§ 3.26 p.m.
§ The Earl of GOWRIE rose to move, That the draft code of practice laid before the House on 5th November be approved. The noble Earl said: My Lords, in moving the first of the two Motions standing in my name on the Order Paper, it may be for the convenience of your Lordships if I speak to both the Motions standing in my name.
§ No aspect of industrial relations in this country has occasioned greater public concern than picketing and the closed shop. That concern was vividly reflected in our debates earlier this year on the Employment Bill. I was deeply impressed, as I know were many who attended those debates, both inside and outside the House, by the strong feelings which were expressed by noble Lords from all parties and from the Cross-Benches and by the breadth and width of support for the measures which we have taken.
§ I do not intend today to rehearse the arguments which have led to the statutory protection against secondary picketing and the closed shop which is now enshrined in the Employment Act. Nor do I intend to dwell on particular instances of intimidation and disorder on the picket line or of intolerance and inflexibility in the application of closed shop agreements. These are still fresh in our minds. But that is just the backcloth to our debate today, as it was to our debate on the Employment Bill. Those are the abuses of industrial power which we tackled in the Employment Act and they are the focus of the draft codes of practice which we are debating today.
§ When we were debating the Employment Bill, I explained the Government's view of the relationship between law and guidance on good practice. I made it clear then that we believe that both are essential: indeed, that they are complementary. In the first place, we believe that it is essential for orderly industrial relations that there should be the right framework of law. It is no use relying on voluntary guidance alone to get rid of abuses if the law is seen to condone those abuses and is powerless to help those who suffer from them.1493
§ But getting the law right does not, we believe, remove the need for guidance on good practice over a wide range of day-to-day industrial relations issues. On the contrary, the law can help to change attitudes and modify behaviour but by itself it will never bring about the far-reaching changes in the procedures and institutions of collective bargaining which we all know are essential if there is to be any improvement in our industrial perormance. We have never accepted—as the leaders of the TUC like to suggest—that there is a kind of Gresham's Law operating in industrial relations whereby the so-called "bad money" of the law must always drive out the "good money" of practical guidance. In our view, that is not the case.
§ Of course, on many issues the evolution of good practice must be a matter for management and trade unions in their day-to-day dealings. But on some issues it has always been recognised that there is an important—and necessary—role for a formal, authoritative statement of what constitutes good practice throughout the whole of industry and employment. The legislation introduced by the previous Government conferred a code-making power on ACAS under which it issued a code of disciplinary procedures. It also placed a duty on ACAS to produce codes on time off for trade union duties and disclosure of information. The last Government did not attempt to tackle the much more difficult issues of picketing and the closed shop. But they did succeed in prising guides on both these subjects from the TUC in the winter of 1979. Belated and, in our view, ineffective though they were, those guides were an implicit acknowledgement—on the part of both the then Government and the TUC—of the concern that the abuse of industrial power on the picket line and in the closed shop had created in the public mind. We welcomed them at that time as an important first step.
§ My right honourable friend the Secretary of State for Employment has always made it clear that he is ready to discuss the possibility of drawing up voluntary guidance with the TUC and CBI. But voluntary guidance has to be effective and comprehensive. In their present form the TUC guides meet neither of these tests. And the TUC have made it 1494 clear that they are unwilling at this stage to revise their guides to take account of the provisions of the Employment Act. It was against that eventuality that the Act conferred on the Secretary of State the power to draw up codes of practice and to present them to Parliament for approval. In the absence of effective and comprehensive voluntary guidance, the Secretary of State has had no alternative but to exercise this power.
§ As I explained in our debates on the Bill, this power is identical with that conferred on ACAS by Section 6 of the Employment Protection Act 1975. Section 3 of the Employment Act empowers the Secretary of State to "issue Codes of Practice containing such practical guidance as he thinks fit for the purpose of promoting the improvement of industrial relations." Section 3 also lays down the procedure for the Secretary of State to follow in drawing up such codes. In accordance with that procedure the Secretary of State invited ACAS to contribute to the drafting of the codes and again, later, to comment on the draft codes when they were published for consultation. ACAS were not able to accept either invitation. Of course it was always likely that a body such as ACAS which represents both the TUC and the CBI would find it extremely difficult, and in the event impossible, to produce agreed guidance on issues as difficult as the closed shop or picketing. That is why the Employment Act provides a code-making power for the Secretary of State and not for ACAS.
§ My right honourable friend published draft codes of practice for consultation on 5th August. More than 70 organisations and individuals have submitted their comments. The overwhelming majority have given a warm welcome both to the principle of codes of practice on picketing and the closed shop and to the broad shape of the actual draft codes. They are in no doubt that guidance of the kind the codes contain is necessary and valuable for everyone concerned in industry.
§ Before I turn to the detailed provisions of the draft codes may I say a few words about their purpose and their legal status. It is important that there should be no misunderstanding about either. First, the purpose of the codes. This is made clear in Section 3 of the Employment Act. It 1495 refers specifically to practical guidance "for the purpose of promoting the improvement of industrial relations". In other words the codes provide guidance for management and trade unions, and for employers and employees. In these draft codes that guidance is of two kinds: an explanation of the law as it affects picketing and the closed shop and guidance on good industrial relations practice. The same is true of the TUC guides and of the oldest code of practice in our system: the Highway Code.
§ An explanation of the law is an essential element in these codes for two main reasons: the Employment Act has made major changes in statute law which must be clearly understood by everyone concerned. Secondly, a great deal of the law which affects picketing and the closed shop is not set down in statute. It consists of common law rights and duties which have evolved through case law. We must face the facts—as did the TUC in their guides—that there is a great deal of misunderstanding and ignorance about, for example, the relationship of picketing to the criminal law. No code of practice would be complete if it failed to explain this.
§ The codes explain the law in layman's terms. But they are not part of the law and they do not extend the ambit of the law. It is the job of the courts and tribunals to interpret and apply the law: that is made clear in paragraph 4 of the introduction to each code. It is not the job of the courts or of the police to enforce the codes. The codes do what the Act says they must do: they give guidance for the improvement of industrial relations. They are addressed to those who are directly concerned in industry with the problems of the closed shop and picketing.
§ This brings me to the second general point: the legal status of the codes. Again this is set out in the Act. Subsection (8) of Section 6 says three things: first, the codes are admissible in evidence before courts and tribunals; secondly, they are to be taken into account when a court or tribunal thinks they are relevant to the proceedings before it. It is up to the court to decide the weight to be attached to the code or a particular provision of the code in the same way that it must decide the relevance and value of any 1496 evidence which is brought before it; thirdly and perhaps most important, no part of the code of itself makes a person liable to legal proceedings: this means that a person does not simply by virtue of ignoring the codes become liable for criminal or civil proceedings.
§ These powers are closely modelled on those in previous legislation. The earliest precedent is the Road Traffic Act 1930 under which the Highway Code has operated for nearly 50 years. More recent precedents are Section 4 of the Industrial Relations Act 1971 which relates to the 1972 Code of Industrial Relations Practice, and Section 6 of the Employment Protection Act 1975 which defines the legal status of the ACAS codes on disciplinary procedures, time off for trade union duties and disclosure of information. The wording of Section 3 of the Employment Act is identical with that in the 1971 and 1975 Acts. The codes prepared under the 1971 and 1975 Acts are of course still in operation. There is no difference in legal status or effect between these draft codes and other codes produced under existing statutory powers, some of them going back as much as 50 years.
§ May I turn now to the detailed provisions of the picketing code. Your Lordships will see that Sections B, C and D set out guidance on the civil and criminal law and on the role of the police in enforcing the law. The remaining sections provide guidance on good practice. I should point out that the draft codes before us today distinguish clearly between explanation of the law and guidance on good practice. The first drafts were criticised for not making this important distinction sufficiently clear. We have accepted that criticism. We have made a number of changes to the text where there may have been some ambiguity, and paragraph 4 of the introduction identifies those sections of the code which are concerned with the law and those which are concerned with good practice. The same is true of the closed shop code.
§ Much of the guidance on good practice in the picketing code is drawn directly from the TUC guide and other trade union guidance; for instance, the T and GWU code of 1979. In particular the sections on the organisation of picketing 1497 and essential supplies and services draw heavily on existing trade union guidance. I make no apology for this. On the contrary, it seems to us to underline the fact that these codes are firmly based on existing good practice.
§ The question of putting a limit on the number of pickets has attracted special attention because of the great public concern in recent years sbout mass picketing. As paragraph 30 points out, the purpose of mass picketing is not peaceful persuasion but obstruction and even intimidation and it can so easily spill over into violence. As such it is and always has been unlawful and the police have wide powers to deal with it. It is well established in law that the police have discretion to limit the number of pickets if they have reason to fear a breach of the peace. Indeed it was established in the case of Piddington v Bates in 1960 that the police were right in that case to restrict the picket line to two people. The code spells all this out in plain terms.
But the Government believe that the code must go further than describing the law as it affects mass picketing. That is why paragraph 31 of the draft code says that
pickets and their organisers should ensure that in general the number of pickets does not exceed six at any entrance to a workplace".
It is very important that there should be no misunderstanding about this. The figure of six is not a fixed or rigid limit; nor is it a legal limit. No code of practice could impose a legal limit, for the reasons I have already explained. Nor is a legal limit necessary or desirable. It would cut across and circumscribe the discretion of the police to limit the number of pickets. No one wishes to see that. In response to a suggestion from the Association of Chief Police Officers we have also amended paragraph 28 to emphasise that the code does not affect the discretion of the police in any way whatsoever.
§ The limit of six is what it says it is: guidance to pickets and their organisers. Whenever the police are present on a picket line, the pickets should seek their directions as to how many people there should be on the picket line and where they should stand. But as we all know, the police are not always present at picket lines. In these circumstances, we believe it is essential that the code should give 1498 pickets definite guidance on numbers. We think that six should normally be sufficient to enable pickets to carry out effectively the lawful purpose of peaceful picketing at the typical factory gate or site entrance. This has been confirmed by the consultations we have held. The vast majority of those who commented on the consultative draft welcomed and supported the limit of six.
§ Turning now to the closed shop code, there are, again, two elements in the guidance it provides: the law and good practice and, again, these are clearly distinguished. Section B explains the legal rights of individuals affected by closed shops. These include the new statutory protections given by the 1980 Act as well as existing common law rights which are not affected by the Act. The remaining sections contain practical guidance on a range of issues. For instance, Section D gives guidance on the treatment of members and applicants by trade unions. Paragraphs 48 to 53 deal with union rules and procedures for handling admissions, and with discipline. In this we have drawn very much on the principles adopted by the TUC and I believe this section meets the concern expressed during debates on the Employment Bill that the Act would undermine the Bridlington Agreement. If this guidance is followed, it will not.
