§ 4.54 p.m.
§ The SOLICITOR-GENERAL for SCOTLAND (Lord McCluskey)My Lords, with permission, I will repeat a Statement now being made in another place by my right honourable and learned friend the Attorney-General on the law relating to picketing. The Statement reads:
1585 "With permission, Mr. Speaker, I will make a Statement on the law relating to picketing.
"It is necessary to deal separately with the criminal and the civil law. It is for the police to take action to enforce the criminal law. It is for those who suffer damage in consequence of civil wrongs to bring civil proceedings in the courts to restrain the commission of those civil wrongs or to recover damages.
"Section 15 of the Trade Union and Labour Relations Act 1974 applies both to the criminal and to the civil law. Its ancestry now goes back over 100 years. Its effect is that peaceful picketing as defined in the section is not unlawful. Peaceful picketing is the attendance of one or more persons at or near somebody's place of work or business or anywhere else where he is except his home. The protection of Section 15 is given if the attendance is in contemplation or furtherance of a trade dispute, if its sole purpose is to give or receive information or to persuade somebody to work or not to work, and if it is peaceful.
"The criminal law makes no distinction between so-called 'primary' and 'secondary' picketing. But it does not permit acts which, apart from Section 15, are breaches of the criminal law. It follows that, whether or not in the course of picketing, the criminal law is broken by violence, extortion, obstructing the highway, or obstructing the police in the reasonable execution of their duty. Pickets may lawfully indicate to a driver their wish peacefully to communicate with him. But no law requires him to stop. If a picket obstructs the highway in order to cause him to stop, that is a breach of the criminal law and Section 15 is no defence. A driver who wishes to drive past a picket line is in law entirely free to do so, so long as he drives in 'a lawful manner. If a driver or anyone else, including a picket, is unlawfully obstructed or intimidated or assaulted, he should report the matter to the police. Extortion of money as the price for letting a vehicle through would, of course, be a most serious offence and indeed a quite intolerable act, and anybody who is the victim of it has a duty to report it.
1586 "Picketing as such is not a civil wrong. But its primary purpose is to persuade those who are under a contract of employment not to perform it. If that persuasion is in contemplation or furtherance of a trade dispute, and is the only actionable wrong, Section 13 of the 1974 Act gave to the persuader protection from civil action by the employer. This protection went back to the 1906 Act. Section 3 of the 1976 Act added protection from an action based on direct interference with a commercial contract. If in either case the persuasion is not in contemplation or furtherance of a trade dispute, there is no protection and the injured party can obtain an injunction or damages.
"The protection from civil action therefore depends on whether the persuasion which is the object of the picketing is in contemplation or furtherance of a trade dispute. This cannot be determined by the very loose terms 'primary' and 'secondary' picketing. But under recent decisions of the courts the test applied seems to have been whether the industrial action complained of has been so remote from the original trade dispute as to be not reasonably likely to further it. You can lawfully seek to ensure that your employer's supplier does not supply him. But if he continues to do so, and you then seek to ensure that the supplier to that supplier does not supply him, the decisions of the court suggest that you are entering the area of potential remoteness, where the Section 13 protection runs out. In both cases the term 'secondary picketing' would be apt, but the legal consequences could be quite different.
"Finally, Mr. Speaker, it has been suggested that the repeal of the 1976 amendment would make a substantial difference to the balance of strength between employers and unions. I disagree. In my view its effect on that balance would be insignificant in the light of the remoteness test, which seems to me to be a far greater potential limitation on the protection provided by Section 13. The repeal of the 1976 amendment would merely restore a host of anomalies to which the Donovan Report rightly drew attention".
My Lords, that concludes the Statement.
§ 4.59 p.m.
§ Lord HAILSHAM of SAINT MARY-LEBONEMy Lords, I am sure that the House would wish me to thank the noble and learned Lord for repeating that Statement, and would not wish me to pursue my disagreement with the Government on the subject of Section 13 of the 1976 Act. We have the advantage here of the Solicitor-General for Scotland, whereas the Statement was made by the Attorney-General. That prompts me to ask the noble and learned Lord to confirm whether or not the law of Scotland is identical with the law as declared by the Attorney-General in another place.
