Lords Sitting of 6 May 1971

Preamble
The House met at three of the clock:
The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Blackburn.

LANCASHIRE COUNTY COUNCIL (GENERAL POWERS) BILL [H.L.]
Read 3a, and passed, and sent to the Commons.
SOUTHAMPTON CORPORATION (SOUTHAMPTON COMMON) BILL [H.L.]
Read 3a, and passed, and sent to the Commons.

SUNDAY THEATRE BILL [H.L.]
3.7 p.m.
BARONESS LEE OF ASHERIDGE: My Lords, I beg leave to introduce a Bill to permit and regulate the opening and use of theatres on Sundays, and for purposes connected therewith. I beg to move that the Bill be now read a first time.
Moved, That the Bill be now read 1a.—(Baroness Lee of Asheridge.)
On Question, Bill read 1a, and to be printed.

BUSINESS OF THE HOUSE
VISCOUNT GOSCHEN: My Lords, on behalf of my noble friend the Leader of the House, I beg to move the Motion standing in his name on the Order Paper. The object of the Motion is to meet the convenience of those interested in the Bill.
Moved, That leave be given to the Baroness Tweedsmuir of Belhelvie to advance the Second Reading of the Education (Scotland) Bill from Friday, the 21st, to Monday, the 10th instant.—(Viscount Goschen.)
LORD BEAUMONT OF WHITLEY: My Lords, I wish to give vent to a slight feeling of reservation about this. Not
452
only is this the third day on which this Bill has been on the Order Paper, but it is certainly not for the convenience of all those concerned. For instance, my noble friend Lord Thurso, who lives in the furthest North of Scotland—and this is a Scottish Bill—is unable to get to your Lordships' House for Monday's business without leaving quite early on Sunday; and as a result he will not be able to take part. I realise that it is not possible to please everyone, but I should have thought that a Scottish Bill of such a highly contentious nature might have been taken in the middle of the week.
LORD BALERNO: My Lords, may I congratulate the Leader of the House on this change of date, in that he has recognised that the date at present on the Order Paper coincides with the meeting of the General Assembly of the Church of Scotland?
VISCOUNT GOSCHEN: My Lords, I am sorry if it is impossible for the noble Viscount, Lord Thurso, to be present, but in these matters it is very difficult to please everybody.
LORD SHEPHERD: Then why not withdraw the Bill? That would be the best thing.
On Question, Motion agreed to.

INTEREST ON DAMAGES (SCOTLAND) BILL
Read 3a, with the Amendments, and passed, and returned to the Commons.

BUSINESS
VISCOUNT GOSCHEN: My Lords, perhaps I might remind the House that the Committee stage of the Industrial Relations Bill will be adjourned at approximately 7 o'clock, when the Committee stage of the Law Reform (Miscellaneous Provisions) Bill will be taken. Perhaps I might also remind your Lordships that dinner will be available this evening.
LORD PLATT: My Lords, at what time will the people who are interested in the Law Reform (Miscellaneous Provisions) Bill dine?
VISCOUNT GOSCHEN: My Lords, I imagine that the noble Lord, Lord Platt, or any other noble Lord, will be able to go to the Bishops' Bar and eat what is sometimes described as a light or a heavy snack; or, alternatively, can have an early or a late dinner.

INDUSTRIAL RELATIONS BILL
3.11 p.m.
THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN): My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
Moved, That the House do again resolve itself into Committee.—(Lord Drumalbyn.)
LORD SHACKLETON: I wonder whether the noble Lord is ready yet to go into Committee. There seems to be rather a shortage of noble Lords on his side of the House. I wonder whether they are seeking to get their numbers more reasonably into relation to the size of the Opposition, or whether they are queueing up for the dinner break. I take it that, despite this, the noble Lord wants to make some progress, and it may be that he thinks that with fewer interventions from that side we shall be able to go on faster. But some of those noble Lords who are on the Minister's side of the House and who do stimulate the Opposition are present.
LORD DRUMALBYN: My Lords, as they used to say in another place, I think we had better see how we get on.
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 53:
After Clause 5, insert the following new clause—
Modification of rights by agency shop agreement
".—(1) Where an agency shop agreement is for the time being in force, a worker to whom the agreement applies shall not have the right, as between himself an an employer to whom the agreement applies, to refuse to he a member of the trade union with which the agreement was made unless he agrees to pay appropriate contributions to the trade union in lieu of membership of it.
(2) In accordance with the preceding subsection, it shall not be an unfair industrial practice for an employer to whom an agency shop agreement applies, or for a person acting on behalf of such an employer,—

(a) to dismiss, penalise or otherwise discriminate against any such worker on the grounds that he is not a member of the trade union with which the agreement was made and has not agreed, or has refused or tailed, to pay appropriate contributions to it, or

(b) to refuse to engage a worker who, if engaged by the employer, would be a worker to Whom the agreement applies, on the grounds that he is not a member of that trade union and has refused to become a member of it and has also refused to pay appropriate contributions to it.

(3) In the application of the preceding subsection; to an agency shop agreement made with two or more trade unions, references in those subsections to the trade union with which the agreement was made shall be construed as references to one of those trade unions.
(4) In relation to a person who, in accordance with section 8 or section 9 of this Act, is permitted on grounds of conscience to pay contributions to a charity instead of contributions to a trade union, subsections (1) to (3) of this section shall have effect as if any reference to appropriate contributions to a trade union were a reference to equivalent contributions to that charity.
(5) In this Act references to an employer to whom an agency shop agreement applies shall be construed as follows, that is to say—

(a) in the case of such an agreement made by one or more employers, or made by an employers' association and expressed to be made on behalf of one or more employers specified in the agreement, any such reference shall be construed as a reference to that employer or any of those employers, as the case may be;

(b) in the case of such an agreement made by an employers' association otherwise than as mentioned in the preceding paragraph, any such reference shall be construed as a reference to any employer who is for the time being a member of that employers' association, whether he was a member of it on the date on which the agreement was made or not."

The noble Lord said: I do not think I need delay the Committee very long on this new clause, or give a lengthy explanation of its purposes, because I have already explained what it does. Subsections (1) and (2) reproduce subsection (3) of Clause 5, with minor amendments; subsection (3) is new, and covers cases where there is more than one trade union in agency shop agreements; subsection (4) reproduces subsection (4) of Clause 5 in virtually identical terms, and subsection (5) is intended to allow for the possibility that one or more employers or an employers' association may be parties to an

455
agency shop agreement. The point is that the Amendments will permit an employers' association to make an agency shop agreement on behalf of its members, in the same way as an employers' association may enter into an approved closed shop agreement under the provisions of Part V of Schedule 1.
Clause 5 is reconstructed into two new clauses, with the addition of the new provisions. Clause 10 of the Bill allows one or more employers to be joint parties to an agency shop agreement, but the clause would not enable an employers' association itself to be a party to such an agreement and thereby bind all its members, present and future. The Amendment to Clause 10 and the provisions of subsection (5) of the new clause will enable agency shop agreements to be made between employers' associations and trade unions. This is important, because it will allow certain closed shop agreements at present in existence to be readily replaced by agency shop agreements. In some industries there are closed shop agreements which have been negotiated and entered into by the appropriate employers' association. The Amendment will avoid having to negotiate separate agreements, particularly where new members join an association which has a longstanding agreement.
Perhaps I should draw your Lordships' attention to the fact that these Amendments would not permit a trade union to apply for an agency shop agreement with an employers' association under the provisions of Clause 10(2) if the employers' association was unwilling to enter voluntarily into the agreement. Those provisions are restricted to unilateral application against the employer. Clearly an employers' association can and should act only with the consent of its members. If those members do not wish to enter into a voluntary agency shop agreement—that is, they do not want their association to act on their behalf in the matter—then the union should apply for the agency shop against the employers and not against their association. These new provisions are introduced in the Amendment to Clause 10 and to subsection (5) of the new clause. They are similar to the provisions relating to approved closed shop agreements which are contained in Schedule 1, paragraph 25.
456
Employers' associations will be able to enter into voluntary agency shop agreements in the same way as they will be able to enter into and apply for approval of closed shop agreements. The other Amendments, as I have said, are mainly drafting, and I hope the House will agree to this new clause. I beg to move.
BARONESS WHITE BARONESS WHITE moved, as an Amendment to the Amendment, No. 53D:
Line 5 of subsection (1), leave out from ("unless") to end of the subsection and insert ("the agency shop agreement permits him so to refuse").
The noble Baroness said: We shall, I assume, have some further opportunity for more general discussion on this proposed new clause. My Amendment is put down simply to indicate the feelings of those of us on this side of the House and our dislike of the proposals in the new clause in so far as they affect the agency shop agreement. We had some discussion in the late evening and early hours of our last Committee proceedings as to the status of persons who do not wish to join trade unions, and we made it perfectly clear on that occasion, as we shall do later on the Bill, that we have sympathy with the very small number of persons who have genuine conscientious grounds for not wishing to join a trade union. But, frankly, we have no sympathy for those who are simply anti-union.
What we are suggesting in this Amendment is that it should be open to workers and employers, where they so wish—because this is referring to an agreement between the two sides—to say that, apart from the conscience clause, which, as I say, we would go along with, to put into their agreement that workers shall not have the right to opt out. I do not expect for a moment that the Government will accept this suggestion but it is only right that we should take the opportunity of making it plain that where there is an agreement between both sides, we prefer the closed shop to the agency shop, which after all is the kernel of this new clause, and the purpose of this Amendment is to indicate that. I beg to move.
LORD BERNSTEIN: I know that my noble friend Lady White does not expect the Government to accept this Amendment but perhaps the noble Lord will let the Committee know why.
LORD DRUMALBYN: I do not know whether the noble Lord was present when my noble friend gave a clear exposition of the purposes of the agency shop agreement. Perhaps I should say that the noble Baroness is quite right in saying that we are unlikely to accept this Amendment, because it would have the effect of destroying the compromise which the agency shop agreement should represent. We think it is right that the worker in an agency shop should have the right not to join the union and instead pay a contribution to the union. My noble friend clearly explained the reasons for this and I do not think your Lordships would wish me to go over the arguments again. The plan fact is that, having passed Clause 5, the provisions of which give the right to an employee not to belong, it seems to me to be wrong that we should then provide that the union and the employer should be able together to take away that right. Therefore I hope that your Lordships will reject this Amendment.
LORD POPPLEWELL: Will the noble Lord forgive my ignorance in connection with this matter? If a person refuses to join a union, according to this clause he will have to make a contribution to the union in lieu of membership. What does that contribution entitle him to?
LORD DRUMALBYN: He is either a member or not a member; therefore under the Bill he will be entitled to nothing at all. But of course he is entitled to the right not to be compelled to join, and he will be protected in the exercise of that right.
LORD POPPLEWELL: This is rather a phoney position, to say the least. There is going to be the power to compel a man to make a contribution to an organisation that he does not believe in. Obviously the reason is that he can keep in employment. I should have thought that the Amendment moved by my noble friend was the common-sense thing to do. If we have to deal with this agency shop business, which frankly I do not like, surely it is common sense to allow both sides to write into the agreement the basis which both sides would like to see working in their industry. Surely we should accept the words my noble friend wishes to insert in order to be able to write this into an agreement at the time when the agency shop agreement is
458
being negotiated. That would be much better than being dictatorial and saying, "Look here, Tom Jones, you are going to work at Vickers and though you do not believe in unions, you are going to pay something to the union funds. But you will have no benefit."
LORD DRUMALBYN: If I may say so, the noble Lord is going back on the arguments he previously used. Obviously a worker will have the benefit of the negotiations that the union conducts on behalf of the union and that is the justification for retaining the words which are in the clause at the present time:
…be agrees to pay appropriate contributions to the trade union in lieu of membership of it."
LORD POPPLEWELL: The noble Lord has just indicated the muddled thinking involved here, because when I first asked a question, he told me that such a man got nothing; now we are getting a new type of definition. I can appreciate the point the noble Lord is making, but I thought he would have stated it correctly at the start.
LORD DRUMALBYN: The noble Lord asked me what rights such a member has. In fact, he will enjoy the benefits but not the rights, except in so far as they are negotiated by the unions.
LORD POPPLEWELL: Surely it is not a question of rights or benefits. If a man can get the benefit of the negotiations of the union surely in that case he gets the rights with them? Surely this is splitting hairs. I think the noble Lord ought to accept this common-sense Amendment. If both sides have to negotiate in agency shop agreement, they should be allowed the utmost latitude in negotiation.
3.28 p.m.
LORD SHINWELL: I cannot understand why noble Lords opposite, in view of their sentiments about trade unionism and the right or absence of right to join a union and their sentiments on the matter of compulsion, should refuse to accept this Amendment. What does the clause which the noble Lords wish to retain in the Bill mean? There is to be an agency shop agreement; that is the first condition. If that agency shop agreement provides for the man contracting out of being a member of the appropriate union,

459
he is to be called upon, according to the provision, to pay an appropriate contribution to the trade union.
I speak as an old trade unionist, not as a modern one. I would say that I do not want his money. I cannot imagine a self-respecting trade union, after having gone to all the trouble of promoting an agency shop agreement, wanting money from him. If there had been a provision that he should make a contribution to a charity—and a trade union is not a charitable organisation—one might have understood it; but even then, I do not think that that is a satisfactory solution to the problem.
The proposition made by my noble friend Lady White is a logical one. What does it mean? The noble Lord opposite said to my noble friend Lord Popplewell that he was going back on some arguments he had hitherto used. I have not used any arguments on this matter, so I come fresh to the subject. Perhaps that is a a good thing, because this matter is so intricate. I listened the day before yesterday to the legal wrangle, which occupied many hours of your Lordships' time, and in which the noble and learned Lord the Lord Chancellor played a very prominent part, as one would expect. I remind myself of something he said, not in my hearing but I happened to read the OFFICIAL REPORT that on legal matters it was his expertise. What impresses me as being rather singular is that if someone is an expert on a subject he ought, with the necessary logic, to clarify the situation in a few simple words, instead of which he became completely confused and he baffled me. That may be my misfortune; nevertheless one is in the hands of these legal luminaries. Surely this is a sensible proposition.
I appeal to noble Lords opposite: what is it they want? They want a man to have the opportunity of joining a trade union. They have said that all along and we accept it. It is quite an appropriate sentiment, in the existing circumstances, in order to promote reasonable industrial relations. However, at the same time they do not want a man to be forced to join a trade union. That is their sentiment and I am able to understand it. Therefore there is a provision to have an agency shop agreement. I am unable to
460
understand why the word "agency" should intrude into this matter. But I am able to understand an arrangement—call it what you like, "agency" or anything else—whereby the employers and trade unions come to some compromise or agreement which provides that the man within the ambit of the shop agreement should have the right to refuse to join a union. One can understand it; that is an agreement. Then he is asked to pay an appropriate contribution—conscience money.
If I may say so in the presence of the right reverend Prelates who know more about this subject than I do, I am able to understand conscience in a theological context or in a moral context, but why one has a conscience in the matter of whether one should join a trade union I do not know. I am bound to say that it seems to me to be more a political question than a matter of conscience. We ought not to beat about the bush in these matters. I appeal to noble Lords opposite: what would they prefer—an agency shop agreement? That is the beginning, and within the provisions embodied in the agency shop agreement a man has the right to refuse to join a union. That satisfies noble Lords opposite, and apparently we seem to be satisfied with that provision. But then the man who refuses to join has to pay an appropriate contribution. Who engendered this strange, fantastic and grotesque idea, that it is not necessary for a man to join the trade union but he must pay it a contribution?
I wonder whether the Registrar-General of the Friendly Societies, when he has to deal with the accounting of trade unions—and there is provision for that in the Industrial Relations Bill—will see amongst these items that a number of workers or persons have made a contribution amounting to so much. It could be ten shillings, it could amount to £10 in total. He may ask where this money comes from. It has just occurred to me to ask whether a trade union could use this money for political purposes. That is an idea. When any money comes in on the side from those who do not wish to join the trade union, probably because they are actuated by political bias, the trade union may decide to use it for political purposes. That is a remarkable paradox. This really will not do, and the noble Lord ought to look at the matter again. I cannot see why he does

461
not accept this Amendment. There is nothing objectionable in accepting it. In the circumstances, it is not only appropriate, but it is logical in its common sense.
LORD LEATHERLAND: I am not a lover of the agency shop conception and I am a very simple and naÏve person. However, if we are to have the agency shop I should like to know what it means and what are its implications. Let us imagine that there is a factory employing 1,000 people, 900 of whom are good, loyal trade unionists, paying their contributions week by week. If there is a successful wage demand they will receive the reward of their loyalty to the trade union in the form of increased wages. Let us assume that there are 50 others who come in the intermediate class, who do not wish to join the union, who have been put off, perhaps by Conservative organisations, from taking that step, but who are willing to contribute to the funds of the union in the way that my noble friend, Lord Shinwell, has described. If there is a strike which leads to an increase in wages, will they receive the increased wages?
The remaining 50 of those people will belong to the third, the conscientious, class. They will not wish to have anything to do with the union at all; they will not even give it this conscience money. What will happen about the increased wages in so far as they are concerned? I have deliberately kept the three points of the question very simple. The point I have tried to make is that there will be three classes of people in the factory and I should like to know what will be the benefits which each of those classes will enjoy if there has been, first, an application for a wage increase which has been negotiated, and secondly, a strike which has led to a wage increase?
LORD DRUMALBYN: The noble Lord, Lord Shinwell, described the Amendment as a logical Amendment. Logic flows from certain premises. The premises from which the provision in this clause flows are two: the first is the principle in Clause 5(1)(b), the right to refuse to be a member of any particular trade union or other organisation of workers, or to be a member of no trade union or other organisation. The second thing it flows from is the feeling that
462
has been so often expressed from the Benches opposite, that there should not be a free rider ". It is for that reason, and to meet what we regard as quite a legitimate point of view, that on the one hand a person is given the right not to belong to a union and on the other hand he cannot exercise that right as a free rider; he has therefore to pay a contribution. I should have thought that that was something that would commend itself to the noble Lords opposite, and I hope that for those reasons the Committee will accept it.
The noble Lord, Lord Leatherland, asked me what an "agency shop" means. We are going to come to Clause 10 and we shall have a full opportunity of discussing what an agency shop means, but I think I have already described it sufficiently in what I have already said. It say s quite clearly what is meant in Clause 10; that an agency shop agreement is made between one or more employers and one or more trade unions that the terms and conditions of employment of the workers covered shall include a condition that every such worker must be or become a member of that trade union or of one of those trade unions, as the case may be, or agree to pay contributions to that trade union. When something is written into a Statute of this kind, although noble Lords may not like it or accept it, it would surely be wrong and wholly illogical to allow a union and employer to get together and defeat the purposes of the agency shop agreement.
LORD SHINWELL: Would the noble Lord be kind enough to say whether, when these contributions are made by a man who has refused to join within the provisions of the agency shop agreement and he is paying a contribution to the trade union, there is to be any restriction on the use to which that money can be put? May it be used for political purposes in order some day to bring down this Government? Can that be done?
LORD DRUMALBYN: These funds cannot be used for political purposes, and the Bill so provides.
LORD LEATHERLAND: I thank the noble Lord for replying to my point and

463
referring to Clause 10. Clause 10 provides that when the agreement between the workers, their unions and the employers is drawn up, it shall refer to "workers of one or more descriptions specified in the agreement". What, therefore, would be the position if the union, in entering into this agreement with the employers, specified in the agreement that the increased wages to be awarded should apply only to the fully paid-up members of the union?
LORD DRUMALBYN: That would not be "a description of workers" within the meaning of the term.
LORD LEATHERLAND: I do not want to appear discourteous, but I feel that I must press this point, because the clause says that this agreement between the workers, their union and the employers is in respect of "workers of one or more descriptions specified in the agreement". As I said, the agreement might well specify that the wage award granted should apply to the members of the Transport and General Workers' Union, and to nobody else.
LORD DRUMALBYN: The 1913 Act governs this, and it is not repealed in that respect, so far as this Bill is concerned. The political funds have to be separately subscribed. That is the answer to the noble Lord.
LORD PARGITER: I should like to ask the noble Lord about the position in the event of the situation arising to which my noble friends have referred; that is, that there is a strike which is officially recognised, but non-union members are not on strike, and perhaps one or two union members might not go on strike. In accordance with the union's rules, unless they are to be severely altered, the union would have the right to inflict fines on those members who refused to carry out the union's instruction. But what would happen to the non-unionists: would they have to pay a fine as well? This would be the appropriate thing for them to do, because they would then be making the same contribution as the member of the union. The noble Lord is saying that the contribution must be roughly the same as that of the members of the union. This would be a contribution. It seems to me that this would be a most unusual situation, if the union
464
could properly inflict a fine on two or three members of the union who did not strike, yet could not inflict a similar penalty on the contributors to the union who were not members of the union but who equally were not on strike.
LORD DRUMALBYN: Plainly, if a man is not a member, he is not under the jurisdiction of the union, and therefore it would not be possible for the union to inflict a fine on the non-members.
LORD DAVIES OF LEEK: I heard the nine o'clock news and a nice little girl from Bristol University who said: "This is to be nice day. You should be nice to everybody". I am going to be very nice to noble Lords opposite, and if those who who are sleeping can hear the trumpeter calling, I hope for the moment they will attend to the logic of the tiny argument that I am going to deploy. First, the drafting of this Amendment, which has suddenly been plunged on the Committee by the noble Lord on the Front Bench opposite, is such that it should be taken back. It refers to "section 8 and section 9 of this Act". There is no such thing. We have Clause 8 and Clause 9. Is it referring to section 8 and section 9 or to Clause 8 and Clause 9? If your Lordships look at it, it is really referring to Clause 8 and Clause 9.
The other argument we are told by the noble Lord is that all this stems from Clause 5(1). The day before yesterday I had the opportunity of saying that I considered Clause 5 to be one of the most dangerous parts of this Bill. It is one of the most swingeing clauses in the Bill. In that clause are matters which are referred to later in the Bill. I used the phrase the other day that "we are asked to join a South Sea bubble". To-day, we have had an explanation of the Bill from noble Lords on this side. We are asking about agency shops, and we are told that when we get to five clauses later in the Bill we shall have an opportunity of discussing agency shops. But we are asked to-day to pass a clause implying acceptance of agency shops before we reach Clause 10 which asks us to accept agency shops. Is that correct? It is absolutely correct. I do not know what the Law Lords will say about it, but, so far as the English language and understanding of human affairs

465
is concerned, that is correct. Now to look at the noble Lord's Amendment—
LORD DRUMALBYN: Perhaps I may bring the noble Lord back to the Amendment we are discussing. We are not discussing my Amendment, but the Amendment to the Amendment moved by the noble Baroness, Lady White.
LORD DAVIES OF LEEK: Certainly: if the Amendments were coherent and the language of the clause had meaning. This is the bewildering facts about the entire Bill. It is a miasma of foggy verbiage.
THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE): What we are discussing is Lady White's Amendment. That may be a miasma of foggy verbiage, but it is not a miasma of foggy verbiage for which my noble friend is any way responsible. The noble Lord is discussing something which is not before the Committee.
LORD DAVIES OF LEEK: I beg to differ. Logically, I am diametrically opposed to the noble and learned Lord the Lord Chancellor. We are discussing an Amendment to a clause which is before the Committee. My statement was that this clause is a miasma of foggy verbiage, because the phraseology is loose and inaccurate. It refers to "clauses" when it says it is referring to "sections". That is my case.
I now come to the Amendment. In my humble estimation, we are not able intelligently to come to a decision on this clause in this Committee because we have not yet had a full discussion on the implications of an agency shop, the meaning of "unfair practices" in relation to an agency shop, and the fact that there has to be a vote in a trade union to establish an agency shop. Quite frankly, I think it was unfair to put in this Amendment before we have had the opportunity to discuss Clause 10.
BARONESS SUMMERSKILL: I should like to ask the noble Lord, Lord Drumalbyn, one question. What would the penalty be for a non-trade unionist who failed to pay the contribution to the trade union?
BARONESS WHITE: Does the noble Lord refuse to answer? Apparently, he does. I think our brief debate on this Amendment has indicated the difficul-
466
ties which we on this side of the Committee feel about this whole conception. We had a discussion in our last debate about the inadequacy of a money payment as a substitution for membership of a union. I appreciate fully the noble Lord's argument about this and about avoiding free riders; but I am sure that he will appreciate how distasteful we find this whole conception: that someone should be paying money towards an organisation in which he does not believe, which he does not like, and to which he does not wish to belong. It is a distasteful and rather humiliating situation for both sides, it seems to me. Although I am not sure to which part of the Bill the noble Lord was referring when he said that the political expenditure would not be permitted out of these contributions—it would be helpful if the noble and learned Lord the Lord Chancellor could contain himself for a moment.
THE LORD CHANCELLOR: The noble Baroness was asking a question, and I was trying to tell my noble friend the answer. Since the noble Baroness has got me to my feet, the answer is that she will see it printed in Clause 7(3). It is, as your Lordships know, the proposal, which has not yet been reached, that that should be moved out of the Bill at this stage and moved back into the Bill at a later stage. It is conveniently printed there for the noble Baroness to see.
BARONESS WHITE: I was asking, just to make sure, about where the Government proposed to bring this in. I am obliged to the noble and learned Lord for his explanation. I was not for one moment so sanguine as my noble friend Lord Shinwell in thinking that this money might be used for political purposes. Nevertheless, I have a shrewd suspicion that many unions will wish to put any such contributions not into their general funds, but into some special fund: and it may well be that they would like to use them for educational purposes, so that those who at present are so misguided as not to wish to join a trade union but take all the benefits of trade union action may be more enlightened in the future. I do not think at this stage of the Bill that we shall have any other opportunity of expressing our view on the agency shops. We do not wish to take the time of the House to divide

467
on this Amendment, but I do not feel disposed simply to withdraw it. It represents a feeling which we on this side of the House have very strongly and of which your Lordships have now had some indication.
3.50 p.m.
LORD DIAMOND: May I ask the noble and learned Lord if he would be even more helpful than he has so far been with regard to Clause 7(3). The noble and learned Lord has quite obviously referred us to the right subsection, and he will recognise that what is troubling my noble friends is not the quantum of the payment but the appropriation by the union of the amount received to certain purposes. On a preliminary reading of the subsection to which the noble and learned Lord has been good enough to refer us, it seems to me that this merely determines the maximum amount which may be paid to the union. I know that this is a very complicated branch of the law, about apropriating a sum received from another party to one purpose or another, and I am not attempting to say what it might or might not mean. I am asking the noble and learned Lord whether he would be good enough to look at this again and tell us whether he is quite satisfied that the putting of an upper limit on the amount which a non-union member pays to a union automatically determines the way in which that union can use that money.
THE LORD CHANCELLOR: I will he helpful at the right moment, but I should be wholly out of order if I pursued that matter now. We are discussing now the Amendment moved by the noble Baroness, Lady White, which would enable an agreement, despite the other provisions of the clause we are discussing, to have a pre-entry closed shop. I do not want to lead the Committee astray in pursuing an argument which can be properly pursued at the appropriate moment.
LORD SHINWELL: A pertinent question was posed by my noble friend Lady Summerskill. She asked what happens if a man refuses to join a trade union within the ambit of the agreement and refuses to pay the contribution. Reference was made to Clause 7. I mention it
468
merely because it was referred to, I think, by the noble and learned Lord, the Lord Chancellor. There is no provision there other than bringing a man before a tribunal. We might reach the paradoxical situation in which a man who refuses to be a member of a union and refuses to pay his contribution is brought either before a tribunal or the Industrial Court and penalised. Would the noble and learned Lord answer the question posed by my noble friend as to what happens if a man refuses to pay?
LORD DRUMALBYN: I did not reply at that moment to the noble Baroness, Lady Summerskill because we shall get on to this subject on the very next Amendment, and I hope that she will have before her the new clause. I did not want to be in any way discourteous but I was anxious to get on. I am not sure if I am right about this. If the noble Lords will look at page 143, Schedule 4, they will see in paragraph 20:
"The rules must make provision as to the purposes for which, and the manner in which, any property or funds of the organisation are authorised to be applied or invested."
On Question, Whether the Amendment shall be agreed to?
LORD DIAMOND: May I ask for guidance on a point of order as to what happens, whether there is a rule about the vote following the voice? The noble Lord, Lord Drumalbyn, seemed by his voice to be quite content about this Amendment, yet I gather he is not proposing to pursue it. I do not know whether that is open to him.
LORD DRUMALBYN: I believe it is even possible to change one's vote if one has gone through the wrong Lobby.
LORD SHACKLETON: The noble Lord is not able to change his voice, and this is what he has done. Perhaps he would have a lesson, and his noble and learned friend the Lord Chancellor, from his Whips.
THE CHAIRMAN OF COMMITTEES: Perhaps it would be for the convenience of the Committee if I put the Question again. The Question is, That this Amendment be agreed to.
LORD SHACKLETON: So far as I know, no Tellers have been appointed.
THE LORD CHANCELLOR: I understand no Tellers have been appointed on one side; we had two Tellers, the other side did not.
BARONESS WHITE: We were endeavouring to save your Lordships' time. I am afraid that when the Motion was put to the Committee the vehemence of the "Not-Contents" from the Government Front Bench caused some voices to be raised in other parts of the House when the Question was put. This has led to the present situation in which we have wasted a great deal of time.
THE CHAIRMAN OF COMMITTEES: The Clerk has confirmed that Tellers have not been appointed on one side. There cannot therefore be a Division. Amendment No. 53D is not agreed to, and the Not-Contents have it.
Amendment to Amendment negatived.
LORD SHACKLETON: I wonder whether I should rise and ask whether the Committee should now adjourn while the procedures that we follow may be considered. We have been doing our best to co-operate with the Government on this matter.
THE LORD PRIVY SEAL (EARL ELLICOE): I do not consider that the Government have in any way not complied with the procedures, and I do not think it would be in the interests of anyone to adjourn. More seriously, I do not believe the Committee would wish to adjourn. I think we can pass on to the next Amendment quite easily.
BARONESS WHITE BARONESS WHITE moved Amendment No. 53E:
Line 4 of subsection (2)(a), after first ("or") insert ("having so agreed").
The noble Baroness said: It may be for the convenience of your Lordships if we took Amendments 53E and 53F together. These Amendments are to clarify the drafting on this very important clause. We must bear in mind throughout our proceedings that this is a Bill which will affect millions of workers in this country. One of their general objections to this Bill is that it is extremely difficult to envisage the ordinary person on the shop floor, the shop steward, following the intricacies of this legislation. It is essential that
470
we should, on every possible occasion, make it as plain as possible.
Our reason for putting down these two Amendments is to make it quite plain that the person we are referring to as someone who has refused, or failed, is someone who is in default, having agreed in the first place to contribute. It is for the employers in such circumstances, if someone has agreed to pay the appropriate contribution, and then has subsequently refused, omitted or failed to pay, to dismiss, penalise or otherwise discriminate against any such worker. That is referring to somebody already in his employ. In subsection (2)(b) the employer may refuse to engage a worker, and in this case if someone, having agreed to pay, has failed to pay his appropriate contribution, or has refused to do so, this can only in the circumstances, refer to some previous employment.
It may well be that an employer may be contemplating engaging someone, but the unions may have a record of this person and say, "He is now applying for a job with Brown; we know when he was employed by Smith and Co. he said he did not want to join the union, he undertook to make certain payments, but our records indicate that he was a defaulter. Therefore on our information, which we can present to you, we object to your engaging such a person because he will not, on past experience, keep his undertakings." It is for those quite straightforward reasons that we feel it would improve the drafting of this part of this clause if these two Amendments were made.
LORD DRUMALBYN: The purpose of the clause, as it stands, is to deal with the actual application subsection (2)(b):
"to refuse to engaged a worker who, if engaged by the employer, would be a worker to whom the agreement applies, on the grounds that he is not a member of that trade union and has refused to become a member of it and has also refused to pay appropriate contributions to it",
The word "failed" will not be appropriate because a person could not have failed to pay a contribution in the circumstances here envisaged until the person had been engaged. The noble Baroness has raised an interesting point in her first Amendment. We shall wish to look at that again. The noble Baroness will also have