§ One of the most objectionable aspects of the closed shop is its use—through the implicit threat of expulsion and subsequent loss of job—as a means of compelling people to take industrial action. This is dealt with in paragraphs 54 and 55. Here, again, we have modified the consultative draft in the light of the views we received. Many employers' organisations, including the CBI and the EEF, as well as trade unions argued that the guidance on expulsion from a union for crossing a picket line in the consultative draft might have undermined trade union authority. We have listened and have amended this guidance so that it does not apply in the case of disciplinary action taken against a union member for crossing a picket authorised by his own union at his own place of work. However, it is the guidance in Section C on the periodic review of existing closed shops which has occasioned most comment. Some people have suggested that more precise and 1499 rigid provisions should be imposed, either by statute or by specifying in the code exactly how often closed shop agreements should be reviewed. Others—a much larger number, including the CBI, the EEF, the Institute of Personnel Management and a number of major industrial companies—were concerned that the guidance in the code on the subject was too inflexible. But the need for some guidance in this area was generally recognised. The division of opinion on what the nature of the guidance should be was reflected in the comments of the CBI, who suggested a number of amendments to the relevant section of the code to make it more generally acceptable. Again, we have listened and we have accepted most of these suggestions and paragraph 43 of the revised code has been amended accordingly.
§ But we believe that the code would be hopelessly incomplete if it gave no guidance at all on the need to review existing closed shop agreements. It is no more than normal good practice for managements and unions to review existing agreements, particularly if there is evidence that they are out of date or not working properly. In this respect, closed shop agreements surely are no different from any others. But since they may affect the jobs and livelihoods of individual employees, it is all the more important that they should continue only if they have the support of a majority of the employees they cover. We believe, therefore, that it is essential that they be reviewed periodically to take account of changing circumstances. That is what the code says.
§ The final section of the closed shop code concerns the difficult area of the freedom of the press. The 1976 Act included a provision for a press charter which would give guidance on matters relating to the freedom of the press, including the application of closed shop agreements to journalists. In the event, the previous Government did not bring forward a draft charter for Parliament to consider. There were talks among the parties in the industry, under the chairmanship of Lord Pearce, which produced some ideas for a press charter. These ideas are reflected in this section of the draft code. We see no need for both. So my right honourable friend the Secretary of State, subject to approval of the closed shop code by both 1500 Houses, now proposes to use the power conferred on him by the 1980 Act to proceed to repeal the requirement to produce a press charter.
§ I trust it is clear from what I have said that we have listened very carefully to the views put to us during the consultative period. We have modified the draft codes in response to those views and I believe that the codes are better for the changes we have made. We are encouraged by the wide support for the codes evident from our consultations. These codes are based firmly on existing best practice. They do not seek to impose impossible new standards of behaviour. They set out practical and realistic guidelines which are fully in line with the traditional practice of responsible trade unions and enlightened employers. I believe that they can make a very important contribution to good industrial relations in this country for a very long time to come. I commend them to your Lordships.
§ Moved, That the draft code of practice laid before the House on 5th November be approved.—(The Earl of Gowrie.)
§ 3.48 p.m.
§ Lord McCARTHY
My Lords, as far as is possible, I always like to agree with the noble Earl when I can, and I should like to start by agreeing with him in deciding to take these two codes together, though moving first of all the picketing code, because they do cover a very common area; in fact, their approach is identical and I think it is right that we should have a general debate about them. I agree also that we are not here to rehearse the arguments which we rehearsed some time ago about the Employment Act 1980. We are prepared to leave that Act to heaven and see what comes about.
We are also not here to argue a general case—I agree with what the noble Earl said about this—about codes of practice and the case for codes of practice. We on this side of the House accept the role of codes of practice much in the way the noble Earl explained them. As he said, excellent codes of practice were issued, for example, in relation to the Health and Safety at Work Act, and excellent codes of practice were issued by ACAS concerning disciplinary provisions, time off for trade union duties, and so on. 1501 Indeed, I am perfectly prepared to say that by far the best thing about the Industrial Relations Act 1971, that lamentable and unlamented provision, was the code of practice. The code of practice in the 1971 Act was so reasonable and so sensible that the late Labour Government did not bother to get rid of it. So we are not against codes of practice; and, when one is talking about codes of practice, we are not against people raising the question of analogies with the Highway Code. I shall return to the question of analogies with the Highway Code.
The Secretary of State for Employment in another place is fond of drawing analogies between his codes and the Highway Code. Would that they were apposite, because the purpose of codes of practice is really three. Their first purpose is to give ordinary men in the area in which they are affected simple, fair and balanced summaries of the law. That could be said about all the previous codes of practice until this time. It could certainly be said about the 1971 Industrial Relations code of practice, but I suggest that it cannot be said of either of these codes.
The second purpose of codes of practice is to give reasonable interpretations for ordinary men and women of certain general concepts and terms that always appear in Acts of Parliament to help them as to what those general terms might mean. That has been so of all previous codes of practice. One of the really remarkable things about this code of practice is that, contrary to what we were told many times both in this House and in another place from the Benches opposite—that we would be given interpretations of contentious and difficult phrases—there is virtually nothing in either of these codes to define, for example, what "deep personal convictions" is intended to mean, and that goes for other aspects and difficult phrases. Thus, the second purpose of a code of practice, which has been carried out in all other codes of practice, is not carried out in either of these.
The third—in some ways I agree with the noble Earl here—the most important aim of codes of practice, is to give certain non-legal guidelines based on good practice or common sense. That was certainly the case of codes of practice issued 1502 by the previous Government. It is undoubtedly and most extremely the case in relation to the Highway Code, which we are always having quoted as an example, but when it comes to saying that these codes of practice give us good practice and common sense which most ordinary people on both sides of industry would accept as uncontentious and incontrovertible, I just do not understand how anybody could stand before your Lordships' House and say that the foolish, impractical and in some ways presumptuous provisions in both of these codes of practice can come under any of those headings.
It is, of course, because of that that whereas previous codes of practice, such as the code of practice on disability provisions and trade union facilities, were passed through and emerged from the ACAS Council, the members of that council, representing practical men and women of industry, said, "We want nothing to do with these codes of practice". That is why the British Institute of Management are worried about many of their aspects. It is why the House of Commons Select Committee are equally worried and think they should have had more consultation about the details of the content of these codes. It is also why the TUC is extremely worried about both these codes.
The noble Earl said that certain provisions in and the general drift of the picketing code—I do not think I am being unfair to him by saying that he was suggesting this—were in support of certain views of the TUC. The picketing code supports what the TUC wants (if I may paraphrase the words of Lenin) as the rope supports a hanging man. To suggest that these codes, whatever they may be, have the support of the trade union movement would be misrepresentation, if one could believe that anybody would take that seriously.
Let us, then, briefly go through three or four of the main headings under which one could evaluate this code; first, the law. What a code should do in relation to the law, as I said, is to give simple, fair and balanced summaries of the law. Let us consider the picketing code, paragraph 12 of which includes an unusually restrictive definition of "at or near a place of work" which would not be acceptable to many Labour lawyers. 1503 Paragraph 15 of that code gives a narrow definition of the right of a trade union official on a picket which does not include a proper, I would say, interpretation of his rights under Section 17(5)(b). Paragraph 24 of the picketing code does not contain all the potential criminal offences which a picketer commits; it is very queer that all those offences are not listed. For example, the ancient 1875 offence of watching and besetting is not set out in the code. And strangest of all, the very recent and serious offence of unlawful assembly, which the Shrewsbury picketers committed, for some reason does not find its way into this code of practice.
On page 28, appears a monstrous quotation, and the noble Earl mentioned it, from Piddington v. Bates as the measure of picketing numbers. I do not think this is a matter of controversy; indeed, I believe almost any reputable Labour lawyer would say that Piddington v. Bates is a very extreme case and a very bad guide. Yet it is the central part of the interpretation of picketing numbers. I could bore the House with many other examples, but I pass on to the question of the closed shop. Paragraph 9 of the code of practice on the closed shop requires the new subsection (d) to deal with the provisions of Section 7(3) C(b) because the latter provisions are imperfectly summarised in the footnote, but for some reason there is no subsection (d) in the closed shop picketing code.
Paragraph 13 of the picketing code makes no mention—although this has been mentioned time and again in this House—of the problem for trade unions of lapsing. As a result of the Employment Act 1980 (we tried to point out the consequences of this from this side of the House) trade unions are now in great legal danger if they treat lapsing as lapsing and not as expulsion or exclusion, which is what it now legally is. One would have thought that could have found its way into this code of practice, but there is no guidance. Indeed, there is no guidance on the central problem which the Government seem quite unable to take on board; namely, the problem of the conflict of jurisdiction between common law provisions and the statute. Under the common law, trade unions are at risk if they expel people contrary to their rules, yet under 1504 statute law they may, in order to carry out the decisions of a tribunal, have to expel people contrary to their rules. This was pointed out time and again from this Dispatch Box, and we were told that it would be cleared up in the code, yet not one word in this code deals with this central problem.
Paragaph 18 of the closed shop code is equally vague about certain other matters, and there is the still more notorious paragraph 46 which suggests that the pre-entry closed shop may infringe the right to work. There is no respectable jurisdiction or decision which suggests that is so. It is perfectly true that there are a number of obiter from the noble and learned Lord, Lord Denning, but the general drift of judicial opinion is that there is no right to work and nothing in the Employment Act 1980 which in any way bears upon pre-entry closed shops as against post-entry closed shops, yet once again there is the insinuation—the totally unjustifiable insinuation—that appears in this code of practice that there is something peculiarly unlawful about the pre-entry closed shop.
In all these ways, for the first time we have here two codes of practice which are extremely partisan, and always in the same direction, in the way they interpret the law of this country. But that is only the beginning because, secondly, there is an even worse bias in what these codes leave out. In paragraphs 20 and 21 of the picketing code and in paragraphs 13 and 18 of the closed shop code the rights of non-unionists or third parties—anyone who has a right under the Act—to take action, for example, for unlawful dismissal, or against a trade union, are spelled out in considerable detail; it is perfectly fair, perfectly reasonable.
But one looks in vain in the code of practice for similarly detailed statements of the rights of the picketer. The code does not really address itself to the problem of how a picketer who wants to work within the law can actually work within it. It does not address itself to the problem that in fact the closed shop is still lawful in the sense that the Government in their wisdom have not decided to make the closed shop unlawful; they have decided that it is actionable in the sense that if someone is dismissed unfairly, he can receive compensation. But the objective of the closed shop is not unlawful 1505 in that sense. No explanation is given of how one can lawfully exlude non-unionists. Why?—because of course this code of practice, unlike the code of practice about road safety, is not interested in ascribing rights to all parties. The great thing about the Highway Code is that it states what pedestrians should do, what bicyclists should do, what drivers should do. It states the responsibilities and rights of all the parties, equally.
But this code of practice gives far more to the rights and privileges of non-unionists and "scabs" and people who want to walk across picket lines. People who want lawfully to carry out their trade union functions will not find their rights spelled out in the code to anything like the same extent because the Government do not really believe that picketing is a legitimate activity even within the ambit of the law. As is stated at the beginning of the code of practice on the closed shop, the Government believe that the closed shop in all its forms really ought to be unlawful anyway. So the code is not balanced in the sense of what it leaves out.
