§ 2.58 p.m.
§ LORD DRUMALBYN
My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
§ Moved, That the House do again resolve itself into Committee.—(Lord Drumalbyn.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [THE EARL OF LISTOWEL in the Chair.]
§ Clause 3 [Approval by Parliament of code of practice and revisions of code]:
§ LORD DIAMOND
I beg to move Amendment No. 16 standing on the Order Paper in the name of Lord Champion and myself:Page 2, line 36, after ("Parliament") insert ("proposals for a draft code of practice in 12 order to debate and amend the principles to be embodied in").It is a happy occasion that we should be starting this week's Business on this Bill with this particular Amendment, because we are now dealing with a clause which proposes the setting up of a code of practice. This is something which, in principle we all seem to desire. We are dealing with a matter of detail arising out of that clause which I think is desired by all sides of this Committee, certainly by all sides of the House in another place, and one to which expression has been given by the Government.
Perhaps it would be convenient to start by referring your Lordships to what the Solicitor General said in considering this point on January 27. He said (referring to the Secretary of State in charge of the Bill for the Government):My right honourable friend has made clear, and asks me again to make clear, that consultation about the code will be wide-ranging and thorough, and that ample time will be allowed for that consultation to take account of the views expressed by honourable Members of the House and of the other place.We could not ask for a clearer expression of an acceptable viewpoint by the Solicitor General, speaking on behalf of the most responsible Minister of the Government so far as this Bill is concerned. I am sure your Lordships will recognise that not the slighest discourtesy is intended to anybody at all if we take the view that so excellent is that expression of opinion that it should be embodied in the Statute, and therefore the Amendment proposes that there should be the opportunity—and I quote the words of the Solicitor General again:For that consultation to take account of the views expressed by honourable Members of the House and of the other place.Your Lordships will be more fully aware than I am of the limitations of the present method of consultation as proposed in the Bill; a method under which a detailed code, which may run into many paragraphs and will undoubtedly touch on a number of issues of great importance dealing with human relationships and industrial relations, will be put before your Lordships' House and explained in full detail. No doubt your Lordships will have views on each paragraph. but under the Bill as it stands you will be entitled to vote for or against the whole code, and nothing, but the whole code.
13 I am suggesting that that is a totally inappropriate and inadequate method of expressing your Lordships' views and of taking advantage of the great experience available from both sides of the Committee. The only way to give an opportunity for thorough consultation and for carrying out the desires of the Secretary of State and the Solicitor General is for there to be ample opportunity for consideration, a full debate, in which opposing views may be expressed so that the truth may thereby emerge. That is the purpose of the Amendment.
May I read subsection (1) as it is proposed to amend it?The Secretary of State shall, before the end of a period of one yearet cetera,lay before both Houses of Parliament proposals for a draft code of practice in order to debate and amend the principles to be embodied in a draft of the code of practice prepared by him under section 2(1) …".What the Secretary of State has to prepare is called a draft code of practice. If I wish to suggest, as indeed I do, that there should be a document in advance of that, so that it may be debated in detail, I have to refer to something other than a draft code of practice. Therefore the Amendment refers to proposals that should be put before your Lordships' House so that there may be full consultation and a debate. This, I repeat, is the best way we have been able to think of to achieve the desire expressed by the Solicitor General and the Secretary of State. I hope it will meet with the approval of the Government and the Committee.
§ LORD SHINWELL
At this stage I venture to pose a question, and the nature of the subsequent debate will depend on the answer given by the noble Lord, Lord Drumalbyn. I wish to ascertain whether the submission of a draft code of practice to the other place will be in the form of "Take it or leave it ", without any prospect of amendment? No doubt there will be an opportunity for debate; but, as I understand it, the draft code cannot be amended in the other place. The prerequisite feature of the full implementation of the Government's policy depends, in my submission, on co-operation which should begin in both Houses, or at any rate in the other place to start with, to obtain the views of honourable Members. 14 I understand that this is merely a draft code; it is not intended to be the ultimate word on the subject. In my submission it should take the form—as is the customary procedure, adopted by several Governments in past years and accepted by the present Government—of submitting a White Paper to both Houses in order to ascertain the general point of view, to "collect the voices". This is a desirable method of injecting co-operation. The purpose of my question is to ascertain the view of the noble Lord on this matter, and on his answer will depend the nature of the subsequent debate.
§ LORD DRUMALBYN
What the noble Lord, Lord Shinwell, has suggested seems eminently reasonable; but I think we should carefully consider what the procedure is to be, so that there may be no misunderstanding. First, the consultative draft will be published. At that point there is publication and there can be representations about it and consultations. Anyone may make representations; it will be open to any Member of your Lordships' House or the other place, or any group of Members to make representations. Once that has been done, my right honourable friend will seek to achieve the greatest consensus; and as the Bill is now drafted he will put the draft before Parliament, which would be a perfectly normal thing to do.
The noble Lord, Lord Shinwell, asks whether this could not be put forward in the first place as a White Paper, before the draft is actually made. I take it that he means a Paper which would have a brief introduction followed by the code. No doubt the code would have been amended already in the light of representations made. Or, at any rate, there would be an opportunity to amend it. It might be so perfect that it would need no amendment; but perhaps that is asking too much—even of this Government. The noble Lord, asks, will this be done? I am not in a position to commit another place about what it will ask to be done in respect of the draft code, or indeed of the consultative document. They may want to have a debate on it; they may then want to make representations.
§ LORD SHINWELL
I am sorry to interrupt the noble Lord, but when he speaks' about "representations" what does that mean? Does it mean that when 15 the draft code is submitted in another place, and perhaps in your Lordships' House, it will be subject to any amendment, and possibly a vote taken on any of the items?
§ 3.10 p.m.
§ LORD DRUMALBYN
No, my Lords. I understand that what the noble Lord, Lord Shinwell, is suggesting is a White Paper before the draft is actually submitted to Parliament for approval. I am saying that it will be open to the House, at an earlier stage on the consultative document, to debate it then. We have had this rather unusual proposal. I am sure the noble Lord recognises that for many years it has been unusual to amend draft Orders in either House—I believe that there is one noteworthy exception. But what the noble Lord is now asking for, as I understand it, is that the principles of the code, and only the principles, should be amendable when proposals embodying what the Secretary of State hopes to put into the draft are laid before Parliament. It would be extremely unusual to take a White Paper or anything of that kind—because that is what the proposals would be; the noble Lord can call it a White Paper—and go through it line by line, or even those parts which relate to the principles, and amend them. The ordinary course surely is to take proposals of that kind as a whole and debate them.
What I am saying is that I am not authorised to commit this House or another House to debating the draft proposals before they are laid before your Lordships and another place. Even if that were done, it would not be appropriate to go through the draft proposals line by line and amend them. The right course is in debate to indicate what you find to object to; and then, certainly where you have a draft, if the feeling is strong enough the House can say that it considers that the noble Lord, or the right honourable gentleman, as the case may be, should take the Order back and re-draft it and bring it forward again; and there can, of course, be a vote on that. That is what happens when the draft comes forward. All I am saying is that in the light of what will have taken place before it comes forward—there will have been representations, 16 there will have been consultation, there will have been full consideration by the Secretary of State of all this, in order to achieve the greatest consensus—it would be unreasonable, I think, at that stage, to depart from the usual procedure with a draft. I cannot, as I say, commit my noble friend or my right honourable friend to have a debate on the draft before it is laid, or on a White Paper. But what the noble Lord is here seeking to put into the Bill—namely, that proposals should be laid before Parliament for debating and amending—would be a most unusual procedure, and in the light of the consultation that is going to take place I am suggesting that that would not be justified.
§ LORD BURNTWOOD
I stand subject to correction, but in the matter put before the Committee by the noble Lord, Lord Shinwell, could we not get over the difficulty by using the device known as a Green Paper, which was used reasonably successfully only half a year ago in connection with the reform of the National Health Service?
§ LORD DRUMALBYN
Quite plainly, there are two features to this debate: first, that this House is asking for an opportunity to debate the proposals which are to be put into the draft before the Secretary of State actually lays them in the form of a draft. That is a common request, but it would be most unusual, and I think inappropriate, to put it in a Bill. Secondly, I am saying that it would be really unusual, to the point of being completely inappropriate, to provide new machinery by which such proposals should be actually amended by the House. That is really going too far in all the circumstances.
§ LORD SHINWELL
The noble Lord appears to misunderstand me. I did not suggest that the Government should present a White Paper. I used that as an illustration. It has been customary to choose a White Paper for the purpose of collecting the voices, and subsequently the Government have made up their mind on the items of legislation about which they were concerned. What I suggest is that when the draft code of practice is submitted it should take the form of a White Paper, and it should be subject not only to discussion but to possible amendment. As I understood the noble Lord— 17 he will correct me if I am wrong, but I think I am within the recollection of noble Lords—he said that subsequently, when the actual code of practice is submitted to the House (that is, following the draft code having been submitted), it could be subject to a Vote. Those were the words he used.
§ LORD DRUMALBYN
When the draft is put before Parliament for approval, it is quite possible for the House to withhold approval.
§ LORD SHINWELL
In other words, what he is saying is precisely what I suggested when I ventured to pose the question. What the Government are proposing is: "Take it or leave it. You can vote against it lout you cannot amend a single line, a single principle, embodied in the code of practice." There must be general agreement in your Lordships' House, whatever views are held about the proposed legislation, that the code of practice is of fundamental and vital importance, because the code of practice will govern the practice associated with the legislation, not the theory of legislation. It governs what is to happen on the shop floor, the relations between the trade union movement and the employers' associations, and the relations between both these organisations and the Government? I am surprised at the attitude of the noble Lord, because he ventured to say, almost apologetically, that he could not answer for what was actually going to happen; he merely had some idea, some notion, some suspicion about it, but as to any actual knowledge he had which would enable him to inform your Lordships' House on this very important matter, he was somewhat doubtful. There was something dubious in what he said.
§ LORD DRUMALBYN
Would the noble Lord forgive me? I think I may not have made myself quite clear on this, but the point on which I could not answer was whether there would be a debate on the consultative document when it came forward. When the consultative document comes forward it will be published, and I take it that if the House wants that debated and insists on its being debated, it can be debated. That is the point I was making. Then the consultative document will be fully examined and discussed all over the country 18 and any of your Lordships can make representations about it. All we are now discussing is whether between that consultative document and the draft there should be a further opportunity, in the form of proposals or a White Paper or whatever else you may call it, for the House to consider before the draft code of practice is laid before the House for approval.
§ LORD SHINWELL
Obviously I recognise that the noble Lord is anxious to inform the House about what is in his mind, but may I take the matter in chronological order? A draft code of practice is to be submitted in the other place. If it is submitted, it is expected, presumably, that honourable Members and right honourable gentlemen will wish to have something to say about it. The Government will hear what they have to say and will promise to take note of what has been said. But no honourable Member or right honourable gentleman can move an amendment: he can make suggestions, but that is all. The Government can ignore those. The next point is that they submit what is called the draft code. That can be debated and a vote taken on it, but no amendment may be moved and accepted. The noble Lord takes refuge in the normal practice of both Houses of an Affirmative Resolution. Such a Resolution can be submitted to both Houses of Parliament but is not subject to Amendment. Sometimes this has given rise to a great deal of misunderstanding and difficulty; it has been regarded as a device by a Government to obstruct, and usually they have succeeded in their efforts of obstruction.
The next point, in chronological order, is that the draft code is to be submitted to the Commission. Perhaps the noble Lord has not read the Bill. The subsequent subsection says that the Secretary of Stateshall submit a copy of the draft to the Commission for their consideration and advice.This is the next step. It is to be submitted to this somewhat amorphous body, about whose functions we have no clear idea. Why not submit it to honourable Members of another place for their consideration and advice, and allow them to express their views about it, and let the Government promise to take note and act accordingly?
19 Finally, unless we are satisfied about this, then I shall have grave doubts about the Government's intentions. I say that in all sincerity. I do not attribute any malice to the Government in this legislation. They believe that they are doing the right thing. But may I paraphrase a statement made many years ago by a notable politician, Lord Milner—not the present noble Lord, Lord Milner of Leeds, but the Lord Milner who was associated with the Boer War and the Liberal Governments of 1906 and 1910? He said, "If a Government produces legislation which in the opinion of the Opposition is bad, it is the duty of the Opposition to prevent it and we are going to prevent it, and damn the consequences". That is not what I am saying; that is what Lord Milner said. I think that we are entitled to protest, because protest is the only remedy we have to try to bring some kind of—not pressure, but persuasion, upon the Government to do the right thing. Unless we can be assured that here is an opportunity for co-operation and perhaps conciliation, which can pave the way, if the Government like, to the implementation of this legislation—though some of it is very disagreeable to the trade union movement and even to some of the employers organisations; unless the Government seize this opportunity to take a path to co-operation, then in my opinion this is a path to further industrial turbulence.
§ LORD BYERS
Without wishing to argue the merits of this Amendment—and I can see grave technical difficulties in accepting it—I feel that the noble Lord, Lord Drumalbyn, has not done justice to his own case by giving no assurance that this code of practice can be debated. Surely it is inconceivable that if any noble Lord wishes to debate it anybody will stop him. This House runs its own business and I am sure that it is the least of our worries that we shall not be able to debate this.
§ LORD DRUMALBYN
The only reason why I did not give an assurance is because it is not a matter for me but for my noble friend the Leader of the House, in conjunction with the usual channels, if there is a demand for a debate. I cannot give an assurance on 20 this as the question has not really been presented.
§ LORD BYERS
This is what I mean. The noble Lord is not helping his case. We could put down a Motion on the Liberal day, or the Opposition could put down a Motion. There is no difficulty about that. I think that the noble Lord is creating the difficulty.
§ LORD DRUMALBYN
I am being asked to provide a day without any further action at all. We are now being asked: "Will there be a debate?" and I am saying that this is a matter for the noble Lord and other noble Lords and the House.
May I just clear up one or two points which the noble Lord, Lord Shinwell, has made? It is not in the Bill, but my right honourable friend has given an assurance that this code in draft form will be published first as a consultative document. When that is done there will be the greatest possible opportunity for discussion, consultation and the like, with the object of getting the maximum agreement. In the course of that, it will be possible for Members of your Lordships' House and of another place to make representations and get the maximum agreement. What noble Lords are now asking is that another process shall be interposed at which that maximum agreement can be amended, in principle at any rate. Of all things I should have thought that this was just what is undesirable. There will be the maximum consultation and agreement. We hope very much that we shall get considerable agreement on this. Now noble Lords are asking that that agreement should be open to amendment by another place and by this House.
May I say to the noble Lord, Lord Shinwell, that if he looks carefully at subsection (3), he will see that it is only on the revision of the code that there is a duty to submit a copy to the Commission for their consideration and advice. When the original consultative document—the code in draft, or the consultative code—is produced, the Commission will obviously be asked, together with many other bodies, including the industrial society, for their comments. I really think it is quite unnecessary to have an entirely extraneous and additional procedure, which is at variance with the normal procedure of your Lordships' House.
§ LORD BERNSTEIN
Perhaps the noble Lord can help me. From my reading of the Bill, I understand that an infringement of the code of practice could lead to the courts. It is said that anybody can make representation on this code. If I throw my mind back to Lord Milner, I remember that Lord Milner, a great man, made representations to the Tsar of Russia—and with what result! How can we expect people in all equity to agree unseen to a code of practice which leads to the courts, without knowing what is in it? That seems to me unreasonable and slightly improper.
§ 3.29 p.m.
§ LORD PLATT
I did not intend to say anything on this Amendment but I am really alarmed about this discussion. On Thursday, when I spoke, it seemed to me that the whole of the Bill applied to the trade unions, but in many places I doubted its relevance to the professions. Surely it is precisely in the terms of the code of practice that these differences, if they have any substance—which I believe they have—will come out and become important. The idea of giving an assenting or negative vote to the whole code, without a full opportunity to say why, is one with which I disagree. I am in favour of this Amendment, I think that this is a splendid idea and I wholeheartedly support it, because I think that certain clauses should not apply to my particular profession, which is an important profession, because this is precisely the position I shall be put into, as I understand the Minister's replies to the questions which have been raised. I admit that my knowledge of Parliamentary procedure is not profound, and my fears may be unfounded; but to me it has an alarming phase.
§ LORD LEATHERLAND
Those of us who have earned our living by writing words sometimes find great difficulty in trying to interpret them when we see them on paper. There is an expression in this clause, "draft code of practice". I want to establish that the draft code of practice is really the final definitive code of practice. We cannot amend it; we have to take it or leave it. I move back to the original stage which the noble Lord, Lord Drumalbyn, mentioned, the stage of the consultative document. That consultative document, he said, will be widely 22 circulated. It will go to the C.B.I., the T.U.C., the Ballet Dancers' Association, the National Association of Dolls' Eyes Manufacturers, to the plumbers trade union. Whom will it not go to? It will not go to one of the Houses of this Legislature, a vital part of the constitution, the House of Commons, and it will not go to the other vital part of the Constitution, your Lordships' House. I know it can be said that individual noble Lords may privately, in the course of a furtive letter, make suggestions about whether they think this or that particular clause in the code of practice is good or bad. That is quite different from the Houses of Parliament. They must have this opportunity of considering the proposals of the code. The procedure here seems to savour far too much of Signor Mussolini's corporate state, and not that of the constitutional Parliamentary democracy of Britain.
