Lords Sitting of 12 June 1980

Preamble
The House met at three of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Peterborough):
The LORD CHANCELLOR on the Woolsack.

PERSONAL STATEMENT BY THE LORD SANDYS
Lord SANDYS: My Lords, with the leave of the House, I should like to make a personal statement. Yesterday I had occasion to move that Standing Order No. 29 be read aloud, and I should like to tell the House that on reflection I appreciate that this particular Standing Order was not appropriate, as no personal offence was intended by the noble Lord, Lord Bruce of Donington. For this I apologise to your Lordships' House.

HEATHROW AIRPORT/LONDON BUS SERVICES
Baroness BURTON of COVENTRY: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they will make a statement on the present position and proposed development of the bus service for air travellers between Heathrow Airport, the Victoria terminal and the former West London terminal.
Lord TREFGARNE: My Lords, British Airways operate the bus service between Victoria terminal and Heathrow Airport, and at present have no plans for any change in that service. The bus service between the West London Air Terminal and Heathrow Airport was discontinued in 1979, and there are no plans for it to be resumed.
Baroness BURTON of COVENTRY: My Lords, believing that the Minister
562
wishes to keep as watchful an eye on this area as I do, may I ask him whether he saw the BBC "Nationwide" programme on Wednesday, 7th May, when they televised a section on the declining numbers of tourists? Is he aware that they said that tourists and travellers had been greatly disadvantaged by the discontinuance of the bus service from the West London Air Terminal, something with which all sides of the House would agree? May I finally ask him whether, in view of that programme, he and his department would have a look at it, as I have given him the date and the time? And if he could write to me about it, perhaps I could put down another Question.
Lord TREFGARNE: My Lords, I did not see the programme to which the noble Baroness refers, but I shall certainly try to get hold of a transcript to see whether the things in it are relevant to the Question that the noble Baroness has put to me this afternoon. The noble Baroness referred to the declining numbers of tourists. I am not sure that that is correct in every field of tourism, but it is certainly the case that the bus service to which the noble Baroness refers has been losing money.
Baroness BURTON of COVENTRY: My Lords, I forgot the most important part of my supplementary question. May I ask the Minister (because I have to put it in the form of a question) whether he is aware that this section of the television programme said that inquiries were on foot for a new bus service to serve the West London Air Terminal and the surrounding area? Would he take that on board as well?
Lord TREFGARNE: I certainly will take that on board, my Lords, but I can say, as I said in my original Answer, that British Airways have no plans for such a service.
Lord KILMARNOCK: My Lords, may I ask the noble Lord whether he is aware that the present Underground link is not in fact the most suitable form of link for passengers with heavy luggage, especially in the rush-hour? The Underground trains were designed for commuters, and if you have no heavy luggage they are perfectly adequate; but I should like to ask the noble Lord whether he

563
would not take this into consideration in recommending to British Airways that they consider the re-establishment of that extremely valuable service to the West London Air Terminal.
Lord TREFGARNE: My Lords, the conduct of services such as this is a matter for British Airways, and they must make these decisions in the light of the commercial prospects. Both the service from the West London terminal, which was terminated a year ago, and the Victoria terminal are losing money, and this must therefore be a matter for British Airways. As for the general matter of passengers with luggage, while I accept that there are some difficulties for passengers with very large amounts of heavy luggage on the Underground service, there is already an existing Green Line bus service to London Airport; and I must say that those with large amounts of heavy baggage really ought to consider whether they should not use a car or a taxi of some sort.
Several noble Lords: Oh!
Baroness MACLEOD of BORVE: My Lords, may I ask my noble friend whether he is also aware that there are mothers with children who travel by air, that there are also disabled people and that there are also very elderly people? None of those categories can possibly manage to use the Tube if in fact, as is usual, they have any luggage as well. If you have small children, it is absolutely essential to have a bus service. Is my noble friend also aware that the use of a taxi service or a private car hire service is really beyond the financial means of most people?
Lord TREFGARNE: My Lords, we are talking about people who are going to London Airport to travel long distances at very considerable expense. I certainly agree that taxis and cars are of course more expensive than the bus service, but the fact is that the numbers of people who want to use the bus service are not sufficient to make that service viable.
Lord WYNNE-JONES: My Lords, is the noble Lord aware—I know that he takes a great interest in these matters—that the matter which has been raised
564
today by my noble friend Lady Burton (and she has raised it frequently before) is something which really concerns a large number of us? In the last month I have had reason to go out to Heathrow on three occasions, and it is impossible to get direct transport from the Victoria terminal to Terminal No. 2. You can go to Terminal No. 3 and Terminal No. 1, but not to Terminal No. 2, from which a number of flights which are linked with British Airways leave. It is a serious matter to lug something across from Terminal No. 1 to Terminal No. 2. Alternatively, of course, one can wait for the inter-connecting bus. But does the noble Lord think that is desirable when, having gone out there and timed it carefully, one finds that the next bus arrives in a quarter of an hour's time? Does he not realise that it has become progressively more difficult to get out to Heathrow, and would he take this matter up seriously?
Lord TREFGARNE: My Lords, I do not think the noble Lord is right in that. The opening of the Underground service to Heathrow has proved a very considerable benefit for a great many travellers. Certain difficulties have been raised about travellers with, for example, a number of small children or a very large quantity of heavy baggage, and I have answered those questions. But it is not true to say that the arrangements are generally less good than they were; they are not.
Lord FERRIER: My Lords, in the light of what my noble friend Lady Macleod said, would my noble friend ask the airway authorities whether they realise that there are a large number of passengers (and I include myself among them) who simply will not go to Heathrow now? If I cannot get to Gatwick, I go by train.
Lord TREFGARNE: My Lords, if my noble friend is referring to the services from Heathrow to Scotland, for example, then I must tell him that the surface links between Central London and Heathrow are just as good as the surface links between Central London and Gatwick, and I would advise my noble friend to think again.
Lord MONSON: My Lords, is the noble Lord aware that, if the existing coach link from Victoria is abolished for

565
financial reasons, London will then be the only capital city in Europe without a bus or surface rail link to its main airport?
Lord TREFGARNE: My Lords, as I have said, British Airways, who operate the present service, have no plans to terminate it at the present time. If there are all that many passengers who think that the service ought to be maintained, as perhaps it should, then they will show that by using the service.
Viscount BROOKEBOROUGH: My Lords, is the noble Lord aware that the Underground have a very special hazard for people with even small amounts of luggage? They have a barrier above a set of stairs before one goes down so that one cannot take a trolley down to the platform. This is an absolute barrier to one getting through—and one does not even have to have much luggage for it to be quite a lot to carry down the stairs.
Lord TREFGARNE: My Lords, I am aware that trolleys are not permitted on the Underground station at Heathrow because of the danger that the trolleys might fall on to the track. A lift is available there for use on request.
The LORD PRESIDENT of the COUNCIL (Lord Soames): My Lords, I think the House will agree that we ought to move on.

THE FALKLAND ISLANDS: TALKS WITH ARGENTINA
3.10 p.m.
Lord BUXTON of ALSA: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they can report on the outcome of recent talks with the Government of Argentina on matters concerning the Falkland Islands.
Lord TREFGARNE: My Lords, I must apologise for the length of this Answer. As was stated in another place on 8th of May, my honourable friend the Minister of State, Mr. Ridley, met an Argentine delegation led by the Under-Secretary of
566
State at the Argentine Ministry of Foreign Affairs, Comodoro Cavandoli, for wide-ranging and exploratory talks in New York on 28th and 29th of April. A Falkland Islands Councillor, Mr. Adrian Monk, attended as a member of the United Kingdom delegation. The exchanges were cordial and positive. Each side was able to reach a better understanding of the other's position. We made clear that we remained convinced of our sovereignty. No decisions were taken, though it was agreed that contacts on day-to-day matters between the Islands and Argentina should be expanded. Each delegation is reporting back to its Government. We hope to continue these exchanges.
Lord BUXTON of ALSA: My Lords, in thanking my noble friend for that Answer, may I put one very important question to him? Bearing in mind that the lack of initiative and enterprise in the Falkland Islands, except for sheep farming, derives from uncertainty and indecisiveness by successive Governments throughout the century, will this Government now extend the fishing limits to 200 miles round the Falkland Islands and Dependencies? In my view, that would be in the best interests both of Britain and of Argentina, the more so because those waters are being heavily exploited and over-fished by Eastern bloc fleets, including Russians and Poles.
Lord TREFGARNE: My Lords, dealing with the point made by my noble friend, fishing and the exploitation of resources by third parties round the waters of the Falkland Islands were discussed in the recent talks in New York. We continue to keep under close review the question of extending dependent territory fishing zones, including those of the Falkland Islands and Dependencies, to 200 miles; but there are no plans to do so at present.
The Earl of LAUDERDALE: My Lords, can my noble friend say what else was talked about; or were the talks only about fishing?
Lord TREFGARNE: My Lords, I am afraid that these talks, like all such talks, are generally of a confidential nature and I cannot go into details.
The Earl of LAUDERDALE: My Lords, is my noble friend saying that he cannot give us any idea whatever of the subjects, even the heads of discussion? He has said that the talks were cordial and frank and so on. Can he give us any idea of what it was all about?
Lord TREFGARNE: My Lords, I do not think that my noble friend heard what I said earlier. Talks of this nature are always confidential.
Lord GORONWY-ROBERTS: My Lords, may I ask the noble Lord whether he is aware that we on this side of the House are certainly sensitive to the delicate nature of these talks and that we find what the noble Lord has just had to say in response to the Question of the noble Lord, Lord Buxton of Alsa, encouraging? It is satisfactory that there is good feeling between Britain and the Argentine, two long-standing friends who look forward to even closer co-operation in the future, including co-operation in solving the problems of the Falkland Islands.
Lord TREFGARNE: My Lords, I am obliged to the noble Lord for that helpful intervention.
Lord DAVIES of LEEK: My Lords, is the noble Lord aware that on this side of the House some of us look with admiration on his efforts to answer every question across the board? He is almost a polymath in his efforts to defend the Government.

LOCAL GOVERNMENT RATES AND EXPENDITURE
3.15 p.m.
Baroness ELLIOT of HARWOOD: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether, in view of the reported increase in rates in the London Borough of Lambeth, they intend to see that local authorities fully contribute to plans for economies in spending on public service manpower.
The PARLIAMENTARY UNDERSECRETARY of STATE, DEPARTMENT of the ENVIRONMENT (Lord Bellwin): My Lords, there are indeed indications that local government as a whole had budgeted for a higher volume of current expenditure in 1980–81 than is called for by the Government's expenditure plans. This is quite unacceptable. My right honourable friend proposes to ask all local authorities to revise their expenditure plans downwards and to submit new returns by 1st August. In the light of those returns, we shall consider whether further action is necessary. Since wages and salaries account for nearly three-quarters of gross current expenditure, it is clear that manpower reductions are essential if the proposed reductions in local government expenditure are to be achieved in 1980–81 and following years.
Baroness ELLIOT of HARWOOD: My Lords, I thank my noble friend for his reply. I hope very much that the Government will be successful in this. After many years in local government, I know that the temptation to appoint more people and to pay them more is very great. I hope that he will be successful in reducing the numbers employed by the local authorities.
Lord BELLWIN: My Lords, I am grateful to my noble friend for those helpful remarks.
Lord MISHCON: My Lords, does the noble Lord realise that local authorities are being forced by Her Majesty's Government to take this position: either to fail to provide vital local services or to increase the rates? As this House knows that the noble Lord is humane as well as a human being, which choice would he make if he were once again a local councillor?
Lord BELLWIN: My Lords, as your Lordships would expect, I do not by any means accept the thesis that the noble Lord submitted. I think that the first thing that local government has to do—and there are many authorities doing it—is to ensure that they are getting value for the money that they spend. I would hope that no one in this House would for a moment intimate that that is not possible—because it is possible. Until that has

569
been done, the other questions that the noble Lord put to me are, I fear, secondary; but I should gladly expand on that on a more appropriate occasion.
Viscount RIDLEY: My Lords, is my noble friend aware that Lambeth is by no means a typical local authority, and that many local authorities have tried for many years to curtail their expenditure?
Lord BELLWIN: Yes, my Lords, I am grateful to my noble friend for that point. I hoped I had touched upon it in my first response. I am aware that that is so; but it is unfortunate that sometimes the actions of certain local authorities (of which it would have to be said that Lambeth is one; although not the only one) in total contribute a great deal which rebounds adversely upon local government as a whole—when most people in local government are trying to do what the Government have said needs to be done to restore the economy to where it has to be. Then will be the time to talk about services being improved in the way that we all want to see them improved.
Lord SHINWELL: My Lords, can the noble Lord explain why Lambeth Borough Council is singled out for this Question? Does not the general principle apply to every local authority in the country?—for example, to the council in which I am interested, Westminster Council, where the rates have gone up excessively, to which I object. And I have no information about the manpower that is being used or abused. Why single out this particular council?
Lord BELLWIN: My Lords, I am not responsible for the Questions that are put down or for the way in which they are put down. I can only suspect that it is because Lambeth has been more vocal than others in declaring its intention to try to thwart the policies of the Government.
Lord BYERS: My Lords, may I ask, as a resident of Lambeth, whether the noble Lord is aware that the rates in Lambeth this year went up by 50 per cent.—which is a very heavy burden on those who live there? Is he also aware that there is tremendous scope for cutting down non-essential services and for a thorough
570
shake-up of manpower; because Lambeth Council is totally overmanned?
Lord BELLWIN: My Lords, I am very much aware of the point that the noble Lord makes. May I add strength to his point by reminding him (if as a Lambeth ratepayer he needs to be reminded, which I doubt) that the 50 per cent. to which he referred goes on top of the 40 per cent. in the previous year.
Lord BROOKS of TREMORFA: My Lords, if it is the intention of the Government, declared over and over again, to set the local authorities free, why do the Government insist on interfering with the local authorities?
Lord BELLWIN: My Lords, if the noble Lord says that it is interfering with local authorities to call on them to follow national policies, I would remind the noble Lord of the infamous Circular 45 of 1976 which the previous Administration put out—and to which local authorities responded in the way in which I am hoping they will respond to the circulars of the present Government.
Lord MELCHETT: My Lords, will the noble Lord accept that for many people living in the local authorities that he is attacking, including Lambeth and other London boroughs, the actions that those local authorities are taking represent the one bright spot in a sea of gloom and destruction being wreaked by the Government on social services and other services of the working people? It is absolutely disgraceful for him to say that these local authorities are giving local government a bad name, when they are doing quite the reverse.
Lord BELLWIN: The noble Lord is entitled to his view, my Lords. I represent a Government which have set policies for which they have a mandate from the people as a whole. They are entitled to expect that Lambeth or any other local authority pay and do their share to contributing to enable them to carry out those policies, in the same way as I said a moment ago that local government as a whole did for the previous Administration in 1976.
Lord SOAMES: My Lords, I think that we have heard enough on this Question.

BRANDT REPORT: GOVERNMENT'S CONCLUSIONS
3.21 p.m.
Lord ORAM: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
The Question was as follows:
To ask Her Majesty's Government whether they have concluded their examination of the Brandt Commission Report, and when and in what form they propose to publish their conclusions and proposals for action.
Lord TREFGARNE: My Lords, we shall very shortly conclude our examination of the Brandt Commission's Report. The Government will hold a debate in another place on the 16th June in the course of which we shall give our considered views.
Lord ORAM: My Lords, should not the Government already have indicated their views? The term of art "very shortly" is one which implies a lack of urgency in this matter. Do the noble Lord and the Government not realise the extreme urgency of the world trade and economic situation which was so cogently analysed by the Brandt Report, and has not the president of the World Bank, Mr. McNamara, indicated his view that the world situation is even more urgent and grave than is set out in the Brandt Report? In view of that, will the Government treat the matter much more urgently? May I ask, for example, whether the Prime Minister is proposing—as I think she should—to raise these matters at the Venice Summit Meeting today or tomorrow?
Lord TREFGARNE: My Lords, I hardly think that we are exhibiting lack of urgency when I announced that our conclusions are almost complete and that we shall be giving them in a debate in another place on Monday next. But as for the report itself, of course it is an important report. It contains (if my memory serves me aright) nearly 200 pages and we have been no longer than usual—in fact, rather quicker than usual—in digesting it, absorbing it and coming to our conclusions. As to whether or not the matter will be discussed at Venice,
572
it is possible that it will be raised there but I cannot give an assurance on that.
Lord GLADWYN: My Lords, if the matter is not going to be raised in Venice, will the Government see to it that it is raised very urgently at the council meeting of the EEC?
Lord TREFGARNE: My Lords, I can say that European leaders at their council meeting in Luxembourg on 27th and 28th April noted the significance of the Brandt Report and instructed that it should be taken into account in preparing Community positions on North-South issues.
Lord HARMAR-NICHOLLS: My Lords, is my noble friend aware that the Brandt Report does not call for urgent consideration; it calls for careful consideration? It covers a very wide field in very loose phraseology. If we are not careful we can find ourselves, out of emotion, led down a road which will take some sorting out later on. That could be the situation if we commit ourselves precipitately.
Lord TREFGARNE: My Lords, my noble friend is quite right. There are a number of important issues dealt with in the Brandt Commission's Report which need to have, and are receiving, careful consideration. It needs both careful and urgent consideration.
Lord HATCH of LUSBY: My Lords, is this good enough? If the Brandt Commission's Report or the matters arising from it are to be discussed at Venice during the current conference, would the noble Lord not agree that the Government's views should be put to Parliament before they are put to the Summit Meeting in Venice, in order to avoid the difficulty into which the Foreign Secretary got himself in Naples by announcing a policy which was not then supported by Parliament here?
Lord TREFGARNE: My Lords, I did not say that our considered views were going to be put to the meeting in Venice. It is, in any event, open to the leaders of every Government to speak frankly with their colleagues when they have these meetings.
Lord HOUGHTON of SOWERBY: My Lords, is the noble Lord aware that the British Parliamentary Group for Population and Development, which is an all-party group of both Houses, has sent a message to the Prime Minister asking whether she will use her powers of initiative at the Venice Summit to get notice taken of the widespread extension of starvation and privation in the world today? There is an urgency about this matter, as my noble friend Lord Oram and others have said, and if time can be devoted to consideration of world affairs at the Venice Summit it will be a great service to humanity.
Lord TREFGARNE: My Lords, I am sure that the noble Lord is quite right.

BUSINESS
Lord DENHAM: My Lords, it may be for the convenience of your Lorsdhips if I announce that dinner will be available this evening at the usual time.
The Committee stage of the Employment Bill will be adjourned at approximately seven o'clock for about one hour.
The Pool Competitions Act 1971 (Continuance) Order 1980 will be taken during this adjournment.

HEALTH SERVICES BILL
Brought from the Commons; read 1a, and to be printed.

EDWARD BERRY AND DORIS EILLEEN WARD (MARRIAGE ENABLING) BILL [H.L.]
3.27 p.m.
Lord LLOYD of KILGERRAN: My Lords, I beg to move that this Bill be now read a third time.
Moved, That the Bill be read 3a.—(Lord Lloyd of Kilgerran.)
Lord MANCROFT: My Lords, I wish to take up one minute of your Lordships' time on a procedural point. I will take no more than one minute because I know that we have important business
574
ahead of us. This is an unusual Bill. I approve of it entirely and will of course agree to its Third Reading. But it is a Private Bill, which is very unusual. I want to make certain that we are clear what will happen when it leaves your Lordships' House.
The reason why I raise this point is that we have been having trouble recently over a Private Member's Bill—which is not the same as a Private Bill—leaving your Lordships' House with approval from all sides. It was non-controversial but was treated in another place in a way in which I do not think we would dare to treat a Private Member's Bill brought up from another place to your Lordships' House. I must be very careful not to say anything that would exacerbate feelings between the two Houses. I draw your Lordships' attention to the treatment of the Betting, Gaming and Lotteries (Amendment) Bill, in which I have declared an interest, because it covers the greyhound industry with which I am concerned. That Bill was used as a "ping-pong" in another place when they were engaged in controversy over the Abortion (Amendment) Bill.
The contact between greyhound racing and abortion is, to say the least of it, tenuous. Nevertheless, this little Bill was pushed backwards and forwards Friday after Friday as a part of the political tactics to which the other House is entirely entitled. It was aggravating to those from all sides in your Lordships' House who had wholly approved of the Bill. Eventually, thanks to the cunning of an old friend on the Back-Benches, the Bill was slipped through on a wet Friday afternoon when nobody was paying full attention. It was passed and now becomes an Act.
This is something I have raised with my noble friends on the Front Bench and they are a little concerned. I hope that noble Lords opposite are equally concerned in this matter. The amity between the two Houses on Private Member's Bills should not be prejudiced by parliamentary "ping-pong" in another place. I am merely asking the noble Lord who is in charge of this Bill, not to give me an answer, because he may not know it, but to make quite certain that no risk runs this Private Bill as ran Private Member's Bills in days gone by. As I

575
strongly support this Bill, I should hate to see it share the same fate as mine so very nearly did.
Lord LLOYD of KILGERRAN: My Lords, I have noted what the noble Lord, Lord Mancroft, has been good enough to say regarding the procedures and some difficulties he has experienced in regard to Private Member's Bills in another place. As he will appreciate, the present Bill is not a Private Member's Bill but a Private Bill promoted by two persons from outside Parliament. The Bills with which he has apparently had problems in the other place—and of course I cannot comment in any way on procedures in another place—have arisen on the initiative of Members of Parliament and therefore are dealt with by quite different procedures.
Like the noble Lord, Lord Mancroft, I hope this Bill will quickly pass through all it stages. I also endorse the hope expressed by many Members of your Lordships' House, including the noble and learned Lord who sits on the Woolsack, that this couple will soon be able to have a happy marriage.
On Question, Bill read 3a, and passed, and sent to the Commons.

EMPLOYMENT BILL
3.32 p.m.
The MINISTER of STATE, DEPARTMENT of EMPLOYMENT (The Earl of Gowrie): My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.
Moved, that the House do now again resolve itself into Committee.—[The Earl of Gowrie.]
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL in the Chair.]
Clause 12 [Time off for ante-natal care]:
On Question, Whether Clause 12 shall stand part of the Bill?
Viscount ROCHDALE: I want very briefly to raise one matter at this point.
576
Under this clause, employers will have an obligation with regard to pre-natal care to allow their employees paid time off. That is fair enough. The importance of it is not questioned, and in fact I think it is becoming increasingly recognised. This obligation that employers have is subject to one or two conditions. The individual employee has to produce a certificate of pregnancy and an appointment card, but with those an employer cannot reasonably refuse the employee's application. There are many companies today who provide this paid time off voluntarily, and no doubt it could be that a great many more could be persuaded to do so. As I understand it, Her Majesty's Government have decided that it would be preferable for this to he made a statutory obligation. Undoubtedly that goal is a good one and I have no doubt, knowing my noble friend's concern for maternity problems, which I share with him, that he thinks this is right, despite two possible points I have heard mentioned. The first is that it could be a disincentive to some firms to employ too many young women, though I do not myself think much of that argument. Secondly, it could add an unusually great burden on some of the very small firms. The point I want to make is on a narrow part of this only: that is whether the obligation on the part of the employer should be allowed to apply not only to whole-time workers but to part-time workers also. When I say "part-time workers" I use the definition which is given in the Employment Protection (Consolidation) Act 1978, which is as follows:
"… part-time workers being those who work less than 16 hours in the week."
At present the clause applies to those part-time workers, so that an employee can claim paid time off even if she works less than 16 hours; and the argument surely must be that in that case she would find the time for pre-natal care in the other 20 or more hours when she is not working. That seems to be fairly obvious.
I am not suggesting that this right is likely to be abused; not at all. However, I not not think that from the employer's point of view the defence of "unreasonableness" is really a very sound one, because if the employer wants to put up a defence that this is unreasonable he has to go to an industrial tribunal, which

577
may be costly, and which is time-absorbing, and of course he does not know what the outcome will be. Therefore my question to my noble friend is: will he consider favourably, perhaps at the next stage of the Bill, an amendment which would limit the operation of this clause to whole-time workers? Would he perhaps accept such an amendment, or, better still, would he himself put down an amendment to that effect? I am sorry to have delayed your Lordships on this point, but it is important and I look forward with interest to what my noble friend has to say.
Lord McCARTHY: I want to say just one or two very quick things about this clause which, in general terms, we are very glad to see there and which we welcome. I remember that the noble Earl said in response to a question of mine in an earlier debate, that he had done something as a result of pressures from the Trades Union Congress and that it was unfair of me to say that he had not. He trotted out time off for ante-natal care, and I am very glad to see it there and we welcome it.
I am also very glad to see that under this provision no exception is being made for small firms. The philosophy of small firms is not to apply to ante-natal care. The only point of clarification I want to make concerns the words "not unreasonably refused". I suppose the noble Earl would say that is a matter for the tribunals. What concerns me is that "not unreasonably refused", as it stands, might give the individual employer a considerable degree of latitude and it would only be if the individual worker—to some extent this is an answer to the point made by the noble Viscount, Lord Rochdale—went to a tribunal because in her opinion this particular phrase "not unreasonably refused" was being unreasonably interpreted that she would find out whether or not it was reasonable.
The kind of interpretation which an employer might put upon this, which he would think would be quite reasonable, would he to say to the employee: "You can get off for ante-natal care but I cannot spare you on Friday afternoons because we are very busy then", or the man might say to his secretary: "You can go when I am out of the office", or "when I am in the office" or, in the case of, for
578
example, a very small retail establishment, he might say: "This is our busy time of the year. I am afraid we cannot spare you at any time over the next four or five weeks."
What I am asking really is: have the Government any plans to try, for example, in a code of practice either by the Secretary of State or ACAS, to give tribunals, or indeed management, guidance as to what "not unreasonably refused" means? In this area it would be very widely interpreted, sometimes against the interests of the woman concerned.
The Earl of GOWRIE: I should also like, with the noble Lord, Lord McCarthy, to take the opportunity of clause stand part to pay tribute to the efforts which the TUC, in particular, have made, and are making, to assist pregnant women to a safe and healthy pregnancy and childbirth. They have not only pressed for legislation on the lines of Clause 12, and given a lead on workplace health education projects for pregnant women; they have also encouraged affiliated unions to participate in campaigns and to promote projects and co-operated with the Health Education Council and its "Mother and Baby" campaign. The Government are anxious to play their part here and to help along similar lines.
Of course, we know that the great majority of employers already behave reasonably about allowing paid time off for ante-natal care. But we feel that this provision will encourage women who might otherwise be reluctant to take time off or even to ask for it for this important purpose. That is really why we feel that a little statutory underpinning would not provide any serious difficulty.
Coming to the points raised by my noble friend Lord Rochdale, I understand my noble friend's concern when he says that the right could be abused, if a part-time employee asked her employer for time off to attend a clinic, when she could so easily do so in her own time. But employers are protected, since sub-section (1) of the new provisions states that an employee who is pregnant shall have the right not to be unreasonably refused time off during her working hours. Therefore, if the employer has reason to believe that the woman is abusing her right to ask for time off,

579
it would be reasonable for him to refuse it. As we have said in many other contexts during the debates on this Bill, industrial tribunals are well accustomed to assess reasonableness in situations of this kind, and I am sure that they would reach common-sense decisions.
On the point of the issue of guidance, which the noble Lord, Lord McCarthy, raised, I must say that I rather doubt whether there will be many cases of this kind coming before industrial tribunals. It seems to me very unlikely that an employer would refuse a woman time off for this kind of activity, and I should have thought that sensible arrangements would, in 99·9 per cent. of cases, be reached between the employer and the employee. We regard it as of overriding importance that all women should be afforded the opportunity to receive ante-natal care, particularly because it is often the part-time low paid employee who is most at risk during pregnancy, and for whom the right to paid time off for ante-natal care is so important.
Therefore, I should prefer to stick to the lines along which the Government are thinking. I should have thought that the amount of time off involved would be too small for there to be any reasonable likelihood that a small firm would be in any way incommoded. But I will monitor the progress of the provision and, if it looks like causing difficulties for small businesses, of course we can always come back.
Clause 12 agreed to.
Clause 13 [Guarantee payments]:
3.43 p.m.
On Question, Whether Clause 13 shall stand part of the Bill?
Lord McCARTHY: I am afraid that we have to start carping again at this stage—gently. We regard what is being done in Clause 13 as small-scale meanness. It restricts the guaranteed pay provisions to no more than five days in a rolling period of three months, as against the present fixed period of three months. This is a technical issue to many people, but it is really quite simple. It means, in effect, that workers are not likely to get
580
two periods of five days in a short time. Yet it is admitted, and was admitted by all parties at the time when the present system was introduced, that a rolling period would be a more complicated system, requiring additional records on the part of the employers, as well as meaning, in certain circumstances, certain dis-benefits for the workers concerned. Indeed, at that time the CBI was quite strongly in favour of the present system of fixed periods.
It was also accepted—and, indeed, it cannot be denied—that any movement away from the present system to the rolling period system will produce more anomalies, in which two workers in very similar circumstances could find themselves with what they thought were quite different rates of benefit. Even today—when, I am afraid, the CBI has changed its position, largely because I think it has been very heavily lobbied, this time by a few large firms rather than small firms, who say that in short intervals they have had to pay for two five-day periods—this change is still opposed by a number of other management organisations, and was most effectively opposed in the evidence of the Institute of Personnel Management, as well as by the TUC.
On this, it seems to me hardly possible to deny the views of the Low Pay Unit, and I quote from its evidence. It said:
"The proposed limitations of guarantee payments to no more than five days in any period of three months further extends the labour market disadvantage of the low paid. The low paid manual or lower grade clerical worker is more vulnerable to unemployment and short-time working, which already puts entitlement to social security benefits at risk. Moreover, because the low paid are less likely to be organised, minimum legal provisions are of correspondingly greater importance. Low paying industries have been over-represented among those most affected by stoppages and short-time working. The weakening of protection against fluctuations in earnings will only compound the poverty of the low paid".
Therefore, although this is a small and technical matter we think that it is important and we oppose this clause.
3.48 p.m.
Lord ROCHESTER: I should like, briefly, to support the noble Lord, Lord McCarthy, at least to the extent that our feeling is that the provisions of this clause are, on the face of them, retrograde, if only because in moving, as the Government propose, from fixed to so-called rolling periods they appear to be widening

581
the differences in employment conditions between so-called white collar and blue collar staff, at just the time when, surely, everything should be done to narrow that gap. If I remember rightly, it was on that score that the Institute of Personnel Management also had something to say. At least, I welcome this opportunity of inviting the noble Earl to comment on that aspect of the matter, before we accept that this clause should stand part of the Bill.
Lord LYELL: The Committee will have been interested to hear the comments of the noble Lord, Lord McCarthy. He made great play with the problems of the lower paid, but I wonder whether those problems are relevant to the provisions of this clause. I should like, first, to remind the Committee that under the provisions of Clause 13 an employee is entitled to a guaranteed payment by his employer to a current maximum of £8 a day for the first five days of lay-off in each quarter. One wonders what are the reasons behind these provisions. It would be interesting to examine them. They were primarily designed to cover lay-offs of short duration. The responsibility for paying workers during lay-offs of this kind, which normally last no more than a few days, should fall just as properly on the employer as on the state. The present provisions, with the built-in limits, were designed to ensure that employers should provide minimum standards of protection to workers on temporary or short-term lay-offs.
Before these provisions were introduced, the Committee will know that very wide variation in protection was afforded to differing groups of workers. I do not know whether that was what the noble Lord, Lord Rochester, was aiming at in his comments about blue and white collar workers. We hope that by means of these provisions there is unification of the protection. The majority of manual workers already had considerable protection through voluntary agreements with the employers, but many such workers received no payment during lay-off.
These provisions set out some minimum rights for employees at relatively little cost to the employer. That is an important point which we have to remember. The limit of five days in each quarter was so restricted as to take special account of the
582
fact that the provisions would fall to be complied with at a time when employers would already be faced with financial difficulties which, in many cases, would cause them to lay off workers.
We might admit that the provisions could be open to one minor criticism. As they stand, where the lay-off spans two quarters the employer can be responsible for paying 10 days' pay in quick succession. That would be five days' pay for lay-off at the end of one quarter, followed immediately—or very closely, as the noble Lord, Lord McCarthy, seems to accept—by five days' pay at the beginning of the next quarter.
Even with the present limit, we think that this imposes a very severe burden. What it amounts to is a windfall for the employee. The Committee will be aware that such a situation arose especially during the winter of 1979 when the road haulage dispute was in progress and, indeed, to a lesser extent during the early months of this year while the steel dispute was in progress.
I do not think that I am able to say much more on the clause, but may I reply to one point which was made by the noble Lord, Lord McCarthy. I hope he will not forget that any of those workers who are not in receipt of guaranteed pay qualify for unemployment benefit in the usual way, which will probably be more generous than the lay-off pay and the guaranteed pay.
We believe that the provisions of Clause 13 are an attempt to bring some reasonableness to the anomaly of lay-off pay, because we believe that this system, as it is in effect at the moment, provides what we call a windfall for the employee at the expense of the employer who will already be under considerable financial pressure. I hope that the Committee will accept the reasons for including Clause 13 in the Bill.
3.54 p.m.
Lord ROCHESTER: With the leave of the Committee—I am sorry to go on about this—may I say that the noble Lord, Lord Lyell, did not quite understand what it was that I was saying, or perhaps I did not make it sufficiently plain. I fully understand why it is that the Government have introduced this provision, in

583
the light of the damaging national strikes which took place last year and again this year. Perhaps I had better keep away from the expression "blue and white collar staff". What it amounts to, broadly speaking, is that in the case of those people who are paid salaries by the month, no question of guaranteed payments arises. Their salaries are protected throughout disputes—for quite long periods of time. The difficulty arises in the case of people who are paid on a weekly basis, and in whose case there is a limit to the number of days of guaranteed pay which they may receive.
As I understand it, the effect of this clause is to reduce the number of days of guaranteed pay to which they are entitled. That has the effect, as I was trying to say earlier, of widening the gap between people who are paid by the week and people who are paid by the month. It is that point about which we are concerned.
Lord McCARTHY: On that point, may I quote what the Institute of Personnel Management said:
"Although it may seem logical to adopt a rolling period approach to guaranteed pay, the Institute strongly opposes the intention expressed in the consultative document, in so far as it would have the effect of worsening blue collar conditions of service vis-à-vis white collar employees".
That is exactly the point and it has not been answered by the Government.
Baroness SEEAR: Surely it is stretching language somewhat—
Lord HOUGHTON of SOWERBY: I think that we ought not to have too many speeches from the Liberal Benches without somebody else coming in between. When the noble Lord was speaking a moment ago he referred twice to the windfall to the workers which the incidence of the present law gives in certain cases. Anybody would think, from the use of the word "windfall", that they had won something on the pools—that some bounty or bonus had come their way. Actually, this is only compensation for what would otherwise be loss of pay for the day. This is an important matter for any worker. Compensation, which may fall well below his actual earning rate for the
584
day, can scarcely be described as a windfall.
I think this is a mean little clause—a hangover from that bitter winter which we keep bringing up as a justification for doing many dubious things. It is true, of course, that the definition of "quarter days" in the Act does, in certain cases, lead to two lots of compensation within the same quarter, but it allows only of a maximum of 10 days in such circumstances: five for each of the two periods, but both within the period of three months. There is nothing extravagant about this.
The noble Lord says, "Of course they can go off and get unemployment benefit". But some people do have a little dignity left, even though they are in employment. To say, "Well, off you go and sign on and get your unemployment benefit", when the stoppage of employment is going to last for only a few days is, I think, a little humiliating for any zealous worker. These people turn up for work, and in certain circumstances the work is not there. That is what we are talking about. The law already provides that when the lack of work arises from an industrial dispute internal to the organisation they do not qualify. It is only when there are outside influences of the kind which occurred during the lorry strike of that winter that the clause becomes operative.
In the circumstances, I think that the Government ought to withdraw this clause. It is a spiteful little thing. I do not see that it is justified by any considerations of equity or fair dealing. My final word is this, that we do not want to go on re-emphasising the distinction between the white collar worker and the blue collar worker; we want to bring them closer together. As the noble Lord, Lord Rochester, said, if you are a clerk or an executive officer—a monthly paid office worker—you do not suffer from this sudden interruption of earning capacity from which many other workers do suffer. I think that on all counts this clause stands condemned and ought not to be pursued.
The EARL of GOWRIE: I am surprised that the noble Lord, Lord Houghton, has not borne in mind the fact that the Government have been under very considerable pressure to go much further in respect of these guarantee pay