Let us come to what the noble Earl said, in a way quite rightly, was the main area of the code: the non-legal guidelines, the code of good practice, the analogy which has been made many times, and was made again today, with the Highway Code. This is as though the Highway Code was written by a drunken driver in favour of pedestrians, or as though the Highway Code was written by a pedestrian who still believes that cars should go at five miles an hour, preceded by a man with a red flag. This is not a balanced set of guidelines. These are guidelines written from one narrow, bigoted point of view.
That was of course the view of the House of Commons all-party committee. That is what the committee said in particular about balance. The committee said that the provisions about balance in relation to the closed shop would worsen industrial relations. The committee said that these provisions should be deleted, that there should not be a regular review of closed shop agreements, as indeed the CBI and the BIM have said about these aspects of the codes. Indeed, the House of Commons Select Committee said in its recent report:These codes are so complicated and controversial that the normal statutory instrument 1506 procedure, under which the House would be called on to approve them, without amendment, after one and a half hours' debate late at night is quite inappropriate".Yet we are being presented with them, late at night, or early in the afternoon, in a form in which they cannot be amended.
The fact is that the advice is explicable only on two assumptions. Either it is written by people who are totally ignorant of the facts of shop-floor life; or, secondly,—and of course these two alternatives are not mutually exclusive—it is part of internal negotiations in the Cabinet. I believe that the only way to explain the codes and the fact that we have all kinds of misrepresentations of the legal position is that they are indeed part or internal negotiations in the Cabinet. One can only assume that when the 1980 Employment Act was going through the Cabinet it would have been much worse than it is had it not been for the fact that at certain crucial moments the Secretary of State was able to say, "Don't put it in the Act; put it in the code". Of course, that is why in Congress House it is always said, "He wrote the Act; she wrote the code"—and it looks like it.
Let us, for example, go through the advice that we are given on picketing. Section F of the advice on picketing lists a variety of functions which a trade union official should carry out on the picket line. I would ask noble Lords to read Section F. The trade union official emerges as a cross between a boy scout commander and a friendly regimental sergeant-major. He must organise pickets, maintain close contact with the police, ensure that pickets understand the law—I wonder whether noble Lords have ever pictured themselves walking up and down a picket line explaining the 1980 Employment Act to pickets. The union official must be responsible for distributing badges and armbands. He must:ensure that employees from other places of work do not join the picket line and that any offers of support on the picket line from outsiders are refused".That sentence alone indicates that noble Lords opposite have not the slightest idea of the relationship between trade union officers and their members in a picket situation. The trade union official must remain in close contact with virtually everybody—with the union office, with the offices of other unions, with the police, 1507 with his own members; and if he leaves the picket line for five minutes, he must tell everybody where he is going and when he will be coming back.
That is a selection of functions for people who happen to go on to picket lines, and the net consequence will be to discourage any trade union officer and any shop steward from being seen within five miles of a picket line, especially since it is unclear that Section F—Organisation of Picketing—is in fact simply an expression of the prejudices and hopes of the Government and has nothing to do with the law.
Alternatively let us take Section G—another area which has nothing to do with the law—which spells out the role of picketers in relation to essential supplies and services. These are supposed to be commonsense provisions which suggest that:pickets should take very great care to ensure that their activities do not cause distress, hardship or inconvenience to members of the public …".The aim of the picket is to make the strike effective. The aim of the picket is to deny the employer access to his customers. His customers are members of the public. If one took that paragraph of the code seriously, there would not be any point in picketing at all.
We could go on to the closed shop code, in which there is a quite lunatic list of 30 or so conditions which one ought to think about before one even begins to negotiate a closed shop. There are provisions for obtaining the view of one's employer's association, for considering the interests of specialist groups, for excluding certain groups, such as personnel—for no reason that is given. There are also provisions for suggesting secret ballots and for suggesting that if there are secret ballots, there should be votes of more than 80 per cent. None of those provisions has any legal basis whatever.
There are proposals for periodic reviews for trifling revisions in the scope of the bargaining union. These are in fact invitations to prevaricate. They are invitations to employers under any circumstances to set out a whole series of conditions as to why they should not negotiate closed shops. If the Government really believe all those things, they 1508 should be put in the law. They should not be put in codes of practice. This is law by cowardice. It is suggesting that points that are put forward in some form as advice should in some way be taken seriously by trade unionists and employers, and even in some unspecified way by industrial tribunals in considering cases that come before them arising from the 1980 Employment Act.
That brings me, finally, to the most important objection. The noble Earl was kind enough to say that, as a result of representations made by myself and others, the dreadful mishmash of law and opinion, of which the first draft of the codes consisted, had in fact been corrected and that now it was quite clear that we have law in one place and opinion in another. Would that it were, my Lords! What is clear is that in the introduction to both the codes we are told where the law is. We are told, for example, that the law is in Sections C, D and E of one of the codes and Section B of the other code. The implication is that there is no law anywhere else. But, of course, it is not true. In fact, if you go through the picketing code, the secondary action section is a mixture of law and opinion. The organisation section, although it is in fact a section which is opinion, not law, is sandwiched between two legal sections.
If you take the closed shop code, the situation is much worse. Paragraph 20 of the code makes a legal point—there is no obligation on employers to recognise closed shops. Paragraph 30 makes a non-legal point; it is pure advice. Paragraph 31 makes a legal point—the statutory right of objectors. They are all in one section. Paragraph 32 makes a non-legal point. Paragraph 33 makes a legal point about ballots. Paragraph 34 is not law at all. One could go on. This remains a monstrous mixture of law and prejudice, and just to put at the beginning of the code the fact that you are going to separate things off does not deal with the problem.
Therefore, I want to finish by asking the Government yet again a number of specific questions, and I hope that the noble Earl will try to answer some of them. I have not given him notice of any of them because ever since these codes were published these questions have been asked by me and other people in publica- 1509 tions, in the representations of the Trades Union Congress and in evidence to the Select Committee in another place. Therefore the noble Earl cannot say he does not know them. First, why not, even now, take these dreadful things away and separate law from opinion? If the noble Earl does not know how to do it, I will do it for him. Secondly, if you want acceptance, if you want agreement, why not—in heaven's name, why not—negotiate the legal sections of this code with the Trades Union Congress? You will not get acceptance of the advice, but why not have agreed legal summaries on the basis of some of the points I raised, where I assure the noble Earl the TUC's lawyers would say they do not agree with him?
Thirdly, why not have definitions of some of these crucial phrases, of which we were told in debates we were going to get definitions? Why is there no comprehensive definition of what "unreasonable exclusion" is going to mean? It would help trade unions. Why is there no definition of "deeply-held personal conviction"? The only definition we have—and we are told by our legal friends that it does not help—is that given by the Lord Chancellor. The Lord Chancellor, speaking in this House from the Woolsack, actually told us that "conscientious objection" or "deeply-held personal conviction" could include an objection to being a member of a union that was affiliated to the Labour Party; but we are told by our legal friends that that does not mean anything because he was not speaking in his judicial capacity. Why do not the Government, even at this late stage, put some of these things in the code?
Finally, surely they could do something about this advice. Some of this advice could be modified. Do they really expect lawyers, do they really expect judges, to take this advice into account? This would be a very strange doctrine. Let me give just one example—the advice about essential services and picketing. There is nothing in English law which says that picketing is lawful or unlawful according to what is being carried through the gates. It could be blocks of ice or atom bombs. What the law says is that what matters is who you are, whether you are entitled to be there, what you are doing and whether or not you are merely peacefully 1510 persuading. That is what the law says. Are the Government suggesting that in some way all this stuff about essential services should become a new, devious definition of "obstruction"? That would be monstrous. Let the Government say that they do not mean that. Let them say that they do not expect the courts to take that aspect into account. Unless they can give us assurances on all these matters, I ask must the House to oppose both these codes.
§ 4.15 p.m.
§ Lord ROCHESTER
My Lords, I should like to thank the noble Earl, Lord Gowrie, for the way in which he has summarised so clearly the main provisions of this code. In considering the Motions, as has already, I think, been recognised, there seem to be two main points for discussion. One is the principle as to whether it is appropriate to have codes of this kind at all in the industrial relations field, and the other is whether these particular codes, in their present form, are adequate for the purpose of improving industrial relations—the purpose set out, as the noble Earl reminded us, in Clause 3 of the Employment Act.
As to the basic principle, first in this field, in my opinion, would be agreed codes of practice. On a number of occasions in this House I have advocated more of these in the industrial relations field, more particularly two years ago, when I asked the Government whether they would consult with other interested parties with a view to drawing up an agreed code of practice aimed at encouraging the establishment throughout British industry of negotiating procedures under which disputes concerning agreements already entered into would be settled by arbitration rather than by industrial action. At the time there was a Labour Government in office. There is now a Conservative Government, but nothing has been done in that direction.
The next best thing to agreed codes, in my view, would be guidance from the Government having the support of the trade union movement, as in the guides which formed annexes, as has been said, to the joint Labour Government/Trades Union Congress statement of February 1979. To the best of my knowledge, however, employers were not invited to 1511 share in the preparation of those guides, and, in the time between their publication and the demise, two or three months later, of the Labour Government, little attention appeared to be paid to them. Unlike the codes that we are discussing today, those guides did not even stem from an Act of Parliament.
So we are left with the kind of codes that are now before us, and I do not think it can reasonably be said—indeed, I am glad that it has not been said—that there has been inadequate consultation between the Secretary of State and interested parties in the three months since the draft codes were published in their original form. Indeed, on a number of points he has acted, as the noble Earl has told us, on the representations made to him by employers, by trade unions, by the police and by the Select Committee on Employment in another place. It is my understanding, notwithstanding what I understood the noble Lord, Lord McCarthy, to say, that parts at least of the code on picketing seem to have been taken almost unchanged from the TUC guidance of last year.
There are precedents for codes of this kind. I shall not dwell on them, because the point has already been made in the Industrial Relations Act of the Conservative Government in 1971, and it was re-enacted in the Trade Union and Labour Relations Act 1974 and in the Employment Protection Act 1975; and in those acts, as has been said, the codes were given precisely the same status in relation to the law as those that are now before us.
When the principle of whether there should be codes such as these was discussed at the Committee stage of the Employment Bill a few months ago, we on these Benches supported the concept, which we saw as being even-handed in the sense that trade union members, equally with employers, could rely on them in evidence. Specifically in relation to the closed shop, I then expressed the view that the code of practice promised by the Secretary of State on this subject would deal better than would the law with the question of how best to review the level of support for the existing closed shop agreements; and that is one of the things that the second of the two draft codes before us seeks to do. In the absence of agreement between the Govern- 1512 ment, employers and trade unions, codes of practice issued by the Secretary of State (as these have been) after due consultation with the other interests involved are better than nothing. I hope that they may be viewed for what they appear to be—simply guides as to orderly practice to be followed. In that belief, anyway, we on these Benches will continue to give our support to the Government on the basic principle involved.
