§ 2.59 p.m.
§ Report received.
§ THE LORD PRIVY SEAL (LORD SHEPHERD)My Lords, I beg to move a Manuscript Amendment to Clause 5 which reads as follows:
Page 48, line 17, leave out" otherwise in this Act contained "and insert" Section 2(5) above".I move this Manuscript Amendment with a good deal of hesitation. I am satisfied that within our Rules of Procedure it is right and proper to move Manuscript Amendments, but on a previous occasion some doubt was expressed whether it was fair to the House to move a Manuscript Amendment on Report stage when one was taking, or expecting to take, a Third Reading immediately after. I have responded to that and I believe that it is a matter which needs to be considered by our Procedure Committee.My Lords, I would not move this Manuscript Amendment if I had not carried through a series of consultations 2046 or negotiations with the noble and learned Lord, Lord Hailsham, who I regret to see is not present, but I think that I can say to your Lordships' House that if he were here his view would be that your Lordships' House should accept this Amendment, provided that I could give an undertaking that those who have been involved in this Bill in another place were so satisfied. It is not for your Lordships' House to take into account what those in another place may consider, but in the light of what the noble and learned Lord has said to me I can only respond here by saying that I have carried out my consultations—true, in an arms' length way—and that I am satisfied that the undertaking which he required has been received
Subsection (5) of the Bill did not appear in the new clause on the safeguards for union membership which was twice tabled by the Opposition in another place. However, I know that they have been concerned, as was the noble and learned Lord, to safeguard common law rights and there have been debates about this, both here and in another place, in relation to the immunity for restraint of trade in Clauses 2 and 3 of the Bill. I have been advised that the words "or otherwise in this Act contained" go very wide indeeed. The operation of these words would extend through the Bill and would appear to nullify any of the immunities contained in the Bill in favour of organisations or individuals concerning a legal action by a person of a kind described in the last three lines of the subsection: that is to say, unsuccessful applicants for union membership, union members who wish to retain membership and former members who have been expelled. Together these three classes of person represent a potentially wide description of "plaintiff". The immunities upon which these words would operate to nullify in these circumstances are not confined to Clause 2(5)—the protection of trade unions from illegality by reason of restraint of trade about which the Opposition in another place were originally concerned. They would include also Clause 13, the immunity for inducing a breach of employment contract, and Clause 14, the prohibition of actions in tort against trade unions. As I understand the position, the Opposition had not raised any question concerning common law rights in all of the many discussions 2047 both here and in another place concerning Clauses 13 and 14, and if I may say so. the noble and learned Lord. Lord Hailsham, himself is still not satisfied that this particular matter deals with those clauses. And they did not, in fact, intend to preserve common law rights in relation to those clauses. The effect of doing so would be to put the position back to that which existed before 1906 in the case of the kinds of complaints to which I have referred. I hope. therefore, that the Amendment will be acceptable.
My Lords, I am very much in the hands of the House upon this matter, but I feel that I must make it absolutely clear that this must be without prejudice to the Government's general position in regard to the new clause that was inserted in Committee. As your Lordships know, we are opposed to the new clause and I think it is right to say that we must reserve our right to have it taken out of the Bill in another place if that can be achieved. However, in case we do not succeed in doing so, we are proposing this Amendment which would limit the provision to that which was envisaged when the Amendment was discussed both in Committee and in Report in another place. My Lords, I beg to move.
THE EARL OF GOWRIEMy Lords, I can confirm to the House and particularly to my noble friends that my noble and learned friend has agreed that this should go forward. I think that it is known generally that my noble and learned friend very much wished to be here, but he cannot be here because he is sitting in a Judicial Committee of the Privy Council. As I think most of your Lordships will have gathered from listening to the noble Lord the Leader of the House, this is somewhat of a technical Amendment. We are not absolutely convinced that it is necessary; but if the Government feel that it is necessary, certainly we do not wish there to be any extension of the principle which we achieved, and we are quite happy to go along with it.
