§ 3.2 p.m.
§ Lord JACQUES
My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
§ Moved, That the House do now resolve itself into Committee.—(Lord Jacques.)
§ On Question, Motion agreed to.
§ House in Committee accordingly.
§ [The EARL OF LISTOWEL in the Chair.]
§ Clause 1 [Advisory, Conciliation and Arbitration Service]:
The Earl of GOWRIE moved Amendment No. 1A:
Page 2, line 9, leave out from ("relations") to the end of line 12 and insert ("providing facilities for advice, conciliation and arbitration and, where appropriate, encouraging the extension of collective bargaining and the development and reform of collective bargaining machinery.")
§ The noble Earl said: The Committee stage of a Bill, even one that takes place during a recall of this House from Recess, it seems to me is usually a time for reasoned reflection, for making improvements, for considering technicalities, and so on. But I think that our Committee today is in a very different situation. It will be impossible for us to ignore, even as we scrutinise the details of a long and detailed Bill, what might be called the burning topicality of the issues underlying this legislation—issues subject to the industrial, political and employment tensions that can so easily build up, burst out, and tear apart this kind of legislation. For example, how can we initiate a debate on the early clauses of the Bill, our first debate on the Advisory, Conciliation and Arbitration Service, without the eleventh hour settling, or at least postponement, of the steel strike being in our 15 minds? How can we not be aware that if we get something wrong in the Bill, even if it is wrong only in tone or emphasis, we in Parliament may be doing our bit to worsen industrial relations, to dampen industrial activity, and so put off for longer than need be that revival of confidence in the work place which must initiate and then accompany national economic recovery?
§ Our Amendment to Clause 1 is primarily a matter of tone—of trying, if I may so put it, to improve the "manners" of this Bill. I make no apology for this, because there is almost universal agreement—certainly among all the commentators whom I have read—that the Bill openly discriminates in favour of trade unions and the shop floor and against the manager's office and the boardroom. Far from trying to break down industrial divisiveness and the idea of "us versus them" which foreign commentators have noted, the Bill glories and celebrates division.
Quite apart from the detailed provisions, many of which we shall seek also to modify and moderate, in many crucial places the Bill is infected with the kind of "four legs good, two legs bad" spirit. Of course this is mirrored in the language of the Bill. One purpose of our Amendment is to civilise and soften the tone of subsection (2) without in any way blurring its meaning. We support the concept of the ACAS charged in this subsection with:
… the general duty of promoting the improvement of industrial relations, …
Therefore, we approve and support the meaning of the Government. What we do not like—and the Amendment does not alter the meaning of the subsection a whit—is the psychological assumption in the second part of the subsection that "extension of collective bargaining" is the only important method of improving industrial relations. We do not contest its importance, and so in our Amendment we include the phrase "the extension of collective bargaining". But by linking this concept to the specific tasks of ACAS we present it in a more balanced way, and we lessen the suspicion that the bald inclusion of the phrase "extension of collective bargaining" is purely a trade union directive. Surely both sides of industry need all the
diplomacy, tact, and good manners they can get. I have said that as well as moderating the language of the paragraph our Amendment seeks formally to define the purpose of ACAS.
§ If we now turn to the wording of Clause 1(2), we find that, despite the full title of the ACAS which precedes the clause, nowhere is a specific duty laid down for the Service to provide advice, conciliation and arbitration. It may be claimed that these are dealt with under Clauses 2, 3 and 4, but if we look closely at the terms of those clauses, we find they are all discretionary. In any case, they are surely meant to be explanatory of what is laid down in Clause 1.
§ Lord ROYLE
Would the noble Earl permit me to interrupt? I apologise for doing so, because while what I have to say has no connection at all with his argument, many of the Committee are in the same fog as I am. I cannot find Amendment No. 1A anywhere. I understand it is not available. We have not got it. Perhaps the noble Earl in the Chair can help. I should have thought that Amendment No. lA would have followed Amendment No. 1.
The Earl of GOWRIE
I do not wish to usurp the function of the noble Earl the Chairman of Committees. Clearly, Amendment No. lA would follow Amendment No. 1,but I do not think that noble Lords opposite would wish me to put down an Amendment under the heading of "zero", whatever they might think of my opinions. Therefore, for the first time off, we have to do it this way. There are two Marshalled Lists of Amendments. I think they are widely available. Perhaps someone could provide one for the noble Lord, Lord Royle, so that he can see our Amendment in detail.
As I was saying, I support the concept of ACAS and wish to make it clear that nothing said here in criticism of the relevant provisions of the Bill is meant as criticism of the Service itself, or the role we hope it will play. The ACAS has an important central role to play in improving industrial relations, but if it is to do so, it must have the full support of both employers and trade unions. It will need to be independent and impartial if people are to have confidence in it. People will not have the necessary confidence unless the Service is seen to be 17 independent and impartial in the way in which it functions.
The Conciliation Service has a long and honourable record. It used to operate under the aegis of the Department of Employment, where I, for one, first worked. Unfortunately, some people felt that its independence was jeopardised through becoming involved in statutory incomes policies. Its transfer to ACAS is understandable and acceptable in order that it may be seen to be making a new and independent start. Therefore, it is all the more important, it seems to us, to guard against the Service being laid open to charges of bias or any misinterpretations of this kind. As we know from last week, it has made a good beginning. The reports of its work to date are impressive. All the same, one must realise that it has not yet started to tackle some of its more controversial work—controversial, as we shall see under the terms of the Bill: for instance, dealing with recognition claims and formulating Codes of Practice.
In the meantime, then, in the Amendment we wish to lay a specific duty on the ACAS to provide facilities for advice, conciliation and arbitration. It is hoped that it will be agreed that not only is this structurally necessary for the purposes of the Bill, but also, with the other point I mentioned, the point of language, that it will contribute a better balance to the statement of its duties. I beg to move.
§ Lord WIGG
I have down an Amendment later on the Marshalled List, but I may be able to shorten what I have to say then by saying something now. In general I have sympathy with the views expressed by the noble Earl, Lord Gowrie. In some respects I would go a little further. I should like to delete the word "advisory". Looking well into the future, it seems to me that this Bill is one of the most important that has come before this House, indeed before Parliament as a whole, since the end of the last war, because on the view we take of it and what we do about it will depend, in my judgment—I hope I do not exaggerate—the survival of this country as an industrial power and as a democracy. What is implicit in the operation, in the ultimate way in which the ACAS will work, is nothing less than 18 this: that no man or no organisation must be judge in their own cause.
Other countries which are more wedded to the capitalist system and perhaps more reluctant than we are to accept a mixed economy—the United States—are light years ahead of us in the handling of industrial relations. They have developed a breed of men who are professional conciliators, and the word "professional" in capital letters and underlined. They do not only, as it were, explore the light at the end of the tunnel; they bore a tunnel where no tunnel exists, and they perceive the possibilities of conflict long before they arise. It seems to me that it is in this field that ACAS has to operate. Indeed, my Amendment would ultimately give the Secretary of State the power to impose arbitration without coming back to Parliament.
This takes me back to my original principle, that any dispute, however complex it may be, has ultimately to be settled by somebody, so why not settle at the beginning. But there needs to be stages in this, and it needs to be undertaken by a body which has built up for itself the reputation of impartiality. First, they must ascertain the facts; they must see what the dispute is about. They must then seek to concilitate by every means in their professional power. Then, ultimately, it must go to arbitration, as it does in the United States; it goes to arbitration as a result of a decision by somebody other than the parties to the dispute. This seems to me what it is all about. Therefore, I do not want even the word "advisory". I want a Conciliation and Arbitration Service with ultimate powers which are accepted by all sides of industry, powers which the trade unions would accept and which would be effective upon the factory floor, and which would be accepted by the employers.
I have very much in mind—and I am not going to weary the Committee today, unless I am forced, by giving a detailed account—a recent industrial dispute which still survives, in which, in my judgment, the blame is wholly on the employers, and for their own reasons they have refused arbitration. I have no doubt that noble Lords on the other side, or even on this side, could balance my arguments by a case on the opposite side. But we are a long long way from even exploring the initial stage of inquiry, of establishing the facts; we have not even got 19 there, so we are miles away from conciliation. When it comes to arbitration this is a dream. Yet the time is very short indeed. Every industrial dispute that breaks out, that inconveniences the public, that damages the economy of our country, in the ultimate has to be settled round a table, like every war has to be settled; when you have killed millions, you have still got to talk and settle. So why do not civilised men start?
I would say to the noble Earl, Lord Gowrie, and the noble Earl, Lord Mansfield, and those associated with them, the impelling force of their idea is right, and I would take my vote into the Lobby with them in saying that. But I think it needs to be looked at again; I think it needs to go further and drop out the word "advisory", and I think the words need to be more carefully drafted. I would suggest to him that he goes to representatives of the TUC, or Members on this side of the House who have experience in trade union negotiations far greater than I have, and see whether the words can be taken a little further, to mean a little more and to be put into practice not in the arbitrary way as at this moment; because it cannot be done. To talk about arbitration at the moment is almost a dirty word. The reasons for this are largely historical. It used to be said of Mr. Foster Dulles that on his desk he had a text. I never quote the Bible very correctly, but it is something like this:Be not mocked, God is not mocked, be not dismayed; As a man sows so shall he reap".We are reaping in our industrial relations today the fruits of what happened after the First World War, the General Strike, the unemployment of the 'thirties, the suspicion that it may happen again. All these are bearing fruit which is bitter, and yet it is as plain as a pikestaff that for us as individuals and as a nation the time has run out. We have got to find a more civilised, a more humane and sensible way of handling our affairs.
It seems to me to be quite simple. I repeat myself, and I hope noble Lords will forgive me. First, one must ascertain the facts. If you are going to have a hell of a row, at least know what you are fighting about; and then bring in the professional conciliator, the man trained in this art. Thirdly, if there can 20 not not be any agreement, then, as in the United States, the cooling-off period and compulsory arbitration. We have got a long way to go before ultimately we reach that goal, but to my mind that is the goal. If that is in the mind of the noble Earl, Lord Gowrie, and if he decides to divide, he takes me with him.
§ Lord BRIGINSHAW
I thought the noble Lord, Lord Wigg, touched on one or two important points that underline the necessity of the Bill being unamended. I would say, with the noble Lord, that we are taking advantage of all the experience that we have had since the Second World War. But, at this moment, if I had the Amendment before me and studied it, I think I should still take the view I am seeking to express, that the Amendment ought to be withdrawn, the Bill ought to be left as it is; its overall intent is to take advantages of the experiences of the First World War period, subsequent developments and the immediate past two or three years' experience. I declare an interest, so far as the ACAS is concerned, in being a member of the Board. I was surprised to hear the noble Earl on the other side indicate that perhaps the first success of the Service was last week, so far as the steel dispute was concerned.
The Earl of GOWRIE
If I may briefly correct the noble Lord, that is not what I wished to say. I said that the events of the last week brought the successful work of the Service sharply into relief.
§ Lord BRIGINSHAW
As if this has been the only thing that has happened in the past year. Over 1,000 successful handlings by the Service have taken place. My experience and the experience of the Service is that the more you leave it in a position of flexibility, the more you cease to burden it in any way, the more successful it will be. Therefore, taking this into consideration, listening to what the noble Earl has said rather than being at a disadvantage so far as the Amendment is concerned, not having it before me. I strongly hope that this Committee will press the view that it would be better if the Amendment in terms was not accepted.
§ 3.20 p.m.
§ Lord SHEPHERD
May I be allowed to intervene, because this is a matter on 21 which there should not be a great deal of difference between us. First of all, the three Parties have given their full support to making the statutory provisions for ACAS. Like my noble friend Lord Briginshaw, my impression of the speech made by the noble Earl, Lord Gowrie, was that so far as he was concerned this was a new organisation which had had a notable introduction to the problems of industrial relations in the way in which they had handled the steel dispute. This is of course an organisation of quite a number of years standing, and where there may have been an element of doubt in the minds of the members of ACAS this was put right by a letter of, I think, 8th August, from the Secretary of State to the Chairman indicating the broad lines under which it should function.
We are legislating here for a long period because problems of industrial relations are bound to be with us; because as we change and modify our industrial structure new problems are thrown up which have to be dealt with. Therefore, when laying down a general duty I would suggest that one does not wish to be too specific. It is quite right that subsection (2) says:The Service shall be charged with the general duty of promoting the improvement of industrial relations"—and it could be argued that it could be left like that, but it goes on—and in particular of encouraging the extension of collective bargaining and the development and, where necessary, reform of collective bargaining machinery.The words are being put in there because it was the view of the noble and learned Lord, Lord Donovan, and his Royal Commission; it was the view of the Conservative Administration in 1971, and it is the view of any who have been involved in any form of industry or commerce that the only way in which human problems within industry and commerce can be dealt with satisfactorily is through negotiation. Collective bargaining is negotiation: it is a negotiation or collective bargaining between the two sides. I do not believe that within a democracy, the sort of society we have or which we wish to see, there is any other satisfactory way in which we can conduct our affairs than 22 through negotiation. That is the other word for collective bargaining.
All the experience of CIR and ACAS since it was set up leads us to believe that there is much yet to be done in the field of the improvement of industrial relations and collective bargaining and negotiations. I had personal experience of this for a short period between being in Office, and one thing that became perfectly clear to me in my experience in this field was that the method by which you negotiate is of paramount importance, and that both sides understand the procedures to be adopted. The general concept of the Government in subsection (2) is the general duty of the improvement of relations, and drawing particular attention to the extension and the improvement and, if necessary, reform of the negotiating positions and procedures.
In his Amendment the noble Earl relegates it to a more minor situation: it is "where appropriate". Appropriate means that there is a degree of discretion. My view is that this should be the desire and purpose of all, and that no company has in itself a cast-iron, first-class system of negotiation. In my view the setting up of the facilities for advice, conciliation and arbitration, important in themselves, are, in the end, solely a safety net. They are to be brought into being when the negotiating procedures of an industry or a company have been completed.
§ Baroness SEEAR
I apologise for interrupting the Minister, but can he explain why the Service has this title, unless it is for purely historical reasons? While I have sympathy with what the noble Lord is saying, it is peculiar to call it the Conciliation and Arbitration Service and then to object to having a reference to "conciliation and arbitration" as a major part of the definition of what it does. Are the words, "industrial relations" not included in the title because the CIR became unpopular?
§ Lord BRIGINSHAW
I think it is because the Service knows what it has to do, and the experience of those involved in the Service is that they are aware of something to which the noble Lord, Lord Wigg, referred; that is, the application of the art of worker involvement. I would add that it is both an art and a 23 science. Therefore, they do not need to be directed in this regard.
§ Lord SHEPHERD
As to the arguments I am making in terms of the organisation, the organisation was set up before this legislation had been prepared. But there is no doubt at all what was the intention behind the Service. The difference between us here is the question of method and purpose. The purpose of this organisation is the improvement of industrial relations. The method lies through the advice, the procedures under Clause 4, and if the negotiating procedures of companies have failed, then the conciliation and arbitration requirements under Clauses 2 and 3 could be brought into force, but as we shall deal with later even the arbitration clause does not become effective unless there has been failure in Clause 2 of the conciliation. In other words, one seeks to use the methods and the procedures within an industry, within a company, before using the broader net of conciliation and arbitration.
