Sitting of 13 May 1971

Preamble
The House met at half-past Two o'clock
PRAYERS
[Mr. SPEAKER in the Chair]
PRIVATE BUSINESS

  DUNBARTON COUNTY COUNCIL ORDER CONFIRMATION
  Mr. Gordon Campbell presented a Bill to confirm a Provisional Order under Section 7 of the Private Legislation Procedure (Scotland) Act, 1936, relating to Dunbarton County Council.
  To be considered upon Wednesday next and to be printed. [Bill 169.]

ORAL ANSWERS TO QUESTIONS
  DEFENCE

    Territorial Army and Volunteer Reserve
    Major-General Jack d'Avigdor-Goldsmidasked the Minister of State for Defence if he will make a statement on the progress of recruiting for the Territorial Army and Volunteer Reserve.
    The Under-Secretary of State for Defence for the Army (Mr. Geoffrey Johnson Smith): The new units of the T. & A.V.R., which require an establishment of about 10,500, started to recruit on 1st April, 1971. No firm strength figures for these units are yet available, but preliminary returns indicate that their volunteer strength at the end of the month, including applications being processed, was already about 3,000—that is to say, nearly one-third of their total requirement in one month's recruiting.
    Major-General d'Avigdor-Goldsmid: I thank my hon. Friend for that very satis-
    594
    factory answer. May I take this opportunity to congratulate him on answering Questions on defence from the Despatch Box for the first time? How is the process proceeding of producing the equipment and uniform for these new units?
    Mr. Johnson Smith: I thank my hon. and gallant Friend. There were a very few minor difficulties when recruiting started at the beginning of April. There were no difficulties of which I am aware over equipment and the issue of uniforms is proceeding satisfactorily.
    Mr. Crawshaw: Are there any plans to increase this ceiling of 10,000 in the near future? Would the hon. Gentleman agree that, while it is important that we get more numbers, it is equally important that we maintain the high efficiency which has come about over the last years in the reserve forces?
    Mr. Johnson Smith: Our general task is to achieve the target of 10,500. I accept the hon. Member's point about quality.
    Mr. Marten: Has there been any advance in the proposition for country yeomanry regiments, whereby every county could provide a squadron to form three-county yeomanry regiments?
    Mr. Johnson Smith: None of which I am aware.
    Mr. Rankin: During a former period of greater activity, the Territorial Army possessed many halls which were of great use to them. Will any attempt be made to recover the use of those halls, or will some substitutes be found?
    Mr. Johnson Smith: Where there is a difficulty, I will look into it. Some halls have been sold off and one has to bear in mind the cost of reacquiring them. But I will look into any difficulty.

    Harrier
    Mr. Martenasked the Minister of State for Defence what proposals he has for up rating the Harrier.
    The Minister of State for Defence Procurement (Mr. Ian Gilmour): An up-rated Pegasus engine is already in production. An even more powerful version will be available later this year.
    Mr. Marten: I am grateful to know that we are beginning to uprate the Harrier. What is the position about sales to, for example, the Royal Navy and the Marines?
    Mr. Gilmour: Sales have been made to the United States Marine Corps. Whether or not the Navy buys the aeroplane is, of course, under consideration. There is another Question down on this matter today.
    Mr. Dalyell: Have we had the interim result of the Harrier tests from "Ark Royal"?
    Mr. Gilmour: As I said, there is another Question on this almost immediately.
    Mr. Wilkinsonasked the Minister of State for Defence whether he will make a statement on the recent evaluation of Harrier aircraft at sea.
    Mr. Ian Gilmour: Trials of the Harrier in H.M.S. "Ark Royal" started on 4th May and are still in progress.
    Mr. Wilkinson: Is my hon. Friend aware that it was 30 years ago this week that the first jet-powered aircraft flew in this country and that many believe the Harrier to be as much of a breakthrough as that aircraft was, but that its full versatility will not be exploited until its marine potential is brought to good effect by the Royal Navy?
    Mr. Gilmour: I am grateful to my hon. Friend for reminding me of that anniversary. We shall be evaluating these trials, which are in progress, and be making a decision shortly afterwards.
    Mr. Dalyell: I thank the Minister for arranging a visit for me to the "Ark Royal" at short notice. Will the evaluation be available in the Library?
    Mr. Gilmour: Almost certainly not.
    Mr. Boyd-Carpenter: Is my hon. Friend aware that a number of foreign navies have shown interest in this aircraft and that the chance of substantial export sales and earnings would be greatly improved if the Royal Navy would show confidence and place some firm orders?
    Mr. Gilmour: We are, of course, fully aware of the export potential of this
    596
    aircraft. However, we must evaluate its operational capabilities to ensure that we get value for money by employing it at sea.
    Mr. Warren: May I express the hope that these trials will be accelerated, it being nine years since the first of the Harrier derivatives started tests in the "Ark Royal"? This seems a long time for us to be waiting for a break-through to the export markets which we know are there.
    Mr. Gilmour: We can hardly speed up the trials because they are already taking place. They will be completed on Saturday.

    Royal Yacht "Britannia"
    Mr. William Hamiltonasked the Minister of State for Defence what has been the total cost of the Royal Yacht "Britannia" since it was built, including current and capital costs.
    The Under-Secretary of State for Defence for the Royal Navy (Mr. Peter Kirk): About £8½ million since she entered service in 1954. This does not include the cost of construction which was a little over £2 million.
    Mr. Hamilton: In view of the age of the ship, is there any immediate prospect of building a new one? Why is no chance given on the party Whips for hon. Members to visit this ship of war?
    Mr. Kirk: We have no plans for building a new one, and what goes on the party Whip is no concern of mine.
    Rear-Admiral Morgan-Giles: I think that my hon. Friend will be able to assure the House that hon. Members have been invited to take trips in the ship in the past, and that those who have gone have considered the money spent on her to have been very well spent.
    Mr. Kirk: I can confirm both those things.

    B.A.O.R. (Youth Service Facilities)
    Mr. David Watkinsasked the Minister of State for Defence if he will make a statement on the youth service facilities available to British service personnel and their dependants in Germany.
    The Minister of State for Defence (Lord Balniel): An official Youth Service controlled by the Commander-in-Chief B.A.O.R. has been in operation since 1st January, 1969. Four full-time youth service officers co-ordinate all activities under the guidance of a youth advisory committee. Funds are provided for works services, equipment, training and other expenses.
    Mr. Watkins: I thank the hon. Gentleman for that answer. Is he satisfied that the facilities are being used to the maximum advantage and that their availability is sufficiently well known to the Service personnel and their dependants who are entitled to make use of them?
    Lord Balniel: If the hon. Gentleman knows of any instance in which they are not well known, I will certainly look into the matter. However, my impression is that this service is well appreciated by the families of Service men, and many clubs have been formed in B.A.O.R. to assist children.
    Mr. Normanton: Having recently returned from a tour of the Army and Air Force in Germany, may I, with respect, confirm the views expressed by my hon. Friend and add that the rôle played by the youth service in training youth leaders is greatly appreciated? Having regard to this, will my hon. Friend consider an extension of this service into other areas where the Services are concentrated, and particularly into those which stand in need of similar facilities?
    Lord Balniel: I am glad for my hon. Friend's confirmation of the value of this service, under which youth leaders are trained. We are about to start a similar scheme in Cyprus, where one is working at present on a voluntary basis but with inadequate means.

    Northern Ireland
    Mr. McMasterasked the Minister of State for Defence how many separate searches for arms have been carried out in the past six weeks to the latest convenient date; how many arms, how much ammunition and what quantity of explosives have been discovered; and how many arrests in connection with the unlawful possession thereof have been
    598
    effected by the Army in Northern Ireland.
    Mr. G. Johnson Smith: In the period from 1st April to 10th May there have been over 2,000 searches of buildings and land, as well as over 124,000 vehicle checks. In the period, 93 firearms, 7,000 assorted rounds of ammunition and a considerable quantity of explosives, detonators and fuses have been found. Eight arrests have been made by the Army as a result of the searches.
    Mr. McMaster: While welcoming those figures, may I ask my hon. Friend in what proportion of cases the arms and explosives have been found in known Republican hands? Is he aware of the growing concern about the increasing use of both explosives and incendiary devices and of the frustration that is felt by law-abiding citizens there?
    Mr. Johnson Smith: The answer to the second part of my hon. Friend's supplementary question is that we are well aware of the concern that these explosions have caused. We make searches whenever there is good reason to believe that they may reveal arms, ammunition or explosives.
    I am afraid that we do not have the figures which would enable us to break down the statistics in the way my hon. Friend requests me to do in the first part of his question. I assure him, however, that searches are carried out quite impartially on the basis of information received when there is good reason to believe that the information is accurate.
    Mr. Delargy: What steps have been taken towards arresting the persons who murdered three Scottish soldiers in Northern Ireland?
    Mr. Johnson Smith: That is a different matter which does not arise on this Question.
    Mr. Biggs-Davison: My hon. Friend used the word "firearms". Does that include automatic weapons? What are the countries of origin of the weapons recovered?
    Mr. Johnson Smith: I do not have the information of the countries of origin, and my use of the word "firearms" of course included automatic weapons.
    Mr. George Thomson: Will the hon. Gentleman give further consideration to the repeated suggestions from various quarters that something should be done to restrict the widespread ownership of legal firearms in Northern Ireland during the present emergency?
    Mr. Johnson Smith: That is a matter for the Government of Northern Ireland.
    Mr. McMasterasked the Minister of State for Defence how many separate incidents involving the use of firearms or explosives have taken place in the last six weeks in Northern Ireland; and how many members of Her Majesty's forces have been injured as a result.
    Mr. G. Johnson Smith: In the period from 1st April to 10th May there have been 50 explosions and five shooting incidents. Four members of Her Majesty's Forces were injured in these incidents.
    Mr. McMaster: Is my hon. Friend aware that this is a tragic total in a very short period? Besides the four members of Her Majesty's Forces who have been injured, there have been numerous civilian casualties, including in the past week one elderly lady killed in a fire following such an explosion in my constituency. Will he study the origin of these murderous attacks and do something to improve the steps taken to prevent further such attacks in future so that those responsible should be detected quickly and a better record of arrests effected?
    Mr. Johnson Smith: These are very sad and tragic events and we are concerned about them. The most effective way of reducing the number of explosions is by tighter control over the materials and devices used to cause these explosions. I hope that my hon. Friend is aware that all this is being actively explored by the Northern Ireland authorities.
    Mr. Kilfedder: Is my hon. Friend aware that we are all concerned about injuries to soldiers in Northern Ireland? Is he also aware that for a long time a great many boarding houses in Bangor have been providing bed and breakfast at reduced rates for off-duty soldiers in this delightful resort in my constituency? Will he ensure that everything is done to help the soldiers in their off-duty
    600
    periods? They have a very onerous task in Northern Ireland and everything should be done to ensure that their morale is maintained at a high level.
    Mr. Johnson Smith: We are all very concerned that morale should be maintained and sustained to the best of our ability.

    Medium-lift Helicopter
    Mr. Tebbitasked the Minister of State for Defence when he now expects to announce the choice of the medium-lift helicopter for the Royal Air Force.
    The Under-Secretary of State for Defence for the Royal Air Force (Mr. Antony Lambton): The question whether to purchase a medium-lift helicopter for the Royal Air Force and, if so, which type, is still under consideration.
    Mr. Tebbit: Is my hon. Friend aware that Press speculation is that the choice has been narrowed to only two types and is intensely of the opinion that the Air Force desperately wants this? Is he also aware that there is a good deal of concern, at any rate on these benches, that the purchasing policies for military equipment in recent years have been decidedly soft on making sure that we get "trade-backs" in the purchase of British equipment by the United States?
    Mr. Lambton: With respect, I do not think that that is a question.

    Gunnery Ranges
    Mr. Joplingasked the Minister of State for Defence whether he will list the sites which are being considered for the gunnery ranges which will have to be moved, consequent on the decision to build the third London Airport at Foulness.
    Mr. Ian Gilmour: We are examining the possiblity of transferring the work of the Proof and Experimental Establishment, Shoeburyness, partly to West Freugh in Wigtownshire and partly to Spadeadam in Cumberland. Both are currently occupied by establishments of the former Ministry of Aviation Supply.
    Mr. Jopling: I am grateful for that answer. May we have an assurance that there will be the greatest possible consultation with local people in either

    601
    case? May we also have an assurance that my hon. Friend will pay as much attention as he can to the dangers of spoiling the amenities of both these areas?
    Mr. Gilmour: Yes. I can give my hon. Friend both the assurances he requires. We will certainly bear the amenity factors in mind and consult the local authorities.
    Mr. George Thomson: Will this transfer mean the sterilising of wider areas of land in these two places than are already in the hands of the Defence Department?
    Mr. Gilmour: Yes, About 1,500 acres of privately-owned land will need to be acquired. No extra land will need to be acquired at Spadeadam. The additional land will not necessarily be sterilised. In addition to the use for which it will be required, it can go on being farmed.
    Mr. Ronald King Murray: Will extra employment be going to the areas concerned?
    Mr. Gilmour: That certainly follows; certainly as far as West Freugh is concerned.

    Beira Patrol
    Mr. Evelyn Kingasked the Minister of State for Defence what type of ship is currently employed in the Beira Patrol, and whether he has considered the use of fewer men or smaller ships, or diminished hours of alertness; and if, in view of the shortage of frigates, he will make a statement.
    Mr. Kirk: We do not give details of such deployments, but they do not include ships smaller than frigates. The principal reasons for this are that smaller ships would not have the necessary speed or sea-keeping qualities to perform the patrol effectively and would require base support or a support ship which is not available in the area.
    Mr. King: Is it not well known that all the oil comes up the other way and that this force has no function at all? If, for curious reasons, we must have a force dedicated to not stopping the oil, why cannot we have a smaller force not stopping it? Would not three men in a
    602
    boat not stop the oil as efficiently as three frigates?
    Mr. Kirk: The oil comes up the other way because the patrol works. It cannot go in through Beira. All that we are required to do by the United Nations is to blockade the port of Beira.
    Mr. Normanton: Is my hon. Friend unaware that not only the men who man the boats but people throughout the country have the feeling that this exercise, which we are perpetuating, is completely futile?
    Mr. Kirk: That is clearly a matter for my right: hon. Friend the Secretary of State for Foreign and Commonwealth Affairs.
    Mr. Wellbeloved: Is the hon. Gentleman in a position to state the date on which the Government intend to stop the Beira. Patrol and whether that is their policy?
    Mr. Kirk: No, Sir.
    Mr. Biggs-Davisonasked the Minister of State for Defence what is now the running cost of the Beira Patrol, including expenditure by the Royal Air Force.
    Mr. Kirk: The annual extra cost of maintaining the Beira Patrol continues at about £400,000, mainly attributable to aircraft support costs.
    Mr. Biggs-Davison: Does that answer mean that we are now spending less on achieving nothing? Will the Ministry of Defence consult the Foreign Office, because the Foreign Secretary is to visit Lisbon and it is hardly conducive to good relations that this activity, which is incompatible with the alliance, should be continued?
    Mr. Kirk: The answer to the first part of my hon. Friend's supplementary is that the extra cost remains roughly the same. The answer to the second part is that he should put down a Question to my right hon. Friend the Foreign Secretary.
    Mr. George Thomson: Is the hon. Gentleman aware that the kind of questions which have been put to him by his back benchers do this country's reputation no good at all abroad and denigrate

    603
    the very effective operation carried out by the Royal Navy?
    Mr. Boyd-Carpenter: Does my hon. Friend recall that, in reply to a supplementary on Queston 13, he referred to us as being "required" by the United Nations to maintain this patrol? On reflection, does he confirm that that is the right word?
    Mr. Kirk: As I understand the position—this again should be confirmed by the Foreign and Commonwealth Office—this is a mandatory resolution of the Security Council.
    Mr. Biggs-Davison: On a point of order. In view of the unsatisfactory nature of that reply, I beg leave to give notice that I shall seek to raise the matter on the Adjournment.

