§ 4.4 p.m.
§ LORD SHEPHERD
My Lords, I beg to move that the House do now resolve itself again into a Committee on the Bill.
§ Moved accordingly, and, on Question, Motion agreed to.
§ House in Committee accordingly.
§ [The BARONESS WOOTTON OF ABINGER in the Chair.]
§ Clause 2 [Status of trade unions]:
THE LORD CHANCELLOR moved Amendment No. 4:
Page 2, line 43, after ("this section") insert ("and section 4 below").
§ The noble and learned Lord said: If your Lordships agree I think it will be convenient to take Amendments Nos. 4 and 6 together. These are purely technical Amendments consequential on the introduction into the Bill in another place of a new clause which is now Clause 4. Previously the provisions of that clause were to be found in Ciauses 2 and 3, but for convenience they have been assembled in Clause 4. I beg to move.
§ On Question, Amendment agreed to.
THE EARL OF GOWRIE moved Amendment No. 5:
Page 3, line 12, leave out from ("voidable") to end of line 16.
§ The noble Earl said: It might be for the convenience of the Committee, while in our conventional manner I move this Amendment and Amendment No. 7 separately, that we should debate them together as they deal substantively with the same point. The key point in these Amendments is our view of this Trade Union and Labour Relations Bill as it stands. There is, of course, a fairly radical difference of viewpoint between the two sides of the Committee here. Our view is that the Bill limits the rights of courts to provide Common Law remedies in favour of individuals who are arbitrarily excluded or expelled from trade unions. We feel that the position is at very best not clear. But our position is clear. It is that when there is any doubt in a matter of this kind, that doubt should be resolved in favour of the individual.
§ We accept of course the point that noble Lords opposite have frequently made in general debates on the subject, that trade unions rarely misuse their powers against individuals: trade unions are organisations which grew into being to protect individuals who had few powers themselves and therefore it is hardly likely that they would make a great practice of trampling on rights. But we feel that in any human organisation fallibility and error can occur, and that the Bill provides a loophole for abuse. We believe that any loophole should be stopped up. We recognise the point made by the Minister of State for Employment in Committee in another place, that individuals can be unreasonable and can have unreasonable recourse to law and involve organisations in tedious and expensive litigation. Even in organisations which are there to represent the best interests of their members, one can of course have difficult members. But the Minister also said—and perhaps this is the important point—that the Bill does not and is not intended to reduce Common Law rights. We feel that that is a fine statement of intent, but we do not see that intent backed up by legal opinion on the Bill as it stands.
§ The Law Officers of the previous Government, the Government of my noble friends, regularly attended debates on the Industrial Relations Bill, and I believe that if the present Law Officers had been given a run over this course we might have been clearer on the point.1443
§ But it was not to be, and we have had to rely on the Minister's reply. I should therefore very much like to hear what the Government have to say on this point at this stage.
§ THE LORD CHANCELLOR
As the noble Earl, Lord Gowrie, has said, the effect of these Amendments, Nos. 5 and 7, is to remove the provision that a rule of a trade union or of an employers' association shall not be unlawful or unenforceable by reason only that it is in restraint of trade. Clauses 2(5) and 3(5) maintain the protection which is at present afforded by Section 135 of the Industrial Relations Act 1971 against prosecution for civil conspiracy or the invalidation of agreements in trust on the ground only that the organisation is in restraint of trade. This protection was, as the Committee will know, originally conferred by Sections 2 and 3 of the Trade Union Act 1871, and in the case of Faramus v. Film Artistes' Association of 1963, the House of Lords (which is still, after all, the final court of decision, as the noble and learned Lord, Lord Hailsham, said in such clear terms in a case not so long ago) upheld a majority decision by the Court of Appeal that Section 3 of the 1871 Act protected the rules as well as the purposes of a trade union. However, the noble and learned Lord, Lord Denning, took the minority view that Section 3 did not leave unions free to make any rule however unreasonable it was in restraint of trade. And in the subsequent case of Edwards v. Society of Graphical and Allied Trades in 1971, the noble and learned Lord, Lord Denning, and Lord Justice Sachs, again in the Court of Appeal, offered obiter which implied that the protection of Section 3 might be set aside determining that certain purposes in the rule were not proper to a trade union.
The provisions which would be deleted by these two Amendments were added to the general protection in order to remove any uncertainty which may have resulted from this previous case law to which I have referred. While it is arguable that with the repeal of the 1971 Act, and the authority of the judgment of the House of Lords in Faramus, the additional provisions may not be essential, it is the feeling of the Government that it is wise to remove a potential area 1444 of uncertainty and desirable in order that rules which reflect the wishes of a majority of members are not rendered ineffective.
Perhaps I ought to reassure the Committee by saying that members will of course continue to enjoy the protection the courts will give them by reason of the application of the principles of natural justice which have been declared and propounded so clearly since the war, and the words would not necessarily prevent a court from nullifying a rule which it found to be unlawful on some ground other than restraint of trade. So in my submission the words which the noble Earl by these two Amendments is seeking to omit do no more than make explicit what has already been decided authoritatively by the House of Lords.
I do not know that I need to traverse the familiar ground of the protection which the Common Law and the courts give to the individual who may be affected by capricious or arbitrary interference with his right to work either by admission rules, which are capricious or arbitrary, or alternatively by expulsion rules or practice which would be a denial of justice to him. The courts can intervene, and have intervened very readily, if the rules themselves are unlawful or have not been adhered to or if, in applying the rules, the principles of justice have not been observed. The noble and learned Lord, Lord Hailsham, and I have been in a number of cases where these principles have been so determinedly asserted by the courts and they have shown a willingness to adopt a searching approach in regard to possible breaches of rule. I do not want, therefore, to give the impression that the individual trade unionist in a given case is exposed and unprotected. The Common Law provides protection, and, as we shall hear in debate on further Amendments, the Government are looking anxiously, and will do so between now and the next phase of the package on industrial relations, at appellate procedures which might be appropriate and suitable to provide even more protection.
THE EARL OF GOWRIE
I am grateful to the noble and learned Lord for citing the case of Faramus and the case of Edwards v. The Society of Graphical and Allied Trades because I was going to ask him whether he could tell us a little about them. On many occasions 1445 when working in your Lordships' House I have regretted my own lack of legal training At this point, had I been a lawyer no doubt I should have eagerly leapt in to draw attention to the case of Nagle v. Fielding in which a woman who had been refused a licence to train horses applied for a declaration against the stewards of the Jockey Club. That may have made a lively parenthesis to our debate and no doubt the noble Lord, Lord Wigg, would have come into the debate at that point.
Away from the legal side, our problem is that the 1871 Act limits the Common Law rights of individuals in favour of unions and we accept that; but we find that the limitation under Section 3 of the Act applies to "purposes" and not to "rules". The Bill explicitly extends that proteotion to rules—a vital difference. Not all rules are necessarily covered by the word "purposes". Therefore there is in the Bill a distinct extension of the principle and we are worried, as noble Lords will know, about the extension of rights under this Bill. We believe that legislation should as clearly as possible enshrine the principles upon which the whole of society and not just a sectional interest, however important or powerful, is based.
If the Government had altered the Bill along the lines suggested, an important principle would have been strengthened. As I said earlier, when in doubt I think that we should err on the side of the individual. We feel, therefore, that there is an unfortunate wording here and we should like to place that on the Record. However, at this stage we shall not press the Amendment, which I beg leave to withdraw.
§ Amendment, by leave, withdrawn.
§ Clause 2, as amended, agreed to.
§ Clause 3 [Status of employers' associations]:
§ LORD SHEPHERD
I think that my noble friend spoke to this Amendment when he moved Amendment No. 4. I beg to move.
Page 3, line 43, after ("this section") insert ("and section 4 below").—(Lord Shepherd.)
§ On Question, Amendment agreed to.
§ Clause 3, as amended, agreed to.
§ Clause 4 agreed to.1446
§ 4.15 p.m.
§ LORD HAILSHAM OF SAINT MARYLEBONE moved Amendment No. 8:
After Clause 4 insert the following new Clause
(1) Subject to the provisions of this Section every worker shall have the right not to be—
of a trade union or a branch or section of a trade union by way of arbitrary or unreasonable discrimination.
§ The noble and learned Lord said: Such is the state of the papers in this case that I am not sure whether I shall be moving the right new clause or whether, if I do, anybody else will have read what I propose. The one which I am going to move is the one about exclusions and expulsions. As, in fact, the condition of the papers is such that I cannot assume that all noble Lords will have read it, I had better just rise to explain what the new clause is about.
§ Subsection (1) of the proposed new clause gives to every worker the right not to be excluded from membership of a trade union, or a branch or a section of a trade union, and the right not to be expelled from membership of the same 1447 bodies by way of arbitrary or unreasonable discrimination. Subsection (2) of the new clause is a saving clause which is designed to make it clear that this right of non-exclusion or non-expulsion for arbitrary or unreasonable discrimination does not apply to members who are otherwise unsuitable either by reason of a want of qualification or by reason of being a different type of worker. Subsection (3) provides that if a worker wants to assert his right and claims that he has been aggrieved by his exclusion or expulsion he can apply to an industrial tribunal for a declaration that he is entitled to be a member. That is the effective right of reference to an impartial body—in this case the industrial tribunal. Subsection (4) provides the only effective sanction. If he obtains the declaration that he is right and if, in fact the union proves intransigent, he can be given an injunction—"interdict" is a purely Scottish term which means the same thing—and such other relief, including compensation, as the High Court, or in Scotland the Court of Session, may think just and expedient in all the circumstances. Subsection (5) saves the worker's Common Law rights which, as the noble and learned Lord who has now disappeared below the firing step was explaining a moment or two ago, are not entirely negligible although, in our view, they are inadequate.
§ If I may give the history of this new clause in a sentence or two, it was discussed in another place on Report, and the other place divided 301 for the Amendment and 302 against it. It might not be in order for me to inquire whether, of that 302, one was the elusive Mr. Lever whom we read about in the Press because we do not seek to probe into the mysteries of the private procedure of another place; but it was the same day of the week as those episodes which we all read about in the newspaper took place. At any rate, with a Division in another place so closely balanced as 302 to 301, the subject is one which clearly deserves and merits consideration by this House, and it may be that if noble Lords will, as I hope, accept the Amendment and this House agrees to put it in, then another place may welcome a chance to consider the matter afresh, possibly with a different result in the light of your Lordships' opinions.1448
§ With respect, I would regard this as a real test of the Government's good faith in this matter. Nothing was more remarkable during the course of our extremely friendly Second Reading debate upon this hotly-contested subject, than the Government's insistence, and the insistence of the Government's supporters on the Back-Benches opposite, upon the unimpeachable authority of the late Lord Donovan, his person and his Report. If there is one certain fact about the late Lord Donovan's opinion, it is that he would have supported this Amendment, since unless I am mistaken this was one of the matters about which the Donovan Report was unanimous; that given the power of a union over the future chance of the individual worker of earning a living, either by excluding him from membership or, alternatively, by expelling him from membership if he already had it, some recourse to an independent body in the case of arbitrary and unreasonable discrimination ought to be given to the worker to save his livelihood. That was in the Donovan Report and, unless I am very much mistaken, it was in In Place of Strife and I cannot conceive of any good reason for not putting it in this Bill.
§ The excuse which the Government and the noble and learned Lord, who has not yet emerged from the firing step, gave on Second Reading was that something is coming. We were not exactly told what, but we were told that something is coming in the second stage of this so-called "package". I hope the Committee will think that that is not quite good enough. No doubt if noble Lords get a chance to introduce the second stage of their package, they sincerely intend to put in something really good. But we are not told what it is to be and, in the meantime, there seems to be no reason why something should not be there as from the date when this Bill will take effect in law.
