Lords Sitting of 10 May 1971

Preamble
The House met at half past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lichfield.

EXPORTS: INFORMATION SERVICE AND OVERSEAS BUYERS
LORD BROWN: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they intend to advertise to overseas buyers in foreign countries the existence of the Ministry of Trade and Industry's Computerised Export information service as a means of getting in direct touch with British suppliers of the goods which they require.]
THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN): My Lords, some advertising has already been undertaken on this subject on an experimental basis in Western Germany, Sweden, the Netherlands and Australia. Its effectiveness is still being assessed, and its continuation in these four countries and its extension to other selected markets will be considered when the results have been fully analysed.
LORD BROWN: My Lords, I am grateful for that Answer, and delighted to hear that the Government are spending money in this admirable way. No doubt the Minister is aware that until recently, at any rate, the number of inquiries being received per British post overseas per week was only of the order of 36 per post. I certainly hope that this advertising programe will extend the number very greatly indeed.

E.E.C. NEGOTIATIONS: POSITION OF THE CHANNEL ISLANDS
2.36 p.m.
LORD AYLESTONE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether in the negotiations for membership of the E.E.C. they have stressed fully the economic position of the Channel Islands and have endeavoured to safeguard their trade and industry; and have indicated to the E.E.C. the importance of maintaining the unique constitutional position which exists between the Channel Islands and the United Kingdom.]
THE PARLIAMENTARY UNDER-SECRETARY OF STATE, FOREIGN AND COMMONWEALTH OFFICE (THE MARQUESS OF LOTHIAN): My Lords, the position of the Channel Islands has not yet been discussed in the negotiations with the E.E.C. but Her Majesty's Government maintain close contact with the Islands' authorities so that their interests may be fully taken into account in the negotiations.
LORD AYLESTONE: My Lords, while thanking the noble Marquess for his reply, may I assume that there are not likely to be any constitutional changes?
THE MARQUESS OF LOTHIAN: My Lords, the Channel Islands authorities have had continuing conversations and discussions with my right honourable friend and my noble friend the Minister of State at the Home Office, about a great many subjects, which at this stage must remain confidential, but these are all matters which will be taken into account when the time comes to discuss the matter.

LABELLING OF MEDICINES
LORD ARCHIBALD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether there is any progress report on

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the question of the labelling of prescribed medicines since a reply was given to a Parliamentary Question on May 18, 1970.]
THE MINISTER CF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (LORD ABERDARE): Yes, my Lords. I understand that there has been good progress in the discussions between and within the professions on proposals to change the ruling convention between doctors and pharmacists as to the labelling of a dispensed medicine where the prescriber has given no specific directions. The opinion of the local bodies representative of pharmacists was again sought and consultation within the pharmaceutical profession is now completed. In the event of final agreement being reached between the professions I would expect them to approach the Department jointly with their proposals.
LORD ARCHIBALD: My Lords, while thanking the Minister for that rather helpful and hopeful reply, may I ask him whether he can give any indication of when action is likely to be taken on this matter? I would remind him that I have been asking this question every year for eleven years and I hope I do not have to go on asking it for another eleven years.
LORD ABERDARE: My Lords, I am aware of the number of times that the noble Lord has asked this question, and also that the answer has usually been, "Yes, my Lords." But at least the consultations within the pharmaceutical profession are now complete, and as soon as it can be agreed with the medical profession I hope we shall see some action.
LORD SEGAL: My Lords, could the noble Lord give any indication as to the lines along which good progress has so far been achieved?
LORD ABERDARE: My Lords, the pharmaceutical profession are happily considering the proposal that they should label medicines, unless specifically asked not to do so by the prescribing doctor.
BARONESS SUMMERSKILL: My Lords, the noble Lord has told the House about the discussions that have taken place with the medical profession and the
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pharmaceutical profession, but is there not another great interest involved; that is, the interest of the patient? Is consideration being given to that? And how can we elicit the opinion of the patient on this subject?
LORD ABERDARE: I should have thought, my Lords, that the medical profession had the interests of the patient fully at heart.
LORD WYNNE-JONES: My Lords, now that medicines are being sold by Her Majesty's Government, is it not obligatory that they should be labelled correctly?
LORD ABERDARE: I am not quite sure what the noble Lord's question is aimed at but, of course, we have not done more than to raise the fee which is paid; we have not altered the principle.
LORD BURNTWOOD: My Lords, on the slightly broader question of the labelling of medicines, have the Government yet issued regulations under Section 85 of the 1968 Act? If they have been issued, may a copy be placed in the Library?
LORD ABERDARE: My Lords, I am afraid that I need notice of that question, but I will certainly look into it and let the noble Lord know.
BARONESS SUMMERSKILL: My Lords, as we have waited very patiently now for some years, could the noble Lord let us know specifically when the announcement is going to be made?
LORD ABERDARE: My Lords, I thought I had made it plain that the professions had not yet agreed on this matter. It has been agreed within the pharmaceutical profession but it is now a matter for discussion between the pharmaceutical profession and the medical profession.
BARONESS SUMMERSKILL: But in view of the fact that the noble Lord, I think quite erroneously, believes that the medical profession always represents the interests of the patient, may I ask him whether he still thinks that the interests of the pharmaceutical profession are identical with those of the medical profession? They are not, and that is why there is this great delay. When are the Government going to decide the matter?
LORD ABERDARE: My Lords, the interests of the pharmaceutical profession have now been cleared, and they have agreed, but the medical profession in this matter are taking into account only the best interests of their patients.
LORD ARCHIBALD: May I ask the Minister whether it is not correct that, in addition to the Council of the Pharmaceutical Society, the Committee on Safety of Drugs and the General Medical Services Committee are also of the same view? If these three bodies have similar views on the matter, what is holding it up still further?
LORD ABERDARE: My Lords, I hope that it will not be held up much further, in view of the fact that most people are at one on this matter.
LORD SLATER: My Lords, can the Minister state what the position would be if the pharmaceutical profession agrees and the medical profession does not agree to this? If there is failure to agree in the final analysis, what is the situation? Is this going to be taken to arbitration, as in the case of a failure to agree in the industrial field?
LORD ABERDARE: My Lords, that is a hypothetical question which I hope will not arise.

ROLLS-ROYCE RB.211 ENGINE AND TRISTAR AIRCRAFT
2.53 p.m.
THE SECRETARY OF STATE FOR DEFENCE AND MINISTER OF AVIATION SUPPLY (LORD ARRINGTON): My Lords, I should like to make a Statement about the progress of the RB.211 negotiations. As the House knows, Her Majesty's Government and Rolls-Royce (1971) Ltd. have been in negotiations with the Lockheed Aircraft Corporation for the supply of the RB.211 engine to power the Lockheed TriStar aircraft. We have also had discussions with the United States Government. Negotiations with the Lockheed Aircraft Corporation have been in two parts. First, Her Majesty's Government have agreed with the Lockheed Corporation to finance Rolls-Royce (1971) Ltd. in the development and production of the engine and to enable them to maintain the necessary support facilities throughout the life of the engine
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—provided that we can be satisfied that there is sufficient support to enable the TriStar project to be completed.
For their part, the Lockheed Corporation have agreed to a substantial increase in the price of the engine, equivalent to some £50 million for the first 555 engines, and to annul penalties under the old contract for delay in delivery of the engine. On that basis Rolls-Royce (1971) Ltd. have been negotiating a new contract with the Lockheed Aircraft Corporation, which is on the point of agreement. The new contract will be governed by English law. Because the RB.211 has been designed for the Tri-Star and there is at present no other significant market for it, it was clearly necessary, as part of the contract negotiations, to be sure about the future of the TriStar project itself. Given the risk involved in large aviation projects and the known problems of Lockheed, it is clear that effective support for financing the TriStar project can only be provided with the assistance of the United States Government, just as support for the RB.211 engine can only be given by Her Majesty's Government.
The United States Administration have now announced that they are seeking authority from the United States Congress to guarantee up to 250 million dollars additional credits for Lockheed, which amount they anticipate will be sufficient to assure the continuity of the TriStar project. Before providing such guarantees, the Administration will, of course, have taken steps to satisfy themselves that the other requirements for the completion of the project are met. The main outstanding point here is that it will be necessary for both Governments to be sure that the airlines customers will still buy the Tri-Star, notwithstanding the delay and the increase in price. Representatives of Lockheed and the airlines are meeting in London at this moment with Rolls-Royce (1971) Ltd. for detailed discussions on this point and on the arrangements for completing the RB.211 project.
Meanwhile, Her Majesty's Government are continuing to finance work on the RB.211 engine and the Department of Trade and Industry is discussing with Rolls-Royce (1971) Ltd. arrangements to provide the company with the finance it will need to give effect to the agreement

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with Lockheed. This will involve some £100 million for completition of the development of the engine: to the extent that costs are not covered by the price increase which Lockheed have agreed there will have to be additional support for initial production engines. Against these costs we must of course set those which would be incurred, if the project did not continue, and the profits arising from the sale of spares.
The House will appreciate that there are still problems to resolve before we can be sure that RB.211 will go ahead. Her Majesty's Government have done everything they can to establish a basis for agreement that is acceptable to all concerned. In particular, they have kept RB.211 going, and will continue to do so, in the expectation of a satisfactory agreement. An early decision from the other parties concerned is a matter of increasing urgency. Meantime, the House will appreciate that delicate and complex negotiations are continuing.
LORD BESWICK: My Lords, I am sure that the whole House will be grateful to the noble Lord, Lord Carrington, for making that Statement. I am sure, too, that the House will welcome the substance of the Statement. We welcome it on this side particularly because it appears to re-establish the commercial integrity of this country. I would offer my congratulations, if I may, to the noble Lord, Lord Carrington, and indeed my admiration, for the way in which he has appeared to handle this affair. It seems a very long while since the day when the noble and learned Lord who sits on the Woolsack told us that there was no difference between Rolls-Royce and a sweet and tobacconist shop on the corner.
May I ask the noble Lord, Lord Carrington, one or two questions? First, he said in the Statement that £100 million would be involved for the completion of the development of the engine but that further sums would be required if the costs of production are not covered by the price increase. May I ask whether this is an open-ended commitment? If not, to what extent is it intended to support Rolls-Royce in this regard? Secondly, may I ask to what extent the possible B.E.A. TriStar order has been involved in these discussions? Would
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the noble Lord confirm that it would be quite intolerable if any undertaking were given to compel the British Corporation to go against whatever might be their commercial judgment when they came to buy their next generation of aircraft? May I also ask what the position is now of sub-contractors? They are people who will have built parts of the engine and have not received a proper return; yet we now understand that Rolls-Royce is to receive the full cost of the engine. Is this reflected in any way in the position of the sub-contractors?
LORD BYERS: My Lords, may I also add our congratulations to the noble Lord, Lord Carrington, on the way he has regained the initiative for this country? After a very shaky start indeed it is wonderful to hear a progress report indicating that there is some chance of getting a viable package deal going. In view of the complicated and tricky negotiations which still have to be finalised, I do not propose to ask any questions.
LORD CARRINGTON: My Lords, I am grateful both to the noble Lord, Lord Beswick, and to the noble Lord, Lord Byers, for what they have said. It would be churlish of me to quarrel with the noble Lord, Lord Beswick, after what he said, but I think I must defend, if he needs any defence, my noble and learned friend on the Woolsack. I do not think he said anything of the kind. If the noble Lord, Lord Beswick, will re-read my noble friend's speech, he will find that the context of his remarks was quite different from that in which the noble Lord, I am quite sure mistakenly, sought to place them.
The noble Lord asked me three questions. As to the open-ended commitment on the costs of production, this is a firm commitment on the part of Her Majesty's Government backing up Rolls-Royce (1971) in a contract with Lockheed to produce these engines at a price upon which we have agreed. Therefore those engines will be produced. Since the collapse of Rolls-Royce—since the old board asked for a receiver to be appointed—we have carried out a great many investigations into Rolls-Royce including one by the Committee of Three which I set up to inquire into the whole position of the production of the engine and the cost of the development. I think that the

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position now is much more known to us than it was in those days. It is very unlikely—at least, I hope so, but all these things are uncertain—that the estimates that have been made about the cost of production will be greatly exceeded. So, to that extent, there is not an open-ended commitment, but there is a firm undertaking on our part to deliver the engine at that price.
With regard to B.E.A., Lockheed have made no condition in the contract that there should be an undertaking by B.E.A. to buy the TriStar. I have only seen reports that Trans World Airlines have made some such condition. I know nothing of them. With regard to subcontractors, the position is that Rolls-Royce (1971) will be responsible for the sub-contractors. In the case of what happened before the receiver was appointed, the contractors will of course take their place with the other creditors of Rolls-Royce.
LORD BALFOUR OF INCHRYE: My Lords, is my noble friend aware that we on this side of the House should like to add our congratulations to him on what he has achieved? Could my noble friend confirm that the trial engines, which are at present in the prototype, are functioning as well as the reports tell us is the case?
LORD CARRINGTON: My Lords, I am obliged to my noble friend. Yes, indeed. I read a report this morning that the engines were functioning extremely well and that Lockheeds and the test pilots were very pleased with them.
LORD WYNNE-JONES: My Lords, I am sure that we should all like to congratulate the noble Lord for the vigour and shrewdness with which he has conducted these negotiations. Can he tell us whether on the best technical advice available to him the RB.211 is now going to be the beginning of a new family of aero engines? This, it seems to me, will be of extreme importance for the development of the engine.
LORD CARRINGTON: My Lords, the only thing that I have learned after being four months in charge of this project is not to believe everything that everybody tells me. To the best of my knowledge and belief, this is a new engine, designed on a new principle. It will
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certainly be much quieter than the existing run of engines, and to that extent I believe it has a great future.
LORD SHINWELL: My Lords, in order to inform the noble Lord, Lord Carrington, that I am ready to believe what he tells me, I ask him this question. Would he clarify the position of the £100 million, presumably credit, provided for Rolls-Royce (1971) for the purpose of continuing the production of the engine? Is not the return on this capital provision for Rolls-Royce (1971) dependent upon the financial success of the Lockheed firm? If they fail, is there any possibility of a return of the main part of the capital?
LORD CARRINGTON: My Lords, the noble Lord is quite right. The success of this project depends on the success of this aircraft. From all accounts of those who have flown in it and seen it, this is a very good aircraft indeed. If we can manage to get the airlines to continue their contract with Lockheed which they had under the old Rolls-Royce/Lockheed contract, I do not believe that this aircraft will be anything else than a success. But, of course, there is always in this matter an element of chance. What the Government are trying to do is to weigh up the pros and cons of continuing with the project; the pros and cons of the unemployment which would be created here; the question of British prestige; the question of the failure of Rolls-Royce, and a number of other factors: and to weigh them against the money that will be spent by continuing the development. What we have tried to do, and rightly I think, is to assess all these factors. We have come to the conclusion that if the airlines go ahead with ordering the aircraft, there is a good chance that this will be a successful aircraft and that, on balance, we shall be plus, rather than minus, taken as a total.
LORD PARGITER: My Lords, may I ask the noble Lord whether or not the production will go on prior to the giving by Congress of approval to the American guarantee?
LORD CARRINGTON: My Lords, the development of the RB211 has been going on ever since February when the I receiver went into Rolls-Royce, and this

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will continue. Your Lordships will appreciate that quite a lot of money is spent every week on the development of this engine. It really is to the benefit of not only us, but of Lockheed, who are spending a good deal of money every week on the development of the TriStar itself—the airframe—that there should be a decision one way or the other. It really is urgent that the airlines should make up their minds.
LORD BESWICK: My Lords, I do not think what the noble Lord, Lord Carrington, told me about the position of the sub-contractors can really be said to be satisfactory. If they are not paid in full for the goods that they have supplied to Rolls-Royce Ltd., does it not follow that, to the extent that there is a short-fall, that amount must also be added to the Government's subvention as the true cost of supplying this engine to the American company? Is this really a satisfactory state of affairs? I might add that if I was unfair to the noble and learned Lord who sits on the Woolsack I would withdraw what I said. But I can only rely on what I heard him say in the debate and what I subsequently read, when he said that the rules, the law, in these matters must apply impartially
"as much to directors of world-wide companies as to the trader operating as a sweet and tobacco shop."
THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE): My Lords, in view of the grossly inaccurate reference, which has now been withdrawn, will my noble friend confirm that what I told the House then, and what I repeat now, is that from the point of view of the legality of dishonest trading the same rules apply to the directors of a world-wide company as to the owners of a sweet and tobacco shop. I never said, or implied, or was thought to imply, that there was no difference between Rolls-Royce and a sweet and tobacco shop on the High Street corner.
LORD CARRINGTON: My Lords, I have never hitherto been asked to confirm the legal opinion of a Lord Chancellor, but I willingly do so. With regard to the sub-contractors, as I understand it the position is this. Ever since Rolls-
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Royce went into receivership, the receiver has been paying the sub-contractors. There will now be new contracts between Rolls-Royce (1971) and the sub-contractors. The debts that were not paid hitherto, of course, are in the same category as the other debts of the old Rolls-Royce Company.

GREAT SOUTHERN CEMETERY AND CREMATORIUM COMPANY BILL [H.L.]
Read 3a, and passed, and sent to the Commons.

MOTOR VEHICLES (PASSENGER INSURANCE) BILL
3.0 p.m.
VISCOUNT COLVILLE OF CULROSS: 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.—(Viscount Colville of Culross.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 1 [Cover for liability in respect of passengers to be compulsory]:
THE LORD CHANCELLOR THE LORD CHANCELLOR moved the following Amendment:
Page 1, line 7, at end insert—
"( ) Where after the commencement of this Act a person uses a motor vehicle in circumstances such that under section 201 of the Road Traffic Act 1960 there is required to be in force in relation to his use of it such a policy of insurance or security as is mentioned in subsection (1) of that section, then, if any other person is carried in or upon the vehicle while the user is so using it, any antecedent agreement or understanding between them (whether intended to be legally binding or not) shall be of no effect so far as it purports or might be held—

(a) to negative or restrict any such liability of the user in respect of persons carried in or upon the vehicle as is required by section 203 of that Act to be covered by a policy of insurance; or

(b) to impose any conditions with respect to the enforcement of any such liability of the user;

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and the fact that a person so carried has willingly accepted as his the risk of negligence willingly accepted as his the risk of negligence on the part of the user shall not be treated as negativing any such liability of the user.
For the purposes of this subsection references to a person being carried in or upon a vehicle include references to a person entering or getting on to, or alighting from, the vehicle, and the reference to an antecedent agreement is to one made at any time before the liability arose."
The noble and learned Lord said: The purpose of this Amendment is to redeem a promise I made on Second Reading and to abolish contracting out of the liability which is now compulsory. As I think my noble friend behind me told the House on Second Reading, a recent decision of Mr. Justice Ackner, in a rather peculiar set of circumstances, drew attention to, rather than established, the fact that contracting out of this liability was possible. I do not throw the smallest doubt upon the correctness of the decision, which I specifically endorse. I also think that so long as insurance was not compulsory it was rational and legitimate that people should be allowed to contract out of liability; but now that social policy is to be altered by rendering insurance compulsory, I believe that public policy demands that we should abolish contracting out. For that reason I beg to move.
LORD GARDINER: My noble friends would wish to support this Amendment for the reasons so clearly expressed by the noble and learned Lord the Lord Chancellor.
VISCOUNT COLVILLE OF CULROSS: This matter was discussed on Second Reading. The reasons for it have been outlined again by my noble and learned friend and supported by the noble and learned Lord opposite, so I do not think that I should take up time except to recommend that the Committee should accept this Amendment.
On Question, Amendment agreed to.
Clause 1, as amended, agreed to.
Remaining clause agreed to.
House resumed: Bill reported with the Amendment.

RATING BILL
THE PARLIAMENTARY UNDER-SECRETARY OF STATE, DEPARTMENT OF THE ENVIRONMENT (LORD SANDFORD): My Lords, I beg to move that this Report be now received.
Moved, That the Report be now received.—(Lord Sandford.)
On Question, Motion agreed to.

INDUSTRIAL RELATIONS BILL
3.5 p.m.
LORD DRUMALBYN: My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
Moved, That the House do again resolve itself into Committee.—(Lord Drumalbyn.)
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 8 [Contributions to charity instead of contributions to trade union]:
LORD DELACOURT-SMITH LORD DELACOURT-SMITH moved Amendment No. 68:
Page 7, line 7, leave out ("worker") and insert ("person").
The noble Lord said: Perhaps I may briefly recall to your Lordships that this Amendment was moved from this side of the Committee at the beginning of consideration of Clause 5. When the Committee proceeded to a discussion on it a number of points of detail were raised, and it became clear that it would be for the convenience of the Committee if the Government had an opportunity of considering it. There were points raised about the position of a number of categories of people occupied in industry, share fishermen, people who put themselves forward as self-employed in the construction industry, sub-postmasters and one or two others, and there were questions also put about the position of the members of the Armed Forces who are explicitly excluded from the definition of "worker" that appears in the Bill now before us.
I move the Amendment to this clause at this point in our proceedings because later in this present clause I think this

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point does not arise, or certainly, save in clause 9, we have no Amendments put down on it for some little time, and I should therefore like to ask whether it is convenient to the Government to make any comments on the points which were raised when we discussed Clause 5
THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESHAM): The noble Lord has recalled the very long discussion which we had on Tuesday of last week when we debated in Committee for nearly two hours whether the word "worker" in Clause 5(1) or the word "person" as proposed in the Amendment was the more appropriate. As the noble Lord, Lord Delacourt-Smith, has said, the position of the Armed Forces of the Crown was discussed and we have passed the conclusions of that debate on to the Ministry of Defence. I may say about that matter at this stage, that in general the position is that any member of the Armed Forces of the Crown is able to belong to a trade union but he is restricted in taking part in trade union activities, especially collective bargaining; and of course there is no right to strike, for the obvious reason that this exercise of trade union rights would come into conflict with discipline in the Armed Forces, but he can retain his membership.
We were asked in Committee whether this was an appropriate time to consider reviewing the existing restrictions that apply to members of the Armed Forces who are trade union members or who would like to become trade union members. I think the appropriate thing to do would be to return to this matter on Clause 158. In Clause 158(1) there is a very specific definition of the word "worker". It falls into three categories, on page 118, in paragraphs (a), (b) and (c). In paragraph (c) the Armed Forces of the Crown are specifically exempted. So if noble Lords feel that the members of the Armed Forces should be included, that perhaps would be the appropriate time to discuss an Amendment, when we shall also have completed our discussions with the Ministry of Defence.
The only other point I might add to what the noble Lord, Lord Delacourt-Smith, has asked, is that the position of sub-postmasters was raised and I explained that the crucial relationship in Clause 5 was between the worker and his em-
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ployer, and not between the worker and the trade union, which arises later on—in Clause 63 I think. But the noble Lord told us that there is an element of the income of some sub-postmasters which comes from the Post Office Corporation. Did this amount constitute employment or not? A meeting, I understand, is taking place shortly with the sub-postmasters to discuss this and other points.
LORD LEATHERLAND: May I thank the noble Lord for the Statement he has made about members of Her Majesty's Forces and their right to belong to a trade union. I raised this question at an earlier stage. I sought a declaration as to whether they were entitled to belong to a union. This is quite without reference to any rights that they may have in negotiating as trade unionists. The statement which the Minister has made answers my point. I am satisfied with it. That, of course, does not rule out the possibility of raising it at a later stage of the Bill.
LORD SLATER: I am pleased that the Minister has been able to inform the House that talks are now taking place in regard to the question raised by my noble friend Lord Delacourt-Smith. There are 20,000-odd of these sub-postmasters, some of whom work in a dual capacity, while others just run a sub-post office without any attachments or connections with anything else. The reply we have received is most satisfactory.
LORD SHEPHERD: May I also thank the noble Lord. There has been some criticism on radio, television, and in the Press, about the slow progress of this Bill. There was some special criticism that we spent some two hours discussing whether we should change "worker" to "person". There is a matter of considerable importance behind this, and I am sure that the noble Lord will agree that the two hours spent on it were well spent.
LORD WINDLESHAM: I am grateful for what has been said. I am afraid that we are not through with it yet, because there are further Amendments to change the word "person" to "worker".
LORD DELACOURT-SMITH: I am grateful to the noble Lord for what he has said. So far as the Armed Forces are concerned, we take the point that it would be more orderly and convenient to discuss this matter at Clause 158. Am I right in thinking that there is, without any shadow of doubt, a civil right of members of the Armed Forces to belong to trade unions, even though there is not at the moment under this Bill proposed to be a statutory right? I must press the noble Lord more on the civilian aspect of his answer. It is my recollection—and the Record will show this—that there were other cases which were mentioned. I recollect raising the question of share fishermen—whether or not they were covered as workers by the Bill. There is also the case, to which reference was made, of the substantial number of people in the construction industry who put themselves forward as self-employed persons, and who work under a variety of arrangements in many of which it is fairly clear that when one looks at it as a matter of common sense the relationship with the person who provides the funds upon which they subsist is a person who has towards them an employer/employee type of relationship. The question whether or not they are covered by the Bill and have the rights in respect of trade union membership which are dealt with within this Bill, is an important one. I am conscious of the complexity of the issue in this situation in the construction industry, and I will not press the noble Lord unduly upon it if he finds it more convenient to reply to the point about the construction industry at a later time.
With regard to sub-postmasters, when I first raised the question there seemed to be a disposition to treat it as though it was something I was raising because I could not think of anything better to talk about. Examination has shown that there is a point of substance here. I am not clear what it is that is now being discussed between the sub-postmasters and the Post Office Corporation. Those are the bodies, are they not?
LORD WINDLESHAM: No. I understand that discussions are taking place with the Department of Employment to discuss with the sub-postmasters, or representatives of the sub-postmasters, the nature of the payments received from
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the Post Office Corporation and whether or not it could be argued that these amount to a relationship of employer/employee.
LORD DELACOURT-SMITH: It is accepted that there is an element of doubt upon this.
LORD WINDLESHAM: Not necessarily an element of doubt. The sub-postmasters feel that there are representations they would wish to put forward and my right honourable friend the Secretary of State naturally wishes to consider these.
LORD DELACOURT-SMITH: Does that mean that nobody at this moment can say one way or the other whether they are covered by the Bill before us? Do I understand that nobody at the moment can say or advise with certainty?
LORD WINDLESHAM: We should be able to give a much better answer to that question after the meeting has taken place.
LORD DELACOURT-SMITH: I am merely saying at this moment that nobody would care to say with certainty what the position is. We are not anxious to pursue this point at this stage. We have demonstrated that there are cases of doubt; that there are cases of considerable complexity. I have still left over the question of the construction industry, to which perhaps the noble Lord will reply. Reference was also made to policemen. What we have already established by the exchanges last Monday and to-day suggests that there is field for legitimate doubt about the adequacy of the terminology at present in the Bill.
3.17 p.m.
LORD SHINWELL: The noble Lord. Lord Windlesham, will no doubt recall that, during our rather prolonged debate on the clause in which it was suggested that "person" might be substituted for "worker", I suggested that we might compromise by substituting the word "employee". He has directed the attention of noble Lords to the definition clause, and in particular to page 118, which defines a worker as a person who engages in a contract for work, for employment. If the noble Lord looks at another part of Clause 158 he will find

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at line 30, on page 115, the word "employee". It states:
"'employee' means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment"
That is precisely the same language. The definition with which we are concerned applies in Clause 118 to a worker, but also applies, in similar terms, to an employee.
If the noble Lord refers to the pages of the OFFICIAL REPORT, he will discover that that was a suggestion I ventured to make in order to effect something in the nature of a compromise. Otherwise the language appears to be redundant. The term "worker" is used. It means, to be precise, a person, individual or employee who engages to contract for employment with an employer. The term "employee" on line 30 of page 115 describes the matter in similar terms. Would my suggestion not be advisable, in order to remove any possibility of misunderstanding—because a matter of this kind might have to be interpreted by the legal gentlemen, the Industrial Court, or whoever it may be—if a dispute should arise? Therefore, it might be better to use the term "employee", which everybody understands and about which there can be no misunderstanding whatever.
LORD WINDLESHAM: The first point which the noble Lord, Lord Delacourt-Smith, put was about the Armed Forces of the Crown. He asked: Is there a civil right, if not a statutory right? Well, we enter deep water, because of course many civil rights are given by Statute. The answer is that the Armed Forces of the Crown would be excluded under this Bill if it became law unamended; and there is no actionable right (let us use that term) at present because there is no one against whom a Serviceman could enforce it. So he has no right which is enforceable in a court of law. The noble Lord asked also about workers outside the Armed Services, and in particular those in the construction industry. I understand that labour-only self-employed sub-contractors are included in the definition "worker" in paragraph (b) of the definition of "worker" on page 118.
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The answer to the noble Lord, Lord Shinwell, is that the definition of "employee" a little earlier, two pages or so back, is not the same as "worker"; it covers paragraph (a) but not paragraphs (b) or (c) which are dealing with the person who performs "personally any work or services for another party"—the labour only sub-contractor is an example; and office holders, civil servants (the reference is to Armed Forces of the Crown) and so on, who are covered by paragraph (c). What we are talking about here is interpretation. The word "worker" is very clearly defined. It is spelt out in the interpretation clause. But of course when a new Bill goes on the Statute Book with such far-reaching implications as this, there are cases of interpretation. It is quite right and quite proper that these cases should be investigated. The noble Lord has raised one good example of the sub-postmasters, who are in this rather unusual position of being in the main self-employed people but in some cases receiving part of their income from the Post Office Corporation. That is what will arise in the future. I do not think there is any doubt in the Bill. What will have to be resolved is the meaning of these words applied to a whole range of activities once the Bill becomes law.
LORD DELACOURT-SMITH: I do not propose to pursue this matter further at this stage. I think noble Lords on this side remain of the opinion that the wider term which we propose has merit. As we see it, there can be no exclusions under it. Of course, it is no argument against it to say, as one noble Lord did—I think the noble and learned Lord who sits on the Woolsack—that this would open rights which might theoretically be enforced by people who clearly would have no intention of enforcing them and have no one against whom they could enforce them; which is surely a better situation than having people who in common sense thought they had the right but who by the wording of the Statute may be deprived of it.
LORD WINDLESHAM: I am sorry to interrupt the noble Lord but he is on the central point here: that "worker" implies that there is a relationship with an employer. The word "worker" is used in Clause 5 in that very specific way. So we are not speaking about a general

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liberty to join a trade union; we are talking about an actionable right with a remedy attached. If there is to be a remedy there must be somebody against whom the right can be enforced if it is breached. Therefore, the existence of an employer is crucial.
LORD DELACOURT-SMITH: It appears to me that if there is nobody who can in any way impede a person in exercising a right, there can be no person against whom the right can be enforced. This does not very much matter. It is much less serious to have categories of individuals who theoretically have a right, even though there is nobody against whom they would ever wish to enforce it, than to have people who are in fact and in common sense their employers but who, because of the wording of the Statute, are precluded from enforcing the right.
However, as I was about to say, in a sense the Government have recognised this because by the terms of the third subsection of Clause 158 they have given themselves a certain latitude in respect of office holders to bring people in by Order. We on our side can let the matter rest where it is at the moment. We should still like the Government to look at the wording in this provision to make sure that there is no way in which people who might wish to enforce a right will in fact be debarred from enforcing it by the wording of the Statute. As one of my noble friends said, we may wish to return to this matter on some later clause or at a later stage of the Bill. Having said that, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.26 p.m.
LORD BEAUMONT OF WHITLEY LORD BEAUMONT OF WHITLEY moved Amendment No. 69:
Page 7, line 17, leave out from ("charity") to end of line 18.
The noble Lord said: I rise to move Amendment No. 69 standing in the name of my noble friends and myself. With this, it would perhaps be to the convenience of the Committee to discuss Amendments Nos. 70 and 72. This clause says that in an agency shop agreement a worker who
"objects on grounds of conscience both to being a member of a trade union and to paying contributions to a trade union in lieu
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of membership of it, may propose to the trade union that, instead of paying such contributions, he should agree to pay equivalent contributions to a charity to be determined by agreement between him and the trade union."
The purpose of these Amendments is to make the designation of the charity to which such money is to be paid a matter for the worker alone and not for the trade union. The purpose of this is not to say that it is no business of the trade union—I think that to a certain extent it is—but a great deal of procedure has been put into this Bill which might be left out, and this is one of the most obvious bits. It is a complicated Bill with complicated procedures and many laws, tribunals and appeals dealt with in it, and I should have thought that without much loss we could get rid of this particular point.
It seems to me that in the first place it may lead to friction—and that is something we do not want. I remember one noble Lord on the Opposition Front Bench speaking about the friction which would arise if the ordinary trade union dues collector had also to collect dues from a man in an agency shop, who was not a member of the trade union but had to pay money to the trade union. I think that friction may be caused where they both have to agree upon which charity the money shall go to; and if someone was feeling a bit bloody-minded on either side—and in such a situation it would be surprising if there were not someone feeling a bit bloody-minded on either side, if not on both sides—there could be even more friction. There is a method of deciding this: there are appeal clauses, but that seems to me to be taking a sledgehammer to crack a nut.
The trade unions, obviously, may feel they have a slight claim to have a say. If you are a member of a trade union you pay to the trade union; if you are not a member of a trade union and in an agency shop choose not to be, you have to pay to the trade union; and that is right. Even though we have been told that trade unions may not wish to accept this money, nevertheless it is right that people should have to pay for the services they get from the trade union. But where it is laid down by the law—rightly or wrongly laid down—that the money should go to charity and not to the trade union, it seems to me that so

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long as it goes to a registered charity it cannot go to the workers' own particular purpose. That is laid down towards the end of the clause, and the laws on charity are already drawn very tightly. So long as it goes to a registered charity it really it not worth our while keeping this arrangement whereby it has to be agreed with the trade union, especially bearing in mind the number of difficulties and the amount of friction involved in the extra bit of machinery that we are setting up. If there is a chance to simplify the Bill, let us take it. I beg to move.
LORD SHINWELL: With the greatest respect to the noble Lord, Lord Beaumont, in my judgment this Amendment "takes the biscuit". In fact it takes a whole factory of biscuits. I understood that it was the desire of the members of the Liberal Party in your Lordships' House to improve this Bill and certainly not in any fashion to weaken the power and authority and prestige of the trade union movement. The Liberal Party are always talking about the need for co-operation and conciliation. Here is an example of how to disrupt and weaken the authority and prestige of the trade union movement. Let me explain how I interpret this Amendment, and I shall read out the clause, because, quite frankly, it was difficult to follow the noble Lord, Lord Beaumont, in his attempt to explain the Amendment. It reads as follows:
"may propose to the trade union that, instead of paying such contributions, he should agree to pay equivalent contributions to a charity to be determined by agreement between him and the trade union."
The latter part gives the right to the trade union, deprived of the contributions, to a say as to the nature of the charity to which the contribution should be made.
Let us understand what this is all about. A person, a worker, an individual, an employee—however you care to define him—working on the shop floor, refuses to join a trade union. He is not expected to be a member; he can contract out. That is part of the proposal. I am not arguing the merits or demerits of the proposal for the moment, but the trade union having provided by collective bargaining and collective effort an improvement for every person working on the shop floor, whether he is a mem-
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ber of the union or not, is deprived of his contribution. According to this Amendment proposed by the Liberal Party, the trade union would not only be deprived of the contribution and of the membership of this particular person (or persons, as the case may be) but also would have no say as to the nature of the charity which is to receive the contribution. Is that not just asking too much? Indeed I regard it as an insult to the trade union concerned, and to the general body of workers on any particular shop floor.
They have to work alongside a person who is a non-union person, and they may dislike it, for one reason or another. I shall not enter into the merits or demerits of their sentiments for the moment, but over and above that when a person who is a non-unionist works on the shop floor and gains benefits derived from collective bargaining it is quite wrong that the trade union should have no further say in who should receive the contribution. I hope the Government will not accept this Amendment. I have not consulted with my noble friends on the Front Bench but it seems to me that they must resist this Amendment with all the power and strength at their command.
BARONESS GAITSKELL: I should like to support my noble friend Lord Shinwell, particularly as I regard this business, except on absolutely conscience grounds, of paying into a charity instead of paying into a trade union as being an absolutely ridiculous idea. It seems to me to be a real incitement to charities to try to persuade workers not to join a trade union. I can foresee that in the future charities may not get young people to go on long walks but may try to round up employees and simply persuade them not to join a trade union.
LORD BROWN: I am against this Amendment but it has one merit. As the Bill stands, the trade union and the worker have to agree. There may be a factory in which 200 or 300 people are making in-lieu payments to charities and in each case, presumably, there will have to be 200 agreements between the trade union and the workers as to which charity should receive each particular in-lieu payment. There may be differences in every case. The amounts are not very large, so that it has that as a

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merit. However, I am against the Amendment on the ground that the worker is getting services from the union which are otherwise free, and it is for the union to decide to which charity the money should be paid. I would ask the Government to consider placing in the hands of the trade union alone the right to decide which charity should receive the money. That might be done at the Report stage. It would simplify administration, because the sum would be paid over to the trade union, I hope, by the employer and there would be no argument. These are delicate issues in many factories, and the less argument there is about them the better.
3.39 p.m.
LORD CONESFORD: Although I think it is possible to exaggerate the importance of this Amendment, I should have thought there was a great deal to be said for the view put forward by the noble Lord, Lord Beaumont of Whitley. The noble Baroness, Lady Gaitskell, said that she considered this whole business of the conscientious objectors and payments to charities to be a lot of nonsense. That is a view for which I have great respect, but it is not raised by this Amendment. For the purposes of this Amendment we have to assume that there is going to be provision for the conscientious objector and there is going to be a payment to charity. The question therefore remains: what is the simple way of deciding? The proposal made by the noble Lord, Lord Brown, at least has the merit of simplicity, as has the Amendment now before the Committee. Either of them would decide the matter one way or the other. But let us see how the Bill as drafted leaves it. In the end, the matter would have to be determined by the tribunal. I should have thought that every charity, as defined in subsection (3) of Clause 8, is a perfectly respectable body; and the point is, on what principles would the tribunal decide? I think there is a great deal to be said for a perfectly simple way of deciding. Of the two simple ways, shall the conscientious objector decide, or shall the trade union decide?—and I agree that those are both simple and workable—I think that the proposal of the noble Lord, Lord Beaumont, has the greater merit.
I can fully understand the trade union wishing to contest the fact that the man
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is a genuine conscientious objector. Then, of course, that matter would have to go to the tribunal. But why on earth should not the man himself choose the charity to which his contribution is to go, if it is decided that he is a conscientious objector? I should have thought that, on the grounds of simplicity and avoiding unnecessary disputes there was a lot to be said for the Amendment put forward by the noble Lord, Lord Beaumont. I do not think the objection of the noble Baroness, Lady Gaitskell, to the whole clause, which I appreciate, really has anything to do with the merits of this Amendment. It seems to me that we want something simple and workable. I cannot see that anybody would suffer appreciably if this Amendment were accepted. Nor do I think the prestige of the trade union would in any way be affected if, provided that the man was a genuine conscientious objector, he himself chose the charity.
LORD LEATHERLAND: I feel that if the trade union is to be deprived of a voice here in determining the kind of charity that should benefit from conscientious objectors' contributions, we shall be letting ourselves in for a lot of extra trouble on the shop floor. The noble Lord, Lord Conesford, says that in the last resort the industrial tribunal may hive to settle cases such as this. I feel that the industrial tribunal will have quite enough cases to settle arising out of direct, vigorous conflicts on the factory floor without adding the burden of this kind of dispute. Let us imagine that I work in a factory which produces perambulators, that I am a conscientious objector to paying trade union contributions, that the union is not going to have any voice in the kind of charity to which I contribute, and that I say to the shop steward, "I am going to give my money to a family planning association". That hardly seems reasonable, does it? For I am cutting away the jobs from under my fellow workers' feet; and if we come down to the basic point, the conscientious objector who is contracting out so that he can give his money to charity, is going to benefit from the vigorous trade union activity that will take place and which will involve all the rest of the workers in that shop.
LORD SHINWELL: May I ask my noble friend to take note that it is not

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going to be confined to the trade union. The language of the clause is,
"… to be determined by agreement between him …
that is the objector
… and the trade union".
So he is going to have a voice in it along with the trade union.
LORD LEATHERLAND: Yes, but this particular Amendment would cut out the trade union voice from determining the nature of the charity to which the contribution would be made. As I say, the whole of the worker/employer relations on the shop floor are conducted between the employer and the trade union, and it is distinctly unfair to the trade union to deprive it of a voice in connection with this particular matter.
LORD BROCKWAY: I do not propose to follow the discussion started by the noble Lord, Lord Conesford, and carried on by my noble friend, about conscientious objectors. We have already discussed that matter. This Amendment goes much further than the conscientious objector. It refers to any worker who on any grounds determines that he will not be a member of a trade union. As the noble Lord, Lord Shinwell, has said, the trade unions obtain better conditions for all the workers; that applies to the non-union member as well as the union member. Surely, in the case of a worker who declines to be a member of a trade union, it is legitimate that there should be a discussion with the trade union which has gained for him all those advantages. On those grounds, with some regret—because I have some sympathy with the Liberal Party in its defence of the individual—I am opposed to this Amendment. May I just add that the Amendment refers to registered charities. At the present time Her Majesty's Government are seeking to restrict the number of registered charities, even declining registrations which were previously received. I would ask Her Majesty's Government in connection with these provisions to take a much more liberal view of the view of the charities which the trade unions and the individuals concerned might be able to consider.
LORD DONALDSON OF KINGS-BRIDGE: I find it difficult to differ from
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such elder statesmen as my noble friends Lord Shinwell and Lord Brockway, but I think a tremendous fuss is being made about nothing. It seems to me that once you agree—and many noble Lords on this side do not agree—that it is legitimate to contract out of being a trade unionist by payment on conscientious grounds to a charity, I cannot see why the trade union should wish to nominate that charity or have any hand in it. It seems to me that the individual is paying his blood money; he is paying the money for the work the trade union does. I think it is absolutely right that he should, but I see no point in confusing the issue by having a tremendous conference with two or three secretaries of trade unions to decide which of 150 charities he gives the money to. My own view is that so long as the money goes to the charity let the men paying it decide to which charity. I do not think this is a matter of tremendous importance, but that it is important that noble Lords who bring forward such interesting Amendments to the Bill should, where possible, be supported.
LORD SAINSBURY: I should like to seek guidance on the word "charity". I understood that there were two types of registered charity: the ordinary straightforward charity and educational charities. I can conceive that educational charities might take, for example, an extreme laissez faire interpretation of history and be critical of the role of the trade union. Therefore, I should have thought that the trade unions had a right to have a say as to which educational charity this conscience money went.
THE EARL OF DUDLEY: I want to make only a very brief intervention. Noble Lords on both sides of the Committee are talking as if this were something new. In fact there are already a number of closed shop agreements in industry under which contributions to charities are made by persons who are allowed to contract out on grounds of conscience. There is a reference to this in Professor McCarthy's book on the closed shop. I think it might be helpful to have information as to whether there is consultation or agreement between the parties on this matter at the present time.
3.50 p.m.
BARONESS WHITE: In dealing with this Amendment, I should make it clear that we on this side have certain doubts about the whole purpose of this clause. These doubts arise from the fact—and I say this with great respect to my noble friend Lord Brown—that we have no expectation that there will be large numbers of persons who will qualify as genuine conscientious objectors, in the sense in which we discussed them earlier. My noble friend Lord Brown mentioned the possibility of as many as 200 in one establishment, but I cannot go with him at all on that.
LORD BROWN: Two hundred in a firm which employs 40,000 is not a very large proportion.
BARONESS WHITE: With great respect to my noble friend, that would mean 200 persons who were Plymouth Brethren, Jehovah's Witnesses, or something of that nature. I should have thought it was highly improbable—unless one had a remarkable concentration in one neighbourhood—that there would be such a large number in one establishment. But we can discuss that point more advantageously on the Question, Whether Clause 8 shall stand part of the Bill?
We really do not feel disposed to go along with the noble Lord, Lord Beaumont of Whitley, in his Amendment. I think the noble Lord, Lord Conesford, was quite right in saying that one can take either one simple method or the other simple method. He inclined towards the Liberals' views, but if there are to be such payments at all we incline towards the other simple method. It is quite true that there is room in the Bill for endless friction, discussion, dispute and, finally, the cumbrous procedure of having to refer the lack of agreement to the industrial tribunal, and I should have thought that, on reflection, the Government might very well agree that it would be desirable not to have that situation if it can be avoided. In our view, if we are to avoid such an appeal to the law, with discussions before the tribunal and a decision passed down by it, then one must decide whether the matter is to he left entirely to the discretion of the individual or left to the straightforward decision of the trade union. In each case, the payment would be to charity after agree-
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ment by all that the person was a genuine conscientious objector.
Let us consider the circumstances in which these payments are to be made. They are to be made because a man does not wish to join a trade union. If they were simply contributions to a charity of his own choice, then he could pay them out of his ordinary income. It is of no concern to us whether he wants to support cats, budgerigars or educational or religious charities, because that is part of his own private life. What we are talking about is not a purely private matter: it is basically, an industrial matter, between himself and the union which, for conscientious reasons, he does not wish to join. I should have thought that in that kind of relationship it is the union that should receive the money from the person. After all, the appropriate amount of money will be decided according to the contribution which the man or woman would have made, as we discussed last week. Also, it is very important that the union should have records of the persons who are paying to charity as conscientious objectors. It would be very much better, and at least as simple, if the money were paid to the trade union, and in due course the union would account for those contributions as having been paid not into union funds but to a charity. No doubt they would have to produce receipts, and so on, in the normal and appropriate way.
We consider that this whole clause should be looked at again, and, if it is to stand at all (we have not put down an Amendment, but we shall if necessary be able to do so at a later stage), then the suggestion originally made by my noble friend Lord Brown, that the money should be paid to a trade union, which should pay it to a charity, is the more desirable course.
LORD CONESFORD: May I point out to the noble Baroness, whose treatment of the argument I appreciate, that there is a difficulty in her suggestion of adopting the proposal of the noble Lord, Lord Brown? As she herself pointed out, charities differ very much in their aims, and I do not suppose that any single person approves of all charities. It would be a little difficult, would it not, to compel a conscientious objector to give his contribution to a charity of

