§ 3.6 p.m.
§ Moved, That the Report be now received.—(Lord Shepherd.)
§ Lord HOUGHTON of SOWERBY
My Lords, before we pass to the first Amendment I want to ask my noble friend the Leader of the House whether he has any Statement to make on the 976 business for today. When we were inquiring about the business for today we understood that substantial Amendments would be dealt with on Third Reading. We have seen many of the new Amendments for the first time this morning, and have had little opportunity to study their full impact or, indeed, to consult colleagues about them. May I ask my noble friend whether he will make a Statement about the business for today.
§ Lord SHEPHERD
My Lords, the business is very much a matter for your Lordships' House. I appreciate that there were difficulties last week in terms of printing, but the Amendments were put down according to our normal procedure. It is a matter of regret that some of the Amendments would be known to certain noble Lords only today. So far as I am concerned, I had certain knowledge of some Amendments only late on Friday, and knowledge of other Amendments only this morning. The Amendments were put down; there can be no criticism as to the timing according to which they were put down, and it is a matter which your Lordships' House must decide. They are the controllers of their own business. If there are difficulties, we have overcome them in the past, but I would suggest that we see how we proceed in that sense. I appreciate the difficulties, but they were very difficult to overcome last week.
§ On Question, Motion agreed to: Report of Amendments received accordingly.
§ Clause 3 [Amendments of the principal Act]:
§ The LORD CHANCELLOR (Lord Elwyn-Jones)
My Lords, I should explain that the reference for the first Amendment should be page 3, line 43, and not line 44.
§ 3.8 p.m.
Baroness ROBSON of KIDDINGTON moved Amendment No. 1:
Page 3, line 44, at end insert ("or is nominated for specification by members of an identifiable class (whether or not parties to the agreement) indicating their desire to be so specified by a majority vote cast in a secret ballot of members of that class conducted under the supervision of an independent agency jointly agreed by all the parties ".)
§ The noble Baroness said: My Lords, Amendment No. 1 which I have the honour of moving today replaces the 977 manuscript Amendment tabled during the Committee stage by the noble Lord, Lord Lyell, and subsequently withdrawn after a short debate. I hope that the wording of the Amendment as it now stands will meet the objections raised about the drafting problem involved in the Amendment moved by the noble Lord, Lord Lyell. I have no hesitation in tabling it in its revised form in view of the general support it received in Committee, particularly from the Benches opposite.
§ Before we deal with the merits of the Amendment I think it would be useful for the purposes of the debate to say what the Amendment does not do. First, it does not conflict with the Government's Election pledges. Secondly, it in no way resurrects any part of the Industrial Relations Act 1971. Thirdly, I believe it does not provide a means for employees to avoid belonging to a union. These are three things it specifically does not do.
§ Let us look at what the Amendment attempts to do, at its positive aims. Its major aim is to enable employees in a common interest group to be represented by a union of their own choice. Employees pay union subscriptions out of their own earnings, and for that reason alone they should be entitled to have a major say in whom should represent them. In addition, we have in our society groups of people, groups of employees, who have particular skills, training and aptitudes, who feel that they cannot be adequately represented by large, multidisciplinary unions. This applies in particular to the professional engineers and scientists, as was pointed out on Committee stage, who feel strongly that they cannot be adequately represented by unions dominated by either clerical grades or craft workers. This is not a theoretical objection. There are sufficient examples of professional engineers and scientists represented by conglomerate unions who feel that their special interests are not receiving the kind of attention they should.
§ We must also remember that among this group of people union representation is a fairly new phenomenon. They tend by nature to be individualists, and they have taken rather slowly to the 978 idea of collective representation. Many of them subscribe to a code of practice or code of professional conduct, and prefer to be grouped together with people of their own kind and their own beliefs. None of us believes that there is something wrong in this: it is a natural instinct of human nature to group together with people of like minds.
§ Over the last few years the drive towards collective representation of employees has increased, and, incidentally, this is a principle with which I agree. The passage of the Amendment Bill now before the House will give further impetus to the drive towards collective representation. This is why the problem so far as this group of employees about whom I am speaking is concerned is a new problem in 1975; it did not exist to the present extent in 1971. I am speaking about a minority group of people, but they are important and are people who are entitled to look to Parliament for the protection of their interests. If they cannot look to Parliament for that protection, where can they look and where is there another institution to guard the liberties of individuals in this country?
§ I believe there are some noble Lords who see this Amendment as an opening for the creation of splinter unions. That is certainly not my intention, and I do not think that noble Lords need fear it will give encouragement or protection to splinter unions. The safeguard against the danger is contained within the new Clause 5A to Section 30 of the principal Act, which was moved during the Committee stage by the noble Lord, Lord Jacques. Lord Jacques's Amendment ensures that the parties to a union membership agreement have a major say in identifying the classes referred to in my Amendment, and the parties to the membership agreement would have no difficulty in stopping the creation of splinter unions.
§ It might also be said by Members of this House that my Amendment is duplicating the safeguards already achieved by those who sponsored the addition of Schedule 4A to this Bill. My answer is that this Amendment seeks to put the decision-making where it should be; that is, with the groups of employees primarily concerned. The implementation of the procedure in my Amendment may render 979 the procedure of Schedule 4A less necessary, but surely we would all hope that referrals to the Secretary of State are kept to a minimum. I believe that my Amendment could ensure that. On the other hand, Schedule 4A will still provide the very necessary and useful long stop safeguard for people within the trade union movement, and it will certainly be a most useful final reference in any cases where the parties to an agreement do not allow the professional groups to have a vote on whom they wish to represent them. So I do not think that my Amendment and Schedule 4A impinge on each other but are complementary, and I believe that the rather laborious procedure covered by Schedude 4A will have to be resorted to less frequently if your Lordships should see fit to accept my Amendment. I therefore strongly commend this Amendment to your Lordships' House, and beg to move.
§ 3.15 p.m.
§ Lord JACQUES
My Lords, as the noble Baroness has indicated, this Amendment is similar in intention if not in drafting to that moved by the noble Lord, Lord Lyell, at the Committee stage. The intention, as I understand it, is to allow professional and technical employees a right to say that they will be represented under any closed shop arrangements only by unions representing professional and technical employees. We do not dissent from the idea that it is often best that professional or other specialist employees should be appropriately represented by a separate union. But our major difficulty is that this Amendment does not deal only with the question of professional or specialist workers; it extends a unilateral right to opt out of collective bargaining arrangements to every single small union or splinter group, or group of employees of any kind.
Before developing my main argument against the Amendment, I would deal with some of the drafting difficulties. The Amendment refers to "an identifiable class", but does not say who is to do the identifying. By implication, it is of course the employees who will form the class. But, if this is so, it will be confusing because elsewhere in the Bill, especially in the definition of a "union membership agreement", an identifiable class is a class which is specifically identified by 980 the parties to the union membership agreement. Furthermore, the Amendment provides for an independent agency to supervise a ballot of the self-identifying class of individuals. It says that all the parties have to agree who shall be the independent agent to conduct the ballot, but says nothing about what happens if there is no agreement. Presumably it comes to a full stop. The Amendment does not say what will happen if there is no agreement; and if there is agreement can it not then be reasonably presumed that if the parties can agree upon this matter they could have agreed upon special accommodation for the people concerned, without this Amendment?
Those are genuine difficulties in drafting. But the major difficulty is the question of confining this Amendment's effects to the bona fide case where separate representation is needed. We cannot accept an Amendment which enables any splinter group to perform a unilateral declaration of independence, and to overthrow established free collective bargaining procedures; and that is what this Amendment does. I should have thought that our recent experience on the railways would be sufficient warning against this kind of Amendment. There we had a restructuring of railway workers' wages dealt with by arbitration. Some signalmen were dissatisfied. There was an immediate review by the employer and the official unions concerned. They went as far as they possibly could to appease the signalmen and made improvements in their wages.
Nevertheless, the members of a splinter group of signalmen were able to close lines week after week and gravely to inconvenience the public, render other employees, representing more than 90 per cent. of the labour force, unable to do their duties, and lose British Rail millions of pounds and impair their ability to pay decent wages. If this Amendment were accepted, then the railwaymen working in the Greater London area, or in Kent or on the Birmingham line, the railwaymen in big boxes or in small boxes, could all identify themselves as separate classes and claim to be treated separately in the union membership agreement.
In every one of our industries there are numerous classes of people, each of whom 981 have different duties and different responsibilities. It is natural that they perhaps tend to value their contribution a little higher than their colleagues or their employer might value it. This Amendment would encourage them to insist upon recognition in a union membership agreement, and that is one step towards recognition by the employer for negotiation purposes. A small group could hold the public to ransom until they got what they wanted; and what they usually want is to get, to maintain or to increase a wage differential. This Amendment could create chaos in our industrial relations and could do grievous harm to our economy.
Noble Lords may ask: why should we not take this Amendment and try to confine it to professional bodies representing professional workers? This is just not possible. There is no definition so far of what constitutes a professional employee, and certainly none which would make any kind of sense in legislation. The last Administration had the same kind of difficulty and eventually resolved that it could not be put into legislation, so they adopted a non-statutory code of practice.
In this connection, I would direct the attention of the noble Baroness to paragraphs 21 to 23. That was the solution adopted by the last Administration; it is also our solution. That solution still holds good, but we have gone further and amended the Bill so that, on almost any grounds, almost any group of people can be excluded from a union membership agreement. We have amended the Bill so that any union which is not a party to a union membership agreement can be specified as a union to which the workers can belong. Any union within an establishment can ask an employer to be specified within the union membership agreement. We have made it possible for both the employer and the union to act in this way. The question then is: will they do so? I would suggest to your Lordships that the professional employees are those closest to management. A good professional employee is scarce, and consequently there is not the slightest likelihood of an employer alienating his professional staff; he is more likely to be acting strongly on their behalf.
982 Furthermore, I would draw your Lordships' attention to the Employment Protection Bill, for which a consultative document has been issued. We expect the Bill to be published some time this week, and it is specifically provided in it that a union which cannot get recognition from an employer will have the right to appeal to the Conciliation and Arbitration Service. We feel we have gone a very long way to meet the point of view of the noble Baroness, but we are not prepared to invite the chaos which this Amendment would invite. I hope that with that explanation the noble Baroness will see her way clear to withdraw this Amendment.
§ Lord BYERS
My Lords, I am grateful to the noble Lord for his explanation and for confirming, as I hope he did, the point made by my noble friend Lady Robson that this is not in any way a wrecking Amendment or one designed to create splinter unions. It represents a genuine desire to get protection for professional unions, and I gather that the noble Lord does not dissent from the idea of separate unions for specialist purposes. May I ask the noble Lord this question before the matter is taken any further? Does he consider that, with the Employment Protection Bill and the other measures that he has outlined, the specialist unions are properly protected in the sense that we wish to achieve? I quite understand the difficulties of drafting—and of course we have no drafting facilities at our disposal—but all we seek to do is to ensure that there is not likely in future to be a conflict of interest between the ethical standards of the professional unions and others with whom they have to work.
§ Lord DOUGLASS of CLEVELAND
My Lords, I listened with interest to the mover of this Amendment and could see very little change from the Amendment which was put forward at Committee stage. I should like to thank the noble Lord, Lord Byers, for his explanation of the real desire behind this Amendment. He will remember that none of us in this House could define a "professional", and until we get deeper into this subject we shall not really understand what the noble Baroness is trying to achieve.
983 I should like to support what my noble friend Lord Houghton said about the lack of time available to discuss these Amendments, or even to understand some of them, because there is not enough time even to understand the good things in them—and there are some good things in this Amendment. For instance, it is suggested that there should be a secret ballot. I wonder whether the noble Baroness would develop that point, because I should like to know how she wishes to see a secret ballot conducted. At the present time there is a proportional ballot. I am never quite sure how secret it is, whether it is conducted in the right way, whether it could be improved, whether a union ought to carry the fairly heavy cost of running a postal ballot, whether the Government should conduct the ballot, or at least pay for its cost if it is independently conducted, and whether at the place of work there should be a really secret ballot, and who would supervise it. I should be very interested to hear from the noble Baroness on these and similar points, because I should like to support her concerning many aspects of trade union life. But can she define what she means by "a secret ballot" and suggest how it is to be conducted?
§ Lord LYELL
My Lords, I should like to add my support for the noble Baroness, because I moved a similar Amendment on Committee stage. I think the noble Lord, Lord Jacques, was possibly a little less than fair to the noble Baroness regarding the Amendment. It was said that this Amendment might have three effects, but one thing the Amendment would not cause is fragmentation. The noble Lord, Lord Jacques, mentioned the example of the National Union of Railwaymen and the signalmen who are members of that union. I think that is a totally different example, because the signalmen were, and still are, members of the National Union of Railwaymen and they were a splinter group, which is a concept which leads to much confusion for many of us. As I understand it, the purpose behind this Amendment is not to force under the umbrella of a larger union a group which is already in existence. The example presented to us by the noble Lord, Lord Jacques, was of a group which was already within a larger unit; namely, the National Union of 984 Railwaymen. In conclusion, the noble Lord, Lord Jacques, said that a union could be excluded from a union membership agreement. I wonder whether the assurance given by the noble Lord covers this Amendment. Perhaps he could explain that to us.
§ Lord ALEXANDER of POTTERHILL
My Lords, I spoke in Committee on what seems to me to be a simple principle. My concern was local government. As I see it, the simple principle is that there are certain minority unions which are an essential part of management—for instance, the chief executive officers of local authorities and similar bodies. My purpose then—and I think it is the purpose now—was to secure that they should not be put into a position in which they are compelled, without an option, to belong to a larger union; namely, NALGO, but it would apply in other cases also. If a closed shop were established, it would put them into an impossible position. If I have understood correctly the noble Lord, Lord Jacques, he said that he accepts this principle. Therefore, may I ask him how the Bill provides for the protection of these people?
§ Lord COOPER of STOCKTON HEATH
My Lords, if I may comment on the last remark of the noble Lord, Lord Alexander of Potterhill, for years every town clerk has been a member of NALGO. There is no conflict here; men are capable of doing their job of management and squaring it with their trade union responsibilities. The people for whom these pleas have been made are those in professional organisations who have not had trade union representation. They are now raising the point because this Bill is being considered. The noble Lord, Lord Lyell, said that it was a case of people seeking to maintain representation. The truth is that the people who are pressing for this Amendment have never had negotiating representation. They have been members of a professional body and have done a first-class job of work as a professional body. To the extent that those in local government have been represented in the past, they have been represented by NALGO and they can continue to be represented by NALGO. The facilities for their representation are available. If the Amendment succeeds, it will be a case of fragmentation.
§ Lord ALEXANDER of POTTERHILL
My Lords, by leave, if town clerks, who are usually chief executive officers, were members of NALGO and if in an authority NALGO called for a closed shop and NALGO then went on strike, what would be the position of the town clerk? If he went on strike, he would be utterly in conflict with his professional responsibilities, which would be destructive of local government. If he refused to go on strike, would it not be true that NALGO could expel him and that therefore he would be dismissed without compensation? It is a simple, direct question.
§ Lord POPPLEWELL
My Lords, may I ask the noble Lord to be very careful about accepting the principles behind this Amendment. My noble friend has pointed out the principles which are embraced so far as drafting is concerned. However, from time to time in industry a section of men may be rate-fixers for a job, or they may be supervisors. Instead of being classed just as ordinary employees, sometimes they feel that the nature of their job gives them a certain professional status; they feel that their skills are such that they are a little above those of ordinary working people. If, however, one accepts the principle of small, fragmentary groups who feel like this, one will certainly make it extremely difficult for the employer, because he will have many different organisations to meet when he wishes to enter into negotiations. May we take as an example the mineworkers and their deputies. They are very skilled, professional people. Their union, the Union of Deputies, is accepted by the National Union of Mineworkers. Arrangements are made so far as negotiations and ordinary trade union activities are concerned. They represent a major group within the industry, and no difficulties are encountered. However, one knows of small sections of people who feel from time to time that they are entitled to be graded in a different way, some of them equal to professional status. While one can understand that, unions make allowances for these people so far as conditions and wages are concerned.
In the interests of peace within industry, may I ask the noble Baroness not to press her Amendment. I am sure that in the case of good employers and good relations, where these difficulties arise they 986 are reasonably dealt with under a code that is understood by the people who are engaged in the day-to-day operation of keeping peace within industry.
§ 3.38 p.m.
§ Lord HOUGHTON of SOWERBY
My Lords, from my very long experience of trade unionism among the professional classes, I can assure your Lordships that, on the whole, they are able to look after themselves. However, we are dealing with a closed shop situation. I must emphasise once again that this Bill is not changing the rules or the law regarding closed shops. A closed shop can be brought about under this Bill or by any other Act of Parliament only by agreement between the employers and the representatives of the staffs concerned.
Therefore, if in the case cited a moment ago by the noble Lord, Lord Alexander of Potterhill, a local authority agreed to a closed shop situation among the employees, both professional and otherwise, in its service, it would reach agreement about the conditions of that closed shop; who should be included within it and who should be excluded from it. If the staff asked the employers to agree to a closed shop which should cover the whole of the supervisory, administrative and executive staff of the local authority and the local authority conceded a closed shop situation to the union, it would do so in the full knowledge that the closed shop would cover its senior officials. It would have to weigh up in its mind exactly what obligations it was placing upon its employees and the consequences which the local authority and public business might suffer in the event of a dispute. Moreover, there are statutory safeguards of the position of senior officials of local authorities. Some of them cannot be dismissed without the sanction of the Secretary of State.
Therefore, I do not believe that this is a situation about which your Lordships need feel any anxiety. It is not a new problem. With great respect, in debating this Bill I think that we are in danger of raising issues as though they were new issues when, in fact, they are old issues that have been dealt with for many years by traditional and conventional practices through the normal negotiation machinery. If a professional group in any organisation seeks to identify itself for separate organisation—for example, 987 to belong to a professional body or an organisation catering for professional classes—it is very unlikely indeed that any closed shop situation would seek to compel it to join another union if it wished to exercise its right to belong to another one. Indeed, I think many of these difficulties—if they have arisen at all— have been overcome in an amicable way.
My final caution is this. The 1971 Act was an attempt to deal by legislation with many things, and we know how disappointing, to put it mildly, that attempt was. Let us be careful that we do not introduce into this Bill new causes of difficulty, new causes of conflict and provide another experience of how mistaken we can be in trying to provide, by statutory means and by legislation, for all situations in industrial relations, because I am sure that if we do we shall fail again.
§ Lord LEE of NEWTON
My Lords, when the noble Baroness moved her Amendment I thought she was underrating the progress that professional and white collar workers in general have been making in the last few years. She suggested that there are now different conditions from what there were in 1971. In fact, I should be very surprised indeed if the white collar and professional workers had not expanded more rapidly than any other single section of the working population of this country. Certainly, the affiliations to the TUC are far and away greater in the area which the noble Baroness was discussing than in any of the manual sectors. Therefore, I think she tends to underrate their ability to organise and the fact that they have been making enormous progress, which I am very pleased to see. I believe that the TUC Congress benefits from the new affiliations.
Another vital issue which we should look at is the fact that within the last few years one of the greatest curses in our industrial relationships—namely the demarcation strike—has practically been done away with. At one time the issues raised when, for instance, one raw material was exchanged for another and an argument arose about who should drill a hole and so on, presented fantastic problems which were irritating in that they did not contain any very great principles, and yet they plagued us enormously. I should have thought that 988 if we introduced the kind of Amendment which we are now discussing we would again encourage the kind of sectionalism which would result in a resurrection of the demarcation dispute, with all the background that goes with it.
Again, on this same theme, sectionalism is becoming utterly rampant. To take the car industry as an example, because of the peculiarities which we now see in the productive processes 20 men can hold up 20,000 others. This sectionalism is spreading and we should try to find an answer to the problem, because a lot of these small sections are now using powers in a disgraceful way and are thereby causing hardship to huge numbers of their colleagues, over whom, by the nature of their operation, they are able to hold these powers. If we do anything to encourage that kind of sectionalism we are taking a retrograde step, because without any doubt those peculiarities, which arise from the new engineering developments and productive methods which are now coming into operation throughout industry, will give to small but vital sectors enormous power over huge numbers of people. In fact, to accept this Amendment will encourage that kind of sectionalism which is at present causing great distress throughout many of our industries.
§ Lord SHINWELL
My Lords, I doubt whether it was the intention of the noble Baroness to cause confusion when she moved this Amendment, but having heard some of the speeches of my noble friends it seems to me that we are quite capable of causing confusion without her assistance! I have listened carefully to the speeches made by my noble friends Lord Houghton of Sowerby and Lord Lee of Newton. I am open to correction, but my noble friend Lord Houghton seemed to indicate that if there is an agreement about a closed shop, it is possible to have members representing what might be called the lower grades as well as people associated with professional organisations, such as architects, accountants and the like. In other words, within a closed shop one can have dustmen alongside architects and accountants who all belong to different organisations. My noble friend Lord Lee seemed to indicate just now—and he will correct me if I am misinterpreting his remarks —that such a situation might lead to 989 demarcation disputes. Of course we are anxious to avoid such disputes, because demarcation disputes—otherwise known as interunion disputes—are often the cause of turbulence.