I do not think that there is a great deal of difference between us, except perhaps, as the noble Earl has said, a question of tone. I hope that the Committee will believe that this Service should have a general duty of improving industrial relations, and that it should recognise that the essential part of the improvement of industrial relations—and I cannot believe that there can be anything between us on this—is the improvement of collective bargaining, or system of negotiation or the procedures within industry. Clauses 2 and 3 should become necessary only when there is a failure in the general procedure within an industry or a company. There is very little difference between us here. I hope that the Committee will take the view that the broad concept in subsection (2) should be adhered to.
§ Lord POPPLEWELL
May I support my noble friend in his appeal that it is better to leave the Bill as at present drafted rather than accept the Amendment, because the weakness in the Amendment is the words, "where appropriate". Who will decide whether or not it is appropriate? One can visualise a great deal of argument about whether it is right that the machinery should 24 operate for a certain industry. I would ask the noble Earl to give further thought to this matter and to realise the weakness he is suggesting and the difficulties that will ensue in consequence. Is it not better to leave the broad outline of the Bill as it is and encourage the extension of collective bargaining? There are sufficient safeguards to meet the point he raised about introducing the words "where appropriate". We are not dealing with a lawyers' paradise; we are dealing with practical affairs of industrial management and good relationships. In my opinion, the words "where appropriate" will increase the difficulties in achieving the objectives behind the Bill which, on balance, are accepted by both sides of industry.
§ Lord GEORGE-BROWN
Every speaker so far has misused or confused terms. Let me go back to the beginning. A trade union—or a number of trade unions—deals with a particular employer. That is what my noble friend on the Front Bench called negotiation and collective bargaining. But that has nothing to do with what happens if they cannot reach agreement. He was talking about collective bargaining, negotiating, as though that was the ultimate in industrial relations. But it is not. With all the good will in the world—and we do not always have all the good will in the world when discussions are taking place—there comes a point where, for one reason or another, we cannot break through and therefore that needs to be supported or supplemented by something which seeks to bring the two parties together to find out why and how to get around the difficulty.
I agree with so much of what the noble Lord, Lord Briginshaw, said that ACAS as we call it with our passion for initials—is the supporting body to which one can turn without any loss of face. The important thing is that there must not be loss of face. It can come in because somebody knows someone on the employers' side, and somebody else knows someone on the trade union side. Everybody knows why these things happen. I am tremendously in favour of leaving the Advisory Conciliation and Arbitration Service as an almost ill-defined, or not very well defined, body which can find its way through. But, as my noble friend on the Front Bench 25 seemed to put it, that is not part of the negotiation and collective bargaining, except in the rather vague sense that it helps the thing to work. Anything which for malises that, which seems to make it more a part of the machinery will destroy it. It has to learn its own way, and the present personnel are finding out how to work it and how to apply it. It is going very well and has been going well for quite a while, and it has had both minor and major successes.
My noble friend Lord Wigg—a great old friend of mine, with whom I have fought many a battle—will only complicate matters again if he tries to introduce the concept of compulsory arbitration. There is nothing that gets the hackles up more than being told that, in the end, this involves somebody telling you what you have to agree to. We here, almost as academics in this field, can make a case on paper for that being the end of the road. But if you introduce it at this stage in the proceedings you will ruin the whole thing. I ask my noble friend Lord Wigg not to pursue that one, although I see the academic case for it.
What we now have to do is to try to get the trade unions and management—and I have now served my time on that side of the field as well as a long time on the other—to go along more often. But if we are to persuade them to accept the fact that they may feel the need to clash—rather like the two Front Benches here—then they have to know that behind them there is something like the ACAS which looks wholly independent and weaponless, but which everybody knows will be there. May I say as a trade union official, that it is sometimes nice to be able to go to your members and say, "I did not give way. Those fellows came in and persuaded me that I got a better deal this way." I imagine management do the same. I suggest that we do not talk about compulsory arbitration—that will only complicate matters. Let us not mix up collective bargaining with a voluntary and acceptable Conciliation and Arbitration Service. To the noble Earl I would say: Let the thing go. It is working its way through. We are coming out of a very gloomy and rather frightening period. We are getting a little better now. Let it work as it is.
§ Lord HALE
The noble Lord the Leader of the House said almost precisely what I was going to say, and more clearly than I could have expressed it. However, may I express my opinion in two sentences? The effect of this Amendment, judicially interpreted, might be to make no difference, but I do not think that would be so. I think it is much more liable to be interpreted as imposing an obligation. If it imposes an obligation, it not only limits the power of the Conciliation and Arbitration Service which has now been legislatively enacted, but it lays it open to constant litigation. It lays it open to being challenged because certain obligations were imposed by the Amendment and in this particular connection the obligations have not been obeyed. On the other hand, under the drafting of the clause the Service is absolutely free to introduce what arbitrary measures it likes—to recommend them in some cases and not in others, to adapt them for some purposes and not for others—and that is precisely what such a Service should have.
§ 3.40 p.m.
§ Lord LEE of NEWTON
I am all for the improvement of the conciliation and arbitration services and I am all for improving the machinery of collective bargaining, but I am inclined to say, "A plague on both your houses for the clause and the Amendment", because I do not understand what we mean when we talk about "the extension of collective bargaining". Are we thinking in terms of the millions of employees in this country who are not covered by any kind of collective bargaining, those in agriculture and industries covered by different types of machinery? It seems remarkable that both sides of this Committee can accept the use of an expression about the extension of collective bargaining at a time when we have agreed almost to suspend collective bargaining. Indeed, from the Government Front Bench we heard about the virtues of negotiation; but I do not think there is a great deal of scope for negotiation when a maximum is fixed beyond which there shall be no negotiation. I am not criticising the £6 limit; indeed, I am all for it. Nevertheless, we should be careful what we say in legislation. Frankly, I do not want to see the extension of collective 27 bargaining; I want to see its diminution because I want to see it succeeded by a more scientific and sensible method of determining our incomes.
The last time I had the honour to address your Lordships on this subject I described collective bargaining as being like haggling in a Middle Eastern bazaar, and I do not withdraw from that position. What do we mean when we use the phrase "the extension of collective bargaining?" Are we thinking in terms of asking all those services and industries which do not have collective bargaining now to accept it? If so, I assure noble Lords that we are in for a lot of trouble, for whatever we think about arbitration and conciliation it is the very opposite of collective bargaining, because when the parties go to arbitration they have in fact failed in their collective bargaining.
§ Lord SHINWELL
Surely my noble friend is mistaken. If both sides are in dispute about something and they refer the matter to the Arbitration and Conciliation Board, then surely that is collective bargaining. It is not the Board that is indulging in collective bargaining but the contending parties, and that is what we mean by collective bargaining.
§ Lord LEE of NEWTON
Exactly, the contending parties have failed in their attempt at collective bargaining and have therefore gone to arbitration. One reads that Galbraith and others are now coming round to believing that by fixing a £6 limit we are not merely putting in a stop-gap because of inflation but are now reaching a higher stage of civilisation in the way we conduct ourselves in determining the incomes of our people. It seems to me that we are now beginning to reach that stage. We are realising that collective bargaining has failed and has brought us to the awful extremes in which we now find ourselves; instead of continuing to produce low-paid workers because they have no power to indulge in collective bargaining and are therefore low paid, we are trying to achieve a more sensible way of deciding matters. What I am saying is that while we are doing that it is not very appropriate to talk in this Bill about "the extension of collective bargaining".
§ Lord DOUGLASS of CLEVELAND
I listened with great interest to the 28 remarks of my noble friend Lord Wigg and I must tell him that he is wrong about America. There they have legislation which carries them a long way along the path of finality with regard to collective bargaining, but there is nothing to stop the Americans striking if they wish to strike. What we are facing today in the industrial world is the power of the inertia of the trade unions—they do not have to fight; they just have to sit down—and what we must do is overcome that particular inertia. That will be done only by persuasion. That we in this country have proved.
Those who were at the TUC Conference this year must have noted a remarkable change in attitude towards the acceptance of some method of decision in wage bargaining when an impossible situation is reached, and the £6 limit has now virtually been accepted by all, even by those who were objecting violently to it and who were saying before the conference that whatever happened at that conference they would not accept it. They emerged from the conference saying, "It is a majority decision and it will have to be abided by." Of course, we must watch what happens when the end of the period is reached. The noble Earl, Lord Gowrie, must be smiling to himself at the thought of not having to argue this case because he has us arguing among ourselves. That is not such a bad thing, although maybe it would be better if we did it in private rather than in this Assembly. Nobody can compel trade unionists to work. My noble friend Lord George-Brown and I were dealing with this some ten years ago. In a case where agreement is impossible between two sides the only conclusion we have had up to now has been strike action. The trade unions in this country are as conscious as the employers of the folly of striking at the present time and of the economic chaos which is resulting in this country as in no other country in Europe as a consequence of the inability to find a conclusion when that impasse is reached.
It is some time since I advised the noble and learned Lord, Lord Hailsham of Saint Marylebone, that we in your Lordships' House often do not speak the same language. On that occasion the noble and learned Lord was talking about law and case law and I pointed out to 29 him that inside the trade union movement we do not call it "law and case law" but "rule and precedent", yet the two things are the same and we think they are different only because they have different names. What frightens me about this Bill is the thought of those words going before the courts, where legal people will argue about what they mean, and at the end of the day probably causing even more confusion for those who have to deal with industrial relations.
The conciliation and arbitration services have, as the noble Lord, Lord Briginshaw, pointed out, settled a thousand or more cases, but up to now nobody has heard about them. Each one of those cases represents a precedent for us—case law for others—and this has been building up into something really credible; but it has also been building up into something big, like the steel problem. The steel problem today is a plain indication of what a small number of men can do, if they want to, to paralyse industry. We are trying to find a way of dealing with this matter. Mr. Mortimer and his colleagues have gone into that particular problem, have examined it and have persuaded people who were determined to get their own way by stopping their industry, to have an inquiry and to examine it on the job. They will examine the steel industry and they have set precedents inside the steel industry that will certainly be reflected in other industries.
I ask the noble Earl, Lord Gowrie, not to press the Amendment, though I do not see much objection to it except that it introduces more words for us to argue about and I want fewer words to argue about. I shall use the same argument about quite a number of the Amendments which are to be moved. Unless they are absolutely essential they should be withdrawn and the Bill left as it is. Let the Conciliation and Arbitration Service go ahead with forming precedents for us and case law for you, so that, in the economic difficulties in which the country now is, we shall find a combination of effort from all three sides of the House—and I am certain that the Cross-Benches will enter into this—and so that all sides of the House and all sides of industry can at least get together in order to improve our economic situation; so that 30 we are not talking about what we are going to share out or about how we shall share it out, but are making something to share out. If we have many more words such as have been suggested or many more Amendments to the Bill, the issue will be so confused that we shall never reach that situation. I appeal to the Committee to be very careful about creating problems for the sake of argument with respect to the present Bill.
§ Lord WIGG
I would go along completely with my noble friend if I were sure of one thing. The Bill, in some form, will go on to the Statute Book. If I thought that, in the light of events, next year, the year after or five years hence the Government would bring forward another measure so that the Statute would be kept up to date in the light of developments as they occur, I should be wholly satisfied. All my Amendments and the comments which I have already made are a reflection not of what exists or is likely to happen during the next year, but of what I want to see happen or what I think will happen five years hence.
I am a 100 per cent. supporter of ACAS. I said so on Second Reading. I do not agree with my noble friend that what happens in the United States is exactly as he said. There, a bargain has been struck and it has been struck in many other advanced industrial countries. They have accepted the principle of collective bargaining in the sense that my noble friend Lord Lee of Newton has mentioned. They have accepted that, but a price has been paid. In return for the acceptance right across the board of the principle of collective bargaining, there has also been accepted something which the Conservative Party very unwisely tried to stuff down the throat of the trade union movement in the heyday of their accidental electoral triumph in 1970. In fact, they broke—as they always do—the first lesson in politics, which is to distinguish very sharply between what one wants and what one can get. The ultimate ambition here is to elevate the differences to the point where they can be decided objectively and accepted by both sides, and it is agreed. That is the ultimate target. That is what I believe they want. That is what I want, because though the principle of the right to strike 31 is one which I have defended during all my working life and I shall continue to defend as long as I live, I have to remember that we live in an age in which the division of labour has been carried to its logical conclusion. In the industry of my noble friend Lord Douglass the end product is the product of many skills—but be it a small group of men who supply a washer worth three pence who decide that they will have their way, the whole industry will come to a standstill and ultimately the whole nation will come to a standstill. This will often happen about things which are imperfectly understood and this would not have happened if there had been a trained conciliator. This is a class which does not exist in this country and it is something I want to see. It does not exist in ACAS at the present moment, but it has started to exist in the United States and in other industrialised countries.
Let us take the recent strike. I entirely agree with what my noble friend Lord Douglass said. Here is an industry—a nation—looking into the abyss. Yet it has Mr. Mortimer and his friends who with great skill have managed to avert this disaster. We should never have got anywhere near that situation. That process ought to have started a year or eighteen months ago. As I said earlier, we need men who not only can see the light at the end of the tunnel but who can bore a tunnel where no tunnel exists. Here is the problem. I hope very much that we shall get agreement. I certainly do not regard it as a weakness that all the speeches which have been made have come from this side of the House because there is no disagreement between the noble Lord and myself nor has there been from any other speaker, even from the noble Lord, Lord GeorgeBrown—which is saying something! We find a great deal to agree on, but we generally find something on which to disagree, but I do not disagree with him today. I think he is quite right. If you like, I have fetched out the bogey man of what must happen ultimately. That is where my thinking takes me, so I have come down here and, for what it is worth, I say to the Committee that, in the ultimate, if we are to survive as a major industrial power and as a democracy, no man and no institution can be judge in 32 his own court. Ultimately, we must find a more civilised way.
Of course, at the end of the day there will be strikes and disputes which cannot be rationalised or solved. But I believe that they will be far fewer than we have at the present time and far less damaging in extent. That is really what the Bill is about. It is the first step along the civilised road and it is one which I should have thought noble Lords in all parts of the Committee would support. If I apprehend here what we ought to do a year or two years hence and say so, it is not to damage that in any way. I should withdraw at once if I thought so. It is not to damage or to hinder those who are taking this first step. More power to their elbow. For what it is worth, Mr. Mortimer and his colleagues and my noble friend Lord Briginshaw have my 100 per cent. support, but I remind noble Lords in all parts of the Committee that this is but the first step. What I am afraid of is that this Bill—the first step—will in five years time find us still bogged down in the word "advisory". What I want to do is to have the cane available even if nobody uses it.
§ Lord SHINWELL
We shall certainly not survive as a nation if we seek to impose compulsory arbitration on both parties in a dispute. That would cause more harm. We have enough trouble as it is. This debate, though it began on a very muted note, has now developed into a discussion as to whether we should accept compulsory arbitration or whether we should rely on encouraging collective bargaining between contending parties and refer disputes to the Conciliation and Arbitration Board. That is the difference between us.
It appears to me that a great deal depends on what the Opposition want. If they really want to encourage collective bargaining, they can use the word "encouragement" or "extension". It is a matter of semantics, and it does not matter a great deal. But, if the intention behind the Amendment is to effect, through the means of legislation—and through this piece of legislation—that both parties in a dispute must, without any question of a strike either official or unofficial, go to the Concilation and Arbitration Board and take what is coming to them that is going to cause more trouble than ever.
