INDUSTRIAL RELATIONS BILL

HL Deb 29 June 1971 vol 321 cc159-313

3.7 p.m.

THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALRYN)

My Lords, I beg to move that this Report be now received.

Moved, That the Report be now received.—(Lord Drumalbyn.)

On Question, Motion agreed to.

Clause 1 [General principles]:

LORD DIAMOND moved Amendment No. 1: Page 1, line 10, leave out (" and responsibly conducted ") and insert (" conducted on behalf of workers and employers and with due regard to the general interests of the community.")

The noble Lord said: My Lords, I beg to move the first Amendment on the Marshalled List. The first thing that I must say is how delighted I am to see that some distinguished Liberal names have been added to my own. I am accordingly flattered and encouraged. We have now reached the Report stage of this difficult and unwanted Bill. It would perhaps be appropriate if I started by saying a word or two about the way in which the Opposition considers its duty in relation to this stage of the Bill. We were able in Committee to review all the minor and major points which we thought required reviewing and to ascertain the Government's mind in relation to them. We have now reached the more or less final stage where we have to accept democratically that the Government must have their way at the end of the day notwithstanding that the Opposition must have their say. Our duty therefore is now to put forward Amendments not necessarily ideally suited to our point of view, not necessarily ideally suited to the way in which we should want the Bill to operate, but which we believe will make some progress towards the reconciliation of the two or three viewpoints expressed in this House. The Amendments that we put forward are therefore not to be regarded as in any sense ideally or wholly satisfactory to us, but are being put forward in the hope that they will meet with some considerable response from the Government on the grounds that they are helping the Bill forward from a viewpoint which is, shall we say?, midway between those of the two Front Benches.

Accordingly, in that sense I move this first Amendment which centres on what your Lordships will remember were the difficulties we experienced in trying to get a satisfactory description of the principles which the introductory part of the Bill provides and the difficulties we experienced because of the use in Clause 1(1)(a) of the word "responsibly". At the moment the first principle reads: the principle of collective bargaining freely and responsibly conducted, We raised that question because, clearly, "responsibly" was difficult to interpret and might have more than one meaning.

I think it would be helpful to your Lordships if I describe the meanings, as explained in this House by the Leader of the House, the noble Earl, Lord Jellicoe, on April 26 this year. He explained the word in the following way: I think it right that I should seek to explain what we mean by ' responsibility ' in this context. First, we mean that collective bargaining should be conducted by those who are properly authorised to do so; in other words, by the officials who have been given this responsibility by management and unions. The noble Earl went on to say: In these ways, the Bill seeks to ensure that collective bargaining is conducted by those who have the necessary mandate and the appropriate authority, and not by those who bear no real responsibility for what they may seek to do. That is one side of ' responsibility '. Secondly, we mean that those who engage in collective bargaining must bear some responsibility not just to themselves and those they represent but to the community as a whole."—[OFFICIAL REPORT, 26/4/71; col. 959.]

So, my Lords, our first point in bringing forward an Amendment in Committee was established; namely, that the word clearly had two meanings and that it was not apparent which of those two meanings was intended—or, indeed, whether both were intended. Accordingly, the Amendment seeks to remove this lack of clarity by, first of all, proposing to leave out the words "and responsibly conducted" and to put in conducted on behalf of workers and employers. That must be the right explanation of what the Government intended, as indicated by the noble Earl the Leader of the House. That must be the right explanation of that part of the meaning of the word "responsibly" when the noble Earl defined "responsibly" as he did. So we hope that, so far at all events, the Government, the Opposition and, indeed, the Liberal Party are thinking alike in saying that instead of "responsibly conducted" we should have the words, conducted on behalf of workers and employers. That is the representative part of the meaning of "responsibly".

Turning to the other part of the meaning of the word; namely, bearing some responsibility not just to themselves and those they represent but to the community as a whole we are proposing words which mean just that. The words are: with due regard to the general interests of the community. So in this way we seek to split the word "responsibly" into its two constituent meanings; to spell them out in the Bill and thereby to make clear what is the intention of the Government. Your Lordships will appreciate that we are proposing to do no more than to make clear what was clear in the Government's mind but not clear in the Government's Bill. Therefore I hope that these words will meet with approval.

I hope that the words used are well-chosen. The words, "workers" and "employers" are the words used in paragraph (c) of the same clause. We have chosen them as representing the two sides. The words due regard to the general interests of the community ". are, as your Lordships will immediately see, the words which appear at the end of paragraph (b). When we come to paragraph (b) I shall invite your Lordships to agree that if the Amendment is accepted, those words need not be repeated in that paragraph. At the moment I am merely making the point that, purely as to draftsmanship, the words are not ill-chosen. I move the Amendment, hoping that the Government will accept what is no more than an Amendment to clarify what was in their mind.

3.16 p.m.

LORD BEAUMONT OF WHITLEY

My Lords, I had hoped that my noble friend the Leader of the Liberal Party would have been able to be present and to speak on what we regard as an important Amendment. Unfortunately, he is detained and so I shall seek briefly to explain to your Lordships why we support this Amendment and have added our names to it.

I should like, first, at the beginning of this Report stage, to say, as my noble friend Lord Byers said yesterday, that as this Bill has proceeded we have observed that it is not so sterile as perhaps we expected at the beginning; and we find in it a basis for industrial relations. We still find it far from perfect; indeed, it is very imperfect. We still think that it is not an industrial relations Bill at all but an industrial disputes Bill.

LORD DIAMOND

Hear, hear!

LORD BEAUMONT OF WHITLEY

My Lords, we are not entirely encouraged by the Government's failure to accept some Amendments which would go a long way towards achieving industrial relations such as those put forward by various Members of your Lordships' House on the question of disclosure, not just for collective bargaining but for the rest of the time. On the whole, we have been pleased about, and are grateful for, the steps the Government have taken to meet some of the points which have been put forward. The Bill is being considerably amended, I think for the better. I should like to close these preliminary remarks by issuing a warning that we see a major problem still outstanding in the position of such unions as Equity, the seamen's union and those which constitute a very special problem. We know the Government think that they have gone a long way to meeting the needs of these unions, but we do not think that they have gone nearly far enough, and we shall be pressing them very hard on this matter.

Turning to the Amendment before the House, previous Amendments on this point put forward in Committee (although it is obvious from what the noble Lord, Lord Diamond, has been saying that they were more exploratory than otherwise) we did not think entirely satisfactory. We think that this Amendment forms an elucidation. We also think that if it is accepted it will be another step forward towards making this a bit of the Bill which is about industrial relations. I think it extremely important that this treble responsibility to employers employees and the community should be stated.

There are perhaps a great many places in our law where it should be stated. One is in our Company Law. Professor Michael Fogarty, in a book called, A New Company Law 1970?, argued at length that it should be there. A book which has just come out, again from P.E.P., which some of your Lordships may not have had time to look at but which is interesting on this subject, is called Company Boards and deals with the necessity for more and more public recognition of the various responsibilities that industry has to the community at large. These are usually thought not to be the kind of thing which could be included in statutes which actually enforce liabilities on people. Then Mr. George Goyder, in his extremely good book, The Responsible Company, argued otherwise. But I think it is of more symbolic value that they should be stated in clauses on general principles or declaratory pieces of legislation. It is for this reason that I think that this particular responsibility ought to be spelled out. I think this clause is the right place for it to be done, and I have no hesitation at all in joining with the noble Lord, Lord Diamond, in hoping that the Government will accept this Amendment.

LORD SHINWELL

My Lords, may I venture to support my noble friend Lord Diamond, and the noble Lord representing the Liberal Party, in advancing a few reasons why the Government should not reject this Amendment? I preface my observations by referring, just briefly and in passing, to what transpired in the course of the debate yesterday on the code of practice. Because of an unfortunate error, for which I was entirely responsible, my endeavour to address your Lordships' House then was frustrated. No doubt many noble Lords who were present on that occasion would have heaved a sigh of relief, but perhaps what I intended to say on that occasion may, again just in passing, be mentioned on this occasion.

Yesterday harmony prevailed. We had presented to us the prospectus, and the prospectus was, not to put too fine a point on it, oozing with optimism. The term "platitude" was used, and so far as I can recall it was mentioned only by the noble Lord, Lord Drumalbyn, who thought that the term should not be used in connection with the language embodied in the code of practice. I could not help thinking that it was in many respects platitudinous. The language was customary, conventional; but, apart from the language itself, the purpose was entirely clear. It was a prospectus intended to persuade those who are opposed to the Industrial Relations Bill to accept the principles embodied in the code of practice. Yesterday we had the prospectus, and to-day we have the balance sheet. Yesterday we had idealism, and to-day we are engaged in disputation. We revert to realism. That is the position.

We have to consider the Amendment itself, and I should be baffled, frustrated, disappointed and indeed amazed if the Government failed to accept this Amendment, for this reason, that the language proposed is language which has been used on various occasions by the Government themselves. These words have not only been used in connection with the Industrial Relations Bill, but have actually caused considerable controversy in connection with a famous case of arbitration. Noble Lords will recall that some time ago, I believe it was in connection with the disputes between the electricity and power employees and the central and area electricity boards, there was an arbitration. In the course of it the terms of reference provided that the general interests of the community must be considered, with all that that term entailed. I accept that at the time it was rejected by the employees' side concerned with the arbitration because they thought it seemed to be irrelevant in that particular issue.

How can the Government possibly object to the words "in the interests of the community"? The term "responsibly" requires varying interpretations. When we had our discussion in Committee on this matter of responsibility it was difficult even for the Government, difficult for the noble Lord, Lord Drumalbyn, to interpret what was actually meant by the term, "responsibly". It is open to varying interpretations. As we know, it will be open to varying interpretations if the matter should come before the industrial court or any other authoritative body having to consider what is an "unfair industrial practice" or what is meant by "collective bargaining" or anything associated with either term. Therefore it would seem that the Government, since they have been anxious to hear the views of noble Lords in order that the Bill should be improved—because that was the whole intention of the Government yesterday in presenting the code of practice, to collect the voices and, no doubt, having collected the voices, to convey those voices to the Government—have here, before the Bill is finally decided, an opportunity to offer something in the nature of a concession.

From the outset of our debates on Second Reading, and during the Committee proceedings, it appeared obvious to me that the Government had no intention of making any concession whatever. As for the noble Lord, Lord Drumalbyn, if I could describe him—but not offensively, for that is not my intention—he appears to me as an old Parliamentarian (I am the old Parliamentarian and he is younger) as one of the best political goalkeepers I have ever encountered. No matter how many shots were fired at him he was able to parry them, to set them aside. Not a single goal was scored even by my noble friend Lord Diamond, who has been—this is the only term that occurs to me without any notes before me—almost illustrious in his presentation of the Opposition case. He deserves considerable credit for the way in which he has conducted proceedings. The noble Lord, Lord Drumalbyn, is the best political goalkeeper since the palmy days of "Rab" Butler, now the noble Lord, Lord Butler. I said "palmy". In case there should be any misunderstanding I emphasise that I did not say "balmy days". He was a wonderful goalkeeper and could parry any kind of attack. The noble Lord, Lord Drumalbyn, is following in his footsteps and making an almost perfect job of the position he occupies. I have not tried to be offensive in any way, but I have tried to describe the noble Lord. I beg him now to make some kind of concession, if only for the purpose of enabling the Opposition to say that they have managed to get one concession out of the Government.

With that small victory, that minute triumph, we could go on to the public platform and boast of it. We could say to our colleagues in another place, "Well we have done our best and we have managed to get one concession out of the Government." What is the concession for which we are asking? It is merely that the Government should agree—surely noble Lords on the Government Benches would hardly resist this—that the terms proposed in this Amendment in connection with collective bargaining instead of "responsibly conducted" should convey a clear understanding that whoever acts with authority, either in an industrial court or any other authoritative body, should have regard to "the general interests of the community". That is all we ask. I hope the noble Lord will grant that concession.

LORD DRUMALBYN

My Lords, I should like to thank the noble Lord, Lord Shinwell, for the kind things that he said. He has made me blush, if he has not done anything else. I do not for a moment believe that I deserve them. I am sure that I let a lot of goals through, and only hope that I do not let any more through in the course of the afternoon. The noble Lord, Lord Diamond, who moved this Amendment with considerable clarity and cogency, indicated that there were two meanings of the word "responsible". The noble Lord, Lord Beaumont of Whitley, if I heard him correctly, spoke of a treble responsibility, and I would agree with him on this. The noble Lord, Lord Diamond, referred to what my noble friend said. But I think he will agree that as the debate proceeded a third meaning of "responsible" emerged, which is the general and ordinary sense of the word "trustworthy"—people who behave in a way that commands confidence. So we have three meanings: mindfulness of the needs of others; responsible to, in the sense of answerable to; and this third general meaning.

The noble Lord, Lord Shinwell, said that he would be baffled and frustrated and disappointed and amazed if I did not accept this Amendment. I hope that he will not be baffled and frustrated and disappointed and amazed if I do, because that is what I propose to do. I think that the noble Lord, Lord Diamond, made a case for this. He has set out two of the meanings which in this context I think are particularly germane to collective bargaining, though of course we come to another meaning of "responsible" later on. I hope that the House will agree to accept this Amendment.

LORD BARNBY

My Lords, I take this first opportunity of intervening at this stage in the Bill, remembering that on Committee stage it seemed to a good many of us that proceedings were unnecessarily protracted and there was an inclination towards frequent repetition of the same remarks on succeeding clauses of the Bill. It is naturally to be hoped that on Report stage there will not be a repetition of that, but I thought I detected an inclination to insinuate that the team of younger members on the Government Benches who have handled this Bill with such brilliance and lucidity have not had adequate personal experience of industrial relations. I would retort that it might well be said that some of the frequent speakers on the opposite Benches, several of them long and distinguished holders of office in the trade union movement, might themselves be less in step with eminent younger office holders in the trade union movement. It can be understood that there is an emotional anxiety against the intrusion of statutory authority in industrial relations, but it seems to me that it is frequently rather exaggerated.

In the 40 years during which I have had the honour of sitting in this House I have seen the passage of a great number of controversial Bills, and it is for that reason that I venture to suggest that it is to be hoped that the avoidance of obstruction may now be respected. I sat in another place with the Irish. Incidentally, apart from my noble friend Lord Swinton and I think the noble Lord, Lord Shinwell, and my good friend Lord Citrine, I am the only other who did.

LORD DRUMALBYN

My Lords, may I ask my noble friend a question? I am not quite certain whether he is speaking in support of the acceptance of this Amendment. He has urged us strongly that we should not protract proceedings, and therefore may I ask him if he could direct his mind to the Amendment?

LORD BARNBY

My Lords, I appreciate my noble friend's request. I assure him definitely that I am speaking in his support.

LORD BYERS

My Lords, is the noble Lord aware that the Government have already accepted this Amendment? All that is required is for the Opposition to thank the Government.

LORD BARNBY

My Lords, I took this opportunity, with the indulgence of the House, of saying that I would preface my remarks with some remarks on what happened on the previous stage of the Bill, and I was about to say that at least in another place with the Irish there was good humour and fine oratory. With regard to this Amendment, I want to express my support of the position which my noble friend has taken.

LORD DIAMOND

My Lords, your Lordships should understand that in my short Parliamentary experience in another place I have had some difficult speeches to follow, but I think the speech to which we have just listened is the most difficult to follow, and if your Lordships will forgive me, I will return straight away to the task which I think your Lordships would wish me to carry out, and that is to say how all of us, on all sides of the House, are grateful to the noble Lord, Lord Drumalbyn, for having accepted what is an important clarification. I would not dream of calling this a victory, because what we are trying to do is to help the Government, and we are grateful to the noble Lord for accepting an important clarification of this first main statement of principles at the start of this Bill. We tried hard at an earlier stage to make clear our views. They were not entirely acceptable. But the advantage of an exchange of views is that each side can listen to the other, and as a result we have now reached agreement, for which I am sure we are all grateful.

On Question, Amendment agreed to.

LORD DIAMOND moved Amendment No. 2: Page 1, line 12, after (" of ") insert (" freely ").

The noble Lord said: My Lords, somewhat encouraged by what has transpired—and by that I refer to Lord Drumalbyn's speech—I beg to move Amendment No. 2. In moving this Amendment, which affects paragraph (b), may I relevantly, but oddly, refer to paragraphs (a) and (c), because paragraph (a) will now read: the principle of collective bargaining freely conducted"; and paragraph (c) will read: the principle of free association of workers… Your Lordships will immediately appreciate that both paragraphs, (a) and (c), concentrate, very properly in my view, on the expression of freedom, of free will, of voluntarism in the approach to industrial relations. My hope is that the Government will agree that paragraph (b) should come into line. At the moment, that paragraph lacks an expression of voluntarly, of free, approach, and we are proposing in this Amendment to insert it. If the Amendment were accepted paragraph (b) would read: The principle of freely developing and maintaining orderly procedures… That is the only Amendment that we have to paragraph (b). The rest of the words we accept are right, with the exception of the words at the end of the clause which may now be regarded as redundant but which we will come to in a moment or two. The only substantial Amendment that we have to this fairly full description of general principles in this paragraph is the proposed insertion of the word "freely ".

The history of this Amendment is that, as your Lordships will remember, we discussed a similar but not identical Amendment in the Committee stage. We are anxious now to repeat our short and quick covering of the ground as happened in the Committee stage. I only hope that we do not have to fail to move Amendments as frequently as we failed to move them in the Committee stage: your Lordships will remember that time and time again, particularly my noble friend Lord Stow Hill and myself, said, "Not moved". I hope that we do not have to repeat that part of our Committee stage procedure.

The quickest and most authoritative way of reminding your Lordships of the essential point is to refer to the essence of the matter as described by the Secretary of State himself. That is what I did in the Committee stage and, with your Lordships' permission, I will do so again. What the Secretary of State said on January 18 in another place was this: We certainly want procedures for the peaceful settlement of disputes to be voluntarily agreed. That is how it should come about, and that is why we stress in the principle that we want settlement to come about by negotiation, by conciliation or by arbitration. In doing so, we are making crystal clear that we believe that the proper way to arrive at procedures for the peaceful settlement of disputes is by voluntary agreement assisted, where necessary, by conciliation and arbitration."—[OFFICIAL REPORT, Commons, 28/1/71; col. 658.] The essential word there which describes the process which the Government have in mind is the word "voluntary".

Your Lordships will no doubt immediately say to me: "Why are you not proposing that word in your Amendment?" The answer is that that is the word we proposed in our Amendment on the Committee stage, but the Government had certain hesitations which, while not actually accepting, we understand. We are therefore making a proposal that that part of the meaning of the word "voluntary" which represents a free approach should be included by the word "freely" being incorporated, and that part of the meaning of "voluntary" which gave the Government cause for hesitation should be eliminated by not including the word "voluntary". So instead of the word "voluntary", which I repeat is the word used time and time again by the Secretary of State to describe his and the Government's approach, we are using a word which I hope I can fairly describe as a halfway house.

That is all that there is in the Amendment. We think it is right that this should be repeated. We think that paragraph (b) would stand out—I do not want to say quite like a sore thumb—and would be seen by anybody who read the clause carefully to be surprisingly on its own, unique, in that it did not express what we are all satisfied should be expressed, the free approach, the voluntary approach in industrial relations. We therefore think that the Government would be well advised to incorporate into the Bill as nearly as possible what the Secretary of State said should be incorporated in this context. We think the Government should accept that, especially as we have, as we think, met all the difficulties which second thoughts on the part of the Government gave them to believe were difficulties in the way of incorporating into a Statute the word "voluntary". I am sure I have said enough to make it clear to your Lordships that we are once again proposing an Amendment which should put into statutory form what is in the Government's mind. I beg to move.

LORD DRUMALBYN

My Lords, I should like to have, as it were, a hat trick here, but unfortunately we are not quite so certain that this Amendment would not be misunderstood. What we have to bear in mind is that this subsection is talking about the principle of developing and maintaining orderly procedures in industry; and it goes on to state what the purposes of those orderly procedures are. It may not in all cases be possible to establish those orderly procedures in the sense that I think the noble Lord was indicating; that is, on a purely voluntary basis. Of course we think that the best means of achieving such procedures will be through voluntary negotiations. This will continue to be the normal. We hope very much that the Department of Employment's manpower and productivity service and the Commission on Industrial Relations will help to bolster up the voluntary system by making their specialist help available when it is needed. But there will undoubtedly be some cases when voluntary means will not suffice to achieve a satisfactory procedure, or perhaps any procedure agreement at all. In these cases, we have argued for the need for machinery under which an independent body, the Commission on Industrial Relations, can examine the situation and recommend a set of procedures. In the last resort, and only where the parties have had full opportunity to reach agreement in the light of the C.I.R.'s findings, the opportunity must, in our view, exist for the procedures recommended by the C.I.R. to be made legally binding.

This is obviously a derogation from the word "freely". We do not flinch from this. As my noble friend Lord Jellicoe said at an earlier stage, this is a question of the combination of freedom and responsibility, and we think that Clauses 37 to 43, relating to the procedure agreement, strike a fair balance between voluntarism, which is the ideal, and the need for compulsion in unusual and closely defined circumstances. These are the reasons why in this particular case we do not feel we can accept the noble Lord's Amendment. We appreciate very much his conception that negotiations should take place voluntarily and that the procedures resulting from such negotiations should wherever possible be reached voluntarily, but it seems to us that the Amendment is founded on a dislike of compulsion at any price and that it is inconsistent with the provisions of the Bill and also with the needs of certain situations which would otherwise be intractable and do damage to free negotiations as a whole. In other words, what we are saying here is simply that in this paragraph, in order to establish the freedom that we seek to achieve, it may be necessary in the early stages to use methods as recommended by the C.I.R. to establish the procedures through which that freedom may be achieved. For those reasons, I am sorry that I cannot recommend my noble friends to accept the Amendment.

LORD DIAMOND

My Lords, I must make it clear that I regard that answer as very unsatisfactory indeed, for two major reasons. The first is that the noble Lord's conception of "freedom" is not mine. When the noble Lord referred to the need for a responsible approach—I forget his exact words—he was assuming that the Amendment read The principle of licentious developing and maintaining orderly procedures. It did not. It referred to freedom. It referred to the belief which we on this side hold deeply and profoundly: that the way to get people to act sensibly and responsibly is to give them the freedom to act sensibly and responsibly, and that the conduct of human relations which, on the authority of the Secretary of State, I can now say is what we are talking about, is best carried out in that atmosphere. Therefore the use of the word "freely" incorporates that sense of responsibility which can only develop from human beings being free in their relations with one another. That is my first reason for regretting extremely that the noble Lord put an interpretation on "freely" which was absent from our minds and which I should hope would be absent from the minds of most of us.

The second reason why I find the answer unsatisfactory is because the noble Lord is now saying that he contemplates that this Bill shall be used for developing procedures compulsorily, and shall be used to incorporate actions forced on individuals, as opposed to those undertaken freely. What this Bill and the Government curiously call "agreements" means things you are doing not because you have agreed to do them but because you are being compelled to do them. That is the new-style word "agreement" according to the Government's philosophy. The noble Lord contemplates that it is these "agreements" that shall be provided for, and therefore the use of the words "freely developed procedures" shall not be acceptable. I find that a difference of principle of profundity. We could not possibly accept that as a sensible

approach to improving industrial relations. I regret extremely that what my noble friend Lord Shinwell said is already apparent: yesterday we were having a debate about a sensible, modern, understanding approach to human relations in industry, and to-day we are having a debate about a Bill under which the master will compel the man to do what the master wants. I regret that extremely. I invite my friends and colleagues to support us in opposition to the Government's attitude.

3.56 p.m.

On Question, Whether the said Amendment (No. 2) shall be agreed to?

Their Lordships divided: Contents, 56; Not-Contents, 120.

CONTENTS
Addison, V.	Hilton of Upton, L.	St. Davids, V.
Archibald, L.	Hughes, L.	Samuel, V.
Ardwick, L.	Jacques, L.	Segal, L.
Bacon, Bs.	Kennet, L.	Serota, Bs.
Beswick, L.	Leatherland, L.	Shackleton, L.
Brockway, L.	Lee of Asheridge, Bs.	Shepherd, L.
Buckinghamshire, E.	Lindgren, L.	Shinwell, L.
Burntwood, L.	Llewelyn-Davies of Hastoe, Bs. [Teller.]	Silkin, L.
Burton of Coventry, Bs.		Slater, L.
Champion, L.	McLeavy, L.	Snow, L.
Diamond, L.	MacLeod of Fuinary, L.	Stocks, Bs.
Douglas of Barloch, L.	Maelor, L.	Stonham, L.
Douglass of Cleveland, L.	Moyle, L.	Stow Hill, L.
Evans of Hungershall, L.	Nunburnholme, L.	Summerskill, Bs.
Faringdon, L.	Pargiter, L.	Taylor of Mansfield, L.
Gaitskell, Bs.	Phillips, Bs.	White, Bs.
Gardiner, L.	Plummer, Bs.	Williamson, L.
Garnsworthy, L. [Teller.]	Popplewell, L.	Wright of Ashton under
Geddes of Epsom, L.	Sainsbury, L.	Lyne, L.
Henderson, L.
NOT-CONTENTS
Aberdeen and Temair, M.	Byers, L.	Fortescue, E.
Ailwyn, L.	Clwyd, L.	Gage, V.
Airedale, L.	Colgrain, L.	Goschen, V. [Teller.]
Alexander of Tunis, E.	Conesford, L.	Grantchester, L.
Allerton, L.	Courtown, E.	Greenway, L.
Amherst, E.	Craigavon, V.	Grenfell, L.
Amory, V.	Cranbrook, E.	Gridley, L.
Amulree, L.	Crathorne, L.	Grimston of Westbury, L.
Ashbourne, L.	Cromartie, E.	Hacking, L.
Auckland, L.	Daventry, V.	Hailes, L.
Balerno, L.	De Clifford, L.	Hailsham of Saint Marylebone, L. (L. Chancellor.)
Balfour, E.	Denham, L.
Balfour of Inchrye, L.	Derwent, L.	Hankey, L.
Barnby, L.	Drumalbyn, L.	Harvey of Prestbury, L.
Beauchamp, E.	Dudley, E.	Hatherton, L.
Beaumont of Whitley, L.	Ebbisham, L.	Hawke, L.
Belhaven and Stenton, L.	Eccles, V.	Henley, L.
Belstead, L.	Effingham, E.	Hood, V.
Berkeley, Bs.	Elliot of Harwood, Bs.	Howard of Glossop, L.
Boston, L.	Emmet of Amberley, Bs.	Hylton-Foster, Bs.
Boyd of Merton, V.	Exeter, M.	Ilford, L.
Brooke of Cumnor, L.	Ferrers, E. [Teller.]	Inchyra, L.
Brooke of Ystradfellte, Bs.	Ferrier, L.	Ironside, L.
Jellicoe, E. (L. Privy Seal.)	O'Neill of the Maine, L.	Stamp, L.
Kilmany, L.	Rankeillour, L.	Stonehaven, V.
Kinloss, Ly.	Rathcavan, L.	Strang, L.
Latymer, L.	Rhyl, L.	Strathclyde, L.
Loudoun, C.	Robertson of Oakridge, L.	Swinton, E.
Lovat, L.	Ruthven of Freeland, Ly.	Templemore, L.
MacAndrew, L.	St. Aldwyn, E.	Teviot, L.
MacLeod, of Borve, Bs.	St. Helens, L.	Thomas, L.
Mancroft, L.	St. Just, L.	Thorneycroft, L.
Massereene and Ferrard, V.	St. Oswald, L.	Thurso, V.
Merrivale, L.	Salisbury, M.	Tweedsmuir of Belhelvie, Bs.
Milverton, L.	Sandys, L.	Vivian, L.
Molson, L.	Savile, L.	Wakefield of Kendal, L.
Monck, V.	Shannon, E.	Willingdon, M.
Monckton of Brenchley, V.	Sinclair of Cleeve, L.	Windlesham, L.
Mowbray and Stourton, L.	Skelmersdale, L.	Wolverton, L.
Northchurch, Bs.	Somers, L.	Wrottesley, L.
Oakshott, L.

Resolved in the negative, and Amendment disagreed to accordingly.

4.4 p.m.

LORD DIAMOND moved Amendment No. 3: Page 1, line 15, leave out (" with due regard to the general interests of the community ").

The noble Lord said: My Lords, I beg to move Amendment No. 3. It is not a probing Amendment—and I want to make that absolutely clear; it is an Amendment to give the Government an opportunity of saying what they want. We are at the Report stage and therefore one has to make provision for everything. The Government have been good enough to accept the first Amendment which incorporated into paragraph (a) the words: with due regard to the general interests of the community. It occurred to me that the Government might not want the same words repeated (although they are in a somewhat different context) in paragraph (b). My anxiety 'was that the Government should not be in a position to say, "We will not accept Amendment No. 1 because that would mean having these words in twice." If the Government want the words in twice they can have it; if they want the words in once they can have it. What could be more accommodating than Her Majesty's present Opposition?

THE LORD CHANCELLOR

Did the noble Lord move his Amendment?

LORD DIAMOND

My Lords, in my first words I moved the Amendment.

LORD DRUMALBYN

My Lords, the noble Lord has kindly given us a choice in this case. I should like to make it quite clear that, just as he saw no objection to putting in "freely" on an earlier occasion, so we see no objection to having the words in twice here because they are, after all, two separate operations: the collective agreements and also the reaching of procedure agreements. Therefore, may I accept the second option and ask him not to press his Amendment.

LORD DIAMOND

My Lords, I am grateful to the noble Lord and, with the permission of the House, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DIAMOND moved Amendment No. 4: Page 1, line 20, leave out (" responsible ").

The noble Lord said: My Lords, I hope it will be for your Lordships' convenience that we can discuss with this Amendment the following Amendment, No. 5: Page 1, line 20, leave out from beginning to end of line 21 and insert (' of and responsible to their membership and effective in protecting and improving their interests; '). The reason for Amendment No. 4 is that we do not think that "responsible" is a satisfactory word to use, because of its lack of clarity. Paragraph (c) already includes one of the aspects of "responsible". It says: so organised as to be representative, We have already been told that "responsible" has two meanings; one of them is the representative one. That is already taken into account. The second meaning, that of being responsible not only to those who appoint you but to the general interest of the community, does not, we think, need repeating in this subsection, and therefore it would be adequate if the word "responsible" were left out.

However, the Government may prefer (and therefore these Amendments are alternatives; and I do not need to repeat that on Report stage one has to take everything into account) to have a form of words which spells out the situation with greater clarity. It is for them to decide. I should have thought that the first Amendment would be adequate, merely to leave out the word "responsible". If the Government prefer it then there is no reason why the second Amendment should not be accepted. That would have the effect of making the clause read: ….so organised as to be representative of and responsible to their membership and effective in protecting and improving their interests; There is no doubt that the representative part of the meaning of "responsible" is fully incorporated in the second Amendment by the use of the words, "representative of and responsible to their membership". It could not be expressed more fully or with greater clarity.

The paragraph goes on: ….and effective bodies… We have considered the purpose of these words, and what the Government are seeking to achieve or effect. We think it is to carry out the duty of protecting and improving the interests of members. This applies whether it is workers in independent trade unions, or employers in employers' associations, both of which are mentioned in the paragraph. We think that this is the real meaning of the word "effective". As the clause is drawn at the moment, to call them "effective bodies" would not make clear what is in the mind of the Government. It should be stated what we all know to be a fact, that their function is to protect and promote the interests of their membership, and the words used in our Amendment are therefore: effective in protecting and improving their interests". My Lords, I think that sufficiently explains these two Amendments. I am moving the second one and hoping that the Government will be good enough to indicate their mind and their preference.

LORD SHINWELL

My Lords, as I understand it, we are dealing with both Amendments. The noble and learned Lord the Lord Chancellor has put only the first Amendment.

THE LORD CHANCELLOR

My Lords, I have to do it that way.