§ Lord LEE of NEWTON
My Lords, I do not know of a demarcation dispute involving an architect and a dustman, but my noble friend recalls as well as I do the problems of the shipbuilding industry, where we have practically obliterated the demarcation dispute by an amalgamation of trade unions and they agree internally as to who does which job.
§ Lord SHINWELL
My Lords, it seems to me that everything depends on the definition of "closed shop". What is meant by a "closed shop"? First, as my noble friend Lord Houghton remarked, there has to be an agreement between those who are regarded as employers, be it a local authority or an industrial concern, and the representatives of the trade unions engaged in the local authority or industry. I see no difficulty if there is a closed shop and an agreement has to be reached, and problems occur because some who occupy what might be called the higher grade positions object to joining, say, the National Union of General and Municipal Workers or the Transport and General Workers' Union and prefer to remain in the professional organisation with which they became associated immediately they became qualified in that profession.
Let us be quite clear what we mean by a "closed shop". There have been voluminous arguments and debates on this subject, and I always understood that it was a closed shop where agreement was reached and where a number of trade unions could be associated with that shop—not one single union. I am as much concerned as anyone about the trade union movement and its progress, although it is a long time since I was officially associated with it. But it would seem to me invidious to demand that somebody occupying, say, the position of the noble Lord, Lord Alexander of Potterhill, as town clerk should be compelled to join the National Union of General and Municipal Workers.
If I may say so with respect to my noble friend, there appears to be no 990 affinity, and if we want to avoid turbulence and disputes and disharmony there must be affinity of some kind. One can obtain much more affinity by reaching an agreement so that the dustman belongs to the Transport and General Workers Union—I am handing over an additional member to my noble friend!—whereas the town clerk can be a member of a professional organisation or NALGO if he likes. So I ask my noble friend Lord Jacques, who knows all about these matters—or so I gather from his innumerable speeches on the subject— and he happens to be the Minister in authority on these matters at the moment, to define as accurately and meticulously as is possible in the circumstances, what is meant by a "closed shop"?
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I do not want to intervene at any length, but wonder whether the noble Lord the Leader of the House would agree that on Report stage we need not have a repetition of the entire debates we had on Committee. The Amendment moved so eloquently by the noble Baroness, Lady Robson of Kiddington, is a variation on a theme which we discussed rather fully on Committee. No doubt the noble Lord, Lord Jacques, will wish to reply to the debate, if he gets leave from the House. I rather understood from the noble Lord, Lord Byers, that it was possible, at any rate, that there would not be a Division on this particular Amendment. I am wondering whether we are not making rather heavy weather of this.
§ Lord SHEPHERD
My Lords, it is not for me to say whether we are making heavy weather of this matter. I see the noble Lord, Lord Home of the Hirsel, and the noble and learned Lord, Lord Hailsham of Saint Marylebone, who have been Leaders of your Lordships' House for quite a number of years. They know the difficulties we always reach when we take Report stage on contentious matters. I am not certain that we have made heavy weather of this. I certainly want to make progress. If the House so wishes, perhaps my noble friend Lord Jacques could now deal with it, but I would not wish to deny any Members of your Lordships' House the opportunity of putting points of view on matters of great moment.
§ 3.53 p.m.
§ Lord JACQUES
My Lords, with the leave of the House, I shall deal only with the questions directed to the Government. First of all, the noble Lord, Lord Lyell, questioned whether the Amendment in fact encouraged splinter groups. One must distinguish between the intention and what an Amendment actually does. This Amendment encourages splinter groups, because it allows any class to identify itself and to insist on being recognised in the union membership agreement. The noble Lord then said, "But what if they are also members of a bigger union?" My answer to that is that the Amendment discourages them from being members of a bigger union, and says, "You will be able to get all you want in your own little splinter group. You will get recognition in the union membership agreement".
My Lords, I was asked by the noble Lord, Lord Alexander, how this Bill protected professional employees. It protects them in two ways. It is provided in the Bill that the parties to a union membership agreement can exclude any identifiable class they wish, and it goes on to say that they shall determine what shall be identifiable. For example, they can exclude all who do a certain kind of work, or who are members of a certain association, or members of a certain union. They are left completely free to identify the class. Secondly, the Bill provides that the parties to a union membership agreement can agree that some other union, not a party to the agreement, shall be recognised for the purpose of the union membership agreement. In that connection we feel that we have gone a long way.
My Lords, I come now to the point raised by the noble Lord, Lord Byers. I think the noble Lord put his finger on the hub of the matter. I believe that the best protection is in the Employment Protection Bill. We say there that if any trade union cannot get recognition by an employer, it has the right of going to the Conciliation and Arbitration Service to get a decision. That is going as far as one can go. Between now and Third Reading, the noble Lord should have access to the Bill itself.
§ Baroness ROBSON of KIDDINGTON
My Lords, despite the fact that some of 992 the debate this afternoon on this Amendment centred on the wording of the Amendment itself, I felt that I was entitled to raise it again, and that I was right to do so. I feel this because of the interest generally in this problem that has been shown in this House, and it is a difficult problem to solve. I should like to say a special word to the noble Lord, Lord Douglass of Cleveland, who seemed to have some problem about a secret ballot. To most of us living in this country, the secret ballot is a perfectly comprehensible system. I believe that in industry it would be difficult to find an independent body whose integrity was doubted by the members themselves, such as the Electoral Reform Society or the Industrial Society. I can see no problems arising from the secret ballot.
My Lords, I am heartened by the promise of the Employment Protection Bill which was given by the noble Lord, Lord Jacques, when he assures us that some of these problems which have been raised in the debate today will be taken care of. In view of the fact that this Bill will be with us within a very short time, I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ 3.55 p.m. Lord GOODMAN moved Amendment No. 2:
§ Page 4, line 19, at end insert—
(" ( ) After section 29(7) of the principal Act (meaning of trade dispute) there shall be inserted the following subsection—
(8) Notwithstanding anything contained in this section a dispute over the publication or non-publication of an article (whether for reward or otherwise) shall not be a trade dispute." ").
§ The noble Lord said: My Lords, I wonder whether I might ask the leave of the House, and particularly the noble Lord the Leader of the House, as to the mechanics of moving these various Amendments. I put down one substantial Amendment in one piece. The skill of the officials of the House neatly divided it up into various sections. I think it would be convenient if I address my remarks to the various Amendments reconsolidated as one piece so they will at least be spared the possibility of my making more than one speech. If that is a convenient course to adopt, I should like to adopt it.993
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, is it not a fact that, if this is a paving Amendment in a series, it is convenient that they be discussed together and any Division should be taken on the paving Amendment. On the other hand, if the Amendment is separate, and deals with a separate subject matter, then it ought to be moved, debated, and if need be, divided on, separately.
§ Lord SHEPHERD
My Lords, the noble and learned Lord, Lord Hailsham, is quite correct. I have looked at these Amendments. With great respect to the noble Lord, Lord Goodman, I must say that Amendments Nos. 2 and 3 can hardly be construed as paving Amendments to Amendment No. 5 which. I think, is the first of the paving Amendments to the substantial Amendments Nos. 23 and 11. Therefore, I would suggest that it would be for the convenience of the House if we first dispose of Amendments Nos. 2 and 3, and then deal with the remainder separately.
§ Lord GOODMAN
My Lords, I cannot say that these are paving Amendments. It would require a committee of constitutional lawyers, sitting for some months, to determine whether or not they were. But it would be extremely convenient if I could deal with the Amendments, other than Amendment No. 2, for a rather special reason. If in consequence of what happens to the other Amendments, there is a certain result ensuing, it may well be that I should wish to withdraw Amendment No. 2. So if it is convenient to take Amendment No. 2 last, this might mean a saving in time.
§ Lord SHEPHERD
My Lords, the noble Lord, Lord Goodman, may be well used to having the best of both worlds, but in this House I do not think he can so do. We should be in an impossible position if the noble Lord were to select which Amendments he decided to discard according to the way the debate takes place. The noble Lord is aware that there is yet another stage to this Bill; namely, the Third Reading. He can review the position after Report. He can leave his options open, and then decide what to do on Third Reading. But I do not think the noble Lord can ask the House to depart from our regular practice of taking those Amendments together.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I think that is correct, if I may just say so. If the noble Lord, Lord Goodman, wants to air his Amendments and then withdraw them at this stage, he can do so, but I suggest the right course would probably be to wait till Third Reading.
§ Lord GOODMAN
My Lords, I fear that this precise legalism—which does not arise in the slightest degree from my desire to have the best of all worlds, a desire shared, 1 may say, by everyone present, but simply arises from a desire to adopt the most convenient course— means that what I shall now be driven to do is to move Amendment No. 2 and, if necessary, press it to a Division. I then find myself in a position where I unnecessarily move an Amendment and press it to a Division. If this is what the Rules of the House enjoin, I must obviously conform with the Rules of the House, and there it is.
On that footing, may I make a few remarks relating to Amendment No. 2, which I shall do as briefly as possible. I should like to make a few general observations which relate to everything I want to say this afternoon. The first is that when we adjourned at the last instalment of this discussion it was, of course, known to the House that there were to be discussions between those of us who support the viewpoint I am expressing today and the noble Lord the Leader of the House. I do not intend to say a word about what transpired, because those discussions were, naturally, confidential. I would only say that the highest degree of courtesy was extended to myself and my friends when we saw the noble Lord the Leader of the House; he listened most patiently to our viewpoint. But, unhappily, it has not been possible to reach an accommodation. I do not think I ought to say more than that. We are indeed most grateful to him for the attention and the meticulous care he gave to the arguments which were presented.
The second thing I think it is important to say is this. These Amendments are moved in no spirit of hostility to the Government. Nobody believes—at least, I do not, and I do not think any of my colleagues do—that the Government are animated by any vicious, undesirable or dangerous motives, or are in any way enemies of freedom of speech. What we 995 do believe is that there is an irreconcilable difference between us as to the effect of this legislation and what dangers might ensue if it is passed unamended. That is really the difference between us. It is not based on a belief that we are dealing with anybody but people who are as much concerned for liberty as we are. We are convinced that there is a profound difference of view as to what might happen if this legislation passes unchanged. That is why we have persevered in circumstances of extraordinary difficulty and circumstances which are extremely painful, in urging changes. In circumstances where we know that the people against whom we are urging these changes are our friends and have over years been likeminded, it becomes extremely disagreeable, if I may say so, to have to move something which we believe to be a matter of high principle. I should not like it to be thought that we have any mistaken view about the intentions of the Government in this matter, or any suspicion that they are animated by motives which could be designated as improper or contrary to democratic principles. What we believe is that there is the deepest possible difference between us, as has been demonstrated by the discussions, which makes it necessary to press this point as hard as we have pressed it.
The final remark I should like to make arises from the slightly unfortunate observation which the Secretary of State made in the House below, which I did not take too seriously, that we were to keep our lordly noses out of this matter. The reason why I did not take offence is that I do not possess a lordly nose. Those with more patrician organs might possibly have been more offended than I was. But I think he was mistaken in the principle of what he was saying. We have a perfect right to introduce our noses, whether they be plebeian or lordly, into this discussion, because what we hope to do is to give the other place an opportunity to reconsider something where we believe they have made a profound error. That is our constitutional right. That is not the intrusion of our lordly noses into anything. We should be failing in our duty if we did not give them the opportunity of reconsidering the matter, when we are so firmly convinced that they are in error and are mistaken. We may well turn out to be wrong. History will deter 996 mine this matter; we shall not. In the light of history, it may turn out that no more foolish activity than the one I have been engaged in for the last few weeks can be found in the pages of the history book. I do not believe it. Hence I think it is of the greatest importance, and I think this is an extremely important day in the history of this House, that we should try to retrieve from this legislation, which has nothing to do with this matter and was not designed to have anything to do with this matter, the possibilities of profound danger which we sense and believe could come into operation.
Amendment No. 2, upon which I shall be a model of brevity, is simply to secure that no industrial action can be used in order to coerce into a newspaper, into a magazine, into a publication, something that would not otherwise be there according to the notions and ideas of the person who controls publication, and that no industrial action can be used to take anything out. This is a very simple proposition. I should have thought in ordinary terms that it was an unarguable proposition. I say this not in the least degree disrespectfully to the immensely senatorial figures who have operated as trade unionists for years and are now in this House. It has absolutely nothing to do with trade unions. It is not a matter that has any bearing on trade union law. It has to do with that principle of freedom of speech, the right to express what you want to say, which is the touchstone of a civilised nation, and which has been the pride of this country over generations and over centuries.
I would simply invite your Lordships to say that there is no possible objection in principle to the introduction of this particular Amendment. It is a simple Amendment. It will possibly cause some problems in industrial negotiations in the newspaper world when people are anxous to make use of what, in my view, would be an improper power to seek to coerce the contents of a newspaper for the purposes of wage negotiations or conditions of employment. That, I think, is totally wrong. I think whatever coercive methods are available, whatever methods of argument or discussion are available— and heaven knows there are enough of them! —they do not need the addition 997 of a method whereby the newspapers can be prevented from publishing something or compelled to publish something. I beg to move.
§ Lord HOUGHTON of SOWERBY
My Lords, I hope that when my noble friend Lord Jacques comes to reply he will advise your Lordships as to whether this Amendment is already covered by Section 29(1) of the principal Act. If your Lordships will look at the seven paragraphs in Section 29(1), you will see that set out there are the occasions upon which a dispute is an industrial dispute or trade dispute within the meaning of the Act. Looking at that from a layman's point of view, it seems to me that the circumstances with which the Amendment deals are outside the list of matters which would constitute a trade dispute. If I may say so with many lawyers in your Lordships' House, I think we might know what their construction of Section 29 in the principal Act would be. I have gone into this matter myself and have had assurances from the Department that Section 29(1) (a), (b), (c), (d), (e), (f), (g), exclude the circumstances which are referred to in Amendment No. 2, and therefore such matters would be outside the definition of a trade dispute. I think it is important to know that before we are asked to pass this Amendment.
It may be of course, that the noble Lord, Lord Goodman, feels that to remove any doubt at all it would be better to have it clearly stated, as it is in the Amendment. Well, that is a matter of opinion, and I think we might resolve that matter by a little debate. Certainly from my point of view—I speak only for myself in this matter—it would be undesirable to include in the definition of "trade dispute" matters which are referred to in the Amendment. I think they are properly excluded.
I do not think the noble Lord, Lord Goodman, need fear that we shall tire of hearing him on successive Amendments to this measure. It would, however, be convenient, I suggest, if we could deal with the substantive ones separately and not get horribly mixed up trying to sort out the wheat from the chaff. It has been said that editors separate the wheat from the chaff and then print the chaff, but we want to separate the two. I hope that not 998 every Amendment on the Order Paper will be dressed up in the raiment of high principle, about the freedom of the Press and the basic freedoms of the British people —
§ Lord HOUGHTON of SOWERBY
My Lords, I do not want to dwell unduly on the philosophical background to a number of the Amendments which we shall be debating, but we might look at some of them as quite practical questions of trade union organisation and administration, because that is what they are, although they may be a little more sensitive because of this sphere of editorial freedom and the freedom of the Press. It is a pity that while the Newspaper Publishers' Association has such an able spokesman in your Lordships' House as the noble Lord, Lord Goodman, the National Union of Journalists, against which all this is aimed—
§ Lord HOUGHTON of SOWERBY
Yes, my Lords. All this is aimed at the NUJ. Of course it is. It is aimed against the possible abuse or misuse of a closed shop situation by the NUJ and there is nobody in your Lordships' House to speak for them, and that is a great pity.
§ 4.12 p.m.
§ Lord SHEPHERD
My Lords, it might be helpful if I were to intervene at this point, and in doing so I accept the invitation of the noble Lord, Lord Houghton of Sowerby, to deal with the aspect to which he referred. But first let me assure the noble Lord, Lord Goodman, that all of us are fully aware of what he has in mind. I think it would be a little more helpful on other occasions when we are debating further Amendments if the noble Lord, Lord Goodman, would go into a little more of the meat and detail of what individual Amendments are likely to do. I have been in your Lordships' House long enough to know that the simplest Amendment, the one which has the most clear interpretation, is the one that is the least acceptable to the Government, not because of what it is seeking to do but because it is badly drafted and perhaps raises other matters which its mover had never intended; and in the course of these 999 debates I may be able to point out to the noble Lord, Lord Goodman, some of the significant consequences of his proposals which he may not have had in mind when he drafted them.
I thank the noble Lord, Lord Goodman, and his friends for coming to see me. We had a useful discussion and I do not think that in practice and in purpose there was a great deal between us. The noble Lord differed from us in that he wished to see the full rigours of the law in dealing with this matter. We feel that in present circumstances, in the present light of knowledge and our confidence in those who operate on all sides of the Press— proprietors, editors or journalists— they are today the guardians of the freedom of the Press and that the full rigours of the law are not required— and heaven forbid we shall ever need them!
The two Amendments moved by the noble Lord, Lord Goodman, do not deal with the closed shop at all. They seek solely to exclude certain types of dispute from the protection afforded by immunities if they fall within the definition of a trade dispute. First, I must make it absolutely clear that the Amendment before the House would deal with censorship, and the Government's attitude to this Amendment is not determined by a wish that industrial power should be used to determine what shall and shall not be printed. The Government certainly do not wish to appear to condone action designed to censor the Press. What has to be examined is whether the problems about which so much concern is expressed are sufficiently great to require a legislative remedy and, secondly, whether the remedy proposed would be appropriate.
The NUJ has a good record on censorship. It has its own code of professional conduct. Moreover, the NUJ has recently reaffirmed its total abhorrence of censorship in any form brought about by improper pressure from any source, and it has also reaffirmed its total commitment to the defence of the union's longstanding code of professional conduct. It has said that it would support the setting up of machinery within the industry, possibly with the Press Council, urgently to deal with complaints concerned with censorship or any other contravention of their declaration on Press freedom which 1000 was issued on 8th March in the form of a resolution by the National Executive Council. The Government's view is that this is an extremely helpful development and that others involved in journalism ought to consider seriously whether this is not the better way forward rather than the amendment of the law.
Secondly, this Amendment could deal with the problem of access in that disputes over particular articles may arise not because of the context, but because of their authorship This is a complex area, but the Secretary of State in his speech on Report in another place recognised that there could be problems of access, but that these were extremely difficult to deal with in legislation. He pointed to a passage in the draft charter drawn up by Mr. Hetherington, editor of the Guardian. Clearly, this has no formal status, but it is encouraging in that it points to the direction in which the Government think it right to go. This draft said that while normal newspaper work must be reserved for trained journalists, access ought not to be barred to any citizen or group of citizens. Editors ought to give fair representation to opposing and minority points of view. While the unions are entitled to protect their members' earnings, restraints must not be placed on the rights of editors to publish contributions from a wide range of authors. The NUJ's statement of 8th March was on rather similar lines.
The approach of this Amendment is very different and it is questionable not only whether it is the right way to secure what all desire, but whether it might not, at least in some instances, prove a positive hindrance. I ought to point out— the noble Lord, Lord Houghton of Sowerby, referred to this—that the Amendment is not strictly necessary to deal with the problem of disputes over particular articles or their content. The definition of "trade dispute" in Section 29 of the Trade Union and Labour Relations Act covers disputes which are connected with what are broadly regarded as terms and conditions of employment. This is particularised in some detail in Section 29(1), but there is nothing there which would seem to bring a dispute purely and simply relating to the content of an article— say, one which the union did not like on political grounds— within that definition, just as political disputes themselves are outside the definition.
1001 However, disputes over articles may arise in other circumstances. There could be a dispute over whether the article should appear because the author was not a member of the union, although the NUJ has said that it will not repeat action taken to black nonunion copy except in the context of industrial disputes. There could also be disputes over whether the author was a trained journalist. Such disputes might well fall within the definition of a "trade dispute".
The question has to be asked whether the remedy proposed would help. What it would do is enable the employer to take legal action against the officials of the union or other individuals concerned. In some circumstances at least, the employer would be able to sue for damages and seek an injunction restraining the union from taking industrial action in pursuance of the dispute. The Government have made it quite clear that they do not consider that legal action of this kind contributes to good industrial relations. This has been said time and time again not only in relation to the provisions of the Amendment Bill, but in respect of changes to the principal Act proposed by the Opposition.
Moreover, the Amendment might well give rise to some complicated legal questions. The situation in which a dispute arose over an article might well be clearcut, but what would be the position in relation to industrial action arising over a pay claim where attempts to suppress articles, perhaps because they were not written by members of the union, were an incidental feature? I should not wish to condone the use of this tactic in pay disputes of the newspaper industry, but I do think that there is a problem here unless we are going to say that journalists unlike any other group of workers, will have their right to take industrial action circumscribed. In addition, is giving to the employer the right to take legal action over an incident in a dispute which otherwise falls within the definitions of Section 29 really likely to lead to a helpful solution to that dispute? It seems preferable to rely on other means of protecting the freedom of the Press. My Lords, I really need to ask the House whether newspaper proprietors— on whom the initiative to take action to protect the freedom of the Press primarily lies— 1002 really want to place this trust in the law to that extent?