33 Of course, it would be an ideal system if everyone—both sides of your Lordships' Committee, both sides in the other place and both sides of industry and the whole country—agreed to collective bargaining and arbitration compulsorily imposed on both sides. It would be very nice. But they would not accept it. No doubt the employers might accept it, although I have doubts about that. Some would accept it but some would refuse to have anything to do with it. Certainly the trade union movement is not in a mood to accept it. We have had some experience of this matter in your Lordship's House when we had to deal with the Conservative Government's Industrial Relations Bill. We see what happened there: all the time that was taken; all the time that was wasted; the arguments, the contention, the disputation and all the rest of it; and in the end it came to nothing.
That would be precisely what would happen if we injected into this measure some aspect of compulsory arbitration which would not be acceptable. I agree with my noble friend Lord Wigg on what would be the position if we could adopt an ideal system of this kind—but of course it does not exist in the United States. They have compulsory arbitration. They have the cooling-off period. We have had the cooling-off period in this country. We have tried that and many expedients and devices, but we have not met with much success. Therefore with what do we content ourselves?—to encourage collective bargaining. Let me say this about collective bargaining. I have ideas about it which would not be acceptable to Members of your Lordships' House, and they would certainly not be acceptable to the trade union movement. But I have ideas about it. I do not ask anybody to accept them. But when we talk about collective bargaining, what do we mean? How do we define it? The operation of contending forces—am I right? One side want more than the other side are prepared to concede. That is what it is.
Nevertheless, the trade union movement, and the Labour movement, and every one of my colleagues on these Benches are hostile to the operation of market forces in industry. That is the position: they are against the operation of market forces. The operation of 34 market forces works to the detriment of those on the lower scale. It is not advantageous to the country itself. Nevertheless, when it comes to disputes between contending parties in industry, we refuse to accept anything but the operation of market forces; in other words, those who are strongest will be advantaged and those who are weak will be disadvantaged. That is the situation.
Therefore it seems to me that we should rely on what is in the Bill, and extend and encourage the operation of collective bargaining, by which we mean that both sides, before they venture upon an industrial dispute by going on strike (which is the worst thing that could happen in the interests of the country or even in the interests of themselves) should have the matter referred to the Advisory, Conciliation and Arbitration Service. We should encourage them in every possible way. But we shall certainly discourage the trade union movement—or at any rate a very large section of it—if we seek to impose on it any obligation of the kind—
§ Lord GEORGE-BROWN
Before my noble friend sits down, may I ask whether he would agree that the only place in the world where compulsory arbitration has been employed has been in a totalitarian society? That is the only place where it can be employed.
§ Lord SHINWELL
I do not want a totalitarian society. Nobody here wants a totalitarian society. We have had our experience of that sort of thing in other parts of the world. We do not want it. But here is an opportunity of conciliation. How are we to bring about conciliation?—not by contending too much one with another, but by saying that here is a means of escape. Here is the conciliation and arbitration machinery. Take advantage of it. We ought to encourage it in every way we can. My noble friend Lord Douglass of Cleveland, or some other Member on this side of the Committee, mentioned that the Advisory, Conciliation and Arbitration Service had dealt successfully with 1,000 cases. That is to our advantage. Let us have all the cases sent to the Advisory, Conciliation and Arbitration Service. I say to the Opposition that they should be very careful about this and should not press it too hard. Some of us are in agreement 35 with this sort of thing. We should like this ideal system. It would be highly satisfactory and encouraging to the country and to its future if everybody accepted compulsory arbitration. There would be no further disputes. There would be collective bargaining, but compulsory arbitration. But we cannot get that. It is unacceptable. Therefore in the circumstances we must make the best of what we have—the Government legislation.
The Earl of GOWRIE
Some of my noble friends sitting behind me wish to come in on this matter. But I must say to the noble Lord that my Amendment is not about compulsion. I accept that the debate ranged fairly widely, and I am glad that it did so. But my Amendment is not about compulsory arbitration.
§ Lord DRUMALBYN
May I say a word about this? I have listened with the greatest of interest to this debate and I find myself agreeing with a very large proportion of what every speaker has said. It is true that some of us—including, I think, the noble Lord, Lord Wigg, and the noble Lord, Lord Lee of Newton—hold the view that in the long run if two parties are unable to agree, and it is essential in the national interest that they should agree, then somebody has to settle the issue. But this is not what the Bill is about. We are here talking about what the duty of ACAS is to be. May I make this suggestion to your Lordships? It seems to me that in a way the definition of the duty in the Bill confuses two things. We are accustomed to having duties and functions set out separately in Bills. Let us look at Clause 1 of this Bill. There we find the duties set out. If we look at Clause 2 we see that it says:In exercising its functions under subsection (1) …That is on the conciliation side.
There are two things that can be done. The duty can be set out in the broadest possible terms, or the functions that are conferred in the Bill can be enumerated. It seems to me that subsection (2) as drafted, and my noble friend's Amendment, go into the functions side of the matter as well as the duty side. Having listened to the debate, I am not at all 36 certain that the best thing to do would be simply to say:The Service shall be charged with the general duty of promoting the improvement of industrial relations …in accordance with the provisions of the Bill, and leave it at that. But if reference is to be made to functions, it seems to me sensible to refer to a very important function—and here I disagree with the noble Lord, Lord Wigg—and that is the advice function, because obviously one of the most important things is that ACAS should have the very full confidence of all who will be using its services, including in that confidence the knowledge that if they go to it for advice they will receive advice, and very well informed advice at that.
That is why I think it would be desirable to refer to the advice function as part of the duty. If duties such as the encouraging and the extension of collective bargaining are to be enumerated, then the advice function, which is a slightly different one, ought to go in. But I should be perfectly content—indeed I should prefer—to leave the duty in the broadest possible terms.
§ Lord LEATHERLAND
There are almost 200 Amendments to this Bill set down on the Marshalled List, but what have we been debating for the past hour or hour and a half? We have been debating the subjects which are specifically put down for consideration in later clauses in the Bill. Let me look at the clause as now printed and at the Amendment moved by the noble Earl. The first sentence of subsection (2) of the clause says:The Service shall be charged with the general duty of promoting the improvement of industrial relations …".The Amendment put down by the noble Earl says precisely the same thing. The subsection then goes on to say:and in particular of encouraging the extension of collective bargaining …".The noble Earl's Amendment also suggests that it is a good thing to encourage:the development and reform of collective bargaining …".The noble Earl's Amendment also says that facilities should be provided for "advice, conciliation and arbitration …". Clause 2 deals with conciliation. Clause 3 deals with arbitration. Clause 4 deals with advice.
37 I suggest that we have spent sufficient time already on the first clause of the Bill. Bearing in mind that some of the subjects raised—especially the question of compulsory arbitration, which is the subject of a later Amendment—have to be raised on subsequent clauses, I believe that we should now get on with the job.
The Earl of GOWRIE
Perhaps I may take my cue from the noble Lord, Lord Leatherland, and come in at this point. The noble Lord, Lord Douglass of Cleveland, said that I might be smiling to myself at the amount of argument or disagreement that has been provoked. I am; but I hope in no sense in a malicious way, because I think the debate has shown that while there are great areas of disagreement as to how collective bargaining should take place and what the role of arbitration is, whether there should be a statutory incomes policy and so on, we are arguing as citizens and as a House of Parliament and not directly across Party lines. That is an important improvement.
I did not quite expect my fresh-faced, mild and, I thought, innocent little Amendment to put the cat among the pigeons in this way; but perhaps it will save us from returning to some of these points later. I cannot help pointing out that there are some ironies. The noble Lord, Lord Douglass of Cleveland, made an impassioned appeal that we should not have more words to argue about. On the Back Benches of this House, on the industrial relations legislation of Mr. Heath's Administration, I remember sitting through impassioned pleas that we should not have legislation of any kind in this field. In fact, we have this slightly longer Bill of legislation in this field to contend with now. But there are ironies and we accept that historical events have created them.
§ Lord DOUGLASS of CLEVELAND
Would not Mr. Heath at that time have been well advised to take our advice? And, if this is so, would your Lordships not be well advised to take our advice today?
The Earl of GOWRIE
I thought I was making a good showing of taking advice but perhaps the noble Lord is anticipating me a little. I want to answer a specific point put by the noble Lord, Lord Popplewell. He asked who is to decide 38 where the extension of collective bargaining should be appropriate. Looking forward in the Bill to Clause 4 which we shall be debating imminently, that says:The Service shall if it thinks fit, on request or otherwise, provide, without charge … advice …and so on. This is the kind of thing that I had in mind: that the Service would decide where the extension of collective bargaining would be appropriate. To those noble Lords who suggest that it is always appropriate, I would say that there may be many situations where its extension and improvement may be justified and our Amendment allows for that; but that surely there are also situations where it has no part to play. The example which I think of is in managerial positions, and there are some small firms where participative management is already effective at an individual level without trade union intervention.
The noble Lord, Lord Shepherd, I would correct on one point. He implied that I was saying that the Conciliation Service was a new organisation of which we were only recently aware. I would contest that. Looking back at my notes, I see that I said that the Conciliation Service has a long and honourable record. I really meant that the steel dispute threw it into sharp relief and we were all glad that it did so. He said that there was little between us but a question of tone. I tried to argue earlier that tone is very important in this Bill, because the tone of this Bill is directed towards one side of industry rather than another. I hope that he will take that point on board. I also hope that we may be sensitive throughout our debates to the somewhat loaded and biased tones which crop up in the sentencing in this Bill, and alert ourselves to them and try to improve them where we may. With that and the long deliberations ahead in mind, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 4.4 p.m.
Lord SHEPHERD moved Amendment No. 1:
Page 2, line 13, leave out from ("provisions") to ("III") and insert ("(so far as applicable) of Parts I and").
§ The noble Lord said: This Amendment makes a minor correction. One of the 39 provisions of Part I of Schedule 1—namely, paragraph 13 of subsection (2)—does not strictly relate to the Service as such but relates to the certification officer who is to have a separate statutory existence. Therefore, it is necessary to qualify the effect of Part I of the Schedule in respect of the Service by the addition of the words "so far as applicable". I beg to move.
§ On Question, Amendment agreed to.
§ Clause 1, as amended, agreed to.
§ Clause 2 agreed to.
§ Clause 3 [Arbitration]:
Lord WIGG moved Amendment No.2:
Page 2, line 35, leave out from ("may,") to ("refer") in line 36 and insert ("subject to subsection (6A) below").
§ The noble Lord said: I am sorry that the noble Lord, Lord George-Brown, has left the Chamber, because in his absence I have to mellow some of the things I have to say. He made the surprising statement that the only countries that have limited the powers of the trade unions in the sense that I, or the employers, for that matter, would wish to limit them, are the totalitarian countries. This seems to be the most arrant nonsense—and I am expressing myself mildly in putting it in that way—because the more complex our lives become, the more we rely upon the machine and upon organisation alike, the greater necessity there is to regulate. We do it in a variety of ways. It is done in one way in totalitarian countries and in another way in the societies which have legislative Chambers. But in the ultimate, however it is done, it must be done by consent; otherwise, it will not work. If enough people will not "wear it" then it breaks down.
§ What I am arguing for here—and I am not going to repeat myself more than once, because I have already said most of what I want to say—is that when I look at this Bill again I think it is a first step, but that ultimately we have to recognise where we want to go. It is no good our blindfolding ourselves or saying that this is terrible, that this is totalitarian in concept, that the trade unions are not going to wear it or that 40 the employers will not wear it. We have to accept the conditions under which we live.
I find myself politically almost midway. Thinking about it, I fall back on some words of Cecil Day Lewis which were written at the beginning of the war:
It is the logic of our time, no subject for immortal verse,
That we who live by honest dreams, defend the bad against the worse.
That is roughly my point of view about the political and economic policies of both Parties. The Labour Party is not as bad, and can never be as bad, as a Conservative Government. But as I am at the end of my life and I have those around me, I naturally, from time to time, look ahead and say and repeat that this country is not going to survive. It is no longer in the first division; nor is it in the second division; nor is it in the third division. It is steadfastly sinking to the bottom of the fourth division, and mainly because the citizens of this country and their leaders—the word "leaders" is expressed in inverted commas—either do not recognise what the truth is or, if they do, are afraid to tell the people what it is. The simple fact is that you cannot survive as an industrial power, with all that that means, if you are to be at the mercy of anybody who at any moment cares to put his foot on the throttle or on the brake. It is just not a starter.
§ We have begun—very belatedly, sheerly under the impact of events or because, if you like, we are frightened—to take the first step. The Conservative Administration introduced the Industrial Relations Act. Like the noble Lord, Lord Douglass of Cleveland, I tried to stop the Gadarene swine from going over the precipice but they would not listen; they are deaf, so they went on. So that we find this Bill—and I must say that one or two noble Lords who spoke with great authority seemed to know singularly little about what they were talking. When the present Administration came in we did not have this Bill; we had the Trade Union and Labour Relations Act. What did it do? It repealed in toto the Industrial Relations Act; but it realised, quite by accident, if you like, that that measure contained something which ought to be retained. So that as an interim measure we proceeded to re-enact in the Trade Union 41 and Labour Relations Act certain provisions that were contained in the Industrial Relations Act. We have this Bill which builds on the foundations; and presumably we are building not as a stopgap measure but for the future for some distance ahead.
§ I agree that the Advisory, Conciliation and Arbitration Service is the first step, but it is only the first step. If it is the last step, then all that I fear will come to pass. But it need not if we accept that it is the first step; if we do not arouse fears; if we take into account all that has been said in this debate; if we do not seek to impose, but hope that in the ultimate, not by imposing but by recognising the objective facts of the situation, all parties will take the common sense view and say that we cannot be judges in our own cause, and we have to find some other method, so that where there is a breakdown somebody, at some time, ought to decide.
§ My noble friend Lord Shinwell said: "Do not leave it to market forces, do not leave it to the muscle of the strongest. Let us try to find another way." If we leave it to the muscle of the strongest, if we leave it to the lawyers, all we are doing is creating here the conditions for a further row later on. What we want to do is to build a bridge which will last. I have put in a new subsection which will retain consent. I do not wish to proceed except by consent. There must be consent in the interim, but ultimately, I am proposing to give the Secretary of State the power to table regulations which would be subject to the Negative Resolution procedure, which means they can be debated in both Houses. The Secretary of State would lay down the rules. So we retain consent until such time as the Secretary of State decides otherwise. When we are ready, when we are wise enough, and sensible enough, he will be able, through a Statutory Instrument, to lay down the conditions for the step forward. In other words, I want to tread on nobody's corns, to arouse no animosities. I do not want to impose anything. I have learned the rule that you cannot govern, except by consent. All that I accept.
§ More power to the ACAS. I think, to be realistic about it, I would drop the word "Advisory", because it is more than advisory; it has a lot more muscle 42 than that. I leave it to the Government of the day, to the Secretary of State, to choose. He is responsible to both Houses of Parliament, and when he is ready he can table his regulations, perhaps not right across the board, perhaps by the agreement of a particular industry, and be able to move in a certain direction, so that ultimately each side will accept without imposition that they cannot be judges in their own cause. That is what my Amendment is about. I tabled it with no great hope that it would be accepted. Indeed, I fall back on another half-remembered quotation: if you can bear to hear the truth spoken twisted by knaves to make a trap for fools. Again, the day on which facts will convert my fellow countrymen to its realisation, they must cease to be the fools they have been since the end of the last war in the field of industrial relations.
