TRADE UNION AND LABOUR RELATIONS (AMENDMENT) BILL

HL Deb 10 February 1976 vol 368 cc9-22

3.0 p.m.

The LORD PRIVY SEAL (Lord Shepherd)

My Lords, we have before us today two Motions which I suggest we can conveniently consider together. The first is that the Trade Union and Labour Relations (Amendment) Bill be read a second time. The second is that we consider the Amendments suggested by another place, pursuant to the Parliament Acts 1911 and 1949, for insertion in the Bill at a later stage if your Lordships so agree.

It is, I suggest, misleading to talk in terms of giving this Bill a Second Reading. We have considered it, and its contents, in the last Session. The Amendment suggested in another place is also familiar—and indeed was first proposed in this House. I do not propose to go through the clauses of the Bill as is customary at Second Reading, for the Bill before us today is substantially the same as that sent to us from another place almost exactly a year ago—except that it contains an improvement to Clause 2(4) made during Committee proceedings in this House. That apart, only the dates in Clause 3 have been changed.

This House has, of course, considered the Bill in exhaustive detail before. Noble Lords did not insist on their Amendments on the last occasion when we considered the Commons Message, except in regard to the Press provisions. We now find ourselves in the position of considering a Bill that has been reintroduced in accordance with the Parliament Acts of 1911 and 1949, because this House has disagreed a small part of a clause, about the freedom of the Press, which was not part of the original Bill, and which was substantially the same as the clause at first accepted in Committee by noble Lords without a Division, though it is true that this was amended on Report. This unique situation also involves unique procedures, which I should like to describe to noble Lords.

This House, quite properly and within its rights, on the freedom of the Press reasserted its views in the last Session on a clause which quite rightly is regarded as critically important, and on which its views were at variance with those held—equally strongly—in another place. Noble Lords have exercised this prerogative on very few occasions, and not at all since the 1949 Act amended the original Parliament Act and reduced the time for which this House could delay a Bill. It has also been accepted by noble Lords opposite that this House should use its powers of last resort sparingly—though in saying that I do not, of course, imply that the powers should not be used at all.

Since this Bill failed to obtain agreement and Royal Assent so, in accordance with the Parliament Acts, it has had to be reintroduced in a second Session, in substantially the same form in which it first came to us. We have no powers now to impose Amendments to the Bill which are not acceptable in another place. We have no powers to delay the passage of the Bill beyond the end of this present Session, whatever we may propose. That is the stark reality against which we carry out the normal consideration of the Bill itself.

As regards the second Motion before us today, on no previous occasion has this House had to consider Amendments suggested by another place for addition to a Bill which has been reintroduced in a second Session under the Parliament Acts. Section 2(4) of the 1911 Act provides for this safety valve, which can enable Parliament to make agreed changes to a Bill without impeding its progress towards Royal Assent under the Parliament Acts. No suggested Amendments have previously been agreed to in another place on any of the Bills passed under the Parliament Acts. We have been sent, by another place, a suggested new clause providing for a charter on Press freedom. Noble Lords therefore have the opportunity finally to decide on this issue which previously so much concerned them, although the clause is in itself not part of the official Bill.

This House has a duty—I stress duty—under the Parliament Act 1911, to consider any suggested Amendments sent from another place. During our normal Second Reading debate on the Bill proper this afternoon, we may refer to these suggested Amendments which have been placed upon today's Order Paper so that noble Lords can consider as a whole the final form in which another place would wish the Bill to go forward for Royal Assent. When the Second Reading is over, I shall move "that the Commons suggested Amendments be now considered ", in pursuance of our duty under the Parliament Acts. Noble Lords will appreciate that, eventually, under the Parliamentary Act procedure, we may only agree or disagree to the Commons' suggested Amendments.

I shall not, however, be moving that we should agree the suggested Amendments at this stage. Instead, I suggest that we should proceed to a Committee stage with the intention of moving Amendments to the Bill in precisely the same form as the Commons suggested Amendments which arc on today's Order Paper. They may then be treated as normal Committee stage Amendments, and become part of the Bill under normal processes. Because noble Lords did not previously accept a Press clause in this form, it is proper that they should be able to give it further detailed consideration.

The Government very much hope that this Bill can be passed in the normal way with the agreement of this House, and including the clause on Press freedom suggested by another place. The procedure that I am proposing—that we should consider, but defer a final decision on, the Commons suggested Amendments today, and should instead deal with them as normal Committee stage Amendments —will enable noble Lords to pass this Bill normally if they wish, without, of course, prejudicing their powers to do otherwise. I hope that this procedure will be acceptable to your Lordships.

