§ 3.2 p.m.
§ Read 3a, with the amendments.1540
§ Clause 16 [Picketing]
Lord RENTON moved Amendment No. 1:
Page 20, line 38, leave out ("in section 13 of the 1974 Act").
§ The noble Lord said: My Lords, this is the first of a group of drafting amendments standing in my name and I suggest they all be discussed together. I have received from my noble and learned friend the Lord Chancellor a characteristically courteous note explaining that he has a statutory duty to perform this afternoon, so that the reply to my amendments will come from the noble and learned Lord the Lord Advocate. But as the Lord Chancellor is a good rifleman, I suggest to him that if he were able to stay and hear what I have to say, he might think that I had scored five bullseyes, four inners and failed to reload for the tenth round, as may be seen as I develop my theme.
§ None of these amendments is designed to alter the policy underlying the Bill or its legal effect; they are designed to simplify the drafting of Clause 17, which has caused great problems of understanding in both Houses and among both branches of the legal profession, and among others too. The misunderstanding has been caused mainly, although not entirely, because the drafting of Clause 17 relates back to and hinges upon Section 13 of the 1974 Act, and that itself was amended by Section 3(2) of the 1976 Act.
§ The ultimate users of Clause 17 will be trade union officials and managers of companies large and small, and it would be of great service to them as well as to lawyers, including judges, if it were not only made more easily understandable but if the essentials of the law relating to secondary action were gathered together in one clause, and that is what I have attempted to do.
§ It has been largely a scissors and paste job, but to the minor extent that redrafting was necessary, I have retained the present wording so far as possible, and when I say the present wording, I mean the present wording not only of Clause 17 but of the 1974 and 1976 Acts. The important thing it seemed to me was to get rid of subsection (1) of Section 13 of the 1974 Act which has, anyway, largely ceased to represent Government policy; and if that is so, it does not seem 1541 wise to keep it. It can only be confusing to do so. By common consent, subsections (2) and (4) of Section 13 of the 1974 Act are to be retained, so they would become subsections (9) and (10) of Clause 17 if my Amendment No. 2 were accepted.
§ However, Section 13 of the 1974 Act is also mentioned in two other clauses in the Bill—Clauses 16(2) and 18(1)—so I have had to amend them by omitting the references in them to Section 13. That has been done by its simple omission from Clause 16(2), as will be seen by my Amendment No. 1, which I am now moving; and by slightly redrafting the first part of Clause 18(1), and the result will be seen in my Amendment No. 3.
§ In a new subsection (8) of Clause 17, in my Amendment No. 2, I have inserted the existing definition of "associated employer" so that it can be seen in Clause 17, as it would be redrafted, without having to turn to Section 30(5) of the 1974 Act. I have not proposed the repeal of that subsection because it might be needed for other purposes, although a scrutiny of the 1974 Act did not enable me to see why it should be retained. However, if it is not necessary to retain it, it could easily be deleted from the 1974 Act in the repealing schedule of this Bill in another place where, as many of us in your Lordships' House know from experience, purely drafting amendments consequential to Lords amendments are in order and are frequently made. But if it is not deleted, no harm will have been done by a brief repetition of the kind which would occur because brief repetition is sometimes done for the benefit of ultimate users.
§ I confess to an omission from my drafting, and this accounts for my reference to my failing to reload for the tenth round, and I am grateful to my noble friend Lord Gowrie for pointing it out to me. In my zeal to deal with Clause 17 as drafted and to get its secondary action provisions right, I failed to observe a hidden minefield, although not the type of hidden minefield to which the noble Lord, Lord Wedderburn of Charlton, has from time to time referred during the earlier stages of the Bill. I failed to ensure that immunity was preserved against an employer who is a party to a dispute in relation to primary action. I am sorry 1542 about this, my Lords, but I suggest that the omission need not be fatal, since, again, it is a drafting consequence of the repeal of Section 13(1) of the 1974 Act, and so it could easily be put right in another place by means of a consequential amendment to a Lords amendment.
§ Although I am not without a great deal of experience of legislation over the past 35 years in various capacities, I am not a member of what the Lord Chancellor a little while ago referred to as "the sacred priesthood" of parliamentary draftsmen, whom we all admire but do not envy. So I cannot claim that my amendments are perfect. I certainly do not do so, but I suggest that they are helpful. They are a genuine attempt to help the ultimate users, whose interests we should constantly have in mind. Therefore, I trust that the Government will accept these amendments in the spirit in which they are put forward and will agree to table in another place any necessary corrections or consequential amendments. Finally, I must stress that this is the only hope of overcoming the drafting difficulties which have already been so widely experienced by so many people in attempting to understand Clause 17. I beg to move.
