely he is not right about that. Paragraph (b) of subsection (1) says it shall he where it appears to the Secretary of State that either or both of the conditions specified in the next following subsection are fulfilled … The conditions there are, first, the conditions specified in Clause 134(2); namely, the ones to which we were referring under Clause 134, the real emergency conditions, and, secondly, the condition that the effects of the industrial action in question on a particular industry are, or are likely to be, such as to be seriously injurious to the livelihood of a substantial number of workers employed in that industry". You can have a strike of that character without its being a national emergency or creating a national emergency. Those are alternatives under (a) and (b), so I do not think the words of the noble Lord apply here in both cases.

But the main thing about this ballot, and the cooling-off period associated with it, is that we do not think it will have the effect which the noble Earl, Lord Balfour, rather thought it would. If I thought he was right. I should be wholly in favour of this ballot, associated with the cooling-off period. But I am not, for the reason that all the evidence seems to be against it. For example, an outstanding observer of our industrial relations in this country said of Labour Party proposals on this matter of the secret ballot: Employers reacted with mixed feelings. Many of them disliked compulsory strike ballot, which, with reason, they saw as likely to increase, embitter and prolong strikes. I am sure that he was absolutely right about this. This was the point made by my noble friend Lord Popplewell.

The Government, and indeed many people in this country, are very mixed up about this whole thing. There is often inconsistency among those who make such proposals for strike ballots. They assume that in unofficial strikes the union officials know better, yet that in

Resolved in the affirmative, and Clause 137, as amended, agreed to accordingly.

official strikes the rank and file members may possibly know better. One can see the inconsistency that lies there between what is thought about the official and the unofficial strike. This runs through the whole of the thinking of the Tory Party in this connection. One could talk quite a long time about this. I do not propose to. Time is getting on. I think we ought to vote against this objectionable clause, and I hope we shall do so immediately.

9.48 p.m.

On Question, Whether Clause 137, as amended, shall stand part of the Bill?

Their Lordships divided: Contents, 84; Not-Contents, 29.

CONTENTS
Aberdare, L.	Emmet of Amberley, Bs.	Pender, L.
Ailwyn, L.	Exeter, M.	Platt, L.
Albemarle, E.	Ferrers, E.	Rankeillour, L.
Alport, L.	Ferrier, L.	Reading, M.
Balerno, L.	Fortescue, E.	Redmayne, L.
Balfour, E.	Gisborough, L.	Rochdale, V.
Balfour of Inchrye, L.	Goschen, V.[Teller.]	Ruthven of Freeland, Ly.
Barrington, V.	Gray, L.	St. Aldwyn, E.[Teller.]
Belhaven and Stenton, L.	Greenway, L.	St. Helens, L.
Belstead, L.	Grenfell, L.	St. Just, L.
Berkeley, Bs.	Hailsham of Saint Marylebone, L. (L. Chancellor.)	Sandford, L.
Boston, L.		Sandys, L.
Brabazon of Tara, L.	Hankey, L.	Sempill. Ly.
Buccleuch and Queensberry, D.	Harvey of Prestbury, L.	Skelmersdale, L.
Burton, L.	Harvey of Tasburgh, L.	Somers, L.
Conesford, L.	Headfort, M.	Stamp, L.
Cork and Orrery, E.	Henley, L.	Strathcarron, L.
Craigavon, V.	Hives, L.	Strathcona and Mount Royal, L.
Craigmyle, L.	Inglewood, L.
Crathorne, L.	Kemsley, V.	Swansea, L.
Crawshaw, L.	Kilmany, L.	Terrington, L.
Cromartie, E.	Kinloss, Ly.	Thomas, L.
Cullen of Ashbourne, L.	Latymer, L.	Tweedsmuir, L.
De Ramsey, L.	Macpherson of Drumochter, L.	Tweedsmuir of Belhelvie, Bs.
Denham, L.	Monck, V.	Vivian, L.
Drumalbyn, L.	Mowbray and Stourton, L.	Wigram, L.
Dudley, E.	Netherthorpe, L.	Windlesham, L.
Dundee, E.	Nugent of Guildford, L.	Wolverton, L.
Elliot of Harwood, Bs.	O'Neill of the Maine, L.

NOT-CONTENTS
Archibald, L.	Gardiner, L.	Phillips, Bs.[Teller.]
Bernstein, L.	Garnsworthy, L.[Teller.]	Popplewell, L.
Beswick, L.	Hilton of Upton, L.	Ritchie-Calder, L.
Blackett, L.	Hoy, L.	Slater, L.
Buckinghamshire, E.	Hughes, L.	Stonham, L.
Champion, L.	Janner, L.	Stow Hill, L.
Collison, L.	Lloyd of Hampstead, L.	Taylor of Mansfield, L.
Cooper of Stockton Heath, L.	MacLeod of Fuinary, L.	Wells-Pestell, L.
Diamond, L.	Maelor, L.	White, Bs.
Gaitskell, Bs.	Milner of Leeds, L.	Wynne-Jones, L.

Clause 138 [Order of Industrial Court on application under s. 137]:

9.57 p.m.

LORD BELSTEAD moved Amendment No. 278H:

Page 101, line 20, at end insert— (3A) Any order under this section shall indicate the scope of the industrial dispute in consequence of which the Order is made, in such manner as may appear to the Industrial Court to be sufficient to indicate the area of employment affected by the dispute and the extent of the matters to which the dispute relates.

The noble Lord said: We have tabled this Amendment for the express purpose of harmonising the provisions for making a ballot order with the provisions for making a restraint order, and your Lordships will see that the wording is exactly the same as the wording in subsection (6) of Clause 135. I beg to move.

On Question, Amendment agreed to.

On Question, Whether Clause 138, as amended, shall stand part of the Bill?

LORD CHAMPION

Our doubts about the compulsory ballot proposals were expressed on the Question, Whether Clause 137 shall stand part of the Bill? But there are some features of this clause which we must bring to the notice of the Committee. The first of these is the limitation in subsection (1) to which my noble friend Lord Stow Hill adverted earlier. This is concerned with matters about which the Court has to be satisfied before making an order under the clause. It seems to me that a very important matter which ought to be brought under review by the Court in taking its decision under subsection (1) is whether the Secretary of State was correct in deciding that a decisive condition contained in Clause 137(1)(c) was at all fulfilled. Under the terms of Clause 138, all the Court has to be satisfied about is whether there are sufficient grounds for believing that the conditions specified in Clause 134 are present, and/or whether the industrial action may be such as seriously to injure the livelihood of a substantial number of workers. But there is nothing in subsection (1) about the doubt which has actuated the mind of the Secretary of State. Surely that is a serious omission, particularly when the application stems from a doubt in the mind of one who may well be the subject of considerable Party political pressure and who has to take a subjective and not an objective decision.

We have heard a lot about the independence of such a Court from the Executive, and this is surely the sort of instance where the Court should be allowed to exercise its independent judgment on a very important matter. It was a serious omission from the Bill that the persons affected were not to be parties to the proceedings on the application, as was the case from the outset under Clause 135. That defect has now been remedied. But even though the parties will have a statutory right to be parties to the proceedings in the Court, it seems to me that the first and obvious question an organisation of workers will wish to raise will be whether the doubt of the Secretary of State was justified about whether or not the workers had an adequate opportunity to indicate their wishes in this respect. This is surely a matter which an organisation would be expected to raise with the Court, and they ought to be able to. Yet, so far as I can see, they will be precluded under subsection (1) from doing anything of the sort. Under subsection (1), the Court has to satisfy itself on two counts only before making an order, and those two counts do not include the vital one in connection with this and the preceding clause, namely, the question of the doubt in the mind of the Secretary of State. I still do not think that this clause is good enough, despite the alteration to Clause 137 as to satisfying the Court before it makes an order.

The other matter to which I would call the attention of the Committee is the fact that so far, under this Part of the Bill dealing with emergency procedures, there has been no mention of the Commission; but here, in subsection (4), we learn that the Court may if it thinks fit invite the assistance of the Commission in formulating an order under this clause. Incidentally, I must point out that there is not a word here, as is the case with the rest of the Bill, about consultation with either the T.U.C. or the C.B.I.—the people who know something about all this. Be that as it may, I would have thought that in every case of an order by the Court, the Commission, which under the Bill is expected to be the body most closely in touch with the problems of industrial relations, ought by statutory provision to be brought into consideration of the possible order by the Court, so that it would be mandatory to consult the Commission, and not permissive.

I believe that the Commission is such a body that it ought to be brought in on matters of this sort; and particularly is this the case when the Court is considering the question on which the ballot is to be taken. If I had moved the previous Amendment, I should have had to spend some time on this particular aspect of it. The simple fact is that the question could be loaded. It ought not to be by any responsible Court; but the best people to advise the Court on a matter such as this would surely be the Commission, the body which, as I have previously said, is adjudged by the Government whose Bill this is to be the group most closely associated with the problems of industrial relations. Taken altogether, this is a clause which is bound to have the effect of exacerbating the troubles that led to the dispute, for action under it will inevitably be regarded as anti-trade union, for a decision of the Court will be taken in a wholly arbitrary way—mainly, I fear, on the "say so" of the Secretary of State, based on his judgment of the doubt which we have been discussing under the previous clause. I do not think that this clause, either, should remain within the Bill.

LORD DRUMALBYN

The trouble about asking the Court to decide whether the Secretary of State is right to have doubts or not is that it is very difficult to prove a matter of this kind in a Court. In any case, surely, this is something which is eminently within the responsibilities of the Secretary of State himself. As I said before, the sources from which he might learn that there are doubts might be very wide and varied. For example, the T.U.C. might be a source; but I do not know whether one would want to bring them into the Court and indicate that there were doubts about it. All kinds of matters might arise on this. I think it would be extremely difficult to get any kind of certainty about the doubts in the Court. This is something about which the Secretary of State must make up his own mind. He is responsible for the expenditure and all the rest. I must say that he would look rather silly if he took the matter to the Court on the basis that he had reasons for doubt and it turned out that he was 90 per cent. wrong. So, clearly, he is going to be careful about this. He is going to be answerable to Parliament and I should have thought that that was enough.

The noble Lord said that he thought the C.I.R. should be brought in mandatorily. I should have thought it sufficient to say that the Industrial Court may invite the assistance of the Commission. I agree with the noble Lord that the Court will be well advised to ask the views of the C.I.R. in the framing of the question. Whether there will be any difficulty about the framing of this question, one cannot be certain. It may be a very obvious question. On the other hand, the Industrial Court may want to have the advice of the Commission; and on the whole it is better to say to an independent body that they "may" consult rather than they "shall" consult. Obviously the whole reason for putting this matter of framing the question of the ballot into the hands of the Industrial Court is to avoid the possibility of the question being loaded. I am sure that the Court is eminently equipped to see that the question is not loaded. It may not be quite so well equipped to say that the question is right. So far as that is concerned, it will have to decide whether or not to consult the C.I.R. I understand that the noble Lord does not like this provision—that is clear from the discussion on the last clause. But perhaps that explanation will answer the points which he has raised.

LORD GARDINER

While my noble friend Lord Champion is considering what the noble Lord, Lord Drumalbyn, has said, may I say that this is the first of three or four clauses which refer to the results of a ballot? We have had in the earlier Parts of the Bill other groups of clauses which raised the same question. When discussing those, I pointed out that the Court has to accept what the Commission says is the result of a ballot. The Bill makes no provision for a perfectly bona fide dispute about what is the true result of the ballot. After those discussions, the noble Lord, Lord Drumalbyn, wrote to me saying that the Government had given serious attention to this and that if I would raise it again when we came to this group I might learn something to my advantage. I accordingly now do so.

LORD DRUMALBYN

I regret that I am not yet in a position to give an answer to the noble and learned Lord. I am sorry to have raised his hopes only to dash them. But I hope to be able to answer him later.

LORD CHAMPION

Does that mean that the noble Lord wil not be able to answer my noble and learned friend at all on this group of clauses, and that he must wait until we get to later clauses which specifically deal with how the ballot is to be taken? The noble Lord shakes his head. I take it that my noble friend must wait until the Report stage or near it.

The noble Lord said that it would be difficult for the Court to decide this matter of doubt. I cannot see why it would be particularly difficult for the Court, with the evidence that would be placed before it, to take a decision as to whether doubt existed or not. I cannot see that there is or would be the slightest difficulty about the Court deciding a matter of that sort. I think the Court ought to be in a position to check the Secretary of State. It is true that in this matter the Secretary of State might eventually have to justify his decision to Parliament; but that might be after a long time, after a decision had been taken. and after the ballot had been taken. The noble Lord suggests that the ballot might show, one way or the other, whether there ought to have been a doubt. I feel that this is a bad clause, but, in order not to waste the time of the Committee, I propose to allow it to be carried.

Clause 138, as amended, agreed to.

Clause 139 [Provisions pending result of ballot ordered tinder s. 138]:

10.11 p.m.

LORD BELSTEAD moved Amendment No. 278J: Page 101, line 29, after ("workers") insert ("or other person")

The noble Lord said: With the permission of the Committee I beg to move Amendment No. 278J and with it to dis- cuss Amendments No. 278K, 279B, C and D and Amendment No. 280A. The first and most significant of the points concerned is the identity of those who, under a strike ballot order, are required not to take any action to call a strike while the order is in force and are required to use their best endeavours to have such strike discontinued. Subsection (1)(a) of this clause refers to four different categories of persons: an organisation of workers, an official, any other person specified and any person falling within a specified description. The first two Amendments, Nos. 278J and K. and the fourth and fifth, Nos. 279C and D, seek to reduce those four categories to two; namely, an organisation of workers or any other person.

The purpose of these Amendments is not only to simplify, it is also to ensure that any person or organisation bound by an order to refrain from calling a strike is identified by name in the order; as indeed he will have been identified by name in the Secretary of State's application. The second point covered by the third of this group of Amendments, No. 279B, is the application of a ballot order to a lock-out. It is conceivable —I put it no higher—that an employer might wish to forestall a union by locking out his employees at a time when a ballot order was in force. It would clearly be wrong to permit an employer to conduct a lock-out in these circumstances. The Amendment proposed to line 38 on page 101 will therefore make it clear that it would be a breach of the ballot order for any person to lock out employees who are being balloted while the ballot order is in force.