I should also say that a Motion to agree the Commons suggested Amendments can, if we wish to return to them in this form, be taken at any time, provided due notice is given, before the Bill goes for Royal Assent. We shall, therefore, have scope for seeing how the Bill progresses before taking final and binding decisions about Amendments in this form. If this Bill is given a Second Reading and we move into Committee, it is of course constitutionally open to noble Lords to table Amendments to any part of it, quite apart from the Amendments incorporating the suggestions from another place.

But I hope that noble Lords will bear in mind that we have exhaustively considered the issues in the Bill on a number of occasions; that the views of another place have consistently been reaffirmed, and with substantial majorities; and that, leaving the Press clause on one side for the moment, this House did, reluctantly perhaps but none the less clearly, accept the changes made by the Bill which has come back to us today. There have been over 120 hours of Parliamentary discussion on these issues, and another place have expressed their support for the Bill in this form in a score of votes. I hope that, in view of the evidence of continued support in another place for the provisions of this Bill in this form, we can consider that we have now fulfilled our task. There can be no doubt as to the Commons view.

The suggestions from another place which I should seek to introduce as Committee stage Amendments differ from the Bill proper in that their continued existence depends on the will of this House—I repeat, the will of this House. If noble Lords who have not supported the clause in this form nevertheless take the view that half a loaf is better than none, then there will be safeguards for Press freedom in this Bill. If, however, noble Lords are not prepared to accept Amendments in the form suggested, then there will be no safeguards for Press freedom of any kind in the Bill when it goes forward for Royal Assent. This particular decision is now for this House alone, and we should refresh our memories on what is at stake in Committee.

The suggested Amendments which we formally consider today, but which I hope we can consider more substantially in Committee, are Amendments for a new clause very much on the lines originally proposed by my noble friend Lord Houghton, with improvements and embellishments, made as a result of discussion in both Houses, with the support of both Houses. There are one or two drafting changes, and one more substantive change which provides for what would happen if Parliament rejected a charter on Press freedom proposed by the Secretary of State. The details of these minor changes are more appropriate to Committee proceedings than this debate. But the essential point is that the suggested new clause sent to us from another place for a final verdict is essentially that to which another place have given their support on three separate occasions.

At the behest of this House, they have re-examined the issues not twice but three times, without changing their minds on the basic issues or approach. On the most recent occasion, the Opposition in another place made their views very plain. They would have preferred to see changes in this clause, but that was not the will of the substantial majority in another place. But on the question whether or not the new clause in un-amended form should come forward to this House as a suggested Amendment to the Bill, there was no disagreement at all.

My Lords, both Houses of Parliament have already devoted a quite inordinate amount of time to this little three-clause, or, as I hope it will be, four-clause Bill. The options open to us on the way ahead are clear. The House may reject the Bill outright, today or at a later stage, and let the Parliament Acts be used forthwith. This would, of course, be perfectly constitutional action, but it would perhaps be at variance with our former acceptance of the provisions of the Bill. Perhaps I should make clear that if noble Lords rejected the Bill on Third Reading, they could still agree to the Commons suggestions, on which we shall have deferred final decisions, and they could be included in the final Bill. Noble Lords may seek to amend the Bill and to delay the inevitable passage towards Royal Assent by a few months. But it is overwhelmingly apparent that the scope for finding acceptable Amendments is, after such prolonged discussion, virtually nil.

However constitutionally legitimate such an approach might be, I think that in practice Amendments to the Bill which this House has already accepted once before, and has been so much debated, would be highly questionable. Moreover, this action and consequent delays could only be seen both in another place and by those outside who are directly concerned as wilful procrastination. I should make clear that the Government may not find time in another place for further consideration of Amendments to this Bill, which has already been subject to such detailed scrutiny.

On the suggested Amendments providing for a charter on the freedom of the Press the options are equally clear. We can accept the thrice-affirmed view of another place, and pass the suggested new clause into the Bill as normal Amendments. Alternatively, noble Lords can reject them and refuse to have them added to the Bill by any means. That is the prerogative of this House. But if we do that, people will wonder what all the fuss has been about. The Bill has been delayed because this House wished to insert in it safeguards for Press freedom; yet at the end of the day it would go forward for Royal Assent, and by the will of this House would do so without a single provision relating to Press freedom in it. That would not be an entirely defensible position.