§ 3.12 p.m.
§ The Lord ADVOCATE (Lord Mackay of Clashfern)
My Lords, it would be convenient if I were to speak to the later amendments besides dealing with Amendment No. 1, as my noble friend Lord Renton has done. The Government are extremely grateful to my noble friend Lord Renton for taking such trouble with the consideration of the drafting of these provisions. The drafting has not been at all easy. Perhaps I should take the opportunity to clarify a point mentioned by my noble friend Lord Gowrie in relation to the drafting when this clause was considered on Report. He said, as reported at column 1081 of the Official Report of 8th July:I would just say in the draftsmen's defence that after six months' hard work no one has been able to suggest a better way…".That was rather taken up as suggesting that the draftsman had six months in which to prepare his draft, but of course what my noble friend was referring to was the period of six months that had elapsed since the McShane judgment, and he was pointing out that up until that time—that 1543 was before my noble friend Lord Renton came forward with his proposals—no one had been able to put forward a better draft to embody the policy proposals, in particular those in Clause 17.
Our view of the matter is that the policy requirements are such that the drafting is necessarily somewhat complicated. During the debate on Report some reference was made to a letter about this matter, written by Sir John Stebbings in his private capacity, although he was then President of the Law Society. It might be of help in this connection if I quote a reply sent to Sir John on 4th July by my right honourable and learned friend the Attorney-General. A copy of the letter has gone to the chairman of the Bar Council. I quote part of that letter:I am aware that the clause"—he is referring to Clause 17—is very complex, but that is an unavoidable result of giving clear expression to the policy, which cannot be done in simple terms. I have been closely in touch with the draftsman of the clause and you should know that we have tried to simplify it; but in each case it has become clear that there would be side effects which are inconsistent with the intent; and this has led us to conclude that the work of the draftsman cannot be improved upon within the limits set by the policy.Having said this, I accept that the clause will not yield a clear and predictable conclusion on every set of facts. The circumstances which arise in trade disputes are many and varied and there are bound to be the odd marginal cases where it will not be obvious whether or not there is immunity. There may be litigation and appeals on difficult points, but that is not a justifiable criticism of the clause; it will be the result of the interaction of a necessarily complex clause with complex facts. I am satisfied that there is no way of avoiding this within the terms of the policy".My noble friend Lord Renton has attacked this difficult problem with his usual care and as a result has presented these amendments, and I only wish that we could feel that they make the clause easier to understand, but I am sorry to say that, as a result of careful consideration of the draft, we have reached a contrary conclusion. I say that in no spirit of criticism. I am very well aware of the difficulties, and I wish briefly to say a few words about the difficulties which seem to us to persist in the amendments of my noble friend.
The starting point of our drafting in relation to both Clause 17 and the other 1544 clauses in this Part of the Bill is Section 13 of the 1974 Act, as amended. The approach of my noble friend Lord Renton is to try to dispense with that and to put into this clause what he takes as the substance of that provision. But the difficulty about that is that one does not have an introduction to these provisions which Section 13 gives. I should like to ask your Lordships to look with me briefly at my noble friend's proposal in relation to Clause 17—that is, Amendment No. 2. Without any reference to Section 13, the proposed amendment refers to,An act done by a person in contemplation or furtherance of a trade dispute"—as—actionable in tort only when it consists of secondary action as set out in subsection (2) below and occurs in any case where—(a) the contract concerned is not a contract of employment".Up to that point in the provision there is no reference to any contract concerned, and therefore one would expect to look forward to subsection (2) to discover what that contract concerned is. However subsection (2) of the clause refers to a contract which is a contract of employment. Accordingly, if one does not have the benefit of starting with Section 13, it is extremely difficult to see how there can be a contract concerned which is not a contract of employment in the context of subsection (2). So if one removes Section 13 from the introduction to this proposal, there is very little left in the way of a signpost pointing to the contract which is in question.
