HL Deb 11 May 1971 vol 318 cc950-1056

8.8 p.m.

House again in Committee.

LORD DRUMALBYN

May I suggest it might be for the convenience of your Lordships' House if we take Amendment No. 106A at the same time. It seems to cover very much the same points.

BARONESS WHITE moved Amendment No. 106: Page 13, line 20, leave out ("an employers' association") and insert ("one or more employers' associations whether registered or not").

The noble Baroness said: The noble Lord look the words out of my mouth. I was about to propose precisely the same thing because, although the Amendment which I am now moving differs slightly in its wording from that to which my noble friend Lord Archibald has put his name, the object of both these Amendments is, I think, the same. We are disposed to think that the wording chosen in our Amendment is perhaps a little fuller, and possibly a little clearer, but we would not quarrel about the language of either of these two Amendments, and if the Government were disposed to accept the one rather than the other I do not think we would raise any serious objection. What we are concerned about, of course, is the substance of the matter.

I need hardly remind your Lordships that what we are particularly dealing with in Clause 16, with the special provision for approval of closed shop agreements, concerns most especially the employees and employers in theatrical and cinematograph industries, and also, as my noble friend Lord Blyton said earlier to-day in a slightly different context, the seafaring union and employers. The object to this Amendment, in brief, is really to preserve arrangements which have been working to the general satisfaction, to the very great improvement both of acting standards and of levels of employment in the theatrical industry; we do not want by legislation to disrupt those admirable arrangements, or to make it more difficult for the objects of this clause to be achieved.

This clause, if I might remind your Lordships, was inserted after discussions in another place when it was generally agreed, including Her Majesty's Government, that the provisions relating to the agency shop in Clause 10, which we discussed earlier, were not adequate, in particular for the two areas of employment which I have mentioned. There may be others, but the ones with which we are best acquainted and best informed in all parts of your Lordships' House are the ones that I have mentioned. We are told —and my noble friend Lord Archibald, and I trust the noble Baroness, Lady Lee, will also intervene, and maybe other noble Lords —that it is quite possible that in the theatrical profession there will be, or can be, difficulties about the registration of employers in the sense in which it is meant to be engaged in this Bill.

When we were discussing the other side of the coin, about the independent organisation of workers, on which we had quite considerable discussion earlier this afternoon, one could at least understand, even if one did not agree with, the Government's point of view on the philosophical objects of this legislation; that they could argue from their own point of view with some cogency that if a union did not register it was not complying with their idea of the way in which a union ought to behave, and that therefore it could not be brought within the purview of this Bill. Our opinion on that has been very clearly put from this side of the Committee. I do not think anyone is in any doubt about where we stand.

But where employers' associations are concerned it would appear to me that the Government really have no such strong ideological or dogmatic reason for insisting that they also should be formally registered. The burden of our Amendment, and of the Amendment in the name of Lord Archibald which we are discussing together, is that there should not be any rigidity about this. Needless to say, if the employers' association wishes to register there will be nothing to stop them. What we are concerned about is that if, for reasons of their own, they decide it will not be advantageous for them to register they shall not be forced to do so. In our earlier discussion, when we were discussing the other side of the coin about independent organisations of workers, I thought I heard a noble Lord say he did not wish to ram things down other people's throats, and he went on to say the unions would not get various privileges or rights conferred in other parts of this Bill. But is there any real reason why in these circumstances registration should be rammed down the throats of employers' associations?

I cannot speak with the knowledge of some of my noble friends. I can only say that we are told there are circumstances in which it is apprehended that employers' associations in the theatrical industry will not wish to register; for example, the smaller managements in the provincial theatres who have their own organisations run, as I understand, by honorary officers who are engaged in running their own businesses, their own theatres and so on. They would really find it very difficult and extremely expensive, quite frankly, to conform with all the conditions of registration and the possible consequences of registration; because, if you are a registered association, then under this Bill persons in your employ, for example, can lodge complaints which have to be investigated, and so on and so forth. Records may have to be kept in a way which a relatively informal organisation does not feel obliged to keep them. There may be all kinds of circumstances which a large organisation, a wealthy organisation with full-time staff and a proper office and so forth, might be able to take perfectly in its stride, but we all know that theatres are apt to describe themselves as on the edge of economic viability, and that they really may not feel able to embark on a course which they think may lead them into expenditure which at present they do not have to incur.

We are extremely anxious that the main purpose of this Clause 16 should be fully carried out, because we were entirely persuaded, as ultimately the Government themselves were, that the closed shop —as opposed to an agency shop —was essential for preserving proper conditions and, frankly, averting chaos in the theatrical and cinematograph industries. Therefore we wish to do nothing at all that would endanger the success of the objects of this clause, but what we are asking is that the Government should not be rigid or dogmatic in this, and that while they think that something is sauce for the trade unions they should insist it should also be sauce for these employers' organisations. I hope very much that my noble friends and the noble Lords possibly on the other side of the Committee would be able to support us in this. I beg to move.

8.20 p.m.

LORD ARCHIBALD

As usual I shall be brief and, as usual in these recent weeks, I am in somewhat of a dilemma. I am not sure, not being a lawyer, whether the phrase used in Amendment No. 106: one or more employers' associations whether registered or not", or the words used in my amendment: or organisation of employers is the more effective. I incline naturally to favour my own words, provided that it is understood that that also implies "whether registered or not".

The purpose of both of these Amendments is to allow an approved closed shop agreement between a union, or unions, and an association of employers, even if the latter is not registered under the Act. In other words, the trade unions should not be put in the position where they suffer from the fact that the employers' associations have decided not to register. In the entertainment industry it is entirely likely that some of the major employers' organisations will not register. The disadvantages of registration for some of these organisations, I am advised, are considerable and obvious. My noble friend Lady White has referred to the situation which prevails with regard to the managements in the provincial theatre field where they operate with honorary staff and with, in effect, no overhead expenses. If they are to register and to set up all the machinery to be able to deal with the problems which might face them, some of these organisations might even have to go out of existence. They would be nervous of being exposed to the expenditure of time and money which could be forced on them even by quite unreasonable complaints against them made to the Registrar and to the Court under Clause 79 and the following clauses of the Bill. These are some of the disadvantages that the small and, as one might say, honorary employers' associations might suffer.

As against these disadvantages there does not appear to be any tangible advantage offered by the Bill to an association of employers if it should decide to register. In other words, where you have provincial managers operating on a honorary basis, without premises, without overheads, what advantage is there for them, under the Bill, to register and be put at least at risk of having a great deal of expense to meet? That particular type of employers' association is in quite a different position from any of the trade unions, or at any rate from any of the major trade unions. In respect of that, it is unreasonable that it should become impossible to make an approved closed shop agreement (even with an established employers' organisation which would be willing and indeed perhaps anxious to have such an agreement), for the quite extraneous reason, which is not contemplated under the Bill, that the employers' association is not so constituted as to be able to afford to register under the Bill. There could well be circumstances in which the making of approved closed shop agreements in the entertainment in dustry would be virtually impossible, as they would have to be made by the union with each separate employer.

I think it is now well known —to some extent I covered this ground, perhaps in an irrelevant way, on an earlier Amendment —that both in the theatrical and in the film industries many of the employers are ad hoc companies, set up for the particular theatrical or film production, and have only an ephemeral existence. It is quite impossible, within the terms of the Bill, for the union to make an agreement with every such ephemeral ad hoc employer. These ad hoc ephemeral employers represent a very considerable part of the employment offered in both the cinematograph and theatrical industries.

LORD DRUMALBYN

May I ask the noble Lord for information? Are these ad hoc employers members of an employers' association?

LORD ARCHIBALD

I am sorry; I thought I had, in an entirely irrelevant speech on an earlier occasion, pointed out that there may be the A.B.Q. Company, which is a member of the Film Producers' Association or a member of one of the theatrical associations, but on its next film, or in its next theatrical production, it sets up the A.B.Y. Company. That new company, set up, I imagine, mainly for tax reasons, is not, in itself, a member of the employers' association. In the film industry the situation is covered to some extent by the fact that the major studios are members of the Film Producers' Association, and they insist with any tenant, any production company hiring the studio, that the contract includes that the producer shall observe all the conditions agreed between the unions and the producers' association. But there are small studios outside the membership of the Film Producers' Association, and if the producer wants to do a film, say, mainly on location, with only a little studio time, the processing business could go to one of these small studios outside the Film Producers' Association and thereby escape the obligation to honour any of the agreements between the Film Producers' Association and not only Actors' Equity but A.C.T.T. and all the other unions involved.

There is a real problem here which I am sure the noble Lord, Lord Drumalbyn, who is always so reasonable, will realise needs to be looked at again. We do not want to be dogmatic in our approach to this matter. There is a reasonable ground here for looking at a problem which will exist if the Bill goes through in its present form. It has not been a problem in the past because what, on an earlier occasion, I called not the pre-entry or the post-entry but the point of entry closed shop, really took care of the situation. I do not think that in this situation agency shop provisions are entirely suitable. There has to be some type of approved closed shop, pre-entry closed shop, post-entry, point of entry closed shop, and it has to apply between unions and employers' organisations, whether the employers' organisations are registered or not. The important point is that the unions should not be put at a disadvantage because the employers' organisation, either for reasons of finance or for other reasons which it would not be appropriate for me to discuss, decides not to register. I beg to move.

LORD BERNSTEIN

I should like to support the Amendment. But before I try my powers of persuasion on the Minister, may I ask whether he is going to accept this reasonable Amendment? It might save a lot of time if he said, "Yes, of course, subject to a change of wording."

8.30 p.m.

LORD DRUMALBYN

I am afraid that I am not in a position to accept the Amendment. What I propose to tell noble Lords is that for reasons I shall give we shall certainly consider it very sympathetically between now and the next stage. If noble Lords do not wish to speak more on this subject, no one will be more delighted than I am, because that will save time and they can probably make their representations in other ways. But I do not want to interfere in any way with the debate, and if noble Lords who have such great experience of this matter wish to put their points, then I shall be very glad to listen to them.

LORD HENLEY

Does the noble Lord mean that he prefers to discuss this issue when we come to Schedule 1, Part V, because it arises there as well?

LORD DRUMALBYN

If the noble Lord is asking whether I shall then be able to make up my mind and tell the Committee, I am afraid that I shall not be in a position to give a decision at that time. But I really do not think it is necessary to pursue this issue further now, because we shall come back to it on Schedule 1, Part V. Would the noble Lord, Lord Bernstein, like me to say a word?

LORD BERNSTEIN

This is an important matter for a very good union which has functioned very well for many years. As my noble friend Lord Archibald said, it is a point of entry closed shop. Will the noble Lord be willing to meet Equity representatives before the next stage? They would have something to say to him, and it might save a great deal of time if he understood a point which is not covered in Clause 16.

LORD DRUMALBYN

It might be better if I said what I have to say at this stage, and noble Lords will then be able to add what they like. As the noble Baroness, Lady White, recognised, it is a fundamental part of the philosophy of the Bill, and of the Government's industrial relations policy, to encourage organisations of workers and of employers alike who are involved in collective bargaining, to accept the obligations of registration. If organisations are to enjoy the very considerable benefits of registration which the Bill provides, then in the Government's view they should accept the responsibility to their members and to the community and accept the very reasonable requirements of registration. These requirements are not, by any stretch of the imagination, onerous, but they will ensure that the rules of trade unions and of employers' associations conform to reasonable standards.

I realise that, even although it may be agreed that the registration of employers' associations is desirable, the argument here is a very much narrower one; not whether the registration of employers' associations is desirable, but whether in the context of Clause 16 and Schedule 1 an organisation of employers should be required to be registered before it can be eligible to make an application for approval of a closed shop agreement. The argument is that a requirement on the employers' organisation to register before it can be a party to a joint application for approval of a closed shop, is a handicap for the trade union and not for the employer because the benefit of a closed shop would he much greater for the union, and the incentive for the employers' organisation to register will not be great in the absence of other reasons for wanting the advantages of registration.

LORD ARCHIBALD

I am sorry to interrupt, but in the case we are discussing the situation which has been operating for many years has been just as much to the advantage of the employers as of the employees.

LORD DRUMALBYN

I recognise that there are advantages on both sides; but the point I am making is that there is in the Bill more incentive for workers' organisations to register than there is for employers' organisations to register.

LORD HENLEY

I am not sure that the noble Lord is not missing the whole point. It has nothing to do with whether one side should or should not register. The point is that when everybody agrees that an approved closed shop is right there are circumstances when a "fly-by-night ' employer can escape the whole of the provisions of the Bill.

LORD BERNSTEIN

Is it possible that I made a very bad mistake, and I should have outlined the case?

SEVERAL NOBLE LORDS

No.

LORD DRUMALBYN

I thought that the case had been very clearly outlined by the noble Baroness, Lady White, and the noble Lord, Lord Archibald. I am quite certain that the noble Lord, Lord Bernstein, will have something valuable to add, but perhaps I may be allowed to continue for the moment. It was part of the case made to the Secretary of State by those who sought special exemption of closed shop agreements in certain industries, that the closed shop agreements in those industries were as important to the employer as to the workers, and that those employers were as anxious to have their closed shop agreements continue in force as were the trade unions. Noble Lords opposite really cannot have it both ways.

Clause 16 and Schedule 1 have been based upon the assumption that employers in those industries were anxious and willing to continue their present arrangements. If that is so, they will be as anxious to join in an application for approval as are the unions, and the incentive to register will be as great. But I recognise the handicaps and the special eases which the noble Lord, Lord Archibald, has pointed out. The main argument that is now being advanced is that a joint application can be thwarted if the employers' organisation finds no attraction in registering or, for one reason or another, is unable to register. In other words, we are being told that there may be organisations of employers which would willingly join with trade unions in applying for approval of their closed shop agreement, but not if, as a requirement for doing so, they must accept the very reasonable responsibilities of registration.

I would remind the Committee that, under the provisions for approval of a closed shop, an employers' association must be a willing party to the joint application. If, therefore, these Amendments were made to permit an unregistered organisation of employers to make a joint application with the union, it would still be a matter for the employers' organisation to decide whether or not to join in the application. The organisation would still be free to choose not to be a party to the application, or indeed to a draft agreement. No doubt we shall be debating that proposition later on. However, in this one aspect of registration there may be some disparity between the position of the union seeking approval for a closed shop, and the position of an employers' organisation which is willing to join in the application in its own interests, but would find the requirements of registration, of which it would otherwise have no need, a disincentive to participate in the application.

We are fully prepared to look at the matter again to see what we can do to help. But I am afraid that, at the present time, we are not prepared to accept these Amendments because of the implications that they have for the registration features of the Bill, which are so important to our philosophy. But we shall sympathetically consider whether a concession might be made on this point at a later stage. Perhaps I may add this. Some play was made with the fact that non-registered employers' organisations might be open to complaint and might have to incur considerable expenditure for that reason. I think I should make it plain that non registered employers' organisations are just as much open to complaint so far as industrial tribunals are concerned, even although they would not be under the jurisdiction of the Registrar in the way that registered employers' associations are.

The noble Lord, Lord Archibald, made clear the difficulties of what he calls the ephemeral organisations and also of the provincial organisations which work with volunteer staff alone. I can assure him that we shall be looking carefully at this matter to see whether we can help in an appropriate way. There is one other thing that I ought to say on the first Amendment. It is that there is nothing in the provision to prevent more than one employers' association applying jointly with a union for approval of a closed shop agreement. There is nothing in the Bill to prevent that, and so to that extent the Amendment is net necessary. It is the second half of that sentence which joins together with the noble Lord's Amendments, and I do not intend to adjudicate between the merits of the words of those two at the present time.

8.40 p.m.

BARONESS LEE OF ASHERIDGE

What we are all seeking to do is to ensure that the spirit of the law is reflected in the letter of the law. It was for very serious reasons that in another place the principle of the closed shop was accepted to meet the exceptional circumstances of the theatre and the film world. It was agreed that they were not to be compared with industries such as mining, engineering or transport, where membership went on continuously and where long-term agreements could be made. Anyone who knows the talent, dedication and sacrifices involved in bringing the theatres of this country to their present eminence realises that again and again you have, as Lord Archibald said, a distinguished group of people who may be together for a matter only of weeks. This is true of London and all over the country as well. Very often it is future talent that is foreshadowed in those very modest enterprises.

We are obviously concerned about bogus organisations, but it seems to me that the intention of the Government in another place was to ensure that the theatre and cinema people, many of whom are more often out of a job than in one should be protected. The figures are really appalling. I am quite sure that Lord Bernstein. with his great knowledge, could bring me up to date. The most recent figures that I have are taken from a 1966 survey which shows the average employment for men as 17 weeks and for women 14 weeks in a year. It reveals that the earnings of an actor in that year were £800 a year and of an actress £450. We can make all the necessary adjustments to bring us up to date and also take into account that Equity has won a basic salary of £18. Actors earn less than industrial workers, and the sacrifices made to maintain our theatres still remains heroic. The point I am making is that you cannot compare the theatre or cinema world with any other industrial organisation.

I venture to say that it is not only difficult for all employers to register; it is impossible. It is impossible because of the improvised nature of much of the work, because of the short time of the work, and no little of the impossibility arises because you must have a kind of divine madness before you enter into such a profession, where you know you are going to be unemployed most of the time. I hope we will not have to quibble over this Amendment. I do not mind what the wording is, provided that we here can accept in that it is not just difficult; it is impossible, even with the best will in the world to have all employers registered. I was impressed by what the Minister said. Like us, he is concerned that the letter of the law should reflect the spirit and intention of the law. That is all we are seeking to achieve.

THE EARL OF BALFOUR

There are one or two points that I am not certain about. I feel that the two most important things in Clause 60 are that it shall he a closed shop so far as the union are concerned, and wherever the employers are in a group they shall be registered. I think that the important thing in the registration of an organisation of employers is that they have the right to alter their own rules (which is referred to in Clause 69 and in the next few clauses). There are problems in allowing any employer or employers' association to be not registered.

The shipping industry has been mentioned. You can have a good shipowner, one keeps his ships in good condition and in good order, and you can have a shipowner who has just one ship. I do not see why the Seamen's Union, for example, could not have a closed shop agreement covering that one-ship owner as well as many others, whether under a company contract or under a shipping federation contract. But to me the problem lies in the case of an employer who, not being in some kind of association, might skimp on the safety regulations. Can we make certain that the lifeboats float in the water? I have been in ships where, when you put the lifeboats in the water they sank. As another example, you have the big organisation of the coalmining industry, and yet you occasionally have little private mines set up who may pay 25 per cent. more than the National Coal Board. This often creates unrest with the unions. I feel that it is important to have the coal owners registered no matter who they are. Let us take one of the biggest groups of private individuals in this country, the farmers. Most of them do not come within the Bill for they do not employ enough people. Most farmers are in the Farmers' Union, and many farmers employ 10, 15 or 20 people.

Let me raise another problem on the question of association. I am wondering whether Lord Drumalbyn can help me. The firebrick industry centres round Falkirk in Scotland. There are about seven companies, most of them in an association. They have pretty well fixed-price contracts for their selling policy of bricks. It depends on the quality of the bricks, on the quantity and on various other things. There is a complete ring. Then there are one or two individual companies, also in the Falkirk area, which, although they may pay exactly the same wages, are outside that organisation. They refuse to have anything to do with the Firebrick Association. They are individual companies, usually selling their products rather cheaper. On the other hand, they cannot afford to have the number of salesmen that the bigger companies have. They rely, probably, upon a smaller circulation of business. If they entered into an association, would they be tied on their selling price? Would this sort of thing come in? These are the things I am not quite certain about.

8.50 p.m.

LORD DRUMALBYN

I think I almost saw the noble Lord, Lord Brown, about to give my noble friend the answer. I think he is really leaving the realm of industrial relations for (dare I say it?) restrictive practices of other kinds. I do not think I ought to venture further into this; bat perhaps I can say this one word to the Committee. It would, I am sure everyone would agree, be illogical if, having taken special steps in another place to provide for approved closed shop agreements, it were then not to be possible to make them. I think one has to make certain that it is possible at any rate to make the applications. But I think I ought equally to warn the Committee that, of course, in the long run this is bound to depend on the decisions made by the Commission in relation to what we put in the Bill. We put the gateways in the Bill and then it is the Commission which has to decide. I am saying this only to make clear that the mere fact that we make alterations here and there ought not to make it too easy —this is the Government's view —to form closed shop agreements, because we think that for the broad range of cases the agency shop agreement should meet the case. But having said that, I repeat that we shall gladly look very sympathetically at the case which has been made with a view to helping it as far as we can.

BARONESS WHITE

I think in the light of the very sympathetic response from the Minister we would not wish to press this Amendment, and I hope I have the agreement of the noble Lord, Lord Archibald, in that sense, as we are discussing his Amendment with our own. I do not want to enter into argument with the noble Earl, Lord Balfour, but I think he would find that some of the industries that he was referring to would have a good deal of difficulty in getting accepted under the Schedule as industries for which closed shop provisions would be suitable. We of course entirely understand the attitude of the Minister, that he cannot completely commit himself at this stage as to how the Government will meet this difficulty, but we are at least at one, I think, that, having had this clause inserted into the Bill, we all want to make it work. That, I think, is the nub of the argument. In those circumstances, while of course entirely reserving our position on Report, I beg leave to withdraw the Amendment.