I understand that as regards breach of the peace the law of Scotland is of a slightly different character from that with which I am more familiar. I am compelled to say that I think it is strange that it has taken so long for the Attorney-General to come to the Dispatch Box with a Statement of this kind, and now only under pressure from the Opposition. I should have thought that one of the first things that an Attorney-General would wish to do would be to state clearly and unmistakeably to the nation, through the House of Commons, what the law relating to picketing is, because the great majority, both of those who pass pickets and those who keep them, wish to keep the law and wish to know what it is.
It will not be unclear to all Members of this House that the law of picketing is extremely imprecise and extremely difficult to enforce. At least, in my judgment, the Home Secretary should, at a very early stage, have assembled in London the chief constables of the police authorities to consult one another as to the effective operation of the law and as to mutual aid in enforcing it. One recognises that there is no power to give instructions, but it is within my knowledge that on previous occasions previous Administrations have taken this elementary step.
With regard to the relationship between a code of practice and a rule of law, one must recognise that a code of practice has value only to the extent to which it is observed on the picket line. It is not a substitute for a clear statement of the law and positive law enforcement. Moreover, 1588 a code of practice must be enunciated within the framework of a clear statement of the law.
Next I should like to say to the noble and learned Lord that secondary picketing is a menace and that it ought to be stopped. Only those who are members of striking unions should be allowed on the picket line, and the only places at which picketing should take place are the places of business of those who are in dispute. Pickets should be advised—because we could do no more—to produce evidence of identity and some evidence of authority to act on behalf of the body for whom they purport to act.
The police should be available to prevent breaches of the peace. I noticed that there was no effective definition of "intimidation" in the Statement. The definition is obscure. Is the threat of the loss of a union card, particularly in a closed shop situation, an act of intimidation, or is it not? If it is not, then what is the value of the Prime Minister's statement that he would gladly march across the picket line? It does not matter to the Prime Minister whether or not he loses his union card.
We shall be debating this matter during the debate but I am bound to say that this Statement comes too late, will not be understood by the ordinary man in the street and is disappointingly unclear about the changes in the law which some of us believe to be urgently necessary.
§ Lord WIGODERMy Lords, I do not want to anticipate the observations that I hope to make at a later stage in the current debate when I shall suggest some alterations to the criminal law in order to curb the more gross picketing malpractices. At this stage I want to ask the noble and learned Lord only one question. Am I right in thinking that without the protection of Section 15 of the Trade Union and Labour Relations Act 1974 any picket who stands on the highway is almost inevitably committing the offence of obstructing the highway—a criminal offence? And am I right in thinking that as a result of the decision in Broome v. The Director of Public Prosecutions, the protection of Section 15 does not extend to any such picket who requires a motor vehicle to stop? If that is right, would the 1589 noble and learned Lord indicate how many tens of thousands of criminal offences have been committed in the course of the last few weeks, whether there has been one single prosecution and, if not, why not?
§ Lord McCLUSKEYMy Lords, while the references are fresh in my mind, may I refer to the case which the noble Lord has just mentioned, the case of Broome v. The Director of Public Prosecutions. The noble Lord is right, of course, in saying that the House of Lords, sitting as an Appellate Court, held that the picket in that particular case had no right to obstruct the highway, the circumstance being that he stood in front of a lorry with a placard. It was held that he was committing an offence under Section 121 of the Highways Act 1959: wilfully obstructing the free passage along a highway.
Let us be quite clear that what we are speaking of in that kind of case is proof. It was evident in that case that there was proof that a man was deliberately and wilfully stopping a lorry from moving when its driver wanted to move it. If that is the situation, and if it is established to the satisfaction of a court, then that person will be prosecuted. If the facts do not justify bringing such a criminal charge before the court, we cannot do so. The noble Lord ought to bear in mind that what is happening in the great majority of cases is that pickets are seeking to stop vehicles in order to ask drivers not to engage in certain action and that the lorry drivers are stopping willingly, or at least are not being forced to stop. If they are forced to stop, that is obstruction and there ought to be a prosecution if the facts can be established. I believe that that is the correct answer to what the noble Lord has suggested.
In relation to what was said by the noble and learned Lord, Lord Hailsham of Saint Marylebone, the law in Scotland is not identical with the law in England, for a number of reasons. First, the statutory provisions are, of course, United Kingdom statutory provisions, as the noble and learned Lord will acknowledge. So the statutory provisions are the same. In relation, however, to the particular matters mentioned by the noble and learned Lord, the role of the police is entirely different.
