HL Deb 25 May 1971 vol 319 cc1047-140

8.15 p.m.

House again in Committee.

Consideration of Amendment No. 263NNNN resumed.


If we are not discussing Part V of the Bill on this Amendment. we are discussing the real contents of Clause 92. I could make a long speech on this, but I am not going to do so. I want to get clear an attitude that this part of the Bill is an attempt to weaken the power of trade unions, trade union officials, shop stewards and representatives. This attempt to weaken their power is really an attack on the total weight of the problem facing this country. I happen to hold the view that the untrammelled power of some unions as opposed to the weak position of others to-day is the cause of a great deal of disparity in the incomes earned by different occupations in this country. The weak are being driven to the wall, and the strong are earning large amounts of money. This discrepancy in differentials is a cause of a great deal of feeling in this country, and is one of the causes of the inflationary situation.

I also happen to believe that attempts to deal with this problem on the one hand by weakening the unions through this Bill, or, on the other hand, by maintaining the unions in a very strong position, are irrelevant, because I do not believe that if the power of the unions is weakened that will solve inflation problems. Nor do I believe that if the power of the unions remains as it is it will solve the inflation problems. Both will fail.

I have risen from these Benches in support of one or two of the attitudes taken by my friends across the other side of the Committee, because if the Bill comes into force it may as well be as good a Bill as possible. It is a highly complicated Bill which goes deep into interference with unions, and an attempt to weaken them. I do not think this weakening of them will solve the problem of wage inflation. I believe that a totally different attack on this problem is necessary.

I will not bore your Lordships with a description which is inconsistent with the views not only of the Government but also of my own Party, because I have already made two speeches and I do not believe in repeating myself endlessly. I am in a great quandary, as some noble Lords have noticed, over this Bill, because I do not believe in the Bill and I do not always believe in the opposition which is put up against it.

So far as this Amendment is concerned, I believe that it represents a very grave attack on the individual rights of the worker because the only power he has in himself is to sell his labour at the highest price, or.to refuse it. That seems to me a fundamental human right. The Government have spent many hours pointing out that the purpose of many of the clauses of the Bill is to defend the rights of the individual, and this is an attack upon them. On the other hand, to introduce this Amendment, which would have the result that the action intended by the Bill would not be able to be put into practice, seems to me to be equally illogical. This illogicality—and I have got to say this with humility because I am attacking two great political Panties simultaneously—arises from the fact that the whole term of reference and the way of looking at industrial relations today is wrong. Having reached that very presumptuous note, perhaps I had better silt down.

8.20 p.m.


At the outset of the proceedings I said I should like to raise a few points, and the noble and learned Lord the Lord Chancellor dealt with many of them. He put very carefully a number of points in connection with the clause now before us. I wonder if I may comment on one point he made in respect of the argument about conscience strikes. He took the view that when a man or group of men could not undertake particular work because it was repugnant to their consciences this was not in itself an industrial dispute. I see the force of that argument. But is it not a real difficulty that, almost invariably, such a situation at once develops into an industrial dispute, because the employer is likely to say to the men who resist a particular type of work. " This is work appropriate for you and your fellow workers to do and I expect you to do it ". Is that not likely to develop into an industrial dispute within the term of the definition clause, which embraces disputes about terms and conditions of work? I Should, have' thought that whether an individual did a particular type of work was intimately associated with the terms and conditions of his work, and with the allocation of work among different groups of workers. I wonder whether there is not more real difficulty in the terms of the clause than the noble and learned Lord was disposed to admit.

The other major point I would like to raise, Which has been touched upon, and about which I should like the noble and learned Lord to make some comment, is the term " inducement ". I am sure that he will appreciate that those of us who are not lawyers approach these three clauses with special difficulty, because there are a number of legal concepts in them which are not so familiar to the layman as they are to those more deeply involved in the law. I must confess that I do not find it easy to determine precisely what are the elements in inducement.

Perhaps I could illustrate my difficulty by taking up another point which the noble and learned Lord made. He said at one stage in his remarks that he accepted that many of us on this side of the Committee were deeply concerned and opposed to these clauses, as there were people outside deeply concerned and critical of them. He said he found this genuinely difficult to understand, because Clause 92 was concerned to strike at irresponsible unofficial strikes, and lie took it as common ground in the Committee, as indeed it is, that we should all desire to see irresponsible unofficial strikes diminished in number and in effect. The problem is that we on this side still remain unconvinced that this is the most effective way—or indeed an effective way—of dealing with the irresponsible strike. I have a suspicion that the man of calculated irresponsibility (if I may use that phrase) is likely to find some way through this clause, which undoubtedly to many of us seems to put a cloud of legal menace over the heads of honest people, who may feel that they are put in a situation where a short, sharp stoppage, a spontaneous action, is the only possible human reaction to the situation in which they have been placed.

Let me mention two types of case which give rise to short stoppages, often unofficial and perhaps unconstitutional. There is the case where there is a bullying foreman and representations have failed to get rid of him or to change his habits; or the simple case, which often arises, where people find that the physical conditions of work are intolerable—their workshops may be either too hot or too cold—and again representations have failed to get anything effective done. I would be grateful if the noble and learned Lord could give us some guidance as to what inducement means in such cases.

Let me take the instance where there is an unsatisfactory supervisor. As happens in these circumstances, a breaking point comes. The people affected say that they are not going to stand it any more. They come out, have a meeting in the canteen, send a deputation to the management, and produce a situation in which something is done at last. What happens if a situation arises in which one man says, " I am not standing for this sort of thing," and walks out? The man to whom he has said this says that he is not going to stand for it either, and he walks out. This creates a stir, and other people take this up, and soon the whole shop has gone out, either to the canteen or outside the factory, held a meeting and stopped work for a period of time to get the grievance put right. Is there inducement here, in the case of the man who first makes a move, the man who sets an example, as it were, and by his example leads others to follow, even though he has not submitted any arguments to them?

Or take a slight variant of this, where an incident of this sort gives rise to a discussion in the shop. It is not a spontaneous walk-out, not even a process of one or two people going out and others following, but a discussion in which people tell each other that they have had enough and they are not going to stand any longer a supervisor's behaviour, say, or his language. These are the cases which cause us concern and anxiety. Is this inducement? And does such action lay the individual open to any charge of unfair industrial practice or offence under the terms of this clause? This is the reason for the Amendment which my noble friend has moved, and I should like to add these additional points which he put forward.

8.29 p.m.


I do not want to detain the Committee long, because I imposed upon your Lordships a good deal in my first speech. I should not like, without reflecting a great deal to give a complete definition of inducement, because I think the word bears its dictionary meaning. But three factors must be present apart from any others. First, knowledge that a contract exists; secondly, knowledge that the conduct induced will constitute a breach of contract and, thirdly, intention to create that breach. Obviously, it is easy to construct cases in which relatively honourable conduct or extremely honourable conduct could be held on that definition to constitute an inducement to breach of contract.

It so happens that the noble Lord, Lord Stow Hill, and the noble and learned Lord, Lord Gardiner, have an Amendment down which deals with personal justification and I was proposing to go into this a little more deeply then. If I may summarise one or two of the things I shall be proposing to point out at that time, without seeking to elaborate on them, clearly, circumstances can exist as in the very well-known case, to which the noble and learned Lord, Lord Gardiner, referred earlier, of Brimelow v. Casson, in which no decent court would wish to do other than find against a plaintiff who complained of inducement to breach of contract. The particular facts in Brimelow v. Casson were that the girls in question had been driven by intolerable conditions of work and low rates of pay to support themselves by prostitution. There is a clear defence in other parts of the Bill which would enable a court, even if the Bill is not amended—and we shall discuss possible Amendments when we come to them—to give effect to such a case and to defend a respondent to a complaint who had induced people to walk out in comparable conditions. But, broadly speaking, one hopes that industrial relations will not be carried on in that kind of spirit and to that extreme, because long before such a situation arises, if there is a strong trade union and if there is a reasonable employer, negotiations will have reached a point at which the union can either say " This will be an official strike because of the rate of pay ", or the employer will say, " What you are asking is too much ". But long before that stage is reached an arrangement of some kind will, one hopes, be arrived at.

All through the Bill—I will not enumerate the places where they occur—the Government have introduced phrases which try to develop the idea of conciliation before legal action, far less illegal action, is resorted to—and I would stress that. But the broad position, subject to the discussion of individual Amendments, to which Clause 92 gives rise, is that if you induce a breach of contract with the authority of your union you are all right, you are under the umbrella; if you do it without the authority of your union you are not all right. If the union does it, it is all right unless, for some reason contained in the Bill, there is an unfair industrial practice. If somebody simply walks out and other people follow him, or if he says, " This is intolerable: I am off ", or something like that, he is not inducing a breach of contract at all because the essence of what I am saying is that there must be an element of deliberate intention to cause other people to act in breach of contract before the clause begins to bite at all.

Obviously in that sort of situation you are dealing with a series of questions of fact and degree, and it is precisely because you are dealing with just such a series of questions that to handle matters of this sort, we have introduced the conception of an industrial Court which will be composed of a majority of experienced laymen, with a legal president to define the legal. issues which they will have to determine and to join in their decisions. It would, therefore, be foolish of me to predict exactly what the court would be likely to find in any given set of circumstances—which in any case are never complete if you construct a case. All I am saying is that we think the law needs simplifying. Inducement of breach of contract is a tort at the present time and it involves the elements I have tried to describe.

The present umbrella is limited to contracts of employment to be extended to all acts in furtherance of a trade dispute. In agreement with Donovan, we have extended it to all breaches of contract, whether or not there was a contract of employment, referring to trade unions and their organised agents—and that again is in conformity with Donovan. I have not tried to conceal the fact that there is a difference between the two sides of this Committee, and there will be differences when we come to discuss Amendments. There are cases on both sides, and where the line has to be drawn is something to be discussed in detail. As I see it, the two points of difference at this stage of our debate are these: First of all, do you extend the umbrella to unregistered associations? We say " No "; the Party opposite say " Yes ". Secondly, do you extend the conception of the umbrella to acts which, although they are in breach of contract, are nevertheless all acts in furtherance of a trade dispute? We say " No, not unless you have union authority "; and they say " Yes ". I think we know where we stand, and I do not think I can help the Committee further at this stage. There will be further opportunities later to develop this argument.


The noble Lord, Lord Delacourt-Smith, as usual, has put his point very skilfully and has with equal skill skated round the very thin ice of his argument. Of course no one would object to workers walking out if conditions became physically intolerable through heat, cold, fumes, the danger of a wall collapsing, or anything of that sort. Equally, should there be an unpleasant foreman who would not mend his ways and whom the management would not discipline, they would be justified in walking out. But the whole object of this Bill is to strengthen the power of the legitimate trade union. Everyone knows, including noble Lords on the Benches opposite, that in all too many cases power in the trade union does not rest with the elected officials but with an unofficial body of shop stewards, many of whom are either Communists or fellow travellers. They are the people who foment lighting strikes which are often completely against the wishes of the trade union officials concerned and of the great majority of the workers.

What we need to do is to ensure that when a strike is called it is called for legitimate reasons and by responsible officials of the trade union concerned. It has to be remembered—the noble Lord, Lord Delacourt-Smith himself admitted this that we need to get away from the lightning strike. Be it remembered that the last Administration themselves introduced a measure purporting to deal with this matter. Then, after it had been vigorously and bravely put forward by the Minister in charge, she had the carpet pulled from under her feet by her own leaders, who panicked as a result of pressures put on them by their own Left Wing. I repeat that we need to strengthen the trade unions and to pay full attention to legitimate grievances, but not to allow a small and irresponsible band of shop stewards and others to disrupt the running of an industrial concern.


We really must get over the stage when we talk about unofficial strikes always, or nearly always, being fomented by Communists or fellow-travellers. No one who has made such a speech has even attempted to explain why thousands of sensible British citizens can be stimulated by these unbalanced people to walk out and to stay away from work at great hardship to themselves, just because a handful of these people have suggested that they should do so. That is a fairy tale which has been repeated in some quarters many times and has no foundation whatever in truth. People go on strike because they want to and because they believe that by exercising this form of power they can achieve some economic gain for themselves. I just want to rise with great respect, and protest at this old fairy tale appearing over and over again. It is not true. This analysis of the industrial situation damages our whole attempt to understand it, and it should be denied whenever possible.

8.40 p.m.


The Government continually say that they want to strengthen the trade unions. But the machinery is there for the trade unions themselves to carry out their responsibilities of negotiating with employers and so on, without any consideration from any particular Government, no matter what Government is in power. so long as they have freedom of opportunity to do so. I have followed the noble Earl, Lord Mansfield, before on this issue of shop stewards and talk about Communists. He will remember, as will other noble Lords, that I cited that in the National Union of Mineworkers we had two of the best union leaders that this country has ever produced, and they were Communists: one was Arthur Horner, and the other was Will Paynter. No one could condemn them for their form of leadership.

When we talk of unofficial strikes operating inside industry, I myself have led unofficial strikes when I was working down below in the mines. It was the easiest thing in the world for us to stop the pulley wheels from going round and to call a strike which did not have the approval of our district leaders. But. you know, when you spend 7½ hours down below, and the sun is shining up above—young boys as we were then, 15 or 16 years of age—the easiest thing in the world for us immediately we got to the pithead was to reverse our steps and go back home. Our mothers used to say: " My goodness, they're back again." I do not agree with unofficial strikes. I believe in strong trade union leadership which is able to say to the members: " We are the negotiating body. In accordance with the rules and regulations of our association, you must go back, and we will carry on the negotiations and find the reason for the dispute." This has been done by the leaders of the trade unions.

It is unfortunate that noble Lords put forward the type of argument that seems to bring discredit upon the shop stewards and their responsibilities. Perhaps I may cite this example. Take the local branch secretary of my particular union. The ordinary individual approaches him. But the trouble in industry to-day between employees and management—and noble Lords ought to realise it—is that they have not been able to work out proper conciliation machinery to deal with problems as they arise. If you have good conciliation machinery agreed between the parties, and you have a certain period of time, say, a matter of three weeks, for the problem to be settled, unofficial strikes would never occur.

Therefore, when the Government talk about strengthening the unions, let them not forget for one moment the type of leadership of trade unions in this country. I am proud to think that we still have in this country men who are prepared to take on that form of responsibility, not for the monetary benefit, because some of them receive salaries which are not commensurate with those paid to managing directors of small firms of about 200 people. Some of these union men are responsible, not for 200 people, but for over one million employees who are members of their particular association. Therefore, I hope that the Government —and I say this to the noble and learned Lord the Lord Chancellor, and to the noble Earl the Leader of the House, for whom I have a very high regard that they will consider seriously before they take this step. We are living in a new age, with young people who are better educated than we were in our day and who see things in an altogether different light. It is only by education and persuasion that we shall be able to get them to fall in line, and so avoid the trouble inside industry that we have to-day. This can come about only on condition that you are prepared to talk to them and make them understand that they are units in and integral parts of industry. Someone has to be at the top and responsible for starling the individual off and for terminating his employment if necessary. That is the way the system works. For heaven's sake! forget all about putting the blame all the time on the shop steward, or even the branch official. Always think that you still have that leadership inside trade unions which tries to guide the membership along lines which lead to good relationships and good conciliation operations, instead of continually putting forward this false condemnation.


If I understood the noble Lord, Lord Slater, aright, I want to say something which supports him. He was talking about leadership and unofficial strikes. As I see it, an unofficial strike is a negation of union leadership, because it means that at a particular moment of time people who are supposed to lead the union hand over their responsibilities to someone else. I do not pretend to know anything about trade unionism in the way that the noble Lord does, but I have had a certain amount of experience in leadership, and I know that if you are going to lead in this world, whether it is trade unions or anything else, you have to lead first, last and all the time, and you cannot switch leadership on and off like an electric light. That is why the unofficial strike is something that I hope this Bill, when it becomes an Act, will largely put an end to.


I do not think the views of the noble Earl, Lord Mansifield, should go unchallenged in this Committee. His is the type of Conservative mind which I do not suggest for one moment is represented on their Front Bench: it is the type of mind that sees a Communist under every bed. The unofficial strike, which is basically a short stoppage, comes about, in my view, not through a negation of leadership, but.from a negation of or a breakdown in communication, sometimes between the egional trade union officials, sometimes between the shop stewards and the shop floor, and equally between middle management and the shop floor. It is not a simple problem. It is a problem that can he overcome, as I said at an earlier stage, only by creating better understanding and better communication, and simplifying the elements of irritation in industrial relations. Many unofficial strikes, in my experience, have been brought on by faults of management, by having a too complex system of wage structure, so that people doing similar jobs in the same area on the same shop floor get different pay packets. They do not understand the basis on which the take-home pay is arrived at. Those are the irritations: the failure of communication, the weakness of management, that lead to these unofficial stoppages. They can only be solved, in my opinion, by the joint efforts of management and trade unions, and not by such things as a legal definition of breaches of contract.

8.51 p.m.


I listened to the noble and learned Lord the Lord Chancellor trying to explain to your Lordships the interpretation of " inducement ". I am sure he did his best, but I am still not clear about the full implications of what this word means in relation to the Bill. I should like to take the noble and learned Lord with me in imagination to the pithead on a nice, sunny July afternoon. The custom is that perhaps 50, 60, 100 or 200 men will be congregating there just for a few moments before descending into the darkness and the dangers of the underground. The temperature is about 70 degrees. They are looking to the hills and the horizon, and they are also thinking of the prospect that will face them in a few moments. One man, Mr. A. says to Mr. B, " Yesterday the colliery official did me out of so much. Instead of putting in a yard of ripping, he put in only half a yard." The rumour goes round: " If he did that to you yesterday he might Co that to me to-day " Then somebody else says, " He may do that to me tomorrow ".

