§ House again in Committee.
§ 8 p.m.
Lord WEDDERBURN of CHARLTON moved Amendment No. 77J:
Page 18, line 12, after ("in") insert ("subsection (1) of").
The noble Lord said: I am aware of the hour and I shall therefore move this amendment speedily with three points to which the Government have not yet given an answer. If the defences of Section 13 were removed from the pickets only to the extent of subsection (1), certain liability would not arise. The most important in trade disputes would be simple conspiracy to injure, on which I commented in dealing with the last amendment. The next most important, perhaps the most important of all, would be no liability in respect of interference with trade as such, and other open-ended liabilities of the kind Lord Scarman
spoke of in the recent steel case when he said:
Open-ended expressions bring judges inevitably into the industrial arena, exercising a discretion that may well be misunderstood by many and which can damage confidence in the administration of justice".
And thirdly, the most important of all: the removal of Section 13(3) could mean that where those who are unlawful pickets join those who are lawful pickets on the same picket line, the lawful picket could themselves, by joining with those who are using unlawful means without the protection of subsection (3), lose their protection as lawful pickets.
§ I accept what the Government said in another place, that such liability could not arise "simply by association". But as the Government accepted, if they in any way combine with the unlawful pickets—if there were in any way a combination with the unlawful pickets—then, without the protection of subsection (3), there would be the use of unlawful means and a conspiracy to use unlawful means. On that basis, especially because of the third point—and I hope the Minister will answer all three—I urge the amendment very strongly.
§ Lord MACKAY of CLASHFERN
In my submission, the main disadvantage of the amendment is the uncertainty it would create. At present, the affect of subsection (2) of the clause is quite clear. It says in effect, "If someone pickets other than at his own place of work, he forfeits the immunities provided by Section 13 of the Trade Union and Labour Relations Act 1974". That is perfectly straight-forward. I accept that the main immunity is that for inducing a breach of a contract conferred by Section 13(1). It is that subsection which is nearly always at issue in these cases. But if we were to accept the amendment, we should be creating the impression that Parliament intended some immunity to remain under Section 13 for secondary picketing without specifying what that immunity was.
I am sure the noble Lord will agree that Section 13(1) is unquestionably the most important part of the section; indeed, I think that was implicit in what he said. So far as the other immunities are concerned, the Government's position is that we see no reason why people who are outside the licence, as I think the noble Lord 655 called it, of the new picketing section should enjoy any immunity at all. We doubt whether Section 13(3) is left with any substance in present circumstances, but even if it does have substance, we cannot see any reason why pickets who are outside the protection of lawfulness should enjoy that. So far as discretion is concerned, this does not appear to me to be the kind of discretion that Lord Scarman was referring to in the case cited.
As for the point about conspiracy, we take the stand strongly that merely to be in company with persons who were not, what I might call, licensed or qualified pickets, would not of itself involve the licensed people in being guilty of conspiracy. It is only if lawful pickets actively invite or encourage outsiders to join them in picketing that they may run the risk of losing their own immunity, and if they do that—if they do in fact conspire—we do not see any reason why they should enjoy immunity. Accordingly, I ask the Committeee not to agree to the amendment.
§ Lord WEDDERBURN of CHARLTON
I am disappointed by the noble and learned Lord's answer. There are many points of detail one could debate, but I will restrict myself to the major point, which is the reason why I must say that we will not feel able to withdraw the amendment. Let me make it clear that it is no part of our argument on this, or indeed on any other, amendment to the clause that the unlicensed picket should be covered by the immunity, although we think the ground the Government are traversing on that is unwise, but we are not arguing that on this amendment.
We are saying that the liability which can be encountered by lawful pickets, in particular in regard to conspiracy to injure and also in particular the use of unlawful means or the combination to use unlawful means, is quite unfair to those whom the Government purport to protect under this Clause. I noted with care the noble and learned Lord's words. It is true, I accept, that merely to be in company with another person is not to combine with him, but I take issue with him that combination starts only at the point—I think I have his words exactly—where someone actively invites or encourages another to come and join 656 with him. There is an area of territory in between where the law of conspiracy quite plainly begins to operate, and that is where there is a combination which is less than invitation or encouragement but which is still a combination. It is therefore possible, and might be quite common, for lawful or licensed pickets unintentionally to lose their protection by merely joining with activities of unlicensed pickets. Although we will not divide on the amendment, we press it on the Government and we cannot withdraw it.
§ Lord WEDDERBURN of CHARLTON
I entirely accept what the noble and learned Lord says; there is, of course, the element of agreement. What I was answering in the Lord Advocate's argument was that agreement necessarily implied active invitation or encouragement. There are many cases, which I am sure the noble and learned Lord will accept, where combination has consisted in an agreement which did not begin with the invitation or encouragement by one of the conspirators, but the acceptance by him, as it were, of an invitation from the others.
§ The LORD CHANCELLOR
Guilt by association is not an agreement, and with great respect I think that the noble Lord is chasing his own tail. Regardless of whether my noble and learned friend was right or wrong in describing the point at which conspiracy begins, if there is no agreement, there is no conspiracy.
§ Lord WEDDERBURN of CHARLTON
I entirely accept what the noble and learned Lord says, as indeed one would have to; those words are obviously unexceptionable. But if the noble and learned Lord accepts the authority of, for example, the case of Huntley v. Thornton, he will see an instance of persons who were on one side or the other of the line. Two defendants were not parties to the conspiracy; four were. But among the four certainly not more than one or two actually encouraged or invited the combination. Agreement begins at a different point from invitation or encouragement. Therefore, I maintain my stand 657 that the lawful pickets might well be affected short of inviting the unlicensed pickets on to their picket line, and, not being lawyers, might well unintentionally do things which rendered them liable for matters for which the clause appears not to make them liable.
§ On Question, amendment negatived.
§ 8.11 p.m.
§ Lord WEDDERBURN of CHARLTON moved Amendment No. 77K:
Page 18, line 13, leave out ("picketing") and insert—
("attendance at or near a place in contemplation or furtherance of a trade dispute.")
§ The noble Lord said: I shall try to be equally brief upon this matter, and I hope that we can join issue on the central point and perhaps not engage on too long a search for authorities. The essential case of my noble friends and myself on this point is a very simple one. The term "picketing" is not a term of art in law. It is true that the Government have used the word "picketing" as the side note of the new Section 15 as proposed in Clause 15 of the Bill, but the term of art of "picketing" is unknown to the law.
§ Every time that the law has spoken of picketing, from 1875 until today, it has spoken in terms of "attendance". It has spoken in fact in terms of attendance in contemplation or furtherance of a trade dispute. The point is an important one, because in subsection (2) all the civil liabilities attend upon trade unionists and their rights are deprived where in the course of picketing they do certain acts.
§ In the same clause the words attending "at or near" a place are used. I take it that noble and learned Lords would not dispute with me the fact that where Parliament, in the same section, indeed in the same Act, uses two different words, it is the right and proper approach for the courts to investigate and perhaps to presume that the Legislature intended slightly different things because it did not use the same words.
§ The issue, for example, arises whether or not those who might otherwise be picketing would leave perhaps notices or placards—sometimes known as "ghost" picketing in certain industries—or would otherwise leave communications at a place of work. It is perfectly possible 658 on the understanding that I have and on that of a number of those with whom I have discussed the matter and who are more experienced than myself in statute interpretation, that the word "picketing" in subsection (2) could, and perhaps should, be interpreted as meaning something more than attendance.
The noble and learned Lord's right honourable friend in another place said that that was not the intention of the Government. He said that it is not picketing if pickets themselves are not present. If it is not picketing when pickets themselves are not present, we ask the Government to clarify the position for workers who, in any event, will have enough trouble understanding this law, by putting in place of the word "picketing" the words of the amendment:
attendance at or near a place in contemplation or furtherance of a trade dispute.
If that is what is meant by picketing, let the clause say so. If the word "picketing" remains, it will mean something different, and indeed to the courts it will surely mean something wider. I beg to move.
§ Lord MACKAY of CLASHFERN
We have used the words "in the course of picketing" in this clause because they express neatly and precisely what we want to achieve. Our aim is to remove immunity from pickets who in the course of picketing other than at their own place of work induce a breach of contract. We are not concerned in this clause with people who attend at a place of work for some other purpose; and this really is the point. We are advised that if we use some formula other than "in the course of picketing", such as the one suggested in this amendment, we might by mistake restrict activities other than picketing; for example, the right of a shop steward from a particular factory to address a meeting of workers at the gates to another workplace. In other words, we have used "in the course of picketing" in order to reduce the chances of misinterpretation.
We have not defined picketing in the clause because we think it unnecessary. We are aware of course that the word "picketing" has not previously been used in statute, other than in a marginal note, and when the noble Lord refers to the 659 law, I assume he means statute law. But it has long since passed into common parlance. I should have thought that the Shorter Oxford English Dictionary meaning of the word is fairly precise. The courts themselves have used the term on occasions. In the case of Lyons v. Wilkins, Lord Justice Smith referred towhat is ordinarily understood by picketing".In the case of Torquay Hotel Company v. Cousins, to which the noble Lord has referred on several occasions, the words of the order which granted the restraint included the phrase:picketing at or near the entrance or entrances of the Imperial Hotel for the purpose of persuading drivers of oil tankers not to deliver fuel oil there".I am sure that the noble Lord will agree with me that precision is demanded to a very high standard in words in an injunction. If the phrase was good enough for an injunction, it must be good enough for us. I would ask the Committee not to accept the amendment.
§ Lord WEDDERBURN of CHARLTON
Perhaps it is necessary for me to say a little more than I said earlier. Perhaps in the interests of speed I did not put the case as fully as I should have done. I shall put it in terms of a reply, if I may. First, by saying that the possibilities of liability might be wider if our formula were inserted, was not in my submission justified by the example—and the only example—that the noble and learned Lord the Lord Advocate gave. Attending to address a meeting at or near the place might or might not be lawful, whether or not the word "picketing" was used, whether or not the word "attendance" was used. We all agree that if it amounted to an obstruction, it would not be lawful in that sense, on the highway, anyway. So that seems to make no difference one way or the other.
So far as the case of Lyons v. Wilkins is concerned, I am slightly alarmed by the Government relying upon that case which went twice to the Court of Appeal and in which I well remember Lord Justice Lindley saying that you cannot make a strike effective without doing more than is lawful. I should have thought that remarks made in Lyons v. Wilkins were highly undesirable guides to the modern law on picketing, even under this Bill.
660 Finally, so far as the case of Torquay Hotel Company v. Cousins is concerned, I am not sure of the conventions of your Lordships' Chamber. I was in certain ways concerned with this action, and I wish to say merely that the order in that case is still reasonably fresh in my mind, and if one looked at the pleadings one would see perfectly clearly that the order of the court was plainly made within the terms of the facts and pleadings in that case. I accept that the word "picketing" was used, but the meaning of the word "picketing" was absolutely clear in that case because of the facts and pleadings placed before the court. That is quite different from using the word in a statute.
The noble and learned Lord did not at all answer the point as to whether leaving a placard at a place would, in the Government's view, be picketing. The noble and learned Lord's right honourable friend in another place said that it would not be picketing; but the noble and learned Lord did not say anything about it. It is a matter of great concern to the trade union movement. If our amendment does not get the words right, I press upon the Government the need to reconsider the word "picketing", because I infer from the noble and learned Lord that there are matters other than attendance which would give rise to liability. If there are matters other than attendance which could give rise to liability, the trade union movement is entitled to know what they are.
At this point I think it would be right, in view of the hour, to beg leave to withdraw the amendment, but in so doing to ask the Government to reconsider the matter for the Report stage, and to say that we shall certainly return to it on Report if no proposals are made from them. I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 8.19 p.m.
§ Lord WEDDERBURN of CHARLTON moved Amendment No. 77L:
Page 18, line 17, at end insert—
("(4) Nothing in subsections (1), (2) and (3) above of this section shall affect criminal liability; and accordingly, for the purpose of such liability, it is hereby declared that it shall be lawful for one or more persons in contemplation or furtherance of a trade dispute to attend at or near—
§ The noble Lord said: This is an amendment of very great importance, and I trust that your Lordships' Committee will accept that it needs a few moments of time. It is concerned with the argument about the extent to which the amendments of picketing law involve new criminal liabilities. In order to be speedy but accurate, I shall try to pick my words with great care.
§ The position of the Government, as we understand it from the debates in another place, is that this Bill will not create additional criminal liabilities. In saying that, I am conflating a number of quotations, which I have in my notes, from Mr. Mayhew and the right honourable gentleman the Secretary of State—no new criminal liabilities.
§ Amendments were moved in another place which tried to make that more clear. They were not acceptable to the Government, and the last ones, on Report, were not acceptable largely on drafting grounds. We therefore thought very carefully about the character of the amendment which could, and should, be moved. The one we have put down may be described as re-enacting for the purposes of the criminal law the old section on picketing, leaving the Government with their new clause and their new section for the purposes of civil law.
§ The argument about the criminal law is to what extent the old section on picketing, which has been there since 1906—and I take it that the noble and learned Lord would accept that the courts have treated Section 2 of the 1906 Act, Section 134 of the 1971 Act and Section 15 of the 1974 Act as effectively the same—has been effective in giving any protection against criminal liability. In the view of many people it has not. There was a time at which I tended to that view myself. However, I thought that I should revise my view when I read in the leading case of Hunt v. Broome in 1974 the remarks and dicta—and they are dicta, but very authoritative dicta—of the noble and learned Lord, Lord 662 Reid, and the noble and learned Lord, Lord Salmon. I feel bound to repeat their actual words very briefly.
The noble and learned Lord, Lord Reid, was speaking about a case in which a building union official attended for a few minutes in front of a lorry and obstructed it, and was convicted of wilful obstruction of the highway. In the course of that hearing the noble and learned Lord, Lord Reid, said this at page 92 of the Industrial Cases Reports for 1974:
Attendance by one or more persons on a highway must inevitably cause some obstruction of the free passage along the highway, and were it not for Section 134 the appellant would, by attending for the purpose of persuading Dickinson"—
that is, the driver—
not to do what he was employed to do, undoubtedly have committed an offence against Section 121 of the Highways Act".
He then discusses whether the section is meaningless or whether it does in fact protect.
The noble and learned Lord, Lord Salmon, is more positive. Lord Salmon said this about the section—the same as the 1906 and the 1974 sections, in effect. At page 96 he said:
The section gives no protection in respect of anything the pickets may say or do whilst they are attending if what they say or do is itself unlawful.
"But for the section, the mere attendance of pickets might constitute an offence under Section 7(2) and (4) of the Act of 1875"—
I pause to note that the noble and learned Lord will of course be aware that that relates to the offences of persistent following and watching or besetting unlawfully and without authority—
or under the Highways Act 1959"—
that is, wilful obstruction—
or constitute a tort, for example, nuisance. The section therefore gives a narrow but nevertheless real immunity to pickets. It clearly does no more".
In that narrow and real immunity the noble and learned Lord, Lord Salmon, has included three criminal liabilities. If, therefore, it is the Government's case that they wish to do nothing that will increase the area of criminal liability, they cannot allow the clause to constrict the places at which people will picket and encounter that criminal liability. It follows as night the day that if the clause affects the position in regard to the legality
of picketing, if the noble and learned Lords, Lord Salmon and Lord Reid, are right, then the criminal law is affected as well.
Indeed, among the many quotations that I would wish to read the Committee of the right honourable and learned Attorney-General in his statements to the House of Commons on 19th February and 18th March, I may perhaps take just one, where, with great respect, I accept that the Attorney-General sets out the position very fairly for all schools of thought, because there is more than one school of thought upon this matter. If I may read him at column 1348 on 18th March, I quote him as saying this:
…if there were an obstruction under the Highways Act, where it was a lawful picket, it is open to argument that section 15 might provide immunity. Some say that section 15 is declaratory; others say that it would go further and provide an immunity in that case. But whatever the precise legal effect of section 15, its practical consequences are not in doubt. It confers no immunity from prosecution for obstruction in the sense in which that term is normally understood: that is, physically preventing a person from going where he wants to go, not only into the works, but also along the pavement to the other end of the road. If pickets go beyond peaceful persuasion and obstruct the passage of workers or vehicles, everyone knows that there is no protection for that sort of act".
§ Now, accepting that for the moment and not quarrelling with it (although I could in terms of very small detail), there are two schools of thought, and one is that the old sections on picketing provided a narrow and real protection against criminal liabilities. The noble and learned Lord, Lord Salmon, is one of that school of thought. The noble and learned Lord, Lord Reid, appears to think that that school of thought is at least as arguable as the opposite. Therefore, we say that if the Government are to be true to their word, if the Government are to honour their pledge that no new area of criminal liability will be created, the only way to do it, or at least a way to do it—we do not claim to have the only solution; if the Government have an equally good one, we are naturally happy to accept it—is to enact the old section for the purposes of criminal law, leaving the Government with their new clause for civil law. Our amendment is carefully drafted in one sense, in that we merely restate precisely that section which has been there since 1906 and which trade unions had to work very hard to obtain, in terms that it applies 664 only in the area (and I hope we have made this clear in our draft) of criminal law.