The next point that arises on my noble friend's drafting is that it is not clear whether the clause is concerned with the torts of interference with contracts, as in Section 13(1), or whether it goes wider to cover other torts, such as nuisance, trespass, or even defamation, for which, of course, there has never been any immunity, either under the 1906 Act or under Section 13 of the 1974 Act. If one reads the amendments that are proposed by my noble friend, I think it is at least eminently arguable that any act, whether actionable in relation to inducing breach of contract or otherwise, is covered by the clause; and this, I think contrary to the intention which my noble friend has in relation to this clause, would open up a very large area of immunity which did not exist before. On the other hand, I think 1545 it is also eminently arguable that the effect of my noble friend's amendment would be to leave very doubtful whether there is immunity for any tort committed in contemplation or furtherance of a trade dispute, and this is a matter of very considerable difference in policy from that which is attempted to be followed.
As I understood my noble friend, he accepted that there was some difficulty on this score and suggested that it could be corrected by a clause which would have the effect of preventing the employer in dispute from suing. I doubt very much whether that of itself would be sufficient because, of course, the important question is whether action lies on it, not who it is that can take that action. So if the act is actionable at all, it does not have the benefit of immunity. It looks as though the amendments which my noble friend proposes would have the effect, once Section 13(1) has gone, of restoring the common law position, and it is for that reason, of course, that some parts of Section 13 are reinstated.
The third difficulty is one which, in a sense, is evident from the fact that my noble friend has tabled amendments to Clauses 16 and 18. The repeal of Section 13 of the 1974 Act would affect more than just Clause 17 of the Bill. This is because Clause 17 and Clause 18, and to a lesser extent Clause 16, all take Section 13 as their starting point and have a common structure based on it. For similar reasons, it would also be necessary to amend Section 17 of the 1974 Act, which is not dealt with in my noble friend's amendment. That is the section restricting the right of the court to grant an interim order in such a dispute. In short, if Section 13 were repealed all these provisions would need to be substantially redrafted.
Perhaps I should add that we also believe (but I need not go into this in detail) that the amendments in relation to Clauses 16 and 18 are defective in themselves. Perhaps I could content myself with one example. Let me take the example of picketing. My noble friend's amendment would remove from Clause 16 of the Bill the reference to Section 13. This would leave the word "nothing" completely unqualified. The effect of this could be the removal of the immunity for trade unions themselves under Section 14 of the 1974 Act in cases 1546 of unlawful picketing. This would of course go well beyond the policy set out in the Bill—the policy which I understand my noble friend is seeking to give effect to by his redrafting.
I mention these matters, not in any spirit of carping criticism (because, as I said at the beginning, I am well aware of the difficulties of satisfactory drafting against the background of this policy) but because it is with great regret that I have to say that, in our view, these amendments do not in fact improve the drafting. While grateful to my noble friend for the care that he has taken with them, I would have to invite him to be good enough to withdraw these amendments.
§ Lord GISBOROUGH
My Lords, I should like very briefly to support my noble friend on this amendment, while accepting what the Government have said. The legal difficulty of Clause 17 is recognised, but the main thing about a Bill is that it should be simple, or reasonably simple, so that people can understand it. I wonder whether the Government could not agree to look at this again, and perhaps leave Section 13 in as it stands but duplicate to some extent the wording of it, so that when Section 17 is read it can be better understood.
§ Lord RENTON
My Lords, I fear that the opportunity to do what my noble friend Lord Gisborough has just suggested has passed. We are now making Lords' amendments to the Bill, which will go back to the Commons; and in the Commons they can only suggest amendments which are consequential to those which we have made, or which would negative them.
I am grateful to my noble and learned friend for his very abstruse reply. I hope he will forgive me if I say that, so far as I was able to follow what he was saying, I do not accept it all. He points out that in the Bill as drafted the starting point for the drafting of Clause 17 is to be found in subsection (1) of Clause 13 of the 1974 Act. But, as I pointed out when moving this amendment, I think that is a very strange starting point because the Government are abandoning a large part of the policy which underlies Section 13(1), so why keep it? My noble and learned friend's comments about my redrafting of Clause 17(1)—and I will not 1547 weary your Lordships with a detailed attempt to answer them—seemed to overlook the fact that subsection (2) of it, as well as subsections (3), (4), (5), (6) and (7), are being retained. However, although I feel that the Government are making heavy weather of this and I deeply regret that they are sticking to this particular form of very complicated and convoluted drafting, I feel that in the circumstances I have no option but regretfully to withdraw my amendment.