§ There does not seem to me to be any reason in merit against our proposal and if there were I—speaking for myself and I expect for my colleagues—should be perfectly willing to put it right. We propose that a worker should not be excluded arbitrarily or unjustly, or discriminated against. We suggest that he should not be expelled arbitrarily and I suppose that very few people in this 1449 House would come to a contrary view. If that be the view of the Committee, I submit that there can be no reason at all why he should not put his case before an independent tribunal.
§ The industrial tribunals are expressly preserved by this Bill as being suitable for, I would have thought, this type of dispute. Therefore, between the two sides of the Committee at least there can be no real challenge as to their impartiality or capacity to handle this type of dispute, and the provision in subsection (4) for the High Court or the Court of Session to implement the decision of the industrial tribunal represents the minimum degree of justice to which I should have thought a worker in that position would be entitled. In those circumstances, I do not think I need paint the lily; good wine needs no bush. I beg to move.
§ 4.25 p.m.
§ LORD HOUGHTON OF SOWERBY
I am wholly in sympathy with the purpose of this clause. Nevertheless, I think it would be unwise for the Committee to write this new clause into the Bill. During the tripartite talks to which I referred in my maiden speech last Tuesday, a number of us strongly pressed the Trades Union Congress to accept a provision of this kind, but they raised numerous difficulties, both of application and enforcement. Moreover, they felt somewhat slighted that we should insist on provisions of this kind applying to trade unions, without at the same time doing something about the disciplinary procedures of some of the professional bodies.
We failed to get agreement then with the T.U.C., and the Secretary of State has stated in another place that the Government have failed to get agreement with the T.U.C. since then. Indeed, the Secretary of State said that the Government had it in mind in the first place to include in the Bill an opportunity for reference to an independent tribunal by a trade union member who felt seriously aggrieved at expulsion or exclusion from membership, but he said that the T.U.C. had objected. I think there comes a time when Parliament has to insist on certain rights being established for the citizen, even though interested parties object. Nevertheless, I think it would 1450 be wise of your Lordships to give the Government an opportunity to pursue this matter further with the T.U.C.
If there were not a further Bill promised to deal with protection of employment, I myself would vote in favour of this new clause. But a second stage in the trade union legislation has been promised, and in another place the Secretary of State asked for an opportunity to discuss the matter with the trade unions with a view to the inclusion in the Statute Law at a later stage of some code of practice. I think it would be a mistake to insist in the meantime on this new clause forming part of this Bill.
Experience has shown how difficult it is to enforce the law on masses of workers, and some of the clauses in the Industrial Relations Act 1971, though theoretically sound, were in practice ineffective. Indeed, a great deal of the trouble that arose under that Act was because of an attempt at enforcement of what on paper seemed to be reasonable provisions in that Act, which shows how important it is to try to legislate by agreement on matters affecting large numbers of workers who have considerable collective power, and upon whom some very reasonable provisions cannot be imposed without considerable good will on their part to make them effective.
Trade union members are not compelled to work with workers whom they feel have not fulfilled their obligations as workers and trade unionists, and we have seen how impossible it is to compel workers to accept inter-union membership of those whom they feel are unsuited for it, or are disqualified from it. I think that this is a matter of wisdom rather than of principle. The principle is clear, and I am sure it is a principle that should be accepted by the trade union movement. As I said earlier, if there is failure to reach agreement, then Parliament has to decide to impose its own will, but we have not reached that stage yet. I believe that in the next phase there will be an opportunity to put this matter right. This is one of the babies that goes out with the bath water with the repeal of the Industrial Relations Act, 1971. But so much that was good in the 1971 Act is unacceptable in the context of that Act, and must be renewed and brought into the law—if it is to be brought 1451 into the law—in a new relationship unconnected with an Act of Parliament which in toto the trade union movement found reprehensible, punitive and unacceptable.
I beg your Lordships not to write this new clause into the Bill. It would be unwise to do so. It will not achieve its purpose. It will deprive the T.U.C. of an opportunity of negotiating further on this matter, and the Government, if they are strong enough to insist that something should be done, will be able to reach agreement with the T.U.C. I respectfully suggest that your Lordships should be wise and should not blindly adhere to a matter of principle. There should be an opportunity for this matter to be dealth with by the process of further discussion and negotiation, rather than precipitating it into the Bill at this stage.
§ 4.30 p.m.
§ LORD SHINWELL
I should have thought that everybody accepts the submission made by my noble friend Lord Houghton, that Parliament is supreme. There can be no question about that. Indeed, the noble and learned Lord, Lord Hailsham of Saint Marylebone, admitted that Parliament was supreme, even by a majority of one. I think it was the late Sir Winston Churchill who said. "A majority of one is enough". We can accept that, not necessarily because it was the view of the late Sir Winston Churchill, but because of the fact that in another place there is a majority of one—and we can leave out the Lever episode and other episodes for further consideration. Nevertheless, I support the submission that we have just heard.
If it is our desire to improve industrial relations, the last thing we ought to do is to leave the trade union movement and the T.U.C. at this stage with a sense of grievance. If the noble and learned Lord, Lord Hailsham, thinks it fit to listen to the submission I am making, I should like to repeat it. It would be a mistake to leave the T.U.C. and the trade union movement with a sense of grievance. So far as I am concerned, I do not object—
§ LORD HAILSHAM OF SAINT MARYLEBONE
I was trying to find out what the noble Lord, Lord Shinwell, said. The noble Lord usually speaks quite plainly, 1452 but on this occasion, for some reason which I cannot explain, what he actually said did not reach our corner of the House.
§ LORD SHINWELL
I am responsible for many misdemeanours, but not for the acoustics of your Lordships' House, for which the blame must be laid elsewhere. I dislike repetition, either from myself or from other Members of your Lordships' House; we are all too familiar with it, and we object. However, on this occasion I repeat that it is undesirable at this stage, in a matter of this kind, to leave the T.U.C. and the trade union movement with a sense of grievance. Obviously, there will be such. Personally, 1 do not object to having a variety of grievances. I recall the debate in another place on a proposition to reform your Lordships' House. I found myself in the position of rejecting every argument for reform. My principal argument was—and this has a bearing on the subject under review—that the Labour Party must have a grievance. If anything goes wrong, blame the House of Lords. So I would not object to a grievance system; it would be very handy, particularly at election time, and for propaganda purposes.
I should like now to address myself to the argument adduced by the noble and learned Lord, Lord Hailsham. The noble and learned Lord said, in effect, that he would not mind accepting what is contained in this proposed legislation, provided the second part of the package could rectify what might be regarded as a grievance. I should have thought that was the last argument he should have adduced, because the noble and learned Lord has said over and over again that there is not a chance for the Labour Party to be returned at the next election, so why should he worry? If the Conservatives are returned, he can put it right. Is that not enough. On the other hand, if by some political misadventure the Labour Party is returned, the assurance has been given that the matter will be rectified. The noble and learned Lord, Lord Hailsham, wins either way. If the Tory Government return to power, they put the matter right; if the Labour Government come in they have promised to put it right, so there you are.
One further point. The noble and learned Lord, Lord Hailsham, referred 1453 to action that is arbitrarily taken against some person who was expelled from a trade union. What is meant by "arbitrarily"? What is the definition? Es it not open to a variety of interpretations It depends on the point of view of what is arbitrary. What is regarded as arbitrary by someone who is adversely affected might differ substantially from a definition acceptable to those who undertake the Act. Therefore, I do not believe that the question of what is arbitrary action has anything at all to do with the case.
I support my noble friend Lord Houghton in asking your Lordships' House not to press this matter. Not that we will trouble about a Division. We understand there is a majority in this House for anything the Conservative Party wants. We have no levens in your Lordships' House; no trouble of that kind is likely to occur. If those on the Opposition Benches want to defeat the Government, they are open to do it; there is nothing to prevent them. They do not have a majority in this Chamber at the present time, but they have a majority in the precincts of the building. Over and over again I have seen scores of Opposition Members, who have not heard a word of the debate, come rushing in, inquiring, "What's it all about?" I have heard them time and time again. Then they vote accordingly, not according to the merits of the question. The noble and learned Lord, Lord Hailsham, talked about dealing with the merits of the question. How seldom do those Members of your Lordships' House who assist in a Division against the Labour Party—whether or not we are on the Opposition or Government side—take note of what has actually been said in the course of the debate! Therefore, I support my noble friend Lord Houghton, and I ask your Lordships not to press this matter. If they insist on ventilating a grievance, then we have just got to accept it.
§ 4.39 p.m.
§ LORD FEATHER
May I support what has been said by my noble friends Lord Houghton and Lord Shinwell. May I give further substance to the appeal to the noble and learned Lord, Lord Hailsham of Saint Marylebone, about this particular clause. I would have gone on to Clause 9(2) using similar words, but I understand that is out of order at this stage. I hope that what I am saying will 1454 be borne in mind in relation to Amendment No. 9. I should like this new clause much better if it said,Subject to the provisions of this section every worker is expected to be a member of a trade union".and then went on to sayand shall have the right not to be excluded from membership or expelled from membership".I want to point out that in the rules of the overwhelming majority of unions it is explicitely stated that people have the right of appeal in respect of these matters; even in respect of being excluded from membership. When an application is made to a branch and the branch rejects the application, the workman is entitled, notwithstanding that he is not a member, to proceed by way of the rules and to ask for the matter to be examined by the appeals committee of the union. In general, it is not the function of trade unions to-day to exclude people from becoming members or to expel them from membership, except for non-implementation of the rules in particular circumstances. It is the intention of unions to gain members. Therefore, this clause is a little bit tautological in its attitude, if I may say so.
On the other hand, I accept the general principle, in that here set out in Amendment No. 8 is what, in practice, is done by unions to ensure natural justice. I query this reference to "arbitrary or unreasonable" discrimination, because most union executive committees, and certainly most branch committees, do not accept that when they exclude someone from membership or expel them from membership they are doing anything arbitrary or unreasonable. It is a conflict between what is reasonable and unreasonable, perhaps as between the branch committee and the person under discipline.
As I see it, there are four stages here. First of all, in the natural sequence of events, the member will have a right of appeal within the union rules, within the union machinery. In many cases, in order to try to establish a sense of fairness, which is obvious, unions have put the appeals machinery outside the union membership itself; they have transferred that responsibility for listening to appeals to the T.U.C. or to people they have nominated. The Electrical Trades Union, 1455 under its new title, has afforded this responsibility to the T.U.C. to nominate people who are not members of the E.T.U. at all. There is a right of appeal in the Musician's Union ultimately to people who are not members of that union, but they are, of course, of the trade union movement in the wider sense. I could mention several unions with similar provisions.
Here, as I see it, when a person has gone through the appeals machinery of his own union, which can be extensive, he can then proceed to an industrial tribunal, if that is his opinion; that is, the opinion of the member and not of the union. There is then provision for him to go to the High Court, if he is still aggrieved, and if he does not get judgment in his favour he will still be aggrieved. Then he can go further to make claims under Common Law. That seems to me to be a procedure which is extensive. I am not querying the sense of justice which is there, but it seems a little heavy for shop stewards, or people involved in these matters, to understand.