My Lords, the noble Lord, Lord Goodman, referred to the provisions of the Industrial Relations Act and said that they were never used so far as the Press was concerned. I hope the noble Lord will agree that there may be other means open to us. I hope he will feel that what I may be able to propose later on, when we discuss his Amendment No. 5, will show that there are other ways open to us. We can do much by definition, but I have to say to the noble Lord that we cannot subscribe to the view that the law has an early or even a significant role to play. In the defence of the freedom of the Press, there is nothing between us. If at some stage it became clear that that freedom was under threat, the noble Lord would be well aware of the assurances which the Government had given and of the fact that we ourselves set up a Royal Commission on the Press to look into all these matters. In the light of that and of what I think the noble Lord and all sides of the House recognise to be the real desire in regard to the freedom of the Press, I hope he will agree that, while there may be disagreement as to the means, we are all seeking ways of maintaining and, above all, improving it. I can say to the noble Lord only that the Amendment which he has moved will, in my view, not be helpful and could well be unhelpful.
§ 4.24 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I want to intervene for only a very few moments on this Amendment in order to make a number of short and distinct points. First, it is of course entirely for the noble Lord, Lord Goodman, to decide what he does with the Amendment. But, speaking for myself, and since he indicated that it might in a certain contingency become unnecessary, I hope that he will not on this occasion press it to a Division, remembering, as he will, that if for any reason he is dissatisfied with the result of today's discussions, he can put down the Amendment or something similar for discussion on Third Reading.
Secondly, in relation to the question posed at the outset by the noble Lord, Lord Houghton of Sowerby—and I speak subject to correction by the noble and 1003 learned Lord who sits upon the Woolsack—I had, broadly, come to a rather similar conclusion to that just put forward by the noble Lord the Leader of the House. I do not think one can say without qualification that the kind of action postulated in the Amendment would, or would not, come within the terms of Section 29 of the principal Act. I can well understand circumstances in which such action would be a trade dispute if the Act were not amended. For instance, under Section 29(l)(c) or (e), I could well construct a set of circumstances in which the courts would be likely—and, again, I speak subject to correction—to find that a dispute was a trade dispute within the meaning of Section 29 of the principal Act. On the other hand, I agree with the noble Lord the Leader of the House, that a mere act of censorship directed towards the content of an article, as distinct from the authorship, might very well be held by the courts not to be a trade dispute within any of the provisions of subsection (1). Therefore, there is a certain amount of ground which I can certainly share with the noble Lord the Leader of the House in this matter.
Thirdly—though I cannot, of course, speak for the noble Lord, Lord Goodman —I do not regard this Amendment as an attack on the NUJ. Both the noble Lord, Lord Houghton, and possibly the noble Lord the Leader of the House rather acted on the assumption that it was such an attack but, so far as I know, by far the worst—and it may be the only—cases of censorship which have taken place have been the work not of the NUJ, but of the printing unions. Therefore, I think it would be quite wrong to represent this as an attack on the NUJ as such. On the contrary, I regard another group of unions as much more likely to offend were this Amendment to be carried into law.
My Lords, I think that on one point I parted company with the noble Lord the Leader of the House. In the event of a pure act of censorship by any union taking place—be it a printing union, the NUJ, the Institute or any other union connected with the Press—based on the content of an article, rather than its authorship, and in the event of the courts being likely to hold that it was not a trade dispute, I think that the law is both 1004 a necessary and an important weapon to defend the freedom of the Press and I hope that it will not go forth from this House that it ought not to be used. The only other point I want to make is that of course I do not wish to reduce the length of the debate if noble Lords want to enlarge it, or to dictate in any way to the noble Lord, Lord Goodman, as to what course he should take. However, I suggest that, in the light of what I have said, it might be possible for him to withdraw the Amendment at some stage.
§ Lord SNOW
My Lords, I think I made it clear at the Committee stage that I was deeply distressed by this whole business. Listening to the noble Lord the Leader of the House, my distress has become positive incomprehension. We all know that he is extraordinarily conciliatory and that he has done his best and, in a certain rather abstract sense, shares our views. But it seems a most peculiar chain of argument to suggest that the Amendment is not strictly necessary, but that, if it is necessary, it ought not to be moved. That is a most extraordinary way of attacking the matter. I have no conceivable objection to the NUJ, as I do not have to almost any other combination of men. But this beautiful, idyllic faith in the collective virtue of any body of men— the Vatican, the Royal Society— seems utterly unreasonable. It is perfectly true that the NUJ made a statement of intention, with which almost every Member of your Lordships' House would associate himself. But no such body can possibly bind its successors. It has not the slightest idea who its successors will be.
I feel that there is a potential danger here— it may be small— which no serious body of men should risk. I further believe that it may be a much greater danger because of possible changes which could, within five or ten years, be quite close. Here I wish to say one word to my noble friends, to whom I listened with immense respect, with regard to labour relations and trade union matters. We have listened to, and respect and follow my noble friend Lord Douglass of Cleveland. If the Amendment by the noble Baroness, Lady Robson of Kiddington, had been pressed I should, on the advice of my noble friend Lord Douglass, have voted against it. On the other hand, there are amateurs, and there are professionals, and many other noble Lords, like the 1005 noble Lord, Lord Houghton of Sowerby, are professionals, too. Here I must ask some noble Lords to believe that on one wing of this matter we are professionals, and they are amateurs. We know how fragile is the written word. We have lived all our lives with it, we have made our livings out of it, and we have seen it go like a pack of cards when libertarianism conflicts with collective force. That may be our problem. That is why I regard the Amendments of the noble Lord, Lord Goodman, as of such importance.
§ 4.32 p.m.
§ Lord GORE-BOOTH
My Lords, throughout all the process of the Bill I have been arguing with myself whether or not to intervene, but have wished to suspend judgment as much as possible. I am not quite sure whether this is the right moment to intervene in any case, but since the noble Lord who has just sat down has talked in terms of doctrine, I thought that perhaps I might make my contribution regardless of what the noble Lord, Lord Goodman, decides to do on this Amendment. Frankly, I share his reaction to the suggestion by Mr. Michael Foot that your Lordships should neglect your duty. I am glad to say that in this respect we are not doing so. I should also like, lest I later forget, to express the appreciation which I think many of us feel for the efforts made by the noble Lord, Lord Houghton of Sowerby, at the earlier stages, to bridge the gap which has existed between well-intending people on both sides of this argument. Mr. Hetherington of the Guardian has by now been quoted on both sides. I might add my quotation. He said on the radio not many days ago that he was looking forward to the Amendment put forward by the noble Lord, Lord Goodman. That perhaps also weighs in the argument.
My Lords, the one basic question here is: is freedom different? In other words, people who have their worries about the powers of trade unions have in the end, in the context of this Bill and its history, broadly conceded the principle of the closed shop, and that affects whether you can do a job or whether you cannot and many other things. Surely, with great respect to the noble Leader of the House, one can and must dissociate the freedom 1006 to say and write things from any of these other rights. It is different and basic, and it has been fought for in this country for over 700 years. We must consider it in its unique light. As the noble Lord who has just sat down said, and knowing the noble Lord, Lord Goodman— though I have not discussed this point with him— this is not to my mind an Amendment against anybody; it is against continuancy. We in this country run our affairs a great deal on the basis of case law, but this line of thought which the noble Lord, Lord Goodman, represents is perhaps the rarer procedure of making a law in case. It is much more like the law which was passed by Parliament in the 1930s to prevent people from wearing uniforms and marching in processions, before they had actually started to do so in any great measure.
We must now express appreciation for the NUJ's resolution, and appreciation also of the understanding by Mr. Kenneth Morgan of what is the duty of journalists towards one another and towards editors. But a time could come when somebody less statesmanlike, less thoughtful, and less liberal should exercise decisive power— not necessarily in the NUJ ; but in some other context—which could result in interference in the freedom of an editor to write what he likes. If that proposition is accepted, which I think it must be, the question then is: should that situation be dealt with by law? I know that it is possible to argue that it would be better for industrial relations if it were kept out of the law. This is a possible generalisation. But I leave your Lordships with the thought that if Parliament feels itself unable to put into legislation a clause which explicitly protects freedom of thought and expression of our people, then are we not perhaps locking up the democratic shop and throwing away the key? Those are the thoughts I have had in long thinking about this problem.
As regards this Amendment, I am entirely in the hands of the noble Lord, Lord Goodman, in the sense that he will no doubt decide from his consideration of the arguments which have been used, whether it will be wise to press this Amendment. That I will entirely accept. But I still think we should be unwise if we spent today accepting assurances, accepting that something is not in Article 29 and therefore it is all 1007 right. We should do something a little more positive, not from the point of view of proprietors or of any particular class of citizen ; but we should be wise in the interests of citizens as a whole to state something which can be referred to as a matter of law in whatever part of the Bill is ultimately chosen.
§ Viscount MASSEREENE and FERRARD
My Lords, I shall take only a minute or two in order to support the two noble Lords who have just spoken, as well as the noble Lord, Lord Goodman. The whole opposition to the Amendment appears to be on the assumption— which is a correct assumption at the moment — that the National Union of Journalists is a very reasonable body of men. We know that. On Second Reading I said that Mr. Kenneth Morgan was a most reasonable and excellent man. But what happens if he is knocked over by a bus and an unreasonable man takes his place? I was rather surprised to hear the noble Lord the Leader of the House say at the start of his speech on the Amendment, if I quote him correctly: "Save us from the rigours of the law ". You can have as many codes of practice as you like, but, especially in these modern times, if you do not have them enshrined in the law they are not worth the paper they are written on, because if militants get into power, as might happen, those codes become mere scraps of paper, and (he militants will tear them up.
As an occasional contributor to the Press, I believe that many of us are frightened of this Bill. I quite agree that it may be perfectly all right for ten years, or even for fifteen or twenty years. But one day it might not be all right, because militants may get into power. I will place myself in the hands of the noble Lord, Lord Goodman, and do as he does. One cannot compare the National Union of Journalists— writers— with other sections of society or with other workers in other unions, because they are different in every way. Writers come from every section of society, but they are completely different. Here the Government must make an exception.
§ Lord GORDON-WALKER
My Lords, my noble friend Lord Snow and the noble Viscount, Lord Massereene and Ferrard, made substantially the same point; namely, that there is not at the 1008 moment much danger—my noble friend said there is very slight danger—of anything happening. It seems to me, if the doctrine is adopted, whenever there is the slightest danger of something undesirable happening, of providing against it in a Statute, that our Statute Book will be overladen. Noble Lords are not really saying that whenever there is a slight danger you must protect against it; they are saying that in this case there is a slight danger and therefore you might protect against it. They are not making a generalisation ; they are stating a proposition which relates to this matter. My noble friend said that he was not against the Bill; he feared— and many noble Lords also feared— that there would be changes in the NUJ. It is substantially a feeling against the NUJ that motivates many of these—
§ Lord GORDON-WALKER
My Lords, I do not know what body of men other than printers would have this power except, perhaps, editors themselves. Editors might suppress things, of course, and there would be no remedy in any Bill against that. Although it may be said this is general in one sense, there is no other body of men who can exercise this kind of power if they go wrong; that is if the NUJ goes wrong. My noble friend Lord GoreBooth said—and we all agreed with him—that the right of free speech and free writing is absolutely essential, and if there is any danger to it in this or any other Bill we must be alert to it and stop it. But I suggest that there is also an inescapable trade union aspect in this same problem. This is the dilemma that we are in.
We want to preserve liberty and proper treatment of trade unions, with equality as between one trade union and another. We must not, I suggest to your Lordships, allow ourselves to discriminate against one trade union and say that that trade union cannot have a closed shop because of all these dangers, while all other trade unions may have a closed shop if they reach agreement with their employers. This is something which the union that is discriminated against will 1009 never accept, and will always take opportunities to protest against and break. It is setting out a prescription for bad labour relations in the newspaper industry.
My Lords, will the noble Lord give way for one moment? I can see his difficulty, particularly in the context of this paragraph and where it comes. None the less, he is not arguing that a matter of extremely important tactics and sensitiveness is equal to a fundamental point of principle?
§ Lord GORDON-WALKER
My Lords, all fundamental points of principle have to be applied. We cannot just forget that we have to apply them ; we have to think of their consequences upon all sorts of people. We cannot legislate simply in terms of fundamental principles, but that must underlie legislation. I am dealing with the problems of applying this fundamental principle, which can be taken so far and made so absolute that it treads upon proper trade union rights.
I should like to say a word about the position of law and trade unions in this field as this has been raised in this debate, and I am sure that the noble Lord, Lord Goodman, will raise it again. Of course nobody is saying that offences against the law by trade unions or anybody else should not be punished. We have just heard from the noble and learned Lord, Lord Hailsham of Saint Marylebone, that in his view courts could now, without any change coming through this Bill, decide what is a trade dispute. There are now many cases where the law, quite acceptably, can affect trade union matters. But the objection to the Amendment, to my mind, is that the trade unions bitterly oppose any specific special statutory discrimination against themselves, creating new offences which were not offences before and which bring the law in a new way into trade union matters. That was the objection to the Industrial Relations Act which brought new laws to bear on who was entitled to pass such things; a great argument of principle was stated, but in practice the trade unions would not accept a new discriminatory statute against them.
In this case, the noble Lord, Lord Goodman, is seeking to enact a special new statutory offence which is aimed at one union—whatever he may say and however much he may shake his head— 1010 leaving all others free from this new penalty which he is creating for the members of one union. I hope your Lordships will not— either in this or later Amendments— involve our House in a clash with another place, in effect, for a second time. This Bill has previously been before this House; it became a Statute and then another Bill. In effect, if this Bill was so amended that the other place rejected it, there would be a second clash, and that is something, I suggest to your Lordships, about which we should think three, four, five times before we engage upon it.
§ Lord DRUMALBYN
My Lords, before the noble Lord, Lord Goodman, replies may I ask him one point: does his Amendment apply whether or not there is a closed shop?
§ 4.46 p.m.
§ Lord GOODMAN
My Lords, since I received a quantity of most valuable advice—and the Commander in Chief and half my troops have indicated that they may not be there—I intend to withdraw this Amendment. If need be, I can put it back on the Third Reading. Perhaps I may be permitted to say that this Amendment is designed because of the closed shop situation; it does not necessarily relate to the closed shop situation.
May I take the opportunity to reply to what I regard as the most preposterous argument of all, which makes me wonder at times whether we are really sitting at the Mad Hatter's Tea Party. It is apparently seriously suggested that, in order to maintain the industrial rights of 27,000 gentlemen who are not in the remotest degree oppressed at this moment, who have splendid industrial rights and have negotiated excellent agreements for themselves, we should entrust to them the right to say who is to write even a single word in every newspaper and magazine. If that is a serious contention, I can say only that I am totally bewildered and unable to believe that it is presented seriously to this House. As to the question of whether these 27,000 gentlemen should be included in industrial negotiations one way or another, it must be for the wisdom of trade unionists to determine as to how best to enable them to do it.
The suggestion that has been put in the balance on one side is the advantage 1011 they will get by retaining this Bill, and, on the other side, the apprehended threat to liberty, which is something of such consummate importance that no words of mine can exaggerate it. The bang with which the right hand side of the scale would come down would injure the table. Yet we hear seriously suggested as a main reason for preserving this Bill that it would be unfair to the NUJ, or whatever union it is ; but nobody utters a single word on behalf of another union, which is less than a quarter its size and is apparently to be obliterated by this legislation. Nobody says a word on their account and yet it is suggested that this is a major reason for preserving this legislation. I can say only that I do not believe—and I hasten to say to the noble Lord, Lord Houghton of Sowerby, that I am no enemy of the NUJ, and they know it quite well—that if you balloted the NUJ on these proposals that there would be a majority in their favour. I cannot begin to tell your Lordships the number of members of the NUJ who have spoken to me and to my colleagues expressing the greatest disapproval of this legislation. Photographers come up to me— when they are ill advisedly seeking to photograph me on some occasions— and say, " I am a member of the NUJ and I support you ". The same is true of all of us who are fighting against this legislation.
There is not a shred of evidence to show that this legislation has the support of the NUJ so far as the bulk of its membership is concerned. To drag in the NUJ in terms which are calculated to suggest that this is a battle on their behalf and terrible things are being said about them, that they need to be defended by members of this House, of whom there must be at least a dozen to my knowledge, and to suggest there is ,not a spokesman for them in the House when two have already spoken and declared their membership of the NUJ, is, if I may say so, making use of arguments which are not only irrelevant but faintly discreditable. I propose to withdraw this Amendment, because there are other Amendments that are more relevant, and I would say in the words of Kai Lung:To a deaf ox a whispered word is as efficacious as a detailed memorandum.
§ Amendment, by leave, withdrawn.1012
§ Lord GOODMAN had given Notice of his intention to move Amendment No. 3:
§ Page 4, line 19, at end insert—
"( ) In section 30(1) of the principal Act (interpretation) after the definition of ' " act " and " action"' there shall be inserted the following definition—
article" means any printed matter or any radio or television broadcast; ".
§ The noble Lord said: My Lords, I do not intend to deploy all the arguments that your Lordships heard on Second Reading, on Committee stage and again this afternoon. I will recapitulate them very briefly, and I should like to tell your Lordships what this Amendment is about. In many discussions we have had with the Government, the one question we have repeatedly asked them is; Why are they pressing on with this legislation? The answer is—
§ Lord SHEPHERD
My Lords, I wonder whether the noble Lord is not a little bit ahead of himself. My understanding of Amendment No. 3 is that it is consequential on Amendment No. 2 ; and it seems to me that the noble Lord is launched on a speech regarding another Amendment.
§ Lord GOODMAN
I am sorry, my Lords. My handling of this situation, in terms of technique, is very fallible. I beg to move Amendment No. 3, which is linked with Amendment No. 4.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I had hoped that the noble Lord was about to say that he was not going to move Amendment No. 3 because it is consequential on Amendment No. 2, which he has withdrawn.
§ Lord GOODMAN
My Lords, with the assistance available to me, I cannot go wrong! I shall not move Amendment No. 3.
§ Clause 4 [Code of practice on freedom of the press]:
§ 4.52 p.m.
Lord HILL of LUTON moved Amendment No. 4:
Page 5, line 22, after (" employers,") insert (" employers and broadcasters, or employers' associations representing such employers,").
The noble Lord said: My Lords, in moving Amendment No. 4 I will, if I
may, cover in a single speech the other Amendments standing in my name—Nos. 6, 8, 9, 10, 12 and 24. They all cover the single and circumscribed point I wish to put to the House. It stems from something which was said by the noble Lord, Lord Houghton, on the second day of the Committee stage, Tuesday, 11th March, in column 197:
This new clause relates to the written word ; not at present to broadcasting and not to the printing unions. Broadcasting could be brought within the scope of this new clause if it were thought desirable, but at present my judgment is that the problems of the newspaper industry and of journalists could be distinguished from those of the broadcasting authorities.
In that tentative way he sought to explain how it was that the new clause that he moved, and which the Government had accepted, related only to journalists and the Press.
§ I should like, in a partly exploratory way, to discover what led the noble Lord, Lord Houghton, so to confine his Amendment and for the noble Lord the Leader of the House to accept it in that form, by putting a question about the code, the scope of the discussions about it and the scope of the consultations that the Secretary of State will have, if it goes beyond the six-month period for voluntary agreement. I should like to be perfectly clear why this should not apply to broadcasters and broadcasting. I make no comment on the code itself and the code proposal, except to say that I hope it will be strengthened subsequently either at this stage or on Third Reading. But one must contemplate the possibility, depressing though it may be for certain of your Lordships, that the Amendment moved by the noble Lord, Lord Houghton, and accepted by the Government, will appear in its present form in the Bill as it finally goes for Royal Assent. Therefore, I should like to seek, if necessary, to move its strengthening, and in any case to understand the limitation.
§ I have heard it argued— and this may have been in the noble Lord's mind— that as the Governors of the BBC, on the one hand, and the Members of the Independent Broadcasting Authority, on the other, are made responsible by the Charter and the Acts respectively for what is broadcast, nothing can be done or said to lead them to divide that res- 1014 ponsibility with others. I have heard that argument used, and I have heard it argued also that the BBC, for example, have always resisted the closed shop. Incidentally, it is of importance to note that the Beveridge Committee recommendations included the recommendation that the specialist unions, including the NUJ should be recognised ; and i; was recommended by Lord Beveridge, and accepted by the specialist unions and the BBC, that the closed shop should not obtain. It may be that that position will not be sustained in the future: it may be that industrial pressure upon the broadcasting authorities may lead them to depart from the position they have hitherto adopted.
§ The Amendment I put forward in this tentative, exploratory way, extends the scope to broadcasting and broadcasters. It is important to realise that there are broadcasters—not members of the NUJ, and indeed not eligible for memberships— who are involved in the field we have in mind, the field of publication of comment and argument as well as of news. So, in putting forward this series of Amendments aimed at this circumscribed purpose, I should be very grateful to know what has been in mind in excluding broadcasters. If there are to be discussions such as are provided for in this new clause, and if after six months there are to be consultations by the Secretary of State, the issue being the freedom of information, should not broadcasting be covered by the procedures laid down in this new clause? That is my point. I want to keep it circumscribed and not to roam over the larger field. It may be there are good reasons for this exclusion. There may well be some reluctance on the part of broadcasters to be involved in what might be called the second phase, which is the consultation by the Secretary of State, following the end of the sixmonth period without agreement having been reached. Whatever the reasons, I think this matter ought to be discussed so that one may secure such modest protection as is achieved in relation to the Press for the other not unimportant medium of broadcasting.