Amendment, by leave withdrawn.

LORD ARCHIBALD had given Notice to move Amendment No. 106A: Page 13, line 21, after ("association") insert ("or organisation of employers").

The noble Lord said: The noble Lord, Lord Drumalbyn, is always so reasonable and sympathetic that I had hoped that on this occasion he might be even a little more sympathetic than he was, but I accept his good will in this matter and, in consideration of that, I do not intend to move my Amendment.

8.56 p.m.

LORD BELSTEAD moved Amendment No. 107: Page 13, line 26, leave out from beginning to ("and") in line 28, and insert ("if he is not already a member of that trade union or of one of those trade unions, as the case may be, must become such a member unless specially exempted").

The noble Lord said: This Amendment is intended to improve the drafting of this subsection, to clarify the provisions and to avoid misinterpretation, and to that extent it is a drafting Amendment. It has been suggested that it is possible to construe this subsection as meaning that, under an approved closed shop agreement, the terms and conditions of employment may include a condition that a worker must already be a member of a trade union; in other words, that the terms of the approved closed shop agreement would be that the terms and conditions of employment of the workers concerned should include a condition that every such worker must be or become, as the case may be, a member of that trade union. This Amendment removes this possible ambiguity and clarifies the meaning of the clause, which is that the condition of employment shall be that if a worker is not already a member of the union he must become such a member unless specially exempted; and the phrase "as the case may be", which might have occasioned the misconstruction, is, I hope, by this Amendment, clearly shown to refer to the words that trade union or of one of those trade unions".

There are just two brief points which perhaps I ought to add. There really was never any intention that the provisions of the clause should permit the approval of pre-entry closed shop agreements which require a worker to be a member of a particular trade union as a prerequisite for engagement. Such agreements are made void by the provisions of Clause 6, for the reasons which the Committee has already discussed. Of course, as I have said before, trade unions and employers will not be prevented by the provisions of the Bill from making agreements to regulate entry based on such relevant matters as skill, experience, qualifications or other valid criteria. The Government do not consider that trade union membership is a proper or reasonable ground of selection for employment, though it is important that trade union membership should be encouraged, as indeed it is encouraged under Clause 5 of the Bill, once employment has been taken up. I beg to move.

LORD DIAMOND moved Amendment No. 107A as an Amendment to the Amendment. Line 3 after ('union') insert C or independent organisation of workers').

The noble Lord said: The explanation of this Amendment, which I have moved as a manuscript Amendment, is that the Amendment which the noble Lord has just moved would make it impossible for Amendments Nos. 108 and 109 on the Marshalled List to be moved and, therefore, in order.to enable the principle of these Amendments to be kept alive, they have been altered to Amendments to Amendment No. 107, and I now beg to move the first of them. We have heard with interest what the noble Lord has said about his Amendment No. 107, and the clarification of the Bill which this seeks. I comment on it only to this extent, that this is an area where, as a result of the arguments made to them, the Government have moved very considerably from the Bill as originally introduced into another place, and we are delighted to see this element of flexibility and 'the willingness of the Government to meet, up to a point, the facts of the situation as they discover them to be after a Bill is introduced.

This is not an unprecedented happening. It is not wholly unprecedented for a Government to put forward proposals, whether in a White Paper or in a Bill, and, in the light of the facts as established during the course of debate, to move their point of view somewhat. Indeed, if my recollection serves me correctly there was a certain movement of opinion between the White Paper which was published by the Labour Party on this and the Bill which was put before Parliament but which never got beyond its First Reading. Therefore, the Government are in very good company in taking the point of view that, having put forward in the first place proposals which excluded anything in relation to closed shop agreements, and having subsequently listened to the arguments moved with considerable force and persuasion by employers of all Parties and no Parity, and trade unions, some affiliated to the Labour Party and some not, it was right to move to what I might call a considerable extent —perhaps not to the full extent —which Clause 16 represents.

What I am most anxious to do is not to say one word which might prevent the Government's continuing on this progressive course. I am all in favour of progress. Progress is quite simply defined: it is what I think is the right direction in which other people should go! I am most anxious that the Government should continue on what we on this side would call a progressive course. They have not yet gone quite far enough, but an attitude of flexibility will no doubt enable them to absorb all the facts of the situation which have been made so clear during the course of the debate, and to move a little bit further.

The essential point of this small but helpful Amendment is to prevent closed shop agreements not being available in all the circumstances in which employers and unions would wish them to be available. At the moment, approved closed shop agreements will be available under this Bill where the trade union, as defined in the Bill, has entered into arrangements with employers —and the trade union as defined in the Bill is of course a trade union which has registered. We should be making life unecessarily difficult for ourselves if we tried at this point of time to consider all the advantages and disadvantages of registration. They are many: they are covered in the Bill. They cover a number of clauses and two Schedules and all I perhaps need say to your Lordships at the present time is that it is a matter for consideration whether a union should seek to become a trade union within the definition of the Bill, by registering, or whether it should not.

What we are considering is the improvement of industrial relations. We are not under any compulsion to consider any particular framework which has been suggested as being the best means of achieving that. The question we really must ask ourselves is: "Which is the best method of improving industrial relations?" It has been accepted by the Government and it was previously the view of many responsible employers (and there are some very considerable and very responsible employers sitting in your Lordships' House at the present time —and it was the view of responsible trade unions) and again we have the privilege of including among the membership of your Lordships' House many of those who have the greatest possible knowledge and who speak with the greatest authority regarding trade unions —that the principle of the closed shop was a wholesome one for achieving good industrial relations in certain circumstances. They are not very widespread, but they are sufficiently important to be taken into account; and the Government are coming round to that point of view.

The question I am putting to the Government and to your Lordships is this: why, when there is now agreement between employers, employees and the Government that the closed shop has a proper position in the achieving and maintaining of good industrial relations, should we now seek to deny ourselves and our country the benefit of the continuation of these good industrial relations simply because a particular framework happens to have been suggested on a particular piece of paper called a Bill —no more than that. And the Bill is in our control: it is not our master. We are framing the Bill according to what we think is the best way of achieving peace in industry. Why, when these three important Estates of the Realm are satisfied that it is for the benefit of peaceful industrial relations that closed shop arrangements should continue, should we deny ourselves the availability of them simply because there is a technicality called registration which has to be undertaken?

I am suggesting that that is a wholly unimportant detailed technical issue, not worthy of comparison in relation to the important issue of maintaining and improving industrial relations, and therefore I am saying to your Lordships that surely it would be to our advantage, to the nation's advantage and, in particular, to the advantage of good industrial relations that there should be a closed shop arrangement of the kind about which the Government are now satisfied. I am therefore saying that, in order not to deny ourselves the continuation of good industrial relations, we should widen the issues so as to include both trade unions and independent organisations of workers. I therefore beg to move.

9.8 p.m.

LORD BELSTEAD

The Committee have listened to the noble Lord, Lord Diamond, moving the manuscript Amendment with his customary clarity. But the point which I do not quite understand is why the noble Lord should place such great weight on unregistered organisations of workers in the closed shop situation. It would seem to me—we have been over this ground before—that the rules for registration will strengthen the authority of the trade unions. To refer to only one point: the Registrar being empowered to investigate breaches of the rules will bring into play an initiative when unauthorised people call members of a union out on strike. Under the rules the authority for industrial action in a registered trade union must be clearly identified.

I find it hard to follow the logic of the noble Lord that, in a situation which all his noble friends have wished to see, and which was argued for with great persuasion in another place, the post-entry closed shop situation, after the five gateways have been gone through, the noble Lord should say, "We should like to see it with unregistered organizations." This would bring down powers which his friends in another place, and indeed all of us, would not like to see. The second reason why I am at a loss is that I would have thought the guiding principles of Clause 63 were all the more important in relation to a post-entry closed shop situation. If a worker knows that he or she is to become a member of that organisation or, on conscientious grounds, will be exempted —and with only those two choices —is it not all the more important that the guiding principles of Clause 63 should remain in play?

Mainly for those two reasons I would put again to the noble Lord that, although we have followed him and realise his feelings on this subject, we on this side of the Committee believe that registration is all the more necessary in a closed shop situation; also we believe, as we have said all through the passage of this Bill, that it is reasonable and democratic, and does not impose onerous conditions on any organisation of workers. For those reasons we must resist these two manuscript Amendments.

LORD DIAMOND

The noble Lord, Lord Belstead, was good enough to say that he had listened to what I said, but did not follow why I attached so much weight to unregistered, that is to say, to independent organisations of workers. May I impinge on the patience of the Committee to go over the ground again, and to make the point even more clear than it is at the moment? I hope I shall be forgiven for saying that the difference between us is that the noble Lord, Lord Belstead, regards his Government as the repository of all wisdom—

LORD BELSTEAD

Oh, no!

LORD DIAMOND

—Oh, yes—and that we on this side of the Committee do not. Let me explain that. The noble Lord is a Member of a Government who are proposing to introduce certain provisions. I do not want to go into details, because we shall argue for hours if we start going into detail about registration and all the clauses referred to by the noble Lord. I am anxious not to waste time but to get on with the Bill. The noble Lord has referred to certain registration provisions. I would merely say that there is a difference of opinion between the two sides of the Committee about the "worthwhileness" of these provisions.

Were we on the Government Benches we would be introducing provisions of the kind introduced into the Bill which had its First Reading in another place before the General Election and to which all unions at present registered would find no difficulty in subscribing. But the noble Lord's Government are proposing certain procedures which will present very many difficulties, and so there will be many unions who will exclude themselves from the definition of a trade union because they will not register —certainly not to begin with, and probably not for a very long time —because the provisions for registration are in their view very onerous indeed.

I am not at this point wishing to enter into the argument about who is right on this; I am merely saying that, if we were the Government, registration would be accepted by all unions which are at present registered under the previous Act. Under this Bill, when it becomes an Act, many unions will not register. We shall therefore have a situation which would not apply if we were the Government. We shall have a situation in which industrial relations will be disturbed when this Bill becomes an Act, since a number of unions will not register because of their view that registration would be onerous for them. Accordingly, they will not be able, unless my Amendment is accepted, to continue their present closed shop arrangements, Which are satisfactory to employer and to union alike, and which correspond with the principle embodied in Clause 16, merely the question of registration being absent.

I hope I have made the position clear. We are not entering into the argument about who is right on registration. I am merely drawing your Lordships' attention to the fact that, owing to the registration provisions later on in the Bill, there will be many independent organisations of workers. These independent organisations of workers will in certain cases have closed shop agreements. They are conducive to good industrial relations, and they should not be upset.

TIE EARL OF DUDLEY

May I ask the noble and learned Lord one additional question, further to those asked by the noble Lord, Lord Diamond. If an unregistered organisation of workers was sued in the civil courts for breach of a collective agreement, would the penalties be greater, or less than, or commensurate with those which a trade union would suffer if it were to be taken before the Industrial Court in the event of a corn-plaint under the Bill?

THE LORD CHANCELLOR

I suppose that was intended for me, owing to the reference to learning with nobility. I hope it was, at any rate, because I do not think there is another noble and learned Lord in sight —the noble and learned Lord, Lord Stow Hill, is far more learned in some ways than I, but he is not learned in this House by designation. I could not, within the scope of this manuscript Amendment, answer at any great length to my noble friend. Broadly speaking, everybody who is sued —if sued is the right word —who is the respondent to a complaint for an unfair industrial practice, in so far as compensation is payable, pays the same measure of damages as anybody else, that is to say, the measure of damages is limited by the actual loss suffered by the complainant. For a registered trade union there is a ceiling. For unfair dismissal there is a ceiling, which puts an artificial top to that measure of damage. For an unregistered body this is not so.

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

9.28 p.m.

LORD DIAMOND

On Amendment No. 107, we have taken a careful note of the only material alteration, which I take it is that, whereas in the original

9.19 p.m.

On Question, Whether the said Amendment to the Amendment (No. 107A) shall be agreed to?

Their Lordships divided: Contents, 33; Not-Contents, 103.

drafting it was possible, or was laid down that it should be a condition that every such worker…must be or become a member of the trade union…", and in the redraft the words "must be" are left out and we have only to deal with the case of "becoming". I do not think that this is a substantial point; therefore we do not wish to delay the Committee on it. For the rest of it, we recognise that it is an improvement in the drafting.

On Question, Amendment agreed to.

9.30 p.m.

LORD DIAMOND moved Amendment No. 110: Page 13, line 29, leave out ("an order of the Industrial Court") and insert ("recommendations of the Commission on Industrial Relations").

The noble Lord said: We are still dealing with the principles of an approved closed shop agreement. One of the elements in the definition is that such an agreement is made in accordance with proposals approved by an order of the Industrial Court. The Amendment which I seek to move is that such an agreement should be approved on recommendations of the Commission on Industrial Relations. I am not claiming that this wording has everything to recommend it in terms of lucidity of expression or literary qualities, but it makes the position clear that we are suggesting two things: first, that the Industrial Court is not the appropriate body; secondly, that an order is not the appropriate method. Instead of an Industrial Court we should much prefer to see the Commission on Industrial Relations. Instead of an order of the Industrial Court we should much prefer to see: recommendations by the Commission on Industrial Relations".

I am sure that I have made it clear that what we are seeking to suggest is that the Bill will be improved if instead of reliance on a court and on an order of the court in an area where you are concerned with industrial relations, with relations between human beings it would be far better to rely on the wisdom, experience and knowledge of the Commission on Industrial Relations, and to rely not on an order by them, or compulsion by them, but on their patience and understanding and on recommendations which ensue from such patience and understanding. We think that would be a far better way of arriving at the same conclusion which the Bill seeks. I move.

THE LORD CHANCELLOR

This has a rather marked resemblance to some other Amendments which stand in the names of the same noble Lords. It raises a rather similar question, although here it arises in relation to Clause 16 and not in relation to some of the other clauses. It is based upon a misunderstanding of the constitutional position which we are trying to establish. The functions of the Commission are advisory and are intended to remain advisory. We think that this is for the advantage of industrial relations to the parties to any dispute that there may be and essential for the retention of the prestige of the Commission.

The functions of the court are judicial and, like all superior courts of record, include the function of recording a concluded decision which has been arrived at. I have been particularly careful to try to limit the functions of the court to things which are justiciable. The noble and learned Lord, Lord Gardiner, raised with me late last night a question of a rather different nature relating to the court. It is important to establish for the court that they have either to decide a disputed question of fact, when the nature of the question of fact is prescribed by the Act, or to apply a principle of law when the principle of law is enunciated by the Act. When there is something which requires negotiation, expertise and advice it goes to the Commission, and the Commission then report back to the Court.

The Commission's function therefore remains advisory. The Court, after hearing both sides of a case on justiciable principles, records a decision —in many cases, I hope, a decision which will he predetermined by the admitted facts of the case, but still a decision which is based on justiciable principles. This is all set out at great length in Schedule I to which we have not yet come. But in order to understand the context in which this Amendment is moved, we find that the policy of the Party opposite is to exclude the functions of the Court and our policy is to retain them, provided, of course. that it can be established that their functions are judicial and not executive or advisory, because it is not the business of the Court to be either executive or advisory.

In fact, the Court is designed to protect those who are subject to the new Act and to protect them in two ways. In some ways the Court stands in the shoes of the Secretary of State in the old Labour Bill which was given, I think, a First Reading before the General Election—at any rate, the old Labour Bill which was published before the General Election. Many functions which the Secretary of State could operate on his own authority are now subject to the scrutiny of the Court on the application either of the Secretary of State or of some other party that makes an application to them. Equally, the Court record decisions after argument based on reports reaching them from various sources, or evidence reaching them from various sources, which may be oral or written—oral or affidavit—and in particular reports from the Commission on Industrial Relations. This is a difference of policy between us, but we think that the function of the Commission on Industrial Relations should be advisory; and if this is accepted as its constitutional role it follows that this Amendment would fall.

9.37 p.m.

LORD BYERS

I wonder whether I might ask the noble and learned Lord for one point of guidance. I agree with him—and I think the Government are right here—that the Commission should be kept as an advisory body and the Court as a judicial body. The guidance I should like is on the following case. There have been a number of occasions when a particular union, for instance, the Musicians' Union, has taken action to force a person into a certain position. For instance, a professor of music has to decide whether he is going to join the Union, in which case he can play serious music with other professionals; but if he does that he cannot play with his own staff in the university where he is a professor because they are not members of the Union. Contrariwise, if he does not join the Union he is not allowed to play with serious orchestras. This is a case in point which occurred within the last two years. Is this the sort of case which would be dealt with by the Industrial Court in the circumstances of this clause, or is it better caught under Clause 63? If so, we will raise it when that clause is considered.

THE LORD CHANCELLOR

I do not think it would arise on this clause. This clause is really dealing with the circumstances in which a post-entry closed shop can be allowed as the result of an order of the Industrial Court, and as the noble Lord will see, reading the clause with the Schedule, there is first an application for which certain facts have to be established; there is then a reference. As a result of the reference there is a report; as a result of the report there may be an argument; and finally, as a result of the argument, or absence of argument, there may be an order. This deals only with post-entry closed shops because the policy of the Bill is to exclude pre-entry closed shops. But I think the noble Lord is right in certain circumstances—I do not want to name particular unions or to prejudge particular cases, for reasons which may be obvious. But where a question arises as to whether there has been an unfair industrial practice under the later clauses of the Bill, it may be discussable under Clause 63 but probably under the later clauses of the Bill even more discussable. We shall see that the Industrial Court has a function to determine whether an unfair industrial practice has taken place.

The general policy of the Bill (although I am now going outside what I really should be saying on this particular subject) is that, where an individual has a grievance, he goes in the first place to the industrial tribunal, with an appeal to the N.I.R.C.—the Court. Where an organised body has a grievance, it goes straight to the Industrial Court. This is not an absolute rule; it is like almost everything else one says—an oversimplification; but it is a rule of thumb.

LORD BROWN

May I just ask another question? In the case cited by the noble Lord, Lord Byers, would the union which indulged in that practice—which on the face of it appears to be unfair to the individual—be caught under Clause 63 if they had to register? Would they not be allowed to register as long as they maintained the condition to which the noble Lord, Lord Byers, referred?

THE LORD CHANCELLOR

Clause 63 is a subject in itself, and anyone who gives "off the cuff" legal opinions is apt to be proved wrong in the event, but my first impression is that Clause 63 probably does not catch them. Clause 63 really gives certain guide lines on how a union has to conduct its affairs or frame its rules if it wants to secure registration under the Act, as it will be, and the sort of thing is that the rules must provide against discrimination subject lo certain qualifications; unfair discrimination. It must give the member a right to terminate his membership. It must give him a fair and reasonable opportunity to cast his vote. If they want to discipline him they must give him notice of the charges, they must give him a fair hearing, they must send him a written statement, and finally they must give him a right of appeal. I could go on enumerating the various things in Clause 63, but I would not myself have thought that a situation such as that envisaged by the noble Lord, Lord Byers, would easily arise under Clause 63, although of course it can be discussed under that Clause.

LORD BROWN

The reason I ask the question was that reading subsection (7) it says No member of the organisation shall he subjected by or on behalf of the organisation to any unfair or unreasonable disciplinary action … and it goes on. Does that not catch the practice to which the noble Lord, Lord Byers, referred?

THE LORD CHANCELLOR

That will depend upon whether the action described is unfair or unreasonable. It would involve me in a particular judgment which I am anxious to avoid. The only thing I said to the noble Lord, Lord Byers, was that the problem which he posed about the Musicians' Union does not arise under this Amendment, but it certainly will be discussable at a later stage.

LORD SOMERS

Since the Musicians' Union has been mentioned, may I point out one or two facts concerning it? First, it cannot in any sense of the word be described as a "closed shop", in that there is no compulsion on any musician to belong to the union if he does not want to. The only thing is that if you happen to be an orchestral player, and you want to get a permanent position in one of the major orchestras, you will probably be asked to join. In that case, of course, you will have to obey the union rules, and I am not denying that the Musicians' Union has in some cases behaved in a rather high-handed manner. On the other hand one must remember the good things which they have done, which are many. They have obtained fair and reasonable payments for their members, and they have reduced rehearsal times, which used to he stretched to such a point by some conductors that it was absolutely impossible for the players to maintain their standards.

LORD BYERS

May I put it to the noble Lord that the Musicians' Union is not on trial? I was merely asking where in this Bill we could discuss the protection of individual rights in any union.

LORD DIAMOND

The noble Lord, Lord Byers, has had his answer: it is not on this Amendment. Perhaps therefore I could return to this Amendment, and the most interesting speech made by the noble and learned Lord. I do not know whether he will be gratified or not by what I am going to say. I do not think I differ in one word from what he said, namely that the Industrial Relations Commission is, under the Bill, given advisory functions, and ought only to be given advisory functions. I entirely agree. That proposal, that attitude, is based on the desire to help. I think the noble and learned Lord said that it is in the interests of good industrial relations. I agree.