§ LORD SHEPHERDMy Lords, I am grateful to the noble Earl and to the House. The fact that I have moved a Manuscript Amendment on Report and Third Reading should not be taken as yet another added precedent for this practice This is something that we ought 2048 to look at—preserving, however, a degree of freedom in dealing with legislation, particularly at this time of the year. I am very grateful for what the noble Earl has said.
My Lords, I did not intend to say anything on Third Reading, but this may be an opportunity for me to say, because the noble and learned Lord is not in his place, how much we on this side of the House have valued his assistance and understanding in relation to this Bill. We appreciate fully the very great difficulties under which he has been dealing with this legislation—the need to sit in the Privy Council and also in the Appellate Committee. This is one of the problems of your Lordships' House. I do not know whether there is a way out of this particular difficulty. However, we are indeed grateful for what the noble and learned Lord has done, for his participation in our Committee stage and, on one occasion, for pouring oil upon troubled waters. My Lords, we are very grateful to the noble and learned Lord.
§ On Question, Amendment agreed to.
§ Clause 13 [Act in contemplation or furtherance of trade disputes]:
§ 3.5 p.m.
§
THE LORD CHANCELLOR (LORD ELWYN-JONES)
moved an Amendment to Clause 13:
Page 9, line 27, at end insert—
(" (3) For the avoidance of' doubt it is hereby declared that—
shall not be regarded as the doing of an unlawful act or as the use of unlawful means for the purpose of establishing liability in tort.")
§ The noble and learned Lord said: My Lords, on behalf of my noble friend the Lord Privy Seal I beg to move the Amendment standing in his name. The purpose of this Amendment is to put back into the Bill Clause 13(3). This was originally Clause 10(3). Your Lordships will remember that last Monday. July 22, we had an extensive debate on the Opposition Amendment to restrict the operation of Clause 13(1) to contracts of employment and to actual breaches of those contracts, as opposed to interference with performance short of a breach of contract. That Opposition Amendment was
2049§ carried against the Government and Clause 13(1) is now restricted in the way I have just described.
§ At the conclusion of the debate on the Opposition Amendment to Clause 13(1) the noble and learned Lord, Lord Hailsham, said that the Opposition Amendment to delete subsection (3) of Clause 13—Amendment No. 16—was one which, in the circumstances, he would be quite content not to move if it would help the Government. To use his own words, he said that he was "quite willing to drop Amendment No. 16". However, when we started the following day with Amendment No. 16 the noble Earl, Lord Gowrie, who perhaps was not fully aware of what had passed the day before, in fact moved Amendment No. 16. I was proposing to oppose this Amendment, but unfortunately things moved so fast at the Table that I was unable to move from the Scylla of the Woolsack to the Charybdis of the Front Bench, having in the meantime disrobed in time, I hoped, to oppose the Amendment. Accordingly, it was accepted, and for that the fault, I have no doubt, is entirely mine.
§ Your Lordships will recollect that there were some exchanges about the unhappy misunderstanding after the Amendment had been formally agreed to, and, very properly, it was decided that we could not go back on a formal decision in Committee. Then my noble friend the Leader of the House prompted and assisted by the noble Lord, Lord Windlesham, indicated that the Government might have to return to the matter on Report, and return I do now.
§ We have felt it necessary to move the Amendment and I have had a word with the noble and learned Lord, Lord Hailsham, and the noble Earl, Lord Gowrie, and they have, in effect, agreed that this Amendment should not be opposed. If your Lordships desire me to do so, I shall be very willing to explain the reason why we on the Government side think that the subsection is a useful and necessary clarification of the traditional trade dispute immunities. But in view of the willingness to accept the Amendment, and in view of other business before your Lordships' House. perhaps it is advisable at this stage if I merely beg to move.
