Lords Sitting of 17 May 1971

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

METRICATION AND LINEAR MEASUREMENTS
THE EARL OF SELKIRK: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether a decision has been taken to convert our linear measurements to a decimal system.]
LORD DENHAM: My Lords, metric units of linear measurement and of mass or weight have been lawful in the United Kingdom since 1897. The current legislation, the Weights and Measures Act 1963, provides that the yard and the metre shall be the units of measurement of length by reference to which any linear measurement shall be made in the United Kingdom. The Government have no proposals in mind to vary these provisions.
THE EARL OF SELKIRK: My Lords, while accepting the principle of decimalisation, would not the Government be wise to explain a little more fully its detailed application in certain cases? If I may take one small example, in the Monthly Statistical Digest rainfall is given in millimetres, but almost all public records of rainfall are in inches. Would it not be wise to keep the two standards of measure for rather longer?
LORD DENHAM: My Lords, of course my right honourable friend will bear in mind what my noble friend has said. I should tell your Lordships that shortly a White Paper will be published which will set out Her Majesty's Government's future policy on metrication.
LORD SHACKLETON: My Lords, I may have missed this point. May I ask what the proposals are likely be with regard to geographical miles, which are an important device, as one geographical mile is roughly equivalent to one minute of latitude? This is a serious point for travellers and explorers, for hose who are accustomed to using maps and navigators. Do the Government intend to abolish knots as well?
VISCOUNT DAVENTRY: My Lords, does the noble Lord know it is a nautical mile he is talking about? Has he heard of a nautical mile?
LORD SHACKLETON: My Lords, a geographical mile is in fact the same as a nautical mile, but it is known as a

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geographical mile by most people. not a statutory mile.
LORD DENHAM: My Lords, if I can set the mind of the noble Lord the Leader of the Opposition partially at rest over this point, it is expected that, with a very slight modification, nautical miles will continue to be used in countries that use the metric system.
LORD CONESFORD: My Lords, would the noble Lord bear in mind that a knot is a unit of speed and not a unit of length?
LORD SHACKLETON: My Lords, it certainly is. But is the noble Lord aware that if you remove the unit of length you cannot, in fact, achieve a unit of speed? May I ask the noble Lord how he is going to modify a nautical, or geographical, mile " slightly "?
LORD DENHAM: My Lords, by a very small amount.

EDUCATION AUTHORITIES AND SCHOOL GOVERNORS' POWERS
2.38 p.m.
BARONESS PHILLIPS: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government to define the powers given to school governors and to explain how a local education authority can overrule a decision taken by the school governors as support for the action of the head-teacher.]
THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF EDUCATION AND SCIENCE (LORD BELSTEAD): My Lords, the respective functions of the local education authority, the governors of a secondary school maintained by an authority and the head teacher are defined in the articles of government made for each school under Section 17(3)(b) of the Education Act of 1944. The precise functions delegated to governors vary from one local education authority to another
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and this also depends in some degree on whether the school is a country or voluntary school. In general, subject to the local education authority's power to determine the general educational character of the school, the governors of a country secondary school have the general direction of the conduct and curriculum of the school.
The question whether a local education authority acted properly in overruling a decision of the governors of a particular school could be determined only in the light of circumstances of the case.
BARONESS PHILLIPS: My Lords, while thanking the noble Lord for that very full Answer, may I ask him whether this might be the moment to look again at the powers of the governors, if in fact we are to retain the high quality of people serving as governors?
LORD BELSTEAD: My Lords, I know that this is something which has exercised the minds of people in education, and I thank the noble Baroness for bringing it to my attention. I can assure her that I will convey her question to my right honourable friend.
LORD WOLVERTON: My Lords, arising out of the Minister's Answer, may I ask my noble friend whether he agrees that it is very unfortunate for an educational authority not to support the governors when the governors are endeavouring to support their headmaster? If this sort of thing is going to happen, I think it will weaken the powers of the governors. which I know are already very limited. I think this is a very unfortunate situation.
LORD BELSTEAD: My Lords, in general terms I think it is a valued right in the educational system of this country that the responsibility for the running of our county schools is firmly in the hands of the local education authorities, as my noble friend has made clear he realises by the terms of his question. May I just point out to the House that articles of government invariably assign the internal management and organisation of a school to the governors and the headmaster; but these functions cost money, and I think it is only natural that local education authorities should have some final power of responsibility.

BRITISH NATIONAL EXPORT COUNCIL
LORD BROWNhad given Notice of the following Question:
To ask Her Majesty's Government whether the closing down of the British National Export Council and the recent postponement of sixty-one export missions are part of a policy of withdrawing from British Industry, government financed services to support export activities.
VISCOUNT CALDECOTE: My Lords, in the absence of the noble Lord, Lord Brown, is it in order for me to ask the Question standing in his name on the Order Paper?
SEVERAL NOBLE LORDS SEVERAL NOBLE LORDS: No.

BUSINESS
EARL ST. ALDWYN: My Lords, with leave of the House, my noble friend Lord Lothian will be making a Statement on the Common Market negotiations at a convenient moment after 3.30 p.m. It is also intended that the Committee stage of the Industrial Relations Bill shall be adjourned for a time at about 7 p.m. in order to take the Second Reading of the Welsh National Opera Company Bill.
LORD SHACKLETON: My Lords, may I ask the noble Earl whether he can make a statement as to whether we shall need breakfast in the morning because of the Industrial Relations Bill, or are the Government going to treat us a little more gently to-night?
EARL ST. ALDWYN: My Lords, I was not anticipating that breakfast would be required to-morrow morning.
LORD SHACKLETON: My Lords, it might be useful if the House were to know. I shall not press the noble Earl now, but I repeat what I said last week, that the pressure could become intolerable and I see no reason why, if necessary, we should not sit into August.

PROCEDURE OF THE HOUSE
LORD DERWENT: My Lords, on behalf of my noble friend Lord Listowel,
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I beg to move the Motion standing in his name on the Order Paper.
Moved, That the Lord Conesford be added to the Select Committee.—(Lord Derwent.)
On Question, Motion agreed to.

INDUSTRIAL RELATIONS BILL
2.45 p.m.
THE MINISTER WITHOUT PORTFOLIO (LORD DRUMALBYN): My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
Moved, That the House do again resolve itself into Committee—(Lord Drumalbyn.)
On Question, Motion agreed to.
House in Committee accordingly.
[The LORD DERWENT in tie Chair.]
Clause 31 [Pressure on employer to infringe rights of workers]:
LORD STOW HILL LORD STOW HILL moved Amendment No. 238:
Page 24, line 27, leave out paragraph (c).
The noble Lord said: This Amendment seeks to leave out paragraph (c) of subsection (3) of Clause 31. Here we are back again in the area of the closed shop agreement. One is at risk, in moving this Amendment, of going over again ground that has already been explored, so I shall do my best not to rehearse arguments to which your Lordships have already listened in previous discussions. The object of paragraph (c) is to make it an unfair industrial practice for a trade union to try to bring pressure on an employer, or on an employers' association, to make a joint application for an approved closed shop under the terms of Clause 16 and Schedule 1. I submit that that is really an unfortunate provision, for reasons which I shall seek to deploy rather more fully.
At the outset may I say that the basic reason which underlines all the considerations which I desire to advance is that, after all, the whole object of the legislation is to try to promote stable and peaceful industrial relations. In my submission, this provision is bound not only to be completely ineffective but, in so far

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as it has any effect, to produce precisely the opposite result and exacerbate relationships and, indeed, to constitute a constantly present irritant between the two sides. I am quite certain that I shall be in agreement with the noble Lord who replies to the debate in saying that there should at least be certainty in the wording of the provision so that those who are concerned on both sides of the fence know precisely what their position is.
The first point which I should like to put before the Committee is that the wording of the provision introduces a very unfortunate degree of uncertainty, for the following reason. In this clause for the first time the expression, " irregular industrial action short of a strike " is defined. It is defined in subsection (4) which I shall not for the moment read, and that definition reappears in various contexts throughout the Bill. By this clause it is made an unfair industrial practice, with a view to inducing an employer to join in an application for an approved closed shop, first, to call, organise, procure or finance a strike or threaten so to do; and, secondly, to organise, procure or finance any irregular industrial action short of a strike or threaten so to do. I am sure that this at least must be achieved by whatever language ultimately appears in the Bill; that one must know what is,
" irregular industrial action short of a strike ".
If that definition is not a satisfactory and clear one, which gives an exact Yes or No in any given situation where pressure is exercised, it must necessarily result that uncertainty intervenes which will poison relationships and induce uncertainty in people's conduct.
The definition of, " irregular industrial action short of a strike ", as set out in subsection (4), is:
"…any concerted course of conduct (other than a strike) which, in contemplation or furtherance of an industrial dispute,—

"(a) is carried on by a group of workers with the intention of preventing, reducing or otherwise interfering with the production of goods or the provision of services, and

"(b) in the case of some or all of them, is carried on in breach of their contracts of employment or (where they are not employees) in breach of their terms and conditions of service ".

For there to be " irregular … action short of a strike ", two things are requi-
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site. There must be an intention on the part of those who engage in that conduct to prevent, reduce or otherwise interfere with the production of goods or services. That, I should have thought, was simple enough. In a given situation the answer can be given, " Yes " or " No ", whether that is the broad intention of those who initiate the action in question. But the second requirement, I should have thought, really was very difficult to apply. What is requisite is that that action is action which in the case of sonic of them or all of them, to quote the actual words,
" is carried on in breach of their contracts "—
that is, their contracts of employment or their contracts of service, as the case may be.
The question I should like to put to the Government is this: How does that definition impinge upon, for example, a " work to rule "? How does it impinge upon a " go slow "? This is a field in which, as your Lordships will know, my experience is limited, although my interest is very great, and I should not have ventured upon it without asking advice from those who are very much better versed in these matters than I am. After receiving that advice, I think I may say, as I would have said before receiving it, with some degree of confidence, that the primal feature of a " work to rule " is that you do not break your contract. It is characterised, if anything, by a rather excessive adherence to rule; an excessive observance of the actual terms of a contract. In the various other forms of industrial pressure that one knows of. which generally and comprehensively one refers to as a " go slow ", the action of those who perform the work may be carried out so slowly as obviously to transgress what could be regarded as a reasonable degree of hesitancy and moderation in speed. But it may not be. The slowness may be great or it may be less. It may be such as to he no more than a rather unhurried execution of the duty of the person concerned which could not possibly be said to amount to a breach of contract on his part; and I am advised that under the term " go slow " there are varieties of different sorts of pressure which are in fact exercised from time to time in the furtherance of industrial disputes. In the mining industry, I think there is a restricted work concept which involves, again, the

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same sort of thing but which could not possibly be said, as I understand it, to involve a breach of contract.
If I am right so far, it would mean that the definition of " irregular industrial action short of a strike " certainly would not apply to a " work to rule "; it would apply to some " go slows ", but it would not apply to others; and there are various other forms of pressure to which it would not apply. What is an unfair industrial practice in terms of this clause is either engaging upon that type of irregular industrial action, or even threatening so to do. When you make the threat you do not know even in advance whether a breach of contract is likely to result or will necessarily result or not. I frankly and at once concede that it is extraordinarily difficult to find in terms of legal language a satisfactory definition of the sort of thing which I believe those who are responsible for the Bill have in mind. I concede that it is difficult to do so, but surely it is highly unsatisfactory if the form of definition which is in fact employed, not only in this very crucial clause, but throughout the Bill, will leave it very uncertain how the question in any given situation ought to he answered: is it or is it not " irregular industrial action short of a strike "?
If one looks at the other provisions of the Bill to see what happens to you if you are found to have been guilty of irregular action short of a strike, or an unfair industrial practice of which that is part, the consequences, as your Lordships know, can be very serious indeed. The claim, as I believe, is brought under Clause 97 of the Bill, and if a claim is brought in respect of an unfair industrial practice within the meaning of Clause 31 of the Bill under the provisions of Clause 97 a court can in the first place make an order determining the rights of the complainant and the respondent; secondly, can award compensation; and, thirdly, can make an order directing the person responsible to refrain from continuing to take that action and to refrain from continuing any other action of a like nature in relation to the complaint. Deliberate disobedience would result, I suppose, in a motion for contempt, to attach the person of the defendant who was in contempt of the order of the court.
That is what can happen; and compensation, one knows, is also described in very broad terms. I think it is in Clause 110 of the Bill. Your Lordships know the limits set out in Clause 112 in the case of a union having a membership of £100.000 or more. It is £100,000. I am not suggesting for a moment that any reasonable court would in all cases determine the amount of compensation at £100,000, but you might well lave a case where there were five or six employers who joined in proceedings, and each of whom would be awarded compensation, and one does not know what that would amount to. Not only that, but each of the limbs of the unfair industrial action set out in Clause 31 is a separate one. If you call a strike you commit as act which is an unfair industrial practice; if you organise it, that is another ct; if you procure it, that is another; if you finance it, that is another; if you threaten to do so, that is another; if act engage in any of these uncertain forms of conduct which tire described as " irregular industrial action short of a strike ", that is another; if you threaten to do so, that is another. I suppose all of that could theoretically be taken into account in assessing what the compensation is to be; and all that is put into this Bill with a view to achieving a quiescent and friendly state of industrial relationships between the two sides in an area in which it is wildly optimistic to think that the most intense pressures will not from time to time certainly arise.
The approach of the two sides of the Committee as to the closed chop situation started out by being much wider than it is now because the Government have introduced Clause 16 and the approved closed shop procedure. They have made a substantial concession in that regard. But that has to be as a result, as your Lordships know very well, of a joint application, and if there will constantly be the situation open where there is no joint application; where there may be a closed shop when the Act came into force which, on the corning into force of the Act, becomes unlawful; where it may take months to get an approved closed shop into operation even if there is a joint application.
I am not one of those who thinks that the atmosphere is peopled wholly with

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"sharks" who seek to take advantage of their fellow citizens. But now and again there will be the case of a union, well organised, doing its level best to introduce orderly relationships to try to promote stable negotiating procedures, on the one side, and an unco-operative difficult employer, on the other, who for one reason or another (whether to gain any advantage or to bring his own form of pressure) refuses to join in a joint application with the union. In that situation, months and months will go by with tempers growing heated, and ever in the background the threat that if the union does what it would be very sorely tempted to do to try to bring some pressure to bear more effective than merely polite words there is the threat of their being brought before the court and having the remedies awarded against them that I have described. I hope I am not repeating arguments, but with respect I submit that this is such an important crux in the framework of this agreement that it is justifiable to ask with some urgency that the situation should be looked at again. This sort of provision will have precisely the opposite result to that which everyone wants to achieve. I urge the Government to agree that it should be left out.
I may be asked, " What alternative do you propose?". At least this is worthy of consideration. From this side of the Committee the view has been expressed over and over again that the courts should not be brought into this field of human relationships. But the Committee have already approved clauses in the Bill, including in particular Clause 16, which involve the intervention of the courts. When we were considering Clause 16 it was suggested from this side that it was a great pity to enable the court to order an approved closed shop only after the making of a joint application by the trade union and the employer. It was urged that it would be better to equate the position of the application for an approved closed shop with the application for an agency shop; in other words, to enable the trade union, in spite of opposition from the employer, to make that application. If we are going to have the courts intervening in this field at all, is it not better to vest in them a function of this sort rather than to
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leave it to fester as a source of dispute if the situation remains as it will be with this particular provision, paragraph (c), remaining in the Bill?
I ask the Government to give further thought to this point. I am not trying to be obstructive. I think that this is really a serious blemish on the Bill and I would urge on the Government at least to think whether it would not be better to go back to what was suggested and to say that at any rate an application for an approved closed shop can be made by the union of their own accord without the co-operation of the employer. The court can then decide that there should be a ballot and so on; that will obviate the situation at present incorporated into the Bill. I ask the Government to say that they will accept the Amendment as the first stage in a remodelling of this part of the Bill. I beg to move.
3.3 p.m.
LORD SLATER: I rise to support my noble and learned friend Lord Stow Hill. Noble Lords will remember that on a previous occasion I cited the mining industry, in which I spent over thirty years as an employee working down below. If we entered into negotiation with the management to arrive at an agreement for the production of coal, whether on piece rates or otherwise, and if we were not satisfied with the terms of a particular offer, we were entitled within the terms of our employment to carry out a form of restriction until we had reached agreement. That was nothing new so far as the face-workers on piece rate were concerned. They were entitled to do this provided that they were able to produce enough to achieve what was known in those days as the minimum wage rate. An Act dating as far back as 1911 fixed the minimum wage rate for those working at the coal face. Therefore the individual was able to restrict his labour to that extent and he did not have to work to his full capacity. A face-worker had two factors to consider. The first was " overdoing it ", which would be detrimental to his health; the second was that some people could not get themselves " linked up " because they had not the energy to keep up with their partners who were working as a team at the coal face. Therefore we had no particular action taken against us in

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the matter of restricting our labour so long as we were able to clear the minimum wage rate under the 1911 Act.
I should like to ask a question of the Minister who is to reply. Before doing so, I might mention that in those days we were allowed 25 minutes travelling time per mile to our working place at the coal face. Someone of the team carried a watch and noted the time at which we first descended into the mine; and at the end of the shift this travelling time was taken into account before we left the coal face. Let us suppose that on the way out we meet an official who may stop the party and say, " You are two minutes before time according to my watch. I am going to take your names. You will report to the management at such-and-such a time." Shamefacedly, we had to report to the management—simply because an official had said that according to his watch we had left our work two minutes before time. This despite the fact that we had checked the time of starting and finishing by our own watch. What would happen in a case like this, where the management wanted to take action against miners because it was reported to them that the miners were two minutes early? I should like the Minister to give an answer because this is most important; for there must be a time fixed for travelling for these people underground. What should be done in these circumstances?—the workers are keeping to their code of conduct, yet the management say they are not and impose penalties. I should like the Minister to help me in this matter.
3.8 p.m.
LORD PARGITER: There is one case that I should like the Minister to deal with. I will put it in a hypothetical form, but it occurs in practice. The employers want to alter the conditions of work in some way or the other which is contrary to the previous practice. The workpeople may say, " We are prepared to look into this; but we are not going to do so under these conditions. However, if you are prepared to join in an application for a closed shop, we are prepared to consider this change in the nature of our work." Would that be an unfair practice? I can imagine that it could be argued that it is an unfair practice, that the workers could be considered to be
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bringing pressure to bear. Or the other hand, the employers are bringing pressure to alter the existing practice, and they will use what methods are available to them. It seems to me that under his clause the workers may want to use this particular argument: to say, " Let us have a look at the possibility of a closed shop ", because they might agree to lo certain things within the ambit of a closed shop which they would be unwilling to do outside it. That is the important thing. I need not put it at any greater length. I should like to know precisely what the Minister means and whether he would say that this would be regarded as unfair practice on the part of the workpeople in asking an employer to join with them in an application for a closed shop.
LORD DAVIES OF LEEK: In this world of cybernetics, and this new living tool that can almost think—automation —conditions inside a shop cm change from time to time and within a matter of a few months new types of tools for doing a job can move a certain small number of people who have a skill. The Donovan Report was specific in saying that they did not like fragmentation of claims, sheltered claims aril so on—I am speaking from memory, of the Report. I think we are in deep water in trying to legislate for a moving civilisation and rapid movement inside industry when we try to categorise as tightly as Clause 31 has done. Consequently, I hope that when the Minister comes to reply he will bear this in mind.
LORD LEATHERLAND: I do not want to follow my noble friend into the realm of cybernetics, I want to be more simple. We frequently read in the newspapers of groups of workers who decide to work to rule. That broadly interpreted means that they are putting aside their normal customs and tempo and are reducing the output of their labour to a scale laid down within certain laws and by-laws appropriate to their particular occupation. In the case of the railways, we know that the by-laws impose strict restrictions upon employees: they must see that every door of every carriage is properly fastened and so on. There are occasions when the workers, because of some grievance, decide that they will put aside their usual speed of practice and revert to the official requirements laid

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down in the rules. Another case concerns buses. I presume, although I cannot produce the by-law, that there is a by-law in London which requires drivers to keep buses to a speed of 30 miles an hour in certain districts and perhaps 40 miles an hour in others. We know that there is sometimes a long jam on the bus routes, and drivers, knowing that an inspector is standing at a bus stop three miles away, decide, wickedly perhaps, to exceed the speed laid down in their working instructions for the next mile or so. Ship workers are certainly restricted, in the interests of public safety, in a good many ways. It may be that in an emergency, or because the ship is behind time, one or two of the usual precautions that are observed in normal circumstances are allowed to slip.
We know that stringent rules are laid down by the Factories Acts for places of manufacture. It may be because a rush job is being executed, probably for export, that one or two of those regulations are allowed to slip for a moment. If a worker deliberately slows down—let us put it as bad as that—in order to bring himself within the standards laid down by the law of the land or the bylaws of his public corporation, has he committed an irregular industrial practice which would make him liable under this Bill? Which Bill is the boss, this Bill or the existing Factory Act, the railway by-laws, the navigation by-laws, and so on? A man is going to find himself in serious difficulty if he has to decide between the two.
LORD DRUMALBYN: The noble Lord, Lord Stow Hill, really raised two separate issues, although they were inter-linked, as I am sure he realises. The first related to the Amendment in question, which is to leave out the words—
" to induce an employer or an employers' association to join in making an application under Part I of Schedule I to this Act."
That immediately raises the question which the noble Lord, Lord Pargiter, raised regarding the meaning of " induce ". Within the context of this clause, what it means follows on from what has been said above—
" to induce an employer, or a person acting on behalf of an employer, to take any action which (whether by virtue of subsection (1) of
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this section or otherwise) is or would be an unfair industrial practice…"
If you look back to subsection (1) you find out what is there covered, and that is the question of dismissal. In this particular paragraph (c) we are dealing with a different matter altogether; that is, with the closed shop. In this context " induce means what is laid down in subsection (2)—
"this Section applies to action of any of the following descriptions, that is to say—

(a) calling, organising, procuring or financing a strike. or threatening to do so

(b) organising, procuring or financing any irregular industrial action short of a strike, or threatening to do so."

I thought the point the noble Lord raised was more a question of negotiation than pressure, and it is pressure that we are dealing with here. I see the noble Lord, Lord Brown, indicating a little surprise. He may think it is difficult to sort this matter out. We are dealing with pressure of this particular kind: strike action and irregular industrial action. I think one can clearly distinguish that from argument and persuasion, and " inducing in this sense is related to this form of pressure. The noble Lord, Lord Stow Hill, went on to deal with a particular form of pressure which is referred to in subsection (4) and which I thought would perhaps be debated on whether the clause shall stand part. But there seems no reason why we should not debate it at the present time.
LORD HOY: If I may interrupt the noble Lord, may I say that we do not differ from the words he has read out. Perhaps he would care to give your Lordships examples of what he means and against which he is going to take measures under this Bill.
LORD DRUMALBYN: I apologise to the noble Lord, but I am not quite clear what he is asking me to do.
LORD HOY: The noble Lord read out five ways in which he said that action might be taken, and they are the words in the Bill. Would he give us examples of what he means?
LORD DRUMALBYN: In this Amendment we are talking about inducing an employer or an employers' association to join in making an application. The application is under Clause 16 and Schedule 1

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—that is, for an approved close shop. There are many other applications that come into Part II, but then applications do not apply here. We are not talking about a dismissed employee's application. This is a fairly narrow matter and I hope I have made it clear to the noble Lord.
LORD PARGITER: I confined myself to a very narrow point on the Amendment. with a view to getting a fairly precise answer. If I understood the Minister aright, he would say that where an employer wants to change a practice in a workshop and the employees say, " We are prepared to consider this provided that you join with us in making joint application for a closed shop ", he would regard that as negotiation and not pressure. Now supposing the employer says, " I am not prepared to do that, but it is obvious that the practice ought to be changed " and the employee still remained obdurate, would that then become pressure " or would it still be negotiable?
LORD DRUMALBYN: If the pressure were directed towards persuading the employer to agree to make an application for an approved closed shop agreement, then in that case it would be caught under the Bill quite plainly. But it is very difficult to say in any given circumstances why an employer would agree to make an application, and all that the Bill says is that the employer and the employees, or the trade union, must agree together on making an application for an approved closed shop. I would myself have thought that an employer would not be very ready to barter away his particular responsibilities in this matter even although, taking the matter by and large, he might be persuaded in certain circumstances. I am afraid that that is the best answer I can give the noble Lord for, after all, it is not possible to pry into the minds of men as to why they agree to a particular thing. All I am saying is that in the light of the responsibilities that are placed upon the employer in regard to approved closed shop agreements, he will obviously need to have very special regard to the need to respect his duties under Clause 5 of the Bill, for example—the duties that are laid upon him not in any way to interfere with an employee's right to belong or not to belong to a union.
LORD DELACOURT-SMITH: How does that arise when it is a question of making an application under the appropriate clause of the Bill? Surely an employer cannot consent to a joint application under the first part of Schedule 1 of the Bill, unless he has taken it into account. It is quite automatic once he has agreed to this application that he is consenting to embark upon a course which limits some of the individual's entitlements under Clause 5.
LORD DRUMALBYN: That is precisely w hat I am saying. He must have regard to the consequences of I is agreeing to make an application for an approved closed shop. and I was saying that I did not think—though I cannot pry into the minds of men—that employers would barter away these consequences for a very cheap price. I cannot take the matter further than that, quite obviously. The noble Lord knows better than. I do the facts of negotiations in industrial life.
I was just coming to the question of irregular industrial action short of a strike. The essence of this was quote clearly pointed to by the noble Lord, Lord Stow Hill, when he pointed out that in the case of some or all of them this cleans any concerted course of conduct which is carried on in breach in their contracts of employment or in breach of t their terms and conditions of service. In the main, of course, in an industry where there is a rule book or anything comparable to it, it is part of the contract of service that the rules contained in that rule book should he observed. so that where there is a breach of the rule book it would follow there is also a breach o' the contract of employment. T think that on the whole question of working to rule, people have some vague idea that If e rule is also some other rule—possibly a rule of the trade union, or something of that kind. This is not so at all. We are purely concerned with the breach of rules contained in the rule book, and if the rule book is unnecessarily rests active, or indeed in some cases absurd, it is usually a matter for normal negotiation! between the employer and the trade union to get this situation sorted out. But so far as this provision is concerned, so long as the employees stuck to the rule book they would not be in breach of their terms and conditions of service and they would then not be guilty—I use this word Loosely—

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of committing irregular industrial action short of a strike.
There are cases where there is no rule book, and in such a case one would have to take all the facts into account and make a judgment as to whether subsection (4)(a) was then being covered—a concerted course of conduct which is carried on by a group of workers with the intention of preventing or otherwise interfering with the production of goods or the provision of services. One would have to rely on that alone and not on both at the same time. Noble Lords may say, " Is this likely to be accepted. Will it work fairly in some cases?" In some cases it will work one way where there is a rule book, and in other cases it will work in another way where there is no rule book. But that is entirely to ignore the spirit of this provision, and of course this prohibition of irregular action in support of unfair industrial practices runs right through the Bill.
LORD BROWN: May I make a short remark? The noble Lord has made repeated references to the rule book. I now understand what he means because he has explained it, but I think it is likely to lead to misunderstanding because what he is referring to are in fact agreed policies between the employee and the management which form part of the contract of employment. Reference to the rule book inevitably means to some people reference to the union rule book.
LORD DRUMALBYN: I have just said that people confuse the two. I am grateful to the noble Lord if he has made it clearer that I did.
LORD BROWN: Is there not another term that could be used?
LORD DRUMALBYN: The words " rule book " do not appear in the Bill, which relies entirely on breach of contract or terms of employment, or terms and conditions of employment. My argument was that this was often linked with the rule book.
LORD LEATHERLAND: If the noble Lord will pardon me, this is a point I raised. Let me put it quite simply in terms of one industry. In the railway world there is a rule, and in order to convenience the public railway men often
20
ignore that. Let us assume that the railway men cultivate a grievance. They will say: " We will work strictly in accordance with the rule book ". That means a slowing down of travel. By working strictly to the rule book, which has almost legislative authority, are they contravening the Bill?
LORD DRUMALBYN: If they really stick closely to the rule book and carry out those rules with normal efficiency and without undue delay—
SEVERAL NOBLE LORDS: Oh!
LORD DRUMALBYN: Certainly. The noble Lord must permit me not to give way. I am well aware that there are many peculiar provisions in the rule books. I remember being held up for one and a half hours at a station while successive trains went through because we happened to be in a position where the " up " trains had to go in on the " down " platform because the " up " platform was closed. That meant according, to the rule book—or so I was informed—that a man must go out with a lantern and lead each train in. This happened with one train after another. I should have thought that they might have had a man with a lantern posted ready in each place, but instead of that the same man came in and went out and came in and went back again, and the result was that the train was one and a half hours late. I quite agree that these things can happen, but this is a case for the alteration of the rules, if they are absurd and anachronistic. What the Bill seeks to do is to get proper procedural agreements so that this type of anachronism which is standing in the way of efficiency and progress in this country shall be removed. All I am saying is that we must deal with the situation as we see it. I am now being asked about conformity with the rule book. I am merely advising the Committee that as matters stand, if the rule book is part of the contract of service it is sufficient, so long as you can show that you are really conforming with the rule book; but in doing so you must not add additional rules or additional delaying action of your own.
LORD POPPLEWELL: The more the noble Lord speaks on the rule book the more he indicates his complete ignorance of what he is really talking about. As a railwayman of many years standing,

21
knowing the railway rule book and knowing the penalty that has been inflicted on me because I have broken the rules—for instance, one can be in the signal box in the marshalling yard, an engine comes along, it goes back shunting, you place the signals at danger and it stops out in the yard for 10 or 15 minutes without giving any indication; but if you move those signals you have broken the rules. That is the kind of thing that shows the total unreality of this line of approach.
LORD DRUMALBYN: Perhaps the noble Lord will allow me to continue with my speech, because I think his intervention is beyond merely drawing attention to a particular point. I think I should be allowed to complete my speech.
I hope I have now left the Committee with the impression, which I believe to be the correct one, that irregular industrial action short of a strike must mean the preventing, reducing or otherwise interfering with production and must also be in breach of the contracts of employment—and this is where the two sides of the argument are linked. Where there is a practice which is unfair, it is unreasonable for anybody to act to achieve that purpose; and under the Bill that is an " unfair industrial practice ". These practices are all defined in the Bill. That unfair industrial practice will lay the person who indulges in it open to the action that is envisaged and which the noble Lord, Lord Stow Hill, mentioned. There can be a complaint against the action and as a result of that there may be either a definition of rights or an order to stop doing what you are doing, or not to do again what you have done, or there may be compensation. I cannot believe that anybody really disagrees with that as a principle.
The question we now have to consider —and this is the point raised by the noble Lord—is whether to induce an employer or employers' association to join in making an application for an approved closed shop is or is not unfair. I believe that it is unfair, because the Government have made it clear throughout that what they are seeking to do is at the same time to preserve individual freedom and to get order in industry; and they do this by providing means of access to an agency shop agreement. We believe that it will he entirely exceptional to get
22
approval of a closed shop agreement. Indeed as those of your Lordships who were present during the debates will know, it is certainly not going to be easy, with the gateways that we have established, to get an approved closed shop agreement.
We also think that because of the need to preserve the rights of the individual in this regard it is right that both the employer and the union should agree that the closed shop is necessary in terms of Schedule 1 that we have discussed: that it is necessary, that it is to be desired and that it is in their joint interests. We believe that it would be most undesirable to provide for the establishment of a closed shop agreement against the wishes of the employer; in effect to allow industrial action to be taken to force an employer into a closed shop agreement. After all, the approval of a closed shop will impose on the employer a duty to deprive his workers of their livelihood if they refuse or are unable to join the trade union, and we believe that such a condition of employment can be approved only in the most exceptional circumstances. It is on these grounds that we have added paragraph (c), to make it an unfair industrial practice to induce an employer, by strike action or by irregular action short of a strike, to join with the union in an application for a closed shop. It for these reasons that we do that and lye believe that we are right in so doing. I hope the Committee will agree with me in that contention.
3.38 p.m.
LORD SHIN WELL: Never have I heard the noble Lord, Lord Drumalbyn, less convincing. Frequently in the course of our debates I have thought that he was (if I may say so without any condescension) very effective, within the ambit of the proposed legislation, but he seems to be arguing with himself; trying to convince himself. Indeed he travels much wider than the clause requires. For example, he spoke about this being the essence of the provision now being debated; he spoke about a group of workers seeking to impede an employer making an application in relation to a closed shop. Then he referred to " strike action or irregular action short of a strike ". The words

23
"irregular action short of a strike", not only apply to this clause but are related to many other items in the proposed legislation.
When the noble Lord sought to define what " irregular action short of a strike " meant he said" concerted action ", and if there was any doubt about whether it was concerted action then those who were responsible for exercising their judgment must rely on the facts. But he did not state what the facts are, except to furnish an illustration out of his own experience. Of course, it must have been a great nuisance to the noble Lord, Lord Drumalbyn, to find a number of trains passing through the station and that he was left in the lurch; but what he has failed to recognise throughout the whole of this debate, despite all the questions that have been asked by my noble friends, is whether it was desirable, in the interests of safety and in order to protect the travelling public, to have a book of rules that have been in operation for many years.
In effect, what he said—and I do not know whether my noble friends noted it —was that if there is an operation that appears to be unfair (for example, if it is unfair to the travelling public) and it happens to impede an employer in making an application for a closed shop, then we want to alter the rule. That is what he said. There is no provision in this legislation for altering the safety rules which relate to the railway service. By what authority did he say what he said? If there is such an intention, may we have it disclosed? From whence does it derive? Is it the intention of the Government to go further than what is contained in this legislation and to make some rearrangement about the safety rules affecting the railway service; or to alter the Factories Acts or anything of that sort?
LORD DRUMALBYN: I think the noble Lord, Lord Shinwell, has misunderstood what I said. I was talking about the rule book, the rules that apply. I said this was a matter for negotiation. The rules have to he laid down by the employer. He cannot change them—and I think it undesirable that they should be changed—without consultation with the employees. I was talking about that
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being linked with the contract of service. I said nothing whatever about the desirability of altering a particular rule. I merely quoted an example of what happens when a particular rule of this kind is applied; I made no comment on whether or not it should be altered.
LORD SHINWELL: With respect, the noble Lord did not reply to the pointed and pertinent question put by my noble friend Lord Leatherland. He gave an illustration of the rules which operate in the railway service and asked what would be the position of the worker who continued to operate the rule. I am not saying it is a good rule: most of us have been inconvenienced by it at some time or other. I am inclined to repeat what I said about the experience of the noble Lord, Lord Drumalbyn. It is a fearful nuisance, when one is seeking to reach one's destination, to discover that a particular rule is being operated. It may have been in operation since the beginning of the railway system; but the point is that it exists. Now we have discovered that in the exercise of judgment on whether a group of workers or a particular worker have sought to impede an application by an employer in relation to the closed shop, and this rule operates, it will be regarded as an irregular action—is the noble Lord, Lord Drumalbyn, saying that it is not irregular? Will the noble Lord say it is a regular action?
LORD DRUMALBYN: What I have said is that if there is something in the rules, and the rules are part of the contract of employment, any action in accordance with those rules will not be an irregular action. I went on to say that of course not all the rules are perfect; some are anachronistic, and they ought to be brought up to date. I am trying to explain to noble Lords that this paragraph is not so terrifying as it looks, but is intended to have a psychological effect, and to show that action which is irregular and reduces production, and is outside the contract of employment, ought not to be permitted; and to take such action for unfair purposes is an unfair industrial practice.
LORD SHINWELL: I am sorry to pursue the matter, but the noble Lord has delivered himself into my hands, lock, stock and barrel. He says that if the rule is a bit of a nuisance what ought to

25
happen is that it ought to be brought up to date. Who is going to bring it up to date? When what is regarded as unfair industrial practice comes up for judgment, who is to be responsible for exercising the judgment? This is all left in the air. It is not good enough. There ought to be precision about this legislation. Workers ought to know where they stand and what is going to happen to them. It ought not to be left subsequent to an action taken by a group of workers.
I come back to the point that we have still not had a definition of what is an irregular industrial practice. What is it? The noble Lord has talked about concerted action. What does he mean by "concerted action "? It is a very vague, ambiguous and nebulous term. Is concerted action an irregular industrial practice of which a man may be found guilty? Will the noble Lord say whether that is what it means? I am bound to say that this is the least convincing reply from the Government that I have heard during the whole of this debate, and this is a very important matter.
As my noble friend Lord Stow Hill brought out so vividly, under a subsequent provision of the Bill, a union could be liable to pay £100,000 compensation if not only one employer but also a group of employers had been impeded in their desire to have a closed shop. The employers could be awarded £100,000 each. That is what is proposed in the Bill, and the noble Lord, Lord Stow Hill, was only too right when he said that, instead of trying to promote industrial relations of an orderly and constitutional character, we shall he in for more trouble. Is this what the Government are driving at? Sometimes I think they are; that they are out for a row. Have they not enough rows on their plate already, with what is happening in Europe—about which we are to hear this afternoon—and elsewhere, and with 800,000 unemployed, without trying to drive the workers of this country into more turbulence? If that is what they want, they are going to get it.
LORD SLATER: I posed a particular question because the matter comes under two measures. What is going to happen when this Bill becomes an Act? Provision is made for travelling time for a miner of 25 minutes to the mile when travelling underground. My noble friend Lord Shinwell referred to irregular
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industrial action. If men are caught coming out of a mine two minutes before their time, under what legislation would the management have power to take action against them? Would it be under the provisions of this Bill or under the 1958 legislation?
LORD DRUMALBYN: As I tried to explain to the noble Lord, whether an action has been an unfair industrial practice depends on the purpose of the action. I did not understand from the noble Lord that these men had started early. But even if they had, it was because they had a purpose: to establish a closed shop or anything else branded as an unfair industrial practice. I thought that the noble Lord was slightly "off beam " in his example, although I quite understand that he has had a traumatic experience.
BARONESS GAITSKELL: May I ask the noble Lord, Lord Drumalbyn, a very short general question? It is very difficult for me, not being a lawyer or a trade unionist, to follow this very crucial clause. May I ask whether the Government regard all concerted actions as irregular?
LORD DRUMALBYN: No, but they do regard all irregular actions as concerted where they are agreed upon by several people to achieve 2 certain purpose.
3.49 p.m.
LORD BROWN: I find myself in some disagreement with the noble Lord, Lord Shinwell, who is seeking more detail. I suggest that this sort or argument will come up many times in the discussions on future Amendments. The real cause of the argument is that the proposed legislation delves very deeply into very important things and deals with them at too superficial a level. Here we are concerned with three things: persuasion, use of authority and power. We understand what persuasion means. Authority ought to be defined somewhere in this Bill as being the right to act on the basis of policy and rules which have been agreed. Power is the right, unilaterally, to cause disruption in support of some activity which you want. If these conceptions had been understood and defined, one could deal with clauses and subsections such as this very much more simply. The argument that has been

27
going on for the last half-hour is really about the authority which arises through agreed procedures. If those agreed procedures exist then the authority exists; but if they are not agreed, power must not be used in their place. That is what the Bill is trying to say. I agree with what the Bill is trying to say, but it has been said in a way which is on too high a level of superficiality.
3.50 p.m.
LORD POPPLEWELL: The whole essence of this argument once more highlights how impossible it will be for this legislation to work unless lawyers are brought in to interpret it. There has been much talk about rule books and suchlike, but what are those rule books for? Particularly on the railways they are to ensure the safety of the public. When a body of railwaymen decide, because they are arguing for a given action, that they will work to rule, what is to be done about it? This just indicates how difficult it will be to define " an irregular industrial action." Of course the Government will not move on this matter. One can understand that; but it once more highlights how ridiculous the Bill is and the impossibility of working it.
LORD ARWYN: In addition to the reference to railways and their main problem, I wish to draw the attention of the Minister to the Mines and Quarries Act. If a mine or a quarry is run in accordance with the Act, production is bound to be decreased. Is that an " irregular " practice? I have been in mining and quarrying all my life and I know that if any manager sticks to the rules and enforces them the output from the quarry is diminished. I should like to have some enlightenment about this question, especially on this clause. The Bill is already known as a personnel manager's nightmare.
3.52 p.m.
LORD DELACOURT-SMITH: I think the noble Lord, Lord Drumalbyn, is getting into some deep water, although it is nothing like so deep as the water will prove to be if the Bill in its present form becomes an Act and anyone actually attempts to apply the subsection to which some of my noble friends have directed particular attention, and to which perhaps we shall return on the
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Question, Whether the clause stand part of the Bill.
I wish to focus attention for a moment on the purpose for which these formidable penalties are being threatened. They are threatened against anyone who seeks by action specified in this clause
" to induce an employer or an employers' association to join in making an application under Part I of Schedule 1."
I want to press the noble Lord on the point I raised earlier and with which I am bound to say I do not feel he dealt very satisfactorily or convincingly. That is the question of whether or not the delays which it will be possible for reluctant employers to impose are likely to be such as to cause very considerable frustration, which might well express itself in action or the possibility of action which would be caught under some subsections of this clause.
Is the Minister satisfied that the arrangements envisaged in the Bill are not such as to enable delayed action to be taken, even when there is a very clear case for a closed shop to be established and even when a substantial number of responsible employers are concerned and would like to see such a closed shop established? If, for example, on the employing side there is an organisation and not a single employer, are not the possibilities of delay greatly extended? Is the Minister satisfied that there is anything reasonably fair in threatening working people or their representatives with the draconic penalties under the Bill? Unless he is absolutely satisfied that there are no possibilities by which delays can be imposed on the procedures in the Bill—and those procedures are not very satisfactory; in fact, they are very unsatisfactory in any case—if they are to be subject to substantial delay, the position will be come intolerable and patience will reach breaking point. Has this factor been considered, and are the Government satisfied that there are not possibilities of delay on the part of employers in seeing the procedure carried out expeditiously if it is likely to lead to a result about which they are not very keen?
Secondly—and this, I think, is the last point on which we shall concentrate attention particularly on the closed shop, at any rate for some time—it is necessary for the Government, now that we have gone through this examination of all the