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which he might disapprove on conscientious grounds? That is why I suggest that the real alternatives must be between what the Government now propose under the clause and what the noble Lord, Lord Beaumont of Whitley, proposes in his Amendment.
LORD COOPER OF STOCKTON HEATH: May we get this matter into perspective? First of all, the number of people who will exercise their right under this clause is minimal. There is another law similar to this which affects trade unions: I refer to the law relating to the political levy. When the appropriate Act was introduced, everybody provided, very brilliantly, for contracting out; but you can count on your fingers the number of people who contract out. It is one of the peculiarities of democracy. On paper you can give people opportunities to do what seems right, but it is too much trouble for them to do anything. The only difference between this Bill and the law relating to the political levy is that, instead of our having to get hundreds of thousands of signatures agreeing to contract in, we shall have to get a few people to contract out. We shall not need big rooms to store records of people who contract out of the political levy, because they are very few in number and, in spite of endeavours to increase them, the numbers, do not increase. That is why I feel confident in speaking as I have done, and I should not have said that if I thought it would increase the numbers.
The Government have introduced an interesting principle about the right to choose whether or not to join a union. Forgetting the merits of the right not to join, with which I do not agree, there have now been created three types of trade union membership: the chap who is willing to join; the chap who is unwilling to join but is prepared to pay an adjusted contribution, and the chap who is a conscientious objector, perhaps not on anti-trade union grounds. It is now said that the last type will be dealt with on a charity basis, but once a person has to pay he will not bother about the charity or about anything else. Resistance to payment for services rendered is the basis of non-unionism in this country. I am sorry that the Liberal
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Party have moved this Amendment, because it is the old approach of absolutism which is inappropriate both in society and in trade unions. In making these special arrangements, the Government are compelling the second category of individual to accept collective responsibility. The Government are saying that you need not enjoy the fruits of cash benefits from a trade union, but you will enjoy the fruits of the negotiations and you will pay for them.
I ask your Lordships to imagine a workplace of 5,000 people, where there are rules and collective obligations—because this is the way it works; this is the way the employers want it to work, and this is the way the trade unions will have to work it: on a basis of collective responsibility. Therefore, while the man who feels that he has good conscientious grounds for saying he ought not to pay has a right to those opinions, the people who are working with him, who have created the collective situation, the situation from which he benefits, equally have certain rights.
LORD BYERS: If the noble Lord would permit me to interrupt him, may I say that this is really not the point of the Amendment. I should like to make it absolutely clear that what the noble Lord is dealing with now are the grounds for conscientious objection. These arise only when the conscientious objector has been proved to have a conscientious objection. All we are trying to do is to simplify the working of the Bill. There is no question of absolutism: we just think it would be much easier.
LORD COOPER OF STOCKTON HEATH: The Bill lays down, as to the treatment of the objector, that he shall pay to a charity, and all we are arguing about is: who decides to which charity the money shall go? The objector could choose the charity. The most charitable people in the country probably are the working people, when you get to know them, and I would find it difficult to think of a charity at this moment to which working-class people would object; but there could possibly be some offensive ones, and the objector could be a difficult character who might easily cause trouble in the workshop. I think the basic principle is the one which relates to the second category; that is, you have

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got to pay. You are entitled to the privileges of freedom, you are entitled to your conscientious objection, but in the last resort you have got to pay; and in the paying I think the trade unions, who are creating the very thing for which you are paying, should have some say in who you pay the money to.
4.2 p.m.
LORD WINDLESHAM: These Amendments would, as the noble Lord, Lord Beaumont of Whitley, explained clearly at the beginning of the debate, prevent a trade union being able to challenge the conscientious objector's decision as to which charity should benefit from the financial contribution he makes in lieu of membership; and although the trade union would have to accept the conscientious objector's right to opt out of union membership and therefore lose his financial contribution towards the union's bargaining services from which he would benefit, the Amendments would not allow the union any say on the matter of which charity the contributions should be paid to—and the Government consider it reasonable that the union should have some say. Only in an extremely small number of cases is there likely to be any dispute as to which charity a contribution should be paid. The noble Earl, Lord Dudley, reminded us that under a number of existing closed shop agreements there are provisions of this sort already where the conscientious objector, the unions and the employers have jointly agreed on the charity to which payments should be made; and we think that in most cases there will be agreement. But in the interests of good and orderly relations in the workplace, which is what this Bill is trying to achieve, it is obviously preferable that there should be voluntary agreement. But in those cases—and there will be a few cases, I hope and believe—where the union and the worker cannot agree on the charity to which the contribution should be paid, it seems better for peaceful co-existence if the problem could be taken out of the workplace, where it would only serve to poison the relationship on the shop floor, and be determined by an independent third party, in this case the industrial tribunal.
In the course of this debate we have heard the extremes of view, in a sense. This is not a major issue, of course, but there are diametrically opposed views on
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this point. There are those who, like the noble Lord, Lord Conesford, feel that it would be better if the individual who exercises his right not to be a member could determine for himself the charity to which the payment is made. On the other hand, there are those—Lord Shinwell, Lord Leatherland and Baroness White—who feel that it would really be a better system to leave it to the union, for them to decide on the charity. What the Government are doing here is to reconcile these two conflicting interests. We accept that both the union and the individual have an interest here. The noble Lord, Lord Brown, told us quite clearly why the union have an interest: because they are negotiating wage increases and other matters which benefit all employees, whether they are conscientious objectors or not. Therefore, to that extent the union have a legitimate interest. And the noble Lord, Lord Beaumont, told us why he regarded this as being within the sphere of decision of the individual. So this is a reconciliation, and I believe a reasonable one, between these two conflicting forces.
I was asked by the noble Lord, Lord Brockway (whose interest in this matter is well known) and Lord Sainsbury about charities, and how the charity would be selected; what would amount to a charity for the purposes of this clause of the Bill. Noble Lords will see that in the Bill there is a rather tautologous statement which says:
"In this Part of this Act 'charity' means any institution or other organisation established for charitable purposes …"
In order to help noble Lords and the Committee, I have looked further into what "charitable purposes" means, and I find that there is—
LORD CONESFORD: My noble friend left out the important word, "only".
LORD WINDLESHAM: I beg my noble friend's pardon: that should be added, certainly. I find that there is no statutory definition of "charitable purposes". It is for the High Court to decide in the last resort what purposes are or are not charitable; but in practice the Charity Commissioners, and in certain cases the Department of Education and Science, consider applications from bodies which seek to be placed on a register, and in doing so they investigate the purposes for which the charity was

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set up they examine its constitution and they consider whether or not these purposes are likely to be regarded as charitable in the light of a very substantial body of case law going back, I believe, to the year 1601. I do not think I need deal more fully with this point (although I am equipped to) other than to say that this applies to England and Wales only, and that the position in Scotland is different.
BARONESS WHITE: Before we leave this point, could the noble Lord perhaps elucidate this a little further? What will be the terms of reference of the industrial tribunal in these circumstances? Is it going to be a purely arbitrary choice, with the members of the industrial tribunal just picking their own favoured charity, or will they have to choose between two conflicting proposals which may be put before them? It seems to us that, on practical grounds, there may well be a good deal of friction on a thing of this kind; and it seems a little difficult to know what the principles will be on which the industrial tribunal will be required to make its determination. This was one reason which inclined us to the simpler proposition that really in all these circumstances it would be much easier if the trade union were given discretion. Perhaps I may also ask the noble Lord—he tells us that he is well armed—whether a public school would come within the definition of "charitable purposes only", because that is the kind of thing which might lead to certain discussion on the shop floor.
LORD WINDLESHAM: The purpose of looking to the industrial tribunal in this particular case is to try to bring the parties together, and we hope that this will happen, as the noble Lord, Lord Cooper, said, very seldom. He told us that in his experience—and we should pay attention to it—there will be very few conscientious objectors anyway, because there will be a larger group of people, presumably, who will accept that they should pay an appropriate contribution to the union itself. Although they are not members, they will pay the contribution, so the number who will exercise this particular right to object will be small.
The industrial tribunals have been selected because they are already in existence. They have been rather suc-
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cessful; they are somewhat informal, not requiring lawyers to appear before them; the individual may sometimes be represented by a trade union member if he wishes. Many noble Lords are familiar with them from first-hand experience. They have had many cases of industrial training, of redundancy, of selective employment repayments, and so on. They try to get the parties to agree. It will be remembered that this dispute will not reach the industrial tribunal until the individual and the union have already failed to agree. On the question of whether or not a charity would be regarded as a suitable one, or whether a public school would be regarded as a charity, that will really turn on the purposes and the constitution of the charity or institution in question. I think it is very unlikely that that will arise.
The question upon which the noble Lords have not really touched, but which I think is really the true one, is: will the union benevolent funds benefit? I do not think it is a question of distressed gentlefolk or of public schools, which would tend to be included in closed agreements. Whether or not an institution is recognised to be charitable is in the last resort a matter for the High Court but in the first resort it is a matter for the Commissioners to see whether conditions for registration are fulfilled or not.
LORD SLATER: The noble Lord did make reference to the two sides, the trade union and the conscientious objector, having to agree on the contribution. But has thought been given to the time factor involved? No doubt the noble Lord will remember that I cited a particular instance: in so far as the trade unions are concerned, if it goes beyond a certain period of time the individual becomes out of financial commitment, and therefore is not due for any form of benefit; he cannot get the benefit because he has become a non-financial member. What is the time factor here between the two parties, in determining what the charity should be to which his contribution should go? Is it to be two, three, or four months, and then passed on to the Industrial Court for a decision upon it? If that could be clarified we should know where we were; but at the moment I am at a loss to know where we stand if the contribution is to go to a charity on agreement between the two parties,

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because they have to carry out a form of negotiation.
LORD BROWN: This is an extremely trivial issue. I am with Lord Conesford and the noble Lords here. This rag-end should not he left lying about; it may cause a great deal more trouble. The Minister has made a long speech envisaging the industrial tribunal and even the High Court being brought in on an issue which, I should say, will involve a very small number of people. It seems unnecessary to envisage all this happening over such a trivial thing. I wish to see the unions make the decision, but if the Government are not prepared to accept that, then I would go along with the Liberal amendment and make the workman decide. But the decision should not to be left between the two, so that the opportunity is open—even if only a trivial number of people is involved—for legal proceedings. It would be a terrible thing to do that for such a trivial issue.
LORD WINDLESHAM: It is all very well announcing that that is not the way to do it. The Government have given a great deal of thought to this and have tried to pay careful attention to both points of view. They have come to the conclusion that both the individual worker and the union have a legitimate interest in practice. My feeling is that the voice of the noble Lord, Lord Cooper, is the one to which we should listen here. People are prepared to be firm, and they are prepared to be reasonable. They are prepared to agree upon what should be a suitable charity without going through a long procedure with the industrial tribunal, and so on. But if there is the one case in a thousand where people cannot agree, there really must be some way of resolving the difference. That is what this part of the Bill does.
The time factor is not really within the control of the industrial tribunal. If the individual will not agree with the union and is prevaricating—he is playing for time—we must remember that he is then in breach of contract with his employer, in an agency shop situation. Under Clause 10 the employer has agreed with the union that all his employees in a particular unit of employment will either be members of the union or will make an appropriate contribution in lieu of union membership. That may be by way of
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a payment to the union funds or it may be—in the small number of cases we have been discussing—a payment to charity. He has agreed upon that with the union and furthermore he has agreed that it will be an explicit term and condition of employment with each individual workman that he will either join the union or make an appropriate payment in lieu. Therefore, if the individual prevaricating and has not done either of those two things, he is in breach of contract of employment, and it is through that avenue that the matter may be pursued.
LORD BYERS: It is surprising what difficulties one can get into by trying to be helpful. I do not think that the noble Lord, Lord Shinwell, was in any way justified in the outburst he made. He got it right in one part of his speech when he said that he thought that it was the aim of the Liberals to improve the Bill and not to weaken the prestige and power of the trade unions. That is exactly our situation, but I thought the outburst revealing when he went on to say that an example of how to disrupt and weaken the authority of the trade union movement was to deprive the trade union movement of the right to have a say in the vital policy decision as to where these contributions should go. That is giving this particular Amendment an importance it does not deserve. The noble Lord, Lord Brown, is quite right. We looked at this procedure and thought that it was a very heavy one and that it would be much easier, in the very few cases there would be, for someone to make the decision, and that that decision should be made by the man who has to pay the contribution to the charity.
However, that was an effort at simplification. We should be quite prepared to look at the other proposition: it might well be better—although we think it is marginally worse, on the face of it—that the union should make the decision. But it seems fantastic to consider the effort that might be involved over one of these cases going to appeal and so on, when in fact it could be decided by the worker or the union. We should be prepared to withdraw this Amendment and look at it from that point of view. I assure the House that this was merely an attempt to simplify what we consider to be very unwieldy procedure.
LORD SHINWELL: If the noble Lord, Lord Byers, imagines that my moderate observations may be described as an "outburst" he has not heard anything yet.
LORD BYERS: I listened to the noble Lord for many years in another place and I have known for many years exactly what was going to come. My purpose at the moment is to withdraw the Amendment before the Committee.
Amendment, by leave, withdrawn.
4.20 p.m.
On Question, Whether Clause 8 shall stand part of the Bill?
LORD DELACOURT-SMITH: We have spent some time on an Amendment which has drawn attention to complexities which some noble Lords have suggested might well be proved in the event to be exaggerated. But on considering whether this clause shall stand part of the Bill I want to draw the attention of the Committee to a more fundamental point. It is whether we are wise in leaving in the Bill this provision to deal with the problem of conscience in the way that it stands. Last week I ventured to raise this issue with the Committee and to initiate a preliminary discussion on it—because it is an important issue, from the points of view of both principle and its practical effects. I am bound to say that last week's debate and further consideration of the Hansard
record of it have strengthened my belief that the Government ought to look very much more closely at this issue if they are to avoid real difficulties arising on its operation. I hope that the Government will look closely at this for reasons that I shall try to set out.
I do not want to cover all the ground that I covered last week, but will briefly summarise what I then said. I began by emphasising that nothing that I said, nothing that was said on behalf of my noble friends, ought to be taken as suggesting that we did not attach the greatest importance to the safeguarding of the individual's conscience in all appropriate cases. I pointed out that in general the statutory safeguard for the individual's conscience arose on matters either of great public importance, when a man was making a most solemn declaration on oath or by affirmation, or when it was a question of his embarking on some act
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involving the destruction of a human life which inevitably went to the very foundation of his ethical beliefs and personality. I suggested that, when looked at against such a background, to bring in the consideration of conscience over a matter of joining a trade union involved an appreciable change of scale.
The noble Lord who spoke for the Government on the previous Amendment laid particular emphasis on the speech of my noble friend Lord Cooper of Stockton Heath. I agree entirely with what Lord Cooper said: that this is a situation well known to industry and one which I think nobody would suggest has ever given rise to any real difficulty. The essence of it is that there are individuals belonging to certain religious groupings who have an objection to joining a trade union, or to joining any association of people not entirely of their religious beliefs. I am sure that the experience of my noble friend Lord Cooper is the same as mine: that those very small groups are respected by their workmates, and invariably they have great respect for the trade unions. In many cases, with a little prompting, they will make a donation, not to charity but to the funds of the union, to show their good will. So this is not a problem which, on the face of it, necessarily requires statutory provision. One would think that it might be a question of trying to meet the situation of these folk in some other way which, in the light of experience, would prove as satisfactory—for I think that our debate so far has indicated how very much wider this can go if we start to put it on the basis of a statutory provision.
The right reverend Prelate the Bishop of Blackburn—and I refer to him with some hesitation, for he does not appear to be in his place—is on record as taking the view that it would be possible to have a conscientious objection if the union to which an individual belonged took a particular course in regard to registration under the Bill. The noble Lord, Lord Conesford, made the point that in his view it would be permissible to have a conscientious objection to joining one trade union but not to joining another. He took as an example the conscientious objection that he would feel in circumstances where he was under some pressure to join a union which he regarded as

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being Communist-dominated. If one reflects for a few minutes, one sees that we are going very much wider than the group of people or characters of opinion or difference with which most of us thought we were dealing when we initially looked at this clause. For instance, a difference of opinion over a conscientious objection of the kind to which the right reverend Prelate and Lord Conesford referred might be expressed in an atmosphere far more acrimonious than that in which one is considering a case of what I may call, for purposes of simplicity, the genuine conscientious objector or religious conscientious objector. I am anxious that the Committee should consider very carefully whether we want to put on to the Statue Book words which (if members of the industrial tribunal took the same view as expressed by the right reverend Prelate or the noble Lord) would substantially widen this group of people and, moreover, completely transform the character of this group and its whole relationship with the trade union movement.
I referred to the fact that in other aspects of industrial life there are grounds which I should regard it as permissible to call conscientious, but which, so far as I am aware, do not have statutory protection. I gave the example of a manager of a supermarket who finds suddenly that he is going to sell alcoholic drinks; or a man, a strict pacifist, who finds that the engineering firm in which he works has turned itself over to defiance contracts. I take now another example to which I did not refer earlier and which I think can be used to show that there are individuals who have very strong convictions, even though they do not always refer readily to their consciences to justify them. A few months ago there was an industrial dispute in the electricity supply industry. During the dispute a London newspaper published a cartoon purporting to show an electricity supply worker. I do not wish to elaborate on the cartoon; I believe that it will be in the memory of many. I think that the most sensible thing was done by the electricity supply workers. They invited the cartoonist to meet them to see how far they resembled his caricature. But the putting forward of that cartoon for publication roused very strong feelings on the part of the production workers
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who were required to process it. I make no bones about saying that if I had been one of the workers required, for example, to make the block for that cartoon I should have felt the strongest and most bitter objection to doing so. I should have felt it was a prostitution of my skills as a worker to be required to do that, but not that I was entitled to advance a conscientious objection to doing the work that had been assigned to me.
I give that as an example of so many cases which can arise where as individual might feel intensely upon an issue and could propose, if he were so disposed, to represent it as an issue of conscience; yet we have not thought it right—and so far as I know nobody proposes to think it right—to give statutory protection to that sort of individual conviction. But we are well on the way to giving to strongly held convictions on particular points of trade union policy the status of a right or the status of "conscience" for the purpose of withdrawing from a trade union.
I think that we shall run into difficulties if we do not look at this matter closely. One difficulty we shall run into is a cynical treatment of conscience itself or of the claim to resist an action on grounds of conscience. I do not relish the propect which could arise if we go along the path that we seem to be disposed to take. My noble friend Lord Cooper of Stockton Heath, or I or some other general secretary will be rung up by a branch secretary who says:
"Five of my members are troubled in their consciences about the speech you made last week, or the decision which the conference took, or the article which you wrote for the union journal"
and will go on to say "I am trying to do something about their consciences."
Within a trade union strong differences of opinion do arise: it is quite inevitable. They have to be argued out in a good spirit, and I think we are in danger of complicating the situation greatly if we do no try to confine the operation of this clause in a fairly strict and rigorous manner. Already under the Bill the Government have insisted on conferring a statutory right to be non-unionist. I hope we are not in danger of going further and casting some kind of moral lustre on being a non-unionist. I trust

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that we can examine this matter. I am sure there is a serious point here which merits close examination.
4.32 p.m.
LORD PEARSON: It has been said that some attempts to contribute to this discussion from these Benches would be welcome, and it is for that reason that I venture to make certain suggestions not about matters of general policy or substance but about matters of form and the requisite statutory machinery. It seems to me that these three clauses, Clauses 7, 8 and 9, have certain weaknesses in that respect. A new system— I think it is a brand new system—is being introduced, of workers being allowed under a certain form of proposed agreements, to make contributions in lieu of membership. It is a fairly simple idea, and one would have thought that if the idea were right it ought to be possible to devise suitable, clear-cut statutory machinery for implementing the proposals. It might be a considerable advantage if that could be done, and possibly if it were successful it would have two advantages. One would be to shorten the Bill to some extent. I am sure we should all like, if possible, to shorten and simplify this Bill, even if only by the substitution of one clause for three. Another possible advantage, if it is an advantage—and that is a policy question—would be that at the moment, so far as I understand this clause, everything is left over to be negotiated and agreed
ad hoc in relation to each particular agency shop contract that may be concluded in the future. That will need a good deal of time and may generate a certain amount of friction, whereas if you could have hard and fast, clear-cut statutory machinery for the assessment, collection and payment of these proposed contributions, a good deal of time and friction might be avoided.
The first step—and, I would have thought, not a difficult one—would be to have a statutory formula defining what the amount should be. That does not seem difficult, subject to certain possible qualifications. The basic principle would be that the man who opts for this relief should pay by way of contributions the same sum as he would have paid by way of subscription had he been a member of the union. It may be that some
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deductions are required. One seems to be included at the end of Clause 7(3),
"excluding any such contributions which (subject to his giving any requisite notice) he would not be obliged to pay."
It may be that any optional subscriptions or contributions ought to be left out of account. Otherwise it does seem possible to have a clear definition in the Bill as to what the amount is to be; and that would be an important first step which would not then have to be left to be negotiated for each separate agreement made afterwards.
Then there is a further step. Whether it can be taken or not is a matter of policy, but if it can it would greatly simplify the machinery. If it were possible to authorise or require the employer to deduct from the worker's wages the amount of the particular contributions—. I think it would be for the union to assess what the amount should be in the first instance: but only in the first instance, because there would be some possibility of raising the question afterwards—the rest would follow very easily. The employer, having deducted those sums, would pay them over to the appropriate recipient. The appropriate recipient would normally be the union: but if the worker, for reasons of conscience—and I will say something about that in a moment—claimed that his contribution should not be paid over to the trade union but to some charity named by him, then the next step would be easy and the trade union would either acquiesce in or object to his request. If they acquiesced, the money would be paid over without more ado to the charity named by him. On the other hand, if the union raised an objection and persisted in it, then the dispute would have to go to the industrial tribunal.
In the meantime, the money would have been paid. That is an important point, because as I understand the provisions as they stand in the Bill at present, there is great scope for the astute and not too conscientious worker who may raise some dispute, to spin it out for weeks and months and, in the meantime, not to make any payment. If before the end of that period he chooses to transfer to some other employment, how are you going to get the money out of him? Therefore, I would venture to put forward this idea of firm, hard and fast statutory

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machinery to avoid those disadvantages. If the two steps that I have mentioned can be taken in the sphere of policy, namely, to define in principle what the amount should be; and, secondly, if it is possible to impose upon the employer the burden (if it is not too severe a burden) of collecting the money by deduction from wages, then the rest follows quite simply and easily.
The other point I want to make is that if something is going to depend on the worker's grounds of conscience, it is very important, at any rate from the judicial point of view, to have some definition of 'what is meant by those grounds of conscience. What kind of conscience is it to be? Is it to be religious conscience only? That would be one easy formulation; and, if so, it could be said that that is the only kind of conscience which is admissible. Does it include political conscience; and, if so, how far does it go? It would be very difficult, I think, for the courts, if they did not have any statutory definition to guide them, to know where they are. They would have to make guesses; and if different courts made different guesses, that would not be at all surprising. So I ask: if it is admissible to bring in matters of political conscience, how far will it go? Many examples have been given already, hut there are two that occur to me. First, someone might say that he was not willing to contribute to a union because he reasonably believed that for the moment the union was controlled by people of the Communist persuasion. He might reasonably believe—or, whether reasonably or not, he might genuinely believe—that there might be some outside interference with the affairs of the union. That is one case. Then there is the other case, where a man is a very keen politician; he may be a true blue Conservative politician, and regards his union as supporting the Opposition Party. Even though he may not have to contribute directly to the political levy he may nevertheless think, "If my money goes to this union, the union will be helped, and it will be giving general support to the Opposition Party; and therefore, indirectly, I shall be supporting the Opposition Party and supporting a cause in which I do not believe." I am not for a moment suggesting what the answers to these questions ought to be,
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but I suggest, in fairness to those who ultimately will have to decide what is meant, that some further statutory guidance, by way of definition, ought to be given.
4.43 p.m.
LORD CONESFORD: I think the whole Committee will agree that our debate has been enriched by the contribution of the noble and learned Lord, Lord Pearson, and I am sure that it was universally welcomed. I wish only to give my point of view on this clause. The matter was stated with great fairness by the noble Lord, Lord Delacourt-Smith, and I think it my duty to the Committee to make my view, which is sincerely and very strongly held, equally clear. I am not, of course, disputing for one moment the plea of the noble and learned Lord, Lord Pearson, that there should be more guidance to the tribunals and the court; though I want to say quite clearly that I do not think that the conscientious objection can be limited to religious grounds. I hold strongly, from the parallel of an argument of the noble Lord, Lord Brockway, that it is possible to have a respectable conscientious objection to joining a particular union, and I think it only right to give some indication of why I take this view.
It had not been very important, until we got to these questions of closed shops and so forth, and I know how members on both sides of the Committee desire, very naturally, to avoid discussing clauses in advance. Nevertheless, we all know that there is, later on, a clause for a strict closed shop in which membership of a particular trade union is to be universal, and from which the only escape is this conscientious ground. I ask fair-minded members of the Committee to picture an attempted compulsion of a man to join a particular trade union. I do not think that many would have difficulty of conscience if the union were engaged in ordinary trade disputes. But suppose that the union is under Communist domination—and some trade unions have been, and probably still are, under Communist domination. May I say that in my long interest in Communism and its dangers I have received the greatest assistance from trade union leaders, who have great knowledge of this subject? But what are some of these Communist-dominated trade unions doing? One thing they do

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from time to time is to indulge in political strikes. They may be short strikes, but they are strikes to overrule the will of Parliament—no less. Others are engaged in activities which, in the opinion of those best able to judge, are designed and calculated to bring lasting injury to this country. All these things may be in the mind and experience of a man invited, or told, that he will be compelled to join a particular union if he is to carry on a particular occupation.
LORD PARGITER: I am sure that the noble Lord, Lord Conesford, does not wish to be unfair. A man may carry on his occupation in more than one place. It is a question of his occupation in a particular place; therefore the matter should not be confused. He is not denied the right to carry on his occupation; he may be denied the right to carry it on at a particular establishment.
LORD CONESFORD: I welcome that intervention, which I know is honestly intended. But, of course, it all depends on whether the occupation happens to be in a monopoly. Take a man engaged in the transport industry in London, for example. If he is excluded from one particular union (I am not saying that the particular union concerned is of the type I have just described), if it is the union controlling a monopoly occupation, it could deny a man his livelihood. I say that if we recognise conscientious objection at all—and I believe that the Government are right to do so—that conscientious objection must extend to joining a particular trade union. A man can have such a conscientious objection although he does not subscribe at all to any of those crank sects that prohibit him from joining any body of any sort. I agree with the noble Lord, Lord Delacourt-Smith, that under this clause we are discussing a most important issue; and I want to make it absolutely clear that in my view the conscientious objection must extend to an objection to joining a particular trade union.
4.50 p.m.
LORD SLATER: I am sorry that this clause is part of the Bill. I am also sorry to have had to listen to the speech made about Communists by the noble Lord, Lord Conesford. May I impress on noble Lords that we had, as a national union,
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two General Secretaries who were members of the Communist Party in this country, but they were the most outstanding trade union leaders in this country, and negotiated on behalf of their membership to the best of their ability and arrived at agreement without any trouble inside the industry. It appears therefore that the noble Lord, Lord Conesford, has fallen into the same trap as did some members of his own Party in the other place: that every time they look under the bed they are looking to see whether there is a Communist underneath. That is the unfortunate position so far as people like Lord Conesford are concerned, when we are talking about Communism.
I was delighted to hear the speech made by the noble and learned Lord, Lord Pearson, from the Cross-Benches. It was full of fruit, full of ideas, full of proposals, trying to ease the position so far as the Government were concerned, and suggesting what should be done to improve upon this particular Bill. But the purpose and object of trade unions in this country is like that of a political Party. The purpose and object of a trade union is to try for 100 per cent. membership, if that is at all possible; but it does not always happen in that way. It is true that conscience can be flexible, and people can exercise their conscience in so many ways that they will find an outlet, even if this Bill goes through in its present state. In the same way, the C.B.I. tries to get 100 per cent. membership from industry.
I should like to conclude on this note: the clause talks about charitable causes and charitable organisations. The trade unions in this country have religiously contributed over the years to charitable organisations, whenever it has been possible, from the finances at their disposal, and this will continue. I know that the noble Lord who is in charge of this particular clause has given serious thought to all its aspects, and wishes to be as reasonable as possible. But when we have members who have spent their lifetime within the trade union world, we feel that we must defend its position and its membership, when we have to listen to observations made by certain people up and down this country, who say that, because the stand that a trade union leader may take is not the stand that

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ought to be taken, we ought to be moving in a different direction altogether and trying to give support to the Government when they seek to introduce legislation of the type we have in front of us at the moment. Therefore I support my noble friends, Lord Delacourt-Smith and Lady White, who are in my opinion putting forward very constructive arguments as to why this particular clause should not remain in the Bill. It would be better for everyone if it were deleted from the Bill.
BARONESS GAITSKELL: I am absolutely against this clause, and I think the Bill would be much better without it. I wish to comment on the utterly sincere speech by the noble Lord, Lord Conesford, with which I do not wholly agree, though I sympathise with some of his reasons for making it. But what does the noble Lord, Lord Conesford, suggest is the way of overcoming or changing a trade union where the leadership is completely Communist and may be destructive? We have had leaders who have been Communist and who have changed, and who are great leaders—Les Cannon was one of them, I believe—so the whole subject is very complicated. I believe that there was also a time when the Electrical Trades Union was Communist-dominated. Then there was a movement to get more moderate people to attend the meetings and to vote, and they changed the leadership. The only way for workers to act, in a situation where they feel that the men at the top are not the people they want, is to go to the meetings and vote, and to change the leadership.
I wish to add only one more thing. My noble friend Lord Cooper of Stockton Heath made a very trenchant contribution when he said that this clause deals with three types of worker: the worker who belongs to a trade union; the worker who by this Bill is allowed not to be a member of a trade union, and the worker who has real conscientious objection to belonging to a trade union. These represent three different aspects of the subject, and this Bill really gives a license to print consciences—if noble Lords understand what I mean. Anybody will be able not to join a trade union and, instead, to pay to a charity, and it need not be a case of real con-
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science. I am therefore absolutely against this clause.
THE EARL OF MANSFIELD: The late Henry Ford had a stock reply which he gave to any customer who was rash enough to wish to choose the colour of the Ford car that he proposed to buy. That reply was: You can have a car of any colour you like, provided it is black." This, I suggest, is almost exactly the attitude adopted by the Opposition in regard to this excellent clause. The person who belongs to a particular industry is to be compelled either to join a union or, if he does not join it, to pay the dues to a union, or to have chosen by the trade union the charity to which he will have to pay the equivalent of his dues. That, to my mind, does not exactly amount to liberty. I am in the fullest agreement with the noble and learned Lord, Lord Pearson, in thinking that if there is to be any alteration made to this clause at later stages of the Bill—and some alteration may well be desirable, if not indeed necessary—it should be to widen tile basis of exemption rather than to narrow it, because on the Benches opposite, despite all the suavity of the noble Lord, Lord Delacourt-Smith, there appears to be a pretty grim unanimity in decrying the liberty of the individual. I do not agree with my noble friend Lord Conesford, if I am right in understanding that he would like conscientious objection to be valid only if applied to membership of one particular union—am I mistaken?
LORD CONESFORD: Yes, quite mistaken.
THE EARL OF MANSFIELD: I am glad to hear it.
LORD CONESFORD: The conscientious objection mentioned in the clause can be to joining a particular trade union.
THE EARL OF MANSFIELD: I am grateful to my noble friend. There should also be grounds rather wider than religious grounds, although the religious grounds themselves are very important. At earlier stages of this Bill the case was mentioned of the Closed Brethren, who are fairly numerous in the North-East of Scotland. They carry what some people would call religious convictions to the point of fanaticism, but still, are

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they not to have those convictions considered? They carry them to the point of refusing to eat with persons of other denominations; they do not vote, and they will not join any association, even a gardening society or something of that kind. All this may seem to us on both sides of the House to be rather ridiculous.
LORD COOPER OF STOCKTON HEATH: I am sorry to interrupt the noble Earl, but, so far as I am aware, they do take wage increases.
THE EARL OF MANSFIELD: I am afraid that I cannot see the relevance of that. Are they going still to be permitted to follow their consciences, how-ever inconvenient it may he to a certain number of their fellow citizens? If we do not have liberty of conscience, which appears to be denied by the Benches opposite, then we are rapidly leading towards a Hitler-like régime. Therefore I think that the Government are very properly insisting on the right of the individual not to belong to a trade union, although they are equally rightly insisting that if he does not wish to do so, he cannot make money out of his refusal to do so. I hope that the Government will not in any way give way on this clause and that the Committee will ensure that it is retained in the Bill. As I say, any alteration that may be found necessary at a future stage of the Bill ought to be rather in the direction of widening the opportunities for not belonging to a trade union than of restricting them.
LORD PARGITER: I wonder whether the Government are really sincere in their desire for industrial peace, because there is nothing more likely to create friction than widening this clause. If we are going to have conscientious objection on religious grounds, that is fairly narrowly drawn and can be fairly interpreted and I am sure that most trade unions would be happy to do so. But if we are going to allow anyone to object to a union because it has a Communist member on its executive, I wonder where we are getting. It does not matter who are members of the executive, whether they are members of the Communist Party, the Labiour Party or even the Conservative Party; they are all bound by the rules of the union, and under the Bill the
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union would be registered and the rules approved by the Registrar. Members of the executive, whatever the complexion of their politics, will have to operate in accordance with the rules. If we are going to get under the bed and find out the religious and political opinions of members of a trade union executive and make that an excuse to say, "I have a conscientious ground for objecting to joining the union" then there is going to be trouble.
The best way of ensuring industrial peace is to draw this clause as narrowly as possible. If it is drawn narrowly, then it can be operated, but if it is drawn widely there will be disputes upon every occasion. Let us have some sense about this. There have not been many difficulties in the past. I know that members of two organisations—the Plymouth Brethren and the Jehovah's Witnesses—generally object to belonging to any other organisation. We are not objecting to that; but if we are going to widen it to almost any person on almost any ground, where are we going? If the matter goes to the union and then to the tribunal, what sort of guideline will there be to deal with cases of this kind? It is in everybody's interest that this clause should be narrowly drawn. In fact, it would be much better if it were not in the Bill at all.
5.2 p.m.
LORD DIAMOND: Before the Government reply, may I raise a matter of which I have given the Government notice and which arose out of the previous clause? I think this would be the most convenient time to clear up the difficulty relating to the Government's expressions of opinion, which are many and varied, as to the right of a trade union to use money received from a non-member for political purposes. This question was raised by my noble friend Lord Shinwell. I quote from Hansard, because the last time I raised the matter it was suggested that we ought not to rely on our memory. I quote from col. 462, where my noble friend said:
"May it"—
this kind of contribution—
"be used for political purposes …".
"LORD DRUMALBYN: These funds cannot be used for political purposes, and the Bill so provides."
"BARONESS WHITE: … I am not sure to which part of the Bill the noble Lord was referring."
"THE LORD CHANCELLOR: … the answer is that she will see it printed in Clause 7(3)."—[Col. 466.]
I looked at that subsection while my noble friend was replying and it did not seem to me, in my ignorance, that the proposition was self-evident. I therefore asked [col. 467]:
"I am asking the noble and learned Lord whether he would be good enough to look at this again. …"
Then, after an appropriate passage of time, when no doubt an opportunity of consultation was taken, the noble Lord, Lord Drumalbyn, said:
"While we are talking about conscience, I regret to say that I misled the Committee 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."
And he added:
"I hope that noble Lords will accept my apology.—[col. 486.]
One would have thought that the position at that point was pellucidly clear. The reply and apology of the noble Lord, Lord Drumalbyn, explained two matters: (a) why the wrong information had been given in the first place, and (b), why a wise Minister like the Secretary of State for Defence should show hesitation, as he did to-day, in confirming the legal view of the noble and learned Lord the Lord Chancellor. But then unfortunately there was a later intervention by the noble Lord, Lord Windlesham, who doubted the proposition that had previously been made and who said:
"I was saying that I was not present when that was discussed with my noble friend Lord Drumalbyn and I think that he and I ought to get together and sort it out."— [col.605.]
LORD WINDLESHAM: I have done so, too, and, in doing so, as I should explain to the Committee, I find that I was dealing with a separate point. I was dealing with the political levy and whether or not that would be included in the appropriate payment. The noble Baroness, Lady White, and I were correct in agreeing that it would be excluded. I was then told by noble Lords opposite that what I said contradicted what had earlier been said by my noble friend, and that turned out not to be the case.
LORD DIAMOND: I myself rose after the noble Lord's intervention to suggest that this was a matter which ought to be cleared up, and the noble Earl the Leader of the House said:
"I think noble Lords opposite may have a point here. What I would suggest is that we should look at Hansard tomorrow… [col. 606.]
et cetera. All I am asking for is final clarification. I am not asking for anybody's view to be withdrawn, if it referred to a different matter. I am not seeking any apologies. But this is a matter of considerable importance. We on this side think that the Bill is absolutely clear and we should not like any lack of clarity to be introduced, however unintentionally, by speakers opposite.
LORD WINDLESHAM: As I was listening to the earlier part of the debate, before the noble Lord, Lord Diamond, spoke, mainly about conscience, I recalled the words of Richard III:
"My conscience hath a thousand several tongues,
And every tongue brings in a several tale."
The noble Lord, Lord Delacourt-Smith, in his opening speech—a very reasonable and, indeed, profound opening speech—touched on some of the underlying worries of the trade union movement about this Bill. He was not confining himself to the narrow interpretation of this clause, but to the wider issues which it raised. I should like to reply in the same way, because I do not think it is right, if we are to look at what really lies behind the Bill, to confine ourselves to the arguments which arise on what is, after all, a relatively detailed aspect of the Bill.
So what is the present situation? It is that in perhaps 40 per cent. of British industry there are closed shop arrangements. These are very often of convenience to both sides, the employer and the trade union concerned, and that is why they have been agreed. So there are reasons of industrial convenience in some cases, though not all, leading to greater stability which are brought into the balance in favour of this arrangement. But, at the same time, there are on the record cases of hardship where individuals have suffered substantial harm and have had no means of redress. In

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a number of these closed shop arrangements there are conscience clauses.
I referred earlier to a recently entered into closed shop agreement by British Rail with three railway unions which has exactly this clause, and indeed uses the word "conscience" in the clause. I also said that only 5 people out of the total work force of 207,000 had established grounds of conscience. As a result, a number of employers, some of them with up to 44 years' service, have either been dismissed or have been threatened with dismissal. We do not believe it is right that somebody's employment should be made conditional on whether or not he joins a union. We believe that in an overwhelming majority of cases the individual worker will want to join a trade union; we hope that he will; and indeed this Bill in subsection (5) of Clause 5, which was added on Report specifically for this purpose by the Secretary of State, is a declaration of intent that the Government wish people to act upon their right to join a trade union. That is the existing situation.
But here we have in the Bill a completely new approach. It is difficult where there is a new concept to get to grips with it; to visualise what it is, how it will work, and what are likely to be the advantages and disadvantages. What this part of the Bill is doing is to bring together three strains. It is bringing together the right of the individual to join a trade union of his choice, or not to join; the fact of his social responsibility as a member of a group whose standard of living is likely to benefit from the negotiations which are carried out by the trade union on his behalf: and the need for stable and collective bargaining throughout industry. The solution to this is provided by the agency shop. It is a completely new concept; we have not had anything like it before.
The agency shop, as the noble Baroness, Lady Gaitskell, and my noble friend the Earl of Mansfield reminded us, contains within it these two categories of people. We must not allow ourselves to get into the position of thinking that it is only on grounds of conscience that a man can stand outside the union: not at all. By far the larger number are going to be the men
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who say: "I do not wish to join the union because I have objections to doing so". A man need not say what those objections are. There is nothing for him to prove. All he need say is: "I do not wish to join the union". And then he must make an appropriate contribution in lieu of his trade union due, which will normally be the same amount that the trade union member is paying, less the optional element.
So we are left only with this final residual category of the man who says: "On grounds of conscience, I am not even willing for the amount of money that I am to pay to go to the union. I do not think that is right; I have objections of conscience and of principle to that being done." So we now arrive at this difficult question of what is meant by "conscience". We have established, I think, that it is going to be a narrow ground, because it is not the first man who says, "I want to join"; it is the one hundredth man. The tribunal will look into a fundamental question—and this answers a question that has been raised by a number of noble Lords in the debate. It will look at the question: is the objection to joining a union, or is it an objection to what the union do? The noble Lord, Lord Delacourt-Smith, touched on this and suggested that some union members may say: "I do not like what my union general secretary or president has been doing, and my conscience is such that I ought to opt out." I do not think that considerations of that sort will arise.
The system of industrial tribunals has worked well. There is a lawyer as chairman, a solicitor or barrister of several years' standing as the representative of employers, and a representative of the trade union movement. They are informal bodies, and have been regarded generally as fair minded on issues of redundancy, industrial training and other matters that they have to consider. What they will have to address their minds to, in the light of their industrial experience, first, and in the light of the particular case, secondly, is: what is equitable in the circumstances? We can look at what the noble and learned Lord the Lord Chancellor has told us on a number of occasions, and repeated in his speech at Aviemore to the Law Society of Scotland over the weekend: the law

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is not something archaic and mysterious; the law is merely codified common sense.
We have here the well established concept of what is regarded as reasonable, and this is the test that will be applied by the industrial tribunals. They will be in touch with one another. I understand that they have periodical conferences, so that these matters can be discussed. A body of case law will be built up.
Let me say, I think on behalf of all noble Lords in the Committee, how grateful we were to hear from the noble and learned Lord, Lord Pearson. As he said, the Law Lords have a considerable contribution to make to our consideration of this Bill. The noble Lord asked about the method of collecting the contributions which are made in lieu of trade union subscriptions, the amount and questions arising from those two points. Let me say a word or two about the method. This will be a matter for agreement between the employer, the worker and the union, and may be included in the agency shop agreement under Clause 10. In the case of the man we are discussing at the moment, who has conscientious objections, there will be three alternatives. The first would be that the employer would deduct the appropriate amount and pay it over to the charity direct, notifying the worker and the union that he had done so, perhaps quite informally by sending a copy of the bank transfer; secondly, the worker might pay the money to the union which would pass it on to the charity, notifying the worker that it had done so; or the worker himself might pay to the charity direct, obtaining a receipt to show to the union and the employer. While the obligation to make payment is clear and specific, with appropriate enforcement provisions in the Bill, the method by which payment is made is a matter for mutual convenience between the parties, so an analogy could be made perhaps between the way in which these payments are made and the way in which a man's remuneration is paid. It is a term of his contract of service that he should receive remuneration at an agreed rate. This is a binding legal obligation. But the method of payment, whether it shall be in cash, by bank transfer, 'by Giro, and weekly or monthly, is not a matter for statute but for mutual convenience.
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On the question of the amount, the noble Lord felt that there was a case for settling the amount in some way in the Bill, but there is a fairly clear-cut formula in Clause 7 which sets out in some detail (we discussed this on Thursday night) what the maximum amount will be. It cannot be in excess of the normal union subscription. The difficulty about defining precisely in the statute is that one would have to try to put a figure on the benefits the non-unionist had obtained from collective bargaining. This would vary considerably from one case to another, but I can tell the noble Lord—and I hope this will go some way to meeting him—that on the question of collection, which seems to us crucial, the method by which payment is made will vary. I have already said, in answer to an earlier Amendment concerning lists of non-union members, that the Government intend to look into the possibility of introducing a provision which will meet the noble Lord's second point, and will consider automatic deduction of the appropriate contribution from wages and salaries of a non-member where he agrees that this would be appropriate That undertaking was given to my noble friend Lord Amory and to the noble Lord, Lord Delacourt-Smith, in the course of the debates last week.
I have spoken, I am afraid, for some little time in reply to this general debate. I could reply now to the noble Lord, Lord Diamond, on his somewhat separate point about the political purposes to which contributions might or might not be made. It is a lengthy and detailed answer; there are complicated points of law here. Alternatively, I could answer him on the Question, That Clause 9 stand part. Since the point arises out of Clause 7 we should be no more out of order in discussing it on Clause 9 than we are now. But I am in the hands of the Committee.
LORD DELACOURT-SMITH: Before the noble Lord sits down, and without prejudice to anything my noble friend Lord Diamond may wish to say on the point he was raising, may I ask a question, arising out of what he has told us? I understood him to say that in the case of some closed shop agreements recently made, which covered, I think he said, 207,000 people, there were five people

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who had conscientious objection to joining unions and that conscientious objection was sustained.
LORD WINDLESHAM: That is not exactly what I said. I think we should get it right. I think the figures given to us previously were 131 applied and 5 were confirmed.
LORD DELACOURT-SMITH: This is exactly what I was going to ask the noble Lord. Did he give us a figure for the people who I understand were dismissed as a result of this? Would he care to give us the figure? I did not pick up the figure of 131.
LORD WINDLESHAM: The position—and this is the point I am seeking to make—is that there have been only five employees of British Rail who have established conscientious grounds before the tribunal. There have been a substantially larger number of applications, and a considerable number of appeals are pending, so one must not read too much into the figures. We would not wish to debate details of the agreement without full information in front of the Committee. I was using it in the relative sense of saying that this is a very narrow gateway for the man who does not wish to join a union to go through since only five out of 200,000 people have gone through it in the case of this particular agreement.
LORD DELACOURT-SMITH: I fully understand the point, and the figure. I did understand the noble Lord, after he had given the figure of 5, to refer to people—I think he said some with 44 years' service—who had been dismissed as a result of this; and it is that figure that I should like to have.
LORD WINDLESHAM: I do not have the statistics. I speak with some previous preparation; I have a number of examples, though I do not have the actual figure. The instance referred to was not a fictitious one but the case of a man who has been dismissed. He was a man aged 61, a train guard, with 44 years' service, who was dismissed because he refused to join the union. It is not a hypothetical case, it is a real one.
LORD DELACOURT-SMITH: I was not suggesting for a moment that it was
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hypothetical; I was asking how many people were involved.
LORD DIAMOND: In reply to the noble Lord's question, I should have thought it might be convenient if Lord Windlesham is the Minister who is going to reply, and he is here, and as I am the individual who asked the question, and I am here, and those noble Lords who were good enough to listen to the question are mostly here, that we should have the reply now.
LORD COOPER OF STOCKTON HEATH: Before the reply is given, may I raise a point about the political law? I do not see the difficulty at all. Under the present law, if people do not contract out—you know how many there are and what the contribution is and you know what the political income is, and under the law a trade union has the obligation to set up quite separately a political fund. As for the chap who does not want to join a union though not on conscientious grounds, but pays a contribution, I should be amazed if he was of such a nature as not to want to join a union yet was willing to pay the political levy. But if he was willing to pay the political levy that, too, could be collected and could be put into the political fund. I do not see the difficulty, simply because the two funds have to be kept very distinct—an industrial fund and a political fund. The industrial fund can be spent only for industrial purposes, but, strange to say, the political fund can be spent for industrial purposes as well as for political purposes.
LORD WINDLESHAM: I hope I shall not infringe on the patience of the House. This is a complicated subject of law as well as of practice. Two separate but related questions arose last week, and they became confused. One was first raised by the noble Lord, Lord Shinwell, who asked whether the appropriate contributions paid by a non-member in an agency shop could be used by the union for political purposes. The other question was raised by the noble Baroness, Lady White, who asked whether the words in Clause 7(3),
"excluding any such contribution which (subject to his giving any requisite notice) he would not be obliged to pay"
excluded the possibility of the nonmember being compelled to pay the political levy as part of his appropriate contribution in lieu of membership.