    Minister of State for Defence (Official Engagements)
    Mr. Arthur Lewisasked the Minister of State for Defence whether he will publish in the OFFICIAL REPORT a list of his official engagements for Saturday, 5th June, 1971.
    Lord Balniel: It is not the practice to do so.
    Mr. Lewis: Is the Minister aware that before the Government sell us out to the Common Market—I realise that they are already harmonising their evasive and negative replies, because this is the kind of reply we get to all these Questions—there is a very important anti-Common Market rally being held in Westminster which he and the Government should attend? Would he not be better employed there than giving evasive replies?
    Lord Balniel: My reply was not in the least bit evasive. If this important meeting is taking place in the Houses of Parliament on 5th June, I am sure that the whole House will welcome the hon. Gentleman's attendance in the House.
    Mr. John Wells: Is my hon. Friend aware that 5th June is the day on which King George III's birthday will be celebrated near Windsor? Surely he should be in attendance there.
    Lord Balniel: I am flattered that my attendance is required at so many places, but I have to inform the House that I
    604
    shall not even be in the country on that day.
    Major-General Jack d'Avigdor-Goldsmid: Is my hon. Friend aware that that is the day on which the Oaks race is run?

    Armed Forces (Careers Information)
    Mr. Stokesasked the Minister of State for Defence what steps he is taking to ensure that information about careers in the Armed Forces is widely disseminated in schools, colleges, universities, etc.; whether he is satisfied that sufficient emphasis is placed on the ideals of patriotism and service in such a career; and if he will make a statement.
    Lord Balniel: All three Services have careers staff and liaison officers who are active in schools, colleges and universities. Due emphasis is placed on the ideals of patriotism and service.
    Mr. Stokes: I thank my hon. Friend for that reply. Is he in a position to tell us about the 18 local education authorities which were not fully co-operating with the Government in this respect? As he promised to review the position, may I ask whether he has done so and will he tell us the names of those authorities still not fully complying with the Government's wishes?
    Lord Balniel: Yes. I undertook to review the position in the light of the 18 local authorities which were not cooperating fully. I am happy to say that discussions are now proceeding between Ministry of Defence officials and local authorities to see whether facilities for Service career officers can be improved. I am hopeful that they will be improved.
    Mr. Tebbit: Will my hon. Friend take particular care to put pressure on the Harlow authority which put every possible obstruction in the way? It even banned the bringing of careers vans on to council property. This is an absolutely scandalous state of affairs. I should be most grateful if my hon. Friend could assist me in pressurising this council into common sense.
    Lord Balniel: This must be a matter for the local education authority to decide. But it is agreed between all parties in the House that the service

    605
    rendered by the Armed Forces is of crucial importance, so I hope that the authorities will co-operate.

    Training Aircraft
    Mr. Wilkinsonasked the Minister of State for Defence what plans he has for the replacement of the Varsity Twin-engined Trainer for training of aircrew categories other than pilot.
    Mr. Lambton: As my hon. Friend knows, the replacement of the Varsity in this role is under consideration. I have no statement to make at present.
    Mr. Wilkinson: If my hon. Friend has no statement to make, will he inform me whether a specification has gone out to British manufacturers who badly need a project of this kind to fill their rather depleted order books?
    Mr. Lambton: Obviously this plane is needed. Consideration is being given as to what is the right type of plane and precisely what are the qualifications we want.
    Mr. Dalyell: Does that mean that the Government have new ideas of an Air Force Reserve?
    Mr. Lambton: No.

  HOME DEPARTMENT

    Ashford Remand Centre
    Mr. Hugh Jenkinsasked the Secretary of State for the Home Department how many boys aged 14 and 15 years have spent how much time at Ashford Remand Centre during 1970; if he is satisfied with the conditions in which they are detained; and what action he is taking to improve the situation.
    The Minister of State, Home Office (Mr. Richard Sharpies): 358 were received in 1970, and stayed for an average of 29 days. Since August, 1970 Latchmere House has been increasingly used to relieve overcrowding art Ashford and boys aged 14 and 15 are given priority for transfer to Latchmere House.
    Mr. Jenkins: As late as April this year the Howard League said that Ashford was still very seriously overcrowded and that boys who had not been convicted of any offence were kept
    606
    in for most of the day and provided with no suitable occupation. Will the Minister have another look at the matter?
    Mr. Sharpies: Yes. I realise the problems at Ashford, but Latchmere House has made some contribution to the solution of the problem. We try to give boys on remand as much educational opportunity as possible within the facilities available.

    Cinema Advertising
    Sir R. Thompsonasked the Secretary of State for the Home Department what response he has received from cinema licensing authorities to his recent circular urging greater use of their powers to control offensive cinema advertising.
    Mr. Sharpies: The circular drew attention to public concern over recent trends in film adversiting and invited local licensing authorities to consider whether they were making adequate use of their powers in this field. It did not call for a reply.
    Sir R. Thompson: Is my hon. Friend satisfied with what he has just told me? Does not he realise that there is great public concern over this, and if licensing authorities are not prepared on their own account to respond to it and to do what most decent people in the country would recommend, will not the Government take legislative steps to ensure that they do?
    Mr. Sharples: The circular is concerned with the advertising side and we should give time for its effect to be seen. It was not generally appreciated, probably, by the public that the licensing authorities have this power and it is right that publicity should have been given to it.

    Cinematograph Act, 1952
    Sir R. Thompsonasked the Secretary of State for the Home Department if he is now in a position to announce his proposals for the reform of Section 5 of the Cinematograph Act, 1952; and if he will make a statement.
    Mr. Sharples: The proposals, on which my right hon. Friend is about to carry out consultations would require the control by cinema licensing authorities of all film exhibitions which are publicly advertised or for which admission

    607
    charges are made, unless the charges are confined to members of a club enrolled as such at least 24 hours previously; and would also involve applying the law of obscenity to all film exhibitions which are not controlled by licence.
    Sir R. Thompson: I express my partial satisfaction at that rather qualified reply. Does my hon. Friend think that he is going far enough and moving fast enough in this matter? I first raised it in the House about ten months ago and progress since then seems to have been purely at the level of consultation. Can we have effective action?
    Mr. Sharpies: I make no excuses for the progress which has been made. These steps are fairly far reaching and it is right that there should first be consultation with the trade and others concerned. Bringing film clubs within the application of the law of obscenity is a far-reaching step.

    Scotland Yard Action (Armthorpe)
    Mr. Kelleyasked the Secretary of State for the Home Department if he will institute an inquiry into the reason why £78,000 was removed from the home of an Armthorpe resident by Scotland Yard detectives, and held by them for 10 days against the wishes of the owner.
    Mr. Sharples: Since the person concerned has expressed his intention of instituting legal proceedings, it would be improper for me to comment.
    Mr. Kelley: I appreciate the difficulty in which the hon. Gentleman finds himself. Is he aware that a writ has been issued against the police in this matter? Does not this case reveal a crying need for a top-level investigation into the methods of acquiring and acting upon information by the police? Is he further aware that action of this kind can cause considerable embarrassment to a perfectly law-abiding citizen? Is he also aware that a person can be deprived of a considerable sum of money over a long period while forensic investigations are taking place? Does not he consider that the Home Office is entitled to take some action in this matter?
    Mr. Sharpies: My understanding is that the money has been returned. If it is wished to make a complaint against the police, the proper procedure exists.
    Mr. Arthur Lewis: May I ask a general question without going into this particular case? What right have the police to go into any place without a warrant? If they have a warrant, have they the power automatically to take anything if they have some ground for suspicion that it has been stolen or is not in the ownership of the right person? What is the statutory authority under which the police act? I am referring to the general case and not to the particular case mentioned in the Question.
    Mr. Sharples: The Question refers to a specific instance and it would be wrong for me to comment, in relation to a specific instance, in general terms.

  CIVIL SERVICE

    Public Service Pensions
    Dame Irene Wardasked the Minister for the Civil Service whether the pensions increases to public servants will be applied to the superannuitants of British Railways and to the gas and electricity industries.
    The Parliamentary Secretary to the Civil Service Department (Mr. David Howell): The Bill now before the House will cover certain groups of nationalised industries' pensioners who retired before nationalisation and were in central or local government service. For all others, the decision lies with the boards of the nationalised industries concerned.
    Dame Irene Ward: I thank my hon. Friend for that helpful reply. Am I to understand that those in the nationalised industries, who in the past have benefited when we have given a general public service increase, are to have their share as well? It will be very welcome, because they need it.
    Mr. Howell: The only group directly affected by the Bill are those who were local or central government employees who retired before the nationalisation of gas or electricity, or the former employees of the Post Office who retired before the Post Office Corporation was set up. For the remainder, it is entirely for the boards concerned to make their pension valuations.
    Dame Irene Ward: Poke them up.
    Mr. Arthur Lewis: Will former Members of Parliament, now retired, come under the Bill? If my guesswork is right, they will not. If I am right, why will they not? Is it right that a Member who gave 48 years service to the House of Commons should get only a miserly pension and that he and other such pensioners are kept waiting and so shabbily treated by both Conservative and Labour Governments?
    Mr. Howell: The hon. Gentleman's guesswork is right. Pension arrangements for Members is a matter for the House to decide.
    Mr. Jitney: Is nothing being done for the old railway employees who went on with British Railways after nationalisation for a few years?
    Mr. Howell: Their pensions are the responsibility of British Railways and will no doubt be dealt with by the board.
    Dame Irene Ward: Poke them up.
    Mr. Hugh Jenkins: In view of the erosion of pensioners' remunerations because of the Government's failure to control the rise in the cost of living, will the hon. Gentleman look at this matter again and see whether he can broaden the base so that more pensioners will benefit from these arrangements?
    Mr. Howell: No, Sir, because these arrangements are comprehensive and cover the areas where the Government or the local authorities are the employers or have responsibility. The pension arrangements of former employees of nationalised industries who have retired since nationalisation is by law the responsibility of the boards.
    Dame Irene Ward: Poke them up.
    Mr. Costain: One of the attractions of joining the railways at one time was the prospect of getting a pension at the end of one's career. It was an attractive job under 'those conditions, but does my hon. Friend realise that, with the lapse of time, the pensions are inadequate? Is there anything we can do to help these people, who have lived under this illusion for a number of years?
    Mr. Howell: I sympathise with that point but these are matters for the British
    610
    Railways Board, whose responsibility it is, to decide.
    Mr. Speaker: Order. The Sitting is suspended until 3.15 p.m.
    3.7 p.m.
    Sitting suspended.
    3.15 p.m.
    On resuming—
    Mr. Speaker: I suspended the House because I was advised that I have no power to allow a Question to the Prime Minister before 3.15 p.m. I think that that is a matter that might be considered by those in authority.
    Mr. Harold Wilson: So as not to waste time now, may I give notice of a point of order that I wish to raise on this matter?

  UNEMPLOYMENT
  Mr. Sillarsasked the Prime Minister how many letters he has received about unemployment this month; and what replies he has sent.
  The Prime Minister (Mr. Edward Heath): Fifteen, Sir. All of them relate to personal cases, which are being followed up by the Department of Employment.
  Mr. Sillars: Is the right hon. Gentleman aware that at this very moment all over England and Wales, people are marching eagerly into the polling stations to vote against the Government as they did in Scotland on 4th May? Does he understand that one of the prime reasons why his Government will be rejected at the polls tonight is the scandalous level of unemployment of over 800,000? Will he, once he has recovered from the trauma of the electoral position, consider over the weekend honouring his pledge to reduce unemployment at a stroke?
  The Prime Minister: Neither of the points the hon. Gentleman has made are reflected in the 15 letters I have received. As to this weekend, I propose to spend it in Scotland.
  Mr. Rose: Is the Prime Minister aware that the disturbing feature of these unemployment figures is their application to hitherto prosperous areas? Would he

  611
  particularly consider the fact that there are probably 20,000 redundancies in the pipeline already in the Greater Manchester area and that this follows the demise of coal and cotton in that area? Is he aware that he is deliberately creating a new depressed area in another part of the United Kingdom?
  The Prime Minister: The hon. Gentleman has absolutely no justification for making that statement. As he well knows, in this House motivation is not attributed to hon. Members. One of the most difficult areas is that of the central belt of Scotland and we as a Government have taken specific action to deal with it through the creation of the new special development area.
  Mr. Grimond: In view of the high rate of unemployment and unused resources generally, would the right hon. Gentleman look at the possibility of a large public works programme particularly in Scotland where it will be vital to provide infrastructure, ports and roads leading to the East Coast if we go into the Common Market?
  The Prime Minister: That is an absolutely valid point. We have always made it the basis of our regional development policy that the infrastructure should be improved to enable industry to be efficient and to gain markets abroad.
  Mr. Harold Wilson: Does the right hon. Gentleman recall my asking some weeks ago about this relatively new factor, the growth of white-collar unemployment among executives, designers, salemen and others? He promised to look into that. Has he any statement to make about it? This is a matter which is in the postbags of most hon. Members. Is it in the Prime Minister's? Secondly, while he disclaims Government responsibility for any of the unemployment may I ask whether he has seen the report on new chemical investment which speaks of tremendous cuts in chemical plant investment, largely attributed to the withdrawal of investment grants?
  The Prime Minister: I have no statement to make at the moment specifically about white-collar employment. Obviously it is part of the general problem of unemployment in this country which will be alleviated by an expanding economy when wage in-
  612
  flation has been overcome. As to chemical investment, it may be that one of the factors taken into account is the change from the grant to investment allowances, but that is not the view of the chemical industry as a whole. It has made its judgment on other considerations.
  Sir H. Legge-Bourke: Would my right hon. Friend not agree that one of the most serious features of the unemployment situation even in January, barely six months after the present Government came into office, was the fact that over 27 per cent. of those unemployed in January had been unemployed for more than six months? Is this not a clear indication that the policies of the last Government have led to this situation?
  The Prime Minister: The last Government had a very similar problem. It was the Leader of the Opposition who said that it was only restraint on incomes which could prevent unemployment, and I agree with him.
  Mr. Ford: Does the Prime Minister realise that the reason why he has not received more letters from the public is that people understand that the answers they would receive would be even less helpful than the answers he gives in this House?
  The Prime Minister: I have received just over 90,000 letters, so I do not think that the hon. Gentleman's conclusion is correct.

