HL Deb 27 May 1971 vol 319 cc1292-428

11.18 a.m.


My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.

Moved, That the House do again resolve itself into Committee.—(Lord Drumalbyn.)

On Question, Motion agreed to.

House in Committee accordingly.

[The EARL OF LISTOWEL in the Chair.]

Clause 95 [Establishment and membership of Industrial Court]:

LORD DIAMOND moved Amendment No. 263GGGG Page 72, line 16, leave out (" industrial ").

The noble Lord said: I beg to move Amendment No. 263GGGG. As your Lordships will have observed, we are now starting on Part VI of this Bill. It is a large Part with no fewer than 29 clauses, and I am bound to draw to your Lordships' attention that not one word of these 29 clauses, not one provision, was discussed in the other place. Therefore we come for the first time to consider this most important Part of this Bill. I think it desirable that I should explain what the Industrial Court is, because the Part of the Bill to which the Amendment refers relates to it. The Industrial Court is an existing court. It was established under the Industrial Courts Act 1919. It consists of a panel from which members are chosen to sit. The panel is of four independent members, one of whom is the legally qualified chairman—and I think for many years he has been, and for all I know still is, Sir Roy Wilson, who has served with such distinction—and 20 representative members representing both sides of industry, and including some women: it is predominantly a lay body. It incorporates much experience of industrial relations and sits as a standing arbitration tribunal. It has worked with success, and those who appear before it speak well of it and feel that they are receiving justice with understanding. That is the Industrial Court.

There is another court to be set up under this clause called the N.I.R.C., which I see stands for the National Industrial Relations Court, although those of us on this side would understand the letters more readily if they stood for the Nasty Inquisitorial Retrograde Court. This court, N.I.R.C., and any court with the name of must be a repulsive organisation, knowing that it will be unacceptable, knowing that its function of discharging justice will be prejudiced from the word " Go " because of the circumstances of its establishment, the content of its establishment and the purposes that it is to serve, knowing that nothing but ill will is going to attach to it, is seeking under this clause to snatch the good will which attaches to the Industrial Court and to parade in sheep's clothing. It will not succeed. All that will happen is that the good will which already attaches to the Industrial Court will be somewhat fogged, and there will be no benefit to the N.I.R.C. because by now everybody knows its function and the purposes which the Government have in mind for it. Therefore damage will merely ensue to the Industrial Court with no corresponding benefit, if the clause as set out in the Bill is carried.

It would therefore be wise of us to limit that damage by the Amendment which is proposed—namely, to leave out from the description of the N.I.R.C. the word " Industrial "—so that it will not be called " the Industrial Court ", but will be called " the Court ". That is an indeterminate description and leaves it open to everyone to think in whatever way they wish about the N.I.R.C. At all events, it leaves the Industrial Court unblemished and prevents the confusion in everybody's mind which the Government intend. I beg to move.

11.26 a.m.


Strictly speaking, the only effect of this Amendment would be one of nomenclature. As the noble Lord, Lord Diamond, has said—and I think it was the only part of his speech with which I agreed—it would change the name of the Industrial Court, as it appears in the Bill, to the Court. Of course this would cause no harm intrinsically to the Bill, because throughout the Bill the words would be " the Court ". But, of course, it would be a ridiculous thing to do outside the Bill, because no court in this country is entitled to the simple designation " the Court ". Each must have its own particular name. So that if one is being pedantic about it, the Amendment is wholly unacceptable. However, I think I must say a word or two about the content and good taste of what the noble Lord has just said. I think I had better not characterise his reference to the N.I.R.C. as the Nasty Inquisitorial Retrograde Court. I think that is schoolboy humour, and the Committee will perhaps be able to form its own judgment as to whether or not it is in the best traditions of this House.

I start from the beginning of what he said. I share his admiration for the existing Industrial Court, which dates from 1919 and has certain important functions which will be continued and added to by the provisions of the Bill. I first wrote about it when I produced my book about arbitration in 1935 and I have always admired it, but for one thing. It is not of course a court at all, as the noble Lord indicated. Its functions are arbitral, although the Arbitration Act 1950 does not apply to it, and where disputes are referred to it for settlement, although it has a certain number of statutory functions, the consent of both parties is required to make its findings binding. So that it is, in fact, an arbitration board and its redesignation as such in the Bill is, I think, an indication of its functions, just as much as I believe the designation in the Bill of this court as the Industrial Court is an accurate description of its functions.

As regards the substance of what the noble Lord was trying to say, the Committee has already passed those clauses of the Bill, or many of them—and it will be shortly approaching others—in which the rights which are to be adjudicated by the proposed court are conferred, and it will shortly be passing on to the clauses of the Bill where the remedies which the proposed court will have jurisdiction to award in support of those rights will also be conferred, if the Committee so thinks fit. To suggest that this court, which is designed for that purpose and for that purpose only, should not have a distinctive name—and I should have thought the National Industrial Relations Court or, more shortly, the Industrial Court, is an admirable description—is I think almost meaningless.

The argument which the noble Lord sought to adduce to support his theory was that the court—and I quote his actual words " is seeking to snatch the good will of the existing Industrial Court and to parade in sheep's clothing ". This court is seeking to do nothing of the sort. That, as a statement of fact, is wholly contrary to the truth. What is happening is that the Government, who take full responsibility for the terms of the Bill, are seeking to persuade Parliament to confer jurisdiction on the court and to give it an appropriate name. To attack a court which does not exist, and which we believe will consist of honourable men and women, as seeking to pursue a policy which is the policy of Her Majesty's Government is, I should have thought, something which does not really do credit to the noble Lord who used that language.

I now proceed to the argument with which he sought to persuade the Committee that his language led to a justifiable conclusion. I should have thought it was logic turned up on its end, inverted logic, because the fact is that if these rights are conferred, if a body is to be given the jurisdiction which it is proposed to give by the later clauses to this particular court, and if, contrary to my contention, these are unpopular jurisdictions and unjustifiable rights, as the noble Lord suggests, I should have thought the one way to be absolutely certain of destroying the good will of the old Industrial Court, now to be rechristened the industrial arbitration board, would be to confer that jurisdiction and those rights upon it. So I have no hesitation in advising the Committee to reject this Amendment; and I characterise the noble Lord's speech as uncharacteristic of him, and both puerile and in bad taste.

11.33 a.m.


Curiously enough, I still feel capable of rising to speak at this Box. If the noble and learned Lord prefers me to be more precise, I will be. I quite agree: I am not attacking an existing court. The noble and learned Lord knows I am not. I am not attacking existing men. The noble and learned Lord knows I am not. I am attacking the Government. I am attacking the Government for bringing courts into disrepute, because I have a high regard, and have had the whole of my life, for those, including my own family, who work in them; and I object strongly to a court and its proceedings being brought into disrepute over more than half the population of the country, as will happen with regard to this court and as is already happening with regard to this nomenclature among the whole of the working population of this country. All their hostility towards courts will be centred on N.I.R.C. That is what is happening; and of course I am attacking the Government. Of course I do not mean that the court is nasty: I mean the Government are nasty. I do not mean that the court is inquisitorial: I mean that the Government's whole intention is inquisitorial. I do not mean that the court is retrograde: I mean that the Government are adopting in this Bill one of the most retrograde steps any of those interested in industrial relations has ever come across. I do not feel, in those circumstances, that I have to answer a charge of bad taste, although nobody speaks with greater authority on that matter than the noble and learned Lord.

So I return to what I said earlier, that this will do damage to an existing court which works well. The noble and learned Lord and I are at one in saying that the Industrial Court, established since 1919 (that is going hack a bit, even in my memory), has worked well and has achieved more than the normal respect for a court from the whole of the working population of this country for the way it has carried out its functions, especially under the enlightened guidance, the chairmanship. of Sir Roy Wilson. I am therefore saying that it would be highly damaging to confuse the public mind about it, because let none of us make any mistake. Although those of us sitting here listening to this debate will of course be able to distinguish between the two courts and will remember that the Industrial Court meant one thing from 1919 to 1971 but another thing from August or September (or whatever the time may be whenever this Part of the Bill comes in) of 1972, nobody else will. Those of us who have listened to the debate will perhaps remember that, but certainly nobody else outside Parliament will. Nobody else not connected precisely with the field will, and the whole of the ordinary public will not.

Therefore, whenever in future a matter, had it been before the existing Industrial Court, would have been settled quickly, in friendly fashion, amicably and with satisfaction to those appearing before the court, that matter will not be settled in that way because those approaching the court will have hesitation as to whether they are going to receive justice from people who understand, being a large panel of men and women with enormous experience. They will think they will be treated as they feel they are treated, and as one of the most distinguished judges of the land has recognised they feel they are treated: in an ununderstanding way by courts which are peopled with judges who are not drawn from the same income level, from the same stratum of the public, who do not have the same ethos and who do not react in the same way. I have explained this before; it is on the Record. I am referring not only to my own opinion but to what one of the most distinguished judges in the land has himself said. As our function is to try to achieve a kind of setting up of the courts which will not only give justice but give people the feeling that they are being treated justly, I repeat that this clause will do enormous damage. My Amendment will do something to reduce that damage. If the noble and learned Lord does not like the title "court " for the N.I.R.C., let him suggest some other title.


What I said was that the existing Industrial Court was not a true court. I did not say that I did not like the word " court " for the N.I.R.C. I only pointed out that if it was called simply " the court ". as proposed in the Amendment, it would be meaningless outside the structure of the Bill.


That is what I am referring to. If the noble and learned Lord thinks the title " the court " is a meaningless title so far as the N.I.R.C. is concerned, let him think of another title. If I do not like a particular name for a particular person, or for a child of mine, I do not proceed to give it the name of somebody else who is well known and well liked, so as to cause a confusion. If a limited company is registered under a certain name and has great good will attached to it, it is not going to be very happy if somebody comes along and takes away its name in order to give it to a body which needs the good will because otherwise no good will will ever attach to it. That is not the way to behave. This is a stupid way of going on. It is doing damage—and I repeat what I said: it will lessen the damage if this Amendment is accepted, and if the noble and learned Lord is not prepared to move on it then all we can do is to show our opinion in the usual way.


May I make two comments in support of my noble friend's argument? The first is that although Andrew Shonfield, when the Bill was published, wrote a piece in The Times approving it, in the reservation he made in the Donovan Report he comes out strongly against courts in the sense that the Government are using them —although, as I say, I believe he is in favour of the Bill. Also, in his reservation in the Donovan Report, he suggests that the present Industrial Court should be strengthened. So it seems to me that the Government really have gone out of their way to produce this court. There is one other argument. In this country, with the greatest respect to the legal profession and to the judges, we have not got a corps of judges and lawyers really experienced in industrial relations—and


Before calling the next Amendment, I should point out that if it is agreed to I cannot call Amendment No. 263JJJJ.

11.48 a.m.

LORD DIAMOND moved Amendment No. 263HHHH:

Page 72, line 17, leave out subsections (2) to (4) and insert— () The Industrial Court shall consist of persons to be appointed by the Secretary of

it would take about 20 to 30 years to produce them.

11.40 a.m.

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

Their Lordships divided: Contents, 38; Not-Contents, 74. State of whom some shall be independent persons, some shall be persons representing employers, and some shall be persons representing workers, and in addition one or more women. () The President of the Court, and the chairman of any division of the Court shall be such persons being one of the independent persons aforesaid, as the Secretary of State may by order, given either generally or specially direct.

Balogh, L. Hughes, L. Samuel, V.
Bernstein, L. Janner, L. Serota, Bs. [Teller.]
Beswick, L. Leatherland, L. Shackleton, L.
Brockway, L. Llewelyn-Davies of Hastoe, Bs. [Teller.] Shepherd, L.
Buckinghamshire, E. Shinwell, L.
Champion, L. McLeavy, L, Slater, L.
Diamond, L. Maelor, L. Soper, L.
Douglass of Cleveland, L. Moyle, L. Sorensen, L.
Evans of Hungershall, L. Pargiter, L. Stonham, L.
Gaitskell, Bs. Plummer, Bs. Summerskill, Bs.
Gardiner, L. Popplewell, L. Taylor of Mansfield, L.
Hall, V. Royle, L. Williamson, L.
Henderson, L. Sainsbury, L. Wynne-Jones, L.
Aberdare, L. Digby, L. Massereene and Ferrard, V.
Ailwyn, L. Drumalbyn, L. Mersey, V.
Airedale, L. Dundee, E. Mowbray and Stourton, L.
Amherst, E. Eccles, V. Penrhyn, L.
Amulree, L. Effingham, E. Platt, L.
Balerno, L. Emmet of Amberley, Bs. Poltimore, L.
Balfour, E. Ferrers, E. Rathcavan, L.
Balfour of Inchrye, L. Garner, L. Rea, L.
Barnby, L. Goschen, V. [Teller.] Reigate, L.
Barrington, V. Greenway, L. Rochdale, V.
Beaumont of Whitley, L. Grenfell, L. St. Aldwyn, E.
Berkeley, Bs. Gridley, L. St. Helens, L.
Boston, L. Grimston of Westbury, L. St. Just, L.
Bourne, L. Hailes, L. Sandford, L.
Brooke of Cumnor, L. Hailsham of Saint Marylebone, L. (L. Chancellor.) Sandys, L.
Byers, L. Sinclair of Cleeve, L.
Clwyd, L. Hankey, L. Strang, L.
Conesford, L. Hanworth, V. Swansea, L.
Cottesloe, L. Hatherton, L. Templemore, L.
Courtown, E. Henley, L. Tweedsmuir of Belhelvie, Bs.
Cowley E Hood, V. Wakefield of Kendal, L.
Crawshaw, L. Howard of Glossop, L. Ward of Witley, V.
Cromartie, E. Hylton-Foster, Bs. Willingdon, M.
Daventry, V. Lauderdale, E. Windlesham, L.
Denham, L. [Teller.] Mancroft, L. Wolverton, L.

Resolved in the negative, and Amendment disagreed to accordingly.

The noble Lord said: I beg to move this Amendment, and if it is carried, as I hope it will be, then paragraphs (a) (b) and (c) of subsection (2) would need to be removed because what I am proposing is in replacement of those paragraphs. The proposal is that the new court (now that the decision has been taken that in name it should follow the original industrial court) should follow it also in its constitution which has been tried and found to be successful. The constitution is broadly that which is set out in the Amendment. The particular point about which we wish to persuade the Government is that the court will function better if those who people it are drawn from wide sections of the community and have direct first-hand experience of industrial relations. This would be the case if they were to include independent persons representing employers, persons representing workers and in addition—and this I regard as essential—one or more than one woman.

It is quite absurd to think that justice can be felt to be done and seen to be done where a substantial proportion of those appearing before the court inevitably will be women if those making the decisions and serving justice will exclusively be men. Therefore I think that there is everything to be said for the constitution of the court being drawn as indicated in the first five lines of the Amendment.

The second part of the Amendment refers to the President of the Court and the chairman of any division of the Court being one of the independent persons as the Secretary of State may by order specify. We think that is right; we think it has worked extremely well hitherto and that the appropriate person is the Secretary of State so that he can be answerable for the kind of choice that he has made. I hope this will be regarded by the Government as a serious attempt to make a court which we do not like at all, work better than it will otherwise do. I do not know that an Opposition can be called upon to do more than that. We dislike the whole of the litigious approach of this Bill. We dislike N.R.R.C. intensely, but we feel it is our duty once a decision has been made to make the court work if possible, and we think what we are proposing will be a real and substantial contribution to that end. Commonsense indicates it. experience indicates it and we are therefore recommending it. I beg to move.


May I add one word of support to the proposals at present before noble Lords? I should like first of all to say that I support the general statement that has been made by my noble friend. In particular I should like to draw the attention of the Committee to the point concerning the appointment of some women. This course has proved particularly effective in respect of the various tribunals and courts in which it has been made compulsory for one or more women to sit in judgment, and I hope that the noble and learned Lord the Lord Chancellor, in replying will agree that in regard to those provisions which have been made from time to time in relation to matters in which women particularly are concerned, and sometimes generally with members of the other sex, their appearance on the various benches or tribunals has proved of considerable benefit in the deliberations that take place in consequence of their own knowledge and of the various experiences that they themselves have had. I hope that in those circumstances the Amendment will be accepted.


I think it might help if I tried to clarify the issues in this Amendment. The first question is whether the appointing Minister should be the Secretary of State or the Lord Chancellor. The point made by the noble Lord, Lord Diamond, in favour of the Secretary of State is that the Secretary of State would be responsible to Parliament. I hope that the noble and learned Lord, Lord Gardiner, whom I see sitting, dug in like an enemy tank gun, on the Front Bench opposite, will agree with me. He is, I think, hoping that I will expose myself more than the firing step normally permits. but I hope he will agree that the Lord Chancellor is also responsible to Parliament for what he does, particularly in his judicial appointments. Over a long period of years it has become the practice of Parliament increasingly to entrust judicial appointments to the Lord Chancellor in order to ensure that Party bias does not come into it, and I think I can say for all my predecessors down to, but perhaps not including, the late Lord Halsbury (the first and great Lord Halsbury) that on the whole Lord Chancellors have been wholly immune from criticism on that ground, and I hope that the present one, although it will not be for me to say, will remain immune from criticism on that ground. So far I do not think I have had to undergo any. As this has to be an impartial body, it is not, I think, appropriate for the Secretary of State to be the appointing authority; it is better for the Lord Chancellor to be the appointing authority. The Secretary of State as the residuary legatee of the Minister of Labour, is, I think, the appointing authority for the President of the existing Industrial Court. That is an arbitrary body; it is not a body possessing compulsory powers, or it possesses very few compulsory powers.

The next point is whether the President of the Court should be a Judge of High Court status or just an independent person. Rather rudely, the draftsman has said that although he must be of High Court status he may be anybody of that status except the Lord Chancellor. I took offence when I read that, but I reflected that to be President of any Court was not the highest of my ambitions at the moment so I did not cause it to be removed from the Bill. Sir Roy Wilson has, I think, legal qualifications, and, with great respect to the noble Baroness, Lady Gaitskell, who intervened in the last debate, although I endorse every word which the noble Lord, Lord Diamond, said in his favour, I would not have claimed that he, either, had come from the income groups normally associated with unskilled labour.

It may be that I am wrong. I think, as a matter of fact, that the noble Baroness, Lady Gaitskell, has not quite the intimate knowledge of the legal profession which I have, and I would say that it is quite untrue that although one always wants to cast one's net wider and yet wider—like our bounds, which we always pray should be set wider and wider for some reason—the legal profession has ever come from what used to be called wrongly " the upper strata of society ". It has been, in fact, one of the great ladders up which, even in days when society was differently constituted from what it is now, men of quite humble origin and now women of quite humble origin have climbed. My predecessor Lord Eldon, who was not noted for his progressive ideas, was the son of a rather humble coal factor in Newcastle, and that was more than 200 years ago. The legal profession is a very democratic profession and, like the Church, has been one of the great ways by which people have climbed, even when society was differently constituted from what it is now. So I should not myself experience difficulty in finding judges at any given moment of time—either High Court Judges or county court judges—who had the widest possible social sympathies; and even a few who, prior to the time when they had their political opinions carefully removed, have been member of the Labour Party. I can see one of them sitting smugly on the Cross-Benches at the moment, concealing from me all but his head.


I hope that the noble and learned Lord said snugly " and not " smugly ".


I said " smugly ", but I was jesting on that occasion, and I hope that the noble and learned Lord on the Cross-Benches will not take offence. I do not think he will; I have known him for a very long time.

At any rate, so much for the judge. I agree in principle with what the noble Lord, Lord Diamond, said in his opening speech about the constitution of the lay members of the Bench. The more they are representative and the wider their representation the better. May I say at once that I certainly hope—and I know that my right honourable friend hopes—that among them will be found one woman or more. I think that the presence of a woman, or women, on this Court would be of the greatest possible value, but we must try to get away from the old conception of the statutory woman. In the old days, when there was a certain prejudice in these matters, and just after women's rights in 1919, we got into the frame of mind that there must be a statutory woman on every bench. The implication was that women could not get there on their merits. I hope that that is now a thing of the past and that we may expect, in any appointments there are, whether it be to a committee of inquiry or a bench of magistrates or a court, that it will be recognised that women are playing a full part—


May I ask—


The noble Lord will forgive me, but I have not finished my sentence yet—in our national life, and do not need special preference in order to get on committees. I absolutely agree that the composition of this court needs the inclusion of women and I hope that it will get them.


May I ask the noble and learned Lord to realise that it is in recent times as well, in consequence of the special knowledge and experience that women have, that courts have been ordered, or at least the Statutes have declared, that there must be one woman in court. I do not think it is a reflection on women at all. On the contrary, I think it is a tribute to the women, in that it is a recognition that there should be a woman on tribunals of the sort to which I have referred. I would say that this is no slur on femininity or anything of that sort. On the contrary, if I had to be judged, I should much prefer to see the noble Baroness, Lady Tweedsmuir of Belhelvie, who is sitting on the Government Front Bench, as a member of the court, than a large number of men whom I know and who are sitting on these Benches to-day.


If we each were able to select our judges, all of us would go for my noble friend Lady Tweedsm uir. But that, I think, is more than even the noble Lord, Lord Diamond, would claim in this Bill. The answer to the noble Lord, Lord Janner, is, of course, that my right honourable friend and I want women on this Court, but I think that we can get them without putting in the statutory woman. In cases like juvenile courts special considerations apply, because women do have certain advantages over men in that connection. I do not think that they have any advantages here. I must say to the noble Lord, Lord Janner, that if it is like the Restrictive Practices Court—noble Lords will be familiar with the model that we are following in this case—you will get either three or five members sitting for any one case, and one could not guarantee either that they would not all be women or that they would be all women. It is to some extent dependent upon those who are available to sit. To some extent the panel will be selected, if it is a case which demands the presence of a woman, but the sexes should not be predetermined in that way.

I am afraid that these interruptions have lead me to take a little longer in my reply than I intended, but turning to the last point made by the noble Lord, Lord Diamond, of course we want men and women to be representative both of workers and also of employers and to have probably one of each on each panel—at least one of each on each panel. I want to say delicately to the noble Lord, Lord Diamond, that he will understand, after the last speech he made —not the one he made so admirably on this Amendment but the one with which I did not agree so much which he made on the previous Amendment—that he is not making it particularly easy for us to do that by what he is saying now. Of course, if he really wants the court to be successful now that the decision has been taken, it would be very helpful if he would be a little more polite about it in future. In the meantime I do not think that we can accept the words of the Amendment. It would, of course, allow either employer or employed to sabotage the court by refusing to go on. if the Amendment were accepted in the proposed form. For that reason alone I could not accept it on behalf of the Government. I do say, however, and I give the most explicit assurance, that the policy will be to appoint exactly the sort of person whom the noble Lord has suggested, and we certainly will do our best to do so.


May I just reply to the noble and learned Lord the Lord Chancellor? He has chided me about being a person with no experience—


I did not say that; that is the last thing I would say of the noble Baroness. I only said that in knowledge of the legal profession it could be that my knowledge is slightly more intimate than hers.


I readily concede that, as a woman and as a person, I am more than a little at a disadvantage with the noble and learned Lord on this point; and I would never make a statement of the kind that I have made on my own. But I have spoken to several lawyers and it is they who say that we have no real corps of experienced legal personnel. Also, American lawyers have said this in many articles that I have read.

12.8 p.m.


The noble Baroness, Lady Gaitskell, has made a point. I know that there are a number of American lawyers who find their own country unpleasant at the present time and are emigrating to this country to act as advisers to people who require American lawyers to deal with a Bill which is based on a great deal of American trade union law practices. The point made by the noble Lord, Lord Diamond, on the previous Amendment and on this one relates to a change in our dealings with labour relations. The legal arguments which we have heard from the noble and learned Lord the Lord Chancellor leave me unmoved. The " women's lib." movement also leaves me unmoved in this matter. The problem is not the kind of judicial body that we have, but whether we need one for this work. Here we are dealing with industrial peace and not industrial division. Previously all bodies in this and many other countries have had an impartial chairman and invariably impartial members with management experience and union experience. Is there any reason for the change? I cannot read or see anywhere why the Government have gone out of their way to make this departure from the previous procedure. I understand that the C.B.I. and the T.U.C. have not been consulted. Why not? I think that this is a very important Amendment in view of the fundamental discretionary power which the new court will have. Can the Government say why there has been this departure from past practice, and why they have failed to consult the C.B.I. and the T.U.C.?


I only wish to add a word in support of my noble and learned friend the Lord Chancellor in rejecting the statutory woman. It seems to me quite extraordinary that year after year someone proposes a statutory woman under the extraordinary illusion that he is being complimentary to women. I cannot imagine a proposal more insulting to women. I speak as one who started fighting the idea of a statutory woman before I even entered the House of Commons in 1935. I think it was in the year 1937, in a Committee of another place, that I struck out a clause creating a statutory woman on some committee.

The provision has one of two implications: either that without the compul- sory statutory woman, a woman would not be employed, or the alternative view that women are obviously most desirable on these bodies but the appointing person would be so stupid as not to realise so obvious a fact.


May I intervene?


No; I will not be interrupted by the noble Lord, Lord Janner, before I have dealt with him, as I shall deal with him. The noble Lord thinks that by putting in the statutory woman he would ensure a body containing members of both sexes. He would do nothing of the kind. If this Amendment were adopted, there would be no certainty, so far as the law was concerned, that a single man would be on the body. They could all be women.

If there were to be a statutory woman, then in the interests of sex equality there should at least be a statutory man. I remember the occasion, years and years ago, when it was proposed, I think by one of the first Labour Governments in this country, to set up a body—I believe it was to advise on prices—of whom two at least should be women. I was not in either House at the time, but I remember suggesting in the Press testing the idea that lay behind the proposal by putting down three amendments from which to choose. One was to add the words, " and two at least shall be men ", the other was simply to strike out the words, " of whom at least two shall be women " and the third was to strike out the words and put in their place, " of whom not more than four shall be ignorant of political economy ". I hope that we shall have no more proposals for a statutory woman and that those who do make such a proposal will realise how insulting it is.


I am reluctant to intervene again, but in view of the fact that the noble Lord, Lord Conesford was so discourteous as not to allow anyone to intervene while he was speaking, may I say that I strongly object to the term " statutory woman "? May I point out to the noble Lord that, in spite of his reluctance to allow women to sit on the Bench. the fact is that since the days of which he has spoken, by statute women have been sitting on benches and they have done magnificent work? If the noble Lord realised that, he would see the purpose of the argument which I put forward.


Whether the noble Lord, Lord Janner likes or does not like the term " statutory woman ", if this Amendment were carried there would be a statutory woman. His suggestion that I do not want women on the Bench is wholly without foundation. I have been in favour of equal rights for women in a great number of things probably as long as the noble Lord has. and he really ought to try to appreciate the point.