585
provisions. We have during our long consultation period on this legislation received an enormous number of representations that employers should be relieved of the obligation to pay employees who have got to be laid off as a result of extraneous industrial action. We have resisted these representations; so much, I think, for the accusation from the noble Lord, whose views on all these matters I respect so much, that we are behaving in some niggardly or mean way and should withdraw the clause. We think that that would be to go too far altogether and would also get us into difficult problems of definition.
I would say to the noble Lord, Lord Rochester, that we recognise that there are occasions when guaranteed pay would have been greater than the unemployment benefit actually payable, but I think we must take account of the potential burden on employers which can exist there. We have resisted some representations to go further, as I have just said. We feel that it is a reasonable and balanced clause between the interests of the parties concerned, and certainly I have no intention of recommending that the clause be withdrawn.
Clause 13 agreed to.
Clause 14 [Action short of dismissal relating to Trade Union membership and activities]:
4.2 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 75E:
Page 15, line 40, leave out subsection (1).
The noble Lord said: This is a clause which it is very important for your Lordships' Committee to consider in some detail, for the reason that it replaced a previous clause in the Bill which was withdrawn in the Committee in another place and was put in on the last day of Committee in another place, and, no doubt through nobody's fault, has not yet received extended discussion. It is commonly believed that Clause 14 of the Bill as it now stands applies to closed shop situations. That is true so far as subsection (2) is concerned, but it is not true of subsection (1), and the purpose of this amendment is to remove sub-section (1), to remove a subsection which
586
would apply across the face of industry without reference to the closed shop.
The new clause relates to the rights of workers which were introduced in 1975 and became Section 23 of the 1978 Act. They relate to a new concept in employment law known as action short of dismissal. They lay down the employee's right not to have action short of dismissal taken against him for certain purposes, such as to prevent him from taking part in trade union activities.
One of the paragraphs in relation to which the employee was not to have such action short of dismissal taken against him and no penalty placed upon him and no deterrent placed upon him by the employer was, in the earlier legislation, related to there being no action to compel him to become a member of a union which is not independent; that is to say, what is sometimes known as a "sweet-heart" union, in the American phrase, or a house union dominated by the employer. There was also in the clause, from the very beginning, the right of a worker who objected on religious grounds to joining any trade union whatsoever, not to have the employer take action short of a dismissal against him to compel him to join a union.
What the Government are going in Clause 14(1) looks a very small amendment, but it is about as small as putting in or taking out a "not". Instead of reading, as the clause does, that the employee shall have the right not to have action short of dismissal taken against him by the employer to compel him to become a member of a union which is not independent, the words "which is not independent" are to go, and so across industry every employee is to have the right under this Bill to have no action short of dismissal taken against him by the employer for the purpose of compelling him to be or become a member of a trade union. It is interesting that the Government do not specify here whether it is independent or not. The concept of action short of dismissal is one of which no definition was placed in the earlier legislation or in this legislation. It therefore covers a very wide range of actions which could be taken by the employer.
In a recent industrial tribunal decision in Liverpool the tribunal tried to cope

587
with the problem of just what kinds of actions are meant by actions short of dismissal. This is made doubly important—perhaps a hundred times more important—now that the section is to be amended if it is in this new form. The tribunal spoke of the very wide meaning of action short of dismissal not limited by definition in the Act and said it certainly includes forms of disciplinary action, suspensions, transfer to less desirable work, demotion; and it now includes omissions, commenting there on previous discussions about the employer failing to do for the worker something which he might otherwise do, which might in many cases be action short of dismissal.
Let us take a normal industrial situation, not one where there is a closed shop but where there is a high degree of unionisation, as there is in the larger and medium-size firms in this country—70 per cent. unionisation. Suppose a worker who is not in the union, with no bad feeling between him and the trade unionists, has a grievance against management. He feels he has been treated unfairly in some matter and takes it up with the works manager or his local personnel manger. Very often in these cases the manager will sensibly say, "Well, if it's to go through the procedure negotiated with the union you'd better discuss it with the shop steward". Sometimes shop stewards do help non-members actually to process grievances, but very often they say, "Well, look, if I'm going to represent you properly, you'd better join the union".
This is a perfectly well accepted and normal way of recruiting members on the shop floor when they have a grievance against management. If the shop steward thinks that it is at least a reasonable one he will say, "I'd do it better if you were part of the union and then I could represent you without any difficulty with the other members, who might make difficulties if you don't join". In the normal case that situation is often resolved whether or not he joins, but under this clause it would be quite different. Suppose the non-unionist says, "I'm not going to join the union. This is all a plot to get me to join the union". Off he goes to the industrial tribunal and says that what the employer is really doing is not allowing him to use the grievance
588
procedure together with the union unless he joins the union.
Then one has a legal case. The question whether the employer has in such a case taken action short of dismissal is one on which I would welcome the noble and learned Lord's advice, if he is to reply. It could be a case that could easily go to appeal, because grievances of this sort might or might not count as action short of dismissal, just as grievances of not being given adequate overtime might count as action short of dismissal.
Let us take, however, a case that might cause rather more notoriety. Let us take a case where there is, again, no closed shop but a high degree of union density and a worker who is on rather bad terms with the local union branch, stemming from the fact that they have always wanted him to join—perhaps he was a member once and has resigned. This is a situation well known to union officials and managers, who often have to work out very sticky situations of this kind. Suppose this man says, "I'm not going to join the union and I'm going to attack it". Very often hot feeling arises and eventually the trade union members, perhaps even against their official's advice, say, "We're not going to work with him any more. We've had enough, and he'll have to go out of the shop".
What happens very often in these cases is that management says to the worker concerned, "Look here, there's a very bad situation. We'll have to suspend you for a bit". Frequently such a worker is suspended. Where such situations arise the solution is frequently found through a period of suspension to allow tempers to cool and to allow a permanent solution acceptable to everyone to be found.
Now that action short of dismissal of this kind is to be extended as the Bill proposes, however, faced with suspension on full pay, for example, the employee who does not like the union says, "I am not having that: I shall lose my night shift bonuses", or "I shall lose my share of the overtime: I am going to the tribunal". He takes the employer to the tribunal, but this time the employer's lawyer will say, "You cannot look at Clause 14(1) in isolation; you must con-

589
sider it in relation to Clause 14(4)", which of course applies if he joins an action, which we discussed in regard to Clause 9, where the employer can join the union. What is more, if he is a good lawyer I think he will say: "If you are going to be sued in the tribunal because you have taken action short of dismissal, to the disadvantage of the worker, and you are going to join the union, you must not stop by just joining the union, because this is a case where the union might say that it had advised the lads not to do it, so you had better join the organiser of the threat to take action if the dissentient was not suspended". Off the case goes into the legal process, which would then acquire headlines and television coverage in a way in which such disputes happily normally do not.
There are such problems in industry to which no doubt all sides contribute but today, happily, in 90 per cent. of the cases they are solved largely by hard work on the part of shop stewards and officials, workers and especially works managers and personnel managers getting round the table and working out a solution. This Bill invites any such complainant to go to the tribunal any time he can say he has been in any way penalised. It is not even a question, as unfair dismissal is, of unfair penalisation, which no doubt would affect the compensation. It is any penalisation with what the tribunal finds on the evidence is the purpose of compelling him to become a member of the union, with the joinder of the union and the joinder perhaps of individuals.
I can think of nothing worse than a clause of this sort to inflame a difficult situation. Not to extend the examples too far, I will only add that of course one then has to consider the case of those who, in such a situation, threaten to form a breakaway group or a breakaway union. Their rights in this connection will become quite different in practice in terms of their relationship to the law.
So the deletion of three words in Section 23(1)(c) of the 1978 Act has, in our submission, very wide-ranging and serious consequences for the likelihood of the number of occasions upon which common or garden workplace problems will be legalised and in a broad sense politicised and given a great deal of attention by the media, which will only
590
make more difficult the job of those who want the wheels of industry to go round. This is the first time that the consequences of Clause 14(1) can be tested in a debate. If ever there was a case where a revising chamber (the matter not having been discussed at length in another place) should ask the Government to take another look at Clause 14(1), this is such a case. I beg to move.
Lord HOUGHTON of SOWERBY: I certainly agree with my noble friend that the Government should take another look at this matter, but I have a few cautionary words to offer to my noble friend on the amendment which he has moved. The origin of the section of the 1976 Act was really the utter dislike by the trade union movement of the non-independent union. As my noble friend explained, it was the evidence of undue pressure being put by employers upon their workers to join house unions that gave rise to the provision in the 1978 Act to safeguard workers from being put under that form of coercion, because that is what we are talking about.
Unfortunately, by taking out the significant words which justified the section of the 1978 Act, namely the words "which is not independent", the Government then leave something on the statute book which was never there before and I doubt whether it is justified now. The section of the 1978 Act was justified in relation to the purpose which it attempted to serve, namely to relieve workers of undue pressure to join house unions. But when that is taken out, one leaves the law in an unsatisfactory condition. If my attention to his words can be relied upon, I do not think my noble friend used the word "compel" in his address.
What we are talking about is the right of the employee not to have action taken by his employer to compel him. A number of the examples given by my noble friend were, as I thought, not instances where the worker was being compelled to join but where he was being persuaded to join. This is the great divide: are we talking about persuasion or are we talking about compulsion?
It is so difficult to distinguish between persuasion and compulsion that one puts the words in an Act of Parliament only if they are really necessary. In my view

591
they were justified in relation to the purpose which the section of the 1978 Act sought to achieve. But once we take out the words "which is not independent", it seems to me that the residual clause is not justified or satisfactory to be left where it is. I believe there is more to be thought about here.
A postscript to what I have just said is that in all these matters relating to human affairs in industry and elsewhere, we need now to be on guard against the use of coercion. I really think that the freedom of the individual, harmonised and reconciled with those with whom he may work, those with whom he may live and have other association, is becoming of prime importance, because, as society becomes more complicated and industry becomes more complex and as freedom is on the way out in so many places, it is important to be on guard against coercion. I am against coercion. I am afraid that if the Government amendment to the section of the 1978 Act stands we shall be left with a clause in a very unsatisfactory condition. On the other hand, it probably would be the best thing to take the clause out of the Bill altogether.
Viscount MASSEREENE and FERRARD: Would the noble Lord apply those sentiments equally to the employer; that he should not be coerced?
Lord HOUGHTON of SOWERBY: I was talking about individual liberty. Usually, the employer is not an individual, he is an institution.
Viscount MASSEREENE and FERRARD: Not always; not by any means.
4.19 p.m.
The LORD ADVOCATE (Lord Mackay of Clashfern: I think perhaps it might be useful if I were to try to set this clause in its place in the general structure of the Bill before I deal specifically with this amendment. Clause 14 is necessary in the general scheme of the Bill on grounds of both logic and practicality. We have already discussed the provisions on unfair dismissal in Clause 6 and joinder of union in dismissal cases in Clause 9 as these affect the closed shop. This clause deals with actions short of dismissal, a matter, as has been pointed out
592
already, which is covered in Sections 23 to 26 of the 1978 Act in respect of actions short of dismissal which have the purpose of compelling a person to join a house union. So it is a provision designed to prevent coercion on an individual to join a house union; that is Section 23 of the 1978 Act. What we are seeking to do here is to make a parallel provision in relation to unions generally, because if coercion is bad—and the noble Lord, Lord Houghton, said that much more eloquently than I can—it is equally bad whether it is applied to forcing a person to join a house union or to join another union. So these sections in the 1978 Act broadly parallel as remedies the provisions of that Act on unfair dismissal.
It is obvious why this should be so. First, it would be strange to adopt different standards in respect of matters like discrimination or promotion or disciplinary treatment from that of dismissal, because that would just be an invitation to the employer not to dismiss but to treat the man so badly that he would want to go in any case. Secondly, if dismissal for certain reasons is made unfair and action short of dismissal for similar reasons is permitted, you have a clear invitation to go round the statutory provisions. Accordingly, it must equally be right to make provision for the situation where unions press the employer to do this. So it makes sense, in our submission, for provisions on actions short of dismissal to follow the same principles as dismissal.
Clause 14 is, therefore, necessary. It complements in this area the changes the Bill makes in dismissal in a closed shop and joinder in cases of pressure to dismiss. Your Lordships have already approved these changes in Clauses 6 and 9, and I would submit that this clause is necessary for the same purpose. If the amendment we are talking about now were agreed to the result would be that Clauses 6 and 9 would be deprived of a great deal of practical effect, for the reason that the union would go for pressing the employer to take action short of dismissal instead of dismissal as the way of treating somebody who was not prepared to join the union. Accordingly, in my submission to your Lordships, this amendment, which of course is a completely wrecking amendment so far as this clause is concerned, should not be agreed to.

593
The noble Lord, Lord Wedderburn, gave a number of examples and invited me to coment on them. I think it is perhaps useful first of all to remind ourselves that the noble Lord, Lord Wedderburn, said hard work, persuasion, getting together of the people involved solved 90 per cent. of the cases at the moment. Very good, if that is so. This provision is ideally suited for dealing with the remaining 10 per cent. that presently co-operation cannot solve. The cases he gave all fall to be settled by the criterion: does the action in question amount to seeking to compel the person to join the union? Certainly so far as the first case is concerned I would think it did not, on the facts as he stated them. I would think very much the same of the second case, if the ill-feeling was generated in some way which was independent of compulsion to join the union. The breakaway case is a little more difficult. I think it would depend on a full account of the circumstances. I doubt whether the noble Lord's example gave sufficient of the circumstances to enable a confident answer to be given. In any event, I would invite your Lordships not to agree to this amendment.
Lord WEDDERBURN of CHARLTON: I am disappointed in one respect, that the noble and learned Lord thought that this was meant to be a wrecking amendment. I should make some remarks to explain to him why, in our view, that is not the case. First, let me agree with my noble friend Lord Houghton that the problem of what amounts to compulsion—and here I agree with the noble and learned Lord the Lord Advocate—is a very difficult matter. I personally think, and I have discussed it with others, that the three examples I gave are at least within the ballpark of argument as possibly amounting to compulsion, increasingly probable as one goes on. When the noble and learned Lord says that because 90 per cent. of the cases are dealt with by voluntary methods now they will continue to be so, I think that discloses a difference of philosophy between his side of the Committee and ours. We
believe that an undue offer, as it were, of legalistic processes will inevitably, like a magnet, draw too many of the cases which are now solved voluntarily into legal argument, just as in a sense, if he wanted to criticise the 1975 legislation, there may have been one or two legalistic procedures that attracted attention there.
With regard to the question of its being a necessary and complementary amendment to the 1978 Act, necessary because it complements in parallel Clauses 6 and 9 of this Bill, which was the noble and learned Lord's main platform, on that I join issue. It has no doubt a certain logic to move Clause 14(2), because that deals with the question of the exemptions in a closed shop situation and the parallel exemptions are being moved there, although we are unhappy about it. But when it comes to saying that Clause 14(1) is the parallel to unfair dismissal, on that I suggest, with respect, he is wrong. This is not a question of unfair or unreasonable action short of dismissal; it is any action short of dismissal with the element of compulsion attached to it. So it is any action for a particular purpose. Unfair dismissal is any dismissal which is unfair.
If the Government wish to bring forward a different subsection, parallel to the unfair dismissal provisions, amending action short of dismissal in this context in relation to unfair action short of dismissal, there would be more logic in the noble and learned Lord's position. But at the moment, with great respect to him, I am unable to agree that it is parallel, and my noble friends and myself, on the basis that we believe that this will give rise to quite unnecessary legal argument and attention, and intervention of legal disputes into an area where voluntarism is the best road to industrial harmony, intend to vote against this subsection by moving our amendment.
4.27 p.m.
On Question, Whether the said amendment (No. 75E) shall be agreed to?
Their Lordships divided: Contents, 68; Not-Contents, 138.

CONTENTS

Ardwick, L.

Boston of Faversham, L.

Burton of Coventry, B.

Aylestone, L.

Bowden, L.

Cledwyn of Penrhos, L.

Balogh, L.

Brockway, L.

Collison, L.

Birk, B.

Brooks of Tremorfa, L.

Cooper of Stockton Heath, L.

Blyton, L.

Bruce of Donington, L.

David, B. [Teller]

Davies of Leek, L.

Leatherland, L.

Sefton of Garston, L.

Donaldson of Kingsbridge, L.

Leonard, L.

Segal, L.

Elwyn-Jones, L.

Listowel, E.

Shinwell, L.

Fisher of Rednal, B.

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

Stewart of Alvechurch, B.

Gaitskell, B.

Stewart of Fulham, L.

Galpern, L.

Lockwood, B.

Stone, L.

Goronwy-Roberts, L.

McCarthy, L.

Strauss, L.

Gosford, E.

Melchett, L.

Taylor of Gryfe, L.

Hale, L.

Milner of Leeds, L.

Taylor of Mansfield, L.

Hatch of Lusby, L.

Mishcon, L.

Underhill, L.

Henderson, L.

Noel-Baker, L.

Wall, L.

Hey cock, L.

Oram, L.

Wallace of Coslany, L.

Houghton of Sowerby, L.

Peart, L.

Wedderburn of Charlton, L.

Howie of Troon, L.

Phillips, B.

Wells-Pestell, L.

Jacques, L.

Pitt of Hampstead, L.

Whaddon, L.

Janner, L.

Ritchie-Calder, L.

White, B.

Kaldor, L.

Ross of Marnock, L.

Wootton of Abinger, B.

Kilbracken, L.

Sainsbury, L.

Wynne-Jones, L.

NOT-CONTENTS

Airedale, L.

Faithfull, B.

Mottistone, L.

Airey of Abingdon, B.

Ferrers, E.

Mowbray and Stourton, L.

Alexander of Tunis, E.

Ferrier, L.

Newall, L.

Amherst, E.

Fortescue, E.

Norfolk, D.

Amherst of Hackney, L.

Fraser of Kilmorack, L.

Nugent of Guildford, L.

Amory, V.

Gladwyn, L.

Nunburnholme, L.

Ampthill, L.

Glenarthur, L.

Onslow, E.

Auckland, L.

Gowrie, E.

Orkney, E.

Balerno, L.

Gridley, L.

Orr-Ewing, L.

Banks, L.

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

Piercy, L.

Barnby, L.

Porritt, L.

Beaumont of Whitley, L.

Halsbury, E.

Rawlinson of Ewell, L.

Bellwin, L.

Harvington, L.

Reigate, L.

Belstead, L.

Hatherton, L.

Renton, L.

Berkeley, B.

Hawke, L.

Richardson, L.

Bessborough, E.

Henley, L.

Ridley, V.

Bourne, L.

Hives, L.

Robbins, L.

Boyd-Carpenter, L.

Home of the Hirsel, L.

Roberthall, L.

Brentford, V.

Hood, V.

Rochdale, V.

Brookeborough, V.

Hornsby-Smith, B.

Rochester, L.

Byers, L.

Hylton-Foster, B.

Romney, E.

Caccia, L.

Ilchester, E.

St. Aldwyn, E.

Caithness, E.

James of Rusholme, L.

Saint Oswald, L.

Campbell of Croy, L.

Kemsley, V.

Salisbury, M.

Cathcart, E.

Kilmarnock, L.

Sandford, L.

Chesham, L.

Kimberley, E.

Sandys, L. [Teller.]

Clancarty, E.

Kinloss, Ly.

Savile, L.

Clwyd, L.

Kinnoull, E.

Seear, B.

Cockfield, L.

Long, V.

Selkirk, E.

Cornwallis, L.

Lovat, L.

Simon, V.

Craigavon, V.

Lucas of Chilworth, L.

Skelmersdale, L.

Croft, L.

Luke, L.

Soames, L. (L. President.)

Cullen of Ashbourne, L.

Lyell, L. [Teller.]

Spens, L.

Davidson, V.

MacAndrew, L.

Stamp, L.

De Freyne, L.

McFadzean, L.

Teviot, L.

De La Warr, E.

Mackay of Clashfern, L.

Torphichen, L.

Denham, L.

Macleod of Borve, B.

Trefgarne, L.

Derwent, L.

McNair, L.

Trenchard, V.

Drumalbyn, L.

Mancroft, L.

Vickers, B.

Dundee, E.

Mansfield, E.

Vivian, L.

Ebbisham, L.

Margadale, L.

Wakefield of Kendal, L.

Ellenborough, L.

Marley, L.

Ward of Witley, V.

Elliot of Harwood, B.

Massereene and Ferrard, V.

Westbury, L.

Elphinstone, L.

Milverton, L.

Wigoder, L.

Emmet of Amberley, B.

Monson, L.

Wise, L.

Evans of Hungershall, L.

Morris, L.

Young, B.

Fairfax of Cameron, L.

On Question, amendment agreed to.

[Amendment No. 75F not moved.]
The DEPUTY CHAIRMAN of COMMITTEES (Lord Derwent): Amendment No. 75G. I must point out that if this amendment is agreed to I shall not be able to call Amendments Nos. 76,76A, 77 or 77A.
4.37 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 75G:
Page 16, leave out lines 15 to 28.
The noble Lord said: I beg to move Amendment No. 75G. I think that the noble Earl has very little fear that the subsequent amendments will not be called, but I wish on behalf of my noble friends and myself to take the opportunity of presenting again some arguments against the second part of the clause.
We have concentrated on the ballot and I do not wish to repeat the arguments which took place across the Committee concerning the nature of the validation of new union membership agreements by ballot requiring an 80 per cent. majority of the electorate, which we had as regards the previous clause. I wish, simply for the record, to state that naturally we have parallel objections here, just as the noble and learned Lord the Lord Advocate has already pointed out to me that the Government have parallel wishes here.
We want to say to the Government that the extension into the area of action, short of dismissal, might have consequences even worse than those which we put forward as the undesirable consequences for new union membership agreements in the previous clause, Clause 6.
It is worth remembering that we are talking about union membership agreements—agreements between management and specified trade unions. We reached a measure of agreement, in a sense, in previous debates on earlier clauses, because I noted that the Government Benches and ourselves were united on one point; namely, that the closed shop practice or union membership arrangements are a fact of life in British industry and it would be very stupid and foolish to attempt to legislate them away. In a sense, it is an extension of that point that causes us grave concern about the extension of the ballot arrangements for validating new union membership arrange-
598
ments, not only in respect of unfair dismissals, but even in respect of any action short of dismissal, of the kind covered by this clause, which involves compulsion to join a trade union.
Without wishing to reopen the argument with the noble and learned Lord, I again say that the word "compulsion"—as the Government found in arguing before the European Commission of Human Rights—is a very difficult word indeed to tie down in any legal sense. But by demanding that new union membership arrangements should go through the process of a ballot, which in our view will make union membership arrangements almost impossible to create in the future—an 80 per cent. majority of the electorate is needed—what, in fact, will happen? Here I relate very closely to the remarks made on the previous amendment by my noble friend Lord Houghton of Sowerby. Faced with a clause of this sort added to the 1978 legislation, what is management and the union likely to do in the real world? Whether or not one approves of this is, in a sense, beside the point for the purposes of discussion of this clause, because one is entitled to ask what will actually happen, what will be the consequences of what the Government are putting on the statute book?
What will happen when management thinks: "We have a very good relationship with our union; we have always had good industrial relations; we do not actually have a union membership arrangement or agreement, but it is obvious that we are moving towards one and it would probably be sensible to get, as it were, a price from the union for such an arrangement", as management usually does end up with such an agreement?
What is likely to happen in that very common situation is that management will tighten up on its screening procedures in the recruitment of workers. That is not a party point and I say this as someone—as many noble Lords may well be—who is afraid of the future in terms of the amount of information which will be known about each of us and each of the citizens of this country in the computer banks that will exist and the terminals into which various agencies and persons will be able to plug. If we look ahead five years and think of the employer (perhaps the unions too which might make it

599
worse) plugging into the computer bank to find out whether Smith, before he is engaged, is likely to vote against the ballot and ruin the 80 per cent. majority of the electorate, it seems to me that that is an undesirable future to encourage by legislation.
Indeed, it is caused by another fundamental problem with the Bill before us; that is, that the Government never do anything to disturb the untrammelled right and the prerogative of management to hire or not to hire whom they want. The union is to be controlled as to who is to be admitted and expelled, and it is true that in a union membership arrangement unfair dismissals are covered. Action short of dismissal is covered, but only where it relates in particular to trade union activities or to compulsion to join a union.
As regards the right of management to say, "You cannot have a job", that has never been within the Government's purview as something that ought to be controlled by law at all. I note that the Government Front Bench agree; perhaps I could put it to them that at some point they might reflect whether it would not appear odd to working people that everything else has to be controlled, including their organisations, but that no further trammel be put upon the right and prerogative of management.
The Earl of GOWRIE: I am most grateful to the noble Lord for giving way. I do not think that any such suggestion was part of the last Government's legislation. I do not think that that has ever been mooted.
Lord WEDDERBURN of CHARLTON: The logic of the last Government's legislation was such that the argument for it was not as strong as it will be under the Bill. It has certainly been mooted. If the noble Earl has not heard the argument that where there are controls over trade union rights to admit and expel, there should be controls over an employer's right to expel from and admit to employment, I suggest that he extends his audience a little. I think he will find that that argument is very common among workers in British industry. But that is an aspect of the possible consequences of this clause.
600
What I am saying, and what my noble friends are saying, is that to operate this kind of ballot arrangement in a situation where a perfectly sensible and orderly union membership arrangement might well be the desire of management and union, would not cause a great difficulty, where even those who would have voted against the ballot might well be taken on and in various ways accommodated. Because, of course, the latest research in respect of union membership arrangements carried out for the Department of Employment itself—and I am sure that the noble Earl has looked at these surveys by Mr. Gennard and his colleagues—show that virtually all new union membership arrangements make certain exemptions for existing employees and for others.
But when this kind of process is introduced—the desire for the ballot, the fear of management that perhaps the orderly arrangement will be disturbed by getting a 79·99 per cent. vote of the electorate instead of 80 per cent.—the screening procedures are bound to be stepped up. I cannot believe that that is the intention or the wish of the Government. But it is one of the reasons. Other reasons will be developed by my noble friend Lord McCarthy in relation to the clause as a whole. But it seemed right to us to draw attention to this one particular matter in relation to the ballot and the undesirable consequences industrially which the Bill will have.
Lord MACKAY of CLASHFERN: The 1978 Act recognises there might be a possible conflict between an individual's right to organise and participate in the union of his choice and the stability of existing collective bargaining arrangements. The compromise currently is that rights to use the employer's premises are limited, where there is union membership agreement, to activity on behalf of unions covered in that agreement. The Government intend that after the Bill is enacted union membership agreements should be introduced only after the ballot, to which we have already referred. The Government cannot accept that any other new union membership agreement should be used as a justification for limiting the rights of members of non-specified unions.
This would be incompatible with the other closed-shop provisions of the Bill

601
and unacceptable because such restrictions on rights can be justified only if the agreement is demonstrably introduced with the overwhelming support of those to be affected. In moving his amendment, the noble Lord dealt with rather more general matters—not themselves, I think, the subject of this amendment. I would invite the Committee to reject the amendment.
Lord WEDDERBURN of CHARLTON: The noble and learned Lord pursues the legal logic, which I follow, under the Bill. He did not pursue the practical consequences which we believe arise in particular from the very lines which we suggest should be deleted. We shall not divide on the issue, but we shall not withdraw the amendment.
On Question, amendment negatived.
4.47 p.m.
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 76:
Page 16, line 20, leave out ("either").
The noble and learned Lord said: It might be convenient if I seek to explain both Amendments Nos. 76 and 77 together. The sections of the Bill which these amendments delete were inserted in the Bill by part of a group of amendments tabled by the Government at the Report stage in another place. The amendments were intended to be withdrawn, but were moved formally in error and they now stand part of the Bill. These amendments merely correct that error.
The intention which the Government had in tabling the amendments to the Bill, which are removed by the present amendments, was to cater for the technical possibility of the ballot provisions of the Bill causing difficulties for the very small number of employers who might seek to enter a long-standing industry-wide closed shop. However, on re-examination the Government concluded that there was not a real problem here, and it was intended that the amendments should be withdrawn. I hope that your Lordships will see your way to agree with that. I beg to move.
Lord WEDDERBURN of CHARLTON: I am obliged to the noble and earned Lord for that explanation and,
602
of course, in view of the Government's amendments we shall not be moving Amendments Nos. 76A and 77A. Our intention in moving those amendments was to find out what on earth was meant by this new provision which was included by the Government on Report in another place. My noble friend and I spent many hours—we do not complain of this—trying to think what on earth they were about. I now find that the whole thing was a mistake. I am delighted in a sense to find out that they were moved formally in error because they must no doubt also have been drafted in error.
My noble friend and I found it difficult to see what they meant except for the possible case of, as the noble and learned Lord suggested, an employer joining an industry-wide closed shop made by an employers' association at some date later than when it was originally made. We went through the books; we talked to people; we asked people: is there such a case possible? We could not find one. But I see that the Government were trying to provide for something that is so far outside the range of probability that they now want to withdraw it. We understand a little more about what it means, and we are delighted to support for once an amendment from the Government Front Bench.
[Amendment No. 76A not moved.]
Lord MACKAY of CLASHFERN Lord MACKAY of CLASHFERN moved Amendment No. 77:
Page 16, line 23, leave out from ("58A") to end of line 28.
[Amendment No. 77A not moved.]
4.51 p.m.
On Question, Whether Clause 14, as amended, shall stand part of the Bill?
Lord McCARTHY: We wish to oppose this clause. The Government have said that the aim of this clause is, as it were, to stretch a kind of penumbra around the area of the closed shop so as to say that if closed shops are only to be related to the carefully defined union membership agreements so far as dismissal is concerned,

603
similar kinds of constriction must be existing for action short of dismissal. The noble Lord, Lord Wedderburn, has said why it is that we find that that is not a plausible argument, and we have tried to put forward to the Committee a number of amendments to modify the impact of the clause, in so far as it affects closed shop areas.
But, of course, as the noble Lord, Lord Wedderburn, stressed, the first subsection of the clause stretches way beyond the closed shop area—and that really is the central reason why we must oppose this clause—and in fact attempts to sweep up all areas where trade unions might organise, and might have members, whether or not there might be closed shops, or quasi closed shops, or union membership agreements, or anything of that kind. Therefore, I rise not simply because our amendments dealing with the closed shop area have not found acceptance by the Government today, but because I should like to return mainly to the question of subsection (1) of this clause. These are the main reasons why we feel that we must make this opposition to the clause known at this time.
The noble Lord, Lord Wedderburn, has spelled out a number of areas where we think this will affect trade union recruitment and industrial relations. We have been told by the Government that it may not do so. We have been given in effect the same kind of arguments as those we were given the last time we debated the Committee stage of the Bill—that the industrial tribunals in effect would not decide things of that kind. They would be too silly for them to decide, but some of the examples given represented compulsion.
We answer to this that we are not convinced. The fact is that in industry shop stewards, particularly when firms are relatively well organised, particularly large firms, take on a whole range of jobs which it is common now to call their helper functions. They help in the allocation of overtime in most firms where shop stewards are at all well developed. They help in the allocation of rotas in the difficult problem of gaining consent for the workforce for the distribution of work. They help in agreeing manning scales
604
They help in respect of the introduction of new processes. They even gain consent for majority decisions in wage issues, for example, piece work prices, and in all those areas understandably their work is confined to trade unionists. It does not include non-unionists.
It is not really humanly possible to ask shop stewards, who belong to unions, work for unions and are supported by unions, to take non-unionists into account when they carry out their helper functions. Therefore, these people will, in a sense, be discriminated against. These people, in a sense, are left out of the democratic process. These people, in a sense, will have a case if they come along and say that they are compelled to accept the consequences of the exclusive brethren of trade unionism carrying out the helper functions of shop stewards. We are worried about this kind of position, which is extremely widespread in British industry, if it comes before an industrial tribunal.
It is also universally the case that shop stewards and trade union representatives will not handle the individual grievances of non-unionists. Once again I say to noble Lords it is not humanly possible to ask shop stewards to spend their time looking after the particular individual grievances of non-unionists. No employer with experience of industrial relations would expect them to do anything of the kind. He would say, if an individual non-unionist wants a grievance remedied, that he would do his best to remedy that grievance at his level, but if the individual non-unionist wishes to follow what is basically a trade union collective agreement procedure, he would say, quite openly, "That is confined to trade unionists".
That is one of the routine ways in which people have an incentive to join trade unions. Far more people join trade unions in open shop situations because they have an individual grievance which they cannot process into the upper echelons of the procedure unless they join the union, than ever join the union by coercive closed shop arrangements. We say again that we are not certain where these exclusion practices would be under the terms of the first subsection of this clause.
But there are all kinds of other practices. Trade unions enter into joint pension

605
arrangements in which the trade unions make a contribution and the employers make a contribution. The employer makes a good deal more of a contribution, I should say, than the trade unions do. But the benefits are confined to trade union members. Again, we are not certain what will be said about this. It is certainly discrimination; it is certainly used very often to put some pressure on people to join trade unions. The question is whether this is inside or outside what is allowed under the clauses of this Bill.
Finally—and I could give your Lordships many more examples—there is in the steel industry, in the textile industry, what is known as the promotion veto shop, where it is quite impossible for anybody to get promoted from third hand to second hand, or second hand to first hand, and so on, unless he is fully in compliance with his union card. If he is one or two weeks in arrears his promotion is passed over. It is just impossible to break practices of that kind, and we are doubtful whether or not practices of that kind would be said to be unlawful under the terms of this clause. Therefore, we say that this kind of discrimination, which is part of the very stuff of industrial relations —frankly, I doubt whether the Government have thought it through or knew that the facets all existed—is nevertheless placed at risk by this clause and we must oppose it.
4.59 p.m.
Lord MACKAY of CLASHFERN: I think that we have discussed in principle most of what the noble Lord has said in this part of his argument. He has given a number of examples, but I should have thought that action short of dismissal is not the most important part to give attention to. It is action short of dismissal for the purpose of compelling a person to join the union. Really those who oppose this clause are standing up for compulsion in this situation, because the noble Lord, Lord Wedderburn, has explained to us that, even with the best will in the world, you get a number of cases of people who are subject to this 10 per cent. (I think he said) not capable of being dealt with under the present arrangements. If this clause goes, no help is given in these cases at all. I invite your Lordships to agree that this clause should stand part of the Bill.
Lord WEDDERBURN of CHARLTON: Before the noble and learned Lord sits down, may I tell him that the 10 per cent. to which I referred represented 10 per cent. of cases which were not easily solved by voluntary methods? As a lawyer, he must accept that among the examples of the common, everyday practices in industry which my noble friend gave—I put aside my own and let us also leave aside the industrial tribunal and take the Court of Session or Court of Appeal, whichever he wishes to choose—it is not unlikely or impossible that many of those situations would, to the judicial mind in the aura of the courtroom, where industrial reality is sometimes not easy to introduce, appear to be forms of compulsion. The word "compulsion" does not involve putting somebody in shackles.
Lord MACKAY of CLASHFERN: I have no reason to believe that the judges in the Court of Appeal or the Court of Session are not capable of understanding the realities of industrial relations, especially when they are eloquently explained to them on both sides of any case by people who are very familiar with them. I believe the judges are capable of recognising compulsion when they see it, and of course I perfectly understand that one does not need to put people in shackles to have effective compulsion. The judges are perfectly capable of recognising compulsion, and it is against compulsion that this clause stands.
The LORD CHANCELLOR (Lord Hailsham of Saint Marylebone): I would say on behalf of the English judges, since my noble and learned friend belongs to a different jurisdiction, that the words in Section 23 of the Consolidation Act depend upon a purpose, and English judges as a whole understand the meaning of the word "purpose" in the English language.
Clause 14, as amended, agreed to.
Clause 15 [Picketing]:
5.2 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 77B:
Page 17, line 26, after ("work") insert—
("or a place of work either of other workers who are members of the same trade union or who are parties to the trade dispute, or