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If I may be allowed to answer the second question first, I would confirm that Clause 7(3) excludes the non-member in the agency shop from contributing any political levy. Both the noble Baroness and myself were under the impression that it did so exclude such a person.
LORD PARGITER: If the man chooses to contract in he pays a political levy. If a person does not belong to a trade union and is asked, in making the contribution in lieu, "Do you wish to contract in or out of the political levy?" he can please himself.
LORD WINDLESHAM: The noble Lord is on the wrong point. I would appreciate it if I can make this explanation and we can discuss this afterwards. The noble Baroness and I were discussing Clause 7(3), which is concerned with what is called the "appropriate contribution" in lieu of trade union membership made by somebody who has exercised his right not to be a member of a union in an agency shop. Clause 7 deals with the amount of that payment, and it says that it should exclude the optional elements. I was asked whether or not the optional elements included the political levy. The answer is that they do, and therefore the amount the man pays does not include the political levy.
Moving on to the Trade Union Act 1913, which is applied to this Bill by Amendments in Schedule 8, this requires trade unions which adopt Party political objects to keep a separate fund for Party political expenditure, and to adopt political fund rules approved by the Registrar of Friendly Societies. Where a union has adopted political objects the rules must provide, inter alia, for the exemption of any member of the union from the obligation to contribute to the political fund if he gives notice, in accordance with the Act, that he objects to making such a contribution. The Act imposes on the officials of the union, at the time it adopts political objects, the duty to give notice to existing members of their right not to contribute. For a new member, subsequent to adoption of the political fund rules, the obligation to contribute to the political fund does not operate until the expiration of one month from the time the member is supplied with a copy of the union political
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fund rules, and only if he does not claim exemption meanwhile. It will be clear to noble Lords that since the member of a union cannot be obliged to pay the political levy, the political levy cannot, under the provisions of Clause 7(3), be made part of the appropriate contribution paid by the non-member.
The Trade Union Act of 1913, which is crucial, established that any organisation satisfying the definition of a trade union in that Act may pursue any lawful object included in its constitution. However, with respect to certain political objects the Act imposed special conditions. The objects to which these conditions apply are "Party" political objects, in the sense of either supporting political candidates or furthering some political purpose outside the regulation of relations between employers and workers and the other related statutory objects of trade unions. They are listed in Section 3, subsection (3), of the Act as being the expenditure of money: (a) on the payment of expenses incurred by a candidate or prospective candidate for election to Parliament or any other public office: (b) on the holding of meetings or distribution of literature in support of such a candidate or prospective candidate; (c) on the maintenance of a Member of Parliament or person holding a public office; (d) in connection with the registration of electors, or the selection of candidates for Parliament or any public office; (e) on the holding of political meetings or distribution of political literature except where the main purpose is the furtherance of the union's statutory objects. Any union, whether registered or not, must, if it is to apply its funds either directly or indirectly to "Party" political objects satisfy the conditions set out in Sections 3 to 6 of the 1913 Act, which provide that: (a) the pursuit of such political objects has been approved as an object of the union by a ballot vote of the members, held under special ballot rules approved by the Registrar; and (b) the union has adopted political fund rules, also to he approved by the Registrar, providing for the keeping of a separate political fund and for the free exemption of any member who does not wish to contribute.
It may be seen, therefore, that the nonmembers' contribution could not be added to a union's political funds or expended

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on "Party" political objects. The expenditure of money, including the appropriate contributions of non-members, from the general funds of a trade union on Party political objects could form the subject of criminal proceedings. But the 1913 Act leaves the union free to draw on its general funds, which would include the appropriate contributions of nonmembers, for expenditure on other political objects, if so authorised by its constitution. The scope of the "Party" political objects contained in Section (3) of the Act has never been interpreted by the counts, but the Registrar of Friendly Societies is understood to interpret the Section as not extending to the wide range of activities which can be grouped under the heading of "politics": for example, propaganda in favour of objectives which cut across domestic Party lines. I apologise for the length of that explanation, and its complexity, but it is useful to have it in Hansard in the light of the questions and discussions that we have had.
5.36 p.m.
LORD DIAMOND: I am sure the Committee is grateful to the noble Lord for that full explanation. There is nothing in what he said which contradicts the remarks of the noble Lord, Lord Drumalbyn, when he said that there is nothing in the Bill which limits the purposes to which a union may put contributions made by non-members. The noble Lord has referred to other enactments outside the Bill which are not before us. All we have power to deal with is the Bill which is before us. There is no need to dwell further on this topic because both noble Lords—and this is a very happy occasion both for the Government and the Committee—are now agreed that there is nothing in the Bill which limits the purposes to which a union may put contributions made by non-members. I express my own appreciation, and I am sure the appreciation of the Committee, for that full reply.
BARONESS WHITE: I should like to ask one more question. In company with my noble friend, Lord Pargiter, I am not entirely clear. Could we be enlightened as to the position about the political levy? One can see under Clause 7(3) that any such matter would not be included in the payment which would be an obliga-
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tory in lieu payment for someone who wished not to be a union member. But is there anything to stop a person who does not want to belong to the particular union in question in the agency shop, but who still might have some affection for a political Party, from contracting-in if he wishes to for that particular payment?
LORD WINDLESHAM: I do not think anyone would be precluded from paying more than they were required to pay if they wished to do so for any purpose whatever.
VISCOUNT AMORY: I take it that this announcement is the 5.30 "late night final" on this point?
LORD DELACOURT-SMITH: After that interesting discussion on the applicability of the monies paid by non-unionists, I must seek to bring your Lordships back to the grounds on which I suggested that this clause ought not to stand part of the Bill. Those grounds were that the clause as drafted, with the reference to "conscience", was such that, especially in the light of the discussion earlier in the Committee, there was a danger that "conscience" might be interpreted much more widely than it has hitherto been, and that this might give rise both to difficulties and to friction which need not arise, and to a certain degree of undermining of the genuine attention and protection which ought to be given to conscientious objection.
I was a little surprised by the views attributed to me and my noble friends by the noble Earl, Lord Mansfield. I do not think that anything I have said this afternoon or when I spoke in the presence of the noble Earl on the same subject last Thursday gives any justification whatsoever or in the slightest degree for suggesting that we are not concerned about individual liberty and that we are not concerned about the proper protection of conscience. Incidentally, if I may say so, I did not understand the noble and learned Lord, Lord Pearson, to be arguing in the direction which the noble Earl attributed to him—arguing that there should be a widening of the exemption on conscientious grounds. If I understood Lord Pearson correctly, he was suggesting that there should be a closer definition—whether wider or narrower I do not think he indicated. He felt (and I am completely at one with him; this was

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indeed the essence of much I was saying) that this matter ought to be much more closely defined for the benefit of all of us and for the avoidance of friction and difficulty which will do no good and which is avoidable.
As I understand it. we are all completely at one in agreeing that hitherto nobody has had any serious complaint—certainly nobody has voiced any serious complaint—about the treatment by the trade union movement of those individuals who reject the idea of joining a trade union because their religious beliefs lead them to the conviction that they ought not to join associations of any kind with people who do not share their religion. I think that this applies to the Close Brethren in the Northern parts of Scotland. Indeed, I know there are one or two who are employed in the occupation which I myself am concerned with and who, as I undersand it, are in happy understanding and mutual respect with the trade union. This, I believe, is the general situation: that their convictions are respected; that they, for their part, understand and appreciate what the union seeks to do, and, so far as I am aware, this is not a situation which gives rise to animus or friction. It is accepted on both sides.
The essence of my point to the Committee was that we are in danger of moving into a quite different situation where not only do we widen considerably the concept of conscience but we change the whole character of the relationship between the trade union and the individuals who claim on conscientious grounds to reject union membership. This is a point which I believe has been quite fairly established. The noble Lord said it was difficult to visualise how some of these things would happen. I agree, it is very difficult indeed to visualise how many of the features of the Bill will operate in practice, which is what makes it such a tragedy that the Government have conducted themselves in a way which has made proper discussion with the trade union movement upon this Bill impracticable. The noble Lord gave his belief and his impression about what the tribunals would do. He told us that they would consult together; that there would no doubt be uniformity, and all sorts of desirable things would happen. What he did not do was to give us any
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justification at all for believing that the unfortunate consequences which can result from widening the whole definition and concept of conscience would not arise if in fact the words in the Bill before us remain as they are at present.
Further, noble Lords repeatedly refer to this question of conscience as though it applied or had bearing only where there is an agency shop or a closed shop. They take the same view about the statutory right to be a non-unionist. They imply that it does not matter except where there is an agency shop or a closed shop. If I may respectfully say so, this again reveals the remoteness of so much of the drafting of this Bill and of so many of the arguments put forward in respect of it from the actual problems of day-to-day life in industry; because the vast majority of our industry—perhaps not the vast majority, but certainly at least 60 per cent. of it—is covered, not by closed shops or anything like them; it is covered by arrangements whereby people, join trade unions on a perfectly voluntary basis, and trade unions have to keep up a constant programme of explanation, education and propaganda to maintain their trade union membership.
What the Government are doing in Clause 5 and in this clause, quite apart from the other problems and difficulties to which they are unnecessarily giving rise, is to make the job of the trade union more difficult in those fields where voluntary arrangements and voluntary recruitment are the order of the day. As my noble friend Lord Cooper of Stockton Heath said on an earlier debate, there are manifold reasons why a non-unionist will refuse to pay union contributions and why, if he possibly can, he will resist being enrolled into the ranks with his fellow s. And the Government have given him two splendid new arguments. First of all, he can say, "I have a statutory right to be a non-unionist". It is quite irrelevant, but it is another argument; it is an answer. Then, if he is not satisfied with that, he will say, "I have a conscientious objection. I read something which the general secretary said or which the union resolved and I did not like it. It offended my conscience", and that will be another argument he will apply to the chap who is trying to recruit him into the union on a voluntary basis. That is what I meant when I said that not only are the Government giving a statutory

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right to the non-unionist; they are in danger of putting a moral halo around his head.
Nothing I say, and nothing my noble friends have said, in any way underestimates the importance of the individual who, it is common ground, should be excluded from union membership and whose conscience should be respected. I am not referring to that. We are conscious, too, of the strong views which individuals hold about trade unions, their policies and the personalities involved in them. But the place to give expression to those strong convictions is inside the trade union; and it is a thousand pities that the Government, instead of encouraging these people in every way to join trade unions, are giving them every possible excuse and every possible shred of justification for refusing to do so. It is a very great pity indeed. I know the Government will say that they do not intend this, and they will point to admirable speeches which have been made by various Ministers to the contrary. Then I do wish they would make their measures as set out in this proposed Statute coincide with their intentions, if their intentions indeed are to promote collective bargaining. However, I hope the noble Lord will be able to tell us, even at this last minute, that he will take this matter back; that he will take note of the anxieties which have been expressed, I trust in a constructive way, from this side of the Committee. If he does not feel able to do so, I shall have no alternative but to ask my noble friends to divide the Committee on the issue.
5.48 p.m.
LORD DAVIES OF LEEK: I apologise for being late, but it is sometimes very difficult to follow what is going on in this House, even if one is early. We seem to be discussing Clause 7. We have had a very helpful explanation, as we did in the last debate. We then went back to Clause 8 and I now take it that we are saying that Clause 8 should be excluded. We have come back to that, and that is what I wish to speak about. First of all, I was delighted to hear the noble Lord speaking for the Government say that this is something new. I happened to be in the United States of
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America some years ago when all this business was going on there about the agency shop and about making contributions to charities. It is not new at all; it has been plucked out of a burning bush. The idea is, however, something absolutely foreign to all that is going on. The true fact is that when the Donovan Committee were discussing this matter they said that the legal right not to be a unionist was designed to frustrate the development of collective bargaining. Let us face it—that as much as anything is one of the consequences of these clauses which we have been discussing. All one wants to look at is what happens when there is an agency shop system and a registered trade union. We cannot go into the question now because it would be out of order, but we must remember that there are many hurdles to overcome to get the registered trade union and there may be delays of two years; but We have not yet reached that frustrating debate.
Let us suppose that I have a conscientious objection and I am working beside trade union members in a busy factory or mine, and there is a major accident. Many noble Lords seem to think that the only function of a trade union is collective bargaining but, as I said the other day, over the past hundred years there has grown up, by trial and error, a massive amount of expertise in the trade union movement. They may be "sea lawyers", as they are sometimes disparagingly described, but they have a massive amount of information about the working of Acts of Parliament and about industrial injuries and industrial diseases. On the shop floor we shall have two types of animal, one a bona fide member of the trade union movement and the other with a conscientious objection. It has never been explained how we can guarantee that the man who has a conscientious objection to joining a union will not be looked upon disparagingly by his comrades on the shop floor. None of these points has been considered in depth.
The pity about this is that in the euphoria of winning the General Election the Party opposite, with hundreds of years' experience of government, with the wise people and the judges in it, did not stay the hand of the young Poujardists

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who have entered the Party and let them wait to get some practical experience before this mish-mash of verbiage was thrust upon the House; before we had this mix-up of ethics and jurisprudence. I frankly say to the Committee that this will not work in practice. It will lead to all kinds of differences, and far from helping productivity and a peaceful approach to industry and between the two sides of industry, I believe in the long
Resolved in the affirmative, and Clause 8 agreed to accordingly.
run it will be frustrating. My only hope is that we shall have a General Election before this Bill is put on the Statute Book.
5.54 p.m.
On Question, Whether Clause 8 shall stand part of the Bill?
Their Lordships divided: Contents, 110; Not-Contents, 50.

CONTENTS

Aberdare, L.

Eccles, V.

Monck, V.

Ailwyn, L.

Effingham, E.

Monckton of Brenchley, V.

Allerton, L.

Emmet of Amberley, Bs.

Mountevans, L.

Alport, L.

Exeter, M.

Mowbray and Stourton, L.

Amherst, E.

Ferrers, E.

Norwich, V

Amory, V.

Fortescue, E.

Nugent of Guildford, L.

Ashbourne, L.

Fraser of Lonsdale, L.

Oakshott, L.

Atholl, D.

Goschen, V. [Teller.]

Ogmore, L.

Balerno, L.

Gray, L.

Radnor, E.

Balfour of Inchrye, L.

Grenfell, L.

Rankeillour, L.

Barrington, V.

Grimston of Westbury, L.

Rea, L.

Beauchamp, E.

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

Rothermere, V.

Belstead, L.

St. Aldwyn, E.

Berkeley, Bs.

Halsbury, E.

St. Helens, L.

Birdwood, L.

Hankey, L.

St. Just, L.

Blackford, L.

Hanworth, V.

St. Oswald, L.

Boston, L.

Harlech, L.

Sandford, L.

Bridgeman, V.

Hawke, L.

Sandys, L.

Caccia, L.

Henley, L.

Selkirk, E.

Carrington, L.

Hood, V.

Sinclair of Cleeve, L.

Chandos, V.

Howard of Glossop, L.

Somers, L.

Clwyd, L.

Howe, E.

Stamp, L.

Cottesloe, L.

Ilford, L.

Stonehaven, V.

Courtown, E.

Jellicoe, E. (L. Privy Seal.)

Strang, L.

Cowley, E.

Jessel, L.

Stratheden and Campbell, L.

Craigavon, V.

Kemsley, V.

Sudeley, L.

Crathorne, L.

Killearn, L.

Swaythling, L.

Croft, L.

Latymer, L.

Teviot, L.

Cromartie, E.

Lauderdale, E.

Teynham, L.

Cullen of Ashbourne, L.

Lothian, M.

Tweedsmuir, L.

De Clifford, L.

Lucas of Chilworth, L.

Tweedsmuir of Belhelvie, Bs.

Denham, L. [Teller.]

McCorquodale of Newton, L.

Verulam, E.

Derwent, L.

McFadzean, L.

Vivian, L.

Drumalbyn, L.

Mancroft, L.

Waldegrave, E.

Dudley, E.

Mansfield, E.

Willingdon, M.

Dundee, E.

Merrivale, L.

Windlesham, L.

Ebbisham, L.

Milverton, L.

Yarborough, E.

NOT-CONTENTS

Archibald, L.

Fiske, L.

Plummer, Bs.

Balogh, L.

Gaitskell, Bs.

Popplewell, L.

Beswick, L.

Gardiner, L.

Ritchie-Calder, L.

Birk, Bs.

Henderson, L.

Sainsbury, L.

Blyton, L.

Heycock, L.

St. Davids, V.

Brockway, L.

Hilton of Upton, L. [Teller.]

Serota, Bs.

Brown, L.

Hoy, L.

Shackleton, L.

Buckinghamshire, E.

Hughes, L.

Shepherd, L.

Burton of Coventry, Bs.

Jacques, L.

Shinwell, L.

Champion, L.

Janner, L.

Slater, L.

Chorley, L.

Leatherland, L.

Snow, L.

Collison, L.

Lee of Asheridge, Bs.

Sorensen, L.

Cooper of Stockton Heath, L.

Llewelyn-Davies of Hastoe, Bs.

Strabolgi, L. [Teller.]

Davies of Leek, L.

Maelor, L.

Taylor of Mansfield, L.

Delacourt-Smith, L.

Movie, L.

White, Bs.

Diamond, L.

Nunburnholme, L.

Wootton of Abinger, Bs.

Faringdon, L.

Pargiter, L.

Clause 9 [Reference to industrial tribunal of dispute relating to contribution]:
6.4 p.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 71A:
Page 7, line 28, leave out ("person") and insert ("worker").
The noble Lord said: This Amendment is the kind of amendment which in fact my noble friend Lord Delacourt-Smith is rather better equipped to discuss with your Lordships than I am, and if it is convenient to your Lordships I will now introduce him to you.
BARONESS WHITE: It is I who have to apologise to the Committee for not being here to move the Amendment; this new method of voting means that it is difficult to return to the Chamber after the Division. This is a probing Amendment because we were a little puzzled as to why the Government, having refused our suggestion in a number of other places to substitute the word "person" for "worker", in this particular place and in a following Amendment, No. 71C, themselves use the word "person" instead of "worker". This is done in a context which, to us at any rate, does not make it at all clear why in this particular clause they are quite happy to have the word "person" used, whereas in the various clauses where we thought the word "person" more appropriate they insisted on using the word "worker". Possibly the noble Lord can give us a simple explanation why they use the other term here.
LORD WINDLESHAM: The distinction between the use of the word "worker" and the use of the word "person" is as follows. "Worker" is the expression used only in relation to an employer, as I explained several times in the debates on Amendments Nos. 22 and 68. In Clause 5(1) the worker is given specific rights to which remedies are attached against the employer. The definition of the word "worker" is in Clause 158(1). The word "person", on the other hand, is any private individual, and is the term used in Clause 63 and elsewhere vis-á-vis the individual and trade union membership. It thus includes anyone, such as the right reverend Prelate the Bishop of Blackburn, who, we heard,
688
is a member of a trade union. There was a debate between my noble and learned friend, the Lord Chancellor and the noble Lord, Lord Delacourt-Smith about a five-year old child; all these would be persons who would not be workers, in that there would be no relationship with an employer.
However, as the noble Baroness has pointed out that there might be possible inconsistencies in the wording of this part of the Bill, concerned as it is with agency shop agreements, we have looked again at this point. As noble Lords opposite know, we are anxious to be as reasonable as possible, as accommodating as possible, in meeting points of view, and having taken a second look at it we are inclined to agree that there may be something in the argument of inconsistency. The Government have strongly resisted the argument to delete the word "worker" and substitute "person", and we are pleased to know that our counter arguments are being accepted in this Amendment. I am most grateful to the noble Baroness for pointing to these two unauthorised "persons"—there is another Amendment in a moment—and shall be glad to ask your Lordships to accept the Amendment.
LORD BROWN: May I point out to the noble Lord that the inference of what he has said is that the Bishop of Blackburn may find himself involved in an agency shop agreement. It is an illogicality. I merely point it out; I do not wish a reply.
BARONESS WHITE: I want to express a certain degree of gratitude that on this particular point the Government have for once shown themselves flexible rather than rigid. I must say that as the person concerned would be paying in accordance with an agency shop agreement in that particular context, it seemed to us curious and illogical not to use the word "worker." which was insisted on in another place. We are happy to accept the Government's agreement to the Amendment.
On Question, Amendment agreed to.
LORD DELACOURT-SMITH LORD DELACOURT-SMITH moved Amendment No. 71B:
Page 7, line 32, leave out from ("or") to end of line 37.
The noble Lord said: I think I can move this Amendment very briefly,

689
because it may be there is an explanation. What puzzles us is how it is possible for a situation to arise under subsection (1) (c), that is representing
"an arbitrary or unreasonable discrimination by the trade union"
against the individual, if it is not already contrary to either subsection (1)(a) or subsection (1)(b). If, indeed, there are no sets of circumstances which could arise under paragraph (c) which would not already arise under either paragraph (a) or paragraph (b), then it appears to us that the words in paragraph (c) are unnecessary, and we move to delete them. I beg to move.
6.10 p.m.
EARL FERRERS: I am grateful to the noble Lord for moving his Amendment so briefly, and I shall try to emulate him. The Government have taken note of this Amendment and have looked at this point again. When the Bill was first drafted, it was considered that there might be occasions when an individual could be unreasonably discriminated against by a trade union in regard to the payments for an agency shop. But as the noble Lord has put down his Amendment we have looked at this point again even more closely and, rather like the noble Lord himself, have come to the conclusion that possibly the provisions of paragraph (c) are, in fact, covered by paragraphs (a) and (b). The only trouble is that we could not accept the noble Lord's Amendment as it stands, because I do not think he has put in his Amendment quite what he intended. He has moved to leave out from the word "or" to the end of line 37, which means that paragraph (a) would read,
"is not payable in accordance with the agreement, or"
as it does now, but the word "or" would be left, as it were, hanging in the air. Also, he has excluded paragraph (b), which he probably did not mean to exclude. But if the noble Lord will be good enough to withdraw the Amendment, we shall see that an Amendment is moved at Report stage to eliminate paragraph (c) which he really wants to eliminate.
LORD DELACOURT-SMITH: I am very happy to receive the noble Earl's
690
assurance. On that basis, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
BARONESS WHITE: I beg to move Amendment No. 71C.
Amendment moved—
Page 8, line 1, leave out ("person") and insert ("worker").—(Baroness White.)
On Question, Amendment agreed to.
On Question, Whether Clause 9, as amended, shall stand part of the Bill?
6.13 p.m.
LORD DELACOURT-SMITH: I think I suggested when we were discussing Clause 5 that, as a result of the terminology of that clause, we had at some stages provided a series of steam hammers to crack nuts, and a good deal of Clause 9 also merits that description. We see it as a direct consequence of the provisions to which we have already raised objection. We object to the arrangements proposed for the agency shop agreement, and Clause 8 seeks to give what is potentially a very wide definition to an arrangement to safeguard the position of those who have genuine conscientious objections. Clause 9 follows so naturally from the preceding clauses which we have sought to remove from the Bill, that we feel it quite right to seek to signalise our objection to its provisions by dividing the Committee against its inclusion.
LORD BROWN: I rise to ask my noble friends on the Front Bench not to press this Amendment. If we are going to have agency shop agreements—and we all know that we are—then there are going o be in lieu payments. If there are in lieu payments then, unless you can lay down the exact amount in the Bill, there is bound to be some tribunal which will decide what they should be in cases of dispute. You cannot leave a trade union, whose rules are not clear on what the in lieu payment should be, to name any figure it likes, because I fear that some of the less responsible unions may seek to victimise those who take advantage of their rights under the Bill and the end result will be a furious squabble between the person and the union. We on this side object to all sorts of aspects of the Bill, but, obviously, the agency shop agreement has been

691
decided in another place by the elected representatives, and if we cannot get the Party on the other side to agree to delete this whole business, then we shall have to face it; and if we have to face it then we shall have to have an appeals mechanism. I am afraid that we shall argue about the deletion of this clause for a very long time, and I do not want to listen to hours of argument which it will be really impossible to end and which will be illogical in the face of the Bill as it is going to be.
I know that many people are going to say to me, "You do not understand politics". Many people on both sides have said that to me many times since I entered this House, but my opinion is that I do understand politics. I understand them now to be something which very frequently wastes a hell of a lot of time—and not only on this side of the House. I have sat on the other side and have had to face barrages of discussions which were obviously not cogent, and I have had to do it patiently because I was a Minister and one cannot get irate when one is a Minister. I always resolved when I faced those barrages that one day, if we had to cross the Floor of the House, I should not indulge in the same sort of activity, and I am asking my noble friends on the Front Bench not to proceed with this Amendment. They know that they are going to lose the Division, and they know that if they won it a host of other changes would be necessary to the Bill. In fact, it would mean the deletion of the agency shop agreement. So why go on with it?
LORD DAVIES OF LEEK: I apologise—
LORD DIAMOND: Will my noble friend forgive me? I am bound to say to my noble friend Lord Brown, whose normal opening to a speech is "I appeal to my Front Bench to withdraw their Amendment", that he has now picked on a peculiarly inappropriate occasion to do it. First of all, we are not discussing an Amendment. Secondly, we have moved three Amendments, each one of which in turn could have been subjected to the same point of view, but each one of which in turn has been accepted by the Government—the second one in principle, and the first and third in precisely their
692
words—as improving the Bill. So I hope that my noble friend will return to that frame of patience and good humour which I gather he exhibited throughout the period when he was a Minister.
LORD SHINWELL: There is one point which I should like to make and, afterwards, my noble friend Lord Davies of Leek can take charge with my consent for as long as he likes. I am bound to take exception to one point which my noble friend Lord Brown made. My noble friend has told the Committee that he knows all about politics, but, speaking as an apprentice myself, perhaps I may offer an observation on what is a constitutional issue—and I understand constitutional issues. I have been a long time experimenting with constitutional issues. My noble friend asked: if in the other place the elected representatives have come to a decision, why should we go any further?
LORD BROWN: I said nothing of the kind. I said that if the elected representatives in the other place have come to a decision and we on this side have not convinced the Government to go along with us, then why should we spend a lot of time arguing it?
LORD SHINWELL: In that case, we should adjourn and be done with it. That is really what my noble friend is saying. I can understand the impatience. I am sometimes a little impatient myself. I have to listen to a great many speeches.
SEVERAL NOBLE LORDS: Oh !
LORD SHINWELL: It is a fact. There is only one thing worse than listening to one's own speech, and that is having to listen to those of others. My noble friend has told us that he sat on the other side of the House for quite a long period of time and had to listen to arguments, some cogent and some hardly cogent. I have had that experience myself, on both sides of the other place, and for a much longer period than my noble friend Lord Brown.
A NOBLE LORD: You have worn very well !
LORD SHINWELL: I am not sure whether he was born when I started. I was almost an elder statesman before the First World War; so my experience

693
counts for something. No; I disagree entirely, fundamentally, vitally and wholeheartedly—and I cannot go beyond that at the moment because of the time limit.
BARONESS EMMET OF AMBERLEY: I rise merely to say I wonder whether it is in order for the noble Lord to be discussing what he is discussing, which is a difference with his noble friend, instead of the Question, Whether Clause 9 shall stand part?
LORD SHINWELL: I have the greatest respect for the noble Baroness, Lady Emmet. She is an old colleague of mine from the other place. But I do not hear awfully well, and she will perhaps forgive me if I do not respond. Anyway, I will not take up much more of your Lordships' time. The point is that the mere fact that the other place have come to a decision—and the Government naturally accept the decisions of the other place: that is a foregone conclusion—is no reason why we should not debate every issue. Nor is it any reason why we should not divide on every issue. That was done in the other place. Indeed, when a subject is transferred from the other place to your Lordships' House, surely the obvious thing to do is to debate, argue, probe and carry on until we reach firm and reasonable decisions.
LORD BROWN: My noble friend really must no go on any longer distorting what I said. I am merely making a plea that we should not debate in a non-cogent fashion. I am not suggesting that we should debate nothing; of course we should. My plea is entirely based on the particular Motion before the Committee now, the argument for which is not, in my humble submission, a cogent one.
LORD SHINWELL: My noble friend is getting deeper and deeper into the ocean. He has not only put his feet in: his whole body is immersed now. This simply will not do. He says that because he is not satisfied with the nature of the arguments, the arguments are not cogent, and therefore we should not proceed. Are we to understand that every argument that is adduced here, on either side of your Lordships' Committee, must be regarded as being cogent? We have to speak as we feel. It is far better to speak
694
as one feels than to read elaborate treatises carefully and deliberately prepared.
THE EARL OF KINNOULL: Would the noble Lord like to divide on this issue?
LORD SHINWELL: What is happening now is this: I would not be faced with this interruption or with the interruption from the noble Baroness, Lady Emmet, had it not been for the observation of my noble friend. I did not initiate this row—not at all. I am merely responding to it, trying to calm things down; to hold my temper. That is what I am trying to do. Now I come to my conclusion, and I hope that noble Lords will not mind if I do, to satisfy my noble friend Lord Davies of Leek, because I can see that he is straining at the leash. My noble friend Lord Brown pleaded with cur Front Bench to withdraw and not to divide on this Question. I take the opposite line: I make a strong, urgent appeal to my noble friends on the Front Bench not to withdraw but to divide in order to show the strength of our feelings and the urgency of the subject.
LORD DAVIES OF LEEK: May I—
THE DEPUTY CHAIRMAN OF COMMITTEES: The Question is, Whether Clause 9 shall stand part of the Bill?
LORD DELACOURT-SMITH: Are we not to have any reply from the Government justifying the insertion of this clause?
LORD DAVIES OF LEEK: I have given way with courtesy instead of using the number of decibels that I very well could. Having learned to be a little more elegant in this place, I decided not to shout down my noble friend Lord Shinwell, which would be very difficult, and I certainly should not like to overcall anyone else. I just want to be brief but, I hope, apt. The apt point I want to put is this. We have a perfect right to explore what these 'tribunals are going to do, and we have a perfect right to say that Clause 9 shall not stand part of the Bill. Part of the purpose of our opposition is to get such wonderful explanations from the Front Bench opposite as we had half an hour ago from the

695
noble Lord who spoke on Clause 7 and Clause 8 at the same time, which was of inestimable value to the understanding of the Bill and which clarified things which were not clarified in the other place.
Now let me come to the nub of this little argument—and I assure noble Lords I shall not be very long. The purpose of this clause is to establish industrial tribunals, and to enable references to them of disputes relating to contributions. Subsection (3) of the clause reads:
"Any matter determined by the decision of an industrial tribunal … shall have the like effect for the purposes of this Act as if it had been agreed between the worker and the trade union".
Now, that tribunal having made a decision, in come the unfair practices—and God knows how many of those are there! There is the possibility of unfair practices now creeping in between the worker, the union and the employer. We are told that members with relevant industrial experience will be on these tribunals, and that there will be this system of local courts. Some are in existence now. These will be the existing industrial tribunals which at present deal with appeals concerning claims for redundancy payments and the application of contracts under the Employment Act. Now we are adding a further burden. That is why, the other day, I said that this is a young barrister's bonanza. This will make a fortune for a young barrister. I wish I had bothered a few years ago in the other place, to spend a couple of years sitting for law. Perhaps my noble friend Lord Shinwell and I are not yet too old. I think I will discuss this prospect with him. It is a good sideline.
LORD SHINWELL: No, heaven forbid! We have got enough legal gentlemen without having any more.
LORD DAVIES OF LEEK: Let me come back to the point at issue. The broad intention of these systems, then, is that they will deal with these appeals. All I want to ask is: am I right about these tribunals? Is it right that they increase the area of the possibility of punitive action if unfair practices are so designated after the decision of a tribunal? My last question—and I thank
696
noble Lords for listening so patiently to the whole of the debate from my noble friends—is this. Are we going to extend this system of tribunals, and is there somewhere in the Bill later on (I think there is) a point at which, instead of delaying your Lordships now, we shall have the possibility of discussing and deciding the set-up of these tribunals, together with their purpose, in greater depth?
6.30 p.m.
EARL FERRERS: I should like to apologise to the noble Lord, Lord Delacourt-Smith, if he thought he was being given a slight sign of discourtesy by the Government not having replied earlier, but it will not have escaped his attention that there was a certain degree of competition on the Benches behind him to take the floor, and it was only in deference to that competition that I failed—it is not that I did not attempt, but failed—to rise a little earlier. The noble Lord moved that the clause should not stand part with a degree of brevity which, again, I shall do my best to emulate, because, as I think the noble Lord, Lord Brown, said, this particular clause follows so clearly and so obviously on the earlier clauses that it would be, as I would suggest, quite wrong that it should be eliminated.
The previous clauses have dealt with the matter of the agency shop and the payments that have been made by people who do not wish to become members of a specific trade union. Clause 8, dealt with people who make payments on the grounds of conscience. All that this clause says is that if, after all the normal courses of discussion have been gone through (we believe that the majority of these agreements will be undisputed) and there has been a failure to reach an agreement, then there will be recourse to the industrial tribunal to try to make a decision fair to both sides in resolving the problem.
I really think this is a last resort. The noble Lord, Lord Delacourt-Smith, described this as a sledge-hammer to crack a nut. That description is possibly a little unfair, but it is correct that the nut will only be a very small one. As noble Lords have sought, not unsuccessfully, by three Amendments to amend this clause, I therefore suggest that the clause should remain in the Bill.
LORD BEAUMONT OF WHITLEY: The noble Lord, Lord Brown, is absolutely right. Clause 8 has been accepted by the Committee. Under Clause 8 there will, unfortunately, from time to time be disputes; some method of solving them must be found. That could be done by accepting Clause 9 as it stands, or by amending it. It cannot be done by throwing Clause 9 out, and it is a waste of your Lordships' time if this matter is taken to a Division.
6.32 p.m.
LORD DELACOURT-SMITH: It is a feature of this Committee that there are differences of opinion within it. However, since there has been so much adulation poured upon this clause and the necessity for it, let us really look at what it does in two parts. First, in relation to the agency shop situation, apparently one has to have an industrial tribunal to resolve whether or not something is payable in accordance with the agreement. The only issue that can arise there so far as I can see, is whether a man is a member of the trade union or not. If he is a member of the trade union he pays whatever contribution. If he is not a member of the trade union he pays whatever contribution is appropriate under the agreement. I am unable to see what great issues can arise which will turn on whether the payment is payable under the agreement or not. Then there is the amount of payment. Almost a page is devoted in Clause 7 to setting out in great detail what the contributions are which a non-member shall pay. If we really have to go to industrial tribunals to decide whether the amount is to be two shillings or two shillings and sixpence a week, and we are building up this issue into something so great that, without knowing that there is a tribunal to go to, ordinary men of common sense cannot resolve it, I really do not know what we are coming to.
The second part relates to the position of the individual who claims exemption on conscientious grounds. We have already made it quite clear that we are exceedingly concerned about this concept and the danger of its being widened. It is
698
proposed that we should have industrial tribunals to pronounce on whether the individual's conscientious objection is sound or not. As to providing for tribunals to decide that issue, it would be very much better if we in this Committee, as part of the legislative process, gave a much closer, clearer and less ambiguous definition, rather than pass it to a tribunal. Indeed, we would much regret a term so nebulous as this being allowed to stand in that form in the Bill, and the possibility of a considerably wider interpretation being given to it by the tribunals.
Then we have to determine to which charity the money goes—whether, for example, to the Queen Alexandra Rose charity or the National Society for Children's Welfare, is it seriously expected that there are going to be such great disputes over this issue that we must have a tribunal in the background to resolve them? What contributions will be equivalent to the appropriate contributions to the trade union? I should have thought that, here again, we are casting doubt upon the common sense approach which legislation proposed in this Bill—even under some of the fantasies of legislation proposed in this Bill—if we think we must have an industrial tribunal to resolve the great disputes which arise on these matters. As I suggested, we are putting into the Bill a great sledgehammer to crack a nut; we are puffing up these issues which, if they are to arise at all, ought to be susceptible of speedy settlement between reasonable men.
The only issue of serious importance is that of determining the degree of conscientious objection, and whether it is valid or not. For the reasons we have already explained, we on this side do not believe that it is appropriate to put the issue in such broad terms into the Bill in its present form and pass the matter to the industrial tribunals to interpret. Those are the grounds on which we have moved the deletion of the clause. I should have thought: they are sufficiently clear to anybody, and in particular to my noble friends who have read the clause in the context of the Bill.
6.36 p.m.
On Question, Whether Clause 9, as amended, shall stand part of the Bill?
Resolved in the affirmative, and Clause 9, as amended, agreed to accordingly.
6.46 p.m.
LORD DRUMALBYN: This may be a convenient moment for me to move that the House do now resume.
Their Lordships divided: Contents, 125; Not-Contents, 42.

CONTENTS

Aberdare, L.

Emmet of Amberley, Bs.

Monckton of Brenchley, V.

Ailwyn, L.

Essex, E.

Mountevans, L.

Allerton, L.

Exeter, M.

Mowbray and Stourton, L.

Alport, L.

Ferrers, E.

Napier and Ettrick, L.

Amherst, E.

Fortescue, E.

Nugent of Guildford, L.

Amory, V.

Fraser of Lonsdale, L.

Oakshott, L.

Ashbourne, L.

Gisborough, L.

Radnor, E.

Balerno, L.

Glendevon, L.

Rankeillour, L.

Balfour, of Inchrye, L.

Goschen, V. [Teller.]

Rathcavan, L.

Barnby, L.

Gray, L.

Redesdale, L.

Barrington, V.

Greenway, L.

Redmayne, L.

Beauchamp, E.

Grimston of Westbury, L.

Rhyl, L.

Beaumont of Whitley, L.

Hacking, L.

Rockley, L.

Belstead, L.

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

Rothermere, V.

Berkeley, Bs.

St. Aldwyn, E.

Boston, L.

Halsbury, E.

St. Helens, L.

Bridgeman, V.

Hankey, L.

St. Just, L.

Brooke of Cumnor, L.

Hanworth, V.

St. Oswald, L.

Brougham and Vaux, L.

Hatherton, L.

Sandford, L.

Caldecote, V.

Hawke, L.

Sandys, L.

Carrington, L.

Henley, L.

Selkirk, E.

Chandos, V.

Hood, V.

Sempill, Ly.

Clwyd, L.

Howard of Glossop, L.

Sinclair of Cleeve, L.

Cottesloe, L.

Ilford, L.

Somers, L.

Courtown, E.

Jellicoe, E. (L. Privy Seal.)

Stamp, L.

Cowley, E.

Jessel, L.

Stonehaven, V.

Craigavon, V.

Kemsley, V.

Strang, L.

Crathorne, L.

Killearn, L.

Strange, L.

Croft, L.

Lansdowne, M.

Stratheden and Campbell, L.

Cromartie, E.

Latymer, L.

Sudeley, L.

Cullen of Ashbourne, L.

Lauderdale, L.

Swaythling, L.

Daventry, V.

Lindsey and Abingdon, E.

Teviot, L.

Davidson, V.

Liverpool, E.

Teynham, L.

De Clifford, L.

Lyell, L.

Thorneycroft, L.

Denham, L. [Teller.]

McCorquodale of Newton, L.

Tweedsmuir, L.

Derwent, L.

McFadzean, L.

Tweedsmuir of Belhelvie, Bs.

Digby, L.

Malmesbury, E.

Verulam, E.

Drumalbyn, L.

Mansfield, E.

Vivian, L.

Dudley, E.

Merrivale, L.

Ward of Witley, V.

Dundee, E.

Milverton, L.

Windlesham, L.

Ebbisham, L.

Molson, L.

Wolverton, L.

Eccles, V.

Monck, V.

Yarborough, E.

Effingham, E.

NOT-CONTENTS

Archibald, L.

Gardiner, L.

Plummer, Bs.

Ardwick, L.

Garnsworthy, L.

Ritchie-Calder, L.

Beswick, L.

Henderson, L.

Sainsbury, L.

Blyton, L.

Heycock, L.

Serota, Bs.

Brockway, L.

Hoy, L.

Shackleton, L.

Buckinghamshire, E.

Hughes, L.

Shepherd, L.

Champion, L.

Jacques, L.

Shinwell, L.

Cooper of Stockton Heath, L.

Leatherland, L.

Slater, L.

Davies of Leek, L.

Lee of Asheridge, Bs.

Snow, L.

Delacourt-Smith, L.

Llewelyn-Davies of Hastoe, Bs.

Stow Hill, L.

Diamond, L.

Maelor, L.

Strabolgi, L. [Teller.]

Evans of Hungershall, L.

Noel-Buxton, L.

Taylor of Mansfield, L.

Faringdon, L.

Phillips, Bs. [Teller.]

Wells-Pestell, L.

Gaitskell, Bs.

Popplewell, L.

White, Bs.

Moved, That the House do now resume.—(Lord Drumalbyn.)
LORD BESWICK: Before starting the next Business I wonder whether the noble Earl, Lord St. Aldwyn, will make it clear that we are resuming the Committee

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stage of the Industrial Relations Bill after spending one hour on the Education (Scotland) Bill.
EARL ST. ALDWYN: My noble friend Lady Tweedsmuir of Belhelvie was going to start her Second Reading speech by saying that we should discuss the Bill until 7.45 p.m.
On Question, Motion agreed and House resumed accordingly.

