HL Deb 03 November 1975 vol 365 cc907-35

[Nos. 15B and 15C]

[As Amendments to Amendments numbered 15A]

In paragraph (b), after ("well-founded") insert— ("and if so whether the party aggrieved has suffered material or pecuniary loss by reason of such failure and in what amount, and in such case directing the party in breach to pay that amount")

At end insert the following new subsection— ("( ) Any decision by the said body shall be final and conclusive between the parties and any decision of the said body made under paragraph (b) of the foregoing subsection shall be enforceable in like manner as an award made in pursuance of an arbitration agreement by an arbitrator in accordance with the provisions of the Arbitration Act 1950.")

4.45 p.m.


My Lords, I rise to move Amendment No. 15B standing in my name and I would, with the leave of the House, also seek leave to move Amendment No. 15C with it because these two Amendments stand or fall together. I fully agree with the noble and learned Lord on the Woolsack that the Government have now introduced an important new Amendment to this Bill, a fact which alone justifies the somewhat protracted proceedings which this Bill has pursued in its course through Parliament. I hope that we may have a relatively short debate because we have debated many of these issues before.

I propose first to put my remarks into context, and secondly to explain why it is that I have thought it right to put down these Amendments and what in my view they will do. May I say that I was delighted to see the name of the noble Lord, Lord Wigoder, on them too. Last week on 20th October we decided that Press freedom, to which all of us express, and I doubt not attach, great and sincere importance, was not simply a matter for the two sides of the industry but was something in which Parliament, and more than Parliament the public and people, have a right to a say. We therefore inserted in the minimal requirements of the charter Amendments which were designed to show that we were particularly concerned about a few cardinal matters. We wished to preserve and to defend the independence of editors not to suppress or distort news, and not to have it suppressed or distorted. We wished also to preserve and defend access to the columns of the Press by outside contributors, and we also desired to preserve and defend the de facto situation under which journalists have a right to join theoretically any institutions but, in practice, either of two important institutions.

The question remains at the point where we adjourned; what is to happen if the charter is breached? At the moment, and without the noble and learned Lord's Amendment No. 15A, the answer is absolutely nothing. It is apparently true that it may be referred to, like the road code, in any proceedings in court which may take place. But unlike the road code, which is based on a system of law founded on negligence and breach of statutory duty, there is no system of law founded on negligence or breach of statutory duty on which this could hang. The result is that, so far as any practical result would obtain, nothing would happen if the code were breached.

Indeed, no one needs, in theory at any rate, ever know of the extent of the breach. That certainly did not seem good enough to noble Lords on these Benches, and I would think that this was also the view of the Liberal Benches and the Cross-Benches. The noble Lord, Lord Goodman, at that stage put forward an Amendment which still stands in his name as, I think, Amendment No. 16B—your Lordships will see it on the Order Paper—in which he invokes the principle of public policy, and says that a breach of the charter will be against public policy.

I was grateful to the noble Lord the Leader of the House for agreeing to adjourn at that stage. The Amendment had only just gone down. Public policy, as most of us know, is a difficult horse to ride and, speaking for myself, I wanted to consider what the effects of that Amendment might be. I did consider them. I do not want to enter into a technical discussion, but if those who are interested in technical legal matters and wish to challenge me would do so privately, I am prepared to defend what I now tell the House, to the best of my knowledge and belief, would be the effect of that Amendment.

If a member of the National Union of Journalists were to be unjustly expelled by reason of a breach of the charter, it is my opinion that under the Amendment of the noble Lord, Lord Goodman, that could be remedied in court by an ordinary action. I do not regard that as certain, but as probable by virtue of recent decisions of the courts. If an applicant to be a member of the NUJ were unjustly excluded from membership by reason of a rule or conduct in breach of the charter, I think it possible, but not likely, that he would have a remedy in court. That is the conclusion which I formed, rightly or wrongly. On the other hand, the position of outside contributors is, at least in my opinion, wholly unprotected by that Amendment, as is the position of the Institute of Journalists, in any possible conflict that might arise in any given instance between them and the NUJ—totally unprotected—and also I think the position of editors is, as such, totally unprotected under the effect of that public policy Amendment. Therefore I thought it right to table an Amendment in my own name.

I have fully accepted that the Government, in putting forward their Amendment No. 15A,were desiring to be constructive and helpful, and to improve the situation. I hope they will concede the same degree of sincerity to me in having tabled my Amendment. The Government propose a body and the noble and learned Lord the Lord Chancellor has, perfectly candidly, admitted that he does not wish to specify what the composition or rules of procedure of that body may be. I think there are disadvantages in that course, but he has decided to take it and he has explained his reasons for doing so. The body will be charged with the function and duty of considering the complaint of any person—which, I take it, would include an editor or an outside contributor or a member of the Institute or of the NUJ—that the Charter has been broken. They are bound also, as I read the Amendment, to decide aye or no whether the complaint is made out, in other words whether or not the charter is or has been broken; and they are also charged with the obligation, as I understand it, to publish their findings in a way in which the fact of the breach or of the dismissal of the complaint will be made known to the public.

These are advantages. But let us suppose that somebody makes a complaint that the body, whatever they may be, decide in his favour that the complaint is made out, that the charter has been breached, but he has lost his livelihood or has suffered damage or has suffered materially in his pocket as a result of the breach of the charter of which, by now, we must all assume we are all in favour. What remedy has he if Amendment No. 15A is passed unamended? The answer is that he has no remedy whatever. I do not understand that anything the noble and learned Lord has said seeks to controvert that. He gets the benefit of a declaration and he gets the benefit of publicity, but he gets no compensation at all, nor any other remedy. Is that good enough in the field of the freedom of the Press, about whose principles at least we are now agreed and about which at any rate a majority of us think that public and people and Parliament have as much right to make pronouncements as have the two sides of industry itself? The answer I give is that it is not good enough; that where a man has been injured by a wrong we, as Parliament, should provide him with a remedy by way of compensation, and the Amendment which I propose would give him that remedy.