§ If the Government cannot enact something of this kind, it follows from the statements of the Attorney-General and Lord Salmon and Lord Reid, and indeed others who, in view of the hour, I am not quoting, that there is at least an arguable case—I would say there is a clear case, but there is at least an arguable case—that criminal liability is affected. If the Government are unable to stand up and say that there is no arguable case—disagreeing, thereby, with one school of thought accepted as possible by the Attorney-General, and disagreeing, thereby, with the noble and learned Lord, Lord Salmon, and it seems possibly Lord Reid as well—then the Government must surely accept some amendment to set out clearly that which they say themselves they want to do. I beg to move.
§ 8.25 p.m.
§ Lord MACKAY of CLASHFERN
In our submission, this is a misleading and potentially dangerous amendment. Section 15 of the 1974 Act and Clause 15 of the Bill, which would amend that section, are concerned with the civil law, not, in our submission, with the criminal law. As the Attorney-General said in another place in a Statement on 19th February which was repeated in your Lordships' House by my noble and learned friend the Lord Chancellor, and with which I agreed as representing the principles of the law of Scotland:… the law on picketing does not, in any real way, change the criminal law and in no way diminishes the rules which govern public order. The criminal law of the land applies to pickets as it does to anybody else. Let there be no illusion that the immunity provided under the civil law enables pickets to break the criminal law".Section 15 of the 1974 Act states that it is lawful for someone to attend at or near a place of work,for the purpose only of peacefully obtaining or communicating information, or peacefully persuading any person to work or abstain from working".If a picket goes beyond such peaceful behaviour, the law affords him no protection. The law, we would submit, is quite plain on this point. Everyone has the right to go about his work free from interference by anyone else. If anyone tries to prevent someone else from exercising those rights—for example, by the use or threat of violence, intimidation or obstruction—he is breaking the law.
665 The noble Lord has expressed concern that Clause 15 might increase the likelihood of criminal prosecutions of pickets, particularly, I think, for obstruction. As he has said, the view has been put forward that Section 15 of the 1974 Act provides some immunity for pickets to commit offences, notably obstruction. However, my right honourable friend the Attorney-General, who advised the Standing Committee in another place, stated quite clearly that Section 15 does not confer any substantive immunity for the offence of obstruction in the sense in which it is generally understood; namely, physically preventing a person from going where he wants to go. Nor does a picket need any criminal immunity, since if he merely stands on the pavement or on the side of the road without interfering with the rights of others to pass and repass, and peacefully communicates information, perhaps by holding a placard or by speaking, or tries to persuade others not to enter their place of work, he is not committing an obstruction even in the technical sense.
This amendment, however, would force the courts, we would submit, to look for some substantial criminal immunity enjoyed by pickets, which in reality does not exist and was not intended by Parliament to exist when Section 15 and its predecessors were enacted. We would think the law reasonably clear on this aspect at present, and this amendment, we would say, would throw it into confusion. Therefore, we would invite the Committee to reject it.
It is fair to say, in view of the observations quoted from Hunt v. Broome, that one must take the remarks of the learned judges in the context of the case with which they were dealing. That was a case where obstruction was committed by the pickets stepping out in front of a lorry, preventing it from passing into the works.
§ Lord DAVIES of LEEK
I have tried to follow this. It has been a brilliant debate. For those of us who are laymen, it is difficult to follow every phrase. But I cannot agree completely because the current law on picketing (up to now, before this Bill becomes an Act of Parliament) is, in my estimation, and in that of the trade union movement and other movements, defined in Section 15 of the Trade Union (Labour Relations) Act 1974, 666 amended by the 1976 Act and the additional Section 13 of the 1974 Act, as amended. I find that various items have been questioned in the courts and that the High Court itself was not sure of the conclusions. It is agreed in the trade union movement that is knowledgeable, by academics and scholars and by the rank and file of the movement who understand it in practice, that there is obscurity here and that it needs clarifying.
§ Lord WEDDERBURN of CHARLTON
We cannot accept the noble and learned Lord's interpretation. In the interests of time, I am being pressed hard not to take issue with him. I do not accept his explanation that Lord Justice Salmon in Hunt v. Broome makes it clear. With respect, it is wrong in law. We shall not divide on this amendment but will divide on the Motion that the clause stand part of the Bill.
§ On Question, amendment negatived.
§ [Amendment No. 77M not moved.]
§ On Question, Whether Clause 15 shall stand part of the Bill?
§ 8.32 p.m.
§ Lord McCARTHY
The Government would not expect us to allow this clause to go through without opposition. The clause is designed to limit picketing to the place of work and to limit the role of trade union officials. We have tried to argue in the series of debates on our amendments that there is no case for this and we have sought to suggest, in particular in respect to limiting the role and scope of the trade union officials, that this is not in the Government's interest even given the general purposes of their Bill. Nothing has been given us on these points. All these amendments have been moved. Nothing has been promised. Therefore, at this stage, despite the time of night, we must force this matter to a Division.
I should like to say in conclusion that nobody should get the idea—and I have said this repeatedly, as has my noble friend Lord Wedderburn—that in voting in this way and in forcing a Division we are condoning or doing anything other than deploring violence on picket lines or intimidation, or watching or besetting, or any aspect of picket behaviour which is unlawful and has always been so. We 667 are arguing that the Government proposals will not help but will give rise to all kinds of new liabilities, including criminal liabilities; and therefore it falls to us to divide the Committee on this clause.
§ Lord RAWLINSON of EWELL
Before my noble friend replies, I should like to say, having had some responsibility at some time in respect of advising Her Majesty's Government of that time on these matters, that I have absolutely no doubt whatsoever that this clause is a very useful addition and an important one. I am glad that Her Majesty's Government are going to insist upon Clause 15 standing part of the Bill.
The Earl of GOWRIE
The noble Lord, Lord McCarthy, said that the Committee would not expect him to let this clause go through without a Division. Having heard the whole debate, and having heard especially the substantive contributions of the noble Lord, Lord Houghton of Sowerby, and the noble Baroness, Lady Burton of Coventry, speaking from the side of noble Lords opposite, I should have thought that the wisest thing they could do would be to let the clause—not particular amendments—go through without Division. They are out of touch with the mood of the Committee, let alone with the mood of the country, on this issue. Flying pickets, secondary pickets, whatever you call them, are inherently intended to frighten. In substance, those were the words of the noble Lord, Lord Houghton. They are inherently intended to frighten both the workers concerned and the general public—which is why they are so objectionable and why we have outlawed them.
While employment legislation is concerned essentially with contracts and attempts to induce breaches of contracts and therefore with civil relationships, the cordon sanitaire and the like cited by the noble Lords, Lord Wedderburn and Lord McCarthy—and I accept that they are in no way encouraging or condoning violence—are essentially to do with criminal law.
Our contention is that what we are doing is providing redress for a deep civil wrong and a civil wrong which is liable to, and usually does, lead to wrongs in other areas and to offences. The other 668 thing I would say is this. With my noble and learned friend Lord Rawlinson, I think that one of the most pernicious aspects of picketing is what the previous Attorney-General, Mr. Sam Silkin, described in a memorable phrase as "lawful intimidation"; in other words, the threat to take away someone's union card and hence his job if he crosses a picket line. This is where the Bill's provisions on the closed shop, which we have already debated, will interact with this clause. When my noble friends look at what we are doing on secondary picketing they must take it in the context of our reforms on the closed shop.
As regards any other form of intimidation, the law is already absolutely clear. Mr. Callaghan, the previous Prime Minister, when he was Prime Minister, said:Everyone in this country is entitled to cross a picket line if he disagrees with the arguments that are put to him. There is nothing to stop any citizen. I would not hesitate to do it myself. I would not hesitate to cross a picket line if I believed it right to do so".I think that the remarks of the right honourable gentlemen the Prime Minister of that time are much more congruent and nearer to the mood of the Committee this evening than anything which has been said by noble Lords opposite. That, I think, is the feeling of the public and of the country, and that is why we are determined to see that this clause should stand part of the Bill.
§ Lord UNDERHILL
I must say something on this, in view of the remarks of the noble Earl, Lord Gowrie. Time and time again we have had quoted to us in various debates the remarks of my noble friends Lord Houghton of Sowerby and Lady Burton of Coventry. Frankly, I will give second place to no one in my opposition to certain things that have happened in recent years. As my noble friends have said, we oppose violence and intimidation. To attempt to divide the Committee as if some of us do believe in violence and others do not—
§ Lord UNDERHILL
It may not have been what the noble Earl said but that was the implication. Otherwise there would be no need to refer continually to the remarks of my noble friends. I am 669 with them, and I think that all my noble friends are with them, in the remarks that they made. What we are concerned about—and I think that my noble friends on the Front Bench have made this clear—is that in our opposition to and detestation of some of the violence that has occurred, we must not create new legal impediments to proper trade union activities. My noble friends in moving their various amendments have outlined sufficient anomalies to show that there are grave dangers of this. I am not going to repeat their arguments, but there are a number of points which have arisen as to where it may or may not be lawful to carry out picketing—points of doubt
§ Resolved in the affirmative, and Clause 15 agreed to accordingly.670
§ have been created by the wording of this clause. We on this side are united in our condemnation of victimisation and of any kind of intimidation; but what we must not do is to use that as an emotional excuse for doing things which might damage proper trade union activities. That is what may happen unless the position is made absolutely clear.
§ 8.40 p.m.
§ On Question, Whether Clause 15 shall be agreed to?
§ Their Lordships divided: Contents, 84; Not-Contents, 35.669
|Alexander of Tunis, E.||Gowrie, E.||Mowbray and Stourton, L. [Teller.]|
|Amory, V.||Greenway, L.|
|Ampthill, L.||Gridley, L.||Nugent of Guildford, L.|
|Auckland, L.||Hailsham of Saint Marylebone, L. (L. Chancellor.)||Nunburnholme, L.|
|Bellwin, L.||Orr-Ewing, L.|
|Belstead, L.||Hankey, L.||Rawlinson of Ewell, L.|
|Berkeley, B.||Hanworth, V.||Reigate, L.|
|Bessborough, E.||Harmar-Nicholls, L.||Renton, L.|
|Boothby, L.||Harvington, L.||Ridley, V.|
|Brougham and Vaux, L.||Henley, L.||Robbins, L.|
|Cairns, E.||Hives, L.||Rochdale, V.|
|Caithness, E.||Hood, V.||Rochester, L.|
|Camoys, L.||Hornsby-Smith, B.||Romney, E.|
|Cathcart, E.||Hunt of Fawley, L.||St. Aldwyn, E.|
|Cockfield, L.||Hylton-Foster, B.||Sandys, L. [Teller.]|
|Craigmyle, L.||Kemsley, V.||Seear, B.|
|Crathorne, L.||Killearn, L.||Sempill, Ly.|
|Cullen of Ashbourne, L.||Kilmarnock, L.||Spens, L.|
|De La Warr, E.||Lindsey and Abingdon, E.||Stamp, L.|
|De L'Isle, V.||Long, V.||Strathcona and Mount Royal, L.|
|Denham, L.||Lucas of Chilworth, L.||Torphichen, L.|
|Drumalbyn, L.||Lyell, L.||Trefgarne, L.|
|Dundee, E.||McFadzean, L.||Trenchard, V.|
|Eccles, V.||Mackay of Clashfern, L.||Tweeddale, M.|
|Ellenborough, L.||Macleod of Borve, B.||Vaizey, L.|
|Elton, L.||Mansfield, E.||Vivian, L.|
|Ferrers, E.||Massereene and Ferrard, V.||Ward of Witley, V.|
|Fortescue, E.||Mottistone, L.||Westbury, L.|
|Gainford, L.||Young, B.|
|Ardwick, L.||Kaldor, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Birk, B.||Llewelyn-Davies of Hastoe, B.|
|Collison, L.||Lockwood, B.||Ross of Marnock, L.|
|David, B.||Lovell-Davis, L.||Stewart of Alvechurch, B.|
|Davies of Leek, L.||McCarthy, L.||Stewart of Fulham, L.|
|Gaitskell, B.||Milner of Leeds, L.||Stone, L.|
|Galpern, L.||Northfield, L.||Taylor of Mansfield, L.|
|Hale, L.||Oram, L.||Underhill, L.|
|Hatch of Lusby, L.||Peart, L.||Wallace of Coslany, L. [Teller.]|
|Heycock, L.||Phillips, B.||Wedderburn of Charlton, L.|
|Howie of Troon, L.||Pitt of Hampstead, L.||Wells-Pestell, L.|
|Janner, L.||Whaddon, L.|
§ Clause 16 [Secondary action]:
§ 8.48 p.m.
Lord WEDDERBURN of CHARLTON moved Amendment No. 77N:
Page 18, line 18, after ("in") insert ("subsections (1) or (3) of").
§ The noble Lord said: There has been a certain amount of difficulty among my noble friends and myself about how to deal with a central issue in the Bill. There are four amendments which relate to a proposition which we feel we have to put to the Government: namely, that Clause 16 infringes the primary right to strike and is not restricted as the Government spokesman in another place has continually insisted to what the Government call secondary action.
§ The amendments are Nos. 77N, 80J, 80H and 80K. If I may explain very briefly, the subsection of the clause which is dealt with in one way or the other by these four amendments is subsection (8). Subsection (8) repeals subsection (3) of Section 13 of the 1974 Act which provides rights to workers acting in furtherance or contemplation of a trade dispute. It is our contention that if subsection (8) remains in its present form that will, over a very wide area, imperil the right to strike. Time after time the Government have insisted that that is not their intention. There are therefore two things that could be done with the clause if our argument is based upon even reasonable grounds. First, the subsection—
The EARL of GOWRIE
Will the noble Lord be so kind as to give way? I am not clear. My understanding was that we would have a debate on this very important and substantive issue on Amendments Nos. 80H, 80J and 80K. Is the noble Lord now moving the debate on Amendment No. 77N? I had the clear understanding that we would take this debate on Amendments Nos. 80H, 80J and 80K. It seems to me far more appropriate for the Committee to take it at that time.
§ Lord WEDDERBURN of CHARLTON
I apologise for causing the noble Earl to wait a moment before I responded; I was trying to take advice from my noble friends, who are more experienced in these matters than I. I am advised that 672 the preferable course in moving our amendments would be to press Amendment No. 77N as the substantive one, for a reason to which I was about to come when the noble Earl intervened.
I appreciate that there are certain conversations and events to which reference is not normally made in the Chamber, and the matter has not remained in the hands of the noble Earl and myself. The advice which I have received is that the most expeditious way of dealing with our case—and I trust the Members of the Committee will accept that that is what we wish—is to press this amendment for a reason which I will now explain. We believe that subsection (8), by repealing subsection (3) of Section 13, imperils the primary right to strike. There are two ways in which the matter can be dealt with. If I may put them in broad terms and then relate them to the amendments, either the repeal of subsection (8) could be related only to this section—or perhaps I should say the repeal of subsection (8) could be made to apply only to subsidiary action or the subsection could be deleted from the clause.
We understand fully the Government's objection to deleting subsection (8) entirely. I accept that if one did that there would be certain ways in which secondary action might escape civil liability, which the Government, in their own logic, do not wish to see. Therefore the following course is that which I am advised is the right one in dealing with the rather complex matter of a number of different amendments. We shall press upon the Government this amendment which we say is its own logic. If the Government do not accept it, and I expect that they will not, we shall press the matter to a Division as a matter of principle, subsuming therein the further Amendment No. 80J, which it will then be necessary only to move formally because, of course, if the Government accept this amendment they would have to accept Amendment No. 80J as well.
I begin by repeating, but without quoting every occasion, that on occasion after occasion the Government have said, and we accept them at their word in this, that it is not their intention to affect the primary right to strike. The noble Earl said it twice on Second Reading, the right honourable gentleman the Secretary 673 of State said it twice in the other place and Mr. Mayhew, the Under-Secretary of State, has said it three or four times. They have, however, never given a reasoned answer to our case that the repeal of subsection (3) imperils over a wide area—I do not say in every case—the legality of ordinary wage dispute strikes between an employer and his own workforce, be they organised in a union or not, or in contemplation of the furtherance of an ordinary trade dispute.
As I mentioned in connection with an earlier amendment, in order to save time, the three areas of tort liability which were protected by the 1906 Act—and the matter is only explicable by a brief reference to the development of the law—were simple conspiracy, interference with trade and inducing breach of contract of employment. When the Donovan Commission came to inspect the defences or rights which were given to trade unionists and workers in furtherance of trade disputes, they expressed surprise in paragraph 887 of their report in 1968 that the protection was afforded in trade disputes only to inducing breach of contracts of employment. They said:It is not possible at this distance of time to say why the protection afforded by Section 3"—that is the relevant section of the 1906 Act—was confined to breaches of contract of employment".The first limb of the section has its origin, as we said, in a Private Member's amendment by Sir Charles Dilke. It was an occasion which led to the first parliamentary "demo", when the Unionist Members walked out at 11 o'clock on Friday night, and all your Lordships no doubt trust that that event will not recur, and that indeed such an hour will not recur.
The report goes on:The contracts of which trade union officers were most likely to induce a breach were contracts of employment and the cases decided in the courts against trade unions seemed to be cases of that kind".It may therefore have seemed to Sir Charles Dilke at that time that this was a situation that called for immediate action and there was no need to go further.
The reading of debates in volumes 162 to 167 of the 1906 Bill make it clear 674 beyond peradventure that no single speaker envisaged that there was a further economic liability in terms of civil liability of that sort. But subsequently, as the Donovan Report recounts and as all the books of labour law recount, areas of the common law were discovered or developed—the new jurisprudence would say "created", but the word does not matter. New areas of liability were found in the case law which were not protected by the 1906 Act and which no one in 1906 dreamt needed protection.