THE EARL OF GOWRIEMy Lords, I think all of us will agree with the 2050 noble and learned Lord the Lord Chancellor that the House has had a good run at this Bill, and from these Benches I certainly do not wish to delay proceedings very much further. In some slight self-defence, I would just say to the noble and learned Lord that I was aware of what had happened on the relevant evening, but I assumed that my noble and learned friend had meant Amendment No. 17 and not Amendment No. 16, and I have a sneaking suspicion that my noble and learned friend did, in fact, mean No. 17 rather than No. 16. But certainly he was, as we would all expect him to be, most punctilious in keeping to the very letter as well as to the spirit of what he had earlier said, and in that same spirit I am perfectly happy to advise the House to accept this rectification by the Government. In conclusion, I would just say to the noble Lord the Leader of the House that of course we have to say this without prejudice to what line colleagues in another place might take.
§ LORD PANNELLMy Lords, I have not ventured to address this House before, but noting the confusion between the Woolsack and the Front Benches it seems an opportune time for a new Member to speak, especially as we are to leave our deliberations on this Bill until the end of October. I wanted to speak on the Second Reading of the Bill last Tuesday, but your Lordships were addressed by two outstanding trade unionists, the noble Lords, Lord Feather and Lord Houghton. But my modesty was rewarded because in The Times next morning it was reported that I made the speech that was in fact made by the noble Lord, Lord Houghton. As it was a rather better speech than I myself could have made under those circumstances, I did not put the reporters right.
I venture to say that I have an interest in this matter. For 56 years I have been an active member of my own trade union, and therefore I want to make some sort of belated protest that this Bill is going through the House at all. My position reminds me very much of General Patton when he was addressing the cadets at West Point. He looked around and said, "Gentlemen, there may be three or four people in the United States who understand this subject better than I do, but I 2051 do not see them in front of me. "This is the difficulty about this subject.
On all sorts of subjects to which I have listened relevant to this Bill, it seems to me that the decisions of the House are out of step with the realities of industry as I have known them. I refer particularly, of course, to the matter of the closed shop. I operated a closed shop for 13 years before I went to the other House, and it was perfectly amicable in every way. Nobody objected and I have no doubt at all that whatever your Lordships may do, that establishment will still operate a closed shop. It really ought to be understood that when you deal with the trade union movement, you deal with something that is older than most of the protest meetings of the Left. It should be remembered that after the Reform Bill the trade unions were formed from a voteless peasantry and a voteless proletariat, and they had to beseech the great parties of the State before they themselves were granted a franchise.
I suppose it was only in about 1867 that skilled workmen were even given the right to vote at all. Consequently, when they feel that they are worsted or twisted by the Legislature, they turn back again to their ancient defences. That is the position and nothing that the 1971 Act could do got over that. The 1971 Act is discredited and disowned, even by the Conservatives and Mr. Heath himself, and this attempt to make a social contract and to bring in an Act of Parliament in which everyone could co-operate to get a better set of relationships would, in my view, have been better left alone. This place claims to be one of the estates of the realm. The trade union movement is one of the estates of the realm, because it has the power to give and withhold supplies, and it will not be pushed about merely by a lot of academic and economic nonsense, much of which has crept into the Bill by what I consider to be the collective ignorance of your Lordships' House.
§ LORD BYERSMy Lords, I should not like the courtesies of this House to go by the board, because I should like to take the opportunity of congratulating the noble Lord, Lord Pannell, on his maiden speech despite the controversial nature of its contents. We welcome the 2052 fact that he has "broken his duck", and I can only say that it is a pity he did not do it a lot earlier. We should have liked to have the benefit of his experience. Perhaps I may also say that I am not quite sure about the relevance of his speech to the Amendment with which we are dealing. What I say is not in any way critical, but I think Third Reading might have been a proper occasion. However, I think it shows that we have to watch our Rules in this House and, in particular, we must bear in mind the lesson of this Amendment; namely that Lord Chancellors must keep in good repair their capacity to sprint.
§ LORD HANKEYMy Lords, I should like to join in congratulating the noble Lord, Lord Pannell. Your Lordships' House is full of experts on every conceivable subject and the noble Lord is undoubtedly a great addition. He has enormous experience in the functions of shop stewards and trade union life of every sort, and also in another place, and I hope we shall often hear from him.