May I, having been in my time a statutory woman, say a word on this subject? The reason for this practice in the old days was not that it was an insult or a compliment to women, but because so often when a Secretary of Stale or Minister had to set up a committee he was advised by his permanent officials, and they always forgot to put forward a woman's name. It was not intentional they just did not think about it. That is how the statutory woman arose. I think that now that time has passed, and I feel very confident that if the Lord Chancellor has the appointment, because he and his predecessors have paid great attention to the point of view of women, this matter will be in very good hands and we shall not need to have a statutory woman.

12.15 p.m.


I do not propose to follow this fascinating subject, but I wish to ask the noble and learned Lord, the Lord Chancellor just one question. It is of course typical of this Bill that if one wants to know whom one will find when one goes before the Court one cannot do so from this clause. It is necessary to look at Schedule 3, Part II, paragraph 17. There it will be found that there is to be a judge and not less than two and not more than four laymen. I presume it is intended that half the laymen shall be representative of employers and half representative of employees. If the trade unions do not co-operate to make the Bill work, what machinery do the Government intend to employ to get employees represented?

The same thing will apply to an industrial tribunal which also, of course, would normally have a lawyer chairman and employers' and employees' representatives. The other day I had a letter from the chairman of an industrial tribunal saying that he was proposing to resign at Once and asking my advice. The reason he proposed to resign was, he said, that as the trade unions were obviously not going to co-operate there would not be employees' representatives and the whole character of industrial tribunals, which now were working so well, would be completely altered under the clauses of this Bill. The whole thing was Party political and he did not want to be a chairman of a Party political court, so he was contemplating resigning now. I advised him to wait until the Bill became law and to reconsider his position then.


I think the short answer is this. We have long experience of the trade union movement, and although we recognise that the trade unions do not like this Bill, for reasons which may or may not coincide with what the noble Lord, Lord Diamond has said, we believe that, faced with the situation of the industrial tribunals and other measures being passed by Parliament, they will respect the will of Parliament in both its Houses in this respect and will cooperate. Otherwise we must use whatever means are at our disposal to see that as wide as possible a range of people of both sexes is represented on the tribunals. But I sincerely hope that the unions, whatever they may think about our policy, and however much they may desire to alter the results of it, will still co-operate with Parliament and not seek to go against the declared will of Parliament in one of its established Acts.


I am bound to say that I think the noble and learned Lord the Lord Chancellor has gone a long way to meet the substance of this Amendment, and that after a few further comments it would be right for me to seek your Lordships' permission to withdraw it, retaining the right, of course, to offer a comment or two, when we come to the Question, That the clause stand part of the Bill, as to the attitude I took on the first Amendment and that which I am taking on this matter. I start by saying how grateful I am to my noble and learned friend Lord Gardiner. who has made clear by an example, which is always a telling way of advancing an argument, what in fact is happening at present. The noble and learned Lord the Lord Chancellor said first that in regard to persons with authority to appoint, he would prefer the appointments to be made by the Lord Chancellor and that the Lord Chancellor is responsible to Parliament. This I recognise and accept. There will be an occasion to particularise about it when we come to the next Amendment, but I certainly accept that. Then the Lord Chancellor made quite clear that, whatever the wording is, he will use his best endeavours to see that as wide and representative as possible a panel shall be created. We are grateful for that.

The noble and learned Lord went on to a matter which I dearly wish I did not have to deal with, but which I feel I must deal with. That is the question of whether or not we should keep the words, which I think arose in 1919, as to naming by statute a woman member. Whatever I say on this matter may cause offence, but I am going to say that what the noble Lord, Lord Conesford, said was not without point and what the noble Baroness, Lady Emmet of Amberley, said coincided with my own views that in 1919 this was the position, and in 1935, when the noble Lord, Lord Conesford, referred to his first enlightening another place—


I think it was the year 1937.


I suspect that in that year the number of women who could get up from the Back Benches of your Lordships' House to put forward the point of view of women was extremely small—in fact, non-existent. Public opinion has moved towards the target, which I am sure we all desire, that, without any special mention, women are automatically considered in the same way as men are considered, on their merits and rights, and that nobody needs to be reminded that our population is bisexual —no, that is not right!—consists of two sexes. If that is the target which we are seeking and which, looking round your Lordships' House, I see we have already reached, I should have thought that my noble friend Lord Janner might share with me the view, which is undoubtedly a common one, and which as the noble and learned Lord the Lord Chancellor has made clear is in the forefront of his mind, that we need not continue with that indelicate and unattractive topic, the statutory woman. I would agree with my noble friend that unless we are out of our heads, we should not seek to lose the benefit of the charm and distinction of the noble Baroness, Lady Tweedsmuir of Belhelvie, and send her on to the Bench. So I hope it will be felt that there is no need to press the point any further and, having regard to what the noble and learned Lord said, that it is now right that I should ask your Lordships to permit me to withdraw the Amendment.

Amendment, by leave, withdrawn.

12.23 p.m.

LORD DIAMOND moved Amendment No. 263JJJJ Page 72, line 23, after (" the") insert ("Secretary of State for Scotland after consultation with the ").

The noble Lord said: This Amendment follows happily after the discussion we have just had, because the noble and learned Lord the Lord Chancellor has made half my case for me by saying that a Lord Chancellor is responsible to Parliament and can be questioned on the appointments which he makes. Therefore, we may expect that the appointments made would be of the kind which the noble and learned Lord has indicated he will favour, if possible, so long as he occupies the Woolsack. The difficulty is that the Lord President is not responsible in the same way to Parliament. It seem.; to me that we could get the best of both worlds—namely, the wisdom and knowledge of the Lord President and the answerability of the person appointing—if we arranged that the person nominated should be nominated by the Secretary of State for Scotland (who for Scotland would be the residuary power, I suppose) after consultation with the Lord President. The Secretary of State would be answerable to Parliament and the Lord President would be able to supplement his consideration of nominations with the necessary knowledge. I should think that that would be a very good arrangement. I beg to move.


I can quite understand why the noble Lord, Lord Diamond, has moved this Amendment. Of course, it is a problem that there is in Scotland no exact equivalent to the noble and learned Lord the Lord Chancellor. But when we are considering this Amendment in this context, we have to look at other examples in similar contexts. The effect of the noble Lord's Amendment would be to place the nomination of the Scottish Judge or Judges in the hands of the Secretary of State for Scotland and not in the hands of the Lord President of the Court of Session, despite the fact that the Secretary of State would be obliged to consult the Lord President. But there are very relevant precedents for drafting the Bill as it is now. The Scottish Judge in the Restrictive Trade Practices Court is nominated by the Lord President of the Court of Session, and the N.I.R.C. will be of the same standing as that court. It is also relevant to say that the president of the Scottish industrial tribunal is appointed by the Lord President of the Court of Session. This follows the recommendation of the Committee on Administrative 'Tribunals and Inquiries, which recommended that the chairmen of tribunals in Scotland should be appointed by the Lord President of the Court of Session or by the Lord Advocate. That is really why the Bill is drafted in this way, and I therefore cannot advise your Lordships to accept this Amendment.


I am rather disappointed at the contribution which has been made by the noble Baroness, because, although she is perfectly correct in the precedents which she quoted, I think it would have been much better if in regard to these two subsections the practice that is being followed could have been backed up by the sort of argument which we have just heard on the previous Amendment from the noble and learned Lord the Lord Chancellor. As the noble Baroness has said, there is in Scotland no exact equivalent of a Lord Chancellor, who is at one and the same time a member of the Government and (if I may risk saying the other part wrong) as near as may be the head of the Judiciary. In Scotland the nearest approach to the head of the Judiciary is the Lord President of the Court of Session but, as my noble friend has said, he is not responsible to Parliament. There are a number of cases where Parliament has felt that the task of making an appointment should be entrusted to the Lord President, but in this case the argument put forward by the noble and learned Lord combined the advantages of that being done by someone who is non-political in part of his duties and at the same time responsible to Parliament.

There are also precedents in legislation for appointments to be made in the way suggested in the Amendment, by the Secretary of State for Scotland after consultation with the Lord President of the Court of Session. This works admirably. It means that the Secretary of State will not (I put it deliberately as will " instead of " can ") appoint someone who is unacceptable to the Lord President. I think therefore that if this Amendment were accepted it would match up much better with the concept that the Lord Chancellor stated on the previous Amendment. I could find little to disagree with in what the noble and learned Lord was saying on the previous Amendment. I was therefore not at all dissatisfied when my noble friend sought leave to withdraw his Amendment. I think that the Government would be well advised to accept this Amendment, which is amply backed by precedent, and which over many years has been shown to work satisfactorily.


This is a question of constitutional importance. I recognise the points which have been put by the noble Lord, Lord Hughes, and I take account of what has been the practice to date. I cannot say that one wishes always to add to the burdens of the Secretary of State on what is essentially a judicial matter, when the Lord President must know better than anyone else who is suitable, but the Amendment does take that into account and says that the Secretary of State should consult with the Lord President. I do not feel able on a matter of such great constitutional importance to accept this Amendment. I think one could give arguments either way, as has been done this morning. Therefore I would say to the noble Lord, Lord Diamond, that I should prefer to consult with my right honourable friend and see whether there is any major objection to putting the question the other way round.


May I suggest that if it were felt that this was adding to the already great burdens of the Secretary of State, a possible alternative would be " the Lord Advocate after consultation ", although I must say that the precedents that exist are much more in favour of its being the Secretary of State.


With reference to that, I think if it were not to be the Lord President it would have to be the Secretary of State, because I have served in another place when the Lord Advocate was not a Member of either House.


Could it be that the judge should be appointed by the Lord President of the Court after consultation with the Secretary of State—in other words reversing the responsibility and leaving it entirely to the Lord President of the Court to make the final decision? At least he will then have consultation with the Secretary of State.


I think that would be the wrong way round. The advantage of the Amendment is that it provides a Parliamentary responsibility. The disadvantage of what my noble friend has proposed is that it would take it away again.


I would point out to my noble friend Lady Tweedsmuir that while the Lord Advocate in her day was occasionally not elected a Member of the other place, there is now growing a custom, which I and many people in Scotland hope will develop into almost a rule, that when the Lord Advocate is not a Member of the other place he is made a Member of this House. That would get over that difficulty. We have a good example with the first Lord Advocate, who sat in this House and performed the duties; he was in touch with things and gave them assiduous attention in dealing with Scottish business, and he was impartial to a degree. With that example before us, I think there is every reason for giving full consideration to naming the Lord Advocate.


I thank my noble friend for his contribution. Of course, all the matters that have been raised in this short debate will be passed on to my right honourable friend. Perhaps in these circumstances, if we undertake to consider it, the noble Lord will see fit to withdraw the Amendment.


This has been a valuable debate, and although our views in this matter are very strong we do not feel that a constitutional matter of this kind will be best advanced through the Division Lobbies: it is best advanced by taking account of the knowledge of the noble Baroness. I am bound to say that my noble friend Lord Hughes made a valuable contribution, as indeed did the noble and learned Lord the Lord Chancellor on the earlier Amendment. So there is obviously a good deal of feeling all round the Committee that this is a matter which deserves further and full consideration. I am bound to say also that, although we are grateful to the noble Baroness for undertaking to look at it further, we have a very clear view about it. I do not want to press the matter too far in present circumstances, but I can say that our view is that the time is ripe to-day for this alteration. I will not go further than that.

I recognise completely the excessive burdens on the Secretary of State, and the noble Baroness will know that his burden is wholly excessive at the present time, without this further duty being added. Therefore the argument really is to do something about the impossible way in which the Secretary of State for Scotland is expected to carry out his duties, being in two categories at once, and being unable ever to get the right civil servant at the right time. I would support the noble Baroness or any Government who wanted to alter that arrangement so as to make the life of the Secretary of State bearable. But that is not an argument which prevents the acceptance of the proposal that is made in this Amendment.

The noble Baroness will have recognised that her precedents are valuable, but not conclusive. Therefore we very much hope that it will be possible on reconsideration to meet the sense of this Amendment. If the noble Baroness's point was (I do not think it was) that " consultation " is not a strong enough word, then it is up to her to say, instead of " consultation ", something like " in agreement with ", or whatever words seem appropriate to her. I do not wish to interfere in that matter at all. Our desire is merely to get the benefit of somebody in the same position as the noble and learned Lord; that is to say, answerable and fully informed as to the method of choosing and the personalities from whom the choice is to be made. I am sure that all this will be fully taken into account, and with your Lordships' permission I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DIAMOND moved Amendment No. 263LLLL:

Page 72, line 42, at end insert-— () Individuals and trade unions or organisation of workers appearing before the industrial court or industrial tribunal shall be eligible for legal aid in accordance with legal aid regulations.

The noble Lord said: This Amendment adds a short additional paragraph to this clause giving the right to be eligible for legal aid in accordance with legal aid regulations". Let me say one word about "legal aid regulations". That makes it clear that nobody is asking for any special benefit beyond that which is available to other members of the population. The legal aid regulations deal with the question as to whether aid is economically financially necessary or not. The point that this Amendment makes is that individuals, trade unions, or organisations of workers appearing before the new Industrial Court or the old Industrial Tribunal shall be eligible for legal aid. This is a matter to which I know the Government are not wholly opposed; in fact, I think they are sympathetic to it. They gave an undertaking in another place that this matter was under consideration. I hope that I do not need to make the point at all, and I will listen first to what the Government have to say about it. I beg to move.

12.40 p.m.


A special provision for legal aid is not required for the Industrial Court. That is already capable of being dealt with by regulation under the Legal Aid and Advice Act 1949, and it is my intention to make legal aid available in the ordinary way to persons who appear before the Industrial Court. My predecessor was advised in 1968 by the Lord Chancellor's Advisory Committee on Legal Aid not to make legal aid avail able before industrial tribunals. 'That is my current advice. The reasons given then may gradually be becoming obsolete. Therefore I do not want to close my mind to this point, but that is the advice I must take at the moment. The reasons given can be found in paragraph 12 of the 1968 Annual Report of the Committee. They said the argument in favour was that it gave employers an advantage because they could have lawyers. Well, I am sure that I curtsy to this implied compliment to lawyers, but the Report went on to say that however advantageous it was to have lawyers, employers practically never availed themselves of this great advantage, and that normally both sides appear in person, or if non-personally the personnel manager, in the case of a limited company, appeared for the employer and, where the worker was not appearing personally, normally a trade union official, or somebody of that kind, appeared. As one who has appeared against trade union officials, I must say that some of them are very formidable advocates indeed.

My predecessor was advised that legal aid was not necessary before industrial tribunals and at the moment I propose to take that advice, although this is something which may change from time to time; obviously new responsibilities are being given to industrial tribunals under this Bill. But personally I think it would spoil the character of the industrial tribunals both under their existing jurisdiction and the proposed extended jurisdiction if they were made too legalistic. At the moment, I am against that part of the Amendment butt in favour of the first part of the Amendment. It is contrary to the principle of the Legal Aid Act, and it could not be made compatible with the Legal Aid Act to give legal aid to associations and organisations. You only give it to individuals. This is inherent in the whole conception because there is a means test for legal aid which has to be applied. I hope the noble Lord will withdraw his Amendment; I am more than sympathetic to the spirit underlying it, but with the qualifications which I have given.


We have a number of Amendments down later on the Marshalled List on this point. I welcome the assurance by the noble and learned Lord about his attitude and proposed actions on legal aid for the Industrial Court. We are a little disappointed about the attitude to the industrial tribunals. I entirely take the point that they are meant to be informal, that they are not meant to get to the stage where a great deal of legal representation is necessary. Nevertheless, they are an important part of the Bill. They probably will have a lot of work to do, and I think it would have been an advantage if legal aid was available to people appearing before these tribunals. I am pleased to know that the learned and noble Lord has not shut his mind to the possibility; I hope he will go further and continue to open it even further over the forthcoming weeks and months.


As one who has appeared on many occasions before tribunals to plead the trade union case, I appreciate the observations of the noble and learned Lord. So far as the Industrial Court is concerned, it is essential that there should be legal protection provided. Once we bring the law into industrial tribunals it means the loss of the informal atmosphere where arguments take place between people who have knowledge of trade union matters. On behalf of everybody concerned, it is better to leave it to the trade union representatives as distinct from the legal fraternity coming in at this particular stage.


If a person who is a member of a trade union decided to proceed individually to the Industrial Court, rather than through the trade union (although at some stage the trade union might be ultimately affected) would he still be entitled to legal aid, or would it be said that he is a member of the trade union, and this is a matter which encompasses more than the individual?


He is entitled to legal aid. Before a court of that standing he is entitled to select his own legal advisers. He will get legal aid if he is qualified from the point of view of means. He can also appear in person if he prefers to do so, as some people do.


There is one point which I do not think the noble Lord, Lord Popplewell, has completely considered: there may be before industrial tribunals individual workers for whom the trade unions are unwilling to act because they do not necessarily take their side in the particular dispute, and for whom the employers will not necessarily act. It is those persons for whom we should take special care.


In such cases a friend can always appear, if the person feels inarticulate or is unable to appear. Such a friend is sometimes an effective counsellor. The industrial tribunal is only one of a whole range of tribunals, and one does not want to specially arrange the tribunals so that they will be suitable for the kind of expertise that a professional advocate quite properly shows. I would not be eager to alter their ambience and character in this way by making legal aid available.


The same point arises on later Amendments; we can consider the matter again. I am delighted to hear that the Government propose to make legal aid available before the court. So far as tribunals are concerned, the noble and learned Lord referred to the advice of the Advisory Committee. It is fair to say that at the time when I asked the Advisory Committee's opinion there was no money available at all for legal aid or advice. I told them that, and said that presumably, sooner or later, I should he able to get some more money for extending legal aid and advice. I said that there were many things outstanding: the legal aid limits had not been raised for about six years to allow for the fall in the value of money. They had never been applied to any tribunal. There was a great dearth of legal advice. I asked what the priorities were, but said that they should not open their mouths too wide, because if and when there was money available it would obviously be of a limited character. Is bringing the basic figures up to date the most important matter? Ought we to be expanding the legal aid? I said: " Considering all the tribunals, before which of them do you think legal aid is most necessary? There is also the whole question of legal advice." I was not surprised when they did not open their mouths too wide. As to tribunals, they thought that the one tribunal for which there was a real need was the Lands Tribunal, and that need has been covered.

This Bill is going to change entirely the nature of the industrial tribunals, and the complexity of the issues which the industrial tribunals will now have to decide are very much greater than anything they have had to decide so far. That is a matter which ought to be taken into account when one asks how an individual, who may not be a member of a trade union, or have a trade union behind him, is to appear and argue the complex issues which industrial tribunals will now have to decide under this Bill.


While accepting the two points of the noble and learned Lord the Lord Chancellor, that you should not try to extend legal aid to corporations or corporate bodies, and that you should keep industrial tribunals as clear as possible of technical legal argument, I should like to clear up a point which may have been in the noble Lord's answer, and which I may have missed. Is it possible for the. other side to employ counsel or a solicitor in these circumstances? If it is, should it not be possible for legal aid to be available?


It was implicit in my answer, although I did not state so explicitly. Anybody can employ a lawyer, and trade unions can employ a lawyer on behalf of their members. In some cases employers do. But one can exaggerate the advantage of a professional advocate in circumstances of this kind. I have appeared occasionally before informal bodies professionally in years gone by. Obviously, there are people who need a professional advocate and there are people who do not. But, broadly speaking, if one can call on a trade union official, he is just as capable as the kind of advocate one would he able to employ. And if Sir John Simon (if I may use a respected and deceased name) suddenly appeared, it would probably do more harm than good.


As I understand it, lawyers are not now attending tribunals of this type. If lawyers or solicitors are going to attend these tribunals on behalf of one side, legal aid ought to be given to the appellant with a view to his also engaging a solicitor if necessary. My previous observations were based purely on the informal atmosphere of tribunals in the past where both sides put forward their case, as distinct from legal representatives on one side against those on the other.


The noble Lord is misinformed about that. Professionals do occasionally appear before these tribunals, but normally they do not. Personally, I do not particularly want to extend their use in this specific field. It would in some ways spoil the tribunal. I promised the noble and learned Lord that I would keep my mind open. As I think I said, I recognise that the functions of tribunals will alter as a result of this Bill, but personally I have great confidence that the matters which they will deal with will be of the simpler kind, and I have great confidence that they can do so on the basis of their present atmosphere. But I have undertaken to keep my mind open, and I think we must wait until we have a little experience before we can do more than that.


Will the noble and learned Lord keep his mind open regarding the individual? Let us assume that the employers and trade unions are capable of looking after themselves, with their personnel officers and union officials. But what about the inarticulate individual? It seems to me that if we could somewhere give him an opportunity of having professional advisers it might help.


I curtsy once more to the implied compliment to the legal profession, but my mind is generally open on the subject.


I think there is a broad measure of agreement about the whole of this topic. The noble and learned Lord has been good enough to say specifically that individuals are eligible for legal aid when they appear before the N.I.R.C. He has said that trade unions and organisations of workers are not, and I recognise that the Amendment did not include organisations of employers. I assume that, for the same reason, even if they were they would be unlikely to qualify, and therefore I do not press that point at all. But what we are all equally agreed about is that industrial tribunals have worked satisfactorily within the scope which was previously theirs. Indeed, I share the noble and learned Lord's view both that the ambience should be kept as much as possible to its present nature, and that, certainly from my own experience of sitting on the other side where a counsel appears unusually in a very informal tribunal, one has to be careful to remove from one's colleague's mind the automatic reaction that as counsel is appearing one must deduct at least 10 per cent. of what he says to be fair to the other side.


This is the trouble.


Exactly. One really has had to do that; and this is a very natural reaction of the objective mind of a considerate but inexperienced member of a tribunal. Therefore, I share the noble and learned Lord's view that it is not necessarily to advantage, in cases where justice can be done without it, to have somebody come and speak for the worker or whoever is appearing before the tribunal. And, of course, one would want so far as possible (and the sentence the noble and learned Lord used was to my mind admirable) to keep the tribunals in their present informal condition and not to increase the technical aspects—he put it a good deal better than I am doing. So what we are really concerned with is what is going to happen in the future with regard to industrial tribunals. Will the extension of their authority and scope necessitate appearance of counsel frequently enough to make the extension of the legal aid regulations necessary? I would far prefer that practice showed that it was not so, but if experience in fact shows that it is necessary, the noble and learned Lord has undertaken to keep an open mind on it. That is quite satisfactorily and I beg your Lordship's permission to withdraw the Amendment.

Amendment, by leave, withdrawn.

12.56 p.m.

On Question, Whether Clause 95 shall stand part of the Bill?


After the spritely debates to which we have listened this morning, I must apologise for reducing the Committee to a rather more humdrum note in putting certain questions to the Government on the Motion that the clause stand part. Subsection (6) of the clause incorporates part of Schedule 3, Part II and parts of Part V. I should have thought that it would probably be more convenient to the Committee and to keep the argument more in order if at this stage, on the Question that Clause 95 stand part, I put certain questions to the Government on those parts of Schedule 3 which are relevant to this clause. If that is to the convenience of the Committee I shall proceed upon that basis.

Schedule 3, Part II begins at page 130, and it is that part of it that deals with the Court. The first question I should like to ask the noble and learned Lord the Lord Chancellor (if he would be so kind as to consider it, because I should have thought it was directly within his province) is this. I do not know whether he has any plans yet as to the number of judges he thinks it will be necessary to appoint. It has been recent experience that the burden upon judges has been growing, and indeed the number of judges that have to be appointed has increased. I should have thought that it was a matter of some public importance to consider how much in the way of extra burden is likely to be imposed upon the Bench as a result of the appointments that will be necessary. I can well understand the noble and learned Lord saying that his plans are not precise on that at the moment and that he will wait to see how experience shows that the volume of work increases as apportioned to the Industrial Court.

If one then turns to the Schedule, one finds in paragraph 16 of Part II that: The Industrial Court may sit, in accordance with directions given by the President of the Court, either as a single court or in two or more divisions… ". Then, in paragraph 15 we see that it may sit at any time and in any place in Great Britain. What I should like to ask the noble and learned Lord also, when one is considering broadly speaking how this scheme is going to work, is what is his thinking with regard to the number of divisions and the sort of places it will sit in? What provision at the moment is there for accommodation for the Court? The Explanatory Memorandum of course gives some general indication as to the extra finance involved, and quite naturally some extra finance will be made necessary. But I should have thought it would have been interesting to all those concerned, a very large body of the public, to have at any rate a general idea as to where they may expect to find these courts; how many of them, and about how many judges there will be. That I should have thought would have a bearing, for example, on the question as to how soon it will in practice be possible to get cases actually dealt with by the Court. Is there a danger of arrears being built up, and so on? I should be grateful if the noble and learned Lord the Lord Chancellor would give us such indication as he can on those points.

When we turn to page 132 of the Schedule, again we should be grateful if we could he given some indication as to how the noble and learned Lord the Lord Chancellor envisages that the provisions of paragraph 18(4) will work. I do not criticise the provision, but I am simply asking how the Government think it will work. It requires the Court to exercise its jurisdiction in such a way as to enable the parties to avail themselves of the services of conciliation officers or of other opportunities for conciliation. I emphasise that I am speaking with no note of criticism on that: it may be an arrangement which will work to the advantage of both sides. But supposing one has a heavy matter before the Court, is it the intention or the hope that the tribunal will say, " We will not deal with this. We will adjourn for two or three months so that it can be gone into "? I am not saying it would be a bad arrangement, but I should be grateful for some indication of the Government's thinking on this matter.

Paragraph 18(6) says: …the Industrial Court shall seek to avoid formality in its proceedings… I can understand that in the case of the industrial tribunals, but I am wondering how far it will be practicable when one thinks of the kind of issues to be decided before the Industrial Court itself. If one thinks of Clauses 92 to 95 and the sort of industrial practices on which the Court may be called upon to pronounce, how far will it be possible to conduct proceedings such as those in an informal way? That is a question I myself feel a little uncertain about. Generally speaking, I should have thought that the issues which are almost certain to be raised, for example, in considering Clause 93—that deals with sympathetic strikes, and I know that the noble and learned Lord Chancellor has in mind to change it somewhat—are almost bound to be cornplex and will involve a considerable amount of evidence and a great deal of examination of documents, which will cover considerable time. I am wondering whether the desire of the Government as expressed in this wording that the proceedings before the Industrial Court must be on an informal basis, is capable of any degree of realisation in practice. Surely there must be full speeches on both sides. It would be difficult to visualise trade unions and employers engaging in a dispute arising under Clauses 92 to 94 and not requiring a counsel and junior counsel and the proceedings not lasting for some time. May I say again that I am not speaking critically of what is proposed, but am wondering whether this will produce any practical result.