§ Amendment, by leave, withdrawn.
§ The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone)
My Lords, does the noble Lord move the other amendments?
§ [Amendments Nos. 2 and 3 not moved.]
§ Schedule 1 [Minor and consequential amendments]:
The MINISTER of STATE, DEPARTMENT of EMPLOYMENT (The Earl of Gowrie) moved Amendment No. 4:
Page 27, line 32, leave out ("(3D)") and insert ("(3E)").
§ The noble Earl said: My Lords, this change to paragraph 24 of Schedule 1 is entirely consequential upon an amendment your Lordships accepted at Report stage on 7th July. The House agreed then, as part of Clause 7, to insert a new subsection to Section 58 of the 1978 Act—subsection (3E). The paragraph of the schedule purports to cover all the new subsections to Section 58 introduced by the Bill, and so it should properly now refer to"58 (3) to (3E), 58A". This is what the amendment achieves. I beg to move.
§ On Question, amendment agreed to.
§ [Amendments Nos. 5 and 6 not moved.]
§ 3.29 p.m.
§ Moved, That the Bill do now pass. —(The Earl of Gowrie.)1548
§ Lord McCARTHY
My Lords, I am sure that on this Motion the House would want us to congratulate the noble Earl for having reached the end of the road on this Bill, which he has piloted through with his usual combination of urbanity and competence. We on our side of the House would only wish that such competence had been put to better use. To us, this remains a reactionary, an unrealistic and an irrelevant mixture of measures, and the noble Earl would not want us to join him in the restrained jubilation which he will no doubt show. The emotions running through our minds at this time—at least running through mine—really are three: a feeling of frustration, a feeling of despair, and a feeling of foreboding.
The frustration is easy enough to understand. If one has bowled 150 balls without taking a single wicket, one is entitled to feel frustration. If one has been met each time with what we on our side of the House have come to call "Gowrie's fork" then one is entitled to feel frustration. "Gowrie's fork", I should say, has two prongs. The first prong is labelled, "It's there already, so you don't need it; we know what we're doing". The second prong is labelled, "It's not there already; therefore it's not a good thing; therefore we don't intend to accept it". As I say, we have been met with "Gowrie's fork" on 150 or so separate occasions. The most elegant guise in which we met "Gowrie's fork" was in the reply of the noble and learned Lord the Lord Chancellor in the form of Ronnie Knox's parable of the new sin. It, too, had two forks if it is not new, it is not a new sin; and if it is new, then it is not a sin anyway. So we have been met with Gowrie's fork" throughout, and for that reason we feel a little frustrated.
I would say, however, in reply to the remarks of the noble and learned Lord the Lord Chancellor, who, at the Report stage, likened the noble Lord, Lord Wedderburn, and I to Don Quixote and Sancho Panza, in the most well-known passage in Cerventes, that this seemed to me a little inapposite. I thought much more of a lesser known work of the same author, the Minds of Algeria, where it is the fate of a group of young men to be captured by brigands and to suffer the torments of the damned, largely because of their total inability to communicate 1549 with their captors. So that is how it has felt for us. Meanwhile, of course, while we have felt frustrated the Bill has got worse—worse in the sense that the only two amendments which the Government have felt themselves able to accept have been the amendments which take out references to trade unions in the definition of a UMA, and which from our point of view make the Bill more difficult from the point of view of trade unions and union security agreements; and the amendment relating to compensation for pressure in relation to non-union sub-contractors, which again, from our point of view, makes the Bill less acceptable.
We do admit—I readily admit—that some of our amendments, from the Government's point of view, did not deserve to succeed because they quite legitimately went to the heart of the Bill; or, if not to the heart of the Bill, to the liver of the Bill. I can mention, for example, our attempt to replace the position in relation to union membership agreements; our attempt to abolish an unrealistic and unnecessary distinction between primary and secondary action; our amendment which was aimed to set aside the Government's attempt to make a distinction between off-site and on-site picketing. We opposed these things and we put down amendments on them because we argued that they would not work; because we argued that they would take this country back to the dark days of the 1971 Industrial Relations Act; because we believed that such proposals would undermine the functions of responsible representative trade union officials.