I think a much simpler sort of proposition could be put down—and undoubtedly will be put down—in the consideration and advice given by the T.U.C. on these matters. As a matter of fact, prior to the Industrial Relations Act 1971, the T.U.C. were engaged in precisely this kind of operation, to ensure not only that there was fairness—because that was generally applicable—but that the fairness was seen by everyone, devising methods whereby members could appeal and whereby people who were excluded from membership could appeal. Those were, in general, people who were appealing to be allowed to be members of a union, where the closed shop was operative as a pre-entry arrangement.
I should like to support the noble Lords, Lord Houghton and Lord Shin-well, in asking the noble and learned Lord, Lord Hailsham, to take this Amend"ment back and not to press it at this stage. I do not think there is any need to press it. There will be a later stage and the principles, if not the exact wording, can be looked at by the unions. There is nothing in this Amendment which departs from the general principles of fairness which the trade unions themselves want to enforce.
§ 4.45 p.m.
§ LORD ROCHESTER
I can well understand the difference of opinion to which this Amendment gives rise. As a Liberal, I suppose I should be utterly opposed to the whole principle of a closed shop. I do not find it as easy as that, because for a number of years I was responsible for negotiating with trade unions on behalf of a large industrial organisation, and I saw some of the advantages of the closed shop, or, at any rate in appropriate cases, 100 per cent. union membership. But, as I see it, we are now in a different situation, because for the first time under this Bill the law is coming into play and the closed shop is to have the sanction of the law.
In these circumstances, it seems to me that common justice demands that the law should also provide for some machinery under which union members who are expelled, or people who are excluded from a union, should have the right to make an appeal against a union's decision. In my own experience on this question of union membership, I can recall cases affecting both general worker unions and craft unions, and indeed even including supervisors, in which the absence of any machinery for appeals within a union would have penalised unfairly the person concerned, and would have made much more difficult the task of management in intervening with the union on that person's behalf.
It will be said—indeed, as I understood the noble Lord, Lord Feather, he has said—that all this simply goes to show that within the trade union movement there is appeals machinery. I know that there often is. The difference now is that the closed shop is to have legal backing, and it therefore seems to me that there should be some legally enforceable and independent machinery by which in all cases there is this opportunity to appeal against a union's decision. As the noble Lord, Lord Houghton, said, it is of course possible, whatever the state of the law, that people will decide to take, or will threaten to take, industrial action on this issue of the closed shop. I do not accept that as an argument against this Amendment. In my experience, there are a number of reasons why people decide to take industrial action or, in the last resort, to withdraw their labour. One of the things they take into account is 1457 what might be called the general climate of opinion on the particular question. My view of is that the state of law at any given time still has an effect on the action which people take in that way.
I should like to mention a body for which I have a good deal of respect, and I know Members on all sides of your Lordships' House have a similar respect for it; that is, the Industrial Society. That is mainly because it is run by a council which consists not only of employer representatives but also of union representatives. The Industrial Society decided to set up a working party to consider the implications of this Bill, and that consisted of employer, trade union and independent members. It seems to me significant that they concluded that there should be an amendment to the Bill on the lines that we are now discussing.
From what I first said, I hope it will be understood that I understand, and I have some sympathy for, the feelings of trade unionists on this subject, but it seems to me that now the law is being brought into play we should not reject this Amendment. We should not leave it to another time on the grounds that discussions may be proceeding between the Government and the unions; on the grounds that an employee protection Bill is now coming into play; on the grounds that it may cause embarrassment to the T.U.C., and so on. On the contrary, it seems to me that we should amend the Bill in this way, and thus preserve a sense of justice for the individual in what I acknowledge is a very difficult area. For these reasons I should like to support the Amendment.
§ LORD SLATER
In view of the noble Lord's advanced knowledge regarding the trade unions in this country, and the amount of work and forms of association that he had with them in the course of negotiations from the position that he held on the side of industry, would he continue to impress on noble Lords, or express his opinion, in regard to company trade unions—trade unions that have been organised and set up by companies within this country—and also not forgetting the B.M.A.?
§ LORD ROCHESTER
I am not sure that I altogether follow the noble Lord's point. As I see it, we are dealing now 1458 not with companies but with trade unions. This is the Trade Union and Labour Relations Bill, and it was with that in mind that I took the liberty of saying what I did.
§ 4.52 p.m.
§ LORD ALPORT
The noble Lord, Lord Shinwell, said that there were a large number of occasions on which noble Lords on this side of the House are called up from the recesses of the Palace of Westminster to vote on something, the arguments about which they have never heard and the merits of which they do not fully understand. The noble Lord, his remarks, has invited quite a different thing; he has invited those of us who are here, after having listened to the arguments, to reject this Amendment not on its merits (having heard all the merits explained to us by my noble and learned friend), but as a matter of expediency, along the same lines as the argument of the noble Lord, Lord Houghton of Sowerby.
Of all the Members of this House, although I have no personal experience of the affairs of trade unions, I recognise as well as anybody else the vital importance of the Trades Union Congress and the trade union movement, and the importance of good industrial relations. However, I wonder whether, on this occasion, the advice that has been given to us on behalf of the trade unions by the noble Lords who have spoken opposite is, in fact, in the interests of the trade union movement. The trade union movement is no longer a struggling movement in this country attempting to establish itself in positions of power and influence in order to carry out its duties and responsibilities to its members; we acknowledge that it is now the most powerful organisation outside Parliament. Indeed, so far as two Governments are concerned, the trade union movement, the T.U.C., has had its way against the policies of the Government of the day.
My noble and learned friend Lord Hailsham has mentioned that the provision that is represented in this Amendment was reflected in In Place of Strife. It was also, if I am right in understanding him, a protection given in the last Industrial Relations Bill. We are now advised that this is something that we, as Parliament, should not insert in this Bill 1459 because it is something still to be negotiated with the trade unions. There is, however, no guarantee that the T.U.C., or the weight of opinion within the trade union movement, will necessarily accept this provision, for reasons which the noble Lord, Lord Houghton, and, I think, the noble Lord, Lord Shinwell, would agree were perhaps not reasonable or rational in the circumstances of this Bill, but which are based upon long-established prejudices, particularly in the context, as it was originally, of the 1971 Act. However, surely it is in the interests of the trade union movement as a whole—this powerful movement which can coerce, and has coerced, Governments in this country—that non-trade union public opinion should see that justice is done.
If the noble Lord, Lord Houghton, agrees that this is something that should be in the Bill and which, if it is left out of the Bill as a result of the pressure—as indeed it would be—of trade union influence on Parliament both in the other place and in this place, then surely a great many people (non-trade unionists, and perhaps trade unionists as well), will feel that the influence which the trade unions are able to bring to bear upon the legislature of this country is such that it can prevent reasonable measures being taken in the interest of individual people, just as it can ensure that important improvements are made in the general standards of living and employment of its members.
I would suggest to the House, and to noble Lords opposite who have long experience of the trade union movement, that they are not doing a service to that movement at the present time by allowing it to be treated by Parliament as though it were still a struggling movement, endeavouring simply to improve the conditions of life of its members both as individual unions and the movement as a whole. It is, in fact, one of the great power centres in this country, which must be in a position to ensure that the action which it takes, and the policies it puts forward, enable not only justice to be done but justice to be seen to be done, as I understand is the purpose of my noble and learned friend's Amendment.
§ LORD DOUGLASS OF CLEVELAND
I have listened to the noble Lord, Lord 1460 Alport, with the greatest interest. When he talks about the trade unions coercing Governments, my mind goes back over the past half centry when it has been the accusation of the trade union movement that it is the financiers who have influenced Governments. What is happening to-day is that the influence is swinging away. It may, on occasion, swing too far, I would not dispute that. My noble friend Lord Houghton made it quite clear that, at the end of the day. Parliament must make the decisions.
I come back to the noble and learned Lord, Lord Hailsham of Saint Mary-lebone, because I remember all the arguments that he put forward when the Industrial Relations Bill was going through, and I pay him the tribute of being absolutely sincere in all the arguments he put forward, much as I disagreed with him on many occasions, and wrong as he proved to be. Let me give you one instance. When they inserted the cooling-off period into the Industrial Relations Bill it had my support. I had seen this work in different countries, and had seen two-thirds of the disputes settled with the application of the cooling-off period in the United States of America. I wanted it in: I still want it in. However, I do not see how you can get it in now because the first thing that the Conservative Government did was to apply that cooling-off period legislation in such a manner that it could not possibly work. What they have not taken into account is inertia, and what both the trade union leaders and Parliament are fighting at the moment is the inertia of workers who are determined rot to accept something. We have to find the method of overcoming that. When you had the cooling-off period their inertia overcame that.
I come back to the Industrial Disputes Tribunals to which matters of this kind would be referred. I have sat on those since the Act came into force against the advice of some of my own people, because I saw how effective they could be and how they could give effect to the general desire of this House to look after the rights of the individual, which I considered to be paramount on all occasions. The individual has these rights. They come within community rights as a matter of course, because people could not live together if they were just to live as 1461 anarchists. There have to be rules about this, but they have their individual rights, and those are what I want to see preserved.
When it comes to dealing with redundancy, with unfair dismissal, these courts have quietly gone ahead doing an excellent job. I pay tribute to them. There is usually a lawyer at the head—I am commending it, not criticising it on this occasion—who is so sympathetic to the applicants who understand nothing about the law, that it is a pleasure to see them recover the confidence which they have often lost when they sit before the court and simply state the case and allow the lawyer to tell them how the law will affect their position. Of course, they have a right to have a lawyer with them if they wish. Some have trade union officials with them. When they do, the industrial tribunal operates not only effectively but satisfactorily, even to the losers. When we have dealt with cases of unfair dismissal employers have gone out sadly disillusioned.
The reason I mention the industrial courts is because I am afraid that if we are not careful they will go the same way as the cooling-off period. Before you get them working properly, resentment of them being included in this Act, now quite unnecessarily, will destroy the effect of those courts. That is what I want to avoid.
I wish to draw the attention of the Committee to the annual conferences of trade unions which have taken place over the past few months. I will not identify them; that would be unfair, but sometimes on a very close vote decisions have been made to accept the social contract, its penalties and its reward. The great difficulty inside trade unions is not that you have annual conferences, where these matters are accepted; it is that you have the unofficial movement inside the trade union movement which causes disruption around the country. What we have to do is to find the method to deal with that situation.
People who feel aggrieved still have the right under the Common Law to have their grievances put right. I want to build something in industrial relations, so far as Parliament is concerned, that will give optimism for the next decade, not something that will give political 1462 victory for the next few months. It may well be that when the Party of the noble and learned Lord, Lord Hailsham, return to power after the next Election, as he would hope, it may well have destroyed something in this Act which it would rather not have destroyed because it is a foundation on which something can be built.
It is not something that will put right overnight all the wrongs of the trades unions, employers and industrial relations world. It is the first faltering step that has been accepted by the Trades Union Congress and not disapproved by the C.B.I., although it has its own opinion on that point. Let us get it on the Statute Book. If I may be bold enough, I would say: get the General Election out of the way and return to an Industrial Relations Act that will not be destroyed by thoughtless action simply for the sake of political prestige.
§ LORD PARGITER
I am concerned with the technicalities rather more than the general principles. The Amendment says:Subject to the provision of this Section every worker shall have the right not to be—(a) excluded from membership …The first question concerns the definition of a worker. Is he a person who is in work or one who might be out of work? I want that to be clear. If he is a person not within work, so far as my union is concerned—the Union of Engineering Workers, of which I have been a member for 57 years—unless he is in work he cannot be proposed for membership. Equally he has to find someone or someone has to approach him to ask him whether he wishes to join the union. If so, he has to be duly proposed. This goes through the procedure of the branch and a person who proposes another person to be a member of the union has to state that he believes him to be a fit and proper person to be a member of that union. How does the clause affect that position?
