REMUNERATION, CHARGES AND GRANTS BILL (Hansard, 31 July 1975)

§ Lord HAILSHAM of SAINT MARYLEBONE

I gave notice to omit Clause 1, although for reasons which I w ill be developing I am not going to ask noble Lords to divide against it. But I explained last night—when, out of necessity, we passed this undesirable piece of legislation on the nod—that it would be necessary for me to explain to the House today, on the Question, Whether Clause 1 shall stand part of the Bill, that what is being done is contrary to the Constitution and contrary to the rule of law.

Yesterday, we were examining the policy of the White Paper. I made it clear that I do not believe that that policy will work because it is not adequate to the situation with which this country is confronted. Indeed, I venture to prophesy, as I did over the so-called Social Contract, that it would be dead and buried before long, and so this voluntary, or non-voluntary voluntary policy will be dead and buried before long because it will not work.

What I did not say, but what I say now, is that it is better than no policy at all; and no policy at all was what we were being served with up to and including the referendum and for a week or two after it. Just as this Government, hopeless and incompetent as they are, are better 1190 than no Government at all—and that is what we were given while Cabinet responsibility was shelved during the referendum campaign—it is a good deal better than Government by the Tribune Group would be. If therefore this were simply a debating society I would have voted against the package last night and I would be voting against the Bill today; but this House is not a debating society, nor is Parliament a debating society. Because this policy is better than no policy at all, and this Government are better than the Tribune Group or no Government at all, we do not propose to obstruct the policy and we do not propose to obstruct the Bill. However, I feel it my duty to analyse some of the constitutional outrages which particularly Clause 1 of the Bill commits. I did so last night at the end of a long debate in which there was no Division. It was perhaps pardonable that the House was not quite so full as it is at the moment, and I will therefore crave indulgence if something of what I say is the same as I said last night, although not even this morning is available in print.

This is a Bill, the avowed purpose of which is to deprive a class of employees or workpeople of their legal contractual rights. Clause 1 has no other purpose at all; it is to deprive a class of workpeople of their contractual rights at the option of the employer. That is the only thing it does. The employer need not deprive them of their rights. He can observe his contract as he is legally bound to do, but in certain circumstances he is entitled, without remedy for the workmen, to deprive them of their contractual rights at his option. A strange Bill, one might think, for a Labour Government to be introducing at the end of a Summer sitting.

One rather peculiar fact about Clause 1 which I did not mention last night, but which I owe to the diligence of a noble and learned Peer on the Cross-Benches who drew it to my attention, is that it applies only to contracts entered into before the commencement of this Act. I will assume for this purpose that the commencement of the Act and Royal Assent will be at some time within the next 24 hours. That means that if a contract was entered into today, or before today, the employer at his option can deprive the workman of his contractual 1191 rights under the contract, but if he forms a new contract tomorrow, even though it be in defiance of the White Paper, he will be bound in law to keep his contract and Clause 1 will have no application to it. I am not surprised that the noble and learned Lord the Lord Chancellor is not present during the discussion of this particular piece of legal anomaly. I expect his silence on the subject of this outrage against the rule of law will be as deafening as his silence and absence on the subject of the "Clay Cross" Bill. That is what Clause 1 does.

Now let us look for a moment at the principle on which it does it. Acts of Parliament in this country, Statutes, are normally passed through three readings in each House, and in each House they can be amended in Committee and on Report. But a White Paper cannot be amended in Committee or on Report and has no legal effect whatever even though it has had the approbation by Resolution of one of the two Houses of Parliament. Now, according to Clause 1, we are to deprive workpeople of their legal rights—and here I quote it— Where an employer limits the remuneration paid by him to any person for any period…and the limitation is no greater than necessary to keep the remuneration within the limits imposed by the policy set out in the document…(Cmnd. 6151) he shall not be liable for breach of contract by reason only that the remuneration is less than would, apart from this section, be payable under any agreement entered into before the commencement of this Act. In other words, what is depriving the workman of his contractual rights is a document which is not an Act of Parliament. It has not even had the approval of both Houses of Parliament. It has not gone through three readings. It has never been capable of amendment and it has no legal force at all. I ventured to call this another nail in the coffin in the rule of law, and that is what it is. I am going to discuss shortly the fact that it is not the only nail in the coffin of the rule of law which has been driven in by this Government.

When he spoke on the "Clay Cross" Bill, the noble Lord the Leader of the House said that we all believe in the rule of law. That is what he said, and I have no doubt that when he said it he was being perfectly sincere; but it is being 1192 borne in upon me in one piece of legislation after another that we are not all agreed on the rule of law. We are not all agreed about what we mean by the rule of law, We are not all agreed about Clay Cross as being a breach of the rule of law; we are not all agreed on the "Trade Union" Bill as being in accordance with the rule of law. We are not, as a vote in another place yesterday showed only too plainly, in agreement as to how pickets should behave in accordance with the rule of law. We are not all agreed, as has been shown by prominent Ministers, on the way that the Judiciary should be treated in accordance with the rule of law.