§ 4.23 p.m.
§ Lord SHEPHERD
I am grateful for what my noble friend has said. When I saw his Amendments on the Marshalled List, particularly referring to the Secretary of State and to regulations, I was not certain what he was seeking to achieve. Therefore, I need to speak to this Amendment and to advise the Committee that the Government would not recommend that it should be accepted. Amendment No. 3 would leave out the need for consent before an arbitration report could be published. I think that that would create great difficulties. It could be that that might persuade one party to a dispute not to go to arbitration.
§ Lord SHEPHERD
I am taking the Amendments as I am advised, and I am seeking to advise the Committee what would happen if these Amendments were accepted. My noble friend is right in saying that later on we have these references to the need for the consent of the two parties. There is nothing between us here. Paragraph (b) reads:The Secretary of State has made regulations to reserve such consent to himself or to the service.43 If that were to be included in the Bill, there would be doubt about whether it would permit the Secretary of State to withhold consent even though there had been consent by the two parties in dispute to go to arbitration. I cannot believe that that is what the Committee would have in mind.
Another construction that could be placed upon it—that which most of my noble friends on this side of the Committee seized upon—is that this would permit compulsory arbitration; in other words, the Secretary of State, requiring arbitration in a dispute where the two parties, or one of the parties, has not agreed to it. There are two aspects in this. Arbitration, at the end of the day, can succeed only when both parties are prepared to co-operate, to give evidence, and the purpose of arbitration is that both sides should agree to the award. In the majority of cases, the practice is that an arbitrator's award is accepted. It may be that a further claim is made later on. Most experience is that arbitration awards are accepted. The greatest concern that I would have about such a provision, for the Secretary of State either to prevent or to make compulsory arbitration for a case, is that this would go right against the whole principle which all the parties have been concerned with here, that the ACAS should be an independent body. It should not be seen by either side of industry as in any way an instrument of government or of a particular Minister. I cannot believe that compulsory arbitration is either desirable, or would work. We have to rest upon the spirit under which the ACAS is working, and under which it is being accepted by both sides of industry. I think my noble friend Lord Briginshaw referred to the large number of cases which have been referred to it—about a thousand—and, in most cases, most satisfactorily dealt with.
My noble friend asked whether this was the end of the road and the last Bill we shall have in the field of industrial relations. It would be a very foolish man who would say that we may not see legislation in the next Session dealing with industrial democracy, because industrial democracy has as significant a role in industrial relations as anything that is being proposed in this Bill. But I agree with my noble friend that unless we can put right all the problems and all the 44 difficulties that beset us in the industrial relations field, until we can give confidence to those investing capital that what they invest will earn a proper return, unless the workpeople themselves feel that there can be greater satisfaction in the job they are doing and in the atmosphere and conditions under which they are working, then there is very little future for this country. I accept the view of my noble friends who have spoken earlier in this matter, that it is best to leave this broadly based as it is in the Bill, and that we should not consider any questions, either of compulsory arbitration being imposed or, as it could have been constructed under paragraph (6A) of a Secretary of State withholding consent to arbitration where the two sides of industry may themselves have already agreed to take that step.
§ Baroness SEEAR
I rise on a point of clarification. A good many people have considerable sympathy with the point made by the noble Lord, Lord Wigg, in that behind his Amendment, if I understand him aright, is the conviction that disputes of this kind can be so serious for the national interest that they cannot be left to settlement between the two parties, and that there conies a point at which there has to be overriding third party intervention. While accepting that, one also accepts the fact that consent is vital if there is to be ongoing satisfaction in industrial relations. But I would have thought that the point put by the noble Lord, Lord Wigg, is covered if the noble Lord, Lord Shepherd, would confirm as a fact what I believe to be the case—that the power to set up a court of inquiry under the 1919 Industrial Court Act still stands. Therefore, in the event of a dispute affecting the national interest the Secretary of State can set up a court of inquiry. I fully realise that is technically not arbitration, but we all know that in effect it is arbitration. Would the noble Lord, Lord Shepherd, confirm that the public interest is still protected by the court of inquiry procedure under the 1919 Act—because, if so, the urgency of the Amendment moved by the noble Lord, Lord Wigg, becomes very much less.
§ Lord SHEPHERD
What the noble Baroness has said is perfectly correct. I had intended to refer to it, but I perhaps forgot. I was really dealing with the 45 Bill. But what the noble Baroness has said is correct: the existing powers under the 1919 Act remain and the Secretary of State, if he wishes to do so, may set up a court of inquiry if in the national interest he thinks he should do so.
§ Lord WIGG
In view of what has been said, it is perfectly clear that I shall not take the Committee with me if I divide. I will therefore seek the leave of the Committee to withdraw the Amendment, but I must say I am by no means satisfied. I was aware of the 1919 provision, but the fact is that this was a new deal and if therefore the Secretary of State was prepared to use these powers—and I must say if he is prepared to do so—then there is no reason why a reference should not have been made in the Protection of Employment legislation. But if indeed you rely upon the measure of 1919 without a reference, it means that you depend on the political courage of the incumbent or the man who holds Office at the time when the matter arises. I have no faith in the political courage of Ministers or Administrations when they come under pressure of that kind. But I have said what I have to say: I believe that what I say is the truth. I have believed this consistently over a number of years and I can think back over many occasions, though I will not weary the Committee by detailing them, on which I have mentioned it. But I believe I am right on this one, and if the Government are content to rely on this measure because they have not the courage to spell out what needs to be done, that is their responsibility and not mine. But I say this with absolute confidence: this country has absolutely no future politically, militarily or as a democracy unless it can solve this problem. It has today in this Bill once again signally failed to face up to its responsibilities. I beg leave to withdraw my Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 3 agreed to.
§ Clause 4 [Advice]:
§ 4.34 p.m.
The Earl of GOWRIE moved Amendment No. 4A:
Page 3, line 31, at end insert ("and procedures in connection with claims made under Schedule 11 of this Act;").
§ The noble Earl said: With the leave of the Committee, I should like to talk to Amendments Nos. 4A, 4C and 4D together. We now come to the second of the debates on the ACAS and the Amendment which my noble friends and I wish to propose to Clause 4. Clause 4 is concerned with the advisory side of the Service's work. It is our contention that this all-important function—the aim of prevention rather than the need to cure so to speak—must be allied to consideration of Schedule 11, which deals with the extension of the terms and conditions of employment. As we shall note later, Schedule 11 in its present form, besides confusing and perhaps interfering with the Government's counter-inflation policy, is likely to create considerable industrial relations difficulties.
§ Clause 4 requires the Service to provide on request—and I am thinking here of paragraph (d)—advice to employers and employers' associations among other groups as to how to avoid and settle disputes and workers' grievances. Employers anticipate profound industrial relations problems in connection with Schedule 11, and so we seek to include Schedule 11 in the wording of Clause 4. Employers will need advice in this area for two reasons: first, so that they may know whether they are liable to have a claim registered against them; and secondly, so that they may avoid reaching a settlement which is going to be used against other employers in their area or industry. Further—and from a national point of view this is of even greater importance—the advice that ACAS might wish to give or be required to give in respect of employees seeking comparable wages and conditions with those employed in similar situations might now be in direct conflict with the counter-inflation policy. So we also seek to add a paragraph, (f); that is, to clarify the ACAS relationship in respect of any such present or future counter-inflation policy.
§ It is of course easy to see why the Government have got themselves into such a royal muddle here, so that in respect of this Bill their left hand does not know what their right hand is doing. I am reluctant to use the old joke about feet here, but really only the Secretary of State and Mr. Jack Jones seem to have reconciled in their own minds the confusion at the heart of this legislation. It 47 arises because it was conceived under the ill-fated star of Social Contract Mark I, but has been delivered under what we must all hope will be the more auspicious planet of Social Contract Mark II. As I said, the need for advice in this area will be much greater now than when the Bill was originally presented in another place. A £6 limit has been set upon pay increases universally, and while the Trades Union CFongress support of this is encouraging, there will be those who will be looking for ways of getting pay increases above the £6 level. If some get higher increases the justice of the policy, which has already been admitted by the Prime Minister to be rough justice, will be lost altogether. We know from experience of the Conservative counter-inflation policy that Schedule 11 could act to provide higher increases for some. This would be inflationary and would run counter both to the needs of the present difficulties and the spirit of the Remuneration, Charges and Grants Act.
§ We are not denying the need to help the low paid which the Government say was the original motivation behind Schedule 11, and I think we shall be able to demonstrate this to the Committee when we come to amend Schedule 11. What we are now saying is that the best help we can give to all, including the low paid, is to see that inflation is kept down and that the Government's counter-inflation policy will work. Employers are, as I said, genuinely afraid that Schedule 11 can be used in a way which would undermine the £6 limit. My contention is that, if only to allay that fear and to help them counter any unjustifiable abuse, the advice of ACAS should be available, but of course the need for their advice on pay does not stop there. Employers have no detailed advice as to how to implement the £6 limit: they have it from no one.
§ It is ridiculous, for instance, that the CBI should have to issue guidance to local negotiators based on statements by Ministers in another place and unofficial assistance from the Department of Employment. Wires are bound to get crossed and misinterpretations proliferate. Acts of Parliament cannot cover every eventuality in pay negotiation and more detailed guidance is needed. I think we 48 would all agree that the ACAS should be the body to give that advice.
§ This is in effect the second year that the Government and the unions have agreed to the idea of wage limitation, but have done so without offering guidance on its achievement at plant and company level. Perhaps this is partly why the first phase of the Social Contract failed. It seems to me that lack of such guidance can make policies of this kind meaningless. We know that there could be no reference to ACAS offering advice in the event of statutory policy. At the time that this Bill was first drafted there was no such statutory policy. At that time, I think we all remember, the Government did not even contemplate that they would ever have to introduce such a policy. Now even Mr. Jack Jones is talking about some kind of version of this policy becoming permanent. But now that we have effectively statutory control, surely it is time that we should recognise that employers need advice on implementing it, whether it is voluntary or whether it is a statutory control.
§ As ACAS becomes involved in pay disputes this winter—for example, in the recent blast furnacemen's dispute—it will need to be able to offer advice in the knowledge that it is competent to do so. Otherwise we could easily imagine a case where the ACAS arbitrates in a dispute resulting in a pay settlement and as the law stands at present the Department of Employment could then decide that such an arbitrated agreement was outside the £6 limit and instruct the Price Commission to penalise the employer accordingly. That situation is intolerable for ACAS, for the employer, for the country and indeed, I should have thought, for the Government's whole counter-inflationary policy.
§ The need for the addition of the word "retention" has become evident due to the plight of the country to which the present Government have brought us. The last-minute amendment of Clause 103, to permit the Secretary of State to provide temporary employment subsidy, is a case in point. The Government's Amendment to Clause 103 was prompted by their fears for unemployment—and I understand from our exchanges in the House this afternoon that we are going to hear 49 more of these tomorrow. As unemployment figures continue to soar the Government have come up with the temporary employment subsidy whereby employers will be paid to keep on workers even though they might not be able to afford to do so. It does nothing, therefore, to meet the needs of the 1¼ million people already unemployed—more than at any time since the 1930s—and it certainly does nothing to help the 120,000 or so unemployed school leavers who have never had any employment which could be temporarily subsidised.
§ While we are sceptical—we must reserve our position here—about whether the temporary subsidy can stop the unemployment caused by the fiscal policies of the Government, everyone must surely want to see it being helpful where it can be. We want to see particularly encouraged the philosophy which should lie behind action of this kind; namely, that in a recession, which world conditions suggest may be with us for some time yet, employers should be encouraged to keep their workers on. This means that advice will be needed on how to reorganise production so that useful and profitable work can be found for as many as possible. That seems to me to be an area where ACAS can also have a useful role. That is why we seek to amend this clause, and I beg to move.
§ Lord BROWN
Can anyone doubt that the provisions of each one of these three Amendments are already included in the terms of the Bill? They add nothing to the Bill. No reasonable interpretation of the Bill could possibly exclude them. These Amendments would merely add words for the sake of a degree of particularisation which is entirely unnecessary.
§ 4.45 p.m.
§ Lord SHEPHERD
I am not entirely with my noble friend Lord Brown, particularly in regard to Amendment No. 4D, which I wish to explain in some detail. I think that the noble Earl is mixing up the responsibilities of Government with the proposed duties of ACAS. We have throughout stressed that it is our desire, and the desire of both sides of industry, that ACAS should not only be independent but be fully seen to be independent. I hope we shall keep 50 that point very much in mind when considering duties to be placed upon it.
In regard to Amendment No. 4A, the wish is to include the words "and procedures in connection with claims made under Schedule 11 of this Act;". We shall have an opportunity of debating Schedule 11 later on and I will indicate, and I hope that the noble Earl will accept, that the consequences of our suggestions in Schedule 11 are not at all inflationary; they change in a minor way some of the provisions that have been on the Statute Book for very many years. Basically, such changes as there are deal with pockets of low pay. I do not believe there will be any dissent from the suggestion that there is a real need to deal with this particular area. Of course advice will be available from ACAS within this field. If the noble Earl will look at paragraph 5 of Schedule 11 he will see there are a number of procedures under which ACAS is required to operate when a claim is made to it under Schedule 11. One of them is that there should be conciliation. One of the most important parts of conciliation is the extension of information and the explanation of information. If the noble Earl again will refer to paragraph 5 he will see that, if this fails, arbitration is available. Therefore, I should not have thought there was any need specifically to refer to this particular matter in the various general requirements embodied in Clause 4.
In regard to Amendment No. 4B, I should have thought that advice on training of officials of trade unions would be within the definition of facilities for officials of trade unions. I think it is on Clause 49 that we shall have a full opportunity for a debate on this subject. Therefore, I should not like to go any further on this Amendment.
The Earl of GOWRIE
I think the noble Lord must have missed something I said. I said that I was not speaking at this time to Amendment No. 4B. That would be the subject of a later moving.
§ Lord SHEPHERD
Then we will leave that. In regard to Amendment 51 No. 4C—after "recruitment" to add the word "retention"—I was of a mind to accept the Amendment, although I am not quite so enthusiastic about it after some of the words that the noble Earl used in putting the Amendment forward. But I myself would take the view that retention of employment is a matter on which ACAS could well provide advice to employers. If the noble Earl wishes, I am willing to accept that Amendment, but on condition that it is part and parcel of the general provisions in paragraph (g).
In regard to Amendment No. 4D—to add "(l) compliance where appropriate with statutory and voluntary incomes policy"—this is the area where we have to lay down quite clearly the Government's responsibility. This is Government policy. It is a statutory policy. It is also true if it is a voluntary policy but a voluntary policy is one that has been agreed to by the unions and the CBI, the two sides of industry. I suggest that ACAS has not yet got a statutory role. The Chairman, Mr. Mortimer, has made his position clear. Of course, information on policy will be given if requested, but in my view it is not a statutory duty that ought to be imposed upon ACAS, particularly if you wish to preserve not only the outward presence but also how it is seen by both sides of industry—as a body which is independent of Government. This is especially true when one looks at the question of arbitration.