If I may turn to the content of the codes themselves, here my task is a little less straightforward because we are asked to approve each code as a whole and we are debating them together. I make no complaint about that; it is for the convenience of the House, as the noble Lord, Lord McCarthy, has already indicated, that we should do so. But for that reason it is not possible to do more than comment briefly on some of the main points involved. First, I welcome on a general point the fact that in their revised form it is now at least somewhat plainer than in the original draft what must and what may be done.
Regarding the code on picketing, in general I would say that that has the support of my noble friends and myself. I question whether it is wise in Section 31, to seek to limit to six the number of pickets at any entrance to a work place. I wonder whether it might not have been better to adhere to the advice offered in the code which was published at an earlier stage by the Industrial Society, a widely respected and independent body, supported by both employers and trade unions, that the number of pickets should be "reasonable". I say this not because I envisage circumstances in which more than six people would normally be needed peacefully to persuade others to stay outside a factory gate, but because in the present highly charged industrial and political atmosphere I have a certain fear that this particular provision may have the opposite effect to that intended in encouraging militants to vie with each other to be the seventh man. I wonder whether it might not have been better simply to leave to the police the matter of determining in a particular place whether the number of pickets is likely to lead to a breach of the peace and, subsequently, to the court or to the industrial tribunal a decision as to whether a number is reasonable.
The Earl of GOWRIE
My Lords, I am grateful to the noble Lord for giving way. It is left to the police. This is simply guidance to what would be the normal, sensible procedure; but it is utterly at the discretion of the police as to what the number should be.
§ Lord ROCHESTER
My Lords, I think that that makes me feel all the more doubtful as to the wisdom of including a number so precise as six. But I am giving expression to a doubt; I am not making an assertion; and it may be that when the noble Earl comes to give a considered reply at the end of this debate he will be able to relieve me more than he has so far done as to that doubt.
Also I have some sympathy with what was said by the noble Lord, Lord McCarthy, in relation to this same Section 31 on picketing, and I wonder there too whether employment of the word "ensure" is quite the happiest that might have been used, where it is stated:Accordingly pickets and their organisers should ensure that in general the number of pickets does not exceed six".I wonder if some word rather less compulsive as a burden on the pickets as opposed to the police might not have been better in that case.
The only other specific comment that I have to make on picketing relates to Section 55 on the code of practice on the closed shop. Here I welcome the fact that the Government are no longer seeking in the case of official disputes, as the noble Earl has made plain, to limit the freedom of trade unions to take disciplinary action against members crossing picket lines. In the light of the new remedies available under the Act for people unfairly dismissed, it is my view that it is best not to seek at this stage further to diminish the authority of the trade unions; and so I welcome that provision in the code. As I have said—and I went out of my way to say it—at the Second Reading of the Bill, the trade unions are with us whether we like it or not and our industrial performance can be improved only with the co-operation of their members.
As regards the closed shop, there is really not much for me to say. I made it plain in our discussions on the Employment Bill itself that the whole concept is repellent to those of us on these Benches 1514 as being illiberal in principle On the other hand, at the Committee stage I expressed the view that progress in dealng with this and with other industrial relations problems was more likely to be made through the operation of codes of practice than by the law; and the code on the closed shop which was then promised is now being discussed by us.
Of course, Liberals welcome the emphasis placed in Section 35 of the code on the closed shop on the point that 80 per cent. of the workforce should be only the minimum required to support the establishment of a closed shop and that an employer should now be able to opt for a higher percentage being in favour before he agrees to such a radical change in the working conditions of his employees. It is not so much my political allegiance as my former industrial experience that causes me also to welcome the recognition in Section 42 of the revised code that, in calling in its original form for regular reviews of existing closed-shop agreements, the code was too restrictive and might have done more harm than good to industrial relations. Although the change may not seem to be all that substantial, I think that the insertion of the words:Reviews should take place every few years",and that closed shop agreements should be subject to periodic review, is for that reason to be supported.
For the rest, these codes have our broad support. I am glad that they are being debated in this Session of Parliament, even though it is on the last day, so that in the new Session management and employees down the line—freed I fervently hope from further controversial legislation in the industrial relations field—again have the opportunity to work more constructively together.
There is one more matter I want to raise and I have hesitated about whether to refer to it. I have decided to do so partly at least in view of what it was that the noble Lord, Lord McCarthy, had to say. May I add that I am here not making any value judgment. No more than any other political action can codes of practice of this kind do anything positively to solve our industrial relations problem. But there is one political act that it is within the power of politicians to carry out that would in my view do more than any other action to improve our industrial relations 1515 and performance. It would produce a stability and a continuity of policy that many of our international competitors enjoy and we do not. That would be to provide this country with a more representative parliamentary election system and thus ensure, among other things, that in future contradictory laws do not continue to be enacted in the industrial relations field, and that those laws which are enacted stick, and stick because they demonstrably have the support of a majority of the people.
I suggest that it is highly significant that a number of the most respected Members of the Benches opposite, who have risen to be chairmen of their companies, are now advocates of such a development. I earnestly hope that many more people, of all political parties and of none, who long for some consensus and consistency of industrial and, for that matter, of economic policy, will come together on this point while there is still time.
I have said that deliberately not just as a spokesman of the Liberal party but from long experience of industrial relations in practice. If there are some who feel that it has nothing to do with codes of practice on picketing and the closed shop, I do not doubt that there are many more hearing or reading about this debate who will think that that matter is highly relevant to our discussions.
§ Lord McCARTHY
My Lords, before the noble Lord sits down, may I ask him whether he still agrees that the Government gave sufficient time to consider the provisions of these codes in the light of the views of the House of Commons Select Committee on Employment? That committee said:We consider that the consultation procedure adopted by the Secretary of State was unsatisfactory, that he published the draft codes three days before the House rose and called for comments no later than a date 17 days before the House was due to resume. This shows scant regard for the views of Parliament".
§ Lord ROCHESTER
My Lords, I do not want to enter into a "cut and thrust" with the noble Lord about that. It is a matter of opinion. I respect the opinion of others; I have offered mine and I see no reason to change it.
§ 4.35 p.m.
§ Lord COTTESLOE
My Lords, I will not detain the House for more than a few moments. These codes of practice are not and cannot be perfect. We may think that they could be improved, some of us in one way, some in another; but we have no power to amend them. Perhaps it is just as well, thinking back over the past week or 10 days, that we have not. We have only the options of accepting them or rejecting them as they stand. It is a matter of these codes or no codes. I hope, even if those on the Opposition Benches choose to divide the House against accepting them, that the House will accept them by a massive and decisive majority.
These codes and the Acts to which they are referred, have been represented as being an attack on the trade unions. They are of course nothing of the sort. As we all know, sections of the trade unions have in recent years been led to use their great power as an instrument in some cases of tyranny and of intimidation in matters of picketing and of the closed shop. I need not quote examples. We have only to think of Grunwick and the coach loads of flying pickets brought down from Yorkshire to the Isle of Grain. There are many instances.
Such a use of power as an instrument of tyranny to prevent by intimidation and obstruction law-abiding citizens from going about their business is, as I believe, something deeply repugnant to the great mass of the general public, and indeed to the great majority of trade unionists in this country. It is to do something to restrain this irresponsible abuse of power that these codes of practice and the Employment Act itself have been brought forward.
It must be in the interests of the trade unions themselves, of their leaders and of their members alike, that they should be encouraged instead of abusing their great power and influence by applying them as instruments of tyranny to apply them as they can and should do towards increasing industrial productivity and efficiency, and so towards creating employment, prosperity and wealth so that the whole nation—trade unionists and non-trade unionists alike—may reap the benefits. I hope profoundly that the Employment Act, 1517 with these codes of practice, may be viewed in this light and may be—as they certainly should be if they are properly used—a valuable influence in helping to rebuild the industrial prosperity of our nation that has been in recent years so sadly depleted.
§ 4.38 p.m.
Viscount DE L'ISLE
My Lords, may I make a short intervention simply on the code of practice on the closed shop. In the preliminary draft which the Employment Secretary issued some months ago he included this statement regarding the closed shop:The Government remain opposed to the principle underlying it. That people should be required to join a union as a condition of getting or holding a job runs contrary to the traditions of personal liberty in this country. It is one thing for a union to maximise its membership by voluntary means. What is objectionable is to enforce membership by means of a closed shop. Closed shops damage the image of trade unionism itself".I find myself in profound agreement with this, as did the noble Lord who spoke from the Liberal Benches.
This is not an occasion on which to debate principles. The Employment Act 1980 is now law and the codes of practice issued under that Act are part of the law of the land. They can either be accepted or rejected. The question I ask is: will these codes and particularly the code on the closed shop tend to emphasise the individual rights and will they also tend to improve industrial relations? I think the noble Lord, Lord McCarthy, would agree if I said that trade union relations are governed by a peculiar mixture of statute law, common law, half-law, as these codes are, precedent and industrial muscle. These reflect the differences in philosophies and attitudes between political parties and between employers and employees, trade unions, employers' organisations and the differing classes of employee.
I do not doubt the genuine intention of Her Majesty's Government to improve and clarify the rights and duties of all those engaged in industry and commerce in relation to collective bargaining; but, lacking constitutional protection for individual rights, there is no firm basis from which to proceed. I fear that this attempt to codify practices in this already 1518 very difficult field may further complicate the attitudes and actions of individuals who are already caught in the net of closed shops. I think it may also make the difficulties of their advisers more complete.
May I take one section, Section 29 of the code of practice referring to closed shops, which states that where there are proposals for a new closed shop agreement and these become a matter for dispute, the services of ACAS will be available. It is only necessary to recollect that ACAS was set up by the previous Government with a philosophy on the closed shop diametrically opposed to that which I have just paraphrased as part of the philosophy of Mr. Prior and his Government colleagues. ACAS was created with the explicit objectives of widening the area of collective bargaining, with the consequent rapid extension of closed shop agreements.
The evidence of Mr. Mortimer before the Commons Select Committee, which is not yet in the Printed Paper Office, I believe tends to emphasise this view. We have to face the fact that the codes of practice issued under a philosophy, which on the whole I agree with, will, as the noble Lord, Lord McCarthy, said, certainly not meet with the approval of the trade union section of ACAS. Thus we are inviting a body with its independent existence founded on statute with specific powers to facilitate dubious and contentious matters on which it has already taken, at least in part, a positive view.
I do not say that within these constrictions, with all the difficulties that confront us with industrial relations, this House should refuse to endorse the codes of practice. One noble Lord on the Liberal Benches said that they were better than nothing. I do not myself think that that is a great commendation; they could in fact be a minus quantity. But, in the hope that the process of education—the education of the public, apart from those who are themselves involved intimately in our trade unions or in employer matters—may be beneficial, I shall go into the Lobby with the Government tonight if this Motion is challenged.
§ 4.44 p.m.