I turn now to paragraph 19(c). Rules are going to be made and they will specify more precisely what is envisaged in sub-paragraph (c). On the whole I should have thought it was rather novel to have rules which enable a court to review its decisions and change them. It is certainly done in the county court but I should have thought that the High Court would only review or revoke a decision if it could be shown by a party that the decision had been procured by some sort of fraud practised on the Court. I do not know whether the rule is meant to be limited, broadly speaking, along those lines or whether there is to be a general jurisdiction conferred upon the Industrial Court to change its decision. Some considerable delay could be occasioned and, indeed, a certain amount of uncertainty. Again, the Government may wish to see how it works in experience. I can understand that.

Reference has already been made to the question of whether parties will appear by solicitors or counsel or by other people. Paragraph 21 deals with that, and I will not take up further time on it. An important matter on which I should be grateful for the Lord Chancellor's view arises on paragraph 22(1), which is rather more than machinery and goes back to principle. Your Lordships will remember that when we were discussing the provisions contained in Clause 16 of the Bill with regard to an application by both sides to the Industrial Court for an approved closed shop, an Amendment was put down from this side of the Committee proposing that where a joint application was made and where a closed shop was already in existence the Industrial Court should be enabled to make an interim order. The argument of substance upon which that proposal was based was that the effect of Clause 5 of the Bill would be that where you have a closed shop agreement in existence which has worked perfectly satisfactorily for many years, when that clause comes into operation it would of necessity come to an end. Then there would be a hiatus which might last for many months before the decision of the Industrial Court could be obtained on a joint application by the union and the employer for an approved closed shop.

The case made was that this was a very undesirable situation and if possible some machinery should be provided to bridge that gap in time. For that purpose an Amendment was put down to give power to the Court to make an interim order in a situation of that sort. I wonder whether the power asked for could be said to reside in any event in the first two sub-paragraphs of paragraph 22 at the top of page 133. The noble Lord, Lord Windlesham, I believe, made a full and helpful reply when the previous Amendment was being discussed, but he did not refer in his answer to the provisions of paragraph 22, to which I have just drawn attention. In considering why he did not refer to these, it occurred to me that possibly that paragraph is not sufficiently wide to achieve the effect. The relevant words were: …to make, as an interim order, any order which under this Act the Court could make as a final order in the proceedings. What occurred to me, on thinking over the matter, was that it was likely that the noble Lord had not referred to that paragraph because it is very uncertain, until one has the result of the ballot and the Commission's report upon an application for an approved closed shop, what order the Court is in fact enabled to make as a final order in the proceedings. Possibly that led him to the view which I assumed he held, that this particular paragraph was not adequate for the purpose we then had in mind. This is a paragraph which enables rules to be made. This would have to be within the powers conferred by the paragraph, but I should be most grateful if the noble and learned Lord the Lord Chancellor would give an indication of his view whether those rules would enable the Court to make an interim order of the kind I have described.

If a joint application were made by the parties for an approved closed shop, could the Court at an early stage after the making of the application make an interim order to keep in being an existing closed shop until the final decision could be made on whether an approved closed shop was appropriate in the circumstances? I have ventured to take a little time on this subject because I feel sure that the noble and learned Lord the Lord Chancellor will agree with me that whether there should or should not be any power to keep in being an existing approved closed shop, the matter is one of great importance in many industries and it requires the closest attention. I very much hope the noble and learned Lord will be able to say that in his view the scope of paragraph 22 is wide enough to enable him to make rules which would empower the Court to make such an order, and that it is his intention to make such rules. The noble Lord, Lord Windlesham, said the real answer was that the parties should make an agency shop agreement. I would respectfully submit that that does not adequately deal with the problem.

The next point I should like to make on the Schedule concerns paragraph 23. I should be grateful to know what is the thinking of the Government behind the structure of that paragraph. The court is only empowered to make an order for costs in very limited circumstances; namely, "where in the opinion of the court the proceedings were unnecessary, improper or vexatious" or "where there has been delay or unreasonable conduct". In that sense the power to order costs is very much more restrictive than the ordinary power of the courts, which confers upon the courts a much wider jurisdiction. By contrast with this I think the noble and learned Lord will agree with me that when one is talking about industrial tribunals their power to award costs is very close to the power vested in the ordinary courts, and I wonder why the Government think it appropriate to impose this rather strict limitation on the discretionary power of the Industrial Court. It might well be said that the balance of argument was the other way, and I put this forward for consideration. As 1 said earlier, if we consider the kind of issues that may arise—I refer to Clauses 92 to 94 and Clause 34—in the sort of case in which there is a breach of an industrial collective agreement, the proceedings arising out of that may be long, they may be costly and they may involve expensive representation on both sides. Prima facie, suppose you have a trade union which successfully defends itself against an allegation that it has embarked upon an unfair industrial practice—or if an employer so defends himself —it does not seem reasonable that the trade union or the employer should not have a reasonable hope of getting the ordinary party costs order which would be made in an ordinary court.

The next question I should like to ask is in connection with paragraph 27. Would the Government indicate what their thinking is on the question whether the finding of fact of the Industrial Court should be unappealable. simply repeat what I said as to the possible complexity of the issues which may have to be tried, and when one looks at the compensation limits one realises that the case might result in very heavy compensation. It might result in the payment of £100,000 many times over. One hopes that it would not, and my anticipation would be that rarely would there be a case of that sort; but there might be. In those circumstances is it really wise to say that there shall be no appeal on fact?

Those are the issues I wish to raise on that aspect of the matter and I hope the Committee will feel that although that is a rather pedestrian set of questions to put to the Government at this time on Thursday morning, nevertheless it is in the public interest and it is our clear duty in examining the provisions of the Bill to ascertain the thinking of the Government.

1.13 p.m.


The noble Lord has asked a great many questions—not that I complain of that, but my pencil has been rather behind his speech, so I hope that I have taken an adequate note of them all, and I hope I will have an answer, at any rate for some of them. I believe I have one advantage over the noble Lord. I think he retired from the Bar before he was able to appear before the Restrictive Practices Court—


Oh no; I appeared several times.


In that event he will know the answers to most of the questions because this Court is to be modelled upon the Restrictive Practices Court, and one hopes that the practice will be comparable to that particular Court, and—


May I just intervene as the noble and learned Lord has referred to me? I appeared in cases which went on, I think, for weeks before that Court; they involved enormous expense on both sides in the case and resulted in decisions affecting very large sums of money.


And, of course, if the noble Lord was employed they were bound to cost a lot of money. I am bound to say that that is not the only kind of business which the Restrictive Practices Court did, or the ordinary length at which it occurred.

First, there is the question of the number of judges. I do not think I can give any foretaste of that because it must depend upon the workload which emerges, and I really think I should need a crystal ball to ascertain that. My thought is to appoint a President of the Court and to come to Parliament from time to time if I have to exceed the existing ceiling of judges under the ordinary procedure. I shall have to justify by Affirmative Resolution the appointment of any fresh ones. I imagine that the Secretary of State for Scotland, or whichever Minister is ultimately made responsible, will do the same for the Court of Session or the Scottish branch of the Court, but I think I shall have to go by experience. Fortunately, I think one will know in time (so that there shall not be undue delays) the kind of workload which is developing; and according to the terms of the Bill we shall have a reserve in the whole of the High Court and Court of Appeal, so we shall be able to second judges and deploy them if a sudden emergency were to arise. But I shall start with one; namely, the President of the Court. That is my present intention.

The number of divisions must depend upon the workload. and again the model is the Restrictive Practices Court. Of course practice must differ according to whether oral evidence is to be taken or whether the principal point at issue is a point of law or something depending upon affidavit evidence. The latter probably will take place in London or in Edinburgh, but of course if a large number of witnesses is required Mohammet will come to the mountain rather than the mountain to Mohammet. This again to some extent will have to be played by experience. but the idea is to make justice available where it is most convenient to the parties, and I think that can be easily done. I do not think that there is danger of arrears—at least I hope there will not be so much danger of arrears as has sometimes developed in the High Court of Justice. I sincerely hope that this will not be so, and that Parliament will be co-operative if the workload develops, and will be ready to appoint judges, or to allow me to appoint judges if the necessity arises. But naturally Parliament, quite rightly, is restrictive on this subject and does not want the Lord Chancellor to appoint judges unless he makes out a case for them: that is to say, to appoint judges beyond the ceiling which he has been given by Parliament.

As regards conciliation, of course that must depend upon the nature of the proceedings; but it is the intention of the Government that the Court should make it its business (and that is why it is in the Schedule) to see that all the conciliation that can be attempted should be attempted in every case. Sometimes emergency situations will arise when conciliation is obviously inappropriate, but where those concerned have not exhausted their own means, or where the chances of conciliation are possible it will be the business of the Court to enable the parties to avail themselves of conciliation facilities in the shape of conciliation officers.

It is not, of course, the business of a court which is ultimately to determine rules itself to conciliate. This is quite inconsistent with the judicial function. But it is consistent with the judicial function to see that conciliation has been tried and exhausted. All the time I have been listening to noble Lords opposite saying that law is not a good way of settling industrial relations I have been almost tempted to say " Amen " or " Hear, hear " or other words of approval, because we do not regard law as the first resort. We do not like the " trigger-happy " in litigation; we regard legal proceedings as the last resort and not the first, and we hope that conciliation will be attempted. I fully recognise that the noble Lord's experience of the Restrictive Practices Court may have led him to doubt whether informality is practicable. This may depend on the nature of the proceedings. I think what he will not remember from his experience, but will see from the Act, is that among other functions the Industrial Court has rights of appeal from industrial tribunals; therefore, a certain amount of the work it will be taking will be quite small work on appeal from industrial tribunals, and obviously quite different considerations will apply in that sort of case from what applied in the kind of case in which the noble Lord was professionally engaged.

Obviously, what one wants to do is not to tie oneself too closely to the formal rules of evidence, not to insist upon any rigid rules as to who may appear for whom, not to tie oneself too closely to the formal pleadings, provided that the opposite party is not taken by surprise by a new allegation, and on the whole to conduct all proceedings as may be most appropriate in accordance with the rules of natural justice and the type of advocate appearing before the court. One does not want, in other words, to tie oneself necessarily to the proceedings of the High Court.

The provision to review the decisions is really again based on the Restrictive Practices Court, which I think has a similar power, and experience has shown, of course, that where the Court is infallible on matters of fact another point to which the noble Lord referred—there must be some power of review, which is not limited to cases of fraud. The county court has had it for very many years, and experience has shown that it is not abused. I think that will be a useful provision here, and when we come on to it the noble Lord will see that we are giving the same power to industrial tribunals by another Schedule. I think this is a useful form of flexibility, and I do not think we need apologise for it.

The noble Lord reverted in his comments on paragraph 22 to the discussion we had about closed shops. I think he rather misunderstood what my noble friend Lord Windlesham was trying to say on that occasion when he referred to the agency shop, or else my noble friend misunderstood what the noble Lord was trying to put to him at the time. What my noble friend Lord Windlesham was referring to, I think, was the potentiality of the existing closed shop agreement to be translated into an agency shop without any undue delay or difficulty. What the noble Lord is putting to me now is whether there should be a hiatus in respect of an existing closed shop agreement before the procedure has been gone through and it can be authorised. My thinking is that the correct way of doing it is not by way of an interim order under paragraph 22, because, although at the moment the words of the paragraph are sufficiently wide to cover such an order, I think it would be inconsistent with the other Schedule we have discussed.

My thinking is that the commencement provisions in the Bill are the correct way of preventing a hiatus. One hopes that the commencement provisions will be used in such a way that ample notice will be given before provisions regarding a closed shop are put into effect and that people will notice that this is likely to happen where an existing agreement is to be affected and the operation of the court can be put into effect well in advance; because I do not believe that it is at all right that a hiatus should exist, and I hope administratively it will he preventable by the kind of machinery I have described. I doubt whether paragraph 22 is the appropriate way of doing it, even if I am wrong about that, because I do not think it would he appropriate for the Lord Chancellor to make rules to deal with a substantive matter of that kind. But I think it would be very difficult for the Lord Chancellor to make rules under paragraph 22 of this Schedule which would comply with the procedural requirements imposed by the substantive provisions of the Bill relating to closed shops and the Schedule which specifically deals with it.

The costs provision is modelled on the Restrictive Practices Court provision, which is almost, I think, verbally identical. The noble Lord from his experience will be able to confirm that. The reason for that is this. In ordinary contentious litigation the loser pays. That is quite right. And in this respect, of course, this country is, if not unique, slightly exceptional. In America, for instance, there is no similar rule, although they operate our rules of play in almost every other respect, or rather the rules of play we had about 100 years ago. They do not have the " costs follow the event " rule. The rule proposed here follows the Restrictive Practices Court. The reason is that broadly speaking, in litigation, if you enter into a contentious proceeding, you ought to pay if you lose. But here in many cases parties will have to go to the court and, as in the restrictive practices case, it is on the whole unfair where a resort to the court is necessary that a party should be made to bear more than its own costs, and only where its behaviour has been improper is it thought to impose the costs of others on it.

Always litigation—and this is one of the many reasons why I do not like litigation; and I think those of us who have been engaged in it all our lives probably like it less than enthusiastic clients who approach the bar of justice for the first time—costs money, and no litigation if it is to be just in its result can be done cheaply, because cheap justice is nearly always nasty justice. Therefore, it imposes a hardship on those who indulge in it, intrinsically in its nature. We think it should be kept as cheap as possible here; hence the rules about informality and conciliation; and we also think it is hard to make the unsuccessful party pay in cases where a resort to the court for one purpose or another is necessary. It is, of course, easy to see that an individual who had to pay the costs of, let us say, a rich employer, in a case which lasted some lime, would be crushed by the burden. and it is as much to protect such an individual as for any other reason that we have stopped the general rule of costs following the event. The real truth is that the provision was put into the Restrictive Practices Court and has justified itself by the event. I am not sure whether I have answered all the questions.


There is the point about questions of fact.


There again this is following modem practice. As the noble Lord says, one of the most important questions of fact is the question of damages. Take any libel case you like to mention—take the P.Q.17 case, which may be coming up to this House in its Judicial capacity—the parties have to incur enormous expense if there is a right of appeal on questions of fact. In this case, and in all previous cases of this sort in the Restrictive Practices Court, it is thought right to limit questions of fact. This has been so for many years. My mind turns immediately to the Insurance Commissioners, who very often decide the whole future of a person entitled to hold a pension, which sometimes involves prolonged investigation as to fact. They are still considered to be infallible, and the courts cannot interfere, except on law or jurisdiction. This is found to be to the advantage of everybody. The Court has, and ought to have, powers of review, and this ought to take the place of the appeal on questions of fact.

1.32 p.m.


Having listened to the two very eminent members of the legal profession for this last hour or so, I wonder how many noble Lords feel, like I do, that this confirms the point of view that we have previously expressed; that the passing of this Bill, and the establishment of these courts, is setting up a cumbersome machinery that is entirely unjustifiable when dealing with industrial relations. In the past these matters have been dealt with in an informal atmosphere and with success, and this has been in keeping with this country's low position in the world table of industrial disputes. One naturally raises again the question as rto whether this journey is really necessary at all.

It is alleged against us on this side of the Committee that in opposing this Bill, and in particular the establishment of these courts, and pressing for the continuation of the voluntary system, that we are adopting a completely negative attitude. The noble and learned Lord the Lord Chancellor mentioned a little earlier that possibly the trade unions will freely accept the will of Parliament and once this Bill becomes an Act, get on with the job. Trade unionists are law-abidinc, people, and there may be something in what he has said. However, this indicates a complete failure to understand the very strong feeling there is that only the trade unions, as free societies, can secure for the workpeople a desirable status, and get them away from the second-class citizenship to which many ordinary work people appear to belong. It is only by good industrial relations that the progress which has been made over a number of years will be able to continue.

With the increase in educational development which is taking place, and with the people who have benefited from it coming into industry, they naturally seek a new outlook and are demanding that the workers engaged in an industry should have more share in a wider sphere of decision-making. This demand is not confined to this country alone; it is spreading throughout the whole of Europe. To attempt to bring in this new legal framework of courts which will determine the pattern of relations in industry not only will impinge upon many of these rights and lines of thought, but will introduce a rigidity in industrial relations that I am sure is not in the real interests of collective bargaining, and will mean departing from the flexibility which is now there.

I think that the legal enforcement of written agreements that must come before the industrial courts and the other courts will ultimately lead to a major loss in productivity. This is a serious matter. The introduction of these courts, instead of encouraging co-operation between the works and management, will introduce a bitterness each time an employer takes a trade union or workers to the courts. This is something which has been completely underestimated by the Government. In this particular connection, the N.I.R.C. will be, in all but name, the High Court. As has already been pointed out, its President. and Chairman will, according to the Act, be appointed from the Higher Judiciary. The noble and learned Lord the Lord Chancellor, so far as he personally is concerned, appeared to indicate that he would not necessarily look to the Higher Judiciary and that it was possible to seek further afield. However, that is not in the Act.


I think the noble Lord must be mistaken about that. The Bill distinctly provides that the legal judges of the Industrial Relations Court shall be High Court Judges or above. They are not the only members of the Court. It is quite unlike the High Court, but is like the Restrictive Practices Court. There will be a sitting of lay members—not assessors—with the judge. There will be either three or five (I suppose according to the nature of the proceedings), the same as in the Restrictive Practices Court. It was there that I said we should he looking far afield, not in relation to the judges, on which point the Bill is quite specific.


May I intervene, just to make clear what the noble and learned Lord the Lord Chancellor has just said, that the members of the Court other than the judges will not be assessors as they are in, say, the county courts? That being so, may I ask the noble and learned Lord whether they will take part in, and be parties to, the decision at which the Court arrives?


The county court does not normally sit with assessors; nor does the High Court. The only case that I can think of off-hand where the county court is required to sit with lay members is in the race relations context. But in the case of the N.I.R.C. these members are not assessors; they are full members of the Court, and will participate fully in the decisions and although on questions of law they would naturally defer to the judge, they could out-vote him.


That brings me to the next point I was making, that the Chairman will he appointed in the way described and will sit with two lay members. These two lay members, it is suggested, must have some industrial relations experience. The composition of this Court in this way creates a suspicion, at any rate, in the opinion of the trade unions as a whole, that two of the members are not likely to be sympathetic to the trade unions as a whole. There is no certainty that the third man would be sympathetic either particularly at the present moment with the hardening of the attitude of the trade unions. There is nothing in the Bill to the effect that the unions would be asked to make any suggestions of persons to be appointed to the Industrial Court, but the natural sequence would be something in that direction. Therefore there would be not one member of the Industrial Court who was sympathetic towards the trade unions. Again, the Bill states that the N.I.R.C. should encourage and afford facilities for conciliation. That is rather strange and does not conform with what is taking place. For years the Ministry's conciliation officers have held the respect of both sides of industry and have done a wonderful job of work. But the establishment of these Courts will reduce the powers of the conciliation officers instead of strengthening them, and once the wheels commence to turn and a case is referred to the Courts there will not be the early settlement which is so necessary.

Furthermore, the Industrial Court is being brought into the policy-making decisions of the unions, which are matters which High Court Judges who have no experience of industry have never been called upon to adjudicate. This cumbersome machinery is being established in order to do something which has hitherto been done amicably between both sides of industry, with little or no disturbance. A fund of good will has been gradually built up and that is now to be put in jeopardy by this Bill. The noble and learned Lord the Lord Chancellor said that he hopes that with the passage of time Parliament will be co-operative in this direction. Some of us hope that with the passing of time, and with a new Government, many of these clauses will be annulled.


I am really very shocked by the speech of the noble Lord who has just sat down. He is surely undermining the whole idea of proper justice in the courts of this country by suggesting that members who are appointed to the Industrial Court will go there with a deliberate bias, one way or the other. That is surely a wrong attitude to take and it is one which I am afraid shocks me very profoundly.


May I make a short intervention? It will be particularly brief, because I am speaking as a non-statutory woman. I am against this very important clause. I know that it will change the Statute Books in this country, but the changes will not go so far as the shop floor and plant negotiations. Those will hardly be changed at all. I am afraid that the Government will eventually be disappointed about this clause. I should like to reassure my noble friend Lord Popplewell that some of his fears are perhaps exaggerated, because this clause, being a " scissors and paste" edition of American law, will not work as the Government think it will work. In the United States they have learned to live with their laws and few employers would jeopardise a strike settlement by sueing a union for damages. Though the United States has legislation on which ours has been patterned, last year it had four times as many days lost per employee as did Britain. I know that we all choose our statistics according to our views, but I have not made these up; I saw them in an American article. It is true that the United States has fewer unofficial strikes, because it has a systematic grievance procedure at factory level. But this clause does not touch that important part of industrial relations, and in that respect the Bill is very weak. So the whole legal set-up of this clause will work only if it is not used, and that is the main reason why I am against it.

1.48 p.m.


Before your Lordships part with this very important clause which will have far-reaching repercussions, I should like to indicate my view and, I think, that of the trade union movement about it. We refer to it as the machinery clause, the nuts and bolts of the business. In a most interesting way, the noble and learned Lord has explained to us how he hopes the machinery will work. I gather from what he said that he very much likes this piece of machinery in Clause 95, but the trade unions dislike this Part of the Bill very much. The debate to-day has revealed, as have our debates on other topics, that the gap between the Government and this side of the Committee is very wide indeed. In fact, it would not be an exaggeration to say that on some points—and this is one—the gap is unbridgeable. The noble and learned Lord the Lord Chancellor said that cheap justice is nasty justice. The implication of that is that the operation of the proposals in Clause 95 is going to be a pretty expensive business. The only observation I would make about that is that this Bill is creating the injustices that the N.I.R.C. will have to deal with.

Clause 95 contains proposals for the setting up of the machinery to operate the Bill when it becomes an Act. My own reaction to the establishment of this elaborate legal machinery is this. The Government give the impression that the ultimate regulation of industrial relations and the solution to the problems in industry is best left to the legal courts and the lawyers. I do not believe that for one moment. If that is the belief of the Government they are barking up the wrong tree. The proposed N.I.R.C., as I understand it, is to be the cornerstone, the lynchpin, of the Government's machinery. I believe, as does a large volume of opinion in trade union circles, that the proposed legal machinery in this and succeeding clauses of the Bill will be detrimental and damaging to good industrial relations.

What the Government are proposing, far from improving industrial relations, is more likely to create friction within industry and be responsible for generating bitterness. The proposed legal machinery is wrong in concept, and in operation it will not be conducive to good industrial relations. These proposals are not the result of a proper and balanced study of the industrial relations problem, but in my view are the child of prejudice and political dogma. I personally am opposed—and, from conversations that I have had with responsible people in the trade union movement, that movement is also opposed—to the institution of the legal machinery proposed in Clause 95. Neither the N.I.R.C. nor the industrial tribunals will be conciliatory bodies as I understand it, in spite of what the noble and learned Lord had to say to my noble friend Lord Stow Hill —and conciliation in industrial relations is very important. Smoothing out differences without the threat of penalties in the background is necessary and important.

In my opinion—and the noble and learned Lord the Lord Chancellor has not said anything to make me change my view—-this conciliatory attitude will not be the role of the National Industrial Relations Court. Their functions—and the noble and learned Lord the Lord Chancellor has emphasised it this afternoon—Will be strictly judicial. Instead of looking at and considering any issue brought before them and how best to resolve it, the Court will be enforcing legal rights and obligations, with penalties on trade unions as organisations, on individual officials and on individual members: and non-compliance, as I understand the proposals in the Bill, would mean imprisonment. Machinery of this kind will not lead to industrial peace and good will. Under these proposals there will he more and more litigation and less and less negotiation. hope your Lordships will give due consideration to the proposals which are put forward in Clause 95, because in my humble judgment—and the future will reveal whether one is right or not—they will be both detrimental and damaging.


I shall be very brief. There are two points I should like to make. The noble and learned Lord the Lord Chancellor said earlier that he thought that when the will of Parliament had been made manifest in this as an Act of Parliament, the trade unions would conform or would co-operate. In another connection, there is a very famous dictum: tax evasion is illegal, tax avoidance is legal. It seems to me that what the Government have to look at is how this law, whatever it is, may be avoided. I referred on a previous occasion to the York memorandum, which notice has now been given by the engineers' trade unions to terminate. Another agreement will some day, presumably, take its place on a national level. If the trade unions insist on having written into that agreement that no agreement arrived at under these terms, or whatever the form may be, or nothing arrived at in the future, will be legally binding on either side, what can the Government do about it? What can they do about the industrial tribunal or anything else which flows from that situation? It seems to me that the trade unions will be in a very powerful posi- tion not to operate a law they do not like. So the question is whether or not a law can be framed which they do like.

1.57 p.m.


I do not know whether the noble Lord would like to reply, perhaps. to what I said, but I rose before to answer a number of technical questions which were put to me by the noble Lord, Lord Stow Hill, and although I took some time there were, I think, about 15 questions—I hope the Committee will feel that I had to answer them out of sheer courtesy to him. I do not think, if I may say so respectfully, that the noble Lord, Lord Popplewell, or the noble Lord, Lord Taylor of Mansfield, have said anything which they have not already said on some other part of the Bill, and I will come back in a moment briefly to say something to them.

To turn to his two new points, the noble Lord, Lord Pargiter, has just said that the provision about enforceability can, in effect, be sabotaged. I admitted that when we were dealing with that particular clause, but I added, and I think I can add now in a sentence, that when unions realise that to be able to enforce agreements against employers carries with it certain advantages, I do not think they will sabotage it. I think that in due course they will come to see more and more that the Bill confers more advantages on them than it imposes disabilities.

I am sorry the noble Baroness. Lady Gaitskell, has gone before I could reply to her, but one thing she said was quite inaccurate. She said that this clause was a " scissors and paste " version of American law. Whatever else can be said about any other clause in the Bill, that is not so. This clause is peculiar to the system of this country. If it is a " scissors and paste " version at all, which is not something I am prepared to concede, it is a " scissors and paste " version of the Restrictive Practices Court. That court has its virtues and its vices—and, like the noble Lord, Lord Stow Hill, I have had the advantage of appearing before it—hut on the whole I think that over the years its virtues have been recognised, although at the time the Bill setting up that Court went through your Lordships' House (and I was at that time a Back-Bench Member of this House) I remember exactly the same sort of speech being made about the Restrictive Practices Court as is now being made about the N.I.R.C.

Coming back to the noble Lords, Lord Popplewell and Lord Taylor of Mansfield, while I suppose that it is no use saying so to them again, I think that, purely for the accuracy of the Record, it is important to say again: that this Court and its legal procedures are not intended to be a substitute for conciliation. If we thought that we should be crazy; but we do not think it. Conciliation is best, and litigation comes a long way after it. That is why we have provided that before this Court goes into operation it must satisfy itself—and again and again my noble friend Lord Drumalbyn has been saying this in answer to the same speeches from the same quarters opposite—that the conciliation procedures have been exhausted; and the Secretary of State has made it his special duty, both in the Bill and outside it, to see that those conciliation procedures are used. It is just as foolish to say that this Court is in substitution of or interferes with conciliation as it would be to say that the Marriage Guidance Council is useless because we have a Divorce Court.