LORD SHINWELL

My Lords, I understand that to be the position, but I also understand that the noble Lord, Lord Drumalbyn, will deal with both Amendments simultaneously. There is something to be said for this Amendment. We have had many disputations in the Committee stage, and I do not think we ought to have a repetition at the Report stage. But the difficulty is how to define the term "responsible". It is very difficult, but it is possible to define it if it is connected with some further terms; and that is precisely what the second Amendment proposes.

There is another reason why on this particular occasion some concessions should be made, if not to the Opposition then to the trade union movement in general. I do not know whether your Lordships are aware that today is the centenary of the formation of the British Trade Union Congress. The British Trade Union Congress was formed just one hundred years ago, and it would be a concession to the General Council of the Trade Union Congress with whom the Government wish to be on good terms. I think the noble Lord would accept that. It is very desirable, even if this Bill becomes an Act of Parliament and is implemented, that the Government should be on good terms with the Trade Union Congress, rather than create acerbity, acrimony and resentment, and this would be a unique occasion to make the concession asked for. The only concession asked for, if we are to use the term "responsible", which is difficult to define accurately and will give rise to disputation if it comes before the various authorities and courts, is that it be connected up with the words in Amendment No. 5. That would make all the difference in the world. Paragraph (c) would then read: …responsible to their membership and effective in protecting and improving their interests; This is precisely the function of the trade union movement. Trade unions exist solely for the purpose (I exclude for the moment the political alignments) of safeguarding and protecting the interests of their members. This concession I think would be regarded with favour by the General Council of the British Trade Union Congress, and therefore I support my noble friend.

THE EARL OF BALFOUR

My Lords, I wonder whether I might draw your Lordships' attention to one thing. Your Lordships will notice that Schedule 1, paragraph 5(1)(a) refers to the clause that we are discussing, Clause 1(1)(c), and I feel that the important words that would be deleted if we agreed to Amendment No. 5: regulating relations between employers and workers would no longer so adequately apply to that Schedule. The principle here, whether it be a closed shop or any other organisation, is clear and precise, and therefore I do not think that this Amendment should be accepted. The word "responsible" is, I feel, essential, because the unions must be responsible to their members and represent their members; but, equally, employers must also be responsible to their associations, and because of its influence on Schedule 1 I would not recommend that this clause be altered in the way proposed.

LORD POPPLEWELL

My Lords, I find it difficult to accept that argument. I should have thought that the Amendment suggested was essential. If we do not accept the Amendment and leave paragraph (c) as it is worded in the Bill: so organised as to be representative, responsible and effective bodies… who is going to define the matter of responsibility? Who will be able to say, "You are the responsible negotiators", or "You are not the responsible negotiators"? If somebody is given this task of defining it, what is the yardstick that will be used? The Bill as it is at present worded could be very difficult to operate in actual practice. One can imagine all kinds of arguments arising from time to time with words doubtfully expressed. The official shop steward or the official trade union may be at work in some of these factories, and dissident groups may label him in a different manner—and this situation is not entirely unknown. I should have thought it would be helpful if the words suggested in the Amendment were added because they define where the responsibility lies and who this negotiator is responsible to. It is not left in thin air, which could ultimately lead to many legal battles in the courts before the interpretation is correctly assessed as case law. I would ask the Government to have another look at this point.

4.20 p.m.

LORD DRUMALBYN

My Lords, I do not think there can be any real doubt about what is meant by the word "responsible", and I do not think it would give rise to any great difficulty. The word can be used, as I have said, in its ordinary sense, about people who keep their agreements and behave respectably and so on. It can also mean "answerable to". I would agree with the noble Lord that to a large extent, at any rate, the word in that sense is covered by the word "representative". Furthermore, it can also mean, as my noble friend Lord Jellicoe said earlier, that people are mindful of their obligations to others. But in these general senses there is no doubt at all that there would be no difficulty in interpreting the word.

Trade unions and employers' associations can organise themselves in a variety of ways, and it certainly is no part of the Government's intention to try to impose a standard form of organisation on them. But it is clear that the ways in which these bodies are organised—for example, by whom and at what level decisions are made and agreements entered into—will determine to a large extent their ability to honour agreements and behave responsibly in other respects. Attention has been drawn to the fact that we are here talking about effective bodies for regulating relations; and this is what the Bill is so largely about. Guiding principles, set out in subsection (1)(c), recognise that trade unions and employers' associations should be so organised as to be not only representative but responsible. This seems to me quite unexceptionable and quite clear. Indeed, the mere Amendment on the Order Paper to leave out the word "responsible" has almost an air of stupidity about it; it is almost absurd to leave out "responsible".

It is true that the word can have more than one meaning, but in this context it can have only the sense of trustworthy, of good credit position and repute, which is the ordinary use of the word. These attributes are surely to be applauded in any organisation or individual, and I really do not understand why anyone should seek to delete the word or to change the meaning to one of the more special meanings of the word: namely, "responsible to", that is, "answerable to". Surely noble Lords will agree that we shall not get good industrial relations unless the bodies regulating them are so organised as to be responsible as well as representative. I quite agree that they should be so organised as to be answerable to their membership; that is inherent in the word "representative". But they should also be so organised, surely, as to be responsible. And of course this connotes also the training for responsibility about which we were speaking yesterday on the code of practice, which we must not forget.

The principles which have been incorporated in the Bill have been carefully drafted to avoid the danger of merely expressing aims or purposes which are unenforceable. Thus, only those principles which are later embodied in the substantive provisions of the Bill have been included. I am grateful to my noble friend Lord Balfour for having pointed out the link here in this particular case. Applying that strict criterion to the Amendment, I do not think the aims of unions and, for that matter, employers' associations—because this subsection applies also to them—legitimate though they may be, could be properly included as a general principle. Everybody knows what those aims are; everybody is aware of it without having it stated in this Bill; and if they are not fully aware, then so far as the trade unions are concerned it is item 1 of the section on trade unions in the code of practice.

However, leaving that aside, what is the point in question? Can anyone doubt that trade unions exist to promote the interests of their members? Those which do not do so are not likely to flourish. But this is not a point to which the authorities referred to in the second part of this clause need pay attention. There is no point in calling the attention of these authorities to this aspect, which they will all know, and which would in any case have no particular effect. For these reasons I think the code of practice rather than the Bill is the best place to state the aims of trade unions. The code will be endorsed by Parliament, and its provisions can of course be taken into account in proceedings before the National Industrial Relations Court and tribunals. I hope that I have said enough to make it clear that we attach importance to the retention of the word "responsible" here, and that we very much prefer the words that are already in subsection (1)(c), effective bodies for regulating relations between employers and workers ", to the words which the Amendment suggests.

LORD DIAMOND

My Lords, this is not a matter of life and death, but it is regretted that the Government have not seen fit to accept either of these Amendments which, to my mind, would improve the Bill and make it easier to understand. Certainly so far as paragraph (c) is concerned, in my view the main benefit of the words is in the earlier words: the principle of free association of workers in independent trade unions ". That is a fine statement, and nothing is detracted by what is said further on. All that the noble Lord has indicated is that there is not much in what is said later on, and in that I would, with respect, agree. There is not much to be said for the Amendment; there is not much to be said for the words which the Amendment seeks to replace. The main statement of principle is in the earlier words, and we would all be perfectly happy, I am sure, if the later words were entirely omitted. But it is not easy to achieve that at this stage in our proceedings.

May I give one more reason why I should have thought the Government would want to reconsider their attitude with regard to the word "responsible"? I find it perfectly understandable and feasible that one should set out to organise either a union or an employers' association so as to achieve a representative body; and if "responsible" is used in that sense there is something to be said for the words in the provision. But for the life of me I do not know how one sets out to organise a trade union or an employers' association so as to achieve a body which will be responsible in the other sense in which the noble Lord is using the term. One can hope that that will be so, but I do not see how one can organise it.

LORD DRUMALBYN

My Lords, will the noble Lord allow me to intervene? He will remember that his noble friend Lord Brown indicated the need for institutions, which means organisation for responsibility.

LORD DIAMOND

My Lords, I recognise that institutions are necessary for the exercise of that kind of action; I fully recognise that. I would not use the word "responsibility", because one is going to be in this semantic difficulty that each side will be using the other meaning of the word. That is, of course, coming back to our original objection to the use of the word, because it is going to be confusing. I repeat that I do not see how one can organise that kind of attitude of mind; and, if I may say so, I do not think moral judgments or reading lectures in Bilk is a very happy way of framing them, or of legislating. I do not think that either trade unions or employers' associations need to have lectures of this kind read to them, or to be told in this legislation that in future they must not be irresponsible bodies; that they must be responsible. I regard these last three lines as an unfortunate addition; but I do not think it is a matter of life and death. I regret that the Government have not shared our view as to the way to improve the Bill. It is for them to decide, and as they have been very clear about it, I think the simplest thing is for me to ask permission to withdraw the Amendment.

Amendment, by leave, withdrawn.

4.32 p.m.

LORD DIAMOND moved Amendment No. 6: Page 2, line 2, leave out from (" safeguards ") to the end of line 3.

The noble Lord said: My Lords, I beg to move Amendment No. 6, and I hope it will be convenient for your Lordships to consider at the same time Amendments Nos. 7 and 8, which are alternative forms of amending this same subsection. Here again, they are alternatives, but of course, as I shall make clear during my opening remarks, we have a preference for one as against the other two. The first Amendment would mean that the principle stated in subsection (1)(d) would be a simple one, the principle of freedom and security for workers, protected by adequate safeguards. That is a glorious principle, the principle of freedom and the principle of security for workers, "protected by adequate safeguards". They are very acceptable principles, and I do not think, with respect, that they need adding to. The rose is sufficiently attractive as it already is.

I am bound to tell the Government that I think the difficulty which they have got us all into is of their own creation, because instead of leaving that principle happily expressed as I have read out, the Government go on to say, "safeguards against unfair industrial practices.". Let us be quite clear what is meant by those words. It is not safeguards against attacks on their freedom; it is not safeguards against attacks on their security; it is not safeguards against unfairness; it is not safeguards against injustice. It is safeguards against a curious, novel, artificial legal concept, the unfair industrial practice, never heard of until it was created for the purposes of this Bill. Indeed, one of the Parts of the Bill, Part V, is headed, "Other unfair industrial practices". We are not here talking about principles. We are talking about this curious, artificial, legal concept, which I believe is very ephemeral and I hope is very evanescent. I hope it will very soon disappear from the scene.

I think the Government have put us into an absurd position in the same subsection by relating "freedom", the wonderful concept of freedom, to this rather puny, unwelcome artificial creation, the "unfair industrial practice". What I read in the Press recently brought to my mind the idea of freedom as originally conceived by the ancient Greeks. I saw a picture of them dedicating a new temple to freedom and inscribing on the marble the wonderful word EYEU OEPIA, freedom, and putting next to it "protected by adequate safeguards against longhaired tourists". That would be absurd, but no more absurd than the present subsection when it talks about "the principle of freedom" and adds "safeguards against unfair industrial practices".

I hope that I am making it very clear to your Lordships that what I am objecting to is the relation of this curious artificial, legal concept with the stirring word of "freedom". That is the first reason why I think that the paragraph should end with the words "protected by adequate safeguards". That would mean that their freedom and their security is protected. I think that is all that is necessary to be said. It is a wonderful thing to say it, and it would be a great pity to spoil it by going on with some further unwanted and unhappy words. Therefore, I should like your Lordships to consider favourably, and the Government to accept, the first of these three Amendments, No. 6, which simply seeks to leave out from "safeguards" to the end of line 3.

This being the Report stage, as I have drawn to your Lordships' attention, one has to move on the basis that the Government might not share one's views entirely, but might be willing to meet one up to a point. So the next Amendment, No. 7, which I hope is conveniently discussed at the same time, would leave out the reference to "unfair industrial practices" and insert instead unjust actions". The paragraph would read: … protected by adequate safeguards against unjust actions, whether on the part of employers or others". I am using the phrase "unjust actions" because there was a reference to it in our previous discussion. There seemed to be general agreement that there should be protection against injustice; that there should be protection against unfairness. I think it was the noble Earl, Lord Dudley, who referred to this in our previous discussion, at column 1111. It is certainly referred to in the Donovan Report. I am moving these words as an alternative, in case this Amendment meets with the pleasure of the House more readily than the first Amendment, which I would infinitely prefer.

If the Government wish that it should be spelled out, then we come to Amendment No. 8, which is to leave out from "against" in line 2 to the end of line 3, and to insert "unfairness and injustice". In that case, the paragraph would read …protected by adequate safeguards against unfairness and injustice". In short, there is no need to include whether on the part of employers or others". All three Amendments have this in common: that they eliminate the unwanted words, "unfair industrial practices". They eliminate them because the prospect of them is not welcome; they eliminate them because they are unnecessary; they eliminate them because the principle of freedom and security is adequate in itself. I therefore beg to move the first of these three Amendments.

4.40 p.m.

VISCOUNT MASSEREENE AND FERRARD

My Lords, I rather get the impression that the noble Lord, Lord Diamond, is pulling our legs. May I take the noble Lord's first Amendment, Amendment No. 6. If we were to leave out the words after "safeguards", the result would be rather the same as if an insurance broker came along to you and said, "I will insure you" but did not say what he was going to insure you against. If we leave those words out, paragraph (d) will really mean very little. It is obvious that the noble Lord, Lord Diamond, objects most strongly to the words, "unfair industrial practices". I know why he objects to them, but I need not go into that point here.

May I now take his next Amendment, Amendment No. 7, to which also he spoke? If the House does not accept Amendment No. 6, Amendment No. 7 would leave out "unfair industrial practices" and insert "unjust actions". Again I cannot see the House agreeing to that, because on Amendment No. 4 we have just had a long debate on the meaning of the word "responsible", and Amendment No. 7 could lead to a long debate on the meaning of "unjust actions". How are you going to define what an "unjust action" is? It is a very wide phrase. We all know what "unfair industrial practices" are; we read of them in the papers nearly every day. The noble Lord appeared to be very concerned, as I am sure he is, that the freedom and security of workers should be protected by adequate safeguards, but the sad truth is that individual workers are not protected at all by adequate safeguards. We read a case in the papers only to-day about a Mr. Crawford who had refused to take part in an unofficial strike and who has been sent to Coventry for the last ten or twelve years. He lost his job, but the company gave him a grace and favour job which, I understand, entails about 10 hours of work a week. But none of his union colleagues will speak to him. He was a craftsman, and he has not been able to employ his craft since he lost his job. I almost said, "My God!" but I mean, my Lords, that is an unfair industrial practice.

LORD DIAMOND

My Lords, I hesitate to interrupt the noble Viscount, but will he tell me where there is a provision in the Bill which will make this man's mates speak to him?

VISCOUNT MASSEREENE AND FERRARD

My Lords, of course you cannot make his mates speak to him; but you can prevent him from losing his job and from not being able to employ his craftsmanship.

LORD POPPLEWELL

My Lords, would not the noble Viscount agree that Mr. Crawford, if he has been in this position over such a long period of time, has received increased remuneration for doing nothing, which the unions have won for him and which he has not been prepared to help them get?

VISCOUNT MASSEREENE AND FERRARD

My Lords, that is possibly beside the point. According to what I read in the Press, he has not got the remuneration he would have got, and I understand that he is going to sue the union and his employers. The point is that he has not been able to indulge in his craft. It must be very frustrating for him. I quoted that instance only because it happened to be in the papers to-day. I can quote many more instances, but I obviously do not want to indulge in a filibuster.

As to the third suggestion, to insert "unfairness and injustice", that term again is rather like "unjust actions"; how are you going to define it in law? It is easy to define "unfair industrial practices"—such things as kangaroo courts. Therefore I hope that my noble friend on the Front Bench will resist these Amendments.

LORD BERNSTEIN

My Lords, this, again, is a question of words. The reason these changes are put forward by my noble friend Lord Diamond is to help the Bill. They cannot hurt the Bill. Would it not be a good idea if the Government considered some words which would cover what has been recommended by my noble friend, so that we do not get involved in this battle about the words "unjust actions" and "unfair industrial practices"? The Government want the Bill to work. Then why do they not produce words which will help it to work, as suggested a short while ago by my noble friend Lord Shinwell? Must Her Majesty's Government be so obstinate in all these matters? Is there not any point at which they can come forward and say, "We agree that there is a basis for thought here, and we will do something about it"?

LORD DRUMALBYN

My Lords, with respect to the noble Lord, I do not think we are talking just about words here. The noble Lord, Lord Diamond, is in a very reasonable mood this afternoon and put forward his Amendment in a very fair manner, but, all the same, he could not conceal his dislike of the words "unfair industrial practices". He nods his head. This is not just a question of changing the name of these practices that are listed throughout the Bill; it is the fact that there are some of these practices that he does not think are unfair, as I understand it. That is one of the reasons. In any case, the point is that what we are trying to do in this early part of the Bill is to state the general principles which are linked up and reproduced throughout the Bill. They are linked up with what follows in the Bill. Throughout the Bill a large number of unfair industrial practices are mentioned. One can start off straight away with the unfair industrial practice of infringing a worker's right to join a trade union and to take part in its activities; and the unfair industrial practice of dismissing an employee unfairly. The point is that there are just about an equal number of unfair industrial practices on each side. I think it is 15 and 18; 15 on the employer's side, and 18 on the other.

What we are trying to indicate is how this Bill is going to safeguard the principle of freedom and security, and it does it by reference to protection against the unfair industrial practices. It seems to me that it is right that we should have this at this point. As the noble Lord, Lord Diamond, said, my noble friend Lord Dudley drew attention at an earlier stage to the use of the words "unfairness" and "unjust" by the Donovan Commission. That is quite right; but these are abstract words.

LORD DIAMOND

My Lords, so is "freedom".

LORD DRUMALBYN

It is no good talking about sin in general; you have to define what are the sins. Ever since Moses came down from Sinai with his Ten Commandments this has been so. You have had to decide for yourself particular sins, particular crimes and particular unfair industrial practices. If you did not do that, it would be sufficient just to have one single Statute and let the judges carry on with the rest: let them decide and work out, if you like, in practice, or something like that, what is going to be the content. But in this Bill we define these unfair industrial practices; and one of the objects of the Bill is to safeguard the workers, among others, from these unfair industrial practices. It is right that we should make it quite clear, in the principles that we enunciate, that these are the objectionable practices against which the Bill is directed. So I am sorry, but we cannot accept this Amendment. I do not think it would be any better if we said "unjust actions", because exactly the same objection applies to that phrase as applies to "unfairness" and "injustice". They all lack content; whereas we have defined this number of unfair industrial practices throughout the Bill. So I hope your Lordships will feel that this is the best form of principle relating to freedom and security for workers in the context of this Bill. That is what we are seeking to achieve, and I should regret it very much indeed if these words were deleted from the clause.

LORD BEAUMONT OF WHITLEY

My Lords, I think it is quite clear that this is, on the whole, a debate about the concept of unfair industrial practices, and I should like at this stage to make it clear, as I think we did in Committee, that this is a concept which we on these Benches find not only an acceptable but a useful one. Indeed, possibly one of the real contributions which the Bill is making to the whole idea of industrial relations and industrial disputes is the idea, which can be, and is being, defined in the course of the Bill, of an unfair industrial practice. That being so, we would not be willing to support the noble Lord, Lord Diamond, in Amendment No. 7 and Amendment No. 8. Amendment No. 6 is a little more full of the siren's song, because I think there is considerable merit in what the noble Lord, Lord Diamond, said about the whole aesthetic effect of paragraph (d) by concluding with the words, the principle of freedom and security for workers, protected by adequate safeguards without going on to spell it out much further.

I do not agree with the noble Viscount, Lord Massereene and Ferrard, or with the noble Lord, Lord Drumalbyn, in thinking that it is absolutely essential to have "unfair industrial practices" inserted there. I think the paragraph would be perfectly all right without those words, because there is going to be enough about unfair industrial practices, and indeed there is enough about unfair industrial practices, elsewhere in the Bill. But because I think one has to have a fairly strong reason to try to amend a perfectly adequate and satisfactory part of a Bill, I do not think that the aesthetic reason put forward by the noble Lord, Lord Diamond, is really enough to enable us to support him, particularly as it looks suspiciously like part of a package deal to get rid of the whole idea of the concept of unfair industrial practices.

LORD DIAMOND

I am grateful to the noble Lord who has just spoken in that he has shown that he has fully taken the point I was trying to make: that it is wise to express high principles and it is foolish to mix up high principles with a new creation of 169 (I think it is) torts; and although I have no direct authority that I would claim from Moses to refer to his unfair practices, I think that if he were among us he would say that he thought his 10 were better than the noble Lord's 169. If my recollection is accurate, of those 10 not more than 8, I think, were unfair practices; but I would have, I admit, to check up to be absolutely sure. However, be that as it may, I repeat the main point which I am grateful to the noble Lord, Lord Beaumont, for having taken: that I think this principle can best be expressed only by leaving out all these other, sullying, unnecessary words.

If the Government want to have a statement saying that they propose to introduce the concept of unfair industrial practices and they propose to protect people against them, let them introduce that as a separate principle. But for the Government to try to pretend that that is essential in order to describe the principle is going much too far and would never persuade me. The noble Viscount, Lord Massereene and Ferrard, asked what the insurance company is insuring. The answer is that it is insuring the freedom and security of the worker—a very simple answer; very simple indeed. Therefore, I had hoped that the Government would have second thoughts on that matter.

Of course I am making it as clear as a bell that we are totally opposed to the idea of bringing in 169 new torts in an endeavour to improve human relations. If I have not made that clear then I have failed in everything I have been trying to do over these last weeks. Of course we are against it. We are wholly against it. It is totally opposed to our conception of how to improve human relations. It is totally opposed to the Secretary of State's ideas of how to improve human relations as expressed in his foreword to the code of conduct, which we were considering only yesterday. It is totally impossible to reconcile that attitude of creating 169 new torts with the attitude which was expressed and felt throughout that excellent foreword, as I described it yesterday.

LORD DRUMALBYN

My Lords, may I just intervene to say that I think that, in counting up the 169, what has been counted is the number of references to unfair industrial practices, not the number of unfair industrial practices or new torts.

LORD DIAMOND

As I understand it—and I can be corrected because we all speak in the presence of the author of the calculation; namely, the noble and learned Lord who chaired and gave his name to the Royal Commission—the position is this. First, I want to say that when the noble and learned Lord invited the Government to ask him for the detailed list, that invitation was not pursued; so I take it that the noble and learned Lord is still delighted to give the detail of it if he is asked to. Secondly, as I understand it, what the noble Lord has just said is not accurate. There are 169 different actions which can land you in the position of having committed what will be, and what before was not, a tort, a civil wrong. That is as I understand it. Therefore, to outbid Moses in this way does not appeal to me in the slightest. So I am saying to the Government: of course we are wholly opposed to that new concept. The Government make their case infinitely worse by attempting to put that unwanted, unwelcome creation of theirs against the magnificent, stirring appeal for freedom. If they want to do that, they damage their own Bill. We are going to have nothing of these 169 new torts in our way of improving human relations, and I invite the House to support me in that view.

4.59 p.m.

On Question, Whether the said Amendment (No. 6) shall be agreed to?

Their Lordships divided: Contents, 55; Not-Contents, 126.

CONTENTS
Addison, V.	Gaitskell, Bs.	Sainsbury, L.
Archibald, L.	Gardiner, L.	St. Davids, V.
Ardwick, L.	Garnsworthy, L.	Serota, Bs.
Bacon, Bs.	Geddes of Epsom, L.	Shackleton, L.
Balogh, L.	Henderson, L.	Shepherd, L.
Bernstein, L.	Heycock, L.	Shinwell, L.
Beswick, L.	Hilton of Upton, L. [Teller.]	Slater, L.
Blyton, L.	Hughes, L.	Snow, L.
Brockway, L.	Jacques, L.	Stocks, Bs.
Buckinghamshire, E.	Leatherland, L.	Stonham, L.
Burntwood, L.	Lindgren, L.	Stow Hill, L.
Champion, L.	Llewelyn-Davies of Hastoe, Bs.	Taylor of Mansfield, L.
Chorley, L.	McLeavy, L.	Walston, L.
Delacourt-Smith, L.	MacLeod of Fuinary, L.	Wells-Pestell, L.
Diamond, L.	Maelor, L.	White, Bs.
Donaldson of Kingsbridge, L.	Moyle, L.	Williamson, L.
Douglass of Cleveland, L.	Phillips, Bs. [Teller.]	Wright of Ashton under Lyne, L.
Evans of Hungershall, L.	Plummer, Bs.
Faringdon, L.	Popplewell, L.
NOT-CONTENTS
Aberdare, L.	Dudley, E.	Mancroft, L.
Ailwyn, L.	Ebbisham, L.	Massereene and Ferrard, V.
Airedale, L.	Eccles, V.	Merrivale, L.
Albemarle, E.	Elliot of Harwood, Bs.	Milverton, L.
Allerton, L.	Emmet of Amberley, Bs.	Monck, V.
Alport, L.	Exeter, M.	Monckton of Brenchley, V.
Amherst, E.	Ferrers, E.	Mowbray and Stourton, L.
Amory, V.	Ferrier, L.	Northchurch, Bs.
Ashbourne, L.	Foot, L.	Oakshott, L.
Auckland, L.	Fortescue, E.	O'Neill of the Maine, L.
Balerno, L.	Gage, V.	Rankeillour, L.
Balfour, E.	Garner, L.	Rathcavan, L.
Balfour of Inchrye, L.	Goschen, V. [Teller.]	Rennell, L.
Barnby, L.	Grantchester, L.	Rhyl, L.
Beauchamp, E.	Greenway, L.	Rochdale, V.
Beaumont of Whitley, L.	Grenfell, L.	Ruthven of Freeland, Ly.
Belhaven and Stenton, L.	Gridley, L.	St. Aldwyn, E.
Belstead, L.	Grimston of Westbury, L.	St. Helens, L.
Berkeley, Bs.	Hacking, L.	St. Just, L.
Blackford, L.	Hailes, L.	St. Oswald, L.
Boothby, L.	Hailsham of St. Marylebone, L. (Lord Chancellor.)	Salisbury, M.
Boston, L.		Sandford, L.
Bourne, L.	Hankey, L.	Sandys, L.
Boyd of Merton, V.	Harvey of Prestbury, L.	Savile, L.
Bradford, E.	Harvey of Tasburgh, L.	Selkirk, E.
Braye, L.	Hatherton, L.	Sherfield, L.
Brooke of Cumnor, L.	Hawke, L.	Sinclair of Cleeve, L.
Brooke of Ystradfellte, Bs.	Henley, L.	Skelmersdale, L.
Burgh, L.	Hood, V.	Somers, L.
Byers, L.	Howard of Glossop, L.	Stonehaven, V.
Caccia, L.	Hylton-Foster, Bs.	Strang, L.
Clifford of Chudleigh, L.	Ilford, L.	Strathclyde, L.
Clwyd, L.	Inchyra, L.	Swinton, E.
Colgrain, L.	Inglewood, L.	Templemore, L.
Courtown, E.	Jellicoe, E. (L. Privy Seal.)	Teviot, L.
Craigavon, V.	Kilmany, L.	Thurso, V.
Cranbrook, E.	Kinloss, Ly.	Tweedsmuir of Belhelvie, Bs.
Cromartie, E.	Latymer, L.	Vivian, L.
Daventry, V.	Lonsdale, E.	Wakefield of Kendal, L.
De Clifford, L.	Loudoun, C.	Willingdon, M.
Denham, L. [Teller.]	Lucas of Chilworth, L.	Windlesham, L.
Derwent, L.	MacLeod of Borve, Bs.	Wolverton, L.
Drumalbyn, L.	Macpherson of Drumochter, L.	Wrottesley, L.

Resolved in the negative, and Amendment disagreed to accordingly.

5.6 p.m.

LORD DIAMOND moved Amendment No. 9: Page 2, line 3, at end insert (" and (e) the principle that management has the primary responsibility for good industrial relations.")

The noble Lord said: My Lords, it is difficult to keep up with the pace at which business moves in your Lordships' House. The quickest way of bringing out the point that is behind this Amendment (and we are always anxious for the quickest way) is to refer to the comments of the noble Lord, Lord Drumalbyn, during the Committee stage when he said: I should like to say at once that the Government unreservedly accept that the prime responsibility for promoting good industrial relations rests with management."—[OFFICIAL REPORT, 27/4/71; col. 1146.]

That was a most helpful and acceptable statement made with unusual clarity for a Minister of any Government. He went on to say: As the noble Lord says, this was made abundantly clear by the Secretary of State for Employment in the other place…

So he adds to his own authority the authority of his colleague who is in over-all charge of the Department and of the Bill. That is the view of the Government. That is our view, too. Therefore, we are proposing in this Amendment that this generally accepted view should be incorporated in the Bill. I hope that the wording will be satisfactory to the Government because it is taken from the code. The code says: Management has the primary responsibility for good industrial relations and should take the initiative in creating and maintaining them.

Apart from the Foreward, this is the first statement in the code. It is those words, therefore, which have been used in the Amendment. If we agree that management has the "primary responsibility for good industrial relations", the only thing upon which I now have to satisfy the House is the correctness of the placing, of the context which this principle is to be inserted in the Bill. We are dealing at this stage with principles which should guide those who are conducting collective bargaining and who are promoting good industrial relations. A number of principles have been set down, some of them in a more acceptable form than others; but I think that this particular one is of such importance that it should not be omitted. It is the first statement in the code; it is a statement of principle which the noble Lord, Lord Drumalbyn, and his right honourable friend the Secretary of State have wholly and precisely endorsed; and I should have thought there was little need for me to say anything more than that I beg to move.

LORD DRUMALBYN

My Lords, of course we do not resile in any way from what either the Secretary of State or I said. At an earlier stage in the proceedings on the Bill I undertook that we would consider this very carefully, and we have done so. At that time neither the noble Lord nor I had seen the code of practice and we did not know what it would contain or the way it would contain it; and we have looked at the matter in that context. I think the difference between us is whether this concept which the noble Lord has put into his Amendment should be set out in Clause 1 or in Clause 2.

In our earlier debate I explained to your Lordships our reasons for believing that the best way to give emphasis to the concept was to incorporate it in Clause 2. Now that noble Lords have had an opportunity to study and debate the consultative draft of the code of practice I think they must give my right honourable friend the Secretary of State credit for having that principle right at the forefront of his mind when preparing the draft; because, as the noble Lord, Lord Diamond, said, this is in the very first sentence in the draft and the implications of that pervade the remainder of the code. I suggested in Committee that it is more likely to be a copy of the code of practice, rather than of the Act itself, which managers will have on their desk as a handbook to which to refer, and the code will have the greater impact of the two in bringing home to managers their responsibilities in industrial relations. So, in our view, that is the document in which the principle should most appropriately be embodied.

The noble Lord will probably recall that I also pointed out then certain difficulties which could arise if this principle were incorporated in Clause 1. The principles in this clause are guiding principles to which the statutory agencies mentioned in subsection (2) must have regard. If this Amendment were accepted, in every case that came before the Industrial Court or an industrial tribunal, a case arising between employers and workers, the Court would have to have regard to it as a guiding principle and so start from the position that prima facie the employer is always to blame and the onus would be on the employer to show that this is not so in a particular case. If I may put it in another way, a workers' organisation accused of an unfair industrial practice would be able to argue that the employer had not fulfilled his managerial responsibility for maintaining good industrial relations, and then leave it to the employer to prove that he had. That would be difficult if industrial relations were not good, however much the employer had done to make them good—perhaps in the face of deliberate and dogged hostility on the part of a trade union. I am not for a moment suggesting that this is generally so, but it could happen. Whereas, if this appears in the code, the general concept of managerial responsibility would be taken into account, and I should have thought probably better taken into account, under Clause 2 than if it appears as a principle in Clause 1.