§ Lord SHINWELL
My Lords, there is no doubt in my mind that those noble 1519 Lords on the Government Benches who are in support of the submission made by the noble Earl, Lord Gowrie, in relation to various aspects of industrial relations, are actuated by the most sincere motives. I would not question their integrity for a single moment. One can understand that "the winter of discontent", as it has been described, created almost consternation among the general public and even disturbed many who support the trade union movement in all its various activities. But I wish to say, and I shall be brief in saying it, that all the codes of practice in the world, however carefully framed and animated by the most desirable objectives, will prove a complete failure. That is my belief.
The noble Lord, Lord Rochester, told your Lordships that he had substantial experience of industrial relations. May I be permitted to say that my experience of industrial relations exceeds by many long years—it is purely accidental—the experience of the noble Lord, Lord Rochester. I can recall a period before the First World War, when I was associated with the seafaring community. Having succeeded in organising seafaring men on the Clyde, in Liverpool and in Southampton—three of the most prominent liner ports—we decided in our wisdom, or lack of it, that every seafarer engaged in any of the liners concerned, whether on deck or below, in varying capacities, should become a member of our union.
That was the beginning of the closed shop. Indeed, I might almost claim to be its inventor! A closed shop was essential, apart from its desirability or its objective, for a man, either on deck or below, whether working as a fireman, a trimmer, a greaser, an engineman, a donkeyman or whatever it might be, refused to join the union at his peril. In the foc'sle or the galley—the galley was where the catering department resided, if one may use that term, because the conditions were abominable—those men knew very well that it was necessary to join the union because one could not live as a non-union man alongside members of the union. One might disappear overboard during the night or might have his throat cut!
In those days seafaring people were not very much troubled with incidents of that 1520 kind. They are now, of course, reputable, creditable people, respectable and accepted by the community; but in those days it was somewhat different. Why?—because the wages and conditions of those who sailed on the ocean and even of those on the coastal lines were the worst that anybody could imagine. Men on deck were sailing across the Atlantic in gorgeous liners for £3.10s a month, and firemen below, heaving the coal into the furnaces, were getting £4 a month. We demanded £5.10s a month and that was regarded as a horrible action on the part of the trade unions, or, at any rate, the men involved. The employers were determined to find a large number of men who were unemployed and who were ready to act we called them blacklegs—in order to destroy the efforts of the union members and of the union itself. There was picketing and, if I dare use the expression—I am not quite sure whether it is in order—it was bloody picketing. There was no nonsense about it. It was the real stuff.
Somebody—I think my noble friend Lord McCarthy and, also, the noble Lord, Lord Rochester—used the term "mass picketing". I have on various occasions, not only in connection with the seafaring community, but when engineers were on strike in the various shipbuilding yards on the Clyde, seen hundreds and hundreds—almost running into thousands—of men who were unemployed, and who had returned from the First World War with nothing to do and no work. There was no social security or, if there was any, it was a mere pittance. Naturally, they gathered in support, as they thought, of the other men, the men who were on strike, but they were actually supporting themselves. Passions ran riot in those days, just as they did during the winter of discontent.
I must make it clear beyond peradventure—I do not want to be misunderstood—that some of the incidents and episodes that occurred during the winter of discontent, particularly when pickets refused to allow foodstuffs to enter hospitals and institutions of that character, where helpless people were involved, people who were incapacitated and who were without foodstuffs, medical supplies and so on, appalled me.
But there is another kind of picketing. That is the kind of picketing against 1521 unscrupulous employers—and there are some; it is no use denying it—who will take advantage of the industrial situation, the weakness of a trade union or the weakness of the men concerned, in order to reduce, so far as it is in their power to do so, the conditions that prevail, instead of permitting them to be improved.
Therefore, I say to the noble Earl, Lord Gowrie—and I say it with the utmost friendliness, with no malice intended and with no hostility—you are wasting your time. Let the common law prevail. To that I offer no objection. If vast numbers of men turn out when there is an industrial dispute, and there are scuffles and assaults, the police are molested or there is anything of that kind, put a stop to it. Let the law prevail. But to use codes of practice, carefully framed, although subject to objections even by industrialists, cannot work. Because even members of the CBI have asserted, if I read the newspapers correctly, that codes of practice on closed shops will not work. Of course they cannot work. If there is conscientious objection on religious grounds, moral grounds or any other kind of grounds, that is a different matter. But you cannot operate a system of that kind and expect that industrial relations will be to the advantage of those concerned. That is my warning to the Government.
If I have any power on this side of the House—and I do not possess any; I have no influence either—I would advise my noble friends to divide in order to display not resentment, but essential opposition to proposals of this character. It must be left to them, but I state my opposition not because I think that the Government are completely wrong, completely and deliberately hostile, wanting to destroy and to bash the trade unions or endeavouring to worsen the conditions of the workers of this country, but because this effort will be of no value whatever. The best that the Government could do, looking ahead with foresight, understanding and with the utmost integrity, and for the good of the nation at large, would be to dismiss the project entirely.
§ 4.56 p.m.
§ Lord MOTTISTONE
My Lords, to succeed such a wonderful speech is, in fact, a great honour. I have risen very briefly to support my noble friend's 1522 efforts in putting forward these codes of practice. I am sorry that the noble Lord, Lord Shinwell, with his great wealth of experience, does not think that they will be of any use and encourages his noble friends, or the people on the same side of the House as himself, to go into the Lobbies against them, because it is true to say that we have tried all kinds of things and are coming in this day and age—perhaps it was rather different 60 years ago—to see that there are openings for such things as codes of practice. Indeed, the noble Lord, Lord McCarthy, said so and I think it is worth a try.
The noble Lord, Lord McCarthy, picked all kinds of holes in the codes of practice, and I am sure that they were genuinely picked, but they really could have been expected, in view of the general line that he personally took, let alone the party of which he forms part, when the Employment Bill was going through this House. But I suggest to your Lordships that these codes of practice are certainly worth trying. They may not be perfect, and only experience can show us where they are not perfect. But I am quite certain that my noble friend and his colleagues in the Government will be happy indeed to improve on the codes of practice if experience has shown that to be necessary. But we have to start somewhere.
The very best possible efforts were made to consult with everybody who was affected. If some people chose not to consult, that was their fault and they might have been said to be irresponsible in not trying to solve this problem which faces the nation as a whole. So I trust that the party opposite will have second thoughts about whether it goes into the Lobby against these codes of practice. I suggest that they are worth a try, and that perhaps we should tackle them again in the future when we have seen how they work. In the meantime, I wish them well.
§ 4.58 p.m.
§ Baroness SEEAR
My Lords, I do not wish to pick holes in any particular part of these codes of practice, nor do I propose to vote against them if a Division is called. But I want to voice a certain unease about the increasing use of codes of practice. I do not think we are clear about what nature of instrument codes of practice 1523 are, and I do not think we have thought out what their proper function is or, indeed, whether they have a proper function in our system. I hope that at some time your Lordships' House will take time to examine the nature and function of codes of practice, because it seems to me that what is happening is that when we have a really controversial piece of legislation, and there is something that is too hot to get through in the legislation itself, we tend to say—and I can see the attraction of this—"We will not have this in the Act. We will put it into a code of practice." When you put it into a code of practice, you do not have to be so clear about what "it" really is, because it does not have the force of law; it can only be used in evidence in a case.
I am bound to say—and this is not the first time I have thought it—that this is a thoroughly muddle-headed way of dealing with new developments in whatever sphere it may be: industrial relations, health or safety, or whatever. We of course need to have a statement in plain English about what the law means. It is good to have ideas as to how laws should be put into practice, but I question whether this thing which we have come to call a code of practice is really the right way to go. It is an amalgam of guidelines and explanations, as the noble Lord, Lord McCarthy, has pointed out, which has a very dubious legal standing, as I see it, and which seems to me to be an escape route from difficult matters which we do not wish to thresh out in legalisation.
Over the last eight or 10 years we have used this device again and again. As I say, I do not propose to oppose it on this occasion if it is put to a vote, but I think that as a legislative assembly we ought to be asking ourselves what we are really doing with codes of practice and whether this is the kind of instrument we ought to be developing to make use of on all awkward occasions.
§ Lord McCARTHY
My Lords, before the noble Baroness sits down, may I ask her whether or not she agrees with me that the essence of the distinction is whether the code is based upon agreement? The Highway Code is based upon agreement and is extremely useful, but if there 1524 is no basis of agreement there is no case for a code.
§ Baroness SEEAR
My Lords, it depends who is going to agree, which raises another issue, does it not? The agreement is with people who are outside the legislative assembly, and that raises another set of issues.
§ Viscount MASSEREENE and FERRARD
But, my Lords, you have got to start somewhere. A code of practice is only a guide to good behaviour. As we have heard, it is not enforceable in law, so I do not really see why all this heat has been engendered. The noble Lord, Lord Shinwell, appears to think that it is enforceable in law, but it is only a guide to good behaviour. He said that we should rely on the common law. Two winters ago we relied on the common law—and look what happened. There was appalling chaos.
I support these codes of practice and think that it is a really good way of going about bettering industrial relations. Let us try them out. People will probably get used to them. Then the idea will grow. In this country we have always done things by compromise. I think that it is excellent.
There is one question which I should like to ask my noble friend the Minister. It relates to the suggested number of pickets, which is six. There can also be trade union officials. I am not quite sure what number of trade union officials there can be. Very few unions are unscrupulous—they are fairly reasonable at times—but if you had an unscrupulous organisation of a picket, arm bands could be handed out and one could get 100 or 200 so-called trade union officials. That appears to be a slight weakness in the code of practice, but as it is not enforceable in law, anyway, it is not a very important point. I certainly support the Government in their codes of practice.
§ 5.4 p.m.
§ Lord O'BRIEN of LOTHBURY
My Lords, I wonder whether I may add a gloss to the point made by the noble Baroness, Lady Seear, on this question of codes of practice. She will be well aware that in the City we have long had a code of practice on take-over bids. It existed 1525 well before 1967 and was drawn up by people concerned with a particular aspect of our affairs, all of whom were agreed that those affairs had to be conducted in a decent and proper manner for the good of everybody. Nevertheless, by the time we came to 1967 that code of practice was being so abused that I, in my position as Governor of the Bank of England, had to establish a take-over panel with a certain authority—not legal authority but the authority of prestige and acceptability in the City—to make sure that the code was accepted and acted upon, even by people who agreed that it was in their best interests that it should be done.
To take the point which was made by the noble Lord, Lord McCarthy, it seems to me that a code of practice upon which the people subject to it are not agreed is a very dangerous instrument and certainly needs to be reinforced by something. In this case no doubt it will be reinforced by the law. Whether that will be a good way to reinforce it I do not know. So far as take-over bids were concerned, we in the City felt that the law was a very dangerous instrument to invoke.
My Lords, I agree very much with what the noble Baroness, Lady Seear, has said about codes of practice and the way that Governments are now trying to make use of them to shuffle off nasty bits of the legislation which should be in the law—or not at all. But enough of that. I should like to ask the Minister whether these codes are in the format in which they will be published. If so, I think that they are horribly dreary documents. I do not believe that many people are likely to read or to study dreary documents. The Highway Code has been mentioned on many occasions. That is not a dreary document. It is good; it is well illustrated; it is easy to read, and I think anyone can absorb it. I do hope that, before the codes are published, something can be done to brighten them up.