Finally, the last of this group of Amendments, in line 5, page 102, refers to what I think is now a familiar point. It sometimes happens that where a union is supporting a strike, strike instructions have been issued by the shop stewards. Where this is the case the strike ballot order would require the union to withdraw any instructions it had issued under its authority, and to ensure that its stewards withdrew instructions which had been issued without union authority. I feel that this point has been argued in some detail on Amendment No. 278, and I beg to move the first Amendment.

On Question, Amendment agreed to.

LORD BELSTEAD

I beg to move Amendment No. 278K.

Amendment moved— Page 101, line 29, leave out from ("order") to first ("shall") in line 33.—(Lord Belstead.)

On Question, Amendment agreed to.

10.15 p.m.

LORD BELSTEAD

I beg to move Amendment No. 279B.

Amendment moved— Page 101, line 38, leave out from ("employer") to ("shall") in line 41 and insert ("organisation of employers or other person").—(Lord Belstead.).

On Question, Amendment agreed to.

LORD BELSTEAD

I beg to move Amendment No. 279C.

Amendment moved— Page 102, line 1, after (" organisation") insert ("or other person").—(Lord Belstead.)

On Question, Amendment agreed to.

LORD BELSTEAD

I beg to move Amendment No. 279D.

Amendment moved— Page 102, line 3, leave out from beginning to ("to") in line 4.—(Lord Belstead.)

On Question, Amendment agreed to.

LORD BELSTEAD

I beg to move Amendment No. 280A.

Amendment moved— Page 102, line 5, after ("withdrawing") insert ("or securing the withdrawal of").— (Lord Belstead.)

On Question, Amendment agreed to.

LORD STOW HILL moved Amendment No. 281:

Page 102, line 10, at end insert— (" (3) The provisions of subsection (3) of section 135 of this Act shall with any necessary modification apply in relation to an order made under this section.")

The noble Lord said: Clause 135(3) provides that persons who merely take part in a strike and officials who have no responsibility for it except in their capacity as officials of a registered trade union cannot be included within the order for the 60 days' pause. Clause 139 also deals with an order for a suspension of strike activity so that the ballot can be taken. One would have thought that inasmuch as it has been thought proper to exclude ordinary strikers and officials from the order for the 60 days' pause, they should also be excluded from the order which requires a pause so that the ballot should be taken. The object of the Amendment is to exclude them from the scope of that order. There seems to be no reason in justice why they should be excluded in one case but nevertheless made liable in the other. They seem to be in equal case and it seems illogical to make that distinction between the effect of the operation of Clauses 135 and 139 on those persons.

That consideration seems to me, unless I am mistaken, to be equally applicable to Clause 139 in its amended form. The only change that is made is to describe in more simple and compendious terms those categories of people who can be included in the order. Those who are excluded by the provision in Clause 135 to which I have referred are still included in the amended Clause 139.

The way in which my noble and learned friend Lord Donovan, and my noble friend Lord Taylor of Mansfield, seek in this Amendment to achieve that change is by making applicable to Clause 139 the provisions of subsection (3) of Clause 135. If that subsection were made applicable, with necessary changes, to Clause 139, it would exclude from the ambit of an order relating to a ballot both the categories of persons who are excluded from the order for a pause which can be made under Clause 135. I hope the Government will accept that the same situation should apply to those categories of persons under both clauses, and that they will indicate that they are prepared to accept the Amendment. I beg to move.

LORD DRUMALBYN

I am grateful to the noble Lord. I wonder whether he has examined Amendment 281A. I was under the impression that subsection (6) of this Amendment to Clause 139 covered the point he had in mind. If that is not so, we shall certainly give consideration to the point he has made. My impression, however, is that it is covered by Amendment No. 281A.

LORD CHAMPION

It seems to me to be so.

LORD STOW HILL

I am grateful to the Minister. When I looked at it I thought not, but it has only recently been put on the Marshalled List. Perhaps I might look at this again. However, the noble Lord has kindly intimated that this point might be looked at again, and if I am right in so understanding him, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.22 p.m.

LORD DRUMALBYN moved Amendment No. 281A:

Page 102, line 10, at end insert— (" (3) Subject to the following provisions of this section, the persons (whether organisations of workers or other persons) specified in the order in accordance with subsection (1)(a) of this section shall be the persons specified in the application in accordance with section 137(2A) of this Act. (4) If at any time during the period mentioned in subsection (1) of this section it appears to the Secretary of State that persons other than those specified in the order (in the following provisions of this section referred to as "the principal order") in accordance with paragraph (a) of that subsection are at that time responsible as mentioned in section 137(2A) of this Act, the Secretary of State may make an application to the Industrial Court, specifying those persons and applying for the principal order to be extended to them and the persons so specified shall, together with the Secretary of State, be the parties to any proceedings on that application. (5) Subject to the next following subsection, on any application made by the Secretary of State under subsection (4) of this section the Industrial Court shall make an order specifying the persons who were specified in the application and directing that, in relation to any time after the order under this subsection takes effect and before the result of the ballot to be taken under the principal order has been reported to the Court, the principal order shall have effect as if those persons had been included among the persons specified in the principal order in accordance with subsection (1)(a) of this section. (6) The persons specified in the principal order in pursuance of subsection (1)(a) of this section, and any persons specified in any order under subsection (5) of this section, shall not include any person who in the opinion of the Industrial Court (notwithstanding that he is specified in the application for the order)—

1. (a) has, or (as the case may be) would have, no responsibility for the strike or other action in question beyond that of being included among the persons taking part in it, or
2. (b) has 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 union acting within the scope of his authority on behalf of the trade union.

(7) On and after the date on which the principal order takes effect, the Industrial Court shall not (whether before or after the date on which the result of the ballot is reported to the Court) entertain any application under section 137 of this Act in respect of the same industrial dispute, or in respect of any other industrial dispute in so far as it appears to the Court that its scope falls within the scope (as indicated in that order in accordance with section 138(3A) of this Act) of the industrial dispute in consequence of which that order was made.")

The noble Lord said: I must apologise for the lateness of this addition to Clause 139. I hope its purpose will be reasonably welcome to noble Lords opposite, and indeed to the whole Committee. Its purpose is to secure for trade unions and their officials and members the safeguards which are already provided in Clauses 135 and 136. Perhaps I might go very quickly through the subsections.

The new subsection (3) ensures that a strike ballot order will in general only extend to bind those identified in the Secretary of State's application—that is, those who are parties to the proceedings before the Court. In short, the order cannot go wider than the Secretary of State's application. The new subsections (4) and (5) cover the situation where, after a ballot order has been made, a person not bound by the order calls or procures a strike through the workers involved in the statutory ballot. It would make nonsense of these provisions if such a person were free to organise industrial action without let or hindrance. While therefore he cannot be held to have broken the Court's order, it is proposed that the Secretary of State should be able to have the new strike leader's name added to those who are bound by the original or principal order.

The purpose of the new subsection (6) repeats mutatis mutandis the provisions of subsection (3) of Clause 135. It would prevent the Court making an order specifying a person who was no more than a participant in the strike, or who was a union official acting within his authority in calling a strike. I should make it clear that throughout the Bill the Government have consistently maintained the principle that sanctions should only be imposed against strike leaders or organisers and not against those who participate in a strike. The Government have also been concerned to ensure that, wherever a union official takes action within the limits of his authority, his union must be responsible for the official's acts. It follows therefore that if a union official calls a strike in circumstances in which the Secretary of State considers it desirable to invoke the emergency powers, the consequential order is made against the union and not the official. When, on the other hand, the union official has no authority for strike action, the strike ballot order may name him personally rather than his union, or possibly in addition to his. union.

Finally, the new subsection (7) makes it clear that the Secretary of State may not apply for a second ballot order in respect of the same industrial dispute. He may seek to add further persons to the list of those bound by the original order, but he cannot under the terms of the proposed new subsection (7) defer the strike for a further period while another ballot is held. I do not think I need to explain to your Lordships the need to protect trade unionists in this way. I beg to move.

LORD CHAMPION

This massive Amendment was put down, as the noble Lord has said, very late, and we have not yet had time to study it thoroughly. This seems to me to be particularly so in the case of my noble friend Lord Stow Hill. whose grasp of these things is so immediate that it rather surprised me that he was not absolutely au fait with subsection (6). It appears to be an importation into this clause which ought to be accepted by the Committee if they accept the principle of the clause itself. It ensures that the persons to be specified shall be parties to any proceedings on the application, and it also seems to me that subsection (6) extends to persons the same sort of thing as is embodied in Clause 135, which I would regard as wholly desirable. There is one question that I should like to have answered by the noble Lord, and it is this. Clause 137 (3) says that before making any application under that clause the Secretary of State shall, as far as practicable. consult every employer, trade union … appearing to him to be a party to the industrial dispute in question. Under this Amendment the scope of the application may be considerably widened, perhaps bringing into its scope trade unions not included in the original application. Ought there not to be in this Amendment a similar provision to that in Clause 137(3), so that the trade unions or others are consulted before the application is made by the Secretary of State? I certainly should not advise my colleagues to divide against this Amendment, but it will have to be further studied between now and the Report stage, for the fact is that we have only seen this so recently that we have not had an opportunity to study completely this massive Amendment, as I think I rightly called it. Certainly we shall not divide against the Amendment. We think it embodies some improvements into the clause.

LORD DIAMOND

Before the noble Lord replies to my noble friend, I should like to ask him a question the answer to which I have not been able to spot, although I frankly admit that I have not read the Amendment with the care that my noble friend has. I am referring to what the noble Lord, Lord Drumalbyn, said about the persons against whom an order will not be made, one of those persons being an official of the union who acted within the authority of the union. What I am concerned with here is the same principle that I was concerned with elsewhere; namely, a shop steward acting outside the authority of his union, but in anticipation of subsequent confirmation, where that subsequent confirmation takes place. Is that shop steward to be named in the order, notwithstanding that subsequent confirmation takes place of his action which at that point of time is unauthorised?

LORD DRUMALBYN

I am grateful to the noble Lord. To deal with the second question first, I should have thought that here we are in a rather different sphere from the one which we were considering earlier. To defy a court order is rather a different matter from the kind of situation the noble Lord was raising earlier on. I should not have thought that there could be any question of endorsement later, because if you defy an order outside the scope of your authority you obviously do it on your own responsibility, and even though later the union, an organisation of workers, itself decides to defy the order, I do not see that you can endorse a defiance of a court order.

As to Lord Champion's point, I wonder whether he is right. Obviously, he has not given me notice of this question because he has hardly had notice of the clause; but we are here dealing with persons, not an area. He used the words "scope of the order". We are dealing with particular persons acting in defiance of the order. I should not have thought that there was any question of consulting any trade union about it. I am quite willing to look at the point.

On Question, Amendment agreed to.

On Question, Whether Clause 139, as amended, shall stand part of the Bill?

10.32 p.m.

LORD STOW HILL

The submission I would make with regard to Clause 139 as a whole is that it is quite unnecessary and that it does harm which could be avoided. This Part of the Bill really contains two separate sections. Clauses 134 and 135 provide for the order to suspend a strike for 60 days where there is a national emergency. Both clauses are carefully framed to ensure that the total period for which the strike is suspended does not exceed 60 days on the first order. There may be more than one order, but in the aggregate they must not extend for a period in excess of 60 days. When one is dealing with the ballot clauses, Clauses 136 onwards, the object presumably of the Government is to find out in the case of any given strike whether or not those who are taking part in the strike really are in sympathy with it. I take it that that is the sole purpose of the Government. They feel that if the result of a ballot showed that there was a majority against the strike it would come to an end. In the nature of things it is impossible to lay down any time limit within which the ballot has to be taken. It is impossible to formulate any idea as to how long the strike is going to be suspended.

What has to take place? The Secretary of State has to make up his mind to approach the Court. When he gets to the Court he has to satisfy it that the necessary condition, or both the conditions, are present: either that there is a national emergency, or a likelihood of the workers' livelihood being impaired, or both. It is very important to consider in this particular context that the ballot can apply where there is no national emergency at all. It can apply in the case of any strike with regard to which the Minister can say to himself honestly that he has doubts as to whether the majority of those taking part in it are in favour of it. So this can apply virtually to almost any strike. One can doubt about any strike whether that is the case or not. One has only to doubt: that is all. So, in the case of any strike, without any emergency, this procedure can be applied.

If the Government's object is really to find out whether the strikers are with the strike or not, what on earth is the need, if the strike has already started, to have it stopped while the ballot is taken—from the time the Court makes its order, while the ballot is taken, until the result of the ballot is reported to the Court, a period of time which is quite indeterminate but which may be at any rate some weeks? These things cannot be arranged at five minutes' notice. During that time it seems to me, so far as the Government's purpose is concerned it does not make the slightest difference whether the strike goes on or stops. One always hopes that the strike will stop, but let it stop of its own momentum, rather than as the result of this arbitrary order which it is contemplated will be made as a result of the application to the Court.

The reasons which impel the conclusion that I urge upon the Government are these. It has been pointed out over and over again from this side of the Committee that where you have the case of a strike, particularly where there is no national emergency behind it, it is going to exacerbate the position very badly if the Minister can obtain from the Court this order suddenly stopping it; and not only suddenly stopping it, but stopping it for an indeterminate period. In that respect the situation is more aggravating, from the point of view of the strikers and the union leadership, than when an order is made in the case of a national emergency, which order cannot exceed 60 days.

The question that I put to the Government Front Bench is this. Is it really necessary to cause the strike to be suspended while a ballot is taken? The ballot can be taken while the strike goes on. There is no need for the men to have to go back to work in order to take a ballot; it does not affect the position one way or the other. I would respectfully submit that the whole procedure would be far more acceptable, from the point of view of the union side of the table and from that of those taking part in the strike, if this compulsory return to work were omitted and if the clauses which provide for it were removed from the Bill.

10.38 p.m.