  EUROPEAN COMMUNITY
  Mr. Kenneth Clarkeasked the Prime Minister what plans he now has to participate in Great Britain's negotiations to enter the European Economic Community.
  The Prime Minister: The negotiations remain the responsibility of my right hon. and learned Friend the Chancellor of the Duchy of Lancaster.
  Mr. Clarke: Is the Prime Minister aware that the vast majority of my hon. Friends on this side of the House fully share his confidence in the negotiating skills of my right hon and learned Friend the Chancellor of the Duchy of Lancaster,

  613
  and are most encouraged by the good news which has been coming from Brussels in the last few days? Will the Prime Minister take the opportunity on his visit to France to reiterate the political will of this Government to enter the Common Market if the good progress in negotiations can be maintained? In particular, will he ask the President to use his good offices to maintain the pace of the negotiations so that a successful conclusion can be reached within the next two months?
  The Prime Minister: Yes, Sir. I thought that the House as a whole would be glad at the progress made at the last meeting in Brussels. I look forward to my meeting with the President of France to review the whole of the European scene, in addition to the particular question of the negotiations.
  Mr. John Mendelson: Did the right hon. Gentleman hear the remarks of Lord Campbell on the radio earlier today, speaking with the authority of the Association of British Sugar Producers, that there has been no progress at all, that the agreement about which the right hon. and learned Gentleman the Chancellor seems to be so enthusiastic means that there will be no certainty at all for the people in Mauritius, Barbados and the Caribbean, that they cannot plan their bank advances for full production, and that a sell-out has been advertised as a break-through? Will he see that there is not the same fraudulent terminology used in future so that the sugar agreement is not against the interests of sugar producers in the Commonwealth?
  The Prime Minister: No, Sir, I did not hear Lord Campbell's remarks, but it may be that, not for the first time, I should have disagreed with him if I had.
  Sir D. Renton: Will the Prime Minister bear in mind that during the last election many of us gave undertakings to our constituents that, between the publication of the terms agreed and reaching a decision in this House, we would consult our constituents, and that in large agricultural constituencies that may take some time?
  The Prime Minister: Yes, Sir. Of course I take note of my right hon. and learned Friend's point.
  Mr. Peart: Will the Prime Minister recognise that his right hon. and learned Friend gave firm assurances to the West Indies when he was there, in what I thought was a successful visit, as to long-term access to the Community? But is he not aware that the formula now agreed is worthless and that there has been a climb-down? I hope we shall have a full report when the Minister comes back, because this formula will cause considerable dismay to friends in the Caribbean, Mauritius, Fiji, India and the African States.
  The Prime Minister: Of course my right hon. and learned Friend will give a full report to the House when he returns. As the House knows, he has gone to the E.F.T.A. Ministerial meeting, which is quite right. In regard to assurances, it is a firm assurance that will be implemented, if negotiations are successful between ourselves and members of the Community, when we are enjoying our full rights as a member. That is the importance of the assurances.
  Mr. Peart: Would the right hon. Gentleman stress the importance of "bankability", if I may use the phrase of a distinguished Caribbean Minister, Robert Lightborne, when he insisted on assurances on this matter before any agreement was reached, since there has been a change of attitude?
  The Prime Minister: There has been no change of attitude at all because my right hon. and learned Friend has obtained assurances which will be implemented when we ourselves are a member of the Community, if the negotiations succeed. Therefore, we have our full rights in any future arrangements that will be made.
  Mr. Marten: As both major political parties must in practice agree to entry into the Market before we go in, would the Prime Minister have the foresight to take the Leader of the Opposition with him when he meets President Pompidou so that at least he can continue the truncated saga which goes under the name of the "Soames Affair"?
  The Prime Minister: I do not think that that would be in the national interest.
  Mr. Thorpe: Is the Prime Minister aware that many of us have great confidence in the negotiating abilities of

  615
  the Chancellor of the Duchy? Is he further aware that many of us think that far better purposes are served by the Prime Minister and the Leader of the Opposition remaining in this country in attempting to strengthen the political will to join Europe among some of their back benchers?
  The Prime Minister: It is right that when a Minister of the Crown is given responsibility for negotiations he should carry them out within the remit given to him by his colleagues. That is what my right hon. and learned Friend has been doing. So far as I am concerned as Prime Minister, there is a responsibility to meet other Heads of Government and to discuss the general issues of the future of Europe. So far as this country is concerned, when the possibility of a settlement in the negotiations becomes clear, then the country can discuss these matters, and I believe that it will then recognise the advantages of a settlement.

  DESERTED FAMILIES
  Mr. Dalyellasked the Prime Minister which Government Department has the task of tracing breadwinners of families who have been deserted.
  The Prime Minister: In England and Wales, when the courts request it, information is made available for this purpose from the central social security records and the records of the National Health Service, the Passport Office and the Ministry of Defence. Where families are in receipt of supplementary benefit the Supplementary Benefits Commission assists in tracing the person who is liable to maintain them. My right hon. Friend the Home Secretary will shortly be writing to magistrates' courts advising them to make the fullest use of these facilities.
  There are similar arrangements in Scotland and these are being brought to the attention of solicitors in Scotland.
  Mr. Dalyell: This may not be the most tactful day on which to raise the question of tracing people—[Interruption.] But, as the Prime Minister senses, there is on all sides of the House an intensified feeling that this is an urgent problem. Would he give a Prime Ministerial directive to Whitehall, in
  616
  anticipation of the Finer Committee report on the one-parent family, to work out the mechanics of the collection and payment of alimony in the light of what the right hon. Gentleman said?
  The Prime Minister: I do not think it possible for me to anticipate the report of the Committee because I have no knowledge of what its recommendations will be. In the present situation I should have thought that the machinery I have outlined in a full answer and the fact that my right hon. Friend the Home Secretary is to write to all the magistrates' courts—and in Scotland this matter will be handled through solicitors—will go a long way to meet the point made by the hon. Gentleman, who has taken an intense personal interest in this matter.
  Mr. Longden: Is my right hon. Friend aware that, although these arrangements look well on paper, they are not working in practice? A large number of families are being maintained by the State simply because the breadwinner cannot—or will not—be traced?
  The Prime Minister: It is possible that there are cases in which, even with the use of all the available machinery it is not possible to trace the persons concerned, which I regret. On the other hand, we are going to the utmost lengths to enable people to be traced without giving away confidential information. From recent events which we discussed in the House last Tuesday, it must be apparent to all that there is a delicate dividing line between the provision of the information which will allow these problems to be dealt with and the withholding of information, in circumstances in which it would be quite wrong for personal details to be made available.

  ARMS SALES (DEPARTMENTAL CO-ORDINATION)
  Rear-Admiral Morgan-Gilesasked the Prime Minister whether he is satisfied with the co-ordination between the Secretaries of State for Foreign and Commonwealth Affairs, for Defence, and for Trade and Industry on the promotion of arms sales overseas; and what changes have been made in the procedures since 18th June, 1970.
  Mr. John Hallasked the Prime Minister whether he is satisfied with the co-ordination between the Secretaries of State for Foreign and Commonwealth Affairs, for Defence and for Trade and Industry on the promotion of arms sales overseas; and what changes have been made in the procedures since 18th June, 1970.
  Sir F. Bennettasked the Prime Minister whether he is satisfied with the co-ordination between the Secretaries of State for Foreign and Commonwealth Affairs, for Defence and for Trade and Industry on the promotion of arms sales overseas; and what changes have been made in the procedures since 18th June, 1970.
  Mr. Biggs-Davisonasked the Prime Minister whether he is satisfied with the co-ordination between the Secretaries of State for Foreign and Commonwealth Affairs, for Defence and for Trade and Industry on the promotion of arms sales overseas; and what changes have been made in the procedures since 18th June, 1970.
  The Prime Minister: With the dissolution of the Ministry of Aviation Supply on 1st May the whole Defence Sales Organisation now comes under my right hon. and noble Friend the Secretary of State for Defence. There is close coordination between all Departments concerned with the promotion of arms sales overseas.
  Rear-Admiral Morgan-Giles: Under the new organisation, will there be an identifiable individual arms salesman, as there was under the previous Government, and will this organisation promote the sales of private designs such as the Vosper Thorneycroft corvette in addition to sales of standard British Service equipment?
  The Prime Minister: What is important is the actual organisation itself within the Ministry of Defence and not a particular person being named to carry it out. Government Departments will give every assistance to our own manufacturers in sales of weapons.
  Sir F. Bennett: Could my right hon. Friend assure the House that under the new arrangement there will at least be no repetition of the squalid plot and
  618
  counterplot that took place under the previous Administration in this field of Government activity, as revealed in Lord George-Brown's memoirs?
  The Prime Minister: These matters are best left to the memoirs.

  PRESIDENT OF FRANCE (PRIME MINISTER'S MEETING)
  Mr. Bruce-Gardyneasked the Prime Minister if he will now invite the President of France to visit London, or, alternatively, if he will seek an early opportunity to visit the President in Paris.
  The Prime Minister: I look forward to meeting President Pompidou in Paris on 20th and 21st May.
  Mr. Bruce-Gardyne: I am sure all Members on all sides will wish god-speed to my right hon. Friend on a mission which could be of decisive importance for the future of Western Europe for the next 50 years. Will he take the occasion to point out to the President of France that the achievement of a European Europe must lie in the enlargement of the Community and that if the present negotiations were by any disaster allowed to fail, hopes of achieving independence for Western Europe in political, commercial and military matters might be put off for a decade or even for good?
  The Prime Minister: I think I know what my hon. Friend meant. I hope that he also wishes me a fair voyage and a happy return. On his general thesis, we are in agreement.
  Mr. Alfred Morris: Leaving aside the religious fervour of the hon. Member for South Angus (Mr. Bruce-Gardyne), will the Prime Minister put it to the President of France that vague assurances about Commonwealth sugar are no substitute for guaranteed and quantified access? Is he aware that in this House, as outside it, there is a growing sense of being betrayed?
  The Prime Minister: I cannot agree with the last sentence of the hon. Gentleman's remarks. What is important is that when the Community gives firm assurances we ourselves will be able to implement these as a member—
  Mr. John Mendelson: Too late.
  The Prime Minister: It is not in any way too late because the Commonwealth Sugar Agreement runs until 1974 by which time, if the negotiations are successful, we shall have been a member of the Community for more than a year. Therefore, this is the most firm assurance which we ourselves will be in a position to implement.
  Mr. Adley: When the Prime Minister meets the President of France, will he ask whether he enjoyed his flight in Concorde?
  The Prime Minister: I am quite prepared to discuss the future of Concorde with the President.
  Mr. Harold Wilson: Although the House has not had a chance to study what has come out of Brussels and has not had a report from the Chancellor of the Duchy of Lancaster, is the Prime Minister saying that his interpretation of the Brussels undertaking—that the Community will look at the matter with a "full heart", or whatever the phrase was—means that we can insist that the 1974 arrangements be continued? But would such continuance be subject to veto by any one country?
  The Prime Minister: I think the right hon. Gentleman has not been exact in his quotation of the phrase used, but my right hon. and learned Friend will be reporting fully to the House on Monday and will give all the details. I am saying that we shall have our full rights in the Community. This would include the right of veto in the last resort. Obviously, sugar would then be a matter for negotiation within the Community, not only in relation to the Commonwealth Sugar Agreement but also to associated States which have sugar interests. We ourselves negotiated on a "rolling basis" up to 1974, as the right hon. Gentleman knows, because the previous Administration concluded the Commonwealth Sugar Agreement. The Agreement has always been a matter of negotiation between ourselves and the countries concerned which are members of it; and in future, too, sugar will be a matter for negotiation
  Mr. Harold Wilson: Perhaps the right hon. Gentleman misheard me when I referred to a veto. I was not concerned whether Britain would have a veto, but if
  620
  it is a question of continuing arrangements beyond 1974, with the assent that is required of the Six, would any one country of the Six or of the enlarged Community be able to veto any proposal we made to extend the arrangements?
  The Prime Minister: The Community itself has given this undertaking that the arrangements will be made. This is the purpose of the undertaking. In any case, my right hon. Friend is under an obligation to consult the sugar-producing countries about the undertaking he received.

QUESTIONS TO MINISTERS
Mr. Harold Wilson: On a point of order, Mr. Speaker. I am sorry to have to raise this matter. When you suspended the sitting you, as I understand it, told the House you were so advised and, so far as I am aware, this is in full consonance with the Standing Orders governing the business of the House. I wanted to ask you whether, in your consideration of this matter, which you said should be considered further even if it means changing the Standing Order, you are aware that at least on one past occasion your predecessor, finding that the earlier Questions had folded up, asked the leave of the House to start Questions to the Prime Minister before 3.15. Without impugning your decision, which is covered by the Standing Order, will you take that precedent into account?
Mr. Speaker: I was advised that I had no power to do that and that any attempt on my part to do so would be in breach of the Standing Order, with or without the leave of the House. But it is a matter which requires consideration.
Mr. McMaster: Further to that point of order, Mr. Speaker. At five minutes past three, when you decided to suspend the sitting, I was in fact on my feet endeavouring to catch your eye in order to ask a supplementary question arising out of Question No. 33. Question Time is extremely valuable to hon. Members who wish to probe Ministerial decisions. Is it in accordance with precedent that a sitting should be suspended when an hon. Member is on his feet endeavouring to catch your eye?
Mr. Speaker: I do not think that there is much precedent governing the situation. That is one of the reasons why I suspended the sitting when I did. In any event, the calling of hon. Members is a matter for the Chair's discretion.
Mr. James Hamilton: On a point of order. When the sitting resumed for Prime Minister's Questions, it was very noticeable that Questions Q4, Q5, Q10 and Q11 were identical in almost every respect. Is not that an abuse of the period for Questions to the Prime Minister, since it is extremely unfair to back-bench hon. Members and, on this occasion, was obviously organised by the Government Whips?
Mr. Speaker: There are many precedents. The hon. Gentleman's right hon. and hon. Friends have acted similarly on previous occasions. However, the Chair has a remedy. It need not necessarily call every hon. Member with a Question to put a supplementary question, nor did I.
Sir F. Bennett: On the same point of order, Mr. Speaker. I am glad that you have made that point. You will recall that there have been at least seven occasions when a similar state of affairs has arisen among right hon. and hon. Members on the benches opposite. On one of those occasions, there were not four but five identical Questions.
Mr. Speaker: That is interesting.
Dame Irene Ward: Further to that point of order. In view of the fact that Question No. 33 was my own, will you bear in mind in future that I could ask 10 supplementaries on it?
Mr. Speaker: I am not sure whether that is an inducement or a deterrent.