471
seen the following Amendment, and perhaps we will have a little more elucidation when we consider that. If she will be good enough to withdraw this Amendment we will gladly look at it again to see whether it is absolutely necessary in the light of discussion on the next Amendment.
BARONESS WHITE: I am willing to do that insofar as the first Amendment is concerned. The second Amendment, subsection (2)(b), is something I should like to take up because I think we should provide for circumstances which I thought I had clearly described. Although it is perfectly true that, at the point of the engagement, the man could not have failed to pay in that particular job, it may well be—and I repeat this—that the union could have a record of this person in other employment. This is a fair point, and something which could lead to a great deal of irritation and controversy at the place of work if the union said, "We have told you, we can prove that this chap has a record of default, and that therefore he is not likely to be within the terms of the agency shop agreement as made between us". We ought to provide for that situation, where a union can come in perfectly good faith, and with well authenticated information, and say to the employer, "This chap is not a person that you can trust to keep his engagement."
LORD DRUMALBYN: I understand the noble Baroness' point, but it surely cannot be said to follow that because a person have refused to pay before he will necessarily refuse to pay again. This really comes back to the question of the noble Baroness Lady Summerskill. The whole purpose of the provisions here is to remove the protection against dismissal of a worker who refuses or fails to pay. Therefore, this is the point here. We did not, and we do not, intend that it should be possible to refuse to engage a worker because on some previous occasion, and possibly with some different union, he had failed to pay his dues.
BARONESS WHITE: I have tried to help the noble Lord. I can only say that I am quite sure that a situation of this kind is going to lead to trouble in the future. The trouble will be on your own heads. In view of what the noble Lord has said about the subsequent Amendment
472
which I think the noble Lord, Lord Gray, wishes to move, I beg leave to withdraw my Amendment.
Amendment to Amendment, by leave, withdrawn.
4.11 p.m.
LORD GRAY LORD GRAY moved as an Amendment to Amendment No. 53:
Line 4 of subsection 2(b), leave out ("has refused") and insert ("refuses").
The noble Lord said: I beg to move Amendment No. 53A and I hope that it will be for the convenience of the Committee if in doing so I speak also to No. 53B. We have already heard something of these Amendments. The two Amendments together seek to change from past to present the tense in the fourth and fifth lines of subsection (2)(b) of the new clause. I am inviting noble Lords to look at a relatively narrow point but one which I believe is important in itself because it touches the intention of a paragraph which in effect spells out an exception to what might otherwise be an unfair industrial practice.
Subsection (2)(b) of the new clause, as I think my noble friend Lord Drumalbyn has already pointed out, allows that it shall not be an unfair industrial practice if where an agency shop agreement is in force an employer refuses employment to an individual on the grounds that he is not a member of the relevant trade union—and here I quote:
"and has refused to become a member of it and has also refused to pay appropriate contributions to it."
I believe these words as they stand are capable of retrospective interpretation. I do not think that is, or should be, the intention of the provision; but rather, as I think my noble friend has already said, they should apply only to what occurs and transpires during negotiations for a particular job. I hope noble Lords will agree that, if we substitute for the words "has refused" the word "refuses", and in place of the words "has also refused" put the words "also refuses", we shall have clarified the intention and secured it. I hope noble Lords will agree that this will improve the new clause as it stands, and the Government may perhaps he able to accept my Amendment. I beg to move the first Amendment standing in my name.
LORD DRUMALBYN: I am bound to say to the noble Lord that he has here found something and has put down an Amendment that makes our intention clearer than apparently it was to noble Lords opposite. I am sorry that the noble Baroness should have taken a different meaning from the words, but so far as the Government are concerned they are grateful to the noble Lord for having pointed out this difficulty and I should be glad if your Lordships would accept this Amendment.
I should perhaps point out that there will be several consequential Amendments necessary if the noble Lord's Amendments are accepted. The same applies, for example, in subsection (2)(a), with the words:
"or refuses or fails, to pay appropriate contributions to it".
But I do not think even the noble Baroness would have any objection to that one. There may be other places also where we should have to make Amendments; for example, in Clause 16(5)(a). But we shall look to see whether any further Amendments are needed in order to preserve consistency through the Bill.
LORD GRAY: I thank the noble Lord for what he has said and for his acceptance of my Amendment. In regard to subsection (2)(a), however, I do not think the point arises, since dismissal would follow as a consequence of refusal in that particular employment. But I am very happy with what the noble Lord has said.
LORD DRUMALBYN: The noble Lord may well be right. We shall have to look at this. I was merely warning the Committee that there might be some further Amendments.
On Question, Amendment to Amendment agreed to.
LORD GRAY: I formally beg to move Amendment No. 53B.
Amendment to Amendment moved—
Line 5 of subsection (2)(b), leave out ("has also refused") and insert ("also refuses").(Lord Gray.)
On Question, Amendment to Amendment agreed to.
BARONESS WHITE BARONESS WHITE had given Notice of her intention to move Amendment No.
474
53F, as an Amendment to Amendment No. 53:
Line 5 of subsection (2)(b), after ("refused") insert ("or having so agreed has failed").
The noble Baroness said: I have explained our view on this matter, which is diametrically opposite to what has just been agreed to by the Committee. In the cirumstances, I do not move Amendment No. 53F.
4.16 p.m.
BATONESS WHITE BATONESS WHITE moved, as an Amendment to Amendment No. 53:
Line 4 of subsection (3), leave out ("one of those trade unions") and insert ("the trade union in respect of workers of the description of the worker concerned").
The noble Baroness said: I apologise for what I must admit is the rather inelegant language of this Amendment (No. 53G on the List), but we are somewhat concerned about what we feel may be a loophole in subsection (3) of his new clause. If one looks at Clause 10, to which the words in our Amendment relate, one will see that care is there taken to describe the type of worker who will be covered in these agreements. We are somewhat concerned that in the clause as it row stands it would be open to an employer, possibly, to manœuvre (to put not too fine a point upon it) between (shall we say?) a trade union and an organisation which we know in history is a company union, and so on, and that this could leave a certain loophole; and it would thus be possible for a worker to join an organisation which did not in fact fit his description of work as provided for in Clause 10.
I repeat, if a more elegant form of words can be found to meet the same object, we should have no hesitation in withdrawing this Amendment; but we should like to know that the Government are aware that we have this apprehension. We do not suppose that it will be a frequent occurrence, but it is possible; and we think therefore that the provision should be rather more tightly drawn so that it is in consonance with the kind of provisions made in Clause 10, the main agency shop clause. I beg to move.
LORD DRUMALBYN: With respect, I do not think this Amendment is desirable. Perhaps the noble Baroness has,

475
for one thing, overlooked once again the words
"as between himself and an employer"
in line 3 of the new clause.
BARONESS WHITE: I beg the noble Lord's pardon, but that is precisely what we have not overlooked; that is what we are afraid of, as between the worker and his employer.
LORD DRUMALBYN: The situation envisaged is that there may be several trade unions in the agency shop agreement. But what the noble Baroness's Amendment fails to recognise is that there are circumstances in which two unions may represent the same descriptions of workers—not the same workers, but the same description of workers—so that there may be a real choice there.
There may, for example, be workers of the same description represented by different unions because they happen to be employed in different parts of the plant. In such cases the agency shop agreement can specify which union is to receive the contributions. The Bill does not lay down any rule as to which agency union, when there is more than one, shall receive the contributions. The Government feel that it is better for the parties to the agency shop agreement to decide that. The Amendment to the Amendment, however, could produce an unworkable requirement and could cause difficulties where none at present exist. It goes without saying that in general the agency agreement will provide that certain descriptions of workers shall join a certain union which caters for such workers. It is unnecessary to add to this and to take away the flexibility which the present wording provides.
LORD POPPLEWELL: I hope that the noble Lord, Lord Drumalbyn, will not dismiss this proposal out of hand but will have another look at it. I confess that the wording of this Amendment is not attractive, but there is something behind it. One can visualise a set of circumstances developing in an industry where a new union is attempting to break through and increasing the difficulties which often arise in consequence. The employer and employee could agree which union an individual should join. There may be a disturbing influence in that
476
shop. The object is to see that the man joins the union to which his particular skill and craft applies.
I agree that the wording is somewhat clumsy but I hope that the noble Lord will agree that there is something in the fear we express and that, without committing himself unduly, he will not turn down the proposal out of hand but will have another look at it to see if he can find something more fitting with which to meet the fears we have over a possible development.
LORD DRUMALBYN: I shall certainly respond to that suggestion. After all, this Amendment to the Amendment appeared on the marshalled list only to-day. I do not in the least blame the noble Baroness, Lady White, for that, but obviously we have had to look at it in a certain amount of haste. I have given our immediate reaction. I admit that her Amendment would ensure that the worker joined the appropriate union, where there is more than one union. I have pointed out that there may be more than one union that he might join, but in such a case certainly it would be possible for the agency shop agreement to provide which union he should join in the particular circumstances of the part of the plant to which he goes. I do not anticipate any difficulty here, but I will very willingly look at the matter again.
BARONESS WHITE: I appreciate that my Amendment appeared late on the marshalled list and that the noble Lord did not have much time for consideration. In view of the assurance he has given, I beg to ask leave to withdraw my Amendment to the Amendment, and I ask him to look at it again, because we have a genuine apprehension on this matter.
Amendment to Amendment, by leave, withdrawn.
4.22 p.m.
LORD DELACOURT-SMITH LORD DELACOURT-SMITH Moved as an Amendment to the Amendment:
Leave out subsection (4)
The noble Lord said: The new clause we are discussing is notable, among other things, for two features. It represents, as some of my noble friends have already underlined, the first appearance in the Bill of the concept of the agency shop, which is a very new, controversial and,

477
some of us on this side of the House think, a very undesirable introduction into our industrial relations law. It also marks the first appearance in the Bill of the provision for giving a measure of statutory protection to conscientious objection as a ground for refusing to join a trade union. The right not to join has already been asserted in an earlier clause, but now we have a provision where even that right not to join is in various ways qualified and that there shall be a right on grounds of conscience to a statutory entitlement to remain outside a trade union.
I put this Amendment to your Lordships, not for the purpose of reaching a conclusion on this important and somewhat complex development, but to give noble Lords and the Committee an opportunity of giving preliminary consideration to it so that perhaps at a later stage we may reach a more definitive conclusion. Therefore, if it is not possible for the noble Lord, Lord Drumalbyn, to reply in full detail on every point I raise, perhaps he will consider those points and reply to them later.
I want nothing I say in discussing this point to be regarded as in any way suggesting that my noble friends or I do not attach great importance to providing in our legal arrangements, in appropriate cases, protection for the individual conscience. Where there is no adequate protection in appropriate cases for the individual conscience one lives under a monstrous tyranny. I am very conscious that even when this country was fighting for its life the rights of conscience in respect of military service were respected, and respected not only by the law but by public opinion. This was one of the many features which distinguished this country from the monstrous tyranny we were then fighting. But, my Lords, it is appropriate, I think, to ask whether we are right to enshrine this particular statutory form. There are not, I think, in our legal code very many safeguards for the individual conscience. The right on conscientious grounds to make an affirmation rather than to take an oath comes to mind. The right on conscientious grounds to refuse military service is perhaps the most significant right of all in this regard. This was the right which was established by men of great courage, including my noble friend Lord Brockway, who played such a great part in establishing that right in
478
the First World War. There are rights for the protection of conscience by medical men in connection with the performance of abortions.
These clearly are all cases where an individual is being called upon to make a most serious personal decision which touches the very foundations of his ethical beliefs. He is being asked, in respect of the oath, to make the most solemn declaration which his conscience permits and it is very much in the interests of society that a man should feel himself bound by such a declaration. In the other cases he makes a declaration that he cannot face the responsibility for destroying the life of another human being.
These are great ethical questions in which our law, in my view rightly, gives protection to the conscience of the individual I am a member of a Party in which conscience has always played an important part. Indeed, a former Member of this House, a former Leader of the Party, Lord Attlee, once had occasion to remind the House that conscience was a still, small voice. One is allowed, and has traditionally been allowed, in the Labour Party to have conscientious scruples on matters affecting teetotalism. Perhaps the views on this matter are not quite so strong as they were in the past, but one can well understand individuals who in their personal experience have seen homes and families wrecked by intemperance and who take the strongest and deepest views on that subject.
But when I turn from considerations like that to the question of whether the law should provide a statutory protection for the conscience in respect of becoming a trade unionist, I am bound to say that I experience a sense of a change of scale. The Royal Commission on the Trade Unions remind us—and indeed the noble and learned Lord referred to this point the other night—that there are people who take the view (and they do so on the basis of the Second Epistle to the Corinthians, that believes are enjoined—and I quote:
"That they be not unequally yoked with unbelievers."
If I may say so, that is a slightly pejorative account of joining a trade union, especially when one remembers—and I

479
think this is a fact within the knowledge of the Committee—the great and profoundly religious men who have played a part in the creation of the trade union movement, and the many churchmen and men of religious beliefs who have extended their sympathy to it.
THE LORD CHANCELLOR: If I may interrupt the noble Lord, I absolutely agree with what he is saying, but he will remember that these particular people—two groups of whom were mentioned by the right reverend Prelate the other day—count as unbelievers almost everybody. Even if one took it in the strictest sense, it would be difficult to say that there were not some unbelievers, either in the trade unions or the Conservative Party, and the fact is that these particular people think it is wrong to join any association whatever which has in it a person whom they regard as an unbeliever. That makes it very hard for them, poor dears!
LORD DELACOURT-SMITH: I appreciate that and I was indeed going on to say that people who take that view are entitled to take it, of course, but they are very few in number. I am involved in a middling-size trade union and I have myself encountered literally only a handful of them over a good many years. It has been my experience that the genuine conscientious objector who shows, not only by his relationship with his fellows at work but in all the relationships in life, that he holds a particular coherent set of opinions and follows a particular and rigid set of moral standards has, invariably, the understanding, sympathy and respect of those with whom he works. It seems to me to be strange that we feel it necessary to make statutory provision. After all, it is not as though trade unions were responsible for deaths. I do not know that the trade union movement has ever been charged, even by its severest critics, with ruining as many homes as I think drink can be regarded as having ruined. Yet this particular relationship in the trade union movement is being singled out to be enshrined in this Industrial Relations Bill and a particular protection and provision made for it.
I am bound to say, with the greatest respect for the conscience of individuals,
480
and knowing as I do the problem of a man who follows a particular creed as exclusive as this, that he commands the respect of his fellow-workers and indeed often reciprocates respect for the trade union, though he will not join it. I really think we are to some extent exaggerating the significance of this matter, and I should have thought that this particular situation could be dealt with by some kind of declaration by the trade union movement—some kind of understanding—which I believe would be widely observed. The difficulty really is that once we have enshrined in a Statute a protection for the conscience of the genuine conscientious objector, one never quite knows where one is going to stop or what kind of frictions or difficulties one will get into. I ask myself whether it is the intention of the Government to embody a similar provision protecting people's consciences in other aspects of our industrial legislative arrangements.
Let me take one or two examples. which are not far-fetched. Let us take a man who is employed in an engineering works and who has normally been engaged in quite peaceful, satisfying work. He suddenly finds that his firm has entirely turned over to production for defence purposes. He might find this a great shock to his conscience. Or let us take a man who has perhaps worked hard and become the manager of a supermarket, and suddenly he learns that not only in the supermarket of which he is the manager but in all the others run by his employers, a drinks counter is to be started. He may say, "This is something completely foreign to my conscience. I have spent my life selling provisions and other foodstuffs but I have the greatest objection to being involved in selling drink to anybody". These are not frequent occurrences, but I suspect that they are quite as frequent as the individuals who have this deep conscientious objection to joining their fellows in a trade union. What is the position? Think of the man who says, "Because this firm is making armaments I will no longer work for it", or, "Because this shop is selling drink I will no longer work for it". That man cannot be accommodated by his employers elsewhere. Is he entitled to have this conscientious objection respected when, for example, he goes to claim unemployment insurance money? I am not

481
sure. Perhaps the noble Lord, not necessarily on this occasion but on some other occasion, can tell us.
I would invite the Committee to look at this question. I should not like anything I have said, either on my own behalf or on behalf of my noble friends, to cast doubt either on the genuineness of the tiny number of genuine conscientious objectors, or upon the importance of a complete respect in our Statute Law for conscience, where it is appropriate. But I cannot escape the feeling that to some extent, especially when one sees the complexities into which one is led by this policy, we are perhaps taking a steam-hammer to crack a rather small nut.
I put this Amendment forward, as I have said, neither to ask for a definitive reply from the Government nor to invite the Committee at this stage to come to a definitive conclusion, but because I believe that this is a matter which is of importance—which the Government have made of great importance by giving it its place in the Bill—but which can perhaps lead on to difficulties, because others will claim a right which involves a somewhat elastic definition of conscience. We may run into difficulties as a result of that. I wonder whether there is not some other way. I suggest, and I do so quite on my own responsibility and without any consultation with anybody, getting some general declaration and understanding about the position of the genuine conscientious objector. It is perfectly clear that, rightly or wrongly—and I am not at this stage making a point of this and stating it as a fact in many provisions of this Bill the Government are in fact obliging individuals to become trade union members or to become a rather peculiarly penalised kind of non-member. Perhaps this matter might be looked at by the Committee. I beg to move.
4.40 p.m.
LORD BROCKWAY: May I first express the deepest appreciation of the spirit in which the noble Lord, Lord Delacourt-Smith, has moved this Amendment. I was deeply moved by his reference to myself. But what is much more important is the truth of his statement that this country does now practise, in the case of objection to military service, the most tolerant treatment of conscientious objectors in any part of the world. I recognise that, and it is of some reference to
482
what my noble friend has said that that treatment now extends beyond religious objectors and even beyond absolute pacifists; it now extends to political objectors to a particular war. And this is a quite extraordinary tolerance on the part of the Government. I see that the noble and learned Lord the Lord Chancellor is indicating some doubts about that. May I just say to him that I have represented at tribunals objectors who have been political objectors and who might have been prepared to take up arms in certain circumstances, but because the military service Acts applied to a particular war the ruling of the tribunal was that an objection to that particular war had the authority of the law. I tremendously appreciate the fact that in relation to military service this country has the broadest and most tolerant acceptance of the right of conscientious objection of any country in the world.
My noble friend indicated the very wide area over which recognition of conscientious objection has now been extended. One has it not only for military service; one has it, rightly or wrongly, for vaccination; one has it for the right of affirmation rather than taking an Oath. It has gone very far indeed, and in many of those cases we must find it extraordinarily difficult to understand the basis of that conscientious objection or to recognise that it has validity. But the whole case for recognising conscientious objection is that one should appreciate that an individual can have a moral sense of right or wrong even if one cannot understand it. It may so easily be that deep in his being he may have a sense in that direction and yet, logically and by all grounds of reason, it cannot be accepted. The highest form of a civilised society is to recognise the rights of an individual to disagree even if one does not understand and accept that disagreement.
I apply that to this particular case of membership of trade unions. Why anyone should have a conscientious objection to belonging to a trade union I do not begin to understand. But while I do not begin to understand it, I recognise that there are a small number who have such an objection. My noble friend Lord Shinwell remarked during his speech that he wondered where this fantastic idea had its origin. I am not sure that I can tell him. But I can tell him this: it was held

483
within the Ministry of Labour 31 years ago and it was held by Mr. Ernest Bevin, the trade union leader, who was then the Minister of Labour. I went to him on behalf of conscientious objectors, and he made to me the very proposal which is now in this Bill: the proposal that conscientious objectors should be exempted from military service without penalties if they were prepared to contribute to a charity the difference between a soldier's wage and the salary they were earning. I shall be very interested to know whether that was the beginning of this idea. In fact the Central Board for Conscientious Objectors rejected that concession on the ground that they disliked the idea of purchasing freedom for their conscience. If I may say so, I disagreed with them on that matter.
In relation to this Bill I am confident that the majority of those who would refuse to join a trade union would agree to pay a similar contribution to a charity. The number who would decline to do so would be infinitesimally small. They belong to strange little religious organisations, other wordly, which one can hardly accept in any social arrangement at all, but there they are. And I was interested, in that conversation with Mr. Ernest Bevin, to hear him say, "Yes, in our trade union we have one or two like that. We take no notice of them. We take no action against them. To do so would cause more trouble than to impose a penalty upon them. They are so few". I believe that is broadly still true. But I would just say to the Minister, in response to the appeal which has been made from our Front Bench, that it may be possible, because the number of conscientious objectors would be so small, to find a solution to this problem by the method of declaration, the method of an agreement which is not necessarily statutory. But having said that, though I cannot agree with and cannot understand, objection to membership of a trade union, nevertheless believing that wherever there is legal compulsion which involves individual decision or action there is the right for the expression of a moral sense of right or wrong, and that that right should be accepted by a provision for exemption, I welcoming the fact that there is that provision in this Bill. However, I ask the Minister whether he would consider the proposal that there might be a method
484
of dealing with this problem other than by the actual clause which is now before us.
4.48 p.m.
LORD DRUMALBYN: We have listened to two very thoughtful and serious speeches, and the question has been put; should the law provide statutory protection on grounds of conscience? It has been suggested that this might lead to friction, and it is suggested that it might lead to extension in some way or another, as, for instance, in the examples that the noble Lord, Lord Delacourt-Smith mentioned, of a firm that turns over to manufacturing armaments, a supermarket that starts a drinks counter. I think it is better to look at the positive side of this to start with, and the reasons why this provision is in the Bill. I think one could sum up the reasons quite simply in the two words "fairness" and "uniformity". I have mentioned uniformity, but of course there is a lot of flexibility, in the sense that in the first place the application for exemption, if that is the right word, from trade union membership on grounds of conscience will be a matter for discussion with the trade union itself. If there is no agreement, then the matter goes for decision by a tribunal and that, overall, should ensure a measure of uniformity of application and a general fairness. The noble Lord put forward the suggestion that it might be possible to do this in another way. I will willingly see whether this is possible, but perhaps the noble Lord will not mind my saying that it would have been simpler for us if he, when he put this Amendment forward, had made some suggestion for an alternative solution of this very difficult problem.
The other aspect is the question of fairness. The Bill states quite clearly that a person has a right not to join a trade union. It goes on to indicate the circumstances in which he should join a trade union or, failing that, pay contributions, either to the trade union or, if it is a matter of conscience, to a charity. It is felt that a person who has a conscientious objection to joining a trade union will probably equally have a conscientious objection to paying to union funds. The mere fact that he has a conscientious objection to joining a trade union should not disqualify him, in our view (and I think I could say also in the view of

485
noble Lords opposite) from earning a livelihood in accordance with his skills and abilities.
Therefore, what is the fair thing to do? I do not like the expression "free rider", but it illustrates this concept, that there should be an equality of contribution in this respect, whether or not a man becomes a member of the trade union, in these limited circumstances that the Bill envisages. I should have thought that this was right. I quite agree with the noble Lord who moved this Amendment that, in order to secure fairness in this case, one has to have some fairly elaborate provisions. The noble Lord may say, "Well, considering the small numbers involved, surely this is taking a sledge hammer to crush a nut". But where one is dealing with individual freedom, where one is dealing with conscience, one wants to make quite certain that one achieves the objective that one sets out to achieve. It is difficult to see how that could be done with fairness to the other workers, and in a way that will secure uniformity of treatment, except by the provisions in the Bill. The noble Lord may have some better ideas. I can only say that I am closing no doors; that we shall certainly go on looking at this, and shall be glad to hear of any ideas the noble Lord may have.
In all seriousness, we appreciate the point that the noble Lord has put, but we think this is a matter of great importance to the individuals concerned. The noble Lord, Lord Brockway, used the phrase "purchasing freedom for the conscience". I do not particularly like that expression. The test of conscience here is willingness to pay a contribution to charity. It seems to me that this is reasonable. We will gladly talk to the noble Lord if he wishes us to do so, or examine any suggestions he wishes to put forward. I appreciate the spirit in which he has moved this Amendment, which is in no way contentious, and obviously deeply felt. I am afraid that I cannot—and I do not think he expected us to—accept the Amendment at this stage. I hope the noble Lord will regard that as an adequate answer, at any rate for the time being.
While we are talking about conscience, I regret to say that I misled the Com-
486
mittee on the question asked by the noble Lord, Lord Shinwell. There is nothing in the Bill which limits the purposes to which a union may put contributions made by non-members. The ways in which union funds are spent are, I understand. a matter for union rules, as I referred to in my answer before, and there is a Schedule that deals with union rules. I hope noble Lords will accept my apology.
4.55 p.m.
THE EARL OF MANSFIELD: It is greatly to be hoped that Her Majesty's Government will resist the blandishments of the noble Lord, Lord Delacourt-Smith, even though he has put them forward in his usual very reasonable and persuasive way. Whatever the noble Lord may say, if this provision is not enshrined in law there is not the slightest doubt, to my mind, that a considerable number of trade unions will seek to evade it, and to crush the individual right of a worker to keep out of a trade union. The noble Lord, Lord Delacourt-Smith, mentioned that it seemed to be taking a sledgehammer to crush a nut. The older among your Lordships may remember a ditty of our youth called "It ain't gonna rain no mo'". which contained a number of rather amusing verses. One of them was:
"A peanut sitting on the railroad track,
Its heart was all a flutter.
The train came roaring round the bend—
Toot, Toot!peanut butter!"
I am afraid that the individual worker will find himself "peanut butter" unless there is statutory provision, enshrined in a code of law, for his conscientious objections. It is for this reason that I hope the Government will not weaken.
The mere fact that these conscientious objectors may be a very small number—although I think their number will be considerably more than the noble Lord, Lord Delacourt-Smith, is willing to admit—is surely no reason why those very few should not be given the right of conscientious objection which, as the noble Lord, Lord Brockway has said, was so generously given to conscientious objectors during the two World Wars, even though there is no doubt that some of them were straining their consciences, if they existed, a long way. It is for that reason that I hope the Government will stand firm.
LORD CONESFORD: The noble Lord, Lord Delacourt-Smith, moved his thoughtful Amendment in the admirable way we expect from him, and I agree that it raises a very serious subject. I agree with the Government that provision must be made. Whenever you provide for conscientious objection, you must also provide for some way of determining whether it is genuine, and the Government attempt to do that when we come to Clauses 8 and 9 of the Bill.
The point that I should like to make here is that the conscientious objector may be of the type that has made a strange interpretation of a scriptural text, and thinks he cannot join any sort of organisation. I do not think the conscientious objector need be limited to that. Speaking for myself, I have not the slightest objection to a man joining a trade union, and in many instances I have advised men to do so, but that does not mean that I could not have a conscientious objection to joining a particular trade union. The noble Lord, Lord Brockway, who has so much knowledge of this subject—and though it was news to me, I am not prepared to say he was wrong—said that we recognised conscientious objection to taking part in a particular war. In exactly the same way, we should recognise a conscientious objection to joining a particular union. A man may be so convinced that the work of a particular union, as shown by its conduct over a period, is evil that he would do anything rather than join it. I only want to make it quite clear that, in my view, the right to be a conscientious objector is not necessarily confined to the man whom most of us would consider a "crank". I think that this is already sufficiently provided for by Clause 8, though of course we are not arguing that now. But speaking for myself—and I agree with the noble Lord, Lord Delacourt-Smith, on this—although I do not think the numbers that will, be involved under this clause will be very large, I think they are people for whom we are bound to make provision.
THE LORD BISHOP OF BLACKBURN: I am very grateful for the way in which the noble Lord, Lord Delacourt-Smith, moved this Amendment, and I am very interested in the debate which has taken place. I hope very much that the Government will look at this question on grounds
488
of conscience. I should like to explain that when I moved a previous Amendment, which was defeated, I was not looking at grounds of conscience from this very limited point of view, because there are other possible grounds of conscience. The noble and learned Lord who sits on the Woolsack accused me of being lacking in logic when I suggested that, if the General and Municipal Workers' Union refused to register—I think that that will be a very wrong thing for them to do if this Bill goes through, because it seems to me very important that they should register—on conscientious grounds I should not want any longer to be associated with the union. I agree that this raises all kinds of problems and difficulties to which I do not know the answer. I suggested the other day that it might be possible to look again at this question of grounds of conscience, to see how it can best be interpreted and applied. I think that the reference to the agency shop comes in the right place, but there are other grounds of conscience which have to be looked at and I hope that they will be looked at by the Government.
LORD BEAUMONT OF WHITLEY: I think that the right reverend Prelate has raised a very important point here, and it becomes even more important in the context of the approved closed shop. In that context, the conscience clause is the only way out for someone who seriously objects to something which the union is doing. Something more than is already in Schedule I will have to be provided, when we get to that part of the Bill. So I wonder whether the Government will look at the possibility of widening the conscience clause generally.
LORD DRUMALBYN: The Government have been invited to reconsider this, and of course we shall reconsider it. But, on the one hand, I am scolded rather for the length of the provisions, and, on the other hand, I am invited to extend them. But that is the way of life, I am afraid, and we shall have to look at the whole matter again.
LORD DELACOURT-SMITH: As I said, I did not seek to press this Amendment to a Division, but merely sought to raise this important issue in a preliminary way with a view to asking the House to come to a more definitive view at a

489
later stage. I think that the brief debate which we have had has justified my action, because the speeches have illuminated some of the very real problems that are going to arise under this clause. I emphasised how important it was to ensure that a man did not genuinely have to violate his conscience, and I addressed myself particularly to those who are very widely accepted as genuine conscientious objectors, genuinely entitled to respect, and often showing respect for the trade unions. I have known of men who had a very strong religious objection, and who, because they respected their fellow workers, actually made a voluntary donation to a union. They might in future even be hailed as pioneers because they might be regarded by the Government as forerunners of the agency shop, for being willing to make a contribution equivalent to a union contribution although they did not wish to become members.
The speeches we have heard surely indicate that people will make a wider interpretation, and I am concerned because this could give rise to the whole issue of conscience becoming treated with cynicism, which would be unfortunate. For example, I can imagine individuals who might say that they had a conscientious objection to joining a trade union, because its headquarters were in a foreign country—to wit, England—and because its proceedings were exclusively conducted in a foreign language—to wit, English. Thee might be very strongly held views, but they would not be issues of conscience I can equally understand that an individual may disagree very strongly with what he believes to be the course of action of a particular trade union, of which by definition he is not a member.
The right reverend Prelate has given an example of a man who feels that his union has done something with which he profoundly disagrees. But I am extremely surprised to hear that the right reverend Prelate should think that, when a union has done something with which a member disagrees, it is appropriately dealt with—on conscience grounds, above all—by resignation. Surely, with a democratic organisation—and trade unions are far more democratic than the vast majority of noble Lords on the other side are
490
prepared to give them credit for—one stays in and tests a decision and argues to the contrary. I have seen many cases where what has started as very much a minority opinion in the trade union movement has become the majority opinion. So we are now seeing the very real difficulties to which the word "conscience" can give rise, and how widely the interpretation can go beyond what some of us would regard, and respect, as a genuinely conscientious objection. I cannot understand how one can have a conscientious objection to one trade union, but not to another. That seems like having, in the middle of a war, a conscientious objection to serving in the Brigade of Guards, but not to serving with the Lancashire Fusiliers.
LORD CONESFORD: May I put one point 10 the noble Lord? He mentioned—and it brought out very much what I had in mind—a democratic body. I would say at once to him that my inclination, even in a minority, would certainly be to do as he said and remain in the trade union and seek to make my view prevail. But there is such a thing as a trade union that has fallen under complete Communist domination, and in that case I should have a strong conscientious objection to joining. It would be a conscientious objection from my deepest convictions, and nothing would induce me to join a trade union that was, in my view, carrying out evil intentions under Communist domination.
LORD DELACOURT-SMITH: I am extremely surprised to hear the noble Lord say that and to take that particular example, because as he will know there has been an example in the recent history of this country of a trade union which fell under that kind of domination. It fell under that domination initially in a perfectly democratic way, but the domination was maintained by methods which were shown in the courts to be fraudulent and dishonest. I was most surprised to hear the noble Lord say what he did, and I wonder whether, on reconsideration, he would really sustain that point of view. We surely all know, and the trade union movement recognises, the debt which is owed to the people who did not leave the union but who remained in it and, by a very long,

491
very courageous and determined campaign, secured a change in the policy and organisation. So this illustrates, if I may say so—and I say it with great respect—the great danger of people confusing a deeply held conviction, a very strong conviction, with what one is entitled to claim is a conscientious objection to a particular form of action.
LORD CONESFORD: I do not differ from the noble Lord in thinking that many people in that trade union behaved well, and eventually a remedy was found; but what I ask him to consider is the position at an earlier stage, before a remedy has been found, when it is proposed to compel a man to join the union. That, I think, is the thing to which I should certainly have a conscientious objection, and I think many others would.
LORD DELACOURT-SMITH: I think these are matters which perhaps require a further debate. There is the question of joining and there is the question of leaving once one has joined, and I am bound to say that, in the case which the noble Lord has taken, I do not see a very deep distinction between the two. But this exchange illustrates the difficulties that can arise and into which one can get when dealing with what was originally intended as a concept to protect people who have a particular consistent pattern of conduct which shows in every aspect of their lives. One does not want them to be required to do something which genuinely conflicts with their deepest ethical convictions, but one has to draw what I agree may be a difficult line, but what is nevertheless a very real line, between such people and those with a very deeply held conviction on some particular political or social policy. I think this demonstrates the danger that, first of all, we run the risk of claims being established on grounds of conscience which could lead to a degree of cynicism about conscience—the kind of cases I quoted of possible claims which might be made against foreign organisations.
There are the difficulties, too, which can arise if people feel that they have a proper justification, though not on grounds of conviction. Conviction is important, but surely there is a line which
492
divides conviction from conscience; which divides people who, on grounds of conviction, feel strongly about a particular trade union situation, and those (I should have thought very limited number of people) who take the position that, irrespective of the union, irrespective of its leadership, irrespective of its policy, as a fundamental ethical matter they cannot join an association of that sort. Really, I think we shall get ourselves into difficulty, and we shall contribute some difficulties to industrial relations, if we do not try to clarify this point.
THE LORD BISHOP OF BLACKBURN: I think I ought really to postpone this, but the remarks the noble Lord made in suggesting that my best method would be to stay in the union—I should certainly try to persuade my branch secretary to do what he could—led me to think: Is this the attitude that you would approve, of the T.U.C. advising their constituent unions not to join in the Commission on Industrial Relations? Their advice, it seems to me, runs away from something which is essential to the working of this Bill.
LORD DELACOURT-SMITH: It is probably the sense of the Committee that in general we have pursued this matter as far as we reasonably can at this stage, and, that being so, I beg leave to withdraw the Amendment.
Amendment to Amendment, by leave, withdrawn.
5.16 p.m.
On Question, Whether Amendment No. 53, as amended, shall be agreed to?
LORD DELACOURT-SMITH: On the Motion which has just been put to the Committee, I should like to offer some observations in the light of our discussion. As I said earlier, this is the first appearance in this Bill of the agency shop, and this again is an issue to which we shall have to return. But here I must say that my noble friends and I feel, and have little hesitation in feeling and saying, that the agency shop is not a device which we believe ought to be introduced into the industrial relations of this country. If indeed the Government intend to press forward with this concept, we shall, of course, as the discussions on the Bill proceed, have to try to make ameliorations and modifications to minimise the inadequacies and unsatisfactory characteristics