I have deliberately not sought to go beyond the terms of Amendment No. 15A. I do not agree with the observations hostile to and critical of the courts which have fallen from Back Benches and from the Front Bench opposite, though not—noticeably not—from the noble and learned Lord the Lord Chancellor himself. I do not agree with them, but I have accepted the view of the Government and of the Back Benches opposite. I have said, "Very well; have your body set up by your own industry without any more precision than the Lord Chancellor has been good enough to give us this afternoon. Let that be the body. Let them be something therefore in which you have complete confidence; but do not deny the aggrieved party a remedy." And what I have sought to add is, I should have thought, the bare minimum. It is simply that if a party is wronged by a breach of the charter and he goes to the body constituted by the Government and the industry and they find the complaint proved, they are to say whether or not there has been material loss suffered and, if they find that material loss has been suffered, then they are to direct the erring party, the party in breach, to give compensation in that amount. I cannot see anything wrong in that, and in order to make sure that the compensation, when ordered, is paid, I have provided that it shall be treated for the purposes of enforcement in exactly the same way as the award of an arbitrator under the Arbitration Act 1950.

I have tabled that Amendment in the sincere hope of being helpful. I have sincerely tabled it not with the idea of entering into conflict with the Government or with another place, but in the belief that I am perfecting that to which they have now put their hands. I desire to put it before the House in the most conciliatory manner possible; but I beg the noble and learned Lord to accept it and so put an end to any possibility of conflict between the two parts of this Parliament, and so to put an end to the protracted and sometimes unpleasant differences of opinion that we have had over the past months. I beg him to accept it on behalf of the Government and, if he does, I assure him that the thanks which will be expressed will come from the heart. But if he does not, then I am bound to tell him—not that I would impute anything of the same sort to him personally—that I should treat it as one of the signs that those who take a stronger view about these matters in the Government and who may not be Members of this House do not intend what they do to be effective at all. I say no more. I have put down the Amendment in the hope that it may be satisfactory to all parties in the dispute. I hope it will be accepted. I beg to move.

5 p.m.


My Lords, I sat through practically the whole of the Second Reading of this Bill, through the two days of the Committee stage, through the Report stage and the Third Reading and I did not say a word, so I hope that the House will allow me to say something now. When I first saw the Bill, I was aware that the Industrial Relations Act 1971 had not met with universal approval and I was not surprised to hear that in the Social Contract it had been agreed that the Labour Government, if elected, would repeal the Act. This they set out to do last year but, owing to Amendments in this House and something of a schemozzle in the other place, two sections were left extant. I thought that the object of the present Bill was to remedy that situation.

I was therefore surprised to read that the object of the Bill was to attack the freedom of the Press. It did not seem to be a Bill on the Press, though I noticed that, even on Saturday, a Times headline described the Bill as "The Government's Bill on the Press". I have very strong views on the freedom of the Press. Indeed, if I may say so, all my life I have always fought in every direction for as great a freedom of expression as possible. I believe that we must have an Official Secrets Act, but, even before I appeared for Miss Barbara Fell, I thought that certain sections of the Act were far too wide and that it was a sledgehammer used on ridiculous occasions, of which that was an example. I have always opposed the pre-censorship of plays and I helped to get that abolished. I successfully defended Lady Chatterley and I was, and am, of the opinion that any law making it a criminal offence for adults to read whatever they want to read in that field always has done, and always will do, more harm than good. All my life I have passionately believed that a free Press is the life-blood of democracy, so I approached the present Bill in a very prejudiced position, particularly in relation to editors.

I sat through the Second Reading. There was, of course, no dispute about the freedom of the Press as such. Nobody wanted the Press controlled. It was a clear and obviously sincere division of opinion as to whether we should, at the end of the day, get what we all wanted —namely, the protection of the freedoms of the Press—by the path of consensus or by the path of force; in other words, by the force of law.

Here, again, I was not impartial because I am a lawyer. Of course I believe that everyone—and that includes trade unions—must be subject to law and that, normally, the proper place to get disputes decided is the courts. So I listened with the greatest interest to what was said. It was, in a way, a curious debate for me because, while I was very much in two minds about the whole matter, as far as I could make out everybody else in the Chamber was absolutely certain either that the best bet was the path of consensus, or that we must use force—the force of law. In the end, I voted against the Amendments of the noble Lord, Lord Goodman, and in favour of those of the noble Lord, Lord Houghton of Sowerby. The reasons were the following. First, I remembered the right reverend Prelates—who, if I may say so, we are always very glad to see here—but who are here because there was a time when the Church was so strong that the King could no longer rule the country without arriving at a consensus with the Church. That did not mean that the Church ran the country. The King ran the country, but there had to be a consensus. Then there were the Barons, as King John found at Runnymede. Then there were the big landed proprietors, so many of whom were hereditary. Then there was the new and rising middle class.

I was not at all surprised to find that, in the world's oldest and, at one time, largest industrial democracy, a time had arrived when the workers also had to be consulted. I never thought for a moment —and I said so at the time—that in these days a Government could come to Parliament and say, "We have a Bill dealing with trade unions, to control them. It has eight pillars. We have not consulted the trade unions. We refuse to consult the trade unions on any of the eight pillars and we will hear them only as to matters of detail." I did not think that the workers would stand for it and they did not.

My second reason was that I have had a great deal of experience of cases in which trade unions come before the courts. I never specialised in trade union cases. I was always fortunate in having a very general practice. It is not merely that I was counsel in Rookes v. Barnard and that, in nearly forty years of practice at the Bar, I appeared in many, if not most, trade union cases and therefore have practical experience as to how it works out if you seek to apply the law to them. Before I come to that, may I deal with a point which I feel, for personal reasons, I must raise?

The noble Lord, Lord Goodman, does not usually say anything twice, but he said one thing twice in the course of these debates. He said that, in his view, any idea that the courts had acted with anything other than their usual impartiality was a myth. He asked to be told whether other noble Lords agreed. At one point, he referred to a person whom he called, "One very distinguished Member of your Lordships' House, the previous noble and learned Lord the Lord Chancellor" and went on to say that this person had nodded his head in assent. That was when he had said it the first time. The previous noble and learned Lord the Lord Chancellor was the noble and learned Lord, Lord Hailsham. What confused me a little was that, when he said that, the noble Lord, Lord Goodman, looked at me. I do not wish to be on record as assenting to that view. I am sure that the noble Lord, Lord Goodman, would not have said what he did say twice if he had not thought it relevant to the Bill, and I believe he was right and that it is relevant and I shall shortly explain why I dissent from the view in question.