I think I must say also, my Lords, that this is a different sort of principle, if it is a principle, from the other principles, (a), (b), (c) and (d). Those are broad principles. This is a statement of functional responsibility, so we do not think that it falls easily into Clause 1. We do not believe that putting it into Clause 1 would be more effective, from the point of view of the authorities, except in the sense that I have indicated —namely, that it might cause injustice in certain cases—and we think that the responsibility is fully recognised in Clause 2. Noble Lords will remember that this was an Amendment that was made in Committee in another place, in order to meet the wishes of another place, to ensure that this concept of managerial responsibility should be reflected in the Bill.

I am not suggesting that the attitude or lassitude—if that is the right word—of the employer may not from time to time provoke a union from time to time to engage in unfair industrial practices. If the indifference or antagonism of the employer has been a contributory factor, the Court will be able to take that into account in the assessment of the compensation. I am suggesting that it would be unjust automatically to lay the responsibility for bad industrial relations in all cases at the door of the employer, as this concept, placed here, would be in risk of doing. I do not think one can be extremely positive about this, but I feel that it would be desirable not to include this in the principles, for two reasons—

LORD DIAMOND

But, my Lords—

LORD DRUMALBYN

Perhaps I may just finish my sentence, and then I will give way to the noble Lord—for two reasons or, really, for three reasons: first, because it does not fit easily with the other principles; secondly, because it is firmly in the code and is also referred to in Clause 2, and, thirdly, because there is the risk—I would not put too much emphasis on it—of injustice being done. Now I will give way to the noble Lord.

LORD DIAMOND

My Lords, I am grateful to the noble Lord for giving way, and it is important that he should have said that he is giving way so that there may be no confusion about my appearance at the Dispatch Box at this moment. I interrupt him only to ask him to be good enough to turn his mind to the words: "primary responsibility." The Amendment refers to, the principle that management has the primary responsibility for good industrial relations. Everything the noble Lord has said on his third point, which I agree is a very dubious point, is on the basis that management has the resposibility, the whole responsibility; whereas, all that it says is the "primary responsibility", which contemplates someone else having a secondary or even a tertiary responsibility. Would the noble Lord say something about that?

LORD DRUMALBYN

Yes, my Lords. We are talking here about the primary responsibility, but the fact still remains that where there are bad industrial relations, and, let us say, there is a claim of an unfair industrial practice from one side or the other, it can always be implied that it is a failure of management in its primary responsibility that is the prime cause, the root cause, of the trouble. It is incumbent upon management to secure, in the first place, good industrial relations. As I say, I do not place very great stress on this point, but I do not place so little stress on it as the noble Lord has done when he says, "very dubious". I would say that it is a matter of argument. I think that I ought to inform your Lordships that this is the opinion of Parliamentary counsel on this matter.

5.20 p.m.

LORD BEAUMONT OF WHITLEY

My Lords, I should like to make plain that if we cannot support the noble Lord, Lord Diamond, on this Amendment, it is not because we disagree in principle. Indeed, my noble friend Lord Rochester made a telling speech, I thought, on Committee stage on this point. He hoped that he would have been here to discuss it on Report. In fact, he made a special visit in the hope that we should reach it yesterday, but unfortunately he is unable to be with us to-day. I think that the substance of the point made by the noble Lord, Lord Drumalbyn, about where the burden of proof would lie if this Amendment were put into this clause, is a good one. I also think that we want to keep the number of general principles as small and as short as possible—what I might call the aesthetic argument again. I may have to say more about that when I rise to support the noble Lord, Lord Diamond, on Amendment No. 10. This principle is already in Clause 2, and it is put very firmly at the top of the code of practice, which on this point has the strong form which my noble friend Lord Byers yesterday urged it should have. I think that these are the right places for it. I do not think we need to put it in here, so I hope that we shall not divide on this Amendment.

LORD LEATHERLAND

My Lords, I feel disappointed at the response we have had from the noble Lord, Lord Drumalbyn, to this suggested Amendment. Surely this is a general principle, a fundamental principle, governing the whole concept of industrial relations as laid down in this Bill. Why should this not go into Clause 1? This clause deals with "promoting good industrial relations" and according to the code the Government recognise that this particular matter should be of primary importance. I think that it should go here, rather than in Clause 2, because that clause merely sets out matters that have to be observed when we are drawing up the code.

We have been told that the code is not the law bur, like the Highway Code, will be of a semi-advisory nature and will be taken into consideration when the general questions affecting any dispute are discussed. The noble Lord, Lord Drumalbyn, put forward as one excuse, if I may so call it, for not accepting the Amendment that it might tend, in the event of a dispute, to cast the burden of blame on employers, because the code says that the primary responsibility for good industrial relations lies with the employers. I do not accept that, because we are not saying that the responsibility for good relations lies completely at the door of the employer; we are saying merely that this is the primary responsibility, and in the case of any dispute that leaves scope for the pros and cons to be weighed and, on the strength of the evidence, for somebody to say that the blame here was not that of the employer but that of the trade union. We are saddling the employer only with the primary responsibility, not with complete responsibility. I feel that it would be an improvement to the Bill if this fundamental factor were put with the other fundamental factors in Clause 1.

LORD SLATER

My Lords, it was not my intention to participate in any debate on Amendments during Report stage, because I played a prominent part in the previous Committee stage, but, having given some thought to this Amendment, I cannot understand why the Government are so adamant in their attitude in not accepting it. Your Lordships will be aware that I have already made many speeches about the need for good conciliation machinery, because a good employer of labour has nothing to worry about. He will have the necessary contact with the trade union side and can build up the type of machinery whereby confidence is displayed between the two parties. I have visited all types of industries, met managements and talked to employees, and I have tried to get to know from them how this machinery is working. Let me give your Lordships a particular case. It is well known that many years ago there was introduced into the Civil Service what is known as the Whitley machinery. When I talked to people on the engineering side of the Post Office and to postal supervisors about how the Whitley machinery was working in the Post Office, the answer was that they had good relations with the management. There was no trouble at all.

I cannot understand why the noble Lord really thinks that if it should happen that an employer was brought into court, the dice would be loaded against him, because he had the primary responsibility for good industrial relations. I do not think for one moment that if there was good conciliation machinery operating between the two sides of industry a case would ever go to court. Not all employees are of the type who want to push an issue. I have found that where there is a strong trade union leadership and the leaders are able to tell their men when they are in the right and when they are in the wrong, the management have little to fear. From all that has already been said I should have expected the noble Lord, Lord Drumalbyn, who has spent so much time in the study of this Bill, to be able to persuade Mr. Carr that this Amendment could be accepted, without any prejudice or any fear that it would be used in the way which he suggests.

I sincerely hope and trust that the noble Lord will give further thought to this Amendment. If he is not prepared to accept it, I hope that he will take the views expressed by my noble friend Lord Diamond to his colleagues in the Government, and that something may be done elsewhere, so that this process can be brought into operation for the benefit of industry.

5.30 p.m.

THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF EDUCATION AND SCIENCE (LORD BELSTEAD)

My Lords, as my noble friend Lord Drumalbyn has already spoken, I wonder whether, without following the noble Lord, Lord Slater, in any detail, I might be permitted to say that it is my noble friend's feeling that he agrees with what the noble Lord has said. I do not say that he agrees in detail, but in general he entirely agrees. The principles in paragraphs (a), (b), (c) and (d) of Clause 1 are to be regarded by the bodies which are set out in subsection (2) of the clause. It is for this reason that my noble friend feels it inappropriate (I think that was his word) that this Amendment should be included in Clause 1(1). I think it bears repeating that my right honourable friend the Secretary of State has shown his sincerity in this matter, first by putting primary responsibility in this matter, as I believe it was in Committee in another place, into Clause 2 of the Bill and then putting it, as my noble friend Lord Drumalbyn has reminded the House, in the very forefront of the code. It is for these reasons—not because we wish to be hard-headed about this matter, but purely for these technical reasons—that my noble friend resists the Amendment.

There are other provisions in the Bill where responsibility, which we agree falls on management but may not have been well taken by management, can be picked up. For example, we have had an interesting debate in which the noble Lord, Lord Diamond, forcefully put the position over procedure agreements in respect of paragraph (b) of Clause 1(1). I think I am right in saying that we have to look at Clause 37 to see that, quite squarely, a complaint can be brought to the Court—not only by the Secretary of State, but also by the trade unions concerned and the employers—and passed on for detailed consideration by the C.I.R. If it is found that the procedure agreement is deficient through the fault of management and not necessarily the fault of the other side of industry, it will be management's responsibility in that matter which will be brought to book.

On those two legs, first because we feel that technically we should not put this Amendment into this clause, and secondly because we feel that unfair industrial practices on the part of management are already dealt with effectively in the Bill, I ask the House to believe that the Government are being reasonable in this matter and are not seeking on any ideological or hard-headed ground to resist the Amendment, which, none the less, we must in this case resist.

LORD SLATER

Far be it from me—

SEVERAL NOBLE LORDS

Order!

THE LORD CHANCELLOR

The noble Lord has already spoken.

LORD SLATER

I am sorry.

LORD DIAMOND

My Lords, I shall try to interpret what my noble friend Lord Slater was about to say, as I understand that I have the privilege of speaking again on this Amendment. I am very grateful to him and to all noble Lords who have taken part in this debate. It is the case that we are discussing a question of judgment. This is not a difference of principle or a matter on which we would wish to divide the House. On the other hand, it is a matter on which we hope to persuade the Government that our judgment is right and that the Government's judgment is not so well founded as ours.

I want first to underline the gratitude which all of us feel that this important principle has been accepted into Government thinking and has been incorporated as item No. 1 in the code. If I were to cast my mind back to the day when I first entered Parliament in 1945, I should find it very difficult to conceive that a Conservative Government in those days would have found it possible to introduce a document of this kind. I am grateful, therefore, for the movement in opinion which has taken place. There is no lack of gratitude or lack of appreciation: I am sure the noble Lord, Lord Drumalbyn, understands that.

What we are discussing is which is the best way of promoting good industrial relations in regard to this particular issue. The noble Lord, Lord Drumalbyn, has given, I believe, three reasons why he was hesitant and, before he said so, I naturally assumed that he would not have made the comments he did about legal implications and the burden of evidence if he had not been so advised. I accept straight away that he has good advice available to him. I was once stupid enough to say, in connection with a debate on the Finance Bill in another place, that I had not only good advice, but the best possible advice available to me—I had in mind the whole army of the Inland Revenue and its great experience. On that occasion the Minister who was opposite me (I hope I cause no offence or pain by referring to someone for whom I always had the deepest respect, namely lain Macleod) made it very clear in a few short, crisp sentences what he thought about my authorities. He proceeded to list those to whom he had referred with every sense of confidence. That was a good lesson which all of us would be happy to learn.

Therefore I say to the noble Lord that I am sure he has good reason for paying considerable regard to the advice he has been given about this difficult matter, but we also have sought advice. What we are told, broadly, is that it is very difficult indeed to be sure how the appearance of an item in the code is an alternative to its appearance in this prefatory, introductory part of the Bill. My noble and learned friend Lord Stow Hill will be making some comments about this, I am sure, either on Clause 4 or later on in consideration of the Bill. It is a matter which he, not I, is equipped to discuss. Although I accept that the noble Lord, Lord Drumalbyn, has very good reasons for saying what he has said, I hope he will accept from me that this is an extremely difficult area. He would be a brave man who could say with certainty what would be the effect of putting this principle in Clause 1, as compared with putting it in the code, where it already is and where (although this is not the final copy of the code) I should expect it to be when we have the final copy. That is the difficulty and I say no more about it.

Where we are in disagreement is not about the principle, for we all agree that it is a good principle. The noble Lord says that he does not think that it suits so well the principles enumerated in paragraphs (a), (b), (c) and (d). All I can say is that subsection (1) starts by saying: The provisions of this Act shall have effect for the purpose of promoting good industrial relations in accordance with the following general principles… I repeat, "promoting good industrial relations". The Bill is concerned with principles in relation to good industrial relations, not principles in relation to gardening, or principles in relation to playing games, or principles in relation to our conduct in married life, or any other kind of principles. I cannot for the life of me see which principle could be more important than that, because that is the essential movement in ideas which is taking place and which, in my view, will alter the whole prospect of good industrial relations. I should have thought, therefore, that that principle merited, not only, as the Government accept, pride of place in the code itself, but certainly a place in the statement of principles. I recognise that it is in Clause 2, but Clause 2 is for very different purposes. So I say, with respect, that it is perfectly possible to include it in Clause 1, and it should certainly be so included.

But the two matters that we have discussed so far are matters for consideration and of judgment. It is on the third issue that I hope to prevail upon the Government to say that they will reconsider their view. So far as those of us who sit on this side are concerned, if the Minister rose in his place to seek the permission of the House to make it clear that the Government are going to change their view, we should not wish to take any procedural objection to such a course.

Let me say why I think the third reason is one in which my judgment is better founded than the Minister's. He is talking about the difficulty in which an employer might find himself in the Industrial Court or when appearing before an industrial tribunal. We are talking about a document—namely, the introductory part of this Bill—which will reach millions and is a statement of good principles which should inform managements and men throughout industry for every working day in every year. By whatever means you calculate the harm that may come to the odd employer who finds himself before a court—and that is a questionable harm—you cannot possibly set it against the enormous good that will be done (it is the Government's own view that this is a good principle) by this being included in the statement of principles which goes out to every employer and every employee on all their lawful occasions, when they are not concerned with going to court or to an industrial tribunal but are concerned to make industrial relations work and to improve matters between themselves. It is infinitely more important to have regard to these multitudinous occasions rather than to the odd occasion (and the Government hope that it will be an odd occasion) when anyone will find himself in court and possibly in a technical difficulty through having the burden of proof somewhat lightly shifted against him. It is not our wish that a burden of proof should be shifted against anybody. What we want to establish is that if people will have regard to this good and wholesome principle, if all managements will do what good managements already do—the problem always is to get the less good up to the standard of the best—and accept their prime responsibility in this field, there will be far better industrial relations and far less need to go to court to have disputes settled.

I have already said that this is not a matter on which to divide the House. I think our judgment on this is well founded, and the Government would serve industrial relations well if they reviewed the matter. I do not know what the machinery would be, but I dare say in your Lordships' House there is the possibility of adjusting Bills, even on Third Reading. I will leave it to the noble Lord to consider what we have said. He knows whether we are trying to make a Party point or trying to improve the Bill. I leave it to the noble Lord, and merely express my gratitude to all noble Lords who have taken part in the debate and listened to what has been said. I seek your Lordships' approval to withdraw the Amendment.

Amendment, by leave, withdrawn.

5.45 p.m.

LORD DIAMOND moved Amendment No. 10: Page 2, line 3, at end insert— (e) the principle of promoting a greater sense of involvement on the part of the worker by securing for him through his trade union or organisation of workers an appropriate share in the decision-making processes relating to those policies which affect his work.

The noble Lord said: My Lords, this again is a matter of adding to the statement of principles a further principle. It is one that many of us in my Party hold and, as we know, has long been held by the Liberal Party to be a very important principle indeed. Therefore, I hope that the Government will pay their usual and careful attention to the reasons that we are putting forward as to why this Amendment should be accepted. Let me say, first, what the Amendment means and why we propose it; and, secondly, why I hope for support on it.

My own view—and I am sure this is widely shared—is that a "sense of involvement" (those are the words in the first line of the Amendment) is an absolutely essential pre-requisite to good industrial relations, to happy working conditions and to the prosperity of all concerned. But that sense of involvement is nowhere mentioned in the Bill. It is of course mentioned in the code, and perhaps I may read it out to your Lordships. It is the first item in the code affecting trade unions, on page 8, Paragraph 8 says: The principal aim of trade unions "— and by "trade unions" it makes it clear that it refers to trade unions as we all understand them; that is to say, whether registered or not— is to promote their members' interests. They can do this effectively only if they accept that, in common with management, they have an interest in and a responsibility for the success of the undertaking. This involves co-operation in promoting efficiency and good industrial relations. There it is stated plainly. The question that arises is: How are you to secure it? My view is that you will never get involvement unless you get participation—and by "participation" I mean some method of joining in making decisions of an appropriate kind. That approach is to be distinguished from what we yesterday described, and still describe, as "paternalism". Paternalism is the approach where the head of the family, with accepted authority, tells the others what they should do; and we can easily convert that into the area of industrial management. The co-operative group, on the other hand, which we seek, is a number of people working together and making their decisions jointly. This in no way removes the final responsibility of management, as we said yesterday, in making the final decision. But every good manager knows that you manage easier if you get co-operation, if you get involvement, and if you get people participating, so far as is appropriate—and I will come to that in a moment.

What I am saying is that the Government regard involvement as essential. We regard involvement as capable of being achieved only as a result of participation: but we go further and say that you will get a sense of involvement if you first give opportunity for participation. So we then concern ourselves with the area to be covered by the decisions. I should have thought it was generally accepted that the decision-making processes should relate to our policies. There is no difficulty whatsoever about arranging for that to happen. Of course there is immense difficulty in arranging for detailed managerial points to be shared, but none in sharing decision-making regarding policies. Which policies should be so shared? We do not say that all should be so shared, but we say it is surely right that those policies which affect a man's work should be shared as to decision-making. So this Amendment, for the reason I have described, refers to promoting a greater sense of involvement on the part of the worker by securing for him an appropriate share—no more than that—to be left to the good sense of both sides of industry to work out in differing circumstances; because it is by sharing in those decision-making processes that involvement comes relating to the policies and not to the detailed management instructions. The only words I have left out are: by securing for him through his trade union or organisation of workers. That is the way it should be secured. That is obviously the method by which participation should be negotiated.

I have explained why that rather lengthy statement of principle has been introduced, so as to get a sense of involvement which the Government regard as critical, operating on the minimum basis; that is to say, not interfering unnecessarily with management or detailed managerial decisions at all, but on a minimum basis of sharing in the decision-making processes as appropriate only as regards policy-making and only as regards those policies which affect a man's own work. That is a very moderate statement of the way to put into practice that kind of participation which will achieve a sense of involvement.

My Lords, why do I hope to get the support of your Lordships? We have previously discussed this sort of thing, although not this Amendment, and at column 1117 of the OFFICIAL REPORT for April 27 we were discussing this when my noble friend Lord Delacourt-Smith moved an Amendment, couched in much simpler terms, dealing with the principle of workers' participation in management. But, of course, that Amendment went a good deal further, and might have caused some anxiety. Therefore to-day we are making a very moderate approach to it, and I should like to read out some of the very helpful statements that were made from all sides of the Committee. First of all, the noble Lord, Lord Beaumont of Whitley, said this: The principle of workers' participation in management is in its essence one which has been a foremost plank of Liberal Party policy for many, many years."—[OFFICIAL REPORT, 27/4/71; col. 1121.] He went on to express his hesitation about the wording of the Amendment.

There was then another interesting comment by my noble friend Lord Brown, who speaks with great authority on these matters and, as everybody knows, has devoted a lifetime to them. He was not agreeing with the Amendment which was then put forward—he agreed in substance but not in detail—and he thought a better Amendment would have been one that referred to: …the principle of workers' participation in agreeing the policies which affect their daily working lives, with management, so that management can work within those policies: and if in fact you get managers working within agreed policies and agreeing not to change them without agreement, then you give managers full authority as long as their decisions lie within those policies. That is the way to give management more authority and at the same time to give workers and others in employment more participation in what they would regard as the management of the company but what I would regard as the formation of the policies within which the company is managed." (col. 1124.) The noble Viscount, Lord Massereene and Ferrard, was, as usual, helpful and he said (col. 1125): I agree most heartily with every word uttered by the noble Lord, Lord Brown. The noble Viscount, Lord Caldecote, was also present on that occasion. He speaks, as we all know, with great authority on these matters; and I will quote in part his words. He said (col. 1130): The fifth way of looking at this matter is that employees should be consulted and brought into decision-making and policy-making at the earliest possible stage. That seems to me to be entirely right, and I support that policy completely and try to do it as much as I can in the business with which I am connected.

My final, and perhaps most authoritative, quotation is from the noble Viscount, Lord Amory, who was good enough to take part in our debate on that occasion. He said: I intervene for a moment with the greatest diffidence "— it is amazing what one finds in Hansard!— because I fear that at any moment the noble Lord, Lord Davies of Leek, will apply the Indian death lock ". (col. 1132.) I do not necessarily say that that proves my case completely, but the noble Viscount went on to say: I believe wholeheartedly in joint consultation, but I go further. Even at the risk of embarrassing the noble Viscount, who knows that I have great affection for him, I recommend what he said to the careful consideration of your Lordships. He said: I should be disappointed if joint consultation, when practised sincerely over a period, did not lead to participation in management in some ways. This is something which those of us who try to practise joint consultation should always try to keep ahead of us as our aim. We should be continually experimenting to see whether we can find some forms of participation in management that will not lead to divided responsibility, unhappiness and discontent, as well as to inefficiency. If this Amendment "— that is, the one then under consideration— contained the principle of joint consultation, then I, for one, would have been glad to see it here in this Bill, and, if this is not the point for it, I hope very much that that principle will be encouraged in every way in some appropriate places in this Bill. We said yesterday that we are all looking forward to seeing the code of practice. If joint consultation is mentioned there, I hope that that will be mentioned not as an end in itself, but as a means of greater participation and involvement of everybody in a business." (col. 1132–3.)

I hope I have not detained your Lordships unduly in order to refresh your Lordships' memories of the support for the kind of Amendment which I am now putting forward which came from all sides of the Committee. I have been careful to frame the Amendment not wholly in accordance with what we should regard as the ideal way of framing this principle but in a way which represents a considerable step forward and which represents, so far as I can see, the essence and heart of what everybody was saying. There was a considerable amount of agreement about it, and if it were incorporated as one of the principles in this Bill it would really adorn it. I beg to move.

6.0 p.m.

LORD BEAUMONT OF WHITLEY

My Lords, I am, in principle, opposed to adding further principles to the general principles at this point of the Bill. I also think that if they are to be there they should be short and concise, and I do not think that this Amendment is quite that. Nor am I entirely happy about its wording. It would probably be better without the words "sense of" in the first line. We want to get greater involvement. A greater sense of involvement might be something of a conflict. We do not necessarily need the words about the "trade union or organisation of workers" because although I entirely agree with the noble Lord, Lord Diamond, that this is appropriate, and would almost invariably be the way in which the aim would be attained, I do not think that it rises to the heights of a principle.

What I should like to see this Amendment saying is: the principle of promoting a greater involvement on the part of the worker through an appropriate share in the decision-making processes relating to those policies which affect his work. I merely state these reservations that I have about the Amendment in general in order to emphasise how very strongly I support it in principle and how very strongly I hope it will be successful.

This is neither the time nor the place for a recital of the Liberal Party's attitude on this question. The noble Lord, Lord Diamond, has, quite rightly and fairly, drawn attention to the history of our attitude. We believe in a very strong worker co-ownership and co-partnership in industry. We do not think that industrial relations, as opposed to industrial disputes, will be really improved in this country until we have moved quite a long way along the paths of co-ownership and co-partnership. For this reason, we think that if the Government really want to tackle the problem of industrial relations, as opposed merely to that of industrial disputes, having accepted the first Amendment today, they should also accept this one. Possibly it could be amended into a slightly better form on Third Reading. If we are to get away from what I think my noble friend Lord Byers called the basis of this Bill as a basis for good industrial relations, and move it on to a point where it begins to deal with industrial relations themselves, it is essential that we have something of this nature in I support this Amendment.

LORD BELSTEAD

My Lords, I certainly endorse a great deal of what has been said the noble Lord, Lord Diamond, and the noble Lord, Lord Beaumont of Whitley, about the need to involve employees in the affairs of the undertakings where they are working; the bigger the organisation the easier it is for top management to get out of touch and, particularly, to get out of touch with decisions affecting the working lives of employees. This was the burden of the later remarks of the noble Lord, Lord Diamond, in moving the Amendment.

We on this side of the House feel that, to a considerable extent, this is a matter of communication, and that to some extent Clause 57 will help matters by requiring major employers to issue annual statements to their employees about the undertaking, in the same way as shareholders are entitled to receive their information under the Companies Acts. Moreover the code of practice Consultative Document contains an important section on the subject of communication and consultation. Significantly, there is a recommendation in the code about the setting up of a consultative committee in all establishments with more than 250 people. These are to have an elected membership representing all sections of the establishment. It is true that communication, consultation and participation in decision-making processes are all different things. I hope that your Lordships will feel able to agree that that recommendation in the draft Consultative Document is a very important step in the right direction.

In the view of the Government, experiments in different forms of participation in this field, which go beyond this recommendation, are matters for the organisations which are concerned. Any legislation on this subject would be complicated, and its relationship with company law would have to be studied closely. At the present stage, when the merits of the form and the extent of worker participation are still the subject of debate on both sides of industry, it would be wrong to embody it in the Bill as a principle, as is set out in this Amendment.

There is a further point which arises in the same way as it did on a previous Amendment. The Amendment is a concept and it bestows a function. It calls on us for a securing. This is something different from a general principle. To that extent, Clause 1(1) simply is not the place for it. In some ways this is in the code, where the code envisages that the principal aim of trade unions, the promotion of members' interests, can and should be allied with responsibility for commercial success in the undertaking. Your Lordships will remember from the debate in Committee that the chapter in the Donovan Report did not come out strongly for or against this sort of worker participation on purely practical grounds, not on grounds of ideals. The Donovan Report attached great importance (and I believe those were the words used) to this as an ideal. I believe that was the substance of paragraph 997 of the Report. But it left that a reform of collective bargaining had a prior claim to attention. The majority of the Donovan Commission were daunted by certain practical difficulties which worker/directors inevitably must face. I entirely take the point that this Amendment is not drawn in that way.

The noble Lord, Lord Beaumont of Whitley, reminded the House that there are certain aspects of the drafting of this Amendment which he thought would need, to say the least, tidying up, although he supported it in principle. This Amendment is drawn far wider than the Amendment which the House debated in Committee. This has put the Government in some difficulty. The wording could refer to any of the three levels—plant, intermediate or board level—on which the Trades Union Congress made proposals to the Donovan Commission. But the wording and wideness of this Amendment contain a certain doubt. What, for instance, is an appropriate share? The noble Lord, Lord Diamond, explained quite clearly that his concept of the "appropriate share" was a share in the policies affecting a man's work. This is totally reasonable. Is not the noble Lord then fining the matter down to something which should most certainly not be in general principles at the beginning of a Bill? Are we then not beginning to talk about something which is particular and specific; and do we not receive our answer to the problems contained in this Amendment, and in the Amendment debated by the House in Committee, if we await experiments which are going on at the moment in industry, rather than try to impose a binding matter of principle in this area of industrial relations?

6.10 p.m.

VISCOUNT MASSEREENE AND FERRARD

My Lords, as I said previously, of course I agree with the noble Lord, Lord Diamond, on the principle of workers' participation, but it is a very easy thing to say and a very difficult thing to carry out. My experience has always been in small concerns, and we have always tried to interest the workers in what management are doing. But how it would affect really big concerns, like I.C.I., where decision-making has to be highly technical and by the most astute brains in the country, I do not know. Not that workers might not have excellent brains, but they have not had the opportunity of training for decision-making, so how it would affect large organisations I do not know.

I have found in small organisations—and I may have mentioned this before—that one of the troubles is that if a workers' representative actually sits on the board sometimes the other workers eventually are inclined to regard him as "the boss's man". The point is that when he comes on to the board he changes his opinion, if he is an intelligent man, as presumably he is, because he sees the other side of the question and the problems. It is very difficult to know what "an appropriate share in the company" really means, but if workers had an appropriate share in the company would they take an appropriate share of the risk if things went wrong for the company? There is always that problem. I have always wondered why the trade unions do not invest in companies in which their unions are engaged. After all, trade unions have vast funds to-day, and are big operators on the stock exchange. If they wanted workers' participation in industry to become a reality, the trade unions should really invest in those industries. I have never understood why trade unions do not do that to-day. After all, they have very large capital—a great deal more capital than the average employer.

I should like to support my noble friend who has just spoken. The Amendment is very widely drawn, and it seems to me that it would be very difficult to put into practice, although, I repeat, I agree wholeheartedly with the principle. The more workers in a firm can be educated to understand what is going on, the happier that firm will be. Many firms have tried share schemes by offering the workers shares, but they have not always been satisfactory because some of the workers immediately sell their shares. The workers do not appear to have confidence in the company.

LORD LEATHERLAND

My Lords, I think that the noble Viscount, Lord Massereene and Ferrard, has been barking up the wrong tree. We are not talking about workers on the board; we are not talking about workers as shareholders. We are not going so far in this Amendment as the Liberal Party goes, with its basic policy of co-ownership and co-partnership. A very limited request is made in this Amendment; it asks merely for the involvement of the workers in decisions that affect their work—something quite different from the point of view expressed by the noble Viscount, Lord Massereene and Ferrard.

The noble Lord, Lord Belstead, said that this Amendment has put the Government in some difficulty. I am quite sure that that was far from the thoughts of my noble friend Lord Diamond when he moved this Amendment. Again I have to say that I am disappointed with the response of the Government. I was disappointed that they would not accept the previous Amendment—I seem doomed to disappointment to-day. The excuse put forward by the Government on this occasion is precisely the one put forward in respect of the previous Amendment: that because this matter is mentioned in the code it is not necessary or desirable to mention it in the Bill. As I pointed out on the last Amendment, the Bill will be the law; the code will not. The code will be there in a kind of advisory or consultative capacity, to be taken into account when decisions in regard to the law are made. We have had it expressed to us time and time again that this code bears in its significance a resemblance to the Highway Code, so if things that matter are to be taken into account by the Industrial Court they ought to be in the Bill, and we ought not to content ourselves with having them mentioned in the code.

The underlying question that we are considering is whether workers and their employers shall be enemies or friends. I feel that this Amendment would go a long way towards ensuring a more friendly relationship between them in future than has existed in the past. Employers sometimes issue very stupid orders: they do not do it necessarily out of malice; they do it out of thoughtlessness. Your Lordships are aware of the fact that I have been engaged on daily newspapers for the greater part of my working life, and I remember an occasion, about forty years ago, when a notice was put on the notice board of our daily newspaper saying that members of the staff were not to write for any other paper. Many members of our staff—Hannen Swaffer was one of them—were people who were in great demand as writers in newspapers, magazines and publications of many kinds, and if that order had continued many of us would have suffered a very severe restriction of our income. I myself had built up outside quite a lucrative sideline in political, industrial and diplomatic affairs. We took it seriously. There was immediately a special meeting of the editorial chapel. The editorial chapel, as your Lordships know, is tantamount to a factory gate meeting or a dinner hall meeting at Ford's, and it was decided that the father of the chapel should go to see the editorial director and demand the removal of what they considered a very unfair notice about which they had not been consulted.

It so happened that I was the father of the chapel at that time—that is to say, in working class parlance, I was the chief shop steward—so I took along with me the clerk of the chapel, who was my deputy, and we waited outside the editorial director's door. My deputy said, "Charles, you threaten them with a strike if they do not give way." I said, "You leave it to me; I will negotiate this another way". In due course we were called in, and the first thing I said to the editorial director, who I knew was a great horseman and had a number of horses, "How are your horses?" He said, "They are fine Look at this picture of the one that I bought last week." I said "That's a big one." "Yes," he said, "16½ hands." "Oh," I said, "that's much bigber than my horses." I had a couple of hunters at the time; I was by way of being a fox-hunting man. I said, "One of mine is only 16 and the other is only 15½." I went on to explain the virtues of these horses; I said they were good jumpers. But I did not have to offend him by insisting that my horses could jump better than his horse could. So I said, "Yours, of course, are trained for dressage, aren't they?" "Oh, yes." And so we went on and on for half an hour, talking about the merits of our respective horses. And then, just as an afterthought, I said, "Now what about this notice you have put up?" He said, "I'll have it taken down within half an hour!"

