§ 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 106 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 107 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- 108 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 109 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 110 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.
111 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 112 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 113 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—So that clearly states there will be some party responsible for damages in the event of a breach, and if there is such 114 a claim the Industrial Court is.he proper tribunal to deal with it.
- (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."
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,
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.
- "(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…"
§ LORD WILBERFORCE
I urn very happy to follow my noble friend from these Benches, because many of his thoughts correspond with mine..Before I 115 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 116 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 117 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.
118 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 119 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 120 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 121 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- 122 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 123 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 124 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 125 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 126 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 127 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.
§ 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 128 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 129 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 130 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 131 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.
§ 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 132 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 133 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?
§ 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 135 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 136 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 137 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, 104.139
|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.|
|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.|
On Question, Amendment agreed to.
§ 9.43 p.m.
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 140 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 141 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 142 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 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 143 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 readEvery 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,144 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 145 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 146 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 147 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.
148 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 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.150
§ 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.
§ 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 152 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 153 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 154 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 155 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 156 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 157 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 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 or158
§ 10.34 p.m.
§ On Question, Whether Clause 32, as amended, shall stand part of the Bill?
§ Their Lordships divided: Contents, 87; Not-Contents, 28.157
|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.|
|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.
§ (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,
§ (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 160 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 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 move162
§ 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 163 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 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 165 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 166 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 167 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 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
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 170 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 171 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, 83.173
|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.|
|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. 1316–871175 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, 19.179
|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.|
|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 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.
§ Amendment, by leave, withdrawn.
§ 12.2 a.m
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 …"
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
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.185
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.
187 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 188 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 189 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 190 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 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 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 191 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 192 that legal sanction being widely used are comparatively remote.
§ 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 193 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 194 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 195 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 196 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 197 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 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 198 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, 78.197
|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.|
|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 199 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 200 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, 201 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, 17.203
|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.|
|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.