29
various aspects of the closed shop provisions, to give us an answer to the question why they have chosen so flagrantly to disregard the advice of the Donovan Commission. The Donovan Commission examined this matter very carefully, more carefully than I think the Government have examined it. They examined it very judicially, more judicially than I suspect the Government have ever examined it. The Donovan Commission made it very clear that they did not recommend the imposition of enormous difficulties such as the Government envisage, and such as the noble Lord, Lord Drumalbyn, has envisaged, before a closed shop can be brought into being. If my memory serves me aright, they mentioned five points which they thought needed attention concerning the relationship between the closed shop and training arrangements. They thought that sometimes there were out-of-date training arrangements. I should have thought that one of the most important factors in industry to-day is training, I think it should play a more substantial part in the code of practice.
Then the Donovan Commission, I believe in paragraph 603, set out four sets of circumstances in which they thought the possibility of injustice could arise for individuals as a result of the operation of a closed shop. The first was where a man has a conscientious objection. That case has been dealt with, perhaps not in a very satisfactory way or in the most satisfactory way but it has been suggested that it could possibly lead to a widening of the conscience provision to cover many cases not normally thought of as coming within that term.
Secondly, the Commission thought that there could be a danger of individuals being unreasonably excluded from a trade union which operated a closed shop, and thus be disadvantaged. They went on to say that in their judgment if there were, as exists in the vast majority of cases, a proper appeal procedure within the union, this difficulty would largely disappear, but in cases which arose despite that fact the matter could be dealt with, if my memory serves me aright, by the review body mentioned in discussion on an earlier clause which was to operate in conjunction with the Registrar and which of course has no place whatever in the Government's plan. But at any rate I
30
think it is reasonable to say that in one way or another this problem will be dealt with.
Thirdly, they thought there were possibilities, that there might arise cases of a union engaged in malpractice in a way which would prejudice the position of individuals. They were I think looking at very exceptional circumstances here, and certainly there is nothing in whatsoever in that proviso in the Donovan Report which justifies the elaborate paraphernalia which the Government are envisaging before a closed shop can be brought into being.
Fourthly, they thought then; was the possibility that an individual, a non-unionist, already employed in a concern. might be in danger of unfair treatment if a closed shop were introduced, and he was unwilling to join, having already had some years of service.
These were the four sets of circumstances which the Donovan Commission believed needed to be examined and dealt with. I hope the noble Lord will not misunderstand me. I am not for one moment suggesting that those four sets of circumstances cannot be described as being dealt with in the Bill. What I am saying is that the Government are going infinitely beyond what the Donovan Commission regarded as necessary to safeguard the position of individuals in relation to the closed shop. It really is not good enough for the Government to ride away again on one of their easy generalities, in the way in which they are placing obstacle after obstacle in the way of the achievement of a closed shop, even where employers and trade unionists want it. They really are going far beyond anything that the Donovan Commission regarded as necessary in dealing with the limitations of the closed shop and the criticisms which could legitimately be made of it.
The noble Lord ought to gave us a more convincing explanation, since we are now at the end of the Part of the Bill dealing particularly with this matter. about why the Government have chosen to disregard the implications of the Donovan Report, and have gone far far beyond steps which the Donovan Report recommended as necessary.
4.2 p.m.
LORD IDRUNIALBYN: I think it would be a mistake to go all over the

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arguments that we have gone over before. The Committee will be well aware that we have regarded the agency shop as the means by which the freedom of the individual and the needs of collective bargaining can be reconciled. We attach great importance to both of them. We have regarded the closed shop, particularly the pre-entry closed shop, as something which is in itself undesirable. We have in another place introduced provisions whereby a post-entry closed shop can be introduced in circumstances where this is approved after examination by the Commission for Industrial Relations. We have attached great importance to the need for agreement between the employer and the trade union in such an application for an approved closed shop.
The noble Lord expressed doubts about the delays which could ensue, but the circumstances here are quite different from those in the previous case in which he inquired about delays. There we were concerned with the agency shop, where the union itself could make an application, or for that matter the employer could make an application, for an agency shop to be introduced, subject to the approval of the workers themselves. As the Committee will now of course know, the agency shop can be agreed upon by the employer and the union together. But here we are dealing with something quite different, and that is where there is to be a closed shop, and here we think it is highly desirable that there should be this agreement as a precondition between the employer and the union. I did make some references earlier to the difficulty of seeing into the minds of people, and of the employer in particular, and in what circumstances he might agree, and what inducement would amount to. But I tried to make it clear that there should be real agreement between the employer and the unions on the necessity and the desirability of the closed shop. This is very likely to be the case, and we would not expect in these circumstances that unfair pressure should be exercised upon the employer to do something that he does not wish to do, or does not think it right to do.
If the employer thinks it necessary—and this is the operative word in the case of a closed shop—for the well-being of the industry as a whole, or of his own
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particular industry, as the case may be, then of course an application can be made by agreement. The noble Lord says it may take a long time to get all employers to come into line. This would be to look into the ways in which employers' associations reach agreement, but I would not have thought that employers' associations would necessarily have waited until all agreed on a particular action before they decided that they were in favour of a closed shop, and were prepared to join with an application for it. But if the employer really believes that a closed shop is not in the interests of the industry, or of his own industry as the case may be, then we think it would be wrong to let such an application go forward. I recognize—
LORD DELACOURT-SMITH: I think the noble Lord is about to go on to another point, but before he does so, can he give us an assurance that the circumstance will not arise in which, in an employers' association, one or two recalcitrant employers, constituting a minority, and perhaps employing a minority of the workers concerned, will be able to hold up action which is desired by the generality of the employers?
LORD DRUMALBYN: I could not give such an assurance, because I do not know how the affairs of individual employers' associations work. Of course I could not give such an assurance. But I think the noble Lord will agree with me that there are certain fields in which there is already evidence. and quite strong evidence, that both employers and unions are likely to make applications for an approved closed shop agreement. The difference is simply that the noble Lord, and noble Lords opposite, would like to see far more examples of applications for such closed shop agreements, and we believe that they should be limited to places where they are absolutely necessary, and where there is agreement between the two sides.
The noble Lord made reference to what the Donovan Commission said on this matter, and I think it is perhaps worth while to refer to what they actually did say. In paragraph 594 they said:
" It must not be supposed, however, that good industrial relations are the invariable accompaniment of the closed shop. On the contrary, the closed shop is widespread in motor manufacturing, shipbuilding. coal-mining and the docks, the four industries in

33
which strikes in breach of agreement have been most common in recent years."
They went on, in paragraph 598, to say:
" In our view the closed shop as it operates at present is not always in the best interests either of workers or of the community as a whole. It is liable from time to time to cause substantial injustice to individuals from which they have no effective means of redress. It also contributes to the maintenance of a system of training which is out of date and inadequate to the country's needs."
Perhaps I might mention in passing that the Bill is by no means silent on training—
LORD LEATHERLAND: May I—
LORD DRUMALBYN: May I please deal with this point before I leave it? If the noble Lords will look at Clause 46(7) of the Bill they will see that in applications for sole bargaining agencies the Commission may attach such conditions as they think fit, and-—
"(a) may require an organisation of workers recommended for recognition as sole bargaining agent for a bargaining unit, or for inclusion in a joint negotiating panel so recommended, to make sufficient trained officials available for purposes of collective bargaining."
This is one of the points the Donovan Commission also laid stress upon. Perhaps 1 may finish my quotations from the Donovan Commission Report by quoting from paragraph 602:
" We have also borne in mind that throughout this Report we advanced a number of proposals to assist trade unions to organise effectively and to reduce the incidence of strikes. The effect of our proposals should be to extend to more industries the conditions which now permit many trade unions to organise and bargain without need for the closed shop, and we believe, therefore, that in many cases unions should in time feel able to dispense with its aid."
Many of those proposals are included in the Bill. In other cases we do things in a rather different way, but the Bill makes substantial provision to assist us to organise effectively. I believe that it would do it much quicker than was envisaged by the Donovan Commission, through the agency shop provisions. For example, there is the right to obtain recognition and bargaining rights, and information for bargaining purposes, to form agency shops, and the protection of the trade union member in exercising his right of membership.
LORD DELACOURT-SMITH: Would the noble Lord not agree that his quotations from the Donovan Report have been quite strikingly selective? I trust he is not going to suggest that the: Donovan Commission gives the impression that the closed shop is in general accompanied by bad industrial relations. Nor, hope, will he omit to take note of the fact that I listed in some detail, and I think with complete accuracy, the four points which the Donovan Commission thought ought to be attended to in order to remove the criticism and objections to which they drew attention. Will he further agree that I was quite right in saying that the Government's proposals go far, far, further to make the closed shop difficult to bring into existence than the Donovan Commission recommended?
LORD DRUMALBYN: I agree that the proposals in the Bill go further to make the closed shop difficult to bring about, but what I have said is that the points to which the Donovan Commission attach importance are either net in the Bill in the same way as the Donovan Commission recommended, or are met in a different way. Above all, there is this device of the agency shop agreement which should bring about, over a wide area of industry, the benefits at present enjoyed by the closed shop, without: the striking disadvantage that it has for the individual. That is what we have sought to achieve, and I believe that the Bill will achieve it.
LORD STOW HILL: Before the noble Lord sits down, I want to intervene on precisely this same point. The noble Lord read from the third sentence of paragraph 602 of the Donovan Report. Would it not have been a little more satisfactory also to have read the first two sentences of that paragraph, which read as follows:
" In our view prohibition of the closed shop must be rejected. It is better to recognise that under proper safeguards a closed shop can serve a useful purpose and to devise alternative means of overcoming the disadvantages which accompany it "?
LORD DERWENT: I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

E.E.C. NEGOTIATIONS: BRUSSELS TALKS
4.15 p.m.
THE PARLIAMENTARY UNDERSECRETARY OF STATE, FOREIGN AND COMMONWEALTH OFFICE (THE MARQUESS OF LOTHIAN): My Lords, I should like to repeat a Statement that was made by the right honourable gentleman, the Chancellor of the Duchy of Lancaster, in another place a little earlier this afternoon. This is the Statement:
"With your permission Mr. Speaker and that of the House I should like to make a Statement about the meetings I attended in Brussels and Reykjavik last week. I am sure the House will forgive me if I go into some detail.
"At the meeting with the Community in Brussels in the early part of the week we reached agreement on a number of important points. For convenience I will deal with the matters in the order in which they arose.
"First there was a satisfactory measure of agreement on Euratom. When this subject was first broached, the Community asked the candidate countries for compensation for access to the assets of Euratom. We said we did not think this request was justified, and I am glad to say that it was withdrawn. We have now agreed in principle to an exchange of knowledge of equivalent value, to take place immediately after our entry. We have also settled a number of legal issues arising out of our acceptance of the Euratom Treaty, including its application to our dependent territories, with the exception of Hong Kong.
"Next, tariff quotas. We reached agreement on arrangements for twelve industrial products which we at present import wholly or mainly duty free, and where it appeared that the imposition of the Common External Tariff would have meant a new charge on supplies to British industry. The products in question are phosphorus, silicone carbide, wattle extract, plywood, wood pulp, newsprint, ferro chrome, ferro silicone, aluminium, lead and zinc. The only product on which we have yet to settle is alumina.
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"The effect of the arrangements we have made is that around 90 per cent. of our imports of these commodities from outside the enlarged Community would continue to be imported duty-free.
"The Community also agreed to an indefinite suspension of the Common External Tariff on tea. With permission I will circulate details of these inevitably complicated arrangements in the OFFICIAL REPORT.
"We then dealt with the important issue of agricultural transition and Community preference. Here we were able to settle the main problems, and agree on a basis on which the remaining points of detail can be worked out.
"Briefly, we would adopt the mechanism of the Common Agricultural Policy at the beginning of the transitional period, but our transition to Community prices would be achieved by six even steps spread over five years. The deficiency payments system would be phased out gradually during that period. British producers and consumers and third countries should thus have time enough to make the adjustments which in many cases would be necessary.
"On trade with third countries, we have secured explicit recognition by the Community that if circumstances arose during the transitional period in which significant volumes of trade risked serious disruption, then the enlarged Community would deal with the position.
"The Community would likewise take rapid and effective action to deal with any difficulties which might arise in the operation of the transitional mechanisms.
"The Community recognised that we had a special problem over horticulture. Here it was agreed first that tariff adjustment for horticultural products should proceed at a slower rate; secondly that no move on horticultural tariffs should take place until a year after our accession; thirdly that there would be provision for flexibility in the adjustment of horticultural tariffs to permit some modifications of the process if necessary; and finally that for apples and pears, where there is a special problem arising from surpluses

37
in the Community, we should replace our quota arrangements at the beginning of transition by a system of compensatory levies, off-setting the difference between British and Community prices. These levies would be gradually phased out during the transition period as British and Community prices come into line.
"Taken together, these measures should ensure that British horticulture gets the exceptional treatment which it needs.
"I now turn to the question of our contribution to the Community budget. As the House will know, there are several ways of approaching this difficult and important problem.
"The Community has now suggested an entirely new approach, based on certain initial principles.
"The idea is that a percentage—or key—would be set, which would vary by small amounts anually, and would represent the proportion of the Community budget which we would notionally be expected to pay in each of the years of the transitional period. But the sums actually payable in each year would be reduced by a large amount at the start of the transitional period and by a progressively smaller amount as time went on until we arrived at full acceptance of the Community's direct income system.
"An important and favourable development is that the Community admits the possibility of a further period of correctives after the end of the transitional period.
"While welcoming this new approach, I made it clear that its usefulness could only be assessed when precise figures were attached to the formula to enable us to see what we would actually be paying. But if the figures were fair and reasonable. I see no reason why the present proposal should not provide the means of arriving at a solution satisfactory to all concerned.
"Finally I come to two related questions: that of the association with the Community of the developing Commonwealth countries in the Caribbean and Indian and Pacific Oceans; and that of future imports of sugar from the developing Commonwealth countries.
38
"The Community have row agreed that they are prepared to reaffirm the 1963 Declaration of Intent in respect of the independent Commonwealth countries in the Caribbean, Mauritius, Fiji, Western Samoa and Tonga. This declaration offered a choice, between two forms of association and a trading agreement. I warmly welcomed its reaffirmation, which would give the countries concerned complete and wide protection and freedom of chose. They would have up to 1975 to negotiate these arrangements with the enlarged Community, of which we should of course then be a member. Until then our existing pattern of trade with them would remain unchanged.
"As regards sugar, the Community on the 11th of May undertook to bear in mind the importance of sugar for the economies of the developing Commonwealth countries concerned after 1974, and suggested that the question should be settled within the framework of negotiations on whatever form of association or trading agreement these countries wanted.
"I replied that this approach was helpful but needed clarification. I did not think that the undertaking, so far as sugar was concerned, was sufficiently firm to provide the sort of assurance which the Caribbean countries and other sugar producers had always needed
"In the early hours of the 13th May after further contacts, the Community put an additional text to us. They now said that it would be the firm purpose of the enlarged Community to safeguard the interests of the countries in question whose economies depended to a considerable degree on the export of primary products, in particular sugar.
"This text amounts to more than a declaration of intention. It is both a specific and a moral commitment.
"I can now say this to the developing sugar producing countries of the Commonwealth.
"There would be room in the enlarged Community, of which Britain would be part, both for present quantities of sugar from these countries at remunerative prices and for the development of sugar beet production.

39
"With the safeguards now promised I believe that the House can be satisfied that these countries will not suffer from our entry into the Community. The assurances which successive British Governments have given to these developing countries have now been double-banked by the Community's commitment.
"I thanked the Community for their declaration but made it clear that before accepting it, I must consult the Commonwealth countries concerned. I am hoping to arrange these consultations in the very near future.
"I believe that the progress on all these points which was made in Brussels last week is a clear demonstration of the Community's desire to carry the negotiations rapidly forward to a successful conclusion. We shall be meeting again at an additional Ministerial meeting in Luxembourg on the 7th June.
"At the end of the week I was in Reykjavik for discussions with my Ministerial colleagues of the European Free Trade Association.
"My colleagues unanimously expressed satisfaction at the progress made in the Brussels negotiations and in the discussions the European Free Trade Association countries were having with the Community. They expressed their confidence that all European Free Trade Association countries would be able to participate in the progress of European integration in a way acceptable to the Community and to themselves."
4.25 p.m.
LORD CHALFONT: My Lords, I should like first to thank the noble Marquess, Lord Lothian, for repeating that long Statement. Of course it will be necessary for us to examine it with very great care—with more care than we have had time for at the moment. However, it is a very important Statement and I hope the House will bear with me if I make certain brief comments and ask a number of specific questions on it.
I note that the proposed Agreement with regard to Euratom and I confess I am slightly puzzled by the phrase " the exchange of knowledge of equivalent
40
value". I wonder what sort of value is meant there—because these are un-quantifiable matters affecting the technology of nuclear physics. I am not sure who is going to decide what information is of " equivalent value ". I put a specific question to the noble Marquess, Lord Lothian: will he assure the House that the decision about " equivalent value " will be a political one and not one that is left to the officials of the European Atomic Community?
With regard to industrial products and tea, as the noble Marquess said, these are complicated matters and we shall await the opportunity to study the details in the OFFICIAL REPORT.
On the question of the transitional period for agriculture, the Statement indicates that the main problems have been settled. That seems to me to be rather optimistic. Six steps over five years seem to be rather less than might have been hoped for in terms of the transition for agriculture. I recognise that in negotiations certain concessions are inevitable, and it may be that this is one of the concessions that was forced upon the Government in the course of negotiations so all I can say to-day is that we shall have to wait and see how this fits into the total package. We shall have to see what concessions the Government have extracted from the Six in exchange for this important concession on their part.
On the question of horticulture, we must adopt a similar wait-and-see attitude until we see what the full package comprises. However, there is one aspect of the Statement that interests me in particular, and I should like to ask what is meant by " a slower rate " for horticulture? Does that mean that the transitional period for horticulture is to be greater than five years? If not, what is the significance of those words?
On the question of the contribution to the Community's budget, I think that the situation is still, to say the least, obscure. The formula put forward in the Statement seems to be nothing more than a face-saving version of the precise point which has been put forward from the British side for many years; that is, that the contribution should begin with a very small one and increase gradually over the transitional period. If the statement's formula means anything other

41
than that, I shall be interested to know what it is. I should also be interested to know what is meant by the corrective after the transitional period. Does that mean that the percentages of the Community's budget are to be altered? It seems to me here that if the United Kingdom is going to pay less others will have to pay more.
The question of the Commonwealth seems to be by far the most important and significant part of the Statement. I am sorry to say that for me it contains absolutely nothing new at all. There is much talk of " firm purpose " and of " a moral commitment " to the countries of the Commonwealth. If the reports in the Press are true, there was at one time talk of " bankable guarantees ". In the kinds of banks with which I am familiar, moral commitments are certainly not bankable—indeed, it would be surprising if they were. The important matter is that the Government have undertaken that there will be consultation with the Commonwealth before this agreement is arrived at. I am sure that one of the questions that will be asked of the Government by the Commonwealth countries is who will decide what the interests of the Commonwealth are after these negotiations are complete. It is all very well to say that the Community will " safeguard the interests " of the Commonwealth: I ask; who is going to decide those interests once the negotiations are complete and the Treaty of Rome is signed.
I hope that I may still have the indulgence of the House in asking a specific and important question of the noble Marquess. Will he seek an assurance, and will the Government give the assurance, that after consultation with the Commonwealth about these proposed arrangements, there will he a report to Parliament before any further negotiations begin on June 7? I was going to ask for reassurance about the kind of things that his right honourable friend the Prime Minister will be seeking to discuss in Paris, but I recognise that he can give no assurances about those matters—I doubt whether anybody in the Government can. But will the noble Marquess accept that we on this side hope that the Prime Minister, in his talks with the French President, will not make any concessions of a political or military kind outside the package of agreement
42
that his right honourable friend is trying to achieve in Brussels?
Finally, will the noble Marquess accept, that whatever may he our personal views about these negotiations, and about the whole question of European unity and the enlargement of the Common Market, there is now grave disquiet in mar y parts of this country about the way these negotiations are proceeding? And will he also accept that the Statement we have had this afternoon, on its own, will do very little to remove that disquiet?
4.32 p.m.
LORD GLADWYN: My Lords, unlike the Labour Opposition, we on these Benches have taken note of the Statement with great satisfaction. We can all regard as satisfactory—even the noble Lord who has just sat down:an regard as satisfactory—the arrangements now made regarding Euratom, raw materials and tea. The arrangements in the transitional periods for agricultural are also good so far as they go. All these arrangements, generally speaking, are acceptable as such to anybody who really wants the present negotiations to succeed. Horticulture is a difficult point. It seems, however, to us to have been satisfactorily dealt with. I agree that in any case horticulture under this arrangement gets the necessary and exceptional treatment which it must get.
As for our contribution to tie Central Agricultural Fund. this is extremely important owing to its direct effect on our balance of payments. We must clearly await the precise figures before making up our minds. On the face of it. it looks as if this point will not in itself present much further difficulty. There remain the problems affecting our tropical ex-dependencies. In spite of what the noble Lord, Lord Chalfont, has said, the great thing is that the Declaration of Intent now includes all the so-called sugar islands. They will now have no difficulty about exporting their bananas, and so on. which was the subject of concern in the debate which we recently had on this -matter. I suggest that this in itself is a matter for congratulation. It may be that the proposed undertaking on sugar it still not quite firm enough, although I should have thought that all concerned might find it, on consideration, to be so. What is undeniable is that the recent agreement in

43
Brussels has been great evidence of good will on the part of our opposite numbers.
All things considered, I repeat that anybody who wants the negotiations to succeed must congratulate the Government warmly on the progress made. We hope and believe that equally satisfactory conditions will soon be worked out as regards New Zealand's exports of dairy products. This indeed seems to be the only really serious outstanding point.
LORD BOOTHBY: My Lords, before the noble Marquess replies, may I ask one simple and brief question? Was the question of fisheries policy raised, either in Brussels or Reykjavik? If not, will it be raised at the forthcoming meeting in Luxembourg?
4.36 p.m.
THE MARQUESS OF LOTHIAN: My Lords, if I may answer one or two of the points that have already been raised—
LORD SHEPHERD: All of them.
THE MARQUESS OF LOTHIAN: I was thinking that others may be raised. May I thank the noble Lord, Lord Chalfont, for his thoughtful remarks about the Statement. He gave it a qualified welcome, having his doubts about certain matters. I am not going to make a speech, but I will try to answer as many questions as I can. The noble Lord made the point (which, I must say, had struck me when I first read the Statement) about Euratom and the question of knowledge " of equivalent value ". This is an extremely hard factor to quantify. I will give him the undertaking that the decision concerning this matter would be a political one. He also asked a question about horticulture and the concept of a slower rate. This derives from the fact that the process is going to start a year later than for the normal agricultural products; therefore, it will take a year longer. My understanding is that for matters concerning horticulture the arrangements will tend to be a great deal more flexible.
The noble Lord also talked about the financial contribution to the Community. It is in a sense true that the position has not changed greatly, in that we shall be paying a smaller amount to start with and increasing our contribution over the years.
44
As the noble Lord, Lord Gladwyn, has said, until we know what figures are proposed, it is impossible to say whether or not we shall be in a position to agree with it.
So far as the Commonwealth is concerned, and the question of the sugar arrangements, I noticed that the noble Lord, Lord Chalfont, expressed great reservations about this, that the moral commitment could not be a bankable assurance. After a great deal of negotiation, my right honourable friend—who I think the House will agree is extremely astute, competent and very firm in sticking up for the interests of this country and our dependents—came to the conclusion that this was a very firm commitment. At the same time, he said that he would not agree to it until he had consulted with his friends, the sugar-producing countries in the Commonwealth. He is hoping to do that at very short notice now. The noble Lord also asked whether I can give an assurance that the results of these contacts with the sugar-producing countries could be communicated to Parliament before the next meeting of the Six. The House will realise that I personally cannot give that assurance to-day. I will undertake to pass that message on to my right honourable friend, but I should not like to give a categorical assurance this afternoon.
I should also like to thank the noble Lord, Lord Gladwyn, for his kind and friendly reception of the Statement. He asked one question with regard to New Zealand, which is not mentioned in the Statement. The reason for this is that, apart from the fact that my right honourable friend repeated our position over New Zealand, and emphasised again the continuing and vital interest in that country, the matter was not discussed at this meeting; nor, I think, was the question of fish.
LORD CAMPBELL OF ESKAN: My Lords, while recognising and appreciating the Government's constructive intentions for sugar, as expressed in the Statement, is the noble Marquess aware that, unless beet production is effectively controlled between now and 1975, and special access arrangements settled for Commonwealth cane sugar, moral commitments and good intentions are simply not susceptible of fulfilment? The whole direction of the sugar regulations seems to ensure that

45
European beet, already in considerable surplus, will be available to supply the British market at the expense of sugar from developing countries. Would the noble Marquess agree that, whatever Britain's intentions may he to maintain room for Commonwealth cane sugar exports in an enlarged Europe, they would only be able to do so by a unanimous agreement of the enlarged Community at the expense of beet sugar, which hardly seems to me a bankable proposition—more likely" bankruptable".
Finally, bearing in mind that consultation means more than informing or explaining" After the dossier has been closed ", to quote M. Schumann, would not the noble Marquess agree that the dossier is by no means closed?
LORD AYLESTONE: My Lords, on the same point, may I ask the noble Marquess whether the proposed arrangements for Commonwealth sugar include, or exclude, sugar from Australia to the United Kingdom?
LORD ROYLE: My Lords, may I follow up the point with regard to sugar, adding to what my noble friends Lord Chalfont and Lord Campbell have tried to elicit from the Minister. Does this Statement actually mean that the situation as it is at the moment, and the system in operation at the moment with regard to guaranteed prices and guaranteed sale and purchase, will continue without interference?
4.43 p.m.
THE MARQUESS OF LOTHIAN: My Lords, I realise of course the genuine worry that is felt in all parts of the House on the question of sugar. I take the point that the noble Lord, Lord Campbell of Eskan, is making, regarding the possibility of flooding the market with beet sugar over the next few years. I suspect that it is not the case that the French, for example, can increase their beet production very much under their present Market rules. At the same time, of course, if they had anything in mind, it would in my opinion—and I think in the opinion of the Government—be a direct breach of the firm commitment which was given to my right honourable friend in Brussels last week.
I can only say that my right honourable friend is convinced that the assur-
46
ance and the commitment teat he got from the Community really is a firm one, and it means what it says: that the Commonwealth exporting sugar countries should not suffer in any way under the arrangements that are proposed. At the same time, he is going to consult with them, and have, I should tell the House, very deep consultations with them before agreeing to this proposal. On the question of the noble Lord, Lord Aylestone, I should like to have notice of that point because I am really not aware of the answer.
LORD SHEPHERD: My Lords, is it not a fact that from time to time countries within the Common Market have themselves broken their rules under the Treaty of Rome? May I ask, in view of the assurances that the noble Marquess believes have been obtained from the countries of the Common Market, whether one country would have a right of veto on any continuation of this agreement when perhaps the other five, or other members of the Community, were prepared to go along with it? This question was asked of the Prime Minister in another place on Thursday, and I wonder whether the noble Marquess can answer it now.
THE MARQUESS OF LOTHAN: My Lords, one would hope it would never come to any question of a veto. My understanding is that it would be extremely difficult for five countries out of the Six to go ahead if one—at any rate of the major countries concerned—expressed disapproval.
LORD SHEPHERD: My Lords, so there is a veto.
LORD BALOGH: My Lords, will the noble Marquess not agree that the ex-British Caribbean countries have received very different treatment indeed from the French Caribbean countries, which are able to sell unlimited quantities of cane sugar at £90 a ton in the European Community? The very great victory and concession does not seem to quite so glorious as it seems to be to the noble Marquess. I would like also to ask him whether he would not agree that the Statement ought to be published in the original French, because in the translation there are many slips between the intention and the performance?

47
Would he not agree also that in that Statement it is not simply the quantity and the proceeds that have to be guaranteed? It is very possible that words, which I remember the noble Marquess used, on " safeguarding the general interest of these countries " can well mean that, instead of the sugar, a subsidy will be offered to the Commonwealth countries, in which case some of those countries which cannot switch from sugar—such as Mauritius and Fiji—would really be condemned to a slow death?
Will he finally not agree with me that, to say the least, my interpretation of this assurance is very much more in common with an advertisement of the French beet sugar producers, which I can let the noble Marquess have if he so desires? He does not seem to be very well informed on what is going on in France. It says precisely that there will be no guarantee for the sugar proceeds.
LORD ORR-EWING: My Lords, is it not true that there are already 18 or 19 ex-Colonial developing countries which get special trading agreements under the Yaounde Agreement? If we enter the Common Market would we not be able to negotiate quite as favourable terms for our ex-Colonial and developing countries in respect of sugar and every other commodity? Is it not also true—the question of veto arose—that if we are inside the Common Market we would be able to exercise a veto just as well as anyone else?
LORD BOOTHBY: Hear, hear, on fish!
THE MARQUESS OF LOTHIAN: My Lords, if I might reply first of all to my noble friend, it is perfectly true as he says about our 19 Commonwealth countries who are associated under the Yaounde Agreement. It is also perfectly true that the countries that are not at the moment associated with the Common Market—the countries we have been talking about this afternoon—can negotiate a similar type of agreement if they should wish to do so. That will certainly protect their interests very greatly. The noble Lord, Lord Balogh, really drew attention to the same point when he pointed out that the French-associated
48
countries under the Yaounde Agreement do appear to have great advantages at the moment.
LORD BALOGH: My Lords, with due respect, the noble Marquess misinterprets my words. On the contrary, I said that the French Caribbean islands, which are not in the Yaounde Agreement—if I may correct the noble Marquess with great humility and respect—have received a completely different settlement. So far as the Yaounde Agreement is concerned (and I have just been to Madagascar on United Nations business), they have not got safeguards on sugar. On the contrary, they have been left in the most miserable condition so far as sugar is concerned, and they are now trying to negotiate with one another to substitute for the original sugar situation.
4.50 p.m.
THE EARL OF SELKIRK: My Lords, my noble friend talked about legal arrangements with dependent territories except Hong Kong. Are we excluding Hong Kong from any part of these negotiations or considerations?
THE MARQUESS OF LOTHIAN: My Lords, the question of Hong Kong has been left at the moment, because both Hong Kong and ourselves have agreed that this matter should be left open for the time being. I cannot remember exactly whose questions I am meant to be answering. The noble Lord, Lord Balogh, suggested that the Statement—I do not know whether he meant this Statement—ought to be in French. I agree with him that some of the difficulties facing negotiations of this type—and this is why it is so important to go slowly—arise precisely because of difficulties of translation from French into English and vice-versa.
LORD WELLS-PESTELL: My Lords, when the noble Marquess referred to Euratom at the beginning of the Statement, he said that exchange of information of equivalent value would have to be discussed immediately after our entry. Does that not imply that decision to enter has already been made.
THE MARQUESS OF LOTHIAN: No, my Lords; it does not imply that at all. All the remarks which I have made on this Statement and elsewhere are remarks

49
contingent on the possibility of our entering. Obviously, this is another difficulty of verbiage, but in this case I think English is quite satisfactory to make our meaning clear.
LORD HOY: My Lords, may I ask one further question about the fishing industry? We find it extremely difficult to understand how a meeting of E.F.T.A. could be held in Reykjavik, of all places, without the position of the fishing industry arising. Fishing is of absolutely paramount importance to Iceland, as well as being of importance to this country. Can the noble Marquess tell us whether, if they have not already discussed it, it is the intention to discuss this subject at the next meeting of Ministers in Luxembourg?
THE MARQUESS OF LOTHIAN: My Lords, to be absolutely frank, I do not know whether or not this matter was discussed at Reykjavik. I should think it very probably was. My feeling is—and I speak subject to correction—that this is one of the subjects which will be discussed at the next meeting. But this is really a matter for my right honourable friend and I shall certainly pass on to him what the noble Lord has said.
LORD SHINWELL: My Lords, is it not obvious that these provisional agreements and alleged concessions mean only that the Government are getting ready for the " sell out "? Is not that what they really mean? There is really nothing substantial in any of the concessions. I should like to ask the noble Marquess about the proposed meeting between the Prime Minister and the French President. Can we have some assurance, following what my noble friend Lord Chalfont said on another point, that the Prime Minister, in his subterranean undercover fashion, is not going to agree to some political alignment which would be unacceptable to the majority of people in this country? In particular, can we have an assurance that there will be no understanding about providing the French Government with any atomic know-how which has hitherto been desired by the French, but which has been prevented from getting to them?
THE MARQUESS OF LOTHIAN: My Lords, I fancy that no agreement to which my right honourable friend could
50
come in Brussels would satisfy the noble Lord, Lord Shinwell. I cannot agree with him that this is in any way a " sell out ". As to what my right honourable friend the Prime Minister is going to discuss with the French President later this week, I am sure that he will take note of what the noble Lord has said. I have no doubt that the talks will be very wide-ranging indeed.
LORD BROCKWAY: My Lords, refraining at this moment from political argument, may I ask one incidental question? I he Statement named the sugar countries in considerable detail—the Caribbean islands, Mauritius, Fiji. Tonga and others. Was the exclusion of Swaziland deliberate? Was it because it has associations with the South African agreement regarding sugar? I should like an answer to that question.
THE MARQUESS OF LOTHIAN: My Lords, I am sure that there is no hidden, sinister reason for the non-mention of Swaziland in the Statement. I think the noble Lord is quire wrong about that.
LORD LEATHERLAND: My Lords, may I ask a question as a man who provides the housekeeping money each week? My question concerns the noble Marquess's statement on the agricultural transitional arrangements. He said that our six years' transition to Community prices will give us time enough to make adjustments. Will he tell us whether the word " adjustments" means increases in food prices?
THE MARQUESS OF LOTHIAN: My Lords, " adjustments " means going through the process, which in fact has already begun in this country, of changing over from one system to another.
LORD LEATHERLAND: My Lords, the noble Marquess is a mister of language, but there are words such as Yes and No. Will this mean an increase in food prices?
THE MARQUESS OF LOTHIAN: As the noble Lord knows, food prices have been increasing in this country for very many years past.
LORD LEATHERLAND: My Lords, the noble Marquess has not answered the question. Has he something to hide? Can he answer it?
THE MARQUESS OF LOTHIAN: My Lord, I have nothing whatsoever to hide on this point.
BARONESS PLUMMER: My Lords, at the risk of boring the House about sugar, it seems that the operative word in the sugar problem is "safeguards". I should like the Minister to elaborate on the word "safeguards", because I have not heard anything about them. I may be hard of hearing. Will he take into account the different conditions in various countries? As the noble Marquess knows, the cane sugar countries have to plan ahead, but the sugar beet countries need only a year.
THE MARQUESS OF LOTHIAN: Yes, my Lords. Of course this is something which my right honourable friend is going to take into account, and it will no doubt be one of the matters which he will be discussing with the countries concerned.
LORD CHALFONT: My Lords, I think the House will probably agree that we have had a very good innings on this long and important Statement. If the House agrees, perhaps I can bring it to a close by asking one final question which leads from something that my noble friend Lord Shinwell asked. My noble friend asked about the exchange of nuclear military information with the
French, to which the noble Marquess returned a suitable Parliamentary answer. I should like to put it in this form. The Government have already given assurances that this subject will not he discussed in the context of the Common Market negotiations. Has the Government's position changed.
THE MARQUESS OF LOTHIAN: No, my Lords; it has not changed.

INDUSTRIAL RELATIONS BILL
4.58 p.m.
House again in Committee.
LORD STOW HILL: I do not wish to prolong the discussion on the Amendment before the Committee, but, if I may say so with respect to the noble Lord who answered on behalf of the Government, I do not think his answer was really satisfactory. So unless other noble Lords wish to prolong the discussion by further contributions, I very much hope that the matter may be decided in the Division Lobby.
On Question, Whether the said Amendment (No. 238) shall be agreed to?
Their Lordships divided: Contents, 55; Not-Contents, 117.

CONTENTS

Archibald, L.

Faringdon, L.

Plummer, Bs.

Arwyn, L.

Gaitskell, Bs.

Popplewell, L.

Balogh, L.

Gardiner, L.

Royle, L.

Bernstein, L.

Garnsworthy, L.

Samuel, V.

Beswick, L.

Hall, V.

Serota, Bs.

Birk, Bs.

Henderson, L.

Shackleton, L.

Blyton, L.

Hilton of Upton, L. [Teller.]

Shepherd, L.

Bowden, L.

Hoy, L.

Shinwell, L.

Brockway, L.

Jacques, L.

Silkin, L.

Brown, L.

Janner, L.

Slater, L.

Burton of Coventry, Bs.

Kennet, L.

Sorensen, L.

Chalfont, L.

Leatherland, L.

Stonham, L.

Champion, L.

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

Stow Hill, L.

Collison, L.

Summerskill, Bs.

Cooper of Stockton Heath, L.

McLeavy, L.

Taylor of Mansfield, L.

Crook, L.

Maelor, L.

Wells-Pestell, L.

Delacourt-Smith, L.

Moyle, L.

White, Bs.

Diamond, L.

Nunburnholme, L.

Wynne-Jones, L.

Douglas of Barloch, L.

Pargiter, L.

NOT-CONTENTS

Aberdare, L.

Ashbourne, L.

Berkeley, Bs.

Ailwyn, L.

Balfour, E.

Blackford, L.

Albemarle, E.

Balfour of Inchrye, L.

Bridgeman, V.

Alexander of Tunis, E.

Barnby, L.

Brooke of Cumnor, L.

Allerton, L.

Barrington, V.

Brooke of Ystradfellte, Bs.

Alport, L.

Beauchamp, E.

Burgh, L.

Amory, V.

Beaumont of Whitley, L.

Carrington, L.

Amulree, L.

Belstead, L.

Clwyd, L.

Coleraine, L.

Hankey, L.

Orr-Ewing, L.

Colgrain, L.

Harlech, L.

Penrhyn, L.

Conesford, L.

Harvey of Prestbury, L.

Rathcavan, L.

Cottesloe, L.

Hatherton, L.

Rea, L.

Courtown, E.

Hawke, L.

Rennell, L.

Coventry, Bp.

Hood, V.

Rockley, L.

Cowley, E.

Howard of Glossop, L.

Rothermere, V.

Craigavon, V.

Hylton-Foster, Bs.

Ruthven of Freeland, Ly.

Crawshaw, L.

Ilford, L.

St. Aldwyn, E.

Daventry, V.

Inchyra, L.

St. Helens, L.

Denham, L. [Teller.]

Jellicoe, E. (L. Privy Seal.)

St. Just, L.

Derwent, L.

Jessel, L.

Sandford, L.

Drumalbyn, L.

Kemsley, V.

Savile, L.

Dudley, E.

Killearn, L.

Selkirk, E.

Eccles, V.

Lansdowne, M.

Semphill, Ly.

Elliot of Harwood. Bs.

Latymer, L.

Sinclair of Cleeve, L.

Emmet of Amberley, Bs.

Lothian, M.

Somers, L.

Essex, E.