The Taff Vale case was decided at the beginning of the century by Mr. Justice Farwell against the trade union. The Court of Appeal unanimously reversed his judgment in judgments which, at the time, were said to be compounded of irresistible logic. Whether or not that was right, it did not stop the House of Lords from reversing the judgments of the Court of Appeal. In 1902 came Quinn v. Leetham and an attempt to bring pressure upon an employer to agree to a closed shop; that is to say, there was an attempted boycott. It was decided, apparently, on what seemed to many a new concept in law which was there called a "civil conspiracy". There were some eminent lawyers who evidently thought that, consciously or unconsciously, the judges were bending the law against the trade unions. It was something of a minor election issue in 1906, and I have myself had the Osborne case which decided that a trade union could not take part in politics or operate a political fund. To remind your Lordships of what that meant, the next Election—that of 1910—saw the birth of the Labour Party, and even in 1920, when there were 89 Labour Members, 88 were sponsored by trade unions because they could not have afforded to be Members of Parliament if it had not been so. So when they got in again in 1911 they proceeded to deal with Osborne.

As soon as they came in in 1906, the Liberal Party repealed Taff Vale, but we seen a photograph of a Liberal Party Election poster—for the Liberal Party felt very strongly about this—which was a simple poster of a High Court Judge sitting on the Bench in wig and robes handing a flail to a man marked "employer" for him to administer to the workers. I suppose that that was as succinct a way of making the point as possible.

In the presence of the noble Lord, Lord Byers, I am most anxious not to misrepresent in any way the position of the Liberal Party at the time, so may I quote from the winding-up speech of the Home Secretary on the second trade union Act, that of 1912? On 30th May 1911, at column 1022 of the Official Report, the Home Secretary said that one of the two main objects of the Bill was— to relieve trade unions from the harassing litigation to which they have been exposed and set them free to develop and do their work without the perpetual check and uncertainty of frequent trials and without being brought constantly into contact with the courts. It is a very unseemly thing, and indeed in the House of Commons we must regard it as such, to have the spectacle we have witnessed these last few years of these workmen's guilds, trade union organisations, being enmeshed, harassed, worried and checked at every step and at every turn by all kinds of legal decisions, which came with the utmost surprise to the greatest lawyers in the country. It is not good for trade unions that they should be brought in contact with the courts, and it is not good for the courts. The Liberal Home Secretary was, of course, Mr. Churchill. The courts hold justly a high and, I think, unequalled prominence in respect of the world in criminal cases, and in civil cases between man and man, no doubt, they deserve and com mand the respect and admiration of all classes in the community, but where class issues are involved, and where party issues are involved, it is impossible to pretend that the courts command the same degree of general confidence. On the contrary, they do not, and a very large number of our population have been led to the opinion that they are, unconsciously, no doubt, biased. [HON. MEMBERS: 'No, no' and 'Withdraw,' and interruption.]


I must ask hon. Members to allow the right hon. Gentleman to proceed.


On a point of Order. Is the hon. Member speaking for himself or for the Government?


That is not a point of Order"—

Some things do not change very much! Mr. Churchill: I am sure the House will feel that that is an abuse of interruption on a point of Order [Hon. Members: 'Withdraw.'] I have not the slightest intention of withdrawing, and I repeat what I said, that it is unfortunate that these collisions occur between the courts and the great trade union bodies. [Hon. Members: 'Withdraw.'] I have only got two or three more words to say, and I am quite indifferent to the interruptions. It is for those reasons that we have sought to find in our Bill some bulwark which will stand between the trade unions and the courts. Some authority which will be able—[Hon. Members: 'Withdraw.'] We have tried to discover some authority—[An Hon. Member: 'We do not attack the judges.'] No, you do not attack them. As a matter of interest, on the following day an application was made to Mr. Speaker on the footing that Mr. Churchill had erred by attacking the judges otherwise than on a Motion. But Mr. Speaker ruled, first, that the point ought to have been taken the day before; and, secondly, that in any case as he had said "unconsciously, no doubt, biased" that made it all right. I have drawn four conclusions from all this. The first is that, whether rightly or wrongly, the Government of the day, supported by many eminent lawyers, did think that, consciously or unconsciously, the judges had been biased against trade unions. Secondly, in my judgment such a view has no modern justification. I say that because the noble Lord, Lord Goodman, said that sometimes they decided cases in favour of trade unions. He referred to two, Sorrell and Ford. I am very familiar with the Sorrell v. Smith case; that was in 1925, I think. I think the Ford case was won in 1969.

I should make it plain that while this period lasted long enough, it started at the beginning of the century, but it finished in 1913, because by that time—there having been two General Elections; two Governments which held this view; Parliament having passed trade union Acts, greatly extending the extent to which workers could combine against their masters—the judges obviously accepted this.

Thirdly, it was said by some of those behind me that the reason why the trade unions felt so strongly about not getting involved in the courts was due to the Industrial Relations Act. I accept that that had its effect, but they also have their memories of their contacts with the courts from the past. I do not think that this is helpful. When one is trying to solve a modern problem, memory is not always a help, as anybody who has had anything to do with Northern Ireland knows. But they are human beings and that is the fact.

Fourthly, I am not one of those who thinks that Mr. Churchill was always wrong. Indeed, if I may say so without giving any offence to anyone at all (because these are matters of opinion), my own three favourite Home Secretaries have always been Mr. Churchill, Mr. Butler, and Mr. Jenkins; and I think Mr. Churchill's instinct for keeping the trade unions out of the law courts was right.

Certainly, in my experience of trade union cases, one learns a few elementary things pretty quickly. The first elementary thing one learns—and it is a fact, and it is no good quarrelling with facts —is that one cannot make men work with a man whom they will not work with. They are human beings. You can fine them; you can send them to prison. That is not quite accurate; you can if you shoot them. But in a democracy you cannot do that. Secondly, there is our history of trying to stop strikes by law. It was for 94 years—a long time—illegal for employees in certain public utilities to strike. That was not a law which was ever enforced, because it could not be enforced. I am afraid that I part company from two noble Lords with whom I usually agree, the noble Lord, Lord Goodman, and my noble friend Lord Snow, both of whom seem to think that we cannot have a law which cannot be enforced; that is not so.

