Lords Sitting of 8 July 1980

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Oxford.

PAY INCREASES IN PUBLIC SECTOR: POLICY
Lord BESWICK: My Lords, I beg leave to ask the first Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government, when pursuing their declared policy of restricting pay increases in the public sector, including for example the BBC, what steps they propose to take to ensure comparable restrictions in the private sector, including for example the ITV.
The MINISTER of STATE, TREASURY (Lord Cockfield): My Lords, the Government are responsible for pay negotiations only in respect of their own employees. So far as the private sector and the rest of the public sector are concerned, this is a matter for the respective managements who are subject to the disciplines of the market place and, where appropriate, of cash limits and the like. But all negotiators, whether in the private or the public sector, need to remember that excessive settlements mean higher unemployment.
Lord BESWICK: My Lords, while thanking the noble Lord for answering the Question, and while recognising with him—as I think we all do—the need for restraint in the total national wage bill, may I ask him whether, if we have a situation where there is a 14 per cent. pay settlement for the BBC and a 45 per cent. settlement over two years for the ITV, this can really be justified on grounds of either fairness or economics?
Lord COCKFIELD: My Lords, I am grateful to the noble Lord for the comments he made in the first part of his
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supplementary question. So far as the second part is concerned, these are matters which are essentially for the management of the bodies concerned. It is true, of course, that the operation of the levy imposed on the programme contractors gives rise to certain anxieties. This was recognised by my right honourable friend the Home Secretary in the speech which he made on the Broadcasting Bill on 24th June. This is why he said that the operation of the levy was being reviewed by himself and his right honourable friend the Chancellor of the Exchequer.
Lord KALDOR: My Lords, when the noble Lord said that higher pay settlements mean more unemployment, did he mean to imply that they do not mean higher inflation, or is it his view that they do both?
Lord COCKFIELD: My Lords, the noble Lord will find that I dealt with this matter at length in the speech that I made in the debate in your Lordships' House on 11th June, and I invite him to re-read that speech.
Lord DRUMALBYN: My Lords, can my noble friend confirm that, with a view to maintaining employment, some firms have actually accepted cuts in salaries?
Lord COCKFIELD: Yes, my Lords, this is true, and an increasing number of firms are realising that, in their own interests and the interests of their employees, they need to settle at reasonable levels.
Lord ROCHESTER: My Lords, does the noble Lord agree that it would be helpful, through consultation, to obtain a more widely accepted understanding of the overall increase in pay that the country can afford in the public and private sectors taken together?
Lord COCKFIELD: My Lords, these matters are, of course, the subject of debate and discussion in a number of places, not least of course in the National Economic Development Council. I believe that a general view that restraint in these matters is in the interests of everybody concerned is now becoming more accepted throughout the country as a whole.
Viscount MASSEREENE and FERRARD: My Lords, would not my noble friend the Minister agree that, as the public sector is usually, though not always, a drain on the Exchequer, one cannot therefore really compare salaries in the private sector with those in the public sector?
Lord COCKFIELD: My Lords, that is, of course, going very wide. While I very much appreciate what my noble friend says, we believe it is important that the public sector should set a good example in this matter, and this is what we are endeavouring to do.
Lord BESWICK: My Lords, I beg leave to ask the second Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government when pursuing their declared policy of restricting pay increases in the public sector, what steps they propose to take to ensure that wealth-producing, profit-making, foreign currency-earning enterprises in this sector are not disadvantaged in attracting and rewarding the necessary skilled labour.
Lord COCKFIELD: My Lords, companies in the private sector are subject to the disciplines of the market place. In the case of public sector corporations, external financing limits are set. The constraints which these impose are similar to those to which private sector companies are exposed. The public sector is not, therefore, at a disadvantage. In both public and private sector, pay increases must be related to the ability of the organisation to pay, but success and skill can still be properly rewarded.
Lord BESWICK: My Lords, having listened with great care to what the noble Lord was good enough to say, may I ask him whether he will therefore give an assurance that, if there is an organisation within the public sector which satisfies the criteria which I have set down in my second Question, there will be no artificial limitation on any wage settlement made there?
Lord COCKFIELD: My Lords, obviously, I cannot give any assurance
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of the specific kind for which the noble Lord is asking. In particular, I would make two points: first, that negotiations in these bodies are a matter for the management and not for the Government; and, secondly, that in setting the external financial limits the Government pay regard to the kind of factors to which the noble Lord draws attention.
Lord BOYD-CARPENTER: My Lords, is not the corollary to the noble Lord's Question that loss-making enterprises in the public sector should exercise the greatest restraint and perhaps should offer no increases at all?
Lord COCKFIELD: My Lords, I agree entirely with my noble friend that where a concern in the public sector is making losses there is a very heavy responsibility upon it to improve its performance and to endeavour to reduce its unit costs with a view to returning to profitability.
Lord KALDOR: My Lords, would not the noble Lord agree that in their recent appointment of the chairman of BSC the Government have given evidence of being prepared to go to quite extraordinary lengths in order to reward the necessary skilled labour?
Lord COCKFIELD: My Lords, I note the point which the noble Lord makes. I think that there is universal agreement that the plight of British Steel was such that it was absolutely essential to find the best management available anywhere in the world.
Lord MONSON: My Lords, in view of the phrasing of the Question asked by the noble Lord, Lord Beswick, would not the noble Viscount join me in congratulating the Labour Party upon at last recognising the significance of the law of supply and demand in determining wage and salary levels?
Lord COCKFIELD: My Lords, I do not think that I can follow the noble Lord very far down that path, except to say that I believe that there is universal agreement that in these matters the laws of supply and demand are of importance.
Lord BALOGH: My Lords, does the Minister realise that in an economy which

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is dominated by oligopoly his words are rather meaningless?
Lord COCKFIELD: No, my Lords, I would not accept any conclusion of that kind.
Lord BESWICK: My Lords, while accepting what has been said by noble Lords in different parts of the House, that there are different settlements in different parts of the economy, would not the noble Lord agree that if we are to have a genuinely stable society there must be a prevailing sense of fairness? If double standards are applied to the public sector as against the private sector, no matter what Employment Bills we get there is bound to be industrial conflict.
Lord COCKFIELD: My Lords, I do not agree with the conclusions which the noble Lord expresses. I accept entirely that there needs to be a sense of fairness, but the whole objective of the Government's policy is to be even handed between the public and the private sector and thereby to create a sense of fairness.

OVERSEAS STUDENTS' FEES
2.45 p.m.
Lord GLADWYN: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government how exactly the careful monitoring of the effects of "full cost" fees for overseas students, recently announced by the Secretary of State for Education and Science, will be carried out.
The MINISTER of STATE, DEPARTMENT of EDUCATION and SCIENCE (Baroness Young): My Lords, statistics should be available soon after the start of the next academic year to enable a first assessment to be made of the overall effect of the policy of full cost fees. In the light of this, further information will be collected about specific effects in institutions. All the available data will be carefully examined by the department in consultation with the University Grants Committee and the local authority associations.
Lord GLADWYN: My Lords, I thank the Minister for that reply. Can she tell us whether the necessary statistics will be assembled more speedily than in recent years—they have been very much delayed in recent years—and how the various groups will be identified? For instance, will refugees and recently arrived immigrants in this country still be counted as overseas students? And, generally, what do the Government plan to do as a result of the whole exercise?
Baroness YOUNG: My Lords, consultations between the department, the University Grants Committee and the local authority associations will be taking place later on in the year when firm facts and figures are available. We expect to know something about the figures from the universities and the polytechnics towards the end of this year. We shall find out about the institutions of higher education early in 1981. I cannot anticipate what action may or may not be necessary until the facts are known.
Lord AVEBURY: My Lords, would the Minister agree that whatever conclusions may be drawn from the statistics collected this year, they will already be out of date because on 1st January, 1981 it is the intention of Her Majesty's Government to charge overseas students for any medical treatment that they receive under the National Health Service? So on top of the burden of the increased fees, they will have to pay for an insurance policy to take care of this eventuality. Will the Government continue the assembly of the statistics into next year so that the deterrent effect of the large increases in fees, plus the charges for medical treatment, can be fully taken into account?
Baroness YOUNG: My Lords, it is our intention that the monitoring will continue over a period of two to three years. So far as the question of medical treatment is concerned, that is another question and I should be happy to answer it if the noble Lord cared to put down a Question on that issue.
Baroness VICKERS: My Lords, may I ask the Minister whether, in the monitoring which is to take place, consideration will be given to the finances of the smaller islands and countries like Bangladesh

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which are very badly in need of qualified people in the professions and industry?
Baroness YOUNG: My Lords, we shall be keeping in touch with the Foreign Office and with other relevant Government departments in order to keep them fully in the picture as all the facts and figures become available.
Lord BROCKWAY: My Lords, when the monitoring of the effects of these higher fees takes place, may I ask the Minister whether there will be consideration not only of the poorer countries, as the noble Baroness, Lady Vickers, has suggested, but of the fact that tile élite are able to pay these higher fees while many students of poorer communities are ruled out from attending our universities?
Baroness YOUNG: My Lords, we believe that we are meeting our obligations to the developing countries through the aid programme. The various programmes and schemes supported add up to a substantial contribution costing some £36 million this year for the training of people from developing countries.
Lord ANNAN: My Lords, is the Minister aware how grateful the University of London is to the Government for having made available £3·75 million to help the university and for putting that money at the disposal of the University Grants Committee, in view of the very large proportion of overseas students which the university has? Is she also aware that if half the present number of overseas students come at competitive fees, the post graduate medical schools and institutes will still lose £5·4 million, and the four most affected non-medical schools, such as the London School of Economics and the School of Oriental and African Studies, would lose £3·5 million? Is she further aware that even if three quarters of the present number of students came at the full economic fee, the whole university, after taking into account that £3·75 million, would still be £4 million short?
Baroness YOUNG: My Lords, I am grateful to the noble Lord for the first part of his supplementary question. On the second part, of course the monitoring process is entirely to take account of the kind of facts that he has elucidated, and
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I think it would not be helpful to make a judgment about what might or might not happen when we do not know the situation —and we shall not know until we undertake the monitoring exercise.

THE ITV LEVY
2.51 p.m.
Lord AYLESTONE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government what were the total sums collected by the Independent Broadcasting Authority on behalf of the Government, as additional payments (the levy) from the ITV programme companies over the past five years.
The PARLIAMENTARY UNDERSECRETARY of STATE, HOME OFFICE (Lord Belstead): My Lords, the additional payments to the nearest million made by the programme contractors under Section 26(1) of the Independent Broadcasting Authority Act 1973, as examined by the Comptroller and Auditor General, were as follows for the years 1975–76 onwards:

£22

million

£48

"

£62

"

£69

"

£42

"

The last figure is unaudited.
Lord AYLESTONE: My Lords, in thanking the noble Lord the Minister for his reply may I ask him whether the Government would consider using some of this money for the BBC's overseas radio service, which is perhaps the only voice of Britain in the world?
Lord BELSTEAD: My Lords, it is not Government policy and indeed so far as I know it has not been Government policy to hypothecate its sources of income. Perhaps I may just add that, as I think the noble Lord knows very well, the basis of the levy has always been that the public should share in the exploitation of a public monopoly, and that is an argument for the proceeds going generally for

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the benefit of the public and not being hypothecated—certainly not being hypothecated to the overseas services of the BBC, which of course are funded from a totally separate source.
Lord TAYLOR of GRYFE: My Lords, will the noble Lord confirm that the sums he has quoted, plus the tax liability of the independent companies, represent about 80 per cent. of their revenues?
Lord BELSTEAD: Yes, my Lords, and that is one of the reasons why my noble friend Lord Cockfield mentioned, in answer to an earlier Question on the Order Paper, that my right honourable friend the Home Secretary and also the Chancellor of the Exchequer are together looking at the system of the payment of the levy.
Lord DAVIES of LEEK: My Lords, may I ask the noble Lord why he uses the word "hypothecate"? When one hypothecates one pawns in the expectation of gain. I never heard of anybody pawning in the expectation of gain; they have to pay for somebody to take care of something.
Lord BELSTEAD: My Lords, when I hypothecate I take something and I give it somewhere else and that is precisely what I am telling the noble Lord, Lord Aylestone, we cannot do in this particular case.

BUSINESS
Lord DENHAM: My Lords, it may be for the convenience of your Lordships if I announce that dinner will be available this evening at the usual time.
The Report stage of the Employment Bill will be adjourned at a convenient moment for approximately an hour.

SOLICITORS (SCOTLAND) BILL [H.L.]
Read 3a, and passed, and sent to the Commons.

FILMS BILL
Lord TREFGARNE: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Accordingly, unless any noble Lord objects, I beg to move that the Order of Commitment be discharged.
Moved, That the Order of Commitment be discharged. —(Lord Trefgarne.)
On Question, Motion agreed to.

EMPLOYMENT BILL
2.55 p.m.
Further considered on Report.
Clause 16 [Picketing]:
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 37:
Page 18, leave out from beginning of line 20 to ("or") in line 23 and insert—
("Picketing
16.—(1) In section 15 of the 1974 Act there shall be inserted after the word ("lawful") the words ("subject to section 15A below").
(1A) There shall be inserted in the 1974 Act after section 15, the following section—
Peaceful picketing and civil liability
15A—(1) In any legal proceedings concerning civil liability section 15 above shall not apply, but it shall be lawful for a person in contemplation").
The noble Lord said: My Lords, my noble friends and I approach the resumption of the Report stage of this important Bill in the confident belief that the intensification of public and other interest in the Bill will make the Government understandably consider very carefully whether, on these very important clauses, they really have got it right. We hope that they will not necessarily believe that they have got it right merely because they stand half way between the devil and the thin red line. There are marginal adjustments which we believe should be made to the Bill and this amendment relates to the first.
It relates to the question whether, by confining the clause that allows for lawful picketing to a person's own place of work, the Government are affecting criminal liability as well as civil liability. The

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Government's position throughout has been that they wish to affect the civil liability of pickets who depart from their own place of work, and, accepting that objective, we have argued in the past that in that case their Bill has got it wrong. It has got it wrong because in confining the place where lawful picketing may now take place they have affected, and will affect, criminal liability as well.
So far we have discussed this matter, both in this and in another place, largely on the basis of the liability for wilful obstruction of the highway. In relation to that, in Committee we have already discussed the views of the Attorney General given to the other place, including his view given on 10th March at column 1348 of the Official Report of the Standing Committee, where he spoke about wilful obstruction of the highway in relation to Section 15 of the 1974 Act, which is the peaceful picketing section. He said:
"Some say that Section 15 is declaratory and others say that it would go further and provide an immunity in that case; but, whatever the precise legal effect of Section 15, its practical consequences are not in doubt; that is, that it normally would not cover an obstruction".
We pressed the Government on this point—and with two schools of thought even the Attorney General agreed there was a doubt on the matter—and pressed the Government with the words of the noble and learned Lord, Lord Salmon, given in the Judicial Committee of your Lordships' House in the case of Hunt v. Broome in 1974, where he, too, spoke about a narrow but nevertheless real immunity for pickets in relation to criminal liability—and that did not convince the Government.
What I think has not been done is to take the even easier case to prove the need to revise the clause in the way that we suggest, which is the original area of criminal liability which gave rise to the whole problem. That, of course, is the crime of watching or besetting. Out of a rather confused jurisprudence in the 19th century the 1875 Conspiracy and Protection of Property Act codified the crime for any person (trade dispute or not) who, without legal authority—and I quote subsection (4):
"watches or besets the house or other place where such other person resides or works or carries on business or happens to be or the approach to such house or place"—
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—watches or besets. There was a proviso to this section that attending at or near a place merely to obtain or communicate information was not to be a watching or besetting.
In 1875, because of that proviso, the trade union movement believed that it had secured a right to picket. Its belief was short-lived because when the case of Lyons and Wilkins—a case which I cite with some confidence because the noble and learned Lord the Lord Advocate used it in argument in Committee—went, for the second time, to the Court of Appeal in 1899, Lord Justice Vaughan-Williams said:
"The Act of 1875 is intended to define what kind of watching and besetting shall in future be warranted by law. Watching and besetting shall be confined to watching and besetting merely for the purpose of obtaining and communicating information".
That meant that the right to picket was again at risk of the crime of watching or besetting. That was why in 1906, in the compact of that year in the Trades Disputes Act, in Section 2 the right to attend was widened in contemplation or furtherance of a trade dispute from merely informing, obtaining or communicating information, to persuading peacefully another person to work or abstain from working. That, of course, has remained the modern formula, since 1906 through all the changes of statute, of the right peacefully to picket.
Since the reason, or one reason, for putting in in 1906 the extra words of "peacefully persuading", because that was the element that was absent in Lyons and Wilkins and a number of other cases, was to protect pickets against the crime of watching or besetting, it is quite clear from the case law merely on this crime alone that the reason why pickets do not encounter liability in criminal law for watching or besetting in certain types of case is the protection in the lawful picketing section. I have some passages from Citrine's Trade Union Law, but unless the noble and learned Lord who I suspect is going to answer wishes it, I shall not read them. I say that in the books like Citrine's Trade Union Law it is made absolutely clear that the crime of watching or besetting would apply to certain types of picketing of a mild kind, of a peaceful kind, were it not for then section.
If that is right, if the section is then constricted to a narrower place, it must be that the defence against the crime of watching or besetting has been so constricted. It is on that basis that I would ask the Government and noble Ministers to reconsider this matter, which is a matter which is giving very serious concern to workpeople in their trade unions because they are concerned about an extension of criminal law. I am not suggesting that watching or besetting, or obstruction, are the only two problems. I have taken one example to prove the case that there is a sufficiently strong element of doubt as to whether the Government have got it right for them to give us some encouragement to believe that they will come back on Third Reading with a rather different formula which will keep criminal liability where it is and do what they want to do with civil liability. My Lords, I beg to move.
Lord MACKAY of CLASHFERN: My Lords, I think at least some of the ground the noble Lord has covered is ground that we have been over before. Our view of the matter is that peaceful persuasion, peaceful argument, as part of picketing never has been criminal. Since the noble Lord referred to Citrine, perhaps I could refer to his comment in the Third Edition at pages 558 and 561 on Section 2 of the 1906 Act where he says:
"Picketing confined to peaceful persuasion and argument is not and never has been criminal … So far as civil liability is concerned, the section does not appear to alter existing law to any great extent".
In our view, accordingly, the only element of possible doubt is the one to which my right honourable and learned friend the Attorney General referred, in the passage to which the noble Lord, Lord Wedderburn, has referred today; that is, a very technical obstruction of the highway. Accordingly, in our view, substantially the situation is that the existing section in no way affects the criminal law. So far as the civil law is concerned, the existing immunity of Section 13 is the important one. Accordingly, in our view, the Bill as drafted is perfectly adequate to the situation, and to amend it in the way the noble Lord has suggested would be to introduce a very confusing and doubtful element into the statute, giving
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the courts occasion to try and understand why this rather more complicated formula had been adopted. I would invite your Lordships not to accept the amendment.
Lord WEDDERBURN of CHARLTON: My Lords, we are disappointed at this response from the Government at this very late stage. Since the noble and learned Lord referred to it, I have to refer to Citrine. But first I say that the noble Lord produced no argument as to why our amendment would be confusing. Our amendment clearly states in effect that the present law remains the same for criminal proceedings and the Government's new version will apply to civil proceedings. When he cites Citrine at page 561, that is where Citrine is discussing civil liability. When Citrine, at page 569, turns to criminal liability he says:
"It is clear, therefore, that on the one hand the crime of watching or besetting can be committed by an act of short duration, on the other, peaceful picketing may involve an attending of long duration. The right to picket like any other right must be exercised in a reasonable manner. It does not follow that picketing of long duration is unreasonable. It may, for example, be necessary for pickets to wait a considerable time at a place of work for the arrival or departure of blacklegs".
All of this is in the context of watching or besetting, which he begins with in that passage, and he is clearly contrasting the effect of the statute upon the crime of watching or besetting. It is very disappointing that the Government will not move on this. I hope it is not indicative of their approach to these amendments this afternoon, the last time we can really seriously consider these questions. We shall not divide on this amendment, but we shall not withdraw it.
On Question, amendment negatived.
3.8 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 38:
Page 18, line 27, leave out from ("union") to end of line 28 and insert ("or of a worker whom he has been elected or appointed to represent.")
The noble Lord said: My Lords, in moving Amendment No. 38, I should like to speak also to Amendment No. 40, which is very closely related to it. This, of course, is the amendment concerning the position of the trade union official on the picket line, especially the position of the district official or the multi-union

1029
official, and most particularly the convenor of shop stewards. We sought to argue at Committee—and I thought that we had some support, most notably from the noble Baroness, Lady Seear—that in the real world trade union officials, full-time trade union officials and convenors of shop stewards, do not constitute part of "rent-a-crowd". They do not go about handing out union authority and badges in large numbers to temporary people in order to flood picket lines and create mass pickets or flying pickets or things of that kind. As I say, I thought we had a considerable degree of support in some parts of the House when we sought to argue that the Government are wrong in linking with their (from their point of view justified) provisions in Clause 16—the desire to limit numbers on the picket line, and in particular the desire to exclude workers who have no direct involvement in that particular site— with the position of trade union officials, especially full-time officials and convenors.
At the moment, Clause 16(1) confines the trade union officials' legal rights on the picket line to those officials who are accompanied by a member whom he represent. Unless a trade union official is accompanied by a member whom he represents, his presence on the picket line constitutes a ground for action. We have argued that Clause 16(4) further makes it clear that if a district official is on a picket line he should be on the picket line in his particular district. Moreover, as the noble Baroness said when this matter was discussed last time, if, for example, a convenor of shop stewards—who might be a member of the Transport and General Workers Union, but might be appointed by a shop stewards' committee to represent them and, through them, all the workers in the plant or perhaps at a neighbouring plant—appears on the picket line where there are not members of necessarily his own union but, for example, members of the AUEW, then once again the existence of that full-time or lay official on the picket line constitutes a cause for action.
We say that that puts in jeopardy the very important role which, in the real world, is played by local trade union officers, by branch secretaries—particularly branch secretaries of geographically based branches—and by multi-steward convenors To some extent this point was admitted,
1030
as I have said, by a number of noble Lords who spoke. Nevertheless, we did not receive a satisfactory answer from the Government at that time. The noble Earl, Lord Gowrie, said at column 630 of the Official Report for the 12th June:
"I said in my earlier remarks, which I am quite happy to repeat, that we recognise the contribution to good order during picketing which union officials can make. There is absolutely no disagreement between us about that. But, obviously, we have had to see that there cannot be a kind of industrial relations equivalent of the Western movie, whereby the sheriff can pick a star out of his pocket and pin it to the bosom of whomsoever he fancies wishes to join in the posse, because that would—to continue with the Western metaphor—drive a coach and horses through the otherwise sensible provisions of the clause".
I suggest that that is to confuse BBC2 with ITV! It is enough to make one despair of a Government's understanding of how pickets actually work. He went on to say, incorrigibly as ever:
"Taking the point made by the noble Baroness, Lady Seear, my advice is that the convenor can picket, if he is a member of the same trade union as the picket, at any factory for which he is responsible. Therefore, it seems to me that he does get in on the act".
The noble Baroness, Lady Seear, replied:
"I am sorry to interrupt the Minister, but I cannot have made my point clear …"—
—and this is absolutely right.
"The convener himself may belong to union A whereas, as convenor, he speaks for a whole group of unions. Therefore, if he wants to control order then, technically, under the Bill as it stands, and not as I think is intended, he would not be able to picket alongside people involved in the picket of the establishment who were in a different union from the union convenor. That is the point that I am trying to make".
That is the point that we are trying to make, and that is the point that is made in our amendment.
The Government in no way took the point at the time and as a result nothing came of this. Therefore, we have put down this modest and, I hope, helpful amendment. It would allow full-time trade union officials and shop stewards, particularly multi-union shop stewards, to attend where their union members were involved, and it would allow convenors to attend where appointed to represent members of other unions. The precise intention of the clause is to allow these two somewhat restricted groups of people slightly more access to the picket lines than they have at present in the conviction that the role of full-time trade union officials and senior shop stewards

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on picket lines is essentially to control them, to keep them within the law and that the Government who want to change the law should not want to rule them out.
The MINISTER of STATE, DEPARTMENT of EMPLOYMENT (The Earl of Gowrie): My Lords, I am glad that in the opening few sentences of the remarks of the noble Lord, Lord McCarthy, "rent-a-crowd" was formally deemed to exist. I have again listened most carefully to the arguments of the noble Lord. He said that he would return to this issue, and he returned to it along very much the same lines as we debated fully in Committee. I also acknowledge that there is some common ground between us. We are agreed that trade union officials should be able to attend on picket lines and that their attendance can have a beneficial effect on the conduct of the picketing. The noble Lord quoted me as being in agreement with him on that matter in Committee, and I am glad to repeat the Government's agreement again now. We differ as to which officials should be allowed to attend. Noble Lords opposite wish to allow almost any trade union officials to picket, regardless of their interest in the particular dispute. We are concerned—indeed, the whole thrust of the bill is concerned—to limit picketing to those trade union officials who have a direct interest in the dispute because members of their union whom they formally represent are picketing.
When we debated these matters in Committee, I said that I would look again at the clause in the light of comments made by noble Lords opposite and by the noble Baroness, Lady Seear, about the effect on convenors in multi-union establishments. As the clause is drafted, the position is this. A convenor may picket at any of the sites for which he is responsible where members of his own union, whom he represents, are picketing lawfully. He may also picket at his own place of work, whether or not he is accompanying members of his own union. In our view, that will cover most of the circumstances in which a convenor might legitimately be expected to attend a picket line.
Of course, I realise that there may be a few occasions on which a convenor
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will not be able, because of Clause 16, to join on a picket line, workers whom he represents, particularly where the picketing is being carried out at a plant which is not his own place of work, by members of another trade union for whom, as convenor of shop stewards, he has some—although I should say some indirect—responsibility. Such cases will, in our view, occur only very rarely. In most cases the convenor of shop stewards would neither want nor expect to picket on a picket line composed entirely of members of another union altogether. If he has any part to play in such a picket, it will surely be to arrange for the appropriate shop steward who is a member of that picket's union and who represents those pickets, to attend on the picket line in order to ensure that the picketing that is taking place is peaceful and orderly.
There is nothing in the clause to prevent him from getting in contact with the shop steward in that way. He can have, and very probably will have, as befits a convenor, an important "backroom" role in organising and co-ordinating, in answering queries, liaising with the authorities and keeping men on the picket line up to date with negotiations through their representatives. The only proviso here is that the picketing he organises must be lawful. If he organises unlawful secondary picketing he may be liable to be sued.
If we were to accept these amendments they would, of course, go far beyond allowing the convenor more scope to picket. They would allow any official of a union to picket at or near the place of work of any member of the same union whether or not he represented those members and whether or not they themselves were picketing. They would also allow an official of a union to picket the workplace of any worker whom he had been appointed or elected to represent, whether or not that worker was himself picketing.
I shall not go over again all the reasons why we believe that such a position would be unacceptable. I particularly do not need to do so because the image I used—the Wild West image which was admittedly a light one—seemed to us to show the reason behind the unaccept-

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ability of this provision and the noble Lord, Lord McCarthy, was kind enough to repeat today what I said on that occasion. It is enough for me to say that it would create scope for mass picketing by union officials—whether real or bogus —about which real fears have been expressed and which we specifically sought to guard against. I believe that the clause as presently drafted provides enough scope for union officials to join picket lines and to ensure that the picketing is properly conducted. Therefore, I ask noble Lords to reject the amendment.
Lord LEE of NEWTON: My Lords, I should like to give the noble Lord an instance of where that can happen. At one time I happened to be the convenor of AUEW shop stewards in a huge factory of some 27,000 people. I was also the chairman of the works committee which embraced 10, 12, or 14 trade unions. When the negotiations in a dispute reached the highest level with top management I took all those disputes, irrespective of the union from which they came. Therefore, if it was a disagreement, the end product was the result of my negotiation.
If this amendment is accepted, it would have permitted me—I am talking from personal experience—to join those on a picket line whose case I had personally argued with management. Unless this amendment is accepted, I should have been debarred from going on to the picket line to reinforce an argument and a negotiation which I personally had conducted.
3.21 p.m.
The Earl of GOWRIE: My Lords, with the leave of the House, perhaps I could answer the point made by the noble Lord. First, I am in no sense trying to blackball the noble Lord, Lord Lee, for joining pickets, but there is serious concern about the numbers involved in picket lines and some limitation has to be derived where union officials are concerned, or one could get a proliferation of officials in the undesirable way that I described.
In the case which the noble Lord, Lord Lee, presented to us, surely it would not be beyond his capabilities—indeed, it would be the most likely and appropriate way for him to act in that situation—to contact the relevant shop stewards and
1034
give them his instructions accordingly. There is a Medea-like mythology in the union movement that in some ways members of unions are cut off from modern methods of communication, which is not true at all.
Viscount MASSEREENE and FERRARD: My Lords, the noble Lord, Lord McCarthy, has given the impression that, the more union officials who picket, the more order there is. Noble Lords may remember the winter before last when busloads of union officials came down from the North to the South, and the picket lines were crowded with union officials. I was present at two such picket lines out of curiosity. So far as I could see, there was absolutely no order at all; there was great disorder.
We cannot accept this amendment; we must limit picketing. I should like to ask my noble friend Lord Gowrie a question. So far as I can see, it is nowhere defined in the Bill what "near your place of work" means. Surely there should be a definition, either giving a mileage or some other way. Perhaps my noble friend can help me.
The Earl of GOWRIE: My Lords, my noble friend has asked me a question, so perhaps with leave I could answer it. The concept of attending at or near a place of work has been used in statutes since 1875, and we have no evidence that the courts have had any difficulty in construing it. "At or near" does not mean "on or in". Neither past nor present law, nor this clause, provide any right or immunity for pickets to trespass on private property or commit any other civil wrong or any crime.
Baroness SEEAR: My Lords, I apologise for not being present at the beginning of the debate on this amendment and therefore, did not hear all that the noble Lord, Lord McCarthy, said. However, I have listened very carefully to what the Minister has said in reply. I hope that I have understood him correctly. Did I understand him to say that the convenor would be able to go on the picket line in his own place of work, although it might not be the picket line manned by people of his own union? Was the noble Earl saying that the convenor would not be able to go on the picket line of a union

1035
of which he was not a member in some adjacent or related dispute elsewhere?
The Earl of GOWRIE: My Lords, I shall gladly try to clear up this point. Under the clause as we have drafted it, the position is that a convenor may picket at any of the sites for which he is responsible where members of his own union, whom he represents, are picketing lawfully. He may also of course picket at his own place of work, whether or not he is accompanying members of his union. Our view was that that would cover 90 per cent. of all the likely cases that would apply.
Baroness SEEAR: My Lords, with the leave of the House, could the Minister not look again at the possibility of the convenor being able to picket not only immediately in his own place of work? —which is what I understood the Minister to say; because, of course, nobody is in a better position to know what management is thinking and what management's problems are than the convenor. He has the closest contact with management. It is much more likely that the convenor will be able to convey the correct story and the correct impression than if he has to pass it through another shop steward. We all know that as a message passes from person to person something is added or subtracted, and it is a very different story that arrives on the line. The convenor is by far the best informed person, and I suggest that it is in the interests of industrial peace to enable him to have the fullest possible access to pickets, whether or not the people picketing are directly in his union, because he speaks for all the unions when he is dealing with management.
The Earl of GOWRIE: My Lords, I do not want to trespass on the conventions of Report and I have asked for the leave of the House rather often, but I can, in fact, answer the point made by the noble Baroness, Lady Seear, so perhaps the House would allow me to do so. As well as being able to operate through a shop steward on those—in our contention—very rare events when the convenor would not be allowed to attend the picket line under the Bill, he could, if it were that important, of course arrange to attend simply by,
1036
ensuring that a member of his own union was present at the picket line.
Lord McCARTHY: My Lords, I wonder whether noble Lords on the other side of the House have any idea of the sense of despair which they send to us when they make speeches of that kind. We have never denied that there are people on picket lines who do not want to maintain order. We have never denied that there are "rent-a-crowds"; we have never denied that there are people interfering in industrial disputes for their own purposes.
We are saying that, in the main, those people in this country—thank God!—are not full-time trade union officials; that, by and large, full-time trade union officials are trying to prosecute disputes and reach settlements and so, overwhelmingly, are full-time convenors of shop stewards. If the Government really want to ban from picket lines people of that kind, they have nobody but themselves to blame if in the next winter of discontent they get more trouble than we had in the last winter of discontent. It really is despairing for the noble Earl to tell us that shop stewards, convenors and branch secretaries should ring up people. Have you ever tried to ring up a shop steward? Have you ever tried to find a full-time trade union official in his office? There are very few—pathetically few—of these people about. If their progress around picket lines is to depend upon them contacting each other in advance, then I say to noble Lords opposite that they do not understand the first thing about the way in which industrial relations actually operate on the shop-floors of this country.
The noble Earl has given us nothing on full-time trade union officials; he has given us nothing on the question of geographical branch secretaries. Despite all the pleadings of the noble Baroness, he has given us nothing on the very real point which she makes about convenors. It is not only convenors who are multi-union shop stewards; simple, ordinary shop stewards are multi-union shop stewards, and they will be subject to the same restrictions. All we have in answer to these very reasonable and helpful points are, quite frankly—and I say this with great sincerity —jokes about trade unions being wild west shows, attempts to conflate David Basnett with John Wayne and the "Gunfight at the OK Corral". To us this is much too

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serious to be joked about in this way and we intend to press this amendment to a Division.
3.29 p.m.
On Question, Whether the said Amendment (No. 38) shall be agreed to?
Their Lordships divided: Contents, 95; Not-Contents, 147.