LORD COLLISON

One point has not been made which I think ought to be made and which the Government should consider. If the Secretary of State is in doubt and requires a ballot, and a ballot is decided upon by the Industrial Court, it could well happen that the majority of workpeople concerned would vote for the strike. The strike would then continue, and the union would negotiate with the employer with a view to reaching a settlement. It might be that the employer and the trade union would arrive at a settlement which they would want to recommend to their people. But, having been compelled to hold a ballot to determine the actual participation of the workers in the strike, if there were a dissident element among the workers might they not then use the situation to demand a further ballot before a return to work? It seems to me, knowing trade union people, that this is a natural course of events and a sequence of thought which could take place in the minds of people involved in the strike.

My view is that this is quite a serious proposition which ought to be looked at very carefully by the Government if they are really seeking to avoid unnecessary strikes and also to avoid an undue delay in a return to work when a trade union has been able to negotiate what they feel to be, as an executive maybe, a proper settlement with the employer concerned.

LORD CHAMPION

I shall be most anxious to hear the reply which the noble Lord, Lord Drumalbyn, will make to my noble friend Lord Collison on his important question. I must admit that it is a question that had not occurred to me. It appears as though there may be circumstances such as he has mentioned in which a strike may be prolonged unnecessarily, and I would hope that the Government would pay some attention to the words of one so experienced in trade union matters as is my noble friend.

The noble Lord, Lord Stow Hill, has made some of the points that I proposed to make in relation to the number of days during which the cooling-off period may operate in association with the taking of a ballot. What may be a maximum of 60 days in relation to the national emergency orders finds no comparable period or limitation under this clause, or indeed any maximum at all. I am far from sure, as yet, that the Amendment to which the Committee has just agreed might not have the effect of lengthening an already lengthy cooling-off period during which the ballot is being taken.

Under the clause as it now stands, despite the Amendment made to Clause 137, the Court wil lhave to define the area of employment and the question of who is to be eligible to vote. In any event that will require a set of complicated but very important definitions that will have the effect within the terms of the clause of making the persons coming within those definitions liable to be sent to prison for contempt of court should they contravene the order of the Industrial Court.

The difficulties of definition will really be enormous when there is. as is so often the case, a dispute involving a limited group of workers within an undertaking. This was the case at the Port Talbot steelworks a few years ago, where a group of maintenance workers within a very large undertaking held up the whole of the works by their action. The whole business of the cooling-off period, started by a doubt in the mind of the Secretary of State, seems to me to be very much the making of a charter for the splinter group or dissident minority. This is so, for all that is needed is for a minority group, acting in a dispute about recognition, for example, to create a doubt in the mind of the Secretary of State, and from such a doubt the whole machinery of these clauses may spring into action.

Again, this clause perpetuates the stupidity of the distinction between the registered and the unregistered trade union, and I understood the noble Lord to say that they would be looking at that and perhaps altering it before the Report stage, but we shall have to look at this most carefully. I do not like this clause a little bit. What we do on this side of the Committee will depend very largely on the Government reply to the points so well put by my noble friends, and I very much look forward to hearing the reply of the noble Lord. Lord Drumalbyn.

10.45 p.m.

LORD DRUMALBYN

Perhaps I should clear up a point straight away on one of the last things said by the noble Lord, Lord Champion. The actual point on the distinction between a trade union and an organisation of workers that we were dealing with was on the question of consultation only. I do not think I can hold out any hope in other respects. There are obviously difficulties about the strike period. The noble Lord, Lord Stow Hill, drew attention to these, and in particular to the fact that no maximum period is specified. Of course the area of employment to be covered will vary very much indeed from circumstance to circumstance, and plainly the time required for the ballot will have to vary accordingly, and there will be other circumstances involved, such as dispersion, and so forth. But the period within which the result of the ballot is to be reported to the Industrial Court has to be determined by the Court. Of course it could be reported very much sooner. In that case the standstill, so to speak, is, I think, discharged.

The noble Lord raised the much wider question of whether it is necessary to defer the strike, or indeed to interrupt the strike in order to hold a ballot at all. Our view on this is that it is much better, for a number of reasons, to bring the workers back to work. From the point of view of the actual conduct of the ballot alone, of course, it is very much easier. Secondly, in an atmosphere of worklessness I am not at all certain that you are likely to get the best results. I think that probably it is much better that people should be together at their normal jobs when the ballot is conducted. I recognise at once that it is not in all cases going to be very easy to achieve this object and to bring people back to work in those circumstances, but I believe that the publicity that will be given in these circumstances will be sufficient to bring them back. I remember in the debate on In Place of Strife quite a lot of stress was laid upon the status quo ante, and I think a restoration of the status quo ante in a case like this is probably desirable.

The question of demanding a further ballot was raised by the noble Lord, Lord Collison, who was, of course, a member of the Donovan Commission. He has enormous experience, and I think he was quite right to do this. But the Government decided that this was not really on, and indeed subsection (7) of the subsections that I have just moved into this Clause would make it impossible to have a second ballot on the same subject. So that if there was a demand, I would suggest that it would be for the union to conduct it, as unions so often do conduct ballots for a return to work. I hope I have dealt with the various questions that have been raised.

I must make it plain this is an experimental area, and one cannot be absolutely dead sure that one has got everything right here. That is why I have dealt in that spirit with the points the noble Lords, Lord Stow Hill and Lord Champion and Lord Collison, have raised. But we have done the best we can on this question, and on balance we think that it is better to bring everybody back to work, partly, of course, because of the very factor that the noble Lord, Lord Stow Hill, referred to, that the time that the Court will have to allow for the ballot may vary very much in certain circumstances, and that it would be rather stupid to prolong the strike in order to hold the ballot.

It was suggested, either by the noble Lord, Lord Collison, or the noble Lord, Lord Champion, that holding a ballot might in any case prolong a strike. But we believe it is better to bring everybody back for the ballot and to hold it in that way. The ballot will not necessarily determine whether a strike takes place or continues or does not take place at all. What it will do is to show what the workers want. We believe that that is a good thing in itself, in circumstances where there is a doubt.

10.50 p.m.

LORD COLLISON

I apologise for continuing this discussion, but I am quite serious about it. I think there is a point that ought to be looked at quite carefully. This is meant to be helpful. If a ballot is demanded by what the trade union people will see as State intervention, I think they will equally well demand, and with justification, that, before they accept their union's decision as to the acceptance of a settlement which some of them may not like, there should be a further ballot. But I do not want to appear to be overstressing the point. Obviously, the question as to who pays for the ballot comes into this. In the first instance, it can be paid for from outside union resources. If the union are put into a position that they have to conduct another ballot in order to satisfy their membership, and to meet a real attack by people who may be considered as being not very loyal trade unionists, in the sense that they are trying to disrupt the union—and this happens, as we all know—a real problem arises. I intervened simply because the point had not been previously made. I think there is a great deal of substance in it. If an answer could be found, it should he looked at. There might be difficulty about this.

LORD DRUMALBYN

When someone with the experience of the noble Lord, Lord Collison, raises a point of this description, of course I should certainly want to give it further consideration, and I will clearly do so. But I cannot, of course, make any commitment.

10.52 p.m.

On Question, Whether Clause 139, as amended, shall stand part of the Bill?

Resolved in the affirmative, and Clause 139, as amended, agreed to accordingly.

Clause 140 [Conduct of ballot]:

10.59 p.m.

LORD BELSTEAD moved Amendment No. 282K: Page 102, line 28, after ("conducted") insert ("either")

The noble Lord said: With your Lordships' agreement, I should like to discuss Amendments Nos. 282L and 282M with this Amendment. The provisions of Clause 140, to which we now move, envisage that the C.I.R. will ordinarily conduct a strike ballot, except where the workers concerned in the ballot are members of a trade union which has approved balloting rules, and which is willing to conduct the ballot itself. This group of Amendments do no more than permit the C.I.R. to delegate the work of conducting a ballot to some body other than the union concerned, provided that the C.I.R. retains responsibility for supervising the ballot and for ensuring that it is conducted according to the proper rules.

Their Lordships divided: Contents, 72; Not-Contents, 15.

CONTENTS
Aberdare, L.	Goschen, V.	Rochdale. V.
Amherst of Hackney, L.	Gowrie, E.	Ruthven of Freeland, Ly.
Balerno, L.	Gray, L.	St. Aldwyn. E.
Balfour, E.	Greenway. L.	St. Helens, L.
Belhaven and Stenton, L.	Grenfell, L.	St. Just, L.
Belstead, L.	Hailsham of Saint Marylebone, L. (L. Chancellor.)	Sandford, L.
Berkeley, B.		Sandys, L.
Brabazon of Tara, L.	Harvey of Prestbury. L.	Selkirk. E.
Buccleuch and Queensbury, D.	Harvey of Tasburgh, L.	Sempill, Ly.
Burton, L.	Henley, L.	Skelmersdale. L.
Conesford, L.	Hives, L.	Somers, L.
Cork and Orrery, B.	Inglewood, L.	Stamp, L.
Crathorne, L.	Kemsley, V.	Strange, L.
Cromartie, E.	Kilmany, L.	Strathcona and Mount Royal, L.
Denham, L.	Latymer, L.
Drumalbyn, L.	Lauderdale, E.	Swansea, L.
Dudley, E.	Lucas of Chilworth, L.	Terrington. L.
Dundee. E.	Macpherson of Drumochter, L.	Thomas, L.
Elliot of Harwood, B.	Mowbray and Stourton, L.[Teller.]	Thorneycroft. L.
Emmet of Amberley, B.		Tweedsmuir, L.
Exeter, M.	Nugent of Guildford, L.	Tweedsmuir of Belhelvie. B.
Ferrers, E.[Teller.]	Pender, L.	Vivian. L.
Ferrier, L.	Rankeillour, L.	Wigram, L.
Fortescue, E.	Reading, M.	Windlesham. L.
Gisborough, L.	Redmayne, L.	Wolverton, L.

NOT-CONTENTS
Bernstein, L.	Gardiner, L.	Milner of Leeds. L.[Teller.]
Beswick, L.	Garnsworthy, L.[Teller.]	Ritchie-Calder. L.
Champion, L.	Hoy, L.	Stow Hill, L.
Collison, L.	Hughes, L.	Wells-Pestell, L.
Diamond, L.	MacLeod of Fuinary, L.	Wynne-Jones, L.

This brings this clause into line with the rest of the Bill, and I hope that your Lordships will see no reason why the C.I.R., as in the rest of the Bill, should not enjoy this discretion in respect of strike ballots. I beg to move.

LORD CHAMPION

The noble Lord said that under the Bill the Commission would be expected to ask, and in fact would ask, a trade union whose rules had been approved by the Registrar under Part IV of the Bill to conduct the ballot. It says here that the Commission "may" request the trade union to conduct the ballot in relation to those workers. There is nothing obligatory about this. It does not say "shall"; it says, "may". So I would have thought he was not quite right when he told the Committee that the trade union would in fact conduct the ballot if the rules had been approved by the Registrar. That is really what it amounted to.

The other point about which I wanted to ask in this connection concerns the second Amendment to which the noble Lord has spoken. What is meant by the words proposed to be added to the clause, "by some other body"? Does this mean that in some circumstances the Commission may ask an unregistered organisation of workers to conduct the ballot? As I see it, an unregistered trade union would be a body other than the body mentioned in subsection (2), and would appear to me to fall within the terms of the Amendment. I wonder if I am right about that. I hope the noble Lord will be able to give me an answer on this before we part with the first of these Amendments.

LORD BELSTEAD

I must apologise for perhaps not sticking as closely to my brief as I should have done. I should have said "would normally", and the noble Lord was quite right to pull me up. I should have thought the answer to the noble Lord's second point was that this surely is within the C.I.R.'s discretion. Obviously, from previous discussions on the Bill, what the Government have in mind on this is a body like the Industrial Reform Society. Apart from saying that this is within the discretion of the C.I.R I. do not think I can give the noble Lord any more information on this point at this moment.

LORD CHAMPION

I should not like to see anything added to the Bill which would exclude an unregistered trade union, but I have some doubts as to whether the noble Lord is right about this. I should have thought the words "a body" used in this connection would ensure that the unregistered trade union could be brought in under the terms of the clause and of the Amendments which the noble Lord has moved. But perhaps he will look at this point further between now and Report if he feels that he has made a mistake about it.

LORD BELSTEAD

We shall he only too pleased, of course, to do this, but, once again, at the discretion of the C.I.R. —and I think I have been right in the intention which I imputed to the Government in this particular subsection.

On Question, Amendment agreed to.

LORD BELSTEAD

I beg to move Amendment No. 282L.

Amendment moved— Page 102, line 28 after ("Commission") insert (" or by some other body under the supervision of the Commission, and in either case shall be conducted ")—(Lord Belstead.)

On Question, Amendment agreed to.

LORD BELSTEAD

I beg to move Amendment No. 282M.

Amendment moved— Page 102, line 29, at end insert ("for the purpose of securing that the ballot will be properly conducted and that the voting in the ballot will be kept secret")—(Lord Belstead.)

On Question, Amendment agreed to.

Clause 140, as amended, agreed to.

Clause 141 [Supplementary provisions as to conduct and result of ballot]:

On Question, Whether Clause 141 shall stand part of the Bill?

LORD GARDINER

This is the last clause which refers to the result of a ballot. When I raised this question on Clause 135 I expected to be told what precise Amendment the Government were going to put down at a later stage. One must consider the Report stage. It is three weeks since the noble Lord, Lord Drumalbyn, wrote to me. I hope now that we have reached this clause he may be able to give me at least some indication of the thinking of the Government on this point.

LORD DRUMALBYN

I am grateful to the noble and learned Lord for giving me yet another opportunity to reply. I hope he will be indulgent for I am afraid I am not yet in a position to answer him. I hope to he able to write again to the noble and learned Lord before Report stage.

Clause 141 agreed to.

Clause 142 [Conciliation officers]:

On Question, Whether Clause 142 shall stand part of the Bill?

11.7 p.m.

LORD STOW HILL

This is an important clause, in the sense that it provides for the appointment of conciliation officers. I think one ought not to part with the clause without some statement by the Government as to their intentions about, broadly. how many conciliation officers will be appointed. What, in general. should be their functions? Where shall they operate? Shall they have different appointments in various parts of the country? Shall they have special areas under their responsibility'? In particular, I should like to know roughly the number which the Government estimate it will be necessary for them to appoint.