How will the worker who is not in work, but who wants to join my union, be able to do that? Can he claim he has been excluded from membership because there was no one to propose him? If he happens to be in work and none of his fellow workers are prepared to propose him, what happens then? Is he allowed to say that he has been 1463 improperly excluded from membership? Or is a person obliged to propose him for membership? What sort of compulsion is that on the individual who does not happen to be in favour of proposing another person to be a member of the union because he does not want him in and does not think he would be a good member?
This is the sort of problem that can easily arise from the clause. The question of expulsion is entirely different. We are concerned with excluding a worker from membership. First, if he is not in work, is he a worker? If he is not in work he cannot be proposed for membership of my union. If he is in work and no one is prepared to propose him in accordance with rules of the union, have the rules of the union to be altered to say that the union or some person must be compelled to nominate this person to be a member of the union? Is that the intention? If it is, I am sure that my union will not accept it for one moment.
§ LORD REDCLIFFE-MAUD
I wonder whether a Cross-Bencher might make a short intervention; one who is a recent Member of this House and has had no first-hand dealings with the trade union movement from either side? In listening to the debate, the noble and learned Lord, Lord Hailsham of Saint Marylebone, seemed to me to make an unanswerable case within the limits of his speech for doing what the amendment suggests. The noble Lord, Lord Alport, touched on the point which was in my own mind in eloquently making the case that the world outside the trade union movement would perhaps be much encouraged, as well as many members in the trade union movement, if there was this clear reassertion of the right and duty of Parliament if it failed to get the agreement of a large section of the population to do what Parliament thought right.
I must share with your Lordships my feeling that having heard Opposition speeches which were in themselves convincing, I cannot but admit that it seems to me it would be a great mistake if we did not listen to the argument that has been eloquently given by the noble Lord, Lord Houghton, and the noble Lord who spoke last but one. I think the question before the Committee is: do we do better by the country if we have a Division 1464 and win the Amendment, which would be in one sense a triumph for principle, or would we be doing something that was not in the public interest? My own view is that the assurance which the Government have almost given us, and which I hope we shall have before the debate on this Amendment finishes, shows that they accept the principle of the Amendment. They do not think it should be in the Bill but it will be their earnest endeavour to press on with the negotiations and get the agreement of the trade union movement—not only the T.U.C. but individual unions—so that if it lies in their power they can complement what is done in this Bill by something in the next complementary Bill. As a Cross-Bencher, that seems to me the way I should like the Committee to go. I greatly hope that in the end we shall not be forced to a Division.
§ 5.9 p.m.
§ LORD SHEPHERD
If I may, I will intervene now and say a few words on behalf of the Government. What I have to say can be relatively limited in the light of the speeches made with far greater knowledge than mine by the noble Lord, Lord Houghton of Sowerby, who was chairman of the liaison committee between the Labour Party while in Opposition and the Trades Union Congress, and also the speech of the noble Lord, Lord Feather, who was, as we ali know, recently head of the T.U.C. To a certain extent—this is no way critical of noble Lords opposite—I very much regret that, if there is to be a Division, there were not more present to hear the case that was made by my noble friend Lord Feather.
To the noble Lord, Lord Alport, in regard to his reference to trade union influence over this Government, and in relation to the view that has just been expressed by the noble Lord, Lord Redcliffe-Maud, I would say that I have always regarded our society as being based upon three pillars: the Government and the organised sections of industry—the T.U.C., on the one hand, and the C.B.I., on the other. Unless those three pillars stand together, the whole edifice of our economic society, and all that goes with it, just will not stand up. I am in no way seeking to be partisan or critical, but I think that no one will deny that over the last three years things 1465 have gone disastrously wrong in the relationship of Government with one of the other two pillars. When this Government came into Office we sought to put that situation right. Whether we are right or wrong, only events will prove; but we take the view that in the new situation we should seek to consult and to seek a consensus before we embark upon legislation. That does not in any way detract from the soverignty of Parliament. Parliament can pass laws, but unless those laws are enforceable and acceptable they are of less value than the paper upon which they are written.
At the end of the day, I think that what is between the noble and learned Lord, Lord Hailsham, and the noble Lord, Lord Houghton, and the Government is really a question of timing. I looked through my brief when the noble and learned Lord, Lord Hailsham, was speaking about Donovan. Of course, Donovan stressed the importance of provisions of this kind, but he did so within the context of a closed shop and its consequences. The Amendment that is now before us, of course, deals with the whole situation, and not necessarily with the closed shop. But—I come to the question of timing—is there a pressing need? The Donovan Commission thought it unlikely that abuse of power by trade unions over individuals was widespread, and I have to say this: that nothing has emerged since March, 1972, when the tribunals were first empowered to consider complaints against unions, that has shown this to be untrue. Over this period, during which some 20,000 complaints of unfair dismissal have been brought against employers, the number of complaints against unions by members, former members or applicants has been of the order of only some 200.
Until the end of 1973, 14,500 complaints of unfair dismissal had been dealt with, and, of these, over 5,600, or nearly 40 per cent., were successful. Over the same period, out of some 190 complaints against unions dealt with by the industrial tribunals, only some 30, or about 15 per cent., have been upheld. These are the statistics of the Department; and I would have thought that they would indicate that the unions are operating their rules in a statesmanlike way. From those figures—and bearing in mind 1466 what I said earlier, that one is seeking co-operation and consent—I would have thought that there was an indication that time could be given to the Government; that events are not so pressing that an Amendment of this nature is immediately required.
In reply to the noble Lord, Lord Redcliffe-Maud, who asked, "What is the Government's position?" perhaps I could read to him what my right honourable friend the Secretary of State said in another place on May 7, when speaking of this matter. He said:The T.U.C. has taken steps to try to ensure that proper procedures are available to trade unionists and people generally who may be affected. It has taken elaborate steps to try to ensure that rules, provisions and protections shall prevail throughout the trade union movement. This is not necessarily a satisfactory solution, and I am not saying that it is. There will still have to be discussions in preparation for dealing with this matter in the subsequent Bill, along with picketing and other matters which I have mentioned."—(OFFICIAL REPORT, Commons, 7/5/74, col. 231.)My honourable friend the Minister of State went some way further on May 23, when he said that we were seeking to know whether it was possible to include certain provisions in this Bill, but that he recognised—and I hope the Committee will appreciate this—that we are confronted with very considerable difficulties. Those difficulties still exist. It is not only a question of drafting: it is a question of getting a general agreement.
It is the Government's intention to see that some provisions of this nature, if they can be agreed—and I believe they can be obtained—shall be included in the Employment Protection Bill. As I said on Second Reading and as I said earlier, this is the first stage of legislation in the trade union field. I hope that the Committee will accept that what is between us is not a question of principle or fact: it is a question of timing. I hope that the Committee will learn many of the lessons of the last three years and will accept that what we should do; if we are to have good law—law that can be implemented and which will be worked in a constructive sense by all those involved—is to ensure that it should be law that is based upon consent and agreement. It may take time, but at the end it is worth it.
It seems that there are three major reasons why this Amendment cannot be accepted by the Government, although it is quite clear from the speeches that have come from the Government Benches that they accept the fundamental Tightness of the proposition contained in the Amendment before the Committee. It is said that it is an inopportune time to press for this Amendment to be included in legislation, and that it is necessary for the Government to govern on the basis of consensus. Of course it is necessary to govern on the basis of consultation, but consultation and consensus are not the same thing. To equate the two is, I think, exceedingly misleading. Consultation, Yes; but consensus only if agreement is on those things which the Government accept as being right, not those things which are forced upon them.
We have said before, and we said in the Second Reading debate, that it is extremely unsatisfactory that we are being asked to debate these most important matters in stages; that we do not know what is coming in subsequent legislation. All we can do, however, is to debate what is before the Committee, because this is indeed all that we have. It is at the heart of the Bill which is before us—and there can be no question about this—that it greatly strengthens the power of the trade union movement. If it adds great power to the trade union movement, then it behoves Parliament to ensure that minority groups are protected. I am appalled when I hear the noble Lord the Leader of the House say that offences against individuals do not matter because there are not very many of them. This was the implication.
§ LORD SHEPHERD
I am sure the noble Baroness wishes to be fair. She has put words into my mouth that I never uttered. What I said was: is there such a pressure of time that it would be right to include this Amendment and deny the Government the opportunity to seek this consensus through consultation?
§ BARONESS SEEAR
The point of the statement was that there had not been very many cases taken and therefore the implication was that there was no need for action now. Our point is that in this legislation we are greatly strengthening the power of the trade unions, and this is all the more reason why we should take 1468 strong action to protect the minority adversely affected by this increase in power. There is no question about it but that as a result of the legislation now before us certain individuals can be, and no doubt will be in due course, deprived of their livelihood or forced to take jobs contrary to their own will, and jobs they do not wish to take. The noble Lord shakes his head but that is the nature of the legislation before us. This Amendment seeks to safeguard the small number of people likely to be affected—and I know that it will be a small number. I accept that the trade unions in the main are taking proper steps to see the position of the minority protected, but there will be a residue of people who need the kind of protection that has been suggested.
I know that the noble Lord, Lord Feather has said that the trade unions make provision for appeal within their own rules. Of course they do! This is right and proper; and without doubt more unions will do so and will improve their procedures. But that is not sufficient. That is an appeal inside the trade union movement and is not an appeal to an independent body. It is of the essence of appeals that, at the end of the day, they must be taken away from interested parties and put before independent bodies. This is why we urge that there should be appeals not just through trade union machinery but to outside bodies. Only in this way can that minority of people who need protection be given it.
§ LORD HAILSHAM OF SAINT MARYLEBONE
I will endeavour to answer the debate because I think it has been an important one and because I do not think that the Committee would wish to part with this Amendment without having considered the arguments which have been given. Let us be quite clear about what we are discussing. We are discussing the right of an individual not to be excluded from a trade union arbitrarily or unjustly by way of discrimination, or expelled from a union arbitrarily or unjustly by way of discrimination. The Government ask for time. They have had a lot of time. The Donovan Committee was unanimous—and that was nearly ten years ago—that this right ought to be given. I know the point that the noble Lord the Leader of the House was making about it being done in the context of the closed shop.
1469 I am quite sure that that is a most important context; but it is not the only context. The noble and learned Lord the Lord Chancellor said on the previous Amendment that he had known cases in his practice at the Bar in which there had been unjust discrimination even under Common Law. So have I. They have not all been closed shop cases. They have been very unjust in many cases; and there are not quite so few of them as I think the noble Lord the Leader of the House seems to think.
When a person is excluded from a union or, still worse, expelled he does not only lose his means of livelihood if it is a closed shop. He may find he may lose it independently of the shop being closed. Moreover, if he is expelled he loses all his paid-up contributions and accumulated rights as a member. That may include the right to a provident fund to which he may have contributed for forty years. We are not just talking about the closed shop. As I have said, the Donovan Committee was unanimously in favour of it and so was In Place of Strife—and that was five or six years ago! The Government have had plenty of time. The noble Lord, Lord Houghton, said that he was chairman of the liaison committee between the Labour Party and the Trades Union Congress and he apparently hammered it hard because he was in favour of the principle of this clause. But he did not get there because they resisted him. There has been plenty of time. It is not as if people have not been trying to persuade them.