EDUCATION (SCOTLAND) BILL
6.47 p.m.
THE MINISTER OF STATE, SCOTTISH OFFICE (BARONESS TWEEDSMU1R OF BELHELVIE): My Lords, I beg to move that this Bill be now read a second time. The Bill restores to education authorities the power to charge fees in a limited number of schools. It has been one of the most controversial of the present Session and occupied 24 sittings of the Scottish Standing Committee which must be some kind of record for what was then only a three-clause Bill. The controversy was expected, however, because the Education (Scotland) Act 1969, which abolished the power to charge fees in authority schools, was one of the most strongly contested Bills of the last Parliament. The present Secretary of State for Scotland, then leading the opposition to that Act, promised that in due course there would be amending legislation to repeal the relevant part of the 1969 Act. Those Members of your Lordships' House who attended the Committee stage of the 1969 Bill will recall that some Amendments to the Bill were made which proved unacceptable to the other House. When the Commons Reason for Disagreeing to the Lords' Amendments was reported to this House my noble friend Lord Drumalbyn repeated the pledge given by the then Opposition in the following terms:
"When the Party to which I belong is returned to power we shall restore the position to what it is now, if it is practicable to do so and, of course, if the education authorities so desire."—[OFFICIAL REPORT, 24/7/69; c. 1168.]
That promise was made on July 24 1969. Since then there have been many discussions about the future of the former fee-paying schools, but they have remained selective and have not been included in schemes of comprehen-
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sive reorganisation. The first of my noble friend's conditions, that it is practical, is therefore met.
The second condition was that the education authorities should desire a restoration of the previous position. Consultations were carried out with the local authority associations in September last year. The Association of County Councils made no comment. The Counties of Cities' Association left it to individual cities to reply. The two largest, Edinburgh and Glasgow, made it clear that they would welcome the opportunity to charge fees. This Bill therefore honours the promise made in 1969. However, last week, its noble Lords will no doubt know, the composition of Glasgow's Council changed somewhat. Although this change may prove to be but fleeting, statements have been made to the Press that Glasgow Education Authority may not, after all, use the powers in this Bill, when it becomes an Act. But whether they do or not, the Bill restores in some measure the true relationship between the Secretary of State and the education authorities. The present Government do not with to impose any particular form of school organisation. We believe that education authorities must know local conditions best and, most important, the wishes of the parents in their area. Therefore this Bill restores the former right of authorities to charge fees if all concerned wish this to be done.
I turn now to the Bill itself. Clause 1 substitutes a new Section 3 for Section 3 of the Education (Scotland) Act 1962 as set out in Section 1(1) of the Education (Scotland) Act 1969 which amended it. Section 1(1) of the 1969 Act substituted new sections for Sections 1, 2 and 3 of the 1962 Act. We have no wish to replace the new Sections 1, 2 or 3A which are set out in the 1969 Act. We do, however, want to repeal Section 3 and replace it by a very different one. This is what Clause 1 does. Subsection (1) of the new Section 3 qualifies the general statement that school education should be provided by an authority without payment of fees and makes it subject to subsections (2) to (5). Subsection (2) empowers an authority to charge fees for school education in a limited number of schools. Subsection (3) is a new provision which allows an authority to give remission of

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fees in whole or in part. Such remission is to be related to ability and aptitude. Remission on grounds of hardship can be covered by an existing power in Section 49 of the 1962 Act.
Subsection (4) lays down the condition which has to be satisfied before fees can be charged. This is in response to representations from the Opposition in another place, and it is similar to the 1962 Act in that the charging of fees should be without prejudice to the adequate provision of free school education. Free school education can be provided in an authority's own school, by agreement with the managers of grant-aided or independent schools, or, by agreement with another authority, in their schools. Subsection (5) which is a new provision, provides for the charging of a higher fee in respect of a pupil from outside an authority's area attending a fee-paying school and also for the charging of a fee in respect of a pupil from outside an authority's area attending a non-feepaying school. Subsection (6) repeats the substance of the latter part of Section 3 set out in the 1969 Act. This subsection enables an authority to make charges for the use of facilities for voluntary further education and for social, cultural and recreative activities.
Clause 2 of the Bill amends subsection 1 of Section 11 of the 1962 Act, as amended by the 1969 Act. The new amendment places a duty on the authority to provide free books only when pupils are receiving free education. Individual authorities will be able to decide whether or not to give free books to pupils at fee-paying schools.
Clause 3 gives the Secretary of State power to vary a rate support grant order made before the coming into force of the Act by taking into account any income accrued or relief from expenditure obtained by authorities as a result of the corning into force of the Bill when enacted. This clause was added during the Report stage in another place, and was a consequence of the meeting which the Secretary of State had with the local authority associations about the Rate Support Grant Order 1971. As the Explanatory Memorandum to the Bill makes clear, the saving will be small; but it is right, of course, to take it into account for rate support grant purposes.
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Clause 4 is mainly in standard form and does not require much explanation. I should, however, like to say a few words about subsection (4) and to describe the procedure that will be followed before the charging of fees can be restored. Under the 1962 Act, authorities are required to exercise the powers and duties conferred in the first few sections in accordance with schemes prepared under Section 7 and approved by the Secretary of State under Section 70. The schemes dealing with school education are known as schemes of educational provision. No scheme of educational provision can at present provide for fee paying in authority schools, and therefore before fees can be restored a revised scheme, or the modification of an existing scheme, will have to be submitted to and approved by my right honourable friend the Secretary of State.
My Lords, the Bill, if enacted, will not come into force until August, 1971. There is no reason, however, why authorities should not undertake the necessary preparatory work, after the Bill has been passed, to restore fees in the Session 1971–72. That is why Clause 4 allows the submission of modifications to schemes between the passing of the Act and August 1, when it should come into force, and allows the approval of the Secretary of State in that period although the approved scheme cannot take effect until August 1. This Bill restores the power to local authorities to offer to parents greater freedom of choice in the education of their children, and it is for this reason that I commend it to your Lordships.
Moved, That the Bill be now read 2a.—(Baroness Tweedsmuir of Belhelvie.)
6.58 p.m.
LORD HOY: My Lords, for quite a while I wondered whether the Government were going ahead with this Bill, because, quite frankly, after it is passed it is not going to have very much effect in Scotland, if any at all. But inasmuch as it has been introduced as a Bill into your Lordships' House, we have to deal with it as if it may become an Act of Parliament. I should like to take up the last point made by the noble Baroness, Lady Tweedsmuir—in fact very nearly her concluding sentence—when she said that what the Government are doing in

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this Bill is to restore freedom of choice. Of course she knows as well as I do that they are doing nothing of the sort. There is no freedom of choice, first of all, because these schools are limited to very few pupils—very few indeed—and it can be only by a form of selectivity that pupils can gain admission to them. Even if they are sufficiently, good, they have to pay the fees, so that only those parents who can afford to pay will in fact have the choice of sending children to these schools. They will not be misled by the whole series of means tests which the noble Baroness mentioned, either as to school fees or school books, because we feel that this is against the whole system of Scottish education.
This Bill aroused considerable dissent when it was introduced in another place, and the noble Baroness was quite right in saying that it took some 24 meetings of the Scottish Committee to get it through its Committee stage—I think rightly so, because there is a considerable history behind the Bill. In fact it seeks to repeal legislation enacted as recently as 1969. The noble Baroness said, "Of course, your Lordships know that legislation was before your Lordships' House; we passed a series of Amendments which did not prove acceptable in another place." This is true, but I think the noble Baroness will concede that those in another place who rejected the Amendments have a considerable knowledge of corporation schools and education which apparently is denied to most noble Lords and noble Baronesses on the Government Benches to-night. I question very much—I do not say it disparagingly—whether there is a single noble Lord sitting on the Government side of the House who has had a comprehensive education in a corporation school. But that is the subject this House is discussing, and perhaps for that reason the other place rejected the Amendments of 1969.
The noble Baroness then presented what I thought was one of the weakest parts of her argument for the Bill. She rightly reported—I admit it—the opinions expressed by local authority associations in Scotland. One of them did not pay the slightest attention; I do not think they even bothered to reply. The second one said to the Government, "We are going to do nothing about it; we will just let everybody decide for themselves."
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So the Government fell back on the argument that there were still two authorities left that might want to take advantage of these proposals. One was Glasgow. But the noble Baroness has had a very firm assurance that neither the Corporation of Glasgow nor the electors are going to have anything to do with this idea. This, I think, she will admit, and I am sure that there is no noble Lord who would care to deny it. Whether we like the local government election results or not, they have put paid to this particular proposal.
My Lords, I want to say something more about the Glasgow position. The noble Baroness said there was no reason why local authorities should not go ahead with their provisions now, in case this Bill becomes an Act of Parliament. But she is bound to know, as well as any Member of your Lordships' House, that this is exactly what Glasgow have been doing, without an Act of Parliament, even before we had a chance to debate the Second Reading of this Bill. The Corporation, or the Council, of Glasgow, which has just been thrown out, had made all these preparations, despite the fact that there was no Act of Parliament, that no Bill had received a Second Reading in your Lordships' House. They did not wait for the gun. They went ahead, apparently with the approval of the Scottish office, preparing plans in accordance with an Act of Parliament which did not exist. I do not regard that as being very smart, though it is true they would have had to wait until an Act came into existence before they could put their plans into effect. They hoped, I suppose, that they would get away with it, but the Glasgow electorate thought otherwise.
That leaves one city, Edinburgh. I would remind your Lordships that there is not a single authority in Scotland who adopted this procedure—not one; and not even before Glasgow and Edinburgh were deprived of it were there any local authorities in Scotland who had this type of fee-paying school, or any other type. The noble Baroness will remember that clarion call from the Highlands of Scotland by the late Alasdair Mackenzie, who knew much more than most people about education. The one thing that he rejected out of hand was the very idea fees should be imposed if the children of Scotland were to be educated. He found the whole

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idea repugnant, and it is to his credit that he said so in very firm language. So none of your Lordships on either side of the House has thought this system such a good one that he wished to incorporate it in his own education authority.
If these are the facts, my Lords—and they are—what comes before your Lordships' House to-night is not a Scottish Education Bill but a Bill to deal with the problem of Edinburgh, which is the only place that can be affected. I suggest to the Government when they talk about a waste of time, that surely it is a waste of time to bring in a Bill—and call it a Scottish education Bill—when it can affect only the City of Edinburgh. If the Edinburgh City authorities are so enthusiastic that they want to introduce this system, they have a remedy; they can promote private legislation and say, "We, the Edinburgh Corporation, desire to impose fees, and we want the authority of Parliament to do so ". But Edinburgh is the only place that can be affected, and, I repeat: there is not a single noble Lord who can deny that. I would remind your Lordships that Labour is the largest Party in the City of Edinburgh, and that there would have to be a combination of what are known as the Progressives with the Tories—and they are not seeing eye to eye at the present moment—for any success to be made of this. Against that we have three very distinguished Liberal councillors from Merchiston Ward in Edinburgh, one of whom has just removed the City Treasurer from office, so I think that we could count on them. So the division in Edinburgh is very narrow indeed. I hesitate to think of Edinburgh even wanting to take steps to bring this into operation.
What is the reason behind the Bill? The noble Baroness said, "We gave a pledge". But Governments, of course, say things in the course of a propaganda campaign. The Prime Minister said he would bring down unemployment and cut prices at a stroke, but he has not done so; he has not honoured that pledge. I am certain that your Lordships would greet it with great enthusiasm if he did, and we should be unanimous in supporting him. What does the Bill do—if it does anything at all? Let me remind your Lordships, if you need reminding, that in another place the Bill was de-
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scribed from the Liberal Benches and the Labour Benches as a mean, petty, contemptible little Bill. What the Government are seeking to do is to take education years and years back, and to say to the parents of a certain number of children, "Unless you can pay, your children are going to be denied this piece of education".
There is something more than that, because what it does is to preserve selectivity in education; it is a blow to comprehensive education. That is the main purpose of it. If the noble Baroness, Lady Tweedsmuir of Belhelvie, is unaware of the fact, let me remind her that it was not the Labour Party, or the Liberal Party, but the Comprehensive Schools Committee which had this to say:
"Comprehensive schools get rid of selection. Children are no longer labelled a success or a failure at 11 years of age."
I would remind your Lordships that this could mean selection not at eleven but at five years of age. I do not think that the noble Lord, Lord Balerno, would deny that. With his knowledge of these schools in our area he knows that selection takes place at age five. The Comprehensive Schools Committee Report puts it up to eleven. The Report goes on:
"Comprehensive schools offer children a greater variety of courses of subjects and a wider choice of educational opportunities than they have under the old system."
It is the old system to which the noble Baroness and the Government wish to take us back.
This is a little Bill, and it is a mean little Bill. I do not think it will have any real effect in Scotland. Obviously it cannot have. The noble Lady must be aware of that, it simply cannot have any real effect. If it has got any hope of it at all—and that hope is very little indeed—it can only be in the City of Edinburgh; and if that is all it seeks to do, then let Edinburgh accept its own responsibilities. If we were not in the habit of not dividing on Second Reading I would certainly have asked my noble friends to show their contempt for this little Measure. I express my regret to the noble Lady that she should have the job of introducing this Bill. I am certain she is not proud of it, but she puts on a very good face as a Minister,

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as I have known throughout the years. But she is not proud of this one; she certainly is not. If it were not for the rule, then I would willingly go into the Lobby and throw this little thing into the river.
7.11 p.m.
LORD BEAUMONT OF WHITLEY: My Lords, I hope your Scottish Lordships will forgive me for intervening. As I think you know, the noble Viscount, Lord Thurso, would have liked to be here, but he was unable to arrange to be here after business was changed to put this Bill in this place. He had intended to speak on it, and I feel I must say a word. I think, and hope, that what he would have said would certainly be in line with what my friend David Steel said in another place, and the late Alasdair Mackenzie said on the 1969 Bill, and I recommend to your Lordships his speeches on that occasion. I have been doing my homework and looking through them on Committee stage, arid I think they were probably the finest speeches of his career. I suppose there is one thing that we can say about the fact that the Conservative Party in this House are putting this Bill through: that, thanks to the noble Baroness, Lady Tweedsmuir, they are not open to the gibe that was always made in another place, that all the proponents of the Bill actually went to Eton.
The truth is that this Government have no real mandate in Scotland to put this Bill through. It reverses an Act put through by the Labour Party when the Labour Party had a majority in Scotland itself, as well as in Great Britain as a whole, at the 1966 Election. In the 1970 Election the Labour and Liberal parties have a great many more seats than the Conservative Party—and although this is distorted—and I admit this to the noble Baroness—by our idiotic rating system, even on the basis of votes there is a majority against the Conservative Party in Scotland. Luckily, as the noble Lord has pointed out, the effect of this Bill in Glasgow is likely to prove nil. If the results in Edinburgh are anything to go by—and I thank the noble Lord for his kind reference to our success in Edinburgh—perhaps in Edinburgh it will not last very long.
The effect of it would be to keep certain schools, now in Edinburgh only, on
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a fee-paying basis, or to put them back to being on a fee-paying basis. These schools become schools which can be entered by paying, and also, for a few children, by scholarships, by passing examinations. They have a slightly higher teacher/pupil ratio than the other schools in Edinburgh. It is not very great, but I think it is significantly so. That must mean that in some sense the mere fact of putting these schools into a separate category, making them scholarship schools, does make other schools second-class schools—not that they are necessarily worse schools; but in the public eye it puts them as second-class schools. It produces a situation where you get selection at the age of 5. It produces a situation where you can buy your way into a school. England abolished fee-paying schools within the State system in 1944. Scotland abolished them in 1969.
We are told that the purpose of this Bill is to enlarge parental choice. My Lords, I cannot take this seriously. I may not be a Scot, but I am a spokesman on education. The whole problem of parental choice is an enormous and extremely serious one, and I would strongly welcome moves to tackle the problem of parental choice. To pretend that this Bill really extends parental choice, except in the tiniest little way, is not really fair to the vastness of the problem which needs to be tackled. It is a reactionary Bill, it goes against most modern educational thought. As it affects the younger children, I would go flat out and say it goes against all modern educational thought, and it is I think very sad that it has got as far as it has done. I do agree with the noble Lord that, if it was the custom of your Lordships' House, I would feel very strongly that we ought to divide.
7.19 p.m.
LORD BALERNO: My Lords, I was interested in what the noble Lord, Lord Beaumont, said about getting a mandate from Scotland for this Bill. True, the Labour Party polled more votes than the Conservative Party at the last General Election, but the reason they obtained such a disproportionate number of seats was a failure to redistribute the seats as should have been done at the right time. There was an element of gerrymandering which was extremely helpful to the Labour Party at the last General Election, but luckily just not quite

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enough. The assertion that the majority of the Scottish people are against the proposal in this Bill requires some examination, because it cannot be said that the Labour Party in Glasgow are unanimous on this point. There have been quite a number of members of the Labour Party in the Glasgow Corporation who in past years have voted against the majority of the Party in this particular respect.
I would like to take up the noble Lord, Lord Hoy, on the question of preserving selectivity at the age of 5. You may be selecting for something at the age of 5, but I do not think you are selecting or failing to select for the same things as you are trying to select for at the age of 11. It might have been more honest, if there were other reasons, than selecting for IQ at 5, which is what I take to have been implied. As the noble Lord, Lord Hoy, continued by saying that this was a blow at comprehensive education, I would suggest that my noble friends on these benches are not against comprehensive education as such—there should be some comprehensive education—but what we are against is universal comprehensive education. That is the point which the noble Lord, Lord Hoy, did not make.
LORD HOY: Would the noble Lord allow me to intervene? When he uses that argument, I hope he will remember that, out of all the thousands of school children in Scotland, this can only affect 12 at the most.
LORD BALERNO: Did the noble Lord, Lord Hoy, say twelve school children?
LORD HOY: I said, of all the thousands of children who go to school in Scotland, this can only affect 12,000.
LORD BALERNO: Are 12,000 school children unimportant? Twelve thousand school children in Scotland are important, and they are worth paying attention to.
My Lords, I wish to approach this from a different angle from the noble Lord, Lord Hoy, and the other speakers. My Lords, variety is the spice of life. It is also the essence of education, and this is true in respect of the method or the system of education as well as for
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the individual scholar. Variety of methods and variety of ethos in different schools are essential for the discovery and elaboration of new methods and of new ideas. Experience has shown that many ideas in education do not work as the idealists claim. For bad ideas, there must be an opportunity to prove that they are bad; and good ideas must be tested against the different systems, otherwise the failure may be due to their being just ahead of their time. And that is what this Bill is all about—to maintain variety in education and so make progress in the methods of education.
Now for the other virtue of variety in education. It is a basic concept that opportunity be given to the individual boy or girl to develop his or her peculiar talents. While the local school usually caters pretty well for the majority of children, there is always a minority—it may be only 12,000—to whom it does not give fair opportunity. Where the local education authority agrees that there is such a minority, and that the opportunity for them can best be developed by continuing one or more of the old fee-paying schools, then this Bill permits the continuance of a very long-established policy.
This is the bicentenary of the birth of Walter Scott. Without decrying his natural genius, it is no exaggeration to say that what made it flower was his education at the Royal High School of Edinburgh, under the most enlightened and progressive educationist of his time in the whole of the United Kingdom. Unless Parliament passes this Bill, this great school, with its great tradition, not the least in experimentation in methods of education, will be levelled down. Not for a moment am I claiming any superiority for the Royal High School over any other form of schooling. What I claim is that it is different and that the difference should be preserved. And how different can a school be, which has produced on the one hand, Lord Chancellor Brougham, the most colourful of all Lord Chancellors—at least until the present noble and learned Lord who occupies the Woolsack—and at the other extreme, Alexander Graham Bell—three men of great genius and how varied ! It is just because the Royal High School is so different that it has made such a

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significant contribution to the welfare and the pleasures of mankind. I most proudly support my noble friend Lady Tweedsmuir of Belhelvie and ask your Lordships to give this Bill a Second Reading with acclamation.
7.23 p.m.
BARONESS LEE OF ASHERIDGE: My Lords, as I believe that the principle of diversity and experimentation in education is crucial, I should like to say to the House that I believe in many different types of school. I believe that there are children who have special talents in one direction or another and who are having their opportunities destroyed, to the great loss of society. I can remember being told by the Director of Education for Leicestershire about a youngster who was in the bottom class in a secondary modern school. It was not considered that the likes of them should have a string orchestra, but they were tried out with wind instruments. When the youngsters were asked if they would like to join the band, one hesitant hand went up from the bottom of the class, the hand of a boy who thought he might have a go at the trombone. He was given a start, and he proved to be an exceptional musician. Obviously, at a secondary modern school he was not going to have a chance, and so (I hope that I am not being indiscreet in saying this) the director of education and the headmaster of the local grammar school went into an honourable conspiracy to move the boy to the grammar school, in order that he could get ahead with his musical education. It was assumed that he was not able to pass his "O"-level examinations: they were not concerned about anything else. The sequel was that this boy became quite brilliant in all the other subjects, as well as in music, and he is now one of our leading musicians.
I feel strongly that we ought to be able to give children specialised types of education where they have specialised talents. That is one reason why I thought the public school system had a great deal to commend it. But I can also tell your Lordships what is wrong with it. It readily took in the bright boys as well as the dull ones, those interested in sport and those interested in academic subjects. It did not humiliate one or the other. They all wore the same uniform, had the same standard of life, came from the same sort
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of family, and they all went their different ways. The only thing wrong with the public school is that it is for a small minority of children of wealthy parents.
I believe strongly in diversity and experimentation in education—but that is not what this Bill is about. I am not only a Scot; I suppose that I am also a pedantic Scot, and particularly pedantic about constitutional matters. I think it is quite wrong for your Lordships' House to vote against the Second Reading of a Bill that has been passed by the elected Chamber, and therefore I agree with my noble friend Lord Hoy that we will not vote against the Motion. However, I hope that no one will underestimate just how strongly some of us feel about an attempt to perpetuate something which has nothing to do with experimentation and diversity in education, with trying to help children with special gifts or with special difficulties, but is simply seeking to perpetuate a monied and class selection, which is hard for the children who are selected for these schools and harmful for those rejected. Therefore, although we cannot win the votes in your Lordships' House, there should be no doubt whatever of our strong feeling. What we want is a broad highway, along which all our children can go forward together and then there should be diversification in their education according to the qualities of the children and not according to the size of their parents' purses.
7.29 p.m.
LORD RITCHIE-CALDER: I did not mean to intervene in the debate, not having put my name down, but may one comprehensive school pupil from Scotland follow another comprehensive school pupil? I think we have misunderstood the term, because we thought it began with John Knox. Although I come from Forfar Academy, I do not want to follow the noble Lord, Lord Balerno, in citing names but I wonder what our roll can show against a Lord Chancellor, Sir Walter Scott and Bell—though do not let us Forget that Bell emigrated; he was a brain-drain. I think that this is a pretty futile exercise. After all, Robert Burns did not go to the Royal High School.
This seems to me, as my noble friend Lord Hoy said, one of the meanest Bills I have ever heard of. I had imagined that a battle was being fought on something to which we might have given

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our great minds; but in point of fact, as has been said, we are talking about a private education Bill for the City of Edinburgh. Therefore, as my noble friends Lady Lee of Asheridge and Lord Hoy said, in not voting against this Motion for Second Reading I should not like any noble Lords to have any doubt about the feelings of some of us who happen to have as high a regard for the highest ideals of Scottish education as anyone else in this House. If we do not divide the House, I hope that it will not be misundertood.
7.30 p.m.
LORD STRATHCLYDE: My Lords, I should like to intervene, but I shall do so quite briefly, due to the shortage of time. Without this Bill fee paying schools in Scotland would disappear altogether. There is an opportunity, at least for Edinburgh, to continue to have fee paying schools should they so desire. When my noble friend Lord Hoy (I call him my noble friend, because I have known him and debated with him for so many years) was speaking, it was as though this fee paying business was something absolutely new. But it has been going on for some hundreds of years. The High School at Glasgow has been in existence, I understand, since about the year 1200. These schools have produced many remarkable people. The Glasgow High School has produced two Prime Ministers this century. The school I was at—it was not a corporation school, but it was a fee paying school—has produced seven or eight Members of this House of my generation. That is a pretty good effort for any school.
It seems to me that when the noble Lord, Lord Hoy, said—unless I misunderstood him—that fees were imposed on people, he was quite wrong, because they are not imposed at all. They send their children to the schools well knowing that they are going to pay fees. If you go back in Scottish education, the village schoolmaster used to be paid by the pupils. You went with your money and paid the schoolmaster on quarter day. I remember my own father telling me the amount of money (I will not repeat what it was) which he was given every quarter day to hand to the schoolmaster. You might think that this is a great innovation, but it is
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nothing new. Why take away from people the opportunity of doing something that they want to do? I do not understand it. I strongly agree that unless you have some difference in the schools of the country you are bound to get a kind of settled, stiff, unalterable syllabus put up year after year, and it seems to me that this would defeat the whole object of education. I strongly support my noble friend Lady Tweedsmuir in putting this Bill before the House.
7.34 p.m.
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I should like to thank all noble Lords on both sides of the House who have taken part in the debate. Although the speeches have been short because of the pressure of time, and however strongly views are held for or against the Bill on either side of the House, I think we should all agree that it has been a good debate. I should like to say to the noble Lord, Lord Hoy, with respect, that I did not think he was quite on his usual form, because for him to say that this Bill was not worth while because it applied to only a very few pupils was unlike his usual sense of fairness. I should have thought that 12,000 pupils whose parents wish of their own free will to pay fees were worth caring about.
LORD HOY: My Lords, I do not want the noble Baroness to misunderstand me. She was arguing that this left freedom of choice for the people of Scotland. All I was pointing out was that it did nothing of the kind, because at the most it could affect only 12,000 children out of the total school population for Scotland.
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, it is perfectly true that at this moment of time only the two largest cities in Scotland have said that they wish to take advantage of this Bill and, as my noble friend Lord Balerno pointed out, the members of the newly-elected Corporation of Glasgow are by no means unanimous one way or the other. But the point is that this Bill provides an element of choice for everybody if at some time in the future they wish to exercise it.
The noble Lord, Lord Hoy, said: "Why take us back to the old system?" The old system was in 1970. Therefore I

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do not think it was very old. He also suggested that noble Lords on this side of the House had not perhaps had the advantage of going to some of the comprehensive schools in Scotland or the fee paying schools. My noble friend Lord Strathclyde has just given his example. While I myself did not go to a comprehensive school—nor, happily, did I go to Eton—because I was unable to, having a father in the Army, nevertheless I have two girls who were at the Aberdeen High School for Girls now called the Harlaw Academy; and very good it was. Therefore, I have seen both sides of the coin, fee paying and non-fee paying.
The noble Lord, Lord Hoy, said: "Why have the Government produced this Bill? They did it because it is the kind of thing that Governments do in a propaganda campaign." That may be something that his Government did, but when we say we will do something, we do it.
LORD HOY: What about prices and employment?
BARONESS TWEEDSMUIR OF BELHELVIE: That is coming. The noble Lord, Lord Beaumont of Whitley, made an interesting point about the fee paying schools having been abolished in England in 1944. I should like to return to that in a moment. I think my noble friend Lord Balerno was absolutely right, with his great knowledge of education, to say that we want to have all types of education within the Scottish system. The noble Baroness, Lady Lee, said that she felt very strongly indeed, and said that this was a money and a class-selective Bill. But it is odd (is it not?) that there are still people who are prepared to pay the modest fees ranging from £10 to f40 with which we are concerned here to-day? There may be some that charge more, but I do not think their fees will be very much more, because many of these schools have kept their fees steady for about ten or twelve years. The noble Lord, Lord Ritchie-Calder, also spoke of the question of how this type of fee paying school had been abolished in England.
It is of course true that fee paying at local education authority schools in England was stopped in 1944 under the Education Act introduced by my noble friend Lord Butler of Saffron
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Walden, whereas the Bill introduced in 1945 by the late Mr. Tom Johnston, which became the 1946 Education (Scotland) Act, provided for the continuance of fee charging at a limited number of education authority schools. Surely it is clear, therefore, that there must have been something in the educational systems of the two countries which caused these two distinguished men to appear on what would generally be regarded as the "wrong", or perhaps the unexpected, side over this issue of fee paying.
It is perfectly true that we have kept the system because we feel that it is what is called a middle sector of educational choice, which the education authority fee paying schools offered to parents in the Cities of Edinburgh and Glasgow right up to 1970. They were more than just City schools. They offered this choice to parents from a wider region surrounding the Cities. In my view, if I may say so, the Labour Party in Glasgow acted very responsibly and recognised the valuable part that these schools had to play in the city's and the country's education system in their consistent decision over twenty-five years from 1945 not to abolish fee paying school. It is surely on of the strengths of the Scottish education system that it has been allowed to develop without having to copy all the features of the English system. It would be a mistake to argue that what was right for England in 1944 must necessarily be right for Scotland to-day.
I would only say, in conclusion, that I feel strongly about this Bill. The positive argument for it is that it restores to education authorities the freedom to offer to patents of relatively modest means the opportunity to exercise some choice in their children's education in return for a modest financial contribution. We are not talking about the fully independent schools or indeed the grant-aided school. The 1969 Act, in taking away this freedom from authorities, did not affect the rich or the comfortably off who could afford the fees for independent or grant-aided schools. It was picking on the most vulnerable group who had chosen to contribute to the cost of their children's education and removed their choice to do so. It seems to me that where authorities decide to make use of the power in this Bill they will be

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opening up again the possibility of choice of school for a wider range of the population of Scotland, and it is for that reason that I commend this Bill to your Lordships' House.
LORD HOY: Before the noble Baroness sits down, I think she said that parents would be making a contribution. Is it not a fact and did she not explain—perhaps I misunderstood—that, because these schools will now charge fees if they choose to charge fees, so automatically will the Scottish Office reduce the education grant to them?
BARONESS TWEEDSMUIR OF BELHELVIE: My Lords, I made that perfectly clear. It is in Clause 3 of the Bill. It affects the rate support grant and this has been done after consultation.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

INDUSTRIAL RELATIONS BILL
7.43 p.m.
Committee stage resumed.
Clause 10 [Agency shop agreement]:
BARONESS WHITE BARONESS WHITE moved Amendment No. 74:
Page 8, line 20, after ("unions") insert ("or other independent organisations").
The noble Baroness said: Throughout the Bill an attempt is made to distinguish between registered and non-registered unions, and one of the main reasons for this particular Amendment is to safeguard the position of a trade union which, for reasons which seem good and proper to itself, may have decided not to register. Therefore we feel that it is extremely important from our point of view to make sure that there is a place for other independent organisatons of workers.
LORD DRUMALBYN: If the noble Baroness will forgive me, I suggest that it would be convenient to discuss a whole host of Amendments at the same time as this one. I count 29 Amendments with exactly the same words. There are also scattered through the Schedules and in Clause 10 and Clause 16 many others that all hold together. I wonder whether it is the noble Lady's intention
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that we should discuss the principles of these together. If she wishes to take them separately for a Division later that would be in order.
BARONESS WHITE: In the light of the request made by the Minister it may perhaps be convenient to have a more general discussion on this particular Amendment. He is perfectly correct in saying that there is a series of subsequent Amendments which touch on the same point, mostly in the same words, though in one or two places we use slightly different phraseology. If we are going to have this more general discussion—and we have no objection to that—I think in the circumstances, I having moved this Amendment, I will ask my noble friend Lord Delacourt-Smith to carry on the discussion. If we are going to have the general discussion in this particular place in the Bill it may be more appropriate for someone who is himself a general secretary of a notable trade union to put the major points and the general philosophy behind these Amendments.
LORD DELACOURT-SMITH: As the noble Lord, Lord Drumalbyn, has pointed out, this Amendment is the first of a series of Amendments of considerable importance. The general intention of these Amendments is to introduce into the Bill a greater degree of parity of esteem, if I may so call it, between the trade union and the independent organisation of workers. We all know, of course, that a trade union is an organisation of workers, but it is an organisation of workers of a special type; it is an organisation of workers which has been registered. I do not think there will be any dispute by noble Lords opposite that it has been the purpose, is one of the intentions behind, and is one of the leading features of this Bill, to try to place the trade union—I use the term as it is used in the Bill, as a registered organisation—in a preferential position compared with the unregistered union. We are, in this series of Amendments, calling that into question and indicating to the Government that we believe that their action in imposing registration in this way and giving so much in the way of advantage to the unions who have gone through this process, is not justifiable. It is, of course, in effect. a completely new feature of our industrial relations law.

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It is true that we have a Registrar of Friendly Societies and that we have registered trade unions and unregistered trade unions; but the distinction, for practical purposes, between a registered and an unregistered trade union as our law at present stands, is a very small one. The purpose of the Government in widening the gap, in making such a great distinction between these two types of organisation, is to induce trade unions to place themselves under conditions of registration. That, I think, is a course which requires much more justification than the Government have hitherto seen fit to advance. As at present a trade union establishes itself, secures its credence and secures its position by what it does, the service which it gives to its members and the recognition which it wins from employers. It is an organisation which, subject to the supervision of the Registrar of Friendly Societies, develops its own rules and conducts its own affairs. It is no part of our case, and it never has been, as the noble Lord opposite will know, that there is no need for any changes in the industrial relations arrangements in this country. It is one thing to accept the necessity for change in industrial relations and in the organisation of trade unions, but another to accept the code which is now before us and, as part of it, the requirements to which we are particularly addressing ourselves in this Amendment regarding registration.
There are few parts of the controversy surrounding this Bill which illuminate more clearly the unfortunate approach of the Government than does this matter of registration. The Donovan Commission examined the question of the rules of trade unions and made a series of comments upon them. There is no justification for saying that the Donovan recommendations justify the kind of detailed regulation of the internal affairs of trade unions by the Registrar which is proposed in the Bill. The Donovan Commission made recommendations for certain changes; they recommended a review body which should stand between the trade union movement and the Registrar. There is nothing of this in the Government's proposals.
The framing of the Bill by the Government has ignored the efforts which were undertaken by the trade union movement
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itself in the period following the presentation of the Donovan Report to effect reform in its own structure. The proposals put forward by the Government ignore this fact, as (and it is one of the defects throughout the Bill) they ignore the part which the Trades Union Congress should play in any reform of the trade union movement, particularly so far as its internal arrangements are concerned. The trade union movement in this country has grown up on the basis of establishing itself with its members and with the employers. The clauses which we are now embarking upon, and in which we are seeking to put an unregistered organisation of workers on the same footing as a registered trade union, are clauses in regard to which it is essential that an organisation of workers should demonstrate by its functioning and working that it is suitable to carry out its representative and collective bargaining functions. This is not a matter which to such a great degree should be in the hands of a Government official as is proposed. The failure of the Government to appreciate the feelings of the trade union movement on this issue of registration is one of the clearest examples of their failure to come to grips with the realities of industrial relations. They have not appreciated that such a great degree of technical regulation and detailed regulation by the Registrar of Friendly Societies is almost bound to do far more harm than good, and will impose far more impediments and hindrances on the proper functioning of the trade union movement than it will confer advantages, either on the movement or the public.
There is only one field at the moment in which trade unions are subject to the detailed and meticulous regulation of the Registrar of Friendly Societies, to the kind of detailed, meticulous regulation of their affairs which, as I read the Bill, will now extend to all of them to the full extent of their affairs. That area is related to the administration of political funds, and certainly to the holding of a ballot to establish political objectives and to write political rules into the union rule book. When one has to go through this process (and I have personal experience of having gone through this process not so many years ago) one realises the degree to which the activities of a union

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can be held up on a pure technicality if any individual member is disposed to raise it with the Registrar.
I recall the case of the taking of a political ballot to establish political objectives. In one branch there had been what everybody concerned recognised to be a purely technical infringement of the rules, undertaken quite honestly with no member having suffered any detriment, and with no question of the purpose of the rules having been disregarded. But the validity of the whole ballot was called into question by a member who raised an objection. It is true that the Registrar, having investigated this case, concurred in the view that it was an infringement which was purely technical and should be overlooked. But it caused delay and a considerable amount of union officers' time was spent in the investigation and in the appearance before the Registrar. It gave a graphic indication of the kind of practical difficulty which trade unions are in danger of experiencing when this extremely detailed control of the Registrar can be applied to the whole range of their diverse activities. It is not purely on some speculative or highly hypothetical grounds that trade unions deplore this particular feature of the Bill.
There can be no doubt that to subject trade unions to this degree of meticulous regulation is out of keeping with what one would expect in the light of the tradition and history of the British trade union movement. Perhaps I can illustrate this by quoting a resolution which was adopted by the Executive Board of the International Confederation of Free Trade Unions—an international organisation of trade union movements which covers virtually the whole world outside the Soviet and Chinese areas of influence. The view which they expressed was one of deep concern at the proposals in the Bill. They said that the Bill now before us would:
"… restrict the free exercise of trade union rights and impose penalties and requirements on trade unions, their officials and members, which were without precedent in Britain. The British trade union movement was among the oldest and most mature in the world. It was respected in every continent for its responsible and tolerant approach to the many problems of relations with Government and employers and thus had become a model for democratic trade unions everywhere."
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It is against the background of a world reputation of that kind that this Government are proposing in this legislation to subject the British trade union movement to a degree of detailed surveillance of its affairs by a Government official, which may be appropriate, understood and expected in a society which was immature and passing through very rapid change, in which there was no experience of democratic trade union organisation, and in which the trade union movement had not 100 or 150 years of experience and service to the community behind it. But it is being applied in this country. It is for this reason, and for the reasons which I have explained, that we regret profoundly the apparent intention of the Government to seek to draw distinctions between registered and unregistered unions in a way that has never been done before, with the objective of seeking to bring the whole trade union movement, if they possibly can, within registration and surveillance.
LORD POPPLEWELL: It is not my intention to speak long on this series of Amendments, but they are most important and I want to add any emphasis that is at my command to the words which my noble friend, Lord Delacourt-Smith, has just addressed to the Committee on these Amendments. Last Thursday I addressed a series of questions to the noble Lord, Lord Drumalbyn, asking him the reasons for clauses of this type in the Bill. He came back eventually with a weak answer, saying that they related to the Donovan Report. This clause of the Bill is not based upon the Donovan Report at all. It is more obviously based upon
Fair Deal at Work, a Tory pamphlet published before the Donovan Report was issued. I thought the noble Lord's answer was very weak, and I should like to repeat my questions, which are in Hansard, asking the reasons for this endeavour to separate the unions in the way these provisions will do, and which makes us seek to insert the words "or other independent organisations". This carries a very significant ring to many people who have not considered the Bill.
This type of wording is brought about, as my noble friend has said, by what is, in effect, the blackmail of the Government in compelling the trade unions to register, unless they take the distinct line that they will not register. This is something new, and undoubtedly is likely

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to harden feelings instead of healing the breach, if there is one, in industrial relations. We pleaded with the Government to be realists on this matter and to withdraw this type of provision. If they want to show any willingness to back up what the Secretary of State for Employment and Productivity has said—namely, that we have here the best trade unions in the world—why do not the Government accept the Amendments we are moving here in order to bring the whole of the trade unions into this type of structure? Separation is fatal.
There are some 500 trade unions in the country to-day, and only about 130 are affiliated to the Trades Union Congress. One can imagine when this Bill ultimately becomes an Act that, if this is the procedure adopted with regard to the voluntary trade union movement—quite a number of organisations preferring to work on their own—this trend will continue, and there will be a large number of unregistered trade unions which will be subjected to all the rigours of the law that this Bill will impose. In the final analysis this will lead to prison sentences; if there is refusal, that will be the penalty ultimately inflicted. I appeal to the noble Lord opposite to think again about this, because it is tremendously important. We should try to heal any breach which may exist in industrial relations.
8.5 p.m.
LORD DRUMALBYN: We are here at one of the key provisions of the Bill, and the structure it proposes to set up. It is only right that we should devote a little time to this matter. It is, after all, a fundamental principle of the Bill that the privileges and rights which it affords shall be restricted to those organisations which accept the requirements and responsibility towards their members of the registration provisions. The requirements of registration are not onerous, and I think the noble Lord has much exaggerated the burden they will place upon the unions. But they will ensure that the rules conform to reasonable standards.
We believe that when organisations claim to exercise considerable power in our society and economy they cannot any longer be treated wholly as private
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organisations. Exercising as they do considerable power in the community, and rightly so, it is not unreasonable to expect trade unions to accept the responsibilities of leadership and of power, and to submit themselves—as other bodies within the community and even the Government themselves do—to some degree of supervision by an independent body, to ensure that their rules are fair—fair to the members of the organisation and also in the public interest—and to ensure that the rules are observed. This is the basis of registration. Since trade unions are such organisations, and have such power, we believe it to be an absolutely essential point to the whole Bill that they accept the responsibilities as well as the privileges of power within the community.
Some people think that organisations of workers should have no privileges not enjoyed by the rest of the community; but experience and history show that the law should allow some such privileges. But legal privileges must be accompanied by legal responsibility. That is why this Bill sets out to ensure that most of the privileges are confined to those organisations which accept and observe those responsibilities. The right to enter into an agency shop agreement or, in exceptional circumstances, to obtain approval of a "closed shop" agreement, are very important privileges conferring very important powers. They place important obligations on individual workers, both union and non-union members, and affect in an important way the interests of both employers and the community at large. That is why we believe such privileges should be confined to registered bodies and should not he given to unregistered bodies. It is an absolutely basic concept of freedom under the law —freedom with responsibility—that when, as individuals or as organisations, we seek to act in a way which vitally affects the rest of the community we must be subject to some supervision and control; some limitation of our freedom is the very condition of existence and the survival of freedom itself.
What does registration involve? First, it requires the union or organisation of workers to satisfy the Registrar that it meets the guiding principles. Anyone

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looking objectively and impartially at the guiding principles that are laid down—noble Lords will find them in Clause 63—could not possibly say that there was anything unfair or inequitable about them; or, anything inequitable about requiring that an organisation of workers, in claiming the right to exercise great powers, not only over its members but in the community, should satisfy those principles, and that if it cannot do so it should not possess those powers. Any good trade union should be able, easily, to comply with those principles, and most do so most of the time.
Secondly, registration requires the union to have rules on certain subjects. When we come to examine the provisions regarding registration, noble Lords will not find that there is anything very difficult about them. It is not a question, as the noble Lord, Lord Delacourt-smith, implied, of the daily intervention by the Registrar in the affairs of the trade unions. It is simply a question of when they have to register they have to send their rules to the Registrar along with their application for registration. The Registrar will then examine those rules to see that they comply with the rules set out in the Schedule and with the guiding principles.
LORD POPPLEWELL: They do that now, do they not?
LORD DRUMALBYN: Exactly, so why do noble Lords worry so much? Or does the noble Lord mean that they have to send the rules to the Registrar now?
LORD POPPLEWELL: Yes, certainly; under the Friendly Societies Act the trade unions must send their rules to the Registrar. But this is a new type of Registrar; a new law has been created in this Bill.
LORD DRUMALBYN: In what respect is this a new type of Registrar? The noble Lord says that the rules are already sent to the Registrar. What the Bill lays down is a standard of rules by which the Registrar can judge. The Bill also lays down something suggested by the Donovan Commission: that the Registrar should receive complaints and should deal with complaints of offences against the rules. That being so, I find it ex-
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tremely difficult to see why the noble Lord, Lord Popplewell, should have taken the line that he did about this and say that it is a completely new provision and that it is contrary to what the Donovan Commission proposed. That is not so.
LORD POPPLEWELL: Surely the noble Lord is splitting hairs on this. There are so many unfair practices coming into this. There are various things which have to be settled by the N.I.R.C. and ultimately by the Commission itself. These of necessity will be the guiding principles by which the Registrar, when he is considering the rules, will have to ensure that the rules are in accordance with the guiding principles that are now something new, and have never been known before. That is the considerable difference that arises between the present structure and the new Registrar's duties that are going to be set up.
LORD PLATT: Before the noble Lord gets further into his stride, surely this is an entirely new concept for the medical profession—and presumably we are included in this. The noble Lord may well laugh, but there is a statutory body called the General Medical Council which has governed us for about 120 years. Are we now to be under some registrar? The noble Lord, Lord Delacourt-Smith, said that the British trade union movement was the most mature and responsible in the world, and he said that it is on this basis that the Government now seek to impose a detailed surveillance that has never been inflicted upon the trade unions before. Every word of that could be applied to the medical profession with even more emphasis than was employed by the noble Lord, Lord Delacourt-Smith. I hope that the Minister will address himself to the medical profession when he is replying in regard to the trade unions. Of course I speak only for the medical profession, but there are other professions involved as well.
LORD COOPER OF STOCKTON HEATH: May I also make two points? First, the test of registration will be absolutely and completely different from what it has been in the past. It is a great departure in English practice. The other point is that if you are not able to satisfy the Registrar, or if you do not wish to register, you lose a right which is over 100 years old, and I hate to lose a right.