Lucas of Chilworth, L.

Stonehaven, V.

Exeter, M.

Lyell, L.

Strang, L.

Ferrers, E.

MacAndrew, L.

Strange, L.

Fortescue, E.

MacFadzean, L.

Strange of Knokin, Bs.

Fraser of Lonsdale, L.

Margadale, L.

Sudeley, L.

Gladwyn, L.

Merrivale, L.

Swansea, L.

Goschen, V. [Teller.]

Meston, L.

Swaythling, L.

Grantchester, L.

Milverton, L.

Tangley, L.

Grenfell, L.

Monck, V.

Tenby, V.

Grimston of Westbury, L.

Morrison, L.

Tweedsmuir of Belhelvie, Bs.

Hacking, L.

Mowbray and Stourton, L.

Vivian, L.

Hailes, L.

Napier and Ettrick, L.

Willingdon, M.

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

Northchurch, Bs.

Windlesham, L.

Oakshott, L.

Wolverton, L.

Halsbury, E.

Resolved in the negative, and Amendment disagreed to accordingly.

5.8 p.m.
On Question, Whether Clause 31 shall stand part of the Bill?
LORD STOW HILL: This clause really serves two separate purposes, one of which we have not yet considered, and that is the purpose which is set out in subsection (1). That subsection, as I understand it, really has this effect. Where an employee complains that he has been unfairly dismissed, or he complains of action taken against him under Clause 5 of the Bill, it shall not lie in the mouth of the employer to plead in mitigation, as it were, that he was under pressure from the union. Under Clause 22(4), an employer, even if he can show that the dismissal of an employee had nothing to do with his taking part in any of the conduct which is described earlier in the clause, must nevertheless go on to show that the dismissal was for good reason anyhow. As I understand the first subsection of Clause 31, in endeavouring to show that there was that good reason he cannot pray in aid the fact that he was put under pressure from the union to dismiss that man. If I have correctly understood that as being the effect of subsection (1)
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of Clause 31, personally I have no quarrel with it. It may pro Rice odd results in some rare cases, but I should have thought that in the great majority of cases it would constitute a safeguard to the employee who is comply ping that he is being unfairly dismissed, and upon that assumption I make no, further comment on it. My observations on the Question whether the clause shall stand part will be concentrated entirely on that which is set out in subsections (2), (3) and (4) of the clause.
Inevitably, when we were discussing the Amendment which was before the Committee a number of things were said on each side of the Committee which, in a sense, fall more into their place on the Question whether the clause shall stand part. and I hope that in dealing with the general question I shall be able, so far as I possibly can, to avoid mere repetition of what we have already said. One thing which is certainly not mere repetition is that I should like to say most sincerely to the noble Lord, Lord Drumalbyn, that I think his endeavour to justify this clause was extremely helpful and very painstaking, and showed that he had given it a lot of thought. Indeed, throughout the whole of our debates he carried a massive burden, for which we are all grateful to him. If a

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Minister who has at his disposal such expertise and acuteness of mind as has the noble Lord, Lord Drumalbyn, could not produce better justification of this clause, then we on this side of the Committee are justified in retaining some of the suspicions that we had when we first saw it. I, for my part, confess that I do.
May I put the point in the form of an imaginary dialogue to see how the clause emerges in my view, after hearing criticisms of it from this side and justification of it by the noble Lord. Let us assume that the participants in the dialogue are the trade unions, through their representative, and the employers, through their representative. A situation has arisen in which the trade union want there to be a closed shop:
The employer: "I do not want it and I do not propose to take any steps towards it."
The trade union: " Will you join in a joint application? "
"No."
The trade union, beginning to rise a few degrees in temperature of feeling: "If you will not join, then I think that is unreasonable and I shall begin to bring some pressure to bear."
"What pressure?"
"I shall not strike, I shall not bring any industrial action short of a strike; but I shall start to work to rule."
"If you do that I shall take you before the court and seek compensation and an injunction against you."
"You could have done that if I threatened to strike or if I organised or financed a strike or threatened to do so. But the Conservative Government, in their wisdom, in disposing of these particular problems have so enacted their legislation that I am perfectly entitled to threaten you in the most violent language—as I do now—that I will start a work to rule '."
The employer scratches his head and says: "I cannot think that the clause is so worded that although you cannot threaten to strike you can threaten to work to rule."
That is precisely what the position is; and if they have doubts about it and try to resolve the position, all they need to do is to read Lord Drumalbyn's speech in Hansard where they will see that the noble Lord agreed that that was so. He agreed in terms that so long as the trade union does not threaten to do anything which involves a breach of the contract of employment, they can do what they like; they can threaten and embark upon that type of industrial action. I do not know that that is the way in which the Government want to leave this clause. I
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do not want to use hyperbolic terms, but I cannot conceive any situation more absurd. If the Government want to prevent pressure from being brought, then they are not achieving their object here, or going anywhere near it, when they say, through the avowal of the Minister who considered it, " You can bring as much pressure by way of work-to-rule arrangements as you wish, but you must not strike or finance a strike".
I dislike this clause because I think it would be simply a source of dissension between both sides. It will never produce any advantage; it will never conduce in the slightest towards a pacific relationship between the two sides. It will simply mean that the two sides will dislike each other and that a state of anomosity will prevail; whereas if the alternative procedure had been available, application by the trade union in spite of the employers, they would have got the matter resolved by some sort of judicial process. Noble Lords on this side do not like the intervention of the courts; but if the courts are there—and the Committee have approved that—let there be some sensible use made of the court procedure; which is better than leaving the two sides at arms' length, gazing at each other with no possible way out of the dilemma.
I venture to remind the Committee that the noble Lord, Lord Donovan, in his Report did not say that a closed shop should be forbidden: he said that they perform useful functions. But he made certain reservations. In a sense, the Government have gone towards some of them, though not far enough, by producing Clause 16. But they have left this sore place which will fester and which will remain for years (until it is altered by a new Government) and which will perpetuate dissension between both sides of industry. I think it an intolerable arrangement, and still more so when it is completely upside down and inside out; when it leaves out, because of a quirk in drafting, pressure which can be just as effective by working to rule. That you can always do; but you must not strike. What could be more absolutely topsy-turvy or less likely to produce amicable relationships between the two sides?
LORD BROWN: The whole of the discussion about working to rule is postulated in the idea that the rules are

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absurd: otherwise, working to rule is precisely what the employer wants. We all know that there are certain industries like the railways and others where the safety of the public is concerned and where the rules which are worked out are sometimes archaic and sometimes so detailed as to allow a " go slow " within the ambit of the rules. But looking over industry in general, this rule book which keeps on being referred to does not really exist. That is why I repeatedly question the use of the term by noble Lords. In an engineering factory, if you say What is the rule book?" they will gaze at you in bewilderment. There are lots of policies, either written or unwritten which ought to be agreed to and committed to writing. If one refers to the policy book on conditions, that does not open up the possibilities of " going slow " under the terms of the agreements that have been come to between employers and trade unions. It seems to me that all the comments are directed at particular industries where a large safety factor is involved; although they are being talked about as though they apply to all forms of employment.
I am not taking sides in this issue. I have already stated that I think the Government have been crazy not simply to take the whole question of the closed shop and say that it shall he subject to the scrutiny of the Industrial Relations Commission. Some then would be given a certificate of health and others would be abolished according to whether they infringed too deeply the rights of the individuals. By doing that, we could have avoided the terribly complicated legislation which is now before us. Having taken that stand. I view this complication with some despair. I do not think we ought to make it look more complicated than it is or we shall be here until 8 a.m. every morning until the end of July.
5.20 p.m.
LORD POPPLEWELL: I can understand my noble friend saying that he does not want it to be more complicated than it is, but the fact is that it is complicated, and once again the only persons who will benefit are those in the legal profession. The wording of this clause is so ambiguous to the ordinary men in industry that it will be difficult to assess whether they are working in accordance
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with the Act, as it then will be, or whether they are deviating from the Act and making themselves ultimately liable to legal discipline. Clause 31(2) states:
" It shall be an unfair industrial practice for any person (including any trade union or other organisation of workers or my official of a trade union or of such an organisation) to take any action to which this sect on applies, if the purpose or principal purpose for which that action is taken is—"
What does that mean? Does it mean any discussion that might take place amongst a group of workers regarding any difficulties they are encountering, which ultimately leads to a request for a closed shop? Is that officially are irregular practice or not? It may be that a group of "nons" within the industry are a bit cheeky—they act in that way from time to time—and this stirs a body of men to say, " It is time they joined up ". These men then commence organising a movement towards that end. Is that an irregular practice or not?
On the question of working to rule, my noble friend Lord Brown indicates that the rule hooks are there chiefly for the safety of the travelling public and people engaged in industry, and I hat the employer wants workpeople to work to rule. I suggest that my noble friend knows nothing about transport when he talks like that. In the engineering world certain codes of practice have been developed; there are very few written rules. That is the case in many other industries. These codes of practice are accepted by both sides and are talked about loosely as " working to rule ". If, in an engineering shop, there is difficulty regarding establishing and settling a grievance, imaginary or otherwise, there is possibly a code of negotiating machinery laid down which is honoured very of en more in the breach, because in mar y shops instead of taking quick action there is delayed action and the men start saying, " Look, there are quite a number of nons ' in here. We have not got this tied up as quickly as we might have done; we have approached our employer from time to time and he has refused the idea of a closed shop. So now is the time to take action ". These are the realities of life.
With the clause as it is now worded an irregular practice may take place; but although the machinery might be established it has not gone through its full course. Often, this not the responsibility

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of one side only. Instead of commonsense prevailing, the management or the foreman may say, " This is what we will do and get on with it ". But the men may have rather a different point of view. Ultimately, these things lead to a clamour for a closed shop in order to bring more pressure to bear. Is this going to be an irregular practice or not? I suggest that quite a lot of time will be occupied by the tribunals, the courts and possibly the High Court in order to settle these matters which could have been settled by common sense if the system were allowed to operate as it does now.
There has been a great growth in industry over the last few years of the closed shop. Possibly 3 million or 4 million people are now working under the auspices of the closed shop. Instead of attempting to make a definition, I think that the ordinary free play of bargaining and counter bargaining within industry ought to prevail. I do not think the Government are going to withdraw this clause, but I suggest that good industrial relations are likely to be bedevilled and, instead of the harmony in industry that we all want, this is another little wedge to create disharmony.
LORD SLATER: As I mentioned during the debate on the previous Amendment under the law, the miner is working with a time provision of 25 minutes to the mile. I said that when six men come out two minutes early, in effect that means 12 minutes, and the management in its judgment imposes a penalty on these miners. If these miners had stayed at the coal face they would have been able to produce one or two tons more of coal. Action by the management could lead to action being taken by the men. They may say to the management " If this is what you are going to do your colliery will stop ". The noble Lord has never attempted to answer my question. We are going to be governed in this industry by two Acts. Which one is the miner to keep to? One provides for 25 minutes to the mile, and now this one imposes penalties from the employer.
5.30 p.m.
BARONESS GAITSKELL: I am against this clause standing part, on general grounds. As I have said, I am not a lawyer and I am not a trade unionist. This
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is a crucial clause but I think it is very hard to follow. I am particularly opposed to subsection (4) because I think this takes away the fundamental human right of a man to withdrawn his labour. The Government seem to me not to recognise that there are concerted actions which can be regular and legitimate. If they do not recognise that fact and there is a case of concerted action which is regular, this means that there is a strike and that this strike can reduce or interfere with the production of goods. Therefore, this clause seems to me to go altogether too far and too wide, and it evades the real problem of what the Government calls irregular industrial action.
LORD BROWN: I should like to make it clear that there is at least one person on these Benches who understands that this clause is concerned solely with the case where someone puts pressure on an employer to deprive other workers, as individuals, of their rights. It is very trying to hear this clause discussed in terms regarding matters to which it has no relationship whatever.
5.31 p.m.
LORD PARGITER: I will not detain your Lordships for long. I think that any sympathy which the general public had with the Tory Party and the Tory Government has rapidly evaporated; and the way in which this matter has been presented, both to the Commons and to this House, is indicative of that. We started off with a very simple project, agreed very largely by all parties and all concerned, that there was a need to curb wildcat strikes. That was the premise from which we started. There was no particular quarrel about that: we were all agreed that some regulation was necessary to prevent people from striking just for the sake of striking and throwing thousands of other people out of work.
The attitude of the Labour Party was that this could best be done by voluntary means; and the Labour Party still stand by that. The Tory Party, having started off on this particular line, and having decided to give it certain legal backing, find themselves in increasing difficulty because they find they now have to give a legal interpretation to everything that is done; every agreement has to be legally agreed. Also, this particular clause has its legal enforcement which is designed, or

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said to be designed, to protect the rights of individual workers. But the rights of individual workers are already well protected because, as I understand it, in a closed shop the conscience clause applies to an individual worker in the same way as it applies to a worker in an agency shop. In other words, the worker can still exercise his individual right if he wishes. There is no question of curtailing the rights of the individual. There may be some question of curtailing rights of the employer.
LORD BROWN: May I interrupt? The noble Lord is looking at me. Of course the individual rights of the worker are protected so long as this does not allow his fellows to threaten an employer, by strike action, to sack him. That is what this clause is about.
LORD PARGITER: The fact is that it is already established that a person who complies with the necessary clauses that have been passed is already protected. There is no question that the employer can sack a person, or that the men with him can require a man to be sacked. The fact of the matter is that there is a dislike of the closed shop—and I gather that my noble friend Lord Brown equally dislikes it. I should like to refer to the many branches of the engineering industry. My argument is that the closed shop generally is very beneficial in the engineering industry as a whole. My noble friend said there was no such thing as a rule book in the engineering industry.
LORD BROWN: I must interrupt my noble friend again. I never said that I disliked the closed shop indeed, I think it is necessary and a good institution, in proper circumstances. My noble friend misquoted me.
LORD PARGITER: I am sorry if I misquoted my noble friend. But the whole of his arguments appear to be directed to making it as difficult as possible to get a closed shop. I should have thought that if he liked it he would wish his arguments to be rather more simple ones so that they could be applied. What I am concerned about is that everything done here makes the closed shop more difficult and applies penalties. If anything could be construed in any way as pressure on an employer, it should be construed in the simplest way. Let me give an example.
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Take a machine shop in which piecework is the general practice. I know employers who always used to extol piecework, but they have now moved away from it and want measured day work, because they have found that the idea of setting one worker against another is not satisfactory. However, let us take the argument that a group of workpeople decide that they want a closed shop and the employer does not agree. They say, All right, the piece rate is so much: we are guaranteed minimum earnings anyway, and a guaranteed day rate. We will work for the guaranteed day rate." This is a form of " going slow ". Just precisely what would happen?—because the worker is corn-pelted to work piecework, but the employer is compelled to pay him a minimum day rate. That would presumably be construed by the Court as an unfair industrial practice, and this would lead to all kinds of trouble because the men might decide to work just part of the way between getting the minimum day rate and as much as they could. There are all sorts of points in various industries which could create difficulties. It would be infinitely better to get away from it altogether and leave it to the good sense of the workpeople and the employers concerned to agree or disagree on whether they want a closed shop. If the employer agrees to certain conditions demanded by the work-people to get the closed shop. even if he wants something out of it—and let us face it: the employer usually wants something out of it when he is prepared to agree to a closed shop and to negotiate for satisfactory conditions—under present conditions this would be construed as pressure.
LORD BERNSTEIN: Your Lordships have probably been bored by my comments about the legalistic clauses in this Bill. I agree with the noble Lord, Lord Popplewell, about lawyers. A new situation has now arisen which I think your Lordships should seriously consider. Lord Drumalbyn said (I think I have his words right) that one of the merits of the clause was its psychological effect. Are we now introducing an additional professional group of psychologists into this Bill? If so, that opens up, as one might say, a new '' can of peas ", and I do not know where that leads us. We have had great confusion

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here this afternoon on the question of the rule book and the closed shop. In the company with which I am involved, the rule book is the union rules as agreed with management. That is what it is called. This rule book does not in any way override the Factories Act, Fire Precautions Regulations or any other orders, municipal or national.
It seems to me that everybody has been talking this afternoon as if they do not understand Clause 31. The noble Lord, Lord Stow Hill, said he did not understand it, and he raised a great many points, and so have other of my noble friends. I do not believe it can be understood in any way without taking account of Clauses 114, 110 and 115, and you have to be a pretty good lawyer to keep all those in your head and then say to workpeople how those clauses will operate, so far as their livelihood and freedom are concerned. Clause 31 was not in the Bill which was originally introduced into the House of Commons: it came later at the Report stage, with what is now Clause 114; and perhaps not enough time has been given to this Clause 31. Have the Government really appreciated that people on this side of the House can take seriously the implications of the Clause? If the Government could satisfy us by taking the clause away and, in Lord Jellicoe's words, giving sympathetic consideration to it, that would give clarity at least to a layman like myself.
5.40 p.m.
LORD DRUMALBYN: The noble Lord, Lord Brown, is of course quite right in this matter. He at any rate has shown that he understands this clause. The clause starts off by seeking to add a protection to the employee against dismissal by saying that no account is to be taken of any pressure exercised by a union on an employer. In other words the employer cannot say, " Well, it is not my fault. I was forced to dismiss this man and therefore I should not have to compensate him ". I think the noble Lord understood that. But, of course, the noble Lord, Lord Bernstein, is quite right in saying that under Clause 114 it is possible for the employer then to say, " I was brought under pressure. I have to pay this compensation, but the union
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must make a contribution because they made me do it "—and that is right, too. That is the way in which the clauses are linked. I was trying to explain to noble Lords that it is intended as a protection for the individual that in the same way it should be an unfair industrial practice for an employer to be pressurised by a union to join in making an application for an approved closed shop agreement. I think I must have another brief attempt to make clear exactly what is involved as to irregular industrial action. I should say first that where something is recognised as being unfair and it is provided that it is therefore an unfair industrial practice to strike to achieve it, it would be absurd then to allow that same unfair objection to be achieved by irregular actions. That is obvious and I need not develop it.
Secondly, what is the "irregular practice"? The noble Lord, Lord Popplewell, seemed to think that calling a strike was in itself an irregular industrial practice. It is not, of course. The irregular practice is intended to cover such concerted action, as I have already explained, as a refusal to work overtime, a "go slow" or other methods aimed at reducing normal production where such action is in breach of contract of employment. That is the point I have been trying to make the whole time. Noble Lords must now let me make it quite clear what this will mean—where it is in breach of terms and conditions of service. As I made clear, the rules may be linked to the contract of employment. The " work to rule ", which by definition would not be a breach of the contract of employment or any terms and conditions of service, would not normally come within the scope of the definition. Again the noble Lord, Lord Brown, is quite right in saying that there are some rules which are worked to every day in the week. This is the general procedure. There are other rule books which may have grown up over a long period and some of the rules, though not normally used or being somewhat anachronistic are obsolete, and in the normal way are disregarded. In some cases it might be possible to revise those. That is all I was arguing. That is not the normal position. It may be the position in some

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industries but it is not the normal position. A " work to rule ", which by definition would not be a breach of contract of employment or any terms and conditions of service, would not normally come within the scope of this definition; but any departure from the work to rule or any exaggeration of the work to rule would come under the definition.
LORD STONHAM: If men are engaged and have a rule book, it does not matter whether or not the rules are observed constantly, the rule book or the rules are part of their contract of employment. If the men are observing those rules and carrying them out, how can they be guilty of an unfair industrial practice or indeed even of an irregular practice? If the noble Lord will look at the words of the Bill, he will see that paragraph (b) of subsection (4) says:
" in the case of some or all of them, is carried on in breach of their contracts of employment or (where they are not employees) in breach of their terms and conditions of service."
How on earth can a railwayman, working by the rules on which he was engaged, be in breach of his contract, or guilty of an irregular practice? That is the point that has to be made all the time throughout the debate from this side of the Committee. It has not been answered because it cannot be answered.
LORD DRUMALBYN: I thought I had made the position quite clear, and I hope noble Lords will accept that the object of this clause is to ensure that where there is an unfair purpose to be achieved it should be an unfair industrial practice either to strike or to do something short of striking which also serves very much the same purpose. That is the purpose here, and it seems to me to be an entirely reasonable purpose.
LORD POPPLEWELL: Surely the noble Lord made a slip when he stated —and I quote him—" Refusal to work overtime would be an irregular practice ". In fairness to the noble Lord, surely that is not to be taken as the opinion of the Government? All overtime work is voluntary. There is a stated number of hours per week in which people in industry will work, and anything over and above that time is classed as overtime and is not compulsory. Surely the noble Lord would like to correct that statement.
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I feel it was a slip of the tongue, but if it goes uncorrected it will have very serious consequences.
LORD DRUMALBYN: I must try to say once again that everything depends on the contracts of employment. If it is written into the contracts of employment that overtime will be worked when called for, then concerted action—and those are the words " concerted action " —not to do overtime could be an irregular industrial practice.
LORD BERNSTEIN: I am sorry to interrupt the noble Lord, but.hat is an unrealistic statement. Overtime is voluntary: it always has been and it should remain so. If it is not in the contract but people have done it, either to earn extra money or to get products out of the way for export, they have done it on a voluntary basis and with no obligation to continue. If they decide not to do that and do not state any reason, would that be an unfair industrial practice? The Government are stretching this very much.
LORD DRUMALBYN: The reason is referred to in the clause. The reason is the purpose to compel the employer to join with the union in making an application for an approved closed shop. if that is the purpose it is an unfair purpose and it is unfair to concert together to achieve that purpose.
LORD STOWHILL: The sense of the Committee, as I gather it, is that we are now fairly close to the end of this particular debate, and I would not desire to prolong it. I do not want to enter into the discussion as to who understood what, but perhaps I may modestly say on my own behalf that I still feel that I do understand the clause and I do not want to go into its aspects further. May I repeat what I was trying to put to the noble Lord, and what he quite clearly understood? First, it is illogical, and rather absurd, to say that it is an unfair industrial practice to organise or call a strike, or organise a go slow, but it is not an unfair industrial practice to threaten or organise a work to rule. A work to rule can be just as effective a means of bringing industrial pressure as other forms of industrial action. One constantly sees in the Press that it is resorted to. All I was putting

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to the noble Lord was that it was really rather an absurd clause in that it permitted one but forbade the other. That is simple, and I gather the noble Lord agrees that that is what the clause does. I simply put it before the Committee as a reason for not approving the scope, shape and objective of this clause, and I do not resile from that.
LORD DRUMALBYN: May I intervene to ask the noble Lord whether he is really arguing that because one cannot do all the good one wants one should not do any of the good, and should not do it where one can?
LORD STOW HILL: The proposition from which I am arguing is that it is not desirable to put before Parliament, and ask Parliament to approve, something which is utterly absurd and preposterous. That is what this is. To say people must not strike but that they may do other things which are just as effective as a strike, and to say that solemnly in the words of an Act of Parliament, is not conducive to common sense or to achieving any useful purpose. That is the point, and I will not go back on it.
Secondly, my next point, to which I still adhere, is that this arrangement will not introduce industrial peace; it will produce the reverse. Again, I do not go back on that. The third point I made was that the first subsection is an arrangement with which I personally would not wish to quarrel. It is conducive to the better safeguarding of the rights of the individual.
It was for those reasons that I submitted that this was a bad clause. It is not the slightest use hoping the Government will abandon the clause; they quite obviously will not. They have the majority. This is a democracy. We on this side of the Committee must put up with that. We accept that. But in an endeavour to produce what I hope would be not a wholly unfruitful result to this debate I would, before I sit down, ask the noble Lord, who is very reasonable, very accommodating, and does try to see the point of view of the Opposition in these matters, just to give further thought to what I have adumbrated, both on this occasion and on previous occasions when we were discussing a similar topic, when I suggested that he might alter the form of Schedule 1.
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A good deal of the difficulty could be obviated if Schedule I were altered. Its present form requires an application for an approved closed shop to be made jointly, by both the trade union and the employer. That Schedule is obviously going to stay in the Bill. The court's intervention is obviously going to stay in the Bill, whether we on this side of the Committee approve it or not. So it is no good arguing about that. What I would suggest is that, once it is there, much more effective use can be made of it if it is altered so as to accord with the provisions which are in the Bill with regard to the initiation of an agency shop. An agency shop—and this I have said before, and I apologise for repeating it—can be made as the result of a unilateral application by the trade union, despite the employer and against the resistance of the employer. if there is such an application, the court, the Commission and, if necessary, a ballot have to process it.
I respectfully ask the noble Lord to think about this again. Perhaps he can come back with something approaching it on Report, to say that there is not really an adequate distinction between the agency shop and the closed shop to justify that very radical difference in the form of the application—a unilateral application for an agency shop, but only a joint application for a closed shop. I know the noble Lord has answered this before, and he gave us a careful and reasoned answer which was to the effect that, in the view of the Government, the closed shop should be allowed much more sparingly than the agency shop. I would hope that the noble Lord might be able to say that he thinks there is weight in what has been said from this side of the Committee; that he understands the anxieties of noble Lords on this side of the Committee; and, taking that into account, and weighing it in the scales, he will look again at what I suggest as a way round this difficulty.
If there can be a unilateral application by a trade union for an approved closed shop, what happens as the clause is drafted and as the Schedule is drafted? The court, if it thinks it appropriate, has to refer it to the Commission. The Commission then embarks upon extensive inquiries. Then there is an opportunity given for a ballot. There is no approved

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closed shop unless there is a ballot in favour of it. That lasts for two years before it pan be challenged by a further ballot.
I respectfully submit to the noble Lord—and ask him really to take this into account, so that we can get as much out of this debate as we possibly can—whether there should not be some rapprochement between those two forms. I do not think the Government realise sufficiently the force of the feelings of noble Lords on this side of the Committee on this business of the closed shop. There are things to be said for it and against it. They have been said in the Donovan Commission Report very fully, and we have discussed them and considered them. Whatever else can be said, it promotes stable relationships and enables a well-organised union, which is disciplined and devoted to the public purpose, to spread its influence and control what otherwise might be wild, ill-considered actions by small factions. That is the general case for it. I simply conclude my observations on this Question, That the clause stand part, by making an earnest appeal to the noble Lord. According to his custom of treating us with courtesy and consideration, and really taking into account what we feel on this side of the House, I ask him at least to say that he will look at it again.
BARONESS WHITE: If the noble Lord is not proposing to respond to my noble friend, I can only say that I must advise my noble friends to vote against this clause.
LORD DRUMALBYN: If the noble Baroness was only going to say that—I do not mean to be discourteous to her—I would just like to say to the noble and learned Lord that I fully understand his arguments, but he must appreciate that if we were to leave the impression that the gateway to the approved closed shop was wide open, or even that one just had to push it and it would open, the effect would be to weaken enormously the widespread acceptance of the agency shop, which we believe is the right answer at present.
I would add one further point, and that is that it would be a mistake to leave the impression that an application by one side, which would be the union side in almost every case, would be a
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good thing. All it would really do would be to hold out hopes to unions that they might get through these very narrow gateways, when, indeed, it is extremely unlikely that they would. The mere fact of the employer and the union joining together, and both thinking that this is necessary, will have a great effect as far as the examination is concerned, otherwise one is merely cluttering up the industrial courts with a number o applications, none of which would have a chance of getting through. I always hate to say that f will not look at things again. I shall certainly be looking at it again, and thinking about it, but I do not hold out much hope on this occasion.
BARONESS WHITE: Nothing has made me change the advice I was proposing to give to my noble friends, because although I was not able to listen to the first part of the debate on this clause I have listened very carefully to all the speeches made on this Question. I must say that I think there will be endless trouble arising from this clause. The kind of discussion we have had in this Committee is indicative of that; and when one hears the noble Lord talking about the possibility of exaggerating a work to rule, surely that is very loose phraseology. Either you are working to rule, which is perfectly legitimate, as he said, or you are not. The effect of working to rule varies from one industry to another. There are some industries. as my noble friend Lord Champion reminded us—for example, take the case of a railway signalman—where you are obliged to work to rule for reasons of safety. There are other industries in which if the rule books were completely observed it would, not bring things to a standstill, but slow them down very much. I might remind your Lordships that whet. we had candles in this House that was owing to people working to rule. So it varies very much.
LORD DRUMALBYN: I have tried to avoid committing myself to particular propositions and I think that the noble Baroness is perhaps a little unsafe in making that presumption.
BARONESS WHITE: I think here was an element of working to rule in it. In any case, it varies from one industry to another. It is clear to me that this sort of legislation is going to lead to

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a great deal of trouble. My noble friend Lord Bernstein properly reminded us that we have not yet reached Clause 114 or the other parts of the Bill which are all linked up with the provisions of this clause. This will just exacerbate people. I have not had as much experience in industry as some of my noble friends, but I have had some, and I can only say that this kind of legislation is some-
thing which will exacerbate ill-relations where they exist and it will not help good relations. For these reasons I hope that we shall vote against the clause.
6.2 p.m.
On Question, Whether Clause 31 shall stand part of the Bill?
Their Lordships divided: Contents, 129; Not-Contents, 51.

CONTENTS

Abercorn, D.

Fortescue, E.

Northchurch, Bs.

Ailwyn, L.

Fraser of Lonsdale, L.

Norwich, V.

Airlie, E.

Gisborough, L.

Nugent of Guildford, L.

Allerton, L.

Gladwyn, L.

Oakshott, L.

Alport, L.

Goschen, V. [Teller.]

Orr-Ewing, L.

Amory, V.

Grenfell, L.

Penrhyn, L.

Amulree, L.

Grimston of Westbury, L.

Rankeillour, L.

Ashbourne, L.

Hacking, L.

Rathcavan, L.

Auckland, L.

Hailes, L.

Rea, L.

Balfour, E.

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

Reading, M.

Balfour of Inchrye, L.

Remnant, L.

Barnby, L.

Hankey, L.

Rhyl, L.

Barrington, V.

Hanworth, V.

Rockley, L.

Beauchamp, E.

Harlech, L.

Rothermere, V.

Beaumont of Whitley, L.

Harvey of Prestbury, L.

Rothes, E.

Belstead, L.

Hatherton, L.

Ruthven of Freeland Ly.

Berkeley, Bs.

Hawke, L.

St. Aldwyn, E. [Teller.]

Bridgeman, V.

Hood, V.

St. Helens, L.

Brooke of Cumnor, L.

Howard of Glossop, L.

St. Just, L.

Brooke of Ystradfellte, Bs.

Hurcomb, L.

St. Oswald, L.

Burgh, L.

Hylton-Foster, Bs.

Sandford, L.

Chelmer, L.

Ilford, L.

Savile, L.

Clwyd, L.

Inchyra, L.

Selkirk, E.

Coleraine, L.

Jellicoe, E. (L. Privy Seal.)

Sempill, Ly.

Colgrain, L.

Jessel, L.

Sinclair of Cleeve, L.

Conesford, L.

Kemsley, V.

Somers, L.

Cottesloe, L.

Killearn, L.

Stamp, L.

Courtown, E.

Kilmany, L.

Strang, L.

Coventry, L. Bp.

Lansdowne, M.

Strange, L.

Cowley, E.

Latymer, L.

Strange of Knokin, Bs.

Craigavon. V.

Lothian, M.

Sudeley, L.

Cranbrook, E.

Lucas of Chilworth, L.

Swaythling, L.

Crawshaw, L.

Lyell, L.

Tangley, L.

Daventry, V.

MacAndrew, L.

Tenby, V.

Denham, L.

McFadzean, L.

Teviot, L.

Derwent, L.

Mancroft, L.

Teynham, L.

Drumalbyn, L.

Margadale, L.

Tweedsmuir of Belhelvie, E.

Dudley. E.

Merrivale, L.

Verulam, E.

Eccles, V.

Milverton, L.

Vivian, L.

Elliot of Harwood, Bs.

Monck, V.

Wakefield of Kendal, L.

Emmet of Amberley, Bs.

Monckton of Brenchley, V/

Willingdon, M.

Essex, E.

Mowbray and Stourton, L.

Windlesham, L.

Exeter. M.

Napier and Ettrick, L.

Wolverton, L.

Ferrers, E.

NOT-CONTENTS

Archibald, L.

Champion, L.

Greenwood of Rossendale, L.

Balogh, L.

Collison, L.

Hall, V.

Bernstein, L.

Cooper of Stockton Heath, L.

Henderson, L.

Beswick, L.

Crook, L.

Hilton of Upton, L.

Birk, Bs.

Davies of Leek, L.

Hoy, L.

Blyton, L.

Diamond, L.

Jacques, L.

Bowden, L.

Faringdon, L.

Leatherland, L.

Brockway, L.

Gaitskell, Bs.

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

Burntwood, L.

Gardiner, L.

Burton of Coventry, Bs.

Garnsworthy, L. [Teller.]

Lloyd of Hampstead, L.

McLeavy, L.

St. Davids, V.

Stonham, L.

Maelor, L.

Serota, Bs.

Stow Hill, L.

Moyle, L.

Shackleton, L.

Summerskill, Bs.

Nunburnholme, L.

Shepherd, L.

Taylor of Mansfield, L.

Pargiter, L.

Shinwell, L.

Wells-Pestell, L.

Plummer, Bs.

Slater, L.

White, Bs.

Popplewell, L.

Sorensen, L.

Wynne-Jones, L.

Royle, L.

Resolved in the affirmative, and Clause 31 agreed to accordingly.
Clause 32 [Presumptions relating to collective agreements]:
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD AILWYN): I should advise your Lordships that if Amendment No. 238A is agreed to I cannot call Amendments 238B and 238DD.
6.10 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 238A:
Page 25, line 4, leave out subsection (1) and insert
" () Every collective agreement which is made in writing after the commencement of this Act shall be conclusively presumed not to be intended by the parties to be a legally enforceable contract unless the agreement contains a provision which states that it is the intention of the parties that the agreement should be a legally enforceable contract ".
I was afraid that the " double Ds " might have it. I propose and perhaps this course will be acceptable to the noble Lord, Lord Drumalbyn—to discuss Amendments Nos. 238A and 238B together. They are rather linked, and I think it better that we should discuss them together. We are trying, by Amendment 238A to change the whole emphasis of the presumption of legal enforceability from an automatic presumption that any written agreement shall be regarded as legally enforceable unless expressly excepted, to one in which no agreement shall be so regarded unless the parties to it have expressly said so in the wording of the agreement itself. I am sure it will be quite clear to the Committee that that is to change the whole presumption of the first subsection of this clause. The wording of subsection (2) makes clear that there will be attached to any written agreement a presumption of legal enforceability unless both—I stress the word " both "—parties agree and it is otherwise stated in the
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agreement itself. This clause introduces a novel and undesirable principle into our law. The rule of the common law is that no agreement is legally enforceable unless both parties intend it to be legally enforceable.
This clause provides that if one party does nor want the agreement to be legally enforceable and the other does, and the first party—normally the union, I should think in this case—cannot persuade the other to put a non-enforceable clause into the agreement, the first party, namely the trade union, will be legally bound against its intention, against its will and against its desire in this matter. As I understand, this is totally at variance with the principles of our law. As I understand, this clause would apply to every written agreement from the major national agreements down to works committee decisions. No wonder this has been described by people who have looked at it with a knowledge of collective agreements and all that goes into them as " legalism run mad! " In this extremely difficult field of industrial relations and collective bargaining the Government are not, we are not and the country is not starting from the beginning to work out a system and code to apply to those activities. The Government are seeking to coerce into a new legal framework something which has been going on for at least a century and a half. That is a long time. Systems of negotiation have grown up. The idea that we shall enter into agreements voluntarily and that they shall be honourably kept is established and the cases where they have not been honourably upheld are so few flat there is not the slightest justification for bringing the law to bear in this way upon them.
What has been the accepted practice and basis of industrial negotiations and agreements in this country? It has been throughout the period of a century and a half that I have mentioned almost entirely one of voluntary discussion and agreement

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on the basis (to quote the words of Clause 1) of,
" the principle of free association of workers in independent trade unions, and of employers in employers' associations, so organised as to be representative, responsible and effective bodies for regulating relations between employers and workers."
This principle, mentioned in the Bill itself as a principle of the Bill, is deeply rooted in our past. The principle of voluntary discussion, the principle of agreement, where it is possible to achieve agreement —and they do try hard, as I know, having myself engaged in negotiations to try to reach agreement—this desire, this attempt, is evidenced in the whole of our industrial history. When I use the word " voluntary " in this connection that is not to pretend that power, which has swung like a pendulum from employers to workers and back again from time to time, does not enter in the matter at all, but in the main we have managed to avoid the worst aspect of either Nazi or Communist regimes; namely, that of too great and too much interference by the Government in matters of industrial relations. I am not going to drag these system, these ideologies, in too much. I am not going to suggest that the Government are embarking on something similar. But there are dangers about introducing too much legalism into something which has for so long been of a voluntary character and has worked extraordinarily well in this country.
The discussion I am talking about takes place at many levels in industry and, as the Donovan Report says of it,
"It is in fact a continuous process in which differences concerning the interpretation of an agreement merge imperceptably into differences concerning claims to change its effect."
In the same context the Report said that at workshop or plant level discussion is fragmented and informal. I use the words of the Report because they express succinctly the experience of almost all of us who have been engaged in collective bargaining, whether as trade unionists or as employers. The very fact that much of it is fragmented and informal results in agreements and decisions understood by both sides. They understand the agreements; they know how to interpret them in the light of custom and practice which has grown up over very many years. I quote again from Donovan:
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"No court, asked to ' enforce' a collective agreement, could disentangle the agreement' from the inarticulate practices which are its background."
If no court could disentangle the agreement from the inarticulate practices which are its background, how will it be possible, in many cases, for the labour relations officer or the employer or the trade union official to put certain agreements into written legal language? Even to attempt it would necessitate every employer's representative or trade union representative being at every stage of the negotiations from shop floor level up through every intermediate stage to the top national level. Can you picture this piece of nonsense; trying to get the shop stewards, who are negotiating on behalf of a trade union, to ensure that what they are agreeing to is put into such language that it could be interpreted in the courts? This is absolute nonsense, and I am amazed that it should find its way into a Bill.
Acting on the assumption that this Bill would become an Act, the General Council of the Trades Union Congress has recommended its affiliated unions to include a clause in every agreement they negotiate, specifying that no part of it is legally binding. I would not go as far as that, for there are always circumstances in which the acceptance by both sides of a legally binding agreement may very well be advantageous to both sides, always provided that it can be made clear and understandable, and expressed in terms the interpretation of which would cause no difficulty if by any chance they had to be taken to court. In such a case the parties concerned will be bound to take into consideration the fact that they will have to police the agreement under the terms of Clause 34, which we shall come to I suppose some time this evening—I would hope not, but I rather fear that that might be the case, because I think the House ought to go up at 10 o'clock and not a moment later.
SEVERAL NOBLE LORDS: Hear, hear!
LORD CHAMPION: Another effect of this clause in its existing form is that we shall see fewer written agreements and more oral agreements, which I would not regard as helpful to industrial relations generally. I do not know whether the noble Lord, Lord Drumalbyn, or whoever is to answer this Amendment of