493
of this device. But we cannot pretend that we like it.
The agency shop really derives from this unwise principle that the Government have so insistently pressed, and so unnecessarily pressed, of erecting into a constitutional right, almost, the entitlement not to join a trade union. Having taken up that unwise and unnecessary position—because to assert the right to Join a trade union does not of itself lead to any kind of compulsion at all—they leave the issue of whether people do or do not join, do or do not exercise their right to join, a neutral one; but having asserted the right not to be a trade unionist, the Government then had to face the brutal facts. They had to face the fact that, first of all, this would produce, as they themselves have recognised, a bonus, a justification, for those individuals who were willing to accept the results of other people's effort and the benefits derived from the spending of other people's money. Therefore, having made the initial error, they have had to involve themselves in these increasingly complicated arrangements for the agency shop and in the increasingly complicated provisions to govern the closed shop.
They have withdrawn very far, of course, from their fine assertion that nobody is under any compulsion of any kind whatsoever to join a trade union. They have had to withdraw from that because the facts of industrial life as they are recognised by both sides of industry mean that the individual right of decision, the individual complete freedom of decision, has to be qualified. Almost every right which we enjoy is not only an individual right but a social right. Every assertion and exercise of a right by an individual in a greater or less degree has its effect upon the exercise of the rights of his follow citizens, and we have to try to find a proper balance.
The Government have made their own task far more difficult by the way they have insisted on drafting and sticking to Clause 5. I must frankly say that to assert, on the one hand, this great principle of freedom, and then go on with the successive degrees of qualification, is a pretty nonsensical arrangement, and might in the case of some people he regarded as a dishonest arrangement. For what is being said to the worker in the agency
494
shop is: "Yes, you are perfectly free to join or not to join a trade union. But if you do not join you must in effect pay what is probably the basic contribution that the union imposes by its rules on its members. But, of course, you will not receive the individual, as distinct from the collective, services which the union provides. You will be a contributor; you will be taxed by the union; but you will have no representation in the union. You will not have an individual service from the union." If the union assists with the protection of an individual's dependents if he should be killed or injured, as do most unions, then the services given, the legal representation and so on, which are of great value to the individual worker, will not be available to a man under this agency shop agreement.
That is a very strange way of giving a man a right. If we are going to follow this method of giving people rights, then any Government of any kind in any sort of regime can subscribe very happily to the most liberal declaration of human rights. They can say, "You have complete freedom of speech, and freedom of every kind, provided that you do not mind if after the first time you exercise this freedom you find yourself in prison for the rest of your life." I am not suggesting that benevolent noble Lords on the Benches opposite are in that position. But really there is an element of humbug in saying that you are safeguarding a person's rights and then imposing a penalty on him when he takes you seriously.
This clause comes before the Committee in a rather new form. Some parts of it are old friends and we have down Amendments to delete them; but other parts are new. The change introduced by the new clause is that an employers' association can now enter into agency shop agreements, whereas previously this was restricted to one or more individual employers. This is not altogether a new idea. If I am not mistaken, the Engineering Employers' Federation have been pressing for a modification of this sort since the Consultative Document was published in October of last year. Can the noble Lord when he comes to reply say why the Government have now met their views after such a period of resistance? It would be useful if he could

495
develop the effects of this change in industrial terms. Is the change being introduced so that employers collectively can enter into agency agreements at a national level for the purpose of negotiating matters of industry-wide concern? Or is it being done so that employers' associations can at national level enter into agency shop agreements that will be binding at the local level? Or is the intention twofold? I am bound to say that it seems more likely that it is the second consideration that is principally in mind.
Does this mean, for example, that the Engineering Employers' Federation could, at national level, enter into agency agreements that would mean, say, that all welders employed by the firms in the Federation should belong to one specified union, or in lieu of membership should pay contributions to that union? If that is the intention, then I should have thought that quite a degree of disruption and/or rearrangement would ensue. Perhaps this sort of thing is not what the Government intend, but it seems to me that it would follow. The Engineering Employers' Association normally negotiate with the Confederation of Engineering and Shipbuilding Unions over the whole of the industry. I suppose that, theoretically, there can be an agency agreement in the terms provided by the Amendment between the Engineering Employers' Federation on the one hand and the Confederation on the other; but this seems to me merely to be putting existing arrangements on a more formal and legal basis, for there is nothing in the Bill at present (and there was nothing in the Bill as previously drafted, as I understand it) that would disrupt the present arrangements. It would therefore be useful to know why, if my presumption is correct, it is necessary to provide in the statute for formal ratification of what already seems to both sides to be a satisfactory bargaining arrangement. I make the digression that I suppose the Confederation would be eligible for registering as a trade union but only if all the constituent unions were registered. If one or more of them were not, then the Confederation would not be able to register as a trade union.
These are some of the questions which are bound to arise in our minds, and which lead me to put a point to the Government that I hope that they will
496
answer now or later. I began to put this question during our discussion of the Amendment to Clause 5 to omit that subsection which gave the right to be a non-unionist. We are bound to continue pressing this sort of question as the proceedings go on. What really are the Government aiming at? We have generalities by the bucketful about bringing law and order and all sorts of other desirable things into industrial relations; but we cannot get answers to the simple practical questions that really matter. I put again the question that I put the other evening: is it the desire of the Government to promote collective bargaining? If so, I think they are going an odd way about it. Is it their desire to see the present arrangements, which apply over the greater part of industry, gradually (or evenly speedily) disappear, and to replace them with an over-all pattern of agency shops, agency agreements and closed shop agreements? We really ought to know. Do the Government regard the agency shop system as superior to the voluntary collective bargaining which at the moment covers most of industry? Or are they neutral on that point? Do they think that the agency shop is rather an unsatisfactory substitute for the present arrangements, the agency shop agreement being necessitated by this doctrinaire desire to assert the right to be a non-unionist?
These are questions that we are bound to put. It is not clear whether the Government want to see the existing arrangements replaced by agency shop agreements or whether they are quite neutral on the matter. I am bound to say that it seems to me there are many features of the Bill which, if it is enacted in its present form, will make it difficult, even in those places where the arrangements are working to everybody's satisfaction, for the voluntary arrangements to remain unimpaired and unaltered. We really ought to know from the Government what they are aiming at. Are they aiming at covering industry broadly by agency shops and closed shops, or are they satisfied with the voluntary form of organisation, where that is working well and to the satisfaction of both sides? Here again I do not expect definitive answers to these questions. We are extremely reasonable people on this side of the Committee;

497
but we do expect, if I may say so, some indication that the Government understand the anxieties and the questions which we believe, for the guidance of people on both sides of industry, ought to be more clearly answered.
I am bound to conclude with this point: that whatever advantages or disadvantages the agency agreement principle may have—and I am inclined to think that the disadvantages outweigh the advantages—it is profoundly bad from one point of view. It does nothing to encourage—and on the whole does something to discourage—the ordinary individual worker from believing he ought to play a part in the collective regulation of his industry and to play that part through his trade union. The Government, and the noble Lord in particular, always say, "We understand, of course, why the trade unions object to the free rider'". Of course we object to the "free rider" but I must emphasise very strongly that so far as the non-members are concerned, I believe it is true of the vast majority of trade unions that it is not just their money that is wanted. Indeed, on this I agree with my noble friend Lord Shinwell (and I speak only for myself) and shall be very surprised if self-respecting trade unions will be very happy about receiving money from people who do not care to take up the obligations and the rights of membership.
Trade unions are not insurance societies. The trade union is not a vast firm of solicitors which collects money. A trade union is a living fellowship of workers, and if it loses that concept it loses a great deal of its value to the social and industrial life of this country. The fundamental reason why I object to this agency shop concept is that it puts all the emphasis on the financial contribution which the worker must make, and it leaves out of account the fact that we (and when I say "we" I am talking of the community here and not of the trade union movement alone) want to see workers in their trade unions, because that is the only way in which the individual worker can have any degree of influence upon the way the industry in which he works is conducted and the way its affairs are collectively regulated. Trade unions do not want to be treated as some kind of business agency which is satisfied with having the shillings—I should really
498
say new pence—it does not want; because what we want is the contribution that every individual worker has it in his power to give to make the industry in which he works a better place.
5.33 p.m.
LORD DRUMALBYN: I do not want in any way to interfere with the way in which the Committee wishes to discuss this subject, but I would point out I am not complaining in the slightest about the remarks made by the noble Lord, because this is a preliminary fusillade, if I may put it in that way. But the main debate on the agency shop ought, of course, to come on Clause 10, when we come to it; and I hope the noble Lord would agree with me that this is so. I am quite prepared to answer the specific questions which he asked, but I would ask tie Committee to exercise restraint at this stage because it would not he reasonable to debate the broad principle of the agency shop several times over when there are specific provisions from Clause 10 on which to deal with this matter. I am sure this would be the advice that would be given if there were a chair here which gave advice.
The noble Lord has asked me the specific question as to why we have made these changes in this Amendment, and that is a question which is, of course, very relevant to the new clause. It was not the Engineering Employers' Federation who asked for this: they pressed for the extension of bargaining right provisions to the employers' associations and the like; it was the recognition and bargaining rights, which are the preliminaries to agency shop agreements, for which they pressed. The reason for this was that we believed the words, "one or more employers", when we first tabled the Bill, would have allowed agency shop agreements between employers' associations and unions; but apparently this gives rise to legal difficulties about the word "agent". Some federations, including the Shipping Federation, have asked for the extension of the provision specifically to employers' associations in order to leave no doubt about the intention and application of the provisions. The noble Lord also asked a specific question about whether this was intended to alter the whole area of industry or particular plants. The answer is, both: it could cover the one

499
and it could cover the other. It depends primarily on the recognition provisions in each case. But before you can get an agency shop arrangement you must have a condition in which the employer recognises the particular union for the descriptions of workers concerned. It does not follow that it will cover the whole area for which the trade union represents those descriptions of workers. It can be limited or it can be wide. This is a pretty flexible provision, as I think we shall see when we come to Clause 10. Perhaps, with that short explanation, the Committee may now be prepared to let us have this new clause.
LORD SHINWELL: In almost every Amendment and on every clause in the process of our deliberations we have been advised, "What is the use of deploying further arguments? Had we not better wait until we come to the subsequent clause?" We have now had another example. The only reply to my noble friend Lord Delacourt-Smith has been, "Wait until we reach Clause 10, and then we can get down to brass tacks and we can get our teeth into the argument about the agency shop." Is that what the noble Lord said?
LORD DRUMALBYN: Will the noble Lord allow me to intervene? The reason for this lies in the structure of the Bill. We start talking about the rights of the individual. Here in this Amendment we are concerned with how the rights of the individual are affected by the agency shop. But how agency shops can be formed, and in what circumstances, and so on, we shall come to when we reach the provisions in Clause 10.
LORD SHINWELL: The noble Lord might have waited until I had reached some subsequent sentences and observations; I was not complaining about him. I am concerned about the chronological order of debate. We want an orderly debate—to take point No. 1, point No. 2, and so on. That is what we should have done. The noble Lord has just told us that in this particular clause we are dealing with one aspect of the problem. When we come to Clause 10 we shall have to cover the ground again, because it is quite impossible to divorce one aspect of the problem from the others. They are
500
all telescoped, whether we like it or not. But that was not the reason why I rose to address your Lordships. My noble friend Lord Delacourt-Smith asked the Government what they were aiming at. I should have thought that by this time, because of our somewhat prolonged deliberations, and in particular the long period of discussion and disputation that has taken place at the end of the corridor in the other place, we should be able to make up our minds about what the Government are driving at.
I put it in a sentence. Noble Lords opposite may disagree and dislike what I say, but I believe that the Government want to curb the trade unions. They may have good reason in view of the various episodes, events, turbulences, wild-cat strikes and all the difficulties which have occurred in the last few years, but they want to curb the power of the trade union movement; it is as simple as that. I know that sometimes noble Lords on the other side of the Committee—as indeed have right honourable gentlemen and honourable Members in the other place—have declared that their purpose is to strengthen the trade unions. They have a remarkably strange way of reaching that objective. Again, that is not the reason why I rose to speak; I want to put a question to my noble friend, Lord Delacourt-Smith.
I understand that he rose to ask a question to ascertain the views of noble Lords opposite, but at the same time to initiate a debate on the Motion whether the clause shall stand part of the Bill. I am anxious to make my contribution in this matter about whether it is desirable or otherwise to have the agency shop, the closed shop, and all the other paraphernalia that has been injected into this remarkable piece of legislation, or proposed legislation. But, frankly, I do not see much purpose in deploying arguments at this stage, and I will give the reason why. What is the purpose of it, unless at the end of the debate we are going to indicate our resentment, our disagreement, on what is undoubtedly a fundamental issue, a vital part of this potential legislation—and divide?
After a previous discussion, when I thought that we had without doubt gained the better of the argument, my noble friends on the Opposition Front

501
Bench decided not to proceed and to withdraw the Amendment under discussion. Either these Amendments have been carefully and meticulously examined in order to ensure that they are worth while presenting to the Committee, or they are put down simply for the purpose of a preliminary discussion. I like to know where I am in matters of this sort. Having had a long discussion on the previous Amendment, it seemed to me that we ought to have displayed our resentment and gone into the Division Lobby. If we are going to argue about the defects, errors of judgment and the like, embodied in this clause, which is now Clause 5, I want to know whether we are going to divide at the end. If we are merely going to ask some questions, I do not want to proceed at all—not at this stage. I say that because I am wondering when we are going to come to some conclusion about this matter.
I noticed the other day—I discovered this only by reading the OFFICIAL REPORT—that the debate on this Bill continued one morning until a quarter to two. That is not the way to conduct proceedings in an Assembly of this kind. We had a lot of it in the other place, in my experience over the years, but I expect something different from this august Assembly; a more orderly proceeding; a more logical approach; the presentation of a case in as few words as necessary, and then for noble Lords to come to a decision. But that is not what we are doing, and I want to know whether we are going to end this somewhat sordid and squalid affair before next Christmas. I want to know whether it is going to interfere with my holiday period. I think we ought to know. Can we get some conclusion about this? That is the question which should be addressed to the noble Lord, Lord Drumalbyn, to find out what is in his mind. Perhaps the noble Lord would ascertain the views of the noble and learned Lord the Lord Chancellor who I know—although he regards himself only as a legal luminary with expertise on legal matters—can spread himself all over the place when he is in the mood. The noble and learned Lord might be asked for his opinion also. Can we get some opinion about this before we proceed with our discusison?
502
On the other hand, if my colleagues on the Opposition Front Bench, supported by their Back Benchers, are determined to proceed to a Division, I am quite prepared to take part in the discussion and expose this iniquity of the proposed agency shop and the closed shop which has been injected into this potential piece of legislation. I observe that the Chairman is looking round at me and asking himself how long I am going on——
SEVERAL NOBLE LORDS: Hear. Hear!
LORD SHINWELL: Exactly. I was right; I could see it in his eyes. I will go on as long as I feel that I am in the mood to go on; but that is not why I rose to address your Lordships. It was for the purpose of ascertaining not only the opinion of the noble Lord on the Government Front Bench, but also the opinions of my own colleagues. What are we driving at? I heard one noble Lord say this afternoon that we are seeking co-operation with the Government. Well, I am not. They are a nice lot of people, I agree, and they are very friendly people; but I do not want to co-operate with them in matters of this sort. I want to oppose them, tooth and nail; hook, line and sinker. That is why we are here. But ought we not to be properly informed so that we know what we are going to do in the subsequent discussions? I am sorry to have intervened in this fashion, but I have been sitting here wondering what it is all about, and it is about time we were told what is the intention. We know what the Government's aim is: what is our aim? Are we going to fight the Government every inch of the way? If so, I am with my noble friends. But if we are not going to fight the Government, I do not see that there is much purpose in preceeding.
5.50 p.m.
LORD POPPLEWELL: I am sorry that the noble Lord, Lord Drumalbyn, did not answer the pertinent question put by my noble friend Lord Delacourt-Smith: what is the reason for this new clause. Is it that the Government are not satisfied with the present voluntary basis on which trade unions operate? If so, what is wrong with it? Where are the weaknesses? Why are we not told before we are asked to approve such radical changes? Is it that the trade unions are

503
too powerful? Surely we are entitled to ask that, failing any reason being given. If they are too powerful and if they exercise their power in an unreasonable way, we should be told. We have been assured, times out of number, that the Government supporters and the Government as a whole are seeking, somehow, to strengthen the trade unions. In what way does the movement want strengthening? Where are the weaknesses? Surely these are questions that we are entitled to ask. We have been told that we have the finest trade unions in the world—I think it was the Minister of Employment who said that only a little while ago. If that be so, why introduce Clause 5 in this way, and why introduce this particular clause dealing with the rights of the individual to join the union? The unions and the organised workers do not seek legislation for that. They will do it; they will join into organised ranks. They fought that battle very many years ago, and they have gone from strength to strength. as the Donovan Commission Report indicates.
Therefore this question of the right to join a trade union is a lot of baloney and nonsense; let us face it. The men on the shop floor will tell anyone whether they are going to organise or are not going to organise. I have no idea why the Government should attempt to make so many definitions of these rights, because when we get to the point of trying to define this and define that, we know how great are the difficulties that arise. Therefore I just cannot understand the reason, unless we return to that old theme: that it is a question of bashing the unions and the Government are determined to do it. If not, tell me why. We have asked this question repeatedly. The Trades Union Congress have wanted discussions with the Government, and what has been the Government's reply?—" Accept the basic principles of what we tell you, and we are prepared to listen to what you have to say." It has not been a question of, "Let us meet and see whether there is anything wrong. Can we make a joint effort?"
I thought it was very intriguing, having in mind that line of approach of the Government, when we heard the noble Lord who was just speaking on behalf of the Government state quite categoric-
504
ally that the reason why it was necessary to bring in this new clause dealing with employers' associations was that the request had come from the employers' associations; but still they did not talk with the T.U.C. boys. They said: "Let us discuss these things in principle", but according to the noble Lord's own words it was a request which came from the employers' associations—in other words they were prepared to accept and discuss in principle these items of the Bill, yet refused to do so with the T.U.C. It just is not good enough to speak about industrial relations in this way.
When this Bill ultimately becomes an Act—and I think it will be a long time before it does—when the Government ultimately decide to implement it, I am afraid they will find that both sides of industry will be involved in so many difficulties, not of their own seeking, that it will not be in the best interests of our country as a whole. I think that Clause 5 and everything it stands for is bad, and I sincerely hope that our Front Bench is going to vote against it.
LORD PARGITER: In view of the fact that we are unlikely to get a straight answer to the question my noble friend has just put, as to the reason for Clause 5, possibly I can give him the answer as to why Clause 5 appears. We all know that before this Bill was introduced in the Tory propaganda up and down the country the closed shop was anathema, the one thing they were determined not to have; they were going to have a free-for-all, with no question of a closed shop. They called it an agency shop in order to get over calling it a closed shop, because they do not like the words, but it comes to pretty well the same thing. They found of course, when they got down to drafting legislation, that in certain industries they could not do without it, that the very function of the industry made it necessary that there should be some formal kind of organisation which could be dealt with. Therefore, we have Clause 5 which provides for an agency shop, and the further Amendment which brings in the associations, because in certain cases they cannot deal with it without certain associations.
These are the facts of life so far as the Tories are concerned. They have been driven to this, not because they like it, but because their original propaganda was so

505
out of touch with the facts of life—we do not expect Members on the other side to know much about the trade union movement or closed shops, and things of that kind. The facts of life came very clearly not only from the trade union side, not only in another place, but to an extent that the Government, much against their will, have been forced to accept the principle of trade union recognition in a closed shop form. Those are the real reasons why the Tories have got this clause in the Bill. They will not want to admit it, but so far as I can see that happens to be near the truth of the matter.
5.55 p.m.
LORD DAVIES OF LEEK: I understand we are now discussing that this proposed new clause stand part. Consequently, I ask the question, why was this clause introduced? We are told in the rubric the purpose behind the moving of this new clause by the noble Lord opposite namely
"Modification of rights by agency shop agreements."
But if one reads the words at the beginning of the Bill—I will not read them out because most of them are in Clause 5—the right is there given to form independent unions, and there is evolved the system of agency shops.
I pointed out earlier to-day the illogicality of this Bill. This sort of thing is happening all along. First of all—and I have never before seen such a thing in my Parliamentary career—the first clause mixes ethics and jurisprudence. That makes it an impossible clause; it should have been a Preamble. To-day, every time we ask a 64,000 dollar question, "What does this mean?"—and I have used the phrase that this is like the South Sea Bubble—we are told: "Agree to this, because later on we will tell you what it is all about, when we teach you what the agency shop is." The entire Bill is like this in its phraseology and draftsmanship.
As the noble Lord, Lord Shinwell, has just pointed out, Clause 10 is miles away from the clause we are discussing to-day; consequently, this Committee are in the position of all the time talking all round the question. This is because of the
506
courtesy and decency of your Lordships. In another place we should be ruled out of order in 90 per cent. of the speeches which are being made on this matter. But your Lordships are unable anyway, to keep yourselves in Parliamentary order in this discussion because of the distances between the relevant parts of the Bill.
When I am asked to-day to approve of this clause standing part, I am against it. I will not talk about the agency shop now. The opportunity will arise to talk about it when we reach Clause 10. I want to try to be fair to the Committee, and not to bore them. I think it would be unfair practice on my part to discuss Clause 10, which is an effort to undermine the traditional trade union movement, by inventing the agency shop. We shall discuss the agency shop later on, a few months from now.
Therefore I sincerely hope that we on this side of the Committee, without any asperity, will indicate to the trade union movement that we feel this modification has been discussed with the employers. I hope that the question my noble friend has asked will be answered. I want to put a corollary to that matter. Maybe my noble friend did. If this modification was discussed with the C.B.I. or with the employers, was it discussed with the T.U.C? I should like to know that as well. In any case, if not (and even if it were) I feel sincerely that we on this side of the Committee should vote against this modification of Clause 5 as presented to us to-day.
6.0 p.m.
Loan DRUMALBYN: I hope that I may now be able to satisfy noble Lords on the points they have raised. Let us first get this clear. We believe in principle that. whatever is right or wrong, the pre-entry closed shop is wrong. We hold that view firmly, because it will deny a man the right to employment if he is not a member of a particular trade union. The second point is this. In general, we think it is right that a worker should have the right, as between his employer and himself, to chose which union to belong to or to belong to no union at all. These are fundamental rights.
But, of course, that does not mean that he has the right to join any trade union at all. This is a matter between him and

507
the union and also a matter for arrangement between his employer and the trade union.
Noble Lords have made a certain amount of play with the fact that we have given way on this. This was always envisaged, that there would be circumstances in which it would be right, where it was appropriate in agreement between an employer and trade unions, that there should be an arrangement under which workers would have to belong to a trade union or else pay equivalent contributions. What we are here discussing is simply whether your Lordships want the right to belong or not to belong to a union to be absolute, or whether there are circumstances in which an employer may or must insist that all workers of specified descriptions should belong to a union or else pay contributions equivalent to union dues. I cannot think that noble Lords would want to disagree with that as an objective, however it is achieved. We shall come to the way in which it is achieved when we discuss Clause 10.
The noble Lord, Lord Popplewell, asks, broadly, what is wrong with the present system. My goodness! We set up a Royal Commission years ago—the noble and learned Lord, Lord Donovan, is sitting here and he told us what was wrong with the present system. Basically what we are seeking to do—I am not talking about the means—is to achieve improved plant bargaining, better procedure agreements and the removal of causes of friction. These are things with which we would all agree.
LORD DAVIES OF LEEK: I think it is an unfair practice to drag in the noble and learned Lord, Lord Donovan. Did he suggest the agency shop and its inclusion in Clause 5?
LORD DRUMALBYN: No. I know that one gets tired at listening to what is said, but I think that the noble Lord did not listen to what I was saying. Here we are simply asking noble Lords to agree to the principle of the agency shop, which will mean that workers do not have an absolute right to refuse to belong
to a trade union and should either belong to a union or else pay an equivalent contribution. I do not think that noble Lords would feel inclined to disagree to the clause on those terms.
The noble Lord, Lord Popplewell, asked the reason for the new clause. I hope that I have given him the reason. It is simply that it was thought better to separate out what are called the modifications, the particular circumstances, in which a man would not have an absolute right of joining a union into a separate clause and, secondly, to ensure the original intention that employers' associations should have the same power of dealing with agency shop agreements in conjunction with the trade unions as have individual employers. We thought that the original phrase "employer or employers" covered that situation, but it was pointed out to us that it might not do so. We looked into it and agreed with the observation that was made. But to say that that was because we were negotiating on basic principles with particular federations, with the C.B.I. and all the rest, whereas we did not negotiate with the T.U.C., is an absolute travesty of the facts, as the noble Lord knows very well indeed.
LORD DELACOURT-SMITH: We appreciate the point of the noble Lord that the agency shop as a conception is really embodied in Clause 10 of the Bill but, in view of the way the Government have chosen to construct the Bill, we encounter it for the first time in this clause. As I think I made clear when I addressed the Committee, following our return to Amendment No. 53, this is something we may seek to modify in subsequent proceedings, but we cannot pretend that we like the agency shop or the proposals in this new clause. In these circumstances, I have no alternative but to invite my noble friends to divide the Committee.
6.6 p.m.
On Question, Whether the said Amendment (No. 53) shall be agreed to?
Their Lordships divided: Contents 132; Not-Contents, 48.

CONTENTS

Abergavenny, M.

Amory, V.

Barrington, V.

Ailwyn, L.

Balfour of Inchrye, L.

Beauchamp, E.

Airedale, L.

Barnby, L.

Beaumont of Whitley, L.

Belhaven and Stenton, L.

Garner, L.

Milverton, L.

Belstead, L.

Geddes, L.

Molson, L.

Berkeley, Bs.

Gisborough, L.

Monck, V.

Bessborough, E.

Gladwyn, L.

Monckton of Brenchley, V.

Blackburn, Bp.

Glasgow, E.

Napier and Ettrick, L.

Braye, L.

Goschen, V. [Teller.]

Northchurch, Bs.

Brecon, L.

Gray, L.

Negent of Guildford, L.

Bridgeman, V.

Greenway, L.

Ogmore, L.

Brooke of Cumnor, L.

Grenfell, L.

Orr-Ewing, L.

Brooke of Ystradfellte, Bs.

Grimston of Westbury, L.

Rankeillour, L.

Burgh, L.

Hacking, L.

Rathcavan, L.

Byers, L.

Hailes, L.

Reading, M.

Carrington, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Reay, L.

Chesham, L.

Remnant, L.

Clwyd, L.

Harcourt, V.

Roberthall, L.

Colgrain, L.

Harvey of Tasburgh, L.

Rockley, L.

Conesford, L.

Hatherton, L.

Rothes, E.

Cork and Orrery, E.

Henley, L.

St. Aldwyn, E.

Cottesloe, L.

Hives, L.

St. Helens, L.

Courtown, E.

Hood, V.

St. Just, L.

Cowley, E.

Howard of Glossop, L.

St. Oswald, L.

Craigavon, V.

Hurcombe, L.

Sandford, L.

Croft, L.

Hylton-Foster, Bs.

Savile, L.

Cromartie, E.

Ilford, L.

Selkirk, E.

Daventry, V.

Inchyra, L.

Sempill, Ly.

De Clifford, L.

Kemsley, V.

Sinclair of Cleeve, L.

Denham, L. [Teller.]

Killearn, L.

Somers, L.

Derwent, L.

Kilmany, L.

Stamp, L.

Drumalbyn, L.

Kinnoull, E.

Stonehaven, V.

Dudley, E.

Lauderdale, E.

Strange of Knokin, Bs.

Dundonald, E.

Lloyd, L.

Sudeley, L.

Dunleath, L.

Lothian, M.

Swinton, E.

Eccles, V.

Loudoun, C.

Templemore, L.

Effingham, E.

Lucas of Chilworth, L.

Tenby, V.

Ellenborough, L.

Lyell, L.

Teviot, L.

Elliot of Harwood, Bs.

MacAndrew, L.

Thurlow, L.

Emmet of Amberley, Bs.

McCorquodale of Newton, L.

Vivian, L.

Falkland, V.

McFadzean, L.

Willingdon, M.

Ferrers, E.

Margadale, L.

Windlesham, L.

Ferrier, L.

Massereene and Ferrard V.

Wise, L.

Fortescue, E.

Merrivale, L.

Wolverton, L.

Fraser of Lonsdale, L.

NOT-CONTENTS

Archibald, L.

Gaitskell, Bs.

Sainsbury, L.

Ardwick, L.

Gardiner, L.

St. Davids, V.

Balogh, L.

Garnsworthy, L.

Segal, L.

Bernstein, L.

Hilton of Upton, L.

Serota, Bs.

Beswick, L.

Jacques, L.

Shepherd, L.

Birk, Bs.

Janner, L.

Shinwell, L.

Brockway, L.

Kennet, L.

Snow, L.

Brown, L.

Leatherland, L.

Stonham, L.

Buckinghamshire, E.

Llewelyn-Davies of Hastoe, Bs.

Stow Hill, L.

Champion, L.

McLeavy, L.

Strabolgi, L. [Teller.]

Collison, L.

Moyle, L.

Summerskill, Bs.

Davies of Leek, L.

Pargiter, L.

Wells-Pestell, L.

Delacourt-Smith, L.

Peddie, L.

White, Bs.

Diamond, L.

Phillips, Bs. [Teller.]

Williamson, L.

Donaldson of Kingsbridge, L.

Plummer, Bs.

Wootton of Abinger, Bs.

Douglass of Cleveland, L.

Popplewell, L.

Wynne-Jones, L.

On Question, Motion agreed to.

Resolved in the affirmative, and Amendment agreed to accordingly.
6.18 p.m.
Clause 6 [Pre-entry closed shop agreements to be void]:
LORD BEAUMONT OF WHITLEY LORD BEAUMONT OF WHITLEY moved Amendment No. 54:
Page 5, line 39, at end insert ("save that the Secretary of State may provide for the
510
exemption of certain agreements from the provisions of this subsection through affirmative resolution of Parliament, and that such agreements as exempted, will be legally enforceable contracts not subject to subsection 1(b) of Clause 32 of this Act. Such agreements exempted by the Secretary of State shall be subject to investigation by the Monopolies Commission prior to an exemption resolution being laid before Parliament.")
The noble Lord said: I beg to move the Amendment which stands on the

511
Marshalled List in the names of my noble friends and myself. At this stage of the Bill this Amendment should be regarded as a probing Amendment. I have not yet taken the step of putting down the Amendments which would be consequential upon its passing, and I apologise to the Committee for the fact that I think that in the middle of the Amendment there is somewhat slapdash drafting. However, I think that its purpose is clear. It is common ground, I think, in most parts of the Committee that the principle which the Government are putting forward against the closed shop, and which basically we support, needs one or two, and possibly more, exceptions. This became obvious in another place when the case for Equity as one of these exceptions was put forward. Another union for which a case was put forward strongly was the Seamen's Union. The Government have gone a certain way towards meeting these points by tabling the new Clause 16 and Schedule 1.
I do not think that this new clause is entirely satisfactory. There are fairly obvious objections to it. First of all, there is no provision for the union to apply unilaterally for the approval and enforcement of the closed shop; and it is to be an unfair practice to put pressure on an employer or an association of employers to induce them to join in an application. There is no provision or procedure whereby an agreement can be made binding on non-member employers; any approved closed shop agreement can be made only with the registered association of employers; and it is far from clear that employers' associations are to become registered associations under the Act. These are defects that I think are in Clause 16 and Schedule 1. There are a number of Amendments down in the names of the noble Lord, Lord Archibald, and one or two other noble Lords which I think would go a long way to rectify these defects.
We are putting forward what we think is a simpler solution, rather than these long new clauses and schedules and the various Amendments which will be necessary to them. We are putting forward in this Amendment the proposition that the Secretary of State may provide for the exemption of certain agreements from the provisions which ban the pre-entry
512
closed shop by Affirmative Resolution of Parliament. Obviously, there will have to be regulations, and some consequential Amendments following on this. We think it is basically a much simpler solution. It was put forward and slightly discussed in another place, but the Government spokesman did not choose to answer on this when he was replying to Amendments that were being discussed together. It is for this reason that we put forward the Amendment.
I can see that one of the major objections to this which may come from the Government is that a future Labour Secretary of State, if they are prepared to envisage the possibility of such a thing, may decide to exempt many trade unions from this part of the Bill for no particularly good reason. We have put in two provisions in this respect which we think are both safeguards and deterrents. The first is that any application to be exempted from this part of the Bill should have to go before the Monopolies Commission, to make certain that it is not establishing a monopoly situation of labour against the national interest. At the same time, we are hoping to lay down—and this is where I think I may have included an error of drafting in the Amendment—that any bargaining contracts entered into by a union which is exempt from this part of the Bill, and therefore has an approved pre-entry closed shop, should be enforceable; that they should not be able to take advantage of the let-out which they will have and claim that it is not enforceable by agreement.
The reason for this is that, first, we think it is a deterrent for those unions which would be ant to claim exemption on unnecessary grounds; and secondly, it seems to us logical that, where you have a pre-entry closed shop, and therefore every person involved in the agreement is a member of the union, the union should be able to bargain on their behalf completely; it represents them, and therefore is entitled to say: "This is what we all believe." There is a much greater case for enforceability where there is a closed shop than where there is not. On the whole, we think that enforceability of contracts is one of the weaker parts of the Bill, and we have said so often. But in this case we think it could be used as a safeguard.
I know that we all, including the Government, want to do the best we can by Equity, the Seamen's Union, and any other union which may find itself in this peculiar position of really needing a closed shop. The Government have gone a long way towards this already. Lord Archibald's Amendments will, I think, improve the position a lot. But I should like the Government to have a look at this proposal which we nut forward, to see whether it does not have some merits as being a simpler solution to the whole problem. I beg to move.
EARL FERRERS: As the noble Lord has explained, this Amendment certainly has far-reaching effects on the Bill as it stands. It is really an attempt to modify the provisions terminating the pre-entry closed shop. I think the Amendment has two limbs to it. First, it gives the Secretary of State power to grant exemption of agreements; and secondly, it incorporates the Monopolies Commission. I should like to consider those as two separate things.
The exemptions would be proposed by the Secretary of State, and this would give him a pretty clear run to use his discretion on whether to grant exemptions or to withhold them. Admittedly, he would have to submit his proposals to the Monopolies Commission, and thereafter they would have to come to Parliament for Affirmative Resolution. But it gives the Secretary of State, and him alone, the discretion whether the exemption should be granted or not. The Amendment provides no criteria on which such exemptions should be granted: indeed, the decisions could be—and I think the noble Lord hinted that they might be—political decisions. This of course would make the whole Amendment at variance with the general concept of the Bill, which aims to make the Bill—once it becomes law—subject to civil law, and to be interpreted by the courts, and that the Government should not interfere. For those reasons, we feel that it would be undesirable for the Secretary of State to have these particular powers.
Then the noble Lord suggests in his Amendment that such exemptions should be subject to the Monopolies Commission, as a sort of longstop against any extreme examples. But the absence of criteria for exemption would make it
514
difficult for the Monopolies Commission to comment on this. They could only offer evidence to the Secretary of State, and eventually to Parliament, of the likely effect of the closed shop versus the consequences of having no such agreement. They could not properly formulate a view whether the advantages would outweigh the disadvantages. I suggest that possibly the biggest objection—if one can call it an objection, in the nicest sense of the term—to the idea that the Monopolies Commission should be incorporated is that it insinuates that the principles applying to the assessment of commercial monopoly power might be the same as the principles which apply to the assessment of labour monopoly power. I would think therefore that the Monopolies Commission is really an unsuitable body to be used in this particular way. Both sides of industry would realise, as a result of this, if this Amendment were to be passed, that real power lay with the Secretary of State, and they would inevitably try to secure his support for their particular case. It is our desire, once this Bill becomes law, to keep the Government out of these arrangements, and for that reason I would hope that the noble Lord would not press his Amendment.
6.30 p.m.
BARONESS WHITE: If I might comment briefly on this proposed Amendment, we have a certain sympathy with the reasons which, so far as I can understand him, have led Lord Beaumont of Whitley and his noble friends to put it upon the Paper. In particular, we, too, are very much concerned about the position of Equity which, although the Government appear to think they have gone some way towards meeting their difficulties, is nevertheless still, I have just been assured, extremely anxious and concerned. They have made full representations; I do not think any union could have done more to try to inform the Government of the true nature of their problems. As they have pointed out, unless they can have some special arrangements of a pre-entry nature it will be impossible for them to carry out the casting arrangements which are current in the industry, and in certain parts of the film industry, too, which have the entire support, as I understand it, both of the management and of the unions.