KENT (IMPORTED CHERRIES)
Mr. John Wells Mr. John Wells (by Private Notice) asked the Minister of Agriculture, Fisheries and Food why 200 tons of Italian cherries are to be allowed to come to Hither Green for plant health examination, when this crop has been banned for the past two years on account of fruit fly.
The Minister of Agriculture, Fisheries and Food (Mr. James Prior): Because of
622
the risk of introducing cherry fruit fly plant health import regulations currently prohibit the importation of raw cherries from the whole of Italy after 31st May. My scientific advisers are satisfied that in certain areas in Northern Italy control measures now in operation justify allowing trial consignments from these areas under special licence to arrive after that date. These consignments which must arrive in this country before 15th June will be carefully examined by my inspectors before being released for distribution.
Mr. Wells: Is my right hon. Friend aware that the Italians are extremely lax in their spraying programmes and, therefore, that this fruit must be highly suspect? It could have been examined cheaply and conveniently either at the port of entry or in Italy, and not brought to Hither Green, passing through the heart of the best cherry growing land in England. Is this is an example of my right hon. Friend bending over backwards to be a good European, thereby disregarding the interests of British horticulture? Furthermore, what has happened to all the assurances that the British agriculture plant health inspectors were to outsmart the continentals? We seem to have been outsmarted before we have begun.
Mr. Prior: This is an example of my hon. Friend's capacity for exaggeration. In so far as these bugs are to be allowed in—the fruit will be carefully inspected—they will not come as flies but as larvae, so that they cannot do any damage on the way through the cherry orchards of Kent. There will be a very careful examination. These are trials only. My scientific advisers went over this time last year to Italy to see whether the Italians were conforming with plant health regulations. They are doing so and I therefore have no power to stop the fruit from coming.
Mr. English: Is there not a serious point involved here? When the Treaty of Rome says that, even if one is a member of the Economic Community, one can still prohibit the import of any item if it contravenes health regulations, does that apply only to the health of human beings, or does it apply to diseases of plants and animals?
Mr. Prior: That is a slightly different question. Plant health controls in this country have been justified under the 1951 International Plant Protection Convention. There are draft directives on plant health controls within the Common Market, but they have not yet come into operation.
Mr. William Hamilton: Since British housewives will find it difficult to shop around in Rome or Florence, is not it better for the Italian cherries to be brought here, especially in view of the fact that the Government believe in competition?
Mr. Prior: Provided that these cherries are not bug-ridden when they arrive, I think that they are of advantage to the British housewife.

BUSINESS OF THE HOUSE
Mr. Harold Wilson: May I ask the Leader of the House to state the business for next week?
The Lord President of the Council and Leader of the House of Commons (Mr. William Whitelaw): Yes, Sir. The business for next week will be as follows:
MONDAY, 17TH MAY—Supply (19th allotted day): There will be a debate on Consumer Protection, which will arise on an Opposition Motion.
Motion relating to The Intermediate Areas Order.
At Seven o'clock, the Chairman of Ways and Means has named Opposed Private Business for consideration.
TUESDAY, 18TH MAY—Committee stage of the Finance Bill.
WEDNESDAY, 19TH MAY—A debate will take place on the White Paper on Local Government in England. Command No. 4584.
Remaining stages of the Sheriff Courts (Scotland) Bill and of the Shipbuilding Industry Bill.
THURSDAY, 20TH MAY—Committee stage of the Finance Bill.
FRIDAY, 21ST MAY—Private Members' Motions.
MONDAY, 24TH MAY—Supply (20th allotted day): There will be a debate on an Opposition Motion relating to steel.
624
Sir, the House will wish to know that it is intended to propose that we should rise for the Whitsun Adjournment on Friday, 28th May, until Tuesday, 8th June.
Mr. Harold Wilson: With regard to Monday's debate, is the right hon. Gentleman aware that, for the convenience of the House, we shall table the Motion today which will be debated on Monday? It will call attention to the decision of the House unanimously to reconstitute the consumer protection machinery and to insist that the Government now act in accordance with the Motion moved last Monday by my hon. Friend the Member for Norwich, North (Mr. Wallace), since we should not want anyone to think that right hon. and hon. Gentlemen opposite only supported it before the municipal elections and have changed their minds since.
With regard to the debate the following Monday on the steel industry, is the right hon. Gentleman aware that his right hon. Friend the Secretary of State for Trade and Industry announced several weeks ago that he would be making a statement on reorganisation, and that the time that the right hon. Gentleman promised that by has now passed? Will the Leader of the House urge his right hon. Friend to make a statement on reorganisation in advance of the debate on Monday week so that we know the Government's policy on what we are debating, rather than have it announced afterwards?
Mr. Whitelaw: I note that the right hon. Gentleman and his right hon. and hon. Friends will be tabling a Motion on consumer protection which will be debated on Monday, when all the matters that he has referred to can be discussed.
As for the Supply Day on steel, I will call the attention of my right hon. Friend the Secretary of State for Trade and Industry to what the right hon. Gentleman has said, but I cannot give any commitment in that sense.
Sir H. Legge-Bourke: Will my right hon. Friend bear in mind that a number of hon. Members on both sides of the House have, over past months, been pressing him for a debate on the Report on defence research from the Select Committee on Science and Technology? Since completing that exercise, we have the new Government White Paper on

625
Defence Procurement. May we have an indication of the Government's plan for debating both documents?
Mr. Whitelaw: I have been pressed on a number of occasions in the past to see whether it was possible to have a debate. I note the added importance of what my hon. Friend has said.
Mr. Milne: Is the right hon. Gentleman aware that a statement by our negotiator in Europe next Monday is not sufficient, in the light of the reports which have been emerging from the negotiations? Will the right hon. Gentleman take note of the fact that, despite the euphoria in the Press and the discussion by the Press on the Common Market negotiations, this House is entitled to take part in the great debate on whether we should go into Europe? Will the right hon. Gentleman look closely at the fact that, if we cannot have a debate next week, certainly we should have one in the immediate future, since it appears as though the interests of the Commonwealth, of E.F.T.A. and of the British people are being sold down the river at the moment?
Mr. Whitelaw: Without agreeing with some of the hon. Gentleman's deductions, which are not for me in questions on the business statement, the Government have promised that, on every occasion that my right hon. Friend the Chancellor of the Duchy of Lancaster returns from negotiations in Europe, he will report to the House at the earliest opportunity. My right hon. Friend is attending another meeting for the rest of the week. Therefore, he will report to the House at the earliest opportunity, on Monday. I think that it is right to await my right hon. Friend's statement in the first instance.
Sir D. Renton: Am I to understand that the debate on local government reorganisation will be on a Motion merely to take note of the White Paper and not to approve it at that stage?
Mr. Whitelaw: I think that the House will wish at this stage to have a preliminary debate on this subject. That is the purpose of the debate next week. I am prepared to consider through the usual channels how best the debate should be mounted, but I think, on balance, that to take note of it is probably the right course.
Sir G. de Freitas: With regard to the steel debate, will the Leader of the House impress upon his right hon. friend the Secretary of State that, in fairness to right hon. and hon. Members who represent steel constituencies, a statement must be made before the debate?
Mr. Whitelaw: As I told the Leader of the Opposition, I have noted the wish expressed in this regard. Obviously I cannot commit my right hon. Friend the Secretary of State, but I shall pass these views to him and see that he is made fully aware of them.
Mr. Gorst: Has my right hon. Friend seen Early Day Motion No. 553 on the subject of televising the proceedings of the House? Has he also noted that more than 110 hon. Members from all sides of the House have given it their support? Can my right hon. Friend say whether it is possible to find time for a debate before the Whitsun Recess?
[That this House favours the experimental televising of its proceedings on closed circuit for a period of six months.]
Mr. Whitelaw: As my hon. Friend will know, this matter was debated in the last Parliament and, by what was described as "the narrowest possible majority", was rejected. I have always believed that a new Parliament should have an opportunity to debate this subject at the appropriate time and to come to a decision on it again. I have also felt, and I believe that it is a view which is widely shared, that a new Parliament with a large number of hon. Members new to the House should have considerable time to consider all the aspects before having such a debate. It is impossible to decide now when the right moment for such a debate would be. I think that it is still too early. Certainly it would be too early before the Whitsun Recess.
Mr. John Mendelson: In view of the extraordinary constitutional importance of the Common Market negotiations, will the Leader of the House accept that the Government should seek the opinion and advice of the House of Commons before finally committing themselves as a Government to any set of proposals which might emerge? While normally the House would agree that any negotiation on an ordinary treaty should continue to

627
its end, with the Government then presenting the treaty for ratification, in view of the importance of these negotiations, I urge the right hon. Gentleman to arrange a two-day debate prior to the Chancellor of the Duchy of Lancaster finally committing his Government to a set of proposals at the end of these negotiations.
Mr. Whitelaw: I have nothing to add to what has been said on the subject.
Mr. Harold Wilson: Has not the right hon. Gentleman said that the Government intend to have a broad debate on a take-note Motion when the White Paper of the proposed terms is available, before any decision is taken? Will he bear in mind—and I am not sure whether this is what my hon. Friend is asking for—that in view of the practice of apparently settling one or two issues at a time and announcing acceptance it might be fruitful if there were talks, through the usual channels about a possible debate not on a White Paper but in advance of the next series of negotiations in Brussels? Will the right hon. Gentleman undertake to give consideration to that?
Mr. Whitelaw: Yes, Sir, most certainly. I am prepared to have discussions through the usual channels on exactly how the matter should be handled to the best advantage of the House as a whole during all the preceding arrangements. Whatever may happen, I am most anxious to see that the House has the proper arrangements for debating these questions.
Mr. Chapman: Bearing in mind the recent instances of the destruction of so many buildings of architectural interest, highlighting and publicising a continuing disgraceful trend, and in view of the deep anxiety and bitterness felt by so many people, will my right hon. Friend arrange to have a short debate immediately after, if not before, the Whitsun Recess?
Mr. Whitelaw: I recognise some of the anxieties to which my hon. Friend refers, but I cannot offer time for a debate on the subject in the near future.
Mr. Ford: When does the Leader of the House intend to announce the composition of the Boyle Committee?
Mr. Whitelaw: As soon as possible, Sir.
Mr. Raison: Will my right hon. Friend find time for a debate on the important first Report of the Hospital Advisory Service?
Mr. Whitelaw: I recognise the importance of the Report. It is obviously one which right hon. and hon. Members will wish to consider carefully. Therefore, I cannot promise time for a debate at this stage.
Mr. Leadbitter: The Leader of the House has quite rightly helped us considerably with the debate on steel. A number of hon. Members have signed my Motion on the subject.
[That this House deplores the effect of Her Majesty's Government's policies and attitudes which are damaging the long-term development plans of the British Steel Corporation; asserts that the increasing levels of redundancy in the industry are unacceptable; declares that the lowest level of steel production for eight years could have been avoided; protests that Government interference on steel prices and public utterances of non-intervention are contradictory postures frustrating the good management of the industry and its production potential; regrets that no steps have been taken to reduce the importation of steel and steel pipes; objects to announcements of closures and redundancies in breach of assurances of prior consultation or without any statement in the House of Commons; and draws attention to the lack of Government policy to change the course of events in the steel industry at a time when the unemployment figures in the country have reached the highest level in 30 years.]
The statement about the deep-seated study by the Secretary of State concerns us. Therefore, in addition to assuring the House that he will convey our feeling on the matter to his right hon. Friend, while saying that he cannot commit his right hon. Friend, will the right hon. Gentleman take note that, if the Secretary of State makes a statement on the day of the debate after the warning today, that will be construed as having led the House into a situation where it cannot be prepared adequately to debate this serious matter? Therefore, will he indicate next week either to the House or through the usual channels whether the Secretary of State can make a statement?
Mr. Whitelaw: The hon. Gentleman has asked me to take note of his view. I know his interest in the matter, and certainly will take note of it. But he went on to draw from that various deductions and views as to what would or would not be suitable. I shall take note of that as well, without necessarily agreeing with the hon. Gentleman.
Mr. Marten: Further to the point raised by the Leader of the Opposition about a debate on specific items in the Common Market negotiations, my right hon. Friend will have observed with deep interest the reported—I repeat "reported"—terms of the sugar deal in those negotiations. Therefore, will he consider the excellent Motion signed by many hon. Members, including the right hon. Member for Kettering (Sir G. de Freitas), which demands firm assurances as a prerequisite for entry?
[That this House, while recognising that the six European Economic Community countries have a large surplus of sugar beet, realises also that all the developing Commonwealth sugar-producing countries are overwhelmingly dependent on the existing Commonwealth Sugar Agreement with the United Kingdom, both as to quantity and price, since they can neither significantly diversify their product nor their market; and therefore urges Her Majesty's Government to ensure that their unique situation is safeguarded during the current negotiations to join the European Economic Community as a pre-condition of entry.]
That would be a very good Motion for debate.
Mr. Whitelaw: I do not at this stage wish to go any further than what I said in reply to the Leader of the Opposition. I am prepared to discuss all these mattres through the usual channels. As to what has been reported on all these questions, hon. Members will obivously wish to await the statement of my right hon. and learned Friend the Chancellor of the Duchy of Lancaster on Monday, and thereafter to see what they feel.
Mr. Dalyell: The right hon. Gentleman yesterday gave us a very satisfactory, though interim, reply on the question of the system of the allocation of Gallery tickets. Will he refer the matter to the Services Committee? If so, when?
Mr. Whitelaw: I made two points to the hon. Gentleman yesterday in answering his Question. One was that if there were a widespread desire in the House that I should do so, I should, of course, refer the matter to the Services Committee. Second, I said that much of the remedy for the empty seats in the Gallery at Question Time lay in the hands of right hon. and hon. Members, in that if they were not using their admission orders they could return them to the Admission Order Office. I should like an opportunity to be given to see whether right hon. and hon. Members respond to that suggestion before I go any further with the matter. If they do not, and if the situation remains unsatisfactory, certainly I am prepared that the Services Committee should consider it. But even if it does, it cannot overcome the situation if hon. Members put the tickets in their pockets and do not hand them on when they are not using them.
Mr. Rost: When will my right hon. Friend hind time to debate the White Paper on commercial radio? When will he be able to announce the Government's legislative programme, bearing in mind the uncertainty in the forward planning necessary within the industry so that it can prepare itself for a smooth start to commercial radio?
Mr. Whitelaw: I cannot say when this will take place. I note its importance, and I hope that it will be fairly soon. I cannot give any indication at this stage.
Mr. Arthur Lewis: The Leader of the House in answer to a question referred to the statements being made in Brussels by the Chancellor of the Duchy of Lancaster. As we know, in all these negotiations the right hon. and learned Gentleman gives Press conferences, makes radio broadcasts to this country, and takes part in discussion on the B.B.C. Does not the Leader of the House think that he and the Government owe it to the House to see that statements are made to the House on the same day or the day after the statements are made to Press correspondents? If the Chancellor of the Duchy of Lancaster cannot do it, one of the Foreign Office Ministers should come here the day after the right hon. and learned Gentleman has made his statement in Brussels to keep the

631
House informed. Why should the general public be informed, and not the House of Commons?
Mr. Whitelaw: My answer to the hon. Gentleman's first point is that I must have been even less clear in my expression than usual, because I was referring to statements by my right hon. and learned Friend in the House. As far as I know, I made no reference to his statements in Brussels. The hon. Gentleman suggested that I had made such a reference. If he reads HANSARD tomorrow he will find that is what he said. I have always made it clear that my right hon. and learned Friend would make statements in the House at the earliest possible moment after he returned. I believe that is what hon. Members wish, and it is what they have had on every occasion. It was made perfectly clear to the House on this occasion that he was going on to another meeting and therefore the earliest available opportunity would be on Monday. That is why my right hon. and learned Friend will make a statement on Monday, and I think that that is generally satisfactory to the House as a whole.
Several Hon. Members rose—
Mr. Speaker: Order I can allow two more questions from hon. Members who have already risen.
Mr. Hugh Jenkins: The Leader of the House will have noted Motion No. 539, on the value-added tax on food, in the name of my hon. Friend the Member for Bristol, Central (Mr. Palmer).
[That this House, noting that the Chancellor of the Exchequer has announced that it is Her Majesty's Government's intention to introduce, independently of Great Britain's application to become a member of the European Economic Community, a value-added tax in 1973, and further noting that if this tax were to be applied to foodstuffs it would represent a major switch in fiscal policy which would have grave adverse effects on the living standards of the British people,
632
especially the old, the sick and the lower-paid, therefore asks Her Majesty's Government for a categorical assurance that the value-added tax will not be applied to food.]
Is it the right hon. Gentleman's view that the impact of value-added tax should be taken into consideration in a debate upon the Common Market of the sort suggested by my right hon. Friend the Leader of the Opposition? Could that debate be so framed as to embrace that possibility?
Mr. Whitelaw: It is very dangerous for me to express my view on what may or may not be debatable in a particular debate. It is not for me to do so. Therefore, my view is of no more and no less value that that of any other right hon. or hon. Member. I would only say that if such debates take place on wide-ranging Motions it is inevitable that most of these matters can he discussed.
Mr. English: Will the right hon. Gentleman bear in mind, on the question of broadcasting the proceedings of the House, that the House has already had a closed-circuit experiment on radio broadcasting, and that there is a great deal to be said for the House removing the ban on radio broadcasting of its proceedings as a stage on the way—or not on the way, as the case may be—to a partial solution to some of the problems of broadcasting the proceedings in other manners also?
Mr. Whitelaw: I note what the hon. Gentleman says. All these questions are very much a matter for the House as a whole to consider and decide as it thinks best. I am absolutely in the hands of the House in this matter. When there is a strong feeling throughout the House that the time has come to debate these matters and to decide what further course we should take, naturally I should be only too ready to provide time. I have not yet heard that very widespread desire, although, of course, I have noted the Motion signed by a large number of hon. Members.