§ 5.0 p.m.
§ Lord HOUGHTON of SOWERBY
My Lords, the noble Lord, Lord Hill of Luton, has asked me what I had in mind at the Committee stage of the Bill 1015 in using the words I did in my speech on this new clause. The answer is that the words I used were used on the advice of the Secretary of State whose view I invited on this point. So what I said was in his mind. I must not add to that. For my own part, I was unaware that matters were raised in connection with broadcasting that had been so clearly raised in relation to the newspaper industry. I was more familiar with the latter's problems than I was with any comparable problems which might have arisen in the field of broadcasting. Moreover, I was unaware of what the appropriate trade union might have to say on this matter, whether it was the NUJ, which I believe has an interest in some of the staffs of the broadcasting authorities, or the Association of Broadcasting Staffs, or whoever might be involved in a union sense. I was not in touch with them and did not know their views. That is why I was tentative.
All I need say is that if it is the desire of the House to include broadcasting then I would respectfully suggest that perhaps a little more thought would have to be given as to the way in which it was to be brought in. My own view would be that broadcasting would need a separate code and would not necessarily be covered by the same code as is stipulated in the Bill at the present time. It is entirely a matter for consideration as to whether the various parties connected with discussions on a code for newspapers would necessarily be the same parties as those to discuss a code for broadcasting. There might be some overlapping, but there might be separate considerations leading to the use of different words. That is why it is not easy just to graft broadcasting on to the Bill merely by adding to what is already there the words, "broadcasting and broadcasters".
§ Lord SHEPHERD
My Lords, perhaps I may assist the House in this matter. My advisers think that the wording of the new clause already covers broadcasting despite the reference to journalists and to the Press, because matters relating to the freedom of the Press are defined without limitation in subsection (2) of the new clause. However, there may be presentational and legal reasons why we should make this matter clear. The advice I have is that the noble Lord's Amendments should be accepted in principle, but 1 would ask him not to press 1016 them and we would undertake between now and the next stage to see what drafting is required for the matter to be put quite clearly.
§ Lord HILL of LUTON
My Lords, 1 am grateful to the noble Lord, Lord Houghton of Sowerby, for so frankly describing what led to the inclusion of the paragraph which I quoted. I am also grateful to the noble Lord the Leader of the House for what he said. I do not agree that broadcasters are already covered, if only for the simple reason that if broadcasting is to be covered by a code it must go beyond journalists. Others are involved in this same field who would not respond to that description. In view of what has been said, and bearing in mind particularly the wise point made by the noble Lord, Lord Houghton of Sowerby, that it might well have to be a different kind of code in a different kind; of language providing for consultation with another Minister— the Minister who sponsors broadcastng—I ask leave to withdraw Amendment No. 4 and I do not propose to move Nos. 6, 8, 9, 10, 12 and 24.
§ Amendment, by leave, withdrawn.
§ 5.7 p.m.
Lord GOODMAN moved Amendment No. 5 :
Page 5, line 22, after (" employers") insert (" editors and such editors' organisations").
§ The noble Lord said: My Lords, might I mention in my fumbling fashion the mechanics of this particular situation. I should like to address myself to Amendments Nos. 5, 7, 11, 13, 14 to 23, and No. 26 which go to make up the original single Amendment which I put down. If 1 might make a few remarks, they would relate to all of these Amendments because they are part of one indivisible whole.
§ The Amendment we are seeking to amend provides for the creation by some means of a code of conduct or behaviour for journalists—and that has become known as the Houghton Amendment. It involves and implies discussions between the various sections of the industry which will finally embody in a single document, which we have called a charter, the conditions, circumstances, canons under which newspapers are to be published. It also provides that in the event of agreement failing to be reached between the various 1017 negotiating elements, such a document shall be prepared by the Secretary of State for (for some reason) Employment. It is not made clear why it should be the Secretary of State for Employment who is producing a newspaper code, but that may be explained in the course of the debate.
§ I would say in the most forthright fashion, first, that the notion of an elaborate code which is to determine what goes into newspapers and what does not go into them; which is to state what standards of taste and behaviour are to operate ; which is to state what news is fair and what news is unfair, must be the conception of someone who does not live in this world—certainly of no one who has the faintest acquaintance with how a newspaper is produced. It is a code of such unreality as to be one of the most mammoth essays in absurdity in which human beings could engage—but I do not want to overstate the position.
§ The second point I would make is that I know of no civilised free country which has a code for its newspapers prepared by the Secretary of State for anything— be he the Secretary of State for Employment, the Chancellor of the Exchequer, or any other Minister. I should like to be told of a free Western community which has a State imposed code as to how newspapers are to be produced. I do not believe that a few years ago we would have contemplated this proposal without the utmost derision and indignation. It would remove us, not to the second league, but to whatever is the lowest football league that may exist, in terms of being a free nation enunciating free notions in publications which exist for that purpose. We have been told—we were told I think by the noble Lord who has just sat down—about editors having no control over their activities. I think the implication was that while we are trying to trammel the unfortunate journalists we are allowing the editors to ride free to do exactly what they like. Well, that is quite right. An editor should have no control over his activities. The appeal from an editor is to another editor. There are 1,300 provincial newspapers in this country and 12 national newspapers, to each of which people can turn if they cannot find a place in any particular one 1018 or have been rejected by any particular one. That is the only freedom of the Press that is a possibility. There is no other freedom of the Press.
§ One cannot create a freedom of the Press by codes, by legislation, by Acts of Parliament or by Bills. All one can do is to have enough newspapers controlled by the people who own them or run them or edit them, according to whoever is decided to be the controlling body, and that is the freedom of the Press. The way to achieve major fresh Press freedom is to create more newspapers. The fact today that a newspaper costs a fortune to produce; that all the conditions, some of which are labour conditions, some of which are print conditions, combine to make it an impossibility to produce a newspaper other than as a matter of great difficulty and danger, is of course the major enemy to the freedom of the Press. Once we can get back to a situation where newspapers can be published for the investment of a reasonable amount of capital, we shall be back to the certainty that we have a free Press. However, we shall not achieve a free Press by means of codes; we could sit down and negotiate with each other for months, years and decades and never achieve agreement on these matters. Hence, I have discouragingly to say to the noble Lord the Leader of the House, as I have said to him before, that the idea that we shall produce a code that solves this problem is based on two misapprehensions: one that there is a problem, because there is not; secondly, that if there was a problem it would be solved by the production of a code, which it will not.
§ Having said that, we turn to the question of what we have done, because the noble Lord has asked me to address myself with greater particularity to the contents of the Amendment. He found my broad brush approach to the matter one that was perhaps a little unhelpful to the House, and I am anxious to be very helpful to the House. May I refer to a question which was asked by the noble Lord, Lord Gordon-Walker. He asked why should it be that legal rights are created for the first time to victimise the National Union of Journalists when no such rights have been created against anybody else. This is completely to 1019 reverse the position. There is no question of legal rights being created against the NUJ; it is a question of seeking to rectify positions which have been created by this legislation which did not arise before. The newspapers are challenged; freedom of speech is unquestionably challenged at this moment, and it will be increasingly challenged as time goes on. What we are seeking to do is to rectify that position. It is not a question of discriminatory legislation. It is a fact that this legislation is discriminatory, and there is this mild effort to rectify the situation. This, if I may say so, is the answer to the noble Lord who said that we are seeking to discriminate against newspapers by introducing legal rights that did not hitherto exist.
§ If I may make one final general observation about the law, we have got into a most astonishing situation where we are told that it is impossible for us to seek to obtain any legislative protection against undoubted dangers if this involves an appeal to the law. I can only say that that is an unacceptable position to me, and I hope that it will be an unacceptable position to most of your Lordships. If the trade unions decide that the only way in which they can achieve a proper working relationship is to have no resort to legal remedies, that must be a matter for them; but where their deliberations involve a result that may affect, and injuriously affect, the rights of other people, then it is quite impossible to ostracise and boycott the law on the basis that the law is an abomination to which we may not refer.
§ I doubt whether there have been many Members of this House who have been more critical of aspects of our law than me; there are many parts of it which I find antediluvian. There are many conceptions of it which I think ought to be reformed. However, the fact remains that it is the solitary bastion of liberty which we possess. If we proceed to throw it overboard, we are back to a state of anarchy. It is as simple as that.
§ I do not wish to touch on discussions, but we have strained our imagination and our legislative resources to see whether we can find some alternative by way of a private tribunal that would operate to enforce the rights of the people who might need to enforce them if those rights 1020 were invaded. It is a complete impossibility. There is no machinery which one can devise to replace the law in this matter unless one places oneself wholly in the hands of the people who, unhappily, may in the event constitute the danger. Hence, we do not accept—indeed, we are not prepared to accept—the suggestion that anything that happens must involve a total rejection of any appeal to the law or to the courts. If I may say so, I do not believe—I said this previously, and I noted that one very distinguished Member of your Lordships' House, the previous noble and learned Lord the Lord Chancellor, nodded his head in assent— that the history of the behaviour of the law in relation to trade unions has been so obnoxious that after careful scrutiny of it, one will find that it has not held justice between the parties. If you look at the crofters' case, if you look at the Ford case, if you look at any number of cases, you will find that the courts have come down on the side of the unions. You will find that sometimes they go one way and that sometimes they go the other; but always their decisions are based upon honest judgments. We may think that they are mistaken judgments, but I do not know of any tribunal to which you would go which would give you fairer treatment.
§ I think it would be very helpful if somebody on the Opposition Benches produced a monograph on the subject of the trade unions and the courts, because there appears to be a deep-seated misapprehension that the courts have behaved horribly so far as trade unions are concerned. Although I do not profess to be an expert on trade union law, from my meagre knowledge of that law I believe that this is totally without substantial foundation. We know about the difficulties over the Industrial Relations Act and the problems which arose from it. Although I would not utter a single word in criticism of anybody who is not here to answer, we know that if a judge is appointed who has an established political allegiance, it is a mistake in a matter of this kind and, without any question of impugning the integrity or the honesty of the man concerned, may well do damage. However, that is quite a different question. What I am convinced about is that nothing can happen unless, in the event, we have the right of appeal to the courts.1021
§ What we have done in this Amendment is, briefly, this. We have adopted the principle of a charter. We are anxious to go as far as we can with the Secretary of State. It is a little disingenuous to suggest that we have gone a great distance, but at least we have adopted the format which he thought was appropriate and acceptable. In that charter we have entrenched four provisions. One is the independence of editors. The second is that editorial material shall not be the subject of a trade dispute. The third is that a journalist may join the union of his choice. Here I am not sure that we have been splendidly heroic or that we have not been a little pusillanimous. On the other hand, we are anxious to have something which will be found to be acceptable to the other place. Therefore, we have accepted the principle of the closed shop. We have said that a journalist must belong to a union. But why should we stand by and see the Institute of Journalists destroyed, obliterated, pulverised, simply because a union not much greater in terms of numbers has decided that that is to be the union preferred? Hence, we have said, "If you want to belong to the Institute of Journalists, you can belong to it. If you want to belong to the National Union of Journalists, you can belong to that. But you must belong to a union". We have accepted the principle of the closed shop.
§ The fourth thing we have accepted is that there should be the right of appeal if a man is thrown out of a union. Again, one of the weird aspects of this astonishing piece of legislation is that it has been offered to trade unionists as a boon, a benison and a blessing that they can be expelled from a union without reason and without appeal. It is suggested that this was inserted in the Labour Party's Manifesto as one of the things which would win them votes. Apparently, it is presented as an advantage and a benefit to the members of the trade union movement that they are to have this unquestioned boon. I must confess that I thought for a long time about what the boon is. If I was told that the Law Society to which I now belong had suddenly, for my benefit, passed a rule to say that hereafter I could be flung out without any reason being assigned and without any right of 1022 appeal, I think I should start to question whether they had taken leave of their senses. Certainly, I do not think I would accept it as a boon or a benefit. But certain equally it is that it is an impossibility to allow unchallenged and without argument that who shall write in the English Press, who shall write in magazines, who shall write in periodicals, shall be determined by a union of 27,000 people whose dubious record in democratic voting I instanced to the House at Committee stage.
§ Then I pointed out exactly what had happened when, having taken a ballot of their members about whether they should register or deregister and 6,000 odd having said that they should register and 3,000 odd having said they should not register, at an annual delegate meeting 270 said that they should not register and 190 said that they should, and as a result they did not register. When they went to appeal on the matter they had a further delegate meeting, or its equivalent, and decided by 11 votes that they should not register. I should be extremely interested to know how it can be suggested that the fate of everybody who wants to write in a newspaper can be left in the hands of any group of 27,000 people. This is not an attack on the National Union of Journalists. It is an unthinkable possibility. The noble Lord mutters that this is not the case—that it is not being left in their hands. But it is being left in their hands.
§ Lord SHEPHERD
My Lords, what I was muttering about was that it was being left in the hands of a very small number of editors.
§ Lord GOODMAN
My Lords, may I say that that is an unfortunate argument, because it goes on being repeated in order to erect an enormous smoke screen as to the reality.
§ Several Noble Lords: No, no!
§ Lord GOODMAN
My Lords, it is not left in the hands of a collective group of editors, and it is no use your Lordships saying, No. Each decision is left in the hands of each individual editor. There is no other means of procuring how this matter is to be decided. But if it is said that it is preferable to have one monolithic organisation controlled by 11 people 1023 determining what should appear in all the 1,300 regional papers and in the 12 national newspapers, I can say only that there is something very faulty in your Lordships' arithmetic. However this must be a matter for the Government to decide. They must go away and work out what it is that provides greater freedom of choice— 1,300 free individual editors each making his own decision, or 11 gentlemen controlling one union who will make one single decision. If it is true that it is a bad thing that the matter should be controlled in the way it is, is it any better to add this single, unified dictatorial control to replace the dictatorship which it is suggested exists on the part of editors? Can that be a better situation?
In this charter we have inserted these four rights. For practical purposes, that is all that this Amendment boils down to. It boils down to taking a position created by the Government, which we think is a dangerous position, and seeking to amend it so as to retain as tolerable the position of people who are going to write. I should warn the House of one fact. The National Union of Journalists is now making inroads into the publishing world, and has been doing so for a long time. Quite a number of publishers have been asked to have closed shops in relation to the National Union of Journalists, and have been asked to give recognition to that union. Publishing means book publishing; book publishing means every idea or notion that occurs in the mind of a free man. The risks that we are creating here extend not only to newspapers and periodicals, but to literature in its broadest sense and I am inviting your Lordships to say that this is not a risk that we ought to take.
When I ask the Government, "Why do we do it? What is the point of it? Cui bono"—as I say in my indifferent Latin—"Who is going to benefit from it?", there is no answer, except the ridiculous one that it provides a better negotiating weapon for the 27,000 journalists who are not asking for it. There is no other answer to explain why we should take this risk. If the risk were 1 per cent. of 1 per cent. of 1 per cent., if it were a one-millionth chance of a possibility, we would have no right to take it. We have no right, in regard to either our history or our future, to endanger 1024 the right of free men to say what they want to say and to publish what they want to publish. Hence I commend this Amendment to your Lordships. I beg to move.
Lord BRUCE of DONINGTON
My Lords, before the noble Lord sits down, would he be kind enough to explain to the House—
§ Lord SHEPHERD
My Lords, may I intervene here. If the Question is put, I think the House must presume that the noble Lord has sat down. I suggest that my noble friend might make a short speech later, in which he could make the point and perhaps the noble Lord, Lord Goodman, would then reply to it.
§ 5.23 p.m.
§ The Earl of DROGHEDA
My Lords, I was hoping that as a cosignatory of these Amendments in the name of the noble Lords, Lord Goodman, and others, I might be able to say a few words, although I cannot speak with the noble Lord's great eloquence and I shall be very brief indeed. First, I should like to say that I thought it was a little hard on the part of the noble Lord, Lord Houghton of Sowerby, for whom I have the highest regard, to suggest that the noble Lord, Lord Goodman, is here as the spokesman for the Newspaper Publishers' Association. It is of course true that he is the chairman of the NPA, but he speaks from deeply felt personal convictions which have nothing whatsoever to do with his chairmanship. The noble Lord, Lord Houghton, also said that the newspaper publishers were in an unfair position because there was nobody here to speak for the NUJ, although we had the noble Lord, Lord Brockway, here the other day giving us a moving address. Unfortunately, he is not with us now, although he has the noble Lord, Lord Houghton, in his place.
I think all of us in your Lordships' House agree with the general feeling towards the Press and broadcasting; that it is a special category, that it cannot be treated like any other form of industry and that it is very much a special case. We sympathise with the noble Lord, Lord Houghton, in his efforts to get some compromise proposal, but we do not feel at all happy about the idea of a code of practice, particularly one which might 1025 be imposed by the Secretary of State for Employment, or indeed by any other Member of the Government. In our view, it would not be suitable. There has been a lot of talk about the threat of the closed shop. We in the newspaper business are very conscious of this threat, and we have been told that by passing the legislation we are only reverting to the position before 1971. But even if that were completely true, I think there has been a tremendous change in the whole climate since then. Certainly, before 1971 nobody would ever have spoken of the possibility of a closed shop among journalists; it simply did not enter into our thoughts. So we hold that there are certain rights and liberties which have to be protected and we think they are so important that they need protection under the law.
In particular, the role of the editor and of his deputy must be specifically recognised. Editors have the most difficult job in the whole newspaper business. They are like designers who engage their specialities to design some great construction, but the editors have to take the ultimate responsibility. An editor will listen to his colleagues but, in the end, the responsibility for what appears in his newspaper must be his, and he would be placed in an absolutely intolerable position if his decisions could be called in question by a union meeting. We believe that the fact that there is more than one union to which journalists can belong should be specifically and unequivocally accepted, and we should remember that the Institute of Jouralists, which is much the smaller of the two unions, was formed long before the NUJ and is a registered union. We also believe it right that it should be a clear and indisputable right of newspapers and broadcasting services to carry contributions from non-journalists. I am sure that many of your Lordships will have seen a letter signed by a number of well-known publishers the other day, expressing grave concern about the potential threat to the publishing business of the closed shop as it might apply to newspapers.
I think we all recognise that there is a tremendously strong depth of feeling among the editors of newspapers— a very heterogeneous body—all speaking with individual voices except on this one issue where they have come together as I have 1026 never seen them do before. It is, of course, true that the other day, a little late in the day, the NUJ had a special meeting on a Saturday and they agreed that editors—although not, I fancy, the deputy editors—could be released from any obligation to belong to a closed shop. Also, they agreed that contributions from nonunion contributors would be admissible, except during a purely industrial dispute. Although the General Secretary of the union said that these concessions would go a long way towards settling some of the more extravagant fears— I suppose that is the fears of the noble Lord, Lord Goodman, and myself—he said nothing about recognising the existence of the Institute of Journalists. I wish to assure your Lordships that very real fears are felt by those mainly responsible. I think this question goes much deeper than a mere matter of industrial relations. If those fears are groundless, then no one is giving away very much by allowing them the protection under the law which they feel they need. I hope Her Majesty's Government will find some way to meet us, before it is too late.
My Lords, the noble Lord, Lord Gordon-Walker, said that it would not do to have a clash with another place over this matter. I entirely agree with him. Nevertheless, I hope that in a matter affecting the freedom of the Press, where our convictions are so strongly held, that does not mean that we cannot see which body has the final say in this great affair.
§ 5.30 p.m.
§ Lord SHEPHERD
My Lords, it may be helpful to the House if I were to intervene here to give an indication of what the Government have in mind, and perhaps to deal in a little more detail with the Amendments moved by the noble Lord, Lord Goodman. We have given careful thought to the proposals put forward in Committee by the noble Lord, Lord Goodman, which he withdrew. Secondly, we have given careful thought to the Amendment of my noble friend Lord Houghton of Sowerby, which has now become the present Clause 4. I have acknowledged that in our view broadcasting is already covered in the new Clause 4. This is a matter which we can put beyond any question on Third Reading. I can also say that we will be prepared to accept the principle behind 1027 Amendment No. 15, which would ensure that editors and editors' organisations are to be parties to the code or charter. But I hope we can avoid anything which suggests that each and every editor had to be a party.
Thirdly, it may be desirable to describe a little more explicitly the ground to be covered by the code without going so far as the noble Lord, Lord Goodman, in his Amendment No. 11. I am prepared to look at the drafting of Clause 4(2) to see whether we can insert a reference to the position of editors and a reference to other aspects of labour relations in journalism in relation to the freedom of the Press.
Fourthly, the Amendments of the noble Lord would enable any charter, whether prepared by the Secretary of State or by industry, to be amended by agreement between the parties without reference to the Secretary of State. In Committee I mentioned that I did not think that making a charter of this kind was a function really appropriate to the Secretary of State, I must say that I think the noble Lord, Lord Goodman, was very unfair to my noble friend Lord Houghton of Sowerby for this particular provision. Certainly, it was not the desire of my noble friend Lord Houghton that this matter should go to any Minister of the Government. It was a means of setting at rest some of the concern expressed about the freedom of the Press. The provision dealt with the question that if industry were not able to do it within six months, then the Secretary of State would be required to do it.
Before I sit down to allow the noble Lord to intervene, may I say that if it is the wish of the House I am quite willing to see that the six months be extended for a longer period in order that industry should have sufficient time to be able to complete their own discussions, and bring forward their code or charter.