§ LORD COOPER OF STOCKTON HEATH
This procedure, as explained, is a very disturbing one. Memories are short. The greatest complaint the T.U.C. had against the Government's original proposals was the manner in which they were put out, in a so-called consultative paper, and the T.U.C. were given about six weeks in which to submit comments. Their first complaint was that this period of time for such an important Bill was completely inadequate, and many of us are more and more becoming convinced, as has been said, that words are taking on a new meaning. The concept of consultation is taking upon itself a new meaning, and although I am putting a trade union view, I too, feel that this is a most serious situation. First of all you put out a draft of what you are thinking of doing, then you gather evidence and get a consensus, but neither House of Parliament has the opportunity of consultation—they can make their submission, but they cannot amend or vary any of the many proposals, I think about 20, in this new code of fair practice. As has been said, the trade unions are aware that the violation of these codes, especially if a trade union is not registered, can be a most serious matter for them, and I hope Parliament will have the chance of looking at the proposals contained in the practice code and have the opportunity of amending or rejecting some of them.
§ LORD TAYLOR OF MANSFIELD
Many of the points which have been raised in earlier speeches are very important and very serious, and we should not pass over them lightly or in a hurry. This is the first time—at any rate within my knowledge, and I am open to be corrected—that a legal code of practice in industrial relations has been proposed. Because of that this is a very serious matter.
I have read the debates on this Clause 3 and the Amendments which were made in another place, and they regarded the matter with such seriousness that on both sides of the Committee there were apprehensions and perturbations, and much pressure was applied to the Solicitor General to make this matter as clear and as understandable as possible. In the light of what the Solicitor General said on January 27 in another place—which I will quote in a moment if I am permitted—I do not think that the noble Lord, Lord Drumalbyn, has been quite as clear or as forthcoming as his right honourable friend was. Although this is not what the Clause says, do I understand now that the position is that before a draft code, before an affirmative resolution is laid before both Houses of Parliament, there will be published what the noble Lord refers to as a consultative document? The Clause does not say that at all, and what we are dependent upon is the intention and the good will of pronouncements that there will be this consultative document.
The Solicitor General in another place was very much seized with this, and he was referring, in reply to a question put by one of his honourable friends, to what we now know as the consultative document that will be published before the code of practice, and this is what he said, and I would like to know if the noble Lord agrees with this:When the matter is debated here or in the other place, as my honourable and learned Friend the Member for Darwen (Mr. Fletcher-Cooke) pointed out"—no dubiety, no ambiguity here—it can he taken back for reconsideration if any substantial points are put which would justify that action,"—[OFFICIAL REPORT, Commons, 27/1/71, col. 576.]All I want to know, and what my noble friends wish to know, is whether we shall be able to debate this document, and be 24 able to amend it, in the hope that the Secretary of State will take note of what is in the minds of noble Lords here, and be so impressed that he will take it back and have another look at it before the code of practice is submitted to both Houses—where it cannot be amended but only voted on. Could the noble Lord give us some clarification and guidance on that point, the consultative document as against the draft code which is mentioned in the clause.
§ BARONESS BACON
The noble Lord is quite right when he says that usually Orders in Council have to be taken as a whole and either approved or disapproved, but surely the difficulty here is that an important part of this Bill is really the code of practice, and had this code of practice been put as a Schedule to this Bill it would have been possible for both Houses to consider it in detail and amend it. The difficulty is that this code of practice is being regarded as an Order, in the way in which the noble Lord has stated. Could not the noble Lord take this back and devise some way of bringing this before both Houses of Parliament, so that it could he debated and, if necessary, amended, even though perhaps it was not in the form of an Order in Council, as is the usual practice. This is an important point, and one on which the whole of the Bill really hangs.
§ LORD DAVIES OF LEEK
I think my noble friend has made a constructive point. Would it not be possible for the noble Lord to have this included in a Schedule? I remember distinctly the Government saying during the propaganda period about this Bill that there were pillars of wisdom in the Bill which were not negotiable. Is the code of practice one of the mighty pillars of wisdom? All we are asking is for the right of Parliament, as such, including both Houses, to amend and debate the principles. I cannot see why this democratic resolution cannot be accepted. It is part of the principles of the British way of life.
I hope that the noble Lord will get some information on this. I sympathise with the noble Lord—I do not say that in a condescending way—because I know the difficulties that Ministers in this House have. They are provided with briefs, they have a whole range of duties upon them, and often they get a brief and 25 there is too little time to consider fundamental questions. I would therefore ask the noble Lord this direct question. Has the noble Lord had an opportunity of discussing this important Amendment with the Government to see what possibility there is of conceding this constructive point. If I spoke any longer I should only be reiterating what has already been said, but I appeal in the name of our democratic system, and I think of common sense, that we should include this Amendment in the Bill.
I wonder if the Opposition know what they are really asking for when they ask to have the code of practice put into the Bill either as a schedule or in any other way. It seems to me that codes of practice, whether they are Highway Codes, Countryside Codes or whatever, are going to be things that we use increasingly. If you have a code of practice like this, it seems to me that it should be something outside the Act of Parliament, and something to be amended according to practice as it develops. If you adopt the idea of putting a code of practice as a Schedule to a Bill, or as part of a Bill, you are going to tie yourself down more rigorously than it seems to me you would be doing if you left the code of practice as something outside the Bill.
§ BARONESS GAITSKELL
My noble friend Lord Davies of Leek asked if the code of practice was going to be a pillar of wisdom, or was a pillar of wisdom. Having listened to the debate this afternoon on the code of practice, for me it has a kind of Alice in Wonderland quality. If noble Lords will think of Alice with the Cheshire Cat, and he way the Cheshire Cat faded out and only the grin was left, your Lordships will appreciate why it seems to me that this is exactly what has happened this afternoon in debate. We seem to see it at one moment, and then it fades out, as in Alice in Wonderland, and now we only have the grin left.
§ LORD ROBBINS
I am only moved to ask the noble Lord, who suffers many grievous tribulations, whether in addresing his illustrations to the Committee he will put in the centre of his thought an answer to the question which was posed 26 by the noble Lord, Lord Byers: will this House have an opportunity of discussing this code before it becomes the subject of a Yes or No vote?
§ 3.44 p.m.
§ LORD DRUMALBYN
If I can answer that question straight away, I would say that this is in the hands of the House. I think perhaps in the light of past history—the noble Lord, Lord Cooper, has rather brought this home to me—I might have used a different expression from "consultative draft". It is really a preliminary draft. It is common practice for outside bodies to be consulted in the preparation of a draft that is going to be laid before Parliament. This will be done on a very wide scale indeed; and there will be no hurry about it. I should like to quote what my right honourable friend said in another place in response to a question on the code of industrial relations practice. He saidI assure my honourable friend that there will be months for consultation. The timetable I have in mind is that it should finally be put in the House towards the end of the year. That will give many months for consultation."—[OFFICIAL REPORT, Commons; 29/4/70, col. 691.]Again and again my right honourable friend has gone out of his way to say how anxious he is that all bodies concerned with the code—or, if I may put it for the noble Lord, Lord Platt, in another way, those to whom the preliminary draft gives cause for concern—will be very welcome indeed to make their representations and, if they so wish, to have consultations. Surely very little more could be said than this.
I cannot give way on this particular Amendment, partly because I do not think the Amendment itself, as it stands, is viable, but partly, in any case, because it would represent a departure from our normal practices. I think the Committee should take into consideration what I have said on this: the fullest consultation; the opportunity to debate on the preliminary document; the formation of the document itself; its laying before Parliament, and the fullest possible opportunity for Parliament to debate it. And, of course, if Parliament were able to convince my right honourable friend, or if either House was convinced, that changes ought to be made—and not only 27 in the principle—then I have no doubt that my right honourable friend would withdraw the code and relay it. This is the usual procedure.
Perhaps I should also say that when we come to Clause 4 we shall deal with the point raised by the noble Lord, Lord Bernstein, as to its being a legal code of practice. Of course it is legal in the sense that the Bill provides for it; but when we come to Clause 4 we shall then see that it is not legal in the sense that anybody can be hauled before the Court for having offended against the provisions of the code by themselves.
§ LORD ROYLE
In relation to the latest speech the noble Lord has made, I am getting more and more encouraged, not discouraged. It seems to me that we are going on talking about this Bill quite up to the Summer Recess, whenever that may be, and then a little later; in due course, after the passing of the Act, we shall have a code of practice within twelve months, and then there will be months of consultation with all kinds of people. It seems to me that we might possibly see the Bill fully effective by the end of 1972. If by that time we are getting anywhere near a General Election, the encouragement for me is that this Bill in full implementation will never see the light of day.
§ LORD BERNSTEIN
I thank the noble Lord, Lord Drumalbyn, for his answer. I think that when we get involved in dealing with the code of practice—on either side—it will tax the limits of any good lawyer. In another place, the Solicitor General said that the code of practice:is to be laid before each House. It requires debate on an Affirmative Resolution but it is not amendable."—[OFFICIAL REPORT, Commons, 27/1/71, col. 574.]I am still in the dark about whether we can amend the code of practice before it becomes law.
§ LORD ARCHIBALD
May I follow the question asked by my noble friend? I may be stupid, but I am getting more and more confused. It would appear from Lord Drumalbyn's answer that when the preliminary draft is produced it will be discussed with many organisations and 28 people outside both Houses of Parliament. Yet, when it is finally agreed with those organisations which are consulted, it will be laid before Parliament in an unamendable form, to which we can say either yea or nay. The T.U.C., the C.B.I. and other people may be consulted and have the opportunity of discussing the code, but the two Houses of Parliament will have no opportunity of discussing it other than saying yea or nay. Is that the position?
§ THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE)
My noble friend actually said the opposite. It could not be put more neatly in the reverse sense of what he said. What he said was that when the preliminary draft was laid before outside bodies it would rest with each House of Parliament, and in particular this one, to say whether they should debate it at that stage or not. Presumably if a noble Lord wanted to raise a debate about it that could be done, here or in another place. My noble friend said that the preliminary draft would rest before either House of Parliament, or both.
§ 3.53 p.m.
§ LORD DIAMOND
We are all most grateful to the noble and learned Lord, the Lord Chancellor, who normally sits on the Woolsack, for having made clear precisely what we are not talking about. What we are not talking about is the opportunity to debate and say "Yes" or "No" by voting in one Lobby or the other. What we are saying, and what six members on the Government side in another place intervened to say (I am not using their exact words, but am putting it in my words, and I will use very plain words, having regard to what the noble and learned Lord has just said) is that it was an insult to both Houses of Parliament that there should be no regard paid to consultation on a matter of such wide-ranging importance as the code of practice. Everyone has made clear that this code is fundamental to this Bill—and, indeed, it might well be justified without any Bill, if one really intended to improve industrial relations. This has been made clear by the right reverend Prelate the Bishop of Durham, in a most moving speech, and also in speeches by noble Lords on the Cross-Benches and by many others who sit behind me. What we are concerned about is the fact that 29 the Government, in this Bill, have acted in a totally unreasonable way in refusing consultation, or in paying no regard to consultation, and certainly in paying no attention to the arguments that have been put forward.
I do not know the view of noble Lords who sit behind the noble Lord, Lord Drumalbyn; I know only the view as represented by Conservative Members in another place. They are just as anxious as we are. I am twice as anxious as I was before Lord Drumalbyn spoke, for two reasons. First, because he seems to have gone back somewhat on the undertaking, although he cannot go back on it, by the Solicitor General; and, secondly, because his speech was such a throwing of dust in our eyes as I never expected from anyone not expert in such a Gilbertian activity.
I shall say why I make that claim. Every one of us has come to respect the proceedings of both Houses, because we know that within those proceedings we can do whatever we want and whatever is reasonable and right. There are procedures for doing everything. The noble Lord, Lord Drumalbyn, said, "We"—the Government—"have picked a certain procedure. That procedure allows only of the answer yes or no. Therefore would it not be unreasonable to go on in that procedure and ask for more than yes or no?" Of course it would, but why pick that procedure when there are so many other procedures open to the Government?
If I may draw on my experience over the Finance Bill, for example, as every noble Lord knows, there are the provisions in the main body of the Bill which are the main provisions. Then there are Schedules galore giving the detail, which gives a good deal of the life to the provisions themselves. Then, outside the Bill, one may have completely detailed administrative arrangements which may be subject to an Affirmative or a Negative Resolution. That is for Parliament to decide.
The Government are suggesting that this is the best procedure for dealing with a very important matter which is incorporated in this Bill, that we are going through Clause by Clause and line by line so as to secure Amendments—the Government should not say that no Amendments are necessary—and that 30 finally we can reach a stage in which we can take it yes or no because very shortly—more shortly if Lord Drumalbyn's answer had been in the slightest degree a satisfactory one—we shall be getting on to Clause 5. Then the Government themselves will be introducing the largest Amendment on the Notice Paper. So it is not for the Government to say that they have all the wisdom and that it is ever necessary for a Government to come before Parliament, having considered matters, and to say to Parliament "We would like your views as well as ours".
It is quite intolerable for the noble Lord to take the view that they should know so much about all the views of all the Members of both Houses that it is not necessary to have a debate and a discussion, and the possibility of amendments, when it comes to this most important part of our proceedings, the code of practice. I am saying, as the noble Lord, Lord Platt, said, and as is in everyone's mind, unfortunately we do not know what on earth we are talking about. It may be said that that is something in my normal practice. Maybe that is an appropriate reply, but we do not know what we are talking about because the code of practice is not before us.
One noble Lord has suggested that it will have 20 principles. I should have thought it might have very many more. I do not know, but what we do know is that it is of enormous importance to all engaged in the Houses of Parliament, and that all these matters and opinions do not simply fall Party-wise. For example, there are many provisions in this Bill where the Government are on one side and where on the other side are joined together employers and trade unions, such as several of the closed shop provisions.
I hope that I have said enough to demonstrate that it is absurd to pretend that the code of practice is of such minimal importance, such simplicity, that the Government, after consultation with outside bodies, and listening to what they say, can come before Parliament and put the matter to Parliament on a simple "yes or no" basis. I should have thought that the Government would be the first to say that that is not treating either House of Parliament with the respect which it ought to receive; it is not giving Members, who are responsible for their 31 constituents in one place, and noble Lords, who have vast experience in this field in another place, the opportunity to make their contribution to what should be a much improved code of practice after the Government have had an opportunity of considering it.
I had not thought for one second that this would be an Amendment on which I should be put in the position of seeking to divide your Lordships' House. I had assumed that the noble Lord would say that he recognised the pressure in the other place by his own side as well as by our side; that he recognised the force of what the Secretary of State and the Solicitor General said, and that he recognised that there are many procedures by which this could be both discussed and amended, as my Amendment says. One suggestion is putting it as a Schedule to a Bill; that is a very simple suggestion and is standard practice. There are other ways in which it could be done. What I am suggesting to your Lordships—
§ LORD DIAMOND
May I finish my sentence? What I am suggesting is that it is totally inadequate that it should be done in a way in which important parts of the code of practice should have to be accepted with other parts, irrespective of the fact that we may approve of some part and, as a House, disapprove of some other parts.
I am in this difficulty. If the matter is debated in such a way, not that you accepted or rejected the general principles, but that you amended them, you would be amending something which became part of legislation. Then you would defeat the object of Clause 4, because you make what you have amended something on which a man can be sued. The beauty of the code of practice is that it is a general principle which can be observed and called into question, as is suggested under Clause 4, but it is not something on which a man can be sued.
§ LORD DIAMOND
The noble Lord, Lord Henley, if he will forgive me for saying so, is neither under a difficulty on the point he has just raised, nor is he under any difficulty on the point he raised 32 previously. On the point he just raised no different legal status need necessarily be given to this code because it is a code on which Parliament has a chance to approve it in parts instead of in totality.
As to the other point, no difference in the feasibility of varying the code is in the slightest degree affected by what we are proposing. I recognse that he was put in the odd position of proposing an autocratic procedure which is totally at variance with his Liberal attitudes. He was put in the awkward position of proposing an autocratic procedure because he thought that otherwise we should get a code of practice which could not be amended. I am suggesting that it can be amended precisely as it is proposed to be amended in the Bill, whether either House of Parliament have a capacity to deal with it in detail or in total. There is no earthly reason why Parliament—
I must interrupt the noble Lord. I will read carefully what he has said because I am not quite sure that I agree that he has the point right, or that he has answered it correctly. I hope he will withdraw his most unfair suggestion that I was in no difficulty here at all, but was merely making a debating point. I am in a difficulty here and I think I have a valid point.
§ LORD DIAMOND
Of course the noble Lord thinks he has a valid point, and I should not dream of suggesting that the noble Lord does not think he has a valid point—
§ LORD DIAMOND
All I am saying is I do not think he has a valid point. I am not asking whether the noble Lord really believes what he says—of course I accept that he believes what he says. But he must not force me into the position of saying that I take the view that what he is saying is not accurate, and is not the case. I believe that we can deal with this Bill, as this Amendment suggests; discuss it responsibly and intelligently and amend any part which needs amending, leaving other parts which do not need amending, without causing any difficulty. It is because I feel that anything less than that would be treating 33 both Houses with scant respect that I ask the noble Lord whether he will reconsider this matter. If he does not like the exact wording of the Amendment he can suggest which other way it should be dealt with. If he wants to put it in as a schedule we will consider that. There are many methods of doing it. If he is not going to consider it at all, then this is a situation which neither House should accept.
§ 4.7 p.m.
§ LORD SHINWELL
I have no desire to prolong the debate unduly, but I must reply to the noble Lord, Lord Henley. He believes that he has presented a valid point because he made the statement that a man could not be sued in connection with the code of practice. How could he indulge in an assumption of that kind? Because he does not know what is going to be in the code of practice.
§ LORD SHINWELL
The noble and learned Lord need not indulge in these unseemly interruptions. I had a long acquaintance with the noble and learned Lord in the other place. There we had to put up with them sometimes, but there is no reason why we should have it here when we are a little less unseemly than they are in the other place, if I may say that. It does not matter what is in Clause 4. The actual terms of the code of practice are unknown to anybody but members of the Government; and I doubt whether they are fully aware of what is going to be presented when the time comes. Any noble Lord can challenge that. The noble Lord, Lord Henley, or the noble and learned Lord may indulge in another interruption.