Before we pass from this Amendment I should just like to ask for a clarification. This is a very difficult subject in regard to the law of tort and the legal immunities. My understanding of the Conservative Amendment to what is now subsection (1) of Clause 13 was that the immunities described in the previous draft of this Bill were restricted to contracts of employment, and did not extend to breaches of contract in general. That was an Amendment which I understood and supported. But now, when we read the insertion of subsection (3), printed on page 9 of the paper which your Lordships hold, we see that under (3)(b):
… it is hereby declared that—… (b) a breach of contract"—it does not say of employment—in contemplation or furtherance of a trade dispute; shall not be regarded as the doing of an unlawful act …et cetera. Has this made nonsense of the Amendment to Clause 13(1), or is there some subtlety which I have failed to see? If so, I apologise.
§ THE LORD CHANCELLORMy Lords, in relation to the last question of the noble Lord, I do not think it has made a nonsense of Amendment 15 and the new terms of Clause 13(1). The position which has necessitated the 2053 Amendment which I have moved is this: that in relation to the legal position under the Trade Disputes Acts 1906 and 1965—that is to say, the legal position as it was before the 1971 Act—it was not clear whether an act which Statute had declared not to be actionable, for example, inducement of breach of a contract of employment, could nevertheless constitute unlawful means or an unlawful act for the purpose of certain torts for example, indirect inducement to break a commercial contract. There were conflicting judicial dicta on this question, but the majority opinion seemed to suggest that an act declared to be not actionable could not constitute unlawful means for the purpose of indirect inducement to break a contract. The purpose of subsection (3), and thus the purpose of the Amendment with which your Lordships are now dealing, was to clarify the position and in effect Ito codify the line taken by the majority of judges. It deals in that way, purely as a matter of necessary clarification, with the traditional trade dispute immuinties. I do not think its existence will make a nonsense of the clause as a whole.
My Lords, I am grateful to the noble Earl, Lord Gowrie, for so generously acceding to the Government's proposal to move this Amendment. I am grateful to the noble and learned Lord, Lord Hailsham, for so readily saying that he had given his word and would stick to it, a course which I have met in him before, and which I hope will be duly reciprocated. As to the speed of movement between the Woolsack and the Government Front Bench, I hope to refresh my strength with a visit to my natis'e town of Llanelli during the long vacation where, as visitors to Twickenham will know, the Llanelli team almost always enables Wales to defeat England in international matches.
§ On Question, Amendment agreed to.
§ Then, Standing Order No. 44 having been suspended, pursuant to Resolution:
§ 3.15 p.m.
§ LORD SHEPHERDMy Lords, I beg to move that the Bill be now read a third time.
§ Moved, That the Bill be now read 3'.—(Lord Shepherd.)
2054§ LORD SHINWELLMy Lords, it may please your Lordships if I inform you that it is not my intention to speak at any length, but I cannot allow the Third Reading to pass without some observations. I am fully aware that according to tradition and the Rules of your Lordships' House on a Third Reading debate, one may address oneself only to the content of the Bill; one must not range far and wide. But there is something I must say.
My Lords, I noted a moment or two ago that my noble friend the Leader of the House and my noble and learned friend the Lord Chancellor expressed in the most generous terms their gratitude to the noble Earl, Lord Gowrie, and the noble and learned Lord, Lord Hailsham, who unavoidably is unable to make his presence felt this afternoon. I must confess to complete astonishment at the language which was used. "Generosity"; "gratitude"—for what? Only a few days ago it was our misfortune to listen to an altercation conducted in the harshest terms between the noble and learned Lord, Lord Hailsham, and the noble and learned Lord who sits on the Woolsack.
§ THE LORD CHANCELLORMy Lords, will my noble friend, Lord Shinwell permit me to intervene? If I may say so, I confined my expression of generosity to the specific Amendment which I moved. The generosity did not extend one inch further than that.