Let me put a case. A dispute has arisen on a certain principle. It goes eventually to the N.I.R.C. and a judgment is made. Some time after that there comes another type of dispute that will probably go, to start with, to conciliation. The conciliators, instead of having an open, balanced line of approach, will then say that the N.I.R.C. have come to a certain decision over this kind of case; so in this way case law is then established. Does that not curtail the activities of the conciliation officer?


The noble Lord made a basic mistake in putting his question. He said that the dispute goes to the N.I.R.C. and a judgment is given. The whole basis of what we have said is that before the matter gets to the N.I.R.C. conciliation must be set up and exhausted. That is the answer to the noble Lord.

To come back to what the noble Lord said at the beginning of his first speech —and Lord Taylor of Mansfield said it also—they said that this procedure will cost a good deal of money. I agree that in many cases proceedings before the N.I.R.C. (although not in front of the Industrial Tribunal) will, like all other legal proceedings, cost a good deal of money. But they are not intended to be a substitution for negotiation or conciliation; they are intended to be a substitution for strikes. And although legal proceedings are expensive, let me tell noble Lords opposite that they are a good deal less expensive than strikes. And that is why we are proposing what we are proposing.


There is no doubt —and my noble friend Lord Taylor of Mansfield expressed it—that there is an unbridgeable difference between us on this clause, which is one of enormous importance. Although we are grateful to the noble and learned Lord for the way in which he dealt with our comments during the course of the discussion, and although my noble friend Lord Stow Hill (he regrets that he cannot be here) specially asked me to express his thanks to the noble and learned Lord for the great courtesy he showed in answering so fully the detailed questions arising out of my noble friend's speech, we are nevertheless bound to divide the Committee on this clause because we are so wholly opposed to it.

All I should like to say in conclusion, because I think the arguments have now been put thoroughly, is that I share the views of my noble friend Lady Gaitskell to whom the noble and learned Lord referred and who was making the point essentially that a good deal of this will be irrelevant and will be sidestepped. I am delighted to hear that the noble Baroness, Lady Emmet of Amberley, was shocked by what my noble friend Lord Popplewell said, and I am delighted that the noble and learned Lord was shocked by what I said; because that means that at last both of us are starting to do our duty in making the Government and their supporters realise that the anxiety of all on our side, and of all those whom we represent in this country, is that the introduction of this machinery will bring the law into disrepute. It is an anxiety that the noble Baroness may in due course come to share, and because of it we propose to divide the Committee.

2.5 p.m.

On Question, Whether Clause 95 shall stand part of the Bill?

Resolved in the affirmative, and Clause 95 agreed to accordingly.

Clause 96 [Extended scope of industrial tribunals]:

2.13 p.m.

On Question, Whether Clause 96 shall stand part of the Bill?


May I ask a question on this clause? I think the Committee will agree that in the 15 days during which we have considered this Bill

Their Lordships divided[...] Contents, 94; Not-Contents, 38.

Aberdare, L. Effingham, E. Morrison, L.
Aberdeen and Temair, M. Ellen borough, L. Mowbray and Stourt[...], L.
Ailwyn, L. Elliot of Harwood, Bs. Oakshott, L.
Airedale, L. Emmet of Amberley, Bs. Orr-Ewing, L.
Albemarle, E. Falkland, V. Penrhyn, L.
Alexander of Tunis, E. Ferrers, E. Poltimore, L.
Balerno, L. Gage, V. Rankeillour, L.
Balfour, E, Goschen, V. [Teller.] Reigate, L.
Balfour of Inchrye, L. Gray, L. Roberthall, L.
Barrington, V. Greenway, L. Robertson of Oakridge, L.
Belhaven and Stenton, L. Grenfell, L. Rochdale, V.
Belstead, L. Gridley, L. Ruthven of Freeland, Ly.
Berkeley, Bs. Grimston of Westbury, L. St. Aldwyn, E.
Boston. L. Hailsham of Saint Marylebone, L. (L. Chancellor.) St. Helens, L.
Brooke of Cumnor, L. St. Just, L.
Brooke of Ystradfellte, Bs. Hankey, L. Sandford, L.
Byers, L. Harris, L. Sandys, L.
Chester, L.Bp. Hatherton, L. Selkirk, E.
Chichester, L.Bp. Henley, L. Semphill, Ly.
Clwyd, L. Howard of Glossop, L. Sinclair of Cleeve, L.
Conesford, L. Hylton-Foster, Bs. Stamp, L.
Courtown, E. Ilford, L. Stradbroke, E.
Cowley, E. Jellicoe, E. (L. Privy Seal.) Strange of Knokin, Bs.
Craigavon, V. Kinloss, Ly. Terrington, L.
Cromartie, E. Kinnoull, E. Tollemache, L.
De Clifford, L. Latymer, L. Tweedsmuir of Belhelvie. Bs.
De La Warr, E. Loudoun, C. Wade, L.
Denham, L. [Teller.] Lucas of Chilworlh, L. Wakefieid of Kendal, L.
Digby, L. Mar and Kellie, E. Ward of Witley, V.
Drumalbyn, L. Margadale, L. Willingdon, M.
Dudley, E. Massereene and Ferrard, V. Windlesham, L.
Dundee, E. Mersey, V.
Archibald, L. Henderson, L. Segal, L.
Bernstein, L. Hughes, L. Shepherd, L.
Beswick, L. Leatherland, L. Shinwell, L.
Birk, Bs. Lindgren, L. Snow, L.
Brockway, L. Llewelyn-Davies of Hastoe, Bs. Sorensen, L.
Buckinghamshire, E. McLeavy, L. Stonham, L.
Burntwood, L. Moyle, L. Strabolgi, L. [Teller.]
Champion, L. Pargiter, L. Summerskill, Bs.
Diamond, L. Plummer, Bs. Taylor of Mansfield, L.
Evans of Hungershall, L. Popplewell, L. Williamson, L.
Gaitskell, Bs. Royle, L. Wootton of Abinger, Bs.
Gardiner, L. Sainsbury, L. Wynne-Jones, L.
Garnsworthy, L. [Teller.] Samuel, V.

I have occupied very little of the time of the Committee. This is an important clause because it is the one which extends the jurisdiction of the industrial tribunals. The question I want to ask (I do not expect the Government to answer today, but I hope they will do so when we return after Whitsun) is: What is the anticipated case load in respect of each jurisdiction of the industrial tribunals. I am sure I have missed things in going through the Bill but I have only succeeded in identifying 14 different jurisdictions. The first five I do not think will cause the Government any difficulty, and I am bound to say that I should regard the Government as behaving very irresponsibly if they have produced this Bill without estimating to the best of their ability what the case loads are going to be. The first six will provide no difficulty because they exist now: (1) under the Contracts of Employment Act 1963; (2) under the Industrial Training Act 1964; (3) under the Redundancy Payments Act; (4) under the Docks & Harbours Act 1966; (5) under the Selective Employment Payments Act 1966; and (6) under the Equal Pay Act 1970. These are quite simple because the Government must know what the case load is now. When I say " case load ", I mean the number of tribunal days which are occupied in dealing with cases under each of those jurisdictions. If the Government consider that the case loads of the future in respect of any of those six is likely to change, no doubt they will tell us.

I have heard it suggested that cases under the Selective Employment Payments Act are likely to be halved because the amount is being halved. I do not follow that reasoning myself. What has to be decided is whether an employer is liable in law to pay this tax on behalf of this group of employees. Either he is or is not liable. Why the number of cases should fall because the amount of the tax decreases, I am not at all clear.

The second point concerns cases of unfair dismissal. I know this raises very difficult questions. I think I am right in saying that it is estimated that these cases would number between 30,000 and 100,000 a year. I said at once that this was absolutely impossible; that the industrial tribunals, however much expanded, could not possibly take the cases and that something must be done to reduce the number. I said, first, that the Minister must provide conciliators who would act as a sieve (it was not a popular suggestion but it was accepted); next. that certain classes of employees would have to be excluded, not because it was right to exclude them but simply because it was so essential to reduce the case load to something which was manageable. I bear in mind what the noble Earl, Lord Jellicoe, said on Friday, May 14, at cols. 1500 and 1503 of the OFFICIAL REPORT, and I was amazed to hear that his estimate, or the Government's estimate, of unfair dismissal cases was a quarter of a million. If that is really so I should like to know—


May I intervene for a moment? Speaking from memory, I think what I was saying, or meaning to say, was that were it not for the exceptions the case load would be a quarter of a million. But the noble and learned Lord will know that it was our estimate that something like 80 per cent. of the cases, 80 per cent. of a quarter of a million, would arise in the first two years. This is one of the exceptions.


I was very glad to hear the noble Earl say that it was the Minister's intention to give up the excluding class as soon as possible. In effect, the Government have taken the same steps as we were going to take in our Bill to reduce the case load as much as possible. The position seems to me to be a serious one. The industrial tribunals are extremely good. I shall not. I hope, be saying anything tactless if I say that some chief justices from Commonwealth countries are rather better at dealing with cases in which ordinary English people are involved than others. The President of the Industrial Court, himself a former Chief Justice of a Commonwealth country, is not only a first-class lawyer but a really brilliant administrator. About 18 months ago the industrial tribunals had heard their 10.000th redundancy case. I never had one complaint from an employer, or from an employee, about any of those 10,000 cases. They are very informal; everybody is made to feel at ease; everybody is told on what day and at what time their case is going to be heard. They give all-round satisfaction. He has achieved a considerable measure of uniformity of decisions.

There may be ten of these tribunals a day sitting in London alone and in other regional centres. I have seen his notes to chairmen about the format which their judgment should take; what points ought to be covered in redundancy payment cases and what points ought not to be covered. He is at pains to obtain mostly senior junior barristers as legal chairmen, but even after allowing for the fact that after two years cases may be fewer, I cannot imagine what is going to happen if the anticipated case-load is so much greater than the estimates which were given to us. There are not the lawyers in the country to deal with all these cases. I know that even with something like 30.000 the President was forced to realise that now nearly all his chairmen would have to be local solicitors. He has, I think, to realise that he could not maintain the same standards as the industrial tribunals maintain now. Therefore 1 should like to ask what is the Government's latest information about that matter.

The others I can mention briefly. Here again I suppose that the Government must have some estimate of the number of cases. No. 8 is disputes as to union membership under Clause 5; No. 9 is disputes as to contributions under Clauses 7 to 9; No. 10 is disputes under Clause 64 to 68; No. 11 disputes as to provisional registration under Clause 79; No. 12 disputes as to non disclosure of information under Clause 55; No. 13 disputes as to breaches of rules under Clause 108 and No. 14 disputes as to breaches of contract. Of course, in our Bill none of the disputes of this kind would have gone to industrial tribunals at all. So when one is considering the effect of the case loads on disputes about unfair dismissals one has now to take into account that about half a dozen or more further jurisdictions have been given to the tribunal.

The other thing which concerns me very much is the effect on the tribunals of delay. It may be that somebody is applying for reinstatement because he says he has been unfairly dismissed. It may be tolerable for it ordinarily to take a year to get a case heard in the High Court, but what on earth is going to happen if an industrial tribunal gets a case load which it simply cannot manage and a man involved in a case of that kind has to wait a year? I am not asking the noble and learned Lord the Lord Chancellor for these figures to-day, but I should be grateful if I could have them after Whitsun.

2.23 p.m.


The noble and learned Lord, Lord Gardiner, said that he did not want a reply to-day and so he will not be surprised to know that he is not going to have a reply to-day. I should like to comment on one or two of his thoughts. I dislike the idea of a " crystal ball ". I do not like giving estimates of a figure unless based on some calculation. When, for instance, the noble and learned Lord says that in respect of unfair dismissals the last Government were working on a bracket of 30,000 to 100,000 that is surely such a wide bracket as to be almost valueless for any purpose—and probably is likely to be wrong, too. The largest element by far in the new case load will be unfair dismissals. Obviously this will present—alhough one cannot predict to what extent, if the bracket is as big as the last Government estimated—the president and the tribunal, and, I suppose, the Lord Chancellor and members of tribunals, with certain logistic problems.

I would say this, humbly, to the noble and learned Lord. We are working, roughly speaking. on the same calculations that he was, although a year later, so I suppose that in detail they will be different, and the only difficulties under this head, the only statistically very important ones, that we shall have to face will be difficulties such as he would have had to face in respect of the Bill which he sponsored a year ago. So I do not know quite what inferences he asks me to draw from those difficulties. The fact is that if you are going to introduce a new form of action, like unfair dismissal, you make up your mind that this is the form of justice you propose to administer and do what is necessary to administer it at the highest level you can. Or you do not. The last Government came to the conclusion that they wanted to; our conclusion has been the same. And our difficulties will not be greater; they will be identical, with a year's grace to think about it.


I am bound to say that that really is not so. The last half dozen new jurisdictions were not in our Bill at all and would not have been there.


When the noble Lord comes to read in Hansard what I said, he will see what I said was limited to the unfair dismissal jurisdiction. I think it almost impossible to give an estimate in such cases and if an estimate were given I should expect it to be widely wrong. One has to calculate first how many unfair dismissals there have been in the past. We know something of that, and if the noble and learned Lord wishes I can give him a copy of a reply on that subject which was made in the Commons some few weeks ago, based on social surveys and therefore in itself inaccurate. But this gives you no guide to what will happen in future, for three quite separate reasons. The first is that one does not know whether. had there been provisions for compensation, how many of these unfair dismissals would have taken place at all. One of the things one hopes from compensation is that it will deter unfair dismissals; that they will not take place, and then they will not form a significant statistic. The next thing one hopes is that when the new law comes in many cases will be settled through the good offices of solicitors or trade unions. Again, so far as I know, one cannot calculate that on any intelligible factor. Some will not be brought at all, very likely because the employee will get another job and will not want to waste his time appearing before a tribunal. That is a factor one cannot calculate.

After the first flow of cases some cases will not be brought at all. Once the first flow of cases has taken place people will know how they stand, and the number of contested cases will fall dramatically, if other jurisdictions are any guide. Then again there is the time limit—I think of a month—in the Schedule now, and one does not know how many people will fall outside the time limit, and so forth. The fact is that you are to some extent in the dark when creating a new right. Of course. one must make provisional plans, but to describe as " figures " a provisional plan based on some kind of an instructed guess is, I think, to mislead people. In the case of the unfair dismissals jurisdiction what we shall be doing will be approximately the same as the last Government would have been doing, and we shall experience approximately the same difficulties.

To some extent the same things will apply on the other jurisdictions. Obviously, in some cases to alter the jurisdiction does not alter the number of cases at all; you simply alter the amount of notice or redundancy pay- ment, or whatever it may be, and the same cases appear before you but with a slightly different result. When you are dealing with the reduction in a tax, like selective employment tax, I think, despite what the noble and learned Lord says. that it is reasonable to expect a smaller flow of cases. There is, I think, a general law which you can apply to taxation: it is that the lower the tax the fewer people try to get out of paying it and the higher the tax the more they try to get out of paying it. The noble Lord, Lord Diamond, shakes his head because of his experience as Financial Secretary, but I do not altogether accept even his judgment on this matter. At any rate, " Hailsham's Law " is that the lower the tax the less people try to avoid it.


That has been said ever since income tax was sixpence in the pound, and it has been used on every occasion when the tax went up by a few coppers. However, to return to this clause, the noble and learned Lord the Lord Chancellor will appreciate that we dislike this clause not only for reasons touched upon by my noble and learned friend Lord Gardiner, but reasons which I gave when we were discussing Clause 95 and earlier clauses. I do not feel it necessary to go over the ground again nor, as we divided on the main principle, to ask the Committee to divide again now. We dislike the clause but we propose to let it go through.

2.30 p.m.


Before this matter is put to a vote, may I intervene to say that the Government were good enough to accept an Amendment which I put forward at an earlier stage which would have some effect in limiting the number of appeals. As the discussion on this clause has turned on this matter, I should like to point out that the last Government and this Government are in a cul-de-sac in this respect. The noble and learned Lord the Lord Chancellor referred to the fact that because of a right to appeal against some unfair dismissals the number of appeals would be limited. The thought about both Bills has been that in the presence of a properly constituted internal quasi-judicial appeal system within firms—with some de minimus provision, because it would be absurd to set up in tiny establistments—the effect of appeals would likewise be limited if foremen or works superintendents knew that a dismissal to which they gave effect could be heard at ascending levels of administrative authority inside the company. Believe me, the number of unfair dismissals will be enormously limited by this fact.

I speak from very long experience in this matter. In one concern with which I was associated, having had present in the company for 10 or 15 years the right to appeal to an external legal person (that is the way in which it was defined) in fact no appeal was ever made to that person because decisions about unfair dismissals., and indeed about any other matters felt to be unfair to the individual, were so carefully scrutinised that by the time they got some way up the hierarchy of managers the few that were not settled on the way and where representatives felt that some injustice was being done, were settled by a meeting of representatives of the trade unions involved and the management. Over a period of 25 years I cannot remember a case in which a feeling of injustice was left among those who represented the individual, although of course some individuals personally felt that way because some people ineradically feel that they have been injured whether others concur in that view or not.

The procedure now before the Committee in this Bill, although good in the absence of something better, in my humble submission should have been submitted to a much more searching inquiry into the necessity for explicit quasi-judicial systems of appeal inside every firm over a certain size to deal not only with unfair dismissals but with every form of grievance about which people feel strongly. Had this been done without overloading external tribunals we could have had a way of dealing not only with unfair dismissals but with grievances over a much wider area—an area which in many cases gives rise to strikes. I have never understood why industry as a whole, Government and officials inside Ministries who advise governments have not realised the necessity within industry for the sort of explicit institutions which can render justice such as every citizen has according to law.

I still hope that thought will be given to this matter because it will present the country with something which will cause a great deal of delay. As my noble and learned friend Lord Gardiner said, almost inevitably it is going to lead to delay in these things which will be very damaging to the cases which are subject to appeal. It will limit the area and will not be as satisfactory as would be something much simpler.


The essence of this problem seems to be that there may be a log jam of cases before these tribunals, particularly in regard to wrongful dismissals. The result will be that if a case has to wait for six months or 12 months for hearing very considerable injustice may be done to a man. Can the noble and learned Lord the Lord Chancellor give an assurance that if there is a multiplicity of appeals to this tribunal the tribunal will be duplicated, triplicated or quadrupled so that there may be no undue delay?


It is my intention to create as many chairmen as will be required, although obviously I want to have as few as are needed.

Clause 96 agreed to.

Clause 97 [Complaint to Industrial Court of unfair industrial practice]:

2.37 p.m.

LORD STOW HILL moved Amendment No. 263UUUU:

Page 73, line 23, leave out paragraph (c) and insert— (" (c the complainant is the person intended by the respondent to be immediately affected by such action.")

The noble Lord said: This Amendment would change in effect paragraph (c) of subsection 1 of Clause 97. In my submission it raises a matter of some importance. If one looks at Clause 112 one sees the limits on the amounts which may be awarded by way of compensation in respect of an unfair industrial practice. Your Lordships know the limits; the top limit is £100,000. That is the limit to the amount which may be awarded on a single complaint. If there are several complaints by different persons arising out of the same set of circumstances under Clause 112, then in respect of each of those several complaints a sum of up to £100,000 in the case of a union having a membership of 100,000 or more may be awarded. If there are 10 claimants it might be £1 million. Obviously very rarely will the top level be awarded, but it might be, and substantial amounts might be awarded in respect of the 10 claimants which might arise out of the same set of circumstances.

That being so, it is of critical importance to define very clearly to what one is referring when one speaks of a claimant who may bring a claim. That definition one finds in Clause 97(1)(c), a paragraph which in my opinion is not properly worded. I accept at once that the Government have obviously given thought to this matter because they have changed the language which appeared in the Bill as originally introduced, in a way which would go some distance towards meeting the point that I am trying to put. When they originally introduced their Bill, the persons who could bring claims under what then was Clause 90 and which has now become Clause 97 were much more widely described. The description was: A complainant is a person against whom or to whose detriment the action was taken or who has suffered or is likely to suffer loss in consequence of it.

May I put in an imaginary case, the sort of case which I have had put to me? Company A fetches cars from company B and delivers them to companies C and D. I said cars, but it may be spare parts, raw materials or manufactured goods. Let us assume a complex of that sort with four companies involved. The union which is said, under any of the relevant provisions, to have committed an unfair industrial practice has called out its members who are in the employment of company A. The immediate result of that is to cause company A to suffer loss, and to cause companies B. C and D to suffer loss as well, because company A does not perform a service which it previously had rendered to those other companies. As the clause was drafted in the original Bill, each of those four companies clearly would have been entitled to bring an action, and each of them in respect of that same strike action could have recovered, assuming that the membership of the union was 100,000 or over, up to £100,000. So the total might come to something approaching £400,000, a crippling sum. If that sort of thing were possible, a great many big unions could be crippled. Their resources could be wholly lost.

The Government—-and I am grateful to them for doing so—tried to meet this situation by recasting the definition into the form in which it now appears in the present Bill: The complainant is the person against whom the action was taken. I accept at once that that is an improvement on the previous words. but I submit that it still leaves the position unsatisfactory in the sort of case I have instanced. If one asks those who organise a strike whether they realise that the consequences of their so doing will necessarily be not only that company A will suffer loss but companies B, C and D will suffer loss also, the answer that would have to be given would be, " Yes, we know they will." In those circumstances, would companies B, C and D come within the description of persons against whom the action is taken? I should think that it is arguable that they would. No element of intention is required in order to bring them within the scope of the clause. The whole question is the action taken against them. If we interpret the words in the ordinary English sense, many judges would feel that they ought to conclude that those words would include companies B, C and D. That, I submit, would have disastrous consequences, in that over the years unions might literally be crippled, and I am quite certain that that is not the Government's intention.

In the circumstances, I have tried to devise a form of words which would make the position safe, and the words I submit for the Government's consideration are the words in the Amendment: the complainant is the person intended by the respondnt to be immediately affected by such action ". The safeguard which I seek to introduce by these words is that they import an intention. Unless it can be said that the trade union intends companies B, C and D to be damnified, they are not within the scope. Not only must it be the intention that those companies be damnified for them to be potential complainants, it must go further than that. The union must intend that they should be immediately affected by their action—not indirectly, but immediately.

I submit that in the sort of situation I have described, if the words of my Amendment are embodied in the clause the only complainant could be the company which employs the workers who are called out by the trade union. That is what ought to be the position. I confess that these words were only fairly recently put down and it may well be that the Government have not had time to consider their full implications. I acknowledge at once that it is difficult to find the right formula to bring about the situation one would hope for ideally. All I would ask of the Minister who will reply is that he should be so good as to say that he recognises, as the Government have recognised before, that it is of critical importance to make perfectly clear by definition who potential claimants can he, and either adopt the wording which I have suggested—perhaps that is optimistic, because draftsmanship is an extremely difficult art and I daresay I have got it wrong—or, in the alternative, try to find some formula which will come nearer to limiting the ambit of potential complainants in the sense which I have intended. I beg to move.


The noble Lord was good enough to indicate, and I can confirm, that there seems to be no difference of intention between him and myself as to what the effect of this clause should be, but the best advice that I can give is that the effect of accepting his Amendment would be directly the opposite of what we both want. That is both my own opinion anti the best advice I can get. First, the expression " in— tended " is one which gives rise to a wide range of interpretation. Secondly, to say that the complainant should not be the person at whom the action is aimed, but persons who would be immediately affected by it, seems to widen the scope of the clause enormously. Take the straightforward example of a railway strike. It might well be that a tribunal, if they had those words in front of them, would find that the union had intended and that the result was that passengers would be immediately affected. No doubt an individual passenger's claim would be a relatively small one, but very soon there might be ten million passengers putting in claims if the railway strike went on for any time. I question whether that is what the noble Lord intends by the Amendment.

As regards our own clause, my advice is that although—I am afraid I have forgotten the particular letters with which the noble Lord has labelled the companies in his imaginary case. I cannot remember which is A, B, C and D; as in my geometry lessons I used to forget at which corners of a triangle A, B, C and D were placed. Unless one can remember that, it is not much good remembering the letters.


On a point of fact, does a triangle have corners A, B, C and D or are they limited to A, B, and C?


When I drew them, they often had more. I should like to tell the noble Lord, Lord Stow Hill, if it will give him any satisfaction, that having heard what he said I will consider the draftsmanship of our own clause, without accepting his Amendment. It is our intention to achieve the result which he wishes. We think our present clause will do it but, on the other hand, as he says, draftsmanship is a difficult art and we may or may not have achieved it. I will ask the draftsman to look at it again.


I should just like to thank the noble and learned Lord for saying that he will look at this clause. That is all I asked for. To hope for more would have been wildly optimistic. With great respect, I do not accept the view which he has received from his advisers and with which he is supposed to agree, on his own form of words. 1 beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD BYERS moved Amendment No. 264: Page 73, line 25. leave out (" If, on such a complaint,") and insert (" Upon the hearing of such a complaint the respondent shall be entitled to maintain any defence which upon the same facts would be open to him in any court, but if, notwithstanding such defence,").

The noble Lord said: If we pass this Amendment, then subsection 2 of Clause 97 will read: Upon the hearing of such a complaint the respondent shall be entitled to maintain any defence which upon the same facts would be open to him in any court, but if, notwithstanding such defence, the Industrial Court… and the subsection goes on as it stands. The same principle applies to Amendments Nos. 266 and 267. It arises out of an important statement made by the noble and learned Lord, Lord Donovan, in the Second Reading debate. I hope he will forgive me (for he can speak for himself) if, for the benefit of your Lordships, I quote briefly what he said on April 5 of this year. He was dealing with a number of other matters in the Bill which he thought should be looked at again with a view to improving it. He said at column 42: A defendant who is taken before the ordinary courts of this country by an employer seeking damages for inducement of a breach of contract of employment is entitled as of right to be absolved if he can prove justification. but before the new Industrial Court in like circumstances he must, under the Bill, rely upon the court's discretion as to what is just and equitable. The end result may be the same, but not necessarily so; and it is this which makes the much-criticised advertisement of the T.U.C.—` Shut up and keep working' —as a matter of words literally true when it refers to the possibility of fines. The remedy is to provide in this Bill that any defence which would be open on the same facts before the ordinary courts should be available before the Industrial Court. My noble friends and I thought this was an important point which should be brought up in Committee. No doubt the noble and learned Lord, Lord Donovan, will contribute to this part of the debate, but really this is in the nature of a probing Amendment to find out from the Government whether they have given any thought to this important point. I beg to move.

2.50 p.m.