ORDERS OF THE DAY

  ARMED FORCES (recommitted) BILL [Lords]
  Considered in Committee, as amended in the Select Committee.
  [Sir ROBERT GRANT-FERRIS in the Chair]
  4.0 p.m.
  Mr. George Thomson: On a point of order, Sir Robert. I seek your advice and guidance, as the guardian of the rights and interests of the members of the Committee. We are about to engage in a discussion based on a report of the Select Committee on the Armed Forces Bill. I am sure that the Committee is grateful for the work which our colleagues did on the Select Committee. They had 11 sessions and produced a report of about 180 pages. I complain, Sir Robert, that the Government did not place this report in the Vote Office until Tuesday night. I do not think that this gives the House and the Committee adequate time to consider this interesting and important report, a report which is only before us once every five years. That is my point of order.
  I should add that we are not helped by the singularly clumsy way in which the Government, from the beginning, have handled the Bill. They thought best to introduce it in the House of Lords to begin with, and then thought that they had made a mistake. It is unfortunate that, now we have reached the Committee stage, we had a very short time to consider the report before putting down Amendments.
  The Chairman: I am obliged to the right hon. Gentleman for drawing the attention of Mr. Speaker to the point he wished to raise. Mr. Speaker has asked me to deal with it as it was being raised about business in Committee. In so far as that was a point of order, I am satisfied that all possible steps were taken to produce the report in as short a time as possible. The facts about that are not, strictly, a matter of order.
  The Lord President of the Council and Leader of the House of Commons (Mr. William Whitelaw): In answer to the right hon. Gentleman, may I say that I
  634
  respect his view. In view of the shortness of this time, I took special care to make sure that this matter was discussed and that consideration was given to it. I was given to understand that this was accepted by the party opposite, and it was only on that basis that I was prepared to proceed.
  Clauses 1 to 7 ordered to stand part of the Bill.

  Clause 8

    INSUBORDINATE BEHAVIOUR, AND DISOBEDIENCE TO LAWFUL COMMANDS
    The Under-Secretary of State for Defence for the Royal Air Force (Mr. Antony Lambton): I beg to move, Amendment No. 1, in page 8, line 37, at beginning insert:
    (1) Section 33 of the Army Act, 1955, and section 33 of the Air Force Act, 1955 (insubordinate behaviour) shall each be amended by substituting the following for the proviso to subsection (1) (which limits imprisonment to two years for offences not committed on active service and not involving violence)—
    'Provided that it shall be a defence for any person charged under this subsection to prove that he neither knew nor had reasonable cause to believe that the person in relation to whom the offence is alleged to have been committed was his superior officer.'
    With the consent of the Committee and for its convenience; I propose to discuss this Amendment to Clause 8, with Amendment No. 2, in page 9, line 3, leave out from first 'provisions' to 'shall' in line 5. The Clause was amended by the Select Committee, which took evidence on it and decided that while it was acceptable to retain a specific offence of behaving with contempt to a superior officer—
    The Chairman: Order. I am sorry to interrupt the Under-Secretary. As I have not selected the two Amendments to Clause 8 to be taken together, I think perhaps I should have the leave of the House to take them together. If that is the wish of the Committee, it is agreeable to me.
    Mr. George Thomson Mr. George Thomson indicated assent.
    Mr. Lambton: Thank you, Sir Robert. The Select Committee decided that while it was acceptable to retain a specific offence of behaving with contempt to a superior officer in the Naval Discipline

    635
    Act, where it has featured, I think, for over 200 years, it was not desirable to include such a specific offence in the Army and Air Force Acts, which have never had it.
    This would, of course, be an exception to the commonality of the scheme of offences, but we do not object to it on this score. After all, contempt to a superior officer has always been an offence in all three Services and, under whatever name it is called, it will continue to be so. The only difference is that whereas such an offence in the Navy is charged under a specific section of the Naval Discipline Act, in the Army and the R.A.F. it is charged as the more general offence of conduct to the prejudice of good order and military discipline.
    The Clause in its present form is, however, defective. Firstly, the loss of the original Clause 8(1)(b) has the effect of retaining differential levels of maximum punishment for offences of insubordinate behaviour in Army and Air Force Acts, according to whether or not offences are committed on active service or involve violence. There is no such differentiation under the Naval Disclipline Act and the present Bill abolishes it elsewhere in Army and Air Force Acts. This is an inconsistency which, in our view, and, I hope, in that of the Committee, ought to be removed.
    Secondly, there will be available to a person charged with an offence of insubordinate behaviour under the Naval Discipline Act a defence that he neither knew nor had reasonable cause to believe that the person in relation to whom the offence is alleged to have been committed was his superior officer, but no such defence will be available under the Army and Air Force Acts. Again, I hope that the House will agree that this defence must and should be available to all Servicemen who are so charged.
    The Amendment removes these two differences. It also corrects minor deficiencies in the wording of the Clause and of Schedule 1.
    Mr. James Wellbeloved: I support the Amendment. This is due primarily to the width of the Amendment that I proposed in Committee to prevent the crime of contempt
    636
    in the Royal Navy from being extended to the R.A.F. and the Army. I take exception to the views expressed by the Under-Secretary in one respect. He implied that the offence of contempt in respect of seamen in the Royal Navy was acceptable. He will recall that this was contested in Committee, and, though we did not divide, it is my view that, when we next have an Armed Forces Bill in five years' time, we will have to consider very seriously the retention of this rather old, out-dated offence in the Royal Navy. With that due notice that it will be my intention, if I am a Member of the House, so to do, I support the Amendment.
    Mr. John Morris: The reason for the Under-Secretary having to introduce the Amendment is the success of my hon. Friend the member for Erith and Crayford (Mr. Wellbeloved) in ensuring that the offence of contempt, as set out in the original Clause 8, was not extended to the other two Services. I confirm that there was and is dissatisfaction that this power should remain with the Navy. I am conscious that the Navy prefers to do things in its own way, and the same applies to the other Armed Services.
    The whole purpose of the Bill, as I understand it, and of the reasoning behind the observations of the last Select Committee is that each of the Services should as best it can rationalise with the other Services. If each of the three Services had not done that in respect of the matters dealt with in the various Clauses, we would not have achieved the result that has been achieved. It is a matter of congratulation that each of the Services has gone this far. Each Service has had its sticking points. It was not always reason that lay behind the points sticking; sometimes it was tradition. I appreciate the tradition which lies behind many of these matters which, in the words of the witness for the Air Force, were dear to the hearts of that Service.
    My hon. Friend has rightly said that in due course—I hope when the next Bill is considered—this matter will again come up. By that time the Navy will realise that the other Services can deal wifh their discipline under more general provisions and that their discipline does not suffer because they do not have the advantage

    637
    of this provision. It may well be that in due course the Navy will recognise the reality and not wish to plough its own furrow.
    Mr. Lambton: I thank the right hon. Member for Aberavon (Mr. John Morris) and the hon. Member for Erith and Cray-ford (Mr. Wellbeloved) for their reasoned speeches. This matter of contempt will, in the nature of events, be considered before the next Bill is presented in five years' time.
    Amendment agreed to.
    Further Amendment made: No. 2, in page 9, line 3, leave out from first 'provisions' to 'shall' in line 5.—[Mr. Lambton.]
    Clause 8, as amended, ordered to stand part of the Bill.
    The Chairman: With the permission of the Committee, I will put en bloc—if anyone demurs I will of course listen to him at once—Clauses 9 to 46.
    Clauses 9 to 46 ordered to stand part of the Bill.

  Clause 47

    AMENDMENTS AS TO SUMMARY TRIAL FOR NAVAL OFFENCES
    Question proposed, That the Clause stand part of the Bill.
    The Chairman: I should explain to the right hon. Member for Dundee, East (Mr. George Thomson) that I have not selected Amendment No. 3 which stands in his name—in page 38, line 4, leave out Clause 47—but the substance of that Amendment is covered in the main debate on the Clause, in which it will be in order to discuss new Clause No. 1—Naval offences dealt with summarily.
    4.15 p.m.
    Mr. John Morris: As I understand it, Clause 47 is a tidying up operation. We have sought to continue this tidying up operation in the new Clause, the purpose of which is to carry on the good work of rationalising the Services one with another so far as is practicable. Much has been done over a wide front in the Ministry of Defence over some years. The former Secretary of State for War, who did some of this work, knows a great
    638
    deal about what was done. During our period of office, we continued this work and in many respects—victualling and furnishings, to name only two—we rationalise the Services one with another to save expenditure.
    The discipline of a ceiling expenditure concentrates the mind wonderfully with a view to seeing what can be done to rationalise one Service with another so as to save money.
    As regards discipline, there are respectable precedents for rationalising. The last Select Committee in 1962 suggested that henceforward when questions of discipline came before the House and the various pieces of legislation were examined the Naval Discipline Act should be reviewed at the same time as the Acts for the Army and the Air Force.
    Page 1 of the present Select Committee's report states that the last Select Committee
    "also recommended that the Ministry of Defence, with the aim of standardisation, should consider over the next five years what practical advantages and disadvantages stem from the differences in status between the 1955 and 1957 Acts. Clause 1 of the present Bill now seeks to bring the Navy into line with the other Services in this matter by subjecting the Naval Discipline Act to the same procedure for review and renewal as the Army and Air Force Acts."
    This is the highly respectable and historical precedent for rationalisation and for bringing the Navy into line with the other Services in regard to discipline as with many other matters where there is a cross-interest between the Services.
    The Select Committee went into considerable detail. I pay tribute to our Chairman for guiding us in our proceedings Clause by Clause. As I had not sat on a Select Committee for many years, I found very refreshing the method and speed with which we examined highly detailed matters and traversed a great deal of ground during our 11 sittings.
    One major issue which substantially divided the Select Committee was whether the Navy's existing summary powers should continue. Paragraph 8 of the report sets out the differences, in that the Navy can still deal summarily with all ratings for any offence other than the very few remaining offences punishable by death and can award up to three months imprisonment, detention or dismissal or derating, although most of these

    639
    punishments require the approval of the flag officer.
    In the Army and the Air Force commanding officers can deal with a somewhat lower range of offences and the maximum punishment they can award is 28 days detention. That is the basic difference between the Navy and the other two Services, and the Navy has possessed these substantially greater powers for a long time.
    I sympathised with the main argument which was canvassed by the Navy for the retention of these substantially greater powers. The Navy much more frequently than the other two Services operated in distant waters far from immediate administrative support and the whole paraphernalia of courts martial and references to high authority, and it was necessary in the interests of discipline to cut corners—I do not put that offensively; perhaps I should say that it was necessary to deal speedily with matters arising within the jurisdiction of a commanding officer on a vessel which might be hundreds, if not thousands, of miles from administrative support.
    By tradition the Royal Navy is a highly mobile force. In those circumstances, it was said that the Royal Navy's powers were necessary, and it wanted to retain them. I understand the reasoning behind the argument, but from time to time the other Services, too, though perhaps not on the same scale as the Royal Navy, have to operate without recourse to the administrative support which was regarded by the Royal Navy as the main reason for wanting these powers. There was no evidence before the Select Committee that, because the Navy's activities were far-flung, these increased powers were necessary.
    Bearing that in mind, the Select Committee examined with great care—I apologise to my colleagues on the Committee for the length of my cross-examination, but I was anxious to probe the matter in depth—the Navy's case for the retention of its increased powers.
    Rear-Admiral Morgan-Giles: The right hon. Gentleman keeps using the word "increased". I think that he means "different". I am sure that he would not wish to mislead the
    640
    Committee by suggesting that the Navy is asking for increased powers.
    Mr. Morris: I apologise to the Committee. I had no intention of making a false point. I was seeking to say that the power required by the Navy was in excess of that possessed by the other two Services. There was no claim by the Royal Navy that its powers should be increased. I apologise if that was the impression that I gave.
    The Navy's case is based on the fact that its activities are far-flung, and that it often operates outside immediate administrative support but, when one examines the facts, one finds that only 45 per cent. of the Royal Navy is at sea. The majority of Royal Navy personnel are serving at shore establishments, and no case can be made for saying that that component of the Royal Navy is outside the range of immediate administrative support. What is more, of that 45 per cent. at sea, I am not sure what percentage would be regarded as being outside immediate administrative support. That percentage would include vessels in ports, and vessels in home waters, so perhaps only a small proportion of that 45 per cent. could really be said to be outside immediate administrative support.
    That is the compass of the Navy's case for being singled out to be given powers in excess of those possessed by the other two Services. A minority of the Royal Navy is outside immediate administrative support, and for this small proportion it is considered necessary for the Navy to be given powers in excess of those exercised by the other two Services.
    The new Clause is sensible. I could have introduced a new Clause to bring the Royal Navy completely into line with the other two Services and let it deal with whatever problems arise in the same way as they are dealt with by the other two Services when they find themselves outside the range of immediate administrative support. We know from the evidence that we heard that personnel of the other Services often go on missions which put them outside immediate administrative support, but they are able to deal with any problems that arise, without any apparent difficulty.