1590 Although the police will attend and report matters to the Public Prosecutor, in the shape of the procurator-fiscal, the decision to prosecute is not that of the police. That decision is taken by the Public Prosecutor. The result is that it has an effect upon the breach of peace type of case, as the noble and learned Lord obviously knows, because the matter may be looked at slightly more objectively in Scotland than it is in England. In relation to obstruction, that section of the Highways Act to which I referred does not apply in Scotland. We proceed upon a different basis. But by and large I think I can say that one would not expect to get a different result if the facts were the same on both sides of the Border.
I do not think that there has been undue delay. This is a matter of great difficulty. One finds, even in the textbooks to which I have made reference for the purpose of instructing myself on this matter, that there are differences of emphasis about what the law is. It is important to try to get it right and time has properly been taken to do that.
It is said that secondary picketing is a menance. Unfortunately the term "secondary picketing" is somewhat imprecise and is much abused. Secondary picketing was allowed even in the Industrial Relations Act 1971 which was introduced by the previous Government, of which the noble and learned Lord was a distinguished member. Policemen should be available where they are necessary. Usually they are not needed because, where picketing goes on, perfect order is in most cases kept. In some cases, of course, perfect order is not kept, and the police endeavour to attend on these occasions.
I think that I should not further anticipate the matters which will be raised during the course of the debate and that I should not attempt to answer any further questions on a matter which might simply confuse the issue, although I hope to deal with them more fully at a later stage.
§ Lord HARMAR-NICHOLLSMy Lords, there is a grave omission in the Statement which has just been made. The Law Officers of the Crown have confirmed that things that have gone on over recent days and weeks are criminal 1591 acts. The omission in the Statement is this: what have the Government done about it? What overtly have they tried to do in recognising these criminal acts? My noble and learned friend suggests that a meeting of chief constables ought to be called with the idea of working out strategy. Could that not be done? Could not a Government circular be sent to the police? The Statement as it stands merely says that if somebody feels that they have been the victim of a criminal act they ought to report it to the police. The fact that they have to do that as a person under stress is itself intimidation. Why cannot the Government encourage the police to take on the responsibility of taking the first action? At the risk of incurring the displeasure of the noble Lord the Leader of the House, I ask once again whether there is anything in the Government's mind which will repair the omissions in this Statement?
§ Lord PEARTMy Lords, I hope the noble Lord will remember that this is a question period.
§ Several Noble Lords: It is a question.
§ Lord PEARTMy Lords, I thought the noble Lord was trying to make a speech.
§ Lord McCLUSKEYMy Lords, perhaps I may swiftly address myself to the questions that I have been asked. The Attorney-General does not have a role to play in relation to prosecution for minor offences. That is a matter for the police or, in the case of civil remedies, it is for the employers or contractors or whoever it may be to seek their remedies in the courts. It is the normal way of bringing to the attention of the criminal courts that a criminal act may have taken place for persons to report the matter to the police. That is the way it normally happens. Where, as in these cases, the police are attending upon the scene where criminal acts may take place, of course they will observe them for themselves. Where the criminal act is of the kind mentioned by the noble and learned Lord, Lord Hailsham of Saint Marylebone—a breach of the peace in England—the police have an important role to play in relation to that. These are matters which are perfectly clear; they are not omissions 1592 from the Statement. This is a Statement about the law of picketing as it is at the present time. I hope that that sufficiently answers the question.
In relation to circularising chief constables, in fact the Home Secretary has no duty and no power to circulate chief constables about what they ought to do; and I think there has been a certain confusion, both in the other place and the——
§ Lord HAILSHAM of SAINT MARYLEBONEMy Lords, I hope the noble and learned Lord does not wish to misrepresent me. I said that he ought to have assembled them, not circularised them.