Those were indeed our amendments which, as I have said, went to the heart of the Bill. What I think produced more frustration were other amendments which were equally unacceptable to the Government, but which I should have thought were much more minimal in their scope and intentions. There were two groups, really—one group of amendments which we sought to advance to protect and clarify trade union practices which both in another place, and in this place at Second Reading, on Committee and on Report, the Government said they valued. Examples are our amendments designed to do something about the relationship between trade union rules and the ballot proposal; or the question of the position of the trade union constitutions as regards 1550 their position as legal contracts at common law; our belief that there was a contradiction and a potential conflict between the position of trade union rule books in common law and the position that they would be in as a result of this Bill; or the amendments that we put down successively to deal with the position of the Bridlington Agreement and the way in which the Bridlington Agreement seeks to deal with the problem of inter-union conflict; or the need for practical lapsing rules which was accepted by many noble Lords on the other side and, indeed, on all sides of the House; or, most particularly, the amendment we put down to deal with the role of trade union officials on the picket line, particularly the role of conveners.
All these amendments, I should have thought, were reasonable, moderate amendments which did not go to the heart or the liver or the guts of the Bill, but they found no acceptance. One might say, "But they were all really related in some way to the central aim of the Government, which is to redress the balance of power in industry, and you can't expect the Government to accept amendments of this kind coming from this side of the House which they feel, rightly or wrongly, may affect their central purpose. "In that case I would say to noble Lords," What about the other amendments which we sought to put down to mitigate the effect of the denial of individual rights, in particular in relation to small firms; the amendments concerning the onus of proof; the amendments we put down about the basic award and its abolition; the amendments we put down regarding the right to dismiss unfairly in small firms and the weakening of maternity rights? "We said, for example, "If you take away unfair dismissal rights, surely the employer should write and tell people in advance that those rights are being taken away. After all, you almost agreed to that in another place". "No", we were told, "it's bureaucracy".
We said, "If you multiply and complicate the notification arrangements, so that women in maternity cases may not know precisely what their rights are, surely it is only reasonable to put them in a standard form, to send out a standard form in which this is specified". "No," we were told, "the small employer won't like that". The smallest one of all was where we said, "Take the example 1551 which everyone would accept, the case of the swindling of part-time women out of their maternity pay by the multiple deduction of social security pay; surely something can be done about that". "Don't ring us," we were told, "we'll ring you". This really is where despair sets in. I suppose deep despair came to me on two occasions. The first occasion was when the noble Earl was telling us how, on the picket lines, shop stewards—I think it was senior shop stewards—should keep in touch with small shop stewards by telephone. That was my first moment of deep despair.
The second occurred when we were talking about individual rights and he flourished, as indeed the Minister in another place had flourished, a letter from the chairman of the Scottish Development Council, which was, we were told, the answer to all the statistics of the PSI, the ORC, the Warwick survey and so on. It so happens that on Wednesday 9th June the chief executive of the Scottish Development Council, Mr. John Robertson, appeared in this House before the Select Committee on long-term unemployment chaired by the noble Baroness, Lady Seear. He was asked on that occasion whether he could develop this point about the problem in relation to the Employment Protection Act with particular reference to employment in Scotland. I made a note of what he said. He said that he could not usefully give us any evidence. There might, he said, be some impression of this in Scotland; but, he said:There was no supporting evidence to offer".It was at that moment, once again, that I felt deep despair; because we are forced to believe, as a result of this debate, that noble Lords opposite actually are still convinced of two extremely over-simple contentions and that that is why they press on with this Bill. First, they are convinced that what they are pleased to call the extension of trade union rights in 1974 to 1976 were not only unjustified but actually in some way caused the winter of discontent. I think that I am being fair to the noble Earl when I say that when I read again yesterday his Second Reading speech it seemed to me that what he said bears that construction: that the extension of the trade union rights—if it exists; and we do not accept that it was an 1552 extension—between 1974 and 1976 was not merely unjustified but in some way caused the winter of discontent. Secondly, they are convinced that the Employment Protection Act, again in ways unspecified and unjustified by reference to surveys and so on has prevented a development of the animal spirits of the small employers who would otherwise have done all kinds of things to solve the problem of unemployment in this country. Therefore, despite anything which anyone might say, because of these two simple beliefs this Bill must go forward.
That is where I get a sense of foreboding; because if this is what is believed, what is likely to happen in October of the year or in December of the year or in the spring of the year when this Bill becomes an Act, when this Bill is on the statute book, when it is found to be (as we believe it will be found to be) totally irrelevant from the point of view of the problems that face this country, as unemployment rises, as investment continues to decline, as, given the position which the Government now adopt (and which they say they adopt) in relation to public sector pay we have a series of set-piece conflicts in the public sector in an attempt to get public sector settlements down to somewhere in the region of 10 per cent.?