    641
    But I have not sought to bring the Royal Navy completely into line with the other two Services. I have not sought to take an unreasonable attitude. What I have sought to do is to bring the Royal Navy generally into line with the other two Services, and to leave it to the Defence Council to decide when extra powers are needed. That power is given to the Defence Council so that while, in general, the Royal Navy will be in line with the other two Services, in circumstances in which the Defence Council, in its wisdom, considers that extra powers requested by the Royal Navy are necessary, it can authorise the use of those powers by means of a simple administrative order. The commanding officer can be authorised to use the powers which have been requested.
    Most of the arguments that have been raised against my proposal arise from my having taken a reasonable attitude. If I had suggested bringing the Royal Navy into line with the other two services in all respects, none of the arguments which have been canvassed would arise, because they all stem from administrative difficulties. Anyone who has served in the Ministry of Defence knows that there are administrative difficulties to be overcome in achieving most objectives, and that at the end of the day the Ministry of Defence is more willing than any other Department to ensure that the difficulties are surmounted and to deal with the problems that arise.
    What are the administrative difficulties? It is said, first, that there would be two systems of discipline for sailors. It is said that they would not know where they stood, that they would not know whether they could be dealt with by the commanding officer, or not. It is said that some sailors in a garrison town would be regarded as capable of being dealt with by the commanding officer, while others would not, and that if two sets of sailors were involved in a fracas, some could be dealt with by the commanding officer, and some could not.
    I am aware of that difficulty, but a similar problem arises and is overcome when Royal Marines go on board ships of the Royal Navy. They are then subject to the discipline of the Royal Navy, and no difficulty seems to arise from the fact that Royal Marines are subject to one discipline when they are on shore,
    642
    and another when they are on the high seas.
    The difficulty envisaged in dealing with sailors who are subject to two sets of discipline is, in certain circumstances, paralleled in civil life. Two persons, be they sailors, soldiers or civilians, can be dealt with in different ways. This situation arises nearly every day in the courts. If two people are charged with an offence that can be dealt with summarily, one may elect to be tried by a jury—which he is entitled to do in a number of circumstances—with the result that the other person, who may wish to be tried by the magistrates, nevertheless has to be tried at sessions. If a difficulty arises here, I am sure that if two sailors could be dealt with by different systems of discipline, it would not be beyond the wit of their lawyers and the Secretary of State to cope with this situation. If, today, in a garrison town, a soldier and sailor are joined in a charge after a fracas, the soldier can be dealt with by a court-martial and the sailor by his commanding officer. So the administrative difficulties have been exaggerated.
    4.30 p.m.
    One of the arguments against the amendment is that one is seeking to reduce the disparity between seagoing sailors and those ashore, but there is a policy of further aligning the Services, and these arguments cancel out. The weakest argument put forward by the Navy is that it would greatly increase the administrative burden, in that there would be a much greater number of courts-martial. An increase has been prophesied of from 60 to 500, but there has been no evidence for this mathematical projection. In 1970, the total number for the Army was a mere 1,900, so the total of 500 is difficult to accept.
    My Amendment would give rise to only a portion of that, because the Royal Navy would not be put on a par with the other two Services. If the other two Services find a need for courts-martial, the fact that courts-martial would arise in the Navy for similar offences is not in itself an argument against a common system.
    I was concerned at the policy of sentencing in the Armed Services and I called for papers and statistics. I am

    643
    grateful to those who spent a great deal of time preparing the evidence for our consideration. I was concerned that the number of sentences in the 28- to 90-days' bracket was much higher in every category of offence.
    It was suggested to the Committee that desertion was sui generis in the Royal Navy perhaps more than in the other Services. But the same trend was borne out in the other offences, in that there were many more sentences in the Navy in this bracket. In the Navy, the total of sentences up to 90 days for desertion was 47, in the Army it was three and in the Royal Air Force it was one. So the sheer numbers cause a great deal of concern.
    Although my Amendment was not acceptable to the Committee, it was this underlying concern which resulted in the Committee carrying the very important Amendment of the hon. and gallant Member for Aberdeenshire, West (Lieut.-Colonel Colin Mitchell). The report said:
    "Your Committee also consider that the whole purpose of Service detention and its implementation should be examined in view of the changed conditions in both modern Service life and the civilian environment."
    That was only one of the reasons why some of us voted for the hon. and gallant Member's Amendment.
    It might be argued that the figures for the other Forces are higher than for the Royal Navy for sentencing over 90 days, but the increased numbers, having regard to the sheer size of the other two Services, cannot be moved sideways. Because a naval commanding officer uses his powers to the extent that there are overwhelmingly larger numbers being sentenced to 90 days and under, the numbers in the other two Forces do not bear out the fear that the Navy is treating its men more leniently.
    If this were true, it could be proved statistically. I challenged one of the witnesses to assist the Committee on this, to ascertain whether this moving of the figures to the right could be explained in statistical terms. So far, no evidence has been forthcoming on this. I wish that it were: it would relieve me of a great deal of anxiety.
    From the offences set out here, one can see that the naval commanding officers enjoying these greater powers inflict a
    644
    far greater number of these punishments and this is not compensated for by the higher punishments imposed by the other two Services.
    In the course of the proceedings, we considered whether the powers enjoyed by the Royal Navy might be extended to the other two Services. We had the advantage of the assistance of the Vice-Judge Advocate General, speaking on behalf of the Navy. It is germane to consider the attitude of the other two Armed Services, as represented by their witnesses, about what would happen if the powers enjoyed by the Navy were given to the other two Services.
    In paragraph 722, the Vice-Judge Advocate General said:
    "The Judge Advocate General does not want to express an opinion of his own as to whether any such increase in powers of punishment is needed because he thinks that that is a question of policy for the Services and for this Committee, but he would wish to emphasise—the point has been made to some extent, but the Judge Advocate General wishes it to be voiced in his name—that if it were decided that there should be any significant increase in the powers of punishment of the Army and the Royal Air Force commanding officers, it would be indispensable to introduce adequate measures to safeguard the interests of the accused persons. The Judge Advocate General considers that those measures would have to cover the procedure to be followed by commanding officers when dealing with cases—such questions as whether the accused should be represented or advised—and whether some sort of formal record of the evidence should be kept which would be capable of scrutiny afterwards. There would have to be a proper provision as to procedure at that stage.
    Further, the Judge Advocate General considers that adequate facilities for reviewing cases after trial and possibly providing facilities for petitions or appeals would have to be considered. He suggests that it would be unacceptable simply to increase the powers of commanding officers without considering in detail the interests of those who would be brought within their net. Those are all matters which would require pretty careful consideration."
    At question 776 I asked:
    "Would the Judge Advocate General be satisfied to have for the Army the same kind of arrangements to look after the interests of the accused as exist in the Navy?"
    Dog does not eat dog. I received the answer:
    "I would hesitate to say anything in this room which would appear to be critical of the arrangements which exist in the Navy, but what the Judge Advocate General is uneasy about is that, so far as he understands the naval system, there does not appear to be any provision whereby the evidence which is

    645
    taken at summary hearings is recorded. He apprehends that there must be difficulty in knowing afterwards what has gone on and in conducting any review to cover the merits of the case."
    I asked:
    "Where does he lay the greatest stress—on recording the evidence or on ensuring that the accused is adequately protected and given the right legal advice?"
    I was told:
    "I think that he thinks that both are desirable."
    At question 778 I asked:
    As I understand it, the Judge Advocate General would not be satisfied if the arrangements which exist in the Navy, without criticising the Navy's arrangements, were to be introduced in the Army?"
    The answer was:
    "I do not think he would be very happy about it."
    That was the Judge Advocate General replying to questions from me during the hearing of the Committee. His answers were disquieting because, while he was obviously anxious not to tread on anybody's toes, it is clear that, although in the context of another Service, he would not want this sort of thing introduced into the Army. Indeed, I submit that it is out of the mouth of the Judge Advocate General and his representative that the Navy stands convicted in its desire to retain these extraordinary powers.
    The defence offered by the Navy for the retention of this system has been the same over the years. On this occasion Vice-Admiral Wildish said, in answer to question 735:
    "We must come back to the nature of our Service, which is very much more of a separated Service. Men who are separated from their families and homes are much more likely to come under some form of sentencing policy".
    The last argument seems to be that, because the Navy is somewhat different from the other two Services, it needs these extraordinary powers of sentencing.
    This type of argument has been traditional over the centuries. It has been adduced in the past by those who wanted to retain the status quo for sentencing, punishment and discipline in the Armed Forces. I will not weary the Committee by going over the utterances made through the centuries by Service people who have wanted to maintain the status quo.
    646
    Consider, for example, those who campaigned for the retention of flogging. Lord Palmerston, when Secretary of State for War—and he was Secretary of State for a very long time indeed—said in 1815 in defence of flogging that foreign soldiers serving in the British Army retreated more readily than British troops. Although they were as liable to be flogged as British soldiers, Portuguese and other foreign Service men were flogged less often because, in the view of Lord Palmerston, the English—I am pleased, being a Welshman, that he specifically referred to the English—like all soldiers from northern lands, were more likely to get drunk than men from southern nations and were, therefore, more liable to commit offences.
    The same argument is being used now, in a different context. Lord Palmerston had not changed his mind by 1827, when he was still Secretary of State for War. He said:
    "If the infliction of corporal punishment were abolished, it must be followed by the abolition of the Army itself, which, without it, will soon become the most dangerous establishment in the Empire."
    On that occasion, as on previous occasions when similar matters had been discussed, Lord Palmerston was accompanied and supported by many distinguished military gentlemen. I will not weary the Committee by naming them all. They all wanted to retain the status quo, including one General Duff, who declared that it was as easy to chain the north wind as to manage British soldiers without the aid of corporal punishment.
    The proposal which my hon, Friends are making at this stage is merely designed to bring the Services into line.
    4.45 p.m.
    Mr. James Ramsden: It was with clarity and force that the right hon. Member for Aberavon (Mr. John Morris) moved the new Clause. Hon. Members who had the privilege of serving on the Select Committee will be familiar with the arguments and background to the controversy over this issue. The liveliness with which the right hon. Gentleman puts these matters is welcome, and his concluding illustrations from history will have been new to the Committee.
    I do not propose to detain hon. Members at this stage and I will not, therefore,

    647
    attempt to refute or counter in detail the arguments, which the right hon. Gentleman adduced for what he wants to do, which I gather is to bring as nearly as possible into line the code of discipline of the three Services. My noble Friend will no doubt undertake the detailed refutation of that case, if he considers that course to be necessary.
    I will only give the background to the Committee's consideration of this issue and make some general observation about my approach to the question, an approach which, in the result, was shared by the majority of the Committee—dividing not, I am glad to say, quite along party lines. The right hon. Member for Aberavon will recall that he put the substance of his case in the form of an amendment to the Chairman's draft report, and this appears on page xviii, but the Committee, by a majority, rejected his view.
    This whole controversy about standardisation, both in the disciplinary and other spheres, is not new. As the right hon. Gentleman began his speech by saying, it started in my time, about 10 years ago, if not before, and it has been going on ever since. One cannot get away from the fact that one's approach to the central controversy depends very much on one's individual cast of mind. That produces two distinct sets of opinions. It is a difference of approach which is not confined to politicians. One is either a standardiser by inclination, an aligner, or a non-aligner, a non-standardiser. The right hon. Gentleman will have found in his time, as I found in mine, that this propensity to be one or the other exists as much among senior members of the Services and civil servants as among politicians.
    I tend to be, though not, I hope, as square as some of my predecessors to whom the right hon. Gentleman referred, a non-standardiser rather than a standardiser. It does not annoy me that there should be differences and idiosyncrasies peculiar to one or other of the Services. I tend to accept that they exist in a Service but that, if they work and the desired result is obtained, we should not get tremendously fussed about it.
    648
    Broadly speaking, the Committee, having given full consideration to the argument, so ably assisted by the right hon. Gentleman's cross-examination, came to the conclusion that the existing code of discipline, by and large, works for the Royal Navy and is justified by the rather different conditions in which it has to operate. While there is force in the right hon. Gentleman's arguments—taken one by one, they are not easy to counter—none the less the Committee felt that it worked and did not want to come down on the Royal Navy or on my hon. Friend's Department by recommending that there should be further changes.
    In inclining to this view I had the following consideration at the back of my mind. The Select Committee procedure is comparatively new. I think that this is the third Select Committee on the Army Act and on the other Acts. In some ways it is a help to the Services to have a five-yearly opportunity to revise their legislation and to bring improvements before the House for consideration. In some ways this is an advantage which other Departments of State do not share. It is quite different in some other spheres where Ministers who want to bring forward legislation cannot get a foot in the legislative door because there is always a queue of business waiting to come before the House. The Service Departments, under this procedure, get a five-yearly chance as of right.
    There may be a disadvantage accompanying this opportunity in that a Select Committee, meeting every five years, may almost feel obliged to make recommendations before the next Select Committee is formed. In that way it is possible to build up a rolling impetus towards change for the sake of change. That could operate to the disadvantage of the Services. It is not a bad thing to do what this year's Select Commitee did, namely, to say, "Let us stand back for a moment and consider whether all these changes are necessarily to the benefit of the Services themselves." We said to the Ministry of Defence, "We do not want to put pressure on you to go in for more changes and particularly more standardisation for the sake of standardisation." We may have been right or wrong. This,

    649
    at any rate, was the majority view of the Committee.
    That is really all that I wanted to say. However, as a postscript, I should refer to two matters mentioned by the right hon. Gentleman. He was perhaps a little misleading—quite unintentionally, I am sure—in his reference to the amendment moved by my hon. and gallant Friend the Member for Aberdeenshire, West (Lt.-Col. Colin Mitchell) which was accepted by the Committee. That amendment arose from the visits paid by the Committee to the two detention establishments at Portsmouth and Colchester, on which I do not intend to comment at length.
    Having seen those establishments and discussed various points arising from those visits, to an active mind accustomed to Service affairs, like that of my hon. and gallant Friend, a basic question which cannot fail to arise is: "What is all this about; what is the basic purpose of detention and punishment in relation to Service discipline?" Until one has answered that question, many of the subsidiary questions which arise can be misleading. In proposing the amendment, I am sure that my hon. and gallant Friend did not think that it would give rise to any change; nor was he wanting to generate any particular pressure for change. He was asking a fundamental question about the underlying philosophy of discipline in the Services. I think that it was more in that spirit than the way indicated by the right hon. Gentleman.
    Mr. John Morris: I certainly should not dissent from what the right hon. Gentleman has said about the motive of his hon. and gallant Friend in moving the amendment. But he will remember that there was no great discussion about this matter. It was done almost at the end of the meeting when we had considered the whole of these factors and deliberated on all the amendments. This was one consideration which was well in my mind and in the minds of some of my hon. Friends when we voted for it. It was a great pleasure to us that the amendment was carried.
    Mr. Ramsden: I accept that. It cropped up, as the right hon. Gentleman said, right at the end. Some Members of the Committee may have put different interpretations on it from others. I am
    650
    not prepared to argue about that. It is a pity that my hon. and gallant Friend is unable to be here this afternoon.
    I thought that the right hon. Gentleman gave a bit too much weight to the evidence of the Judge Advocate General. As a gloss on his speech, anybody who is interested ought to read with care the evidence of the commanding officers and the directors of personnel services of the three Services. I say this not out of any desire to be offensive, but because the right hon. Gentleman is a lawyer and Judge Advocates General are members of that cloth, too. I think that in these matters we should be guided by the layman as well as by the professional experts. On the whole, I am sure that it will be no surprise to the right hon. Gentleman to hear that I am against his argument. I hope that my hon. Friend will resist it.
    Mr. Richard Crawshaw: I did not support my right hon. Friend when the new Clause was moved in Committee. I have not changed my mind, despite a powerful speech by my right hon. Friend, who has put forward every possible argument for the new Clause.
    I hope that I do not come in the category which he has been reading out. I am not the kind of person who expects that discipline can be imposed only by having a man strung from the yardarm every morning before breakfast. However, I am against change merely for the sake of change.
    I have been honoured to serve on the Committee. It has been a most interesting Committee and all Members have sought to do what they thought best for the Armed Forces. There has been disagreement within the parties on different matters, and on a Bill of this nature that is how it should be.
    5.0 p.m.
    We have been given statistics which I shall not go into in support of my argument, because I believe that one can make them come to any conclusion one wishes. I am more concerned with what I feel are the realities of life in the Services. I want first to deal with the suggestion that there might be a double system in the Navy—for situations where the commanding officer has these powers and for situations where he does not. I