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mine, will use the argument that there is no reason for the Opposition to make a fuss about subsections (1) and (2) because any agreement will be rebuttable in the simplest possible form. Just in case the noble Lord feels like saying that, I must forestall him by saying: if it is going to be so easily rebuttable, why put it in at all? Why include it in the clause? The whole thing is nonsensical. I am bound to say that it seems to me that this clause appears in its present form to please, even if it merely deceives, Tory supporters who might have been led to think that it has some importance in relation to unofficial strikes. It has not. To some of the arguments against this clause as a whole we shall have to return when we discuss the Question, Whether Clause 32 shall stand part of the Bill.
There is nothing I would wish to add about the Amendment to delete subsection (2), which seems to me merely to cover an agreement by the parties that only a part should be regarded as being a legally enforceable contract. If I am right about that, then that subsection will fall if the Government show good sense and accept Amendment No. 238, and add the words that I am now proposing. I beg to move.
6.23 p.m.
LORD BROWN:I am sorry to disagree so profoundly with my noble friend Lord Champion, who is a man of great good common sense, but I am going to cite a little experience first. I was chief executive of a company for 25 years, and in conjunction with the trade union representatives of that company and other members of our staff we made a practice over many years of jointly working out in agreed form a whole series of policies, governing lists of work and the way that the firm operated. It was arduous, but nevertheless everybody agreed that it was necessary, and eventually there emerged a whole series of what we used to refer to, perhaps inappropriately, as standing orders, which were agreed by the representatives of everybody. What was the result of this? Over a period of 25 years there was one strike in one factory, which lasted for five days—and that was due to a misunderstanding of one of the rules, anyhow.
I submit that in the small firms of this country there may be no necessity for written agreements. This clause of the
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Bill might have put a de minimis provision on this matter, which would have been helpful, because in s nail firms people are closer to each other than in large firms, for obvious reasons, and informal agreements are in fact often quite formal, because people completely understand them. But when you get companies of the size which are emerging in this country today, informal agreements are about as inappropriate as informal law would be in society, and there is no possibility of interpreting them consistently if they are informal and not written and agreed. If they are not enforceable at law, then, when a dispute breaks out as to their proper interpretation, they have to be settled in some way. I think we are all fully aware in this Committee of what happens: if the unions or the employees interpret agreements in one particular way, or want to ignore them, they can do so, because the employer really has no remedy: he is threatened with a strike acid, rather than face the possibility of huge losses and stoppage or the plant, he will give way. If, on the other hand, the employer seeks to cheat or to misinterpret or ignore agreements arrived at which are not legally enforceable, then people in the factory can go on strike and force him properly to observe the agreements; so the thing is somewhat lopsided. But let me draw attention to the fact that often the absence of enforceable agreements means the use by employees of strike action. This is extremely unpleasant for them as well as for everybody else; it means days or weeks of lost wages, and loss to the country as a whole.
This series of clauses is meant to protect not only the employment, but employees as well. There are plenty of wily employers in this country—I know some of them—who will consistently try to work their way round informal agreements, and to interpret them in a way in which they were never intended to be interpreted. Many strikes occur simply because of this; whereas, if they were legally enforceable, unions could have warned that they would lake these agreements to law and the strike need never have taken place. No doubt under these circumstances of exposure a good many wily managers of firms would not continue to hold the posts they hold now. I know quite a number of these people. Therefore, these clauses about collective agreements and their enforceability are

79
not so lopsided as the noble Lord, Lord Champion, at any rate, seeks to imply.
The noble Lord Lord Champion has also said that a lawyer will be needed at everybody's elbow. I have been in charge of a firm which now employs about 6,000 people, and we have never on any occasion over a period of 25 years employed a lawyer to draft any agreement. These things are not difficult to draft, and the sooner the managers, personnel officers and shop stewards become acquainted with the task of drafting agreements, the better. I have found that shop stewards rapidly become extremely skilled in the interpretation of the English language and proper phraseology for getting agreements into an enforceable condition. I have no doubt about the necessary intelligence being available at the place of employment, as between management and shop stewards. I think it is an injustice to suggest that every time somebody wants to come to agreement over all these matters it should be inferred that people are not capable of doing so.
This whole question of collective agreements and their enforceability has some bearing on the debate we had on Clause 31, when one noble Lord raised the question of withdrawal of overtime and whether this would be a practice which could be taken to the courts, if it were used to try to force the employer to apply for a closed shop agreement. But in my view, what was missed out in the whole debate on that clause was, that if the firm is properly run, then there is in force a policy regarding overtime, which would properly indicate to somebody joining that company that, if he joined he would be expected, with due notice and as long as he was in good health, to work so many hours per month overtime under given circumstances. That would become part of the conditions of employment. If a series of people decided that they were not going to work overtime in the presence of a policy of that sort they would not be infringing the law; and if a firm were so unwise as to have no policy agreed with the trade unions represented, then the union could withdraw their labour without breaking the law.
The fact is that industry remains to some extent a primitive jungle in that re-
80
spect. We are employing huge numbers of people in these industrial societies. As a society, we have learnt through the years the necessity of having legally enforceable laws for the citizen. It is the basis of security for individuals and of the rights of the British people to have enforceable laws. We have not got them in industry. Because they are not enforceable, employers are not given to wishing to put them right and the unions apparently in many cases do not want them, although there would be much more protection of their individual members in companies. We should overcome a great deal of the strife, heat, insecurity and strikes in industry if we were to advance in that direction. Of course these rules will have to be agreed upon and will have to be enforceable, but if they were enforceable at law outside the firm I do not think many people would go to law. Once it is possible to interpret something at law, common-sense interpretations and agreement are reached inside the company. As long as people are aware that rules are not enforceable at law then wiles or planning on the part of the managers or force on the part of workers will be employed in the company. It is for those reasons that I believe we must establish a sophisticated society inside each industry with its own series of laws which are enforceable in the last analysis. That will cause people inside to act with the same reasoned logic towards each other as we are wont to use in society as citizens.
6.33 p.m.
LORD POPPLEWELL: It has been said that many strikes take place consequent upon the interpretation of an agreement. Before he resumes his seat would the noble Lord kindly give some statistics to support his case that many strikes are taking place because of the interpretation of agreements? That is most important.
LORD BROWN: I cannot give statistics; I do not believe that they exist, because to produce them an analysis of each strike would have to be made to find out the reason behind it. But if anyone doubts that many strikes take place because of quarrels over the interpretation of agreements made inside industry, then I leave it to them. I do not agree with that view, and I am sure that most Members of the Committee

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would agree with me that such strikes do take place.
LORD POPPLEWELL: I am one of those persons who definitely does not agree. I should be extremely interested if the Government could help us on this matter. How many strikes really take place because of interpretations of agreements? I suggest that the number is quite negligible. Strikes take place when agreements have to be altered, which is an entirely different situation. My noble friend speaks with vast experience, particularly with regard to industry: some 25 years with only one minor strike. From what I know of the records of some people in industry, I should like to see an extension of the principles in that particular industry advocated and applied generally. That would be much better than the type of Bill that is now before us.
The question of written agreements creates a presumption that any written collective agreement entered into should be legally binding and enforceable unless there is an expressly written provision to the contrary. That is an entirely new departure in our industrial relations, which I do not think will be welcomed by either side of industry. In addition, it allows employers' associations, on the same basis as a single employer, to make legally binding agreements. That again embraces a written agreement and constitutes a major change.
These particular clauses also demand that the trade unions must, to the best of their ability, see that agreements are enforced. Normally the trade unions do that; but this is something that will be capable of many interpretations. Has the trade union done its best? Has it taken every measure possible at its disposal? What is going to be the legal definition of what it has done? Will it mean that ultimately, if difficulties are encountered and if the trade unions do not withdraw membership of the individual, that that will be included and they must use their best endeavours to secure that type of agreement? It is all embraced in the written undertaking—having to contract in, as it were, and not to contract out. Here it is a question of contracting out and if the union so decide, again the dice is loaded against them because it will be possible for art employer who has not been able to pre-
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vail upon a union to accept -.his idea, or the Minister, to ask this quest: on to be referred to the C.I.R. It could be sent to the Commission on Industrital Relations and difficulties arising from heir decision eventually could reach the lower courts. That is what is embraced in these written agreements. Surely that is not in the best interests of everyone concerned.
If the unions fail in the criterion of using their best endeavours, what will then be their position? I suggest that they could be sued for damages by an employer if they broke this legal and binding agreement. In my view that criterion was drafted by someone who has not taken into account the vital statistics within the industrial world, to see how many strikes have been caused deliberately consequent upon the breaking of an agreement. For a considerable number of years before I altered this House I was occupied with the type of machinery that was established within the industry to interpret agreements that had been entered into. Differences of opinion about agreements are bound to arise within industry, but those differences of opinion are distinct from breaking an agreement. Industry as a whole has established a type of Whitley Council machinery that is capable of enabling both sides to obtain a correct interpretation of what an agreement entails. Surely that is much better than having the threat of the law and all of the legal paraphernalia attached to it. This is not conducive to good relations. One can visualise that a number of individuals, if they feel they are going to be Persecuted in this way, it will really only result in martyrdom. Once the final eflects take place, an adverse decision may be given and a certain sense of martyrdom will arise. There will be the unity of his workmates behind him, and once that type of principle becomes involved in this type of agreement machinery it is disastrous, to say the least. It is much better to allow the normal type of negotiating machinery, which has been built up on a voluntary scale over so many years, to apply. I suggest that the noble Lord ought to have another look at this particular clause.
6.41 p.m.
LORD SHINWELL: The preposition advanced by my noble friend about the desirability of enforcing in legal terms,

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and possibly by legal enactments, agreements entered into between employers on the one hand and trade unions on the other, is intensely interesting, but it is hardly relevant to the Amendment under review. If we were discussing the philosophical aspects of legal enactments related to industry, a matter of wages and labour conditions, I should be inclined, to some extent, to support the proposition advanced by my noble friend. In a previous debate some time ago I mentioned that aspect under the Trade Boards Act many years ago, when those who were described as the "sweated workers " were awarded an increase in their hourly rates of pay. That was made subject to legal enforcement under a Bill which became an Act of Parliament. There is nothing inherently wrong, improper or mischievous in legal enforcement. That is not the issue which is before us in this Amendment. This Amendment is related not only to the remainder of the clause but also to subsequent clauses, in particular the one which refers to unfair industrial practices. We cannot divorce the two items. These are closely related, and must be kept in mind in the course of this debate.
Unless I completely misunderstand the purpose of the clause and, in particular, this subsection, and the following subsection, I can only describe the purpose as an irrelevant absurdity. What we are asked to accept from the Government is that if there is the presumption of an agreement, whether written or oral—and it seems to me that an oral agreement has been overlooked—then it becomes legally enforceable. Let me furnish an illustration. A trade union makes a claim for an increase in rates of pay and enters into negotiations with employers. They have a written agreement and that becomes legally enforceable; there is no presumption—that is if this clause is accepted. In the case of an oral agreement we are placed in considerable difficulty. Any kind of an agreement must be either written or oral. There cannot be an agreement unless there is—
THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE): The noble Lord is wrong. There are three or four types of agreement. An agreement may be wholly in writing; wholly oral; partly in writing and partly oral,
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or may be implied from a course of conduct.
LORD SHINWELL: Part of it can be in writing, part of it can be oral. It must be clear to noble Lords on both sides of the Committee—and I am surprised that the mind of the noble and learned Lord the Lord Chancellor is not clarified on this matter—if a body of people meets another, engages in negotiations, and comes to an agreement of some kind, that is an agreement. A trade union might say that it wants another ten shillings an hour; the employers reply that they cannot give ten shillings, and offer five shillings. The trade union accepts that, and that is an agreement; it is not written, but it is an oral agreement. If I talk to the noble and learned Lord the Lord Chancellor about something, and we both agree, then that is an oral agreement. Unless I am misunderstanding the semantics of this, I understand by " oral agreement " that somebody says to somebody else, " Would you not agree? " The other person responds and says, " I agree ". That is an oral agreement.
If the agreement is a written agreement it can become enforceable under the clause. This is rejected by my noble friends, but I understand it. But surely there must be something in the nature of an agreement other than in writing, and that is an oral agreement. If there is an oral agreement the presumption is that it is enforceable by law. Shall I read it? Perhaps I had better read this. Unless I am misinformed, I cannot understand the relevance of this, but I will read from the subsection.
"(2) Where a collective agreement made in writing after the commencement of this Act contains a provision which (however expressed) states that…the agreement…shall be conclusively presumed to have been intended by the parties to it to be a legally enforceable contract."
What is the definition of a " collective agreement "? That is what we are discussing. I will give the definition:
"In this Act ' collective agreement' means any agreement or arrangement (whether written or oral) …"
If it happens to be an oral one the presumption is that it becomes legally enforceable. Shall I read the whole of it?
THE LORD CHANCELLOR: However much the noble Lord reads it he will

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still not have read subsection (1), which clearly states that for the presumption to apply the agreement must be in writing. An oral agreement, or any agreement other than one in writing, is not an agreement to which the presumption applies, although it may be a collective agreement within the definition of the clause.
LORD SHINWELL: I will read subsection (1), if it will satisfy the noble and learned Lord. I do not want to take up the time of the Committee, but I think this is important. It says:
"Every collective agreement which—

(a) is made in writing after the commencement of this Act, and

(b) does not contain a provision which (however expressed) states that the agreement or part of it is intended not to be legally enforceable, shall be conclusively presumed to be intended by the parties to it to be a legally enforceable contract."

This refers to a collective agreement in writing. But when we come to the definition of "collective agreement ", we find that it says:
" In this Act "—
and subsection (1) is part of this Act; you cannot exclude it-—
"'collective agreement' means any agreement or arrangement (whether written or oral)".
LORD BROWN: May I interrupt, just to save time? I understand this to mean —and I am sure the noble and learned Lord the Lord Chancellor will confirm it—that collective agreements are not enforceable at law, but written collective agreements are enforceable at law. It is as simple as that.
LORD SHINWELL: I wish it could be as simple as that.
LORD BROWN: May I ask the noble and learned Lord if I am right?
THE LORD CHANCELLOR: The answer is that that is right.
LORD SHINWELL: It is quite impossible to understand the meaning of this subsection. I understand the position to be that a written agreement under this subsection, unless otherwise expressed, is enforceable by law. That refers to a collective agreement. But, similarly, an oral agreement can be a collective agreement. Am I right? Does the oral agreement also refer to a collective agreement? If not, what is the purpose of the definition?
VISCOUNT AMORY: Usually the noble Lord is a model of lucidity and capable of understanding the most intricate question. Surely in this case the noble Lord is completely wrong. As I understand it, subsection (1) limits the kind of collective agreement, to which this clause refers, to the written collective agreement.
LORD DAVIES OF LEEK: In this Bill "collective agreement" means any agreement, whether written or oral.
THE LORD CHANCELLOR: If I may intervene, as being perhaps the senior on this Bench, I think we must recognise that the noble Lord, Lord Shinwell, is trying to make a speech. There are interruptions on interruptions, which are really rat her disorderly.
LORD BERNSTEIN: May we ask questions, if we cannot make speeches?
THE LORD CHANCELLOR: The Committee has its Rules of Order, and the noble Lord, Lord Shinwell, is at the moment trying to make a speech. There will be a time for the noble Lord, Lord Bernstein, to make his intervention or contribution after the noble Lord, Lord Shinwell, has finished.
LORD SHINWELL: I understand that the function of the noble and. learned Lord the Lord Chancellor is usually on the Woolsack. When he sits on the Government Front Bench he becomes didactic. He wants 'to provide guidelines for noble Lords. He can try that on those who sit behind him, but lei him not try that on us. With the utmost respect, I do not want any guidance in any way from him. I think I am on a fundamental point—and a good point, too. If there are any further interruptions I do not mind in the least; they will not do me any harm at all.
LORD DRUMALBYN: The noble Lord is very good in saying that he does not mind another interruption. Because of the misunderstanding that has arisen about the nature of collective agreements, and whether they are to be enforceable or not, may I say that if the noble Lord looks at his Order Paper he will see t lat it is proposed to leave out subsections (3) and (4) by an Amendment, and to define " collective agreement " in a definition which will come in after Clause 157, and which he will find in the Order Paper as

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Amendment No. 287B. This will remove any possibility of misunderstanding that any collective agreement is enforceable.
LORD SHINWELL: Do I understand that the noble Lord is referring to a subsequent Amendment to be introduced by him? Are we to understand that we are discussing an Amendment on the Order Paper relating to a particular clause, but that there is a misunderstanding and the noble Lord says that we had better wait until his Amendment comes? Did I understand him to say that just now?
LORD DRUMALBYN: My Amendment will not affect the subsection we are now discussing.
LORD SHINWELL: If it does not affect the subsection, why did the noble Lord have to interrupt? I have a feeling that this is becoming even more nonsensical. Let us assume that an application is made to a body of employers for an increase in the rate of pay, and that the matter is referred to arbitration. Those who are responsible for exercising that judgment decide to take a certain course, but it is rejected by, say, the union side —or it may be rejected by the employers' side. Do we understand that a decision by a board of arbitration becomes legally enforceable? May I have an answer to that question? I will put it again: if the matter is referred to arbitration and a decision is given, or recommended, does it become legally enforceable under this provision? It is very important that we should understand that.
Finally, the real trouble about this Bill—and I have expressed it many times—is that there is so much language in it; so many adjectives capable of misunderstanding; definitions which we discover, on meticulous examination, are not clearly expressed at all. Indeed, it is an example of the kind of nonsense that the Government are trying to put across, with the aid of the noble and learned Lord the Lord Chancellor, who offers legal opinions which only lead to further misunderstandings. It is about time these matters were clearly stated and expressed, so that there will be no further misunderstanding. In any event, I dislike the clause entirely. I think the Amendment is one which should be accepted. I dislike the Bill entirely; and in fact I dislike the Government entirely.
6.58 p.m.
LORD SLATER: I rise to support the Amendment so ably moved by my noble friend Lord Champion. It may be true that my noble friend Lord Brown—an ex-Minister attached to the Board of Trade, and an industrialist—may be a good employer of labour. One gets that impression from his observations and his interjections of my noble friend Lord Shinwell, who also has experience in the political field and arena, and at Ministerial rank.
As I have examined it, the Government's purpose in regard to all agreements is that they are to be legally binding unless otherwise specified. On the other hand, we say from this side of the Committee that agreements should not be legally enforceable unless the parties concerned clearly specify. If it is the case that a trade union official and the employers are not prepared to have their hands tied, what can the results be? If the Government persist in their approach, instead of promoting the written agreement at the level where power lies—which may be at factory or plant level, where agreements have been made and are still being made—I am convinced in my own mind that such agreements could come to a halt. After weeks of negotiation, an employer may say, " We agree that there shall be written into the agreement a provision stating that it shall not be legally enforceable ", which is what the trade union will insist upon. The Government arc seeking to ensure that any employer who really wants an agreement has to be party to a statement which detracts from the commitment to that agreement. In other words, before an employer commences his negotiations he will find that he will be so fastened down by enforceability that he will know there is very little hope of reaching a settlement.
I have always been led to believe that the Government were concerned about unofficial strikes, but how can they expect them to stop when the Government put forward proposals which will mean that we are unlikely to get agreement inside industry? The purpose of the Government seems to be not to get up-to-date agreements, but to get agreements that are totally out of date. They must realise that we are living in a difficult period, in which parties undertake bargaining aft national level, and in which

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there is the strongest opposition by the Trades Union Congress and by executives of trade unions against making contracts legally binding. It appears to me that even employers' associations are becoming less enamoured of the Bill's contents; it is by no means clear that the opposition to legally binding contracts comes only from the trade union side. Factory agreements—and my noble friend Lord Brown has plenty of experience of how negotiations take place—are more widely indulged in than once was the case. The vast majority of trade unions do not permit the coming into force of factory agreements until the unions have ratified those agreements. But for many years national executives have not insisted upon the vetting of factory agreements, and many in my own industry have concluded agreements at local level without any trouble at all.
En conclusion, may I say that if this legislation is enacted we shall probably see more unofficial strikes taking place. I support the appeal made by my noble friends Lord Shinwell, Lord Champion and Lord Popplewell, who have made their contributions to the discussion on this Amendment. I ask the Government to think again, and to agree to the Amendment.
LORD BERNSTEIN: May I ask this simple question? Paragraph (b) of subsection (1) uses the words " however expressed ". Later on, there are the words "written or oral ". We have had a great deal of discussion about agreements being in writing, and what is the benefit of an oral agreement in this matter? Would anybody be worse off if the words " or oral " were deleted?
THE LORD CHANCELLOR: I can only assume that the noble Lord is looking again at the definition subsection. I do not understand the question. What I say is that all we are discussing now is the presumption to which subsection (1) gives rise, and the Amendment to subsection (2) which is really consequent on subsection (1) If the noble Lord will look at subsection (1) and read it quietly to himself, he will see that, for the presumption of enforceability to apply, an agreement must have two characteristics. In the first place it must be a collective agreement; and, in the second place, it must be in writing.
LORD BERNSTEIN: The noble and learned Lord has not answered my question. Why use the words "or oral"?
THE LORD CHANCELLOR: They are not in subsection (1), which is what we are discussing. I hope to explain to the noble Lord why those words are there when we come to the definition subsection.
LORD DAVIES OF LEEK: I probably do not understand English. Subsection (3) then states:
" In this Act ' collective agreement' means any agreement or arrangement (whether written or oral)…".
Heaven knows how that can refer to anything ether than what we have been discussing!
THE LORD CHANCELLOR: Perhaps I can try once more. We are talking about subsection (1) where these words do not apply. The presumption is not contained in subsection (3), and therefore it has nothing whatever to do with what we are talking about now.
LORD SHINWELL: I follow the point of the noble and learned Lord, that we are discussing an Amendment related to a certain subsection, but how can we ignore a definition? After all, we must have regard to the definition and to the meaning of terms. That is why directed attention to the subsection, and the definition refers not only to written but to oral agreements. Can the noble and learned Lord answer that?
THE LORD CHANCELLCR: The answer is a very simple one, because there are collective agreements to which the presumption does not apply.
LORD BROWN: May I suggest a way of reading this in order to make it clear? If one reads first subsection (3), which states:
" In this Act ' collective agreement' means any agreement or arrangement (whether written or oral"
and then goes back to read subsection (1), which states:
"Every collective agreement which—
(a) is made in writing…."
is subject to legal enforcement, one then has the real meaning. It is the juxtaposition of these two subsections which makes the Bill confusing. May I make

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one more point, because the noble Lord, Lord Bernstein, asked a question to which he did not get a very clear answer. The word "oral" is used in reference to collective agreements simply because it is advisable to allow for the existence of collective oral agreements. Certainly, oral collective agreements are sometimes a necessity, particularly in small industries.
LORD SHINWELL: Are we to understand, now that one of the players on the Government Front Bench has been injured, that we may expect my noble friend Lord Brown to be a substitute?
LORD DRUMALBYN: It may be convenient if we now resume in order to take the other business, and noble Lords interested in the present Bill get a short interval during that other business.
House resumed.

WELSH NATIONAL OPERA COMPANY BILL
7.9 p.m.
BARONESS WHITE: My Lords, I beg to move that this Bill be now read a second time. The object of the measure, which is confined to local authorities in Wales—which of course includes Monmouthshire—is to make it possible for such local authorities, if they so desire, to contribute towards the resources of the Welsh National Opera Company. Legislation to this end is required because the powers under Section 132 of the Local Government Act 1948, which enables local authorities to make payments towards the provision of entertainment, restrict their ability in this direction and confine their benevolence to such entertainment as is convenient for residents in the area of the contributing authority.
We have a very good precedent for the Bill which I have the honour to place before your Lordships to-night in that the present Secretary of State for Wales, Mr. Peter Thomas, some years ago introduced a similar measure, which passed into law, to enable the Welsh local authorities to contribute towards the Royal National Eisteddfod of Wales although it might not be held within their own confines; and a little later Mr. Idwal Jones, who was
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at that time the Member of Parliament for Wrexham, introduced another measure allowing the Welsh local authorities to contribute towards the Llangollen International Eisteddfod even though they might themselves be some distance from Llangollen—and, knowing the difficulty of transport in general in Wales, I do not think one could truthfully say that Llangollen was altogether convenient to the inhabitants of all Welsh local authorities. But that does not in the least diminish their enthusiasm for it.
What we are seeking to do to-night—and it will be in agreement with another place, through which this Bill has already passed—is to extend this principle to the Welsh National Opera Company. We feel that it is most desirable that any local authority in the Principality, if it so wishes, should contribute to what has become over the past 25 years one of our most distinctive and distinguished national institutions. I am quite sure that all of your Lordships who have had the pleasure of listening to a performance by the Welsh National Opera Company will agree that they maintain an extremely high standard. They became known in London, of course, first of all, by their performance of Verdi's opera Nabucco, when the choral singing made quite an impact. But in the intervening years since then they have, of course, very much widened their repertoire. At the moment, in the current season, there are eight operas in their repertoire, of which I think the production of Boris Godounov is perhaps the most distinguished. The repertoire for this season includes Falstaff, Aida, The Magic Flute, Die Fledermaus and so on.
As I am sure some of your Lordships here know, although the Company started largely as an amateur company, at tremendous sacrifice of time and leisure on the part of those who took part in the performances and in the rehearsals which were requisite thereto, in more recent years they have made the most gallant efforts to turn themselves into a professional company, or basically a professional company, and to extend both their repertoire and the range of their performances. It is quite plain that in a country with the population of Wales it is not easy to sustain a company performing grand opera if it is confined to the Principality itself, and therefore in the most

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recent period the Company has gone beyond the confines of Wales and are performing also in England. The spring season, which is at present on, involves two weeks' performance in Cardiff, one in Swansea, one in Bristol and two in Llandudno, with rather briefer visits for rather circumscribed performances in Haverfordwest and Aberystwyth, where the facilities, of course, are not suitable for a full-scale grand opera performance. But in the autumn after the opening season of three weeks in Cardiff, the Company are proposing to tour to Southampton, Oxford, Liverpool, Manchester, Birmingham, Leeds and Sunderland; and I am sure your Lordships will agree that if they can take their quite admirable Company to these places, they will add very much to the enjoyment of the citizens in these other towns.
We all know, of course, that opera is one of the most expensive forms of entertainment. One cannot reach really high standards in opera without considerable expense. Nowhere in the world can grand opera be performed cheaply; it simply cannot be done. In all countries of the world, therefore, opera on this scale must have a subsidy of some kind. So it is in no way derogatory of the Welsh National Opera Company to make it plain that, although they play very frequently to capacity houses, nevertheless they still cannot make ends meet just on the takings of the performances, however well supported they are. If your Lordships believe, as I do very strongly, that the Welsh National Opera Company are a popular opera company, in the sense that their performances should be available to all people who enjoy and appreciate opera, then you will also understand that one cannot follow (at least I think it would be very undesirable to try to follow) the situation which we find in, for instance, Glyndebourne, where one is appealing to a relatively small number of people who pay very high prices indeed for their seats—so much so that now, I think, a great many of the seats in Glyndebourne are paid for by companies rather than by individuals. I do not think that that would be at all a suitable way to deal with the position in Wales. We want to keep the opera available, as I have said, to as many people as possible who can enjoy it.
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Now the Government have not been ungenerous, and I want to make this quite clear. We appreciate the contributions from Government sources through the Arts Council. My noble friend Lady Lee of Asheridge will, I hope, support us with a few words in this debate, because when she was Minister she showed very great interest in this matter. We are very appreciative of the fact that when the opera company was in financial difficulties owing to an accumulated deficit, the Arts Council stepped in to meet the situation. But the Welsh Opera Company is still facing very considerable difficulties, although the proposed grant from the Arts Council has been slightly increased—not very much, but slightly —and there will be, we understand, a guarantee, an underwriting, of the expenses of the English tour that I mentioned. Nevertheless, there is a gap between what the opera Company has estimated to he its necessary expenses for the corning year and the—
LORD OGMORE: My Lords, I am sorry to interrupt, but may I ask the noble Baroness this question? She referred to a gap and to underwriting. By whom is that being underwritten?
BARONESS WHITE: For the English tour, I assume that the money comes from the Arts Council but it would be administered by what is ca led DALTA, which I think stands for Dramatic and Lyric Theatre Arts Association, which acts as an agent for the Arts Council in organising tours of this nature. The tour that I have referred to—the seven-week tour which will follow the Cardiff season in the autumn—is being organised in association with DALTA and, as I understand it. it has been suggested. that they would underwrite this tour to the extent of, I think I am right in saying, £60,000. That is a guarantee; it is not a grant. I think we must make this clear: that they will guarantee the costs (or the deficit, rather) on this tour to that extent.
But even with that very welcome guarantee there is still a gap which the Welsh National Opera Company are trying very hard indeed to eliminate. That is the gap between their estimate of what they really need and the offer which is being made by the Arts Council plus the guarantee for this particular tour. They have already done a great

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deal to narrow the gap: by making certain economies, by cutting down new productions that they would have liked to undertake. They have therefore cut down to two the additions to their repertoire. I am sure that your Lordships will appreciate that if you are based in a relatively small community, as in Wales, you have to have a fairly extensive repertoire, otherwise people will not come; for once they have seen one production they naturally want something fresh. So one is placed in this difficult position. The fact that you are playing to a public which is relatively restricted numerically means that you need more productions than if you are in a high populated area. That is one of the things that the Company have felt obliged to do. They have also decided to postpone certain salary adjustments that they had hoped to make and to reduce some of the costs of the orchestra; but that cannot be done to any great extent without impairing the quality of performance.
One further matter worries me. The company has felt impelled under the financial stress to cut down its training scheme. I think this is most regrettable, and I hope that the Welsh local authorities, who know of the matter, will wish to contribute towards the training scheme. One of the greatest benefactions of the Welsh National Opera Company has been the way in which it has reared good young operatic singers in Wales, given them professional training with the company, after which, as we all know, they go on to Sadlers Wells and Covent Garden. Some of the most distinguished singers who perform regularly at Sadlers Wells and Covent Garden have come from the Welsh National Opera Company. I am speaking of both principals and chorus. I think that it would be most regrettable if anything were done to limit the opportunities for our very fine young Welsh singers, men and women, to obtain from the Welsh National Opera Company the kind of experience and training in a professional atmosphere which is invaluable for someone who hopes to sing in grand opera. We cannot truthfully claim that Sir Geraint Evans, although he has sung with them, owed his entire experience to the company; but Gwyneth Jones, Margaret Price, Elizabeth
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Vaughan and Stuart Burrows, to name a few, have really owed their professional start to the Welsh National Opera Company.
I am sure that all of us who have had the pleasure of listening to this excellent company feel that it is something that we in Wales can be proud of. It is something distinctive. I think it would be tragic for Wales—and not only tragic for Wales but detrimental to the cultural standards of the United Kingdom—if anything were done to lower the standards and impair the qualities of the work done by the Company. Therefore, I hope very much that what we are asked to do in this very modest but important Bill will appeal to your Lordships. It is really no more than to enable the local authorities in Wales to contribute if they wish, to the opera company. I hope that this expression of good will in Parliament will draw to the notice of the local authorities their opportunity to do something to support a very fine Welsh national institution. I beg to move.
Moved, That the Bill be now read 2a. —(Baroness White.)
7.25 p.m.
LORD OGMORE: My Lords, I should like to thank the noble Baroness, Lady White, for the very clear exposition that she gave of the reasons for the introduction of this Bill. The Bill is a very short one but that does not mean to say that the noble Baroness could not have made a lengthy speech. I am glad that she did not; she covered the whole subject in a very short space of time. I welcome the Bill. The prestige of the Company is very high. Those who have seen it from its beginnings will realise how remarkable an institution it is. It is largely the creation of one man. It started near Cardiff as a purely amateur company in a small way and, as the noble Baroness said, it has grown into a great national institution which now appears in a number of centres—not only in Wales but also in England. No doubt in time it will go further still. Grand opera is an extremely expensive form of entertainment. This is particularly so in the case of this Company for one of its objects, unlike that of some commercial companies, is to stage new operas which the public have not had an opportunity of hearing at all—for example,

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Italian operas which have not been presented in this country for many years. So the losses are great.
For the year ending March 31, 1970, the Company's accounts showed a deficit of £56,280. It is a fact in opera that even if every seat were sold for every performance there is still a loss. You cannot get enough money out of box office receipts to cover the expenses. Although it is delightful to know that the English will have the opportunity of witnessing this example of Welsh culture, of hearing Welsh people sing Italian opera, it is a fact that most of the £56,000 loss was occasioned by the Company's performances in England. That is my information. I have no doubt that this year, the extended scope of the company, to which the noble Baroness referred, will mean that the losses will be greater; and again they will be largely brought about by their appearances in England.
The results of this great loss would be most unfortunate. In the first place, you cannot send a telegram to first-class opera singers, particularly soloists, saying, " Be in Cardiff next Thursday " or, "Be in Bristol next Wednesday week." They book their engagements two or three years ahead. You cannot get men and women of the calibre of Geraint Evans, Gwyneth Jones and the like at the last moment. If they are not assured of the financial stability of Welsh National Opera they will not book up. The same thing is true of many devoted people in the chorus, among the administrative staff and among those handling the scenery. All of them tend to get worried about their future. It is essential that the opera should be put on to a sound financial basis. I regard it as one of the three great cultural institutions of Wales—not the only ones but the three great cultural institutions—the Royal National Eisteddfod, the International Eisteddfod of Llangollen, and the Welsh National Opera Company. These are three tremendously important institutions in Welsh life. It would be a tragedy if they went.
I wonder whether it is not possible for the Arts Council itself to make a contribution. I appreciate that it would be widening the scope of the Bill far too much to put down an Amendment conferring on English local authorities
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the powers which the Bill seeks to confer on Welsh local authorities. But I wonder whether—having heard of the possibility, or having read of it, perhaps in Hansard, especially as supported by the noble Baroness, Lady Lee of Asheridge—it would be possible for the Arts Council itself to make a grant in view of the great losses sustained by the Company when it appears in England.
I have only one further point to make. One sometimes sees in the Tress (I am glad to say one never hears it in your Lordships' House) letters to the effect: Why should we spend money on opera when we could spend it on whatever the particular object the person who writes wants to spend it on—a vast number of other things—because opera, it is said, appeals to only a minority. Even if this is so, that is no reason not to support it. All developments in art probably at first appeal only to minorities; and even arts which appeal to a small minority in the beginning eventually redound to the enjoyment of the majority. One can take the position of the stage, for example, where developments, say, ten years ago in the theatre were seen by only a very few people, and understood h y only a very few people, but now are seen and enjoyed by many more. They have spilled over on to television and the films, and thus the majority get the benefit of what in the beginning appealed to only a small minority. So I hope, if there is any feeling in that way by some ratepayers, that the local authorities will resist it and will realise that they are sustaining a most important art form which is giving enjoyment to very many people, both in their own local area and n other areas; and it is, as I say, one of the three greatest glories of Welsh culture.
7.33 p.m.
LORD MAELOR: My Lords, my only reason for taking part in this debate is to underline all that has been said by my noble friend Lady White a; to the purpose of this Bill. I do so with a sense of gratitude to your Lordships, as I had the pleasure some three years ago to support in this House a similar Bill which was introduced in the other place by my brother, Idwal Jones, in support of the Llangollen International That Bill passed through all it; stages in your Lordships' House without the slightest opposition, and I am confident

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that that will be the fate of the Bill we are discussing this evening.
Having mentioned the Llangollen International Festival, I cannot resist the temptation to attempt a " commercial " and to remind noble Lords that the Festival will be held in seven weeks' time. Those of you who have never attended that Festival have missed an unforgettable experience. The Musical Director, Mr. Gwynn Williams, told me the other day that on this occasion no fewer than thirty-three nations will be taking part in the Festival. If noble Lords want to forget the drudgeries of the Division Lobbies and the all-night Sittings, well, my advice is: Go to Llangollen!
The Bill which we are now discussing was introduced in the other place by an ardent Welshman, Ifor Davies, the Member of Parliament for Gower and an enthusiastic supporter of the Welsh National Opera Company. He received the full support of the other place. As he explained when presenting his Bill, and as reiterated this evening by my noble friend Lady White, the object of the Bill is to make it possible for local authorities in Wales to contribute out of the rates, if they so desire, towards the expenses of the Welsh National Opera Company. Unless financial assistance is forthcoming, the Company is doomed to extinction, which would be a great tragedy. The Company was formed in 1946, and later registered under the Companies Act 1948 as a non-profit-making, sharing company, limited by guarantee for the—and I quote:
"promotion and presentation of grand opera in Wales and elsewhere and to contribute to the musical educational life of the community."
It started its career, as Lady White reminded us, as an amateur company, but soon developed into a professional status. Its new status demanded an extension in its playing weeks, an extension of the number of towns in which it can play, and an extension in its repertoire. These changes, obviously, needed an increase in financial aid, which has been met only in part.
The Company has served Wales well. Unfortunately, there are only three places in Wales where one can find facilities for
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large-scale opera. These are Cardiff and Swansea in the South and Llandudno in the North. In spite of this, the Company has made great efforts to present smaller-scale operas in other towns in Wales which have only very limited stage accommodation. It is therefore truly educational in its aims and functions. The Company now compares favourably with the leading opera companies in England and elsewhere in Britain, and its prowess is recognised throughout the country. In the last two years it has played at Bristol, Southampton, Bournemouth, Birmingham, Leeds, Sunderland, Liverpool, and also at Salder's Wells. Welsh singers, as my noble friend Lady White reminded us, are now in demand not only in this country but also on the international operatic stage.
Before I resume my seat, I do not wish to indulge in any form of carping criticism, but, as a Welshman, I am always instinctively prompted to make comparisons between the treatment of England and that of Wales by various financial institutions. I would be the very last person to criticise the Arts Council of Great Britain, and that for two reasons. In the first place, my high regard for the noble Lord, Lord Goodman, would in itself prevent me from doing so. In the second place, I believe that the Arts Department, under my noble friend Lady Lee of Asheridge, was the outstanding success of the Labour Administration—I say that without the slightest reservation. I am only hoping that the noble Viscount, Lord Eccles, will follow her good example. Nevertheless, curiosity prompted me to make a comparison between the grants allocated by the Arts Council to the Welsh National Opera Company and, for instance. Covent Garden and Sadler's Wells. I find that in the year 1969–70, Covent Garden had a total grant of £1,400,000; Sadler's Wells had a total of £762,000. That makes a combined total of £2,162,000. The Welsh Arts Council made, by comparison. a meagre grant to the Welsh Opera Company of £178.016. No doubt my words will reach the ears of the noble Lord, Lord Goodman, and the noble Viscount, Lord Eccles. I would only say this to them: treble the grant to the Welsh Company and they will live happy ever after. It gives me great pleasure to support the Bill.
7.40 p.m.
BARONESS LEE OF ASHERIDGE: My Lords, it is quite true that the Welsh Company is still in difficulties, and perhaps the trouble is that people simply cannot understand why opera is so expensive. I hope that Welsh pride will be fully enlisted behind this measure that has been introduced by my noble friend Baroness White. It is no use expecting the central Government to give total finance to any major art. Its very vitality rests on the fact that it has deep local roots. We hear a great deal about Welsh pride. The Welsh people are proud of their distinctive culture. Therefore I hope that all county councils in Wales and in Montgomeryshire will respond to this opportunity that they are being given.
You have to be at close quarters watching a great company work to appreciate the discipline, dedication and sacrifice that is put into running an opera company. I entirely agree with what has already been said: that it is enough that they should do this for us, without being haunted by wondering whether they can afford it: can they afford to train, can they afford the administrative staff? We are not even talking in terms of a Welsh opera house; we are talking in terms of supporting a Welsh Opera Company.
How can we get rid of this false notion that opera is only for a small minority of wealthy people? Of course we have Covent Garden, and it is extremely expensive to get into Covent Garden, even with all the subsidies that arc paid. I would ask my noble friend to remember that when one talks about Covent Garden one is talking about the opera house as well as the opera company. Some of my earliest memories in a mining village in Scotland are of delight when the Carl Rosa Opera Company or the D'Oyly Carte Opera Company visited us. All the operas were familiar in my home. I do not know what songs the young workers of Wales are singing these days when they go home on a Saturday night. I can remember more than 15 years ago sitting at an open window in Tredegar when the lads were coming home after 10 o'clock on a Saturday night. I assure your Lordships that it was not hymns they were singing, and it was not pop songs; they were singing arias from II Travatore, Carmen and so on. As I say, I do not
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know whether they do that now, but they did in days past. The opera was a popular art. I cannot speak:or England, but in the part of Scotland where I grew up and the part of Wales that I knew, there was a great delight in the beauty of the words and the music of the opera.
There must be an insistence that if we are to have an opera company it must be absolutely first class; and, if we maintain the standards I hope it will become more generally recognised that it must be supported over a wide area. You must have a national power house: you must have it for Wales, for London, for Scotland and elsewhere. Welsh pride must insist on parity of esteem; that their company is not second-rate, but is superb in its training and talent, and gets an international as well as a national reputation. I hope that we can do something to make it clear to county councillors throughout Wales and elsewhere that this is a very special responsibility and a great opportunity that they have, and that they will realise that financial support for a great opera company must come locally, as well as centrally.
7.45 p.m.
THE MINISTER OF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (LORD ABERDARE): My Lords, I am happy to tike part in singing with this Welsh guar et and the guest artist in the shape of the noble Baroness, Lady Lee of Asheridge, whose dulcet tones we very much appreciated hearing. We are, I think, singing in close harmony, but due to the fact that there is a pop group called the House of Lords, we shall have to find another title for ourselves. I am pleased to have the opportunity of expressing the full approval of the Government for this short but important Bill. I should like to join with the noble Lord, Lord Ogmore, in admiration of the succinct, concise and eloquent way in which the noble Baroness, Lady White, introduced the Bill, although perhaps the normal virtue of being concise was not so important this evening, when some of our colleagues who have to take a short rest from the Industrial Relations Bill may have been hoping that we could continue the debate a little longer.
Like others of your Lordships who have spoken, I have for many years admired

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the performances of the Welsh National Opera Company, and I have listened to them with great pleasure both in London and in Cardiff. Therefore I fully support the Bill. I should like to take this opportunity of paying tribute to a man whom I knew well, who started the whole thing going—Bill Smith. He was, I think, largely responsible for its success in the early days, against great difficulties, and he deserves some mention to-day. He was a simple man, but a successful businessman, with a vision and a devotion to the cause of opera. It was he who started the Welsh National Opera Company, harnessing the talents of great professional singers to the glorious swelling sound of Welsh amateur choruses. On that basis the opera company took shape. To-day it is well established, and largely professional, and therefore faces, as has been made clear by other speakers, severe financial difficulties. It needs to tour extensively in England, as well as Wales, and it needs financial support.
I was grateful to the noble Baroness for her tribute to what the Government are doing through the Welsh Arts Council; and this of course is a tribute to the last Government, who equally warmly supported the company through the Welsh Arts Council. It is only right that Welsh local authorities should not be deterred from supporting the opera company by the strict requirements of section 132 of the Local Government Act 1948. As has been said, it follows in the tradition of two other significant Acts: the Eisteddfod Act 1959, introduced by the present Secretary of State for Wales, and the Llangollen International Musical Eisteddfod Act, introduced by Lord Maelor's brother in 1967. Both of these gave local authorities undisputed power to contribute to the support of these other two national institutions. This Bill follows that precedent. and I hone that your Lordships will give it an undivided Second Reading.
7.49 p.m.
BARONESS WHITE: My Lords, I am extremely grateful to all who have taken part in this brief debate. I am sorry
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if the noble Lord, Lord Drumalbyn, has had slightly to expedite his dinner. We have no Standing Orders in this House, and we might have started singing and carried on for quite a little while. Between us I am sure we could give a very good account of ourselves. But perhaps that would be establishing a precedent which on other occasions (if. for example, our Scottish friends joined in; might be a little rowdy. As I say, I am grateful to all noble Lords, and not least to the noble Lord, Lord Aberdare, who has expressed the support of the Government for this Bill.
I think I should perhaps have mentioned that at the present time, as I understand, the local authorities, who are entitled to contribute under existing legislation, contribute a sum, in round figures, of about £20,000 a year. This, of course, is excellent as far as it goes, but it quite plainly does not go anything like far enough. Needless to say, we should like the Government to give a little more than they do, and if possible on a triennial basis: I would suggest that the noble Lord might consult with his noble friend about that matter. It was said during the speeches of my noble friends that the position is very difficult for a company of this kind when it does not know beyond a 12-month period what its position is going to be, because it cannot then engage people of international repute and it cannot really make arrangements for its orchestra, either.
I think that, for opera companies particularly, a little more would be especially desirable. But however much the Government are prepared to do—and I hope they will do a little more, because I think the Arts Council are quite well aware that more is needed, and do it on a longer term basis—there is still room for the local authorities in Wales. We hope very much indeed that as a result of this brief debate, as well as what was said in another place, they will now take this opportunity to show the pride we have in Wales in the Welsh National Opera Company.
On Question, Bill read 2a, and committed to a Committee of the Whole House.