Here you have dissatisfaction with what is happening. There has been no premeditation at all. It has reached such a point that the men say, " Well, if he does that we will go home ". The point I should like to put to the noble and learned Lord is this: under this Bill would that be regarded as fomenting a strike—not on a national basis, not on a county basis, but on a pit basis, which would only affect perhaps a thousand men? I should like the noble and learned Lord to give me a more explicit definition if he can of what is meant by " inducement " under the terms of this Bill, in the light of what has happened, what happens to-day, and what is likely to happen when this Bill becomes law.


I tried to say in an earlier intervention that whatever else " inducement " included it included a deliberate intention to induce a breach. In nothing that the noble Lord has said in the case he has given was there that on anybody's part, so far as I can judge.


The noble and learned Lord the Lord Chancellor has said that Donovan advocated that protection should be given to workers in registered trade unions and the whole Commission agreed with that. He also said that the Commission recommended that that protection should he limited to registered trade unions, and he mentioned that this was a majority view. I was one of the people in the minority, which included three other people, I believe, including Mr. George Woodcock. Our view was that the protection should continue to be extended to all groups of workpeople, whether they were in a registered trade union or not.

Speaking for myself, and I am sure for Mr. Woodcock in this matter, we wire not thinking in terms of strengthening the trade unions, we were trying genuinely and sincerely to find an answer to the industrial problems which were worrying the country then, and are still worrying the country. What we are discussing here to-day—the difference between the two sides of the Committee—is that we disagree on how the industrial problems can be solved. I do not want to go into that. We were trying to evolve recommendations which would be just and equitable to all workpeople and to all managements—to industry as a whole.

I should like to know whether, if men walk out because conditions are bad, for instance because they are dangerous, this is an industrial dispute, or is it not? I do not know the answer, and we should be told what it is. I did not see then, and I do not see now, why a group of people who take legitimate action to save themselves from acute discomfort, and perhaps serious accident, should not get the protection of the Act. I do not see why there should be a distinction between these two groups. We have not been given a very clear answer. If it is a fact that these are industrial disputes, and these people would be subject to action, and not get the protection they used to have, I can only continue to think that that outcome would be wrong. I hope someone on the opposite Benches will be able to satisfy me that what I fear is the position is not so.

We get ourselves confused by taking up prejudiced positions about strikes in general and unofficial strikes. I have said already that I accept that there is a problem. It is how the problem is to be solved that we are in dispute about. Some people imagine, as some noble Lords do, that all strikes are wrong. Many people think that unofficial strikes are always wrong. Unofficial strikes are not aways wrong, as I know very well. Sometimes an unofficial strike is completely justified, and if people are in a union an unofficial strike often becomes official in a very short time. I am on my feet in order to get clarity on this point. The minority of the Donovan Commission had very good reason for not agreeing that the protection should be given only to registered unions and workers in those unions; we thought there was a very good case for that protection to be continued for people who were taking genuine and sincere action against something which they felt to be wrong, and which later on would be seen to be wrong in the public eye. We just could not see the distinction. The noble and learned Lord has said that there was a minority view, and I thank him for that. I have explained why I was in that minority. It is a proper view to take, and I think we are entitled to a proper answer, because this is rather a serious matter.

9.1 p.m.


I have listened to this debate with great interest and, without prolonging the debate unduly, I should like to be allowed to say a few words front these Benches. I would like to say with what great sympathy I listened to the speech of the noble Lord, Lord Slater, and also to what the noble Lord, Lord Collison, said. However, it is extremely important that the trade unions should be enabled to have control of the situation. It is really essential that they should be a good deal stronger than they are, and I think this Bill will in fact have the effect of helping them, and to some extent forcing them, to extend their control more widely than it now is.

The point which struck me about the Donovan Report was to find how slender, when one worked it out over the whole country, is the network of branch secretaries. The position of shop stewards is in a way anomalous. One would expect them all to be authorised to act as they do by their trade unions, but in point of fact they very often act independently. I believe, as has been pointed out from both sides of the Committee, that a powerful shop steward organisation is essential for the satisfactory working of industrial relations. But I also believe it very necessary that it should be brought under the trade union umbrella, because I do not see how else the trade unions can be strengthened to perform the essential functions they must fulfil. Therefore, I believe that the provisions in the clauses we are now discussing are necessary, because they will have the effect of bringing the shop steward organisation under the control and influence of the trade unions themselves.

There seems to me to have been some concern in our debate that the designation of various acts as " unfair industrial practices " will in fact work against the trade unions. I do not think I have seen the words " unfair industrial practice " in any foreign legislation. To me it is a rather new phrase, but I believe it is a quite useful one. But the point which has struck me is that, where there is an organisation for settling industrial disputes abroad, it does not by any manner of means always work to the disadvantage of trade unions. I can assure noble Lords that in many countries I know of management is really frightened of being brought before the labour courts.

It is not right to look at these clauses completely in isolation. We are obliged to do so at the moment because we do not have the code of industrial practice, so what we are looking at now is the negative side of the picture. I believe the negative side of the picture has to be strengthened and that unfair industrial practices by either management or labour leading to a breach of collective agreements ought to be put at the disadvantage that we see in the legislation we are now contemplating. But on the positive side of the picture it is very necessary that better arrangements should be made in every workshop and on every shop floor whereby disputes can be settled in a rational way.

When I say I am against unofficial stoppages, that is not to say that I think all stoppages are wrong; it is merely that I think it is a particularly futile way of settling disputes. There ought to be a better method in the years we live in. We must take into account the fact that by having the relatively bad industrial relations we do have, we are in process of ruining our industries. It would bring tears to your Lordships' eyes if I told you the certain knowledge I have of contracts that have been lost abroad—valuable contracts that would have meant much employment for our workers, which have been lost because there has been a dispute in the docks and motor cars could not be delivered; or there has been a dispute in some subsidiary industry and the goods (not necessarily motor cars) could not be manufactured. This sort of situation shows that this is an exceedingly inefficient way of settling disputes on the shop floor.

We have to look to the code of industrial practice to give a lead to the country as to how this is to be done. And when we look at these clauses in isolation let us remember that we are looking at only one half of the picture; the other half of the picture we have not yet got. But I hope and believe that this Bill will point the way to an altogether better system of settling industrial disputes—in the same way as we no longer have to go out and draw swords or use fisticuffs on our neighbours when we do not like the shape of their noses. We have a better way of doing things. All right! Let us do that with industrial disputes, too.

Therefore, on the whole, I am much in favour of these clauses, but only on condition that the positive side of the picture is really well dealt with in the code of industrial practice.


It was not my intention to intervene again, but in view of what has recently been said one would think that this country was in a terrible state because of unofficial strikes and strikes generally.


Hear, hear!


Very well. This is a theme which has been built up, as the ready cheers of the Government indicate. It would be as well if noble Lords would take a little notice of the international statistics in connection with this matter. In a 10-year average, 1958 to 1968, out of eleven industrial countries we stand in eighth place in lost days of work consequent on industrial disputes—I repeat, eighth out of eleven countries. The countries below us are Norway, Sweden and Germany. Above us are the United States of America, Italy, Ireland, Canada, Australia, France and Japan. That was the average for 10 years. In 1968, which are the latest figures I have been able to get, we stand in the seventh place out of 11. Below us are Japan, Norway, Sweden and West Germany—. where figures are not actually available. That is the correct story, but to hear noble Lords talk about the lost contracts that we are experiencing consequent upon our industrial disputes is just a lot of nonsense, because these figures alone indicate the industrial difficulties that exist. If we take the number of stoppages per thousand employees in mining, manufacturing, construction and transport, again out of 11 industrial nations we are in the sixth place: Australia, Italy, New Zealand, Ireland and France are above us.

That is the correct picture of the international situation, and surely it behoves this Committee, instead of working purely and simply on an ideological approach, to pay some attention to the actual position and to commend our trade union leaders. The noble Earl, Lord Mansfield, referred quite frankly to the fact that it is necessary to strengthen the trade union movement. It is odd that not one union acknowledges that this Bill will in any way strengthen them.

The challenge is made against the trade union leaders that they have lost control. Do these figures bear out that contention? Certainly they do not. Instead of denigrating this country in the way that is popular in the sensational Press, purely and simply for political motives and to decry the Labour Party, I think noble Lords opposite should pay heed to the correct position. We will at once admit that the picture is not all clear. There are certain weaknesses, and it is those weaknesses that we should attempt to put right and so improve upon the favourable position that we occupy in the industrial table, instead of denigrating all our efforts.


I was impressed with what the noble and learned Lord the Lord Chancellor said about " inducement ". May I ask him whether he will try to find a form of words to put in the Bill to embody what he said in reply to me? He said, in effect, that the word " inducing " ought to exclude anything that is indirect or unintentional or not premeditated. I take it that the noble and learned Lord meant what he said. So far as I know those words are not in the Bill and certainly they are not in this clause.


I will certainly bear in mind what the noble Lord has said. The actual phrase that I used about " intention " was taken from a modern text book on trade union law. I do not believe a further definition is required because the word is fairly well understood, although obviously questions can arise about different sets of facts.


I am pleased that my noble friend has raised this point, because I wanted to raise it before we adjourned. I was fascinated by the speech made by the noble and learned Lord but there is something that troubles me about this clause. I can understand that some (although not all) unofficial strikes can be defined legally as an unfair industrial action, but what I cannot understand—and not being a lawyer or a trade unionist I find it difficult to try to understand—is how the words " inducement of " or " a threat to induce a breach of contract" can be defined legally without infringing freedom of speech. That is the point which I think the noble and learned Lord did not make at all clear in his fascinating speech before we 'adjourned this Committee stage.


I gave my views badly in that speech, but there will be a second opportunity to deal with them in greater depth when we come to the particular Amendment.


I do not want to say anything about official strikes or unofficial strikes, or the quality of trade union leaders or anything of that kind, but to concentrate on what I think is the question before the Committee, which is whether subsection (1) as it is in the Bill is better or worse than the subsection which the Amendment of the Opposition proposes to 'substitute for That Amendment reproduces with two changes what is at present Section 3 of the Trade Disputes Act 1906. That, I suppose, is the section which, though having some sound things in it, contains, in the view of most lawyers and commentators of all Parties, one of the great blunders made in trade union law. I was never one of those who thought that all the existing trade union law was wrong, but I thought that Section 3 of the Act of 1906 certainly needed amendment, and so did the Donovan Commission. If noble Lords wish to refresh their memory on what the Donovan Commission said about it, they can refer to page 231 of the Donovan Report and the few pages that succeed it. Incidentally, they will find also a comment on the meaning of the word " inducement ". That part of the Report has scarcely been mentioned in the debate as far as I have heard it.

A great deal has been said about the necessity of strikes, and I have never for one moment denied that the power to strike was a necessary power that must be retained. But why should there be the assumption that a strike must always be in breach of contract? There is no such necessity. A strike can often take place without any breach of contract at all, and simply to justify the inducement of a breach of contract as though that were a necessary element of every strike is to make one of the really great blunders, and one that has caused more mischief in the history of trade union law than I think any other single mistake, with the possible exception of the universal freedom to commit torts that occurs in Section 4 of the Trade Disputes Act 1906.

Lest anybody should think that this is a Conservative or Tory view, let me quote what a Liberal said as long ago as 1927. In his little book on trade union law, Cyril Asquith, afterwards the Law Lord, Lord Asquith of Bishopstone, said this about Section 3, the section which the Amendment before us proposes to restore: It is true that a 'lightning strike ' in breach of contract is more effective than one which allows existing contracts to run out. It is often possible to profit (temporarily at least) by violating solemn engagements or procuring their violation by others. but there seems no sufficient reason for legalising the practice, whether it is indulged in in pursuit of a trade dispute or in any other connection. I hope that it will not be assumed that the right to strike necessarily involves a breach of contract and that we can never attack inducements of breach of contract without being accused of attacking the right to strike.

I have referred to the passages dealing with this subject in the Donovan Report, and I submit to the Committee that the words that the Amendment before us proposes to substitute for the words of the Bill are reproducing this much criticised feature of the 1906 Act which has caused so much damage, and even make it in one respect worse, because the Amendment gives the same immunity for inducing the breaches of all contracts which that section of the 1906 Act gives to breaches of contracts of employment only. I criticise the Government clause for leaving out the words " of employment ". Nevertheless they have in their favour that this was a recommendation of the Donovan Commission, though I think the argument on the whole was against it. At least, in adopting that recommendation of the Donovan Commission they have been logical enough to adopt some of the others. I submit that the words that the Opposition propose to put in the Bill by this Amendment would make the Bill a great deal worse. I have some criticisms of the words that the Government propose in the Bill, but they are infinitely better

LORD STOW HILL moved Amendment No. 263A: Page 70, line 31, at the beginning insert ("is')

than the words which it is proposed to substitute for them. As my noble and learned friend the Lord Chancellor said, we shall have a good deal of further opportunity for discussion of the details.

9.22 p.m.

On Question, Whether the said Amendment (No. 263NNNN) shall be agreed to?

Their Lordships divided: Contents, 30; Not-Contents, 101.

Archibald, L. Garnsworthy, L. [Teller.] Nunburnholme, L.
Bernstein, L. Henderson, L. Popplewell, L.
Beswick, L. Hilton of Upton, L. Ritchie-Calder, L.
Blyton. L. Janner, L. Sainsbury, L.
Brockway, L. Lee of Asheridge, Bs. St. Davids, V.
Buckinghamshire, E. Lindgren, L. Shackleton, L.
Champion, L. Llewelyn-Davies of Hastoe, Bs. Slater, L.
Collison, L. Lloyd of Hampstead, L. Taylor of Mansfield, L.
Delacourt-Smith, L. Milner of Leeds, L. [Teller.] Wright of Ashton under Lyne, L.
Diamond, L. Morris of Kenwood, L.
Gaitskell, Bs.
Aberdare, L. Dundee, E. Mansfield, E.
Ailwyn, L. Dundonald, E. Massereene and Ferrard, V.
Airedale, L. Ellenborough, L. Mowbray and Stourton, L.
Albemarle, E. Elliot of Harwood, Bs. Oakshott, L.
Auckland, L. Essex, E. O'Neill of the Maine, L.
Balfour, E. Exeter, M. Pender, L.
Barnby, L. Falkland, V. Rankeillour, L.
Barrington, V. Ferrers, E. Redmayne, L.
Beauchamp, E. Fortescue, E. Rhyl, L.
Belstead, L. Goschen, V. [Teller.] Ridley, V.
Berkeley, Bs. Gowrie, E. Robertson of Oakridge, L.
Bessborough, E. Gray, L. Rochdale, V.
Blackburn, L. Bp. Greenway, L. Rothermere, V.
Boston, L. Grenfell, L. Ruthven of Freeland, Ly.
Bourne, L. Gridley. L. St. Aldwyn, E.
Bridgeman, V. Hailes, L. St. Helens, L.
Brooke of Cumnor, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) St. Just, L.
Brooke of Ystradfellte, Bs. Sandford, L.
Brougham and Vaux, L. Hankey, L. Sandys, L.
Buchan, E. Hanworth, V. Savile, L.
Burnham, L. Harvey of Tasburgh, L. Sempill, Ly.
Conesford, L. Henley, L. Somers, L.
Cottesloe, L. Ilford, L. Stamp, L.
Cowley, E. lnglewood, L. Swansea, L.
Craigavon, V. Jellicoe, E. (L. Privy Seal.) Templemore, L.
Craigmyle, L. Kemsley, V. Tweedsmuir, L.
Cranbrook, E. Killearn, L. Tweedsmuir of Belhelvie, Bs.
Crawshaw, L. Kilmany, L. Verulam, E.
Cromartie, E. Lansdowne, M. Vivian, L.
Daventry, V. Latymer, L. Wakefield of Kendal, L.
Davidson, V. Lothian, M. Ward of Witley, V.
Denham, L. [Teller.] Lyell, L. Windlesham, L.
Digby, L. McFadzean, L. Wolverton, L.
Drumalbyn, L.

Resolved in the negative, and Amendment disagreed to accordingly.

The noble Lord said: This Amendment is designed to cure what I think is only a typographical omission. In my copy of the Bill dated March 25, 1971. which I think is the latest one, the word " is ", which I should have thought plainly should be there, is omitted. If the Government Front Bench can give me an indication that that is so, I need not trouble the Committee and take time over explaining. Is that so?


If the noble Lord moves his Amendment, I am going to accept it.


I beg to move.


I am grateful to the noble Lord.

On Question, Amendment agreed to.

9.30 p.m.

LORD DIAMOND moved Amendment No. 263PPPP:

Page 70, line 33, at end insert (' or (c) his actions are subsequently ratified or endorsed by a trade union or independent organisation of workers directly concerned.")

The noble Lord said: It is in the confident hope that this Amendment will achieve the same response as the previous Amendment, and in almost the same time, that I move the Amendment on the Marshalled List. I think I need trouble your Lordships only very shortly at the present stage. Of course I may be moved to say a few words more, depending on the answer I receive. I think the Amendment makes our position quite clear. It is that we are anxious to ascertain the position and, if the position is not already sufficiently satisfactory, to improve it so as to make quite clear that the disabilities stemming from this clause, which we do not accept but which we have to deal with, are disabilities which will be expunged by the simple process of a trade union in good faith ratifying what has been done in accordance with its normal practice.

I do not want to put it any higher than that at the moment. It is a perfectly normal occurrence for an unofficial strike to be called, for the issue concerned to be examined by the trade union and for the trade union to endorse and ratify the strike. As things stand at the moment I understand that the unofficial strike and everything stemming from it would be caught by this clause. The noble and learned Lord, the Lord Chancellor, might say that that is going too far and that what would be caught would only be actions of the kind envisaged by the clause so long as the unofficial strike continued to be unofficial.

What I want to make clear is that our view must he that once a strike has been made official and, if you like, in good faith, it is retroactive as it quite naturally should be, to the original situation, to the time when the unofficial strike was called. It must be the case that if the trade union has endorsed it, it means that the circumstances which gave rise to the unofficial strike were of a kind to justify an official strike. Therefore the disabilities stemming from an unofficial strike should not apply from the very beginning. The turning of the strike from an unofficial to an official strike is, in my view, no more than a clarification of the original position. We therefore hope that the Government will accept the view that that should be so and will tell us whether it is necessary to have an Amendment to the Bill in order to produce that situation.