515
We are dealing in the theatrical and cinematograph professions with very badly overcrowded professions with high unemployment. There are no objective qualifications for being a theatre or film actor other than being engaged by an employer, and if one does not have some kind of regulation by agreement in the profession there will be a completely chaotic condition. This is not only in the star parts in the play or film—they can more or less look after themselves—but many actors and actresses depend for their bread and butter on having a fair chance of employment, and unless the employers and the unions are allowed to make arrangements for this they feel that the whole arrangements that they have built up over the years will crumble. They do not, as I understand it, feel happy that the proposals in Clause 16, and various other proposals, are really going to be sufficient. They are particularly concerned about this Clause 6, and although we shall be coming later to some proposed Amendments, the Amendments will make it even more difficult for them. If anybody has been refused a job and can call this clause in aid, it will make it even more difficult to have any ordered entry into the profession, or any ordered arrangements for employment. I know that we shall be discussing Equity and their problems again, but I think it is right, as the noble Lord, Lord Beaumont of Whitley, has mentioned them in this Amendment, to bring them in here too. We feel that the Liberal Amendment has some substance.
On the other hand we feel some sympathy with the Government on the suggestion of bringing in the Monopolies Commission. We feel that in any case there is going to be enough interference with trade union arrangements in all parts of this Bill, but to bring in the Monopolies Commission, which was established in quite a different context and for different purposes, does not seem to us to be entirely appropriate. We can appreciate the difficulties of noble Lords who have supported this Amendment. They feel that there should be some kind of investigation, some kind of safeguard, but I think the problem they had to face is just inherent in the Bill. If one is going to have all this kind of statutory regulation and limitation of agreements which can be voluntarily reached by both
516
sides, one is under some obligation to think up some equally complicated mechanism for countering some of the proposals in the Bill. Before we dispose of this Amendment we would like to have some further information from the noble Earl, Lord Ferrers, about the position of Equity in relation to this Amendment.
LORD SHINWELL: I do not know whether the noble Lord, Lord Beaumont of Whitley, in moving this Amendment was primarily concerned about Equity or the theatrical profession. I rather suspect that he was concerned about the possibility of a collective agreement, an agreement between an employers' organisation, or an employer and a trade union, or a body or group of trade unions which might be against the national interest and might assume a monopolistic form. I gather that is what is in his mind. Obviously the reference to submission to the Monopolies Commission seems to indicate that that is his purpose. it is possible, if this is what he has in mind, that an agreement could be entered into, one of a collective character, which would be subversive of the national interest. It could be an agreement between the members of the printing unions, and particularly newspaper organisations or a group of newspapers, which might lead to some form of monopoly to the detriment of other sections of the newspaper industry. That would be one example.
Indeed, for several years in the past suggestions have been made of the possibility of employers' organisations coming to agreements of a collective character with trade union organisations, irrespective of the needs of consumers. I can understand why the noble Lord, Lord Beaumont of Whitley, is anxious to avoid that, if that is his purpose. Quite frankly, I think that asking that there should be a submission to the Monopolies Commission is asking too much. This Bill is cluttered with all kinds of organisations—industrial courts, industrial tribunals, commissions of various kinds, and no doubt as a result of the creation of a central commission there will be various regional commissions and the like, and in the long run there are the courts of justice to be taken into account. I think that is as much as the country can stand, and to add to that this proliferation of organisations responsible for supervising the

517
implementation of this legislation would be asking too much; it is going too far.
I should be inclined to advise my noble friends to support the purpose of the Amendment if the intention is to prevent the formation of collective agreements which could be subversive of the national interest. I mean by that something which might affect the export trade, for example, or lead to an increase in imports to the disadvantage of our balance of payments, or perhaps more likely the raising of prices which would be detrimental to the interests of the general body of consumers. It can be left to the Secretary of State, or some department of the Secretary of State, to ascertain whether any item in the collective agreements is inclined to be subversive to the national interest. If the Secretary of State of a Government Department, like the old Ministry of Labour or the Board of Trade, does not have the ability, wit and knowledge to deal with situations of that kind, then the matter can be raised in Parliament.
Reference is made to an Affirmative Resolution. We have to be careful about this legislation because there are bound to be regulations of various kinds and these will require Affirmative Resolutions in both Houses of Parliament. We have enough legislation already, and if there is going to be a proliferation of legislation enactments, Statutory Instruments, and the rest of it, it will be more than both Houses of Parliament can tolerate. We are crowding both Houses of Parliament with an excess of legislation, and we have to be careful. I doubt whether the noble Lord, Lord Beaumont, has given thought to these aspects of his Amendment and the possibilities arising from its acceptance. I suggest that this Amendment should be considered and probably be brought again at a further stage in our proceedings, but it is hardly acceptable at this stage.
EARL FERRERS: I was interested to hear what the noble Baroness, Lady White, said about this Amendment, and about Equity in particular. I was also glad to hear that the noble Lord, Lord Shinwell, agreed with us, at least on one point: that he did not think that the inclusion of the Monopolies Commission would be the wisest course to take. We
518
are fully aware of the problems of the acting profession. They have made real representations to the Government in the past, as the noble Baroness, Lady White, knows only too well, because of their peculiar circumstances. They were concerned that they should be allowed to operate a closed shop and, in particular, a post-entry closed shop.
BARONESS WHITE: A pre-entry closed shop.
EARL FERRERS: As I understand it, they have been concerned that they should be allowed to operate a closed shop, and it is for the reasons which have been put forward by the noble Baroness, and others who have been engaged on their behalf, that various arrangements have been made so that when the time comes and this Bill is law provision is made so that they can try to operate in the way that they have in the past reasonably been operating. Clause 16 is a clause which is so framed as to enable certain spheres of workers who will be caught by this Bill to operate the closed shop principle. It is part of the Government's view that the pre-entry closed shop is not necessary or desirable, for the reason that we believe it is not necessary that somebody should have to show, on application to a person for a job of work, that he ha, first become a member of a union.
We will certainly take the points which the noble Baroness has raised and have a look at them, because I know that she is concerned to see that Equity is adequately provided for. I suggest that this Amendment would not have the best results possible because of the reasons which I have already given: it gives a power to the Secretary of State which must, necessarily, up to a point, be a political power, which we believe to be wrong, and it incorporates the Monopolies Commission, which it would be equally improper to incorporate in this type of legislation.
LORD DIAMOND: I understood the noble Earl to say that the purpose of the Government in this clause, and I think in Clause 16, is to enable organisations, such as Equity, to carry on their existing practices. Would he confirm that that is a correct understanding of what he said?
THE LORD CHANCELLOR: It is rather a wider question. What the noble Earl said was that the kind of situation which Equity had in mind they were already doing. There are other organisations involved, and until one knew exactly what those organisations were one might be going widely beyond the scope of what my noble friend said. The object of Clause 16 is to provide for a post-entry closed shop, on the conditions set out in Clause 16, to enable Equity to do what they have been doing.
BARONESS WHITE: Within the past hour I have been told by a spokesman of Equity that Clause 16 is not adequate, and they are very much concerned about Clause 6.
THE LORD CHANCELLOR: My information—and it has also come within the past hour, although it has not been so direct from the horse's mouth as that of the noble Baroness's—is that Equity are more interested in the conditions of a post-entry closed shop, and I understand that what they are doing at the moment does not amount to one. Whether it does or does not is something we cannot discuss on this Amendment. My information is that their whole case is that it does not amount to pre-entry closed shop. Whether they consider Clause 16 is adequate, and whether it is adequate, does not arise on this Amendment. This Amendment is about the pre-entry closed shop, and that we are opposed to.
6.48 p.m.
LORD BEAUMONT OF WHITLEY: There is one question I should like to ask, and it is whether or not what Equity is seeking is a post-entry closed shop or a pre-entry closed shop. I do not see how, in view of this clause, the Government can say that they are against pre-entry closed shops. I am sure the noble Earl can put me right. The description of Clause 6 is:
"Pre-entry closed shop agreements to be void."
There are two subsections. The main one, subsection (1), is presumably saying that they are void. The second says:
"Subsection (1)…shall not apply…"
to agreements under,
"Section 16 of this Act."
That must mean that agreements under Clause 16 are pre-entry closed shop
520
agreements, or could be, yet the Government say they are totally against them. I do not understand this. If the noble Earl is unable to reply at the moment, perhaps he would think about it before we get to the Amendment of my noble friend, Lord Archibald.
Before I ask permission to withdraw this Amendment, there are some points which have been raised to which I should like to reply. I am always grateful for the generalised good will of the noble Lord, Lord Shinwell. I was thinking of Equity when I produced this Amendment, and I do not think my Amendment could have quite the construction that he put on it, because it is dealing with the setting up of pre-entry closed shops and not with any agreement which would happen after they are set up.
I do not accept the irrelevance of the Monopolies Commission. This has obviously struck both Front Benches as being extraneous, and there was a certain suggestion that it was something I had thought up just because one had to think up some kind of safeguard. It is nothing of the sort. It has always been the view of the Liberal Party, or at least it has been its view for a very long time, that monopoly situations in labour, just as monopoly situations in commerce, are functions of the Monopolies Commission and that this is something the Monopolies Commission should be dealing with. Therefore, when we put this Amendment in this form it is not just a case of thinking up a special piece of machinery; it is going back to a basic principle of our thoughts on monopolies and industrial relations.
However, having said that, and not accepting the arguments against it, I would say that I do not accept the argument of the noble Earl about the Secretary of State. This is possibly not the right way to tackle the problem, in a Bill which quite rightly is trying to keep Government rather off the scene and making everything subject to Civil Law. In view of that, and with the hope that we shall receive a straight answer to the question that I put about the pre-entry closed shop a little later on, I beg your Lordships' leave to withdraw this Amendment.
Amendment, by leave, withdrawn.
LORD DRUMALBYN: Perhaps this is a convenient moment to ask for the

521
House to resume. In the circumstances we could perhaps give the little extra latitude until 8.30. I beg to move that the House do now resume.
Moved, That the House do now resume. —(Lord Drumalbyn.)
LORD BESWICK: I wonder whether we could get some understanding. Is this another 10 minutes off the time to be taken on the Industrial Relations Bill; or is it intended that we should resume 10 minutes earlier?
THE LORD CHANCELLOR: If I have been in some way responsible for this I would apologise, but I think it is for the convenience of your Lordships. It struck me as quite impossible that the next Amendment would be finished in 10 minutes. What my noble friend said was 8.30 firm for resumption. I think that that is fair because the Law Reform Bill is likely to take all of an hour and a half, and it is far better to give a definite time on the clock for it, even if it does involve 10 minutes off this Bill. I much regret that, but I think probably this course is for the convenience of your Lordships. If it is not, we can go on until 7 o'clock, as originally proposed.
LORD BESWICK: So long as it is understood that it is not this side of the Committee that is delaying progress on the Industrial Relations Bill, and we are not expected to go later in the evening as a consequence.
On Question, Motion agreed to, and House resumed accordingly.

LAW REFORM (MISCELLANEOUS PROVISIONS) BILL
6.53 p.m.
LORD STOW HILL: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Stow Hill.)
House in Committee accordingly.
[The LORD ST. HELENS in the Chair.]
Clauses 1 to 3 agreed to.
LORD DIPLOCK LORD DIPLOCK moved Amendment No.
After Clause 3, insert the following new clause:
Periodical payments to widows and other dependants
".—(1) In any action for damages brought under the Fatal Accidents Acts, 1846 to 1959, the court shall have power to make an order (in this section called a "periodical payments order") for the payment by the Defendant to any dependant for whose benefit the action is brought of such sums of money at such intervals and during such period as may be specified in the order.
(2) A periodical payments order may be made instead of or in addition to any judgment for a lump sum by way of damages for the benefit of a dependant.
(3) The payments to be made under a periodical payments order shall be assessed according to the financial loss likely to be sustained by such dependant as a result of the death of the deceased during the period for which the order is made and different sums may he ordered to be paid in respect of different intervals during the period of the order.
(4) The Defendant and any dependant entitled to payments under a periodical payments order may at any time apply to the court for a variation of the order as to the amount of any future payments to he made thereunder or as to the intervals at which or the period during which such payments shall be made. No such application shall be made except on the ground that there has been a material change of circumstance which has resulted in the payments ordered to be made ceasing to be a fair assessment of the financial loss likely to he sustained by such dependant after the date of the application.
(5) Upon any application under the last preceding subsection the court, if satisfied that there has been such a material change of circumstance, may make such variation in the order as it thinks just.
(6) Where the court makes a periodical payments order in favour of a dependant who is a widow at the date of the order, the likelihood that she will re-marry during the period of the order shall not be taken into account in assessing the amount of any payments ordered to be made to her thereunder but her re-marriage after the date of the order may be relied upon as a material change of circumstance for the purposes of any application under subsection (4) of this section.
(7) Where the court gives judgment for a lump sum by way of damages for the benefit of a dependant who is a widow at the date of the judgment, the likelihood that she will re-marry thereafter shall not be taken into account in assessing such damages unless the full particular delivered pursuant to the provisions of section 4 of the Fatal Accidents Act 1846 contains an express statement that no application is made on her behalf for a periodic al payments order and that if the court thinks lit to give judgment for a lump sum by way of damages for her benefit she is willing

523
that the likelihood of her re-marrying after the date of the judgment should be taken into account in assessing such damages."
The noble and learned Lord said: When I intervened in the debate on Second Reading of this Bill I was ingenuous enough to think it was concerned with lawyers' law—in particular Clause 4 of it, which was dealing directly with what a judge has to do. It occurred to me that 15 years of practical experience in adjudicating in this kind of action made it proper that I should draw the attention of the House to difficulties and indeed injustices which may result from accepting Clause 4 of the Bill in the form in which it came from another place. The task of assessing damages in a lump sum for dependants, which is not of course limited to widows, under the Fatal Accidents Act, is one which is always fraught with anxiety to the judge. It is so difficult to be right; and to be wrong is bound to cause injustice.
It seemed to me that the defect of Clause 4 was that it focused exclusively upon one facet of a much wider problem, although my own experience leads me to believe that quantitatively prospects of a widow's remarriage play a significant part in a very small minority of cases, and that it has been greatly overestimated by some of the supporters of the Bill. The fact that it does not play quantitatively a large part in assessing damages in this type of litigation does not mean that I do not sympathise with the deep emotions which are stirred in those few cases in which it does arise, both by the prospect of questions being publicly addressed to the widow as to her intentions of remarriage, and as to what I am told, though I have never experienced, are the snooping inquiries which in some cases go on before the case is tried. Nor do I underestimate the emotion which has been stirred by such metaphors as "the cattle market" and "the slave market" which, though I think unjustifiably, have acquired a currency; and legislation must, I accept, take account of public opinion, even if public opinion may not be based on rational, as distinct from purely emotional, grounds.
I, too, would spare the widow the indignity of having to answer such questions in open court; and I like to think that in the many scores of cases which I tried I succeeded in doing so. I, too, would wish to relieve the judge of the anxious
524
task, where it arises, of making an estimate of the widow's prospects of remarriage. But I should wish to do so in the context of a wider reform, designed to reduce the risks of injustice for widows and for equally deserving dependants in a field which, quantitatively and qualitatively, in terms of human suffering is liable to result from the present system—injustice much greater than that involved in any question of the prospects of remarriage.
My objection to Clause 4 as it stands in the Bill as it came from another place is not that it ignores these other and larger problems. Reform, provided always that it is consistent in principle, may have to be piecemeal owing to the exigencies of Parliamentary procedure. I do not object to it on those grounds, but Clause 4, it seems to me, is subject to four objections: first, it is irreconcilable with the principle of the Fatal Accidents Act; secondly, it creates injustice as between young re-married widows and those in middle years with children whose needs are so much greater; thirdly, it makes more difficult the prospect of future rational life; fourthly,—and I put this last—it gives to the judge a task which is repellent to all his instincts for doing even justice between parties to litigation before him.
In the course of the speeches on Second Reading, it appeared to me that some of the Members of this House were not entirely familiar with the nature of the damages which are awarded under the Fatal Accidents Act. In England, there is no element in the damages of compensation for the grief of the dependant at the bereavement. For my part, I should find the task of estimating death in pounds and pence impossible and distasteful. If it had to be done, then there would be no reason for limiting it to those who were financially dependent upon the deceased, who are the only ones who can recover damages under the Fatal Accidents Act. The loss of an only child to parents must cause grief as great as any which one can imagine. No, damages under the Fatal Accidents Act depend upon a cold financial calculation of the loss of material benefits in cash or kind by those children, parents, widows, or other near relatives for whom the deceased provided, or would he likely to do so in the future had he lived.
It may perhaps help to explain the difficulties which I feel about Clause 4 as it stood before and why I am proposing the substitute clause which stands in my name, if I venture for a few minutes to try to explain the mental processes through which a judge has to go in making the estimate of damages under the Act. It involves three stages. First, he has to make an estimate of the financial benefits the deceased would have provided for the dependants who are seeking compensation if he had not been killed by the tortious act of the defendant.
The starting point, naturally, is an estimate of the financial benefits which those dependants were deriving from him during the period shortly before his death. Then one has to consider his expectation of working life; that is, the period during which he would have continued to provide material benefits for his wife, maybe his aged parents, or his children, or maybe a dependant sister. And one has to consider the prospects of promotion that he had, the likelihood that as he went up successively on the ladder of his employment he would be able to provide greater material benefits than at the time at which he died.
Next one has to consider on the other side of the coin the expectation of life of the parent, for example, who is claiming, or of the widow, if that is likely to be less than that of the expectation of the working life of the deceased. One has to consider in relation to children how long they would be likely to have been dependent and at what age they would have gone out into the world to earn a living for themselves. So far as the estimate is based on what was likely to have happened to the husband, it can never be shown to be wrong. All that one can attempt is to do one's best to make a fair estimate of what would be likely to have happened if he had not been killed and the Court of Appeal can correct and get a general balance in the decisions of individual judges on that matter. But in so far as that estimate depends upon a guess as to how long the parent will live or the widow will live, or how long the child would have been dependent, facts may show in the future that that was wrong. If they do, under the present system there is no way of correcting that error.
The next stage in the calculation is to take account on the debit side of those sources of material benefits which are available to the dependant as a result of the death of the deceased which would not have been available apart from that. The first example is legacies from the estate of the deceased or, if one comes to the c inclusion that those legacies would ultimately have been left had he lived longer, then an allowance for the accelerated receipt of them. As I said, this is a cold, financial calculation.
Again, one takes into account remarriage, or a strong likelihood of it. I emphasise the words a strong likelihood of it "because, as I said on the Second Reading of this Bill, it is only in a small minority of cases that this is a significant factor. Likewise, one would take into account the ability of a widow, in particular, to re-engage in salaried employment which she might have had before the marriage and which she left in order to carry on the duties, and the pleasures, of running the household. Those estimates, however reasonable they may appear at the time they are made, may be falsified by events, and if they are, there is no way under our present system of correcting the injustice that results from it.
Finally, the last stage in the calculation is to estimate the amount of a capital sum which would produce, over the years which one has estimated that the benefits would have been received, an annuity of the sum of the financial value of the material benefits in cash or kind which would have been obtained. The normal way of doing that in the ordinary case, where very large sums are not involved, is by applying a number of years' purchase to the median benefit which one has estimated. In picking on the number of years' purchase to grant one normally takes into account those various probabilities, and chances to which I have been referring.
There has, however, come into operation within the last year or so an important new factor which is liable to falsify that last stage in the calculation, and that is inflation. There is a very grave danger, if inflation goes on increasing, that a lump sum which is awarded this year, and which is fairly sufficient to provide the widow, the parent or the child with

527
the material benefits lost over the coming years by the death of the deceased, will in the event because of the fall in the value of money, prove to be wholly inadequate to do so.
Clause 4 as it stands at present cuts right across this principle. The widow of 20 with no children, already remarried at the date of the assessment of the damages, or engaged to be remarried, will get a sum which bears no relation whatever to her actual material loss; and, what is worse, although her actual loss is likely to be not one-twentieth of that of a widow in her forties with children, the amount she will get will be at least twice—perhaps three times—as much as the widow in her forties whose needs are so much greater. To deal, as Clause 4 does, with the prospects of remarriage does not tackle the real weakness of the present system, which is the fallibility of judges as prophets. Dependent parents may live much longer than the average expectation of life on which the judge has ruled. Children may go on with further education when at the time the estimate was made the probability was that they would leave school at 15 or at 16 and cease to be dependent on their parents. A woman who was earning good money at the date of the death of the deceased, a factor which would limit or reduce the material benefits which she was getting from her husband, may become ill, suffer an accident, cease to be able to earn it; and all the judge's calculations are falsified by the event and nothing can put it right. Injustice, too—I do not hesitate to mention this—may also be done to the defendant. The dependent parent may die the year after the assessment in his or her favour has been made. It may be odd of me, but as a judge I like to see justice done to both sides, even if one of them is a defendant and even if that defendant is represented by an insurance company.
I wish to turn now to the terms of the new clause which I am proposing. I was told that I should at the outset of my speech have suggested that it might be for the convenience of the Committee if we were to discuss at the same time the new clause, the Amendment standing in the name of my noble and learned friend Lord Pearson, and the Amendment in my name—to leave out Clause 4 because
528
they deal with the same topic—and, indeed, it would be difficult to discuss them separately. I turn therefore, with that suggestion, which I hope will commend itself to the House, to the new clause which sets out the principles of rational reform which I would commend to this House. I personally should have preferred the whole question of damages under the Fatal Accidents Acts to have been referred to the Law Commission for an urgent report, and for them at the same time to consider a closely related subject under another Statute: that is, damages for loss of expectation of life, for that would have enabled at any rate a more detailed and a more tidy enactment to be made. I have not sufficient experience to have antennae sensitive to the mood of the House, but I had a suspicion at the time of the debate of the Second Reading that it would not be wholly in accord with what I sensed to be the mood of the House if it were adjourned even for that length of time, which I hoped would be short, for a careful consideration and discussion of an amendment of the law on the lines set out in this new proposed clause. I therefore will in due course beg to move it.
If it is accepted, it will, I recognise, require tidying up Amendments which can be made at the Report stage, for what it seeks to do is to set out the principle in terms which I hope will be understandable by laymen as well as by lawyers. For instance, the position in Scotland, of which I have not sufficient personal detailed knowledge and which differs slightly from that in England, would require to be considered and dealt with. The question of joint liability in cases where another party is under a liability to contribute to the damages would also need to be dealt with. And it may be, indeed I think it is, that rights against insurers should be specifically provided for. But I believe that, subject to that minor tidying up, the courts could make this new clause work in the form in which it stands. I may perhaps add that it is certainly not shorter than the original Fatal Accidents Act of 1846. Draftsmen were more laconic in those days.
The key to the new clause is to be found in subsection (1), in the provision empowering the court to make orders for periodical payments in place of lump

529
sums for damages. It is not a provision which would have been practicable in 1846, when the original Act was passed, because of the risk that individual defendants might be financially unable to keep up the payments over the period, which might be lengthy, during which they would be paid. 13ut to-day all but a negligible number of claims under the Fatal Accidents Act are covered by insurance, either by motor vehicle insurance or by employers' liability insurance. I am anticipating the passing by your Lordships' House of the Motor Vehicles (Passenger Insurance) Bill, which comes before the House, I think, next week, and which will make the insurance of the passenger in the vehicle compulsory. The fatal accidents field is the best one in which to start a reform of this kind; it may be desirable for all cases of personal injuries, but in the fatal accidents field there is riot that objection, which I find a very formidable one where the plaintiff is still alive, of the danger of creating the permanent invalid syndrome because he knows that if he gets better, if the condition improves, the payments will be reduced. This is not malingering; it is one of the psychological effects of litigation, and this social damage to the man himself is one which one should bear in mind; but that does not exist in fatal accident cases. This system of periodical payments in cases of this kind is not entirely new in the English system. It is common in many of the civil law systems, and its practicability in this country is, I venture to say, proved by the fact that for over fifty years the insurance companies have lived with and made work a system of periodical payments under workmen's compensation.
Subsection (2) leaves it open to have a lump sum payment instead of a periodical payments order. Indeed in nearly all cases there will be a lump sum payment for special damages which have been incurred before the date of the trial, in addition to the damages for the future. But as regards the future, there may be cases when both parties would prefer a lump sum payment to a periodical payments order. I suspect that insurance companies will in most cases do so, and dependants may if, for example, they want a capital sum to buy a house or start a business or some
530
thing of that kind, although my own view is that in the majority of cases it would be in their own interest to have a periodical payments order. But the option is left open to each side.
Subsections (3) to (5) may be considered together because they deal with variation of the order. They are designed to enable the court to do justice in the light of the actual facts as they have happened and not merely upon a prophecy, which may be false, of how they are likely to happen. What I have in mind is not only remarriage, which would be a reason for applying for a variation of the order, but all those matters of uncertainty—life, expectation of life, injury, going on with higher education when it was not foreseen, and particularly inflation, to which I have referred. Insurers are in a much better position to hedge against inflation than are small investors, such as the dependants receiving compensation under the Fatal Accidents Act.
I turn finally to subsections (6) and (7), which were added (and I apologise for this) later than the first subsections in order to make explicit the position as regard!, re-marriage, which I think would have been implicit in the way that the courts would have worked out the operation of the first four subsections. Subsection (6) deals with the case where a periodical payment order is made. The prospects of remarriage there are irrelevant. No question as to prospects of remarriage; no inquiries as to prospects of remarriage can be admitted or can affect the order; only the actual fact of remarriage may be a material change of circumstance entitling a party to ask for a variation of the order.
May I say at once that this has the advantage that, if the widow marries a man of lesser income, or lesser financial standing than the husband who had died, then the fact that the material benefits that she will get from her new marriage are less, than she would have had had her previous husband continued to live can be taken into account in an amendment to the annual payment being made. I should expect, in practice, that insurers would ask for periodical payment orders where there was a strong likelihood that the widow would remarry. Wherever this is being granted, as I said, prospects of remarriage are irrelevant; no questions

531
on it in the proceedings, no inquiries about it before the proceedings can take place.
Subsection (7) deals with a lump sum payment. In the case where the claim is made for a lump sum payment instead of a periodical payments order, the remarriage prospects of the widow cannot be taken into consideration unless two conditions are fulfilled. The first—and it may be the most important for those who supported Clause (4) in its original form—is that the remarriage prospects cannot be taken into consideration unless the widow expressly consents. Secondly, she must disclaim any intention to apply for a periodical payments order instead; that is to say, she must choose. She must say: "I want to have a lump sum payment order, and I agree, in assessing it, to have my marriage prospects taken into account."
I should not expect this clause to be used at all in the case of the typical widow—at any rate, what I found to be the typical widow in the many cases that I tried, and that I have seen later in Appelate courts—in her late thirties or older. In that case I should expect the insurance company to apply for a lump sum payment since, in those cases, the prospect of remarriage plays an insignificant part, if any (indeed none, so far as I was concerned) in the assessment of the lump sum. Although I personally would advise the typical widow to ask for a periodical payment order rather than a lump sum, if she did want one I have little doubt that the insurers would consent to that form of order rather than a periodical payments order and, if that were done, then the prospects of her remarriage would be, in law irrelevant, as in fact they already are. If your Lordships approve of my suggestion that the three Amendments should be discussed together before a vote on them is taken, I shall in due course beg to move that this Amendment be accepted.
7.37 p.m.
LORD PEARSON: My noble and learned friend Lord Diplock has proposed that the three Amendments should be taken together, and if that course commends itself to the Committee, it is perhaps convenient that I should say a few words about the Amendment which
532
stands in my name and is intended as a shorter and simpler alternative, in a way, to the one which has already been proposed. Your Lordships will see that the Amendment proposed to Clause 4 is intended as a short and simple Amendment with three objects in view: two being positive objects, and one really a negative object. The first positive object is to eliminate the present Clause 4 of the Bill, which I regard as undesirable. I regard it as undesirable because it introduces a statutory fiction, and substitutes fiction for fact, in the judicial estimate of the amount of damage which the widow has sustained. I say that for this reason. As has been explained, under these Acts you estimate merely the financial loss which the widow, and possibly other dependants, have suffered by reason of the deceased husband's death. In other words, that which has to be assessed is the net loss of the husband's financial support to the widow.
In assessing the net loss from being deprived of that financial support, it seems to me elementary that a highly important factor is the period for which that loss will endure. In the ordinary way, if there is no remarriage, it may endure for a very long period—twenty, thirty, forty years or whatever it may be—but, under the provision in the Bill, even if an actual remarriage has occurred by the time when the assessment has to be made (and suppose that is a year and a half, or two years after the accident) in such a case it is obvious that the actual loss is comparatively small because the period during which the husband, or a huband's financial support has been lost, is only eighteen months, or two years, instead of thirty or forty years. Why should that fact be left out of account? Why should the unfortunate judge, who is trying to assess damages and wishing to assess them on a realistic basis to find what is the loss really suffered, have to disregard the facts and make his assessment on the fictitious basis that the widow has not remarried and is not going to do so?
That is why I object to the present provision in the Bill. It is fiction. It is not fact, and it is not fair or reasonable to require the judicial estimate to be made on the basis of falsehood instead of on the basis of reality. If the widow has in fact remarried by the time the assessment