CONTENTS

Aberdeen and Temair, M.

Galpern, L.

Phillips, B.

Amherst, E.

Gardiner, L.

Ponsonby of Shulbrede, L.

Amulree, L.

Gladwyn, L.

Rhodes, L.

Aylestone, L.

Gordon-Walker, L.

Ritchie-Calder, L.

Balogh, L.

Goronwy-Roberts, L.

Rochester, L.

Banks, L.

Greenwood of Rossendale, L.

Ross of Marnock, L.

Beswick, L.

Grey, E.

Sainsbury, L.

Birk, B.

Hale, L.

Seear, B.

Blease, L.

Hampton, L.

Sefton of Garston, L.

Blyton, L.

Hatch of Lusby, L.

Shinwell, L.

Boston of Faversham, L.

Henderson, L.

Simon, V.

Bowden, L.

Heycock, L.

Soper, L.

Broadbridge, L.

Houghton of Sowerby, L.

Stedman, B.

Brockway, L.

Hunt, L.

Stewart of Alvechurch, B.

Brooks of Tremorfa, L.

Jacques, L.

Stewart of Fulham, L.

Bruce of Donington, L.

Janner, L.

Stone, L.

Buckinghamshire, E.

Jeger, B.

Strabolgi, L.

Burton of Coventry, B.

Kaldor, L.

Strauss, L.

Byers, L.

Kilmarnock, L.

Taylor of Blackburn, L.

Chitnis, L.

Leatherland, L.

Taylor of Gryfe, L.

Clancarty, E.

Lee of Newton, L.

Taylor of Mansfield, L.

Collison, L.

Leonard, L.

Underhill, L.

Crowther-Hunt, L.

Listowel, E.

Wallace of Coslany, L.

Darling of Hillsborough, L.

Llewelyn-Davies of Hastoe B. [Teller.]

Walston, L.

David, B.[Teller.]

Wedderburn of Charlton, L.

Davies of Leek, L.

Lloyd of Hampstead, L.

Wells-Pestell, L.

Davies of Penrhys, L.

Lovell-Davis, L.

Whaddon, L.

Donaldson of Kingsbridge, L.

McCarthy, L.

White, B.

Elwyn-Jones, L.

MacLeod of Fuinary, L.

Wigoder, L.

Foot, L.

Morris of Grasmere, L.

Winstanley, L.

Fulton, L.

Oram, L.

Wootton of Abinger, B.

Gaitskell, B.

Peart, L.

Wynne-Jones, L.

NOT-CONTENTS

Ailesbury, M.

Cromartie, E.

Gowrie, E.

Alexander of Potterhill, L.

Davidson, V.

Gray, L.

Allerton, L.

de Clifford, L.

Gridley, L.

Alport, L.

De Freyne, L.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Ampthill, L.

De La Warr, E.

Auckland, L.

De L'Isle, V.

Halsbury, E.

Avon, E.

Denham, L.[Teller.]

Hankey, L.

Balfour of Inchrye, L.

Digby, L.

Hanworth, V.

Barnby, L.

Dormer, L.

Harris of High Cross, L.

Bellwin, L.

Drumalbyn, L.

Hatherton, L.

Belstead, L.

Duncan-Sandys, L.

Hawke, L.

Berkeley, B.

Dundee, E.

Hayter, L.

Bessborough, E.

Effingham, E.

Henley, L.

Birdwood, L.

Ellenborough, L.

Hill of Luton, L.

Boothby, L.

Elliot of Harwood, B.

Hillingdon, L.

Boyd-Carpenter, L.

Ely, M.

Hives, L.

Braye, L.

Energlyn, L.

Holderness, L.

Brentford, V.

Fairfax of Cameron, L.

Home of the Hirsel, L.

Bridgeman, V.

Faithfull, B.

Hood, V.

Brookes, L.

Falkland, V.

Hornsby-Smith, B.

Campbell of Croy, L.

Ferrers, E.

Ironside, L.

Carrington, L. (A Principal Secretary of State.)

Ferrier, L.

Kemsley, V.

Fraser of Kilmorack, L.

Kimberley, E.

Chelwood, L.

Gage, V.

Kinloss, Ly.

Clifford of Chudleigh, L.

Gainford, L.

Lauderdale, E.

Clitheroe, L.

Geoffrey-Lloyd, L.

Lindsey and Abingdon, E.

Clwyd, L.

Gisborough, L.

Liverpool, E.

Cockfield, L.

Glenkinglas, L.

Long, V.

Cork and Orrery, E.

Godber of Willington, L.

Luke, L.

Craigavon, V.

Gormanston, V.

Lyell, L.

MacAndrew, L.

Porritt, L.

Spens, L.

McFadzean, L.

Rathcreedan, L.

Stamp, L.

Mackay of Clashfern, L.

Rawlinson of Ewell, L.

Strathclyde, L.

Macleod of Borve, B.

Renton, L.

Strathmore and Kinghorne, E.

Mais, L.

Richardson, L.

Strathspey, L.

Marley, L.

Robens of Woldingham, L.

Swinton, E.

Massereene and Ferrard, V.

Rochdale, V.

Thorneycroft, L.

Milverton, L.

Romney, E.

Torphichen, L.

Monson, L.

Rugby, L.

Trefgarne, L.

Montgomery of Alamein, V.

Sackville, L.

Trenchard, V.

Mountgarret, V.

St. Aldwyn, E.

Trumpington, B.

Mowbray and Stourton, L.

Saltoun, Ly.

Vaizey, L.

Murton of Lindisfarne, L.

Sandford, L.

Vaux of Harrowdean, L.

Northchurch, B.

Sandys, L.[Teller.]

Vickers, B.

Nugent of Guildford, L.

Seafield, E.

Vivian, L.

Nunburnholme, L.

Seebohm, L.

Ward of Witley, V.

Onslow, E.

Sharples, B.

Westbury, L.

Orkney, E.

Skelmersdale, L.

Widgery, L.

Orr-Ewing, L.

Soames, L. (L. President.)

Young, B.

Piercy, L.

Somers, L.

Resolved in the negative, and amendment disagreed to accordingly.

3.40 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 39:
Page 18, line 28, at end insert—
("; or
(c) at or near the place of work of a worker who is a party to a trade dispute to which he is a party.").
The noble Lord said: My Lords, this amendment raises the question, which again was raised in a considerably wider way on Committee, of who can attend at the place of work so far as the picketers are concerned and not so far as the trade union officials are concerned. The House will remember that at the Committee stage of the Bill I moved Amendment No. 77B which sought somewhat to widen, as I said, those who were permitted to picket on the picket line by adding three groups: those in a common trade union; those who were party to the same dispute; and those who were picketing employers who were supporting the original employer.
I argued on that occasion that this was an attempt—I think that this was the first time that I actually used the phrase in this debate—to separate off what I called at that time "rent-a-crowd" from people who might be thought to have a legitimate interest in the dispute. But the House will remember that this did not find general favour. The noble Lord, Lord Mottistone said on 12th June at column 609:
"The noble Lord, Lord McCarthy, phrased his case very delicately and tried plausibly to impress us. He spoke about widening slightly' and then 'widening somewhat', which was getting nearer the case. I would say that he is driving a great big hole through the entire clause …".
The noble Earl, Lord De La Warr, said:
"I wish to support my noble friend, who referred to the extraordinary use of the adverb 'slightly'. My noble friend dealt with the point adequately, but I ask your Lordships' Committee to consider what would happen"—
and this was a point made frequently on the other side—
"if one of the mass membership unions, a union with a membership of seven figures, were involved in a matter of this kind. God bless my soul! it could be the secondary picketing of all time".—(Official Report, 12/6/80; Col.609.)
At that point the noble Lord, Lord Boyd-Carpenter, said:
"I want to ask the noble Lord whether he will confirm what seems to me to be the quite extraordinarily possible, but no doubt intended, effect of his amendment … But am I right in reading the noble Lord's amendment as, if adopted, making lawful, where there is a dispute at, say, one plant, attendance by way of picket of any member of any of the great major unions that may be involved?"—(Col.613.)
We sought to show that that is not the way that the great major unions of this country operate; that 2 million members of the Transport and General Workers' Union do not turn up on picket lines; that in most strikes that I know about there is an acute shortage of picketers, especially when it is raining. On the whole, the British do not demonstrate when it is raining. That may be why we are a rather peaceful country. We also despair, however, of proving this to noble Lords opposite, and proving to them why some of our other gateways should be allowed, and therefore we have narrowed the question down in this small amendment to a relatively narrow area.
We are trying to say that just one of these three gateways should survive—those who are parties to the same dispute.

1041
This would not bring 2 million members of the Transport and General Workers' Union plodding to the picket lines. It would simply bring those who might be involved in a, say, national dispute from one, say, plant to another. It would just bring, say, those who might be involved with the same employer in another plant in the same parts of the town. It would be, I would say to noble Lords opposite, a relatively modest thing to do.
I must just say that we put these proposals forward not simply because we think they are reasonable but because we have a sincere desire although I do not expect all noble Lords opposite to accept this—for Acts to be observed; for trade unionists, like other people, to obey the law when the law is promulgated. But there must be a relationship; there must be something reciprocal. Those laws must, at the end of the day, have some relationship to what ordinary people do and how ordinary people feel. To deny trade unionists the right to go on the picket line when they are in a common dispute in a common group of employers we think is not only unjustifiable, it is also impractical, and not only will it bring trade unions into disrepute if they break the law as a result of it; it will bring the law into disrepute, too. Therefore, for that additional reason we commend this amendment to the House.
3.46 p.m.
The Earl of GOWRIE: My Lords, once again noble Lords opposite are attempting to weaken the effect of the clause and open up the scope for secondary picketing which we are trying to outlaw. In doing so it is our view that they are going against the feelings and better judgment not only of this House but of the vast majority of people in this country, including a very large majority of union members.
I have listened to a number of pleas from noble Lords opposite asking me for greater clarity in this Bill. But, far from clarity, this amendment, were we to accept it, would, I believe, create great confusion about who could picket and where. The decision would turn on what is meant by the phrase "a worker who is party to the dispute". At the extreme it could mean that where there was a dispute between an employer and a
1042
union any other members of that union could be regarded as parties to the dispute. If that proved to be so, it would mean that any members of the union could come along and picket. In other words, the scope for secondary picketing would be very wide indeed. It would be marginally less wide than it is now, but it would be infinitely more wide than we are seeking to define. We should be back almost to where we are at present, with workers being able to picket wherever members of their union were in dispute.
Noble Lords opposite have argued that that kind of secondary picketing—which they term "borrowed strength"—is a traditional part of trade union activity. Surely that has been used too often in the past as an excuse for people who have nothing to do with the dispute to turn up simply to cause trouble on the picket line and to intimidate those who are only seeking to go on working normally. It has also been argued that the clause as drafted prevents members of a union from demonstrating their solidarity with other members of their union who are on strike. My answer now, as it has been on the other occasions when this argument has been pressed, is that there are more acceptable methods of demonstrating solidarity.
The Bill does not affect the right to demonstrate or protest, or to give financial aid, or to lobby Members of Parliament or even to lobby Members of your Lordships' House. The risks inherent in allowing scope for large numbers of secondary pickets to gather physically, with all the attendant danger of disorder and intimidation that that may bring, are in our view much too great. We feel that the people of this country, including, as I said before, most trade unionists, have stated clearly that they do not any longer wish to be at risk in this way.
When we discussed a similar amendment in Committee on 12th June the noble Lord, Lord McCarthy, said at column 610:
"sometimes it is extremely difficult to get anyone to picket".
And therefore "stranger" pickets might come, or be sent, to fill that gap.
But if workers are not prepared to picket in their own cause we see no reason

1043
why others, whether from the same union or not, should be allowed to picket instead of them. Surely the test must be whether the workers in dispute are prepared to picket at their own place of work in support of that dispute because they feel sufficiently strongly about it. If they do not feel strongly enough about it, how can it possibly be justified to allow pickets to be brought from elsewhere to do the job which those immediately concerned are not prepared to do themselves?
This amendment is one of a long line of amendments which the Opposition have tabled, both here and in another place, to weaken the effects of this clause and to leave scope for the kind of secondary picketing which we are seeking to restrict. It is particularly unacceptable because it would leave considerable uncertainty as to what limits the Bill is in fact placing on secondary picketing. For those reasons, I must advise noble Lords to reject this amendment.
Lord McCARTHY: My Lords, the noble Earl is ceasing to surprise me; he is fencing with us now. He knows very well, if he has certain objections to the construction which might be put on the words we have proposed in the amendment, that we are simply asking for a commitment in principle. There may be other ways of phrasing what we propose in order to rule out certain ambiguities. The great majority of people coming from outside in recent disputes would have been ruled out; for example, they would have been ruled out in the case of the flying pickets in 1972 and 1974, and picketers coming from the private sector of the steel industry would have been ruled out earlier this year. It is no good just talking about the groundswell of opinion, although on the issue of groundswell and whether one can legislate by groundswell, we shall discuss that when we come to Amendment No. 45. In the meantime, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 40 not moved.]
3.52 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 41:
Page 19, line 13, leave out ("picketing") and
1044
insert ("attending for the purpose only of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working").
The noble Lord said: We come back to a matter which we raised in Committee but which was left somewhat unsatisfactorily, partly because the noble and learned Lord the Lord Advocate pointed out that the amendment we were then moving might not have the consequences we desired. So we have tried again. The issue is the definition of activity which will deprive those who are picketing in the wrong place of the immunities and protections which alone give trade unionists their rights in this country under Section 13 of the 1974 Act. The civil liabilities will apply to what? According to the Bill now, under subsection (2) they will apply to
"an act done in the course of picketing … unless it is done in the course of attendance declared lawful by section 15".
At first sight, the fact that two different words are used—that the basis of liability is an act done in the course of picketing as compared with where the protection arises, unless it is done in the course of attendance declared lawful by Section 15—may not seem very important, but it is, both in law and in practice, a matter of great importance. Noble Lords who heard the noble and learned Lord the Lord Chancellor yesterday give the Latin tags which make the point I wish to make will remember that one of the effects was that where two different words were used by the draftsman, especially in the same subsection, the presumption would be that some difference of meaning was intended, at any rate some slight difference of meaning, because had he meant exactly the same thing he would have used the same words. That is why we suggest that the clause, to accomplish the Government's purposes clearly, should refer to an act done in the course of
"attending for the purpose only of peacefully obtaining or communicating information or peacefully persuading".
That would define it in the normal way, because that is the term of art in the law which, since 1875, has been the term of art to describe picketing.
The word "picketing" has never been used in a statute, and although it has been used in a few cases, it has never become a legal term of art and it is not defined in the

1045
Bill. Indeed, the noble and learned Lord the Lord Advocate in Committee referred me to the Shorter Oxford English Dictionary meaning of "picket", but he did not cite what it was; when I looked it up, in view of our previous amendment about watching or besetting, I realised why he had not done so, for the Shorter Oxford English Dictionary defines the noun "picket" as:
"A man stationed by a trade union or the like to watch men going to work",
and the verb "picketing" as:
"To beset with pickets";
so perhaps watching and besetting is rather important in this area.
The point is that there is a variety of practices which go alongside what is normally known as attendance by way of peaceful picketing, and it appears that the Government, by insisting on using a different word in subsection (2) will, at the very minimum, leave it open to the courts to give a wider meaning to the word "picketing" than to attendance for "the purpose of peacefully persuading". Indeed, that seems quite obvious, and noble Lords may ask, "What sort of examples are there?" There are a number of practices whereby those who wish to inform others of a trade dispute may go along but not stay there all the time; they may leave placards and messages. There are various practices, sometimes known as "ghost picketing", which often involve placards. In Committee, when moving the amendment to the form of which the noble and learned Lord the Lord Advocate drew objection, I raised this particular practice and asked whether it would or would not be picketing under subsection (2), but we did not receive an answer.
The noble Earl, Lord Gowrie, said that what the Government want above all is clarity, but what they in fact have in subsection (2) is a lack of clarity because we all know what attendance for peaceful purposes—the term of art meaning picketing—means; "attendance" is the term of art. However, we do not know what the courts will make of the word "picketing". We cannot say unless it is defined in the Bill, and it is not. If it were defined in the Bill, I presume it would be defined as:
"attending for the purpose only of peacefully obtaining or communicating information or
1046
peacefully persuading any person to work or abstain from working".
That is what is normally meant by it. But it is not defined in the Bill and if the Government want clarity they will accept the amendment. If they want a lack of clarity and a slight obscurity which may become very important in court proceedings, they will leave the clause as it stands. On those grounds, I beg to move.
Lord SHINWELL: As this is not a private fight, my Lords, I suppose we can all join in. I shall be surprised if the Minister refuses to accept the amendment. I have a confession to make; I have often picketed. Indeed, with me it goes back a very long way. When T heard my noble friend Lord Houghton of Sowerby speaking of his long experience of matters of this sort, it occurred to me that I might mention recalling the picketing that took place as far back as what was called the tanners' dispute in 1889, when Robert Cunningham, the descendant of Scottish kings, joined with Ben Tillett, the famous orator and leader of the dockers, and John Burns, who subsequently became a member of the Liberal Government of 1906 and in the course of doing so decided to leave the Labour Party. I was only five years old at the time, so I am speaking from hearsay or narratives I have subsequently read in order to inform myself about trade union matters.
I have even had experience of mass picketing, which I think I invented in 1919, and perhaps your Lordships will permit me to say what actually occurred. A vast number of men were demobilised from the forces in 1918 and there was huge unemployment. The situation of those men, who had served the country to the best of their ability, created much sympathy among the people, even in political circles. Noble Lords opposite may be surprised when I tell them that one of the most famous and sympathetic propagandists on behalf of those unemployed men was Sir Edward Carson. I have the quotation from Sir Edward Carson in my files. Sometimes I have used it. He was so disturbed at the situation of those men that he protested to the Government of the day about the situation.
What was the purpose of the dispute at that time? It arose because of the vast unemployment which in the opinion of several of us, myself included, could only

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be dealt with—we could not expect a complete solution—by reducing the hours of labour. At that time, on average the hours of labour were about 58, and we sought to reduce them to 40 per week in the hope of absorbing the unemployed men, particularly those who were demobilised.
As a result, we had to resort to picketing and I recall the first mass picketing that took place, outside the premises of the Fairfield Shipbuilding Company. Now I think it is the Clyde Shipbuilding Company, or something of that sort. It was perhaps one of the most famous shipbuilding companies in the United Kingdom. As chairman of the strike committee responsible, or the 40-hour committee it was called—not the strike committee, we were not on strike—we decided to ask as many unemployed ex-servicemen as possible to attend outside the premises of the Fairfield Shipbuilding Company in Govan, Glasgow, in order to persuade the artisans not to return to work.
In those days there was an engineering section in that shipbuilding yard. I can recall the engineers, the artisans, the aristocrats of labour. I remember them in particular because they wore hats at an angle of 45 degrees in order to indicate their superiority over the ordinary labourers. The police did not interfere, they allowed it to go on. It was a demonstration; it was successful. The men who wanted to go to work were eventually permitted to do so. But that was mass picketing.
In this Bill there are references to the possibility, even the probability, of some pickets who act unlawfully being either fined or sent to prison. I regret to say that as a consequence I found myself a guest of, at the time, His Majesty, in one of his institutions, first of all before my father was able to find enough money to bail me out, for 2½ months, and then for five solid months in Calton gaol in Edinburgh. What for? The indictment was that I had incited to riot. In point of fact all that I was doing was asking people to demonstrate in order to provide ex-servicemen with employment, by reducing the hours of labour. That was it. So one can understand how mistakes occur. Anyway, I can speak with some
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authority on the subject. It was not the first indication of mass picketing. Mass picketing took place over the match girls' strike in the East End of London, led by the famous Annie Besant who, as most of you will be aware, indulged in reading the various periodicals particularly on theosophy on which she became an expert.
I have already said I should be surprised if this amendment is rejected because of the language being used. What my friends are asking for is that the word "picketing" should be eliminated. I want to see it eliminated. I should like to hope that it is never used again. I should like to hope that instead of indulging in debates on these matters about picketing, we should indulge in a debate in order to prevent strikes occurring at all, in order that there should be no picketing. That would suit me much better. After all, what is the whole purpose of this Bill? To improve industrial relations. We have been trying to improve industrial relations for a century, and look at what has happened in your Lordships' House. We are discussing some of the items which are trifling, mere trivia, about who should attend in order to prevent people from returning to work.
I am concerned about the language of this amendment. May I be permitted to read it again in order that it should be clearly understood so that we know what is being talked about? What is being asked is this:
"leave out ('picketing') and insert"—
note the language—
"('attending for the purpose only of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working')".
Notice what we have already done. In the previous amendment which was defeated by a large majority, we decided that only certain persons would be allowed to picket. If somebody sought to picket and was regarded as being unlawful, he could be fined or even sent to prison. Even the question of whether a trade union official should be allowed to picket was questioned. But the answer given by the noble Earl, Lord Gowrie, or by the Lord Advocate, I thought was satisfactory. In lieu of a trade union official, a shop steward or someone of the sort could attend. But we have decided that certain people will not be allowed to picket.

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That is settled as far as your Lordships' House is concerned.
Well, that being so, now that we have decided about that and decided that if anybody unlawfully pickets he will be dealt with in the terms of the Bill, then it seems to me we could now use language which we can all accept, namely, eliminate the word "picketing" and talk about peacefully persuading. If anybody fails to be peaceful in his persuasion, he can be dealt with according to the law.
Therefore, I would ask the noble Earl, Lord Gowrie, if he does not mind, to apply himself as I know he can, logically and objectively; that is the point—objectively. Let us dismiss for the moment any kind of partisanship or trying to weaken the trade union movement, which I do not believe can be done by means of legislation. The party opposite have tried it over and over again; nobody knows more about that than the noble and learned Lord the Lord Chancellor. The judiciary have tried it, employers have tried it, and even trade union leaders by their efforts have nearly succeeded in doing it. Now is the time to insert language which we can all accept and for us hope that it can be implemented.
What sort of answer are we going to get? I hope we get a satisfactory answer, because for these words to be included makes all the difference in the world. Responsible and respectable trade unionists will accept that, and I hope will do all they possibly can, within their limitations and capabilities, to see that it is made a success.
4.10 p.m.
The LORD ADVOCATE (Lord Mackay of Clashfern): My Lords, as has been said several times, the object of the Bill is to improve industrial relations, and if striking out the word "picketing" from the Bill would have that effect, certainly we should be happy to consider such a proposal. But the formula that is being proposed by noble Lords opposite to replace our word "picketing" has been in this kind of legislation for some time, and, unfortunately, at least until now, it has not brought improvement to the industrial relations scene, as the noble Lord, Lord Shinwell had asked for.
We felt that it was appropriate to use the word "picketing" in this context
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because it is a word of the English language which is well understood and which describes precisely the activities in respect of which we wanted to limit the immunity provided by Section 13 of the 1974 Act. We were advised that to use the phraseology that has been suggested might mean, for example, that the immunity of Section 13 was withdrawn from a person who came from another workplace simply to address a meeting of colleagues at another factory. So our only purpose in using the word "picketing" was to prevent the clause having an impact on activities which no one would regard as picketing, and which otherwise might be affected by the clause. We had rather hoped that we might receive some credit for this from noble Lords opposite, but instead they seem to suggest that the clause might catch activities which no one intends that it should.
I must confess that we find it a little difficult to be too alarmed about the "ghost" picketing suggestion to which the noble Lord has referred. It does not seem to us that the leaving of a placard or a notice at the entrance to a workplace will usually be a great deterrent to workers going into work or will prove a great threat to the employer's business. Furthermore, we do not think it likely that an employer confronted with a placard will run off to the court to obtain an interdict. He will be more apt either to remove the placard, or to turn it back to front, so that no one can read it.
Accordingly in our view the word "picketing" is a perfectly appropriate word to use in this context. The Shorter Oxford Dictionary refers to the word as applying to men, not to placards. The word has been used in an injunction by the court in the Torquay hotel case. Surely the words used in an injunction are the words which are strictest of all. There the greatest of all standards of precision is required. So if the word was used by the court in an order, it is a perfectly precise word to use here. Therefore we consider that the clause as drafted is preferable to that suggested by the amendment, and we invite the House to agree with us.
Lord WEDDERBURN of CHARLTON: My Lords, the points that the noble and learned Lord has just made were I think paralleled by his remarks in Com-

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mittee, when I gave my answers to them. Therefore I shall restrict myself to saying two things. First, I am a little surprised that the long and great experience of these matters by my noble friend Lord Shinwell does not cause the Government just a little more hesitation in the course that they are taking, and that my noble friend's view, from the practical end of his long experience, in favour of greater clarity has not made the Government think again. I believe that this view will be paralleled by many trade unionists who will fear the imprecision that is left, because it goes not only to liability in damages, but also to what are widely regarded as the rather unjust procedures of the interim or interlocutory labour injunction.
However, instead of replying extensively to the noble and learned Lord, I simply say that trade unionists will not comprehend the desire of the Government for the improvements that they want with their formulae when they leave a formula of this imprecision on the statute book. In the interests of time, we shall not divide on each of the matters with which we disagree with the Government, but we shall not withdraw the amendment.
On Question, amendment negatived.
[Amendments Nos. 42 to 44 not moved.]
4.15 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 45:
Leave out Clause 16.
The noble Lord said: My Lords, I am very much aware that at 4.15 in the afternoon we are at the point in the matinee analogous to the first five minutes of the second act of "The Sleeping Beauty", before the entry of Makarova. I do not want to delay the House because I know that it is wanting to reach Amendment No. 45A and the noble Lord, Lord Spens, and the rest of the "royal family". However, I ask the House to spare just a moment for this amendment, because we wish to register our opposition to the clause as it stands. We move the amendment in sad anticipation of the total failure of the Government to move on all the very modest amendments that we have put before your Lordships at both
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the Committee stage and this stage. Indeed, in order to save time we have not moved one or two amendments of an even more modest disposition, which we despaired of seeing the Government accept.
The fact is that in the absence of a clear definition of what picketing means, or a clear definition of the rights of trade union officials, and in particular of convenors and district officials, and in the absence of any movement on all the other matters for which we have asked, this Government at this moment intend that the clause shall be enacted in precisely and exactly its original form.
Sometimes I think that noble Lords opposite believe that people enjoy picketing. I sometimes think that they believe that for some categories of working people picketing is a kind of day out. However, as we have said repeatedly, the fact is that people picket where, by and large, they consider that it is necessary to prosecute a particular dispute. There is a sense in which picketing is a weapon of the weak. I do not expect noble Lords opposite to accept that. But if you are a member of the National Graphical Associaton in Fleet Street, you do not need to picket. You just go away for a coffee break, tea break, or drink break, 15 or 20 minutes before the trains leave for South Wales. That stops Fleet Street; and you do not need to picket. If you are a member of the National Union of Railwaymen, and you want to be ruthless in the prosecution of your disputes, all you have to do is to get 30 men in central London not to go in and do their jobs as controllers of the key power boxes in central London; and you do not need to picket. By and large picketing is a weapon of those who find that they cannot secure effective action and effective pressure by any other means.
The Government have this curious, queer, simple belief that by granting a right of action to employers who are picketed by off-site pickets, and by restricting the policing functions of trade unions, they will change the picketing behaviour of workers facing industrial disputes in this country. We believe—and we say this with all sincerity at this moment, knowing that we are taking up the time of the House when it wants to get on to very important matters—that