The first was the liability which began in the 1950s for indirect inducement of breach of commercial contracts, beginning with the case of Thomson v. Deakin in 1952, and developing in England through the case of Stratford v. Lindley, and in Scotland through the case of Square Grip v. MacDonald, to which I have already made reference. That was the first area of liability in regard to which attention was required, and the Donovan Report recommended that the extension of protection or immunity for trade union rights should be extended from inducing breach of contracts of employment to inducing breaches of all contracts, although—and I want to be quite clear about this and not be unfair—a majority of seven to five said that although that extension should take place it should be given only to official union action and not to unofficial. I make that point deliberately because the Government's clause makes no distinction between official and unofficial action and is therefore not related to that aspect of the Donovan Report and recommendations. The Donovan Commission was clear that inducing breach of commercial contract albeit indirectly had to be protected to maintain the right to strike.
The second development was in 1969 and cases thereabouts, encapsulated so well in the comment of the noble and learned Lord, Lord Denning, in the case of Torquay Hotel v. Cousins, that the time has come when the principle of inducing breach of contract:…should be further extended to cover deliberate and direct interference with the execution of a contract without causing a breach".The memorandum by the Department of Employment to the Select Committee of the House of Commons in March last spoke of the important new tort liabilities facing officials because of these developments.
675 Thirdly, in 1964 the debate which had gone on for many years, about whether there was a tort of civil intimidation beyond the threat of violence, was resolved by the Court of Appeal with the answer "No", but was overruled by the House of Lords and finally decided with the answer "Yes". The importance of that to this debate is that it was held by the House of Lords as a breach of contract for the purposes of the law of tort and not merely the law of contract—a breach of contract is unlawful between the parties of the contract. In the words of the noble and learned Lord, Lord Devlin, at page 1209, in Rookes v. Barnard:I find nothing to differentiate the threat of a breach of contract from a threat of physical violence or any other legal threat".That put breach of contract into the camp of unlawful means.
So far as the threat of breach of contract of employment was concerned, that was protected in the Trades Disputes Act in 1965, but it led on to the fourth discussion in the area; that is, the general development of the tort of doing harm by unlawful means, to which I referred last week in our debates, and to which I referred earlier this evening.
Indeed, the Donovan Report itself, which was accepted as authoritative on this point, took it, in paragraph 854, that the consequence of Rookes v. Barnard was not only that the tort of intimidation needed attention in trade disputes, but also,It has been suggested that liability for civil conspiracy might arise where a number of persons agreed together in contemplating or furtherance of a trade dispute to break their contracts of employment in combination, since they would be parties to an agreement to an unlawful act. If done by one person alone, the act, the breach of contract, would be actionable and accordingly the protection of the 1906 Act would not be available, nor would the combination be protected by the 1965 Act. This possibility is one which we think should be removed by legislation".There were, therefore, two areas of liability based upon unlawful means. One was that, in taking action, workers broke their contracts of employment, or, indeed, interfered with commercial contracts, and that was a form of unlawful means not covered by the legislation. The second was a rather curious one, which I must put on the record. It was this. The areas that were protected in 676 the 1906 Act were rendered, in lawyer's terms, not actionable; that is to say, if someone induced a breach of contract of employment, it was not to be actionable on that ground alone.
That gave rise to a curious division of minds among two lines of judicial thinking. The first line of thought—with respect, to my mind the more logical—said that not being actionable the act of organising the strike was therefore not unlawful, and there are many dicta to that effect. The other line—before the 1970s more numerous in dicta in fact, as Mr. Justice Templeman pointed out in a judgment of 1976 in the case of Camellia Tanker v. International Transport Workers' Federation—was that, although it was not actionable, it remained an unlawful act inherently and therefore could be unlawful means for the purposes of the law of tort.
It was those two matters, the breach of contract as unlawful means in tort, Rookes v. Barnard in 1964, and the possibility and, apparently, the numerically superior view of the judiciary, that even an act that was not made actionable in trade disputes remained inherently unlawful, that caused the Legislature in 1974 to enact subsection (3) of Section 13, because subsection (3) resolved the doubts on the matter in Parliament, by declaring that neither of these should be unlawful means in the law of tort, when they were committed in furtherance of a trade dispute or contemplation of a trade dispute.
The reason for doing that was very simple, because if that had not been enacted, then a trade union official organising a strike could have his acts looked at in two completely different ways. On the one hand, he could be said to be inducing breaches of employment contracts in furtherance of a dispute, and not liable in tort because he was protected. On the other hand, on precisely the same facts, it was not only arguable, but judicially supported, that the same official could be described as interfering by the use of unlawful means; or, if you wish, conspiracy to use unlawful means, as the Donovan Report preferred, although I myself do not prefer the conspiracy argument—but it is equally arguable—and, therefore, he was liable, albeit that he acted in furtherance of a trade dispute.
677 The intention of subsection (3) of the 1974 Act was, therefore, to restore the position as it was thought to be in the 1906 Act. I hope that noble and learned Lords and noble Lords will not say that history is irrelevant to this matter, because the whole point was that the primary right to strike was established in 1906, and the primary right to strike is what the Government say they want to maintain. So that if it was necessary in 1974 to extend the language of the so-called immunities in order to maintain their substance—and in four respects, as the Donovan Report and other works have made clear, it was necessary to extend the language in order to maintain the substance—then, surely, this matter must be cleared up under this clause.
Indeed, if I may cite, finally, one judicial piece of interpretation which surely supports the view to which I am now claiming correct analysis, in the case of NWL v. Woods in 1979, the noble and learned Lord, Lord Scarman, said, speaking of the 1974 Act as amended in 1976—and I quote him from page 886 of the Industrial Court Cases Reports:The legislative purpose of the Act is clear, to sweep away not only the structure of industrial relations created by the Industrial Relations Act 1971 which it was passed to repeal, but also the restraints and judicial review which the courts have been fashioning, one way or another, since the enactment of the Trade Disputes Act 1906".A little later on he said this—and this is the nub of my case:Briefly put, the law now is back to what Parliament had intended when it enacted the Act of 1906, but stronger and clearer than it was then".It is our contention that if Clause 16(8) remains in its present form and, at least, is not modified in the very modest way we ask for in Amendment No. 77N, then the Government will have taken away something which is judicially recognised, recognised by the Donovan Commission, recognised by the learned works on the matter, to be necessary to maintain the primary right to strike. It will lead the Government to be in breach of the European Social Charter, which in Article 6(4) establishes the right to strike, and to which the United Kingdom Government have adhered. We therefore beg to move Amendment No. 77N, knowing that if it is accepted or carried Amendment No. 80J must go with it, because if subsection (3) is included as a limitation of the secondary action clause, then of course its total 678 repeal in Clause 16(8) must fall away as well. This is, therefore, perhaps the most expeditious way of making our case. It is our case that the clause as it stands makes the ordinary, common or garden right to strike unlawful in a large number of situations, and it is on that ground that we ask the Government to honour their own statements that they do not wish to do so. Even if this is an arguable case, some amendment of this kind must surely be accepted. I beg to move.
§ 9.7 p.m.
§ The LORD CHANCELLOR
I rise to a crowded and excited Committee to answer what the noble Lord, Lord Wedderburn, has assured us is a question of principle. Until 10 minutes or so before he rose to move Amendment No. 77N, I was assured that my humble task was to reply to Amendments Nos. 80H, J and K. I tried extremely hard to follow the rapid development of his argument and I do understand that the same point is involved as was involved in Amendments Nos. 80H, J and K. I believe that to be correct.
The insertion of the words "subsection (1) or (3)" into line 18 on page 18 of the Bill is relate d solely to our proposal to repeal altogether subsection (3) of Section 13 of the Trade Union and Labour Relations Act 1974. The noble Lord, Lord Wedderburn, has somehow—I am not at all sure how—persuaded himself that in repealing subsection (3) of Section 13 of the Trade Union and Labour Relations Act 1974 he has uncovered an unholy plot by the Tory Party to prevent primary strikes of some kind, or perhaps of any kind. My first task is to assure the noble and learned Lord, Lord Wedderburn—no, he is not learned in this House although he would have been learned in the other one, I think—
§ The LORD CHANCELLOR
I really do not know what the noble Lord is speaking about. I was corrected from behind me—and correctly corrected, and withdrew. I do beg the noble Lord, Lord Wedderburn, to believe that in the first place we are not so wicked as to try, by devious means, to do the opposite 679 of what we say we are trying to do; secondly, that we are not nearly so clever as to do it by this particular means, which nobody has thought of, so far as I know, but the noble Lord himself; thirdly, that if we were either so clever as to try to do the opposite of what we say we are trying to do and to do it by this particular means we should have done it rather more effectively than could be cured by the particular series of amendments which the noble Lord has chosen to put down.
I say, and say it again in unequivocal terms, that we are not intending to interfere with any form of primary action by the repeal in particular of Section 13(3) of the 1974 Act. We are not intending to do so, and we are advised, and believe, that we have by no means succeeded in doing so by mistake. That is the first and by far the most important and perhaps the only important thing that I have to say in this contribution to the debate.
I am trying very hard to work myself into a state of mind when I can even understand how it is that the noble Lord thinks that we have achieved this extraordinary result. So far as I can see it, the answer is dependent not upon the law of 1906 but upon the law of 1974, as amended by the Act of 1976. The Act of 1974 dealt solely with contracts of employment. I am, of course, talking about the relevant section. The Act of 1976 altered that position, for reasons which one remembers, to add to the contract of employment, in effect, commercial contacts.
So long as the Act of 1974 was valid in its original form—I am speaking about subsection (1) of Section 13—and related solely to contracts of employment, subsection (3) served a kind of useful purpose because it provided that unlawful means were not to be considered. But in our view, the advice which we have received—it is conceivable that we are wrongly advised but I do not see how we can possibly be wrongly advised, nor has the noble Lord, Lord Wedderburn, persuaded me in any way that we are—is that once the Act of 1976 was introduced to amend Section 13(1) of the Act of 1974, subsection (3) of Section 13 of the Act of 1974 was simply a floating kidney. It meant nothing and served no useful purpose.
680 It was, in fact, to use the language employed by the noble Lord, Lord Wedderburn, simply a hidden minefield. Being there and serving no useful purpose, we have been advised that if it is left floating about there, it would be to the courts of law in this country, which do their best to understand what Parliament is about, at best puzzling and at worst defeating to the purposes of Clauses 15, 16 and 17 of the present Bill. If it is left on the statute book the courts might find constructions for it which were never intended when it was first included in the 1974 Act and which deterred them from finding in favour of the plaintiffs in cases of unlawful secondary action.
It is, I think—and I really rather press this on the Committee—an important principle in legislation that redundant and superfluous provisions should be repealed at the earliest opportunity when they continue to serve no useful purpose and, in fact, mean nothing.
§ The LORD CHANCELLOR
I was glad to hear my noble friend Lord Renton applaud my sentiment because, as a matter of fact, what I am trying to say now, although it is not, I think, a matter of principle at all, exactly illustrates a point which he has already made about these three or four sections in an earlier connection this evening.
I agree with him that it is inconvenient not to have a Keeling Schedule unless one also has a consolidation Act. It may be that the noble Lord, Lord Wedderburn, has really been caught in the trap which my noble friend Lord Renton explained at an earlier stage. I absolutely acquit him of any desire whatever to alarm the trade union movement into thinking that there is some kind of "blue" conspiracy to defeat primary action. I am sure he does not intend to do so. He is genuinely caught in the web of his own learning and industry, hut the fact of the matter is that the thing is a great deal simpler, so we believe; and we genuinely believe it, whether we are right or wrong.
The fact is that Section 13(3), which we are repealing by Subsection (8) of the present clause, serves no useful purpose at all and is only a source of confusion 681 and will bring the law into confusion and worse.
As far as I was able to understand it, the reason underlying the thinking of the noble Lord, Lord Wedderburn, is something rather like this. If I have got it wrong, I ask noble Lords to believe that it is not because I want to get it wrong. It is because I have done my best to understand it, and if I have got it wrong I can only apologise humbly. First of all, the crucial question is whether the repeal of Section 13(3) will affect any immunity for primary action of any kind. As I have tried to explain, Section 13(1), as amended in 1976, provides, in our view, the substantive immunity for both the direct and indirect form of the torts which those taking primary action are likely to commit.
The repeal of Section 13(3) for the reasons that I have indicated does not detract from that in any way. In consequence, I feel I am safe in assuring the Committee, because I have been advised by those who are better qualified to judge these questions than I—and, so far as I can believe and ascertain, they are right—that in relation to all known torts covered in Section 13, the removal of subsection (3) will not affect the immunity for primary action. But the trouble with the noble Lord, Lord Wedderburn, is that, like some astronomers, he thinks he has discovered a new tort not previously known to science, and he seeks to discover it by a number of erudite references to various dicta and statements in various cases.
Of course, as my noble and learned friend was saying a moment or two ago, these cases have to be read in their context. Their context is extremely elaborate, and therefore one has to ask the Committee to suffer slightly in talking about them. But the truth is that the real source of this new planet—the new tort, the hitherto undiscovered tort—is a passage in Clerk and Lindsell on torts. Like Mr. Waygood and Miss Otis (who made lifts) Mr. Clerk and Mr. Lindsell have long since been gathered to their fathers and new authors have taken their place. The author of this particular passage is a certain Professor Wedderburn, who is well known and universally respected as a great authority on this subject. He states that there exists a 682 tort of uncertain ambit which consists in one person using unlawful means with the object and effect of causing damage to another.
I am bound to tell the noble Lord, Lord Wedderburn—the discoverer of this heavenly object—that, so far as the legal advisers of the Government are concerned, we do not believe that the new planet exists at all. If by any chance we are wrong about the existence of the new planet, and if it is really there, so small that it cannot be discerned by the human eye but only by the most elaborate telescope of learned professors, the fact is that the various amendments which he proposed would not solve his problem, so far as I can see, at all. It would not go far enough.
We certainly think it necessary to repeal Section 13(3) for the purpose of Clause 16, and in trying to table the, four or five amendments which they have put down I gather that noble Lords opposite have actually recognised that fact. But we think it desirable to abolish Section 13(3) altogether and that is because, for the reasons I have explained, we regard it as now wholly superfluous because the extension of the immunity in 1976, to cover interference with all contracts and not just contracts of employment, made Section 13(3) unnecessary in relation to the torts dealt with in Section 13. It is now clear that Section 13(1) covers both the direct and indirect forms of the torts for which it gives immunity. Once that is established the question of whether inducing a breach of contract of employment or an actual breach of such employment are lawful means does not arise in connection with those torts because Section 13(1) itself provides the substantial immunity.
If he wanted to protect himself against the possibility of some hitherto undiscovered tort, I think he would have to travel a very different road from that which he has done in the present amendment. He would then have to find a new clause on the lines of Section 13(1) not related to unlawful means, as he sought to do by reinstating subsection (3) of Section 13; he would have to provide a substantive immunity in relation to the new tort, which he would then have to define. As we do not think that the new 683 tort exists, we are rather at a loss to find such a substantive new clause, but I think there is no limit to the ingenuity of the noble Lord, Lord Wedderburn, or to his industry. I only seek to assure him that no question of principle that I can discern with the naked eye possibly arises on any of these amendments.
§ 9.23 p.m.
Before the noble Lord, Lord Wedderburn, replies, I just want to say that I have been quite mystified as to how far this particular debate has taken us, but I believe from what the noble Lord the Lord Chancellor has said that we have been debating not only Amendment No. 77N but also the possible effect of taking out subsection (3) of Section 13 of the 1974 Act. The noble and learned Lord the Lord Chancellor described it, I believe, as now being a floating kidney. May I claim that our little group had thought of it in very similar terms and we have been considering whether there may not be a better way of making use of subsection (3) than merely removing it from the statute book. Therefore, all I want to say is that we may come forward on Report stage with an amendment.
§ The LORD CHANCELLOR
I can only say to the noble Lord that when he does we shall give it the same careful attention as we have been trying to give to the noble Lord, Lord Wedderburn. Perhaps they will find themselves in the same Lobby.
§ Lord WEDDERBURN of CHARLTON
I can only hope the noble and learned Lord the Lord Chancellor will give Lord Spens' amendment when it comes even closer attention that he has given ours. I wish to reply, with the greatest respect and in all clue deference, to the arguments which he has advanced to me. I am sure he did not intend them ad hominem. I would not have dared to cite my own chapter in Clerk and Lindsell, and it is the last thing I will do tonight.
§ Lord WEDDERBURN of CHARLTON
I am glad the noble and learned 684 Lord thinks it is a good chapter. It will be improved in the next edition. I do not think the Government are on to a plot. Noble Lords look astonished, but I do not think they are on to a plot. I think the Government are wrong. It is possible to have disagreement, especially among lawyers. The noble and learned Lord said that they are not nearly so clever as to abolish the right to strike in this way. The noble and learned Lord underestimates himself, but I take it that he does not intend to do so. It has been said again and again, and of course we all know that what is said three times is right. I take it it is the Government's intention not to abolish or imperil the legality of the right to strike. But that is what they are doing.
I must repeat the reason, because the noble and learned Lord said that he did not understand my argument. I will reply to the points where he said he did not understand, and keep the time short. First, he put it to me that the Government were advised that they were not doing anything of this sort by mistake. The noble and learned Lord does not need advice on these matters; he knows the authorities; at least, with respect, I thought he did, but I am coming to some which I think prove at any rate that he is arguably wrong.