He said that there is a philosophical difference between us. I agree. I cannot see why we should not, as the Amendment proposes, rely on the good offices, experience, advice and recommendations of the Commission on Industrial Relations, and why we need to have an order of the court at all on this very important issue of maintaining in appropriate cases a closed shop agreement. Therefore I can only say that the noble and learned Lord has helped us all by clarifying our minds as to the essential difference between us. We prefer advice, patience and persuasion. The noble and learned Lord prefers the order of the court. We do not think this is the way to deal with industrial relations.

9.47 p.m.

On Question, Whether the said Their Lordships divided: Contents, 34;

Amendment (No. 110) shall be agreed to?

CONTENTS
Archibald, L. Donaldson of Kingsbridge, L. Ritchie-Calder, L.
Ardwick, L. Durham, L. Bp. St. Davids, V.
Bernstein, L. Hoy, L. Serota, Bs.
Blyton, L. Hughes, L. Shepherd, L.
Brockway, L. Janner, L. Slater, L.
Brown, L. Kennet, L. Stow Hill, L.
Burntwood, L. Lee of Asheridge, Bs. Strabolgi, L. [Teller.]
Champion, L. Llewelyn-Davies of Hastoe, Bs. [Teller.] Taylor of Mansfield, L.
Chorley, L. Wells-Pestell, L.
Davies of Leek, L. Milner of Leeds, L. White, Bs.
Delacourt-Smith, L. Morris of Kenwood, L. Wynne-Jones, L.
Diamond, L. Popplewell, L.
NOT-CONTENTS
Aberdare, L. Drumalbyn, L. Merrivale, L.
Abinger, L. Dudley, E. Mersey, V.
Ailwyn, L. Dundee, E. Merthyr, L.
Allerton, L. Elliot of Harwood, Bs. Monck, V.
Balerno, L. Emmet of Amberley, Bs. Monk Bretton, L.
Balfour, E. Exeter, M. Mowbray and Stourton, L. [Teller.]
Balfour of Inchrye, L. Falkland, V.
Barrington, V. Ferrers, E. Moyne, L.
Bathurst, E. Ferrier, L. Napier and Ettrick, L.
Beauchamp, E. Fraser of Lonsdale, L Nelson of Stafford, L.
Beaumont of Whitley, L. Gage, V. Netherthorpe, L.
Belhaven and Stenton, L. Gisborough, L. Radnor, E.
Berkeley, Bs. Goschen, V. [Teller.] Rankeillour, L.
Blackburn, L. Bp. Gowrie, E. Redesdale, L.
Boston, L. Gray, L. Redmayne, L.
Bradford, E. Gridley, L. Ruthven of Freeland, Ly.
Bridgeman, V. Grimston of Westbury, L. St. Aldwyn, E.
Bristol, L. Bp. Hailsham of Saint Marylebone, L. (L. Chancellor.) St. Helens, L.
Brooke of Cumnor, L. St. Just, L.
Brooke of Ystradfellte, Bs. Hankey, L. St. Oswald, L.
Byers, L. Harvey of Tasburgh, L. Sandford, L.
Caldecote, V. Henley, L. Sandys, L.
Clifford of Chudleigh, L. Hives, L. Somers, L.
Clitheroe, L. Hood, V. Strange, L.
Colville of Culross, V. Jellicoe, E. (L. Privy Seal.) Stratheden and Campbell, L.
Conesford, L. Kemsley, V. Swaythling, L.
Cowley, E. Killearn, L. Teviot, L.
Craigavon, V. Kilmany, L. Thomas, L.
Cranbrook, E. Kinnoull, E. Thurlow, L.
Crathorne, L. Lansdowne, M. Thurso, V.
Crawshaw, L. Latymer, L. Tweedsmuir, L.
Croft, L. Lauderdale, E. Tweedsmuir of Belhelvie, Bs.
Cromartie, E. Lloyd, L. Verulam, E.
Daventry, V. Lothian, M. Vivian, L.
De Clifford, L. Luke, L. Wigram, L.
Derwent, L. Mansfield, E. Windlesham, L.
Digby, L. Massereene and Ferrard, V. Yarborough, E.

Resolved in the negative, and Amendment disagreed to accordingly.

9.56 p.m.

LORD DIAMOND moved Amendment No. 113: Page 13, line 34, leave out ("notwithstanding") and insert ("in place of").

The noble Lord said: I beg to move Amendment No. 113, to leave out "notwithstanding" and insert "in place of",

Their Lordships divided: Contents, 34;Not-Contentents,180.

and I do not intend to delay your Lordships for more than a moment on this. Your Lordships will appreciate that Clause 16(2) provides that Where an approved closed shop agreement is for the time being in force, the following provisions of this section shall have effect notwithstanding anything in section 5(1)(b) of this Act".

Clause 5(1)(b) is the clause which provides the right of an individual to be a member of no union. I hope none of your Lordships thinks I am being facetious when I say that it provides that right; that is, in fact, the right it does provide. It is frequently referred to as the right not to be a member of a union. The right is in fact in Clause 5(1)(b), and for the sake of greater accuracy perhaps I could read it: …if he so desires to be a member of no trade union … a curious description; language which the draftsman has to use in order to make clear a very curious attitude of a curious Government creating a most curious nonexistent right. However, that is referred to under Clause 16(2) and relates to the Amendment which I am now putting. Because of that I think it would be far better, notwithstanding anything in Clause 5(1)(b) of this Bill, to have the words "in place of". It is clearer and more easily understood. I beg to move.

LORD DRUMALBYN

I suppose it would be facetious to refer to the preference of the Party opposite for the words "in place of". We should just like to have a look at this Amendment to see that there is really not any difference in that. If the noble Lord would be good enough to withdraw the Amendment, we will have a look at it.

LORD DIAMOND

I am very grateful. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.0 p.m.

LORD ARCHIBALD moved Amendment No. 113A: Page 13, line 34, after ("5(1)(b)") insert ("or 6").

The noble Lord said: In rising to move this Amendment, I have to confess that I shall not be quite as brief as I usually am on Amendments of this kind. I also admit that, not being a lawyer, I find it quite difficult to line up the technicalities of the Amendment with the substance of what we are seeking to do.

I would start by saying that I think this is an Amendment of very great substance and importance. The purpose of the Amendment is to establish or, if you like, to make it clear, that a closed shop agreement may be approved even if it contains elements which technically constitute a pre—entry closed shop. In other words what, on an earlier occasion, I called neither a pre—entry, nor a post—entry, but a point of entry closed shop.

There was considerable reference during last Thursday's debate to the position of Equity in this connection. My noble friend Lady White said that Equity was asking to be allowed to operate a pre-entry closed shop, while the noble and learned Lord the Lord Chancellor claimed to have information that Equity required no such thing. The noble and learned Lord said that the object of Clause 16 was to provide for a post-entry closed shop to enable Equity to do what they have been doing. My argument is that this would not allow Equity and the employers' association to do what in fact they have been doing in the past.

Equity's position is that it has never sought agreement, nor enforced conditions which it believed to amount to a pre-entry closed shop of the kind which was criticised by the noble Lord, Lord Drumalbyn, last Thursday. But Equity has been advised, and this is really the important point here, on high legal authority, that its casting agreements with the employers in the entertainment industry —which Equity and many of the employers also (for example, the Theatres Advisory Council, the Council of Repertory Theatres, the Film Producers' Association) all regard as of critical importance —constitute technically pre-entry or point of entry closed shops, while no practical alternative method has been found so far in the Bill to achieve the same necessary object.

I have said that the casting agreements are really the essential elements in this. The need for casting agreements arises from a variety of facts. First, there is the impossibility of defining a qualification for entry into the theatrical profession, whether it be the theatre or cinematograph, such as exists in the case of lawyers, doctors, accountants, et cetera. There is no qualification, except the offer of a professional engagement by an employer. Secondly, there is the fact that the profession is enormously overcrowded, and employment in it is in any event so casual that there is a very high incidence of unemployment and actual hardship among established and dedicated professional performers.

I have just heard this evening of a lady, a highly professional performer, who is only in her fifties, who has not, in periods of employment, lived at the high level of luxury, but even so whose employment has been so intermittent that she is now faced with the possibility, in fact the probability, of being made bankrupt by the Inland Revenue because she is unable, at her present period of what is in effect non-earning, to pay the tax on previous periods —even though short periods —of fairly high earnings. I mention that only to indicate the importance of having some protection in the theatrical field.

The profession is a glamour one, which is probably one of its greatest evils, because it has an inherent attraction which is so great that there are literally thousands of people seeking to enter it, who would almost ask for no conditions at all to get a foot inside the door. In these circumstances, the purpose of the casting agreements is not only to create some kind of security for the dedicated professional, but also to maintain and improve the standards of performance by trying to secure that established performers are not driven out of the profession by lack of opportunity and, on the contrary, are given the opportunity to work more regularly.

In essence, the casting agreements are agreements by the employers that they will not bring newcomers into the profession except when it is necessary to do so. The agreements vary in detail between, for example, the film producers and the different sections of theatrical employers, but they all contain two basic principles. The first is that the employer will not offer an engagement to a newcomer unless he has satisfied himself that there is no existing professional available to do the part in question. Before offering an opportunity to a newcomer the employer undertakes to give Equity the opportunity of making representations on this point, but no more than that. The second principle is that whatever may be the strength of Equity's objection in any given case, the last word is left with the employer. Equity does not lay down a hard and fast rule. It may make representations, but the last word rests with the employer.

Each agreement contains, in one form or another, a provision such as that in the film industry casting agreement, which states: if the company and Equity are not in agreement, the company shall nevertheless have the right to proceed with and complete the engagement. I cannot think of any agreement between employers and employees which could be fairer, more reasonable and more liberal than that. In these circumstances, if the employer proceeds with and completes the engagement, Equity undertakes to accept the newcomer into membership. It may well be argued that the casting agreements have no teeth in them. But they work, and that is what matters. Although they are such gentlemanly agreement, the relationship between Actors' Equity and the employers is such that these toothless agreements work. It would be a great pity, if we are to have any regard to industrial harmony, to upset such gentle and gentlemanly agreements which work at present, and which if upset by the Bill may produce chaos in a very good industry.

There is no professional qualification which can be defined for entry into the theatrical profession. Equity for many years has had 100 per cent. membership on what I prefer to call a point of entry basis. The only criterion which it has been found practicable to apply in determining whether a person is a newcomer or not, is whether that person is already a member of Equity. This is where the element of technical pre-entry, point of entry or post-entry closed shop comes in. From what I have said, I think it must be apparent that the union cannot alone exclude anyone whom an employer, having gone through the agreed consultations, wishes to employ. So there is no absolute right, in fact no claim of right, on the part of Equity to exclude anyone. The agreements do not deny anyone employment because he is not a member of the union. If a person is excluded it is not only because he is a newcomer and not only because there is no room for him in an overcrowded business. There is no overriding reason causing the employer to exercise his rights under the casting agreement to carry on with the engagement in spite of an adverse representation from Equity.

In the subsidised repertory theatre, for which perhaps we have more responsibility titan in some of the other fields, there is a rather different agreement. Here the theatre managers have agreed that the collective intake of newcomers should be reduced in the interests both of employment and of standards. They have accepted a quota of a given number of newcomers a year; and the managers, not Equity, decide among themselves into which theatres these newcomers shall go. Here, again, the definition of a newcomer is a person not yet a member of Equity. I do not think that anything could be fairer. In connection with that definition of a newcomer, it should be added that in the relatively rare case of a performer being in fact experienced and therefore not a newcomer but yet not a member of Equity because his previous work has laid outside their jurisdiction (for example he may have been working in the Commonwealth), there is no inhibition to his engagement.

Other examples of those who will not, cannot and never have been excluded are: child performers, who obviously would not be existing members of Equity (these are child performers up to the age of 16); and concert singers who have previously worked outside the theatre, for films and so on. Evidence of previous professional experience is sufficient by itself to ensure that in the spirit in which the casting agreements were made the union raises no objection and has never raised any objection in such case.

Since this Bill was introduced, much consideration has been given to finding some alternative method, even some alternative phraseology, which might reduce the danger that these casting agreements will be rendered void because of the technical element which they contain of what is called a pre-entry closed shop. In fact, there are no alternatives which are not either (a) unworkable in practice or (b) equally in danger under the Bill. One of the problems here is the speed with which engagements have to be offered and accented in the theatre, in films and on television, and therefore agreements of this kind can work only if there is an immediate way of establishing, as between the employer and the union, whether the person seeking an engagement or to whom the employer wishes to offer one is a newcomer or not. That, of course, is the possession of an Equity card. But, as I have said, Equity is entirely realistic and effective because of the arrangements which have persisted and worked so well for so long.

It has been suggested that other alternatives might be the consideration of individual cases by joint committees. That is quite impracticable because of the element to which I have just referred—the need for speed. Engagement may be offered to-day for employment to start next Monday, and there is not really time for consultative committees to go into the case and make a decision. I do not know whether this applies to other unions, but, in the case of Equity, what this Amendment seeks is to preserve the possibility of controlling, jointly with the employers, entry into a greatly overcrowded profession by methods which are both effective and flexible in operation, as they need to be in a fluid and creative industry. It would be a tragedy if these attempts, already showing some success, to give some small protection to a profession which is as vulnerable as it is dedicated, should be destroyed by what is really a legal technicality and not a matter of substance so far as the purposes of this Bill are concerned. I hope that the Minister who is to reply—and I hope it will be the noble Lord, Lord Drumalbyn —will give this the sympathetic consideration which he normally would give to an Amendment of this type. I beg to Move.

10.17 p.m.

BARONESS LEE OF ASHERIDGE

Have I detected a certain consternation on the face of certain Members of your Lordships' Committee as my noble friend Lord Archibald has conducted us with such skill and such thoroughness through the mazes of this particular understanding between Equity and theatre employers? That is not surprising. If a foreigner wanted a definition of typical British compromise, I do not think he could do better than to read Lord Archibald's speech; but, in effect, what he has been pleading for is that we should leave well alone. It may not sound logical, it certainly does not sound simple, but it works. We have to remember that if we were living in an authoritarian society we would not have to tie ourselves in knots and do somersaults in order to try to make the impossible possible. If we were living in authoritarian society, there would be a careful measurement of the intake of recruits into the theatrical profession and the needs of the community. But we do not have that kind of measurement. We do not want that kind of measurement. We do not want to be living in an authoritarian society, but at the same time we must all be concerned about the tidal wave of young hopefuls seeking to make their way in what, as Lord Archibald said, is a profession with a great deal of glamour. Those who think it is an "easy ride" are soon weeded out—there is no place for them there. Those who survive have to accept immense discipline.

I sometimes think that our best artists are the saints of the modern world, for the discipline needed to become a really great ballet dancer or opera singer, to reach the heights in theatre work of any kind, has to be seen at close quarters to be fully appreciated. Survival represents a fantastic struggle, and we shall never know the talent we lose because of economic pressures and the inability to sustain one period after another of unemployment. But if, in spite of everything, there are some who are prepared to tackle this obstacle race with all its difficulties, disappointments and hardships, and manage to establish themselves as dedicated and gifted performers, we must do something, however illogical and tortuous the process might be, to protect them.

Those of us who have talked with representatives of Equity and of the theatre managers have not been able to think of anything better than the status quo; so I hope that the whole spirit of this debate, like that of an earlier one, will be not to raise sharp controversy between the two sides of your Lordships' House but to see what can be done to keep talent in the profession with hope, and reasonable hope,of employment. After all, they have given us the most vital and wonderful theatre in the world, and we must do something to protect them. We cannot do much, but I hope we may at least co-operate so as not to take away.the present provisions which, however extraordinary they may seem, actually work.

LORD STRABOLGI

I should like to support everything that my noble friends, Lord Archibald and Baroness Lee, have said. They speak from a great wealth of experience. The noble Lord, Lord Drumalbyn, said that the Government were entering into talks with Equity. One hopes that as they learn more about the situation they will realise the great importance of the splendid work done by Equity and how essential it is that this organisation should be strong. I should like to mention just two points which have not been covered before. The first is that one of the great things done by Equity is to maintain standards of performance in the theatrical profession, which is very important in this permissive age. It is one reason why 100 per cent. membership is essential in order to achieve the necessary control over performers. The other thing is the splendid work they do in vetting dubious contracts, and. particularly dubious overseas contracts, together with the great work they do in dissuading young girls from entering into engagements of a kind which could put them in great moral danger. If the Government weaken this organisation, for what they describe as their philosophical reasons, they will put that many more young girls into danger.

10.25 p.m.

LORD DONALDSON OF KINGSBRIDGE

My noble friend, Lady Lee of Asheridge, gave me an opening by speaking about opera singers. I think I may state without fear of contradiction that the two major opera houses in London are entirely satisfied with the closed shop arrangement they operate with Equity, and would find it very difficult to operate in any other way. My noble friend, Lord Archibald, has described the situation with great precision as the "point-of-entry closed shop".

If you are a singer and you wish to get in the chorus at Covent Garden or the Coliseum, you go for an audition. Anyone may go for an audition, and a lot of people do go. If you are accepted as a suitable person, you join Equity. This is the point-of-entry closed shop. It is worth mentioning that there are something like 600—that was the figure a year ago; it may now be 650—full-time careers available for people in serious singing in this country. The number is very small, but it is a hundred times more than twenty years ago, which is a marvellous development, and it is very important that we should not start pulling about this rather subtle arrangement. The problems of the acting profession are much more difficult, but I wanted to put on record that from the point of view of major employers of operatic singers the present system works extremely well and we should deeply regret any change.

LORD BERNSTEIN

I wish to support the Amendment. My noble friend, Lord Archibald, made a clear-cut case. I am not sure whether it was a case of English understatement, but it had support from a Glasgow lad and a Glasgow lass—

BARONESS LEE OF ASHERIDGE

Not Glasgow—Edinburgh.

LORD BERNSTEIN

I stand corrected. My noble friend, Lord Donaldson of Kingsbridge, commented on his experiences in the opera houses. I can speak with experience of other areas of entertainment. Equity has functioned in the best interests of the theatre, films and also radio. It has also functioned in the best interests of television since the B.B.C. transmitted its first programme from Alexandra Palace. I would say to The Minister, "Do not overlook radio, because you have just introduced a White Paper and when you have commercial radio you will need all the help you can get from Equity." I wish the Government would accept the view expressed by the noble Lord, Lord Archibald. It is the view of everyone in management. Perhaps later the noble Lord, Lord Windlesham, will give us the benefit of his experience with Equity.

Equity has been a help to everyone in the acting profession. I speak from experience extending over forty years. To me it is inconceivable that anybody would wish to add to the problems connected with this Bill by not allowing actors and actresses to have the benefit of the support of Equity. Artists have a 100 per cent. membership on a pre-post entry basis. Equity has had to deal with special situations. The noble Baroness, Lady Lee of Asheridge, referred to the unemployment problem. In the last ten years the number of repertory companies in the country has gone down from 232 to 84. In the last two years the number of Cinema and Television films made has gone down from 94 to 58. The number employed has been reduced from 2,500 to 1,500. Between 1948 and 1969 the number of members of Equity increased from 9,000 to 19,000 which does not suggest that Equity was trying to keep people out. There are problems for Equity, caused by overstaffing and under-employed yet Equity has never been involved in unfair industrial practices during all the years that I have known them.

There have been no battles with responsible management over the entry of new discoveries, whether glamour girls, or glamour stars, or the young boy who got into trouble at school. As was said by the noble Lord, Lord Archibald, the present system works, and he told the Committee how it worked, if an artist has not an Equity ticket, Equity is asked to give one. If there is another artist available of equal quality, Equity will put forward a case for that artist; but the casting director or the film director, or the producer have the final say in the matter. Why upset an arrangement which has worked for years so satisfactorily? Is it being done to satisfy a doctrinaire approach? A legal approach? How unconservative can Conservatives be? I asked the Minister earlier whether he would meet Equity. Would it be a good idea for the Equity lawyers to meet the drafting lawyers, and for the Government to instruct the drafting lawyers to produce a clause which would satisfy them, satisfy people in television, in films, in radio, management and Equity? I hope the Government will accept the Amendment.

10.31 p.m.

THE EARL OF MANSFIELD

It may come as a considerable surprise and shock to noble Lords on the Benches opposite to find that on this occasion my sympathies are wholly with the noble Lord, Lord Archibald. I myself have no personal experience of acting. I have never wanted to act, and I have never had the slightest reason to believe that I should have any talent at it. But I have been, ever since it was founded, patron and president of the Pitlochry Festival Theatre, and therefore I have learnt a little about some of the problems of this—as has already been stated by practically every speaker sadly overcrowded profession. When the Pitlochry Festival Theatre sets out to get a new cast each year—and there are usually only one or two of the old cast remaining—for that cast, usually of somewhere between 20 and 25 people, you have applications from between 6,000 and 8,000. It is not just owing to the fact that there is now a very considerable cachet for anyone who is taken on by Pitlochry, a theatre which has worked up a very great reputation for itself, it is also an indication of how desperately badly needed work is for so many of the theatrical profession.