There is relatively little to say about this Amendment. I am afraid there is a difference of policy here and I should just like to say shortly what it is and why it is. I think the noble Lord, Lord Diamond, expressed the present position a little less accurately than the noble Lord, Lord Hughes, in his introduction to the last Amendment. It is not, I think, the case that an unofficial strike and anything stemming from it would give rise to a claim for compensation. The moment the union declares an official strike, that, I take it, is the moment at which the umbrella goes up, and it is our intention that that is the moment at which it should go up. Again I am not trying to rake over differences, but this is the point of difference between us. We do not think preliminary action by an unofficial strike, however unconstitutional or however ill-advised, ought to be capable of subsequent sanctification by a subsequent official action by the union. This is a matter of judgment, of course, and that is our judgment. If it were otherwise, we think that the effect would be to produce results wholly different from that which we desire and I think from that which the noble Lord desires. It would put it in the hands of a militant and unofficial leadership to bring pressure to hear upon a union to ratify what they had previously done, perhaps under threat of a breakaway movement. This, we think, is undesirable, and should not be encouraged.

The remedy is one of two things, in our view: either the union should give authority to their shop stewards to act with the authority of the union, in which case they must hear the responsibility for what they do but the union official, the shop steward, is blameless; or the shop steward should refer to his union before he calls an unofficial strike. I fully accept that there is a class of case, to which we shall come in due course when the noble Lord, Lord Stow Hill, or the noble and learned Lord, Lord Gardiner, move an Amendment in their name, as to which we shall have to discuss cases where emergency action is taken or action is taken which is so manifestly morally justified that the courts ought to be allowed, or so they say, to wink at the unofficial character of what is done. But, speaking now in general terms, we think that either a trade union ought to be prepared to take responsibility for what happens when one of their union officials acts on their authority or, alternatively, a union official, conscious of the fact that he has not got authority, ought to refer to his union authorities before he acts. Therefore we do not accept this Amendment. I think it is a simple question of policy. I do not think one can say a great deal about it. As I say, I think I have put it plainly, and I do not think there is much chance of an intermediate position being arrived at.


The noble and learned Lord the Lord Chancellor has put extremely clearly, if I may respectfully say so, the Government's reaction to the proposal contained in this Amendment. I thought myself, when I read it, in view of the last decision we reached, that the Government would have some hesitation in accepting the whole of it, because it includes the words " or independent organisation of workers ", and I should imagine that the Government would not be disposed to accept that. But, short of that, and if one fastens on the words are subsequently ratified or endorsed by a trade union and assumes that the other words are left out, I would respectfully submit to the noble and learned Lord that there is a rather stronger case for it than he envisaged. I should like to try to put that case. The position as Clause 92(1) leaves it, in so far as the shop steward himself is concerned, is that he is guilty of an unfair industrial practice if he acts outside the scope of his authority in inducing a walk-out. I am sure we agree on that; and that is perfectly clear. The question is whether that as applied in practical situations produces a fair result in all or, indeed, in the majority of circumstances.

I know that the noble and learned Lord had great experience of industrial disputes in the course of his practice. I have myself read very many union rules. He will know, and noble Lords who concern themselves with this sort of thing will know quite well that those rules were often dratted many years ago—ten, twenty, fifty years ago—and he will have seen many copies of that sort. I am sure he has been as uncertain as to the precise meaning of the wording used in many of those rules as I have, and as I am sure anybody else, including members of a trade union, have been when they have studied them. Over and over again, when one tries to apply these rules, one finds their result is uncertain, and proceedings take place within the union which are the source of dispute and difference inside the union. To go to the position of the shop steward, I would respectfully submit, so far as this coincides with my experience, that this is a sort of situation not infrequently arising. Reference has been made to the intolerable foreman who will not mend his ways. The situation becomes strained until one day something happens which just overspills the cup. The foreman is quite intolerable and the shop steward says, " Let's go out." I should have thought that in saying that to people who are ready to agree with him, he is inducing them to break their contracts because they walk out without notice.

When one looks at those unofficial strikes one finds that that is a not infrequent situation. Looking at it from the outside one queries why they should strike about that particular incident; looking at it from the inside, and from the point of view of the workers, one realises that they have been goaded by intolerable, unreasonable behaviour until one day something snaps and they will not put up with it any longer. The shop steward who in those circumstances, says " Let's go out ", has induced them. The industrial practice has been gone through and the question arises whether it is unfair within the meaning of Clause 92. That depends upon what the rules mean which set out the scope of the shop steward's authority. I have looked at many rules and I have often wondered what is a shop steward's authority. He has committed an unfair industrial practice unless he has brought the men out " within the scope of his authority " on behalf of the trade union. Over and over again it is difficult to say whether he is within or without the scope of his authority. It may be that he acted hastily and was without; it may be that he misconstrued his mission and exercised his authority in a way which perhaps on calmer reflection he should not have exercised it. But he has done it.

Those facts are reported to the regional organiser or to the executive of the union. When they go into the facts—and that may take some time—they may think that this shop steward was certainly acting as they would have expected him to act. When the full facts are ascertained and the whole course of conduct which led up to the walk out comes before those in the higher tiers of the union who have to adjudicate they may say that he had no alternative and that you cannot expect people to put up with that sort of thing. They are the people to say: " Whether or not he acted strictly within the scope of his authority, we are ready and glad to ratify what he has done. He would be betraying our members if he had allowed the situation to go on. It might have continued for ever unless somebody did something about it."

That is a situation in which the union would be glad to ratify and justify what the shop steward did, and they would be acting unjustifiably if they did not; for they would thereby be undermining the authority of the shop steward and he might just as well not be there. If you want to order the relations on the shop floor, then the shop steward should be supported by the union—who are ready to do it. Nevertheless, if you look at the antiquated rules, he was just outside the scope of the authority vested in him. The Amendment proposes that in that sort of situation he should not be personally liable if the union, on consideration ex post facto, has ratified what he did on their behalf. When the curtain falls he clearly has been technically guilty of an illegal and unfair industrial practice.

The inducement, the phrase " Let's walk out ", was uttered while he was acting in the assumed circumstances outside the scope of his authority. Therefore he has no defence. If he is brought before the court he is liable to pay compensation that can be quite heavy. Some little time may elapse before the circumstances are gone into and have been ratified ipso facto. Before that time elapses, some reason may have arisen to award quite a substantial sum against that man by way of compensation. It is in order to protect him against that sort of danger and in order to support his position and maintain his authority, therefore contributing to the orderly relations on the shop floor that this Amendment is put forward. Otherwise, what happens? Many noble Lords have said in the course of our discussion that activities of shop stewards are beneficial and essential and that you will not get orderly relationships unless you have a really responsible body of shop stewards to work with, and that the community should be grateful to them for what they have done over the years. If the shop steward thinks that his authority may be flouted or may be demonstrated not to have existed; if his own personal assets are at risk and he cannot afford to pay, he will act with much greater trepidation and will not dare, as he is a human being and probably has a family to support, to step into the breach and protect those who ought to be protected. I submit that that is an unsatisfactory position. I submit that the case for amendment is a strong case, and I should be very grateful if the noble and learned Lord would say that he will reflect further upon the kind of situation I have described to see whether something could not be done to maintain and support the position of shop stewards in that sort of situation.


I have listened most attentively to my noble friend Lord Stow Hill in his observations in regard to the shop steward and the people coming out on unofficial strike. A situation can arise where the shop steward has advised his men that by walking out they would he doing wrong, they would be breaking the law and that in a sense they have no case whatever even for negotiation. This can happen. But in view of what he has had to say, they are not prepared to accept his advice and they say, " This may be your opinion but we are going to down tools and we are going out." They have gone against all the advice expressed by the shop steward in regard to the situation.

What does the shop steward do after that? As the noble Lord, Lord Stow Hill, said, he contacts either his district or national office and informs them that the men have come out on strike. Immediately someone comes from the district office or the head office and they have a meeting. The men are called together and told by the district officer or the national officer that the case cannot be dealt with until such time as they go back to work. That is the condition of the agreement between the two parties. I am talking about the miners. This is the way they work. You have a situation that the officials will not deal with their case and the management will not be prepared to meet the trade union leader until such time as the men resume work.

What will be the position of the shop steward who is forced into a situation whereby the membership are not prepared to accept the advice that he offers? Yet because of that he is taken away with the crowd, as it were, and because of the position that he holds officially, he is the shop steward responsible to the membership of that particular trade union, he is the one who is there to be shot at. I do not think that the noble and learned Lord the Lord Chancellor would like to see such a situation arise regarding an individual who had tried to the best of his ability to exert leadership and give information which would allow a meeting to take place with the management and avoid misdeamour being committed. I hope that the noble and learned Lord will give serious consideration to this matter. If there is to be leadership in a trade union the individual responsible must be prepared to say to the members, " You are wrong." But if what they are doing is right, then he may say. " Boys, you are right to take this line of approach, and I can negotiate on your behalf."

9.50 p.m.


I do not know whether it would be convenient if I speak now. I do not wish to curtail the noble Lord in any way but he may wish to respond to what I have to say. The noble Lord, Lord Slater, and the noble Lord, Lord Stow Hill, put two quite different cases. I should like to deal first with that presented by the noble Lord, Lord Slater, because I think it the easier. In order to create an inducement to break a contract, which is the situation postulated by Clause 92, the contract has to be broken as the result of the inducement by the person against whom a complaint is made. It therefore follows that in the set of circumstances postulated by the noble Lord the shop steward is wholly innocent. He cannot be got at. This is so whether the Amendment is accepted or not. The men have walked out against the advice of the shop steward. That is absolutely plain beyond a peradventure and I ask the Committee to accept that as fairly certain law.

The noble Lord, Lord Stow Hill, put a slightly different case. He began by saying that many union rules are old and obscure, and with that I agree wholeheartedly. By way of commentary I would say I hope that one of the results of this clause is that they become less old and less obscure. I did venture to say, in relation to the last Amendment, that a union owes it to a shop steward, and the steward is entitled to demand of his union, that he knows the extent of his authority. This is the first thing I would say in answer to the noble Lord, Lord Stow Hill. Granted that existing rules are in need of amendment and renovation I hope that one result of this Bill, whatever other results it may will be to lead unions to revise their rules and to give shop stewards the kind of clear indication of the extent of their authority to which in my judgment they are entitled. Otherwise I would agree that they are put in a difficult, perhaps even intolerable, situation.

The noble Lord went on to build up a case about what I might call the intolerable foreman. I must say I agree that this is a graphic description of what could happen in industrial relations, but it is something which ought not to happen for quite a number of different reasons. In the first place, if a situation is building up to breaking point, surely it is the business both of the management and also the shop steward to have some communication with one another in order to establish that this situation is not going to be allowed to continue.

If the shop steward finds as a matter of experience that management will not listen, surely the sensible thing for him to do is to get in touch with his union and say " Look, I cannot say whether or not it will break to-morrow or the next day, but this situation is bound in the end to lead to a breach, and there will come a moment at which I want to call the people out. I want your authority to be given clearly to me, aye or no, that I am to be entitled to call them out ". He is entitled to ask the union that. If the union then say that he cannot, then he does it at his own risk. If the union says this sounds a reasonable request and for this purpose they will give him authority, then they ought to be prepared to recognise in advance that they give him authority, and take responsibility for what he does. In that case he gets out that way.

That is, broadly speaking, the answer to the case which the noble Lord, Lord Stow Hill, pur persuasively. The union rules need clarification when there is a doubt about them. When there is a situation building up it is the job of both a good union and good management to communicate with one another before breaking point is reached. If through some fault of management —which is what the noble Lord is postulating in the particular case he cited to me—the union official on the spot, the shop steward, says that the men are not listening, that a situation is hound to develop requiring a decision, then he ought to get authority from his union in advance of its happening. That is what I feel the answer is.

If the Amendment were carried in its present form my own conviction is that one would get nothing but pressure from a militant minority to endorse action, however unconstitutional and however ill advised, possibly under the threat of a breakaway union. That is exactly what we want to avoid. I said at the beginning, and again I am never anxious to paper over differences, that there is a difference of policy between the parties. I hope I have made clear what our policy is. I am afraid I am not yielding on this point, although I hope the arguments I have presented are neither impolite nor irrelevant, nor wholly unreasonable.


The arguments which the noble and learned Lord presented are both reasonable and clear to us, but they lack a persuasive quality. Let me say why I have not so far been persuaded. I have not even been persuaded that there is a philosophical difference, and that is why I am encouraged to return to the point. The noble and learned Lord overstated it when he said there was this difference of approach. He was helpful in being frank about it. It is a very bold statement to make in this House. We are all after the one thing, namely, reduction in the number of unnecessary, unofficial strikes. The only question really is which is the best way of doing this.

Nobody on this side wants to encourage circumstances in which official strikes will arise. It is quite clear that there can be occasions when unofficial strikes are inevitable, and they will in due course.be ratified and become official strikes. They may be inevitable. The circumstances which the noble and learned Lord described were quite possible, but in many cases they are incapable of achievement. It just does not happen, and for practical reasons is incapable of happening, that every single shop steward would succeed, if he tried, in getting hold of the branch officer, discussing it all with him, communicating with head office. and turning it into an official strike in advance. It just could not happen. having regard to the number of men on the ground. A union which was so organised that it had so many officials available to be at the service of every single shop steward who wished to consult an official would find itself with an intolerable financial burden. I am afraid that those ideal circumstances, which the noble and learned Lord postulated, are lacking.


The noble Lord said that on some occasions unofficial strikes are inevitable. Is he implying that conditions which cause a strike are unknown to the shop stewards? Would they not be aware of the fact that feelings were rising for some little time beforehand, and therefore would they not be in a position to acquaint the union with the situation and avoid what might be an unofficial strike?


That is just the point which the noble and learned Lord put, and which I said is an ideal situation, and on the facts, as confirmed by the experience of my noble friends who have been trade union officials all their working lives, is incapable of achievement. Though shop stewards might talk about it, might wish to have full communications, to have the matter fully considered and turn it into an official strike from the beginning, this might be incapable of achievement, and here we have an example of an inevitable unofficial strike. What we are concerned with is not merely reducing the number of unofficial strikes. If it were, the Bill would be wholly successful, because in my view the Bill would achieve this result; that most of the unions who have this difficulty will, in advance, give such authority to the shop stewards that the shop stewards will be protected from the beginning. That will be the only safe course for the unions to pursue. And lo and behold, the Government will say, " We have achieved a victory "—a slightly Pyrrhic victory—" no more unofficial strikes."

I am not dealing with something which is a million miles away. This Bill is largely framed in this part of its philosophy on American practice, which has succeeded in reducing the number of unofficial strikes and putting in their place something like four times the number of official strikes we experience, comparing like with like—that is to say, the number of working days lost per 1,000 of population. The last figures I saw were four times, but they may be out of date, because these figures take a little time to collect. I do not care whether it is four times, three times, or twice. All that would happen would be a transfer from unofficial strike to official strike. To what extent will that help our economy? Not at all.

In my view it would be likely to damage it further, because an official strike is more difficult to deal with than an unofficial strike. Once a strike becomes official, there is all the paraphernalia—all kinds of other questions would have to be considered, negotiations would be more extensive, and decisions would have to go to much higher authorities than would otherwise be the case. What would be speedily settled unofficial strikes would become longer official strikes. The Bill as it stands would have the practical effect of reducing the number of unofficial strikes, but at the expense of jumping energetically out of the frying pan straight into the fire, and that is not a course which would appeal to your Lordships. Therefore, I am suggesting that we should think a little more and try to devise some method of achieving our original purpose of reducing the number of unnecessary unofficial strikes. I would hope that in due course all unofficial strikes would be regarded as unnecessary. As time moves on and as opinions move with the times, and as the effect of our many debates is gradually felt, I think that public opinion begins to move. Your Lordships should feel satisfied that the time spent in this Chamber is not to be measured only by the number of Amendments which are dealt with but also by the impact on public opinion of what is said here We hope that we are all moving in the right direction. In the course of time, unnecessary, unofficial strikes may become very few indeed; but I do not think that the rejection of this Amendment will help. It will hinder.

I now turn to the purely practical aspects of the matter, having demonstrated, I hope, that there is no deep philosophical divide between us which is incapable of being bridged. We are all after the same thing. Which course, the one in the Bill or the one in the Amendment, is the more likely to reduce the number of unofficial strikes without increasing correspondingly the number of official strikes? That is what we have to decide. If the noble Lord sticks to his present point of view—of course there will be some pressures of the kind he has mentioned and there are dangers in the course we propose—I think there will never be another opportunity of preventing the occurrence of an unofficial strike by the shop steward having the knowledge that he has the authority to say, " If you strike you do so yourselves ". That is a case of no inducement.

Alternatively, where inducement is involved, the shop steward has the authority to say, once a strike has taken place, " It was a strike which we thought was inevitable, the union has supported us and we are all right." In all other cases, in my view, if this Amendment is not adopted there will be a situation in which there will be virtually no unofficial strikes. I think there are likely to be more official strikes with the Bill as it stands than with our Amendment. That is a purely practical point of view and I may be wrong about it. But I think we are right and I do not think the position could be worse than it would be under the Bill.

I now turn to the area where there is at the moment a philosophical difference—that is, under the second part of the Amendment; namely, where independent organisations of workers are directly concerned. My noble friend Lord Collison has reminded us that the recommendation in Donovan with regard to withdrawing the umbrella from non-registered unions was a majority one, not a unanimous one. Donovan recommended that unions ought to register. But it is skating over the matter in a most superficial way to leave it at that, because " register " can mean anything. We know what it meant in Donovan, and that is the kind of registration which has previously existed and which still exists—registration to which unions are already committed. In other words, 85 per cent. of trade unionists—the vast majority of trade unionists—are already members of trade unions registered under the 1871 Act, and it is that kind of registration which was contemplated by Donovan. Therefore, to say that because

Donovan recommended that the umbrella should cover only registered unions, it means that it should only go up over unions registered under this Bill, is a totally unjustifiable and illogical statement, because under this Bill the registration is substantially different. We have been over the ground: registration produces far more burdens than advantages, as is evidenced by the fact that those to whom registration is available have decided so far, almost en bloc, not to register. The unions ought to know best; they are the organisations concerned.