§ Lord GOODMAN
My Lords, I want only to say that I would not wish to be unfair to the noble Lord, Lord Houghton of Sowerby. I did not entertain the faintest suspicion that anything that is wrong with this Bill derives from him. He has been most strenuous in his efforts to put the Bill right. I take the first oppor- 1028 tunity to say this. That he has not been able to do so is not his fault.
§ Lord SHEPHERD
My Lords, with the utmost respect, I do not know what that intervention was about. However, I have indicated to your Lordships how far I can go at this moment. I regret to say that the remainder of the Amendments of the noble Lord, Lord Goodman, are unacceptable. They are indeed complex and I think the noble Lord would agree with that. At present, Clause 4 is quite clear in its purpose; that is, the establishment of a code to be used in evidence, but which would not in itself be a ground for proceedings. The noble Lord, Lord Goodman, replaces the general description of the code set out in Clause 4(2) with a list of rights which are to be included in the charter. These have to be read in conjunction with his later Amendment which states that while,No criminal proceedings shall lie against any person on account of a contravention of the charter …",there is an obligation to comply with it, and a breach of that obligation would be actionable. I must ask the House to appreciate what the noble Lord is doing here.
First of all, although certain rights are listed in the Amendments of the noble Lord, they are presumably not exhaustive, and a breach of other provisions of the charter would presumably be actionable. In my view, the whole proposal is extraordinary, in that the effect would be that statutory duties would be imposed, not by Parliament, but by parties to the charter. It would seem to be undesirable —indeed, quite wrong—to have provisions, a breach of which is actionable in the courts, in a document of this nature rather than in a Statute. Whatever may be the strength of feeling towards the Government or to the problems inherent in these Amendments, I would appeal to noble Lords to ask themselves whether, as a House which seeks to maintain personal freedom, we are justified in including provisions which include matters which may be actionable in the courts when we have no idea of their extent, and which, if presented to Parliament, we should have no means to amend, should Parliament see fit. Moreover, in order to stress the unusual nature of what is proposed, I must point out that 1029 the freedom of the Press is not a subject on which we in this country hitherto have seen fit to legislate. Surely this should make us doubly hesitant before legislating in such a curious manner.
My Lords, it would be quite unacceptable to this Government—and I suspect that this attitude may well have been shared by previous Administrations—to agree to the creation of statutory duties by an industrial agreement over which Ministers and Parliament have so little control. Quite apart from the means adopted to impose statutory obligations, the rights specifically set out in the Amendments are unacceptable. The Government do not take the line that editors should necessarily be included in the closed shop. It may well be best in the circumstances of journalism that they should not be included. Certainly I can see that there is often a need for some special arrangements for editors. The difference between the noble Lord, Lord Goodman, and the Government is as to whether these special arrangements have to be enshrined in a Statute.
We believe the Bill—particularly as amended during its passage through Parliament—will give sufficient flexibility to ensure the coverage of closed shops, by negotiating sensibly for industry, having regard to the special circumstances of groups, including editors. Moreover, the NUJ itself in its statement on 8th March said that it would allow newspaper editors a free choice of whether they wished to be a member of a union. It also reaffirmed that in an industrial dispute editors would be free to continue with their normal work.
Secondly, the Amendment gives journalists the right to join a trade union of their choice. This will undoubtedly be seen by trade unionists as an attempt to make the closed shop ineffective. Although I question whether at the end of the day this provision is likely to be more effective against pressure for closed shops than the provisions of the Industrial Relations Act, that is not my main argument. Again, the Government think it much better to rely on agreements within industry making, where necessary, use of the flexibility of the law. The definition of "union membership agreement" has; now been amended to allow unions other than the union which is a full party to the 1030 agreement to be specified in it. In addition, the NUJ have said that the policy of the union is, while seeking 100 per cent. post entry closed shop, not to insist that persons already working in the office who are not members should become members.
My Lords, I do not think it is necessary to spend much time on the right not to be arbitrarily or unreasonably expelled from a trade union, because we have previously debated this extensively. Such a provision would, of course, duplicate Section 5 of the Trade Union and Labour Relations Act. We believe that the procedures of the unions, strengthened by the TUC independent review committee, will suffice to meet the admitted need for safeguards in the rare cases of abuse. It is unnecessary, in our view, to single out the procedures of one union for special statutory provision.
My Lords, while the Government are certainly not prepared to condone industrial action directed at attempts to suppress news or comment, we do not believe that to establish a right of this kind will really help preserve the freedom of the Press, which in this respect, as in the case of other rights listed by the noble Lord, Lord Goodman, has to depend on many factors, one of the most important of which is the tolerance and understanding within the whole industry; I repeat, the whole industry. The definition of "industrial action" in the Amendment is even more far-reaching than the very wide definition in the 1971 Act on which it is based. Are we really intending to say that any action in breach of a charter agreed by industry, even if in contemplation or furtherance of a genuine trade dispute, as a union in any other industry would be able to maintain, is to be restrainable by injunction and punishable in damages?
My Lords, before concluding, I should like to say this to the noble Lord, Lord Goodman, and the House. Although I have been critical of Amendments moved, there is, I believe, nothing between the noble Lord and the Government in wishing to see, in maintaining and in determining to improve, the freedom of the Press. I have tried to meet the wishes of the House by finding ways of bridging the gap, but I regret very much that the gap is so big, so fundamental, that I have not been able to meet the noble Lord. On Third Reading, if Lord Houghton's 1031 Clause 4 is still in the Bill, the House will then have an opportunity of seeing the type of Amendments I have in mind and which I have already indicated to your Lordships' House. I hope the House will appreciate that this Bill touches only on the very edges of the Press. The noble Earl, Lord Drogheda, says that things are very difficult, indeed. The noble Earl knows that as employers they are not required by law to sign any closed shop agreement; they know that. They know that if they wish to sign an agreement they can make conditions to it. All the conditions which noble Lords are asking be put into this piece of legislation they can put in those agreements that they enter into with the journalists. I cannot help but feel that they, the great guardians of freedom, the editors and the proprietors, are unable to guarantee freedom for themselves within the Press, whether it is weakness or whatever it may be. But I believe that they underestimate the spirit of the 27,000 journalists about whom the noble Lord, Lord Goodman, spoke so disparagingly. If there are any guardians of the freedom of the Press, I suggest they are the men and women who write for the Press and not solely those who edit it and own it.
§ 5.46 p.m.
§ Baroness LEE of ASHERIDGE
My Lords, this is a deeply-felt issue, and we should be false to our whole history if it were not debated with very considerable passion. I agree entirely with Lord Goodman when he says that you cannot reduce the argument to trade union rules, and that there are great principles at stake. In return, I hope that Lord Goodman and Lord Drogheda, who put their case so passionately, so genuinely and with such feeling, will realise that there are others of us who may not agree with them in method but who feel just as strongly about this issue of the freedom of the Press.
It may be that some of the differences between us are rooted in history. It is not an accident that it was in the turbulent years of the early 19th century, not way back in the dark ages but, in particular, in the years between 1819 and 1831, when great men and women—I include women because Mrs. Carlile was as much involved as her husband, and the John Hunts and others—cared so passionately 1032 about the right to publish that again and again they found themselves prosecuted, sent to jail, fined, ruined, their characters denegrated in every possible way. There was no hardship that these men would not stand up to when they found themselves faced with a court and with powerful vested interests who would not even allow the poetry of Lord Byron, now considered quite innocuous, we should not take our poets quite so lightly. It was a struggle to have anything printed that was even a satire on George III, George IV, and the rest of them, a struggle to publish anything that seemed in any way to be a reflection on religion. They felt that this was an inalienable right, the right to publish.
It was in those same years, and it was not an accident, when this fight for the right to publish was being fought with such intensity, that you had the agents provocateurs out in Scotland in 1820 against the weavers. I shall not detain your Lordships with these events, but they tell why we, too, on this side feel so passionately about freedom. We do not forget 1820, we do not forget 1848 and a great deal more besides, because what we were fighting for was freedom of expression, freedom to organise; and, of course, we on this side of the House have the most to lose if we lose the freedom to publish. But it is one thing having the freedom to publish and it is another thing having the cash to be able to publish.
I have not at any time been a member of the NUJ, but I have in my time been a part newspaper owner and part newspaper director, and, believe me, my Lords, if you are seeking to publish views that do not command the support of wealthy vested interests, looking for advertisements and the rest is no easy business. So one may have the right to publish, but not the resources to do so. It is a good thing that at the present time we are having a more even balance between employer and employee—between newspaper owner and newspaper employee. I cannot accept that history is completely standing on its head, and that noble Lords opposite—who, if the noble Lord, Lord Goodman, is reckless enough to take us into the Division Lobby, will follow him to a man—are the great champions of freedom of organisation, freedom of expression, and so on.
1033 I ask your Lordships to consider the four parts of Amendment No. 11. It begins by talking about:… the rights of editors and other persons exercising editorial responsibilities to discharge their duties free from any obligation to join a trade union".We agree on that. The only point on which we disagree is whether this can most effectively be done by a strict legal code or by our traditional British way —the way we got the right to publish— of advancing tentatively and empirically. Anyone who knows anything about the trade union movement and the problems a trade union leader has to face, with all the differentials in his own ranks, knows that a great deal can be done patiently, tentatively and empirically that cannot be done by rigid codification. Thus, we are discussing not whether we agree with that part of the Amendment, because we do, but only how it can be more successfully protected.
The Amendment goes on:… the right of journalists to join a trade union of their choice".We have to be careful here. The industry that I knew most about was coalmining. For generations the curse of that industry was the way in which one coalfield was pitted against another, and there was never any hope of improved working conditions until we had the formation of the National Union of Mineworkers, which brought the exporting pits of Fife, the Rhondda and the rest into one union. I am sure that no noble Lord would want to have that kind of fragmentation again. In that journalists want to protect their working conditions and wages—and they have been quite good about doing that so far—they are as entitled to resist fragmentation as is any other union. Where I definitely would not want the NUJ to advance beyond its right to negotiate wages and conditions would be in dictating the policy of a newspaper. That is an entirely different matter and is something we must carefully safeguard. The Amendment goes on to refer to… the rights of editors to commission, publish or not to publish any article free from pressure by industrial action".That is all right so far as it goes, but what about pressure from advertisers and owners? I can imagine the late Lord Goodman—
§ Baroness LEE of ASHERIDGE
My Lords, I apologise to the noble Lord, who is late only in keeping appointments and in no other sense.
§ Baroness LEE of ASHERIDGE
My Lords, I was thinking of the late Lord Beaverbrook. Noble Lords can imagine his raucous loughter if anyone were to suggest that newspaper editors were not influenced by newspaper owners. It is the owner, not the NUJ who has the power to hire and fire. Indeed, one need not wait to be fired; one knows that one must trim one's sails in a certain way if one is to continue in the job. It would be splendid if we had sufficient strength on the employees' side, as well as on the employer's, because the editor would feel more free than he is at present. I agree that one cannot have absolute freedom of the Press. The nearest one can get to it is to have a diversity of newspapers; more money produces more newspapers and with less money we have fewer newspapers and so less freedom of expression. This is, of course, too serious a matter and too deep-rooted in our history for anyone to be frivolous about.
My hope—and I know that this applies to many of your Lordships—is that we may advance to a better kind of society, what I would call a Socialist society, even if that phrase needs to be carefully defined these days. But we need to progress by peaceful, Constitutional, Parliamentary means. That is what some of us have worked for and lived for all our days, for one cannot have a free Parliament without a free Press and the nearest one can get to having a free Press is to have a diversified Press, and the nearest one can come to having editors who are not unduly influenced by either owners or employers is by having bargaining power on both sides.
I am not a good Party politician. I have spent most of my life on the periphery of the Labour Party—indeed, much of it trying to keep inside it and to avoid being kicked out of it—and I trust that your Lordships will not feel that this is entirely irrelevant to the issue at hand. In 1932, I was asked by the 1035 Labour Party of that day to sign a code to the effect that I would never vote again unless it was in strict agreement with the majority decisions of my Party. I said that I could not do that, and I was out of the Labour Party until 1945. But I think that my Party has grown up since then; it has matured and learned the lessons of history. No longer do we make such impositions and in more recent times we have learned the lessons of, for example, the industrial disputes Bill which the present Prime Minister tried to enforce. He made a mistake and he has learned from his mistake.
What is wrong with noble Lords opposite is that they have not learned that there are some things that cannot be achieved by rigid codification. My deep fear is that if we tried to sustain by a strict legal code the precious freedoms we love so much, we would get into the same kind of difficulties that both the last Conservative Government and the last Labour Government got into with their industrial legislation. I may be wrong, but that is what I deeply fear, and I hope that when our views on this issue of the freedom to publish and the freedom to speak and organise go out from this House, the history of the Labour movement will be remembered as well as the history of the Conservative Party, and it will be understood that we both have the same objective. In any event, I do not for one moment believe that the British people would tolerate monolithic control of the Press from whatever quarter such control were threatened.
§ Baroness WOOTTON of ABINGER
My Lords, I feel as passionately about the freedom of the Press as the noble Lord, Lord Goodman, and the noble Baroness, Lady Lee of Asheridge, but I cannot say that I feel very passionately about Amendment No. 5, which is what I thought was now before the House. Would it not expedite matters if we were to devote our attention to the Amendments seriatim, as we have had a large number of eloquent and very moving Second Reading speeches, with many of which I warmly associate myself? I therefore ask the House if we might now ask the noble Lord, Lord Goodman, whether he would be willing to withdraw Amendment No. 5, which seems much less important than Amendment No. 7 and a number of others which follow. 1036 Then perhaps we could get on and get to the heart of the matter.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I do not want to make a speech at this stage, but I think I am right in saying—and the noble Lord the Leader of the House will confirm or reject what I am suggesting —that the noble Lord, Lord Goodman, made it clear that he was discussing the Amendments as a series. That is what I hope we shall do
§ Lord SHEPHERD
My Lords, the noble and learned Lord is quite right. I must say that, with the number of interventions I have made this afternoon in an attempt to keep some order, and with the help that I have received from the noble and learned Lord, I have a feeling that we ought to receive some payment for a form of special duty. I should be quite willing to share it with the noble and learned Lord. The fact is that the noble Lord, Lord Goodman, has moved Amendment No. 5 and that it is a paving Amendment for all the Amendments now left on the Order Paper.
§ 6.4 p.m.
§ Lord ROCHESTER
My Lords, speaking also for my noble friends on this side of the House, I should like to support the Amendment and, in so doing, to keep as far as I can to the heart of the problem; that is, of course, whether measures designed to maintain for the Press that freedom which we all desire should or should not be given legal backing. As has been said in earlier discussions on the Bill and again this afternoon, there are strongly and sincerely held differences of opinion on this point. In my view, there is at least a potential conflict between, on the one hand, a freedom of expression and, on the other hand, what might, if the Bill is passed in its present form, result from union membership agreements in the field of the Press. For, in the last resort, a single union—the National Union of Journalists—might succeed in bringing enough pressure to bear on employers to mean that members of another union—the Institute of Journalists—could lose their livelihood.
My Lords, at the Committee stage of the Bill I made it plain, speaking for myself, that as a result of the experience 1037 of negotiating with trade unionists, I had come to see some of the practical advantages of the closed shop. However, I suggest that, in the case of the Press and broadcasting, the need for continued freedom of expression is of such overriding importance as to mean that there should be no question of members of the Institute of Journalists having to go in fear of losing their jobs because a union membership agreement excluding the Institute of Journalists might be obtained by the National Union of Journalists. It is for that reason that I am happy to support the part of Amendment No. 11 which seeks to give to journalists the right to join the trade union of their choice. If that were opposed by the Government on the grounds that it went further than merely to protect the position of the Institute of Journalists, then I should feel that that was a point on which—if the Amendment were in every respect otherwise acceptable to your Lordships—it might be possible to consider some redrafting of the Amendment before Third Reading. However, I understand that the noble Lord the Leader of the House has already said that the Government consider that there are many more objections to the Amendment than that.
On Second Reading, the noble Lord the Leader of the House reminded us that a Royal Commission had been set up which would inquire from all quarters into such matters as the freedom of the Press. He told us that, within their terms of reference, they would be inquiring into management, labour relations and practices within that industry and that, if the Commission gave sufficient reason, the Government would not hesitate to legislate. It seems to me that the conclusion which should have been drawn from those statements was not the conclusion which the noble Lord, in fact, drew; this was that we should wait until some other time or for another Bill.
My Lords, there will always be another Bill. The trouble is that, when it comes, it does not do what we thought it would. The conclusion which, I suggest, should have been drawn from those statements is, rather, that the Press and broadcasting should have been altogether exempted from the Bill, at least until such time as the Royal Commission had reported. The 1038 noble Lord the Leader of the House also told us that it was wrong for the question of the freedom of the Press to be debated in the context of this Bill. But it is precisely because the Government insist that the question of the Press should be included in the Bill that we are obliged to discuss the question of its freedom in this context. That is why some special arrangements need to be made in the Bill for the Press and broadcasting. In my view, we are not justified in taking the slightest risk of losing our precious heritage of freedom of expression as a possible outcome of the National Union of Journalists obtaining an exclusive union membership agreement.
I shall not weary your Lordships by repeating the reasons given on Second Reading and at Committee stage as to why we on this side of the House and some others of your Lordships on the Cross-Benches and even, in a few cases, on the other side of the House, feel that there is this risk. It may be small, but it is there, and we ignore it at our peril. It has been said that, if the law is introduced into this area, it will take away from employers and trade unions the ability to regulate their own affairs. In the field of manufacturing industry, I have already conceded that that is, for me, a very strong argument. But by no stretch of the imagination can the freedom of the Press and broadcasting be said to be the concern alone of newspaper proprietors, editors, journalists and broadcasters. It is a freedom which belongs to us all.
Then, my Lords, there is the argument that it is all too difficult and that if laws are passed which trade unions dislike it may not be possible for Parliament to make them stick. That is an insidious argument. I do not mean that it is pat forward in an insidious way, but it is inherently insidious in that it implies that it is not Parliament which is sovereign but the trade unions. May not the appetite, even of a trade union, grow from what it feeds on? If the Amendment is not passed, what safeguards can we be offered that one day the National Union of Journalists may not seek to include editors in 100 per cent. union membership chapels, to influence editorial policy, or to see that publication of material not supplied by members of that union is withheld?
1039 My Lords, I should like finally simply to ask a question of your Lordships and, in doing so, to address myself particularly to Members on the other side of your Lordships' House. The question is simply this. What principle is there which is more fundamental to our democratic way of life than freedom of expression? If there is the slightest risk to that principle, should we not all combine to support a law which seeks to uphold that principle, and thus give it support from all parts of the House, so that it has the best possible chance of being observed?
§ 6.10 p.m.
§ Lord CASTLE
My Lords, I express a regret, which I believe is shared by a great many noble Lords on both sides of the House, that a measure dealing with the change in trades union law should have resolved itself almost entirely into a discussion on the freedom of the Press. Of course this is a very great principle, and it behoves us all to give it a great deal of time and attention. Frankly, I feel that it is a misuse of the occasion and of the time of the House to discuss it in what must, after all, be a perfunctory way because we have no original proposals before us for dealing with the Press, except those which have come from my noble friend Lord Houghton of Sowerby, who produced what we on this side believed to be the bridge between our two ideas.
I implore the noble Lord, Lord Goodman, to recognise that the instigator of a charter of this kind was the much lambasted National Union of Journalists. That union, since the beginning of the discussions on this Bill and on this legislation, has on two or three occasions shown its willingness to compromise. It was that union which produced a set of principles, and it was the editors and the proprietors, around a table, who turned them down and who went away. The noble Lord can deny this as much as he likes, but those are the facts reported in his own paper, the Observer.
What, therefore, have we to say to the noble Lord who, as we all know, is everybody's favourite Peer, if he abuses that position of popularity and esteem which he has won in so many fields? What are we to say to him when he distorts the argument this afternoon, to suggesting that what we are arguing about is whether—and these were his words—11 1040 men shall control what goes into every paper? Is it the case that 11 men are sitting in all those papers—12 nationals, 1,300 weeklies—he enumerated? Eleven men, somehow, are spreading their guile over that and dictating what goes in. The noble Lord may disown the reputation he is winning for himself of being opposed to, and being an enemy of, the NUJ. But to distort an argument on the scale he has done this afternoon, to suggest a tyranny of 11 men, does not do him credit.
When, however, he returns to his proposals we have not had a real argument put forward for the proposals in Clause 11. I understand that I am in order in talking about Clause 11, because everyone else has done so—
§ Several Noble Lords: Amendment No.11.
§ Lord CASTLE
I am sorry, my Lords; I mean Amendment No. 11. The Amendment proposes the insertion of(a) the rights of editors and other persons exercising editorial responsibilities to discharge their duties free from any obligation to join a trade union ;It refers to other persons discharging editorial responsibilities. I think that the noble Lord, Lord Goodman, will want to withdraw that, because he knows the office of the Observer very well. I assume that in the office of the Observer there is a setup comparable to that in the Sunday Times, and the people in the Sunday Times office who call themselves editors outnumber the reporters and the subeditors. Are we going to allow to these people the right to contract out of their union? None, or very few of them, would wish to do so. Newspaper offices I have worked in have had sports editors, a deputy sports editor, a production editor for the sports pages, an assistant sports editor, a woman's editor, a woman's page editor, a deputy woman's page editor, a foreign editor, a deputy foreign editor, an assistant foreign editor, a gardening editor and a religious editor. At this stage this is the kind of situation we have to deal with in legislation of this kind. It appears to me absurd to include a clause of the kind suggested which will remove from the ranks of the National Union of Journalists some of its best people, if they want to get out—and there will probably be pressures to get them out.