The need for subsection (3) of Section 13 arises from two matters: first, that many judgments which have not been overruled, and which in some cases have been approved by the House of Lords, state that that which is actionable still remains unlawful means; secondly, that breach of contract including breach of contract of employment is unlawful means. The noble and learned Lord said that the Act of 1974 as amended by the Opposition, which carried its will against the minority Government of the day in this House—I am not making a party point, but that is how it came about—did in fact restrict subsection (1) of Section 13 to inducing breach of contract of employment. I point out to the noble and learned Lord that it is not true when he says that the 1974 Act as enacted was totally restricted to contracts of employment. I have the Queen's Printers copy in my hand, and if he will look at subsection (3)(b)—
§ The LORD CHANCELLOR
I quoted specifically Section 13(1); at least I thought 685 I did. I think if the noble Lord studies Hansard tomorrow he will see that I was very careful to say that.
§ Lord WEDDERBURN of CHARLTON
I retract, of course, if I have misquoted the noble and learned Lord. However, I have to point out that subsection (3) was not restricted to contracts of employment and included the phrase:a breach of contract in contemplation or furtherance of a trade disputeshall not be regarded as an unlawful act or unlawful means for the purpose of establishing liability in tort. It refers to a "contract", not "contract of employment". What is more I, too, have recently re-read all the debates of 1974 and 1976. The Opposition put down no amendment at all to that particular subsection and paragraph. By 1979 they had suddenly discovered that subsection (3) of Section 13—and I refer to the working paper on the new clause in 1980—was a monstrous enlargement of the immunities, but they did not challenge it in 1974, and they did not challenge it in 1976. It remained on the statute book for that very reason—they did not challenge it. Why did they leave it there?
Now the noble and learned Lord says that they appear to have left it there because it was meaningless. That is not what the working paper said. That said that it was a monstrous extension of the whole of the Act of 1976. Now the noble and learned Lord says that it does not mean anything. Perhaps I may interpose that if it is meaningless—and I beseech him in Cromwellian terms to be thinking that he may be wrong—then at least leave it on the statute book, if it is arguable that it protects the right to strike and the right to strike would disappear without it.
However, the noble and learned Lord makes a much more important point, and on that central issue I shall join with him. He says that he and his advisers have been unable to discover this curious tortious planet in the heavens of the common law to which I have made reference. There is no such tort, he says, as doing damage by unlawful means or conspiracy to use unlawful means, if that is the other way to put it, as the Donovan Report did.
686 I do not merely rely on the Donovan Report—it is not a judicial authority. I wondered which references I should bring of the many which support the argument. I can only refer the noble and learned Lord to the statement in Torquay Hotel Limited v. Cousins in 1969, which I quoted previously and which said that if you deliberately interfere with the trade or business of another, and do so by unlawful means, you act unlawfully and are liable to damages or an injunction. That was expressed in the Court of Appeal in 1969 2 Chancery at page 106, and supported by the Court of Appeal in the case of Acrow Automation Ltd. v. Rex Chainbelt Inc. in 1971 1 Weekly Law Reports at page 1676. It was supported last year in the Court of Appeal in the case of Carling Music Corporation v. Collins 1979 Fleet Street Reports, page 542, and stated with abundant clarity in the Court of Appeal in the case of ex parte Island Records 1978 3 Weekly Law Reports 23 at page 30.
I shall, if the noble and learned wishes me to do so, read such passages as I have brought from two of those authorities. However, I ask him to accept from me that there are many other authorities that establish the existence of this tort. He rather criticised me for daring to suggest it, and were I a belligerent character—which I am not—if I were speaking of someone else other than the noble and learned Lord, I would say that a student of law today must be affected by legal myopia if he did not understand the existence of this tort. He does not need a telescope, he does not even need a spyglass. It is abundant from the pages of the law reports.
The extent to which breach of contract amounts to unlawful means is, it is true, arguable in terms of the precise margins, but that is always true of legal doctrines. But that it applies as unlawful means, that that combination to use it as an instrument to do damage to another is a species of tortious liability which is unprotected by any statutory provision other than Section 13(3), is a matter of common knowledge to everybody that I have seen write upon the subject.
It is not only established by the case law to which I have referred. I do not wish to refer to my own writings in any way because they are derivative from other 687 people's. If you look at Windfield on Tort, one of the greatest books superbly edited by Professor Jolowicz, you will find that this is referred to. If I may dare to refer to the late Professor Sir Otto Kahn-Freund, whom I am sure the noble and learned Lord will accept was the greatest labour law scholar of his era, he makes it quite clear in a number of publications that he understood the reason for the enactment of subsection (3). Indeed, it was in discussion with Professor Kahn-Freund that I, in the late 1960s, understood better the report of the Donovan Commission of which he himself was a member.
Therefore, I do not put this forward as some curious idiosyncratic and bizarre concept of mine; I put it forward on legal authority and on the basis of the Donovan Commission itself. I put it forward on the greatest authorities in the area of the law of tort and labour law. I rely upon them and accept them. If in the face of them the Government will not relent—not even to the extent of accepting Amendment No. 80J, which would strike at the repeal of Section 13(3) altogether (that is not what we have asked for now although that is what we really want)—if they will not relent even to the extent of constricting the repeal of Section 13(3), which is essential to primary strikes, to the ambit of what we regard as their grotesque Clause 16, then on the basis of that authority the Government, on the arguments that we have exchanged across the Chamber, are not honouring their own words, but are mistakenly (I make no attack on motive or intention) not living up to their own words of not attacking the legality of the right to strike. I propose to press this matter to a Division and invite Members from all sides of the Committee to vote for this amendment.
§ The LORD CHANCELLOR
Before the noble Lord carries his threat to dire action, I must say one or two things by way of answer to what he has said. Of course, it is possible that either of us may be wrong. I thought that I said as much in my original speech and, of course, I shall refer what the noble Lord has said to those who are better qualified than I to consider it, and then I shall consider 688 their advice. But what I said and what I say now is that no question of principle is involved. He takes one view of the law; the Government's advisers take another. It is possible that either of us may be wrong. I happen to agree with those who advise me, otherwise I would not have put it forward.
Of course, conspiracy also is a tort and that includes the use of unlawful means. That is part of the classical definition of "conspiracy". But when Section 13(1) of the 1974 Act, as it is amended by the 1976 Act, carefully explains that there is a substantive immunity in respect of something which induces another to break a contract, or interferes or induces any other person to interfere with its performance; or: that it consists in his threatening that a contract of employment (whether one to which he is a party or not) will be broken; or its performance interfered with; or that he will induce another person to break a contract or to interfere with its performance, when those are the substantive words of the law, it appears to me—and would have appeared to me apart from the learning and industry of the noble Lord, Lord Wedderburn—that complete immunity is given in respect of the things in which it purports to give immunity and, therefore, the means are not unlawful, without any of the elaborate amendments which the noble Lord, Lord Wedderburn, claims to be matters of principle.
§ Lord WEDDERBURN of CHARLTON
As the mover of the amendment, perhaps I may say a few words in reply. The noble and learned Lord is right in what he says so far as he goes. The section that he quoted does not render the breach of contract itself other than unlawful means. Therefore, we have to register our disagreement with the noble and learned Lord, and in discussion with me my noble and learned friends and my noble friends have said that they regard the argument as such that we must press this matter to a Division.
§ 9.39 p.m.
§ On Question, Whether the said amendment (No. 77N) shall be agreed to?
§ Their Lordships divided: Contents, 37; Not-Contents, 85.689
|Ardwick, L.||Janner, L.||Ponsonby of Shulbrede, L.|
|Birk, B.||Kaldor, L.||Ross of Marnock, L.|
|Boston of Faversham, L.||Llewelyn-Davies of Hastoe, B. [Teller.]||Stamp, L.|
|Collison, L.||Stewart of Alvechurch, B.|
|David, B. [Teller.]||Lockwood, B.||Stewart of Fulham, L.|
|Davies of Leek, L.||Lovell-Davis, L.||Stone, L.|
|Galpern, L.||McCarthy, L.||Strabolgi, L.|
|Gregson, L.||Milner of Leeds, L.||Underhill, L.|
|Hacking, L.||Northfield, L.||Wallace of Coslany, L.|
|Hale, L.||Oram, L.||Wedderburn of Charlton, L.|
|Hatch of Lusby, L.||Peart, L.||Wells-Pestell, L.|
|Houghton of Sowerby, L.||Phillips, B.||Whaddon, L.|
|Howie of Troon, L.||Pitt of Hampstead, L.|
|Ailesbury, M.||Ferrers, E.||Monson, L.|
|Alexander of Tunis, E.||Fortescue, E.||Mottistone, L.|
|Ampthill, L.||Gainford, L.||Mowbray and Stourton, L.|
|Auckland, L.||Gowrie, E.||Nunburnholme, L.|
|Bellwin, L.||Greenway, L.||Orr-Ewing, L.|
|Belstead, L.||Gridley, L.||Rawlinson of Ewell, L.|
|Berkeley, B.||Hailsham of Saint Marylebone, L. (L. Chancell r.)||Reigate, L.|
|Bessborough, E.||Renton, L.|
|Boothby, L.||Hankey, L.||Ridley, V.|
|Brougham and Vaux, L.||Hanworth, V.||Rochdale, V.|
|Buxton of Alsa, L.||Harmar-Nicholls, L.||Rochester, L.|
|Cairns, E.||Harvington, L.||Romney, E.|
|Caithness, E.||Henley, L.||Salisbury, M.|
|Camoys, L.||Hives, L.||Sandford, L.|
|Cathcart, E.||Hood, V.||Sandys, L. [Teller.]|
|Cockfield, L.||Hornsby-Smith, B.||Seear, B.|
|Craigmyle, L.||Hunt of Fawley, L.||Sempill, Ly.|
|Crathorne, L.||Keith of Castleacre, L.||Spens, L.|
|Croft, L.||Kemsley, V.||Strathcona and Mount Royal, L.|
|Cullen of Ashbourne, L.||Killearn, L.||Torphichen, L.|
|De La Warr, E.||Lauderdale, E.||Trefgarne, L.|
|De L'Isle, V.||Lindsey and Abingdon, E.||Trenchard, V.|
|Denham, L. [Teller.]||Long, V.||Tweeddale, M.|
|Drumalbyn, L.||Lucas of Chilworth, L.||Vaizey, L.|
|Dundee, E.||Lyell, L.||Vivian, L.|
|Eccles, V.||Mackay of Clashfern, L.||Ward of Witley, V.|
|Ellenborough, L.||Macleod of Borve, B.||Westbury, L.|
|Elton, L.||Mansfield, E.||Young, B.|
|Faithfull, B.||Massereene and Ferrard, V.|
§ Resolved in the negative, and amendment disagreed to accordingly.691
§ 9.47 p.m.
Lord WEDDERBURN of CHARLTON moved Amendment No. 77P:
Page 18, line 20, at end insert ("an employer is a party to a trade dispute and where").
§ The noble Lord said: This amendment also goes to the issue of primary industrial action, but in view of the hour I shall be brief. I believe this is a new point; from reading the Official Report of the debates I do not think it has been put to the Government before. I hasten to assure the noble and learned Lord the Lord Chancellor that it is a point which has been put to me. I have not, as it were, concocted it myself in that it arose in discussion, as ideas do, so it is not my brain-child. I put it to the Government with a request that they consider the matter and return to it on Report.
§ The definition of a trade dispute in Section 29 of the 1974 Act does, as did the Act of 1906, include within its ambit disputes between employers and workmen—"workers" in the new phraseology—or between workers and workers. In law, although not in reality, in the eyes of some of the actors in industrial disputes, disputes come to be analysed by lawyers often as between workers and workers when, in the eyes of those engaged in them, they are multi-party disputes, perhaps involving more than one employer and more than one union. The case, for example, on which the Government have been wont to rely in other matters; namely, Cory Lighterage v. TGWU in 1973, which the Lord Advocate has put to me a number of times, was such a case. It was a case where a non-unionist insisted on maintaining his non-union status in a 100 per cent. union practice situation in the docks. Under the Dock Labour Scheme the employer could not dismiss him but suspended him, and there was a trade dispute.
§ The Court of Appeal ultimately found, after lengthy argument, that this was a dispute between workman and workman. To the workers involved that seemed bizarre; that is to say, they thought that it was a dispute between workman and workman and the employer, in the sense that the trade unionists were not happy, and indeed Mr. Shute, the non-unionist, 692 was not very happy, with all the things that the employer had done. I am not in any way criticising the legal correctness of that decision; but in the court room the disputes can frequently become worker against worker disputes.
§ This applies not only to demarcation disputes. As the Cory Lighterage case shows, the matter may involve a non-unionist with a unionist. It may involve two unions competing for recognition—a point which I press on the Government, because they are now about to take away the legal machinery whereby such disputes might be resolved via ACAS with a binding recommendation. It is arguable that there will be more recognition disputes. Therefore, if there were two unions competing with an employer in regard either to recognition or other matters, it is good legal advice to the employer to say: "Stand back and say that you are neutral, not in any dishonest way because there is a legal sense in which you are neutral, although of course you are not neutral in terms of wanting one thing or another from the dispute". So it is the case that many disputes, by the time they reach the court room, are arguably at least worker and worker disputes. It appears again and again in the law reports, as I am sure the noble and learned Lord Advocate will agree.
§ The importance of that point to this clause is as follows. The definition of secondary action is all-important in Clause 16. It is all important because if what you are doing is secondary action under the definition—not in layman's language; not, as was once said in this Chamber, in English, but in law—then you are within the clause, and you can escape only through one of the gateways to freedom: subsection (3), (4) or (5).
I am not criticising the clause in its construction. I am merely trying to analyse it. What I say, however, is that it has now become apparent—and one feels very foolish at not having seen this before; I am sure that the Government must have thought about this, and must be reconsidering it—because of the definition of secondary action, that industrial action taken in furtherance of a dispute between workers and workers in legal analysis must be secondary action. I say
this because the definition, if I may read the relevant parts and not unfairly conflate the middle, says:
For the purposes of this section there is secondary action in relation to a trade dispute when, and only when, a person—
(a) induces another to break a contract of employment or interferes
with it or threatens to interfere with it. The subsection later adds:
if the employer under the contract of employment is not a party to the trade dispute".
§ So whenever the interference with the contract of employment is in a situation where the employer is not a party to the trade dispute then, within the new law, it is secondary action. Therefore, it follows again, as the night follows day, that if there is a trade dispute between worker and worker where there is no employer party to the trade dispute, all action which is industrial action must in law be secondary action.
§ Of course, the workers involved would be astonished at that situation, because what they are doing is taking primary action against their own employer. Let us take two groups of workers, each of which is on strike and is in some way in competition, each claiming different things from the employer, as in the Cory Lighterage case. The employer is held by the court to be a neutral, which he may or may not establish. So what we reach is a redefinition of trade disputes in effect through the secondary action definition.
Therefore, I ask the Government, first, whether they will accept the amendment, because the amendment is a way of dealing with the matter. It may not be perfect, but it is a way of dealing with the matter in that from the definition of secondary action there is taken this element by adding the words that it applies where:
an employer is a party to a trade dispute".
§ Obviously, the rock upon which Clause 16 is built is that there is an employer party to the trade dispute. You cannot get through the gateways to freedom of subsections (3) or (4) unless there is an employer party to the trade dispute. Therefore, if you have a trade dispute with no employer a party, primary action in furtherance of that is necessarily unlawful. I cannot believe that that is the 694 Government's intention. I very much hope for an assurance that they will come back to us on this matter on Report, even if they cannot meet this amendment. I beg to move.
The Earl of GOWRIE
The purpose of the amendment is to ensure that there is immunity for industrial action in a worker versus worker or, normally, an inter-union dispute where no employer is involved. Such action has no immunity under the clause as drafted. The noble Lord has pointed out that Clause 16 might possibly remove immunity from those who organise primary as well as secondary action in an inter-union dispute. It is of course very rare for there to be a worker versus worker dispute where the employers of the workers involved are not also parties to the dispute. These were the grounds on which an amendment to remove disputes between worker and worker from the definition of trade dispute was resisted by the previous Secretary of State for Employment, Mr. Albert Booth, in the debates in another place on what became the 1974 Act. Much more usual are disputes such as the current dispute at the Isle of Grain site, where the essence of the dispute is an argument between different trade unions hut where, inevitably, a number of employers are closely involved.
In practice, therefore, Clause 16 will not remove immunity from industrial action in the normal run of inter-union disputes. Wherever there is an employer who is a party to the dispute it will continue to be lawful for a union to induce that employer's employees to take industrial action against him. But if they try to spread the effects of the dispute through secondary action, they will be subject to the provisions of Clause 16, just as they would with any other type of secondary action—and that is essential to our purpose.
If, however, there were to be a strictly worker against worker dispute with no employer involved, there would still be immunity if there were breaches of contracts of employment alone, but not if there was damage to the business of the employers who were innocent bystanders in the dispute. Secondary action in such disputes—that is, action by employees who have nothing to do with the dispute— 695 seems to us to be every bit as unacceptable as other forms of secondary action which the clause makes unlawful. Furthermore, the action of the workers who are party to the dispute is itself difficult to distinguish from secondary action as defined in the clause, because it is taken against employers who have no involvement in the dispute and no means of affecting its outcome—just the kind of thing we are here to try to correct.