I do not think it has been sufficiently stressed by noble Lords and Ladies opposite that this is the one skilled profession into which, if one is not careful, the enthusiastic but untalented aspirant can gatecrash. We know how in the past young ladies of undoubtedly considerable physical attractions, but a mediocre capacity for acting, have suddenly appeared as leading ladies, and the reasons for that I think have been obvious to anyone. But we are also in a position where you get stag-struck people of either sex, who, just because they want to strut on the boards, never mind if they make an exhibition of themselves; the mere fact that they are there makes them happy. In this case they are willing, some of them having private means, to take reduced salaries, no salary at all, or even to make a sub rosa payment to the management of a theatre engaging them. That means that there could be the risk of these really talented performers being kept out by people who were utterly and completely sticks on the stage.

I think everyone will agree that it is vitally necessary that our living theatre should survive. It means a great deal more to us, and has meant over the centuries, than do nowadays the posturings of overpaid, overexposed and under-talented persons on the cinematograph screen. If we are going to retain this wonderful living theatre of ours, something ought to be done to ensure that the real professionals, who have given to us all the pleasure they have given me over more than half a century, should continue to survive and to enjoy reasonable conditions of life, and the possibility of reasonable salaries. For that reason I support the noble Lord, Lord Archibald.

LORD GARDINER

May I just say one word in support of my noble friend Lord Archibald and other noble Lords who have spoken? I do not remember a time when I was not interested in the theatre, and all my life I have been concerned with the development of Equity and what it has done. I think I am one of the few who are not members of Equity in the theatre who all my life has had my Equity letter.

I think that there is no country which has a better theatre than this country. The first thing that every tourist, including Americans, wants to do is to see the London theatre. Equity is as highly regarded among employers as it is among its own members. It is a unique profession, for the reasons mentioned. I think I am right in saying that the average remuneration of male members is £800 a year and of women members, £450 a year. A great deal in the theatre depends on Equity. I know it does not fit into the Bill. The question is whether the Government will save it or not. If they want to save Equity, it is really a question of saying to their draftsmen, "We have taken a decision to save Equity and keep it as it is. See what the necessary Amendments are."

10.37 p.m.

LORD DRUMALBYN

This has been an extremely interesting debate and I cannot say that it has been all one-sided. I think your Lordships would expect me to indicate that there are certain counterpoises in this matter. It is only fair to indicate to the Committee exactly what is being asked in this Amendment. If I may say so, the noble and learned Lord, Lord Gardiner, put the matter more in perspective in his last remarks than had been done before. What the Amendment does, taken at its face value, is to remove what we regard as one of the main pillars of the Bill in order to accommodate this one industry. I have to put this quite brutally and frankly. That is what the Amendment seeks to do. The noble and learned Lord and other noble Lords have said that this is necessary to save the industry and to save Equity. I must acknowledge straight away that what has been said about Equity is absolutely true. It does a very fine job. I know out of my own personal experience that what the noble Lord, Lord Strabolgi, for example, said about maintaining standards of performance and vetting dubious contracts is right. But to go on from that to postulate that no change can be made in Equity and everybody else must come into step, is a long move to take.

I must start from that point of view. It has: been argued that entry into the theatrical profession can be regulated only on a basis of union membership; that the profession can be distinguished from almost all other employments because of the constant and unremitting clamour for admission. If I understood the argument of the noble Lord, Lord Archibald, there is really no closed shop, but unfortunately Equity is caught by a technicality. That is the argument, as I understand it. It is necessary to change this basic part of the Bill in order to meet a technicality for one particular industry. I accept the need in the entertainment world to regulate entry to protect established workers and to safeguard reasonable standards and conditions of employment for those already in the industry, but I find it much more difficult to agree that the only way to deal with this problem is by permitting a pre-entry closed shop, by requiring workers to be members of Equity before they accept or can be offered employment in the industry. The Bill will not prevent unions from making agreements with employers about qualifications, skill, experience or the like, for employment in particular occupations. It has been suggested that there is no sort of test that can be applied. I think that this is what the noble Lord, Lord Archibald, said in respect of those seeking work in the acting profession. If that were so, one must wonder how anyone ever enters the industry. If the condition of entry is union membership, and there is no test for deciding who should be granted membership, and thus entry into the industry, we must ask on what basis anyone gets into the industry.

LORD ARCHIBALD

I am sorry to interrupt the noble Lord—

LORD DRUMALBYN

Perhaps the noble Lord will allow me to develop the argument. I have listened patiently to what has been said, and the argument here is important. The answer is that there are tests which are applied to the granting of union membership, and thus to entry. In the West End theatres, for example, the casting agreement provides that an actor cannot be accepted for a job unless he is a full member of Equity. But the qualification for full membership of Equity is, I understand, 40 weeks' experience in the theatre. That test can easily be applied without the requirement for an actor to be a member of Equity, and so bring it within the technicality which the noble Lord says justifies this Amendment.

Similar agreements to these have been made with provincial managements. Under the casting agreements made with managers in repertory, the managers have agreed not to offer engagements to any person not a member of Equity in excess of what is known as the quota. This quota in the case of non-subsidised repertory is 50 artists per year, I understand, and in the case of subsidised repertory it is 130 artists a year. These agreements permit a certain number of newcomers to gain professional experience, but their main purpose is to ensure that the greater proportion of repertory casts already have acting experience.

Again, I wish to make the point that the test of whether an applicant for engagement already has such experience need not he membership of Equity. There is no need for the pre-entry membership condition. The qualification for engagement is prior experience, and this can be ascertained by some method which does not involve membership of the trade union. Casting agreements in the theatres are based, as the noble Lord, Lord Archibald, acknowledges, on restricting the entry of newcomers; that is to say, those without experience. It is not, or at least need not be, essential to establish who is the newcomer to determine whether or not he is a member of Equity. The Government therefore are not convinced on the evidence produced by Equity that it is essential for the theatre agreements to require as a pre-condition for engagement membership in Equity. Nor are the Government convinced that it is not practicable to find some other means of determining who is a newcomer than the evidence of Equity for membership.

These are the problems here. At the present time, we see no justification for any Amendment to permit the continued operation of pre-entry closed shop agreements because of the particular case. For that reason, and because we do not believe that it is as impossible as the noble Lord, Lord Archibald, says to find other tests, I must ask your Lordships to reject this Amendment.

LORD ARCHIBALD

The noble Lord seems to me to have stood the argument on its head. There is no pre-entry condition for a new entrant into the profession to be a member of Equity. My own experience is particularly in the film production industry. If the noble Lord, Lord Drumalbyn, was a film producer and wanted to start a film next week, and had the admirable idea of casting my noble friend Lady Lee as his leading artist, he would go to Equity to agree that she was the most suitable person to play the part. If they put up a reasonable case—and I know how reasonable the people in Equity are—they would say, "Of course; this is an obviously suitable choice. You have the engagement, and we give her the Equity card". There is no pre-condition that the noble Baroness should be a member of Equity. If the producer (and I am casting the noble Lord. Lord Drumalbyn, in that part) and Equity agree that the noble Baroness is the right person to play the part, she automatically gets her Equity card. The fact that she is a newcomer is established by the fact that she has not previously held an Equity card.

In many years' experience of the film production industry, I have never known the Equity people to say "No" to any reasonable request for a newcomer to be given an engagement and automatically to be given an Equity card. That is why I have tried to make the point that it is not a pre-entry or post-entry but a point-of-entry condition which we are seeking to establish. I had hoped for a much more sympathetic reply from the noble Lord, but I feel that on this occasion he has stood the argument upside down on its head.

THE EARL OF DUDLEY

It is quite clear from what the noble Lord, Lord Archibald, says that Equity are performing in this respect a recruitment function rather than an entry control function. Noble Lords might be well advised to consider this point, because if his assurances are correct the entry control function to which we on this side of the House object is not being exercised here, but it is a recruitment function, which is far less objectionable.

THE EARL OF BALFOUR

I was very interested in everything said by the noble Lord, Lord Archibald. But in his Amendment 113A he has suggested the addition of the whole of Clause 6. May I refer him to subsection (2) of Clause 6, which says that Clause 6 shall not apply to Clause 16? Therefore is it necessary to move this Amendment?

LORD DRUMALBYN

I pointed out at an earlier stage that the effect of subsection (2) of Clause 6 was purely declaratory, because closed shop agreements could not possibly contain any pre-entry condition under this Bill. The argument of the noble Lord is that the arrangements in Equity are not pre-entry closed shop arrangements; therefore let us amend the pre-entry closed shop arrangements. That seems the most absurd logic I have heard. I quite understand when he says-and no doubt he has had legal advice—that although they are not pre-entry closed shop agreements they may be marginally caught. If that is so, either Equity, or the drafters of the Bill, can move on this matter. What I think is quite improper is that the noble Lord, on behalf of Equity, should come along to Parliament and say. "It is the Government that must move on this and chance the Bill."

If the suggestion had been that we might reach some kind of compromise on this point and that it would be possible to preserve, as we must, the banning of the pre-entry closed shop and retain Clause 6 substantially in its present form, applying universally, then we should have been glad to get together with Equity to see hew far we could reach something which would, as the noble Lord put it, save Equity. I think that would be the sensible way to do it. But I return to this point: that it is odd that the noble Lord should come along with the argument."This is not really pre-entry closed shop at all, so will you please change your requirements for pre-entry closed shop?" I think he will appreciate the force of that argument. He accuses us of turning the argument on its head, but he is, as we say in Scotland, bowling it round and round.

10.51 p.m.

BARONESS WHITE

We are all deeply disappointed to-night in the attitude taken by the noble Lord because, as he has rightly said, this has been a one-sided argument, and really he is the only one out of step. We had a carefully argued case put forward by my noble friend Lord Archibald, and it was powerfully supported by noble Lords on both sides of the Committee. We were particularly glad t,) receive the support of the noble Earl, Lord Mansfield, on this occasion; we do not very often have it, as he correctly said. We were very glad indeed to have his support, especially with the close personal interest and knowledge he plainly has in theatrical matters. The others who have spoken—my noble friends Lady Lee of Asheridge, Lord Donaldson of Kingsbridge, and Lord Bernstein—all have a great personal experience in this field.

There is a very real problem here. I do not pretend for one moment that it is easy. When we were discussing Clause 6 on an earlier occasion the noble and learned Lord the Lord Chancellor, with one of those gestures of the hand, suggested that I was entirely wrong in my attitude on Clause 6. Equity told me I was entirely right. I pointed out in our earlier discussion that I believed something on the lines we were discussing on Clause 6 was necessary for Equity, because they had been given high legal advice, so they assured us, that technically their casting arrangements could be caught under the provisions of Clause 6 as having an element of pre-ntry closed shop about them. They were certainly of that opinion, whatever the noble and learned Lord the Lord Chancellor thought they were advancing.

The Equity situation is a most unusual one. For the noble Lord, Lord Drumalbyn, to say, "We cannot do this because this is just one industry" is not satisfactory. Clause 16—let us face it—was put in by the Government largely for the sake of two unions: Equity and the National Union of Seamen. If they can do that, they should in logic try to go a little further and benefit from their own benevolence towards Equity, and try to make sure that what they are doing by having put in Clause 16 is not now to be frustrated by not being prepared to find some way of meeting the problem that my noble friend Lord Archibald put so clearly and succinctly.

It is a point of entry closed shop—ot pre-entry. It is also post-entry of course, but it is at the point of entry that one becomes, and has to become, a member of Equity. The noble Lord seems to suppose that one could manage it by some other method. All I can say is that we have had discussions with representatives of Equity at the highest level, and they assure us they have looked at what they thought might be possible methods of determining who was a newcomer. But all the time, as my noble friend Lord Archibald said, they are up against the difficulty of the time factor. Anybody who knows anything about theatrical production or the film industry knows that one is constantly in a situation where very rapid decisions have to be made about who is to be cast for a particular part. All kinds of things can happen. You think someone is going to be available and then you find it is not so—he or she has been taken ill, or whatever. Speed is absolutely of the essence.

The great value of the arrangements which have subsisted hitherto is that one had a straightforward test: has the person an Equity card? If he or she has, then we know just where we stand. If they have not we know equally well where we stand, that they are to be regarded as newcomers. It is for these practical reasons that the Equity arrangement has worked so well. Everybody knows where they are. The employers know where they are; they know who it is they are proposing to engage, an Equity member or a newcomer, as the case may be. If it is an Equity member there is no problem; if it is a newcomer they go through the normal procedure and Equity can make recommendations, either approving or, if they feel that one of their own members is suitable, putting him forward. But as the noble Lord, Lord Archibald, made quite plain, the last word lies with the employer and therefore it is not a complete free entry closed shop; it is a point of entry closed shop.

It does not lie with a particular organisation to instruct Parliament how to draft an Amendment; it is for the organisation to bring forward the point for consideration, but it is the duty of the Government to find a way of meeting a point if they recognise it to be valid. What are we here for? We are legislators, we are not actors some of us are actors, too, of course, but we are basically legislators and it is our job, if we agree that there is a fair point, to find a way, and more particularly it is the job of the Government. For this reason, I hope very much that my noble friend will persist with this Amendment.

LORD BEAUMONT OF WHITLEY

The noble Lord, Lord Davies of Leek, has spoken of Liberal arrogance. I am now going to produce an example of Liberal arrogance because I do not think we have yet got to the right principle in this clause, and I do not think that even the Government have done so. The question is not just in regard to Equity as such. Far less is it what the noble Baroness, Lady Lee of Asheridge, said, that we must find a solution to Equity however tortuous it may be. What we have to do is to find a way within the framework of this Bill to produce provisions for those unions and those professions who need to have special provisions made for them, whether they are Equity or any other.

In this case Equity is very important, because it is the exception which proves the rule, and at least in one learned Chamber like this—and I hope I see the noble Lord, Lord Conesford, nodding—I do not have to point out to your Lordships what an exception that proves the rule does: it tests. It does not have to prove that the rule is good, but it tests what has been said so persuasively by noble Lords on these Benches and on the Benches opposite. It tests the kinds of rules that the Government have vested in this Bill. But having tested it and, I think, probably found it wanting in this respect, we have got to find rules and exceptions which will fit into the framework of the Bill as a whole.

The Government, I think rightly, started off by trying to ban all closed shops and went on to find certain exceptions. There are obviously a number of noble Lords and Ladies on this side who have spoken who do not agree with that, but this Bill is going through with this idea behind it. What we have to try to do is to find the way within this Bill for Equity and for any other union which may find itself in the, same position, because I think there will be others. I think we have to produce Amendments to this Bill which will produce a closed shop which is enforceable by the union against the employers, with the permission of the Commission on Industrial Relations. Obviously you have to have a judge on this, but equally, in these circumstances you have to have a situation where the union can say that if it is in the public interest the employers as well as the unions should be bound to a particular agreement. That is one point we have to get through and it does not seem to me to be impossible.

There are certain Amendments put down by the noble Lord, Lord Archibald, which go a long way to meet this situation. They may not be faultless, but we have another two stages of this Bill to improve them. We have to find the way to control entry to a profession, any profession. May I suggest that this is a matter which concerns not only Equity. This problem has not been faced at all. It has been raised two or three times in the debate on various Amendments but it has not been faced at all, and we have to work out ways in which, in professions like Equity—and I should like to reiterate that this concerns not only Equity —we can find a way which does not derogate from individual rights but which will control entry into the professions in situations like this.

Thirdly, we have to produce Amendments which are not in the Bill at the moment so far as I can see: the abuses which have been suspected of closed shops in the past (and I do not think probably only of Equity), whereby someone's union card and, therefore, their right to earn their living, can be removed for some reason which is not, in the view of everyone, adequate. We have to have safeguards against this happening. The fact that this is not in the Bill at the moment—and I do not think it is—is due to the fact that Clause 16 came in at a later stage and the Government have not yet had a chance to amend it. But that has to go in, too.

I have probably missed one or two of the other points which must be met, but I should like to go back—I am sorry if I have not managed to comprehend the whole problem in spite of the liberality which I have portrayed, but I think this is the way to approach it—to find within the logic of the Government's own rules how we can make a way for Equity and other unions which may have the same problems within this framework. If the Government will say that they have sympathy with this and will work hard to find a way to deal with it, they will not build up the tremendous resentment which they would otherwise build up amongst us who have such enormous sympathy with Equity.

THE LORD BISHOP OF DURHAM

I rise to support the noble Lord, Lord Beaumont of Whitley. I knew very little about Equity half an hour ago, but I have learned a good deal since then. I can sympathise with the noble Lord, Lord Drumalbyn, when he says that the way to provide for Equity is not to have a back references to Clause 6. I take that point, but I hope he might feel able to give some undertaking that exceptional groups such as Equity, and perhaps others, may find some way of being provided for in the Bill ultimately.

11.0 p.m.

LORD DRUMALBYN

One is always in the difficulty that when an Amendment comes along one has to deal with that particular Amendment. It is on the Amendment that one votes if one does vote. Of course, one can consider the idea behind the Amendment, but when it comes to the crunch—if that is the right word—one has to deal with the Amendment.

I am sorry to say that we cannot accept this Amendment as it is, but perhaps I could just say that we shall continue to look very carefully to see if we can find a way round it. We doubt whether we shall be able to do so, but I can tell your Lordships that if some of the dire prophecies that have been made this evening about the effects of legislation on industrial relations in the theatre are even partially fulfilled, the Government will certainly he ready to consider whether some special even statutory provisions should be made to meet the problems which it is suggested may arise. The Government do not believe they will arise.

The Secretary of State has given very careful and lengthy consideration to the many representations made to the Department of Employment by Equity, and as a result the Government have included in the Bill Clause 16 and Schedule 1. If, contrary to our expectations, these concessions are found not to go far enough, well then, let experience of the operation of the Bill decide whether a further special solution is necessary. The noble Lord has got to face the fact that it is very difficult to draft for exceptions; it is very difficult to give a privilege to a particular unit, a particular organisation, a particular industry; we have had some experience of this in the past and it has rarely worked.

These are real problems. I would only give the utmost assurance to your Lordships. Your Lordships know how much attention has been given to this problem; there have been many discussions with Equity. The good will that we have towards Equity has already been shown by this. All I am saying is that we do not think it is right to discard, even in the case of closed shop agreements, this main pillar of the Bill, which might affect not only Equity, it might affect much less appropriate organisations that got through. That being so, I hope that the Committee will reject this Amendment, simply because, as I have previously emphasised, with Equity we are not really dealing with a pre—entry closed shop. As the noble Lord, Lord Archibald, has said, this is a technicality. We hope the technicality will be resolved before the Bill goes through. Even if it is not resolved, we believe the troubles that Equity foresees will not be realised, but if they are we shall take action.

LORD DAVIES OF LEEK

Is the noble Lord making any sort of approach to this valuable little debate? I withdraw my arrogant accusation of the Liberals; I thought the case was pungent, powerful and cogent, and not comprehended, apparently, by the noble Lord.

LORD BYERS

You are always changing your mind.

LORD DAVIES OF LEEK

I am like the Liberal Party. I am sitting too near to them, and it is affecting me. All we are asking is that the Government will look at this. The Government seem to resent the fact that we have the audacity to question their ability, their brilliance. We are here to criticise the Government. I have some knowledge of Cabinet working. We had plenty of courageous people in the Labour Cabinet. Surely there are courageous people in the Conservative Cabinet. I can see one now, a very able one. He can say, "We had a bad time in the House of Lords; it was unpleasant, but there was real meaning in the people who spoke". Will not the Government accept the knowledge and experience shown on both sides and give some kind of promise, before the Bill leaves here to go back to another place, that they will look into this?

LORD BEAUMONT OF WHITLEY

The noble Lord, Lord Drumalbyn, said at the end of his speech—and I apologise that I did not quite follow him—that he hoped the technicality could be resolved before the passage of the Bill. What technicality was he actually speaking about?

LORD DRUMALBYN

I was speaking about the technicality that the noble Lord, Lord Archibald, was referring to, namely, that this is not really a pre-entry closed shop but, by a technicality, it is brought in under Clause 6.

LORD BEAUMONT OF WHITLEY

I am rather encouraged by this. On the basic problem of trying to find, within the framework of this Bill, a valid rule for the acceptance of Equity agreements—and similar agreements in other unions, with appropriate safeguards, because I take the point about other unions which may or may not be slightly less worthy—is the noble Lord saying that the Government are still going on, looking at, and consulting draftsmen and experts on how this can be done? If he is saying that, and if they really are doing this, I am fairly convinced that a solution can be found.

LORD DRUMALBYN

Our minds are not closed to this. If ways can be devised I am sure we should be very glad to do it, but we cannot depart from Clause 6. As Clause 6 stands, what we have to do is to find some other way of dealing with this.

LORD BYERS

Is the noble Lord telling the Committee that he, as a member of the Government, is going to take the initiative to try to find a solution? If he is saying that, I think it makes a difference.

LORD DRUMALBYN

I shall certainly use what influence I have, but I do not know about initiative. Noble Lords know the position that a Minister has in this House. If the noble Lord likes to say "Take the initiative" well, I will say "Take the initiative". I will start the ball rolling.

11.13 p.m.