The rule of law, according to my belief, demands that the law should be changed only by Act of Parliament. The effect of Clause 1 of the Bill is to change it by Resolution of one House only, in accordance with the terms of a White Paper which is in principle unamendable. I should have thought that was enough to damn it in the eyes of any constitutional lawyer. But it is in fact much worse than that, because I now move from subsection (1) to subsection (2). I said that the object of the Bill was to deprive workmen of their legal rights at the option of the employer in respect of pre-existing contracts but not subsequently-made contracts, in accordance with the limits of a document which has never had Parliamentary approval in the ordinary or proper way. But I greatly underestimated and understated the case against this clause, because at that earlier stage I was looking only at subsection (1) and not at subsection (2).

This is not even a document which has the support of a Resolution of one House only; it is not even the White Paper which is to deprive the workmen of their legal rights, if this Bill becomes law, because, if I may quote from subsection (2), it reads: If Her Majesty at any time causes a document to be laid before Parliament which sets out limits in addition to or in substitution for those so imposed the Secretary of State may by order made by statutory instrument add or substitute in subsection (1) above a reference to the limits set out in that document, and that subsection shall then have effect accordingly; and similarly with any further such document laid before Parliament by command of Her Majesty. Let us just look at what that means. It means that under Clause 1 of the Bill a 1193 workman is to be deprived at the option of his employer of his legal contractual rights, not merely in accordance with the document which we have seen, but in accordance with an unspecified number of subsequent documents which not only have we not seen but which have not even been drafted or been made. And at the option of whom?—at the option of the Secretary of State for Employment in the Labour Government. This is what we are reduced to passing—a Second Reading "on the nod" last night and in the course of 24 hours today a document which deprives people of their legal rights in accordance with a document which we have not seen and cannot see because it has not been made, and in accordance with any subsequent series of documents which the Secretary of State may lay before Parliament at some subsequent stage. And even they cannot be amended and even they can be discussed only if somebody thinks to put down a Prayer against them when the Negative Resolution procedure applies, as we see from a subsequent section.

Even that does not conclude the matter, because we now look at subsection (5). One would think, of course, that if we really believed in the Constitution and if we had the same common ground rules about the rule of law as the noble Lord the Leader of the House suggests that we have, even if we were committing the outrages which I have outlined, we should at least allow the courts to decide what the document meant. It is not very easy to understand. Of course, the appendix to the document was drafted by the TUC and says that the £6 is a fiat rate of universal application, in the body of the document—I believe it occurs somewhere in the first six paragraphs—it is said that the £6 is a maximum which is subject to negotiation.

It would take a very great number of judges to reconcile these totally inconsistent statements. Perhaps that is why we are served up with subsection (5), because that subsection takes the business away from the courts. The courts must not be allowed to decide what this document means at all. Of course, we do not like the courts, do we? We do not like them so we ought not to bring the courts into industrial relations, ought we? And so we are taking away the rights of workmen under their contract by virtue of a docu 1194 ment which is not a Statute, and by virtue of any substitute document which, subject to the Negative Resolution procedure, the Secretary of State may at some future date decide to lay before Parliament. We are taking rights away from them, and the courts shall not even be allowed to say what the document means.

Who is to be allowed to say this? Need I say that it is the Secretary of State himself? It is Government not of the people by the people for the people, but Government of the people by Humpty Dumpty for Humpty Dumpty, who makes words mean what he says they mean—a habit which led him, I must say, in the book to a terrible fall And all the King's horses and all the King's men Could never put Humpty Dumpty together again. And why is all this necessary? Of course, it would have been perfectly simple to annexe, by way of Schedule, the White Paper to the Act, in which case it could have been amended. That would have been a very bad precedent, but it is a precedent which the Labour Government and, on one unhappy occasion the Conservative Government, have followed. But they have not even done that. Humpty Dumpty is the author of the document; Humpty Dumpty will be the author of an indefinite series of documents; and Humpty Dumpty is to say what the words mean. And this is called the rule of law in which, as the noble Lord the Leader of the House says, we all believe so sincerely, do we not?

We dislike the courts, and so they are being left out of the matter altogether, and no doubt the courts will be very grateful for this small mercy. But if we think that we are doing this with any good intention, I can say only that it would have been very easy to spell out the policy in the Statute, in which case it could have been debated, it could have been amended and it could have been passed in the proper way as a Statute. But then, of course, it would have been a statutory policy, would it not? And Mr. Foot, Humpty Dumpty himself, would have left the Cabinet, and so would Mr. Benn have left the Cabinet. So we are made to enact this degrading piece of legislation in order to keep Mr. Foot and Mr. Benn in the Cabinet and not because it is necessary for the Government policy. That is all I have to say. 1195 It is a contemptible Bill. It is an unnecessary Bill, even on the assumption that this unworkable policy would work. I leave it to your Lordships to say whether I am right or whether I am pusillanimous in my desire not to obstruct the Government or their policy because I am not going to divide against it.