The next point is that the noble Lord does not want to leave the trade union movement with a grievance. Neither do I. But what is the grievance? We have not been told—except that they are being asked to do something that they are doing their best not to have thrust upon them. That is not a grievance; that is dragging your feet. The noble Lord, Lord Houghton, is a very eloquent and persuasive speaker; but the best argument that he could put forward was that the trade unions were very much slighted that professional bodies, too, were not brought in. I have no objection in principle also to bringing them in; except that it is outside the Long Title of the Bill. But I must point out to the noble Lord, Lord Houghton, and to the trade union move- 1470 ment if they care to listen to what I have to say, that the position of the professional bodies is quite different. The professional bodies by and large—except for some of the very oldest ones, including the Church which is among the oldest—have special procedures which have to be approved by the Privy Council, that is, by the Government. That puts them on a quite different footing from that of the trade unions, which do not need approval at the moment from anybody. It means that a Prelate must go to the Privy Council—although a Measure has now been passed giving some other kind of tribunal. They have an appeal to the Privy Council as well as having a statutory body. Solicitors have an appeal from the disciplinary body to the courts. I cannot off hand give a complete list; but barristers can certainly go to the Judges. That puts them in a quite different position from the trade unions.
All that we are suggesting is that the trade union member, too, shall have an appeal to the courts; and because it is a relatively expensive business to go to the courts we thought it better to go to the industrial tribunal. I do not think that that is a bad thing in cases of this kind. They are both informal bodies and I think they are suitable bodies. There has not been much criticism of that. The noble Lord, Lord Shinwell, said that one is enough. I suppose that one is enough. It is a majority in Parliament—even if that one was having dinner in Belgrave Square when the Division was called. One is enough! But we cannot impose our will on Parliament. All that we can do is to write an Amendment into the Bill which we think reasonable, and if the House of Commons does not agree with it they will send it back. We have no right to impose our will on Parliament; but when a Division is called and the result is as close as 302 to 301 it is reasonable to ask the House of Commons to think again in the light of the arguments deployed in this debate. This is what this House is for. I should think that this is a supreme example of the kind of thing which it is for.
What really worried me about the speech of the noble Lord, Lord Feather, is that he could have made it at any time in the last 150 years—even against 1471 Common Law rights. He does not seem to be happy about doing it. He is like St. Augustine who prayed to the Good Lord to make him chaste—but, he added, "Not now!" I am afraid that Lord Feather's prayer is of the same order as that of the Father of the Western Church. Of course it is true that the T.U.C. is doing its best to put its house in order, and also that the majority of the branches of the majority of the unions act decently and not discriminately. But this can be said about any laws that you are trying to pass. Laws are not aimed at people who behave decently but at the minority who do not.
It would be a very bold man, with a trade union with millions of members and branches all over the country, who would say that all its branches behaved decently. I think that it is very unlikely. Also, not every union is affiliated to the T.U.C. This Bill, when enacted, will apply to every kind of union, affiliated and not affiliated, trying to put its house in order and not trying to put its house in order. Communist-dominated and not Communist-dominated. So I do not think that that was a very good reason, nor was it a very good reason to say that the clause is complicated; it is not. The saving of the Common Law procedure in subsection (5) refers to a different set of rights altogether. It is not additional to the rights given in the sense that one has to do this as well as the other matters under this Clause.
I was glad off the support of the Liberal Party, both from the noble Lord, Lord Rochester, and from the noble Baroness, Lady Seear, as I was of the support of my noble friend Lord Alport. The noble Lord, Lord Douglass, I think cast his net a little wide. I do not know that this is on the same footing as the cooling-off period, for which I think I had probably less enthusiasm than he displayed, at any rate this afternoon, although I do not remember that during the debates in 1971 he was quite so enthusiastic as he sounded this afternoon. At any rate, I think that the point was a slightly different one.
§ LORD HAILSHAM OF SAINT MARYLEBONE
I should accept the noble Lord's assurance whatever it was, because we have known each other for a long time and I am quite prepared to believe that my memory is at fault in this respect and, indeed, I should welcome it if it were. However, I think that that is rather a long way from the point which we were discussing. Nor do I think that the social contract has much good to say about this. The noble Lord, Lord Pargiter, asked me what a "worker" meant. That is in the definition clause in the Bill and, presumably, unless we put a special definition clause into this clause, the expression "worker" will be covered by that definition clause. He asked me a hypothetical question as to whether anyone could be compelled under the clause to propose someone as a fit and proper person if he did not think so. The answer to that is. No.
§ LORD PARGITER
Could the noble and learned Lord carry that point a little further? If no one in a particular factory is prepared to propose a person as a fit and proper person, would that be regarded as discrimination?
§ LORD HAILSHAM OF SAINT MARYLEBONE
I should have thought not; but 1 think that instant law is usually bad law, and I am very sales-resistant to giving legal opinions when I am on my feet. I usually like to do it at my desk in my library. However, I should have thought that the answer was, clearly not.
I was not able to follow with enthusiasm the speech of the noble Lord, Lord Redcliffe-Maud, because he seemed to think that, just because those concerned do not want something to happen, they are more likely to want it to happen if the Government wait another six months with negotiations the nature of which we do not know resulting in a legislative proposal which they have not yet divulged to us. They have not, I should have thought, produced a single argument that this Amendment is bad or unworkable. If it can be improved at the next stage of the package, I should be delighted; but I see no argument against it and, in those circumstances, I do not think I should be justified in withdrawing it. I therefore adhere to my proposition and beg to move.
§ 5.36 p.m.
§ On Question, Whether the said Amendment (No. 8) shall be agreed to?
§ Resolved in the affirmative, and Amendment agreed to accordingly.1474
§ Their Lordships divided: contents, 96: Not-contents, 67.1473
|Aberdare, L.||Gowrie, E.||Rankeillour, L.|
|Allerton, L.||Grenfell, L.||Reigate, L.|
|Alport, L.||Hailes, L.||Rochester, L.|
|Amherst, E.||Hailsham of Saint Marylebone, L.||Ruthven of Freeland, Ly.|
|Amherst of Hackney, L.||St. Aldwyn, E. [Teller.]|
|Annan, L.||Hankey, L.||St. Davids, V.|
|Auckland, L.||Hanworth, V.||Salisbury, L.Bp.|
|Barnby, L.||Hawke, L.||Salisbury, M.|
|Berkeley, B.||Henley, L.||Sand ford, L.|
|Byers, L.||Hood, V.||Sandys, L.|
|Carrington, L.||Hornsby-Smith, B.||Savile, L.|
|Cathcart, E.||Killearn, L.||Seear, B.|
|Colville of Culross, V.||Kilmany, L.||Selkirk, E.|
|Cork and Orrery, E.||Kilmarnock, L.||Sempill, Ly.|
|Cowley, E.||Lauderdale, E.||Shannon, E.|
|Crathorne, L.||Lloyd of Kilgerran, L.||Sharples, B.|
|Croft, L.||London, L.Bp.||Somers, L.|
|Daventry, V.||Long, V.||Stamp, L.|
|de Clifford, L.||Lyell, L.||Strathclyde, L.|
|Denham, L. [Teller.]||Macleod of Borve, B.||Strathmore and Kinghorne, E.|
|Derwent, L.||Mancroft, L.||Strathspey, L.|
|Drumalbyn, L.||Margadale, L.||Terrington, L.|
|Dundee, E.||Massereene and Ferrard, V.||Trefgarne, L.|
|Ebbisham, L.||Merrivale, L.||Vivian, L.|
|Eccles, V.||Monck, V.||Wade, L.|
|Emmet of Amberley, B.||Mountevans, L.||Ward of Witley, V.|
|Exeter, M.||Mowbray and Stourton, L.||Wigoder, L.|
|Fraser of Lonsdale, L.||Northchurch, B.||Windlesham, L.|
|Gainford, L.||Oakshott, L.||Wise, L.|
|Geoffrey-Lloyd, L.||Orr-Ewing, L.||Wolverfon, L.|
|Gladwyn, L.||Perth, E.||Young, B.|
|Glasgow, E.||Platt, L.||Younger of Leckie, V.|
|Goschen, V.||Porritt, L.|
|Arwyn, L.||Gaitskell, B.||Pannell, L.|
|Bacon, B.||Gardiner, L.||Pargiter, L.|
|Balogh, L.||Garnsworthy, L.||Peddie, L.|
|Bernstein, L.||Gore-Booth, L.||Phillips, B.|
|Beswick, L.||Goronwy-Roberts, L.||Rathcreedan, L.|
|Birk, B.||Greenwood of Rossendale, L.||Redcliffe-Maud, L.|
|Blyton, L.||Gordon-Walker, L.||Royle, L.|
|Brayley, L.||Hale, L.||Rusholme, L.|
|Brockway, L.||Hall, V.||Sainsbury, L.|
|Buckinghamshire, E.||Harris of Greenwich, L.||Segal, L.|
|Burton of Coventry, B.||Henderson, L.||Serota, B.|
|Castle, L.||Houghton of Sowerby, L.||Shepherd, L.(L. Privy Seal)|
|Champion, L.||Hoy, L.||Shinwell, L.|
|Clwyd, L.||Jacques, L.||Slater, L.|
|Collison, L.||Leatherland, L.||Snow, L.|
|Crook, L.||Lee of Newton, L.||Stow Hill, L.|
|Donaldson of Kingsbridge, L.||Llewelyn-Davies of Hastoe B.[Teller.]||Strabolgi, L.[Teller.]|
|Douglas of Barloch, L.||Summerskill, B.|
|Douglass of Cleveland, L.||Lloyd of Hampstead, L.||Taylor of Mansfield, L.|
|Delacourt-Smith, L||Lovell Davies, L.||Wells-Pestell, L.|
|Elwyn-Jones, L. (L. Chancellor.)||McLeavy, L.||Wootton of Abinger, B.|
|Feather, L.||Maelor, L.||Wynne-Jones, L.|
|Fiske, L.||Melchett, L.|
§ 5.44 p.m.
LORD HAILSHAM OF SAINT MARYLEBONE moved Amendment No. 9:
After Clause 4, insert the following new clause:
§ The noble and learned Lord said: This is Amendment No. 9, the doctor's favourite so I hope I shall be successful. Like the last one it is a great test for the Government to face. I am glad to see that the noble and learned Lord has now resumed his place on the firing steps, so we hope to hear a salvo very soon.
§ The purpose of this Amendment is to ensure a number of matters upon which the unions should make some provision in their rules. When I say "the unions" I include in that wide phrase employers' associations, because this is a matter in which very likely, mutatis mutandis, what is sauce for the goose is sauce for the gander. I say that the Amendment is a test of the Government's good faith for this reason: the noble and learned Lord on Second Reading was at pains to say—and he said it both persuasively and eloquently—that his object was to get through a repeal of the 1971 Act, as a sort of emergency measure, so that everything after that would go smoothly and happily and all would be as merry as the proverbial marriage bell.
§ He made one little mistake about that. This is repealing not the 1971 Act, but 1477 the 1871 Act. Ever since 1871 there have been a number of minimum requirements for trade union rules and the noble and learned Lord really cannot get away in this House with saying, as he attempted to do on Second Reading—or perhaps it was the noble Lord the Leader of the House who erred in this respect, though I am sure they are of one mind sitting together in almost connubial bliss on the Government Front Bench—that it would be a gross interference with the rights of trade unions to make these provisions. If it be a gross interference it is a gross interference which has been the law, until now, for 103 years, so it is one which they have borne with comparative equanimity. I cannot pretend that we are simply putting back the 1871 Act, but if that is what the Government prefer we might consider it at a later stage of the Bill. We thought, and in this respect we agreed with the Government, that some of the 1871 language could be brought up to date.