LORD SHACKLETON

This really is a test case of our consideration of this whole Bill. There has been a strong attempt, particularly from the Liberal Benches as well as from my noble friends, to persuade the Government to meet this point, and while they do not fully accept that it is necessary, they see the very strong feelings held in the Committee. It was our hope—and we have been discussing really hard matters on this clause —that the Government would consider this. Though I acknowledge that it is always difficult for a House of Lords spokesman, what I fear is that there is no willingness on the part of the Government to touch any of their sacred pillars. They have continually said that they will not infringe the basic principle, and they are prepared to say that they will not do so at any price, and they justify this by saying that they do not believe that the fears of Equity in this matter are real.

I am bound to say that we had hoped that we were going to make improvements to this Bill. There is not a sign of movement. The noble Lord has been begged to meet us on this, and it is obvious that there are noble Lords on his side of the House who are deeply anxious about this, and also on the Bishops' Benches. Unless the noble Lord undertakes seriously to consider the case, and with a view to coming back with a solution—it has been suggested that a solution can be found; there have been representations and the Government have gone some way, but it is argued that they must go further—on the Report stage, then we have no option but to test the opinion of the Committee, but with deep anxiety and deep foreboding about the future of this Bill.

11.14 p.m.

LORD CONESFORD

I think it would be cowardice if, taking a view which is in stark contrast to many views put forward. I did not speak now. I thought it might be more appropriate on the Question, That the Clause stand part, but it would be cowardice on my part if I did not say a word in support of Her Majesty's Government on this point, though in criticism of the clause. Let me make it absolutely clear that I am entirely convinced, and always have been convinced, that there is need for a strong trade union in the acting profession—I have never doubted that—and for a great deal of the arguments that have been put forward from many sides I have considerable sympathy and some agreement. Nevertheless, I think that there is in this clause matter which directly breaches the Universal Declaration on Human Rights.

I am not going to repeat the argument, but there is under Section 20, paragraph 2, a direct prohibition. A person must not be compelled to belong to an association, and in the clause which we are considering there is a breach of that. I do not however think that for that reason we can completely oppose the clause in this Committee. It has passed in another place after consideration. It is true that it only passed with a majority of two, the smallest majority recorded on this Bill, but it passed. But taking the view which I do that there is mischief in this clause, I think we must do our utmost to protect all parties against the tyranny that can result from a breach of this principle in the Universal Declaration on Human Rights. Therefore, I think that the Government are not being merely stubborn, I think they are being right in insisting that they are not now going to abandon what is set out in Clause 6.

May I say one word about Equity? I am rather appalled at the frequent allusions to the acting profession as "this industry". It is not an industry; it is a profession and an art, and in this country, as has been said from many sides, it is an art of which we can be proud. I thought the most hopeful remark my noble friend made in stating the Government's case was that, if necessary, they would consider providing even statutory protection. He did not think it would be necessary, but he mentioned that. I should be much happier if, instead of having this general clause which I think breaches an international Declaration, we had specific provision for the particular cases where we think provision ought to be made, such as the stage and the seamen. Then, indeed, the matter would be controlled by Parliament instead of being left at large, as I am afraid it will be under this clause.

CONTENTS
Archibald, L. Delacourt-Smith, L. Morris of Kenwood, L.
Bathurst, E. Diamond, L. Plummer, Bs.
Beaumont of Whitley, L. Donaldson of Kingsbridge Ritchie-Calder, L.
Bernstein, L. Gardiner, L. Shackleton, L.
Blyton, L. Greenwood of Rossendale, L. Shepherd, L.
Brockway, L. Henley, L. Stow Hill, L.
Brown, L. Hoy, L. Strabolgi, L. [Teller.]
Burntwood, L. Hughes, L. Swaythling, L.
Byers, L. Janner, L. Thurso, V.
Champion, L. Lee of Asherdige, Bs. Wells-Pestell, L.
Cooper of Stockton Heath Llewelyn-Davies of Hastoe, Bs. [Teller.] White, Bs.
Davies of Leek, L.
NOT-CONTENTS
Aberdare, L. Brooke of Cumnor, L. Digby, L.
Abinger, L. Broke of Ystradfellte, Bs. Drumalbyn, L.
Ailwyn, L. Carrington, L. Dudley, E.
Allerton, L. Chelmer, L. Elliot of Harwood, Bs.
Balerno, L. Clitheroe, L. Emmet of Amberley, Bs.
Balfour, E. Colville of Culross, V. Exeter, M.
Beauchamp, E. Conesford, L. Falkland, V.
Belhaven and Stenton, L. Cowley, E. Ferrers, E. [Teller.]
Belstead, L. Cranbrook, E. Ferrier, L.
Berkeley, Bs. Crawshaw, L. Fraser of Lonsdale, L.
Boston, L. Cromartie, E. Gisborough, L.
Boyle of Handsworth, L. Daventry, V. Goschen, V. [Teller.]
Bradford, E. De Clifford, L. Gowrie, E.
Bridgeman, V. Denham, L. Gray, L.

But on the short issue raised at this moment, I would unhesitatingly support the Government in thinking that Clause 6 of this Bill is of importance and ought to be maintained. I hope that the Committee will forgive me for having spoken, but I think it would be cowardice on my part if it were to be assumed that the whole weight of opinion in this short debate was against Her Majesty's Government.

LORD ARCHIBALD

May I say one or two words? First of all, I am bitterly disappointed that the noble Lord, Lord Drumalbyn, has not been able to go further on this occasion. If he had said that the Government accepted the principle and would seek means for the Parliamentary draftsmen to give expression to it, I should have accepted that. But he said that if our worst forebodings were borne out Government legislation would be introduced. We know what that means. It means years and years before amending legislation can be brought in. In these circumstances, I am afraid that I must press my Amendment.

11.20 p.m.

On Question, Whether the said Amendment (No. 113A) shall be agreed to?

Their Lordships divided: Contents, 34; Not-Contents, 91.

Gridley, L. Lucas of Chilworth, L. Ruthven of Freeland, Ly.
Grimston of Westbury, L. Luke, L. St. Aldwyn, E.
Hailsham of St. Marylebone, L. (L. Chancellor.) Massereene and Ferrard, V St. Helens, L.
Merrivale, L. St. Just, L.
Harvey of Tasbugh, L. Mersey, V. St. Oswald, L.
Hastings, L. Monk Bretton, L. Sandford, L.
Hives, L. Mowbray and Stourton, L. Sandys, L.
Hood, V. Moyne, L. Strange, L.
Inglewood, L. Napier and Ettrick, L. Stratheden and Campbell, L.
Jellicoe, E. (L. Privy Seal.) Nelson and Stafford, L. Thomas, L.
Kemsley, V. Netherthorpe, L. Tweedsmuir, L.
Killearn, L. Pender, L. Tweedsmuir and Belhelvie, Bs.
Kilmany, L. Rankeillour, L. Vivian, L.
Kinnoull, E. Redesdale, L. Wigram, L.
Latymer, L. Redmayne, L. Windlesham, L.
Lauderdale, E. Rochdale, V. Yarborough, E.
Lothian, M.

Resolved in the negative, and Amendment disagreed to accordingly.

11.28 p.m.

LORD DELACOURT-SMITH moved Amendment No. 118: Page 14, line 3, after ("charity") insert ("or other fund approved by the trade union or independent organisation of workers").

The noble Lord said: This is a simple Amendment which I trust will commend itself to the Committee. We have already discussed the question of the donations or contributions to charity which may in certain circumstances be made, and the purpose of this Amendment is the modest one of seeking to extend somewhat the destinations of contributions paid by the individuals who claim exemption under these arrangements. It appears (to us that there may be appropriate organisations and appropriate funds, possibly of an educational character or associated with the trade union movement, which may not fall within the definition of "charity" given elsewhere in the Bill, and we feel that this modest widening of the scope is justifiable. I beg to move.

LORD WINDLESHAM

We are considering here, as the noble Lord said when moving the Amendment, the very small minority of people who have a genuine conscientious objection to trade unionism. They do not represent any threat to the strength and growth of trade unions and neither do they represent any dissident minority which seeks to undermine the rights of workers who want to enjoy the benefits of trade union membership. It is an indication of the tolerance and quality of a society that it is willing to make provision for the nonconformist.

Trade unions have long made provision in closed shop agreements entered into in the past to exempt those with genuine conscientious objections to joining a union. Those provisions have worked well on the whole, and the corresponding provisions in the Bill have taken full account of them. Exemption of the individual worker to join a union is granted on agreement by the conscientious objector to contribute to a charity an amount equivalent to the union subscription. That seems very reasonable. However, these Amendments would only serve o introduce contention into what is, and should remain, a satisfactory area. It is suggested that a conscientious objector should be required to contribute his appropriate contribution not to some charity agreed between the union and the worker but to any other fund to which the union directs that the contribution should be made. The union might direct that the contribution should be paid to some other fund or organisation, the objects of which were equally in conflict with the worker's beliefs and conscience. We have to ask ourselves why this should be necessary. I think we can agree that the trade union movement is big enough to tolerate the conscientious objector and to allow him to contribute to charity—which is what takes place in most instances now. This is not a case of a man getting a "free ride" but of making a contribution to an appropriate charity which will not conflict in any way with his beliefs or conscience. This will not damage the trade union. Arrangements of this kind for payments to an agreed charity work well enough in practice, and we believe it is only sensible to continue them.

LORD DAVIES OF LEEK

May I ask whether the noble Lord thinks that the word "charity" is defined clearly enough in the Bill? What is to stop an employer and I getting together, or any small group in a factory amalgamating to make a "charity"? I believe there should be a clear definition of the word.

LORD BEAUMONT OF WHITLEY

Your Lordships will remember that we attempted earlier to suggest that payment to a charity in the agency shop as well as in the approved closed shop should be decided by the worker alone; and it was pointed out by the noble Lord, Lord Conesford, among others, that the point of the Amendment was to simplify the Bill. There are two ways, by making it a decision up to either the worker or the trade union. We accept that. We still think that to give the worker the decision would be the best solution, but since the members of the Labour Party are opposed to that we certainly propose to move an Amendment on Report suggesting that the trade union should have the sole right of decision, so as to simplify the whole situation. I do not ask the Government to be precipitous, but, judging by the support from both sides of the Committee, I think there is a chance that this may be accepted. If that is so, I ask the members of the Labour Opposition not to press this Amendment. I assure the noble Lord, Lord Davies of Leek, that the point he raised is pertinent and we shall seek to put down an Amendment —I have already started an investigation —to narrow the definition of what is a charity.

LORD BROWN

May I ask the noble Lord, Lord Windlesham, a question? In the terms of payment by choice to a charity, outlined in Clause 8, the reference is to charitable payments within an ambit of an agency shop agreement. Does that apply to a charitable payment in the closed shop which we are now discussing? It is not clear to me whether it does. If the Clause 8 provisions—that is to say, that the choice of charity is shared between the trade union and the worker —applies to the clause under consideration, what the Minister has said so far is, with respect, not correct. It will not be open to the trade union alone to decide to pay to something other than a charity.

LORD CONESFORD

May I put a point to my noble friend? I think that the charity for the purposes of the present clause is dealt with in paragraph 22 of Schedule 1. A charity, as mentioned by the noble Lord, Lord Brown, is defined in Clause 8(3). Is there any reason why that definition should not apply?

LORD DAVIES OF LEEK

I also looked at Part IV of Schedule 1 where it says appropriate contributions to a charity to be determined by agreement between him and the trade union. Here is ambiguity again. This is legalism gone mad.

LORD WINDLESHAM

I prefer to describe it as consistency. It is exactly the same provision which applies in the agency shop which we discussed earlier on Clauses 7, 8 and 9, and the approved closed shop agreement which we took on Clause 16. As my noble friend Lord Conesford correctly said, drawing the attention of the noble Lord, Lord Brown, to Part IV of Schedule 1, the mechanics of the payment, the charity to which it is paid, is set out in that Part of the Schedule. I was asked by the noble Lord, Lord Davies of Leek, about the interpretation and the meaning of the word "charity". In Clause 8(3) there is a definition which we discussed last night and which I described as rather tautologous: In this part of the Act 'charity' means any institution or other organisation established for charitable purposes only … What are regarded as charitable purposes is a matter that has exercised the courts since 1601. There is no statutory definition of charitable purposes in this Bill or any Act; and I explained at some length the meaning of the words "charitable purposes".

LORD DAVIES OF LEEK

I do not want to make heavy weather of it.

LORD CONESFORD

I am sorry, but the noble Lord has not answered my question: why should we define charity in Clause 8(3) but should not define charity for the purpose of Clause 16?

LORD WINDLESHAM

We do, because the reference in Clause 8(3) is to this Part of the Act, and we are still in the same Part of the Act.

LORD BROWN

I have got the answer. I am grateful to the noble Lord, Lord Conesford, for clearing up the point that the decision to which body the sum is to be paid rests between the trade union and the worker. I think the Minister indicated that he could not accept the Amendment because it would leave it to the union to decide. But with great respect it does not; it is between the union and the worker.

LORD WINDLESHAM

The noble Lord is not following the discussion with his usual close attention. What the Amendment does is to extend the procedure so that not only has a charity to be agreed. That is what is in the Bill, but the noble Lord, Lord DelacourtSmith, has in mind a fund, not a charity; a fund nominated by the union. So this would be an extension.

LORD BROWN

With the greatest respect, I am not the one who is not following the argument; it is the Minister who is not following what I think I said quite clearly. There can be no objection to the Amendment if the worker and the union, both the interested parties, have to agree. There can be no extension of it beyond the charity. If they both feel that it should be given to some worthy object other than what is defined by "charity", what is the objection to the Amendment?

LORD WINDLESHAM

I take the point, but the Bill does say—and this is a carefully constructed scheme, as I explained yesterday—that in these rare cases where there is a man with a conscientious objection we feel that it would be better that the payment should be made to a charity, and only to a charity. Furthermore, although we did not carry the noble Lord, Lord Beaumont of Whitley, with us, we felt that, since both the union and the individual had an interest in the amount of money which was going to the charity, both of them should have a say in which charity it should be, and that where there is a dispute it should be decided by the Industrial Tribunal.

LORD DELACOURT-SMITH

I am sorry that the noble Lord has taken a somewhat rigid attitude in response to this modest Amendment. He said that it was a very carefully constructed scheme, which the Government was defending. It must indeed have been extremely carefully constructed if it will be imperilled by so modest an Amendment as this. But the hour is late, and we have many important matters to discuss, and I take note of the point which was made by the noble Lord, Lord Beaumont of Whitley. In the circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

11.43 p.m.

LORD DRUMALBYN moved Amendment No. 120: Page 14, line 10, leave out from ("not") to ("a").

The noble Lord said: Perhaps we could discuss Amendments Nos. 123, 125 and 126 together. It may help noble Lords if I were to read out the subsection as it will be after the Amendment, if the House accepts the Amendment: (5) to accordance with subsections (3) and (4) of this section, it shall not be an unfair industrial practice for an employer to whom an approved closed shop agreement applies, or for a person acting on behalf of such an employer,—

  1. (a) to dismiss, penalise or otherwise discriminate against a worker to whom the agreement applies, on the grounds that he is not a member of the trade union, or (as the case may be) of one of the trade unions, with which the agreement was made, and has refused to become or has been excluded from being such a member, or, if specially exempted, has refused or failed to pay appropriate contributions to a charity.

These Amendments seek to clarify the meaning of subsections (5)(a) and (5)(b) of Clause 16. They will, I think, be welcomed by all your Lordships, particularly perhaps by those who sit on the Benches immediately opposite. They are intended to make it quite clear that a worker who refuses to comply with the terms of an approved closed shop agreement may legitimately be refused employment or dismissed. Unless an employer has this power, the primary purpose of an approved closed shop agreement would be undermined.

The clause as drafted does not make clear what would be the position of a worker who quite properly was expelled by an approved closed shop union or was refused membership of it. He could not be said to have refused membership, but clearly the employer should in such circumstances be able to dismiss him or refuse to engage him in order to maintain the closed shop agreement. Neither do the provisions differentiate between failure on the part of the worker to apply for membership and failure on the part of the union to accept him. I think that the Amendments make it clear that the employer might properly enforce the closed shop where the agreement has been approved. A worker may not be unreasonably or arbitrarily excluded from membership of a union. He is protected from such arbitrary actions under Clauses 63 and 64.

Obviously, to safeguard the worker's position properly, there must be a stay of execution before an employer takes action against him to enforce the terms of an approved closed shop agreement in order that he may appeal against the trade union's decision. That safeguard is provided in the new clause which we shall be discussing. However, I am sure that your Lordships will agree that these Amendments are improvements to Clause 16 and I commend them to the Committee.

LORD DELACOURT-SMITH

We shall be discussing the bearing of these Amendments when we come to the new clause, which appears as Amendment No. 128. The matters are closely related and one cannot appreciate the effect of the Amendments to which the noble Lord has spoken without looking at Amendment No. 128. For the moment, we do not wish to challenge the Amendments, save that I should like to put one question, which the noble Lord may find it convenient to answer now or when we come to Amendment No. 128. I would ask whether the original phrase "failed to become", which appears on page 14, line 10, and would be deleted by Amendment No. 120, in the noble Lord's view norrawore or wider than excluded from being a member", which appears in subsection (2) of the new clause. In other words, are there circumstances in which an applicant could be regarded as having failed to become a member of a union in addition to those which would be regarded under the new clause as being excluded from the Bill?

THE LORD CHANCELLOR

I speak now very much off the cuff, but my first impression is that there is a terra media here. If a worker refused to become a member of a union, that is not the same thing as having failed to become a member. That is certain. And being excluded from a union is not the same thing as having failed to become a member of a union. Therefore, there is a territory in between, in which a person may fail to become a member because of some misunderstanding or negligence on either side or on both sides which is not dealt with in the latter set of circumstances and which would have been dealt with in the former set of circumstances. That is my immediate reaction to the question the noble Lord has asked.

LORD DAVIES OF LEEK

In practical experience, in the old days in the mining industry, if a man was dubbed an agitator in one pit and he moved over the hills to the next pit, suddenly he became known as an agitator and he would not get a job in that pit. If the union also had some feeling against this man—who had tried to join the union but the union said, "No. We will have nothing to do with you. You are a disrupter"—he would not be a member of the union, although he had tried in two or three places to join. With all respect, I think there is a difference in semantics and in meaning. I stand to be corrected—I am not legally trained—but I should have thought that the clause is now wider. That is a point to which it might be worth having an answer.

LORD DRUMALBYN

I think I ought to say in amending this clause that it is my intention to accept Amendment No. 126A—I think it has relevance to what the noble Lord has in mind—if that is moved when we come to Amendment No. 126, one of the Amendments that we are taking together with this one. To that extent, the meaning would narrow the provision.

On Question, Amendment agreed to.

LORD DRUMALBYN

I beg to move Amendment No. 123.

Amendment moved— Page 14, line 13, after ("made") insert ("and has refused to become or has been excluded from being such a member").—(Lord Drumalbyn.)

On Question, Amendment agreed to.

LORD DRUMALBYN

I beg to move Amendment No. 125.

Amendment moved— Page 14, line 17, leave out ("and has refused to become").—(Lord Drumalbyn.)

On Question, Amendment agreed to.

LORD DRUMALBYN

I beg to move Amendment No. 126

Amendment moved— Page 14, line 19, at end insert ("and has refused to become or has been excluded from being such a member").—(Lord Drumalbyn.)

LORD GRAY moved Amendment No. 126A as an Amendment to the Amendment. Line 1, leave out ("has refused") and insert ("refuses").

The noble Lord said: I believe that my noble friend Lord Drumalbyn has already indicated that he is prepared to accept this Amendment. It may be for the convenience of the Committee if I move it formally. I beg to move.

On Question, Amendment to the Amendment agreed to.

Amendment, as amended, agreed to.

On Question, Whether Clause 16, as amended, shall stand part of the Bill?

LORD DELACOURT-SMITH

We have now completed our consideration of the clause which establishes the so-called approved closed shop agreements. I am bound to say that in the course of the discussion there has not appeared much sign at this stage of a Government disposition to move very far from their revised conception which is set out in the clause as it stands. Even upon the very powerful case, so widely supported in the Committee, of the theatrical profession, the response of the Government was a disappointment to many of us.

I should not like this clause to be added to the Bill without making one or two general observations upon it. In so doing, I shall try to avoid repetition of the points which have already been made. I will not again labour the position of the theatrical profession, or the Merchant Navy, which was mentioned earlier by my noble friend Lord Blyton. The fact that I am making so brief a reference at this stage will not in any way lead noble Lords in any other parts of the Committee to think that we do not still regard these as two serious examples of industries and occupations in which difficulties are going to arise because of the doctrinaire approach of the Government. The noble Lord, Lord Drumalbyn, made it clear when he replied about the theatrical profession that the Government's position is that satisfactory industrial relations, in a situation which nobody criticises, have to be sacrificed or imperilled because they do not fit in with the Government's philosophy. There are a number of sections of industry in which the maintenance of arrangements is going to be made very difficult, if not impossible, if the present attitude is not modified—and I sincerely trust that it will be modified.