This, to my mind, is the most interesting Amendment that I have to deal with to-day. I am afraid that that may be a prelude to my being a bit long-winded on the subject, because, appallingly, when one is interested in a subject one tends to obstruct one's own business, which is the greatest crime that a Minister can commit. I started with a strong prejudice in favour of this Amendment and I have been into it at some little length.

Perhaps I might deal with the actual Amendment before the Committee. It will not do. I will tell the noble Lord in a sentence why it will not do, and then get on to the substance of the matter. Under the new unfair industrial practice concept, seldom, if ever—and I am almost tempted to say " never ", which is a word that a politician should never use—can exactly the same set of facts give rise to an action in tort for breach of contract: they are always a little different. Therefore, on the same set of facts no defence would be available to a respondent in proceedings under this Bill as would be available in the ordinary course. I think that is a complete answer to the words of the Amendment, and in one way it probes a little more deeply into the nature of it than at first sight appears.

But both noble and learned Lords, Lord Donovan and Lord Gardiner, drew attention (and one of the subsequent Amendments in the name of the noble Lord, Lord Byers does so, too) to one of the things, at any rate, which underlies it. There is available in actions for the tort of inducing a breach of contract —and in some other cases, but I do not know which—a legal defence to a respondent called the defence of justification. That is not the same as the technical defence of justification which is available to a defendant in a libel action, and it can best be defined by reference to a particular case which is always referred to in this connection. The case is the well-known case of Brimelow v. Casson which was tried in 1924 before the then Mr. Justice Russell. That was a case in which one of the progenitors of Equity, I think, but certainly a protection society for actors and artistes, induced a breach of contract by some chorus girls against a particular impresario, and the impresario brought an action against them for inducing that breach of contract. The defence were lucky enough to secure the services of that formidable advocate Sir Patrick Hastings, who indulged in one of his characteristic and marvellous "tour de force" because he pursued an absolutely ferocious cross-examination of the plaintiff, which destroyed him, and then called no evidence apart from underlining the plaintiff's own admissions in the course of this ferocious cross-examination. He won his case, because, as Mr. Justice Russell rightly said, any decent-minded man would want to come to the conclusion that the plaintiff was wrong.

The legal basis upon which the case was decided was categorised as justification.

Apart from that isolated case, it is almost impossible to say how far it goes, what it means, or what it extends to. I will quote one sentence from the well-known practitioner's textbook on tort, Clerk and Lindsell: To this principle "— that is, of inducing a breach of contract as a tort— some exception has been made on the ground of justification, but it is impossible to lay down any general rule about the nature of this defence. I am afraid that this statement is all too true. The result is that, so far from being a rock upon which you can build for the purposes of this legislation, it is nothing but a shifting sand. I say that with respect, but with absolute conviction, to the two noble and learned Lords who want to introduce this particular conception into the Bill. It does not extend to any cause of action necessarily apart from an inducement of breach of contract, and nobody knows what it means when it applies to the inducement of a breach of contract, except in so far as judges or textbook writers may have discussed the case which I have described, Brimelow v. Casson.

I think that everybody would like to see not only the facts in Brimelow v. Casson, but any similar facts give rise to the same result. I do not think there is any doubt that there would not be a single Member of this House who would not agree with that proposition. The only question is, how? I have come to the conclusion, rather having started from the opposite point, that the Bill as drafted does it, and does it better than in any other way. I should like to say why, and I must apologise to the Committee for indulging in a little lawyer's law, because this is a lawyer's legal point.

If Mr. Justice Russell in Brimelow v. Casson had been faced by the plaintiff with a demand for an injunction and not with a demand for damages, which was the relief sought by Mr. Brimelow, he would have had no difficulty in deciding for the defendants without invoking the mysterious, but indefinite, defence of justification. Being an equity lawyer, he would have said: "An injunction is an equitable remedy"—it does not rest solely in the discretion of the court, although a court has a discretion— "and the principles of equity, rather than what are technically called the principles of law, are to prevail." May I say, in parenthesis, to those noble Lords who affect to despise lawyers that both " law " and " equity " in the last two sentences I have spoken have technical meanings. " Law " meant the rules of Common Law, which was a rather rigid structure, a kind of " Tom Tiddler's ground ", where you were either on one side of the dividing line or on the other. " Equity " was a set of principles evolved by my predecessors on the Woolsack to be exercised to supplement and correct the injustices of the rigid rules of law. And I think (though I am not sure) that that is one of the reasons why the Lord Chancellor is popularly supposed to be the keeper of the Sovereign's conscience. It is because he used to dispense " conscience " rules which were designed to remedy injustices of the law.

So had he obeyed this in the making of an injunction, Mr. Justice Russell would have said, using the words of previous Lord Chancellors, that, " He who seeks equity must do equity, and he who seeks equity must come with clean hands." These are fundamental principles on which equitable remedies were dispensed by my predecessors, when there was a separate Lord Chancellor. So he would have said " Go away, Mr. Brimelow; you are not doing equity and you have not come with clean hands." And no new law would have been made and no doctrine of justification would have been invoked.

The whole basis of this Bill is to try to introduce precisely this conception into the powers of the Industrial Court. If you look at Clause 97 you will see that it says that of the three types of remedy provided, even the remedy of compensation which corresponds to damages and even the remedy of a declaration of rights, which is perhaps more surprising still, is subject to the rule of equity by the deliberate use of the words, " if it is just and equitable ". This is not done out of sheer desire to be vague, but out of recognition that those who come for a remedy to the Industrial Court. unlike those who come for a remedy to the ordinary courts of law, have to establish not merely that they have a legally justifiable case but that it is right to give the remedy which is proposed.

This is not simply a question of discretion which is " as long as the judge's foot ", but a question of having to show that the Court has done justice. If you look at Part I of the Bill you will see that the Industrial Court has to pay attention to the observance or non-observance by the parties of the code of industrial practice—a code which does not have legal effect except for that kind of purpose. Later on, if you look at Clause 111, dealing with compensation, you will find that on a slightly different footing the provocative conduct of one or both of the parties can be used even in the reduction of compensation.

I accept, without qualification or hesitation of any kind the thinking behind the demand that the defence of justification and any comparable defence should be available to respondents to a complaint before the Industrial Court, but I cannot think of any words or of any structure which will do it better than the existing structure of the Bill. And perhaps I may say this to the noble and learned Lord, Lord Donovan, who has been so patient with us throughout while his various doings have been discussed on all sides; one of the very few things with which I disagreed in the excellent speech lie made to us on Second Reading was his equating of an unfair industrial practice with a statutory tort. That is just what it is not. It is something which gives rise to an equitable remedy at the hands of the National Industrial Relations Court. It is something that gives rise to a remedy which if you please is discretionary but which has to be applied with equitable principles, instead of strictly legal principles, prevailing. And this equitable principle prevails in cases where compensation is sought as a remedy, just as much where the quasi-injunction or mandatory order is invoked as a remedy.

I regard this as a continuing debate. I do not say " No, we cannot look at it again ", or "I am certainly right ". This is where I have got to, having started rather from the opposite point of view, and I would ask the noble Lord, Lord Byers, and other distinguished noble Lords who have put their names to this Amendment, to consider the possibility that I may be right and that this flexible approach, based on the recommendation of the principles of equity, almost as the old Chancellors used to apply them in salving the Sovereign's conscience, is the right way to deal with this. I think this is the best I can do at this stage.

3.5 p.m.


If I may say so, I go a very long way with the Lord Chancellor, particularly when he says that the defence of justification is not something that has been spelt out with any precision: it is still somewhat uncertain. I wonder whether this is not the occasion to make it a bit more certain, particularly when we are dealing with a situation in which provocative actions of employers or the imposition of intolerable conditions of work lead someone not only to walk out but to persuade others to walk out, too. Surely if we can expressly give them the defence of justification here, we shall have done something of benefit not only to the law generally but also in the particular context of this Bill. I say that because there is a great deal of misconception and misunderstanding about what constitutes an inducement to break a contract. The debate went on for some time either yesterday or the day before about this particular matter.

Many trade unionists think that, however intolerable the conditions of work, however intolerable some action of the employer, they must not persuade other people to walk out at once. They have probably never heard of the defence of jusification, but they probably have read a particular advertisement which appeared in The Times on February 4, 1971, and in which appeared this statement: Suppose on top of all the monotony and frustration the place where you work becomes intolerably hot and the management has refused to listen to your complaints: as a last resort you may persuade others to stop work until something is done about it. If the Bill becomes law and you do this the management will sue you for an unfair industrial practice. One accepts of course that in a case of that kind if the employer was so foolish as to lodge a complaint of an unfair industrial practice the Court would almost certainly give effect to the defence of justification, because the action would be just and fair and equitable, even though the defence of justification was not there as something expressly available. But there is a lot of difference between being entitled to an acquittal as of right and being entitled to an acquittal at the discretion of the Court; and if this defence were expressly provided in the Bill it would save a great deal of anxiety among trade unionists and would prevent a great deal of misrepresentation. I am grateful to the noble and learned Lord the Lord Chancellor, for making it clear that he has not said the last words upon this subject and that he will consider it again. In the light of the facts to which I have drawn attention, I think it might be worth while.

3.10 p.m.


One of the delightful things about your Lordships' House is that when any place or any occurrence is mentioned somebody is able to rise and say, " I was there ", or " I did it ". The noble and learned Lord the Lord Chancellor referred to the ferocious cross-examination which a party in a law suit underwent at the hands of Sir Patrick Hastings. I was one person who, in a libel case, once underwent ferocious cross-examination by the late Sir Patrick Hastings. Fortunately, I had Birkett on my side.

So far as many of us are concerned, the noble and learned Lord has been blinding us with science. We were certainly not able to follow him. Getting down to the basis of the situation, I believe that a person should not be deprived of the defence of justification. My life has largely been lived in the world of libel and I know that the plea of justification in that particular realm is of basic importance. We have been told that the Industrial Court is a Court which is to have a learned judge of the High Court presiding over it. All that the Amendment suggests is that the privileges that are open to a party in an ordinary court shall be open to a party in this court; namely: the respondent shall be entitled to maintain any defence which upon the same facts would be open to him in any court… Although I am unable 10 follow all the legal technicalities, I feel that the defences open to a person in an ordinary court should be open to a person in this Court. if this Court is to receive the element of confidence that one should have in any court set up to deal with such delicate matters as industrial relations.


The noble Lord, Lord Leatherland, has echoed the feelings which I and my noble friends had in putting down this Amendment. The noble and learned Lord the Lord Chancellor has been fair with the Committee; I cannot pretend that I followed in every detail all the arguments that he put forward, but the advice I had from my noble friend Lord Beaumont on this was prophetic. He said: " If I were you. I should state the problem and let the lawyers fight it out ". That is what we are doing.

I accept the assurance from the noble and learned Lord that he wants to see equity prevail in these cases, that he wants to see the plea of justification used if it is possible to do so, but that he thinks that the words in the Bill at this stage will equally well allow the defence of justification, I take it that he has not closed his mind to looking at this problem again and studying it with other lawyers and other noble Lords well versed in the law. 1 will withdraw this Amendment; but before I do so, I should like to suggest that we do not have too many excursions into the new Conservative basic French. I always thought that tour de force was the singular, but tour de forces was never the plural.

3.14 p.m.


Before the noble Lord withdraws his Amendment, I agree that my French is of the school of the Stratford-atte-Bow, but I meant to pluralise it in one way or another. May I just put this thought into the minds of noble Lords and in the mind of the noble and learned Lord, Lord Donovan: my mind is not closed. and if anybody can think of something better than I have thought of I would eagerly grasp at it in this particular instance. May I say to the noble Lord, Lord Leatherland, that I try not to blind people with science. In the course of my life I have acquired a little knowledge of law. I have always tried to explain it in terms which people can understand. I was trying to do this, whether successfully or unsuccessfully, in what I said to the Committee.

I want to put into the minds of those who sponsored this Amendment not that I am offering less than they have asked for, but more. The first proposition is that whatever else is true about the defence of justification (and practically no other proposition can be confidently stated about it) the burden is on the defendant to raise it and prove it. That is certain. If what I said earlier is valid —and I am sure that it is—it will be for the plaintiff to exclude it, because the burden of proof will be on the complainant on the present terms of the Bill to establish not merely the facts which give rise to the unfair industrial practice, but to the right to the remedy in equity as well as in law: and not only in equity in the strict sense of the word, although that word has been deliberately introduced into the Bill, but also in justice. Before the Court can make its Order the complainant must satisfy the court, in justice as well as in equity, that the remedy should be afforded. Although I agree with the noble and learned Lord, Lord Donovan, that there has been misrepresentation and that there has been misunderstanding about this, I hope that this debate will do something to diminish it. I do not know how I can express myself more plainly or more confidently than I am doing now. If my shortcomings are such that I have not got the point across, I do not know what more I can do to put it across.

I shall be grateful for suggestions, provided I am not asked to build upon a shifting sand instead of a rock. The defence of justification as it exists in this field is shifting sand. The noble Lord, Lord Leatherland, must not be misled by his experience of libel to think that the relatively stable defence of justification in libel has any relevance to what is being discussed here.


I beg leave to withdraw my Amendment.

Amendment, by leave, withdrawn.

3.18 p.m.

LORD STOW HILL moved Amendment No. 264B: Page 73. line 27, leave out (" well-founded") and insert ("justified on the balance of probability").

The noble Lord said: I do not wish to initiate a long discussion in moving this Amendment, but I move it in the belief that it raises a point of principle which requires consideration and the existence of which, if we pass this clause, we should be fully conscious. I am not necessarily doing this in a critical sense, but it is important. Technically, what the Amendment seeks to do is leave out " well-founded " and substitute for that word, " justified on the balance of probability ". That looks rather a cryptic change, but I submit it discloses a point of principle. I am sure the Committee enjoyed very much the exchange between the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Donovan on the last question. Their expositions were extremely valuable and helpful.

The noble and learned Lord explained that basically the jurisdiction given to the Industrial Court (and also when one looks at subsequent clauses to the industrial tribunals) is, if I may use a shorthand term, an equitable jurisdiction. The change which I am suggesting would go some way back to putting it on a purely common law basis. It substitutes the well-known test in civil proceedings that you prove something on the balance of probability for the more indeterminate expression that you find something to be well-founded. The reason behind that is this. I am very anxious not to trespass or, rather, to trench upon controversial matter, but I am quite sure that I shall have the agreement of both sides of the Committee when I say that the jurisdiction that one is under through the terms of this Bill vesting both in the Industrial Court and in the industrial tribunals—probably more in the Industrial Court than in the industrial tribunals—is a jurisdiction which involves the decision by those courts on matters about which in given cases there will be acute (shall I say?) doctrinal difference—political differance, if one likes. Each side will think that morally they are wholly justified and each side will have a very strong view about the conduct of the other side, and frequently that view will be based upon what I can best describe as political or ideological concepts.

It has always been a policy of our legislation to try to relieve judges of having to give decisions so far as possible on matters of that kind—on matters of public policy in the broad sense. Obviously, it is not possible to relieve them altogether. Every now and then a learned judge has to make up his mind and pronounce upon a question—whether, for example, a publication constitutes seditious conspiracy or not. He must do it. Judges who are members of the British Judiciary are so extremely highly thought of that the public has every confidence in their decisions as being absolutely impartial. A learned judge is called upon to do what is extremely difficult: to put entirely out of his consideration his own political feelings, his own views about matters of controversy. Of course, judges have such views; they would not be intelligent, conscientious citizens if they had not. But they are trusted to put those matters out of account. They succeed and there is every confidence on the part of the public that there will be a completely impartial decision on matters of that kind.

The question of principle I want to put is this. Is it wise, as a matter of policy, when one is here asking the courts to undertake decisions over and over again which are well within the area of acute controversy of the type I have described, to vest in them a discretionary jurisdiction? is one not putting them rather unnecessarily at risk from time to time of having their motives and decisions misunderstood? When we ask the courts to decide upon, for example, a defamatory publication, which may equally involve that kind of consideration; or when we ask them, in the rare cases in which we do, to decide upon a matter of public policy—and lawyers are very much averse to putting that sort of burden on them—it has always been, I should have thought, the policy of the Legislature to make it extremely concise and clear precisely what the question is that they have to decide and to limit so far as possible the ambit of discretion. They have posed by the Statute or the Common Law decision a precise question. Where they are deciding whether a publication could constitute criminal, seditious libel, they can look at definitions of what seditious libel amounts to, and can ask themselves precisely the question: Does this publication come within the scope of that definition or does it not? And they can use that definition, a precise definition—in so far as precision is possible in a matter of that kind—in summing up to a jury which has to try such a case.

The point of principle that I would put to the Government and to the Committee for consideration is this. Ought one not in this not violently dissimilar context to try to follow that general principle? If the answer to that question is, " Yes ", is one not rather departing from that principle when one vests in them this discretionary jurisdiction—a jurisdiction which requires that they shall, in the first place, ask whether the complaint is well-founded? I suppose, broadly speaking, in answering that question they would ask on which side of the line of probability does any particular issue affected have to be decided; but they then have to go on and ask themselves whether they consider it would be just and equitable to grant certain remedies. That is leaving the matter, I should have thought, so very much as a matter of their own judgment. their own personal discretion. I would submit to the Committee that it may from time to time involve them in the risk —I hope I do not repeat myself—of having their decisions misconstrued and misunderstood.

It would be, I am quite sure every member of the Committee would agree with me at once, a first-class tragedy if any legislation we pass had the effect over the years of impairing in the least bit the absolutely unqualified confidence that the courts have in our judges. If ever that should happen to any material extent, we can say " Goodbye " to our democracy. That is the point I want to put, and I hinge it upon this particular Amendment. I should he very grateful if the Government would he so kind as to indicate their feelings on it.

3.26 p.m.


Again. it would probably be convenient, whatever course the debate may subsequently take, if I responded at once to the speech of of the noble Lord, Lord Stow Hill, who has put a point which I am grateful to him for putting, although I had not been aware it was coming in at this stage, because it gives me an opportunity of saying something which I particularly wanted to say during the course of the discussions at some time which I think needs saying and which I have not had the opportunity to say at any stage until now. May I first of all, with great respect, point out that I think the noble Lord has misconstrued the actual clause which he is seeking to amend. The words " well-founded ", as I shall try to show, are designed to cover exactly what he has in mind, and I think they do, and more aptly than his Amendment does.

The noble Lord's Amendment quite properly seeks to put the burden on the plaintiff, or the complainant, to the extent necessary to discharge the ordinary burden of proof which has to be discharged in civil as distinct from criminal proceedings. This is where the burden rests if the clause is not amended. It is for the complainant to prove his case, not beyond the possibility of reasonable doubt as in criminal proceedings. but on the balance of probabilities. There are only two standards of proof known to law, although the second is partly a matter of degree. One is the civil burden and the other is the criminal burden. There is no doubt that the civil burden applies here. So to that extent the Amendment is unnecessary.

The words " well-founded " are chosen by the Government and by the draftsman in preference to words comparable to those proposed by the noble Lord, because " well-founded " covers both questions of law and questions of fact. The words proposed to be inserted by the noble Lord would exclude questions of law and are appropriate only to questions of fact. But the words " well-founded " which we have selected are designed to do exactly what he is asking. At that stage of the discussion the court has no discretion at all, so far as I can see. It can develop a case law, whether that is a good thing or a bad thing, but it has no discretion. It must look at the facts and say, " Are the facts alleged against the respondent proved on the civil burden of proof? " and it must look at the law by construing the Statute and saying, " Applying those legal principles to the facts I have found, what is the legal result of it? ". There is no discretion there at all. It then goes on to look at a totally separate question. It says to itself, " Assuming that I find the facts proved, and assuming that I find the legal principles applicable to the facts, quite independent of that has the complainant established his right to an equitable remedy? ". That is not part of the same process. If the clause is carefully read. it will be seen beyond a peradventure that it is a separate process which can arise only if and when the complaint is found to be well-founded, and it is for that reason that I suggested respectfully that the noble Lord had perhaps misread the clause a little.

Of course, this does not answer the question of principle which the noble Lord has raised, and it was because he raised that question that I was grateful to him for giving me the opportunity of saying something which I have wanted to say almost from the commencement of these debates and which I have not yet had the opportunity of saying. I went through this Bill with my staff, in one of its earlier stages, before it ever reached Parliament, and indeed before it was ever printed, with a tooth-comb. I did so with precisely the point in mind which the noble Lord has raised; namely, to prevent judges who are appointed as judges being brought into more controversy than was legitimate. The question I asked myself from the start was whether there was a justiciable issue which they can be asked to decide as impartial, a-political people. Of course no one is infallible and I have never pretended to be infallible, but I have satisfied myself that as far as human ingenuity could do it. I have done it, and I should like to mention one or two points in order that the Committee may know what was in my mind. It is not something which arises in my mind on Clause 97; it has been in my mind from the very beginning of the drafting of this Bill to the very end of it.

In the first place, I tried to ask, in relation to each clause where the words " National Industrial Relations Court " appeared, whether there was a justiciable issue which the Court could be asked to decide, and in each case where questions of fact were involved I asked myself, " Are these questions of fact which can be decided on evidence—an affidavit on one side and an affidavit on the other, or with evidence on one side and with evidence on the other? ". In each case I satisfied myself that this was so, and that so far as questions were disputable questions of fact it was evidence and not opinion which would prevail.

Secondly, where questions of policy or doctrine are involved I also satisfied myself—and it would be boastful and improper for me to disclose points on which I had tried to secure that this was so—that the Court was not involved. That is to say, that at the level of the code the Court had no part in the formulation of the code, and at the level of the Secretary of State the Court had no part in deciding the duty of the Secretary of State; and wherever in the course of proceedings a question of doctrine or appropriateness of industrial relations qua industrial relations was involved I tried to see that the thing was referred to the Commission on Industrial Relations and was not left to the opinion of the court. I did so precisely because I was eager to preserve the integrity and impartiality of the Judiciary, which is one of the closest interests which a Lord Chancellor must have in discharging the duties of his office.

But at the end of the day, when somebody comes to the Court and asks for a remedy, after his legal entitlement has been established, after the stage has been reached and passed at which all the legal criteria have been discharged and all the questions of policy have been resolved by the appropriate body—by the Secretary of State, by Parliament or by the Commission on Industrial Relations—-it seemed then to be right, and it seems to me to be right now, that at the end of the day a court should be able to say to a successful complainant, " No, you have not behaved well enough to get what is basically an equitable settlement. He who seeks equity must do equity; he who seeks equity must come with clean hands "—and that applies to employers, it applies to unions; and where the Secretary of State has the right of initiation it applies to him —but I do not think that that interferes with the impartiality of the Court. This is something they have to do wherever an equitable remedy is involved, and I do not think that by giving them this flexible power I have done more than apply principles of justice which are applied in the ordinary courts of the land right from the bottom to the top, and I should be very sorry to see that degree of flexibility taken out of the Bill.


I simply rise to thank the noble and learned Lord for his speech. It was a most important speech, and I am grateful to him for it. I should like to study it most carefully. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD DRUMALBYN moved Amendment No. 265: Page 73, line 43, leave out subsection (4).

The noble Lord said: This is little more than a drafting Amendment. This subsection deals with remedies against an employer who refuses to obey an order of the Industrial Court about recognition of a trade union. This subsection has been superseded by subsection (5) of Clause 101. Clause 101 was added to the Bill in another place. It draws together a number of special complaints, including the sort of complaint comprised in this subsection. I beg to move.

On Question, Amendment agreed to.

LORD DIAMOND had given Notice of an Amendment, No. 265B: Page 74, line 14, leave out ("affect") and insert ("permit").

The noble Lord said: I am speaking on this Amendment merely to give me the status for saying that it was put down before the many debates we have had to-day, and in view of the many and important speeches which the noble and learned Lord the Lord Chancellor has made 1 think it would be right to read those speeches very carefully indeed and to consider whether some of these points need be pressed further and, if so, to come back to them at the Report stage.

It has been very helpful to have the matter clarified. Of course, the Government have not given us the major principle that we want, but we understand that. However, within the major principles of the Government the noble and learned Lord has attempted to make clear many matters that were in some considerable doubt. Having said that, I do not propose to move this Amendment.

LORD STOW HILL had given Notice of an Amendment, No. 265D:

Page 74, line 17, at end insert— ("() An official of a trade union or an independent organisation of workers shall be I deemed to have acted within the scope of his authority if his actions are subsequently ratified by the respective trade union or independent organisation of workers.")

The noble Lord said: The whole principle of this Amendment has already been discussed and the Committee has pronounced upon it. The only reason why I take even a moment of the time of the Committee to advert to it is to say that we think this is a matter of considerable importance. I submit to the Committee that if the principle of the Amendment is not accepted, it means that a person in the position of a shop steward will of necessity be inclined to act with timidity and a lack of decision, with the consequence that instead of a greater degree of order being introduced into industrial relationships, hesitations and vacillations will be brought in and the reverse consequence will ensue. That is the principle which underlies the Amendment. But the Committee has already pronounced on that principle on a previous occasion and therefore it would not assist the Committee to repeat the arguments.

LORD GARDINER had given Notice of Amendment No. 265E:

Page 74, line 17, at end insert— (" () It shall be a defence to any proceedings under this section that the matters complained of took place in circumstances in which, had the proceedings been in tort, there would have been available the defence of justification.")

The noble and learned Lord said: Before asking leave not to move this Amendment, may I say that it raises the same point as No. 264. I shall carefully reconsider what the noble and learned Lord the Lord Chancellor said on No. 264, and, of course, what the noble and learned Lord, Lord Donovan said. While the noble and learned Lord the Lord Chancellor is considering that, I hope he will give further thought to a point I made earlier; namely, whether inducing a breach of contract ought not to be preceded by the word " knowingly ". You can in fact induce a man to do something which does induce breach of contract with a third party even though the inducer did not know at the time that the contract existed. That is why it has always been defined as " knowingly " inducing a breach of contract. Perhaps the noble and learned Lord would be good enough to look at Thomson v. Deakin which reached the Court of Appeal in 1952, in which it was a relevant fact that Arthur Deakin, then General Secretary of the Transport and General Workers' Union, did not know of the contract which existed between Thomson, the plaintiff, who was a non-union printer, and Bowaters. I feel that if the word " knowingly " were not there, a judge would assume that Parliament had done it deliberately, and that, whereas everyone else has to prove knowledge, a trade unionist does not.

Clause 97, as amended, agreed to.

Clause 98 agreed to.

Clause 99 [Complaint by registrar to Industrial Court in consequence of application under s. 79]:

On Question, Whether Clause 99 shall stand part of the Bill?