607
occupied or used by any person who is giving or is likely to give aid or support to an employer party to the trade dispute by way of trade or business relationships").
The noble Lord said: I will, with permission, discuss at the same time Amendment No. 77E. This brings us on to the famous Clause 15 on picketing. The object, as I understand it, of the Government's proposals on picketing is to reduce picketing to what is now rapidly coming to be called "on site picketing", but in addition—and this aspect of the clause has not had sufficient publicity—it is to restrict the role of shop stewards and trade union officials in respect of their job on the picket line. We shall be arguing subsequently on later amendments that we consider that the provisions of the clause in relation to the activities of shop stewards and officials on the picket line are possibly just as dangerous and unjustified as the other aspects of the clause.
Before coming to the precise details of what we are proposing in these amendments, let me say that we are not coming before the Committee today in any way justifying everything that happens on picket lines. We are not here justifying violence, intimidation, watching and besetting and many activities which occurred in the famous winter of discontent in a minority of instances under the overall umbrella of mass picketing. Our position is that they are all against the law already and are best left to the ordinary operations of the police, and we would cite in support of that—I do not want to quote from them because they were quoted on Second Reading by my noble friend Lord Wedderburn of Charlton—the very interesting evidence of chief constables on the legal immunities of trade unions to the House of Commons Employment Committee which, I would say, broadly supported that point of view. Nevertheless, we think it worthwhile, within the general opposition we have to the provisions of Clause 15, which we shall be picking up during the afternoon, to try to make a number of changes which perhaps might make it a little less disruptive in operation, and this is one of those changes.
In Amendment No. 77B we are trying to widen slightly those who have the right
608
to picket as affected by the Bill to include, as we say:
"or a place of work either of other workers who are members of the same trade union or who are parties to the trade dispute, or occupied or used by any person who is giving or is likely to give aid or support to an employer party to the trade dispute by way of trade or business relationships".
In Amendment No. 77E we are trying to do something similar by saying:
"or place of work either of other workers who are members of the same trade union or who are parties to the trade dispute, or occupied or used by any person who is giving or is likely to give aid or support to an employer party to the trade dispute whether by way of trade or business relationship".
As I say, these two amendments are designed to widen somewhat the right to picket as affected by the Bill. It would, therefore, still be lawful, say, to help out on the picket line other members of your own union; it would still be lawful, say, to help out other trade unionists involved in the dispute with you in a common trade dispute, whether or not they were involved in one at your place of work; and it would still be lawful to influence other workers whose employer was helping your employer, say, by carrying out his contracts.
In very broad terms, what we are trying to do is to distinguish between those who might be thought to have legitimate traditional loyalties to those in the dispute who might be said to be justified by the ancient trade union principle of borrowed strength, from those who might be thought to have no relationship to the dispute; groups who might, say, be brought in by others who have no direct interest in the dispute, sometimes described—more by noble Lords opposite than by noble Lords on this side—as mindless militants, King Street irregulars or Rent-a-crowd.
We are saying that if one wishes to narrow the area of picketing, the most feasible way to narrow it is to try to run to some extent with the traditional bases of strength, taking in people involved in the trade dispute—taking in members of the same union; and taking in those whose employers are helping your employer—and distinguishing them from other people. In broad terms—and I should say that I have no authority on their behalf to say this, but it strikes me as being in some way relevant—the sort of line we are trying to draw here is not all that different from the kind of line the TUC sought to draw in

609
their Guide to Picketing, because in section 9 of the guide the TUC say:
"Unions should in general, and save in exceptional circumstances, confine picketing to the premises of the party to the dispute, or the premises and suppliers of customers of those patties".
They go on to say:
"The effect of a large body of trade unionists outside a workplace demonstrates the depth of feeling that exists among strikers and also may constitute an effective appeal for solidarity. However, the police may regard a large body of workers as obstructing entry to the premises or as intimidation towards those who wish to enter. Trade unions need to be aware that it can sometimes be difficult to control a large group of pickets".
We are saying it is possible, if the Government are hell bent on this procedure, to find a way of limiting the mass picket to those who feel they have a legitimate loyalty to those involved in the picket; but it cannot be done as the clause is drafted and it might be attempted by the use of our amendments. I beg to move.
5.10 p.m.
Lord MOTTISTONE: The noble Lord, Lord McCarthy, phrased his case very delicately and tried plausibly to impress us. He spoke about "widening slightly" and then "widening somewhat", which was getting nearer the case. I would say that he is driving a great big hole through the entire clause, and that is obviously his intention. In fact, he is endeavouring to turn upside down its entire purpose, and I believe that we need to read his speech in that light.
Earl DE LA WARR: I wish to support my noble friend, who referred to the extraordinary use of the adverb "slightly". My noble friend dealt with the point adequately, but I ask your Lordships' Commitee to consider what would happen if one of the mass membership unions, a union with a membership of seven figures, were involved in a matter of this kind. God bless my soul! it could be the secondary picketing of all time.
Furthermore, the noble Lord, as I understood him, adduced in aid the guidelines that were produced by the TUC. From what the TUC said, I did not detect that they were advising their members to make use of their strength to the point that the whole union could go and lend support, which was what I understood the noble Lord to be implying—
Lord McCARTHY: Not at all.
Earl DE LA WARR: Well, no doubt the noble Lord will tell me why not. I found what he said to be an extraordinary and novel doctrine on two counts: first, in regard to the use of the word "slightly"; and, secondly, by the praying in aid of the advice that the TUC gave their members.
Lord McCARTHY: If the noble Earl will allow me to intervene, I should like to say that I do not want to upset him unduly. I was trying to say that it is in fact impractical, and I would add unjustifiable, to tell a member of a union, perhaps a man with 20 or 30 years' membership, that the law prevents him from going to the aid of other members of his union. That seems to me to be both unjustifiable and quite impractical. It does not mean to say that because the law permits him to go to the aid of other members that the entire 2 million members of the Transport and General Workers' Union will turn up at every picket. The fact is that sometimes it is extremely difficult to get anyone to picket. Picketing is not all that popular, nor all that easy. I am suggesting that it is impossible to stop some members—perhaps half a dozen—of a union going to the aid of other members of the union. The law should limit itself to what is possible.
Earl DE LA WARR: I take the point, but that is not what the noble Lord's amendment says. The amendment permits as many as there are in the union to go in aid. The noble Lord has told us that he wants to widen things "slightly". Had the amendment been true to the description he has given, it would have been quite a different matter, but the amendment is not worded in the way that the noble Lord has put the matter.
Lord McCARTHY: I do not want to help the Government, but the Government's Bill would allow every single member of British Leyland in Oxford to turn up on a picket line in Oxford. That would be the mass picket of the year.
Baroness BURTON of COVENTRY: I find myself in some considerable difficulty and I have been somewhat dreading our reaching the picketing provisions of the Bill, because I am not in agreement

611
with my noble friends in their attitude towards picketing. Despite my noble friend Lord McCarthy—for whom I have much regard—having been so reasonable, I really and truly believe that, however much expertise people may have, there are things more important than expertise. I should have been very nervous about rising had I not felt so strongly on this matter, but I believe that the feeling of the general public is more important than expertise.
I know that many of my noble friends agree with me, but have decided not to come to the Committee today. There are times when one must come and say what one feels, even if one gets into trouble for doing so. I feel very strongly about this matter. I recall one of the learned Clerks at the Table—not the one sitting there at the moment—saying to me, when I made a remark of that kind, "Well, you don't come to the House of Lords to be popular." I have always tried to remember that.
I should like to return to the matter in question and speak on it in general terms. I strongly believe that the general public of this country want action taken to curb picketing. Of that I have not the slightest doubt. I believe that this applies also in all political parties as well as among people who are not particularly interested in politics. In the light of the winter of discontent, or the winter of 1978, whichever Government won the last election would have had to do something about picketing. I do not think there is the slightest doubt about that. I must say that personally I support the step by step approach of the party opposite on this matter.
It seems to me that the majority of ordinary trade unionists—and I sat for a trade union constituency back in the 'fifties —are not in agreement with mass picketing or with the holding of meetings where decisions are taken by a show of hands, which causes intimidation. We have all seen that the show of hands, as added up by those doing the counting, does not always seem to be substantiated in terms of the actual numbers of those voting.
I should have liked my side of the Committee, or my colleagues in another place, to have been more constructive on
612
this matter of picketing. If my two noble —and, with due apologies to the noble and learned Lord, Lord Hailsham of Saint Marylebone, I should like to add—learned friends on the Front Bench were to say that what the Government are proposing to do by means of the Bill will not cure the problem, I am sure that with the mass of papers that they have they would be able to prove their case. But I do not think that they would prove it to the general satisfaction of people in the country.
My noble friend Lord McCarthy said that those actions of the pickets which were most resented were carried out by a minority. That I accept, but one cannot call it a minority when there are bus loads totalling 10,000 brought in to stand outside a factory. I would think it to be a pretty large minority.
We have seen pickets on television, and it is no use saying that television seeks out the worst elements of picketing. I am afraid that picketing is news. When I saw on television pictures of the picketing at, say, Grunwick, or in the steel dispute I was terrified. I do not know what ordinary people actually looking on would have felt. I do not know how many policemen were employed at the Grunwick dispute—I have in my notes here a figure of 5,000 policemen—to keep the peace. It seems to me that things have reached a pretty pass when we come to that state.
If one can place any reliance on opinion polls—I suppose one chooses the polls that prove one's case—it seems that recently they have shown that trade unionists, and not only the public at large, really want something done about picketing. I do not think that there is the slightest doubt about this. I believe that if my party were to go to the country on the basis of taking no action on picketing, or of being against the Government in what they propose to do about picketing, there would be a landslide against them, because I do not think that that is the feeling of the public.
I should like to say before I sit down—I have probably said far too much already —that I do not believe that violence or intimidation are part of the British way of life; I really and truly do not. What is more, I think that they are contrary to

613
public opinion in this country. The guidelines put forward by Mr. Len Murray and the TUC (and referred to by my noble friend Lord McCarthy) were excellent guidelines, but what distressed me so much were pictures on television of pickets who had not seen the guideline, or who had not heard of them, or who laughed at them. I have felt very strongly that in regard to picketing the union leaders have not been able to deliver the goods. I say with great regret that I shall not be able to support my noble friends on any of the matters relating to picketing.
Lord BOYD-CARPENTER: I hope that the noble Lord, Lord McCarthy, will feel able to reply to the very serious argument which has just been addressed to him, from behind him, because I think he will find that in most sections of the Committee there is much sympathy for the view so characteristically courageously expressed by the noble Baroness.
I want to ask the noble Lord whether he will confirm what seems to me to be the quite extraordinarily possible, but no doubt intended, effect of his amendment. As my noble friend has pointed out, the amendment was presented to us as "slightly" extending the permitted scope of picketing. But am I right in reading the noble Lord's amendment as, if adopted, making lawful, where there is a dispute at, say, one plant, attendance by way of picket of any member of any of the great major unions that may be involved? Is that really the intended effect? If it is—and the noble Lord seems to nod—then, frankly, his introduction of it as "a slight extension" is really quite extraordinary unless, indeed, he was intending to pull the leg of the Committee, which is perhaps the most charitable view of it. But if that is so, I really would ask him to think again.
The lawful and proper purpose of picketing—and it is, indeed, re-enacted in the clause—is to communicate information or peacefully to persuade. That, historically, is the purpose of picketing; and it makes a nonsense of that if you arrange for hundreds or, as we saw last winter, thousands of people to attend at the same time and place. Because so far from facilitating peaceful persuasion, it at least suggests intimidation—numbers can do so—and, so far from helping to
614
communicate information, it makes it impossible. Whereas it would be perfectly possible for one, two or three men to communicate information to the noble Lord, if I were to assemble 2,000 people simultaneously to address him it would really be extraordinarily difficult, technically, to communicate any information to him at all.
My noble friend must recognise, as the noble Baroness does, that if there is one thing which has done damage to the trade union movement in this country it has been these immense mass picketings, with every indication behind them of intimidation: pickets which it was very difficult for anybody, except somebody of exceptional courage, to face in exercise of their right to pass through on their way to work. If there is anything which has damaged the trade union movement in the eyes of people in the country it has been that; and I say to my noble friend in all seriousness that if he wishes to serve the good name, the reputation and the standing of the trade union movement, he really will not press an amendment of this sort, which would legalise that very action which any good friend of the trade union movement would wish to see prohibited.
Lord WEDDERBURN of CHARLTON: Before the noble Lord sits down may I address a question to him? I do not wish him to understand my question to mean that incidents of the kind that he suggests do not take place on the picket line, but I want to ask him whether he has read the evidence given by the chief constables of five major areas of Britain to the Select Committee of another place. That evidence included the evidence of the Chief Constables of South Wales and South Yorkshire, both of whom described the situation, even where you had very large numbers of pickets, as "normally peaceful". To use the words of the Chief Constable of South Wales, they come "out of comradeship and solidarity", and, except in a few cases which do exist but which are very much in the minority, they do not represent the type of intimidation which the noble Lord has described. Has the noble Lord read that evidence?
Lord BOYD-CARPENTER: As the noble Lord is good enough to ask me the question, let me say that I have read it,

615
and I read it with great interest. Having read it, I can tell him that the chief constables make it clear, first of all, that there have been, as he himself admits, incidents of an intimidatory nature; and, secondly (and he really has not faced this point), that the mere assemblage of numbers, even though the invididuals concerned behave themselves decorously, can intimidate—and I challenge him to dispute that.
Lord HOUGHTON of SOWERBY: I feel that your Lordships ought to leave the other House to take full responsibility for what is being done in this Bill, particularly in this clause. I do not think it is our job to revoke or to repudiate what the elected Chamber has done in this delicate field of human relationships in industry. Because—and do not let us shirk this—we are now getting very close to the unacceptable face of trade unionism. This is a very delicate subject on these Benches, and it is one which troubles the public greatly. I think that we shall not be doing our duty if, in a debate of this kind, we do not say quite frankly from these Benches, as well as from elsewhere in this Committee, what we feel. My noble friend Lady Burton has undoubtedly said what a great many people in the trade union movement are thinking, and what a great number of people throughout the country have been thinking for a long time about the use made of picketing in the course of industrial disputes.
It is a great pity that we are having to spend so much time in Parliament on these matters of disputes and on how to deal with them, on the consequences of strike action and on the mode of conducting strike action. This is a great pity. Would that we could be devoting that time to the constructive side of building up mutual confidence and fruitful relationships between workers and management which would minimise the occasions upon which disputes of this kind arise! My fear is that in many cases the strike weapon has become the negotiation of the first instance, and that is to be deplored. In many cases strike action is taken far too quickly after differences of opinion arise. I am greatly bothered about this—greatly bothered—but I do not think that the role of your Lordships' Committee is to savage what has been approved by another place. I
616
think we have to recognise the limitations of our role in the legislative process.
My noble friend Lord McCarthy, for whom I have great affection, introduced this amendment in tones of a peaceful, agreeable man. He said, "Of course, we are not coming here this afternoon justifying all that has happened in past disputes; many of the things that have happened are unlawful at present". But it is not enough to say that we do not justify some of these things. We ought to be saying that we condemn them, because they are doing great harm, I think, to relationships within the party, within the trade union movement and in society generally.
Another phrase which my noble friend used was that this amendment, he said, would permit members of a union in one place to go and "help out"—those were the words he used, "help out"—members of their own union on strike at another place of work. Those words "help out" may mean 500 workers going from one place of work to another place of work in order to man the picket lines, and some disgraceful scenes have been witnessed on the picket lines in disputes in the last several years. I sometimes think that actions make a mockery of the traditional words in the trade union law on this subject, right from 1906—"peacefully obtaining or communicating information", or "peacefully persuading any person to work or to abstain from working". The word is "peacefully". What we have seen has not been peaceful persuasion; it has been sheer intimidation —there is no doubt about that. A mass of people on a picket line is itself a formidable form of intimidation.
When there was a Civil Service strike not far from where I live, picket lines were mounted and girls trying to go to work had to pass through a channel—not a picket line but picket lines; they had to pass through a channel—to the door of their office, and as they walked there they had catcalls all the way to the door. Is that peaceful persuasion? How does one feel, passing along a picket line by which you are made to feel lower than vermin? That is not peaceful persuasion; and I think we have to be very careful indeed when drawing the line beyond which action which may lead to manifestations of such an undesirable character may not

617
take place. I think that this amendment goes too wide. It says:
"or a place of work either of other workers who are members of the same trade union or who are parties to the trade dispute, or occupied or used by any person who is giving or is likely to give aid or support to an employer party to the trade dispute by way of trade or business relationships".
That is the wide, wide world, it seems to me. I cannot really feel that we on these Benches should be attempting to put into this Bill an amendment of this kind. I think that Parliament, the elected Parliament, must take responsibility. All that we can offer is such wisdom as maturity bestows upon us and such experience as we have. My instincts lead me to feel that the problem of picketing is possibly insoluble by law. Attempts to repair deficiencies in the law sometimes may lead to further complexities, but I think that one must make the best job that one can of the law, if the law is the only remedy.
I wish that we had the possibility of getting a firm agreement among the trade unions as to how people should conduct themselves. That would be the best solution. I aim time and again to try to get it. What this clause provides for is the financial penalties—not to be convicted of a crime that is unlawful, actionable. The individuals are actionable, but we all know of the problems of taking action against individuals in the mass and of recovering damages awarded against them in the mass—when they will probably go out on to the streets, march to court with a brass band in front of them, all have damages awarded against them and then they will form in column of route outside the court and march back to the square with a brass band and mightily and loudly say, "We ain't gonna pay." And then what? That is the problem.
We do not, I think, deal with this matter by extending the area of mischief. If we can limit it, then all the better. What I hope will happen as a result of this Bill, however reluctant the trade union movement may be to come to terms with reality, is that I hope that they will recognise that they have a public case to answer on picketing and that they will satisfy public anxieties on this very grievous question. Then it is our job, I think, as a Parliament and as the public to try to get rid of this divisive force which
618
splits the nation—the two sides of industry, the two sides of the House, the two sides of everything—in adversarial politics and in correspondence which is putting us so far behind those countries that long ago were able to find the reconciliation in politics and the harmony in industry which is enabling them to forge ahead of this country in almost everything they do.
5.34 p.m.
The Earl of GOWRIE: I have here quite a substantial winding up speech to what I imagined would be the principal debate on this issue of secondary picketing. But it would seem to me—and I say this with great earnestness to noble Lords opposite—that it would be far wiser for them to listen on this occasion to the words which have been said by people with very much more experience of the working of the trade union movement than I myself have, speakers such as the noble Baroness, Lady Burton of Coventry, and especially the noble Lord, Lord Houghton of Sowerby. Therefore, I would beg them to attend to those speeches and to consider what the Government are doing, and to look at this as a principal platform of our policy not just in terms of the Bill but in terms of our policies as a whole: that picketing should be limited to one's place of work and that they will take the counsel of Lord Houghton of Sowerby and others rather than mine on this, and withdraw their amendment.
Lord McCARTHY: I am afraid that I cannot do that. I am thankful to the noble Earl for not making the speech that he was about to make. It enables me briefly to answer some of the things which have been said behind. As far as my noble friend Lady Burton is concerned, she will have no trouble with me; she is still a pin-up of mine. I am not threatening her with anything. Nobody is threatening her with anything except, perhaps, with not agreeing with her. That is all. I hope that we can answer some of her fears.
As far as my noble friend Lord Houghton is concerned, I want to say a little about what he said; but let me say that if he wants me to condemn violence on the picket line, I am pleased to do so. I am pleased to condemn violence on the picket line, on mass pickets, anywhere. Of

619
course we condemn violence and intimidation and anything of that unlawful kind, or watching or besetting, in a civilised society. We are not arguing about whether we condemn violence, but about what the Government are proposing to do and whether we think it will help; that is all. If we could solve these things by condemning them, there would be no problem. I would condemn inflation tomorrow if I thought it would help. Condemnation does not help, I find, on the whole, but if people want me to condemn then I will condemn, and I will condemn violence on the picket lines.
Now perhaps I can address myself to the amendment. First, I should like to address myself to the noble Lord, Lord Boyd-Carpenter. Yes, it would be all the T and G. It has been all the T & G since 1906. Before 1906, in 1890, there were thousands and thousands of men on the picket lines from all over the country. In the great dock strike of 1899, a great deal of violence took place. All of it was unlawful and it was very difficult for the police at that time to do anything about it. We are saying in this amendment that it might be possible—we are trying to help the Government—to gain acceptance (and that is what is important, and that is what the chief constables say, as I shall have briefly to point out) of what is acceptable on the picket line. It might be possible to help the Government gain acceptance and to draw a cordon sanitaire around "Rent-a-crowd", people who come to the picket lines with no purpose except to disturb it. It might be possible to draw that line.
But if you seek to draw the line round fellow members of the trade unions, then I say to noble Lords opposite and to noble Lords behind me that all the evidence of history (and my noble friend Lord Houghton, I think, really accepts this) shows that you cannot do that. Above all, you cannot do that by law. It is not as if we have not had laws against pickets in the recent past. Virtually every single activity of the National Union of Mineworkers in the two great mass pickets of 1972 and 1974 were unlawful. Anyway, it was all being done by an unregistered union, a union outside the law in terms of the strike itself. We know that the very inception of modern times of the problem
620
of mass pickets came at a time when the activities were unlawful, when the unions were outside the law because they had not registered. If they do not tell something about the limits of the law and about what could be done for the law, I am afraid that there is no help for them.
We are not saying that we are in favour of violence or of intimidation, but that at this point—because we shall be saying other things about what is wrong with this clause subsequently and what it lays people open to—in this amendment it might conceivably be possible, practically, to draw some kind of cordon sanitaire around the picket line; but not at the point where the Government want to do it. So I must press this amendment.
On Question, amendment negatived.
5.40 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 77C:
Page 17, line 29, leave out ("and whom he represents").
The noble Lord said: I hope that we may carry people with us on this amendment—I do not hope very much, but I hope. I should also like to take with this amendment Amendments Nos. 77D and 77G. This directs the attention of the Committee to some other aspects of Clause 15, which we think are unhelpful. I would have hoped that more people could see with some clarity that they were unhelpful than perhaps those who could see that what we were saying in the earlier amendment was not helpful.
In Amendments Nos. 77C, 77D and 77G, we are trying to get rid of what we regard as the unjustifiable and extremely unhelpful limitations on the freedom of trade union officials to—and I say this word with some care—in effect "police" the picket line. What we are saying is that the Government are limiting the access of trade union officials to the picket line. The Government are saying that trade union officials on the picket line should be limited to the area they represent. That is the effect of Section 15(1) of the 1974 Act. We are trying to take that out. We are trying to take out in particular anything in the Bill which is suggesting that there should be a limitation on the area of activity of the trade union official.
In other words, we are saying that it is a lunatic misunderstanding of the role of full-time officials and shop stewards on the picket line to think that their area of movement should be limited. The evidence of the chief constables given before the Employment Committee of the House of Commons shows they are universal in making the point that it is the unions that must be finally responsible for order on the picket line. The Chief Constable of South Yorkshire said that the union should accept responsibility of communicating with the police. He said:
"I feel that this is the job for the unions. They can have somebody there with whom the police can communicate".
Mr. Woodwock, the Chief Constable of South Wales, said:
"I agree with Sir Philip Knights in relation to the TUC guidelines; it would be a matter for them. Having said that, there is definitely a need for better understanding by ordinary workers as to what their rights are".
I suggest that the best people to tell ordinary workers what their rights are are the trade union officials, are the shop stewards. Even if the Government wish to narrow those rights—as they undoubtedly do—I dont think they should narrow the freedom of action of the trade union officials. The Chief Constable of South Wales went on:
"Quite frequently there are occasions when pickets are there in large numbers and all is peaceful and no great difficulties are caused. They are sometimes there for comradeship or solidarity. You must not assume that on every occasion there is a mass picket there is going to be trouble. You sometimes get a very jaundiced picture from the news media who tend to highlight the occasions when things go wrong, but this is by no means the norm because there are many other incidents which pass off day by day".
He then goes on again to say that it is the responsibility of the trade unions to maintain order on the picket lines. I have already quoted from the TUC guidelines, and I do not want to do so again at length, but paragraph 13 of the TUC guidelines says:
"Pickets should be advised to act in a disciplined and peaceful manner even if they are provoked by non-unionists or others. It will help to ensure that picketing is peaceful if an experienced member, preferably a union official, is in charge of the picket line. He should have a letter of authority which he can if necessary show to police officer or to workers attempting to cross the picket line. He should ensure that the number of pickets is no larger than is necessary".
If that is the policy of the Trades Union Congress in so far as they can get
622
the trade unions to accept it—we cannot ask them to thrust it down their throats; they are a voluntary organisation—I would have thought the Government would want to facilitate the movement of trade union officials round the picket lines.
The Chief Constable of South Yorkshire, again, said:
"Some of the experiences I have had are where the unions have not controlled the pickets. Their marking of pickets has been haphazard with pieces of paper stuck in pockets or on their lapels; some had armbands. But we did not have just one union".
He said it would have helped if they had. Again he said he felt this was a job for the unions.
So what we are saying in these related amendments was something which noble Lords could accept: it helps to have trade union officials on the picket line; it helps to have them moving about the picket line and anything in the clause which limits the area where they can move to those who they happened to have been elected by, which would incidentally rule out, for example, a senior shop steward or convener moving around his own factory on the picket line, although might be the natural person to control that picket line, is a very bad policy for this Government to adopt even with the general objectives of this Bill. I beg to move.
5.47 p.m.
The Earl of GOWRIE: These amendments aim to remove words introduced by Government amendment at Report stage in another place. A number of those who commented on the Bill prior to Report expressed fears that the clause, as originally drafted, would have allowed very wide scope for picketing by trade union officials whose members were picketing. It would have meant, for example, that where union members were picketing at their own place of work—where we seek to limit picketing—it would be perfectly lawful for any official of that trade union, including shop stewards from another place of work, to join those members on the picket line.
These comments led us to look at the clause again. We concluded that the scope of the clause was unnecessarily wide and carried some risk of abuse. At the same time, we recognised—and I recognise

623
the wisdom of some of what the noble Lord said—that it would often be desirable for an experienced trade union official to join the picket line in order to advise and organise his members and, I would say in most cases, to keep good order there.
Accordingly, the amendment which we introduced at Report, and which was agreed and incorporated into the Bill, seeks to limit the scope for picketing by trade union officials without limiting the right of any union official who has a legitimate interest in the dispute to picket lawfully alongside his members.
We think that the clause as now drafted represents a sensible and realistic position. It allows trade union officials to picket alongside members whom they represent. That is not a difficult or complex requirement. It is explained in subsection (4) as meaning just what one would think it meant: that an official is regarded as representing those members he has been specifically elected or appointed to represent. In other words, a shop steward represents only those members he has been elected to represent at a particular factory; branch officials represent members of that union in their branch; regional officials members in their region and so on. And in the case of the few, mainly national, full-time officials who have not been appointed or elected to represent one specific group of members, they are to be regarded as representing any members of their union.
The general point which concerns us throughout the clause as a whole is particularly the possibility of a trade union bussing—to use what is one of my least favourite transitive verbs in the language, but I cannot find another one —large numbers of shop stewards, perhaps specifically appointed for that occasion, around the country in order to bolster picket lines. If Clause 15 had simply allowed union officials to picket anywhere their union members were picketing, which I think is what the noble Lord opposite would like, there would have been a clear risk of mass picketing by officials.
The requirement that officials can picket only alongside those members whom they represent has, in our view, removed
624
that risk. It means that shop stewards can only picket at the factory where they work and where they represent ordinary union members. As I said, the national branch officials and others will be able to picket, but by definition they are limited in numbers. There is only one regional chairman for each region and only one general secretary for each union, and their presence on the line would not have the intimidatory effect that the noble Lord, Lord Houghton, and others have so eloquently deplored. We believe the clause achieves both objectives that we had in mind. It enables the appropriate trade union official to play a full and responsible part in organising a picket line, including seeing to good order, and it guards against the possible abuse of this provision through mass picketing by officials, whether genuine or bogus.
I wonder whether I may take this opportunity to refer briefly to a quite extraordinary misrepresentation of this general provision, and indeed of others in this clause, which occurred in the Daily Express on 3rd June. In what I thought was a wild attack on the Prime Minister and this legislation, that great expert on industrial relations, Mr. George Gale, perpetrated a series of elementary howlers which leads one to doubt whether in fact he has ever looked at the Bill. I hope that George or his minions are listening, and also Victor Matthews and my old friend Nigel Broackes, whether directly or by proxy, at this moment. George Gale claimed that the provision governing picketing by officials—and I am now quoting his words:
"… could mean gangs of Trotskyist shop stewards who will be allowed to join mass pickets and that there will be nothing to stop that arch-priest of mass pickets, Arthur Scargill, triumphantly progressing from picket to picket."
I must say I should like to commission an allegorical painting of that event! It will be evident from what I have said that this is totally untrue and is outlawed by the provisions of the Bill.
Mr. Gale went on, with a similar disregard for accuracy, to claim that our Bill does nothing to prevent secondary picketing and that, in his words:
"Miners will be able to picket steelworks, steel workers to picket oil terminals, dockers to picket road haulage firms, lorry drivers to picket railways and the railwaymen, as they have threatened, will then be able to picket and close the mines".

625
Now that sort of careless reporting or wilful distortion of the actual provisions of the Bill helps no one, and least of all those who have genuine doubts, which we recognise, as to whether we have gone far enough.
Finally, to return to Amendments No. 77C and 77G, if these were accepted they would remove these requirements and return to the original position in the Bill. It would be open for any trade union official to attend wherever members of the same union were picketing lawfully. I suppose this is another case in which the noble Lord, Lord McCarthy—as ignorant, I think, of feelings outside this Chamber as he is of the mood within it—would say that this was simply "a slight amendment". I do urge him to withdraw it or, if he presses it, that the Committee resist it.
Lord McCARTHY: Not being a Minister of the Crown I do not have to read Broackes. I am sorry the noble Earl does have to read him, but with respect I should like to get back to this amendment. I am afraid I cannot withdraw it. I quite see that he feels it may go too widely and I listened with great care to his concern. He is concerned, as I understand it, about bussing. I would suggest to him that bussing, on the whole, by and large, is an unofficial activity and that what we are concerned about here is official activity. I wonder whether he would think again or whether he could say whether he would look favourably on another amendment if we were to put one down at Report stage dealing with official activities.
The heart of my concern is that trade unions themselves, seeking for the most part very, very hard indeed to control intimidation and any violence which they may find coming from their members, have in the real world to use a very small staff—I repeat, a very small staff—of volunteers. They may indeed draft in full-time trade union officials from other areas and regions in order to police the picket line. I do beg the noble Earl not to rule that out, because unions are lawful bodies. If they are told—not their members—that they cannot draft in other union officials from other areas to police picket lines, they will not do it and none of us would like the result.
626
I would also press the point of the convenor of shop stewards, who may be the convenor of a multi-union group of shop stewards and who has in his hands the control of a whole range of voluntary effort. Under the provisions of this Bill, as I see it, this man, however modest, however moderate and influential he may be, if he only represents 35 men in the tool room, cannot go on the picket line and represent his union in another place, or, say, in the same place of work but on the other side of the road. So all I am saying is that at this stage we cannot accept to take this clause away and we will return. In the meantime, I would ask the noble Earl to think very carefully whether he really wants to restrict the official activities of trade union officials, especially full-time officials, in their necessary and unenviable job of policing picket lines.
Lord HARMAR-NICHOLLS: May I just come in on one sentence? I know that the Government want to get their business done and may not be pleased with me for butting in. The sentence that bothers me, and I hope the noble Lord, Lord McCarthy, will not feel he need use it again, was: "They will not do it". He is not saying that, even though both Houses of Parliament have examined these things in detail and have tried to come to a conclusion which is in the best interests of the nation as a whole, it cannot be done, but that, despite this being the law of the land, the unions will not do it. He has put it on record, and I hope it is not well based, that the trade unions, or a lot of them, want to be above the law. Those are the words that he used in the process of his argument and they meant precisely that. He said, more or less: "Even if you do that, even though this has been debated in the other place and we are now debating it here, at the end of the day they will not do it ".
I believe that they will do it if it can be seen that it has been properly and fairly examined. On this particular narrow point, I would have felt that the trade union officials would want these words in. At the end of the day, this legislation gives lots of powers to the trade unions. It is proposed to give them perhaps more powers than in the interests of the nation they ought to have in the light of experience of recent years; but they are getting lots of powers and it leaves many

627
of us very unhappy. We are told they are only being given these powers at this moment because we are going along "softly, softly" and hoping to get compliance. It may not happen that way, but it sounds very reasonable. However, if I were a trade union official wanting to intervene in anybody's picket line I should like to feel that I did represent them. I should like to feel that my powers as a trade union official carried with them also the ultimate power of representing the people I was joining and standing alongside. I should have thought this gives what union representatives who are wanting to take part in pickets want—not to leave it open, so that any trade union can be brought in. If somebody is there giving guidance and a general interpretation of how a picket ought to be managed, he should be in the position of being able to say, "I am not only a trade union official with a wider knowledge of what trade unionism means, but I also represent the people I am guiding and the people I am leading".
The noble Lord is quoting chief constables, as being people who ought to be listened to. I hope that the noble Lord will, in his future speeches, accept what they say and will not quote only points which lead up to their ultimate advice, that, at the moment, the law is not good enough and needs to be strengthened. But, at this moment, I am worried about those terrifying, dangerous words, in which he said that although this will be the law, properly put into the statute book, "they will not do it".
Baroness SEEAR: I am, as will be expected, not in agreement with the main thrust of the arguments of the noble Lord, Lord McCarthy. However, there is one point which he raised which I would ask the noble Earl to examine very carefully; that is, the point which was raised recently about the position of a convenor. As I understand it, it is highly desirable that there should be responsible people on the picket line, who will order the picket line. I am sure it is not intended that the convenor should be excluded, because the people to do this are not trade unionists or officials brought in from outside.
The desirable people to keep order on the picket line are the people who are the
628
normal leaders of the men inside the plant; that is, the shop stewards and convenors who deal with them day in and day out who have been elected by them and whose authority they respect. What I am asking the noble Earl is: is it really the case that, under the legislation as it stands, the convenor could be ruled out? If that is the case, it is surely undesirable, and cannot that clause be looked at before Report stage, to see whether it can be worded in such a way that the convenor's authority is not undermined?
Lord McCARTHY: I am thankful to the noble Lord, Lord Harmar-Nicholls, for his intervention, because I have obviously not made myself clear. He mentioned a narrow point and a wider point. What I was saying on the narrow point, when I said "they will not do it", was that the trade unions would not defy the law. That is what they would not do. What I was saying was that, in the interests of industrial peace and of disciplining the picket line, they ought to be able to draft in the convenors. They ought to be able to draft in trade union officials from other regions.
But if they are told that under this clause they cannot do it, then they will not do it. In other words, they will observe the provisions of the law. The intention and spirit of the TUC's disputes code on this will have to be modified, because it will not be possible for the trade unions to perform what I regard as their necessary functions, as in this respect they will observe what the law says. So let us get that on the record.
On the wider point, I have been saying —and I think I shall be saying quite a lot today and, maybe, tomorrow—that there are limits to which trade unions can compel their members to observe the law; that there are many laws in this country which are not observed, and these may be some of them. We are not saying we desire that, and we are certainly not saying that we are looking forward to it. We are saying that it happened in the recent past, under the 1971 Industrial Relations Act, and it may happen again. That is the wider point. I am not predicting or encouraging it. I am saying that it might happen.
The Earl of GOWRIE: On this last point, if I may take up that part while it