1041 As I said in earlier speeches, the editor is not as aloof and not as impregnable to pressures as some people would have us believe. When trying to find a definition of "editorial" I went to the Library this afternoon and found a book on words and phrases legally defined. I found that the mere fact that a person is appointed as an editor of a newspaper does not give him control of the paper or of matter to be inserted therein. He is subject to the direction of the proprietor. That, my Lords, is really what we should be dealing with this afternoon, if we were intent on discussing honestly the freedom of the Press.
My Lords, I believe that the noble Lord is completely honest in his desire to put the case of the newspaper proprietors. I congratulate him upon the excellence with which he has done it. But I cannot say that he has put the case of the editors, because the editors—the responsible editors—of the national newspapers, and the main daily newspapers outside, have no organisation other than the NUJ through which to put their case—
§ Lord GOODMAN
My Lords, has the noble Lord never heard of the Guild of Editors, representing all the editors of regional newspapers?
§ Lord CASTLE
I have heard of the Guild of Editors, which lives in the home of the newspaper proprietors, or the Newspaper Society. It lives in a Newspaper Society building, and the Guild is not regarded as the voice of editors in Fleet Street. That I know! But, my Lords, are we not at this stage being misled into believing that we can get away in an other place with the ideas of the noble Lord, Lord Goodman? I think that he knows very well that unless he is prepared to make the same kind of concession, and in the same spirit, as the National Union of Journalists has, we are in for a confrontation. It may not perturb the noble Lord, Lord Goodman, but it perturbs the rest of us, because we do not believe that this is the occasion or the subject on which at this stage we should invite confrontation. I am only sorry that so much of our time has been spent—perhaps in an educational manner —on this Bill at a time when there are matters such as the whole future of the 1042 country financially, economically, in the Common Market or out of it, and that we have had to keep on bashing at the Bill without any hope of this Amendment ultimately reaching the Statute Book.
§ 6.19 p.m.
§ Lord LEE of NEWTON
My Lords, may I ask the Government Front Bench a question about the mechanics of the Bill? We all recall that at the Committee stage my noble friend Lord Houghton of Sowerby moved a new clause. That was to be amended, as we thought, by the noble Lord, Lord Goodman, who then withdrew his Amendment, and my noble friend Lord Houghton of Sowerby did not withdraw his new clause. There was no Division on it. Have the Government now taken over this new clause? I have read the speeches of my noble friend Lord Houghton of Sowerby and my noble friend the Leader of the House. Certainly my noble friend Lord Houghton did not assert that he was speaking on behalf of the Government—in fact he asserted the opposite.
When my noble friend Lord Shepherd spoke, he did not say that the Government had taken over the clause. If they had, the Amendment would have been moved from the Government Front Bench. My fear is that if the Government have not taken over his new clause, it could of course be refused in another place, and some of us will be in a rather peculiar position if, having supported it, as I do, it is not to be accepted there. Therefore, I should be grateful if at some stage the Government Front Bench could say precisely that this new clause, which is now enshrined in the Bill, has been accepted in its totality and that when it reaches another place the Government will not seek to amend it further.
In the course of the debate, one has heard the noble Lord, Lord Goodman, constantly affirm that the Government are in some way wrong to have produced this piece of legislation because it has caused consternation in the newspaper world. I have read in detail the debates in another place, and I agree with my noble Friend Lord Castle that I could not find anything that they were chirping about until they came to the issue of the Press. I would remind the noble Lord, 1043 Lord Goodman, that we began by eliminating the 1971 Act, and at that time the then Leader of the Conservative Opposition, Mr. Heath, pointed out that Conservatives, if and when they were in Government, would not seek to bring back the Industrial Relations Act. Therefore there was nothing in principle between the two sides in eliminating the Industrial Relations Act knowing that it would not come back again if the Conservatives came into power. To assert that in some way the Government have acted in a provocative manner in introducing this rather dull little Bill, with no real opposition in its content until the question of the Press was imported into it by others, is to stand the whole of the English language on its head.
We think in terms of the power that has been displayed. I have seen thousands of working people lobbying Members in the Central Lobby, but if half a dozen newspaper proprietors and editors decide they are going to make a huge national campaign out of something that does not even appear in the Bill, that is where the power really resides. This is the kind of lobby to which we are now being subjected in the passage of this Bill. The question of the closed shop is involved. I ventured at the Committee stage to say that I am not a great adherent of the closed shop. Although I have been in charge of rather big places I have never had a closed shop in my life. I would not concede to any employer that I needed his help to organise my shop. I think it is a weakness. If the employer had any knowledge of his business he would demand a quid pro quo for giving a closed shop which I would not want to concede to him. Therefore, the closed shop itself it not necessarily something which is even discussed at national level.
There are one or two industries where a closed shop is essential. In the coalmining industry, for instance, it is absolutely essential that there should be a closed shop because the question of safety is heavily involved. In the Merchant Navy, where men are cooped together for weeks or months, a closed shop is imperative. The Industrial Relations Act was a shocking instrument to use to break down that which, on safety grounds, was vital and essential. I have not the slightest 1044 wish to see a closed shop. We have two sides: one where a closed shop is essential and one where it does not matter. Now we are being asked, apparently, by the newspaper proprietors, to say that there shall be one industry in which it is taboo. I noticed that when the noble Lord, Lord Goodman, said, "we concede a closed shop," all he meant was that they conceded that they should all be members of a trade union, which is quite a different thing. A closed shop is an agreement, with conditions on both sides and acceptable to both sides. The mere fact of 100 per cent. trade unionism does not mean a closed shop.
We are treading on rather dangerous ground. If we are to concede that there cannot be a closed shop because of the implications raised here about the freedom of the Press, I believe that we must look at the peculiarities of some other industries. We have had recently, much to my dismay, a great strike of the dustmen in Glasgow and Liverpool. I shudder at the thought of what could happen in great cities with the danger of infection and so on. To me it is quite as vital as anything I have heard from the noble Lord, Lord Goodman, on the question of the Press. Infection could spread through millions of people. Are we to say that there should be no right of a closed shop in that kind of area as well?
When one looks at the development of the newspaper industry, I suggest to those who are supporting these Amendments that there is far more reason to fear the activities of proprietors than a trade union in this industry. My noble friend Lady Lee of Asheridge took us back a little in history. I recall that it was a Conservative Prime Minister, Mr. Stanley Baldwin, as he then was, who, discussing Lords Beaverbrook and Rothermere, told us that what these men wanted was power. A power without responsibility, the prerogative of the harlot throughout the ages —that is the expression of a Conservative Prime Minister about the manner in which proprietors were behaving in this industry. Did somebody say, "No"? I will give way if anybody tells me I am wrong about it.
§ Several Noble Lords: Order!
§ The Earl of MANSFIELD
My Lords, I hope that in what some noble Lords 1045 may hope will be the concluding stages in this debate, I do not follow the path trod by the noble Lord, Lord Lee of Newton. If this long, and at times emotional debate, has proved anything to your Lordships—
My Lords, as I understood it, my noble friend was kind enough to give way to me on the question of the definition of "power without responsibility" which he, as I understood it, quoted Mr. Stanley Baldwin as saying, was the position of the harlots of the ages. As I heard him, that followed straight on from his description of the situation in Glasgow. It so happens that I have just come back from Glasgow—
§ Several Noble Lords: Order!
I was going to ask my noble friend—as a matter of fact it will help the noble and learned Lord, Lord Hailsham of Saint Marylebone, if he will listen to what I was going to ask. I was going to ask my noble friend whether he thinks that is exactly what Mr. Alec Kitson is doing in Glasgow —using the prorogative of the harlot, using power without responsibility, in order to put the citizens of Glasgow at an enormous disadvantage in terms of misery and health.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, may I appeal to the Leader of the House that we must seek in some way to proceed according to the Rules of Order of this House and that this is getting wide of this Amendment, beyond, I believe, the endurance of the House.
§ Lord SHEPHERD
My Lords, I have to some extent been disappointed, not so much in the quality of the debate, but how wide of the Amendment this debate has gone. It seems to me that, apart from the speech of the noble Lord, Lord Goodman, and the one that I delivered, we have been repeating what was said on Second Reading and in Committee. It is entirely in your Lordships' hands. I have no more power than any other noble Lord, but I feel that we ought to keep to the Amendment because that is what the noble 1046 Lord wishes to put into the Bill. I think we can all agree that there is a matter to be dealt with, and whether the noble Lord is right or wrong is what should be debated—not the broad rush of principles such as we have had for the last two hours.
§ Lord LEE of NEWTON
My Lords, with respect, I thought that that was what I was trying to do. When we began this discussion, it was agreed that a large number of Amendments had been tabled which some of us had never seen until we got here today. They open up a new field, which was certainly never debated at Committee stage. All I was trying to do was to deny the assumption that we should leave power in the hands of proprietors and editors, while we indict the trade unions for something which they may do in the next century or two. I believe it has been very wrong to widen this debate to include matter which is nowhere to be found in the Bill, in order to create fear that a trade union is trying to take certain powers which, to the best of my knowledge and belief, it has never shown any signs of trying to take.
§ 6.32 p.m.
§ The Earl of MANSFIELD
My Lords, with the leave of the House, I shall make a second speech ; the first was not of great duration and neither will this one be. If this debate has shown anything, it has shown the tremendous cleavage of opinion which exists between those who wish—no doubt properly—to further the interests of the trade unions, and those of us who are worried and concerned that, as a result of the proposals in the Bill, the freedom of the Press may be endangered, if not extinguished, in the future. That, as I understand it, is what the Amendment proposed by the noble Lord, Lord Houghton, at Committee stage was trying to remedy and that is the reason why the noble Lord, Lord Goodman, is proposing his Amendments.
I think I speak for all noble Lords on this side when I say that we are very concerned indeed that those who seek, perfectly properly, to gain as much advantage as they can for trade unionists working within the Press are going to tip over the delicate mechanism, as the noble Lord, Lord Goodman, said, so that it is no longer equal and freedom is extinguished. There have been a number of side issues raised in this matter, and 1047 perhaps the noble Lord, Lord Shepherd, was himself guilty in this respect. It really does not matter what editors are free to do or not to do in relation either to their proprietors or to advertisers. If Parliament considers that they have abused such freedom as they have, or that undue pressures are being brought to bear on them, Parliament can pass the necessary legislation. With respect, I would submit that that is quite superfluous to the argument this afternoon.
§ Lord SHEPHERD
My Lords, if the noble Lord will give way, I made no such suggestion of that sort. In fact, the whole burden of my case is that this is a field in which the Government should not intervene unless they are absolutely forced to do so.
§ The Earl of MANSFIELD
My Lords, we can all look at the Official Report tomorrow, but that is not the tenor of the record I was making at the time. The freedom of the Press and of the printed word, as we have it at the moment, as I am sure most noble Lords would agree, is a fragile thing. The question to be decided is a relatively simple one; namely, are the measures contained in this Bill of such far-reaching effect that this freedom will be imperilled? I know that noble Lords opposite say that nothing is endangered by this Bill and that the situation is merely to be restored to what it was in 1971; that closed shops are a matter of agreement as between employer and employed and no undue pressure will be brought, one hopes, upon anybody to join a union or not to join a union, or to be excluded from a union.
A lot has been said this afternoon about the National Union of Journalists. Perhaps one can make two points about that body. I do not think that we on this side of the House are nearly as frightened of what the National Union of Journalists may do as we are of what the printing unions, for example, may do. They seem to me to pose a far greater threat to the freedom of manoeuvre of the individual editor than any journalists or their union. That is the first matter that might have been ventilated at an earlier stage. The second matter concerning the National Union of Journalists is that everybody agrees that they are a thoroughly admirable body, democratically controlled, with their officers democratically elected; and 1048 that organ has recently gone on record as saying—for example, in statements on 18th March, to which the noble Lord, Lord Shepherd, referred—that they would do their part to see that the freedom of the Press was not imperilled in any way.
But just as Parliament cannot bind its successors, neither can the present heirarchy of the National Union of Journalists, and the question one is bound to ask is: what happens if the membership of that union in future does not take such an enlightened policy as it does today? Are we precluded from legislating for the future? I would respectfully suggest that we are not, and that we must have regard to the future and not rely on the promises and statements of intent, however well-intentioned they may be, of the present.
One can illustrate this by referring to a matter concerning company law; for instance, the protection of shareholders and policyholders in insurance companies, which I understand is to be ventilated in your Lordships' House before very long. It would make not a whit of difference to the Government's attitude if it were said that these companies are perfectly honourable, and their shareholders who elect the boards of directors are equally honourable, and they will not in the future do anything that will affect the rights of policy holders. That, I suggest, would get what I would term, "a big laugh", and quite rightly. Therefore, the present intention of the National Union of Journalists really will not wash when one considers what may or may not happen in the future.
Those of us on this side of the House anxiously examined the original Amendment of the noble Lord, Lord Houghton. I must say I was slightly surprised this afternoon, having read that the Secretary of State in another place had entreated your Lordships to keep your " Lordly noses" out of the matter, had then poked his "common" nose into your Lordships' discussion by using the noble Lord, Lord Houghton, as a mouthpiece.
§ Lord SHEPHERD
My Lords, I really must say that that is quite wrong, because I happen to know the origins of the Amendment of the noble Lord, Lord Houghton. It came as a complete surprise to me and also to the Secretary of State. This was, in fact, private enterprise by the noble Lord, Lord Houghton, and 1049 other Members of this House seeking to overcome some difficulties. I therefore hope that the noble Earl will withdraw what he has said.
§ The Earl of MANSFIELD
My Lords, I am very sorry, but for once I do not think the noble Lord, Lord Shepherd, was in his seat in this House when this discussion took place. I am never one to decry private enterprise, but I can only repeat what the noble Lord, Lord Houghton, himself said at an earlier stage this afternoon. It does not matter whence the Amendment came.
§ The Earl of MANSFIELD
My Lords, your Lordships can ask, but I cannot answer until I see the Official Report tomorrow.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I think that my noble friend was simply making a pleasantry based on what he understood the noble Lord, Lord Houghton, to say as to the origin of his omission of broadcasters from the Amendment which he earlier proposed. I do not think we need engender heat about this. I know that my noble friend did not intend anything which could cause offence either to the noble Lord the Leader of the House or to the noble Lord, Lord Houghton—or even to the nasal organ of the Secretary of State!
§ Lord SHEPHERD
My Lords, what else can we do but respond to the most helpful suggestion of the noble and learned Lord?
§ The Earl of MANSFIELD
My Lords, if I said anything offensive, of course I withdraw it. It would be presumptuous of me, and certainly not my intention, in the course of this debate either to say anything offensive or to hurt any noble Lord's feelings. I am sure that the noble Lord, Lord Shepherd, knows me well enough 1050 for that. Be that as it may, it does not matter to my mind whence the Amendment came. The question to be asked is whether it will have the effect which no doubt is intended. Speaking for myself, and I also think for noble Lords on this side of the House, I fear that it will not. Excellent in intention though it may be, and obviously the product of much careful thought, work and negotiation, it has no teeth. That is really the great divide that I suggest is between noble Lords on the Government side of the House and noble Lords on this side. It is a matter of enforcement and teeth. It is for that reason that we are prepared to accept the Amendment put down by the noble Lord, Lord Goodman, and also because of the thinking behind Amendment No. 28 which was originally put down in the names of my noble friend Lord Gowrie and myself. The noble Lord, Lord Shepherd, when he spoke on Lord Goodman's Amendment, described the rights as I think (and I am beginning to doubt my own note now), "open ended", and of course that is not the situation envisaged in subsections (2) and (3) of our Amendment; but that point is in parenthesis at this stage.
What neither of these Amendments does is to create what has been described by several of your Lordships this afternoon as a rigid legal code. What is done, I suggest, is to create a field in which those such as editors and journalists are free to pursue their career, free from unnecessary, possibly political, influences. That, and that alone, is the reason behind our Amendment, certainly, and I suspect is that of the noble Lord, Lord Goodman, also. We on this side think that the law should provide a safety net which may be used in the final event for the protection of citizens who wish to avail themselves of it. As I have said on another occasion, one hopes very much that all the workers in the field of the media of communications will, in the normal course of events, compose their differences among themselves using conciliation techniques and procedures. If, in the end, they cannot conciliate and cannot come to an agreement, however hard they try, then the mechanism which exists in subsection (9), Amendment No. 23, set out in a different way in Amendment No. 28, comes into being. With respect, this is not going to fetter 1051 the freedom of the unions. It will, however, provide a much-needed safeguard for the Press.
§ 6.44 p.m.
§ Lord SHEPHERD
My Lords, with permission I will say a last few words on what is clearly an important matter, but I will be brief.
§ Lord ALPORT
My Lords, may I ask the noble Lord the Leader of the House while he is doing so to help me, at any rate, and perhaps other noble Lords. We are at the present moment debating 14 Amendments of which four are of substance. He said he accepted some, but I am afraid I could not follow clearly which Amendments the Government were already accepting of those proposed by Lord Goodman.
§ Lord SHEPHERD
My Lords, the Amendments which we had in mind were Amendments which—I must be free and frank with the House—do not go to the kernel of the dispute between us. It is a matter of seeking to develop the extent and coverage of the code of practice and other matters. I would not say they were significant, but they would be a step forward and an effort to meet some of the genuine fears of the noble Lord, Lord Goodman. My noble friend Lord Lee of Newton asked me what is the attitude of the Government to the Clause 4 Amendment by my noble friend Lord Houghton of Sowerby. As I said in Committee, we gave it a cordial welcome. It is one we did not have in mind when the Bill was in another place, but we recognised it as a genuine effort of private enterprise in its best form in seeking to overcome some of the difficulties. The extent of the Government's participation was solely in the drafting. We would not oppose that Amendment if it went to another place.
We have had a debate mainly in the broad brush about the need for certain action. Before we decide on these Amendments, I think it is right for me to ask a specific question of the noble Lord, Lord Goodman, of the House, and in particular of the noble Earl, Lord Mansfield, who is a barrister, who believes in the sanctity of the law and the preservation of individual rights. I drew attention— did I not?—to the consequences of 1052 Amendments Nos. 11 and 23. Number 23 reads as follows:No criminal proceedings shall lie against any person on account of a contravention of the charter but the obligation to comply with the charter is a duty owed to any person who may be affected by a contravention of it and any breach of that duty by industrial action or otherwise is actionable accordingly subject to the defences and other incidents applying to actions for breach of statutory duty ".That provides for injunctions and for suits for damages in the courts. Let us accept that for a moment. If we now take Clause 4(2) as amended, or if it were amended, we should have the four rights put in, but I have to say to the noble Earl, Lord Mansfield, that when one uses the words,for the purposes of subsection (1) above, matters relating to the freedom of the press includethat does not mean it is exclusive of the terms of Amendment No. 11.
As I said at an earlier stage of the Bill, it means that we are being asked to agree to a certain accountability, to the enforcement of law on matters which are not before your Lordships' House this afternoon, matters that are to be decided not by a Secretary of State accountable to Parliament, but relating to an industrial agreement. I have to say to the noble Earl, Lord Mansfield, a barrister, to the noble and learned Lord opposite who has been a Lord Chancellor, and to the noble Lord, Lord Goodman, who is a most eminent solicitor: Is that the sort of proposition that they would wish to have accepted in your Lordships' House this afternoon—that there should be this power of injunction and this power of putting penalties on actions which are not defined in the Statute but could be described as relating to an industrial agreement about which Parliament has had little or no say?
§ Lord GOODMAN
My Lords, if I may spare the noble Lord from labouring this very bad point, I would say that in every part of this town at this moment private citizens are making agreements which have nothing to do with the Government but which are enforceable by damages and by injunction and by other means of resort to the courts. This is going on everywhere at every moment of 1053 the day, and the idea that it sounds astonishing in this Chamber surprises me.
§ Lord SHEPHERD
My Lords, the noble Lord surprises me, because the matters which he is talking about are matters which are freely entered into by individuals. If your Lordships will look at Amendment No. 26, your Lordships will see that the provisions will apply net just to the relations between the National Union of Journalists, or a journalist, and an editor. They could apply to the whole of the newspaper industry—to the printers, to the compositors; they could even apply to those who supply newsprint. That is my understanding of what the noble Lord has in mind, and I hope he will address himself to this question when he commends his Amendment to your Lordships' House.
§ 6.52 p.m.
§ Lord GOODMAN
My Lords, at this hour brevity is obviously humane. I have addressed your Lordships on several occasions and I apologise for doing so; but I think I can offer the House a holiday for many years, unless the Government decide to perpetrate some other outrage!
So far as this Amendment is concerned, the position is very simple. We move this Amendment because we wish to avoid the possibility that what appears in newspapers, magazines and periodicals and what ultimately may appear in books shall be controlled by any small body of men. We make no imputation against a body of men. We cast no aspersions on the National Union of Journalists. We think they are as good a body of men to control the situation as any other. But no body of men ought to control this situation. That is what we are concerned about and that is what we are seeking to amend.