If an employer has taken active steps to become involved in a dispute by giving support to one side or another, that is a different matter; it is legitimate, then, for unions to take industrial action against him. But if the employer has stood on the touchline, so to speak, throughout the dispute, powerless to affect its outcome, while his business grinds to a halt, then in our view he should have a remedy against the organisers of the action, just as other innocent employers have in cases of unlawful secondary action. That is why I would ask the Committee to resist the noble Lord's amendment.
§ Lord WEDDERBURN of CHARLTON
My noble friends and myself are very unhappy at the brief which the noble Earl has just given to us. I accept it in every way as far as it goes, but it does not meet the point that in worker against worker disputes primary action is rendered secondary and unlawful by this clause. We shall not divide, but we shall not withdraw the amendment.
§ On Question, amendment negatived.
§ [Amendment No. 77Q not moved.]
The DEPUTY CHAIRMAN of COMMITTEES (Viscount Hood)
Before I call the next amendment, I should warn your Lordships that if it is approved I shall not be able to call No. 77R or No. 77S.
§ 9.58 p.m.
Lord ORR-EWING moved Amendment No. 77QA:
Page 18, line 25, leave out ("which is not action satisfying the requirements of subsections (3), (4) or (5)") and insert ("as defined").
§ The noble Lord said: I would seek to move Amendment No. 77QA, and with it, for convenience and speed of the Com- 696 mittee's proceedings, I would refer to Amendments Nos. 77SA, 77T, 77TA, 77ZA, 80AB and 80CA. They all go together. I do not include 80CA, the last of the amendments, because that will be moved by my noble friend Lord Renton and is a separate subject on its own. I speak as someone who has spent the whole of his life in Parliament and also in industry. Therefore, I do not speak with a great legal knowledge, like the legal luminaries who have been addressing your Lordships' Committee on the previous amendments—with great entertainment, but to some of us it is not absolutely as clear as crystal. I shall look forward to reading the next book by the noble Lords, Lord Wedderburn and Lord McCarthy, which will no doubt be entitled Employment Bill 1980 and, I am sure, will be compulsory reading at some of our universities if one wants a law degree.
§ I speak not only as an industrialist but as honorary secretary of an all-party group of which Lord Spens is chairman, and I shall leave it to Lord Spens and Lord Renton, who are experienced in the law, to put the legal points on these amendments.
We tabled these amendments—and I speak as the honorary secretary of that group—for four reasons. First, to make the Bill clearer and easier to understand: and after the recent exchanges, I am sure that that will be very welcome to the Committee and the country in general and to those who have to interpret it. Secondly, to make the Bill more effective in countering secondary action. I refer particularly to blacking, blockading and variations on those themes. Thirdly, we seek to amend the Bill so as to reduce, in the words of the noble and learned Lord, Lord Scarman, in the McShane case:
the need for the courts to act as some sort of back-seat driver in trade disputes".
Fourthly, we move the amendments to bring the Bill more in line with the Government manifesto which, I would remind the Committee, said:
We shall ensure that the protection of the law is available to those not concerned in the dispute".
§ Your Lordship's House, as we all know, has the task of debating (as we did yesterday), of delaying and sending back (as 697 with the ship repair section of the Bill to nationalise British shipbuilding) and of revising, which we are undertaking today. I think we have a special constitutional responsiblity for examining closely those Bills which, when they reach us, have not been thoroughly debated in the other place either because the guillotine has had to be used by successive Governments or because an important section has been introduced at a very late stage. This last point applies particularly to Clause 16, which was tabled at Report stage as a result of the Daily Express v. McShane ruling. This clause never went through Standing Committee and did not receive the detailed examination I think it deserves. It was never fully understood by many people and has been much criticised in many quarters.
§ Clause 16 sets up a legal framework with a complicated series of subsections by which the unions can prove that they are within the law. Surely it is better to amend and create a simpler pattern. These amendments seek to do that. No law could successfully prevent—and I concede that—a genuine sympathy strike. But these amendments will restore to employers not involved in a trade dispute, employers who are first suppliers or first customers, their common law rights if they decide to proceed. I am sure that noble Lords will recognise that the "if" is a big one. There will not be many employers who can afford the time or the money to take legal action; but at least we restore to them the right to do so if they so wish. Of course, these amendments may not be perfect in their wording, although we have sought to make them so. We well understand that the Government may wish to change them when it comes to Report stage; but the all-party group feel strongly on this issue.
§ I turn for illustration to two areas of life in this country. The first is the motor industry which in the United Kingdom has been disastrously disrupted (with a tremendous fall in output and to the great advantage of our competitors) as a result of bad industrial relations in the last decade. The four car manufacturers, British Leyland, Ford, Vauxhall and Talbot, really assemble cars. One vehicle may contain as many as 60,000 parts. These come from more than 100 major suppliers and several hundred minor 698 suppliers. The major suppliers include firms like Lucas, Smith's, Automotive Products, Rubery Owen and GKN and, in the case of brake systems, Clayton Dewandre, of which I have been chairman for many years. It is now customary for motor manufacturers, world-wide, to get their supplies of components (tyres, wheels, brakes, speedometers and the like) from at least two sources so that, if one is disrupted, the other source will survive and will not stop the production lines. European manufacturers often use one source in Europe and one in the United Kingdom. United Kingdom manufacturers use one source in Britain and one in Europe.
§ The repercussions of a strike—say at British Leyland—can have a tremendous effect on the whole engineering industry of our country and a side effect on the Continent as well. Within days, production may have to be cut back at several hundred major firms, and within a week repercussions are felt next layer down: suppliers of steel, castings and the like. Therefore, we retain our component exports to Europe. This has been a most healthy aspect of the British motor industry. We must legislate to minimise the degree of disruption, otherwise confidence will go and with it will go the jobs and the orders.
Perhaps the public are most sensitive in the service industries—I turn to those now—particularly in hospitals where blacking and blocking may and did affect in the "winter of discontent" the sick, the dying and even the dead. Here again, the Bill does nothing for the hospitals, as the admirable Daily Telegraph leader of 2nd June stated under the heading "Lords to the Rescue". It said this:
If the Bill reaches the statute book, a trade union engaged, for example, in attempting to disrupt the work of hospitals will continue to enjoy the protection of the law, if it seeks to induce suppliers and lorry drivers to block essential medical supplies".
§ I am sure the public would not wish to see that continue henceforward. If they do see it, then they will blame this Government for not having set matters right. Surely, we have an obligation to discourage such immunity as encourages this practice. That is why I commend these amendments. Discussion is going on in academic, legal, industrial and Parliamentary circles on this clause. I hope that this Committee of our House will live up 699 to its responsibilities and then we can truly earn the headline which was prominent last week and we can say: "Lords to the Rescue". I beg to move.
§ 10.8 p.m.
I want to support this amendment. I hope to claim some credit for its construction. When our group were thinking about what we should do about Clause 16, it was rather opportune that a letter appeared in The Times signed by Mr. Alan Campbell Q.C. which, if I may quote from his introduction, said:An examination of the complex provisions of Clause 16 of the Employment Bill reveals an intention to reflect the 'first supplier first customer' concept; to entrench the legality of all industrial action within this ambit; also to legalise the 'repercussive' effect of such action against third parties".That is a letter of 27th May. That letter confirmed the views that I had taken about this clause, that it is much too complicated as it has been drafted and, much more than that, I dislike the way that it appears to entrench positively in statute law immunities for the trade unions. I do not believe that they have been so far entrenched positively before. If one looks at subsection (3) it says:Secondary action satisfies the requirements of this subsection if …and subsection (4) is similar. Subsection (5) is similar. These entrenchments are being made by a Conservative Government, and that to my mind means that—
The Earl of GOWRIE
If I may, I should like to make the point that the kind of immunities the noble Lord referred to have been entrenched in law ever since the Liberal Government of 1906.
Yes, I realise there have been entrenchments, but what worries me is that these entrenchments are about to be made by a Conservative Government, because once a Conservative Government has made these positive entrenchments it is going to be extraordinarily difficult ever to get them altered. No future Labour Government will want to alter them, and it is going to be very difficult to find a future Conservative Government who will want to alter them. Therefore it seemed to me that this entrenchment of immunities was a dangerous thing and so 700 I set about trying to draft a much simpler clause and I gave it to my noble friend Lord Orr-Ewing. At the same time he was having similar thoughts on the subject, and together we produced the amendments that are now before your Lordships.
If I may just indicate the effect, Clause 16 will now read:Nothing in Section 13 of the 1974 Act shall prevent an act from being actionable in tort on a ground specified in subsection (1)(a) or (b) of that section in any case where—Subsection (2) we leave as it is; and we take out, or hope to take out, subsection (3), (4), (5) and (6).
- (a) the contract concerned is not a contract of employment, and
- (b) one of the facts relied upon for the purpose of establishing liability is that there has been secondary action as defined, and
- (c) the person claiming the benefit of this section is not a party to the dispute".
Having tabled these amendments I was delighted to read a letter on Tuesday of this week in the Daily Telegraph from Edward Grayson, saying:These amendments to Clause 16 provide with the most admirable simplicity and clarity that Section 13 of the Trade Union Relations Act 1974 will not apply, and a person will therefore be able to pursue his common law rights when he isSo we have got a positive acclaim from Mr. Grayson that we have done what we had hoped in the form of making Clause 16 simple and also, I think, more effective than the present Clause 16 will be. I therefore support the amendment.
- (a) suing for interference with a contract other than a contract of employment (e.g. a commercial contract);
- (b) relying upon secondary action as defined in subsection (2) of the existing Clause 16, and
- (c) himself not a party to the dispute".
§ Lord HANKEY
I should like to support my noble friends in putting forward these amendments. I see great difficulty in the present text of Clause 16. I have had to spend years of my life arguing with foreigners about the meaning of various texts of treaties and so on. My experience is that people are confused whenever anything is very complicated. In particular, the French always make rings round everybody else, and so do the Russians. It is true that we do not deal with the French and the Russians, but 701 when you mislead a lot of people by the complication of texts it leads to endless disputes and makes it much harder to get clarity in relations between the various bodies concerned. I will not go in for crossing a lot of legal swords with people such as we have seen, but I think really we have to get down to the rock bottom sense of what we are trying to correct.
We have seen in the shipyards a dispute between unions—the shopfitters and the boilermakers, I think—which for months and months prevented contracts from being concluded. At the power station in the East of Kent months have gone by because two unions disagree and nobody is able to settle the matter. We have had a case where the coalminers, being on strike, were able to prevent the Electricity Board from using its own coal stocks on its own premises to feed its own power stations. The people of England insist on this being stopped.
I am not sure that the texts in Clause 16 would have that effect. Some people may say that they will, but they are so obscure that you cannot be sure about it; and I do not think that the trade unions would be sure about it either. So the clause, as amended, would be more satisfactory to everybody. It would serve to correct some of the abuses of which our countrymen rightly complain, and which they really would have expected the Government to correct before now.
§ Lord DAVIES of LEEK
Just for one minute, one ought to draw attention to the general council's thinking in this direction. In simple English, all that this does is to increase the strength of the clause and to make it more punitive. The general council's experience—and I beg the Government not to take a partisan view—from their first-hand knowledge, begged the Government at the Croydon Conference to think carefully about industrial relations. It emphasised at that conference that the punitive measures would embitter, not alleviate, industrial difficulties. If you get massive unemployment, you can pass all the punitive Acts you like but you will have a terrible industrial situation to face. Those of us who saw what happened in the 1926 strike, or in 1921, must realise that. So I beg the Government to look carefully before increasing the punitive measures.
§ 10.18 p.m.
Earl DE LA WARR
I want to start by congratulating my noble friend on the simple and persuasive way in which he put his arguments, which are very strong. However, I have to say that I thoroughly disagree with him. I shall not be arguing the case, because it is more properly argued, and will be much better argued, from the Front Bench. I want to confine myself to saying a few positive things about Clause 16 as it stands.
We should remember that there is in this country a long-held and deeply ingrained tradition of sympathetic industrial action. This fact was specifically put on record in the Donovan Commission's Report 12 years ago. That brings us back, very briefly, to the basic philosophy behind this whole Bill. First, do not charge in like a bull at a gate, when the gate consists of deeply-held, time-honoured trade union traditions. Go step by step and, finally, deal with specific abuses. If that be so, then Clause 16 fulfils these criteria admirably.
Certainly—and I want to draw your Lordships' attention to this—it grasps very firmly the issue of remoteness, which was drawn to our attention so strongly by the House of Lords judgment in the Daily Express v. McShane case. More generally, I want to put it to your Lordships that this clause will make it extremely difficult for any secondary blacking to take place.
Earl DE LA WARR
I am encouraged! I should like to call in aid something that was written by a body which is known for its somewhat hawkish attitudes; namely, the Institute of Directors, who said:It is a matter for regret that the clause does not remove the immunities for all forms of secondary action. In practice, it will have the effect of so reducing the possibility for taking secondary action that it could be argued that the Government might just as well have sought to stop it altogether.After what I have said, I have no hesitation in turning that argument into proof to your Lordships, coming from the quarter that it does, that this clause as it stands is very tough indeed. It is for that reason that I fully support Clause 16 as it stands and very much hope that my noble friend the Minister of State will have 703 nothing to do with the amendments which have just been moved.
§ Baroness SEEAR
We on these Benches cannot support these amendments. Indeed, my noble friend and I are somewhat surprised at hearing the group referred to as an all-party group. Certainly neither my noble friend nor I are in any way associated with it.
Whatever other changes one may aim to make in industrial relations, it is absoutely clear that the effective right to strike must be maintained. Of course, everybody hopes that it will not often be used, but there must be not only a right to strike but an effective right to strike. If we on these Benches had believed with the noble Lord, Lord Wedderburn, that there was any hidden intention to threaten the right to strike in any way, whatever they did in the Commons my noble friend and I most certainly would have voted against the Government. Whatever may have happened on that occasion in legal terms, we believe that it is the intention of the Government to maintain the right to strike.
If these amendments were accepted by the Government, then, in my view rightly, nobody would believe that it was the Government's intention to maintain the right to strike. Therefore we on these Benches very much support the line that the Government are taking on secondary action—as the noble Earl, Lord De La Warr, remarked, on the recognition of the long established record of sympathetic strikes in this country and the need that such secondary action should, in appropriate cases, be used: not extending secondary action way down the line but maintaining it at first instance. We very much hope that the Committee will reject these amendments.
§ Lord RENTON
If I may say so with deep respect, I think there is some misunderstanding about the purpose and effect of these amendments. They raise a very important issue. The fact that they have come up at such a late hour will not, I hope, lead your Lordships to consider that this discussion ought to be curtailed. I shall not address your Lordships for long, but I wonder whether I may first stress three matters.
704 The first is that if the amendments are accepted the trade unions will continue to have immunity from claims in tort from employers involved in trade disputes. They will have immunity in respect not only of primary action but in respect of secondary action.
My second point is that if there should be further immunities for the trade unions in the event of the amendments being accepted, then they can be dealt with in the light of any recommendations made in the Government's Green Paper which at some time is to follow.
The third point I wish to stress is that, though we fully accept the main purpose which is expressed in subsection (2) of Clause 16, we consider that that main purpose is obscured and confused by what appears in subsections (3), (4), (5) and (6), which purport to give various definitions of secondary action. In any event, under subsections (1) and (2) of Clause 16 the plaintiff in an action will have to prove three things, and I would ask my noble friend and the noble Baroness to bear this in mind.
First, he will have to prove that he was not a party to the trade dispute; secondly, he will have to prove that a contract which he had was adversely affected by the secondary action and that it was not a contract of employment; and thirdly, he will have to prove that the secondary action conies within subsection (2) of Clause 16, which I need not read; it has already been described by my noble friend Lord Orr-Ewing. That is the essence of the matter—that the burden of proof is going to be upon the plaintiff to prove those three fundamental things before he can get damages in tort in respect of any secondary action.
The question which your Lordships have to decide in relation to these amendments is where the burden of proof is to lie. We are not told in the Bill, and I hope we will be told by the Government spokesman with regard to these various matters described in the other subsections, subsections (3) to (6) inclusive. Whoever has to prove it, and it could be an unconscionable burden on the plaintiff to prove it, under both subsections (3A) and (4A) the defendant would have to disprove the purpose of the secondary action on the defendant's part as set out in the sub-sections.
705 In our actions in the courts for civil damages the courts are normally not concerned with the motives which prompt people to do things which cause damage. They are concerned with what they do. Damages are normally awarded for damage done and not for the defendant's purpose, motive or intention in doing it. There are some rare exceptions but the court does not like to enlarge upon them. There are in rare circumstances punitive damages, for example, in actions for libel. Surely when we are legislating in this sense we should be absolutely clear that it should not lie upon the plaintiff to have to prove what the defendant's motive was for the damage that he caused. That is my first point on these three subsections.
My second point is this. Either the plaintiff will have to prove, or the defendant will have to disprove, whether the secondary action of the kind set out was likely to achieve its purpose, whatever that was. That is a matter for speculation. That is not the kind of matter which would normally be considered under Clause 16(2) if it were left as it is. That, I say, is a matter for speculation, which confuses the issue. I would have thought that noble Lords opposite, with the interests of trade unions at heart, would not want to be involved in these disputes which will make the cases more lengthy, which will, as I say, obscure the true issues. If the onus is not to be on the plaintiff, however, but to be on the defendant in relation to these matters, then we should be told so; and perhaps the Bill should say so. Sometimes it is left to the courts to decide when the onus should shift from the plaintiff to the defendant, but it is sometimes done by statute, and I think that for reasons of natural justice this is a case in which perhaps the matter should be clarified by statute.