629
is still fresh in the minds of the Committee, we must make a distinction between the type of law needed to control behaviour on a picket line, which, as the noble Lord, Lord McCarthy, has wisely said, is a matter of criminal law which deals with offences, and the type of law needed to protect or give a remedy to employers or workers whose contractual relations are being disrupted or interfered with.
Of course, there are problems of enforcement with any criminal law. The fact that certain motoring offences exist does not stop us from committing them. More seriously, there can be punch-ups in the streets, even though the law is explicit that such behaviour constitutes various offences. But, under this Bill, because an employer can now seek an injunction against roving, flying or stranger pickets, as the Americans call them, the familiar kinds of "agro" that we have seen—to use a term which everyone uses—are much less likely to occur, because flying or stranger pickets are, by definition, less persuasive than pickets at their own place of work, even though the objective of picketing is traditionally peacefully to persuade.
As the noble Lord, Lord Houghton, told us when we were discussing a previous amendment, flying picketing is inherently designed to frighten both the workers concerned and the general public. That is why it is so objectionable, and that is why this legislation has firmly outlawed it. That is also why, if I may go back to the Committee sitting of last Tuesday, in our reforms in connection with the closed shop, we have, we feel, taken some of the sting away from picketing and from pickets, because you may not now be arbitrarily or unreasonably excluded or expelled from a union without having redress in the courts.
What I have just said is the nub of what could be called—and here I am taking up the point made by my noble friend Lord Harmar-Nicholls—the teeth in this Bill, and if he looks at those teeth he will find that it would be quite easy to cut oneself upon them, should one be so foolish as to wish to test them.
To return to the amendment in hand, and the follow-up remarks of the noble Lord, Lord McCarthy, as I said earlier,
630
our clause allows trade union officials to picket alongside members whom they represent. I said in my earlier remarks, which I am quite happy to repeat, that we recognise the contribution to good order during picketing which union officials can make. There is absolutely no disagreement between us about that. But, obviously, we have had to see that there cannot be a kind of industrial relations equivalent of the Western movie, whereby the sheriff can pick a star out of his pocket and pin it to the bosom of whomever he fancies wishes to join in the posse, because that would—to continue with the Western metaphor—drive a coach and horses through the otherwise sensible provisions of the clause.
Taking the point made by the noble Baroness, Lady Seear, my advice is that the convenor can picket, if he is a member of the same trade union as the picket, at any factory for which he is responsible. Therefore, it seems to me that he does get in on the act—
Baroness SEEAR: I am sorry to interrupt the Minister, but I cannot have made my point clear. The convenor himself may belong to union A, whereas, as convenor, he speaks for a whole group of unions. Therefore, if he wants to control order then, technically, under the Bill as it stands, and not as I think is intended, he would not be able to picket alongside people involved in the picket of the establishment who were in a different union from the union of the convenor. That is the point that I am trying to make.
The Earl of GOWRIE: I take the noble Baroness's point and she is, indeed, right. But I do not think that we should look upon a picket line as a form of club, and take the view that we are unreasonably excluding certain people from taking part in it. We have made very clear provision for the presence of union officials right up to, and including, the general secretary and it seems to me that we have got it about right. However, I will read the debate carefully and go back to officials and look over the points about the convenor which both the noble Baroness and the noble Lord, Lord McCarthy, have raised.
I make no commitment whatsoever to return to them. While I am always

631
anxious to accommodate the noble Baroness, in this instance I should be more convinced that the noble Lord, Lord McCarthy, was talking words of sweet reason as well, in agreeing with her, if he had not a few moments ago moved Amendment No. 77B which enables workers to picket at other premises where there is a dispute or where other members of the same union work—which of course would effectively restore the law to its present and deeply unsatisfactory position. However, I gave the undertaking and therefore I shall honour it.
Lord McCARTHY: On the basis of the noble Earl's undertaking on that point, I am very pleased to withdraw the amendment.
Amendment, by leave, withdrawn.
6.11 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON had given notice of his intention to move Amendment No. 77D:
Page 17, line 30, at end insert—
("or is an official attending at or near that place at the request either of his trade union or of such a member,")
The noble Lord said: May I explain why we shall not now be moving this amendment? I should like to impress on the noble Earl that there are further points which develop from the argument put forward by the noble Baroness, Lady Seear. The convenor may represent many types of workers from different unions. So may other shop stewards. The idea of the convenor having to accompany a particular member of his own union is, in our view, a very impractical proposition. I understand that the noble Earl has made no commitment, but we have had a suggestion from him that he will go away and think about it and discuss it. In asking for the leave of the Committee not to move Amendment No. 77D, I do so in the spirit of asking the noble Earl to look very carefully at the form of Amendment No 77D and to include it within his considerations.
The Earl of GOWRIE: Yes.
[Amendments Nos. 77D and 77E not moved.]
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 77F:
Page 17, line 42, leave out ("who is not in employment and").
The noble Lord said: This amendment can be moved very swiftly. It relates to a point in subsection (2) dealing with the worker who is out of employment and who has had his employment terminated in connection with a trade dispute. We had intended to question the phrase:
"whose last employment was terminated in connection with a trade dispute".
However, to save time we decided to put down this amendment, and it was agreed that I should preface my remarks by asking the noble Earl and his advisers to consider what:
"terminated in connection with a trade dispute"
means.
The amendment goes to this very simple point. A worker is defined, under the statutory provisions, as somebody who works or normally seeks to work, under a contract of employment or a contract for services, at a particular place. This has been a very important definition in trade dispute law, not least during the period of the 1971 Act, when it was involved, as a matter of interpretation, on two or three occasions in the Midland Cold Storage litigation that led to the imprisonment of the dockers. Workers out of work and seeking to work may therefore clearly be parties to a trade dispute, and the Government's Bill will not change that.
However, when we come to the right to picket, that right for the worker whose employment has been terminated in connection with a trade dispute is defined in subsection (3) as his last place of work, so long as he is not in employment. We ask the Government to think again about this, for "not in employment" is open to more than one interpretation. However, as we understand the Government's proposals, as discussed in another place, they mean a worker whose employment is terminated and who has no other job.
Although it is not a major source, it is some source of support for the families of those engaged in a trade dispute, most of which no doubt will be industrial action by unions but some of which may be lockouts, or it may be a mixture of both, with one side calling it one thing and the other

633
side calling it another. A party to a trade dispute, as a dismissed worker may still be, who does not have employment may have the right to picket, but the worker who takes a part-time job may not. The recent book on financing strikes by Mr. Gennard, who advises the Department on various matters, showed that in recent strikes a certain percentage of workers took part-time jobs to tide them over the dispute.
It seems to us to be unreasonable that the formula should be so absolute, especially as it would cover the case of a lockout, and that the only person who can picket is the man who has not taken a part-time job to help to support his family. It is a small point, but it is important to the families of those involved. I beg to move.
Lord DRUMALBYN: May I ask the noble Lord why he has put his amendment in this form? If he is basing his case on people who might be in part-time employment, would it not have been easier for him to have inserted "who is not in full-time employment"?
Lord WEDDERBURN of CHARLTON: If it is the wish of the Committee that I should answer that question, I will happily join in discussions with the noble Lord and with the Government if they are disposed to reconsider whether some such formula would be desirable. I should perhaps have used these words—obviously this is a probing amendment—to find out whether or not the Government would take a more relaxed view of what I described as an absolute formula.
The Earl of GOWRIE: Subsection (3) of Clause 15 extends immunity to those who, having lost their job as a result of an industrial dispute, picket their former place of work. We think that that is a just and necessary provision, but the amendment standing in the name of the noble Lord would make it lawful for any person whose last employment was terminated in connection with a trade dispute to picket at his or her former place of work in furtherance of that dispute, even if he or she had subsequently found alternative work.
The subsection which I mentioned does not allow somebody to picket his former place of work in the circumstance of his having subsequently found another
634
job. That is what the noble Lord seeks to correct. We believe that that would run counter to the principle underlying the clause—the philosophy, if you like—which is that only people with a real and continuing interest in a dispute should be allowed to picket at their own or their former place of work. If a person has got another job, why should he be allowed to go back to join the picket line at his former place of work?
We recognise that the clause will make it unlawful for somebody with two jobs who loses one of them to picket at his former place of work, but we do not think that this is a sufficient problem to justify amending this clause in a way which will widen the scope for picketing well beyond those who have got two jobs—widen it, indeed, to those who have taken up new employment and who can have no legitimate reason, in our view, for returning to their former place of work. In practice, it is unlikely that difficulties will be caused on the picket line because somebody who has two jobs cannot picket lawfully at the place from which he has been dismissed. Nor can this seriously be represented as a major restriction on the right to picket. There will never be so many people, surely, in a dispute who are disqualified from picketing because they have got two jobs that an effective picket, a persuasive picket, cannot be mounted and the interests of all the workers concerned adequately protected.
The noble Lord then added a rider to the amendment, in the form of a probe, to see what might be the position of somebody who was taking part-time work during a dispute or a lockout. It still seems to me that it is unreasonable for him in those circumstances to join the picket. Also, it would be unlikely, I should have thought, to happen very much, because normally one tends to picket during the hours of work, and if one had taken other work one would not have much time to join a picket elsewhere. It certainly would not be very attractive to one's employer, should one be working in one place and picketing in another. So I think that the noble Lord's instance is a little far-fetched.
Nevertheless, in the interests of good industrial relations and giving even less of an undertaking than I did on the last

635
amendment, I will have a look at this, since the noble Lord did say it is a probing amendment and since it was not, in my view, covered by the amendment to which I have just spoken. Therefore, I will look at the point which the noble Lord has made.
Lord WEDDERBURN of CHARLTON: We shall obviously, as the hours go on, have to learn the exact refinements of the noble Earl's undertakings which are not undertakings, but I am encouraged by what he said. I am encouraged, too, by the intervention of the noble Lord, Lord Drumalbyn. I merely wish to say this in order, as it were, to encourage the noble Earl to think perhaps a little more than he was suggesting he might.
I will take one of the figures. I cited none of the figures in order to dispatch the matter and encourage speed, but if one takes the ETU strike at Chryslers in 1973, 5 per cent. of the workers took part-time jobs. Such part-time jobs do not take up all the hours of work or every day during the working week. They are usually jobs of small hours and a few days, and it does not seem to me and my noble friends a fair and sensible line to draw. I very much hope that the noble Earl will be able to put some rather different formula in the clause or, if not, at least be able to accept some other representation before Report stage in order to change subsection (3) to the extent at least that the noble Lord, Lord Drumalbyn, would perhaps encourage me to think he might come to consider favourably himself. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 77G not moved.]
The DEPUTY CHAIRMAN of COMMITTEES (Baroness Wootton of Abinger): I have to inform the Committee that if Amendment No. 77H is agreed to I shall not be able to call Amendments Nos. 77J or 77K.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 77H:
Page 18, line 12, leave out subsection (2).
The noble Lord said: This is in some ways the first of a number of substantial problems concerned with this Bill in its
636
approach to trade union rights. Perhaps it would be more accurate to say the rights of trade unionists and the rights of workers, because I speak of those who act in contemplation or furtherance of a trade dispute. The rights of those to take industrial action and to picket in support of that industrial action have been based upon the formula of acts done in contemplation or furtherance of a trade dispute since 1906 in the civil law and 1875 in the criminal law. It is, therefore, in order not to have to repeat arguments in relation to subsequent amendments—indeed, subsequent amendments on a subsequent clause —that I wish to put forward under this amendment the basic argument concerning those acts in contemplation or furtherance of a trade dispute that my noble friends and I wish the Committee to consider.
Before I do so, I should point out that it occurred to me in a previous discussion —I did not wish to intervene then—to say that perhaps, as the noble Earl said, the Bill has been misrepresented by certain journalists who perhaps were less than responsible in their description of it. It may be that one of the things that divide the noble Earl's side of the Committee from at least some noble Lords on this side is the fact that we believe that many of the arguments and pictures drawn by such journalists—and there are far worse than the ones he named—have misrepresented the social facts about the commonness and norm of intimidation on the picket line. The point has been made before, but I make it again because it is important here.
What does subsection (2) of Clause 15 do? We have already passed across the new formulation of the picketing clause itself—that is to say, the right to picket at any place in furtherance of a trade dispute, which (and I have to say this to Ministers) the trade union movement had to fight for for a hundred years before 1906 and which it has enjoyed since 1906. Compared with any other country in which picketing is a normal part of industrial practice, there have been remarkably peaceful picket lines in Britain. Having established that, this clause then says that one can picket only at one's own place of work. We have passed across that, so that whatever protection there was, whatever right there was to picket anywhere else, which there has been for 74 years, is now taken away.
But now the clause goes on to say something else. We will come back to the exact effect of the narrowing of Section 15. By "Section 15" I refer to the new form in which it was put into the 1974 Act by Clause 15 of the Bill. We will come back later to the new form of Section 15. But we now turn to the further step which is taken by subsection (2). That subsection takes away Section 13 of the 1974 Act. That means that Section 2 exposes anyone who attends at the wrong place to all the liabilities of the common law which it was necessary to have legislation to protect by what were called the immunities in order to have legitimate and lawful trade union action, including the action of picketing.
In 1906 the major areas in which it was necessary to establish trade union rights by way of immunity were the known areas of torts or civil wrongs based upon economic pressure; conspiracy to injure; inducing breach of employment contracts and interference with trade. Those were the wrongs known in the courts, as the Donovan Report points out. When the Government justify Clause 15(2) they tend to speak in terms similar to those used by Mr. Mayhew in the Second Reading debate in another place on 17th December 1979. His speech was matched by other speeches, but it is the shortest to quote. He said that this clause of the Bill was aimed at
"restoring to employers, and others"—
that is a very important addition—"and others"—
"who are harmfully affected by the consequences of people acting as pickets inducing breaches of contract, their common law rights, that statute has taken away". —[Official Report, Commons, 17/12/79; col. 170.]
It is, I think, a basic distinction of view between this side of the Committee and the Government that we do not regard the matter as advanced one way or another by talking in what are prejudicial terms about restoring common law rights that statute has taken away. If all the common law rights that statute has taken away were returned, trade unionism would become entirely unlawful. The noble Earl has suggested that the law is in the form of an immunity for historical reasons. From previous debates I know that he and I more or less agree about that, although I have a further communication this summer which I will send to him.
The idea that because they are immunities in form they are privileges in nature is nonsense, and historical and social rubbish. Therefore, when we come to this we must understand that subsection (2) is taking away basic trade union rights in the sense that people who venture a step beyond attendance at the right place then become liable not merely to trespass on the highway, nuisance, obstruction or the normal things thought about as the limits of picketing, all of which are in the existing law and to which this clause may make little difference, but also to injunctions and damages in respect of the economic torts or the economic civil liabilities.
The Earl of GOWRIE: Will the noble Lord give way? I am very grateful. At this juncture I would not want him to give the Committee the feeling—he is a very skilful man, and perhaps he is able to do rather better than I can—that the situation that obtained in 1906 or previous to it was really very relevant today. The trade union movement has come a long way since 1906. We are concerned overall not to put the clock back, as he has often argued we are doing, but to redress the balance where legislation which grew up in such a way as to protect weak organisations is now reinforcing the activities of very strong ones.
Lord WEDDERBURN of CHARLTON: If the noble Earl will allow me to say so—and he has more experience and skill in this place than I have—he must make his speech in his own way when his turn comes. I thought he was going to address a question to me. I have comments on what he has said but I will reserve them and will continue with my argument.
The relevance of 1906 is what happened between 1906 and 1980, because when one looks at the development of the law one finds that the immunities which are being taken away gradually had to cover a wider area (as it became discovered) of economic tort liabilities. For example, in 1969, in the words of Lord Denning, the principle of inducing breach of contract of employment or another had to be extended. The noble and learned Lord the Master of the Rolls said this in 1969 in Torquay Hotel v. Cousins—and I quote:
"The time has come when the principle should be further extended to cover deliberate and direct

639
interference with the execution of a contract without that causing any breach".
I make that point here because again I do not want to have to repeat this during the debates and I hope we shall not have any argument about it. There is sometimes an argument about whether judges create law in the common law or whether they do not. It does not really seem to matter how one puts it because the genius of the common law is that the common law remains the same and yet tomorrow is never quite what it was yesterday. Indeed, if it were the same tomorrow as it was yesterday it would be a very foolish system of law.
When Lord Atkin created the tort of negligence by a magnificent stroke of genius—the noble and learned Lord the Lord Advocate reminds me with a smile that it was a Scottish case—it was based upon common law principles which were developed. I do not mind whether people call it development or whether they call it creativity, or, as Lord Devlin has put it in his book, the historic role of the judiciary as law maker which he would wish to see restricted in certain areas, we all agree that the common law develops; and in Torquay Hotel v. Cousins the noble and learned Lord the Master of the Rolls in the Court of Appeal developed it in a form which was not quite clear before. That had to be protected and it was done eventually on the recommendation of the Donovan Commission in 1976, in the Act of that year.
Similarly an actual or threatened inducement to breach of commercial contracts became clearly, in the 1950s and 1960s, actionable as torts against those who were organising strike action. This is relevant in the sense that the range of liabilities to which working people, when they took industrial action, became liable, gradually became wider and wider in the sense that they were not foreseen to be so wide, at least, in 1906.
If one reads the speech of the Lord Chancellor of the time, the noble and learned Lord, Lord Loreburn, on the Bill of 1906, it is very clear that he thought they were covering the economic torts of the day. Similarly Section 13(3), to which we have to come in Clause 16, protected the new areas of interference with contract or breach of contract as unlawful means.
640
I make these points not only because they recur later but also because the nature of the torts or the nature of the civil wrongs, protection from which is removed in subsection (2) of this clause, is now very extensive indeed. They are based upon the same common law principles but they have developed in a much more extensive way. I will take only one illustration from the more detailed areas of the difficulties for those taking industrial action.
It was pointed out in another place by the Attorney General, on 18th March at col. 1337, that those who picketed in the wrong place did not have too much to fear in terms of procuring or inducing breaches of contract, even of commercial contract which it was now clear they could be liable for directly or even indirectly, because, as he put it—and I quote him:
"Mere peaceful communication does not create any offence. It is communication coupled with persuasion or inducement"—
and he is speaking of pickets.
"Just to say to one's pals 'we are on strike in the next door factory' certainly would not be picketing".
I take the point that there is a legal distinction between information and advice. There has only been one case in the last 50 years in which a union official has managed to succeed in a defence based on that point. The best authority as I am sure the noble and learned Lord the Lord Advocate will appreciate, is the Scottish case in 1968 of Square Grip Reinforcement Company v MacDonald, where Lord MacDonald made it very clear that in the modern law, at least, anyone (as he puts it) who is anxious that a person should act in a particular way would be held liable to have induced him to act even if he merely suggests that that should be so. So that the range of liabilities to which the picket who offends in terms of his place is now to be exposed by the removal of the whole of Section 13, and it is enormous. The damages could be gigantic.
I press the Government with a further point. Why is it that in Clause 15(2) the whole of Section 13 is removed whereas in Clauses 16 and 17 the Government restrain themselves and remove the defences under subsection (1) of Section 13 only; that is to say, to put it in rather less technical language, why is it that in

641
Clauses 16 and 17 the rights of the trade unionist that are removed relate to interference or threats of interference with contract alone? As opposed to that —there are three other parts of Section 13 but I will take one of them—why is it that the protection of the picket in the wrong place (the unlicensed picket, as he is now known), his protection against conspiracy to injure, is removed? As noble Lords will know, conspiracy to injure is a combination to do acts which are perfectly lawful in themselves but which are illegitimate because of the view which the court itself takes about their object. Over the years the judicial interpretation of that which is legitimate, especially in industrial action, has varied considerably from the case of Quinn v Leathem in 1901, where the House of Lords was very hard upon it, to the Crofter case in 1942, at the height of the war, where the House of Lords took a much more relaxed attitude. I do not know what the attitude of judges will be in five years' time, but of course the judicial authority on the question of legitimate object in a conspiracy to injure is absolute.
So we have the position where the type of liability which is being imposed in terms of the removal of Section 13 is very large indeed, and I suggest that because it removes the whole of Section 13 it is a piece of overkill by the Government, even in terms of their own strategy. And when one adds to that whole area the principle which was suggested and debated last Tuesday, that anyone who does any act which by any unlawful means creates damage (which can now include a breach of contract), and one loses subsection (3) of Section 13, obviously the possibilities of civil liability are very large indeed.
The Government allege that they need this new area of civil liability in order to deal with the misdeeds of secondary pickets or pickets away from their own place of work, which is rather different. First, we say that a new civil liability will not help one little bit. That area has been traversed already in discussions with my noble friend Lord McCarthy, but I repeat it particularly because there is no point whatever in adding to the law which at the moment is quite adequate (as chief constables have said, albeit in need of clarification in certain areas) to deal with misdeeds of secondary picketing. There is no point whatever in adding
642
these vast civil liabilities for injunctions and damages, some of which might in some cases possibly be defied.
Of course, some action in picketing, be it primary or secondary, as some action of employers, is unwelcome and the TUC guides—from which my noble friend quoted, and therefore I will leave aside in terms of quotation—are, we say, in the vast majority of cases, observed and provide a much better way of dealing with the matter by discussion between the TUC and the Government.
Of course, what matters most perhaps in terms of civil liability, as opposed to the other areas already dealt with by the clause, is that the employer in dispute may be the last person who wants to bring a civil action for these huge areas of civil liability. The noble Lord shakes his head; he may be an employer who would want to sue. I can think of, and indeed have discussed the matter with, employers who say: "Well, we might in the extreme case, but in most cases we would not want to bring a civil action for damages. It is the last thing we would want to do because industrial relations would be ruined for years to come". But it is, of course, third parties who can bring actions, not necessarily people in the trade, responsible customers or suppliers, but any third party who is injured in a way that can be said to be calculated injury or even foreseeable injury, a point which is obscure in case law. So this is an area not merely of vast and wide liability, but an area of vast and wide potential plaintiffs.
It also raises a problem in regard to civil liability which has been discussed before but to which the Government have given no sensible or adequate answer yet in discussions in another place. I refer to the question of identification. In order to bring an action against a defendant, you need to name him and you need to know his name and address. We need not go over the ground of whether the police will take the names and addresses for this purpose, because we know from Government statements and from the chief constables that the police will not take the names and addresses for this purpose. Therefore, we have the situation that anyone who wants to bring a civil action needs to obtain the names and addresses of people who are picketing at

643
the wrong place; they have got to get it right to the inch and they have got to get it right to the name.
This House need not concern itself with the debates which took place in another place about people arriving in beards and giving false names and so on. I do not predict that that will not happen; I do not predict it will, but I do not believe it will never happen. I should be surprised if noble Ministers predicted that it would never happen, that somebody might come along, not necessarily in a mask, but not giving his correct name in order to escape the possibility of this extensive liability in civil law, about which many workers and trade unionists are extremely concerned. Many of them who wish to see picketing run according to the TUC guidelines are very concerned about the extent of this liability.
In truth, when problems arise on the picket line the distinction between primary and secondary picketing, especially for the purposes of civil liability, is in fact an unhelpful distinction to draw. It is surprising that the Government should latch on the extensions of civil liability, or, to put it in trade unionist terms, the cutting down of trade union rights, as they have been for 75 years, in terms of the primary and secondary line. It is a surprising line to draw for that purpose. We have seen the logic advanced for it in redrafting Section 15 of the 1974 Act, but for the extra purpose of civil liability it seems the wrong line to draw. It will involve the possible plaintiff, who may be anyone injured, in an extraordinary process of finding his defendant. In 1972 we had process servers chasing dockers through the streets. That seems an absurd situation to recreate. It creates a situation of very great resentment on the part of hundreds of thousands, indeed millions, of responsible trade unionists who know that they have had to fight, or their forefathers had to fight, for the right in the form that it is now in the civil law. And they are very aware of the distinction between the civil and criminal law. Noble Lords who think that they do not know the distinction should go on a trade union course or go to a branch meeting. Trade unionists are very aware of the point about civil liability, the dangers of it to them, their shop stewards and officials. Therefore, this subsection, we say, is
644
over-kill; it will not help with the problems defined and should be removed from the clause. I beg to move.
Lord ROCHESTER: I am not qualified to debate with the noble Lord, Lord Wedderburn, some of the legal niceties to which he has referred, but a certain sense of filial piety obliges me to rise to my feet. It was in 1906 that my father was first returned to another place as Liberal Member for Rochester under the administration of Campbell-Bannerman. The noble Lord has referred to 1906, and I recall from the celebrated correspondence in The Times recently that he looked back to 1906 and the time when the golden rule in this regard, as he described it, was established. Whether the legislators of 1906— and as a Liberal I feel some remote sort of responsibility for what they then did—were wise in the action they took, I do not know. The situation was certainly different. The point I want to make now is that, whether or not they were wise in their time to do what they did, the situation has moved on and we are now in 1980. There are things which have occurred, as the noble Baroness, Lady Burton, has said—things like flying pickets and things like blacking—which the legislators of 1906 could not have foreseen, and I cannot believe that my Liberal predecessors, among whom my father was numbered, would view the situation today in quite the same way as did the legislators of 1906, whatever it is that the noble Lord, Lord Wedderburn, may have to say on that subject.
Lord RENTON: It is not because I was once Recorder of Rochester that I intervene very briefly in this discussion. I do so because I have some genuine sympathy with the difficulties expressed by the noble Lord, Lord Wedderburn, in the understanding of what is in these clauses, 15, 16 and 17, to which he referred. The Government were wise in Clause 15, when re-enacting Section 15 of the 1974 Act, to do so in the way they have done, by means of textual amendments. But when we come to subsection (2) of Clause 15, and to other subsections in the two later clauses, where Section 13 of the 1974 Act is referred to, there is really, alas, a great problem of understanding placed before us. Instead of textual amendment taking place we have an

645
undesirable form of legislation by reference.
Confusion is worse confounded by the fact that when we turn to Section 13 of the 1974 Act we do not find it in its original form, if we have been thorough in our search of the statute book, because we find that it was amended by the amending Act of 1976, and that has to be read into our understanding of these subsections where Section 13 is referred to. I think this might well have been a case either for a Keeling schedule or for doing in relation to Section 13 what has been done in relation to Section 15 in subsection (1) of this clause we are now discussing. Whether or not one agrees with the noble Lord, Lord Wedderburn, in the substance of the matter as to which he has spoken in a way which enlightens the Committee, I do feel bound to make the point to my noble friends on the Front Bench that it would be most helpful if, before the Bill leaves this House, the exact effect of Section 13 could be made plain in one or other of the ways I have mentioned.
The Earl of GOWRIE: The amendment, in our view, strikes at the heart of the Bill's provisions on picketing. I thought there was an element of bravura performance in the noble Lord's speech, which is why—and he was good enough to give way to me—I intervened in the middle of it in order to bring out the very point which I am glad to say the noble Lord, Lord Rochester, made during his rather briefer remarks. It is that laws which were designed to protect and encourage weak and nascent bodies are rather different from laws which try to redress balances or wrongs in a totally different period of historical development. The concept of the rotating and flying picket was foreign in the industrial atmosphere previous to 1906. I think that if the noble Lord, Lord Shinwell, were in his place we could have another instance of that remarkable moment on Tuesday when he reminded us that the Committee of the House of Lords was considering a Bill and he had been a member of a trade union before the legislation of 1906.
However, the noble Lord, Lord Wedderburn, wants to take out subsection (2) of Clause 15. That is the very subsection which gives the clause its "teeth"—to use a word that I used in the last debate
646
to my noble friend Lord Harmar-Nicholls—by removing from secondary pickets the immunity from civil action for interference with contracts. That really draws us—especially as the dinner hour is near—into the region which we shall be debating under Clause 16 in the next major series of debates.
The consequences of withdrawing the Section 13 immunity will be dealt with when Clause 16 is debated. However, what we are concerned with here is giving teeth to a restriction of picketing to a worker's own place of work. That is the central issue of picketing in the Bill and, indeed, in our general policy towards it. The only way in which we can provide such teeth—given the historical development of union history and industrial relations law about which the noble Lord, Lord Wedderburn, and I agree—is by withdrawing the Section 13 immunity. If Section 13 were not withdrawn entirely, employers would not have grounds on which they could seek injunctions in civil law, and that is what we are trying to achieve.
So, I go back to the issue that, behind the bravura and the interesting and historically-informed speech of the noble Lord, there was concealed the desire to go back to a situation where there is a free run for pickets to go where they like and to spread the disruptive effects of a dispute far and wide to other industries, and, indeed, to the community as a whole. That is not tolerable to us and that is why we must ask him to withdraw his amendment.
Lord WEDDERBURN of CHARLTON: I thank the noble Earl. I must postpone my disagreement with him about history and the history of picketing which has seen many things which he says it has not seen. I do not agree with him about the justice or efficacy of the clause and my noble friends and I insist on pressing our amendment.
6.53 p.m.
On Question, Whether the said amendment (No. 77H) shall be agreed to?
Their Lordships divided: Contents, 45; Not-Contents, 99.

CONTENTS

Ardwick, L.

Janner, L.

Pitt of Hampstead, L.

Balogh, L.

Kaldor, L.

Ross of Marnock, L.

Birk, B.

Leonard, L.

Stewart of Alvechurch, B.

Blyton, L.

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

Stewart of Fulham, L.

Boston of Faversham, L.

Stone, L.

Bruce of Donington, L.

Lockwood, B.

Strabolgi, L.

Collison, L.

Longford, E.

Taylor of Mansfield, L.

David, B. [Teller.]

Lovell-Davis, L.

Underhill, L.

Davies of Leek, L.

McCarthy, L.

Wall, L.

Gaitskell, B.

Milner of Leeds, L.

Wallace of Coslany, L.

Galpern, L.

Noel-Baker, L.

Wedderburn of Charlton, L.

Goronwy-Roberts, L.

Northfield, L.

Wells-Pestell, L.

Gosford, E.

Oram, L.

Whaddon, L.

Hale, L.

Peart, L.

Wootton of Abinger, B.

Hatch of Lusby, L.

Phillips, B.

Wynne-Jones, L.

Heycock, L.

NOT-CONTENTS

Alexander of Tunis, E.

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

Norfolk, D.

Amherst of Hackney, L.

Northchurch, B.

Amory, V.

Halsbury, E.

Nugent of Guildford, L.

Ampthill, L.

Hankey, L.

Nunburnholme, L.

Auckland, L.

Harris of Greenwich, L.

Orkney, E.

Bellwin, L.

Harvington, L.

Orr-Ewing, L.

Belstead, L.

Hawke, L.

Pender, L.

Berkeley, B.

Henley, L.

Rawlinson of Ewell, L.

Bledisloe, V.

Hives, L.

Redmayne, L.

Boothby, L.

Home of the Hirsel, L.

Reigate, L.

Boyd-Carpenter, L.

Hornsby-Smith, B.

Renton, L.

Braye, L.

Hylton-Foster, B.

Robbins, L.

Cairns, E.

Keith of Castleacre, L.

Rochdale, V.

Caithness, E.

Kemsley, V.

Rochester, L.

Cathcart, E.

Killearn, L.

Romney, E.

Cockfield, L.

Kinloss, Ly.

Rugby, L.

Colwyn, L.

Lauderdale, E.

St. Aldwyn, E.

Craigmyle, L.

Lindsey and Abingdon, E.

Sandys, L. [Teller.]

Croft, L.

Long, V.

Savile, L.

Cullen of Ashbourne, L.

Lucas of Chilworth, L.

Seear, B.

Davidson, V.

Lyell, L.

Soames, L. (L. President.)

de Clifford, L.

MacAndrew, L.

Spens, L.

De La Warr, E.

McFadzean, L.

Stamp, L.

De L'Isle, V.

Mackay of Clashfern, L.

Swansea, L.

Denham, L. [Teller.]

Macleod of Borve, B.

Torphichen, L.

Drumalbyn, L.

Mansfield, E.

Trefgarne, L.

Ellenborough, L.

Marley, L.

Trenchard, V.

Elphinstone, L.

Massereene and Ferrard, V.

Tweeddale, M.

Elton, L.

Milverton, L.

Vickers, B.

Fairfax of Cameron, L.

Monson, L.

Vivian, L.

Fortescue, E.

Morris, L.

Ward of Witley, V.

Gowrie, E.

Mottistone, L.

Wise, L.

Greenway, L.

Mowbray and Stourton, L.

Young, B.

Gridley, L.

Resolved in the negative, and amendment disagreed to accordingly.
The Earl of GOWRIE: I think that it might be convenient to adjourn for dinner at this stage, so I beg to move that the House do now resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

POOL COMPETITIONS ACT 1971 (CONTINUANCE) ORDER 1980
7.2 p.m.
The PARLIAMENTARY UNDERSECRETARY of STATE, HOME OFFICE (Lord Belstead): My Lords, I beg to move that the draft Pool Competitions Act 1971 (Continuance) Order 1980 be approved. It may be helpful if I refer briefly to the Act which the draft order is to renew, if your Lordships agree to this order.