If one looks at the Bill, one finds they are given extremely important functions. Let us take one function, that of intervening in cases where claims are advanced under Clause 102 of the Bill in respect of unfair dismissals under Clause 20. The Schedule that we have already passed, as the Government will know, enables the case which is brought before the industrial tribunals for compensation for unfair dismissal to be adjourned in order that a conciliation officer may intervene and offer his services to try to bring the parties to an accommodation. That is a very important and valuable function. It is the more so when we bear in mind the discretionary nature of the jurisdiction conferred on industrial tribunals. A feature of this clause which I think requires some explanation is subsection (6) which says that anything communicated to a conciliation officer may not be used in evidence (except with the consent of the person who made the communication) in any proceeding before either the Industrial Court or an industrial tribunal that is to say, it may not be given in evidence without that consent before any of the courts that are set up under the terms of this Bill.

I suppose that: in the case of any other court there is nothing to stop anyone serving a subpoena upon a conciliation officer who, if he is put into the witness box, can be asked questions (which he will certainly be obliged to answer if the learned judge thinks an answer would be relevant) about anything communicated to him. It seems to me that this double standard of confidence is very difficult to explain. It is difficult to understand how it can be sensible that his mouth can be closed by lack of consent in any of the tribunals set up under this Bill, whereas he is bound to say everything imparted to him by any person who spoke to him in confidence if he is subpoenaed to appear in any other court.

It is undoubtedly the case that he must be subpoenaed to appear in another court. If one looks at Clause 108, one finds that the Lord Chancellor is given powers to transfer to the industrial tribunals jurisdiction which at the moment would be largely invested in county courts, and in some cases in the High Court. It seems very difficult to understand how the obligation of the conciliation officer either to keep his counsel or to disclose what was said to him could depend on whether the Lord Chancellor exercised his power to transfer proceedings to the Industrial Court, and upon the accident of whether the officer was called as a witness before an industrial tribunal or before a county court. That seems to be rather an unjustifiable anomaly. One would have thought that his obligation to maintain silence would apply either in all courts or in none.

I feel very reluctant to extend in any sense the right of persons who are brought before courts of justice to refuse to answer questions. Legal professional privilege, the secrecy which attaches to what passes between a client and his solicitor and the barrister who represents him, is, I should have thought, absolutely essential. The question of what could be disclosed by, say, a priest or a doctor or someone of that sort, or what must be disclosed by a journalist, has frequently been discussed in the courts. My general approach is that disclosure should be complete, because without disclosure injustice might result. It is for that reason that I regard this question which arises under subsection (6) as one of principle and of importance. Before we part with this clause I should be very grateful if the noble Lord, Lord Windlesham, would give me the Government's views on this, and in particular the reason which he thinks justifies the secrecy which in some circumstances is imposed upon the conciliation officer.

LORD DIAMOND

There is one further point that I should like to add to what my noble friend Lord Stow Hill has said, and perhaps the noble Lord, Lord Windlesham. could deal with it at the same time. I see that under subsection (5) the Secretary of State may direct a conciliation officer to perform services in relation to claims for damages. Conciliation officers should be conciliation officers. Nobody who becomes involved in assessing damages as between the parties will ever remain an independent conciliation officer able to carry out his full functions of conciliation. He will be regarded with suspicion or hostility by one side or the other, and conceivably by both sides. Is it not therefore a pity that these duties are put upon conciliation officers?

11.14 p.m.

THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESHAM)

I welcome the opportunity to make a short statement on the subject of conciliation. As the noble Lord, Lord Stow Hill, rightly says, this is one of the central features of the Bill; indeed, it is included in the general principles in Clause 1. A little later in the Bill, where an application has been made to the N.I.R.C. under Clause 35 about a non-existent or defective procedure agreement, or under Clause 43 for recognition as the sole bargaining agent, the Secretary of State again is enjoined to promote agreement between the parties. This means by recourse to conciliation. Under Clause 80 the Registrar also must promote a settlement of complaints referred to him without the matter becoming the subject of complaint to the tribunal. And of course the tribunals and the Courts will afford the parties the opportunity for conciliation, and in practice will encourage this.

The reason for this emphasis on conciliation is that we believe conciliation is one of the best available methods for settling disputes. It has the added advantage of avoiding unnecessary litigation, as we have said on a number of occasions. The legal institution, the tribunals and the Court is there as a last resort, when the parties have not been able to reach agreement between themselves.

The noble Lord, Lord Stow Hill, asked about numbers. The explanatory financial and staff memorandum at the beginning of the Bill estimates a figure of 190 extra staff of the Department of Employment; but how many of the 190 will be conciliation officers will depend on how the work builds up. The noble Lord asked whether they would be centrally or regionally distributed. I can tell him that some will be based on central London and others will be regionally based in each of the nine regions.

The noble Lord went on to ask me about subsection (6), which says that the consent of a person who gives information to a conciliation officer must be obtained before that information is used in court. The reason for this is quite straightforward. It is to try to avoid the case reaching the tribunal, to allow the conciliation officer to talk as early as possible and to have as much information as possible, in the hope that the dispute will not need to go before the tribunal. It was felt that if the parties to whom the officer is talking are worried all the time that what they say may be reported verbatim to the court, they will wait until they get to the court and then say what they have to say in front of the members of the tribunal. It was felt that the provision in the clause would make the task of the conciliation officer easier to perform.

The noble Lord, Lord Diamond, asked me about subsection (5), and he expressed some doubt whether it was desirable to involve the conciliation staff in breach of contract of employment cases under Clause 108. I am informed that at the moment, although it is on an informal basis, conciliation does take place on breach of contract of employment cases, most frequently on entitlement to notice and accrued holiday pay on termination of employment. These lend themselves to conciliation, and the staff have had some success in these areas. We think it would be rather anomalous if in future conciliation officers dealing with cases of unfair dismissal were prevented from dealing with breach of contract of employment claims arising out of the same circumstances.

LORD BEAUMONT OF WHITLEY

We are deeply indebted to the noble Lord, Lord Stow Hill, for the points he has raised under subsection (6) and it does not seem to me that the noble Lord, Lord Windlesham, has begun to answer the points raised. I am not a lawyer, but I have been involved in the Convocation of Canterbury, where the whole question of whether anyone under the law of England could be allowed to refuse to give evidence came up time and again on the question of the secrecy of the confessional. The compromise which has been arrived at in practice seems to be one which casts the utmost discredit on both Church and State. Neither of them has faced up to the real problem involved.

The noble Lord, Lord Stow Hill, will correct me if I am wrong, but I have always understood that one of the main problems in this situation, and in a number of other situations which have arisen with regard to journalists and others, is that it has never been written into the law of England that any evidence can be inadmissible in a court of law. That this should be written into a subsection of a clause in the Industrial Relations Bill seems to me to be totally extraordinary. If I am wrong in my major assumption—and I gather from the gestures of the noble Lord, Lord Stow Hill, that I am not absolutely wrong—this is a very new departure in the law of England. I would be very interested if we could be told in what other circumstances and what other Statutes such provision is made that communications should be private and not produced to the courts of the country, and whether this particular exception which seems to be here is as grave as it seems to me, and as I think it also seems to the noble Lord. Lord Stow Hill. I think we are entitled to a very serious answer on this point.

LORD WINDLESHAM

One might think from listening to this discussion that we are debating subsection (5). There was an Amendment on the Marshalled List to leave out subsection (5). The noble Lord did not move an Amendment on subsection (5), though the noble Lord, Lord Diamond, referred to the substance of it; but instead he asked a number of questions about subsection (6). I gave what I believe to be a perfectly common-sense answer—that it will make the task of the conciliation officer easier. If the noble Lord, Lord Beaumont, feels that there is a great issue of principle here, I should need notice of it. I take his point: I think we should look into this carefully and tell him in a little detail what the position is. But I think he will appreciate that it is a little difficult to do that when there has been nothing at all about this subsection on the Marshalled List, although there was a previous one in the Amendment which has been withdrawn.

LORD BEAUMONT OF WHITLEY

I entirely take the point put by the noble Lord that it is a little difficult for him, particularly in the absence of the noble and learned Lord Chancellor, but I put to him that although he is, in my view, absolutely right in saying that this is absolute common sense—and I would entirely agree with him on that—I still believe that it is a completely new departure in the whole of the law of England, as I have understood it, and that therefore we are entitled to an explanation of it whether or not we have given notice—not at this particular moment, but at some fairly near moment in the course of the Committee stage of this Bill.

LORD DIAMOND

May I say one word to the noble Lord, because I am sure he was speaking out of his knowledge of precedents of your Lordships' House of which I am ignorant. But if he were to say to me, in relation to a question I raised without notice on the Question, That the clause stand part, which is in plain English and which raises a totally new issue, that he was not prepared to deal with it because I had not given him notice that I wanted to raise it, then I should regard that as one of the major differences—and expected differences—between the two Houses. That is putting it extremely bluntly. I have already indicated that an Opposition is unable to do its job properly if, when towards the end of the Committee stage, the Government have not yet disclosed their mind with regard to issues raised in the Bill so that an Opposition can point its required Amendments precisely and with polish at the Report stage. The noble Lord, Lord Beaumont, is as usual generous and chivalrous to a degree. I regret that I do not rise to his heights of chivalry or generosity.

LORD WINDLESHAM

The noble Lord may not rise to Lord Beaumont's heights, but I think he is a little harsh in his remarks. I have not refused to give an explanation: I gave quite a full explanation of what I am informed is the purpose of this clause. If I may say so, it seemed to me rather a good explanation of the basis of conciliation and how it will work. The noble Lord, Lord Beaumont, feels that there is a new departure in the Common Law. I am just doubtful when I hear these words in Committee—"a new departure in the Common Law". I think he will find very similar words in a Statute very close to my heart, the Race Relations Act 1968, Section 24. So I do not think it can be a completely new departure. However, I take the noble Lord's point. I think this is something that we should look at. I will certainly do that and will communicate the results to him and to other noble Lords.

Clause 142 agreed to.

Clause 143 [Effect of strike notice ]:

11.25 p.m.

LORD DIAMOND moved Amendment No. 282C: Page 104. line 33, at the beginning insert (" Neither )".

The noble Lord said: In moving this Amendment it might be convenient to discuss at the same time Amendments Nos. 282D, 282E, 282F and 282G; they all deal with the same point. It is an important point, but it is quite straightforward and I can put it shortly. This clause gives, I think for the first time in a Statute, some definition, although a bit of a backhanded one, of the right to strike. It is excessively limited, and we seek to widen it by the plain and simple words of the Amendment. We hope that the Government will share our view. I beg to move.

LORD WINDLESHAM

I am afraid that this is not a straightforward clause, and the Amendments which have been tabled, for reasons that I will explain, will not make it any better: indeed, they would have the effect of adding confusion. I think I am right in saying that these Amendments are the same as those which were moved in another place, but not debated, before the new subsections (2), (3), (4) and (6) were inserted by the Government. The drafting is defective, because it confuses the effect of giving notice to strike with the effect of actually going on strike. These are two different concepts. If noble Lords look at Clause 143, on page 104, they will see that they are separated. The first one is in subsection (1), and the second in subsection (2). We believe that this is much clearer than trying to wrap up in one single section a concept that is already none too straightforward. Perhaps I should therefore explain what this clause is all about.

The purpose of subsection (1) is merely to set out the legal effect of giving due notice, which is defined in subsection (5), of intention to take part in a strike; that is, that such notice, unless expressly provided otherwise, shall not be construed as a notice to terminate a contract of employment or of repudiation of that contract. This arises out of the decision of the Court of Appeal in the well-known case of Morgan v. Fry. The Master of the Rolls in that case said that a notice to strike could not be unlawful in circumstances where a similar notice to terminate a contract would be lawful.

The noble Lord in moving this Amendment has spoken to the other Amendments, and perhaps I should comment briefly on them. Amendments Nos. 282C and 282D merely seek to do in subsection (1) what is already contained in subsection (2). That the approach advocated by the Amendment is not workable is shown by the fact that a strike may or may not be a breach of contract, but it cannot possibly be a notice to terminate a contract, as the wording of Amendment No. 282D implies. That is why subsection (1) of the clause deals purely with the effect of giving due notice of intention to strike, while subsection (2) deals separately with the effect of going on strike, after due notice has been given, by removing the words "not, unless it otherwise expressly provides".

Amendment No. 282E would establish that a due notice to strike can never be construed as a notice to terminate a contract or as a repudiation of the contract. This would apply even if the notice stated explicitly, "We give you due notice to terminate our contracts by going on strike" or, "We give you due notice that we intend to repudiate our contracts by going on strike". While it is true that this is not the usual intention of people going on strike, in the occasional instance where it is the purpose there seems no reason why this clause should over-rule it.

Amendments Nos. 282F and 282G would also be out of place in subsection (1). There cannot be a breach of contract as a result of a notice of intention to take part in a strike although there may be repudiation. The proper place for references to breaches of contract is in subsection (2), dealing with the situation when an employee takes part in a strike. Noble Lords will see that breaches of contract are referred to in subsection (2).Subsection (2) along with subsections (3), (4) and (6). was added in another place after the Amendments were tabled, and it is understandable that the Amendments do not fit the clause as it has been re-drafted. I hope with that explanation noble Lords will see what this particular clause is concerned with, and how it takes into account the decision of the Court of Appeal in the case of Morgan v. Fry.

11.33 p.m.

LORD DIAMOND

I am grateful for what the noble Lord has said. I should like to seek further clarification at this stage and then I will have it on the Record, consider it carefully and take advice about it. I am seeking a very clear statement by the Government that the Bill means, and is intended to mean (or it has to be altered in order to mean) that a notice to strike by itself (not in-including, as the noble Lord read out in his examples, a notice to strike and terminate the contract, but a pure notice to strike) does not mean in any case a breach of that contract. If the noble Lord can say that in those simple terms I shall be grateful.