I would suggest something with cartoons as illustrations. At the moment the code of picketing, which I want to talk about for just a short time, is very obscure in some of its provisions. One has to look around and find out where they are. Let us take, for example, the question of 1526 secondary action. Secondary action, which a number of us believe may develop very extensively in the future, is hidden away in the annex. It is not completely hidden away there because two paragraphs—I think paragraphs 8 and 9—in the code itself mention secondary action. But there is no heading before those paragraphs to draw the attention of anybody to the fact that they deal with secondary action. The remaining paragraphs of that section have headings, so why not have a heading for secondary action?
Furthermore, there is no mention anywhere in the code of flying pickets. There is mention of mass picketing which has been commented upon by the noble Lord, Lord Shinwell, but the flying picket which was certainly used by Mr. Arthur Scargill during the steel strike became quite a menacing operation. There is no mention anywhere that flying pickets are illegal under the Employment Act 1980 if those flying pickets go and take up their stance on a picket line which is not their own place of work.
Putting those two together, could we not have a marvellous cartoon of a flying Arthur Scargill suddenly being brought down to earth by hitting the thunderstorm of flying outside his own area of the Yorkshire coalmines when he tries to come into a picket line somewhere other than in Yorkshire?
The Earl of GOWRIE
My Lords, I am most grateful to the noble Lord, but while the point he is making is fresh in the mind of the House, I think I should point out to him that in Section B of the code on picketing it is made quite clear what the Employment Act 1980 says about picketing, and also that picketing outside one's own place of work is quite clearly illegal. It says it there in Section B6.
My Lords, it does; but if someone wanted to join a flying picket he would not know where to look to find out whether what he was going to do was legal or not. Surely we should point out that actions which have been common in the past are now outlawed by the 1980 Employment Act. Having said that, my Lords, although I sit on this side of the House, but not with the Opposition, I propose to support the Government in the Lobby today.
§ 5.11 p.m.
§ Lord HANKEY
My Lords, I warmly support both these codes in general. I am sure that the Government are right to follow up the Employment Act with this really serious attempt to define what sensible, humane and reasonable industrial behaviour ought to be. And this not only in an Act to be applied by the courts but in codes of practice and behaviour to be held in respect by ordinary men and women on both sides of industry. I earnestly hope that the Government and everyone of good will on both sides of industry and in the press and in the media generally, will constantly refer to these codes for their own enlightenment and in order to reach sensible judgments about industrial disputes, and more especially to persuade others to be more sensible, too.
The Highway Code has been mentioned and I think it is an excellent precedent, with its advice not only to drivers of cars and trucks but also to cyclists, pedestrians and even schoolchildren, and I am sure that this shows the way we ought to go. May I add here, though, that I am more than ever convinced that the section on secondary picketing is really too lax and too complicated. But there it is: I just mention it as a grumble. We have to live with it; we have it in the law and we have to have the code, warts and all. These problems must be solved as we go along—solvitur ambulando.
These codes and the Employment Act between them are really only the end of the first stage of the Government's policy as regards industrial relations—at least I hope it is only the first stage, because there is very much more to be done. We have climbed one ridge of a mountain range. The outlook is encouraging in several ways, but ahead of us there are rocky alpine heights to be crossed before we can descend into the sunny plains of prosperity. As the wistful German poet wrote:Kennst Du das Land wo die Zitronen blueh'n?"—Know'st thou the land where the lemon trees are in blossom?My Lords, we have hardly been there once since 1906, the date of the Industrial Disputes Act.
This brings me to my last and much my most important point. No one can arrest 1528 the frightening decline of this country—no, my Lords, not even Mrs. Thatcher's Government—unless industry can be made to work. But one cannot make industry work efficiently as long as any employee or group of employees can break valid contracts of employment or procedure, or even commercial contracts, with total impunity. After studying what our successful foreign competitors do, I really wish to insist that neither side of industry should be allowed to do this and get away with it. I have grave doubts about free collective bargaining, but free collective swindling (which is what we have) is a straight recipe for industrial disaster, as our dire experience should have made clear long ago. I have for years been mixed up with export promotion abroad and I can assure your Lordships categorically that strikes and industrial disputes have been the most important factor in the dreadful loss of markets for our products, both at home and abroad, and especially in the terrible ruin of our great ports like London and Liverpool. No wonder we have unemployment!
So the mountain range I spoke of, which still separates us from the blossoming land of prosperity, is this forbidding question of immunities. I repeat "immunities" because a lot of people do not want to hear the word. We were promised a Green Paper for last summer. First it was going to come in August, and then it was coming in September; but we have not heard anything more. I earnestly trust that this will be mentioned in the Queen's Speech next week.
It may well be that the Government may want to deal with this only when the codes of practice have inspired good habits throughout industry. I would fully understand that attitude and see the point of it, but I am anxious that the Government should not leave this most awkward and prickly problem untouched for too long. It is difficult to correct inflation unless industry functions. We can cut down the monetary overhang, but if industry does not supply the goods on the market one is left with an inflation problem. That is a slightly childish way of expressing it, but there is real basic validity in the thought. I thought last year, on the basis of my five years at OEEC and OECD, that not enough people here realise the tremendous difficulty and the time needed to correct the 1529 sort of inflation that we have in this country. It is an immensely difficult problem and it can only be tackled with painful experience. That is what we ate now going through. I think the Government are entirely right to tackle that as a first priority. But besides the monetary problems, the industrial problems are really equally vital and at the heart of them is this problem of industrial relations immunities, which require a really basic reform, both as to law and practice. I hope the Government will deal with this while they still have an active public opinion behind them.
The noble Lord, Lord Renton, circulated, but never presented, a most interesting amendment to the Employment Act which restated immunities in a positive instead of a negative way. I personally think that our approach to immunities from prosecution has been wrong and that it would be better to say what can be done instead of letting people off for doing something which ought not to be done. But that is something which we must study.
In conclusion, I want to congratulate my noble friend Lord Gowrie on the really excellent, capable and distinguished way in which he has handled these questions in your Lordships' House. I wish to congratulate him on what he has done, and he has given a very good explanation of these codes to us today.
§ 5.19 p.m.
§ Lord UNDERHILL
My Lords, I had not intended to intervene in this debate but there have been so many remarks about tyrannical behaviour, the necessity to take away immunity from the law, the comments about developing proper behaviour, and so on, that I feel compelled to say a few words. If I thought that industrial relations could be solved by means of these codes of conduct, I would give them complete and 100 per cent. support. I echo the sentiments expressed by my noble friend Lord Shinwell. I am certain that no one in your Lordships' House can support violence or attacks made upon defenceless people through industrial actions, but, having said that, we must recognise that there are human feelings of workers who believe that they are not being consulted. If men come to work tonight and they are 1530 told tomorrow that a thousand of them must go in a week's time, without consultation and without discussion, of course there will be resentment, and unless we can build up a proper measure of some form of partnership and thorough consultation, these codes of conduct will not get us anywhere.
It would appear to me that some noble Lords believe that if we pass these codes of conduct we have solved the problem of industrial relations. I say "some noble Lords," because some noble Lords have put this point of view. We have been talking about tyrannical conduct. I believe there is tyrannical conduct from an employer, and we see it too often. We know that we are in an industrial recession, but, hang it all, my daugher is living in a fairly new road in what used to be a mining village in Nottinghamshire. In the last week, in this small new road of owner occupied houses, four people have become redundant and there is a fifth scared out of his wits. There was no discussion, no consultation; they have just gone to work and been told that the job is not there any more.
I should like to see some pressure put on employers concerning trade union recognition, how they should go about trade union recognition, because we still have employers who, as far as I am concerned, gravely misbehave on the question of action they take against trade union recognition. If I may take one or two points of the code on the closed shop, it says employers should consider also the effect of a closed shop on employment and on industrial relations. But there is no reference here to the fact that there are many employers who believe in a closed shop, many employers who have said publicly that the closed shop is the only sound way to get effective industrial relations in their particular industry. There is no reference to that in the code.
There is also reference in the code to this question of deeply held personal conviction. This is a point which some noble Lords will recall I raised at Committee stage. One can visualise considerable legal arguments as to what this really does mean. It can be the freedom of an individual to say, "I'm all right, Jack, and to hell with trade unionism with my colleagues". That could be held to be a deeply-held personal conviction. One 1531 could be opposed to a trade union which affiliates to the Labour Party, or opposed to a trade union because of the nature of its leadership. This is not defined and it could lead to considerable difficulty. Frankly, while I oppose some things that have been done in the name of trade unionism in the last couple of years or so, I cannot condone the actions of a man who will not support his colleagues but who believes in the "I'm all right, Jack" attitude. One can understand the resentment of his colleagues who believe that he ought to play a part in their general support.
Turning to paragraph 35 it says that it is laid down in the Act that 80 per cent. of those entitled to vote is needed in order to get a closed shop agreement. But then it says,This does not prevent an employer from deciding that there should be a higher percentage".Then it goes on to say that there must be agreement between the employer and the union on the figure appropriate. But the employer has already said: "I want a higher figure"; that is written into the code. There is no question as to whether there should be agreement; if he decides on a higher figure, there has got to be agreement on what he wants.
I also find in paragraph 30 (vii) that the agreement should provide for periodic reviews of a closed shop, and this is amplified in paragraph 42. I should like the noble Earl, Lord Gowrie, to make it quite clear that if there is a ballot taken at one time and there is not 80 per cent. support that does not inhibit another ballot being taken fairly soon afterwards if the trade union considers that there is increased support. When I look through the code it appears to be written more from the angle of not wishing to have a closed shop but defining how you can possibly do it if you can get it, rather than from a more constructive angle. Certainly there is not agreement on it.
If I may say one word on the question of pickets, agreed that the code makes quite clear that the police can decide the number of pickets; but the code goes on to say that there should be agreement that the number should not exceed six at any one entrance. It would be a very strange police officer who would decide to allow 1532 a figure above six because he would take six as being the figure which would be admissible in any hearing. It is this sort of thing that I believe needs clarification. Unless there is agreement on both sides on the code I do not believe it will be successful. My basic point is that I believe we are in a dream world in suggesting that a code is going to solve the bitter problems of industrial relations.
§ Baroness GAITSKELL
My Lords, I should like to intervene very briefly, having too listened to the debate with great interest. I do not know whether other noble Lords heard a review on radio about Northern Ireland at this moment. It seems to me that this is a very unfortunate moment to introduce this genteel code of practice we have been talking about, with unemployment approaching 3 million. However good the Government think these codes are, they are not going to succeed at present unless unemployment falls, not merely below 3 million, but unless we get rid of unemployment at this high level. In this talk on the radio about Northern Ireland they simply said that all the trouble, all the violence was entirely due to unemployment. It seems to me this code of practice has not got a chance of working unless we get rid of unemployment.