§ LORD BYERS
Would the noble Lord accept another unseemly interruption? Clause 4 is very important from all our points of view. It says specifically—no matter what is in the code of practice—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 …
§ LORD SHINWELL
They can put in what they like in Clause 4. The consultative 34 document is to be presented and the code of practice is to be submitted to both Houses of Parliament. A decision will be taken by Parliament on every item contained in the code of practice. If any noble Lord, either a legal luminary or a layman, is going to tell me that once Parliament have given a decision on a matter of this sort it is not associated with legislation, then this is quite a new experience for me. It is all very well to come along with this Government smarm and say: "We do not intend to sue anybody under the code of practice". They do not tell you what the code of practice contains. We are completely in the dark about that, and my noble friend Lord Diamond was correct when he said that we are talking about something we know nothing about. I hope that not too much notice of that statement, not only that made by myself, but by other noble Lords, is taken by the Press as an illustration of our ignorance.
What is to be embodied in the code of practice? We do not know that, but we know that the code of practice, once the Government have engaged in consultation—and we accept that for what it is worth—becomes the decision of both Houses of Parliament, and it is the law. A man can be sued for contravening any item which is associated, even in a minor fashion, with what is embodied in the legislation.
I am bound to say that the attitude of the Government worries me a great deal. I had hoped all along, because of what was said when the Bill came to your Lordships' House, that the situation would be different. Do your Lordships remember what was said? It was stated in the other place, and illustrated in the Press, that the Bill was coming to your Lordships' House in the hope of improvement. We were to engage in discussion with the sole purpose of improving the Bill. So far there has been no sign of improvement, no evidence of any concession on the part of the Government—none whatever. They are as adamant now as they were when we began our deliberations a week ago. That is the position.
It is obvious that the Government do not want any co-operation. So what is to be the ultimate result of refusal to co-operate or grant some kind of concession? And what is it we are asking 35 for? We are making a request in the absence of knowledge about what is to be embodied in the code of practice—nobody here can say he has full knowledge of what is to be contained in the code of practice. We are asking that we should have an assurance (and there is no reason why we should divide on this Amendment if the Government are at all conciliatory) that the Government will consider this item in the clause and come back and tell us before the end of our deliberations whether they can say not only that there will be consultation with outside bodies but that both Houses of Parliament will have an opportunity—and they are entitled to such an opportunity in a matter of this sort—to seek to effect some changes in the code of practice. That is all we are asking for. We are not asking the Government to withdraw their legislation—not at all. We do not expect they will. We are asking for very little. Perhaps the noble Lord opposite would like to take counsel with his noble friends, and particularly with the noble and learned Lord sitting beside him—reclining in a very relaxed position, although he will no doubt awaken in due course if prompted. Perhaps the noble Lord would care to take counsel with him and come back to us later in the day, or before the end of the week, arid say, "On consideration, we will look at this matter again."
§ LORD DAVIES OF LEEK
I beg the noble Lord opposite to take note of that appeal. This will not delay, in fact it will expedite, getting this Bill through. I look at the sun shining on that talent opposite: there are skill, generations of culture, good breeding, education, ability and business acumen. I say that if I went to any of those distinguished noble Lords opposite with a "South Sea Bubble" deal like this and said that I wanted noble Lords opposite to put their money and their faith in me and my code of practice, without their board of directors having the ability to add or subtract or amend, but having just a general consensus of feeling, they would usher me away without a penny in my pockets. I know that the Sunday Times, on March 8, 1969, said that the trade unions to-day had more power than the Mediæval Church. They missed the point. The Mediæval Church cooked and 36 roasted people who did not agree with it. At least we are not asking to cook and roast the Government. We are asking the Government to look sympathetically at one of the most constructive Amendments that have been put forward so far in this Committee.
I think the main point, if one wants an explanation, is the statements which have been made that this code of practice is not going to render a person in breach of it liable for any offence. I do not understand that at all, and I am sure that many other noble Lords will find themselves in the same position. Either it is a code of practice which has to he observed or it is a directive which can be taken up by any individual or otherwise, according to his desire.
§ THE LORD CHANCELLOR
If the noble Lord will read Clause 4 again, he will see the answer to the problem which he is posing to the Committee. If he will then, having read it carefully, read Section 74 of the Road Traffic Act he will see the same answer, which has been on the Statute Book for forty years.
I am still not happy, in spite of the explanation given. We had Clause 4 read out a few minutes ago. It did not say categorically that this code need not be followed. What it said was that in certain circumstances it does not become an offence if one does not use the code. So far as I can see, either a code of practice is to be enforceable or anyone may use it according to his discretion. I am not sure, and perhaps many other noble Lords will want an explanation of this point.
The other point is that, if the code is enforceable, then surely an opportunity should be given to both Houses of Parliament—at any rate, to this House—to consider what is in the code, and to vary it in some way or another according to our own ideas. It should not be said, "Either you accept the code, which is enforceable in some way or another, or you turn down the whole code, no matter how many good parts there may be in it." It may very well be that the code is like the curate's egg which cannot be put right. That is really what is being said—either it is right or it is wrong. How can anyone be expected to accept something which has not yet been prepared 37 entirely, or to reject it entirely? Some way must be found whereby the code can be varied by Parliament. In all the circumstances, I think the Amendment is correct.
§ 4.18 p.m.
§ On Question, Whether the said Amendment (No. 16) shall be agreed to?
§ Their Lordships divided: Contents, 59; Not-Contents, 135.39
|Archibald, L.||Greenwood of Rossendale, L.||Royle, L.|
|Bacon, Bs.||Henderson, L.||Rusholme, L.|
|Balogh, L.||Hilton of Upton, L. [Teller.]||Sainsbury, L.|
|Bernstein, L.||Hoy, L.||St. Davids, V.|
|Beswick, L.||Jacques, L.||Samuel, V.|
|Blackburn, L.Bp.||Janner, L.||Segal, L.|
|Brockway, L.||Leatherland, L.||Serota, Bs.|
|Brown, L.||Leathers, V.||Shackleton, L.|
|Buckinghamshire, E.||Lee of Asheridge, Bs.||Shepherd, L.|
|Champion, L.||Lindgren, L.||Shinwell, L.|
|Cooper of Stockton Heath, L.||Llewelyn-Davies of Hastoe, Bs.||Slater, L.|
|Davies of Leek, L.||McLeavy, L.||Stamp, L.|
|Delacourt-Smith, L.||Moyle, L.||Stocks, Bs.|
|Diamond, L.||Noel-Buxton, L.||Stonham, L.|
|Donaldson of Kingsbridge, L.||Nunburnholme, L.||Stow Hill, L.|
|Douglass of Cleveland, L.||Pargiter, L.||Summerskill, Bs.|
|Faringdon, L.||Phillips, Bs. [Teller.]||Taylor of Mansfield, L.|
|Fiske, L.||Platt, L.||Wells-Pestell, L.|
|Gaitskell, Bs.||Plummer, Bs.||White, Bs.|
|Gardiner, L.||Popplewell, L.|
|Aberdare, L.||Eccles, V.||Lyell, L.|
|Ailwyn, L.||Effingham, E.||MacAndrew, L.|
|Albemarle, E.||Elliot of Harwood, Bs.||McCorquodale of Newton, L.|
|Alexander of Tunis, E.||Emmet of Amberley, Bs.||Mancroft, L.|
|Allerton, L.||Erroll of Hale, L.||Margardale, L.|
|Amherst, E.||Essex, E.||Meston, L.|
|Amory, V.||Ferrers, E.||Milverton, L.|
|Ashbourne, L.||Ferrier, L.||Monck, V.|
|Balerno, L.||Fisher, L.||Monckton of Brenchley, V.|
|Balfour, E.||Fortescue, E.||Mowbray and Stourton, L.|
|Barnby, L.||Fraser of Lonsdale, L.||Northchurch, Bs.|
|Beaumont of Whitley, L.||Gladwyn, L.||Nugent of Guildford, L.|
|Belstead, L.||Glasgow, E.||Penrhyn, L.|
|Berkeley, Bs.||Goschen, V. [Teller.]||Poltimore, L.|
|Bessborough, E.||Gowrie, E.||Radnor, E.|
|Blackford, L.||Grantchester, L.||Ranfurly, E.|
|Brabazon of Tara, L.||Gray, L.||Rankeillour, L.|
|Brooke of Cumnor, L.||Greenway, L.||Rathcavan, L.|
|Brooke of Ystradfellte, Bs.||Grenfell, L.||Rea, L.|
|Buchan, E.||Grimston of Westbury, L.||Redcliffe-Maud, L.|
|Burgh, L.||Hacking, L.||Reigate, L.|
|Byers, L.||Hailes, L.||Rennell, L.|
|Caccia, L.||Hailsham of Saint Marylebone L. (L. Chancellor.)||Rockley, L.|
|Chesham, L.||Rothes, E.|
|Clwyd, L.||Hankey, L.||Sackville, L.|
|Coleridge, L.||Hanworth, V.||St. Aldwyn, E.|
|Colgrain, L.||Hayter, L.||St. Helens, L.|
|Conesford, L.||Hemphill, L.||St. Just, L.|
|Cottesloe, L.||Henley, L.||St. Oswald, L.|
|Courtown, E.||Hives, L.||Sandford, L.|
|Cowley, E.||Hood, V.||Sandys, L.|
|Craigavon, V.||Howard of Glossop, L.||Savile, L.|
|Crathorne, L.||Howe, E.||Selkirk, E.|
|Crawshaw, L.||Hylton-Foster, Bs.||Shannon, E.|
|Cromartie, E.||Jellicoe, E. (L. Privy Seal.)||Somers, L.|
|Cullen of Ashbourne, L.||Jessel, L.||Stonehaven, V.|
|Daventry, V.||Kemsley, V.||Strang, L.|
|Denham, L. [Teller.]||Kilmany, L.||Strange of Knokin, Bs.|
|Derwent, L.||Lauderdale, E.||Stratheden and Campbell, L.|
|Drumalbyn, L.||Lothian, M.||Swaythling, L.|
|Dudley, E.||Loudoun, C.||Templemore, L.|
|Dundee, E.||Lucas of Chilworth, L.||Terrington, L.|
|Thomas, L.||Vivian, L.||Wise, L.|
|Tollemache, L.||Wakefield of Kendal, L.||Wolverton, L.|
|Tweedsmuir, L.||Willingdon, M.|
|Tweedsmuir of Belhelvie, Bs.||Windlesham, L.|
On Question, Amendment agreed to.
§ 4.29 p.m.
LORD CHAMPION moved Amendment No. 17:
Page 3, line 1, after ("shall") insert ("after consultation with the Trades Union Congress and the Confederation of British Industry.")
§ The noble Lord said: I moved an Amendment on Thursday last on Clause 2 of the Bill, seeking to ensure that the Secretary of State would agree upon a draft code of practice with the General Council of the T.U.C. and organisations of employers before presenting that draft code to Parliament. I then gave something of the history of the co-operation which had existed between the T.U.C. and the Government of the day over very many years, no matter what the political persuasion of the Government happened to be. I went on to point out that there had been a regrettable failure by this Government to secure that sort of cooperation in relation to the consultative document and this Industrial Relations Bill. That seemed to me to be, and still seems to me to be, a deplorable failure, because this Bill is about the most momentous for industrial relations since the Trade Disputes Act. Indeed, in many ways it is so much more far-reaching than even that Act that my description of it as being momentous is not putting it too high.
§ Despite the strained relations which exist between the Government and itself, the T.U.C. has committed itself in an authoritative document to admitting that the Government have a part to play in the process of providing information to guide trade unions and employers towards the adoption of good industrial relations procedures. The very fact that the Trades Union Congress has so committed itself seems to me to point clearly to the acceptance by that important body of some sort of code of practice. To the Amendment which I moved at some length I received the reply from the noble Lord, Lord Drumalbyn, agreeing with the noble Lord, Lord Tangley, that to put the word "agree" into the Bill at that point might be unconstitutional and that he would have to ask the Committee to reject it.40
He also said, using the words of the Secretary of State:
I can give an unqualified assurance that I shall be taking the initiative in seeking discussions and views about the formulation of this code of practice".
He later added, in his own words, speaking of agreement:
We hope that it will be obtained, and I am sure it will be substantially obtained, because the Secretary of State would be very unwise to bring a code of practice before Parliament with which there was not substantial agreement."—[OFFICIAL REPORT, 29/4/71; col. 1382.]
§ On that undertaking, and the fact that I felt that to insert the word "agree" at that point in the Bill might indeed be unconstitutional, I had little hesitation about withdrawing the Amendment. This Amendment is a milder one altogether and relates to consultation at a subsequent revision of the original code of practice. We must be clear about that. It deals with a subsequent revision and not the initial steps leading up to a code of practice which caused so much discussion on the Amendment upon which we have just voted. I regard the revision of the code of practice as being an important stage, possibly the most important stage, because it will take place in the light of the experience that has been gained of the working of the code of practice. The trade unions, the employers, the Government and everyone will be expected to owe obedience to the code of practice. It is inevitable that some time after that certain faults will show themselves, and will have to be amended at that stage. I think there cannot be the slightest objection to the inclusion of the words I am now proposing, either on constitutional grounds or on the grounds of Government intentions. These intentions of the Government in relation to the Trades Union Congress and to consultation have been made clear by the words of the Secretary of State and by the noble Lord, Lord Drumalbyn, himself.
§ It might be asked why we should include these words when such a clear undertaking has been given by Ministers on behalf of the Government of the day. The only answer I can give to such a 41 question is the simple one that only an Act of Parliament can bind Ministers to a course of action. Words that are spoken in this House and in another House by a Minister do not bind Ministers or their successors to a course of action. In honour bound, of course, present-day Ministers 'would be expected to carry out the words given to a House of Parliament, but Ministers do not live for ever; they do not stay in their posts for ever, as I know to my cost.
§ In the same way as words in an Act, it will be noted that the clause instructs the Secretary of State to transmit a copy of the draft to the Commission for their consideration and advice. I am not quite sure that I have made absolutely clear what I was trying to say. What we are trying to include in this part of the Bill is something similar to what is already in the Bill in relation to the Commission. The clause says that the Secretary of State has to transmit a copy of the draft to the Commission for their consideration and advice. The Commission will be an important body, despite the fact that the Trades Union Congress has threatened to withdraw its members from that body, and indeed, as we know, Mr. George Woodcock has already resigned from the Commission in protest against the Government's action in relation to this Bill. But I agree that the Commission can be, and ought to be, an extremely important body in relation to the legislation which will eventually appear on the Statute Book.
§ The Commission will be a body that will have had experience of industrial relations. I imagine that before a code comes up for revision there will be some time during which references will have been made to the Commission, so that in fact the Commission will be knowledgeable. If this draft is going to the Commission as a result of an Act of Parliament, why not to the bodies that are concerned even more than the Commission, namely, the Trades Union Congress and the Confederation of British Industry?
§ This Amendment is one which the Government can accept. Up to now, this side of the Committee, inevitably and understandably, feels that the Government are sticking too closely to their brief in their replies to the points from this side of the Committee, many of which I would regard as having been 42 made with a great deal of force. I cannot see that there can be the slightest objection to the acceptance of this Amendment. The intentions of the Government are clear. After all, it is going to consult a Commission. It ought, also, to be expected to consult these bodies. This Amendment does not say "agree"; it says "consult". I believe that those are the sort of words that ought to go into a Bill of this kind, and I am moving this Amendment on behalf of my noble friend, hoping that the noble Lord, Lord Drumalbyn, will accept it. If he does not, I hope he will make much more conciliatory noises about it than he has on previous Amendments moved from this side of the Committee. I beg to move.
§ 4.40 p.m.
§ LORD SLATER
I rise to give support to my noble friend in the Amendment he has moved. I have thought of the workings of the Bill as a whole, and the parts, and particularly this clause, and wondered how any Government, even with Parliamentary approval, could impose a code of conduct on the day-to-day business of industrial enterprises in this country, whether they be private or publicly owned. To me it is just absurd, to say the least. And what are the excuses that we are receiving from Government spokesmen in both Houses of Parliament in regard to this for not consulting the T.U.C., on the one side, and the C.B.I., on the other? The reason seems to me to be: why consult with an organisation, particularly the Trades Union Congress, which does not approve of the principal contents of this Bill? If this is to be their attitude, to proceed without consultation, either with the T.U.C. and the C.B.I. or with other organisations, how can we ever expect to get anyone who is working in industry to fall into line with their proposals on industrial conduct? After watching the attitude of the Government up to date, I arrive at the conclusion that what they are seeking to do is to bulldoze this Bill through at any cost, without attempting to have any consultation at all.
Surely it has always been an accepted fact in regard to industrial relations that it is far better to discuss and talk on such issues of importance; in other words, it is better to talk, as it were, than to fight, 43 and that is the secret of getting anything done. But the attitude of this Government seems to be embraced in that phrase, so often used in the past and still being used, "We are the masters now". Let me say to noble Lords that there are no masters in regard to industrial relations, and anyone who thinks there are had better think again. For if industry is to be kept on the move, and if the cycles of operations are to be fulfilled and are to complete their function, it can be achieved only through co-operation, through consultation. I should have thought that the Government would know this. If they say they are aware that such is the case, why do they ignore it?
How can the Government expect either that the functions of industry will be properly exercised, or that people in industry will feel responsible towards the working of the code of conduct on industrial practice when they have not even been consulted (as has been brought out in the previous Amendment) on the details of what is going to be put into it? This is something that has never been explained. We did not receive an explanation in the last debate on the previous Amendment; we did not receive an explanation in the other place during the Committee stage when this point was being debated. It seems as though we are met with nothing more and nothing less than evasion tactics, when we should be more satisfied if we could get direct and more positive replies from the Government.