So I am saying that it is wholly wrong to say that, just because Donovan says the umbrella should only go up over registered unions, this Bill should say that the umbrella should only go up over unions registered under this Bill. I think we are entitled to ask for the second part of the Amendment as well as the first. But if the noble and learned Lord wants to split it in two parts and say: " We cannot accept this Amendment as it stands, but we are very conscious of the difficulties envisaged in the first part of the Amendment and we should like to reconsider that ", it would be a helpful statement. But I am bound to say that if the noble and learned Lord continues in his present view, we must divide the Committee against it.

10.12 p.m.

On Question: Whether the said Amendment (No. 263PPPP) shall be agreed to?

Their Lordships divided: Contents, 28; Not-Contents, 99.

Archibald, L. Garnsworthy, L. Nunburnholme, L.
Bernstein, L. Henderson, L. Phillips, Bs.
Blyton, L. Hilton of Upton, L. Popplewell, L.
Brockway, L. Janner, L. Ritchie-Calder, L.
Champion, L. Lindgren, L. Sainsbury, L.
Dollison, L. Llewelyn-Davies of Hastoe, Bs. [Teller.] Shackleton, L.
Davies of Leek, L. Slater, L.
Delacourt-Smith, L. Lloyd of Hampstead, L. Stow Hill, L.
Diamond, L. Milner of Leeds, L. [Teller.] Taylor of Mansfield, L.
Gaitskell, Bs. Morris of Kenwood, L.
Aberdare, L. Balfour, E. Bessborough, E.
Ailwyn, L. Barrington, V. Blackburn, L. Bp.
Airedale, L. Beauchamp, E. Boston, L.
Albemarle, E. Belstead, L. Bourne, L.
Auckland, L. Berkeley, Bs. Bridgeman, V.
Brooke of Cumnor, L. Gowrie, E. Rankeillour, L.
Brooke of Ystradfellte, Bs. Gray, L. Redmayne, L.
Brougham and Vaux, L. Green way, L. Rhyl, L.
Buchan, E. Grenfell, L. Ridley, V.
Burnham, L. Gridley, L. Rochdale, V.
Caldecote, V. Hailes, L. Rothermere, V.
Conesford, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) Ruthven of Freeland, Ly.
Cottesloe, L. St. Aldwyn, E.
Cowley, E. Hanworth, V. St. Helens, L.
Craigavon, V. Harvey of Tasburgh, L. St. Just, L.
Craigmyle, L. Henley, L. Sandford, L.
Cranbrook, E. Hertford, M. Sandys, L.
Cromartie, E. Hood, V. Savile, L.
Daventry, V. Ilford, L. Sempill, Ly.
Davidson, V. Inglewood, L. Somers, L.
De Clifford, L. Jellicoe, E. (L. Privy Seal.) Stamp, L.
Denham, L. Kemsley, V. Strathcona and Mount Royal, L.
Digby, L. Killearn, L. Swansea, L.
Drumalbyn, L. Kilmany, L. Templemore, L.
Dundee, E. Lansdowne, M. Terrington, L.
Dundonald, E. Latymer, L. Tweedsmuir, L.
Ellenborough, L. Lyell, L. Tweedsmuir of Belhelvie, Bs.
Elliot of Harwood, Bs. Mansfield, E. Verulam, E.
Essex, E. Massereene and Ferrard, V. Vivian, L.
Exeter, M. Mersey, V. Wakefield of Kendal, L.
Falkland, V. Mowbray and Stourton, L. [Teller] Ward of Witley, V.
Ferrers, E. Windlesham, L.
Fortescue, E. Napier and Ettrick, L. Wolverton, L.
Goschen, V. [Teller.] Pender, L.

On Question, Amendment agreed to.

10.20 p.m.

Loan DELACOURT-SMITH moved Amendment No. 263QQQQ: Page 70. line 36, leave out from (" an ") to end of line 37 and insert (" independent organisation of workers; any reference to an industrial dispute shall include a dispute between workers and workers and a dispute concerning the recognition or non-recognition of a trade union.")

The noble Lord said: As the Committee will see, this Amendment falls into two parts. The first part will be familiar to noble Lords opposite: it deals with the question of " independent organisation of workers " being inserted in the Bill. I am not really optimistic enough to believe that noble Lords opposite are going to have a sudden change of heart on this subject. But the second half of the Amendment seeks to introduce an element of clarity which we hope is acceptable, or which we hope can lead to confirmation that it is the intention that the Bill should cover as industrial disputes, disputes between workers and workers and disputes which concern the recognition or non-recognition of a trade union.

I do not think it is necessary for me to spend long in arguing this point. It is sufficient to establish the fact that as a matter of practice disputes can and do arise which are disputes between workers and workers or which relate to the recognition or non-recognition of trade unions. It may be that noble Lords opposite will argue that in fact such situations, at any rate in respect of recognition, will not, or should not, arise if the provisions of the Bill are completely effective. This is perhaps showing a degree of optimism which goes beyond what one may expect will be realised, and it seems to us to be useful to clarify the point at this stage that the term " industrial dispute " includes disputes of this order.


The noble Lord, Lord Delacourt-Smith, has proposed his Amendment with admirable and indeed impeccable conciseness; and I will seek to be as concise although answers are not always as short as questions. He is right in thinking that during the last five minutes my noble friends and I have undergone no change of heart with regard to unregistered organisations of workers, which must be a subject of dispute between us. I would only say this in reply to remarks of the noble Lord, Lord Diamond: that I have never understood what there is in Clause 63 or Schedule 4 which makes people afraid of registration under the Bill or which makes registration under the Bill necessarily more onerous than that under the 1871 Act. In fact, it is simply the kind of provision which any orderly law with regard to the conduct of associations would necessarily envisage.

As regards the rest of the Amendment, again the noble Lord, Lord Delacourt-Smith, was commendably brief. He will see from page 116—that is the definition clause—that there are disputes between workers and workers which come within the definition of " industrial dispute "; namely, disputes about who does what? it I may again use perhaps over-simplified language: the allocation of work between one set of workers and another. This, we think, is something with which an employer is legitimately concerned, and therefore a dispute about that does come within the range of industrial disputes.

As regards recognition, which is what this Amendment is primarily concerned with, we do riot think it is right to hold the umbrella over the head of recognition disputes—and that for the kind of reason which the noble Lord has suggested. We do not think that a dispute between two unions as to which of the two should be recognised, assuming them both to be respectable and both to be independent of the employer, ought to be a matter on which the employer should ordinarily be subjected to industrial action. We have done our best to avoid this by providing the machinery, which may or may not be used but which we hope will be used and which is intended to be used, for the recognition of the sole bargaining agent; and in the last resort the sovereign authority for deciding which union will be recognised will be the workers in the plant itself on a ballot, subject, of course, to the supervision of the C.I.R. and of the Court. We think that that is the right way to settle those disputes as between the employer and the workers in the plant. Therefore, we do not think that it is necessary to hold an umbrella over the heads of those who indulge in strikes for the purpose of settling that sort of dispute.

Furthermore, one must not forget the Bridlington Rules, which noble Lords opposite have invoked and which more than once in this debate I have endorsed. One thinks that if for some reason unions are either afraid to invoke or do not wish to invoke the machinery which we have provided in the Bill for the recognition of the sole bargaining agency, their manifest duty is to use the Bridlington agreement. It may or may not be effective, but we think that in this day and age when other people's jobs are involved, other people may be thrown out of work, the public may be injured and in extreme cases even the national economy can be damaged, the unions ought not to indulge in industrial action in order to settle a recognition dispute between two rival and respectable unions. For those reasons I respectfully say that the Government cannot accept this Amendment, although I appreciate the spirit in which it was moved.


I wonder whether the noble and learned Lord could look at the matter again between now and the Report stage of this Bill? I recognise the force of many of the points which he has made in commenting on the Amendment, but there are other aspects which ought also to be taken into account. First, so far as disputes between workers and workers are concerned, there can arise disputes which, at any rate to me, do not appear to be disputes about allocation of work. For example, disputes can arise where one group of workers is in one degree or another in a supervisory position as against another group of workers. Disputes can arise in that context which I should have thought would not come under the heading of disputes about allocation of work.

So far as the recognition of disputes is concerned, again of course I accept the force of what the noble and learned Lord has said. I think he will agree that in fact over the last two years or so the number of disputes and disturbances which have arisen from recognition differences has been very small indeed. This is obviously something much to be desired because, as he rightly said, one would not expect this to be the kind of issue which should give rise to a stoppage of work. In what he says about the determination of a bargaining unit and a bargaining agent, he is perhaps going further than I would be disposed to go in assuming that at any rate in the foreseeable future all our arrangements in this industrial relations scene will be covered under those provisions or under other provisions of the Bill.

I suspect that a good deal of industry will still remain under what are broadly called " voluntary arrangements ", and one cannot rule out the possibility that recognition disputes could arise. I think it would be unfortunate if they did, for the reasons that I have already given, and for the reason which the T.U.C. itself has emphasised on more than one occasion. At the same time, I do not think one can rule out the possibility that in rather exceptional circumstances such a dispute could arise, and I think it would be unfortunate if it were not brought under the heading of an industrial dispute. To accept this situation is not in any way, as it were, to give any additional status to disputes of this kind, or indeed to give them any degree of approval. It is simply to recognise that as a matter of fact they may arise, and that if they should arise it is better for them to be brought within the definition of an industrial dispute.


The noble Lord, Lord Delacourt-Smith, has asked me to look at this matter again. I do not wish to be provocative about this at all, because this is a continuing debate and obviously I shall consider both what the noble Lord has said and what anyone else may say if they wish to bring thoughts to our minds. I did not mention the conciliatory functions of the C.I.R., quite independent of the sole bargaining machinery, and our present thought is that this kind of protection ought not to be given. I agree that it may happen from time to time. If it were not likely to happen occasionally, I do not suppose either the noble Lord, Lord Delacourt-Smith, would be proposing or I should be opposing his Amendment. But our thought remains that such disputes ought not to be given protection. Clause 92 is based upon the presupposition of a deliberate breach of contract by persons involved—that unregistered unions ought not to be protected when they indulge in this sort of thing—or, if unregistered unions do it, they ought to do it without breaking contracts as provided in Clause 92. The noble Lord has put his points persuasively. I cannot commit myself to anything, but I do regard this as a continuing debate. In other words, my mind is never closed about this until the end of the day. If either the noble Lord or anyone else wishes to put fresh arguments to us, of course we shall listen to them.


There will be opportunities for either side of the Committee to take the initiative and draw attention to the matter again, and in the circumstances I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

10.32 p.m.

THE LORD CHANCELLOR moved Amendment No. 263BBB Page 70, line 40, leave out from (" agreement") to (" but") in line 42.

The noble and learned Lord said: This Amendment, and Amendment 263000, are both paving Amendments to the future definition in Clause 157, and have no bearing on the substance of Clause 92. In those circumstances, I might be allowed to move them formally.


The noble and learned Lord has suggested that these are merely paving Amendments and that we shall come to the point of substance at a later stage in the Bill. If we are to regard them in that way we, on our side, must say that these are Amendments to which we take a great deal of exception and to which we shall return at the later stage to which the noble and learned Lord, the Lord Chancellor, referred.

LORD DELACOURT-SMITH moved Amendment No. 263RRRR: Page 71, line 1, leave out from beginning to ("so ") in line 2 and insert ("does not include").

The noble Lords said: Subsection (3)(b) of Clause 92 extends—as we see it, quite arbitrarily—unfair industrial practices to breach of contracts of employment which have implied or incorporated terms of a collective agreement. To us this exception contained in subsection (3)(b) seems anomalous and our Amendment seeks to remove it. However, I regard this basically as a probing Amendment. As I understand it, a breach of a dispute agreement which was not incorporated in this way in individual contracts of employment would escape. This does seem to us to be an arbitrary distinction, and I would be grateful if the noble and learned Lord could comment upon it. I beg to move.


This is a rather sophisticated point; I may get it wrong, but I think I have it right. First of all, the expression " contract " for the purposes of Clause 92 does not include a collective agreement or any part of a collective agreement. In other words, it is not an unfair industrial practice for any person in contemplation of furtherance of an industrial dispute to induce or threaten to induce another person to break a contract within the meaning of Clause 92. But this is not, I must hasten to confess, in order to be candid, entirely benevolence on our part. It is because Clause 34 already deals with that situation, which no doubt noble Lords will recall as having taken place at some time in the Middle Ages in this debate. At any rate, it is not entirely benevolence but is designed in order to prevent an overlap between the two clauses. Subsection (3)(b) does not, I think, therefore introduce anything new; it simply provides an exception to the exception in (a), by including for the purposes of the main provisions of Clause 92 so much of any contract of employment as is implied or incorporated in the contract by reference to a collective agreement.

This is simply to say this. Obviously individual contracts of employment between workers and management are, of course, contracts to which in the ordinary course the union itself is not a party. The parties to that contract are the employer on the one hand and the individual worker on the other. On the other hand many—and it is sometimes rather difficult, I would venture to say sometimes impossible, to say which—but at any rate many terms of the individual worker's contract have in fact been negotiated for him by a union in the course of a collective agreement. It has always been an intention of Clause 92 to hold up an umbrella over actions to induce a breach of contract, whether of employment or any other contract except the collective agreement, dealt with under Clause 34, by a registered trade union and its officials acting within its authority. It is not intended to hold the umbrella over an unregistered association or a third party extraneously making trouble; that umbrella does not extend to them.

Therefore, it is said that the exception to Clause 92, which is designed not out of benevolence, as I have candidly admitted, but because Clause 34 applies, does not extend to those terms in an individual contract of employment which have been negotiated as part of a collective agreement, and we do not think it should. The noble Lord asked me what it means and I have tried to explain as clearly as I can; I hope I have got it across, but it is slightly sophisticated, and if it is not clear I must apologise.


Not only is the noble and learned Lord's explanation sophisticated, but I wish that when the Government had started this Bill they had not made a sort of legal jig-saw puzzle, but had put against such clauses " See Clause 34 ".


I greatly sympathise with the noble Baroness, but we are not allowed to do so by the present rules under which Bills are printed. The noble and learned Lord, Lord Gardiner, and I had quite an interesting discussion about that in quite a different connection, but he will be very much encouraged by what the noble Baroness has said.


I am bound to say that the complexity of points like that, and the difficulty which we have on both sides of the Committee in appreciating these points and the reasons for them, are very strange when one looks at the setting of this particular subsection which we arc considering. This is a part of the clause which, as the earlier discussion on it has made clear, has very wide practical effect on people holding positions as shop stewards, and other local representatives in industry. It seems an extraordinary state of affairs that they are going to be covered by provisions which are so difficult for us, after discussion and examination, to appreciate, and it makes one realise the great uncertainties which many people in industry are bound to feel about the impact which the provisions of the Bill will have upon them. Despite those observations, as I indicated, I put this forward as a probing Amendment. We should like to consider what the noble and learned Lord has said, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


I beg to move Amendment No. 263CCC.

Amendment moved— Page 71, line 4, leave out from (" agreement ") to end of line 6.—(The Lord Chancellor.)

On Question, Whether Clause 92, as amended, shall stand part of the Bill?

10.43 p.m.


I rise because I think it would be useful to make a brief reference to the Amendment which my noble friends and I had on the Marshalled List, but which in fact we have withdrawn because other noble friends have put down an Amendment which proposes a new clause at a later point in the Bill. I think it would be appropriate to make a brief reference to this point, because the terms of the clause, as it stands, have given rise to anxiety that individuals in the Press, or on television, making a comment upon an industrial relations situation might be brought within peril by this clause as having induced a breach of contract. The noble and learned Lord, at an earlier stage in the discussion of the clause, indicated that he would be prepared to make some reference to this, and I think it would be useful if he could refer to this now, since anxieties were expressed upon it in another place which were not altogether allayed.


I am very much obliged to the noble Lord. I recognise that, for some reason which I have never wholly been able to understand, genuine anxieties have been expressed about the particular matter to 1 which the noble Lord has alluded. May I start with the definition of " inducement ", about which I have been asked a number of questions. Clause 92 deals with inducement of breach of contract. Inducement involves five elements, not all of which are relevant to this point. The first is that you must, before you can induce a breach of contract, have knowledge that the contract exists.

In the old days when we had interference with the matrimonial relationship, the first thing you had to do was to know that the parties were married. That is the simplest example I can think of. You must know that there were contractual relations between the bodies or, at any rate, know the facts which would ordinarily lead you to so infer. Secondly, there must be an intention, and this is the most essential part for the purposes of the present issue. You must intend to persuade people to break their contract. Unless you do it deliberately, you cannot be guilty of inducement. Thirdly, there must be an actual breach of the contract which you have induced; that is to say, your inducement must be successful and not unsuccessful. If there is no breach of contract, you may have done your worst but you have not achieved the reality of a tort. Fourthly, of course, I need hardly say that there must be a casual relationship between the breach which followed and the inducement which caused it. Lastly, there must be damage before a cause of action arises.

If you take the case of a newspaper or, for that matter, a television broadcast, I think you will see in every case that a mere report—for instance, of a public meeting—lacks one or more of the elements which I have sought to describe. Secondly, a mere comment upon the merits of a dispute lacks the elements which I have intended to describe. If you say, for instance, " I think the Ford workers are right ", or " I think the employers are right in such-and-such a dispute ", or give a fairly colourful description of why you think so, you are not intending to make them break their contract. You are indulging in ordinary comment upon a matter of public interest. If you report the inflammatory words of a union member or of an employer in the course of an industrial dispute, not because you are trying to achieve any result of interference in the dispute, but because you think people ought to know what is going on, which is the proper motive of a newspaper or of a television network, then, again, the elements of inducement are absolutely lacking. Therefore, I have never been able to understand the anxieties, genuine as I appreciate them to have been, which have been raised by the existence of this clause.