§ Lord FRASER of KILMORACK
My Lords, like the noble Lord, Lord Underhill, I had not originally intended to intervene in this debate; I only do so because I think we tend to be losing sight of one particular point, and that is all I really wish to talk about. I am warmly in support of the Government in their general industrial relations policy and in relation to these codes of conduct. I have some sympathy with what was said by the noble Baroness, Lady Seear, about the ultimate limitations of codes of conduct; they can obviously be carried too far and can be used as an alibi in certain cases. But I think that, in this particular area of industrial relations, they are at least well worth trying.
My own direct experience of industry leads me to believe that industrial relations over a wide range of British industry, perhaps contrary to some people's belief, are really quite reasonably satisfactory. We are, of course, also aware, though, 1533 that over recent years there have been plenty of incidents which have shown them in certain areas to be wildly unsatisfactory; and it is not a situation that I think any Government worth its salt could leave alone. Up to a point you can produce a framework of law, and that is fair enough, but I think that in any matter that relates to relations between human beings the law can only really go, and properly go, a little way. I therefore welcome these codes of conduct as a sort of further skirmishing area beyond the law, where some good may well be done. I do not think anybody in his senses would think that they were going to be some marvellous panacea for all the remaining problems of industrial relations—but I certainly propose to support them today.
§ 5.29 p.m.
§ Lord ARDWICK
My Lords, I must apologise for not being here at the beginning of the debate, but I had a medical appointment which could not be broken. I must also plead an interest; I have been a member of the National Union of Journalists for 50 years, and I am a life member now. I think the suspicions which are couched in Section E, "The closed shop and the freedom of the press", may apply to the National Union of Journalists rather than to the Institute of Journalists, which is full of sweetness and light but is not very effectual as a trade union, although it is a legitimate trade union.
When Professor Finer was writing about the report of the Royal Commission and was contemplating this charter on the freedom of the press he asked, "What has Mr. Albert Booth got to do with Areopagitica?". One might ask the same question about Mr. Prior. However, there did arise a fear in the minds of some of us that if you have closed shops some rather militant union branches might at some time want to tell some editor what to put in the paper and what to leave out. Therefore, there might be a conflict between the rights of trade unionists to combine and the right of editors to edit their papers properly. I think that that fear was exaggerated at the time. I do not think that it relates particularly to the closed shop. In my view that danger could theoretically be present if there 1534 were 80 or 90 per cent. union membership in a newspaper.
I rose recently during Question Time to defend the last part of the section about an editor's freedom to decide whether or not to publish any material. This clause says that:He should exercise this right responsibly with due regard for the interests of the readers of the publication and the employment or opportunities of employment of professional journalists".That is quite a wise and sensible provision because obviously there must be agreements between the union and the editor about the sheer volume of contributed matter that appears in the average daily newspaper. A number of newspapers have such agreements and I do not think that anyone finds them repressive.
I am a little worried about paragraph 57 which says:the actions of unions must not be such as to conflict with the principle of press freedom. In particular any requirement on journalists to join a union creates the possibility of such a conflict".In paragraph 56 it says:All concerned have a duty to ensure that industrial relations are conducted so as not to infringethe principle of the freedom of the press. "All concerned" would include employers. There is a mention of employers in paragraph 58, but there is no mention of employers in paragraph 57. My own experience is this; I have never known a union to interfere with my freedom, but employers have interfered quite often with my freedom to express comment.
The other day Mr. Michael Foot said that the reason he gave up the editorship of the Evening Standard was that he could foresee that he would not have an accord with Lord Beaverbrook when peace came; and he had a signal of that when that noble Lord objected to the report that he had published on the Beveridge Report. I may say that even a year prior to that I saw the blue light at the Evening Standard when I wrote a profile of Beveridge which was accepted by Mr. Foot, but which was never able to appear. So I think that it would have been a better code if employers had been brought in to paragraph 57.
Paragraph 58 says that:Individual journalists may genuinely feel that membership of a trade union is incompatible 1535 with their need to be free from any serious risk of interference with their freedom to report or comment".I should like to know the Government and the department's thinking on this. I cannot visualise what might happen. There may be some real examples—there may be a real necessity for it—but if so they are quite outside my own personal experience. I hope that the Minister when he comes to wind up will say something about that.
My experience of trade unionism as a collector is the same as that of many trade unionists; namely, that there are some people who are so mean that in the words of the late George Jean Nathan they would not pay 10 cents to see the 12 Apostles in a six-day hike race; and they can produce all kinds of philosophic reasons which are mentioned in the earlier part of this code for that meanness. But anyone who has had the job of collecting union dues knows how difficult it is to extract them from such types and how often they are in arrears and how high-minded their antiunion sentiments can be. I think that paragrah 58 strikes me as being rather naïve.
If I am critical, I must say that to write a code of this kind, to produce a wise code, is extremely difficult. The idea was born in mind of Mr. Alistair Hetherington, the then editor of the Guardian, at a difficult time in negotiations on the previous Bill. But no one until now has had the courage to grasp the nettle. The department has done so, but the result is a code that is even more imperfect than I had feared.
§ 5.36 p.m.
The Earl of GOWRIE
My Lords, I think that it could only be in your Lordships' House that we could debate two codes, one of which is about the closed shop, and enjoy a notable contribution from a Member of the House who claimed to have invented it. I do not know whether the noble Lord, Lord Shinwell, is altogether pleased with the development of his child, but he is a realist and he knows that children sometimes grow up responsibly, sometimes they lose their manners, and sometimes, like most of us, they exhibit a combination of the two.
1536 I think that the moment which I most cherished in this interesting and stimulating debate was when the noble Lord, Lord Shinwell, said that if you did not belong to the closed shop in its early days, in a seagoing context, one night you might disappear overboard, and I heard my noble friend Lord Home of the Hirsel say "sotto voce but not quite sotto enough, "That is why we now need a code of practice".
I want to thank noble Lords who have given fairly general support for the codes, even where they have added the rider that of course they will not solve industrial relations difficulties—nor are they designed to do so. They are designed to help and to provide practical and useful guidance.
I would like to take up at a fairly early stage the remarks made by the noble Baroness when she said that we were going down the dubious road, common to various Governments in the present age, of lumping that which we find difficult or contentious in legislation over on to the more neutral, safer or more blurred ground of codes of practice. I resist very strongly the suggestion that that is being done here, and I want to try to persuade the noble Baroness and the House and to clear up this confusion.
This code, as I said in my opening speech, is two things in one. It is a guide to existing law and it is neutral in that way. It describes what the law is in easy and everyday terms. It then adds to that a guide to reasonable behaviour and practice which, as I tried to show in my opening remarks, has in nearly every case been drawn from existing procedures and existing good practice as a common sense approach, but backed by the Secretary of States' views—with the authority of Parliament behind him—of what good practice should be. I do not think that this is an incompatibility and nor do I think that it is sloughing off a difficult or contentious area on to more neutral ground.
Of course, the courts must decide what weight to attach to general principles when they are dealing with particular cases. It would be quite wrong for codes of practice to make attempts to decide what individual cases might be covered or what sort of individual case situations might arise. That might possibly help the 1537 noble Lord, Lord Underhill, and others who said that the provision in the Act about deeply-held personal conviction was ambiguous. In my view it is not ambiguous in language at all, but whether or not my view is right, it is now a phrase enshrined in statute, and it is surely the business of the courts to decide what it means; in my view they will have no difficulty in doing so. However, I do not think that it would be appropriate for a code of practice, giving guidance to existing law on the one hand and to ordinary, sensible good management procedures, if you like, on the other, to confuse those two issues.
§ Lord McCARTHY
My Lords, if that is the case, how does the noble Earl explain that in the code of practice on closed shops on several occasions the Government are, in fact, defining what "unreasonable exclusion and expulsion" might mean?
The Earl of GOWRIE
My Lords, the Government—as I shall say to the noble Lord, because I think that I have detailed answers to most of his questions—are taking the view of the Secretary of State on the existing best practice, plus an interpretation of what the law is. It seems to me that the noble Lord is really asking too much of a code. It is perfectly fair for the noble Lord, Lord McCarthy, to say that we do not need codes or that this code is of no practical value, if that is what he believes; but it is not the job of a code to spell out these distinctions; as I say, it is to give an indication of good practice. But I shall return to the point of the closed shop when I answer the noble Lord.
I hope that the House will forgive me if, although the noble Lord, Lord McCarthy, spoke first, I deal with some of his points last because they were the most detailed and there were quite a number of them, so it would be more appropriate to deal with them towards the end. I got considerable pleasure from the speech of my noble friend Lord de L'Isle. He and I have had many discussions, both privately and in debates publicly here in your Lordships' House, about this institution of the closed shop which both he and I, in common with the noble Lord, Lord Rochester, do not 1538 like in any way at all. I rather agree with him when he says that one problem facing us in this country is that we lack constitutional protection for individual rights. It is not for me to say how we might remedy this lack or how the future will unfold in this regard, but I certainly share that view with him.
However, I am glad that he, in common with my noble friends Lord Cottesloe, Lord Mottistone and Lord Massereene and Ferrard, has acknowledged that we have to start somewhere. That was the phrase that I think all three used, and all three acknowledged that this was a reasonable beginning. My noble friend Lord Cottesloe said that irresponsible picketing or violent picketing was deeply repugnant to the majority of trade union members. When the noble Lord, Lord McCarthy—and, again, I shall return to this point in just a few moments—says that this code has no authority, no consultation and no agreement behind it, as he finds in the case, say, of the earlier ACAS codes, I can only say to him that our opinion is much closer to that of my noble friend Lord Cottesloe. On almost every test of public opinion that we can devise we have found that there is overwhelming consent, not only from within the union movement but from within our own political opponents within the union movement among ordinary members.
§ Lord McCARTHY
My Lords, while the noble Earl is on his feet, will be give us some evidence of that?
The Earl of GOWRIE
My Lords, since May 1979 I think that there have been nine public opinion polls of both union members and non-union members, supporters of the Labour Party, and opponents of the Labour Party, on issues connected with picketing and on issues connected with the closed shop. Off-the-cuff, the figure I remember is an 89 per cent. majority of ordinary union members, most of them supporting the Labour Party, registering their opinion in those polls about these provisions. I have never been one to give credence to opinion polls which can fluctuate very strongly, but there is an amazing pattern of development here. I am grateful to my noble friend Lord Fraser for reminding us of the limitations of law and 1539 I want to reiterate throughout my remarks that we are very sensible of the limitations of law. There are other things to be done, but we are, as it were, making a start and we have to start somewhere.
I say to my noble friend Lord Massereene and Ferrard that the number of six is meant to include all the pickets, being a sensible number, and all the picket organisers. It does not mean that there should be six pickets and 100 picket organisers. If my noble friend will do me the courtesy of referring to the debates on the picketing clauses in the Employment Act, he will see that we took provision against what I jocularly called the "wild west proviso", whereby the sheriff could designate a number of deputies in order to swell the posse.