§ LORD SHINWELLMy Lords, I am very grateful for that correction, but nevertheless I am convinced that apart from this Amendment, the observations which I am about to make are relevant to the situation that presents itself. I repeat that only a few days ago we listened to a very harsh altercation conducted with the utmost severity, with language which at times appeared to me to be hardly relevant to the composure and the delightful atmosphere surrounding your Lordships' House. If I may use a vulgarity—and I ask the forgiveness of the House for the language—the noble and learned Lord, Lord Hailsham, tried to "take the micky" out of noble and learned Lord who sits on the Woolsack, but my noble and learned friend the Lord Chancellor conducted himself with the utmost ability. He never lost his temper for a single moment. Nevertheless the 2055 fact remains that the noble and learned Lord, Lord Hailsham, "tried it on" with all the tricks which I have been accustomed to hearing from him for many years in the other place, and which are now revived in your Lordships' House.
My Lords, let us come to the facts and the realities of the situation. It is a common expression to speak of the realities. What were they? The noble Earl, Lord Gowrie, assisted by the noble and learned Lord, Lord Hailsham, dealt with Amendment after Amendment, and sought to convince your Lordships' House that if this Bill passed, it would mean irretrievable disaster for this country—nothing less than that. They warned us over and over again. I listened to them. I have listened to every speech, and I took note of what was said. Of course, I do not believe them for a single moment, but I understood their intentions, their inclinations, their innermost thoughts. Where are we now? I always believe in people having the courage of their convictions. I have always tried to have the courage of my own convictions, although sometimes I have fallen by the wayside. Nevertheless, I believe everybody ought to have the courage of his convictions, whatever the consequences. I would love, I would delight, I would enjoy and indulge in the utmost euphoria if the noble Earl, Lord Gowrie, had the courage of his convictions this afternoon—in other words, took the action which he thought was right consistent with his convictions, with his principles and with all he said the other day. But he is not going to do anything of the sort.
So what does it amount to? Just this. I have said more than once since I joined that there is an almost embarrassing friendliness and courtesy displayed over and over again in this Assembly. I have not made any contribution to that courtesy, I admit. It is a matter of temperament; it is the way we are brought up—lack of education, no Eton, no Harrow, no Winchester. Although I was educated in three places—London, South Shields and Glasgow—I left school before I was 12. That is a misfortune. Oh yes, the courtesy is here, the friendliness and all the rest of it, but we have to consider intentions and inclinations and what is behind it all.
2056 I listened to the severity of the discussions and debates the other day and now I find noble Lords sitting on the Opposition Front Bench silent, reticent, reluctant to open their mouths, agreeing with everything. What does that mean? We just talked and talked the other day; we wasted our time. This side, that side, pro and con, and at the end we had to accept the decision of another place. We ought to have thought of that before we started; it would have saved a lot of time. I can imagine the kind of debates we might have had—academic debates, education, inflation, philosophy, the future of this country, the future of the world at large, the United Nations, Cyprus and the like—a variety of valuable debates. Instead of which we debated and argued almost in tones of anger, only to discover that we were wasting our time because we knew in the course of a few days that we dare not conflict with another place. So the noble Lords opposite will not have the courage of their convictions.
I am sorry that I appear to speak in harsh language, but it was not my intention. Let us accept the realities of the situation and in future not waste our time. This Bill had to go through, and for a very good reason. I would repeat what I have said more than once since I joined this Assembly. If your Lordships will forgive the repetition, I prefer consensus rather than confrontation; not always: it depends on the circumstances. But in the situation which now confronts this country of ours and its future, with all our thoughts and prognostications and apprehensions, I prefer consensus rather than confrontation. I wish noble Lords opposite would understand that and would realise that this Bill, fat from being revolutionary, has a content of moderation because, although it may still require emendation, it presents perhaps the only opportunity of promoting reasonable, decent, human industrial relations in our country. Although there are other problems confronting us which require a solution, improved industrial relations are the prerequisite of success for our country in the future. That is why this Bill has to pass. You now accept it because you must, and it is a good job for us all that it has to be accepted.
2057 On Question, Bill read 3a, with the Amendments, and passed, and returned to the Commons.