HL Deb 10 May 1971 vol 318 cc719-846

7.43 p.m.

Committee stage resumed.

Clause 10 [Agency shop agreement]:

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 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.

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 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 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. 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 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 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 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- 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. 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 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 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 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 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 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 "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 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 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 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 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 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 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 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? 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 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 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 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 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. 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 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 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 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 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.

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 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- 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 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.

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 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 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 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 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 BYERS

s: This is the important point. The noble Lord said that the C.I.R. can give its advice, but am I not 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 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 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 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 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—

  1. (a) the nature of the work which they are employed to do, and
  2. (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. 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 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 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 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 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 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 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 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 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 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 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.

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.

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 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 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: 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.

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 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 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 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 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 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- 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 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.

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 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.

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 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 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 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 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—

  1. (a) appears to the Commission to arise in connection with it, and
  2. (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 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 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 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 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 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 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.

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: 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 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 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 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. 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 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 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 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 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 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, 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 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 duty which is laid upon them by the following subsection.

On Question, Amendment negatived.

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.