LORD WINDLESHAM

What I can say in simple terms is that a notice to strike cannot be a breach of contract. The act of going on strike can be a breach of contract, but not giving notice. In subsection (2) the Bill says that where somebody, having given due notice of their intention to strike, actually comes out on strike no action can then be taken against him for breach of contract or any proceedings in tort, or under Clause 5 of the Conspiracy and Protection of Property Act 1875, or under Clause 92 of this Act.

LORD DIAMOND

I am grateful for that assurance. What I further understand from what the noble Lord is saying is that the act of striking cannot be a breach of contract leading to these proceedings unless it was an express term in the contract which is, I take it, what Clause 143(3) means.

THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE)

After due notice.

LORD WINDLESHAM

After due notice.

LORD DIAMOND

Unless it was a breach of an express term of the con- tract without giving due notice; and if it is without giving due notice then the act of striking can be a breach of that contract, but not otherwise?

LORD WINDLESHAM

The whole of Clause 143 refers to where due notice has been given, not otherwise. Subsection (3) is a little stiffer. It says that in certain contracts there is an obligation to do more than give due notice. There may be certain procedural steps to be gone through. Furthermore, there may be a no-strike clause for a period of, say, two years. Therefore there may be additional requirements beyond giving notice, and that is what subsection (3) refers to.

LORD DIAMOND

I repeat my gratitude to the noble Lord. I shall consider carefully what he has said. I seek leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

THE DEPUTY CHAIRMAN OF COMMITTEES (LORD HENLEY)

Before I call Amendment No. 282P, I should draw your Lordships' attention to the fact that if this Amendment is agreed to I cannot call Amendment No. 282A.

11.36 p.m.

LORD DIAMOND moved Amendment No. 282P: Page 105, line 7 leave out subsection (3).

The noble Lord said: I move Amendment No. 282P for the sake of probing and getting further information on the important aspect which the noble Lord just referred to. I do not think any Member of your Lordships' Committee would doubt that he was dealing with a very important issue indeed. It is one which has, I am informed, not previously been given statutory effect or description. What the noble Lord has just said was that this is a stiffer provision under subsection (3), and I understood exactly what he was referring to. What I now wish to raise is the question where a collective agreement is an "agreement" in inverted commas; that is to say, the new type of agreement which the Government have created whereby one is deemed to have agreed to something which one totally disagrees with. That is, where an agreement is imposed on one, which can happen under previous clauses of the Bill, and it is deemed to be an agreement. In those circumstances, could it arise that such an agreement included a term of the contract referring to a period of service without striking, so as to make the act of striking a breach of that agreement?

LORD WINDLESHAM

The whole of this clause refers only to contracts of employment; that is, the individual relationship between the employer and the employee. It does not affect collective agreements as such. Therefore, any provision which has been negotiated in a collective agreement or any Clause 39 order which is an enforceable contract, has to he taken in, as it normally would be I think, to the individual contract between the employer and the employee. So this clause can come into effect only when there is a contractual relationship between the employer and the employee. On the Government Amendment—that is, the next Amendment—I shall have a little more to say about this matter, because we are proposing to remove the words in parenthesis from subsection (3) for a reason which I can explain.

LORD DIAMOND

In the hope that what we are about to hear will be welcome or helpful news, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD WINDLESHAM moved Amendment No. 282A: Page 105, line 10, leave out from (" agreement") to ("excluding") in line 12.

The noble Lord said: I beg to move Amendment No. 282A in the name of my noble friend Lord Drumalbyn. The substance of Clause 143 is not altered by this Amendment. The clause provides that due notice to take part in a strike is not to be taken as notice to terminate or repudiate the contract of employment, as I have explained. Subsection (3), to which this Amendment relates, withholds protection afforded by subsection (2) if the strike action is in breach of a no-strike clause incorporated in an individual contract of employment, including one incorporated by a legally enforceable contract so constituted by a Clause 39 Order. This Amendment is consequential on the Government Amendment No. 287B, which provides for the introduction of a new clause after Clause 157, which defines "collective agreement" and "procedure agreement". Subsection (3) of the new clause provides that wherever "collective agreement" occurs in the Bill it will be taken to include any provisions which are regarded as a legally enforceable contract by reason of an order under Clause 39. The separate reference to such contracts which is at present in addition to the reference to "collective agreement" in subsection (3) of Clause 143 will thus become unnecessary.

The Committee will recall that the Government are moving the definition of "collective agreement" out of Clause 32, where it is at the moment, into the definitions part of the Bill because some people found the original location in Clause 32 confusing and difficult to find. So that is the reason for removing the reference in this part of the clause under discussion. I beg to move.

LORD DIAMOND

If I have understood the noble Lord right it is not welcome news at all; it is merely removing what would be otherwise redundant. It has been said elsewhere, so there is no need to say it here, and certainly there is no need to say it twice. Redundant, otiose or supererogatory: in none of those three cases is it welcome news. What the noble Lord is saying is what I feared was the effect of this subsection; namely, that an "agreement" (in inverted commas)—meaning an arrangement imposed upon you—can include (I shall be delighted if the noble Lord will tell me I am wrong) a provision, under which a no-strike clause is involved, as a result of which it is a breach of that contract to strike. What I am concerned with is getting a clear statement from the Government of the limitations on the freedom to strike. It is a very important issue and one wants to know exactly what the Bill has to say and what the Government wish it to mean. Am I right in my construction of what the position will be, arising out of this Amendment?

LORD WINDLESHAM

No, I do not think this alters the position at all. If we go back to the earlier part of the Bill we recall that the imposed procedure is at the end of a very long road. The words, I think, are "non-existent or defective procedure agreement", and various steps, including conciliation, that we have just been discussing, have to be gone through. The C.I.R. are then asked to come up with a proposed agreement to which they hope that the parties will agree. if the parties do not agree, the C.I.R. make their recommendation to the Court, and the Court can impose that on the parties as a legally enforceable agreement.

As I was saying earlier, if the terms of that agreement were then taken into the contract of employment between the individual employee and the individual employer, they might well have the effect that the noble Lord says. It would depend upon whether or not the C.I.R. had recommended that a term of this sort was in their view necessary. If they did, and if it was then taken into the individual contract of employment, as one would assume it would be, it would then have the effect that the noble Lord has referred to in subsection (3). But that situation is not altered by the Amendment that. I have moved.

LORD DIAMOND

I am very grateful to the noble Lord, because the position is now quite clear: it is not altered by the Amendment. I raise it on this Amendment, and. I did not raise it earlier, as I did not know what the noble Lord was going to say on this Amendment. What is absolutely clear is that the right to strike can be limited by an arrangement imposed upon a body of workers which is euphemistically called an agreement. That is what the noble Lord has just said.

THE LORD CHANCELLOR

I am not sure this is quite right. Perhaps I am talking out of turn, but I think the difficulty lies in the difference between the two phrases "collective agreement" and "procedure agreement". I find it more convenient to look at the text as printed because it happens to be to my hand. A collective agreement is one of two things: it means an agreement which is either an agreement prescribing, wholly or in part, terms and conditions of employment, or a procedure agreement, or both. Under Clause 35 the Secretary of State's powers, which set in train the particular course of events which the noble Lord is referring to, relates to procedure agreements and not to collective agreements as such. The outcome of it therefore remains a procedure agreement, and in order to look at what can be in a procedure agreement one looks at the definition clause. I am not quite persuaded— I will see that this is considered—that the noble Lord has not put more into the Bill than is intended to be there, or is there, because the sequence of events prescribed in Clause 35 is, as I understand it, limited to defective or unobserved procedure agreements and not to collective agreements as such.

LORD DIAMOND

I am grateful to the noble and learned Lord because he is helping us to do our job of finding out what is in the Bill and in the mind of the Government. I am not at all surprised to be told that a procedure agreement which can be imposed upon one cannot, in the nature of things, include a term of employment such as I am complaining about.

THE LORD CHANCELLOR

I see the point.

LORD DIAMOND

But the noble Lord. Lord Windlesham, used words which seemed to me to say it could. The noble Lord may have misled himself, or misled me, or may have been quite right, but certainly what he said in his last speech but one, as I understood it, was that it could in certain circumstances if the Court thought right and appropriate. The agreement which would then be subsumed into a collective agreement could include, for example, a term of no strike for three years, under which circumstances a worker would have imposed upon him a severe limitation on his right to strike by an arrangement which, so far as he was concerned, was no agreement but was something imposed. I do not want to pursue it any further unless the noble and learned Lord wants to say anything. I am grateful for what has been said, and I would like to read about it in Hansard and come back to it at a later stage.

THE LORD CHANCELLOR

I intervened, possibly wrongly because I think my noble friend may have been better acquainted with this than I am, but my understanding of it was that a collective agreement can contain terms of employment as such. A procedure agreement does not; it is confined to the definition clause which is contained in Amendment No. 287B:

1. "(a) machinery for consultation with regard to, or for the settlement by negotiation or arbitration of, terms and conditions of employment;
2. (b) machinery for consultation with regard to, or for the settlement by negotiation or arbitration of, other questions arising between an employer or group of employers and one or more workers or organisations of workers;
3. (c) negotiating rights; "

I do not think this is altogether easy, and this is why I am not being dogmatic. As I read that, I understand a procedural agreement as excluding the kind of term in which the noble Lord, in the questions that he is putting, is particularly interested. If he looks back at Clause 35, he will see that the sequence of events which the Secretary of State sets in train, and which is ultimately sanctioned by an order of the Court, relates to a defective or unobserved procedural agreement and not to a defective or unobserved collective agreement. Having said that, I would rather look at it again in order that I may be able to retract if I am wrong. I think that the noble Lord has got my point, and I think I have got his.

11.51 p.m.

LORD GARDINER

It is probably too late at night. There was a time when I thought I understood what the Bill was saying. The position at the moment is that trade unions continually enter into agreements on behalf of their members. Indeed, that is one of their main tasks. At the moment, no trade union, in the eye of the law, has any power to do anything of the kind. That is right, is it not? It has always been held by our courts that no agreement made by a trade union on behalf of its members is binding on its members. The reason is a very simple one. If you want to know whether something a limited company has done is infra vires or ultra vires, you look at its articles of association; and the courts have always said that if you want to know whether what a trade union has done is intra vires or ultra vires you look at its rules. I speak with deference to those who know a great deal more about this than I do. I have seen a great many rules of trade unions, and I have never seen rules of a trade union which gave them any authority to enter into any agreement binding on their members.

There was a case which came before the Court of Appeal which is rather typical of everything we are discussing here. It was a case of an employer who decided to follow up his legal rights, and it shows the difficulty you get into when you try to bring the law into these matters. It was a very simple case in which the miners had been promised during the war that if they did a six-day week during the war they would do a five-day week after the war, and so the members of the N.U.M.W. did. But the deputies, the safety men, who gave orders to the miners, being a small union, got a rather poor agreement. The miners were told that they need not work on Saturdays, but if they did they would get overtime. They said that was all right. So far as the deputies were concerned, they were told that they had to work on Saturdays; and that they would work at an inclusive flat rate; and they got no overtime at all. They put up with it for 15 years, and then the deputies in a pit in Derbyshire said, We are fed up, and we refuse to work on Saturdays any more.". There were 84 of them. Thereupon the National Coal Board took out 84 High Court writs, and sued them for damages for the loss of the profit they would have made on Saturdays, because without the safety men the whole pit could not work.

Sensibly, both the N.U.M.W. and the National Coal Board agreed to take one test action at Derby Assizes. There were many issues, but one of the issues was whether the agreement made by the Union was binding on the man who was chosen as a test case, because he voted against it at his branch meeting. The Court of Appeal found that it had never been held that any trade union could make an agreement binding on its members, and they declined to do so. The judge at Derby had found for the National Coal Board and awarded damages, which I think were something just over £100. The Court of Appeal, while upholding the judgment, said the measure of damage was wrong, and the National Coal Board on the evidence could have found a deputy, so they reduced the damages to the cost of a deputy for a day, which was £2 18s. 3d. Whether the miner ever paid his £2 18s. 3d., I do not know. The union no doubt paid the costs. I never heard any more of the other 83 actions. That shows what happens when people try to decide industrial disputes by law. I draw attention to it here only because the Court of Appeal were clear that the trade union had no power to make an agreement.

If I understand Clause 33 rightly, its effect is that a trade union, which so far in the history of our law has had no power to make a contract on behalf of its members, is to be presumed when it makes a procedure agreement irrevocably and conclusively to have the authority of somebody to make a contract to bind him, when in fact it does not have that authority. Now when we come towards the close it appears that if there is a procedure agreement, and it is a term of that procedure agreement that there shall be no strike for two years, or no strike until the procedure agreement has gone through, that also is to be incorporated into a contract which will bind the members.

THE LORD CHANCELLOR

With respect, that is not what I said. It is the opposite of what I said, and I think it is also the opposite of the fact. I think the noble and learned Lord is really blinding himself with science. If he looks at the proposed definition on page 9 of the Marshalled List, he will see the definition of "collective agreement which is approximately the same as it was in the old Clause 32. It is of course an essential part of that definition that, in addition to being an agreement between a trade union and an employer or an employers' association, collective agreement must be prescribing the terms and conditions of employment of workers of one or more descriptions, or an agreement or arrangement relating to one or more of the matters specified in subsection (5)", which refers to a procedure agreement. In other words, it really means the same as the old definition in Clause 32. So I was right in saying that a collective agreement can be one of two kinds. Either it can be in relation to the terms and conditions of employment, or it can be a procedure agreement.

Taking the first case first, I will assume for this purpose that the noble and learned Lord was entirely right when he said that, if all that happens is that a union agrees with an employer that the rate of wages shall go up to £10 a week, that is not at that stage an agreement of employment between the employer and his individual workmen. If, thereafter, that agreement is kept and wages are raised to £10 a week, instead of remaining at £5 a week, to use ridiculous figures, and a workman works at that different rate, then obviously a new contract of employment on those terms is made. So far so good. This must be plain, and this is the same with hours and other conditions of work.