It may be that the Government, when they embarked on this Bill, thought that the Minister who would be responsible for its being carried through, the Secretary of State for Employment and Productivity, would be a man who had had industrial experience. I remember him making a statement to the effect that at one time he was an employee and not an employer; that he had worked on the shop floor, and that that had given him knowledge and experience of industrial practice. If this is so, then the Secretary of State is bound to know from his personal experience that these things must be done in a way which commits people to feeling that they have a reasonable interest in conducting themselves in a certain way.
44 On the other hand, when we move on to the question of consultation with the T.U.C., the attitude of the Minister and of the Government seems to be that as the T.U.C. is against the Bill it would be a waste of time to consult it. How do they know it would be a waste of time if they do not try it? Surely the Secretary of State, as an employer of labour in the past, before he took on his present responsibilities, must at some time have had brought to his notice that even his own employees had been very resentful when the management inflicted certain conditions without consultation and that, so far as the employees were concerned, such directives would not be carried out, and if the status quo was not restored it would lead to a stoppage. I am sure that if the Government were faced with this situation, or if the noble Lord, Lord Drumalbyn, were faced with this situation, he would say, "Let us have the official view. Bring in the shop stewards; let us have their reasons for this upset that has come about". I am sure that if they were to accept the Amendment so ably moved by my noble friend it would get them off the hook.
I know that the noble Lord who is responsible for the Bill going through this House understands the working of Parliament just as well as anyone else. There were many things said in the previous debate as to how Parliament works, how statutory orders are presented, the reasons for amendments and such like. But I am beginning to look on the noble Lord, Lord Drumalbyn, and his colleagues on that side of the House as being like "Stonewall" Jackson; they are put in, as it were, at the last wicket, and they will keep this wicket intact because they have received instructions from the captain that they must do so. This is what seems to be the attitude of the Government. After all, when we look at the figures, there must have been a great many people working on the shop floor who were responsible for electing the present Government to power; but no doubt they have had second thoughts and are now beginning to ask themselves; "Are these the people we expected so much from?".
The Government are now seeking to impose types of legislation like that of the Industrial Relations Bill. They are 45 trying to persuade key organisations of employers and trade unions that they have a stake in the national interest. We all have, but what many of us take exception to is imposition. I am old enough to remember the First and the Second World Wars, and there were certain people who, because of their convictions, had to suffer severe penalties through the law of the land as it was at that time. If this Bill goes through and becomes an Act, it will not be interpreted by the courts saying, "The Minister said this or that, which means this or that." When the Bill becomes an Act it will mean what it says, and an interpretation will be put upon it by those responsible within their judiciary capacity.
In view of the way my noble friend moved the Amendment, I hope that the noble Lord will accept it and add it to the Bill. Why does he not, as a Minister take his courage in both hands? He may be Minister Without Portfolio, but he is a member of the Government. I should like to see some Ministers have a little more courage than they have shown; to stand on their own feet and not allow themselves to be pushed around, and be prepared to accept Amendments when their consciences lead them to that conclusion.
The Bill states most definitely that it is the intention of the Minister to transmit a copy of the draft to the Commission. For what purpose? For their consideration and advice. If he is going to do this with the Commission, why cannot he do it with the T.U.C. and the C.B.I.? One body is the employer of labour, and the other represents the employees. I have no doubt that from the Cross-Benches we shall get views presented to us by the noble Lord, Lord Platt, in respect of other types of organisations and association. Why cannot it be passed on? In the Amendment we bring forward two organisations who are those most concerned with codes of conduct in the industrial field. As I see it, they ought to be consulted first, and not the Commission.
I hope that the Minister will not ignore what has been said. I would ask him to stop being a "Stonewall Jackson", and be a Minister who is responsible for presenting this Bill with the object of getting its acceptance. This 46 Amendment is minor in effect compared to previous Amendments in regard to the code of conduct and the principles embraced by it. I sincerely hope and trust that, before the debate on this Amendment is concluded, the Minister will be able to put himself into that position. Have a word with the noble Earl the Leader of the House, who is a member of the Cabinet. Surely to goodness he is strong enough to be able to carry his Cabinet colleagues (even against the Secretary of State who is responsible for the Bill) into accepting this Amendment.
§ 4.55 p.m.
§ LORD PLATT
I trust your Lordships will forgive me if I speak once again. I think I fully understand the principles behind the Amendment which the noble Lord, Lord Champion, has proposed, and which the noble Lord, Lord Slater, has spoken to. Surely this highlights what I was trying to say on Thursday. This Bill is about industry; it is about employers and employees, and about shop floors and shop stewards. They are splendid people, but they have nothing whatever to do with the practice of medicine—and why the practice of medicine is in this Bill I cannot conceive. I may say that the noble Lord, Lord Slater, looked my way and added "other organisations" at one period. I do not want to emphasise that I was President of the Royal College of Physicians for five years, but I must say that I never remember consulting either the T.U.C. or the C.B.I. about our codes of practice. I think it will be a bad day when the Royal College of Physicians starts to consult the T.U.C. and the C.B.I. about its codes of practice. I hope, and think, that I am speaking not only for my own profession, but it is my own profession that I know best.
If there were a feeling, as I think there may be, that this Bill does not apply very well to at any rate certain professions, then I think I should probably vote in favour of this Amendment. But, as the Amendment stands at present, I could not possibly do so, because I think it would give a false appearance of respectability and sweet reasonableness to something which I do not really support.
§ LORD POPPLEWELL
I am very sorry indeed that the Minister has not 47 indicated his line of thought in connection with this. When I say that, I think he has indicated quite clearly that he is not going to accept the Amendment, or he would have been on his feet before now. If that be so, and if my assumption is correct, I really am very disappointed. It indicates quite clearly that the charge of "union bashing" which was made against the Government in the past was fully justified. How can you get a satisfactory code of conduct unless discussions take place with both sides of industry? According to this clause, the Government are going to make their mind up on what the practice is to be. It does not indicate at all with whom they are going to discuss these matters. If we take the Bill as being something that the lawyers are going to be actively engaged upon, one can only assume that discussions must be taking place with the Departments of the Secretary of State and the Attorney General to try to build up the law in so far as this code of practice is concerned. One can only assume that.
I must apologise for not being present during the discussion on the first Amendment, because I was in attendance at the Highways Bill Committee, which has just finished. The discussions here have some relationship to what has taken place. Here you get representative bodies of both sides upon whom case law is going to be established, and still the political animals feel that they are the people to decide what this case law should really be. Not a great deal is being asked in this Amendment. Regrettably, we have had to accept that a draft code will be prepared. Now the suggestion is that after that draft code—at least so I understand—has been prepared, the pros and cons should be discussed with the C.B.I. and the T.U.C. before the finalisation of that draft is laid before Parliament. Surely that is not outrageous.
§ LORD DRUMALBYN
I wonder whether the noble Lord will forgive me for interrupting. I think that perhaps we are getting a little away from the question. The noble Lord was not here this afternoon, but I hope he will not go over the Amendment that we have just discussed. Perhaps the noble Lord would devote himself to the point that this is a question of the revision of the code; it 48 is not a question of the making of the code in the first place.
§ LORD POPPLEWELL
I stand corrected. The noble Lord has given me the word I ought to have used. It is the revision of the draft code, the revising of the draft code. We are saying here that surely both sides of industry should be consulted in that; they will have to work it. Is there anything wrong in that? We all know that if we do not get the co-operation of both sides, if a code is established that is only very reluctantly accepted because it is forced upon any section of the community, that will not be conducive to its working well. To get the best out of industry there must be a very close relationship, with give and take on both sides. How can you expect give and take on both sides if something is simply imposed, without discussion? These are important factors, and I sincerely hope that this is something that the Government will give way about. Later on, no doubt, there will be quite a lot of debate regarding the type of discussions that should take place, but for the time being we are specifying that, as between the responsible bodies of organised labour and the employers, discussion should take place as regards this revised code of practice.
§ LORD COOPER OF STOCKTON HEATH
I rise to support the Amendment because I hold a basic view—and I think the trade union movement hold the same basic view—which is fundamentally opposed to everything upon which the Bill is based, but it is nevertheless a point of view which I think can be put forward in regard to this code of practice. That view is that we shall never have a satisfactory labour relations situation in this country on a compulsory basis, and it will depend entirely upon the Government and industry, as represented by the trade unions and by the C.B.I., even although that representation might to some extent not be as adequate as one would wish. But this Amendment deals with a clause which is setting out how the code of practice may be regarded, and I can only assume—I hope this is not a wrong assumption—that that means either that the code of practice as contemplated is considered not to be adequate or that it has been tried and has failed. This code of practice 49 is part and parcel of the concept of the Bill. It is, of course, to provide a legal framework within which labour relations may operate. If in fact compulsion has failed in regard to certain parts of the code of practice, then the only hope of getting it to work, I presume, will be on a voluntary basis; and if you want it to work on a voluntary basis then you must go to the parties who at the moment are endeavouring—not with as much success as I should like to see; but they are trying—to operate on a voluntary basis.
Throughout this we must always keep in mind that the objective of getting improved industrial relations is important in itself, but it is much more important for this country because of the economic effects that will follow if we fail to get that good relationship. It is because of that, and because I believe we need to have positive, understandable policies among the trade unions, the C.B.I. and the Government, that in my view this Amendment is a reasonable one and I am not going to assume that it will not be accepted. I hope that we can make positive, worthwhile and useful suggestions which will be given the consideration which I think they deserve.
Coming finally to the Commission, the Commission is a new body being set up by law, as was intended, of course, under the previous Bill, which never got very far on its way under the last Government. That contained the same concept of a Commission, and there is nothing wrong in this. I do not think, as Lord Platt seemed to suggest, that it is offensive to suggest that there is more wisdom in the T.U.C. and the C.B.I. in regard to labour relations than there can be in any Commission that is suddenly set up, no matter how well it is manned. In fact, I should think that if the Commission have to find out anything about any proposition in regard to the origin of the code the first places they would go would be to the T.U.C. and the C.B.I., to get their observations.
§ LORD PLATT
I think there is a misunderstanding here. I was not talking about a Commissison. I was only saying that the way we manage our affairs in the professions is somewhat different from the way in which they are managed 50 in industry, and the one does not always relate to the other. If I seemed to be superior about my profession, it was, first, because I have a loyalty to it and, secondly, because the real difference is not superiority or anything else. The real difference, as I said on Thursday, is that we have an overriding loyalty to our patients, as the engineers and people have to their clients; and questions of employers and employees, the Trades Union Congress and the C.B.I., never enter into any of our notions at all. We just work differently; that is all.
§ LORD COOPER OF STOCKTON HEATH
I appreciate that, and the reason is that the parallel is not there. As the noble Lord says, members of his profession have an over-riding loyalty to their Patients. We have an over-riding degree of patience with our members, (if I may play with words), who rely on us, just as his patients do on him.
But ultimately, as I have suggested, the job of putting practices into operation comes down to the shop floor; and, as I suggested in an earlier debate, we cannot get perfection in this field. What we can do, of course, is to try constantly to push towards an improved situation; and the instrument for carrying this out, of course, is the individual trade union. Therefore it is important to have some regard to the unions. I know we may be told, "You will be consulted at another level", and so on. There is a great problem here, of course. The code may be so offensive that even the trade union movement may say, "We do not want to be consulted. It is so bad that there is nothing we can do about it". This, I appreciate, is a problem. But in the very bad situation which exists, and has existed in this country for some time, someone has to make a move to try to get the three parties—the trade unions, the employers and the Government—together. The sooner we do that the better and it would not be a bad thing if this Amendment made its contribution towards that endeavour.
§ LORD BROWN
I have no wish to labour the points so ably made by my noble friends in relation to this Amendment. I want to take a rather different point, and it is that this particular Amendment is likely to be regarded by 51 a good many people—certainly by myself—as a sort of test case of the Government's ability to accept any Amendment to this Bill; for here is an Amendment which is quite consistent, as I understand it, with the Government's attitude to the whole of this Bill. We all know what happens, if we have been Ministers in one Government or another: the senior Cabinet Minister, who is not in this House, takes up an intransigent attitude, sometimes out of contempt for this House and sometimes through a lack of understanding of just what this House can do by way of improving a Bill. I suspect that the noble Lord on the Government Front Bench is suffering a good deal from this attitude, displayed towards him by Mr. Carr and others in the Cabinet in the present Government.
If this Amendment, innocuous to the Government, but very important to us, is rejected, what hope can we have, in face of the intransigent attitude so far unfortunately adopted, in relation to any Amendment? I have not been whole-heartedly in support of some of the Amendments coming from my own side of the Committee because they would have undermined the Government's attitude to the Bill, much as I dislike it. We recognise that the Government could not accept many of the Amendments, but there have been one or two and this is the latest example—where it would be inconceivable that the Government could object to what is proposed in the Amendment. The noble Lord, Lord Drumalbyn, was opposite me when I was in the last Government, and on a number of occasions during the discussions on a Bill he has been zealous in pointing to deficiencies in a clause which makes it obligatory on the Government to consult with trade associations, consumer associations and the like. Consistently—I think on every occasion—I have yielded to his Amendment or have had a similar Amendment put into the Bill to bring it into line with what is known to be necessary: the maximum amount of consultation. Here is a similar example. If I were in his place I should have no hesitation over this.
I am not going to go on any further. I am saying that this is really something of a test case. If the noble Lord is not in a position to accept this Amendment 52 I beg him not to say that he is going to reject it, and thereby force us to a Division. I beg him to go back and report what has been said in this Committee about this Amendment to those who have to condition his attitude—otherwise I do not know what the future holds for all the following Amendments.
§ 5.12 p.m.
§ LORD DRUMALBYN
A number of different points of view have been put and I must say that when the noble Lord, Lord Champion, moved this Amendment and urged me to be more conciliatory than in the previous one I felt that he might have urged his noble friends also to be more conciliatory. This Amendment, as I feel sure the noble Lord knows, has the entire sympathy of the Government; but the question is whether the Amendment should be made to the Bill. As the noble Lord, Lord Brown, knows, it is not merely a question of whether the Amendment will do any harm or anything of that sort; it is a question of considering whether it is desirable to include it in the Bill having regard to what it actually says. We all know that an Amendment can be, in appearance, extremely innocuous or extremely helpful; the question is whether it could possibly, in any circumstances, have a damaging effect.
We all recognise that the code of practice, if it is to be effective and to fulfil its purpose, must be a practical document giving practical advice to practical people. We shall therefore be looking for such advice, and we hope very much that we shall get it from those whom we invite to give it; but do let us remember what we are talking about here. If noble Lords will look at Clause 2 they will see what the code of practice is going to do. It is going to contain practical guides. Let us be quite clear about this. If you are going to seek practical guidance, you are going to seek it from people who have the practical experience. This would obviously, and must necessarily, include the Trade Union Congress. I must say that I thought it a bit odd that we should be accused of not wanting to consult the T.U.C. On a matter of this kind, as I think the noble Lord, Lord Cooper said, a code of practice can work only with the consent and guidance of both sides. But there are others as well. Is that not so? We shall want to consult with people 53 like the Industrial Society and the Institute of Management. I am asked why there is consultation with the C.I.R. but not with the T.U.C. and C.B.I.—
§ LORD DRUMALBYN
I really should like to develop my argument. I know what the noble Lord is going to say.
§ LORD GEORGE-BROWN
Until I have said it, even the noble Lord cannot know what I am to say. I thought I heard him say that this can operate only with the advice and the consent of the T.U.C. The Clerks will know whether I heard it aright, but that is what I understood him to say.
§ LORD DRUMALBYN
Yes, a system like this can work only with the active consent of all participating. In the long run that is true. It does not moan that the Government should desert their proper role. What it means is that after full consultation, the fullest that can be obtained, there should be general consent that this is the best code that can be contrived and Parliament can take it in that light. I do not think there can be any doubt about that. I am asked why there should be consultation with the C.I.R. and not with the T.U.C. and C.B.I. There is no question of not consulting the T.U.C. and C.B.I.; but the C.I.R. is a corporate body set up to advise the Secretary of State on these matters, and it is therefore right that the Commission should have a statutory right to be consulted. There is no reason or need to extend that to other bodies, because without the broad consent—and, of course, I was talking about broad consent, as the noble Lord will know quite well—of all concerned this kind of thing will not operate.
§ LORD BROWN
In Bill after Bill it has been customary to put on the Government statutory obligation to consult—and the noble Lord has made this point to me many times across the Floor of the House. Why is he denying now the statutory obligation to consult? It is a common enough practice. Why reverse what is the practice in Bill after Bill?
§ LORD DRUMALBYN
The reason is simply this. The noble Lord, Lord 54 Champion, was talking about committing future Ministers. Consultation is a two-way process. What one has to do here is consider whether it is right to commit future Ministers to have to wait for consultation with the C.B.I. or the T.U.C. It is of no use the noble Lord turning aside; this is a serious point. Has the Minister got to wait in all circumstances?—and we are talking about future Ministers. I am sure that the T.U.C. will want to be consulted and will be consulted. This is bound to be so. We are talking about future Ministers being committed to wait until possibly a reluctant or recalcitrant C.B.I. or T.U.C. consult with the Minister. This is what has to happen.
Noble Lords must look at what the clause will say: "He shall after consulting"—he cannot do it until he has consulted—"with the T.U.C. and the C.B.I.". Whatever noble Lords may have wanted—and I can understand their wanting an obligation to consult the T.U.C. and the C.B.I. put into the Bill—they are doing exactly what the noble Lord, Lord Tangley, pointed out the other night on the Amendment concerning agreement: they are really putting a veto on the T.U.C. and the C.B.I. in future, in the same way.