So I say that we should really stick to the essence of Clause 16, which is an admirable clause in essence. I agree with my noble friend Lord De La Warr that we do not want to interfere with traditional rights within the trade unions. We want to stick to the Government's main purpose, and those of us who are Conservatives also want to stick to what was said, as has been pointed out by my noble friend Lord Orr-Ewing, in the Government's election manifesto. If I may say so with deep respect to all your 706 Lordships, let nobody over-simplify this matter or simply say, "This is a lawyer's point; let the lawyers sort it out". We are legislating here; we are revising as we in our judgment may think necessary. I support my noble friend.
§ 10.31 p.m.
§ Lord HARMAR-NICHOLLS
I have strong feelings on this and I have a practical example which I want to give. My noble friends have given very interesting explanations as to what the amendments mean and how they will affect the clause; but if I had had to rely only upon the explanations l have heard, although I know that they are effective and coming from authoritative sources, I honestly would not have known what the matter was all about.
Two years ago in one of my companies I had an experience which may help to elucidate. It concerned a little hotel where a temporary chef had been set on and he proved to be inadequate for the job after four or five months. He accepted this himself—there was nothing wrong with the man—and eventually he was given a fortnight's notice, paid in advance and he left. To our surprise the next morning a regional trade union official telephoned the manager of the hotel and said that he was to reinstate that man, that he had been wrongfully dismissed; and he added, "In anticipation of that we have already arranged for the supplies of beer to your hotel to be stopped", by an arrangement with the drayman's union that served that area. Our manager said: "You must have the wrong end of this stick. There is nothing wrong with this; it is the normal thing. He was not up to the job; he realises it, and there should be no question of reinstating him". The official said: "You will reinstate him or your beer supplies will be stopped". Now for the hotel to have had its beer supplies stopped—and the words used by the official made it sound as though the other hotels in the group would be included, too—could be disastrous. The manager said: "Come and look into it and have an inquiry here. Let us get the thing out of the way. I am certain you cannot understand what it is all about".
The union did come to the hotel, they did have the inquiry and the other employees said: "No, the chef was not any 707 good; he was wasteful and no good for the job". The result was that the union did not have a case. So our manager said: "Well, there you are; you are going to withdraw your claim for reinstatement, we hope". The next day the union rang up and said: "You will pay £700 for wrongful dismissal". At that stage the matter was brought to my attention and I said: "Tell them that you are going to reinstate him". So he was reinstated for three days. After three days the chap walked out and that was the end of the matter.
The point is that, as I understand the law as it stands now, and as I understand the effect that these amendments are going to have on it, the position is this: When the union said that they would stop the delivery of beer, that was a secondary action, but we could have done nothing about it because it was directly concerned with the dispute between the chef and the company. So we have lost our common law rights under the Bill as it stands; they would have immunity and there would be nothing we could do against the beer supplies being stopped.
But it goes even further than that, and this is what I want my noble friend to bear in mind, and I hope that he will convey to his friends in the Government that they really ought to look at this again. If it had concerned the laundry supplies or the oil supplies to that hotel, which were nothing to do with the hotel company and the laundry who work on very narrow margins nowadays, they might well have found the difference between remaining in existence and employing their men and going out of business quite marginal. If it had been that the drivers of the laundry van had had the same advice given to them that was given to the draymen and had adhered to it—the laundry was nothing to do with the dispute between the hotel and the chef—the laundry would, under this clause as it now stands, have lost their rights in common law. The immunity would have extended to the laundryman possibly having to go out of business, giving up employment, and all the trouble that would have caused. I cannot believe that my noble friend and the right honourable gentleman the Minister of Employment, and indeed the Cabinet, would want to reinforce a law that would harm a 708 man so remote from the cause of action as that laundryman happened to be.
The reason why I am supporting these amendments, and ask my noble friends to look again at the real effects of this clause, is that I cannot believe they would wish that immunity to be given in that kind of situation. We are always talking about the motor car industry and the big oil industry, but this will affect little companies like the one I have described; and they are the ones most likely to go under as a consequence of the barrier that robs a man of his rights under common law. I am not arguing the point now about the right to strike, and industrial disputes and all that flows from that. I believe that any British citizen who is as remote from the dispute as that laundryman would be does not deserve to have his rights under common law taken away. I believe he ought to be allowed to take it to court. He would have to prove his case; not just that he disliked the procedure. He would have to show that he had been damaged, to show that the immunity, if given, could possibly affect his continuing his business. I cannot believe that my noble friend wants that to continue.
I was rather interested to hear my noble friend Lord De La Warr; he is not accustomed as I thought he would have been, to the shape of a Chamber in British Parliaments. When you get cheers from the people you can see, you are not likely to be right in adhering to the principles established by the people behind who you cannot see. Perhaps the greatest indictment of the support my noble friend gave to this clause was the fact that he got cheers. What I believe we have a duty to do in political terms is this. After 1974 the Socialist Government—I understand it; I am not criticising them for it, they are the trade union party at almost any cost; they are acting according to the image we know—erected barriers to common law rights of many people, and I do not like common law rights to have to overcome barriers of that sort. What we want to do is to remove, not all the barriers, but I believe that as a party we have a duty to remove those most blatant and most unfair.
§ The LORD CHANCELLOR
I am sure my noble friend does not want to make a false point. These particular rights have been entrenched since 1906. It was not, iniquitous as they were, the 709 Labour Government which did it; it was the Liberal Government in 1906.
§ Lord HARMAR-NICHOLLS
It is not for me to cross memories with my noble and learned friend the Lord Chancellor, but I think that the immunities that I am describing now were in fact strengthened by the Socialist Government when they removed part of the Industrial Relations Act. I am sorry my noble and learned friend diverted me, because I would let you win all the arguments so long as you retain for that laundryman his rights under common law to be able to go to court to preserve the interests of his business and the people that he employs. I understand that all these amendments will do that.
What is it that we want? I do not suppose for one minute that my noble friends will vote for these amendments tonight. They are using the Committee stage in order to try to impress upon my noble friend and upon the Government that they really have overlooked a point here which is important and vital so far as the freedom of the individual is concerned and his rights under common law. We happen to believe that, and if my noble friend can say that that is not so, I shall accept it.
As regards this particular clause, only a matter of four or five days' notice was given to the other place before they examined it. Only one amendment was put down which even touched upon the issues that have been raised by my noble friends and myself. I believe that the issues involved, and the depth to which they go in affecting ordinary people, are such that the Government ought to make certain that both they and the other place have a chance to have another look at this in order to be certain whether the kind of matters to which I am referring and to which my noble friends have referred, have any basis or not. I hope that we shall not be put in the position of having to put down amendments in your Lordships' House at Report stage which would try to bring that about by a vote. It would be counter-productive if we had to do so, because this is intricate and difficult to explain, and it would be presented again as though it were a question of Lords versus the People and the real point of protecting the freedoms would have gone. It must come from the Government.
710 I believe that the Prime Minister and the right honourable gentleman the Minister for Employment, and the whole of the Government, owe it to the Party to look at this in the light of the knowledge that has come to their attention during this debate. I say that the reason why they have a duty to the Party is contained in the manifesto, and I shall repeat the words that have been quoted by my noble friend. I shall repeat them because we are committed to them. The manifesto says:We shall ensure that the protection of the law"—that is all that I ask for—is available to those not concerned in the dispute, but who at present can suffer severely from secondary action".That is what we promised. That is what we ought to try to achieve.
If, having had another look at it, if having taken into account all the evidence that has come to their notice since the Easter week when they rushed it through, and if in the light of the arguments put forward by my noble friends the Government still think that Clause 16, as it now stands—which delights my noble friend Lord De La Warr so much—is perfect, then we shall have to accept it. But I truly believe from my personal experience, quite apart from the arguments of lawyers and all the details and intricacies, that if this clause goes through as it is at present, it may well delight the Benches opposite and give the trade unions a feeling that they have won a particular battle. We are not interfering with their right to strike but we do want to interfere with anybody's right to take away the common law rights of the citizens of this country. I know that my noble friend is eager to speak. I know that it is awful to be on your feet at this hour of night and know that you are losing the sympathy of your listeners, but this matter goes deeper than that. If by keeping my noble friend in his seat for two more seconds I can urge upon him to see to it that his noble friend beside him, and other members of the Cabinet, look at this matter again, then that is all that I ask. A second look will make them come to another decision and it will be my noble friend who will put the amendments down for the Report stage and not those on the Back-Benches.
§ Lord ROBBINS
I rise in a state of very great perplexity. I trust that your 711 Lordships will not blow cold on candour. In respect of this Bill, which we have been considering for some days, I approach matters in a mood of moderation and gradualism. When I have been present at Divisions, which is most of the time, I have consistently supported the Government line. I abstained from dividing on our last decision because, quite frankly, in the interchange between the noble and learned Lord the Lord Chancellor and the noble Lord, Lord Wedderburn of Charlton, I was extremely perplexed and puzzled and unable to make up my mind. Sitting on the Cross-Benches I have always made it a principle never to vote on an issue which I do not thoroughly understand.
In spite of this general approach to the Bill, from the outset—and I mentioned this in my speech on Second Reading—I have felt extremely perplexed at the clause relating to secondary picketing. My reservations have been increased by what has been said in the course of debate this evening. I am all against undue encroachment on traditional attitudes. But it has been said—and it has been said by powerful figures on the Opposition Benches—that if the Government were to go to the country not having dealt with secondary picketing, the country would be disappointed. I await with interest the elucidations of the Government spokesman to the effect that if Clause 16 is passed in its present form, the nearly universal desire to deal with the evils which manifested themselves in the winter of discontent will not be repeated.
§ 10.47 p.m.
The Earl of GOWRIE
I hope that the Committee will extend to me the indulgence that they extended to the noble Lord, Lord Wedderburn, when he was introducing his principal areas of interest earlier this evening. I tore up a 20-minute speech on secondary picketing because I thought that the noble Lord, Lord Houghton of Sowerby, had done more good work in five minutes than I would be able to do in 20 minutes or even an hour or so.
However, as my noble friend Lord Harmar-Nicholls put it, these matters are intricate and difficult to explain, and I shall have to be a very little longer than 712 I was on the issue of picketing. On the subject of picketing—and I say this to the noble Lord, Lord Robens, who is just the sort of man I am very anxious to take with me—
The Earl of GOWRIE
I beg your Lordships' pardon; I know that well; it was a slip of the tongue. The noble Lord, Lord Robbins, and indeed the noble Lord, Lord Robens, were he here, are both men whom I should very much like to take with me. I would say to the noble Lord, Lord Robbins, that we are not primarily concerned here with secondary picketing. We are concerned with blacking and what are called "sympathetic" strikes. Secondary picketing is dealt with in Clause 15, which effectively makes it unlawful and does so virtually without qualification or exception. I absolutely agree with the noble Lord, Lord Robbins, that the country would think very ill of us if that were not the case.
In the issues of blacking and sympathetic strikes, it may help if I give a simple but realistic example of the kind of industrial action which Clause 16 is intended to tackle. For the purposes of illustration—and illustration only—I am going to mention real firms, and I hasten to say to them, if any of them are awake at this time of night, that of course it is no reflection on them and nothing like that could ever happen in their purlieus.
Supposing you have a motor assembly plant, let us say British Leyland, where there is a dispute between management and workers. Supposing that the workers of another company which manufactures lamps for cars—let us call it Lucas—are persuaded to refuse to make or supply lamps to British Leyland in sympathetic support of the workers in that initial or primary dispute. Suppose then that the employees of the company which manufactures the filaments for the lamps—and let us call them fictionally Filaments Limited—are persuaded not to make, or supply, the filaments to the lamp manufacturer.
At the moment, the law which we are seeking in this Bill to amend gives immunity for strikes or blacking not only to the lamp manufacturer but also at 713 Filaments Limited. In other words, it is possible for a trade union to exploit the interdependence of manufacturing companies to a virtually unlimited extent by taking industrial action at two, three, or even more removes from the original dispute. The phrase that the noble Baroness used was, "way down the line". That is what we are seeking to correct.
Under the law as it now stands, the test of whether an action is in furtherance to a trade dispute is also fundamentally a subjective one. If the person who calls the industrial action establishes that he honestly believes that it will in some way further a trade dispute that is about to come into existence, or an existing trade dispute, that is quite enough to give him this contentious legal immunity. So long as the person calling the strike is found by the court to be sincere in his belief, it does not matter how remote the industrial action is from the original dispute, or whether it involves people, both employees and the employers, who have no means whatsoever of influencing the outcome of this dispute.
This virtually unlimited immunity for organising industrial action, whether by strikes or by blacking, was made clear by your Lordships' Judicial Committee in the famous case of Express Newspapers v. McShane. That judgment confirmed what we and others, including the Liberals who opposed the legislation of 1974 and 1976, had always said was the case; that the immunity for calling industrial action had become unnecessarily and dangerously wide.
It is unnecessarily wide for trade union officials seeking to do their proper job of representing their members and defending their interests, and it is dangerously wide for the rest of the community: for us, but chiefly for the rest of the working population whose jobs and livelihoods may be put at risk by being dragged into disputes which do not concern them, do not concern us in any way, and over whose outcome they, or we, have no con rol. That is why we said that the present law was a licence to spread industrial disruption, and that is not a situation which we could allow to continue, or that the electorate would forgive us did we allow it to continue.
This clause represents, therefore, our response to that situation. It is a response 714 we have reached only after a great deal of thought and a great deal of consultation also. I hope that my noble friend Lord Orr-Ewing, who put his amendment in a very clear way—and it is a brilliantly simple and clear amendment—will not think it any derogation of him if I say that one of the options we considered was in fact the option embodied in the amendments put down by him and his noble friends. The effect of these amendments would be to cut the immunity back to the primary action alone. In other words, to go back to the example I gave at the beginning, the immunity would be restricted to the organisation of a strike or other action at Leyland; there would be no immunity for supportive action elsewhere.
I acknowledge to noble Lords who tabled the amendment that that would be a beautifully clear and simple solution, easy to understand, straightforward in statutory expression and one would not need to be a pupil of the noble Lord, Lord Wedderburn of Charlton, to take it in. Why did we not, therefore, go down that road; why did we not choose that action?
§ Lord RENTON
Before my noble friend moves on, may I ask him to explain why he says the amendment would limit it to primary action? The words in subsection (1)(b) are perfectly clear:one of the facts relied upon for the purpose of establishing liability is that there has been secondary action";and according to our amendment we would add the words, "as defined below", and then in subsection (2) the secondary action is defined.
The Earl of GOWRIE
In the later amendment in the name of my noble friend Lord Orr-Ewing—and he said at the beginning that he was taking them together, so I am taking the debate as a whole—there is an attempt to modify this cutback to primary action. But nevertheless, I know from our own consultations, from the usual channels and behind the scenes as well as overt discussion, that the principal object of this series of amendments is to limit the immunity to primary action. We considered doing that and we rejected it, and if your Lordships will be tolerant, I will try to explain why we rejected it.
715 The answer can be found in the Donovan Report and in the judgments of the Court of Appeal which are widely associated with the name of the noble and learned Lord, Lord Denning, and those are based, in our view, on judgments about industrial reality and about what the ordinary person, including most trade union members, instinctively feel to be fair and reasonable. The Donovan Commission's report pointed out that in this country there is a long-standing tradition of industrial action which seeks to put additional pressure on the employer in dispute by sealing off his sources of supply or his outlet for sales, or both. That is the tradition which my noble friend Lord De La Warr mentioned and that is the tradition which is entrenched, maybe regrettably, not by this Government but going back to the Liberal Government of 1906.
We feel that if our reforms are to be effective, they have to take account of industrial reality, and I made that point in the debate on the closed shop. I do not accept that that is a confession of weakness or failure; it is simply common sense. We have a large parliamentary majority, and four years before we need seek re-election. It would be perfectly easy for us to accept these amendments and go down the road that my noble friends are suggesting. But we have a responsibility for ensuring that the legislation we put before Parliament is fair and workable. We must have regard to the practical effects. I believe that only the opponents of the Bill would thank us if any points of it become a dead letter because employers—not the unions, but employers—become unwilling to use the remedies we make available to them because they are frustrated or circumvented on the shopfloor.
It may help particularly those such as my noble friend Lord Harmar-Nicholls, who are very anxious about whether we have gone far enough, if I give some examples of secondary action which under this clause, if your Lordships pass it and if the other place passes it and the Bill becomes an Act, will become unlawful. Let me go back to the car example I quoted at the beginning of my remarks. There would be no immunity for a strike or blacking at the filament 716 manufacturers. There would be no immunity for a strike or blacking of goods at the lamp manufacturers—at Lucas, if you like—if the lamps were not being supplied during the dispute because, for example, the car assembly plant had been closed down by the original dispute. There would be no immunity if the employees of Lucas blacked lamps going to other companies where there was no dispute. There would be no immunity if the employees of Lucas blacked goods going to, or coming from, another company which did business with the car assembly company so as indirectly to put pressure on the latter.
It is clear from these four examples that this clause represents a severe restriction of the present immunity for secondary action. Indeed, the complexity of the drafting of Clause 16 may have masked the extent to which the clause has in fact cut back the immunity for secondary action, and this point was not lost on our opponents on the other side of the Committee, because they verbally showed their disquiet on this matter a little earlier.