This is not only in the field of trade unions. Some lawyers have been heard to say that a judge cannot make a decree of specific performance of a contract for personal services. I do not believe that that is the law. It is not that they cannot; it is simply that they do not; and as they are governed by precedent one may even say that it comes to the same thing. They have found from experience that an order of that kind cannot be enforced; and any judge is reluctant to make an order which cannot be enforced. If you seek to make him do so that does nothing whatever to uphold the rule of law; on the contrary, it is destructive of the rule of law, because every time an order which cannot be enforced is made it serves merely to bring the law itself into disrepute.

The Amendment of the noble and learned Lord, Lord Hailsham of Saint Marylebone, is, I am sure it will be felt, of a minor character, in that all it does is enable a decision made by those who create the charter to be enforced by the courts. I am sure that the noble and learned Lord will tell me whether I am wrong, but that means that the proprietors, and the editors and the journalists are not to be allowed to sit around a table to think it out for themselves. I am not suggesting that if they ask for some legal backing we should give it to them; that is another question. The noble and learned Lord does not want them to sit down and consider this at all, unless the proprietor knows that if the journalist breaks the code on behalf of his union (the National Union of Journalists) and the proprietor suffers damage, he will be able to sequestrate the funds of the trade union.


My Lords, the noble and learned Lord has said that I should interrupt him if I thought he was wrong. May I say, without arguing the matter in a second speech, that I think he is entirely wrong in ascribing those views to me, because I do not hold them at all. He will also acquit me of discourtesy if I do not make a second speech in the middle of his.


My Lords, the noble and learned Lord on the Woolsack will no doubt have an opportunity to say whether he thinks I am right in my view that if the Amendment is carried it will be open to the court, if an award is made which is not carried out in the payment of money, to sequestrate the funds of the trade union. I must say that it seems to me that this is all the wrong atmosphere. If we are right in thinking that at the end of the day the best plan which has been put forward for maintaining the freedom of the Press is to leave it to the Press themselves—proprietors, editors and journalists sitting round a table—I suggest we ought not first to provide for enforcement. We ought to leave it to them; and, of course, if they think they need some legal backing, then they can say so.

Finally, I would have said one word to the noble Lord, Lord Carrington, if he had been here, but as he is not I will address it to those on the Front Bench opposite. In so doing I am wearing another hat, and that is my hat as the former Chairman of the All-Party Committee on House of Lords Reform. It concerns the constitutional issue involved. Whatever view we take, I think everybody in this House will agree that the Government moved a long way to try to meet the anxieties which had been expressed, and, because of that, I have respectfully to suggest to the House that this is not at all a suitable issue for a constitutional crisis. I may remind the House that the day afterwards, The Times, in a leading article headed, We must guard our freedom", said this: Mr. Foot has made useful concessions. It is doubtful if much would be gained by the Lords pressing it to the point of denying the Government its Bill this Session. The first and best safeguard against that sort of threat is in the hands of those who work in the industry, managers, editors, journalists, and if they possess the clear sightedness and will to guard the essential freedom entrusted to them, they have the power to do so. On the same day the Guardian inquired, whether it is the sort of issue that should precipitate the worst crisis since the war between Britain's two Parliamentary Chambers. A thoughtful charter may be a greater defence than Lord Goodman's amended battlements. Some constitutional confrontations have compromise written all over them. As they ponder the issues and the possibilities the Lords may well conclude that this should be one. Presumably both The Times and the Guardian have seen the Amendment moved by the noble and learned Lord, Lord Hailsham, and have not departed from that position. I was interested to notice, too, that whatever the Press may originally have felt there has, I think, been a very noticeable change. Indeed, yesterday neither the Sunday Times nor the Observer had a word to say about it at all.

For those reasons I very much hope that your Lordships will agree that we should now leave it to the profession itself, or parts of it, and not at this stage seek any legal consequences from what may be done. On any view, whatever view we may take about this, this would be a most unsuitable case for a constitutional clash between the two Houses when the difference between us now is so small and when everybody, I think, accepts that it is an honest difference of view as to the best way of safeguarding what we all want—the freedom of the Press.

5.24 p.m.


My Lords, my noble friends on these Benches would want me at once to convey our deepest gratitude to the noble and learned Lord, Lord Gardiner, for his extremely effective reminder to your Lordships that the Liberal Party has always championed the cause of the oppressed. At the turn of the century the trade unions were the oppressed, and I see nothing inconsistent in the views which were expressed then on behalf of the Liberal Party and the views which are expressed today by those of us who feel that perhaps the balance has now somewhat tilted and that now, perhaps, the danger is that it may be the individual who is being oppressed and that the trade unions as bodies have indeed established for themselves a secure and firm base in our society.

My Lords, I was sorry to hear the noble and learned Lord, Lord Gardiner, add that it may be that even today, after the many (if I may say so respectfully) wholly admirable judicial appointments which he made when he was the Lord Chancellor, he still has doubt as to whether the trade unions would get a fair hearing in our courts.


My Lords, if the noble Lord will forgive my interrupting. I said the precise opposite. I said that nobody could hold such an opinion in modern times. This was a period which ended in 1913. I thought I was perfectly clear about that.


My Lords, if I misunderstood the noble and learned Lord I apologise at once. I hope I did not misunderstand him when I heard him go on to talk about a constitutional crisis and clash. This is a highly premature stage at which to talk in those terms. What is happening at the moment is surely that there is a sensible, informed discussion going on between two bodies of people, one in the other place and one in your Lordships' House, each determined to secure as best they can the freedom of the Press, and each taking part in a civilised exchange by way of Amendment and counter-Amendment. What your Lordships are considering today is, therefore, an Amendment to a further Amendment proposed in the other place.

It would be a great mistake to underestimate the degree of agreement that has already been reached as a result of this interchange. When this Bill first came to your Lordships' House there was no protection whatsoever for the freedom of the Press. We have now agreed on all sides that a charter is desirable. We have reached the stage where there is substantial consensus as to what the contents of the charter should be: not a consensus yet as to the final detail, but a substantial consensus as to the nature of the matters it should cover. What now remains for your Lordships' House is the final stage: whether that charter can he made effective. One can understand those who believe that there will be a spontaneous explosion of bonhomie in the newspaper industry over the next few years which will render any form of supervision unnecessary and which will mean that all parties can be relied upon safely and explicitly to observe the charter. We on these Benches certainly hope that that will be the situation. But there have been isolated instances in the past few years—happily isolated ones—as a result of which it appears to us possible that the charter may be breached in a dangerous way; in a way which will imperil the freedom of the Press, and in circumstances in which it is therefore desirable, if possible, to find some way to ensure that those breaches are remedied should they occur.