One should remember that it is not the Service itself that is carrying out the arbitration. The Service appoints the arbitrators. Therefore, they are fully independent. If you are to get both sides to come to arbitration, it cannot be dealt with in any other way. In regard, therefore, to Amendment No. 4D I can tell the noble Earl that the Government think that it is very inadvisable and that they are utterly opposed to the proposals in Amendment No. 4D. We are prepared to accept Amendment No. 4C. We do not think Amendment No. 4A is necessary. Similar provisions are already contained in the Bill. It would be wrong to make it a specific point in this general approach on advice which is laid out in Clause 4.
§ Baroness SEEAR
The Committee probably knows that my Party believes that a statutory incomes policy will have to be enforced. At the same time I should like to say that this cannot be any part of the job of ACAS. The thing which killed arbitration in the 1960s, because it went into grave disuse, was the fact that Governments had incomes policies and the arbitration machinery was seen as an instrument of the Government's economic policy. We on these Benches believe that the Government will have to develop more effective instruments for their incomes policy in relation to wages but that ACAS is not its instrument. This is a very important distinction to be made. There can be no arbitration if the arbitration body is perceived to be part of the enforcement of the Government's statutory policy.
The Earl of GOWRIE
Having listened not only to the Government but to the noble Baroness, Lady Seear, I confess myself to be in some difficulty. As I understand it, her position is that while there may be a need for a statutory incomes policy and while, presumably, she accepts that there is an incomes policy of some kind in effect at present, ACAS is not the body that should administer it. I hope that is a tolerable representation of what the noble Baroness said. I am not maintaining that ACAS should administer it; far from it. As the noble Lord the Leader of the House told us, ACAS is supposed to be an independent and an a-governmental body. My argument is that if the Government of the day—be they Labour, Liberal or Conservative—decide for reasons of their own to impose either a voluntary or a statutory incomes policy, or the kind of policy we have at the moment where the one masquerades as the other, ACAS must be able to advise employers about the effects of it, otherwise the other advice that they are charged by Statute with being given under his legislation will be meaningless. Will the noble Lord enlighten me on that point a little further?
§ Lord SHEPHERD
If either side of industry were to go to ACAS for an explanation of the incomes policy as of now, no doubt they would give an explanation of it, but they would do so on a voluntary basis. The noble Earl is proposing a statutory duty to give that 53 advice. When you impose a statutory duty to give advice immediately you attach it firmly to an area for which they themselves are not responsible. That is Governmental responsibility.
The Earl of GOWRIE
I am still in a quandary. We come back to the point made in the first debate about a conflict between interpretation of duties and interpretation of functions. As I understand it, Clause 4 sets out perfectly clearly and fairly some of the functions of ACAS. It says:The Service shall if it thinks fit,"—it may not think fit—on request or otherwise,"—it may or may not be requested—provide, without charge,advice to various bodies. I think we are in agreement about that. This advice as it thinks appropriate—the provision is covering its likelihoods here—is itemised as being the kind of issue about which ACAS might be called upon to advise, if it thought appropriate. If these hypothetical situations are clearly itemised in the Bill, why cannot we equally itemise the hypothetical but the noble Baroness, Lady Seear, would say all too likely eventuality of a statutory incomes policy? I wish that the noble Lord the Leader of the House would clarify that point.
§ Lord BROWN
The noble Earl must surely be aware that last week the Service was engaged in helping the country over the blastfurnacemen's strike and during the discussion, the contents of which I do not know, reference to the present voluntary incomes policy was made. He must know that this is part of their role. To use the word "compliance" in an Amendment of this kind is immediately to raise the hackles of people, because, whatever the proper interpretation of that word may be, to insert that word into the Bill in the present context would have damaging results, and I am quite sure that the noble Earl is well aware of this.
§ Lord ROBERTHALL
I agree very much with the points made by the noble Lord the Leader of the House, the noble Lord, Lord Brown, and the noble Baroness, Lady Seear. It seems to me that "compliance" is a quite different matter from the kind of advice which this body is supposed to give. The two difficulties which will arise are whether 54 or not a proposed settlement falls within the terms of the policy. That will be a kind of ministry of law which it is not proper to put into the hands of a body of this kind. It is more like the powers that the Treasury have to say whether or not a dividend payment falls within the regulations. The other point is that if one side or the other is determined to breach the incomes policy there is a problem, but it is not a problem which in my view is at all appropriate to this proposed body.
The Earl of GOWRIE
I asked the noble Lord the Leader of the House whether he could enlighten me a little further about the difficulty I am in. While he is deciding whether this is appropriate, perhaps I could point out to the noble Lord, Lord Brown, what I mean here by "compliance". Perhaps I have chosen the wrong word, although I do not see it. My suggestion is that there may be clashes between the advisory function of ACAS and the policy of the Government of the day. Since these situations under Clause 4 are to some extent hypothetical, anyway, what is the objection to allowing ACAS to advise on a policy which in effect is in existence at the moment and may continue for some time?
§ Lord BROWN
The noble Lord is well aware that the job of this part of the Service is mediation. To couple a body that is concerned with mediation with the word "compliance" is psychologically very dangerous indeed.
The Earl of GOWRIE
I am not quite sure that it is, for this reason. I am talking not about compliance in the sense of "you shall comply" but about advice to employers as to whether procedures or activities undertaken by them are complying with the law of the day.
§ Lord SHEPHERD
The noble Earl must be aware that at the Department of Employment there is already a Department specifically set up, and it has been in existence since the Social Contract was being exercised, for the giving of advice to both sides. That is now available. As I see it, the question between us here is whether this should be a governmental function, whether it should be carried out by the Government, and Parliament 55 makes this policy, or whether it should be given to an independent body.
As I said earlier, if anyone was to go to this independent body and ask for advice, no doubt the Service would give the advice but it would not be required of them statutorily so to provide; it would be part of the general service that they are seeking to provide. I would suggest to the noble Earl that this interpretation or explanation of statutory or voluntary incomes policy is that of the Government and the Department directly concerned and not the independent body, because it could then well affect the general approach and understanding of people as to the independence of this body.
§ Lord LEE of NEWTON
While I agree thoroughly with what my noble friend has just said, is it not the case that there is a need for explanations from the Ministry of Employment as to how the £6 maximum will work? There is confusion wherever there is a system of payments by results. I know that, when we were running an incomes policy at the old DEA, wherever we had a communal payment by results system—supposing we had had the £6 and take that as an example—provided the average of, say, 50 men were within that communal payment by results system, we took the average and within it many would of course go above the maximum; but provided the average worked out right we would advise employers that that was quite within the terms of the incomes policy.
Therefore I think there is a duty on the Government. I do not know whether they have ever issued advice of this type—I have not seen any—but I believe there is a duty for them to say whether they are going to work within the four corners of the kind of thing I have tried to explain, as we did in the incomes policy of a previous day. There is this complication again whereby there is a payment by results system by which you could be getting at national level national increases of X pounds and then, within the factory, the shop stewards would begin to negotiate and it might well result in an increase in payments by result which, if you add to the nationally agreed basic rate, would take you over the £6 limit. I think the noble Earl had in mind some- 56 thing of this sort. I do not know that any advice has been given. I know that within my own union there is anxiety on this point, because at this stage there is no advice as to whether there is a method by which you will compile a national agreement, plus the local agreements which take place afterwards. While I thoroughly agree that this is not a job for the arbitration people and it is entirely a job for the Ministry of Employment to make clear, I am just wondering whether that kind of advice has yet been given.
§ Lord SHEPHERD
If that was an example of what my noble friend thinks was in the mind of the noble Earl I am quite clear whose duty it would be to give that advice, and that would be the Department of Employment.
The Earl of GOWRIE
Since the noble Lord, Lord Lee of Newton, has put the point I was seeking to make to the noble Lord the Leader of the House, with all his experience which is considerably greater than mine in this field, I wonder whether the noble Lord could see whether we could come to some arrangement about this later. I am not wedded, as the noble Lord, Lord Brown, seemed to suggest—and certainly not mischievously wedded—to the word "compliance" because I was using it in a different context from the one he was suggesting. But I object. We on this side strongly object to the anomalous situation at present whereby an incomes policy, the £6 limit, call it what you will—call it by the least contentious name you can think of—is not provided with any kind of real guidance from the body which employers under this legislation would most naturally ask to be advised about. That, when the areas of activity which ACAS is to advise on are so carefully itemised, seems to me to be a pity.
§ Lord SHEPHERD
If it would help the Committee to get a move on, I am quite prepared to meet the noble Earl in another place—by which I do not mean the other end—in order to see whether we cannot arrive at a mutually acceptable form of words.
§ Lord COOPER of STOCKTON HEATH
Before we agree to that, may I point out briefly in a couple of sentences—because we do want to get on—that the whole of Clause 4 deals with 57 collective bargaining. All the items on which a service shall give advice are items where both sides of industry are involved. But when we talk about compliance we are referring to one party and not two parties, and I suggest that indicates that it is quite inappropriate to put compliance in as part of the duty of this Service under Clause 4.
The Earl of GOWRIE
I certainly readily agree to look for another form of words which does not include the word "compliance" though I still think that noble Lords on the other side of the Committee are thinking in terms of statutory compliance with some arrangement. I am not; I am speaking about whether employers may find themselves in a situation where ACAS is advising on one point and recommending one thing, and statutory institutions are recommending another, and this will create confusion. But in view of what the noble Lord has said on this word, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 5.9 p.m.
The Earl of GOWRIE moved Amendment No. 4B:
Page 3, line 34, after ("facilities") insert ("and training").
§ The noble Earl said: Clause 49 provides that an employer shall permit an employee of his who is an official of a recognised trade union to take time off for the purpose of enabling him, among other things, to undergo training in aspects of industrial relations relevant to the carrying out of those duties, as such an official. It further obliges the employer to pay the employee for time off. The whole question of training in industrial relations was the subject of a Report by the Commission on Industrial Relations in 1972. This covered all aspects of industrial relations training, including shop stewards. This aspect of the CIR's work is to be undertaken by the ACAS in future under Clause 4(2) or under Clause 5. Clause 4(2) refers to those matters listed in Clause 4(1). It is therefore appropriate that the subject of shop steward training should be included in the list under Clause 4(1).
§ In addition the ACAS will of course be specifically charged under Clause 6(2)(b) with the duty of preparing a code on time off for trade union officials and 58 it could hardly do this without becoming involved in such questions as the appropriate content and length of such training. It may be argued, and I expect it will be argued, that the training of trade union officials is a matter for the trade unions alone, but in my contention this makes it in no way inappropriate for inclusion in Clause 4, since the Service is charged by the trade unions among other people with the duty, if it thinks fit, on request or otherwise, to provide it on the items listed below.
In any case the fact that trade union officials are to be given time off work for this purpose and to be paid for it by the employer gives the employer a very reasonable and real interest in knowing that the time off has been profitably spent. This was recognised in fact in a joint statement on the training of shop stewards issued by the TUC and the British Employers' Confederation, which was a precursor of the CBI, which included the following passage:
It was agreed that this training is primarily the task of trades unions, but that where questions of release with pay arise, employers should be consulted about the syllabus.
I beg to move.
§ Lord BROWN
May I point out that in common parlance generally in use in industry and, I believe, among trade union officials, the term "officials" is confined to paid servants of the union, and normally excludes shop stewards. As I believe the main intention of the Amendment of the noble Earl, Lord Gowrie was directed to the training of shop stewards, these are not appropriate words with which to gain that end.
§ Baroness SEEAR
May I ask the noble Lord the Minister for clarification when he is answering on the Amendment? May I ask him whether it is the case that such training of shop stewards is permissible for grant under the Act covering employment and training? If not, may I ask whether it can be made so permissible, because it obviously affects the position of the employer in relation to training if he can claim grants, as he claims grants for all other kinds of training. It is logical that he should be able to do this, but I am not sure whether it is the case. I am sure it would help very much if this could be considered.
§ Lord SHEPHERD
Like the noble Baroness, Lady Seear, I also am not sure, but since my noble friend Lord Melchett has left my side I am hopeful that an answer will be shortly available to her.
As I was saying on the earlier Amendment, my understanding is that training would be regarded as a facility, and therefore I could argue that it is not necessary to add this word to this part of the clause. I agree with my noble friend Lord Brown, who was speaking from his great wealth of experience in these affairs, that officials of trade unions are paid officials and are not shop stewards. I can well imagine the great wrath of our trade unions—or, for that matter, any other organisation—if we were to put in here provisions for giving advice as to how a paid official of a trade union should carry out his duties. This is a matter which has been discussed in another place. I wonder whether the noble Earl, Lord Gowrie, would agree that I should look at what he has said. We would also have an opportunity of debating Clauses 49 and 50, and I would then have consultations with my right honourable friend the Secretary of State for Employment to see whether there is any way in which we can meet the spirit of what the noble Earl has in mind. I would not wish to raise too many hopes here, but I will undertake to see what can be done.
§ Lord COOPER of STOCKTON HEATH
May I just add for the information of noble Lords, and in reply to the question from the noble Baroness, Lady Seear, that under the training Acts the training of shop stewards has been accepted for reimbursement once the syllabus has been agreed. Noble Lords will be able to see the importance of this, because according to the unions and their politics, one might have all sorts of syllabuses. A couple of years ago, my own union arranged this, and so this is a facility which is covered. The term "official" is well understood as being the full-time paid official.
I listened carefully to what the noble Earl, Lord Gowrie, has said, and although he made a case for training—and we would all agree that even the full-time official needs training—this document is 150 pages long. The job of a trade union official is becoming more and more legalistic. He has to be a jack of all 60 trades. The requirement for training is well established, but the important point here is who does the training. In this country, the trade unions are very independent; this is one of their characteristics. They do not want the State to do their work for them. Some people argue that they ought to, and it may well be that this will develop. But the trade unions are alive to the requirement for training. I think that this should be left as it is, that the word "facilities" should remain there, and not specify too much.
§ Lord SHEPHERD
I am most grateful for what my noble friend has said. I did not endeavour to reply to the noble Baroness, Lady Seear, because on this matter the note that I have is not exactly what I would call firm advice. It says they "think it probably is", which I do not feel is particularly helpful as an authoritative statement. However, I will look into the matter and communicate with the noble Baroness.
Equally, I ought to be fair to the noble Earl, Lord Gowrie, and to my noble friend, when I refer to the definition of "officials". I understand that this was changed by Section 30 of the Trade Union and Labour Relations Act which includes shop stewards. But we still could have the difficulty if we had this provision, that it would still cover paid officials, which clearly would not be acceptable.
The Earl of GOWRIE
I accept that it is one of the functions of the noble Lord, Lord Melchett, to come to the rescue of the noble Lord the Leader of the House, but I did not know that it was one of the functions of the noble Lord the Leader of the House to come to my rescue! I am grateful to him on that account. I accept what the noble Lord, Lord Cooper of Stockton Heath, said, with this proviso, that when the noble Lord waved the Bill at me and said in terms more of sorrow than of anger that it is 150 pages long and that the officials who were the shop stewards or otherwise would have to become jacks of all trades to master it, he should have waved the Bill, or even thrown it, at the noble Lord the Leader of the House. It is not my fault that this massive superstructure of legislation is being erected. The noble Lord, Lord Shepherd, said, even if I must be guardedly pessimistic, that he would try to meet me here, and 61 in view of such assurances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 4 agreed to.