That shows how industrial negotiations can be conducted, and in that case a very likely strike was averted. I am quite sure that that quarrel would never have started if the staff had been consulted in advance. That is all we are asking for in this Amendment. We are not asking for participation; we are not asking for seats on the board. We are not wanting to be shareholders—to which the noble Viscount, Lord Massereene and Ferrard, referred when he said that, of course, if we were shareholders we should get to know all about the company. I would advise him to discuss that with the shareholders in any public company in the land; they know very little indeed. However, all we are asking for is an appropriate share of consultation and involvement where our working conditions are concerned. If the Government refuse to accept that very mild request, I think they are taking a very reactionary, backward view.

VISCOUNT AMORY

My Lords, I cannot resist the temptation of following the noble Lord, Lord Leatherland. Twenty-five years ago I should have been glad to try to follow him in the hunting field, but that is not possible now. However, the noble Lord, Lord Diamond, has with his usual clarity outlined the case for the principle behind this Amendment, and the principle behind it is one which would obtain a wide measure of support in this House. My noble friend Lord Belstead has given us some points, which I think have force, as to why this Amendment would perhaps not fit well into the Bill in this clause. I suppose one must not speak much about the code to-day, as we had a debate on it yesterday, but it certainly gave its blessing to consultation. But I think there is force in this Amendment in the encouragement it gives to going beyond consultation and in working towards decision-sharing at levels closest to where the work is actually carried out by individuals. I strongly support that principle. If a place cannot be found for enshrining the encouragement of that principle in the Bill itself, I hope that my noble friend will suggest to the Secretary of State that the parts of the code which give encouragement to consultation should go a little further than they do, in encouraging growth of the principle of the sharing of decisions at the lower level.

6.24 p.m.

LORD SHINWELL

My Lords, I am sorry that I could not be present during the whole of the debate on Amendment No. 10, but what I have heard somewhat surprises me. Noble Lords seem to be unaware of the fact that the principle embodied in this Amendment No. 10 already appears in an Act of Parliament passed almost 25 years ago. Noble Lords will recall that some months ago there was a dispute in the coalmining industry. That surprised many people because it was said at the time that it was the first dispute in the coalmining industry since the General Strike of 1926. That was an accurate assessment of the position. But what was the reason for the peace in the mining industry between 1926 and 1970 and for part of 1971? I shall give the reason. It is contained in the Coal Industry Nationalisation Act, an Act with which I had something to do as Minister of Fuel and Power in the Attlee Government. If noble Lords will consult—as they are able to do by paying a visit to the Library—the Coal Industry Nationalisation Act they will find in, I think, Sections 46 and 47 a statement which, although in somewhat different terms, is precisely the principle involved in Amendment No. 10 now under consideration.

I happened to be responsible for that myself. When the Bill was prepared we had little at the time to guide us in relation to coal nationalisation. There were very few guidelines. Some pamphlets had been published; there had been discussions relating to the matter over a period of years. Nationalisation of the coalmining industry had been advocated in many quarters, even among coalmine owners themselves, who had come to the conclusion that a modern form of organisation in the coalmining industry was desirable. To the best of my recollection, the part of the Coal Industry Nationalisation Act to which I have just referred is the one which provides for consultation, not only on matters relating to safety and health, wages and conditions of labour, but between those employed in the industry and those responsible for the administration of the industry and the general running of the industry, and on the organisation of the industry and its administration. That is precisely what this Amendment is asking for. It was because that principle was accepted by both sides in the coal industry—those employed and those responsible for administration, the National Coal Board—that it was possible to maintain a long period of years during which there was no talk of strikes; there were perhaps minor disputes but there was no talk of strikes throughout the industry.

When the Coal Industry Nationalisation Bill was prepared that provision was not inserted, but representations were made by the Miners' Federation of Great Britain at the time, and supported by technicians and very eminent mining engineers in the industry—the late Sir Charles Reid, Humphrey Brown, Mr. Collins. A number of those men, apart from Sir Charles Reid, are still associated with the coalmining industry and indeed with other industries in the country. We thought it desirable to insert the kind of provision to which I have just referred. Noble Lords should consult the Act and they will find that it contains, not quite the language contained in this Amendment, but the language which is the basis of the principle which the noble Lord, Lord Drumalbyn, is being asked to accept. It has worked satisfactorily.

It is true that although pit committees were set up for each pit and there were area committees—Durham, Northumberland, Yorkshire, Lancashire, South Wales and the like—occasionally the organisation for consultation broke down. There were disputes, but generally speaking peace was maintained. I venture to suggest that peace will not be maintained in industry in the future, despite the code of practice and despite the general provisions of the Industrial Relations Bill when it becomes an Act of Parliament and when its provisions are fully implemented, unless there is a large measure of participation. Of course when there are technical decisions to be taken they obviously must be left to those who are experts—for example, as with mining engineers; but on the general administration of the industry there has been complete participation.

There is another exception to which I am bound to refer. I want to express myself on this matter without any exaggeration. I refer to price levels. That was a matter not for the workers in the industry, not even for the board itself. That was left to the discretion of the Minister, and it still remains in the discretion of the Minister. Otherwise all questions relating to the organisation of the industry—whether, for example, pits should be maintained even if they are regarded as being uneconomic, or whether they should be closed down; concerning the employment of those associated with the industry and those who depend upon them for their livelihood—were the subject, and still remain the subject, of discussion and consultation, and for the life of me, I am unable to understand why the Government refuse to accept the principle that is embodied in the Amendment, even if the language requires modification in some respects.

I agree that it does not always follow that we should take precedent as our guide for future legislation, but if, generally speaking, an item of legislation has worked to the satisfaction of both sides in the industry (although occasionally there are differences of opinion) is there any reason why the Government should change it? This language has been used so frequently in your Lordships' House that I am reluctant to indulge in repetition. It is the purpose of both sides of your Lordships' House—and the same applies to the other place—to promote mutual, beneficial, healthy, wholesome relations between both sides in industry, and for that there must be a measure of participation.

I should now like to mention another matter. It may seem to your Lordships to be somewhat irrelevant but I regard it as having some bearing on the matter under review. I refer to the position of shareholders. Often it is said that we must leave the decision in the hands of those who provide the capital. But does that happen in practice? A prospectus is issued, advertisements appear in the newspapers and elsewhere and potential investors are asked to invest in a particular undertaking. They do so, in the hope of gaining some profit by way of dividends; and the assumption is that because of the injection of capital they are in control of the industry. But in practice that is not true. It is usually left to a body of directors appointed by the shareholders. Sometimes these directors are irremovable, despite objections by shareholders. We know that from the reports of company meetings.

So if there is to be participation at all, who is it to be between? Not the shareholders, who have little or no say in the matter. It must be the directors, those at the top who are responsible for the running of the industry. They are responsible to the shareholders because the shareholders have injected capital, without which the undertaking could not have developed, and they are responsible to those without which the industry could not carry on at all; namely, the workers in the industry, whether manual or white collar workers.

There is a case for this. I agree that if we are to approach effective participation it may require to be done gradually. We cannot effect this transformation overnight, although there has been strong advocacy for participation ever since I can remember—almost ever since I entered public life. I can remember so many long years ago the controversies that occurred in this country on a high intellectual level, much above my then standard, or even the standard that I can claim at the present time, on the question of what was called guild socialism. It was advocated by no less an authority than G. D. H. Cole, who was of very high intellectual stature, and the purpose was to bring both sides of industry together. There was no question of excluding profit altogether: there was to be an element of profit although it was to be limited in character, but both sides were to share in the administration of the industry—in other words, participation.

Following upon that, there was controversy which took the form of a demand for industrial democracy. I am really surprised—and I say this with great respect—at some noble Lords who do not seem to have read the pages of political history. They do not even seem to be aware of Mr. Harold Macmillan, who became Prime Minister and, on the whole, was probably as good a Prime Minister as most Prime Ministers I have known during the whole of my public life. He was certainly shrewd, calculating, sometimes ruthless, but he knew what he was about. But I can recall in the other place thirty-odd years ago, that year after year Mr. Harold Macmillan, sitting quite close to where I sat, advocated the middle way and demanded public utility undertakings with full participation of the workers with those responsible at the top. Indeed, he published several volumes on the subject. I am quite certain they are to be found in your Lordships' Library. If he departed from that principle of the middle way, well, he just fell by the wayside. That has happened to many others—no names, no packdrill.

Therefore, I cannot understand why noble Lords should object to this principle being accepted, and I venture a warning. If in some form, even in a modified form, it is regarded as unacceptable by your Lordships' House then, despite all the provisions of the Bill which is now under review, there will be no effective peace in industry.

6.40 p.m.

LORD SHACKLETON

My Lords, I apologise to the noble Lord, Lord Belstead, that I was unable to hear his speech. I was actually engaged in talking to the Government Chief Whip. But I heard the opening speeches and I particularly wanted to take part in the debate on this Amendment, partly because I also restrained myself and did not add to the number of speeches yesterday. Having had, as have other noble Lords—I know the noble Viscount, Lord Amory has—a good deal of experience of actually working in organisations where there was a degree of participation in the decision-making processes, I cannot for the life of me see why the Government cannot accept this.

I would like to put this very frankly to the noble Lord, Lord Drumalbyn. My noble friend who has just spoken has traced the history of this type of proposition. It has attracted people of goodwill for a very large number of years. I myself went through the guild socialism stage when I was very young, and although the Labour Party has always rejected a syndicalist solution, there were important concepts of the kind my noble friend has just mentioned. I would like to say very seriously to noble Lords opposite that it is something which I think would be in the interests of the Government, and I am saying this quite sincerely, and indeed in the interests of the Bill. They know that we are heavily opposed to the general type of approach that the Government have taken; we are more attracted by the approach contained in the introduction to the code, the views that I am quite certain Mr. Carr himself holds in these matters.

It is known to anybody with experience in this type of industry that where there is reasonable discussion and even participation in a difficult decision the workers will give a loyalty, and will sometimes assist in taking a difficult decision. We now and again read examples in the newspapers of workers who have given up a weekend, or a public holiday, to meet a particular deadline to help a company that is in difficulties. It may not be fully appreciated by noble Lords that there is an instinctive loyalty on the part of workers for their firm if they respect the management. Anyone who has spoken outside factory gates or has talked with shop stewards, or indeed has participated in this from a management point of view, as I have done, will realise that there is a fund of good will towards the effectiveness of the enterprise which, as my noble friend Lord Shinwell has made clear, cannot possibly be provided by the shareholders. I will not go into the outdated concepts of property of this kind, which could provide the subject for another debate altogether.

We have put forward an Amendment which is not very revolutionary. We have not suggested, even, that there should be representation on the board. There are arguments for and against this; there is provision for this sort of thing in the nationalised industries, and there are striking examples of it. We are seeking to get it established that the workers in a particular firm have a stake in that firm; their lives will be fuller, it will lead to an enrichment if they are enabled, in areas where it is appropriate—and there are certain areas where it is appropriate—to help in the decision-making process. We are not saying in this Amendment that the responsibilities of management should be reduced. This certainly calls for greater skills and greater intelligence and greater goodwill on the part of management, but good management seeks to do this anyway. This is the important point: there is an opportunity, and it could indeed contribute to the atmosphere with which this Bill is received if the Government will accept this as a fundamental principle. I would like to suggest that your Lordships should support this Amendment.

It will be possible, if the Government find faults in this, for them to amend it at a later stage. If they do not want to do so on Third Reading they can do so when it goes back to another place with the Lords Amendments, which are susceptible of amendment. But this is really a test of the understanding of the Government, and I suspect that the noble Lord, Lord Drumalbyn, would like this to happen in industry; I cannot believe that he is not in favour of the principle that is involved in this Amendment. His only objection can be that it is unsuitable to be put in this Bill. It will change the nature of this Bill, and I hope, therefore, that we shall have some further expression from the noble Lord. Lord Drumalbyn that he will accept this. It will be possible, as I say, to amend it later. But I do say to noble Lords on all sides of the House that this is an opportunity for your Lordships to make a real contribution. Speeches from this side have been moderate. The Liberal Party have been pressing this. Sometimes, let us face it, the other political Parties have not always in this matter taken as active a part as they should, but the Labour Party moved rapidly back to some earlier first principles. I really ask the noble Lord, Lord Drumalbyn, to accept this Amendment. It would be a sign of good will on the part of the Government, and one which I think could make a great deal of difference to the future success of this legislation.

LORD DRUMALBYN

My Lords, we have had a very interesting debate, and I really mean that, on this particular Amendment. The noble Lord, Lord Shackleton, is perfectly right, of course: not only I myself but the Government are in favour of this principle. Our difficulty is to square it with Clause 1. Perhaps I could explain the difficulty. I listened with great interest, as usual, to the noble Lord, Lord Shinwell, and I might say perhaps it was a slightly nostalgic experience, because the first committee I ever sat on in the House of Commons was when he was introducing his Coal Industry Nationalisation Bill into the House then, and I well remember quite a lot of what was in the Bill from those debates, so that he struck a chord there.

Can I say this to your Lordships? The noble Lord, Lord Leatherland, said that he would rather see this principle, because of its importance, in the Bill than in the code. But what we have to consider is where it will be most effective. I take the point of the noble Lord, Lord Shackleton, that from a propaganda point of view, in a way, this might be more effective in the Bill. But what the noble Lord, Lord Shinwell, was talking about was the Act which nationalised coalmines and made provision for their organisation. He himself appointed the Chairman, and laid down in the Bill what were the duties of the management in the coalmines. I might also add here—the noble Lord, Lord Taylor of Mansfield, will agree with me in this—that the legislation for coalmines in general is probably far more widely read and understood, and learned by heart in places, because of the safety factors, by coalminers, than legislation in any other industry in the country. This Bill is not going to be read by everyone in the country.

LORD SHACKLETON

My Lords, if I may intervene, speaking from direct knowledge, any manager who is responsible for the implementation of legislation knows his legislation and has it, or a suitably explained version of it, in his office, and it is on the manager we want to put this.

LORD DRUMALBYN

My Lords, I take the point that it is on the managers that he wants to put this duty. I myself am well aware of this practice and have had to follow it out in several languages. I was only saying that this practice of reading legislation applies right through the coal mining industry, not just to the managers. I was making it clear that so far as the legislation is concerned the Coal Industry Nationalisation Act will be in a very different position indeed from this particular Bill, because the coal industry was one in which they provided for the organisation and laying down of duties and responsibilities, prohibitions, and the like. If we put this Amendment into Clause 1 of the Bill it would have no such effect. Indeed, it would have no effect at all from the legal point of view. These principles have independent effect only in so far as they are regarded by the authorities specified in subsection (2) and reflected in the later provisions of the Bill.

Clause 1 is simply intended to contain principles which are reflected in the substantive provisions of the Bill. One cannot say that this is reflected in the substantive provisions of this Bill, and therefore to put it in Clause 1 lays no duties on anybody at all, and all that happens is that it has to be regarded from the point of view of the authorities in subsection (2). I am talking of the actual effect. So far as the code is concerned, the case is very different indeed. This is a code of conduct that we hope will be observed by everybody. I would urge noble Lords who feel strongly about this matter to make representations, and see that representations are made, if they think that the section in the code on communication and consultation does not go far enough, because I assure noble Lords that that is the right place for it to be. I see that my noble friend Lord Amory is not here at the moment, but I took the liberty yesterday, when we were talking about the code, of quoting exactly the same passage from my noble friend's speech as did the noble Lord, Lord Diamond. The point my noble friend made was that it was through consultation that you get increasing participation. I am sure that this is right. I am sure that this is the right way in which to approach this matter.

I willingly take note of what the noble Lord, Lord Shackleton, has said, and I assure him that between now and the next stage we shall consider what he has said very carefully indeed. Our minds are not closed on this matter, but I still think it would be wrong to accept this Amendment. As the noble Lord, Lord Beaumont of Whitley, indicated, it is not perfect in its present stage, but that is a matter which I think we can disregard. However, it would be wrong to accept the Amendment in this part of the Bill. I will most certainly consider whether it is at all possible to put this idea somewhere in the Bill, because the noble Lord has made a strong case for it. However, I must make it clear that I do not see how we can put it into the Bill except in a purely advisory way. It will not have any legislative effect. I am impressed by the fact that the noble Lord feels that it would have an important effect in other respects, and it is for that reason that we shall consider it. But I strongly believe that the right place for it is in the code and not in the Bill, because that is where it is going to be effective. However, I shall be glad to consider what the noble Lord says.

6.55 p.m.

LORD DIAMOND

My Lords, we have certainly had a most valuable and interesting debate, and a somewhat sympathetic response by the Government. But the Government, and the two noble Lords who have expressed the Government's view, will not be surprised or feel it discourteous on my part if I go on to say that I do not think that they have taken our point sufficiently to heart, and I do not consider that they have fully responded to the impressive and powerful speeches made by my noble friends the Leader of the Opposition and Lord Shinwell, who spoke with such knowledge and experience obtained from the time when he was a Minister and taking legislation in this very important field through the House of Commons.

The answer of the Government really falls into several parts, and it is not very solid in any one of them. First of all, the noble Lord, Lord Drumalbyn, says that this Amendment would not have a very considerable legislative effect. We settled that point right at the start of the Bill when the noble Earl, Lord Jellicoe, made it clear, in response to my suggestion that the whole of Part I had no legislative effect whatsoever, that I was nearly right—not quite right, because there was this effect, namely, that certain bodies had to pay regard to it. That is the only legislative effect, and that would be precisely the effect of this Amendment if it were added as a principle: it would have to be regarded by those people mentioned in subsection (2), whose duty it is to have regard to it. So there is no question of its being any more inappropriate than any of the other principles which are included in the Bill. The principle of free association, the principle of freedom and security for workers and so on, are all principles which are there for the authorities mentioned in subsection (2), the Secretary of State and so on, to have regard to. Therefore I do not think that the noble Lord is on anything like persuasive grounds when he says that it is inconvenient to incorporate a principle—with which he is in very considerable sympathy—at this stage of the Bill.

LORD DRUMALBYN

My Lords, I think this is a very important point. The noble Lord really is not right in saying that the other principles are not reflected. Rather, it is a two-way thing; we think that the principles and the provisions of the Bill reflect each other, but they are very much involved in the rest of the Bill. There is a great deal of the rest of the Bill that has to do with these principles.

LORD DIAMOND

My Lords, I think I am still right in saying that these principles have no legislative effect, other than that those people referred to in subsection (2) have to have regard to them, and we are suggesting that they would be having regard to insufficiently expressed, insufficiently contemporary and insufficiently beneficial principles in the field of industrial relations if this principle were omitted. It is an important principle and it cannot be omitted from any statement of principles of the kind that Clause 1 embodies without weakening that set of principles and making the gap immediately evident. The noble Lord, Lord Drumalbyn, is not on persuasive ground when he says that he must reject the Amendment because it is not very convenient to incorporate it in its present place. He then goes on to say that the appropriate place in which to incorporate it is in the code. It is not in the code at the moment, is it? The Government have not put it in the code. Of course we should like to see it in the code as well, but the noble Lord cannot escape responsibility for not having it in the Bill by saying that it is in the code. We are grateful that he said that it should be in the code, or that he will listen sympathetically to representations made that it should be in the code—and those representations will certainly be most forcefully made—but I am making the simple point that it is not in the code at the present time. What is in the code is the heart of this matter, and as to the heart of this matter neither noble Lord speaking on behalf of the Government has helped us. They have not dealt with the point at all. What is in the code is the statement that trade unions can promote their members' interests effectively only if they accept that, in common with management, they have an interest in and a responsibility for the success of the undertaking. This involves co-operation in promoting efficiency and good industrial relations. That is the first statement of principle in the code, under the heading of Trade Unions, stating that the first requirement is involvement.

I have suggested how involvement can be created, and I know that involvement is created in that way. Anybody who has read the literature, knows that what I have suggested has been the case for at least 50 years. The Canadian experience is immense, the literature is immense, and, far from its being revolutionary as my noble friend the Leader of the Opposition has said, these conclusions were reached nearly 50 years ago, in my own experience. But I go further than that. I say not only is it true that participation produces a sense of involvement, but I know of no other way. That is an extremely bold statement to make, but I really know of no other way. Certainly, what I know is that this is the heart of the problem and neither noble Lord speaking for the Government has suggested any other way. They say that they want involvement, and we agree that they want involvement. All we are asking them is: how do they propose to get it? They are the Government, this is the Government's Bill; so how do they propose to get it? It is no use saying to me, "The methods we propose are not ideally suitable for this part of the Bill; they are very good methods, but they ought to be incorporated in the code." We are asking the Government: how are they going to get the involvement?

LORD DRUMALBYN

My Lords, may I answer that, because it would be fair to quote the very first sentence of the section on Communication and Consultation, which states: It is important for efficiency and for good industrial relations that employees should feel that:

1. a they are kept informed on matters which concern them;
2. b their views are sought on existing practices and on proposed changes which would affect them."

That is certainly involvement.

LORD DIAMOND

But, my Lords, what we propose goes quite a good deal further. I was considerably put off by the noble Lord, Lord Belstead, who said that the answer is in the field of communications; that this is not the answer. We are not seeking a situation under which the proprietors or the directors or the managers tell people what to do, and what decisions they have reached. We are

not seeking a situation where there are excellent methods of telling A and B what has been decided in their interests and for their good. We are seeking a situation in which A and B themselves have an appropriate share in reaching the decisions. So I am not at all impressed by the reference to communications.

What I am saying to the House is that I am afraid there is a real difference of view here. It is not merely a matter of what is the appropriate place, either in the Bill or in the code. There is a real difference of view as to how far one is prepared to go to encourage management in their responsibilities. Some are so frightened of participation in management, which we have not suggested here—we have not suggested worker-shareholders or worker-directors or anything of that kind; we have gone a very short distance indeed—and there is such anxiety about taking one step towards giving a very modest share in the same way as the best firms such as I.C.I., already do, with which I have no complaint and they would not need to alter their practices if this paragraph were put in the Bill, that the Government are not prepared to do what a number of their own supporters and the Liberal Party have said should be done, and what we are saying should be done, which is to give a modest share in the decision-making processes so that the sense of involvement can be created. That represents a real difference in attitude. We shall certainly press strongly for the proper inclusion of this provision in the code, but we also think that the Bill is naked without it. Therefore, we shall ask the House to support us in inserting this in its appropriate place.

7.5 p.m.

On Question, Whether the said Amendment (No. 10) shall be agreed to?

Their Lordships divided: Contents, 48; Not-Contents, 90.

CONTENTS
Addison, V.	Champion, L.	Hilton of Upton, L.
Archibald, L.	Crook, L.	Hoy, L.
Beaumont of Whitley, L.	Diamond, L.	Hughes, L.
Bernstein, L.	Donaldson of Kingsbridge, L.	Jacques, L.
Beswick, L.	Evans of Hungershall, L.	Janner, L.
Blackett, L.	Foot, L.	Leatherland, L.
Blyton, L.	Gardiner, L.	Lindgren, L.
Boothby, L.	Garnsworthy, L. [Teller.]	Lloyd of Hampstead, L.
Brockway, L.	Henderson, L.	Maelor, L.
Buckinghamshire, E.	Henley, L.	Milner of Leeds, L.
Burntwood, L.	Heycock, L.	Nunburnholme, L.
Phillips, Bs. [Teller.]	Shackleton, L.	Taylor of Mansfield, L.
Platt, L.	Shinwell, L.	Thurso, V.
Plummer, Bs.	Slater, L.	Wells-Pestell, L.
Raglan, L.	Stonham, L.	White, Bs.
Rochester, L. Bp.	Stow Hill, L.	Wright of Ashton under Lyne, L.
NOT-CONTENTS
Aberdare, L.	Derwent, L.	Milverton, L.
Ailwyn, L.	Digby, L.	Monck, V.
Allerton, L.	Drumalbyn, L.	Mountevans, L.
Alport, L.	Dudley, E.	Mowbray and Stourton, L.
Auckland, L.	Eccles, V.	Northchurch, Bs.
Balerno, L.	Ellenborough, L.	Oakshott, L.
Balfour, E.	Exeter, M.	O'Neill of the Maine, L.
Balfour of Inchrye, L.	Falkland, V.	Rankeillour, L.
Beauchamp, E.	Ferrers, E.	Rathcavan, L.
Belstead, L.	Ferrier, L.	Rhyl, L.
Berkeley, Bs.	Fortescue, E.	Rochdale, V.
Boston, L.	Fraser of Lonsdale, L.	Ruthven of Freeland, Ly.
Bradford, E.	Gage, V.	St. Aldwyn, E.
Braye, L.	Goschen, V. [Teller.]	St. Helens, L.
Brooke of Cumnor, L.	Gridley, L.	St. Just, L.
Brook of Ystradfellte, Bs.	Grimston of Westbury, L.	St. Oswald, L.
Brougham and Vaux, L.	Hacking, L.	Sandford, L.
Burgh, L.	Hailsham of Saint Marylebone, L. (L. Chancellor.)	Sandys, L.
Clifford of Chudleigh, L.		Selkirk, E.
Clwyd, L.	Hawke, L.	Sinclair of Cleeve, L.
Coleraine, L.	Howard of Glossop, L.	Skelmersdale, L.
Conesford, L.	Hylton-Foster, Bs.	Stonehaven, V.
Courtown, E.	Ilford, L.	Strathclyde, L.
Craigavon, V.	Kemsley, V.	Teviot, L.
Crathorne, L.	Kilmany, L.	Thorneycroft, L.
Crawshaw, L.	Latymer, L.	Vivian, L.
Cromartie, E.	Lonsdale, E.	Wakefield of Kendal, L.
Daventry, V.	MacLeod of Borve, Bs.	Ward of Witley, V.
Davidson, V.	Massereene and Ferrard, V.	Windlesham, L.
De Clifford, L.	Mills, V.	Wolverton, L.
Denham, L. [Teller.]

On Question, Amendment agreed to.

Clause 3 [Approval by Parliament of code of practice and revisions of code]:

7.13 p.m.

LORD DRUMALBYN moved Amendment No. 11: Page 3, line 1, after (" shall ") insert (" after consultation with the Trades Union Congress and the Confederation of British Industry ").

The noble Lord said: My Lords, in replying to an intervention by the noble Lord, Lord Brown, on Amendment No. 17 in Committee, I said I would consider the introduction into this clause of what he described as, the normal duties that a Government have accepted in a number of Acts in regard to consultation ".—[OFFICIAL REPORT, 3/5/71, col. 56.] This is on revisions of the code; and I indicated later, in reply to the noble Lord, Lord Champion, that I hoped something could be done to meet the wishes expressed on both sides of the Committee. With that assurance, the noble Lord withdrew his Amendment.

After careful consideration the Government have decided to accept that Amendment, and I now move it in identical terms. In doing so, I am conscious of the apparent limitations of this form of words, to which I referred in Committee, and I should like to make it clear that the Amendment does not mean that only the T.U.C. and the C.B.I. will be consulted. My right honourable friend has made it clear that he expects to have the widest possible consultation about revisions of the code, as well as of the code itself in its first introduction. The Amendment will not prevent that. The Secretary of State always intended to consult with the T.U.C. and the C.B.I. on every revision of any consequence, and they will all probably be of consequence. What the Amendment does is to oblige him to consult the T.U.C. and the C.B.I. on every revision, and to give them an opportunity to express their views.

Some noble Lords may feel that there are other bodies which should also be consulted. Your Lordships will appreciate the difficulty of drafting a provision which would cover such other bodies without giving rise to hard feelings about who should be consulted in any particular case. The Amendment simply makes it clear that the Secretary of State must consult the T.U.C. and the C.B.I. at least. I hope the House will be content to leave the Secretary of State to decide which other organisations to consult in each particular case. The only practical alternative to this Amendment would be one which, in effect, required the Secretary of State to consult such organisations of employers and of workers as appeared to him appropriate, but that would have the disadvantage to which I have referred. So the Government came to the conclusion that the special position of the T.U.C. and the C.B.I. should be acknowledged in this way. In view of the debate which we had in Committee, I commend this Amendment to your Lordships with confidence. I beg to move.

BARONESS WHITE

My Lords, I am sure we are all appreciative of the action of the noble Lord and of the Government in proposing this Amendment. Your Lordships will appreciate that in the Bill as it is drafted there is no provision for any consultation on the revision of the code other than with the Commission; and although it may well have been the intention of the Government—I have little doubt that it was—many of us felt that it was desirable to have this quite specifically spelled out in the Bill, and we are therefore very happy that the Government should have seen fit to do so.

I think we understand the difficulties of the Government in going wider than the two organisations which are included in the Amendment. Some of your Lordships may recall that at an early stage in our deliberations in Committee I raised some particular difficulties which had arisen in regard to certain organisations, and the noble Lord, Lord Belstead, was good enough to write to me about them. I raised problems which had been brought to my notice by the National Union of Teachers and the National Association of Local Government Officers; and I think this was the first occasion on which we raised a matter which caused a good deal of discussion later on about the difficulties of those who are concerned with the representation of professional people in one form or another who are also members of trade unions.

That is not quite the point here, but I am very glad to have on record the assurance of the Minister that it will be the intention of the Government to consult with other organisations, in addition to consulting with the T.U.C. or the C.B.I., as the case may be, if they have a particular interest in that section of the code which is under consideration. I would assume also that, that being so, it would be open to such an organisation to take the initiative, to approach the Government if they felt some revision of the code was desirable, if it had not worked out well in practice, if their members had in some way been disadvantageously affected or if they thought they could be better dealt with under somewhat different arrangements in the code. So I think it is very valuable to have this assurance that any organisation which properly can represent people who will be affected by the code need not necessarily confine their representations to the T.U.C. or the C.B.I. I take it that this is the intention. There was some misapprehension upon this point, and I think it is quite important.

There was some feeling that it would be only the T.U.C. who could make representations on behalf of certain bodies or, mutatis mutandis, only the C.B.I. I would be happy if the Minister could say this in terms; that, even though an organisation may be affiliated to the T.U.C., that does not confine their representations to those which may be carried out by the T.U.C. There may be circumstances in which an organisation has very special problems of its own which may not affect all the unions, and would like to have direct access. I would hope that it can be made clear that whereas in most instances consultation with the T.U.C. and the C.B.I. may be adequate, a right of direct access should be there if the organisation concerned feels that it should make direct representations to the Minister about the code. I would welcome the Minister's comments on this matter. I think it would be a comfort to certain organisations if they felt that this was fully understood.

LORD PLATT

My Lords, the noble Lord, Lord Shackleton, spoke of the last Amendment as being a test of the understanding of the Government. This is also a test of the understanding of the Government. I think that if the Government are determined that the doctors do come into this Bill they cannot go on ignoring them and talking about them as if they did not exist. The noble Lord, Lord Drumalbyn, in his opening speech on this Amendment made it clear that this did not exclude other people being consulted. That I accept, although I would rather have it written in a few word. But I do not think that that covers the objections. I think that the objections are that the T.U.C. and the C.B.I. should be consulted in every case. This is an Amendment about alterations to the code and about who should be consulted when alterations to the code are made. We discussed the code yesterday and were left in no doubt that the Government considered that the code was a code of practice and as such it contained references to moral obligations and ethical practices. It has now gone so far as to mention the professions in one sentence where it says something about their own ethical codes and their not being asked to do anything which would transgress them.

Implicit in that, if we accept it, is that those codes may be at variance with the ordinary code of industry as expressed through Government thinking—which I think is purely the thinking of management and workmen in a factory. Just as the noble Baroness, Lady White, has doubted whether it is relevant to the teaching profession that its behavioural practices should have to be accepted by the T.U.C. and the C.B.I., so I think it is quite absurd in the case of my own profession. Although I like to think that I am speaking for the professions in general, my own profession is in a particular difficulty—and perhaps I have not stressed this enough—in that now nearly all of us are employed people in the Health Service. I do not mind that at all; but whereas the legal profession is largely still self-employed, the medical profession is almost wholly employed. But they are not employed in industry and most of them do not claim any particular allegiance to the T.U.C. With respect, I should have thought that the idea of behavioural practices in the medical profession being submitted to the C.B.I. is not completely acceptable, at any rate to me.