The original suggestion in the name of the noble Lord, Lord Goodman, was a simple and effective one. It was to make any breach of the charter a breach of statutory duty. One can well understand, if I may say so, why, in the other place, that was not accepted and why it is now clear, I think, that your Lordships would not wish to proceed along that path. We can all understand that, in the aftermath of the Industrial Relations Act, an atmosphere has been created in which it is for many people not possible to use the words "law" and trade union "in the same sentence, although if I may say so I sometimes think that perhaps there are politicians who revel in that situation very much more than the average member of the average trade union; and that there are a great many trade unionists who recognise of course that over the next few years we shall have to come back to a situation in which the trade unions, like any other powerful body in the country, are subject to the law of the land.

But accepting, as we do, that that is not practical politics, the question now arises: what are the alternatives? We have one move, again towards this agreement, from the Government with the Amendment in the name of the noble Lord, Lord Shepherd. That is Amendment 15A, which sets up a body with these various functions and powers and, if I may say so, with an indication that those powers may have to exceed being merely persuasive. As your Lordships will see, the body is to have the function, among other matters, of securing the publication of its own decision. If one envisages a situation in which there has been an unwarranted censorship imposed on the contents of a newspaper, one might venture to ask how this body is to secure the publication of the decision which rules that the censorship was unjustified. Is it to be suggested that there are to be continual door-to-door distributions of political pamphlets on behalf of the Government? Or is it not recognised that, in fact, some means will be necessary of ensuring that the Press do, in one way or another, accept the decision of this body?

We should want to accept the Amendment moved in the name of the noble Lord, Lord Shepherd, and to take the matter a little further. There is no great dividing gulf here. We want to take it a little further; to take the matter to the extent that where the body does find that pecuniary loss has been caused it can make an order for the payment of the amount suffered. That would give some protection to the journalist who is wrongly excluded from membership and therefore deprived of his livelihood and some protection for the freelance writer, the outside contributor, who might find his contributions are unable to be published.

My Lords, I would add only this. I do not want to anticipate any later discussion; but I do not believe there is anything inconsistent between the Amendments in the names of the noble and learned Lord, Lord Hailsham of Saint Marylebone, and myself and the subsequent Amendments in the name of the noble Lord, Lord Goodman. They are two schemes that can operate side by side that will give some limited protection in the very, very occasional case in which the charter is being defied and in which freedom of the Press is thereby endangered. My Lords, in those circumstances no one will pretend that this is a particularly neat scheme. The noble and learned Lord who sits on the Woolsack can no doubt point to many legal anomalies that will result if these Amendments are adopted; but they are, I venture to suggest, the best that we can do in these circumstances. They are an effective step forward towards protecting the freedom of the Press and towards protecting the individual who otherwise might find himself oppressed.


My Lords, when the noble Lord, Lord Wigoder, says that Amendments Nos. 15B and 15C take only a little further the Amendment proposed by my noble friend Lord Shepherd, he fails to understand, if I may say so, how much further these Amendments go. What is proposed in these Amendments is to introduce the pecuniary penalty for the breach of the code of practical guidance with all the dangers that can flow from trying to impose those penalties upon trade unions. The original code of conduct imposed in the earlier part of the Industrial Relations Act 1971, contained no such provision for reference of breaches of that code to an independent tribunal; still less did it propose that financial penalties could be imposed for breaches that might incur losses to the parties concerned. Nothing of that appears in the 1971 Act.

In the principal Act, to which this present Bill is an Amendment, the idea of a general code for the conduct of industrial relations was re-embodied in the law with a code approved by Parliament for general application. At no stage was the Press separated from the rest of the trade union movement in provisions for a code of practical guidance. It was non-discriminatory in its original concept; it was non-discriminatory in its renewal to the Act of last year. Now, in this Amendment we get a proposal to discriminate against trade unions particularly in one section of industry. The Government's Amendment carries the matter further: a step proposed to meet the fears and anxieties that have been expressed in this House and elsewhere many times about the freedom of the Press.

My Lords, the Government have gone a long way to meet those fears by providing for a tribunal that could consider alleged breaches of the code and pronounce publicly their findings upon the allegations made. Public opinion can be a salutory influence on misconduct or upon activities which are regarded as contrary to the public interest. When once the financial penalties are introduced, how are they to be recovered? First, these penalties can be imposed by a body which is not a court of law. In Amendment No. 15C this tribunal is to be clothed in the authority of a body set up under the Arbitration Act 1950;but recovery, presumably, must be through the process of law, that process prescribed by the law for the recovery of penalties imposed by a statutory body.

Are we to be put back to the situation which is still so vivid in the memories of many, when attempts were made to recover from a trade union, when strikes took place and when benefactors, presumably still anonymous, came to the rescue of the trade union, heavy fines imposed on it which the union refused to pay? Are we to invite a return of those conditions? Have noble Lords on the Front Bench opposite not learned from the experience which was so bitter and electorally so disastrous following the 1971 Act? The mistakes they made then were prodigious and grievous; and. politically, I think the Conservative Party suffered more from the follies of that Act than perhaps from any other part of their policies during their period in Office.

My Lords, I think there are great dangers in carrying proposals for a tribunal to the point of authority to award pecuniary damages. I am surprised that any noble Lord should think that the Amendment proposed by the noble and learned Lord, Lord Hailsham, carries the matter only a little further. It carries it into fresh and dangerous territory which we can judge from our own recent experience. I sincerely hope that this House will not embark on this course. It is, I know, an easy phrase to use, as did the noble and learned Lord, Lord Hailsham, that when damage is done then there should be a remedy by way of compensation. We know the problems of that and we have had experience of them.