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the effect of this policy will be that there will be fewer trade union officials on picket duty. We believe that, despite all that the Government have said, there will be more risk of involving the police in the naming of individual picketers, even though the chief constables have said that they will not do this. We believe that the Government are placing at risk the lawful picketer who will be in danger of being in association with the unlawful off-site picketers.
All those things we honestly and sincerely believe; and we believe that the Government are acting in that way for two confused reasons. The first is that the Government do not understand—and I fear that at this point I must say that they do not wish to understand—the role of picketing in industrial disputes; and the second is because they appear to be extremely keen to meet what they regard as a public outcry as a result of the events of the winter of discontent.
I say again that it ill behoves the Conservative Party to move into a situation in which it appears to condone government by public outcry. There was a public outcry in favour of pacifism in the 1930s; there is a public outcry in this country, whenever a policeman is shot, for the return of the death penalty; there is a public outcry in this country, whenever a soldier is blown up in Northern Ireland, for the withdrawal of troops from Northern Ireland; there is probably at this time a public outcry (which I personally share, but which I am not suggesting should be taken any notice of) that we should come out of the Common Market; there are public outcries about our nuclear bases; and there are even public outcries about the policy of the Government in relation to our athletes attending the Olympic Games. But one must distinguish between the forces of democracy, persistently and properly expressed, and the ignorance of public opinion and government by public outcry. We consider that this clause rests upon government by ignorant public outcry, and we shall press this amendment to a Division. I beg to move.
Lord RAWLINSON of EWELL: My Lords, all I wish to say, very shortly, is that one is always impressed by the noble Lord when he makes a speech of that kind, but the air of total unreality which is
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engendered by his comments when one reflects upon the situation with which this country was faced only a short time ago is beyond my personal belief.
Baroness BURTON of COVENTRY: My Lords, I wonder whether I might say—and it is not very easy to say it—that I think the Opposition is very mistaken in the line that it is taking on this question of picketing. I believe that throughout the country, quite irrespective of party, there is a very strong feeling that picketing reflects the power of the bully; and I think that this has caused a great deal of fear to people. If one goes back to the various disputes that we have had—and I am making no statements about the merits or demerits of any claims—and to what one saw of the picketing that took place outside Hadfield's, for example, or what took place outside Grunwick, I believe that the presence of so many people, and so many forceful people, brings a fear on ordinary people which is quite undeserved and unmerited.
I do not know what we are going to do about it. I would have hoped that my party would have seen it as their duty to protect people who were the weaker people, or who had less power. It may be a homely illustration, but perhaps I can go back to Grunwick. I am not on the dispute at Grunwick, but perhaps I can go back to that, where we saw those small gardens of those small houses in those streets around Grunwick trampled upon by, what?—10,000 people who had come there by buses. I think that that is wrong, and I do not believe that the people of this country would believe otherwise; and I cannot understand why my noble friends apparently support that action. They would say: "But we do not support it; we do not think that should be done". But I think the whole purpose of these amendments to this clause has been to weaken what the Government wish to do on picketing.
I think this really causes many people a great deal of worry. We have now reached the position, I believe, where the unions, differently from the past because of their greatly increased power, because of the numbers that they have and because of the industrial force that they can wield, do not affect only the profits of the employers but take away from the ordinary people of this country

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the services which they should have and to which they are entitled. To go back again to Grunwick and take a very obvious example, for how long was the postal service for the people who lived in that area disrupted? The ordinary people could not get their letters. That may be a small thing, but I do not think that it is a right thing; and I would have hoped that this side of the House would have been able to go along with that particular matter.
My Lords, I know that my Front Bench are not very pleased about this, but I do not think that one renders any service to one's party, never mind anything else, if one just sits and acquiesces in something which one believes to be wrong. I should like to say to several people in my party—I think it has been obvious from the Division figures and it is obvious from people who have come up to me afterwards and before—that there are a great many people in my party in this House (I cannot speak for another place) who agree with what I say but who are not prepared to get up and say it. I disagree with my Chief Whip, and I say that they do feel as I do because they have told me so. I feel that if more people got up and put this point of view we might make some progress.
That is why I wish the Government well on this Bill. I hope it goes through quickly. I shall certainly be unable to support the deletion of Clause 16; but I should like to say just one more thing before I sit down. We have heard a great deal about the winter of discontent. I spoke in this House—and this was during the time when we were in government—about the treatment that was given to Mr. Callaghan, the Prime Minister, by the people who caused that winter of discontent. I should have thought that it was without any argument that this side of the House lost the general election for two reasons: one was the winter of discontent, and the other was the belief that Mrs. Thatcher would do something about the wrong use of union power. I think she has done it, and I support what she has done. I wish the Government well with this Bill.
4.27 p.m.
Lord BOYD-CARPENTER: My
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Lords, I was intrigued a little by the patent contempt for public opinion which was expressed by the noble Lord, Lord McCarthy. It was in fact a rather interesting revelation as to his approach, because whatever may be the case about the occasional surges and swells of public opinion on a temporary issue, he must have very little understanding of public opinion in this country if he does not realise the resentment and apprehension which mass displays of picketing during recent winters have brought about. There was the sight on our television screens of large crowds assembling and the mere size of a crowd is itself sometimes intimidatory—and all the horrible incidents, like the Grunwick one, to which the noble Baroness has just referred, or the incidents when girl typists going to work were spat in the face by pickets.
My Lords, if the noble Lord does not realise what harm that has done to the trade union movement, then if he will allow me to say so he is not a very effective defender of their interests. If I may also venture an opinion, I think the noble Baroness, in that excellent speech of hers, was doing far more good to the Labour Party than those who have been moving a whole series of amendments to whittle down the effect of this clause, and who now seek to take it out.
I do not think there is really any doubt that public opinion wants, and rightly wants, to see an end to these great mass pickets, with all their alarming connections. Of course, it is an enormously difficult thing (and the noble Lord is entitled to exploit it) to know where exactly to draw the line and how precisely to draft the clause which should restrict it. For that reason, he was of course fully entitled to move the variety of amendments which he in fact moved. It is a totally different thing to do what he has now done and move the deletion of this clause; and if he persists, as he apparently intends to, in forcing this matter to a Division, he will have done a very bad day's work for his party.
4.30 p.m.
Lord MISHCON: My Lords, I rise not from the Front Bench but from the Back Bench of the Opposition in order to deal with the remarks made by my noble friend Lady Burton, for whom I have

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the greatest of respect. I rise so that the attitude of the Opposition, as I understand it, is transparently clear. We have in mind on this side—and I believe that this is so of fair-minded Members on all sides —that there is only one weapon that the employee has in respect of his negotiations with the employer if those negotiations fail. It is, in fact, if it is not arbitration, which so often takes far too long for decent industrial relations to continue, the withholding of his labour and his ability democratically to persuade others that he has a right cause in withholding his labour. From these Benches I do not intend to impugn bad employers who have used their weapon of power and of money over the employees over the years. There are many good employers; there are several had employers. There are many good, faithful employees and decent members of trade unions who find themselves in an industrial dispute.
All that the Opposition is trying to do, as I. understand it, is to say to those who offend against the law, who do not indulge in peaceful picketing, who try to use the power of the bully, that there is no sympathy from the Labour Party for them or from any trade unionist. What the Opposition has tried to do is to see that the law is clear and has the respect of decent trade unionists. The purpose behind the amendments moved—and some may have been good, some may have been indifferent—is to try to get some unity of support for a decent, clear, humane, understanding Act of Parliament. That is the object. If we fail in that object, we will fail to get the respect for this Act that decent trade unionists otherwise might have for it. That is the object of the Opposition; and from these Benches I should like the noble Baroness to know, however sincere her opinions are, that she has mistaken the mood of her colleagues and has mistaken the feelings of those who, like this humble Member of your Lordships' House, has a great respect for law and order and wants trade unionists to have the same.
Lord ROBENS of WOLDINGHAM: My Lords, I am tempted to rise and add one or two words to this debate and to congratulate the noble Baroness on her courage in expressing the views that she did in such contradistinction to those of the noble Lord, Lord McCarthy. We
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would not even be considering the question of picketing had it not been grossly abused by certain people in the trade union movement. Those who subscribe, as I do, to the importance of the trade union movement in the national economy, want to see the trade union movement used in a manner which is constructive for the creation of wealth—and the political argument about the distribution of wealth will follow after that. If we do not get better arrangements in relation to men and management in industry then, instead of having a very big cake over which to argue, we shall end up snarling over the crumbs.
I believe that this clause in the Bill will be welcomed by millions of decent men working on the shop floor. Far too many people are brought out on strike without the right to a secret ballot, without any say in what they should do or should not do. The steel strike was a very good example of that. The truth is that those of us who have any close contact with the modern shop floor have seen a complete change in the attitude of the trade unionist working on the shop floor. He is no longer content just to easily follow the desires of some of his elected leaders. It seems to me that the great turning point, from my point of view, was the fact that the South Wales miners, when they had their opportunity for a secret ballot on the recommendation of the South Wales miners' executive to come out on strike in relation to the steel dispute, by two votes to one turned it down. There was a time when you could have gone into South Wales and shouted down any pit shaft, "All out"—and they would have come out regardless of consequences or reason. But that has changed.
The noble Lord, Lord McCarthy, is associated with the Donovan Committee Report and will well remember the evidence we had on that occasion from Mr. Etheridge who was then a shop steward of British Leyland. Who would have believed at that time that it would have been possible for the management of British Leyland to have discharged Robinson, the communist shop steward, and to have their workers support them in that action? I could give numerous instances of where one can see the evidence of the change of mood on the shop floor. TI this clause were put to a vote of people on the shop floor, it would be carried.

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They would not follow the noble Lord, Lord McCarthy. It would be carried; because they are getting sick and tired of being pushed around by people who have made themselves almost into second-rate dictators. I do not understand how the noble Lord seems to suggest that we can ignore public opinion. I should have thought that public opinion was very important to this House and to another place.
We must remember that thousands and thousands of pounds of trade union members' money was spent, and is being spent, on paying very substantial expenses for militants to travel from the provinces to behave as they behaved in that period so clearly in our minds. Those members were not asked whether the money should be paid. In some balance sheets of branches, the item is referred to as "delegates' expenses". If there were some inquiry into the money being spent at branch level, one would sec a great deal of that trade union movement contribution being used, in my opinion, in a very disgraceful manner.
I believe it was inevitable, after all the years we have had of peaceful picketing since 1906, that there should have emerged the occasional outburst. But what has happened in the last two or three years is not possible for any Government to ignore. I believe that if we can bring some semblance of order on the picket line, while maintaining the workers' right to withdraw their labour if they so desire; but ensuring that the picket line is used for what was intended in the 1906 Act peaceful persuasion. If this Bill does that and brings that situation back again, it will have been worth all the effort and discussion that has taken place. I hope that this House will pay no attention to the verbiage of the noble Lord, Lord McCarthy, in relation to public opinion which seems to me the biggest pailful of slop which I have seen in many years.
Lord UNDERHILL: My Lords, I was not disposed to take part in this debate until I heard the speech of the noble Lord, Lord Robens. I believe that the two Members from the Opposition Front Bench understand the law of industrial relations and that everything they have tried to put forward is in the interests of better industrial relations. I resent any
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suggestion that they are doing anything beyond that. I agree with my noble friend and colleague Lord Mishcon in opposing violence on the picket lines. I oppose violence anywhere if I can do so. But, at the end of the day, one must get down to improving industrial relations.
On one thing I agreed with the noble Lord, Lord Robens. It was when he said that we must get better relations between labour and management. I want to know how we can achieve it. I do not believe that it would be achieved by this particular clause. A number of noble Lords have drifted into matters which concern the whole of the Bill. We are dealing only with this particular clause, and I ask noble Lords to look very carefully at the four amendments which the Front Bench have moved: Amendments Nos. 37, 38, 39 and 41. There was nothing extremist in their amendments. Their amendments would have made more sense of this clause and would have ensured that when we pass laws they can be carried out.
We had the noble and learned Lord on the Woolsack yesterday emphasising that we must use simple English; that we must see that we mean what we say when we pass laws. My noble friend on the Front Bench endeavoured to remove the word "picketing". That word is not explained anywhere in the Bill. Efforts have been made to use the same words that are elsewhere in this clause to refer to peacefully persuading and peacefully obtaining or communicating. There is nothing revolutionary about that. What they have tried to do is to make some sense out of this clause. I emphasise to the House that at the end of the day whatever is done with this clause, unless we get down to a firm understanding of industrial relations and what makes workers get damned wild at certain times, then we are not going to make much headway.
4.42 p.m.
Lord GORE-BOOTH: My Lords, I had not intended to speak in this debate because I do not feel any longer qualified on the intricate matters that learned and less learned noble Lords talk about. I should like to make possibly my shortest speech and express one wish. I have attended certainly three of the debates

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on this subject. The more I have attended, the more I have wished for the opportunity—which I now take—to tell your Lordships that it has been a hope to which I have consciously tried to hold since this debate started that we might make a very great effort to make this the last debate on this subject and somehow bring about a situation in which all of us—your Lordships' House and the other place—agree that we need not have another debate on this subject for quite a long time. It should surely be possible for our nation to arrive at a set of rules on this subject with which in our hearts we can honestly agree and to which we can stick for eight or 10 years without having to come back to this subject every year or two years.
I had felt much too shy as a humble Cross-Bencher to say anything of this kind until this afternoon's debate took the form it has. I should like to express the hope that this idea may be present with this distinguished assembly from now on. With certain interventions that we have had—notably that from my noble friend Lady Burton of Coventry—I feel that we are arriving at a new state of mind about this difficult matter which I have not heard in these debates before.
We have recognised that a lot of destructive practices to which we—rather decently, in a way—have yielded must he tolerated for certain historical reasons. As an amateur historian one knows that nothing is historically immutable. I express the very deep hope voiced somewhat in the speech of my noble friend Lord Shinwell that there may be a new technique, a new method of facing these issues. I have only made this point because the spirit of this part of this debate might lead to something in that direction.
4.45 p.m.
Lord HARRIS of GREENWICH: My Lords, I hope to speak briefly, but I think it right to do so though I am aware of the fact that the House would now like to come to a decision. I very much agree with the speeches made by my noble friends Lady Burton and Lord Robens. I want to explain why I propose to vote against this amendment. First of all, I start from the proposition that this is a moderate Bill. That is clearly my view.
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Some of the extravagant language which has been used both in this House and outside it to describe this measure seems wholly inappropriate.
I should like to pick up two points made by the noble Lord, Lord McCarthy, to explain why I propose to vote against this amendment. First, I agree with one aspect and that is that the noble Lord said that picketing is not necessary where there is almost absolute union power, as in Fleet Street, and in the television industry. That is true. But, having taken that point, it is far too much to go on to maintain that we are only looking after the interests of the weak. I would not describe Mr. Arthur Scargill and the large number of coachloads of Yorkshire miners brought down to the Grunwick dispute in that way, and I would be rather surprised if Mr. Scargill thought of himself in those terms, either.
When I was a Minister of State at the Home Office in the last Government I was asked by the Home Secretary to go down to see what was going on at Grunwick. What I saw there was in my view wholly outrageous. There was no question of peaceful persuasion at all. It was a deliberate attempt by a large number of people to frighten those who wanted to go to work. It had nothing to do with peaceful persuasion, yet it was going on day after day with some of the consequences to which my noble friend referred. People living in the area were terrified even to let their children out in the morning in order to go to school. That was the reality of the situation that we experienced on that occasion.
There was a second episode: the recent dispute on the Isle of Grain. That was a situation where a moderate trade union tried to stop other trade unionists from going to work. There cannot be much dispute about what went on because it went on in front of the television cameras. There was no question of peaceful persuasion. Bricks and other missiles were being used in order to smash the windows of the coaches that were taking the people through the gates of that power station. Having heard a very substantial amount of many of the debates which have taken place on this Bill—and I turn now to the point I made at the outset—I believe that there is an overwhelming majority of public opinion in this country, including

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very substantial numbers of the trade union movement, who believe that the law should be changed, and I believe that it is right to say so on this occasion.
Baroness SEEAR: My Lords, we on these Benches will certainly vote against this amendment and in favour of the retention of this clause. We believe that this is a Bill which makes it possible for people of varying shades of opinion to agree that we have the legislation that is required as a basis for good industrial relations. We are opposing, and will continue to oppose, amendments which have come from sections of the Conservative Party which express principles with which in some ways we have sympathy, but which we believe, if they found a place in legislation, would make the unity of opinion as a broad basis of support—which is essential for good industrial relations—impossible.
Similarly, we oppose this amendment because in the same way we believe that it would limit the chance of the widespread support that is essential now. For these reasons, we intend to support the Government against this amendment very much in the hope that we shall have no more legislation on this subject in your Lordships' House.
The Earl of GOWRIE: My Lords, I really beg the noble Lord, Lord McCarthy, to attend to the mood of the House on this issue. It will be no surprise to the noble Lord that I agree with the remarks of his noble friend Lady Burton of Coventry. It may be more of a surprise to him to say that I also agree with what the noble Lord, Lord Mishcon, said. If the noble Lord, Lord Mishcon, follows the noble Lord, Lord McCarthy, in voting for this amendment, he will be getting rid of Clause 16, the effect being to restore the law on picketing to its present state, whereas we are seeking to limit lawful picketing to a person's own place of work. It is absolutely agreed throughout the country that the trouble and civil violence, and the criminal violence, which can take place on picket lines is, overwhelmingly, not conducted by those who are lawfully picketing at their own place of dispute; and this seems to me really not to need arguing.
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On the point of public outcry, I do not think the remarks of the previous Prime Minister, I do not think the remarks of the noble Lord, Lord Robens, with all his experience, I do not think the remarks of the noble Lord, Lord Houghton of Sowerby, with his experience, I do not think the remarks of the previous Minister of State at the Home Office, and I do not think the remarks of the noble Baroness, Lady Seear, could in any sense be referred to as an hysterical reaction to public outcry. The greatest service which the noble Lord could do at this stage would be to withdraw his amendment.
4.51 p.m.
Lord McCARTHY: My Lords, I am a charitable man: I assume that the misunderstanding of our position is innocent misunderstanding, and not misrepresentation. I would only say that we have never suggested and never supported violence. We have said repeatedly from this side of the House that we would not support illegal, unlawful picketing, even on the basis of this law when this Bill becomes the law. We have repeatedly said that we believe that there are ample powers for the police affecting virtually all the acts complained of in respect of mass picketing and flying picketing, and we have always said that we would agree, in broad terms, with the evidence which the chief constables gave to the Employment Committee of the other place on this matter. So we cannot be represented at any time as supporting violence or intimidation or unlawful picketing of any kind at all, and with the possibility of trespassing on the time of the House I must say that yet once again.
Secondly, we cannot be represented as saying that we are contemptuous of public opinion, as the noble Lord, Lord Boyd-Carpenter suggested. We take as much notice of public opinion as any other party in this House—all politicians have to take notice of public opinion; that is the way in which they get elected. What we are saying—and I suggest that if noble Lords are honest they will accept this; it is the same for them is that there are particular beliefs in public opinion on which we do not propose to base our policy. Nobody has answered me on this. I suggest that that list of examples that I gave of the groundswell of public opinion would be enough to show that on all sides of this

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House it is appreciated that, though it is not very easy and you may lose votes—and I accept that noble Lords on the other side of the House may comfort themselves in the fact that there are votes in their position and votes to be lost in our position—you sometimes nevertheless have to take your stand on something which is unpopular and which is against the prevailing groundswell of public opinion. What we are saying is that we do not believe this Bill will work. We believe that this Bill will make things worse. We believe that, whereas it would be very easy too for us on this side to bow to the prevailing opinion of this House today, we must press on with this amendment and divide the House.
Lord COLLISON: My Lords, I have not intervened in the debate before. I have listened carefully to everything that has been said and it would be quite dis-
honest of me if I were simply to abstain and remain silent—because I intend to abstain. I believe that there is a change taking place in the minds and attitudes of the trade union movement. There is a good deal of dissatisfaction at much that has happened and we ought to take advantage of that. I need say no more, but I have spoken out of a sheer sense of duty and to he absolutely honest. I did not want simply to abstain. I wanted to tell the House, in view of what has been said by the noble Lord, Lord Robens, and my noble friend, that I think it is right that I should abstain on this matter.
4.55 p.m.
On Question, Whether the said amendment (No. 45) shall be agreed to?
Their Lordships divided: Contents, 63; Not-Contents, 213.

CONTENTS

Balogh, L.

Greenwood of Rossendale, L.

Ponsonby of Shulbrede, L.

Beswick, L.

Hale, L.

Ritchie-Calder, L.

Birk, B.

Hatch of Lusby, L.

Ross of Marnock, L.

Blease, L.

Henderson, L.

Sefton of Garston, L.

Blyton, L.

Howie of Troon, L.

Segal, L.

Boston of Faversham, L.

Hughes, L.

Stedman, B.

Brockway, L.

Janner, L.

Stewart of Alvechurch, B.

Brooks of Tremorfa, L.

Jeger, B.

Stewart of Fulham, L.

Bruce of Donington, L.

Leatherland, L.

Strabolgi, L. [Teller.]

Darling of Hillsborough, L.

Lee of Newton, L.

Taylor of Blackburn, L.

David, B.

Leonard, L.

Taylor of Mansfield, L.

Davies of Leek, L.

Llewelyn-Davies of Hastoe, B. [Teller]

Underhill, L.

Davies of Penrhys, L.

Wallace of Coslany, L.

Denington, B.

Lloyd of Hampstead, L.

Walston, L.

Diamond, L.

McCarthy, L.

Wedderburn of Charlton, L.

Elwyn-Jones, L.

MacLeod of Fuinary, L.

Wells-Pestell, L.

Fulton, L.

Noel-Baker, L.

Whaddon, L.

Gaitskell, B.

Northfield, L.

White, B.

Galpern, L.

Oram, L.

Wootton of Abinger, B.

Gardiner, L.

Peart, L.

Wynne-Jones, L.

Glenamara, L.

Phillips, B.

Goronwy-Roberts, L.

Plant, L.

NOT-CONTENTS

Aberdeen and Temair, M.

Berkeley, B.

Clitheroe, L.

Adeane, L.

Bessborough, E.

Clwyd, L.

Airedale, L.

Birdwood, L.

Cockfield, L.

Airey of Abingdon, B.

Boothby, L.

Cork and Orrery, E.

Allerton, L.

Boyd-Carpenter, L.

Cottesloe, L.

Alport, L.

Braye, L.

Craigavon, V.

Amory, V.

Brentford, V.

Craigton, L.

Ampthill, L.

Bridgeman, V.

Cranbrook, E.

Atholl, D.

Broadbridge, L.

Cromartie, E.

Auckland, L.

Brookes, L.

Davidson, V.

Avebury, L.

Byers, L.

de Clifford, L.

Avon, E.

Caccia, L.

De Freyne, L.

Balerno, L.

Camoys, L.

De La Warr, E.

Balfour of Inchrye, L.

Campbell of Croy, L.

De L'Isle, V.

Banks, L.

Chelmer, L.

Denham, L. [Teller.]

Barrington, V.

Chelwood, L.

Digby, L.

Bellwin, L.

Clifford of Chudleigh, L.

Dormer, L.

Belstead, L.

Clinton, L.

Drumalbyn, L.

Duncan-Sandys, L.

Ilchester, E.

Roberthall, L.

Dundee, E.

Kearton, L.

Rochdale, V.

Effingham, E.

Kemsley, V.

Rochester, L.

Ellenborough, L.

Kilmany, L.

Rockley, L.

Elliot of Harwood, B.

Kilmarnock, L.

Romney, E.

Ely, M.

Kimberley, E.

Rugby, L.

Exeter, M.

Kinross, L.

Sackville, L.

Fairfax of Cameron, L.

Lindsey and Abingdon, E.

St. Aldwyn, E.

Faithfull, B.

Linlithgow, M.

Saint Oswald, L.

Falkland, V.

Liverpool, E.

Salisbury, M.

Ferrers, E.

Long, V.

Saltoun, Ly.

Ferrier, L.

Luke, L.

Sandford, L.

Feversham, L.

Lyell, L.

Sandys, L. [Teller.]

Forester, L.

McAlpine of Moffat, L.

Seafield, E.

Fraser of Kilmorack, L.

MacAndrew, L.

Seear, B.

Gage, V.

McFadzean, L.

Seebohm, L.

Geoffrey-Lloyd, L.

Mackay of Clashfern, L.

Selkirk, E.

Gibson, L.

Macleod of Borve, B.

Sempill, Ly.

Gibson-Watt, L.

McNair, L.

Sharpies, B.

Gisborough, L.

Mais, L.

Sidmouth, V.

Gladwyn, L.

Mancroft, L.

Simon, V.

Glenkinglas, L.

Margadale, L.

Skelmersdale, L.

Godber of Willington, L.

Marley, L.

Soames, L. (L. President.)

Gore-Booth, L.

Massereene and Ferrard, V.

Somers, L.

Gormanston, V.

Meston, L.

Southwark, Bp.

Gowrie, E.

Middleton, L.

Spens, L.

Gray, L.

Milverton, L.

Stamp, L.

Greenhill of Harrow, L.

Monk Bretton, L.

Strathcarron, L.

Greenway, L.

Monson, L.

Strathclyde, L.

Grey, E.

Morris, L.

Strathcona and Mount Royal L.

Gridley, L.

Mottistone, L.

Strathmore and Kinghorne, E.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Mountgarret, V.

Strathspey, L.

Mowbray and Stourton, L.

Sudeley, L.

Halsbury, E.

Murton of Lindisfarne, L.

Swinton, E.

Hampden, V.

Newall, L.

Tanlaw, L.

Hampton, L.

Northchurch, B.

Teviot, L.

Hankey, L.

Nugent of Guildford, L.

Thorneycroft, L.

Hanworth, V.

Nunburnholme, L.

Torphichen, L.

Harris of Greenwich, L.

Onslow, E.

Trefgarne, L.

Harris of High Cross, L.

Orkney, E.

Trumpington, B.

Hatherton, L.

Orr-Ewing, L.

Tryon, L.

Hawke, L.

Penrhyn, L.

Vaux of Harrowden, L.

Hayter, L.

Perth, E.

Vestey, L.

Henley, L.

Piercy, L.

Vickers, B.

Hill of Luton, L.

Porritt, L.

Vivian, L.

Hillingdon, L.

Pritchard, L.

Ward of Witley, V.

Hives, L.

Rathcreedan, L.

Westbury, L.

Holderness, L.

Rawlinson of Ewell, L.

Widgery, L.

Home of the Hirsel, L.

Redmayne, L.

Wigoder, L.

Hood, V.

Renton, L.

Winstanley, L.

Hooson, L.

Richardson, L.

Winterbottom, L.

Hornsby-Smith, B.

Robbins, L.

Wolfenden, L.

Hunt, L.

Robens of Woldingham, L.

Wrenbury, L.

Hunt of Fawley, L.

Resolved in the negative, and amendment disagreed to accordingly.