§ LORD SHEPHERD
Would the noble Lord not agree with my noble friend that on many occasions Parliament has put this statutory duty into legislation? This is the first time I have ever heard it suggested that by putting in a statutory obligation you are putting in a veto. I think the noble Lord is going much too far. I should have thought that if only he would make a gesture to my noble friends on this side of the House he would be doing not only a service to the Committee but to his own Government.
§ BARONESS WHITE
Does the noble Lord not recall that the point Lord Tangley made was that the Amendment then under discussion made that particular provision subject to the agreement of the Trades Union Congress, and this was objected to. That has nothing whatever to do with the obligation to consult, which is something entirely different.
§ LORD DRUMALBYN
This may seem a kind of niggling point to the noble 55 Lords opposite, but there are two meanings to the word "consult" and we can be reminded of that in the future. If noble Lords will look up the meaning of "consult" in the dictionary, they will see that it is "to ask information or advice from", and to consult with—which is to take counsel with—means that there are two of you. So we have to be just a little careful with an Amendment of this kind. I am sure the noble Lords moved this Amendment in the utmost good faith. I am sure they were not just seeking to erect a barrier to the revision of the code in the future. However, we have to be careful about the wording of particular Amendments and it is perhaps not right to restrict the obligation to consult to only two bodies. If noble Lords will really consider it I think that they will feel that this is not right. At other points they have put "organisations of employers" in the plural. It is really not right to seek to restrict this consultation to only two bodies in this way.
This does not in any way indicate any sort of union-bashing—of course it does not—any more than it indicates industry bashing or C.B.I. bashing. I must repeat this very solemnly: it shows that it is the intention of my right honourable friend to consult whenever the code is revised. And may I say in passing that experience may well show that the code can be improved and that therefore it is desirable to revise it. What is more, circumstances may change, and it may therefore be desirable also to change the code. I do not think there can be anything between us on that. What I am being asked to do is to accept an Amendment which I indicated to noble Lords there would be some danger in accepting. Moreover it is unusual to put in an obligation to consult only two bodies when there are many more bodies who would have an interest in being consulted.
§ LORD BLYTON
Would the noble Lord not agree that here, in the Government's own Bill, is a draft to be sent to the Commission for their consideration and advice. This is an organisation that is going to be set up under the Bill, with plenary powers. What do they expect to get from the Commission from the obligation to submit the draft to this Commission? What do they expect to get?
§ LORD DRUMALBYN
All I have been saying is that it is inconceivable that the Secretary of State would not consult with the C.B.I. and the T.U.C. He will also no doubt wish to consult with other bodies as well before he drafts the code, and again in the course of drafting it. Surely we can agree on this. I think it is really a test of the willingness of the Opposition to have confidence in future Governments—indeed it is. The noble Lord says that we cannot bind future Ministers, but future Ministers must do the common-sense thing, and at the end of the day if there has not been sufficient consultation and if Parliament says, "You ought to have consulted with the T.U.C. and the C.B.I. and you have not done so", then it can throw out the revised code. Surely this is the final answer. I really do not think we need pursue it. The inbuilt safeguard and the common sense of the whole thing is so clear that it is not worth pursuing.
§ LORD BROWN
Will the noble Lord not undertake to review the question and to consider the introduction into this clause of the normal duties that a Government have accepted in a number of Acts in regard to consultation? If he will do even that, I daresay my noble friends will withdraw this Amendment. When consultation clauses have appeared in Bill after Bill, can the noble Lord really give good reasons why one should not appear in this Bill?
§ LORD DRUMALBYN
I am perfectly willing to consider what the noble Lord has just said. Obviously I cannot enter into a commitment, but I am willing to consider it.
§ LORD BLYTON
The Minister must not be under any misunderstanding about consultation. Our experience was that when this Bill was being formulated the consultation with the T.U.C. consisted of saying "You take this, or else!", and the T.U.C. turned it down. Is the T.U.C. in the context of Clause 3 to witness the same fait accompli and be told, "Accept this, or else!"? If that is the form consultation is to take, we want none of it.
§ LORD DERWENT
May I say a word? There are one or two of us on these Benches who are a little concerned about this Amendment and its 57 acceptance or non-acceptance. We are not clear in our own minds. There is a considerable danger in naming two organisations in case it might be argued in future that other organisations were not to be consulted. My honourable friend has said he will look at the matter again, and I should like to say from these Benches, as a supporter of the Government, that I hope he will look at it. It may not be possible to put it into words that will satisfy noble Lords opposite. I do not think the Amendment is right in naming two organisations; but as my noble friend has said he will look at it again, I hope noble Lords opposite will not press this Amendment.
§ LORD POPPLEWELL
Do I understand the noble Lord to say firmly that he will look at this again? If that is so, I am rather delighted. The looks of concern on the faces of the supporters behind him show that they are not happy with the stand he has taken, and I think the noble Lord, Lord Derwent, has emphasised that. If he will look at it again, that will bring us back to what we have known of the noble Lord in the past, as opposed to his stonewalling attitude now.
§ LORD DRUMALBYN
To make the matter quite clear, I have just said that I will look again at what the noble Lord said. That does not mean that we could accept this Amendment.
§ 5.30 p.m.
§ LORD GEORGE-BROWN
May I press the noble Lord on this? I think he torpedoed his own case when he said that to revise the code meant that one had to get consent.
§ LORD DRUMALBYN
With great respect, I was talking about the original code and saying that the whole system of the code could not work without consent.
§ LORD GEORGE-BROWN
I presume that the whole system of the code means the revised code as well as the original code? Very well: then the noble Lord is saying that a code cannot be operated without consent. You cannot get consent unless you consult. So if you have to consult, you must consult certain bodies in the field. Now there is the T.U.C., without any question; and there 58 is the C.B.I., without any question. The noble Lord, Lord Platt, says that there are some other bodies. If the noble Lord, Lord Drumalbyn, is really saying, "I will look at the Amendment in order to see that it takes care of the bodies that the noble Lord, Lord Platt, has in mind", I understand what he is saying. If that is what he means, then no doubt we can arrange that someone will put down a suitable Amendment at some stage. So long as that is what he is saying. But I am bound to tell the Committee that I have an uncomfortable feeling that the noble Lord is not saying quite that.
Speaking for myself, I say that "consent" means "consultation". That most certainly means with the T.U.C., which I know best, and it most certainly means with the C.B.I.—which noble Lords on the Government Benches know better than I do; though I am getting to know it a little bit now—and it must mean with the professional bodies. If the Amendment is objectionable only because it is not wide enough, very well; let us wait for the widened version. If it is objectionable because the Government do not want to be tied down to consult and consent, I think we must push the Government, even to a Division. I am not quite sure what the noble Lord is saying. I think he is trying to be a little, to use my old favourite word, "phenebulous". Let me put it the other way round. "Consent" must mean "consultation". But "consultation" does not have to mean "consent ". The noble Lord said that it had to have consent; that must mean consultation, and all we are asking about is which body has to be consulted. That is easy. We can amend the Amendment to make sure we take account of everybody else. If the noble Lord is trying to be a little bit too clever, and because we have not named everybody he is telling us we cannot have even consultation, he should not have used the word "consent"—there will not be any. I trust that we shall push the noble Lord, not merely to say that he will look into it again, but also to say that he will look into it again in order to ensure that all the bodies concerned, whoever they are, shall have the right to be consulted. If we can get that, we can get an appropriate Amendment at some stage and then we shall all be happy.
§ LORD PLATT
Would the words, "T.U.C. and C.B.I. or other relevant organisations" fill the bill here? I would prefer the word "or" to "and", because I see no particular reason why bodies like the Royal College of Physicians, who have managed their own affairs up to now, should in future be under the supervision of the T.U.C. or the C.B.I. I do not agree that they should, and therefore I would use the word "or" and not the word "and".
§ LORD ALPORT
My noble friend who is in charge of the Bill for the Government has undertaken, as senior Minister responsible, that he will look again at this problem. The problem is quite clear to us all. My noble friend Lord Derwent said that some of us on this side of the Committee—he spoke for himself; I also feel the same—think that my noble friend Lord Drumalbyn is right to say that he will take another look at this, in view of the arguments which have been put forward. It would be wrong, I think, to try to carry it to the length to which the noble Lord, Lord Brown, is attempting to do, or indeed to take the detailed proposals of the noble Lord, Lord Platt. The circumstances of this important Amendment should be left to be considered by the Government again at the next stage of the Bill, but at the same time without commitments which no Minister in these circumstances could be expected to undertake.
§ LORD HANKEY
We have had a very satisfactory assurance from the Government. I think we have too many organisations already and I should like the C.B.I. and the T.U.C. to be given more power and have a good deal more influence. I think that would greatly facilitate our industrial relations. But I hope that the Minister will also consider what is to be the next stage After all, after this consultation we have been talking about it has to go to the Commission on Industrial Relations. When I looked at this text I said to myself originally, "Obviously, the C.I.R. will consult the T.U.C. and the C.B.I.". Someone has to do it, and if we are not careful we shall make everybody do the work of the C.I.R. I should like the C.I.R. to be a powerful body, too. If the consultation happened there, I should be equally happy. I agree that consultation ought to 60 take place. We do not want matters delayed until consent is obtained by everybody, especially in view of the experiences we have had. But I think it would be a very good thing if the Government looked seriously again at the procedures contained in this clause, including the next bit which we have not yet discussed, and laid another Amendment before the Committee.
§ LORD DRUMALBYN
Before the noble Lord replies, may I say one thing? I think that the noble Lord, Lord George-Brown, took me up a bit sharply. We all know what is meant by "Government by consent". It does not mean that everyone in the whole country has to give consent. The noble Lord knew that that was the sense in which I used the word.
THE EARL OF BALFOUR
May I say one other thing? I feel that we should carefully consider what is being said in subsection (3). If I may nut it briefly, it states that any revision of the code of practice by the Secretary of State shall be placed before the Commission for their consideration and advice. That is putting it in simple English. Let us not forget that the code of practice is not legally binding, and in my opinion it should not be. Secondly, any revision of the code of practice is delegated by the Secretary of State to the Commission. It is up to the Commission to decide whom they shall consult. They are limited enough in their duties under this Bill. It would be a pity, I feel, for the Secretary of State, or by the provisions in the Bill, to dictate to the Commission that they must consult the T.U.C. or the C.B.I. The matter might be something that had little to do with the T.U.C. or the C.B.I. It might be something in the code of practice which needed to be introduced to provide particular Amendments, possibly affecting NALGO, or something in respect of the B.M.A., or something else.
THE EARL OF BALFOUR
Yes, of course I am; but the matter might specifically concern a particular branch. Many unions cover a very wide field. It could refer to some specific negotiating body, and I think it would be a mistake to limit them.
§ LORD BROWN
Is the noble Earl aware that everything he is saying could he said about every consultation clause in every measure that this House passes? If he is right, every other consultation clause in every other measure is wrong.
THE EARL OF BALFOUR
I do not think that you want to specify whom they shall consult. I think that would be a mistake, and I feel very strongly about it.
§ LORD DAVIES OF LEEK
Does the noble Lord realise that when one refers to the T.U.C. one does not mean all the members? From practical knowledge, as a former Minister I know that when one was dealing with an increase in pensions one discussed it with the British Legion, if the pensions concerned were war pensions. The T.U.C. was also called in, but that did not mean that every member of the T.U.C. would be present. There would be three or four members who were knowledgeable about the matter under discussion. That is all we are asking here, we are not asking for the whole gamut. To be fair to the noble Lord, in view of the success achieved, I feel that the sun must shine on him a little, and I will not speak any longer in case I annoy the Committee. I hope we get a little success here.
§ LORD STONHAM
I do not know what the noble Lord, Lord Drumalbyn, intends to do about this Amendment, or indeed what my noble friend Lord Champion thinks about it. But in my view the Amendment should be pressed as it is, unless the noble Lord is able to give a firm assurance in explicit terms. If we have to think of a form of words that will satisfy everyone, it means that we have to satisfy a large number of organisations—not the trade unions, because they are already covered by the T.U.C., but the employers' organisations. My noble friend Lord Platt has told us of the position of physicians and surgeons. But the National Farmers' Union are extremely critical of this Bill, in many of its aspects, and very concerned about its effect on their members. I have had a considerable number of documents from the N.F.U. asking me to move Amendments and to support opposition to the Bill.
§ The noble Lord the Minister said, "Of course the Government is in favour of consultation". When one naturally asked, "Why do you not put it in the Bill?", he attempted another explanation, which I must say I found singularly unconvincing, and therefore the noble Lord has only himself to blame if he finds it difficult to convince us. If we put forward an Amendment which seems utterly reasonable, as indeed it is, we cannot be put off by sophistries and perhaps clever words which would need a good deal of study before we got to the bottom of them. Therefore I say, with my noble friend Lord Champion—and I think this was also Lord George-Brown's view—that we should stick to our Amendment unless the noble Lord is able to tell us convincingly that if we leave it now and come back to it at a later stage we shall have something which will meet with the agreement of all parts of the House.
§ LORD PARGITER
I wonder whether we could get a little more from the Minister? If the Minister says—and after what he has been saying at the Despatch Box there ought to be no difficulty about this—that he accepts the principle of this Amendment, but would require it to be worded in such a way that it was not necessarily so limiting as it may be as it is now worded, it seems to me that that will be acceptable. But we should like to know that at least the principle is acceptable. The Minister has not said so in so many words: he has merely gone all round it. But if he says that much, I am sure it will be satisfactory.
§ VISCOUNT HANWORTH
The trouble with this Amendment as I see it is that it says one must consult with the T.U.C. and the C.B.I., and I agree with the Minister that it would be inconceivable that a Government should not do so where there was any matter which had any concern of those two. What worries me far more is that the other people concerned, the professional associations, might not be consulted. I do not believe one can hatch up an Amendment which adequately covers this sort of thing without leaving a number of loopholes and leaving out other people. I therefore think it would be the greatest mistake to put forward an Amendment such as 63 this, which only tells people to do what they will do anyway, and leave the whole of the rest of the field uncovered. I should have thought the common-sense point of view was to leave it to the Government. We all seem so suspicious that it is hardly true.
§ LORD BEAUMONT OF WHITLEY
I should like to support the point made by the noble Lord, Lord Pargiter. I think there should be a consultation clause in this Bill. I do not think the present Amendment is really satisfactorily worded. If the Minister would give us an assurance on the principle of a consultation clause, I think we ought to leave it and return to it at the Report stage. If he does not, I for one would certainly support the Amendment as it stands.
§ LORD SINCLAIR OF CLEEVE
May I just say, speaking as a former industrialist, and in the knowledge of the fact that I am still on the Council of the C.B.I., that I should feel it very unfortunate if, as a result of the debate to-day, a vote were taken against this Amendment, and the impression thereby created that this House was against consultation in this way. I believe that that would not reflect the opinion of the great majority of this House, and I strongly support what my noble friends Lord Derwent and Lord Alport said, in the hope that the Committee may accept the assurance given by the Minister. I might add that I very much hope that that assurance might be extended, on further consideration, to providing for adequate consultation within a reasonable time between the publication of the code and its coming to debate in Parliament. That is something which I think could be very important if the practical considerations which some of us feel are vital are adequately considered.
§ LORD CHAMPION
I am most grateful to the noble Lord who has just sat down for the good sense which he has injected certainly into this part of the debate; namely, that dealing with the possibility of something happening between now and Report. I am a politician, a strange one, who does not particularly like the sound of his own voice. For that reason I do not propose to attempt to reply to all the points which have been made in this debate. But I am going to 64 accept the word of a man with whom I have had honourable dealings when I sat on that side of the House. As the noble Lord, Lord George-Brown, has said, Lord Drumalbyn and I have changed sides now. We have in the past sat opposite one another on Bills, and I am absolutely sure that if I gave the assurance which the noble Lord, Lord Drumalbyn, has now given us, were he sitting on this side he would accept that assurance and expect something to happen between now and the Report stage. All we are asking is something that has already been stressed a few times: that if we do not press this Amendment, which deals with only two bodies, but rather leave the door wide open to ensure that there shall be a statutory obligation to consult more generally. This is what I understand the noble Lord is prepared to look at and, to some extent, to satisfy the House that he will bring something in on Report. If, as I believe, that is the case, then I certainly will not press the Amendment. If the noble Lord will just nod to me and tell me that that is what his speech was all about, I shall be perfectly happy to withdraw this Amendment, on the understanding that we may consult together and that if that consultation arrives at something which is satisfactory to both of us, an Amendment will be put down at Report stage. I sincerely hope that that will happen, for the good will which can exist across the Committee even on a controversial Bill such as this. Does the noble Lord nod?
§ LORD DRUMALBYN
Yes; I do nod. I shall be very happy to consult with the noble Lord. I hope that something more than that will happen between now and the Report stage. All I can say is that I cannot absolutely guarantee that it will result in an Amendment being put down.
§ LORD CHAMPION
I understand the noble Lord's position. Having regard to the fact that he backed up his nod with words, I am happy to ask leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 5.49 p.m.
LORD DAVIES OF LEEK moved Amendment No. 18:
Page 3, line 3, after ("Commission") insert ("and Parliament").