My Lords, in conclusion, I must repeat that I think it is asking the trade union movement as a whole too much to accept discrimination against trade unions in the newspaper industry which are not imposed upon any other section of the trade union movement. We know that the freedom of the Press is fundamental, but it has to be shown that it will be seriously threatened if the proposals of the Government are put into operation with the safeguards that are now available in a code of practical guidance, and in reference to a tribunal in the event of alleged breaches. Public opinion can be brought to bear. The Press are in a special position to give publicity to the outcome of proceedings before a tribunal of this kind. It need not be hidden through lack of space or lack of inclination on the part of the editors to give public notice to what may have transpired at a hearing of a tribunal. All that can be known to the public, and public opinion can be brought to bear. There are some matters for which no financial penalty is either appropriate or satisfactory. If there were serious breaches of the code, I suggest that fresh notice would have to be taken of its operation, and the award of money damages would not be the answer to any serious breaches which might occur. I beg your Lordships to reject Amendments Nos. 15B and 15C and to adopt the Government's Amendment No. 15A which goes a long way to meet some of the objections which have been raised in earlier debates. I am sure that in the other way lies disaster, and the repetition of events which I for one would not like to see occur again.


My Lords, I had intended to make one speech which dealt with all the Amendments. As some speakers limited themselves to this Amendment, it may be wrong to regard this as a general debate without indicating that that was intended.


My Lords, I made inquiries of the noble and learned Lord earlier in the day. His view was definite, that we should confine ourselves to these Amendments and the noble Lord's Amendment should be dealt with separately. That was why I adopted that course. I hope that the House, that course having been adopted, will follow it.


My Lords, I can be extremely brief. It may be helpful to the House if I give an indication of my intention in relation to the developments that might ensue. If the Government should indicate a willingness to accept the Amendment from the noble and learned Lord, Lord Hailsham of Saint Marylebone, I would of course be satisfied with that and would give serious consideration to withdrawing my own Amendment, although, as I shall indicate, I have a natural preference of authorship for that over the Amendment of the noble and learned Lord, Lord Hailsham. But I regard his as satisfying the principle involved in this matter; and hence I would be prepared to withdraw my own Amendment.

If the Government are not prepared to accept his Amendment, I will support his Amendment. If the Government, in the course of this debate, indicate a preparedness to accept my Amendment, I will not support his Amendment. I think a situation as clear cut as that should be made plain during the course of the day. The only point I should like to make about the noble and learned Lord's Amendment and my own Amendment is that we may reasonably he reproached—and I think that the noble Lord, Lord Wigoder, dealt with the matter—with the fact that we have not produced masterpieces of jurisprudential drafting. The answer to this is that the first Amendment I put down was, as the noble Lord, Lord Wigoder, was kind enough to say, clear cut and simple. We then observed that there was to be considerable resistance to any suggestion that there should be a clear cut and simple assertion of a legal remedy.

What we have tried to do is produce what we want with the least possible affront to the Government Benches. That is not an entirely simple matter. It has led to the ambiguities and difficulties in which we find ourselves. I make no apology for them. If we can avoid the so-called constitutional confrontation by a little ambiguity and obscurity in drafting, I am all for it. If we can make it clear that we are concerned not to encourage litigation, but to discourage it, to leave it as the last resort for the man who has no other means of redressing his injury—which is all we want—then, indeed, we shall be entirely satisfied, even if the draftsmanship may be criticised in the years to come. That is the simple position, and that is all I wish to say on this Amendment.

5.44 p.m.


My Lords, I should like to assure the noble Lord that I did not feel in the least affronted. Whether he will be affronted by what I am about to say, I know not. It is that neither the Amendment of the noble and learned Lord, Lord Hailsham, nor the Amendment of the noble Lord, Lord Goodman, is acceptable to the Government. I do not expect that announcement comes with any surprise to anyone in the Chamber. The noble and learned Lord, Lord Hailsham, began his speech by recognising the importance and significance of Amendment No. 15A, of the creation of the new supervisory body which the Amendment, if it is passed, will achieve. It is a crucial step. It will be a body set up by and within the industry itself to perform and overlook the terms of the charter, the application of the charter and how it is lived with in the industry. It will also have a conciliatory role, and that role would come into sharp contradiction and conflict with the role which the noble and learned Lord seeks to give it; namely, the role of imposing awards of compensation to be enforceable through the machinery of the courts. That is not consistent with the kind of super body that the Government and Amendment No. 15A have in mind.

I turn at once to the consequences in law which the proposal of the noble and learned Lord involve. He proposes that its awards of compensation should be enforceable in the same way as arbitral awards are enforceable. The effect of that would mean that the complainant would go to the court and seek the assistance of the court, at the last resort at any rate, to processes of recovery which could, as has been said both by my noble and learned friend Lord Gardiner, and the noble Lord, Lord Houghton of Sowerby, result in the sequestration of funds of a union, if it was a union that was complained of, or bankruptcy of an individual if he had no resources. We would be enmeshed once again in the misery which led to the kind of situation, as has been said by the noble Lord, Lord Houghton, in the ConMec Case. It is because of that possibility taking place, which would wreck relations within the industry, wreck the running of Fleet Street, and would damage the freedom of the Press by its implications and consequences, that we reject the imposition of the bringing in of the courts for enforcement proceedings in that way.

That is the Government's objection in principle to this Amendment; but it is not the only one. In practical terms, the consequences of providing for compensation to be payable to any aggrieved party could be enormous. The noble and learned Lord's Amendment No. 15B is not confined to making compensation available to individuals, say an editor expelled from a union, or an occasional contributor who was not allowed to contribute an article. The aggrieved party could be a newspaper proprietor claiming enormous sums for the loss of an issue, or loss of sales because an article was not printed. The financial implications of this Amendment, whether for unions and their individual members, or for an individual editor whose action may have breached the charter and thus, for example, occasioned substantial loss to an advertiser, are deeply disturbing.

We do not think, for the reasons I have indicated, that the idea of compensation is an appropriate one to introduce. We also fear, as I have said, that it would transform the proposed supervisory body into something wholly different from what we have in mind. To impose this as part of the machinery for setting up the charter and the supervisory body would, in our view, from the very outset, pejudice discussion of the charter and the chances of arriving at sensible agreed policies within the industy. In our view, it would poison the whole thing from the beginning. That would in turn increase that which is provided for but which we hope will not have to take place; namely, the possibility that the Secretary of State will have to produce a charter. Everybody seems to think that would be very much a desperate last-resort measure. It is much better that the parties in the industry should produce it.

Accordingly, we take the view that a supervisory body of the type we have suggested to fulfill the objects which we have suggested goes a long way to meeting the fears of those who consider that the existence of a charter agreed within the industry does not of itself guarantee Press freedom. We remain convinced that Press freedom, as was said by the noble and learned Lord, Lord Gardiner, in his remarkable speech, is best safeguarded by those within the industry on the basis of understanding and agreement. I beg your Lordships that these new provisions we are submitting for a charter within the industry, upheld by co-operation within the industry and sustained by the existence of this supervisory body, should be given a chance.