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But the right to strike is absolutely fundamental. If you do not register you do not have the right to strike, and we have had that right without registration for over 100 years.
LORD DRUMALBYN: The noble Lord is of course quite right. As I said at the outset, the purpose here is to restrict privileges to those who will follow the rules. This is the principle of the Bill and we believe that this is absolutely fundamental to the Bill. If I may say so, the noble Lord, Lord Platt, perhaps anticipated a speech which he is likely to make later, because we are now on the narrow question of the registration of trade unions. No doubt we shall have an opportunity of dealing with that aspect on an Amendment that we shall come to before very long.
I was just posing the question as to what registration involves. First, it requires the union or the organisation of workers to satisfy the Registrar that it meets the guiding principles. The noble Lord, Lord Cooper, may say that that is something new but it is something which is not unreasonable. These are standards that the unions, at their best, do observe. There is nothing new about these standards; they are good standards and all we ask is that they should be observed.
Secondly, registration requires the union to have rules on certain subjects. Many opponents of registration have talked as though the registrar was to write the union's rules for them. That is not so. All the union has to do is to satisfy the registrar that it has rules on certain subjects, as noble Lords will see from the Schedule. The guiding principles will have to follow under the Bill. Those subjects on which they must have rules are important, and the rules on them must be clear and unambiguous. The registrar will help to make them clear and unambiguous but it is entirely up to the unions what rules they have on those subjects. Indeed, one of the criteria for registration is that the organisation should have power to alter its own rules.
What are the subjects about which they must have rules? The election of the governing body; the election and appointment of officers and shop
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stewards; the powers and duties of these officials; rules about the way the union can discipline its members; rules about the way in which the property and funds must be safeguarded. Surely, these are proper subjects for registration and supervision. The unions ought to have such rules, and most unions do have them. Let there be no mistake about it, without such rules individual members are at the mercy of autocratic officials, and unions could become the masters and not the servants of their members.
SEVERAL NOBLE LORDS: Hear, hear !
LOUD DELACOURT-SMITH: If the noble Lord will forgive me for a moment, he is telling us of a number of things that could happen. Is he saying that they have happened or are happening at the moment?
LORD HILTON OF UPTON: It is wishful thinking.
LORD DRUMALBYN: I am not saying that they are widespread, but cases have been quoted in the past of things that have gone wrong. In any case, as a matter of principle it is surely absolutely right that just as companies have to register so trade unions should also have to register in order to be brought under the general surveillance of the community.
The Government regard the question of registration as very important indeed, and so did the Royal Commission. The Party opposite may have changed their mind about the White Paper In Place of Strife, but that also provided for registration. If they have changed their mind I really think they must almost have lost their mind in this matter. The Registrar's power will not be arbitrary. He will have no power of his own to enforce his decisions. When matters are referred to him or when he initiates an inquiry and he cannot get voluntary agreement he can only operate through going either to the National Industrial Relations Court or the industrial tribunal, according to the nature of the case. At these courts anybody who objects can argue his case about what the Registrar is seeking to do. Any party has the right of appeal against the registrar to the National Industrial Relations Court or the Industrial Court, as the case may be. Registration is a

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central feature of the Bill. It is reasonable, it is democratic, because a democracy has to have laws to govern the behaviour of individuals and groups in so far as the rights of others require, and the requirements it imposes should be easily met by any trade union.
So we believe that in order to protect members of unions and to protect the public interest, the rights and privileges which the Bill provides for organisations, including the ones we have been discussing, should be confined to those bodies which accept the very reasonable responsibilities of registration. Finally, we believe that registration is very much in the interests of the responsible unions against the onslaughts of irresponsible and disruptive elements from within or from without.
LORD SLATER: The noble Lord said that registration is at the centre of this Bill and that it is democratic. My noble friends who have had long experience within the union world have already brought home to him why each trade union in this country, affiliated, as it were, has had to be registered under the Friendly Societies Act, and we who come from the trade union world have our own rules, objects and everything else attached and examined by that registrar. The conclusion I have arrived at is that this Government have no confidence whatever in the registrar who has been responsible for looking after the examination of rules of any specific union that has been operating on behalf of its people up and down the country regarding the terms and objects of that particular union. I remember as far back as the 1930s, when we had a resurvey of our own particular union in the Durham area. We spent days—I think, as a matter of fact, three weeks—as an association, while we went through all our rules, terms and objects of that particular union, and those had to be submitted to the Registrar of Friendly Societies for approval; they were submitted and accepted, and those terms and objects have worked on behalf of that membership; there is nothing wrong with it.
I begin to wonder to myself how many of the members of this Government understand what Labour relations in this country means. There are two sides
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I attached to industry. As I listened to the speech of the noble Lord, he seemed to direct his own attitude of mind against unions who are not prepared to register because they are afraid that, because of the terms and objects of their organisation, their rules will be turned down by the registrar that the Government are talking about setting up. I think it is about time that the Government underwent a little self-examination. I think it is time that the Secretary of State for Employment and Productivity—who has been attached to the old Labour Ministry and has now taken on the new mantle as Secretary of State for Employment and Productivity—along with his Civil Service staff within that huge Department that he controls, should be now looking at this thing. Instead of the imposition which they are seeking to inflict upon the trade union organisations and other organisations, it is about time that they were looking at this in another light.
What this Government are seeking to do—and make no mistake about it—is to enforce a form of imposition. You talk about freedom of opportunity, freedom to meet, freedom to associate, but one thing you are seeking to do as a Government is to do away with the right to strike, the right to withhold labour. I say to the noble Lord that this is what is behind the whole sentiment, the whole object, of this particular Bill. The young Minister may smile in regard to this, but experience ought to teach him, as it has taught me over the long years, that the attitude of the Tory Party has always been against the freedom to strike. We had it in the Baldwin era and in the Churchill era, and under this Government we shall have it if this Bill goes through.
This is one of the most dangerous pieces of legislation that could be introduced against the trade unions of this country, who have been looked upon by other trade union movements throughout the whole world as being the leaders in regard to trade unionism and in regard to the right of negotiation with employers of labour. I believe that the attitude of mind of the Government—and this is one of the reasons why I direct my criticism not so much to the Minister who is responsible for introducing the Bill and carrying it through the various stages in this place—of the Cabinet as a whole and the Government as a whole, is the

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cause of the legislation they are seeking to introduce to impose upon the organised workers of this country and the manner in which they are seeking to do it.
LORD TEVIOT: With the greatest respect to the noble Lord, I do not think he listened to anything of my noble friend's speech. He said that the registrar is going to make the union's rules. My noble friend went to the greatest length to explain that the union is going to make its own rules under the supervision or guidance of the registrar. The rest of the noble Lord's speech is the same old talk that we have had throughout the Committee stage. The unions are going to be allowed to make their own rules. This is a very democratic Bill, and my noble friend went to great pains to make this point.
LORD SLATER: May I ask the noble Lord this question. He says he has a form of association with the trade unions. What is the matter with the present setup? What is the matter with the present Registrar under the Friendly Societies Act? What has gone wrong? We have got our rules. We have worked under those rules, under that canopy, all this time without trouble, and with the right to strike, and now all that is to go by the new form of introduction by this Government.
LORD TEVIOT: I can answer the noble Lord's question very clearly; the figures of trade disputes, and everything that has happened from 1964 to 1971.
LORD SLATER: Compare it with the U.S.A. and other countries.
BARONESS GAITSKELL: I should like to make two brief comments on the speech of the noble Lord, Lord Drumalbyn. He said the Government had set out good standards and asked why should we object to good standards in industrial relations. It sounds plausible, but we can object simply because those standards are imposed from above—and this point was brought out by my noble friend Lord Slater. We do not like these good standards imposed from above.
The other point is this. The noble Lord, Lord Drumalbyn, keeps on corn-paring this Bill of the Government with
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Lord Donovan's Report. But the thing about Donovan is that the Donovan Report wishes to have nothing to do with judges, with lawyers, with courts—none of those things in industrial relations. So that to compare this Bill with the results of Donovan is really absolutely false.
8.30 p.m.
LORD HANKEY: I should like to say why I am personally in favour of these provisions. It is because I believe that they will take power away from irresponsible and, on the whole, silly or mischievous groups of militants on the shop floor who are acting contrary to the advice of the branch secretary and, across industry, contrary to the advice of excellent and responsible trade unions. The country will not stand for that any longer. I cannot understand the speech of the noble Lord, Lord Slater, who seemed to imply that everything in the house was fine; it is not. Our people will not stand for this situation. We have to do something, and I believe that the Bill will give power back to our great trade union leaders, which is where it properly belongs, and that they will set cur country on a very much better road. I believe that one of the keys to this matter is precisely the provisions about registration.
LORD SLATER: As the noble Lord has mentioned my name, may I intervene for a moment? Is it of any help to the noble Lord to say that when I was a member of the executive, the terms and objects of my association were that if a colliery came out on a lightning strike we would not meet the management until such time as the employees returned to work? That was the condition. That was the form of procedure, and that still stands. What is wrong with that?
LORD HANKEY: I am not here complaining about the unions. I am complaining about the lack of power which the unions have shown over their own members. The fact is that our industrial legislation has given immunities to any "tin-pot" group of militants which emerges. A local leader says, "Come out on strike with me, even though we made an agreement only a month ago, and I will get you an extra shilling an hour". The branch secretary says

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"Don't do anything of the sort", and if he gets them only sixpence he loses face. Neither the trade union leaders nor the branch secretaries have a chance nowadays. In case anybody should think we have not had our troubles in the unions, you have only to look back at the history of the Electrical Trade Union, to remember the tremendous job that Les Cannon had to get that union back under control. I am only sorry he is not here to-day.
BARONESS GAITSKELL: Would the noble Lord define whom he is thinking of when he says "our people"?
LORD HANKEY: I am thinking of the great mass of voters.
LORD SAINSBURY: I support my noble friend. How, in an undemocratic, unelected House can any of us get up and talk as though we represent the people? We are a non-elected Chamber.
THE EARL OF ARRAN: If that is the case, none of us has any right to speak at all.
LORD DRUMALBYN: I really am surprised that noble Lords do not welcome these provisions. What is proposed is that the responsible trade unions should have a special position. They express fear about their stability, and about the threat to stability from these provisions. These provisions will give them stability, and it will put what they refer to as "splinter unions" or "breakaways", and all the rest, at a disadvantage against them, unless of course those breakaway unions themselves will undertake the same responsibilities.
I really do not understand why noble Lords should take the view that they have. After all, the Donovan Commission was set up simply because everything in the garden was not lovely. Thus, what the Donovan Commission said on these matters is:
"The requirements as to rules of registered trade unions will henceforth be rather more extensive, and will call for more supervision on the part of the Registrar, than in the past."
Then again, on the question of individuals:
"We envisage that all complaints by individuals would be addressed in the first instance to the Registrar, who would have the duty
736
of advising complainants and of promoting the amicable settlement of the matters of which they complain."
This is not exactly the same but, so far as the rules are concerned, it is to the Registrar that the complaints will be made.
Another point that the noble Lord, Lord Slater, seemed to have overlooked is that exactly the same burden, so far as the guiding principles, is laid also upon employers' associations: it is the same for both sides. I really do not understand why noble Lords resist the requirement that everybody should have to comply with the rules that all good unions now comply with. This seems to me absolute common sense, and the only point on which we differ is the point mentioned by the noble Baroness, that she did not like this imposed from above. But in a democracy where do you impose things from? You impose things from Parliament; and this is what we intend to do.
LORD DELACOURT-SMITH: I must press the noble Lord on his contribution on this Amendment, and take up with him again some of the points which I raised when I moved the Amendment but to which he did not feel able to respond. Does the noble Lord agree that, under the proposals which he set forth so persuasively, the Registrar will have far more opportunity, and indeed far more requirement, to intervene in detailed day-to-day affairs of the union than has hitherto been the case? Does he not see substance in my point that this can give rise to a large number of technicalities being raised, to the detriment of the normal functioning of the trade unions?
LORD DRUMALBYN: I answered that point, because the Bill shows exactly what has to be done here. The Registrar will intervene if he receives a complaint that the rules have been contravened or if, in some way or another, he finds out for himself that the rules have been contravened. He will also look at any changes in the rules that may be made, just as he looks at the rules as they are sent to him in the first place. Nobody can call that day-to-day intervention, unless there are going to be complaints every day.
LORD DELACOURT-SMITH: There are 10 million members of trade unions

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and a certain number of them will not be averse to putting up some rather flimsy cases, if I may put the point to the noble Lord. Since he has risen to respond, may I put a supplementary question to him? Is it intended that the Registrar shall insist that all the procedures of the union in question shall have been exhausted before he will examine a case?
LORD DRUMALBYN: In general he will look to see that the procedures have been exhausted; that is so.
LORD DELACOUR'T-SMITH: May I then return to my second point, which I put in moving the Amendment? Have the Government not completely ignored the work of the Trades Union Congress in itself initiating a revision of trade union rules? Is it leaving no part at all for the Trades Union Congress to play in this whole question of the rules of individual trade unions?
LORD DRUMALBYN: I am not certain if it is right for us to proceed by a sort of catechism. Perhaps I was wrong to answer the first question, but it seemed to me so fundamental, and as I had omitted to answer it, I thought it had better be done.
LORD DELACOURT-SMITH: I thought the noble Lord preferred to proceed in this way. He has quoted repeatedly the Donovan Commission, but since he has relied so heavily on some quotations, will he look at paragraph 658, which comes between the two paragraphs which he read to the Committee? This is the paragraph which deals with a review body and it states:
"We envisage a review body consisting of three members, of whom two would be chosen from a panel of trade unionists appointed by the Secretary of State for Employment and Productivity after consultation with the T.U.C., and one would be a lawyer who would act as chairman."
The Report went on to set out the important role which was foreseen for that review body. The Government have omitted altogether anything on the lines of that review body, and I should be grateful if the noble Lord would indicate why this part of the Donovan Commis-
sion's Report on trade union rules has been omitted.
LORD DRUMALBYN: The noble Lord has asked two further questions, the first of which was about the role of the T.U.C. The T.U.C. can do a great deal, and the Government hope that it will continue to do the good work that it is doing. But it is not envisaged that the T.U.C. can do everything. After all, the rights of others are involved in these matters and the T.U.C. cannot very easily get compensation for those who suffer loss; nor indeed is it always able to stop people doing what they are doing among the unions. So it is necessary to have some superior authority. The noble Lord asked about the review body. This is not given a name here, and perhaps the functions are not all quite the same as the Donovan Commission envisaged. But there are other industrial tribunals which are composed in much the same way as was envisaged in paragraph 658.
LORD DELACOURT-SMITH: I think that that is not really quite correct. I was not aware that the industrial tribunal was to consist of,
"… three members, of whom two would be chosen from a panel of trade unionists appointed…after consultation with the T.U.C, and one would be a lawyer who would act as chairman."
If that is the case, it is indeed news to me. The review body was designed by the Donovan Commission to ensure that there was brought to bear on the issue of union rules, and acting, as it were, between the Registrar and the trade unions, a body which would have expert trade union knowledge. This element has not been provided by the Government. They have not provided for any consultation on a regular basis with the Trades Union Congress, or for the special review body which Donovan envisaged. I really do not think that we can accept the industrial tribunals as fulfilling in any way the function that was envisaged by Donovan.
8.43 p.m.
On Question, Whether the said Amendment (No. 74) shall be agreed to?
Their Lordships divided: Contents, 45; Not-Contents, 99.

CONTENTS

Archibald, L.

Beswick, L.

Buckinghamshire, E.

Ardwick, L.

Blyton, L.

Burntwood, L.

Bernstein, L.

Brockway, L.

Champion, L.

Collison, L.

Hughes, L.

Plummer, Bs.

Cooper of Stockton Heath, L.

Jacques, L.

Ritchie-Calder, L.

Davies of Leek, L.

Janner, L.

Sainsbury, L.

Delacourt-Smith, L.

Lee of Asheridge, Bs.

Serota, Bs.

Diamond, L.

Lloyd of Hampstead, L.

Shepherd, L.

Gage, V.

Longford, E.

Shinwell, L.

Gaitskell, Bs.

Maelor, L.

Slater, L.

Gardiner, L.

Milner of Leeds, L. [Teller.]

Stow Hill, L.

Garnsworthy, L.

Peddie, L.

Taylor of Mansfield, L.

Henderson, L.

Phillips, Bs.

Wells-Pestell, L.

Heycock, L.

Platt, L.

White, Bs.

Hilton of Upton, L. [Teller.]

Popplewell, L.

Wynne-Jones, L.

Hoy, L.

NOT-CONTENTS

Aberdare, L.

Dundee, E.

Northchurch, Bs.

Ailwyn, L.

Ebbisham, L.

Nugent of Guildford, L.

Allerton, L.

Effingham, E.

Oakshott, L.

Alport, L.

Essex, E.

Orr-Ewing, L.

Arran, E.

Exeter, M.

Poole, L.

Balerno, L.

Ferrers, E.

Radnor, E.

Balfour of Inchrye, L.

Gisborough, L.

Rankeillour, L.

Barnby, L.

Goschen, V. [Teller.]

Reading, M.

Barrington, V.

Gowrie, E.

Redesdale, L.

Beauchamp, E.

Gray, L.

Redmayne, L.

Beaumont of Whitley, L.

Grimston of Westbury, L.

Reigate, L.

Belstead, L.

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

Robertson of Oakridge, L.

Berkeley, Bs.

St. Aldwyn, E.

Blackburn, Bp.

Halsbury, E.

St. Helens, L.

Boston, L.

Hankey, L.

St. Just, L.

Brabazon of Tara, L.

Harlech, L.

Sandford, L.

Bridgeman, V.

Harvey of Tasburgh, L.

Sandys, L.

Brooke of Cumnor, L.

Hatherton, L.

Selkirk, E.

Brooke of Ystradfellte, Bs.

Henley, L.

Sempill, Ly.

Byers, L.

Hood, V.

Sinclair of Cleeve, L.

Caldecote, V.

Ilford, L.

Strang, L.

Clwyd, L.

Jellicoe, E. (L. Privy Seal.)

Strathcarron, L.

Cottesloe, L.

Kemsley, V.

Swaythling, L.

Courtown, E.

Lansdowne, M.

Teviot, L.

Cowley, E.

Lothian, M.

Thorneycroft, L.

Craigavon, V.

McCorquodale of Newton, L.

Thurso, V.

Cromartie, E.

Malmesbury, E.

Tweedsmuir, L.

Cullen of Ashbourne, L.

Mansfield, E.

Tweedsmuir of Belhelvie, Bs.

Daventry, V.

Milverton, L.

Vivian, L.

Davidson, V.

Molson, L.

Ward of Witley, V.

De La Warr, E.

Mowbray and Stourton, L.

Windlesham, L.

Denham, L. [Teller.]

Moyne, L.

Wolverton, L.

Digby, L.

Nelson of Stafford, L.

Yarborough, E.

Drumalbyn, L.

On Question, Amendment agreed to.

THE CHAIRMAN OF COMMITTEES: Before I call Amendment No. 75 I think I should point out to the Committee that if this Amendment is agreed to I cannot call Amendment No. 76.
8.51 p.m.
LORD BELSTEAD LORD BELSTEAD moved Amendment No. 75:
Page 8, line 20, leave out from ("unions") to ("in") in line 21 and insert ("or between an employers' association and one or more trade unions, whereby it is agreed").
The noble Lord said: The points in this Amendment were I think covered by my noble friend in relation to the new
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clause following Clause 16. I formally beg to move.
LORD DELACOURT-SMITH: I think it may be the case that some Members of the Committee were not present at our consideration of the earlier clause, and, without wishing to be difficult, I think that a few words of explanation would be welcome.
LORD BELSTEAD: These Amendments refer back, as I was saying just now, to the new clause which my noble friend moved last week. This particular clause allows that an employers' association rather than a single employer may be included in the provisions of Clause 10. It therefore provides more flexibility and a wider sweep to the provisions.
BARONESS WHITE: Could the noble Lord explain to us at this point—because some of us have been a little puzzled about this—whether, in this particular place, the provision has any effect on Clause 16, to which, of course, we have not yet come? We understood that one of the main reasons for including employers' associations was to cover such industries or occupations as the theatrical profession and the seamen, because particularly for them the employers' associations are of great importance.
LORD BELSTEAD: I think we are going wide. Similar provisions are to be found, I think I am right in saying, in Schedule 1.
LORD DAVIES OF LEEK: We are asking for an explanation. I am asking—and I think I have got clearly what it means, because I have looked at it about six times now—I had better put it interogatively and humbly. Does it mean, in relation to an employers' association, with a number of unions in its type of industry throughout the whole gamut of that industry, wherever it may be—not just in a factory or a plant but throughout the whole country—that if, say, the brush-makers' union has one little branch in Llanfairpwllgyngyllgogerychwyrndrobwll-llandyssiliogogogoch, and another little branch in Cornwall, the whole gamut of those things will take them in; or is it just only local?
LORD DRUMALBYN: It means exactly what it says. This can be as wide or as narrow as you like. You can have a plant agreement; you can have an agreement by associated employers; you can have an agreement right across the whole board of the whole range of an industry. It is quite open, and it applies to the description or descriptions of workers who are specified in the agreement.
LORD BERNSTEIN: Could the noble Lord help me? Where does it appear in Clause 1? My recollection is that the first time we had this question of associations was last Thursday.
THE LORD CHANCELLOR: My noble friend said Schedule 1, not Clause 1.
8.57 p.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 79:
Page 8, line 29, leave out from ("unions") to end of line 31
The noble Baroness said: I beg to move the next Amendment which stands in the name of my noble friends. This is really an occasion, once again, for expressing our general views of the Bill. I must agree that we have already had a pretty full discussion, and therefore I do not propose to detain your Lordships for any length of time. But with our general attitude towards this Bill we feel we are entitled to indicate, as we go through it, places at which we feel that the Bill is not consonant with our point of view. In this particular instance we do not expect the Government to agree with us. They have accepted one or two of our Amendments, but we should frankly he surprised if they accepted this one, because we recognise fully that we are here expressing a political opinion and giving expression to our general attitude towards the Bill. But I think we are justified in so doing because I would point out, with reference to the remarks made a little earlier, about its being no business of ours to talk about these matters, that not one of these clauses, Nos. 1 to 15, inclusive, was discussed in any way whatsoever in the elected Chamber. Therefore, if Members there did not discuss them—they voted on them without any discussion at all—it seems to us that we are entitled to say one or two words about them.
It is, I think, quite plain to any of your Lordships who have observed this Amendment of ours that, were it carried, it would drive a carriage and pair through the whole agency shop concept as it is held by the Government, because we are suggesting here that we should exclude references to those who did not wish to belong to trade unions and therefore did not wish to pay under the provisions of the earlier clauses of the Bill. In other words, if there are such people we should prefer them to be nonvoting members of the union, to pay their dues and not to play any other part if they had no wish so to do. But it will be appreciated that we take the attitude, as we have said on previous occasions, that the Government are

743
elevating the status of non-unionism in a way which we find thoroughly unsatisfactory and reprehensible. It is what we might call a demonstrative Amendment, simply to bring to the attention of your Lordships once more the fact that we do not care for the concept of the agency shop, with which this clause is concerned. We do not believe it will improve industrial relations or benefit industry, and therefore we take this opportunity of indicating once more our general attitude to this part of the Bill.
LORD DRUMALBYN: Taken at its face value, this is rather an extraordinary Amendment, but I appreciate that the noble Lords would obviously not wish to win a vote on this Amendment because it would rather make nonsense of the clause.
BARONESS WHITE: With great respect, we should be delighted to win; we do not think the Government would wish us to win, but it would improve the Bill immensely from our point of view if we were to do so.
LORD DRUMALBYN: With great respect, it would make nonsense of the Bill, and I am sure that this Committee would not wish to allow Bills to leave this Committee in that state.
A NOBLE LORD: The Bill is nonsense anyway.
LORD DRUMALBYN: We have discussed this point very fully. I do not think noble Lords would wish us to go over the ground again. We believe this to be a very reasonable compromise between the two points of view which we have emphasised so greatly: on the one hand, the right to belong or not to belong; and on the other hand, the need for a stable system of collective bargaining. This is a compromise which will ensure that the unions are strong, because it gives the opportunity to those who do not wish to be members of a union to retain their independence but requires them to contribute to the union. That means that the unions will be what they proclaim themselves to be—free, voluntary associations. They will be voluntary in every sense. Those who want to belong may belong, and those who do not wish to belong will pay their share of the expenses of negotiation. We
744
believe that is a sound arrangement which will preserve freedom on the one hand and ensure an improvement in collective bargaining on the other.
LORD POPPLEWELL: I appreciate the point, but I wonder if the noble Lord, before he sits down, would answer this question. So far as I know, there is no type of machinery for collecting these contributions and paying them over to a charity. Is the noble Lord able to say what is in the Government's mind with regard to establishing the machinery to see that these contributions are regularly paid to the appropriate charity?
LORD DRUIVIALBYN: I do not know whether the noble Lord was in the Chamber when my noble friend Lord Windlesham explained this with great clarity. It would be out of order to go over it again.
LORD DAVIES OF LEEK: There is a point that is worth going over in this clause, and I will quote the phrase that the worker shall
"agree to pay appropriate contributions to that trade union".
The point of that is that the trade union must be a registered trade union or it cannot get agreement. Am I correct in that?
LORD DRUMALBYN: Yes.
LORD DAVIES OF LEEK: Then why is it not given as "registered" in the Bill?
LORD DRUMALBYN: If the noble Lord will look at Clause 158, he will find the definition of "trade union".
LORD DAVIES OF LEEK: But would it not have made it much clearer in the Bill to make sure? What I am talking about is the looseness of the wording. Judges, courts and young barristers will play about with it. To get it crystal clear I think that qualification should be put in wherever there is the word "union", so that we know what we are talking about—registered unions. The others have no power to organise collective bargaining or anything else.
LORD BEAUMONT OF WHITLEY: Is the noble Lord saying that wherever a word which appears in the definition appears in the course of this Bill it should be accompanied by the definition?

745
In that case, the Bill would be twice as long and there would be no need for the definitions.
LORD DAVIES OF LEEK: Not unless the definition of words, as in this case, is important, in which case the answer is in the affirmative.
LORD BEAUMONT OF WHITLEY: It is nonsense.
LORD DAVIES OF LEEK: It is not nonsense at all. This arrogance of the Liberal Party is astounding.
SEVERAL NOBLE LORDS: Order ! Order !
LORD DELACOURT-SMITH: I wonder if I could put a question to the noble Lord, so that he may answer either at this point or at a later stage? Perhaps the noble and learned Lord Chancellor will be able to answer it. Is there anything in the Bill which would preclude an employer from paying himself, in one way or another, the contribution which should be made to the union by nonmembers under an agency shop agreement? I am sure the noble Lord will appreciate that since many employers do operate the system of deducting union contributions that might be quite an easy course, and it is clear from what noble Lords opposite have said that it would in many respects frustrate the intentions of the Government. Personally I cannot find anything in the Bill which would preclude that, and it would be useful to know whether there is anything.
LORD DRUMALBYN: The noble Lord has almost a detective mind on these things. I am not certain whether that aspect has already been considered, but I should have thought it was possible that this might be covered under Clause 5—where there is mention of some element of discrimination, inducement or something of that order not to belong to the union if the employer paid the dues. I think it very probable that that would be treated as an inducement, and I am sure that if it happened there would be a complaint.
LORD SLATER: What are the conditions with regard to an agreement arrived at as between employer and employee where the contribution is deducted from the employee's wages, either at
746
weekly or monthly intervals? What then will be the position in regard to the transference to this agency shop?
BARONESS WHITE: If the noble Lord is proposing to answer that question I should be delighted to allow him to do so.
LORD DRUMALBYN: I should prefer only to answer those questions I can understand. I find that very difficult to understand. There is no question of a transfer to an agency shop.
LORD SLATER: We did this when we were in the Post Office, where we allowed the dues or contributions to be deducted at head office instead of being collected by the branch secretary. It became part of the operation. The money is automatically transferred to the trade unions. What is going to happen in regard to individuals who are not members of a trade union? They make a contribution, but it is not to be collected by the trade union. What is to happen about the transfer of that contribution?
LORD DRUMALBYN: My noble friend Lord Windlesham discussed this, and said it would be a matter for agreement, which would be settled in the way most convenient to the parties concerned.
BARONESS WHITE: I think that we have made our position clear on this but as we shall be discussing further matters in this clause, and will wish to express our general disapproval of it later, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
9.10 p.m.
THE EARL OF HALSBURY THE EARL OF HALSBURY moved Amendment No. 79A:
Page 8, line 31, at end insert—
"( ) (a) Any single description of workers specified in the agreement shall not comprise workers who duties, training, experience and professional or other qualifications are widely dissimilar in nature.
(b) Professionally qualified employees shall be entitled to description in terms of the qualifying body to which they belong."
The noble Earl said: In rising to move the Amendment standing in my name and in the names of the noble Lord, Lord Byers, the noble Lord, Lord Nelson and the noble Lord, Lord Platt, I should like to refer briefly to all four Amendments that I have tabled before speaking to

747
the first one as they interlock and as, by coincidence, in the Marshalled List they appear in reverse order to that which is most easily comprehensible. Your Lordships will note that Clause 22(6)(b) refers to any degree, diploma or other academic technical or professional qualification.
LORD DRUMALBYN: I wonder whether the Liberal Party would agree to their Amendments Nos. 100A, 102A and 100B being discussed at the same time.
LORD BEAUMONT OF WHITLEY: If the Government accept any part of the Amendments being put forward at the moment it is our intention to move a slightly separate Amendment on 100A and 100B. These we have already tabled.
THE EARL OF HALSBURY: Clause 22(6)(b) does not define "professional qualification". I have accordingly attempted a definition in the fourth of my Amendments. It is often said that this cannot be done; but I believe that it can. We will debate the point when the Amendment is called.
Having defined "professional qualification" I employ this term in my third Amendment to write into Clause 46(3) "professional or other qualification" instead of "qualification". This is the clause which grants relief to minorities under the sole bargaining provisions. In my second Amendment I copy this clause as amended back into the context of the agency shop provisions so as to provide the same protection to minorities in the context of agency shops as they enjoy in the context of sole bargaining agencies. Finally, in the Amendment to which I am now speaking I introduce a general embargo on classifying together workers whose status is widely dissimilar, and in the second part of the Amendment require that professionally qualified employees should be entitled to be described for the purposes of the Act in terms of the qualifying body of which they are members and which endows them with their professional standing.
I should like to emphasise that in proposing these Amendments I am not seeking to establish a privileged class compared to whom others are second-rate citizens. The professional man is a special person from only one point of view; namely, that he very often wears
748
a special degree of overall responsibility in the discharge of which he is subject to discipline by an ethical committee or whatever variant term is used by the qualifying body of which he is a member. He can therefore come under cross-fire from opposed sources if the action required by union membership is incompatible with that required by his professional conscience. I therefore feel that he should be entitled to a description in terms of his profession rather than in more general terms. Doctors, solicitors, chartered accountants, chartered engineers, professional chemists, physicists, biologists, metallurgists architects, quantity surveyors and so on may wear white collars and work in offices. This is an insufficient reason for classifying them as white-collar workers along with professionally unqualified people who may also wear white collars and work in offices but who are not in danger of coming under crossfire.
I am not opposed—and I hope noble Lords opposite will not misunderstand me to the professional classes being members of trade unions. On the contrary, having regard to the large area of monopoly employment in the public health services, in the nationalised industries and so on, I think it essential that professionally qualified men should exercise their rights and set up unions which represent them—and in many cases they have done so.
Why, then, are the five members of the Council of Scientific and Technological Institutions, the fifteen Chartered Engineering Institutions, the Chartered Surveyors, the British Medical Association and many other professional bodies who have written to me following my speech on Second Reading so disturbed by the agency shop and sole bargaining agency provisions of this Bill? Much of their disquiet stems from a decision of the I.R.C. made last year. For some time Mr. Clive Jenkins' union A.S.T.M.S. have been pressing for the equivalent in this Bill of a sole bargaining agency provision with respect to employees of the Medical Research Council. The status of the M.R.C. in relation to the technicians, laboratory assistants and unqualified persons generally was not in serious dispute. The difficulty arose with the professionally qualified employees.

749
In so far as they were clinical workers—that is doctors—the British Medical Association represented them. But what of their co-workers, equally professional: the professionally qualified chemists, physicists, biologists and so on?—87 per cent. of whom wanted to be represented by the British Medical Association, who were willing to act on their behalf.
The A.S.T.M.S. sought to override this clearly expressed wish by lumping them together with their unqualified assistants, and the matter went to the I.R.C. as then constituted. The whole professional world was flabbergasted by its decision to support the A.S.T.M.S. instead of the British Medical Association in this context. The M.R.C. wavered and I do not know what might have happened, but the publication of this Bill heartened the M.R.C. into rejection of the finding of the I.R.C. And there the matter rests—
LORD DRUMALBYN: If the noble Lord will forgive me, I should like to suggest that perhaps the Committee might understand more clearly still than they are doing what he is saying if he would refer to the Commission on Industrial Relations as C.I.R.
THE EARL OF HALSBURY: I accept the correction from the noble Lord. And there the matter rests, leaving scar tissue among many members of the professional community. If the wishes of 87 per cent., including Nobel Prize-winners and Fellows of the Royal Society and other leaders of their professions could be over-riden in this way, what might not happen next and what guarantee does this Bill provide against it?
Another incident which has had widespread repercussions among professional engineers is the fate of N.A.L.G.O. members employed by the city of Hull, who refused to come out on a strike which, if effective, would have flooded large areas of the city. Their professional conscience being completely at variance with N.A.L.G.O. policies, they manned the pumps themselves and were expelled from N.A.L.G.O. in consequence. Mercifully for them, there was no closed shop and so they were able to retain their employment. Clearly N.A.L.G.O. was the wrong union for them to belong to. They ought to have been members of
750
U.K.A.P.E., the United Kingdom Association of Professional Engineers, a society whose membership is confined to chartered engineers and one which respects their scruples of conscience. Had this Bill been in force, they clearly ought to have had an independent description and balloted by themselves as to whether or not they wanted an agency shop and, if so, whether a sole bargaining agency should be entrusted to the union of their choice. This they could never do if, for purposes of "description", they were lumped in with a very large majority of other workers who did not share their professional scruples.
The discussions I have listened to on the protection of minorities have seemed to me to over-emphasise the problems presented by two kinds of minority, to the neglect of a third. There is the welder who may be in a minority vis-á-vis the boilermakers. That is one kind of problem. There is the individual who does not want to join a trade union at all. He is a second kind of problem. We have tended to concentrate our discussions on these. My concern is with the third problem—that of the man who is in a minority because he has been wrongly classified with a numerically larger group for the purpose of "description". I know that the Law Officers of the Crown, in correspondence with representatives of the professional associations, have argued that these matters should be dealt with in the code of practice. I should like to rebut this argument by quoting the noble Lord, Lord Drumalbyn, from the OFFICIAL REPORT of April 27, in which, in the course of an intervention he said:
"I do not think that one can accept that because something is sound for the code of practice it is necessarily sound for the Bill, because the Bill is laying down rights and duties, whereas the code of practice sets out to establish codes of behaviour which would be difficult to establish in the Bill."—[col 1149.]
Surely, not being placed between cross-fires by the act of a court or commission should be a right in law. It should not be a matter of behaviour written into a code of practice which has not yet been published.
I have tried to deal with this matter briefly because other speakers are to follow and time, as usual, passes in its relentless way. I cannot help but speculate whether Alexander Pope may not

751
have been prophetically inspired by the Committee stage of this Bill when he wrote:
"A needless Alexandrine ends the song, That, like a wounded snake, drags its slow length along."
If so, a few lines later he may have anticipated the brevity and pith with which noble Ladies often set a good example:
"Not so when swift Camilla scours the plain Flies o'er the unbending corn and skims along the main."
"Corn" is a word of more than one meaning. The Ministry of Agriculture, Fisheries and Food might interpret it one way and Actors' Equity another. Be that as it may, it is not for me to say in what sense the poet may have used it prophetically with respect to this Committee stage.
I have tried to emulate "swift Camilla" when presenting these arguments to your Lordships. I hope the field of subject matter over which I have flown will not be unbending, and that the Government will pay due heed to what is said, not by me, for the noble Lord, Lord Drumalbyn, has been more than kind in listening to my arguments privately, but by those who follow me, who, I hope, will convince the noble Lord that my views are not without a wide measure of support in all Parties and in all sections of the professions.
9.22 p.m.
VISCOUNT CALDECOTE: The noble Earl, Lord Halsbury, has spoken eloquently, and there is no need to add anything to what he said; but I should like to support very strongly the point he has made. Professional status—I speak as a chartered engineer—is of paramount importance. Surely we must all agree that the principles of professional conduct must be maintained at all costs. I do not believe that is possible if professional people are lumped together with others who do not have the same sort of outlook and standards. In other words, it is not possible to maintain these important standards if there is a real conflict of loyalties, such as the noble Earl indicated often arises. If the Committee agree that the maintenance of these professional standards really is important, I hope that the Government will give very
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sympathetic consideration to these Amendments. I do not believe it is sufficient or appropriate that such an important matter should be dealt with in the code of practice, which, as I understand it, will not have the force of law.
I believe it is important that this matter should be covered in the body of the Bill, and if the Government do not feel able to accept the Amendments in exactly the way they have been drafted, I hope that they will, at worst, give an undertaking to look at this matter very carefully, and bring forward a suitable Amendment on report.
LORD COOPER OF STOCKTON HEATH: I think that this question of the professional person is another indication of the problems created by the Bill. Those who want something done about professional people are in the dilemma that many of the professions have for their objective, and very properly so, the establishment of high standards of professional conduct. I think I am right in saying that many of the professional bodies where set up by Royal Charter, and one of the conditions of a Royal Charter is that you do not deal with wage relations or payment and so on. This is the dilemma in which the professional bodies find themselves, and I think that their situation ought to be met.
This clause refers to groups of people and sections of people. Because, as we have said, the American pattern has been followed with regard to this kind of legislation I am sure that you will not have an agency agreement which will cover all employees, but an agreement which will cover groups of employees even within the manual field, with groupings as between craft and unskilled and semiskilled people in many instances. All this will be done by the court when a request comes to establish an agency shop. I think, therefore, that the apprehensions which have been expressed on behalf of the professional men are not soundly based. Nevertheless, I accept that, because we are now by legislation trying to provide for industrial relations for everybody, this is going to crystallise a situation which the professional bodies have not previously had to face. They will now have to face the problem of whether they are going to depend on fees

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and percentages, or whether they are going to depend upon scales which are negotiated; and I appreciate the problem. But I do not think the apprehention is justified, because there is protection in giving recognition for groups, and, by and large there will be no difficulty in identifying professional men.
But, again, the problem arises that as soon as you refer to institutions where professional men are concerned you find that in many instances they are very much involved in a work force. So you have the two kinds of professional men: the men who are really advisory and are acting as a profession, individually in many cases, and the others, in groups which have been referred to. I do not want to deal with the whole situation, but I do not think that that argument was very relevant, because there is an example. If you want to call engineers in municipal employment professional men, I would remind you that there are also engineers in municipalities and in management, and for many years, for good or ill, NALGO have been negotiating for many of them. I do not know the merits of the matter, so I cannot make any judgment on it, but I think there was a case when NALGO—and it is very rare for NALGO to do this—almost got into a strike or "go-slow" situation which those people were not prepared to carry out. But I appreciate the problem, which is a very real one and one which has been brought about by the Bill itself in trying to cover everybody.
LORD DAVIES OF LEEK: I think a service has been rendered by the noble Lords, Lord Byers, Lord Nelson and Lord Platt, in putting down this Amendment, but I do not quite know how it can be dealt with. What I think this really in depth points out is the problem that arises when you try to make a legal framework to deal with these matters. Take the realm of biochemistry, where every day now there are great expansions. At the present moment, for instance, I know that there is a problem of employment with biochemists. Or take the Medical Research Council, which includes the most highly skilled people—people who have devoted their entire life to studying their profession. Where are you putting these people in this Bill? We are trying to reach a point at which everybody is put into a tiny category.
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I want to repeat something I said about a fortnight ago when discussing this Bill in a general way. It is a pity that we are not allowing for the intelligence and common sense of people, and are not allowing for the typical British system of working by custom. We are trying to put everything down like the Common Market, and like other countries—yes, there are 7,000 or 9,000 bureaucrats who are going to try to define every human activity in the Common Market. We are trying to define here, in the realm of the professional worker, whoever he may be, many a professional worker who is highly qualified in electronics, in pathology, in biochemistry, maybe wearing a blue collar, metaphorically speaking, as opposed to a white collar, because he enjoys creative work with his hands. I do not know how the Government are going to get over it, but I think a service has been rendered by putting down this Amendment, and I hope that attention of some kind will be paid to this problem, which my noble friend, with his vast experience, has also pointed out.
9.29 p.m.
LORD PLATT: I find myself in agreement with some of the things which the noble Lord, Lord Davies of Leek, has just been saying. I think this situation arises from drafting an enormous and extremely complicated Bill the sole purpose of which is to deal with relations in industry. I will not at this moment say whether I think it does it well or not, but that is its sole purpose; and if nobody believes this, have they not listened to the Second Reading debate, which went on for two days—and this is the seventh day of the Committee stage, in which hardly a reference of any kind has been made to professions. The whole talk, with the exception of the speech of the noble Earl, Lord Halsbury, who on Second Reading mentioned the professions, has been of employer and employee in industry. The professions, who are often minorities of course, seem to have come in for no consideration at all.
The noble Earl has put the situation so well that there is little more I need to say in calling upon the Government to give this aspect completely new consideration, to see whether some different

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arrangements should not be made for professions, which have governed their own affairs for years and have developed in recent years among those who are working as employees of the Government, as in the Health Service, and have developed negotiating machinery and review bodies as well as their own governing bodies—in our own case the General Medical Council. I hope the Government will consider whether the Bill is really appropriate for organisations of this kind, and whether there should not be some mechanism by which professions could come before the Commission for Industrial Relations and argue their case that special arrangements should be made for them, particularly where they are asked to fit in with these trade union arrangements which depend on a code of practice about which they know nothing. In the professions we have had codes of practice for many years, in some cases for hundreds of years, and we do not want a new code of practice imposed upon us by bureaucratic methods. Finally, I think this clause will have an ill-effect on the morale of well-established professions, who are proud of their work and proud of their duties to their clients or to their patients, and I would ask the Government to think again.
9.33 p.m.
LORD NELSON OF STAFFORD: May I add my voice in support of the Amendment which the noble Earl. Lord Halsbury, has proposed? I agree with the noble Lord, Lord Platt, that there has been little talk about professional men inside the House, but I can assure your Lordships that there has been a great deal of talk about it outside. I think your Lordships should give serious consideration to this Amendment. The professional workers think that they are being put in an impossible position by the terms of the industrial agency shop provisions in the Bill. They are not opposed to members of unions, but they see themselves as a small minority in a large shop, represented by a union in which they are a minority, a union which in many instances may be pursuing policies which are in conflict with the professional code of conduct to which they are pledged, as defined by their royal charters. I cannot think that this is inten-
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ded by the Government, and they ought to take a good look at it.
The individual is faced with divided loyalties, which put him into an extremely difficult position. I do not think that this is in the interests of the trade unions either, because their strength is dependent upon the loyalty and solidarity of their members, and they do not want to have an element in their ranks which is divided in its loyalty.
Your Lordships may have seen another case in addition to that referred to by the noble Earl, Lord Halsbury, to which I should like to refer. It occurred on the North-East coast, when professional men were forced to join a union against their wish, as a result of an agreement with management entered into in order to avoid a major industrial dispute. This seems to me to be quite obviously unfair practice. The Government may say that it should appear in the code of practice. But I agree with noble Lords who have already spoken on this subject: I do not think that the code of practice is sufficient to deal with the important position of professional men. They are intelligent, and are fulfilling important roles in their undertakings and organisations. I think their position ought to be clearly defined to ensure that there is no misunderstanding. Therefore I would press the Government to give serious consideration to this Amendment, to ensure that no misunderstandings arise with the many professional men who are doing such an excellent job throughout our national activities.
LORD WYNNE-JONES: I hope that the Government will pay great attention to this Amendment and try and meet it because, as the noble Earl and several noble Lords have already pointed out, there is a serious problem here. I have noticed it working inside a university, in charge of a large chemistry department with a number of technical staff of all grades. This is the serious problem with which one is faced: that one has, on the one hand, a person who is an Associate Member of the Royal Institute of Chemistry, a highly qualified person, with a qualification that is regarded as equivalent to a first or second class Honours degree at university. This person has obtained this qualification as a result of doing work in the laboratory. He has

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never been to a university, but has taken his qualification by working on his own for the whole of this difficult examination. He has become qualified, and has then found a suitable position inside the department. He is a person with high skill (I have had this occur in my own department), and is put in charge of an elaborate and expensive piece of apparatus. I can think of one such man who is in charge of the complete electron microscopy department inside the university. This man has under his charge instruments which have cost the best part of £250,000. Any one of those instruments can be wrecked in a second by a bad mistake. He has under him three or four technical staff and his skill is relied upon by at least a dozen departments in the university. I have known people from the School of Dentistry, the School of Medicine, and from the Departments of Biology and Metallurgy coming along and relying on this man's technical skill and help.
This person is in a very special position, and there are many like him throughout the country. It is by no means unique; you can find in universities and research laboratories all over the country people in this position. They are one category of the persons to whom the noble Earl, Lord Halsbury, was referring. They are people who cannot be fitted easily and neatly into the machine which is being proposed by this Bill. It is important that a proper place should be found for anyone like this, because if it is not the future development of our scientific work, our medical work and our industrial work will suffer. It is extremely important to realise that these people are the very people who carry the real burden of innovation inside all our scientific and technological work. I beg the noble Lord to give serious consideration to this matter and to realise that if they are to be forced into a system which looks a neat, tidy, ready-made system, it is also the system of death for innovation.
BARONESS GAITSKELL: I should like to add one comment. I have been very interested in this Amendment, and the arguments for it sound very plausible; but as they have been developed it has seemed to me, as my noble friend Lord Cooper of Stockton Heath pointed out, that the Bill itself does not help.
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I agree with what my noble friend Lord Wynne-Jones said about the importance of this particular group of men, but this Bill will act as a divisive force between the professional and the industrial workers; and I am not sure that that is what we want in our society. I do not think we want to make this rift wider than it is already. This matter bodes ill for us in future.
BARONESS WHITE: I was rather wondering whether we should have enlightenment from the Liberal benches.
LORD BYERS: Let the Government reply first.
BARONESS WHITE: The noble Lord, Lord Byers', name is down to the Amendment. I should like to make a few comments on this Amendment because, with great respect to the noble Lord, Lord Platt, this is not the first time during our debates on the Bill that we have mentioned the position of the professional person. Noble Lords may recall that I raised this matter at a very early stage, I think on Clause 1. At that stage I had in mind particularly teachers' organisations and also N.A.L.G.O. who raised with some of us the problem as it appeared to them. As the noble Earl has pointed out, they have in membership persons of different professions who are employees of local government, local council, the hospital services or of the public service industries—gas, electricity and the like—for whom this problem is peculiarly acute.
On the occasion when we on this side raised this difficulty of dual membership and dual loyalty the Government seemed to indicate that they wished to give the matter a good deal further thought. They may have already done so. It is a most difficult problem and it arises partly out of the nature of the Bill. If one is going to wrap up our industrial relations in so much legislative machinery, these problems, which are admittedly already in existence—I do not pretend they are entirely created by the Bill, but they are accentuated by it—are much more formalised than they have been in the past.
The problem I think falls under several heads. My noble friend Lady Gaitskell

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is quite right when she says that one is concerned that if one can avoid it, one should not have a divisive position with people who in different capacities are serving a common employer. Under the definition in this Bill, which we have discussed already on more than one occasion, they are all workers and I think most of us, certainly we on this side of the Committee and I suppose noble Lords opposite, would not really welcome a division into first and second class citizens, sheep and goats, whatever you like to call them, because in their different ways they are all responsible for the welfare of the establishment by which they are employed. On the other hand, one recognises the position of a professional man who, even though he may be a most loyal member of a trade union, is also a member of a professional association, and has to reconcile the conflicting demands. Even within this situation there are also serious difficulties. The B.M.A. may be a rather special trade union, but it is a trade union which negotiates directly on behalf of its members.
LORD PLATT: It is not a trade union but it does negotiate.
BARONESS WHITE: For certain purposes it is a quasi trade union, whereas we were told with great emphasis by my noble friend Lord Tangley in our earlier debate that the Law Society per contra is not a negotiating body in that sense. I cannot speak for the engineering bodies on which two noble Lords have spoken, or the R.I.B.A.; but there are professional bodies which vary in their relationships with their members or in the kind of representation which they may or may not make on their behalf. We are in a very important and complex area. Mention was made of A.S.T.M.S., which has been moving rapidly into the sphere of organising white collar workers (if you like to so call them) and professional people who for the most part have not hitherto been organised in trade unions in the ordinary sense of that word. So I should suppose it to be an increasing and not diminishing problem. We should be glad to have the considered thoughts now of the Government which were not vouchsafed when we touched on this matter at an earlier stage.
9.47 p.m.
LORD DRUMALBYN: I should like to congratulate the noble Earl, Lord Halsbury, on having made a very clear and quite brief speech in which he has pointed out what he hopes to achieve. I should like to congratulate the noble Baroness on having walked extremely delicately, as she herself said, on a difficult subject. Perhaps I may be allowed to spend a little time on this matter because it shows the kind of problems we are going to face and the way in which the Bill seeks to solve them.
It would be fair to start from the situation as it is now. In that connection I would start with the speech of my noble friend Lord Nelson of Stafford. It is the case now that you can get threats of industrial action in order to bring the kind of person referred to into a negotiating body. Under the Bill, subsection (1) of Clause 10 envisages that agency shops can be set up by agreement. That is being done already: Only on Friday I came across a case in which a closed shop agreement failed to be renegotiated, and it has been replaced with an agency shop. This can be done voluntarily. Secondly, an agency shop can be established on the application of one or more trade unions desiring to enter into an agency shop under the machinery of the Bill. A feature there is that a union must be recognised as having negotiating rights before its application to be an agency shop can be proceeded with.
Noble Lords will be aware that the question of recognition is dealt with in Clause 43 and the following clauses. So there may be the position already where a union covering one or more descriptions of workers makes application for an agency shop or seeks to negotiate an agency shop agreement with an employer. In such circumstances, what is the position of the professional worker? Take first the case of the shop which has already been voluntarily agreed upon; and I think one can join with that the case where an agency shop is negotiated after the commencement of the Bill's implementation. The noble Earl, Lord Halsbury, indicated quite clearly that one of his fears was that descriptions of workers should be so wide as to embody within them professional workers, and that therefore as a minority they might