    651
    think that that is a non-starter. It would cause confusion. My right hon. Friend mentioned that soldiers are subject to naval discipline when serving on board ships, but that is something which is quite clear to them. It is not imposed upon them without their knowing that they are going to be subject to that sort of discipline. It would be most unfortunate if a person serving in the Navy did not know from one day to the other what code of conduct he would come under.
    I accept the argument—I have heard nothing to disprove it—that the type of service in the Navy in many instances makes it most difficult to impose discipline in the same way as in the other Services. Ships are away for long periods on their own. It is claimed that it is easy to get the man to a court-martial, and, of course, it is. But the question arises of how many other people from the same ship might have to go to the court-martial. That is one of the important factors which we must bear in mind. It is not just a question of transferring a prisoner to where he can have his court-martial but of how many other people from the same ship might be required as witnesses. I can foresee grave difficulties if the commanding officer of a ship could give only up to 28 days.
    The new Clause might not be in the best interests of the man himself. Many men would prefer their commanding officer to deal out the sentence, knowing the maximum he can give, rather than find themselves sent to court-martial where they might get a more severe sentence. My right hon. Friend, who is in the legal profession, knows that quite often a magistrates' court concludes that a six-months' sentence of imprisonment is not sufficient, and may have in mind a sentence of, say, 12 months. But the magistrates cannot give such a sentence and must send the man to a higher court, which may pass a sentience of two or three years' imprisonment. In the magistrates' court, however, the man would probably have got away with 12 months. I am not saying that this sort of thing would happen in the Navy under the new Clause, but these are practical possibilities. It may well be that in the Navy there are men who receive sentences of from one to three months from their commanding
    652
    officers but who would receive longer sentences at court-martial. I appreciate that in the Navy there are different circumstances. In the Army, people are detached for various periods. It is much easier for the Army to get people to a court-martial than for the Navy.
    I have heard no argument which would convince me that this change would be administratively better, I have heard no argument which would convince me that it would be better for the man concerned. I began by saying that I do not believe in change merely for the sake of change and, although I hope eventually to see these Acts as a whole brought together, I am not satisfied that the new Clause is a reasonable suggestion to put forward at present, and I will not be able to support it.
    Rear-Admiral Morgan-Giles: I am glad to follow the hon. Member for Liverpool, Toxteth (Mr. Crawshaw), who has given us interesting illustrations of his knowledge of the practical aspects of Service life. I cannot agree with the right hon. Member for Aberavon (Mr. John Morris) in his enthusiasm for rationalising. The new Clause seems to be either part of an attempt to diminish the disciplinary powers of the commanding officers of ships or an attempt to bring naval discipline into line more exactly with that of the other two Services, or both. I resist it on both these grounds.
    The right hon. Gentleman has overlooked the very clear enunciation of Appendix 1 of the Select Committee's report. When this matter came up in the Committee, a supplementary memorandum submitted on behalf of the Secretary of State said—and this is quoted on page 139 of the report—
    "It would not be acceptable to operate different disciplinary systems afloat and ashore for the following reasons:"
    It then gave six valid reasons which I shall not now repeat. I do not think that it is true to say that the only reasons given were those of administrative difficulty. There is a much more important threat in this argument right through the proceedings of the Committee.
    Right throughout this matter, I have made the fundamental point that the three Services are very different organisations. I am not looking backwards to flogging—I do not think that that was

    653
    the right sort of emotive phrase to bring into the quieter proceedings we are engaged in. Nor am I resisting a combined Ministry. Obviously, a combined Ministry makes good administrative and operational sense. But each Service must keep its own identity. Field-Marshal Montgomery said that the British Army is essentially a tribal organisation, and the same is true of the other two Services in their own ways.
    I believe that the Bill must not be allowed to be used as an excuse for trying to merge the Forces little by little, as I fear the right hon. Gentleman appears to want to do, into one characterless whole. It is all very well for the right hon. Gentleman, who has been a Minister, from the global viewpoint in the Ministry to pooh-pooh the differences between the Services, but to a young recruit who has earned his badge to sew on his sleeve and who engages in the little rivalries with the other arms within his own Service, that is his horizon. We would dismiss these small differences at that sort of level at our peril.
    Mr. John Morris: I am sure that the hon. and gallant Gentleman does not wish to do me a disservice by misinterpreting my views. I would be the last person to want to reduce the Armed Forces to one colourless whole. In my military career—short and undistinguished compared with his service—I had the privilege of belonging to a distinguished regiment of infantry, and the pride with which we wore the flash on our shoulder straps and the hackle on our hats was drummed into new recruits, just as we impressed upon them that in 1917 we had the honour of refusing to become the Welsh Guards, preferring to remain the Royal Welch Fusiliers, which is also a matter of great pride.
    Rear-Admiral Morgan-Giles: The hon. Gentleman has now made the case against his own suggestion that the disciplinary systems should be merged. He first gave no good reason for it and has now given an illustration from the Army against it. In the Navy, officers and ratings live together in the same ship in very close company and in different conditions from those prevailing even in distinguished regiments ashore. They share the same bad weather, the same good weather. They know one another and live, as the term says, as a "ship's
    654
    company" and an excellent term it is. They have loyalties to their ships and healthy rivalries with other ships in the same squadron, which are to be encouraged. These ratings do not want any disciplinary matters which may have arisen in their ship dealt with by outsiders, even outsiders from within the same Service.
    The report of the Select Committee on page viii has a key sentence. It says:
    "Your Committee do not wish to recommend the expenditure of further time and effort in an attempt to achieve standardisation for standardisation's sake. On the evidence they have received, your Committee are satisfied that the powers at present exercised by naval commanding officers are suited to the needs of that Service and should not be reduced."
    That seems to be an absolutely unequivocal statement.
    The right hon. Member for Aberavon, in his remarks about sentencing was not comparing like with like. In dealing with the investigation of offences in ships at sea and the recording of investigations, he was, similarly, not comparing like with like. It is more important to be quick, while the memory of what happened is fresh in the minds of witnesses and everyone concerned with the case. It is more important that it should be dealt with quickly than with formality, with tape recorders, notebooks and all the rest of it.
    With a small ship heaving round in a seaway the more formal proceedings of a court martial are entirely inappropriate. To sum up, the conditions are not the same between the three Services, and it is therefore no good trying to reconcile their disciplinary conditions. The last sentence of the report sets the tone for what we should be discussing and the way we should proceed. It says:
    "Your Committee therefore emphasise that in preparing the next Bill the Ministry of Defence should have only one object in mind: the best interests of the Services themselves."
    With the utmost respect to you, Madam Deputy Chairman, I end by saying that on the quarter deck, as in the boudoir, I am a great believer in the old saying vive la difference.
    Mr. J. D. Concannon: It is always a pleasure to follow in debate the hon. and gallant Member for Winchester (Rear-Admiral Morgan-Giles). I wish to support the amendment. On page

    655
    xviii of the report it will be seen that I voted against the recommendation that the Ministry of Defence should give early consideration to substituting for the next quinquennial review a common Act applicable to all three Services. I did that for two reasons. One was that I was the first one who had to register a vote and did not know whether to say "aye" or "no". [Interruption.] I am perfectly honest.
    The other point was that there was a second paragraph and it was that which, to me at that moment, was much more important. This is the way I think the Services will develop and we must take this steadily. I should not like to think that we have to rush the Ministry of Defence into doing this within the next five years. I see it as something which will happen in any case—I see the rear-admiral fighting a rearguard action.
    I was interested in the point raised about the powers of commanding officers in the Royal Navy being over and above those of commanding officers in the Army and Air Force. I do not know whether times have changed, but I can remember that my commanding officer in the Army could give only 28 days detention or send one for court-martial. Alternatively, one could opt for a court-martial. I can remember that on the two or three occasions when the C.O. asked me, "Will you accept my punishment?" I practically grabbed it, because I did not want a court-martial, whether or not I was guilty. What happens in the Royal Navy? Are those dealt with summarily given the chance of a court-martial? It is only too clear that the Amendment will not be accepted, but it is good to give the point an airing and to give the senior Service a warning that in time we will have the Services under a common Act.
    5.15 p.m.
    Major-General Jack d'Avigdor-Goldsmid: The right hon. Member for Aberavon (Mr. John Morris), supported by his hon. Friend the hon. Member for Mansfield (Mr. Concannon) has stated the case for the Amendment clearly. I should like to support the hon. Member for Liverpool, Toxteth (Mr. Crawshaw). The gist of the right hon. Member's case was that on the whole, summary naval punishments are much more severe than their
    656
    Army equivalent. He mentioned the four reasons we gave in the report. We said that we thought it unsuitable to have two systems of law in the Navy. This was because it was not in the interests of the Navy, secondly because the choice of summary punishment or court-martial might depend not so much on the gravity of the offence as upon where the accused was serving—whether at sea or ashore. Thirdly, there was a disparity, which we did not want to encourage, between shore and sea service; and, fourthly, we said that there was the administrative load to consider.
    I believe it goes a good deal further than this. Conditions in the Royal Navy are a good deal different from the other two Services. The one essential for all three Services is that justice must be fair, impartial and rapid. The naval system has been tried and proved effective over a long time. We would have received complaints from constituents if this were not so. We fall over backwards to give accused people a fair trial.
    I know that it is not intentional, but I very much deprecate the impression that is given that we are trying to reduce the powers of senior officers in the Royal Navy because we do not feel that they are impartial or fair. There is the same sort of feeling of mistrust in the Army. Take my own regiment, where the commanding officer of a regiment of Chieftain tanks has £5 million worth of tanks in his charge but has a limit of write-off of £25.
    On 12th November in another place the noble Lord, Lord Carrington, had this to say on this subject:
    "I think it will be accepted by everybody who knows this subject that the system of administering justice in the Royal Navy has stood the test of time, is well understood by all in the Navy, and, most important of all, meets seafaring operating requirements by being both swift and economical. I am glad to say that there have been very few criticisms of Naval justice, either from within the Service or from the judges. The Army and R.A.F. system is no less suited to the environment in which these Services live and operate, and it is equally well understood and accepted by their personnel. We must never lose sight of the fact that the disciplinary systems of the Services must be grounded in the operational and environmental needs of each particular Service.
    "So far as the Royal Navy is concerned, it is self-evident that forces afloat must have

    657
    some means of dealing quickly with breaches of discipline. It is, in our judgment, still right that there should still continue to be two disciplinary systems: that of the Army and Royal Air Force, which gives the commanding officers a relatively modest power of punishment, and that of the Royal Navy, which gives commanding officers greater powers of punishment."—[OFFICIAL REPORT, House of Lords, 12th November, 1970; Vol. 312, c. 807–8.]
    It would be wrong to differentiate between sea and land service and would cause anomalies which were mentioned in the evidence and contained in the report. It would be unpardonable to increase the number of courts-martial. The figures quoted for courts-martial show that there are of the order of 60 in a year. It was suggested that this figure might rise to 500, and such an increase would be unforgivable.
    The Committee took evidence from four commanding officers, namely a captain of the Royal Navy, a group-captain station commander in the Royal Air Force and two lieutenant-colonels, one a marine commando and one who commanded an artillery regiment. We asked them their views on their powers of punishment. The Royal Navy and the Royal Air Force accepted the adequacy of their powers, whereas the Army and particularly the commando commanders asked for increased powers in respect of detention and fines. This was not from any point of view of vindictiveness, since one of the chief reasons was to try to avoid courts-martial.
    Mr. John Morris: I am sure that the hon. and gallant Gentleman does not wish to mislead the Committee, but he would be the first to concede that this was the particular opinion of two Army commanding officers. He will remember that the Director-General of Personnel for the Army in his evidence, gave a contrary view and mentioned a poll which had been taken of hundreds of Army officers.
    Major-General d'Avigdor-Goldsmid: The two officers concerned, one a marine and the other a solider, said that 100 officers had been asked and that 70 per cent. had asked for increased powers.
    Mr. John Morris: No.
    Major-General d'Avigdor-Goldsmid: If I am wrong I stand corrected, since I see the right hon. Member for Aberavon
    658
    has the Committee's report before him, whereas I have not. I am saying that the accused are safeguarded. The hon. Member for Mansfield (Mr. Concannon) raised the point about the Royal Navy.
    Mr. Ramsden: It may have been the other way round. I do not think the intervention of the right hon. Member for Aberavon was altogether relevant, because the question to which he referred was asked in a rather different context from that of discipline to which my hon. and gallant Friend was referring.
    Major-General d'Avigdor-Goldsmid: As I was saying, there are safeguards, and the more serious punishments in the Royal Navy have to obtain the approval of a flag officer. Leading ratings and above have the option in more serious offences of electing for trial by court-martial. In the same way, in the Army or Air Force any punishment that affects a man's pay—and detention automatically incurs forfeiture of pay—means that the man has the option of a trial by court-martial. This, of course, applies to more serious offences.
    I will outline to the Committee what happens when a case goes before a court-martial. A summary of evidence has to be taken which involves the taking down of all the evidence of prosecution witnesses in the presence of the accused. This summary of evidence is then forwarded through the normal channels to the legal authorities who give advice on the charge and say whether the evidence so produced is sufficient to prove the case. That evidence then comes back and a court is convened. This process alone can take from between four to six weeks. The court when convened probably contains three officers, other than those belonging to the accused's unit. It also contains a prosecuting officer and a defending officer.
    After the case has been heard the proceedings are sent again to higher authority for confirmation. The whole of this procedure involves delay and means a great deal of entirely unproductive work over and above the normal day's routine. Furthermore, a court-martial causes publicity which in many cases brings stigma upon the unit or a ship and therefore courts-martial are resorted to only when all else has failed. Commanding officers do not send men to detention just for the