We, as a Government, are firmly on record as having given the promise to take whatever action is necessary, including legislation if that seems to be the best way of proceeding, to safeguard Press freedom if what is proposed in the Bill should prove ineffective. Weal so await, as does everyone, the report of the Royal Commission on the Press, which will have the opportunity to study all the factors affecting Press freedom which we are so anxiously discussing, far more fully than has been possible in the context of this Bill. The Government have undertaken to give careful consideration to the recommendations of the Royal Commission on the Press, but until we know what those recommendations are it seems sensible to us to see how the new machinery in the industry, for which we are providing, works, without intro ducing legal sanctions and remedies which may well prejudice its success from the very outset. I therefore invite the House to agree that we should accept the Commons Amendment No. 15, as amended by Amendment No. 15A, and that we should not make the further additions of Amendments Nos. 15B and 15C.

5.55 p.m.


My Lords, my noble and learned friend the Lord Chancellor mentioned my name and although I am not especially anxious to speak, I feel obliged to say a word or two. Nobody in this House on either side likes quarrelling with his old friends, disagreeing with them on an important matter and changing for one night the political habits of a lifetime. I felt obliged to do that on the last vote we had on this matter and I still feel obliged to do it, almost for the opposite reason from that which the noble and learned Lord, Lord Gardiner, attributed to me. It is not that I think legal sanctions are likely to work very well: it is much more that I fear the total absence of any kind of indication of the attitude of comparatively sensible men may get us on a slide so slippery and on a slope so steep that we shall see the whole thing disappear before our eyes. I was horrified to hear my noble friend Lord Houghton talking about the impossibility of distinguishing between this trade union and any other. It is very different from other trade unions. We talk of the newspaper industry. It is an industry, but it has other responsibilities and values which are totally different from the normal industry. It is rather like talking about the entire medical profession and its ancillaries as an industry. I am afraid I was speculating darkly on the speech of my noble friend Lord Houghton as to whether he would make a similar speech about the entire medical profession, if that chose to take on a trade union role —and it may do.

I think I am one of the very few Members of your Lordships' House who are comparatively familiar with Eastern Europe, and familiar not in a purely disapproving sense. I know some of their virtues as well as their vices. They have an energy and purpose which I should like to see in my own country; but they have certain constraints, to put it mildly. My fear is that we may slide, with the best will in the world and with all the talk of consensus, into a state where we do not have their energy and purpose but do have their constraints. I suspect that is not impossible. I can quite easily imagine this country becoming similar to an Eastern European society—on the whole not so efficient and not so forceful, but with the Press gone already. However, if Parliament—and I mean both Houses—does not show any awareness of this danger, then I would guess that within 10 years those of us who are still alive would think that we had betrayed a most important value. This may happen; life is uncertain.

When I last spoke on this matter—and I have spoken only twice with great reluctance—I said that every ordinary creative writer in England would agree with what I had said. I said that completely without authority, but I knew I was right; and without any prompting from me 50 of the most eminent writers of England wrote a letter to the Times Literary Supplement, entirely unprovoked, his got a very inadequate reply. They still view this entire proposition with horror. The printed word is too important to be regarded purely as a matter of industrial dispute and I am afraid I shall have to vote, with deep and bitter regret, for Amendments Nos. 15B and 15C; otherwise I would feel that I had betrayed part of my life which is valuable to me.

5.59 p.m.


My Lords, I think it is possible that the House may be ready to dispose of this matter, not the less effectively because the debate has been a short one. I do not propose to exercise at any great length the right of reply, but I should like to say one or two things to those who have taken part in the debate. In the first place, I was grateful for the courteous way in which the noble and learned Lord dealt with my Amendment. I thought that some of his language was a trifle exaggerated. He always sounds so reasonable, but when he says that we should wreck the whole running of Fleet Street, I really feel he was stating what will not turn out to be the case, whatever the fate of this Amendment.

The noble and learned Lord, Lord Gardiner, gave us in the first 20 minutes of his speech a history of the very well-known decisions of the courts between 1895, I think, and 1913. They are now irrelevant, as he himself pointed out, and wholly irrelevant to my Amendment, because the whole object of this Amendment is to take the decisions of the arbitral tribunal set up by Amendment No. 15A and not the effect of the judges' decisions.

The noble Lord, Lord Houghton, was under a considerable disadvantage because he misunderstood the effect of this Amendment. He kept on talking about a pecuniary penalty. No penalties are suggested by this Amendment; simply that if a man has suffered a wrong, he should have compensation if the wrong takes the form of pecuniary disadvantage. That is not a penalty. Nor is it a penalty imposed by a statutory body, because the body by which it will be imposed is the body set up by the industry itself under Amendment No. 15A. Nor is there any discrimination against trade unions, because of course the penalty, if it were a penalty —the order for compensation—might apply to proprietors or editors no less than to trade unions, and might be to their advantage. So there is no uneven justice in this case.

I quite agree, of course, that an arbitration award can be enforced in the courts. But the courts have no power if the arbitrators have behaved properly, which they would do in this case, to go behind it; they have to enforce it. I can see absolutely nothing in the suggestion of the noble and learned Lord, Lord Gardiner, that one wants the people concerned in the industry to sit down every time they discuss it, thinking: First of all, if we don't agree we must go to arbitration; and secondly, if we go to arbitration and one side loses there must be a summons before the court." I leave absolutely no doubt that, if the body set up by the industry itself came to the conclusion that an injustice had been done and ought to be compensated for, and acted in the moderate way which such a body could be expected to do, whoever it was who was adjudged to pay the compensation would do so without any recourse to the courts. It must be pointed out to the noble and learned Lord the Lord Chancellor that they do not have an opportunity to do so if Amendment No. 15A stood alone, because that makes no provision for an award of compensation, enforceable or unenforceable.

We are therefore faced with a perfectly straightforward issue. We are all agreed that there should be a charter. We are all agreed that it should protect the freedom of the Press. We are all agreed that there should be a body to investigate complaints of breaches of the charter. The simple issue is whether or not, if a wrong is done to one side or the other resulting in material damages, there should be a right of compensation. For that matter, I maintain that there should. I say so without passion. I say so without the desire to poison anybody's relations with anybody else. But I say so with

complete conviction, and I shall ask the House to divide upon my Amendment.