LORD DRUMALBYN

My Lords, I will reply briefly to the noble Baroness, Lady White, and thank her for the reception that she gave to the Amendment. I am not certain that the noble Lord, Lord Platt, was completely happy about it. The answer to the noble Baroness's question is this. The Department of Employment, through their various tentacles, are in touch with industry and with the representative bodies all the time and they will themselves be getting experience which may lead to the revision of the code. Coupled with that, representation can be made, obviously at any time, to the Department of Employment that the shoe pinches somewhere and that the code should be revised. Then, at a given point in time, the Secretary of State will feel that the time has come in the light of experience to revise the code. At that stage he will consult with the T.U.C. and the C.B.I. and if something affecting a particular industry or vocation is involved, no doubt with that particular vocation and with others as well. Then he prepares the draft and sends a copy of it to the for their comments, and no doubt at that time will consult with any other bodies that he thinks should be consulted. One can be assured that the range of consultation will be as varied as is desirable in each case.

The noble Lord, Lord Platt, always wonders how far this aspect is going to affect his own very important profession on which we depend so much. In the first place, it applies only to revisions of the code to the extent that the code applies to his profession. No doubt his profession also will be making representations if there is anything in the code which in their opinion needs adjustment so far as they are concerned. In that way they would be brought in, and also if the Secretary of State thought it likely that any revision may affect them, they would be consulted. One must bear in mind that in a code affecting a wide variety of systems of employment throughout the whole country there will be infinite gradations in the extent to which it impinges on the day-to-day work of management and workers in any particular sector. It will impinge in different ways, and in some places it will impinge very little at all. One must recognise that. I do not think that the noble Lord need be unduly worried. I quite understand that he does not like the idea of the code covering members of his profession, or at any rate that part of his profession in general practice; but still, they are workers within the meaning of the Act.

LORD DRUMALBYN moved Amendment No. 12: Page 3, line 7, leave out from (" and ") to (" shall ") in line 8 and insert (" shall arrange for any such advice to be published in such manner as he may consider appropriate; and, if the Secretary of State determines to proceed with the draft, he ").

The noble Lord said: This Amendment fulfils an undertaking I gave in Committee on May 3 to consider Amendment 19 (as it then was) tabled by the noble Lord, Lord Beaumont of Whitley, whom I regret to see is not in his place at the moment. This Amendment will have the same effect as his, but in order to achieve consistency with other provisions in the Bill relating to publication of the C.I.R. reports, a slightly different form of wording has been used. I hope that your Lordships will agree that it achieves precisely what he wanted to achieve. I beg to move.

LORD DIAMOND

My Lords, I certainly hope that the Amendment will be agreed to. I express my appreciation to the noble Lord for having brought it forward, after what was, I thought, a very persuasive debate, and he has brought it forward in what I thought a very understandable and appropriate form. Certainly on behalf of Her Majesty's official Opposition I can offer our thanks and our acceptance. I do not think that I am ever up to saying with any authority what the Liberal Party will or will not do on any particular occasion; so I hope that the noble Lord will excuse me from that responsibility. I am sure that if they were here they would be making very appropriate and courteous comments to the noble Lord for the trouble that he has taken.

LORD DRUMALBYN

My Lords, I would suggest that this might be an appropriate moment, it being exactly 7.30, for the House to adjourn during pleasure until 8 o'clock.

[The Sitting was suspended at half-past seven o'clock and resumed at eight o'clock.]

THE LORD CHANCELLOR

My Lords, I have received a Manuscript Amendment, which is appropriately called at this point, in the names of the noble Lords, Lord Diamond and Lord Stow Hill. It would therefore be No. 12F, if it had received a number. The Amendment is somewhat long, a page and a half. In the Second Report of the Procedure Committee of February, 1971, it is stated as follows: Manuscript amendments are not out of order on Report, but the disadvantages and inconvenience referred to in the note on the moving of manuscript amendments in Committee are even greater on Report than at the Committee Stage. The Committee further recommend that when a manuscript amendment is moved, the text of the manuscript amendment should, unless the House otherwise directs, be read out to the House, not only by the Mover, but also by the Lord in the Chair (or on the Woolsack) in putting the Question to the House; and that this should be included in the revised Companion. There is more than a folio of this draft Manuscript Amendment and at the end I shall have to take the direction of the House as to what I shall have to do.

LORD STOW HILL

I do not know whether technically I should be right in rising upon what in another place would be called a point of order. I had very much in mind the inconvenience to which the noble and learned Lord has referred. It had been my intention to ask the indulgence of the House to allow me to summarise the Manuscript Amendment when I explained the reasons why I thought it right to put it before the House at this very late stage. I hope that the House will think that an appropriate and convenient course, and if they do so I should like to set out my reasons for taking that course.

The Manuscript Amendment was as follows:

After Clause 3, insert the following new clause: (".—(1) In any proceedings before the Industrial Court or an industrial tribunal under this Act, any code of practice which is for the time being in force under this Act (in this section called ' the code ') shall be and of any revision thereof.") (2) The provisions of the code shall constitute a prima facie test of the reasonableness or unreasonableness of the conduct of any party to those proceedings or of his representative or agent. (3) Any party to those proceedings may by way of answer to any complaint made in respect of his own conduct or the conduct of his representative or agent which is contended to constitute or to have constituted an unfair industrial practice or to amount or to have amounted to a contempt of the Court or the tribunal may contend that having regard to all the circumstances including his or their compliance or attempted or intended compliance with any provision of the code, he ought fairly to be excused or exonerated, and if it so appears to the Court or the tribunal, it may relieve him wholly or in part from any liability in respect of his said conduct. (4) In so far as it is necessary for the Court or the tribunal in those proceedings to apportion between the several degrees of responsibility (if any) for the incident, matter or dispute giving rise to the proceedings, it shall for the purposes of making such apportionment take into consideration the extent of the compliance by each party or his representative or agent with any relevant provision of the code. (5) A failure on the part of any person or of his representative or agent to observe any provision of the code shall not of itself expose him to any proceedings under this Act or render him liable therein. (6) In any proceedings under this Act the Court or the tribunal shall so far as relevant take into consideration the extent to which (if at all) any party to the proceedings who is an employer has effectively brought to the notice of all or any of his employees the provisions of the code and of any revision thereof, and without prejudice to the foregoing it shall be the duty of every employer to whom this Act applies to supply to each of his employees on demand one copy of the code and of any revision thereof.")

THE LORD CHANCELLOR

My Lords, does the noble Lord rise to move?

LORD STOW HILL

My Lords, I am not sure that the Amendment is about to be called. I thought that the previous Amendment, No. 12D, had not yet been called.

THE LORD CHANCELLOR

My Lords, I was told that this Amendment was due to be moved after Clause 3 and we have now completed Clause 3. This is one illustration of the disadvantages of a Manuscript Amendment. I drew the attention of the House to the Manuscript Amendment at the moment when I was told it was likely to be moved.

LORD STOW HILL

My Lords, in that case I desire to move the Manuscript Amendment and in doing so to give some explanation to the House. When the Marshalled List was prepared, the only Amendment upon it dealing with the topic which I desire to raise was Amendment 12D, to leave out Clause 4. Since then I confess to the responsibility for having taken steps to promote the circulation of a Manuscript Amendment. In moving this Amendment, may I offer a sincere apology to your Lordships for inflicting the inconvenience upon the House which I know any Manuscript Amendment must involve, particularly one of a page and a quarter in length.

The object of both these Amendments is to invite the Government to consider whether Clause 4 is appropriate to achieve the objective which I think the whole House has in mind—to give effect, in a form which would be acceptable, to the provisions of the code. At first, it seemed to me that the appropriate way in which to raise this point was to move an Amendment leaving out Clause 4. Then it seemed to me and to those advising me that it was perhaps unhelpful to do this and criticise the existing language of Clause 4 without submitting the sort of language which we think would come near to being satisfactory.

The Manuscript Amendment is quite admirably drafted and a great deal of thought has gone into its preparation. In saying so, I hasten to add that neither the drafting nor the thought is mine. I am indebted to a distinguished member of the Bar, Mr. Muir Hunter, for all the work he has put into the preparation of this Manuscript Amendment. I hope that your Lordships will excuse me for presenting it so late to the House, but it was put into my hands very late, too late to get it into the Marshalled List. I was confronted with the dilemma of either not placing it before the House or of presenting it to the House with such explanation and apology as I have ventured to tender to your Lordships. I hope that the House will think that in all the circumstances the decision I took is acceptable to the House.

The noble and learned Lord on the Woolsack has reminded the House that the rule contained in the recommendation of the Second Report from the Select Committee on the Procedure of the House requires that, unless the House otherwise decides, a Manuscript Amendment should be read out. Obviously, it would be inflicting a great burden upon your Lordships if I were to read out a page and a half of closely-thought-out language. What I would desire to do, if it were acceptable to the House, would he to summarise in a few words the provisions of each subsection. If your Lordships think that convenient, I should like to adopt that course. I hope that the House will allow me to proceed on that basis. If that is so, may I go back to the principle to which I seek to address myself in the two Amendments. I think that on all sides of the House we are desirous of achieving the same objective—that the code should have influence in the conduct and formulation of industrial relationships.

My Lords, it is not simply to be a cipher; it has to be something which is to afford a real guide and lay down valuable standards in the development of industrial relations. That, I feel confident I can say, is a common objective. It is not within the scope of the debate which I am at present initiating to discuss the existing code. That may be a good code or a bad code, and different views have been expressed from different sections of your Lordships' House upon it. It probably is not even the final form of the code. None of that arises. I start from the basic assumption that it is the common desire of everyone that it should have what I have loosely called influence.

With that premise I ask your Lordships to look again at Clause 4. This matter was discussed previously on the Committee stage of the Bill, upon the Question, Whether Clause 4 shall stand part of the Bill? I ventured then to raise some questions with regard to its effect in law, and the noble and learned Lord who sits upon the Woolsack explained (we have all accepted this) the objective—an objective, if I may say so, of which I entirely approve—and that it was the desire of the Government that the code should operate on the same lines as the Highway Code under the Road Traffic Act.

The noble and learned Lord in putting forward the view to the Committee that that really is how it would function, said that after all the language of Clause 4 was language which had stood the test of some 40 years. It was the language—if I may paraphrase him, I hope not too incorrectly—which, broadly speaking, was the language which was enshrined in and gave force to the Highway Code. If the contention were sound it would naturally carry weight, as all contentions that come from the Woolsack ought to do. I have thought it right in reconsidering the difficulties I felt when discussing it on a previous occasion, to look at the actual language and to compare it.

I should like to make that comparison before your Lordships this evening. The language is quite different; but far more different, as I ventured to point out when discussing this before, is the content of the code and of the Highway Code. They are not in the least bit the same sort of thing. As I submitted then, and submit with a great deal more confidence now, whereas the simple precepts of the Highway Code are susceptible of that treatment, and as treated in the relevant language in the Road Traffic Act produce an effect which can be evaluated and a legal result which can be ascertained and applied by judges in directing juries and directing themselves on road traffic problems, that really is very far from the case when the same treatment is applied to the code we are at present concerned with.

May I first draw the contrast which I would seek to draw between the language of Clause 4 and the language of Section 45(4) of the Road Traffic Act, 1930. I think I am right in saying that the noble and learned Lord mentioned a period of 40 years, and I apprehend that that was the language which he had in mind.

THE LORD CHANCELLOR

Yes; but I pointed out at the time that the relevant section was not in the Act of 1930, but was Section 74(5) of the Act of 1960.

LORD STOW HILL

That, if I am not mistaken, follows much on the same lines. I was misled by the reference by the noble and learned Lord to language which had stood the test of 40 years. The year 1960 is not 40 years back from to-day.

THE LORD CHANCELLOR

My Lords, if the noble Lord reads in the OFFICIAL REPORT what I said, he will see that what I said was perfectly correct and that I am still correct in saying that the relevant section of the relevant Act is Section 74(5) of the Act of 1960. No doubt there have been intermediate statutes, but broadly speaking the language has followed the same lines. I think that if we are to have a Manuscript Amendment of this length we might at least refer to the right statute in dealing with Clause 4.

LORD STOW HILL

My Lords, that is language which I do not find very acceptable. Unless I am mistaken, the noble and learned Lord referred to a period of 40 years and I thought the burden of his argument and the language that he was seeking to defend was that this had stood the test of time. I repeat that 1960 is not 40 years from to-day. To assess the value of that argument, I propose to read the language which governed the application of the Highway Code.

THE LORD CHANCELLOR

My Lords, I apologise for interrupting again, but it is not good enough to suggest that I was misleading the Committee during the Committee stage. If the noble and learned Lord will look at what I said in Committee, he will see that what I said was perfectly accurate. He summarised it wrongly but that is not my fault.

LORD STOW HILL

My Lords whether I have summarised the noble and learned Lord's argument accurately or otherwise, what I am arguing or seeking to argue at the moment is this: that language which for 40 years has governed the application of the Highway Code is language which is different from the language of Clause 4 and is language which is more appropriate to that purpose than is the language of Clause 4. Whether or not I have correctly repeated the argument of the noble and learned Lord, that particular argument remains unscathed. If I have incorrectly reported the argument of the noble and learned Lord, I offer him my apologies. I have no desire incorrectly to report him, but I certainly gathered that the burden of his argument was that the language was language which had stood the test of time. If I am mistaken, as I said, I unreservedly withdraw that part of my argument and apologise. But it does not detract from the force of the argument, in my submission, which I desire to address to the House namely, that the actual language which over nearly half a century has been applicable in the case of the Highway Code is this language which dates back to 1930.

My Lords, with that preliminary, may I proceed to invite your Lordships to consider the contrast in language? The relevant contrast, I think, is this. Both sets of language provide that a failure to comply with either code shall not of itself result in the person who is in breach of it being liable to proceedings. Clause 4 provides that: A failure on the part of any person to observe any provision of a code of practice…shall not of itself render him liable to any proceedings. In the 1930 Act the corresponding language, which is quite close I agree, is: A failure on the part of any person to observe any provisions of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind. So far so good. But it seems to me when one goes on from that to look at the remainder of the two sets of language one finds that there is a very radical difference.

In the code the relevant language is: any provision of such a code which appears to the Court or tribunal to be relevant to any question arising in the proceedings shall be taken into account by the Court in determining that question. I criticise that language as being very indeterminate. It does not give a judge guidance as to what he is required to do in applying the code.

I contrast that language with the language of the 1930 Act, where one finds: But any such failure may in any proceedings whether civil or criminal and including proceedings for an offence under this Act be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings. That is the contrasting language. The Bill says that it "shall be taken into account" but the 1930 Act says that it can "be relied upon to establish or negative…liability".

VISCOUNT DAVENTRY

My Lords, would the noble and learned Lord allow me to interrupt for one moment'? Is he discussing the code of the Highway Code, the code of Magna Charta, or the present code which was discussed yesterday? This is a new thing we are talking about, is it not?

LORD STOW HILL

No, not at all. What I am discussing is Clause 4 of the Bill. I thought that was perfectly clear, and I think every other Member of this House must realise that plainly, but, for the benefit of the noble Viscount, I will explain it again.

VISCOUNT DAVENTRY

I do not want any more explanation.

LORD STOW HILL

My Lords, in those circumstances, if I may, I will proceed. I am discussing Clause 4 of the Bill. That is the first point I make: that the language of one is indeterminate, and the language of the other is far more precise. But the point which I respectfully submit is far more cogent is the difference in substance between the Highway Code and the code that we are concerned with in this debate. One takes simple examples. The Highway Code is dealing with the most obvious rules of sensible conduct on the road. Before you cross, stop at the kerb, look right, look left, and right again. That is a simple precept, and I should have thought that if one applied the language of the Road Traffic Act 1930 it produces a sensible and obvious result. If you do not look to your right, you get knocked down, and you probably lose the claim that you bring for damages. That is simple enough. But if one turns from that and looks, for example, at the corresponding provision of section A of the code, one finds that it reads: The supervisor is a key member of management and special attention should be given to his appointment and his needs on the job. What on earth is any judge to do when he is asked, in deciding a question under this Industrial Relations Bill, which will then be an Act, to take that into account?

When we were discussing this matter on the Committee stage, I posed a test to the noble and learned Lord the Lord Chancellor. I said: did he feel that the application of the code under Clause 4 could possibly produce a different result, in the case of any issue which could come before any court under the terms of the Bill, from that which would have been produced if the code had not been applied? I took as an example proceedings arising under what was then Clause 94, which I think is now Clause 97. The noble and learned Lord said that he thought it was a bad example, and maybe it was. But I cannot think of any provision the result of which could be influenced by the application of the code, with the possible exception of some cases under Clause 115 which relates to contribution in diminution of a claim for compensation where the complainant has himself contributed to his own downfall. You might have it there, and I should have thought that possibly you might have it in proceedings for failure to disclose information which a company is obliged to disclose to a trade union. But, unfortunately, as we know from our discussions on the code yesterday, we do not know what rules the Government propose to lay down with regard to that.

Our objective, I say with great confidence, being the same on both sides of the House—we really want the code to have effect—my purpose in moving the Amendment is simply to ask the Government, and particularly the noble and learned Lord the Lord Chancellor, who dealt with the matter on the last occasion, and naturally would concern himself with a question of this sort, to reconsider this. I certainly would not seek to ask him to give an answer now, off the cuff, to the arguments that I have been trying to use. I simply ask him to say that, having listened to what I have said, he thinks at any rate there is a problem, and that he will between now and the Third Reading of the Bill reconsider the language of Clause 4.

I am emboldened the more to ask him to do that when I consider, as your Lordships have heard, that a great deal of the argument during to-day has centred upon the question whether language which at present appears in the code should or should not appear in the Bill itself. That is directly relevant, I should have thought, to the importance of making the language of Clause 4 really operative, and having some positive effect, with the result that judges who have to apply it will understand it.

Let me now say a few words on the Manuscript Amendment. As I have said, what influenced me in seeking at this late stage to ask your Lordships' indulgence to place it before the House was that I thought it might be said, against those who feel they would support the Amendment I am proposing, that we were not being helpful if we did not make some suggestions as to the sort of language that we should consider more appropriate. It is in an endeavour to supply that language that Mr. Muir Hunter kindly came to our assistance. I said that I should like to summarise the provisions of his new clause, and I will do that now.

Subsection (1) as in Clause 4, says that the code shall be admissible in evidence. Nothing turns on that. Subsection (2) says that its provisions shall be a prima facie test of the reasonableness of the conduct of any party involved. That, I should have thought, was coming much nearer to the 1930 Act language, and does pose a test which a judge who has to deal with a matter arising under the Bill, when it becomes law, could apply. The next subsection, which is a long one, but which I can, I hope, summarise quite shortly, provides that anybody whose conduct is impugned, or with regard to whom there is a question whether he has committed a contempt of court, can point to the code and say that, because of the provisions of the code, he should be excused or exonerated. That again, I should have thought, in this far more complex situation, is coming nearer to the clear rules which are set out in the 1930 Act. That is not just a new piece of inspiration on the part of Mr. Muir Hunter, because, as he points out, he has relied for that concept upon existing provisions in the Companies Act, Section 448, in its application to the relief for directors who are charged with misfeasance; and it goes back earlier to the Trustee Act 1925.

The next subsection says that the code, in effect, can be prayed in aid where you get a question of contribution: in other words, under Clause 115. That, again, is taken from the Merchant Shipping legislation, and I should have thought was simple and intelligible. Then there is the analogous provision that mere breach of the code shall not involve proceedings; and there is the final subsection that the employer must take steps to bring the code to the notice of those whom he employs.

That, my Lords is the alternative. When I ask your Lordships' permission not to read it to the House, I do so also for this reason: that one of the objects that I had in producing it was, in effect, to place it before the Government Front Bench, so that they should have its actual terms and be able to consider—if they are so good as to say that they would like to look further at the language—whether some language such as that devised by Mr. Muir Hunter does not come nearer to meeting the actual requirements of the situation. Those are the grounds. I feel—and I think that other noble Lords may feel—anxiety whether the existing language in Clause 4 is not far too widely drawn; whether it will not impose upon learned judges far too heavy a burden, and leave them wholly uncertain as to the way in which they are to apply the code and what effect they are to give to it. It is in that anxiety that I ask the Government to consider whether they cannot find some language that will give more precise guidance, possibly on the lines of Mr. Muir Hunter's proposals, or possibly on some other lines. I beg to move.

THE LORD CHANCELLOR

My Lords, of course—and I say this without qualification—I acquit the noble Lord, Lord Stow Hill, of any desire to be discourteous to the House, as I know it is not only contrary to his intention but to his nature to do so. Nor do I wish in what I am about to say any discourtesy to Mr. Muir Hunter, who is a very well known and widely respected member of the legal profession; and when it comes to the Companies Act and the Trustee Act on which he has drawn for his Manuscript Amendment, so the noble Lord, Lord Stow Hill, says, I am sure there is no greater authority. I am not sure that he was wise to draw upon these sources.

We did in fact have a long discussion during Committee stage about the virtues or otherwise of Clause 4. I did not think, with great respect, that although we had very many interesting debates this was one of the better ones. The object of Clause 4 is to put the code in perspective, so that the Act will provide a legal framework. It also provides certain remedies, one of which may be a declaration, another compensation, another an order rather in the nature of an injunction or, in the case of information, it may be another kind of order. All these orders are subject to the discretion of the Court which has to apply the principles of justice and equity before making any order at all.

It was thought appropriate that not merely should the Commission on Industrial Relations and the Secretary of State consider the principles and give effect to some extent to the code, and that the employers and trade unions should obey the moral injunctions of the code, but that in exploring this new field of jurisprudence the Court itself should pay attention to the common sense rules of practice which obtain in the best of industry now but which will, when the code is finally promulgated, be embodied in the code. Obviously, I should remind the House that the code is not yet promulgated. References to the code by the noble Lord, Lord Stow Hill, are references to a draft contained in a Consultative Document which by no means embodies the final terms which will be the subject of this Clause 4 which we are now discussing.

The code was discussed yesterday. The noble Lord, Lord Stow Hill, read one particular phrase from it which excited some sarcasm amongst noble Lords on the Opposition Benches; but I think they should remember that yesterday their supporters were saying how well written the code was and that it was phrased in a language that even a child could understand. I am paraphrasing but quoting almost exactly from one Opposition speaker yesterday. He also said how regrettable it was that the statute was not phrased in similar plain and clear language. I think the noble Lord's suggestion was that the Highway Code (by which he chose the simpler kind of example) was so much clearer in content than the draft code which the House discussed yesterday. I would not think that his quotation was a fair one. I read the first sentence of the code on which my eye falls, which is paragraph 10 on page 8: Trade unions should take all reasonable steps to ensure that their officials, including shop stewards:

1. (a) clearly understand the organisation, policies and rules of the union; "

Surely that is as plain as anything that was ever written in the Highway Code, and it is much more typical an example than the one which the noble Lord happened to select.

But the whole point of the code is that it is written in non-legal language. It cannot be construed as a statute. It is not intended to override the Act, but it is intended to be a guide both to those who wish to ensure for themselves compliance with the best standards at present obtaining in industry. The court and the industrial tribunals will have to consider, in making an order giving effect to people's rights in a dispute, whether or not the conduct of both parties has been in accordance with best practice. For that purpose it seemed apt to take the language of the statute giving effect to the Highway Code and to apply it to the slightly different but exactly analogous situation arising under the Bill. I must say that I think we have done so exactly, but noble Lords shall judge for themselves.

I have no wish in any way to mislead the House. I will simply read the statute. This is, for all that the noble Lord, Lord Stow Hill, said, the Act of 1960. Section 74(5) says A failure on the part of a person to observe a provision of the Highway Code shall not of itself render that person liable to criminal proceedings of any kind, but any such failure may in any proceedings (whether civil or criminal, and including proceedings for an offence under this Act) be relied upon by any party to the proceedings as tending to establish or to negative any liability which is in question in those proceedings. Clause 4 of the Bill which is before your Lordships reads: A failure on the part of any person to observe any provision of a code of practice which is for the time being in force under this Part of this Act shall not of itself render him liable to any proceedings; but in any proceedings before the Industrial Court or an industrial tribunal under this Act—

1. (a) any such code of practice shall be admissible in evidence, and
2. (b) any provision of such a code of practice which appears to the Court or tribunal to be relevant to any question arising in the proceedings shall be taken into account by the Court or tribunal in determining that question."

That seems to be exactly analogous, and in its relevant words exactly and identically the same, because it is to serve the same purpose as the Highway Code.

I am not now arguing about the content of the Highway Code, which is intended to be understood by drivers, pedestrians and other road users. The content of the industrial code is intended to be understood by those who practise industrial relations. Each, in my submission, will be intelligible and will be used for the purposes quite clearly set out in Clause 4 of the Bill—short, clear, lucid and to the point.

The net result of the noble Lord's lucubrations has been to produce a page and a half of foolscap provided by a Chancery lawyer on the basis of Section 448 of the Companies Act and of the Trustee Act, 1925, of which I do not know the section. Whether it is intrinsically a worthwhile exercise is something which I beg leave to doubt. We have something which is short, simple and intelligible, which I have read out, and not something which is long, complicated and technically drafted. It would destroy the value of the code because, as I am advised, having had advice at about 4 o'clock this afternoon from those whose duty it is to advise me on such things, subsection (2) of the Manuscript Amendment, which I fear the House has not seen or heard read purports to set up the code as an arbiter in proceedings and thereby attempts to say that the code's provisions should override those of the Bill. That is the exact opposite of what is intended by Clause 4.

I am also advised that subsection (3) is obscure. As we read it, it will treat the code as if it were a statute. It will try to construe the code, which is in non-legal language, and therefore not susceptible of legal construction. That, again, is the opposite of what it is desired to achieve by this code and by its use in the courts. My impression of this Manuscript Amendment is that it is in fact vulnerable to both those criticisms.

But let us consider where we are going in these matters. From the beginning the whole burden of the complaint of the Opposition has been that they do not like legal language; that they do not want precise legal definitions; that they hate legal frameworks; that they want the fine, simple, sinewy language which is understood by men, women and children all over the country; the language of Shakespeare, the Authorised Version, the Highway Code and the industrial code. But now we are to have a tortuous piece of legal draftsmanship brought into effect by a Chancery lawyer on the analogy of the Trustee Act and Companies Act, Section 448. This is not the idea at all. How the Opposition can want this after all they have said, and after all we have had to listen to, I find very difficult to understand. There are a great number of other things that I should like to say about the Manuscript Amendment. Subsection (6), for instance, to which reference has not been made, obliges employers to provide free copies of the code. That is a question of policy and not one for Mr. Muir Hunter. The fact of the matter is that what we have drafted is good; what is proposed, but cannot be read because it is too long and has arrived too late to your Lordships' House, is bad.

8.42 p.m.

On Question, Whether the said Manuscript Amendment (No. 12F) shall be agreed to?

THE LORD CHANCELLOR

My Lord, the Question is, That the Manuscript Amendment in the names of the noble Lord. Lord Diamond, and the noble Lord, Lord Stow Hill, be agreed to. As the House is somewhat fuller than it was when I said I would have to seek its direction, I must remind the House of the Orders of the Procedure Committee. Manuscript amendments are not out of order on Report, but the disadvantages and inconvenience referred to in the note on the moving of manuscript amendments in Committee are even greater on Report than at the Committee stage. The Committee further recommend that when a manuscript amendment is moved, the text of the manuscript amendment should, unless the House otherwise directs, be read out to the House, not only by the Mover, but also by the Lord in the Chair (or on the Woolsack) in putting the Question to the House and that this should be included in the revised Companion. My Lords, I feel bound, in the light of that direction, to read out the Amendment to the House. It is as follows:

' After Clause 3, insert the following new clause: .—(1) In any proceedings before the Industrial Court or an industrial tribunal under this Act, any code of practice which is for the time being in force under this Act (in this section called "the code") shall be admissible in evidence. (2) The provisions of the code shall constitute a prima facie test of the reasonableness or unreasonableness of the conduct of any party to those proceedings or of his representative or agent. (3) Any party to those proceedings may by way of answer to any complaint made in respect of his own conduct or the conduct of his representative or agent which is contended to constitute or to have constituted an unfair industrial practice or to amount or to have amounted to a contempt of the Court or the tribunal may contend that having regard to all the circumstances including his or their compliance or attempted or intended compliance with any provision of the code, he ought fairly to be excused or exonerated, and if it so appears to the Court or the tribunal, it may relieve him wholly or in part from any liability in respect of his said conduct. (4) In so far as it is necessary for the Court or the tribunal in those proceedings to apportion between the several parties to the proceedings their several degrees of responsibility (if any) for the incident, matter or dispute giving rise to the proceedings, it shall for the purposes of making such apportionment take into consideration the extent of the compliance by each party or his representative or agent with any relevant provision of the code.

Resolved in the negative, and Manuscript Amendment disagreed to accordingly.

(5) A failure on the part of any person or of his representative or agent to observe any provision of the code shall not of itself expose him to any proceedings under this Act or render him liable therein.

(6) In any proceedings under this Act the Court or the tribunal shall so far as relevant take into consideration the extent to which (if at all) any party to the proceedings who is an employer has effectively brought to the notice of all or any of his employees the provisions of the code and of any revision thereof, and without prejudice to the foregoing it shall be the duty of every employer to whom this Act applies to supply to each of his employees on demand one copy of the code and of any revision thereof.")'

My Lords, that is the Manuscript Amendment.

Their Lordships divided: Contents, 32; Not-Contents, 86.

CONTENTS
Airedale, L.	Henderson, L.	Plummer, Bs.
Archibald, L.	Heycock, L.	Raglan, L.
Blyton, L.	Hilton of Upton, L. [Teller.]	Shepherd, L.
Brockway, L.	Hoy, L.	Slater, L.
Buckinghamshire, E.	Jacques, L.	Stonham, L.
Burntwood, L.	Janner, L.	Stow Hill, L.
Champion, L.	Lindgren, L.	Strabolgi, L. [Teller.]
Davies of Leek, L.	Llewelyn-Davies of Hastoe, Bs.	Taylor of Mansfield, L.
Diamond, L.	Maelor, L.	White, Bs.
Gaitskell, Bs.	Nunburnholme, L.	Wright of Ashton under Lyne, L.
Gardiner, L.	Phillips, Bs.

NOT-CONTENTS
Aberdare, L.	Cromartie, L.	Mowbray and Stourton, L.
Ailwyn, L.	Daventry, V.	Northchurch, Bs.
Amory, V.	Davidson, V.	Oakshott, L.
Auckland, L.	Denham, L.	O'Neill of the Maine, L.
Balerno, L.	Digby, L.	Rankeillour, L.
Balfour, E.	Drumalbyn, L.	Rochdale, V.
Balfour of Inchrye, L.	Ellenborough, L.	Ruthven of Freeland, Ly.
Beauchamp, E.	Falkland, V.	St. Aldwyn, E.
Belhaven and Stenton, L.	Ferrers, E. [Teller.]	St. Just, L.
Belstead, L.	Ferrier, L.	St. Oswald, L.
Berkeley, Bs.	Fortescue, E.	Sandys, L.
Blackburn, Bp.	Gage, V.	Seear, Bs.
Bolton, L.	Goschen, V. [Teller.]	Selkirk, E.
Boston, L.	Gridley, L.	Sempill, Ly.
Brabazon of Tara, L.	Grimston of Westbury, L.	Shaftesbury, E.
Bradford, E.	Hacking, L.	Sinclair of Cleeve, L.
Brooke of Cumnor, L.	Hailsham of St. Marylebone, L. (L. Chancellor.)	Skelmersdale, L.
Brooke of Ystradfellte, Bs.		Somers, L.
Brougham and Vaux, L.	Hatherton, L.	Strathcarron, L.
Byers, L.	Henley, L.	Strathclyde, L.
Clifford of Chudleigh, L.	Hood, V.	Teviot, L.
Clwyd, L.	Ilford, L.	Thorneycroft, L.
Colwyn, L.	Inglewood, L.	Thurso, V.
Colyton, L.	Kemsley, V.	Tweedsmuir of Belhelvie, Bs.
Conesford, L.	Kilmany, L.	Vivian, L.
Craigavon, V.	Latymer, L.	Wade, L.
Craigmyle, L.	Massereene and Ferrard, V.	Wakefield of Kendal, L.
Crathorne, L.	Mills, V.	Ward of Witley, V.
Crawshaw, L.	Monck, V.	Windlesham, L.