Let me take one example from the wool textile industry. I have seen statements from the National Union of Dyers and Bleachers, who substantially represent the workers in wool textiles. In this union, approximately 20,000 people are currently covered by a pre-entry closed shop agreement, which was voluntarily negotiated in 1946 with the employers in the dyeing trade. These workers are engaged in the textile finishing industry, and the pre-entry closed shop arrangements give to the union a measure of control over the labour supply. This is administered by the union's full-time officers, with the full support of the active membership of the union and managements. There has not been a major strike in this section of the industry since the inception of these arrangements 24 years ago. The record of industrial peace goes back to 1929, apart from a very small number of local stoppages.

It is almost inevitable, in the view of this union, that dissention and argument will result from the effects of the Bill, and the probability of stoppages at some firms. They think it may be a considerable number of months before the industrial relations in the industry can be restored. They do not look forward with any great enthusiasm to attempting to re-negotiate these arrangements under the present provisions of the Bill in the climate which they believe will be created by its operation.

I take that as one example of one industry where arrangements which it appears offend the susceptibilities of the Government have continued for a very long time—incidentally, continued for years, from 1951 to 1964, under Conservative Governments—without difficulties arising, and to the general advantage of all those concerned in the industry and to the general advantage of the national economy. When one thinks of the transformations and the degree of restructuring which has taken place in this industry one realises what a possibility there would have been of greater difficulties arising if there had not been the degree of mutual confidence created by the arrangements to which I have made reference.

I have taken one example; one could take a number of other industries where arrangements, which will be disturbed and indeed rendered impossible, or are likely to be rendered impossible, by the Government's approach, have been applied to general advantage. It seems very sad that at a time when we are all seeking, perhaps in very varying ways, to promote better industrial understanding steps should be taken—for such abstract reasons (to be perfectly frank)—which are likely to have the sort of results I have described.

We believe that this matter will still require further consideration. We have indicated our view and we shall pursue it, of course, when we look at the Schedule to which this clause makes reference. As I said in opening the discussion on this clause, speaking on an early Amendment, there is scope for the creation of closed shop agreements on a wider basis than the Government envisage. We envisage them as coming into existence by agreement between the employers and the trade unions in the industries concerned, and as being made in accordance with recommendations of the Commission for Industrial Relations. We accept, of course, the view that the Commission is an advisory body and believe that it is of an advisory character; and the standing which we believe it could secure, if it could be rather dissociated from the close connection with the Industrial Court which the Government propose, would be the proper safeguard for the public interest in connection with closed shop agreements.

We very much hope that it will be possible for the Government to keep this matter under close examination during the remaining stages of this Bill; that they will be mindful not only of debates which have been held in another place but of the discussions on this Bill in your Lordships' House; and that they will also be receptive to views which may be expressed directly by trade unions and the employers who believe that some aspects of the present proposals in connection with this clause will militate against the improvement of industrial relations. I very much hope that the noble Lord will be able to give us assurances that the Government's mind is open to move in these directions—the directions in which we believe events and facts will force them, the more they examine these facts and the more events develop.

12.5 a.m.

LORD DAVIES OF LEEK

Again, because of the hour and the work we want to do I shall not be very long. We have had an appeal and it has been said that Her Majesty's Government were looking at the point of human rights. It was beautifully put by a noble Lord opposite who spoke of the rights of belonging or not belonging to a union. What we did not hear is written clearly in Clause 16(5), where it says In accordance with subsections (3) and (4) of this section"— I will not read it all, because noble Lords can read it for themselves— it shall not be an unfair industrial practice "— and that is the operative phraseology— for an employer to "— to what? …to dismiss, penalise or otherwise discriminate against a worker to whom the agreement applies". How much rope do the Government want to hang themselves? What do they want to do? We are not in the age of cooking and' frying in the medieval Church, Sombody said the modern trade unions are more powerful than the mediæval Church, but as I said the other evening at least the trade unions do not cook and fry people because they have different points of view, as the mediaeval Church did. But now the Government are saying it shall not be an unfair industrial practice to dismiss a fellow, to penalise him or otherwise discriminate against him.

LORD BROWN

May I interrupt the noble Lord? This really is too much.

LORD DAVIES OF LEEK

I know it is too much.

LORD BROWN

The noble Lord cannot know anything about closed shops. The object of these clauses is to enable an employer to carry out the wishes of a union in maintaining a closed shop. If the noble Lord knew anything about industry he would know this. The only way to enable an employer to maintain a closed shop is to give him the right to fire a man because he refuses to join a union. The noble Lord has got this completely upside down.

LORD DAVIES OF LEEK

He has not; that is just the point. The right to fire and penalise is all right but it does not just say that. How much does the noble Lord want? Does he want a ducking stool or something? The Government are asking for the power to dismiss—fair enough; to penalise or otherwise discriminate against him. Is the employer being asked to send him to Coventry or to hold kangaroo courts? I know industry well enough. There are so many phrases in this that are unnecessary. I know the noble Lord is a little irate, but I take it in a jovial way.

LORD BROWN

I am not; I am full of pity.

LORD DAVIES OF LEEK

And I am full of pity for the noble Lord. There is no reason for all that phraseology in the Bill.

EARL BATHURST

Is it possible to ask Her Majesty's Government to pay special attention to Amendment No. 113A, moved by the noble Lord, Lord Archibald, and not only to the theatrical industry and the entertainment industry but to the special problems that I believe may be involved for all employers of small staffs, and particularly varying staffs —workers who are employed for a certain time and then go away and come back again later? I understand the average business in this country employs about 200 people and I believe such employers could be involved in difficulties as a result of this clause. I support the clause, but I do ask for that assurance.

LORD DRUMALBYN

May I take my noble friend's request for an assurance on this clause first? We are of course dealing with a compartively narrow area here. We shall be dealing more widely with the kind of point he has in mind later, and perhaps it would be more appropriate for him to raise it when we come to it.

The noble Lord, Lord Delacourt-Smith, has just given a somewhat qualified welcome—if I may describe it in that way—to this clause. Undoubtedly he must regard it as an advance on the Bill as it started out. He is asking that we should keep a completely open mind on any future amendment, but I think he will appreciate that we did introduce this clause in another place for very special reasons and to meet very special cases. He says that our reasons for Clause 6 were abstract reasons, but I do not think that is true. Whenever you take legislation you decide on the principles, as we did, for example, in the case of restrictive practices legislation. You decide on the principles involved, you erect gateways, and then you see whether particular cases fall into those particular gateways in order to be exceptions from the general rules of the Bill.

The general rules of the Bill have been dealt with and I think they are clear. Here we are dealing with exceptional cases. The noble Lord has mentioned the dyeing trade. This also has come to my attention. I know how difficult it is, and how very irksome when there has been an agreement in existence for a long time, one containing a no—strike clause, and they have a very good history of industrial relations, to re—negotiate that. But it is not a bad thing from time to time to look at the agreements that you have negotiated. I do not believe that 'this should necessarily do any harm provided it is approached in the right spirit. As the general spirit of this Bill is to improve industrial relations, and all the machinery that is being devised is designed for that purpose, I am very hopeful indeed that the dyeing industry will retain its very high reputation for the standards of industrial relations in that industry. I see no reason why it should not do so. As the noble Lord said, we shall be coming very soon to the Schedule, and there we shall be discussing the detailed implementation of this clause.

I do not think I need say any more about that, except comment in one word on what the noble Lord, Lord Davies of Leek said. He did not criticise "dismiss" and he did not criticise "penalise", but he did criticise "discriminate". As an instance, it may well be that in a particular section of a plant special arrangements with a particular description of employees might have to apply. Those special arrangements might carry special benefits in the form of terms and conditions of employment. If this was in the nature of a closed shop then in that case the alternative might be given either of dismissal or of employment in some less remunerative capacity. That might be an instance of what discrimination would mean. I do not think this is so very terrible, given a closed shop agreement. I do not think I need carry the matter further, except to say that we had already passed these words on an earlier occasion when we dealt with Clause 5.

LORD DAVIES OF LEEK

Some of us know what we are talking about as well as other noble Lords. With husbands and wives working in industry, with the phraseology, "penalise", "discriminate", or otherwise, sometimes all the family could suffer and not merely the worker. If the noble Lord behind me does not know this he does not know the conditions in industry. I am looking at the whole matrix of employment. I think all that phraseology was unnecessary. "Dismiss" or "fire" was the word used behind me. All right, it has been noted, and the day will come when some of this will come home to roost to the Party opposite.

THE EARL OF BALFOUR

On a point of information, a good deal has been said about the seamen's Union having difficulty in joining a closed shop. From my experience as a retired Merchant Navy officer, and also as a member of the seamen's union of New Zealand, which was a closed shop, I do not think you will find that there are any complications whatever. In fact, when I was with the seamen's Union of New Zealand we were actually able to carry out a ballot on board the ship, a secret ballot, for the appointment of officers of the union. It was carried out by the chief officer and the bo'sun. Everybody put his vote in an envelope, which was sealed and sent back to the union headquarters. While I am on the point of the closed shop, in New Zealand, I think in 1948, they had a small breakaway from the closed shop union, but it only lasted a year and they went back to the closed shop. Whether it is so to—day I cannot say. From my personal experience of 13 years at sea I do not see any complications there whatsoever.

Clause 16, as amended, agreed to.

12.17 a.m.

LORD BELSTEAD moved Amendment No. 128: After Clause 16, insert the following new clause:

Supplementary provisions as to approved closed shop agreements

".—(1) For the purposes of section 16(5)(a) of this Act a worker, notwithstanding that he has not expressly refused to become a member of a trade union with which an approved closed shop agreement was made, shall be treated as having so refused if he does not duly apply for membership of that trade union before the end of the relevant period or if, having applied for such membership, he withdraws that application

(2) For the purposes of section 16(5) of this Act a worker shall be treated as having been excluded from being a member of a trade union if (but only if)—

  1. (a) his application for membership of the trade union has been rejected, or he has been expelled from membership of the trade union, and
  2. (b) the conditions specified in the next following subsection are fulfilled.

(3) The conditions referred to in subsection (2)(b) of this section are that—

  1. (a) under the rules of the trade union the worker has a right of appeal against his rejection or expulsion, and
  2. (b) his appeal has been heard and dismissed or has been withdrawn or the time for appealing has expired without his having exercised that right.

(4) Subject to the next following subsection, in this section "the relevant period" in the case of an approved closed shop agreement—

  1. (a) in relation to a person who, on the date on which the agreement takes effect, is a worker to whom the agreement applies, means the period of three months from that date, and
  2. (b) in relation to a worker subsequently engaged, means the period of one month from the date on which he begins to be employed as a worker to whom the agreement applies,

(5) The Secretary of State may by order made by statutory instrument provide that, in so far as any approved closed shop agreement relates to workers engaged, or seeking to be engaged, in work of a description specified in the order, subsection (4) of this section shall have effect as if, for the references to three months and one month, there were substituted references to such shorter periods as are specified in the order."

The noble Lord said: Under an approved closed shop agreement, the employer agrees that it shall be a condition of employment that a worker must either be or become a member of the appropriate trade union, unless the worker has a conscientious objection to joining a trade union, in which case he is specially exempted. Amendments made to Clause 16 a few minutes ago by my noble friend Lord Drumalbyn made clear the intention that an employer might legitimately dismiss a worker to whom an approved closed shop agreement applied if that worker refused to become a member of the appropriate trade union or was excluded from membership of it. The proposed clause which I am now moving would make it clear that the worker will be regarded as having refused to become a member, and failed to comply with the terms of his contract, if, after a relevant period, he has refused to apply or withdrawn his application for membership. The clause also would make clear that refusal of membership to the worker by the union, in other words exclusion, is to be taken as either rejection of his application for membership or his expulsion from the union, provided that he has been given an opportunity to appeal against the union's decision. I think my noble friend amplified that point in speaking on the previous Amendments.

Finally, the clause provides that in the case of an agency shop, the worker covered by an approved closed shop agreement will have one month from engagement or three months from the making of the agreement, if he is an existing employee at the time, in which to join the appropriate union. The Secretary of State has power to reduce those periods by Order for particular categories of workers. The clause, therefore, provides clear safeguards of the worker's rights where an approved closed shop applies to him, but makes clear that if the obligation to join the union in an approved closed shop is not accepted the employer may, unless the worker has a conscientious objection to joining a trade union, legitimately dismiss the worker. I beg to move.

LORD DELACOURT-SMITH

This is a comprehensive clause which deals with a quite important aspect of the matter dealt with in the preceding clause. It deals with a subject of some degree of complexity, and one does want to look at it against the circumstances of various industries. I would not like this evening to be seeking to make any very definitive statement upon it, although I think we may well have to do so at some later stage.

I am bound to say, and I think this requires some comment from the Government, that the relevant period as defined in subsection (4) seems to me to be unduly long. I cannot understand why, in relation to a worker subsequently engaged—that is to say, a worker who comes under (b)—there is to be a period of one month from the date on which he begins to be employed as a worker to whom the agreement applies. I observe that subsection (5)—and the noble Lord drew attention to this when he moved the Amendment—gives the Secretary of State power, by Order, to bring into operation shorter periods in such occupations as the Order may define. I should be grateful if we could have some more clarification of this, because this is profoundly unsatisfactory in the case of those industries—and we have made particular reference to some of them—in which employment tends to be of a casual and short term character.

It is quite obvious that there are a number of sections of industry in which the application of subsection (4)(b), unmodified by action under (5), would render the arrangements in Clause 16 virtually meaningless. One obvious example: is the Musicians' Union, which has already featured in our discussions. Very frequently, as everybody in the Committee will know, an employer of musicians wants a particular musician at quite short notice for an engagement of quite limited duration. If the individual is to have a month in which to join the union after he has been engaged he will have completed the engagement and moved on to some other, and started a fresh month long before the original month has expired. I appreciate deeply the terrible difficulty which this creates for the Government, because in some of these industries they will really have to define some formula which will be very nearly indistinguishable from a pre—entry closed shop. I am quite sure that, in the end, they will have to come at least to the formula which my noble friend Lord Archibald has repeatedly emphasised, that of a point of entry closed shop.

I offer these observations, which are an indication of the fact that this new clause is not one about which we can feel completely happy, even on the relatively short examination which we have been able to give it since it appeared on the Order Paper. I should like the noble Lord, who is to reply for the Government, to make some observation on the points which I have made, and in particular to address himself to the practical problem which arises in industries which are characterised by short engagements, if the arrangements in Clause 16 in respect of those industries are not to become quite inoperable.

LORD BELSTEAD

I know that the noble Lord, if it had been a different hour of the day, would very likely have gone into this in greater depth, and would have liked my noble and learned friend, or my noble friend Lord Drumalbyn, to have replied. May I briefly pick up the points the noble Lord made? As regards the "relevant period" being unduly long, this is to equate with the agency shop provisions. I do not know whether or not that is an acceptable reason to your Lordships. The noble Lord then spoke about industries in which employment is of a casual or short-term nature. They are precisely why subsection (5) has been inserted in the new clause, giving the Secretary of State power to act by Order. I thought the noble Lord would surely not expect the Government to list the industries in which there are problems of this nature, and if he would not expect that to be done, then surely there are only two alternatives: either once again one lays down criteria, or one gives the Secretary of State regulation powers, and in this case the Government have taken the second option. I do not know whether those replies are satisfactory, but those are the reasons why the latter part of the new clause is drawn in the way that it is.

LORD DELACOURT-SMITH

May I first make it quite clear that my reaction to this clause is made neither more favour-

CONTENTS
Aberdare, L. Boston, L. Chelmer, L.
Ailwyn, L. Bradford, E. Chesham, L.
Balerno, L. Bridgeman, V. Clitheroe, L.
Balfour, E. Brooke of Cumnor, L. Colville of Culross, V.
Bathurst, E. Brooke of Ystradfellte, Bs. Conesford, L.
Belhaven and Stenton, L. Byers, L. Cowley, E.
Belstead, L. Carrington, L. Cranbrook, E.

able, nor more hostile, nor more brief, nor more prolonged by the hour at which we are considering it. I should take precisely the same view of this clause whether we were considering it at three o'clock in the afternoon or at six o'clock in the morning. I am afraid that I did not find the noble Lord's answers very convincing. I was not impressed, and neither were my noble friends, with these periods of three months and one month when they appeared in the agency shop agreement, and we are no more impressed by seeing them recur. They seem in both cases to be unnecessarily long. I referred in particular to paragraph (b) of subsection (4), although putting my emphasis on that in no way suggests that I am satisfied with the three months period referred to in paragraph (a).

But in respect of the occupations with engagements of short duration, we must press to know what is the Government's thinking on these. I appreciate that it is a very satisfactory arrangement from their point of view to tuck this difficulty away in subsection (5), and allow it to be dealt with by the Secretary of State by means of Orders at a later stage. This is a clear-cut indication that the arrangements set out in subsection (4) are unsatisfactory. The Government know that they are unsatisfactory; they do not know quite what to do about them; they do not want to have to defend them; they do not want to have to rephrase them. Therefore, they offer them rather timidly to the Committee saying, "Well, do not look too harshly upon them because, after all, they are followed by subsection (5) which will enable the Secretary of State in God's good time to produce Orders which will solve all the difficult problems." This is not good enough, and I must press the noble Lord on this.

12.29 a.m.

On Question, Whether the said Amendment (No. 128) shall be agreed to?

Their Lordships divided: Contents, 86; Not—Contents, 21.

Crawshaw, L. Hastings, L. Rankeillour, L.
Croft, L. Henley, L. Redesdale, L.
Daventry, V. Hives, L. Redmayne, L.
Denham, L. Jellicoe, E. (L. Privy Seal.) Rochdale, V.
Digby, L. Kemsley, V. Ruthven of Freeland, Ly.
Drumalbyn, L. Killearn, L. St. Aldwyn, E.
Dudley, E. Kilmany, L. St. Helens, L.
Dundee, E. Kinnoull, E. St. Just, L.
Elliot of Harwood, Bs. Lansdowne, M. St. Oswald, L.
Exeter, M. Latymer, L. Sandford, L.
Falkland, V. Lauderdale, E. Sandys, L.
Ferrers, E. Lothian, M. Somers, L.
Ferrier, L. Luke, L. Strange, L.
Fraser of Lonsdale, L. Mansfield, E. Strathcarron, L.
Gisborough, L. Massereene and Ferrard, V. Stratheden and Campbell, L.
Goschen, V. [Teller.] Merthyr, L. Thomas, L.
Gowrie, E. Monk Bretton, L. Tweedsmuir, L.
Gray, L. Mowbray and Stourton, L. [Teller] Tweedsmuir of Belhelvie, Bs.
Gridley, L. Vivian, L.
Grimston, of Westbury, L. Napier and Ettrick, L. Wigram, L.
Hailsham of Saint Marylebone, L. (L. Chancellor.) Nelson of Stafford, L. Windlesham, L.
Pender, L. Yarborough, E.
Harvey of Tasburgh, L.
NOT-CONTENTS
Archibald, L. Diamond, L. Shackleton, L.
Bernstein, L. Donaldson of Kingsbridge, L. Shepherd, L.
Brockway, L. Greenwood of Rossendale, L. Stow Hill, L.
Brown, L. Hoy, L. Strabolgi, L. [Teller.]
Burntwood, L. Hughes, L. Wells-Pestell, L.
Champion, L. Lee of Asheridge, Bs. White, Bs.
Davies of Leek, L. Llewelyn-Davies of Hastoe, Bs. [Teller.]
Delacourt-Smith, L.

Resolved in the affirmative, and Amendment agreed to accordingly.

12.37 a.m.

LORD SHACKLETON

On business, I think it might be to the convenience of the Committee if the Government were to give us some idea of their intentions. I am really moved to do this because the noble Lord, Lord Belstead, speaking in reply to my noble friend Lord DelacourtSmith, said that he quite understood that because of the lateness of the hour my noble friend did not wish to make a long speech. But I did not understand that this also implied that the Government were going to give no reply at all. If the Government intend to keep us sitting at this hour, we assume they wish to discuss business seriously. We have been moving ahead quite well. I think that, on the whole, progress is being made with this Bill, but we shall expect answers from the Government. If the noble Lord, Lord Drumalbyn, thinks that the last Amendment we dealt with was a nice, simple affair which really was in common form, or something like that, and did not need to be argued at all, and if the noble Lord, Lord Belstead, assumes that we are all too tired to put the arguments, I must disillusion them on this point. We shall expect the Government to reply—and I am sure the noble Lord with accept this. If we are going to debate this Bill, we must do it properly, and we hope the Government are feeling strong enough. They are having a very tough time, but they are doing very well. The noble Lord, Lord Belstead, is a popular figure on this side of the Committe. I was asked not to be too nasty to him on this subject, but none the less we have our duty to discharge on this matter.

LORD DRUMALBYN

The mere fact that the hour is late does not in the slightest mean that we should not expect noble Lords opposite to deploy their arguments, and certainly we shall be very willing to participate to the utmost in the debate. But this is always a question of judgment. My noble friend answered the questions, which seemed to me to be put almost in the same form, and there did n3t seem to be any further substance to be answered. As the noble Lord quite rightly said, this was a common form provision to catch up exceptions. I can only assure the noble Lord that, just as the noble Lord, Lord Delacourt-Smith, said earlier, we should have taken exactly the same attitude had this been at any other time of the day. We felt that this matter had been sufficiently explored and that no fresh point had been raised, so that there was no fresh point to answer. I hope the noble Lord will accept that this was just a question of judgment.