5.6 p.m.
Clause 17 [Secondary action]:
Lord SPENS Lord SPENS moved Amendment No. 45A:
Page 19, leave out from beginning of line 25 to ("below") in line 26 and insert ("as defined")
The noble Lord said: My Lords, I beg to move Amendment No. 45A. With the leave of the House I wish to join with it Amendments Nos. 45B, 47A, 50A and 51A and B. I apologise for having had to put down these amendments in this
1068
way at the last moment. It became clear yesterday that our original Amendment No. 58 would have been debated immediately after Amendment No. 57, which is to leave out Clause 17. We could not accept that our debate should take place after a possible debate on leaving out Clause 17. We decided that the way to get our debate in ahead of that amendment was to put down the amendments in bits and pieces, which has brought it about that we can have this debate now. We shall not move Amendment No. 58.
I want to speak on the effects of Clause 17 as a whole and I shall try not to repeat

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too much of what I said in Committee. The clause removes immunity for secondary action—that is, secondary blacking, sympathetic strikes and in some cases secondary picketing—taken on the grounds set out in subsections (l)(a) and (b) of Section 13 of the 1974 Act.
I think that I should read to your Lordships what Section 13 of the 1974 Act says so that we know what the clause is all about. Section 13(1) of the Trade Union and Labour Relations Act 1974, as it has been since amended, reads as follows:
"An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable in tort on the ground only—(a) that it induces another person to break a contract or interferes or induces any other person to interfere with its performance; or (b) that it consists in his threatening that a contract (whether one to which he is a party or not) will be broken or its performance interfered with, or that he will induce another person to break a contract or to interfere with its performance".
That is subsections (1)(a) and (b) of Section 13 of the 1974 Act. That will be put aside provided that the complaint and the complainant qualify under subsections (1) and (2) of the present Clause 17. Our amendment will do the same. Except that we want to alter one of the qualifications in subsection (1), basically our amendment follows that principle.
Where we differ is that Clause 17 then goes on to introduce circumstances in which the immunity will still be alive. Those are subsections (3) to (6), and we want to see those subsections removed from the clause, for the following reasons. First, they are far too wide. We understand that the clause was drafted specifically to allow certain immunities for secondary action to continue, but we believe that the clause spreads these immunities far too widely. I will give an example. If there was a national coal strike there would be immunity for secondary action by the railways, by road transport and by power workers, to the extent that they would not want to use coal, and by any wholesale coal distributors. So that the secondary action that would still be entitled to qualify for immunity is very wide indeed.
If we look at subsection (4), this can spread the secondary action even wider because of the definition of "associated employers" which again appears in the
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1974 Act, Section 30(5) of which I should like to read. It is very short and is as follows:
"For the purposes of this Act any two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control".
That means that all subsidiaries in a group of companies would come under the definition of "associated employers". I believe that that spreads this definition so widely that it will even run into a situation in a subsidiary where secondary action has been taken by members, that those members might, to begin with, not be entitled to claim immunity but then, later on, as the strike spread throughout the group of companies, they would of course be entitled to claim immunity. So we could get a situation where we would find the employees enabled to be sued for a time if the strike and the secondary action spread spasmodically but, later on, because the secondary action built up, they would find themselves immune. I think that makes a complete nonsense of our law.
Certainly these subsections are far too complicated for members of trade unions and their employers to understand. There will be many cases where the employees taking the action will not know whether or not they are covered by the immunity, even if the situation that I have already described does not afterwards take place. I cannot believe that this Government are ready to introduce a clause which can have that effect.
I believe that these subsections will spread secondary action. Because of the width of the immunity allowed it will be advantageous for unions to put their whole strength into encouraging secondary action and leaving the primary action at a minimum. I can see a one-day strike carried on occasionally at the place where the dispute happens, and secondary action building up all through the suppliers and customers of that employer in dispute and all through the associated companies linked with that employer; and I can see a wide spread of secondary action happening if these subsections are allowed to become law.
At this stage I should like to quote from the letter which has been rather publicised in the press, from the president

1071
of the Law Society to the Prime Minister. I got in touch with the president this morning and obtained his permission to read these quotations, which I think are very pertinent:
"The one really depressing event in my year of office has been the awful spectacle of the law being held up to public ridicule in the sphere of picketing. The subject has since been debated in public and in Parliament, but with what result? I have read with incredulity the Employment Bill as printed on the 13th June. It may be thought from the opening words of Clause 17(1) that the intention of the clause is to restrict the area of immunity from liability in tort for those involved in an industrial dispute. The clause, however, then goes on to recognise and indeed endorse the right to indulge in secondary action of the widest nature. Indeed, it seems to me to require no ingenuity on the part of any trade union to ensure that secondary action of the most vicious nature is rendered lawful."
My Lords, that was a letter sent by the president of the Law Society to the Prime Minister last week.
The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone): My Lords, I think the noble Lord may wish to say that it was not sent in his official capacity or after consulting his Council, but in a personal character. I think it is most important that that should be emphasised.
Lord SPENS: My Lords, I think the noble and learned Lord is perfectly right. When I spoke this morning I was told that this was sent in his personal capacity, and I should like to make that very clear.
A noble Lord: Why did you not say so?
Lord DAVIES of LEEK: My Lords, why did not the noble Lord introduce it like that?
Lord SPENS: My Lords, perhaps it was a slip of the tongue—I do not know. Anyway, by removing these immunities completely, as we suggest in our amendment, all secondary action will put liability on the employees taking it. it will be a matter for the employer's judgment as to whether he takes any action against any employee and I do not believe that many employers will do so. I do not believe that many employers will do so. Surely the fact that employees are not covered by immunity when they take secondary action will be a curb on the number of
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secondary actions that will take place, rather than the prolification of secondary action which we believe will follow if the clause is left as it is.
My Lords, I now must go back to something I said in Committee. Again I think it is very important, and if I repeat myself I apologise. I very carefully used the word "entrenchment in Committee on the question of this Government entrenching positive immunities in this Act. Subsections (3), (4) and (5), and the definition of subsection (6) give positive immunities to the union and its members. I know that these immunities have been available to them from 1906, but they have never positively been written into an Act, and certainly not by a Conservative Government. I worry that it would not be easy for a future Conservative Government to take these immunities away once they have been written into statute law. Therefore, again I feel that subsections (3), (4) and (5) should be removed from the Bill.
Finally, my Lords, a word about the role of this House. Clause 17 was debated in the other place only at the Second Reading stage; in fact it was not debated in detail. It was introduced on 17th April during the Report stage, when it was given a First and Second Reading. I believe the debate lasted for about four hours and was a Second Reading debate on the principles of the clause, and none of the Members in another place had had an opportunity of studying the detail of this clause, which they now have had time to do. We have the opportunity to give them that second chance. I believe that it is something that this House is very good at doing and I would hope that they will do it today. We claim to be a revising Chamber.
We must also take responsibility for any bad law that is passed through the House. Time and time again clauses of Bills were sent back to another place by the opposition, as it then was, to the last Government. I raised this point with the noble Lord the Minister and one of his colleagues. I will say it was not the noble Lord who gave me the reply but his colleague, who said, "Of course we only sent back unreasonable amendments".
My Lords, how do other Members of this House feel about that? I do not

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believe that Members on the Liberal Benches, Members on the Cross-Benches, always supported the Opposition when they wanted to send back clauses for further consideration in the Lower House. When they did not support the Opposition it cannot have been that they still thought that the Government clauses were unreasonable. So I do not think that the test of reasonableness or unreasonableness comes into it. But I do think that we have the opportunity and the duty to make sure that a clause is right, and also that another place has had a proper chance to debate it.
In preparing for today I thought I would look up one or two of the old Hansards just to see if I could find any examples of what I mean. In fact I was lucky in picking correctly the very first two weekly volumes that I looked up, the Hansards for the middle of July 1977. The Bill that was then being discussed in Committee was the Price Commission Bill. There were at least two amendments which the Opposition sent back to the other place. There were other amendments on which the Opposition divided but just lost, because I think there was support from other parties for the Government at that time. I want to quote the remarks that were made by the noble Earl, Lord Mansfield, in the final stages of the debate on whether that Bill should now pass. The noble Earl is a sick man at the moment in his house with 'flu, but he was gracious enough to come to the telephone this morning so that I could alert him to the fact that I was going to quote him. It is a very short paragraph. He said:
"Do not let it be thought that I am complaining at the decisions to which the House has come, because I certainly am not. But it is something to which we shall all have to pay regard in the future; that our role as a revising Chamber, as a Chamber where reasoned Amendments are thought out and debated, is one which perhaps is not so safe for the future as some of us may have thought". [Official Report, 18/7/77; col. 80.]
My Lords, our role is still that of a revising Chamber, and I would ask your Lordships to act on that role this afternoon. I beg to move.
5.28 p.m.
The Earl of GOWRIE: My Lords, I think it would be for the convenience of the House if I gave the Government's view of the amendments moved by the noble Lord, Lord Spens, at this point,
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so that noble Lords may take it into account during the rest of the debate. My noble and learned friend on the Woolsack will wind up the debate, and it will also be more appropriate for him to answer some of the criticisms about the legal and technical difficulties of the clause which the noble Lord, Lord Spens, has made.
That said, I do not think I am pre-empting anything that my noble and learned friend may say if I make it very clear to the House that the substance of the criticism of Clause 17, whether it comes from the noble Lord, Lord Wedderburn, opposite or from some of my noble friends, is not a technical matter, nor a matter of drafting, nor a matter of legalistic interpretation at all. The criticism is about policy; it is about the Government's reforms of industrial relations law as they are expressed in this Bill. Clause 17 is a very important part of the Bill and it constitutes an important issue of policy. That is why it is a little disingenuous of the noble Lord, Lord Spens, if he will forgive me for saying so, to lay such emphasis on the need for another place to have another look at Clause 17.
We in this House are rightly charged with duties and responsibilities to amend legislation, or to put it into workable shape. We can, of course, also send legislation back to the House of Commons for second thoughts if we do not like it and if we think that it will do harm, although I must say that we tend, as a general rule, to accept the main thrust of policy coming from the elected chamber without radical amendment. What I find rather more doubtful is the idea of sending back a Government Bill to another place principally on the grounds that some 20-odd of the Government's own supporters there do not like it as a matter of policy and hope that if a majority in the House of Lords also takes that view they will add to their number in their own place.
There has been a misleading impression, largely emanating, I think, from Fleet Street, that this clause has not been widely consulted upon or widely debated and that it has been slipped in by the Government at the last moment. The House of Commons has had a full day's debate on this clause alone. The Government also consulted extensively on the clause on the basis of a working paper on this clause

1075
alone. So there are no doubts, in my view, about the degree of consultation and debate which has taken place—indeed, we had a considerable debate on the clause in Committee here. But, of course, your Lordships have a perfect right to take your own view on the issues of policy involved in the clause and to accept or reject the amendments moved in the noble Lord's name as you think fit. All that I am asking—and I think that it is fair for me to ask this—is that your Lordships should take a view on the merits of the case alone and not as a result of any politicking or arguing going on in another place. So let me rest the Government's case firmly on the issue of policy and try to win the confidence of your Lordships' House in that policy.
All along this Employment Bill has sought to deal with specific problems and abuses in our industrial society, and specific defects in our existing industrial relations law. It operates on the premise that good industrial practice may on occasion need legal underpinning. It operates on the premise that bad industrial practice may need outlawing or at very least that individuals who suffer as a result of bad practice may need legal protection. It operates on the premise that laws affecting the collective behaviour of millions of people are necessarily sensitive and complex, that the best law in this field may be the law least used, and that consultation and consent are needed for all industrial relations reforms.
The Government have consulted both formally and informally every step of the way. We believe that because we have tackled specific abuses, the sort that are recognised—as we saw in the debates on the last amendments on picketing—both inside the labour movement as well as outside it, we believe that we now have the consent we need to make our proposals workable and to take these issues out of the party political arena. Goodness knows! we have quite enough to disagree about and to fight over without repeating the unhappy and damaging history of the last decade when no Government have succeeded in making their industrial relations law stick and the useful role of the unions has been eroded because of public hostility to union malpractices. We believe that this approach is illustrated
1076
in our proposals on secret ballots; in the protections for individuals who may suffer as a result of closed shop agreements; in the outlawing of secondary or off-site pickets and bully-boy recruiting practices; in the reforms of existing employment protection law; and now in this approach to the vexed issue of Clause 17—sympathetic action.
I hope that the House has noticed that, in spite of the eloquence and expertise of the noble Lord, Lord McCarthy, and the noble Lord, Lord Wedderburn, they have received relatively little support throughout this Bill from their own Back-Benchers and they have received conspicuously little support, as we saw as regards the last amendment, from the experienced senior trade unionists who sit in this House. On the contrary, on secondary picketing during the Committee stage, as well as on Clause 4 yesterday and on the secondary picketing issues today, we have had a notable speech from the noble Lord, Lord Houghton of Sowerby, and also notable speeches from the noble Baroness, Lady Burton of Coventry, and from the noble Lord, Lord Robens.
I do not think in this context that it is also right for some of my noble friends here, or my friends in another place, to say, "Of course there's no head of union steam and therefore Labour Party steam against the Bill; that's because it's wet, because it does not go far enough. It provides no threat to the unions". We are not in Government to threaten: we are in Government to improve. It is no use making changes in the law which do not command wide enough consent to make them workable. Nothing is more likely to bring the law into disrepute for it to be flagrantly disobeyed or for the remedies it provides not to be used by the very people they are designed to help.
This Bill will help to restore the balance of power between unions and employers and between individuals and organisations. It will help in the specific cases where the balance has, in our judgment, and we believe in the electorate's judgment, been gravely disturbed. If employers or individuals fail to use the remedies that this Bill provides, then we are at best wasting our own and the country's time. At worst we may be providing the rallying cry

1077
which the militants in the trade union movement need in order to mount a campaign against the consent which they know this legislation commands.
When we debated this amendment in Committee those who spoke in its support were in some doubt as to whether it did, in fact, cut away the immunity which the law provides for actions against inducing the breach of contract—that is the immunity which, under our present system, makes it possible for strike action to occur at all—until all that was left was immunity for the primary dispute. In other words, there was some doubt in Committee as to whether the amendment or the amendments were outlawing all sympathetic action.
I am sure that my noble friends Lord Orr-Ewing and Lord Renton will not take it amiss if I say that they have, since Committee, acknowledged to me that the effect of the amendments is indeed to restrict the immunity to primary action alone. So I do not think that there is any disagreement between ourselves and our critics that the net effect of the amendments, given that we have, at present, to deal with a system based on legal immunities rather than on rights, is indeed to outlaw all sympathetic action.
What does it mean when we take it out of the inevitably convoluted language of this area of legislation and translate it into the daily actualities of industrial life? I shall quickly give two very real examples of the effect of restricting the immunity to primary action alone. First, there is the case of an employer who gives material support to an employer undergoing a dispute by supplying him, let us say, with the goods which he needs in order to overcome the effects of that dispute. He might well be an associated employer with respect to the employer who is undergoing the dispute. For instance, he might be acting on the instructions of the holding company or, indeed, he might be the owner of both companies.
At this point I should like to say something to the noble Lord, Lord Spens, when he implies that secondary action will be lawful against any associated employer of the employer in dispute. He mentions, but gives no weight to, the
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crucial requirement that the associated company must be providing goods in substitution for those which would otherwise be provided by the firm in dispute. Such substitution is, of course, extremely rare because it depends on the two companies being in the identical line of business. Where it happens it will be a conscience decision by the holding company to use an associated company to outflank the primary action at the company in dispute. Under these amendments, in situations of this kind, there would be no immunity for action by the employees of the company that was providing the material support.
Now that would not merely go further than the Bill; it would be going much further than the Industrial Relations Act 1971. In our view, it would give credibility to the otherwise absurd view—which was expressed in this House at Second Reading by the noble Lord, Lord Wedderburn—that this Bill is more restrictive than the 1971 Act; that it is not —as the noble Lord, Lord Harris of Greenwich, said during our last debate a moderate Bill which can receive general support. Far from getting tacit—if not overt support, the Bill would then be liable to the same response as the previous Act, and all its really valuable work would be undone.
Then there is the instance of a firm which might sack all its trade unionist employees during a strike in order to replace them with non-union labour. Under this amendment there would be nothing that the union could do about it. It could not take primary action because it would have no members at the firm. It would be prevented by law from taking sympathetic action. It would not be considered reasonable by the millions of trade unionists who voted Conservative at the last election to cut back the incredible, and indeed suicidal, extension of trade union powers and immunities which the last Government granted.
But the amendments to the Bill which we are discussing here and now could be regarded by the trade union movement as a whole—the moderate majority—as a charter for the anti-union employer. If the amendments were accepted, both here and in another place, I have no doubt that in practice the trade unions would take sympathetic action in cases of the

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kind I have mentioned, whatever the law said. If the employers then took them to court, it would mean that the law was being tested in the worst of all conceivable circumstances.
Therefore, if we accept these amendments, the law would be brought into conflict with all the accepted traditions of sympathetic industrial action in this country. I do not defend all such traditions and I certainly do not defend them just because they are traditions. Indeed, in a moment I shall suggest how we might seek a new way forward. But at present they are a fact. When we debated this issue in Committee I referred to the Donovan Commission's remarks about the established practice of putting pressure on an employer in a dispute by trying to seal off his sources of supply or trying to seal off his outlet for sales. I pointed out that the Court of Appeal, in the judgment which is widely associated with the name of the noble and learned Lord, Lord Denning, had taken the same view in developing the test of remoteness from the original dispute.
I am bound to say to the noble Lord, Lord Spens, that I do not believe that outlawing all secondary action would be made any more acceptable by preventing the employer in the primary dispute from suing the organiser of the secondary action, as the amendments propose. So far as the trade union official is concerned, it is quite immaterial who sues him. It is the fact of being sued that matters. In any case, it would normally be the employer, whose workers are taking sympathetic action and whose business is, therefore, most immediately at risk, who would want to take the organiser to court. Of course, it would not be difficult for the employer in a dispute to arrange for another employer to sue if he himself were prevented from doing so.
I said a moment or so ago that the Bill seeks to deal with specific abuses in our industrial society and specific defects in our industrial relations law. The arguments that I am now putting against the position taken by the noble Lord, Lord Spens, and others are altogether consistent with this approach. Of course, with the noble Lord, we recognise that Clause 17 raises extremely complex problems. But we also recognise that to limit immunity
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to primary action—in short, to outlaw all sympathetic action of any kind—would make the legal situation as tidy as it would make the industrial situation chaotic.
But, weighing my words most carefully, I want to say something which, I believe, will give some comfort to the noble Lord, Lord Spens, and to my noble friend Lord Orr-Ewing and others who support their amendments. Consistent with this step-by-step approach—or what I prefer to think of as an "abuse-by-abuse" approach, an approach which corrects abuses in the field as they occur and as we obtain consent for correcting them—is our conviction that nothing is static in industrial relations and that this may not be the end of the story. Our immediate objective is not to produce a final definitive statement on the legal protection needed by trade unions; our immediate objective is to put right in the best way possible in the present circumstances the virtually unlimited immunities which the McShane judgment has shown are enjoyed by unions as a result of the last Government legislation.
In the interests of getting on with it, I shall not repeat the note that I have about the noble Lord's citation of the immunities in a coal dispute. But perhaps I could say to him, with great respect, that he is, in fact, wrong, and the immunities are much more limited than he presently thinks. We believe that an immediate response to McShane is necessary without awaiting the outcome of what will be a comprehensive review of trade union immunities. However, we also believe that it would be politically unforgiveable for us to leave the previous Government's immunities virtually unrestricted while that review is taking place. But the consequence of this immediate need is, of course, in one way unfortunate. It is that the present clause has had to build on the existing complex and far from satisfactory system of legal immunities. Nevertheless, we felt bound to introduce the clause, which broadly reflects the judgment of the noble and learned Lord, Lord Denning, by restricting immunity to the first customer and first supplier. This, of course, has led to a more complicated formula than the amendments.
But we judged it impossible at this stage either to cutback immunity to

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primary action only or to remove immunity altogether for breaches of contracts of employment, which simply means outlawing sympathetic action altogether. Either course would have given the union leadership an opportunity, which so far they have been quite unable to seize in a credible way, of portraying this Bill as attacking fundamental trade union rights. The amendments would, therefore, substantially alter the policy objectives of the Government, and these policy objectives cannot, in our view, be sacrificed to the desire for a simpler legal drafting of the clause.
I want to acknowledge that the unavoidable complexity of the drafting of Clause 17 has contributed to many of the apprehensions here and elsewhere about the Bill. Nevertheless, the criterion of permitted sympathetic action which the clause embodies is easily understood in industrial terms. In the vast majority of cases it is employers and trade unions—not the courts—who will have to apply the criterion. The complexity of drafting—though I would just say in the draftsmen's defence that after six months' hard work no one has been able to suggest a better way—may have led some people to underestimate the extent to which it cuts back the immunity for sympathetic action. Quite simply, in future sympathetic action will have to be directed at business which; actually being carried out during a dispute with the employer who is undergoing that dispute.
Clause 17 enables employers to claim the protection of the law against damaging sympathetic action, such as blacking, if they are not themselves party to the original dispute or not in a direct and active business relationship with the employer in the dispute. That is a considerable restriction of the present immunity. There is a simple answer in terms of every day industrial reality to those who fear that the immunities are, in practice, still too wide—as the noble Lord, Lord Spens, said—because of the multitude of companies supplying goods to a large manufacturing company, such as British Leyland.
That is the fear which was expressed very fairly at Committee stage by my noble friend Lord Orr-Ewing. In the first place, there is no way that this or any other law can protect one's private or one's business life from being affected by
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withdrawal of labour in a free society. If I supply the leather upholstery or the felt lining to British Leyland, of course I am going to suffer if British Leyland is on strike. So am I also going to suffer if my job is selling Leyland cars that I am unable, as a result of a dispute, to get hold of? That is a somewhat surreal example in present circumstances. But the present law allows other aspects of my business or my private life to be disrupted on grounds that the unions concerned may judge subjectively that a trade dispute will be furthered by closing me down or refusing to supply me. Under our Bill, if the employees of any supplying firms to Leyland are henceforward told to take action in support of a dispute there they will have to exercise the greatest care if the immunity is not to be lost. And, if the sympathetic action takes the form of blacking, it will have to be targetted directly on British Leyland, and on nobody else.
One last word: the Government are very concerned that a major platform of policy, the Employment Bill, may be rendered less effective by the public being given the persistent impression that it does not go far enough. This impression is being generated mainly in Fleet Street, which incidentally refused to make use of the 1971 Act when the last Conservative Government outlawed the closed shop. But since the wisdom of your Lordships' House commands wide respect, a revolt by the Government's own supporters here, as well as impartial Cross-Bench opposition, will add to that impression.
This is bad because it takes people's minds off the substantial inroads into union powers and immunities which the Bill has made; for example, the outlawing of secondary picketing, the provision for secret ballots, the protection of individual rights in the context of the closed shop as well as this present radical tightening of the immunities for sympathetic strikes and the blacking of goods. It is bad because it undermines—and this by people who might be expected by the public not to undermine it—the approach which my right honourable friend the Secretary of State for Employment persuaded the Shadow Cabinet at the time of the manifesto, and the Government in office, to adopt over industrial relations; not just the step-by-step approach but the approach

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of taking moderate majority union opinion with us every inch of the way.
I must say to the noble Lord, Lord Spens, in the light of his article in this morning's Times, that it is wrong as a matter of fact to suggest that outlawing sympathetic action altogether, as these amendments would do, was in any way part of the Conservative manifesto commitment. Does anyone really imagine now, or did anyone really imagine then, that we could outlaw a tradition as ingrained as the refusal to handle goods from or to a firm in dispute at the time of that dispute? Would that be the conclusion of my right honourable friend's six years of hard labour on this subject?
The Bill was designed to correct existing abuses of union power in a specific way, and this it does. It is not enshrining or consecrating secondary action to cut it back from the hideous proliferation that the noble Lord, Lord Wedderburn, and others designed for it. It is not blessing secondary action to reduce it to as orderly and manageable an arena as industrial reality and laws based on immunity rather than right allow. On this vexed issue of immunity, we have, as I said, promised a thorough review in the form of a Green Paper. We have promised further legislative reforms if events show that they are clearly needed. But I believe that our overall approach will be damaged if the House of Lords appears to people outside to be attacking that approach and substituting for what we have done unworkable provisions which could lose all the consent we have won with such difficulty. And it is that consent that is causing the Labour Party and the union high command some embarrassment, as they know we have it and they know we are right. I must say to the House that it would seem to me to be a major error of judgment, and a major political error, if we contributed to tipping the balance hack towards militancy and unlimited immunity in this way.
5.55 p.m.
Earl DE LA WARR: My Lords, I shall be very brief because there are many people to speak. This afternoon is, I believe, a moment of extreme importance in the whole turgid history of industrial legislation. The importance lies not so
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much in what Clause 17 seeks to achieve; and what it seeks to achieve is by any standards extremely tough. The importance lies in what these amendments might do to the Bill if they were to become part of it. The amended clause would, I believe, as my noble friend has just said, be unenforceable and would thus risk and very seriously risk, bringing the law into some not inconsiderable disrepute. I believe further that it would jeopardise the whole Bill, which bids fair to make a lasting contribution to industrial harmony. In my opinion, it would almost certainly produce an instant threat of repeal of the whole Bill from the Opposition should they ever regain power, which God forbid! But I suppose it could happen. Above all, it would interfere with the frightfully important discussions about union immunities which are due to start very soon indeed with the issuing of the Green Paper and which will certainly cover the deeper aspects of Clause 17.
I want to draw your Lordships' attention—many of your Lordships will already have seen it—to the pleas that have come from the Confederation of British Industry and the Engineering Employers' Federation to leave this clause as it now stands. I am authorised by the British Institute of Management to pass on to your Lordships the fact that they feel exactly the same way. These three organisations of employers and managers are by any standards in industrial affairs a formidable trinity, and I invite your Lordships to take very considerable notice of their opinion.
One last thing: I do believe most earnestly that the noble Lord, Lord Spens, and my honourable friends Lord Orr-Ewing and Lord Renton, have indeed performed a most valuable service today in bringing these very important doubts before your Lordships' House for full debate. I congratulate them, and I ask them to accept my congratulations in the spirit in which they are meant. But I beg that, when this important and no doubt very full debate has run its course, they will think very hard indeed before they decide to press their amendments to a Division.
6 p.m.
Lord WIGODER: My Lords, may I make three short points from these

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Benches. First, I invite your Lordships not to confuse discussion on the relative merits of Clause 17 and the amendments with a discussion on the relative merits of the drafting of Clause 17 and the amendments. I say that because it seems to me that the amendments are incomparably the better drafted, incomparably more elegant, very much clearer and very much less capable of misinterpretation or misconstruction. But having said that, it does not seem to me that that involves any reason in itself for supporting the amendment. One must look at the merits of what is sought to be achieved by the clause and the amendments and put out of one's mind for that purpose questions of the elegance of the drafting.
Having said that, perhaps I may remind the noble and learned Lord on the Woolsack of what I know he is already aware; that is, that there has been a substantial volume of criticism of the drafting of Clause 17 as it stands. It is clear that some of the phraseology will impose a difficult task on the judges, used, as they are, to difficult tasks. It is perhaps clear that Clause 17(5) reads a trifle oddly as a definition of secondary action.
A number of points have been made about the drafting. I think it would weary your Lordships quite unnecessarily to go into those at this stage, and I do not propose to do so. I invite the noble and learned Lord, when he replies, to say not only that he is of course aware of much of that criticism, but also that the Government will take one last look at the drafting of Clause 17 between now and Third Reading in case it be possible to improve it, even at this very late hour.
The second point I would raise with your Lordships is that we are not this afternoon discussing an issue of political principle; we are discussing the political realities. It is a conflict that has troubled liberals with a small and a large "L" throughout the passage of the Bill. There are many of us who, on principle, support what has been said by the noble Lord, Lord Spens, and the noble Lord, Lord Orr-Ewing, and their colleagues in the course of this Bill; their observations about the closed shop, and their observations about picketing and secondary action. We are in fact discussing this afternoon an industrial situation in which the closed
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shop, picketing, and secondary action are all deeply ingrained fundamental beliefs of the trade union movement.
I believe that in these circumstances the choice before us is as to how far it is proper on this occasion to go. We on these Benches believe that the approach in Clause 17 is the sensible one. It is at this stage a modest move forward, but it is a move forward which we believe carries with it the support of millions of ordinary, decent, sensible trade unionists. We ought not to forget that there are millions of them. We believe that the alternative approach put forward in the amendments, attractive though it is in theory, of removing the immunities altogether on secondary action will in fact lead to a disastrous breakdown in industrial relations, to an increase in industrial disputes, and to a decrease in our productivity—and we cannot afford any of those things.
The third point I want to make is simply this. I hope that I misunderstood the noble Lord, Lord Spens, when he seemed to be inviting your Lordships to vote in favour of the amendment, whatever your Lordships' convictions may be about it, simply in order that it might be sent back to the other place to be reconsidered. I can only say, for my part, and, I am sure, the part of my noble friends on these Benches, that we propose to vote on this amendment in the way that we believe is justified according to the view that we take of the present situation. We believe, too, that it is important that Clause 17 and many other parts of the Bill should be on the Statute Book at the earliest possible moment.
6.5 p.m.
Lord RAWLINSON of EWELL: My Lords, as a law officer in the Government of 1970 to 1974, with my share of responsibility for the Industrial Relations Act of that time, I cannot be other than very conscious in 1980 of the need for very sensible and balanced political judgment in this field. Certainly also as a practising lawyer I am equally conscious of the limited role of law in these matters. By "limited" I do not mean unimportant, nor do I mean ineffective, and nor do I specially mean unenforceable. But I cannot avoid the reflection that in 1970 to 1974 the Government of which I was a member tried

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to do too much too soon. Following that, in 1974 I sat on the Opposition Benches watching with amazement what the successor Government sought to do in subsequent legislation with, I believe, the result that they alienated public opinion and harmed, rather than promoted, the interests which that Government were eager to sustain.
I suppose it is a lesson in politics that one has to beware of the counsel of some of the most agreeable and sincere and closest of one's political friends. That is a position that some of us are in today. The Secretary of State, in my view, has sensibly and courageously sought, and decided, to reject the role of the Bourbons. He has applied political good sense in trying to learn from the past. In politics it always seems to me easier to come to Parliament, like Oliver Twist came to the Beadle, and ask for more. It is less acceptable and less attractive to come to Parliament and apologise for having asked too much.
If that was the correct political judgment in 1979 when this Bill was published—as I believe it was—to act with restraint and to act sensibly, then what were the Government to do when they were faced with the judgment of this House in the case of McShane? The noble Lord, Lord Wigoder, criticised by inference, although he said that it was not of great importance, the drafting of this particular clause, Clause 17 of the Bill. But of course the task is not simple for any draftsman. The existing law, as he well appreciates, is based on the immunities from civil action for tort, and with that and the political judgment not to rush through, save with the closest of consideration and consultation, the reform of employment law, then it was bound to be a complex task if the Government, as I believe rightly, decided to deal with the problem thrown up in the case of McShane. McShane opened up unlimited immunities, and it was obviously necessary to cut those back, but—and this is where the Government are right—to cut back to what is advisable in the context of the political decision to proceed in 1979 and 1980 with restraint.
Of course at the back of their minds was that this is the start of a Parliament; that there are many years ahead for this
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Government, and this Government and nation are facing a major battle over the economy. Therefore, obliged to build upon the present complex edifice of employment law, I think they were right to do that which they have done. It has been said again by the noble Lord, Lord Wigoder, that there are matters of complexity in this clause, and there are complex matters of law. But, as I understand it, the limited objective was to restore what were the reasons for the decisions of the court of appeal—the noble and learned Lord, Lord Denning, has been mentioned—before the McShane case. That was to remove the immunity from secondary action against commercial contracts except where, in special circumstances, taken by the employees of first suppliers or first customers, and to seek to effect the objective test, and that the immunity should not necessarily be retained just because the test of purpose is satisfied. This clause is of a limited effect and the Government acknowledge it is limited, and I believe they do so sensibly and correctly.
I support the Government's decision to proceed with restraint, and I believe it is, in the best sense of the word, the most sophisticated approach to a very complex problem. I accept that the Bill has to build on this legal edifice. However, what we can be quite sure of is that this clause will be judged not by the legislators, not by the lawyers in their courts or in their academic studies, but by the nation; and if Her Majesty's Government's restraint is treated with contempt, how much more authoritative will it be if the Government then return to Parliament, perhaps just before the end of the life of a Parliament too, with a call to be given further powers? That would give the authority for this House and the other place to give the Government, if it is proved necessary—which I hope to Heaven it will not be—those powers. In effect, the 1980 Bourbons and Barons are being put on good behaviour; they have been given a conditional discharge, and T believe that the approach of the Government here is not only sensible but, above all, subtle.
6.12 p.m.
Lord HANKEY: My Lords, I support this series of amendments not only because I am sure they are right in themselves