533
is being made, surely it is right to look at the facts and see how much damage she has really suffered. Otherwise, when the actual damage suffered may be, say, £1,500, it will be necessary, under the provision in the Bill, to assess some very much larger sum—£9,000, £10,000, £12,000, or whatever it may be. That is not reasonable or fair; and in any case it is not justice. So I submit that that is wrong.
The second positive object of the Amendment is to put right what I think is one of the evils complained of, and the one which seems to me quite clear. The widow is entitled to fair treatment and it is not fair that a widow in the witness box should be asked, and compelled to answer, questions as to her intentions or expectations of remarriage. One can see at once that such questions may well be highly embarrassing and they ought to be barred. The Amendment which I am proposing would deal with that position. It would provide that in the sphere of procedure, the sphere of evidence, such questions shall not be asked and the defendant shall not adduce any evidence—if he can find any—with regard to the prospect of remarriage, unless the widow herself chooses to give evidence on it, which is I suppose highly unlikely.
The object of this Amendment is to avoid the possibility—I am not sure that it is much more than a bare responsibility—that such questions might be put to the widow in the witness box. It is a long time since I was trying cases in first instance, and I am not entirely au fait with what happens nowadays, but I do not think that when I was trying cases such questions were put to the witness. But, at any rate, if there is any possibility that they might be put, then that possibility ought to be barred and no such questions should be put.
The third object of this Amendment is to provide a short and simple remedy for the evil complained of, without introducing any elaborate or far-reaching alterations of the law which may be highly desirable—and I am not speaking against the proposals. It may be that the Committee will prefer to deal simply with this subject which arises to be dealt with, and to deal with it in the simple way suggested in the Amendment that I have ventured to put forward. From those points of view, I venture to commend this Amendment to the Committee.
7.44 p.m.
BARONESS SUMMERSKILL: I am sure that the Committee were charmed when the noble and learned Lord, Lord Diplock, confessed that his antennae were not tuned to the atmosphere of this House during the Second Reading. We fully realise that, and I, for one, realise that I put a point of view—which I am going to repeat to-day—which is totally opposed to the judicial approach. In the first place, I should have said that I agree wholeheartedly with the noble and learned Lord, Lord Diplock, in that compensation should be given as periodical payments rather than as a lump sum, because this method will afford a widow greater security.
I find it very difficult to visualise what the noble and learned Lord called a "typical widow". All women here looked at themselves and wondered whether we are typical women. If we are not typical women, then what is a typical widow? However, if he means that a woman of about 35 is a typical widow, I fully accept that. But let us think of this typical widow who has been married for some years with children living in a little suburban house, who has received her housekeeping money regularly; who perhaps has been responsible for paying the rent, the groceries, and so on, and who has geared her life to a period cal sum. Suddenly, a terrible thing happens and she is stricken. Her husband, who has earned the wages—and I emphasise that he has earned the wages, because I am going to point out soon that the woman serves equally in the home—is killed overnight. Time passes, and she is involved in legal proceedings. It is decided that this woman, who has been accustomed to periodical payments in her life and understands how to handle them, is to have a large lump sum.
I am sure that all of your Lordships read your papers regularly, and in various cases counsel for the defendant has been known to say that any woman with a substantial sum is bound to marry. Only to-day, I read that yesterday a judge warned a woman who had been awarded about £8,000 to beware of the "smooth-tongued predatory gentleman". That is the last thing I should call a man, but not all men are perfect and there are some men who do not merely assess a woman's size and shape or her loving mind, but give some thought to how much

535
money she possesses. But, suddenly, this typical widow is given a large sum of money, and that encourages many women to rush into another marriage because of loneliness, fear of the future and sexual deprivation. A woman needs only a little flattery—because a woman wants to he cared for, wants to be loved; and the woman we are talking about has been without the man who has cared for her and loved her for some time. So that she is vulnerable to the approach of what the judge called the "predatory gentleman". Therefore I feel that she may enter into a marriage which she will bitterly regret when her money has disappeared into the pockets of a spendthrift idler.
Some argue that by failing to take a lump sum she runs the risk of losing all, through the subsequent insolvency of the defendant; and the noble and learned Lord, Lord Diplock, has put that point of view very well. I believe that the noble Lord, Lord Stow Hill, feels rather strongly that periodical payments are wrong, because the defendant may become insolvent. May I repeat what the noble and learned Lord, Lord Diplock, said on Second Reading? He said:
"In the case of fatal accidents, where more than 99 per cent. of the cases arise out of traffic acidents, where there is compulsory insurance—and I hope there will be compulsory insurance for passengers soon—or out of industrial accidents where, in practice, everyone is insured, the original difficulties about making awards in the form of periodical payments … disappear."—[OFFICAIL REPORT, 20 /4 / 71, col. 543.]
I think it is very important that noble Lords should recognise the case for periodical payments.
Having said that about part of the Amendment, I must register my total opposition to the proposal that a widow's compensation shall be varied if there is a material change of circumstances, which includes remarriage. I have to confess that it is a matter of great disappointment to me that three eminent Law Lords have failed to adjust themselves to the 20th century concept of a woman's role—or, in this respect, I might say the 20th century concept of the housewife's role. I dealt with this point on Second Reading, when I asked that a wife should be treated financially as a working partner rather than as a kept
536
woman. The noble and learned Lord, Lord Diplock—and I listened to every word very carefully—appeared to regard the housewife as an appendage to a man who is prepared to subsidise her; and when that man dies and another man comes along with a subsidy, then the value placed on her working years, valued in terms of compensation placed on her working years with the first husband, must be reassessed, and the defendant may apply to the court for a variation of the order.
I was astonished when he turned to the House and, suggesting how generous they would be, said that if by chance the woman met a husband who was not as wealthy as the first they were not going to condemn her to this lower income; they were going to be extremely generous and allow her to keep an amount equivalent to compensation for the higher income. Does the noble Lord realise that noble Baronesses here were not impressed? That is not doing something generous: that is the least that can be done in the circumstances. It is not generous, of course, because the second income should not be taken into account at all. But he suggests that a widow, his typical widow, who has cooked, worked, brought up the children and looked after her husband in order that he might go out to work, is going to be treated generously because when the second husband comes she will be allowed to have an amount in terms of compensation still equivalent to the first.
It is surprising that the noble Lord and his noble friends who have put their names to this Amendment, with their knowledge and experience, cannot appreciate that the woman we are talking about has, as I have already said, worked for her family (and, by working for her family, she is working for the nation, because after all the workers are the true wealth of the nation) and, through this work, has earned the compensation which has been awarded. I say that this principle should be upheld whatever the age of the widow. The noble Lord said that he is fearful, or he implied that he was, of being thought over-generous to the young widow. He has already said that his typical widow is 35. That gives us the case. If his typical widow is 35, then the very young widows are in a tiny

537
minority. I would ask noble Lords, in the case of the very young widows, to put mercy before logic.
The noble Lord talked about the large sums of compensation which are often given. We are all familiar with the compensation given in the form of "golden handshakes" to men who are not logically entitled to them. But law and custom cannot always be consistent. Does the noble Lord immediately write a letter to The Times and say, "This is outrageous! This man has been given a colossal sum of money. He has worked for only a certain period; he is not entitled to it in legal terms"? We should be grateful, perhaps, that legal terms are not responsible for directing our lives. We cannot always be consistent, and in this matter I would ask noble Lords to have mercy on this very small number of young widows. I would ask noble Lords not again to use the widow of a worker fatally injured in an accident as the peg on which to hang a legalistic, out-moded argument like the one we have already heard from the noble Lord, Lord Diplock.
From subsection (7) it will be seen that it is proposed that in certain cases a lump sum by way of damages can be given and, provided the widow agrees,
"the likelihood of her re-marrying after the date of the judgment should be taken into account in assessing such damages".
This is a restatement of what has been described by the noble Lord, Lord Diplock, as "the cattle-market procedure". Here it is. There has been a great amount of discussion among noble Lords over the last few weeks. We saw the first Amendment down: a simple Amendment to delete that part of the Bill which dealt with this subject. Then, if I may say so, there was a great amount of public disquiet, and it was suggested that these noble Lords were not in touch with women; that they had little idea of what was going on—
SEVERAL NOBLE LORDS: Oh!
BARONESS SUMMERSKILL: The noble Lord understands what I mean. After all, when I am speaking of noble Lords I can only think along perhaps the severest lines. But they did not realise what the women's organisations were thinking. On this subject women's
538
organisations have for years sent representations to successive Governments, time and time again. This is not something new to women. I have been to conference after conference at which women have got up and denounced this method of dealing with "the typical widow". I say that subsection (7) is a restatement. Subsection (7) provides that if the widow agrees to this, and only if she agrees to it, will this practice be followed. It makes little difference to a nervous widow involved in legal proceedings whether she is asked to agree to inspection or whether inspection is made without her being asked. Here she is, having come up from her little home, among lawyers, with a lawyer telling her that it will be in her best interests if she allows herself to be inspected and somebody to sum up what her chances are in the marriage market. Of course she will be compelled to agree with her lawyer, and there is no question in this of her being free to decide.
Again, if there are noble Lords here who feel that this is a new subject, I would ask them to read the Report of the Committee on Personal Injuries Litigation. This Report was made in 1968 by the Committee under the chairmanship of Lord Justice Winn. It reported in 1968; it was appointed in 1966. This Committee sat for three years deciding what your Lordships are being asked to decide in this little debate, and perhaps one on Friday.
VISCOUNT DILHORNE: Does the noble Baroness say that the consideration of this question was within their terms of reference? I thought it was not; and I think the noble Baroness is wrong in saying that they spent three years considering this problem.
BARONESS SUMMERSKILL: My answer to that is: let me tell the noble and learned Viscount what Lord Justice Winn said.
VISCOUNT DILHORNE: I am aware of it.
BARONESS SUMMER SKILL: He said this, on the award of damages to a widow:
"We have had passed on to us from your Lordships' Office correspondence demonstrating that the representative bodies concerned with the welfare of women are gravely dissatisfied

539
with the present practice of forming a judgment as to whether there is a probability that the individual widow will remarry, and, if there appears to be such a possibility, of forecasting when this may happen. This topic has been raised in Parliament and in many Press articles. We are unanimous in expressing the definite view that the law should be so changed as to obviate the continuance of the present practice".
That was the Report of the Committee which considered this matter for some years. That was what Lord Justice Winn said. Therefore I ask the House to recognise that this subject has been threshed out for many years.
It has been said that men make the laws and women the manners. Perhaps only women can appreciate the indignity suffered by a widow who is compelled to submit to inspection by a strange man with a view to assessing her physical desirability. I would say this to noble Lords—I know them well enough to feel that they will take it in good part: a man's legal qualifications do not lessen her discomfort; for in this matter a judge and a manual labourer may have similar tastes. They may like women dark or fair, tall or short, buxom or slim. In the twenty minutes or so in which the judge looks at the woman he has to sum up whether she is likely to be desirable in the eyes of some other man. And during all this time the mind of the widow remains a closed book. She stands there mute, being assessed physically. Here in this new Amendment precisely the same practice is going to be pursued—provided, that is, that the widow does not rise up. I suppose, to make an impassioned speech against it. This woman knows that the male test of her desirability is concern, if I may quote the Home Secretary, with the "mechanics of sex" and not a loving disposition.
Finally, I say that it is lamentable that noble Lords by this Amendment should seek to perpetuate in our courts this crude assessment of the value of a woman, oblivious to the mental stress to which she is subjected. Again I should like to emphasise that the widow should be regarded as having been the working partner of her late husband for whom she has worked in the home, reared the children and has thus enabled him to earn his wage or salary and to improve his
540
skills. As I said on Second Reading, that was just one phase of her life, a phase which has had a tragic ending. Her financial compensation should bear no relationship to the next phase, whether she marries or remains single.
8.4 p.m.
LORD DENNING: My Lords, may I join with the noble Baroness in thinking that the law as it stands at present should be amended. As I have dealt with many of these cases at first instance and in the Court of Appeal, may I say that in the great majority of cases the prospects of remarriage are not taken into account in the least. The widow is not asked as to her prospects of marriage or the like, and the judge when he comes to assess them assesses them on so many years' purchase. which he feels is right, or the loss of money benefit which she has sustained. Likewise in the Court of Appeal, that is how the great majority of cases are decided. It is in this small minority—which equally I would deplore—that the widow is asked whether she has been going about with such-and-such a man or living with such-and-such a man and whether she is likely to remarry. Then, if the judge is satisfied that there is a strong likelihood of remarriage, he may reduce the amount on that account.
I would join forces with those who propose the Amendment in saying that that is most undesirable because of the evils to which it has given rise in the administration of justice. Before the trial the insurance companies may send their agents, or "snoopers" if you so like to call them, to see how the widow is living. At the trial the widow, I am afraid, will keep it all back from the judge; it may not have been inquired into. She will tell lies as to what her relationship was with such-and-such a man. That all may get through. Cases we have had in the Court of Appeal have arisen when the talebearers after the trial send word to the insurance company and say that she has deceived the court. I remember one case where it was said. "She has gone over to North Wales with her children and the man with whom she was living. She did not tell the court that". Only a few days ago there was an instance of a lady who had been living with another man and had a child by him. She had told the court that she had not done anything. The court did not know it then. She said

541
she lived an innocent life with no thought of remarriage. The case was settled, because the damages were reduced by agreement.
But it is those evils before the hearing, at the hearing and after the hearing which seem to me so undesirable. For that reason I would suggest that an amendment should be made in order that they may be got rid of. My noble and learned friend Lord Pearson makes a very good suggestion that the matter should not be gone into by either side but should be controlled by the judge. I think he might do so without having such questions asked, unless the woman has invited them. Therefore to that extent I would support the proposed Amendment. But I must say that the Bill will give rise to a great deal of difficulty as it stands. The court is not to take account of her actual remarriage or prospects of remarriage. Then what is the court to do? We are to imagine then, that she is not married and is not going to get married. If we have to do that by a fiction, we must imagine that she goes out to work. Take the case of the widowed secretary who has been remarried. If we are to imagine that she is not remarried, then we must imagine that she must go out to work to earn more money. Unless this Amendment is carefully considered the judges will have great difficulty in the future in knowing what is to happen if they are to ignore remarriage or the prospects of remarriage.
But, from that, may I say a word as to the Amendment proposed by my noble and learned friend Lord Diplock. For many years I have thought that it would be useful to reform our law in such a way that instead of judges being obliged to give lump sums they could give periodical payments. I have often thought that in the cases of paraplegics, paralysed from the waist down arid quadaplegics paralysed from the neck down. They may be given £20,000 or £30,000 damages. Also in the case of the unconscious, who may remain unconscious all their lives. Sometimes they die within a year or so of the award, then the money goes perhaps to those who do not need it or deserve it. I have often thought in those cases how much better it would be for periodical payments to be made. The insurance companies, I believe, object, and I can understand it; they want to
542
get rid of their liability, compounded once and for all. As to widows, would it not often be better, from the practical point of view, that they should have periodical payments, coming in regularly, as one has from the National Insurance for accidents and the like. Let them be substantial payments, made quickly after the award. As my noble and learned friend Lord Diplock says, let them cope with inflation.
I would add—it may be possible—let there be an immediate lump sum, if you like, and a departure from the absolute rule of pecuniary loss. Let there be compensation for the plight in which they have been put. Let £5,000 be paid in every case, followed by periodical payments to meet the needs. But in principle it is well worth the consideration of this Committee to allow something on the lines of the Amendment which the noble and learned Lord, Lord Diplock, has suggested would be a very valuable improvement in the law, always as an alternative and not compulsory. Subject to that, I am not quite sure which way I should vote on these Amendments.
8.10 p.m.
LORD STOW HILL: If I may at the outset try to get the record straight, I think my noble friend Lady Summerskill by accident attributed to me a passage from A. speech made by Lord Diplock. She certainly used my name.
VISCOUNT DILHORNE: But not in that connection, if I remember rightly.
LORD STOW HILL: Then I apologise. I would simply say one thing more about my noble friend's speech. I, of course, agree with a great deal of it, especially that part which was covered by the vivid and graphic description which graced the latter portion of it. What I disagree with is in her preference for periodic payments, and I would only say that I have a much higher opinion of the wisdom and common-sense of the opposite sex from myself than she has. I feel honoured and privileged in the acqaintanceship with ladies that I have enjoyed in my long life, and I confess that in this year of 1971, so far as my experience goes, they are every bit as intelligent and able to control themselves, to look after themselves and to shape their lives as their male counterparts. And the idea that a lady with £2,000, £3,000 or £4,000 at

543
her disposal is likely to fall an easy prey to what the noble Baroness described as a "predatory male"—whatever he may look like—seems to me as difficult to accept as that her male counterpart in possession of a similar sum in this year of grace 1971 is likely to fall a prey to a predatory female.
May I leave her speech with those comments, and go to the speeches of the three noble and learned Lords, to whom I would wish to express my personal gratitude for the obvious careful thought that they have given to the problem that confronts the Committee and for the labour and pains they have expended on trying to devise an answer to the difficulties which we have discussed, and which were so exhaustively discussed in another place. The first noble and learned Lord who spoke was Lord Diplock. May I address myself first to him. I hope that when the noble and learned Lord, Lord Denning, was describing what takes place in what I quite agree with him are a minority of cases, he was as profoundly repelled by the noble and learned Lord's description, as I believe anybody here would be on hearing it.
If I may say so to the noble and learned Lord, Lord Diplock, I do not believe that in his formulation of the problem and in his thinking out of the answer, he really gave adequate weight to the sense of detestation that the vast majority of people in this country feel at the idea that an unfortunate widow, whose husband has been killed, perhaps some years before or probably quite recently before the occasion arises when she has to go into the witness box, should be asked the sort of questions which the noble and learned Lord, Lord Denning, described from his very long and rich experience in these matters. I can only say, that the procedure as he described it, seemed to me quite detestable. I know that many judges find it so because learned judges have over and over again said in their judgments, and quite apart from their judgments, how much they dislike having to preside over inquiries of this sort and how anxious they are to be relieved of this difficult task.
I know, too, how out of their sense of delicacy, which we should all applaud,
544
they do the best they can while trying to do their duty, disagreeable as it may be, to see that the proceedings are conducted with a reasonable sense of the "suffering"—I use the word advisedly—of the widow in the witness box. In consequence they very often ask, if they ask any questions at all, only a minimum of those questions which they think to be utterly indispensable. But cases do arise where insurance companies—and I do not refer to them in any critical sense—again in the discharge of their duty put inquiry agents to shadow the unfortunate widow.
These matters of one's intentions towards the opposite sex, one's desires and plans as to how to lead one's life in the future are intensely personal. Unless it is absolutely essential, in a civilised country people should not have to be subjected to the ordeal of being cross-examined as to their views and intentions in an extremely private terrain of personal feelings and reactions of that sort. And that is exactly what is done now, as the noble and learned Lord, from the wealth of his experience, described it.
The noble and learned Lord, Lord Diplock, agreed that it was a very undesirable practice. I simply say this: he is most anxious, as all learned judges are—and I yield to none in my very deep and fervent respect for the Bench in this country—to do justice as between widow and widow. I would only say to him that if so few questions are asked, as the law stands—the law which we who have promoted this Bill are most anxious to alter—injustice is constantly done between one widow and another and between one defendant and another, when the matter is treated with that delicacy, which we all so highly applaud.
Take two widows. Let us assume that they are of the same age and approximately of the same attraction, each married to a late husband of about the same age and with approximately the same income and with similar prospects. They are similar in all respects when they appear in the witness box, and if a learned judge, acting from motives, as I say, of courtesy and humanity, deducts what he thinks is necessary, on a very ad hoc basis—in" I may so describe it—in each case he would probably deduct the same. Those two widows may be

545
utterly different in temperament and in their reactions to the tragedy through which they have passed. One may be a lady who is perhaps of a buoyant and optimistic temperament. She may think—and quite rightly think—that her late husband would have wished her to pick up the bits and try to make a new life and, if in due course a suitable person came along, to remarry. That might have been the case for one of the two widows.
The other widow—and I do not criticise one as against the other at all—may be of a wholly different temperament. She may be devoted to the memory of her late husband and the idea of her ever, in the whole of her natural life, taking anyone to replace him, may be to her utter anathema. She may feel deeply and sincerely that the very idea of entering into another matrimonial relationship would be something which she genuinely could never contemplate.
If the matter is dealt with as it is in the courts to-day, those two widows are dealt with on precisely the same basis. One gets much too much and the other too little, and one defendant pays too much and the other defendant pays too little. One advantage, at any rate, if may put it to the noble and learned Lord, Lord Diplock, is that I respectfully submit that the change in the law which I propose would put an end to that fundamental injustice. That, I should have thought would be something of considerable value.
The noble and learned Lord, Lord Pearson, proposed a different remedy. His particular concern was the question of remarriage. May I say a word on that? In the other place the possible alternatives were exhaustively discussed. It was accepted that perhaps there was some illogicality, if you excluded from consideration prospects, also of excluding actual remarriage. That particularly concerned the noble and learned Lord. I do not want to take time over it, but I wish to put this to the Committee. It is much more logical than taking it into account, because what the Act of 1846 required—this has been said by learned judge after learned judge and I could cite a wealth of authorities—was that you take into account, by way of loss. the loss of the support which the husband
546
would have provided for the wife in pounds, shillings and pence had he lived and you deduct from that only direct financial advantages which accrue to the widow as the result of the death.
Applying that principle, you do not take into account, for example, when the relatives provide for her or any other benefit in a broad financial sense which may be available. Suppose a workman is killed and his mates rally round to provide money to help the widow. That is not taken into account because it is not caused by the death. Nor is remarriage caused by the death. The noble and learned Lord, Lord Denning, in a judgment which I have had the pleasure of reading, pointed out, in a case in which a widow had worked, that her earnings should not be taken into account because they were due to her own volition, her own choice, and not the result of the death. So it is not logical at all not to take remarriage into account.
May I address myself to the Amendments particularly, because I submit that the Amendments both of the noble and learned Lord, Lord Diplock, and also the noble and learned Lord, Lord Pearson, really will not stand up. What is proposed by the Amendment of the noble and learned Lord, Lord Diplock? There are to be periodic payments either in substitution for or in addition to a lump sum. The Amendment goes on to pose that there can be application made to vary the amount of the periodical payment. It reads:
"No such application shall be made except on the ground that there has been a material change of circumstance which has resulted in the payments ordered to be made ceasing to be a fair assessment of the financial loss likely to be sustained by such dependant after the date of the application."
It goes on:
"Upon any application under the last preceding subsection the court, if satisfied that there has, been such a material change of circumstance, may make such variation in the order as it thinks just."
In my submission the plain effect of that wording is this. As from the date of the death of the husband, and the hearing of the case in which she claims damages in respect of that death, the widow is in leading strings for the rest of her life. The person who holds the strings is the private insurance company. I do not decry insurance companies or criticise

547
them in the least. They must do their duty. In past years it has been my privilege and good fortune to work closely with the claims departments of most of our great insurance companies and I know those departments to be staffed by humane and decent people who I am sure dislike their task just as much as do the judges. I do not criticise them, it would not lie in my mouth to do so, even if I desired to do so, which I do not.
The Amendment would have the effect that when the unfortunate widow goes out of court with her periodic payment she will be watched—because insurance companies will develop a system; they are bound to—for years and years to see whether there is any evidence that a "material change" has taken place. Suppose she lived in a small house and moved to a penthouse flat in Park Lane. That would put the sleuths on inquiry at once; they would be very negligent if they did not notice it. But that might be because she had remarried; it might happen because she had been fortunate enough to engage the interest of a wealthy admirer; it might be because she had won a sweepstake. There might be a million different reasons. But the sleuths are going to be after her; they are going to watch her and report to their principals. They will say, "Here is this lady whose standard of living has risen right up to the sky". If they found that a wealthy admirer had removed her from a cottage to Park Lane, she would be dragged back to court, and exactly the same questions would be put to her as were described by the noble and learned Lord, Lord Denning. She would have her periodic payments reduced. Can anything more repulsive be imagined?
I submit to the noble and learned Lord, Lord Diplock, that he has failed to take into account the intensity of feeling about this; and he has also failed to take into account this consideration: that if there is one thing in this great country of ours, this free democratic society, that we value as much as if not more than anything else, it is our personal liberty to move about on our lawful occasions and to do what we want without being "snooped" on. Any proposal which would have the result of an insurance company paying more or less as the result of persistent "snooping" on an unfortunate widow whose husband has been
548
killed would, I should have thought, be utterly detestable, and I very much hope that the Committee will not accept it.
I have another five minutes, and I want to refer to the Amendment in the name of the noble and learned Lord, Lord Pearson. He has taken a great deal of trouble about this but is it going to work any better? It starts off by saying that:
"the court may take into account in assessing the damages the fact of remarriage or the possibility of remarriage…"
That is an exordium which does not greatly commend this Amendment, certainly not to myself. Then the Amendment goes on:
"but the defendant shall not be allowed to adduce evidence or cross-examine the plaintiff or any of her witnesses as to the prospect of re-marriage unless the plaintiff has adduced evidence on that subject."
What in the wide world is "adducing evidence" on that subject? Suppose she puts on an old dress; is that giving evidence? I notice that the noble and learned Lord shakes his head. But why not? The lady is usually resplendent in the most up-to-date and admirable garments; but she goes into the witness box dressed in a most uninteresting and drab costume which she has raked out from the back of her wardrobe, one which she wore some thirty years—well, say some five years—before, and which she then found excited far too little interest and had far too little appeal. But she brings it out and wears it.
Her hair is usually beautifully done; but, by accident or design, on the occasion when she goes into the witness box it is not so beautifully done. Unkindly, Nature may have intervened by giving her a terrible cold in the head and she may have to dab her nose with her handkerchief and her countenance may be a little bit puffed. She may have slept badly and be rather pale that morning. Her countenance may not be suffused with that roseate hue which usually strikes delight in the onlooker. If she goes into the witness box, is she giving evidence as to her prospects? Why not? The Amendment does not talk about oral evidence, and even if it did it would not cure the situation. It is evidence. You go into the witness box and you present yourself. The learned judge looks at you. Are you not giving

549
evidence? If that is the case, is counsel to be able to ask her, "Your nose looks a little bit puffed and red this morning. Have you got a cold or have you done it on purpose?". It is an ingenious and painstaking endeavour, but it will not work.
I believe that the Committee is to resume discussion of another matter, not more important than this, and therefore I must draw my observations to a close. I deeply hope that the Committee will come to the conclusion that the remedies suggested by the noble and learned Lords whose contributions so enrich our discussions and have done so this evening, really do not meet the anxieties of those who have ventured to put this Bill before the Committee.
THE LORD CHANCELLOR: I wonder whether the Committee would bear with me? When I was consulted about this Bill I had hoped that this debate would confine itself to an hour and a half; but I have ascertained that there are at least three noble Lords who wish to speak, other than the noble Lord, Lord Davies of Leek, and in those circumstances I wonder whether, as we have reached 8.30 p.m., I might now move that the House do now resume.
Moved, That the House do now resume.—(The Lord Chancellor.)
On Question, Motion agreed to, and House resumed accordingly.

INDUSTRIAL RELATIONS BILL
8.30 p.m.
Committee stage resumed.
LORD DELACOURT-SMITH LORD DELACOURT-SMITH moved Amendment No. 55:
Page 5, line 39, at end insert ("except where such a provision forms part of an agreement which was in existence before the commencement of this Act.")
The noble Lord said: I think the words set down in the Marshalled List make very clear the purpose of this Amendment. The clause is described as related to pre-entry closed shop agreements, and the purpose of the clause is said to be to declare them void. But it appears to me that if one examines this clause, particularly subsection (1)(b) one finds that it goes a good deal wider than what I,
550
at any rate, have hitherto regarded as a pre-entry closed shop. Subsection (1)(a), of course, addresses itself to the pre-entry closed shop in the more generally understood meaning of that term. Without anybody being able to be quite precise, there are probably something like three-quarters of a million workers in the country who are covered by pre-entry closed shop arrangements that actually exist at the moment.
I want to make a general reference to some of the types of workers covered by such arrangements. Arrangements of this sort of course have commended themselves particularly in areas of employment where there is a great tendency for overcrowding of the occupation to take place. One clear example of this is the theatrical profession; and various members of the Committee, including my noble friend Lady White, have already referred to that position. It is a very striking characteristic of the theatrical profession that it is virtually impossible to define a qualification for entering it. One cannot refer exactly to a trade qualification, and one cannot refer to a professional qualification, as in the case of barristers or lawyers; and in essence the method of entering the theatrical profession is to secure an offer of a professional engagement from an employer.
In the light of this, and of the very considerable numbers of people who seek to enter a profession which is, as the noble Baroness said, already a desperately overcrowded one, the trade unions concerned—in full agreement, as I understand it, with the employers, or at any rate with all the responsible employers, who constitute the very considerable majority —have established a system of casting agreements. This I believe both sides of the industry, and those members of the public who have had occasion to examine this situation objectively, regard as being in the interests of the standard of performances as well as in the interest of creating a degree of security for the serious professional performer. There is still great anxiety—this is certainly our information—that the terms of this clause will destroy the major casting agreements, and the trade unions concerned have examined carefully and constructively suggestions made about other means by which the purposes of the casting agreements could be achieved, and

551
have reached the conclusion that although some of these appear attractive on paper they would inevitably break down in practice. That is one example, one industry.
Another example is the merchant service. Here again we have an occupation with many very special problems. In many ways it does not demand a particular objective standard of qualification. Recruitment to the merchant service could in theory take place in almost any part of the world where our ships touched, and it is very understandable, that, again in the interests of maintaining proper standards of staff, as well as some reasonable degree of security and some protection for conditions of employment, the principle of the pre-entry closed shop has for a considerable time been accepted.
One could look at many other industries where these problems or characteristics are present in greater or less degree, and where, as a consequence, the employer is threatened with the possibility of a shifting and unsatisfactory labour force, and those who engage in the occupation are threatened with insecurity, cut-throat competition for jobs, and an inevitable tendency for their standards to be driven down. I cannot understand how anyone who thinks about these occupations, of which I have taken but two examples, can really imagine that any good purpose will be served by this doctrinaire application of the concept of forbidding the pre-entry closed shop. The Donovan Commission devoted a great deal of time to the study of the closed shop, and a very realistic and critical analysis they made of it. They certainly did not regard existing arrangements as perfect, but I do not detect in their recommendations any proposal to apply this principle in the abstract and quite unrealistic way which the clause proposes.
But the clause goes further still, and I would direct the attention of the Committee to subsection (1)(b), and would invite the noble Lord to comment a little more upon that subsection, for this addresses itself not to trade union membership as I understand it, but to an agreement which purports
"to preclude an employer … from engaging workers who have not been recommended or approved for engagement by a trade union
552
or other organisation of workers specified in the agreement".
This is very much a variant, if I may say so, of what is normally understood to be the closed shop. It may well be that informal or formal arrangements of this sort do apply. If they do, I should be glad if members of the Government would say what harm they see in them. What is the objection to this form of arrangement? Indeed, what is the objection in principle to either of the arrangements set out in subsections (1)(a) or (1)(b)? Is it really the view of the Government that the arrangements for recruitment to an occupation should be the prerogative of the employer, and the employer only?
I have been addressing a number of questions to the Government on successive clauses, trying to elicit how they approach these things, not only in a static sense but in a sense of how they want to see things develop. I really should like to learn. I think that it is the Government's stand in principle that recruitment to an occupation should be in the hands of the employers only. If that is not their view, what measure of control over recruitment do they think those who are employed in the industry are likely to seek, since entry into it, if completely unregulated in the case of some of the occupations I have described, can constitute a most obvious threat to the maintenance of reasonable conditions.
I feel that this clause is open to many objections. Again we are always prepared to try to find ways of mitigating the worst consequences of the Government's doctrinaire policies, and it would be at least some alleviation of the situation, but by no means a complete one, if the Government would accept that where these arrangements already exist they should continue. If they reject this, I should be glad if they would say why they regard as unsuitable arrangements which employers have consented to, with an eye presumably to their own long-term interests and to the health of the industry, and what are the reasons which have led the Government to imagine that the employers in these industries where they have concluded pre-entry closed shop agreements in agreement with the trade unions and which have worked well are so irresponsible and so careless of the future of their industry and of the public interest. If there are criticisms, let the

553
Government make them. I think that it will frequently be found that any criticisms which can be made do not arise from the existence of the pre-entry closed shops but from other factors affecting the industry.
LORD BYERS: The noble Lord spoke of arrangements which have worked well. What we are worried about are the closed shop arrangements which have worked badly. Through the closed shop there has been victimisation. What is the protection there?
LORD DELACOIJRTSMITH: That is rather a different question. Here the Government are not addressing themselves to a difficulty which may arise from the closed shop. They are claiming as a matter of principle that a particular form of closed shop should be declared void. I am asking the Government what their justification is for taking this stand on general principles. At a later stage we can discuss the advantages and disadvantages, shortcomings and strengths, of the closed shop as a general principle, but I think that responsibility rests on the Government to justify departing from arrangements which have been arrived at in a number of instances, consented to fully by the employers, and to demonstrate why, as a general proposition, these arrangements should be declared void. I beg to move.
8.43 p.m.
EARL FERRERS: The noble Lord has moved this Amendment, if I may say so, in the cairn and reasoned terms in which he has moved many of his Amendments, and for this I am extremely grateful. I hope that he will not think that in saying this I am being in any way patronising, because that would be the last thing I should wish. I know that this is a point about which noble Lords opposite feel strongly and I am grateful to him that he should have moved it in the way he did. He invited the Government to say why they disagree with the pre-entry closed shop and I shall do my best to explain this to him.
As we see it, basically a person has, or should have, the right to be able to go and apply for a job of work where he wishes. If the noble Lord's Amendment were accepted, it would mean that where at the moment there is a pre-entry closed shop, a worker would be obliged to become a member of a trade union in ad-
554
vance of applying for work at that particular place. This would remove from him one of the basic rights in Clause 5 which we believe to be essential—the right to become or not to become a member of a trade union. He may be a fully qualified person, a person fully skilled to undertake the job which the particular factory has, but before he is able to apply for work he has to show that he is in possession of the appropriate union card. We know that strong arguments are put forward by noble Lords opposite about the closed shop, that it strengthens the unions and that solidarity of the unions depends on the large measure of support within the place of work. We accept these arguments, though we may not agree with them. But what we do not feel is correct is that before a person applies for a job he should necessarily have to show that he is in possession of an appropriate union card.
If this Amendment were accepted, it would have one effect; this would be to encourage unions to act now in advance of the Bill's becoming law and bring pressure on various employers to accept a pre-entry closed shop, because when the Bill becomes law they would not then have this facility. By so doing, they would in fact be denying a number of people—quite a large number of people—the right not to become members of a union should they so choose. The Bill as it stands gives a worker who is suitably qualified the right to apply for any job where his skills are adequate. We believe that to deny a person employment fix which he is suitably qualified simply because he is not in possession of a union card, or alternatively to enable an employer to terminate his employment because his union membership was terminated or was not accepted in the first place, is not a fair and just thing to do.
There would be many examples of a person being fully qualified and an employer entirely satisfied with his skills being refused employment, were this Amend dent to be incorporated in the Bill. We have tried to make provision for exceptional cases where there are strong arguments for a closed shop. The noble Lord referred to Equity. As we said earlier, there are provisions under Clause 16 to enable unions and managements where there are these particular problems to apply for approval of closed shop agreements. The noble Lord said