LORD SHACKLETON

It seems that the noble Lord assumes that his judgment is always correct: I think it is shockingly bad at present. But I wish him luck, and we will leave the matter there.

12.41 a.m.

LORD ARCHIBALDmoved Amendment No. 128A: After Clause 16, insert the following new clause:—

Provisions as to Central Councils of Employers and Trade Unions

".Notwithstanding any provision in this Act it shall be lawful for an employer or an association or associations of employers or an organisation or organisations of employers to enter into an agreement with a trade union or trade unions and such agreement may provide that the employer or association or associations of employers or organisation or organisations of employers and trade union or trade unions as the case may be and all constituent members of such bodies shall agree to enter into a contract or contracts under the teams which—

  1. (a) all workers and all employers in an area of employment shall agree to establish a Council;
  2. (b) the rules of such a Council may provide that all employers in that area of employment shall be required to conform to the reasonable rules of the Council;
  3. (c) all workers shall be subject to the regulations of such Council;
  4. (d) such rules and regulations may provide that the trade union and its members shall not take strike officially or unofficially during the period of a collective agreement within the meaning of section 32 of this Act;
  5. (e) that the Council shall have power to regulate the number of new entrants into that area of employment or into part of that area of employment."

The noble Lord said: After what has just been said, I must admit to the Committee that I am tired, old and confused. I will not claim that this new clause introduces any spectacularly new element into the Bill, but it is quite clear in what it seeks to do. I think that members on this side of the Committee at least will agree that it is unique to have a clause which is absolutely clear in what it seeks to do. One of the effects of this clause, if carried—which I think is highly unlikely—would be to enable the London and provincial theatre councils to continue as at present. The Bill, in its present form, renders these councils powerless because it contains no provisions to apply coercion to the unwilling employer. There are many provisions in the Bill to apply coercion to the unwilling trade unionist, but here is a flagrant case of not apply coercion to the unwilling employer.

The new clause permits two essential things; it enables all employers in a field of employment to be forced to conform to the rule of the council which is set out in the Amendment, whether or not they are members of it and whether or not they register under the Bill. In the theatre industry it is difficult to cope with the bogus manager. In the second place, it enables councils to regulate entry into the field of occupation. In other words, it permits the Equity casting agreements to continue operating; and I will not go over that argument again. If these two concessions are not made, the bogus employer will flourish, to the detriment, first, of the performers and, secondly, of the public. This, combined with the unstoppable flood of new entrants, will bring down, in months rather than years, the reputation of the British performing arts from the high place they now enjoy, and will bring great hardship to all performers. With the support and assistance of the more far—sighted managers in the theatrical industry, Equity has beaten out from the jungle an area of civilisation. The new clause seeks to restore to Equity the tools without which British artistic excellence and material success could not have been achieved; and without which it will not long remain.

12.45 a.m.

LORD DRUMALBYN

I agree with the noble Lord that his meaning in the proposed new clause is clear, which is a great advantage.

LORD SHACKLETON

It is better than the Bill in that respect.

LORD DRUMALBYN

I was going on to say that he will recognise that because something is clear, it does not mean that it is suitable to be put into a Bill. The difficulty is in the provisions which the noble Lord mentioned: that the Council shall have power to regulate the number of new entrants into that area of employment or into part of that area of employment. The noble Lord's conception is of employers and trade unions entering into agreements for certain purposes which are, first, establishing a Council and, secondly, to provide that all employers in that area of employment shall be required to conform to the reasonable rules of the Council;

  1. (c) all workers shall be subject to the regulations of such Council; and
  2. (d) such rules and regulations may provide that the trade union and its members shall not take strike action officially …"
I suppose that is a kind of quid pro quo for the number of new entrants. These are powers which, if they were developed on various bodies, would be subject to the very closest supervision by the Privy Council, or whatever it might be, in the normal way.

While the powers the noble Lord has suggested might easily fit the industry of which he is a distinguished member, it does not follow that they would be generally suitable. We think that the provisions we have made in the Bill will cover the needs without this kind of arrangement, which would be very much of the order of an extended closed shop; a kind of arrangement we do not wish to see, except after the closest supervision and examination before approval. The noble Lord's idea is ingenious but I am afraid it will not fit into the Bill.

LORD ARCHIBALD

Would the noble Lord be any more receptive to the proposed new clause if it referred to a Council with an independent chairman?

LORD DRUMALBYN

Here we are dealing with the regulation of rights. In a Bill which sets out legal rights and duties, it is difficult to introduce a concept of independent bodies set up statutorily without any apparent responsibilities. It is possible for councils of this kind to be formed voluntarily, subject always to the law. Here the proposal is that they should be formed and given certain powers to make regulations, and so on, by which everyone will be bound, but they have no real corresponding duties. This may contain the germ of an idea but it has not been worked out to the point at which the clause could be incorporated into the Bill.

BARONESS WHITE

It may not have been worked out in such a way that it could easily be included in the Bill, but as I understand it—I am subject to correction by my noble friend—what he is really trying to insert into the Bill is a description of what actually happens, and has happened over a number of years. My noble friend referred to the London and provincial theatre councils. I gather that the London Theatre Council was established many years ago, with the great encouragement of the late Oliver Stanley, known I am sure to some members of your Lordships' House, who took an interest in this—he was at that time Minister of Labour. From that has grown this organisation of councils, which has helped to regulate the industry in the way which has been described.

Although I can understand that the noble Lord may not find it easy to insert the new clause into this Bill, I think one should take account of the fact that, not only in respect of the matters that we were discussing on earlier Amendments, but in other respects, these councils really have done an extraordinarily good job in helping to keep some sort of order in an industry which perhaps by its very nature does not naturally take to order. One of the provisions, as I understand it, is that under the present council the managers and the artistes reach agreements whereby, inter alia, neither the union nor its members may take any action to impede or endanger the production or run of a play. That surely is a most important contribution to industrial peace and to good order in the entertainment industry.

Therefore, just because this clause as it is now put before the House is not very easy to fit into the Bill, I do not think one should dismiss so lightly bodies which have done extremely good and admirable work. Could the noble Lord perhaps enlighten us? Would it be possible, apart from the one matter in paragraph (e), for all the rest of the activities of the councils to be carried on legally once this Bill is enacted?

LORD DRUMALBYN

What this clause says is: …it shall be lawful for an employer or an association or associations of employers or an organisation or organisations of employers to enter into an agreement with a trade union or trade unions and such agreement may provide that the employer or association or associations of employers or organisation or organisations of employers and trade union or trade unions as the case may be and all constituent members of such bodies shall agree to enter into a contract or contracts under the terms which—". The noble Baroness has put a question to me off the cuff. So far as I can see it would be in order for the councils to make contracts of this kind, but one would have to look very carefully at the indivdival provisions to make certain that they did not infringe any Act of Parliament in any way. What I did say earlier was that it is one thing for unions to get together and do this sort of thing without legal provision; it is quite another thing to give statutory authority to them. If you are giving statutory authority to them it is presumably because you want to give them powers which would conflict with some other statutory duty. The noble Baroness then mentioned (e), and there at least it would appear that there is a conflict with the statutory duty.

LORD ARCHIBALD

For the second time I have to confess that I am disappointed at the reply from the noble Lord, Lord Drumalbyn, particularly because in the past he has been so helpful. He has already accepted two Amendments from me and I was hoping that to-night he would enable me to do the hat trick. However, he has not been helpful and I am afraid that we must press this Amendment to a Division.

LORD SHACKLETON

May I ask the noble Lord once again: can he make no gesture to my noble friend? I see that some Liberal Lords had their names to this Amendment. Perhaps it was to them that the noble Lord, Lord Belstead, was referring when he spoke of noble Lords wishing to keep the Committee late at night, because they do not seem to have contributed at all to what seemed to be their own Amendment. I thought that we were discussing a Bill, but we seem to be discussing a sacred cow. Cannot we get the Government to move on this? Cannot the noble Lord even offer to consider this, even if the noble and learned Lord the Lord Chancellor, who has now moved to the elder statesmen's Benches, is getting a little disturbed? It is the Government who are keeping us here, not the Opposition.

LORD DRUMALBYN

The problem here is quite simple. There is nothing in the Bill to prevent Equity continuing to operate as they do now in a way which regulates the number of entrants into the acting profession, provided the regulations are not based on union membership. Nor will the Bill in any way discourage voluntary councils from establishing standards to be applied to and to be applied by those who are represented on the councils. What we cannot accept is the right of councils to bind those who are not parties to the agreements reached by the councils. This is what we cannot accept. I hope that the noble Lord will not press his Amendment to a Division. He has not given us long to consider this Amendment. If he would like it to be considered further at greater leisure, we will certainly undertake to do that without, of course, any commitment whatsoever. Perhaps in these circumstances the noble Lord will not press his Amendment.

LORD ARCHIBALD

On the undertaking just given by the noble Lord, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Schedule 1 [Provisions as to certain closed shop agreements]:

1.0 a.m.

LORD HENLEY moved Amendment No. 135A:

Page 122, line 15, at end insert: .—(1) Where one or more trade unions has made a proposal to one or more employers or an employers association or organisation of employers for an agreement which if made in accordance with proposals approved by the Industrial Court under this Schedule would be an approved closed shop agreement and the employer or employers or employers association or organisation of employers has refused or failed to enter into such agreement, the said trade union or trade unions may make an application to the Industrial Court under this part of this Schedule for the approval of such an agreement and in such a case the Industrial Court and the Commission shall deal with such application as though it were a joint application under paragraph I of this Schedule. (2) Where the Industrial Court makes an order in respect of such application under paragraph 4 or paragraph 14 of this Schedule then the proposals embodied in the draft agreement shall be binding upon the employer or employers or employers association or organisation of employers (as the case may be) in every respect as though such draft agreement had been made between the trade union or trade unions concerned and the employer or employers association or organisation of employers concerned and as if it were a closed shop agreement within the meaning of section 16 of this Act.

The noble Lord said: I rise to move this Amendment on behalf of the noble Lord, Lord Archibald, who says that he is old and confused. He certainly is not confused and I do not believe he is very old, either. I also move it on behalf of my noble friends, who, after their arduous intervention earlier on, have moved.

LORD BELSTEAD

Before the noble Lord continues, can he say whether he is going to take any other Amendments with this one?

LORD HENLEY

No; I am going to take this one alone, and if I get no satisfaction I will press it to a Division. The purpose of the Amendment is to enable trade unions to make unilateral application for a closed shop where an employer or employers' association unreasonably refuses to join in making such an application. It will be rioted that it is only an application, and the criterion of having a closed shop accepted are so rigorous that an application can perfectly well be rejected. I should also like to remind your Lordships that where it appears that a closed shop is a desirable thing to have, Equity—and this in no small measure concerns Equity—has operated one to everybody's satisfaction for many years. The argument on Lord Archibald's earlier Amendment, No. 113A, was not about whether Equity should have a closed shop, but how to ensure within the framework of the Bill that it could go on offering a closed shop in the way it has done so successfully and to everybody's satisfaction for forty years.

The present provisions of Clause 16 and the Schedule are not good enough in this respect. This was mentioned by my noble friend Lord Beaumont of Whitley on Thursday last when he spoke to Amendment No. 44. First of all, I think it is unfair that the union cannot exert any pressure upon the employer here. Secondly, it seems to me that the question of the ballots is not fair. The employee cannot compel an employer or association of employers to join in putting the problem before the Commission and the Court. On the other hand, the employer can, if he so manages it, destroy a closed shop by the use of the ballot. The effect of this is to give an unchallengeable veto to the employer, and this veto is entirely one-sided. The possession of this one-sided veto by the employers, either collectively or by an individual employer, seems to me to be an unfair weapon in relation to the general collective negotiations. There is a great danger of the closed shop in this particular industry being abandoned, first of all, by disreputable managers, and then, because they are inevitably driven into this position, by other managers as well.

I think I mentioned at the beginning of my speech that the Commission have to be satisfied that the very tough criteria in Schedule 1 are met, and there is no good reason why it should be made impossible for the union to make a unilateral application for opportunity to prove the existence of the facts that make a closed shop necessary. As I have said, it is an application, and it has to be proved. It seems reasonable that it should be possible to enforce an application on the employer. I think it is recognised, so far as Equity is concerned, that it does rely very much on the closed shop, and there should not be an entirely one-sided state of affairs where the employer can avoid even the application. I beg to move.

LORD STOW HILL

May I supplement what has been said by asking one question of principle? If one is dealing with an agency shop agreement, the procedure which is now contemplated by the proposed new clause is allowed. Under Clause 10(2) of the Bill a union can ask for an agency shop agreement without the co-operation of an employer, and indeed, despite his opposition. Clause 16 and Schedule 1 envisage only a joint application by unions and employers. I should like to ask the noble Lord, Lord Drumalbyn, why the distinction? It may be said that the closed shop agreement invades rather more drastically the principle for which the Party opposite contend; namely, that Clause 5 (1) (b) should be sacrosanct, subject to limited intrusion. When one looks at the complicated procedure set out in Schedule 1, and takes into account the stringent requirements contained in that Schedule, and the degree of proof that must be furnished before an approved closed shop can be obtained by going through the procedure envisaged in Schedule 1, I would submit to the Government that there is not sufficient reason to draw the distinction between the facilities afforded to a union to ask for an agency shop agreement, despite the opposition of an employer, and the procedure whereby an approved closed shop can only be asked for with the co-operation of both. The new clause at present before your Lordships is designed in effect to equate the two positions.

The submission I would make to the Committee is that if you consider the nature of the two agreements which are contemplated both by Clause 10 and Clause 16, the degree of difference between them does not warrant the radically different procedure which has to be followed before either of them can be obtained. There is strong reason to adopt the new clause which can be supported by argument which is difficult to resist.

1.7 a.m.

LORD BELSTEAD

This Amendment is to facilitate the approval of closed shop agreements by enabling the application to be made by one party to the agreement only. It is our firm intention to approve closed shop agreements only when the Commission is fully convinced, having investigated the circumstances, that the criteria set out in the Schedule are satisfied, and that an agency shop agreement would not be equally satisfactory. This is because we believe that only in the most exceptional circumstances should such an agreement be approved. Also, if we are to have stable industrial relations, it must only be approved where both sides of the industry are equally convinced of the necessity. We are opposed to unilateral applications. The noble Lord, Lord Stow Hill, has referred to the balnace between the agency shop agreement and the closed shop agreement which we are studying at the moment. It is true that the draft agreement will require both sides to agree. The Bill deliberately distinguishes between the closed shop and the agency shop in the way that the noble Lord, Lord Stow Hill, has pointed out and asked the question. The reason the Bill is drawn in this way and the Government take the view they have is not only because we realise the gravity of the situation when a closed shop agreement is to be formed, but that we have been told many times—and the Government were told in another place—that in closed shops both sides invariably desire the closed shop situation.

We feel that in drawing the Schedule in this way we are not doing something which will militate against closed shop agreements. That was not the advice given in another place or on Second Reading in this House. We are moreover, opposed to agreements being imposed upon all employees in any particular field because it is important to ensure that when such important obligations are being imposed as will be necessarily be imposed by a closed shop agreement, it would only result from an agreement entered into freely.

Listening to the noble Lord, Lord Stow Hill, one further thought came to my mind. We often refer—it has certainly been referred to in another place—to the vital need to protect workers, the third partner in industry, when on occasions management and trade unions for their part decide that they wish to form a closed shop agreement: that is the moment when it is so necessary to make sure the third party is protected. But, under these Amendments, employers who were not parties to the agreement and their workers could well find themselves hound by terms to which they had never consented.

There was just one other joint which arose from the speech of the noble Lord, Lord Henley. The noble Lord criticised the balloting provisions in the Schedule. I confess that I did not follow the noble Lord on this point, and I am not armed with an answer for him. If he would care to elucidate what it was he was getting at, perhaps we could draw this to a conclusion.

LORD HENLEY

I would be only too pleased to spell out exactly what I meant. There is no provision in the Schedule by which the union can secure a ballot, the outcome of which could be to compel the employer, or organisation of employers, to join in bringing the problem before the Commission and the Court. On the other hand, provision is made by which the ballot procedure can be invoked in order to destroy a closed shop agreement which has been established and approved. That is in terms what I meant by saying that I felt the ballot procedure operated unfairly.

THE EARL OF DUDLEY

I rise briefly to support the Government on this. The point here really is that any closed shop, by its nature, must carry with it an exclusion threat; and because of the exclusion threat, and because of the consequences that an exclusion threat can carry for an individual worker, the highest degree of consent must be required between all parties before an agreement can be made which carries such a practice with it.

LORD HENLEY

I entirely agree that very special obligations are put upon an employer in this case, and therefore very special circumstances only should apply to the closed shop being granted. But the criteria are so very tough that I should have thought that this point was met. All one is asking for here is that it should be possible to make an application. The application can be turned down.

BARONESS WHITE

I feel we should press the Government a little further on this. As the noble Lord, Lord Henley, has very rightly pointed out, in the Schedule which we are about to come to, the most stringent conditions are laid down before consent would be given to the establishment of a closed shop. Noble Lords will have studied Part I of the Schedule, which makes it perfectly plain that it is going to be no easy matter to obtain the establishment of a closed shop. As the noble Lord, Lord Henley, and my noble friend Lord Stow Hill have pointed out, what we are really asking for is that the employer should not have an absolute veto, which is what he has at the moment—a complete veto—on a union asking that the Industrial Court should be able to refer the matter to the C.I.R. The Commission cannot examine it; they have no right, as I understand it, even to look at the matter, or even to consider whether a possible closed shop might be appropriate, unless there is, as it were, a dual application. In other words, however strongly a union may feel that in their particular circumstances, in their particular industry, there was a good case for a closed shop, a case cannot even be examined unless the employers also are in complete agreement.

It might possibly be that the Industrial Court and the Commission would come to the conclusion, after examination of the case, that it was not good enough; that it did not fall within the criteria set out in the Schedule. In that case, of course, they would obviously refuse the application. But they cannot even look at this at the moment unless the employer also is in agreement. In most cases we would assume that the employers and the unions would be in agreement, but we do not feel that the difference between an agency shop and a closed shop—although it is a significant one— is so great that one should eliminate from the provisions for the closed shop the possibility of a union trying to put its case and having it examined, even though the employers might not be in complete agreement. We feel this is really putting a constraint on the unions, and putting a rather unfair weapon of complete veto in the hands of employers.

LORD DRUMALBYN

I think we can narrow the point of disagreement quite easily, because we feel that in the special circumstances of the closed shop it is not right to force the closed shop on an employer, or indeed on a union, against his will.

LORD HENLEY

Will the noble Lord allow me? We are not asking to force it, but to apply for it to be considered.

LORD DRUMALBYN

But this is not logical, because if you are not forcing why not have a joint application to start with? It is only in the case where one side or the other—say, where the employer is reluctant to have the case for a closed shop examined—that such an application would be made by the trade union, and obviously the effect of that would be that, assuming that the C.I.R. after examination recommended that there should be a closed shop, then in that case it would be forced on the employer, and we do not think this is right.

In any event, as the noble Baroness, Lady White, has said, in the sort of case that has given rise to the special provisions there has been pressure from both sides of industry for this to be done. She is right about that. What she is saying in effect is that there may be some other industry coming along where the circumstances are not the same; but we believe that it should be difficult, and the gateways should be narrow for this particular purpose, and we do not think it is right to force a closed shop on unwilling parties.

CONTENTS
Archibald, L. Donaldson of Kingsbridge, L. Shackleton, L.
Bernstein, L. Greenwood of Rossendale, L. Shepherd, L.
Brockway, L. Henley, L. Stow Hill, L.
Burntwood, L. Hoy, L. Strabolgi, L. [Teller.]
Champion, L. Hughes, L. Wells-Pestell, L.
Davies of Leek, L. Llewelyn-Davies of Hastoe, Bs. [Teller.] White, Bs.
Delacourt-Smith, L.
Diamond, L.
NOT-CONTENTS
Aberdare, L. Ferrers, E. Mowbray and Stourton, L. [Teller.]
Ailwyn, L. Ferrier, L.
Balerno, L. Fraser of Lonsdale, L. Napier and Ettrick, L.
Balfour, E. Gisborough, L. Nelson of Stafford, L.
Bathurst, E. Goschen, V. [Teller.] Pender, L.
Belhaven and Stenton, L. Gowrie, E. Rankeillour, L.
Belstead, L. Gray, L. Redesdale, L.
Boston, L. Gridley, L. Redmayne, L.
Bradford, E. Grimston of Westbury, L. Rochdale, V.
Brooke of Cumnor, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) Ruthven of Freeland, Ly.
Brooke of Ystradfellte, Bs. St. Aldwyn, E.
Carrington, L. Harvey of Tasburgh, L. St. Helens, L.
Chelmer, L. Hives, L. St. Just, L.
Chesham, L. Jellicoe, E. (L. Privy Seal.) St. Oswald, L.
Clitheroe, L. Kemsley, V. Sandford, L.
Colville of Culross, V. Killearn, L. Sandys, L.
Conesford, L. Kilmany, L. Somers, L.
Cowley, E. Kinnoull, E. Strange, L.
Cranbrook, E. Lansdowne, M. Strathcarron, L.
Croft, L. Latymer, L. Stratheden and Campbell, L.
Daventry, V. Lauderdale, E. Thomas, L.
Denham, L. Lothian, M. Tweedsmuir, L.
Digby, L. Luke, L. Tweedsmuir of Belhelvie, Bs.
Drumalbyn, L. Mansfield, E. Vivian, L.
Dudley, E. Massereene and Ferrard, V. Wigram, L.
Dundee, E. Merthyr, L. Windlesham, L.
Elliot of Harwood, Bs. Monk Bretton, L. Yarborough, E.
Falkland, V.