I must mention, but without enthusiasm, that noble Lords could start again on the roundabout of seeking to amend the suggested new clause providing for a charter on Press freedom. I have much more enthusiasm for the view expressed by the noble Lord, Lord Carrington, and by the noble Lord, Lord Goodman, on the last occasion when we considered this clause; namely, that the powers which we may exercise in relaying are designed to enable us to encourage another place to have second thoughts and to enable this House to demonstrate its views on the Bill, rather than to hold things up merely for the sake of it. Those in another place have, at our behest, had second, third and fourth thoughts. It must surely now be apparent, from our proceedings last autumn and from the progress so far of this reintroduced Bill, that it is this version of the clause that is wanted by another place. In the last resort, they might prefer a Bill with no clause on Press freedom. I would very much regret that. I hope that the Bill proper will be given a Second Reading, and that we can proceed as quickly as possible through further stages towards the passage of a Bill agreed in the normal way by both Houses.

The procedure prescribed by the Parliament Act 1911 imposes certain rigidities and limitations. The Act was clearly drafted on the assumption that this House would continue to oppose any Bill which it had previously rejected. The Government would much prefer that the Bill should find its way on to the Statute Book as a Bill agreed between this House and another place. It is still my hope that noble Lords will in fact pass this Bill once again, in the normal way, under the normal, well-tried procedures, without delay and without need to obtain Royal Assent under the Parliament Acts.

Throughout my speech I have referred repeatedly to "we" and "our" in the sense that this House is a corporate body. Perhaps, as Leader of the House, I might express a personal view. I have acknowledged today, as I have done in the past, that this House has certain constitutional powers of delay which were confirmed in the Parliament Act 1949—incidentally, a Labour Government Act of Parliament —and the proposals of a more modified form of delay in the Labour Government proposals in the reform of the House of Lords in 1967. Such delaying powers are there to be used, as I have occasionally been reminded before by the noble and learned Lord, Lord Hailsham. But such powers are powers of last resort. In considering those powers and their possible use the House needs to balance the issue that is involved and the undoubted repercussions on Parliament as a whole.

Many see the essential purpose of a bicameral system of Parliament as being a check upon the Executive and on the possible actions of one of the Houses of Parliament, and for us a check upon the House of Commons. That may be so, though there may be some who think that the only credible check your Lordships may have is on a Labour Government and a Labour majority in the House of Commons. But I would suggest that a two-chamber Parliament, especially as we have it in this country, where we have Chambers which are so different in composition, authority and experience, has a much more constructive approach. I see the contribution of the British Parliament, with these two Chambers, to our democratic society as one of cooperation and the sharing of knowledge and experience in a positive way to solve the critical problems that confront the nation. I applaud the increasing co-operation between the two Houses and I am convinced that we are only at the formative stage of that co-operation.

An essential element of co-operation must be the recognition that the Commons authority rests on the votes of the electorate and this must mean that this House, without a popular mandate, must accede to the decisions of the Commons. The Parliament Acts recognise that position and I do not believe that anyone would challenge it. But what counts in co-operation is the spirit of understanding that exists between the two Houses and their Members. To exercise our powers to the full will undoubtedly create a confrontation, and lead to hostility between Parliamentarians for generations.

The harm that could arise at worst would be irreparable, and at least certainly more than could possibly arise from the passing of the Bill to which we, as a House, have already agreed. I think this is recognised and I would be very surprised if this House, with all its political experience, would act in such a way as to create that confrontation, except on an issue of supreme national importance.

It may be argued that to send this Bill back again to the Commons, if only for one further effort to get agreement, would not just be exercising our undoubted constitutional rights on what, for this Session, is a new Bill, but that this would not create difficulties between the two Houses. I beg to differ. This is a small Bill consisting of three clauses. The issues have been debated exhaustively. The issues are in themselves narrow and have been subject to countless Divisions in another place. There can be no question as to what are the views of the majority in the House of Commons. No new issue can be foreseen. I suggest that any Amendment could only be a new draft on issues that have already been more than adequately considered. I know that your Lordships regard the conscience clause as of supreme importance. There have already been 11 different drafts on this matter. Time is a vital factor in the House of Commons.

Parliamentarians in both Houses know that it is a traditional tactic of Oppositions to delay proceedings to seek the restrictions of time as a way of embarrassing the Government of the day. To send Amendments that have already been considered three or four times back again, could well be seen as the way in which some noble Lords might be wishing to add to the frustrations of the Government in the House of Commons. Time is recognised by all to be inadequate for the proper consideration of national affairs and for the future legislation which the House of Commons will be asked to deal with. To impose yet further demands on valuable and precious time for consideration of issues which, as I have said, have been considered time and time again can only create frustration and resentment and harm our relations. If 1 thought there was anything new; something that might be acceptable to bridge the gap between the two Houses, I would be the first to try. I do not believe that is now possible.

