HL Deb 08 July 1980 vol 411 cc1119-62

Report stage resumed on Clause 17.

[Amendment No. 45B not moved.]

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, "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". 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 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 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 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. 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.


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 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 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 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.


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 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.


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 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 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.


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 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.


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 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 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 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- 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.


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 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.


My Lords, may I, as a very ignorant layman, ask a 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"?


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 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.


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 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. 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 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" 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.


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 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.


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 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.


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 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.

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.
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.

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.
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 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 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 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 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.


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 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.


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 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 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 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 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.


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. 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.


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 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 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 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 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 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.


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.


Is the noble and learned Lord referring to subsection 5(a), my Lords?


My Lords, that is my understanding of the effect of the amendment.


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).


I referred to Section 25(1)(b).


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?


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).


That is so, my Lords.


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 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.


I accept the noble and learned Lord's assurance—


By leave.


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 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 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.