May I invite the Government to consider this possibility. If we divide and if it turns out that the majority is in our favour, between now and Third Reading the Government will have to consider what they wish to do about the situation. I am revealing no secrets when I say that this particular provision has caused deep anxiety among many Members of the Government, and I believe that an opportunity for reconsideration can do nothing but good. I do not believe that the 1054 Government are unanimous on this matter; large numbers in their ranks are as anxious as I am about the subject. Therefore, I earnestly hope that they will take the opportunity to consider that this Amendment is not inspired, as has been rather unfortunately suggested, by the Newspaper Publishers' Association. They have absolutely nothing to do with the matter. They have never met to discuss it and, with the exception of my noble friend Lord Drogheda, I have never discussed it with a single member of the Newspaper Publishers' Association. I am about to resign from the chairmanship of the Newpaper Publishers' Association. As has been announced, I am to retire to " quieter places ", from which Members of your Lordships' Benches have emerged to give me support. I can only say that it is a discreditable suggestion that I am speaking for the Newspaper Publishers' Association. I assure your Lordships that I am not speaking in any sense for the Association. The fact that I am speaking for editors is demonstrated by the fact that the last time we had a meeting of the people who are concerned about the subject, the great majority of the editors of the national newspapers were present. I have reason to believe that not a single one of them dissents from the viewpoint which I am expressing tonight and that not a single one of them does not support it.
Having said this, nothing more needs to be said, apart from two matters. The first is the suggestion that one cannot introduce into a Bill the right for a private person to create a code for himself, or a right for himself, or an obligation for himself in respect of which he can be sued or not sued. That is a complete novelty. Secondly, I should like to make an offer to the noble Lord in order to ease his situation. I shall be perfectly happy if the right to sue and the right to resort to the courts is limited to the four matters which are mentioned in the Bill. I am perfectly happy to accept a compromise on that footing and on the basis that nothing will be actionable or resorted to by the courts. If that is what is worrying the noble Lord, I am anxious, as the noble Lord knows, to reach a compromise that is acceptable to the Government.
It distresses me that we have to divide. I had hoped that over these long and 1055 anxious discussions we might have avoided a Division. I still do not regard a Division in this House as the final word on the subject; but if we have to divide, divide we must. We have a duty to people beyond this House. We have a duty not only to history but to posterity to see that the rights which have been preserved by others at the
§ Resolved in the affirmative and Amendment agreed to accordingly.1056
§ expenditure of their blood are at least preserved by us at the expenditure of our dinner time.
§ 6.55 p.m.
§ On Question, Whether the said Amendment (No. 5) shall be agreed to?
§ Their Lordships divided: Contents 125 ; Not-Contents, 48.1055
|Airedale, L.||Glendevon, L.||Nugent of Guildford, L.|
|Alport, L.||Glenkinglas, L.||O'Neill of the Maine, L.|
|Amherst, E.||Goodman, L.||Onslow, E.|
|Amory, V.||Gore-Booth, L.||Orr-Ewing, L.|
|Amulree, L.||Goschen, V.||Pearce, L.|
|Arran, E.||Gowrie, E.||Peddie, L.|
|Auckland, L.||Greenway, L.||Pender, L.|
|Balerno, L.||Grimston of Westbury, L.||Penrhyn, L.|
|Banks, L.||Hailsham of Saint Marylebone, L.||Rea, L.|
|Barrington, V.||Reay, L.|
|Beaumont of Whitley, L.||Halsbury, E.||Redesdale, L.|
|Berkeley, B.||Hanworth, V.||Rhodes, L.|
|Bessborough, E.||Harmar-Nicholls, L.||Robson of Kiddington, B.|
|Boothby, L||Hartwell, L.||Rochester, L.|
|Broadbridge, L.||Harvey of Tasburgh, L.||Ruthven of Freeland, Ly.|
|Byers. L.||Harvington, L.||St. Aldwyn, E.|
|Campbell of Croy, L.||Hawke, L.||St. Davids, V.|
|Carrington, L.||Hill of Luton, L.||St. Helens, L.|
|Chelwood, L.||Home of the Hirsel, L.||Sandford, L.|
|Cork and Orrery, E.||Hood, V.||Sandys, L.|
|Cottesloe, L.||Hornsby-Smith, B.||Selkirk, E.|
|Courtown, E.||Hylton-Foster. B.||Selsdon, L.|
|Cowley, E.||Kilmarnock, L.||Sempill, Ly.|
|Craigavon, V.||Kimberley, E.||Sharp, B.|
|Cullen of Ashbourne, L.||Kinnoull, E.||Sharples, B.|
|Daventry, V.||Kissin, L.||Sherfield, L.|
|de Clifford, L.||Lloyd of Kilgerran, L.||Somers, L.|
|Denham, L. [Teller.]||Long, V.||Stow Hill, L.|
|Derwent, L.||Loudoun, C.||Strathclyde, L.|
|Drogheda, E. [Teller.]||Lyell, L.||Sudeley, L.|
|Drumalbyn, L.||Macleod of Borve, B.||Terrington, L.|
|Eccles, V.||Mais, L.||Thurlow, L.|
|Elliot of Harwood, B.||Malmesbury, E.||Trevelyan, L.|
|Elton, L.||Mansfield, E.||Tweedsmuir, L.|
|Emmet of Amberley, B.||Massereene and Ferrard, V.||Vernon, L.|
|Essex, E.||Merrivale, L.||Vickers, B.|
|Evans of Hungershall, L.||Mersey, V.||Vivian, L.|
|Gage. V.||Meston, L.||Wade, L.|
|Gainford, L.||Monck, V.||Waldegrave, E.|
|George-Brown, L.||Monson, L.||Ward of North Tyneside, B.|
|Gibson, L.||Mowbray and Stourton, L.||Wootton of Abinger, B.|
|Gladwyn, L.||Northchurch, B.||Young, B.|
|Allen of Fallow-field, L.||Elwyn-Jones, L. (L. Chancellor.)||Lovell-Davis, L. [Teller.]|
|Balogh, L.||Fisher of Camden, L.||Lyons of Brighton, L.|
|Beswick, L.||Gaitskell, B.||Melchett, L.|
|Birk, B.||Gardiner, L.||Milner of Leeds, L.|
|Blyton, L.||Gordon-Walker, L.||Pannell, L.|
|Brockway, L.||Goronwy-Roberts, L.||Popplewell, L.|
|Bruce of Donington, L.||Greenwood of Rossendale, L.||Rusholme, L.|
|Castle, L.||Hale, L.||Shepherd, L. (L. Privy Seal)|
|Champion, L.||Harris of Greenwich, L.||Shinwell, L.|
|Collison, L.||Henderson, L.||Stedman, B.|
|Cooper of Stockton Heath, L.||Houghton of Sowerby, L.||Stewart of Alvechurch, B.|
|Crowther-Hunt, L.||Jacques, L. [Teller.]||Strabolgi, L.|
|Darling of Hillsborough, L.||Janner, L.||Wells-Pestell, L.|
|Darwen, L.||Lee of Asheridge, B.||Wigg, L.|
|Delacourt-Smith of Alteryn, B.||Lee of Newton, L.||Winter-bottom, L.|
|Douglass of Cleveland, L.||Llewelyn-Davies of Hastoe, B.||Wynne-Jones, L.|
§ 7.4 p.m.
Page 5, line 23, leave out (" code of practice containing practical guidance ") and insert (" charter containing rules of conduct").— (Lord Goodman.)
§ On Question, Amendment agreed to.
§ Amendment moved—
§ Page 5, leave out from beginning of line 30 to end of line 33 and insert—
- ("(a) the rights of editors and other persons exercising editorial responsibilities to discharge their duties free from any obligation to join a trade union;
- (b) the rights of journalists to join a trade union of their choice ;
- (c) the rights of editors to commission, publish or not to publish any article free from pressure by industrial action ;
- (d) the rights of journalists not to be arbitrarily or unreasonably excluded or expelled from membership of a trade union ").—(Lord Goodman)
§ On Question, Amendment agreed to.
Page 5, line 34, leave out (" code of practice") and insert ("charter").—(Lord Goodman.)
§ On Question, Amendment agreed to.
§ Amendments moved—
§ Page 5, line 41, leave out ("such practical guidance as is referred to in that subsection ") and insert (" rules of conduct designed to secure the rights mentioned in subsection (2) above together with such others matters as may have been agreed among the parties mentioned in subsection (1) hereof").
§ Page 6, line 3, leave out (" code of practice ") and insert (" charter ").
§ Page 6, line 5, leave out (" code of practice ") and insert (" charter ").
§ Page 6, line 6, after (" above ") insert (" or prepared by the Secretary of State in accordance with subsection (3) above ").
§ Page 6, line 11, leave out subsection (6).
§ Page 6, line 21, leave out (" or (6)").
§ Page 6, line 24, leave out (" code of practice ") and insert (" charter ").
§ Page 6, line 25, leave out (" code of practice or a revised code") and insert (" charter or revised charter").1058
§ Page 6, line 28, leave out (" code or revised code") and insert (" charter or revised charter ").
§ Page 6, line 30, leave out subsection (9) and insert—
§ (" (9) No criminal proceedings shall lie against any person on account of a contravention of the charter but the obligation to comply with the charter is a duty owed to any person who may be affected by a contravention of it and any breach of that duty by industrial action or otherwise is actionable accordingly subject to the defences and other incidents applying to actions for breach of statutory duty.").—(Lord Goodman)
§ On Question, Amendments agreed to.
§ 7.7 p.m.
§ Lord STOW HILL had given notice of his intention to move Amendment No. 25:
§ Page 6, line 46, at end insert:
§ (" (10) Notwithstanding anything contained in this Act, dismissal of an employee by an employer shall be regarded as unfair for the purposes of Schedule 1 to Act, if: —
- (a)it is the practice in accordance with a union membership agreement for all the employees of that employer or all employees of the same class as the dismissed employee to belong to a specified independent trade union or to one of a number of specified independent trade unions ; and
- (b)the reason for the dismissal was that the employee was not a member of the specified union or one of the specified unions or had refused or proposed to refuse to become or remain a member of that union or one of those unions; and
- (c)it is established that the employee, being a journalist as defined in the next following subsection, was not or had refused or proposed to refuse to become or remain a member of that union or one of those unions because a breach or breaches which directly or indirectly affected him or which he reasonably apprehended might so affect him had been, was being, or was about to be committed of a code of conduct or revised code of conduct issued in accord ance with this section or because he reason ably apprehended that such a breach had been, was being, or was about to be committed.
§ (11) For the purpose of the preceding subsection a journalist is an employee whether on a whole-time or part-time basis, whose livelihood is dependent or substantially dependent on the dissemination to the public by him or in which he takes part whether editorially or otherwise of news on matters of public concern or in commenting thereon or on matters of general interest to the public in newspapers, periodicals, television, radio, or other public media for the dissemination of news or comment to the public")
§ The noble and learned Lord said: My Lords, the last series of Amendments having been carried I should like to have 1059 the guidance of the noble Lord the Leader of the House, because it seems to me that the result of carrying the Amendment which leaves out subsection (9) to Clause 4 is to make nonsense of Amendment No. 24. Perhaps in order to make sense of the situation I ought to set this Amendment down again on Third Reading if the Amendments moved by the noble Lord, Lord Goodman, are likely to be removed—if I may use that phrase—when the Bill goes to another House.
§ Lord SHEPHERD
My Lords, if the noble and learned Lord was putting that to me as a question, of course his Amendment goes a little wider than that which the noble Lord, Lord Goodman, has successfully moved into the Bill. I wonder whether my noble and learned friend would consider leaving this until the Third Reading of the Bill, when we might have a look at the consequences of this Amendment and that moved by the noble Lord, Lord Goodman. I will certainly get into touch with the noble and learned Lord before the Third Reading to ascertain whether he thinks that there is sufficient ground for moving it.
§ Lord STOW HILL
My Lords, I am most grateful to the noble Lord the Leader of the House for what he has just said, and therefore I do not propose to move Amendment No. 25.
§ Amendment moved—
§ Page 6, line 46, at end insert—
("'(10) In this subsection—
article" means any matter printed or intended for printing or broadcast or intended for broadcasting by television or radio;
§ " industrial action " means
- (a)a concerted stoppage of work by a group of workers, whether (in the case of all or any of those workers) the stoppage is or is not in breach of their terms and conditions of employment and whether it is carried on during or on the termination of their employment, or
- (b)any concerted course of conduct which—
- (i) is carried on by a group of workers with the intention of preventing, reducing or otherwise interfering with the production of goods or the provision of services, and
- (ii) in the case of some or all of them, is carried on in breach of their contracts of employment or (where they are not
1060 employees) in breach of their terms and conditions of service.")—(Lord Goodman.)
§ On Question, Amendment agreed to.
§ Lord HAILSHAM of SAINT MARY LEBONE moved Amendment No. 29 :
§ After Clause 4 insert the following new clause:
§ Provision us to trade union rules
§ " . For the avoidance of doubt it is hereby declared that nothing in (his Act shall authorise a trade union to adopt rules or procedures which are contrary to natural justice."
§ The noble and learned Lord said: My Lords, in the absence of my noble friend Lord Gowrie I should like to move this Amendment. I move it very shortly and it may be that I can obtain satisfaction from the noble and learned Lord on the Woolsack—or it may be that I cannot. This Amendment was designed to secure a second debate upon a difference of opinion which arose at the Committee stage between the noble and learned Lord on the Woolsack and the noble and learned Lord, Lord Salmon, who spoke from the Cross-Benches.
§ The noble and learned Lord, Lord Salmon, explained that one of the results of removing from the Statute Book Section 6 of the principal Act, which deals with the minimal rules required of trade unions, was to legalise, at least in theory, the insertion into the rules of trade unions, procedures or rules contrary to natural justice. The noble and learned Lord, Lord Salmon, went on from that premise to say that in his " considered opinion " —and in that respect I am quoting his exact words—the unexpected, and I doubt not the intended, result would be to deprive of any kind of Common Law remedy a person so expelled from a union not merely unreasonably, but contrary to the rules of natural justice if, in fact, the rules or procedures adopted by the union made use of the freedom which was given by the repeal of Section 6. The noble and learned Lord the Lord Chancellor contested that. It is fair to the noble and learned Lord to say that this has been the stance of the Government from the very start, both in another place and in Committee here.
§ It seemed to me and to my noble friends that one could not just leave it there, with the noble and learned Lord. Lord Salmon, saying one thing, and the noble and learned Lord the Lord 1061 Chancellor assuring the House that the consequences of the Bill being passed were exactly the opposite. I myself have not sought to take sides between two such eminent legal authorities. I think each of them probably has a good arguable case, or they would not have given expression to the opinions that they did. What I do say with great respect to both of them is that it is not tolerable that the matter should be left in doubt.
§ For this purpose, I will assume in the first place that the noble and learned Lord the Lord Chancellor is right. If the noble and learned Lord on the Woolsack is right, this Amendment is no more than declaratory of the existing law. It is framed in that sense so as not to give offence to the most touchy Member on the Government Benches or of the Party opposite. That is on the assumption that the noble and learned Lord on the Woolsack is right, and the noble and learned Lord, Lord Salmon, is wrong, because the effect of it is simply to give effect to the declared intention of the Government, neither more nor less, and I do not believe it does any more or does any less.
§ My Lords, on the assumption that the noble and learned Lord, Lord Salmon, is right, it is. of course, an absolutely essential Amendment to carry, because it must be made clear beyond peradventure that the declared intention of the Government, that is to say, the declared intention of the Secretary of State in another place, and the express belief of the noble and learned Lord the Lord Chancellor, as to the actual effects of it, declared in this House, should be given effect to. Therefore, whichever of the two eminent legal authorities is right, in my submission, this Amendment ought to be inserted in the Bill, and ought to arouse neither suspicion nor hostility in any breast, however tetchy that breast may be. So in the confident assumption that the Government will embrace me with open arms, and that the House will support me, I beg to move.
§ Lord HOUGHTON of SOWERBY
My Lords, this is an absolute charade. What is natural justice in this context? Why do we not have a law saying no one shall make rules contrary to natural justice—not even the Bar Council, not even the Law Society, not even the 1062 Institute of Chartered Accountants? Why do not we have a law which bans anything which is contrary to natural justice? It seems to me that if this Amendment is only about a difference of opinion between the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Salmon, then I do not think we need an Amendment to the Bill to resolve that doubt. It can be resolved elsewhere if any doubt continues to exist.
My Lords, as I understand it, this Bill does not authorise trade unions to make rules about anything. This Bill deals with the principal Act of 1971; the authorisation of rules will be dealt with when we come to a later Bill. It seems to me that as a legislative Chamber, this one makes an absolute shambles of Bills. This Chamber passes Amendments contradictory to others, and it mutilates Amendments already made. So far as I can tell, the end result of what we have been doing today will be that there are no Amendments at all to the Bill, because the other place undoubtedly will take a different view from your Lordships' House about some of the Amendments that have been put into the Bill.
Moreover, I dismiss the contemptible remarks made by the noble Earl, Lord Mansfield, about my part in the matter. It is completely untrue that I have acted as a mouthpiece of the Secretary of State. I made my position quite clear in earlier debates, and if that is the kind of comment to be made from the Front Bench opposite to any noble Lord who tries, in a disinterested way, to find a way out of a genuine difficulty, all I can say is that I will treat it in future with the contempt it deserves. I will not tolerate that kind of observation about myself. I have never been anyone's " poodle", and I will not listen to such remarks in this House. Whether it offends anyone's taste or dignity, I do not care. I protest.
What is happening is that this Bill will go to the other place in a mutilated condition. It will come back with the verdict of the elected Chamber. One should bear in mind that this Bill comes before your Lordships' House from another place after two General Elections. It seems to me that there is now little more anyone in this House can do to help this situation. It seems to me that the 1063 noble Lord,Lord Goodman, has destroyed every possibility of achieving any purpose for the achievement of which it came to the House. If that is how he wants it, that is how he will have it. So far as I am concerned, there is no other contribution that I can make to the solutions in this House to this Bill. If the House likes to leave the matter to the noble Earl, Lord Mansfield, so far as I am concerned, he can get on with it.
§ 7.18 p.m.
§ The LORD CHANCELLOR
My Lords, it may be helpful if I were to intervene at this stage. It may well be that on this occasion I shall be able to persuade your Lordships that this Amendment should not be approved, and that it will not be necessary to go to another place to deal with the resulting situation, if it is approved. The point raised is an important one, and it has been identified by the noble and learned Lord, Lord Hailsham of Saint Marylebone, in his speech. Let me say that the only thing I would feel tetchy or testy about, or whatever was the elegant word used by the noble and learned Lord, would be any suggestion that the Labour Government would encourage a trade union or, indeed, anyone else, to conduct its affairs in such a way as to deny natural justice or fair play to the individual.
My Lords, the matter arises because as the noble and learned Lord, Lord Hailsham said, the noble and learned Lord, Lord Salmon, suggested in Committee that this Bill might have the very effect of mandating a trade union to introduce rules contrary to natural justice. On that occasion, I advised your Lordships that I thought that any such apprehensions as to the effect of repealing Section 6 were unjustified. But I did undertake, out of respect to the noble and learned Lord, Lord Salmon, to look at the matter again, lest I might be misleading the House. I have done so, and I remain of the same opinion that I expressed in Committee, that the fears expressed by the noble and learned Lord are unjustified.
If I may briefly deal with what I see to be the legal situation, it is this. The affairs of a voluntary association such as a trade union are primarily governed by its rules, and it is against the background of the rules that complaints by an indi 1064 vidual against the trade union must be considered. It would not be desirable that the courts should lightly interfere with the rules of a voluntary body, and they have no inclination to do so. But they have shown themselves ready over the years to review the procedures of such associations, and in particular the disciplinary and appeal procedures, to ensure that the individual receives fair play. Where a person has been deprived of natural justice, either through a defect in the rules or in their application, the courts have readily provided a remedy. It is, of course, the case that it is a feature of the Common Law that it does not stand still. That has been its quality; that has been how it has survived through the ages. But it develops to meet the needs of the time, and if one reads all the cases there are decisions either way on the circumstances of the cases which have come before the courts.
I do not think it would be helpful for me to embark at this hour upon a dissertation on the decided cases, but I venture to think that the matter is conveniently summed up in the Donovan Report in these terms:As in the case of other voluntary associations, if the rules of a trade union are not unlawful, and if the body set up to adjudicate upon alleged offences acts within those rules, and also observes the rules of natural justice, courts of law, upon our understanding of the matter, have no jurisdiction to review its findings or to mitigate the penalty imposed. By the contract into which he has entered the member has agreed that he will abide by the rules of the association, which includes those for the enforcement of discipline. The control kept by the courts is for the purpose of ensuring that the rules are lawful, that they are adhered to, and that the principles of natural justice are observed.That view of the law was accepted without question in the most recent case on this point which I mentioned in Committee, the Enderby Town Football Club v. The Football Association in 1970, and it is my firm opinion that this was the background against which the 1974 Trade Union and Labour Relations Act was passed. The courts were then, I believe, firmly set upon a course which enables them to review the rules and review the procedures of a voluntary body to ensure that they do not work oppression on the individual or deny him fair play.