The noble Lord said: So that we can be brief as possible, and thereby indicate
our gratitude for at least the nodding of the Minister on the Front Bench, I will read out subsection (3). There is a reason for my reading, because I want to get the semantics right, and then the meaning. Subsection (3) says:
Where the Secretary of State proposes to revise the whole or part of the code of practice (in the form in which, whether as originally approved or as previously revised, the code or that part of it has effect for the time being) he shall prepare a draft of the revised code, or of that part of it, as the case may be, and shall transmit a copy of the draft to the Commission"—
my Amendment then wants to say, "and Parliament"—
for their consideration and advice,
I do not think there is need for an involved and long discussion on this point. The Secretary of State is defending himself from the charge of autocracy by suggesting that when he proposes a revision of the code—of a revised code, or any kind of revision—he shall put that draft before the Commission for their consideration and advice. The Commission may be working in a mysterious sea that is uncharted, and may not seek advice, though now we are told they will probably do so in other quarters. It seems that as the clause now stands Parliament itself could not have a say in it. I should think it is essential in an Industrial Relations measure of this magnitude for the draft to be brought before Parliament for consideration and advice. The noble Lord may say, "Ah, there are no penal conditions". But we are not sure about this. Do definitions of unfair practices enter into this?
§ THE LORD CHANCELLOR
The noble Lord is wrong. If by that he means an unfair industrial practice, that is either in the Bill or not there at all. In the code there cannot be found an unfair industrial practice.
§ LORD DAVIES OF LEEK
May I ask the noble and learned Lord, if it cannot be found in the code, can an unfair practice be arrived at as a result of the code?
§ THE LORD CHANCELLOR
The short answer is, No. This is contained in Clause 4 very clearly, and perhaps we shall come to that in due course. Let me give a "No" now, because it is clear in Clause 4 what the code will do. If 66 the noble Lord wants an easy analogy at this stage, the Highway Code is a good guide.
§ LORD DAVIES OF LEEK
I accept the noble and learned Lord's advice, out of fairness and leave it at that. Once we get the realm of jurisprudence overlapping with the realm of ethics no one knows where they arc. I think it is essential to get consultations all along the line. In view of the good mood in which the Committee has been, may I ask the noble Lord if he could deal with this Amendment as he dealt with the other and reply right away, and I shall sit down now and enable the Committee to expedite its business. Frankly, I see nothing in the Amendment that need damage the Bill, and I think that it will improve the Bill. I beg to move.
§ LORD DRUMALBYN
This is an Amendment which I do not think the noble Lord would really wish to press. The Commission is set up as adviser to the Secretary of State; they will give informal or formal advice, and they shall be in a direct relationship with the Secretary of State. But to suggest that a copy of the draft should be submitted to Parliament for its consideration and advice raises an altogether different picture. It means that Parliament must consider this, presumably in a debate, and then in some way or other tender advice either after or during the course of the debate. Surely this is not the right stage for that to happen. Surely the stage is after the C.I.R. have given their advice and the Secretary of State lays the draft before Parliament. At that point Parliament can discuss it and give the Secretary of State advice. I hope that the noble Lord will not press his Amendment.
§ LORD DIAMOND
I feel that my noble friend was anxious that this worthwhile point should be given an airing and that the view of the Government should be taken, and that we should hear the noble Lord, Lord Drumalbyn, explain their view. The noble Lord will agree that at this point in the Bill there is no reference to the way in which Parliament should have an opportunity to consider a revised code. The Secretary of State has given 67 an indication of what course of conduct the Government are likely to take, but there is nothing in the Bill so far indicating what part Parliament will have to play in the revision of the code.
Of course, the preparation of the code in the first place, turning it from a draft into a code, is admittedly the more important part. Once we have a code we can see how it works, and experience on all sides, including the C.B.I. and the T.U.C., and of course doctors and surgeons and for that matter accountants or anybody else, may suggest revisions. I do not think that the revision of the code is likely to require the same care and consideration as the creation of a code in the first place. It could well be that a part of the code becomes due to be revised and requires full consideration at as early a stage as possible before opinions have solidified, and it is from that point of view that it would be helpful to have an Amendment of this kind to secure Parliament's opinion upon it.
I think that I should invite a word or two more from the noble Lord about the way that Parliament would be given an opportunity to be considered in relation to a revision of the code. Then I feel, and I sense that my noble friend might share this view, that if the noble Lord were to make it plain to us that Parliament was to have a proper place in the revising of the code, this is not a matter on which we should wish to delay the House overlong.
§ LORD DRUMALBYN
My answer to that would be that one of the ways in which the need to revise the code would arise would be from Parliament, because the working of the code would be constantly before Parliament. Obviously anything that goes wrong in industrial relations would eventually come before Parliament and the working of the code will be kept under close watch. I do not see any difficulty about this. Noble Lords should bear in mind that the revision of a part of the code may not be a very serious matter. From what the noble Lord, Lord Diamond, has indicated, I think he is aware of this. My own experience of Government is that if we make matters too formal the result is that many things requiring revision will be saved up over a long time and then have to be laid together, before the code 68 can actually be revised as it should be, so that I hope we will be able to retain flexibility in this, and not have too much formality.
§ LORD POPPLEWELL
Could I ask the noble Lord a question? I appreciate the point he is making that ultimately this code will be handed over in effect to the N.I.R.C. or the industrial tribunals, that one of the questions to be asked in Parliament would be, what is the reaction of the Government? Would they be able to answer the question? Would they be able to say, just as they do with nationalised industries, "This is a question of day-to-day management, that comes under the N.I.R.C." and not give any answer. It is purely information that I am seeking at the moment.
§ VISCOUNT AMORY
If I understood my noble friend aright he appreciated that Parliament might wish to discuss and debate some revision, depending on the importance of it as the noble Lord, Lord Diamond, has said. I understood him to reply that should Parliament wish to discuss and debate a revision then it would be able to find an opportunity and a way of doing so. I think that is what the Committee would like to feel.
§ LORD BERNSTEIN
Perhaps the noble Viscount can help me again. This clause says that the Secretary of Stateshall prepare a draft of the revised code. or of that part of it, … and shall transmit a copy of the draft to the Commission for their consideration and advice".It does not say whether he will let anybody know what the Commission says about it. Subsection (4) says that he shall take account of any advice, but he then goes on to do more or less what he wishes to do. Will he let Parliament and others know what the advice was from the Commission so that Parliament could consider the Commission's advice as well?
§ LORD PARGITER
The particular problem about consultation is that once the draft order is laid it cannot be amended. This is the problem we are up against—whether a White Paper could be produced which would give Parliament some idea of what was in mind so that representations could be 69 made to the Secretary of State by Parliament in some form or other. Once it gets to the draft order stage we have either to accept it or reject it, and sometimes it might be rejected for something that could easily be put right. That is why we want to think of some means of consultation.
§ THE LORD CHANCELLOR
My noble friend has asked me to answer one or two of the points made. As I understand it, the position is this. In answer to the noble Lord opposite, the Secretary of State has certain duties under this Act. He is subject fully to interrogation in Parliament. There would be no means of trying to establish a doctrine such as that which exists in relation to nationalised industries, whereby the day-to-day management is left to someone else. This is the Secretary of State's day-to-day responsibility. From that, each House has its own procedures, this House perhaps more than the Commons. The Commons would have full-time at Question Time, Adjournment Debates, Estimates, Supply Days and so on to discuss particular aspects of the code. The simplest form would be to ask the Secretary of State whether he would amend the code in such and such a way, and that would be accepted by the Commons Table, or by the House here, as a question to be put, and the Secretary of State would have to answer it.
§ LORD DAVIES OF LEEK
That was an important answer from the noble and learned Lord. The Amendment was exploratory, to ensure that Parliament was maintaining its rights. In view of Clause 4 which follows—though I should be out of order if I started discussing that—I will, with permission, withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.6 p.m.
LORD BEAUMONT OF WHITLEY moved Amendment No. 19:
Page 3, line 9, at end insert ("any advice given to the Secretary of State by the Commission under this sub-section shall be published by the Secretary of State.")
§ The noble Lord said: I rise to move the Amendment standing in my name 70 and that of my noble friends. The purpose of this Amendment is that any advice given to the Secretary of State by the Commission on Industrial Relations under this subsection shall be published by the Secretary of State. This point, as noble Lords will have noticed, has already been raised when discussing the last Amendment. The noble Lord, Lord Drumalbyn, did not rise to reply and I hope he will rise to this one.
§ The Commission on Industrial Relations is to be a statutory body, a very important one in terms of the making or the revision of this code. It is no way going to he a sectional body which might have secrets which it would not want to be disclosed, whether or not they should be. The responsibility must in the last resort lie with the Government and the Secretary of State for decisions made. But I think, if we are setting up a body as important as this the onus should be very much on the Secretary of State, if he is going to disregard the advice given by this extremely important Commission, to say why he is not following their advice, and for that to happen it is obviously necessary that the advice should be made public. I cannot see any disadvantage in the advice being made public. Presumably all of us are in favour, where possible, of more open government.
§ This seems to me an elementary point where again confidence in the work of the Secretary of State and of the Commission could be heightened in everybody concerned if they knew exactly what was going on; and it will be part of the effort of building up the Commission on Industrial Relations into being the important body it undoubtedly ought to be if the Commission knows that what is recommends is going to be published, and therefore if it is in any way going to be overruled that will become the subject of serious and open discussion. I do not think there is any need to say any more. I beg to move.
§ LORD DIAMOND
Perhaps I could be excused for a moment to explain that the number of names which appear on this Amendment are by no means the result of a shot-gun wedding; they are the result of independent minds searching after truth and arriving at the same conclusion. The noble Lords, Lord Byers, 71 Lord Henley and Lord Beaumont of Whitley, reached their conclusion and put an Amendment down, and we on our side reached a similar conclusion and put an identical Amendment down, and the joining of the names, which is a matter of privilege and happiness so far as I am concerned, is the result of the work of the authorities of the House. Having explained that, and having endorsed every word which the noble Lord, Lord Beaumont, has said, 1 will be interested to hear the reply of the Government.
§ LORD DRUMALBYN
This is an Amendment which has been very cogently moved by the noble Lord, and supported by the noble Lord, Lord Diamond. One would have to recognise, and it was inherent in the noble Lord's speech that he recognises, that there might be some circumstances in which it would not be in the public interest to publish the advice. There might be certain circumstances in which the C.I.R. itself might not wish the advice published, and we may be dealing with a wide range of different kinds of revisions. Indeed the device may in some cases be simply, "We agree". We are disposed to accept in principle the noble Lord's Amendment, on the understanding that we can have a look at it and make any changes which we think would commend themselves to the House. But if the noble Lord will leave this with us, we will look at it, and either reintroduce his Amendment or bring it forward in some amended form.
§ LORD BEAUMONT OF WHITLEY
I know that I speak for other noble Lords in saying that we are most grateful to the Government for this welcome thaw in relations. It is good of them to accept the principle. We recognise that there may be occasions when it is not justifiable for the advice to be published, although that was not actually part of my speech, and I am dubious about it. We look forward to hearing the arguments of the noble Lord, Lord Drumalbyn, when he comes back either on the Report stage or if we have consultations between now and Report. In the meantime, I beg leave to withdraw the Amendment standing 72 in my name and that of my noble friends and of my semi-friend.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clause 4 [Use of code of practice in proceedings under this Act]:
§ 6.11 p.m.
LORD BLYTON moved Amendment No. 20:
Page 3, line 21, leave out ("of itself").
§ The noble Lord said: I beg to move the Amendment standing in my name and those of my noble friends on the Opposition Front Bench. Clause 4, as it stands, means that a person or persons could be brought before the court, and the deletion of the words "of itself" would mean that such a person or persons could not then be brought before the court. As I have said before, trade unions do not like the law and lawyers intruding into their affairs, and they have substantial reasons for taking this attitude. This clause deals with the legal status of the code. It is another instance of injecting quasi-communal legislation into our existing industrial tribunals. Here in this clause the courts are enjoined to follow a code which has not yet been seen and no one has had a chance to examine it. It seems to me that a breach of the code will automatically mean a "guilty" verdict for those appearing before the court, just as with the Highway Code in relation to road traffic. Despite the role of the so-called civil tribunal, there is no doubt that powers will exist to fine, attach earnings and imprison if you do not pay for contempt of court. There will be other concepts like inducement, threat to strike, aiding and abetting, together with this code.
§ I hope the Committee will appreciate that the trade unions' history has been built up on voluntary negotiation and settling problems and difficulties by means of negotiating machinery. Also, our experience over the years of how courts have decided against us, and how we have had to fight to get their decisions reversed, does not lead the trade unions to welcome the procedures under this Bill. What will happen is that trade unionists or trade unions will be dragged before the courts, accused of breaking 73 the code of conduct, to which they have never agreed—and by courts weighted against them. Trade unions and persons can be brought before courts and tried by judges and lawyers who are members of the biggest closed shop in this country. We are being asked to pass legislation which will allow a code to be used as evidence before we have a chance to see the code. The Government are asking for a blank cheque.
§ It is quite evident to anyone who knows about industrial affairs that when you get into a position of legally binding codes you get into real difficulties. It is not possible to foresee, and to base a code on the assumption that all eventualities can be foreseen is something that no negotiator on either side of industry can claim. These generalised rules or guidance rules will apply to all unions, as diverse as those of actors, doctors, miners, nurses, teachers, seamen, civil servants and engineers. If the code of conduct is a generalised one, only chaos will result, since conditions are so different, and the National Industrial Relations Court, with the sanctions in the Bill against individuals and trade unions, will create untold trouble.
§ There may be arguments for guidelines, but their intrusion into the enforcement agencies, with the implication that a breach of the code is evidence of culpability, is the reason why it is not possible to accept this state of affairs. The Solicitor General himself said that the code, which nobody has seen, will be taken into account in deciding whether or not a complaint of non-compliance with the provisions of the Bill has been established. The complaint can be about an unfair practice by or on behalf of a union, or about an employer not giving recognition or information; and, as I understand it, it will be a complaint before a civil court. It is quite plain that when the code is to be used as terms of reference, when a charge is being brought not because of an offence against the code, but for another reason, such as an alleged unfair practice, the determination of the charge will in part depend on reference to certain parts of the code of conduct.
§ Surely, in circumstances like this, if the charge is sustained there can be fines, and if the fines are not paid it can mean 74 imprisonment under the civil law. If we are dealing in this instance with civil law, it will be supported by civil remedies: and they are as I have stated. Again, the code, whenever it arrives in the House, will, I hope, come in a form in which it can be amended; otherwise, it will put everyone in a very difficult position, because we shall have to take it whether we like it or not. In a matter of great importance such as this, the Committee should have a chance to amend the code, which is to play such an important part in the courts, when men are to be tried for any offence under this Bill. I say that there will be a lot of strife on this issue in the years ahead, especially in the courts, if this legislation is passed and our people are dragged before the courts in the way I have tried to illustrate. Therefore I move this Amendment in order to minimise the injustice which the Bill will inflict on men and women who in their unions endeavour to raise their standard of life, which is the only way they have of achieving their goal, and because of our total opposition to courts and penal sanctions. I beg to move.
§ 6.21 p.m.
§ THE LORD CHANCELLOR
I am bound to say that the noble Lord, Lord Blyton, has misunderstood the whole picture of this clause. I should like to try to explain it to him, and I hope that I may be successful. I start by saying that he is quite wrong about the lawyers operating a closed shop. They do nothing of the kind. As I said at an earlier stage, the Bar Council has about an 80 per cent. membership. One would very much like it to be wider, but it is in fact purely voluntary. I do not know the position about solicitors, but that is the position about the profession of which I was a proud member until I came here.
The noble Lord was also wrong—I say this by way of preliminary observation—in saying that the Government are asking for a blank cheque. It is of course true that the preliminary draft of the code has not been published, but I hope we have been through that sufficiently to show that it will have been discussed very clearly and fully before it becomes effective and will then have to be endorsed by each House of Parliament. I 75 say this by way of repetition as we have gone through it in debate which I do not wish to re-open. But to say that it is a blank cheque when there is not a cheque and it will not be blank when it is signed, is a misuse of language of a serious kind.
The noble Lord began by saying that trade unions will be dragged before the courts for a breach of the code and there will be a guilty verdict. Under this Bill one cannot be dragged before any court for a breach of the code of practice. The noble Lord did not say—and I think perhaps he should have said—that the words of which he complains have been on the Statute Book now for 40 years, since 1930, in relation to the Road Traffic Acts. They have given rise to none of the difficulties which the noble Lord anticipates.
If he will look at Section 74 of the present Road Traffic Act, which I think was passed in 1960, he will see that it reproduces the words of an earlier Statute, I think the Act of 1930. He will see exactly the same words as are here in relation to the code of industrial practice in relation to the Highway Code, which I hold in my hand. Nobody is dragged before a court for a breach of the Highway Code, but the Highway Code can be used in evidence by either the prosecution or the defence. It can be used in criminal proceedings but no criminal proceedings are contemplated here; and it can be used in civil actions either for the plaintiff or for the defendant.
Let me give an example. Regulation No. 6 is about pedestrians. It says, "Before you cross stop at the kerb." Another one is, "Keep your vehicle in good condition." That is the sort of thing which goes into codes of this kind. The way it works, if I may give an example, is this. Suppose a motorist is being sued for damages for negligence by a pedestrian and the fact be that the pedestrian ran out without stopping at the kerb. The fact that he ran out without stopping at the kerb and that that is a breach of the code can be used in argument or in evidence to show that the motorist was not to blame. Equally, if a motorist is being sued for negligence or is being prosecuted for some offence 76 and it is shown that the accident happened because his vehicle was in a bad condition, that fact can be referred to in argument or in evidence as placing the responsibility for the accident on him.
It is just as likely to be used by a defendant as by a plaintiff. It is just as likely to be used by the defence as by the prosecution and it is very seldom referred to in so many words. It does not hold up proceedings because the contents of the Highway Code are really only the dictates of common sense which every good motorist is supposed to learn before he goes on the road and which counsel and judges throughout the land are perfectly familiar with, so that an actual reference is scarcely ever made to it.