INDUSTRIAL RELATIONS BILL
7.52 p.m.
House again in Committee.
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD GRENFELL): The debate continues on Amendment No. 238A. I would remind your Lordships that if this Amendment is agreed to I am unable to call Nos. 2:38B and 238C.
LORD DRUMALBYN: As there are no other takers, I suppose I had better speak now. We find ourselves in rather an unusual situation, and I might possibly be better employed in giving what is known in Scotland as a " wee song" at this moment than in replying to the debate. It might attract into the House more people to listen than my reply would. However, I think probably I can best serve the Committee by starting to reply to the debate, and this will give my noble and learned friend an opportunity of replying further when the audience is more worthy of his remarks.
I should like to start by drawing attention to the things on which I think we are agreed. We are agreed, I think, that collective agreements are not as clear as they might be. This was a point made at considerable length in the Donovan Report. And because they are not as clear as they might be, they are not suitable for legal enforcement. Of course it follows we are agreed that existing collective agreements should not be presumed to be legally enforceable. We are talking about the legal presumption that the agreement is, or is not, intended by the parties to be a legally enforceable contract. I am sure we shall agree that people should keep their bargains, and also, probably that where there are two parties to a bargain, the effect of one or the other not keeping to it should not be too uneven; in other words, it seems hard when one party, as the noble Lord, Lord Brown, explained—namely, the employer—breaks the argeement he is liable to suffer loss through strikes and so on, whereas when the other party breaks or fails to observe the agreement nothing further happens.
I think we shall further agree that the failure to keep agreements in itself breeds misunderstanding, and in turn each misunderstanding breeds further misunderstanding; and this contributes to bad
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industrial relations. Please do not misunderstand me; I am not saying that agreements are widely flouted. I think that, generally speaking, it would be true to say that there is a genuine intention on both sides to keep their bargains, at least so long as there is not a change of circumstances in which one party or the other feels that the bargain ought no longer to be kept. In such circumstances, we feel that the right thing h to review the agreement.
Another matter on which w; agreed, I think, is that there are now, and will be in the future, many agreement;—particularly oral agreements—that are not intended to be legally enforceable, indeed there may be parts of agreements which are not intended to be legally enforceable—whereas others may be regarded as much more binding. Finally, I think one has to recognise that although literally millions of contracts are made every year, only a very small number of them come before the courts each year. I think I am right in saying, that we are generally agreed on these points.
What we are seeking to do here is to emphasise two or three main points. First, it is important that whenever a collective bargain is made the parties should understand exactly what they are agreeing about. This is something that will have its effect right through the trade union, right down to its members, if they know what the agreement is about. It would not be unfair to say that there are some collective agreements that are made under great stress—perhaps during a strike or the threat of a strike—which are really much more in the nature of a truce than an agreement; and in truces perhaps one cannot be quite so certain that there is a meeting of minds on the agreement, that the parties mean the same thing by the agreement. One has only to look at international affairs around the world at the present time to see that this is so.
Then we have also to consider what is to happen if any disagreement arises about the interpretation of the collective agreement. Finally, I believe that there should be the will on both sides to keep the bargain, and the essential thing for industrial relations is to achieve the position where there will be confidence on both sides that that agreement will be kept. This is obviously desirable from

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the point of view of the economy and the good working of industry, and indeed for venturesomeness in industry, because if an employer feels that at any moment an agreement may be broken he is much less likely to look forward and to invest and so on. So I am convinced that there is a great deal to be said for collective agreements to be enforceable in appropriate cases.
The real difference is purely whether they should be presumed to be enforceable unless the opposite is stated, or whether they should be enforceable only if they are stated in terms to be enforceable. The great advantage of the clause we are suggesting is that from the moment when the parties begin to negotiate an agreement they will consider whether the agreement is or is not going to be made enforceable. If we were merely to propose, as the last Bill did, that the agreement may be made enforceable but not unless it is stated in terms to be enforceable, then there will be little incentive on the parties to reach that meeting of minds of which I have spoken. They will tend less to consider the content of the agreements than otherwise.
LORD SLATER: Would the noble Lord clear my mind a little on those things which have become customary between employers and employees? Would they be enforceable by means of a new contract drafted in the form of an agreement against what had been customary for a long period of time?
LORD DRUMALBYN: Perhaps the noble Lord was not in his place at that moment, but I started by saying that, largely because of lack of clarity, present collective agreements would not be presumed to be enforceable. Under the Bill it is only future collective agreements that will be presumed to be enforceable unless the contrary is stated. I think that it is important to recognise this. I do not propose to go into details, because other noble Lords wish to speak and I shall leave it to my noble and learned friend to wind up the discussion after other noble Lords have spoken. I think that the Committee would do well to take note of what the noble Lord, Lord Brown, has said. He has done a great deal of very progressive work in industrial relations and in his own fac-
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tory he has a system which works. He said that perhaps it would be a good idea if we adopted holus bolus, if I may put it that way, his system instead of this Bill.
I think that every factory, every plant and every industry where there are collective agreements has to work out its own salvation in this. Let me make it clear from the start that we do not expect that the parties to agreements will in all cases refrain in the early stages from saying that an agreement is not enforceable, but as time goes on people will become more and more aware of the advantages of enforceable agreements. This was the point of view of the Donovan Commission, who recognised that collective agreements would increasingly come to be enforceable. Other countries, I may say, have come to recognise the advantage of legal enforceability. We do not always have to go to countries like the United States and Sweden. As was pointed out in a letter to The Times not long ago, our ex-Colonies, although they took over the law more or less as it was from us, proceeded to make their collective agreements enforceable.
The noble and learned Lord, Lord Donovan, is not with us at the moment, but he said that our history is quite different. Of course it is, and I feel that in this matter we have deviated from the normal form of civilisation, because it is one of the advantages of civilisation that contracts should be enforceable at law. There was a time when the parties to bargains bound themselves by fearful oaths, and the wrath of the gods was supposed to descend upon the party which broke the bargain. As civilisation progressed, men found better ways, through the law, of ensuring that the innocent party to an agreement did not suffer damage because of the wilful breaking of the agreement by the other party. In principle this is bound to be right, and we believe that time will show that the principle of enforceability will be taken as natural. This is the case for our approach. I have explained it as briefly as I can, leaving the technicalities to my noble and learned friend, when he winds up.
LORD POPPLEWELL: It may be that the noble Lord answered this point before I came into the Chamber, but could he give the Committee any guidance in

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regard to the trouble in industry by the breaking of honourable agreements which have been arrived at between the two sides?
LORD DRUMALBYN: Misunderstandings as to the interpretation of agreements are so common that they give rise to a great deal of trouble. The noble Lord is quite right, but this difficulty cannot be quantified. The Department of Employment cannot break down the figures—at any rate, not without the greatest trouble—to show the immediate causes of the breakdowns in industrial relations. But I think we all know that there are many cases where the interpretations placed on agreements turn out not to be the same on both sides. Before the noble Lord came in, I pointed out that the Donovan Commission included in their Report the opinion that it was largely because of the lack of clarity of collective agreements that we have these breakdowns and it was for that reason they did not suggest that existing agreements should be presumed to be enforceable. It would not work because the agreements were not clear enough for them to be legally enforceable.
8.9 p.m.
LORD LLOYD OF HAMPSTEAD: As a lawyer, I feel a great deal of sympathy with both my noble friend Lord Brown and the noble Lord, Lord Drumalbyn. The making of an agreement legally enforceable represents an advance, in the sense that, as it has advanced, civilisation has recognised that it is desirable that agreements should be enforced. What I find singular about this provision—and although I have not been present during the whole of the discussions, so far as I am aware no specific reference has been made to it—is that it lays down that it shall be conclusively presumed that the intention is that the agreement shall be legally enforceable, unless there is some express provision. This is indeed a very singular situation and cuts completely across the normal principles of contract, which are that an agreement is not binding unless it is intended to be legally enforceable, and this may be shown either by an expressed clause or by implication. The whole course of legal development in regard to collective bargains has been that it has been recognised by lawyers in this country that the character of collective agreements as they have
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developed up till now has not lent itself to the presumption that they should be legally enforceable. This was the basis of the Ford Motor case in 1969 when the court said, after examining the whole content, nature and structure of that agreement, that it was not sensible to reach the conclusion that it wt s intended to be legally enforceable. Indeed the learned judge, Mr. Justice Geo Trey Lane, I think it was, referred to the agreement as composed largely of optimistic aspirations rather than a series of clearly defined legal obligations.
What it seems to me one his to bear in mind here is that in many cases you will have agreements of this character, somewhat vaguely drafted agreements which the parties recognise as adequate for their needs but which have not been drawn up with any degree of precision, yet in all such cases under the clause the court will be forced to the conclusion that it is conclusively presurred to be legally binding This seems to be something not only of an anomaly but even an absurdity. I should have thought that the clause would have made a great deal more sense if it had provided that, " it shall be presumed to be legally binding "; in other words prima facie presumed, but it will still be open to the court, by looking at the whole agreement, to say that it does not make sense to say that the parties intended to make this legally birding, and that therefore they apply the ordinary contractual principle. I cannot see the justification in this transaction as against every other type of agreement that one should have 'this rather extraordinary conclusive presumption.
We are going to refer later on to Clause 39, so I do not propose to take up the time of the Committee by referring to it in detail now, but one sees the extent to which this anomaly is carried when one sees that in that clause the position Is arrived at where you have an arrangement which is not regarded by t le Industrial Court as being satisfactory, yet the Industrial Court can lay down certain provisions which are to take erect as a legally enforceable contract between the parties. So the anomaly is made doubly absurd by an arrangement being held to be a contract; that is to say, something agreed between the parties which the parties have never agreed to or contemplated at all.

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I mention this in this context because it shows how far this rather curious concept has been carried. Therefore, I respectfully submit to those in the Government who have been considering, no doubt with considerable care, the drafting of this matter, that consideration should be given, even at this stage, to whether their purpose might not be just as adequately achieved by referring to a presumption, but not a conclusive presumption, rather than insisting upon this extraordinary result that the court may be compelled to treat the arrangement as a legally binding contract when the whole context, character, nature and terms of the transaction point irresistibly—as it did in the Ford case and will no doubt do in many subsequent cases having regard to the nature of these agreements and the way they are composed—to the fact that whether you view it as Mr. Justice Geoffrey Lane put it in the Ford motor case subjectively or objectively that the intention of the parties was that it should not be a binding agreement.
8.17 p.m.
LORD COOPER OF STOCKTON HEATH: May I follow the last noble Lord in putting the same point of view, that collective bargaining, which is the instrument of negotiation, is not going to be helped by the suggestion that we should formalise agreements in a legal framework. Many problems will arise from this. One of the first is that for any satisfactory negotiated settlement there is the question of time. You do not want negotiations to drag on too long, and if agreements are to be legally binding I would suggest that this is going entirely to alter the present method of negotiation.
At the moment, where good industrial relationships exist men keep their bargain and there is no requirement to make this legally binding. There are large areas in industry, in engineering for example, where there is hardly any formal machinery at all. The parties meet from time to time to negotiate a basic wage though, as Donovan pointed out, the basic wage in this industry does not mean a thing and it is possible for a worker to receive three times the basic wage due to
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bonuses, piece work and so on. So the effective negotiation—and I cannot see any other possibility in an industry like engineering—is at shop floor level. Where people work on machines, where the job changes from week to week, where new prices have to be arranged and so on, how are you going to make a legal contract?
We have the American example before us where there is a two-year contract; where everything is expressed in legalised form. They have built up an army of legal people who deal with industrial law and nothing else, and therefore the contract has to be expressed in terms which can be interpreted legally. This is completely strange and foreign to our present practice. I stress this to bring out the point that this is another aspect of the Bill which is bringing great changes upon the trade union movement, and the question arises as to whether or not this is going to be helpful. Personally, I do not think it will help. I believe that in industries where we have good relationships—and this applies to the great mass of British industry—there is no problem even if we had to make legal agreements. For example, if we make an agreement with Imperial Chemical Industries there is no need to enforce it by a legal agreement; everybody keeps their bargain.
So of course the problem is where the relationships are poor. The question then arises, are you, because of the relatively small element of difficulty in industrial relations generally, to impose on the great mass of industrial relationships this kind of requirement that in my opinion will revolutionise the approach? In my own union we have to consider whether we need an elaborate legal department in order to be able to meet the possible requirements of an Act that is pending. Frankly, I think this is, taking a sledgehammer to crack a nut. It is not required for the great mass of labour relationships in this country, and it will impose upon us the very thing that is such a problem with British industry. The one thing in negotiation is to get, if you can, a reasonably early settlement; but if every word, every comma and every dot over every i is to be considered to see if it stands up to legal interpretation, this is really imposing upon the layman a very considerable responsibility. I hope this

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will be taken into account by the Government in their consideration of this part of the Bill.
LORD TANGLEY: This Amendment is really a question of procedure. The proposal in the Bill is that an agreement is to be identified as legally enforceable or not by what I might call negative procedure. The proposal in this Amendment is that an affirmative procedure should be substituted. I shall find it very difficult to make up my mind which is the better procedure until I have a much clearer idea of what the effect, or the supposed effect, of making a collective agreement legally enforceable really is. It seems to me to be extremely obscure under this clause, and the purpose of my intervention is to put some of my problems to the Government in the hope that, either now or before the Report stage, they will give them the attention which I am bold enough to think they deserve.
The clause says that every collective agreement which is identified as such, whichever procedure is adopted, shall be enforceable. Now what does this mean? This is my first question. I know that under Clause 34 it means that a breach of a collective agreement will be an unfair industrial practice, but I imagine also that the courts would say that Parliament did not use these solemn words " legally enforceable " unless they meant something by them. That is the sort of way in which judges talk to counsel, and legitimately so. I therefore suggest that it is intended that, in addition to having the effect under Clause 34 of making a breach an unfair industrial practice, it is intended that in the event of a breach of the contract there should be some claim against some party in respect of some thing. Indeed, my thought on that is confirmed by looking at Clause 125, which says:
"No court other than the Industrial Court shall entertain any proceedings brought by a party to a collective agreement against another party to it, if the purpose or principle purpose of the proceedings is—

(a) to obtain a decision of the court on the construction or effect of the collective agreement, or

(b) to enforce the collective agreement or claim damages for a breach of it."

So that clearly states there will be some party responsible for damages in the event of a breach, and if there is such
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a claim the Industrial Court is.he proper tribunal to deal with it.
That sounds fairly logical s far, but does the clause really do this? Supposing you have an agreement made by a trade union, or perhaps by a shop steward on behalf of a trade union, of course that agreement is made in the interests of the workpeople in the place and, whichever procedure we adopt, it is identified as intended to be a legally enforceable agreement. If there is a breach of it, who is going to be the defendant in These proceedings? If it is the trade union they will say " The union is not in breach of it: it is the workpeople on the shop floor who are in breach of it. The union is not liable." If you were to go to the man on the floor, he will say, " I did not make this agreement: it was lot made on my behalf. It was a union agreement. I have no doubt it was a good one, and I am sorry I have broken it, but it was nothing to do with me." I think those problems will arise in the case of an attempt to enforce such an agreement, and even if you look at the question of unfair industrial practice in Clause 34 which is specifically designed to deal with this,

"(a) where the agreement is a legally enforceable contract to break the agreement, or

(b) where part (but not the whole) of the agreement is a legally enforceable contract…"

then the party is liable to be held in the position of undertaking an unfair practice. Who is the party under Clause 34—is it the trade union? A little later on it is suggested that it is really intended to be the trade union because it rather suggests that it will be a defence to say that he has done all he can to see that the agreement was carried out. If, on the other hand, the party is intended to be a workman on the floor, I do not know what the position is. Therefore I have great difficulty in deciding which procedure in this Amendment should be adopted, because I do not know what the procedure is leading to. I suggest that at present the clause is quite nonsensical, has no meaning, and would be utterly unenforceable.
LORD WILBERFORCE: I urn very happy to follow my noble friend from these Benches, because many of his thoughts correspond with mine..Before I

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go back to his argument, I would take up some points raised earlier by the noble Lord, Lord Cooper of Stockton Heath, regarding this clause as a whole. We are at the moment debating whether the clause should be a contracting-out clause or a contracting-in clause, and I must say that I cannot work up much enthusiasm about that question. I know it provokes great passions on one side or the other as to which should be adopted, but in the end it is going to come to very much the same thing as this Bill is drafted—and that, as the noble and learned Lord, Lord Donovan, has pointed out, is going to be in practice that most collective agreements will be declared as not legally enforceable. I believe that that will be the practical result. I am sorry that I cannot follow the noble Lord, Lord Drumalbyn, on that point.
However, I wanted to take up an earlier point, and one which really cuts at the root of the whole conception of this Bill. One hoped very much that this portion of the Bill—the portion that was to deal with the collective bargain was really going to be part of the contribution which the Bill would make to a new law of labour relations. One knows that great hopes are pinned on it by the Government and by the public. It is thought on one side that the cure for all our evils is to make the collective agreement legally enforceable; and on the other side the trade unions believe that it is a terrible thing and that it is going to land all sorts of practices and unions and employers in the courts, with a lawyer at everybody's elbow.
I believe that both of those approaches are wrong and that the approach of this Bill, which polarises and separates agreements into those legally enforceable and those not legally enforceable, is really a false separation because, as has been pointed out by a number of noble Lords on both sides of the Committee, collective agreements are not as simple as that. They are not agreements which you can just take into a court and say, " Let us sue on it ". One knows, of course, that the Ford agreement came before the courts and a judge had to decide in the context of a procedure agreement whether that particular agreement was to be treated as legally enforceable or not. It was insoluble. He decided that that
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particular agreement was not intended to be legally enforceable. He did so against the background of what he thought to be sound, orthodox theory. Some agree with the decision, some do not, but that was the dilemma he was in. Either it is legally enforceable or it is not legally enforceable and the thinking among many noble Lords on this side of the House and in trade unions on this sort of clause is that collective agreements which are of a diverse and often sophisticated kind are not really suitable to be brought into the ordinary legal process. I believe they are fundamentally right about that, and one was hoping for some recognition of that fact in this Bill, and some more sensitive and more sophisticated procedure which would bring collective agreements under the law but not, if I may say so, under lawyer's law—not under the law of contract, the law of judges and so on.
What one wants in this Bill is a law of industrial relations, which is quite a different thing, and I hoped that it would be brought about by this Bill. One has, after all, set up a flexible and ingenious machinery with the Industrial Court, the Commission on Industrial Relations, industrial tribunals, arbitration procedure—all that is there and one hoped that it was going to be used in order to deal with the law of collective agreements and industrial relations in the way which is suitable to those agreements. What would be much better—and it may not be too late to bring it in would be to have a flexible and sensitive procedure, either under the Industrial Court or the Commission on Industrial Relations, or both, which would enable complicated, informal, elaborate or long-term collective agreements to be dealt with in the most appropriate way.
As has been pointed out by the noble Lord, Lord Brown, a number of collective agreements are very informal agreements made in small undertakings, possibly against a large background of custom in which everybody knows what they mean but it is not all set down. Others are going to be—and probably are at this time—long-term agreements, American-style; three-year agreements which are meant to cover, say, the whole of the procedure and the demarcation questions and the pay structure of a huge industry for three years. In that sort of

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thing one needs quite a different approach. One wants a machinery which will provide means of saying that certain parts of the agreement are capable of enforcement; others are not at this stage because technologies change; others are suitable for reference to arbitration; others ought to be referred for negotiation between the two sides. What you do not want is a cast iron division between either totally legally enforceable or totally non-legally enforceable. This is true of the inarticulate practices to which another noble Lord referred. There are many of these behind a great number of collective agreements. People enter into something across the negotiation table, but there is a lot of inarticulate premise behind it and it is quite useless to bring into that sort of negotiation the kind of considerations arid the kind of arguments which you have in courts of justice, that you can sue on it or you cannot.
Therefore, with great respect, I think the Government are not taking the best course when they say that an agreement is to be legally enforceable—just like that—because they will find that when you come face to face with a collective agreement—assuming that any article will indeed be enforceable at all—there would be large parts of any collective agreement which do not fit into the ordinary legal machinery, and you will not get anywhere unless you have a much wider power, either to say that there is a clause which can be enforced or that there are other parts which must be referred for negotiation.
If there is to be any change in these clauses I hope that it will be in that direction. But assuming that we are to be fixed into this cast-iron mould of legally enforceable or non-legally enforceable agreements, then I am entirely with my noble and learned friend Lord Tangley in the observations he has made about the clauses as they stand. It is indeed far from clear what the effect of legal enforceability under this machinery is to be. He has given the clauses which are mainly relevant on this; Clause 34, the unfair industrial practices; Clause 125, which says that no court other than the Industrial Court shall entertain proceedings, and Clause 129 which says that the Industrial Court shall not have any jurisdiction other than that expressly conferred upon it.
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I should like to bring out two questions which I think are probably inherent in what the noble Lord said. First, can the Industrial Court, which is the only court, admittedly, which can deal with the questions of collective agreements, deal with a claim that there has beer a breach of contract of a collective agreement? As the noble Lord said, by saying that it is legally enforceable you presumably intend that it should be sued on, and it is difficult to see whether all that can be claimed is that a breach of a collective agreement is an unfair industrial practice, or whether you can claim in the ordinary way that a breach is a breach of contract. It may be important because unfair industrial practice attracts a claim for compensation and it may to that the damages are very much the same. If one accepts the implication of Clause 125—damages for a breach can he brought before the Industrial Court—that it is put in the negative and it says, " No court other than the Industrial Court ", it is left to implication that it is the Industrial Court that can entertain such matters.
The other point is rather more important. Can the Industrial Court, under any of these clauses, decide on the interpretation of collective agreements if those collective agreements are not made legally enforceable? That is very important because, surely, one of the most useful functions of the Industrial Court is to help the parties to collective agreements to ascertain what thy mean. Again, admittedly Clause 125 says that no court other than the Industrial Court can entertain any proceedings to obtain a decision on the construction or effect of the collective agreement. What I am not at all clear about is whether that applies only to a case where the collective agreement is enforceable, or whether it applies to other cases. I should think that if the Industrial Court is to do anything useful at all, it ought to have power to decide on the interpretation and construction of collective agreements, whether or not they are legally enforceable in a legal sense. It may be useful to tell the parties what the collective agreement means, and that can be just as useful whether the agreement is (in whatever sense you choose to make it so) legally enforceable or not.
The other questions about the parties and the collective agreements have

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already been sufficiently brought out by my noble and learned friend Lord Tangley, and I do not propose to repeat them, except to say that I entirely agree with him in thinking that the Bill, whether as drafted or as prospectively amended by means of the various Government Amendments, is far from clear on this point. I apologise for detaining the Committee from these Benches on this rather political clause, but it is an important clause from the legal point of view. The courts, in one form or another, will be much concerned with it, and perhaps those on these Benches are entitled to draw the attention of noble Lords to what seem to be certain difficulties in the application of those clauses, whichever way they come out.
8.41 p.m.
LORD POPPLEWELL: The House is indebted to the noble Lords, Lord Wilberforce and Lord Tangley, for their observations on this clause. There is no need for Lord Wilberforce to apologise for addressing the Committee at such length; it will benefit greatly from his observations. The change in law which is coming about is extremely radical. Had I the eloquence of the two noble Lords who have preceded me, I should be able to express my point of view more clearly.
At the time we were debating Clause 1, I referred to this change of law as bringing industrial relations within a legal framework, at the same time comparing it with civil and common law. The two things are entirely different, as the noble and learned Lord, Lord Wilberforce, has emphasised. I have asked a number of times for some indication from the Government as to why they are proposing this change in the law. Whatever evidence has been brought forward from both sides of industry regarding the number of disputes which have taken place consequent to interpretation of agreement, when all is said and done the fundamental principle is the interpretation of agreement. The noble Lord, Lord Drumalbyn, in his reply to me a little while ago, said that it would be impossible without an undue amount of expense and difficulty, to quantify the difficulties that have arisen. One would have thought that if there was to be this fundamental change, there should have been research
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to see whether it was justified. Has there been any request from industry at all for a change of law of this description, either from the employers association or from the Trades Union Congress; or has anyone made representations to bring about these changes? I strongly suspect that the answer is, No. This is born from an ideological approach. In that connection, great difficulties will be encountered.
My noble friend Lord Cooper of Stockton Heath, the General Secretary of one of our major unions, has indicated just what it will mean so far as the members of his union are concerned. They will seriously have to consider whether or not to establish a huge legal department to ensure that every agreement they enter into is legally binding. Even when that is done, and every effort from both sides has been tried, then the Industrial Court—as has been rightly pointed out by Lord Wilberforce—will be called upon to interpret. As I understand it, the Industrial Court will have power to redraft an agreement submitted to it. That is ironic, to say the least; and it is unnecessary. As has been pointed out by my noble friend Lord Cooper, in the past he has been able, as General Secretary of his organisation, in discussing the matter with employers' representatives is to reach an agreement with them and to shake hands over it. Now before they can do that their legal people will have to be brought in. Once the legal people from either side are brought in. Heaven help us all, as we know, in our hopes of an early settlement!
This matter will drag on under great difficulties. Let us assume that a strike has taken place. Ultimately there is an agreement between both sides, in accordance with normal industrial practice. Then the legal people will have to come in. They will have to work very quickly unless the dispute is to drag on for a few more days after the actual settlement. This is something that is not required by either side of industry. It is too optimistic to express the hope that the Government will have another look at it.
The noble Lord. Lord Wilberforce, has rightly referred, when discussing this clause, to many other clauses which are implicated. The drafting of this Bill is one of our difficulties. When dealing with any clause we find that it involves

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a number of others. That makes a speech on one clause almost like a Second Reading speech. If this is the Bill which will ultimately become an Act, what will be the position so far as this new established law is concerned on industrial relations? To commence with, there is no case law. It will be necessary to investigate through tribunals in the various stages, through the industrial courts, and then, ultimately, the Industrial Relations Commission, and possibly up to the High Court of Justice. As we have indicated on a number of occasions, this Bill seems to be an absolute lawyers' Paradise. Having regard to anything that has taken place industrially, it is not justifiable. It indicates just how silly the Government are in seeking to put the Bill on the Statute Book.
LORD PLATT: I am no expert on the subject under discussion. I would not dare to intervene were it not that I wish to draw to the notice of the Committee the fact that we have had from the Cross Benches two of the most notable speeches which I have heard during the whole of this debate. All I will say is that if the Government allow this Amendment to go to a Division and draw in, summoned by bells, one hundred people who have not heard the speeches of Lord Tangley and Lord Wilberforce, my respect for Parliamentary procedures, and my affection for this House, which is very deep indeed, will have suffered.
8.48 p.m.
LORD HANKEY: Without wasting the time of the Committee, may I add something to what has been said from the Cross Benches? I should like to say, having listened to the noble Lord, Lord Cooper of Stockton Heath, and to what Lord Wilberforce said, that it is most important that whatever procedure we arrive at under these clauses should be extremely flexible. There ought to be a good deal in the code of industrial practice to give guidance to people on how they are to handle these affairs. One of the main causes of bad industrial relations is that there has been delay in reaching settlements. I understand it is the intention of the Government that the arrangements set up under this Bill (when it becomes an Act) shall act in a rather quick and almost summary way. If they do not do that, they will per-
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haps aggravate industrial relations rather than otherwise. On the other hand, as I understand it, we must not judge what is being arranged under the Bill in the light of the provisions and procedure of our present system of law.
I do rot want to be rude to tile lawyers. Far be it from me to be that! But I must say that I think that our law is expensive and extremely slow. If that were the case with the administration of this legislation I think it would be self-defeating. I believe that a little inquiry across the world would show that that is not the way in which labour courts work generally. My experience in a number of countries has been that they work pretty quickly. There is a judge, usually with assessors from both sides of industry. They decide quickly as a rule, and: hat is the whole object of the affair. If that is what would happen under this Bill I do not think that we have to fear half the things that have been mentioned this evening.
Secondly, I would like to ask: when you make a collective agreement, do you mean it to be kept? If not v. hat is the good of making an agreement? It reminds me of what that great scientist Galileo said about mediaeval theology: " It is like trying to milk a billy goat into a sieve ". Of course the billy goat has no milk but even if it had, the milk " of collective bargaining would not stick in the sieve, because it has no meaning. I think that I agree with what Mrs. Castle said. The important thing nowadays is to reinforce and strengthen the processes of collective bargaining, and I believe that you cannot do that unless you make it enforceable. Under this Bill, with the aid of a code of industrial practice, it should be possible to arrive at decisions fairly quickly, and to make them very clear.
Finally. I agree entirely with what was said by the Donovan Commission about collective agreements: that they are so vaguely drafted at present that you could not conceivably have them settled in this way. One of the reasons they are vaguely drafted is that there is no question of making them enforceable. If trey were to he made enforceable, you would get back to a system whereby there would be a great number of standard clauses. I do not think that a great man} lawyers would be cracking their brains about how the clauses were drafted. It would be

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like an insurance policy: we do not crack our brains about the small print every time; it is absolutely standard. Of course, we are careful to read it, but we do not crack our brains about it. Incidentally, we almost never go to law about it, Heaven forbid that we should! So I think that this Bill has the matter the right way round. An agreement should be presumed to be enforceable; and the code of industrial practice should make it clear that there should be a summary procedure and that it should be extremely flexible, as was suggested by the noble Lord, Lord Cooper of Stockton Heath.
8.54 p.m.
THE LORD CHANCELLOR: My noble friend Lord Drumalbyn has already replied to that part of the debate which took place before the House was resumed for the purpose of dealing with the Welsh National Opera Bill. Therefore I shall deal only with that part which follows. I think that the most constructive contribution that I can make to the discussion is to remind the Committee of exactly where the point of difference arises, as I see it, between the Amendment and the policy of the Government. I think it was the noble Lord, Lord Champion, who said in his opening speech that he recognised there were some cases where legally enforceable agreements might serve a useful purpose. We think so, too. That is a point of identity. As my noble friend Lord Drumalbyn pointed out, we are seeking by this clause to translate into terms of English legal practice what is already the law in Sweden and Germany, where the time lost in industrial disputes is much less than here, as well as in the United States and in the greater part of the new Commonwealth. In that respect I can hardly be expected to take seriously either the proposition that what we are seeking to do is subversive of democratic liberty or technically impossible
I would have taken more seriously, but for reasons which I shall give, and which my noble friend Lord Drumalbyn has already given, the proposition that what we are likely to do is not likely to produce much effect. Because, of course, it is a perfectly legitimate point to argue, as the noble Lord, Lord Champion, sought to do in his closing speech, that it is theoretically possible for every agreement to contain a disclaimer; and if
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every agreement contained a disclaimer as the Council of the Trades Union Congress at present suggest, the clause would not have very much positive effect. I will come to that argument in due course. I think that the Committee must make up its mind. It can say that this clause is subversive of democratic liberty, or that it is unnecessary, but I doubt whether it can do both—except by a feat of mental gymnastics which I should not myself desire to perform.
Let us next see whether we can find another point of resemblance before we come to our point of difference. Clearly, we both agree that some agreements ought to be enforceable and that some ought not to be. The present law is that they are not enforceable unless they are effectively construed in that way by the courts, because it has been generally, though not necessarily universally thought by lawyers that agreements of this type are usually not enforceable, and therefore the courts will lean against enforceability. We, on the contrary, think —although we agree with the general proposition that some agreements ought to be enforceable and some ought not—that the presumption ought to be the other way. We think this not for fundamentally ideological reasons, because ideologically it can make no difference. In theory, what is open to the parties to agree one way or the other in both cases cannot be the subject of ideological differences. We think it primarily for practical reasons, because we want a greater number of agreements to become enforceable over the years; not because we expect to see a Copernican change in the outlook either of employer or employee with regard to the enforceability of collective agreements.
So we start with the proposition that most existing agreements are not enforceable. This is a prospective piece of legislation; it deals with future agreements. Secondly, we start with the proposition that oral agreements are not enforceable because it may be rather difficult to ascertain what the oral agreements were; and a great number of agreements, as the noble Lord, Lord Champion properly pointed out, are based on custom and tradition and can be interpreted only in the light of both custom and tradition going back a long way and not lending themselves very easily to enforceability. There again

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there is a point of resemblance between the two Parties. The question is, which way are we to tilt the balance? Are we to tilt the balance in favour of enforceability or in favour of non-enforceability?
I must say that I found myself wholly unattracted, if the noble Lord will forgive me for saying this, by the suggestion of Lord Lloyd of Hampstead that it should be left to the lawyers to argue it out one way or another. The merit of Lord Champion's Amendment is that it makes a presumption one way, and the merit of the existing words in the Bill is that it makes a conclusive presumption the other way. We do not want a paradise for lawyers, although I think lawyers are entitled to a paradise in some other and better world. We have made it clear, and Lord Champion has made it clear, that one of the two could be chosen, but I would not be attracted by any third possibility making it open to doubt.
I therefore apply myself to the problem, which way do we want the balance to tilt? The argument for tilting the balance in the way we have tilted it is that we want the parties to any negotiation in future—as I have said, this is purely a matter of a speculative nature—to ask themselves whether there are advantages in legal enforceability or not. We want them to ask themselves the question and they can answer it either way. We have not laid down in which way they should answer it, but we want them to ask it. We believe that, as time goes on, more and more, in one case after another, it will be found that it is to the advantage of the parties, first to reduce an agreement to writing in terms sufficiently clear to be capable of enforcement, and secondly, to allow the presumption to apply so that the agreement shall in fact be enforceable. This was really the point that the noble Lord, Lord Brown, was making. I respectfully accept it without shame, because it was put from a lifetime of experience in that field of endeavour.
Suppose you ask yourself and I respectfully put this question both to the Opposition Front Bench and to the noble Lord, Lord Popplewell—are there sufficient reasons for supposing that sooner or later unions will see the advantage of enforceable agreements? I start with the proposition that most collective agreements provide some advantage to the
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employees. The reason for this is not far to seek if one thinks it out. The employer makes his agreement of employment with his employees. This is the principle of individual bargaining. The unions base themselves on collective bargaining. Very few agreements are in fact made either to prevent a strike or in settlement of a strike which do not provide some solid advantage to the employees.
The first proposition which I put at this stage of my argument, and which I am putting at flatly as I can, is that the union will ask itself the question, " Do we gain an advantage from enforceability?" And. after the passions have died down and the matter has been settled, will they say, " Yes we do, because this agreement provides advantages "? When they reflect, as they will do later on, that the only sanction on the other side of the balance is that they must use their best endeavours to see that the agreement is kept, they will say—I hope they will: " This is what we have done already." In a sense the unions are getting something for nothing. They are getting a legally enforceable bargain against the employers or the association of employers which they can take to the Industrial Court if they wish. The only liability they are under is that if they do not use their best endeavours to keep the bargain they may be in for trouble themselves. That is something which we do not think is an unfair burden to apply to them. The parties to the agreement are quite clear. They are laid down by a clause (I cannot at the moment remember which clause) and in the ordinary course they will be art organisation of workers and the employer, or the association of employers, with whom the agreement is made. It is not the man on the shop floor. The man on the shop floor does not incur liabilities for breach of agreement.
The noble and learned Lord, Lord Wilberforce, went on to ask: what court and what powers? The clause referred to establishes that it is not the ordinary court of the High Court, but.he Industrial Court set up by the Bill. "I he answer to the second part of the question is, I think, to be found—at any rate in part—in Clause 97, which deals with the powers, because this is tied as the noble Lord, Lord Tangley, inferred, to the provision that a breach of agreement is a failure to use best endeavours, and that would be an

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unfair industrial practice. Of course the agreed remedy under Clause 97, which has proved appropriate, would depend to some extent on the terms of the agreement.
There is our philosophy in this clause. I can understand noble Lords saying that it can be sabotaged because it is purely voluntary. I can understand their saying that it is thoroughly unnecessary and futile as it can be sabotaged, because it is voluntary and the two sides can say, " We shall not operate it at all and we cannot be made to do so." That is perfectly true. But this depends on whether or not they are faced with the actualities of the case when they will ask themselves the question, " Is there an advantage in drafting the agreement sufficiently clearly that it should be enforced "—and for that purpose one requires not a lawyer but a clear-headed man, as the noble Lord, Lord Brown, suggested—"or do we want it unenforced for ever?" I think an increasing number of people will come to the conclusion that there is an advantage in having the agreement enforced.
9.7 p.m.
LORD DIAMOND: I have followed most carefuly the very helpful speech which the noble and learned Lord the Lord Chancellor is making, but I am not clear—no doubt other noble Lords are—about the meaning of " enforceability". I am clear now as to who the parties are; they are the parties to the agreement, which I thought they were; namely, the union on the one hand and the employer on the other, and not the individual worker.
THE LORD CHANCELLOR: That is right.
LORD DIAMOND: " Enforceability ". I understand the noble and learned Lord to say, is forcing the union to carry out its best endeavours to see that the worker complies with what is recommended to the worker, and enforceability against the employer, to carry out the terms of the agreement. Am I right in both respects, and in what are the remedies against each —the remedy against the employer for not carrying out the terms of his agreement, and the remedy against the union for not using its best endeavours to see that the individual employee carries out
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the terms which the union has recommended to him?
THE LORD CHANCELLOR: I think the noble Lord has got it right, although fit is very difficult to follow these things. The question which arises is: what does enforceability mean? I agree that is a term which requires explanation; that is why I referred to Section 97, which shows what the powers of the court would be in such circumstances. The first is to award compensation for breach. If there has been a breach, it does not follow of course that there has been a breach at the time when somebody threatens to commit one. The second (or perhaps I should have said the first) question which may arise for the decision of the court is a declaration of right. That is the first remedy provided by Section 97, and this would partly answer the question of the noble and learned Lord, Lord Wilberforce, about the powers of the court. It has first of all a power to give a declaration of right as to the true meaning of the agreement and to its application to a particular set of circumstances.
Incidentally, I would say to the noble and learned Lord, Lord Wilberforce, that a non-enforceable agreement does not come within the jurisdiction of the court, according to my understanding of the matter. If I am wrong here, he will no doubt study the matter and tell me so; then I shall either apologise or come back to the issue. But enforceability means, first of all, that there can be a declaration of right; secondly, that there can be an award of compensation, and thirdly, that there can be an order restraining certain types of illegal action if they can be specified, and if they are capable of enforcement intrinsically by an order of that type. all within the discretion of the court since the court is not bound to give any one of the three remedies. Up to a point this is a preview of Section 97. No doubt we shall want to come back to it when we discuss that clause. But it is perfectly fair to ask me the kind of territory we are on, and I think that is a fairly accurate generalisation about the kind of territory we are on.
I have already said most of what I could have said in answer to the various points which have been made. For better or for worse, I do not take the view that what we are embarking upon is a