§ Clause 5 [Inquiry]:
§ 5.15 p.m.
§ The Earl of GOWRIE moved Amendment No. 4E:
Page 4, line 6, at end insert—
("( ) where an inquiry relates to industrial relations in a particular industry, undertaking or part of an undertaking, the Service shall before entering on the inquiry, inform those likely to have an interest in it of the scope of the intended inquiry and give them a reasonable opportunity to express their views in relation to the inquiry.").
§ The noble Earl said: This Amendment follows broadly along the same lines as an Amendment tabled in another place, but it has been slightly reworded as I shall explain. Clause 5 gives the ACAS power, if it thinks fit, to inquire into practically anything it likes in the industrial relations field, although not, it seems, to advise on statutory or voluntary relations policies. On the face of it, this is a very wide-ranging power, and one which is likely to give rise to misgivings, particularly among the very large number of people who feel that industry is already subject to far too much interference and intervention. We do not doubt that the Service will continue to conduct its work impartially and without bias. The purpose of the Amendment is to make it quite clear to all concerned that this is how it will act in practice, that it will be constructive, and that there is nothing to fear from an inquiry that it undertakes. It might be argued that this could be assumed in the light of its record anyway, but I remind the Committee of my words in the first debate, that we are dealing with a Bill which contains, by general agreement, very loaded language.
§ If the Service is seen to be acting fairly, all parties can be expected to have confidence in it. There is no question of any party being given a right to veto here. It is a matter for public reassurance that inquiries will not be undertaken capriciously, or without a proper understanding of the surrounding circumstances. In another place, the right honourable gentleman the Minister accepted that before starting an inquiry the ACAS must prepare the ground thoroughly and 62 consult all those likely to be involved. Therefore, the Minister suggested that it was unnecessary to make a specific provision. Pressed to say, since both sides in another place obviously agreed with the objective, what objection he had to such a provision, he replied by saying that it would introduce unnecessary formalisation. We contend that when one is threatened with an inquiry into one's company, which inquiry might exacerbate an already delicate situation, a little formalisation might, indeed, be welcome. I beg to move.
§ Lord BROWN
I do not know whether the noble Earl has ever had the task of obtaining the help of an industrial consultant to look into an industrial problem, technology, organisation or what not. One of the difficulties always is that he is not able to say before he starts the areas in which he will have to conduct his investigation or analyses. You never know where an inquiry will lead. If you say to the consultant, "You must confine it to this department", his answer may be: "Well, although apparently the cause of the problem lies in that department, if we are allowed wider terms of reference you may be surprised to discover where it does lie'. The same applies to an inquiry by the Service. You cannot predetermine the area into which it is to inquire or the terms of reference in matters as urgent as a dispute over wages or whatnot. To insist that the Service pre-states its terms in this way I think would cause enormous delay in getting the Service to work in mediation on some problem, and would probably result in such restriction of its area that it would be unable to solve the problem through its mediation.
§ Lord SHEPHERD
This proposal was fully debated in another place, as the noble Earl said. At Report stage, the Minister of State said that the Service had given an assurance that as respects inquiries relating to industrial relations in a particular industry, undertaking or part of an undertaking, it had been the invariable practice to consult all those known to have an interest in the matter to be inquired into; to explain to them the scope of the proposed inquiry; to give them an opportunity of expressing views and to take these views into account before deciding to proceed with the inquiry. The Service gave a further 63 assurance that this practice would continue to be followed when inquiries are in future conducted under the provision of Clause 5.
At the end of that speech by my honourable friend the Minister of State, Mr. Prior, I think indicated that what the Minister of State had said had met the main point that the Opposition had raised in Committee and that there was wisdom in the course that ACAS intend to pursue. I was under the impression that the Opposition were satisfied with the position, and, therefore, when I saw the Amendment on the Marshalled List I thought that it may be that they were seeking further assurances to those that were given by my honourable friend the Minister of State. I would confirm that those assurances still pertain and it is the intention of ACAS to fulfil them. With those few words, I hope that the noble Earl will agree to withdraw his Amendment.
The Earl of GOWRIE
I should like to make one more point, perhaps directed to the noble Lord, Lord Brown. The noble Lord, Lord Brown, quite reasonably cites the normal practice, good procedure, a body of good habits in this regard. I am not one who will contradict him. Of course we should expect ACAS to proceed in this way. But the fact is that it is the noble Lord's right honourable and noble friends who are imposing so many conditions, so much legislative underpinning to the activities of ACAS, and we should simply like them, if there is to be this legislative underpinning, to include obviously reasonable provisions as well. I agree that this has been aired. I thought it right that it should be aired in this House as well as in another place. I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 [Codes of Practice]:
§ The Earl of MANSFIELD
I beg to move Amendment No. 4F standing in the names of my noble friend and myself. This Amendment would have the effect of substituting in subsection (5) of Clause 6 what I might call the Affirmative procedure rather than the Negative procedure, when a Code of Practice comes to be blessed, if that is the word, first of all 64 by the Minister and then by both Houses of Parliament. I do not really need to remind your Lordships of the importance that Codes of Practice will have to play in the future.
The DEPUTY CHAIRMAN of COMMITTEES (Viscount Goschen)
I have already put the Question, That Clause 5 shall stand part.
§ The Earl of MANSFIELD
If we are now in order, I shall try to proceed. If we are not, we can still make good the damage after this Amendment has been dealt with, as I understand the procedure.
§ Lord SHEPHERD
I hear various discussions going round. I would not wish in any way to suggest that the noble Lord the Deputy Chairman is in error. On the other hand, there is some doubt whether Clause 5 was put. Perhaps it might be put beyond any form of dispute if the Question could be put now and then there can be no doubt as to whether or not it was put.
§ Clause 5 agreed to.
§ Clause 6 [Codes of Practice]:
§ 5.28 p.m.
§ The Earl of MANSFIELD moved Amendment No. 4F:
Page 4, line 43, leave out subsections (5) to (7) and insert—
("(5) If a draft laid under subsection (4)(a) above is approved by a resolution of each House of Parliament, the Service shall issue the Code in the form of the draft and the Code shall come into effect on such day as the Secretary of State may by order appoint.").
The noble Earl said: I am sure that we are very grateful to the noble Lord, Lord Foot, for being, as it were, in his place and aware of what is going on, even if he has ruined what was left of my concentration. What I had been saying was that Codes of Practice will be extremely important in the scheme of things in the future. Subsection (1) provides that ACAS
may issue Codes of Practice containing such practical guidance as the Service thinks fit for
the purpose of promoting the improvement of industrial relations.
I certainly would not complain about that. In subsection (2) the Service is charged with the duty of preparing Codes to provide practical guidance on two further matters; that is to say, the disclosure of information, which we shall debate a little more in the future, and matters such as time off to be permitted by an employer. One hopes that there will be further Codes published in the future, because in many ways they are preferable to the rigidities of legislation. Indeed, they will not be any the less important, nor can they be ignored.
§ Under subsection (10) of Clause 6 it is specifically provided that although non-observance of a Code will not lay a person open to proceedings, the terms of any Code shall be admissible in evidence in any proceedings before an industrial tribunal or the Central Arbitration Committee. Indeed, as I understand the position, since the present Code has come into force it has played a significant part in cases of unfair dismissal and redundancy, and many points—and indeed, questions—have turned on whether there has been a proper observance or a failure to observe the Code. Therefore, the position is that these Codes will amplify the law and they will have a legal status, even if they are without the force of law; and, indeed, they will have an important legal effect on occasions. Their effects are likely to be broad, particularly over such matters as disclosure of information, and they may go a good deal further than such matters as pure industrial relations alone.
§ It was in this light that in the other place, both in Committee and on Report, urgent and bipartisan consideration was given to how Parliament should play its part, and to what part it should play in giving its assent to these codes as they should come along. In the other place—and I hope I am not being unfair about this—the Committee was bogged down by the fact that it discovered that it could not change any portion of a code, it could not amend a code, as indeed neither House can amend any statutory legislation of this nature, so that if anything was objected to in a code, as it were the baby would have to go out with the bathwater. By the time the matter came to be debated on Report in another 66 place, they had certainly run out of steam if they had not run out of time, and the matter was left in a slightly unsatisfactory state with the Minister of State really saying that the procedures of the House of Commons would have to be reviewed and possibly improved rather than the Codes of Practice for delegated legislation.
§ It was in those circumstances that those of us who came to table these Amendments considered how best to go about it. The matter is too important to be left to the Negative Resolution procedure. Certainly in the other place the pressure of work is such that if they did object under that procedure, any time provided for a debate would certainly be in the middle of the night and of short duration. Your Lordships' House is now meeting at a time when all good Scots should be North of the Border, and our time is too precious not to be properly spread about the things that should be debated. I hope that I have opened this little debate reasonably fairly and objectively. What I ask the Government to do is to take this away again and see whether there is anything that can be done to relieve the undoubted fears that both Houses have over this matter of these important Codes of Practice. I beg to move.
§ 5.33 p.m.
§ Lord SHEPHERD
The noble Earl invites me to take this matter back for further consideration and I would assure him and the Committee that I am very willing to do that. I was intending so to do without the noble Earl's invitation. I have a good deal of sympathy with the proposition contained in this Amendment, particularly when one considers it in relation to the Industrial Relations Act where, if my memory is right, similar provisions were put into the Bill because of pressures of the Labour Opposition.
My understanding of the concern in another place was the opportunity to debate the Code of Practice. I do not recall any steps being taken there for the Affirmative Resolution procedure, for the reasons which I shall indicate in a moment. So far as your Lordships' House is concerned, we get over our difficulties of providing time for debate through discussions through the usual 67 channels, but in another place time is of great essence. It is perhaps the most valuable commodity that the House of Commons possesses.
In the case of the Industrial Relations Act, there was one comprehensive Code of Practice introduced by the Secretary of State, and it could be dealt with at one go. However, in this case we have the difference that we shall have a Code of Practice formulated by ACAS after full consultation with both sides of industry. As the noble Earl said, under Clause 10 it has a position in terms of the industrial tribunals, so to that extent it is different from the Industrial Relations Act. There is one other difficulty. It may well be that there will be a whole series of codes being issued, not one comprehensive document. It may be that ACAS will produce Codes of Practice governing particular subjects. That is one of the difficulties about another place in finding time for debates on matters which may not be of immediate or essential importance, or perhaps of interest, but time has to be provided.
I had intended to take this back to find out, first of all, whether we were likely to see a substantive Code of Practice covering the broad frontiers of ACAS, in which case I would seek to persuade my colleagues, the business managers in another place on both sides of the House, that we could have the Affirmative Resolution procedure in regard to the substantive documents; and where there were Amendments or additions to them have the Negative Resolution procedure, so that it would be open to Members of either House to raise the matter if they felt that it was right and proper for it to be raised. We could get a substantive document approved by Parliament by the Affirmative Resolution procedure, but any Amendments could go through without a great deal of difficulty unless they raised matters that were contentious.
I shall have a look at this matter. I would not wish to say that I shall be able to persuade my colleagues in this matter, but I shall certainly see what can be done, expressing a general sympathy with the line made by the noble Earl, which is not dissimilar to the line that we, when we sat on the other side, had taken when the noble Lord, Lord 68 Drumalbyn was introducing legislation of this sort.
§ Lord DRUMALBYN
In view of what the noble Lord has said, I think I am right in saying that there have been occasions recently when Motions for Negative Resolutions have been put down on the Order Paper in another place and there has not been time to debate them. Therefore, might it suffice for the challenge to be in one House only? We might debate this kind of thing where we have more time even when they have not time to debate it in another place.
§ Lord SHEPHERD
I shall certainly respond to what the noble Lord has said. I can only speak for your Lordships' House. If the procedures remained as they are now in the Bill, I could without hesitation say that the Government would find time for these matters to be debated, but I could not speak for another place. This is a matter which I shall look into and will perhaps discuss with the noble Earl, Lord Mansfield, and we will see what needs to be or can be done on Report.
§ Lord WIGG
Can I be told what is meant by the phrase, "could not find time for it"? If it is subject to the Negative Resolution procedure and if a Motion is tabled, it is surely the duty of the Government to find time. Surely we are not at a point where matters of this importance are to be subject to the kind of thing referred to earlier in the afternoon, the kind of friendly arrangements made between the two sides that important matters are swept under the carpet.
§ Lord SHEPHERD
I wish the noble Lord would listen. I said that so far as your Lordships' House is concerned there would be no difficulty at all. What I said was that I could not speak for another place. I was responding to what the noble Lord, Lord Drumalbyn, said. I think that there is some degree of truth that there are occasions when Prayers are put down in another place and because of pressure of time they have not been taken. That is not applicable in your Lordships' House.
§ Lord WIGG
The noble Lord misunderstood me. I am not raising this question with him as Leader of the House but as a Minister. He does not speak 69 here with authority except with the authority with which he speaks on behalf of the Government. We must know that in both Houses of Parliament nobody is going to use the excuse in the Negative Resolution procedure that there is not time. I was not asking him that as Leader of the House, but as a Minister.
§ Lord SHEPHERD
I cannot speak for another place, but my understanding is that Prayers have been put down in the past but because of pressure of time they have not been taken or decided. Either as Leader of the House or as a Minister, I have been in your Lordships' House long enough to know that the noble Lord has only to choose the day on which he wants to put a Prayer on the Order Paper and the Government can do nothing about it.
§ Lord WIGG
I am sorry to keep on at this but I am going to. That is not the point. The question is whether the Negative Resolution procedure is satisfactory. Does it provide a long-stop or not? In the case of the Negative Resolution procedure, to be told that because it meets their convenience the Government cannot find time, destroys half of the long-stop. If that is the case I think the Opposition Front Bench have made an unanswerable case for the Affirmative Resolution procedure. If, for the convenience of the Whips, we are to be told in a matter of great importance that the Negative Resolution procedure does not apply, I am not satisfied; I want the Affirmative Resolution procedure.
§ Lord SHEPHERD
Since this is Committee and as the noble Lord and I appear to be at cross purposes, may I ask whether he is referring to your Lordships' House or to the other place?
§ Lord WIGG
I am not referring to this place or to another place. I am referring to the procedures here. What happens if a Motion is put when a Member of either place is seeking to use the Negative Resolution procedure? This is a brake on both wheels. We are now being told—and the Leader of the House confirms it—that on occasions the brake will always go in this House, but that it may not go in another place because it suits the Government's convenience. What is all this about? If they use the Negative Resolution procedure it is the Gov 70 ernment's responsibility to see that there is an opportunity for the brake to go on both wheels. If that is not so we should not rely on the Negative Resolution procedure but go for the much stronger safeguard, the Affirmative Resolution procedure.
§ Lord SHEPHERD
I said to the noble Earl that I had a good deal of sympathy for the case he made and that I would look at it, but presented the difficulties. So far as your Lordships' House is concerned the brake is there. It is a fairly effective brake, and it is up to the House to use it when and where they wish. I cannot speak for another place, but this is a matter which we can go into between now and Report.