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be drawn into an agency shop by agreement between the sole bargaining agent for the bargaining unit, or whatever one likes to call it, and the employer. In such a case, what should the professional workers within that description of workers do?
Before I answer that question, I think I should say this. The purpose of the Bill is to establish stable collective bargaining. It does not want fragmentation; it wants to have viable units, either within one plant or covering a number of plants. I accept the criticism from the noble Lord, Lord Platt, that we are a little too apt to talk, and possibly to think, in terms of plants. But if that is so, it is largely because we have read the Donovan Commission's Report, and all that, and we tend rather to think in those terms. But, of course, it applies equally well to a NALGO situation or anything of that kind.
LORD PLATT: Until quite recently, I had never heard of an agency shop.
LORD DRUMALBYN: That may be so, but this is only a question of terminology. Since the noble Lord has said that, perhaps I may take the opportunity of simply saying to him, in response to the two speeches he has made, that we are not concerned here with the General Medical Council simply because it does not regulate relations between employers and workers: it enforces standards of medical practitioners.
LORD PLATT: We are concerned with codes of practice, which are going to be part of this Bill—indeed, a very important part.
LORD DRUMALBYN: I do not want to be distracted too much from my speech, but I would say that a code of practice of that kind is not the kind of code of practice we are speaking about under this Bill, where we are speaking about codes of practice for industrial relations, for collective bargaining and all the rest of it. This is not going to interfere in any way whatsoever in the individual codes of professions, subject of course to the fear that there might be a conflict of interest on professional duty in a specific case. But it is of course true that the British Medical Association performs, as the noble Baroness, Lady White, said, some of the functions of a trade union in that
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it negotiates terms and conditions on behalf of its members in the National Health Service, and to that extent it will be subject as a trade union to the supervision of the Registrar. But the likelihood is that it will be in the Special Register that has been set up for this purpose and will not be in the General Register of Trade Unions—if that is of any consolation to the noble Lord.
The question I put before is: What will be the position of professional men in a situation of this kind? In the first place, under the agency shop provisions they will at least be better off in this respect, that they will have the right not to belong to the union, and therefore they will not come under the discipline of the union within that agency shop. So that if the union goes on strike they will not have to go on strike, and their principles will be intact. The second point is that there is the possibility of referring problems or disputes to the N.R.I.C. or the C.I.R. The N.R.I.C. will pass them on to the C.I.R.
LORD WYNNE-JONES: If I may interrupt the noble Lord, he said that they will not be forced to belong to the union. Does that mean that they may belong to any other union?
LORD DRUMALBYN: What we are envisaging here is a situation where there is one union, as may happen in an agency shop, that is the sole bargaining agent for that agency shop, and that included in the descriptions of worker covered by the agency shop agreement are some professional workers. This is not necessarily so (and I will come to that in a moment) but I am dealing with that situation which may present certain problems—
LORD BYERS: May I ask the noble Lord whether he actually said that the section of the union which is professional will not come under the discipline of the larger union?
LORD DRUMALBYN: I did not say that. I am at present dealing with the situation where there is one union that is recognised in respect of a description of workers which has within it individual professional members. The individual professional members can decline to be members of that union and so not come under the discipline of that union, and so their allegiance will remain wholly to

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their professional body. That is the first case. The second case is where a number of unions combine together within the agency shop, each representing a different description of workers. There, one of the descriptions of workers represented may be a professional body, and in such a case it is likely to form part of a joint negotiating panel and to be represented on that joint negotiating panel. Noble Lords may well say that of course they will be in a minority in that case, but nevertheless they will be there, and they will be able to represent their members through whoever is their representative on the joint negotiating panel.
Thirdly, it is possible for the C.I.R. to give its advice on the scope of the bargaining unit, as noble Lords will see when they read the provisions relating to that. In other words, in any case which is referred by a union to the Industrial Court the C.I.R. will be able to recommend either the widening of the scope—or the contracting of the scope—of the descriptions of worker to be included in the agency shop ballot. It is important that noble Lords should bear that in mind, because it is not intended that the bargaining unit should be such that the rights of minorities will be completely over-ridden. Certainly one or more people with professional experience will be included in the C.I.R.
LORD BURNTWOOD: Does that point cover the medical profession, where there is gross disparity of income as between, for instance, consultants and general practitioners, who are usually considered to be the "work horses" of the profession? Would that cover the point of separate representation from the various branches of the profession?
LORD DRUMALBYN: Noble Lords are rather apt suddenly to go off at a tangent. If I may say so, that is an extreme tangent, because in the case the noble Lord is talking about all the workers concerned will be professional men, as I understand it. What we are worried about and what the House as a whole is worried about is the position of a small number of professional men in a wider group.
LORD BYERSs: This is the important point. The noble Lord said that the C.I.R. can give its advice, but am I not
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right in saying before the C.I.R. gives its advice the application has to be referred to it by the union? What happens if the professional body is such a minority of that union that on a ballot it cannot put its own case forward through the union?
LORD DRUMALBYN: Here we come to another question. The recognition question can be raised by any union; in other words, if a union finds that within the group in which it is included its interests are not being properly represented it can then raise the recognition issue.
LORD BYERS: The noble Lord keeps using the phrase "union". What we are trying to get at, and it is important, is the section of the union which is the professional section. Is that section recognised for the purposes of making application to the C.I.R.?
LORD DRUMALBYN: The noble Lord is not quite right about this. It will be the union that will raise the question. It will do it, of course, at the instance of those members within the group. The union will raise the question.
LORD BERNSTEIN: May I put this point to the noble Lord? Will the union be compelled to take that matter further if a minority in the union wish to break away?
LORD PLATT: May I put my point, because it follows from what the noble Lord, Lord Byers, said? Have we not just been told by the noble Lord that the professional men can keep out of the union if they like? Are we now being told that the union, or their part of the union, will represent them? I am afraid that I am completely at sea.
LORD DRUMALBYN: I am sorry if this is a complicated matter and I am not making it clear. Can the noble Lords keep in their minds that in an agency shop the individual has the right to belong to the union or to opt out of it? We were here back on the situation where individual professional men are included in a description of worker whose conditions are negotiated by a particular union. There the individual can opt out of it. We then came on to the joint negotiating panel, and if within that joint negotiating panel the professional section there felt that its interests were not being properly

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represented it could then raise the recognition issue through its union which would be on the special register. I hope I have made that clear.
10.4 p.m.
LORD COOPER OF STOCKTON HEATH: There are several difficulties. In an agency shop, if a professional man opts out of the union, presumably he has to pay the appropriate contribution. We will pass that; but that is a real complication. The other complication is that only registered trade unions can apply for representation. This is the dilemma I tried to bring out, the dilemma of a professional body representing highly trained professional men. A professional body is not a trade union; is not in a position to go for registration as a trade union unless it entirely changes its behaviour. This is the dilemma as I see it; this is the great problem for the professional bodies. The real issue for the professional body is whether it is prepared to adapt itself or, alternatively, whether it is going to make sufficient elasticity for those of its professional members who are in fact working in a group situation to join their appropriate trade union.
LORD DRUMALBYN: If one gives way for an intervention one expects a short one; if one gets a speech in between it makes it very difficult to proceed. I think the answer to the noble Lord is really this—I must try to spell this out so that everybody understands it. On the one hand, you can have the single union, with individual professionals in it, and they, as the noble Lord rightly said, can opt out of membership of the union and pay a contribution instead. The other situation is where there is a joint negotiating panel—you can call it a union or an association, or anything you like; but these professional bodies—in the circumstances of employment (and we are talking only of circumstances of employment, not where there is a client relationship), and where they are behaving like unions. They are functioning as unions, and they will be functioning as unions within that negotiating panel. If their interests are not sufficiently represented, then they can raise a recognition issue.
I should like to try and expand this a little, because I understand very well the professional point of view that those who enter a vocation, in which they undertake a service to their clients or to the
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community, cannot, and should not have to comply with any rule of any organisation within the community, not being an organisation representing the whole of the community, that they should act in a way that conflicts with their professional duty. I understand that perfectly. Having accepted the discipline of their profession, they cannot withdraw their services at the dictate of any group acting in its own particular interests; nor can they accept obligations, other than under the law, which are at variance with their professional duty. Their allegiance is to the community and their profession, and not to any group of workers.
Let us face this quite squarely, the very idea of sectional solidarity—"my union right or wrong"—is very often anathema, and they simply will not withdraw the services they are pledged to perform. We must all recognise this.
The situation at the present time is that sometimes, through industrial action, they are forced into exactly that position, and they very much resent it. In extreme instances they may quit their profession. But so long as they are in their profession it is a point of personal honour to put their duty to their clients, or to the community, first. We are not talking about the relationship between a professional man and his client. In so far as negotiations or terms of employment are concerned, National Health Service doctors employed by their executive committees have their own negotiating machinery, and are not caught up with other unions. We are talking about the qualified doctors, surveyors, engineers, and all the rest, who are workers within the meaning of the Bill, not as independent consultants but under a contract of employment, and who are, like the centurion in the Bible, set under authority, and who are ordered, as distinct from being instructed, and who in many cases work side by side with workers who have not their professional qualifications yet may be doing the same sort of work. It is people like this that we are talking about.
If a group of professional men so employed consider that they ought not to be included in an agency shop, even though they are already included in a bargaining unit, recognised by an employer, their proper course is to seek

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to persuade the unions who form the bargaining agent, and the employer, not to make an agency shop agreement which does not specifically recognise and safeguard their professional status, and their prior and overriding duty as members of their profession. If they fail in this, they can then invoke Clause 43 to challenge the recognition arrangements; and the C.I.R. will be bound to take account of the provisions of Clause 46(3). If the C.I.R. upheld their case, then the agency shop agreement, if it had already been made, would be effectively void in so far as the inclusion of that description of workers" was concerned. Where they persuade an employer to resist an application on the part of the workers for an agency shop, then the C.I.R. will be able not to proceed with the application until the recognition issue in dispute has been resolved or, if the Committee accepts Amendments 85, 86 and 87, if, in the opinion of the C.I.R., the setting up of an agency shop would quite probably involve a dispute.
The first Amendment as it stands would not exclude any group of professional workers from a bargaining unit in which it was already comprised. All it would do is to ensure that it was separately mentioned in terms of their professional qualification among the descriptions of workers comprised. This in itself would not have any effect in altering the existing recognition arrangement or in preventing the conclusion of a voluntary agency shop agreement. But the noble Earl seems to want to go further than that, and to exclude professionals from an agency shop agreement which covers non-professionals, even although the union concerned remains their bargaining agent. The broader question is whether people with professional qualifications should, if they wish, have a right to be excluded from voluntary agency shop agreements.
The crux of the matter is this. If the professional man belongs to a union and the rules of the union require all members, without exception, to comply with union instructions to take industrial action, then the professional man will no doubt elect to cease to belong to the union and will pay his contribution instead, as he should do if the union is negotiating his terms and conditions of
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service. It would be an unfair industrial practice for the employer, whether acting in concert with a union or not, to discriminate unfairly in terms and conditions of service against a professional man because he did not belong to the union. In other words, if there is a bargaining unit covering that man even though he is not a member of the union, they will have to negotiate terms not less favourable than those for others who were in the union. If, on the other hand, there is a joint negotiating panel or group of unions, and any union which represents separately a professional group feels strongly on the strike issue and considers that its interests are not being properly looked after, it can raise the matter as a recognition issue. If it satisfies the C.I.R. that its interests are not being adequately looked after under the existing arrangements, then it is difficult to imagine that the C.I.R. will not accede to its request for separate recognition, or recognition in conjunction with unions representing workers with similar duties, training, experience and qualifications.
I want to say in conclusion that we are very much impressed with the case which the noble Earl, Lord Halsbury, has made, which has been supported all round, and we think it right that it should be brought clearly to the attention of the C.I.R. that they have to bear in mind the special needs—because they are special, because they are different; not because they are superior or anything else—of professional people. For that reason, when we come to Amendment No. 252A which the noble Earl discussed with this Amendment, we shall be very favourably disposed to look at something along those lines.
Subsection (3) of Clause 46, to which the noble Earl's Amendment relates, states:
"… the Commission shall consider the extent to which different descriptions of employees in that group have interests in common, having regard in particular, in relation to each such description of employees, to—

(a) the nature of the work which they are employed to do, and

(b) their training, experience and qualifications".

To that the noble Earl would add:
"professional or other".
This is simply a question of bringing specifically to the attention of the C.I.R.

769
the special needs of professional men, and while I do not want to commit the Government at the present time to those particular words, we shall certainly have
770
a look at this and make certain that something is put in which will effect what I think the noble Earl really wants to bring about.
10.15 p.m.
LORD BYERS: We were asked by the noble Baroness, Lady White, why we were not intervening. I think, having heard the Government, it might have been much more expeditious if we had heard them at an earlier stage, because I for one am still extremely confused as to what the position is, and I think this is a subject which is of so much concern to so many people, so many bodies of people, that what we should ask the Government to do, if the noble Earl, Lord Halsbury, agrees, is really to produce a position paper so that we know that these individuals, who are wondering about their rights on the ballot, their rights to recognition and so on, are going to have their rights properly safeguarded. If we could have a position paper on this subject which we can all study (because I do not think there is any argument of a partisan nature here) I think it would help in improving the Bill. The noble Lord went through a very detailed brief at speed, and we should like to be assured that the details he put to the Committee in a very considerate way are such that we shall be able to give proper safeguards to those bodies which have a real concern in this matter. I personally would suggest to the noble Earl that perhaps we should be satisfied at this stage with what has been said.
THE EARL OF HALSBURY: If I may follow the noble Lord, Lord Byers, I should be satisfied to withdraw the Amendment at this point on the understanding that we shall hear more of this matter and that it will be in order to study it in the interim and bring it up again, perhaps on Report stage, when we have made a little further progress in understanding it. I do not wish to take up the time of the Committee by forcing a Division. I am sorry; should I give way to the noble Lord?
LORD DELACOURT-SMITH: Before the noble Earl actually withdraws his Amendment, which I gather is his intention, I should be grateful if the noble Lord, Lord Drumalbyn, would clarify one passage in the long statement which he made—a passage which I think is peculiarly appropriate to the clause which is actually before us. He was dealing, at the point in which I am interested, with the situation in which professional workers, along with a substantial number
772
of others, are represented by a single organisation in an agency shop agreement. As I understood it, his guidance, as it were, to professional men in that situation was that they should be disposed to exercise their rights to be non-members of the union which was the agency shop agent, and pay the contribution. That immediately raised in my mind the thought that they would then have no representation. But as I understood it, the noble Lord went on to say that, even if a whole group of people withdrew from the union, because they were paying contributions to the union the union would have a duty to them. This seems to me a very strange and confusing concept, because I do not quite understand how a trade union can effectively discharge a duty of representing a group of its members if those members have in fact withdrawn and ceased to be members of the union. I assume that this applies to virtually the whole professional group.
LORD DRUMALBYN: No. I think at this point I could well intervene, because I think the noble Lord has not got this right. I was not talking about the formation of a group at that time: I was merely talking about what an individual could do, and it surely is right that if a sole bargaining agent has negotiating rights in an agency shop on behalf of a number of descriptions of workers, they should negotiate fairly on behalf of all those descriptions of workers even if a certain number of individuals—and it certainly would not be all; it is not the whole group—do not remain members of the union.
LORD DELACOURT-SMITH: I am so sorry; but I think it is important that we should have advice. As I understand it, the noble Lord envisages a situation in which the individuals or this group of people may feel there is some threat to their professional standards, or to the observance of their professional standards of conduct.
LORD DRUMALBYN: No, the noble Lord is looking at the collective situation; he is not looking at the point of view of the individual. I am talking about the point of view of the individual here: that the individual can opt out of membership. It is possible that a number of individuals may form a group belonging to the same union, and then

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that group could raise a recognition issue in the same way as I indicated that it could raise the recognition issue if it were already represented separately on a joint negotiating panel.
LORD DELACOURT-SMITH: I am sorry; I still do not understand the position put by the noble Lord, and I do not think that I am the only one.
LORD DRUMALBYN: It is very complicated.
LORD DELACOURT-SMITH: I appreciate that it is very complicated, but I am addressing myself to one aspect only, that of the agency shop in which it appears that a group of people may feel, because they are professional men, that their professional standards of conduct are likely to be prejudiced by some instruction which the union may give them. I think that is the case put by the noble Lord, is it not?
LORD DRUMALBYN: Yes.
LORD DELACOURT-SMITH: If these people as individuals withdraw from the union and become contributors, not members, is the noble Lord saying that the union has a duty towards them?
LORD DRUMALBYN: Yes.
LORD DELACOURT-SMITH: How is that duty to be discharged if none of them with those special problems is a member of the union?
LORD DRUMALBYN: Perhaps the noble Lord will read Clause 10 which makes it quite clear:
"'agency shop agreement' means an agreement made between one or more employers and one or more trade unions whereby the employer … agrees, in respect of workers of one or more descriptions specified in the agreement"
If the workers are specified in the agreement, then that is the body which has the negotiating rights and the duty to negotiate with the employer.
LORD TAYLOR OF MANSFIELD: Could the noble Lord explain to me—I am a little confused, and I did not wish to interrupt the noble Lord because we are dealing with—
LORD BYERS: May I appeal to the noble Lord? The noble Earl, Lord Hals
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bury, was in the process of withdrawing his Amendment. What we should do is to look at the statement in the light of Hansard. It is a very complicated one, and if we go on trying to dispute it now we shall merely waste time. May I appeal to the noble Earl to withdraw the Amendment?
LORD TAYLOR OF MANSFIELD: It would not take me more than two minutes.
LORD SHACKLETON: May I interrupt the noble Lord? The noble Lord gave way, and my noble friend wishes to raise a point. This is a Committee stage, and we are not obtaining great clarification from the Government at the moment, however hard the noble Lord may try. I assume, and believe, that my noble friend has a relevant point to make in relation to the list, Before the noble Earl withdraws the Amendment I hope that my friend will be able to make his point in a very short time.
LORD BYERS: I think this is preposterous. The noble Lord has come in in the middle of this debate, which has been extremely difficult and complicated. The noble Earl, Lord Halsbury, was in the course of withdrawing his Amendment. He has given way to three or four speakers, and I really do think that he should withdraw this Amendment.
LORD SHACKLETON: I was in at the beginning of the debate and we have a certain obligation to our colleagues in this Committee. I know perfectly well that the noble Earl, Lord Halsbury, was about to withdraw his Amendment, but there were certain points that had to be made; they were made and they were very interesting. I really find it intolerable that the Leader of the Liberal Party at this moment should dictate how noble Lords should behave. We should get on very much faster if my noble friend were allowed to make his point. He said it is a short one and I am sure that he will make it so.
LORD TAYLOR OF MANSFIELD: I have sat through the whole of this important and intricate debate. Out of courtesy to the noble Earl I did not want to interrupt him and so destroy his train of thought. But what has puzzled and confused me during this discussion has been

775
the matter of definition. If the Government are going to have another look at the matter, can we have defined exactly where professional status and qualifications begin? Will that be the job of the C.I.R.?—because all we have heard this evening has concerned doctors, chartered surveyors, biochemists and university people. But as industry becomes more sophisticated, there are many people who regard themselves as professional people but are not so regarded by others. I should like the Government to consider giving a definition of where professional status and qualifications begin. I say to the noble Lord, Lord Byers, that that is the only point I wish to make.
LORD DRUMALBYN: I think it obviously best to leave this question to the K.I.R. which has to decide what to recommend in these cases. I have taken note of the proposal made by Lord Byers and I will certainly look to see whether that is possible.
THE EARL or HALSBURY: I think that this Amendment has served a useful purpose, if only to provoke a discussion which will convince the noble Lord, Lord Drumalbyn, that there is much more thought to be put into this and that there is real disquiet among the professional ranks—and not only there but on the Back Benches of all Parties in your Lordships' House. It would be wrong to press the Amendment to a Division, but I think that the point needs further study. The reply of the noble Lord, Lord Drumalbyn, was long and technical, and I shall study it in great detail in HANSARD to-morrow. I think that there were some points made, but that some of them were based on a misunderstanding. The professional bodies are in a state of evolution in these matters. Many of them are bringing in their own trade unions as is shown, for example, by the existence of the United Kingdom Association of Professional Engineers, a "pukka" trade union affiliated to the T.U.C. but with membership confined to chartered engineers. I think that this matter needs more study, but meanwhile I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
10.28 p.m.
LORD DELACOURT-SMITH LORD DELACOURT-SMITH moved Amendment No. 82:
Page 8, line 39, leave out ("Industrial Court") and insert ("Commission on Industrial Relations").
The noble Lord said: I beg to move the Amendment standing in my name on the Marshalled List and I think it might be convenient to take with it Amendment No. 83 because, clearly, the two Amendments form part of a whole. This Amendment deals with the situation in which one or more trade unions desire to enter into an agency shop agreement with an employer, or where a joint negotiating panel desires an employer to enter into such an agreement and the employer is unwilling to do so. In that situation the trade union or trade unions, or the joint negotiating panel, or the employer may make an application. As the Bill stands, the application may be to the Industrial Court and the Industrial Court would take certain action if it were satisfied on certain conditions set out in subsection (3). The purpose of the two Amendments is to pass the handling of this situation not to the Industrial Court but to the Commission on Industrial Relations.
The general reason why we make this proposal is that it is our belief that the more one can have a matter of this kind handled by the Commission on Industrial Relations, with its industrial relations expertise and its flexibility of action, rather than by an Industrial Court, operating inevitably on legal rules, with a legal approach and a legal tradition, the better the arrangements will be. I think there is little need for me to amplify the point. As I think will be known, we on this side of the Committee have always preferred the Commission on Industrial Relations approach to the Industrial Court approach; and we are concerned, of course, as we have made clear, that the role which the Government have selected, or have described in this Bill, for the Commission on Industrial Relations is likely to prejudice a great deal of the value of its operations.
We should therefore like to begin by suggesting that in the particular kind of situation with which this part of this clause deals, the Commission would be

777
a much more appropriate body to undertake an examination and make a report in a direct way, rather than that the matter should be passed to the Industrial Court. I beg to move.
10.30 p.m.
LORD BELSTEAD: These Amendments, as the noble Lord. Lord Delacourt-Smith, has explained, are designed to eliminate the role of the N.I.R.C. in the consideration of applications for the establishment of agency shops and the approval of closed shop agreements. The Court's functions with regard to agency shop applications are to receive the applications and then refer them to the C.I.R., and it is this process to which these Amendments take exception. The applications are to be passed on to the C.I.R. by the Court after the Court has ensured that consideration is not precluded by any provisions of the Bill itself and that the union specified in the application is recognised by the employer in respect of the workers concerned. After a ballot has been held, as arranged by the Commission, the Court has responsibilities finally to make orders under Clause 12(3); and of course it also has the function of ensuring that an application to challenge an agency shop agreement shall have the support in writing of one-fifth of the workers concerned. The respective provisions to which these Amendments take exception maintain, in the Government's view, the distinction between the judicial functions of the Court and the advisory functions of the C.I.R.; and these Amendments would eliminate this distinction by transferring judicial functions to the C.I.R. which the Government believe is not really constituted to exercise them.
May I clarify two points which are important? First, there is nothing in the Bill to prevent employers and trade unions from agreeing to operate an agency shop quite voluntarily. Indeed, we should expect that the vast majority of agency shops will arise from voluntary agreements, and I think it was on the last Amendment that my noble friend Lord Drumalbyn referred to the possibility—maybe the frequent possibility—of existing closed shops becoming agency shop agreements. Secondly, the Court is not empowered, in its part in these agency shop considerations, to reach arbitrary decisions; and this, I feel, is
778
an important answer to the case which has been put forward by the noble Lord, Lord Delacourt-Smith.
First, the Court must be satisfied under Clause 10(3) that the case is not precluded because it may be less than two years since the same descriptions of worker; have voted against an agency shop; and the Court must be satisfied that the trade union side is recognised by the employer as having negotiating rights for the workers concerned. If on this point the Court is not satisfied it is the Commission—not the Court—which really gives the final advice whether the trade union side is effectively the sole bargaining agent for the workers, so that the agency shop agreement machinery should continue to proceed. Finally, if a ballot is needed, the N.I.R.C., not by some arbitrary decision but by the result of a democratic ballot, is simply the judicial instrument to make an order following the majority verdict.
The provisions of the Bill which allow the Court, with the advice of the Commission as I have sought to explain, to consider applications for agency shop agreements will operate only when there is a dispute about whether the agency shop should be established. Very often—let us be perfectly frank—it will probably arise when an employer is resisting a union's claim for an agency shop. In those circumstances we feel that in the last resort there is a judicial function which needs to be fulfilled and the Court is the appropriate body to fill that role. The Commission will investigate the matter, and may indeed achieve a voluntary settlement. That is what Parliament hopes will result. At the end of the day there must surely be a procedure for resolving the sort of dispute which seems incapable of solution. The Bill provides such a procedure which we believe, through both the Court and also the Commission, will be reasonable and equitable.
10.38 p.m.
LORD DELACOURT-SMITH: If no other noble Lord wishes to address the Committee, I must make some comment on the statements the noble Lord has made. I did not elaborate the point which is made very clearly in Amendment No. 83, that we envisage not a judicial approach by the Commission but an

779
examination of the application, and the submission of a report, as is clear, an effort to secure a generally agreed solution. I would have thought that the discussion we have just been having, relating to the problem of a particular group of workers who in an agency shop situation, may well find themselves in a minority, underlined the wisdom of our approach.
It is not only in the case of the professional workers that some minority might find itself in difficulty as a result of the proposal for an agency shop agreement. There will be a number of cases where minorities will feel that, in one way or another, the agency shop agreement is not likely to fit their circumstances. In such a case surely it is wise not to rely on a judicial function being performed, but on the examination and the conciliatory functions which the Commission will naturally undertake as part of the work set out in our Amendment. I appreciate the circumstances in which a ballot is valuable, but I do not see very prominently in the clause now before us the point to which the noble Lord made reference; that the Commission would be expected as part of its functions to try to exercise conciliation and to produce a generally agreed solution. It seems to me that once it is satisfied on certain points of fact, as set out in Clause 11(1), its task will be confined to the holding of and supervision of a ballot, and defining the precise way in which the ballot should be undertaken. I do not see this reference to, or emphasis on, conciliation to which the noble Lord referred. Ballots are often admirable things, but I think we ought to bear in mind the observations made by the existing Commission on Industrial Relations on this subject. In paragraph 19 of their first general Report the Commission said:
"So far we have not found it necessary to suggest conducting a ballot as a means of ascertaining opinion. We think that ballots can be useful in suitable circumstances, but only for limited purposes. A ballot cannot be a substitute for policy formation and management decision, nor a mechanism for resolving complex issues which are more appropriately dealt with by negotiation. A ballot does not take place in a vacuum, but against a background of known management policy and attitudes which can strongly affect the outcome. It is best used for settling clear-cut limited issues, though in all cases the likely effective outcome needs to be considered. In situations where views are strongly held and fairly divided
780
the effect of a ballot might be to polarise rather than to resolve conflict."
I am bound to say that, as I listened to the discussion on the Amendment put forward by the noble Earl, Lord Halsbury, the force of that paragraph came very much into my mind, and I believe that the Government would be wise to look again at the ways in which they believe it best to deal with the situation (if there is to be an agency shop, or the agency shop possibility is to be considered, and some examination is required because there is not agreement between the parties) the carrying out of this examination by the Commission is undertaken with a view to trying to find a generally agreed solution rather than imposing what would in the end be a legal decision based very largely on the pure ascertainment of fact and the holding of a ballot. I hope the Government will be prepared to look at this issue again.
LORD BELSTEAD: I must say that the noble Lord, Lord Delacourt-Smith, has made it appear as though there is a considerable gulf between the two sides of the Committee. I think in this matter I would put it to your Lordships that there is not. The Amendment simply requires the C.I.R. to examine an application under an agency shop and to make a report and recommendations, presumably on the feasibility and the strength of the case—
LORD DELACOURT-SMITH: And to meet the employers.
LORD BELSTEAD: And to meet the employers. The Bill deems the case not feasible, on two grounds: if within two years the same description of workers has already decided against this proposal, and on the recognition point. The C.I.R. in this procedure plays a vital role, for consultation, conciliation and agreement, in resolving negotiating rights, and although I entirely admit that the Bill is more specific about the two-year pause which must take place since the last time there has been a decision on an agency shop, I cannot believe that the examination of an application by the C.I.R. which the Amendment calls for would not take into account the known views and the past views of the workers concerned.

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The noble Lord, Lord Delacourt-Smith, asked me about my reference to conciliation in the matters which the C.I.R. will have under its control. They can conciliate throughout their investigation in this matter; but I was really referring to Clauses 42 to 51 on negotiating rights, which I know is a matter which has been gone into at length on the previous Amendment, but which comes up again on this Amendment in relation to subsection (3)(b). Those clauses are simply studded with the role of the C.I.R. in its conciliation capacity. I entirely admit to the noble Lord, having said that the two sides of the Committee are reasonably close, that there is the final analysis where the Bill holds that disagreements should be resolved, not by force, not by Government order, not by any abdication of responsibility, but by the democratic wish of the workers concerned, by the ballot box. That is the only answer I can give to the noble Lord when he criticises and draws on the Donovan Commission with respect to ballots. The N.I.R.C. ballot is the means by which the wish of the majority may finally be implemented.
May I point out, before I finish, that under Clause 12, if an employer resists a ballot decision, the trade unions may complain to the N.I.R.C. under Clause 98, and the employer may be ordered to fulfil his duty; and on the other side of the coin, if a striking union breaks an agency shop agreement the N.I.R.C. can order the union to refrain under Clause 97. I should have thought that this seems self-evidently just. But the question which surely the Committee and the whole country must ask is: at the end of the day is the Opposition saying that what they wish to do is to give the Commission compulsory powers? May I take the beginning of the agency shop process? The first Amendment, No. 82, refers to the statutory consideration which the N.I.R.C. must give to the application for an agency shop before the Commission can do their examination. This is no more than a sifting, and in no way removes the investigating role of the Commission. On this side we think it is hardly right that the same body should vet these cases and subsequently go on to examine them, which is what would happen if we gave both these powers to the Commission.
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I have tried to make it clear that in finally making an order under the agency shop procedure the Court should be a means of last and not of first resort, after the Commission and the conciliation services of the Secretary of State have been exhausted. And when such an order is made it will reflect, not an arbitrary decision, but the majority wish of those concerned. The Government believe that that majority decision will be of benefit to both sides of industry.
LORD DELACOURT-SMITH: I am sorry to press the noble Lord on this, but these points are extremely important, and if we do not get them right we are going to have great difficulties in industrial relations. The noble Lord says that under the arrangements set out in these clauses the Commission on Industrial Relations will have a conciliatory function; it will be up to them to do what they can to promote an agreement. He also said that the conciliation services of the D.E.P. will be available. With respect, I think that he should clarify this. Does he not mean that the conciliations services of both the N.I.R.C. and the D.E.P. would be available at an earlier stage. Typically, this is dealt with in a liter part of the Bill, which makes it so confusing. But this question would arise when floor bargaining arrangements were being discussed.
So we come to what is a critical point—and just how critical it is was brought out in the discussion we had on the last Amendment moved by the noble Earl—for many groups of workers covered by agency shop agreements—not solely professional groups; they will not be the only minorities anxious to ensure that their special problems are safeguarded. Is it not precisely here—where, in the Government's view, we are making this significant move from the floor bargaining agency to the agency shop agreement—that we need conciliation—need an experienced team of people to go in and try to sort out something that is going to be acceptable to everybody? The noble Lord says that there is this arrangement, and if the ballot goes one way somebody will be able to appeal to the N.I.R.C., and if it goes the other way somebody else will be able to appeal. Really, employers and trade unions do not primarily want opportunities for

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making debating points at the expense of the other side before some legal tribunal. They want a satisfactory, commonsense, genuine solution of a thorny problem. I do not see that we are going to get that from what is set out.
There is no getting away from the fact that the Commission have scope to do only two things. They ascertain certain facts (that is Clause 11(1)), and having ascertained the facts they can determine the coverage and direct the organisation of a ballot or ballots. Having done that, they report the result of the ballot to the N.I.R.C. There is no scope for, conciliation here; there is no scope for the sort of constructive examination and attempts to find an agreed solution, which is what I believe is the value of any outside body coming into a tricky situation such as that envisaged in this clause is likely to be. I really wish the Government would accept the seriousness of this, and at least look at the problem again.
VISCOUNT AMORY: I share the noble Lord's belief in the importance of the conciliation role of the C.I.R. The noble Lord seems to agree that probably the C.I.R. would have come in at an
earlier stage with their conciliatory efforts. I should have thought that, once the C.I.R. had come into a difficulty like this, throughout the rest of the story, as it were, they would probably continue in a conciliation role, and would not be specified at every stage. I should have thought that the background of a problem like this would be that the C.I.R. would be continuing their conciliation efforts until the problem was satisfactorily settled, although not expressly instructed to do so in the Bill.
LORD DELACOURT-SMITH: On this complex Bill one cannot avoid constantly popping up as points are made. As I read it, there is no reason to think that the C.I.R. will have been in at an earlier stage on the majority of negotiations for an agency shop. They may have been. If they have been involved at all, they will have been involved at an earlier stage. It would not be at this stage, but at the earlier stage.
10.54 p.m.
On Question, Whether the said Amendment (No. 82) shall be agreed to?
Their Lordships divided: Contents, 29; Not-Contents, 94.

CONTENTS

Archibald, L.

Diamond, L.

Ritchie-Calder, L.

Bernstein, L.

Gaitskell, Bs.

Sainsbury, L.

Blyton, L.

Gardiner, L.

Serota, Bs.

Brockway, L.

Garnsworthy, L. [Teller.]

Shackleton, L.

Brown, L.

Hilton of Upton, L. [Teller.]

Shepherd, L.

Burntwood, L.

Hoy, L.

Taylor of Mansfield, L.

Champion, L.

Hughes, L.

Wells-Pestell, L.

Collison, L.

Janner, L.

White, Bs.

Davies of Leek, L.

Milners of Leeds, L.

Wynne-Jones, L.

Delacourt-Smith, L.

Popplewell, L.

NOT-CONTENTS

Aberdare, L.

Chelmer, L.

Elliot of Harwood, Bs.

Abinger, L.

Chesham, L.

Essex, E.

Ailwyn, L.

Conesford, L.

Exeter, M.

Allerton, L.

Cottesloe, L.

Ferrers, E.

Alport, L.

Cowley, E.

Fortescue, E.

Amory, V.

Crawshaw, L.

Gisborough, L.

Barrington, V.

Cromartie, E.

Goschen, V.

Beauchamp, E.

Cullen of Ashbourne, L.

Gowrie, E.

Beaumont of Whitley, L.

Daventry, V.

Gray, L.

Belstead, L.

Davidson, V.

Grimston of Westbury, L.

Blackburn, Bp.

Denham, L.

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

Brabazon of Tara, L.

Digby, L.

Bridgeman, V.

Drumalbyn, L.

Halsbury, E.

Brooke of Cumnor, L.

Dudley, E.

Hankey, L.

Brooke of Ystradfellte, Bs.

Dundee, E.

Harvey of Tasburgh, L.

Byers, L.

Ebbisham, L.

Henley, L.

Caldecote, V.

Eccles, V.

Hood, V.

Carrington, L.

Effingham, E.

Ilford, L.

Jellicoe, E. (L. Privy Seal.)

Poole, L.

Sandys, L.

Kemsley, V.

Radnor, E.

Sempill, Ly.

Lansdowne, M.

Rankeillour, L.

Sinclair of Cleeve, L.

Lauderdale, E.

Reading, M.

Strange, L.

Lothian, M.

Reay, L.

Strathcarron, L.

McCorquodale of Newton, L.

Redesdale, L.

Strateden and Campbell, L.

Malmesbury, E.

Redmayne, L.

Terrington, L.

Mansfield, E.

Reigate, L.

Thorneycroft, L.

Mowbray and Stourton, L. [Teller.]

Rothermere, V.

Tweedsmuir, L.

St. Aldwyn, E. [Teller.]

Tweedsmuir of Belhelvie, Bs.

Moyne, L.

St. Helens, L.

Vivian, L.

Nugent of Guildford, L.

St. Just, L.

Ward of Witley, V.

Orr-Ewing, L.

St. Oswold, L.

Windlesham, L.

Pender, L.

Sandford, L.

Yarborough, E.

On Question, Amendment agreed to.

LORD DELACOURT-SMITH: Amend No. 83 is a paving Amendment to the subsequent Amendment. I would wish at this stage, to move it formally, and perhaps the Committee might defer a decision until the subsequent Amendment and the one which follows it.
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD ALPORT): Amendment No. 83?
LORD DELACOURT-SMITH: Yes.
THE DEPUTY CHAIRMAN OF COMMITTEES: That is the one that was discussed previously.
LORD DELACOURT-SMITH: I am sorry. No. 83 is not moved.
THE DEPUTY CHAIRMAN OF COMMITTEES: Not moved. Amendment No. 83A: Lord Delacourt-Smith.
LORD DRUMALBYN: It would be convenient, I think, if we took 83A, 84A and 88D together.
LORD DELACOURT-SMITH: Perhaps Lord Archibald will take them.
11.3 p.m.
LORD ARCHIBALD: I hope I may have permission of the Committee to move the Amendment standing in the name of Lord Willis. I believe it would be for the convenience of the Committee, and would be acceptable to my noble friends who have their names down to it, if we took with it Amendment No. 84A. I am in a little difficulty because I have been called as though I had my name down, and I am not quite sure whether I am in Order. I have asked the leave of the Committee to move the Amendment on behalf of Lord Willis. I should say that my noble friend—
THE DEPUTY CHAIRMAN OF COMMITTEES: Perhaps I could just say that I understood that the noble Lord, Lord Delacourt-Smith, was actually moving Amendment No. 83A; and it was proposed that 83A, 84 and 84A should be taken together. No. 83A is, I understand, a paving Amendment; 84 is the one on the substance of which Lord Archibald intended to speak, and therefore We are in fact on 83A, although Lord Archibald will not be moving but will he talking on the substance of 84.
LORD DRUMALBYN: It may help the noble Lord if I say that it seems to me as if the substance of 84A is very similar to 84.
LORD ARCHIBALD: That is why I was asked by my noble friends who had put their names to 84A if I would speak to 84 and 84A together. I should perhaps say by way of introduction that my noble friend Lord Willis has asked me to apologise to the Committee for his absence to-night. It is perhaps appropriate chat he should have asked me to speak to the Amendment on his behalf, because when he was the leader of the Screen Writers' Guild and I was the Chairman of the Federation of British Film Makers we agreed the very first agreement between film producers and screen writers. We felt, perhaps self-importantly, that it was a very important, almost an historic occasion, that there had never before in the history of the film production industry been an agreement between producers and writers, so we celebrated the signing of this agreement with a Press conference and a cocktail party.
The purpose of these two Amendments, 84 and 84A—I know 83 is purely a paving Amendment—is to remove an ambiguity in Clause 10(3)(b). I do not think there is in this any political or

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partisan element. I hope the Amendments will find support from all sides of the Committee. The purpose of both Amendments is to safeguard the rights of freelance workers. It may well be—and I look to the Government Benches at this moment—that the Government are prepared to accept one or other of these Amendments, or the basic principle which is embodied in them, in which case the Committee will be spared the speech which otherwise I will have to inflict on it. Apparently not ! Then I must go on. My noble friend Lord Willis would have been much more eloquent on this subject, and much more intimate with it than I am, as right until the present time he has been acting on behalf of the writers. So being somewhat out of touch with it I cannot be as detailed as he would be, but I will do my best to explain the basic purpose of the Amendment.
Let us look at how Clause 10 would operate. Suppose a trade union wants an agency shop, and the employer refuses. Under Clause 10(2) the trade union may apply to the Industrial Court. Then if the Industrial Court is satisfied on the two matters covered by Clause 10(3) it will request the Industrial Relations Commission to conduct a secret ballot of the workers who would be affected by such an agency shop. This is supposed to be an advantage given to the trade unions in this Bill. But let us see how it would apply to a trade union in which the majority of members are freelance workers. There are such unions. The Writers' Guild is one, and then there are the Musicians Union, the A.C.T.T. and the National Union of Journalists, who all have freelance sections.
May I take a theoretical case which I think illustrates the situation. Suppose the Writers' Guild or one of the other unions in a similar position wants an agency shop—let us take a very neutral case—say with the B.B.C., and the B.B.C. refuses. The union then applies to the Court under Clause 10(2), and the Court must be satisfied that there had not been a ballot on this in the preceding two years. I do not think this presents any difficulty. But the Court must be satisfied that the applicant trade union is recognised by the employer—in my theoretical case the B.B.C.—and I quote:
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"as having negotiating rights in respect of workers of the description or descriptions so specified".
But here comes the nub of the problem. Negotiating rights are defined in Clause 42(b) and are in respect of employees; and as I understand it the definition of "employee" in Clause 158(1) means a person who works under a contract of employment. But a freelance worker—a freelance writer, for example—does not work under a contract of employment; he works under a contract for services. He may make a contract with a film producer or a television producer to write a script for a certain fee and to deliver it at a certain date. It is a contract for services and not, strictly speaking, such a contract as to make him an employee. So if we put all those definitions together, it would appear to me—though I am no lawyer—that the term "negotiating rights", when used in the Bill, means rights held by the trade union only on behalf of its members who are employees. In this context a trade union of freelance workers could be held not to hold negotiating rights for its members. It would appear then that the Court could hold, on an application from the union on behalf of its freelance members, that the Court was not satisfied that the union did in fact hold negotiating rights.
I am quite sure that this is not what the Government intended, and that is why at an earlier stage I invited them to say that they would accept the principles embodied in these two Amendments. The ambiguity lies in the fact that the term "workers" is defined in Clause 158(1) to include workers who are employees or freelances. It could be argued that by using the term "workers" in respect of employees the Government intended that negotiating rights could be held by a union whose members are all, or virtually all, freelance workers. I am sure that is the intention of the Government in the Bill, but if my construction of the Bill is correct then this intention is not technically possible. I therefore beg to move.
LORD DRUMALBYN: I am grateful to the noble Lord; I think he has explained this Amendment to the satisfaction of the Committee, and the Government are prepared to accept it.
SEVERAL NOBLE LORDS: Which one?
LORD DRUMALBYN: The one that has been moved, Amendment No. 83A. There is a little confusion here. We were talking to these Amendments together. The effect of them is very much the same. We have accepted Amendment No. 83A, which is a paving Amendment to Amendment No. 84A. The Government could not accept No. 84, which is defective in several respects. The noble Lord explained, quite correctly, rights corresponding to negotiating rights for workers who are not employees. This matter is covered by the definitions concerned; it covers the kind of person he has in mind, and this is what the Government are prepared to accept.
LORD ARCHIBALD: If Amendment No. 84 is not moved, the Government accept Amendment No. 84A?
LORD DRUMALBYN: Correct.
LORD ARCHBALD: Then Amendment No. 84 is not moved.
LORD DELACOURT-SMITH: I beg to move Amendment No. 84A.
Amendment moved—
Page 9, line 14, at end insert—
("(4) In this Part of this Act "rights corresponding to negotiating rights" means rights to participate, on behalf of one or more descriptions of workers who are not employees, in negotiations relating to those workers, with a view to the conclusion or modification of one or more collective agreements.")—(Lord Delacourt-Smith.)
11.16 p.m.
On Question, Whether Clause 10, as amended, shall stand part of the Bill?
LORD DELACOURT-SMITH: This, of course, is the clause to which a number of noble Lords have been looking forward because it has finally set out the proposals for an agency shop. I think we have, on the earlier clauses, when we have had to look forward to this clause and make reference to it in the course of discussion, made our objections to it very clear. As we have said, it is an unsatisfactory compromise which arises from the Government wishing, on the one hand, to maintain the quite abstract principles which they insisted in embodying in a part of Clause 5 and, on the other hand, facing, at any rate to some degree, the facts of industrial life.
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For reasons we have already indicated in earlier discussions, it is not a happy compromise. As I have said on more than one occasion, it is no good my noble friends and I pretending that we like it. The point to which I would particularly refer is that it is a concept which separates the paying of union contributions from the other characteristics of union membership. It is based on the view, or seems to be, that all that the trade union is concerned about in respect of a non-member is the fact that he does not make his financial contribution to the union's funds. This is only a part of the trade union's objection to the non-member. We want to see the non-member playing his part fully in the work of the union, participating in the formation of its policy, accepting the discipline of its decisions, playing a part in exercising his rights, and accepting his obligations, as a union member.
I hope that when the noble Lord attempts to justify the inclusion of this clause he will tell us where the idea of the agency shop originated. It gets very scant mention, if indeed any mention at all, even in In Place of Strife. It has no part in the Donovan Report. I know of no countries on the Continent of Europe which have this concept embodied in their industrial relations legislation, although the noble Lord may be able to quote some examples. It is an innovation in our industrial practice. As I say, it is a compromise which the Government have found themselves forced to put forward because of their own desire to insist upon the appearance in the Bill of the statutory right not to be a trade unionist. I can only hope that if it does not finally disappear from the Bill before we complete all its stages, it will at any rate disappear fairly soon thereafter from the industrial relations scene.
11.20 p.m.
LORD POPPLEWELL: This is an important clause, and it embraces something entirely new to our way of thinking. The idea of the closed shop has been accepted and is growing. But the practice by which a worker must be a member of a union before he enters employment will become an unfair practice under this Bill, and any union which attempts to enforce the closed shop will be liable to legal action An employer will have the right to employ anyone he thinks has the

