LORDS AMENDMENT (Hansard, 3 November 1975)

§ Lord JACQUES
My Lords, I beg to move that this House doth not insist on their Amendment No. 9 to which the Commons have disagreed for Reason No. 10. The effect of the Amendment was to introduce the word "likely". The Bill provides that an employer will not have to disclose information if he can show that substantial injury would be caused to his undertaking by such a disclosure. The effect of the Amendment is that the 878 employer would merely have to show that disclosure was likely to cause substantial injury. There are three reasons why we cannot accept the word "likely" in that place. First, it would mean that it would weaken the right of trade union representatives to be given information for the purposes of collective bargaining. Secondly, the uncertainty which the word "likely" would cause would mean that there would be more cases for the Central Arbitration Committee and their task would be much more difficult. Thirdly, the word "likely" was not introduced in the corresponding clause in the 1871 Act, and we see no reason at all why it should be incorporated here.

§ The Earl of MANSFIELD
My Lords, it is nice that the noble Lord, Lord Jacques, is gradually coming round to the view of accepting the 1971 Act as Holy Writ. One hopes that as time goes on he will accept more and more of that excellent piece of legislation. It is worth trying to recollect for a moment the way in which your Lordships' House tried to improve this not very elegant piece of legislation both in Committee and on Report. So far as the legal connotation is concerned, the word "likely" is perfectly easy. What we tried to do in Committee by drafting an Amendment, which we withdrew, and by a further Amendment on Report, which we did not withdraw, was to try to ensure a fairer balance regarding information. There is nothing about price-sensitive information or anything like that in this Amendment. It is a way of trying to ensure that where an employer feels that the information would cause injury the burden on him should not be so hard as it was before the Amendment was made. The Amendment does not seek to go beyond that.
The matter was considered in a similar way during your Lordships' discussions last week on the Industry Bill. That is a matter to which I should like to return briefly because a similar point was then taken to this point although, unfortunately, your Lordships' House became rather embroiled with other considerations. The point I wish to make is this: what is the effect likely to be 879 where one has disclosed information which is likely to cause serious damage to the undertaking, to people who may not be employees of that undertaking and who will have no regard, let alone loyalty, to the undertaking and thereafter make improper use of such information? The noble Lord, Lord Beswick, is not in his place, but I hope it is not unfair to say he glossed over that element of the discussions. They cannot just be dismissed. Trade union officials—and I do not seek to say anything against them—have their jobs to do as do the rest of us. Their jobs and loyalties are of course to their members; but recently we have frequently come across inter-union disputes, one of which I referred to not so long ago over the first of these Amendments before your Lordships' House today. Where is the safeguard written into this Bill, or any other provision for that matter, against this prejudicial use of the information? It is for that reason alone that we have tried to amend Clause 18(1)(e) —in other words, to try to allow the employer, with a little less of a burden, to claim that substantial injury would be likely to be caused if the information was disseminated.
What Reason are we given for the Commons disagreement to the Amendment? It is merely: Because in order to avoid having to disclose information under the Bill the employer should have to show that the disclosure would actually cause substantial injury. It will be a difficult, if not impossible, task on many occasions, first because, as I said, it will be impossible for the employer to show that there has been, or is likely to be, impropriety in the dissemination of the information; and, secondly, that such impropriety will actually cause substantial injury.

§ Lord DRUMALBYN
My Lords this is an Amendment which I moved, and I moved it simply to gain clarification. It seems to me that one can judge only what is likely to happen. How can we possibly tell that substantial injury will be caused? How can anyone know that for certain? It is a very small point but I hope that when this clause is interpreted, it will be interpreted in that way; otherwise, it will be impossible for the employer ever to show that he is likely 880 to receive substantial injury. Even when injury is 99 per cent. certain, he will still not be able to get away under this clause if it is interpreted literally. Therefore, I hope it will be interpreted liberally.

§ Lord HOUGHTON of SOWERBY
My Lords, this seems to me to be a lot of "word chopping". The Bill said "would" and the Amendment said "be likely to". The other place have sent the Amendment back here on the grounds that "would" means "would actually". In those circumstances, is it not best to leave it alone? Clarification does not seem to be coming from attempts at clarification.

§ Lord SHINWELL
My Lords, surely there is something illogical in the submissions which have been made in support of this Amendment. The noble Earl, Lord Mansfield, said it would be very difficult to prove that something would happen, and he has suggested in substitution the word "likely", but if you cannot prove "would", how do you prove "likely"?

§ The Earl of MANSFIELD
My Lords, with the leave of the House, you prove "likely" on the balance of probabilities.