On the other tack, if you look at the definition of "procedure agreement", your Lordships will see that it does not relate to that sort of case at all. It relates to the machinery for negotiation between the employers and the union, or between the association of employers and the association of unions; and that, in the nature of things, is not something which is imported into the individual contract of employment, because the individual workman does not necessarily work on those terms. Although I cannot immediately point to the clause in the Bill, it fits in with that Part of the Bill which points out that, when a procedure agreement which will be binding if this Bill goes through is made, whether it is made by negotiation between the parties or is imposed by an order of the Court, then all that the union is bound to do is to do its best to see that its members perform the agreement. But it is not at that stage, and cannot be in the nature of things, as I have so far said it—and it was at that point that I said I hoped I would be given a chance to correct myself if I turned out to be wrong—a term of the individual workman's contract of employment.

I hope that I have made my point plain. As I say, I am not always sure that I am right, but I believe myself to be right. I think I have got the point which is made on the other side, and I hope that now the other side have got the point I was trying to make to them. If either of us turns out to be wrong, perhaps we shall be told as these pieces of paper pass to and fro whether what I have been saying is nonsense or not.

12.1 a.m.

LORD STOW HILL

I really do not want to prolong this fascinating discussion except for one purpose. Would the noble and learned Lord be so good, when considering the particular question which has been raised, to consider with it this further point? If I am right in the suggestion I make, it may be that the Government do not achieve their purpose. If you give due notice that you are going to take part in a strike, you do not by so doing commit a breach of contract. That is subject, as we have been saying, to subsection (3), which says that if there is a term in your contract which either expressly or impliedly says you are not to strike, then you do commit a breach of contract. My noble friend Lord Diamond pressed the noble Lord, Lord Wind le-sham, to say whether he was saying that subsection (3) related only to an express term. The noble Lord did not say "Yes", and I should have thought he could not have said"Yes" because there is no limitation to an express term that can be an implied term.

I can put quite shortly to the noble and learned Lord the point that I should like him to consider. It is that if you engage anybody to work for you for, say, a month, it is an implied term that he will work, not that he will strike. That is the short point. If that is so, when he strikes in that situation does he not automatically conflict with an implied term of that contract? As I said, I do not want to prolong this discussion, but I should be grateful if the noble and learned Lord would consider that point. If I am right it means that the Government may not have achieved their purpose by the language they have used in subsection (3), and I feel sure the Government will be ready to change it.

THE LORD CHANCELLOR

Obviously, that is basically a question of drafting. It may be that the drafting is imperfect, and I will see that the point is considered. I think that is all I can say about that. I think it is not a good point, but I need not go in detail into why because ultimately it is simply a question of using the right words.

LORD STOW HILL

I quite agree, and I am much obliged for what the noble and learned Lord has said.

LORD DIAMOND

May I add just this? I hope that the noble and learned Lord will find it convenient to give this matter fairly early consideration so that he can write to me as soon as possible having regard to the rapid progress of the Bill.

THE LORD CHANCELLOR

I think the best course would be for either myself or my noble friend who started this discussion to write to the noble Lord as soon as we get a proper view as to the extent to which, if at all, I am right.

On Question, Amendment agreed to.

LORD DIAMOND moved Amendment No. 282Q: Page 105, line 14, leave out subsection (4).

The noble Lord said: Subsection (4) requires a very full explanation. It says: Nothing in subsection (2)"—

which was, as I might call it, the relieving subsection— shall be taken to exclude or restrict any right which an employer would have apart from that subsection to dismiss (with or without notice) an employee who takes part in a strike.

It seems to me that this is a very plain subsection, and makes the matter utterly unacceptable. It gives the employer a new right, which he previously did not have; and far from the clause continuing on what I thought was to be its happy course of giving statutory form to the workers' right to strike, it proceeds first of all to limit their right to strike in a number of ways—and possibly the way we have just been discussing in addition —and then proceeds to reiterate the employer's right and to give him yet a new right. It does not even say that nothing shall restrict his right to give notice to terminate an employment. But it gives him a right to dismiss (or does not restrict any right he has to dismiss) an employee who takes part in a strike. Before getting over-heated, may I ask the noble Lord to be good enough to tell us what this subsection means; then I will tell him what I think of what he has told us.

LORD W1NDLESHAM

I will certainly do that because I think the noble Lord has approached this whole clause with a misconception. He spoke earlier, and again just now, in terms that suggest he thinks the earlier subsections of the clause in some way give statutory recognition of the right to strike. That is not so. Subsection (1), which is the substantial subsection of the clause, is concerned with the effect of the strike notice. As I mentioned there is a decision of the Court of Appeal in the case of Morgan v. Fry that a notice to strike could not be unlawful in circumstances where a similar notice to terminate the contract would be lawful; and that is what Clause 1 states. In another place these additional subsections were added to spell out what happens when somebody acts on subsection (1); and subsection (2) describes what happens when somebody actually goes on strike. Subsection (3) refers to these additional terms and subsection (4) refers to the right of the employer to dismiss.

Let us now dwell on this point. Subsection (4) states that nothing in this clause over-ride,; the employer's rights in relation to dismissal which are contained in Part II of the Bill (in Clause 24) and elsewhere. We need to distinguish between the legal liability of an employee who goes on strike as regards civil action of the type mentioned in subsection (2) and the question of dismissals. The two are separate, and have to be kept separate in our minds if we are not to become confused. Where an employee has given due notice of his intention to take part in a strike and subsequently does so, he is then protected as regards proceedings for breach of contract and a number of other respects by subsection (2). But by withdrawing his labour, he is in effect refusing to fulfil his obligations under his contract. Thus, as a corollary to the right of the employee to say he refuses to work, we have the right of the employer to terminate his employment. This is the present situation. It is not affected by the Bill.

I should emphasise that subsection (4) does not assert that in each and every strike situation an employer necessarily has the right to dismiss. The legal immunity established by subsection (2) of this clause must not be presumed to over-ride any right the employer may have to dismiss a striker in a particular situation. The Committee earlier considered, on Clause 24, what would amount to an unfair dismissal in connection with a strike. What this subsection does is to make clear the underlying principles as regards dismissal; what constitutes unfair dismissal is not affected by this clause of the Bill.

12.10 a.m.

LORD DIAMOND

I take it that what the noble Lord was saying in his last two sentences meant that nothing said earlier in the Bill about the employees' rights in relation to unfair dismissal is affected by subsection (4) of this clause. That being so, I will do what I said I would do on previous occasions, and consider carefully what the noble Lord has said, and ask leave to withdraw the Amendment.

Amendment. by leave, withdrawn.

LORD DIAMOND moved Amendment No. 282H: Page 105, line 19, leave out from ("than") to end of line 21 and insert ("one week").

The noble Lord said: I beg to move this Amendment to line 19 which is in effect to substitute a notice period of one week. Whether the Bill as it stands is fair or not could be a matter of opinion, but whether or not it is workable cannot be a matter of opinion. As it stands, it is totally unworkable. It says in line 19: that due notice ', in relation to an employee, means notice of a duration not less than that which…he would be required to give to terminate his contract of employment. Take a normal factory where there are different categories of employees with different terms of employment and different terms of due notice, and consider how you are to have a strike. First you have to find out from every employee exactly what are the terms of employment, so as to find the person with the longest notice. That is virtually impossible. Then you have to give notice in respect of people whom you can reasonably expect to be entitled to one week's notice. Then you have to give notice to a person who may have entered into a contract under which he has agreed not to strike for three years; and so you have to give three years' notice in respect of the whole factory. It may not be quite so far-fetched as that, but there would be totally different periods.

So you would be in an impossible position, (a) to find out, (b) to give effect, and (c) to hold the position. Because what would happen would be that those with the shortest notice would press on those with longer notice that the strike should take place after giving the minimum notice in respect of the categories of employees with the shortest term of notice. It would be an impossibly difficult situation. The industrial atmosphere would be poisoned and the whole thing would be totally unsatisfactory. Therefore it is proposed that there should be a workable and sensible period, which seems to be one week. I should have thought that to give notice for one week was reasonable, and that is why I am moving this Amendment.

EARL FERRERS

Clause 143 provides what we consider to be reasonable protection to employees who go on strike after having given due notice of their intention to do so. Under the clause employees would not be liable for civil or criminal proceedings in respect of breach of contract. Nor would the organiser of the strike merit any liability under Clause 92. Subsection (5), to which the Amendment relates, imposes what we believe to be a reasonable qualification, that is that the "due notice" to be given of an intention to participate in strike action should not be less than that required to terminate a person's contract of employment.

The Amendment seeks to ensure that in all cases this should be a week. The Bill itself provides in Clause 17, by amending Section 1 of the Contracts of Employment Act 1963, that the minimum period of notice required to be given by an employee who has been continuously employed for more than 13 weeks should be at least one week. Therefore, in subsection (5) of this clause due notice has been defined as not less than the notice required to terminate the contract of employment. The great majority of employees anyway will only need to give due notice of a week under the provisions of the Bill. In that respect, therefore, I would suggest to the noble Lord that the Amendment is unnecessary. But for the employees who have less than 13 weeks' employment the Amendment would in fact seem to be restrictive, since it applies a minimum statutory period of due notice where at the moment none exists for the purposes of this clause.

We think it right that the clause as a whole should relate to the requirements of the employee's contract of employment. Subsection (2) refers to due notice which is given by or on behalf of an employee, and due notice should therefore in our view relate to that notice which an employee must give to satisfy the terms of his own contract of employment, whether this is applied by statutory enactment or whether it results from a voluntary agreement, and regardless of whether this may be for a greater or lesser period of notice than is envisaged by the Amendment. We believe it is correct and fair in this case that the terms of a strike notice should be in the same terms as those applying in contracts of employment.

12.16 a.m.

LORD DIAMOND

I am most grateful to the noble Earl for having said what is perfectly plain to everybody and adds nothing to the argument at all. He has not dealt with the point at all. Of course, I recognise that if a man is engaged for more than 13 weeks, he is entitled to a week's notice. What I am trying to put to your Lordships is that we are not talking airy-fairy stuff, but about a factory of people going on strike, and we cannot have individuals giving strike notices which work out at different periods. That is not a strike. If the Government say that that is the way it must happen, they are restricting by another way the right to strike. If that is what the Government want, let them say so. In a strike, the workers have to walk out together. It is not a case of the workers on one bench walking out in one week and those working on a second bench not walking out until a week after. That is not a strike. There has to be the same period of notice for all concerned. The question is. what that period shall be. The Amendment suggests the very reasonable period of one week.

The noble Earl is quite right in saying that those working for less than thirteen weeks are presumed, in the absence of an agreement, to give less than a week's notice. Some people would have to give only one day's notice of a strike. No doubt the vast majority would have to give a week's notice; but there are others who would have to give much longer periods, up to a very considerable time indeed. That makes an impossible situation, so the noble Lord must see our point that unless all can walk out on one date the Government are effectively preventing a strike from taking place, at all events on the basis of the benefits which attach to strikes where due notice has been given. Unless the noble Lord meets that point, he is not dealing with the Amendment at all. If he wants to suggest a different period, say three days instead of a week, well and good; but we must have one period for all.

12.20 a.m.

EARL FERRERS

I wonder whether the noble Lord is under a misapprehension—no doubt it is my fault if he is. He said that if this subsection stands as it does at present, the Government are inhibiting the right to strike. That is not so, because the right to strike is clearly laid down in the Bill, and also in Clause 124 it is laid down that nobody is compelled to work against his will in circumstances which he feels to be objectionable. He has, therefore, an absolute and implicit right to strike, and this particular subsection does not alter that at all. What it does is to say that in certain circumstances if a person strikes without due notice he may be caught for breaking his contract.

Let us take the example of a registered trade union and an official of that union who calls a strike, acting on behalf of his union. He may call a strike, and his people may come out on strike, irrespective of their contract of employment; and that is one of the benefits of registration, because if you are registered you can call your men out on strike and you cannot be sued for an unfair industrial practice. The case which the noble Lord may have in mind is that of an unregistered trade union. In many respects, this would be exemplified by a "wildcat" strike. The noble Lord shakes his head, but in fact if people who are not members of a registered trade union, and are not prepared to accept the protection which is given under this Bill, are prepared to call people out on strike, then under this clause they may find themselves held by their employers to be liable for breach of contract. But this does not inhibit their right to strike: all it means is that if they are a registered trade union they cannot even be sued for breach of contract.

LORD DIAMOND

The noble Earl is not advancing the argument at all. There is no point in pursuing it. The present position is that a worker could be sued for breach of contract for striking without having given notice corresponding to the term of his contract; but it never happens, as far as I know—never. The proposal in the Bill means that an unregistered union would effectively be denied the right to strike—that is the right to strike without incurring the damages resulting from a breach of contract, which would not apply to a registered union, because there is no period necessarily which corresponds to the due notice for all the individual workers in a factory and it would not be possible to bring all the workers out at one and the same time. That is no strike

That is the position, as I understand it. I do no want to delay the Committee by causing unnecessary walking through the Division Lobbies—indeed, I see that noble Lords opposite are not very numerous: I have no eyes in the back of my head. However, I want to make it perfectly clear that I regard this as a very serious matter, and were the hour a little earlier I should press the matter further.

THE LORD CHANCELLOR

Perhaps I may be allowed to say this to the noble Lord. What he says is completely fallacious, because he overlooks that in subsection (5) which he is attacking, as it stands, the notice must be not less than that which is the minimum notice for each employee. He probably has not much more experience of this matter than I have. The great majority of employees have relatively short notices. If he in fact has to make a simple case, two classes of employees who want to strike, one on a fortnight's notice and one on a week's notice, it is perfectly simple that they all give a fortnight's notice, and that is all right. But to pretend that that is to deny them the right to strike is absolute rubbish.

On Question, Amendment negatived.

12.26 a.m.

LORD DIAMOND: moved Amendment No. 282J:

Page 105, line 21, at end insert— (" ( ) Where due notice has been given by an employee of his intention to take part in a strike he shall have a right to strike and his action shall not he regarded as an unfair industrial practice.")

The noble Lord said: This Amendment seeks an explicit declaration it may be implicit in the Bill; I do not know—that a strike after due notice is not caught elsewhere in the Bill as an unfair industrial practice. That is the short point. I beg to move.