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necessary skills, and that is contrary to the practice which has been built up, because the unions have a say in safeguarding the skills of their members. Abolishing the closed shop will end the unions' rights in that respect.
The establishment of the agency shop, under which everyone has to pay for benefits, is something which is entirely new. My noble friend Lord Delacourt-Smith wondered where the idea had come from. I have no doubt that he, like myself, feels that it is another American custom which is being introduced here. Money is of least importance to the British trade unionist. The objective of the unions is to follow the principles and ideals of the unity of the people engaged in an industry, and to improve standards of life. There are about 3 million workers in Britain who are working in 100 per cent. trade union shops. We have asked the noble Lord, Lord Drumalbyn, why these changes are being brought about. It is surely reasonable that we should ask that, but nothing has been clearly defined. All we have had are "airy-fairy" statements about unofficial strikes, which the trade unions deplore as much as anyone, and we argue that the frustration caused by this Bill will lead to an increase in the number of unofficial strikes. Last Thursday, I asked a number of questions which the noble Lord, Lord Drumalbyn, failed to answer. I asked:
"… 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 too powerful? … If they are too powerful, and if they exercise their power in an unreasonable way, we should be told."—[OFFICIAL REPORT, 6/5/71; cols. 502-3.]
Under this clause the closed shop agreements would no longer be possible, as a worker would have the right not to belong to a trade union, and, therefore, at once we find a loophole in that system of strict control and discipline that is necessary to get harmonious working between both sides in honouring of agreements. That system could be challenged at any time, and only a registered trade union would be entitled to secure an agency shop agreement. This leaves open a very wide field indeed and I suggest no trade union wants this. As a whole, trade unionists
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take pride in their jobs, and want to get the best and to get discipline within the union membership so that they can speak as one voice, as it were.
As I see it, there are a number of provisos before even an agency shop can operate. Let me name one or two. Point one: only a registered trade union can obtain or continue to operate an agency shop. Point two: to obtain or continue to operate an agency shop, 20 per cent. of the workers must ask the N.I.R.C. for a secret ballot to be arranged by the C.I.R. (so there are two points there: 20 per cent. of the workers must ask the N.I.R.C. for a secret ballot, and then the C.I.R. must conduct it). Point three: it would be an unfair practice if any industrial action was taken on the issue while the C.I.R. was organising the ballot. Point four: only if the majority of those eligible to vote favoured an agency shop could it be introduced. It cuts away from our democratic system; even for the election of a Member of Parliament a simple majority is sufficient. Point five: once an application is made, or refused, it cannot be renewed for a further two years.
These are indeed five important points before even an agency shop can operate. It is even worse. It is not necessary for a majority of shareholders to attend any company meeting or to vote for the board; but, in this instance, before an agency shop can be obtained and set up, 50 per cent. of the people actually entitled to vote must record their votes. There must be a majority decision—and we know how difficult it is to get these ballots and votes from time to time. Therefore, I have no hesitation in supporting the rejection of this particular clause.
11.30 p.m.
LORD TAYLOR OF MANSFIELD: I should like to support the proposal that this clause be rejected. It is impossible to talk about this proposed innovation in industry called the "agency shop" without saying something about the closed shop. The closed shop in industry, as I understand it, takes two forms, pre-entry and post-entry. That is a detailed subject that I do not propose to go into at this hour of the night. However, so far as the closed shop is concerned, there are industries, in both the public and the private sectors, where

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closed shop agreements have been negotiated without doubt to the benefit of industry; and it can be fairly stated, without fear of contradiction, that many employers, like the unions, have come to regard the closed shop as useful at the negotiating table when seeking to make agreements. A union, speaking on behalf of all employees, has to my personal knowledge proved to be an advantage. One could mention industries like coal-mining, electricity supply, the railways, seamen and actors, to mention but a few. In fact there are millions of workers today in industries in which closed shops exist. I saw some figures recently showing that it was estimated that, of the total membership of the Trades Union Congress, two-fifths of 10 million workers in industry were working under closed shop agreements.
This question of the closed shop, as distinct from the agency shop proposed in this clause, is a relatively new growth in trade union organisation and industrial relations. May I take only one example, very briefly—that of coal mining? Up to 25 years ago, recruiting to the Miners' Union was exclusively on a voluntary basis. There was no agreement at all between the trade union and the late coal owners so far as the closed shop was concerned. Up to 1921 and 1926 a very small percentage of mineworkers were not members of the Miners' Union, but that small percentage was at that time a real source of irritation. Time, effort and expense were involved in pointing out to that very small percentage the advantage that there was in negotiations if the union could speak on behalf of the men in the industry. I recall those days before a closed shop in the mining industry was instituted. Frequently we used to have what we called a "show card" day. Those who were in the union were provided with medals by the organisation to wear on the lapels of their coats to indicate that they were members of the union. At that time, when steps were taken by the National Coal Board and the National Union of Mineworkers to establish a closed shop, I confess that I wondered if it was the right way to go. But over the past 25 years I have witnessed so many of its advantages in the coalmining industry that I am now sure it was a good thing a closed shop was instituted. Without unified negotiations
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on all the matters arising, with the changes that have taken place and the new techniques that have characterised the mining industry during that time—along with its contraction, which is a very important matter—I doubt whether the process would have gone as smoothly as it has.
The Donovan Commission gave a great deal of time and attention to this particular problem in their Report. In paragraph 602 they said—and I agree with them:
"prohibition of the closed shop must be rejected".
In my opinion, Clause 10 substitutes for the existing closed shop, which operates in many of our industrial concerns at the moment, the agency shop which, as I understand it, is merely a watered-down type of closed shop. While no-one can foresee the future accurately, I think the conditions as laid down in the agency shop proposals are likely to lead to trouble. These conditions could lead to the formation of breakaway unions or to inviting in another union; moreover, unions will be vulnerable to attacks from employers' associations.
I should like to put to the Minister who is to reply one very pertinent question. Why is it that the clause in the Consultative Document which proposed that it should be an unfair industrial practice for an employer to seek to dominate a union has been dropped? Why does it not appear in this Bill? The Secretary of State, both in another place and on the public platform, has said many times since the publication of this Bill tint he wants to make the trade union movement stronger. In my opinion this legislation of the agency shop will do the opposite, and it will lead to trouble.
The only other thing I want to say is that this particular clause with Clauses 11, 12 and 13, together with Clause 43, are (apart from the proposal of an agency shop) machinery clauses. There will no doubt be some employers unwilling to enter into an agency shop agreement, but on the other hand there will be a number of employers who will agree to the proposals of an agency shop because it will be the nearest thing to what they are operating at the moment in the form of a closed shop. Let us look at the machinery that is to be provided in the event of an employer being unwilling to enter into an

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agency shop agreement with the trade union. The trade union will go to the N.I.R.C.—and perhaps the employer will, too—and the N.I.R.C. will refer the matter to the C.I.R. The matter then goes back again to the N.I.R.C., and a ballot will have to be taken. So, in my humble judgment, the creation of this elaborate machinery upon the planning of all types of closed shop will cause trouble and dissatisfaction so far as the members of the trade unions are concerned.
LORD BROWN: I should just like to say to my noble friends that there seems to be something strangely illogical about this proposal to delete Clause 10. Having passed Clause 6, which makes void pre-entry closed shop agreements, I wonder how many trade unions in this country would not rather have what my noble friend has just referred to as "a watered-down version of the closed shop" than nothing at all. I would take a lot of bets that if unions were able to speak with great sincerity in public they would say, "If we cannot have the pre-entry closed shop we had better have the agency shop agreement rather than nothing"—unless they all hope to get exemption under Clause 16, giving special provision for the approval of agency shop agreements. But I think most of them know that the likelihood of an ordinary union's getting such exemption is very remote indeed. So I do not understand the logic of seeking to omit Clause 10. It would appear to be in the interests of the unions to keep it there.
11.43 p.m.
LORD DRUMALBYN: The noble Lord, Lord Brown, seems to have almost a monopoly of common sense on that side of the Committee at the moment. Certainly, the Committee having already passed Clause 6, it is perfectly logical that we should seek for some solution other than the closed shop; and this is exactly what has been done in the agency shop agreement. The noble Lord, Lord Delacourt-Smith, talked about the individual worker playing a part. I hope that the argument about professional people will not cause us to be distracted from what I think is the universal desire that the individual should play his part in a trade organisation. Emphasis is placed on this aspect by the subsection in Clause 5 which permits the employer to encour-
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age the worker to join a trade union. He is allowed to do that, to encourage a worker to join a trade union; and it is our intention that the individual worker should play his part. But is he more likely to play his part if he joins a trade union of his own free will, or if this matter as to who is to negotiate for him is settled over his head entirely, without any chance of his objecting?
So far as the agency shop is concerned, what happens is that the employer and the unions may negotiate together, and if the employer is pretty sure that the majority of the workers support the idea of an agency shop, then no doubt he will enter into an agreement. If he is not certain of that, what he should then do is to refer the matter to the Industrial Relations Court. The ballot will take place and the employer and everyone will be able to find out whether the workers support the idea of the agency shop. Alternatively, if the employer is resisting and the union believes it has the full support of the workers, it will go to the Industrial Relations Court and ask for a ballot to see whether a majority supports the idea. So either way the will of the majority will prevail. Is not this a very democratic and British way of doing things? I do not know whether anywhere else things are done exactly like this. It is not exactly comparable with the United States. There are differences. particularly in the right of the individual not to belong to a union if he chooses.
I commend this clause to your Lordships. The Government envisage that this is a solution which will grow and spread. It will certainly facilitate orderly bargaining. It is based on the recognition of a union or unions representing specified descriptions of workers. It will clarify the situation. It will avoid leapfrogging. Where you have a single agency shop negotiating on behalf of the whole plant everyone will be involved and the interests of everyone will be regarded at the same time and in the same light. This will not always be the situation; in some cases it will be more desirable to have several agency shops within the same plant. There may be other cases where an agency shop may spread across the whole industry. The choices open are almost infinite; this is the way it should be. But once this question has been settled it is right that there should be

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stability and that this situation should last for two years, or for as long as it is not challenged. I think this is a very good solution, and l hope that your Lordships will support it.
I have been asked what is the real reason for the clause. It is quite simply, that we want, as Clause 1 has set out, to encourage stability in collective bargaining. This is the way we commend to the Committee to achieve it. It is based on the will of the majority. I say to your Lordships that this is the only way you may be sure that unions are representing those they purport to represent. If they have the support of the majority, this kind of solution will last and there will be orderly bargaining between the two sides. It will he possible to reinforce discipline right throughout on an agreed basis; and we shall have far fewer unconstitutional strikes because there will be good procedure agreements and a much better observance of them. Responsibility will be laid where it belongs: the overall responsibility for industrial relations on management; the responsibility for seeing that when the trade union pledges its word, that word is kept and that unconstitutional strikes are reduced to a minimum.
LORD SHACKLETON: The awful thing about listening to the noble Lord, Lord Drumalbyn, is that one thinks he believes what he is saying. What he has been saying is totally unintelligible, not only to noble Lords on this side of the Committee but also to those on the other side. He has been—I do not know whether the noble and learned Lord the Lord Chancellor wishes to say something; perhaps he does not, so perhaps he will keep quiet. The noble Lord, Lord Drumalbyn, has been talking rather like someone selling a panacea at a fair. It is going to cure unofficial strikes. It is going to produce democracy. This is part of the noble Lord's eloquence, and I only intervene on two grounds. One is because I know the Government want to get a long way to-night, and we are, I am afraid, going to take some time, however much we hurry this up, and I shall talk very briefly. I would only say that many people who have experience in industrial relations, irrespective of Party, do not believe that this is one of the better parts of what anyway is a fairly bad Bill.
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I would say to my noble friend, Lord Brown, that if he thinks the passing of a clause in an earlier part of the Bill commits one to perpetrating a major nonsense in a later part of the Bill, which we do not believe will work satisfactorily, I can only say that by the time he has heard the end of this stage he will find that tins type of simple and very attractive logic from my very experienced noble friend is not relevant to the business of discussing how in fact you probe a Government's intentions and the meaningfulness of what they propose to do. I must say I am very depressed by what the noble Lord has said, because we were hoping that when we put forward arguments—and admittedly this is that the clause stand part, we do not want to go over it all again—we did hope that in certain practical considerations they would meet us. We have been given one concession. I am bound to say that this is an interference with the arrangements which experienced trade unionists are trying to make, and they will find it very discouraging when they read the speech of the noble Lord, Lord Drumalbyn, on what they think this clause is going to achieve.
LORD DRUMALBYN: Before the noble Lord sits down, may I ask him does he not appreciate that what this clause does is to provide a means of peaceful settlement of a dispute, where there is a difference of opinion between the two parties whether or not there should be an agency shop, which could not otherwise be settled without industrial trouble.
11.53 p.m.
LORD DAVIES OF LEEK: This is one of the most—I am sorry; I cannot help the groans, grizzles or anything else, and quite f rankly if I am taunted I shall speak for air hour. Never mind the Front Bench saying to me, "Keep it short", either. I am not being told by my Front Bench whether to keep it short or long on an issue like this. It is an absolutely vital issue to the history of the trade union movement, and I will spike it down as I go along in the way I want to do it. The first thing is that since 1871—[Interruption.]—The Liberal Party, with its usual arrogance and inability and lack of potency, is uttering these remarks, which are useless, as usual. Since 1871 the trade union movement, after a hundred years or more of struggle, by trial and error, and

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by sometimes supporting the Conservative Party, sometimes supporting the great Party of the gentlemen below me on my right hand side here, won the right to be left free to form and administer their own trade unions. Now we are told by the noble Lord opposite, living in Cloud Cuckoo-land, that we have now discovered a panacea, we have written within a legal framework a policy for the trade union movement. It is a highly intelligent trade union movement, with masses of better opportunity for education than we ever had in the early days.
That trade union movement has been one of the most responsible in the history of the world. It gave its sacrifices in the war the same as anybody else, it gave £1,819,000 of its money interest free as war loan to this country when it was in a jam. It cut out many of its restrictions to help with that war. But there is one warning. Even at the height of that war, in the pits at Betteshanger, when there was illegal treatment of the miners, despite the penalties of a war, and despite the catcalling and the name calling, no legal restraint, or Order 1305, was able to put those men in gaol and keep them there in their thousands.
For Heaven's sake, let us be a realistic nation. The Conservative Party, which won the last Election on a lie and on propaganda that was useless, is throwing away one of the finest things in the strength of the people—the element of give-and-take. I remember the General Strike of 1926. In Wales, we did not want the troops in, and we played rugby with the police. That was all part of the effort to gain decent standards of living. To-day, all this is going to be thrown away. Up to now the law has had no say as to which union a worker will join. Now the law comes into it. If noble Lords opposite do not understand it, I have no time to explain it to them; if I did, I should be here until to-morrow morning. At one time all matters affecting the union were left in the hands of its members. Do noble Lords opposite realise that the paid agitators we used to see in the United States—I have been in Detroit and seen how strikes happen there—could enter the trade union movement here more easily than ever before? Let us spike it down.
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I cannot understand the noble and learned Lord the Lord Chancellor grinning and laughing about this matter, with his learned background and wisdom. I do not see what there is to laugh about. These inane remarks of the noble and learned Lord are not worthy of the dignity of his office. There were times in the history of the Tolpuddle Martyrs and of the T.U.C., when people who did not have his opportunity of education, who could hardly speak grammatical English, stood up to the law. They knew that the law was always against them. They were deported. So please, in this part of the 20th century, do not let the noble and learned Lord be frivolous and jocular about one of the most important things in the trade union movement—that is, losing the liberty of the 1871 Act.
If that is not understood by noble Lords opposite, let me explain it. If 20 per cent. of the workers vote, they can get a decision and break the agency shop agreement; then there can be a two years' delay. Nobody seems to have talked about this. Then they can have another vote. But if 50 per cent. of the people in the shop do not vote, there is complete chaos so far as the agency shop agreement is concerned.
In another place, my right honourable friend Mrs. Barbara Castle showed how some people anticipated how the agency shop system would be used. Speaking of the Post Office strike, if any group of workers were treated scandalously, it was the Post Office workers. They were treated like some red-nosed comic on a fifth-rate theatre stage, with cheap jokes about the whiskers of their leader—this when men's bread and butter was at stake. Why were they treated so? It was because theirs was the only group where this Government felt they could completely control what wages the men should have. Mrs. Barbara Castle (I am taking my time, and I am not going to be put off even by the Front Bench) said—I am referring to the Commons Hansard of January 28, column 979—that it has been reported that some staff have been threatened that if they do not strike they will he expelled from the union—
LORD GRIMSTON OF WESTBURY: Would the noble Lord allow me to interrupt for one moment? Is he quoting verbatim from Mrs. Castle's speech?
LORD DAVIES OF LEEK: No; I am paraphrasing. You do not think you are going to catch me on that ! Then she adds that under the Government's Industrial Relations Bill, now in the Committee stage, according to this notice, the closed shops would be illegal. Then comes the 64,000 dollar phrase, that shops would be allowed and staff would have the legal right not to join a union provided they pay the equivalent of the subscription to the union's services. That was spiked on a notice board, not because of any great feeling and swelling of the heart for the trade union movement: it was a threat. With deep sincerity—and not only with sincerity, but with truth—I say to noble Lords opposite that this Bill will not work. I see the sheepish laughter and grins opposite, but my God ! what I am saying will prove to be right. This Bill cannot stand the test of practical living in the trade union movement and in the industrial field. Many large industrialists know this to be true. Able men on that side of the Committee know it to be true. The agency shop—that is where every worker has to pay for union services—is an import from the United States of America. But to the unions in Britain money and collective bargaining are not only the main things.
I remember struggling for the right to get cadmium poison recognised as an industrial disease. The medicos and others know what cadmium poisoning is. I have seen too many people die of it after having worked in brass factories. Its recognition as an industrial disease was the work of the trade union movement, with the doctors and the lawyers whom they employed, and whom they paid well. Let me pay tribute to the medical men and the legal men who for over 100 years, to the best of their ability, have served the trade union movement. Those working in foundries got cadmium poisoning, asbestosis and other kinds of disease, and in the rubber industry the disease of cancer of the bladder, now accepted as an industrial disease. What does the agency shop and all this do about industrial diseases? It does nothing. If I am provoked, I will fetch a list of about 300 Government organisations with which the trade union movement co-operated in wartime and in peace to help when this country has been in difficulty. They ranged from allotment holders and little organisations like that, to their
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breaking all their regulations to produce munitions by reason of working in a factory for 24 hours a day. None of that co-operation is taken into account in this stupid agency shop business.
Now we come to the next bit—and I am taking my time.
A NOBLE LORD: Our time.
LORD DAVIES OF LEEK: Yes. I am taking the Lord Chancellor's time. He has taken ours many a time in the other place and here. If he goes on like that, the sooner he sits on that Woolsack with a bell, the better. I am absolutely disgusted at the way the Lord Chancellor enters into the politics of this matter. I am entitled to say this. I did not think he was here for that purpose: I thought he was supposed to advise us on the law.
VISCOUNT BARRINGTON: I do not want to interrupt the noble Lord's speech, but should I have the sympathy of the committee if I gave a brief history of the Liberal Party? It would not take more than six hours. The future of the Liberal Party would take a little longer. I will gladly give it, though I should have to paraphrase. But I will not give it without your Lordship's permission.
LORD DAVIES OF LEEK: This exposes completely the irrelevance of the Liberal Party today. The noble Viscount thinks it is relevant to talk of the history of the Labour Party while we are dealing practically with a practical clause that the noble Lord opposite thinks is a wonderful discovery. This was talked about 50 years ago in American trade unionism. It is not even new; it was introduced for a purpose in America, and we are introducing it here. This is something which is going to be on the Statute Book a few months from now, if we are unlucky.
I will go back to my point. These agreements would no longer be possible as a worker would have the right not to belong to a union, and strict controls would be imposed before even an agency shop agreement could be concluded; and the agreement can be challenged. You have a secret ballot which would have to be held by order if more than 20 per cent. of the employers requested it? What does that mean? They do not even know. Does it mean by order made by this House; or that we have to have a debate in the other place, or here? The more you go into this in depth the less you

803
find it has been discussed legally. Some body like the Bow Group or a Monday Club group of lawyers have drawn up 90 per cent. of this Bill. This is not the work of able draftsmen, and it is not the work of men who have spent their years in great legal work, or of judges, who are some of the fairest men in the world. It is a tinpot mish-mash of verbiage, mixing ethics and jurisprudence.
The Committee will be delighted that I am coming to my last sentence.
A NOBLE LORD: Hear, hear !
LORD DAVIES OF LEEK: Thank you for the applause. It is no good appealing; there is a brash, abrasive Conservative Government in power—the worst that we have had since 1931. There are great men opposite (I apologise a little for the asperity of my speech); there are able men of different political views who have come from great British families. They have made their contribution to the great
old British oligarchy; to the Church; to the Bar; to industry. They know that this Bill is not a typical British approach to this movement. It is no good begging because we shall get no change. I regret that I have lived to see in power a Conservative Government that has destroyed nearly 150 years' of effort of the trade union movement. Because of the stupid propaganda of the British Press, and groups of the Monday Club, and ultra-Right Wing Tory M.P.s, the impression has been swept through this country that we are being ruined by strikes. Our days lost are the least in the technological world, yet we have fallen on our people with this propaganda. I regret that some people on the other side resented the fact that we were moving that this clause should not stand part.
12.10 a.m.
On Question, Whether Clause 10, as amended, shall stand part of the Bill?
Their Lordships divided: Contents, 93; Not-Contents, 29.

CONTENTS

Aberdare, L.

Eccles, V.

Pender, L.

Ailwyn, L.

Effingham, E.

Poole, L.

Allerton, L.

Elliot of Harwood, Bs.

Radnor, E.

Amherst, E.

Essex, E.

Rankeillour, L.

Amory, V.

Exeter, M.

Reading, M.

Barrington, V.

Ferrers, E.

Reay, L.

Beauchamp, E.

Fortescue, E.

Redesdale, L.

Beaumont of Whitley, L.

Gisborough, L.

Redmayne, L.

Belstead, L.

Goschen, V. [Teller.]

Reigate, L.

Blackburn, Bp.

Gowrie, E.

Rothermere, V.

Brabazon of Tara, L.

Grimston of Westbury, L.

St. Aldwyn, E.

Bridgeman, V.

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

St. Helens, L.

Brooke of Cumnor, L.

St. Just, L.

Brooke of Ystradfellte, B.

Halsbury, E.

St. Oswald, L.

Byers, L.

Hankey, L.

Sandford, L.

Caldecote, V.

Harvey of Tasburgh L.

Sandys, L.

Carrington, L.

Henley, L.

Selkirk, E.

Chelmer, L.

Ilford, L.

Selsdon, L.

Chesham, L.

Jellicoe, E. (L. Privy Seal.)

Sempill, Ly.

Conesford, L.

Kemsley, V.

Sinclair of Cleeve, L.

Cottesloe, L.

Lansdowne, M.

Strange, L.

Cowley, E.

Lauderdale, E.

Strathcarron, L.

Crawshaw, L.

Lothian, M.

Stratheden and Campbell, L.

Cromartie, E.

McCorquodale of Newton, L.

Terrington, L.

Cullen of Ashbourne, L.

Mansfield, E.

Thorneycroft, L.

Daventry, V.

Massereene and Ferrard, V.

Tweedsmuir, L.

Davidson, V.

Mowbray and Stourton, L. [Teller.]

Tweedsmuir of Belhelvie. Bs.

Denham, L.

Vivian, L.

Digby, L.

Moyne, L.

Ward of Witley, V.

Drumalbyn, L.

Nugent of Guildford, L.

Windlesham, L.

Dudley, E.

Orr-Ewing, L.

Yarborough, E.

Dundee, E.

NOT-CONTENTS

Archibald, L.

Burntwood, L.

Diamond, L.

Balogh, L.

Champion, L.

Gaitskell, Bs.

Bernstein, L.

Collison, L.

Gardiner, L.

Blyton L

Davies of Leek, L.

Garnsworthy, L. [Teller.]

Brockway, L.

Delacourt-Smith, L.

Hilton of Upton, L.

Hoy, L.

Ritchie-Calder, L.

Taylor of Mansfield, L.

Hughes, L.

Sainsbury, L.

Wells-Pestell, L.

Milner of Leeds, L. [Teller]

Serota, Bs.

White, B.

Morris of Kenwood, L.

Shackleton, L.

Wynne-Jones, L.

Popplewell, L.

Shepherd, L.

On Question, Amendment agreed to.

Resolved in the affirmative, and Clause 10, as amended, agreed to accordingly.
Clause 11 [Ballot as to agency shop agreement]:
12.19 a.m.
LORD DRUMALBYN: With the permission of the Committee I should like to move Amendment No. 85 and at the same time to speak to Amendments Nos. 86 and 87. I do not think I need go into any detail on these Amendments. I have already referred to them and their purpose is quite simple. The present wording requires the C.I.R. not to proceed with an application only if there actually is a dispute over recognition, whereas the Amendment will enable the C.I.R not to proceed if a dispute over recognition appears likely to arise. I am sure the Committee will wish to accept this. I beg to move.
Amendment moved—
Page 9, line 18, after ("application") insert ("(a)").—(Lord Drumalbyn.)
LORD DELACOURT-SMITH: I have no desire to take longer over these matters than is necessary, but every one of them is extremely important, and this is a situation in which proceedings on an agency shop could be frustrated. We are here dealing with a situation in which there is a desire for an agency shop in the part of the union, and this introduces some further qualifications, or some further considerations, on the basis of which the Commission would not be in a position in which they could if they wished shelve the project, but, as I understand the effect of the Amendment, would be obliged to shelve the project if they reached the judgment that the conditions set out in these Amendments were met.
I do not think these commend themselves so easily to the Committee as the noble Lord seemed to think. It is, I would have thought, a fine matter of judgment whether a question, although not yet in dispute, is likely to become the subject of a dispute if an agency shop agreement is made, and would in that event, until settled, be likely to make that agreement ineffective. A very considerable amount of judgment is involved
806
in this matter, and I am bound to confess that I do not see the advantage of inserting this in the clause. It seems to me that one is importing another set of considerations which can frustrate the apparent desire of unions to proceed in the matter with which these two clauses deal. I am doubtful whether this is something we should wish to press to a Division in the circumstances, but I must tell the noble Lord that we do not find his arguments as convincing, and certainly not as self-evident, as he suggested to us.
LORD DRUMALBYN: Quite frankly, I did not put forward any arguments, because I did not think they were necessary. I am perfectly willing to put forward the arguments. I really thought this was something that would commend itself to noble Lords. However, I shall try to convince them. The provisions of this clause, as at present drafted, require the C.I.R. not to proceed on an application for an agency shop ballot if it appears to the Commission that there is a question in dispute in respect of the workers concerned related to the recognition and bargaining rights. The noble Lord says he is not inclined to accede to this Amendment, which I suggested was an improvement, where the Commission could exercise its judgment on where a recognition dispute was likely to arise.
The circumstances here would be those, perhaps, similar to what we were discussing on the Amendment of the noble Earl, Lord Halsbury, where a dispute of this kind might arise: that is to say, there might be a union within a group which was likely to feel that its interests were not sufficiently covered; or there might be another union which was not yet recognised but which was seeking recognition at the same time; there might be more than one. If there is a situation of this kind, this is just the sort of situation that the C.I.R. normally investigates. Why does the noble Lord say that in that case, and that case alone, they will not trust the C.I.R.'s judgment, when they are saying all the time in other cases that they want to trust the C.I.R.'s judgment and abide by it, and get the

807
C.I.R. to persuade the two sides to accept it.
What is going to happen in this case? The noble Lord must face this, that if the C.I.R. thinks there is such a prospect of a dispute on the right to negotiate, they will then investigate in the ordinary way under Clause 43. Is not this the right thing to do? This is what ought to be done, and if the noble Lord doubts it perhaps he would have a look at Clause 117 and see that this is so. The C.I.R. can, in any case, where the C.I.R. is involved in an investigation of some sort or another, pursue any other investigation in order to make recommendations about the matters involved. This is the right course to pursue if the C.I.R. thinks that there is a prospect of dispute. Otherwise, they may well find that in a very short time there will be a dispute about recognition.
What the noble Lords are really saying here is that they are determined in all cases to ignore the wishes of the minorities. If a minority is likely to raise a dispute in a case like this, they will ignore it. They say, "Let us have a ballot right away", even though a dispute is likely to arise. I really suggest to noble Lords that they are making very heavy weather of this. I thought this was an overwhelming case and did not need explanation. I hope I have at least put into the noble Lords' minds the idea that the C.I.R. may be trusted in a matter of this kind.
12.27 a.m.
LORD DELACOURT-SMITH: I am delighted to hear what the noble Lord has said, and the enthusiasm with which it has been greeted. If I understood him aright, he was saying that if this Amendment were inserted the C.I.R. would be able to perform its function of investigation?
LORD DRUMALBYN: Correct.
LORD DELACOURT-SMITH: I am very interested to hear him say that. I do not really understand how he reads that into the subsection as it would be if amended. There is nothing about making an investigation. The material words in Amendment No. 86 are inserted after the word "ineffective" in line 22.
LORD DRUMALBYN: If the noble Lord will read Clause 117 he will see that these words appear:
"Provision may be made by regulations made by the Secretary of State for enabling the Commission, where it appears to them to be expedient to do so in the course of examining any question which the Commission are required or authorised to examine under section 11 or under sections 35 to 38 of this Act, to undertake the examination of any question which—

(a) appears to the Commission to arise in connection with it, and

(b) could be referred to the Commission by the Industrial Court on an application under section 43 of this Act."

That is the answer to the noble Lord.
LORD DELACOURT-SMITH: I quite appreciate it is, provided that the Secretary of State makes such an order, but we happen to be dealing with the Amendment which is actually before us, and not with Clause 43 or with this later clause. There is no doubt that the effect of this insertion in Clause 11 will be to produce a situation in which the Commission shall make a report, and shall not proceed further in relation to that request. As I understand it, in the light of the further clarification, at that stage the Secretary of State could make an order. Is it correct that he could make a specific order in a specific case, or is it to be a general order which gives them a general roving commission? As I understand it, it is a specific case. Am I right in that?
LORD DRUMALBYN: I must confess that I am not absolutely clear on that. I had read it to mean that he would make regulations giving general powers to do so, but I will ascertain that and will let the noble Lord know.
LORD DELACOURT-SMITH: In those circumstances, it would be better to withdraw the Amendment until the noble Lord has clarified the point.
LORD DRUMALBYN: No.
LORD DELACOURT-SMITH: I do not think we should wish to proceed to a Division on this point, notwithstanding the fact that this has not been a very satisfactory reply and has left a good deal of doubt over what would happen in the general case. But I must emphasise that all that has been said on this Amendment must surely underline the desirability of making the general change which we

809
advocated, and which the noble Lord is now advancing as the main argument for the C.I.R.'s intervention in a situation like this; that it should investigate a case and try to find a solution which is generally acceptable to all parties.
LORD DRUMALBYN: I beg to move Amendment No. 86, which is consequential.
Amendment moved—
Page 9, line 22, after ("ineffective") insert ("or
(b) such a question, although not yet in dispute, is likely to become the subject of a dispute if an agency shop agreement is made in pursuance of the application, and would in that event be likely, until settled, to make that agreement ineffective").—(Lord Drumalbyn.)
LORD DRUMALBYN: I beg to move Amendment No. 87.
Amendment moved—
Page 9, line 23, after ("Court") insert ("and to the trade union, trade unions, joint negotiating panel or employer who made the application").—(Lord Drumalbyn.)
12.32 a.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 88.
Page 9, line 25, after ("subsection") insert ("and the requirement that in no case shall part-time workers (that is, persons who are employed for less than twenty-one hours per week) he aggregated with whole-time workers")
The noble Baroness said: This is an Amendment to which we attach considerable importance, and we look forward to the comments of the Government. It is a perfectly straightforward Amendment, which seeks to make certain that when a ballot is conducted there shall be provision to separate part-time workers from full-time workers. Our definition of a "part-time worker" is one who works for less than 21 hours per week, and there may be a number of workers who work considerably less than that. Anyone with any knowledge of industrial organisation will appreciate the point that we are trying to make. If a ballot is taken there has to be an absolute majority, and unless, as we very much hope, an Amendment which comes later accepted, it will be an absolute
810
majority of those eligible to vote. If that were to include a number of part-time workers, then one could very easily find oneself in a situation where the majority of the full-time workers, and the employer, would wish to have an agency shop, but where the part-time workers—not necessarily because of any hostility, but more likely because of indifference and apathy—would not vote or would not be very much concerned about the outcome.
I am sorry to say that a great many of the part-time workers who are likely to be apathetic are women, because in certain branches of industry, such as Courtaulds in what used to be my constituency, there is a floating population of married women. When there was a rush of work they would come in because they liked to make a bit of extra money, and when the orders slackened off it was understood that they would be laid off until the next period of pressure came. We all know how difficult it is for a trade union to organise part-time workers adequately, and to bring them fully into the organisation, with a real understanding of the issues involved—such as whether or not an agency shop would be desirable. Less frequently one has part-time workers consisting mostly of older people, of pensioners, who can earn a certain amount without affecting their pensions and who are engaged for certain sorts of work, again often seasonally or if there happens to be a spate of orders at a particular time.
I am sure noble Lords will appreciate and if someone is semi-retired, and has lived his effective industrial life, and is coming in to work just to make a little extra to supplement his pension or to have a little company, a little social life outside the home, he is not going to be passionately interested in a ballot for or against an agency shop. Therefore, we feel there is an extremely important point here. We do not love this particular concept of the agency shop, but if it is to be implemented then we are anxious that it should be done in a responsible and realistic way. I hope very much that the Government will feel able to accept this Amendment for the reasons I have given, which I am certain anyone with experience in industry will accept as valid. I beg to move.
LORD BELSTEAD: I think the apprehensions which have been voiced by (the noble Lady, Baroness White, stem from not drawing a distinction between the agency shop in which part-time workers may be among the descriptions of workers included in the agency shop and the agency shop where part-time workers are not included. In general terms, the agency shop provisions draw no distinction between full-time and part-time workers as the Bill is drafted; both have equal rights to participate in agency ballots, and their votes will be of equal value. For under an agency shop agreement the obligation either to join the agency union or to pay an appropriate contribution in lieu of membership is the same whether you are a full-time or a part-time worker. Indeed, the obligation may be the more onerous on the part-time worker, because his or her earnings will generally be the lower, and the part-time worker therefore has the right, I think, to expect to be able to voice his or her opinion on a matter which concerns him or her just as much as the full-time colleague.
But in general the question whether part-time workers should be included in an agency shop agreement, and thus of course in any ballot to challenge it, will be one for the parties to decide. If the parties to an agreement decide to exclude part-time workers, such workers could not apply for a ballot to rescind the agreement or to vote in any such ballot. Where a union makes a unilateral application for an agency shop with part-time workers excluded, I would suggest to the Committee that it would seem unlikely that the C.I.R. would extend the application to cover the part-time workers against the wishes of the unilateral applicant. Of course, it would be open to the Commission to take the wider view. But where part-time workers are to be included in an agency shop then it is surely entirely right that they should have an equal right to vote on the matter—and this is the nub of the argument against the Amendment. If this did not happen you might get a small minority of full-time workers who might establish an agency shop agreement against the wishes of the overwhelming majority of other workers who were covered by it, and I would not have thought that this was a process which responsible trade
812
unionism—or democratic processes—would wish to see occur.
LORD BROWN: I hope the Government will accept this Amendment. Really, what the Minister has said shows a woeful lack of appreciation of the real situation in industry. Part-time workers are sometimes very serious employees who have a long-term eye on the future of their own employment and of the company that employs them, but that is not generally true. Generally they range from people who are picking up some pin-money to people who have taken jobs for a rather short period of employment. They are not identified with the interests of their full-time colleagues in the industry, they are, with honourable exceptions, people who are emotionally in a very different category of worker from the rest of those employed in the company. It is grossly unfair that these people, whose investment in their careers in a company or industry, is not nearly so great should be given the same rights of voting as people who are very much more seriously concerned. I listened to the noble Lord about the possible ways of accepting them, the trades unions keeping them out, and so on. However, I think nothing that has been said is a good argument against accepting this Amendment. It is a simple Amendment, and I suggest that it is one of a kind that the Government should be able to accept readily.
LORD BELSTEAD: Does not the noble Lord feel that in the circumstances he outlined it would be very unlikely that the proposal for the agency agreement would include such workers? But if it were to do so, then in my view they should have equal rights.
LORD BROWN: It is somewhat involved if the unions have to consider these matters in detail, and I do not see why they should not be given an arrangement in which every two part-time workers would have the same vote as one full-time worker. That is the sort of rational basis there should be, as they have only half the involvement in the firm. The noble Lord drew attention to the fact that there might be some firms where there was a minority of full-time workers and a majority of part-time workers. That would be a very exceptional situation. It could conceivably occur, but if one is going to legislate for

813
these extreme exceptions then it is not really reasoned legislation.
I think it is a sound Amendment. It will reassure people that they are not going to have a ballot swung by the odd five per cent. of part-time workers. Imagine what would happen if a ballot were taken and the part-time workers swung the vote against or for an agency agreement. What would the rest of the workers feel? What would members of this Committee feel in that situation, where people who were not fully identified with their career swung the ballot one way or the other against the wishes of those who were far more identified? I suggest the Government should consider this matter very seriously indeed.
LORD BELSTEAD: It depends entirely what the workers, whether they be part-time or full-time, are paying. If they are paying the same amount in union contributions I know perfectly well what many noble Lords on both sides of the Committee would think: they would think justice had been done if it had been decided by the parties to that agreement. May I thank my noble friend, Viscount Amory, for making crystal clear to the Committee the point imperfectly made by me, that the C.I.R. is written into the clause and into the Bill so that it will be possible to make use of its expertise. That is precisely what the C.I.R. is there for, to decide whether it is right that part-time workers should be included in an agency shop agreement; and if it is decided either by the parties or by the C.I.R. that such part-time workers should be part of the agency shop agreements, then I return to the Government's conclusion that that is the moment when it is self-evidently right and just that such people should be allowed to have a voice in the ballot. That is the whole point of the argument against the Amendment.
LORD BROWN: We should decide this matter here, and the point I wish to take up with the noble Lord is that he is attaching the vote to the fact that they pay the same amount to the trade union. That has nothing to do with it. It is a very slim and shallow argument. What really should determine whether they should have the same vote is the workers' degree of identification with the occupation of the company. That is what matters. The noble Lord knows that full
814
well, if he has any experience of the matter. The question of attaching it to the fact of giving them a full vote because they pay the same dues (which the noble Lord knows is a trifling matter in terms of cash), is a nonsensical argument.
LORD PLATT: I am afraid that I was absent from the Committee when the debate on this Amendment started and it may be that the point I am going to raise is either irrelevant or has already been covered. But knowing that against my personal views the medical profession is involved in agency shop agreements, I should like to point out that some of the most eminent members of my profession do about four sessions a week for the National Health Service in, perhaps, one of the London teaching hospitals and that private practice takes up the remainder of their lime. I may say that these eminent men carry out their duties for the Health Service in a splendid way and often do far more work than is covered by four sessions. Nevertheless they do four sessions, each of notionally 3½hours, which is considerably less than 21 hours. I do not I now whether these people are covered by this particular clause; but if they are, they are very important people.
BARONESS WHITE: I would not wish to dispute the peculiar position of the consultants who do only four sessions a week; but to take the normal industrial position, I think that the noble Lord seemed to give a travesty of the normal position. He was talking about the small minority of full-time and the vast majority of part-time workers. That is what he said. They do not have an equal status. This is the reality of the situation: they are not equal. They do not necessarily, if they are part-time workers working under 21 hours a week, pay a full union subscription.
We feel that there is a very genuine distinction between the full-and the part-time workers. The noble Lord and the noble Viscount, Lord Amory suggested, "Leave them out. They will not be included in the application." But even that is not necessarily entirely satisfactory, for some of them might be trade union members. We feel that there is a genuine difference in the normal industrial situation between those who have a real stake in the company, a real involvement in the enterprise, and those who do not.

815
We feel that it is unsatisfactory, having great respect for them, that the C.I.R. should be left in each individual case to go into this business of part-time and full-time workers when, as my noble friend Lord Brown said with great authority, this is something that we ought to sort out for them. There is a limit to what one ought to put on to the C.I.R. in having to investigate every application for an agency shop—and they are given no guidance from us as to whether or
12.57 a.m.
LORD DEL ACOURT-SMITH: Amendment No. 88D is consequential upon an Amendment which the Government have already accepted. I beg to move.
Amendment moved—
Page 9, line 38, at end insert ("or rights corresponding to negotiating rights").—(Lord Delacourt-Smith.)
not they should equate full and part-time workers. The experience of most of us with industrial experience is that part-time and the full-time workers are not to be equated. This is the burden of the Amendment and we still hope that the Government will accept it.
12.49 a.m.
On Question, Whether the said Amendment (No. 88) shall be agreed to?
Their Lordships divided: Contents, 22; Not-Contents, 84.

CONTENTS

Archibald, L.

Diamond, L.

Ritchie-Calder, L.

Bernstein, L.

Gaitskell, Bs.

Sainsbury, L.

Brockway, L.

Gardiner, L.

Serota, Bs.

Brown, L.

Garnsworthy, L. [Teller.]

Shackleton, L.

Champion, L.

Hoy, L.

Shepherd, L.

Collison, L.

Hughes, L.

Wells-Pestell, L.

Davies of Leek L.

Milner of Leeds, L. [Teller.]

White, Bs.

Delacourt-Smith, L.

NOT-CONTENTS

Aberdare, L.

Effingham, E.

Platt, L.

Ailwyn, L.

Elliot of Harwood, Bs.

Poole, L.

Allerton, L.

Essex, E.

Radnor, E.

Amherst, E.

Exeter, M.

Rankeillour, L.

Amory, V.

Ferrers, E. [Teller.]

Reading, M.

Beauchamp, E.

Gisborough, L.

Redesdale, L.

Beaumont of Whitley, L.

Goschen, V. [Teller.]

Redmayne, L.

Belstead, L.

Gowrie, E.

St. Aldwyn, E.

Brabazon of Tara, L.

Grimston of Westbury, L.

St. Helens, L.

Bridgeman, V.

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

St. Just, L.

Brooke of Cumnor, L.

St. Oswald, L.

Brooke of Ystradefllte, Bs.

Halsbury, E.

Sandford, L.

Byers, L.

Harvey of Tasburgh, L.

Sandys, L.

Caledcote, V.

Henley, L.

Selkirk, E.

Chelmer, L.

Ilford, L.

Selsdon, L.

Chesham L.

Jellicoe, E. (L. Privy Seal.)

Sempill, Ly.

Conesford, L.

Kemsley, V.

Sinclair of Cleeve, L.

Cottesloe, L.

Lansdowne, M.

Strange, L.

Cowley, E.

Lauderdale, E.

Strathcarron, L.

Cromartie, E.

Lothian, M.

Stratheden and Campbell, L.

Cullen of Ashbourne, L.

McCorquodale of Newton, L.

Terrington, L.

Daventry, V.

Mansfield, E.

Thorneycroft, L.

Davidson, V.

Massereene and Ferrard, V.

Tweedsmuir, L.

Denham, L.

Mowbray and Stourton, L.

Tweedsmuir of Belhelvie, Bs.

Digby, L.

Moyne, L.

Vivian, L.

Drumalbyn, L.

Nugent of Guildford, L.

Ward of Witley, V.

Dudley, E.

Orr-Ewing, L.

Windlesham, L.

Dundee, E.

Pender, L.

Yarborough, E.

Eccles, V.

On Question, Amendment agreed to.

LORD DELACOURT-SMITH LORD DELACOURT-SMITH: Moved Amendment No. 89.
Page 9, line 43, leave out from ("determine") in line 43 to ("what") in line 2 on page 10.
The noble Lord said: I hope this will not be a contentious Amendment, but I had hoped that Amendment No. 88 would not be. The case for this Amendment can be put very simply. It is intended to give the Commission a free hand in respect of a matter in which we think it quite appropriate to give a free

817
hand, that of securing a properly conducted ballot. The wording included in the Bill as it stands appears to us to be a little more diffuse than is necessary, and we should appreciate some explanation of it.
LORD DRUMALBYN: Such are the mysteries of drafting, I am advised, that the words which the noble Lord proposes to leave out are those which give the Commission a power which it would not otherwise have to do certain things. The point is, that unless the Commission is given powers to have the ballot taken under its supervision by some other body it appears that it would have to conduct the ballot itself. It seems strange, but apparently that is so, and on the whole I think it would be better to leave the words as they are.
LORD DELACOURT-SMITH: That is such an extremely good and convincing explanation, compared with so many we have had, that I should like to express my appreciation and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
1.0 a.m.
LORD THORNEYCROFT LORD THORNEYCROFT moved Amendment No. 90:
Page 10, line 4, at end insert ("and for these purposes may invite the employer to make such arrangement's as to premises or otherwise as may appear convenient.")
The noble Lord said: I think it will be common ground on both sides of the House that if there is a ballot all necessary facilities should be made available, so that it may be conducted with reasonably good order. This merely gives the Commission power to invite the employer to make such arrangements, as to premises or any other matters, as may appear convenient for the purpose.
BARONESS WHITE: We are most grateful to the noble Lord, Lord Thorneycroft, for making this suggestion, but I cannot pretend that we find the Amendment entirely satisfactory. I would assume that it does not require statutory authority for the Commission merely to invite the employer to make arrangements as to premises or any other matter. They could do that, surely, within their own authority, without our having to give them statutory authority for it. If, on the other hand, what the noble Lord
818
really has in mind is that the Commission should be in a position of somewhat greater authority, and should be able, where they thought it proper, to order the employer, or to have some real authority in the matter, then that would, I think, be a suitable matter for an Amendment to the Bill. If the noble Lord really has that in mind, so that this Amendment would have some genuine practical effect, then we would be very much disposed to go along with him.
But I would ask him to clarify this a little. There might well be circumstances in which the Commission, having looked at the possibility of making proper arrangements for a ballot, have come to the conclusion that this is something which should be done by the employer, and they might find that the employer was a bit reluctant. Are we to assume that they then just shrug their shoulders and say, "We cannot conduct this ballot in a sensible way, we shall have to use the church hall or something like that"? I wonder if we could know what is in the noble Lord's mind?
LORD THORNEYCROFT: I rather share the noble Baroness's view, and would prefer to put a clear obligation on the employer. The trouble with legislation is that if you put in obligations of that sort you have to make elaborate precautions for the one employer out of 500 who might refuse, and this becomes rather a ponderous operation. In the circumstances it is probably better to make it absolutely plain that the Commission can invite, and 999 employers out of 1,000 will undoubtedly fulfil the invitation.. But unless it were made plain I think might well be a little doubtful whether it really was within the competence of the Commission to invite employers, or anybody else, to undertake things which might involve them in some difficulty.
LORD DAVIES OF LEEK: I think it is quite clear. I take it that the noble Lord is quite as sincere about this as any of us on this side of the Committee. He wants the maximum opportunity and convenience for that ballot. He knows as well as I do that there are certain snags about the arithmetic of this, and one would like to see as many as possible having the maximum opportunity of voting. I suppose at least 90 per cent.