I derive a good deal of confirmation of my view from the following reflection. Inducement to breach of contract is of course a tort. It is a tort across the whole field of contract. Until 1906 it was a tort even when it was in contemplation or furtherance of a trade dispute. I have been to very great trouble to find if there ever was a case before 1906 in which a newspaper or any medium of communication was found guilty of inducement to the tort of breach of contract in furtherance of a trade dispute, and I found none. I have also been to very great trouble to find out if ever there was a case over the rest of the range of tort—that is to say, after the umbrella lifted over inducement in furtherance or contemplation of a trade dispute under the Act of 1906—and not only have I failed to find one myself, but none of those whom I have asked to look for me have found one either. This might be just good fortune, but for the fact that, quite independently, I had formed the view that it could not happen, and I am confirmed in my view that it could not happen by the fact that it has not happened.

The only possible exception that I could find to counter my view was a very significant case, and that was not a case of inducement to breach of contract, but incitement to murder. There was a case in about, I think, the latter part of the 19th century—I forget the name of it—in which a Russian royalty had been murdered, and a German language newspaper in London which circulated among a group of exiles wrote an article which said in effect, " This is what the Godly Russians have done; you must do the like to the German monarchy ", and they were convicted. But you see the difference between what I have been discussing and that case.

It is of course always possible to use what I may call para-journalism for a special purpose. Most of us (although I am not one) if we have fought elections for Parliament, have produced what are called election newspapers. This is not a newspaper in the ordinary sense, but it is something designed to achieve a particular object, to persuade the voters to vote in one way. Although I have not done it myself, I know it is a perfectly legitimate feature of our democratic life. It is not quite the same thing as the The Times or the Daily Mirror, but it is designed to achieve the purpose of acting on people's minds. It is possible to think of a case where a newspaper is brought out not simply as an act of journalism but to persuade people to break their contracts. I cannot conceive that Clause 92 would not come into play then, but I have tried to contemplate how any of the existing media could get into trouble and I certainly cannot see that they could achieve that result.

May I say this in conclusion, while I am trying to answer the question which the noble Lord quite legitimately raised? We have, I think, achieved a Press which is one of the most responsible and one of the freest in the world. We are always abusing it, just as we always abuse politicians, and I suppose that we politicians, and I hope newspapermen, have a proper sense of humility engendered by this constant denigration to which both of us are subjected, usually each by the other. If I may reflect for a moment upon the nature of the freedom of the Press, it has not been achieved by giving special privileges to newspapers. It has been achieved by extending to newspapermen the freedom which we all enjoy. That is to say, it is not a question of privilege that a newspaper can publish what it thinks and believes to be true; it is simply part of the right of the ordinary citizen to do the same. That is why the freedom of the Press is so solidly based, because it is based not on privilege but upon the general liberty which we all enjoy.

There are plenty of things in this Bill on which I have expressed a certain degree of doubt, or perhaps diffidence, but whether I am right or not about those I have absolutely no doubt of what I have been saying in the last five minutes. I see no ground for the anxieties, although I recognise that they are genuine. I do not believe that any legitimate newspaper need lose a moment's sleep about the phraseology or intentions or results of Clause 92.

10.53 p.m.


The noble and learned Lord, the Lord Chancellor has made a most interesting and valuable speech. Speaking for myself, I would agree with practically all of it. I would not venture to prolong this particular discussion, especially as we will have to come back to it when we get to Clause 132, but for the fact that the noble and learned Lord said that there undoubtedly does exist in the Press some considerable anxiety whether the terms of the Bill may impinge upon them. It is simply because I think it desirable that they should know that their anxieties are understood in the form in which they have been expressed, to me at any rate, that I venture to put before the Committee and the noble and learned Lord the type of situation with regard to which they feel some anxiety.

It is as I understand it really this. I quite agree with the noble and learned Lord that in practically every case, suppose any question arose as to whether there was an inducement by a Press article, the answer would be that there is not in the circumstances an inducement. Even if there were doubt, a defence like " fair comment on a matter of public interest " would really be more accurately descriptive of what had been written. But the kind of situation which might arise, I suppose, is this. Take a provincial newspaper in a town in which there is a very large plant at which a very large number of workers are employed; a newspaper which circulates in that town and which is read by practically all the the citizens in that town, including those workers who work at the plant.

Now differences arise, and the situation comes about when the parties are almost on the verge of taking strike action. The situation is tense, and a local, militant union leader, well known and respected locally, makes a very fiery and inflammatory speech. A journalist on the staff of that newspaper, acting from perfectly honourable motives, reports that speech in toto, or at any rate a very large part of it, including the inflammatory material in it. Then there appears newspaper comment in that same edition, in the editorial comment, or perhaps in comment by the same journalist who transcribes or reports the inflammatory speech, and the comment is in forthright terms and represents a belief strongly held by the editor or the journalist, as the case may be, and is in effect an indication that the commentator, whether the editor or the journalist, very strongly agrees with the person who has delivered the speech.

He may express his agreement in, shall I say, moderate terms, which would come within the description used by the noble and learned Lord, " fair comment ". A reader might say, " This is a perfectly reasonable thing for the editor to say when he comments on that speech. If he agrees with it in general, then he is perfectly right in saying so ". On the other hand, perhaps inadvertently, perhaps through an error of discretion, the editor or journalist may go rather further than that, and he may say in terms which are really unnecessarily emphatic that he utterly agrees with what the union leader says and he would have every sympathy with the workers of they came out on strike, as suggested and urged by the union leader.

That is the sort of situation which I think those who feel anxieties have in mind, and it is thought that in that sort of situation the comment could possibly constitute inducement and could have the four characteristics which the noble and learned Lord predicated as being necessary for there to be an inducement. There would be knowledge of the contract; there would be, in the assumed circumstances, an intention, I suppose (that is to say, an intention carried on the sympathy which the editor or journalist feels) that those who listened to the speaker should follow his advice; damage would result; and there clearly would be all the elements of knowledge present. In that sort of situation there is the anxiety to which I have referred, that possibly the person who comments might find himself within the channels of Clause 92.

We all would share and re-echo precisely the words that the noble and learned Lord has used with regard to the freedom of the Press in this country. All of us who know the noble and learned Lord know how very sincerely and deeply he feels what he has said, as we all do. Therefore, when the Committee come, as I hope they will in due course, to consider the new clause which is down on the Marshalled List, I hope they will approach it in the knowledge that that is the type of situation with which it is meant to deal. If noble Lords have had an opportunity to glance at it, they will see that the safeguard that it imposes to protect the perhaps unwise journalist, who has used language which was perhaps extravagant or unnecessarily emphatic, is that, provided it could in a broad sense be said to be fair comment on something which is of public interest, then there can be no question of any action being brought against him, either by virtue of Clause 92 or of any other provision of the Bill. 1 thought it right, as the matter had arisen and as it perhaps will be some days before we come to Clause 132, to say what I have said in order that it should be known that the anxieties held are borne in mind.


I listened with care to the noble and learned Lord the Lord Chancellor. Despite that—it may be that I am a little obtuse; and he will inform me on that point when he comes to reply—I still do not know whether there is anything in the Bill which says that conduct amounting to an unfair industrial practice could not take place abroad. We are rolling with joy into the Common Market. We are trying to build a legal framework around human acts. Despite what any learned Lord may say, this is impossible. We are going into the Common Market and will have French—and from now on I shall be practising my French. Nous avons ici un offre de Gascogne. President Pompidou is giving us a Gascon offering. Noble Lords opposite all know what a Gascon offering is. We have one when French workers will be coming into the Welsh pits. Noble Lords may laugh, but this is absolutely true. A young French boy will come into the Welsh pits from some farm in Normandy—and the Welsh and the Normans get on very well and are very close—and he will write back to his mother telling her what he thinks of the new trade union conditions prevailing in South Wales. The mother will send this to the local newspaper and it will be read locally. He will be calling the Welsh miners and their leaders all sorts of names. Has he committed an unfair industrial act? When we get into the Common Market there will he full mobility of labour. There will be Italians and others—though not yet the Spanish; they will come later—coming to work here.

The second point I would make is that I have counted 80 industrial practices. No judge or young lawyer will be able to cope with them all. I am only asking for information. We can still do that without being incarcerated. For example, it is an unfair industrial practice to threaten or induce any action to prevent or hinder a person from exercising or asserting any right of performing any duty under the Bill. Actually, it is a ready-made charter for anybody to haul anybody else in any union or any group of workers before a court for almost anything. Let us peg them down. To strike or threaten to strike would be illegal. For me or for any French boy to try to secure the dismissal of a Welshman cutting coal faster than he does in the pits would be an unfair industrial action. It would be illegal to induce or threaten to induce industrial action aimed at persuading an employer to break an order or to employ somebody in a position of power in a place in contradiction to the C.I.R. It would be an unfair industrial action to strike or take any industrial action while the C.I.R. is considering a special position.

Because it is late, and because we have had such courteous answers from noble Lords opposite, we have allowed some venomous Amendments to go through. The real truth is that no judge will know what the House of Lords, or the House of Commons, were talking about when it comes to trying cases before the courts. If poor Ariadne, with her ball of string, tried to hook her way through the catacombs of this Bill, with its 162 clauses and nine Schedules (in one of his answers my noble friend Lord Stow Hill had to illustrate one clause and talk to another and go back to another, and forward to another, each side of the wicket) if Ariadne had tried to struggle through that, she would not have been able to find her way back to the sunshine from the bowels of this Bill—the alliteration is appropriate at this time of night. So far as I am concerned, all that the noble and learned Lord Chancellor said to me is just pillars of cloud. It cannot be applied in practice in any court in the land when it comes to a vital industrial issue. For this Government to bring this forward at a moment when we are wishing to go into the Common Market and to have mobility of trade unions throughout Europe, is to me an illustration of lack of vision and of the fact that they are not going to last very long as a Government.

11.6 p.m.


I must apologise for the fact that, having moved the first Amendment, circumstances took me away from the Committee for a while. The noble and learned Lord the Lord Chancellor will forgive me if, speaking briefly to the Question whether Clause 92 stand stand part of the Bill, I refer to some of the things that he was good enough to say regarding the first Amendment. The noble and learned Lord started by referring to the fact that there were a number of misunderstandings about Clauses 92, 93 and 94, some of which arose on Amendments to Clause 92. I came back in time to hear him speaking about the misunderstandings which he felt existed. I do not intend to say more about that, but I wish to say that I noted he said that in his opinion the word " induced " contained a connotation of deliberate action and therefore fears I had expressed about the use of the word were groundless.

I want to refer to some of the things which the noble and learned Lord said subsequently. After clearing up the misunderstandings he emphasised that there were genuine differences between the views of the Government and of the Opposition on these matters—I am paraphrasing him—and he did not expect that anything said by one side or the other would prevent a Division from taking place at the end of the discussion on the Question whether Clause 92 shall stand part of the Bill. In that he was right. We have not been persuaded that we should allow this clause to go without a Division. I am satisfied that that is the right course. Some of the things which the noble and learned Lord said indicated clearly the difference between Government and Opposition on the matters contained in this Part of the Bill.

One of my noble friends—I think it was the noble Lord, Lord Leatherland —referred to the effect of this clause on shop stewards and said that they were to be handcuffed and manacled as a result of it. Again paraphrasing the noble and learned Lord—but not, I think, in any way misinterpreting the sense of what he said—I think his reply was that, whatever may be the effect, it is not the intention of the Government to handcuff shop stewards. A little later, in reply to views expressed about the complications in this Bill. and particularly in this section of it, the noble and learned Lord said, " We are not trying to make things difficult; on the contrary, we are trying to make the law more simple ". He then went on to say: "It is not always easy to turn complicated human relations into legal phrases ".

That statement from him is exactly what we have been saying, time and time again, on this Bill. And in attempting to do this, the Government are attempting the impossible. If we are right in saying that it is impossible, the Government are bound to fail. It seems to me that the noble and learned Lord made a concession to the point of view we are putting forward when he said that, whatever might be the result, it was not the intention. We believe that the results of these clauses will be contrary to the noble and learned Lord's sincere intention, and because we are much more interested in results than in intentions we shall seek to divide the Committee on whether the clause shall stand part.


May I, as a layman, put a question to the noble and learned Lord the Lord Chancellor? I understood him—and it would be much easier for me, as a layman, to read the OFFICIAL REPORT before I commented—to lay down four conditions which covered this area of inducing a breach of contract, and the fourth of these was that the inducement should be effective. But I cannot understand how that would apply to the phrase " threaten to induce ", because that is not inducement in itself. It is a threat to do something and I do not think that a threat can he effective in itself. I should be grateful if the noble and learned Lord would explain how " threaten to induce " comes within the four conditions which he laid down for " to induce ".


To threaten is not the same thing as to do. It is as simple as that. To threaten to bring about a breach of contract is not the same thing as to bring about a breach of contract. It is simply using words in their ordinary senses.


May I, with diffidence, raise a small point? Except in circumstances of a trade dispute, an actual tort is when A knowingly induces B to break a contract with C, as a result of which C suffers damage, unless it is justifiable. On Second Reading I raised the fact that this Bill does not in any way provide for a defence of justification, which every citizen has always had in an action of tort. I do not propose to discuss that now, because I have an Amendment down at a later stage dealing with it, but I observed that in dealing with this subject the noble and learned Lord the Lord Chancellor said that, of course, a person would have to know that there was a contract. If that is so, why does not Clause 92 say so? Why does it simply say " to induce "? It does not say, "knowingly induce ". And will not every judge, knowing that common law tort is to knowingly induce a breach of contract, inevitably think, from the way in which the clause is drafted, that Parliament here intended to provide that an inducement, whether offered knowingly or not, constituted an unfair industrial practice?

11.15 p.m.


May I answer the last part first? Knowledge is essential to inducement. I took this factor from a well-known text hook on trade union law and therefore I do not think that it is necessary to insert the word " knowingly ". Its only effect would be to cast doubt on the necessity of knowledge in other cases where the word " inducement " is used. My understanding of " inducement " is that it involves knowledge. If the noble Lord can bring me authority to suggest that I am wrong and the textbook on which I have been relying is wrong, obviously I shall try to think again. But I think he will find that I am right, and if I am right then the conclusion follows.

The noble Lord, Lord Hughes, says that he is going to divide the Committee. I am not complaining, but I should like to say that when I said that, whatever the result on shop stewards—it was not our intention to handcuff or manacle them —I spent a good deal of time explaining exactly why I did not consider that that would be the result. A person hearing the noble Lord's speech—though I am sure he did not wish to imply this—without having heard my speech on which his was a comment, might have inferred that I had not already dealt at length with the point.


If the noble Lord will permit me to say so, an element of opinion enters into each case. I have no doubt that this is the noble Lord's genuine opinion, and he gave reasons why he thought he was right. But the fact remains that it could conceivably have a result different from what he might expect.


I do not accept that. The noble Lord, Lord Leatherland, accused us of intending to handcuff shop stewards, and I told him that it was not our intention, whatever might be the result. It was a direct answer to a direct charge, and I do not believe that the noble Lord can build the edifice on it that he now seeks to do. I frankly did not understand the argument of Lord Davies of Leek, because I thought that no matter how complicated Clause 92 may seem, one thing was plain—the Common Market has nothing to do with it. I still think so. Perhaps it will encourage the noble Lord, Lord Davies of Leek, if I tell him that it is quite unlikely that anything done abroad could constitute an unfair industrial practice under this Bill; because " unfair industrial practice " is limited to actions which are defined in the Bill and none of them applies to actions done abroad. Nor does our entry or non-entry into the European Economic Community affect the Bill at all, even though the noble Lord gave us a beautiful example of his impeccable Parisian French in the course of his argument.

I do not altogether accept what the noble Lord, Lord Hughes, says about complication. I have never sought to pretend that any legislation going into 160 clauses can be anything but a little difficult to understand. It is not like the front page of the Daily Mirror, but it is a great deal easier to understand than, for instance, the Companies Act or the Income Tax Act, which in practice have worked reasonably well for quite a long time and not all the people who have to operate them are necessarily profound lawyers. The point I was seeking to convey to the noble Lord, Lord Hughes, was that you do not get rid of complexities in the law by not legislating about them. The law applies in these matters whether or not we pass this clause. The only thing I would dogmatically say on it is that it is a jolly sight plainer and more simple than the present law—described by Lord Donovan's Commission as a " maze " and described by my noble friend Lord Conesford in equally derogatory terms, out of one of the works of the late Lord Asquith of Bishopstone. This is a much clearer statement of principle, whether you agree with it or not, and a far less complicated one, than the situation which noble Lords will find expounded as well as it can be in Citrine's Trade Union Law.

If I may return to the noble Lord, Lord Stow Hill, I fully recognise that the kind of situation which he has described has given rise to anxiety. But I still adhere to the view, and adhere to it without doubt, that the anxiety is misplaced. However unwise a journalist may be does not render him liable to the process described in Clause 92. What has to be present is a deliberate intention. However hard the noble and learned Lord strained, and however eloquent he was, he did not succeed in importing to my mind that element into the case which he postulated. The journalist was first of all reporting an inflammatory speech, which he was fully entitled to do, and stating in a leading article or elsewhere that he agreed with the sentiments in it. But unless it could be said that he was deliberately interfering, for the purposes of creating a breach of contract, the deliberate intention seems to me to be lacking.

When we come to consider the noble Lord's Amendment we will consider it on its merits and hammer that out: I do not think I start with an absolutely closed mind on that. I think, on the whole, it will not diminish anxiety, but tend to increase it if I resile at all from the position that I adopted: that this presents no terrors for a journalist acting in good faith, even if he is a very unwise one, which only a limited number of them are. Having said that, I think there remain two main differences between the Panties. One is that noble Lords opposite want to hold the umbrella over unregistered trade unions; and the other is that they want to hold the umbrella over a number of induced breaches of contract which we

Resolved in the affirmative, and Clause 92, as amended, agreed to accordingly.