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great new revolution in English legal thinking. In most cases of contract, other than this particular field and in one other field; namely, family arrangements, the presumption is always in favour of enforceability. If I agree to sell my watch to the noble Lord, Lord Diamond, the presumption is that a legally enforceable contract is made, unless I put into it a clause saying: " This is not intended to give rise to any legal consequences ". In the field of family arrangement, in the field of social relations, as when you invite a man to dinner and he agrees to come, and in the field of industrial relations, this presumption does not apply. What we are seeking to do is (to say that in the field of future agreements made in writing, which come within the definition of collective agreements, as that will be defined when my noble friend's Amendment is proposed, and provided it is in writing, this presumption shall be reversed in the case of collective agreements in writing. It is not a very big change, and it accords I think with the best practice of this civilised world. I am bound to say, with my noble and learned friend Lord Wilberforce, that I cannot arouse quite the excitement about it which seems to have animated some people, perhaps outside this House more than in it. but it is a fundamental part of our policy on the Bill, and, as I said before in the course of these discussions, it has never been part of my philosophy to try to avoid a Division where there is a genuine difference of opinion. What I am trying to do is to avoid a misunderstanding as to where each of us respectively stands in a matter on which we may not be agreed.
LORD BYERS: My noble friends and I were very keen in fact to be persuaded by the Government on the lines they were taking, but we have had very important interventions from the Cross Benches by the two noble and learned Lords, one of whom is a great solicitor and the other a Law Lord, and I am now in great difficulty, because both of them said, I think, that the system would be ineffective and never likely to he enforced. The noble and learned Lord, Lord Wilberforce, said that most collective agreements will in fact be unenforceable; then he went on to develop the argument that certain parts of collective agreements
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were in any case totally unenforceable in the courts. Willing as we are to try to get the structure of the Bill right, may I ask whether the noble and learned Lord the Lord Chancellor is saying; categorically that the two noble and learned Lords on the Cross Benches Mere wrong in the views they expressed?
THE LORD CHANCELLOR: I should never be quite so rude as that, if I may say so, but I was suggesting that perhaps neither of them had paid sufficient attention to Clause 97 and to the definition clause of " party ", and it is possible—if the noble Lord is impressed by what they were saying about parties—that subsection (2) of this clause goes some way to meet the case. I would quite agree with both noble Lords if they say that this clause could be ineffective. It can be ineffective. We have deliberately adopted this as part of a long-term policy, because we wished each party to future negotiations—recognising that existing agreements are not touched by the clause —specifically to answer the question, in the course of those negotiations, whether they want that agreement to give rise to legal enforceability. We think that the advantages of that to both sides will become apparent as time goes on. If they do not, of course, the clauses will be ineffective, but we think it is worth trying because we do not agree with the noble Lord opposite who said that things are all right as they are. We do not think that they are, and we agree to that extent with the noble Lord, Lord Brown.
9.16 p.m.
LORD TANGLEY: In spite of the very kind and courteous efforts which the noble and learned Lord the Lord Chancellor has made, I am afraid that he has not succeeded in lightening my darkness —which is a proper prayer to make at about this time of night. It may be that in the interests of brevity I did not make myself quite clear. It is quite clear, if I may respectfully say so, that under Clause 34 the word " Party " is used, and " party " is defined in Cause 32. Therefore, if one is before the Industrial Court on the question whether there has been an unfair practice, the " party " is clearly the trade union. I accept that. But the Lord Chancellor did not deal with the other point I made that prima facie to say that an agreement is legally

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enforceable—which is quite a solemn term—means that it is legally enforceable. That is to say that someone can sue somebody either for specific performance of the agreement or for damages of the breach of it.
THE LORD CHANCELLOR: A contract.
LORD TANGLEY: As a contract. Clause 125 obviously assumes that a collective agreement will create a contract in respect of which damages can be sued for. That is presumably why the Industrial Court is given by Clause 125 exclusive jurisdiction over that type of case by definition. That assumes that Clause 34 is not the only clause to consider. We have to consider the actual interpretation which the courts will probably give to the solemn words " legally enforceable ". I suggest that they at least mean that the union could be sued for breach of this obligation, and the union would not have open to them the defence which would be open to them under Clause 34—namely, that they had done their best to see the agreement was not broken.
Nor am I at all satisfied that there would be no right of action against the individual workman, because when he takes his employment, knowing the situation, and all parties knowing the situation to be that there is an agreement that has been solemnly declared legally enforceable, I should have thought that the courts would probably hold—and if there is any ambiguity we should get rid of it—that that agreement is part of his contract of employment, and that he could be sued for breach of that accordingly. I am quite sure it should be cleared up when tackling the question of damages.
I am not arguing the merits of this clause at the moment at all. I have heard for over 50 years judges criticising Parliament for obscurity of language, and telling us it is no good telling them what the Attorney General said in the House of Commons or what the Lord Chancellor said in the House of Lords. What the soldier said is not evidence. I am not going to be a party to ambiguity on a matter of such tremendous importance. I am certain that these are real
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points and I am sure that the noble Lord, Lord Wilberforce, believes that they are real points. Cannot this be thoroughly discussed before the Report stage? Whatever the decision on the merits of this clause, let us get them into a condition that will not bring Parliament into contempt.
9.20 p.m.
THE LORD CHANCELLOR: Of course if the noble Lord wishes to make representations to me or to continue this discussion between now and Report, I am only too happy to meet either with him or the noble and learned Lords who have also occupied the Cross-Benches in such distinguished fashion. I cannot agree at the moment that there is any ambiguity at all. I quite agree that, even as matters stand at the moment, if the terms of a collective agreement, as they stand unenforceable, are thereafter embodied by implication into the terms of an individual contract of employment between the workman and his employer, they are in theory enforceable though in practice they are not in fact enforced. That is not the result of the provisions, or any of them, of the Bill; this is part of the law of the land as it stands.
As regards the enforcement of this Bill, I would have thought that a combination of Clause 34 and Clause 97 would have reassured the noble Lord about the first of the points he is making. Clause 34 provides that a trade union, if guilty itself of a breach, is of course responsible; but what he was postulating, I had thought, in his previous example was a case where the union was not itself guilty of a direct breach of the agreement but had failed to use its best endeavours. It is for that reason only that I stressed that part of Clause 34. As regards the meaning of enforceability, I should have thought it was apparent from Clause 97, which I venture to suggest he had not fully considered.
LORD TANGLEY: I apologise to the Committee for intervening again, and I ask their permission. May I ask the noble and learned Lord the Lord Chancellor what meaning he attaches to Clause 125(b), in which the expression is used:
" to enforce the collective agreement or claim damages for a breach of it."
because I can see nothing in the Bill, except in the opening subsections of the

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clause we are now discussing, which could conceivably give rise to a claim for damages at all.
LORD WILBERFORCE: The noble and learned Lord the Lord Chancellor has referred a good deal to Clause 97. Am I right in thinking that that clause deals only with the jurisdiction of the Industrial Court over an unfair industrial practice? if my noble friend here is right, and a breach of a collective agreement is simply a breach of a contract which can be sueable under the ordinary law of contract and dealt with under Clause 125 by the Industrial Court, then, with respect, I do not see that Clause 97 covers that because it is only referring to the jurisdiction over an unfair industrial practice. There may be the two separate heads of claim.
THE LORD CHANCELLOR: If the noble and learned Lord will bear with me, if he wants to pursue this matter, because it is highly technical, I am only too happy to do it, but I think we have exhausted this as far as we can in public discussion. He overlooks two facts; the first is that the Industrial Court has no jurisdiction other than that conferred in the Bill. The second is that Clause 125 is a clause excluding the existing courts and not conferring jurisdiction on the Industrial Court, which has its jurisdiction from another clause which I have tried to describe to the noble and learned Lord.
LORD SHINWELL: In view of the debate that is going on between the legal luminaries in the Committee, would it not be wise on the part of the Government to look into this matter and deal with it on the Report Stage?
THE LORD CHANCELLOR: I am sorry I did not hear that.
LORD SHINWELL: It is obvious there is a legal tangle here—at least, it is obvious to those of us who are not acquainted with these legal niceties, nuances, and imponderables. In the circumstances, since there appears to be some ambiguity, would it not be wise for the Government to say that they will look into this matter and come forward at the Report stage in order to clear up what appears to be a legal dispute?
THE LORD CHANCELLOR: I thought that was rather similar to what I have said. I am not persuaded that there is any ambiguity or tangy. If noble and learned Lords who thins: otherwise would care to approach me between now and the Report stage I would very wittingly go into the matter with them. I hope I am always accessible, but I am not going to say what I do not believe to be true; namely, that there is in fact any ambiguity when the Bill is adequately studied.
LORD WILBERFORCE: In view of what the noble and learned Lord said, I am afraid 1 cannot accept his explanation at all. What he has said about Clause 125 confirms that there is confusion. I think it is not a matter for the Report stage; it is a matter which those of us who think otherwise can take., up when the clause is reached. At the moment we are on a simple Amendment which has nothing to do with it.:Perhaps he will agree that we might drop the subject now; and my noble friend end myself, if we are not convinced of our errors when we get to that clause in several weeks' time, can take it up gain.
9.25 p.m
LORD CHAMPION: It has seemed to me for a long time that only two people were actually sticking to the Amendment; namely, the noble and learned Lord the Lord Chancellor and myself. Everybody else has, to tremendous advantage to the Committee, strayed into the Question, whether the clause shall stand part and later stages of this Bill. I have no fault to find with that, because those who have spoken have been so highly critical of this clause and subsequent clauses bearing on this collective agreement. I am bound to say fiat I have listened to this debate with joy, because it has been made quite clear that this part of the Bill, at any rate, is in an awful mess, and about the on13 thing that the Government can do about it is to withdraw these three clauses and to discuss the possible replacement of them with the noble and learned Lord on the Cross-Benches and the noble Lord, Lord Tangley, whose experience in his sort of thing, both as a notable solicitor and as a member of the Donovan Committee, is perhaps unsurpassed. This is something

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to which I shall probably have to refer again when we get to the Question whether the clause shall stand part, because I shall have to remind the Committee of what has been said by these noble Lords and by others, and invite the Committee to accompany me into the Lobby against Clause 32.
The debate started, to some extent, with a speech by my noble friend Lord Brown. I cannot say that I am particularly grateful to him for his support. I am sorry he is not here. I respect my noble friend's experience in industry, as has been referred to both by the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Drumalbyn, but I am bound to say to him (and I hope he reads my remarks) that his experience seems to have been, if I have followed his many interventions, mainly in a very small industry which was almost of a paternal character, the sort of character where industrial relations can be very easy by comparison with some of the industries with which my noble friends had to deal. My noble friend talked of entering into agreements which became standing orders, and then went on, as I understood him, to suggest that such standing orders ought to be legally enforceable. Nonsense! If you are going to have standing orders of the type which he envisages, they ought to be interpreted within the industry, and the decisions taken within the industry, without ever having the possibility of going to court. I should have asked my noble friend Lord Brown, if he were here: would he, in the event of a quarrel about the standing orders that he is talking about, have taken the employees to court; and if he did take them to court, would he have improved industrial relations in the industry of which he is proud? Of course he would not. The whole thing is an absolute nonsense.
My experience was in a different sort of industry. It was in an industry which had 750,000 employees at the time, and, clearly, what can apply to a paternal type of industry cannot apply to the size of industry in which I was engaged. We in the industry in which I was engaged had procedure agreements. They were absolutely first-rate. They had been entered into as a result of lengthy experience; and when there was some difficulty about interpretation, if we could not solve the
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problem at the lower levels within that negotiating machinery procedure, we went on to the next higher level, and so on, so that eventually, within the industry, within the agreements that were a part of what had been negotiated between us, we had no difficulty in finally getting an answer to the points, an interpretation of the things which were in dispute.
Against Lord Brown's experience I must set that of the noble Lords, Lord Cooper, Lord Shinwell, Lord Popplewell, Lord Slater and my own. In this instance, although I respect my noble friend, I think that the weight of our experience would overbalance his. The noble Lord, Lord Drumalbyn, in his intervention said that agreements are not widely flouted. How right he is! Agreements that are entered into between the trade unions and the employers are not widely flouted. It is very seldom that an agreement is flouted by the people who have actually signed and entered into it. Usually, if there is a difficulty it is one which occurs rather on the shop floor than at the level at which agreements are signed. There is always the intention among those between whom agreements are signed that they will be kept. Occasionally difficulties occur; of course they do. They would occur in any walk of life. It is nonsense to try to fit the agreements that we are discussing into the sort of legal framework which appears to satisfy noble Lords opposite. How right was the noble Lord, Lord Tangley, to call attention to this, and how right the noble and learned Lord, Lord Wilberforce, to call attention to the fact that it is not easy to fit this sort of agreement into the sort of framework which noble Lords are talking about!
The simple fact is that what Lord Drumalbyn and his colleagues want to place reliance on is very shifting sand. They want to try to ensure that these agreements can be made enforceable; they want to ensure that if a little difficulty arises anywhere the trade unions, and perhaps in some instances the employers, can be taken to court. I am absolutely positive that would be quite the wrong way to do it, whether there is an automatic presumption of legally enforceable agreements or whether they sign agreements affecting a legal contract. This is something to which the noble Lord, Lord Drumalbyn, referred; and he

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quoted foreign experience. So did the noble and learned Lord the Lord Chancellor. I wonder if either can tell us whether in those countries to which they referred there is a system of contracting into a legally-enforceable contract or of contracting out. This seems to be the point we are now talking about in relation to this Amendment: whether it will be a deliberate contracting in or contracting out.
I have very grave doubts about the approach of the Government to this whole matter. I am not going into the clause as a whole, for we must discuss that eventually; but I am bound to say that the doubts expressed from the Cross-Benches convince me completely that this part of the Bill is a mess. It is something that will have to be cleared up. If not, industrial relations in this country will suffer as a result of the failure of the Government to heed what has been so forcefully expressed from the Cross-Benches. In addition, we have had widely devastating criticism from the noble Lord, Lord Lloyd of Hampstead, who has very great experience in matters pertaining to the law.
The noble and learned Lord the Lord Chancellor ended by saying that the unions, sooner or later, will come to the point where they will gladly accept legally enforceable contracts. All that I can say in connection with this Amendment is, if eventually they come to that point, even if my Amendment is carried, they will then contract in and not have to contract out. This is the whole point of this Amendment: that there should be voluntary arrangements entered into freely. That is why I am bound to say that nothing that has been said on the other side has convinced me. What has been said from the Cross-Be aches, certainly, has upheld every point that I have thought of in this connection; and for that reason I sincerely hope that noble Lords on the Cross-Benches, as well as my noble friends, will support me in the Division Lobby.
9.35 p.m.
On Question, Whether the said Amendment (No. 238A) shall be agreed to?
Their Lordships divided: Contents, 40; Not-Contents, 104.

CONTENTS

Archibald, L.

Gaitskell, Bs.

St. Davids, V.

Ardwick, L.

Gardiner, L.

Shackleton. L.

Bernstein. L.

Henderson, L.

Shepherd, L.

Beswick. L.

Hilton of Upton, L. [Teller.]

Shinwell, L.

Blyton, L.

Hoy. L.

Slater, L.

Bowden, L.

Janner, L.

Snow, L.

Brockway, L.

Kennet,L.

Stonham, L.

Burntwood, L.

Lloyd of Hampstead, L.

Stow Hill, L.

Champion, L.

Maelor, L.

Strabolgi, L. [Teller.]

Collison, L.

Morris of Kenwood, L.

Taylor of Mansfield, L.

Cooper of Stockton Heath, L.

Platt, L.

Wells-Pestell, L.

Davies of Leek, L.

Plummer, Bs.

White, Bs.

Delacourt-Smith, L.

Popplewell, L.

Wynne-Jones, L.

Diamond, L.

NOT-CONTENTS

Aberdare, L.

Brougham and Vaux, L.

Drumalbyn, L.

Ailwyn, L.

Burgh, L.

Ebbisham, L.

Allerton, L.

Burton, L.

Elliot of Harwood, Bs.

Amherst, E.

Byers, L.

Essex, E.

Amory, V.

Caldecote, V.

Exeter, M.

Auckland, L.

Clifford of Chudleigh, L.

Ferrers, E.

Balfour, E.

Clwyd. L.

Fortescue, E.

Balfour of Inchrye, L.

Conesford, L.

Gisborough, L.

Barnby, L.

Cottesloe, L.

Glendevon, L.

Barrington, V.

Cowley, E.

Goschen, V. [Teller.]

Beauchamp, E.

Craigavon, V.

Gowrie, E.

Belstead, L.

Craigmyle, L.

Gray, L.

Berkeley, Bs.

Cranbrook, E.

Grenfell, L.

Bledisloe, V.

Crawshaw, L.

Hailes, L.

Brabazon of Tara, L.

Davidson, V.

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

Bridgeman, V.

De La Warr, E.

Brooke of Cumnor, L.

Denham, L.

Hankey, I..

Brooke of Ystradfellte Bs.

Derwent, L.

Hanworth, V.

Harvey of Prestbury, L.

Mowbray and Stourton, L [Teller.]

Selkirk, E.

Heisby, L.

Sinclair of Cleeve, L.

Hood, V.

Nugent of Guildford, L.

Somers, L.

Inglewood, L.

Oakshott, L.

Stamp, L.

Jellicoe, E. (L. Privy Seal.)

Poole, L.

Strange, L.

Kemsley, V.

Rankeillour, L.

Swaythling, L.

Killearn, L.

Redesdale, L.

Teviot, L.

Kilmany, L.

Redmayne, L.

Teynham, L.

Lothian, M.

Reigate, L.

Thorneycroft, L.

Lucas of Chilworth, L.

Robertson of Oakridge, L.

Thurso, V.

Luke, L.

Rothermere, V.

Tweedsmuir, V.

Lyell, L.

Ruthven of Freeland, Ly.

Tweedsmuir of Belhelvie, Bs.

Margadale, L.

St. Aldwyn, E.

Verulam, E.

Merthyr, L.

St. Just, L.

Vivian, L.

Milverton. L.

St. Oswald, L.

Wakefield of Kendal, L.

Molson, L.

Sandford, L.

Westminster, D.

Monck, V.

Savile, L.

Wigram, L.

Windlesham, L.

On Question, Amendment agreed to.

9.43 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 238B:
Page 25, line 5, after (" writing") insert (" in a formally executed deed signed by the parties therto within the lawful scope of their authority ").
The noble Lord said: This Amendment, as will be obvious to your Lordships, is to some extent an alternative to Amendment No. 338A which has just been defeated in the Lobby by the big battalions. The Amendment needs little explanation. Its purpose must be clear to everyone. If we are to have the nonsense of the greatest possible legally enforecable agreements, then for Heaven's sake! let us have them as nearly as possible in language which the courts may be able to understand and interpret. I say that, despite the fact that it was made obvious to us in the last discussion that this is going to be an extremely difficult matter, even for lawyers of the standard of those to whom we have listened this evening. The difficulty here must be obvious to all who have ever had to consider the efforts of highly skilled Parliamentary draftsmen. With the skills that are born of great knowledge and experience, with a body of information filed and tabulated as to how the courts dealt with this phrase or that, that word or the other, they still make drafting errors that have to be cleared up in the courts, and case law is established. These are the people whose job it is, whose life is spent in doing precisely that. If that is the case with Parliamentary draftsmen, how much
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greater is going to be the possibility of error if the amateur draftsman is let loose on agreements which will have to try to embody in language understandable to the courts practices and customs which have grown over many years of voluntary negotiation in a given industry!
It will, I suggest, be hopeless for the amateur, lacking legal knowledge, to attempt to draft an agreement that would at least have some possibility of being construed even in the Industrial Court and not an ordinary court of law. There would be a better chance of getting it right if, as we are here suggesting, agreements which are intended to be legally enforceable are properly drawn up by lawyers competent in the act of preparing suitable instruments for execution by the parties. I should not like to bet that they would get such agreements right in every case, but at least they would have a better chance of doing so than the employer's labour relations officer or the trade union official or the shop steward. Added to that, I tend to think that agreements which are to be legally enforceable contracts ought to have about them a degree of solemnity which the signing of such a deed or document would impart, to ram home the fact that they are engaged in something more than negotiation which by custom and past practice has been satisfactorily honoured in the past.
This is a simple Amendment. It seeks to ensure that, so far as possible, we shall have the sort of deed, or document, that would be preferable to the sort of agreement that has been discussed here this evening—namely, words that have been

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entered into as a result of past experience, past experience of collective agreements and so on. I think that to accept this Amendment would perhaps go some little way, though not very far, to cancelling out the result of the last Division. I beg to move.
9.48 p.m.
LORD BELSTEAD: This Amendment calls for a formally executed deed. Listening to the noble Lord, Lord Champion, I felt that perhaps he rather wanted an illuminated address. We on this side of the House do not visualise requiring such a degree of formality before the presumption of enforceability should apply. Although the noble Lord was, as usual, persuasive, I must say that I found the Amenment surprising, in view of the Opposition's emphasis throughout on the importance of not having an over-legalistic approach. I suggest to the Committee that the Opposition are overlooking the factor that parties to agreements will know that no oral agreements are legally enforceable; and that other written agreements are enforceable unless there is a disclaimer. So to that extent they will know where they stand. Naturally, both sides of industry will treat these provisions with the care which I think will make the terms of this Amendment unnecessary.
I would remind your Lordships, as my noble and learned friend the Lord Chancellor did, of the speech of the noble Lord, Lord Brown, who said that in his experience what was needed here was the clear head of a sound man. The noble Lord said that in his 25 years experience he had not found that shop stewards were in the least incapable of drawing up clear agreements.
On a later Amendment, No. 238RR, the Committee will be debating the position of joint negotiating bodies in this matter and we shall be putting forward the case that there are no special technical problems involved on their account. It is precisely because it is envisaged that bodies might wish to opt out of a presumption of enforceability, either on certain occasions or because an agreement is being concluded at a particular level or in circumstances in which legal enforceability might not be desirable, that the following subsection to this one (2) provides for opting out. For all these
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reasons, I feel, to say the least that it is painting the lily to put this Amendment forward. I therefore ask the Committee, after it has been considered, not to accept it.
LORD CHAMPION: I recognise that this Amendment is not one about which I would go to the stake, and I should never ask anyone to present me with an illuminated address about it, as the noble Lord suggested. The illuminated address which I have at home on my wall refers to my long service to the trade union to which I had the honour to belong. I leave it at that. I would only say to the noble Lord, Lord Belstead, that if one cannot get the best, one tries to get the next best; and we thought that as we could not get the best—the Amendment which we moved and on which we voted—perhaps we might get the next best, the Amendment now before the Committee. As I said, I would not go to the stake about this—indeed, not even into the Division Lobby. Therefore I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn
9.53 p.m.
LORD BURNTWOOD LORD BURNTWOOD moved Amendment No. 238CC:
"No. 238CC Page 25, line 7, at end insert ('or construed')."
The noble Lord said: Having listened to many hours of debate on this Bill without intervening, I am optimistic in thinking that possibly this Amendment may commend itself to the Government. The discussion on the last Amendment but one included observations from many noble Lords on the fact that there was a level, which I might describe as being fairly near the shop floor, at which agreements could be entered into which would be enforceable if the Government had their way. What I would suggest to the Government is that it might be desirable to have a judicial long-stop, so that a second thought might be taken on what was intended by such agreements. I do not want to go into the long arguments already deployed about whether legal rigidity is desirable or otherwise; but there are many cases in which there are documents entered into, say, in a factory where there is great pressure of work, or where people with the best intentions in the world have come to an agreement as

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between management and workers' representatives, which, had more time been spent on discussing the documents, might have been more clearly written.
I am well aware that the normal operation of the courts allows for the construction of written documents to be preeminent. At the same time I am advised that it is also provided that, outside the construction of the written document, there shall be some consideration of the circumstances surrounding how the agreement was made and recorded. I should have thought that if we said that legal rigidity in these circumstances is necessary for enforceability, there is a strong case for saying that what I have described, in my layman's langage, as a judicial long-stop might be useful, as it might preserve the position so that a works could keep going and not be interrupted by a dispute or strike. There are many examples in history of documents drafted in a hurry, the meaning of which, as it was first assumed, turned out to be completely wrong. The classic case is the dispatch dictated and signed by Lord Raglan at Balaclava, which got into the hands of Lord Cardigan, was completely misconstrued and led to the events about which we all know. I cite that case to demonstrate that second thoughts on the reading of a document may be very useful, indeed. It is merely the application of a little bit of common sense. I beg to move.
9.55 p.m.
LORD DRUMALBYN: I must confess I found a little difficulty in understanding what this Amendment meant when I read it, but now I think I see a little more clearly what the noble Lord means, though I do not think his Amendment would achieve the objective. This clause as drafted reads—
" Every collective agreement which…does not contain a provision which (however expressed) states that the agreement or part of it is intended not to be legally enforceable,"
The noble Lord wants the clause to read
"Every collective agreement which…does not contain a provision which (however expressed or construed) states that the agreement or part of it is intended not to be legally enforceable,"
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The purpose of the words " however expressed " is simply to make clear that there is no definite formula by which enforceability is to be excluded. It can be excluded in any words that those concerned choose to use. The noble Lord wants to add to that phrase " and construed ". The difficulty I find about that is that the provision is expressed by the parties who are signatories to the document. It would therefore seem to follow that if one added another phrase after that it would also be " by the parties; but that would not be very sensible, and it is clearly not what the noble Lord means. It would mean, in effect, that however the agreement was expressed, if what was expressed by the parties did not represent what the parties really meant, or what one of them really meant, they should construe it in some other way. I am sure that would not be a viable proposition.
I understand that in the noble Lord's view there should be a kind of judicial longstop, so that if the document did not turn out as was intended then it could be looked at again. But who is going to look at it again? If it is challenged as being, after all, an enforceable document, and not a document which on the face of it appears not to be intended to be legally enforceable, then obviously the Industrial Court would have to interpret it in such a case. That could presumably be done in any case. If there is doubt about the way the exclusion of enforceability is expressed in the document, then it can, I understand, be challenged in the Industrial Court, and a second look can be taken at it in that way.
The noble Lord, however, seemed to be talking about the meaning of particular provisions and not the one provision which states that the agreement, or part of it, is intended not to be legally enforceable. I find it difficult to see any parallel between an order passed in the Crimea and a contract which is expressed in a certain way and which is intended to mean that enforceability is excluded. Nor do I see any point in adding the words " or construed ", especially since the body that is going to construe must be in any case the Industrial Court. I confess that I do not really understand this, but in so

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far as I do understand it I do not think it is necessary.
LORD BURNTWOOD: The simile I tried to draw about the Charge of the Light Brigade was that if Lord Cardigan had had time seriously to consider what was meant, or had a court-martial been held in respect of Lord Cardigan—which he richly deserved—to examine that document issued by Lord Raglan, a very different construction might have been placed on it. I know that it is a good thing to give the judges an opportunity, which they use frequently of their own accord, to use a little common sense as to what really was intended and not to take what is written in the document.
LORD DRUMALBYN: Is not the answer to the noble Lord this: that if the document is expressed as intended in some way or another not to be enforceable at law, it will not go before the Court. But if there were a challenge as to the intention it could surely come only from someone who wanted to see that it was enforceable at law; and then he would take it to the Court to be decided. But there is really nothing else to be decided, as far as I can see. It seems to be a fairly straight issue and I would have said this would happen anyway.
LORD SLATER: I have listened to my noble friend moving his Amendment, and it takes me back to my union days when we used to get into branch meetings, and different members used to put their own interpretations upon items that were introduced during the course of discussion. Different people had different opinions. I remember an old miner who always used to say, "It is a matter of opinion." And it is a matter of opinion here. My noble friend differs from Lord Drumalbyn in what he was saying just now, where it says " expressed "—that is where he would like to see " or construed ". There are two parties here: one is leading for the Government and the other for the Opposition. Why should it go to the Industrial Court? Surely we are sensible enough people here, and if it is a matter of expressing one's particular point of view of the construction to be put upon a matter between two
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parties, that is what we are after: that is the way it is being construed.
If the noble Lord were sitting alongside here, he would be expressing his opinion and I should be expressing mine, and it is to be a matter of opinion as to how it would be construed. But why we should have to take it to the industrial court has me absolutely beat. I cannot see any reason for it at all. I am considering the background of the noble Lord as against my own: I was only an elementary schoolboy, whereas other noble Lords have been to Oxford, Cambridge or one of the other massive universities. I am at a loss to understand how people who are supposed to be so advanced in intelligence could find forms of expression against the case that has been put by my noble friend in trying to get them to agree to this quite simple and reasonable Amendment.
LORD SHEPHERD: I think the noble Lord, Lord Drumalbyn, is in some difficulty because, as he said in his first reply to my noble friend, the way in which the Amendment was described to him was rather different from his first impressions when he saw it on the Marshalled List. Would the noble Lord take this away to consider it, because I am sure my noble friend would not press it if the noble Lord could undertake to look at it. I say that because I think I know the origins of this Amendment which were (shall I say?) in our legal fraternity on this side of.he Committee. I think it arose from a doubt, and I wonder whether the noble Lord would agree to take it away and consider the matter, and perhaps he would like later on to have a talk with ray noble friend.
LORD DRUMALBYN: Of course I am willing to do that, and perhaps we may be able to discover whether there is a real point to be met. I am afraid that at the moment I am still not convinced that there is.
On Question, Amendment negatived.
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD MERTHYR): In calling the next Amendment may I draw

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the attention of the Committee to the fact that if Amendment No. 238C is agreed to I shall not be able to call Amendment No. 238DD.
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Perhaps I may also draw the attention of the Committee to the fact that if Amendment No. 238MM is agreed to I shall not be able to call Nos. 238D to 238JJ inclusive.
10.8 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 238MM:
Page 25, line 19, leave out subsections (3) and (4).
The noble Lord said: The purpose of this Amendment is to leave out subsections (3) and (4) and these will then be included at the end of the Bill in the general definitions. 'The origin of this Amendment is that the Government undertook in another place, after criticism from several quarters, to reconsider where the definition of " collective agreement ", at present in Clause 32, should be. As these Amendments show, the definition is to be placed elsewhere in the Bill.
The substantive provisions of Clause 32 concern the presumptions of legal enforceability in respect of collective agreements. They relate those presumptions to agreements made in writing after the commencement of the Act. The definition of " collective agreement " on the other hand applies to the use of the terms not only in Clause 32 but also in many other parts of the Bill. For example, it occurs in the provisions dealing with the exemption of dismissals procedure agreements, the effect of strike notices, restrictions on contracting out, the definition of " procedure agreement " and in connection with the closed shop agreement. Over so wide a field it has required careful drafting to cover such differing applications comprehensively. That is, after all, realistic. The phrase, as used in common parlance, covers a very wide range.
A major criticism which the Government have been anxious to meet was that the inclusion of the definition within Clause 32 has confused people. We have seen in the Committee this afternoon how it confused people, particularly those with little practice in interpreting legal documents. It became obvious that some were even afraid that there was something sinister about it. They could not understand the relationship of subsections (3) and (4) to the earlier parts of the clause. There is no sinister intention on the part of the Government. Our contention has been, and remains, that Clause 32(1) and (2) applies only to future written agreements.
However, we have taken note of the confusion and suspicions that were voiced. We do not accept that they were justified but we are anxious to clear up any mismderstandings. We do not want a continuance of what has been reported as widespread and serious misunderstanding. For these reasons, therefore, we are prepared to remove the definition of " collective agreement " from Clause 32 by leaving out subsections (3) and (4). At a later stage we shall propose that the definition be placed in a clause following Clause 157. When we come to it there are further considerations which, if I am still here, I shall bring to the notice of the Committee. But as they do not arise on this clause I should not be in order if I referred to them now. I hope that the Committee will accept this explanation and agree to the removal of the two subsections.
LORD DAVIES OF LEEK: I hope that the noble Lord, Lord Drumalbyn, will be here later. He is working very hard and deserves commendation from his own side. When I went through the logic and semantic; of this part of the Bill, about collective agreement " and on the definition, the noble Lord sometimes shook his head, but I am delighted now to know that Davies of Leek was correct in his analysis. If I look at page 115 of the Bill, find that:
" collective agreement' has the meaning assigned to it by section 32(3) of this Act".
We are withdrawing subsection (3), so noble Lords will see how muddled we can get. I am told, " Do not worry about that. We are going to stick in a definition of `collective agreement' somewhere else ".
That is all I wanted to point out. We are told that the definition will be found somewhere else and, when I look for the definition. I find it has been Liken out. The noble Lord says, " Later on we will tell you exactly what collective agreement ' means." I hope that he noble Lord will not say that I should have done more homework. We are working so hard these days with our battalions here that we have little time to go into the difficult and abstruse workings of the minds of the noble Lords opposite. I do not want to advise noble Lords opposite, but, please, will they tell us what " collective agreement " means in a manner that even a Welshman may understand?
LORD DRUMALBYN: I cannot guarantee that that particular Welshman will understand it, but if he chooses to look in the Marshalled List he will see the definition of collective agreements.
LORD BERNSTEIN: We have spent the major part of six hours dealing with Clause 32. Is it reasonable for your Lordships to remain here until two o'clock in the morning when those hours could have been given to discussion of the new clauses that are coming later instead of the ones which have now been scrapped?
LORD CHAMPION: I cannot complain over much about the deletion of these two subsections. Having prepared material for eleven Amendments on these subsections, however. I find that the time spent has been wholly wasted.
THE LORD CHANCELLOR: Save them up.
LORD CHAMPION: I am coming to that point. I can tell the noble and learned Lord the Lord Chancellor that I shall look through the Amendments, which I have prepared very carefully, to see if they fit in with the new clause which the noble Lord, Lord Drumalbyn, is to propose. I think there is something to he said for having definitions relating to an important part of a Bill situated before the clauses to which those definitions apply. It might have been an advantage to have included the definitions which come later in this part of the Bill so that we should know exactly to what subsequent Amendments and clauses refer.
We had a very long discussion about whether the definitions which are now being moved out of the Bill were sound. Clearly that was understandable in the circumstances. Perhaps it is as well to have definitions coming before clauses to which they relate. This applies to Clause 42. When we get to the definition of " sole bargaining agent " we shall be considering the definitions which in discussing those parts of the Bill will be extremely useful because they relate to clauses which follow. I can understand that perhaps in the circumstances it may have been found best to have an addition to the definitions which would apply only to those clauses we are discussing. In that case perhaps it is better to have
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them placed later in the Bill. Clearly that is what the noble Lord, Lord Drumalbyn, is thinking. Having regard to that, I certainly shall put no opposition in the way of the Committee adopting the Amendment.
10.18 p.m.
On Question, Whether Clause 32, as amended, shall stand part of the Bill?
LORD CHAMPION: I make no apology for discussing this clause as a whole again, although inevitably some of the arguments I would have used in this connection have already been used by other noble Lords in connection with the first Amendment we discussed on the clause, notably by the noble Lords, Lord Tangley, Lord Wilberforce and Lord Lloyd of Hampstead, all of them eminent lawyers who brought their legal minds to bear on the clause as a whole rather than on the Amendment we were then discussing.
I certainly do not apologise for initiating or attempting to initiate a wide discussion on this clause, despite the fact that that Amendment caused considerable discussion in another place. I have heard it suggested that because a clause or an Amendment was discussed in another place we ought not to discuss it in detail here. I do not accept that for one moment. This House is part of the Legislature, and as such it has a duty to consider in detail Bills that have come from the other place. I should hesitate, however, to accept what Bagehot said in this passage of the House of Lords:
"The office of an order of nobility is to impose on the common people, not necessarily to impose on them what is untrue, yet less what is hurtful, but still to impose on their quiescent imaginations what would not otherwise be theirs."
I do not accept that, but I do accept what he says a little later:
"If we had an ideal House of Commons, perfectly representing the nation, always moderate, never passionate, abounding in men of leisure, never omitting the slow and steady forms necessary for good consideration, it is certain that we should not need a higher Chamber."
No one could pretend that this Bill went through the other Chamber with the progress which could be said by the most biased imagination to have been slow and

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steady, or that the Bill had good consideration. It most certainly did not. That is why it must receive that consideration here.
Clause 32 is one of the most important clauses in the Bill, establishing, as it does, the enforceability of collective agreements and changing entirely the system which has developed and has served the country reasonably well—that of voluntary agreements, freely entered into in the main, not within a wholly unnecessary legal framework. It has been said with some truth that a collective agreement is at once a business compact, a code of relations, and a treaty of peace, and in Britain certainly it is frequently part of constant and dynamic negotiations. This matter of the enforceability of collective agreements was commented on at some length in the Donovan Report, and of it Mr. Andrew Shonfield in his Note of Reservation said:
"The proposal in essence is that the bias of English law, as it has been hitherto, should be changed. Instead of making it complicated and difficult for unions to enter into contractual obligations which are enforceable at law, so that it has become an eccentric thing for a union to do, unions and employers should be encouraged to treat it as the normal thing to do."
As against that I would set the full weight of the majority of the Commissioners, who say, at paragraph 502:
"At the present time, legislation making procedural agreements legally enforceable would not in fact be enforced, and like all legislation that is not enforced would bring the law into disrepute."
Surely the question we have to ask in this connection is, what employer seeking peace in his undertaking is going to jeopardise the whole future of that undertaking by bringing an action for unfair industrial practice to the Industrial Court? Even if he did so, it would probably be just as ineffective as was the action in war time when there was perhaps every justification for it against the Kent miners, the case upon which Sir Harold Emmerson gave evidence to the Commission.
It may be said in reply to our arguments on this clause that almost all human activities are ultimately regulated by law. That may be true, but it is a common feature of human experience that to enforce the law in some cases is
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outside the realm of practical politics—and I need not remind noble Lords here that politics is the art of the possible. I believe that it will be impossible to enforce the law in this respect if this clause goes through, and if it becomes part of an Act of Parliament. It will not be enforced; the employers will not enforce it, the Secretary of Slate of the day will not try to enforce at; it will fall into disrepute simply because of the fact that it will never be enforced.
Much more could be said about this clause, but I will content myself with a final quotation from the personal addendum, in the Donovan Report, of the noble Lord, Lord Donovan. He quoted from a letter from a Liverpool Chamber of Commerce, who had been asked why no action had been taken against the dockers who were involved in breaches of contract. This letter said:
"It had been decided that it would merely have served to exacerbate the relations between the two parties and act as an irritant."
In our industrial relations in this country we want very much less exacerbation, less irritation, more tolerance and good sense in this Bill, and this clause is not the way to get it.
10.25 p.m.
LORD DAVIES OF LEEK: This is truly one of the most important parts of the Bill, and probably one of the most important little debates that we hall have. It is not my intention to fillibuster, but I sincerely want your Lordships to understand that, according to my reading of this clause, even for a registered union which is in some kind of privileged position, this clause and what we have discussed previously alters completely the legal responsibilities of its officials and its members. I gather from this clause that if an agreement is made, even nonmembers of the union in a shop could be considered liable. A union which signed a legally binding agreement would be under legal obligation to use its best endeavours to avoid or stop any strike by workers that was in breach of the agreement.
I cannot see how this can be interpreted within a code of law. I would not pit my knowledge against that of noble Lords in this Committee, not having been trained in the law; but I try to understand the common sense and the

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meaning of the words here, and I should like to know how anybody can interpret " to the best of one's endeavours". In athletics, for example, I know that the best of one man's endeavours will not come anywhere near a world record or compare with the best endeavours of somebody else. The phrase " best endeavours" is an immeasurable thing that no judge can cast before an individual or a trade union. Because one thinks the best of one's endeavours have not been used, we are then landed with another illogical piece of phraseology; would he or would he not therefore be liable to be charged with an unfair practice? If he is charged with an unfair practice, the union could come in for a swingeing scale of fines. I am not making this up; this is the reality of this clause, when you try to turn it into punishment by the use of courts. A union, whether registered or not, or a group of its members, could be sued for damages.
An employer who had been unable to prevail upon a union to accept his ideas about a new procedure agreement for dealing with grievances could ask for a reference to the C.I.R., and then seek action from the N.I.R.C. to make the recommendation of the C.I.R. legally binding on his workpeople. What this amounts to is, that whichever way you turn you some smack up against the law, even if you are a registered union. As my noble friend has said, this is not the way to get the best industrial practice; it is not the way to get compromise.
I said the other day that I sincerely believe, without being emotional about it, that we in this country have fallen for a lot of propaganda and trivialisation of industrial disputes on television, and suffered trivial chatter by a lot of people. Sometimes on brains trusts you hear the silliest things uttered, getting rounds and rounds of applause, about lazy people at work, and we are undermining one of the finest and most responsible trade union systems in the world. Granted that we do not want the agitators who, for malevolent purposes, are upsetting production, but, for Heaven's sake, a sausage machine like this—full of different sized sausages, some of them bad ones indeed, and God knows what is the meat inside, dead cats I should think—to deal
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with the mighty trade union movement, as one of the noble and learned Lords said, is unworkable.
One other brief point; a union which signs this legally binding agreement would have the legal responsibility for the actions of any person who might be in breach of the agreement, whether a member of the union or not. Any union that had signed this would have responsibility for anybody working in that shop, whether that person had signed the agreement or not. I will not be dogmatic about that, but I think I am right. I am fairly dogmatic about some of the other points in this mixture of morality, ethics and law, to try and settle disputes by jurisprudence, or by legal and binding decisions from the Bench. Some other simpler process is needed. Through 130 years of custom, practice and understanding between master and men (to use the old phrase), the managerial side and the production side are more and more, in this modern world, leading to co-operation, despite all the vicious things that have been said about our trade union movement.
This House seems to be euphoric because it thinks it is on the verge of going into the Common Market, but when we have mobility throughout the whole of Europe, when we have the men of all nationalities moving from one country to the other, simplicity in trade union law will be necessary Simplicity in dealing with men and employers will be the essence of good industrial practice. Clause 32. right from the start, in my opinion—and I base it on a little knowledge—will undermine that. I support my noble friend that Clause 32 should be withdrawn.
THE LORD CHANCELLOR: I do not want to prolong this debate because I said everything I wished to say in response to an earlier Amendment on this clause. It is worth recalling that the only point we are discussing in this clause —the noble Lord, Lord Champion agrees that some agreements ought to be enforceable, and so do we—is whether the presumption in the case of written agreements should be in favour of enforcement or not. I have given my reasons for thinking that we are right. Any question as to the degree of responsibility which may follow from enforceability can be

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discussed at several subsequent places in the Bill. The only thing we are concerned with now is which way the presumption should work, and that point has been exhaustively discussed on both sides of the Committee.
Resolved in the affirmative, and Clause 32, as amended, agreed to accordingly.
Clause 33 [Presumptions relating to proceedings of voluntary joint negotiating bodies]:
10.42 p.m.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 238NN:
Leave out Clause 33 and insert the following new clause—
"Presumptions relating to proceedings of voluntary joint negotiating bodies.
33.—(l) This section applies to any joint body consisting of representatives of one or
10.34 p.m.
On Question, Whether Clause 32, as amended, shall stand part of the Bill?
Their Lordships divided: Contents, 87; Not-Contents, 28.