I always believed that the world under this Government was becoming more like n—I' every day, more like the first two years of the Heath Administration; and that it would end in much the same way; that, in two years or so, there would be an attempt to do again what was attempted after two years of that administration; that it would end in the same way. But it may be that this is wrong. It may be that there will not be a U-turn of this kind. It may be that it is much more like 1927 than 1972: that this Government will press on with their measures and will press on with their policies and with their irrelevant legislation, so that when this Bill is found to be irrelevant to the problems of winter and of spring, they will press on with further legislation in this field.
We all know what this legislation will look like. The Government will turn, if they do this, to what has always been, from their point of view, the logical thing to do—which we have been told about on several occasions. The noble Lord, 1553 Lord Carr, said this on Second Reading. They will turn to consider the relevance of trying to levy directly against trade union funds; they will try to make trade unions directly responsible for breaches of the law by their authorised agents. This may be the next step. Of course, we shall be told (and we have been told in this House) that this is all justified and that we are completely out of step because public opinion is on the side of the Government; that arguments based on the impracticality and dangerous nature of policies of this sort are beside the point because the Government have public opinion on their side.
I am prepared to accept that there has been a certain lack of coherence on this side of the House in the argument which has been put up to answer this view. Therefore, in the few moments left to me I should like to say a few words about public opinion and this Bill. The first point to make—and it is a point which should have been made before—is that opposition to this Bill, the mixture of frustration, despair and foreboding which I have said that I and my noble friends on this side of the House have had is not confined to this side of the House. Nor is it confined to trade union bureaucrats, trade union officials and to the denizens of Congress House. It is in fact I find widespread among practical, practising management.
The fact is that the support for legal regulation as a cure for the so-called abuses of trade unionism is in inverse proportion to the day-to-day involvement of management in the problems of dispute settlement. As you move away from day-to-day involvement in dispute settlements up, in particular, into the higher echelons of the board room, you find more and more support for legal regulation as a cure for the so-called abuses of trade union government and policy. As you move down, in particular as you move towards the specialists and, most particularly, as you move towards middle management and personnel management, you find more and more scepticism about the value and the utility of measures of this kind.
I make no secret of the fact that it was this process of osmosis, of throwing them in at the deep end, making them listen to those who were involved in the day-to- 1554 day problems of dispute settlements, as against those who were not involved in the day-to-day problems of dispute settlements, which finally produced a majority on the Donovan Commission in favour of the proposals they advanced. It was only by taking people to listen to those who wanted legal remedies that the case against legal remedies was made.
Similarly, today, if we look at the evidence that the Government have received about this Bill and the degree of support for this Bill, there is an invariable relationship between the degree of involvement of management in the day-to-day processes of dispute settlements and their expectations in relation to this Bill. So that we can move from the Institute of Personnel Management, who are worried about many of its aspects, through the Engineering, Employers' Federation, on to the CBI and up to the higher, rarefied atmosphere of the Institute of Directors, who are very much in favour.
So the first point is that scepticism, this fear, this foreboding, is not confined to this side of the House; nor is it confined to trade unionists; it is, above all, shared (as it was in 1971) by informed management. The second point about public opinion in relation to trade unions is that it is very much more complicated than the Government admit. The noble Earl on several occasions has offered us sight of his surveys. I must admit that we have not taken up the offer. He has told us that he has many surveys about the closed shop and so on. I accept that such surveys exist. I also note that the ORC says that 86 per cent. of its latest survey would like to restrict picketing to off-site picketing; it says that 71 per cent. of its latest survey would like to outlaw secondary strike action; the ORC says (most notably of all; and this is the one that is used most frequently by the supporters of the Bill) that in 1979, 80 per cent. of those surveyed in a perfectly respectable, structured sample, said that the trade unions were too powerful. These are all factors which have been prayed in aid to support the Government in relation to this Bill.
A number of points could be made. First of all similar figures can be shown from ORC and other surveys to show that the public in general and trade unionists 1555 in particular, also believe that membership of a trade union is essential to protect workers' rights. They also believe, particularly in relation to their own union—but in relation to trade unions generally by slightly smaller figures—that trade unions are on the whole doing a good job. The fact is that the public is divided about trade unions.