11.31 p.m.

Clause 93 [Industrial action in support of unfair industrial practice]:

On Question, Whether Clause 93 shall stand part of the Bill?

would not protect. There we know where we are: there is a difference between us, and it is no good papering it over. But I think I have said all I can to leave the difference plain, and at the same time to avoid misunderstanding on things which are not plain.

11.23 p.m.

On Question, Whether Clause 92, as amended, shall be agreed to?

Their Lordships divided: Contents, 96; Not-Contents, 25.

Aberdare, L. Ellenborough, L. Mansfield, E.
Alexander of Tunis, E. Elliot of Harwood, Bs. Monk Bretton, L.
Amherst of Hackney, L. Essex, E. Mowbray and Stourton, L.
Balerno, L. Exeter, M. Napier and Ettrick, L.
Balfour, E. Falkland, V. O'Neill of the Maine, L.
Barrington, V. Falmouth, V. Pender, L.
Beauchamp, E. Ferrers, E. Rankeillour, L.
Beaumont of Whitley, L. Fisher, L. Redmayne, L.
Belhaven and Stenton, L. Fortescue, E. Rhyl, L.
Belstead, L. Gage, V. Ridley, V.
Bessborough, E. Goschen, V. [Teller.] Rochdale, V.
Blackburn, L. Bp. Gowrie, E. Rochester, L. Bp.
Boston, L. Gray, L. Ruthven of Freeland, Ly.
Bridgeman, V. Greenway, L. St. Aldwyn, E.
Brooke of Cumnor, L. Grenfell, L. St. Helens, L.
Brooke of Ystradfellte, Bs. Gridley, L. St. Just, L.
Brougham and Vaux, L. Hailes, L. Sandys, L.
Buchan, E. Hailshatn of Saint Marylebone, L. (L. Chancellor.) Savile, L.
Burnham, L. Sempill, Ly.
Caldecote, V. Hankey, L. Somers, L.
Chesham, L. Harvey of Tasburgh, L. Strathcona and Mount Royal, L.
Conesford, L. Henley. L.
Cottesloe, L. Hertford, M. Swansea, L.
Cowley, E. Hood, V. Templemore, L.
Cranbrook, E. Inglewood, L. Terrington, L.
Crawshaw, L. Jellicoe, E. (L. Privy Seal.) Tweedsmuir, L.
Cromartie, E. Kemsley, V. Tweedsmuir of Belhelvie, Bs.
Davidson, V. Killearn, L. Vivian, L.
De Clifford, L. Kilmany, L. Wakefield of Kendal, L.
Denham, L. [Teller.] Lansdowne, M. Ward of Witley, V.
Digby, L. Latymer, L. Windlesham, L.
Drumalbyn, L. Lothian, M. Wolverton, L.
Dundee, E. Lyell, L.
Archibald, L. Gardiner, L. Phillips, Bs.[Teller.]
Bernstein, L. Garnsworthy, L. Raglan, L.
Brockway, L. Hughes, L. Ritchie-Calder, L.
Champion, L. Lindgren, L. Sainsbury, L.
Collison, L. Llewelyn-Davies of Hastoe, Bs. Shackleton, L.
Davies of Leek, L. Milner of Leeds, L. [Teller.] Stow Hill, L.
Delacourt-Smith, L. Morris of Kenwood, L. Wells-Pestell, L.
Diamond, L. Noel-Buxton, L.
Gaitskell, Bs. Nunburnholme, L.

The noble and learned Lord the Lord Chancellor has sat with the utmost gallantry the whole of the afternoon and a good deal of the night, answering legal conundrums put to him. It is for that reason that I feel I owe him an apology for adding to their number, which I confess it is now my intention to do. But it involves a matter of principle and what I have to ask him involves what I should describe as a respectful disagreement with something he said when he was making his speech on the last question, as to the territorial limits within which unfair industrial practices can be committed.

We are discussing Clause 93, which deals, I suppose one can put it loosely, with sympathetic action. I should like to assume a situation which I would describe as follows. A large international company manufactures its product, say, in this country and then ships it to Rotterdam to sell abroad. It transports it first to London Docks and loads it on ship at London Docks, transports it to Rotterdam, and unloads it at Rotterdam in order to sell it on the Continent. It is one of the very large companies, many of whom one can think of, who have large connections on the Continent. I suppose this will be a situation which will become more frequent if we enter the Common Market.

The question I should like to put is this. If one assumes that the company is in dispute with the dock workers in Rotterdam, what would be the inhibitions upon what is described as sympathetic action at the London Docks? Suppose the London dock workers refused to load the merchandise of this company on to the ships at London Docks in order that that merchandise might be transported to Rotterdam. The reason I put the question is that I have been asked to indicate what I think, at any rate, considering the terms of this Bill, is the effect of possible sympathetic action in order to assist unions overseas.

I should have submitted to the Committee—and I will put the view before the noble and learned Lord in particular —that when one looks at the definition of an " unfair industrial practice ", contained for example in Clause 92, one sees there is nothing in that clause, or so far as I am aware anywhere else in the terms of the Bill, which would produce the result that an unfair industrial practice can be committed only within our shores. I should have thought that if an unregistered union in Rotterdam embarks upon strike action in Rotterham. inas-much as the union certainly would not be registered under the provisions of this Bill it would automatically be committing an unfair industrial practice. I think that must be right, and I would ask the noble and learned Lord to consider whether he was not mistaken in saying that an unfair industrial practice could happen only in this country in terms of the Bill and the definitions of the Bill. I submit he was mistaken about that, and that an unregistered union in Rotterdam—that is to say a Dutch union, which obviously would not be registered under the terms of this Bill and therefore could not possibly be protected by what the noble and learned Lord has called the " umbrella "—could, within the meaning of Clause 92, commit an unfair industrial practice. I see no reason why not. I may be mistaken, and I should he grateful to hear whether the noble and learned Lord knows of any provision in the Bill which would show that I am mistaken.

Assuming that that is right as an initial proposition, one then turns to Clause 93 and asks what the answer is to the problem I put with regard to the London dock workers. They hear of the action taken by the Rotterdam dock workers and in a deliberate design to assist the Rotterdam dock workers they refuse to load the merchandise on to the ship in London, so that it cannot be transported to Rotterdam. Their intention in so doing is to bring industrial pressure upon the international company which is engaged in that class of operation. I would respectfully present to the Committee the view that if the London dock workers, with the intention of assisting the Rotterdam dock workers, refused to load the merchandise, they would automatically, under Clause 93, be engaging upon an unfair industrial practice. I am sure the noble and learned Lord will at least agree with me that it is an important question, because if the view that I am tentatively presenting for consideration is right, it might create the consequence that on a number of occasions the unions in this country, registered under the provisions of the Bill or not, under the umbrella, as they thought, would be engaged upon an unfair industrial practice. So I should have thought that it was at least open to argument that the consequence of Clause 93 would be that henceforth all such sympathetic action with any overseas union was out. If any union does it in this country, whether registered or unregistered, they automatically must commit an unfair industrial practice, for the obvious reason that the foreign union would not be registered under the terms of this Bill.

I do not want to examine the consequences of Clause 93 in relation to all the other industrial practices which are constituted under the provisions of this Bill. As has previously been said, there are a large number of them, but some untoward consequences may certainly result unless the utmost caution is exercised, even by unions who think they are safely sheltering under the umbrella by being registered under the terms of this Bill. I will not go through them, but one has only to think, for example, of Clause 34, which makes it an unfair industrial practice to break a collective agreement. Should the collective agreement have been entered into by an unregistered union then any union, registered or not, which acts in sympathy with that union, of necessity commits an unfair industrial practice under Clause 93. It is a far-reaching consequence. I do not say that that is not precisely what the Government intend, and the noble and learned Lord may say that it is exactly what they do intend. Perhaps I should correct myself: I said a collective agreement broken by a registered trade union—


The noble Lord said " unregistered ".


An unregistered trade union. It need not be unregistered; for the purpose of my illustration it is equally an unfair industrial practice under Clause 34 if the union which breaks the collective agreement is itself a registered union. So one has to be very careful not to do anything to assist any other union, registered or otherwise, engaged in an industrial dispute, if there is any risk of a breach of a collective agreement. Those are just two situation which I pose in order to indicate the scope of this particular clause. It is very far-reaching and I should have thought that it would virtually outlaw sympathetic action in a large number of situations. I quite understand that the words in the clause " aid and abet "—borrowed from a rather unfortunate context, I should have thought, in this particular connection—are words which are narrow in scope, and we should rejoice in their being narrow, and cer- tainly I would not ask the Government to enlarge them. But narrow as they are, henceforth a great many unions which think that they are comfortably ensconced under the umbrella and are not offending against any of the provisions of this Bill may find they are liable to be taken before the Industrial Court and ordered to pay compensation on the scale which goes up to £100,000 in the case of unions with adequate membership. If that is right, and if I have analysed the clause correctly, it should be stated—and I am quite sure that the noble and learned Lord will indicate it with his usual clearness—precisely what it is the Government want to do. I dare say that is precisely what they do want to do. I have put my points, and I should be most grateful if the noble and learned Lord the Lord Chancellor would give what may be his provisional view, as he may wish to reconsider it at a later date.

11.42 p.m.


As the noble Lord indicated, I have had no previous notice of these various points. I shall attempt to reply to them as best I can in the circumstances, but I shall take advantage of the noble Lord's last sentence, that I may wish to reconsider it on second thoughts; instant law is not always good law.

However, before I do so, I should make it plain in advance, because it may have some bearing on the degree to which the noble Lord, Lord Stow Hill, wishes to pursue the matter on this occasion, that there are several significant improvements which the Government feel it may be necessary to make to the present Clause 93, and a suitable amendment will be available at the Report stage. When we come to discuss this matter at the later stage it will be that clause which I hope we shall be discussing, and not the admittedly defective clause which is at present before the Committee.

As I confessed earlier, the only reason why the Amendment was not ready for this stage was that I was offered an Amendment which I did not much like, and I asked for a much simpler one, of which I think I now know the content, but which could not be put down in time. I apologise to the Committee, but I like to have it as good as possible, and it was due to my pernickety character that it was not provided by the draftsman. Advantage will be taken of any observations which have been made in debate at the Committee stage, including those just made by the noble Lord, Lord Stow Hill.

The present view of the Government is that the following clarifications are necessary. In the first place, 1 am going to abolish the words " aid and abet ". When the Labour Government were in office, and I was in another place, I said I thought they ought to be burnt by the common hangman, and although I suppose in Government I should not allow myself such freedom of diction, I dislike the words particularly, the more especially as I have never been able to find out why they are two different things. I know what " aid " means, and perhaps the noble and learned Lord, Lord Gardiner, knows what it means, but what does " abet " mean? I have never seen the word, except in context with the word " aid ". The conclusion I have formed is that the words " aid and abet " is a single word, not three words, and I am going to have it out of this clause if I possibly can. I have every hope of being successful in that ambition, having abused the last Government for introducing it in another Bill which was theirs.

More substantially, I think, it does require to be made clear that the subsequent sanctioning by a trade union of an unofficial industrial action will not be actionable as an unfair supporting action under Clause 93. We touched on ground which was fairly close to it, but which did not actually cover it, at an earlier stage. My own view is that the clause is clear enough on that point to carry conviction, but it did not carry conviction in another place and the Solicitor General made an undertaking that it would be made clearer than it now is; and it would have been made clearer by this stage had it not been for the fact that I did not like the Amendment presented to me which would have made it clearer.

My own view is that it is unnecessary, because when a union officially endorses an unofficial action it does not do so in support of the unofficial action, although most people might use language to sug- gest that it does; what it really does is to take official action in respect of the original grievance. I would be prepared to elaborate and support that argument in considerable detail, but as what we are going to do is to make it plain in new words I simply state my opinion without bothering to support it. We also want to make it clear, on the other hand, that it will be unfair for a person to organise industrial action in support of an unfair industrial practice originally committed by himself. Again, for what it is worth, I am convinced the clause means that now, but again I shall not justify that view, because it will be made clear in the amended clause, even if it is not plain now.

To deal with the noble Lord's particular connundra, I would say first of all that I think, with great respect to him, that he has overlooked the fact that it is a general rule of construing Acts of Parliament that they do not bite on foreign territory unless the contrary is clearly implied or asserted, and it follows from that, I think, as surely as night follows day, that the mere fact that a Dutch union is not going to be registered under this Act—which of course it will not be, as the noble Lord correctly said—will not make its actions the actions of an unregistered union so as to attract the disadvantages of an unfair industrial practice in this country. Acts of Parliament do not, unless the contrary is clearly stated or implied, have extra-territorial effect. I think the whole of the noble Lord's argument was based upon a failure to take full account of that general rule of law. However, as I said, he did not give me notice of the point he was going to raise, and although I am fairly confident my answer is a conclusive one I reserve to myself to take advantage of the escape he afforded me in his last paragraph.


I am most grateful to the noble and learned Lord, and I do apologise for not giving him notice. It is quite impossible to answer all these questions of law off the cuff, and I am sorry I had not told him the point earlier.


I do not complain at all. Ministers are here to be as helpful as they can, and I have been as helpful as I can; possibly I would have been more helpful if I had known, but, on the other hand, lots of points occur to critics and they are entitled to the best answer one can give at the moment.

If I can pursue this point one stage further, if I am right in saying that the action of the Dutch union in Rotterdam would not attract the penalties of an unfair industrial practice under Clause 92, or whatever other clause was invoked, then Clause 93 could not bite upon the action by a union in this country, because in order to attract the penalties of Clause 93 it has to he in furtherance, or aiding and abetting as it is at the moment, of a primary industrial action unfair under some other clause. If the Dutch action was out, the other action would be out too; at any rate, it would not be caught by Clause 93.

The same kind of answer is available to me in relation to the rather more sophisticated point which the noble Lord put about Clause 93. He has to remember that the words " in contemplation or furtherance of an industrial dispute " occur twice in subsection (1). In order to be caught by Clause 93, the action must be taken, or threatened to be taken, in contemplation or furtherance of an industrial dispute as defined by Clause 158 on page 116. Secondly, his purpose or principal purpose in threatening or taking the action, must be to further another person in doing, in contemplation or furtherance of that dispute"— that is the original dispute— anything which by virtue of this Act is an unfair industrial practice on the part of that other person ". It is a fairly limited prohibition, even as the matter stands at the moment. It is in fact to say that action in furtherance or contemplation of an industrial dispute, which is taken to further an unfair industrial practice by another person in contemplation or furtherance of that dispute, shall itself be unfair. The object is that if you did not have a clause of this kind, however drafted and drafted carefully, you would in fact be making a monkey out of the law.

I do not think I can take the matter much further this evening, partly because I am very conscious of the fact that I am discussing the phraseology of a clause which I have recognised to be defective, and which I have promised to amend by the Report stage. I hope that when we come back to the clause on Report stage, we shall be discussing the amended version and not the existing version, which is unclear in parts. The little I have seen of the proposed Amendment indicates to me that it will be a great deal more acceptable to both sides of the House. It will also take account of the debates we have had, and therefore some of the points may be taken care of in a way which I cannot at present forecast. Having done the best I can, I hope that the noble Lord will give me credit at any rate for good intentions. To some extent I have covered the ground which he put to me.

11.53 p.m.


I think that the exchange which has taken place between my noble friend and the noble and learned Lord has been a very interesting one. I am sure that the noble and learned Lord will appreciate the importance of the point that has been raised, because more and more trade unions are beginning to feel that inevitably they will be involved in greater international contacts, closer international relationships and, as a result, a necessity to act from time to time to a greater degree than in the past in concert with trade unions in other countries. Even apart from any development in the direction of the E.E.C., the point is a very important one. It is bound to cross the minds of some of us, at any rate, that it looks as though, under this legislation, we may have the slightly bizarre position that it will be quite proper and unexceptionable for a union in this country to do certain things in support of a union in another country, for which they would be in danger if they took similar action in respect of a union —particularly a non-registered union—in this country.

This is a clause which, as it stands, strikes against both the registered and the unregistered trade union. The noble and learned Lord has been very candid about the necessity for some rephrasing of the clause. But it is, as we see it, aimed in effect at undermining the principle of trade union solidarity, which is a principle about which trade unions as organisations and trade unionists as individuals feel very keenly. The clause is aimed at action taken, as the noble and learned Lord has emphasised, in support of other action which is itself unfair. There are, I think, 22 unfair industrial practices under the Bill, so there is a fairly wide range available to anybody who wants to take action in support of an unfair industrial practice. We are glad that the clause is being looked at again, consistent with the statement of the learned Solicitor General and with what the noble and learned Lord himself has said, and we shall look forward to seeing it at Report stage. But even though the clause is under consideration, perhaps I may make one or two observations about it.

The first thing that puzzles me a little is how an organisation—and it may be an individual under this clause—contemplating action will know whether the action for which it feels an initial sympathy is or is not an unfair industrial action. As I understand it, this is a matter which could well not be determined for some considerable time after the action has been initiated. There are many people within the trade union movement who will show spontaneous sympathy with another group of workers, whether belonging to a registered trade union or to an unregistered one, who find themselves in dispute and are perhaps in financial difficulties or require moral or practical support of other kinds.

I think we welcome the fact, as the noble and learned Lord has told us, that the phrase " aid and abet " is to disappear. We did not like the phrase for very much the same reasons as he disliked it. But I am bound to say that we very much hope that when he looks for a substitute for it he will take great care not to find a phrase which is any wider in its application, because I fear that if he did that, much as we dislike " aid and abet ", we should feel some degree of regret at seeing it replaced by something else.