I beg the House to consider with great care their attitude to this Bill. Sooner or later under the Parliament Act this Bill will receive the Royal Assent. I hope, therefore, that in the long-term interests of future co-operation between this House and another place we will now decide that we have done all that we can and that we will now let the Bill go through to the Statute Book without any further delay, thus avoiding unnecessary inconvenience in the use of valuable time in the Commons on issues exhaustively considered and voted upon. The House has already made its views patently clear and earns no disrespect for that. So far, common sense has prevailed. There is no constitutional crisis, and the two Houses are not at war. As Leader of the House, I ask the House to help me to seek, and continue to seek, ways of avoiding confrontation. I hope that we may continue to tread the path of common sense and responsibility in accepting the considered judgment of another place without delay, and without empty gestures of martyrdom or heroic last stands.

For myself, agreeing the Bill would not be capitulation, nor a defeat. We shall have exercised our powers, perhaps overlong, hut in the end wisely and sensibly. We have other important work to proceed to, where our suggestions can and will, of course, have concrete benefits in influencing the final outcome—always provided that we exercise our power with discretion and on occasions where there is real merit in doing so. I beg to move.

Moved, That the Bill be now read 2^a.—(Lord Shepherd.)

3.28 p.m.

Lord ABERDARE

My Lords, the noble Lord, Lord Shepherd, has made a very important speech on this matter and one which we shall need to consider with great care in reaching conclusions as to what we are to do about the Bill. We return once again to consideration of the Bill and this time—as the noble Lord has made plain—under the shadow of the Parliament Acts of 1911 and 1949. We fought strenuously against this Bill throughout the last Session and against some of the provisions of its sister Act, the Employment Protection Act. In both cases, we were fighting, as we saw it, for the rights of the individual and, specifically, for the rights of the individual worker against the power of the boss, whether it be his union boss or his employer.

Although the noble Lord, Lord Shepherd, did not, for understandable reasons, want again to rehearse some of the underlying grounds upon which we oppose the Bill, I feel that it is necessary, in considering the Bill again, once more to bring to light some of the objections which we feel to be fundamental. I should not wish to detain your Lordships very long, but I believe that we must look at the merits of the Bill and trace some of its previous history.

For my purposes I remind your Lordships of what was contained in the Donovan Report. The Report did not reject the closed shop. Nevertheless, it recognised—and I quote: … the closed shop as it operates at present is not always in the best interests either of workers or of the community as a whole. It is liable from time to time to cause substantial injustice to individuals from which they have no effective means of redress. In particular, it drew attention to interference with the freedom of the individual: where workers have conscientious reasons for not belonging to trade unions. It proposed that an individual should have a final right of appeal to a new and independent review body, and it is precisely that which we have been fighting for in the course of the Bill.

The then Labour Government failed to implement the Donovan Report, and it was left to the Conservative Government of 1970 to bring forward our much maligned Industrial Relations Act 1971. That Act sought to substitute the concept of an agency shop agreement for the concept of the closed shop and contained specific provisions to guarantee the rights of an individual employee against unfair exclusion or expulsion from a union and against unfair dismissal by an employer. However, the present Government repealed that Act and put in its place the Trade Union and Labour Relations Act 1974. Thanks to their slender majority at the time, that Act, although it brought back the concept of the closed shop, contained in Section 5 certain rights of workers against arbitrary or unreasonable exclusion or expulsion from a trade union; in Schedule 1 dismissal by an employer in a closed shop situation was unfair if the employee objected to union membership on grounds of religious belief or on any reasonable grounds.

This Bill takes yet a further step to deprive the individual employee of his legal rights against unreasonable exclusion or expulsion from a trade union and against unfair dismissal by an employer. It repeals Section 5 of the 1974 Act—that is, Clause 1(a)—and in Clause 1(e) it removes from Schedule 1 the words, or on any reasonable grounds to being a member of a particular trade union ". This has been our fundamental objection to the Bill throughout its progress in this House. We believe that trade unions are now in a position of considerable power, and that Parliament should be concerning itself, more particularly in the present circumstances, with the rights of the individual worker rather than with giving yet more power to the union against the individual worker.

Moreover, we believe that some of the provisions of this Bill are in contradiction to the requirements of the European Convention on Human Rights. This was the reason why, at the Committee stage in the last Session, my noble and learned friend Lord Hailsham of Saint Marylebone moved Amendments to secure the rights of the individual. The Bill allows a person to claim damages against an employer for unfair dismissal if he refuses to join a recognised trade union on grounds of religious belief and on no other grounds. This seems to us to be far too narrow and, in particular, to exclude grounds of conscience which have, in the past, always been recognised as valid, which were recognised as valid by the Donovan Report, and which, in an increasingly irreligious age, one would have thought might have more validity than ever before.