Clause 5 [Rights of workers in respect of trade union membership and activities]:

8.52 p.m.

LORD STOW HILL moved Amendment No. 12E: Page 4, line 7, at end insert— (" ( ) Participation upon a scale which is in all the circumstances reasonable at any appropriate time in the work of and as a member of any public body or bodies to serve on which a member of a trade union is appointed by reason of or mainly or substantially by reason of his membership of that trade union shall for the purposes of paragraph (c) of the preceding subsection be deemed part of the activities of the trade union.")

The noble Lord said: My Lords, as my noble friend Lord Delacourt-Smith is not present at the moment, and as my name appears upon the Amendment, perhaps I may move it in his stead. The Amendment seeks to enlarge by definition what are described as the activities of a trade union within the meaning of Clause 5(1)(c). It deals with a short point on which representations, I understand, have been made, and it is this. I do not think it really involves any point of principle or that it should evoke any large scale opposition as between both sides of your Lordships' House.

The representations are to this effect: that in practice in a very large number of cases if one looks to see what actually happens on public bodies of various sorts, persons are invited to serve and to work precisely because they are trade unionists or belong to a particular trade union. They are so invited, say, by trades councils and so on or by the bodies themselves, because of their experience. When, for example, those bodies have power under their terms of constitution to co-opt outside members, it is thought that it would be useful to have the advice and help of somebody who had full knowledge of industrial relations, labour conditions, and so on in a particular plant in which a large number of the citizens of a particular provincial town may be employed. So often is that the case that it is represented that it would be desirable and in the public interest that under the provisions of paragraph (c) a worker should be entitled to take part in other activities of the union and also to do that sort of work.

My Lords, the argument behind the recommendation that there should be such an enlargement made in the definition is that it is after all in the general public interest that trade unionists should give the benefit of their experience and specialised knowledge in the public service, and that that does conduce to the public good. In those circumstances, if I may invite your Lordships' attention to the actual terms of the proposed Amendment, you will see that the participation is to take place at an appropriate time, and the expression "appropriate time" is defined in subsection (4) of the clause in a limited sense. I will not go into the definition. It is not "at any time", but at certain limited times agreed between the employer and the worker.

The work is to be as a member of a public body or bodies—no private institution or anything of that sort. It must be some sub-committee of the local authority or something of the sort where there is public service done and where particular private interests are not catered for. The service upon that body must be, if I may quote the language of the Amendment, substantially by reason of the membership of the worker of the particular union. My Lords, I quite agree that one must have some regard to the respective positions of workers and management and that one cannot open the door too wide, but I would respectfully submit to the House that the Amendment is so formulated as to draw a reasonably tight circle around what is to be regarded as an activity of the union in which the worker is to be entitled to participate. I do not know whether your Lordships would criticise the Amendment on the grounds that it goes unreasonably wide. I would submit that it does not. It is to bring within the scope of the activities of the trade union just that, and no more than that, which is in the public interest. It is a point which in a sense is small, but I suppose that over the years it might affect a large number of people and produce a substantial result in furthering the activities of public bodies of that sort. Those are the reasons behind the Amendment, and I hope that your Lordships will find it acceptable. I beg to move.

LORD TAYLOR OF GRYFE

My Lords, I wonder whether the noble Lord would clarify what is meant by "appointed to public bodies". Does that involve elected public bodies to which a trade unionist may be elected, such as a city council, or is this exclusively referring to bodies to which he is appointed specifically as a trade unionist?

LORD STOW HILL

My Lords, I think I must ask the permission of the House to speak again, as I had sat down. If the House will allow me to answer the question, I should be pleased to do so, The word "appointed" is chosen in order to cover both the case where a trade unionist is elected to a public body of some sort and also—and I should have thought that this was probably the more frequent—where you find a public body which has power to co-opt outside persons who, in the view of those who are already members, may be able by reason of his specialised knowledge to assist them in the work they have to undertake. Therefore, the answer I would give is that the word "appointed" is designed, whether appropriately or not, to cover both.

LORD WINDLESHAM

My Lords, I should like to say at once that the Government are sympathetic towards the object of this Amendment although, as I shall explain, we have some reservations as to whether it would in practice achieve what its movers hope. As I understand the noble Lord, Lord Stow Hill, the intention is to safeguard the position of union members and union officials who play an active part in various public bodies such as hospital management committees, local employment committees as well as the industrial tribunals, which will have a very important part under this Bill, and where they are appointed to serve on these various bodies in a representative or an individual capacity as trade unionists. It may be that the phrase trade union activities, which occurs in Clause 5(1)(c), is not wide enough as it stands, is not broad enough, to cover participation in work of this kind, and hence the reason for the Amendment.

The wording of the Amendment is very reasonably set out. It accepts that a union member should not have any absolute right to absent himself from work without his employers' permission to engage in activities of these public bodies; and the wording of the Amendment also accepts that service on these bodies must be mainly as a result of a person's trade union position. I should like to assure the noble Lord that the Government are not at odds with him at all on the purpose of this Amendment, but, as I said, there are some difficulties in practice. These come under two headings. The first is concerned with drafting; and the second, the representative capacity in which the trade unionist would be serving. I am not clear what purpose is served by the phrase: Participation upon a scale which is in all the circumstances reasonable ". It may he that the words are not really necessary at all, and indeed it may provide grounds on which an awkward employer could argue that, because a trade unionist was particularly zealous, unusually zealous—perhaps in his capacity as a member of a hospital management committee—outside his working hours, he was therefore in some way failing in his duty as an employee. There is also some doubt in our minds about what exactly is a public body. The noble Lord, Lord Taylor of Gryfe, has just touched on this. I think we must assume that Party political activities as such would not be covered by the expression "public body"; yet, on the other hand, political Parties are not exactly private organisations. So there is an area of some doubt and some ambiguity here.

The second point in our minds is that we must take care not to lay on industrial tribunals the burden of judging whether or not a particular public appointment was or was not, in the words of the Amendment, by reason of or mainly or substantially by reason of his membership of that trade union ". Most appointments to public bodies in practice, as we know, are not made because a person belongs to a union, and certainly not to a particular union, but after consultation with the T.U.C. in order that he can represent the viewpoint of employees generally. This is the practice at present with the industrial tribunals. A list of names is provided by the T.U.C.; the Minister has an obligation to consult organisations representative of employees, and he then makes the appointments, not as representatives of a particular union, or even unions collectively, but to represent the standpoint of employees generally. And very often the appointment of a trade unionist to a body of this kind is because of his. personal qualities as much as his actual position in a particular trade union, if a tribunal is then asked to decide in a disputed case—probably very rare indeed—on what ground a particular appointment was made, it would then be in great difficulty, because it could not really know what had been in the mind of the Minister or whoever else it was who made the appointment.

My Lords, I hope I have shown in what I have said that the Government sympathise with this very reasonably moved Amendment and, if I might say so, this very reasonably phrased Amendment; but, as I think I have shown, it would in practice raise more problems than it would solve and would put an additional burden on tribunals which seems difficult to justify. In all the circumstances the Government have come to the conclusion that as a matter of practical judgment this is a matter that would he more appropriately covered in the code of practice than in legislation. As my noble and learned friend said on the last Amendment, the document before us is headed, "Consultative Document". It is in no way in its final, unalterable form yet; and if the noble Lord is, in the light of what I have said, willing to withdraw his Amendment, I will give an assurance that we will consider very carefully the possibility of including a form of words dealing with this matter in the final draft of the code of practice when it is presented to Parliament.

9.5 p.m.

BARONESS WHITE

My Lords, we should perhaps press the noble Lord just a little further, because all he said was that they would consider; he has given us no guarantee on this. My noble friend indeed moved this Amendment in the most reasonable terms and, as I am quite sure your Lordships will appreciate, this particular Amendment has been very carefully drawn in the light of our discussion at an earlier stage on an Amendment which was rather widely drawn, and to which consequently the noble and learned Lord on the Woolsack made objection; and one could quite see the force of some of the comments he made at that stage. But this is something which those of us who have had some experience in these matters are deeply concerned about, partly because the practice of employers varies so enormously. It is by no means uniform. I know, from my twenty years' experience as a constituency Member, how certain employers are very generous indeed in making arrangements for their employees to play a full part in public activity of one kind or another, because they have recognised it was good for the community that they should be good citizens and have opportunities for taking part; and in other respects, of course, the activities were more directly concerned with their position as experienced trade unionists in industry. One would find even among the publicly owned industries extraordinary variations in the degree to which employers were prepared to grant leave of absence and so on.

Originally, in the earlier stage, our Amendment was rather widely drawn—the noble and learned Lord on the Woolsack mentioned his search for magistrates, which is germane. But we felt, for the reasons which he himself adumbrated at the time, that it was wisest in the context of this Bill to confine our requirements to appointments which had some connection with trade union membership. There is of course a whole gamut of possible activities, some purely private; if a man is interested in cats or canaries, then he should deal with that in his spare time. This is directly concerned with the kind of public service which would not help the noble and learned Lord on the Woolsack in his search for justices of the peace. That might be done by some other means: but we should get some sort of uniformity of practice among employers in regard to public service which was connected with the industrial experience of the people concerned. I do not know what my noble friend wishes to do on this Amendment—whether he is satisfied with the assurances given by the Minister—but I should not have thought that the Minister need hesitate about giving us some sort of guarantee. Consideration is easy, but I think this matter is important enough to ask that some form of words should be put into the code. The code is not legally binding and therefore he need not worry himself so much about definition as he might if it were included in the Statute.

LORD TAYLOR OF GRYFE

My Lords, I welcome the assurances given by my noble friend, but I feel it is important that in drafting this provision we should seek uniformity in its application. The Amendment does not say this exactly. It says that provision will be made where a man is elected by reason of, or mainly because of, his membership of a trade union. This could in fact lead to discrimination between one employee and another. If we are seeking uniformity in practice, that is a good thing. I recall my own experience of being an elected representative of a public body. In my case my employer said "No ", because I subscribed to a particular political Party. On the other hand, if I deserted that particular political Party I could be released for public work. It so happened that I was a member of the Independent Labour Party, and my employer said, "You can get off if you are a member of the Labour Party". So there was a degree of discrimination in that case. It would be difficult to interpret when a man is appointed mainly or substantially by reason of his membership of a trade union. This might lead to discrimination between one employee who was regarded as having been elected because of his trade union affiliation, and another employee who was elected by the public but perhaps did not have such a strict trade union membership. So I welcome the intention behind the Amendment. But if it is to be incorporated in the code, I would seek that it should be applicable in a non-discriminatory way, thereby helping the tribunal and whoever is going to judge these matters.

THE EARL OF BALFOUR

My Lords, although I must admit that I really do not understand the wording of this Amendment I am wondering whether there is not a form of words which would cover this point in the terms and conditions of a person's being employed in respect of the Representation of the People Acts—people being county councillors. I think they are covered when they cannot be at their work. I cannot quote the precise legislation, but this might possibly be a guide.

LORD STOW HILL

My Lords, I think it is in accordance with your Lordships' practice that the mover can speak again without asking the permission of the House. I am most grateful to the noble Lord, Lord Belstead, for what he has said.

SEVERAL NOBLE LORDS

Lord Windlesham.

LORD STOW HILL

My Lords, I am so sorry. I apologise to both noble Lords. I am most grateful to the noble Lord, Lord Windlesham, for what he has said, because it has pointed to obvious difficulties about drafting a provision of this sort. He has drawn attention to some ambiguities, and noble Lords who spoke after him have called attention to other difficulties which must be dealt with. Membership of a county council or of a local authority generally raises difficulties. Those are elected members and, broadly speaking, I suppose they are divided on political lines. Whether they should be within the scope of the bodies which should be covered by the Amendment requires thought. What I would say to the noble Lord, Lord Windlesham, is this: I hope that when he gives further consideration to this matter he will think it better to incorporate it in the Bill itself. I say that because it is a question of right it is not a question of discretion. What is sought to be done by this Amendment is to confer the right upon a worker who participates, and I should have thought that when you are talking about rights as something that a worker can insist upon and which, if he is not afforded them, give him the right to claim compensation, the proper place for those rights to be enshrined and described is in the text of the Bill itself and not in the code of conduct. Having said that, and expressing my gratitude again to the noble Lord and my apology for misnaming him—it is a sign of old age, I think—I would ask the leave of the House to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.15 p.m.

BARONESS WHITE moved Amendment No. 12A: Page 4, line 11, leave out (" subsection (1) of this section ") and insert (" sub-paragraphs (a) and (c) of subsection (1) of this section ").

The noble Baroness said: My Lords, the effect of this Amendment is to indicate that, in our view at least, there is a very substantial difference between paragraphs (a) and (c), on the one hand, of subsection (1) of this clause, and paragraph (b) on the other. We would, of course, entirely agree that the part of the clause which we are discussing here which refers to paragraphs (a) and (c) is entirely acceptable. These paragraphs provide for the right, on the one hand, to be a member of such trade union as may be chosen, and, on the other, to take part in the activities of the chosen union in the way described in paragraph (c). As we have made clear on a number of occasions, our attitude to Clause 5(1)(b) is quite different. This is the right to be a member of no trade union. In our view, this is a difference of such an order of magnitude that it ought not to be regarded as the same.

If one should seek to deter a worker from exercising his right to be a member of a trade union or to take part in its activities, that is something which we should certainly regard as most undesirable. On the other hand, as it is the Government's avowed object, as well as our own, that there should be strong trade union organisation, we do not feel that it should be regarded as an unfair industrial practice for an employer or some person acting on his behalf to endeavour to deter a worker from not being a member of a trade union or from being a member of no union, whichever way you put it. Certainly in our view, and I should have thought in the view of the Government, so to do, to try to deter someone from not taking his full part in a workers' organisation, is not, surely, an unfair industrial practice, but a very wise industrial practice.

We certainly feel that a sensible employer should recognise the value of trade union membership. He should not, in the philosophy of the Government and of this Bill, use force majeure to prevent a member from exercising his right; but to deter, after all, is not quite the same thing. On could argue that one could seek various ways of persuasion or of endeavouring to convince a worker that it would be in his interest, and in the employer's interest and the general interest, that he should join a trade union. This presumably could be interpreted as endeavouring to deter him from exercising his right under subsection (1)(b).

We think this clause should be looked at a little more closely. Certainly in our view, these paragraphs which are included in subsection (2) are not on all fours; they are not, in our view, of equal validity. We would have supposed that an intelligent employer would accept that to deter a man from exercising a right under paragraph (a) or paragraph (c) would be deterimental, but to endeavour to deter him from exercising his right under paragraph (b) may well be in the general interest. And this would not only be under a closed shop or an agency shop, but in general terms. Otherwise, there would not be an adequate organisation with which the employer could negotiate at all. I would ask the Government to look seriously at this suggestion, and not necessarily put on all fours in the Bill the obligations under paragraphs (a), (b) and (c), but to recognise that the provision embodied in paragraph (b) is something rather different.

THE EARL OF BALFOUR

My Lords, I wonder whether I may point out one matter before we go any further on this Amendment; that is, that it will affect Clause 33(3)(a) on page 26 referring in line 25 to Clause 5(2). I do not think that it would improve the position of a worker, strengthen a trade union, or make industrial relations any more pleasant if this Amendment were accepted.

LORD WINDLESHAM

My Lords, perhaps I could preface my reply on this Amendment by saying to the noble Baroness opposite that the reason why I did not answer her questions on the last Amendment was that we were on Report and it was not open to me, not being the Mover of the Motion, to speak a second time.

BARONESS WHITE

My Lords, I trust the noble Lord took the message all the same.

LORD WINDLESHAM

My Lords, indeed I took the message and noted the interesting points that were made by the noble Lord, Lord Taylor of Gryfe, and the noble Baroness. They were not by any means the same point, which shows how necessary it is to look at this matter rather carefully. Whether intentially or not, this Amendment is a very far-reaching one. I can say to the noble Baroness straight away that the purpose of what she is seeking to achieve in the speech she has just made is really contained in subsection (3) of this particular clause. Clause 5 contains three specific rights in subsection (1): the right to be a member of a trade union; secondly, the right to take part in the activities of the trade union; and thirdly the right, if he so desires, of a worker to be a member of no trade union. These are very specific rights. These are not just general declarations; they are legal rights to which specific remedies are attached in subsection (2). These are not general liberties; these are actual rights, with remedies provided in the next subsection.

As the noble Baroness pointed out, it is subsection (1)(b) of this clause that confers on a worker, as between himself and his employer, the right not to belong to a trade union or other organisation of workers. That right is guaranteed by the provisions of subsection (2), which make it an unfair industrial practice to prevent or deter a worker from exercising that right, or to dismiss, penalise or otherwise discriminate against him for so doing. This Amendment, while not seeking to alter subsection (1)—it would leave the right not to belong in subsection (1)—would have the effect of making it unenforceable, because it would take out the remedy which is attached to it at present in the later part of the clause. As a consequence, post-entry closed shops could continue in operation, because the Bill nowhere explicitly prohibits post-entry closed shops. They are ruled out in practice by the provisions of Clause 5(2) so long as these provisions make it an unfair industrial practice to prevent a worker from exercising his right not to belong, thus giving him the remedy for infringement of his rights. The Government are firmly committed to the view that workers must have this right to exercise free choice on union membership. It is a necessary safeguard for the individual in situations dominated by the trade union and by the employers, both of whom inevitably will tend to put their collective interests before those of the individual.

In those situations where circumstances demand it, the Government have accepted, as noble Lords know, that certain closed shop agreements may be approved. We shall probably be going on to debate this later to-night or tomorrow. But, over industry as a whole, we are confident that it is the agency shop agreements which will provide the necessary degree of security and stability for trade unions, without the need to compel employees into union membership. We might also recall the fact that a union which obtains a very high degree of membership in a particular plant—say, 95 per cent. or more—will be in a stronger position than a trade union with 100 per cent. membership, of which the last 5 per cent. or a very small number of people may have been forced into the union against their will. Under the agency shop agreement, the worker will be able to exercise a right not to belong to a union, provided he agrees to pay the appropriate contribution in lieu. This Amendment would therefore result not only in taking away one of the remedies provided in subsection (2), thereby permitting the continuance of the post-entry closed shop arrangements as they operate to-day, but in undermining the agency shop provisions at the same time.

There are many thoughtful people, who are in general well disposed towards the trade union movement, who believe that one of the features of the current situation which give rise to most disquiet is the fact that a man's livelihood can depend on union membership. I gave some examples when we debated this part of the Bill in Committee. It is quite easy to appreciate how this situation has come about, and that there may be advantages for the employer as well as for the union to continue with closed shop arrangements. But at a time when the nettle of trade union reform has been grasped at last, it surely would not really be right or desirable to allow this disturbing feature of modern industrial society to continue. That would be the effect of the Amendment on the Marshalled List before your Lordships, and that is the reason why I must ask you to reject it.

9.27 p.m.

BARONESS WHITE

My Lords, as I moved the Amendment I believe that I have a right of reply. May I draw the attention of the noble Lord to Standing Order No. 29, which has been drawn to my attention by my noble friend, which indicates that if a noble Lord who is a Minister of the Crown wishes to ask for the leave of the House to speak again he is entitled so to do. Therefore, while I am quite sure that it was in entire good faith that the noble Lord did not reply to the points I put, we should be most happy to grant him leave to reply to any of our questions.

LORD WINDLESHAM

Yes, my Lords. But it is also one of the understandings that we have to exercise a little self-restraint and do not turn the Report stage of a Bill into a second Committee stage.

BARONESS WHITE

We entirely accept that, my Lords. But I did not want it to be accepted that the noble Lord could not ask leave in order to reply, because there may be some questions which we feel very much need a reply. I have listened with great attention to what the noble Lord has said about this Amendment, and I can perfectly well appreciate the reasons why the Government do not feel disposed to accept it. After all, this has been one of the main threads of our argument during the discussions on this Bill. But I do not want to discuss the matter further, because I do not think that we should persuade one another either way. We still think that our attitude is justified. The noble Lord was perfectly correct in drawing our attention to the provisions of subsection (3), which meet some of the points which I put forward. All would say is that, in our view, they do not go far enough. Also, as the noble Lord knows very well, we do not think that the provisions in regard to the agency shop or the closed shop, as envisaged by the Government, are adequate. But I do not wish to detain your Lordships any longer and, in all the circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

9.30 p.m.

LORD STOW HILL moved Amendment No. 12B: Page 4, line 2S, after (" section ") insert (", nor for the purposes of subsections (2)(b) of this section shall an employer or a person acting on behalf of an employer be regarded as discriminating against a worker,")

The noble Lord said: My Lords, I beg to move Amendment No. 12B, which really goes with the next Amendment and is meaningless without it. I hope your Lordships will allow me, therefore, when moving Amendment No. 12B, also to refer to Amendment No. 12C, which explains the object of the first Amendment. The purpose of the two Amendments really is to remove a doubt as to what is meant by "discrimination" as it is used in paragraph (b) of subsection (2) of this clause. Its object really is very similar to that of the next Amendment, No. 13, which will in due course, I imagine, be moved from the Government Front Bench. The difficulty arises in this way. Paragraph (b) of subsection (2) provides that it is an unfair industrial practice to discriminate against a worker by reason of his exercising any right which is set out in subsection (1). As the House knows, that right includes the right, specified in paragraph (b), to belong to no trade union. Therefore, the question is whether, in the circumstances described in the second Amendment which I desire in due course to move, it could be held against an employer that he is discriminating against a workman who exercises his right not to join a union.

Those circumstances are these. What the second Amendment does is to provide that it shall not be an unfair discrimination for an employer to withhold from workers who are not members of a trade union advantages or facilities which he accords to workers who are members of a trade union. The sort of situation which those who feel that this Amendment ought to be made have in mind is the following. Take a procedure agreement. A procedure agreement, as defined in the Bill, is an agreement which, among other things, deals with the righting of grievances which individual workers may feel they are under with regard to their employers. Procedure agreements differ greatly in form in so far as they apply to grievances, but a common feature of them, and I should have thought a feature present in practically all of them in one form or another, is that if a worker has a Grievance against his employers he is, in effect, if I may summarise, helped by his union in presenting that grievance and in trying to get it remedied. Interviews are arranged, a trade union representative will appear with him, there may be a right of appeal, and so on. Those rights cannot, in the nature of things, be exercised by the worker with the assistance of his union unless the employer co-operates—and, of course, the employer always does co-operate. If the grievance is presented and the trade union assists the worker who is a member of that union to present it, the employer, in accordance with the terms of the procedure agreements, affords all the facilities necessary for the presentation and disposal of the case upon which the grievance hinges.

Now the anxiety which is entertained is this. Supposing an employer complies in every sense with a procedure agreement which he has entered into with a union, in that he affords members of that union all the facilities for which the procedure agreement provides for them to air and have adjudicated upon any grievance they feel they are under vis-à-vis that employer, could it be said against the employer that he is discriminating against workers who are not members of the union if he does not provide equal facilities for them? A worker who is not a member of that union would clearly have no rights under the procedure agreement to that representation for which the procedure agreement provides in the case of members of the union. If an employer says to a worker who is a member of a union. "You may exercise your rights. We will afford you all the facilities. We recognise that you have a right to be heard", and so on, and says to a worker who is not a member of a union, "We are not obliged to provide any of those facilities to you", could it be said that he is discriminating against the worker who is not a member of a union? That is the point.

I should have submitted to the House that there is a doubt upon the wording of the existing paragraph (b) of subsection (2) as to whether in a situation of that sort always, or at any rate sometimes, it might not be said against the employer that he discriminates against a non-member worker if he withholds facilities for the adjudication of a grievance which he affords under a procedure agreement to a member worker. Could that or could that not amount to discrimination? I submit that it is open to argument; that an industrial tribunal in one case might say "Yes"; and that another, on a similar matter, might say the contrary.

I submit that it is desirable that the matter should be placed beyond doubt for the following among other reasons. If there is doubt about it and if employers do not know exactly where they stand, it may be that in the course of time they will as a matter of course afford the same rights to all workers whether or not they are members of a union. They will, in fact, treat them all on the same footing, and the worker who is a member of a union will find that he derives no advantages whatever from membership. It is the common purpose on both sides of the House to promote orderly industrial relationships. Your Lordships know how anxious are Members on this side of the House to make possible closed shop agreements on a larger and easier footing than the Bill provides. This is designed for the same objective. Noble Lords opposite do not feel able to accept that point of view; but they accept, and have constantly advanced the point of view, that the major purpose of the Bill, whether it achieves it or not, is to try to promote orderly industrial relationships. If you get a situation in which no distinction is drawn between union member workers and non-member workers, it really is making towards disorder. One may get a worker member saying that he would sooner take procedures into his own hands, and will not bother to consult with his trade union representative. All sorts of undesirable practices may develop.

My Lords, when I ask the Government to indicate that they are prepared to accept this Amendment, subject to the approval of the House, I am asking that they should put the matter beyond doubt; that they should enact in this Bill that an employer shall not be regarded as discriminating simply because he affords to a member-worker advantages and facilities pursuant to a procedure agreement—or there might be other agreements—between the employer and the trade union, which he does not afford to workers who are non-member workers. That is the simple point. I hope that your Lordships will feel that at any rate the promoters of this Amendment have uncovered an uncertainty as to the precise effect of subsection (2)(b). If your Lordships go so far with my argument, then I feel sure that you will agree that it is desirable that this doubt should be set at rest by using the words such as I respectfully propose, or other suitable words, to remove all possible doubt whether in those circumstances discrimination could be proved against an employer.

9.40 p.m.

LORD WINDLESHAM

My Lords, these two Amendments which, as the noble Lord, Lord Stow Hill, has helpfully explained, do hang together, would enable an employer, where there is an agreement with a union, to discriminate in favour of the union members by offering them, in the words of the Amendment, "advantages or other facilities" which are not afforded to non-members. The noble Lord referred to the Government Amendment, No. 13, on the subject of inducements. We shall be debating that shortly, but I must say to him that the effect of Amendment No. 13 is really the reverse of the effect of these Amendments. It rules out any inducement being given by an employer; but that is something we may discuss when we get to that Amendment.

The Amendments before us would enable employers to discriminate in favour of an unregistered organisation of workers—and not only a trade union—which would not, as the Bill is drafted, enjoy any of the rights set out in Clause 5, which refers to workers having the right to join or not to join a trade union. The words "trade union" have the special meaning given to them later in the Bill. The noble Lord has advanced an interesting case of where there is a procedure agreement and the employer does correctly what is expected of him. He makes facilities available for the resolution of a dispute, and probably, in order to ease industrial relations, also has made facilities available for the shop steward, in the shape of accommodation or access to telephones, for example. Noble Lords, when debating the Code yesterday, may have noticed that on page 23, in Section E, 12, there is a reference specifically to this, which is a point of considerable importance: Management should provide other facilities, such as accommodation and equipment for interviews and office work and access to a telephone according to individual circumstances. My Lords, we do not believe that this question of discrimination could arise in the terms envisaged in the code—the question of facilities—and the circumstances postulated by the noble Lord, Lord Stow Hill. What is offered to shop stewards or the other representatives of a union in pursuance of the agreed procedures are facilities to do the job of representing the union members in negotiations with the management. So someone who is not a shop steward or a representative of a union would not require those facilities to do the job, because he would not have the job to do. Therefore the question of facilities, in our view, would not arise.

The other objection—I think a serious one—to the wording of the Amendment is that it goes very wide. I think that probably this is quite unintentional, but the effect of the words referring to advantages as well as to facilities would be to allow advantages to be extended to union members by an employer and denied to non-union members. Therefore, should he wish to do so, an employer could lean very heavily on workers in an attempt to influence them in the way in which they exercised their rights. The words, "advantages or other facilities" which appear in the Amendment could, I am advised, include financial advantages, such as bonuses, paid holidays or subsidised meals; or non-financial advantages of substantial benefit to workers, such as recreational facilities, choice of holiday dates and so on. What I would like to say to the noble Lord is that I think we ought to study what he has said about procedure agreements in greater detail. The noble Lord has made a carefully argued case. I am certain, in the light of the advice that I have had, that the straightforward facility is really covered. We do not want any question of discrimination there. On the question of procedural points, the difficulty is that there we are moving into an area of potential doubt and I should like to have a look at this again.

LORD STOW HILL

My Lords, I am grateful to the noble Lord for his answer. I accept at once, when he points to the words "advantages and other facilities", that he raises a difficulty on my drafting. Those words are probably too wide. The difficulty inherent in the situation is that almost any agreement entered into between management and the union in one way or another does advantage members of the union. It is difficult in those circumstances to choose other language. I infer from what the noble Lord has said that the Government do not wish management never to be in a position to enter into an agreement with a union which puts the members of the union in a more favourable position than those who are not members. They see that as the broad general purpose. But the noble Lord has kindly said that he recognises that there is a problem and would like to consider it. If that is the view of the Government, speaking for myself—I see that my noble friend wishes to speak, and I will not say what your Lordships may have guessed I was going to say.

LORD DELACOURT-SMITH

My Lords, I feel that I must press this matter a little further, because I feel considerable disquiet at some of the noble Lord's remarks. It seemed to me that he was concentrating unduly on the question of facilities in the context of facilities offered to representatives of workers. I understood from my noble friend's speech that this was not the type of facility he had in mind. He had primarily in mind facilities enjoyed by an ordinary worker, not a representative, to have his case pursued through a procedure agreed between employer and the union. I am extremely disturbed at any suggestion that an employer might deny those facilities to a worker covered by a trade union agreement on the grounds that they must be extended to all other workers who are not trade unionists and that to deny them to other workers who are not trade unionists would be discrimination. This would raise very serious issues and would be contrary to what I understood on a similar though not idential point which I myself raised on this clause on Committee stage.

I appreciate the tone in which the noble Lord replied to my noble friend, but when he speaks of the Government examining this matter, I for one am not clear what is to result, if on examination the Government accept that there is sub, stance in the point my noble friend has raised. Do they envisage at some even later stage in this Bill bringing forward an Amendment to cover this point?

LORD WINDLESHAM

Perhaps this is an occasion when I should ask for the leave of the House to speak a second time, which is a thing I must be careful not to make a habit of, since we are on Report. We are agreed that the Amendment before us would not do what the noble and learned Lord, Lord Stow Hill, seeks to do. It would be open to abuse and would not improve the Bill. What the noble Lord, Lord Delacourt-Smith, said about the word "facility" shows the different way in which words can be interpreted. When the word "facility" appeared on the Marshalled List, my advisers and I thought of facility in the sense referred to in the code, such as access to the telephone for shop stewards and so on. What has been put forward as a different interpretation is not what I have considered in any detail. I am advised that it is unlikely, in the Government's opinion, that discrimination would take place. If after further consideration it appears otherwise, I shall write to the noble and learned Lord, Lord Stow Hill: but the passing of this Amendment at this stage would not improve the Bill.

LORD STOW HILL

I am not quite sure where I stand. I do not want to abuse your Lordships' confidence and I realise that I have already spoken twice, but I hope I may be permitted to speak for a third time to say that having conceded that the words "advantages" and "facilities" are too wide and would need reconsideration. I should find it difficult to ask your Lordships to divide in support of the Amendment. I only express the sincere hope that the noble Lord, Lord Windlesham, will recognise that there is a difficulty here and will be able to bring something forward. The Opposition can, of course, still revert to the matter on the Third Reading. That being so, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD STOW HILL

I referred to Amendment No. 12C in the discussion on the last Amendment, and I do not move it.