I do not want to take time on this clause, but it is the clause which deals with claims before the Industrial Tribunals at the instigation of the Registrar, so this is perhaps the appropriate place to raise this question with the Government. There is a really highly complex system introduced by this Bill, when one looks at it from the point of view of the worker who seeks to enforce a right which is given to him either by Clause 5 or by Clause 20, or by some other clauses. He can make a claim under Clause 133 to an industrial tribunal; he can make a complaint to the Registrar and the Registrar can bring that complaint before the Industrial Court. If the Government do not exercise their powers under Clause 108, the worker can make a claim before the county court. If the Government do not exercise their powers under Clause 107, he can make a claim before the Industrial Relations Court. I think I have only to point to the various alternatives open to him to bring to light that the unfortunate man is really put in a position of very great anxiety when he is making up his mind which course to pursue. I was wondering whether between now and the Report stage the Government could do something at any rate to simplify the choices before him, in order that this highly elaborate and difficult procedure can be made smoother from the point of view of the individual applicant who wishes to assert a right.


I think we ought to study with some care what the noble Lord has said, and do as he suggested; that is, make a further statement on Report stage if it seems that further action is needed. I should like our advisers to look at the speech the noble Lord has made.


I am most grateful.

Clause 99 agreed to.

Clause 100 agreed to.

Clause 101 [Special provisions as to certain complaints to Industrial Court]:

3.45 p.m.

LORD DRUMALBYN moved Amendment No. 267A:

Page 77, line 22, at end insert— (" () On a complaint under section 97 of this Act that action specified in the complaint constituted an unfair industrial practice under section 34(1) of this Act, where the complaint relates to a collective agreement which—

  1. (a) was made before the date as from which section 4 of the Trade Union Act 1871 (which restricts enforcement of certain contracts) is repealed by this Act, and
  2. (b) was a collective agreement made by or on behalf of parties which were or included one or more organisations of workers and one or more organisations of employers,
the only remedy available to the Industrial Court shall be that specified in section 97(3)(a) of this Act.")

The noble Lord said: The general effect of this Amendment is to ensure that Clause 34(1)—which deals with unfair industrial practices, making it an unfair industrial practice to break a legally enforceable agreement—shall not apply retrospectively to alter the present legal status of certain collective agreements reached before Clause 159 and Schedule 9 of this Bill repeal the Trade Union Act 1871. The Government have consistently said that nothing in the Bill should alter the law in relation to existing collective agreements. If such agreements were intended by the parties not to be legally enforceable they will not be legally enforceable under this Bill; if they were, they will still be legally enforceable. Complaints consisting of breach of an existing enforceable agreement would after enactment be heard by the Industrial Court. So would any breach of a written agreement made after the commencement of the Act which did not contain any disclaimer provision.

As a result of both correspondence and debate in another place, it was brought to our attention that a rather special problem arises in relation to agreements between an employers' association and a trade union which cannot at present be directly enforceable because of Section 4 (4) of the Trade Union Act 1871. It follows that if such an existing agreement could be shown to have been intended by the parties to be legally binding, that agreement should not be directly enforceable after this Bill comes into force any more than it was before the Bill comes into force. These Amendments are designed to guard against the risk that they might be held to be directly enforceable after the repeal of Section 4(4) of the 1871 Act. Under the present law, Section 4(4) of the 1871 Act precludes direct enforcement of an agreement, but either party may apply to the courts for a declaration of rights. We provide by this Amendment that the parties to such an agreement will still he able, as they were before, to complain and apply for a declaration of rights, but that no other remedy shall be granted by the Industrial Court. This is consistent with our intentions that the Bill should not operate retrospectively to change the present status of any existing legal agreement. We are grateful to those who pointed out that there could be a loophole here. I beg to move.

On Question, Amendment agreed to.

Clause 101, as amended, agreed to.

Clause 102 [Special provisions as to certain complaints to Industrial Court]:

EARL FERRERS moved Amendment No. 268: Page 77, line 40, leave out ("unfair").

The noble Earl said: Perhaps we may take Amendments Nos. 268, 269, 270 and 275 together. Under Clause 5 it is an unfair industrial practice for an employer to dismiss a worker because he exercised his rights under that clause in regard to trade union membership or nonmembership, or for taking part in trade union activities. Under Clause 20 it is an unfair industrial practice for an employer to dismiss an employee unfairly. In both cases the worker is able to complain to the industrial tribunal under Clause 102, and the effect of the word " unfair ", which this Amendment seeks to delete, and which immediately precedes the word " dismissal " in these clauses, would be to prevent the remedy of re-engagement, which applies in unfair dismissal claims, from being applied where an employee has complained that he has been dismissed for exercising his rights under Clause 5. The Amendments are what one might describe as technical Amendments, and the removal of the word " unfair " in these clauses will allow both unfair dismissal and dismissal under Clause 5 to be remedied under subsection (4) of this clause, which will permit the industrial tribunal to recommend re-engagement. For these reasons. I hope your Lordships will agree to the Amendment.

On Question, Amendment agreed to.

EARL FERRERS: I beg to move Amendment No. 269.

Amendment moved— Page 78, line 11, leave out ("unfair").—(Earl Ferrers.)


The only reason I intervene for one moment is to ask for confirmation. When the noble Earl asks to deal with a number of Amendments together, quite sensibly and properly, one does not have all of them in mind at the same time. I only ask whether what he said on the first Amendment applied to all of these; namely, that the effect of leaving out " unfair " is to widen the gate through which one goes to seek relief?


That is entirely correct. The remarks that I made apply to all of these four Amendments.

On Question, Amendment agreed to.

3.52 p.m.

LORD STOW HILL moved Amendment No. 269B: Page 78, line 16, leave out (" re-engaged ") and insert (" reinstated ").

The noble Lord said: This Amendment raises a question which has previously been considered, but which I think requires some further consideration before we pass on. It would seek to insert in line 16 after the words, " to be re-engaged " the words, "or re-instated ". Clause 102 is the general clause which deals with workers who wish to complain that they have been unfairly dismissed under Clause 20 of the Bill. At the moment, the jurisdiction which on such a complaint is vested in the industrial tribunal, includes jurisdiction to make a recommendation that the dismissed worker should be re-engaged by the employer, or by a successor of the employer. There are other provisions which, in effect, say that if the employer. for no adequate reason, does not comply with that recommendation and re-engage the worker, then the compensation which the worker may be awarded is correspondingly increased.

The submission which I make to the Committee is that if the only word used is re- engaged ", and if the recommendation is a recommendation only that the worker be re-engaged, he is not given the degree of security to which he should be rightfully entitled. You may re-engage in various capacities a person whom you have dismissed. Status is a very uncertain thing, but to the individual about whom the word " status " is used, it is something of the utmost importance. It is a situation to which he may have climbed after years of work which he has given, and through which he hoped that he had obtained esteem and confidence both from his fellow workers and his employers. You may re-engage him on terms which, to an outsider, may seem perfectly reasonable, to do some quite different work; work which involves considerable hurt to his pride and dignity. and in fact involves that he is employed in a status which is inferior, both from the point of view of the duties he is called upon to perform, and in terms of the esteem and respect which the performance of those duties carries with it.

What is sought by the Amendment is to enable the industrial tribunal to go rather further in its recommendations than saying simply that he ought to be re-engaged on reasonable terms. The recommendation should he capable of being that he should be given back his previous position, in a broad sense, and everything that goes with it. He should be put back in that precise situation, with all that goes with it, with all its advantages, which perhaps have been earned over the years as appropriate to the position in which he was before. After all, you are dealing with a situation in which the assumed circumstances he has established to the satisfaction of the industrial Tribunal are that he has been unfairly dismissed; and it is in order that he should be given proper recompense for that wrong which is defined in this Bill, and with which he has been visited, that the recommendation should be capable of dealing.

I do not want to repeat myself, but I submit that to be re-engaged, even if it is coupled. with the words, " on reasonable terms ", is not going far enough; the industrial tribunal should be able to say that the man ought to be put hack where he was before, with all that goes with it. When the question arises, in the event of the employer failing to comply with a recommendation, as to what should be the appropriate sum, to be awarded to him by way of compensation, it ought to he possible for the industrial tribunal to take into account, in amplifying that compensation, the fact that he has not been put back, in accordance with their recommendation, where he was before. I put that before the Committee as being at least the requirement of justice in this case. On both sides of the Committee we want to do justice to the man who has been wronged, and I submit that the minimum that should be capable of being awarded to him is reinstatement in the position from which he was unfairly dismissed.

3.58 p.m.


I should like to confirm that in my experience, which I am not claiming is necessarily very wide, the words " re-engage " and " reinstate " are used in the way my noble friend has drawn attention to in his speech on this Amendment. Therefore I support the Amendment. I have drawn attention to this matter at an earlier stage in our discussion of Amendments on this Bill. The whole question of whether to use the word " re-engage " or " reinstate " arises fundamentally because those who drafted this Bill have not sought to discriminate between two acts which can be quite different. One act is to dismiss a person from the company which employs him; the other act is to remove him from the role within the company with the object, or the effect, of transferring him to some other role in the company. It is unfortunate that the English language does not have a word for the second act.

The normal connotation of the word " dismissal " is dismissal from employment of the organisation which previously employed a person. It has been suggested that as the process of putting him into a particular role is to appoint him, the reversal of the procedure should be to dis-appoint him, which is no doubt, emotionally, a fair rendering, but it is not a word that could be used. Some companies have been forced to the use of the word " deselect " for the limited process of removing somebody from one role with the object of transferring him to another role, if certain managers are prepared to accept him. So that there are these two acts, and the words " reengage " and " reinstate " have a reference to these two propositions. " Reinstate " means, in common parlance, taking back into employment with the firm which previously employed a person, but not necessarily reinstating him. This is the burden of my noble friend's Amendment.


I wonder whether I may mention one or two points on Amendments Nos. 269B, 269C. 269D and 269E. I feel that you cannot force any employer to take back an employee who has been dismissed. That is just about impossible. But an employee has other compensations under this Bill. The tribunal can recommend that he be re-engaged, but to emphasise the difference between re-engaging somebody and reinstating him I should like to give an example of something that happened in a factory in Scotland. A person was a departmental manager in a department which was expanding very rapidly. The job became too much for him, he could not cope with it and he had a nervous breakdown. If it had not been for that, he was reaching the stage where he could have been dismissed for incompetence. I am glad to say that, through the intervention of some of his workmates in similar positions, he was able to be re-engaged, after he had recovered from his nervous breakdown approximately six months later, in the position of an inspector. The position had lower pay, but it was one in which he was thoroughly happy, so he was able to complete his service with the company and eventually to retire at the age of 65.

There are many cases in industry where a person could be re-engaged in some position which would suit him quite well but where it would be totally impracticable to reinstate him in the position in which he was incompetent. Cases of that sort occur when there is rapidly expanding development in industry. Therefore, I feel that the drafting of Clause 102 is as fair and generous as it can be, and there is not a single word in it which I should like to have altered.

4.4 p.m.


I have listened with some sympathy to what has been said by all three noble Lords who have spoken on this Amendment, and there is very little between them and the Government on this point. As the noble Lord, Lord Brown, said quite correctly, we are talking about a choice of words and the meaning that is given to them. I can say quite definitely that the Government recognise that the ideal remedy in a case of unfair dismissal is for the employee to be reinstated in his old job, just as though he had never been dismissed, but that is an ideal and we have to accept that there may be circumstances in which that is not practicable. In the interval between the dismissal and the tribunal hearing, for example, there may well have been changes in the employer's circumstances or in the organisation of the undertaking. For instance, there may have been a reorganisation of departments or a change in shift systems which would render it difficult, and in some circumstances impossible, to reinstate the employee in exactly the job he had before. We feel, that to require the tribunal to consider only reinstatement would therefore be unduly restrictive. I was not quite sure, when the noble Lord, Lord Stow Hill, moved the Amendment, whether he did so in the terms of what is on the Marshalled List. I thought he said that he was proposing to add to the words " to be re-engaged " the words " or reinstated ". Perhaps he would like to elucidate.


I am sorry; I should have explained. Certainly, it was my intention to add to the word " re-engaged " the words or reinstated ".


That would make a difference, but it is not what is on the Marshalled List. What is on the Marshalled List is to remove the word " re-engaged " and to substitute for it the word " reinstated ". But in providing for a recommendation of re-engagement, the clause allows the tribunal flexibility to meet the sort of circumstances that I have described. For example, if an employer, for perfectly good reasons, is not able to offer an employee his old job back but is able to offer him an alternative job on the premises—and I stress this—which the tribunal considers compares favourably with the original job, then the tribunal will be able to recommend accordingly. Without this flexibility, the tribunal might have to turn to the alternative remedy, which is that of compensation, and that is not justified where an adequate offer of alternative employment on terms similar to the original employment is available.

Similar considerations apply where engagement by a successor of the employer or an associated employer is concerned. We must take into account the circumstances in which a change of ownership of the business occurs after the employee's dismissal, which brings with it changes in the organisation which preclude exactly the same job being offered back to the employee. Then, again. if changes had occurred which prevented the original employer from offering an employee his old job, the employer might well be able to offer him appropriate alternative employment with an associated employer; that is, one of the same group. In all these cases, I would stress that it is crucial that the tribunal would have to satisfy itself that the employment offered was suitable to the employee, and it would be able to take into account such matters as seniority and the question of back pay for the period between dismissal and re-engagement. We must not lose sight of the fact that this provision will operate to the benefit of the employee.

There are cases where dismissed employees would prefer to avail themselves of an offer of suitable alternative employment approved by the tribunal rather than receive compensation and face, perhaps, a period of unemployment. Again there will undoubtedly be cases where the employee, for whatever reason, would prefer not to have the same job back, perhaps because the circumstances leading up to his dismissal involved a clash of personality and he would find such a return difficult. In such a case, alternative employment in another department might well offer a better solution for him. I hope I have said enough—I do not think there is an enormous amount between us, as I said, on this Amendment—to show that we think that the word " re-engagement " really embraces within it " reinstatement ", that it will operate more to the advantage of the employee and that it is the better term to use in this part of the Bill.


I hope that before the next stage of the Bill the Government will reconsider this clause. Reinstatement is different from re-engagement. Everybody agrees that there will be cases in which reinstatement will not be practicable. or in which the man himself may not want it; but there are cases in which it is the only way that a man's reputation can be restored or justice can be done. Re-engagement is a different matter. Reinstatement makes it plain that he has done nothing wrong. In the old days of the National Arbitration Tribunal one could do this, and simply ask for reinstatement. I remember a mayor—I regret to say a Labour mayor —who was very much in charge of the caucus and a lot of jobs in the town hall, and who told the town clerk to requisition a house because lie wanted it for the local Labour Party. The town clerk very rightly said that that was not a sufficient legal ground for requisitioning the property, and he replied, " If you don't, you won't be town clerk for long ", and within three months he had been dismissed. Under the then legislation one could go and ask for reinstatement before the National Arbitration Tribunal. It was bitterly fought for two or three days, and the National Arbitration Tribunal found that there were no good grounds for dismissing the town clerk at all, and his reinstatement was ordered. Years after that I ran into him at a dinner and he was still town clerk of the place.

There is a further point which, with great respect, I do not think the Minister covered, and that is that there are many pension schemes where the amount of the pension depends entirely on the number of years continuous service, and if there is a break and re-engagement a man may go back to square one so far as his pension is concerned. I should have thought, therefore, that what is wanted is the words " re-engagement or reinstatement ". If you had both, that would meet the point made by the noble Earl, Lord Balfour, and would allow the tribunal to do what was right in all the circumstances of the case.


May I add this to what my noble and learned friend has said? There is no dispute about intention here, so far as I can see, but the noble Lord has talked about re-engagement, about reinstatement on original terms and about reinstatement in an equivalent role. There are three conceptions, and they ought to find mention in the Bill. I wonder whether it would not be possible—this is a suggestion to which I do not want a reply at the moment—to define, in the clause which gives all the definitions, reinstatement as being " restoration to the original role or an equivalent ". If it was so defined, then the difficulty which the noble Lord. Lord Windlesham, has referred to would be removed, I certainly should be satisfied and I suspect my noble friend would also be satisfied.


We hoped that what the noble Lord, Lord Brown, has said is exactly how the clause would work in practice. The difficulty about the cases raised by the noble and learned Lord. Lord Gardiner, is that he is arguing about circumstances where reinstatement would clearly be appropriate. A town clerk's job is that of chief officer of a local authority. There is only one town clerk, and either that man is put back in that role or he is not. I would agree with the noble and learned Lord entirely that that is the appropriate remedy. The difficulty that I see as to the word " reinstatement " being substituted for " re-engagement " is in the case that I mentioned, where there has been a clash of personality and where it is not appropriate for the individual to return—he may not wish to return to an environment in which he found it impossible to get on.

Take a very small but indicative case, a station bookstall with, perhaps, two or three employees, one of whom cannot get on with the other two. The employer wrongly dismisses him. He says, " We cannot have this. He is constantly quarrelling and it is bad for my business." The man goes; he then manages to secure—


I am sorry to interrupt the noble Lord, but does he realise that when he says that the employer dismisses the man wrongly he is giving exactly the case the noble and learned Lord described earlier?


The noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Gardiner. know the Bill well enough. We have been through the process of the Bill; there is found to be a case of unfair dismissal and we arrive at the point where this is to be remedied. Here we are talking about whether the man should he reinstated in that job. It would be absurd to say that he must go back to that particular stall. but it would be reasonable to say that he must be re-engaged in a similar job. Another job is that studies on reinstatement—a good deal of them in the U.S.A. in the M.I.T.—have shown that reinstatement is not in practice effective or practicable where the parties are unwilling to agree. It is very difficult to enforce where they will carry on disagreeing. You just perpetuate the situation which led to disagreement in the first place. What I am being asked to do in the light of the intervention by the noble and learned Lord, Lord Gardiner. and the very significant fact that Lord Stow Hill moved an Amendment not on the Marshalled List—and I replied to what is on the List, to delete the word " re-engage " and insert " reinstate " in the same position—is to think again whether some longer phrase. possibly both words or an elaboration of one or another, will meet the circumstances we are discussing. I agree.


What is to happen to the man's pay lost in the period between dismissal and re-engagement by the same employer or possibly by a different employer? I do not see in those words any suggestion for an order being made for the man's loss of pay in the interim period. He would not get it under subsection (5). I do not think there is any power there. I do not see that it will have the power in a recommendation stating the terms on which it considers that it would be reasonable for the complainant to be so re-engaged or engaged ". Those, I should have thought, are the terms on which he is to serve in his new employment. I should not have thought that that wording was sufficiently wide to cover the award of back pay. Could that also be considered?


Would the noble Lord consider placing more faith in the industrial tribunal? That seems have the power to consider complaints and to decide what to do. If we have faith in that, then the question of words would not matter very much.


That is a true observation. Here we are considering a choice of words. Often in Parliament we occupy ourselves with semantics; but it is what people do and the meanings they give to the words that really controls activities in a workplace and elsewhere. In respect to the intervention by the noble and learned Lord. Lord Pearson, I am advised that the tribunal or the court would be able to take into account such matters as seniority and the question of back pay for the period between dismissal and re-engagement. In the course of having another look at this I will look in more detail at the powers under which they could take this action.


When the noble Lord is looking at this again, I wonder whether he will look at this point. In 1926 I went on strike. I had to apply for re-engagement at the end of that because the companies said: " We will not have you back on the trade union's say-so. You must make a personal application ". As a result of this application I was re-engaged. I was not reinstated, in so far as all my seniority had been lost to me. My rights to the small pension that was available under the Railway Fund were lost to me. A great deal of negotiation had to take place before eventually those who applied for re-engagement in the circumstances of that strike were reinstated completely so far as seniority was concerned, and also as to pension rights and so on. Here, it seems to me, is the real distinction between re-engagement and re-instatement. Regarding the other point, I completely accept that it is not always possible to reinstate in exactly the same job where there has been a clash of personality. In the further consideration that the noble Lord is to give to this, I ask him to look at the point that I have made in the hope that something may be done about the circumstances I have mentioned.

Amendment, by leave, withdrawn.


I beg to move Amendment No. 270, which is of the same nature as the previous Amendments.

Amendment moved— Page 78, line 30, leave out (" unfair").—(Earl Ferrers.)

On Question, Amendment agreed to.

Clause 102, as amended, agreed to.

On Question, Whether Clause 103 shall stand part of the Bill?

4.33 p.m.


I hope your Lordships will not think I am trying to ask a silly trick question. It is one which affords the easiest possible answer. Clause 103(5) defines " person " as not including " a body of persons, whether corporate or unincorporate ". I would have thought that the same limitation was necessary in Clause 102, but it does not seem to me to be there. I do not know why it should be necessary in one and not in the other. I am simply asking the Government to look at it between now and Report to see if some slip has been made.


The short answer to the noble and learned Lord's question is that if he looks at the marginal notes he will see that Clause 102 is concerned with rights under Clause 5 and Clause 20. Clause 5 concerns the right to belong to a trade union or not to belong to a trade union; Section 20 concerns unfair dismissal. Neither is appropriate to a corporate or unincorporate body.


Does that not apply equally to Clause 103? Nothing in Clause 103 could be appropriate to a corporation. I do not want to take time on this, but perhaps the Government would look at it to see whether there has been a slip.


The Government will look at it but I think the answer is, no.

Clause 103 agreed to.

Clauses 104 to 106 agreed to.

Clause 107 [Transfer of cases between industrial tribunals and Industrial Court]:

4.39 p.m.

LORD STOW HILL moved Amendment No. 270A: Page 81, line 32, leave out from (" shall ") to end of line 46 and insert (" determine the complaint.").

The noble Lord said: I should like to ask what the Government's thinking is on Clause 107. I imagine that it is contemplated that there will be cases which involve Clause 5 and Clause 20 which are in fact not easy to decide; that there is considerable complexity for one reason or another and that it is contemplated that the Industrial Court may, in a situation of that sort, direct that the case shall come before it from the industrial tribunal. I do not know whether it refers only to a particular ease or to a category of cases, and I should be grateful if the Government would indicate their thinking on that.


I think that the noble Lord, Lord Stow Hill, has got it just right. There will be test cases which govern the result of whole classes, and there will be cases of undue complexity; in which case a transfer will be possible. In each case an individual order for transfer will have to be made. I do not think an all-embracing order for transfer can be made under the terms of the Bill. But obviously one case, or a series of cases, can be transferred, which raise the same point.


I am much obliged to the noble and learned Lord. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 107 agreed to.

Clause 108 [Power to confer jurisdiction on industrial tribunals in respect of damages for breach of contract of employment]:

4.26 p.m.

LORD BEAUMONT OF WHITLEY moved Amendment No. 271:

Page 82, line 45, at end insert— (" Provided that no order modifying any enactment shall be made unless a draft of the order has been laid before, and approved by a resolution of, each House of Parliament.")

The noble Lord said: Perhaps it would be convenient if we discussed this Amendment together with the following Amendment No. 272. This Amendment takes up again another point made by the noble and learned Lord, Lord Donovan during his Second Reading speech when he said: Clauses 108 and 145 give the Minister power, among other things, to alter an existing Act of Parliament without laying a Statutory Instrument before both Houses for Affirmative approval. I hope that omission can be remedied."—[OFFICIAL RFPORT, 5/4/71; col. 43.] We thought this was a point which ought to be put before the Committee. I have had help from expert lawyers on this matter, but obviously I do not command the same wealth of legal expertise as is behind the next Amendment in the names of the noble and learned Lord, Lord Donovan, Lord Taylor of Mansfield and the noble and learned Viscount, Lord Dilhorne. I imagine their Amendment is probably the better drafted and the more acceptable; but in order that we may discover which is the better of the two, I beg leave to move this Amendment.


It might be for the convenience of the Committee if I said that although I accept this Amendment in principle I shall accept Amendment No. 272—and may I say also Amendment No. 273—in preference to it. In practice, they are both aimed at the same object, but we prefer No. 272 to No. 271.


I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


In view of what the noble and learned Lord the Lord Chancellor has just said I beg leave to move Amendment No. 272.

Amendment moved—

Page 83, line 12, at end insert— (" (9) No regulations or order shall he made under this section unless a draft of the regulations or order has been laid before Parliament and approved by resolution of each House of Parliament.")—(Lord Donovan.)

On Question, Amendment agreed to.

On Question, Whether Clause 108, as amended, shall stand part of the Bill?

4.30 p.m.


I wish to ask the Government their intentions under subsection (2) of this clause. This is a matter, I think, entirely within the purview of the noble and learned Lord the Lord Chancellor. He is there given power by Statutory Instrument either generally or specifically to direct that claims for damages for breach of contract of employment may go to the industrial tribunal. At the moment, of course, a case of that sort would go to the county court or the High Court, and the ordinary remedies by way of damages would be available to the plaintiff if he succeeded in 'establishing his claim.

The particular reason why I ask this question is this. As we have been recognising during the course of our discussions, the jurisdiction exercisable by the industrial tribunal is not the same as the jurisdiction exercisable by the county court, for reasons that the Lord Chancellor I think knows—I do not want to repeat them—that it has a discretionary aspect. I suppose that the person who complains that his contract has been broken, as matters stand, would have to assert his remedy in accordance with well-recognised rights. If he succeeds he has a right to damages. If one asks how those damages are computed, the answer is that they are computed according to well-recognised legal principles which have been repeatedly laid down.

The Lord Chancellor may direct that instead of going to the county court he can go to the industrial tribunal. I suppose the choice is left to him. He is therefore given the choice of two entirely different jurisdictions, the common law jurisdiction and the new equitable jurisdiction set up by the terms of the Bill. When one looks at subsection (7) one finds that the county court's jurisdiction in this matter, notwithstanding a direction by the Lord Chancellor, remains intact. As I understand it, the county court can still exercise the jurisdiction, but that is subject again to the provisions of Clause 126, which enables in an individual case, but not generally, an action in a county court to be stayed if it has gone to the industrial tribunal, or if it has been brought in the first place before the industrial tribunal.

It seems that that proceeding requires some justification. I submit that it is unnecessarily complex. I should have thought that the person who wishes to complain should know precisely what are his remedies and before what court. I am not suggesting for a moment that the Lord Chancellor would exercise his direction-making power with any unwisdom— I am sure that he would not, but I think it right in the public inter.nt before we pass this clause, that he should give some indication as to the principles on which he will proceed in the exercise of that direction-making power. It is, I suppose, a position of some considerable uncertainty if one starts proceedings in the county court and then learns that one may have them stayed; or, equally, if one can go to the Industrial Court one has little to complain about. That may he the general thinking, but I should be grateful if the noble and learned Lord the Lord Chancellor would give some indication as to his intentions in this regard.

4.34 p.m.


I am glad to be able to answer the question put by the noble Lord, Lord Stow Hill. The object of this provision is to prevent duplication of proceedings primarily concerned with unfair dismissal. It does not apply to personal injuries cases in which the ordinary courts have exclusive jurisdiction. The point is a simple one; it is a question of nuts and bolts. Ideally from my point of view all this jurisdiction would have been more conveniently placed in ordinary courts. The interest of the Lord Chancellor's Department is in favour of a simplification of types of tribunal to which one may go rather than a multiplication of them. For reasons which I need no tenter into now, it has been thought advisable to get up a separate chain of courts under this measure. We can go into that at some time, but those reasons do not matter for the purpose of this answer.