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in terms of industrial relations, but also because I am sure that this part of the Bill as drafted is not strong enough to meet the major economic and political strategy that is now required, and I will explain both these points to your Lordships. The Left Wing of the Labour Party and the trade unions have grossly abused the facilities given them by the 1974, 1975 and 1978 Acts. Local pressure groups have been allowed to cause vast inconvenience to the public by spreading secondary strikes and secondary action far and wide, almost whenever there has been a big dispute. We see the results today in the drastic decline of the industrial power of this country in the manufacture of cars and vehicles, in shipbuilding, in textiles—you name it !
The great British public is rather slow to anger, but last year it at last saw that the Conservatives absolutely had to be commissioned to put it all right. So here we are. The Bill, however, does not put it right; it does only half the job. I urge noble Lords to look carefully at Clause 17 and particularly at subsections (3), (4) and (5). For example, it will still be possible for the miners, if they go on strike again, which goodness forbid! once more to stop the electricity generating boards from getting their own coal stocks. They have a supply contract in the terms of this clause. They can also close the ports to coal imports required in substitution in the terms of this provision. The whole economy of the nation would be hit,and that is not what the Government were elected to do. The Government have themselves told us that the ancillary industries round British Leyland could, in the event of a motorcar strike, be called out in sympathy.
The Earl of GOWRIE: My Lords, the case which the noble Lord mentioned—of the mines, railways and electricity supply board—is not in fact correct. It is very doubtful indeed whether the immunity would apply to that kind of action against the Central Electricity Generating Board.
Lord HANKEY: My Lords, I thank the noble Earl, whose wisdom I admire, but I am not sure about it and what he said shows one cannot be sure. One cannot be quite certain about this, whereas we need certainty in these matters if our industries are to conduct their affairs on
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an even keel. The products of these ancillary industries round the motorcar industry, like British Leyland, are widely exported for use by foreign vehicle manufacturers all over the world. Many industries are in the same position, and all of us who have worked in export promotion are terribly conscious of this. There is no reason, because British Leyland are in trouble, why these other industries should be prevented from selling their products. Such action destroys our markets and performance, and I can personally certify that it has done our overseas trade and employment at home enormous harm. The Government are under contract to the nation to stop this sort of thing. They may be losing some prestige already and, though I speak from these Benches, I am deeply concerned about it. In my view, the very minimum today—right now—is to vote for this series of amendments to Clause 17.
It does not pay to be slow or slack on these issues. The Donovan Commission was quite clear that strikes in water, gas and electricity should continue to be illegal. I remember well how the Labour Party in this House urged the Government to make just one sensible, kindly concession to them and make strikes in those industries legal, and what happened? The electricity workers brought the whole country to its knees, and were proud of it; the waterworkers also went on strike, and in the Manchester area they allowed sewage to get into the drinking water. If any of us had done that we would have gone to prison for it. I fear that such gross abuses will not be affected by this legislation, whereas they should be. The country wants and expects more and much quicker action from the Government, and I do not believe they would forgive the Government for being ineffective. We should have had the Bill a year ago.
That brings me to my second point. Not many people realise how difficult, how long and how painful it is to correct inflation on the terrible scale to which we have allowed it to develop. We had much hard experience of this at OEEC and OECD. It must take five years for any Government in this country to turn the ship of our economy round, away from the rocks of disaster and facing out to the open seas of prosperity. They cannot do that unless they get the monetary situation right, which of course is what they are

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doing. But inflation means too much money chasing too few goods, and if strikes and industrial action are allowed to be expanded and spread and magnified, like the steel strike was, production will suffer and the vital balance between goods and purchasing power will not be achieved, and the correction of inflation will be very much delayed.
I urge the House to bear in mind that in the recession that is developing, for which OPEC is partly to blame, industrial competition in this country and between us and foreign countries will become far more intense. The firms whose productivity is lowest are liable to go to the wall, and that will raise unemployment. We see the danger round us already. But how can we expect to get good productivity, efficient management and more real investment unless we correct the secondary strike abuse? It is really unrealistic and asking for trouble, both economic and political. I am absolutely certain that the Government require all the time they can get before the next election to set matters straight. They should never allow a Bill like this to permit the spreading and expansion of strikes.
What we are debating is not a very clear draft; I found it extremely hard to understand. I am sure that misuse will be made of it, not only deliberately but out of sheer misunderstanding; and, as I say, the Bill has come a year late. It is far too slack in its effect, and to say that if it does not work it can be corrected next year is daft. If you say, "Well, in this respect we are granting you all immunities", you prejudice the very important discussion of immunity which we are due to have this summer. Many of us are awaiting that with breathless interest, but if you prejudice the question now, it makes matters much harder. The amendment would make this much better. Here we are taking a colossal economic and political risk, because our countrymen will rightly conclude that the Government are not serious and that they are not effective in stopping the boring and undermining by people whose loyalty to this country is increasingly suspect.
I urge your Lordships most earnestly to support these amendments and let the House of Commons have another think
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about these very important issues. In saying that, I am not really attacking the Government. I am in favour of the Government getting on and setting our country on the road to prosperity.
6.21 p.m.
Lord THORNEYCROFT: My Lords, I rise to support the Government and the noble Earl, Lord Gowrie, in what they have said. I realise that this is a subject about which there are what I understand are called, in the context of this Bill, "deeply-held personal convictions". I therefore address the matter with, I hope, restraint and quietness. I certainly feel I owe an explanation of my feelings to those who support this amendment, noble friends whom I have known for many years and for whom I have a great respect. The noble Lord, Lord Spens, moved this amendment with great clarity. May I say I share some of those anxieties? No one is going to say in an area as complicated as this that it is not possible to probe and find some faults.
But, my Lords, this clause, as the noble Lord, Lord Rawlinson, said, stems from a policy decision. The Government really had two choices; they could have approached this whole subject either on the basis of going very carefully, of consulting, of edging the law a little closer to what was real, correcting some mistakes. That was one step. Or they could have gone for dramatic steps, tackling the whole issue of immunities in the unions. They chose the first course and, my Lords, I must say that the Secretary of State, Mr. Prior, has stuck to that with courage and conviction and under very considerable attack from all sides in this process.
I accept what the noble Lord, Lord Spens, says about the drafting; this is a high risk clause. I can see this with every bit as much clarity as he; the law as it now stands is so complicated, so almost impossible to define that men as wise as Lord Denning and Lord Diplock differ about it. This places a politician in a relatively easy position. When Lord Spens says, "It has all altered now because it is in a Tory measure", I am sure the noble Lord, Lord Renton, will be pointing this out later, but I agree that it makes it, as it is attacked, much more difficult to defend. Having said that, I do not believe that this debate is about

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legal technicalities and the drafting of clauses. I believe it is about fundamentals; it is about human relations; it is about great tides of public opinion which are moving in this country. I think the debate we have just concluded on the last clause touched on those tides where noble Lords on both sides, speaking from the heart, were saying the way they thought things were developing.
We have been through two winters which no one was at all happy about and which millions of trade unionists must have found deeply distasteful to everything they have ever wished for. That feeling was not confined to one side of this House or to one party. No one really wants another such winter. But what happens this winter is not going to be decided by this clause, however it is drafted or amended. It is going to be decided by the individual decisions of trade unions and managers up and down this country in the public sector, in the private sector. May I say that an enormous responsibility rests upon their shoulders.
If the worst happened and the attempt was made to wreck this measure—and there are people publicly saying that that is their wish; there are people who would like to see failure—I agree with Lord Spens in this. If they simply took subsections (3), (4), (5) and (6) and said, "These are the gateways provided by the Tory Party; therefore we have an absolute right to march through them causing the maximum confusion", that would be disaster. The question that would then be asked would not be, "Why did we not amend the Bill?" The question that would then be asked is, "What do you do with immunities granted a hundred years ago to men who were very weak? What are you doing keeping them for men who are now very strong and abusing them, right, left and centre?" That is the real, basic question that would then be demanded of us.
My Lords, may I say I am not at all anxious that that question should be asked. But whether it is asked and what is done is not going to be a decision of the Tory Party; it will be decided by the actions of the trade unions themselves. And the demand that will come will not be just a sort of local political demand; it will be a public demand and it will be made,
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by, among others, millions of trade union members themselves, because their attitudes—and the noble Baroness mentioned this a little time ago—are changing. The noble Lord, Lord Robens, mentioned it too. Their attitudes are changing and they are weary of what has happened. They will demand change. But, my Lords, if it comes to that, it will not be minor amendments, it will be major amendments going to the very fundamentals of the trade union movement.
All these great questions of immunities should of course be studied and this Green Paper will be produced. I would ask the Lord Chancellor, if he can, to give us some information on the timing of the production of that Green Paper. I should like to know also, when it is being produced, whether it will include an account of European experience, because it appears to me that with hardly any secondary action at all trade unions on the continent of Europe seem to get on very well indeed.
These are all very proper questions to ask, I think. For my part I pray that this Bill, as it is drafted today, will work. I do not want to see drastic changes. I prefer the old ways, and I think the older I get the more I prefer the old ways. Even if immunities have been there for a long time, wise men, the kind of men that many of us in this House knew, such as Arthur Deakin and Ernest Bevin, were capable of handling great privileges and power and immunities without doing great damage to the country. It should still be possible to do this.
I have always sought to avoid attacks upon the trade union movement. Even in the course of the general election it was the standing order of the Conservative Party Central Office that the attacks should be limited to other parties, and should not be made upon the trade union movement. I think that it sometimes surprised the Labour Party to be told that that was our rule. Nevertheless, I believe that it was the right one.
Lord RENTON: My Lords, I wonder whether my noble friend will allow me to intervene, since he has just mentioned the part that he played—a notable and distinguished part, if I may say so—as chairman of the Conservative Party. In view of what he has just said, I wonder

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how he figures that we are carrying out the pledge given when we said:
"We shall ensure that the protection of the law is available to those not concerned in the dispute, but who at present can suffer severely from secondary action".
Lord THORNEYCROFT: That is true, my Lords. May I confess an appalling weakness as chairman of the Conservative Party. It is that I have always put the future of my country beyond the party manifesto. I know that I shall get into trouble for that, but I say from the bottom of my heart that if everybody would follow that rule, it would be so much better; it really would. I thank my noble friend for raising that point, and of course I entirely endorse the principles to which he adheres.
I turn now to the point that I want to put to those who support the amendment. I admit that there is much in the legal argument that they put forward. I even admit, if I must, that something slightly different was in the party manifesto. I admit all that, but I ask those who support the amendment to remember that in politics one ought to look a little beyond those things. One ought to look at what is happening in a country. One ought to look at the scene that is developing around one. One ought to remember that if one wants to achieve great things, one should look for friends even beyond the boundaries of one's own party. One should remember that today there are millions of trade unionists who are desperately keen that we succeed. I believe that this desire for success extends probably to all parts of your Lordships' House. Let us at least give it a chance; we might not have another one.
6.33 p.m.
Lord McCARTHY: My Lords, it falls to me to explain the view which we on this side of the House take of this amendment, and I want to address myself to the amendment, even though it would be very tempting to address myself to the clause. As the House will know, we have put down a whole series of amendments to the clause and we shall be moving them later tonight. I must say that much that has been said in favour of the clause by supporters of the clause and of the Government on the other side of the House has not made the situation easy for us.
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However, I set that point aside—because we shall later tonight come to the question of what we think about the clause—other than to say that many of the things that have been said on the other side of the House about the importance of the trade union movement and of carrying the trade union movement with you, as well as the importance of listening to what the trade union movement is saying to you, would have been much better placed earlier in the debate. If they had been sincerely expressed in those terms earlier in the debate, then some of our at least more modest amendments might have been listened to.
I want to turn to the amendment because if I am to urge—as I want to urge—members of my party to vote against it, then I must turn to it itself. It can be said for the amendment that it is simple; certainly that it is simple in terms of any comparison which may be made with the clause itself. That point has been made by many previous speakers—and many of them much more qualified than I am to estimate the complexity, or relative complexity, of legal clauses or amendments.
However to some extent it is not all that simple. It is not all that simple because in the end it is based on a definition of secondary action which although extremely simple in one way, is complicated in another, and of course in effect it lifts that definition of secondary action from the clause itself. I say that because the proposers of the amendments are in fact seeking to banish all forms of secondary action in the terms in which secondary action is defined in the clause itself, without any of the gateways, without any of the ways round or any of the avenues of progress which, however, complicated and difficult they may be, still relate in the clause itself. That really is the question that we on this side of the House have to decide. We are being asked to decide whether we want to support an amendment, which in the terms of secondary action as defined in the Bill—which depends on a fortuitous combination of two conditions: a threatened or broken employment contract; an employer party to that contract, but not to the original dispute—will in fact draw a line around legal strike action or industrial action of any kind.

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As has been said on the other side of the House, it is not accidental that the CBI, the EEF, and the BIM, and other institutions for all I know, are sending telegrams and letters to the Government, the supporters of the Government and those who might be supporting the amendment, urging them that this terribly simple way around the problem is not really effective and practical. I say that because the CBI and the more practically involved members of the Engineering Employers' Federation, and even perhaps a few members of the British Institute of Management, though very few members of the Institute of Directors, actually know the circumstances in which secondary action arises.
Noble Lords really must seek to understand that what workers want is not disruption. They do not want secondary action. As a noble Lord on this side or the other side of the House said a little while ago, they do not enjoy holding the country to ransom, or causing disruption. That is not what they want. What they want to be able to achieve is effective industrial action, when they feel that they need it. The plain fact is that the question of whether one is driven to using picketing (as I mentioned earlier today) or to using secondary action in the terms in which it is defined in the clause or the amendment, involves a whole series of circumstances, most of which have nothing to do with the workers who are actually involved in the dispute.
The matter depends, for example, in the first instance upon the size and availability of an alternative labour force. Those workers who are highly skilled, who are in a strong labour supply position, will not need secondary action in order to secure an effective industrial dispute. It also depends on the size and availability of substitute products or services. If the employer is a monopoly employer, if he produces a perishable product, as is the case in Fleet Street, secondary action will not be needed. It depends upon the consequences to society and to employers of the denial of supply. If the denial of supply is catastrophic and immediate, as it would be, for example, if the electricity workers came out on strike, there is no need for secondary action. The matter depends upon the solidarity and the readiness of the workers themselves when it comes to supplying
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the alternative goods which are involved in the primary action.
So there is a whole series of factors which determine why particular workers, in order to mount effective industrial action, move across what to them is a fairly imperceptible, or at least an ambiguous and a confused, boundary between primary action, in terms defined in the clause and in the amendment, and secondary action. What we are saying, and what I would stress to my noble friends behind me, is that the movement over that line has nothing whatever to do with the justice of the cause. It has very little to do with the long-term consequences for society as a whole. Just as dangerous and insupportable consequences can come from powerful groups involved in primary action as from less powerful groups involved in secondary action—and that really is the elementary principle of justice. If one is to have the right to strike, if one is to have the right to use industrial action, one cannot have arbitrary, meaningless and (to the workers involved) unjust boundaries—simple boundaries, if you like—marked round them, one labelled, "Primary" and one labelled, "Secondary"
In that sense, therefore, with all its ambiguities, with all its difficulties and with all its uncertainties, about which we shall be saying much more later on tonight, we prefer the clause. This is not to say that trade unions will trace their way through these provisions; this is not to say that one wishes to defend or support each use of secondary action; it is not to say that one does not accept that sometimes strikers go too far, that sometimes they pursue unjustifiable cases and sometimes they cause an unjustifiable degree of disruption. But that has nothing to do with drawing simple lines around primary and secondary action in the way in which this amendment seeks to do; and for all those reasons I would advise my noble friends to go into the Lobby against this amendment.
The Marquess of LINLITHGOW: My Lords, before the noble Lord sits down, may I ask him to attend to a particular point of fact, because I am sure he does not wish to be inaccurate. To the best of my knowledge I believe that, although the Institute of Directors may support the

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amendment, at the moment the CBI do not. I wonder whether he would like to correct that.
Lord McCARTHY: My Lords, I did not say that the CBI supported this amendment. I am sorry if I gave that impression.
6.42 p.m.
Lord ORR-EWING: My Lords, I speak as honorary secretary of a cross-party group led by Lord Spens, our chairman, and supported by many Cross-Benchers and many on these Benches, as well. I do not speak as a lawyer: I speak more as someone who has spent 30 years in parliamentary service and who has spent all the spare time possible in a parliamentary life in industry and, in particular, in the engineering industry. However, before I turn away from the law I should like to quote something, because it has been said very widely that these amendments outlaw secondary action. Like others, I have taken legal advice on this, from a Mr. Edward Grayson, and I should like to quote the actual terms in which he replied; they are quite short. He said:
"Lord Orr-Ewing's amendment simply would not outlaw secondary action. There would still be immunity from legal action brought by a party to the dispute even where he was complaining of interference with a commercial contract by secondary action…as it stands at present. The difference is there would no longer be immunity in those circumstances against legal action by a party so injured who was not a party to the dispute".
That has the advantage that it would bring it more into line with our manifesto. I, like Lord Thorneycroft, also put the national interest ahead of the manifesto, but it is nice to be on-side, particularly with those small and weaker firms who voted for us in the last election in very large numbers in the hope that they would be free from the harassment which they have had in the past from secondary action. Of course, if you give the employer in this type of firm his common law rights, very rarely will he be able to exercise them. He has not got the time; he has not got the money and he would not wish to wreck his industrial relations in that firm unless he was really desperate. But we still said we would protect him and would give him the right, and I think we should try to do so by amending this particular clause.
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Our group has supported Mr. Prior's Bill and also his plan for a step-by-step approach to improve trade union legislation. There have been, I think, to date, some 20 Divisions in this House, and most of us in the group have been in solid support. It is only on Clause 7, on which we got something last night, and on Clause 17 that we are deeply critical. Yesterday, on Clause 7, the Lord Chancellor gave us the assurance we wanted when he stated that the deeply-held personal conviction certainly included political beliefs, and I hope he is going to be in his most benign mood this evening, though I fear we may not get quite the same help.
I think noble Lords will agree—and much has been said from even the protagonists of this Bill and this drafting—that this clause is obscure and very difficult to follow. On Saturday, the Guardian described it as,
"an obscurity within an enigma inside a muddle".
It seems to me that is a reasonable definition for most of us.
It is true that various organisations of employers have come out in support of the Bill and the clause as now drafted, while others have condemned it and particularly criticised its obscurity. I read today the views of the CBI, which speaks mainly for the big firms—and I think I must submit that the big firms can probably afford the best industrial lawyers and the delays, while the middle and small firms can neither afford the time nor the money. Yesterday, the Government Whips were circulating copies of a letter from the Engineering Employers' Federation. I am connected with several firms which are members of that organisation, and it is obviously not possible, before they write a letter of that sort, to consult everybody. Certainly the three firms that I checked with this morning had not been consulted before the letter was put out. But I do not hold that against them, because any big organisation cannot consult their individual members; and certainly Clause 17 deserves study in depth before a conclusion is reached. The Institute of Directors—I think it is over 30,000 members—believe it to be a disaster and an obscurity. The Associated British Chambers of Commerce take the same view, and they badly want it changed. So, my Lords, broadly, you

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could say that, "You pays your money and you takes your choice", when you want evidence on this issue.
Mr. Prior, whom I have counted as a friend during more than 20 years of parliamentary life, has made it clear that he does not want to change this clause in any way. We do not suggest that our amendments are a final solution to the problem, but we believe they are a means to an end; a way of getting this clause considered further and afresh by the Government and by MPs in another place. If we do not send it back among the 14 Lords amendments which are already to be sent back to the Commons, they will have no such chance to look at it again. I have said that we support the step-by-step approach, but in Clause 17 the Government seem to me, anyhow, to have taken a giant step towards conferring full immunity to the trade unions for secondary action; and, as has been said already, if a Conservative Government extend trade union immunities, will they ever be taken away again by a future Labour or even Liberal Government?
We are the only country where industrial relations are founded on trade union immunities. I have to say, having studied the European position—and Lord Thorneycroft touched on this—our industrial competitors have no such handicap, and it is not an accident, I think, that they have much better industrial relations, fewer strikes, virtually no secondary action and very few closed shops. The Government's discussion paper on immunities is due, we are told, this autumn; and, obviously, with such a tremendous step, widespread discussion to replace immunities by trade union rights and duties must take place before any legislation is framed. I cannot really see the Government starting a Bill to put this radical new approach into practice a year from now. I think it is much more likely to come in 1982 or even 1983.
There must be doubts, my Lords. If unemployment forecasts are right, we are going to hit 2 million or even more; and if trade union threats that we now read occasionally are realised, will this further major step ever be taken as we approach another general election? In the meantime, when the whole immunity is to be discussed and restructured, it seems strange
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that we enlarge the area of immunity as is done in Clause 17. So far, Mr. Prior has studiously avoided any commitment at all to legislate; and the Government here have done the same. It is comforting to those of us with doubts that the Prime Minister said in the Commons last week, "This is the first step, not the last step". I hope that my noble and learned friend the Lord Chancellor will renew this undertaking in firm and good English prose—if I may quote this morning's broadcast—in his speech at the end of this debate.
There are serious doubts in every quarter whether immunity should be given for secondary action to all who are deemed to be first suppliers. No industry can be more vulnerable than our sorely-pressed motor industry where each vehicle manufacturer depends upon a flow of components from a host of companies, up to 500 in number, who deliver components daily or three or four times a week. The big four, Ford, Vauxhall, Talbot and British Leyland, each deal with about 500 different suppliers. Last year, to show the importance of these components to our position and prosperity as an industrial country, and to our employment, our exports of cars and lorries totalled £800 million, but our exports of components totalled £2,000 million—two and a half times as much. Any disruption to these suppliers will have a tremendous effect upon our wellbeing and upon our employment. Also, disruption by secondary blacking, to production and thus to the flow, and thus to the deliveries, will further undermine the confidence of our overseas customers who, once they lose confidence in getting their supplies punctually, will place their orders elsewhere and will create jobs elsewhere. That is why I believe that this clause is at present drafted obscurely and too widely.
Earlier, I pointed out that the various employers organisations differed. There seems to be some unanimity in only one thing: that this clause is desperately difficult to understand not only by employers but by the managers who will have to work it, and even by the barristers and solicitors. I do not want to quote the letter—whether it was written in a personal capacity or whether written as from the president or leader of the Bar Society—but I think that one must take

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note of what is an important pronouncement, certainly when written to the Prime Minister, which has never been done before. What was said here by the chairman of the Bar Society was that the wording of this clause is depressingly convulating and bristles with words of uncertain and arguable interpretation. He added that our amendments were clear and crisp; and we have had the same comment from the Labour Benches, too.
I could quote (but my noble friend Lord Spens has quoted) the president of the Law Society. I am sure that my noble and learned friend the Lord Chancellor when he comes to reply must realise that
"as a result of this clause and the uncertainty"—
and this is the president of the Law Society—
"we might see the ugly spectacle of the ridicule of the law".
He must treat that with seriousness. I hope that my noble and learned friend the Lord Chancellor, who must be disturbed by these views of legal luminaries as much as we are, will be able to give some assurance and comfort.
We have had tremendous support from the press for our viewpoint—from the Daily Telegraph, The Times, the Guardian, the Daily Express, the Daily Mail, the Sun. Only the Daily Mirror asks us not to move this amendment and not to return it to the House of Commons for re-deliberation. The other place simply did not have time to deal with this clause in depth. We learned from my noble friend Lord Gowrie—and I must thank him for his courtesy and congratulate him on his effectiveness in handling this Bill, it was masterly; he has made no enemies in any part of the House and many friends—that the legal draftsmen had been preparing Clause 17 for six months. This clause appeared for the first time in the Commons on Ash Wednesday. The Commons rose, as we did, on Maundy Thursday; and when we came back—Parliament returned on the 14th—there were only three days before the debate had to take place in the House of Commons. So we are not unreasonable when we say that they did not have time to consider in depth this very complicated and difficult clause.
I believe it to be our constitutional duty to give the Commons a chance to look at it
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again. Some urged no delay. The CBI made this point as did the EEF. We have already passed 12 Lords amendments in this House. They must all go back. There were two more Lords amendments made today. That is 14 in all, which must go back to the House of Commons for reconsideration. Why not add this clause which in many ways is the most important of all? The Bill itself will not come into effect until four weeks after the Royal Assent. So that a day or two in trying to get the matter right is surely worth the sacrifice.
We claim in this House to be broadly representative of opinion in all the communities in all parts of the country. Certainly, every poll has suggested that in our desire to reduce the effect of secondary action we have the popular support of the great majority of our nation. Certainly, from the Conservative Benches we have also the support of many constituency organisations who think the Bill ought to be rather tougher, and certainly simpler to understand. Those on these Benches who have not made up their minds —and I know that it is an agonising decision when you have to vote against some of your friends and against our amiable Whips in this House.
Several noble Lords: Oh!
Lord ORR-EWING: My Lords, people have flattered me; and I do not see why I should not flatter the Whips. My noble friend Lord Thorneycroft, from one of the great, effective speeches that he always makes, believes passionately that we should not send it back to the Commons. I reflect that in January 1956 he, as Chancellor of the Exchequer, believed passionately that we should cut public expenditure. It was not then just a vote. It was that he resigned honourably. Of course, with all his aptitude he came back to influence us and is now the chairman of the Conservative Party; so for the young people here who may have political ambitions, I say that it is no disadvantage to vote against the Whips. There is a living example of it there in the shape of my noble friend. You quickly come back into power and you may become chairman of the party.
In a more sincere and serious mood. I believe that we have an obligation here to give the other place a chance of looking

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at this very complicated clause. I believe that this is a duty. I believe that this is the aim for which we should vote tonight, and I hope that I will have the support of many to make this clause simpler in the long run, more straightforward and more deeply understood than it is at present.
6.58 p.m.
Lord HUNT: My Lords, I should like to ask the noble Lord one question. At the beginning of his speech he said that the amendment standing his name and in the name of the noble Lord, Lord Spens, and others had the support of many Cross-Benchers. I should like to ask the noble Lord to justify the adjective "many" —just in case it gives the impression that there is on the Cross-Benches here a solid phalanx of support for this amendment. I should be surprised if many CrossBenchers had not come to this House this afternoon intent on listening to the arguments and on making their own independent and individual judgments on the balance of advantage of those arguments.
Viscount HANWORTH: My Lords, although I stand here, I am a Member of the Cross-Benches. Having initially supported an amendment to Clause 17 and having attended one of the meetings to discuss it, I am now convinced that we should be guided by the Government and support them in the Lobby. I will stick my neck out and say that many Peers of whatever party who put the national interest first would, in principle, support these amendments. This is because union power is in many cases unrepresentative, undemocratic in the popular sense of the word, short-sighted and not in the national interest.
But, my Lords, it is not principle but pragmatism that matters. I have not discussed the matter with union leaders; Mr. Prior has done so and Mrs. Thatcher and the Cabinet have considered in the circumstances what is possible. With great reluctance, I will therefore vote against this amendment and hope that others who take a pragmatic view will also do so. Finally, I make the point that the last thing we should do is to enact ineffective legislation which will bring the law into disrepute. We have precedents for doing that. The fact that this clause may not be very clear may
1106
well give an opportunity in the future for defining more exactly what the Government meant.
7.1 p.m.
Lord LEE of NEWTON: My Lords, may I make a short intervention into this fratricidal strife? The noble Earl, Lord Gowrie, was saying that this may well be a preliminary to what the Green Paper will show. Are we then to suppose that this is a paving Bill to a far more stringent and maybe vicious Bill later on? Apparently from his arguments—and those we heard just now—there is the belief that they must curb trade union power because of what happened during the winter of discontent.
A noble Lord: Hear, hear!
Lord LEE of NEWTON: The noble Lord says "Hear, hear". In that event, he does not understand what happened in the winter of discontent. The leading union in that period was NUPE. Does anybody really believe that they possess any industrial power? As a matter of fact, what happened was that feeling that they had certain rights and certain desires for increases in incomes, they struck and then found that it did not matter much whether they were on strike or not. It was this weakness which led to the excesses which, according to noble Lords opposite, are now construed as great overwhelming trade union power. It was nothing of the kind.
May I suggest that on Clause 17, which has been variously described, whatever it does to our economic productivity, it will certainly increase the productivity of the lawyers. There cannot be two or three noble Lords in the House who are agreed as to what it really means. The noble Earl, Lord Gowrie, quite fairly and properly, pointed out that the freedoms of British trade unions are not based so much on laws as they are on immunities. Immunities have been used as if the trade unions are above the law. The noble Earl was quite right in pointing out that the right to strike is based on immunity.
If we are now to have not only this Bill—to some of which I do not object; I do not object to taking Government money for ballots and things of that sort—