The public distinguishes between trade unions in general and its own trade union. The public is against secondary action when it is done by other people. The public is against picketing when other people picket. The public is against other peoples' wage claims. Their wage claims are "reasonable"; other people's wage claims are "unreasonable". So the public is split in its attitude towards trade union action.
Secondly, if you want government by surveys or government by ground swells, there are just as large majorities in favour of certain other aspects of economic policy which this Government do not propose to follow. For example, any time you have an incomes policy you can always get 70 per cent. or 80 per cent. of the public saying it is an extremely good thing, saying that it is a very good thing for trade unions and Government to get together to settle the level of wages.
Thirdly and finally, the evidence of the 1970s shows, for example in relation to the 1971 Industrial Relations Act, that whereas there may be a large amount of support in public opinion polls for a particular proposal when the public feels that it is going to effect what the public hopes it will do, this support quickly erodes when it turns out that in practice the consequences are somewhat different.
That was the point that I was trying to make, perhaps not very well, in the debate on picketing at the Committee stage. We accept and we admit—we do not enjoy it, but we accept and we admit—that the position which we have adopted in relation to certain crucial aspects in this Bill—picketing, secondary action and union membership agreements—are not popular with the public at large. It is a serious thing for a great political party to take up unpopular measures and to stick to them. They are going to misunderstood and they are going to be 1556 exploited by their opponents. This is legitimate; I make no complaint about it. All I ask is that it should be understood that we all of us from time to time in political life oppose things which the majority at that moment in time appear to believe are necessary, and we oppose them because we think they are wrong; we oppose them because we think they will do more harm than good; we oppose them because we think that they will not effect what they intend to effect. That is our view of this Bill, and that explains our sense of foreboding.
I have one final point to make—not, I hope, a note of foreboding but a note of hope. I link it to the correct role, as I see it, of law in collective labour relations, because perhaps it is incumbent upon us to say a word about how we see the role of law in collective labour relations. It is sometimes suggested that we believe that there is no role for law in collective labour relations. A noble Lord who spoke at the Committee stage in the debate, the noble Lord, Lord Harris of High Cross—I am sorry he is not in his place today—read a quotation from Martin Seymour Lipsett which he had actually taken from a publication of mine. I would never dream of quoting my own publications in this House, but since Martin Seymour Lipsett has been quoted out of context, and since quoting him in context enables me to make the point I want to make about the correct role of law in labour relations, I want to end on this point.
The noble Lord, Lord Harris of High Cross, quoted from Martin Seymour Lipsett in the following way. He said:The significance of law does not necessarily lie in the extent to which it is obeyed. One of its major functions is to set a moral code or standard which society considers proper but whole parts can be violated within certain limits … People may engage in illegal or immoral actions, but the fact that they know these actions are illegal reduces the extent to which they occur, even if violators are rarely prosecuted.That was quoted against the position that I had adopted in relation to the closed shop. But I do not think it goes against what we have said and I do not wish to unsay what it says. No one says that you can pass only laws which will be universally obeyed. Laws are there as standards; of coures they are. But Seymour Lipsett also went on to 1557 say, in a passage which Lord Harris of High Cross did not quote:It is important to recognise, therefore, that the function of labour legislation may not be as much to create viable laws that can be used ' against' unions, as to set moral standards in an area of institutional behaviour that previousy was outside the realm of explicit moral standards".After a criticism of the American right-to-work laws, which in many ways resemble both the Industrial Relations Act and this Bill so far as closed shops are concerned, Seymour Lipsett said this:If it is to succeed, legislation of this sort ought to encourage self-regulation by unions themselves, and ought not to be obviously intended to impair the collective bargaining strength of the unions '. It should also be concerned with the more moderate task of laying down certain minimum pre-conditions' within which the unions can work".That would be my attitude and our attitude towards labour legislation, and it is, in finality, because we submit that this Government still do not realise that this Bill violates these principles that we believe that it will come to the same end as its unholy mother the 1971 Industrial Relations Act. Therefore it will have to be, as it will he, repealed by a future Labour Government in the same way as the 1971 Act was repealed. In the meantime interested parties will need to discuss what is to take the place of this Bill, based on a realistic appraisal of mutual needs and interests and not on impractical and mean attempts to return to the law as it was thought to be in 1905.