May I say to the noble Lord, Lord Hankey, who raised the shipyards' dispute, that that inter-union dispute was primary action. The Isle of Grain power station dispute, too, was a primary dispute, though secondary picketing, which we have dealt with, was involved. Many of the issues in industrial actions about which people are anxious are in fact primary disputes, and, as the debate between my noble and learned friend and the noble Lord, Lord Wedderburn, showed, very few people are suggesting that the Government are interested in cutting back primary action.
I am skipping over some of my notes, but the question of where the limit of immunity is drawn must in our view, and in the last analysis, be a matter of political judgment. That is why we have reached a view on the course that we should take in this Bill only after consulting very widely. In the course of those consultations some urged us to go further and others urged us to do a lot less. Some wanted us to move more quickly than we have, and others wanted us to move more slowly.
But we believe that the line that we are taking in this clause will be accepted by the vast majority of employers and 717 trade unionists alike as fair and reasonable. It will give protection in a wide range of circumstances where damaging secondary action can be, and now often is, taken with absolute immunity; but at the same time we have not cut back the immunity so far as to give militants in the trade union movement a rallying cry with which to stir up a campaign to frustrate and undermine the Bill as a whole. The fiasco of the day of action on 14th May demonstrated that the Bill has denied them that rallying cry so far.
Getting rid of two or three more pages of my notes, may I turn to the issue of hospitals, which my noble friend dwelt upon. Let us be clear what we are talking about here. There is a primary dispute at a hospital between the hospital management and its staff. A trade union, it is suggested, might then organise action by workers who are quite unconnected with the hospital—let us say, employees of British Oxygen or the local electricity board—in order to withhold deliberately supplies for the hospital, even if the lives of patients might be at risk.
I doubt whether there were many examples of that kind of action in the past, but of course there are primary disputes at hospitals, and there are indeed primary disputes—and very damaging ones—at firms elsewhere. I have in mind, for instance, firms that supply hospitals with vital materials. No one is pretending that patients do not suffer as a result, and we all condemn such disputes when they occur; but my point here is that these are primary disputes and they would be unaffected by the noble Lord's amendments. Does he believe that if the Government had any grounds for believing that secondary action, whether blacking or a strike, might be taken against hospitals, we would not have done something about it in this Bill? Of course we would.
We have framed Clause 16 to deal with real situations and actual cases of damaging secondary action, of which the last two winters have afforded many examples. If we were to legislate to provide for patients in hospitals to be beyond the reach of industrial action, we would have to make strikes unlawful in the context of hospitals. That might be a sensible thing to do; but there is no other way that it could be done. It certainly could not be done under Clause 16 here.
718 Finally, it is worth dwelling just for a moment on the difference between blacking and a sympathetic strike. The terrifying thing about blacking is that one can carry it out without incurring any real penalty in the form of lost wages. It often pays an employer to put up with, or, one might say, connive at, selective blacking of goods entering or leaving his factory rather than precipitate an all-out strike by taking disciplinary action. That is why blacking is so easy to organise and why it has become so terrifyingly insidious in its effect. It is a painless way, if you like, for workers who are not in dispute to show support with other workers who are. That is why Clause 16 comes down like a ton on blacking and insists that it be precisely targetted on the employer in dispute and carried out only during the dispute.
The sympathetic strike, on the other hand, is much harder to organise, as we saw during the recent steel dispute. You are asking workers who are not in dispute with their own employer, and who stand to gain nothing whatsoever from the dispute, to give up their good wages and risk disciplinary action in support of a dispute elsewhere. Of course, the clause restricts sympathetic strikes, as I have already explained, but it is unnecessary to outlaw them completely. The effects of outlawing them completely would be that trade unions would take care to turn them into primary disputes by picking a quarrel with the employer. They need only demand that it be part of the conditions of employment that goods are not sent to the employer in dispute, and that would be enough, by itself, to create a primary dispute. That is the kind of example—and I do not think it is too complex—of the danger of pressing these restrictions too far and too quickly; and we have said that we will return to the philosophy of immunity in the Green Paper. Where there is sufficient anger and determination behind a sympathetic strike, the trade unions concerned would somehow find a way of evading the law and of creating a primary dispute. That is the kind of tightrope that we have to walk here.
I have tried to illustrate why we thought it was right not to go further in this Bill, but to expose the sensitive and contentious issues in a Green Paper; and I hope I have 719 also demonstrated that we have gone a very long way. To go further at present would, we believe, jeopardise the real gains that we have a chance to make and the real and extensive protections which this clause will afford to employers, including first suppliers and customers who are faced with this damaging vice of secondary action. That is why I so very much hope that my noble friends will agree to withdraw the amendment standing in their name.
§ Lord RENTON
Before my noble friend sits down, I wonder whether he would be so good as to answer the point I made as to where the burden of proof will lie with regard to the matters in subsections (3) to (6) inclusive.
The EARL of GOWRIE
I apologise to my noble friend; I should have done that earlier. The burden of proof in subsection (3) of Clause 16 is on the trade union officials organising the action; that is to say, they have to show that they have satisfied the test of purpose and likely effect.
Lord HAR MAR-NICHOLLS
Is my noble friend aware that he substituted the filament and the manufacture of lamps, and Leylands, in place of my laundry worker and the beer suppliers? He has said that, as the clause now stands, the laundry driver would not lose his rights under common law; that in fact the immunity did not stretch so far. The advice that I have had from other sources (which is sound in terms of legal knowledge) is that that is not how the clause itself would work. All that I ask my noble friend now is this. He has given a very persuasive explanation of the clause, but will he take this back to his colleagues in the Government and use any influence he has for them to have a look at it, and not say that his persuasive speech of a minute ago shall he the last word upon it? There is a different interpretation as to how this would in fact operate, and until that is cleared away I believe that, on an issue which was so clearly set out in our manifesto, we ought to feel that even a Government with a majority as big as this one's are prepared to have another look at it in the light of extra evidence and extra knowledge.
The EARL of GOWRIE
One of the passages of my speech that I hastened over in the interests of getting through in fact argued how we were exactly in line with our manifesto commitment. We certainly had no manifesto commitment to outlaw the kind of action which I dealt with, though we did think of limiting the immunity in the way I said earlier.
In the case of the examples given by my noble friend, which I agree with him are not very far from mine, we do not see how you can limit the immunity without hitting at all forms of sympathetic action. In the cases of the small employers and organisations that he mentioned, the party in the dispute—the hotelier in his example—would have the benefit of having alternative sources of supply. But he is right that secondary action would have been lawful under Clause 16 as we have it.
No one who stands at this Box, particularly when sandwiched between lawyers, would be so arrogant as to say that he wanted to have the last word in any situation. But I cannot give my noble friends much hope that we think there would be anything other than an attack on all secondary action by going down the road he suggests. We have spent months on this and have been criticised for not bringing in legislation rapidly after May 4th, 1979. One of the reasons why we did not is that we have had to go into this with a toothcomb. We are convinced that we have got it right; but we have left the door open for those who believe that we have not. We may return to debate on this subject, on the whole issue on the Green Paper on immunities and whether it would not be wiser to substitute legal rights and obligations for this difficult doctrine of immunity which we do not like but which is part of the industrial relations history of this country and which we cannot avoid.
§ Lord ORR-EWING
I am grateful to my noble friend for the great trouble he has taken in replying to the points that we have made. I do not think that we, as a group, are completely convinced. We believe that we have preserved subsections (1) and (2) of Clause 6 exactly as the Government framed them and have only sought to delete (3) and (4). Therefore, we believe that secondary action would be possible under Clause 6(2) as drafted. We have moved the amendments 721 just to seek to strengthen the hand of those who are not connected with the dispute and to restore to them their common law rights to act if they wish. That is what the amendments are about.
I moved them as spokesman for a group which contains many Tories, many Cross-Benchers—some of whom have spoken and some of whom have listened; and, after all, we had a Cross-Bencher, the noble Lord, Lord Spens, leading us. We had the moral support of several powerful Social Democrats. I am sorry if I excluded the Liberals. I felt that on this great issue of the closed shop, to which we will come back on Report, in view of the powerful action in the other place taken by Mr. David Steele, the Leader of the Liberal Party, and by Mr. Jo Grimond, the past Liberal Leader and the weight of Mr. Cyril Smith, at least some small, still Liberal voice might be heard at Report stage to make it an all-party group rather than lack the Liberals. We as a group (and I am proud to call it a dissident group, a group of people who do not agree with the majority in the Committee at the moment) feel strongly that the two clauses which need strengthening are that dealing with the closed shop, Clause 6, and the secondary action one, Clause 16.
We will not seek to divide the Committee on Clause 16. There are some two or three weeks before the Report stage on this Bill and we would still hope that the Government would find the time and opportunity to think about this again and to put something down. If not, I feel that we ought to vote on these two issues at Report (but, of course, we will consult with all the members of the group) in order to give another place a chance to think again. We are a delaying House. The Commons did not have a chance to think about the closed shop after the report of the European Commission on Human Rights. We might give them that opportunity in the light of that Report and the condemnation made. They did not consider in detail Clause 16 because it was introduced only at the Report stage and there was no Committee stage available. I hope that the Government will think again. If not, we will seek the opportunity to give the other place a chance of thinking again after our Report stage.
§ Amendment, by leave, withdrawn.722
§ [Amendments Nos. 77R to 77W not moved.]
§ 11.18 p.m.
§ Lord WEDDERBURN of CHARLTON moved Amendment No. 77X:
Page 18, line 46, after ("relates") insert—
("whether or not that prevention or disruption is likely to or does continue after the dispute").
§ The noble Lord said: The Committee should not think that we have not moved some of these amendments because we do not believe in them. But the hour is late and we take this amendment as indicative of the problems which are apparent in a number of our amendments. These gateways in Clause 16 to the so-called secondary lawful action are to a very large extent gateways closed by barriers that the very gateways themselves include. One of the best examples is this particular phrase.
The gateways require that the prevention or disruption of supplies should take place during the dispute. When that gets into court, I suspect that the Daily Telegraph account on 5th June last will indeed be the kind of argument that one is met with. The Daily Telegraph wrote as follows, quoting discussions with the CBI:
As the clause is drafted, secondary industrial action will he protected only where the principal purpose is directly to prevent or disrupt the supply during the dispute of goods and services between an employer or party to the dispute and an employer under the contract of employment to which the secondary industrial action relates. A key phrase is considered to be the requirement that the purpose of the action is to prevent or disrupt the supply only during the dispute. One widely accepted view is that this could remove the protection from all forms of attempted secondary industrial action where the firm at the centre of the dispute has been completely shut down. The main argument of the Institute of Directors
in seeking to remove protection was to strengthen even that.
§ This is illustrative of the way in which, when one searches subsections (3) and (4), one finds that the trade union, in order to be able to engage in any form of sympathetic action whatsoever, has to pick its way through a maze of problems which would defeat the most astonishingly acute lawyer who is advising it before it begins an action. How on earth can the trade union know whether or not the prevention or disruption is likely to continue only during the dispute? The words "only during the dispute" are not in the clause, 723 but the common interpretation appears to be—as indeed did those of the CBI and the Daily Telegraph—that that is what it means. We therefore take the opportunity of moving Amendment No. 77X—and I am speaking also to Amendment No. 77B which is a parallel—whether or not the prevention or disruption is likely to continue after the dispute, as illustrative of our view that the gateways at the moment are phoney and that the secondary action which is allowed is so beset with hedges and ditches that no trade union is ever likely to get through it. I beg to move.
§ Lord MACKAY of CLASHFERN
The position of action described in the amendment is quite clear under the clause as drafted. Whether it is lawful or not depends on what is its principal purpose and whether it is likely to achieve that purpose. If the principal purpose of the secondary action is to prevent or disrupt the supply of goods or services during the dispute and it is likely to achieve that purpose, then it will be protected, even if there are consequential effects after the dispute is over. It will, of course, often be the case that there are some temporary spillover effects after the dispute is over while the position is getting back to normal. That is true of primary action and, of course, we accept that such effects may be the consequence of lawful secondary action. So long as they are consequential effects of secondary action which met the requirements of subsections (3) or
§ (4), then the immunity will continue to apply. We do not see that any amendment to subsections (3) or (4) is needed to achieve this.
§ If, however, the secondary action is taken deliberately for the purpose of disrupting business after the dispute is over, then it cannot by definition have as its principal purpose the disrupting of supplies during the dispute. In consequence, it loses any immunity it might have had under Clause 16. In our view, this situation is perfectly reasonable and justifiable and I would ask the Committee not to agree with this amendment.
§ Lord WEDDERBURN of CHARLTON
The amendment we are pressing is No. 77X. In a sense the noble and learned Lord has given me my case, because the realities of industrial life are that a trade union which is engaging upon action envisaged in Clause 16(3) will necessarily have as its envisaged purpose to disrupt supplies during the dispute, which will naturally spill over after the dispute. It is illustrative of dozens of problems of this sort. We divide on this amendment as illustrative of our view that the gateways to secondary industrial action which is lawful are not real in any respect under the clause.
§ 11.20 p.m.
§ On Question, Whether the said amendment (No. 77X) shall be agreed to?
§ Their Lordships divided: Contents, 18; Not-Contents, 65.725
|Birk, B.||Janner, L.||Ponsonby of Shulbrede, L. [Teller.]|
|Boston of Faversham, L. [Teller.]||Kaldor, L.|
|Llewelyn-Davies of Hastoe, B.||Stewart of Alvechurch, B.|
|David, B.||McCarthy, L.||Stewart of Fulham, L.|
|Davies of Leek, L.||Northfield, L.||Stone, L.|
|Elwyn-Jones, L.||Peart, L.||Underhill, L.|
|Pitt of Hampstead, L.||Wedderburn of Charlton, L.|
|Airey of Abingdon, B.||Caithness, E.||Denham, L.|
|Ampthill, L.||Camoys, L.||Drumalbyn, L.|
|Bellwin, L.||Cathcart, E.||Dundee, E.|
|Belstead, L.||Craigmyle, L.||Elton, L.|
|Berkeley, B.||Crathorne, L.||Faithfull, B.|
|Buxton of Alsa, L.||Cullen of Ashbourne, L.||Ferrers, E.|
|Cairns, E.||De La Warr, E.||Fortescue, E.|
|Gainford, L.||Lindsey and Abingdon, E.||Rochester, L.|
|Glendevon, L.||Long, V.||Salisbury, M.|
|Gowrie, E.||Lucas of Chilworth, L.||Sandford, L.|
|Gridley, L.||Lyell, L. [Teller.]||Sandys, L. [Teller.]|
|Hailsham of Saint Marylebone, L. (L. Chancellor.)||Mackay of Clashfern, L.||Seear, B.|
|Mansfield, E.||Sempill, Ly.|
|Hankey, L.||Margadale, L.||Spens, L.|
|Harmar-Nicholls, L.||Monson, L.||Strathcona and Mount Royal, L.|
|Henley, L.||Morris, L.||Swinfen, L.|
|Hives, L.||Mottistone, L.||Trefgarne, L.|
|Home of the Hirsel, L.||Mowbray and Stourton, L.||Trenchard, V.|
|Hood, V.||Orr-Ewing, L.||Vaizey, L.|
|Hornsby-Smith, B.||Reigate, L.||Vivian, L.|
|Keith of Castleacre, L.||Renton, L.||Westbury, L.|
|Kinnoull, E.||Ridley, V.||Wigoder, L.|
Moved accordingly and, on Question, Motion agreed to.
§ [Amendments Nos. 77Y to 77CC not moved.]
§ 11.30 p.m.
The Earl of GOWRIE moved Amendment No. 78:
Page 19, line 8, leave out from ("services") to first ("an") in line 9 and insert ("between any person and").
§ The noble Earl said: This is a drafting amendment. I beg to move.
§ [Amendments Nos. 78A and 78B not moved.]
The Earl of GOWRIE moved Amendment No. 79:
Page 19, line 13, leave out ("the recipient") and insert ("or").
§ The noble Earl said: This is a drafting amendment. I beg to move.
§ [Amendments Nos. 79A and 79B not moved.]
The Earl of GOWRIE moved Amendment No. 80:
Page 19, line 17, leave out ("recipient") and insert ("other party to the supply referred to in paragraph (a) above ").
§ The noble Earl said: This is a drafting amendment. I beg to move.
§ [Amendments Nos. 80A, 80AB, 80B, 80C, 80CA not moved.]726
§ 11.32 p.m.
Lord McCARTHY moved Amendment No. 80D:
Page 19, line 32, after ("other") insert ("whether or not").
§ The noble Lord said: I beg to move this amendment. Its object is to allow the protection of the gateway from subsection (6)(a) so as to protect, in the context of the clause, whether or not there is a contract between the primary employer and the secondary employer aimed at under the provisions of the Bill. In other words, the Government are saying in the Bill that there is only to be protection in secondary action, under the terms of Clause 16, if there is a subsisting contract. If there is no contract between the primary employer and the secondary employer aimed at, then there is no protection.
§ We argue that there is no particular reason why protection should depend upon the, to some extent, accident of a subsisting contract and that this is one of the ways—indeed, one of the most notable ways, as we have pointed out—that the Bill puts secondary action, from a trade union point of view, at risk, because in broad terms it is extremely difficult for unions to know whether such a contract is in existence. So one of the coincidental consequences of the Bill in its present form would be a kind of reign of terror, from the trade union point of view, when, as they would have to, they approached their lawyer in a future situation and said they were thinking of taking secondary action—or, just as likely, that some of their members were facing pressure on them and had already begun to take secondary action—and asked whether this was lawful. The lawyer would say, 727 "I will take you through Section 16 of the new Employment Act", and when they got to this part the lawyer would ask: "Is there any way in which you can say whether there is a subsisting contract?"