9.52 p.m.

LORD WINDLESHAM moved Amendment No. 13: Page 4, line 31, at end insert: ( ) Where an employer offers a benefit of any kind to any workers as an inducement to refrain from exercising a right conferred on them by subsection (1) of this section, and the employer—

1. (a) confers that benefit on one or more of those workers who agree to refrain from exercising that right, and
2. (b) withholds it from one or more of them who do not agree to do so,

the employer shall for the purposes of this section be regarded, in relation to any such worker as is mentioned in paragraph (b) of this subsection, as having thereby discriminated against him by reason of his exercising that right.

The noble Lord said: In Committee, noble Lords will remember, the Government were pressed by the noble Lords, Lord Beaumont of Whitley and Lord Delacourt-Smith to accept an Amendment very much on the lines of this Amendment. We did not at the time see our way to recommending acceptance of the Amendment which the noble Lord on the Liberal Front Bench moved because of various difficulties which stood in the way, chiefly in regard to enforcement and remedies which could be provided. However, at that stage I agreed that any offer of an inducement by an employer to a worker not to exercise his rights under the Bill should be regarded as an unfair industrial practice and undertook that the Government world introduce a form of words to make this point explicit. That is the origin of the Amendment which is before us now. It fulfils the undertaking which was given.

The effect of this Amendment is to make clear that an employer will be regarded as discriminating against a worker if he confers a benefit on one or more other workers who agree to refrain from exercising their rights under subsection (1) but does not confer the benefit on a worker who does not agree to refrain. The Amendment deals specifically with inducement to refrain from exercising a right which is conferred under subsection (1). The rights conferred by this subsection exclude the right to take part in a strike or other form of industrial dispute. In practice, the result of this limitation in the application of this Amendment will be to ensure that an employer will not be committing an unfair industrial practice should he offer to re-engage any of his workers who may be on strike on the condition that they remain at work.

Having said that, I should make clear that the arrangement extends to all situations. If, during an industrial dispute, the employer discriminates against some of his workers by conferring a benefit on others to induce them to leave the union, he will be committing an unfair industrial practice by discriminating against workers who have not received the benefit. As regards the enforcement, which was one of the difficulties discussed in Committee on the earlier Amendment, a worker who believes that he has been discriminated against because of benefits offered to others may complain to an industrial tribunal, and remedies will be available in the form provided in Clause 106. I beg to move.

BARONESS WHITE

My Lords, I am sure we all welcome this Amendment put forward by the noble Lord, Lord Windlesham. When we discussed this matter at an earlier stage, it was, I think, one of the relatively few occasions in our deliberations when all sides of the Committee seemed to be agreed, because the Liberals at that time were supporting an Amendment in similar terms to that put forward from these Benches, and the noble Lord, in replying on that occasion, after suggesting various other possible courses of action, finally came down in favour of the Government looking at this and bringing forward their own Amendment. We are therefore glad to have this Amendment, and also the assurances given by the noble Lord as to the extent of the Amendment, because whatever our views may be about other parts of the Bill, I do not think any of us would wish to countenance inducement being given to one set of workers rather than another by the employer in order to try to prevail upon them to take certain courses of action. I think we should all regard that as unfair in all senses of the word, and not merely in the purely legalistic terms of the Bill. We very much welcome this proposal, and the assurances given by the noble Lord that this Amendment is intended to cover a situation when an industrial dispute might be in progress, which, after all, could be very germane to the difficulties that we discussed on the earlier occasion. So far as we are concerned, we are happy to accept the Amendment.

LORD HENLEY

My Lords, I should like to thank the noble Lord for meeting us on this point. My noble friends and I feel that the Amendment does what we asked.

On Question, Amendment agreed to.

9.58 p.m.

LORD DELACOURT-SMITH moved Amendment No. 13A: Page 4, line 32, at end insert— ( ) Notwithstanding any provision con-tamed in this section it shall not be an unfair industrial practice for any employer who has by any public notification in any advertisement or otherwise made it known that he has vacancies in any particular employment for which he is prepared to engage only applicants who are members of a particular organisation of workers named in such notification, to engage applicants who are members of such organisation of workers in preference to applicants who are not such members.

The noble Lord said: My Lords, I beg to move Amendment No. 13A, on the Marshalled List in the name of my noble friend Lord Stow Hill and myself. This point really derives from one which was raised on an earlier stage of the Bill by my noble friend Lord Brown, who in the course of the discussion in Committee raised the question of an employer who advertised vacancies, specifying that he desired to employ members of a particular trade union. My noble friend went on to ask whether in such a case an employer would render himself liable to any kind of prosecution, or would in any way place himself at risk. He quoted the case, which of course has been referred to in the Press, of an individual who advertised in the newspapers for a Scottish cook, and who found himself complained against under the Race Relations Act.

The noble Lord, Lord Drumalbyn, has courteously advised my noble friend that after careful consideration the Government are of the opinion that under the Bill as it stands a person who advertised such employment vacancies, and specified that he wished to employ member of a particular trade union, would not place himself in any danger, and that he would not by so doing be committing an unfair industrial practice. The noble Lord observed in expressing this view of the Government, that Clause 5(5) provides that an employer will not be regarded as preventing a worker from exercising the rights conveyed under subsection (1) if he seeks to encourage a worker to join a trade union, provided that he offers no reward for compliance nor imposes any penalty for non-compliance. This subsection was introduced to weight the scales in favour of union membership.

In this respect it would be claimed by the Government that the Bill is a biased Bill in the sense that an employer is not exposed to any penalty if he takes the hazardous course of advising and encouraging a worker of his to join a trade union.

It is, as I pointed out in our debate yesterday, a little strange that when we have a code of practice, debated yesterday, which starts with such an excellent foreword emphasising the importance of strong representative trade unions, and when on so many occasions the Government have said that it is a matter of public policy that the establishment of strong trade unions should be encouraged, there is to be a provision in the Bill which makes it clear that an employer does not commit an offence if he encourages a worker to join a trade union. But I found, and I think my honourable friend also found, that the further terms of the Government's opinion on this point are rather peculiar for, as I understand the position, as the Bill stands at the moment unamended, if an employer chooses to advertise in terms which make it clear that he wishes to employ trade union labour, for example, even to use such strong terms as "non-unionists need not apply", if indeed a non-unionist insists on applying and if the employer then in fact prefers the unionist to the non-unionist he is in danger of committing an unfair industrial practice.

If this is indeed the effect of the Bill as it stands, it illustrates the extraordinary anomalies and absurdities into which the Government are getting themselves. Therefore this Amendment has been placed upon the Marshalled List. If an employer, in the exercise of his preference, prefers trade union labour and indicates this very clearly in his advertisement, and if it is the desire of the Government that indeed there should be a bias in favour of encouraging trade union membership, it is surely unreasonable that if, having published that advertisement, the employer then does the perfectly logical thing and rejects people who are outside the terms of the advertisement (which he is quite properly entitled to do) he is then under a threat of being regarded as having committed an unfair industrial action. In order to clarify this and to bring some logic into the situation, my noble friend and I have put this Amendment on the Marshalled List. I trust that, as it is the declared desire of the Government to encourage trade union membership and to assist employers to encourage their workers to become members of trade unions, the Government will feel able to accept the Amendment. I beg to move.

EARL FERRERS

My Lords, the noble Lord referred in his opening remarks to the case put forward by the noble Lord, Lord Brown, with regard to an individual who advertised for a Scottish cook, and how he was therefore prosecuted under the Race Relations Act. The noble Lord, Lord Brown, asked whether the Government would take this particular point into account to see how it related to this Bill. As the noble Lord rightly said, my noble friend Lord Drumalbyn undertook to consider this point and he wrote to the noble Lord, Lord Brown, upon it. The position is that merely by advertising in this way no contravention of the Bill will be committed. The point at which the contravention would come is if the employer then refuses to engage a worker, who is otherwise qualified for the vacancy, solely on the grounds of union membership or non-union membership. At that point he may be endangering himself of committing an unfair industrial practice.

The noble Lord, Lord Delacourt-Smith, thought that this was not quite clear enough. The answer, I believe, was given by the noble and learned Lord on a similar point in the Committee stage, when he said that a person who wished to employ somebody in his shop and turned down a coloured man who applied for the job solely on the basis of his being coloured would open himself to prosecution under the Race Relations Act. If he said the coloured man had a lisp, and that the reason why he was being turned down was because the lisp might affect his customers, he would not be open to prosecution under the Race Relations Act. Exactly the same would happen here: that if a person was turned down simply and solely because of his belonging or not belonging to a union, then the employer would be opening himself to an unfair industrial practice.

The Amendment as a whole would be unacceptable to the Government because it would enable an employer to operate a pre-entry closed shop. All he would have to do would be to place an advertisement in a newspaper saying that he had vacancies and wished to engage only members of a certain trade union. Having done that, under this Amendment the employer could then give preference to members of that particular union to fill the advertised vacancy. This would have the effect of undermining all the provisions in the Bill which endeavour to ensure, first, that any worker may exercise his right not to belong to a trade union if he so chooses, and, secondly, that an employer should not discriminate against non-union members, or refuse to engage non-union members. As the noble Lord rightly pointed out, the Bill does not hold the scales entirely level between membership and non-membership because in Clause 5(3) employers are encouraged, or permitted to encourage, people to join trade unions. I suggest that if this Amendment as a whole were accepted it would undermine all the provisions with regard to the rights to belong or not to belong to a trade union, which the Government feel are very important.

LORD DELACOURT-SMITH

My Lords, if I may, by leave, put a further question—

THE LORD CHANCELLOR

I do not think the noble Lord needs the leave of the House.

LORD DELACOURT-SMITH

My Lords, this is a most anomalous and confusing position. Is the noble Lord really saying that it would be quite proper for an employer, in the circumstances which have been described, to encourage an applicant who was not a trade unionist to join a trade union by drawing his attention to the terms of the notice?

EARL FERRERS

No, my Lords. I think the noble Lord has got the two things a little confused—not in his own mind I know. I was trying to put the point as courteously as I could, and perhaps I leaned over backwards and forwards in doing so. If an employer puts an advertisement in a paper he is entitled to advertise for whom he wants or for what he wants. Whether, if he accepts a person because he is a member or because he is not a member of a trade union, at that point he makes himself liable to committing an unfair industrial practice I do not know. What the Bill does is to allow employers to encourage people who have become employed by them to join a trade union. It does not specifically suggest that employers should encourage people whom they have not yet employed to become members of a trade union.

LORD STOW HILL

My Lords, it emerges from what the noble Lord is saying, does it not, that if an employer says in his advertisement, "I have 20 vacancies and I prefer to employ persons who are members of a particular union", and 40 people turn up in response to that advertisement and ask to fill those vacancies, if in that situation the employer chooses the 20 of the 40 who are members, and none of the 40 who are not members, he is, as I understand the noble Lord, committing an unfair industrial practice and renders himself liable to claims for compensation because he has done so. I take it that is the effect of his argument, and if that is so, is that not a very unreal and unsatisfactory position?

EARL FERRERS

My Lords, I am fearful that I should contravene the rules of the House by speaking for a third time. The situation is that if a person applied for a job and he was not a member of a trade union, although the advertisement said that trade unionists only were required, and if he were not accepted for the employment in the job, he could, if he felt aggrieved, say, "I have been turned down for this job because I was not a member of a trade union". It may be proved that this was not why he was turned down. He may have been turned down because he was inadequately qualified for the job. But only at the point at which he says, "I have been turned down in my judgment because—and for no other reason—I was not a member of a trade union" the employer may be open to the possibility of having committed an unfair industrial practice; but of course it will be open to the employer to prove that that is not the reason why he turned down the applicant.

LORD BERNSTEIN

My Lords, may I ask a simple question? You have a union, a closed shop if you like, operating a very successful plant, and wish only people of a particular union to be engaged. How do you let it be known that the only applicants who have a chance of engagement would be members of that union?

BARONESS WHITE

My Lords, may I pursue this point a little further? In our earlier deliberations one of the reasons why we entered into this sort of discussion was because, in reply to points raised in the debate, the noble Lord, Lord Drumalbyn, was suggesting that it was perfectly in order for an employer to advertise and subsequently to employ only persons who were adequately qualified, and if there were overcrowding in an industry this could be met by raising the level of qualification, to which it was replied—and this was germane to at least one of the potential closed shops to which my noble friend Lord Bernstein has referred—that in acting there are no paper qualifications and membership of Equity is accepted as being a ground for employment in the theatrical profession and certain branches of the cinematograph profession. Similarly, the seamen where the other closed shop provision is likely to apply; except at officer level there are no qualifications on paper that can be required, but the National Union of Seamen, for the benefit and the safety of its own members, makes certain requirements of its own.

As I recall (I have not the actual words), my noble friend Lord Delacourt-Smith mentioned certain engineering processes where it is extremely important that only certain types of people should be engaged, and it would be only right and proper to indicate this in the advertisement. But they are not qualifications such as people would have who have passed certain examinations or are members of certain professional bodies. It is one of the functions of a union to decide whether or not a chap is really suitable to work with fellow members in particular occupations or processes. So we really must pursue this matter a little further.

In particular, I ask the noble Earl—certainly we would gladly give him leave to speak again—what is the position if one is advertising in an establishment in which there is either an agency agreement or a closed shop agreement? I grant that the particular Amendment on the Order Paper is in more general terms, but I do not think we ought to leave it without knowing exactly what the Government attitude is, not only to advertisements but also to the subject of engagements where there is already an agency or a closed shop.

EARL FERRERS

My Lords, may I briefly say this? With regard to the points which the noble Baroness has made about Equity, of course there are special provisions under a special clause to cope with this particular form of approved closed shop; and with regard

to agency shops, of course that is a facility that exists in an establishment. All this particular clause, or the Amendment with which we are dealing, does is to prevent an employer from turning an applicant down simply by virtue of the fact that he was not a member of a specific union, because in those circumstances this would be continuing a pre-entry closed shop.

10.18 p.m.

On Question, Whether the said Amendment (No. 13A) shall be agreed to?

Their Lordships divided: Contents, 20; Not-Contents, 79.

CONTENTS
Archibald, L.	Gaitskell, Bs.	Milner of Leeds, L.
Bernstein, L.	Gardiner, L.	Phillips, Bs, [Teller.]
Blyton, L.	Hoy, L.	Shepherd, L.
Brockway, L.	Janner, L.	Stow Hill, L.
Champion, L.	Lindgren, L.	Wells-Pestell, L.
Davies of Leek, L.	Llewelyn-Davies of Hastoe, Bs. [Teller.]	White, Bs.
Delacourt-Smith, L.
Diamond, L.

NOT-CONTENTS
Aberdare, L.	Daventry, V.	Latymer, L.
Ailwyn L.	Davidson, V.	Mowbray and Stourton, L.
Aldenham, L.	Denham, L. [Teller.]	Oakshott, L.
Allerton, L.	Digby, L.	O'Neill of the Maine, L.
Balerno, L.	Drumalbyn, L.	Orr-Ewing, L.
Balfour, E.	Ebbisham, L.	Rankeillour, L.
Balfour of Inchrye, L.	Elliot of Harwood, Bs.	Ruthven of Freeland, Ly.
Beauchamp, E.	Emmet of Amberley, Bs.	St. Aldwyn, E.
Belhaven and Stenton, L.	Exeter, M.	St. Just, L.
Belstead, L.	Falkland, V.	St. Oswald, L.
Berkeley, Bs.	Ferrers, E.	Sandford, L.
Bolton, L.	Ferrier, L.	Sandys, L.
Boston, L.	Fortescue, E.	Seear, Bs.
Brabazon of Tara, L.	Goschen, V. [Teller.]	Selkirk, E.
Bradford, E.	Gowrie, E.	Sempill, Ly.
Brooke of Cumnor, L.	Gray, L.	Shaftesbury, E.
Brooke of Ystradfellte, Bs.	Greenway, L.	Sinclair of Cleeve, L.
Brougham and Vaux, L.	Gridley, L.	Skelmersdale, L.
Burton, L.	Hacking, L.	Somers, L.
Coleraine, L.	Hailsham of Saint Marylebone, L. (L. Chancellor.)	Thomas, L.
Colyton, L.		Thorneycroft, L.
Conesford, L.	Henley, L.	Tweedsmuir of Belhelvie, Bs.
Craigavon, V.	Hood, V.	Vivian, L.
Cranbrook, E.	Ilford, L.	Wakefield of Kendal, L.
Crathorne, L.	Inglewood, L.	Ward of Witley, V.
Crawshaw, L.	Kemsley, V.	Windlesham, L.
Cromartie, E.	Kilmany, L.

Resolved in the negative, and Amendment disagreed to accordingly.

10.25 p.m.

LORD STOW HILL moved Amendment No. 13B: After Clause 5 insert the following new clause: Validity of existing closed shop agreements .—(1) Nothing contained in this Act shall render unlawful or unenforceable a closed shop agreement made between one or more employers and between one or more trade unions or between an employers' association and one or more trade unions before the coming into force of this part of this Act and, if such agreement has ceased by effluxion of time, thereafter renewed whether before or after the coming into force of this part of this Act by agreement between the parties thereto who were parties thereto at the time when it so ceased or by any successors in title or assignees of any such party. (2) In this section 'a closed shop agreement' means an agreement whereby it is agreed, in respect of workers of one or more descriptions specified in the agreement, that their terms and conditions of employment shall include a condition that every such worker, it he is not already a member of that trade union or of one of those trade unions, as the case may be, must become a member thereof. (3) It shall accordingly not be an unfair industrial practice for any party to any such agreement or any person acting on behalf of such a party to enforce or to seek to enforce or take any step for the purpose of enforcing any provision of any such agreement.

The noble Lord said: My Lords, in moving this Amendment I feel that in a sense I must ask the indulgence of the House for coming back again to the question of a closed shop agreement. However, I think the House will recognise that although in some ways we are going over ground that we have very thoroughly trodden before, this question of a closed shop represents such a basic disagreement between both sides of the House that it is justifiable, and it is indeed the duty of the Opposition again to probe it, and to probe it thoroughly. Various approaches are possible. When the Bill was first introduced there was no provision contained in it for an approved closed shop. That now finds itself in Clause 17 of the Bill. But when the matter was being discussed on Committee it was represented to the Committee—and I am sorry to represent in similar terms the same argument to the House on Report—that the position as it would remain under Clause 17 still is very unsatisfactory.

Noble Lords opposite object to the closed shop on the civil liberties principle. It is supported on this side of the House as really being an almost indispensable instrument if you really want to promote orderly industrial arrangements. Nobody would claim of any human institution that it is perfect, but having regard to the enormous number of workers in this country who for years and years past have been included in close shop agreements the number of complaints are remarkably few. That I would put before the House as an assertion which I think few would dare really to controvert. In every single human institution there are mishaps, misunderstandings and all the rest, but the arrangements between management and unions under which closed shop agreements are established have worked over the years remarkably well and have led to a trade union structure in this country which I think one can say still leads the world and is a model to the rest of the world.

It is against that background that I venture to refer to this subject. The form in which I ask your Lordships to consider the matter in Amendment 13B is the following. The Amendment would provide that in spite of the provisions of Clause 5 (1)(b), which confers upon a worker a right not to belong to any union, a closed shop agreement which is in existence at the time when this Act comes into force shall not be invalidated, shall continue to be perfectly lawful and in operation, and any employer or member of a trade union who seeks to operate its provisions shall not be guilty of an unfair industrial practice. The Amendment is just a little bit more elaborate than that, because it provides for the case in which a closed shop agreement was made before this Bill will come into force, expired by the effluxion of time, and was then renewed. But the substance of the Amendment is that where, at the time the Bill comes into force, there is in being a closed shop agreement, this closed shop agreement shall continue.

May I, for a moment, look at the possibility as it is left by the Bill?—and again I am sorry that I am going over ground which we have previously explored. The closed shop in being when the Bill comes into force, if its provisions are unchanged, must come to an end. I think that we are all agreed upon that. Supposing the parties thereafter think it would nevertheless be a good idea to have a closed shop. They must go through the procedure which is laid down in Clause 17 of this Bill, and which is amplified in Schedule 1. It is a very cumbersome and difficult procedure. To begin with—and this is a point we have criticised before—it can be set into operation only if there is a joint application made by both the trade union and the employer's side. That is by the way. That is the subject of a later Amendment. Supposing you have a joint application; even then, under paragraph (5) of Schedule 1, those who wish to promote the application have to take upon themselves the almost impossible burden as I think of proving, to the satisfaction of the Commission, the various matters which are set out in paragraph (5).

The Committee of your Lordships' House looked at those matters in detail, we had a debate on them, and I do not want to repeat what was said in that debate. All I would say by way of summary is that really I should have thought that in almost all circumstances it is next to impossible to prove affirmatively what the joint applicants would be called on to prove. It would be extremely difficult to prove, by evidence, that an agency shop would not do the same work. It may be pretty obvious that it would not, but if you are asked to establish it affirmatively, and to discharge a burden of proof to show it, you really are up against a difficult problem. There are other matters which have to be established. That is only the beginning of your tribulations. Then the matter has to be examined; there has to be an application before the court, and an opportunity has to be given for those who wish to start a ballot (who may be a comparatively small discordant element) to get a ballot in being, and one does not know how this is going to work. I should have thought that months may go by while all this is being done, and at the end of it one does not know what the result would be.

To leave the situation in that way is really profoundly unsatisfactory. You have a very large sector of industry operating in an orderly fashion because closed shop agreements are in being in relation to that industry, and at a stroke of the pen they are all to come to an end. Not only to come to an end, but anybody who seeks to promote them in any form renders himself liable to pay compensation. Then what is to happen? Months are to go by and then an application, which has an uncertain result after a long period of time and a very tortuous and difficult process, may lead to an order for a closed shop. Surely some provision should be made at least for the interim period. I should have thought—and this Amendment goes a little bit further than the mere interim period—that common sense dictated that where you find that there is a closed shop (and I say in parenthesis that it has worked satisfactorily for years and years) why on earth not leave it alone? Why, for the purpose of a doctrine which we all respect and we all wish to uphold, but which has little application in practice in the circumstances, has one got to upset all these arrangements and plunge relationships into a confusion which is utterly unnecessary and totally against the public interest? That is the case for it. The proposition is perfectly simple.

Look at industry, my Lords. If when the Bill comes into force it is found that there is a closed shop to which both sides assent, with which they are both perfectly content, then leave it alone, and apply Clause 17 only in cases where there is not yet a closed shop, and where those concerned in that section of industry feel that it would be a good idea to make a joint application. That would be the sensible way of looking at this matter. I respectfully submit to the Government that, for quite inadequate reasons, what they are doing is simply upsetting excellent existing arrangements. If their object is, as we accept and which we share, to promote orderly arrangements, then the provisions which the Government are introducing are going precisely in the opposite direction.

That is the case, and it does not advantage it to repeat it. For those reasons I ask the Government to say that they fully accept, not an amended version of the Amendment, but what the Amendment in fact provides for. Leave existing closed shops alone, and let them go on functioning to the advantage of everybody. My Lords, I beg to move.

LORD DELACOURT-SMITH

My Lords, I should like briefly to support what my noble friend has said, and in so doing to draw attention again to the fact that in their action on this matter the Government are going, and will continue to go if they reject this Amendment, far beyond what was recommended by the Donovan Commission in its chapter on the closed shop. It gave a considerable amount of study to this subject, it heard a great deal of evidence upon it, it promoted research upon the matter, and it reached the very firm conclusion that, although there were reforms which were necessary, and although in some respects there were criticisms to which some closed shop agreements were open, the prohibition of the closed shop must be rejected. The criticisms to which the Donovan Commission drew attention, which I itemised at an earlier stage and over which I do not propose to go in detail, are already dealt with, perhaps not very satisfactorily, in other clauses of the Bill. Given those other clauses there is really no need for the elaborate procedure and the initial prohibition, as it were, of the closed shop, which is the case at present. I add my voice to that of my noble friend in hoping that the Government will be prepared to accept this new clause.

BARONESS GAITSKELL

My Lords, may I also support both of my noble friends on this Amendment? I do not pretend to be any kind of an expert or to understand all the legal complications of this Bill, but in many instances the Government are being completely schizophrenic in their ideas about the freedom of the individual. The case could not have been put better than by my noble friend Lord Stow Hill. It is simply unanswerable, and merely goes back to the political idea of individual freedom; the kind of individual freedom which comes up against the freedom of organisation.

LORD DRUMALBYN

My Lords, I think the noble Lord, Lord Stow Hill, is well aware that this is a matter on which the two sides of the House are fundamentally divided. We on this side believe it is right that an individual should not be excluded from the opportunity of gaining employment because he does not belong to a particular union. We also believe it is right for whatever organisation exists in the way of a trade union to command the general support of the workers in an establishment, if I may say so, I think the noble Lord begged some very important questions here. He talked about arrangements which had worked satisfactorily for years. He also said that it was totally against the public interest to change these arrangements. Those are two propositions that cannot be supported by any real evidence. The fact that there have been very few complaints raised, as the noble Lord has said, is just one of those things that happens, like acceptance of the weather. These are the conditions under which the particular industries have been working and they have been accepted; but it does not follow that they are right. I We believe that it is fundamentally right, and we stand by these principles, that a man should not be excluded from a job for which he is qualified merely because he is not a member of a trade union.

I think that this Amendment accepts at any rate that this principle should apply from now on, but what it does is to divide our working population quite arbitrarily into those who are to enjoy the right not to belong to a union and those who are to be denied that right. Surely that is fundamentally unacceptable. The mere fact that closed shops exist at the present time, if one accepts these principles, does not make it justifiable that they should continue. Moreover, the Government believe, and believe firmly—and this I admit is yet to be shown—that the agency shop will work perfectly well; and in the agency shop the right of choice to belong or not to belong to a union is assured, and a man cannot be denied entry because he does not belong to a union.

I should have thought that it was totally at variance with the principle in Clause 5(1)(b) to say that the 3 million or 4 million people who at present work under closed shop conditions shall not be allowed to exercise their rights. What the noble Lord's Amendment is seeking to do is to ensure that those rights should not be exercised in existing closed shops. I quite understand the motives of the Opposition. As the noble Lord says, a concession was made at an earlier stage of the Bill, in another place, to allow for an approved closed shop, as provided for in what is now Clause 17 and Schedule 1; but that is the limit to which the Government think it is right to go. They do not believe that it would be right to extend so very widely the existence and the continuation of the closed shop: because what the noble Lord's Amendment seeks to do is to continue the closed shop indefinitely; to continue it irrespective of whether the union which is a party to any such agreement is or remains or becomes a registered organisation, and regardless also of any test of the wishes of the members of the union or any possibility to test it under the Bill.

My Lords, I do not want to go over again the reasons why the Government firmly support the rights of workers to choose to belong or not to belong to a union. I believe this was made very clear at the Committee stage, and indeed on Second Reading. Or why we equally firmly believe that the agency shop agreements provide a large measure of security and stability for trade unions and a substantial incentive to workers to belong to them. The point here is a much narrower one. It is simply this. The question is: will the outlawing of existing closed shop agreements cause so marked a deterioration in industrial relations and in union strength that these situations must be and should be distinguished from all others where the parties might wish to establish a closed shop in the future? That is the question. The Government do not believe that any case justifying this distinction has been made out. We are here dealing with the principle of the thing. The Government are absolutely firm in their view that the only grounds on which approved closed shops should be permitted are those set out in Schedule 1. These criteria will apply whether or not there is already a closed shop in existence.

The noble Lord asks, as was asked on the Committee stage, about the transitional stage. He agrees that closed shop agreements run for a period and are due for renewal at the end of that period. As I pointed out on Committee, there have been recently many closed shop agreements that have been coming to an end and negotiations have been entered into for the substitution of an agency shop agreement. I do not think that any difficulties have arisen over that. It is true that there will be some closed shop agreements 'which will not reach their term before the Act comes into effect; but there again it is easy to negotiate before the end of the term agency shop agreements instead of closed shop agreements.

I really believe that in the vast majority of cases there will be very little difficulty from the point of view of the smooth running of the enterprises in which they exist. I really believe that. So I do not think it is worth while even considering the noble Lord's Amendment within the terms of the Bill and the ideas we hold on these matters. I am sorry to have to say that to the noble Lord. He is trying to push us a little further along the line each time but we cannot go beyond what we have said in regard to approved closed shop agreements. I agree that the tests are severe, but the whole point is that we believe that the agency shop agreement will suffice. That is why the Commission on Industrial Relations can recommend an approved closed shop only when they are of the opinion that an agency shop agreement will not suffice. I am sorry, but I cannot recomment the House to accept this Amendment.

LORD STOW HILL

My Lords, the Opposition are always in very great difficulty when arguing with a Minister who says, "Nothing doing!" so attractively, so courteously and with such sincerity but firmness. It is almost useless my seeking to add anything except to thank the Minister. But may I correct one or two things that he said? He submitted that the effect of the Amendment was to keep the closed shop in being for good and all. Nothing of the sort! If it has been renewed after coming to an end before the Bill comes into operation, it continues in being after the Bill comes into operation, but only until its term expires. Then it comes to an end. This is not a permanent situation. It simply gives a further lease of life to the closed shop which is in being when the agreement comes to an end.

My other comment is with regard to what he says about agency shop agreements. I say that because the noble Lord has made this observation before. He believes in agency shop agreements and so do the Government. I believe that agency shop agreements will do a great deal to open the door wide to splinter unions. Those who wish to organise splinter unions must be thanking the Government for their arrangements with regard to agency shops. That is all that they do. If the noble Lord is hoping that stability will be provided by the substitution of agency shops for closed shops, I am afraid he will be seriously disappointed. Agency shops will proliferate splinter unions and discordant groups and will have little other effect.

10.52 p.m.

LORD DRUMALBYN moved Amendment No. 14: Page 5, line 21, at end inserts— ( ) Where a worker to whom an agency shop agreement applies has agreed to pay appropriate contributions to the trade union with which the agreement was made, and requests his employer to deduct the contributions from his remuneration and pay them on his behalf, then so long as that request remains in force—

1. (a) he shall not be regarded for the purposes of subsection (2)(a) of this section as having refused to pay the contributions to the trade union, and
2. (b) any failure on the part of the employer to comply with the request shall not he regarded as a failure on the part of the worker to pay the contributions ".

10.50 p.m.

On Question, Whether the said Amendment (No. 13B) shall be agreed to?

Their Lordships divided: Contents, 19; Not-Contents, 67.

CONTENTS
Archibald, L.	Gaitskell, Bs.	Seear, Bs.
Bernstein, L.	Gardiner, L.	Shackleton, L.
Brockway, L.	Henley, L.	Shepherd, L.
Champion, L.	Lindgren, L.	Stow Hill, L.
Davies of Leek, L.	Llewelyn-Davies of Hastoe, Bs. [Teller.]	Wells-Pestell, L.
Delacourt-Smith, L.		White, Bs.
Diamond, L.	Milner of Leeds, L. [Teller.]