I admired the able way in which, somewhat far from the subject perhaps, the noble Lord, Lord Rochester, was able to get a little PR for PR into a debate on picketing. His ingenuity was impressive. The noble Lord, Lord Spens—who has been a critic of our legislation—also gave me pleasure in saying that he is coming into line (if that is the right image in this context) tonight if this code is pressed to a vote. He asked me whether the codes where in their final format. I am glad to tell him that they will have more attractive covers, but they will not include illustrations or cartoons; perhaps the noble Lord might care to suggest to me privately what illustrations or cartoons he has in mind. The codes are designed in that format so that they will easily slip into one's pocket.
The noble Lord, Lord Rochester, seemed to be suggesting that the review provisions of the code on the closed shop might lead to disruption and hence worsen industrial relations. This was also a point made by the noble Lord, Lord Underhill. We do not accept that. It is clearly reasonable that existing arrangements should be reviewed from time to time. The guidance is flexible and leaves the exact timing and form of the review to the discretion of employers and unions. We would not think that that would present many problems in terms of industrial relations.
The noble Lord, Lord Ardwick, told me most courteously that he was not able 1540 to be here for my opening speech. If he will kindly read it tomorrow, he will see that I deal with some of the press provisions and perhaps if he is not satisfied with the general answer, he will ask me to write to him.
§ Lord ROCHESTER
My Lords, I am grateful to the noble Earl for giving way; mine is only a small intervention. I was with the Government on the matter of the review of the closed shops. If the noble Earl will recall, my doubts related simply to the number of six in relation to picketing.
The Earl of GOWRIE
My Lords, as I said earlier, six is a general number and is the Secretary of State's view, with the authoritative backing of Parliament, as to what might be reasonable for the purpose of peacefully persuading; but, of course, it is still left to the discretion of the police—who have responsibilities for public order and for ensuring that breaches of the peace do not occur—to limit the numbers if they so choose.
I come now to—as we would expect—the very eloquent, very informed speech, from the point of view of the official Opposition, of the noble Lord, Lord McCarthy. Frankly, I am astonished that he should question the inclusion of the reference to the ease of Piddington v. Bates in the guidance of pickets. He calls this an extreme case and of no help to anyone. But it is the case—and this answers the point that I have just made to the noble Lord, Lord Rochester—in which the police discretion to limit numbers, where they fear disorder, was established in the High Court. I cannot accept that that could be called extreme.
The noble Lord, Lord McCarthy, asked why we did not negotiate the legal sections of the code with the TUC. We should have been most happy to do so, but the TUC made it clear that they would not do this unless we also committed ourselves not to bring forward the Employment Act itself. That we were not prepared to do because, in our judgment, the vast majority of people in the country—including, as I said earlier, the vast majority of trade union members—support the Act generally. The noble Lord asked me about practical guidance in relation to the picketing code. He said that the functions of the picket 1541 organisers are unrealistic. But these are very largely a compilation of advice offered to pickets in the TUC's own guide published in 1979. We have simply drawn together a number of parts of that code and addressed them specifically to the organisers of pickets who will, of course, have the prime responsibility for the pickets' conduct. Is the noble Lord saying that he does not agree with the TUC's guide either?
He also criticises the lists of essential services and supplies, but there is scarcely anything in our list in paragraph 38 which is not in the TUC's code issued in 1979. That is why we take the view that this is practical guidance because it is largely taken from the trades unions' own practical experience. The noble Lord asked whether the Government were saying that the section on essential supplies imposes legal obligations. Of course it does not. Paragraph 4 of the code on picketing makes it clear that Section 3 is guidance on good practice. Under Section 3 of the Act, they do not and cannot impose a new legal obligation. Is the noble Lord really saying that no guidance is needed at all on this? Is he saying that pickets should not take care not to inconvenience members of the public in their task of peacefully persuading people of their case? Is he saying that the disruption of the community—for example, during the road haulage dispute—was in fact justified?
The noble Lord also criticised us for saying there was not a word on what pickets can do as opposed to what they are prevented from doing. I make no apology for the fact that the codes emphasise the restrictions which the law puts on pickets, and the rights of those who want to cross the picket lines. The noble Lord referred to such people as "scabs". The fact is that pickets have for too long sheltered under a claimed ignorance of the law. They have used this as an excuse for some of the bully-boy tactics which we have seen all too often in recent years on the picket line. But let me add that the code is dotted with advice on what pickets can do. A good example is in paragraph 18, which has been expanded to give greater guidance on peaceful picketing.
I come quickly to one or two points of the noble Lord on the closed shop provisions. He remarked on the fact 1542 that the closed shop code does not explain what will constitute a genuine objection to trade union membership under the Act. That is of course true. We made a decision not to do so because we did not think that it would be helpful. An academic or a legalistic definition of conscience, or deeply-held personal conviction as I said in answering the noble Lord, Lord Underhill, would be inappropriate in the code. It is surely for the tribunals to interpret these terms and apply them in the facts of each case. I cannot repeat too often that the purpose of these codes is not to try to do the courts' job for them.
As I said when we were debating the Employment Bill, laws can shape behaviour over time, but they will not transform deeply-rooted attitudes overnight. That I think was the message of a very remarkable contribution by the noble Lord, Lord Hankey. I agreed with everything lie said in his contribution, and not only because he was kind enough to make some polite remarks about myself, for which I thank him.
Of course inflation, with its connection with unemployment, is our first duty and our first responsibility, and of course we do not expect that this kind of legislative provision will be in the front line of that fight against inflation. But the will to put right what is wrong with our industrial relations must not stop at legislation. What is wrong with our industrial relations has had a considerable contribution, though, to inflation, as the noble Lord implies, and also therefore to unemployment. Once we have established the right framework of law difficult tasks still lie ahead of us, and that is the importance of these codes.
We part company here with the Opposition, who believe that the codes are unnecessary. When the noble Lord, Lord McCarthy, was speaking, I had the feeling that I had heard it before and that we were being given a reprise of the arguments which he and the noble Lord, Lord Wedderburn of Charlton—who I am sorry was not able to be present in our debate today—ably, but in my view wrongly, deployed in our debates on the Bill.
I think that the noble Lord, Lord McCarthy, is too gloomy. He detects nefarious purposes where there are none. He uncovers imaginary pitfalls and he 1543 conjures up the ghosts of dead controversies and what to us are moribund theories. I think that these codes are modest provisions. I think they are a sensible way forward. I very much welcome the support that they have achieved in this House today, and I commend them to your Lordships.
§ Lord McCARTHY
I simply want to ask the noble Earl whether he will give one simple undertaking: namely, in respect of Section F of the picketing code where
§ we have demonstrated that he moves from law to opinion, from opinion to law, from law to opinion. Will he not separate them off?
The Earl of GOWRIE
My Lords, I should have thought that anybody who took a commonsense reading rather than, as I said earlier, an academic or legalistic reading of that provision would see that they were quite clearly separated.
§ 5.56 p.m.
§ On Question, Whether the Motion shall be agreed to?
§ Their Lordships divided: Contents, 111; Not-Contents, 42.1545
|Ailesbury, M.||Glenkinglas, L.||Penrhyn, L.|
|Airey of Abingdon, B.||Gowrie, E.||Rawlinson of Ewell, L.|
|Alport, L.||Granville of Eye, L.||Reigate, L.|
|Avon, E.||Greenway, L.||Reilly, L.|
|Banks, L.||Halsbury, E.||Richardson, L.|
|Belstead, L.||Hankey, L.||Rochdale, V.|
|Bessborough, E.||Hawke, L.||Rochester, L.|
|Boothby, L.||Home of the Hirsel, L.||St. Aldwyn, E.|
|Boyd of Merton, V.||Hornsby-Smith, B.||Saint Brides, L.|
|Bridgeman, V.||Hylton-Foster, B.||St. Germans, E.|
|Brougham and Vaux, L.||Ilchester, E.||Salisbury, M.|
|Byers, L.||Kemsley, V.||Sandford, L.|
|Caithness, E.||Keyes, L.||Sandys, L. [Teller.]|
|Campbell of Croy, L.||Kilmarnock, L.||Seear, B.|
|Cathcart, E.||Kinnaird, L.||Seebohm, L.|
|Clitheroe, L.||Kintore, E.||Sempill, Ly.|
|Cockfield, L.||Lauderdale, E.||Shannon, E.|
|Colwyn, L.||Lindsey and Abingdon, E.||Sherfield, L.|
|Cork and Orrery, E.||Long, V.||Simon, V.|
|Cottesloe, L.||Lucas of Chilworth, L.||Skelmersdale, L.|
|Craigavon, L.||Lyell, L.||Soames, L. (L. President.)|
|Cullen of Ashbourne, L.||Mackay of Clashfern, L.||Spens, L.|
|Davidson, V.||Macleod of Borve, B.||Stamp, L.|
|de Clifford, L.||Margadale, L.||Strathclyde, L.|
|De L'Isle, V.||Marley, L.||Swansea, L.|
|Denham, L. [Teller.]||Massereene and Ferrard, V.||Swinfen, L.|
|Drumalbyn, L.||Mersey, V.||Trefgarne, L.|
|Elibank, L.||Monk Bretton, L.||Trenchard, V.|
|Ellenborough, L.||Montgomery of Alamein, V.||Trumpington, B.|
|Elliot of Harwood, B.||Morris, L.||Vaux of Harrowden, L.|
|Elton, L.||Mottistone, L.||Vernon, L.|
|Faithfull, B.||Newall, L.||Vickers, B.|
|Ferrers, E.||Northchurch, B.||Vivian, L.|
|Foot, L.||Nugent of Guildford, L.||Waldegrave, E.|
|Fraser of Kilmorack, L.||Nunburnholme, L.||Wigoder, L.|
|Gainford, L.||O'Brien of Lothbury, L.||Wilson of Langside, L.|
|Glasgow, E.||Ogmore, L.||Windlesham, L.|
|Ardwick, L.||Cooper of Stockton Heath, L.||Gosford, E.|
|Balogh, L.||Darling of Hillsborough, L.||Greenwood of Rossendale, L.|
|Bernstein, L.||David, B.||Gregson, L.|
|Birk, B.||Davies of Leek, L.||Hale, L.|
|Brockway, L.||Elwyn-Jones, L.||Howie of Troon, L.|
|Bruce of Donington, L.||Gaitskell, B.||Jacobson, L.|
|Jacques, L.||McCarthy, L.||Shinwell, L.|
|Jeger, B.||Noel-Baker, L.||Stewart of Alvechurch, B.|
|Kaldor, L.||Parry, L.||Stewart of Fulham, L.|
|Kilbracken, L.||Peart, L.||Stone, L.|
|Kirkhill, L.||Phillips, B.||Underhill, L.|
|Leatherland, L.||Pitt of Hampstead, L.||Wells-Pestell, L. [Teller.]|
|Llewelyn-Davies of Hastoe, B. [Teller.]||Ponsonby of Shulbrede, L.||White, B.|
|Ritchie-Calder, L.||Wootton of Abinger, B.|
|Lloyd of Hampstead, L.|
Moved accordingly, and, on Question, Motion agreed to.
§ Resolved in the affirmative, and Motion agreed to accordingly.