Translating that into this particular Amendment, the noble Lord started with the assumption that it is designed to beat trade unions about the head. I suppose it is no good going on saying to the noble Lord that that really is not the picture. There are of course a number of unfair industrial practices defined in this measure. I see the noble and learned Lord, Lord Donovan, on the Cross Benches. He knows how naughty he was on Second Reading to try to put the number at 179. I make it about 25 possible clauses which are concerned. There is Clause 5 which concerns unfair industrial practices by employers. There are Clauses 5, 12, 15, 20, 31, 44, 68, 52, 55, 53, 92, 93 and 94. Those are all concerned with unfair industrial practices by employers. There are about 12 clauses dealing with trade unions some of which are the same. So it is not 26, but something rather fewer than 25.
§ LORD DONOVAN
One of those clauses contains 40 malpractices. I have the Schedule, but perhaps the noble and learned Lord would like me to send him a copy?
§ THE LORD CHANCELLOR
When we come to those clauses I think we shall have to go into the noble and learned Lord's computation a little more carefully. The fact is that those are the clauses and, unless one calculates in a most extraordinary and unfair way, one does not get anything like the results which the noble and learned Lord seeks to make out. Incidentally, this does not in the main attract a fine. It attracts a claim for compensation and the noble 77 and learned Lord knows that that is not a fine. It is not a tort; it is a breach of statutory duty coming before a separate series of tribunals. It does not contain the solatium for injured feelings which damages for tort normally contains. It contains compensation based on actual loss with a ceiling attached. It is ultimately for the House to decide whether the noble and learned Lord was on his usual form when he made those rather wild observations on Second Reading.
§ LORD DIAMOND
May I interrupt the Lord Chancellor for advice? When he says that there is a ceiling, does he mean that there is a ceiling in the case of only registered unions or a ceiling in all cases?
§ THE LORD CHANCELLOR
It means a ceiling in the case of unfair dismissals, a ceiling in the case of registered unions, but not, I think, in all cases. In any case, it is a very different picture from that which the noble and learned Lord painted on Second Reading. It is either in the Bill or not. The code does not attract any new unfair industrial practice, either to the employer or to the employed. It works just as the Highway Code does.
If I may now come to an example, under Clause 54 employers are under a duty to disclose information, and that duty is defined in rather general terms in that clause for the purpose of enabling a union to carry out collective bargaining. If you look on to Clause 98 you will see that the union has certain rights in court if the employer fails to disclose information. The code of practice will presumably spell out a little more definitely the kind of information required, and when the trade union takes the employer to court for failing to disclose information it will refer to the code of practice with regard to the information which is required and say: "I want an order, under Clause 98, to compel you to perform your duty, under Clause 54, because this is what the code provides and you have not gone anywhere near it."
The effect of the noble Lord's Amendment would be to deprive the trade union of that right. If a good practice of collective bargaining is consultation 78 about matters likely to affect the workers, and a trade union is accused by an employer of an unfair industrial practice, it will be able to draw attention to the employer's failure to perform his obligations under the code, not that that is itself an unfair industrial practice, but as affording an explanation of why the union has done certain things of which the employer has complained.
The function of the code of industrial practice is to operate exactly as the Highway Code does in highways litigation, and to pass an Amendment of this kind would be to deprive it of its essential function, which is not to lay down legal obligations, but to show exactly what a reasonable employer, a reasonable shop steward, or reasonable union might do in a given set of circumstances, and to give the kind of usually commonsense advice that the Highway Code does to motorists, and has done for forty years.
To try to "scarify" the issue, as the noble Lord has done, by assuming the most impossible motives, and making the most wild statements about what the Bill contains, or what the motives of its sponsors may be, does not stand up in the light of the experience of courts extending over 40 years, that in certain circumstances a code of good practice is an aid to justice when offences or wrongs, or matters of that kind, come before it in order to see in some detail what reasonable people do, without giving it the actual force of law. That is the purpose of the code. It would be deprived of its function if the Amendment were passed.
I hope that, having had that explanation presented to the Committee in good faith, the noble Lord will think it right not to press this Amendment. We are not asking for a blank cheque. We are not creating by the code any new offence. On the contrary, it is a weapon of defence, a shield just as much as it is a spear, and it is applicable to the employer every bit as much as to the trade union. In each case the court will be able to draw the inferences from unreasonable behaviour, whichever side has been guilty of it. It is the very opposite of what the noble Lord thought; the opposite of a legally enforceable code, part of the law. It is, on the contrary, a guide to reasonable conduct of the kind that the Highway Code has already proved such a success in another field.
§ 6.35 p.m.
§ LORD STOW HILL
Unfortunately I did not hear the whole of my noble friend's argument, but I know what is in his mind. Would the noble and learned Lord, the Lord Chancellor, not agree with me that he has not really given the whole picture, which my noble friend has in mind, and which causes him the anxiety which he has expressed. The noble and learned Lord drew an analogy from the Highway Code. The Highway Code contains certain directions and recommendations, and specifies certain desirable practices. If proceedings, either in a civil court or in a criminal court, are instituted against a motorist, and it is demonstrated that he has transgressed any of the directions or prohibitions in the Highway Code, supposing there is no obvious explanation as to why he came to transgress that particular requirement in the Code, it is normally the case that the court comes to the conclusion that he was guilty of blame in a civil sense, or that he was guilty of the crinimal offence with which he is charged.
I know that what makes my noble friend anxious is this: we do not know what those prohibitions, recommendations or lines of guidance will be when they ultimately find their way into the code of conduct. There is a controversy between the noble and learned Lord, the Lord Chancellor, and the noble and learned Lord, Lord Donovan, about the number of unfair industrial practices which are created by this Act. My arithmetic was much closer to the noble and learned Lord, Lord Donovan, than to the noble and learned Lord, the Lord Chancellor. But never mind who is right. Supposing one takes an example.
The noble and learned Lord, the Lord Chancellor, referred to Clauses 92 to 94. Clause 94 contains a wording which creates an unfair industrial practice in the case of any person, that is to say a registered or unregistered trade union, or any person enacting on behalf of either a registered or unregistered trade union, or any person acting on nobody's behalf if, in contemplation or furtherance of an industrial dispute, he takes certain steps involving a person who is an extraneous party in relation to that industrial dispute. Nobody knows so far whether the code of practice will have any impact, either directly or by implication, upon 80 the form of that unfair industrial practice.
We are going along, taking the necessary steps to enact the various clauses of this Bill, including this crucial Clause 4, without knowing, for example, in relation to Clause 94 what may be the effect of the code of practice. For all we know when it makes its appearance it may have a direct relevance to Clause 94, and if it is asserted against any person that he took the steps described in Clause 94 reference may be made to some provision in the code of practice, the form of which we have no idea at the moment, and it may produce the result that a person who otherwise would escape from the consequences of Clause 94 (1), and be able to establish that he was not within his toils, because of the application of the code of practice, he may find himself directly involved in liability for a substantial sum of compensation.
It is in those circumstances that my noble friend has drawn the attention of the Committee to this particular wording in Clause 4; and if I may respectfully submit to the noble and learned Lord, the Lord Chancellor, it really is not an adequate answer to my noble friend's anxieties to say, "Oh, well, this is just like the Highway Code that we know all about, which has its application in an extremely simple context, which everybody can understand; its parlance is simple, and conformity with its practice is something which every motorist has in mind every five minutes of the day that he sits in his motor car."
The context we are discussing is really a hundred miles away from that. We have a highly complex system of new, unfair industrial practices which have hitherto in no comparable form ever made their appearance in any Statute that we have ever had to consider; they are very large in number; we do not know what the code of practice is going to be, and we have not the remotest idea what changes in effect—because that is what it comes to—the wording of that code of practice may bring about in the clauses which we have to administer later, if and when this Bill becomes law.
I submit to the noble and learned Lord that, if we are going to pass Clause 4, we should do so in the full knowledge 81 of what is involved. When we see the code of practice we may find that when we have to apply the provisions of these later clauses, of which I have given an example, the result which will emerge on a given state of facts, if we simply look at the wording of Clause 94 by itself, will be quite different from the result which will emerge if we apply in relation to Clause 94 the provisions of this unknown code which have to be taken into account by the court; and which, if there is transgression against the provisions which is unexplained, presumably will produce a liability which the actual wording of Clause 94, without the application of the code of practice, would not produce. I should have thought that that was a very undesirable situation in which the Committee is asked to pass the provisions of Clause 4 as they stand.
I think—and I hope that the noble and learned Lord will agree with me—that what I have ventured to add to his explanation is correct. We are all very grateful for his explanation, which was graphic and vivid and coloured by phrases which we delight to hear from him, over and over again; but, while we are grateful to him for that, I submit with respect that it was rather woefully incomplete, and I hope he will adopt my additions, at any rate as completing an insufficient account of the situation with which we have to deal.
§ BARONESS GAITSKELL
May I add one or two sentences in this debate? I think it is not only confusing for us here to compare the Highway Code with this prospective code of practice, I think it adds suspicion. It is almost an insult to compare the Highway Code with what is going to be a code of practice in such an area as industrial relations, such a vast area involving so many human attitudes, so many complexities. It not only confuses us, but makes us suspicious of the intentions of the Government. It is no help at all continually to compare what this code of practice is going to be with the Highway Code.
§ 6.44 p.m.
§ LORD DIAMOND
I was going to suggest that perhaps the noble and learned Lord would wish to reply to some further questions I have to put to him at the same time as he replies to others. If it is convenient to the Committee, perhaps 82 I might intervene at this stage and pick up what my noble friend Lord Stow Hill—I was wondering whether he is still a "learned" noble friend, but I gather not—
§ LORD DIAMOND
—what my noble friend Lord Stow Hill said about the noble and learned Lord's explanation being woefully incomplete. I wanted to add to my sense of woe. But, first of all, it is only right that I should thank the noble and learned Lord the Lord Chancellor both for the explanation he gave and for the fact, which I think is very material indeed, that he demonstrated by his presence what we are trying to prove throughout the discussions on this Bill: namely, that it is a legal tangle which any ordinary person cannot follow—indeed, most Members of your Lordships' House cannot follow it, judging by the discussion which has already taken place; and that we need, not a Minister in charge of the Bill to reply, but the noble and learned Lord the Lord Chancellor himself. I repeat, it is a great courtesy of him to explain it, but I think it is was perfectly obvious that the kind of explanation he gave could have come only from somebody with the deep legal knowledge and experience of somebody such as the noble and learned Lord himself. That is indeed the first point I want to make about the whole of this legal framework to the Bill, evidenced by this particular Amendment which goes to the heart of it.
Indeed, if I wanted to add to that point, which I do not think I need do, one has only to refer to a problem which is of some little interest to an accountant such as myself; namely, do you add up the figures and arrive at 179, as the noble and learned Lord, Lord Donovan, said, he being the Chairman of the Royal Commission and being, as I have indicated before, in my view, perhaps the most authoritative of your Lordships present on this particular field; or do we take the view of the noble and learned Lord, the Lord Chancellor, and say that if you do your sum a different way it adds up to only 26; or do you take the view of my noble friend the ex-Attorney General, as well as being ex-Home Secretary, who has just given us his view, that 83 it may well be that the figure is somewhere between the two, but he leans more towards the noble and learned Lord the Chairman of the Donovan Commission, rather than the noble and learned Lord the Lord Chancellor?
I have had to attach my signature with the responsibility that goes whenever a chartered accountant attaches his signature to a sum, but I should not like, for any fee in the world, to give my professional view on what the answer to that particular sum is. We are again in a situation—although I have always previously been perfectly prepared to accept the authority of the noble and learned Lord, Lord Donovan—where it is necessary for the Lord Chancellor himself to explain the meaning of a particular part of a particular clause of this Bill, and where we have a wide difference on what ought to be a perfectly simple matter of addition.
May I now turn to some of the things the noble and learned Lord said, supporting his case—which did not go to the heart of his case but with which he supported his case—because unless I do, and unless I make clear to him the vast difference in approach between what he said and what we feel and believe on this side, he will not be able to direct his mind to the real anxieties which we have. The first thing he said—and my noble friend Lady Gaitskell picked on it with her usual capacity for going to the heart of a difficult and troublesome matter—was that a good analogy (I think that is what the noble and learned Lord said, a good analogy) was the Highway Code. I cannot accept that. We are always in difficulty in arguing by analogy, but I cannot accept that that summons up in our minds a kind of picture which is reliable. The Highway Code, as has already been said, is a matter of simplicity—such simplicity that it is capable of being understood by children, and indeed is being altered in respect of that part which applies to children at this very moment.
Secondly, it is not a formulation of a new pattern of behaviour to which it is hoped both sides of industry will subscribe in the future, and to which no doubt the best on both sides already do subscribe; but it is the description of existing practices which everyone knows, 84 and without which nobody can even pass his driving test to start coming on to the road at all. Therefore it is a totally different matter, quite apart from its legal implications. We give ourselves no advantage by attempting to relate the two and saying that the code of practice is just as simple and as easy as the Highway Code; that any school child can understand it. Far from it!
The second thing I want to refer to, on which the noble and learned Lord commented, is the concept of the blank cheque. Again we are in the realm of analogy. I subscribe entirely to the point made by my noble friend Lord Blyton, that Clause 2 of this Bill is giving a blank cheque. We have passed Clause 2, which says that it shall be the duty of the Secretary of State to prepare, in draft, a code of practice. We have passed that, and that means that the Secretary of State has to do that. Of course, nobody knows what is going to be in the code of practice. We have authorised the Secretary of State to prepare it. As I understand it, we cannot now go back on that clause and say that if we do not like the contents of the code of practice we shall not have a code of practice at all. We cannot say that. We are committed to a code of practice. So far as I can see, that is the same thing as giving blank authority or, for convenience of description, a blank cheque. That is the situation we are in. I want to move from there to indicate why I do not think the explanation given by the noble and learned Lord was at all adequate. It has not removed our anxieties. I hope that he will reply to the point put by my noble friend Lord Stow Hill, as well as attempting to deal more fully with the debate and with what my noble friend and I are both saying.
The second of the difficulties here is that there are words used which we cannot relate to our experience of the Highway Code, because this Bill is not truly analogous, as I have explained, to the Transport Act to which the noble and learned Lord referred. I am advised that the words "of itself" must mean something. Of course, if the noble and learned Lord says I am wrong, that they mean nothing, then I shall be utterly delighted and invite him immediately to remove superflous words from the clause. But if they mean something, as I am advised they do, they mean that, although a failure of itself cannot render a man liable 85 to any proceedings, two failures or three failures or four failures, by implication, would. That is what I am advised. It is not for me to read statutes and offer comment to your Lordships' House as to what they mean. I have taken advice, and that is what I am advised those words mean. If they have any meaning, they can, as my noble friend Lord Blyton suggested, have that effect by implication. Secondly, they have the effect which my noble friend Lord Stow Hill made absolutely clear with regard to a later clause in the Bill. Therefore there is no need for me to add to that.
Although I recognise immediately that the Highivay Code is related to proceedings which could be criminal, and this Bill is related to proceedings which are, I would say, quasi-criminal—that is, not criminal, and therefore civil—nevertheless the clear transgression of the code of practice would be a relevant consideration in proceedings brought under any part of the Bill and, therefore, would affect the amount of damages. The amount of damages in the case of an unregistered union would be unlimited. The damages may be damages on an individual. If an individual does not pay, and if the court is satisfied that he can and should pay the damages, it can send him to prison for contempt of court. So the distinction is not all that great. We are back again in the situation that these words produce a position in which, clearly, an individual may be prejudiced in relation to other proceedings under the Act and may at the end of the day find himself in prison.
The real objection we have is one of principle. The noble and learned Lord said that this weapon is a shield as well as a spear. The noble Lord looked upon it as a weapon in the warfare between the two sides which we seek to eliminate. We want no kind of warfare at all; we want industrial co-operation, and we do not believe that spears or shields are relevant. We are not seeking the protection of this kind of legislation for industrial employees against industrial employers. We would rather have none of it and go by co-operation.
The noble and learned Lord said that the code of practice is an aid to justice. We look upon the code of practice as being an aid to co-operation, not an aid to justice, in the sense of what one gets after going through a variety of courts, 86 and finally at the end of the day getting the final answer, wherever that may be. I am bound to say to the noble and learned Lord that we are far from satisfied on this point. There is no need for me to say any more than that, because the noble and learned Lord has indicated that he is about to get up and offer us the benefit of his further advice.
However, before I sit down, I am bound to say, in relation to what one of my noble friends, Lord Stow Hill, very wisely said, that we are dealing with the legal effects of a code which we have not seen. Clause 4 is very material to that point, and I am bound to say to those in charge of our proceedings in this place that it is almost inevitable that when we see the code of practice we may feel bound to ask your Lordships to reconsider this code in the light of that knowledge, not in the light of some supposition of what we think is in it and what they think is in it when nobody knows what is in it. Therefore on Clause 4 we would wish to seek advice on recommittal, and I say no more than that at that point. I should be grateful to the noble and learned Lord if he would help to remove our anxieties.
§ 6.59 p.m.
§ THE LORD CHANCELLOR
The truth is that if one starts with a proposition that one is going to use emotional language like insult where no insult is intended, or woe where there is no ground for any woe, or suspicion where the obvious intention is as open as it can be, it is rather difficult to conduct a debate at all. The fact is that none of the suspicions which the noble Baroness, Lady Gaitskell, asserted in general terms is justified. There is no insult to anybody in introducing language which has been on the Statute Book for 40 years. I ventured to refer to the Highway Code because I was speaking to the Amendment. We have dealt with the code of practice for nearly a week now. Its genesis is the consultation which will precede it, the opportunities for Parliamentary discussion. I had rather hoped that some of the discussions which we have had during the past week might have sunk in. Therefore I repeated them. I was speaking to the Amendment, and only to the Amendment, which is to leave out "of itself". It was an Amendment of a legal kind and I spoke to it.