555
the casting agreements would be destroyed. I do not know that that is entirely the case, but the Secretary of State is in fact in negotiation with Equity and the representatives of theatre management in order to see whether there are specific problems which are not covered at the moment under this Bill.
The noble Lord said that the Donovan Commission said nothing about pre-entry closed shops. They said a good deal about the closed shop, and in paragraph 602 the Donovan Report said that although there were merits in the closed shop it should be possible to devise alternative means of overcoming the disadvantages which accompany it. It is those disadvantages that we have tried to overcome in the agency shop provisions, and we believe that it is basically fair and just that a person should be able to apply for employment at the place of his choice without first having to show that he holds the appropriate union card. That does not mean that the unions cannot enter agreements with management about the level of skills necessary or requisite for particular occupations, because of course they can negotiate with management to determine what levels of skills are necessary before entry into those occupations should take place. But that is not the same as saying that they should show in advance that they have the appropriate union card. For that reason, I hope your Lordships will not accept the Amendment.
8.50 p.m.
LORD BROWN: There are periods in this debate when one somehow gets the feeling that we are not talking about a real industry but about some fantasy in industry. The noble Earl on the opposite Bench has just made the point several times that if a man had to be a member of a particular union before he had any chance of obtaining occupation with a firm, then he would be denied the right to work in that occupation. That is not so. There are thousands of firms in the country which have not got closed shops or, for all I know, will not have agency agreements. The closed shop is probably the exception. All a man has to do is to go and apply for work in some concern—small, or many of them large—where there is not a closed shop. That is happening all the time now. People are
556
applying who have never been in a particular union in their lives before and are probably totally unskilled in the occupation. I used to run a company in Kilmarnock which to-day employs 3,000 people; only one was a member of the engineering union, and all except a very small percentage are employed there. These things are happening all over the country, and the noble Lord talks as if these things simply do not exist.
Turning to the Amendment, I am going to talk on the assumption that the Government are going to reject it. It is a pity that we have to talk in that way. The fact is that there are many closed shop agreements which are invaluable and were brought about voluntarily by management and unions. On the other hand, in acknowledging the comment made by the noble Lord, Lord Byers, I would say that it is quite true that there are a number of closed shop agreements which have been rammed down the throats of management by the power of unions and which have worked very badly. There is no sense in denying that that is the experience in industry.
LORD BYERS: If the noble Lord will permit me to say so, my comment was that it was not against management, but against workers. We have always stood up against the victimisation of the workers.
LORD BROWN: I am not going to question whether it is against management or against workers; the fact is that there are some which are bad from either point of view. Is it not possible for the Government to consider introducing an Amendment into the Bill which would make it possible for the existing pre-entry closed shop agreements or post-entry closed shop agreements to continue to exist, subject to an examination by the C.I.R. or something like that, so that existing good arrangements could continue, without all the disruption brought about by having to root out the bad ones? I suggest that that sort of practical approach to the continuance of what is good is the sensible way to go about it. I am sure it would please the Confederation of British Industry; it would certainly please the unions and it would help. If they are good ones and the C.I.R. says that they are good, let them continue. What is there against doing that?
LORD COOPER OF STOCKTON HEATH: May I support the proposition put by my colleague, Lord Brown. I agree that wherever there is absolute power there ought to be a proper check to protect the individual, and I hope that that will be considered. That does not militate against the very important proposition contained in this Amendment. First I should like to deal with the realities. In my experience, I do not think there have been many strikes to enforce the closed shop. Again, the closed shop is not the typical situation in British industry; where it exists it is often because there has been a good relationship between trade unions and employers and the employers themselves are quite happy to enter into the arrangement. They are the ones who complain about having to deal with a number of unions, and the closed shop contributes to a reduction in the number of unions, which suits the employers very well indeed. When it was said that if any concession were made on this matter it would result in pressure being brought to bear on the employers forthwith, before the Act came into force, may I say that, I doubt it very much, because the closed shop is an evolutionary process and not something that suddenly happens.
However, I think that there are more important points and not ones of a partisan nature. The description of this clause in the Bill is "Pre-entry closed shop agreements to be void". I do not know whether I am right, but it seems to me that this is retrospective legislation and this proposition is going to destroy agreements with employers, some of which may he eight or ten years old. That is something about which the Government ought to think very carefully indeed. Again, I know that some noble Lords are familiar with what happens in industry and some are not. Very often when we make ordinary trade union or industrial agreements, if certain things exist we try to carry them on by what we call a "better conditions" clause. Where a closed shop has been agreed and is in operation, if there is to be a change and it is going to be replaced by an agency shop, it is, as I said before, one of the slimmest distinctions that anyone could attempt to draw and the case for leaving the closed shop in existence is very strong. Certainly, if one says that this Bill is
558
really to help the trade unions, one should watch that very carefully indeed. I cannot understand that contention if closed shop agreements are going to be made void, because where they exist—there is only a limited number but those agreements are important—they have been brought about by legislation. Such a situation was created, for instance, in the coal industry. I think that that is a closed shop, and understandably so.
May I just indicate how a voluntary system works in relation to a closed shop? When the coal industry became nationalised my own union had 2,000 or 3,000 surface workers in the Yorkshire area, but we stopped acting for those workers because it made sense to allow one union to operate so far as the coal industry was concerned. We still have members, and my union pays virtually a fee to the miners' union annually to service those members. They are still notionally members of ours but we have had nothing to do with them since the incept on of nationalisation.
If the closed shop agreements are not continued as they exist at the moment and a new situation is begun, I submit that that is going to start an erosion of trade union organisation. It is putting an entirely new entrant into the industry. Picture an organisation where there is a 100 per cent. closed shop, with every man Jack in the union—and this, as I say, suits the employers fine. By retrospective legislation you are going to put an end to that, and any new entrant can be a member of a trade union, or, if he so wishes, he need not be. So, without getting emotional about this, I say that there is a good case for reasonable and equitable treatment here in considering this Amendment: that where the closed shop exists and is operated, it should be allowed to continue.
I want to make one final point. I agree with those who say that where abuse is possible the situation ought not to be allowed to continue. But it is not without significance that when examples of abuse are quoted in this Committee they are cases that have been taken to court and awards have been given to the individuals concerned. I make this point because the law is not so stupid as some people would have us believe. It is pretty sound now. If natural justice

559
is offended, a man has a great deal of protection. I should be happy, of course, if he had more protection. But I hope that thought will be given to this proposition: that where trade unions and employers have mutually agreed that in their particular situation a closed shop is a sensible thing, retrospective legislation should not interfere with some of the good arrangements that have gone on for so long.
VISCOUNT AMORY: A combination of the noble Lord, Lord Brown, and the noble Lord, Lord Cooper, can be a dangerously persuasive one. I only want to take up the noble Lord, Lord Cooper, on one point. I cannot think that the noble Lord really believes that this proposal amounts to retrospective legislation.
LORD COOPER OF STOCKTON HEATH: If I may try to answer that, may I say that as a practitioner, I am sure that if the closed ship is made void, in every instance where my own union has a closed shop we shall have to start re-negotiating the agency shop. That is the alternative that is presented to us in the Bill. The amazing thing here is that all the evils that are quoted about the closed shop can become the evils in the agency shop, after a worker has been employed for about three weeks and if he still refuses to join a trade union.
VISCOUNT AMORY: That is rather a different point. I was on the somewhat limited point that this amounts to retrospective legislation.
LORD SAINSBURY: I do not want to detain the Committee for long, but I should like to make one general comment. It strikes me that the longer we go on discussing this Bill, the more unreal it becomes in relation to the industrial life of this country and the more we deal in unreal generalities. Of course there are abuses of the closed shop. But there are hundreds of closed shop agreements that have been entered into, not under pressure from the trade unions but because the management believed that the closed shop led to harmony in the workplace. If that is not a good principle of industrial relations, I know nothing (perhaps I do not) about the subject that we have been discussing for so many hours.
LORD BEAUMONT OF WHITLEY: We have had a good debate on this Amendment. I want to touch on one point that I do not think has been sufficiently brought out, and then to move to another more technical point. First, I do not think that noble Lords on the Opposition Benches have quite taken in a major point of the Government's case. That is not surprising, because the Government have kept this point of their case rather under the table. A major point of the Government's case is that if you ought to be on your guard against the power of the unions, you ought to be trebly on your guard when management and unions agree. That is really the answer to the noble Lord, Lord Sainsbury. This is the moment when the Government should step in to argue for the rights of individual workers. I think there is a lot in that point, and I feel that the Government might profitably state it publicly rather than, as they appear to have done, keep it quiet.
I hope that we are going to have a full reply to this debate, but I want to bring the noble Earl back to the question that I asked him just before we adjourned and which presumably he has now had time to think about. In his last speech the noble Earl brought out the Government's objection to the pre-entry closed shop. I am still puzzled by the wording of the clause. If the noble Earl and other noble Lords who were here when I spoke will forgive me for repeating myself—some noble Lords were not present—as I said, Clause 6 comes under the rubric:
"Pre-entry closed shop agreements to be void."
There are two subsections to the clause. The first is the businesslike one, and the second states only exceptions. Subsection (2) says that the main subsection does not apply under Clause 16. I still maintain that this can only mean that the closed shop agreements within the meaning of Clause 16 are pre-entry closed shop agreements. If that is not true, either the rubric on the side is incorrect, or what the Government are saying is incorrect. May we have an answer to-day?
EARL FERRERS: I shall certainly do my best to answer the noble Lord, Lord Beaumont, while his point is fresh in my mind. There is a perfectly sound answer to this question, and it probably lies in the fact that the noble Lord

561
may be something of a purist. It is true that the rubric in the margin refers to the pre-entry closed shop agreements to be void, and merely in order to help the reader the clause goes on to say in subsection (2) that subsection (1) shall not apply to anything in Clause 16, lest the person who reads this should believe that this subsection did bite on Clause 16. It does not mean to infer that Clause 16 represents a pre-entry closed shop.
LORD BEAUMONT OF WHITLEY: I am grateful to the noble Earl. What he is saying is that subsection (2) is purely helpful and does not of itself add anything to the Bill. It is not necessary.
EARL FERRERS: I did not say it was not necessary; I said it was in in order to be helpful. The interpretation that the noble Lord put upon it, that Clause 16 did incorporate a pre-entry closed shop was not correct. This is put here in order to be helpful.
There were one or two points to which noble Lords referred. One of them came I think from the noble Lord, Lord Sainsbury, and I think the noble Lord, Lord Brown, also, that where good management exists, and where the agreement between the management and the unions is to have a closed shop, this in itself should be conducive to good management. I do not believe that this is so. The noble Lord, Lord Beaumont of Whitley, said that where unions and managements together agree to the existence of a closed shop that may very well be to suit their own convenience.
LORD BROWN: I think that inadvertently the noble Earl is rather misquoting me. I drew attention to the fact that there were good closed shop agreements and bad ones. May I say to the noble Lord, Lord Beaumont of Whitley, that where management and unions do not agree the liberty of the individual is likely to be much more severely affected than when management and unions do agree.
EARL FERRERS: That is possibly something t hat could encourage a debate in itself. All I would say is that, in the whole of this Bill, we have the great problem—how to draw the balance fairly and equitably between, on the one hand, the rights of individuals as individuals,
562
and on the other the rights of unions and collective bodies corporately; and how to strike the right balance between the right a an individual to do as he wishes, and on the other hand his responsibility to society and to his fellow workers and the bodies of people with whom he lives and moves. It is this that has permeated the whole of this Bill, to try and get a fair balance.
Several noble Lords have said that the closed shop is justifiable. This is a view which many people hold, but the pre-entry closed shop is only one facet of the closed shop, and it is the pre-entry closed shop that we feel is not in itself justified. It means that, where this exists, before getting any employment a person has to apply to a union for membership, and risk the possibility of being rejected. This we do not feel to be the best balance between the worker on the one side and his responsibility to the union on the other.
LORD BROWN: Could the noble Earl comment on the idea I put forward, that the Government might consider allowing pre-entry closed shops to continue subject to an examination by the C.I.R.
EARL FERRERS: That still means that before a person can get a job he first has to be accepted as a member of a union. The noble Lord says no, but it is possible for a person to go to a union and say, "Will you accept me as a member of your union?", and if the union says "No" he is unable to get a job.
LORD McCORQUODALE OF NEWTON: I have been for 40 years closely associated with the printing trade, which is very often held up as one of the most flagrant of closed shops for rigidity. I have also been chairman of the British Employers' Confederation, and the first industrial training council where two important industries refused to help other industries in 1960 to find work for young people because of the operation of that closed shop. Lord Hill was one of them; my own industry was the other. I do not recognise, in forty years in industry anything in the closed shop world similar to what the noble Lord, Lord Brown, and the noble Lord, Lord Sainsbury, suggested to-day. I am strongly in favour

563
of the Government proposals in this matter.
LORD STONHAM: The noble Lord, Lord McCorquodale of Newton, may not recognise the closed shop in anything that my noble friend Lord Brown said, but we have to consider the realities, as my noble friend Lord Sainsbury said. There are closed shop agreements between employers and trade unions which are not sinister and have no wrong intent. In my own firm we have operated one for 35 years, and it is quite informal; there is no written agreement, it is understood and it works. We like all the workpeople to be in a union because it is very much more simple. It is a better way of going on. We deal with one man instead of with a lot of individuals. This is something which helps employers, but this Amendment is dealing with those pre-entry closed shop agreements which are formal.
I cannot understand why the Government fail to see the importance of continuing and preserving those agreements which are supported wholly by the employers and which unquestionably are for the benefit of particular industries. The noble Viscount, Lord Amory, could not understand why my noble friend should have called this "retrospective legislation". If this Bill interferes with arrangements in my own firm, which have been going on for 35 years, I shall most certainly call it "retrospective legislation", and it will be.
VISCOUNT AMORY: I do not know whether I am allowed to make the same interruption a second time, but I must take issue with the noble Lord. Legislation not infrequently changes a situation, even forces different actions and conduct on people, and brings about the necessity for revisions of arrangements. There is no penalty involved here on anyone for anything that will have happened up to the time that this Bill becomes effective. I should have thought that that being so, any allegation of retrospective legislation must be out of order. I am a little sensitive about this because in another place I was accused of a crime worse than death: of myself introducing retrospective legislation. The noble Lord, Lord Diamond, may remember the circumstances of that. That made a deep
564
and lasting impact on me, and I have been rather sensitive about this ever since. I believe that the noble Lord, when he thinks about this, will agree that what I have said is right.
LORD STONHAM: There will not be a statutory penalty applied in this instance, but the penalty will be loss of an agreement of benefit to employers and employees. That is bad enough.
VISCOUNT HANWORTH: It seems to me that if there is a satisfactory closed shop agreement already working it should not be all that difficult to negotiate a new agreement which conforms with the Bill. The Bill does not make all that much difference at the moment, and if you have a perfectly satisfactory arrangement, for goodness sake review it and get one on much the same terms which conforms with the Bill. I am not the least impressed by the arguments on this side.
LORD DELACOURT-SMITH: If I may make some observations on the contributions which the noble Earl has made, with respect I do not think he really met the major argument which I ventured to submit to the Committee in support of this Amendment. He took his stand on the absolute right of an individual to choose which job he would go into; which occupation he would follow. There is no absolute right. The right can be exercised only if an employer can be found to employ you, so do not let us talk as though workers ever had any absolute right to work anywhere.
EARL FERRERS: To apply to work anywhere.
LORD DELACOURT-SMITH: I think the noble Lord said, "To work". I think the noble and learned Lord has a contribution to make.
THE LORD CHANCELLOR: One does not want to make too many obstacles to work, anyway.
LORD DELACOURT-SMITH: There are obstacles to about 800,000 people in this country at the moment. But the point I put to the noble Lord, and to which he has not addressed himself, is this. There are professions or occupations which for one reason or another are particularly susceptible to overcrowding; occupations where there is no objective standard of qualification which can be

565
easily applied and where the occupation has an inherent attraction; where the employment in itself tends in one way or anather to be casual and where, in default of some such arrangement as this, the occupation can become very seriously overcrowded, with the result that people in it have insecurity of employment and that the employers in it find that they have a constantly shifting, unreliable and unsatisfactory labour force.
I quoted two occupations—and I could have quoted others—where these conditions which had existed in the past had led employers and trade unions to agree on a pre-entry "closed shop" arrangement. So far as my knowledge goes, neither in the case of the theatrical profession nor in the case of the Merchant Navy has anybody advanced a single scrap of evidence that these arrangements work badly, either from the point of view of the employer or from the point of view of the workers or of the public. I was a little puzzled by the intervention which came from the Liberal Benches about the undesirability of having good industrial relations—or, rather, the undesirability of having management and trade unions in agreement. I do not know whether the recipe for good industrial relations is for them to be in total disagreement.
LORD BEAUMONT OF WHITLEY: What about the Musicians' Union?
LORD DELAC'OURT'-SMITH: The Musicians' Union is of course another very good example and I am most grateful to the noble Lord for prompting it. Let us take the example of the Musicians' Union, where many people have virtually no regular employer. Very often an orchestra or band may be assembled for a particular engagement. I cannot see what arrangement one is going to have for an employer under Clause 16. What has he to do if he tries to establish an agreement under Clause 16? Must the man serve there a month within which he is going to join the trade union? As has been said by noble Lords behind me, we seem to be speaking about completely different industries.
LORD LINDGREN: They do not know what industry is.
LORD DELACOURT-SMITH: I think some noble Lords on the Benches opposite
566
have a rather bizarre idea in their minds of how trade unions operate and what the normal course of events is in industry. Those who make the legal approach have understandably usually had the opportunity of seeing an industrial relations situation at an exceptional moment of crisis, where trouble has probably built up over a long period. I do not think they always realise that what they see is a quite exceptional situation; and they do not appreciate the realities with which people have to deal who are concerned with the problems of industry day in and day out—not with a crisis situation but with the situation which consists of trying to avoid the crises.
The noble Lord also advanced as an argument that if this Amendment were adopted this would immediately precipitate a great rush of people to form "closed shops" so as to anticipate the law and take advantage of the clause as it would be if our Amendment were adopted. This is a rather strange conception, that there is a great pent-up desire; on the part of employers and trade unions to form closed shops.
EARL FERRERS: I know the noble Lord does not wish to misconstrue what I said. I never said that this would precipitate a rush, but that it could encourage this to happen.
LORD DELACOURT-SMITH: I accept that it could encourage this to happen, but it would be very strange if in occupations such as this, employers and employees were to act in that way. I do not think it would be unreasonably accelerated if the Amendment were adopted. If the noble Lord will accept the spirit of the Amendment it could be incorporated later with the date, May 1, 1971, or some other date, if he believes this is a serious objection. The noble Lord has not met the main argument, and said whether he actually contends that in occupations which have these elements of uncertainty and insecurity which I have described—and given two examples of—it is the view of the Government that the workers must be completely powerless to influence the rate of entry to the industry, even if the regulation of the rate of entry is absolutely vital to stop serious overcrowding, serious under-employment, serious insecurity and worsening of conditions both from the point of view of

567
the workers and of responsible employers. I am sorry that he has not met these arguments. I must therefore advise my noble friends to press this matter to a Division.
9.35 p.m.
THE LORD CHANCELLOR THE LORD CHANCELLOR moved Amendment No. 56:
Page 5, line 39, at end insert
"(1A) Any worker who, on application to an employer, has been refused engagement, and who claims that the refusal was attributable (wholly or in part) to a provision in an agreement which had the effect of precluding the employer as mentioned in paragraph (a) or
9.28 p.m.
On Question, Whether the said Amendment (No. 55) shall be agreed to?
Their Lordships divided: Contents, 34; Not-Contents, 95.

CONTENTS

Archibald, L.

Diamond, L.

Plummer, Bs.

Ardwick, L.

Evans of Hungershall, L.

Sainsbury, L.

Bernstein, L.

Gardiner, L.

St. Davids, V.

Beswick, L.

Garnsworthy, L.

Serota, Bs.

Birk, Bs.

Ken net, L.

Shackleton, L.

Brockway, L.

Lindgren, L.

Shepherd, L.

Brown, L.

Llewelyn-Davies, L.

Stonham, L.

Champion, L.

Llewelyn-Davies of Hastoe, Bs.

Stow Hill, L.

Chorley, L.

Morris of Kenwood, L.

Strabolgi, L. [Teller.]

Cooper of Stockton Heath, L.

Phillips, Bs. [Teller.]

White, Bs.

Davies of Leek, L.

Platt, L.

Wynne-Jones, L.

Delacourt-Smith, L.

NOT-CONTENTS

Ailwyn, L.

Elliot of Harwood, Bs.

Molson, L.

Airedale, L.

Emmet of Amberley, Bs.

Mowbray and Stourton, L.

Aldenham, L.

Falkland, V.

Moyne, L.

Aldington, L.

Ferrers, E.

Napier and Ettrick, L.

Amery, V.

Ferrier, L.

Nugent of Guildford, L.

Balfour of Inchrye, L.

Fortescue, E.

Penrhyn, L.

Barnby, L.

Glasgow, E.

Rankeillour, L.

Barrington, V.

Goschen, V. [Teller.]

Redesdale, L.

Beauchamp, E.

Gowrie, E.

Reigate, L.

Beaumont of Whitley, L.

Gray, L.

Roberthall, L.

Belhaven and Stenton, L.

Grenfell, L.

St. Aldwyn, E. [Teller.]

Belstead, L.

Hailsham of St. Marylebone, L. (L. Chancellor.)

St. Just, L.

Brabazon of Tara, L.

St. Oswald, L.

Bridgeman, V.

Hanworth, V.

Sandford, L.

Brougham and Vaux, L.

Harcourt, V.

Savile, L.

Burgh, L.

Hatherton, L.

Selkirk, E.

Byers, L.

Henley, L.

Selsdon, L.

Chesham, L.

Hives, L.

Sempill, Ly.

Conesford, L.

Hood, V.

Sinclair of Cleeve, L.

Cork and Orrery, E.

Inchyra, L.

Somers, L.

Cottesloe, L.

Jellicoe, E. (L. Privy Seal)

Stamp, L.

Cowley, E.

Kemsley, V.

Strathcarron, L.

Craigavon, V.

Kilmany, L.

Strathclyde, L.

Cromartie, E.

Lauderdale, E.

Stratheden and Campbell, L.

Cullen of Ashbourne, L.

Lothian, M.

Templemore, L.

Digby, L.

Lucas of Chilworth, L.

Teviot, L.

Drumalbyn, L.

McCorquodale of Newton, L.

Teynham, L.

Dulverton, L.

Mansfield, E.

Thomas, L.

Dundonald, E.

Margadale, L.

Tweedsmuir, L.

Eccles, V.

Massereene and Ferrard, V.

Tweedsmuir of Belhelvie, Bs.

Effingham, E.

Merrivale, L.

Vivian, L.

Ellenborough, L.

Mills, V.

Windlesham, L.

Resolved in the negative, and Amendment disagreed to accordingly.

paragraph (b) of subsection (1) of this section may apply to the Industrial Court for an order under the next following subsection.
(1B) If on such an application the Industrial Court finds—

(a) that an agreement is in force consisting of or including a provision so formulated as to have the effect specified in subsection (1A) of this section, however that provision is expressed and whether it purports to have that effect or not;

(b) that the refusal of the employer to engage the worker was wholly or partly attributable to that provision; and

569

(c) that the provision in question constitutes a substantial derogation from the rights conferred on workers by section 5 of this Act,

the Industrial Court shall make an order declaring that provision to be void".
The noble and learned Lord said: I rise on behalf of my noble friend, who will reply to the debate on this Amendment—if there is a debate—to move Amendment No. 56. I do not know whether this is likely to be a controversial Amendment and, if so, how controversial. It is in fact designed to stop an obvious gap. The Bill as it is drafted has a gap in it because the agreements made void under the terms of the Bill as drafted would have to provide for a pre-entry closed shop totidem verbis. But, of course, it would be very easy to drive the proverbial coach and the proverbial horses through such a provision, because you could say, for instance, that in order to be engaged a person would have to secure approval of two named persons, and that might have the same effect. Therefore, this Amendment is proposed, the effect of which is to give to a worker who is prevented from entering employment on grounds which he claims to be an effective pre-entry closed shop, an appeal to the court to establish that fact. If he fails to establish it, he cannot get in. If he does establish that it is an effective pre-entry agreement that has stopped him to a material extent, he wins his case and the agreement of which he complains is void. I do not think that there is more I need say about it, and I beg to move.
BARONESS WHITE: I hesitate, needless to say, to cross swords in any legal spirit with the noble and learned Lord the Lord Chancellor, but we have taken such legal advice as is available to us, and we are very much concerned about this particular Amendment, because we find, quite frankly, that it could work extraordinarily badly in practice; at least, that is our apprehension. We assume that the object of it, among other things, is to close a loophole, if there were a tacit agreement that was not, possibly, a formal written agreement between the two sides. It may be partly this that the Government have in mind, and perhaps that could be made clear a little later on.
But if one looks at the practical nature of the consequences of this Amendment,
570
may we ask the noble and learned Lord just what is meant in the third line of (1)(A) by "wholly or in part", because it has been put to us that this might be a very difficult thing to determine. We are assuming that the employer, as well as the union, is a party to any such agreement, and that it is in the employer's interest, therefore, if he does not wish to employ a particular worker, to stand by the agreement, whether it is a formal agreement or an understanding—a tacit agreement. If he is brought before the Industrial Court by someone who is aggrieved, the court can ask him, what were his reasons for not offering an engagement to this particular person, and the employer has a number of answers which he would be able to give. He could say that the person concerned was not adequately skilled for the particular job; that he may be too old, or too young, for the responsibility of the position; that he may have a poor health record; that he may live rather far from the place of employment and there may be travelling difficulties if the workers are on shifts, and so on. He might, nevertheless, have at the back of his mind that the man is not in fact a member of the union with which he, the employer, is in agreement, and with which he has satisfactory relations.
What does "in part" means? Is he permitted, at any interview with a prospective employee, to inquire whether the prospective employee is a member of a union? If he asks him this question, would this be taken as evidence that, in part, his ultimate refusal of employment was on that account? We can see all sorts of complications here. We are very much concerned about it, because it will be appreciated that any aggrieved individual who has not been appointed to a job, and who can make any suggestion that there is some sort of agreement between the employer and the union or unions concerned, can go to the industrial court and take up the time of the Industrial Court. I submit that this is an important consideration because the Industrial Court, after all, is the senior court. There are industrial tribunals, but this goes to the Industrial Court, as I understand it. Therefore, we should be very circumspect indeed in laying burdens upon the Industrial Court unless we are quite sire what is the nature of the representations which may be made to them.

571
I can only say that we have been advised (by such legal advice as we have been able to obtain from those who have more experience certainly than I have in any such matters), that this part of the proposed Amendment could lead to endless, mischievous and irritating litigation before the Industrial Court by various persons who might feel they ought to have had a job and did not get it, and who can produce all kinds of reasons why they believe that why they did not have the job was because of some sort of collusion (shall we put it?) between the employer and the union, or unions, concerned, and that this was the barrier. A great deal of time will have to be spent by the court, by people representing the parties, by the employers, in making certain that in every single case where they do not engage a worker where there might be any sort of prima facie suggestion of an agreement between employer and unions, they would presumably have to keep a tape recorder to record what questions they had put when the man came to be interviewed for employment, because even if it was in part—and we do not know what proportion "part" means—an element in the decision of the employer not to employ the person, then presumably this subsection could be invoked.
Turning to (1B), we are also worried about this because it is not clear to us quite how one would deal with the situation before the Industrial Court if they were considering:
"that an agreement is in force consisting of or including a provision so formulated as to have the effect specified in subsection (1A) of this section, however that provision is expressed and whether it purports to have that effect or not".
We have called this Bill a "lawyer's picnic", and surely words of that kind could provide some skilled legal representatives with the most ample opportunities for argument. Therefore, we are very much concerned not only with the whole principle of the clause, which we do not find very attractive, but also with the drafting which seems woolly and inconclusive and likely to lead to endless arguments before the Industrial Court, taking up a great deal of everybody's time and, we suggest, to little effect. So it would help us very much indeed if the noble and learned Lord the Lord Chancellor could explain how he sup-
572
poses that these two subsections of this Amendment will be handled in the Industrial Court, and could give us any sort of assurance that they can be handled in such a way that they will not be open to the sort of objections which have been put to us by people experienced in these matters, who say that this Amendment is very unhappily drafted.
9.46 p.m.
THE LORD CHANCELLOR: I do not know whether this will lead to a debate on the merits of what the noble Baroness has been putting to me, but may I reply because she has asked perfectly legitimate questions and it may be that I can answer them? Her fears about subsection (1A) are really groundless, because if she looks at the terminology she will see at once that this is not something which the Industrial Court will have to determine at all. It simply indicates the circumstances in which the worker can make an application, and that is when he says that there is an agreement in force. What the Industrial Court will have to determine is subsection (1B). That simply states that if a workman thinks he has a particular kind of grievance, he can then apply to the Court which will then have to determine the facts in subsection (1B), and it is subsection (1B) which is the operative one from the point of view that the noble Baroness is putting forward.
The worker has to prove three conditions. There may be difficulties in them, but they are all difficulties in the way of the worker. They are not difficulties in the way of the tribunal or in the way of the trade union. They are difficulties in the way of the applicant, and the applicant is the worker who says that he has a grievance. What is the nature of the grievance? The grievance is that, although in form there is no pre-entry closed shop agreement, there is in operation an agreement which looks like something else but is a pre-entry closed shop agreement. I gave an example when I opened. If I said that nobody shall get employment as my clerk unless he has met with the approval of the Secretary of the Communist Party of Great Britain and the President of the Students' Union, that would not in form be a pre-entry closed shop agreement, but you might well argue that it had the same effect. In other words, the subsection is designed to

573
prevent evasion. It is not designed to deal with the case of a covert agreement, which you probably cannot deal with at all if it succeeds in remaining covert. It is designed to deal with the case of a bogus agreement calculated to outwit the Act.
In order to succeed in subsection (1B), a worker has to achieve three conditions and all the difficulties are his, because the burden of proof remains on him throughout. The first is paragraph (a), to show that there is an agreement of some kind in force. If there is no agreement of any kind between the employer and the trade union, or he cannot prove that there is, then that is an end of the case before he begins. Then he has to show what the agreement includes, and it must include a provision which has the same effect as is prohibited by the burden of the Act; namely, it must have the same effect as a pre-entry closed shop even though, in fact, it is not one in form.
Secondly, he has to show that he has been refused employment; otherwise, he has no grievance at all, however many agreements there are. Thirdly—it is part of the second provision, paragraph (b) of (1B)—he has to show that that refusal was wholly or in part due to the operation of the agreement. In other words, if all that he can show is that the employer shook his head and said, "No, you are too young", or, "No, you are too inexperienced", or, "No, you have not the necessary qualifications", or, "No, we already have an applicant, and we like him better", he does not succeed. He has to show that not only is there an agreement with an offensive provision in it, but that he was refused employment because of it. My mind goes back very much to the debates I had in another place in Committee on the Race Relations Bill, when I was, if I may say so, arguing the opposite case. The answer I always got from the Labour Party was a very much less convincing answer than I am giving now. The answer which I am giving now is convincing because, although there are some difficulties, they are all difficulties in the way of the applicant; they are all difficulties of which the union and the employer, who are "in cahoots" with one another ex hypothesi in this case, can take advantage.
574
Further, he has to show that the provision which he objects to is not something which, by some wild cast of the imagination, might conceivably be regarded as offensive to the pre-entry closed shop prohibition. It has to be substantially offensive to that provision. So he really has a very difficult row to hoe. Without taking away this anti-evasion provision, I do not really know that we could make it more difficult. I am not criticising the legal advice which the noble Baroness says she has had—I am sure she has had it—but I think perhaps her anxieties have been excited by this advice beyond the bounds of what is really reasonable.
LORD BERNSTEIN: Before the noble and learned Lord the Lord Chancellor sits down, perhaps he could help me. I understand that (1B) relates to what the Industrial Court can do and finds. The new subsection (1A) relates to the application of the worker. Can the noble and learned Lord tell me how "wholly or in part" help that provision in any way for a worker? Assuming the words were not in, it would read,
"who claims that the refusal was attributable to a pro vision in an agreement",
et cetera. The other part that the noble and learned Lord mentioned, concerning the Industrial Court, relates to the worker. How is he affected by the inclusion of these words, or how would he be affected by the exclusion of those words?
THE LORD CHANCELLOR: I think that is a pretty obvious question, really. Oddly enough, it was that very point which led me to recall the debates on the Race Relations Bill. Suppose you have a black man who comes in for a job, the employer does not want to employ him, and the black man is dead sure it is because he is a black man. The employe- says, "It is true I do not like black man very much, but actually this man stuttered", or, "this man did something else that I do not like, and it was partly due to that"; so he does not get the job. Unless you put the words "in part" in your provision against discrimination, you cannot protect him. This is designed to prevent the prevaricating employer who says, "It is true he was not a member of the union, it is true that the agreement prevented it, but I thought he lisped rather and he would be bad for