§ Lord McCLUSKEYMy Lords, I accept that; I was dealing with the last point raised by the noble Lord, Lord Harmar-Nichols, and the gloss he put upon it. Of course the noble and learned Lord said something to which I take no exception at all. But, in relation to circularising chief constables, what the Home Secretary can and should do and frequently does when there is a change in the law is to send out a circular drawing the attention of chief constables to that change in the law. However, it is not proper for him to say to chief constables: "You ought to do this in that situation, and you ought to do that," in relation to their primary duty of exercising their discretion to prosecute. I believe that that would be an unwarrantable interference by an executive Member of the Government in the discretion which chief constables on this side of the Border have accorded to them.
The Earl of SELKIRKMy Lords, I should like to ask the noble and learned Lord one question on clarification. He has said that for peaceful picketing to be permitted there requires to be an industrial dispute concerning persons under contract. If that is correct, then volunteers going in to serve meals in hospitals cannot be even peacefully picketed. Is that correct?
§ Lord McCLUSKEYMy Lords, I do not think I said that, or if I did I certainly did not mean to. The provisions about peaceful picketing are contained in Section 15 of the Act of 1974. Those provisions were not changed in 1976, and 1593 if the noble Earl looks at Section 15 he will find that the words used are quite general and the persons who are permitted to do certain things are any persons, that they are entitled to attend at any place other than a person's residence and,—and I quote—they are entitled to attend,
for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working".Although I think it improper to attempt to define the law on one's feet at this stage, I think those words are wide enough to cover even a person who volunteers to work rather than a person who is employed.
§ Lord CARR of HADLEYMy Lords, I should like to put one question to the noble and learned Lord about the Statement. His Statement deals with the question of commercial contracts. I think all of us who know anything about this would agree about the very great difficulties in prosecuting for criminal action—difficulties for the police; difficulties for the "informers", if I may use that shorthand; difficulties of precise proof and also, of course, criminal prosecution can be inflammatory. Is it not therefore far more important to consider the rights for civil action and is not one of the real needs to reduce the protection against civil action? That is why, if I may say so, I was astonished and shocked by the Statement repeated by the noble and learned Lord, dismissing altogether what I believe to be of great importance, namely the very damaging effect which has been produced by extending immunity to direct action to interfere with commercial contracts, as it used to be limited to contracts of employment.
§ Lord McCLUSKEYMy Lords, I hope that I shall not take an undue time to explain the position here. First, as your Lordships are well aware, for some years the Donovan Royal Commission considered the whole matter of trade unions. Of course they considered the matter of picketing, including what is now known as secondary picketing, and in a series of recommendations which are to be found in paragraphs 875 to 892 the Donovan Royal Commission recommended that what is called secondary picketing—although the words are susceptible of different meanings, but secondary 1594 picketing of the kind spoken of by the noble Lord, Lord Carr—should be permitted by law. So in introducing that change the Government were acting upon the unanimous recommendation of a Royal Commission, and I hope to give the references more fully, if it be required, later in the course of the debate.
Secondly, your Lordships will recall that in the 1971 Industrial Relations Act, secondary picketing of that kind and interference with commercial contracts were prohibited. In practice, one found that the civil law remedy simply did not work, and in the case of the five strikers who were sent to prison for contempt of court it was seen to be intolerable and one had the extraordinary situation of the Official Solicitor moving in to get them out. We must not forget that our experience of how badly the 1971 provisions worked is something that the Government must take into account.
§ Lord WIGGMy Lords, would not the Minister agree that, if it is not dangerous, it is singularly unhelpful for eminent lawyers to put forward their interpretations of the law mixed up with their thoughts about the amendment of the law? Surely at this time it must be the object of the Government, and indeed of all men of goodwill, to try to take the heat out of the existing situation and to get the strikers back to work. When the strike is over and some of the heat has gone, then the normal political speaking can take place—I hope not on the basis of Daily Telegraph articles which have not been checked but on an objective examination of the situation in the whole of the community. Then is the time for an amendment of the law. But now we should not mix up the two to a point of misrepresentation, because the strikers can also read the Daily Telegraph and they also read your Lordships' debates and therefore one-sided statements are wholly inflammatory.
§ Lord McCLUSKEYMy Lords, I can only answer for the Attorney-General. He was criticised a short time ago for delaying the making of the Statement and now he is being criticised for making one. One cannot satisfy all the people, or even all the noble Lords, all the time.
§ Lord SEGALMy Lords, may I—
§ Lord PEARTI think we have had enough on this Statement. We have 26 more speakers to take part in the debate.