Whatever phrase is used, whether " aid and abet " or, as the noble and learned Lord proposed—we think rightly, subject to the qualification I have made—some other phrase, it has to be read against the substance of subsection (2), and it really will seem strange if a group of people render themselves open to some action being initiated against them if they have organised a " whip round " in support of a group of other workers who are on strike. The " whip round " may well be intended purely for the relief of hardship; indeed, this is normally the case when collections are taken for trade unionists who are on strike. I would ask the noble and learned Lord to ask himself, when he is considering the revision of this clause, whether it is seriously desired to seek to expose to some kind of penalty individuals who organise a collection for fellow-workers who are out on strike.

I must confess that I am still in some doubt about the phrase " organising … irregular action short of a strike ". We had some discussion upon this earlier, but there still seem to me to be uncertainties about this phrase. Will it be the case, for example, that to " black " the work, or " black " the goods of a particular firm which may be engaged in a dispute, which is a traditionally recognised method and form of showing trade union solidarity, will be a form of action which will fall under subsection (2) of this clause? Or, to take another example, will the banning of overtime be regarded as irregular industrial action short of a strike "? Or refusing to do work which would otherwise be done by those who are on strike? I cannot see how that could be brought within any of the terms in the subsection, but I would welcome an assurance that there is no likelihood that such a refusal to do work normally done by people who are on strike, whether they are members of a registered or an unregistered trade union, will be regarded as action which gives rise to any possibility of the law being put into motion under this clause.

Then I would like to ask about the situation in which an action or a strike begins as unofficial and is subsequently accepted by the union concerned as official. How does this stand under the clause as it is drafted? Is this a point which the noble and learned Lord is prepared to look at in the course of redrafting the clause? It could very well be that after the trade union had decided to ratify and give authority to unofficial action, the issue of some financing of that action arose, possibly to assist people who had run into hardship because of the unofficial action. Could this financing be done without breaching the clause we are discussing? We are glad to know that this clause is being I looked at again, but we hope that it will be looked at from the point of view of narrowing its scope substantially, not of widening it in any degree.


I do not know that I can answer all of that, and perhaps the noble Lord, Lord Delacourt-Smith, did not intend that I should. What he said will be noted and taken into account. One point I can answer. If official action is taken to adopt unofficial action, it is our intention not to make that " unfair ". I explained that I did not think it was done under the existing phraseology, but the Solicitor General's undertaking was to make it plainer that it is under the existing phraseology. It is primarily for that reason that my own desire was to make a simpler clause which contained simpler words to the same effect. For the reason I gave, I think this clause would do, but it did not satisfy criticism in another place and my right honourable and learned friend there promised that an Amendment would be introduced here, and that would be taken care of.

As regards " whip-rounds " I may have got the point wrong, but as I understand it (again I speak subject to correcting myself at a later stage) I think the noble Lord overlooked this. What is contemplated in Clause 93 is primarily action in support of a primary action. I do not understand that it necessarily involves " whipping-round ". What it involves, for instance, is striking in support of another strike, and that would involve those inside an organisation in which the action is taken. I should like to consider that again. What I can promise the noble Lord is that when we put the re-cast clause before the House on Report we shall have taken account of these points and hope to be able to answer them in greater detail.


If I might ask one question here, it is this. If a union lends money to another union in order to help it meet its charitable obligations in the way of its widows' fund, would that be regarded as an unfair industrial practice? Let me illustrate this point. When the postal strike was on, some of the other unions lent money to the Postal Workers' Union in order to assist that union to meet its financial obli- gations in paying out money to the widows and dependants of their members. Would that be regarded as an unfair industrial practice? I am afraid I have not put my question very clearly, but I hope what I mean will be understood.


Again, it is extremely difficult to be quite sure of the answers to these matters, and I should not like to comment on anything which happened in an actual strike without having knowledge of what actually was or was not done, because that might cause a lot of trouble without doing any good. But I think the answer to my noble friend's question is that if he looks at subsection (2) of the existing clause (this is the best I can do for him) he will find that quite clearly it would be difficult to bring the acts which he contemplates within any of the existing phrases to be found there, and to that extent I think he can be sure that we shall not enlarge the potential area of subsection (2). Subscribing to widows is not, I think, either calling a strike or financing one, and enabling a union to discharge its existing obligations is not something which I would ordinarily have understood as coming within any of the phrases there set out.


In view of the tact that, as the noble and learned Lord has explained, the terms of this clause are under consideration, I do not propose to invite my noble friends to divide the Committee upon the clause, but in saying this I should like to emphasise to the noble and learned Lord and his colleagues that this does not indicate any great liking for the clause, even in the way in which we hope it is going to be amended. I most sincerely trust that in considering this point the Ministers will bear in mind how deeply felt is the sense of solidarity among workers and how instinctive and immediate is the desire, particularly where a body of workers happens to work in close proximity, or in other ways has particular ties, to go to their assistance if they seem to be in a situation of difficulty. I hope that this very human and very laudable characteristic will be home in mind in considering this clause.

Clause 93 agreed to.

Clause 94 [Industrial action against extraneous parties]:

12.9 a.m.

LORD DELACOURT-SMITH moved Amendment No. 263SSSS.

Page 71, line 20, leave out from (" shall ") to end of line 33 and insert C4 not be an unfair industrial practice or a tort for any person or organisation of workers—

  1. (a) to agree to act with other persons in contemplation of a trade dispute or industrial dispute to break their contracts of employment, or
  2. (b) peacefully to persuade suppliers, pro- viders of services and customers not to deal with an employer involved in a trade dispute, or industrial dispute or a dispute concerning the right to join or the recognition of a trade union or organisation of workers.")

The noble Lord said: Here we have a clause which, again, was accepted by the Government in another place as, in its original wording, not fulfilling the purposes which it was intended to fulfil. Indeed, I think I should not be putting it too strongly if I said that it almost appears, from studying the Record in another place, that the learned Solicitor General recognised in the course of the discussion on the clause that he had virtually come to the point of abolishing, or seeking to abolish, the right to strike; and as this had been done inadvertently the clause has been revised, following the discussion in another place. While again this is not a clause which we like particularly, we recognise that the present form is less objectionable to us than the form in which the clause was originally published.

Amendment No. 263SSSS which I move is intended to assert a positive right of peaceful persuasion of third parties who are in contractual relations with a party to an industrial dispute, in place of the negative limitation of interference with contracting third parties which is provided in the clause as it stands. The idea behind our Amendment is to entrench a right to secondary boycott as an industrial weapon with certain inbuilt safeguards. The importance of the secondary boycott in the development of trade union strength and in collective bargaining is, I believe, one which ought not to be underestimated or overlooked. I have seen it put forward by people who speak with authority on these matters that the absence of provisions such as this in the law of the United States has been one of the reasons why the trade union movement there has not developed to the point of organising as high a proportion of the working population as is the case in a number of comparably industrialised countries. It has been asserted that it is not the intention of the Government—and I trust that this is so—to deprive the trade union movement of legitimate and proper weapons. As I understand the Government position, they seek—and this point has been made many times in the proceedings on this Bill—to strike a fair and reasonable balance. I believe that even now in the clause as drafted the balance is weighted against the trade union side. I shall want to develop this point when we come to the Amendments which are concerned with some of the later provisions of this clause. I hope that the Government will be able to give consideration to this Amendment to see whether something on its lines can be incorporated.


I find it very difficult to understand the words proposed to be substituted; I understand much more clearly the effect of omitting the words proposed to be omitted. The purpose of this sequence of clauses, Clauses 92, 93 and 94, is to give effect to the Majority Report of Donovan that the immunity extended to registered unions by Section 3 of the Trade Disputes Act 1906 in respect of inducing a breach of contract of employment should be extended to inducing the breach of any contract, whether of employment or not, but on certain terms. The first, which is common to the Majority Donovan Report, is that the union must be registered. We have had our dispute as to how far those two provisions are compatible, one with the other. I will not repeat that. The second is that we believe that action in support of an action already declared an unfair industrial practice should, under Clause 93, itself be an unfair industrial practice. We discussed that on the last clause. But the third is to protect innocent third parties from industrial action in purported furtherance of a dispute to which they are not a party and in which they are not giving any material support to either of the parties. We stick by those limitations. In a sense, although we have transferred liability from the field of tort to the field of the Industrial Relations Court, we are doing very little more in Clause 94 than re-stating the existing law. As noble Lords will be aware, in a number of recent cases the solidarity between the workers of which the noble Lord spoke extended to what I might call blind hitting out against innocent third parties. We do not intend to reverse the decision in, for instance, Cousins v. Torquay Hotel or Stratford v. Lindley if there is no legitimate dispute between the innocent third party and the union and the innocent third party is not in any way interfering in the industrial dispute between the union and its enemy, whether an employer or an affiliation of employers. We propose to stick to that.

A great deal of this Amendment is both unnecessary and also unexceptional. It is the intention underlying it to which we object rather than its actual words—for instance, when the Amendment proposes that it should not be a tort for any person or organisation of workers to do particular acts as set out in paras. (a) and (b). They are already protected under Clause 128(3). So when it seeks to protect the peaceful persuading of suppliers not to deal with an employer, they would not be committing an unfair industrial practice, under Clause 82; provided, of course, that they were not inducing a breach of contract. They could perfectly well go to a customer or supplier and say, " We do not like the person with whom you are doing business and we want you to stop doing business." So long as they use peaceful persuasion, and are not inducing a breach of an existing contract, they are perfectly free to say this. There is nothing in the Act to make it wrong in terms which are set out in paragraph (b).

I do not want to take pedantic points, but this is not a purely pedantic point. I understand that the purpose of this Amendment is to reverse the limitation which we have sought to impose by Clause 94. Whether our clause is well drafted or whether the Opposition Amendment is well drafted is immaterial for this purpose. I understand the purpose of the Amendment to be to reverse the purpose of Clause 94, which is to protect from industrial action innocent third parties who are not interfering in a dispute. If that is the intention we are against it, however it is framed and whether or not our own clause is per- fectly drafted. Having said that, I think noble Lords opposite will know where we stand.


In view of the hour, I do not think it appropriate for me to continue the discussion on this Amendment. I should prefer the Committee to run through the Amendments and look at the clause as a whole. In the circumstances I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

12.20 a.m.

LORD DELACOURT-SMITH moved Amendment No. 263GGG. Page 71, line 40, leave out subsection (3).

The noble Lord said: We are now coming, as I said that we should, to provisions in the Bill which, as we see it, contrast with the approach indicated in the first subsection. We are coming to Amendments which deal with individuals who are giving support or are in association with the employers concerned. We think that the bias of this Bill is exemplified by the contrast between the language used in Clause 93—though we welcome the fact that the noble and learned Lord has indicated that he is to drop " aid and abet "—when we are talking of assistance provided for workers, with the language of the civil law used here when we are dealing with assistance for employers. It is notable that anyone who gives any support to an unfair industrial practice is caught by the clause but in dealing with employers, industrial action is first declared to be unfair if directed against an extraneous party. Subsection (2) carries this further by excluding from protection someone who is extraneous but who takes it upon himself to take some action in support of the party; and subsection (3) excludes people who appear to us to be obviously partisans in the dispute.

The associated employer, as defined in the definition clause, is an employer who is under common control with the employer involved in the dispute, or a member of an employers' organisation which includes a party to the industrial dispute. Under subsection (3) somebody who contributes or has contributed to a fund financing industrial action can do so, provided that the contribution was not specifically paid to support that dispute. Thus members of an employers' organisation may finance its members in an industrial dispute, provided the contributions are not earmarked for that particular dispute. When we take Clause 93 as at present drafted and this part of Clause 94, it hardly seems that an even balance is being held. Therefore, I would propose to the Committee, as the Amendment does, that this subsection should be removed. I beg to move.


Again the point is a fairly short one. We have to see it in the context of Clause 94 viewed as a whole. I think that the noble Lord has not realised that the clause, by virtue of subsection (1), is a good deal more restrictive than Clause 93, though he seemed to think that it was wider. The actions which are prohibited under Clause 94 include the taking or threatening of steps specified in Clause 93(2), but only on certain conditions. The conditions are that the intention should be to break a contract other than a contract of employment. This is extremely important in construing this clause, because if the main object is to break a contract of employment, or to induce others to do so, then the action is not caught by Clause 94. It is only contracts other than contracts of employment which can be caught by that clause.

The noble Lord wants to omit subsection (3), which contains a definition of those who are extraneous parties to the dispute. The other limitation of Clause 94 is that the party concerned, the target of the new action, should be extraneous to the dispute. What is meant by " extraneous to the dispute ". The test is whether he himself is either a party to the dispute—when obviously he is not extraneous—or whether, not being a party to the dispute, he is helping one of the parties in that dispute. All that we have said in subsection (3) is that the mere fact that it is an associated company in perhaps a quite different field of industry should not of itself bring it into a dispute. That is the first point. The second point is that if the two companies, the principal party to the dispute and the proposed target, have in the past contributed to a joint fund of which each can avail himself, that again does not necessarily make him a party to the dispute because he can- not get his money back out of the fund, and nothing that is done to hurt him will make it more likely that the dispute will succeed. Therefore I would have thought these were fairly uncontroversial exceptions.

What would make a difference would be if he were helping to finance the dispute himself, because then we say he is not neutral or extraneous at all. He is already one of the parties and is a legitimate target for industrial action. That seems to me to be justice. It may be because the hour is getting late, but I am not quite sure that I understand the objection to it. The mere fact of association, to our minds, does not necessarily involve two companies: it does not necessarily involve the second company in a dispute to which the first company is a party. And the mere fact of having in the past contributed, or being liable to contribute, to an indemnity fund of which both can take advantage in certain conditions does not constitute interference in a dispute. We think that is justice, and I do not yet find myself persuaded that it is not. There is sometimes a tendency —and one does not say these things harshly—for a union involved in a dispute to hit out blindly instead of trying to aim deliberately at those who are actively participating in the dispute in one way or another, or who may be helping the other side. Hitting out blindly is not something which ought to be permitted under this sequence of clauses.


It seemed to me that a trade union may not finance an official stoppage of its own members if the stoppage contravenes Clause 92; but members of an employers' association may finance its members in an industrial dispute under this clause, provided that its contributions have not been earmarked for a particular dispute. How does this all work? Does it not give an unfair bias to the employers' side. Would this imply that they could legally spend money advertising, and taking for £100 or £500 a page in a local newspaper for the purpose of putting their points about the dispute? I will not delay the Committee, but that is the kind of problem that concerns some of us on this side. I do not know whether the noble and learned Lord considers it relevant, but I should like a reply. If he considers it to be irrelevant, I will be satisfied with the answer.

12.31 a.m.


I will try to give a relevant reply. The first point the noble Lord should bear in mind is that Clause 94 is concerned with the making of contracts other than contracts of employment. The second point is that if you pay for an advertisement backing up one side—in this case the employers' side—I think you would come within the terms of subsection (2)(b) of the clause, taking action in material support of a party in dispute, which would make anybody who did that a legitimate target for secondary action. All we are concerned with in paragraph (b), which is the immediate object of the Amendment, are the two propositions: that the mere fact of association does not constitute participation and the mere fact of a joint contribution to an indemnity fund, which cannot be withdrawn, equally of itself cannot constitute participation. So I think I have covered the point the noble Lord has raised, and I hope that. I have made it a little plainer.


if a trade union in dispute borrowed £500,000 from another trade union, that would be subject to the clauses that we are discussing. But supposing an industrial company losing money because of the strike, at the same time as the union is paying out money for the strike, borrowed £500,000, would that be acceptable under the Bill?


I can only refer again to subsection (2)(b). If what the secondary party does is to take an action in material support of a party to the dispute, he is interfering in the dispute and becomes then a legitimate target for secondary action. I suppose lending £500,000 might in certain circumstances be held to be material support. It would not in all circumstances, but in some circumstances it might well be so.


I should like to ask a question in regard to subsection (3)(c). If the Trades Union Congress, for example, was to set up a contingency fund to which trade unions made contributions, exactly as is provided that employers may do under paragraph (c) and those contributions were not withdrawable, were not earmarked for any specific dispute, but were used only to help a union which had suffered a big loss as a result of a dispute, could the T.U.C. fund be put in the same position as the employers' fund is put under this paragraph (c)?


I think it would be in the same position, but it would not require it. What is now contemplated in Clause 94 is, of course, solely certain types of industrial action. I know of no reason why unions should not contribute to a contingency fund. Their money having been spent on that contingency fund, I do not see how they could be involved in an unfair industrial practice by something which happens ex post facto. I should have thought that they were in the same position, but Clause 94 is not concerned with that side of the matter at all.


I find this very confusing. Is the position this: that if one union says to another, " Your people are involved in a strike, and you need money; we will lend you £500,000 ", that is an unfair industrial practice, but if one employer says to another employer, if there is a strike which results in a loss to the employer, "We will put up £500,000 ", that is not?


No, I do not think either, in itself, is. What Clause 94 envisages is an existing dispute or contemplation of a particular dispute. It protects a general indemnity fund which can be used, among other things, for the purposes of indemnifying an employer. I see no reason why a group of unions should not do exactly the same. What neither the employer nor the union can do without incurring some disadvantage is materially to help the other in the course of a dispute. In the course of a legitimate strike a union can help another without limitation. If it were simply financing a strike which is not legitimate, it might find itself in trouble. If an employer did the same, either a strike or a lock-out, to his fellow employer, he would come within subsection (2)(b) of Clause 94, and would be a legitimate target of second reaction. So far as the two things can be put on the same footing, they probably are on the same footing.


If it is necessary in the Bill to spell out the right of the employers to have an indemnity fund, why is it not spelt out in the Bill that the trade unions equally have a right to set up a similar limited indemnity fund?


The answer is because they already have that right. The employer has the right, too. All that is spelt out in subsection (3) is not the employer's right to contribute to an indemnity fund—that he has quite independently of subsection (3), as the unions have. What is spelt out in subsection (3) is that the mere fact that he has availed himself of that right does not mean that he is to be treated as a party to a particular dispute which happens to supervene afterwards.