649
The competitions with which the 1971 Act is concerned are competitions for prizes based on the outcome of sporting events, especially football matches, and the proceeds from these competitions go in support of charities or sports. The Spastics Society and some cricket and football clubs are examples of bodies which have derived substantial income from this source. The competitions are not the same as commercial football pools. Competitors usually hold a permanent selection of numbers which are assigned each week to football teams and winners are determined by reference to the results of the matches.
A judgment by your Lordships' House in 1970 held that a competition of this kind did not constitute lawful pool betting, as had been supposed, but was an unlawful lottery. This was because the prizes were not for making forecasts but for holding numbers which happened to be lucky in a particular week.
The difficulty which followed from this judgment was that the charitable and sporting organisations, which had been deriving quite large sums of money for worthy causes by this method, would have lost a considerable source of income if the competitions had been forced to cease. The Pool Competitions Act 1971 was, therefore, passed to enable organisations already promoting competitions to continue to do so within a system of licensing and control established under the Act and administered by the Gaming Board for Great Britain.
The Gaming Board exercises its powers under the Act to safeguard the interests of the competitors and to secure continued financial benefits for societies named in certificates granted under the Act. Although the number of bodies relying on the 1971 Act to protect their fund-raising activities has declined, several continue to place substantial reliance on these competitions for their income.
The Act was a temporary measure. It was to run for an initial period of five years, but it contained provision for its extension by an order, approved in draft by resolution of each House of Parliament, for up to a year at a time. It has been so extended on four previous occasions, and the purpose of the draft order before the House this evening is to extend the Act for a further period of one year.
650
Your Lordships may recall that the previous extensions were made while the Report of the Royal Commission on Gambling, whose terms of reference covered these pool competitions, was awaited and considered. It is true that in its final report, which was published in July 1978, the Royal Commission recommended that the Act should be allowed to expire in July 1979. But the charitable and sporting organisations which would have been affected were naturally concerned by the Royal Commission's recommendation that the Act should be allowed to expire, and in view of the difficulties which expiry of the Act would have caused these organisations, an extension of the Act for a further year was approved last year.
Therefore, the present position is that without a further renewal order the Act will expire on 26th July this year. When the Royal Commission's report was debated in another place on 29th October last year, my right honourable friend the Home Secretary said that he hoped it would be agreed that the best way to deal with the matter would be to continue the Act in force until Parliament had decided what changes should be made in the law on lotteries.
I cannot, of course, give an undertaking to the House this evening as to exactly when we may be able to bring forward legislation. But I should like to say this in concluding these opening remarks. My right honourable friend is currently preparing for presentation to the House draft regulations relating to certain of the Royal Commission's recommendation on lotteries. My right honourable friend is also considering the case for increasing the monetary limits applicable to lotteries. Some of the Royal Commission's recommendations on lotteries could not, however, be implemented without amendment of the law and, as I say, I am not able to give an undertaking as to when the law may be changed.
But it is the intention of my right honourable friend to invite representatives of the charitable and sporting bodies concerned to discuss with the Home Office the scope for a permanent and satisfactory resolution of the temporary arrangements for which the 1971 Act provides and which this extension order will, for the moment, continue. Bearing in mind the valuable

651
work funded by these competitions, I hope, as I have attempted to show, that as my right honourable friend is being active in thinking about the future of this matter, your Lordships will meanwhile agree, by approving the draft order, that the Pool Competitions Acts 1971 should be extended for a further year.
Moved, That the draft order laid before the House on 21st May, be approved.—(Lord Belstead.)
7.8 p.m.
Lord BOSTON of FAVERSHAM:My Lords, I join with the Minister, the noble Lord, Lord Belstead, in supporting this order and I should like to thank him for explaining it to your Lordships so clearly. I agree with the points that he has made about the need for this order and, indeed, I think that it would be a little inconsistent of me to do otherwise, because it is the case that my noble friend Lord Wells-Pestell had occasion to move similar orders from the Despatch Box of the noble Lord the Minister, while the last Government were in office.
As the noble Lord the Minister has indicated, there is concern among charitable bodies about what would happen to their income and, indeed, about their chances of survival if this order were not passed or if some similar provision was not made to replace it. This week I received a letter from the Spastics Society—and the noble Lord, Lord Belstead, has referred to the society in his opening remarks—which said that:
"If the Spastics Pools were no longer allowed to operate, The Spastics Society would lose about £800,000 in 1980 alone".
It is of significance that I understand that one-fifth of the Spastic Society's income from general fund-raising comes from pool competitions, and that other charities, such as Action Research for the Crippled Child, derive almost one half of their income from similar pool competitions.
The Spastic Society's letter goes on in this way:
"The uncertainty about the future of the pool competitions has already caused the income they previously provided to drop off. This, and the demands on the Society which constantly outstrip its resources, has caused the Society to give great thought and effort to the development of alter-
652
native sources of income. From this experience it is very clear to the Society that it has no prospect of ever recouping the income it will lose if the Spastics Pools can no longer legally operate.
"The effects of inflation and the frequent reference to the expanded role the Government hopes to see the voluntary sector play in filling the gap left by reduction in social services, are causing deep concern to organisations such as the Spastics Society who are under threat of losing one of the most important means of income. The Society, despite considerable efforts, is aware that it has no means of making up that income it stands in danger of losing from the loss of the pools, and no means of avoiding the inevitable consequences of a reduction in the services and support we can offer disabled people".
No doubt there are other bodies which could make similar observations. I have referred to the Spastic Society only because it was that body which happened to take the initiative in writing.
We are now fast approaching the time when we should deal with this matter on a more lasting basis, and your Lordships will have been interested to hear what the noble Lord, Lord Belstead, had to say about the representations which have been invited and about the talks which are to take place, and I would certainly welcome that development. I quite understand that he is not able to give any firm indication about the sort of measures that might be placed before your Lordships, but it is encouraging and I welcome what he has had to say, that the Government are at any rate moving in that direction. In the meantime, I simply join in urging your Lordships to support this order.
7.12 p.m.
Lord BELSTEAD: My Lords, may I merely express my gratitude to the noble Lord for the support he has been good enough to give me. I think that it was a nice touch that his colleague, the noble Lord, Lord Wells-Pestell, who, as the noble Lord said, had been responsible for introducing this order previously when the last Government were in office, is in your Lordships' Chamber this evening listening to this short exchange of remarks.
The noble Lord, Lord Boston, in his remarks mentioned one of the organisations which is able to continue its operations of this kind under the 1971 Act and under the provisions of these orders, namely the Spastics Society, and the concern which that particular society had expressed regarding uncertainty for

653
these sort of competitions. It might be for the convenience of your Lordships before we end this debate if I said that in the course of the debate in the House of Commons my honourable friend the Parliamentary Under-Secretary at the Department of the Environment, who has responsibility for sport said, in winding up the debate on the Royal Commission's Report, that the Government had no intention of allowing the 1971 Act to lapse until Parliament had had an opportunity to decide in the context of lotteries legislation what changes would be appropriate.
I was grateful to the noble Lord, Lord Boston, for giving a welcome to the idea that my right honourable friend's department, the Home Office, should meet with the organisations which promote competitions under the Pool Competitions Act. I am sure that this is a sensible thing to do ahead of any legislation. Certainly I know that my right honourable friend's department will be doing that. With those few additional words, I beg to move that this order be approved.
On Question, Motion agreed to.
[The Sitting was suspended from 7.15 p.m. to 8 p.m.]

EMPLOYMENT BILL
House again in Committee.
8 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 77J:
Page 18, line 12, after ("in") insert ("subsection (1) of").
The noble Lord said: I am aware of the hour and I shall therefore move this amendment speedily with three points to which the Government have not yet given an answer. If the defences of Section 13 were removed from the pickets only to the extent of subsection (1), certain liability would not arise. The most important in trade disputes would be simple conspiracy to injure, on which I commented in dealing with the last amendment. The next most important, perhaps the most important of all, would be no liability in respect of interference with trade as such, and other open-ended liabilities of the kind Lord Scarman
654
spoke of in the recent steel case when he said:
"Open-ended expressions bring judges inevitably into the industrial arena, exercising a discretion that may well be misunderstood by many and which can damage confidence in the administration of justice".
And thirdly, the most important of all: the removal of Section 13(3) could mean that where those who are unlawful pickets join those who are lawful pickets on the same picket line, the lawful picket could themselves, by joining with those who are using unlawful means without the protection of subsection (3), lose their protection as lawful pickets.
I accept what the Government said in another place, that such liability could not arise "simply by association". But as the Government accepted, if they in any way combine with the unlawful pickets—if there were in any way a combination with the unlawful pickets—then, without the protection of subsection (3), there would be the use of unlawful means and a conspiracy to use unlawful means. On that basis, especially because of the third point—and I hope the Minister will answer all three—I urge the amendment very strongly.
Lord MACKAY of CLASHFERN: In my submission, the main disadvantage of the amendment is the uncertainty it would create. At present, the affect of subsection (2) of the clause is quite clear. It says in effect, "If someone pickets other than at his own place of work, he forfeits the immunities provided by Section 13 of the Trade Union and Labour Relations Act 1974". That is perfectly straight-forward. I accept that the main immunity is that for inducing a breach of a contract conferred by Section 13(1). It is that subsection which is nearly always at issue in these cases. But if we were to accept the amendment, we should be creating the impression that Parliament intended some immunity to remain under Section 13 for secondary picketing without specifying what that immunity was.
I am sure the noble Lord will agree that Section 13(1) is unquestionably the most important part of the section; indeed, I think that was implicit in what he said. So far as the other immunities are concerned, the Government's position is that we see no reason why people who are outside the licence, as I think the noble Lord

655
called it, of the new picketing section should enjoy any immunity at all. We doubt whether Section 13(3) is left with any substance in present circumstances, but even if it does have substance, we cannot see any reason why pickets who are outside the protection of lawfulness should enjoy that. So far as discretion is concerned, this does not appear to me to be the kind of discretion that Lord Scarman was referring to in the case cited.
As for the point about conspiracy, we take the stand strongly that merely to be in company with persons who were not, what I might call, licensed or qualified pickets, would not of itself involve the licensed people in being guilty of conspiracy. It is only if lawful pickets actively invite or encourage outsiders to join them in picketing that they may run the risk of losing their own immunity, and if they do that—if they do in fact conspire—we do not see any reason why they should enjoy immunity. Accordingly, I ask the Committeee not to agree to the amendment.
Lord WEDDERBURN of CHARLTON: I am disappointed by the noble and learned Lord's answer. There are many points of detail one could debate, but I will restrict myself to the major point, which is the reason why I must say that we will not feel able to withdraw the amendment. Let me make it clear that it is no part of our argument on this, or indeed on any other, amendment to the clause that the unlicensed picket should be covered by the immunity, although we think the ground the Government are traversing on that is unwise, but we are not arguing that on this amendment.
We are saying that the liability which can be encountered by lawful pickets, in particular in regard to conspiracy to injure and also in particular the use of unlawful means or the combination to use unlawful means, is quite unfair to those whom the Government purport to protect under this Clause. I noted with care the noble and learned Lord's words. It is true, I accept, that merely to be in company with another person is not to combine with him, but I take issue with him that combination starts only at the point—I think I have his words exactly—where someone actively invites or encourages another to come and join
656
with him. There is an area of territory in between where the law of conspiracy quite plainly begins to operate, and that is where there is a combination which is less than invitation or encouragement but which is still a combination. It is therefore possible, and might be quite common, for lawful or licensed pickets unintentionally to lose their protection by merely joining with activities of unlicensed pickets. Although we will not divide on the amendment, we press it on the Government and we cannot withdraw it.
The LORD CHANCELLOR: I would just tell the noble Lord that conspiracy consists in agreement.
Lord WEDDERBURN of CHARLTON: I entirely accept what the noble and learned Lord says; there is, of course, the element of agreement. What I was answering in the Lord Advocate's argument was that agreement necessarily implied active invitation or encouragement. There are many cases, which I am sure the noble and learned Lord will accept, where combination has consisted in an agreement which did not begin with the invitation or encouragement by one of the conspirators, but the acceptance by him, as it were, of an invitation from the others.
The LORD CHANCELLOR: Guilt by association is not an agreement, and with great respect I think that the noble Lord is chasing his own tail. Regardless of whether my noble and learned friend was right or wrong in describing the point at which conspiracy begins, if there is no agreement, there is no conspiracy.
Lord WEDDERBURN of CHARLTON: I entirely accept what the noble and learned Lord says, as indeed one would have to; those words are obviously unexceptionable. But if the noble and learned Lord accepts the authority of, for example, the case of Huntley v. Thornton, he will see an instance of persons who were on one side or the other of the line. Two defendants were not parties to the conspiracy; four were. But among the four certainly not more than one or two actually encouraged or invited the combination. Agreement begins at a different point from invitation or encouragement. Therefore, I maintain my stand

657
that the lawful pickets might well be affected short of inviting the unlicensed pickets on to their picket line, and, not being lawyers, might well unintentionally do things which rendered them liable for matters for which the clause appears not to make them liable.
On Question, amendment negatived.
8.11 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 77K:
Page 18, line 13, leave out ("picketing") and insert—
("attendance at or near a place in contemplation or furtherance of a trade dispute.")
The noble Lord said: I shall try to be equally brief upon this matter, and I hope that we can join issue on the central point and perhaps not engage on too long a search for authorities. The essential case of my noble friends and myself on this point is a very simple one. The term "picketing" is not a term of art in law. It is true that the Government have used the word "picketing" as the side note of the new Section 15 as proposed in Clause 15 of the Bill, but the term of art of "picketing" is unknown to the law.
Every time that the law has spoken of picketing, from 1875 until today, it has spoken in terms of "attendance". It has spoken in fact in terms of attendance in contemplation or furtherance of a trade dispute. The point is an important one, because in subsection (2) all the civil liabilities attend upon trade unionists and their rights are deprived where in the course of picketing they do certain acts.
In the same clause the words attending "at or near" a place are used. I take it that noble and learned Lords would not dispute with me the fact that where Parliament, in the same section, indeed in the same Act, uses two different words, it is the right and proper approach for the courts to investigate and perhaps to presume that the Legislature intended slightly different things because it did not use the same words.
The issue, for example, arises whether or not those who might otherwise be picketing would leave perhaps notices or placards—sometimes known as "ghost" picketing in certain industries—or would otherwise leave communications at a place of work. It is perfectly possible
658
on the understanding that I have and on that of a number of those with whom I have discussed the matter and who are more experienced than myself in statute interpretation, that the word "picketing" in subsection (2) could, and perhaps should, be interpreted as meaning something more than attendance.
The noble and learned Lord's right honourable friend in another place said that that was not the intention of the Government. He said that it is not picketing if pickets themselves are not present. If it is not picketing when pickets themselves are not present, we ask the Government to clarify the position for workers who, in any event, will have enough trouble understanding this law, by putting in place of the word "picketing" the words of the amendment:
"attendance at or near a place in contemplation or furtherance of a trade dispute."
If that is what is meant by picketing, let the clause say so. If the word "picketing" remains, it will mean something different, and indeed to the courts it will surely mean something wider. I beg to move.
Lord MACKAY of CLASHFERN: We have used the words "in the course of picketing" in this clause because they express neatly and precisely what we want to achieve. Our aim is to remove immunity from pickets who in the course of picketing other than at their own place of work induce a breach of contract. We are not concerned in this clause with people who attend at a place of work for some other purpose; and this really is the point. We are advised that if we use some formula other than "in the course of picketing", such as the one suggested in this amendment, we might by mistake restrict activities other than picketing; for example, the right of a shop steward from a particular factory to address a meeting of workers at the gates to another workplace. In other words, we have used "in the course of picketing" in order to reduce the chances of misinterpretation.
We have not defined picketing in the clause because we think it unnecessary. We are aware of course that the word "picketing" has not previously been used in statute, other than in a marginal note, and when the noble Lord refers to the

659
law, I assume he means statute law. But it has long since passed into common parlance. I should have thought that the Shorter Oxford English Dictionary meaning of the word is fairly precise. The courts themselves have used the term on occasions. In the case of Lyons v. Wilkins, Lord Justice Smith referred to
"what is ordinarily understood by picketing".
In the case of Torquay Hotel Company v. Cousins, to which the noble Lord has referred on several occasions, the words of the order which granted the restraint included the phrase:
"picketing at or near the entrance or entrances of the Imperial Hotel for the purpose of persuading drivers of oil tankers not to deliver fuel oil there".
I am sure that the noble Lord will agree with me that precision is demanded to a very high standard in words in an injunction. If the phrase was good enough for an injunction, it must be good enough for us. I would ask the Committee not to accept the amendment.
Lord WEDDERBURN of CHARLTON: Perhaps it is necessary for me to say a little more than I said earlier. Perhaps in the interests of speed I did not put the case as fully as I should have done. I shall put it in terms of a reply, if I may. First, by saying that the possibilities of liability might be wider if our formula were inserted, was not in my submission justified by the example—and the only example—that the noble and learned Lord the Lord Advocate gave. Attending to address a meeting at or near the place might or might not be lawful, whether or not the word "picketing" was used, whether or not the word "attendance" was used. We all agree that if it amounted to an obstruction, it would not be lawful in that sense, on the highway, anyway. So that seems to make no difference one way or the other.
So far as the case of Lyons v. Wilkins is concerned, I am slightly alarmed by the Government relying upon that case which went twice to the Court of Appeal and in which I well remember Lord Justice Lindley saying that you cannot make a strike effective without doing more than is lawful. I should have thought that remarks made in Lyons v. Wilkins were highly undesirable guides to the modern law on picketing, even under this Bill.
660
Finally, so far as the case of Torquay Hotel Company v. Cousins is concerned, I am not sure of the conventions of your Lordships' Chamber. I was in certain ways concerned with this action, and I wish to say merely that the order in that case is still reasonably fresh in my mind, and if one looked at the pleadings one would see perfectly clearly that the order of the court was plainly made within the terms of the facts and pleadings in that case. I accept that the word "picketing" was used, but the meaning of the word "picketing" was absolutely clear in that case because of the facts and pleadings placed before the court. That is quite different from using the word in a statute.
The noble and learned Lord did not at all answer the point as to whether leaving a placard at a place would, in the Government's view, be picketing. The noble and learned Lord's right honourable friend in another place said that it would not be picketing; but the noble and learned Lord did not say anything about it. It is a matter of great concern to the trade union movement. If our amendment does not get the words right, I press upon the Government the need to reconsider the word "picketing", because I infer from the noble and learned Lord that there are matters other than attendance which would give rise to liability. If there are matters other than attendance which could give rise to liability, the trade union movement is entitled to know what they are.
At this point I think it would be right, in view of the hour, to beg leave to withdraw the amendment, but in so doing to ask the Government to reconsider the matter for the Report stage, and to say that we shall certainly return to it on Report if no proposals are made from them. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
8.19 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 77L:
Page 18, line 17, at end insert—
("(4) Nothing in subsections (1), (2) and (3) above of this section shall affect criminal liability; and accordingly, for the purpose of such liability, it is hereby declared that it shall be lawful for one or more persons in contemplation or furtherance of a trade dispute to attend at or near—

661

(a) any place where another person works or carries on business; or

(b) any place where another person happens to be, not being a place where he resides,

for the purpose only of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working.").
The noble Lord said: This is an amendment of very great importance, and I trust that your Lordships' Committee will accept that it needs a few moments of time. It is concerned with the argument about the extent to which the amendments of picketing law involve new criminal liabilities. In order to be speedy but accurate, I shall try to pick my words with great care.
The position of the Government, as we understand it from the debates in another place, is that this Bill will not create additional criminal liabilities. In saying that, I am conflating a number of quotations, which I have in my notes, from Mr. Mayhew and the right honourable gentleman the Secretary of State—no new criminal liabilities.
Amendments were moved in another place which tried to make that more clear. They were not acceptable to the Government, and the last ones, on Report, were not acceptable largely on drafting grounds. We therefore thought very carefully about the character of the amendment which could, and should, be moved. The one we have put down may be described as re-enacting for the purposes of the criminal law the old section on picketing, leaving the Government with their new clause and their new section for the purposes of civil law.
The argument about the criminal law is to what extent the old section on picketing, which has been there since 1906—and I take it that the noble and learned Lord would accept that the courts have treated Section 2 of the 1906 Act, Section 134 of the 1971 Act and Section 15 of the 1974 Act as effectively the same—has been effective in giving any protection against criminal liability. In the view of many people it has not. There was a time at which I tended to that view myself. However, I thought that I should revise my view when I read in the leading case of Hunt v. Broome in 1974 the remarks and dicta—and they are dicta, but very authoritative dicta—of the noble and learned Lord, Lord
662
Reid, and the noble and learned Lord, Lord Salmon. I feel bound to repeat their actual words very briefly.
The noble and learned Lord, Lord Reid, was speaking about a case in which a building union official attended for a few minutes in front of a lorry and obstructed it, and was convicted of wilful obstruction of the highway. In the course of that hearing the noble and learned Lord, Lord Reid, said this at page 92 of the Industrial Cases Reports for 1974:
"Attendance by one or more persons on a highway must inevitably cause some obstruction of the free passage along the highway, and were it not for Section 134 the appellant would, by attending for the purpose of persuading Dickinson"—
that is, the driver—
"not to do what he was employed to do, undoubtedly have committed an offence against Section 121 of the Highways Act".
He then discusses whether the section is meaningless or whether it does in fact protect.
The noble and learned Lord, Lord Salmon, is more positive. Lord Salmon said this about the section—the same as the 1906 and the 1974 sections, in effect. At page 96 he said:
"The section gives no protection in respect of anything the pickets may say or do whilst they are attending if what they say or do is itself unlawful.
"But for the section, the mere attendance of pickets might constitute an offence under Section 7(2) and (4) of the Act of 1875"—
I pause to note that the noble and learned Lord will of course be aware that that relates to the offences of persistent following and watching or besetting unlawfully and without authority—
"or under the Highways Act 1959"—
that is, wilful obstruction—
"or constitute a tort, for example, nuisance. The section therefore gives a narrow but nevertheless real immunity to pickets. It clearly does no more".
In that narrow and real immunity the noble and learned Lord, Lord Salmon, has included three criminal liabilities. If, therefore, it is the Government's case that they wish to do nothing that will increase the area of criminal liability, they cannot allow the clause to constrict the places at which people will picket and encounter that criminal liability. It follows as night the day that if the clause affects the position in regard to the legality

663
of picketing, if the noble and learned Lords, Lord Salmon and Lord Reid, are right, then the criminal law is affected as well.
Indeed, among the many quotations that I would wish to read the Committee of the right honourable and learned Attorney-General in his statements to the House of Commons on 19th February and 18th March, I may perhaps take just one, where, with great respect, I accept that the Attorney-General sets out the position very fairly for all schools of thought, because there is more than one school of thought upon this matter. If I may read him at column 1348 on 18th March, I quote him as saying this:
"…if there were an obstruction under the Highways Act, where it was a lawful picket, it is open to argument that section 15 might provide immunity. Some say that section 15 is declaratory; others say that it would go further and provide an immunity in that case. But whatever the precise legal effect of section 15, its practical consequences are not in doubt. It confers no immunity from prosecution for obstruction in the sense in which that term is normally understood: that is, physically preventing a person from going where he wants to go, not only into the works, but also along the pavement to the other end of the road. If pickets go beyond peaceful persuasion and obstruct the passage of workers or vehicles, everyone knows that there is no protection for that sort of act".
Now, accepting that for the moment and not quarrelling with it (although I could in terms of very small detail), there are two schools of thought, and one is that the old sections on picketing provided a narrow and real protection against criminal liabilities. The noble and learned Lord, Lord Salmon, is one of that school of thought. The noble and learned Lord, Lord Reid, appears to think that that school of thought is at least as arguable as the opposite. Therefore, we say that if the Government are to be true to their word, if the Government are to honour their pledge that no new area of criminal liability will be created, the only way to do it, or at least a way to do it—we do not claim to have the only solution; if the Government have an equally good one, we are naturally happy to accept it—is to enact the old section for the purposes of criminal law, leaving the Government with their new clause for civil law. Our amendment is carefully drafted in one sense, in that we merely restate precisely that section which has been there since 1906 and which trade unions had to work very hard to obtain, in terms that it applies
664
only in the area (and I hope we have made this clear in our draft) of criminal law.
If the Government cannot enact something of this kind, it follows from the statements of the Attorney-General and Lord Salmon and Lord Reid, and indeed others who, in view of the hour, I am not quoting, that there is at least an arguable case—I would say there is a clear case, but there is at least an arguable case—that criminal liability is affected. If the Government are unable to stand up and say that there is no arguable case—disagreeing, thereby, with one school of thought accepted as possible by the Attorney-General, and disagreeing, thereby, with the noble and learned Lord, Lord Salmon, and it seems possibly Lord Reid as well—then the Government must surely accept some amendment to set out clearly that which they say themselves they want to do. I beg to move.
8.25 p.m.
Lord MACKAY of CLASHFERN: In our submission, this is a misleading and potentially dangerous amendment. Section 15 of the 1974 Act and Clause 15 of the Bill, which would amend that section, are concerned with the civil law, not, in our submission, with the criminal law. As the Attorney-General said in another place in a Statement on 19th February which was repeated in your Lordships' House by my noble and learned friend the Lord Chancellor, and with which I agreed as representing the principles of the law of Scotland:
"… the law on picketing does not, in any real way, change the criminal law and in no way diminishes the rules which govern public order. The criminal law of the land applies to pickets as it does to anybody else. Let there be no illusion that the immunity provided under the civil law enables pickets to break the criminal law".
Section 15 of the 1974 Act states that it is lawful for someone to attend at or near a place of work,
"for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working".
If a picket goes beyond such peaceful behaviour, the law affords him no protection. The law, we would submit, is quite plain on this point. Everyone has the right to go about his work free from interference by anyone else. If anyone tries to prevent someone else from exercising those rights—for example, by the use or threat of violence, intimidation or obstruction—he is breaking the law.

665
The noble Lord has expressed concern that Clause 15 might increase the likelihood of criminal prosecutions of pickets, particularly, I think, for obstruction. As he has said, the view has been put forward that Section 15 of the 1974 Act provides some immunity for pickets to commit offences, notably obstruction. However, my right honourable friend the Attorney-General, who advised the Standing Committee in another place, stated quite clearly that Section 15 does not confer any substantive immunity for the offence of obstruction in the sense in which it is generally understood; namely, physically preventing a person from going where he wants to go. Nor does a picket need any criminal immunity, since if he merely stands on the pavement or on the side of the road without interfering with the rights of others to pass and repass, and peacefully communicates information, perhaps by holding a placard or by speaking, or tries to persuade others not to enter their place of work, he is not committing an obstruction even in the technical sense.
This amendment, however, would force the courts, we would submit, to look for some substantial criminal immunity enjoyed by pickets, which in reality does not exist and was not intended by Parliament to exist when Section 15 and its predecessors were enacted. We would think the law reasonably clear on this aspect at present, and this amendment, we would say, would throw it into confusion. Therefore, we would invite the Committee to reject it.
It is fair to say, in view of the observations quoted from Hunt v. Broome, that one must take the remarks of the learned judges in the context of the case with which they were dealing. That was a case where obstruction was committed by the pickets stepping out in front of a lorry, preventing it from passing into the works.
Lord DAVIES of LEEK: I have tried to follow this. It has been a brilliant debate. For those of us who are laymen, it is difficult to follow every phrase. But I cannot agree completely because the current law on picketing (up to now, before this Bill becomes an Act of Parliament) is, in my estimation, and in that of the trade union movement and other movements, defined in Section 15 of the Trade Union (Labour Relations) Act 1974,
666
amended by the 1976 Act and the additional Section 13 of the 1974 Act, as amended. I find that various items have been questioned in the courts and that the High Court itself was not sure of the conclusions. It is agreed in the trade union movement that is knowledgeable, by academics and scholars and by the rank and file of the movement who understand it in practice, that there is obscurity here and that it needs clarifying.
Lord WEDDERBURN of CHARLTON: We cannot accept the noble and learned Lord's interpretation. In the interests of time, I am being pressed hard not to take issue with him. I do not accept his explanation that Lord Justice Salmon in Hunt v. Broome makes it clear. With respect, it is wrong in law. We shall not divide on this amendment but will divide on the Motion that the clause stand part of the Bill.
On Question, amendment negatived.
[Amendment No. 77M not moved.]
On Question, Whether Clause 15 shall stand part of the Bill?
8.32 p.m.
Lord McCARTHY: The Government would not expect us to allow this clause to go through without opposition. The clause is designed to limit picketing to the place of work and to limit the role of trade union officials. We have tried to argue in the series of debates on our amendments that there is no case for this and we have sought to suggest, in particular in respect to limiting the role and scope of the trade union officials, that this is not in the Government's interest even given the general purposes of their Bill. Nothing has been given us on these points. All these amendments have been moved. Nothing has been promised. Therefore, at this stage, despite the time of night, we must force this matter to a Division.
I should like to say in conclusion that nobody should get the idea—and I have said this repeatedly, as has my noble friend Lord Wedderburn—that in voting in this way and in forcing a Division we are condoning or doing anything other than deploring violence on picket lines or intimidation, or watching or besetting, or any aspect of picket behaviour which is unlawful and has always been so. We

667
are arguing that the Government proposals will not help but will give rise to all kinds of new liabilities, including criminal liabilities; and therefore it falls to us to divide the Committee on this clause.
Lord RAWLINSON of EWELL: Before my noble friend replies, I should like to say, having had some responsibility at some time in respect of advising Her Majesty's Government of that time on these matters, that I have absolutely no doubt whatsoever that this clause is a very useful addition and an important one. I am glad that Her Majesty's Government are going to insist upon Clause 15 standing part of the Bill.
The Earl of GOWRIE: The noble Lord, Lord McCarthy, said that the Committee would not expect him to let this clause go through without a Division. Having heard the whole debate, and having heard especially the substantive contributions of the noble Lord, Lord Houghton of Sowerby, and the noble Baroness, Lady Burton of Coventry, speaking from the side of noble Lords opposite, I should have thought that the wisest thing they could do would be to let the clause—not particular amendments—go through without Division. They are out of touch with the mood of the Committee, let alone with the mood of the country, on this issue. Flying pickets, secondary pickets, whatever you call them, are inherently intended to frighten. In substance, those were the words of the noble Lord, Lord Houghton. They are inherently intended to frighten both the workers concerned and the general public—which is why they are so objectionable and why we have outlawed them.
While employment legislation is concerned essentially with contracts and attempts to induce breaches of contracts and therefore with civil relationships, the cordon sanitaire and the like cited by the noble Lords, Lord Wedderburn and Lord McCarthy—and I accept that they are in no way encouraging or condoning violence—are essentially to do with criminal law.
Our contention is that what we are doing is providing redress for a deep civil wrong and a civil wrong which is liable to, and usually does, lead to wrongs in other areas and to offences. The other
668
thing I would say is this. With my noble and learned friend Lord Rawlinson, I think that one of the most pernicious aspects of picketing is what the previous Attorney-General, Mr. Sam Silkin, described in a memorable phrase as "lawful intimidation"; in other words, the threat to take away someone's union card and hence his job if he crosses a picket line. This is where the Bill's provisions on the closed shop, which we have already debated, will interact with this clause. When my noble friends look at what we are doing on secondary picketing they must take it in the context of our reforms on the closed shop.
As regards any other form of intimidation, the law is already absolutely clear. Mr. Callaghan, the previous Prime Minister, when he was Prime Minister, said:
"Everyone in this country is entitled to cross a picket line if he disagrees with the arguments that are put to him. There is nothing to stop any citizen. I would not hesitate to do it myself. I would not hesitate to cross a picket line if I believed it right to do so".
I think that the remarks of the right honourable gentlemen the Prime Minister of that time are much more congruent and nearer to the mood of the Committee this evening than anything which has been said by noble Lords opposite. That, I think, is the feeling of the public and of the country, and that is why we are determined to see that this clause should stand part of the Bill.
Lord UNDERHILL: I must say something on this, in view of the remarks of the noble Earl, Lord Gowrie. Time and time again we have had quoted to us in various debates the remarks of my noble friends Lord Houghton of Sowerby and Lady Burton of Coventry. Frankly, I will give second place to no one in my opposition to certain things that have happened in recent years. As my noble friends have said, we oppose violence and intimidation. To attempt to divide the Committee as if some of us do believe in violence and others do not—
The Earl of GOWRIE: That is not what I said.
Lord UNDERHILL: It may not have been what the noble Earl said but that was the implication. Otherwise there would be no need to refer continually to the remarks of my noble friends. I am

669
with them, and I think that all my noble friends are with them, in the remarks that they made. What we are concerned about—and I think that my noble friends on the Front Bench have made this clear—is that in our opposition to and detestation of some of the violence that has occurred, we must not create new legal impediments to proper trade union activities. My noble friends in moving their various amendments have outlined sufficient anomalies to show that there are grave dangers of this. I am not going to repeat their arguments, but there are a number of points which have arisen as to where it may or may not be lawful to carry out picketing—points of doubt
Resolved in the affirmative, and Clause 15 agreed to accordingly.
have been created by the wording of this clause. We on this side are united in our condemnation of victimisation and of any kind of intimidation; but what we must not do is to use that as an emotional excuse for doing things which might damage proper trade union activities. That is what may happen unless the position is made absolutely clear.
8.40 p.m.
On Question, Whether Clause 15 shall be agreed to?
Their Lordships divided: Contents, 84; Not-Contents, 35.

CONTENTS

Alexander of Tunis, E.

Gowrie, E.

Mowbray and Stourton, L. [Teller.]

Amory, V.

Greenway, L.

Ampthill, L.

Gridley, L.

Nugent of Guildford, L.

Auckland, L.

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

Nunburnholme, L.

Bellwin, L.

Orr-Ewing, L.

Belstead, L.

Hankey, L.

Rawlinson of Ewell, L.

Berkeley, B.

Hanworth, V.

Reigate, L.

Bessborough, E.

Harmar-Nicholls, L.

Renton, L.

Boothby, L.

Harvington, L.

Ridley, V.

Brougham and Vaux, L.

Henley, L.

Robbins, L.

Cairns, E.

Hives, L.

Rochdale, V.

Caithness, E.

Hood, V.

Rochester, L.

Camoys, L.

Hornsby-Smith, B.

Romney, E.

Cathcart, E.

Hunt of Fawley, L.

St. Aldwyn, E.

Cockfield, L.

Hylton-Foster, B.

Sandys, L. [Teller.]

Craigmyle, L.

Kemsley, V.

Seear, B.

Crathorne, L.

Killearn, L.

Sempill, Ly.

Cullen of Ashbourne, L.

Kilmarnock, L.

Spens, L.

De La Warr, E.

Lindsey and Abingdon, E.

Stamp, L.

De L'Isle, V.

Long, V.

Strathcona and Mount Royal, L.

Denham, L.

Lucas of Chilworth, L.

Torphichen, L.

Drumalbyn, L.

Lyell, L.

Trefgarne, L.

Dundee, E.

McFadzean, L.

Trenchard, V.

Eccles, V.

Mackay of Clashfern, L.

Tweeddale, M.

Ellenborough, L.

Macleod of Borve, B.

Vaizey, L.

Elton, L.

Mansfield, E.

Vivian, L.

Ferrers, E.

Massereene and Ferrard, V.

Ward of Witley, V.

Fortescue, E.

Mottistone, L.

Westbury, L.

Gainford, L.

Young, B.

NOT-CONTENTS

Ardwick, L.

Kaldor, L.

Ponsonby of Shulbrede, L. [Teller.]

Birk, B.

Llewelyn-Davies of Hastoe, B.

Collison, L.

Lockwood, B.

Ross of Marnock, L.

David, B.

Lovell-Davis, L.

Stewart of Alvechurch, B.

Davies of Leek, L.

McCarthy, L.

Stewart of Fulham, L.

Gaitskell, B.

Milner of Leeds, L.

Stone, L.

Galpern, L.

Northfield, L.

Taylor of Mansfield, L.

Hale, L.

Oram, L.

Underhill, L.

Hatch of Lusby, L.

Peart, L.

Wallace of Coslany, L. [Teller.]

Heycock, L.

Phillips, B.

Wedderburn of Charlton, L.

Howie of Troon, L.

Pitt of Hampstead, L.

Wells-Pestell, L.

Janner, L.

Whaddon, L.