CONTENTS

Aberdare, L.

Dudley, E.

Merthyr, L.

Alexander of Tunis, E.

Elliot of Harwood, Bs.

Milverton, L.

Allerton, L.

Emmet of Amberley, Bs.

Mowbray and Stour on, L.

Amherst, E.

Essex, E.

Nugent of Guildford, L.

Amory, V.

Exeter, M.

Poole, L.

Balfour, E.

Ferrers, E.

Rankeillour, L.

Balfour of Inchrye, L.

Fortescue, E.

Redesdale, L.

Barrington, V.

Gisborough, L.

Redmayne, L.

Beauchamp, E.

Glendevon, L.

Reigate, L.

Beaumont of Whitley, L.

Goschen, V. [Teller.]

Rothermere, V.

Belstead, L.

Gowrie, E.

Ruthven of Freeland, Ly.

Berkeley, Bs.

Gray, L.

St. Aldwyn, E.

Brabazon of Tara, L.

Hailes, L.

St. Just, L.

Bridgeman, V.

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

Sandford, L.

Brooke of Cumnor, L.

Savile, L.

Brooke of Ystradfellte, Bs.

Hankey, L.

Selkirk, E.

Brougham and Vaux, L.

Harvey of Prestbury, L.

Sinclair of Cleeve, L.

Burton, L.

Helsby. L.

Somers, L.

Caldecote, V.

Hood, V.

Stamp, L.

Clifford of Chudleigh, L.

Inglewood, L.

Thorneycroft, L.

Coleraine, L.

Jellicoe, E. (L. Privy Seal.)

Thurso, V.

Cottesloe, L.

Kemsley, V.

Tweedsmuir, L.

Cowley, E.

Killearn, L.

Tweedsmuir of Belhelvie, Bs.

Craigmyle, L.

Kilmany, L.

Vivian, L.

Cranbrook, E.

Kinnoull, E.

Wakefield of Kendal, L.

Crawshaw, L.

Lothian, M.

Westminster, D.

Davidson, V.

Lucas of Chilworth, L.

Wigram, L.

Denham, L. [Teller.]

Luke, L.

Windlesham, L.

Digby, L.

Lyell, L.

Drumalbyn, L.

Margadale, L.

NOT-CONTENTS

Archibald, L.

Delacourt-Smith, L.

Shepherd, L.

Ardwick, L.

Diamond, L.

Snow, L.

Bernstein, L.

Gaitskell, Bs.

Stow Hill, L.

Beswick, L.

Garnsworthy, L. [Teller.]

Strabolgi. L.

Bowden, L.

Hilton of Upton, L. [Teller.]

Strange, L.

Brockway, L.

Janner, L.

Wells-Pestell, L.

Brown, L.

Morris of Kenwood, L.

White, Bs.

Champion, L.

Platt, L.

Wynne-Jones, L

Collison, L.

St. Davids, V.

Davies of Leek, L.

Shackleton, L.

more organisations of workers and of representatives either of one or more employers or of one or more organisations of employers or of a combination of one or more employers and one or more organisation of employers, with or without other persons, and established by or under a collective agreement (whether made before or after the commencement of this Act) for either or both of the following purposes, that is to say—

(a) regulating the terms and conditions of employment of workers of one or more descriptions;

(b) determining, in relation to workers of one or more descriptions, any matters for which a procedure agreement can provide.

(2) The following presumptions shall apply to any proceedings of a joint body to which

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this section applies, where those proceedings take place after the commencement of this Act.
(3) For the purposes of any such proceedings it shall be conclusively presumed that the parties (whether organisations of workers. employers or organisations of employers) for the time being represented on that joint body tin this section referred to as " the constituent parties ") intend to authorise it, in relation to matters falling within the scope of its functions. to make decisions having effect as legally enforceable contracts made on behalf of the constituent parties.
(4) Any decision made by any such body in any such proceedings, in relation to matters falling within the scope of its functions, if the decision—

(a) is duly recorded in writing by or on behalf of that body, and

(b) as so recorded, does not contain a provision which (however expressed) states that the decision is intended not to be legally enforceable,

shall he conclusively presumed to be intended by that body to have effect as a legally enforceable contract made an behalf of the constituent parties.
(5) In this section decision ' includes any award or resolution, by whatever name called. and functions', in relation to a decision of a joint body established by or under a collective agreement, means its functions under that agreement as it has effect at the time of that decision."
The noble Lord said: I should perhaps explain to your Lordships that the rewriting of this clause is an attempt to meet some criticisms of the clause which were made in another place. Clause 33 relates to voluntary negotiating bodies established by or under collective agreements. Subsection (1) differs from the previous drafting in specifying more comprehensively the composition of bodies to which the clause relates. The difference is small but significant. It recognises that for some the parties represented may include individual firms and one or more employers' organisations. The function of these bodies as shown in subsections (1)(a) and (b) is unchanged. It is to regulate either the terms or conditions of employment of any workers or any matters provided in a procedure agreement, or both. The clause applies to written decisions of such bodies a presumption equivalent to that applied by Clause 32 to collective agreements reached by other ways of collective bargaining. The joint negotiating bodies cover bodies as widely varied as joint industrial councils and works committees. From these industry-wide councils, the same pattern
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runs in the constitution and functions of many smaller bodies with less responsibility and functioning at lower levels within industry. Where they conform to the pattern and are authorised to make and to promulgate decisions they are within the scope of Clause 33. Some bodies, notably those at national level, have people within their membership who are independent of the constituent parties; and they are there to assist in decision making. Alternatively, they may provide for resolution of disputes arising in their negotiations by an independent arbitrator or arbitration body, and may give that body power to determine on behalf of the various parties the matter or matters on which they fail to agree.
Subsection (2) of the new clause is designed to bring out more clearly that the presumptions specified in the clause apply only to proceedings which take place after the commencement of the Bill. Subsection (3), together with the meaning ascribed to " functions " in subsection (5), is designed to remove the doubts which have been voiced about whether there was any risk at all of the conclusive presumption being interpreted by the courts as having retrospective effect. We do not think there was such a risk but we wanted to make matters quite clear. Subsection (4) is substantially in the same form as subsection (3) of the old clause. Noble Lords will have observed that the term " award " has been omitted here. However, as subsection (5) of the new clause shows, a decision of the joint body will include an " award " or a " resolution " where either may be the term appropriate to a particular body.
I should perhaps add that the amending clause which is to follow Clause 157 —that is, Amendment No. 287B—will include a provision that any reference in the Bill to " collective agreement " includes a decision of a joint body to which this clause refers. That is the substance of this clause. I hope I have explained clearly what the small alterations amount to, and I hope that it adds to the clarification of the clause.
10.47 p.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 238QQ, as an Amendment to the Amendment:
Line 6 of subsection (1), leave out (" with or without other persons ").
The noble Lord said: This Amendment is, as the noble Lord will have seen, merely a probing Amendment. Although he explained to some extent what is meant by the words I am proposing here to leave out, I am not sure that he gave us a complete explanation and I am not wholly happy with his explanation. It seems to me that we ought to have on the Record as full an explanation as possible about whom these words apply to in connection with this clause. I know something about joint bodies that meet for this purpose. I know that in some cases they have other people meeting with them. Is it the case that the Government are thinking here in terms perhaps of lawyers, who clearly ought in the future to be present at every meeting of a joint negotiating body, having regard to the fact that so many of these agreements are going to be made legally enforceable? Is that what the noble Lord and the Government are up to?
Other persons who might be present are the Minister's conciliation officers, who ought to be present to advise negotiating bodies on the possible effects of their proposals for a decision or resolution, in view of the stultifying body of the law which will, with this Bill, surround negotiations which in the main are designed to ensure peace in the industry. It is precisely matters of this kind that I should like to ascertain—concerning conciliation officers of the Ministry; lawyers whose job it will be to ensure that matters are so framed that they would be suitable for a court of law. The noble Lord gave us some idea of the position, but not as complete an idea as I should like to have on the Record, because clearly this Record will be read in conjunction with the clause which is now being moved.
I believe I said at the outset that I had no objection to the new clause. In fact, it seemed to me to clear up some of the points that had been raised in the other place, and I certainly welcome the clause in so far as it does that. But I should like the noble Lord to tell me and the Committee a little more about the kind of persons who can be brought into these negotiations and who could be present when decisions are arrived at—which might indeed, as the noble Lord said, be awards as mentioned in a later clause. I beg to move
LORD DRUMALBYN: I do not think the noble Lord need have any great fears about the inclusion of these words, but I do not in the least complain of his moving an Amendment to ask what they are intended to cover. As I said when I introduced the clause, there is a variety of negotiating bodies at various levels, sometimes made up of representatives of various firms, sometimes various trade unions and so on; and at the lower level, of course, they can be at shop floor level, a mixture of trade unions and one employer or possibly a number of employers. There is a variety of arrangements. On some of these bodies there are added members; that is to say, those who do not directly represent the parties, but who can play a useful part either in decision making or in the resolution of disputes.
The proposed Amendment would reduce the effectiveness of the clause in carrying out that sort of intention. It would quite arbitrarily remove from the scope of these provisions all voluntary negotiating bodies which included among their members anyone additional to the representatives of the organisations of the workers and employers concerned. This would not take into account or provide for the wide variety of ways in which industrial relations decisions and agreements arc arrived at in this country. What is more, the criterion for exclusion would be totally unrelated to the purposes of the clause and would operate very unevenly and inequitably.
I should add that a number of joint industrial councils and other national negotiating bodies, as the noble Lord well knows, have made provision for the reference of unsettled disputes to independent arbitration by an individual or a joint panel. Where the body concerned consists of representatives of either side, it almost invariably has an added outsider, as well. Whether such a body would be covered would depend on the exist wording of the authorisation given so it and the agreement setting it up. Other bodies include independent members in the main council. For example, some joint industrial councils provide for an independent chairman or referee to assist them in the ordinary conduct of their affairs, And have power to resolve any matters en which the councl members may fail otherwise to agree. That, for example, is the case

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with the joint industrial council covering administrative, professional, technical and clerical staff in the local authorities. This is a practice of long standing which works well. The clause as originally drafted did not appear to cover this, and it was thought that it ought to be included to preserve the existing situation and to enable the decisions of these bodies, where appropriate, to have binding effect.
LORD CHAMPION: The noble Lord, Lord Drumalbyn, has met my request to expand a little on the actual words, and it seems to me that he has covered my points. However, I shall have to return on my next Amendment to something he said in his explanation when he referred to arbitration bodies. So far as this Amendment is concerned, as I say, the noble Lord has met my request and, in the circumstances, I beg leave to with-di aw the Amendment.
Amendment, by leave, withdrawn.
10.55 p.m.
LORD CHAMPION LORD CHAMPION moved, as an Amendment to the Amendment (No. 238RR):
Leave out subsection (3).
The noble Lord said: I must admit to some doubt as to what class of joint negotiating body the new clause in place of Clause 33 refers. When I first read it it seemed to me to be applicable only to the national or, at a lower level, regional negotiating bodies. Thinking of the industry I know best, the railway industry, I can relate the questions I wish to ask about this clause to the somewhat elaborate machinery of negotiation agreed for that industry. Starting at the top, there is the Railway Staffs National Tribunal, with a chairman appointed by agreement between the employers and the railway trade unions. Sitting with the chairman, not as assessors but as members of the tribunal, there are one person selected from a panel previously nominated by the railway employers and one person selected from a panel previously nominated by the railway trade unions. No member or officer of the British Transport Commission and no member or official of a railway trade union is eligible for appointment to the tribunal. Representatives of the parties.
164
it is true, may sit as assessors, if the tribunal so decides.
The tribunal in this case decides major matters of salaries, wages, hours of duty and other standards of service on references to it. That tribunal clearly does not consist of representatives of the railway trade unions, or of the British Transport Commission. It does, however, make awards and decisions. It looks to me—and I should like to have some confirmation of this—as though such awards and decisions would not fall within the terms of this clause, although the tribunal was established under a procedure agreement. Can I be told if that is so? And, incidentally, is there any clause in this Bill covering industrial awards other than the awards mentioned in Clause 123 which arise from a reference to the Industrial Arbitration Board by the Industrial Court? Below the tribunal there is the Railway Staffs National Council, which consists of eight representatives of the British Transport Commission and eight representatives of the railway trade unions. They have the same terms of reference as the tribunal I have mentioned. Clearly, I would think, the decisions of that Council would be caught up by this clause.
Passing over one Council, one national body whose functions are somewhat similar to the Railway Staffs National Council, we come to a number of councils established on a railway region basis. Each of these councils covers a group of grades. Their composition is rather different, in so far as on the one side there are representatives of British Railways—that is the B.T.C.—and on the other side representatives elected by the employees concerned. The representatives have to be members of a railway trade union, and the electors have to be members of a railway trade union; but because they are elected outside the trade union itself and by the employees as employees, rather than as members of the trade union, they are not directly representing the trade union. Therefore I wonder whether, in this case, they come within the terms of this clause. This is clearly a difficult point. I am sorry I was not able to give the noble Lord advance notice of the questions I am asking. If he cannot answer all these points to-night, I am sure he will do the usual thing, promise to write to me later

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and give me all this information. I am sorry, but I am one of those unfortunate individuals who have to do most things by hand. I have no secretary to type it out for me and send it to the Minister. Therefore, I am in some difficulty—and so perhaps will be the noble Lord in attempting to answer me on these points.
Next below this, at the very lowest scale of all, are what are called local departmental committees, set up at stations and depots where the staff numbers 50 or more. Local departmental committees are composed of not more than four members of the staff and not more than four representatives of the management. As in the case of the regional councils, the staff representatives are elected by the employees as such, not within the trade unions, but by trade unionists, and the nominees must be members of a trade union. This, of course, brings in a complication which must add to the difficulty of any noble Lord attempting to answer me. These local departmental committees consider and agree, if possible, such matters as arrangement of working hours, meal intervals, local rosters, holiday arrangements, tonnage bonus and piecework arrangements, questions of seniority where of local application, and arrangements for link working—and link working can be extremely important in a locomotive depot. On these and like matters these committees make decisions and issue minutes for perusal by staff concerned. Although the staff concerned are not directly representing the railway trade unions, they are nominated and elected by trade union members, but not within the machinery of the trade unions. Indeed, in many cases the nominee of one trade union will be contesting an election against the nominee of another trade union.
I hope the Committee will forgive me for putting these matters before it at some length. From such experience as I have had of the trade union movement, starting at the age of 15, and from my experience of reading Bills and Acts of Parliament, I frankly do not know the answers to the questions I have posed. I have not posed them just to be " plumb awk'ard ", but to elicit information on these points. Of the five parts of the procedure agreement covering the railway industry. I am fairly sure that two parts
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fall within the terms of Clause 33. I very much doubt if the topmost arbitration level falls within these terms, although its awards and decisions are of vital importance. I doubt whether, on a strict application of the clause, the two lowest levels of the machinery of negotiation, which certainly make decisions of importance to the staff concerned, fall within the terms of the clause. Taking the lowest level of all, the local departmental committees, if the staff representatives on them are helping to take legally enforceable decisions, they will also—and this is important— have to police those decisions under Clause 34.
The very fact that within a single industry, with well-tried and well-tested negotiating machinery, three important parts of that machinery seem to fall outside the framework of this Bill, and of this clause in particular, appears to me to point to the nonsense of trying to fit machinery of negotiation, which has grown up over decades and in some cases generations—of trial and error, and of adjustment to meet experience, appears to me as it difficult and sorry sort of thing to attempt. The Government would be well advised to drop this subsection, and this cause, for they are so faulty as to make them quite unworkable in the real world of industrial relations.
The final question I wish to ask in connection with this subsection is, do the Government really think that by conclusively presuming that decisions and awards of the sort of body here envisaged shall be legally enforceable contracts, they will encourage trade unions to be parties to setting them up and going to such bodies to settle disputes? That is the question that arises here.
The point that I stress is one o which my noble friend Lord Lloyd of Hampstead attached such importance on the previous clause. I am very much in favour of machinery of negotiation. If properly used it can bring order into wages and conditions. But if I were an active railway trade unionist to-day I doubt whether I should welcome setting up the sort of procedural arrangement to which: this subsection, indeed the whole of the clause, would apply. I realise that in the, course of my speech I have raised some very difficult points, and if the noble Lord cannot give me complete satisfaction I

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shall understand. I have explained why I was not able to give advance notice of everything I proposed to ask, and I shall be grateful for any reply that he may make in this connection. I beg to move.
11.6 p.m.
LORD DRUMALBYN: I am very grateful to the noble Lord for having explained so clearly to the Committee the doubts he had in mind here. Despite that clarity, I am bound to say that I feel I must avail myself of the suggestion that he made, and I should like to read what he had to say before I deal with this particular matter. It is complicated and it is difficult. We have already had to alter this subsection once before, and it may be, in the light of what he says, that we may have to alter it again—I do not know. I shall look at this point very carefully indeed, and if the noble Lord will permit me I shall refer to it at a later time. He has covered a number of particular industries and I would be extremely unwise to comment on any of them without knowing the details of the arrangements in those industries.
We think that the general proposal we have made in this clause will cover most cases—indeed all the cases that we have in mind where there are these mixed bodies or the straight joint negotiating committees—but we should like to look at this matter, and if we have any doubts we should like to avail ourselves of the noble Lord's particularly wide experience. and perhaps he would be willing to have a talk with us if necessary. In the circumstances, I hope that the noble Lord will agree to withdraw his Amendment.
LORD CHAMPION: That is the sort of undertaking that I hoped the noble Lord would give me. I accept it readily. I shall of course be happy to consult with him on these points of machinery of negotiation which I happen to know very well. I beg leave to withdraw the Amendment.
Amendment to Amendment, by leave, withdrawn.
LORD CHAMPION LORD CHAMPION moved as an Amendment to the Amendment (No. 238SS):
Subsection (4)(b), at end insert (" or
(c) is not the subject of a separate agreement in writing that such awards or decisions are not intended to be legally enforceable ")
The noble Lord said: We have in Amendments 238SS and 238TT two Amendments to the original Amendment which seem to me to run together. The purpose of these Amendments is, I hope, fairly clear. It is that the terms of Clause 33 shall be in such a form as will enable the bodies we are here discussing to embody, in the procedural agreements under which they are set up, the possibility of opting out of the intention to make legally binding awards. That is to say, that it can be a pre-condition of the setting up of such bodies that there shall be agreement between the parties that the awards or decisions made shall not be binding on the parties.
I am sure the point I am driving at will be understandable if noble Lords will read subsection (3). I do not propose to read it out, because I imagine that most noble Lords who take any interest at all in this matter will have read it. If the new paragraph (c) which I am proposing is inserted it seems to me that, on an individual reference to such a body, in the terms of the reference an agreement in writing by the parties to the reference would enable the body to make an award which would not be legally enforceable. It would also be possible, under my Amendment, for the parties to the original procedure agreement to specify that none of the awards or decisions of that body would be legally enforceable.
In this connection, in the other place there was a considerable discussion on the clause which we propose now to pull out of the Bill—and the terms of the clause which the noble Lord is moving into the Bill are exactly the same in this respect. This was discussed at some length, and indeed it was one of the few clauses that were discussed at reasonable length in the other place. The discussion took place on an Amendment similar to the one we are here discussing, and when replying for the Government the Solicitor General said:
" The honourable and learned Member for Leith has advanced a legitimate argument. I do not want in any sense to mislead the Committee or appear to be saying that something means other than it does. He suggested that it would not he sufficient to include a general disclaimer because, as so recorded, such a disclaimer would have to be included each time. If that is the proper interpretation within the clause, that is not the intention of the Government, and I certainly undertake to make

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it plain that that is not the intention. It is an important point, and I recognise that there is room for doubt."
That is the Solicitor General, who I understand is very much the author of this Bill. He was in doubt about this. The clause has not been altered in this particular by the clause which the noble Lord, Lord Drumalbyn, is here moving into the Bill. I am bound to say it seems extraordinary to me that such an undertaking, given without the reservations which Ministers so often attach to such an undertaking, should not have been honoured in the substitute clause we are now considering. Perhaps the noble Lord, Lord Drumalbyn, would care to explain.
As far as the Amendments that I am proposing are concerned, I am not absolutely sure that I have got either their placing or their wording right, but I think the intention must be fairly clear; and if the Government are prepared to accept the principle embodied in the Amendments I shall be happy to withdraw the one and not to move I he other—leaving it to the Parliamentary draftsmen to make a better job of it. However, I think the Government owe it to the House to explain what the Solicitor General said in the other place, and to explain to the House why the undertaking which he so clearly gave has not found expression in the clause which the noble Lord, Lord Drumalbyn, moved. I beg to move.
11.15 p.m.
LORD DRUMALBYN: The noble Lord has referred to what was said in another place, and of course the clause was put down after consideration of what had been said there. The provisions of the clause have been attacked on the grounds that they are a threat to good relations on the shop floor. It has been alleged that they extend the Bill's presumptions regarding legal enforceability into a multiplicity of agreements at different levels, including the very lowest where hundreds of agreements about piecework prices and manning scales are reached every week quite informally between shop stewards, on the one hand, and rate fixers or foremen on the other. It has been claimed that the effects of these enforceability provisions would be disastrous in that they would frighten off shop stewards from settling any issue on the spot and in many cases even from acting as shop stewards at all. It was also suggested
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that the clause would put an end to productivity bargaining and enormously increase time lost through stoppages, because even the smallest points of disagreement would have to wait for settlement by the works committee. Further allegations were made in another -place that the provisions would thus destroy the harmonious functioning of the words committee system, giving rise to endless arguments about whether or not to include a disclaimer provision which might devalue the status of the agreement reached; there would be unintended further damage to industrial relations should an appropriate disclaimer ever be inadvertently omitted— -something all too likely to happen in view of the level at which so many of the settlements would be reached.
The clause has also been attacked as altering the existing voluntary character of collective bargaining in that by reason of subsection (1) the two sides of joint negotiating bodies would no longer be free to decide for themselves whether or not to delegate to subordinate committees authority to enter into legally enforceable contracts these subordinate committees would necessarily be making legally binding agreements unless a disclaimer were included in each and every agreement. I think this is a point that the noble Lord particularly asked about. I think the answer to this is that the majority of shop floor and departmental settlements are not written agreements. In consequence, none of the Bill's presumptions about enforceability would apply to them. To that extent therefore the likely effect on shop stewards, productivity deals, time lost and the works committee system has been very much overstated.
In practice, moreover, the significance of the remaining arguments can also be questioned. One of the effects of Clause 33 would be that any joint body to which its provisions applied, from the largest to the smallest, would in practice have to consider at the outset what kind of settlements—in terms of legal status—-it would reach. Many would take a once-for-all decision on this. A works council, for example, might record a decision to the effect that awards and decisions made by the council were not intended to be legally binding. Though such a decision would not obviate the requirement to include an appropriate disclaimer in recording each subsequent decision of the

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council, the fact that it had been reached in the first place would effectively remove the danger of arguments arising afresh about the legal status of each and every subsequent settlement. One beneficial effect of the clause (and of Clause 32) if they impel people to say, " We do not want to attach legal force in this kind of way ", could well be to encourage voluntary arbitration procedures for resolving disagreements.
It has to be recognised that for only a very small fraction of settlements reached throughout industry would any question of testing the Bill's presumptions under these clauses ever arise, whether the settlement contained an expressed disclaimer or not. Most of the very numerous day-to-day decisions reached by collective bargaining are about substantive matters which not only involve changes in terms and conditions on the trade union side but also are, in many cases, probably enforceable as things stand at present; action based on breaches of individual contracts of employment as the noble Lord knows, would be a way in which they would be enforceable.
It is also fair to point that settlements reached at lower levels, where the parties are more prone inadvertently to fail to consider the question of rebutting the Bill's presumptions, are those most likely to fall short in other repects, too; so that the courts might perhaps be forced to pronounce that the agreement, or the settlement, was void for uncertainty. We have already dwelt at length on the reasons which led the Government to include in the Bill these provisions on the legal status of collective agreements. We remain convinced that they will encourage moves to improve the quality of our collective agreements, to secure that they are more generally and consistently observed. I commend these advantages to the Committee as far outweighing the drawbacks which could arise, although, as I have said, I think that the drawbacks the noble Lord indicated are very much overstated.
LORD CHAMPION: The noble Lord, when referring to negotiations which take place at a very low level, said that the
decisions are not published. From what I know of them they are. In most negotiations the minutes of the meetings are agreed and published, and are read by people whom they would effect. I would have thought that even at that level they would be caught by the provisions of this clause. I understood the noble Lord, Lord Drumalbyn, to say that they could take a once-and-for-all decision that their decisions would not be legally enforceable.
LORD DRUMALBYN: That is right, they can take that decision; and then they would themselves, as each decision came along, indicate that it would not be binding. That would have to be repeated each time.
LORD CHAMPION: Does that not make a nonsense? They are going to take a once for all decision and then. on every decision made subsequently, they will include words saying, " This is not a legally enforceable agreement." Surely we ought to have what the Solicitor-General so clearly indicated in his reply in another place, that it would be possible in such circumstances for each body to say, " Our decisions will not be legally enforceable, unless we so decide." They could turn it that way so that they would take the sort of decision to make a matter legally enforceable only after carefully considering it. and its implications. I do not feel satisfied with the noble Lord's reply. The fact is that a statement was made in another place on a matter which was raised there and I feel that we must attach some importance to it. I would have liked to avoid a Division on this, but having regard to the fact that the noble Lord has not satisfied me at all, and he could not have satisfied those people in the other place who heard the Solicitor-General make his declaration, I cannot withdraw the Amendment, and 1 shall have to ask the Committee to divide.
11.24 p.m.
On Question, Whether the said Amendment to the Amendment' (No. 238SS) shall be agreed to?
Their Lordships divided: Contents, 19; Not-Contents, 83.

CONTENTS

Ardwick, L.

Brockway, L.

Collison, L.

Bernstein, L.

Brown, L.

Davies of Leek, L.

Beswick, L.

Champion, L.

Delacourt-Smith, L.

Diamond, L.

Shackleton, L.

Wells-Pestell, L.

Donaldson of Kingsbridge, L.

Shepherd, L.

White. Bs.

Garnsworthy, L. [Teller.]

Strabolgi, L. [Teller.]

Wynne-Jones, L.

St. Davids, V.

NOT-CONTENTS

Aberdare, L.

Drumalbyn, L.

Merthyr, L.

Alexander of Tunis, E.

Dudley, E.

Milverton, L.

Allerton, L.

Elliot of Harwood, Bs.

Mowbray and Stourton, L.

Amherst, E.

Emmet of Amberley, Bs.

Nugent of Guildfoid, L.

Amory, V.

Essex, E.

Poole, L.

Balfour, E.

Exeter, M.

Rankeillour, L.

Beauchamp, E.

Ferrers, E.

Redesdale, L.

Beaumont of Whitley, L.

Fortescue, E.

Redmayne, L.

Belstead, L.

Gisborough, L.

Reigate, L.

Berkeley, Bs.

Glendevon, L.

Rothermere, V.

Brabazon of Tara. L.

Goschen, V. [Teller.]

Ruthven of Freeland, Ly.,

Bridgeman, V.

Gowrie, E. [Teller.]

St. Aldwyn, E.

Brooke of Cumnor, L.

Gray, L.

St. Just, L.

Brooke of Ystradfcllte, Bs.

Hailes, L.

St. Oswald, L.

Burton. L.

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

Sandford, L.

Caldecote. V.

Savile, L.

Carrington, L.

Harvey of Prestbury, L.

Selkirk. E.

Chelmer, L.

Inglewood, L.

Strange, L.

Coleraine, L.

Jellicoe, E. (L. Privy Seal.)

Sinclair of Cleeve, L.

Colville of Culross, V.

Kemsley, V.

Thorneycroft, L.

Cottesloe. L.

Killearn, L.

Thurso. V.

Cowley, E.

Kilmany, L.

Tweedsmuir, L.

Cranbrook, E.

Kinnoull. E.

Tweedsmuir of Belhelvie, Bs.

Crawshaw, L.

Lothian, M.

Vivian, L.

Cullen of Ashbourne, L.

Lucas of Chilworth, L.

Wakefield of Kendal, L.

Davidson, V.

Luke, L.

Westminster, D.

Denham, L.

Lyell, L.

Wigram, L.

Digby, L.

Margadale, L.

Windlesham, L.

Resolved in the negative, Amendment to Amendment disagreed to accordingly.
11.32 p.m.
LORD CHAMPION: We now decide whether this new clause—Amendment No. 238NN—shall be moved into the Bill. We have had a considerable discussion on it but we must clear up some ambiguities on which I am far from being clear or which remain in the Bill and make it less than clear to me. In discussion of subsection (3) of the new clause I hope I made clear that as drafted it might catch not only the parties which negotiate terms and conditions of employment of workers at national level but also at the workshop depot or station level in those cases where the procedure makes provision for such negotiation. The more one looks at that sort of situation, the more one is bound to see the nonsense of such lowly bodies making decisions, recorded in writing and therefore legally enforceable contracts, and attracting the penalties implicit in any breach of them as provided for in Clause 34.
This Clause 33 is one of the very few clauses discussed in the other place, and I turn to the proceedings for February 1
174
to try to discover what sort of bodies the Government were trying to catch by this clause. At column (386 of the OFFICIAL REPORT for that day I see that the Solicitor General said:
"The clause retains and deserves to retain its place in the Bill, because it is plain that substantial and important collective agreements are arrived at in certain cases by substantial national joint bodies. The Government's view is clear: that those bodies in that kind of negotiation should be subject to the same alteration in bias, so that normally the parties in such negotiation are regarded, unless they provide to the contrary, as intending to set up obligations by which they intend to be bound. That is the primary objective of the clause."
After a few words about not wishing to catch the shop stewards private committee—and it appeared to me never to have been suggested that such a self-contained committee might be so called—he continued:
" Given the importance of the intention to apply this presumption to the large national body hammering out the importance national agreement, my right hon. Friend and I will certainly look at this again to see whether there is any possibility of it extending too far, too widely, or too obtrusively."—[OFFICIAL REPORT, Commons, 1/2/71, col. 1316–871

175
Having given an undertaking in such unequivocal terms, I suppose the right honourable gentleman did give it further consideration. I can only conclude that he still found that the clause expressed his intention, for no amendment to the clause has been put down by the noble Lord, Lord Drumalbyn, on this point. My legal knowledge is nil, but my knowledge of and training in the trade unions are fairly extensive. If one reads subsection (1) of the clause, however one construes the words that appear in that clause, one is bound to agree that they would apply to anybody, no matter how lowly in the scale, provided for in a procedure agreement, and such body having for terms of reference those set out in subsection (1)(a) and (b).
If the Government really want to catch by this clause the large, national body hammering out the important national agreement—again to use the words of the Solicitor General—I suggest that the Government continue with their proposals to leave out Clause 33 and insert the new clause, but to give a clear undertaking to the Committee to introduce amendments at the Report stage clarifying the clause by giving effect to the undertaking given by the Solicitor General about the general disclaimers in subsection (4); and also to amend the clause in such a way as to make it clear that the clause will apply only to substantial national joint bodies —again, the words of the Solicitor General.
If the noble Lord is not prepared to give that undertaking clearly, and without equivocation, I shall have no alternative but to ask the Committee to divide in protest against what appears to me to be a clear breach by the Government of undertakings given by a responsible Minister. That applied in the Amendment I moved. Those words also apply to the clause itself, and I hope that the Government, for the sake of the honour of the Solicitor General, will be able to tell us that they propose to ensure that the words he used in the other place find expression in this clause before it leaves this Committee.
LORD DRUMALBYN: I think the noble Lord, Lord Champion, is under some misapprehension about this. What he is quoting, if my recollection is correct, is what the right hon. Gentleman
176
said on the Committee stage, and there was a further debate on the Report stage. My right hon. Friend there explained very fully that the Government had concluded that a general disclaimer provision which applied to the bodies referred to in Clause 33 would not be either tight or desirable. I think the noble Lord is going a little far in saying that we are failing to give effect to something which was said at the first stage before, no doubt, my right honourable friend had had time to consider this matter, in view of what he did say on the Report stage. There is no reason whatsoever why we should not reconsider this, but I feel that the noble Lord is treating my right honourable friend with rather less than due respect by not taking account of what he said on the Report stage.
The Government have reached a decision on this. We shall take account of what the noble Lord has said. I certainly cannot make any promise that we shall change what was obviously a considered decision that my right honourable friend announced on Report stage. Of course discussion would be meaningless in this place if we did not take account of what has been said. I do not think that the noble Lord has encouraged us to regard this very much more favourably by the rather stern line he has taken in this matter, in a rather misplaced manner.
11.41 p.m.
VISCOUNT AMORY: I should only like to say that, after hearing what my noble friend has said, I cannot think that the noble Lord, Lord Champion, will want to press the complaint he made about the conduct of the right honourable gentleman, the Solicitor General. Having said that, I have some slight sympathy with the view he put that it seems a little cumbersome to have a separate disclaimer for every single agreement made at a very low level. I would hope that my noble friend would just think as to whether there is any other way of avoiding what I think seems to be a rather cumbersome procedure.
LORD CHAMPION: If I said something which I ought not to have said in the circumstances, I apologise to the Committee and to the Solicitor General. The noble Lord, Lord Drumalbyn, again mentioned the point of the general disclaimer. I was on that point in the Amendment.

177
I am not here on the point of the general disclaimer; the point I am talking about here, and that the Solicitor General was talking about in the other place, was where this part of the clause refers to these joint negotiating bodies, and what part of those bodies will attract this clause and how far down. He talked here about the substantial national joint bodies; these are the ones that he wishes to catch, not the others. As I see it, this clause will go right down through the whole of the machinery from the top to the bottom—the bottom particularly—if they make decisions and awards. I certainly was not on the point of the general disclaimer when I was talking about the clause as a whole, but on this point as to whether the national body will be caught by it, or whether the local departmental committees that I talked about in relation to the railway industry would also be caught by it. This was the point I was putting to the noble Lord. This was the point upon which I was quoting the Solicitor General. If he said something about this on Report, I did not happen to spot it, and.I read fairly thoroughly those debates that occurred in the other place on the clauses for which I happen to have some responsibility.
I invite the noble Lord to look at this point. I do not want to do the Solicitor General an injustice; but, on the other hand, I want undertakings which I thought he gave in the other place to find their expression in the Bill that we have before us.
LORD DRUMALBYN: I shall of course be very glad to respond to what the noble Lord has said. It is worth pointing out that these subordinate to bodies can act only within the authority which is conferred upon them. This may mean that the parent body can modify the authority which it delegates so that the subordinate body may only formulate recommendations which do not have the status of decisions and shall not be acted upon without prior ratification or confirmation at some specified higher level. This was the way in which we foresaw this difficulty being overcome; but, as the noble Lord has said, I am quite prepared to look at this again.
11.45 p.m.
On Question, Whether the said Amendment (No. 283NN) shall be agreed to?
Their Lordships divided: Contents, 82; Not-Contents, 19.

CONTENTS

Aberdare, L.

Eccles, V.

Mowbray and Stourten, L.

Alexander of Tunis, E.

Elliot of Harwood. Bs.

Nugent of Guildford, L.

Allerton, L.

Emmet of Amberley, Bs.

Poole, L.

Amherst, E.

Essex, E.

Rankeillour. L.

Amory, V.

Exeter, M.

Redesdale, L.

Balfour, E.

Ferrers, E.

Redmayne, L.

Barrington, V.

Fortescue, E.

Reigate, L.

Beauchamp, E.

Gisborough, L.

Rothermere, V.

Belstead, L.

Glendevon, L.

Ruthven of Freeland, Ly.

Berkeley, Bs.

Goschen, V. [Teller.]

St. Aldwyn, E.

Brabazon of Tara, L.

Gowrie, E.

St. Just, L.

Bridgeman, V.

Gray, L.

St. Oswald, L.

Brooke of Cumnor, L.

Hailes, L.

Sandford, L.

Brooke of Ystradfellte, Bs.

Hailsham of Saint Marylebone, (L. Chancellor.)

Savile, L.

Burton, L.

Selkirk, E.

Carrington, L.

Harvey of Prestbury, L.

Sinclair of Cleeve, L.

Chelmer, L.

lnglewood, L.

Somers, L.

Coleraine, L.

Jellicoe, E. (L. Privy Seal.)

Strange, L.

Colville of Culross, V.

Kemsley, V.

Terrington, L.

Cottesloe, L.

Killearn, L.

Thorneycroft, L.

Cowley, E.

Kilmany, L.

Tweedsmuir, L.

Cranbrook, E.

Lothian. M.

Tweedsmuir of Belhelvie, Bs

Cullen of Ashbourne, L.

Lucas of Chilworth, L.

Vivian, L.

Davidson, V.

Luke, L.

Wakefield of Kendal, L.

Denham, L. [Teller.]

Lyell, L.

Westminster, D.

Digby, L.

Margadale, L.

Wigram, L.

Drumalbyn, L.

Merthyr. L.

Windlesham, L.

Dudley. E.

Milverton. L.

NOT-CONTENTS

Ardwick, L.

Brown, L.

Davies of Leek, L.

Bernstein, L.

Champion, L.

Delacourt-Smith, L.

Beswick, L.

Collison, L.

Diamond, L.