If that was the position up to last July, when the 1974 Act came into effect, the 1065 question may be asked: what, then, was the effect on the Common Law of inserting Section 6 into the 1974 Act, and in particular subsection (13)? That subsection is in these terms: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.That subsection, as your Lordships will have heard, neither says that it displaces the Common Law rules which I have briefly described, nor does it declare that it is affirming the Common Law rules. Taking Section 6 as a whole, I think one can say only that subsection (13) seems to have been regarded by its author as following naturally subsections (10), (11) and (12) which precede it, and which require rules to be made on procedural matters. I think it was added to round off the section, and I do not think that it was necessary. At any rate, I do not think it had any effect whatsoever on the Common Law, except perhaps marginally to strengthen it on the question of natural justice by giving statutory support to clearly existing law.
There is a well-established principle of construction that a Statute does not alter the general law, unless it uses words that plainly point to that result. Section 6(13) contains no such words, and I do not believe it does alter the law. It follows, I suggest, that if subsections (1) to (12) of Section 6 are to be repealed, subsection (13) must go with them, because it would have no useful purpose to fill standing on its own, as the Amendment proposes it should. I do not myself believe that its repeal could be said to take away any rights which the Common Law previously conferred, nor do I believe that its omission weakens the impact of the Common Law. Your Lordships may ask, on the basis of what I have said, what harm could be done if the matter was spelled out in the Bill, and I think that was a question which the noble and learned Lord did ask. It is a question to which I have applied what I am pleased to call my mind upon this matter. I do not think it would be better to include it, and indeed I feel that there are dangers in legislating in one small corner of a large field. And, indeed, I believe that 1066 to state what seems innocent enough to state could in the context have undesirable results.
First, it might be argued with some plausibility that to legislate in the way the Amendment proposes for trade unions alone—and your Lordships will note that it is not even suggested that it should apply to employers' associations; it is only trade unions that are to be dealt with—might indicate an intention not to apply the law against many other bodies; indeed, the bulk of associations to which the same principles now apply and must, of course, continue to apply if justice is to be done. I certainly think that would be arguable. In other words, it would weaken the general impact of the principles of natural justice upon the operation and rules of voluntary associations. In my view, it would be better to have general legislation or none. My conclusion on the matter is that it is better to leave the whole matter to the Common Law and the robust approach of the Judiciary, certainly in the last 25 years, to this problem.
Secondly, the unions concerned might well ask why Parliament has picked on them for special treatment while ignoring all other associations, including employers' associations. I do not think your Lordships would have a very ready answer to that question. For these reasons, I think that Section 6 of the 1974 Act should be repealed without replacement, but, of course, I shall listen to the views of others who may take part in this debate. I think we are all of one mind as to what the legal position should be ; that, at any rate, I hope, is common ground between us, and I also hope that we can agree on what should be done. I am certainly prepared to discuss any different view which may be expressed— tonight or privately or in any way communicated to me—with those who do not accept my assurances. In any event, the drafting of the Amendment is not satisfactory and I am bound to advise your Lordships not to accept it in its present form. It is much too wide and I believe that it could result in consequences which the noble Lords who support it do not intend. I hope, accordingly, that your Lordships will be disposed to reject the Amendment.
§ Lord GOODMAN
My Lords, I had no intention of intervening on this technical point, but I hope that your Lordships will indulge me if I depart a little from the rules because I am anxious to perform an act of natural justice. The noble Lord, Lord Houghton, made a rather impassioned intervention and I think it would be right, if your Lordships will permit me, to say that it is very much within my knowledge that the noble Lord was invited into the discussions on this Bill by a number of us. We asked him to come in to see whether he could add to the negotiations between ourselves and the Government. He has been tireless in doing so and, although I saw nothing particularly offensive in the jocular observations that were made, as he has taken them very personally I think it would be quite wrong if I were to allow this debate to conclude without contributing that small piece of information.
§ 7.31 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, I had certainly intended to press this matter to a Division, but I was particularly impressed by the courteous and serious minded way in which the noble and learned Lord the Lord Chancellor addressed himself to what I believe has been a general problem. The matter was rendered absolutely essential for discussion by the difference of opinion which arose between him and the noble and learned Lord, Lord Salmon, and I should not have been doing my duty as a representative of the Opposition in this House if I had failed to put down an Amendment ensuring a debate on this important topic on Report. To describe it, as the noble Lord, Lord Houghton, did, as a charade, was doing less than justice to the noble and learned Lord the Lord Chancellor and the noble and learned Lord, Lord Salmon, both of whom expressed strong views on the subject, diametrically opposed to one another, which demanded some form of further discussion.
As for the remarks of the noble Lord, Lord Goodman, of course I accept them unreservedly. It had never occurred to me otherwise than exactly what he has just told the House. I found it extraordinary that the noble Lord, Lord Houghton, became so excited and I was not at all sure what he became excited about, because it seemed to me that my 1068 noble friend Lord Mansfield had made a perfectly harmless jest at which no one ought to have taken offence. If they did, then the noble Lord, Lord Houghton, must have heard him make the most complete withdrawal of it the moment he realised that offence had been engendered, and that withdrawal was endorsed by its acceptance by the Leader of the House. So that to get excited about what is really an important technical dispute does not reflect as much credit on him as most of his contributions would do.
The substance of the matter is not altogether easy. Both the noble Lord, Lord Houghton, and the noble and learned Lord the Lord Chancellor asked, " Why pick on the unions? " I must without delay disclose one error on my part. I had omitted to notice, because I was working under great pressure, that Section 6 of the principal Act, to which my Amendment relates, dealt with employers' associations and not with trade unions alone. I am afraid that this was due to a failure on my part to refer back to Section 6 when I was drafting the Amendment. It certainly would be my intention, if I were pressing this Amendment, to see that that omission was repaired before the Bill left this House. As regards other associations, I would not have hesitated to amend the law by putting before the House a proposal similar to that which is contained in the present Amendment, but it would not have been within the Long Title of this Bill, nor do I think it would have been necessary. The situation which gave rise to my Amendment, as I explained in moving it, was that created by the sponsors of this Bill, who are Her Majesty's Government, in seeking to repeal Section 6 of the existing legislation; an attempt which they brought about and which prompted from the noble and learned Lord, Lord Salmon, the very serious opinion which he delivered to your Lordships' House.
As to what I would advise the House to do with this Amendment, I have a suggestion to make which I hope may be convenient to your Lordships. As I said, it was my intention to press the Amendment to a Division, but I have been very much impressed with what the noble and learned Lord said. I should like to reflect upon it before dividing the House, 1069 and I should also like to consult, if I am able to get in touch with him, the noble and learned Lord, Lord Salmon, whose opinion really gave rise in my mind to the necessity for this discussion. So without prejudice to any right that I might have to table it again on Third Reading, I will at this stage beg leave to withdraw the Amendment.
§ The LORD CHANCELLOR
My Lords, I hope I am in order at this stage, before I put the Question, in saying that I am glad—and I say that in the absence of the Leader of the House, who might have felt disposed to intervene if he were here—that the noble Lord, Lord Goodman, said what he did in respect of my noble friend Lord Houghton, with whom I worked for more than a quarter of a century in another place, whose integrity and independence of spirit is known to us all. I do not think there was any intention to reflect to the contrary in any way. But I am certainly most happy to be associated with the withdrawal and to assure my noble friend Lord Houghton, on behalf of the House, of our total con fidence in and respect for him.
§ Amendment, by leave, withdrawn.
§ Clause 5 [Short title, citation and transitional provisions]:
§ 7.39 p.m.
§ Viscount MASSEREENE and FERRARD moved Amendment No. 30:
Page 7, line 8, at end insert—
(" (4) No provision of this Act which contravenes any Article contained in the United Nations Declaration of Human Rights or the International Labour Organisation Convention concerning Freedom of Association and Protection of the Right to Organise shall have effect.")
§ The noble Viscount said: My Lords, since I tabled this Amendment, the Bill has been very much altered and for this reason I will not keep your Lordships long. However, I should like some clarification from the noble and learned Lord the Lord Chancellor of how my Amendment would have affected the Bill if it was as it came from another place to this House. Articles 8, 19 and 20 of the United Nations Declaration of Human Rights guarantee every man the freedom to join or not to join an association, protects the right of every man to appeal to the law courts of his land and protects 1070 the right of freedom of opinion and expression. I also include in the Amendment the International Labour Organisation Convention No. 87, which concerns freedom of association, and the United Kingdom is a signatory to that Convention. Perhaps the noble and learned Lord the Lord Chancellor will tell me how that would have affected the Bill as it came to this House. What I fear is that when the Bill goes back to the other place they will not accept the majority of these Amendments and that the Bill will therefore come back to your Lordships in much the same form as it first reached this House. I should add here that I ought to have included the European Convention in the Amendment, as that would appear to affect the Bill at least as it first came to this House.
§ My Lords, I should just like to make the point here that I have owned a factory and that I have no quarrel with a closed shop, provided it is done by agreement with the employers and the unions. I should point out, however, that the closed shop could be dangerous in the future if it is set up without the agreement of the employer. It was Trotsky, I think, who said that his vision of society was that the opposition would die and fade away by slow starvation, as he put it. That is a danger, if the unions do not consider themselves to be within the law.
§ My Lords, I was rather amused to hear the noble Lord, Lord Houghton of Sowerby, say on Second Reading that he excused the Bill as drafted by saying that we must have it because it had been promised in the Election Manifesto and was the result of an agreement made with the TUC that, if the TUC would agree to the Social Contract, the Government would have the Act. That is a very odd argument. For instance, the Social Contract has failed. One could drive a coach and horses through it. Apart from that, it is a very odd remark. I am sorry that the noble Lord, Lord Houghton, is not here, but it was strange to say that because something is in one's Election Manifesto it must necessarily become law. I thought Parliament made the laws.
§ My Lords, the point is surely that the trade unions of this country should follow the trade unions of other democracies. If they would only do so, the Bill and all this talk and debate would have been completely unnecessary. It is needed only 1071 because the trade unions in the United Kingdom consider themselves to be outside the Jaw. I have brought this matter up over countless years and, up to 1971, to a great extent, one could have said that the trade unions were for practical purposes above the law. If only they would follow the example of Sweden. After all, Sweden to the average Socialist is a kind of Mecca. In Sweden, however, the trade unions act within the law. If only the trade unions here would do so, they would do themselves a very great service. I am quite sure that if the trade union movement—and, after all, it grew up through the protection of the law— seeks to defy the law, whether it be our law or international law, it will lose its moral credence and eventually destroy itself.
§ My Lords, I shall not say anything more, but shall just ask the noble and learned Lord the Lord Chancellor to explain to me the bearing on the Bill as originally drafted of the Universal Declaration of Human Rights, which a Labour Government signed in 1948, and the International Labour Organisation Convention No. 87, which was also signed in 1948, I believe. I cannot ask about the European Convention, because I have not put it into the Amendment. This is a rather unusual request, but I should like to know whether, if the Bill had not been amended, these international declarations would have run contrary to the Bill so that we should have defied international law. I beg to move.
§ 7.47 p.m.
§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, if there were more people here, I should make a longer speech on this very important Amendment. However, I have the feeling that I might be outstaying my welcome with the rather small audience to whom I shall be addressing myself.
My Lords, the Universal Declaration of Human Rights is clearly not enforceable at law, but whether it is declaratory of international law is a very different matter and I shall not myself venture an opinion about it. I believe that the textbook writers take somewhat divergent views, but it is not enforceable before any known tribunal, as the noble and learned Lord the Lord Chancellor told us at Committee stage. However, I must say to him and to the House very seriously 1072 that the Universal Declaration of Human Rights is one of the most solemn declarations of honour that this country has ever entered into. I have had occasion to remind Parliament of this before in other connections. I reminded another place of it when talking about the rights of coloured immigrants coming to this country and I do not think that any Government should make light of it.
My Lords, the European Convention is enforceable because attached to it is a court and Commission. A Government who chose, as I believe this Government have done, to disregard the terms of that Convention are putting this country in an awkward position for the future until either they denounce the Convention— which I hope they will not—or somebody hauls us up for a breach of the Convention in relation to this piece of legislation. The Bill, as now amended, is very much less offensive both to the Universal Declaration of Human Rights and to the European Convention than it was when we started. But I must say that there are two Articles which, in my judgment, are violently antagonistic, not merely to the terms, but to the whole philosophy of the Bill.
Article 8 of the Universal Declaration of Human Rights says that everyone has the right to an effective remedy by the competent national tribunal for acts violating the fundamental rights granted him by the Constitution or by law. Article 6 of the European Convention says that in the determination of his civil rights and obligations or of any criminal charge—but that is immaterial—everyone is entitled to a fair and public hearing within a reasonable period of time by an independent and impartial tribunal established by law. If we have heard it once from the Benches opposite, we have heard 50 times during the course of these debates that we do not want to bring the law into the defence of civil rights. I must tell the House that in my considered opinion that is contrary both to the Universal Declaration and to the European Convention wherever a civil right is granted. The whole philosophy of Members opposite, and of Her Majesty's Government, is that in this vital field of trade union relations they are entitled to legislate in such a way as to trust individuals to give the right of expression, to give the right of association or to withhold 1073 them, if they think right, without any reference to a tribunal appointed by law. The inevitable result of repealing Sections 5 and 6 of the 1974 Act is to fly in the face of world opinion which was embodied in the Universal Declaration, and of the express legal obligations as contained in the European Convention. It is not simply that the words are irreconcilable with this piece of legislation; it is that this piece of legislation is contrary to the whole philosophy of these vital human declarations.
My Lords, the amended Bill is not so bad as was the unamended Bill. I think that Article 19 of the Universal Declaration is now cleared, because that deals with freedom of opinion and expression, and what we have just done makes the Bill compatible with Article 19. Article 20, on the other hand, is still broken, in my opinion. That article states that no one may be compelled to belong to an association. The noble and learned Lord on the Woolsack said that that is the wrong one, because Article 23(4) states that everyone has the right to form and join trade unions for the protection of his interests. But they must be read together. Both are obigations under the Universal Declaration. What the noble and learned Lord did not tell the House is that Article 23, on which he relied, begins by stating that everyone has the right to work, to free choice of employment, to just and favourabe conditions of work and to protection against unemployment.
What has happened as a result of the Bill, even in its amended form, is that in a closed shop situation—which is the situation which we have to posit in discussing this Bill—a person can, in effect, be compelled to join an association, namely the specified trade union, under penalty of losing his right to work and to free choice of employment. Anyone who can read that as consistent with the Universal Declaration of Human Rights is obviously a disciple of Pecksniff and Uriah Heep, and not of Common Law. We hear a lot of demands—sometimes from my own Party—for a Bill of Rights in this country. The difficulties about this are well known, and I will not explore them now. A notable addition to the ranks of those who demand it is Lord Justice Scarman, a former 1074 chairman of the Law Commission, in his Hamlyn Lectures just published. But no one can pretend that any Bill of Rights which we formulated would fail to catch every one of the provisions of this Bill, even as amended, except in so far as our Amendments have rendered them compatible. No Bill of Rights that anybody could devise, which had any relevance to the modern industrial situation, would be compatible with this Bill which—if there were a Bill of Rights— would have to be declared ultra vires by the Judiciary.
If the noble Lord the Lord Chancellor and the noble Lord the Leader of the House—whose courtesy in returning I acknowledge—really examined their consciences about the Bill, they would find that by no stretch of the imagination can what they have done be reconciled with the Universal Declaration, and that not only is it irreconcilable with the Universal Declaration, but it is also irreconcilable in the respect I have set forth, to the European Convention. I may say in passing that, but for the fact that we have carried the Amendment regarding conscience in addition to religion, it would also have infringed Article 9 of the European Convention. But we have put that right so far.
My Lords, this is a very sorry day in the history of Parliament. I am grateful to my noble friend for having drawn attention at the end of our Report stage to what seems to be the fundamental realities, and the moral and political realities of this Bill. This Government have now committed themselves to a course of policy which infringes the rights of man.
§ 7.56 p.m.
§ The LORD CHANCELLOR
My Lords, I, too, wish that the House were fuller in order to have a full discussion of this matter which I agree is of very great importance. There are two aspects in regard to the Amendment which has been moved. The first aspect has been dealt with succinctly by the noble and learned Lord who has just spoken; namely, to point out that the Universal Declaration is not an enforceable legal instrument, nor do I think it was intended to be. To suggest now that, without embodying specifically any of its provisions into our own law, it should be applicable to our own law and our own courts would 1075 involve a new and, I think, undesirable departure in both international law and in our domestic law. Parliament can make parts of its law from provisions of conventions, like the International Labour Office conventions, and they then become part of our law. But the United Nations Declaration and, indeed, the ILO conventions themselves—save those which have been expressly made part of our law by Act of Parliament—are not part of our legal system. Indeed, by their very nature they do not present provisions which are comparable with our own domestic law.
However, I will consider the more serious aspect of the Amendment; namely, the suggestion which has been made that in the legislation of 1974, and in the new Bill, the Government have acted in defiance of their moral and legal obligations under several of the international conventions. The Government and I do not accept this. The Bill, and the 1974 Act, are designed to facilitate —after many unsuccessful attempts—the promotion of good industrial relations for the benefit of employers, employees, and the community as a whole, as an attempt to substitute conciliation for conflict. I will not go over that ground again, but that is the design, the purpose, of the legislation.
My Lords, with regard to the matters mentioned by the noble and learned Lord in respect of the Declaration of Human Rights, he identified Article 20 of the Declaration as one of the provisions which he contended was infringed by this legislation. Article 20, paragraph 2 declares that no one may be compelled to belong to an association. But even if that applied to trade unions—and I submitted in Committee that the trade union position is governed by Article 23 of the Convention—there is no legal compulsion on anyone to join a trade union. A person who does not wish to do so in a closed shop situation is free to remove himself from that situation.
In fact when this article was passed at the United Nations, the representatives of the United Kingdom Government abstained and explained that we did not think it possible to prohibit pressures to join an association or to enforce such a prohibition in practice. But as I said, the article has been interpreted as not applying to trade unions which are separately dealt with in Article 23. When 1076 Article 23 was discussed at the United Nations, the New Zealand delegate stated specifically that his country did not regard Article 20 as biting upon the closed shop and as affecting trade unions—that is the article dealing with conscience matters. The United Kingdom delegate endorsed that view which was not opposed.
With regard to Article 23 of the Declaration which statesThat everyone has a right to form or join trade unions for the protection of his interests",we support that principle absolutely and we shall be legislating for that in the Employment Protection Bill. The closed shop does not, in our view, conflict with it. If closed shop agreements are made, they have the effect that someone must join a particular union but is not prevented from joining another union or unions as well.
The noble and learned Lord raised the provisions of Articles 8 and 10. As I ventured to say in regard to the earlier Amendment that we have been discussing, nothing in this legislation will detract from the individual trade unionists, or whoever the affected person may be, his chances of action at Common Law through the appropriate courts. Common Law has retained this power of supervision and has done so more and more energetically and determinately in the last quarter of a century and that protection for the individual will remain.
I have also looked at the European Convention, and in my view there is nothing in that Convention which conflicts with the content of the legislation we are considering. As to the ILO Convention—I imagine it is Convention 87 which the noble Lord for the Opposition has in mind—that Convention declares that workers have a right to establish organisations of their own choosing and subject to the rules of the organisation concerned to join organisations of their own choosing. I submit that there is no conflict here with anything in our legislation. Indeed, the Employment Protection Bill will establish a right to join a union. The Convention specifically does not make such a right absolute. If an organisation wishes to exclude people, it may do so. Nor does the Convention declare that workers may not be asked to join particular organisations additional 1077 to those of their own choosing. Accordingly, I have not seen anything in the ILO Convention which conflicts with our legislation or our obligation either moral or legal. Accordingly, not only for the reasons that the Amendment would create an unacceptable and indeed impossible change in our general attitude towards unenforcable international instruments on the merits of the matter, it is not supported by the facts or provisions of the Government's legislation.
§ Viscount MASSEREENE and FERRARD
My Lords, I thank the noble and learned Lord the Lord Chancellor for that explanation. I had thought that the United Nations Declaration of Rights and other articles of the United Nations were, in fact, international law. The noble and learned Lord the Lord Chancellor has explained to me that it is law regarding this country only if we so make it the law of the land. But there is the moral aspect and, to my mind, if you sign these declarations at the United Nations and do not uphold them in your own law, you are, as the noble and learned Lord beneath me said, being rather a Uriah Heep—or a hypocrite, anyway.
It rather distressed me that several noble Lords opposite in a sense threatened that, if we moved any Amendments against this Bill, we should be promoting a clash with the other place, and that we should not try and overrule the other place, which of course we cannot do, anyway. I think that attitude is unfortunate. What are we here for? If we are here for anything, it is to uphold the liberty of the individual, to uphold freedom. If we cannot do that, there is very little object in our being here. I do not want to delay your Lordships' House, but I shall repeat that I hope Her Majesty's Government will take notice of the debate we have had on this subject and that, when it comes to Third Reading, there will be some satisfaction—although it cannot be 100 per cent. from the point of view of the Opposition—and that the Government will genuinely try to safeguard the rights of the small man. My Lords, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.