That being so, one gets a case of an employee who has been dismissed by his employer. Under the existing law, and forgetting about this Bill for the moment, if he has been given no notice he has a right which, rather over-simplified, consists of getting the amount of wages which he would have got, subject to certain complications. That is called wrongful dismissal. For that Ile goes to a county court. He gets rather more, if he is entitled to it, for unfair dismissal. The rules of law applying are not quite the same. The employer can say, of course, when the man claim, damages for wrongful dismissal in the county court, " You misbehaved yourself so badly that I was entitled to dismiss you without notice. You were dead drunk and in your expiring moments you struck me on the nose. So I told you to take your cards." That is an example of where the employer would get away clean in such a case, but in many cases of alleged misconduct the courts do not hold that the misconduct is such as to justify instant dismissal without notice, so the employee may well want to plead in the alternative; that he was wrongfully dismissed, or alternatively, if the dismissal was not wrongful under the common law, that it was at least unfair under the Industrial Relations Act. Therefore one cannot use the justification advanced in that class of proceedings.

Vice versa, a man may think that he will get more in damages for unfair dismissal (because up to two years wages are awardable under the Bill) than he would get in the county court, where he would be offered a week's wages in lieu of notice. So in fact the two proceedings run parallel with each other. He may want to claim both and, he having claimed both, the court may say, " You cannot have this; you are entitled to that." It can either allow one or both, or dismiss one or both. To prevent a duplication of proceedings we have a provision whereby it is possible to give one of the two alternative kinds of court complete jurisdiction. I hope that the noble Lord, Lord Stow Hill, will find that a not inadequate justification.


I am most grateful. I do not think it inadequate; I think it is very adequate.

Clause 108 agreed to.

Clause 109 [Appeal from industrial tribunal to Industrial Court]:


Again, in view of the intimation by the noble and learned Lord the Lord Chancellor, I merely move Amendment No. 273.

Amendment moved—

Page 84, line 4, at end insert— (" (5) No regulations or order shall be made under tiis section unless a draft of the regulations or order has been laid before Parliament and approved by resolution of each House of Parliament.").—(Lord Donovan.)

On Question, Amendment agreed to.

On Question, Whether Clause 109 shall stand part of the Bill?

4.39 p.m.


May I ask almost the same kind of question as I asked on the previous clause; namely, the intentions of the Government with reference to subsection (2) at page 83? I do not know, but I should imagine that probably the intention is by order to direct that all appeals on law from the industrial tribunals should go to the Industrial Court, as is proposed in the subsection. That is what I imagine; but I should be grateful if the noble and learned Lord the Lord Chancellor would indicate where appeals are to go. Would he be so kind as to say that if he exercises his power the procedure by way of Crown Writ in the Divisional Court would still remain available? I do not know, but I imagine that is the case, I shall be grateful if the noble and learned Lord can give a general statement of his intentions.


The noble Lord, Lord Stow Hill, is justified in being exacting. I think the answer is: Yes, I must exercise my power. There is no question of my not doing so, because a new jurisdiction is being conferred on the industrial tribunals and the appeal should he to the Industrial Court and not to the Court of Appeal. Under the various existing jurisdictions enumerated in Clause 109, in some cases there is an appeal to the ordinary Court of Appeal on points of law and it is our intention that it should be to the Industrial Court.

As regards Crown Writs, I do not think that anything is done to abolish the approach to the Divisional Court of the Queen's Bench Division but, as the noble Lord will remember, it is the court of last resort and wherever there is an ordinary way a Crown Writ would not be granted. To this extent it would reduce the number granted.


I am much obliged.

Clause 109, as amended, agreed to.

Clause 110 [Other appeals to Industrial Court]:

BARONESS TWEEDSMUIR OF BELVELVIE moved Amendment No. 274D. Page 84, line 16, leave out (" or section 70") and insert (" section 70 or section 83 ").

The noble Baroness said: This Amendment provides a right of appeal to the Industrial Court for any organisation which applies to be included on the special register of incorporated organisations and is refused such registration by the Registrar. I beg to move.

On Question. Amendment agreed to.


Page 84, line 16, at end insert— (" (d) against any decision of the registrar, as indicated in a notice served on an organisation under section 73(1) or section 91(1) of this Act, that the rules of the organisation are defective.")

The noble Baroness said: This Amendment will enable trade unions, employers' associations or organisations on the special register to appeal to the Industrial Court against the Registrar's decision that the rules of the organisation or any amendments made to those rules are not in accordance with the requirements of the Bill and need to be changed. I beg to move.

On Question, Amendment agreed to.

4.43 p.m.

LORD BEAUMONT OF WHITLEY moved Amendment No. 274:

Page 84, line 16, at end insert— (" (d) against any refusal by the employer to disclose information of any of the descriptions specified in paragraphs (a) to (e) of section 151(1) of this Act.")

The noble Lord said: Clauses 54 and 55 of the Bill lay down the obligation of employers to disclose information for the purpose of collective bargaining. Clause 151(1) deals with certain classes of information which an employer need not give. The object of this Amendment is to give power to appeal to the Industrial Court against the refusal by an employer to disclose information for one of the reasons in paragraphs (a) to (e). I am aware that this Amendment might be slightly defective in that it should probably suggest that the appeal should be against any refusal by an employer to disclose information on the ground that it is of the description specified in paragraphs (a) to (e), because it is not our intention that there should be grounds for appeal against something which admittedly comes into these categories. I am not trying to discuss Amendment No. 151, but merely trying to give the grounds for appeal against something which an employer can very easily say falls into one of these categories, and to enable this to be challenged. It may be that this already occurs somewhere in the Bill but we have not been able to find it. I beg to move.


I think that we are probably in agreement with the intention of this Amendment, but I would suggest with respect that it is not necessary and perhaps I could explain why. Subsection (1) of Clause 98 allows a trade union to present to the N.I.R.C. a complaint against an employer who has, for whatever reason, refused or failed to disclose information required in collective bargaining. If the complaint is well-founded, the court is empowered to make one of three orders. First, it can make an order determining the respective rights of trade union and employer. Secondly, it can make an order directing, the employer to take certain action in the fulfilment of his duty. Thirdly, it can make an order authorising presentation of a claim to the Industrial Arbitration Board. Therefore, trade union repre- sentatives who dispute that information withheld by the employer in collective bargaining is protected by Clause 151(1) have an appropriate course of action. Perhaps I should further explain that where an employer alleges confidential grounds for withholding certain information from annual statements to employees and those grounds do not accord with the provisions in Clause 151 for the protection of confidential information, a complaint may be made under Clause 106. So I do not think that this Amendment is necessary and I hope that the noble Lord will feel able to withdraw it.


I thank the noble Baroness. I think that covers the question, and I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

LORD STOW HILL moved Amendment No. 274A: Page 84. line 17, leave out subsection (2).

The noble Lord said: This is a probing Amendment. This clause was not discussed in another place and so the object of the provisions in subsection (2) are not known on this side of the House. What the subsection does is to substitute the existing discretionary power of the Registrar to state a case for the opinion of the High Court and place in its stead a duty at the request of either party to state a case for the consideration of the Industrial Court. I can perfectly well understand why, as a matter of principle, the change is made from the High Court to the Industrial Court, because that Court has to deal with the same type of consideration as those with which this Bill deals and for which the Industrial Court is set up.

I am not complaining of.the change, but I think I am right in supposing that what at the moment under the 1964 Act is a discretionary power on request of either party to state or to refuse to state a case is being replaced by an absolute duty, so that the Registrar cannot refuse the request of either party to state a case. If there is any specific reason which has emerged from experience of this jurisdiction, I think that the Committee should know about it, so that the justification for this change is understood. I am not suggesting that there is no justification. On the contrary, I am sure that the question has been given careful thought, but I should be grateful if the noble and learned Lord the Lord Chancellor could indicate what it was that led the Government to decide that this change was necessary. I beg to move.


This is the first time that my attention has been drawn to this, and therefore it may be—


May I interrupt at once to say that it is desirable to give notice of these questions. I do not expect the noble and learned Lord to have the law at his finger ends. May I make a comprehensive apology? The noble and learned Lord knows from his own experience that many questions come up at later stages of a Bill. It is not always practical to give notice, and I apologise to him.


The noble Lord need not apologise. It is my business to know all the points, though I do not always know them. I do not think my attention has been drawn to this particular point, but I do not believe that there is anything more to it than this: ordinarily speaking, a court of lower instance ought never to refuse a bona fide demand to state a case on a point of law. The party who does that normally does it at certain risks regarding costs to himself and he is entitled to take the opinion of a higher court on a point of law. I do not know, without referring to others, how often the power has been refused, but I should doubt whether it has ever reasonably been refused. Therefore, my belief would be—and I will write to the noble Lord if I am wrong—that the only reason for converting a power into a duty is that it is a power which ought to be exercised in every bona fide case.


I am much obliged. I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 110, as amended, agreed to.

Clause 111 [General principles as to assessment of compensation]:

4.52 p.m.

LORD STOW HILL moved Amendment No. 274C: Page 85, line 7, leave out subsection (3)

The noble Lord said: In moving this Amendment, 1 desire to raise a question which may be of some importance as time goes on. The previous subsection has introduced into the computation of compensation under this Bill the well-known Common Law principle that a claimant must take reasonable steps to mitigate his loss. When one goes to subsection (3), one sees a further limitation, which I should have thought was of considerable importance: Where the Industrial Court or industrial tribunal finds that the matters to which the complaint relates were to any extent caused or contributed to by any action of the aggrieved party… then the compensation may be proportionately reduced.

The question of principle to which I call attention and on which I should be grateful to have the views of the Government is how wide in practice the expression, " by any action of the aggrieved party " should go. This subsection is of very general application. It applies both to a claim by a worker under Clauses 6 and 20 and to a claim by a worker under Clause 64; that is to say, in respect of a failure to comply with the general principles which are to be embodied in the rules of the union under Clause 63. It applies to claims under the far-reaching Clauses 92 to 94, and to claims under Clause 34 against parties to collective agreements which have been broken. It is therefore a subsection which is of the widest application, and I should have thought it was essential that when we are giving to the Industrial Court or an industrial tribunal a jurisdiction to reduce compensation which otherwise it would be disposed to award by reference to some action on the part of the aggrieved party which is said to have caused or to have contributed to the matters complained of, we should have a clearer idea in our minds as to what sort of action is comprehended in that phrase.

Any number of situations can be envisaged where it might be said by the respondent against the claimant " You did this, that or the other and, therefore, the compensation should be less than it would otherwise have been." A worker who complains of unfair dismissal or having been refused his rights under Clause 6 could have it said against him by an employer, " It is true that you were unfairly dismissed, but you were a most unpleasant and unpopular figure. I cannot say that you committed any of the actions which entitle me to dismiss you, but you wear your hair much too long and you are a Maoist." We have had earlier references to " the pill " and I will not refer to them now. There are various habits which are disagreeable to others. Could they be pointed to on the part of the complainant worker? It might be said, " Certainly you went, but you brought it on yourself because you were disliked ".

I think we are right in seeking to protect, throughout our discussion, the persona non grata. The person who is disliked by his fellows often cannot help it. Very often it is due to his own merit. He may be more independent or believe rather too fervently in the principle that honesty is the best policy and that one should never tell a lie, whereas a white lie will often smooth over a difficult situation. The words caused or contributed to any action " are very wide. I would submit that it is open for consideration that conduct which makes people unpopular and leads to agitation for them to go could be prayed in aid by the person who unfairly dismisses them, in order to reduce the compensation payable.

If one looks at a claim by a union against an employer, could the employer say, " We certainly acted in a way which the Act says constitutes an unfair industrial practice. We broke a collective agreement. We know we did. We agree that we have no defence to claim any compensation under Clause 34 but you, the union representatives, have behaved with a consistent lack of courtesy. You were arrogant throughout, provocative in the extreme. You did not co-operate —indeed we have all the catalogue of sins to throw at you." Could that action on the part of a union or its representatives be prayed in aid? I do not know. I hope that I am not wasting the time of the Committee by taking extreme examples, but very often one must illustrate a proposition by taking an extreme example in considering whether it is outside or inside the ambit of the words examined. I raised the point really in order to ask the Government to give some consideration between now and Report to the question of whether those words are too wide and might be somewhat narrowed down to limit the action to something which can be specifically related in a much closer sense to the situation complained of.

The equivalent that one well knows in the law of negligence is that if the complainant were guilty of negligence that contributed to the harm he suffered. There you have precise conduct envisaged in the terms of the law. Here I would submit that the words are imprecise, and it is open to question whether they go too far as to imprecision. This is a matter which we ask the Government to consider between now and Report. It may be that they think the words are appropriate or they may consider that some reduction in their scope is desirable. I ask the noble and learned Lord to agree with me that there is some question here and that the Government will think further about those words.

5.10 p.m.


I do not make any complaint that the noble and learned Lord should take what he describes as extreme examples—extreme examples are precisely what one often does take when discussing legal principles —but one can also illustrate the case with homely and ordinary examples. I should have thought that the analogy which the noble and learned Lord drew with negligence cases was quite a good one. Again and again, sometimes by the the noble and learned Lord himself and sometimes by other noble Lords on that side of the Committee, we have been faced with a very reasonable case postulated in the ordinary course of industrial relations where the reaction of one party to the action of another is altogether out of proportion. I should have thought that it was exactly that kind of case where one ought to consider both sides of the question.

Take, for instance, the case of a strike. A strike, as I have said, can cost a great deal of money. It can be, and very often is, due to the wrong action of somebody in being a little trigger-happy. But it must be open to the union, to the shop steward or to the employee who has been accused of an unfair industrial practice, which may have caused a lot of damage and would ordinarily, if one applied strict legal principles, attract a high award of compensation, to say: " That's all very well, but you provoked me into it. You would not listen to complaints. You did not apply the proper procedure. You disregarded the code of honour and you are bound by rule." That would reduce compensation to nothing.

I should have thought that, apart from the equitable rule which we discussed earlier, this gave to a court in awarding compensation just the element of flexibility needed to apply the ordinary principles of justice and common sense. The words are wide, and intentionally so. They are designed to keep down compensation to what justice demands. In most quarrels, although you can often point to one side rather than the other as being in the wrong if you apply legal principles strictly you can often say that there are two sides to the question. and this certainly ought to enter into the matter of coin pensation.

LORD STOW HILL: I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.


Amendment No. 275 is consequential upon the other Amendments of a similar nature which I moved earlier on. I beg to move.

Amendment moved— Page 85, line 16, leave out (" unfair ")— (Earl Ferrers).

On Question, Amendment agreed to.

Clause 111, as amended, agreed to.

Clause 112 [Limit on compensation awarded against trade union]:

On Question: Whether Clause 112 shall stand part of the Bill?

5.12 p.m.


I hope I can put the point here quite shortly because this clause has already been discussed. As I previously pointed out, the ceiling on the compensation that can be awarded applies in respect of any complaint under this Bill, and in respect of each such complaint the permitted limit is available to be used by way of compensation. Rules are to be made in relation to the proceedings of the Industrial Court, and the question I should like to ask is this. I suppose that rules could provide for consolidation of complaints. There may be five complainants. each of whom starts with a separate complaint asking for compensation for themselves individually, and then the question is whether those separate complaints could, under the rules to be made for the proceedings of the Industrial Court, be coalesced into one.

I suppose it is arguable that if there were five such complaints, and under the terms of the rule they were taken together and treated as one proceeding. then the ceiling would apply as an overall limit to the aggregate of all those five complaints. Whether it would be an argument which ought to succeed or not would, I suppose, depend to some extent on the terms of the rule. But whatever is the result of any rule made, I am sure the noble Lord will agree with me that it is of importance that there should be absolute certainty as to what its effect will be. There should be absolute certainty, for example, as to whether, where you have five complaints that begin as separate complaints and then are coalesced into one complaint. the limit in paragraph (d) is £100.000 or £500.000. I should be grateful if the noble and learned Lord would indicate what the Government's thinking is in that regard and what is the likely result of any rule-making in a situation such as I have envisaged.


Before the noble Lord deals with that point, I wonder if at the same time he would consider a point of view that I am going to put to him, not so much in relation to the rules but in relation to the arithmetic. If the noble Lord will be good enough to look at the scale, he will see that the figure in subsection (2)(b) is definitely out of proportion. In subsection (2)(c) it is provided that in regard to a trade union having a membership of 25,000 or more but less than 100,000, the ceiling should be £50,000. So one could have a membership of 90,000 with a ceiling of £50,000. If one comes back to paragraph (b), about which I complain, one could have a membership of 9.000—that is to say 10 per cent. of the other—with a maximum liability of £25,000. So to repeat the simple figures, 90,000 produces £50,000, 9,000 produces £25,000. I have given the figures of 90.000 and 9,000 because they are not midway figures but are simple figures which make the point.

If the noble Lord will be good enough to look at the point in a different way, I think he will find that a reasonable step from paragraph (a) to paragraph (c) —the amount in paragraph (a) being £5,000 and in paragraph (c) £50,000—is at the most £15,000, as opposed to £25,000. I am not complaining about the principle of the scale. I am not at the moment even complaining about the amounts of the scale, so far as paragraphs (a), (c) and (d) are concerned. I am saying that on the logic of the principle the scale in paragraph (b) is out of line. I ask the noble Lord to be good enough to say that he will consider what I have said with a view to seeing whether, not a larger figure, but a smaller one, could be introduced.


The noble Lord, Lord Stow Hill, said that there was a need for absolute certainty in these matters, and postulated a case where a number of complaints which had begun as separate complaints were joined together in the later stages. I suppose he had in mind a dispute on an industrywide basis where a number of employers were in dispute with the same union or organisation of workers. I would agree with him that there is a need for absolute certainty. I do not think this is the sort of question that I should attempt to answer off the cuff. I think I should ask our advisers to look at it and to produce a form of words by way of guidance which we can give on Report. As the noble Lord said, substantial sums are involved here, and those who study our proceedings outside this House are entitled to an accurate, authoritative statement, which I think it better to defer to a later stage.

The noble Lord, Lord Diamond, asked about the four categories which are itemised in Clause 112. He drew attention to what he thought was rather too high a limit of £25,000 in category (b). He suggested that £15,000 might be a more appropriate figure. The difficulty in a discussion of this sort is that if in any category where there is an upper and lower limit one takes figures at either extreme of those limits one can find some differences. This particular scale has been the subject (and I know the noble Lord would have expected it to be so) of very careful and detailed consideration. This is not the occasion for me to deliver an exhaustive speech on how it was worked out, which I am equipped to do, but I will merely say that it is the opinion of the Government that the best approach is, roughly speaking, to group these categories according to the size of the membership of the particular union. There are other approaches that seem less satisfactory than this straightforward one. If they were adopted, one would then have to repeat all the time that these are the maxima, the top limits for compensation, and the courts will not necessarily at any time wish to award the maximum limit, any more than the law courts impose the maximum penalties laid down in criminal law. They work within that arid decide what they feel appropriate in each case. I will have another look at the £25,000 to see whether it might be more appropriate to have a different figure, and we can discuss it again on Report stage. But I cannot do so with any more specific undertaking or commitment than that.


I hope that the noble Lord will look at it with a somewhat less jaundiced eye. My noble friend Lord Diamond did not take extreme cases. He said £9,000. That is very much closer to the lower limit of £5,000. He was not taking extremes in making his comparison. The noble Lord, Lord Windlesham, said that these are the maxima. That is true. We can only compare the figures given in each paragraph. if we took the mean figure given in paragraph (c) the disparity would he just as great. I hope that he will look at it from that point of view. I think he will come to the conclusion that my noble friend is right.


I am grateful for what the noble Lord, Lord Windlesham has said, but I have to press him further. I am sure that the matter has been carefully considered, but what is obvious is that this is not pure arithmetic; policy has entered into it. The only element of policy to which the noble Lord referred was the limitation of £1 per man. That is an element which substantiates my case. If the noble Lord will look at pragaraph (a) he will see you start off with £1 per man-5,000 men, a £5,000 limit. If he looks at the end case he will see that £100,000 is the limit for any large union, no matter how many hundreds of thousands of people there may be in that union. Therefore one has gone from £1 per man to something very much less. If he will look at (c) he will see £100,000 produces a limit of £50,000.


One hundred thousand members.


One hundred thousand members produces £50,000. If my arithmetic serves me correctly that is 10s. per man.


Fifty pence.


That is, nowadays, 50p. That means one has gone from the case in (a) of £1 per man, to the case in (d) of very much less than that by an appropriate step in case (c), but not, alas, in case (b) where you have 25,000 men producing a maximum of £25,000. Even if you look upon it on the basis of maxima, which was the noble Lord's point, you come to the conclusion that £25,000 in (b) is too high because it does not take into account the policy which is involved in (a), (c) and (d). Furthermore, if the noble Lord looks at it in terms of average figures, the mean figure, he will realise that £25,000 is again totally out of scale. I gave a figure as an example, and I made it clear that it was not the sole basis of my argument. I am bound to say, albeit that lengthy discussions on figures are not wholly acceptable in all quarters of the Committee, that I should be grateful if the noble Lord would look at this point with an open mind. He indicated in his reply that his mind was very nearly closed; I should be grateful if he would take this away and look at it.


I hope that my mind will never be closed, and I should not like to argue with an accountant who is also the man who, I believe, held the office of Chief Secretary to the Treasury, unbroken, for six years. The policy behind this scale is not exactly to relate the size of membership on a fixed sum per head basis, but is fixed on the basis of four broad groupings of unions, according to size. The limits are maxima which we believe are not out of proportion to the assets and incomes of the unions in each group. The noble Lord has made his point; I have said that we will have another look at it, and I do not think I should add to what I said in my earlier reply.

On Question, Clause 112 agreed to.

Clause 113 [Limit on compensation awarded under s. 99, s. 102 or s. 105]:


I have to call the Committee's attention to the fact that if Amendment No. 275A is agreed to, I will not be able to call Amendment No. 275E.

5.18 p.m.

LORD BYERS moved Amendment No. 275A: Page 86, line 25, leave out lines 25 to 27.

The noble said: It may be for the convenience of the Committe if we discuss with this Amendment No. 275B and, indeed, the principle in the official Opposition's Amendment, No. 275E. They all relate to what the Government's thoughts are behind the proposals to set maxima for compensation in Clause 113. The limits of damages payable to the people for unfair dismissal, or other reasons in which damages may be awarded, are set at a maximum of 104 weeks' pay, or 104 weeks' pay at £40 a week, whichever is the less. The official Opposition's Amendment would reverse that, and they would say whichever is the greater. We cannot believe that it is equitable that a man should be penalised comparatively if he earns more than £40 a week. This seems an extremely arbitrary cut-off point. We should like to know what the thinking is on this. At first sight it does not look as though it can be justified. I should also like to ask the noble Earl who is to reply what the thinking is behind subsection (3), which says that the Secretary of State may by order made by statutory instrument provide that there shall be a variation in these sums, and the figures of £4,160 and £40 could be larger sums if, in certain circumstances, this was thought right. What are the circumstances in which that might apply? I beg to move.


The problem here is that whenever a new limit of payment or of compensation is suggested there is always the difficulty of where the axe should fall. Some will say that the limit which has been chosen is inadequate and should be higher, and others may say it is too high. The principle on which the Government have proceeded in drawing up these figures in this particular clause is this. It represents a basis of assessment of compensation which is entirely new to the industrial tribunals. Therefore it has been considered desirable to make a limit on the figure which they can award as compensation.

The figures which have been chosen are those sugegsted by the Donovan Commission. If the noble Lord, Lord Byers, were to address himself to the Donovan Report he would find that it suggested a figure of £40 per week or a figure of £4,160, which is of course two years' pay on that basis. I would only add, in passing, that the previous Government's Bill had a maximum figure considerably lower—a figure of only £1,920. But we believe the figure in the Bill to be reasonable. Where there are people who are on fixed-term contracts, and therefore on considerably higher remuneration, they can always have recourse to an action for breach of contract, if that should happen, in the ordinary courts. With regard to the noble Lord's point that the Government can alter the figures concerned by way of regulation, this is done in order to provide for the possibility that as circumstances progress it may be discovered that, in new circumstances, the figures put into the Bill are inadequate and that it would therefore be desirable to give the Secretary of State the right, with the approval of Parliament, to increase those figures.

5.22 p.m.


Of course, what the Liberal Party feel about the reply which the noble Earl has been good enough to give just now, I do not know. Certainly so far as subsections (3) and (4) of this clause are concerned, I recognise there must be some method of adjusting for the inflation which is current and which the noble Earl has just said he anticipates will continue. So far as the main point of the Amendment is concerned, the limitation to either 104 weeks' pay or a given sum of money, whichever is the less, the minimum one should ask for is a number of weeks' pay. There can be no justification whatever for limiting the compensation to the pay that somebody else, and not the person involved, might be receiving; that cannot he any basis for arriving at a figure of compensation. If the Government want to introduce a further principle of a fixed sum, as they do by introducing paragraph (1)(b), then surely the alternative should be either that fixed sum or 104 weeks' pay, whatever the pay may be, whichever is the greater.

Circumstances might arise in which it might be felt by those awarding the compensation that so many weeks' pay is not an appropriate measure; that a lump sum is the measure. Here is a measure indicated. But if it is to be measured by relation to weeks' pay, it should be related exactly to whatever the pay is; and of course subsection (2) provides for calculating the pay. I am bound to say that, so far as we on these Benches are concerned, we are totally dissatisfied with the noble Earl's reply on the first Amendment which has been moved.


I entirely agree with the noble Lord, Lord Diamond, and I do not think the Government have made out any kind of case for this proposal as it stands, except for quoting Donovan; Donovan is helpful and useful but it is not, as several noble Lords have pointed out, Holy Writ. There are two definite principles, two separate and rather complicated principles, involved in paragraphs (a) and (b) here. I should have thought that on the whole the principle involved in paragraph (a), that in some way compensation should be tied to the man's weekly wage, is the proper one. If this is so and it is the proper way of doing it, then it is improper that those who are earning more than £40 a week should get less than their due according to this first method of computation.

I can see why the Government have included this provision, but I do not think it is very logical or that they have really examined it closely enough. I see considerable virtue in the Amendment in the names of the noble Lords, Lord Stow Hill and Lord Diamond, but 1 nevertheless think that ours is probably the simpler and reduces the whole question to the simple idea that all the way through compensation should be related to rates of pay. Unless we receive something a little more helpful from the Government, I should be inclined to ask the Committee to divide.



Clause 113 agreed to.

Clause 114 [Contribution to compensation on complaint under s. 102]:

On Question, Whether Clause 114 shall stand part of the Bill?

5.27 p.m.

On Question, Whether the said Amendment (No. 275A) shall be agreed to?