Donaldson of Kingsbridge, L.

Shackleton, L.

Wells-Pestell L.

Strabolgi, L. [Teller.]

Shepherd L.

White, Bs.

Hoy, L.

Strabaolgi, L. [Teller.]

Wynne-Jones, L.

St. Davids, V.

Resolved in the affirmative, and Amendment agreed to accordingly.
Clause 34 [Breach of collective agreement]:
11.49 p.m.
LORD BROWN LORD BROWN moved Amendment No. 238N.
Page 26, line 34, after (" agreement ") insert (" made after the commencement of this Act ")
The noble Lord said: This is a very simple, almost verbal Amendment. Where the clause refers to a collective agreement, it changes it to " a collective agreement made after the commencement of this Act ". This conditioning of the term " collective agreement " has occurred at other points in the Bill already, and it would almost seem to have been an omission not to have included it at this point. Otherwise, the term " collective agreement " might presumably refer to agreements made prior to this Bill becoming an Act. Therefore it seems that this form of words should be inserted. I beg to move.
LORD BELSTEAD: In answer to the noble Lord, Lord Brown, the intention is as he divined, and is quite simple. It is that the Government seek to protect any legally enforceable agreement from being broken by any of the parties. It is to apply whether an agreement was made before or after the enactment of the Bill. There are some collective agreements now in existence which the parties believe are legally enforceable. They may be few; but while the belief is held we see no justification for ignoring this belief. It may well be that occasion will never arise for bringing any of these agreements to the Court, and of course everyone hopes that this will be so. Again, we cannot prejudge the view the Courts might take when the status of agreements of this sort are tested. However, I would repeat that we think it sensible and just that the Bill should take into account these existing agreements which the parties intended and believed to be legally enforceable.
Under the present law, enforcement of such agreements may be sought only through the ordinary courts, and by means of Clause 125 we shall provide that
180
jurisdiction in cases arising wholly or mainly on collective agreements should be transferred to the National Industrial Relations Court. By means of Clause 34(1) a breach by any of the parties of any existing or future legally enforceable collective agreement will become actionable before the Industrial Court. To remove a breach of any existing legally enforceable agreements from the jurisdiction of the Industrial Court would leave those agreements actionable nowhere at all; and this I suggest to noble Lords opposite would be retrospective legislation, which the Government have promised they would avoid in this Bill.
At the same time, we see difficulty, which the noble Lord, Lord Brown, has not referred to, in not transferring jurisdiction of these cases to the Industrial Court. As the Donovan Report records. our collective bargaining systems are fragmented, overlapping and piecemeal. and there could well be cases arising after the commencement of the Act which involved a pre-enactment agreement which had been amended or otherwise qualified by a post-enactment one. In these circumstances, divided jurisdictions could greatly, and unnecessarily, increase the complexity and duration of the case, and of course the cost.
There is one small point which I think your Lordships would want referred to before I sit down. Fears have been expressed about the consequences of the proposal in this Bill for the repeal of Section 4(4) of the Trade Union Act 1871. Particular concern has been centred in another place upon a risk that the repeal could render legally enforceable some existing collective agreements between employers' associations and trade unions. The Government believed the risk was slight. But though slight, the risk was recognised. and the Government undertook to ensure that it was taken away. I am taking this opportunity to point out that this is the reason for the amendment to Clause 101—Amendment No. 267A—which stands in the name of my noble friend Lord Drumalbyn, which it would not be in order for me to discuss in detail now. I have tried in that rather long reply to a very brief speech moving

181
this Amendment to give explanations and assurances which I hope may lead your Lordships to reject this Amendment.
11.58 p.m.
LORD BROWN: I must say, while thanking the noble Lord for that reply, that it was extremely confusing. I think the Government must have another look at this question, on these simple grounds. I quite understand the noble Lord's objection to the Amendment as worded, because it would imply that agreements which both parties had agreed were legally enforceable before this Bill came into existence might be deemed not to be legally enforceable by the words of the Amendment. I take that point from the noble Lord. But, on the other hand, if the Amendment is not adopted, then provisions in this Bill may turn what was thought prior to the existence of this Bill to be an unenforceable legal agreement into an enforceable legal agreement.
This of course would be retrospective legislation in the true sense of the term, because it would alter the meaning of an agreement made prior to this Bill. That, I am sure, the Government do not want to bring about. So if this Amendment is not put in you are in danger of having something retrospectively altered in a previous agreement; and if you do put it in it will mean that agreements which were previously legally enforceable will not be able to be legally enforceable. So I think the Government had better take a look at the situation in which their wording places them. While respecting their inability to accept the Amendment that I have moved, it does not mean that the Bill, as it stands, is right.
THE LORD CHANCELLOR: Perhaps I can reassure the noble Lord on the last point that he made. He has taken up one point which I think was the only point strictly material to the Amendment that my noble friend made, namely, that there may be a limited class of preexisting agreements or existing agreements which are enforceable. He has accepted that point. He then goes on to say that if the Amendment is not made some agreement which is already existing, but which is not enforceable, might he rendered enforceable by this Bill. This I can reassure him about unequivocally, because under Clause 32 (1) (a) he will see that the only agreements rendered enforceable under that clause (which is the
182
operative clause) are those made in writing after the commencement of this Act. So that the thing is not retrospective, and is not capable of retrospection so far as Clause 32 is concerned. We have already discussed Clause 33, which raises a quite different point. The point that the noble Lord was making in his last utterance is one about which I can give him an unqualified assurance.
LORD BROWN: In the light of that assurance, I beg leave to will-draw the Amendment.
Amendment, by leave, withdrawn.
12.2 a.m
Lotto CHAMPION Lotto CHAMPION moved Amendment No. 238P:
Page 26. line 40, leave out subsection (2).
The noble Lord said: This subsection is at the very heart of this clause, and the preceding clauses were obviously intended to lead up to it. First, it seemed to me that the Government were determined to make as many collective agreements legally enforceable contracts as they could hope to get away with. I am sure they must have hated the fact that practical politics made it necessary to include the words which permit a party to contract out of making a legally enforceable collective agreement. Secondly, the whole idea of this subsection, and what has preceded it in Clauses 32 and 33, has been somehow to try to shift the burden of securing some greater degree of industrial discipline from the managers of industry on to the trade union leaders. That is what it is all about, and it simply will not work.
The subsection imports the new phrase " unfair industrial practice ", and one has to dig deeply into this Bill as a whole to discover the penalties which may be imposed on any party or person which or who commits an unfair industrial practice. For the purposes of the Record, I should be grateful if the noble Lord. when he comes to reply, will tell u: who is likely to be the complainant in an alleged breach of a collective en 7orceable agreement taken to the Industrial Court under Clause 97, which I believe is the clause to which the noble and learned Lord referred in our previous discussions.
A further question that I must ask is: who is likely to be the complainant in a

183
complaint that a party to such an agreement has not taken all such steps as are reasonably practicable to carry out paragraphs (a), (b) and (c) of subsection (2)? In Clause 97(3) we are told that the remedies which may be granted are:

" (a) an order determining the rights of the complainant and of the respondent in relation to the action specified in the complaint:

(b) an award of compensation, to be paid by the respondent to the complainant, in respect of that action;"

(c) an order directing the respondent to refrain from continuing to take that action …"

I suppose I may take it that the amount of compensation will be within the limit set out in the Bill. Would the penalty attracted by a failure to obey an order to refrain from continuing to take that action be the penalty that contempt of court would normally attract in a court of law? And what would be the limit of that?
What does the subsection say, in addition to the words about unfair industrial practice? It says that any party to a legally enforceable collective agreement must
"take all such steps as are reasonably practicable for the purposes—
(a) of preventing persons acting or purporting to act on behalf of that party from taking any action in breach of the collective agreement…"
I must admit that I do not find the words " reasonably practicable " worrying. If as a magistrate I had in a given case to decide what in the circumstances was a reasonably practicable action to take, I think I could manage to do so. The words I do not like, however, are " preventing persons acting or purporting to act ". If an agreement is signed by a trade union leader with the full authority of his office, knowing, as he will from now on, that it is a legally enforceable agreement, he must, in my opinion, do everything in his power to see that it is carried out in its entirety. That is all right. But that is an entirely different thing from saying that that trade union leader and the union must accept responsibility for the behaviour of every member of that union and everyone who might purport to act on its behalf. As I see it the trade union leader under this subsection might be held to be guilty and responsible for all other persons who
184
might be so misguided as to take an action in breach of the agreement. It is a concept which is abhorent to the trade union movement.
Moreover, I believe that it is impracticable. I believe that Donovan was right when he said in his Report at paragraph 122:
"Consequently, it is not surprising if from time to time groups of trade union members protest that industry-wide agreements are not to their liking, and even indulge in mutinous strikes. But such strikes are relatively rare. The great majority of unofficial strikes have nothing to do with industry-wide agreements. It is a mistake therefore to suppose that the shift of power to the work group could have been presented by a more ready exercise of disciplinary powers by trade union leaders. Even if successful, this could do little to halt the transfer of authority from management to the work group. And it is unlikely that it would be successful. Trade union leaders do exercise discipline from time to time, but they cannot be industry's policemen. They are democratic leaders in organisations in which the seat of power has almost always been close to the members."
I quote that paragraph because it makes good sense and it is in line with all the experience of the trade unions at all levels.
As I see it, this clause is one in which the penalties are there; the words that would try to import something into trade union practice which is quite foreign to its nature and character are there. But the will and the machinery to enforce it will never exist. For who is going to commence an action under this clause? Will the Secretary of State, whose whole desire on behalf of his Government and the nation is industrial peace? Will the employer, whose desire is peace within his industry? In this connection, look at the recent breaches of contract and see how many employers have brought actions for damages. Can any one of the bodies to be set up under this Bill commence an action; and if it can, will it? I think not. The whole thing is an elaborate pretence; it is a facade. It is a facade, designed to satisfy those who quite mistakenly think that if a law is passed the problem is solved. It is not, as all past experience of laws which cannot be enforced has proved. I suggest that the Government face up to what for them is bound to be an unpleasant fact and drop the whole idea embodied in this subsection and in this clause. I beg to move.
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD MERTHYR): May I remind the Committee that if this Amendment is agreed to, the next one cannot be called.
12.10 a.m.
THE LORD CHANCELLOR: I wonder if I may be allowed to answer one or two questions. My noble friend Lord Drumalbyn will wish to reply as the debate proceeds, but the noble Lord, Lord Champion, asked one or two questions, which are quite outside the Amendment, questions of policy, or at any rate only related to it tangentially, and I will try to answer them so far as they are capable of answer. The first question was: who would be a party to the proceedings against either party to the agreement who were guilty of an unfair industrial practice under Clause 34? I think that the answer is to be found again in Clause 97. Obviously, it is only a party to the agreement who would be able to invoke the agreement in the ordinary course. Clause 97(1)(c) lays down that the complainant must be the person against whom the action complained of is taken. I think that is the proper reply to the noble Lord as regards that.
The next question related to the remedies available, which are set out in Clause 97(3). The first is a declaration of right. My own feeling about this, though I may be wrong, is that this is by very much the first and most important subsection of all. On the whole, when a court has laid down what the rights of parties are, most reasonable parties tend to accept that as the award, and abide by it. I should expect either an employer or a union who were parties to an enforceable agreement to be content with a declaration of right in the ordinary course, without perhaps pursuing their other remedies. The third question was on the award of compensation. The noble Lord asked to be confirmed in his view that in respect of a registered union the ceilings would apply to the award of compensation under paragraph (b), which is perfectly correct.
He asked about penalties for contempt. The noble Lord was jumping there before we got to the fence. Before there can be any penalty there must be an order of the court under subsection (3)(c),
186
ordering a respondent to retrain from continuing to take action, or to take any other action of a like nature. I do not want to go into the technicalities, but clearly there can be no penalty for contempt until such an order is made. That would not arise simply because you have committed an unfair industrial practice or broken an agreement. It could only arise if an order of that kind were made.
May I explain in brief terms here, because we may have to return to it later, that the court has a discretion. In the ordinary course it would be expected to exercise a discretion on the same lines as it exercises its jurisdiction to grant an injunction at the moment. In other words, it never orders a party either to do or to refrain from doing something which it is not in his power to do. The best endeavours clause applies to the original breach, but the injunction would have to tell the party either to do or refrain from doing some specific act which was in its power. You cannot be guilty of a contempt if you are asked to do something which is either impossible or outside your power to do. That would be the next stage.
Thirdly, the penalties for contempt would never be incurred unless the party had deliberately disobeyed the court. Mere accidental failure to comply with an order of the court would not incur penalties for contempt. Subject to that, in the last resort penalties may be a fine or imprisonment if all those fences have been jumped.
There is only one thing I would like to say of a technical nature before the debate continues on policy matters, to which my noble Friend will reply. I think the noble Lord was mistaken when he referred continually to the personal position of a trade union official on this matter. The party to an agreement of the kind we are discussing would be the employer or employers' association on the one hand, and the trade union or group of trade unions on the other, although, of course, an individual who was made subject to an order of the court in some way or another might be rendering himself liable to penalties for contempt. In that event, I would take it, in the case of a registered trade union, that the union would be responsible rather than the official who was not a party to the agreement.

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It is, of course, possible to introduce legal doctrines whereby a trade union official might render himself liable, but in the first place you would have to regard the union as the principal party to the proceedings. I make that last observation subject to correction. I have only considered it since the noble Lord was making his speech. I think I am probably right about that, and I feel considerable confidence about the other things I was saying.
LORD BROWN: I find subsection (2) of this clause extraordinarily objectionable, and I therefore support the Amendment before the Committee. It seems to me that under this subsection managers or perhaps trade unions are being held guilty of unfair practices if they are guilty of acts of remission; or, to put it another way, guilty of sub-standard judgment in failing to interfere, as they ought to do, or guilty of failure to take intiatives. This seems to me, although I am not learned in law, as being a very unwise principle to introduce into a Bill of this kind. I was under the impression —subject to correction—that if an individual sees somebody drowning in a pond he is not guilty in law if he does not rush to try and save him. It is true that in a number of Acts in connection with railways, public transport and aircraft one is guilty at times for acts of omission, but these are special cases which are felt to endanger life.
Here we introduce the principle that if a manager or a union—I am accepting the noble Lord and Lord Chancellor's admission of the union official—fails to take the initiative in taking all such steps as are reasonably practical then he is guilty of unfair industrial practice. This is going to be—I say with the utmost sincerity one of the most unworkable clauses in this Bill. I think it will cause more dissension. It is going to be an extraordinarily difficult thing for anyone to come to a conclusion—and I am referring to the courts—on whether, in taking this initiative they took sufficient initiative, whether they ought to have done more, or ought to have done anything: a whole series of "oughts"—not sins of commission with which the law usually has to deal, but sins of omission. I believe this subsection and the following subsection ought to be looked
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at extraordinarily carefully by the Government. I fear they are running them-themselves into a position of extraordinary difficulty by this subsection. I therefore support the Amendment.
LORD DAVIES or LEEK: I would like to add my voice in support of this Amendment too. This part of Clause 34 obliges a union which has made a legally binding contract to take " all reasonable and practicable steps " to prevent its members from breaking such an agreement. Again, we have something which is very difficult to prove, as the noble Lord has indicated over the drowning incident. This clause, as my noble friend said from the Front Benches—and this was mentioned in the other place—would compel unions to act as policemen against their members and to use the powers of fining and expulsion in their rule books. When Mr. Carr. in another place, was tackled about this, he replied that the court would decide what was reasonably practicable, and when challenged on the fact that the Conservatives expected unions to fine or expel members, he alleged on February 2, in Col. 1486, that it was all nonsense.
But is it? At that time Mr. Paul Rose replied, from evidence given to the Donovan Commission by the Solicitor General, on behalf of the Conservative lawyers; when asked what a union should do about its members who were breaking an agreement, he said " I think one of the things the union would have to show was that it was intending to suspend or expel them." We are getting nowhere on this. All this is doing is to undermine some very efficient bargaining machinery that has worked wonderfully well through some very difficult periods. Although the hours is late, I do sincerely hope that this clause will not be rushed and that the Government, because we have made such progress, will give us time another day to discuss this in depth and without bitterness or asperity, so that we can get to the core of this and make it worth while.
LORD BERNSTEIN: May I ask a question, because I support this Amendment? If a spokesman for a militant minority starts a strike, or even a go-slow, and in doing so says he is doing it on behalf of the union, if the union could be held responsible for securing that the trouble

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is not continued, how could it deal with this situation? It seems to me that there is nothing in here which will protect the union from a militant who might intend to disrupt it.
THE LORD CHANCELLOR: The answer to that is a simple one: the union is constantly faced with militants now and does its best to control them. Under this clause it will continue to be expected to do its best: but if a militant is acting in defiance of the union he may, of course, find himself in trouble over an unfair industrial practice, but it does not necessarily involve the union if it has acted in good faith, in accordance with the clause.
LORD CHAMPION: I do not want to stop the noble Lord, Lord Drumalbyn, from replying to the general points I made. I am grateful to the noble and learned Lord the Lord Chancellor for the explanation he gave. I did not hear him replying to the point I made about purporting to act. It is true that that really is high-lighted in the next Amendment, but I was not proposing to move that if the noble Lord had given me an answer which I could have regarded as a reasonable explanation in the circumstances.
The other pointer I was referring to was in connection with who takes a complaint to the Industrial Court. I had read Clause 97, and the application of that. The point I was on was not so much who would in law be permitted to take the complaint to that Court, but who in fact would enforce it in the circumstances of the difficulties which it would bring to any industry where you found an employer doing it or anyone else attempting to secure satisfaction under this Bill. If the noble Lord would reply to the point about " purporting to act ", that would he extremely helpful to me and to the Committee.
12.25 a.m.
LORD DRUMALBYN: I shall try to deal with the points that have been raised. I should like to start by stressing what my noble and learned friend has said about the extent to which trade unions do exercise their authority where action is taken in defiance of collective agreements at the present time. Noble Lords may have seen a reference in
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The Times only last Friday which read as follows:
"The 80 maintenance workers whose unofficial strike has stopped all cal production at British Leyland's Austin-Morris car plant at Cowley, Oxford, will be told today that union leaders have ordered them to return to work at once.
"The instruction was sent yesterday to shop stewards by Mr. Reg Birch, executive council member of the Amalgamated Union of Engineering Workers, and Mr. Moss Evans, national automotive officer of the Transport and General Workers' Union."
This is exactly a case in point
LORD DELACOURT-SMITH: Did they stop their strike?
LORD DRUMALBYN: This may be a relevant question from the practical point of view, but not from the legal point of view. Undoubtedly there will be cases where the best endeavours will be successful and there will be cases where they are less successful. All that the law calls upon the trade unions to do is to exercise their best endeavours. I find it difficult to see any great objection to that. That is the obligation—the obligation of a contract—aid all that the subsection seeks to do is to ensure that that obligation is.recognised. It is not necessarily going to mean, as my noble and learned friend has '.,aid, that in every case the party is going to be taken to court. It is primarily designed to lay emphasis on the obligation.
LORD BROWN: The legal obligation.
LORD DRUMALBYN: The legal obligation, yes; but surely it is rig it that it should be a legal obligation in 'his case, because if the contract itself is legally binding, then obviously the parties to it must use their best endeavours, if they cannot do anything more, to see that the contract is carried out, and that also must be part of the legal obligation. I must confess that I cannot see the difficulty in this, but I hope that noble Lords will not feel that this is in any way incongruous. and, if not, I hope they will rot press their Amendment.
A question has been asked about the circumstances in which any person has purported to act on behalf of any party, and why this is in the Bill. Perhaps I could just say what the effect of removing the words " purporting to act ' would be. They would have an effect which, in practical terms, would certainly be

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very important to the plaintiff, because it would make it necessary for the party alleging the unfair industrial practice to prove that the person taking the action to breach the collective agreement was in fact acting on behalf of the other party to the agreement. That would be a difficult thing for the plaintiff to prove, but quite easy for the union to prove or to rebut. So I should have thought that these were sensible words to put in and that noble Lords would be satisfied with that explanation.
The point is, quite simply, that the burden would be placed on the plaintiff who is normally in a position neither to know the facts nor to obtain them in such a case. What I think one wants to stress—and this has not come out sufficiently in the debate today—is that nobody is going to run to the courts on every conceivable occasion whenever an agreement is broken, any more than everybody runs to the courts in the ordinary way when agreements are broken. Not only are there normal ways of settling these differences but under the Bill there are special ways. There is the conciliation which can be brought in, and the rest of it.
I think that noble Lords are elevating this too much into the legal sphere. The legal obligation is there, but how many people are involved in the courts in their lives? One would think that in good trade unions the same would apply. I think one must make a clear distinction between obligations laid on the citizen, in whatever capacity, and the sanctions that are taken if he does not carry them out. The sanctions are not taken in nearly every case and, what is more, if the obligations are clearly there and are recognised as part of the law, there could be no doubt at all that the ordinary citizen—and that includes, as it must, the trade unionist—will be more apt to observe those obligations.
I hope that noble Lords will not press this Amendment. I feel very strongly that it would be difficult to defend the exclusion of this clause which merely calls on trade unions to exercise their best endeavours to do something which they are doing already. Noble Lords may say this adds the legal sanction as well. I am saying that the chances of
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that legal sanction being widely used are comparatively remote.
LORD CHAMPION: Then why put it in?
LORD DRUMALBYN: The noble Lord says, " Why put it in?". I am saying that the proportion of people who will disregard their obligations now is small and we hope that it will become even smaller when this legislation comes into force. The fact remains that it is a consequential legal obligation, and we believe that by making it a legal obligation it will be that much more observed than it is now and will be understood right down the line. The trade union official intervening will be armed not only with the authority of the union but also with the authority of the law. I believe that this cannot fail to have a general effect; and, what is more, it cannot fail to improve the methods of communication down the line because it will be very much in the interests of the trade unions to make certain that at all levels the obligations of the collective agreements which the trade union has entered into are fully understood. After all, the main purpose of all this is to make certain that people do not take the law into their own hands. We have a procedure agreement at various levels. No doubt tempers will fray and break sometimes, but this is so in ordinary life, in the streets if one is insulted and the rest, but it should not be right to take the law into one's own hands. It should not be right for an individual or a group on the shop floor to act in defiance of a collective agreement.
The answer is not of course that only a comparatively small number of occasions will arise when there is shop floor action in defiance of a collective agreement. The answer is to make certain that collective agreements are respected right through industry at all levels. If this particular reinforcement helps in that direction, it will be well worth while.
12.35 a.m.
LORD BROWN: The noble Lord cannot get away with this. He says that all this subsection requires is to make clear that unions continue doing what they have been doing all along but it is far more serious than that. Take the case of a union which has a lot of wildcat strikes

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and there are legally enforceable collective agreements. The union officials are very busy with all sorts of problems and fail to put on the agenda of a committee meeting of the union branch this power to deal with the situations. They fail to discuss the matter and to take steps which might have resolved the disagreement. This means that institutionally in our society simple acts of omission occur because there is failure to take the initiative which wise people usually take but sometimes fail to take, and this becomes unlawful.
All this talk about the total situation is not to the point. The point is that we are making unlawful acts which normally are not unlawful. We are burdening people who have busy lives and have to take many decisions with the fear of the law because they use unwise discretion or fail to take the initiative. Be it on the head of the Government, for I believe it will boomerang on to them.
LORD DELACOURT-SMITH: I should like to follow what the noble Lord, Lord Drumalbyn, has said. Here we have come to one of the crucial points of the Bill. This is the great panacea which the Party opposite has been peddling for years. This is their solution to industrial unrest. They have been telling us for years how, if only there were a simple law which introduced sanctions of this sort, we should have an end to all unofficial strikes and all the other troubles. Now we have come to the point and we have heard what the noble Lord had to say. It is, all that is asked is that a trade union should go on doing what they have done in the past. That is a little different from what has been the propaganda of the Party opposite. We are up against practical problems and a number of people, not least those on the Donovan Commission. have tried to bring them out again and again.
Take the situation with which this subsection is intended to deal. Take a perfectly simple example, where a small group of workers—the clearest case from the point of view of the Government—come out on unofficial, unconstitutional strike because, they say, an agreement has been made which, while it might apply quite well nationally. because of some peculiarity in local circumstances does not operate fairly for them. So they
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come out on strike. What is to be done? The noble Lord suggests that we should act as did Reg Birch in the case he quoted. The humour of Reg Birch being the noble Lord's new hero would be as apparent to Mr. Reg Birch as to anyone else. But if you are a trade union official, let us say, at the headquarters of the union, what exactly are you to do to deal with this situation? One of the first things about a situation such as this is that often you can get nobody who will take responsibility for it. Your local elected representatives will frequently say: "The lads won't. take any notice of my advice; they lave acted in this way contrary to my advice".
Now what are you to do? Are you to remove your local elected representative from office? Where will that get you? For you will then have nobody who is in contact with the men who are taking this unofficial action and with whom you can effectively deal. In any case, the great danger is that your local elected representative will remove himself from office, if he has the impression that under this Bill lie may be made the person against whom effectively the.action can be taken and he may find himself in a very exposed position. So you are likely anyway to find that your local elected representatives may remove themselves from office. This will not have made one scrap of contribution towards what has to be done, which is to get the people back to work. What indeed you have to do—and there is no alternative to it —in nine cases out of ten is to get somebody to go down, or go down yourself, and try to find out what the trouble is. There may be circumstances in which one can issue an order of the kind to which the noble Lord referred, but it is likely to be effective only when there a closed shop in operation; because if you issue an order or if you expel the people concerned, all that you will have is 200 or 300 striking non-members instead of 200 or 300 striking members, and I do not quite see what advance that constitutes. Of course, if there is an agency shop in operation, under Clause 10 of the Bill, you will then have 200 or 300 people who are paying contributions to the union without being members, instead of having 200 or 300 people who are paying contributions to the union and are members. But the mater al point

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would still be that work would be stopped, and they would be out on strike.
What possible contribution is all this paraphernalia of legal penalties making to this practical situation? That is what we want to know. That is what we have been asking the Party opposite, year after year, ever since they started pretending that they had some magical solution for our industrial problems. At the end of the day, problems of that sort, in nine cases out of ten, are not solved by threatening people with penalties, or going to talk to them about the majesty of the law, or even going to talk to them about the majesty of the trade union. The vast majority of men and women in industry want to see collective agreements observed; the vast majority are prepared to observe them. But the problem you face when something goes wrong—and it goes wrong pretty infrequently, taking British industry as a whole—is to get down and find the root of the trouble, and try to put it right. In fact, every trade union is going to be embarrassed by the sort of legal paraphernalia which surrounds this clause, rather than being in any way assisted in doing practical work.
12.45 a.m.
THE LORD CHANCELLOR: Even at this late hour I feel that one or two observations are called for in answer to those remarks. Some of us on this side of the Committee do not find it acceptable that we should lie down under a deliberate breach of agreement. The willingness of the Party opposite to adopt an attitude of absolute helplessness in the fact of it is precisely what convinces us that this Bill is not only necessary but overdue. The various points to which the noble Lord, with his usual assurance, seemed to attach such importance are susceptible of a very easy answer again. He postulated the case of unofficial strike in breach of an agreement. The first thing to say is that the leaders of the unofficial strike, acting without the authority of the union, are the people who, if they can be identified, will render themselves liable to considerable penalties, not necessarily under this clause but under other clauses of the Bill. Normally they appear on television and give interesting interviews, so they are not
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usually quite the modest violets that the noble Lord seems to imply.
As regard the union itself, obviously it is in some difficulty, and I should have thought the noble Lord would at least have noticed that he had answered his own question. Clearly, the first thing the union has to do in such cases is to go down and ascertain what the trouble is and try to stop it. That is exactly what is meant by " using your best endeavour ". The third and only other thing it is necessary for me to say about Lord Delacourt-Smith's speech is that in June, 1969, the then Prime Minister, the present Leader of the Opposition, extracted from the Labour Party what was described as a solemn and binding undertaking, and that was interpreted by Mr. Wilson as putting upon unions an obligation to get their members back to work. If that is not exactly the same as is now put into this part of the Bill. I do not know what is. I do not know what the then Labour Government thought that the unions were giving by their solemn and binding undertaking, but if it is impossible now, it was clearly impossible then. Either the solemn and binding undertaking was spoof, or else they are now in a position to get a little more " go " out of their own members than they are now pretending in the face of this Bill. That is the complete answer to what is to my mind the wholly preposterous attitude adopted by the noble Lord, Lord Delacourt-Smith.
LORD DELACOURT-SMITH: I should be very reluctant to match my assurance against that of the noble and learned Lord. I was not for one moment suggesting that trade unions should be or are in the habit of lying down in the situation which I was describing as an example, nor am I going to be drawn by the noble and learned Lord's utterly irrelevant and to me incomprehensible remarks about something that happened in June 1969. The sole point I was making, and I make it again, is that when a situation such as I was describing arises you have to get down to the practical job of identifying the problem and finding a solution. I gather the noble and learned Lord agrees with me. I am merely making the additional point that, first, all the legal paraphernalia and liabilities for penalties of various kinds and damages do not assist in doing that

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job. I go further and say that it makes the doing of that job more difficult than it would otherwise be. That is where 1 stand, and I shall be delighted if the noble and learned Lord or any other noble Lord will respond on that point.
LORD CHAMPION: I was not going to ask the Committee to divide on this Amendment, but the answers we have
12.57 a.m.
LORD CHAMPION LORD CHAMPION moved Amendment No. 238R:
Page 27, line 10. leave out subsection (3).
The noble Lord said: I was going to make a tremendous song and dance about this Amendment, but then I saw that the noble Lord, Lord Drumalbyn, had added his name to it, which rather spiked my guns. I beg to move it formally.
LORD DRUMALBYN: I think perhaps I owe the noble Lord some explanation of why we appear to have the same
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had seem to me to be so unsatisfactory that I have no other course open to me but to ask the Committee to divide against this subsection.
12.49 a.m.
On Question, Whether the said Amendment (No. 238P) shall be agreed to?
Their Lordships divided: Contents, 17; Not-Contents, 78.

CONTENTS

Bernstein, L.

Diamond, L.

Shepherd, L.

Beswick, L.

Donaldson of Kingsbridge, L.

Strabolgi, L. [Teller.]

Brown, L,

Garnsworthy, L. [Teller.]

Wells-Pestell, L.

Champion, L.

Hoy, L.

White, Bs.

Davies of Leek, L.

St. Davids, V.

Wynne-Jones, L.

Delacourt-Smith, L.

Shackleton, L.

NOT-CONTENTS

Aberdare, L.

Dudley, E.

Poole, L.

Alexander of Tunis, E.

Eccles, V.

Rankeillour, L.

Allerton, L.

Elliot of Harwood, B.

Redesdale, L.

Amory, V.

Essex, E.

Redmayne, L.

Balfour, E.

Exeter, M.

Reigate, L.

Barrington, V.

Ferrers, E.

Rothermere, V.

Beauchamp, E.

Fortescue, E.

Ruthven of Freeland, Ly.

Belstead, L.

Gisborough, L.

St. Aldwyn, E.

Brabazon of Tara, L.

Glendevon, L.

St. Just, L.

Bridgeman. V.

Goschen, V. [Teller.]

St. Oswald, L.

Brooke of Cumnor, L.

Gowrie, E.

Samuel, V.

Brooke of Ystradfellte, Bs.

Gray, L.

Sandford, L.

Burton, L.

Hailes, L.

Savile, L.

Carrington, L.

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

Selkirk, E.

Chelmer, L.

Sinclair of Cleeve. L.

Coleraine. L.

Harvey of Prestbury, L.

Somers, L.

Colville, V.

Jellicoe, E. (L. Privy Seal.)

Strange, L.

Conesford, L.

Kemsley, V.

Terrington, L.

Cottesloe, L.

Killearn, L.

Thorneycroft, L.

Cowley, E.

Kilmany, L.

Tweedsmuir, L.

Craigmyle, L.

Lothian. M.

Tweedsmuir of Belhelvie, Bs

Cranbrook, E.

Luke.L.

Vivian, L.

Cullen of Ashbourne, L.

Lyell.L.

Wakefield of Kendal, L.

Davidson, V.

Margadale, L.

Westminster, D.

Denham, L. [Teller.]

Merthyr, L.

Wigram, L.

Digby, L.

Milverton, L.

Windlesham, L.

Drumalbyn, L.

Mowbray and Stourton, L.

Resolved in the negative, and Amendment disagreed to accordingly.

point of view on this matter. The explanation from his point of view is quite simple: if he will look at page 40 he will see that, with the change of one word, the substitution of the word " Act " for " section ", the subsection (3) that we are discussing appears as subsection (3) of the new clause to be moved after Clause 157, the definition of " collective agreement ". I may add that it might be more convenient in any case to debate it then, when we have discussed he clause with which it deals.
LORD CHAMPION: I am grateful to the noble Lord for calling my attention to that point. I might have town up my

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notes if he had not told me. I shall now use them in attack a bit later.
On Question, Amendment agreed to.
On Question, Whether Clause 34, as amended, shall stand part of the Bill?
LORD DIAMOND: I shall not detain your Lordships for more than a moment or two on Clause 34, which I have not studied with anything like the care which my noble friends have. Indeed, the only reason I rise to discuss Clause 34 is because of the explanation which the noble and learned Lord gave a little earlier on about Clause 34 (1). I am back on the point of an unfair industrial practice arising where an agreement which had been entered into prior to the Bill's having effect is a legally-enforceable contract. I gathered—and I should be grateful to the noble and learned Lord if he could put me right—that where such an agreement exists and was entered into with the intention that it should be a legally-enforceable agreement, one of the effects of the Bill is to remove the jurisdiction from the court which previously would have had jurisdiction, and that the only jurisdiction left is with the Industrial Court. The argument of the Government is that if it is to be legally enforceable you must have some court to enforce it. One could make the point that it is a different court; and that when the agreement was entered into it was intended that any argument should be settled before courts with which the parties were familiar, with the staffing of which the parties were familiar and with whose likely conclusions the parties were familiar. But I do not stress that matter very much at the present time because there are other more important points which arise from this clause.
What the parties thought they were doing when they entered into a contract legally enforceable at that time was not that they were entering into an agreement the breach of which would constitute an unfair industrial practice. The unfair industrial practice produces results some of which can go beyond those which could have been resulted from agreements which might have been tested before a court had this Bill not become an Act. Therefore, it seems to me that the introduction of Clause 34(1) is to substitute a new and much more onerous
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situation upon the parties to an agreement than existed at the time they entered into the agreement. If that is so, then the speech made by the noble Lord, Lord Belstead, seems to me not wholly appropriate; because, in fact, the parties as a result of this clause have been put at risk to penalties which might not have been capable of being applied had this Bill not been enacted. Therefore we are facing a situation in which there is what is tantamount to retrospective legislation—though not in the most literal sense —namely, that the position which the parties to an agreement understood was to be the position is subsequently altered by an enactment in a way in which they did not intend to happen.
There are various ways of dealing with this matter. If the difficulty arises from the fact that the enacted Bill says that jurisdiction shall only be that of the Industrial Court, then there could be an Amendment saying " except as regards legally enforceable contracts entered into prior to the Bill becoming an Act ". That is one way. Another is to say that where the parties enter into an agreement which they intended to be legally enforceable they must now, in the changed circumstances, have an opportunity of saying whether they wish it to be legally enforceable in the new way, in which case it could produce penalties different from those earlier intended; or that they no longer wish it to be enforceable having regard to the changed circumstances.
So it is certainly not the case that there is no easy method of dealing with this problem. There are two easy methods of dealing with this problem. But what is not tolerable is that parties to an agreement should find that the penalties in respect of a contract which they intended to be legally enforceable should be totally different and should exceed those which existed at the time they entered into it. That is the main point I wanted to raise. The rest of it we have been over, and the Committee knows that we dislike this whole clause intensely. But I thought it was right to raise this one point inasmuch as the reply which was given was such as to satisfy my noble friend Lord Brown that he was not on a good point, while in my view he was on a very good point indeed.
THE LORD CHANCELLOR: This is very ingenious but, as at present advised,

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I do not think it will wash. To start at the beginning, the noble Lord's point is limited to agreements which under the existing situation, and before the Bill passes into law, are enforceable. He is right in saying that they are, if enforceable at all, which is his assumption, enforceable in the ordinary courts; that is to say, in the county court or in the High Court. But how are they enforceable? The answer is, only between the parties to those agreements and only to give rise to one of the following remedies: one, a declaration of right; two, an award of damages; and three, an injunction; because those are the only remedies at present available.
All we have done by Clause 34 is to say: the county court and the High Court shall not have jurisdiction to try this particular dispute between the parties if it arises and, in place of that, there shall be an award of compensation; that it will be called not " a breach of contract " but " an unfair industrial practice " which is the term of art used in the Bill, meaning no more than a wrongful act giving rise to jurisdiction, in this case of the Industrial Court but in other cases either of the industrial tribunal or of the Industrial Court—and there will be one of the following remedies available: one, a declaration of right——Section 97(1)(a); two, an award of compensation, assessable on exactly the same principle as damages——97(b) and, I think, Section 111 (the second one may not be the right number but I think it is); and three, an order in the nature of an injuction. In other words, they are in exactly the same position, but with this difference only—and there is this difference only therefore
at first sight in the noble Lord's point—that if the defendant or the respondent to the complaint in the Industrial Court is a registered trade union, there is a ceiling on the amount of compensation which can be awarded against it—a ceiling which does not apply if the party who is respondent to the application is an employer and not a registered trade union. That is the only difference and it is a difference which, in so far as it affects a change in the law, affects it solely for the benefit of registered trade unions. I daresay that in theory an employer would have a grievance, but if so it is a relatively small one and certainly nobody purporting to speak in the interests of the trade union movement could claim to have one.
LORD DIAMOND: I am grateful to the noble and learned Lord for having explained that the remedies broadly are the same. That is the essence of the matter. I had understood from a previous speech that the remedies were not identical. I think what I have to do about that is to say how grateful I am for the explanation and to consider it carefully and be advised on it. I am glad to say, therefore, that the reasons for voting against Clause 34.are not as numerous as I thought they were going to be: but they are wholly adequate, and that is what we propose to do.
1.9 a.m.
On Question, Whether Clause 34, as amended, shall stand part of the Bill?
Their Lordships divided: Contents, 74; Not-Contents, 17.

CONTENTS

Aberdare, L.

Craigmyle, L.

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

Alexander of Tunis, E.

Cranbrook, E.

Amory, V.

Cullen of Ashbourne,L.

Harvey of Prestbury, L.

Balfour, E.

Davidson, V.

Jellicoe, E. (L. Privy Seal.)

Barrington, V.

Denham, L.

Kemsley, V.

Beauchamp, E.

Digby, L.

Killearn, L.

Belstead, L.

Drumalbyn, L.

Kilmany, L.

Brabazon of Tara, L.

Dudley, E.

Lothian, M.

Bridgeman, V.

Eccles, V.

Luke, L.

Brooke of Cumnor, L.

Elliot of Harwood, Bs.

Lyell, L.

Brooke of Ystradfellte, Bs.

Essex, E.

Margadale, L.

Burton, L.

Exeter, M.

Merthyr, L.

Carrington. L.

Ferrers, E. [Teller.]

Milverton, L.

Chelmer, L.

Gisborough. L.

Mowbray and Stourton, L.

Coleraine, L.

Glendevon. L.

Poole, L.

Colville of Culross, V.

Goschen. V. [Teller.]

Rankeillour, L.

Conesford. L.

Gowrie, E.

Redmayne, L.

Cottesloe. L.

Gray, L.

Reigate, L.

Cowley, E.

Hailes, L.

Ruthven of Freeland, Ly.

St. Aldwyn, E.

Sinclair of Cleeve, L.

Tweedsmuir of Belhelvie, Bs

St. Just, L.

Somers, L.

Vivian, L.

St. Oswald, L.

Strange, L.

Wakefield of Kendal, L.

Sandford, L.

Terrington, L.

Westminster, D.

Savile, L.

Thorneycroft, L.

Wigram, L.

Selkirk, E.

Tweedsmuir, L.

Windlesham, L.

NOT CONTENTS

Bernstein, L.

Diamond, L.

Shepherd, L.

Beswick, L.

Donaldson of Kingsbridge, L.

Strabolgi, L. [Teller.]

Brown, L.

Garnsworthy, L. [Teller.]

Wells-Pestell, L.

Champion, L.

Hoy, L.

White, Bs.

Davies of Leek, L.

St. Davids, V.

Wynne-Jones, L.

Delacourt-Smith, L.

Shackleton, L.

Resolved in the affirmative, and Clause 34, as amended, agreed to accordingly.
House resumed.