§ 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?
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.
§ 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 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.
§ 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, 138.595
|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.|
|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.]597
§ 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 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 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 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 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
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
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
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—
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 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.621
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 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.
§ [Amendments Nos. 77D and 77E not moved.]632
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
§ 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 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.637
§ 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.638
§ 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, 99.647
|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.|
|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.|
§ 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.