§ Lord SHINWELL
I do not follow the merits or demerits of this dispute, and perhaps the noble Lord the Leader of the House will clarify the issue. When he asserts that he cannot speak for another place, obviously that is true so far as its procedure is concerned. But obviously he speaks for the Government, and as this is Government legislation surely he has full control over the Government legislation passing through your Lordships' House. Is that not so?
§ Lord SHEPHERD
That is so, and I have been seeking to respond to the noble Earl, Lord Mansfield, to see whether there was some way in which we could overcome the difficulty to provide a degree of brake in this matter while recognising that there are certain difficulties in another place. It is interesting to note that another place did not move an Amendment in this form. They were more concerned about achieving a debate. If my memory is right, there was general agreement that procedures would be provided. The noble Earl is looking for something more formal, and this I have undertaken to look at.
§ The Earl of MANSFIELD
It seems that the noble Lord the Leader of the House has more difficulty than I over this Amendment. As I recollect the position, the other place was really concerned about something which they called a Merit Committee and how, as it were, they could have their cake and eat it. By keeping the Negative Resolution procedure they could still debate individual parts of the Code of Practice. They came 71 to the conclusion, unfortunately, that they could not do so. It was in those circumstances that no thought was given in the other place to the Affirmative Resolution procedure, which perhaps bears out the value of your Lordships' House in these matters. Certainly I am more than content to take the noble Lord's word that he will consider the matter and possibly come back at a later stage with something which would be helpful. In those circumstances, I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ Clause 6 agreed to.
§ Clauses 7 to 10 agreed to.
§ Clause 11 [Reference of recognition issue to Service]:
§ 5.45 p.m.
Lord DRUMALBYN moved Amendment No. 5:
Page 8, line 40, leave out ("an independent trade union") and insert ("one or more independent trade unions").
§ The noble Lord said: It may be for the convenience of your Lordships if I move Amendment No. 5 and at the same time speak to Amendments Nos. 7 and 8. These Amendments deal with trade union recognition. I suppose there are few more contentious subjects than trade union recognition; therefore it behoves us to get the provisions as nearly right as possible. I am afraid I shall have to go into a little detail if I am to make clear what I am driving at, and I hope what I am driving at will then be apparent to your Lordships. I am moving this Amendment to obtain clarification of the Government's intention in Clauses 11 to 16. We are dealing with applications for recognition. I presume that an independent trade union can make an application for recognition in at least three sets of circumstances. I take those that seem to me to be outstanding: first, where no independent trade union is at present recognised for the purpose of collective bargaining in respect of the employees whom the trade union making the application is seeking to represent in collective bargaining; secondly, where the employer already recognises another independent trade union in respect of all the employees the subject of the application; thirdly, 72 where the employer already recognises another independent trade union in respect of some employees, whether or not the employer recognises the trade union making the application in respect of other employees, not the ones the subject of the application.
§ Whenever under the Bill an application is made to ACAS the Service has to consult all the parties who in the opinion of the Service will be affected by the recommendation which it will ultimately make. Clearly it will consult the employer and any other independent union which is already recognised in respect of any of the employees covered by the application. Perhaps I might ask in passing whether the parties interested would also include professional organisations where that situation arose, not necessarily independent trade unions. The Bill talks about consultation with all the parties which the Government define. Clearly, as this is an independent organisation, it would be left to the Service to decide whom to consult. I think it is right that the Committee should know whom the Government intend should be consulted in a case of this kind.
Once an application has been made it then becomes a reference—as it is called in the Bill. But as the Bill is drafted, if one trade union makes a reference, though other trade unions may be consulted they are not parties to the reference—at least the Bill does not say so. Clause 12(3)(b) mentions—
the trade union or unions which made the reference …".
I see no provision for more than one trade union joining in making a reference, though under Clause 13 more than one can apply for variation or revocation of a recommendation. But Clause 12 provides that,
the trade union or unions which made the reference may … withdraw the reference…
and any union which withdraws cannot be recommended for recognition. That prompts one to ask whether Clause 11 should not make clear that more than one trade union may join in a reference. If not, is the Service empowered to join other trade unions in the reference?
As the Bill makes clear what is here involved is a recognition issue; that is, what is referred by an application to the Service, "referred" being a technical term here,
and that, in other words, is the subject of the reference. Clause 11(3) says that a
… 'recognition issue' means an issue arising from a request by a trade union for recognition by an employer, or two or more associated employers …".
Surely, if the trade union or unions which made the reference can withdraw the reference, then Clause 11 should make it clear that one or more trade unions can together make application, and that is the purpose of Amendment No. 5.
§ Amendment No. 7 deals with the situation where separate applications are made in respect of the same recognition issue, which might easily happen. In that case it would clearly be appropriate that the separate applications should be treated as one reference because they relate to the same recognition issue. But what if there is more than one application? I submit that the words in Clause 12(3)(b) about unions withdrawing from the reference are not appropriate if there is more than one application and, therefore, more than one reference, even if the references relate to one recognition issue. I suggest that the difficulty could be overcome by Amendment No. 7, which would specifically enable the Service to treat different references about the same recognition issue as one reference.
§ Amendment No. 8 deals with the case where an independent trade union is already recognised in respect of some or all of the employees concerned in the reference. It is possible that while the reference is under consideration by the Service, the independent trade union already recognised might think fit to withdraw from the reference. To meet that eventuality, I suggest that the independent trade union already recognised ought to be deemed to be a party to the reference. Even though it seems unlikely that such a trade union would wish to withdraw, the eventuality should be provided for, and that is what Amendment No. 8 does.
§ Since the recommendation which the Service will ultimately make on the recognition issue is to be operative—that is, binding on the employer, as I understand it—it is important that it should be absolutely clear who are to be the parties to the reference. That, of course, is not the same think as the question: which employees are to take part in the ballot, if there is a ballot; whether it 74 is those in respect of whom recognition is sought or others who are considered by the Service to be affected by the recognition issue? But we shall come to that in Clause 14. These are the purposes of these three Amendments and I shall be grateful to the noble Lord if he can untangle the issue.
§ Lord JACQUES
I will first deal with a very pleasant subject. Dinner will be available tonight and it is proposed to adjourn at 7.30 p.m. for that purpose until 8 o'clock. I have had consultations with the Opposition Whips.
I am appreciative of the hopeful spirit behind the Amendments moved by the noble Lord, Lord Drumalbyn, and of course I accept their objective as most desirable. I oppose them only because I do not think they are necessary. I am advised that the provision for an independent trade union to refer a recognition issue to the Service can be interpreted as a provision for one or more independent trade unions to refer such an issue. That I think fairly settles that. I turn to the proposed new subsection (4), and I think that in practice the Service would usually treat references relating to the same workers, or overlapping to some extent, as part of the same problem and would take account of one application in dealing with the other. I think they could hardly do otherwise. It should also be noted that in Clause 12(1) the Service is required to consult all parties whom it considers to be affected by the outcome of any reference. It will therefore in practice be obliged to consult one applicant about the application by the other.
This brings me to the point raised by the noble Lord about professional associations. Whether or not professional associations would be consulted would depend on whether the Service was of the opinion that they would be affected by the outcome. If the Service thought they would be so affected, then the Service would be required to consult with them. I think also that the requirement of the Amendment is a little rigid. Supposing one union had made an application and the Service had completed its inquiries and was; about to report? The Amendment would mean that another union, then deciding to stake a claim for the same workers, could require the report to be deferred until both issues had been examined. I cannot deny that 75 that might be desirable, but I think it should be left to the discretion of the Service as to whether or not it is desirable in particular circumstances. Also, to what extent must there be an overlap between the two applications? The Amendment would require one report, however few the workers covered by both applications. There is nothing to prevent the Service, as the Bill is drafted, from combining two issues in one report or issuing two reports simultaneously, and the Government would prefer this point to be left just there.
The third Amendment would deem a recognised union to be a party to a reference by another seeking to be recognised for the same workers. Already, by the operation of Clause 12(1), the recognised union would have to be consulted. There seems no particular point in making it a party formulae, since the Service has discretion whether to make any recommendation at all and the position of an already recognised union would inevitably be dealt with in the report Certain consequences may follow arising from Clauses 13, 15 and 16 from a recommendation for recognition, and already a recognised union does not need to make use of those clauses since it already has what they would help it to obtain. I therefore feel that the Bill covers the issues which the noble Lord, Lord Drumalbyn, has in mind, but probably more straightforwardly, and I hope that, with this explanation, he will withdraw the Amendment.
§ Lord DRUMALBYN
I am much obliged to the noble Lord for making the position clear, and it will be useful to have what he said on the Record. I entirely take the point he made in regard to professional organisations, and at any rate it will be satisfactory to these professional organisations to know that they can be consulted under the Bill if the Service considers that their members are affected. I am much obliged to the noble Lord and I beg leave to withdraw the Amendment.
§ Amendment, by leave, withdrawn.
§ 6.0 p.m.
Baroness SEEAR moved Amendment No. 6:
Page 8, line 41, after ("union") insert ("or an employer").
§ The noble Baroness said: In moving that we should include the words "or an employer" in the clause, I hope the Committee will consider the Amendment very favourably. At first sight, a recognition dispute is primarily a matter which can be seen to concern trade unions and one might think that it is only trade unions which need the services of ACAS in order to establish their rights and, therefore, that it is for them alone to make an application to ACAS. It is, however, by no means true that employers and employers' interests remain unaffected by recognition issues of one kind or another.
§ There are at least two sets of circumstances in which an employer could legitimately desire the help of ACAS in matters of this kind. In most circumstances where recognition is in question, a union unable to obtain it from the employer is likely to refer the case to ACAS, but there can be envisaged a circumstance in which a union would not wish to refer the case to ACAS, believing that, by taking some other type of action, it might be able more successfully and swiftly to get the result it wanted. That is one set of circumstances in which the employer would have a direct interest in bringing ACAS into a question of recognition.
§ The second case is where there are different unions in dispute over a matter of recognition. It is quite plain that employers' interests and the interests of an organisation can be very much disturbed by continuing disputes between unions on the question of recognition. It seems reasonable that where a difference of this kind is going on an employer should be able to refer to ACAS for assistance in sorting out the matter.
§ It may be thought that there are other clauses in the Bill which might enable an employer to get the kind of help he requires. If that is so, it still does not mean that it would not be useful to have the term "employer" included in the clause. It has been said—justly or unjustly—that on the whole the interest that is dominant in the Bill is that of the trade union. I cannot see that it can really do any harm whatsoever to include the right of the employer to refer recognition disputes to ACAS. It could do good. It can do no harm and it would certainly go some way to giving employers the feeling that, in this part of the Bill 77 which is so greatly concerned with industrial relations, issues of concern to employers as well as issues of concern to unions are very much in the Government's mind. I beg to move.
The Earl of GOWRIE
It happens that my noble friends and I wished to put down an Amendment on this point which was so much in the same phrasing and so close to the spirit and detail of the noble Baroness's Amendment that when we saw that she had got in first we were very happy simply to support her. We feel, as I argued in the debates on Clauses 1 and 4, that there is a bias of emphasis and aim in the Bill which will be counter-productive, where ACAS is concerned, to the spirit of arbitration, advice and conciliation which that body is supposed to continue to pursue. We feel that, as at present drafted, this provision is extremely poisonous and that the noble Baroness has eloquently argued against it. We believe that the Bill is one-sided and, that while it is sometimes argued where the rights of individuals are concerned, minimum provisions are necessary to redress the balance between employer and employee—and I believe that that was a Manifesto commitment of noble Lords opposite—and while that argument may have some force, the present issue is quite different.
In the Bill as it stands we are engaged in setting up an elaborate organisation—the Advisory, Conciliation and Arbitration Service—which is directed by a council mainly representing trade unions and employees to help improve industrial relations and to resolve disputes sensibly without recourse to industrial action. One of its duties will be to help resolve recognition disputes and a special procedure is to be introduced to deal with such disputes. Yet, we contend, with the noble Baroness, that only one party to such disputes is allowed direct access to the recognition procedure. This seems to be quite wrong and against the spirit of ACAS, so we seek to support the Amendment.
§ Lord WIGG
I am extremely puzzled. The Amendment would make the provision read:A recognition issue may be referred by an independent trade union or an employer to the Service …".If one looks—as I have no doubt have those who have already spoken—at 78 Section 30 of the Trade Union and Labour Relations Act, there is a definition of an independent trade union. It means a trade union which,is not under the domination or control of an employer or a group of employers or of one or more employers' associations …".What sort of independent trade union will it be and how is it to be regarded in the light of that definition if an employer is to come along and make a claim that the trade union which he wants is independent? Quite clearly, the fact that, in a particular field, an independent trade union by that definition is going to operate means that it has not been a very fruitful field in which trade unions in the accepted sense of the word have been operating. In other words, the pirates are coming in and, in this particular case, a pirate of the choice of the employer is to be put forward as the organisation which should represent the workers and should have the recognition. That seems to me to cut right across the meaning of "independent trade union", which, as I say, has already been defined in the Trade Unions and Labour Relations Act. So, from that point of view, I think it is barmy.
§ Baroness SEEAR
I believe that the noble Lord, Lord Wigg, has misunderstood what I was trying to say. Perhaps I did not make myself clear. I do not wish to repeat the whole of my previous speech and I do not know whether the noble Lord was not listening to it, but the point of what we are saying is that in recognition disputes there can be cases in which in a dispute between two unions—which can go on for a very long time—the employer's interest is very much at risk. The employer is not making a decision between the unions. He is not making a decision at all. This is simply saying that, in those circumstances, he wants ACAS to come in and he wants the matter to be referred to ACAS for it to sort the matter out. That is all. ACAS can of course promptly turn round and take whatever decision it likes. It is a matter of who has the right to refer. That is all we are talking about.
§ Lord BROWN
If the noble Lord, Lord Wigg, is trying to inform the Committee that there is no possibility of two recognised trade unions having a squabble over whose right it is to have certain employees as members or if he is 79 implying that these squabbles have not taken place in the past, I am afraid he is not as familiar with what goes on in industry as we have all supposed him to be. If an employer is in a situation where his factory is not at work because one of these squabbles is in process, it seems to me—and I shall be interested to hear what my noble friend on the Front Bench has to say—that there is some reason in this Amendment. Of course, we all know that since 1967 the trade unions have done a great deal to prevent inter-union squabbles of this sort and that they have diminished very substantially, but that does not altogether cut out the possibility that they may happen in the future.
§ Lord LEE of NEWTON
While at first sight this looks a reasonable Amendment, we are talking about recognition. I may be wrong but I have never yet come across a dispute in which a trade union was refusing to recognise an employer. It is always the other way round. Therefore, taking it from that angle, it is quite reasonable to say that the union concerned is charging the employer with failing to recognise and that, if one gave the same right to an employer, he would have to show that it was a union which was refusing to recognise him. I think that there could be scope somewhere in the Bill for an employer to approach the tribunal. But on this Amendment, in which comes the straight issue of recognition, I should think that an employer would have to prove that a union was refusing to recognise him. In the general situation, wherever there is more than one union—and we are envisaging here a number of unions—the straight answer which is generally provided in industry is that a works committee is formed within a particular factory.
§ Lord BROWN
I am sorry to interrupt the noble Lord, but he is omitting to read Clause 11(3) in which recognition is defined. It states… where recognition is already accorded to some extent, a request for further recognition.I was talking about further recognition.