Surely the loan of money can never reasonably make the institution that lends it a legal target for action. If this is so, we shall have the banks in trouble for lending money to a union; or the Stock Exchange may become the legal target of a strike because they have cashed the shares of the trade union. Is it not clear that no court would regard a firm that had simply lent money in this way as giving support to a strike? Money is passing all the time.


The noble Lord is confusing what we are talking about, and maybe I am confusing what we are talking about. What we are talking about is not what a court would decide is right or wrong, but what a court might decide rendered a firm the legitimate target for secondary action by a union. That is the only thing we are discussing. All I said was that I could well conceive of circumstances in which the direct subscription of money, whether by way of gift or loan, to help finance a lock-out by the employer, or finance his resistance to a strike-bound union, might in certain circumstances be held by the court to have been a sufficient participation in the strike to remove the protection which would otherwise be given under Clause 94.


That is exactly what I was talking about.


The discussion we have had in no way dim- inishes our belief on this side of the Committee that subsection (3) imports into this clause considerations which are quite unnecessary and weight the scales somewhat against the trade union. Subsection (2) defines the position of an extraneous party. It seems quite unnecessary to go beyond that and to add subsection (3). It will not be easy—it never is—at the time when these events are taking place for the trade union to establish all the facts which might be necessary for it to show that a particular person was not entitled, or a particular organisation was not entitled, to the protection of subsection (3). It is extremely hard to know precisely what is going on between two associated companies at the time that an industrial dispute is involving one of them. Later on this may emerge at a shareholders' meeting. It may emerge in all sorts of ways, but it will not necessarily emerge at the time which is important from the point of view of the trade union: when the dispute is taking place and the trade union has a means of knowing whether the associated company is entitled to the protection of subsection (3). Very much the same applies to subsection (3)(c).

I must confess that the wording of this subsection and the explanation that has been given by the noble Lord imply a certain naivete on the part of trade unions in dealing with employers' fighting funds of this kind. If. after all, a group of employers are making regular contributions or, more likely, contributions when a call is necessary to a fighting fund of this sort, a call may very well be necessary because one of them has been involved in an industrial dispute. Would the replenishment of the coffers, the expected replenishment of the coffers, very soon after the dispute was finished —perhaps with some of that money going retrospectively to the company which had been engaged in the dispute—completely ensure protection under subsection (3)? It would, as I understand it, because the previous call would have been paid perhaps long before the industrial dispute in question had broken out—or certainly before—and the subsequent call which might provide some retrospective financial aid to the company involved in the dispute would take place after the dispute was ended. So within the terms of subsection (3)(c) there would have been no contribution with specific reference to that industrial dispute. But it would be hard for any reasonable person to believe that the periodicity of the calls or the flow of the money which had taken place had been completely unaffected by the fact that the industrial dispute had taken place.

I feel that this is not a situation we can regard as satisfactory. However, at this stage of our proceedings this is not a matter I want to press to a Division, especially as we have a rather similar pair of Amendments which we shall be dealing with in a moment and which will perhaps give the noble and learned Lord the opportunity of making some further observations on this matter. In the circumstances, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

12.43 a.m.

LORD DELACOURT-SMITH moved Amendment No. 263HHH: Page 72, line 2, leave out from (" member") to (" has") in line 3 and insert (" except where he").

The noble Lord said: I beg to move Amendment No. 263HHH with which is associated Amendment No. 263JJJ. In the light of the debate which we have had I think it is not necessary for me to explain the Amendment at any very great length. I think what we are seeking to do here will be quite apparent. We are seeking to alter the sense of Clause 94(3) so that mere membership of an employers' association would be insufficient to disqualify as an extraneous party; the making of contributions to an industrial fighting fund of any kind would be sufficient to disqualify. I think this is a very reasonable Amendment which we are putting forward in the light of the discussion we have had on the point in discussing the subsection.


I could not resist the impression as we discussed the last Amendment, which to some extent embraces this Amendment, that we were beginning to chase our own tails. The particular example which the noble Lord, Lord Delacourt-Smith, then postulated was one which could not arise or be protected under Clause 94. If in fact a dispute is over, Clause 94 does not apply at all. Clause 94 deals only with a situation which obtains while a dispute is on or in contemplation. Once the dispute was over, whatever the indemnity fund might do or might not do would not justify a union in taking totally new action as a means of punishment against the members of the indemnity fund, because what it then did would not come within Clause 94 at all. It would have to be justified outside the terms of the clause. The perfectly simple question which the Committee has to decide, and which was one of the two questions that it has decided by implication under the former Amendment, is whether the mere fact of contribution to an indemnity fund should render a firm liable to secondary action designed to cause third parties to break commercial contracts with it—I say " commercial contracts ", meaning contracts other than contracts of employment. We believe that the mere contract of contribution to an indemnity fund should not justify a union in hitting out blindly and inducing people to break their contracts with all the members of the indemnity fund simply because one of the other members has a dispute with it.

We regard this as a fairly simple point, and although we would concede at once that a direct contribution would deprive a firm of protection, we do not think that a union is entitled to adopt these means against all the members of an indemnity fund simply because one of them has a dispute with a union, which they cannot influence one way or the other when the contribution has been paid. In the end, our belief is that the secondary action must have some legitimate effective purpose and must not be done out of mere rage, or as I put it before, a desire to hit out blindly. This is the only point that the Committee has to decide, and for this reason I find this Amendment open to the same objection as the last, because in fact it is part of the last.


I agree that it is closely related to the last Amendment. I think that on the last Amendment, like my noble friend Lord Brown, I must have compressed my argument excessively. I recognise that after an industrial dispute is over whatever payments are made to the indemnity fund cannot reopen the dispute. I was merely seeking to point out circumstances which could easily arise and which would render quite meaningless the proviso at the end of subsection (3)(c), that the contribution must have been paid without specific reference to a particular industrial dispute. I was arguing that in fact the flow of money to the indemnity fund could take place without its being possible during the dispute for it to be identified as specific support for the employers in that particular dispute, though it could nevertheless have greatly influenced the dispute. Indeed, there might even be retrospective payments to the firm which had been engaged in the dispute if it were judged impolitic to call money in to the indemnity fund while the dispute was taking place. I believe that there is an inequity. After all, it is not a question of trade unions hitting out wildly and blindly. There are the provisions of subsection (2); we are not challenging those; but we are challenging the further qualification of subsection (2) by subsection (3).


I do not think we can carry this discussion very much further, and I am sure the noble Lord will acquit me of discourtesy if I do not. The question at issue is the right to break a commercial contract in contemplation of a dispute and the circumstances in which that is to be legitimate as regards a party who may be extraneous to it. The issue is whether a contribution to an indemnity fund makes the donor a party to the dispute so as to deprive him of extraneous status.


For the reasons I have given on the earlier Amendment, I do not propose to invite my noble friends to divide, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

12.51 a.m.

On Question, whether Clause 94 shall stand part of the Bill?


I think we ought not to part with this clause without being fully conscious of what I submit are extremely stringent provisions. The clause sets up a new unfair industrial practice. What does that consist of? It is of taking any industrial action such as is described in Clause 93(2), if your purpose in so doing is to induce the outside company to break or not complete its contract, and that is sufficent. It is not necessary that your taking of that step should have the slightest effect on anybody in the world. It is not necessary that the outside party should in effect be prevented from completing his contract or performing his contract or should be compelled to break it: the outside party may be completely unaffected. It is sufficient if you simply threaten to do it. If you organise a strike for one night and then call it off, you have committed the unfair industrial practice, although nobody has really noticed what you have done. If you have taken a step towards organising it you have committed an unfair industrial practice. As I have said before, it is enough even if you threaten to do any of those things.

This would have been a less stringent clause had there been a further requirement that your threat, or the step that you take should actually have produced some result, and should have caused the third party either to fail in the performance of his contract, or to break his contract. It would not have been so stringent if there had been some provision—I should describe it as a safeguard—of that sort; but without it I submit that this is a most ferocious clause. If you commit such an unfair industrial practice, under Clause 97, you are liable to be taken before the Industrial Court. It may be impossible to show that you have caused anybody the least loss or any damage at all, but even then an order can be made against you under subsection (3) of the clause, ordering you to refrain from any such conduct in future. You must make no more threats, take no more steps to organise strike action; and if almost by mischance, you fail to comply with that order, you run the risk of a motion against you for attachment for contempt of court.

So long as the Committee is aware that that is what the clause does, and is content to pass it in that form, so be it; but it seems to me to be one of the most ferocious clauses in the whole of the Bill. If you just open your mouth, providing you have the necessary intent, automatically you have committed an unfair industrial practice, and you may be sent to prison if you disobey an order telling you you must not open your mouth again. That is what the clause does. Lest it has not been observed, I think it right on the Question, Whether Clause 94 shall stand part of the Bill, to call to the attention of the Committee that that is its real effect. It is a very savage clause.


I am not sure really whether the noble Lord, Lord Stow Hill, is aware, any more than I am aware that he is overstating his case rather badly. Certain acts are declared to be unfair industrial practices, and one of these is a threat; and admittedly if they are committed, an order of the court can be made, either declaring the rights of the parties, in which case any reasonable man will obey them without. any further order, or awarding compensation if they have resulted in damage. If there is no damage (and this will he the case where there was only a threat) no order of compensation can be awarded—or an order of the court telling him to refrain from an action which is illegal, which is in the nature of a quia timet injunction. There is nothing

Aberdare, L. Drumalbyn, L. Monk Bretton, L.
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Gaitskell, Bs.

Resolved in the affirmative, and Clause 94 agreed to accordingly.

particularly ferocious about that, and unless it is deliberately disobeyed no harm can come of it.


We have on the earlier Amendments expressed our views of the component parts of this clause, and my noble friend Lord Stow Hill has further underlined some of its characteristics. I think there is no need for us to spend any more time in repeating again the critcisms which we have to make of the clause, which seems to us to be a thoroughly inequitable one. In those circumstances, as I say, not having divided the Committee on any of the Amendments, we feel we must divide the Committee on the clause.

12.57 a.m.

On Question, Whether Clause 94 shall stand part of the Bill?

Their Lordships divided: Contents, 77; Non-Contents, 21.

1.4 a.m.

LORD GARNSWORTHY moved Amendment No. 263B:

After Clause 94, insert the following new clause: . It shall be an unfair industrial practice for any employer to refuse to negotiate with a trade union representing a particular description of worker on any matter relating to the terms and conditions of employment or the physical conditions under which the workers are required to work or to negotiate on the said matter with a person or persons other than the trade union representing the particular description of worker affected by the said terms and conditions of employment or the said physical conditions of work.

The noble Lord said: I beg leave to move Amendment No. 263B standing in the name of my noble friend Lady White and myself. It deals with the situation which is not necessarily covered by the creation of a sole bargaining agency, and it is intended to ensure that the trade union is the appropriate body with which an employer will discuss terms and conditions of employment. As has been mentioned at least twice during the Committee stage of this Bill, the National Union of Teachers has a position and experience which is frequently rather special. It has to deal with some local authorities who tend to set up ad hoc bodies to deal with conditions of service, a matter which would more properly be dealt with by the unions. Sometimes these ad hoc bodies are composed of head teachers or other persons who might not be representative of the teachers in the employ of a local authority. The National Union of Teachers would not necessarily wish to exclude consultation with such ad hoc bodies, but it feels that it ought to be quite clear that such consultation should not be a substitute for negotiations with the trade unions.

At this hour of the night, I do not wish to press the Amendment too far but, while being mindful of what has been made clear by the Government following the submission of a similar Amendment in the other place, I ask that some assurance be given that employers are expected to negotiate in the first instance with the appropriate trade unions, rather than with ad hoc bodies, even though there is no sole bargaining agency. I beg to move.


The noble Lord has moved his Amendment with very great courtesy and speed. He has said that the Amendment is intended to ensure that the trade union which is the appropriate body is the one with which the employer negotiates. It is a little difficult in all cases to say which is the appropriate body. There may be several unions claiming to be appropriate bodies for the people whom they claim to represent. So, to start with, I am bound to say that in many cases the position is not so crystal clear as one would wish. Secondly, it is not the intention of the Government to require the employer to recognise any particular body. If a dispute arises, then the question of what should be the sole bargaining agent can be referred to the C.I.R. for their investigation. In the long run, they can go to the Industrial Court for decision and, if need be, for imposition of a statutory recognition. Where there is more than one union involved, the C.I.R. may well decide that the right answer is to have a joint negotiating panel covering the various units, rather than allow them to contend among themselves, to the detriment of the profession or the workers as a whole.

The answer I must give to the noble Lord is that we believe that the provisions made in Clauses 43 onward as to recognition are the right provisions to make, and we do not think it would be right to lay down, even if it were possible to do so, an obligation, a compulsion if you like, on the employer to recognise a union. For one thing, one cannot very well do that without providing the means of deciding which union he is to recognise. I started by saying that it is not always clear which union represents a particular description of worker. I hope that I have made clear that in our view the Bill already provides suitable machinery to achieve the kind of object which the noble Lord has in view. Certainly I entirely agree with him that it is the intention that there should be stable bargaining arrangements, rather than ad hoc ones, but we think that the Bill already provides for this in the right way.


I rather think that the noble Lord, Lord Drumalbyn, has added nothing to what was said in another place when the matter was discussed there, but perhaps a close reading of what he has said when the Report is published may indicate some slight advance on the position as it was stated then. I have no wish to detain the Committee this evening, but I may say that I am speaking on behalf of the National Union of Teachers, which feels very strongly about this, and would have been grateful for some assurance which I rather fancy the noble Lord has not given. However, I ask leave of the Committee to withdraw the Amendment.

Amendment, by leave, withdrawn.

1.12 a.m.

LORD GARNSWORTHY moved Amendment No. 263C:

After Clause 94, insert the following new clause— (".It shall not be an unfair industrial practice for any person to induce another person to break a contract of employment where there is no breach of statutory duty on the part of an employer. provided that nevertheless the physical conditions of employment are unreasonable.")

The noble Lord said: In moving this Amendment may I again make clear that the National Union of Teachers feel that there is a very special case which ought to be recognised in regard to teachers in schools. The Solicitor General has stated that the Bill provides no way out for the employer who creates dangerous or unsafe conditions, or tolerates a dangerous or unfair system of work, and that no strike against this kind of thing would be in any danger. Teachers employed in schools are in a somewhat different position from employees in a factory where there are detailed safety regulations and it is not too difficult to know when the employer is in breach. There are no detailed statutory safety regulations applying to schools, except to office accommodation.

As to teaching accommodation, the Schools (Amending) Regulations, 1965 have the general stipulation that the premises of a school shall be kept in a proper state of repair, cleanliness and hygiene and that adequate arrangements shall be made for the health and safety of pupils and staff in case of danger from fire or other causes. But the Standards for School Premises Regulations, which lay down general standards for schools present a very serious drawback in that under the Education Act 1968 the Secretary of State is able to issue a certificate to a local authority absolving it from compliance with the particular standards by reason of having need to control public expenditure in the interests of the national economy.

It would seem therefore that the situation can arise where, although a local authority as an employer is not in breach of a specific duty, nevertheless the conditions of work of the teachers are entirely unsatisfactory. The National Union of Teachers would wish to continue to have freedom to take the necessary action to protect their members' interests in circumstances such as these. I have presented the case as briefly and as concisely as I am able, but I sincerely hope that the Government will give this Amendment the consideration that a very substantial body of people in the teaching profession desire. I beg to move.


that the noble Lord will recognise that, while he is quite entitled to present a particular aspect of a problem in relation to a particular industry or profession, we are bound, as a whole, to legislate to cover the generality, and it is a little difficult to argue a particular case. There are one or two points that I might draw attention to in his Amendment. For example, I think it is important to remind him that Clause 92 is specifically related to action taken in contemplation or furtherance of an industrial dispute ", and I take it that it was his intention that this should apply also to his Amendment. The definition of an industrial dispute which is given in Clause 158 includes disputes related wholly or mainly to … the … terms and conditions of employment, or the physical conditions in which any workers are required to work ", and of course the Amendment would be meaningful only in the context of an industrial dispute.

The Government do not consider that there should be a general protection for breach of contract in the circumstances that the noble Lord has adumbrated. The phrase "physical conditions of employment are unreasonable" is not defined, and it could be open to varying shades of interpretation. I might say that the widest of these interpretations could well have the effect of nullifying the effect of Clause 92 in disputes about physical conditions of work. It is not always easy in any case for experts to decide whether there has been a breach of statutory duty. It would be even more difficult for the court to decide whether a dispute as to whether working conditions were reasonable could justify a breach of contract. It is surprising, indeed, that those who complain that the Bill will introduce excessive litigation into the industrial relations field should propose a measure likely to lead to what could only be repetitive litigation.

I hope that the noble Lord will recognise that the intention of Clause 92 is to curb unofficial inducement to industrial action in breach of contract, so it would not be right to give a blanket authority for unofficial inducement of industrial action in order to meet the particular circumstances that he has in mind. In any case, I should have thought that there would be no difficulty, in the circumstances that he has in mind, in securing official action. There is no great difficulty about this. I see no reason why if, in a particular part of the country, for example, the conditions of work were particularly bad because the local authority was not prepared to bring them up to standard, the union or unions should not authorise official action.

I think it wrong as a general principle to say that, no matter what the circumstances are, unofficial action could be taken to break a contract of employment, or, to use the noble Lord's words, to induce another person to break a contract of employment where the physical conditions of employment are unreasonable. I have given the reasons: first, that it is difficult to define precisely what could be meant by the circumstances in which such unofficial action would be permissive and the circumstances in which it would not; secondly, and much more important, that it would be unwise to make a general principle in such a case as this to allow unofficial action where, quite apparently from the circumstances the noble Lord presented to the Committee, official action could be appropriately taken.


I thank the noble Lord for the care and patience with which he has replied to the case I endeavoured to present. What he said will be studied carefully, and if there be need the matter will be brought back again. But having regard to the hour I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

House resumed.