LORDS AMENDMENT (Hansard, 20 October 1975)

§ Lord SHEPHERD
My Lords, I beg to move that this House doth not insist on their Amendment No. 6 to which the Commons have disagreed for the Reason numbered 7: because the clause, as amended, would lead to too much uncertainty in union membership agreements. I have looked into this matter in a personal sense because in the First World War my father was a conscientious objector. If one's grounds for conscientious objection at that time were based upon a religious belief one was not covered by Statute. Therefore, I listened with great interest to the speech that the noble and learned Lord, Lord Hailsham, made when we recently discussed a similar matter on the Employment Protection Bill. The Government do not disapprove of conscience.

A Noble Lord
Hear, hear!

§ Lord SHEPHERD
My Lords, clearly the noble Lord is in one of his frivolous moods. We would not dispute that in some circumstances it may be distinguishable from religious belief, nor do we argue that it is not in some circumstances a valid base for objecting to a particular course of action or requirement. Our argument is based upon the circumstances which are dealt with in this legislation. In the context of industrial relations legislation we consider that it is inappropriate to give statutory rights to some individuals based upon conscience and have limited it to religious beliefs.
We have two reasons for doing this. First, is it right that individual conscience should automatically and as of right be a valid reason for refusing union membership? We doubt it, for we believe that we must weigh in the balance against one person's conscience the freedom of belief of the other persons with whom he works. The employment situation where there is a closed shop is not, in practical or industrial relations terms, a situation in which conscience may be freely exercised without treading on somebody else's toes. We do not think that it is proper by Statute to give one person an individual right which restricts the individual rights of others whose rights are not statutorily defined.
Secondly, we do not think that in these circumstances the meaning of "conscience" is sufficiently well defined with a universal, clearly understood meaning for 1161 statutory provisions with considerable consequences to be based upon the phrase. Conscience is essentially a matter of personal conviction. Industrial tribunals may be able to apply some test to the sincerity of such personal conviction, to distinguish it from religious belief and to decide whether it is reasonable in the circumstances that it should outweigh the sincere conviction of others; but we doubt it, and previous experience in this field of industrial relations does not lessen our doubts. Nor will different tribunals necessarily reach the same conclusion on the matter. Nor, more importantly, will their decision necessarily accord with the interpretation of the meaning of "conscience" by the people who are directly affected.
This is why we say that the Lords Amendment introduces uncertainty into closed shop agreements. Before tribunals tackle the question of what constitutes reasonable grounds of conscience, employers and unions who make closed shop agreements have to decide whether an individual has such valid conscientious objections to union membership as to warrant his exception from the terms of the agreement or whether the employer may fairly dismiss him without payment of compensation. Individual employees have to decide whether to risk dismissal without compensation by relying on the conscience clause. By the time a tribunal considers the issue it may be too late from the point of view of those affected. In particular, it may be too late in industrial relations terms to remedy the damage.
The Opposition in another place argued that all that was at stake was whether or not compensation was payable to the conscientious objector and that therefore the Lords Amendment does not interfere with the closed shop agreement. It is certainly true that the limited issue of compensation for dismissal is the only one where the law touches upon closed shop agreements, which is why the proposed Amendment offers no real protection to the individual. However, I suggest that it is facile to argue that the question of employer liability for compensation does not affect the operation of closed shop agreements. No employer will operate an agreement in a way which will make him liable to pay compensation. Union members in a closed shop 1162 will not willingly tolerate the continued non-membership of a person who relies on conscience to avoid dismissal. If they do not accept the validity of his objections, the result will be industrial conflict. The individual may or may not get compensation for his dismissal, but—this is, in my view, the most important point—the chances of his staying in his job will surely be reduced.
It is our view that this Amendment can produce only ill will on the part of those whose sincere beliefs are not upheld by statutory rights and are placed on a lower plane than the beliefs of those holding opposite views. It can produce only uncertainty among those directly affected as to what their rights and obligations are. From these two factors—ill will and uncertainty—can follow grave industrial relations consequences from which the individual conscientious objector as well as others can derive no benefit. These circumstances are not comparable with those of the individual who objects to compulsory military service on conscientious grounds whose actions do not directly affect the rights and duties or challenge the views of those with whom he closely associates.
The best practical protection for the conscientious objector will be that which he negotiates with the management and unions by convincing them of the strength of his views. Unions and employers do not have closed minds against conscientious objectors, and they probably have greater acquaintance with the sincerity of their views than a tribunal ever could have. We have ensured that exceptions and special arrangements can be made for conscientious objectors. Such arrangements alone, in my view, will protect the individual from losing his job. For these reasons I ask the House to consider the practical implications of this Amendment and to accept the view of of the majority in another place on this matter.

§ Lord HAILSHAM of SAINT MARYLEBONE
My Lords, as we have argued out this matter at length before, I do not wish to spend a great deal of time on rearguing it. However, it would 1163 be wrong if I were not to state the deep distaste with which I heard the view of the Government as expressed a moment ago.
What is this about? It is not, as the Commons have said, about certainty or uncertainty in membership agreements. A man does not join a union in the context of a closed shop. The other union members say, "We will not work with him" and quite probably the employer dismisses him. If the employer has agreed to a closed shop agreement the employer is contractually bound to dismiss him. If he has not contractually agreed he dismisses him because the threat of industrial action compels him to do so.
For this purpose it does not matter very much which of those two conditions applies. The man loses his job and he cannot get another because he is not a member of the union. Is he entitled to compensation from the employer who has dismissed him? That is the only question before the House. It is nothing to do with industrial relations. It is nothing to do with the question whether or not he stays in employment. It is a question of what happens after he has been dismissed. Is he to have compensation? We are assuming for this purpose that he has what the noble Lord's father would have called "conscientious objection". What is the answer to the question if the Commons have their way? The answer is, "Yes, he can have compensation provided he is a Jehovah's Witness; provided he is a Plymouth Brother, but not if he is an aetheist". That is the law imposed by the Labour Government and insisted upon by the Commons.
We are moving towards elective dictatorship. Here again we shall not divide the House, but shall only record our conviction that this is a disgraceful situation brought about by a Labour Government under the dictates from an outside body.

§ Lord PANNELL
My Lords, once again I must rise because I have never heard this argument used when people have been discriminated against because they are members of trade unions. I particularly remember, after the General Strike, going on a weary trek from one workshop to another, and the mere 1164 fact that you were a member of a trade union barred you for all time. No one spoke about conscientious objection then. But I remind the noble and learned Lord, Lord Hailsham of Saint Marylebone, that a wrong to any group of society can only be judged in the context of the group that considers itself wronged. Presumably, that is why the Law Society have some control over their disciplines. That is why the British Medical Association has some control over the doctors. That is why both Houses of Parliament have Committees of Privilege, to judge whether there is any offence against them. What is good for the noble professions is also good for filthy trade. I can only say that in 50 years of trade unionism, when I have challenged a man to produce his trade union card, he has never used grounds of conscience as to why he would not pay.

§ Lord WIGODER
My Lords, we supported this Amendment, and continue to believe it is right. We continue to believe that the test of conscience is a wider and more fair one than the narrower test of religious belief. We take some comfort from the fact that when we come to debate Clay Cross later in the week, the word "conscience" will no doubt be used sparingly by noble Lords on the Government Benches.
My Lords, this battle has been fought on many occasions, and there seems to us to be no point in fighting it again this afternoon. In those circumstances, my noble friends and I will not seek to pursue this matter further on this occasion.