819
of the employers who would be willing to co-operate would take it as the wish of Parliament, and would help to make a success of whatever this Bill in the ultimate produces. I sincerely hope the Government will give us an explanation on this, and I think it is worth while an explanation being made.
LORD DRUMALBYN: The noble Lady has expressed the view that she would welcome the provision if it said "requires" rather than "invite". The way in which the Opposition changes sides in these things never fails to puzzle me. At one time everything must be done by voluntary action, and then suddenly they require the employer to do something. My noble friend is perfectly right in the reason he has given for suggesting that this should be to "invite" and not "require", because it would involve a lot of other provisions defining what would happen if the employer refused to comply with a requirement. I think this would be a valuable addition to the Bill, because it would give an opportunity to the workers to go to the usual place to hold the ballot, in circumstances where it is clear that this is done at the instigation of the Commission and not as a sort of job on the part of the employer. I think there is value in this, and the Government are prepared to accept my noble friend's Amendment.
LORD HOY: I was not going to say anything on this Amendment but I am intrigued by the reply just made by the noble Lord. I have listened to many arguments from him in committees in another place on whether "will" meant "shall", or "shall" meant "will". I can think of many occasions when he held up a committee for long periods to find out exactly what a specific word meant. On those occasions his argument always depended on which side of the committee he was: on one side, "will" meant "shall", and on the other, "shall" meant "will". I was surprised to find him doing exactly the same thing in your Lordships' House. There is a great distinction between the two words, and I should have thought that from the Government's point of view he would have wanted to make it clear what "shall" meant before putting it into an Act of Parliament.
LORD DRUMALBYN: This is perfectly clear. If one says "shall" to an employer, it means that on every occasion the ballot shall be held in the employer's premises. I am sure this is not my noble friend's intention. He merely wants to give the opportunity to the employer, if the C.I.R. think it appropriate. "May" is definitely correct, whatever I may have said in the past.
BARONESS WHITE: Can I make certain that we are not inadvertently narrowing the operations of the Commission by this Amendment? If we look at subsection (3), it says:
"The Commission shall also determine … in either case what arrangements would best secure that the ballot will be properly conducted, …."
If we put this Amendment in, would that not be taking away some of the powers which the Commission already have? If they can determine what arrangements would best secure that the ballot will be properly conducted, does not that give them a greater authority than the Amendment, which just says that they may invite an employer to make such arrangements. It seems to me that the first part has greater authority than the proposed Amendment.
LORD BERNSTEIN: I would like to answer the charge of inconsistency, at least so far as I am concerned. There are legal clauses for employees, but exhortations for employers.
LORD SHACKLETON: Is the noble Lord not going to answer my noble friend? This really is a point. We are sympathetic to what the noble Lord, Lord Thorneycroft, is proposing, but it sometimes happens that when you have a desirable suggestion and put it in you restrict the powers already there. Subsection (4) says that
"The Commission shall thereupon arrange for the ballot to be taken …".
Yet earlier all they can do is to invite somebody to do something. I wonder whether the noble Lord has considered this. It may well be that if it does inadvertently restrict it might be as well to have another look at it on Report.
LORD DRUMALBYN: My noble and learned friend the Lord Chancellor whispers to me that this clause does not

821
do that at all. I have also had the advantage of asking the draftsman whether it has such effect, and he is quite satisfied with the drafting. I hope therefore that the Committee will accept the Amendment. I am certain that if this in any way restricted the powers of the Commission I should have been told. If it is of any assistance to the noble Lord, of course I will put forward the point made by he and the noble Baroness to make quite certain. On Question, Amendment agreed to.
1.11 a.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 90A:
Page 10, line 3, at end insert—
("( ) The arrangements to be determined by the Commission as provided in the previous subsection shall include arrangements which will ensure that it is adequately brought to the notice of workers who are to take part in the ballot that a ballot is to take place not less than one month before the date fixed in accordance with the arrangements for the taking place of the ballot, and the ballot shall not take place before at least one month has expired since notice is so given in accordance with such arrangements.")
The noble Baroness said: The object of this Amendment, as I think is clear from its wording, is to make quite certain that in this important matter of the ballot there should be no possibility of a snap vote and a snap decision and the ballot being taken in so short a period that it will not be possible for the whole matter to be fully discussed with all the groups of workers who may be involved, and for all the pros and cons to be put before them.
We have already discovered in earlier discussions, for example on the professional workers, that some of these matters are by no means simple. Again, in our discussion on part-time workers we found that there are various groups who may have different interests in these matters. It may need quite a considerable period of discussion and explanation on the part of those who are advocating that there should be an agency shop agreement. Therefore we think it is sensible to put some sort of provision in the Bill to make quite sure that a reasonable period is allowed. We think that what we are suggesting, at least one month, is a reasonable period. It will not delay matters unduly, but it will allow the trade unions and others to have a proper time
822
to make their arrangements, and to make absolutely certain that everybody who is to take part in the ballot is fully aware of the issues involved, the pros and cons, the obligations which would ensue if the vote was in the affirmative and so on. After all, the legislation concerned with the agency shop agreement, as we found in the many hours that we have spent in discussing it, is not entirely straightforward. Therefore, we think it not unreasonable to suggest that the proposal made in this Amendment should be accepted. I beg to move.
LORD DRUMALBYN: The last thing I want to do is to appear to be obstructive about an Amendment which so obviously has the most laudable intention. I think we should all want to make sure that every worker eligible to vote in an agency shop matter should have at any rate notice of the ballot and adequate time to consider the issues involved. I hope that I can persuade noble Lords to agree that in practice it would place considerable restriction upon the C.I.R., and remove a good deal of useful flexibility. it would not guarantee that the purpose would be achieved in every case. It has to be borne in mind that the ballots will be conducted in constituencies varying from perhaps a few men in a work place to thousands of workers scattered in work places throughout the country. The C.I.R. may require a free hand to deal with each situation as they think fit, otherwise there will he inevitable delays in some cases and needless expense will be incurred.
I hope that the noble Baroness will be prepared to leave the C.I.R. to exercise their discretion in this matter. I am sure that we can agree that they will do so responsibly. The Bill requires the C.I.R. to ensure that the ballot is properly conducted, and the provisions regarding arrangements for the conduct of ballots are wide enough and flexible enough to permit the Commission to make the arrangements which are in the best interests of all concerned.
In most cases there can be little doubt that all will be well. The matter will be quite straightforward; for example, in single establishments all workers will be acquainted with the issues involved, and will have a reasonable opportunity to vote. In such cases compulsory notice of

823
a month will only delay matters. In the less straightforward cases the requirement imposed by this Amendment will place an almost impossible burden on the C.I.R. One has only to think of the case of the seamen, who may be scattered all over the world. In the case of actors or musicians, how would the C.I.R. be able to comply with the proposed requirement?
BARONESS WHITE: I am sure that the noble Lord has appreciated that we are not proposing a fixed period of one month. This is a safeguarding clause; it is not meant to be a rigid clause. It says that least one month shall have expired since notice is given that the ballot shall take place. We are putting forward what we believe is a basic minimum. I do not think in any circumstances that one month is an undue delay. If it is not sufficient then greater time can be taken.
LORD BERNSTEIN: Are you objecting to the whole clause, or the period of time? Are you prepared to bargain on the period of time? Would you make it three weeks, or two and a half weeks.
LORD DRUMALBYN: I am afraid it is difficult to conduct negotiations across the Floor of the Committee in such a way. The point is quite clear, that a minimum period is set and I thought that where a minimum period of this kind was set it could also be treated as the maximum in many cases; it would be a standard period. The point I was making was that the minimum period is quite a long time when you have an issue in one place. For a General Election you require three weeks or so. If the issue is concentrated in one place are you going to require one month's notice? I doubt whether this is really worth pressing. I hope that it can be left to the discretion of the C.I.R. to see that the ballot is properly conducted.
BARONESS WHITE: At this early hour of the morning I do not think we will delay your Lordships by having a Division on this Amendment. I cannot pretend that we are entirely happy with the answer given by the noble Lord, but we will not press the Amendment at this point.
Amendment, by leave, withdrawn.
1.20 a.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 91:
Page 10, line 7, after ("and") insert ("having ensured that all workers eligible to take part in the ballot have had adequate opportunity to do so").
The noble Baroness said: Once again this is really intended to be a safeguarding Amendment. It may seem to be unnecessary or otiose, but we are anxious that it shall at least be drawn to the attention of the Commission that there are circumstances in which it may not be easy to ensure that all workers eligible to take part in a ballot have had an opportunity to do so. This can arise for various reasons. For example, in certain occupations one has a very elaborate shift system with, sometimes, quite a long break at certain points on a complicated rota system. We must be quite sure that the ballot is not held, for example, on a particular day on which it would not normally be possible for quite a large proportion of workers to vote. We want to be quite sure that situations of that kind are taken fully into account.
Then of course there are the other situations in which workers are not static, they are not in one plant or establishment, but may be moving around the country. Again, one has to be quite sure about this. In Parliamentary Elections, for example, we have postal votes for people whose work takes them away from their main base. I do not know whether it would be desirable conceivably in certain circumstances to have even a postal ballot for particular people provided for in this Bill. This is something that might at least be considered, however, because there are some people who go away for quite considerable periods and who would not be able to take part if they had to place their ballot in a box in the works.
So we believe there are circumstances which are not straightforward, and we are putting down this Amendment just to draw your Lordships' attention in the first place, and, through your Lordships, the attention of the Commission and others concerned, to those circumstances, to make quite certain that the intention of Parliament is clear that, no matter what the circumstances of the employment of the particular worker, if he or she is eligible to vote then arrangements must be made so that he or she can vote,

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even if, as I say, it may in certain circumstances possibly involve a postal vote.
LORD BELSTEAD: The warnings of the noble Baroness, Lady White, on the perils of the shift system and inconvenient dates, possibly, and mobile workers are certainly very understandable in connection with the holding of ballots in this respect. But the noble Baroness has asked that these factors and others should be fully taken into account. I believe that under the Bill they are. The C.I.R. is required to ensure, first, that every ballot, whether conducted by the Commission itself or by another body under the Commission's supervision, should be properly conducted, and secondly, that the voting should be kept secret. Proper conduct of a ballot would include providing adequate opportunity for all workers eligible to vote to do so; and I would echo my noble friend Lord Drumalbyn on the previous Amendment in holding that, surely the C.I.R., with its expertise, will be expected to act responsibly in carrying out its obligations.
However, I wonder whether I might ask the noble Baroness in turn, as it were, some questions. How could the C.I.R. ensure (which is the wording of the Amendment) that all workers eligible to vote had adequate opportunity to do so? Would it be required to check that no worker was ill or confined to bed at the time of the ballot, or that every worker concerned had transport reasonably available to him to attend the balloting centre? The Amendment would introduce a contentious element where I am suggesting there need be none. Such an element would provide an opportunity, certainly for the dissident worker who is displeased with the result of the ballot, to pursue the Commission through the court on the matter of ensuring reasonable opportunity; and such actions would hardly be conducive to stable industrial relations.
There are certainly two further objections that I can see. The first is that the Amendment would place a distinct additional duty upon the Commission: and I recall that the last time I faced the noble Baroness, Lady White, across this table, about a quarter of an hour ago, she was, quite rightly, very keen that no extra burden should be placed upon the Commission. So I know she will agree
826
with that objection. The Commission would have to take active steps to satisfy itself, and while it was so doing some period of time, possibly several weeks might elapse. The second point is that the requirement would add an additional matter on which the report of the C.I.R. might be challenged, and to do so it would suffice, on the wording of the Amendment, to show that only one individual worker had not been offered adequate opportunity to take part in the ballot. Lastly, may I draw attention to the word "adequate", which is not defined. At this hour in the early morning I can define "inadequate", but "adequate" is notoriously difficult to define. For these reasons, although I know that this Amendment is conceived in a helpful manner to try to improve the Bill, I must say that it is impracticable.
1.27 a.m.
LORD SHACKLETON: What the noble Lord has failed to do is to convince us that what we seek to achieve in this Amendment is already provided for in the Bill. It is no use reading out to us that the arrangements must secure that the ballot will be properly conducted and that it will be kept secret. That has no bearing on the purpose of this Amendment. I do not find the noble Lord's answer goes far enough to meet us in this matter. After all, there is provision. Will the Commission make provision for postal votes for people who are sick or are on holiday? Nowhere in this clause is the type of obligation which we seek, whether in this form of words or some other form, laid upon the Commission. All that is laid upon them—and I put this point quite seriously to the noble Lord, Lord Belstead—is that they must see that the ballot is properly conducted. It could be argued that this subsumes what we seek to put into the Bill, but I do not think it does.
If the wording of the Amendment is in some way inadequate, and it does impose some impossible legal obligation (although I am not convinced by the noble Lord, Lord Belstead) there may be some other form of words. We are seeking to make it absolutely explicit that every worker should, within human capability, be given an opportunity to vote. This is not a requirement at the

827
moment that I can find in the Bill, unless it comes in a later clause, and I should have hoped that the Government would consider this further.
This is not a point on which I think there is necessarily disagreement as to what we want. I am assuming that the Government want every worker in fact to have the right to vote, and we think that this ought to be included in the Bill. Could the Government not be a little more forthcoming and consider this, and not just dismiss it by quoting paragraphs which do not meet the particular point?
LORD BROWN: May I add a rather horrifying example to demonstrate the validity of a little thought about this matter? Under the next clause this is what could happen. There are 100 workers in a firm; a ballot comes up, and 50 vote in favour of an agency shop. None vote against it, and yet the agency shop will not come into existence. Supposing one man had been sent, we will say, to Rumania to, assemble some machines and no arrangement had been made for him to vote, that would have been the cause of losing the ballot. Once the principle of the majority of those eligible to vote is introduced it highlights the importance of voting in an extraordinary manner. Have the Government really thought out just how important this change in principle underlying the ballot, which is new to me, makes the arrangements for the ballot?
LORD BERNSTEIN: The question put to the noble Baroness, Lady White, by the noble Lord really causes me to raise my eyebrows, even at this time of the morning. The Bill has been loaded with the most complicated legal clauses. Why suggest that there should not be a legal clause to protect the worker against the employer? When the Second Reading of the Bill was introduced, the Companies Act was brought into the discussion. I could never understand what relation it had to this Bill. The Companies Act is to protect shareholders. Why cannot the Government include a clause like this to protect the workers? It is a simple clause; it is not complicated. What can be the reason? You talk of the Commission being overworked, and you have given them more work than we suggest is necessary.
1.30 a.m.
THE LORD CHANCELLOR: May I say a word in answer to the last speech, and to the noble Lord the Leader of the Opposition? To begin with, this Amendment does not necessarily protect those whom the noble Lord refers to as workers. If the result of the ballot were favourable to the agency shop, which is the most favourable version to the workers, it could be invalidated, if this Amendment were carried, by a purely technical objection taken by an unsuccessful minority. If anybody wants to create unnecessary legal points which can dispute the validity of the vote, this, at any rate in my genuine opinion, is the way to do it. Of course the Commission ought to take every step open to it to see that every person qualified to vote has the opportunity to do so; and clearly that must include the capacity in suitable cases to provide for postal votes; and it is within their power to do so under subsection (3). But if you add the words on the Marshalled List,
"having ensured that all workers eligible to take part in the ballot have had adequate opportunity to do so",
you give every dissentient minority, even if it is only one person, the opportunity to challenge the validity of what has taken place. This is the way to set about doing the very thing the Opposition are constantly complaining the Bill does.
LORD BEAUMONT OF WHITLEY: I do not think the Government are taking these Amendments seriously enough. It may be because they are going to give way on Amendment No. 93, but if that is so perhaps they will let us know straight away. What demands some kind of amendment here is this extraordinary new method of voting, as the noble Lord, Lord Brown, said. If we are to have this extraordinary new method of voting, there is every need that a subsection should be written into the Bill to see that everyone has the maximum chance to vote. I agree that it is stated in general terms in the Bill, but I think the Opposition are absolutely right to say that there should be more specific safeguards written in, if only for the psychological benefit. I accept, as the noble and learned Lord and Lord Belstead said, that possibly these Amendments do not do it, and I am

829
sure that the Opposition Front Bench, who are, at any rate at this time of night, extremely reasonable, would take these Amendments away if the Government would say that they accept the force of the argument and will consider whether they can come back at a later stage with some more explicit safeguards than exist at the moment.
BARONESS WHITE: I am very glad indeed that the noble Lord, Lord Beaumont, has plainly seen the true purpose of this Amendment. I think I am correct in saying that the undertaking by the Government that postal voting will be instituted where necessary has been mentioned tonight for the first time.
THE LORD CHANCELLOR: What I said was that it was necessary for the C.I.R. to see that every qualified voter had a chance to vote, and this would include the power, which I was sure they would exercise in a suitable case, to make arrangements for postal votes. Of course not in every case would one expect it to be necessary, but they would have full authority to do so.
BARONESS WHITE: I think to have had the undertaking on behalf of the Government that this is included within the powers of the Commission is in itself valuable, and justifies our having put down this Amendment. I do not think this undertaking has been given anywhere else, and it is an important one. The noble Lord, Lord Beaumont of Whitley, was entirely right in saying that it would be somewhat less important if Amendment No. 93 is accented, as we very much hope it will be. We have had no assurances on that, as yet. Even if that Amendment were accepted it would still be most desirable that, in the circumstances where it became necessary, the Commission should be able to take some rather extraordinary measures such as postal votes, and postal votes of people who were sick, and away from work and so on.
I do not think at this hour that we wish to pursue this further—we should like to, but I do not think we shall. In asking leave to withdraw this particular Amendment, I do so on the clear understanding that we shall be looking at it again and that we reserve our right to put down any further Amendment on Report if, on further reflection, we think
830
that more specific safeguards are needed. I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 11, as amended, shall stand part of the Bill?
1.38 a.m.
LORD DELACOURT-SM1TH: I am afraid that here again we have a not very satisfactory clause before us. We can hardly say that we feel that the Government have met us on a number of the points we have raised. The reaction of the Government on Amendment No. 91 is in the minds of all of us. In this latter part of the discussion we have been concerned to try to ensure that, if a ballot is to be taken under the auspices of the Commission, it should be as satisfactory and as comprehensive a ballot as it can possibly be. In the earlier part of the clause we were looking at matters in a rather different way. While it is important that, if ballots are to be conducted, they should be satisfactorily conducted, and there should be no feeling afterwards that anybody's opportunity to vote had been neglected, in the earlier part of the clause we were concerned with the Amendments which again underline the inadequacy of this approach, which makes the whole thing turn so largely upon a ballot.
We had the long discussion earlier about the position of professional people, which brought out the way in which minorities can feel themselves overlooked if a ballot of the generality of the workers takes place. We had then the discussion on Amendment No. 88, which drew attention to the fact that there are part-time workers alongside full-time workers, and there was inevitably controversy about the degree of influence which part-time workers and full-time workers are respectively entitled to exercise when a decision is being made.
These are all examples of the inadequacy of the distinctly rigid approach which is enshrined in these machinery clauses. They underline our belief that the spirit in which this job should be done, if it is to be done at all, should be a different one, and that the effort should be to put the emphasis not upon the Industrial Court and on stated procedures, which tend to become inflexible, but upon the Commission on Industrial

831
Relations, with the maximum flexibility in its operations, and with the clear objective of trying to find, by examination and by contact with the parties, arrangements which are going to be satisfactory to all, or which are going to be as reasonably satisfactory to all as can be secured in a very imperfect world.
So often there are cases in trade union affairs where it may look democratic to take a ballot, but where it is not the wisest course, or the course which is going to produce the maximum agreement and satisfaction in the long run, to pose an issue in such a simple way. As the C.I.R. suggested, in the quotation from their first general Report which I read earlier, there is the effect in some circumstances of polarising differences of opinion rather than securing a general consensus of agreement.
In the circumstances, we are somewhat tempted to divide the Committee on this clause, but having considered the matter we feel that at this time of night it would not be appropriate to do so. But the fact that we are not dividing will not, I am sure, be misinterpreted. I do not think that noble Lords opposite will believe that this indicates a sudden change in our convictions. It merely indicates that we think it would be more fruitful to return to some of these points after we have considered—and, we hope, after the Government have considered—what has been said, so that we may select some points for further consideration at a later stage.
Clause 11, as amended, agreed to.
Clause 12 [Effect of ballot under s. 11]:
1.42 a.m.
LORD DELACOURT-SMITH LORD DELACOURT-SMITH moved Amendment No. 92:
Page 10, line 12, leave out from ("beginning") to ("is") in line 13 and insert ("if the result of a ballot as reported by the Commission").
The noble Lord said: Perhaps I should correct a slight misprint here. The Amendment should read, to
"leave out from the beginning of the line to `'is' in line 13"
and so on. In moving this Amendment, I am returning to the theme which I was developing on the Question, whether Clause 11 shall stand part of the Bill?
We are here deleting the reference to the Industrial Court and inserting a reference to the Commission. As I said, noble Lords opposite will not believe that we have had a change of heart because of our decision not to vote on Clause 11, and I am not sanguine enough to believe that at this stage the Government are going to have a change of heart and accept the proposition which is so clearly implicit in this Amendment. Nevertheless, it is appropriate to put the Amendment before the Committee and I accordingly beg to move.
LORD DRUMALBYN: Quite honestly, I had assumed that the noble Lord would not move this Amendment as it appeared to go with the other Amendments. It is very difficult to see that it does very much standing by itself. It merely states what is to happen, and subsection (1) would read:
"If the result of a ballot as reported by the Commission to the Industrial Court under section 11 of this Act"
and so on. The Bill at present states who the ballot is to be reported to, and the noble Lord wants to insert who it is reported by. I do not see how this can make any difference to the sense. I entirely take his point that he disagrees with the way this is being done; but I do not think he intends us to accept this Amendment, if only because it would make no real difference. We should prefer to have the Bill as it is.
LORD DELACOURT-SMITH: I do not think this is an issue which we should want to press at this time of night. Accordingly I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD SHEPHERD: Before my noble friend Lord Beswick left because he was unwell he led me to understand that there had been some agreement that the Committee stage would be adjourned either when we reached Clause 14 or at 2 a.m. I see we are now fifteen minutes to the hour, and I think it would be generally agreed that the next Amendment, which is down in the name of the noble Lord, Lord Byers, is one of crucial importance to the Bill. I therefore wonder whether the Government Front Bench would agree that this might be an appropriate moment to adjourn, so that we could

833
return fresh tomorrow to take this very important Amendment.
THE LORD PRIVY SEAL (EARL ELLICOE): I would not wish to appear unreasonable to the noble Lord, Lord Shepherd, but in so far as there was any understanding I think the understanding was that we should attempt to get to, and in fact get through, Clause 14 of this Bill, which I do not think was an unreasonable understanding at that time. I do not wish to come between the Committee and the noble Lord moving the next Amendment, by my own feeling is that there is no reason at all why we should not go on. We seem to be making reasonable progress, and we all seem to be reasonably fresh.
LORD BEAUMONT OF WHITLEY LORD BEAUMONT OF WHITLEY moved Amendment No. 93:
Page 10, line 14, leave out ("eligible to vote") and insert ("voting").
The noble Lord said: I beg to move the Amendment standing in the names of my noble friends and myself, and also in the name of the noble Lord, Lord Delacourt-Smith. This Amendment deals with the method of voting—this peculiar arrangement whereby a majority of those eligible to vote is needed for the putting up of an agency shop. Perhaps it would be to the convenience of the Committee if, with this Amendment, No. 93, we considered Amendments Nos. 96, 101 and 102; and also, with the permission of the Committee, I am going to touch on Amendments Nos. 101A and 102A starred. I do not propose to detain the Committee long at this time of the morning with the arguments against this particular form of voting. Suffice it to say, I think, that it is, so far as I know, unprecedented in British public life. The basis that we have always worked on in the past is that, although we want to encourage as many people as possible to vote, the abstainers should beware—caveat abstainer is probably the maxim by which we have proceeded—and to suddenly change it at this particular moment seems peculiar. It also seems to be a way of loading the election, of loading the ballot, against the agency shop.
We have therefore put down this series of Amendments; but there is something more extraordinary about this point
834
which you only come to if you really investigate the rather cunning draftsmanship; namely, that it is really doubly loaded against the agency shop. You have to have a majority of those eligible to vote in order to get an agency shop, and you have to have a majority of those eligible to vote in order to keep an agency shop—not in order to get rid of it, but in order to keep it. This is really having the best of both worlds, if that is the way the Government feel; or, as I think most of us would probably feel, the worst of both worlds. The whole thing is doubly loaded against the agency shop; and here my noble friends and myself are, as once or twice before in this Committee stage, wishing to try to find the point of logic on which the Government stand. We have therefore tabled two sets of Amendments.
We sincerely hope the Government will accept this first set of Amendments, which will merely amend the method of voting to the normal method of voting in any other election or ballot in which most of us have ever taken part—that of the simple majority. But if for some reason the Government are wedded to the principle of the majority of those eligible to vote and do not accept these Amendments, then we have alternative Amendments down which are, as I say, Amendments Nos. 101A and 102A starred. These will be Amendments to the way in which the ballots are conducted on whether one should go on having an agency shop, so that even if one has to have a majority of those eligible to vote in order to maintain an agency shop one would have to have a majority of those eligible to vote in order to get rid of it. It seems to me that the Government cannot have it both ways; they must accept either the first of the Amendments or the second. I think the first is preferable by far.
LORD DRUMALBYN: We feel that while this is perhaps a somewhat unusual provision, it is not so unusual, in view of two factors. We are dealing with a case where the electorate is being asked to decide whether or not it is to give up one of what we regard as its very important rights. Therefore, this is somewhat in the nature of a plebiscite. When there is a plebiscite with a change in the Constitution involved, generally a much higher level of support is required for a

835
change to be made than in other circumstances. I am told, for example, that in Switzerland, where they have a constitutional plebiscite, not only is 50 per cent. of the population entitled to vote required to vote in favour of the change in order that it may become effective, but also 50 per cent. of all the cantons. I mention that simply because this is an importance change. Of course, the question of cantons is a question for the Federal Government. I am merely pointing out that this is an additional obligation, and that where there is a constitutional change of that kind it is not altogether exceptional.
The second point is that in this case a special obligation is laid on the electorate. It is putting an obligation upon itself and it is right that in supporting the agency shop agreement the union that applies for it—or it may be the employer who arranges for the ballot—should have the backing of 50 per cent. of those entitled to vote. I think the same applies for the continuance. Unless a union in these circumstances can command a majority of those entitled to vote, it is very difficult to see that it should really have the special rights that are conferred by the agency shop. I agree that there are circumstances in which the electorate may be scattered and it may be difficult to obtain the full 50 per cent. of votes. The Government are prepared to look at that point. I am not willing to accept the Amendment, and I do not advise noble Lords to accept it. I think it would be going much too far in the special circumstances. But it is possible that a compromise might be worked out in which the fact would still be recognised that to have an agency shop agreement imposed there should be a higher standard of voting than there is in the normal case.
This is not the same as a normal kind of local government election. This is something where people in the union are committing themselves to a very high obligation. Although, admittedly, in the United States the obligation to which they commit themselves is still higher—it is a closed shop—the turn-out there has proved to be extremely high, something of the order of 80 per cent. or more voting. So this is not an exceptional requirement and I do not think
836
it is unreasonable in the circumstances. I hope the noble Lord will not press his Amendment at this time. If he does not, then we will consider whether a compromise can be introduced at the next stage.
LORD DELACOURT-SMITH: I am not sure whether the Government have in mind any special arrangements to enable the people of this country to declare their views if the issue of entering the Common Market should become a very live one, but I have not heard that they are contemplating that it will be necessary to get a popular vote of at least 50 per cent. of the entire population in favour of that or of any other course they may be proposing. I must confess that I felt that the arguments put forward by the noble Lord, Lord Beaumont of Whitley, were completely convincing on this matter. It is so widely our practice in this country to rely upon a majority vote of those participating that we think it is fully justified in the circumstances with which we are dealing.
I must confess that I cannot see the matter in quite the highly dramatic light that the noble Lord on the Government Benches tended to cast on it. I will therefore content myself with expressing the hope that the Government after consideration will meet the spirit and letter of the Amendment which noble Lords from the Liberal Party and my noble friends are putting forward; because there can be no doubt that if this is not done, the danger could arise of a desire of people for a particular course being frustrated by the fact that a certain number did not trouble to cast a vote at all. Any situation which held that possibility, any arrangements which held a possibility of such a situation, would be bound to create the impression that the Government's desire was to place obstacles in the way of these arrangements being made and that one of the obstacles was a quite exceptional and unusual requirement for an absolute majority vote.
LORD BEAUMONT OF WHITLEY: There was one argument put by the noble Lord, Lord Drumalbyn, which I did not entirely understand. I thought that one of the reasons for this provision in the Bill was the fear that in very lowturnouts, a very small minority of workers might make a decision against the wishes of the majority. If the noble Lord is

837
saying that he looks forward to large turn-outs and that that is the experience in America, the case for his provision is much weakened. But far be it from me to look a gift horse in the mouth ! We are pleased that the noble Lord has agreed to look at this point again. I confess that I thought that if he was going to meet us, he might have spelt out a little more the lines on which he was thinking ! This Amendment has been down for a long time. The Government have had a long time to think about it. The noble Lord did not give us much idea what he was prepared to do. Still, one crumb is better than no bread. I therefore beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
2.0 a.m.
LORD DELACOURT-SMITH LORD DELACOURT-SMITH moved Amendment No. 94:
Page 10, line 23, leave out subsection (2).
The noble Lord said: I do not propose to spend very long on this Amendment, which refers to certain action being an unfair industrial practice. I must confess that this subsection creates in the minds of my noble friends the feeling that there is a disposition to load, and indeed to overload, this Bill with references to unfair industrial practices, whether or not the existence of such a practice at any particular juncture is likely. I move this Amendment really for the purpose of asking the noble Lord whether he can describe to us the kind of circumstances in which he envisages that this kind of action might be undertaken, after the action foreseen in subsection (1) of this clause has been taken.
LORD DRUMALBYN: The noble Lord has asked in what kind of circumstances we would envisage this unfair practice being committed. The agency shop provisions aim at ensuring stability and at the same time providing acceptable and recognised methods for change, but surely it would not be right to permit a union to take industrial action to induce an employer to ignore the results of the ballot. That would simply frustrate the declared wishes of the workers and cause unstable industrial relations. It is very difficult to conjure up particular circumstances, but supposing that there had been
838
a situation where there was a dissident, but much smaller, union, and the electorate had declared itself in favour of a larger and perhaps registered trade union: it would be an unfair industrial practice then for that smaller union to call a strike or to procure or finance a strike, or even to threaten a strike. Equally, it would be an unfair industrial practice for an employer to threaten a lock-out or anything of the same kind.
Under subsection (2) we are dealing with
"any person (including any trade union or other organisation of workers or any official of a trade union or of such an organisation)".
Surely in these circumstances it would not be right to bring pressure on an employer to enter into an agency shop agreement with somebody else, or to fail to enter into art agency shop agreement with the particular union which had won the ballot. It seems to me that this would be an absurdity. The whole point of having a ballot in the first place, and going through this procedure of reference to the and a ballot conducted by the C.I.R. is simply to avoid industrial strife. If, at the end of it, the wishes of the majority are to be ignored, and there is to be industrial strife, it seems an absurdity. I hope that the noble Lord will agree.
LORD BERNSTEIN: Am I right in assuming that the noble Lord, Lord Drumalbyn, was talking about Clause 12(2) on page 10 of the Bill? Because I read that entirely differently. It says:
"It stall be an unfair industrial practice for any person—"
and for "person" we could say "worker", could we not?—
"(including any trade union or other organisation of workers or any official of a trade union or of such an organisation)"—
and then it goes on about
"calling organising, procuring or financing a strike, or threatening to do so, or … any irregular industrial action short of a strike …"
I cannot see anything here about what the employers have to do.
THE LORD CHANCELLOR: If the noble Lord will look at subsection (2) he will see that the last words of the subsection—which he did not read—make it

839
an unfair industrial practice to take specified industrial action
"to induce or attempt to induce an employer not to perform a duty imposed on the employer by the preceding subsection."
In other words, the purpose of subsection (2)—the nature of the Amendment being to omit it—is to see that the employer does create an agency shop where the ballot is in favour of it, and that nobody is allowed to interfere with him or to prevent him from doing it.
LORD BERNSTEIN: I thank the noble and learned Lord the Lord Chancellor, but I still do not think that the reply—which we shall probably read tomorrow—deals with the unfair industrial practice of an employer. The question put to the noble Lord, Lord Drumalbyn, was whether he would explain how it would work. I did not gather from what he said how it would work, and I should like to know.
LORD DELACOURT-SMITH: I think that my noble friend is quite right. I do not think that the reply satisfies us at all on the points we were raising. The noble Lord, Lord Drumalbyn, imported into his explanation a number of things which I cannot see in the clause at all. For example, he told us that it would be very wrong for an employer to organise a lock-out to frustrate action under Clause 12(1). Indeed it would be, I am sure. It is conceivable, because agency shop agreements may be made by a large number of employers and one of them, for some reason or other, may decide that he wants to frustrate the decision in respect of his own plant or factory. But there is nothing whatsoever, at any rate in subsection (2)—there may be in some other part of the Bill as one so frequently finds—which forbids an employer to organise a lock-out.
I had a hasty look at the definition of "strike" to see whether by any odd chance it embraced "lock-out" in this Bill, but it does not. Nor indeed does "irregular industrial action". As I understand it, there is no bar to an employer organising a lock-out to frustrate action under Clause 12(1). Moreover, the noble Lord did not really give us any explanation of the kind of circumstances in which what is in subsection (2) could in any reasonable sense arise. It cannot arise, surely, from a
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union which has just established the agency agreement, and I take it that the noble Lord is not suggesting there would be a situation in which there was a minority union which would be so aggrieved at the result that it sought to induce this kind of action. I gather from the gestures of the noble Lord, Lord Drumalbyn, and the words of assent from the noble and learned Lord the Lord Chancellor, that that is precisely the sort of situation that they do envisage. That again is very odd, because it underlines even more clearly than all the other situations which have been mentioned the desirability of not trying to dispose of a complex matter like this in the rigid manner set out in the machinery clauses of the Bill, and by the device of a ballot, the inadequacy of which for this sort of purpose we have been emphasising. The superiority for this sort of purpose of an organisation like the Commission on Industrial Relations we have also been emphasising. I am bound to say that I am afraid the noble Lord has not convinced my noble friends and myself.
LORD DAVIES OF LEEK: There seems to be some hesitation, but we should have some answer here, I believe, about the definition of an unfair industrial practice which becomes illegal, which is punishable by law, and in which the extent of the punishments can almost reach the point where a man could ultimately be sold up. Now is it an unfair industrial practice, as was hinted at, for me, as an employer, because I do not like what is going on, to employ an agent provocateur, as was done in American trade unionism? There is nothing at all in this Bill to deal with that point. All the time the onus and the burden are put upon the employee, but surely there ought to be some protection for the employee against the employer, who can in some cases employ an agent provocateur. I think we ought to have something more definite than this. The hesitation on the other side at this early hour in some of the answers sometimes make me think that the hastiness with which these briefs have been prepared has been a bit unfair to the noble Lords who have worked so gallantly and so hard on the other side. A lot more time should be taken. Why rush the Bill like this? Have a little more time, and give us fresh answers.
LORD BROWN: My noble friends are puzzling me again. The noble Lord, Lord Davies, has suggested that the employer might employ an agent provocateur. He is a worker, and if he incites his fellows to strike against the results of a ballot, then he will be dealt with under Clause 2. My noble friend, Lord Delacourt-Smith, suggested that it was inconceivable that a union which had taken part in a ballot which was favourable to an agency shop agreement could possibly turn round and organise a strike. Of course they would not. But there might be a minority, Maoist or something like that, members of the union, who were quite capable of doing this. We saw what happened recently at one of the Ford works: a ballot was taken and then certain people organised some action against the ballot. We must he fair about this, these things do happen, and
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD HENLEY): Before I call Amendment No. 95, I should draw your Lordships' attention to the fact that if Amendment No. 95 is agreed to I
this clause is necessary. I do not know if it is because it is so late that we are casting away our own knowledge of what happens in industry and behaving as though these things do not happen. They can happen, and this clause is a reasonable one in the circumstances.
LORD SHACKLETON: With all this talk about agents provocateurs, I have been wondering who is fulfilling the role. Certainly not the noble and learned Lord, the Lord Chancellor, who looks very peaceful. But we are very dissatisfied by the answer and I think there is no alternative but for us to divide on it.
2.14 a.m.
On Question, Whether the said Amendment (No. 94) shall be agreed to?
Their Lordships divided: Contents, 17; Not-Contents, 73.

CONTENTS

Bernstein, L.

Delacourt-Smith, L.

Milner of Leeds, L. [Teller.]

Brockway, L.

Diamond, L.

Sainsbury, L.

Brown, L.

Gardiner, L.

Shackleton, L.

Champion, L.

Garnsworthy, L. [Teller.]

Wells-Pestell, L.

Collison, L.

Hoy, L.

White, Bs.

Davies of Leek, L.

Hughes, L.

NOT-CONTENTS

Aberdare, L.

Essex, E.

Radnor, E.

Amory, V.

Exeter, M.

Rankeillour, L.

Barrington, V.

Ferrers, E.

Reading, M.

Beauchamp, E.

Gisborough, L.

Redesdale, L.

Belstead, L.

Goschen, V. [Teller.]

Redmayne, L.

Brabazon of Tara, L.

Gowrie, E.

St. Aldwyn, E.

Brooke of Cumnor, L.

Grimston of Westbury, L.

St. Helens, L.

Brooke of Ystradfellte, Bs.

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

St. Just, L.

Caldecote, V.

St. Oswald, L.

Chesham, L.

Harvey of Tasburgh, L.

Sandford, L.

Conesford, L.

Henley, L.

Sandys, L.

Cottesloe, L.

Ilford, L.

Selkirk, E.

Cowley, E.

Jellicoe, E. (L. Privy Seal.)

Sempill, Ly.

Cromartie, E.

Kemsley, V.

Sinclair of Cleeve, L.

Cullen of Ashbourne, L.

Lansdowne, M.

Strange, L.

Daventry, V.

Lauderdale, E.

Strathcarron, L.

Davidson, V.

Lothian, M.

Stratheden and Campbell, L.

Denham, L. [Teller.]

McCorquodale of Newton, L.

Thorneycroft, L.

Digby, L.

Massereene and Ferrard, V.

Tweedsmuir, L.

Drumalbyn, L.

Mowbray and Stourton, L.

Tweedsmuir of Belhelvie, Bs.

Dudley, E.

Moyne, L.

Vivian, L.

Dundee, E.

Nugent of Guildford, L.

Ward of Witley, V.

Eccles, V.

Orr-Ewing, L.

Windlesham, L.

Effingham, E.

Pender, L.

Yarborough, E.

Elliot of Harwood, Bs.

Poole, L.

Resolved in the negative, and Amendment disagreed to accordingly.

cannot (all Amendments Nos. 96, 97 and 98.
2.22 a.m.
LORD DELACOURT-SMITH LORD DELACOURT-SMITH moved Amendment No. 95:
Page 10, line 33, leave out subsection (3).
The noble Lord said: Perhaps it would be for the convenience of the Committee

843
if I say that it would not in any case be my intention to move Amendments Nos. 97 and 98, having regard to the time. The purpose of subsection (3) is, I think, clear, which cannot be said for all the subsections in the Bill. We are concerned at the arrangement which is implicit that in the event of a rejection by the ballot of the agency shop agreement there must elapse a period of two years before the issue can be revived. This appears to us to be an unnecessarily long period, and in particular it seems to us to create the danger of an unscrupulous employer—and I fear there are such people—who wishes to frustrate the creation of an agency shop seeking the operation of the machinery in this clause, as of course he can (that is clear from Clause 10(2)), knowing that it was a premature ballot and that a failure would give him two years' respite. This, I think, is an undesirable provision, and by moving this Amendment we want to draw attention to it.
LORD DRUMALBYN: Again the noble Lord has had some contorted fears in this matter. I do not think that what he said is at all likely to happen; namely, that the employer would call a ballot with a view to having the ballot before opinion had formed. I suppose that it is just possible, but it seems extremely unlikely that this would happen. If one has an election one can only have it at a given point of time and fix the majority of opinion at that time. If the majority showed that it was not yet ready for an agency shop then, as the Bill now stands, it will be necessary to wait for another two years before the next one. This might not be an improper time. I do not see how one can make a proper case for the instance that the noble Lord has mentioned. In all other cases two years would be a reasonable time if you were going to secure stability for the arrangements. To say that merely because the agency shop was not approved therefore there should only be a six month period in that case, or for that matter in all cases, would not seem to be a reasonable provision. One has to make a provision which is reasonable taking all the cases together. This is a reasonable provision and in line with other provisions in other parts of the Bill.
LORD GARDINER: I wonder whether the Committee has dispersed at this hour, but that is a matter for the Government. This is one of the peculiar clauses and perhaps the noble and learned Lord the Lord Chancellor could help me about it. When we have elections we allow for the fact that returning officers may make a mistake; we all know that anybody may make a mistake. The Commission may make a mistake. I wonder how many judges are going to be prepared to sit on the Industrial Court. What, under this subsection, is the function of the Industrial Court? It is a rubber stamp. It is very unusual to have a court of judges who have nothing to decide. They are not capable of making a decision; they are told what to do. If the Commission makes a report it may be inaccurate; there may be evidence before the Court that the Commissioners made a mistake in reporting the result of the election. There is nothing the judges can do. If the Commission reports, however inaccurate the report may be, the Court shall make an order. Knowing the judges, I wonder how many are going to he content to sit in a court which under the Act is a mere rubber stamp and cannot take any decision at all. There is no option in the matter. The report of the result of the election, just like the returning officer's report (although we have provision for appeal in that case) could be wrong. But whatever evidence there is that there is a mistake, the Court is compelled to make an order even though it knows the order is wrong.
2.30 a.m.
THE LORD CHANCELLOR: May I deal with the two separate points which have been made? In reply to the first speech, I do not think the noble Lord, Lord Delacourt-Smith, had realised that before an employer can operate the machinery under Clause 10(2), there has to be a situation where one or more trade unions desire to enter into an agency shop agreement. That is the first condition. Therefore, he cannot operate it against their will. As regards the second point, I am bound to say that I am rather surprised by the observations of the noble and learned Lord, Lord Gardiner. The point is that the court has to be satisfied of two conditions under

845
Clause 10(3) before it makes a request to the Industrial Court. The conduct and the result of the ballot which takes place as the result of the request by the Industrial Court then is within the competence of the C.I.R.; and the C.I.R., having performed its function, reports back to the Court, which then is under an obligation to make an order. I cannot imagine why tile noble Lord thinks that a court, being under no obligation to make an order, is necessarily put in an invidious position.
This is happening, of course, in a wide range of jurisdictions. There are the rules of court which enable a number of automatic decisions to be taken, either in Chambers or on paper. That will depend upon the rules of court when they are made. But there is nothing invidious in a court's making an order for an agency shop when it has satisfied itself that the conditions of the machinery sections have been duly complied with, any more than there is in a companies court ordering compulsory winding up when the facts are established without opposition in a case of that sort. The fact is that courts are there for the purpose of seeing that the machinery is duly performed and duly carried out. The court is in charge throughout. It has to be satisfied of the conditions under subsection (10), and it has to receive the report of the Commission that it has discharged its function in a particular way under the preceding subsection. I cannot see exactly why there should be any objection to their then carrying out the
846
duty which is laid upon them by the following subsection.
On Question, Amendment negatived.
LORD DELACOURT-SMITH LORD DELACOURT-SMITH had given Notice of his intention to move Amendment No. 99:
"Page 11, line 7, leave out subsection (4)".
The noble Lord said: In view of the hour, I do not propose to move this Amendment, but we may wish to return to this matter at a later stage.
Clause 12 agreed to.
House resumed.

SURREY COUNTY COUNCIL BILL [H.L.]
Reported, with Amendments.
CORNWALL COUNTY COUNCIL BILL [H.L.]
Reported, with Amendments.
INTEREST ON DAMAGES (SCOTLAND) BILL

  UNSOLICITED GOODS AND SERVICES BILL
  Returned from the Commons with the Amendments agreed to.
  House adjourned at twenty-six minutes before three o'clock.