575
my customers, because I did not like the look of him". Then the employee is entitled to say that "in part" it was due to the provision, even if the employer is telling the truth, which he probably is not.
LORD BERNSTEIN: Do I take it that this is to protect the worker against the employer?
THE LORD CHANCELLOR: Yes. It is so designed. It is the one provision which makes the task of the applicant easier. It is the one piece of phraseology in the anti-evasion clause which makes it easier for him. The rest is all the difficulties put in his way.
BARONESS WHITE: We are grateful to the noble and learned Lord for his explanation, but I am still not entirely happy about this. I believe that the Industrial Court will be troubled by applications to it. It will take a great deal of time. I am also concerned about the consequences for industry. The new subsection (1B)(b) says:
"That the refusal of the employer to engage the worker was wholly or partly attributable to that provision;"
Surely this means that the employer or his representative is likely to be called upon to give evidence. One will not simply take the word of the aggrieved non-employee. Will it not mean that the employer will have to keep careful records of anybody to whom he does not give a job?—and he may not know this at the outset of an interview. Will this not be a burden on the personnel department of large firms, and an even greater burden on smaller firms with no such departments. This aspect certainly concerns the employer. I can see the Government's point of view. They want to block a possible loophole. But it will be a burden on the Industrial Court, and on the employer, and not only on the worker.
THE LORD CHANCELLOR: I doubt whether the Industrial Court need cause the noble Baroness much anxiety. Assuming that it does its job properly it will know how to deal with frivolous applications. But the second point overlooks the fact which I tried to emphasise, that before you can invoke this clause and get it airborne you must prove that there is an agreement in force the effect
576
of which is offensive in the sense that it would create a pre-entry closed shop. Until that moment arrives it does not get airborne. When that moment arrives the applicant is in a better position than if he had failed to start; but even then he is only at the beginning of the "snakes and ladder" course, because he has then to establish (b). I am afraid that the history of the Race Relations Board, which has similar problems to consider, has shown that a lot of people think that because they did not get a job it was for the reason that the Act provided, when usually it was for some personal shortcoming of their own. If a case cannot be established the employer will not have to give evidence at all. But if the applicant claims that the employer said, "You are not a member of union 'X' and I have an agreement with 'X' and cannot employ you—and anyway I don't like your face in the bargain", then I think the employer would have to give evidence.
On Question, Amendment agreed to.
LORD DRUMALBYN: I beg to move Amendment No. 57.
Amendment moved—
Page 5, line 40, leave out ("Subsection (1)") and insert ("Subsections (1) to (1B)").—(Lord Drumalbyn.)
On Question, Amendment agreed to.
10.0 p.m.
LORD ARCHIBALD LORD ARCHIBALD moved Amendment No. 57A:
Page 5, line 41, leave out ("in so far as it constitutes, or would constitute") and insert ("of").
The noble Lord said: In moving this Amendment, which in many respects is a very technical Amendment and one which at one time might have been called a paving Amendment, I do not feel that I should deploy the main case, which I think would be more appropriately done at a later stage of the debate. May I say, first, that I intervene in this debate as one who has had some considerable experience in industrial relations but, unlike most of my colleagues on this side of the Committee, my experience has been entirely as representing in industrial relations the employer's side of the case, either as representing a company or as representing an employers' association. So I do not come to a consideration of the Bill without some

577
considerable experience over a great many years. What I am leading up to concerns the clauses which deal with fundamental things—and at this stage I should apologise to the Committee for not being here earlier in the clay when from the Liberal Benches some Amendments were moved which had a bearing on this matter, but I was unavoidably absent from the Committee.
Probably the main debate on what I have in mind would come under either Amendment 128A or 135A, and I hope the Government will either accept this technical Amendment, or agree that it might be referred, if necessary, to a later stage.
The point I am mainly concerned with has been dealt with already this evening by my noble friend, Lord Delacourt-Smith, and others. It refers essentially to the problems concerning Actors' Equity. I am bound to say that I do not think the realities of this situation have been understood on the other side of the Committee. We have had a lot of theoretical arguments which bear no relationship to the actual situation, if I may say so. There has been this discussion about the pre-entry and the post-entry closed shop, but there is something in between, and that is what might be called "the point of entry closed shop". I know this situation mainly from the film industry side rather than from the theatrical side.
If a film producer wants to employ a German or American actor, or an actor in this country who is not a member of Equity, he puts his case, and if Actors' Equity disagrees it goes to a council for consideration. If the council decides that this particular person should be employed and then, on the point of engagement, he agrees to join Actors' Equity, it is not pre-entry membership of Equity; it is not post-entry. It is just at the point of engagement. He agrees that the council, or Equity without going to the national council, may agree that he is an appropriate person. He agrees, and they agree, that he should become a member. It does not fall into either of the categories of pre- or post-entry. This is something that I think the Government might look at again.
We are concerned that all employers should conform to the standards arranged between Equity and the appropriate employers' organisations. In other words, all we are asking is for the retention of the
status quo. This is one of the cases where the status quo has operated without, I think, any hardship to either side. It was either the noble Lord, Lord Byers, or the noble Lord, Lord Beaumont of Whitley, who talked about cases of victimisation; but I do not know of such a case having arisen on this. That is one aspect of the matter. The other aspect is that this is a particular industry where the flood of new entrants must be kept within reasonable bounds. There has been talk about qualifications. That may apply to the legal profession, the accountancy profession, or to the chartered surveyors' profession. But when you start to talk about the acting or dramatic profession you are entering a field so wide as not to give the word any meaning at all.
If you take the output of all the drama schools, and assume that all those who get their diplomas from them have qualifications, there would be as many entrants a year as the total membership of Actors' Equity; and far more than the profession could possibly absorb. You would have young entrants offering to work for £2 a week, or for nothing, in order to get in, and that is a nonsense. I may be trespassing beyond the bounds of this Amendment, but I am trying to indicate that it is a paving Amendment for other Amendments which would maintain the power to require unwilling employers to come into line with those who accept the main provisions.
LORD DRUMALBYN: Will the noble Lord forgive me for interrupting him? Would he mind repeating for which Amendments this is a paving Amendment?
LORD ARCHIBALD: I would not like to be held to this but I think it is Amendments Nos. 128A and 135A. There may be others, but as I have been away for 24 hours I have not been able to check with absolute accuracy. If the noble Lord will agree, I will look at this again and advise him. My point is that this applies in the film industry and in the theatrical industry. In the film industry the situation is peculiar. Generally there is a main company, which we may call "A.B.Q."

579
—in case I should be thought to be refering to an existing company—and for each film they set up a different company. The main company is a member of the employers' association and is bound by the agreement. But they set up "A.B.Y." as the company to make the film, for reasons which, as a layman, I would not know; it may have something to do with taxation. This new company, "A.B.Y.", is not itself a member of the employers' organisation and would not necessarily be bound by the membership of what is not exactly the parent corporation, but at least the dominant corporation.
Again, in the theatrical field I am told that there is at least one major theatrical employer who will not join any of the theatrical associations and therefore is not technically bound by any of their agreements. If this Bill is to be effective it should require the—I do not want to say the fly-by-night employer, because that might be slanderous, but the unwilling employer to conform to the standards agreed by the good employers. That is what I am leading up to. I do not think the Government would disagree in principle with anything I have said, and I hope that at a later stage we may be able to agree upon Amendments to give effect to the principles which I have mentioned. I beg to move.
LORD DRUMALBYN: I am grateful for the very interesting speech of the noble Lord, Lord Archibald. The trouble is that she did not exactly show what he wanted to be the effect of the Amendments which he moved. He regarded them as paving, but he did not say what effects they would have. It may shorten the discussion if I were to say I had been prepared to accept these Amendments purely as drafting Amendments. Of course, as they are paving Amendments I might be tempted not to accept them after all, but I think it would be only fair in the circumstances to say that, as we were going to accept these anyway, we shall accept them. That will give the noble Lord an opportunity to move his Amendments, if indeed they are necessary for the Amendments he has to move later.
On Question, Amendment agreed to.
LORD ARCHIBALD: I beg to move Amendment No. 57B.
Amendment moved—
Page 5, line 42, leave out ("in so far as it constitutes") and insert ("of").—(Lord Archibald.)
On Question, Amendment agreed to.
10.12 p.m.
On Question, Whether Clause 6, as amended, shall stand part of the Bill?
LORD DELACOURT-SMITH: At an earlier stage we sought to move an Amendment which would have limited somewhat the deleterious effects of the clause which is now before us, and in moving that I explained the reasons why we felt this clause was an unhelpful one. I do not propose to rehearse the arguments which I then used, save once more to say that I do not feel that the Government spokesmen have so far met the main argument which I sought to advance. We have had no clear indication of what value they think arises from subsection (1)(b). It is really a very vague formulation. One knows, for example, that there are some cases of unions which have agreements with employers, specifying qualifications which workers engaged should have. There are other cases of men who are engaged on heavy manual work on a piecework basis, where there are agreements the purpose of which is to ensure that any additional men recruited are of a very good physical standard, so that there is no diminution of the group piecework earnings. There are all sorts of arrangements which might be brought under subsection (1)(b) which are practical and reasonable arrangements and would assist in the creation of a good and reasonable atmosphere.
I must again make the point, which has not to any degree been met by the spokesmen of the Government, that our concern is particularly acute in the case of industries of the kind I have already described, where no specific qualifications are required beyond acceptance by the employer and where, because of the character of the occupation, there is a great danger of overcrowding and a reduction of standards, to nobody's advantage. I am extremely glad to hear the noble Lord say that the Secretary of State is still in discussion with Equity and I take it with other unions in the entertainment field, because we certainly feel that their position has not been adequately met. I also took as an

581
example the Merchant Navy and I trust that at some stage of the Bill the Government are going to endeavour to find a way of meeting the very real problems which exist there. There are other industries where similar difficulties, to a greater or lesser degree, arise.
And the noble Lord has not met the point that the implication of what the Government are saying is that it is purely and solely for the individual employer to recruit workers that happen to suit him—the irresponsible employer just like the responsible, and it is the responsible employer who is going to be hit by the application of arrangements of this sort. It seems to be the point of view of the Government that workers collectively are not entitled to expect any arrangements which will enable them to protect the industry, in which the serious and dedicated workers effect their livelihood and careers, from this wholesale inflow of people who can reduce standards. This is a real problem, and I wish the Government would give some indication of their thinking about it and not merely fall back on these no doubt well-meaning but frankly somewhat platitudinous and in some cases unreal general observations.
I am still completely mystified by subsection (2). I did not understand it before and I still do not understand it after the explanation which the noble Lord gave. It did not seem to me that he met the points raised by the noble Lord, Lord Beaumont of Whitley. The last point I want to make is this. It is all very well for the Government to say, in comforting fashion, that if there is a good case for it, then the employers and workers concerned will no doubt get together and create either an agency shop agreement or a closed shop agreement. I do not want to anticipate matters we shall be discusing under Clause 16, but a closed shop agreement can hardly come into existence overnight. Therefore I take it that the Government have appreciated that even if the most speedy steps are taken following the passing of the Act to operate Clause 16, these arrangements would inevitably lead to a gap of time, which surely would produce a most unsatisfactory and disturbing hiatus. I believe that this is a clause at which the Governments
582
should be prepared to look again quite fundamentally. My noble friends and I have made quite clear our criticisms of it. We must confess that we do not feel that they have been fully met, and we regret that the Amendments that have been put forward to try to mitigate the serious consequences were not accepted by the Government.
LORD BROWN: I should like to make a rather separate point on Clause 6 which the Government may not have foreseen. I may be wrong about this, but it is the way I read it. Clause 6 makes provision that any agreement which precludes an employer from engaging a worker because he is not a member of a particular organisation of workers is void unless there is an agency shop agreement in existence. The unexpected result of this could be, so far as I can see, that unless an employer has an agency shop agreement he is precluded from advertising in a form that is not uncommon, saying that an applicant must be a Member of the British Institute of Management, or a Member of the Institute of Personnel Management, or a Member of the Institute of Chemical Engineers, because he is then saying that the applicant must be a member of an organisation of workers, otherwise he need not apply. If that is the result of Clause 6, we ought to understand that it is so. I should regard it as rather serious. If it is not so, I should like it to be explained why it is not.
LORD BERNSTEIN: I should like to support my noble friend Lord Delacourt-Smith, who put forward, I thought, a very direct argument. I would declare my interest. One company in which I am heavily involved has at least six unions working together, and they are all closed shops. Although they are not always as helpful as my colleagues and I should like, we prefer the closed shop. There are practical benefits in dealing with a 100 per cent. union shop. It makes for stronger unions, and I gather from the debate last night that that is what the Government are trying to secure. As my noble friend Lord Delacourt-Smith said, some of these trades are overstaffed. Some of the members of film and theatrical organisations—the A.C.C.T, the N.A.T.K.I., E.T.U., Equity, and the National Union of

583
Journalists—are in trades which are overstaffed and under-employed. The need to underline this problem is a matter for rather urgent Government attention. The noble Lord, Lord Beaumont, said that when management and unions agree it is at the expense of the worker—
LORD BEAUMONT OF WHITLEY: If the noble Lord will forgive me, I did not say that, and I certainly would not have said it. I agree that when management and trade unions agree it is very often a good thing. I merely say that that is the moment when the State should be aware that the rights of the workers need safeguarding.
LORD BERNSTEIN: Then I withdraw that. Hansard will tell us to-morrow what was actually said.
I thought the point of the Bill that the Government are putting forward was to make the unions stronger and to create industrial peace. As every employer knows, the closed shop has produced problems and has affected industry. But how much has it affected industry? How much has it been responsible for strikes? Nobody has come forward with any facts in this Committee. The noble Lord, Lord Windlesham, produced some few facts the other night which I should like to have the opportunity of taking up with him quietly at another time. A noble Lord opposite gave the printers' union as an example of where closed shop troubles have caused serious problems for the industry. Could it be that the printing employers are partly or completely responsible for the troubles? It was said on the Front Bench in the other place that weak management has produced difficult unions. It could be that in this matter the Government are right.
Incidentally, why the agency shop? I have read the Bill time after time and find it hard to understand the legalistic jargon. Why not just say that any worker in a closed shop, if he is a genuine conscientious objector, should have the right to pay union dues to a charity without formally acquiring membership. That seems to me to be simple and direct, and to save a lot of legal jargon. I think the closed shop provisions more than any other in this Bill show a Canute-like attempt to change social mores by Act of Parliament. I
584
urge the Government to think again on this matter, which affects millions of people.
VISCOUNT MASSEREENE AND FERRARD: Would the noble Lord not admit that the closed shop is a great cause of restrictive practices? It has been in my experience.
LORD BERNSTEIN: What are restrictive practices? If you can define that for me in terms that I can answer I will try and get some information.
LORD DAVIES OF LEEK: One of the questions which we have been asking is how much real consultation has there been with the T.U.C. before clauses like this have been drawn up. I see in this Clause 6 an effort—and with the agency shops—to build sporadic types of unions that will undermine trade unionism as we understand it. We are told, my Lords, that there are certain boons, gifts and encouragement in this legal framework we are building for the unions. The agency shop we shall talk about in depth when we reach the famous Clause 10, and we will get some information on it.
What is presented here in Clause 5, and the elements that overlap in Clause 6, will mean the doom of scores of tiny but effective unions in very skilled trades that are still needed in this technological age. There are still great crafts and trades that are small but effective, and in some cases because 16 men in a special craft could keep 1,000 others out of work, some people have spiked that down as one of the jealousies against the trade union movement, because it is alleged that such a thing has happened. A formula has been discovered in Clause 6 which I believe will lead to bitterness if this Bill ever becomes effective. It will not become effective; the way we are going there will be a General Election before it is effective. This Bill will destroy some of the best of the great craft unions. There is an effort here—hidden, but it is there—and I will explain it when we get to the famous Clause 10, for industrial unionism and plant unionism.
Lastly, this forward looking Government we have, that wants us to rush like Gaderene swine into the Common Market, what is to be the effect of this type of unionism when we take a quarter of a million unemployed Italian workers into the country?
A NOBLE LORD: The right of movement.
LORD DAVIES OF LEEK: Ah, the right of movement. It is no good the Liberal Party saying "Ah, ah" or "Oh, oh"—they have been saying that for 40 years. That is why they are where they are. We want ultimately a European system of unionism, but if there is to be a movement of people we want a system that will be not weakened but strengthened. One of the purposes of the Common Market was said to be mobility of labour. One side argues that you must have a Common Market and move "you backward workers of Britain", and have mobility of labour. At the same time as you secure a mobility of labour you build a cast iron legal framework, spiked down with sparks and spanners, which human beings can never break out of. My figure of speech expresses this perfectly. This is a legal binding to hold people in at one moment, when at the other moment you are asking for mobility of labour. It has neither common sense nor logic.
It has been a very pleasant debate to-day. I said this afternoon when we started this debate that I had heard a little girl from Bristol University on the nine o'clock news saying that this is the "Be Nice Day", and everybody should smile at everybody else. We all started smiling at the talented Government. I am hoping that when the kindly noble Lord stands he will make a concession —and he has made some already—and say that at least he will take this clause away for a week and have another look at it.
10.22 p.m.
LORD DRUMALBYN: I do not want to reduce the kindly atmosphere and spoil it in any way, for I welcome it. There has been a certain amount of misapprehension that still exists on this clause. The noble Lord, Lord Davies of Leek, who has just talked to us so agreeably, has said that there is a danger if we go into the Common Market of a great influx of workers; but one of the points that the noble Lord, Lord Delacourt-Smith, perhaps misunderstood, too, is that there is nothing in this clause, or any of the provisions here, that would prevent the laying down of qualifications for entry. Nothing will prevent agreement between the unions and the
586
employers about what those qualifications should be. It is totally mistaken to think that it is essential to control all entry to certain professions, or the regulation of entry to certain professions, and that those who come into these professions must first be union members.
If it is accepted that there is an overcrowding problem, then this can be met by raising the standards of qualification for entry. It can be met by restricting the newcomers to a fixed proportion of those already employed by apprentice ratio; it can be met by requiring a particular degree of experience in some related field or occupation, and I have no doubt in other ways. What is prevented—
LORD DELACOURT-SMITH: I quoted repeatedly two examples. I appreciate that there are various methods of regulating entry to an occupation. Would the noble Lord relate those to the two examples that I gave; and would he say what part, if any, he thinks the trade unions are entitled to play in effecting that regulation? The two examples were the theatrical profession and the merchant navy. Would he say, in general terms, what part he thinks the workers, through their trade unions, are entitled to play in controlling entry to an occupation?
LORD DRUMALBYN: In general terms, the first way in which the workers can be brought in is by consultation on the general prospects of the industry, and the recruitment needed to meet them. Noble Lords have failed to distinguish between the qualifications, and so forth, on the one hand that can be laid down and, on the other hand, the individual applicant. So far as the individual applicant is concerned, what will be prohibited is the requirement that as a condition of his getting the job he should already be a member of a particular trade union, or he should be recommended by a particular trade union. That is what will be stopped here, and we believe it is highly desirable to stop this. I will come to the noble Lord's point. We do not see any harm whatever that can result from the removal of the pre-entry closed shop. It has been admitted on all sides to-day that there are cases where the closed shop does harm—the pre-entry closed shop does do harm. It is to meet

587
those particular cases that this provision is made.
On the previous Amendment, the noble Lord, Lord Archibald, dealt with this very special issue of agreements where one can say that the applicant joins the union and is taken on practically simultaneously. Under the agency shop it is simply a condition that if a man is taken on he must join the union or pay a contribution. No doubt when he is taken on he will then undertake to join the union. He can do it the next minute—I do not know what you call "simultaneous"—if he likes; if the union will have him. That is another point—if the union will have him.
I hope that I have covered that point, but there is just one other point I should like to deal with. It is a very important point which the noble Lord, Lord Delacourt-Smith, raised. He raised the question of voiding of existing arrangements through the voiding of the provision for a pre-entry closed shop. As I understand it, if you make a provision in an agreement void you do not necessarily make the whole agreement void; you make only that provision in the agreement void. What one is left with, then, is something very like the agency shop. I doubt very much whether you will need a great deal of negotiation to make it conform with an agreed agency shop. The only thing is that one must allow those who do not want to belong to the union to opt out of membership, if they so wish, and make a contribution to union funds instead. I would doubt very much indeed whether there would be many people exercising that right, but in our view it really is important that that right should exist. So I really do not think there is very much in this.
I owe it to the Committee also to give a little explanation on subsection (2), which looks a very formidable one. In fact, it is purely declaratory. Indeed, it is merely saying that this clause shall not apply to an agency shop agreement or to an approved closed shop agreement; because both of these practices would not be "on". The pre-entry closed shop could not apply either. So that is the explanation of that. I think noble Lords opposite thought it was something rather formidable. The noble Lord, Lord Brown, sought to link it with subsection
588
(1). It is not linked, except in the sense that agency shop agreements and approved closed shop agreements cannot be affected because by their nature it would be impossible for them to contain any element of a pre-entry "closed shop".
LORD BROWN: May I—
LORD SHACKLETON: Before my noble friend Lord Brown speaks, may I say that for some time I was absent from the Chamber. I came back in a spirit of optimism, believing that the Government might understand precisely what they are doing in this legislation, but I do not believe the Government have answered the points made by my noble friend Lord Brown. I hope that he will come in again on this debate. Least of all have the Government understood the points made by my noble friend Lord Davies of Leek, with reference to the position of craftsmen. These points were spelled out by my noble friend Lord Delacourt-Smith in a different context in regard to actors and seamen, but there has been no reply from the Government.
I must say to Lord Drumalbyn, who is treating us with his customary civility, that I do not believe he really understands what he is advocating. I say this quite seriously. I question seriously whether any of the noble Lords behind him actually appreciate it, other than the generalised idea that somehow it is wrong to require people to belong to a union. It is this aspect of the Government's indifference to the reality of the situation, particularly in relation to craft unions, that we find disturbing. A degree of co-operation, whether it is a condition or not, is essential. I am sure that the noble Lord, Lord Drumalbyn, with his previous experience at the Ministry of Labour and so forth, must know that it is sensible that there should be cooperation between trade union secretaries and others sometimes amounting to an explicit agreement and sometimes not. What he has in fact been saying is that one can require qualifications provided that does not involve the qualification of belonging to a particular trade union. I wonder whether the noble Lord has fully grasped the practical objections to this.
I ask the noble Lord to address his mind particularly to the points made by my noble friend Lord Delacourt-Smith

589
and others of my noble friends. We are now clearly moving into the crunch of the Committee stage when we must probe the intentions of the Government to find out whether they understand precisely what they are doing. It is our contention that in certain respects—and I am sure that many noble Lords with experience of trade union matters agree—the Government's case does not stand up. I hope that an attempt will be made to answer some of our criticisms.
LORD BROWN: I do not want to continue discussion on the point I made earlier, but I want to get something on to the record because I am trying to be helpful. We all remember that we did not do as good job as we ought to have done on the Race Relations Act. There was the case of a doctor in Bournemouth who advertised for a Scottish cook because he wanted his porridge made properly, and he was prosecuted. This was reported in the Press. I am trying to avoid any similar mistake being made. An employer who has not an agency agreement might advertise saying that he wants someone who is a member of a particular trade union or organisation of workers. He may be breaking the law if the association of workers which he names falls within the ambit of Clause 59(1)(a) which defines an organisation of workers. It is possible that some of the organisations referred to by noble Lords on the Government Front Bench as professional associations might be concerned. The Lord Chancellor brushed me aside several times saying that I was wrong, but he was talking to a man who has had a great deal of experience. If you get caught by Clause 59(1)(a) because you will not listen to me, be it on your own head. That is all I have to say.
LORD DRUMALBYN: I apologise for not dealing with that particular point. As I understand it, there is a differene between an organisation in its capacity of negotiating terms and conditions of employment through collective bargains, and in other capacities which have nothing to do with that. But I will gladly look into that point., and if the noble Lord really has found something we shall be exceedingly grateful to him. I am sorry I did not cover that point. I am afraid I was diverted by his previous point, and I thought at that time that noble Lords were anxious to get on.
LORD SHACKLETON: We want answers, too.
LORD DRUMALBYN: I thought I had answered every point that was made.
SEVERAL NOBLE LORDS: No.
LORD DRUMALBYN: I thought the Committee was getting a little impatient to get on. I know I did not answer the point about the actors and the seamen; the reason for that is that we shall have an occasion to debate that when we come to Clause 16. I do not want to be forced to debate again and again the same point. In fact, it was out of order.
SEVERAL NOBLE LORDS: No.
LORD DELACOURT-SMITH: It is no good he noble Lord saying that. It was his side of the House that drew up the Bill in this way, not our side. If the Bill is so drawn up that it necessitates repeated discussion of the same or a closely related point, that is because of the way in which such legislation is drafted. We are speaking on this clause in particular in respect of the two industries which I have mentioned and about matters which are regarded by people in those industries as being vital to their livelihood: the destruction—and nobody has denied this—of arrangements which have existed for many years and which have preserved good standards in those industries. I have repeatedly invited the noble Lord to address himself and to apply his generalities to the circumstances of those two industries. Also I have repeatedly asked that we should be told what, if any, is the Government's conception of the part that the trade union is entitled to have in the control of entry to an industry or occupation where overcrowding is a serious danger and a threat to standards. The only answer I have had on that point from the noble Lord is an airy statement, "Oh yes, we, the Government, believe that there should be consultation with the trade unions about the level of entry to the industry". I think I am representing correctly what he said. But how on earth does he expect that the results of that consultation will be made effective? Are the results of that consultation to rest solely and entirely in the hands of the employers? Is that his conception?
SEVERAL NOBLE LORDS: Answer.
LORD DELACOURT-SMITH: Is it his conception?
LORD DRUMALBYN: I have already said that it would be a matter for consultation, and consultation could no doubt result in agreements.
LORD DELACOURT-SMITH: I am fully aware of that. What I am asking is how those agreements are going to be made effective, and I am asking, if it is the noble Lord's conception that once an agreement has been made that the level of entry to a particular industry should be retained at a certain level, how that is to be made effective. I can only conclude from his answer that it should be done entirely by the employers. Is the noble Lord contending—if that is his contention, as it must be—that the employers are so organised that they can effectively maintain, in the light of consultation, a measure of control in industries of this sort? Can it possibly be done without giving to the trade union some share in the control? I am not making debating points; I am asking a question.
SEVERAL NOBLE LORDS: You are.
LORD DELACOURT-SMITH: If I am making debating points no doubt one of the noble Lords who is so ready to contribute while in a sitting posture will rise and will explain to me and to the Committee how in fact regulation can be made effective in industries of the kind I have described, after consultation, if the trade unions are not going to be given a real share in making effective the agreements which it is suggested they should make. I am suggesting that there is no reason to think that this sort of consultation can be translated by the employers alone into effective regulation of numbers. I am perfectly prepared to come back to this subject on any clause that the noble Lord likes, to give him ample time—if anybody thinks that these are debating points raised at short notice—to consider this point and to come back and explain to the Committee how he really thinks that in an industry, in an occupation with the sort of characteristics that I have been trying to drive home to Members on the Government Benches, any serious regulation of entry can be made effective without the trade unions being properly brought in.
LORD DRUMALBYN: The noble Lord has very properly said, and I appreciate it, that he is prepared to give us further time to think of this point. I very much welcome that; he knows the pressures we are under. But I think the noble Lord has missed the essential point. I have never said that the trade unions should have no part in this; I have never said it should be a matter entirely for the employers. What I am saying is that it should not be a matter entirely for the workers. A pre-entry closed shop can be fixed at a very arbitrary figure indeed, and one of the troubles in this field is simply that it can be an extremely restrictive practice. The arbitrary figure may be fixed and a man may be refused a job because that arbitrary figure has been reached, and yet employers may be crying out for employees in that industry. That cannot be right.
LORD ARCHIBALD: Can there be a pre-entry closed shop without agreement between the employers and the trade unions? In that case do they not normally have machinery for referring contested cases to a tribunal? I think the noble Lord is putting an imaginary, theoretical case, unrelated to the practical application of the closed shop as it exists to-day.
LORD BEAUMONT OF WHITLEY: I do not think that is true. I think there are plenty of cases where the practicalities, as noble Lords on this side are so fond of putting it, show that that is exactly what happens. I had the privilege recently of taking part in a series of lectures at the Royal College of Art. The first person to speak in that series was a trade union leader who talked about the general iniquities of capitalism in its relation to art, and he got on fine with the students until one asked why his trade union was not letting any of their graduates have a work ticket for two years; and if they did not have a union ticket they could not get a job. That is an actual example of how a pre-entry closed shop can be used arbitrarily and wrongly. I quite agree that there is everything to be said for making. Equity and the Seamen's Union work and if noble Lords on this side produce the right kind of Amendments for dealing with that they will find myself and my

593
friends supporting them. But it is useless to say the pre-entry closed shop has not caused great anomalies and hardship and individual injustice in the past and in the present.
LORD SHACKLETON: I must say to the noble Lord that I am now very depressed about the progress of this Bill. Noble Lords on that side may cheer and noble Lords on this side cheer in support. but I would say this to the noble Lord, Lord Drumalbyn, and indeed to the noble Lord who has just spoken: that anyone who has had practical dealings in industry—and there are some noble Lords on this side and on that side—knows that what we are saying is relevant to the realities of the situation. Even if we now proceed further on this clause and let it go through, I am filled with gloom in relation to the future prospects of order and good relations in industry unless the Government will move on this.
I would appeal to the noble Lord, who is a reasonable man, like most noble Lords on the Front Bench, to see that
we are not—and I say this with absolute seriousness—making debating points on this matter. This is a subject of crucial importance for effective relationships in industry. It may well be that we can meet and discuss it, but there is much alarm, and we shall be driven into an impossible position in relation to the progress of this Bill unless we can get some answers to the questions that we put from this side of the House. I will not press the noble Lord, who has been very courteous and has done his best, but we are wholly unconvinced that the Government understand the points we are making.
THE EARL OF MANSFIELD: Would not 'the progress of this Bill be greatly accelerated if certain noble Lords on the Opposition Benches would refrain from making Second Reading speeches on every Amendment?
10.56 p.m.
On Question, Whether Clause 6. as amended, shall stand part of the Bill?
Their Lordships divided: Contents, 87; Not-Contents, 29.

CONTENTS

Aberdare, L.

Ellenborough, L.

Mills, V.

Abinger, L.

Elliot of Harwood, Bs.

Mowbray and Stourton, L.

Ailwyn, L.

Emmet of Amberley, Bs.

Moyne, L.

Aldenham, L.

Falkland, V.

Napier and Ettrick, L.

Aldington, L.

Ferrers, E.

Nugent of Guildford, L.

Amory, V.

Ferrier, L.

Pender, L.

Balfour of Inchrye, L.

Fortescue, E.

Poole, L.

Barnby, L.

Glasgow, E.

Rankeillour, L.

Beauchamp, E.

Goschen, V. [Teller.]

Redesdale, L.

Beaumont of Whitley, L.

Gowrie, E.

Reigate, L.

Belhaven and Stenton, L.

Gray, L.

St. Aldwyn, E.

Belstead, L.

Grenfell, L.

St. Just, L.

Brabazon of Tara, L.

Harcourt, V.

St. Oswald, L.

Bridgeman, V.

Hatherton, L.

Sandford, L.

Brougham and Vaux, L.

Henley, L.

Savile, L.

Chesham, L.

Hives, L.

Selkirk, E.

Colville of Culross, V.

Hood, V.

Selsdon, L.

Conesford, L.

Inchyra, L.

Sempill, Ly.

Cork and Orrery, E.

Jellicoe, E. (L. Privy Seal.)

Sinclair of Cleve, L.

Cottesloe, L.

Kemsley, V.

Somers, L.

Cowley, E.

Kilmany, L.

Stamp, L.

Cromartie, E.

Lauderdale, E.

Strathcarron, L.

Denham, L. [Teller.]

Lothian, M.

Stratheden and Campbell, L.

Digby, L.

McCorquodale of Newton, L.

Templemore, L.

Drumalbyn, L.

Mansfield, E.

Thomas, L.

Dulverton, L.

Margadale, L.

Trevelyan, L.

Dundee, E.

Massereene and Ferrard, V.

Tweedsmuir of Belhelvie, Bs.

Dundonald, E.

Maugham, V.

Vivian, L.

Eccles, V.

Merrivale, L.

Windlesham, L.

Effingham, E.

NOT-CONTENTS

Archibald, L.

Beswick, L.

Brown, L.

Ardwick, L.

Birk, Bs.

Burntwood, L.

Bernstein, L.

Brockway, L.

Champion, L.

Cooper of Stockton Heath, L.

Lindgren, L.

Plummer, Bs.

Davies of Leek, L.

Llewelyn-Davies of Hastoe, Bs. [Teller.]

Sainsbury, L.

Delacourt-Smith, L.

Shackleton, L.

Diamond, L.

Longford, E.

Shepherd, L.

Garnsworthy, L.

Morris of Kenwood, L.

Stow Hill, L.

George-Brown, L.

Nunburnholme, L.

Strabolgi, L. [Teller.]

Hoy, L.

Platt, L.

White, Bs.

On Question, Amendment agreed to.