EARL FERRERS

If I understand the noble Lord correctly, he wishes for a clear undertaking that anyone who takes part in a strike will not be guilty of an unfair industrial practice. If that is so, I can give the noble Lord that assurance, because the question of an unfair industrial practice in relation to participation in a strike by an individual does not arise, as all unfair industrial practices refer to the inducement of a strike and do not refer to the practice of an individual taking part in a strike. I hope that with that the noble Lord will be satisfied.

LORD DIAMOND

I am grateful to the noble Earl, and would ask leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

On Question, Whether Clause 143, as amended, shall stand part of the Bill?

LORD DIAMOND

I do not wish to delay your Lordships, but merely to underline the fact, that must be obvious, that we are very unhappy about this clause. We shall read carefully what has been said, and particularly carefully what the noble and learned Lord is going to write to some of us, and will seek to put the matter into much better perspective on the Report stage.

Clause 143, as amended, agreed to.

Clause 144 [Race Relations Act 1968]:

On Question, Whether Clause 144 shall stand part of the Bill?

LORD BROCKWAY

I wish to ask certain questions on this clause before we pass it. I hope I summarise the clause correctly in this way. If a complaint is made to the Secretary of State, or the Race Relations Board or one of its conciliation committees, which has been, or could have been, presented to an industrial tribunal, if it goes to such a tribunal and the tribunal finds that there has been an unfair industrial practice on the ground, it may be among others, that the unfair practice was taken because of colour, race, or ethnic origin, the matter may then be referred to the Race Relations Board. It can only be referred in those circumstances. As a consequence of this clause, there is a confusion that two separate authorities are given the duty of deciding whether race discrimination has taken place. We have the Race Relations Board, and its conciliation committees, which have been established for this particular purpose, and which now have long experience; and it has been shown, particularly in the case of the conciliation committees with a personnel which is accustomed to this problem, that they have served a very useful purpose.

Now it is suggested that an industrial tribunal should intervene in the circumstances which I have described, and that a complaint would go to that tribunal rather than to the Race Relations Board or the committees of conciliation. I appreciate that other elements than racial discrimination may be one of the factors when a complaint of this kind is made. May I ask Her Majesty's Government to consider the suggestion that if racial discrimination is the only ground of complaint it should go directly to the Race Relations Board, or one of its conciliation committees, and that if there are other grounds the industrial tribunal concerned should ask the Race Relations Board to consider the complaint, and convey its decision to the industrial tribunal before the tribunal comes to a conclusion?

There is also the danger of the delay which appears to be involved in this procedure. A complaint must first go to the industrial tribunal and only if the complaint is not dismissed, or if it is found to have good grounds then it will proceed to the Race Relations Board. The time of that procedure must be long. This is recognised in subsection (3), which extends the time within which anything may be done under the Industrial Relations Act. It is quite clear that the delay of the complaint may be for a very considerable period indeed. I want to submit, first, that this may cause grievous frustration; but secondly, and more important, a serious injustice. Frustration by the procedure, by the delay, may be particularly felt by Commonwealth immigrants who are unfamiliar with our administration, and bewilderment may be caused among them. It may also be severely unjust. A worker may be demoted or dismissed. A man may be demoted if he proves his case before the industrial tribunal. Is there any provision by which he should not only be reinstated, but be given compensation for the period when he had been demoted wrongly? If he is dismissed, is he to receive compensation and be given the opportunity of reinstatement? I ask Her Majesty's Government seriously to look at the points which I have raised, and between now and the Report stage to consider whether this clause should not be reworded and amended in a way which can deal with the problems which I have put.

LORD CHAMPION

My noble friend has put some extremely important points in connection with this clause. I want to put a different one. The Consultative Document issued by the Department in connection with this whole Bill said that some of the proposals in this Document overlap with the Race Relations Act 1968 in relation to claims that dismissal by an employer, or discriminatory action by a trade union, whether registered or not, was due to colour, race or ethnic or national origins. Where the remedies to be provided by the Industrial Relations Bill are more generous to the aggrieved individual than those provided by the Race Relations Act, it is intended that the Government's proposals should take the place of the Act. It is proposed, however, that in such cases the Race Relations Act machinery should still be available for securing an assurance of no further acts of discrimination and for dealing with breaches of such assurances.

The only question I wish to ask in this connection—and I am hoping to get a satisfactory answer on the Record—is this. Does this clause completely give effect to paragraph 64 of the Consultative Document? I ask this because I can find nothing in the clause which appears to give effect to the Document's words about more generous remedies when a complaint is treated under this clause. This is a very short point, but I certainly feel that it ought to find its way into the Bill if it is not already there, because clearly the Government's original intention was to be generous in this matter. I think this, too, has some importance to add to those points which have been raised by my noble friend.

12.38 a.m.

LORD WINDLESHAM

I think I can give the noble Lord, Lord Champion, that assurance. When it investigates complaints of discrimination under the 1968 Act, the Race Relations Board attempts not only to find a suitable remedy, where the complaint is upheld, but also to ensure that there will be no further acts of discrimination by the same employer. Neither the industrial tribunal nor the Industrial Court will have powers to obtain an undertaking of no further discrimination on the grounds of race or colour, or ethnic or national origins. So this clause enables the Race Relations Board, where a tribunal or a court up holds a complaint and finds that the reasons for the action involve the complainant's race, colour, ethnic or national origin, to entertain a complaint with the limited object of securing a written assurance against any repetition of the act of discrimination, or to bring proceedings under the Race Relations Act where such written assurance has been broken. Therefore, the powers of the Race Relations Board to require the employer to cease to practise will not be overridden by this Part of the Bill.

I want to come back to what the noble Lord, Lord Brockway, said, because I listened with great attention and great sympathy to it—I always would listen in that way to him and to other noble Lords on this subject—and I find myself in the end coming down on exactly the opposite side to him. There is a real issue of the way in which we treat immigrant workers here. A good deal of thought has gone into this matter and I should like to explain our thinking. The object of this clause, as he and the noble Lord, Lord Champion. correctly said, is to avoid overlapping jurisdiction between the Race Relations Board machinery and the new industrial tribunal machinery in respect of complaints of unfair industrial practices. The cases where such overlapping would be most likely to arise in practice are complaints of unfair dismissal, but complaints of unfair treatment in respect of trade union activity are also covered. The clause provides that the Race Relations Act machinery shall not be used if the complainant is eligible to proceed under the new industrial tribunal machinery. If it is decided under the industrial tribunal machinery that racial discrimination is an element in a case of an unfair industrial practice, subsection (2) of this clause provides that the Race Relations Act machinery can be used, as I have just said, to obtain a written assurance from the employer against a repetition.

There are two reasons for this decision for taking the choice whether or not somebody should proceed via the Race Relations Act or what will be the Industrial Relations Act of 1971. The first is that the remedies available under the Industrial Relations Bill are somewhat more generous than those under the Race Relations Act. The noble Lord mentioned compensation; he mentioned re-engagement: he will find that the powers in this Bill are greater than in the Race Relations Act. But the second point—and this is the point of principle where I part company with him—is that where minorities in our society can be properly protected under legislation which is of general application to everyone, there is no great advantage to be gained in seeking to treat them as a special case. Public policy must move in this direction. We cannot in the future continue to say that there must be special procedures and special tribunals for minority groups. At the time when the two Race Relations Acts were passed that special protection was needed, but here there is an alternative. If an immigrant worker feels that he has a grievance—and it can only be an unfair industrial practice under the Industrial Relations Bill—and says "I have been unfairly dismissed", and it is on grounds of colour, he can go to the industrial tribunal; he can argue his case in the same way as his mate who is objecting to an unfair industrial practice on some other grounds.

It is for that reason that I feel on grounds of principle that it is very much better to approach this in the way the Government suggest in this Bill, rather than forcing the immigrant worker hack to his own procedure under his own Act, and tell him that that is where he must pursue his remedy, while other members of society pursue theirs in a different way.

LORD BROCKWAY

I appreciate what the noble Lord has said and the spirit in which he has said it. He has not dealt with one point; that is, to decide an issue of racial discrimination requires an extraordinarily sensitive person. They must be people who are selected for that purpose, and the members of the conciliation committees of the Race Relations Board have had experience which adds to their original capacity in this direction, and what I am suggesting is that the members of the industrial tribunal will not necessarily have that quality which is desirable when a person is judging cases of discrimination. It may be dismissal, it may be demotion in the job: they are unfair practices but they are based, if the complaint is on the ground of discrimination, on the fact that the complainant is of a particular colour or a particular race, and that judgment has to be made not by the kind of membership which you have in industrial tribunals. Surely it is much better that that judgment should be made by men and women who have been selected for that purpose because of their qualities, and who have had long experience of it.

LORD CHAMPION

I am not quite sure that the noble Lord answered my point. Under the Race Relations Act 1968, Section 22, damages may be awarded to someone appearing before the court, and the court …if satisfied that the act was done and was unlawful, may award—

1. (a) special damages or, in Scotland, damages for any expenses reasonably incurred by him for the purpose of the transaction or activity out of which that act arose; and
2. (b) such damages as the court thinks just in all the circumstances for loss of opportunity, that is to say, loss of any benefit which that person might reasonably be expected to have had but for that act."

All I was asking at the very outset was to be sure that Clause 144 of the Bill is actually more generous to a person in the position visualised than Section 22 of the Race Relations Act. I want to be sure that the Bill is more generous than the Act to the person who might appear before the tribunal.

LORD WINDLESHAM

I think the noble Lord will find that in practice it will be the same. The Race Relations Act talks about damages and the Bill about compensation, but the principles for estimating compensation and damages—I say this without taking counsel on it—would, I think, be the same. The common law principle behind the estimating of putting a financial sum on what somebody has suffered I would expect to be the same. But the noble Lord has put this detailed question to me and perhaps I should confirm in writing—and also to the noble Lord, Lord Brockway—what the position is. May I say to the noble Lord, Lord Brockway, that we must not overlook, and he certainly would not, the importance of conciliation in this and other fields. The Race Relations Board have been most notable in the way that they have taken a tiny number of cases before the court; they have managed to settle by conciliation in almost every case. In our long discussion on this Bill—we had an Amendment on this point earlier this evening there is great emphasis on conciliation, and the noble Lord will know from his own experience that the Department of Employment has a very high record in the conciliation field. These are the people we are talking about who would be engaged in conciliation where complaints have been made, and one would hope that in the majority of cases they would be able to settle the grievance before it ever went to the industrial tribunal.

Clause 144 agreed to.

Clause 145 [Redundancy payments.]:

12.48 a.m.

BARONESS TWEEDSMUIR OF BELHELVIE moved Amendment No. 282N: Page 106, line 36, leave out from (" complaint") to ("is") in line 37, and insert (" relating to dismissal").

The noble Baroness said: If it is convenient to the Committee, perhaps we might also discuss, because it covers the same point, Amendment No. 284C which is to Clause 146. The purpose of these two Amendments is akin to similar Amendments which have already been agreed by the Committee to Clauses 102 and 111. What they were designed to do, and what these Amendments are designed to do, is to give the same treatment to complaints about dismissal whether they are under Clause 5 or Clause 20, which is covered by Clause 102, which is referred to in subsection (1) of this clause. At the present time Clause 145 and Clause 146 only covers the provisions of unfair dismissal under Clause 20. Therefore, the first Amendment will ensure that when the Secretary of State is making regulations to deal with overlapping claims for redundancy payment under the Redundancy Payments Act and unfair dismissal complaints under this Bill, he will be able to apply them to dismissal complaints under both Clause 5 and Clause 20.

The second Amendment will enable the Secretary of State to make regulations in connection with the preservation of continuity of employment of a dismissed employee who has been re-engaged following a complaint about dismissal to a tribunal under either Clause 5 or Clause 20. I trust that noble Lords will agree that dismissal complaints arising under these two clauses should receive the same treat- ment. I therefore commend these Amendments to the Committee. I beg to move.

On Question, Amendment agreed to.

12.51 a.m.

LORD STOW HILL moved Amendment No. 284:

Page 107, line 17, at end insert— (" (4) No regulations shall be made under this section unless a draft of the regulations has been laid before Parliament and approved by resolution of each House of Parliament.")

The noble Lord said: I beg to move Amendment No. 284. Its object is to provide that regulations made under Clause 145, which can have the effect of altering an existing statutory provision, should be made only after they have been affirmatively approved by Parliament. I hope that I need not argue this particular provision at length, because a similar Amendment was proposed at an earlier stage of this Bill, I think at Clause 109, and the Government then accepted it in principle as being appropriate. I hope that, with that explanation, the noble Baroness will be able to say that the principle of the Amendment is equally applicable to Clause 145. and that the Government are prepared to accept it.

BARONESS TWEEDSMUIR OF BELHELVIE

I am sure that the noble and learned Lord, Lord Stow Hill, will be glad to hear that I am delighted to accept the Amendment, because I think that it does improve the Bill. We are glad that he has been able to put it forward.

LORD STOW HILL

I am grateful to the noble Baroness.

On Question, Amendment agreed to.

On Question, Whether Clause 145, as amended, shall stand part of the Bill?

LORD DIAMOND

I seek only one short explanation. Under subsection (2), any such regulations—the regulations to be made by the Secretary of State—may make such modifications of the Redundancy Payments Act 1965 as the Secretary of State may consider appropriate, including, (a) provisions excluding the right to a redundancy payment or equivalent payment,… This seems to me to be fairly Draconian, and I wonder whether the noble Baroness could explain what is in the Government's mind.

BARONESS TWEEDSMUIR OF BELHELVIE

I do not think that it is at all Draconian, and I hope the noble Lord, Lord Diamond, will not think so when I try to explain what is in the Government's mind. The protection provided by the Redundancy Payments Act 1965, and that provided by these provisions, are alternative safeguards for the employee. Therefore the employee entitled to compensation under the Redundancy Payments Act should not be entitled to the remedy provided by unfair dismissal provisions, or vice versa. The clause therefore enables the Secretary of State to provide, by regulations, for the recovery of redundancy payments that have been made in respect of a dismissal that is found to be unfair, and where no redundancy payment has been made in respect of an unfair dismissal none should be made. The same provision can be made for the recovery of rebates, which is referred to in the Redundancy Payments Act, in respect of dismissals that are subsequently declared unfair by the tribunal.