Moreover, we on this side did not wish to disregard the findings of the Donovan Report on this matter, as the Government appeal to him so confidently as an authority, because Donovan's Report, although not specifying in detail what the clause now says, said in paragraph 648:
We have said that it is very desirable that trade union rule-books should be clear and unambiguous, but that they generally fell far short of a satisfactory standard in these respects.
And then they went on to spell out certain provisions. Paragraph 650 reads:
The rules should also state who has the power to consider and decide applications for admission; that applicants refused admission should have a right of appeal to the executive committee of the union and should be so informed at the time of refusal …; and that the executive committee has the power to admit applicants where an appeal is upheld.
Paragraph 651 goes on to—
set out the offences for which the union "—
or employers' association—
is entitled under the rules to expel
… and the penalties applicable for each of those offences.
and provides that the rules must make specific provision in those respects.
The result is that we have put these provisions into our new clause, which I am afraid is rather too long to read out
even in summary. The only extent to which we limit the absolute freedom of unions to do what they like, apart from saying that they must deal with the matters which are listed, is that in subsection (13) we simply say:
In making provision for any hearing or a determination of any question, whether in relation to an alleged offence, an appeal or a dispute, the rules shall be so framed as not to depart from, or permit any departure from, the rules of natural justice.
Whatever else may be said about this linking new clause, I would hope that no one will say that that is an unreasonable fetter upon the union's freedom and discretion in the matter. We have dealt with it in this respect because one would think that, whatever else a new union would wish to do, it would wish to cover in its draft rules a large number of matters, and that this would provide a useful check list.
§ The Amendment covers the name of the union—and when I say "union", in each case I am talking equally about an employers' association—the purposes of the union; the manner in which its property or funds are authorised; the financial benefits which are available; the manner in which the rules can be made, altered or revoked; the rules must make provision for the election of a governing body, and their removal if necessary; they must make provision for the election or appointment of officials who are not officers, and for the manner in which they can be removed; the rules must make provision as to the manner in which, or the purposes for which, elections are to be held or ballots taken, including the notification of vacancies, and so on. Incidentally, a lot of people think that it would be a good thing if unions held their elections by ballot, but this Amendment does not go so far as that. It leaves them freedom to make their own decision about that matter. Whether or not that was wise on our part, that is the course which we have taken.
§ The Amendment then goes on to cover descriptions of persons who are eligible for membership of the union or employers' association, or the branches; the procedure for dealing with applications for membership; the offences which render a person liable to disciplinary action and the penalties applicable for the offences; the procedure for hearing cases; the procedure with respect to 1479 appeals; and the procedure for settling disputes between a member and the union or its officers. We do not say what view the unions should take about these several matters. We accept, for the purposes of this Amendment, that they can take their own decisions. We say only that any reputable body will make provision for them, and we consider that this is a very modest proposal. With those few words, I would only add that once again the Amendment was debated fairly exhaustively in the other place with a fairly close result. The other place divided and the votes were 303 to 304, again a majority of one, and again on the fateful evening of that dinner party in Belgrave Square. I beg to move.
§ LORD SHEPHERD
Since the noble and learned Lord referred to Amendment No. 9 as a medicine, and presumably he is suggesting that we should get a move on, I will intervene at this stage. I cannot help but reflect that the difference between the noble and learned Lord and this side of the House in terms of industrial relations is that, while he has moved this Amendment with care and has taken a soft approach, he keeps referring to my noble and learned friend as not being in the firing step. If that is at the back of his mind as he deals with industrial relations, perhaps we can well understand why the previous Administration, of which he was such an illustrious Member, got into so much difficulty.
§ LORD HAILSHAM OF SAINT MARYLEBONE
That is a metaphor borrowed from the late Sir Winston Churchill, of which he was particularly fond. I do it out of piety.
§ LORD SHEPHERD
I have to tell my noble and learned friend that if he had been present earlier no doubt he would have heard that referred to. I must say that if ever I have the misfortune to be on the Benches opposite when we have another close vote in similar circumstances in another place, I shall certainly call upon your Lordships' House to support me if I have the nerve to make a case when the merit of my argument rests upon one vote. But I must not waste 1480 time, and I must get on with the Amendment.
We should concede that the Opposition have gone a long way in this Amendment, compared with that which was originally placed on the Marshalled List. It is absolutely true to say that it is pure Donovan. Nevertheless, there are two reasons which I should like to put to the Committee why it should not be accepted. First of all, there has been a good deal of progress since the Donovan Commission reported in June, 1968. It is perfectly true that Donovan criticised very severely the trade union rule books as being far from clear and unambiguous, and the Commission considered that, without impairing the unions' freedom to frame rules to meet their own circumstances, the minimum requirement was for the rules of registered unions to be revised to ensure better safeguards for members. The Commission recommended new statutory requirements for rules to govern admission, discipline, disputes between union and members, and elections, including the provision for the election of shop stewards.
The initial reaction of the T.U.C.'s General Council to these and other proposals was given in an interim report, Action on Donovan, published in November, 1968. The General Council found little evidence of serious problems arising from the shortcomings of rule books, but undertook to consider the case for formulating certain basic principles for rules. Also, in November, 1968, the Council issued a questionnaire to affiliated unions about their rules on admission and discipline, the replies to which were to reveal a general absence of any right of appeal against non-admission and a tendency to scatter rules on offences and penalties throughout different parts of the rule book.
Following the publication in January, 1969, of the White Paper, In Place of Strife, which took up the Royal Commission's recommendations on rules in the context of a proposed system of compulsory registration, a special congress was held at Croydon in June, 1969, and it endorsed alternative proposals put forward by the T.U.C.'s General Council in a programme called Programme for Action. Among other matters, this programme recorded the General Council's 1481 intention to draw up basic principles concerning admission, discipline, expulsion and election procedure which affiliates would be expected to incorporate in their rules. The General Council further undertook to consider whether a new Congress rule would be needed to cover these matters, and whether it should define criteria for incorporation in union rules relating to the calling of strikes. It accepted the need for unions to consider how best to integrate shop stewards more effectively in the process of union government.
Within three weeks of the Croydon congress approving its policy, the General Council issued the first of three circulars setting out recommended principles for union rules. The first circular dealt with rules on admission and discipline. The second circular issued in December, 1969, covered strike procedures and the duties and responsibilities of shop stewards. The final circular in April, 1970, on the need for clear rules about determining when contributions are unpaid, was not anticipated in the Programme for Action but was apparently prompted by a High Court judgment. From that I hope the Committee will see that the T.U.C. and the affiliated unions are seeking, on a voluntary basis, to deal with this important issue which arises on this Amendment.
I accept that there is need for some provision of this sort, but I am doubtful whether at this moment the statutory approach is right as a consequence of its being so prejudiced by the 1971 Act. As I said on a previous Amendment, psychologically and emotionally, the union attitude is deeply suspicious of statutory rules and we should seek to avoid them if we can. This does not mean that, at the end of the day, Parliament needs to introduce legislation. This is the first stage in a long and complicated discussion, because of the complexity of the matter and because of the deep suspicion of a democratic society. The trade unions are in themselves democratic societies, but we need further time in these discussions and I hope that the noble and learned Lord will give us time, having satisfied himself with one blood-letting this afternoon.
§ 6.2 p.m.
§ LORD HAILSHAM OF SAINT MARYLEBONE
I wonder whether the 1482 noble Lord has answered my arguments. He began by confessing—and I was grateful to him for his candour, which I expected—that this Amendment proposes nothing more than what he described in his own words as "pure Donovan". That is fair. I should have thought, as a small concession to reason, the Government might then have gone on to accept the Amendment, but not so. The noble Lord said that there were two reasons why not. One was progress since Donovan, which I neatly noted and marked "(a)"on my notes, but I never got as far as "(b)". I am not sure whatever became of "(b)".
§ LORD SHEPHERD
To refresh the noble and learned Lord's memory, I referred to it with the greatest of possible delicacy, because I did not want to ruffle noble Lords opposite. I referred to "(b)"as the general attitude towards the 1971 Act,
§ LORD HAILSHAM OF SAINT MARYLEBONE
I did not realise that was "(b)". We shall deal with it in due course, all the same. We shall deal with "(a)"first. Of course I do not deny that under the influence of Donovan the Trades Union Congress has begun to put its house in order very seriously, and this is very good. Trade union rules are not by any means as bad as they were when Donovan reported that they generally fell far short of a satisfactory standard in these respects. The Government, in In Place of Strife six years ago, considered at that time that the legal requirements—which were stronger than they are now proposing, because they included the 1871 Act—relating to the rules of trade unions were inadequate and should be extended, in the interests both of the unions and of their members. I do not believe very much progress has been made about that.
I must point out to the Government that this new clause is designed to apply to employers' associations, too, and no amount of progress made by the Trades Union Congress can make me think it ought not to apply to employers' associations, because they do not usually follow the Trades Union Congress. As I said in relation to the last Amendment, this clause does not apply only to unions affiliated to the Trades Union Congress. It applies to new unions, splinter unions, any kind of small body that wants to call itself a trade union, about which the 1483 "top brass"of the trade unions, whether those I see now arrayed on the other side of the House or elsewhere, usually have some pretty rough words to say. So I do not think there is very much in that.
Then, going on to "(b)", as we now know its proper label, it is said that we must do it now because the trade union movement is so prejudiced against the 1971 Act. But I understood that this Bill would repeal the 1971 Act in all its works, so they cannot be prejudiced against anything in this Bill. What the noble Lord the Leader of the House meant was the 1871 Act, because we are not actually proposing that anything in the 1971 Act should be put back in this Bill by this
§ Amendment. I am suggesting that the 1871 Act should be reinstated and that a few modernising proposals, all of which are pure Donovan, should be added to it.
I would yield to the noble Lord's plea to have no more blood let this evening, if only he was a little more reasonable. So far he has not given any reasons, and he has only bared his breast for the next incision of the surgeon's knife which I feel I must now ask my noble friends to insert.
§ 6.7 p.m.
§ On Question, Whether the said Amendment (No. 9) shall be agreed to?