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but if we are now to be asked to support either side in the controversy that is going on now because they are introducing a paving Bill to lead to an attack on trade union immunities which may well circumvent the right to strike, then I would not agree with my noble friend Lord McCarthy. I would not support either side, I would say "a plague on both your houses".
I hope that the noble and learned Lord on the Woolsack will address himself to some of these issues. Is it his opinion that the winter of discontent was provoked by excessive trade union power? For my part, I say it was nothing of the kind. That is a complete misreading of what happened. There were no really strong trade unions involved in the so-called winter of discontent. It was weakness by people who felt they had a grievance who then, in my humble opinion, went too far in the things they did because they discovered there was no real power in their industrial action.
I want to see that kind of thing vetoed as well. When we talk about bringing this in here because of overwhelming trade union power, I go back a long way. The 1927 Act was revenge for the General Strike of 1926. In my opinion, there is an element of that in this Bill, arising from what happened in the winter of 1978. I therefore ask the Party opposite that if they really want to be believed that they are genuine in wanting to get a fair approach to the problems which exist in industrial society, they will not base themselves on putting forward a proposition that all they are concerned about is curbing excessive trade union power. I do not believe them, for instance, when they tell us that the last Labour Government encouraged that. It is quite untrue. All they did was to bring back the conditions of the 1906 Act which had been eroded by various legal judges.
Therefore a great deal may well depend on how the noble and learned Lord decides to wind up this debate. Certainly so far as I am concerned I should like to vote for the Government because I think that the amendments are vicious and that they will lead to disruption which is quite unnecessary. Unless that can be done, for my part I will finish with "a plague on both your houses".
7.7 p.m.
Lord RENTON: My Lords, I understand that there is a desire to finish this very important debate and reach a decision before dinner. Nevertheless, I must ask for the indulgence of your Lordships. Some of you may think that I ought to be feeling like my biblical namesake, faced not with one Goliath but with another. But I shall not be able to slay any of them and may well be slain by the one who follows me. That does not deter me from answering some of the points which have been made—and, I say with respect, not validly made—in this debate by noble friends for whom I have enormous regard.
My noble friend Lord Gowrie has been so patient since the Committee stage in indulging in conversations with my noble friends and myself. He said today that the criticism is a criticism solely of policy. I cannot accept that narrow view of this important matter. Surely, if the policy is right but not implemented in a sound way from the legislative point of view, then your Lordships' House has a duty to perform. The noble Lord, Lord Wigoder, and other noble Lords have pointed out how defective the drafting is. In my opinion, it need not have been.
As I said during an earlier stage, it would have been possible to do what has been done in, for example, Clause 16 which rewrites Clause 15 of the 1974 Act. The Government could have saved a great deal of trouble in introducing clarity into this Bill—in a very difficult piece of drafting I concede—if one does not have to refer back first to the 1974 Act, amended by the 1976 Act. At a very late stage, thanks to the courtesy of my honourable friend Mr. Patrick Mayhew, the Under-Secretary of State, my attention was drawn to the very important Section 30(5) of the 1974 Act which defines associated employer. All these provisions could have been gathered together perfectly well into one clause, and that could be done quite easily now if the draftsman were to get his skates on between now and next Monday, when we have the Third Reading. So I implore your Lordships to realise that this is not just a question of policy. It is a question of how the policy reaches the statute book.
Now may I briefly say a word about the policy? First, may I endeavour to answer the point made by my noble friend Lord

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Thorneycroft, after I had intervened in his speech, when he reminded us, and quite rightly reminded us, that there are times when we have to put the country first. My understanding of those millions who voted in the general election is that this Government ought to be putting the country first, by doing what they said they would do at the time of the election. What they said perfectly plainly, not only in the manifesto but in many speeches was, in effect, "We are going to use the law in order to stop the damage and the unemployment caused by secondary action, including picketing".
There has been a very great deal of talk about the step by step approach. May I say that I accept it. But on this question of confirming the immunities contained in the 1974 Act, it has not been a step by step approach. It has been a giant stride towards confirming those immunities. We are told about balance. The word "balance", undefined, has been used a great deal in all these discussions by Government spokesmen and others. But the feeling which I have is that there is not balance; that the immunities are being consolidated and confirmed to such an extent that they cover most of the important, well-known customary forms of secondary action.
I was happy to join Mr. Prior—and may I say, having mentioned his name, that for many years he has been a good friend of mine for whom I have a high regard—and my noble and learned friend Lord Rawlinson in opposing the 1974 and 1976 Acts, especially on this question of immunities. But I never dreamed for one moment in those days that I should one day be expected to confirm the more important part of those immunities, while being asked to be content with the release of those immunities which cover a much smaller field. It may be said that this is a matter of opinion, of judgment. Of course it is. But we are entitled to our opinion and we are entitled to remind the Government of their undertakings at the general election.
If I may—because I want to be very brief and I am trying to speak fairly quickly—I would just remind your Lordships once more of the tremendously wide effect of subsection (4), which deals with associated employers. It was mentioned in full by my noble friend Lord
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Spens. But it really is extraordinary that this whole conception of immunity with regard to secondary action should be applied to all of those who come within the definition of "associated employer". It must include not only the subsidiary companies, which do a very large part of the manufacturing and retail business of this country, but, for example, every single concern which is controlled, directly on indirectly, by the National Enterprise Board, and every single concern which is controlled by each nationalised industry. The ramifications are tremendous. Surely it is not unreasonable that we should ask the Government, in these circumstances, to see whether they really have got the balance right.
Very great doubts have been expressed, not only by lawyers—and one can understand the attitude of lawyers who have seen all these cases going up to the House of Lords and do not want to see this process repeated indefinitely—but by business people, especially small business people, and many others who are so worried about what may happen. We are told: "All right, let us get it on the statute book. If it goes wrong, we will correct it later." I do not think, with great respect, that that is a sensible way to legislate. Surely, it would be better to legislate in such a way that if there is no trouble we can extend the immunities at a later stage. But once the immunities become consolidated on the statute book, it will be very difficult to change that. It would also be difficult to convert them into positive rights following a Green Paper, once they have been written into the statute book as immunities.
I feel slightly embarrassed by being so rushed. There was much more that I wanted to say. But I implore my noble and learned friend the Lord Chancellor to give us some hope that, at least from the drafting point of view, he will improve this clause.
7.17 p.m.
The LORD CHANCELLOR: My Lords, I hope that I am not bringing this debate to an untimely conclusion and I, equally, will try to be as short as it is legitimately possible for me to be in regard to the large attendance in your Lordships' House and the great importance of the matters which we are now discussing. But I begin by saying a word

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—just one word—about the constitutional duty of this House. We vote in favour of this amendment, if it is a good amendment. We vote against it, if we think that it is a bad amendment. We do not send things back to the Commons which are bad and which we do not believe in. We do send things back to the Commons if they are good and we do believe in them. That is the only test, surely, of what we are about tonight. I am going to direct my words—as short as I can make them—to the question, and solely to the question, as to whether the amendment is right, or whether the terms of the Bill as drafted are preferable to the amendment.
I take, of course, the distinction drawn by the noble Lord, Lord Wigoder, very early in the debate between the merits of the clause and the merits of the drafting. But I do not share his enthusiasm for the elegance of the amendment. If the omission of the principal parts of the clause, as defining the policy of the Government, is the mark of good draftsmanship, the amenders will of course demand the Nobel Prize. But I could have made a very much simpler and more elegant amendment than that, simply saying, as would be the effect of it,
"All secondary action in industrial disputes is actionable, except those which are directed solely at the employer concerned with the primary dispute".
But that is not the policy of the Government and, though I fully share, as he well knows, the enthusiasm of my noble friend Lord Renton for Keeling schedules and for consolidated legislation, I think we have more important things to do tonight than to consider whether, before Monday and the Third Reading, we can insert one in the place of Clause 17. I therefore direct myself to the policy behind the clause.
What is the policy? Obviously all industrial action—yes, all industrial action —causes loss to innocent third parties. None causes more damage and loss to innocent third parties than the primary action itself. Secondary action also causes damage and loss to innocent third parties. But my answer to my noble friend Lord Renton is that my speech, and what follows in it, is the way in which we should implement our election commitment. I believe that it is the right one.
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In recent years, secondary action has spread the damage, which is unavoidable and inevitable in all industrial disputes, far beyond the point at which it is effective legitimately to achieve the purposes of the primary dispute. In our view, it is urgently necessary to bring back a sense of social responsibility into the minds of those who contemplate secondary action by giving innocent victims the right to strike back by getting an injunction or compensation in appropriate cases. That is the first proposition. But it is also right —I beg my noble friends to believe that it is also right, and I beg them to believe as well that it is also prudent—to take account of the legitimate feelings of solidarity in the minds of trade unionists to assist their fellow workers by stopping supplies getting to the concern in primary dispute.
If we did not take account of this desire to help, we should be guilty of great social injustice and great political imprudence. We should be alienating all our own supporters in the trade union movement, and our own supporters in the trade union movement are very numerous indeed. We should be encouraging a widespread defiance of the law by seeking to interfere, if I may coin a phrase, with the deeply-held personal convictions of trade unionists both inside and outside the Conservative Party and we should be stopping a perfectly legitimate weapon in the hands of the wage-earner. To take the simplest form of secondary action, we should be abolishing the sympathetic strike at the point at which the sympathetic strike is legitimate—that is, when it is designed to stop supplies going to the concern in primary dispute.
The present situation, on the other hand, is intolerable. The effect of the decision in McShane and other cases is that the Labour Government's legislation legalises virtually all secondary action, no matter how hare-brained, no matter how much the damage is scattered abroad among the breasts of the people. no matter how remote the chain of suppliers or the customers.
So what have we done? All the immunities confirmed by Section 13 of the labour legislation are to do with commercial contracts. Therefore we are concerned in Clause 17 only with contracts, and in effect with interference with com-

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mercial contracts. We retain the immunities in three separate cases alone. They are, in fact, cases which satisfy what we consider to be the legitimate and deeply held personal convictions of trade unionists, as old as trade unionism itself.
The first is the supply or delivery of goods to the concern in primary dispute by a first supplier or to a first customer. Everything else is far too remote. The second is the use by a sister or daughter company of substituted goods or substituted services for the goods of the concern, the sister or mother company, as the case may be, in primary dispute, which trade unionists would regard, we believe legitimately, as the use of blackleg labour. The third is that we retain the right of employees in the concern in primary dispute to picket their own place of work, as allowed in the previous clause which we have been discussing, to support peacefully their own demands.
I do not think that these are legitimate things for my noble friends to complain of. I must say to my noble friend Lord Renton that if I had thought that the Conservative Party in its manifesto had taken the line that it was going to stop all secondary action, I should certainly not have supported the manifesto myself and I should certainly not have accepted office in the present Government. So let us get that absolutely clear. I am not reneging on our election speeches, but I am not going to take clauses out of it out of context and say that we agreed to do things which I believe to be utterly wrong.
Obviously our proposals will not do everything. They will not stop the widespread misery caused by the primary dispute itself, especially when this is limited to a few key workers, like that in the earlier part, but not in the second part, of the Isle of Grain. They will not stop the economic hardship caused to first customers or to first suppliers which, incidentally, is at its greatest when the stoppage at the primary concern is total. That is not affected by the amendment or by ourselves.
I do not see how one can do it. We did not do it, and we did not attempt to do it, in our 1927 Act—my father's Act—which I remember just as well as the noble Lord, Lord Lee of Newton. We did not stop it, and we did not attempt
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to stop it, in our 1971 legislation. What we have done is to limit the exercise of immunities granted by what we, rightly or wrongly, consider to have been the ill-considered Labour Government's legislation. This we have done by two guiding principles, two guiding principles which I believe are clearly to be seen in the draftmanship of this section: the first principle, the test of the legitimacy of immediate proximity and the corresponding prohibition of remoteness and, the second principle, the substitution of the objective test of likely effectiveness for the subjective belief in effectiveness which has obtained since McShane.
There are a lot of people who will suffer from irresponsible, militant, trigger-happy action, despite what we have done. There always will be, until we can change the climate of opinion and until we can pass further legislation, if that proves to be necessary. But what we have done is the most that we can do in the context of Section 13 of the Trade Union and Labour Relations Act 1974, as amended, which is the context and the only context in which Clause 17 of our Bill is operating.
I must say in passing that the noble Lord, Lord Spens, was quite wrong about national corporation strikes and that my noble friend Lord Renton was quite wrong about associated companies. Of course associated companies have the meaning which he attributes to them, but my noble friend omitted to look at the earlier part of the clause which he wishes to omit; that it must be action which is directed at stopping substituted goods from reaching or going from the primary concern.
It is perfectly legitimate, I believe, for trade unionists, responsibly and with careful consideration of the consequences, to recognise that a family of companies must not in fact use one as a substitute for another in the course of a primary dispute. It is only if it is targeted on the primary concern that it secures the immunity in the subsection of our clause. Contrast this with the industrial effect and the legal policy involved in the test of the amendment under discussion. In the first place, it deprives the primary employer of any remedy at all against illegal secondary action. I wonder why? If this is a sop to Cerberus, indeed this is

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pussy-footing with a vengeance. In the second place, with this solitary but I think not unimportant exception it stops all secondary action whatsoever, no matter how responsible, no matter how carefully aimed at the primary target, no matter how likely to achieve its legitimate purpose. I ask the House to decide whether that is social justice. I ask the House to decide, is this the thing which the millions of Conservative trade unionists thought they were voting for at the last election? Is this likely to achieve industrial peace? I believe that these questions have only to be asked to be answered.
Of course I have not forgotten a number of counter-arguments on the other side. Our clause does not forbid action to stop a contract being made; neither does the amendment forbid it. It does not stop direct approaches to a secondary employer unless they are accompanied by threats of industrial action. Neither does the amendment. Both are targeted on secondary industrial action or the threat of it. It does relate to illegality of purpose or principal purpose, but these are questions of fact, not law, and the difficulties to which they give rise are difficulties which are not legal difficulties but questions of fact—questions of fact which responsible trade union officials and management can perfectly well be counted upon to decide for themselves and which persons who are entitled to the dignity of a high court judge or to practise responsibly my own profession, can perfectly be trusted to decide on the facts and in the light of their experience. It is the sort of question which judges and juries, advocates and lay magistrates are deciding every day of the week. They are well able to distinguish the bogus from the real.
So I urge my noble friend to have a little more faith in the integrity and intelligence of our colleagues in the Cabinet. We have chosen our targets in Clause 17 carefully, where we think we have public opinion behind us and where we think attempts to sabotage or repeal our measures would not be supported either by public opinion or the national workforce. Let us not hit out blindly or be misled by over-simplified argumentation. Let us go forward, as my noble friend Lord Thorneycroft asked us to
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do, clear-sightedly, calmly—not only justly but by being seen to be just except by those too prejudiced or too hostile to the aims of a free society to be persuaded by reason.
My Lords, I answer the two questions put to me by my noble friend Lord Thorneycroft. Yes, our Green Paper will come out in November; yes, it will contain a direct reference to, and exploration of, the European experience. I am sure my noble friends, whose support I value so highly and whose judgment I so sincerely respect, will not seek to embarrass either my right honourable friend the Secretary of State or my right honourable friend the Prime Minister by pressing too far or too fiercely matters on which there may be legitimate controversy or where an important move may give specious excuse for overturning all our patient research and work on which this Bill has been so carefully drawn. There are many other things to do which will be in the scope of the Green Paper but they are not appropriate in this clause. Let us not blind ourselves to the merits of this clause by the reflection—which is true—that it is not designed to achieve or will not achieve all things necessary to improve industrial relations in this country. The noble Lord, Lord Hankey, said that we were commissioned to put everything right. My Lords, only God can put everything right.
Lord SPENS: My Lords, first I want to tell my colleagues on the Cross-Benches that neither my noble friend Lord Orr-Ewing nor myself has any idea as to how many of your Lordships will support us and in fact I told the press that yesterday morning. You are here, and I am very grateful to you for coming, to judge for yourselves as a result of this afternoon's debate.
I just want to draw other noble Lords' attention to what I thought was one very pertinent remark made by the noble Lord, Lord McCarthy, when he said—and I can only paraphrase because I cannot write shorthand—something to the effect that just as dangerous results can be achieved by secondary action from less powerful groups as by primary action from the more powerful groups. He then went on to say that he would advise his colleagues to reject this amendment. Of course he

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would, because under the Bill as it stands an enormous amount of secondary action can still take place.
My Lords, I am not prepared to withdraw this amendment and I press it to a Division.
7.37 p.m.
On Question, Whether the said amendment (No. 45A) shall be agreed to?
Their Lordships divided: Contents, 41; Not-contents, 249.
[The Sitting was suspended from 7.48 to 8.30 p.m.]

EMPLOYMENT BILL
Report stage resumed on Clause 17.
[Amendment No. 45B not moved.]
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 46:
Page19, line 38, at end insert ("to which another employer is a party").
The noble Lord said: My Lords, we turn from the absurd and for the moment rejected idea of depriving men and women of their right to withdraw labour in some arbitrary area described as "secondary action" which attracted the attention of some 300 noble Lords in the Chamber, to a series of amendments designed to test the Government's present intentions under Clause 17 as it now stands. I say,
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"present intentions", because one of the interesting points for noble Lords on these Benches in the previous debate was of course the Government's clear intention to bring out a Green Paper in November which may well go further. For the record, this clause is being tested in the House with exactly 12 noble Lord's listening to the argument.
There is one point which arose from the previous discussion this afternoon which it is necessary to put on record again. We dealt with it in Committee and on Second Reading. Noble Lords on this side of the House do not, of course accept the proposition that the trouble was all caused by an extension of the immunities in 1974 or 1976. We take our stand as we did previously in moving these amendments, on the character of the 1974 and 1976 Acts described by the noble and learned Lord, Lord Scarman, judicially in 1979—and I have quoted this previously—in the NWL case in the House of Lords. He said:
"Briefly put, the law now is back to what Parliament had intended when it enacted the Act of 1906, but stronger and clearer than it was then".

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There is perhaps no need to try to argue the matter again but that is our starting point and it is obviously rather different from the Government's starting point as they made clear earlier.
Our position on Clause 17, to which all of our amendments are directed, is that it closes its teeth on a much wider area of industrial action than has so far been represented partly by the Government and particularly by the press and the media. If there is one point on which the noble Earl and we are in some agreement it is that the press and the media have misrepresented the character of the Bill. I was interested to note his comments on the way in which the press had not expressed what he considered to be the nature of the Bill and especially this clause and perhaps for somewhat different reasons we agree.
That leads me to the first of our amendments. Since 1906, with the exception of the three years from 1971 to 1974, the definition of a trade dispute has remained broadly the same. Certainly the parties between whom a trade dispute can arise have remained the same. It can be a dispute either between workers and employers represented in some cases by their union and employers' association, or a dispute between workmen and workmen, as under the old Act, or workers and workers as under the present legislation. Of course, there is a very good reason for the second set of parties to be included; namely, that it is not merely a question of disputes between workers of a demarcation character which have to be included. Indeed, the need for such a definition would have receded considerably in the last decade in view of the magnificent work done by the trade union movement itself in diminishing the number of demarcation disputes. The reason for that formula being very wisely put forward in 1906 is that a complex industrial situation frequently ends up in the courtroom with the employer declaring that he is neutral. A recognition dispute involving two unions, involves the employer in an attitude, but it may be that by the time the legal proceedings are taken he will say, "A plague on both your houses". In the courtroom this is represented as a dispute between workers and workers.
Indeed, in the article in the Guardian
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on 5th July—a day or two ago—which was mentioned in earlier discussions, the author said that in contentious union recognition and membership cases the employer almost always has a view and almost always attempts to push for the solution he favours and he would be neglecting his duty if he did not do so. Yet, under this clause any strikes which ensued would leave workers and their officials open to injunctions and actions for damages on the ground, as he later says, that they would be presented as worker and worker disputes. But there is no deception in this, it is the way the situation works itself out in the courtroom.
As we pointed out in Committee, because of the definition of secondary action, all of such disputes will no longer have the protection of Section 13 and therefore to put it positively, workers will no longer have the right to withdraw their labour. That will be the case because secondary action is defined as any form of industrial action with the breach of contract of employment element where the employer is not a party to the trade dispute, and, with the exception of the picketing exception, the gateways of (3) and (4), on which we shall want to concentrate our gaze later, need an employer who is party to the dispute.
So, what in fact has happened in Clause 17 is a covert and a subterfuge to redefine "trade dispute", because worker and worker disputes no longer attract the rights of workers to withdraw their labour. This is a redefinition of "trade dispute" and I do not know where that was in the manifesto. I do not know where it was in the working papers. It is not a matter to which the Government's arguments, before they presented this clause, were addressed at all. Their situation was always where there was a secondary and primary employer. They have drafted on that basis. Because of the unsatisfactory nature of the argument in Committee we felt that we must come back to this matter.
The noble Earl, Lord Gowrie, said at column 694 of the Official Report on 12th June:
"Such action has no immunity under the clause as drafted".
But there was very little argument as to why all such action should have the right to strike removed from it. It is nothing

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to do with the primary and secondary argument. We are still mystified as to why in every such case of disputes which work out in court as being worker v. worker disputes with the employer having an interest but his lawyers being wise enough to tell him early enough to say that he is neutral, immunity should be withdrawn. There was no commitment on this before the clause was produced.
Our amendment is one way of dealing with the point because we add to the definition of "secondary action" that there is an employer who is party to the dispute and, therefore, worker and worker disputes would not be covered. The Government might wish to bring forward other legislation on this. They might wish to consider it in their Green Paper so that we could all have a chance to consult. I should like to know whether the TUC or the CBI were consulted specifically on the issue that worker v. worker disputes should no longer attract a right to strike. On that basis, I beg to move the amendment.
The Earl of GOWRIE: My Lords, we had a run over this field at the Committee stage, although in the context of a somewhat different amendment, and therefore I hope that I need not detain the House very long in replying to it. The noble Lord, Lord Wedderburn, has explained, that his amendment seeks to retain immunity for industrial action regardless, in the context of the previous debate, of whether this is primary or secondary action, where the dispute is between workers rather than being a worker and employer dispute. He has argued that where there is a pure worker v. worker dispute such action has no immunity under the clause as drafted because of the way in which secondary action is defined in subsection (2).
I do not dispute that, but we see in that fact no justification for an amendment of this sort. The fact is that disputes between workers or unions—workers versus worker disputes—which do not also involve the employer of the workers concerned, are so rare as to be hardly remarkable. The realities of industrial life as well as common sense dictate that if there is a dispute between workers or their unions, the employers concerned will be very quickly drawn into it and
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affected by it. For evidence of this fact we need to look no further than the famous inter-union dispute at the Isle of Grain site in which the Central Electricity Generating Board and other employers have necessarily been involved from a very early stage.
The noble Lord, Lord Wedderburn, relied at Committee stage on the Court of Appeal decision in the case of Cory Lighterage v. the Transport and General Workers' Union in 1973, in which the court then ruled that a dispute about a worker's refusal to rejoin a union was purely a dispute between workers. With respect, we believe that this case provides very little evidence for the noble Lord's contention that the courts are ready and waiting to find worker and worker disputes at every turn.
Indeed, the court went out of its way in its judgment to point out how easily such disputes could grow to involve the employer. It judged that it had not done so in this case because the employer had not resisted the union's demand; if he had, then of course he would have been a party to the dispute. As the noble Lord, Lord Wedderburn, well knows, such a finding would not be possible now because of the insertion of Section 29(5) into the 1974 Act, which I understand was put there in order to deal specifically with that aspect of the Cory Lighterage decision.
The end result is that we do not, therefore, believe that in practice Clause 17 will remove immunity from industrial action in the normal run of disputes between workers or unions. Wherever there is an employer who is a party to a dispute, it will continue to be lawful for a union to induce that employer's employees to take industrial action against him.
However, I should like to repeat what I said at the Committee stage because that is pertinent to the specific point put to me by the noble Lord, Lord Wedderburn, just now. If there are found to be pure worker against worker disputes in a few cases, in which employers are merely innocent bystanders, then, of course, we make no apology for removing immunity from damaging industrial action in such cases. Our whole approach in this Bill, as must be clear by now, is to try to provide redress to innocent parties who are damaged as a result of industrial action.

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If an employer is genuinely not involved in a dispute between workers or unions and is himself powerless to affect its outcome, it seems to us altogether right that he should have a legal remedy if he is damaged by industrial action.
The fact is that in real life disputes between workers and workers can be the most bitter and prolonged of all, and we have, regrettably, some recent instances of this. They set worker against worker and union against union. They go against the best traditions of the trade union movement. It is no part of our purpose in this Bill to provide specific protection for industrial action in such disputes. If this clause encourages unions to resolve their arguments—as I acknowledge most would wish to—by voluntary means without recourse to damaging industrial action, then it would have made a small but neverthless not insignificant contribution to industrial peace, and that is why I ask the House to reject the amendment.
8.45 p.m.
Lord WEDDERBURN of CHARLTON: My Lords, I expected little else, except that I did expect the noble Earl to say that there had been consultation on the point with the TUC and the CBI, but he did not say that. It is interesting that the Government have decided to change the basic definition of "trade dispute", which has been there since 1906, which in their previous Administrations they have not even put on the agenda for amendment —except in the 1971–74 period when it disappeared for quite different reasons—which they never consulted about with anyone and about which says the noble Earl, there are very rare but very damaging cases. With no consultation the entire area of worker v. worker disputes disappears from "trade disputes"
I do not accept the noble Earl's view that this could cover primary and secondary in the sense that they are normally used because, of course, so far as the workers are concerned they are all primary disputes, for there is one employer. They are all secondary disputes in terms of the Bill because the Bill defines secondary dispute in a way that gets the answer which it wants. Therefore, the words become meaningless and to workers they are all primary. I take the noble Earl's point on the Cory Lighterage case and, in so far
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as it rested upon the submission to a threat, it would now be dealt with by the 1974 statute—not a section to which I believe the Opposition made any objection; in other words, thereby condoning and supplementing the area of worker v. worker disputes dealt with by the 1974 Act.
There are many other cases. Every lawyer knows of three or four-party situations—an employer, two unions or two groups. Stratford v. Lindley in 1965 was the case of two contending unions which was said by the House of Lords not to be a dispute with the employer but merely a matter of inter-union rivalry—a decision which astonished the trade unions but which did not astonish the lawyers. If the noble Earl is telling me that if the Isle of Grain dispute comes to court in the next few weeks, there is no chance that it will be held to be a worker v. worker dispute or that there is no chance that any similar case of technological change involving rival groups of trade unionists or non-unionists—with the employer having an interest in the real life, as the noble Earl puts it—will be held to be a worker v. worker dispute, then simply on a modest experience of such litigation I must tell him that my experience suggests quite the opposite; that there is a very real chance that it will be held in court to be a worker v. worker dispute. I am not attacking the courts on this; I am saying that the way the matter comes out in labour injunction cases on affidavit is often a very natural way for the lawyers to present it and to have it held by the court. There are quite a number of situations where this occurs. It is a fundamental area which the trade union movement will now see has been removed from legality without consultation, and for no other reason than that, although such disputes are very rare, the present Government, by themselves, in their own ivory tower, have decided that all such disputes are so damaging that they must be removed from legality. That it should not even discriminate between certain types of worker v. worker disputes and others is quite extraordinary. On this point, now that we are quite clear—which we were not in Committee—that this is the Government's intention, we shall not of course withdraw the amendment.
On Question, amendment negatived.
8.50 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 47:
Page 19, line 38, at end insert ("and the purpose or principal purpose of that person is to interfere with the performance of the contract referred to in paragraph (a) of subsection (1) above.").
The noble Lord said: My Lords, I can move this very briefly, but if I do so it is not because it is not a matter of some complexity. The amendment would add to the definition of secondary action the requirement that the organisers of the strike action should have the purpose of interfering with the commercial contract under subsection (1)(a). The reason for that proposed amendment relates to something different. It is that it is our contention that workers cannot know, as the clause stands, whether they are engaging in relevant secondary action or not; because the whole concept of secondary action begins in subsection (2) with the threat or the actual inducement of breach of contract of employment—the strike action, or the industrial action, where the employer is not a party to the trade dispute. But it is such action in relation to a trade dispute. One has to get the trade dispute in somewhere because otherwise one cannot leap off; it is the launching pad that the Government needed for their drafting. This is not just a drafting point.
What I am asking is: What does "in relation to a trade dispute" mean? If there is action taken at what we will call the primary or trade dispute employers' works and there are various groups of workers who are taking industrial action at other works, I would understand what "in furtherance of that primary trade dispute" meant, although I can see perfectly clearly why the Government cannot put that in. I might be able to understand what "in connection with the primary trade dispute" would mean, but I do not understand what secondary action "in relation to a trade dispute" means. I have been to the Shorter Oxford English Dictionary, which I know the noble and learned Lord likes, and the best meaning I could find for "relation" was
"any connection, correspondence or association that can be conceived as naturally existing between things".
It may be that I have chosen the wrong definition; there were so many definitions
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of "relation", and the noble and learned Lord may have a better one.
That did not help me, because it is perfectly easy to conceive of a situation where there is a primary trade dispute and where the action at the secondary employer, if we call him that for the moment, begins by being action which to the workers there is primary, but because they belong to the same union or perhaps because the employers link up in some way, becomes related; or a third group of workers joins in with their own dispute but, belonging to the same union or same group of workers, realise that there is a relationship between their separate wage claims.
At what point do these separate secondary actions become related? I am not asking the noble and learned Lord unreasonable questions, such as for a total definition that will solve all cases. What I am saying is that the words "in relation to a trade dispute" really are very unfair in terms of workers who take industrial action with a grievance of their own, which they know will be regarded as having some connection with another trade dispute, perhaps by way of lessening the supplies or the like in the other trade dispute. How far are they allowed to go before it is secondary action in relation to the other trade dispute?
In my submission there are more helpful words to use, and I wonder, without my suggesting any more, whether the noble and learned Lord would be prepared to think about this. It is not a point which was raised in Committee in quite the same way, but it is an extremely important matter because it is, after all, the very launching pad for the entire section. Nothing is more fundamental than finding the trade dispute in relation to which the secondary action is taken. I say that the phrase "in relation to" would obviously give rise to a lot of litigation and might perhaps be improved upon, so that not only unions but also employers would know where they stand. I beg to move.
Lord MACKAY of CLASHFERN: My Lords, I think I understand the noble Lord's question. I find difficulty in understanding what relationship it has to the amendment he has proposed. My understanding of the situation is that, in