§ It would be difficult for unions to know this, because there are a number of circumstances in which there could be no contract between the primary employer and the employer aimed at. There could be circumstances in which the contract was under negotiation. In periods when a contract is under negotiation with suppliers, the normal convention is that suppliers, as and when required, supply on an "as and when" basis. Or it could be the case—I do no suggest this would be the case in many instances—that after a period of time there was collusion between the primary and secondary employer to have no contracts at all. They could be paying on delivery of fuel to avoid secondary liability.
§ But most important of all from our point of view, there could be a subcontract system, as there very often is, or what is sometimes called a dual contract system. In other words, the goods concerned, which were upholding the dispute—it might be oil or some other form of supplies—could be supplied on a factor basis. The contract would be between the firm and their normal supplier, but the normal supplier would not in fact supply the goods; the goods would be supplied on a sub-contract basis and the contract would be between the secondary employer and a sub-contractor.
§ Therefore, we would argue that there would be no contract between the company delivering and the company aimed at in the case of the secondary action. We are saying that it would be only reasonable, even at this late stage, for the Government to think again about this, and, if they do not think again about it, to tell us why it should be that liability should lie when there is no contract and that protection should lie when there is a contract.
§ Lord MACKAY of CLASHFERN
As the noble Lord has pointed out, this amendment would have the effect of both widening the scope for secondary action and also, we would suggest, introducing a substantial element of uncertainty into what is, as drafted, a precise definition in subsection (6)(a) of the clause. The 728 clause provides that secondary action will retain immunity only if it satisfies certain conditions, one of which is the existence of a contract between the employer or supplier whose employees are taking the action and the employer in dispute. In effect, this amendment removes that condition. The clause quite deliberately defines the supplier or customer of the employer in the dispute in terms of contractual relationships existing during the dispute.
There are several reasons for this approach. First, it is precise. The existence of a commercial contract is a question of fact which can be capable of ready proof. Any alternative—including what is proposed in this amendment—would pose serious problems of interpretation for the courts in applying the legislation to particular circumstances. Secondly, it is most unusual for employers to contrive to do business without a contract. Firms simply do not arrange to buy or supply goods or services without agreeing the details of payment, delivery and so on. Such an agreement, whether written or not, constitutes a contract at law. If an employer had a contract which was concluded before the dispute began or there is a possibility that he might enter into a contract during or after it, that is no reason why he should be damaged by secondary action. Without such a contract he cannot supply goods to the employer in dispute or take them from him. And without such an active business relationship during the dispute, there is, in our judgement, no legitimate reason for taking secondary action against him.
A third reason for the reference to contracts is that, in common law, it is when contracts are interfered with that a cause of action arises. This clause itself opens by referring to the contract in question. If an employer does not have a contract for the supply of goods and services, then he has no cause of action in the event of any disruption to the supply of those goods or services, unless of course the industrial action which causes that disruption leads to the breach of other contracts to which he is a party. But I emphasise that it is very difficult actively to carry on business without a contract.
It was suggested that the unions would be unlikely to know the contractual 729 position. I really think that employees and their trade unions are not as ignorant of the business relationships of their employers as the noble Lord's remarks would suggest. Few employers can keep their order books or the source or destination of goods secret from their employees, even if they wished to do so. If a firm is providing goods or services directly to another employer, or receiving them from him, then there will be a contract. If an employer does not have a contract with an employer in dispute, he will be well advised to bring that fact to his employees' attention before secondary action by his employees gets very far, so that the organisers are aware of the risk of legal action if they go ahead.
If the situation is one which does not justify secondary action under the clause, one would expect the employer to bring that to the attention of his employees pretty quickly. As I said, the question of whether or not there is a contract is a matter which is capable of reasonably precise proof. I would invite the Committee to reject this amendment.
§ Lord McCARTHY
I am afraid that we cannot accept the answers of the noble and learned Lord. As I have said, it is a fortuitous fact whether there is a contract. We have given many examples of when there need not be a contract, and from what he said the noble and learned Lord has actually suggested to employers that they should not have contracts and should tell their workers that they have not got contracts, and that therefore they cannot use secondary action. I am afraid we cannot withdraw this amendment.
§ On Question, amendment negatived.
§ 11.40 p.m.
Lord WEDDERBURN of CHARLTON moved Amendment No. 80E:
Page 19, line 33, after ("them") insert ("or between one of them and another person")
§ The noble Lord said: In a sense this is the mirror of the argument which has just been put, and I should have thought that it would now put the Government in some difficulty. The argument here is that as you can get through the gateway only by interfering with and disrupting supplies (and I quote from subsection (6)(a)) in pursuance of a contract between 730 them subsisting at the time—that is, between the employer in dispute and the secondary employer, if I may call him that and as he will become known—then it is really rather difficult to ask us to believe that this is a gateway to legality. The model set up by subsection (6)(a) is a child's guide to economic and industrial reality. In commercial life there is not just a contract between the supplier, the secondary employer and the employer in dispute: one may arrange with someone else to carry the goods; one may arrange with someone else to warehouse the goods, to process the goods, to deal with the goods in some other way.
§ Accepting that the Government now insist that it is interference with contract, direct disruption of supplies, and that the gateway to freedom is by contract, nevertheless, in that situation, by putting in the words "in pursuance of a contract between them" they allow the gateway to freedom only where the commercial contract which is relied upon in relation to Clause 16(1)(b) is that contract between the employer in dispute and the employer in the secondary action. That means that any other commercial contract, adding 16(1)(b) and (a) to subsection (2) in the light of the definition in subsection (6)(a) would amount to an illegal secondary action, because there would be secondary action within subsection (2) and an interference with a commercial contract within (1)(a) which was not a contract between them.
§ So the elementary justice, surely to be a gateway to legality at all it must include a case where there is a contract, for example, of carriage between one of the employers in order to fulfil the contract of supply. If that is not covered, the gateway to legality of secondary action disappears altogether, and the arguments of the noble Lord, Lord Orr-Ewing, need not have been carried on at all, because (3) and (4) do not really exist. I beg to move.
§ Lord MACKAY of CLASHFERN
So far as I understand the argument to which we have just listened, the noble Lord, Lord Wedderburn, seems to assume that the existence of some agent, middle man or carrier will mean that there is no direct contract between the two employers.
§ Lord MACKAY of CLASHFERN
In that case I have not understood what the noble Lord has been saying. It may well be my fault, but that is certainly how I understood him. In any case it seems to me that the essence of this matter is that the contractual relationship is required before one comes into Clause 16(1) at all and before one comes into the underlying tort which gives rise to this question. Therefore, I hold to the view—and I am sorry if I have misunderstood the noble Lord's argument on this matter—that the only reasonable basis on which the secondary action can be defined is by reference to existing contracts between them, defining the first supplier or first customer in that way.
§ Lord WEDDERBURN of CHARLTON
In order to encourage the noble and learned Lord to come back to the matter on Report, I put it in a sentence to explain where I think there is a misunderstanding. What I am saying is that the commercial contract in respect of which the action would be brought in court under Clause 16(1)(a), which is the ultimate point of the disruption, will be the contract of carriage, which will not qualify under Clause 16 subsections (3) and (4) because of the definition in Clause (6)(a). So the whole thing disappears in a whiff of smoke. We shall not divide, but we press the amendment.
§ On Question, amendment negatived.
§ [Amendments Nos. 80F and 80G not moved.]
§ 11.46 p.m.
Lord RENTON moved Amendment No. 80GA:
Page 19, line 40, leave out from ("Act") to end of line 43
The noble Lord said: I beg to move Amendment No. 80GA. It would have the effect of leaving out of subsection (7) of Clause 16 these words:
and for the purposes of this section employers shall be taken to be parties to any trade dispute in which they are represented by an employers' association
This, in effect, definition of "employers" could have an important bearing upon whether or not an employer had a right to sue under subsection (2), the last two lines of which read:
if the employer under the contract of employment is not a party to the trade dispute
One well understands the position where there is an employers' organisation negotiating with a trade union and reaching certain agreements and falling into dispute collectively. But there could be occasions when an employer expressly disagreed with the action of the employers' association, or one could perhaps have a very small employer in an out-of-the-way part of the country who was not aware of what was happening but would nevertheless suffer, and who, apart from this provision, would be hampered by the expression used here. Of course, it all turns on what is meant by the expression "represented".
§ May I say that this is only a probing amendment in order to get from the Government some indication of what they really have in mind with these words? I should like an indication from the Government, if they are prepared to give it at this very short notice—and I have given no notice of what I was about to say —on the points I have mentioned, namely, the case of the employer who is a member of the association but not in agreement with their policy or not in agreement with the position they have taken up in the dispute, and that of the smaller man who is out on a limb. I beg to move.
§ Lord MACKAY of CLASHFERN
We are concerned in this amendment with the meaning of the words,and for the purposes of this section employers shall be taken to be parties to any trade dispute in which they are represented by an employers' association.It seems right to extend the trade dispute parties in something of this direction. May I say what we have been trying to achieve? These words achieve two things: first, they ensure that an employer who is in dispute is regarded as being in dispute even where he passes the responsibility for negotiating a solution to that dispute to his employers' association. But in addition these words ensure that an employer is not regarded as a party to a dispute simply because he happens to be a member of an employers' association which is representing other employers who are in dispute. Therefore, to take the example which my noble friend gave, of a small employer who happens to be a member of a large organisation but has no interest in or desire to participate in a dispute the association is 733 carrying on on behalf of others, he would not be covered. We consider that the draftsmen have been very capable in picking a very concise phrase which achieves these two things at once.
The second purpose is the more important. The words "they are represented" are significant. An employer cannot be represented, in our view, in a dispute if he is not himself involved and has no interests to be protected or represented. It is important, as my noble friend has pointed out—and we are obliged to him for doing so—that employers should not be subjected to secondary action simply because they are members of the same employers' association as an employer in dispute. That is the point to which we have given careful consideration and the use of the phrase "represented by" is intended to cover precisely that point.
§ Lord RENTON
I am most grateful to my noble and learned friend. I am convinced by his assurance and accordingly, I beg leave to withdraw the amendment.
§ Amendment, by leave, withdrawn.
§ 11.50 p.m.
Lord WEDDERBURN of CHARLTON moved Amendment No. 80J:
Page 20, line 1, leave out subsection (8).
§ The noble Lord said: I beg to move Amendment No. 80J. We move this amendment formally to put it on the record.
§ On Question, amendment negatived.
§ [Amendments Nos. 80K to 80P not moved.]
§ Lord WEDDERBURN of CHARLTON had given notice of his intention to move Amendment No. 80Q:
§ Page 20, line 2, at end insert—
§ (" (9) Where an applicant relies upon the provisions of subsection (1) above in an application falling within section 17(2) of the 1974 Act, the court shall not grant an injunction unless—
- (a) a reasonable opportunity has been given to the party against whom the injunction is sought to cross examine any person who gives evidence; and
- (b) that party fails to show the likelihood of establishing the matter or matters which would afford a defence within the meaning of that subsection under the provisions of the 1974 Act as amended by this Act.
§ (10) Where an application for interdict relies upon the provisions of subsection (1) above, subsection (3) of section 17 of the 1974 Act shall not apply; and, accordingly, subsection (2) of that section shall in such case apply to interdict as it applies to an injunction.").
§ The noble Lord said: As noble Lords opposite will have noted, a number of the amendments that we have put down we shall obviously come back to on Report. The Government have notice of them. As regards Amendment No. 80Q, in my view the issue of labour injunctions in regard to industrial action is a matter of great importance which should be dealt with in some manner in this Bill. In view, however, of the hour, and also of the fact that Amendment No. 80Q is a new clause dealing with this matter generally, in which I hope also to have the assistance of my noble and learned friend Lord Elwyn-Jones when the matter comes to be debated, it seems to us more appropriate to debate the matter once then rather than now and again later. Accordingly, with that explanation I shall not move the amendment.
§ On Question, Whether Clause 16, as amended, shall stand part of the Bill?
§ 11.52 p.m.
§ Lord McCARTHY
Despite the lateness of the hour, the Committee would not expect us to let this clause go by without saying something. We must recite very quickly how we see this clause very much as it was when it began. The clause removes the overall protection of Section 13 of TULRA where strikes involve breach of commercial contract and involve workers not party to the original dispute. We see no case for the removal of that general protection. This clause promises to establish an extremely limited area of secondary action protection on the most stringent conditions. Indeed, many members of the Government party opposite have said tonight that they believe that the conditions are so stringent that in fact there is no cover at all.
A whole series of tests are put up for trade unionists to get through: the principal purpose test; the likelihood test; the substitution test; the contract test and the home base on site picketing test. They all have to be got through in order for workers to have lawful secondary action. We say that that makes a mockery of the very notion of secondary action. 735 We say that this will mean endless legal wrangling over whether the secondary action is directly or indirectly achieved; whether it is likely or unlikely; whether it is in substitution or not in substitution; whether there was a contract, or whether there was no contract at all.
More important than all these things, we have argued tonight, I think with great force and great clarity, and with no argument from the other side, that this clause reaches into the very heart of primary action. The Prime Minister in a speech which she made, I think, yesterday, when she was talking about the nation speaking to the people—or maybe it was the people speaking to the nation; I cannot remember which—said that we can strike ourselves down. But we can only work ourselves up. We are against this clause because we believe that there are many honest, hardworking trade union officials who in this field, as in the field of picketing, are struggling to get themselves upright, and this clause kicks them in the teeth.
§ 11.55 p.m.
§ Lord DAVIES of LEEK
I should like to say just a few words because the Prime Minister's manifesto was quoted: but at the end it was admitted what the Prime Minister meant when she said:We shall also make any further changes that are necessary so that a citizen's right to work and go about his lawful business free from intimidation or obstruction is guaranteed".Every intelligent human being would want to agree with that. But we should like to know what the further action may be.
I shall take up just one further minute of time. Rather sadly, the marvellous work of ACAS and statutory bodies like that has been nullified by this clause. However at this late hour, much as I should like to expand on it for five or 10 minutes, I must not trespass longer on the time of the Committee. But it is a sad fact that ultimately, whatever the Government may think, that great organisation, the trade unions, will have to come face to face with the Prime Minister and with the other echelons of the Conservative Party to talk intelligently manto-man—well, she does act like a man! You cannot leave a mighty organisation such as this outside the orbit of intelligent discussion in the days of the micro-chip and new and modern technology.
The Earl of GOWRIE
We have had two major debates of great interest on Clause 16: first, an astonishing and riveting debate largely between my noble and learned friend the Lord Chancellor and the noble Lord, Lord Wedderburn, about whether there is a time-bomb ticking in this clause to prevent all forms of primary action—a measure which I do not think would receive any support even on this side of the Committee. It interested me very much that while both the noble Lord, Lord Wedderburn, and my noble and learned friend agreed with each other that this was not the intention, the argument was as to whether it was the effect.
We then came to our debate with the amendments of—perhaps I should not say all-party or even Conservatives and CrossBenchers—some party, a dissident body: the barons' revolt. One of my difficulties is that I am not entirely ever on the side of the angels. I have considerable sympathy with the revolting barons in their intention, if not always in the effects. But I think that the strongest claim that the Government can make for their approach to trade union legislation is to try to move along the lines of broad acceptability of members of trade unions themselves. Whatever the noble Lords, Lord McCarthy and Lord Wedderburn, tell us, with all their knowledge and experience, we still instinct that that is what we are doing and we instinct that that is what we are doing even when we are doing other things with which the union movement disagrees and which it does not like.
Finally, Clause 16 will require anyone contemplating sympathetic action at least to exercise the greatest care before doing so, to consider carefully the effects the action may have, what it is designed to achieve and against whom it is directed. If he does not pause and weigh all these matters carefully, he may well find that he is acting outside the immunity conferred by this clause and that the law does not protect him.
Noble Lords opposite see that as an extension, and they see it as a reason for criticising the clause. The Government are not in business to encourage secondary action or to make it easy to organise. On the contrary, we see no reason why someone who is contemplating sympathetic action should not be made to 737 pause and consider the consequences when these consequences can include putting businesses and jobs at risk and inflicting unnecessary hardship on the community.
We think we have made the first significant dent for a very long time on these kinds of practice, and that we have made it in a way which will endure in our industrial relations system. If we have done that, I think we shall have done a service to this country and to its economy which will certainly outlast us. That is why I beg to move that the clause stand part of the Bill.
§ Lord McCARTHY
The noble Earl has been kind and stated clearly the intention of the Government that primary action should not be affected. If it turns out that the noble Lord, Lord Wedderburn, is right and the Government are wrong, and that primary action is affected, may I therefore ask him: Will the Government then introduce legislation, along some lines or other, immediately to protect primary action?
The Earl of GOWRIE
I should have thought it unlikely that the Government would look with any favour at a law passed in their name through Parliament which made striking illegal at any time, in any place, and under any circumstances. It really is no good noble Lords trying to whip us into a discussion about primary action. That is not what this clause is about. I have made it clear what the clause is about. I suspect that there is an element of guilty conscience in this objection, and I think this clause should at least be given a chance to pass into the industrial relations practice of this country where we feel it will work very well.
§ Clause 16, as amended, agreed to.
§ House resumed.