§ Their Lordships divided: Contents 92; Not-Contents, 64.1485
|Aberdare, L.||Glasgow, E.||Rankeillour, L.|
|Allerton, L.||Gore-Booth, L.||Redcliffe-Maud, L.|
|Alport, L.||Goschen, V.||Reigate, L.|
|Amherst, E.||Gowrie, E.||Robertson of Oakridge, L.|
|Amherst of Hackney, L.||Hailes, L.||Rochester, L.|
|Auckland, L.||Hailsham of Saint Marylebone, L.||Ruthven of Freeland, Ly.|
|Barnby, L.||St. Aldwyn, E. [Teller.]|
|Berkeley, B.||Hankey, L.||St. Davids, V.|
|Boothby, L.||Hanworth, V.||Salisbury, M.|
|Brougham and Vaux, L.||Hawke, L.||Sandford, L.|
|Byers, L.||Henley, L.||Sandys, L.|
|Cathcart, E.||Hornsby-Smith, B.||Savile, L.|
|Colville of Culross, V.||Killearn, L.||Seear, B.|
|Cork and Orrery, E.||Kilmany, L.||Selkirk, E.|
|Cowley, E.||Kilmarnock, L.||Sempill, Ly.|
|Crathorne, L.||Lauderdale, E.||Sharpies, B.|
|Daventry, V.||Lloyd of Kilgerran, L.||Somers, L.|
|de Clifford, L.||Long, V.||Stamp, L.|
|Denham, L. [Teller.]||Lyell, L.||Strathclyde, L.|
|Derwent, L.||Macleod of Borve, B.||Strathspey, L.|
|Drumalbyn, L.||Mancroft, L.||Terrington, L.|
|Dundee, E.||Margadale, L.||Trefgarne, L.|
|Ebbisham, L.||Massereene and Ferrard, V.||Vivian, L.|
|Eccles, V.||Merrivale, L.||Wade, L.|
|Elles, B.||Monck, V.||Ward of Witley, V.|
|Emmet of Amberley, B.||Mountevans, L.||Wigoder, L.|
|Exeter, M.||Mowbray and Stourton, L.||Windlesham, L.|
|Fraser of Lonsdale, L.||Northchurch, B.||Wise, L.|
|Gainford, L.||Oakshott, L.||Wolverton, L.|
|Geoffrey-Lloyd, L.||Orr-Ewing, L.||Young, B.|
|Gladwyn, L.||Platt, L.||Younger of Leckie, V.|
|Arwyn, L.||Delacourt-Smith, L.||Hale, L.|
|Bacon, B.||Donaldson of Kingsbridge, L.||Hall, V.|
|Balogh, L.||Douglas of Barloch, L.||Harris of Greenwich, L.|
|Bernstein, L.||Douglass of Cleveland, L.||Henderson, L.|
|Beswick, L.||Elwyn-Jones, L. (L. Chancellor.)||Houghton of Sowerby, L.|
|Birk, B.||Hoy, L.|
|Blyton, L.||Feather, L.||Jacques, L.|
|Brockway, L.||Fiske, L.||Leatherland, L.|
|Buckinghamshire, E.||Gaitskell, B.||Llewelvn-Davies of Hastoe, B. [Teller.]|
|Burton of Coventry, B.||Gardiner, L.|
|Castle, L.||Garnsworthy, L.||Lovell Davies, L.|
|Champion, L.||Gordon Walker, L.||Maelor, L.|
|Collison, L.||Goronwy-Roberts, L.||Maybray-King, L.|
|Crook, L.||Greenwood of Rossendale, L.||Melchett, L.|
|Milner of Leeds, L.||Rusholme, L.||Summerskill, B.|
|Morris of Kenwood, L.||Sainsbury, L.||Taylor of Gryfe, L.|
|Pannell, L.||Segal, L.||Taylor of Mansfield, L.|
|Pargiter, L.||Shepherd, L. (L. Privy Seal.)||Wells-Pestell, L.|
|Peddie, L.||Shinwell, L.||Winterbottom, L.|
|Phillips, B.||Slater, L.||Wootton of Abinger, B.|
|Rathcreedan, L.||Snow, L.||Wynne-Jones, L.|
|Royle, L.,||Strabolgi, L. [Teller.]|
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ 6.15 p.m.
BARONESS SEEAR moved Amendment No. 10:
After Clause 4, insert the following new clause:
Every member of a trade union, or branch or section thereof, shall have the right, on giving reasonable notice and complying with any reasonable conditions, to terminate his membership at any time of the trade union or branch or section thereof.
§ The noble Baroness said: This is a brief Amendment which is in fact complementary to Amendment No. 8 which your Lordships' Committee has just passed. To put it briefly, if it is improper to prevent people from entering a union or arbitrarily to expel them, a fortiori it is still worse to lock them in against their will. That is at present an unusual practice but it does exist. There is a trade union rule that a member may not leave except with the permission of the executive council of his particular union. In order that this practice should not spread but be banned, I beg to move this Amendment.
§ LORD SHEPHERD
I am rather surprised that the noble Baroness has moved this Amendment because my understanding—and I see the noble and learned Lord, Lord Hailsham, sitting opposite and my noble and learned friend the Lord Chancellor behind me at the firing step—is that the position is well covered by Common Law. The noble Baroness draws particular attention, however, to a member who, because of the rules of his union, is prevented from resignation. I understand that if there was any question of the rules being ultra vires then this would be a question, again, for the court. When a person joins a union, or for that matter any other organisation, with the full knowledge of what the rules are of the union or organisation, he enters into some form of contract—does he not?
What the noble Baroness is suggesting in this Amendment is that a person, having accepted a contract with a union 1486 in order to obtain all the benefits of the union, should be able as of right to say: "Despite all I may have gained as a consequence of joining the union, it now suits me and I wish to leave." I should have thought, speaking as a union member, that that was quite unacceptable. I can think of a number of organisations where equally it would still be regarded as unacceptable, particularly if the person, having exercised his right of leaving which the noble Baroness would give, would still be able to enjoy all the opportunities and privileges that the union will obtain or has obtained in the past.
I have always regarded my union membership as a form of contract with my other colleagues within the union. It is a democratic society and I should have thought that here was a case where, if there were to be changes in the rules, they should come from within and one should not seek to bring them about in a statutory, legislative form. We have always said (have we not?) about your Lordships' House that we have our own Rules; we are governed by them, and would deeply resent anyone in another place speaking there about how we should change our Rules. If our Rules are wrong, we would look to ourselves to seek to change them democratically. That is what I suggest should apply in the field of the trade union movement.
§ LORD BYERS
Before the noble Lord leaves that point, will he tell the Committee whether, in the case of his own union, he has the right to terminate his membership if he wishes to do so? He He talks about "enjoyment", but is not the enjoyment of something from which you cannot escape rather like the enjoyment which you get in prison?
§ LORD SHEPHERD
So far as my own union is concerned, yes, I have that right. Secondly, when I use the word "enjoyment", I think of all the benefits which the trade union movement has achieved for that workforce in a particular factory or a particular industry. Those are the "enjoyments" to which I am referring.
1487 I well remember—although I fear that noble Lords on the other side did not appreciate it—the deep sense of hostility among working folk about their strivings in order to achieve certain social advances; the feeling that there are certain sections of the community who are prepared to live off them but who are not prepared to put their own backs into achieving those results, or even better results.
§ LORD BYERS
With all respect to the noble Lord, I think that he is fighting the wrong battle here. We used to have that argument, but what my noble friend Lady Seear is asking the noble Lord is whether he agrees that every member of a trade union, or a branch or section thereof, shall have the right, on giving reasonable notice and complying with any reasonable conditions, to terminate his membership. We all know that things can happen; one can be in a union, association or organisation for 20 or 30 years and then something happens which makes membership of that union, association or organisation intolerable. All we are saying is that in those circumstances one ought to be in the position of being able to resign after reasonable notice. I do not think that there is any relevance in what the noble Lord has said about the strivings of the union. That is accepted; there is no hostility towards the unions. But there are cases where people find that it is intolerable to remain members, and after reasonable notice they should, in my view, be allowed to terminate their membership.
§ LORD SHINWELL
I am bound to say that I cannot understand what the Liberal Party are up to. It is all very well to provide absolute freedom or partial freedom for a person who is a member of a trade union, who derives all the benefits of association with that trade union and who operates on the shop floor, or in some other capacity, to decide, for some reason or another, to leave. It is very difficult to define accurately what is meant by "reasonable". All kinds of interpreations could be furnished in order to justify reasonable action. But what happens? What are the consequences? Let us suppose that a man who is a member of a trade union suddenly decides that he wants to continue to operate in a particular factory. Let us further suppose 1488 that although he is no longer a member of the trade union he still desires to associate himself with those with whom he was associated while he was a member of the trade union, but not to be a member of the union and not to pay his contributions, although deriving all the benefits which are provided by association with the others. If the shop floor decides "We are going on strike", is that what the Liberal Party want? Do they want to provoke more trouble?
I cannot understand their attitude in this matter. Obviously, they have not operated in a factory; they do not know what happens on the shop floor; they do not know what difficulties face shop stewards. There has been much castiga-tion of shop stewards, but the Liberal Party do not realise what are the responsibilities which are placed upon shop stewards. But here the position is as clear as it can be. Somebody who is a member of a trade union and working along with a thousand other men in a particular factory decides to leave the union for some reason or another. Therefore those who were associated with him decide to go on strike. What happens then? Is that what the Liberal Party want? That is the kind of thing which has been happening.
Advantage was taken of this by several people under the previous Act. Time and again cases were referred to the Industrial Court—some on religious grounds and others on conscientious grounds. We know how easy it is to spread "conscience"; it is very elastic-sided. It is some time since I was associated officially with the trade union movement, but many years ago I was associated with the seamen and I know what happened. If, for example, the majority of the main deck and below joined the union and paid their contributions, but somebody said, "No, I am not going to be in the union", the men would not sail and in consequence many ships were held up. Is that the kind of thing they want? It could still happen.
May I say further that we have had two Divisions this evening. I can understand many of my noble friends being aggrieved by this. I am not at all aggrieved by it. Leaving the Liberals aside for the moment and turning to the Tories, they have always been a bit stupid. I am not the 1489 only one who says that. Disraeli said it long ago, and even Churchill said it—and sometimes even the noble and learned Lord, Lord Hailsham, has said it. Shall I furnish an instance? There was an occasion when he abandoned his hereditary Peerage. Probably there were sound reasons then for abandoning his Peerage. However, it was on the occasion when the question arose about who was likely to be the next Leader of the Tory Party.
The noble and learned Lord is right to blow his nose. That is the only thing which is left to him to do. This is one of his physical acts. However, let me develcp what happened for a moment, because it is a matter of political history. Nobody was more resentful about the Tory Party than the noble and learned Lord. He denounced them with bell, book and candle. He is not the only one; and they are still being a bit stupid. I cannot imagine anything more stupid, almost on the eve of another General Election when it is very dicey about who is going to win. It may be half-a-dozen each way.
I can imagine what the militants in the trade unions are now saying: "Away with your moderation!" An atmosphere of moderation has been emerging recently. I welcome it, and I am sure that the majority of the Members of your Lordships' House welcome it, too. We want to improve industrial relations, but when it is announced in the newspapers tomorrow morning that the House of Lords have defeated the Labour Government again, what then? Do you think that they will bother about the merits of the case? The noble and learned Lord has been speaking about the merits of the case. They will not bother at all about the merits of the case. The House of Lords, they will say, is down on the Labour Government upon a matter affecting the trade unions. Therefore they are more likely to vote for the Labour Party at the next Election than otherwise.
Very well; they can carry on in this fashion, but I wish they would not. They are wrecking their own chances and also making it very difficult to improve industrial relations. Let the Opposition have their own way, but I beg the Liberals, who are a bit better than the Tories—not very much but a bit better—not to associate with the Tories either now or after the Election. Take my advice. If 1490 you carry on in this fashion you will do the Labour Party an awful lot of good. For my part, I have never voted more delightedly in those two Divisions. Why? Because the Whips told me to vote. Otherwise, I would not have cast a vote against the Tories this time. The more they vote against us in the House of Lords, the better it will be.
§ LORD FEATHER
I know that the object of this Amendment is to protect some person who, as the noble Lord, Lord Byers, has said, has a strong conscientious feeling about some particular aspect. Any union is prepared to allow someone to resign his membership of that union. However, the people that this Amendment seeks to protect are those people who want to resign their membership but who want to continue to have the protection of the conditions, the wages and the general atmosphere for which the union has negotiated. If I thought that somebody wanted to leave a union and wanted, as it were, to disavow all the things from which he was benefiting as a consequence of union action I would regard that man as being honourable. But I am sorry to say that most of them are not like that: they want to leave the union, but they want to get the increases and the conditions that the union has obtained for them.
I should like to ask the noble Baroness, Lady Seear, whether she wants to encourage the philosophy of "something for nothing". I should have thought that she does not want that, and indeed I should have thought that nobody in this Committee would want to encourage the philosophy that there is something for nothing in life. There is not something for nothing; there is only something if somebody else is paying more than their fair whack. If noble Lords believe in the philosophy of something for nothing, then they should support this Amendment, but if they believe that people should accept their full responsibility in this society it seems to me the Amendment should be rejected, and I should like to see it withdrawn on those grounds.
