§ 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, 117.53
|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.|
|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.|
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) 54 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 55 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 56 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 57 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 58 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 59 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 60 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 61 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.
62 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 63 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 64 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 65 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. 66 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.
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 67 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.
68 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 69 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 70 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 71 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, 51.73
|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.|
|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.|
§ 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 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 74 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
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:
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.
§ 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 77 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 78 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 81 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- 82 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, 83 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, 84 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 85 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—This refers to a collective agreement in writing. But when we come to the definition of "collective agreement ", we find that it says:
- (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."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
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.
§ 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 87 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 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 89 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 oraland 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 91 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.