Resolved in the negative, and Amendment disagreed to accordingly

1.26 a.m.

LORD DELACOURT-SMITH moved Amendment No. 136: Page 122, line 16, leave out ("Industrial Court") and insert ("Commission on Industrial Relations").

The noble Lord said: As the Committee will have observed, it has not been the practice, from this side of the Committee, to move Amendments which have been substantially covered in the terms of the clause, but I wish to move Amendment No. 136 because this is the first of a group of Amendments which include Amendments Nos. 137, 138 and 139. If

1.18 a.m.

On Question, Whether the said Amendment (No. 135A) shall be agreed to?

Their Lordships divided: Contents, 20; Not-Contents, 80.

noble Lords will look at the Schedule and relate the Amendments to the text of the Schedule they will see the point which we are endeavouring to establish.

In the first place, we are seeking to substitute the "Commission on Industrial Relations" for the "Industrial Court" and we are then suggesting that the Commission shall not entertain any application in respect of a draft agreement if it is made before the end of a period of six months, beginning with the date at which the previous application was made in respect of the workers proposed to be covered. And we are further proposing to omit subsection (3)(b). I think this is consistent with the view we have expressed previously, that what we wish to do is to simplify the consideration of this matter; to place it in the hands of the Commission and to shorten from two years to six months the period which must elapse after any previous application, under this Schedule, of this character has been made, and to omit, as I say, the provisions which at present appear in subsection (3)(b). I beg to move.

THE LORD CHANCELLOR

I do not know how this Amendment has come to be moved rather than one of the others, because if one looks at the Schedule, page 122, line 16, one finds that, at a stage at which it is wholly inapposite to do so, the noble Lord is suddenly in the middle of things trying to take out the Industrial Court and substitute the Commission on Industrial Relations, when clearly under Schedule I and Schedule 2 the Industrial Court is already seized of the matter. As a mere matter of drafting, clearly it would not do.

Looking at the substance of the matter, as I have tried to follow it from the noble Lord's speech, I do not see anything to differentiate this Amendment, in principle, from one which we discussed some time ago, in which quite clearly a difference emerged between the two sides of the Committee. We believe that the Industrial Court has a function, and the Opposition do not. We also believe that that function, being judicial, is different from that of the Commission of Industrial Relations, which has an advisory purpose to deal with matters of policy. I cannot see anything to differentiate this Amendment, in principle, from the one negatived some time ago in which a similar attempt was made to substitute the Committee of Industrial Relations for the Industrial Court.

LORD DELACOURT-SMITH

There is perhaps some misunderstanding here. I rose to move Amendment No. 136 because it seemed to me necessary to do so to make sense of the sequence of Amendments to which I referred. The noble and learned Lord is right in that, if one looks at Amendment No. 136 alone, it is an issue which we have examined and on which a decision has been reached. But if one looks at the other Amendments in this sequence, and in particular at No. 138, this is not a point to which attention has been directed.

THE LORD CHANCELLOR

I was just coming to that. I had not quite understood from the noble Lord's speech that he recognised so plainly that No. 136 wins inappropriate. This brings me to the second part of the Amendment, which would reduce the period of stability from two years to six months. I detect there an extraordinary inconsistency between the attitude taken by the Opposition some two or three hours ago over the period of stability after the initiation of an agency shop and after the failure of an attempt to upset an agency shop, and the period of stability which is now proposed. The whole case argued from the Opposition Benches two or three hours ago was that two years was much too short a time, because it would cause a constant period of unrest; now it is said to be much too long, and the noble Lord wants unrest every six months. I think the two years period is just about right, and I hope the Committee will take the same view. There is a certain virtue in consistency. The Opposition have not achieved it, but we have.

LORD DELACOURT-SMITH

If I may say so, this verges almost on a debating reply which we have had from the noble and learned Lord, because the two cases are completely different. The previous case to which he was referring was one in which we were deprecating the idea of upsetting, in a short period, arrangements which had been made for an agency shop, in the case to which the noble and learned Lord is referring. We were saying that once an agreement had been reached to set up some stable form of industrial relationships, this should not be called into question until it had been in existence for a fairly long period of time. Here we are dealing with a fundamentally different situation. We are dealing with a situation in which consideration has been given to an application that has failed. The more highly organised system of industrial relations has not been established. We are saying that the fact that this application has failed should not debar consideration of a further application for a period as long as two years. We say that in that case, when it is a question of considering whether there should be a more developed form of industrial relations, the two-year period should be shortened to six months.

On Question, Amendment negatived.

LORD DELACOURT-SMITH moved Amendment No. 140: Page 122, line 32, leave out paragraph 4.

The noble Lord said: This Amendment is consistent with our approach to this matter, and we are moving to exclude paragraph 4 because it includes a reference to the Industrial Court. I beg to move.

THE LORD CHANCELLOR

This Amendment really only raises the point which we were debating earlier. I recognise in this case the noble Lord's consistency and I hope that he will recognise mine.

LORD DELACOURT-SMITH

I am very glad that we have reached a situation of mutual recognition of consistency. However, I do not propose to carry it to the point which the beginning of the noble and learned Lord's intervention on the earlier Amendment almost tempted me to do, of moving every one of our Amendments in order to demonstrate our complete consistency. In these circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

1.37 a.m.

LORD STOW HILLmoved Amendment No. 140A:

Page 122, line 32, after ("3") insert ("and paragraph 27")

The noble Lord said: This Amendment would have the effect of adding the words "and paragraph 27" after the words "paragraph 3" in the first line of paragraph 4 of the Schedule. That sounds rather cryptic and mysterious and will remain so unless I tell your Lordships what paragraph 27 would be. If it is to the convenience of the Committee, perhaps I may discuss with this Amendment No. 191A which contains the text of the new paragraph 27 which we seek to insert at page 127 after line 42. In other words, that would be the new paragraph 27 and, if it is to your Lordships' convenience, I will indicate the purpose of that new paragraph. If one looks at the agency shop, the position as it is left by Clause 5(1)(b) and Clause 10, as I understand it, is that where when the Bill comes into operation there is in existence an agency shop, it will remain in existence; and I think the Government spokesmen indicated not long ago their concurrence in that view. Then, under Clause 10, the necessary application can be made for an agency shop should the circumstances be appropriate, and the matter proceeds in that way. The situation is wholly different when one is considering the closed shop.

May I go back to the speech of my noble friend Lord Delacourt—Smith and his description of the situation in the dyeing industry? There, he told us, there is a closed shop in existence, and it has been in existence for some 24 years. That is a situation which can be found in different forms throughout industry. There are at the moment a large number of closed shops. They have conduced to great stability in industry and have served their purpose very admirably; and still do so. As I read the Bill and, again, the effect of Clause 5(1)(b), the wording produces this result. In that dyeing industry—and indeed in all other industries and sections of industry where there is now in existence a closed shop—when this Bill comes into operation, or the appropriate clauses are brought into operation by Order in Council, the effect will be that those closed shops will immediately become unlawful, and any employer who seeks to implement them will be committing an unfair industrial practice if he acts in accord with their terms. They become unlawful agreements and must be discarded.

Clause 16 provides the procedure whereby an approved closed shop can be brought into being. Examining the provisions of Schedule I which sets out the mechanism of the procedure, one sees that these are very complex. A great deal has to be proved by the joint applicants for the closed shop and it will take a considerable time. I have only to refer to paragraph 7(2) which provides that when a favourable report is received by the Industrial Court from the Commission the Court has to specify a time "not being less than one month", or it may be as much as three months, during which application can be made for a ballot to be held. There is a lapse of some months. The Commission's inquiries must take a considerable time, and before an approved closed shop can be made part of an order of the Court, a very considerable time must elapse. The result is that all these closed shops, which are working well, and are fully understood and accepted by both parties spreading over a large part of industry, having been in operation for many years, may suddenly, when the Bill comes into operation, become unlawful. They cannot be replaced by an approved closed shop agreement until a considerable time has elapsed, unless the joint parties to the application have measured up to the high standard of proof required by the provisions of Schedule 1; and then they may not succeed.

The new paragraph which I seek to insert into the Schedule, and for which the Amendment that I am now moving paves the way, provides for the making of an interim order. If noble Lords look at page 14 of the Marshalled List they will see that it operates in the first place where there is in existence a closed shop; where there has been a closed shop for some time—for instance, in the dyeing industry situation described by Lord Delacourt—Smith. Where a closed shop is in existence, both parties—the employers and the trade union—may approach the Industrial Court and ask, as a kind of measure to preserve the situation, for an interim order to perpetuate and to continue the lawfulness of the existing closed shop until the Court can finally pronounce on the question of whether there should be an approved closed shop in pursuance to an application in that behalf by the joint parties.

If the application is made for an interim order, the same procedure must be gone through. The interim order can last only a specified time. It will be seen in the last paragraph that the interim order shall expire at the end of one year unless by that date a joint application has been made; so if the Court thinks it appropriate, the procedure in so far as it can be gone through in the appropriate time having been gone through, it is directed that there should be an interim order. It lasts for one year in order to give the parties the opportunity of getting together and mobilising their evidence and equipment to lay the foundation for an application for a permanent approved closed shop. This procedure would have the result that, instead of the existing closed shop coming to an end, it would be perpetuated, or perpetuated, perhaps, after a very short interval of time necessary to allow for the making of the application for the interim order and for the making of the interim order by the court. The existing closed shop would then remain in existence for a year unless and until an application was made, in accordance with Schedule 1, by both parties for an approved closed shop. That would secure a continuity of the existing situation, in which there is now a closed shop, up to the time when a decision could finally be taken by the Court as to whether it would direct that there should be an approved closed shop.

The object of the paragraph is to eliminate what might be a disastrous hiatus in time from the time when, on the passing of this Bill, the existing closed shop becomes unlawful, until a decision can finally be taken by the Court—perhaps many months later; perhaps even longer than that—as to whether the existing circumstances justify the making of an approved closed shop order.

I respectfully submit to both sides of your Lordships' Committee, and to all three Parties concerned, that in making that proposal I am not making a proposal which in any way conflicts with the thinking of the Party opposite; and it is, I should have thought, wholly in accord with the thinking of both the Liberal Party and my own Party. We on this side of the Committee all take the view that these closed shops are extremely valuable, and we are really appalled at the idea that they can be wrecked, as it were, by a stroke of the pen, on the passing of this Bill. We regard it as really disastrous that that should be the situation. Once they are gone, it may be difficult to revive them, and a long time will have to elapse before that is necessary. I should have hoped that the Party opposite might say that it certainly does not infringe their own views about the necessity for preserving a freedom of choice, in terms of Clause 5 of the Bill, if what is done is simply that the Court is enabled to keep the status quo until a final decision is arrived at as to whether closed shop in terms of Clause 16 should be brought into being. I beg to move.

1.47 a.m.

LORD DRUMALBYN

I very much appreciate the clarity with which the noble Lord has moved his Amendment: it is very clear indeed. But the difficulty, of course, is that he is starting from a totally different point of view from that of my right honourable friend the Secretary of State. The concept of the Secretary of State when he had Clause 16 and Schedule 1 written into the Bill was that the closed shop should be a wholly exceptional institution and that the agency shop, which was originally envisaged, should be the main form of this kind of collective bargaining arrangement. The noble Lord is concerned, I think quite rightly, that there should not be a hiatus. The question is, of course: a hiatus between what? We envisage quite clearly that most of the existing closed shops, whether pre-entry closed shops or post-entry closed shops, will be re-negotiated as soon as the Bill passes. This would be the sensible thing to do. Everybody with closed shop arrangements will appreciate whether or not they are likely to have any chance of passing through the gateways that are laid down in the Schedule. If they are not, and if agreement between the two sides cannot be obtained at that stage of application for a closed shop, then obviously the right thing for them to do is to negotiate an agency shop agreement. As I mentioned at an earlier stage, there is evidence that agency shops are already replacing closed shops where closed shops fall due to be re-negotiated just now, before the Bill becomes law, and one would expect this to continue, because firms will take notice of points proposed to become law and will make their preparations.

The noble Lord knows that there will be a gap between the time when the Bill becomes law and the time when the first Part of it comes into operation. As was said earlier, there will be a further interval before this Part of the Act comes into operation; so there will be a reasonable time for new arrangements to be made on a voluntary basis between the two sides. It seems very unlikely indeed that where closed shops are now in existence an employer will resist their replacement by agency shops; so one need anticipate little difficulty there. Where there is resistance, there will inevitably be a hiatus and the trade union will have to take the matter to the Industrial Court for examination as to the setting up of agency shop agreements. The hiatus is unlikely to arise, but we are looking at the possibility. We expect to be able to take such measures as will ensure that it will be unlikely to arise in any particular case. I cannot announce details of those measures now, but I should like to express gratitude to the noble Lord for having moved this Amendment with great clarity and for giving me the opportunity of bringing out the way in which we hope to deal with this matter.

On Question, Amendment negatived.

1.54 a.m.

LORD STOW HILL moved Amendment No. 142A: Page 122, line 41, leave out ("as mentioned in section 1(1)(c) of this Act").

The noble Lord said: this particular Amendment, which again looks rather mystic in form, is really of a probing nature in order to invite discussion and attention concerning some aspects of Schedule 1. The actual words which the Amendment seeks to leave out are to be found in line 41, paragraph 5(1)(a). These words have been chosen for the purpose of the Amendment to enable me to draw the attention of the Committee to what has to be proved before any headway at all can be made towards the attainment of an approved closed shop agreement. I do not think any useful purpose would be served by reading out sub—paragraphs (a), (b), (c) and (d). When one looks at sub—paragraph (a) and sees there the reference to Section 1(1)(c) of the Act, one recalls the whole argument about the code of conduct which is to reflect the provisions of Section 1 but which has not yet been before us.

I do not wish to take up time by repeating the complaint made about our having to argue about that in the dark. That is now reproduced in paragraph (a). Let it be assumed that an application in form has been made to the Industrial Court. The application complies with the first three paragraphs of the Schedule and the Court refers the matter to the Commission. The Commission then has to ask itself whether it is perfectly satisfied that it is necessary for those workers to be comprised in an approved closed shop agreement for the purposes of (a), (b), (c) and (d). It does not stop there. Having looked at the paragraphs the Commission then has to look at subsection (2) of paragraph 5 and consider whether the purposes specified in paragraphs (a), (b), (c) and (d) could not be equally satisfactorily achieved by an agency shop. Having done that it has to draw up a report for the Court announcing whether it is affirmatively satisfied with regard to all 'those matters. If it cannot so report to the Court, nothing more is done.

This is an enormous volume of proof to undertake. How is the Commission to operate? Is it to summon witnesses? How on earth is it to answer the questions? Does it proceed to go into the numbers of the members of the union who are availing themselves of the right to pay a contribution to the union without being members of it? Is it to ask them individually what are their motives and how deep are their convictions, and whether they would be prepared to join in a closed shop? This sounds to me the sort of thing which in the olden days would have been embodied in a large brief with a fat fee, and lawyers would be delighted about it. But this has to be done before the Commission can get to work to prepare its report. How is the Commission to know whether it is satisfied as to those five matters? Suppose it looks at the dyeing stuff industry about which we were told by my noble friend Lord Delacount-Smith. In that case the information would be that a dosed Shop was in existence, and had been for many years, and was working very well. How on earth can the Commission say whether the same result could have been achieved by an agency shop?

That is one possibility. The other possibility, I suppose, is that the Commission, in so far as that part of its inquiry is concerned, merely rubber-stamps. It does not make any real inquiry; it just makes a rough guess; it makes a hit-and-miss assessment of the situation which is really abolutely valueless. I should have thought that if the latter was the case these provisions in the Schedule are utterly valueless. They might just as well not be there. All they will do is puzzle people; puzzle those who want to make the application, and puzzle the members of the Commission until they accommodate themselves to the situation, if that is to be the situation, that what they are really to do here is rubber—stamping, to make no real inquiry at all. It is in order to direct attention to that aspect of this Schedule that I have put down this Amendment.

It is erecting a mountain of proof which cannot be scaled. I should have thought that in answering the questions it has to ask itself the Commission would say, "We have not the remotest idea of the answer and we cannot find out. It is pure speculation and as probable as not that the answer would be 'Yes ' or ' No' in each case." The Commission will have the advantage of seeing the code of practice which we have not seen, bat I apprehend that the Commission would take a long time over this, and as often as not would have to say, "We do not know what is the answer." If that is what the Commission says, it is an end to the application. In that event the Schedule directs the Court to take no further steps.

I should be grateful if the Government spokesmen could at least give their estimate as to what is likely to happen. Is this to be an automatic process, completely without significance? Are these words really all waste? Is it simply verbiage and no more? If it is not verbiage, how is the Commission to address itself to the task? How real is to be its inquiry? What sort of evidence is it to take? How on earth is it to answer the question as to whether an agency shop would or would not be just as satisfactory to achieve these objectives? The Amendment is put down to obtain an answer to those questions, because I would respectfully submit to the Committee that in its present form paragraph 5 of the Schedule is utterly unsatisfactory. It either imposes an encumbrance which will block a large number of these applications, or, if it does not do that, it is utterly and absolutely valueless and should be discarded.

LORD DRUMALBYN

It is perhaps a little difficult to relate the noble Lord's remarks to the peg on which he has hung them. But I do not complain of that: he has obviously wanted to get information from the Government about how it is expected to proceed on paragraph 5, and this seems as good a peg as any for the purpose. The noble Lord asks how the Commission is going to proceed. He will of course have studied the provisions regarding the Commission, as to what it does, when it makes inquiries and so on, on page 137 of the Bill. The Commission is well accustomed to doing things which the noble Lord and I are not accustomed to doing; that is, to look into the affairs of trades unions from various points of view. The Commission has great experience of this, and it will probably be able to make judgments of this kind, which I suspect would be quite beyond the noble Lord, and certainly would be beyond me. It also has full latitude to make inquiries, attitude surveys, Gallup Polls, opinion polls and all the rest, in the area, as well as in the area proposed to be covered by the agreement, and the right to receive direct evidence from those immediately concerned, those representing the unions and the employers and the like, and to assess the kind of question that it has to assess.

It seems to me that the questions the Commission has to examine do coincide to some extent, at any rate, with the provisions of Clause 1(1) of the Bill, but in any case these seem to be the main points that it would be right for it to examine whether it is necessary for those workers to be comprised in an approved closed shop agreement for the purposes … f enabling them to be organised, or to continue to be organised, in such a manner as mentioned …"; that is, so organised as to be representative, responsible and effective bodies for regulating relations between employers and workers, of maintaining reasonable terms and conditions of employment, reasonable prospects of continued employment for those workers."— That is well within the scope of judgment of the Commission, and of promoting and maintaining stable arrangements for collective bargaining … That is exactly the sort of thing the Commission will be doing in other parts of its inquiries. The last point mentioned is of preventing collective agreements relating to those workers, which have been or may thereafter be made by the applicants, from being frustrated. The Commission will have to look into all this sort of thing.

As to the last point, in sub—paragraph (2): whether …he purposes specified in the preceding sub—paragraph could not reasonably be expected to be fulfilled by means of an agency shop agreement, if the Commission cannot answer that, certainly nobody else would be able to do so, because, as I have said, it will be highly specialised in this. I do not think that the concern of the noble Lord is justified in this case but I understand why he has raised the matter and I hope that to some degree at any rate I have been able to satisfy him.

On Question, Amendment negatived.

2.6 a.m.

LORD SHACKLETON

I wonder whether I may interrupt. I had hoped that the noble Lord was going to rise to propose the adjournment of the debate. Though we have made no agreement, we have made progress and the Government are not far short of their target.

LORD DRUMALBYN

It looks to me as if noble Lords would like to have a debate on the next point and this is one of the reasons, as well as the clock, why they are thinking of adjourning now. We have made considerable progress and I hope that we shall be able to start fresh and be able to make good progress tomorrow. I beg to move that the House be now resumed.

House resumed.

EARL ST. ALDWYN

Before I move that the House do now adjourn, I should like to ask which noble Lords require taxis to give their names to the Head Doorkeeper. Every effort will be made to get taxis, but obviously we do not want to call a lot of taxis and not have them used.