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order to apply this section, one first of all has to have a trade dispute. We know what that is; at least we think we do. The noble Lord has already made reference to the definition of a trade dispute. Once one has a trade dispute the relationship that is constituted by secondary action is what is described here; in other words, one has secondary action in relation to a trade dispute when the relationship between the action and the trade dispute is as described, so the phrase "in relation to a trade dispute" in this clause is simply in order to set up what the clause is about. The clause describes the relationship which makes the action secondary in relation to that trade dispute.
I do not know that I can say anything more than that. Secondary action is a relationship between that action and a given trade dispute, and the relationship is what this describes. That is as much as I can do to assist. As I say, I do not think it has much to do with the amendment which is proposed. If that is the best argument the noble Lord has in support of his amendment, I must invite the House to reject it.
Lord WEDDERBURN of CHARLTON: My Lords, there are two points. The amendment proposed would, in fact, solve the problem because the test of purpose would then become the test of when the secondary action was to be put within the ring, as it were, of discussion. The noble and learned Lord has not solved our problem at all. He says the relationship is as described. There are two points of description in subsection (2) about the strike action or industrial action. One is that the employer is not a party to the trade dispute, and the second is that the industrial action is taken in relation to the trade dispute.
Therefore it is quite absurd, with great respect—I withdraw "absurd"; the noble and learned Lord is never absurd—or is at least curious to say that the definition of "in relation to" can be found in the clause when in fact it defines itself. We beg leave to withdraw this amendment, but we feel we have pointed out something which, if the Government do not change it on Third Reading, is highly likely to give rise to a great deal of litigation.
Amendment, by leave, withdrawn.
8.57 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 48:
Page 19, line 44, after ("and") insert ("either").
The noble Lord said: My Lords, we should like to take Amendment No. 48 with Amendment No. 49, or at least to speak to Amendment 49 because these two amendments are very closely related. What we are trying to do at this point is slightly to widen the gateway in Clause 17 (3) so that it provides for another form of secondary action to be protected. That secondary action is, of course, secondary action where, as we say in the amendment, the action is against some other person who is giving direct aid or assistance, whether by financial means or otherwise, to the employer who is a party to the dispute.
Once again, this amendment arises out of questions which we put on the Committee stage and answers which we got, where our attempts to open various gateways were turned down by the Government. When we look at the arguments which were used for the clause on the Committee stage—in particular, if we look at the arguments used by the noble Earl, Lord Gowrie, at column 712 of Hansard of 12th June—we see that he gave two different kinds of bases for the narrowing of secondary action. The first I would call the argument from Filaments Limited, and the second one was the more general argument of the unlimited extent of the existing definition of "furtherance" as a result of the House of Lords' decision in the McShane case.
What I would say in support of this amendment is that in neither of those two general cases are we suggesting a widening of the protection of the clause which is covered by either of his arguments. In regard to Filaments Limited the noble Earl argued that what the Government were seeking to do in this clause was to narrow the area of protection so as to protect what he called at that time the down-the-line employer, the innocent party, the employer whose trade was interrupted by an action by the union and who was in no way involved in the dispute. He was the innocent party. Earlier today noble Lords on the other side of the House championed the cause of the innocent party in the context of an

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industrial dispute. We are saying that the innocent party is not compromised by this particular amendment. Subsequently, as I have said, the noble Earl wanted to prevent the unlimited extent of the subjective notion of furtherance as a result of the House of Lords decision in McShane, and that of course is the basis for the appearance in the Bill of the notion of likelihood.
Once again we are not suggesting that this basis for narrowing the ambit of protection of the present legal position should be compromised in any way. We are saying something much more limited. We are saying something which should have thought was very much in the spirit of some of the remarks made by the noble and learned Lord the Lord Chancellor earlier this evening. We are saying that if secondary action is taken against a party who is not an innocent party, if he is an assisting employer, one who is in fact being directly instrumental in assisting the employer who is in primary dispute with the union, then there should be something in the clause to cover this. We are asking for a relatively small addition to the gateway.
To go back, to give a concrete example, to the case of Filaments Limited, what we say is that an employer would not be protected, and in fact those taking secondary action would be protected, if in the case of Filaments Limited there was another supplier who was providing other goods directly to the firm which was in the dispute with the primary strikers, as they might be giving them some alternative forms of supply, or exceptional credit conditions, or something of that kind. We would maintain that this is a quite small additional chink in the area of secondary action which does not affect the basis of the clause, and which only involves an interested employer. I beg to move.
9.2 p.m.
Lord MACKAY of CLASHFERN: My Lords, if I have understood correctly the examples that the noble Lord, Lord McCarthy, has given, the clause would already take account of that kind of support. The clause permits attempts to persuade employees of customers or suppliers to an employer in dispute to
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interrupt the supply of goods or services to or from the employer in dispute. So we have provided scope for secondary action against what is easily the most common way of providing aid to an employer in dispute. As I understood it, the examples were just examples of that.
So what would this amendment add? What other forms of aid would become legitimate targets for secondary action? It is difficult to say because, as I mentioned earlier, "direct aid or assistance" is not defined. I think it is fairly plain from the examples that the noble Lord gave that he is not able to give content to this particular amendment beyond that already covered by the clause. It seems to me, at any rate, that to add a vague phrase like this might well be to make the whole clause completely indefinite in its scope and effect. I would invite the House not to agree with it.
Lord McCARTHY: My Lords, I am sorry that the noble and learned Lord cannot see his way to accepting this modest amendment. I could take the view that if it is in the clause and it is declaratory of the existing position, then he might perhaps give the trade unionists a little reassurance by allowing it into his clause. But I shall not say that. I would rather say that one can give examples. It may be the case that he believes that some of the examples I gave would be covered by the clause; but there is also the case, which is quite clearly specified in the amendment, where we say, "whether by financial means or otherwise". It could be, for example, people who were giving additional credit facilities to an employer involved in a dispute, or there could be people who were forgoing insisting on certain contractual obligations to an employer involved in a dispute. They would be in fact assisting him quite materially, but it need not be a matter of direct supply. We can give examples, and we think that the Government should have accepted this amendment, but I do not intend to press it at this time of night. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 49 not moved.]
9.5 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 50:
Page 20, line 3, leave out ("likely") and insert ("genuinely intended").
The noble Lord said: My Lords, may I speak to Amendment No. 50 together with Amendment No. 51. We now approach the investigation of the areas of legality. We have already assigned to illegality all worker and worker disputes. There has now been assigned to illegality secondary action in relation to a trade dispute—which I still confess I do not understand, of uncertain ambit—all secondary disputes except those that get through the gateways to illegality. The interesting link between the earlier discussion this afternoon and what is now, perhaps, a rather more thorough investigation of these gateways, is the different ways in which they were presented at different points of the earlier debate. In the light of that, it is worth pressing rather carefully the amendments that we have put down, which fall really into three groups, Nos. 50 and 51 first.
The basic rights of workers to withdraw labour partially or in whole are removed on the basis that they must show what I will call Part A and Part B of the two gateways. There is, of course, the gateway of picketing in subsection (5), but I think that it would be common ground that in a sense subsection (5) is, as it were, the interlocking piece of the jigsaw between this clause and Section 15 of the 1974 Act.
Apart from the interlocking area of picketing, we have two gateways. In both of them there is a Part A and Part B. Amendments Nos. 50 and 51 relate to Part B. The workers must show that their purpose was to achieve certain things that disrupt supplies for the moment, and that what they did was likely to achieve that result.
It has already been suggested in your Lordships' House today that this, of course, goes back to what is now called the Denning test rather than the test elaborated and made clear in the McShane case in the House of Lords earlier this year. But the meaning of furtherance did not begin, in our contention, with the McShane case. The meaning of "furtherance" began with its first use in statute in 1875, and from then onwards, although
1134
there is no clear case stating it precisely in the McShane way, every single indication in the literature and case law is that "furtherance" meant what the House of Lords eventually decided it did mean in the McShane case; namely, action genuinely intended to assist, aid or further the dispute. Professor Goodhart, writing in his famous article on the legality of the General Strike in 1927, spoke of A striking against B on a question of wages, and he went on:
"Thereupon, C strikes against D because he believes that his act will be in furtherance of A's trade dispute against B".
Both A and C are protected under the definition in the Trades Disputes Act. Nobody suggested that Professor Good-hart was at all in error on that view; nobody would have done in 1927.
The problem arose only when the Court of Appeal in the late '70s began to adopt a new interpretation of the word "furtherance" which is not to be found anywhere in the previous literature. That is the so-called objective test; although, as I shall suggest shortly, it is objective in its interpretation of the words, it is more subjective in the extent of flexibility and creativity that it allows to the court; because in a series of decisions, beginning with Slater in 1978 and running through a number of decisions to Express Newspapers v. McShane in 1979, the Court of Appeal elaborated some various types of interpretation all based on an objective construction of the notion of furtherance.
The character of the uncertainty provoked by such an interpretation was illustrated of course in McShane itself, because Lord Justice Brandon and Lord Justice Lawton adopted the interpretation that the defendant, in order to show he was furthering a dispute, had to show that what he had done was reasonably capable—if I may conflate their test into that phrase, which is a fair summary—of furthering the dispute, and the Court of Appeal said on the evidence that that had not been done. Lord Wilberforce in. the House of Lords, adopting the same test solely among the Law Lords, took a completely different view of the evidence, and it is more likely that the courts will disagree when given the objective test in assessing the evidence than when given the subjective test.
The noble and learned Lord, Lord Denning, the Master of the Rolls, went

1135
further and demanded the test of the action not being too remote or, although he did not use the exact words, almost what is in the Bill; namely, that it be likely to achieve the purpose. And as Lord Scarman said in the Express case, tests of that sort pose what he called,
"a strange and embarrassing task for a judge",
because it requires the judge to assess what is likely to happen and, as he put it, make the courts into a back seat driver in trade disputes. The Government seem to be putting into their gateway therefore a test which, in an interlocutory case, will be very difficult for trade unionists to meet—with one exception to which I shall come shortly—and a test which is open-ended, to use Lord Wilberforce's phrase, so far as the assessment of affidavit evidence is concerned, and therefore one which plainly makes it very difficult to get through the eye of the needle of the gateway. Unless—and this is the exception—from the beginning those taking the secondary action decide, when they know something about the new law, "We had better make sure that it looks as though in interlocutory proceedings we are likely to disrupt these supplies, so let us not have any halfway measures of a work-to-rule, go-slow or one-day strike. In order to show that we are likely to disrupt and be lawful, we had better call the whole lot out from the very beginning."
It is curiously counter-productive of the Government to put in, on what I can only describe as rather doctrinaire grounds, what has come to be known as the Denning test in place of what has come to be known as the McShane test, although, as I have submitted, it is the test which existed from 1875 and 1906, especially with that curious counter-productive result. Most important of all, the likelihood of secondary action —we have no separate amendment on this point but I make the point again to build up the picture of the so-called gateways—has to be adjudged in regard to its likelihood of achievement together with corresponding action relating to other contracts of employment with the same employer. So you cannot add secondary action at employer A to secondary action at employer B to prove your likelihood in your affidavit; you have to prove the likelihood on what you are doing with the same employer. Therefore the tempta-
1136
tion to call out more workers than might otherwise be needed with the same employer again is greater than if you could add seconadry action at employer A to employer B who may well be associated employers.
But even if they are associated employers they cannot be added together under paragraph (b) of the gateways. So on paragraph (b) of the gateways, in our submission, if the Government really mean that they wish to leave it open in terms of the reality of interlocutory or interim interdict cases which the noble and learned Lord will know, as I do, involve a very hurried preparation of the evidence by the trade union side especially, where it is very difficult to get the evidence together, it will be very difficult for the trade unions to meet this requirement (b) of likelihood unless they know enough about the law to say, "Let's go further than we really need to". I cannot believe that that is the Government's intention. I therefore press noble Ministers to reconsider whether perhaps there is a case for putting in the traditional test to furtherance which is that represented by our amendment. I beg to move.
Lord MACKAY of CLASHFERN: My Lords, it is clear from the amendment itself and the explanation that the noble Lord has given of it, that he wishes to destroy what has been described as the objective test in paragraph (b) of this subsection (3). As my noble and learned friend the Lord Chancellor said earlier, this clause is designed to safeguard what are conceived by the Government to be legitimate actions on behalf of those who are engaged in trade disputes. We think that judged by that standard, an objective test of this sort is very reasonable indeed. We regard this particular test as a basic or integral part of the restrictions on secondary action imposed by the clause. It tells the courts, in effect, that they are to look beyond the purely subjective view of the defendant about his purpose in taking industrial action and consider the action objectively in the circumstances to determine whether it is likely that that purpose could have been realistically achieved if the action were successful.
To remove this test would be to return to the old law, as I think the noble Lord has made clear. The suggestion is that

1137
the courts would find this difficult to apply. I must say, with all respect to the remarks which have been quoted from the noble and learned Lord, Lord Scarman, that questions of likelihood and questions of probability are questions of fact which the courts have to consider every day in a whole variety of circumstances. I cannot believe that they will find this particular context all that much more difficult than the other contexts in which they have to consider the matter.
The important thing, perhaps, is that this law is to be applied before there is any question of a court action. The first person who must apply the test is the trade union official organising the secondary action. Is it really too much to ask that he should think about the purpose and the effects of the action he is contemplating? Why should an official be able to call secondary action without a clear view of what it will achieve? If he is in any doubt that the action is likely to achieve the purpose specified, then he should not embark on the secondary action at all. Too often at present—and this seems to be a view which is shared in various parts of the House and throughout the country—it seems that those taking secondary action do it too lightly. The secondary action is a primary rather than a secondary resort when in our view it should be a last resort. We think this test is one which as a matter of fact a well informed and responsible official will have no difficulty in applying. Of course, as I have said already, if it has to come to court—and I hope not many of these will—I hope the courts will find it possible to apply this test just as they do in similar circumstances in many other fields.
Interim proceedings, interlocutory proceedings always impose special difficulties on the court not only in this area but in many other areas as well. But I do not believe that this particular clause would make it any more difficult than it is in many other areas for the court to reach a just conclusion on the matter. I must say, however, that this is a fundamental point, and I would ask your Lordships to support us in asking you to reject this amendment.
Viscount BARRINGTON: My Lords, may I, as a very ignorant layman, ask a
1138
question which lawyers have to decide? Is it easier to say what is likely or to say what is genuinely intended? I would find it very difficult to say what is likely to happen in a lawn tennis match. I would also find it very difficult to say what is genuinely intended in any politician's speech. Are they not both equally difficult to do? Would there be any improvement, therefore, in putting in the words "genuinely intended" instead of "likely"?
Lord MACKAY of CLASHFERN: My Lords, with the leave of the House perhaps I may answer that point. It is not only a question of ease or difficulty in applying the test; it is the result of applying the test that it is important. If it is genuine intention, it is unlimited, because one can intend almost anything. If it is what is likely to be achieved, it is limited; and that is what we seek to achieve here.
On Question, amendment negatived.
[Amendment Nos. 50A to 51B not moved.]
9.21 p.m.
Lord WEDDERBURN of CFIARLTON Lord WEDDERBURN of CFIARLTON moved Amendments Nos. 52 and 53A:
Page 20, line 34, leave out from ("other") to ("at") in line 35 and insert ("whether or not in pursuance of a contract to which either of them is a party")
Page 20, line 40, at end insert ("unless that other person or any worker employed by him is engaged in work necessary for the performance of the contract referred to in paragraph (a) above.")
The noble Lord said: My Lords, I wish to move these amendments almost formally, the aim being that they should both be recorded. We are aware of the hour, and I wish to make two brief statements about the amendments. Amendment No. 52 addresses itself to a point about the gateways (3) and (4). Both require, because of the definition in subsection (6), a contract for the supply of goods or services between, and only between, the secondary employer and the employer in the trade dispute. We say that it is quite absurd that the protection of Section 13 should depend on what might almost be the fortuitous circumstance of a contract directly between those two. There may be a middleman involved, there may he other contacts.
With regard to Amendment No. 53A, the definition of direct interference in or disruption of that contract, as it is defined in subsection (6)(b), is such that the workers taking the secondary action can almost never directly disrupt it, because they nearly always disrupt it by refusing to give the goods to someone who is other than the primary employer—that is, a carrier or agents of a carrier; I have in mind, for instance, British Rail—and that is forbidden as direct prevention by the terms of subsection (6)(b), which defines references to direct disruption as,
"otherwise than by means of preventing … the supply of goods or services … to any other person".
I hope that it will be satisfactory if I move both the amendments in that form. My Lords, I beg to move.
Lord MACKAY of CLASHFERN: My Lords, as I see it the crux of this matter is that the secondary action will be lawful only if the employees in question are the employees of the employer whose business is being disrupted. In other words, employees can lawfully interfere directly with their own employers' business —with the employer in dispute —and in no other way. That seems to us to be a reasonable restriction, and it is the purpose of the clause to achieve that. Accordingly, I invite your Lordships to reject both amendments.
On Question, amendments negatived.
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 54:
Page 20, line 43, leave out from ("section") to end of line 45 and insert ("an employer who is a member of an employers' association which is a party to a trade dispute shall by virtue of his membership be regarded as a party to the dispute if he is represented in the dispute by the association, but not otherwise.").
The noble and learned Lord said: My Lords, this amendment seeks to make it clear that an employer who is a member of an employers' association shall not automatically become a party to a trade dispute, simply because his employers' association is in dispute. He is to be regarded as a party to the dispute only when he is represented by the association in the dispute, but not otherwise. This amendment was tabled in response to an amendment put down by my noble friend Lord Renton at the Committee stage.
1140
I then expressed the view that the provision that we had was clear, but on reconsideration I think that it might be made yet clearer; and that is the purpose of the amendment. I beg to move.
[Amendment No. 55 not moved.]
9.25 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 56:
Page 21, line 1, at beginning insert ("For the purposes of this section").
The noble Lord said: My Lords, this is our final attempt to do something about the issue of the primary strike. We all agree, all sides of the House, that subsection (3) of Section 13, if left alone, would affect the impact of Clause 17, and therefore it must be set aside for the purpose of Clause 17. That is the purpose of this amendment. We all agree that the Government have no intention of affecting the primary right to strike. What we disagree about is whether the clause as drafted, because of the total repeal of Section 13(3), will in fact have that effect. The Government have said that they could be wrong. The noble and learned Lord the Lord Chancellor said in the debate on 12th June, at column 687:
"Of course, it is possible that either of us may be wrong. I thought that I said as much in my original speech and, of course, I shall refer what the noble Lord has said to those who are better qualified than I to consider it, and then I shall consider their advice. But what I said and what I say now is that no question of principle is involved. He"—
that is, my noble friend and our side of the House—
"takes one view of the law; the Government's advisers take another".
So the position is really quite clear. We know what we wish to do: the difference between us is whether the Bill as now drafted in fact does it.
As I understand this issue, we are not concerned with the protection of direct or indirect breaches of contract, labour or commercial contracts. We would argue that they are still protected by Section 13(1) of the 1976 Act. We are in fact talking about what the noble and learned Lord the Lord Chancellor called, the last time we debated this matter, "the unidentified flying object"—the "floating kidney"

1141
of the noble Lord, Lord Wedderburn. We are talking of the tort of unlawful means, established where strikers break the contract of employment in a primary strike. We say this exists: they say it does not exist. What we are suggesting to the Government is that if they were to accept our amendment they would in fact be providing something which should satisfy everyone, because we would be setting aside the consequences of Section 13(3), "For the purposes of this section", but it would be standing there if they turned out to be wrong in their words (if that were conceivable) and it was required for the protection of primary strike action elsewhere. For the life of us we cannot see why, even at this late stage, the Government cannot accept this amendment. I beg to move.
The LORD CHANCELLOR: My Lords, when we had this interesting and rather rarefied discussion at Committee stage, the noble Lord, Lord Robbins, said that he did not understand what it was about. If neither of us could make the noble Lord, Lord Robbins, understand what it was about, I must say it must be very difficult indeed to understand what it is about. I think that in a notable letter to The Times the noble Lord, Lord Wedderburn, called it
"of the most mystifying sophistication".
The question is, who is mystified, and where is the sophistication'? I promised to look to see whether I was wrong, because I was unable to see the unidentified flying object, and I am told that I was not wrong, for once. So I am going to stick to my story that the unidentified flying object in this case does not exist.
The noble Lord, Lord McCarthy, says: If subsection (3) does not make any difference for or against, why not leave it in? The answer is, because if you leave in something which has no meaning at all, is not intended to have any meaning and has no purpose at all: Satan will find some mischief still for idle courts to do. It is a danger to navigation, so it had better come out.
If I may say so with respect to the noble Lord, Lord Wedderburn, and the noble Lord, Lord McCarthy—for whose diligence, courtesy, learning and almost rabbinical subtlety I have nothing but the profoundest respect—I can only
1142
remind them at this late hour of a certain short story by the late Monseigneur Ronald Knox in a book of short stories which was a great contribution to English literature; and I hope that the right reverend Prelates who have been sitting for so long will be diverted by this purely theological story. The story was called "A New Sin". It was about a man who had discovered a new sin just as the noble Lord, Lord Wedderburn, thinks that he has discovered a new tort. As Monseigneur Ronald Knox was a Roman Catholic, the issue was finally resolved by the Jesuits who said that if it was a sin it would already have been forbidden in Holy Scripture or by the traditions of the Church; and if it was not forbidden by Holy Scriptures and the Holy Church, it was not a sin. Therefore it was either not new or not a sin.
I reply in almost identical terms, mutatis mutandis, to the noble Lords that they are tilting at windmills in this case; but which is Don Quixote and which is Sancho Panza, I will not specify. At any rate they are tilting at windmills because either the Act which is referred to in subsection (3) of the relevant section of the Act of 1974 is validated by subsection (1) or (2) or it is not. If it is validated by subsection (1) or (2) there is no tort to be avoided; and therefore subsection (3) is totally unnecessary. If it is not validated by subsections (1) and (2) it cannot have anything to do with contract or with this clause. Either way, the amendment should be resisted. That is the best I can do. I do not see the noble Lord, Lord Robens, in his place, but I tried to make it intelligible this time. It is a difficult point and we are dealing with almost theological subtleties. That is why I introduced a theological story.
Lord KILMARNOCK: My Lords, since the noble and learned Lord the Lord Chancellor has chosen to raise Don Quixote and Sancho Panza, might I come briefly to their defence. As a layman, I studied with great interest the exchange between the noble and learned Lord and the noble Lord, Lord Wedderburn, on Committee, and I must say that I thought that they came out about even. I was not really convinced one way or the other. It seems to me that we are dealing with an extraordinarily important

1143
matter. After all, the primary right to strike is the bedrock of industrial relations in any civilised industrialised country. If there is any suggestion of a threat to it we have to take it extremely seriously. It seems to me that this amendment (which I think is cleverly and nicely worded) by simply limiting the amendment to the purpose of this section—and this section is entirely concerned with secondary action—has the effect of safeguarding the primary action which it seeks to safeguard. As the Government themselves have said on many occasions and have reiterated on a number of occasions this evening that they want to uphold the primary right to strike, I cannot see how there can be any reason why the amendment should be resisted.
Lord McCARTHY: My Lords, I sympathise with the noble Lord, Lord Kilmarnock. The noble and learned Lord the Lord Chancellor ranged all over the subject with great enjoyment and in several languages; but once again he gave no reason why the amendment should not be passed. I despair of them. We shall not divide but we shall not withdraw.
On Question, amendment negatived.
9.35 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 57:
Leave out Clause 17.
The noble Lord said: My Lords, we have, as the House will have seen, moved rapidly over our amendments but I do not think they are less than fundamental in that respect. We move in this amendment to leave out Clause 17, first because it puts in peril the primary right to strike. If the noble and learned Lord the Lord Chancellor, with the greatest respect and courtesy, will consult any of the labour law text books he will find out why. If he looks at page 608 of Davis and Fried-land's book of 1979 he will see them explain why the tort of unlawful means through a breach of contract needs the protection of Section (13) (3) (b) for primary strikes. It is all over all the labour law books. With the greatest respect, jokes about Spanish literature do not carry the day against that.
Secondly, it has excluded the legality of worker-v-worker disputes for the first time for 80 years. Thirdly, it creates an unreal distinction between secondary action and primary action. Fourthly, it is gateways for the legality of secondary action depending on direct action to disrupt the contract which it is almost impossible for the employees of the secondary employer to take. It leaves them with practically no legal secondary action at all.
Lastly, the legal mysteries which remain to be probed, like the relationship of secondary action through a trade dispute, will only create litigation or fear among workers. Indeed, that last point is part of the strategy. We wish to delete this clause on the grounds that the noble Lord, Lord Kaldor, gave at Second Reading: that this is all part of the Government's strategy to break wage resistance. I beg to move.
The Earl of GOWRIE: My Lords, we are indeed in the realms of theology. Far from having any connection that I can see with wage resistance, wage claims, wage settlements or wage bargaining, the effects of the amendment would be to remove from the Bill Clause 17 on secondary action. As the debate on the amendments in the name of the noble Lord, Lord Spens, fairly clearly demonstrated, the Government have been seeking with some difficulty—and with a great deal of conviction in spite of the difficulty—to restrict the almost infinite, almost cosmic, immunities which the last Government gave to trade unions in pursuance of actions in furtherance of trade disputes.
As I understand it, the effects of Lord Wedderburn's amendment would be to restore this cosmic position into the law. It is extremely hard to argue and perhaps the most sensible action that I can take is to suggest that your Lordships resist it.
9.39 p.m.
On Question, Whether the said amendment (No. 57) shall be agreed to?
Their Lordships divided: Contents, 36; Not-Contents, 105.

CONTENTS

Barnby, L.

Ellenborough, L.

Orr-Ewing, L.

Barrington, V.

Forester, L.

Renton, L.

Bathurst, E.

Gainford, L.

Robbins, L.

Bridgeman, V.

Gisborough, L.

Roberthall, L.

Brougham and Vaux, L.

Glenkinglas, L.

Rugby, L.

Camrose, V.

Halsbury, E. [Teller.]

Salisbury, M.

Cottesloe, L.

Hankey, L.

Saltoun, Ly.

Craigavon, V.

Harris of High Cross, L.

Seafleld, E.

Cromartie, E.

Ilchester, E.

Sharpies, B.

de Clifford, L.

Killearn, L.

Spens, L. [Teller.]

De Freyne, L.

Lindsey and Abingdon, E.

Stamp, L.

De L'Isle, V.

Massereene and Ferrard, V.

Strathcarron, L.

Donegall, M.

Monson, L.

Tweeddale, M.

Duncan-Sandys, L.

Mountgarret, V.

NOT-CONTENTS

Adeane, L.

Darling of Hillsborough, L.

Hampden, V.

Airey of Abingdon, B.

David, B.

Hampton, L.

Allerton, L.

Davidson, V.

Hanworth, V.

Alport, L.

Davies of Leek, L.

Harvey of Tasburgh, L.

Amherst, E.

Davies of Penrhys, L.

Hatch of Lusby, L.

Amherst of Hackney, L.

De La Warr, E.

Hatherton, L.

Amory, V.

Denham, L. [Teller.]

Hawke, L.

Ampthill, L.

Diamond, L.

Hayter, L.

Avebury, L.

Digby, L.

Henderson, L.

Avon, E.

Donaldson of Kingsbridge, L.

Henley, L.

Aylestone, L.

Dormer, L.

Hill of Luton, L.

Balerno, L.

Drumalbyn, L.

Hives, L.

Banks, L.

Dudley, E.

Holderness, L.

Bellwin, L.

Dundee, E.

Home of the Hirsel, L.

Belstead, L.

Effingham, E.

Hood, V.

Bessborough, E.

Elliot of Harwood, B.

Hooson, L.

Beswick, L.

Elwyn-Jones, L.

Hornsby-Smith, B.

Blease, L.

Ely, M.

Howie of Troon, L.

Blyton, L.

Energlyn, L.

Hughes, L.

Boothby, L.

Exeter, M.

Hunt, L.

Boston of Faversham, L.

Fairfax of Cameron, L.

Hunt of Fawley, L.

Bourne, L.

Faithfull, B.

Hylton-Foster, B.

Brabazon of Tara, L.

Falkland, V.

Jacques, L.

Bradford, Bp.

Ferrers, E.

Janner, L.

Broadbridge, L.

Ferrier, L.

Jeger, B.

Brockway, L.

Feversham, L.

Jellicoe, E.

Brooks of Tremorfa, L.

Fraser of Kilmorack, L.

Kaldor, L.

Bruce of Donington, L.

Fulton, L.

Kearton, L.

Burton of Coventry, B.

Gage, V.

Kemsley, V.

Buxton of Alsa, L.

Gaitskell, B.

Kilmany, L.

Byers, L.

Galpern, L.

Kilmarnock, L.

Camoys, L.

Gibson, L.

Kimberley, E.

Charteris of Amisfield, L.

Gibson-Watt, L.

Kinross, L.

Chelmer, L.

Gladwyn, L.

Lauderdale, E.

Chitnis, L.

Godber of Willington, L.

Leatherland, L.

Chorley, L.

Gordon-Walker, L.

Lee of Newton, L.

Clifford of Chudleigh, L.

Gore-Booth, L.

Leonard, L.

Clinton, L.

Goronwy-Roberts, L.

Lincoln, Bp.

Clwyd, L.

Gowrie, E.

Linlithgow, M.

Cockfield, L.

Gray, L.

Liverpool, E.

Collison, L.

Greenway, L.

Llewelyn-Davies of Hastoe, B.

Colwyn, L.

Greenwood of Rossendale, L.

Lloyd of Kilgerran, L.

Colyton, L.

Gridley, L.

Long, V.

Cork and Orrery, E.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Luke, L.

Croft, L.

Lyell, L.

Dacre, B.

Hale, L.

McAlpine of Moffat, L.

McCarthy, L.

Pender, L.

Strathclyde, L.

McFadzean, L.

Penrhyn, L.

Strathcona and Mount Royal, L.

Mackay of Clashfern, L.

Perth, E.

Strathmore and Kinghorne, E.

Mackie of Benshie, L.

Phillips, B.

Strathspey, L.

Macleod of Borve, B.

Plant, L.

Strauss, L.

McNair, L.

Ponsonby of Shulbrede, L.

Sudeley, L.

Mancroft, L.

Rathcreedan, L.

Swinfen, L.

Margadale, L.

Rawlinson of Ewell, L.

Swinton, E.

Marley, L.

Redesdale, L.

Tanlaw, L.

Masham of Ilton, B.

Redmayne, L.

Taylor of Gryfe, L.

Merrivale, L.

Remnant, L.

Taylor of Mansfield, L.

Middleton, L.

Richardson, L.

Teviot, L.

Milner of Leeds, L.

Ritchie-Calder, L.

Thorneycroft, L.

Milverton, L.

Rochdale, V.

Trefgarne, L.

Mishcon, L.

Rochester, Bp.

Trenchard, V.

Monk Bretton, L.

Rochester, L.

Trumpington, B.

Montagu of Beaulieu, L.

Romney, E.

Tryon, L.

Montgomery of Alamein, V.

Ross of Marnock, L.

Tweedsmuir, L.

Morris, L.

Robens of Woldingham, L.

Underhill, L.

Morris of Kenwood, L.

St. Aldwyn, E.

Vaux of Harrowden, L.

Mottistone, L.

Salisbury, Bp.

Vestey, L.

Mowbray and Stourton, L.