The Amendment which your Lordships made at the Committee stage a year ago inserted after "religious belief" the words "or reasonable grounds of conscience". That Amendment was rejected in another place, and on the matter returning here we very reluctantly accepted that rejection, mainly because by then we were even more preoccupied with one particular aspect of the closed shop, which related to the freedom of the Press. However, the relevance of those Amendments has now been highlighted by the case of the so-called "Ferrybridge Six". They were dismissed by their employer as they were unwilling to join a recognised union. But under the 1970 Act, as it still stands, they had a right of appeal to an industrial tribunal. They exercised their right of appeal; that tribunal has now reported and has found in their favour.

But none of this appeal procedure would have been open to them if this Bill had now been on the Statute Book. If this Bill had already become law their only recourse would have been to a committee set up by the TUC which, in my view, by its very nature, cannot be considered to be an independent tribunal. I have no prejudice against the TUC. At the same time, I believe that it is a generally accepted view that justice has not only to be done but has to be seen to be done; I do not believe that a committee established by the TUC can possibly be seen to do justice between an employee and his union. What is more, its jurisdiction would not apply in the case of unions that are not members of the TUC, and it has no means of ensuring that its decisions are put into effect. We remain firmly opposed to the provisions of this Bill as they affect the individual worker.

However, it was more particularly in relation to the freedom of the Press that this House seized upon the dangers inherent in the Government's proposals. There remain the dangers of an agreement to establish a closed shop within a newspaper, compelling the editor to join and influencing his editorial judgment; and there remains the further danger of excluding outside contributors who may not be members of an appropriate union.

This was the case which was at the time so eloquently argued by the noble Lord, Lord Goodman, and those who supported him, and which this House supported by a very large majority, in the final analysis by 168 votes to 80, with my Party and the Liberal Party supporting the noble Lord, Lord Goodman; with a very large majority of the Cross-Benchers supporting the Amendment; and with even some Members on the opposite side of the House supporting it. I am very sorry that the noble Lord, Lord Goodman, is not able to be with us today. I understand that he is making good progress and that he will be able to be with us on the Committee stage. In the meantime, we are fortunate to have one of the co-sponsors of his Amendment, my noble friend Lord Drogheda, who no doubt will be able to put us in the picture with regard to his views on the present proposals for a voluntary Press charter.

As the noble Lord, Lord Shepherd, told us, the Government are determined to get their Bill, either with our agreement, or by means of the Parliament Acts of 1911 and 1949. The Government have reintroduced this Bill in substantially the same form as it came to us from another place in the last Session, together with a number of suggested Amendments which consist mainly of a new clause with their proposals for a voluntary charter on the freedom of the Press. The noble Lord, Lord Shepherd, has clearly outlined to your Lordships the various options which are open to us under the Parliament Acts and the present situation. We are powerless to prevent the Bill from being passed into law by the end of this Session.

Should we therefore seek to defeat it at Second Reading, thereby causing a clear disagreement between the two Houses and allowing the Government to get their Bill immediately under the Parliament Acts? My Lords, this view has some attractions, not only from the point of view of an Opposition who dislike the Bill intensely but, it may be, also for the Government in allowing them to get their Bill without further delay. But personally I would hope that your Lordships would not act thus precipitately. It seems to me that the very fact that another place has sent us suggested Amendments demands that for the sake of courtesy and the normal constitutional proprieties we should give this Bill a Second Reading, and should examine its implications more closely at the Committee stage.

As I understood it from the noble Lord, Lord Shepherd, the Government will put down the suggested Amendments, if they are considered this afternoon and if the Bill is given a Second Reading, and your Lordships can then discuss the merits of this new clause, or its possible demerits, and decide whether or not these suggested Amendments should be incorporated in the Bill. As the noble Lord also made clear, we shall have the opportunity, if we give the Bill a Second Reading, to consider other Amendments, in particular, perhaps, Amendments to Clause 1(a) and Clause 1(e), still the main, underlying reason for our utter dislike of this Bill. However, my noble and learned friend Lord Hailsham will probably have more to say on this particular matter when he comes to speak later in this debate. I would content myself with advising your Lordships to give a Second Reading to this Bill, much as some of us may dislike it, and to agree to the consideration of the suggested Amendments. How we treat the Bill at its Committee stage or subsequently we can decide in the light of our further discussion of its provisions.