87 I said, in explanation of why I thought the Amendment was based upon a misunderstanding, in reply to the noble Lord, Lord Blyton, that the Highway Code in the Road Traffic Act was not a bad analogy. I meant what I said. The fact is that it is not only an analogy, but the very words which are in Clause 4 are in the Road Traffic Act in this context, and it has given rise to none of the anxieties which noble Lords opposite have expressed in relation to this code of practice. When the noble Lord says that he wants the code of practice to be a code of co-operation we should all agree. We do not want it to be used in legal proceedings because we hope that there will be no legal proceedings. We do not want it to be used as a weapon of warfare because we do not want there to be any warfare. But the fact of the matter is that the Bill as it is drafted explains the circumstances in which it can be used as evidence or by way of argument in legal proceedings. It was in that context and in no other that the Amendment was proposed, and it was in that context and in no other that I was referring to it. So much for that point.
The noble Lord, Lord Diamond, has hit upon rather an ingenious device. Because the Lord Chancellor gets up to speak on the direct invitation of a noble Lord opposite and is asked to play the kind of role played by the Solicitor General in another place and to give advice on matters of legal proceedings, the noble Lord said "Well, that proves it is a legal Bill". That is the sort of argument which we are faced with in this Committee. If we do not speak then it appears to be the case as the noble Lord, Lord Stow Hill, last week said, that all the words of a Statute and their meaning are necessarily legal points because it falls to a court to construe them and therefore the Lord Chancellor ought to speak on every clause. But if, after seven days' debate the Lord Chancellor ventures for the first time to reply to an Amendment which has directly to do with the legal effect in a court of law then that is said to prove that the whole Bill is a legal Bill. That is the standard which the Opposition are putting up in our rather protracted discussions; but the fact is that I intervened because this was a legal Amendment and because it 88 was introduced with the object of affecting the law. It seems to me that after seven days I am at least justified in saying that the fact I have only spoken once shows that it was not a legal Bill at all, but I will not descend to that level of debate.
Let me now deal with one or two of the last observations of the noble Lord, Lord Diamond, before I proceed to the noble Lord, Lord Stow Hill. Of course the words "of itself" mean something. They mean exactly what they have meant for 40 years since they appeared in the Road Traffic Act, and if the noble Lord, Lord Diamond, thinks that what they mean in the Road Traffic Act is that if there are three breaches of the Highway Code that constitutes an offence—and he said he was advised that such was the case—it seems to me to be pretty peculiar advice because it is not the case at all. As I tried to explain in my first speech, it means that although not keeping your vehicle in good condition does not of itself render you liable to somebody else, if somebody can show that he has suffered personal injuries as a result of your vehicle being in bad condition—for instance, by not having properly maintained brakes, that in conjunction with the whole context may render you liable. Equally, if a person does not stop at the kerb and look both ways before running out into the road and he brings an action for damages, that fact may be referred to, although not in itself either a ground of liability or defence. It may be referred to by either side as giving some grounds why that person should be debarred from receiving the whole or some part of his compensation.
§ LORD POPPLEWELL
The noble and learned Lord refers to the question of motoring offences and unfit brakes. That of course would carry an endorsement. Two endorsements are totted up and, on the third endorsement, his driving licence would be taken away. Is there anything in the Bill which is comparable to the analogy being put forward by the noble and learned Lord?
Tim LORD CHANCELLOR
The noble Lord is not following the argument. The fact is that there is a certain offence under the Road Traffic Act of having unfit brakes. I think it is under the 89 Vehicles (Construction and Use) Regulations, but, as I said in my opening remarks, there is nothing in the code of practice which by itself can constitute an unfair industrial practice, or anything else, and I hoped that by this time this would be absolutely plain.
The noble Lord also said that at the end of the day these breaches would land a man in gaol. So far as I can see, that simply cannot happen under this Bill. We are abolishing imprisonment for debt, so far as I know, before the Bill is likely to come into force, under the implementation of the Report of the Payne Committee. I am speaking now without having checked the Bill for this purpose and therefore I may be in error, but I think not; no other sentence of imprisonment can be imposed except for a deliberate disobedience of an order of the court, at which stage the code of industrial practice would be neither here nor there.
I do not want to pursue analogies beyond what they will bear, and I have explained exactly the context in which I was using the analogy of the Road Traffic Act. I was using it because exactly the same phrase which the Amendment seeks to omit is used, and has been used for 40 years, in that Act, but the analogy is capable of wider application. It is of course true that a child and a novice motorist are supposed to learn bits of the Highway Code: the child should learn the part referring to pedestrians, and the motorist the use of a motor vehicle on the roads. But the same is true of industrial relations, except of course that children do not usually take part in collective bargaining. The code of industrial practice will have to be studied by people who want to take part in collective bargaining. They will want to know what are the best practices which already exist. I was interested to note that the noble Lord, Lord Diamond, expressly pointed out that in almost every case the code of industrial practice will in fact reflect the best practices of trade union officials and trade unions on the one side and of employers on the other. That is exactly what an employer who is perhaps not quite so experienced, or the union official who has not got the experience of some noble Lords here, will want to study so as to attune his own practice to that of the best.
90 I do not want to go back over the analogy of the blank cheque. That was not my analogy. That was the analogy of the noble Lord, Lord Blyton, and it is a bad analogy. We have already explained why. There is no cheque being signed by this Bill in relation to the code of industrial practice. In fact, the Secretary of State is being asked to write a cheque at a future date, and if we sign it it will be signed by Parliament and not by the Secretary of State. So if the analogy were a good one it would prove exactly the opposite of what the noble Lord, Lord Diamond, sought to achieve.
§ LORD SLATER
Is the noble and learned Lord not getting off the track? This Industrial Relations Bill seeks to take under control the relationship of workpeople and management within this country by drafting a law of the land. At the moment we are free people; we are free within industry; we are free to negotiate wages and conditions. But under this Bill legal sanctions are to be imposed by the Government against people who work in industry. The noble and learned Lord is getting off the track in regard to his own Bill.
§ THE LORD CHANCELLOR
I disagree with almost every word of that, but as it has no relevance to the point I was desiring to make, perhaps I may be allowed to pursue the point I was actually making, and I will come, if I may, to the speech of the noble Lord, Lord Stow Hill. The noble Lord, after having complained that my analogy with the Road Traffic Act was a false one—a point with which I think I have dealt adequately—then proceeded to try to draw some comfort for his noble friend Lord Blyton from the terms of Clause 94 of the Bill. Of course we shall discuss Clause 94 when we come to it, but I must say that if I had been trying to select a clause in the Bill which was inappropriate to the argument of the noble Lord, Lord Stow Hill, he could hardly have selected a better one for my purpose. To begin with, the clause is in itself a clause which deals with a situation already against the law of tort as the law stands unamended, without this Bill at all. If he will refer to the recent Torquay case or the Stratford v. Lindley case, he will see that in the main that is what Clause 94 is dealing with, and in fact all he is doing—although we will discuss it in greater 91 detail when we get there—is to transfer Stratford v. Lindley and the Torquay v Cousins cases from the ordinary courts of law to the new industrial tribunal under the title of the code of unfair industrial practice.
§ THE LORD CHANCELLOR
If the noble and learned Lord will allow me to conclude this point I will gladly give way. The noble Lord, Lord Stow Hill, says that he does not know what is in the code of industrial practice, which, within the severe limits which I have pointed out, is true. But what he did not say was that it is quite clear that the extraneous party who is referred to in Clause 94 of the Bill is defined most precisely by subsection (2) of that clause, and, therefore, whatever is in the code of industrial practice, it is plain enough from the clause we are now discussing—and Clause 94, which the noble Lord, Lord Stow Hill, was discussing—that the code of industrial practice, whatever it contains, cannot override subsection (2) of that clause. I am sorry to have kept the noble and learned Lord waiting, but he will understand that I wanted to conclude that point.
§ LORD GARDINER
I understand that the noble and learned Lord's point in regard to Clauses 92 to 94 is that to induce a breach of contract is actionable anyhow by our law.
§ THE LORD CHANCELLOR
No; the noble and learned Lord is quite wrong. I was dealing with Clause 94 as the noble Lord, Lord Stow Hill, was dealing with it, the introduction of extraneous parties in furtherance of a trade dispute, and that is the Stratford v. Lindley and Torquay v. Cousins state. I did not mention Clause 92 at all, because the clause to which Lord Stow Hill was referring was Clause 94. I was dealing with that in isolation. No doubt we can deal with t he other clauses at some stage when we reach them.
§ LORD GARDINER
With great respect, even that is not so, is it, because our present law in this field is subject to a defence of justification; it is only wrong to induce breach of contract if there is no justification. For some reason that I have never understood, this ordinary defence which everybody has at 92 present is not in the Bill at all. The noble and learned Lord may remember that the leading case of justification was Brimlow v. Casson when the defendant, then Mr. Dennis Casson, was appearing for Actors' Equity, and induced chorus girls to break their contracts with the management on the ground that they were being paid so little that they were being driven to prostitution, and his defence of justification succeeded. I think I am right in saying that the noble and learned Lord, Lord Donovan, pointed out on Second Reading that this was one of our surprises, that the defence of justification appears to be removed and is not there in the Bill.
§ THE LORD CHANCELLOR
I think the noble and learned Lord has wholly missed the point. I am not sure whether he was here when the noble Lord, Lord Stow Hill, spoke. If he will recollect the noble Lord's point, which was the only point I was dealing with and the only point relevant to this Amendment, although much of what the noble and learned Lord says might be germane to those clauses when we come to them, Lord Stow Hill's point was that we were discussing here the code of industrial practice alone, and he sought to give an example from Clause 94 as to why the words "of itself" and the other words should be omitted from that clause. So far as I know, the presence or absence of the defence of justification, across the board, to unfair industrial practices has no relevance that I can see to that particular point. Obviously, if the noble Lord wants to raise the point, it would provide an interesting debate at a later stage of the Bill. But I was solely concerned with answering the questions which the noble Lord, Lord Stow Hill, and the noble Lord, Lord Diamond, had raised. At the end of the day, I would submit that there really is nothing left for me to answer. This is a method of approach to a code of good ethics which has been tried in one field and found successful and which we are seeking to introduce into another.
I absolutely agree with the noble Lord, Load Diamond, that one hopes that it will be followed irrespective of any legal proceedings, because the object is to provide a code of good behaviour in order 93 to avoid legal proceedings and not to incur them. But the clause also provides, as the Highway Code does, that if by any mischance, human nature being what it is, legal proceedings result, either by a trade union or by an employer, then the bad behaviour under the code can be referred to if and in so far as it is relevant to the issue which has to be tried. That it seems to me, is something which the Committee ought to adopt and to which we at any rate attach importance. Therefore, although I have done my very best to explain to noble Lords that their suspicions are wholly unfounded, if the noble Lord, Lord Blyton, does not in fact see fit to withdraw his Amendment (which I still hope he will because I have tried to answer the arguments in a reasonable spirit), I shall ask my noble friends to vote against it.
§ 7.20 p.m.
§ Lotto DAVIES OF LEEK
I am sorry to be persistent about this, but this is a point of relevance and of some moment to democracy. We are being asked—despite the brilliance of the legal argument (I do not pretend to be able to contend with legality, but I want to follow the meaning of words) to agree to something—and we have even gone up to Clause 92 and Clause 94, which I have read, which has torts and offences in it, and wrongs which can result in some cases in imprisonment and fines. What Clause 4 says is:any such code of practice shall be admissible in evidence"—We do not know what the code is, but we are agreeing to-day that it will be admitted in evidence. Secondly, we agree in (b):any provision of such a code of practice which appears … relevant"—I am omitting words to make for clarity,to any question … by the Court or tribunal in determining that question.In determining what question? In determining the question whether proceedings shall be taken. So far as I am concerned, despite listening to all the legal arguments, this Committee is being asked to agree to certain phraseology that implies that we are making it possible for a member of a trade union to have action taken against, him by reason of something in a code of which we know 94 nothing. In addition, I consider that the noble and learned Lord the Lord Chancellor has no right to make legal statements if he, himself, does not know what is in the code.
§ BARONESS GAITSKELL
As the noble and learned Lord the Lord Chancellor referred to my intervention, may I explain that I did not use the word "insult" in any emotive sense at all. I used it in an intellectual context. To compare the Highway Code with the industrial code of practice seems to me absolutely ridiculous, because they have nothing in common, apart from the word "code". That is what I meant. I did not use the word "insult" in any emotive sense.
§ THE LORD CHANCELLOR
I shall try to remember that the next time I use the word myself. I should ask the noble Baroness to remember that Section 74 of the Road Traffic Act, 1960, provides in these words: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.I was referring to it—whether by way of insult in a non-emotive sense or otherwise—as simply being the answer to the Amendment in question.
§ 7.23 p.m.
§ LORD POPPLEWELL
The noble and learned Lord draws attention to the Highway Code. We have no knowledge of this code; it has not been debated by Parliament, but is simply brought before Parliament and we are told that we have to accept it, and there is no opportunity of amending it. Looking at society today, and in particular industrial relations, surely that is not the way to do it. Nothing has been attempted on the other side by way of reference to malpractices in industry to justify bringing industrial relations under legal jurisdiction in this fashion.
The noble and learned Lord referred to the Highway Code and "unfit brakes". In the Highway Code there are various offences that carry endorsement of a licence, and ultimately disqualification. The noble and learned 95 Lord mentions "of itself" as being in the Highway Code. If someone was prosecuted, or brought before the N.I.R.C. for offences, would it be possible for any penalties awarded to be totalled up, as in the Highway Code? These are important matters which should be fully discussed in Parliament before any question of a code of practice, which we are not able to debate, and not able to amend, is thrust upon us. We are entitled to some kind of information on this aspect.
§ THE LORD CHANCELLOR
I will try to answer. There is no totting up in this Bill at all, and there cannot be under the code of practice. The second proposition is that there is no totting up in the Highway Code either; it exists solely in offences scheduled to the Road Traffic Act itself. In so far as there is an analogy to that extent—and I think that is exactly the point at which the analogy breaks down—that is paralleled by the fact that the only unfair industrial practices are also in the Bill, and cannot be in the code.
§ LORD BERNSTEIN
Can I address myself to the non-legal members of your Lordships' House? The legal arguments were fascinating, especially for those of us who saw in the Bill a new exercise, and perhaps a new revenue for lawyers. I suggested earlier that Clause 3 might lead to the courts. My noble friend, Lord Diamond, made the same point. It seems to me that we are back to square one, where we started last week.
Let us say it is not a legal Bill. Let us say it is a Bill which has legal implications. Let us consider these implications. We have had three eminent lawyers offering views. Which of those views do laymen accept? The noble and learned Lord the Lord Chancellor had a variety of defences to the clause. May I tell you a story?—no insult to the noble and learned Lord. Some of my best friends are lawyers. Vicky told me this after listening to a long speech at a conference. I asked him his view of it. He said that it reminded him of a Hungarian meeting another Hungarian in Budapest. One said to the other. "Can you find me a one-armed lawyer?" His friend replied. "I know international lawyers, criminal 96 lawyers, chancery lawyers, but not a one-handed lawyer. Why?" He said, "I have been involved in legal troubles for a long time. I go to lawyers and they say 'On one hand this, and on the other hand, that'." That is how all this argument sounded to me.
§ LORD DIAMOND
I think that none of your Lordships will envy me my present position of having to recommend to my noble friend Lord Blyton, in the light of this very difficult debate, what would be the most helpful course to take. I have long since learned that when, as a layman, one is dealing with matters which are of considerable legal impact and complexity, one is very ill-advised to jump to a conclusion immediately, especially where there is a conflict of legal advice. Therefore. I am not anxious to invite my noble friend to press this to a Division at this moment, as I would be doing if we were all absolutely certain what the position is.
Secondly, I am bound to say to your Lordships that I think we are making ourselves look simply ridiculous by having all this difficulty (even though we are assisted by the finest legal brains in the country) which centres on a procedural matter; namely, that we are being asked to give views which must have relevance to a particular document which is not before us. I cannot imagine in any other walk of life anybody being prepared in these circumstances to make the responsible statements that should be made—certainly by the noble and learned Lord the Lord Chancellor, and all those who are engaged in the legal profession—on this issue.
For those two reasons. I think we should be far more sensible to consider very carefully what has been said—I shall certainly need to take further advice—from the legal point of view, and to wait until we have the code of industrial practice, which I am sure we will have by the time we come to the Report stage, and at that point seek to have this clause recommitted so that we can reconsider this Amendment in the light of some established fact, instead of all of us wandering in the dark and making ourselves look less than responsible to the outside world. For those reasons, without asking for any undertaking as to procedure (because I know it is not 97 the time to give that undertaking) I am going to ask my noble friend not to press this particular Amendment to a Division at this point in time.
§ Amendment, by leave, withdrawn.
§ LORD DIAMOND
It is not for me to say, but I understood it was your Lordships' desire that we should at this point of time move on to other business. I have therefore kept my remarks as short as I can, to be not too long after 7 o'clock.
EARL ST. ALDWYN
I was not absolutely sure whether the noble Lord wished to have a further discussion on the next Amendment.
§ LORD DIAMOND
I am only too ready to discuss the next Amendment, and whether the clause shall stand part, which is the further Question to follow that; but both will be substantial discussions.
§ THE LORD CHANCELLOR
I thought Amendment No. 21 was really part of No. 20. I thought it was part of the same Amendment, and that Amendment No. 20 was paving the way to No. 21.
§ LORD DIAMOND
No. I am grateful to the noble and learned Lord, but there is a different point of view and a matter of very considerable substance, and we do not need to be assisted, if I may say so, to the extent we have been assisted so far, in coming to a conclusion on the next Amendment and on the Question, Whether the clause shall stand part.
§ House resumed.