§ Lord LEE of NEWTON
But it is still an issue, is it not, of the employer recognising a number of unions? I was going on to say that in my experience wherever there are a number of unions 80 within one factory—and this is presupposed here—there is in existence a works committee; or if there is not there jolly well ought to be! If there is not, then the trade union and employer are terribly amiss—
§ Baroness SEEAR
I hesitate to interrupt the noble Lord, but he is talking in the context of industries which are very well organised. But there are a great many industries—particularly those which are becoming newly organised in the white collar sector—in which there is no such thing as an organised works committee. Some industries have advanced to a more sophisticated stage. But we must remember that there are still more people unorganised than there are organised in the working population as a whole. It is in the circumstances of the millions who arc struggling from total non-organisation to a degree of organisation where the kind of institutions to which the noble Lord has referred simply do not exist and in which the disputes of the kind we have been talking about may well arise; and where there is prolonged arguments between different unions as to whether it is union A or union B which ought to be recognised for purposes of negotiation. That can cause a great deal of turmoil and loss in a business. It is in these circumstances that we are arguing that the employer should have a right—
§ Lord LEE of NEWTON
The noble Baroness is rather confusing her own case. She is now talking about the large number of people who are not organised at all, in which respect there would be no claim by the union for recognition because those people are not in the union. I should have thought that what we are discussing is the situation where there are a number of unions, some of which are recognised and at least one of which is not. That seems to me to be the issue. The noble Baroness spoke about the degrees of organisation. I should have thought that in these days we are now approaching the point where the recognition issue is as between the employer and a works committee. Indeed a proper works committee contains employers as well as trade unions. It therefore seems to me that under this clause one can hardly widen the matter unless one could find a straight issue of where a trade union is refusing point blank to recognise an employer.
§ Lord COOPER of STOCKTON HEATH
There has been a misunderstanding here in regard to the Amendment. It is asking that the employers should be included, and that would be because of the possibility of an industrial dispute and the union concerned not going to the Service for recognition. On the face of it, that seems very laudable indeed. But I see a very serious snag. It means that we should be compelling the union case to go to the Service although the union does not want to go. This is the snag. It involves a very important principle and it would present a difficulty, although on the face of it it seems reasonable. I have had the experience of where, owing to union difficulty, we have had serious disputes. But if the power is placed in the hands of the employer by reference—to be able, if you like, to compel the union to go—it will not get the Service anywhere. The first thing needed is for the unions to go voluntarily. This is the principle in the Bill. Bringing in the employer as a person who can introduce the problem would restrict union activity.
§ Lord WIGG
I should like to assure the noble Lord, Lord Brown, that I do not pose as an authority on trade union law or anything to do with it. What I have tried to do—and I commend this to the noble Lord—is to try to understand what it is all about. I still make the claim, and perhaps I have been more successful than he has, for the simple reason that I am not even concerning myself with what has happened in the past. I am concerned with what is in the Bill and what has happened in the Trade Union and Labour Relations Act. The noble Baroness may be entirely right, but let us look to see what she is doing. Under a section which deals with trade union recognition it says that a recognition issue—and the next subsection defines what is meant by a "recognition issue"—may be referred by an independent trade union.
What the noble Baroness wants to do is this. She says that there may be a case where there are employers who are concerned about this issue. Therefore she wants the Bill to contain a provision that if an employer wants to raise the question of the recognition of a trade union he should be free to do so. If 82 that is what she wants, why does she not put down a new clause? That would make sense. But to try to link in Clause 11 a trade union or an employer seems to me to embarrass the independent trade union which the particular employer is trying to push. That is to say, an employer is a little concerned about the possible organisation of trade unionism and so he goes round and finds some well-meaning people—there are plenty on the Conservative Benches; they have a trade union committee, I understand—and they would start to organise a little union. Of course the employer wants to get in before the Transport and General Workers' Union, or the NUM, or some other union. Therefore he will make a claim on behalf of that union.
I am trying to point out to the noble Baroness and to the Front Bench opposite that in terms of Section 30 of the Trade Union and Labour Relations Act the employer would be calling into question the independence, because the Act specifically lays down that an independent trade union means a trade union which is not under "domination or control" and it goes on later to refer to not being under any influence whatsoever. Therefore, for an employer to come along and sponsor an independent trade union is the kiss of death in terms of Section 30 of the Trade Union and Labour Relations Act. On the other hand, if the noble Baroness and her Conservative friends want to do this, then it is quite simple to do. But they should not do it here. They should put down a new clause.
§ Lord JACQUES
I appreciate the importance which those who are behind this Amendment give to it. Therefore I shall summarise the Government's case very briefly and then spell it out in some detail. First, I shall deal with the summary. Clauses 11 and 12 are designed to deal with the straightforward issue of an employer's refusal to grant recognition to a trade union or unions. But where an employer is not refusing recognition, but wishes the Service to examine another kind of recognition question—for example, when there is an inter-union dispute about recognition—he can seek the assistance of the Service more appropriately under Clause 2, "Conciliation", Clause 4, "Advice", or Clause 5, "Inquiry".
83 There is there plenty of scope for the employer in which to appeal for the assistance of the Service, rather than confuse the issue with the specialist approach of the trade union on an entirely different issue. It has been suggested that the provisions in the Bill as to the recognition of trade unions are one-sided as between employers and trade unions and that this is unfair. This argument assumes that it would be fair if the same provisions applied to issues raised by employers and to issues raised by unions, but it would be valid only if the employers and the unions each stood in the same position as regards recognition. Of course, this is not so. The trade union is always the applicant for recognition and the employer is always the respondent.
It is a distortion to suggest that it would be fair and even-handed if both had the same right to raise recognition issues. In effect the Bill provides a trade union with a right of appeal against a decision by an employer. That is the purpose of the clauses that we are considering. It is the right of appeal by the trade union against the decision of the employer not to recognise. The requirements of employers for the assistance of the Service are different from those of the trade unions. A trade union will wish to invoke the Service if its request for recognition is refused by the employer; but where an employer needs help it will usually be in the rather special circumstances where he is willing to grant recognition but where there is disagreement between two or more unions which makes it difficult for him to recognise one, for the reason that this would bring him into conflict with another.
Where the trade unions are affiliated to the TUC, machinery already exists to deal with the problems of inter-union disputes. That is the procedure provided under the Bridlington and Croydon resolutions under which the matter is considered by a special trade union committee. Therefore, the employer is in difficulties only where the TUC procedure does not apply because one or both of the unions are not affiliated, or where, for one reason or another, the TUC procedure has failed to produce a settlement. This has only to be spelled out to make it obvious that the kind of recognition issue which the employer is 84 likely to want to refer to the Service is of the greatest delicacy and difficulty. It is not one for which the provisions of Clauses 11 to 16 are likely to be appropriate.
It is for this reason that the Government oppose the over-simple proposal that employers should be able to refer recognition disputes to the Service under Clause 11. But that is not to say that employers should not be able to refer recognition issues to the Service; of course they should. Their mode of approach is by means of invoking the assistance of the Service under Clause 2, which enables the Service to conciliate; under Clause 4, which enables the Service to advise employers or unions; or under Clause 5 which enables the Service to inquire into the matter and in certain circumstances to publish a report.
The essential difference is that Clause 11 and the following clauses have to be rather rigid and inflexible: "the Service shall examine the issue, shall make inquiries, shall prepare a written report" and so on; whereas in these particularly difficult cases the Service should be left to decide how it will proceed, having regard to all the special circumstances and bearing in mind its general duty to promote and improve industrial relations. It will want to take account of progress being made in the TUC procedure where that is appropriate, as nothing would be more harmful than to do anything which tended to discredit or sidetrack those arrangements which have avoided or resolved many serious disputes in the past.
If employers are wise, they will accept that the questions they want to raise will need very careful handling if they are to be resolved without an explosion, and will welcome the fact that the Service will have the maximum flexibility in the manner in which it employs its extensive range of powers if the Bill is not amended in the manner proposed, and if they approach the Service under the other provisions which I have mentioned.
§ Baroness SEEAR
The Minister has strengthened rather than weakened the force of my argument. Of course, there will be many instances in which employers will be wise to apply under Clauses 2 or 5, but there are also other instances in which it is precisely the 85 obligation on the ACAS to make a detailed report that will be needed. In these circumstances, in view of the Minister's reply, I fear I have no option but to divide the committee.
§ Resolved in the affirmative, and Amendment agreed to accordingly.
§ 6.33 p.m.
§ On Question, Whether Clause 11, as amended, shall stand part of the Bill?
§ Lord WIGG
I must now say a word about this clause as it now stands. Let me read the words:A recognition issue may be referred by an independent trade union or an employer to the Service.I never expected any political wisdom from that bunch of Poujardists who masquerade under the title of the Liberal
§ 6.25 p.m.
§ On Question, Whether the said Amendment (No. 6) shall be agreed to?
§ Their Lordships divided: Contents, 75; Not-Contents, 41.85
|Aberdare, L.||Foot, L.||Pender, L.|
|Amherst of Hackney, L.||Fraser of Kilmorack, L.||Platt, L.|
|Armstrong, L.||Goschen, V.||Rankeillour, L.|
|Auckland, L.||Gowrie, E.||Redesdale, L.|
|Balerno, L.||Grenfell, L.||Ridley, V.|
|Barnby, L.||Hailsham of Saint Marylebone, L.||Robson of Kiddington, B. [Teller.]|
|Beaumont of Whitley, L.|
|Belstead, L.||Hawke, L.||St. Aldwyn, E.|
|Berkeley, B.||Kemsley, V.||St. Davids, V.|
|Boyd of Merton, V.||Killearn, L.||Sandys, L.|
|Broadbridge, L.||Kimberley, E.||Seear, B. [Teller.]|
|Brooke of Cumnor, L.||Kinnoull, E.||Selkirk, E.|
|Brooke of Ystradfellte, B.||Lauderdale, E.||Selsdon, L.|
|Byers, L.||Lloyd of Kilgerran, L.||Stanley of Alderley, L.|
|Campbell of Croy, L.||Long, V.||Strathclyde, L.|
|Carrington, L.||Loudoun, C.||Strathcona and Mount Royal, L.|
|Cathcart, E.||Macpherson of Drumochter, L.|
|Cork and Orrery, E.||Malmesbury, E.||Strathspey, L.|
|Cowley, E.||Mancroft, L.||Terrington, L.|
|Crathorne, L.||Mansfield, E.||Vickers, B.|
|Cullen of Ashbourne, L.||Mersey, V.||Wakefield of Kendal, L.|
|Denham, L.||Monck, V.||Waldegrave, E.|
|Drumalbyn, L.||Monson, L.||Ward of North Tyneside, B.|
|Ebbisham, L.||Mowbray and Stourton, L.||Wigoder, L.|
|Emmet of Amberley, L.||Northchurch, B.||Wolverton, L.|
|Falkland, V.||Onslow, E.||Young, B.|
|Balogh, L.||Gaitskell, B.||Pitt of Hampstead, L.|
|Bernstein, L.||Hale, L.||Popplewell, L.|
|Birk, B.||Harris of Greenwich, L.||Ritchie-Calder, L.|
|Blyton, L.||Henderson, L.||Roberthall, L.|
|Brockway, L.||Hughes, L.||Segal, L.|
|Brown, L.||Jacques, L.||Shepherd, L. (Lord Privy Seal).|
|Champion, L.||Leatherland, L.||Shinwell, L.|
|Collison, L.||Lee of Newton, L.||Stedman, B.|
|Cooper of Stockton Heath, L.||Llewelyn-Davies of Hastoe, B.||Stewart of Alvechurch, B.|
|Crook, L.||Lovell-Davis, L. [Teller.]||Strabolgi, L. [Teller.]|
|Crowther-Hunt, L.||Maelor, L.||Taylor of Mansfield, L.|
|Cudlipp, L.||Melchett, L.||Wallace of Coslany, L.|
|Fisher of Camden, L.||Pannell, L.||Wigg, L.|
|Fulton, L.||Peddie, L.|
§ Party; they are irresponsible beyond hope. The Conservative Party I suppose could be claimed to be five years away from being the Government of the country. Any group of men, claiming to have a sense of responsibility, which goes into the Lobbies on an issue of the kind that we have just decided, proclaims that it is utterly unfit to govern this country. Those involved learn nothing and they forget nothing—1926, the 'thirties, their own Industrial Relations Act. They have not learned the simplest thing about the delicacy of industrial relations in this country. This is a piece of pure wrecking nonsense.87
§ The Liberal Party do not recognise that, they do not know that. I am sure they put this forward—poor innocents—with the best of intentions. The way to Hell is paved with good intentions! The noble Earl, Lord Mansfield, knows the Amendment to be a piece of irresponsible nonsense. If it were going to remain in the Bill when enacted, in the most delicate field of industrial relations, it would make the situation even more difficult than it now is. The Liberals do not know any better on this or any other subject. But for the noble Earl, Lord Mansfield, and a number of Members on the other side who have been Members of the Government, such as the noble Lord, Lord Crathorne, to go into a Lobby to vote for those words is to proclaim to the trade union movement of this country that the Party opposite have not learned a single thing. All that they have done in the past they will do again. And for what purpose? They know just as well as I do that when this Bill goes back to another place those words will be taken out, because otherwise the Bill will be completely unworkable.
§ The idea that a group of employees is going to come forward on the recognition issue, and that a trade union is going to deny it, is so preposterous that you would not think that adolescents would pay any attention to it. I have said earlier that I think this measure is the most important one to come before either House since the end of the war. The industrial relations problems have to be solved; we have to succeed or we are sunk. This Amendment has been put down in a lighthearted way although I do not think the Liberal Party are lighthearted, but I do not pay any attention to that. However, the fact that the Conservative Party, who claim to be responsible, should be a party to this particular piece of nonsense makes me sick.
§ Lord DRUMALBYN
I think the noble Lord gets sick a little too easily. We have been told that it is perfectly possible under Clause 2, Clause 4 and Clause 5, for the employer to make application on a recognition issue. The only question is which is the best clause to use for the purpose. We have also been told that if application is made 88 under Clause 11, all the parties concerned will be consulted on the recognition issue. The really cogent point was made by the noble Baroness, Lady Seear, when she said that you can be certain that if this clause is used, there will be a full inquiry and a report thereupon. This is what we voted on.
§ Lord WIGG
Forgive me for saying this, but it is nothing of the kind. The Minister in reply made it clear that this was a delicate area in the Bill; the most delicate area in the Bill was the question of recognition. We know that, and the noble Lord who has just spoken knows it to be true. This is the point where you whisper lest you start the avalanche. I am not concerned about the noble Baroness; she is an innocent. I am talking about the Conservative Front Bench and the noble Lord—
§ Lord WIGG
I will give way in a moment. The noble Lord knows perfectly well that the Minister said that all the noble Baroness wanted existed in Clause 2; yet the Conservative Party persist in putting more words into the most delicate part of the Bill. The Minister has told them this is so. What is their purpose? No harm will be done, but the noble Lord has demonstrated once again the ham-fisted way in which the Conservative Party approaches industrial relations. That is all I want to underline.
§ Clause 11, as amended, agreed to.
§ Lord JACQUES
I beg to move that the House do now resume in order that my noble friend may make a Statement on Northern Ireland.
§ Moved accordingly and, on Question, Motion agreed to.
§ House resumed.