Their Lordships divided: Contents, 42; Not-Contents, 97.

Archibald, L. Gardiner, L. Ogmore, L.
Barrington, V. Garnsworthy, L. Phillips, Bs.
Beaumont of Whitley, [Teller.] L. Gladwyn. L. Platt, L.
Henley, L. [Teller.] Reay, L.
Bernstein, L. Hilton of Upton, L. Ritchie-Calder, L.
Beswick, L. Hirshfield, L. Rochester, L.Bp.
Birk, Bs. Janner, L. Sainsbury, L.
Brockway, L. Kennet, L. Shackleton, L.
Brown, L. Lindgren, L. Shepherd, L.
Buckinghamshire, E. Llewelyn-Davies of Hastoe, Bs. Stonham, L.
Burntwood, L. Meston, L. Stow Hill, L.
Byers, L. Moyle, L. Walston, L.
Champion, L. Noel-Buxton, L. Wells-Pestell, L.
Delacourt-Smith, L. Nunburnholme, L. Wootton of Abinger, Bs.
Diamond, L.
Aberdare, L. Emmet of Amberley, Bs. Milverton, L.
Auckland, L. Enniskillen, E. Mowbray and Stourton, L.
Balerno, L. Ferrers, E. Oakshott, L.
Balfour, E. Fortescue, E. Orr-Ewing, L.
Barnby, L. Gage, V. Rankeillour, L.
Belhaven and Stenton, L. Goschen. V. [Teller.] Rochdale, V.
Belstead, L. Gowrie, E. [Teller.] Rockley, L.
Berkeley, Bs. Greenway, L. Rothes, E.
Bessborough, E. Grenfell, L. Ruthven of Freeland, Ly.
Boston, L. Grimston of Westbury, L. St. Aldwyn, E.
Brabazon of Tara, L. Hacking, L. St. Helens, L.
Braye, L. Hailes, X. St. Just, L.
Brooke of Cumnor, L. Hailsham of St. Marylebone, L. (L. Chancellor.) Sandford. L.
Brooke of Ystradfellte, Bs. Sandys, L.
Brougham and Vaux, L. Hankey, L. Selkirk, E.
Caccia, L. Harris, L. Sempill, Ly.
Clwyd, L. Hood, V. Shaftesbury. E.
Coleraine, L. Howard of Glossop, L. Sinclair of Cleeve, L.
Colwyn, L. Ironside, L. Somers, L.
Conesford, L. Jellicoe, E. (L. Privy Seal.) Strang, L.
Cork and Orrery, E. Kinloss, Ly. Strange of Knokin, Bs.
Cottesloe, L. Lansdowne, M. Strathcona and Mount Roya L.
Courtown, E. Latymer, L.
Cowley, E. Lauderdale, E. Teviot, L.
Craigavon, V. Loudoun, C. Teynham, L.
Crawshaw, L. Lyell, L. Thorneycroft, L.
Cromartie, E. McFadzean, L. Tollemache, L.
De Clifford, L. Macpherson of Drumochter, L. Tweedsmuir of Belhelvie, Bs.
Denham, L. Malmesbury, E. Vivian, L.
Drumalbyn, L. Mancroft, L. Ward of Witley, V.
Dudley, E. Mar and Kellie, E. Windlesham, L.
Dundee, E. Margadale, L. Wise, L.
Egremont, L. Massereene and Ferrard, V. Wolverton, L.

Resolved in the negative, and Amendment disagreed to accordingly.

5.36 p.m.


May I just ask the Government why, in the contributions provisions of this clause, the provision with regard to diminution of compensation by reference to provocative conduct on the part of the person who seeks contribution is not included? I refer to the provision of subsection (3) of Clause 111, which we have already discussed. It would seem as a matter of justice that it ought also to come into this clause. The Government may take the view that, in any event, under subsection (3) the Industrial Court could reduce the amount of contribution by reference to a consideration of provocative conduct, but I should have thought that inasmuch as there is specific reference to it in Clause 111 and not in Clause 114, as a pure matter of construction the Industrial Court, in exercising its discretion, would think that it was precluded from taking into account provocative conduct in order to diminish the compensation.


I cannot give an answer straight away on that. I will write to the noble Lord.


I apologise again for not having given the noble and learned Lord notice of my question.

lause 114 agreed to.

Clause 115 [Constitution and proceedings of Commission]:

LORD PLATT moved Amendment No. 275D:

Page 88, line 7, at end insert— (" () The Secretary of State shall appoint not less than two persons who are members of organisations entered in the special register established by section 82 of this Act.")

The noble Lord said: As the Committee knows, this clause deals with the constitution and proceedings of the Commission on Industrial Relations, and the obvious point of the Amendment is to ensure that among its members there shall be not fewer than two persons who are members of organisations entered in the special register established by Clause 82. As I have pointed out before, the existence of certain professions which have ethical obligations to their patients or clients that lie outside the ordinary employer/employee relationship has largely been ignored in the drafting of the Bill. We have the assurance that further consideration is being given to the whole question of people who come into this category—-certain professional engineers, doctors, arid such like—and if the Government came to the happy conclusion that these professions should not be included in the Bill this Amendment would not be necessary; but on the assumption that it is likely that the pro- fessional worker will be forced into an Act which has clearly been designed for other types of workers, and that the professional worker is always likely to be swamped by organisations of manual, clerical, technical and other non-professional workers who are in the majority, I think the least we can do is to try to see that on a Commission which may have to decide questions of recognition and whether small minority groups are to have a separate ballot, and important questions of that kind, there is representation from those kinds of workers who are to be on the special register. I beg to move.


What the noble Lord is proposing is that on a Commission which is to be composed of not less than 6 nor more than 15 members there should be 2 members who are members of organisations entered in the special register. There are at least two reasons why I am afraid I could not accept this Amendment. But let me say right away that the Secretary of State gave an undertaking that he would ensure that the Commission included among its members one or more who would be fully conversant with the problems of professional work of all kinds. I would ask the noble Lord to he satisfied with that. If we were to start putting into the Bill itself provisions that representatives of particular interests should be appointed to the Commission, I think we should quickly run into trouble.

I quite understand the noble Lord's view that the professional interests have a rather special position, but many people can argue that they have a rather special position, once that argument is put forward. While it is obviously desirable that there should be representatives of the professions on a body of this kind, once a person is appointed to the Commission—I think my noble and learned friend said this earlier to-day—he is appointed not as a representative; he is appointed as an individual. Members are then all members of the Commission; they lose their identity as representatives altogether. That is the first and main reason why the Amendment cannot be accepted.

There is another technical reason. If appointments were made a statutory requirement and if at any given time we had to have two members of a particular profession, or two people representing the professions entered on the special register, then any representative member —my noble and learned friend said this also—or group of members might either resign or refuse to serve. In that way they would render the Commission unconstitutional and thus prevent it from functioning at all. It is not the intention to say that there will be so many from such and such an interest and so many from another interest. I may say that representations have been made to us that this should be so, but we think it wholly undesirable. We think the Commission should be composed of men experienced in industry who, once appointed, should be seen collectively and individually to be wholly impartial.


I suppose that the reply of the noble Lord, Lord Drumalbyn, was to be expected, because Governments, quite rightly I think, are always chary of writing in representatives from bodies of this kind, but I think he rather overstated the case against it. I cannot quote chapter and verse at the moment, but it seems to me that even in the relatively short time I have been in your Lordships' House we have passed various legislation in which we have included representatives of professional bodies without worrying too much about whether if one or two of them refuse to take part the whole thing would become unconstitutional. The question is whether the position of these particular minorities we are talking about is special enough for us to break the generally good rule not to put in specific representation. I think there is a stronger case than the Government have at present acknowledged.

This is a very broad Bill dealing with very broad problems, and in it I think the interests of the professional and other similar bodies tend to have been rather overlooked. In this House we have indeed, thanks to the noble Lord, Lord Platt, and others, given some of these problems a better airing than they had in another place, but they still exist. I think that, particularly on the Commission on Industrial Relations, it is extremely important that there should be people who are not only conversant with the problems of these bodies but who actually—although, of course, they will not act as representatives—will be sympathetic with the problems, as well as conversant. I imagine that the Commission on Industrial Relations will have a lot nearer fifteen than six members, and therefore I do not think two is too much to ask for on a Commission of that size. I do not know what the reaction of the noble Lord, Lord Platt, is to the Government's reply, but my inclination would be, while accepting reluctantly that the Government cannot write this into the Bill, that they should amplify just a little the undertaking given by the Secretary of State in another place so that we can be assured that there will be at least two people who are not only fully conversant with these problems but actually, we hope, members of such bodies, so that they are fully sympathetic. I hope the Government can extend the assurance given, at least a little.


I agree completely with what the noble Lord, Lord Beaumont, has just been saying, namely, that in general I share the view put forward by the noble Lord, Lord Drumalbyn, that it is not a good thing, in constituting committees, commissions and the like, to have somebody representing this and that and almost every other interest. You end up with a large, unwieldy committee, and everyone thinks he is representing something, even if it is laid down that the members are acting as individuals. Nevertheless, I also agree with the criticism made by the noble Lord, Lord Beaumont, of the Government's position in this instance, as I think this is a very important minority, and if it is agreed that minorities require special consideration then this is one of the ways in which that special consideration might be given to them. I hope the Government will go as far as at least giving a rather firmer assurance, such as the noble Lord, Lord Beaumont, has suggested, in which case I think we should have to withdraw our Amendment.


I do not know that I can go very much further than I have said. The noble Lord, Lord Beaumont. is asking me to say specifically that persons whom the Secretary of State has promised to appoint should be not merely conversant with the problems but professional workers, as I understand it, themselves. If that were so, they might again be regarded as representatives. I think there is very little between us on this question. The intention is absolutely clear: that the special position of the professionals should not be overlooked. The Secretary of State has promised that by making appropriate appointments he will see that these interests are safeguarded on the Commission. Therefore I hope it will not be necessary to write it into the Bill. because if it were written into the Bill it would, to use the familiar expression, stick out like a sore thumb; it would be a wholly exceptional provision and it would tend to emphasise that in some way or another the members of the Commission were representative. That is precisely what we do not want.


Far be it from me to intervene, but I should have thought that the noble Lord could meet the underlying point of the Amendment without accepting the Amendment itself. If I understand it correctly, there is at the present time no mention in the Bill or the Schedule of what the noble Lord said his right honourable friend had undertaken, namely, that persons appointed should be conversant. It would not be asking too much to invite the noble Lord to consider whether, if not in the Bill itself then in the Schedule, there should not be an all inclusive phrase to make it clear that those appointed should have experience—-and then the phrase can be as wide as you like. If it would help to say, " including the professions ", or whatever particular form of words would give solace to the minds of those who are particularly concerned that the professions may not be fully regarded, I cannot see that that would be asking too much. One does not want the Government to restrict themselves unduly; that was the point of the noble Lord. One does not want representatives either to be seen to be, or felt to be, representatives. I hope that will be a generally accepted view, otherwise the independent quality of the Commission will suffer. I am sure that we want, and are going to get, people with all-round experience. What I cannot see is why it would hurt the Government to say, in broad terms, that what is required is people with all-round experience, including experience of the profession involved on the special register. I cannot see to what extent it would hurt the Government to say in the Schedule that they are going to do what they intend to do. I hope the Government will give further thought to this point.


I am most grateful to the noble Lord, Lord Diamond, for his intervention; I think he has raised a valid point. We are grateful to the noble Lord, Lord Drumalbyn, for stating categorically once again the undertakings of the Secretary of State. That is worth while in itself. What I would suggest to the Committee, and particularly to my co-sponsor, the noble Lord, Lord Platt, might be the right thing to do is to say that we will follow up the suggestion of the noble Lord, Lord Diamond, and try to find a suitable Amendment for Report stage along the lines that he has mentioned. In the meantime, perhaps the Government —I am not asking for an undertaking now —could think about this problem, and they may see that there is considerable merit in what the noble Lord, Lord Diamond, has said, if an Amendment were to be couched in terms of that sort.


In view of what noble Lords have said from three directions, of course we shall have a look at this point. Perhaps in the meantime we shall also he interested to look at the result of the study that the noble Lord is going to make in putting down another Amendment.


In that case, I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 115 agreed to.

Clause 116 agreed to.

Clause 117 [Action initiated by Commission]:

5.53 p.m.

LORD DIAMOND moved Amendment No. 275F: Page 89, line 13, leave out subsection (1).

The noble Lord said: I beg to move Amendment No. 275F. The point here could be expressed at length, but I am sure your Lordships would prefer me to express it very shortly. Here is a provision which will give far too wide a roving power to the Commission, and make the Commission seem like snoopers. That is an indelicate word, but it is the word which, in the minds and the language of those who are subject to the snooping, will describe what they feel about it. It is a simple point. I have made it. I beg to move.


I am not sure that I can be quite so brief as the noble Lord if what 1 say is to mean anything at all. I understand what the noble Lord is getting at, but, in the first place, the Commission will not be able to do anything of this kind without regulations made by the Secretary of State. In the second place, their authority is limited. Where the Commission are required, or authorised, to examine a question under Clause 11, or Clauses 35 to 38 of the Bill, they may undertake the examination of any question which appears to the Commission to arise in connection with that question and could be referred to the Commission by the Industrial Court on an application under Clause 43 of this Bill. Very briefly, the two circumstances are these. So far as Clause 11 is concerned, if noble Lords will cast their minds back—it seems a long time ago—to our discussions on ballots and the procedure on agency shop agreements, the Court may request the Commission to proceed to organise a ballot; and then Clause 11 says that if, in such circumstances, the Commission find there is a question in dispute in respect of recognition, then they should make a report and not proceed further to arrange the ballot. Under Clause 117, regulations might be used to enable the Commission to investigate that dispute or, if the Commission think that a dispute is likely to arise, it would enable the Commission to examine those circumstances.

What I think would happen normally would be, as we explained when we were dealing with this clause, that either the union concerned or the employer, or possibly the employer and the union jointly, whoever had made the application or, as a last resort the Secretary of State if he thought there was trouble brewing, would make an application under Clause 43 to invoke the procedure for recognition. Very much the same sort of thing could happen under the procedure agreement arrangements. Again you might come up against circumstances in which the scope had to be widened where the Commission were unable to proceed because of recognition difficulties, or indeed because some other matter—which, to be quite honest, we cannot actually foresee; and of course we cannot foresee everything in these matters—needs to be examined by the C.I.R. before further progress can be made. This is the purpose. We have made it subject to regulation simply because one cannot foresee exactly the circumstances in which the regulations would have to be made.

At an earlier stage I was asked whether the regulations would be special or general. I can now give the answer that they could be either, but it is the intention that general regulations should be made to enable the Commission to make that kind of inquiry. The intentions here are wholly benevolent. They are to enable the Commission to deal with a snag when it arises without having the whole of the procedure upset. It does not involve snooping in any way. Normally, of course, the Commission, in circumstances like this, would want to get the agreement of the parties to proceed further: without that they might run into difficulties. These are the intentions. This is an admittedly long-stop provision, but I hope that noble Lords will allow it to stand in the Bill. It could be useful.


The noble Lord has been as courteous as ever, but I cannot say that I am wholly satisfied with the answer, especially now that he has made it clear that the regulations will be general—


That is the intention.


The intention is to make the regulations general, and therefore the power of roving will be, as indicated in this clause, very broad indeed. The way the clause is drawn gives one that impression, and indeed suspicion, because it states: Provision may be made by regulations… for enabling the Commission, where it appears to them to be expedient to do so to rove around. Reading that, one thinks that, provided the regulations are made, the Commission can rove around wherever they think it expedient to do so; and indeed the noble Lord has said that the regulations will be general. He has also said helpfully that this is regarded as a long-stop. What I am going ao do, therefore, is to ask him whether he will have another look at the language to make it clear that there is to be a limitation on the roving powers of the Commission, so that they cannot initiate any action of any kind they like. After all, that is what snooping is; just deciding off their own bat to sniff around to see whether they can find something wrong somewhere. That would be a very great pity, because I think there is a considerable chance of relations with the Commission—not with the N.I.R.C. —being good. One hopes, therefore, that no powers will be given to the Commission which would damage the relationship unnecessarily. The feeling that the body to which you are going might at any moment turn themselves into snoopers is not a happy feeling and would restrain good will and co-operation.

The noble Lord referred to the fact that the Commission might well feel that they ought to get consent. If he could introduce words such as, " after obtaining the consent so far as possible of the parties concerned "; or " after consulting the parties concerned ", or some words which would not be wholly limiting—I know that he could not do that, and I am not asking for it—but which would indicate that the function of the Commission is still largely to co-operate but that they may need in certain limited circumstances to carry their job a little further in order to finish the first part of it which I quite understand, and would do that " in consultation with ", but not necessarily " in agreement with ", then I should have thought one would get a different aspect into this clause. That is really all I am anxious to do. I hope that the noble Lord will be good enough to say that he will do that, in which case I shall seek leave to withdraw the Amendment.


I think that the noble Lord's approach to this matter is wholly reasonable and constructive and, indeed, perceptive, and it would be extremely churlish of me to refuse to look at these words again. I still think that it is a little unfortunate that the word " snooping " should be held to, because as the clause is drawn it can only apply where the Commission have been called in by the Court; where they find that there is a snag under the agency shop or the procedure agreement arrangements, and where they feel that they cannot go ahead until that snag is resolved. They have to make a report on the matter to the Court, anyway, and it will be well-known—in the case of Clause 11, at any rate—that a snag has arisen. But we shall willingly look at this again, because I agree that it is not the easiest clause in the Bill.


Just adding the one sentence, that I did not myself invent the word "snooping "—that is what has been put to me by those who feel that the provisions at the moment are tantamount to snooping, and I thought it my duty to convey this to the Government —I beg leave to withdraw the Amendment.

Amendment, by leave, withdrawn.

Clause 117 agreed to.

Clause 118 agreed to.

Clause 119 [Annual report of Commission]:

6.5 p.m.

LORD BYERS moved Amendment No. 275C.

Page 90, line 31, at end insert— (" (4) The Commission shall in their annual report review the code of practice laid before Parliament under the terms of section 3(1) of this Act and state their recommendations for its revision taking into consideration the best industrial practices.").

The noble Lord said: We feel that this Amendment would strengthen the machinery. Certainly, in the first few years there are bound Ito be revisions and reviews of the code of practice, and because it is such an important part of the whole structure of what we are seeking to do for industrial relations we believe that a duty should be laid upon the Commission to review the code of practice and, in its annual report, to put forward its recommendations. I think that this is a self-evident Amendment. I beg to move.


I should like to support this Amendment. For simplicity, why should not the report be published, if the C.I.R. want to publish it and decide that it should be published?


I am not certain that the noble Lord, Lord Bernstein, is speaking about this Amendment. The noble Lord, Lord Byers, has argued that the Commission should not only review the code of practice annually, but should also state their recommendations for a revision annually. Obviously, the Commission will be watching the working of the code very closely indeed, and we hope they will have very close, informal relations with the Secretary of State and his conciliation officers, and so on. But I put this to the noble Lord, because I think it is important. Once the code of practice has been made, it will obviously need time to settle down. If we were to put a provision in the Bill which would mean, very probably, that the code was going to be changed annually, then people would not really know where they stood on it. When we have the code we shall want to have something that people will get to know well, and we do not want it changed from year to year. If the Commission had to state each year any recommendations which they might have for revision, there would be little point in their doing so unless that was followed up by a revision of the code. We think that this would be undesirable and, for that reason, I hope that the noble Lord will not press the Amendment.


I should very much like to support this Amendment. I think there is the greatest danger of codes of practice getting entirely out of date, and I thought that earlier in the debates on the Bill we had evidence of that. Codes of practice of trade unions are years and years out of date, and codes of practice laid down by employers, such as the railways and so on, are years and years out of date. A work to rule can really be based on the fact that codes of practice are out of date. I know that we are now discussing a code of practice of a somewhat different kind, but, so far as I can see, it can become out of date just as easily and if there is no requirement laid down that it shall be reviewed from time to time—it need not be annually—it will always tend to be left over there will always he the pressure of other business and it can always wait until next year. It seems to me that the Amendment is an extremely reasonable one.


Are we not tending to finesse a little too much here, because subsection (2) states that the Commission …shall draw attention to any particular problems in connection therewith which appear to the Commission to be of special importance. I have myself never known how to draw particular attention to a problem on some procedure without at least suggesting how it ought to be solved. I think people generally do that. Implicit in the Bill, I think, is something which is tantamount to what is in the Amendment. I really do not see much difference between the two. So long as the Commission are permitted and, indeed, directed to draw attention to problems, surely there is nothing to prevent their offering solutions if they see fit.


I wholly agree with what the noble Lord, Lord Brown, has said, and I agree that there is not a great deal of difference between us on this. The trouble is that if you formalise the requirement on the Commission in this way what the Commission will be tempted to do, and what it will be liable to do, is to save up its recommendations. This argument cuts both ways, I know, but it will be liable to save up its recommendations to put them all in the annual report, and then there will be an annual revision. We do not want that. What we want is that the Commission should be in closest touch, exercising supervision over the code, and if it sees something is wrong, that it should draw attention to it at once and not wait until the end of the year. I really think this would be a better procedure even if, in the early stages, it may mean that there will be more changes in the code. As I said, this argument cuts both ways, but we certainly do not want people to feel, " This thing is going to be changed every year, so we do not have to be too careful about it."


What the noble Lord is saying is that he wants it to be changed every month.


I think there is yet another danger, and that is that if you impose on the Commission a duty to put forward recommendations it will feel it is not doing its duty unless it can find something to recommend, and accordingly it will tend to scrape the bottom of the barrel when really nothing need necessarily be raised.


I must say that I am impressed by the debate and the arguments which have been adduced, particularly for having some method of reviewing the code of practice; and I imagine that the reason why this particular Amendment has been chosen for this particular place in the Bill is that it seems the most convenient place in which to bring out this particular point. The noble Lord, Lord Drumalbyn, must not complain if the answer to his comments is that the Commission have to review once a month, because he was making the case—and this was the only point—that a year might be too long. That point can easily be covered by saying, " Not less than every year ". But I should have thought that it is a very regular practice for bodies to be required to report each year who may yet have nothing to report; nevertheless, they are required to report annually. I should have thought it was a healthy practice to have some system. I do not particularly care for the imposition of this annual system, and I dare say those who moved the Amendment do not insist on something happening exactly after 12 months, but there ought to be some system under which the code of practice is kept up to date and somebody has a responsibility for doing that; and it ought to be embodied in some kind of legislation so as to give people that satisfaction. I should have thought, therefore, that the noble Lord could meet the point of the Amendment in some general way and perhaps indicate that he would be prepared to look into it.

The second question I wanted to put is a simple one. Inasmuch as it is conceivable that during the course of the next 48 hours we may be rising for the Whitsun Recess, may I ask the noble Lord whether he can undertake that the code of practice will be available for us when we resume? It would be very helpful indeed to have it available. All the indications are that it is on the point of being available, and I think this is a convenient time at which to ask the question.


Do not Clauses 2 and 3 provide for the revision of the code already? Incidentally, Clause 3(4) shows that the advice of the Commission is needed on that.


Yes, this is absolutely so. May I say, on a personal note, that in a rather different sphere and on a much smaller scale I have had personal responsibility for running a code, and I know roughly how things arise there. Obviously, if recommendations have been made in the course of the year for the code to be changed, if points have been drawn by the C.I.R. to the attention of the Secretary of State, they will refer to that in their resports; but this is a totally different sort of conception from the idea that they should save up their recommendations for changes in the code and put them in their report annually. I take the point of the noble Lord, Lord Diamond, on this matter. We certainly must have a look, just to make sure that the procedure for the C.I.R. to keep watching the code—I think that is what he wants—is quite clear; and I hope that on that basis the noble Lord will be prepared to withdraw his Amendment. So far as concerns the other point which the noble Lord raised, I am afraid I cannot give him any definite information at this moment. It will not be very long. obviously. but I cannot give him a definite date as to when the draft of the draft of the code is going to be published.


I am not at all convinced by the noble Lord, who is usually very convincing on this subject. We have heard some very odd arguments. I do not read subsections (2) and (3) as doing anything like what we are asking for in this particular Amendment. What we are asking for is that the Commission shall review, and if they feel that a revision is necessary they shall call for that revision. This is an annual event, but it does not mean to say that they have to save up these things. They will be reviewing the code all the time, but in their annual report (which can be debated by Parliament, I assume) they will have reviewed it. In some years they may well say, " The revision shall be nil; we do not recommend any revision; the thing has not been running long enough ". The idea that when the Commission are asked to review they will be tempted to review in such a way that the code will be chopped and changed the whole time does not stand up to argument, because that would argue that the Commission were an irresponsible body. I think that the noble Lord ought genuinely to look at this subject before the next stage, because there are many in both Houses who would like to think that there is a duty on the Commission to review and advise revision or no revision and give reasons for no revision; and then we can debate the matter in Parliament, as we should. But in view of what the noble Lord has said, I ask leave to withdraw this Amendment.

Amendment, by leave, withdrawn.

Clause 119 agreed to.

Clauses 120 to 123 agreed to.

6.20 p.m.


As we have now reached the end of Clause 123, I think it would be appropriate for me to ask the Government what their intentions are as to the statement I made a short time ago about rising for the Whitsun Recess during the course of the next 48 hours—whether I was over-optimistic or not.


I have been asked what my intentions are at the moment. I had hoped that we should cover Schedule 3. I do not know whether that would take very long. I should have thought that in the course of the next half an hour or three-quarters of an hour we could manage to cover up to the end of Schedule 6. I thought that this was a possible target; but if noble Lords feel—


I think it was agreed that we should go to Amendment No. 276D.


I think there is a misunderstanding, My understanding of the situation was that we should go as far as we have gone. I would say to the noble Lord, Lord Drumalbyn, that we have been here since 11 o'clock and I think we have made quite good progress—in fact, I would say very good progress. I understand that the Government have set aside three days after the Whitsun Recess, and it seems to me that in that time we should quite easily be able to deal with the remaining part of the I therefore hope that in the circumstances the noble Lord will agree to the House being resumed.


My noble friend the Leader of the House was most anxious that we should complete Schedule 6. I think that we should make a start on it.


Schedule 3 includes extremely important provisions with regard to the constitutional position of the Commission. I should think that the Committee would wish to discuss that in some detail and that it is bound to take some considerable time.


May I support the noble Lord, Lord Shepherd? If we are now to embark on the Amendments up to Amendment No. 124, that is going to take a great deal more time than 40 minutes.


I quite agree that to-day we have made excellent progress—much better progress than we have made on any previous day, and I am grateful for that. If noble Lords feel that they want to discuss Schedule 3 in greater detail, then I think it would be a mistake to start on it at this hour. In that case, I beg to move that the House do now resume.

Moved accordingly and on Question, Motion agreed to.

House resumed.

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