Clause 16 [Secondary action]:
8.48 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 77N:
Page 18, line 18, after ("in") insert ("subsections (1) or (3) of").
The noble Lord said: There has been a certain amount of difficulty among my noble friends and myself about how to deal with a central issue in the Bill. There are four amendments which relate to a proposition which we feel we have to put to the Government: namely, that Clause 16 infringes the primary right to strike and is not restricted as the Government spokesman in another place has continually insisted to what the Government call secondary action.
The amendments are Nos. 77N, 80J, 80H and 80K. If I may explain very briefly, the subsection of the clause which is dealt with in one way or the other by these four amendments is subsection (8). Subsection (8) repeals subsection (3) of Section 13 of the 1974 Act which provides rights to workers acting in furtherance or contemplation of a trade dispute. It is our contention that if subsection (8) remains in its present form that will, over a very wide area, imperil the right to strike. Time after time the Government have insisted that that is not their intention. There are therefore two things that could be done with the clause if our argument is based upon even reasonable grounds. First, the subsection—
The EARL of GOWRIE: Will the noble Lord be so kind as to give way? I am not clear. My understanding was that we would have a debate on this very important and substantive issue on Amendments Nos. 80H, 80J and 80K. Is the noble Lord now moving the debate on Amendment No. 77N? I had the clear understanding that we would take this debate on Amendments Nos. 80H, 80J and 80K. It seems to me far more appropriate for the Committee to take it at that time.
Lord WEDDERBURN of CHARLTON: I apologise for causing the noble Earl to wait a moment before I responded; I was trying to take advice from my noble friends, who are more experienced in these matters than I. I am advised that
672
the preferable course in moving our amendments would be to press Amendment No. 77N as the substantive one, for a reason to which I was about to come when the noble Earl intervened.
I appreciate that there are certain conversations and events to which reference is not normally made in the Chamber, and the matter has not remained in the hands of the noble Earl and myself. The advice which I have received is that the most expeditious way of dealing with our case—and I trust the Members of the Committee will accept that that is what we wish—is to press this amendment for a reason which I will now explain. We believe that subsection (8), by repealing subsection (3) of Section 13, imperils the primary right to strike. There are two ways in which the matter can be dealt with. If I may put them in broad terms and then relate them to the amendments, either the repeal of subsection (8) could be related only to this section—or perhaps I should say the repeal of subsection (8) could be made to apply only to subsidiary action or the subsection could be deleted from the clause.
We understand fully the Government's objection to deleting subsection (8) entirely. I accept that if one did that there would be certain ways in which secondary action might escape civil liability, which the Government, in their own logic, do not wish to see. Therefore the following course is that which I am advised is the right one in dealing with the rather complex matter of a number of different amendments. We shall press upon the Government this amendment which we say is its own logic. If the Government do not accept it, and I expect that they will not, we shall press the matter to a Division as a matter of principle, subsuming therein the further Amendment No. 80J, which it will then be necessary only to move formally because, of course, if the Government accept this amendment they would have to accept Amendment No. 80J as well.
I begin by repeating, but without quoting every occasion, that on occasion after occasion the Government have said, and we accept them at their word in this, that it is not their intention to affect the primary right to strike. The noble Earl said it twice on Second Reading, the right honourable gentleman the Secretary

673
of State said it twice in the other place and Mr. Mayhew, the Under-Secretary of State, has said it three or four times. They have, however, never given a reasoned answer to our case that the repeal of subsection (3) imperils over a wide area—I do not say in every case—the legality of ordinary wage dispute strikes between an employer and his own workforce, be they organised in a union or not, or in contemplation of the furtherance of an ordinary trade dispute.
As I mentioned in connection with an earlier amendment, in order to save time, the three areas of tort liability which were protected by the 1906 Act—and the matter is only explicable by a brief reference to the development of the law—were simple conspiracy, interference with trade and inducing breach of contract of employment. When the Donovan Commission came to inspect the defences or rights which were given to trade unionists and workers in furtherance of trade disputes, they expressed surprise in paragraph 887 of their report in 1968 that the protection was afforded in trade disputes only to inducing breach of contracts of employment. They said:
"It is not possible at this distance of time to say why the protection afforded by Section 3"—
that is the relevant section of the 1906 Act—
"was confined to breaches of contract of employment".
The first limb of the section has its origin, as we said, in a Private Member's amendment by Sir Charles Dilke. It was an occasion which led to the first parliamentary "demo", when the Unionist Members walked out at 11 o'clock on Friday night, and all your Lordships no doubt trust that that event will not recur, and that indeed such an hour will not recur.
The report goes on:
"The contracts of which trade union officers were most likely to induce a breach were contracts of employment and the cases decided in the courts against trade unions seemed to be cases of that kind".
It may therefore have seemed to Sir Charles Dilke at that time that this was a situation that called for immediate action and there was no need to go further.
The reading of debates in volumes 162 to 167 of the 1906 Bill make it clear
674
beyond peradventure that no single speaker envisaged that there was a further economic liability in terms of civil liability of that sort. But subsequently, as the Donovan Report recounts and as all the books of labour law recount, areas of the common law were discovered or developed—the new jurisprudence would say "created", but the word does not matter. New areas of liability were found in the case law which were not protected by the 1906 Act and which no one in 1906 dreamt needed protection.
The first was the liability which began in the 1950s for indirect inducement of breach of commercial contracts, beginning with the case of Thomson v. Deakin in 1952, and developing in England through the case of Stratford v. Lindley, and in Scotland through the case of Square Grip v. MacDonald, to which I have already made reference. That was the first area of liability in regard to which attention was required, and the Donovan Report recommended that the extension of protection or immunity for trade union rights should be extended from inducing breach of contracts of employment to inducing breaches of all contracts, although—and I want to be quite clear about this and not be unfair—a majority of seven to five said that although that extension should take place it should be given only to official union action and not to unofficial. I make that point deliberately because the Government's clause makes no distinction between official and unofficial action and is therefore not related to that aspect of the Donovan Report and recommendations. The Donovan Commission was clear that inducing breach of commercial contract albeit indirectly had to be protected to maintain the right to strike.
The second development was in 1969 and cases thereabouts, encapsulated so well in the comment of the noble and learned Lord, Lord Denning, in the case of Torquay Hotel v. Cousins, that the time has come when the principle of inducing breach of contract:
"…should be further extended to cover deliberate and direct interference with the execution of a contract without causing a breach".
The memorandum by the Department of Employment to the Select Committee of the House of Commons in March last spoke of the important new tort liabilities facing officials because of these developments.

675
Thirdly, in 1964 the debate which had gone on for many years, about whether there was a tort of civil intimidation beyond the threat of violence, was resolved by the Court of Appeal with the answer "No", but was overruled by the House of Lords and finally decided with the answer "Yes". The importance of that to this debate is that it was held by the House of Lords as a breach of contract for the purposes of the law of tort and not merely the law of contract—a breach of contract is unlawful between the parties of the contract. In the words of the noble and learned Lord, Lord Devlin, at page 1209, in Rookes v. Barnard:
I find nothing to differentiate the threat of a breach of contract from a threat of physical violence or any other legal threat".
That put breach of contract into the camp of unlawful means.
So far as the threat of breach of contract of employment was concerned, that was protected in the Trades Disputes Act in 1965, but it led on to the fourth discussion in the area; that is, the general development of the tort of doing harm by unlawful means, to which I referred last week in our debates, and to which I referred earlier this evening.
Indeed, the Donovan Report itself, which was accepted as authoritative on this point, took it, in paragraph 854, that the consequence of Rookes v. Barnard was not only that the tort of intimidation needed attention in trade disputes, but also,
"It has been suggested that liability for civil conspiracy might arise where a number of persons agreed together in contemplating or furtherance of a trade dispute to break their contracts of employment in combination, since they would be parties to an agreement to an unlawful act. If done by one person alone, the act, the breach of contract, would be actionable and accordingly the protection of the 1906 Act would not be available, nor would the combination be protected by the 1965 Act. This possibility is one which we think should be removed by legislation".
There were, therefore, two areas of liability based upon unlawful means. One was that, in taking action, workers broke their contracts of employment, or, indeed, interfered with commercial contracts, and that was a form of unlawful means not covered by the legislation. The second was a rather curious one, which I must put on the record. It was this. The areas that were protected in
676
the 1906 Act were rendered, in lawyer's terms, not actionable; that is to say, if someone induced a breach of contract of employment, it was not to be actionable on that ground alone.
That gave rise to a curious division of minds among two lines of judicial thinking. The first line of thought—with respect, to my mind the more logical—said that not being actionable the act of organising the strike was therefore not unlawful, and there are many dicta to that effect. The other line—before the 1970s more numerous in dicta in fact, as Mr. Justice Templeman pointed out in a judgment of 1976 in the case of Camellia Tanker v. International Transport Workers' Federation—was that, although it was not actionable, it remained an unlawful act inherently and therefore could be unlawful means for the purposes of the law of tort.
It was those two matters, the breach of contract as unlawful means in tort, Rookes v. Barnard in 1964, and the possibility and, apparently, the numerically superior view of the judiciary, that even an act that was not made actionable in trade disputes remained inherently unlawful, that caused the Legislature in 1974 to enact subsection (3) of Section 13, because subsection (3) resolved the doubts on the matter in Parliament, by declaring that neither of these should be unlawful means in the law of tort, when they were committed in furtherance of a trade dispute or contemplation of a trade dispute.
The reason for doing that was very simple, because if that had not been enacted, then a trade union official organising a strike could have his acts looked at in two completely different ways. On the one hand, he could be said to be inducing breaches of employment contracts in furtherance of a dispute, and not liable in tort because he was protected. On the other hand, on precisely the same facts, it was not only arguable, but judicially supported, that the same official could be described as interfering by the use of unlawful means; or, if you wish, conspiracy to use unlawful means, as the Donovan Report preferred, although I myself do not prefer the conspiracy argument—but it is equally arguable—and, therefore, he was liable, albeit that he acted in furtherance of a trade dispute.

677
The intention of subsection (3) of the 1974 Act was, therefore, to restore the position as it was thought to be in the 1906 Act. I hope that noble and learned Lords and noble Lords will not say that history is irrelevant to this matter, because the whole point was that the primary right to strike was established in 1906, and the primary right to strike is what the Government say they want to maintain. So that if it was necessary in 1974 to extend the language of the so-called immunities in order to maintain their substance—and in four respects, as the Donovan Report and other works have made clear, it was necessary to extend the language in order to maintain the substance—then, surely, this matter must be cleared up under this clause.
Indeed, if I may cite, finally, one judicial piece of interpretation which surely supports the view to which I am now claiming correct analysis, in the case of NWL v. Woods in 1979, the noble and learned Lord, Lord Scarman, said, speaking of the 1974 Act as amended in 1976—and I quote him from page 886 of the Industrial Court Cases Reports:
"The legislative purpose of the Act is clear, to sweep away not only the structure of industrial relations created by the Industrial Relations Act 1971 which it was passed to repeal, but also the restraints and judicial review which the courts have been fashioning, one way or another, since the enactment of the Trade Disputes Act 1906".
A little later on he said this—and this is the nub of my case:
"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".
It is our contention that if Clause 16(8) remains in its present form and, at least, is not modified in the very modest way we ask for in Amendment No. 77N, then the Government will have taken away something which is judicially recognised, recognised by the Donovan Commission, recognised by the learned works on the matter, to be necessary to maintain the primary right to strike. It will lead the Government to be in breach of the European Social Charter, which in Article 6(4) establishes the right to strike, and to which the United Kingdom Government have adhered. We therefore beg to move Amendment No. 77N, knowing that if it is accepted or carried Amendment No. 80J must go with it, because if subsection (3) is included as a limitation of the secondary action clause, then of course its total
678
repeal in Clause 16(8) must fall away as well. This is, therefore, perhaps the most expeditious way of making our case. It is our case that the clause as it stands makes the ordinary, common or garden right to strike unlawful in a large number of situations, and it is on that ground that we ask the Government to honour their own statements that they do not wish to do so. Even if this is an arguable case, some amendment of this kind must surely be accepted. I beg to move.
9.7 p.m.
The LORD CHANCELLOR: I rise to a crowded and excited Committee to answer what the noble Lord, Lord Wedderburn, has assured us is a question of principle. Until 10 minutes or so before he rose to move Amendment No. 77N, I was assured that my humble task was to reply to Amendments Nos. 80H, J and K. I tried extremely hard to follow the rapid development of his argument and I do understand that the same point is involved as was involved in Amendments Nos. 80H, J and K. I believe that to be correct.
The insertion of the words "subsection (1) or (3)" into line 18 on page 18 of the Bill is relate d solely to our proposal to repeal altogether subsection (3) of Section 13 of the Trade Union and Labour Relations Act 1974. The noble Lord, Lord Wedderburn, has somehow—I am not at all sure how—persuaded himself that in repealing subsection (3) of Section 13 of the Trade Union and Labour Relations Act 1974 he has uncovered an unholy plot by the Tory Party to prevent primary strikes of some kind, or perhaps of any kind. My first task is to assure the noble and learned Lord, Lord Wedderburn—no, he is not learned in this House although he would have been learned in the other one, I think—
Lord PEART: With respect, I do not think that the noble and learned Lord should use those words.
The LORD CHANCELLOR: I really do not know what the noble Lord is speaking about. I was corrected from behind me—and correctly corrected, and withdrew. I do beg the noble Lord, Lord Wedderburn, to believe that in the first place we are not so wicked as to try, by devious means, to do the opposite

679
of what we say we are trying to do; secondly, that we are not nearly so clever as to do it by this particular means, which nobody has thought of, so far as I know, but the noble Lord himself; thirdly, that if we were either so clever as to try to do the opposite of what we say we are trying to do and to do it by this particular means we should have done it rather more effectively than could be cured by the particular series of amendments which the noble Lord has chosen to put down.
I say, and say it again in unequivocal terms, that we are not intending to interfere with any form of primary action by the repeal in particular of Section 13(3) of the 1974 Act. We are not intending to do so, and we are advised, and believe, that we have by no means succeeded in doing so by mistake. That is the first and by far the most important and perhaps the only important thing that I have to say in this contribution to the debate.
I am trying very hard to work myself into a state of mind when I can even understand how it is that the noble Lord thinks that we have achieved this extraordinary result. So far as I can see it, the answer is dependent not upon the law of 1906 but upon the law of 1974, as amended by the Act of 1976. The Act of 1974 dealt solely with contracts of employment. I am, of course, talking about the relevant section. The Act of 1976 altered that position, for reasons which one remembers, to add to the contract of employment, in effect, commercial contacts.
So long as the Act of 1974 was valid in its original form—I am speaking about subsection (1) of Section 13—and related solely to contracts of employment, subsection (3) served a kind of useful purpose because it provided that unlawful means were not to be considered. But in our view, the advice which we have received—it is conceivable that we are wrongly advised but I do not see how we can possibly be wrongly advised, nor has the noble Lord, Lord Wedderburn, persuaded me in any way that we are—is that once the Act of 1976 was introduced to amend Section 13(1) of the Act of 1974, subsection (3) of Section 13 of the Act of 1974 was simply a floating kidney. It meant nothing and served no useful purpose.
680
It was, in fact, to use the language employed by the noble Lord, Lord Wedderburn, simply a hidden minefield. Being there and serving no useful purpose, we have been advised that if it is left floating about there, it would be to the courts of law in this country, which do their best to understand what Parliament is about, at best puzzling and at worst defeating to the purposes of Clauses 15, 16 and 17 of the present Bill. If it is left on the statute book the courts might find constructions for it which were never intended when it was first included in the 1974 Act and which deterred them from finding in favour of the plaintiffs in cases of unlawful secondary action.
It is, I think—and I really rather press this on the Committee—an important principle in legislation that redundant and superfluous provisions should be repealed at the earliest opportunity when they continue to serve no useful purpose and, in fact, mean nothing.
Lord RENTON: Hear, hear!
The LORD CHANCELLOR: I was glad to hear my noble friend Lord Renton applaud my sentiment because, as a matter of fact, what I am trying to say now, although it is not, I think, a matter of principle at all, exactly illustrates a point which he has already made about these three or four sections in an earlier connection this evening.
I agree with him that it is inconvenient not to have a Keeling Schedule unless one also has a consolidation Act. It may be that the noble Lord, Lord Wedderburn, has really been caught in the trap which my noble friend Lord Renton explained at an earlier stage. I absolutely acquit him of any desire whatever to alarm the trade union movement into thinking that there is some kind of "blue" conspiracy to defeat primary action. I am sure he does not intend to do so. He is genuinely caught in the web of his own learning and industry, hut the fact of the matter is that the thing is a great deal simpler, so we believe; and we genuinely believe it, whether we are right or wrong.
The fact is that Section 13(3), which we are repealing by Subsection (8) of the present clause, serves no useful purpose at all and is only a source of confusion

681
and will bring the law into confusion and worse.
As far as I was able to understand it, the reason underlying the thinking of the noble Lord, Lord Wedderburn, is something rather like this. If I have got it wrong, I ask noble Lords to believe that it is not because I want to get it wrong. It is because I have done my best to understand it, and if I have got it wrong I can only apologise humbly. First of all, the crucial question is whether the repeal of Section 13(3) will affect any immunity for primary action of any kind. As I have tried to explain, Section 13(1), as amended in 1976, provides, in our view, the substantive immunity for both the direct and indirect form of the torts which those taking primary action are likely to commit.
The repeal of Section 13(3) for the reasons that I have indicated does not detract from that in any way. In consequence, I feel I am safe in assuring the Committee, because I have been advised by those who are better qualified to judge these questions than I—and, so far as I can believe and ascertain, they are right—that in relation to all known torts covered in Section 13, the removal of subsection (3) will not affect the immunity for primary action. But the trouble with the noble Lord, Lord Wedderburn, is that, like some astronomers, he thinks he has discovered a new tort not previously known to science, and he seeks to discover it by a number of erudite references to various dicta and statements in various cases.
Of course, as my noble and learned friend was saying a moment or two ago, these cases have to be read in their context. Their context is extremely elaborate, and therefore one has to ask the Committee to suffer slightly in talking about them. But the truth is that the real source of this new planet—the new tort, the hitherto undiscovered tort—is a passage in Clerk and Lindsell on torts. Like Mr. Waygood and Miss Otis (who made lifts) Mr. Clerk and Mr. Lindsell have long since been gathered to their fathers and new authors have taken their place. The author of this particular passage is a certain Professor Wedderburn, who is well known and universally respected as a great authority on this subject. He states that there exists a
682
tort of uncertain ambit which consists in one person using unlawful means with the object and effect of causing damage to another.
I am bound to tell the noble Lord, Lord Wedderburn—the discoverer of this heavenly object—that, so far as the legal advisers of the Government are concerned, we do not believe that the new planet exists at all. If by any chance we are wrong about the existence of the new planet, and if it is really there, so small that it cannot be discerned by the human eye but only by the most elaborate telescope of learned professors, the fact is that the various amendments which he proposed would not solve his problem, so far as I can see, at all. It would not go far enough.
We certainly think it necessary to repeal Section 13(3) for the purpose of Clause 16, and in trying to table the, four or five amendments which they have put down I gather that noble Lords opposite have actually recognised that fact. But we think it desirable to abolish Section 13(3) altogether and that is because, for the reasons I have explained, we regard it as now wholly superfluous because the extension of the immunity in 1976, to cover interference with all contracts and not just contracts of employment, made Section 13(3) unnecessary in relation to the torts dealt with in Section 13. It is now clear that Section 13(1) covers both the direct and indirect forms of the torts for which it gives immunity. Once that is established the question of whether inducing a breach of contract of employment or an actual breach of such employment are lawful means does not arise in connection with those torts because Section 13(1) itself provides the substantial immunity.
If he wanted to protect himself against the possibility of some hitherto undiscovered tort, I think he would have to travel a very different road from that which he has done in the present amendment. He would then have to find a new clause on the lines of Section 13(1) not related to unlawful means, as he sought to do by reinstating subsection (3) of Section 13; he would have to provide a substantive immunity in relation to the new tort, which he would then have to define. As we do not think that the new

683
tort exists, we are rather at a loss to find such a substantive new clause, but I think there is no limit to the ingenuity of the noble Lord, Lord Wedderburn, or to his industry. I only seek to assure him that no question of principle that I can discern with the naked eye possibly arises on any of these amendments.
9.23 p.m.
Lord SPENS: Before the noble Lord, Lord Wedderburn, replies, I just want to say that I have been quite mystified as to how far this particular debate has taken us, but I believe from what the noble Lord the Lord Chancellor has said that we have been debating not only Amendment No. 77N but also the possible effect of taking out subsection (3) of Section 13 of the 1974 Act. The noble and learned Lord the Lord Chancellor described it, I believe, as now being a floating kidney. May I claim that our little group had thought of it in very similar terms and we have been considering whether there may not be a better way of making use of subsection (3) than merely removing it from the statute book. Therefore, all I want to say is that we may come forward on Report stage with an amendment.
The LORD CHANCELLOR: I can only say to the noble Lord that when he does we shall give it the same careful attention as we have been trying to give to the noble Lord, Lord Wedderburn. Perhaps they will find themselves in the same Lobby.
Lord WEDDERBURN of CHARLTON: I can only hope the noble and learned Lord the Lord Chancellor will give Lord Spens' amendment when it comes even closer attention that he has given ours. I wish to reply, with the greatest respect and in all clue deference, to the arguments which he has advanced to me. I am sure he did not intend them ad hominem. I would not have dared to cite my own chapter in Clerk and Lindsell, and it is the last thing I will do tonight.
The LORD CHANCELLOR: A very good chapter.
Lord WEDDERBURN of CHARLTON: I am glad the noble and learned
684
Lord thinks it is a good chapter. It will be improved in the next edition. I do not think the Government are on to a plot. Noble Lords look astonished, but I do not think they are on to a plot. I think the Government are wrong. It is possible to have disagreement, especially among lawyers. The noble and learned Lord said that they are not nearly so clever as to abolish the right to strike in this way. The noble and learned Lord underestimates himself, but I take it that he does not intend to do so. It has been said again and again, and of course we all know that what is said three times is right. I take it it is the Government's intention not to abolish or imperil the legality of the right to strike. But that is what they are doing.
I must repeat the reason, because the noble and learned Lord said that he did not understand my argument. I will reply to the points where he said he did not understand, and keep the time short. First, he put it to me that the Government were advised that they were not doing anything of this sort by mistake. The noble and learned Lord does not need advice on these matters; he knows the authorities; at least, with respect, I thought he did, but I am coming to some which I think prove at any rate that he is arguably wrong.
The need for subsection (3) of Section 13 arises from two matters: first, that many judgments which have not been overruled, and which in some cases have been approved by the House of Lords, state that that which is actionable still remains unlawful means; secondly, that breach of contract including breach of contract of employment is unlawful means. The noble and learned Lord said that the Act of 1974 as amended by the Opposition, which carried its will against the minority Government of the day in this House—I am not making a party point, but that is how it came about—did in fact restrict subsection (1) of Section 13 to inducing breach of contract of employment. I point out to the noble and learned Lord that it is not true when he says that the 1974 Act as enacted was totally restricted to contracts of employment. I have the Queen's Printers copy in my hand, and if he will look at subsection (3)(b)—
The LORD CHANCELLOR: I quoted specifically Section 13(1); at least I thought

685
I did. I think if the noble Lord studies Hansard tomorrow he will see that I was very careful to say that.
Lord WEDDERBURN of CHARLTON: I retract, of course, if I have misquoted the noble and learned Lord. However, I have to point out that subsection (3) was not restricted to contracts of employment and included the phrase:
"a breach of contract in contemplation or furtherance of a trade dispute"
shall not be regarded as an unlawful act or unlawful means for the purpose of establishing liability in tort. It refers to a "contract", not "contract of employment". What is more I, too, have recently re-read all the debates of 1974 and 1976. The Opposition put down no amendment at all to that particular subsection and paragraph. By 1979 they had suddenly discovered that subsection (3) of Section 13—and I refer to the working paper on the new clause in 1980—was a monstrous enlargement of the immunities, but they did not challenge it in 1974, and they did not challenge it in 1976. It remained on the statute book for that very reason—they did not challenge it. Why did they leave it there?
Now the noble and learned Lord says that they appear to have left it there because it was meaningless. That is not what the working paper said. That said that it was a monstrous extension of the whole of the Act of 1976. Now the noble and learned Lord says that it does not mean anything. Perhaps I may interpose that if it is meaningless—and I beseech him in Cromwellian terms to be thinking that he may be wrong—then at least leave it on the statute book, if it is arguable that it protects the right to strike and the right to strike would disappear without it.
However, the noble and learned Lord makes a much more important point, and on that central issue I shall join with him. He says that he and his advisers have been unable to discover this curious tortious planet in the heavens of the common law to which I have made reference. There is no such tort, he says, as doing damage by unlawful means or conspiracy to use unlawful means, if that is the other way to put it, as the Donovan Report did.
686
I do not merely rely on the Donovan Report—it is not a judicial authority. I wondered which references I should bring of the many which support the argument. I can only refer the noble and learned Lord to the statement in Torquay Hotel Limited v. Cousins in 1969, which I quoted previously and which said that if you deliberately interfere with the trade or business of another, and do so by unlawful means, you act unlawfully and are liable to damages or an injunction. That was expressed in the Court of Appeal in 1969 2 Chancery at page 106, and supported by the Court of Appeal in the case of Acrow Automation Ltd. v. Rex Chainbelt Inc. in 1971 1 Weekly Law Reports at page 1676. It was supported last year in the Court of Appeal in the case of Carling Music Corporation v. Collins 1979 Fleet Street Reports, page 542, and stated with abundant clarity in the Court of Appeal in the case of ex parte Island Records 1978 3 Weekly Law Reports 23 at page 30.
I shall, if the noble and learned wishes me to do so, read such passages as I have brought from two of those authorities. However, I ask him to accept from me that there are many other authorities that establish the existence of this tort. He rather criticised me for daring to suggest it, and were I a belligerent character—which I am not—if I were speaking of someone else other than the noble and learned Lord, I would say that a student of law today must be affected by legal myopia if he did not understand the existence of this tort. He does not need a telescope, he does not even need a spyglass. It is abundant from the pages of the law reports.
The extent to which breach of contract amounts to unlawful means is, it is true, arguable in terms of the precise margins, but that is always true of legal doctrines. But that it applies as unlawful means, that that combination to use it as an instrument to do damage to another is a species of tortious liability which is unprotected by any statutory provision other than Section 13(3), is a matter of common knowledge to everybody that I have seen write upon the subject.
It is not only established by the case law to which I have referred. I do not wish to refer to my own writings in any way because they are derivative from other

687
people's. If you look at Windfield on Tort, one of the greatest books superbly edited by Professor Jolowicz, you will find that this is referred to. If I may dare to refer to the late Professor Sir Otto Kahn-Freund, whom I am sure the noble and learned Lord will accept was the greatest labour law scholar of his era, he makes it quite clear in a number of publications that he understood the reason for the enactment of subsection (3). Indeed, it was in discussion with Professor Kahn-Freund that I, in the late 1960s, understood better the report of the Donovan Commission of which he himself was a member.
Therefore, I do not put this forward as some curious idiosyncratic and bizarre concept of mine; I put it forward on legal authority and on the basis of the Donovan Commission itself. I put it forward on the greatest authorities in the area of the law of tort and labour law. I rely upon them and accept them. If in the face of them the Government will not relent—not even to the extent of accepting Amendment No. 80J, which would strike at the repeal of Section 13(3) altogether (that is not what we have asked for now although that is what we really want)—if they will not relent even to the extent of constricting the repeal of Section 13(3), which is essential to primary strikes, to the ambit of what we regard as their grotesque Clause 16, then on the basis of that authority the Government, on the arguments that we have exchanged across the Chamber, are not honouring their own words, but are mistakenly (I make no attack on motive or intention) not living up to their own words of not attacking the legality of the right to strike. I propose to press this matter to a Division and invite Members from all sides of the Committee to vote for this amendment.
The LORD CHANCELLOR: Before the noble Lord carries his threat to dire action, I must say one or two things by way of answer to what he has said. 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
688
their advice. But what I said and what I say now is that no question of principle is involved. He takes one view of the law; the Government's advisers take another. It is possible that either of us may be wrong. I happen to agree with those who advise me, otherwise I would not have put it forward.
Of course, conspiracy also is a tort and that includes the use of unlawful means. That is part of the classical definition of "conspiracy". But when Section 13(1) of the 1974 Act, as it is amended by the 1976 Act, carefully explains that there is a substantive immunity in respect of something which induces another to break a contract, or interferes or induces any other person to interfere with its performance; or: that it consists in his threatening that a contract of employment (whether one to which he is a party or not) will be broken; or its performance interfered with; or that he will induce another person to break a contract or to interfere with its performance, when those are the substantive words of the law, it appears to me—and would have appeared to me apart from the learning and industry of the noble Lord, Lord Wedderburn—that complete immunity is given in respect of the things in which it purports to give immunity and, therefore, the means are not unlawful, without any of the elaborate amendments which the noble Lord, Lord Wedderburn, claims to be matters of principle.
Lord WEDDERBURN of CHARLTON: As the mover of the amendment, perhaps I may say a few words in reply. The noble and learned Lord is right in what he says so far as he goes. The section that he quoted does not render the breach of contract itself other than unlawful means. Therefore, we have to register our disagreement with the noble and learned Lord, and in discussion with me my noble and learned friends and my noble friends have said that they regard the argument as such that we must press this matter to a Division.
9.39 p.m.
On Question, Whether the said amendment (No. 77N) shall be agreed to?
Their Lordships divided: Contents, 37; Not-Contents, 85.

CONTENTS

Ardwick, L.

Janner, L.

Ponsonby of Shulbrede, L.

Birk, B.

Kaldor, L.

Ross of Marnock, L.

Boston of Faversham, L.

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

Stamp, L.

Collison, L.

Stewart of Alvechurch, B.

David, B. [Teller.]

Lockwood, B.

Stewart of Fulham, L.

Davies of Leek, L.

Lovell-Davis, L.

Stone, L.

Galpern, L.

McCarthy, L.

Strabolgi, L.

Gregson, L.

Milner of Leeds, L.

Underhill, L.

Hacking, L.

Northfield, L.

Wallace of Coslany, L.

Hale, L.

Oram, L.

Wedderburn of Charlton, L.

Hatch of Lusby, L.

Peart, L.

Wells-Pestell, L.

Houghton of Sowerby, L.

Phillips, B.

Whaddon, L.

Howie of Troon, L.

Pitt of Hampstead, L.

NOT-CONTENTS

Ailesbury, M.

Ferrers, E.

Monson, L.

Alexander of Tunis, E.

Fortescue, E.

Mottistone, L.

Ampthill, L.

Gainford, L.

Mowbray and Stourton, L.

Auckland, L.

Gowrie, E.

Nunburnholme, L.

Bellwin, L.

Greenway, L.

Orr-Ewing, L.

Belstead, L.

Gridley, L.

Rawlinson of Ewell, L.

Berkeley, B.

Hailsham of Saint Marylebone, L. (L. Chancell r.)

Reigate, L.

Bessborough, E.

Renton, L.

Boothby, L.

Hankey, L.

Ridley, V.

Brougham and Vaux, L.

Hanworth, V.

Rochdale, V.

Buxton of Alsa, L.

Harmar-Nicholls, L.

Rochester, L.

Cairns, E.

Harvington, L.

Romney, E.

Caithness, E.

Henley, L.

Salisbury, M.

Camoys, L.

Hives, L.

Sandford, L.

Cathcart, E.

Hood, V.

Sandys, L. [Teller.]

Cockfield, L.

Hornsby-Smith, B.

Seear, B.

Craigmyle, L.

Hunt of Fawley, L.

Sempill, Ly.

Crathorne, L.

Keith of Castleacre, L.

Spens, L.

Croft, L.

Kemsley, V.

Strathcona and Mount Royal, L.

Cullen of Ashbourne, L.

Killearn, L.

Torphichen, L.

De La Warr, E.

Lauderdale, E.

Trefgarne, L.

De L'Isle, V.

Lindsey and Abingdon, E.

Trenchard, V.

Denham, L. [Teller.]

Long, V.

Tweeddale, M.

Drumalbyn, L.

Lucas of Chilworth, L.

Vaizey, L.

Dundee, E.

Lyell, L.

Vivian, L.

Eccles, V.

Mackay of Clashfern, L.

Ward of Witley, V.

Ellenborough, L.

Macleod of Borve, B.

Westbury, L.

Elton, L.

Mansfield, E.

Young, B.

Faithfull, B.

Massereene and Ferrard, V.