The original Question was, That Amendment 15A to the Commons Amendment No. 10 be agreed to?—since when Amendments Nos. 15B and 15C have been moved by the Lord Hailsham of Saint Marylebone. The Question I therefore now have to put is, That Amendments Nos. 15B and 15C be agreed to?

6.4 p.m.

On Question, Whether the said Amendments (Nos. 15B and 15C) shall be agreed to?

Their Lordships divided: Contents, 162; Not-Contents, 73.

Aberdare, L. Effingham, E. Lonsdale, E.
Adeane, L. Ellenborough, L. Lothian, M.
Airedale, L. Elles, B. Lucas of Chilworth, L.
Allerton, L. Elliot of Harwood, B. Lyell, L.
Amherst, E. Elton, L. Macpherson of Drumochter, L
Amherst of Hackney, L. Emmet of Amberley, B. Malmesbury, E.
Amory, V. Exeter, M. Mancroft, L.
Amulree, L. Falkland, V. Mansfield, E.
Arran, E. Ferrers, E. Merrivale, L.
Atholl, D. Feversham, L. Mersey, V.
Balerno, L. Fraser of Kilmorack, L. Meston, L.
Balfour, E. Gage, V. Monck, V.
Balfour of Inchrye, L. Gainford, L. Monk Bretton, L.
Banks, L. Garner, L. Mowbray and Stourton, L [Teller.]
Barrington, V. George-Brown, L.
Beaumont of Whitley, L. Gibson, L. Netherthorpe, L.
Belstead, L. Goodman, L. Newall, L.
Berkeley, B. Gore-Booth, L. Northchurch, B.
Boothby, L. Gowrie, E. Nugent of Guildford, L.
Bourne, L. Grantchester, L. Ogmore, L.
Brock, L. Greenway, L. O'Hagan, L.
Brougham and Vaux, L. Grenfell, L. Onslow, E.
Byers, L. Gridley, L. Orr-Ewing, L.
Caldecote, V. Grimston of Westbury, L. Pender, L.
Camrose, V. Hailsham of Saint Marylebone, L. Penrhyn, L.
Carrington, L. Perth, E.
Cathcart, E. Hankey, L. Piercy, L.
Chelwood, L. Harmar-Nicholls, L. Porritt, L.
Clwyd, L. Harvey of Tasburgh, L. Rankeillour, L.
Cole, L. Hawke, L. Rathcreedan, L.
Colville of Culross, V. Henley, L. Reading, M.
Cork and Orrery, E. Hood, V. Redesdale, L.
Cottesloe, L. Hornsby-Smith, B. Reigate, L.
Craigavon, V. Howe, E. Robbins, L.
Crawshaw, L. Hunt of Fawley, L. Roberthall, L.
Croft, L. Hylton, L. Robertson of Oakridge, L.
Daventry, V. Hylton-Foster, B. Robson of Kiddington,, B.
Davidson, V. Iliffe, L. Rochester, Bp.
de Clifford, L. Inchyra, L. Rothermere, V.
de Freyne, L. Inglewood, L. Ruthven of Freeland, Ly.
Denham, L. [Teller.] Kemsley, V. St. Aldwyn, E.
Drogheda, E. Kinnaird, L. St. Davids, V.
Drumalbyn, L. Kinnoull, E. St. Helens, L.
Duncan-Sandys, L. Lauderdale, E. Saint Oswald, L.
Dundee, E. Lindsey and Abingdon, E. Sandford, L.
Ebbisham, L. Lloyd of Kilgerran, L. Sandys, L.
Eccles, V. Long, V. Savile, L.
Sempill, Ly. Tanlaw, L. Ward of North Tyneside, B.
Sharples, B. Tenby, V. Ward of Witley, V.
Snow, L. Teviot, L. Watkinson, V.
Somers, L. Thomas, L. Wigoder, L.
Stamp, L. Thorneycroft, L. Windlesham, L.
Strathspey, L. Tweedsmuir, L. Wolverton, L.
Sudeley, L. Vickers, B. Young, B.
Swaythling, L. Vivian, L.
Ardwick, L. Fulton, L. Melchett, L.
Bacon, B. Gaitskell, B. Milner of Leeds, L.
Bernstein, L. Gardiner, L. Morris of Grasmere, L.
Birk, B. Goronwy-Roberts, L. Noel-Buxton, L.
Blyton, L. Greene of Harrow Weald, L. Paget of Northampton, L.
Brockway, L. Greenwood of Rossendale, L. Pannell, L.
Brown, L. Hale, L. Peddie, L.
Bruce of Donington, L. Hall, V. Phillips, B.
Burton of Coventry, B. Hanworth, V. Platt, L.
Champion, L. Harris of Greenwich, L. Popplewell, L.
Collison, L. Houghton of Sowerby, L. Sainsbury, L.
Cooper of Stockton Heath, L. Jacques, L. Shepherd, L. (L. Privy Seal)
Crook, L. Kissin, L. Shinwell, L.
Crowther-Hunt, L. Leatherland, L. Slater, L.
Cudlipp, L. Lee of Newton, L. Soper, L.
Darling of Hillsborough, L. Llewelyn-Davies, L. Stedman, B.
Delacourt-Smith of Alteryn, B. Llewelyn-Davies of Hastoe, B. [Teller.] Stewart of Alvechurch, B.
Donaldson of Kingsbridge, L. Stow Hill, L.
Douglas of Barloch, L. Lloyd of Hampstead, L. Strabolgi, L. [Teller.]
Douglass of Cleveland, L. Lovell-Davis, L. Taylor of Gryfe, L.
Elwyn-Jones, L. (L. Chancellor.) Lyons of Brighton, L. Taylor of Mansfield, L.
McLeavy, L. Wallace of Coslany, L.
Evans of Hungershall, L. Maelor, L. Wigg, L.
Fisher of Camden, L. Mais, L. Winterbottom, L.
Fisher of Rednal, B. Maybray-King, L. Wynne-Jones, L.

On Question, Commons Amendment No. 15, as amended, to the Lords Amendment No. 10, agreed to.

Resolved in the affirmative, and Amendments agreed to accordingly.

6.15 p.m.