I should explain that we feel it would not be right to debar any worker from appealing against unfair dismissal just because he had received a redundancy payment in respect of that dismissal, as it is possible that an employer trying to dismiss unfairly might find it a less costly dismissal if his view of its being redundancy could not be challenged. It might result in a smaller payment to the employee, and the employer would receive a rebate in respect of it from the redundancy fund. It is for these reasons, in order to ensure that you cannot have it both ways under unfair dismissal and under the redundancy payment provisions, that this clause is inserted, and I suggest that it is not Draconian.

LORD DIAMOND

I am always gladly prepared to be persuaded by the noble Baroness, but not immediately. I can well understand that the noble Baroness's principle that you cannot have it both ways is one which would meet with approval, and by, "You cannot have it both ways" I take it that she means that you can have it one way or the other. Therefore, if you are going to get damages for unfair dismissal and you would otherwise be entitled to a large sum by way of redundancy payment, then the amount you get by way of compensation should be deducted from the amount you get for redundancy, so that you receive the same amount all over. Perhaps that is in her mind.

But the clause does not prevent the following circumstances from arising; namely, that an employee who is aged 61, and who has been for 40 years in a particular firm and suffers an unfair dismissal, would by way of redundancy payment be entitled to a very substantial sum. Let us suppose that he has been a foreman for a long time and his average wage is very high. Whichever court it is decides that he has been unfairly dismissed and is entitled to compensation, may say, "He is 61 and is not very well now, and could look forward to perhaps two years further engagement." It may assess damages on that basis, so the amount of damages will be very small. Under this clause, as I see it, there is nothing to prevent regulations from being made, the result of which, because the foreman in question has been given compensation for unfair dismissal, is that he loses the whole of his redundancy payment. He might get a very small sum and lose a very large sum. Is that the intention of the Government and, if not, where in this clause is that prevented from happening?

BARONESS TWEEDSMUIR OF BELHELVIE

It is certainly not the intention of the Government. It is the tribunal which would have to decide and, as the noble Lord knows very well, there are certain very clear regulations laid down about assessment in which age, years of service and weekly pay, for example, are taken into account. That is all assessed. The point of this clause is that in some cases where there has been a dismissal the employee may be in doubt as to whether he has been unfairly dismissed or has become redundant, and he may want to make a claim on both counts. This clause enables the Secretary of State to provide for the tribunal to make an award in respect of one of the claims to the exclusion of the other It is left to the tribunal to do this, and as they have definite criteria—I believe, for instance, that after the age of 41 the multiplier is one and a half times—I think it would be a fair award.

LORD DIAMOND

I think I must press the noble Baroness to say that she will be kind enough to look at these words, "such modifications as the Secretary of State may consider appropriate", because the Secretary of State may consider appropriate modifications which the worker in question and which we on this side of the Committee might not consider appropriate, and we do not know what they are at the moment. If it is merely a matter of exchanging one for the other then I can see that that is a possible argument. Whether one agrees or not does not arise immediately, but I can see that it is a possible argument. But any arrangement under which a worker could suffer by these regulations is something which we should probably not agree to, and for which we should certainly want to know the full justification. So although the noble Baroness has explained what is in the Government's mind, I am not happy that the wording of subsection (2) gives effect to it. Therefore, I shall be grateful if the noble Baroness will say that she will consider further whether any variation in the wording is necessary to give effect to the Government's intention.

BARONESS TWEEDSMUIR OF BELHELVIE

I do not want to detain the Committee by constantly speaking, but on the other hand I wish to try to allay the anxieties of the noble Lord, Lord Diamond. He realises that redundancy and unfair dismissal are mutually exclusive. Under Clause 22, for instance, redundancy is a justified reason for dismissal, subject to some qualifications, and we have just accepted on this clause an Amendment moved by the noble Lord, Lord Stow Hill, that these regulations should be subject to the Affirmative Resolution of the House. Naturally I cannot give the exact and precise details of these regulations now, but they will be debatable and they will be subject to Affirmative Resolution because we have accepted that Amendment. I hope that that will allay the anxieties of the noble Lord.

LORD DIAMOND

Regrettably, notwithstanding the lateness of the hour, the noble Lord's anxieties are not allayed, because, as I. understand the position, if a person is dismissed the remedy which he cannot seek is reinstatement. He may get reinstatement, but he cannot require reinstatement. He can require damages if he is unfairly dismissed, but not reinstatement. If I am right about that, it is not the case that these are alternatives, in the sense that, the man having been dismissed and it is found that he is unfairly dismissed, he is therefore reinstated and is entitled to redundancy; his rights are restored in full. That is not the case. If he is dismissed and not reinstated, he may get a sum of money which is much less than he would otherwise have had if it had been dealt with as a simple redundancy. Therefore I think I am not unfair, while having regard to the lateness of the hour, in asking the noble Baroness to consider further whether the words in the clause are such as to permit the Government to carry out their intentions. I recognise that the regulations will be put before the House, but regulations are under the powers of the Bill, or of the Act as it will then be, and I want the way in which a Minister of the present Government or of any future Government acting under this Act should conduct himself with regard to regulations to be made clear, if possible, in the Act. Therefore I want to deal with the matter at source. The noble Baroness is in charge of it, and she is one of the most reasonable Ministers to whom anybody could possibly address an argument. I have addressed my argument to her, and I shall be grateful if she will say that she will be good enough to consider whether the words of subsection (2) are sufficient to give effect to the Government's intention.

BARONESS TWEEDSMUIR OF BELHELVIE

I think that the words are quite sufficient, but I will certainly write to the noble Lord to confirm this. Perhaps—if I could finally allay his anxiety so that he does not have a sleepless night—I should say that the provisions in this particular clause are almost exactly similar to those which were in the previous Government's Bill.

LORD DIAMOND

I shall now have a nightmare.

Clause 145, as amended, agreed to.

Clause 146 [Period of continuous employment]:

BARONESS TWEEDSMUIR OF BELHELVIE

I beg to move Amendment No. 284C.

Moved— Page 107, line 35, leave out (" of unfair") and insert ("relating to").—(Baroness Tweedsmuir of Belhelvie.)

On Question, Amendment agreed to.

On Question, Whether Clause 146, as amended, shall stand part of the Bill?

1.5 a.m.

LORD STOW HILL

I do not want to take up the time of the Committee at this late hour, but this clause is important from one point of view. The Committee has previously debated Clause 26 which is the clause which provides that before anybody can bring a claim under Clause 20 in respect of an alleged unfair dismissal lie must be able to show that he has been in employment continuously for 104 weeks. Amendments were put down to try to deal with the situation in which there might have been some sort of interruption—perhaps because of illness; or there might have been various reasons which would prevent an employee who had been in employment for a considerable time saying that it had been continuous for 104 weeks. When the Committee debated that matter, it was the noble Earl, Lord Jellicoe, who pointed out that it would be difficult in practice to abbreviate that period, at the moment at any rate, because it was anticipated that there might be a consider— able number of claims and the industrial tribunals might find themselves rather overloaded unless a fairly long qualifying period was prescribed.

I have studied Clause 146 in order to ascertain whether any relief for an applicant for compensation under Clause 20 is contained in its terms. It seems to me that there is not. If I am mistaken perhaps the noble Baroness will correct me. If one looks at the successive subsections one finds that subsection (1) seems not to remedy the position. It relates to the total length of employment. Subsections (3) and (4) clearly do not do so on their terms. Subsection (2), when one considers its real effect, does not, I think, modify the position. It provides that the presumption that employment has been continuous is to apply for the purposes of the Bill. I do not think that that can have any practical effect. A worker who makes a claim under Clause 20 either is or is not in a position to assert that he has been in continuous employment for 104 weeks. I do not find it easy to envisage in practice any cases where the presumption could have any effect. One might have a case. theoretically, in which a worker suffered from an attack of amnesia as to a fortnight during the two years he was working for a particular employer; but in the nature of things that is most unlikely.

I do not want to prolong the discussion; I would simply put this question to the noble Baroness. Can she point to any provision in Clause 146 which makes it possible for the courts to hold in favour of a workman who applies under Clause 20 in respect of an alleged unfair dismissal but who for some reason cannot quite bring himself up to the required margin of 104 weeks?—a worker who, for example, must concede that at some time during that two years there was a break, a break which is insignificant but which would, as the Bill is at present drawn, disentitle him. I am sure the Government do not want him to be disentitled, and I should be grateful if the noble Baroness would point out to me that in some way this clause would assist; or alternatively, that she would give consideration to it in the hope that it may be changed into a form which would give assistance in this sort of case.

BARONESS TWEEDSMUIR OF BELHELVIE

If the noble Lord, Lord Stow Hill, will look at subsection (1) of Clause 146 he will see that it refers to Schedule 1 of the Contracts of Employment Act. If he looks at subsection (5) of that Act he will discover that all the matters troubling him are covered under this particular provision. Also. he will know from experience that there is considerable case law on this matter. The noble Lord read out various subsections to Clause 146 but one he did not refer to, and which is a very important one, is subsection (2). This provides that the presumption is that the employment is continuous. If that is read together with Schedule I of the Contracts of Employment Act, I think the noble Lord will find that these matters are covered.

LORD STOW HILL

I really mean to keep my promise not to prolong this debate, but I did study Clause 1. I looked up the 1963 Act and it did not seem to me to produce the result I had hoped for. I referred specifically to subsection (2) and I gave reasons, which obviously carried no conviction, for the view which I expressed, that it would have no useful application whatsoever. But if the noble Baroness will kindly say that she will give further thought to it, I shall be content.

BARONESS TWEEDSMUIR OF BELHELVIE

I am always willing to give further thought but not necessarily to amend.

On Question, Clause 146, as amended, agreed to.

Clause 147 [Claims under Terms and Conditions of Employment Act 1959, s.8]:

On Question, Whether Clause 147 shall stand part of the Bill?

1.13 a.m.

LORD CHAMPION

Clause 147 amends Section 8 of the Terms and Conditions of Employment Act 1959 in such a way as to preclude the reporting of a claim under that section to the Secretary of State by anyone other than a trade union or an employers' association as defined in the Bill. That seems to be perfectly clear. But when I turn to Part II of Schedule 7 setting out the Amendments in heavy type, 1 read in subsection (2): For the purposes of this section a claim, to be duly reported, must be reported to the Secretary of State in writing by an organisation or association which is registered as a trade union or an employers' association under the industrial Relations Act 1971, and is, or is represented by, one of the parties mentioned in paragraph (b)… When I turn to paragraph (b) of subsection (8)(1) I read: that the parties to the agreement, or to the proceedings in which the award was made, are or represent organisations of employers and organisations of workers or associations of such organizations… If I read that correctly in conjunction with subsection (2), it means that not only registered trade unions or employers' associations under the Bill but also one of the parties to the existing agreement may make a claim intending to change that agreement. If I am right about that, it does not seem to me that the Schedule carries out the intention of Clause 147. If I am wrong, it appears to me to create a serious situation in which the parties to the original agreement might, if they are not registered under this Bill, be precluded from pursuing a claim under a wages council created by Act of Parliament in 1959.

I think that this is a matter on which we ought to spend some little time, even at this late hour, because it refers to a body of employees who have to be protected by wages councils. I am hoping that the reply I shall get will indicate that people who are really parties to the original agreement will be able to submit a claim to the Secretary of State, even if they do not happen to be registered under this Bill.

BARONESS TWEEDSMUIR OF BELHELVIE

The noble Lord, Lord Champion, was quite correct in the way in which he interpreted this clause and the part of the Schedule to which he referred, because subsections (3) and (4) of the clause authorise the consequential amendments to the 1959 Act, and he read out to us the parts in heavy type. The position is that subsection (1) provides that no action shall be taken on a claim under Section 8 of the Terms and Conditions of Employment Act 1959 unless it has been reported by a registered trade union or employers' association. On the other hand, subsection (2)—the noble Lord was concerned about wages councils—removes what is now an embargo on claims concerning workers who are covered by wages councils. The 1959 Act at the present time excludes workers in wages council industries from the claims procedure. Subsection (2) removes this exclusion and restores the position to that which existed before 1959 under the old industrial disputes order. It requires employers to observe voluntarily recognised agreements and to widen the scope of voluntary collective bargaining arrangements so far as wages council industries are concerned.

LORD CHAMPION

I do not think I have made myself perfectly clear. When I was talking about subsection (2), I was not thinking about the Schedule to which this clause refers. I read out the words of the subsection and the words which particularly struck me as being extraordinary, having regard to subsection (1) of the clause, were the words: or is registered by one of the parties mentioned in paragraph (b). I went back to paragraph (b) and found that in the Schedule it relates to those organisations or persons who were parties to the original agreement. It seemed to me that the Schedule does not give effect to Clause 147. But if it does and if the intention is to cut out those words, which are still there according to the amended Schedule which we have before us, the position will be that the parties mentioned in paragraph (b), the parties to the original settlement, will be completely cut out unless they are registered organisations. That is my point. I was not so anxious about Clause 147 as about its application to the Schedule.

BARONESS TWEEDSMUIR OF BELHELVIE

The noble Lord, Lord Champion, is correct once again. I thought I had said that he was, and I thought I had made it clear that Section 8(2) of the Terms and Conditions of Employment Act 1959, as at present worded, enables organisations of employers and workers to report claims to the Secretary of State in certain circumstances.

LORD CHAMPION

Yes.

BARONESS TWEEDSMUIR OF BELHELVIE

What he wanted to know was whether it referred to registered trade unions or not. It does refer to registered trade unions and to registered employers' associations, and this clause is referred to in the Schedule as read out. For the moment I thought that he also referred to wages councils. It is a slightly different matter, referred to in subsection (2) of Clause 147. Here we are restoring the right which existed before 1959 and which, for some extraordinary reason, was removed in the 1959 Act.

LORD CHAMPION

The fault must be entirely mine, but I am not absolutely clear. I will study very carefully what the noble Baroness has said and perhaps return to it later on Report.

Clause 147 agreed to.

Schedule 7 agreed to.

House resumed.