Resolved in the negative, and amendment disagreed to accordingly.
9.47 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 77P:
Page 18, line 20, at end insert ("an employer is a party to a trade dispute and where").
The noble Lord said: This amendment also goes to the issue of primary industrial action, but in view of the hour I shall be brief. I believe this is a new point; from reading the Official Report of the debates I do not think it has been put to the Government before. I hasten to assure the noble and learned Lord the Lord Chancellor that it is a point which has been put to me. I have not, as it were, concocted it myself in that it arose in discussion, as ideas do, so it is not my brain-child. I put it to the Government with a request that they consider the matter and return to it on Report.
The definition of a trade dispute in Section 29 of the 1974 Act does, as did the Act of 1906, include within its ambit disputes between employers and workmen—"workers" in the new phraseology—or between workers and workers. In law, although not in reality, in the eyes of some of the actors in industrial disputes, disputes come to be analysed by lawyers often as between workers and workers when, in the eyes of those engaged in them, they are multi-party disputes, perhaps involving more than one employer and more than one union. The case, for example, on which the Government have been wont to rely in other matters; namely, Cory Lighterage v. TGWU in 1973, which the Lord Advocate has put to me a number of times, was such a case. It was a case where a non-unionist insisted on maintaining his non-union status in a 100 per cent. union practice situation in the docks. Under the Dock Labour Scheme the employer could not dismiss him but suspended him, and there was a trade dispute.
The Court of Appeal ultimately found, after lengthy argument, that this was a dispute between workman and workman. To the workers involved that seemed bizarre; that is to say, they thought that it was a dispute between workman and workman and the employer, in the sense that the trade unionists were not happy, and indeed Mr. Shute, the non-unionist,
692
was not very happy, with all the things that the employer had done. I am not in any way criticising the legal correctness of that decision; but in the court room the disputes can frequently become worker against worker disputes.
This applies not only to demarcation disputes. As the Cory Lighterage case shows, the matter may involve a non-unionist with a unionist. It may involve two unions competing for recognition—a point which I press on the Government, because they are now about to take away the legal machinery whereby such disputes might be resolved via ACAS with a binding recommendation. It is arguable that there will be more recognition disputes. Therefore, if there were two unions competing with an employer in regard either to recognition or other matters, it is good legal advice to the employer to say: "Stand back and say that you are neutral, not in any dishonest way because there is a legal sense in which you are neutral, although of course you are not neutral in terms of wanting one thing or another from the dispute". So it is the case that many disputes, by the time they reach the court room, are arguably at least worker and worker disputes. It appears again and again in the law reports, as I am sure the noble and learned Lord Advocate will agree.
The importance of that point to this clause is as follows. The definition of secondary action is all-important in Clause 16. It is all important because if what you are doing is secondary action under the definition—not in layman's language; not, as was once said in this Chamber, in English, but in law—then you are within the clause, and you can escape only through one of the gateways to freedom: subsection (3), (4) or (5).
I am not criticising the clause in its construction. I am merely trying to analyse it. What I say, however, is that it has now become apparent—and one feels very foolish at not having seen this before; I am sure that the Government must have thought about this, and must be reconsidering it—because of the definition of secondary action, that industrial action taken in furtherance of a dispute between workers and workers in legal analysis must be secondary action. I say

693
this because the definition, if I may read the relevant parts and not unfairly conflate the middle, says:
"For the purposes of this section there is secondary action in relation to a trade dispute when, and only when, a person—
(a) induces another to break a contract of employment or interferes"
with it or threatens to interfere with it. The subsection later adds:
"if the employer under the contract of employment is not a party to the trade dispute".
So whenever the interference with the contract of employment is in a situation where the employer is not a party to the trade dispute then, within the new law, it is secondary action. Therefore, it follows again, as the night follows day, that if there is a trade dispute between worker and worker where there is no employer party to the trade dispute, all action which is industrial action must in law be secondary action.
Of course, the workers involved would be astonished at that situation, because what they are doing is taking primary action against their own employer. Let us take two groups of workers, each of which is on strike and is in some way in competition, each claiming different things from the employer, as in the Cory Lighterage case. The employer is held by the court to be a neutral, which he may or may not establish. So what we reach is a redefinition of trade disputes in effect through the secondary action definition.
Therefore, I ask the Government, first, whether they will accept the amendment, because the amendment is a way of dealing with the matter. It may not be perfect, but it is a way of dealing with the matter in that from the definition of secondary action there is taken this element by adding the words that it applies where:
"an employer is a party to a trade dispute".
Obviously, the rock upon which Clause 16 is built is that there is an employer party to the trade dispute. You cannot get through the gateways to freedom of subsections (3) or (4) unless there is an employer party to the trade dispute. Therefore, if you have a trade dispute with no employer a party, primary action in furtherance of that is necessarily unlawful. I cannot believe that that is the
694
Government's intention. I very much hope for an assurance that they will come back to us on this matter on Report, even if they cannot meet this amendment. I beg to move.
The Earl of GOWRIE: The purpose of the amendment is to ensure that there is immunity for industrial action in a worker versus worker or, normally, an inter-union dispute where no employer is involved. Such action has no immunity under the clause as drafted. The noble Lord has pointed out that Clause 16 might possibly remove immunity from those who organise primary as well as secondary action in an inter-union dispute. It is of course very rare for there to be a worker versus worker dispute where the employers of the workers involved are not also parties to the dispute. These were the grounds on which an amendment to remove disputes between worker and worker from the definition of trade dispute was resisted by the previous Secretary of State for Employment, Mr. Albert Booth, in the debates in another place on what became the 1974 Act. Much more usual are disputes such as the current dispute at the Isle of Grain site, where the essence of the dispute is an argument between different trade unions hut where, inevitably, a number of employers are closely involved.
In practice, therefore, Clause 16 will not remove immunity from industrial action in the normal run of inter-union disputes. Wherever there is an employer who is a party to the dispute it will continue to be lawful for a union to induce that employer's employees to take industrial action against him. But if they try to spread the effects of the dispute through secondary action, they will be subject to the provisions of Clause 16, just as they would with any other type of secondary action—and that is essential to our purpose.
If, however, there were to be a strictly worker against worker dispute with no employer involved, there would still be immunity if there were breaches of contracts of employment alone, but not if there was damage to the business of the employers who were innocent bystanders in the dispute. Secondary action in such disputes—that is, action by employees who have nothing to do with the dispute—

695
seems to us to be every bit as unacceptable as other forms of secondary action which the clause makes unlawful. Furthermore, the action of the workers who are party to the dispute is itself difficult to distinguish from secondary action as defined in the clause, because it is taken against employers who have no involvement in the dispute and no means of affecting its outcome—just the kind of thing we are here to try to correct.
If an employer has taken active steps to become involved in a dispute by giving support to one side or another, that is a different matter; it is legitimate, then, for unions to take industrial action against him. But if the employer has stood on the touchline, so to speak, throughout the dispute, powerless to affect its outcome, while his business grinds to a halt, then in our view he should have a remedy against the organisers of the action, just as other innocent employers have in cases of unlawful secondary action. That is why I would ask the Committee to resist the noble Lord's amendment.
Lord WEDDERBURN of CHARLTON: My noble friends and myself are very unhappy at the brief which the noble Earl has just given to us. I accept it in every way as far as it goes, but it does not meet the point that in worker against worker disputes primary action is rendered secondary and unlawful by this clause. We shall not divide, but we shall not withdraw the amendment.
On Question, amendment negatived.
[Amendment No. 77Q not moved.]
The DEPUTY CHAIRMAN of COMMITTEES (Viscount Hood): Before I call the next amendment, I should warn your Lordships that if it is approved I shall not be able to call No. 77R or No. 77S.
9.58 p.m.
Lord ORR-EWING Lord ORR-EWING moved Amendment No. 77QA:
Page 18, line 25, leave out ("which is not action satisfying the requirements of subsections (3), (4) or (5)") and insert ("as defined").
The noble Lord said: I would seek to move Amendment No. 77QA, and with it, for convenience and speed of the Com-
696
mittee's proceedings, I would refer to Amendments Nos. 77SA, 77T, 77TA, 77ZA, 80AB and 80CA. They all go together. I do not include 80CA, the last of the amendments, because that will be moved by my noble friend Lord Renton and is a separate subject on its own. I speak as someone who has spent the whole of his life in Parliament and also in industry. Therefore, I do not speak with a great legal knowledge, like the legal luminaries who have been addressing your Lordships' Committee on the previous amendments—with great entertainment, but to some of us it is not absolutely as clear as crystal. I shall look forward to reading the next book by the noble Lords, Lord Wedderburn and Lord McCarthy, which will no doubt be entitled Employment Bill 1980 and, I am sure, will be compulsory reading at some of our universities if one wants a law degree.
I speak not only as an industrialist but as honorary secretary of an all-party group of which Lord Spens is chairman, and I shall leave it to Lord Spens and Lord Renton, who are experienced in the law, to put the legal points on these amendments.
We tabled these amendments—and I speak as the honorary secretary of that group—for four reasons. First, to make the Bill clearer and easier to understand: and after the recent exchanges, I am sure that that will be very welcome to the Committee and the country in general and to those who have to interpret it. Secondly, to make the Bill more effective in countering secondary action. I refer particularly to blacking, blockading and variations on those themes. Thirdly, we seek to amend the Bill so as to reduce, in the words of the noble and learned Lord, Lord Scarman, in the McShane case:
"the need for the courts to act as some sort of back-seat driver in trade disputes".
Fourthly, we move the amendments to bring the Bill more in line with the Government manifesto which, I would remind the Committee, said:
"We shall ensure that the protection of the law is available to those not concerned in the dispute".
Your Lordship's House, as we all know, has the task of debating (as we did yesterday), of delaying and sending back (as

697
with the ship repair section of the Bill to nationalise British shipbuilding) and of revising, which we are undertaking today. I think we have a special constitutional responsiblity for examining closely those Bills which, when they reach us, have not been thoroughly debated in the other place either because the guillotine has had to be used by successive Governments or because an important section has been introduced at a very late stage. This last point applies particularly to Clause 16, which was tabled at Report stage as a result of the Daily Express v. McShane ruling. This clause never went through Standing Committee and did not receive the detailed examination I think it deserves. It was never fully understood by many people and has been much criticised in many quarters.
Clause 16 sets up a legal framework with a complicated series of subsections by which the unions can prove that they are within the law. Surely it is better to amend and create a simpler pattern. These amendments seek to do that. No law could successfully prevent—and I concede that—a genuine sympathy strike. But these amendments will restore to employers not involved in a trade dispute, employers who are first suppliers or first customers, their common law rights if they decide to proceed. I am sure that noble Lords will recognise that the "if" is a big one. There will not be many employers who can afford the time or the money to take legal action; but at least we restore to them the right to do so if they so wish. Of course, these amendments may not be perfect in their wording, although we have sought to make them so. We well understand that the Government may wish to change them when it comes to Report stage; but the all-party group feel strongly on this issue.
I turn for illustration to two areas of life in this country. The first is the motor industry which in the United Kingdom has been disastrously disrupted (with a tremendous fall in output and to the great advantage of our competitors) as a result of bad industrial relations in the last decade. The four car manufacturers, British Leyland, Ford, Vauxhall and Talbot, really assemble cars. One vehicle may contain as many as 60,000 parts. These come from more than 100 major suppliers and several hundred minor
698
suppliers. The major suppliers include firms like Lucas, Smith's, Automotive Products, Rubery Owen and GKN and, in the case of brake systems, Clayton Dewandre, of which I have been chairman for many years. It is now customary for motor manufacturers, world-wide, to get their supplies of components (tyres, wheels, brakes, speedometers and the like) from at least two sources so that, if one is disrupted, the other source will survive and will not stop the production lines. European manufacturers often use one source in Europe and one in the United Kingdom. United Kingdom manufacturers use one source in Britain and one in Europe.
The repercussions of a strike—say at British Leyland—can have a tremendous effect on the whole engineering industry of our country and a side effect on the Continent as well. Within days, production may have to be cut back at several hundred major firms, and within a week repercussions are felt next layer down: suppliers of steel, castings and the like. Therefore, we retain our component exports to Europe. This has been a most healthy aspect of the British motor industry. We must legislate to minimise the degree of disruption, otherwise confidence will go and with it will go the jobs and the orders.
Perhaps the public are most sensitive in the service industries—I turn to those now—particularly in hospitals where blacking and blocking may and did affect in the "winter of discontent" the sick, the dying and even the dead. Here again, the Bill does nothing for the hospitals, as the admirable Daily Telegraph leader of 2nd June stated under the heading "Lords to the Rescue". It said this:
"If the Bill reaches the statute book, a trade union engaged, for example, in attempting to disrupt the work of hospitals will continue to enjoy the protection of the law, if it seeks to induce suppliers and lorry drivers to block essential medical supplies".
I am sure the public would not wish to see that continue henceforward. If they do see it, then they will blame this Government for not having set matters right. Surely, we have an obligation to discourage such immunity as encourages this practice. That is why I commend these amendments. Discussion is going on in academic, legal, industrial and Parliamentary circles on this clause. I hope that this Committee of our House will live up

699
to its responsibilities and then we can truly earn the headline which was prominent last week and we can say: "Lords to the Rescue". I beg to move.
10.8 p.m.
Lord SPENS: I want to support this amendment. I hope to claim some credit for its construction. When our group were thinking about what we should do about Clause 16, it was rather opportune that a letter appeared in The Times signed by Mr. Alan Campbell Q.C. which, if I may quote from his introduction, said:
"An examination of the complex provisions of Clause 16 of the Employment Bill reveals an intention to reflect the 'first supplier first customer' concept; to entrench the legality of all industrial action within this ambit; also to legalise the 'repercussive' effect of such action against third parties".
That is a letter of 27th May. That letter confirmed the views that I had taken about this clause, that it is much too complicated as it has been drafted and, much more than that, I dislike the way that it appears to entrench positively in statute law immunities for the trade unions. I do not believe that they have been so far entrenched positively before. If one looks at subsection (3) it says:
"Secondary action satisfies the requirements of this subsection if …"
and subsection (4) is similar. Subsection (5) is similar. These entrenchments are being made by a Conservative Government, and that to my mind means that—
The Earl of GOWRIE: If I may, I should like to make the point that the kind of immunities the noble Lord referred to have been entrenched in law ever since the Liberal Government of 1906.
Lord SPENS: Yes, I realise there have been entrenchments, but what worries me is that these entrenchments are about to be made by a Conservative Government, because once a Conservative Government has made these positive entrenchments it is going to be extraordinarily difficult ever to get them altered. No future Labour Government will want to alter them, and it is going to be very difficult to find a future Conservative Government who will want to alter them. Therefore it seemed to me that this entrenchment of immunities was a dangerous thing and so
700
I set about trying to draft a much simpler clause and I gave it to my noble friend Lord Orr-Ewing. At the same time he was having similar thoughts on the subject, and together we produced the amendments that are now before your Lordships.
If I may just indicate the effect, Clause 16 will now read:
"Nothing in Section 13 of the 1974 Act shall prevent an act from being actionable in tort on a ground specified in subsection (1)(a) or (b) of that section in any case where—

(a) the contract concerned is not a contract of employment, and

(b) one of the facts relied upon for the purpose of establishing liability is that there has been secondary action as defined, and

(c) the person claiming the benefit of this section is not a party to the dispute".

Subsection (2) we leave as it is; and we take out, or hope to take out, subsection (3), (4), (5) and (6).
Having tabled these amendments I was delighted to read a letter on Tuesday of this week in the Daily Telegraph from Edward Grayson, saying:
"These amendments to Clause 16 provide with the most admirable simplicity and clarity that Section 13 of the Trade Union Relations Act 1974 will not apply, and a person will therefore be able to pursue his common law rights when he is

(a) suing for interference with a contract other than a contract of employment (e.g. a commercial contract);

(b) relying upon secondary action as defined in subsection (2) of the existing Clause 16, and

(c) himself not a party to the dispute".

So we have got a positive acclaim from Mr. Grayson that we have done what we had hoped in the form of making Clause 16 simple and also, I think, more effective than the present Clause 16 will be. I therefore support the amendment.
Lord HANKEY: I should like to support my noble friends in putting forward these amendments. I see great difficulty in the present text of Clause 16. I have had to spend years of my life arguing with foreigners about the meaning of various texts of treaties and so on. My experience is that people are confused whenever anything is very complicated. In particular, the French always make rings round everybody else, and so do the Russians. It is true that we do not deal with the French and the Russians, but

701
when you mislead a lot of people by the complication of texts it leads to endless disputes and makes it much harder to get clarity in relations between the various bodies concerned. I will not go in for crossing a lot of legal swords with people such as we have seen, but I think really we have to get down to the rock bottom sense of what we are trying to correct.
We have seen in the shipyards a dispute between unions—the shopfitters and the boilermakers, I think—which for months and months prevented contracts from being concluded. At the power station in the East of Kent months have gone by because two unions disagree and nobody is able to settle the matter. We have had a case where the coalminers, being on strike, were able to prevent the Electricity Board from using its own coal stocks on its own premises to feed its own power stations. The people of England insist on this being stopped.
I am not sure that the texts in Clause 16 would have that effect. Some people may say that they will, but they are so obscure that you cannot be sure about it; and I do not think that the trade unions would be sure about it either. So the clause, as amended, would be more satisfactory to everybody. It would serve to correct some of the abuses of which our countrymen rightly complain, and which they really would have expected the Government to correct before now.
Lord DAVIES of LEEK: Just for one minute, one ought to draw attention to the general council's thinking in this direction. In simple English, all that this does is to increase the strength of the clause and to make it more punitive. The general council's experience—and I beg the Government not to take a partisan view—from their first-hand knowledge, begged the Government at the Croydon Conference to think carefully about industrial relations. It emphasised at that conference that the punitive measures would embitter, not alleviate, industrial difficulties. If you get massive unemployment, you can pass all the punitive Acts you like but you will have a terrible industrial situation to face. Those of us who saw what happened in the 1926 strike, or in 1921, must realise that. So I beg the Government to look carefully before increasing the punitive measures.
10.18 p.m.
Earl DE LA WARR: I want to start by congratulating my noble friend on the simple and persuasive way in which he put his arguments, which are very strong. However, I have to say that I thoroughly disagree with him. I shall not be arguing the case, because it is more properly argued, and will be much better argued, from the Front Bench. I want to confine myself to saying a few positive things about Clause 16 as it stands.
We should remember that there is in this country a long-held and deeply ingrained tradition of sympathetic industrial action. This fact was specifically put on record in the Donovan Commission's Report 12 years ago. That brings us back, very briefly, to the basic philosophy behind this whole Bill. First, do not charge in like a bull at a gate, when the gate consists of deeply-held, time-honoured trade union traditions. Go step by step and, finally, deal with specific abuses. If that be so, then Clause 16 fulfils these criteria admirably.
Certainly—and I want to draw your Lordships' attention to this—it grasps very firmly the issue of remoteness, which was drawn to our attention so strongly by the House of Lords judgment in the Daily Express v. McShane case. More generally, I want to put it to your Lordships that this clause will make it extremely difficult for any secondary blacking to take place.
Several noble Lords: Hear, hear!
Earl DE LA WARR: I am encouraged! I should like to call in aid something that was written by a body which is known for its somewhat hawkish attitudes; namely, the Institute of Directors, who said:
"It is a matter for regret that the clause does not remove the immunities for all forms of secondary action. In practice, it will have the effect of so reducing the possibility for taking secondary action that it could be argued that the Government might just as well have sought to stop it altogether."
After what I have said, I have no hesitation in turning that argument into proof to your Lordships, coming from the quarter that it does, that this clause as it stands is very tough indeed. It is for that reason that I fully support Clause 16 as it stands and very much hope that my noble friend the Minister of State will have

703
nothing to do with the amendments which have just been moved.
Baroness SEEAR: We on these Benches cannot support these amendments. Indeed, my noble friend and I are somewhat surprised at hearing the group referred to as an all-party group. Certainly neither my noble friend nor I are in any way associated with it.
Whatever other changes one may aim to make in industrial relations, it is absoutely clear that the effective right to strike must be maintained. Of course, everybody hopes that it will not often be used, but there must be not only a right to strike but an effective right to strike. If we on these Benches had believed with the noble Lord, Lord Wedderburn, that there was any hidden intention to threaten the right to strike in any way, whatever they did in the Commons my noble friend and I most certainly would have voted against the Government. Whatever may have happened on that occasion in legal terms, we believe that it is the intention of the Government to maintain the right to strike.
If these amendments were accepted by the Government, then, in my view rightly, nobody would believe that it was the Government's intention to maintain the right to strike. Therefore we on these Benches very much support the line that the Government are taking on secondary action—as the noble Earl, Lord De La Warr, remarked, on the recognition of the long established record of sympathetic strikes in this country and the need that such secondary action should, in appropriate cases, be used: not extending secondary action way down the line but maintaining it at first instance. We very much hope that the Committee will reject these amendments.
Lord RENTON: If I may say so with deep respect, I think there is some misunderstanding about the purpose and effect of these amendments. They raise a very important issue. The fact that they have come up at such a late hour will not, I hope, lead your Lordships to consider that this discussion ought to be curtailed. I shall not address your Lordships for long, but I wonder whether I may first stress three matters.
704
The first is that if the amendments are accepted the trade unions will continue to have immunity from claims in tort from employers involved in trade disputes. They will have immunity in respect not only of primary action but in respect of secondary action.
My second point is that if there should be further immunities for the trade unions in the event of the amendments being accepted, then they can be dealt with in the light of any recommendations made in the Government's Green Paper which at some time is to follow.
The third point I wish to stress is that, though we fully accept the main purpose which is expressed in subsection (2) of Clause 16, we consider that that main purpose is obscured and confused by what appears in subsections (3), (4), (5) and (6), which purport to give various definitions of secondary action. In any event, under subsections (1) and (2) of Clause 16 the plaintiff in an action will have to prove three things, and I would ask my noble friend and the noble Baroness to bear this in mind.
First, he will have to prove that he was not a party to the trade dispute; secondly, he will have to prove that a contract which he had was adversely affected by the secondary action and that it was not a contract of employment; and thirdly, he will have to prove that the secondary action conies within subsection (2) of Clause 16, which I need not read; it has already been described by my noble friend Lord Orr-Ewing. That is the essence of the matter—that the burden of proof is going to be upon the plaintiff to prove those three fundamental things before he can get damages in tort in respect of any secondary action.
The question which your Lordships have to decide in relation to these amendments is where the burden of proof is to lie. We are not told in the Bill, and I hope we will be told by the Government spokesman with regard to these various matters described in the other subsections, subsections (3) to (6) inclusive. Whoever has to prove it, and it could be an unconscionable burden on the plaintiff to prove it, under both subsections (3A) and (4A) the defendant would have to disprove the purpose of the secondary action on the defendant's part as set out in the sub-sections.

705
In our actions in the courts for civil damages the courts are normally not concerned with the motives which prompt people to do things which cause damage. They are concerned with what they do. Damages are normally awarded for damage done and not for the defendant's purpose, motive or intention in doing it. There are some rare exceptions but the court does not like to enlarge upon them. There are in rare circumstances punitive damages, for example, in actions for libel. Surely when we are legislating in this sense we should be absolutely clear that it should not lie upon the plaintiff to have to prove what the defendant's motive was for the damage that he caused. That is my first point on these three subsections.
My second point is this. Either the plaintiff will have to prove, or the defendant will have to disprove, whether the secondary action of the kind set out was likely to achieve its purpose, whatever that was. That is a matter for speculation. That is not the kind of matter which would normally be considered under Clause 16(2) if it were left as it is. That, I say, is a matter for speculation, which confuses the issue. I would have thought that noble Lords opposite, with the interests of trade unions at heart, would not want to be involved in these disputes which will make the cases more lengthy, which will, as I say, obscure the true issues. If the onus is not to be on the plaintiff, however, but to be on the defendant in relation to these matters, then we should be told so; and perhaps the Bill should say so. Sometimes it is left to the courts to decide when the onus should shift from the plaintiff to the defendant, but it is sometimes done by statute, and I think that for reasons of natural justice this is a case in which perhaps the matter should be clarified by statute.
So I say that we should really stick to the essence of Clause 16, which is an admirable clause in essence. I agree with my noble friend Lord De La Warr that we do not want to interfere with traditional rights within the trade unions. We want to stick to the Government's main purpose, and those of us who are Conservatives also want to stick to what was said, as has been pointed out by my noble friend Lord Orr-Ewing, in the Government's election manifesto. If I may say so with deep respect to all your
706
Lordships, let nobody over-simplify this matter or simply say, "This is a lawyer's point; let the lawyers sort it out". We are legislating here; we are revising as we in our judgment may think necessary. I support my noble friend.
10.31 p.m.
Lord HARMAR-NICHOLLS: I have strong feelings on this and I have a practical example which I want to give. My noble friends have given very interesting explanations as to what the amendments mean and how they will affect the clause; but if I had had to rely only upon the explanations l have heard, although I know that they are effective and coming from authoritative sources, I honestly would not have known what the matter was all about.
Two years ago in one of my companies I had an experience which may help to elucidate. It concerned a little hotel where a temporary chef had been set on and he proved to be inadequate for the job after four or five months. He accepted this himself—there was nothing wrong with the man—and eventually he was given a fortnight's notice, paid in advance and he left. To our surprise the next morning a regional trade union official telephoned the manager of the hotel and said that he was to reinstate that man, that he had been wrongfully dismissed; and he added, "In anticipation of that we have already arranged for the supplies of beer to your hotel to be stopped", by an arrangement with the drayman's union that served that area. Our manager said: "You must have the wrong end of this stick. There is nothing wrong with this; it is the normal thing. He was not up to the job; he realises it, and there should be no question of reinstating him". The official said: "You will reinstate him or your beer supplies will be stopped". Now for the hotel to have had its beer supplies stopped—and the words used by the official made it sound as though the other hotels in the group would be included, too—could be disastrous. The manager said: "Come and look into it and have an inquiry here. Let us get the thing out of the way. I am certain you cannot understand what it is all about".
The union did come to the hotel, they did have the inquiry and the other employees said: "No, the chef was not any

707
good; he was wasteful and no good for the job". The result was that the union did not have a case. So our manager said: "Well, there you are; you are going to withdraw your claim for reinstatement, we hope". The next day the union rang up and said: "You will pay £700 for wrongful dismissal". At that stage the matter was brought to my attention and I said: "Tell them that you are going to reinstate him". So he was reinstated for three days. After three days the chap walked out and that was the end of the matter.
The point is that, as I understand the law as it stands now, and as I understand the effect that these amendments are going to have on it, the position is this: When the union said that they would stop the delivery of beer, that was a secondary action, but we could have done nothing about it because it was directly concerned with the dispute between the chef and the company. So we have lost our common law rights under the Bill as it stands; they would have immunity and there would be nothing we could do against the beer supplies being stopped.
But it goes even further than that, and this is what I want my noble friend to bear in mind, and I hope that he will convey to his friends in the Government that they really ought to look at this again. If it had concerned the laundry supplies or the oil supplies to that hotel, which were nothing to do with the hotel company and the laundry who work on very narrow margins nowadays, they might well have found the difference between remaining in existence and employing their men and going out of business quite marginal. If it had been that the drivers of the laundry van had had the same advice given to them that was given to the draymen and had adhered to it—the laundry was nothing to do with the dispute between the hotel and the chef—the laundry would, under this clause as it now stands, have lost their rights in common law. The immunity would have extended to the laundryman possibly having to go out of business, giving up employment, and all the trouble that would have caused. I cannot believe that my noble friend and the right honourable gentleman the Minister of Employment, and indeed the Cabinet, would want to reinforce a law that would harm a
708
man so remote from the cause of action as that laundryman happened to be.
The reason why I am supporting these amendments, and ask my noble friends to look again at the real effects of this clause, is that I cannot believe they would wish that immunity to be given in that kind of situation. We are always talking about the motor car industry and the big oil industry, but this will affect little companies like the one I have described; and they are the ones most likely to go under as a consequence of the barrier that robs a man of his rights under common law. I am not arguing the point now about the right to strike, and industrial disputes and all that flows from that. I believe that any British citizen who is as remote from the dispute as that laundryman would be does not deserve to have his rights under common law taken away. I believe he ought to be allowed to take it to court. He would have to prove his case; not just that he disliked the procedure. He would have to show that he had been damaged, to show that the immunity, if given, could possibly affect his continuing his business. I cannot believe that my noble friend wants that to continue.
I was rather interested to hear my noble friend Lord De La Warr; he is not accustomed as I thought he would have been, to the shape of a Chamber in British Parliaments. When you get cheers from the people you can see, you are not likely to be right in adhering to the principles established by the people behind who you cannot see. Perhaps the greatest indictment of the support my noble friend gave to this clause was the fact that he got cheers. What I believe we have a duty to do in political terms is this. After 1974 the Socialist Government—I understand it; I am not criticising them for it, they are the trade union party at almost any cost; they are acting according to the image we know—erected barriers to common law rights of many people, and I do not like common law rights to have to overcome barriers of that sort. What we want to do is to remove, not all the barriers, but I believe that as a party we have a duty to remove those most blatant and most unfair.
The LORD CHANCELLOR: I am sure my noble friend does not want to make a false point. These particular rights have been entrenched since 1906. It was not, iniquitous as they were, the

709
Labour Government which did it; it was the Liberal Government in 1906.
Lord HARMAR-NICHOLLS: It is not for me to cross memories with my noble and learned friend the Lord Chancellor, but I think that the immunities that I am describing now were in fact strengthened by the Socialist Government when they removed part of the Industrial Relations Act. I am sorry my noble and learned friend diverted me, because I would let you win all the arguments so long as you retain for that laundryman his rights under common law to be able to go to court to preserve the interests of his business and the people that he employs. I understand that all these amendments will do that.
What is it that we want? I do not suppose for one minute that my noble friends will vote for these amendments tonight. They are using the Committee stage in order to try to impress upon my noble friend and upon the Government that they really have overlooked a point here which is important and vital so far as the freedom of the individual is concerned and his rights under common law. We happen to believe that, and if my noble friend can say that that is not so, I shall accept it.
As regards this particular clause, only a matter of four or five days' notice was given to the other place before they examined it. Only one amendment was put down which even touched upon the issues that have been raised by my noble friends and myself. I believe that the issues involved, and the depth to which they go in affecting ordinary people, are such that the Government ought to make certain that both they and the other place have a chance to have another look at this in order to be certain whether the kind of matters to which I am referring and to which my noble friends have referred, have any basis or not. I hope that we shall not be put in the position of having to put down amendments in your Lordships' House at Report stage which would try to bring that about by a vote. It would be counter-productive if we had to do so, because this is intricate and difficult to explain, and it would be presented again as though it were a question of Lords versus the People and the real point of protecting the freedoms would have gone. It must come from the Government.
710
I believe that the Prime Minister and the right honourable gentleman the Minister for Employment, and the whole of the Government, owe it to the Party to look at this in the light of the knowledge that has come to their attention during this debate. I say that the reason why they have a duty to the Party is contained in the manifesto, and I shall repeat the words that have been quoted by my noble friend. I shall repeat them because we are committed to them. The manifesto says:
"We shall ensure that the protection of the law"—
that is all that I ask for—
"is available to those not concerned in the dispute, but who at present can suffer severely from secondary action".
That is what we promised. That is what we ought to try to achieve.
If, having had another look at it, if having taken into account all the evidence that has come to their notice since the Easter week when they rushed it through, and if in the light of the arguments put forward by my noble friends the Government still think that Clause 16, as it now stands—which delights my noble friend Lord De La Warr so much—is perfect, then we shall have to accept it. But I truly believe from my personal experience, quite apart from the arguments of lawyers and all the details and intricacies, that if this clause goes through as it is at present, it may well delight the Benches opposite and give the trade unions a feeling that they have won a particular battle. We are not interfering with their right to strike but we do want to interfere with anybody's right to take away the common law rights of the citizens of this country. I know that my noble friend is eager to speak. I know that it is awful to be on your feet at this hour of night and know that you are losing the sympathy of your listeners, but this matter goes deeper than that. If by keeping my noble friend in his seat for two more seconds I can urge upon him to see to it that his noble friend beside him, and other members of the Cabinet, look at this matter again, then that is all that I ask. A second look will make them come to another decision and it will be my noble friend who will put the amendments down for the Report stage and not those on the Back-Benches.
Lord ROBBINS: I rise in a state of very great perplexity. I trust that your

711
Lordships will not blow cold on candour. In respect of this Bill, which we have been considering for some days, I approach matters in a mood of moderation and gradualism. When I have been present at Divisions, which is most of the time, I have consistently supported the Government line. I abstained from dividing on our last decision because, quite frankly, in the interchange between the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Wedderburn of Charlton, I was extremely perplexed and puzzled and unable to make up my mind. Sitting on the Cross-Benches I have always made it a principle never to vote on an issue which I do not thoroughly understand.
In spite of this general approach to the Bill, from the outset—and I mentioned this in my speech on Second Reading—I have felt extremely perplexed at the clause relating to secondary picketing. My reservations have been increased by what has been said in the course of debate this evening. I am all against undue encroachment on traditional attitudes. But it has been said—and it has been said by powerful figures on the Opposition Benches—that if the Government were to go to the country not having dealt with secondary picketing, the country would be disappointed. I await with interest the elucidations of the Government spokesman to the effect that if Clause 16 is passed in its present form, the nearly universal desire to deal with the evils which manifested themselves in the winter of discontent will not be repeated.
10.47 p.m.
The Earl of GOWRIE: I hope that the Committee will extend to me the indulgence that they extended to the noble Lord, Lord Wedderburn, when he was introducing his principal areas of interest earlier this evening. I tore up a 20-minute speech on secondary picketing because I thought that the noble Lord, Lord Houghton of Sowerby, had done more good work in five minutes than I would be able to do in 20 minutes or even an hour or so.
However, as my noble friend Lord Harmar-Nicholls put it, these matters are intricate and difficult to explain, and I shall have to be a very little longer than
712
I was on the issue of picketing. On the subject of picketing—and I say this to the noble Lord, Lord Robens, who is just the sort of man I am very anxious to take with me—
Lord PEART: Lord Robbins!
The Earl of GOWRIE: I beg your Lordships' pardon; I know that well; it was a slip of the tongue. The noble Lord, Lord Robbins, and indeed the noble Lord, Lord Robens, were he here, are both men whom I should very much like to take with me. I would say to the noble Lord, Lord Robbins, that we are not primarily concerned here with secondary picketing. We are concerned with blacking and what are called "sympathetic" strikes. Secondary picketing is dealt with in Clause 15, which effectively makes it unlawful and does so virtually without qualification or exception. I absolutely agree with the noble Lord, Lord Robbins, that the country would think very ill of us if that were not the case.
In the issues of blacking and sympathetic strikes, it may help if I give a simple but realistic example of the kind of industrial action which Clause 16 is intended to tackle. For the purposes of illustration—and illustration only—I am going to mention real firms, and I hasten to say to them, if any of them are awake at this time of night, that of course it is no reflection on them and nothing like that could ever happen in their purlieus.
Supposing you have a motor assembly plant, let us say British Leyland, where there is a dispute between management and workers. Supposing that the workers of another company which manufactures lamps for cars—let us call it Lucas—are persuaded to refuse to make or supply lamps to British Leyland in sympathetic support of the workers in that initial or primary dispute. Suppose then that the employees of the company which manufactures the filaments for the lamps—and let us call them fictionally Filaments Limited—are persuaded not to make, or supply, the filaments to the lamp manufacturer.
At the moment, the law which we are seeking in this Bill to amend gives immunity for strikes or blacking not only to the lamp manufacturer but also at

713
Filaments Limited. In other words, it is possible for a trade union to exploit the interdependence of manufacturing companies to a virtually unlimited extent by taking industrial action at two, three, or even more removes from the original dispute. The phrase that the noble Baroness used was, "way down the line". That is what we are seeking to correct.
Under the law as it now stands, the test of whether an action is in furtherance to a trade dispute is also fundamentally a subjective one. If the person who calls the industrial action establishes that he honestly believes that it will in some way further a trade dispute that is about to come into existence, or an existing trade dispute, that is quite enough to give him this contentious legal immunity. So long as the person calling the strike is found by the court to be sincere in his belief, it does not matter how remote the industrial action is from the original dispute, or whether it involves people, both employees and the employers, who have no means whatsoever of influencing the outcome of this dispute.
This virtually unlimited immunity for organising industrial action, whether by strikes or by blacking, was made clear by your Lordships' Judicial Committee in the famous case of Express Newspapers v. McShane. That judgment confirmed what we and others, including the Liberals who opposed the legislation of 1974 and 1976, had always said was the case; that the immunity for calling industrial action had become unnecessarily and dangerously wide.
It is unnecessarily wide for trade union officials seeking to do their proper job of representing their members and defending their interests, and it is dangerously wide for the rest of the community: for us, but chiefly for the rest of the working population whose jobs and livelihoods may be put at risk by being dragged into disputes which do not concern them, do not concern us in any way, and over whose outcome they, or we, have no con rol. That is why we said that the present law was a licence to spread industrial disruption, and that is not a situation which we could allow to continue, or that the electorate would forgive us did we allow it to continue.
This clause represents, therefore, our response to that situation. It is a response
714
we have reached only after a great deal of thought and a great deal of consultation also. I hope that my noble friend Lord Orr-Ewing, who put his amendment in a very clear way—and it is a brilliantly simple and clear amendment—will not think it any derogation of him if I say that one of the options we considered was in fact the option embodied in the amendments put down by him and his noble friends. The effect of these amendments would be to cut the immunity back to the primary action alone. In other words, to go back to the example I gave at the beginning, the immunity would be restricted to the organisation of a strike or other action at Leyland; there would be no immunity for supportive action elsewhere.
I acknowledge to noble Lords who tabled the amendment that that would be a beautifully clear and simple solution, easy to understand, straightforward in statutory expression and one would not need to be a pupil of the noble Lord, Lord Wedderburn of Charlton, to take it in. Why did we not, therefore, go down that road; why did we not choose that action?
Lord RENTON: Before my noble friend moves on, may I ask him to explain why he says the amendment would limit it to primary action? The words in subsection (1)(b) are perfectly clear:
"one of the facts relied upon for the purpose of establishing liability is that there has been secondary action";
and according to our amendment we would add the words, "as defined below", and then in subsection (2) the secondary action is defined.
The Earl of GOWRIE: In the later amendment in the name of my noble friend Lord Orr-Ewing—and he said at the beginning that he was taking them together, so I am taking the debate as a whole—there is an attempt to modify this cutback to primary action. But nevertheless, I know from our own consultations, from the usual channels and behind the scenes as well as overt discussion, that the principal object of this series of amendments is to limit the immunity to primary action. We considered doing that and we rejected it, and if your Lordships will be tolerant, I will try to explain why we rejected it.