Sandford, L.

Vickers, B.

Murton of Lindisfarne, L.

Sandys, L. [Teller.]

Vivian, L.

Napier and Ettrick, L.

Scanlon, L.

Wallace of Coslany, L.

Netherthorpe, L.

Seear, B.

Ward of Witley, V.

Noel-Baker, L.

Segal, L.

Wedderburn of Charlton, L.

Norfolk, D.

Selkirk, E.

Wells-Pestell, L.

Northchurch, B.

Sempill, Ly.

Westbury, L.

Northfield, L.

Shackleton, L.

Whaddon, L.

Norwich, Bp.

Shannon, E.

White, B.

Nugent of Guildford, L.

Sidmouth, V.

Wigoder, L.

Nunburnholme, L.

Simon, V.

Windlesham, L.

Ogmore, L.

Skelmersdale, L.

Wolfenden, L.

O'Neill of the Maine, L.

Slim, V.

Worcester, Bp.

Onslow, E.

Soames, L. (L. President.)

Wynne-Jones, L.

Oram, L.

Stewart of Alvechurch, B.

Young, B.

Orkney, E.

Stewart of Fulham, L.

Peart, L.

Strabolgi, L.

On Question, amendment agreed to.

CONTENTS

Balogh, L.

Galpern, L.

Northfield, L.

Blease, L.

Hale, L.

Peart, L.

Boston of Faversham, L.

Hatch of Lusby, L.

Pitt of Hampstead, L.

Bowden, L.

Janner, L.

Ritchie-Calder, L.

Brockway, L.

Jeger, B.

Ross of Marnock, L.

Brooks of Tremorfa, L.

Kaldor, L.

Sefton of Garston, L.

Bruce of Donington, L.

Llewelyn-Davies of Hastoe, B. [Teller.]

Stewart of Alvechurch, B.

David, B. [Teller.]

Stewart of Fulham, L.

Diamond, L.

McCarthy, L.

Stone, L.

Donaldson of Kingsbridge, L.

McGregor of Durris, L.

Underhill, L.

Elwyn-Jones, L.

Milner of Leeds, L.

Wedderburn of Charlton, L.

Fulton, L.

Morris of Kenwood, L.

Wells-Pestell, L.

Gaitskell, B.

NOT-CONTENTS

Amherst of Hackney, L.

Gray, L.

Orkney, E.

Ampthill, L.

Greenway, L.

Oxford, Bp.

Balerno, L.

Hacking, L.

Pender, L.

Barrington, V.

Hailsham of Saint Marylebone, L. (L. Chancellor.)

Redesdale, L.

Bathurst, E.

Renton, L.

Belstead, L.

Hankey, L.

Roberthall, L.

Brabazon of Tara, L.

Hanworth, V.

Rochdale, V.

Broadbridge, L.

Hatherton, L.

Rochester, L.

Brookes, L.

Home of the Hirsel, L.

Rugby, L.

Buxton of Alsa, L.

Hooson, L.

Saltoun, Ly.

Chalfont, L.

Hornsby-Smith, B.

Sandys, L. [Teller.]

Chichester, Bp.

Hylton-Foster, B.

Seear, B.

Cork and Orrery, E.

Kemsley, V.

Selkirk, E.

Cottesloe, L.

Killearn, L.

Sempill, Ly.

Croft, L.

Kilmarnock, L.

Simon, V.

Cromartie, E.

Lauderdale, E.

Skelmersdale, L.

Dacre, B.

Liverpool, E.

Soames, L. (L. President.)

De La Warr, E.

Lloyd of Kilgerran, L.

Stamp, L.

De L'Isle, V.

Long, V.

Strathcona and Mount Royal, L.

Denham, L. [Teller.]

Lyell, L.

Sudeley, L.

Digby, L.

Mackay of Clashfern, L.

Swinfen, L.

Donegall, M.

Mancroft, L.

Swinton, E.

Drumalbyn, L.

Marley, L.

Torphichen, L.

Dundee, E.

Massereene and Ferrard, V.

Trefgarne, L.

Ellenborough, L.

Merrivale, L.

Trenchard, V.

Ely, M.

Monk Bretton, L.

Trumpington, B.

Fairfax of Cameron, L.

Morris, L.

Vaizey, L.

Faithfull, B.

Mottistone, L.

Vaux of Harroden, L.

Falkland, V.

Mountevans, L.

Vickers, B.

Ferrers, E.

Mowbray and Stourton, L.

Vivian, L.

Ferrier, L.

Murton of Lindisfarne, L.

Westbury, L.

Gainford, L.

Newall, L.

Windlesham, L.

Gainsborough, E.

Norwich, Bp.

Wolfenden, L.

Gisborough, L.

Nunburnholme, L.

Worcester, Bp.

Godber of Willington, L.

O'Neill of the Maine, L.

Young, B.

Gowrie, E.

Resolved in the negative, and amendment disagreed to accordingly.
[Amendments Nos. 58 and 59 not moved.]
Clause 18 [Acts to compel trade union membership]:
9.47 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 60:
Page 21, line 19, at beginning insert ("Subject to subsection (2A) below.").
The noble Lord said: My Lords, it falls to me to move Amendment No. 60. If I may, I will speak also to Amendment No. 61. The noble Earl will, I am sure, understand if I say that certain constraints which were upon me before now will allow me to develop one or two of the arguments, but I need not do so at great length on this amendment in relation to Clause 18.
It is an amendment which arises out of the difficulty of the word which caused my noble friend Lord McCarthy to move an amendment, which we were surprised was not accepted or in any way welcomed, on Clause 15 as it now is. That is the problem of compulsion of workers to become members of a particular trade union. Clause 13 related to an employer compelling workers to become members of a trade union. Clause 18, which is sometimes known as the SLADE clause, also includes, as a constituent part of the liability, industrial action which is carried out for the purpose of compelling workers to become members of a particular union, or one or two or more particular unions, with the exemptions as set out in the clause.
Perhaps one should think about this a little more than we did at Committee stage. When my noble friend and I read the proceedings of the Committee stage we felt that the clause had not been explored in any way properly. Again it was a clause that was introduced at a very late stage in the other place and which was not properly discussed there, through nobody's fault. Its description as the SLADE clause is very misleading, in that it is wider than any of the practices which were condemned in the Leggatt Report. Nothing which I say is meant to relate to its attachment to those practices. But it raises the question of the much wider ambit over which it hovers—that is, all those cases where workers say, "We are threatening industrial action
1148
because we think that the workers of the sub-contractor, or the workers who are supplying the goods on which we work, or with whom we have to work, should be union members as well."
The first problem is how any industrial action by them can compel the other workers to become members of a particular trade union, or one or more trade unions. It is rather a strange extension of the English language, to which the Government, through the noble and learned Lord on the Woolsack and other Ministers, have become very addicted, and quite properly so, in the course of this Bill. But it is a strange use of the word "compulsion"; the idea that if I strike against my employer I can compel the noble and learned Lord the Lord Advocate, who is the employee of another employer, to become a member of a trade union. Of course, what would be held in its interpretation would no doubt be that through my strike action, I am having industrial or economic pressure put employer to employer, such that the result is, at least indirectly, a compulsion by the other employer to his workers to be unionised.
If that is right, then it assumes that none of the workers at the second employer, the sub-contractor, desire to become trade unionists; that is to say, it is an implicit assumption of this clause, if compelling those workers to become members of a trade union means anything at all and if my construction is anywhere near the construction that a court would give it—it implies, and naturally implies because it began with the SLADE problem, that none of the workers in the second place of work want to be members of any trade union whatsoever.
It seemed to us that it was not very satisfactory to put a clause on the statute book where it could be used by a subcontracting employer—the second employer—in a situation where it might well be that some of his workers wished to become members of a trade union. He might have a very heavily divided workforce on the issue of unionisation and recognition. Let us suppose, for the sake of argument, that it is only a minority of his workers who want to become trade unionists and, of course, on the

1149
day that this Bill is, unhappily, made into an Act and comes into effect they will not have the advantage of the ACAS recognition procedure. We have said all along that the abolition of that procedure will create more difficulties in regard to stoppages. But not having that procedure and if there are not very many of them at all, we wondered what kind of tests could be applied to stop the bad employer making use of this clause—which it is not the Government's intention, we are sure, that he should use—to prevent the unionisation of his own workforce if there are a number of people who wish to be unionised.
There is one clear test in the existing legislation which could be used, and it is the one which we suggest should be considered, even at this late stage, in Amendment 61, for which Amendment 60 is of course a paving amendment. It is that no employer should be entitled to the benefit of this section—or indeed we say, "this section shall not apply" which is perhaps a better way to put it, for a specified period. The period is not, of course, a period on which we stand and for which we would go to the stake; we have chosen two years, but it may be that the Government think if there is any merit in this some other period is more reasonable. But for a specified period he has not offended the basic trade union rights sections of the 1978 Act. I believe we have correctly identified those in the two parts of subsection (2)(a) of the new clause, the action short of dismissal under Section 23(1)(a) or (b), and dismissal for inadmissible reasons of trade union activity or trade union membership under Section 58(1)(a) and (b), and also the interim relief provisions of Section 77 of the 1978 Act which are put in for completion and comprehensive coverage.
It seems to us quite reasonable that if an employer over a particular period—over some period of limitation—has shown that he is opposed to trade unionism in the form of being found by a tribunal or an appellate court to be in contravention of the basic trade union rights under the important legislation—the right not to be discriminated against, short of dismissal; the right not to be dismissed by reason of union membership or trade
1150
union activities in an independent trade union—then we see no reason why the section should apply to a sub-contractor who is in that sad state of lacking grace. It would seem reasonable as, as it were, a testing litmus for the application of the section, if the workers whom the first set of workers are attempting to compel, in this strange language, into union membership, include a group who have been wronged in relation to the basic rights of trade unionists under the 1978 Act as it now is, that the section for a period should not apply to that employer.
It may be that the Government have other objections than the period, but I would be hopeful that they could give us some indication that this was the kind of line which could reasonably be drawn around a clause which otherwise is much wider than anything to do with SLADE and covers all kinds of sub-contracting other than where—the line that is drawn is curious again—one of the workers works for the same employer, or by chance happens to work at the same place of work, because it is quite obvious that trade unionists would get one of the subcontractors' workers in to work at the same place of work. We think there should be a line drawn round this very wide clause and that Amendments Nos. 60 and 61 are a reasonable way of doing it. I beg to move.
9.56 p.m.
Lord MACKAY of CLASHFERN: My Lords, as the noble Lord has explained, this amendment is aimed at what may be termed, for short, the anti-union employer. I should say at the outset that the Government have no sympathy with employers who prevent their workers from joining trade unions if that is what the workers want to do. Nothing in this Bill is intended to encourage such attitudes among employers. We believe that all workers should be free to join trade unions if they choose to do so of their own free will. But we believe that they should be free from compulsion or coercion of any sort, whether from employers, trade unions or other workers.
Whatever is said about this clause, it is absolutely apparent that Clause 18 of this

1151
Bill applies only to an act done for the purpose of compelling workers to become members of a particular trade union or of one or two or more particular trade unions. So it aims at acts for the purposes of compulsion. If this clause was dealing with, or trying to encourage, employers who prevented their workers from joining trade unions if they wanted to do so, I would see the force of the amendment the noble Lord has proposed. But I cannot for the life of me see what place it has in a clause which is dealing with acts for the purpose of compulsion of workers. It looks to us as though what the noble Lord is trying to do is to inflict a double penalty on workers. They have a bad employer, by definition on the terms of the amendment, and they are going to have the full viciousness of the SLADE procedures put against them as well, when they the workers, have done nothing to deserve either of those things. This seems to us to be a pretty absurd amendment, if I may say so with all respect, and I would invite the House to reject it.
Lord WEDDERBURN of CHARLTON: My Lords, I withdrew the notion of absurdity from my description of the noble and learned Lord's reply to a previous clause. I am sorry that he should think this absurd because it really is not. In fact, with great respect, his description of the situation is absurd. The workers who wish to join the union have been penalised, and to their aid comes, whatever the word "compulsion" means, the industrial action from another place of work. So they are not doubly penalised but doubly aided. It is the non-unionists at the place of work caught by our amendment who, of course, would be penalised, in the sense that if there is any economic pressure or compulsion that can come from the industrial action under subsection (1), that, of course, would tend to push them into the union. But the workers who want to join the union get a double assistance, not a double penalty, out of our amendment.
Despite the Government's protestations that they do not wish to assist anti-union employers, it seems to us that where you have a sub-contractor in this clause he will find great profit and assistance in operating in a covert way—as some small employers still do, and the Government
1152
know this as well as we do—pressure against his workers organising in a trade union. And they are not always very easy to catch. Even if he is found to be in contravention of the basic rights of trade unionists not be be dismissed for union membership, he is still going to be able to have an injunction granted to him when workers at another place of work try to come to the aid of those who might be dismissed for trade union membership. That seems to us a strange and—I shall not say "absurd"—wholly wrong-headed approach to the problem, and it is not necessary to catch the SLADE problem to have a clause as wide as this. But I see that we have made no dent in the Government's thinking. It is difficult in the course of this Committee and Report stage to make any dent on them at all. The best thing that I can do is to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 61 not moved.]
10 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 62:
After Clause 18, insert the following new clause:
("Void Agreements and Unlawful Means
An act shall not be regarded as an unlawful act or as unlawful means for the purpose of establishing liability in tort by reason only that it is done in pursuance of or in connection with an agreement rendered void by the provisions of this Act.").
The noble Lord said: 1t falls to me to move the last two remaining major amendments and they concern matters which we did consider in Committee, but we make no apology for coming back to them in a different form on Report. I hesitate to say this in the presence of the noble and learned Lord on the Woolsack, but they do, I fear, both involve the tort of doing damage by unlawful means. I do not wish to debate with him whether the tort exists: I merely take as my premise that it does, and I know that he apparently disagrees, so we must agree to disagree.
My premise in this case is founded upon a particular series of decisions and precedents, such as Brecks v. Cattell in 1972 or perhaps, more importantly, the case of Daily Mirror Newspapers v. Gardner in 1968 in the second volume of the Queen's

1153
Bench at page 762. The Daily Mirror Newspapers v. Gardner case is relevant because it was the first clear case in which economic pressure put by way of an agreement which was only void, was found to be unlawful as a tort in respect of which an injunction could issue. It was a case in which the Newsagents' Federation gave instructions to their members to block the distribution of the Daily Mirror because there was a dispute about the payments which should be made to wholesalers and retailers. The allegation was made by Daily Mirror Newspapers that this was a restrictive practice agreement registerable under the Restrictive Practices Act 1956 and was therefore prima facie void, and the courts upheld that contention.
So, one had a situation where the Daily Mirror was suffering damage via an unlawful means, not itself a tort but through an agreement which was void. Somewhat extending the previous precedents the Court of Appeal held that that unlawful means was sufficient for the grant of an injunction under the law of tort. This amendment tries to put that doctrine outside the ambience of this Bill. Of course, it has in mind especially the very first amendment that we moved on this Report stage, because the one place in the Bill where one finds an express reference to provisions in agreements or agreements being void is, of course, in Clause 4(11). There may be other places in the Bill where the courts hold agreements to be void, but that possibility is one that I shall not canvass as it is not expressly referred to. However, Clause 4(11) does speak of provisions in agreements being void.
The Government will remember that it was a matter of great concern to us—and it is still a matter of great concern to us—that a large number of trade union arrangements might be held to include provisions which purport to limit the operations of Clause 4. Those are the vital words: any provision in an agreement which purports to limit the operation of the clause is void without exception. That could include, as we suggested today, possibly parts of the Trades Union Congress so-called Bridlington Disputes, Principles and Procedures; possibly parts of the Trades Union Congress other machineries, including the Independent Review Committee procedures; possibly the model rule which the unions affiliated to the Trades
1154
Union Congress have in their rule books to effectuate immediately, by given notice, expulsion of a member who the disputes committee of the TUC says should not have been recruited by that union; and very likely, going further down the list, certain rules within individual trade union rule books, including perhaps the clauses relating to the expulsion or admission of members and appeals on those questions.
I trust that the noble and learned Lord, who I suspect will reply to this amendment too, will not say that it is quite impossible for any such provision in any of those agreements ever to fall foul of Clause 4(11), because it would be particularly rash for a Scottish lawyer to do so. English lawyers are notoriously rather more rash than Scottish lawyers; and I cannot believe that the noble and learned Lord will say that there could not possibly be a trade union rule, a trade union agreement or a part of a TUC procedure, or any of those things, which could possibly fall foul of Clause 4(11).
If that is so, then we say that the remedy for that should be within the ambit of Clause 4 itself; that is to say, without going through them, the compensation provisions of Clauses 4 and 5. We take great comfort from the fact that we believe the Government must accept this approach, for a very good and special reason which we had not appreciated in the clause which they added in Committee. That has now become Clause 2. In Clause 2 the employer is under an obligation to provide on his premises certain facilities for ballots at the request of the trade union, and certain remedies are provided by complaint to the industrial tribunal within Clause 2. But when we come to the bottom of Clause 2 in subsection (8) we find it expressly provided that:
"The remedy of a trade union for a failure to comply with a request made in accordance with subsection (1) above shall be by way of a complaint under this section and not otherwise".
That, of course, is put in for a very good reason; it is put in to stop the trade union being able to allege that the failure by the employer to observe his obligations under Clause 2 is some form of unlawful means in respect of which they can claim an injunction or some other kind of remedy.
Therefore, for the employers the Government, in our view quite rightly, say:
"These are your obligations; these are the remedies and there is no other remedy outside the clause". That is for the employers in Clause 2, but we do not find that anywhere else in the Bill. This amendment is asking the Government in regard to void agreements, "Will you do for the trade union and its rule books and its possible contraventions of Clause 4(11) what you have done for the employers in Clause 2(8)? If you will not, then you can only expect the trade unions on this point, as on so many others, to regard you as being something other than evenhanded". I beg to move.
Lord MACKAY of CLASHFERN: My Lords, as I understand the noble Lord, he is putting forward this amendment to prevent industrial action in pursuance of an agreement rendered void by the Bill from being unlawful. The only agreements made void by the Bill are those which purport to exclude or limit the operation of Clauses 4 or 5, which deal with unreasonable exclusion or expulsion from a trade union by virtue of Clause 4(11) of the Bill, as he has said. Indeed, as is clear from Clause 4(11), the range of possible agreements rendered void by that clause is very limited. In our view the result is that the range of possible industrial action to which this amendment refers is very limited indeed.
We cannot think that it is right in principle that the weapon of industrial action should be available to try to prevent an individual from being able to exercise a statutory right to seek a remedy against unreasonable behaviour. The noble Lord, Lord Wedderburn, has relied for his argument on the case of the Daily Mirror v. Gardner. I will not detain your Lordships by seeking to examine that case in detail but I think there are some grounds for thinking that it is not entirely satisfactory as a case of general authority. Indeed, I think the noble Lord himself has indicated some degree of doubt in this matter because in his chapter in Clerk and Lindsell on Torts he cites with approval a convincing criticism of the aspect of the decision on which he is now relying.
The situation with regard to Clause 2(8) is quite different. There is nothing uneven about our handling of the trade unions.
1156
We are trying to be as fair as we possibly can, and the provision in Clause 2(8) is a provision designed to provide the remedy for the breach of the clause which is there given. The breach of the statutory obligation provided by the clause has to have some remedy, and we have provided a remedy.
The situation that is dealt with by this amendment is, in our view, quite different, and so far as I can see what is sought to be done here is to give some kind of remedy in respect of industrial action in pursuance of void agreements. Even if we were wrong and this is a completely genuine problem, we would think it not correct to give protection to industrial action to prevent individuals obtaining redress against unreasonable expulsion or exclusion from a union; so, even if we were wrong in principle on the argument which I put forward first, I would suggest to your Lordships that there is no merit in this amendment.
Lord WEDDERBURN of CHARLTON: My Lords, I suppose that does require some response. Firstly, in regard to the case of the Daily Mirror v. Gardner, I would suggest, with the greatest respect, that the noble and learned Lord must check his footnotes by going to the cases. The criticism of the Gardner case is in Torquay Hotels and Cousins by the noble and learned Lord, Lord Denning, on a completely different point—the question of whether there is difference between direct and indirect procurement for breach of contract, on which he corrected himself in the second case. There has never been, so far as I know, any dictum anywhere suggesting that the point on which I cited the Gardner case—the void contract being unlawful means—has ever been departed from, and, indeed, it follows in cases like Brecks v. Cattell in 1972 and subsequent cases. So let us depart from argument about the precedent.
The Government's response to this makes me say that I shall move Amendment No. 63 only formally, because it is quite clear that the Government are not going to move on this. But they really must understand how unreasonable they are. We are coming to the end of the Report stage, and this is a serious matter. Unless the noble and learned Lord gives me an indication that he is going to give a

1157
different type of answer on Amendment No. 63—he nods his head in the wrong way, saying "No"—I will deal now with the general point in the light of what he has just said, because obviously his reply is going to be along the same lines.
The Government must understand how unreasonable is their situation. First, they are giving to employers what they will not give to trade unions. They are giving in the clause, where employers might worry about extra remedies, a limitation of the remedies to the clause itself. They are not doing that for trade unions, either in regard to void agreements or, when I come to move formally the next clause, unlawful means by a contravention in some other way of one of the Bill's provisions. Then they say, "Of course, in some situations it would be very rare that the problem arises. There is only a limited area where it could possibly arise in regard to void agreements under Clause 4(11). But we cannot give you any desirable answer on that, and even if we were wrong and it was not rare we still could not give it to you, because then it would be improper for anyone to use industrial pressure in order to put pressure on to effectuate a void agreement." If that is what the Government mean—and it is what the noble and learned Lord said—that industrial action in order to further an agreement which is void cannot be lawful, then why do they not put it in the Bill?
It is a constant mystery to me why, in our legislation, we allow what the Lord Chancellor cannot recognise as anything other than a floating kidney because we do not put it in the Bill. The reason the noble and learned Lord on the Woolsack has difficulty is that the draftsmen will not do the job for him. What they do is set out certain obligations, they then say there are these remedies, 1, 2, 3, and 4; but then a plaintiff goes into court and says, "I am not pursuing remedies 1, 2, 3 and 4. I am saying it is unlawful means and it has done me damage and I want an injunction". They do it every day of the week now, in patent cases especially. It is into labour law now.
If the Government mean that a trade union engaging in otherwise lawful industrial action—which is, of course, necessary for the argument—becomes the actor in an unlawful scene of industrial
1158
action because, and only because, it is pursuing, or trying to put into effect, a void agreement, or because it is contravening the Act in some way of whatever kind where no remedy in tort is given, why cannot they put it in the Bill?
In Clause 2 it tells the employer, "Don't worry", but in Clause 4 it says, "Certain agreements may be void". There may be a case where a union says, "Look, these are our rules. We cannot admit this man". I do not want to go back over old territory but the Government are in a hopeless mess with their trade union provisions in this Bill, because as the Bill stands any member of the union can go to the High Court and say, "You cannot admit the noble and learned Lord the Lord Advocate. Subject to the Race Relations Act, or any such statute, we do not admit Scotsmen. So in the High Court we can get an injunction to stop you admitting him". Of course in the tribunal he can get compensation against you because it would be an unreasonable refusal. It is quite rightly unreasonable on the ground that he is Scottish. More than that now it may be that the agreement in regard to the union rules which purport to set out a procedure in regard to that admission could be void. And so the noble and learned Lord the Lord Advocate could then go and get an injunction himself because the union would be acting via unlawful means.
You would have an utterly absurd situation arising when one member can get an injunction to stop the union breaking its rules, and because the applicant, or expelled member in another situation, can find some provision which is void in the rules he gets an injunction against the union in precisely the same situation. I do not want to press that because that is old territory, just to remind the Government just how absurd this Bill is. But I stress that it is not even-handed. In speaking to No. 62, and before moving formally No. 63, I wish it to be put on record as the view of this side of your Lordships' House that this is a Bill which is strewn with hidden minefields of illegality of this kind. It is particularly unfair in this Bill because this is a Bill which in fact sets out almost throughout, except for the ante-natal provision that the noble Earl always has in mind, and quite rightly, and except for the cash for ballots

1159
which the noble and learned Lord may be thinking of, to cut down trade union rights. Throughout the rest of the clauses there are hidden unlawful means. We shall not actually withdraw this amendment but leave it on the Marshalled List without withdrawing it. I beg to move.
On Question, amendment negatived.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 63:
Insert the following new clause:
("Liabilities and Unlawful Means
—(1) Subject to subsection (2) below, the doing of an act shall not be regarded as the doing of an unlawful act or as the use of unlawful means for the purpose of establishing liability in tort by reason only that it contravenes a provision of this Act unless it is rendered actionable in tort by reason of the provisions of this Act.
(2) Nothing in this section shall affect liability in tort which arises by reason of contempt of court.").
The noble Lord said: My Lords, I beg to move Amendment No. 63 formally, so that it be recorded in the Official Report.
On Question, amendment negatived.
Schedule 2 [Repeals]:
10.20 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 64:
Page 28, leave out lines 23 to 25.
The noble Lord said: My Lords, we felt, coming to the schedules, that this House would not be doing a proper job on the Bill unless the Government were made to do what I believe is done in lines 23 to 25 of the last schedule. Indeed, it is rather odd to find this tucked away in the last schedule, and if I am wrong about this, I am sure the noble and learned Lord will correct me with the aid of his advisors. My understanding is that leaving out lines 23 to 25 on page 28 —getting rid, in fact, of paragraph (b) of Section 25(1) of the 1978 Act—reverses the burden of proof in actions short of dismissal cases. We do not see why that should be done in all such cases. It is a matter where, unless I have it wrong, we think the Government should at least put on record their justification for that change.
Lord MACKAY of CLASHFERN:
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My Lords, I believe I am right in saying that the striking out of the paragraph which this amendment proposes would have no effect whatsoever, because in effect this provision is in twice, and if the noble Lord looks at Clause 15(3) he will see that subsection 1(b) of Section 25 of the 1978 Act shall cease to have effect, and it is repeated in the repeals Schedule only for convenience, so that users of the statute may easily find the provision which is repealed.
Lord WEDDERBURN of CHARLTON: Is the noble and learned Lord referring to subsection 5(a), my Lords?
Lord MACKAY of CLASHFERN: My Lords, that is my understanding of the effect of the amendment.
Lord WEDDERBURN of CHARLTON: My Lords, my printing of page 17 of the Bill—if the noble and learned Lord has the same document as I have—relates to subsections (3), (4) and (5)(a). If that is a misprint, then it is indeed dealt with twice, but the schedule deals with Section 25(1)(b) and Clause 15(3) in my copy deals with Section 23(5)(a).
Lord MACKAY of CLASHFERN: I referred to Section 25(1)(b).
Lord WEDDERBURN of CHARLTON: I apologise to the noble and learned Lord, my Lords. My complaint, then, about it being only in the schedule is wrong. Nevertheless, what is the justification for reversing the burden of proof?
Lord MACKAY of CLASHFERN: My Lords, it is perhaps apparent that the noble Lord had not read Clause 15(3) sufficiently far; there is a paragraph (a) in it right enough, but if he reads on he finds paragraph (b).
Lord WEDDERBURN of CHARLTON: That is so, my Lords.
Lord MACKAY of CLASHFERN: My Lords, the situation, so far as we are concerned, is that Section 25(1)(b) of the 1978 Act is a rather obscure provision, even in the context in which it was enacted. It says that employers, when defending a complaint that they have contravened an employee's rights under

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Section 23, shall show their purpose in taking the action was not to prevent or deter a person from being a member of an independent union or taking part in its activities at any appropriate time, nor to compel a person to belong to a union. In fact, Section 23 allows the employer to have these proscribed purposes in a closed shop situation. Section 23(4) limits rights to take part in activities on employers' premises conferred by Section 23(1)(b) to activities on behalf of a union specified in the closed shop agreement, not any other. And so an employer is allowed to take action under the current Section 23—in respect of making his premises available where there is a closed shop—to prevent or deter activities on behalf of a rival union. Also under paragraph (b), the employer is allowed to take action short of dismissal for the purpose of compelling someone who does not have religious objections to membership of any union whatsoever. In short, Section 25(1)(b) does not make sense now. Clause 15 of the Bill completely reconstructs Section 23 of the 1978 Act and Section 25(1)(b) would still not make sense in that reconstruction, and accordingly it seems right that it should be removed.
Lord WEDDERBURN of CHARLTON: I accept the noble and learned Lord's assurance—
The LORD CHANCELLOR: By leave.
Lord WEDDERBURN of CHARLTON: My Lords, I had not appreciated that I needed the leave of the House to speak again, but if the noble and learned Lord Chancellor says I need it, then I ask for it, but I did not think I needed it in replying since it was my amendment.
I accept the rebuke of the noble and learned Lord, Lord Mackay of Clashfern, about the place where I should have found the provision in the Bill. Nevertheless, I do not understand the Government's explanation about the burden of proof at all, because Section 23(1)(a) and (b) in relation to an employer's obligation not to take action short of dismissal to prevent someone acting as or being a member of an independent trade union are not affected by the Bill. One would have thought that the burden of proof should remain the same upon him despite
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any other changes in this Bill. I still am rather mystified, but I have much less locus standi now, since I perhaps chose the wrong place to raise it. I do not understand the Government's answer, and I wonder whether, when they read Hansard and compare it with what is left of Section 23, they will either. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The EARL of GOWRIE The EARL of GOWRIE moved Amendment No. 65:
Line 2, at end insert ("for the use of employers' premises in connection with ballots,")
The noble Earl said: My Lords, the ship is in sight of shore, if not in harbour. The effect of this amendment is to reflect in the Long Title of the Bill the incorporation of the new Clause 2 included in the Bill during the Committee stage. I beg to move.
On Question, amendment agreed to.
DEER BILL
GROUND GAME BILL
HIGHWAYS (ROAD HUMPS) BILL

MARRIED WOMEN'S POLICIES OF ASSURANCE (SCOTLAND) (AMENDMENT) BILL
Brought from the Commons, read 1ª; and to be printed.
PIER AND HARBOUR ORDER (BRIGHTON WEST PIER) CONFIRMATION BILL
Reported from the Unopposed Bill Committee without amendment and recommitted to a Committee of the Whole House.