NOT-CONTENTS
Aberdare, L.	Daventry, V.	Kilmany, L.
Aldenham, L.	Davidson, V.	Latymer, L.
Allerton, L.	Denham, L.	Mowbray and Stourton, L. [Teller.]
Amherst of Hackney, L.	Digby, L.
Balerno, L.	Drumalbyn, L.	O'Neill of the Maine, L.
Balfour, E.	Elliot of Harwood, Bs.	Rankeillour, L.
Belhaven and Stenton, L.	Emmet of Amerberley, Bs.	Ruthven of Freeland, Ly.
Belstead, L.	Exeter, M.	St. Aldwyn, E.
Berkeley, Bs.	Falkland, V.	St. Just, L.
Boston, L.	Ferrers, E.	St. Oswald, L.
Brabazon of Tara, L.	Ferrier, L.	Sandford, L.
Bradford, E.	Goschen, V. [Teller.]	Sandys, L.
Brooke of Cumnor, L.	Gowrie, E.	Selkirk, E.
Brooke of Ystralfellte, Bs.	Gray, L.	Sempill, Ly.
Burton, L.	Greenway, L.	Shaftesbury, E.
Colyton, L.	Gridley, L.	Sinclair of Cleeve, L.
Conesford, L.	Hailsham of Saint Marylebone, L. (L. Chancellor.)	Skelmersdale, L.
Craigavon, V.		Somers, L.
Craigmyle, L.	Hatherton, L.	Thomas, L.
Cranbrook, E.	Hood, V.	Tweedsmuir of Belhelvie, Bs.
Crathorne, L.	Ilford, L.	Vivian, L.
Crawshaw, L.	Inglewood, L.	Ward of Whitley, V.
Cromartie, E.	Kemsley, V.	Windlesham, L.

Resolved in the negative, and Amendment disagreed to accordingly.

The noble Lord said: My Lords, it may be for the convenience of your Lordships if we take together with this Amendment No. 31 to Clause 17. During Committee stage the question was raised on more than one occasion of introducing a provision to permit the automatic deduction of the appropriate contribution from wages or salaries of non-union members in an agency shop situation. An undertaking was given to the noble Viscount, Lord Amory, and to the noble Lord, Lord Delacourt-Smith, and to the noble and learned Lord, Lord Pearson, that the Government intended to look into the possibility of introducing such an Amendment. I would like to say that these Amendments apply only to non-union members. They will not affect in any way arrangements which may have been made between a union and an employee for the deduction of union subscriptions. Many agreements of this sort are already in existence and it is not our intention to disturb them.

The purpose of these Amendments is to protect both the non-union member and the trade union. In them the non-union member is offered a facility for the deduction from his pay of the appropriate contribution, if he so wishes. Noble Lords will note that by "appropriate contribution" I mean a contribution payable by a non-union member under an agency shop provision or payable by a conscientious objector to a charity under approved closed shop or agency shop provisions. A non-union member may or may not choose to avail himself of this facility, but it is available if he wishes it and prefers to tender his contribution through his employer by a form of check off. The great advantage to him is the protection it will afford against accusations of non-payment, bearing in mind that under the previous subsection the penalty for refusal or failure on the part of a non-union member in an agency or approved closed shop to pay the appropriate contribution under an agency or approved closed shop agreement may be loss of his employment.

These Amendments will ensure that once a non-member has made a request to his employer to deduct and pay his contribution on his behalf, the worker will be regarded as having fulfilled his obligation under the agency shop provisions. Should the employer fail to make the deductions or fail to pay the amount deducted in accordance with the request, the union will not be able to accuse the worker of having broken the terms of his contract of employment and the employer will not be liable to pressure to dismiss the worker.

I realise that these Amendments may not entirely satisfy what the noble Lord, Lord Pearson, was asking for. He suggested in our earlier debate that the provisions gave scope for an unscrupulous non-member to raise some controversy over the amount of payment of the appropriate' contribution and to spin out that dispute for a considerable time, finally leaving his employment without making a payment at all. But we cannot hope to frame legislation which will cover every conceivable eventuality. Nevertheless, I think your Lordships will agree that these Amendments should go a long way to making such actions by unscrupulous persons highly improbable. In this respect they will afford protection to the unions. They will also enable the union to make a claim for payment of contributions due to it, provided always that the worker has made a request for deductions to be made, after the worker has left his employment and when perhaps his whereabouts are no longer known. I recommend these Amendments to your Lordships' approval.

BARONESS WHITE

My Lords, we are of course grateful to the Government for putting down these two Amendments because the effect is to bring this into line with what is current union practice in many industries and establishments, namely, that the employer on request can deduct from wages contributions which are due to a union or, in cases of a closed shop or an agency shop, to a charity in the case of conscientious objection. The noble Lord, Lord Drumalbyn, has pointed out that this arrangement will be of sonic protection to the employer in case he should be charged with not having made these payments. But it appears to us from a practical point of view that this will be of limited benefit to the union unless arrangements are provided whereby the employer informs the union of the names of the workers and the amounts he has deducted from wages so that the union may have some record of these.

If the union has no record, it will not be easy for it to decide whether or not the employer is in breach of his obligation to pay over to the union or the charity, as the case may be, what he ought to pay. One can see that there is a protection for the worker, but what happens if the employer is either inefficient—I can hardly suppose it would be a deliberate act on his part—and does not pay over to the union all that should be paid to the union? It will be extremely difficult for the union because it is the worker who makes the request, ex-hypo-thesi not to the union but direct to the employer. It seems very desirable that somewhere in the Bill—I think there is no obligation on the employer anywhere in the Bill as it stands—that there should be an obligation to inform the union in each case of payments made in lieu of dues by the workers who have opted out in the agency shop or the closed shop respectively. How is the union official to know, without most onerous procedures on his part, whether or not so-and-so has paid up and whether the correct amount has been paid out?

It is obviously much easier for the employer to collect all this information than it is for the union to collect it independently. I hope that the Government will pay some attention to this very real practical difficulty. When the union is dealing with its own members it is quite different, because then the union knows who the members are and what the rate of contribution is which is appropriate for each member. Then it is up to the union to make sure that it gets the correct amount from the employee. But it is not really for the union to have to go round to people who are not its members, by definition, in order to find out what they ought to be paying and whether they have paid it.

LORD ARCHIBALD

My Lords, before the noble Lord replies, I should like to put two points to him which really sharpen what has been said by my noble friend Lady White. Supposing the employer fails to carry out the request, he may fail in one of two ways—this is very hypotheical, and I am not suggesting that any employer would do such a thing. Suppose he makes the deduction and does not pay it to the union or to the charity. What penalty is provided for in that case? And if he fails to deduct, and does not pay to anybody, again, what penalty or compulsion is there on the employer? I think this Amendment is deficient in not providing for these two perhaps hypothetical but in fact really practical possibilities that may arise from the operation of the Amendment.

LORD DRUMALBYN

My Lords, I do not anticipate any great trouble on this matter. If we had done so we could have put very elaborate provisions in the Bill. The position is fairly clear. The employee authorises the employer to deduct this amount, and the employer will do so automatically. The noble Lord, Lord Archibald, says: suppose he fails to do so. In that case I have no doubt that it will be followed up, because the employee will find that he is in breach of the provisions of the Bill, so far as the payments due are concerned. That is a point that I should like to look at again. However, I do not see any difficulty on the other point. If the employer does not pay, then he is either wittingly or unwittingly converting money to his own use, and it should be possible to recover that in the ordinary way. However, I will look at the other point the noble Lord has raised.

On Question, Amendment agreed to.

11.7 p.m.

LORD DRUMALBYN moved Amendment No. 15F: Page 6, line 40, leave out subsection (4).

The noble Lord said: This Amendment deals with the last subsection of Clause 7, which excludes provisions of agency shop agreements and approved closed shop agreements from the application of the other subsections of the clause, which deal with pre-entry closed shop agreements and make them void. The deletion of this subsection will place all types of agreements on the same footing, so far as this clause applies to them. The main reason for the Amendment is to avoid any confusion about the effect of what is now Clause 7(4). Its function was intended simply as a signpost; that is, to indicate that a person who is not a trade union member could be refused engagement, if, but only if, there was, for example, an agency shop agreement and the worker made it clear that he refused to belong to the stipulated union and to pay appropriate contributions to it. Our reasons for removing the signpost are twofold: first of all, it is not necessary; secondly, and more importantly, it is just possible that an agency shop agreement or an approved shop agreement might contain a provision, tacked on, as it were, which contravened Clause 7, and in particular Clause 7(2)

It is perhaps unlikely that anyone would regard such an extraneous provision as a legitimate part of an agency shop agreement, but it is possible. It seemed to the Government better to avoid any possible doubt or confusion and at the same time to simplify the Bill. As a third reason, it seemed apparent from the Amendments put down to this subsection that it had been misunderstood—an additional reason for removing the clause. I must apologise to the House for the lateness of putting down this Amendment. I recognise that it has caused a certain amount of inconvenience, which I hope will not be irreparable. I beg to move.

LORD STOW HILL

My Lords, I must confess that I feel puzzled by this change. When I first read what is now Clause 7 and was Clause 6, I was uncertain as to the object of subsection (4). I supposed that it was intended to remove some doubt. What I now feel, from my experience of Parliamentary Counsel and the extraordinary skill they bring to the drafting of Statutes, is that it is difficult 10 suppose that they had not got some very good reason for putting it in. In trying to define that reason, I assumed that they probably thought the expression "engaging workers" was one which was not defined in the Bill anywhere else and could be said to in-elude engaging and keeping engaged or employed. If so, subsection (4) would be needed.

I listened to the Minister's explanation as to why it was there; but I really could not follow his meaning when he said it was there as a signpost. It must have been there in order to provide some specific change in the wording of the Bill; and, speaking for myself, I should have thought it was desirable to keep it in. There might be both agency shop agreements and approved closed shop agreements which could contain a pre-entry provision such as is described in subsection (1). The agreement might still remain a closed shop agreement or an agency shop agreement, as defined in Clauses 11 and 17 of this Bill. When I first read this subsection I imagined that it was because of that consideration that the subsection was put in.

I hope the noble Lord will not press this Amendment. I feel that in doing so he may be introducing a completely unnecessary obscurity in the Bill and, without intending so to do, applying the provisions of Clause 7 to a number of perfectly ordinary closed shop and pre-entry shop agreements. I am sure he will agree that that would be a great misfortune arid that it is not his intention so to do. Therefore I hope he will not press this Amendment but will take further advice from the drafters of the clause; and if, on reflection, he still thinks it is necessary, he can move an Amendment on Third Reading.

THE EARL OF BALFOUR

My Lords, I wonder whether I may point out, for the benefit of those who may not have completely followed this matter, that Clause 7(4) in the earlier Bill followed directly on subsection (1). With the addition of the subsections I entirely support what my noble friend Lord Drumalbyn has said: that this is no longer necessary.

BARONESS WHITE

My Lords, if the intention of the Government is to remove—

THE MINISTER OF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (LORD ABERDARE)

My Lords, may I remind the noble Baroness that we are in Report stage and she has already spoken—

THE LORD CHANCELLOR

My Lords, the noble Baroness has not spoken on this particular Amendment.

BARONESS WHITE

The noble Lord was taking a little repose. I have not spoken on this Amendment because I find it excessively confusing. If the intention of the Government is to remove from the Bill all clauses that may lead to confusion, there are other ways which we might commend. My noble friend has plainly indicated some of the difficulties that we find in this. It is surely rather extraordinary that a clause of this kind should have been included in the Bill, and that the Government should now wake up and say, "Perhaps we had better not put that in after all." I do not wish to press any further arguments because I do not think that will lead to any further progress. We have further Amendments which are germane, and on which we can argue our points about the circumstances in which subsections (1) to (3) should not apply. At this hour of the night I do not feel that we can purposefully carry the argument further than it has already been carried, very effectively, by my noble friend. I certainly support his plea, that the Government should look at this point again, because we find this a difficult Amendment. It was put down rather late, as the noble Lord rightly said. We have not had time for a great deal of consultation on it. I do not think we can say much more, but the noble Lord will appreciate from our further Amendments, among other things, that it is not an Amendment that very much appeals to us.

LORD DRUMALBYN

My Lords, perhaps it might help the House if I said that I could not make out what on earth the subsection was supposed to mean. We know that agency shop agreements and approved closed shop agreements cannot contain provisions allowing pre-entry restrictions. That being so, I found it difficult to understand what the subsection meant. I am told that it was a rider to the clause to say that when you are talking about closed shop agreements and agency shop agreements these provisions do not apply. It is obviously clear from the Amendments put down that it has been misconstrued and would much better be out of the way.

On Question, Amendment agreed to.

BARONESS WHITE had given Notice of Amendment No. 15B: Page 6, line 42, at end insert (" or to any provision of any agreement made between one or more employers and one or more trade unions or between an organisation of employers and one or more trade unions, which has as its primary purpose the regulation of the number of workers of one or more descriptions in a trade or industry or section of a trade or industry in which there is a high level of unemployment of such workers and their employment is casual and intermittent and where a closed shop agreement is in force in respect of such workers.")

The noble Baroness said: My Lords, as a consequence of our having accepted the immediately preceding Amendment, I have to move this one in a slightly different form; namely, to delete at the beginning the word, "or" and substitute: subsections (1) to (3) of this section shall not apply to any provision of any agreement, and so on.

This is purely a drafting change which is required in consequence of the acceptance of the Amendment that we have been discussing. The substance of this Amendment is so similar to that of the next Amendment, No. 15A, in the name of my noble friend Lord Archibald, that I assume it would be for the general convenience of your Lordships if the two Amendments were taken together. In fact, so similar are the terms of these two Amendments, up to a point at any rate, that it would seem that not only do great minds think alike but that they have also been to the same advisers.

The purpose of these two Amendments is to indicate that, in our view, in certain circumstances a pre-entry closed shop agreement would be justifiable, and in so far as it was justifiable the previous subsections of this clause should not apply. We tried to set out the conditions in which we think it would be justifiable to maintain a pre-entry closed shop agreement. Those of your Lordships who were here at the earlier stages of our deliberations in Committee will recall that my noble friend Lord Archibald pleaded very strongly, and I thought very effectively, for a point of entry closed shop—a suggestion which I think the Government might well have taken up; but they did not do so. It seemed to most of us who followed the course of the argument that for the type of industry with which we are concerned, and which we tried to describe in the Amendment—the industries most likely to satisfy the Commission when we come to Clause 17—a point of entry arrangement would be a very sensible thing. If the Government were prepared to accede to that proposition, the Amendments we are now discussing could be tailored to fit.

As the conception of a point of entry closed shop has not been accepted, we felt that the best thing we could do was to put down this Amendment on the clause dealing with pre-entry closed shop and to say that while, whether we like it or not, the Government are determined that in normal circumstances there shall not be pre-entry arrangements, in the circumstances described we feel there is a very strong case for them. If your Lordships will read the kind of conditions in which we are suggesting they are essential for the good conduct of an industry you will see that the type of industry we are concerned about is the industry in which there may be a high level of unemployment, where the employment is casual or intermittent, and and where, in any case, a closed shop agreement is already in force. In other words, the industries we have in mind are those that have satisfied all other criteria, maybe including these ones which commend themselves to the Commission, so that the number of industries in which such conditions are likely to prevail is bound to be small.

We have said that the industries we are especially concerned with are the theatrical profession and the merchant navy. We still feel—and we are strongly reinforced by those whose business it has been over the years to organise workers in these occupations—that, unless there is either pre-entry or point of entry arrangements they cannot possibly carry out what the Government themselves agree is necessary, namely, the closed shop provision. I know that there has been correspondence with the Secretary of State for Employment and those who speak for Equity (and I have no doubt that my noble friend Lord Archibald will refer to that), because we cannot agree with the Government's view that these particular unions can adequately maintain their organisation. In these circumstances, the concessions in Clause 17 of the closed shop would be—I will not say meaningless, because that would be going too far; but they would be far less effective than the Government suppose unless one can get some kind of provision of the type we are asking for in these Amendments. We have tried in the Amendments to spell out the sort of conditions in an industry which in our view would justify a pre-entry closed shop agreement, even though the Government feel that in other circumstances it is not desirable.

We have gone a very long way to try to meet the Government in this matter, because there may well be other industries which will satisfy the Commission under Clause 17. There are other closed shop agreements, as the noble Lord knows very well, in addition to those we have now mentioned; and it may be that in those other industries, although they may satisfy the Commission that there should be a closed shop, these other conditions of employment—namely, the high level of employment, the casual nature of the engagement, and the intermittent nature of the engagement—do not apply. So this is a very considerable limitation and, as we are at present advised, I do not think that these conditions would apply further than the two occupations which I have mentioned. I do not know—other noble Lords may have other instances in mind—but at the moment, so far as we know, these are likely to be the only two. If such conditions should apply in other occupations that we have not thought of, then of course they should be included.

I really must impress upon the Government, if I can, the seriousness with which we regard this matter. We do not feel at all satisfied that the concessions which they themselves have made in Clause 17 will be effective unless we have something at this either pre-entry or point of entry stage. It will not be possible, so the unions advise us, for them to hold their position in anything like the way that is necessary to maintain a closed shop unless they can have this kind of concession for which we are asking. So I hope very much indeed, in view of what I and other noble Lords have said, and, in particular what my noble friend Lord Archibald may say, that the Government will look at this matter very carefully.

THE LORD CHANCELLOR

My Lords, the original Amendment was:

Clause 7, page 6, line 42, at end insert the words on the Order Paper. The noble Baroness has now proposed a manuscript alteration to that, to the effect (if I have it right): Subsections (1) to (3) of this section shall not apply ", and then the words on the Order Paper.

The Question I have to put is that the Amendment in its altered form shall be agreed to.

11.28 p.m.

LORD ARCHIBALD

My Lords, on the basis that we are discussing Amendments Nos. 15B and 15A together, I assume that I should intervene at this stage. I make no secret of the fact that I am arguing this case on behalf of Actors' Equity—not because I have any personal interest in Actors' Equity; in fact, my past experience has been of sitting on the employers' side of the table, facing Actors' Equity in union negotiations. But I have the highest respect for that organisation and its officers. They are doing, and have done, a magnificent job, and I should hate to see the good work which they have done over the years destroyed by this Bill.

I was really amazed at an earlier stage in this evening's proceedings to find such a reasonable and charming opponent as the noble Lord, Lord Drumalbyn, giving to my noble friend Lord Stow Hill, when he was pleading that arrangements which had operated successfully for years should not be destroyed, such a doctrinaire reply. We on this side of the House are used to being accused of being doctrinaire, but in my 22 years in this House I do not think I have ever heard such a blatant declaration of doctrinaire policy as came from the noble Lord, Lord Drumalbyn, earlier this evening. I want to plead with him to look at this matter again, because it is not a matter that should be dealt with on doctrinaire lines; it is a matter that should be dealt with on practical and human lines.

We have indicated in each of these Amendments that we are concerned with industries where there is a high level of unemployment, where employment is intermittent, and so on. May I give some figures with regard to the level of employment in the general acting industry in its widest terms? There are no very up-to-date figures. The latest figures which I can find refer to a survey made in 1966; and the survey must have been accepted as being authentic because it was quoted in a careers pamphlet, Dancing and Drama, produced by the Central Youth Employment Executive. It showed that the average work obtained by actors and actresses was as follows: men in the theatre, 17 weeks in the year; men in films, television, radio et cetera, 19 days in the year. Women in the theatre, 14 weeks in the year, and in films, television, radio et cetera, 11 days in the year. It went on to reveal that the median earnings of an actor were about £800 per annum, and those of an actress, £450 per annum. Anyone who knows the whole range of the industry—theatre, radio, films, television, and so on—will agree that conditions have worsened rather than improved since 1966, so that the figures which I am giving do not exaggerate the magnitude of the problem but rather understate it. In these circumstances, to destroy the arrangements which have operated for so many years between Actors' Equity, film producers, television producers, theatre councils, and so on, seems to me to be designed—if this Bill becomes an Act and is implemented—to produce chaos and anarchy rather than good industrial relations. I would plead with the Government to look at the human and practical elements involved in what they are proposing in the light of what I have said, and to give this further consideration.

11.37 p.m.

LORD DRUMALBYN

My Lords, I do not suppose there is any one subject that has occupied so much attention on the part of the Department of Employment and the Secretary of State, and indeed myself, as this particular subject. As noble Lords will be aware, we have seen a number of people; we have considered the question very deeply, and, I may say, extremely sympathetically. The fact remains that these Amendments would undermine the provisions which outlaw the pre-entry closed shop. The Amendment we are particularly concerned with would exempt pre-entry closed shop agreements relating to industry where the Commission on Industrial Relations had been satisfied that a closed shop agreement was necessary, or where the Commission considered that the criterion set out in paragraph 5(1) of Schedule 1 was satisfied. This would have a paradoxical result. It would mean that it would be easier to secure a lawful pre-entry closed shop agreement than to secure an approved post-entry closed shop agreement. That is because the C.I.R. must be satisfied before it can approve a post-entry agreement, that an agency shop agreement does not provide adequate security. Noble Lords will be well aware that it was largely to accommodate these two types of profession (if we may put it that way: the acting profession and the seamen) that the approved closed shop provisions were introduced into the Bill in another place.

The noble Baroness talked about point of entry and said that without it it would be impossible to carry out the approved closed shop provision in the Bill. I have found it very difficult to understand what is meant by "point of entry". Obviously there are two cases. First, there is somebody who has no experience whatsoever in the acting profession and therefore it is bound to be the case that the qualifications, characteristics, and so forth, of the person are taken into account in the casting agreements. Where a person has been in the profession then he or she does hold a card, and therefore there seems to be no difficulty at all. So it is under the provisions which make arrangements for the acceptance of somebody into the profession, getting a job and all the rest of it, and this is done, I understand, on a quota basis which, from what I have read, certainly does not commend itself to everybody. But, in any case, it is something which could be done perfectly easily, in our view, on the basis of the experience and the qualifications, and would not be dependent upon the holding of a union card or admission to the union before entry. So we do not consider that it is necessary to have an exception on closed shop entry for the acting profession.

We certainly have no more desire than the noble Lord to see the good work that has been done by Equity in any way upset. But we genuinely believe that it will be possible for them to make their arrangements in such a way as to conform to the Bill. Therefore, we consider that these Amendments are not necessary. The Bill will not prevent a union and an employer from making an agreement on the qualifications for entry, provided that union membership is not one of those qualifications. It must be acknowledged that the Amendments constitute an attack on the abolition of the pre-entry closed shop and the Government's refusal to allow approval to be given under Clause 17 to an agreement that would establish a pre-entry closed shop. We have already debated the continuation of the existing pre-entry closed shop this evening, and I need not go over that ground again.

I am aware that the Amendments are designed to assist workers in industries where employment is casual and intermittent and in which there is a high level of unemployment. The figures tabled by the noble Lord have to be examined with some caution, I suggest. What be is giving is the average amount of employment in the acting profession and the average amount of a person's income derived from the acting profession. I note that the noble Lord's Amendment would include an industry where an application for approval of an agreement was refused not because the criteria in paragraph 5(1) were not satisfied, but because the considered that an agency shop agreement would equally well fulfil the purposes set out in paragraph 5(1). The Amendment would therefore enable a pre-entry closed shop agreement, or an agreement which would achieve all the results of a pre-entry closed shop agreement, to be exclused from the prohibitions of Clause 7 when the C.I.R. would not recommend approval of a closed shop agreement in that industry.

BARONESS WHITE

My Lords, I am sorry, but I fail to follow the noble Lord here. The Amendment refers only to cases where a closed shop agreement is in force in respect of such workers. I do not follow his argument on this point.

LORD DRUMALBYN

My Lords, this is so. It would enable the pre-entry closed shop to be maintained in respect of those workers. This is an Amendment which the noble Lord, Lord Stow Hill, had already moved earlier for the continuation of a closed shop agreement, but this one goes a little further. I think that the arrangement under this Amendment, at any rate, is intended to be a permanent one, even if the last one was not so phrased as to be a permanent arrangement.

There is no doubt that the entertainment industry is an industry where employment is casual and intermittent, and where there is high unemployment. It is also very probable that the C.I.R. would find the criteria satisfied in respect of this industry. I am also aware that workers in the entertainment field believe that the provisions for approved closed shops will not afford them the protection they seek unless the approved agreements can be pre-entry closed shop agreements. But let us be clear about what Clause 7 does and what it does not do. It makes void any pre-entry closed shop agreement, or any agreement which requires a union's approval of an engagement. It also empowers the Industrial Court to make an order declaring void any agreement which has the same effect as a pre-entry closed shop agreement. What it does not do is to prohibit an agreement to regulate entry into an occupation by laying down the necessary qualifications, training, skill or experience required of a person wishing to enter that occupation. It is not enough simply to say that there are no qualifications laid down for entry into the entertainment industry; it surely must be possible to devise qualifications so as to enable engagement to take place on that basis. It must be possible in some way to assess the skill, the potentialities, the talent of people entering the industry.

BARONESS WHITE

My Lords, it is not.

LORD DRUMALBYN

My Lords, a good many people go to RADA and other places, and come out with experience or training of that kind, and this obviously could be one of the qualifications. One has to recognise that there are infinite gradations of talent required for different parts of the entertainment industry, but it should certainly be possible to spot latent and undeveloped talent in this way.

What I think it is important to be clear about is that the case for the continuation of pre-entry closed shop agreements in the entertainment industry has been supported by the argument that without a pre-entry closed shop the industry would be flooded by unqualified persons, to the detriment of the services provided and at the cost of unemployment to established artistes. In other words, the pre-entry closed shop is convenient to unions in the industry, and in some respects to management. In the past, membership of the union has been used as the criterion of skill or experience, and as the guarantee to management of the worker's experience. The pre-entry condition of union membership is required, so it is argued, primarily to ensure that only experienced people are engaged. I must say that we do not accept that argument. The object of the pre-entry closed shop can be achieved equally well by an agreement with the management relating to requisite experience. I am sure that the present arrangements, under which full association membership is not granted unless a worker has had, I believe, 40 weeks' experience, can be adapted so that the condition relates not to membership of the union but to eligibility to accept acting agreements, say on the West End stage.

We have given a very great deal of sympathetic consideration to the problems of particular industries, and I have come to the conclusion that the concessions that we have made during the various stages of this Bill should be adequate to meet the difficulties that have been described to us. I do not see that these Amendments are necessary, and I do not believe they are desirable; therefore, I cannot recommend them to your Lordships. I would say, once again, that the Secretary of State has said that he will watch the position extremely carefully, and if a certain industry requires particular and special treatment, then he will consider whether that should be dealt with by legislation.

BARONESS WHITE

My Lords, I am afraid that this is really a classic case of professing to will the end but being absolutely blind to the means that are necessary to achieve it. I will not go over all this again, because we know that there have been discussions, interviews and correspondence between the Secretary of State for Employment and, in particular, Actors' Equity. But what we are asking for is very limited, and we are making it even more limited by these Amendments. There cannot be many professions to which this could apply; in fact, our conviction is that there are no more than two. But the Government are so wedded to their dogma on this matter that they are not prepared to give way, in spite of the evidence which has been put forward by the management and union sides. I say that in so far as Equity is concerned: I am not in a position to say anything about the management on the seamen's side. But it is not believed that the casting arrangements, which, by and large, have worked very successfully, can be maintained without some provision of this kind.

The noble Lord said that it is quite possible to set down criteria and so on, but acting is a highly individual profession. It is very difficult indeed to have a written description to which one should conform in order to qualify, and whether or not one has been to RADA would be a very limiting factor. A number of people who are anxious to go on the stage may not have been in a position to go to RADA. It is not only a matter of the West End stage. Some of the keenest apprehensions in the profession are directed not so much to the West End stage as to the provincial theatres, the touring companies and so on, where there are quite a number of transient employers, as well as intermittent workers. The whole experience of the industry really goes against what the noble Lord has said. I do not want to go into details of the casting agreements, but in the final resort, of course, the employer has the last word. He has to prove to the union that he has a good reason for wanting a newcomer who is not a member of the union, but normally the matter is settled in a perfectly friendly way. So it is not a question of an absolute monopoly on the part of the union, and the union is merely protecting the situation in an industry where there is very high unemployment, and where there are those who are so anxious to see themselves on the stage

12 midnight.

LORD ARCHIBALD had given Notice of Amendment No. 15A: Page 6, line 42, at end insert (" or to any provision of any agreement made between one or more employers and one or more trade unions or between an organisation of employers and one or more trade unions, which has as its primary purpose the regulation of the number of workers of one or more descriptions in a trade or industry or section of a trade or industry in which there is a high level of unemployment of such workers and their employment is casual and intermittent, and where an approved Closed Shop agreement is in force in respect of such workers or where the Commission is satisfied that such an agreement is necessary for the fulfilment of the purposes set that they are prepared to accept almost any terms, to the detriment of those who are making a long-term living in the profession. This is really dogmatic obstinacy on the part of the Government, and we feel so strongly about this that I must ask my noble friends to divide upon this Amendment.

11.50 p.m.

On Question, Whether the said Amendment (No. 15B) shall be agreed to?

Their Lordships divided: Contents, 14; Not-Contents, 61. out in paragraph 5(1) of Schedule 1 to this Act.")

CONTENTS
Archibald, L.	Gardiner, L.	Milner of Leeds, L. [Teller.]
Bernstein, L.	Henley, L.	Shackleton, L.
Davies of Leek, L.	Lindgren, L.	Stow Hill, L.
Delacourt-Smith, L.	Llewelyn-Davies of Hastoe, Bs. [Teller.]	Wells-Pestell, L.
Gaitskell, Bs.		White, Bs.

NOT-CONTENTS
Aberdare, L.	Davidson, V.	Mowbray and Stourton, L.
Aldenham, L.	Denham, L. [Teller.]	O'Neill of the Maine, L.
Amherst of Hackney, L.	Digby, L.	Rankeillour, L.
Balerno, L.	Drumalbyn, L.	Ruthven of Freeland, Ly.
Balfour, E.	Elliot of Harwood, Bs.	St. Aldwyn, E.
Belhaven and Stenton, L.	Emmet of Amberley, Bs.	St. Just, L.
Belstead, L.	Exeter, M.	St. Oswald, L.
Berkeley, Bs.	Falkland, V.	Sandford, L.
Bolton, L.	Ferrers, E.	Sandys, L.
Boston, L.	Ferrier, L.	Selkirk, E.
Brabazon of Tara, L.	Goschen, V. [Teller.]	Sempill, Ly.
Bradford, E.	Gowrie, E.	Shaftesbury, E.
Brooke of Cumnor, L.	Gray, L.	Sinclair of Cleeve, L.
Brooke of Ystradfellte, Bs.	Greenway, L.	Skelmersdale, L.
Burton, L.	Gridley, L.	Somers, L.
Colyton, L.	Hailsham of Saint Marylebone, L. (L. Chancellor.)	Tweedsmuir of Belhelvie, Bs.
Conesford, L.		Vivian, L.
Cranbrook, E.	Hatherton, L.	Wakefield of Kendal, L.
Cromartie, E.	Hood, V.	Ward of Witley, V.
Cullen of Ashbourne, L.	Ilford, L.	Windlesham, L.
Daventry, V.	Kemsley, V.

Resolved in the negative, and Amendment disagreed to accordingly.

The noble Lord said: My Lords, I shall not detain the House more than a moment or two in moving this Amendment, with the same manuscript alteration that has already been referred to in respect of the previous Amendment. I should like to take the opportunity to make two points only. I think the noble Lord, Lord Drumalbyn, has failed to understand, despite previous examples, what is meant by "point of entry". May I illustrate it to him? If I were a film producer and I wanted to engage him as my leading actor because I wanted someone who was persuasive, reasonable and sweet in his representations, I could go to Equity and show to Equity that there was no-one who could fill that part so well as the noble Lord. I have no doubt that in that case I should obtain Equity's agreement to give him a card at that moment. That is what is meant by "point of entry". I do not think that there is any doubt about that. Film producers, theatrical managers and others will testify that that is how it works.

The second point is that the noble Lord referred to qualifications; for example, obtaining a top level diploma from RADA. But there are many other schools of dramatic art. If gaining a top-level diploma from these schools were to be accepted as a qualification for entry, then the theatrical, cinematographic and television area of employment would be flooded with so many thousands of applications that there would be absolute chaos in the industry and Actors' Equity would be unable to maintain the standards which are accepted mutually by employers and employees at the present time. I make only these two points. I beg to move.

LORD DRUMALBYN

My Lords, I take note of what the noble Lord, Lord Archibald, has said. I think I had fully taken on board earlier what he had said, and I am still of the opinion that what he wants can be accommodated without the pre-entry closed shop agreement.

On Question, Amendment negatived.