715
The answer can be found in the Donovan Report and in the judgments of the Court of Appeal which are widely associated with the name of the noble and learned Lord, Lord Denning, and those are based, in our view, on judgments about industrial reality and about what the ordinary person, including most trade union members, instinctively feel to be fair and reasonable. The Donovan Commission's report pointed out that in this country there is a long-standing tradition of industrial action which seeks to put additional pressure on the employer in dispute by sealing off his sources of supply or his outlet for sales, or both. That is the tradition which my noble friend Lord De La Warr mentioned and that is the tradition which is entrenched, maybe regrettably, not by this Government but going back to the Liberal Government of 1906.
We feel that if our reforms are to be effective, they have to take account of industrial reality, and I made that point in the debate on the closed shop. I do not accept that that is a confession of weakness or failure; it is simply common sense. We have a large parliamentary majority, and four years before we need seek re-election. It would be perfectly easy for us to accept these amendments and go down the road that my noble friends are suggesting. But we have a responsibility for ensuring that the legislation we put before Parliament is fair and workable. We must have regard to the practical effects. I believe that only the opponents of the Bill would thank us if any points of it become a dead letter because employers—not the unions, but employers—become unwilling to use the remedies we make available to them because they are frustrated or circumvented on the shopfloor.
It may help particularly those such as my noble friend Lord Harmar-Nicholls, who are very anxious about whether we have gone far enough, if I give some examples of secondary action which under this clause, if your Lordships pass it and if the other place passes it and the Bill becomes an Act, will become unlawful. Let me go back to the car example I quoted at the beginning of my remarks. There would be no immunity for a strike or blacking at the filament
716
manufacturers. There would be no immunity for a strike or blacking of goods at the lamp manufacturers—at Lucas, if you like—if the lamps were not being supplied during the dispute because, for example, the car assembly plant had been closed down by the original dispute. There would be no immunity if the employees of Lucas blacked lamps going to other companies where there was no dispute. There would be no immunity if the employees of Lucas blacked goods going to, or coming from, another company which did business with the car assembly company so as indirectly to put pressure on the latter.
It is clear from these four examples that this clause represents a severe restriction of the present immunity for secondary action. Indeed, the complexity of the drafting of Clause 16 may have masked the extent to which the clause has in fact cut back the immunity for secondary action, and this point was not lost on our opponents on the other side of the Committee, because they verbally showed their disquiet on this matter a little earlier.
May I say to the noble Lord, Lord Hankey, who raised the shipyards' dispute, that that inter-union dispute was primary action. The Isle of Grain power station dispute, too, was a primary dispute, though secondary picketing, which we have dealt with, was involved. Many of the issues in industrial actions about which people are anxious are in fact primary disputes, and, as the debate between my noble and learned friend and the noble Lord, Lord Wedderburn, showed, very few people are suggesting that the Government are interested in cutting back primary action.
I am skipping over some of my notes, but the question of where the limit of immunity is drawn must in our view, and in the last analysis, be a matter of political judgment. That is why we have reached a view on the course that we should take in this Bill only after consulting very widely. In the course of those consultations some urged us to go further and others urged us to do a lot less. Some wanted us to move more quickly than we have, and others wanted us to move more slowly.
But we believe that the line that we are taking in this clause will be accepted by the vast majority of employers and

717
trade unionists alike as fair and reasonable. It will give protection in a wide range of circumstances where damaging secondary action can be, and now often is, taken with absolute immunity; but at the same time we have not cut back the immunity so far as to give militants in the trade union movement a rallying cry with which to stir up a campaign to frustrate and undermine the Bill as a whole. The fiasco of the day of action on 14th May demonstrated that the Bill has denied them that rallying cry so far.
Getting rid of two or three more pages of my notes, may I turn to the issue of hospitals, which my noble friend dwelt upon. Let us be clear what we are talking about here. There is a primary dispute at a hospital between the hospital management and its staff. A trade union, it is suggested, might then organise action by workers who are quite unconnected with the hospital—let us say, employees of British Oxygen or the local electricity board—in order to withhold deliberately supplies for the hospital, even if the lives of patients might be at risk.
I doubt whether there were many examples of that kind of action in the past, but of course there are primary disputes at hospitals, and there are indeed primary disputes—and very damaging ones—at firms elsewhere. I have in mind, for instance, firms that supply hospitals with vital materials. No one is pretending that patients do not suffer as a result, and we all condemn such disputes when they occur; but my point here is that these are primary disputes and they would be unaffected by the noble Lord's amendments. Does he believe that if the Government had any grounds for believing that secondary action, whether blacking or a strike, might be taken against hospitals, we would not have done something about it in this Bill? Of course we would.
We have framed Clause 16 to deal with real situations and actual cases of damaging secondary action, of which the last two winters have afforded many examples. If we were to legislate to provide for patients in hospitals to be beyond the reach of industrial action, we would have to make strikes unlawful in the context of hospitals. That might be a sensible thing to do; but there is no other way that it could be done. It certainly could not be done under Clause 16 here.
718
Finally, it is worth dwelling just for a moment on the difference between blacking and a sympathetic strike. The terrifying thing about blacking is that one can carry it out without incurring any real penalty in the form of lost wages. It often pays an employer to put up with, or, one might say, connive at, selective blacking of goods entering or leaving his factory rather than precipitate an all-out strike by taking disciplinary action. That is why blacking is so easy to organise and why it has become so terrifyingly insidious in its effect. It is a painless way, if you like, for workers who are not in dispute to show support with other workers who are. That is why Clause 16 comes down like a ton on blacking and insists that it be precisely targetted on the employer in dispute and carried out only during the dispute.
The sympathetic strike, on the other hand, is much harder to organise, as we saw during the recent steel dispute. You are asking workers who are not in dispute with their own employer, and who stand to gain nothing whatsoever from the dispute, to give up their good wages and risk disciplinary action in support of a dispute elsewhere. Of course, the clause restricts sympathetic strikes, as I have already explained, but it is unnecessary to outlaw them completely. The effects of outlawing them completely would be that trade unions would take care to turn them into primary disputes by picking a quarrel with the employer. They need only demand that it be part of the conditions of employment that goods are not sent to the employer in dispute, and that would be enough, by itself, to create a primary dispute. That is the kind of example—and I do not think it is too complex—of the danger of pressing these restrictions too far and too quickly; and we have said that we will return to the philosophy of immunity in the Green Paper. Where there is sufficient anger and determination behind a sympathetic strike, the trade unions concerned would somehow find a way of evading the law and of creating a primary dispute. That is the kind of tightrope that we have to walk here.
I have tried to illustrate why we thought it was right not to go further in this Bill, but to expose the sensitive and contentious issues in a Green Paper; and I hope I have

719
also demonstrated that we have gone a very long way. To go further at present would, we believe, jeopardise the real gains that we have a chance to make and the real and extensive protections which this clause will afford to employers, including first suppliers and customers who are faced with this damaging vice of secondary action. That is why I so very much hope that my noble friends will agree to withdraw the amendment standing in their name.
Lord RENTON: Before my noble friend sits down, I wonder whether he would be so good as to answer the point I made as to where the burden of proof will lie with regard to the matters in subsections (3) to (6) inclusive.
The EARL of GOWRIE: I apologise to my noble friend; I should have done that earlier. The burden of proof in subsection (3) of Clause 16 is on the trade union officials organising the action; that is to say, they have to show that they have satisfied the test of purpose and likely effect.
Lord HAR MAR-NICHOLLS: Is my noble friend aware that he substituted the filament and the manufacture of lamps, and Leylands, in place of my laundry worker and the beer suppliers? He has said that, as the clause now stands, the laundry driver would not lose his rights under common law; that in fact the immunity did not stretch so far. The advice that I have had from other sources (which is sound in terms of legal knowledge) is that that is not how the clause itself would work. All that I ask my noble friend now is this. He has given a very persuasive explanation of the clause, but will he take this back to his colleagues in the Government and use any influence he has for them to have a look at it, and not say that his persuasive speech of a minute ago shall he the last word upon it? There is a different interpretation as to how this would in fact operate, and until that is cleared away I believe that, on an issue which was so clearly set out in our manifesto, we ought to feel that even a Government with a majority as big as this one's are prepared to have another look at it in the light of extra evidence and extra knowledge.
The EARL of GOWRIE: One of the passages of my speech that I hastened over in the interests of getting through in fact argued how we were exactly in line with our manifesto commitment. We certainly had no manifesto commitment to outlaw the kind of action which I dealt with, though we did think of limiting the immunity in the way I said earlier.
In the case of the examples given by my noble friend, which I agree with him are not very far from mine, we do not see how you can limit the immunity without hitting at all forms of sympathetic action. In the cases of the small employers and organisations that he mentioned, the party in the dispute—the hotelier in his example—would have the benefit of having alternative sources of supply. But he is right that secondary action would have been lawful under Clause 16 as we have it.
No one who stands at this Box, particularly when sandwiched between lawyers, would be so arrogant as to say that he wanted to have the last word in any situation. But I cannot give my noble friends much hope that we think there would be anything other than an attack on all secondary action by going down the road he suggests. We have spent months on this and have been criticised for not bringing in legislation rapidly after May 4th, 1979. One of the reasons why we did not is that we have had to go into this with a toothcomb. We are convinced that we have got it right; but we have left the door open for those who believe that we have not. We may return to debate on this subject, on the whole issue on the Green Paper on immunities and whether it would not be wiser to substitute legal rights and obligations for this difficult doctrine of immunity which we do not like but which is part of the industrial relations history of this country and which we cannot avoid.
Lord ORR-EWING: I am grateful to my noble friend for the great trouble he has taken in replying to the points that we have made. I do not think that we, as a group, are completely convinced. We believe that we have preserved subsections (1) and (2) of Clause 6 exactly as the Government framed them and have only sought to delete (3) and (4). Therefore, we believe that secondary action would be possible under Clause 6(2) as drafted. We have moved the amendments

721
just to seek to strengthen the hand of those who are not connected with the dispute and to restore to them their common law rights to act if they wish. That is what the amendments are about.
I moved them as spokesman for a group which contains many Tories, many Cross-Benchers—some of whom have spoken and some of whom have listened; and, after all, we had a Cross-Bencher, the noble Lord, Lord Spens, leading us. We had the moral support of several powerful Social Democrats. I am sorry if I excluded the Liberals. I felt that on this great issue of the closed shop, to which we will come back on Report, in view of the powerful action in the other place taken by Mr. David Steele, the Leader of the Liberal Party, and by Mr. Jo Grimond, the past Liberal Leader and the weight of Mr. Cyril Smith, at least some small, still Liberal voice might be heard at Report stage to make it an all-party group rather than lack the Liberals. We as a group (and I am proud to call it a dissident group, a group of people who do not agree with the majority in the Committee at the moment) feel strongly that the two clauses which need strengthening are that dealing with the closed shop, Clause 6, and the secondary action one, Clause 16.
We will not seek to divide the Committee on Clause 16. There are some two or three weeks before the Report stage on this Bill and we would still hope that the Government would find the time and opportunity to think about this again and to put something down. If not, I feel that we ought to vote on these two issues at Report (but, of course, we will consult with all the members of the group) in order to give another place a chance to think again. We are a delaying House. The Commons did not have a chance to think about the closed shop after the report of the European Commission on Human Rights. We might give them that opportunity in the light of that Report and the condemnation made. They did not consider in detail Clause 16 because it was introduced only at the Report stage and there was no Committee stage available. I hope that the Government will think again. If not, we will seek the opportunity to give the other place a chance of thinking again after our Report stage.
Amendment, by leave, withdrawn.
[Amendments Nos. 77R to 77W not moved.]
11.18 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 77X:
Page 18, line 46, after ("relates") insert—
("whether or not that prevention or disruption is likely to or does continue after the dispute").
The noble Lord said: The Committee should not think that we have not moved some of these amendments because we do not believe in them. But the hour is late and we take this amendment as indicative of the problems which are apparent in a number of our amendments. These gateways in Clause 16 to the so-called secondary lawful action are to a very large extent gateways closed by barriers that the very gateways themselves include. One of the best examples is this particular phrase.
The gateways require that the prevention or disruption of supplies should take place during the dispute. When that gets into court, I suspect that the Daily Telegraph account on 5th June last will indeed be the kind of argument that one is met with. The Daily Telegraph wrote as follows, quoting discussions with the CBI:
"As the clause is drafted, secondary industrial action will he protected only where the principal purpose is directly to prevent or disrupt the supply during the dispute of goods and services between an employer or party to the dispute and an employer under the contract of employment to which the secondary industrial action relates. A key phrase is considered to be the requirement that the purpose of the action is to prevent or disrupt the supply only during the dispute. One widely accepted view is that this could remove the protection from all forms of attempted secondary industrial action where the firm at the centre of the dispute has been completely shut down. The main argument of the Institute of Directors"
in seeking to remove protection was to strengthen even that.
This is illustrative of the way in which, when one searches subsections (3) and (4), one finds that the trade union, in order to be able to engage in any form of sympathetic action whatsoever, has to pick its way through a maze of problems which would defeat the most astonishingly acute lawyer who is advising it before it begins an action. How on earth can the trade union know whether or not the prevention or disruption is likely to continue only during the dispute? The words "only during the dispute" are not in the clause,

723
but the common interpretation appears to be—as indeed did those of the CBI and the Daily Telegraph—that that is what it means. We therefore take the opportunity of moving Amendment No. 77X—and I am speaking also to Amendment No. 77B which is a parallel—whether or not the prevention or disruption is likely to continue after the dispute, as illustrative of our view that the gateways at the moment are phoney and that the secondary action which is allowed is so beset with hedges and ditches that no trade union is ever likely to get through it. I beg to move.
Lord MACKAY of CLASHFERN: The position of action described in the amendment is quite clear under the clause as drafted. Whether it is lawful or not depends on what is its principal purpose and whether it is likely to achieve that purpose. If the principal purpose of the secondary action is to prevent or disrupt the supply of goods or services during the dispute and it is likely to achieve that purpose, then it will be protected, even if there are consequential effects after the dispute is over. It will, of course, often be the case that there are some temporary spillover effects after the dispute is over while the position is getting back to normal. That is true of primary action and, of course, we accept that such effects may be the consequence of lawful secondary action. So long as they are consequential effects of secondary action which met the requirements of subsections (3) or
(4), then the immunity will continue to apply. We do not see that any amendment to subsections (3) or (4) is needed to achieve this.
If, however, the secondary action is taken deliberately for the purpose of disrupting business after the dispute is over, then it cannot by definition have as its principal purpose the disrupting of supplies during the dispute. In consequence, it loses any immunity it might have had under Clause 16. In our view, this situation is perfectly reasonable and justifiable and I would ask the Committee not to agree with this amendment.
Lord WEDDERBURN of CHARLTON: The amendment we are pressing is No. 77X. In a sense the noble and learned Lord has given me my case, because the realities of industrial life are that a trade union which is engaging upon action envisaged in Clause 16(3) will necessarily have as its envisaged purpose to disrupt supplies during the dispute, which will naturally spill over after the dispute. It is illustrative of dozens of problems of this sort. We divide on this amendment as illustrative of our view that the gateways to secondary industrial action which is lawful are not real in any respect under the clause.
11.20 p.m.
On Question, Whether the said amendment (No. 77X) shall be agreed to?
Their Lordships divided: Contents, 18; Not-Contents, 65.

CONTENTS

Birk, B.

Janner, L.

Ponsonby of Shulbrede, L. [Teller.]

Boston of Faversham, L. [Teller.]

Kaldor, L.

Llewelyn-Davies of Hastoe, B.

Stewart of Alvechurch, B.

David, B.

McCarthy, L.

Stewart of Fulham, L.

Davies of Leek, L.

Northfield, L.

Stone, L.

Elwyn-Jones, L.

Peart, L.

Underhill, L.

Pitt of Hampstead, L.

Wedderburn of Charlton, L.

NOT-CONTENTS

Airey of Abingdon, B.

Caithness, E.

Denham, L.

Ampthill, L.

Camoys, L.

Drumalbyn, L.

Bellwin, L.

Cathcart, E.

Dundee, E.

Belstead, L.

Craigmyle, L.

Elton, L.

Berkeley, B.

Crathorne, L.

Faithfull, B.

Buxton of Alsa, L.

Cullen of Ashbourne, L.

Ferrers, E.

Cairns, E.

De La Warr, E.

Fortescue, E.

Gainford, L.

Lindsey and Abingdon, E.

Rochester, L.

Glendevon, L.

Long, V.

Salisbury, M.

Gowrie, E.

Lucas of Chilworth, L.

Sandford, L.

Gridley, L.

Lyell, L. [Teller.]

Sandys, L. [Teller.]

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

Mackay of Clashfern, L.

Seear, B.

Mansfield, E.

Sempill, Ly.

Hankey, L.

Margadale, L.

Spens, L.

Harmar-Nicholls, L.

Monson, L.

Strathcona and Mount Royal, L.

Henley, L.

Morris, L.

Swinfen, L.

Hives, L.

Mottistone, L.

Trefgarne, L.

Home of the Hirsel, L.

Mowbray and Stourton, L.

Trenchard, V.

Hood, V.

Orr-Ewing, L.

Vaizey, L.

Hornsby-Smith, B.

Reigate, L.

Vivian, L.

Keith of Castleacre, L.

Renton, L.

Westbury, L.

Kinnoull, E.

Ridley, V.

Wigoder, L.

Moved accordingly and, on Question, Motion agreed to.

[Amendments Nos. 77Y to 77CC not moved.]
11.30 p.m.
The Earl of GOWRIE The Earl of GOWRIE moved Amendment No. 78:
Page 19, line 8, leave out from ("services") to first ("an") in line 9 and insert ("between any person and").
The noble Earl said: This is a drafting amendment. I beg to move.
[Amendments Nos. 78A and 78B not moved.]
The Earl of GOWRIE The Earl of GOWRIE moved Amendment No. 79:
Page 19, line 13, leave out ("the recipient") and insert ("or").
The noble Earl said: This is a drafting amendment. I beg to move.
[Amendments Nos. 79A and 79B not moved.]
The Earl of GOWRIE The Earl of GOWRIE moved Amendment No. 80:
Page 19, line 17, leave out ("recipient") and insert ("other party to the supply referred to in paragraph (a) above ").
The noble Earl said: This is a drafting amendment. I beg to move.
[Amendments Nos. 80A, 80AB, 80B, 80C, 80CA not moved.]
11.32 p.m.
Lord McCARTHY Lord McCARTHY moved Amendment No. 80D:
Page 19, line 32, after ("other") insert ("whether or not").
The noble Lord said: I beg to move this amendment. Its object is to allow the protection of the gateway from subsection (6)(a) so as to protect, in the context of the clause, whether or not there is a contract between the primary employer and the secondary employer aimed at under the provisions of the Bill. In other words, the Government are saying in the Bill that there is only to be protection in secondary action, under the terms of Clause 16, if there is a subsisting contract. If there is no contract between the primary employer and the secondary employer aimed at, then there is no protection.
We argue that there is no particular reason why protection should depend upon the, to some extent, accident of a subsisting contract and that this is one of the ways—indeed, one of the most notable ways, as we have pointed out—that the Bill puts secondary action, from a trade union point of view, at risk, because in broad terms it is extremely difficult for unions to know whether such a contract is in existence. So one of the coincidental consequences of the Bill in its present form would be a kind of reign of terror, from the trade union point of view, when, as they would have to, they approached their lawyer in a future situation and said they were thinking of taking secondary action—or, just as likely, that some of their members were facing pressure on them and had already begun to take secondary action—and asked whether this was lawful. The lawyer would say,

727
"I will take you through Section 16 of the new Employment Act", and when they got to this part the lawyer would ask: "Is there any way in which you can say whether there is a subsisting contract?"
It would be difficult for unions to know this, because there are a number of circumstances in which there could be no contract between the primary employer and the employer aimed at. There could be circumstances in which the contract was under negotiation. In periods when a contract is under negotiation with suppliers, the normal convention is that suppliers, as and when required, supply on an "as and when" basis. Or it could be the case—I do no suggest this would be the case in many instances—that after a period of time there was collusion between the primary and secondary employer to have no contracts at all. They could be paying on delivery of fuel to avoid secondary liability.
But most important of all from our point of view, there could be a subcontract system, as there very often is, or what is sometimes called a dual contract system. In other words, the goods concerned, which were upholding the dispute—it might be oil or some other form of supplies—could be supplied on a factor basis. The contract would be between the firm and their normal supplier, but the normal supplier would not in fact supply the goods; the goods would be supplied on a sub-contract basis and the contract would be between the secondary employer and a sub-contractor.
Therefore, we would argue that there would be no contract between the company delivering and the company aimed at in the case of the secondary action. We are saying that it would be only reasonable, even at this late stage, for the Government to think again about this, and, if they do not think again about it, to tell us why it should be that liability should lie when there is no contract and that protection should lie when there is a contract.
Lord MACKAY of CLASHFERN: As the noble Lord has pointed out, this amendment would have the effect of both widening the scope for secondary action and also, we would suggest, introducing a substantial element of uncertainty into what is, as drafted, a precise definition in subsection (6)(a) of the clause. The
728
clause provides that secondary action will retain immunity only if it satisfies certain conditions, one of which is the existence of a contract between the employer or supplier whose employees are taking the action and the employer in dispute. In effect, this amendment removes that condition. The clause quite deliberately defines the supplier or customer of the employer in the dispute in terms of contractual relationships existing during the dispute.
There are several reasons for this approach. First, it is precise. The existence of a commercial contract is a question of fact which can be capable of ready proof. Any alternative—including what is proposed in this amendment—would pose serious problems of interpretation for the courts in applying the legislation to particular circumstances. Secondly, it is most unusual for employers to contrive to do business without a contract. Firms simply do not arrange to buy or supply goods or services without agreeing the details of payment, delivery and so on. Such an agreement, whether written or not, constitutes a contract at law. If an employer had a contract which was concluded before the dispute began or there is a possibility that he might enter into a contract during or after it, that is no reason why he should be damaged by secondary action. Without such a contract he cannot supply goods to the employer in dispute or take them from him. And without such an active business relationship during the dispute, there is, in our judgement, no legitimate reason for taking secondary action against him.
A third reason for the reference to contracts is that, in common law, it is when contracts are interfered with that a cause of action arises. This clause itself opens by referring to the contract in question. If an employer does not have a contract for the supply of goods and services, then he has no cause of action in the event of any disruption to the supply of those goods or services, unless of course the industrial action which causes that disruption leads to the breach of other contracts to which he is a party. But I emphasise that it is very difficult actively to carry on business without a contract.
It was suggested that the unions would be unlikely to know the contractual

729
position. I really think that employees and their trade unions are not as ignorant of the business relationships of their employers as the noble Lord's remarks would suggest. Few employers can keep their order books or the source or destination of goods secret from their employees, even if they wished to do so. If a firm is providing goods or services directly to another employer, or receiving them from him, then there will be a contract. If an employer does not have a contract with an employer in dispute, he will be well advised to bring that fact to his employees' attention before secondary action by his employees gets very far, so that the organisers are aware of the risk of legal action if they go ahead.
If the situation is one which does not justify secondary action under the clause, one would expect the employer to bring that to the attention of his employees pretty quickly. As I said, the question of whether or not there is a contract is a matter which is capable of reasonably precise proof. I would invite the Committee to reject this amendment.
Lord McCARTHY: I am afraid that we cannot accept the answers of the noble and learned Lord. As I have said, it is a fortuitous fact whether there is a contract. We have given many examples of when there need not be a contract, and from what he said the noble and learned Lord has actually suggested to employers that they should not have contracts and should tell their workers that they have not got contracts, and that therefore they cannot use secondary action. I am afraid we cannot withdraw this amendment.
On Question, amendment negatived.
11.40 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 80E:
Page 19, line 33, after ("them") insert ("or between one of them and another person")
The noble Lord said: In a sense this is the mirror of the argument which has just been put, and I should have thought that it would now put the Government in some difficulty. The argument here is that as you can get through the gateway only by interfering with and disrupting supplies (and I quote from subsection (6)(a)) in pursuance of a contract between
730
them subsisting at the time—that is, between the employer in dispute and the secondary employer, if I may call him that and as he will become known—then it is really rather difficult to ask us to believe that this is a gateway to legality. The model set up by subsection (6)(a) is a child's guide to economic and industrial reality. In commercial life there is not just a contract between the supplier, the secondary employer and the employer in dispute: one may arrange with someone else to carry the goods; one may arrange with someone else to warehouse the goods, to process the goods, to deal with the goods in some other way.
Accepting that the Government now insist that it is interference with contract, direct disruption of supplies, and that the gateway to freedom is by contract, nevertheless, in that situation, by putting in the words "in pursuance of a contract between them" they allow the gateway to freedom only where the commercial contract which is relied upon in relation to Clause 16(1)(b) is that contract between the employer in dispute and the employer in the secondary action. That means that any other commercial contract, adding 16(1)(b) and (a) to subsection (2) in the light of the definition in subsection (6)(a) would amount to an illegal secondary action, because there would be secondary action within subsection (2) and an interference with a commercial contract within (1)(a) which was not a contract between them.
So the elementary justice, surely to be a gateway to legality at all it must include a case where there is a contract, for example, of carriage between one of the employers in order to fulfil the contract of supply. If that is not covered, the gateway to legality of secondary action disappears altogether, and the arguments of the noble Lord, Lord Orr-Ewing, need not have been carried on at all, because (3) and (4) do not really exist. I beg to move.
Lord MACKAY of CLASHFERN: So far as I understand the argument to which we have just listened, the noble Lord, Lord Wedderburn, seems to assume that the existence of some agent, middle man or carrier will mean that there is no direct contract between the two employers.
Lord WEDDERBURN of CHARLTON: No.
Lord MACKAY of CLASHFERN: In that case I have not understood what the noble Lord has been saying. It may well be my fault, but that is certainly how I understood him. In any case it seems to me that the essence of this matter is that the contractual relationship is required before one comes into Clause 16(1) at all and before one comes into the underlying tort which gives rise to this question. Therefore, I hold to the view—and I am sorry if I have misunderstood the noble Lord's argument on this matter—that the only reasonable basis on which the secondary action can be defined is by reference to existing contracts between them, defining the first supplier or first customer in that way.
Lord WEDDERBURN of CHARLTON: In order to encourage the noble and learned Lord to come back to the matter on Report, I put it in a sentence to explain where I think there is a misunderstanding. What I am saying is that the commercial contract in respect of which the action would be brought in court under Clause 16(1)(a), which is the ultimate point of the disruption, will be the contract of carriage, which will not qualify under Clause 16 subsections (3) and (4) because of the definition in Clause (6)(a). So the whole thing disappears in a whiff of smoke. We shall not divide, but we press the amendment.
On Question, amendment negatived.
[Amendments Nos. 80F and 80G not moved.]
11.46 p.m.
Lord RENTON Lord RENTON moved Amendment No. 80GA:
Page 19, line 40, leave out from ("Act") to end of line 43
The noble Lord said: I beg to move Amendment No. 80GA. It would have the effect of leaving out of subsection (7) of Clause 16 these words:
"and for the purposes of this section employers shall be taken to be parties to any trade dispute in which they are represented by an employers' association"
This, in effect, definition of "employers" could have an important bearing upon whether or not an employer had a right to sue under subsection (2), the last two lines of which read:
732
"if the employer under the contract of employment is not a party to the trade dispute"
One well understands the position where there is an employers' organisation negotiating with a trade union and reaching certain agreements and falling into dispute collectively. But there could be occasions when an employer expressly disagreed with the action of the employers' association, or one could perhaps have a very small employer in an out-of-the-way part of the country who was not aware of what was happening but would nevertheless suffer, and who, apart from this provision, would be hampered by the expression used here. Of course, it all turns on what is meant by the expression "represented".
May I say that this is only a probing amendment in order to get from the Government some indication of what they really have in mind with these words? I should like an indication from the Government, if they are prepared to give it at this very short notice—and I have given no notice of what I was about to say —on the points I have mentioned, namely, the case of the employer who is a member of the association but not in agreement with their policy or not in agreement with the position they have taken up in the dispute, and that of the smaller man who is out on a limb. I beg to move.
Lord MACKAY of CLASHFERN: We are concerned in this amendment with the meaning of the words,
"and for the purposes of this section employers shall be taken to be parties to any trade dispute in which they are represented by an employers' association."
It seems right to extend the trade dispute parties in something of this direction. May I say what we have been trying to achieve? These words achieve two things: first, they ensure that an employer who is in dispute is regarded as being in dispute even where he passes the responsibility for negotiating a solution to that dispute to his employers' association. But in addition these words ensure that an employer is not regarded as a party to a dispute simply because he happens to be a member of an employers' association which is representing other employers who are in dispute. Therefore, to take the example which my noble friend gave, of a small employer who happens to be a member of a large organisation but has no interest in or desire to participate in a dispute the association is

733
carrying on on behalf of others, he would not be covered. We consider that the draftsmen have been very capable in picking a very concise phrase which achieves these two things at once.
The second purpose is the more important. The words "they are represented" are significant. An employer cannot be represented, in our view, in a dispute if he is not himself involved and has no interests to be protected or represented. It is important, as my noble friend has pointed out—and we are obliged to him for doing so—that employers should not be subjected to secondary action simply because they are members of the same employers' association as an employer in dispute. That is the point to which we have given careful consideration and the use of the phrase "represented by" is intended to cover precisely that point.
Lord RENTON: I am most grateful to my noble and learned friend. I am convinced by his assurance and accordingly, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
11.50 p.m.
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON moved Amendment No. 80J:
Page 20, line 1, leave out subsection (8).
The noble Lord said: I beg to move Amendment No. 80J. We move this amendment formally to put it on the record.
On Question, amendment negatived.
[Amendments Nos. 80K to 80P not moved.]
Lord WEDDERBURN of CHARLTON Lord WEDDERBURN of CHARLTON had given notice of his intention to move Amendment No. 80Q:
Page 20, line 2, at end insert—
(" (9) Where an applicant relies upon the provisions of subsection (1) above in an application falling within section 17(2) of the 1974 Act, the court shall not grant an injunction unless—

(a) a reasonable opportunity has been given to the party against whom the injunction is sought to cross examine any person who gives evidence; and

(b) that party fails to show the likelihood of establishing the matter or matters which would afford a defence within the meaning of that subsection under the provisions of the 1974 Act as amended by this Act.

(10) Where an application for interdict relies upon the provisions of subsection (1) above, subsection (3) of section 17 of the 1974 Act shall not apply; and, accordingly, subsection (2) of that section shall in such case apply to interdict as it applies to an injunction.").
The noble Lord said: As noble Lords opposite will have noted, a number of the amendments that we have put down we shall obviously come back to on Report. The Government have notice of them. As regards Amendment No. 80Q, in my view the issue of labour injunctions in regard to industrial action is a matter of great importance which should be dealt with in some manner in this Bill. In view, however, of the hour, and also of the fact that Amendment No. 80Q is a new clause dealing with this matter generally, in which I hope also to have the assistance of my noble and learned friend Lord Elwyn-Jones when the matter comes to be debated, it seems to us more appropriate to debate the matter once then rather than now and again later. Accordingly, with that explanation I shall not move the amendment.
On Question, Whether Clause 16, as amended, shall stand part of the Bill?
11.52 p.m.
Lord McCARTHY: Despite the lateness of the hour, the Committee would not expect us to let this clause go by without saying something. We must recite very quickly how we see this clause very much as it was when it began. The clause removes the overall protection of Section 13 of TULRA where strikes involve breach of commercial contract and involve workers not party to the original dispute. We see no case for the removal of that general protection. This clause promises to establish an extremely limited area of secondary action protection on the most stringent conditions. Indeed, many members of the Government party opposite have said tonight that they believe that the conditions are so stringent that in fact there is no cover at all.
A whole series of tests are put up for trade unionists to get through: the principal purpose test; the likelihood test; the substitution test; the contract test and the home base on site picketing test. They all have to be got through in order for workers to have lawful secondary action. We say that that makes a mockery of the very notion of secondary action.

735
We say that this will mean endless legal wrangling over whether the secondary action is directly or indirectly achieved; whether it is likely or unlikely; whether it is in substitution or not in substitution; whether there was a contract, or whether there was no contract at all.
More important than all these things, we have argued tonight, I think with great force and great clarity, and with no argument from the other side, that this clause reaches into the very heart of primary action. The Prime Minister in a speech which she made, I think, yesterday, when she was talking about the nation speaking to the people—or maybe it was the people speaking to the nation; I cannot remember which—said that we can strike ourselves down. But we can only work ourselves up. We are against this clause because we believe that there are many honest, hardworking trade union officials who in this field, as in the field of picketing, are struggling to get themselves upright, and this clause kicks them in the teeth.
11.55 p.m.
Lord DAVIES of LEEK: I should like to say just a few words because the Prime Minister's manifesto was quoted: but at the end it was admitted what the Prime Minister meant when she said:
"We shall also make any further changes that are necessary so that a citizen's right to work and go about his lawful business free from intimidation or obstruction is guaranteed".
Every intelligent human being would want to agree with that. But we should like to know what the further action may be.
I shall take up just one further minute of time. Rather sadly, the marvellous work of ACAS and statutory bodies like that has been nullified by this clause. However at this late hour, much as I should like to expand on it for five or 10 minutes, I must not trespass longer on the time of the Committee. But it is a sad fact that ultimately, whatever the Government may think, that great organisation, the trade unions, will have to come face to face with the Prime Minister and with the other echelons of the Conservative Party to talk intelligently manto-man—well, she does act like a man! You cannot leave a mighty organisation such as this outside the orbit of intelligent discussion in the days of the micro-chip and new and modern technology.
The Earl of GOWRIE: We have had two major debates of great interest on Clause 16: first, an astonishing and riveting debate largely between my noble and learned friend the Lord Chancellor and the noble Lord, Lord Wedderburn, about whether there is a time-bomb ticking in this clause to prevent all forms of primary action—a measure which I do not think would receive any support even on this side of the Committee. It interested me very much that while both the noble Lord, Lord Wedderburn, and my noble and learned friend agreed with each other that this was not the intention, the argument was as to whether it was the effect.
We then came to our debate with the amendments of—perhaps I should not say all-party or even Conservatives and CrossBenchers—some party, a dissident body: the barons' revolt. One of my difficulties is that I am not entirely ever on the side of the angels. I have considerable sympathy with the revolting barons in their intention, if not always in the effects. But I think that the strongest claim that the Government can make for their approach to trade union legislation is to try to move along the lines of broad acceptability of members of trade unions themselves. Whatever the noble Lords, Lord McCarthy and Lord Wedderburn, tell us, with all their knowledge and experience, we still instinct that that is what we are doing and we instinct that that is what we are doing even when we are doing other things with which the union movement disagrees and which it does not like.
Finally, Clause 16 will require anyone contemplating sympathetic action at least to exercise the greatest care before doing so, to consider carefully the effects the action may have, what it is designed to achieve and against whom it is directed. If he does not pause and weigh all these matters carefully, he may well find that he is acting outside the immunity conferred by this clause and that the law does not protect him.
Noble Lords opposite see that as an extension, and they see it as a reason for criticising the clause. The Government are not in business to encourage secondary action or to make it easy to organise. On the contrary, we see no reason why someone who is contemplating sympathetic action should not be made to

737
pause and consider the consequences when these consequences can include putting businesses and jobs at risk and inflicting unnecessary hardship on the community.
We think we have made the first significant dent for a very long time on these kinds of practice, and that we have made it in a way which will endure in our industrial relations system. If we have done that, I think we shall have done a service to this country and to its economy which will certainly outlast us. That is why I beg to move that the clause stand part of the Bill.
Lord McCARTHY: The noble Earl has been kind and stated clearly the intention of the Government that primary action should not be affected. If it turns out that the noble Lord, Lord Wedderburn, is right and the Government are wrong, and that primary action is affected, may I therefore ask him: Will the Government then introduce legislation, along some lines or other, immediately to protect primary action?
The Earl of GOWRIE: I should have thought it unlikely that the Government would look with any favour at a law passed in their name through Parliament which made striking illegal at any time, in any place, and under any circumstances. It really is no good noble Lords trying to whip us into a discussion about primary action. That is not what this clause is about. I have made it clear what the clause is about. I suspect that there is an element of guilty conscience in this objection, and I think this clause should at least be given a chance to pass into the industrial relations practice of this country where we feel it will work very well.
Clause 16, as amended, agreed to.
The Earl of GOWRIE: I beg to move that the House do now resume.
House resumed.

SCOTTISH WIDOWS' FUND AND LIFE ASSURANCE SOCIETY BILL
Brought from the Commons, read la and referred to the Examiners.
STANDARD LIFE ASSURANCE COMPANY BILL
Brought from the Commons, read 1a and referred to the Examiners.
YORKSHIRE WOOLLEN DISTRICT TRANSPORT BILL
Brought from the Commons, read 1a and referred to the Examiners.
BANGOR MARKET BILL [H.L.]
Returned from the Commons agreed to with amendments; the said amendments considered and agreed to.
BRITISH RAILWAYS (CASTLE-FIELD) BILL
Returned from the Commons with the amendments agreed to.