Resolved in the affirmative, and Clause 6, as amended, agreed to accordingly.
Clause 7 [Appropriate contributions to trade union in lieu of membership]:
11.5 p.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 58:
Page 6, line 5, leave out subsections (2) to (7) and insert—
("(2) Appropriate contributions to the trade union in lieu of membership shall be regular payments only in accordance with the rules of the trade union.")
The noble Baroness said: I beg to move this Amendment. It may seem rather a drastic one, because in it we are proposing to leave out subsections (2) to (7) inclusive. So far as subsection (7) is concerned we are in agreement with the Government, who have themselves at a later stage an Amendment to delete this part of this clause. We think it would be much more satisfactory, and also infinitely simpler, if, in relation to the payment of contributions which are to be made in lieu of trade union membership, one said that they should be
"regular payments…in accordance with the rules of the trade union" and left it at that.
Our reasons for this are that the whole object of this exercise is to eliminate the "free rider", the person who is prepared to accept all the benefits of collective bargaining but to make no contributions towards them. If these payments are therefore to compensate the unions for the provisions in the rest of the Bill, and are to be contributions towards their funds, then it seems to us to be much simpler to say quite straightforwardly, "All right; it is for the benefit of the union or unions concerned, and therefore, provided that one can be satisfied that any payments to be made are in accordance with the normal rules of the union and that there is no discrimination against this particular group of persons, that should be sufficient". The
596
Government have gone into considerable detail in the rest of this clause, much of which seems to us to be quite unnecessary, and we do not feel that we need to have all this red tape concerning these payments in lieu of union membership.
At this hour of the night I do not propose to go any further into this matter. I should like to know that the Government can accept what we think is a much more satisfactory and straightforward proposition. If these payments are to be made to the unions in lieu of normal membership dues, then surely all that is necessary is to be satisfied that they are in accord with the normal rules of the union or unions concerned. The object of the exercise is to eliminate, in the pecuniary sense at any rate, the "free rider". We do not think this is adequate at all, because, as we explained on an earlier occasion, union membership is very much more than just paying your dues. But if the Government are satisfied to deal with it on this level only, then we fail to see why they should not be equally satisfied with payments in accordance with the normal union rules. I beg to move.
LORD WINDLESHAM: As the noble Baroness has explained, this Amendment would delete the subsections in the clause which define the meaning of "appropriate contributions" and regulate their assessment and payment. The Amendment would substitute a new subsection giving the agency union a complete discretion as to the amount an individual who did not wish to join the union should pay in lieu of membership. The Amendment would consequently remove all the safeguards which the subsections in the clause as drafted provide for the protection of nonunion members who are employed under an agency shop agreement. The provisions in Clause 7 allow for an appropriate contribution in lieu of membership to be no less than the union membership subscription excluding optional payments. Furthermore, an initial payment may also be demanded where it would be required

597
of a worker joining the union. The provisions therefore afford reasonable protection of the union interests.
The proposed Amendment removes subsections (2) to (7), and replaces them with a provision to allow the union to determine the level of appropriate contributions payable by non-members and, as the noble Baroness has explained, this would he free of all restrictions. The proposed Amendment therefore would have the effect of allowing a union to frame rules to discriminate against the non-member in an unreasonable and unacceptable way. Rules could be devised which would effectively take away, or act as a powerful deterrent against, an individual's right to choose not to belong to a union. For example, a non-member in an agency shop might, under union rules, be required to pay perhaps as much as double the usual membership subscription for as long as he chose not to be a member of the union. He would have no right of appeal against that level of contribution, nor the right to contribute to a charity instead of a union if unable to establish grounds of conscience.
All these matters would be left to the union to decide in accordance with its rules. I should like to say that there is no more reason to believe that all unions will always, in every case, act as admirably and moderately as one would hope to be the normal pattern of behaviour, than there is in the case of employers. But this Bill attempts to set standards; therefore we consider it is better to spell out these contributions relating to the level of contributions in subsection (2) and (6). As the noble Baroness said, we will be able to agree to delete subsection (7) at a later stage, and there is a Government Amendment down to that effect. There are some special reasons for this which I can explain at that time.
BARONESS WHITE: I am sorry that in replying to the points I put, the noble Lord failed to make any reference to Clause 9. His colleagues have not hesitated to refer to clauses not yet reached. Clause 9(1)(c) says in relation to contributions that if they are:
"such as to represent an arbitrary or unreasonable discrimination by the trade union against him, or against him and other persons who have elected to pay contributions in lieu of membership of the trade union"
598
there is a provision for an appeal, as I understand it, to an industrial tribunal. If the only objection to this Amendment is, in effect, a drafting one—admittedly a serious one—in that it was not made absolutely clear that it should be the normal rules of the union which would apply, and that they would not be in any way discriminatory against those not in full membership, we should be glad to take the Amendment back and redraft it. We do not wish to suggest some extraordinary rate of contribution should be settled for the non-member as opposed to a normal member. That was not the intention of the Amendment. We are willing to look at the drafting again, but with that possible concession on our part, plus the provisions in Clause 9, I do not feel that the arguments against the proposal that we put forward hold water.
LORD WINDLESHAM: I can reply quite briefly. It may not have been the intention of the noble Baroness to put down an Amendment that unions should be encouraged to set an unreasonably high level, but it would make that possible. We do not anticipate that this will be a common pattern, but there is a need to write in safeguards to cover residual situations. The point made about Clause (9)(1)(c), which we shall deal with later, does not really meet this situation if the level of subscriptions is in the union rules. That is why I dealt with the point of the union rules. The rules of a registered union have to be submitted to the Registrar. If, in order to encourage people into the union they decide that people must pay a bit more, even if it was twice as high as the usual level, the Registrar would not feel able to strike it out. If it was in the rule hook, that would be the amount that would go into the agency agreement and could be asked of the nonunion member.
I do not think that the noble Baroness has really added anything of substance to what she said in moving the Amendment; and my reply in substance is the same. I do not think there is a great deal between us. We are spelling out what in practice will happen for 90 per cent. of the time. The noble Lord, Lord Cooper of Stockton Heath, might be able to tell us something about this. The appropriate payment for the non-unionist will be the

599
same as that required from a union member, less the optional element such as the political levy and one or two things of that sort. The effect may be the same. We feel that these safeguards should be included in the Bill.
LORD COOPER OF STOCKTON HEATH: I feel like passing the remark, "Oh what a tangled web we weave"—but I do not want to go on with that quotation because I do not want to make any unpleasant implications. First of all, I cannot conceive of a rule book having differential contributions. It sets out what are the contributions for the members of the union, but it is only one set contribution. I can see them opting out of these cash benefits and things of that kind but it might surprise your Lordships when I say that a person who does not want to be a member of a union should not have the advantages which are due to the members of the union; and it is the case that at the moment in my own organisation that the cost of running it is subsidised by investment income. Our investment income is running at around £500,000 a year, so we are in the red on our contributions. I would argue that if a person comes along and wants to have a special arrangement and is prepared to pay a special contribution but does not want to be a proper union member, it is fair to ask the question: should he be allowed to enjoy the subsidy that the proper union members get out of the savings? In practice, we should not discriminate in this way but it is rather a novel arrangement to take note of—he would be enjoying a privilege even though he did not want it if he pays only the ordinary contribution, less anything there may be in relation to cash benefits which presumably he would not want to take up.
BARONESS WHITE: I still think that we have made a reasonable case and that our proposal would be very much simpler, with the one proviso that I have made, but I do not propose at this hour of the night to continue with or to press this argument. There are other matters under the next Amendment which we would wish to have probed and clarified, and in order to enable us to proceed to those I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
11.19 p.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 59:
Page 6, line 17, after ("exceed") insert ("nor shall they be less than").
The noble Baroness said: I think that there was a slip of the tongue on the part of the noble Lord, Lord Windlesham, when he said that they should not pay less, because that it not what the clause states. It says that the payments made
"shall not in the aggregate exceed the aggregate amount by which he"—
the worker—
"would be required to pay for that year by way of periodical contributions in respect of membership if he were a member of the trade union…."
Right through this clause there are various safeguards for the individual. We want to be certain that though the union may not get everything that the noble Lord, Lord Cooper of Stockton Heath, referred to by way of balancing up of benefits received by members through past savings and so on, at least they should not get less than the aggregate amount. We think that this should be spelled out and that there is an obligation to pay at least as much; and that this sensitivity to the rights of the individual should extend also to the rights of the union. I should also like to ask some questions about how the Government propose that some of these arrangements should work. How is this aggregate amount to be computed? There are, for example, occasions when, for particular purposes, a union will declare a special levy over and above the weekly, monthly or quarterly contribution. Is the nonunion member to be included in an obligation to pay this special levy, or can he opt out of that? Is this going to be a matter of any dubiety, or may we be quite sure that he is going to be involved in this way; that at least he pays any normal additional payment agreed on democratically by the union according to its rules.
With great respect to my noble friend Lord Cooper of Stockton Heath, there are unions in which there are a number of classes of membership, and though for each particular class there is a standard contribution there is a great variety of classes. Who is to decide into which class of membership the non-member is to go? If the union has no jurisdiction over him I see possible difficulties arising

601
about a decision regarding the class in which it would be appropriate for a non-union member to be included. This could lead to great practical difficulties. It may not seem a very important point, but it is exactly this kind of thing which can lead to endless friction and dispute on the shop floor. Therefore I think we are entitled to have some further information about how the Government propose that this shall work.
We cannot see why, in subsection (5)—again we are concerned with the aggregate contribution—there is to be what, at any rate on our reading, seems to indicate a tax holiday of a month for the worker concerned. There is a three-month period in the first part of the clause and one month later on. Does this mean a tax holiday? Does this mean that for the first month of employment in an agency shop he does not have to pay his dues or it is not to be computed within the aggregate? He may not necessarily pay in the first month, but is it to be included in, or excluded from, the aggregate? I think we ought to know that.
The provision for people who are not likely to stay even one month in any particular work has obviously been brought to the attention of the Government and they realise that this goes wider than the construction industry to which at first they were confining this provision. I do not think that we are quarrelling with them on that, but on all these other matters we should like to know how far the Government have thought out the practical points that will arise; and if we are legislating for people all over the country, millions of people, it is our duty in the Legislature to make as clear as possible just what we mean by a clause of this kind which seeks to set out very detailed conditions for payments, which are bound to be sensitive payments for reasons which we discussed earlier in the debate.
LORD DAVIES OF LEEK: There are a couple of questions I should like to elucidate. The object of Clause 10 is to make strike action—to safeguard a pre-entry closed shop, for instance—an unfair practice. The pre-entry closed shop is one where applicants for a job must already possess the appropriate trade union membership.
LORD WINDLESHAM: If I may interrupt, could the noble Lord tell me on what clause he is speaking?
LORD DAVIES or LEEK: Are we not dealing with Amendment No. 59? I will come to it, but I want people to know what we are talking about because I guarantee that there is hardly a Member on the other side of the House who can define a pre-entry closed shop.
LORD WINDLESHAM: But we are not talking about the pre-entry closed shop. We have moved on from Clause 6, which deals with the pre-entry closed shop. We are now on Clause 7, which does not concern the pre-entry closed shop; it concerns the agency shop and the payments which are made in lieu of union subscriptions. The pre-entry closed shop does not arise.
LORD DAVIES OF LEEK: No, but the agency shop has a purpose—to get rid of the pre-entry. That is exactly the point. Now suppose I am coming into the factory on one of these mysterious new systems of trade unionism. I am working on a machine with a fully paid up trade union member, and I am one of these esoteric individuals under the wing of this marvellous legal framework that is made by this new Conservative Poujadist Party. Am I to have the same Safeguards for industrial injuries for this payment? In fact, the matter has never been worked out. Once all this is established, nobody knows what rights this poor creature, who is in the twilight between the heaven and hell of modern existence and is not a member of the union, has compared with those of a full trade union member, so far as his industrial injuries, access to compensation payments, and so on, are concerned. I really think it is a point that concerns this clause, but I do not want to weary the House. I have made my case and I think it is clear enough.
LORD BERNSTEIN: Perhaps the noble Lord can help me when he answers the other questions. I hope I am on the right Amendment with the questions I want to ask. Who will collect the contributions for charity? Who will be responsible for the payments to charity? If a man fails to pay his union dues and is in default, as we know from what we have heard here the union will know

603
what to do with him. I cannot find anything in the Bill dealing with the mechanics of collection and the payments of conscientious objectors. How will they deal with their money? It would seem common sense to me for the employers to be responsible for dealing with this matter. It does not appear to be written in the Bill.
LORD WINDLESHAM: If I may deal with that last point first, may I say that the noble Lord is perhaps on the wrong clause. Clause 8 deals with contributions to charity, and I could answer him on that clause. We are discussing Clause 7. May I move backwards through the points raised? The noble Lord, Lord Davies of Leek, arrived finally, by way of a somewhat circuitous introduction, I must say, at a point which I think was perfectly valid and which does arise on this clause. He said there would be widespread confusion as to the nature of the benefits the non-unionist would receive that the union man would be quite clear what benefits he was entitled to receive but there would be doubt about the position of the non-unionist. This is something we must try to make quite clear, because there is no need for doubt, and these matters will be clearly spelled out in the agency shop agreement. What the non-member will be obtaining for his payment in lieu of membership is solely the benefit of collective bargaining as regards his wages and terms of service. All the other benefits of union membership, of which the noble Lord gave some examples and the noble Lord, Lord Delacourt-Smith, gave some others when he spoke earlier, will not apply to the non-unionist because he is not a member of the union. He has made a payment in lieu, and this is the conception of the union negotiators acting in an agency capacity.
I come to a point of central importance. We think that where non-unionists are paying this amount of money but do not have the benefits, that will be an incentive to joining the union. They may come to see some of the benefits of union organisation which the noble Lord, Lord Delacourt-Smith. has described. He told us how important it is that people should not just contribute the money but should participate in union activities. So here is an incentive.
604
The noble Baroness, Lady White, asked how, if there were differential rates in union agreements, the appropriate rate for non-unionists would be selected. This will be done by agreement between the employer, the individual and the union when the agency shop agreement is drawn up. The amount will be specified in the agreement. And there is the disputes procedure for settling it, if there are arguments about it. The noble Baroness also asked, would there be a "tax holiday" for a month? I would not myself use that word. This is jumping a little ahead, but since the noble Baroness said that these were probing Amendments, perhaps it would be in order for me to move on to subsection (5). The position there is that a man already in employment when the agency shop agreement is signed would have up to three months to decide whether or not he wishes to make a payment to the union in lieu of membership, or to contribute to a charity on grounds of conscience, or to join the union. He has to decide on which of these three courses of action he is going to choose. If a man is joining from outside, the period is one month. No payment is due in that period of one or three months; the payment becomes due after the expiry of that period.
LORD DAVIES OF LEEK: I just want to express our thanks for one of the loveliest little answers we have had all day.
LORD WINDLESHAM: With that, I think I ought to sit down.
BARONESS WHITE: Before the noble Lord does sit down, may I ask him a question which I should have asked earlier? Can he clear up what appears to be a discrepancy between what he has told us and what his noble friend Lord Drumalbyn told us earlier? It refers to the last phrase in subsection (3), where it says:
…excluding any such contribution which (subject to his giving any requisite notice) he would not be obliged to pay."
On first reading, I had supposed that that would cover the political levy, but when we asked the noble Lord, Lord Drumalbyn, about this, he said that the money could be used for political purposes. And he intervened later to assure us that it could be used for political purposes. I was surprised at his answer,

605
but as it was given and is on the record I think we ought to know where we stand on this point. We were asking whether these payments could be used by the union for any purpose whatever and suggested that the education of non-unionists might be an appropriate use for them. This matter ought to be made clear, because there is some contradiction.
LORD WINDLESHAM: I think it will depend on the rules of the individual union. I confess that my impression on first reading was the same as that of the noble Baroness. The last words I understand to be the optional elements of the union due, which excludes the political levy; but the purposes to which a union may put its money is a technical point and one which has been before the courts on a number of occasions. I was not present when this subject was discussed with my noble friend.
BARONESS WHITE: I do not see how it could have been before the courts in this form, because we have never had such rules before. There has been contributions to charity on a voluntary basis, but we have never had legislation of this kind up to now, thank heaven! and therefore this particular situation could not have come before the courts.
LORD WINDLESHAM: The noble Baroness misunderstood me. The point I was making was that the use to which trade unions can put the money which they have drawn from their members is subject to a certain amount of case law: not under the agency shop agreement, because the noble Baroness is quite right in what she says; money coming from the non-unionist is a new concept, and therefore that has not been before the court. I was saying that I was not present when this was discussed with my noble friend Lord Drumalbyn, and I think that he and I ought to get together and sort it out.
BARONESS WHITE: That is a very good idea.
LORD DIAMOND: I am sorry to delay the Committee, but earlier on the noble and learned Lord the Lord Chancellor laid it down, to my great surprise, that payment by a non-member to a union automatically determined the appropriation by that union to union purposes and excluded political purposes. I was not in the Chamber at the time, but I gather
606
that we have had the noble Lord, Lord Drumalbyn, saying with full authority on behalf of the Government quite the opposite. I do not think it is a very satisfactory position for a third Minister to come along and say that, whereas the Lord Chancellor has said one thing, and the noble Lord, Lord Drumalbyn, has said the opposite, he thinks it is something that they ought to look into. We should not have three different views on what is an important matter. I am bound to say to the noble Lord, who apparently was not aware of these previous exchanges, that the noble Lord, Lord Drumalbyn, spoke a considerable period after the noble and learned Lord the Lord Chancellor, after this very matter had been raised, and after there would have been full opportunity in the normal circumstances for consideration and consultation with those who advise the Government on these matters.
THE EARL OF SELKIRK: May I say that I was here when my noble friend, Lord Drumalbyn, made the remark, and my recollection is entirely different from that of the noble Baroness. I thought that my noble friend said precisely that it was not available for political purposes.
LORD DELACOURT-SMITH: With respect, I think the noble Earl heard the first observation from the noble Lord, Lord Drumalbyn, but there was a second observation later. I think possibly it was the first observation that the noble Earl heard.
EARL JELLICOE: If I could intervene for a moment, I heard both the first and second observations of my noble friend Lord Drumalbyn. I think noble Lords opposite may have a point here. What I would suggest is that we should look at Hansard to-morrow. We are all speaking from memory after a fairly long day's debating, and if there are points to be cleared up we can clear them up in our debate. I think this would he the most sensible way to proceed, rather than to exchange reminiscences and recollections which may be imperfectly remembered.
BARONESS WHITE: I am sure we should be very happy to accept the suggestion of the noble Earl the Leader of the House. I have no doubt at all in my mind as to the second intervention, because I have an interest to declare. I am a member of the National Executive of the Labour Party, and I was delighted

607
to learn that this money could be devoted to political purposes if it was so desired. I think it would be much better if we left this point at the moment. Again, I do not wish to press this Amendment. It was, to some extent, a probing Amendment. I think we have aired and, to some extent at any rate, clarified some of the points which have been worrying us. I think it is an essential part of our obligations in this Committee so to do, because, as I said earlier, these matters come very close to the individual on the shop floor. I make no apology for raising matters of detail of this kind, because it is essential that members of a union should be aware of these things. It is not only the national officers who are represented in your Lordships' House who should know, but people at all levels should be aware of exactly what is expected of them and what the conditions are. Having aired the matter, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD DELACOURT-SMITH LORD DELACOURT-SMITH moved Amendment No. 60:
Page 6, line 30, at end insert—
("( )Every agency shop agreement shall provide for authorised representatives of trade unions or independent organisations of workers to whom it applies to be provided with, by the employer at intervals of not more than three months, lists of names, numbers and descriptions of workers who are liable for payments of contributions in lieu of trade union membership subscriptions, and every such agreement shall make provision for the method of payment by the employer to the trade union or independent organisation of workers of such contributions in lieu of trade union contributions such payments to be made at intervals not longer than two weeks.
( ) Every agency shop agreement shall provide that the employer shall be responsible for transferring to the union or independent organisation of workers, at not less than the stated interval, such sums as may be due in respect of appropriate contributions in lieu of membership. and facilities shall be afforded to authorised representatives of the trade unions or independent organisations of workers to scrutinise an account which the employer shall make of such payments whenever such representatives deem it appropriate to do so.")
The noble Lord said: This is one of those admirable Amendments which is indeed almost a speech in itself, and it is so full that I think it needs very little explanation and, I trust noble Lords opposite will agree, very little justification. As the clause stands there is considerable room for legitimate uncertainty about the
608
machinery for the transfer to the trade union of any sums of money which may accrue from the payments made or due to be made by non-members. The purpose of this Amendment, long though it is, is the simple one of ensuring that there is an obligation placed on the employer to provide periodic information about the numbers and locations of nonmembers who are liable for contributions, and to be responsible for the transfer to the union of the appropriate sums. I think that noble Lords will agree that this is probably the most satisfactory arrangement. Clearly, to expect a union collector to go and collect from a non-member would seem to provide a regular possibility of friction which there is no point in creating if it can be avoided. I trust that this Amendment, in the few words in which I have commended it, will find acceptance by the Committee.
LORD WINDLESHAM: I was a little slow in rising to my feet because I thought some noble Lords opposite might wish to add further arguments. Under an agency shop agreement which is defined, as noble Lords know, in Clause 10, an employer agrees that, in respect of workers of one or more description, the terms and conditions of employment shall include a condition that each worker must either be or become a member of the agency union or pay an appropriate contribution to the union. The onus to belong to the union, or to pay the contribution instead, is therefore upon the worker. If the worker fails to observe this condition of employment he may be dismissed or otherwise penalised by his employer. The union may induce the employer to dismiss or penalise him, and such action on the union's part would not be an unfair industrial practice. Therefore the rights of the union in the agency shop situation are adequately enforced, and this provision is greatly to the advantage of the trade unions.
As a matter of practice, there is nothing in the Bill to prevent a union making an agreement with the employer under which the employer would furnish information about non-members, nor is there anything to prevent a non-member authorising his employer to deduct the appropriate contributions from his wages and pay to the union. The union should already know who are the contributing non-members, and the union will be encouraged to keep

609
its own records, based on whatever sources of information seem most appropriate. We are all anxious to simplify the provisions of this Bill and avoid introducing complicated and unnecessary Amendments. This is almost completely the reverse of the first Amendment in this group, No. 58, tabled by noble Lords opposite, who argue that what is already in the Bill is perhaps too detailed. I explained that we felt that a safeguard was needed, and did not feel it could be taken out on that particular occasion.
Let me repeat, there is nothing to prevent employers making such voluntary agreements with their agency shop unions.. But if the provisions in the Amendment are given statutory force, and made mandatory on the employer, we see considerable difficulties as regards enforcement. The Government believe that this may best be dealt with by voluntary agreement. In the light of what has been said, I should be surprised if the Opposition felt inclined to press this.
LORD DELACOURT-SMITH: I must warmly congratulate the noble Lord on having succeeded in keeping a straight face while he made that speech. When he says that the Government do not want to introduce unnecessary complications and unnecessary detail into this Bill, and that they believe that these matters are best left to voluntary agreement, the noble Lord is touching points of high comedy. This answer, with the greatest respect, will not do, or begin to do. As we have made clear, we do not like the agency shop agreement; we do not like the agency shop concept. If we are going to have that concept it is necessary to have some more precise way in which it is to be put into operation. Noble Lords opposite should take this matter back for further consideration. They are saying that it should be left to some arrangement to be applied by an employer, who perhaps does not like the arrangement, and the trade union, who does not like the arrangement, to deal with the financial obligations of what may be scattered men in a fairly sizeable factory.
I modestly suggested, and did not elaborate it because it was so obvious that it did not need elaboration, that it would be hardly suitable for the normal trade
610
union collector to go round and collect this money. If we are going to have an arrangement of this sort it should be a business-like one. I hope that the noble Lord opposite will look at this matter again. If there is no obligation of this sort put in the Bill I can see endless difficulties arising. Perhaps one could put this in the Bill and say that alternative agreed arrangements could be made. Think, for example, of the nonmember who falls into arrears with the payments which he is due to make. Is he expected to pay absolutely punctually, weekly or monthly, according to the way the trade union contribution is defined? If he falls in arrears by one week, or month, is the union entitled to go to the employer and say, "This man must be dismissed"? That, presumably, would be the entitlement of the union under the law as it would stand. Yet I am sure that if the union did that noble Lords opposite would at once be saying, "What harshness! What standing on a technicality to try and persecute this non-unionist in this way!"
How many weeks or months is he allowed to get into arrears? How do you deal with the problem which exists so widely even in the trade union movement itself, especially where workers are moving about, of a man who falls into arrears, and finds the arrears have amounted to a sum that makes it quite difficult for him to pay in a normal week? Endless problems and petty difficulties are going to arise. Frankly, I do not think that this is a very sensible arrangement at all. But if we are going to have imposed upon a substantial part of industry this artificial arrangement—and we shall have more to say about it when me come, ultimately, to the clause that actually sets it up and defines it—do let us write into the Bill some sensible arrangement about the collection of this wretched money.
Already in a large number of concerns, of course, there are arrangements for union contributions to be deducted from the pay of union members and paid direct to the union. I should have thought it breached no principle, and was the wisest way of dealing with what can otherwise be a very tricky subject; to have it dealt with, at any rate by Statute, in the way a we suggest, even though I am sure my noble friends would not resist it if the

611
Government suggested that, while something along these lines should go in the Statute, there should also be provision that the trade union and employer in a particular case may agree on alternative arrangements. But I do hope that noble Lords opposite will look at this matter again.
11.52 p.m.
LORD DAVIES OF LEEK: This is important. We were told at the beginning of the proceedings on this Bill that the object was to improve industrial relations. My noble friends who moved this Amendment from the Front Bench really have a point here of paramount importance. The first question we should ask is this: what is an agency shop? Only a registered union can establish an agency shop; but, as we shall find later in the Bill, before an agency shop can be establishted there are many detailed hurdles to climb and get over, which I will not describe at this moment because we shall reach them at the famous Clause 10. Those hurdles have to be jumped over and they will cause all sorts of discussion. They could very well cause a little bitterness—I am modifying my language—in industrial relations.
As my noble friends on the Front Bench have said, it is essential for men working at the bench, or in the factory, or in the plant, to know who is who and what is what in modem industry. If it is said that this is tautological or long, and that a voluntary method could be obtained here, we might answer back quite logically: "If you think a voluntary effort can be put at this important point in the Bill, why could we not have the entire trade union movement on a voluntary basis, too?" But the Government have decided against that. Here I am going to finish. I assure noble Lords opposite that I see no harm at all in writing into the Bill, if they hope it will become an Act, that these collections and these dues should be known to those persons in the registered union as and when it is convenient, and as and when it is legitimate for them so to do. It would make for a better atmosphere on the shop floor, a better atmosphere in the plant, and better industrial relations. And if the Government think this is not the appropriate language, well, with their skill
612
and Parliamentary draftsman it will take only the snap of a dragon's foot to get the right language. Please, tonight, I think this is worth taking back. We had a lovely answer on part of my question before. I hope the noble Lord will say, "All right, the Government are prepared to have a look at this matter and bring it back to you for consideration."
VISCOUNT AMORY: This is the kind of practical point which it is very right should be brought up in the Committee stage. I know how important it is for good relations that things should be done in the way people on the shop floor think is best. I see the point which the noble Lord, Lord Delacourt-Smith, has made that the trade union collector might find it awkward to go to non-members and collect the money. I also see that perhaps some of those individuals concerned may, on their side, feel it would be awkward to have their money collected by the union collector when they do not want to be members of the union. So this is a practical point, and I would feel that in one way or another it ought to be met.
Maybe the answer is that an agreed arrangement should be worked into each particular agency agreement—I do not know whether that would be the way of doing it or not. But I think it is a practical point we are up against, and that we ought to bear it in mind, at any rate, when we come to consider the agency agreement, in order to be satisfied that it is likely to work. Sometimes these little things can be very important indeed, but I think it might be a little top-heavy to include this in the clause.
LORD WINDLESHAM: I should like to take my theme from what was said by my noble friend Lord Amory, who has had very considerable experience of industry. I do not think it would be right, or that noble Lords opposite would expect me, to say that we could accept this form of words. I do not think the noble Lord, Lord Delacourt-Smith, even suggested that. These doubts have been advanced, but we hope that in practice these difficulties will not arise and that voluntary agreement could be reached. However, in the light of what has been said I think it right for me to say that we will look at this again between now and Report.
LORD DELACOURT-SMITH: In the light of the statement made by the noble Lord, Lord Windlesham, which we very much appreciate, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD WINDLESHAM LORD WINDLESHAM moved Amendment No. 66:
Page 6, line 44, leave out ("construction").
The noble Lord said: I move this Amendment on behalf of my noble friend Lord Drumalbyn. With the leave of the Committee, perhaps I might speak at the same time on Amendment No. 67, which is consequential to Amendment No. 66. Subsection (5) of Clause 7 provides that a worker shall not be required by an agency shop agreement to pay the appropriate contribution in respect of certain periods. The noble Baroness, Lady White, touched on this in debate on an earlier Amendment. In the case of a worker already in employment when an agency shop agreement comes into effect, the period is three months from the date when it takes effect. In the case of an employee being engaged, the period is one month from the commencement of employment.
In the construction industry where a large number of workers are employed for periods of short duration and there is a small permanent labour force which is often supplemented by a large number of transient workers, this would often make the operation of an agency shop agreement impracticable. Subsection (6) therefore enables the Secretary of State to make an order substituting an agreement for short periods and subsection (7) defines "construction work".
Since the Bill was considered in another place, representations have been made to the Government that these problems of short duration of employment and movement of workers between employers are by no means confined to the construction industry. Such conditions occur also in the entertainment industry, in agriculture, seafaring and other industries. It would seem to us reasonable to extend the power of the Secretary of State to enable him to make an order modifying the requirements for the period after which the appropriate contribution becomes pay-
614
able where it would be appropriate for that to be done. The second Amendment would omit subsection (7). I hope that these Amendments will commend themselves to both sides of the Committee. I beg to move.
BARONESS WHITE: I do not think we need spend much time on this, but I am delighted that the Government are extending their knowledge of industry. They should know that the construction industry is not the only industry to which this problem applies. This Bill has been through another place, yet now we have to have a Government Amendment to bring the Bill into line with reality. I am glad that at last the Government are waking up to some of the facts of industrial life.
LORD WINDLESHAM: I beg to move Amendment No. 67.
Amendment moved—
Page 7, line 4, leave out subsection (7)—(Lord Windlesham.)
On Question, Whether Clause 7, as amended, shall stand part of the Bill?
LORD DELACOURT-SMITH: I think we have made our general position on this clear; that is, that although we seek to make Amendments and improvements in detail we deeply dislike the scheme of which this clause is an essential part. I think perhaps further argument on the subject would be otiose, but we shall feel bound to divide the Committee on this clause.
LORD GRAY: Before we leave this clause, may I ask my noble friend whether, before the next stage of the Bill, he would look at one small point in subsection (5)? It is whether in fact all categories are covered by the workers who are in the employment when the Bill comes into force and those who are engaged subsequently. There are questions of transfers and people in full-time training. I wonder whether he can tell the Committee whether they all come in?
LORD WINDLESHAM: I would be happy to meet the noble Lord and discuss that point in detail before the next stage of the Bill.
12.2 a.m.
On Question, Whether Clause 7, as amended, shall stand part of the Bill?

CONTENTS

Aberdare, L.

Dundee, E.

Napier and Ettrick, L.

Aldenham, L.

Dundonald, E.

Netherthorpe, L.

Aldington, L.

Eccles, V.

Nugent of Guildford, L.

Amory, V.

Effingham, E.

Pender, L.

Balfour of Inchrye, L.

Falkland, V.

Poole, L.

Barrington, V.

Ferrers, E.

Rankeillour, L.

Beauchamp, E.

Fortescue, E.

Redesdale, L.

Beaumont of Whitley, L.

Glasgow, E.

Reigate, L.

Belhaven and Stenton, L.

Glendevon, L.

St. Aldwyn, E. [Teller.]

Belstead, L.

Goschen, V. [Teller.]

St. Just, L.

Brabazon of Tara, L.

Gowrie, E.

St. Oswald, L.

Bridgeman, V.

Gray, L.

Sandford, L.

Brougham of Vaux, L.

Greenway, L.

Savile, L.

Carrington, L.

Grenfell, L.

Selkirk, E.

Chesham, L.

Hives, L.

Selsdon, L.

Colville of Culross, V.

Jellicoe, E. (L. Privy Seal.)

Sempill, Ly.

Conesford, L.

Kemsley, V.

Sinclair of Cleeve, L.

Cork and Orrery, E.

Lauderdale, E.

Somers, L.

Cottesloe, L.

Lothian, M.

Strathcarron, L.

Cowley, E.

McCorquodale of Newton, L.

Stratheden and Campbell, L.

Craigmyle, L.

Mansfield, E.

Templemore, L.

Cromartie, E.

Margadale, L.

Terrington, L.

Denham, L.

Massereene and Ferrard, V.

Tweedsmuir of Belhelvie, Bs.

Digby, L.

Mowbray and Stourton, L.

Vivian, L.

Drumalbyn, L.

Moyne, L.

Windlesham, L.

Dulverton, L.

NOT-CONTENTS

Archibald, L.

Delacourt-Smith, L.

Nunburnholme, L.

Ardwick, L.

Diamond, L.

Platt, L.

Bernstein, L.

Garnsworthy, L. [Teller.]

Plummer, Bs.

Beswick, L.

George-Brown, L.

Sainsbury, L.

Birk, Bs.

Hoy, L.

Shackleton, L.

Brockway, L.

Janner, L.

Shepherd, L.

Brown, L.

Lindgren, L.

Stow Hill, L.

Champion, L.

Llewelyn-Davies of Hastoe, Bs. [Teller.]

Strabolgi, L.

Davies of Leek, L.

White, Bs.

Resolved in the affirmative, and Clause 7, as amended, agreed to accordingly.
House resumed.

TEESSIDE CORPORATION (GENERAL POWERS) (No. 2) BILL [H.L.]
Reported, with Amendments.