§ LORD HAILSHAM OF SAINT MARYLEBONE
Perhaps I might intervene for a moment, because it seems odd that the noble and learned Lord has not uttered something. The noble Lord the Leader of the House said that this matter 1491 was dealt with by Common Law and from that I drew the inference that the Amendment was unnecessary. The inference I draw from the speech of the noble Lord, Lord Feather, is that the Amendment is abominable, not that it is unnecessary. It cannot be both. I really think the Committee is entitled to a little legal advice from its senior legal representative. Which of them is right: the noble Lord, Lord Feather, the noble Lord the Leader of the House or the noble Baroness, Lady Seear?
I wonder how serious the noble Lord, Lord Feather, really is. The noble Baroness, Lady Seear, told us that this was practically non-existent; very few unions intend to hold people against their will. Most societies allow resignations. I know that according to some tenets of some Christian bodies marriage is indissoluble, but should unions be the same as regards their membership? Are you there "till death us do part"? Are you there even if you do not want to stay any longer, and what good will come out of such a rule, and how can it be enforced? Supposing a union member says, "I am not going to be a member of this union any longer; I am not going to pay any subscriptions; I give you six months' notice"—what is the effect in law?
The noble and learned Lord is sitting there, obtaining a reputation for wisdom by his taciturnity, but I want to tempt him to his feet. The Committee is entitled to know the answer to these questions before it votes on the Amendment. What did the noble Lord the Leader of the House mean when he said that the problem was dealt with by Common Law and is it really true that such a rule, if it exists, can be enforced by any legal process whatsoever? I think the Committee is entitled to know the answer from its great expert.
§ LORD SHEPHERD
If I may say so, the noble and learned Lord is being very mischievous. My noble and learned friend is going to be fielded when we come to the more complex legal matters of the Bill. As I understand it as a layman, this matter is not legally complex. I understand that in the absence of any express rule about resignation it seems clear from case law that a member is 1492 free to leave his union if he chooses to do so. Indeed, in all probability a union would be acting ultra vires if it sought to prevent him from leaving. If the union has a rule which requires him to give so much notice of his intention, then the law requires that he gives that notice to make his resignation effective. The proposed new clause recognises that this is only fair.
However, if a union tries to adopt a rule depriving members of all freedom to resign, or at least restricting that freedom unreasonably, the courts could be expected to declare such a rule void as being against public policy. This would be the case, for example, where the rules gave the union Executive an overriding discretion to refuse resignation which the Executive proceeded to exercise in an unrealistic manner. My understanding is that that is the law as it applies to this issue. I oppose the Amendment because in one respect it is unnecessary, but also, if it were put into the Bill in its present form, it would appear to give an exaggerated right which, as my noble friend Lord Feather said, would be quite undesirable within the trade union movement.
§ BARONESS SEEAR
The arguments we have heard are, of course, the traditional arguments which are always produced in support of the closed shop and compulsory trade union membership. We accept that normally speaking and in most circumstances a man will belong to the union and will contribute to the union from which he gains benefits, and the objections to his leaving for exceptional reasons are covered in this Amendment, in that we say that he must give reasonable notice and must comply with any reasonable conditions. We are simply saying that, in certain places, this limitation is creeping into the rules of the union. It may or may not be true, but as the noble and learned Lord, Lord Hailsham of Saint Marylebone, has said, we have not had a legal ruling on this, and I am not aware that the courts have ever given a judgment on it, that it is, in fact, ultra vires for that rule to exist. If it is ultra vires, then indeed the organisations which are doing this are presumably acting unlawfully, but I do not understand that this is, in fact, established and, for that reason, I wish to press the Amendment.
§ 6.40 p.m.
§ On Question, Whether the said Amendment (No. 10) shall be agreed to?
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ Clause 5—[Lists of trade unions and employers' associations]:
§ 6.47 p.m.
THE EARL OF GOWRIE moved Amendment No. 11:
Page 5, line 2, after ("68(4)") insert ("or 85(3)").
§ Their Lordships divided: Contents, 76; Not-Contents, 68.1493
|Allerton, L.||Hailes, L.||Rankeillour, L.|
|Amherst, E.||Hailsham of Saint Marylebone, L.||Reigate, L.|
|Amherst of Hackney,||Rochester, L.|
|Barnby, L.||Halsbury, E.||Ruthven of Freeland, Ly.|
|Berkeley, B.||Hanworth, V.||St. Aldwyn, E.|
|Brougham and Vaux, L.||Hawke, L.||St. Davids, V.|
|Byers, L.||Henley, L.||Salisbury, M.|
|Colville of Culross, V||Hornsby-Smith, B.||Savile, L.|
|Cork and Orrery, E.||Killearn, L.||Seear, B. [Teller.]|
|Cowley, E.||Kilmany, L.||Selkirk, E.|
|Crathorne, L.||Kilmarnock, L.||Sempill, Ly.|
|Cullen of Ashbourne, L.||Lauderdale, E.||Sharples, B.|
|Daventry, V.||Limerick, E.||Stamp, L.|
|Davidson, V.||Lloyd of Kilgerran, E. [Teller.]||Strathclyde, L.|
|Denham, L.||Long, V.||Strathspey, L.|
|Drumalbyn, L.||Lyell, L.||Terrington, L.|
|Dundee, E.||Macleod of Borve, B.||Trcfgarne, L.|
|Eccles, V.||Margadale, L.||Tweedsmuir of Belhelvie, B.|
|Elles, B.||Merrivale, L.||Vivian, L.|
|Emmet of Amberley, B.||Monck, V,||Ward of Witley, V.|
|Exeter, M.||Mountevans, L.||Wigoder, L.|
|Gainford, L.||Mowbray and Stourton, L.||Windlesham, L.|
|Gladwyn, L.||Northchurch, B.||Wolverton, L.|
|Gore-Booth, L.||Oakshott, L.||Young, B.|
|Goschen, V.||Orr-Ewing, L.||Younger of Leckie, V.|
|Gowrie, E.||Platt, L.|
|Arwyn, L.||Gardiner, L.||Pargiter, L.|
|Bacon, B.||Garnsworth, L.||Peddie, L.|
|Balogh, L.||Goronwy-Roberts, L.||Phillips, B.|
|Bernstein, L.||Gordon-Walker, L.||Rathcreedan, L.|
|Beswick, L.||Hale, L.||Royle, L.|
|Birk, B.||Hankey, L.||Rusholme, L.|
|Blyton, L.||Harris of Greenwich, L.||Robertson of Oakridge, L.|
|Brockway, L.||Henderson, L.||Sainsbury, L.|
|Buckinghamshire, E.||Houghton of Sovverby, L.||Segal, L.|
|Burton of Coventry, B||Hoy, L.||Shepherd, L. (L. Privy Seal.)|
|Castle, L.||Jacques, L.||Shinwell, L.|
|Champion, L.||Leatherland, L.||Slater, L.|
|Clwyd, L.||Lee of Newton, L.||Snow, L.|
|Collison, L.||Llewelyn-Davies of Hastoe, B. [Teller.]||Somers, L.|
|Crook, L.||Stow Hill, L.|
|Donaldson of Kingsbridge, L.||Lovell Davies, L.||Strabolgi, L. [Teller.]|
|Douglass of Cleveland, L.||McLeavy, L.||Summerskill, B.|
|Delacourt-Smith, L.||Maelor, L.||Taylor of Mansfield, L.|
|Elwyn-Jones, L. (L. Chancellor.)||Maybray-King, L.||Wells-Pestell, L.|
|Evans of Hungershall, L.||Melchett, L.||Winterbottom, L.|
|Feather, L.||Milner of Leeds, L.||Wise, L.|
|Fiske, L.||Morris of Kenwood, L.||Wootton of Abinger, B.|
|Gaitskell, B.||Pannell, L.||Wynne-Tones, L.|
§ The noble Earl said: With the leave of the Committee, I wish to speak to Amendments Nos. 11, 12 and 13 together. These are simply alternatives and their purpose is simple. All other unions and bodies which are listed, as we now do it, in Clause 5(2) will automatically go on the list to be kept by the Registrar of Friendly Societies. We feel that the special register bodies which, in the first instance, were being excluded but which 1495 are now to be included, should also have the right to go on the list automatically if they so wish. It is a question of choice.
§ The reason why we did not press this Amendment in Standing Committee in another place was that there was then some question as to whether the bodies concerned wanted that to happen. We felt we should not push something intended to be for the benefit of a particular group of people, unless they themselves wished it. No doubt the noble Lord has had some notes from the British Medical Association, speaking for itself and the other bodies with whom it has jointly made representations, saying it would like to go on the list automatically. Any of the Amendments Nos. 11, 12 or 13 would produce that effect and would give pleasure, I imagine, to the B.M.A. The neatest one in our view is No. 11. Speaking for myself, I do not in the least mind which of the methods is employed. I hope the Government will find it possible to accept one of them.
§ LORD SHEPHERD
I think we should be quite clear what is involved. If an organisation does not appear on the Registrar's list, then the question of tax relief on provident income arises. This is not a significant problem for the organisations referred to by the noble Earl, Lord Gowrie. When we discussed the Industrial Relations Act, it was very clear that those who were to be put on to the Register would be vetted. They would go through a particular "hoop". One of the basic requirements for going through that "hoop" was that the organisations were principally involved in industrial relations. Therefore, I do not think there will be any difficulty in those organisations, trade unions or employers, getting on under Clause 5(2).
But there are some organisations, and the noble Earl himself referred to them, that are not principally involved in industrial activity. They have not been vetted to that extent. They are involved in many other aspects of public life, but industrial relations is not a principal activity. This does not preclude them from appearing on the register, but it does require that they should go through the provisions of subsection (3) and satisfy the Registrar accordingly. I myself do not believe that there will be any difficulty 1496 for those organisations to go through this particular "hoop". I hope the noble Earl will agree that it is right that we should keep the two subsections quite separate. Those that have been vetted, those that are clearly involved principally in industrial relations, should go through one "hoop" and should appear under one subsection, but those which have other activities, where industrial relations are not a principal activity, should be treated separately and should appear under Clause 5(3).
THE EARL OF GOWRIE
I had, of course, hoped that the noble Lord the Leader of the House would have found it possible to accept one of these Amendments, which seem to be mild. If the Government do not accept any of them, while professing to wish to include such organisations, they will nevertheless be treating them quite differently. The noble Lord's friends in another place have intimated to us that one reason for not making changes was that some bodies might not come within the definition of a "trade union" and might not be entitled to be registered. For bodies wanting to register in the future that might be a relevant consideration. But, surely, it would be contrary to the spirit of the Amendments accepted to Clause 2 in another place. There are, therefore, practical difficulties and practical considerations which we should be thinking about, and I fear we are not. But I am most anxious to avoid the accusation by the noble Lord, Lord Shinwell, of not being co-operative. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ LORD SHEPHERD
I think this might be an opportune moment to propose that we should adjourn the Committee stage, and I therefore beg to move that the House be resumed in order to take the Second Reading of the Railways Bill. I do not know how long your Lordships will require on that Second Reading. I would suggest that if it should finish earlier than eight o'clock the House should then be adjourned during pleasure, in order that those of us who have slaved so hard on this Trade Union Bill this afternoon should have the opportunity for a meal. I beg to move that the House do now resume.
§ Moved, That the House do now resume.—(Lord Shepherd)
§ On Question, Motion agreed to and House resumed accordingly.