    659
    love of doing so. A man sent to detention probably remains on a unit's strength or establishment. This means that this penalises the good soldiers in the unit who behave themselves, because it means that they will have to do the miscreant's work for him while he is away. I feel that for these and other reasons it would be wrong to try to standardise procedure. Therefore, the Royal Navy should be allowed to retain its present system.
    Mr. Wellbeloved: One of the difficulties in these debates is that normally, apart from the intervention of my hon. Friend the Member for Mansfield (Mr. Concannon), we seldom hear the authentic voice of the "other ranks". We always have the benefit of speeches by the hon. and gallant Member for Winchester (Rear-Admiral Morgan-Giles) who served with distinction as an admiral in the Royal Navy, and we are now joined by the hon. and gallant Member for Lichfield and Tamworth (Major-General Jack d'Avigdor-Goldsmid), who served as a distinguished major-general, and by hordes of other ex-officers.
    Whenever we hear the hon. and gallant Member for Winchester talk about officers and ratings living together in the ship, we have a wonderful picture of them all tucking in on the same mess deck and all living a nice, comfortable, cosy life. But the real facts are that the officers live in the wardroom, very often with a cabin each, while the ordinary seaman on the lower decks messes with a large number of his colleagues and comrades in cramped conditions, often finding his sleeping quarters in the best way he can. The paternalistic idea put forward by the hon. and gallant Member for Winchester is absolute rubbish when measured against the reality of actual service in the Royal Navy. The next time we set up a Select Committee on the Armed Forces we should see to it that its members should go round and discuss the application of the discipline Acts with Service men rather than with officers. Those are the men to whom the discipline Acts are applied, yet we never hear the authentic voice of the ordinary Service man in our debates.
    The right hon. Member for Harrogate (Mr. Ramsden) said that he was against
    660
    the amendment because he was not a standardiser and did not believe in uniformity throughout the whole of the Services. I share his view. We do not want uniformity and standardisation to be pursued merely for their own sake. However, the case made by my right hon. Friend the Member for Aberavon in moving the Amendment was not based purely and simply on a desire for uniformity, but on the basis of seeking justice for Service men in the Royal Navy. He mentioned the evidence given by the Judge Advocate General in which the judge made it clear that neither he nor his Department would wish to see the same loose form of summary justice in the Royal Navy applied to the other two Services. What my right hon. Friend is seeking, and he has my support, is a more just system of disciplinary code applied to the Royal Navy.
    Mr. Crawshaw: Is this loose procedure relevant only in regard to the 28 days to three-month sentence? Does not this same loose procedure take place in a unit where the officer can award up to 28 days and where there are no committal procedures?
    Mr. Wellbeloved: The graver the offence the more formal should be the proceedings. One of our objections to the Royal Navy disciplinary system is that the proceedings on board ship when trial is taking place before a commanding officer are not up to the standard which, according to the evidence of the Judge Advocate General, they should be and, in his view, those same standards would not be acceptable to the other two Services.
    I turn to the Naval Discipline Act and the powers of commanding officers in the operation of those provisions. It is not without significance that when one looks at the number of men who reengage in the three respective arms of our Services one sees that the Royal Navy has the lowest percentage of re-engagement. I do not suggest that that low percentage after a period of nine years is due wholly to the application of what can only be described as an unfair disciplinary system, but I suggest that it is a contributory factor. The fact that the Royal Navy can induce only just over a third of Service men to re-engage, as against 50 per cent. in the Army and nearly 60 per cent. of men in the Royal Air Force,

    661
    should be a factor to cause the Ministry of Defence to look at the disciplinary code in the Navy to see whether it is having any effect on this percentage of re-engagement.
    My right hon. Friend referred to the evidence given to the Committee about the sea/shore ratio and went on to develop the argument that because only 45 per cent. of the Navy is at sea—and only a small percentage of that 45 per cent. is beyond the range of administrative support—therefore he suggested we should have a dual system as suggested in the amendment. Since he was trying to be fair to the Navy, I feel that he illustrated a weakness in his own code. I hope that when eventually we consider bringing a greater degree of justice into the Navy, we will not adopt entirely my right hon. Friend's proposals since it would be difficult to operate two systems in the Navy. On the point about the small number involved—and I take a different stand from my right hon. Friend in regard to the sea/ shore ratio—the Ministry's figure in the White Paper make the sea/shore ratio much less than 45 per cent. They make it about a third. So the problem is probably easier to deal with than my right hon. Friend suggests: a smaller number of people are at sea, and the required range of administrative support is less than my right hon. Friend thought.
    In five years' time, when we consider these matters again, it may be that the Admiralty will be more enlightened and more receptive to the idea of bringing its disciplinary systems into line with those of the other two Services.
    We have been told that, because of the vast improvements that have been made and because ships now operate with advanced machinery and very complicated systems, many of the old traditions of the Navy have had to go. Rum has disappeared, much as I disagreed with my right hon. and hon. Friends about it. Now it is rumoured that duty-free tobacco is to go. It seems that the Admiralty is prepared to see all the old traditions which made up the "perks" for the lower deck swept away, but that it will fight to the death to preserve an outdated and unjustifiable disciplinary code. If it maintains that the "perks" must go, it must in turn introduce a system of summary justice which is comparable in all respects with those of the other two
    662
    Services. For those reasons, I support my right hon. Friend's amendment.
    Mr. Ramsdell: May I apologise to my hon. and gallant Friend the Member for Lichfield and Tamworth (Major-General Jack d'Avigdor-Goldsmid)? He said that 70 out of 100 commanding officers would prefer to have their powers increased. Some members of the Committee did not trust their recollection of the report and thought that my hon. and gallant Friend had the figures the wrong way round. However, he was quite right, and his recollection is confirmed by paragraph 10 of the report, which refers to Question 793 in the evidence to the Committee.
    Mr. John Morris: May I add a similar apology? It was my recollection too, that the hon. and gallant Gentleman had expressed the proportions in the reverse order. That was also the recollection of my hon. Friend the Member for Erith and Crayford (Mr. Wellbeloved). It is amazing how three members of the Committee thought that the record was quite different. Who is right, I am not sure. However, the record confirms the view of the hon. and gallant Gentleman.
    Mr. Lambton: As this will be my only opportunity to address the Committee, perhaps I might begin by stressing the very constructive nature of the report, practically every part of which has been accepted by the Government. The Committee set out to do constructive work, and it succeeded. It is no exaggeration to say that very good results have flown from its work.
    I want also to assure the right hon. Member for Aberavon (Mr. John Morris) that, even if I advise against the acceptance of his amendment, I have listened carefully to everything that he said and his arguments will be considered before the next review. The same goes for all the arguments put forward by hon. Members on both sides.
    It would be wrong not to express from the Front Bench on behalf of the Committee our thanks to the Chairman, my right hon. Friend the Member for Harrogate (Mr. Ramsden), for the way in which he conducted our meetings. From this side, we must express our gratitude to the right hon. Member for Aberavon for the way in which he led his side of the Committee in our debates.

    663
    What was very refreshing about some of our meetings was the cross-voting which resulted. I think that the hon. Member for Liverpool, Toxteth (Mr. Crawshaw), at any rate agrees with my right hon. and hon. Friends today. That is a rarity which is always refreshing in politics.
    I come, then, to the effect of the Amendment and the proposed new Clause. It would be to reduce the powers of naval commanders to the same level as those in the Army and the R.A.F. At the same time, it would give the Defence Council the power by regulation to restore the present naval powers in whole or in part to appropriate categories of naval commanding officers.
    The Amendment is based on the argument that, though the captains of distant naval ships require the present powers, they are not necessary for the captains of ships operating closer to administrative support or for the captains of fleet establishments ashore.
    The right hon. Member for Aberavon made a powerful speech in moving this Amendment. I understand entirely his motivation. However, there are a number of major arguments against accepting it.
    It is not possible to distinguish in the way that the right hon. Gentleman proposes between different categories of ships. Some ships are detached from the rest of the fleet. In such cases, any reduction of commanding officers' powers would be difficult to operate. Equally, there are a few naval vessels which do not very often go far from their home ports. If one looks carefully at the disposition of the ships of the fleet, however, it becomes clear that few of them falls into these two extreme categories. The pattern of activity of most ships of the fleet is much more varied and is liable to be changed at very short notice as ships are redeployed to take account of changing operational and other requirements.
    Perhaps most important of all is the point that almost every ship in commission has to be ready at short notice to proceed on duties which may involve its being well beyond the range of immediate administrative support, although normally it would be within its reach. At the same time, although fewer ships are now
    664
    in far distant waters than was formerly the case, this has not altered the fact that the fleet has to be highly mobile and ready to accept immediate changes of plan.
    5.45 p.m.
    My second argument relates to the suggestion that it is possible to have two disciplinary procedures in the navy, one for the seagoing fleet or some part of it—and again it is possible that some confusion might arise here—and the other for naval establishments ashore. Unlike the right hon. Gentleman, I can see very serious objections to any arrangements which would place the members of a single Service under two disciplinary procedures. I listened with interest to the right hon. Gentleman's comparison when he referred to someone in civilian life committing some crime and finding himself shuttlecocked from one court of justice to another. However, that is not a relevant comparison. When a man joins a Service, he expects to be in that Service under one disciplinary system.
    I ask the Committee to listen to some of the following difficulties that it would cause. From the point of view of men in the Navy, there is a great deal to be said for a single disciplinary system. If there were more than one, men might find themselves passing from one system to the other without being certain which one they were under at the time. Secondly, under two systems, a man would be tried summarily or by court martial depending on whether he was serving ashore or afloat rather than depending on the seriousness of his offence. Thirdly, a difficulty would arise in the case of an absentee or deserter. Once his ship sailed, he would have to be tried under the disciplinary system operating ashore, whereas members of the same ship's company who had sailed with the ship would be dealt with under a different system for what probably were less serious offences. At the same time, there is no doubt that two systems of discipline would complicate administration both in the fleet and at headquarters.
    My views contradict the arguments which have been advanced by hon. Members opposite. We have been told that the Amendment would not impose too great a strain upon the disciplinary

    665
    system of the Navy. If men were court-martialled instead of receiving summary justice, there would be a large number of cases for court-martial requiring evidence to be brought ashore from those at sea. That would create considerable inconvenience to ships which might require all their men at effective stations.
    It is important to stress the considerable differences between naval life and Army and Air Force life. When men come ashore after a period of sea, they are subject to a great deal more small temptations than men serving in the Army and the Air Force. Very often, therefore, summary justice and the imposition of slight sentences fits the crimes far better than hawking men back for court-martial.
    The hon. Member for Mansfield (Mr. Concannon) referred to the safeguards of men who are tried summarily at sea. The supplementary memorandum submitted to the Committee, which is to be found in Appendix 22 on page 175, describes
    "… the safeguards, standards of practice and judicial procedures which are observed when a naval rating is tried summarily."
    It goes on to say that the procedures are governed by Queen's Regulations for the Royal Navy. It is clear that men have considerable safeguards, and I draw special attention to paragraph (h) which says:
    "For more serious offences, leading ratings and above may have the right to be tried by court-martial (equivalent to general court-martial in the other two Services). They are told of this right by the Commanding Officer at the end of the investigation and then have 24 hours in which to decide whether to opt for trial by court-martial or summarily."
    I might add that the great majority of those who have had this opportunity to opt for trial by court-martial have not taken it up. That suggests that the men themselves are not as dissatisfied with the system as has been suggested.
    The Armed Forces have been subject to great changes in the last few years. This process has not yet been completed, and I do not think that we should add to these problems when there is no evidence that it would be of advantage to the Service.
    For all these reasons—and I hope reassurances—I urge the House to reject the amendment and leave the Clause in its present form.
    Mr. John Morris: Since there will not be an opportunity on Third Reading, may I thank all the witnesses who gave evidence to the Select Committee, and particularly the Chairman, the right hon. Member for Harrogate (Mr. Ramsden) for guiding our proceedings; the staff of the Defence Department, led by the Head of the Service Discipline Acts Review Division; Parliamentary Counsel; and the Officers of the House, who gave an incredible amount of assistance to the Committee. There was from time to time robust cross-examination from all members of the Committee, and the witnesses were very patient throughout the proceedings.
    The Committee examined carefully, Clause by Clause, many matters which caused concern to us, the concept of active service, some of the punishments, and some of the offences. It was obvious to us that there had been a great deal of give and take from each of the Services in turn, and this obviously will go on.
    My suggestion that there should be a common Act for the three Services was rejected by the Committee. However, I am sure that with the effluxion of time, in due course, maybe before the next quinquennial review, a common Act will be brought before the House.
    One of the matters that was acceptable to the Committee, which perhaps will do more than any other to bring about comparison between one Service and another, was the Committee's view that the Secretary of State for Defence should consider whether the legal departments of each Service should become a common service.
    The hon. and gallant Member for Aberdeenshire, West (Lieut.-Colonel Colin Mitchell) expressed disquiet in the Amendment he moved in the Committee, on the place of punishment, the purposes, and the methods and powers. It is obvious to us all, deliberating as we are on the system of discipline in the Armed Forces, that a punishment which involves restriction of a man's liberty is a waste of resources, whether of the Armed Forces or in civilian life. Therefore, when we look at the purpose of punishment it is important all the time to consider whether our methods of punishment and the means we use to decide upon sentencing are the best possible, and whether they meet the views of sentencing in the 1970s as opposed to the 1870s.

    667
    I think that it was the right hon. Member for Harrogate who suggested that I placed too much emphasis on the views of the Vice Judge Advocate General, and that he preferred that of the commanding officers. As I understood it, the Vice Judge Advocate General gave the considered view of his part of the Army Department that he would not wish the powers enjoyed by the Royal Navy commanding officers to be extended to all the other Forces without a large number of safeguards for the personnel involved. That in itself, whether the Committee accepts my views or not, is worthy of examination, is cause for concern, and should be examined by the Secretary of State for Defence with some care in the next five years.
    I quoted earlier the figures which we had for the analysis of punishments meted out for different classes of offence. In the division between 28 and 90 days, they were 47 for the Navy, three for the Army and one for the Royal Air Force, and the pattern remains for all the other offences. Having regard to the numbers involved in the Navy, and even on absolute terms, the figures are out of proportion. This matter, too, needs, full examination in the Defence Department.
    My hon. Friend the Member for Liverpool, Toxteth (Mr. Crawshaw) did not support me on this matter in Committee. He argued contrariwise, but he has done so on previous occasions in defence matters. He saw administrative difficulties, and pointed out that even in civil courts the majority of people preferred to be tried summarily. A shorter maximum sentence is always attractive to someone in difficulty, but my hon. Friend knows probably better than I that the conviction rate is rather different when one elects to be tried in a higher court. That is one of the counter-attractions. Whilst he argued against my Amendments, my hon. Friend wants the Acts brought completely together in clue course. I took it that he was against sin, but not now.
    The hon. and gallant Member for Winchester (Rear-Admiral Morgan-Giles) said that I wished to reduce the Forces to one colourless whole. I dealt with that in my intervention. I am very conscious of the traditions of each of the Armed Forces. That is why I sought to introduce my Clause in what I thought was a reason-
    668
    able way, not bringing the Royal Navy into line with the other Services without providing excepting provisions.
    I am grateful to the Minister for telling us that all our observations in Committee and during the debate will be considered before the next review. He was very kind to us in his observations during the whole proceedings.
    In view of the arguments on the administrative difficulty of introducing a two-tier system for the Royal Navy, I am encouraged the next time we discuss the matter not to provide any excepting provisions, but perhaps to bring the Royal Navy straightforwardly into line with the other two Armed Services—and let that be a lesson to those who oppose me now.
    The argument has been interesting. As the Minister has told us that all the matters raised will be considered before the next Review, as I am confident that there will be more rationalisation of the Navy with the other two Armed Forces in due course, and as it may well be that in the next Review the objects I have in mind will be achieved, and the Government of the day will introduce something not unlike what I have suggested now, I do not press my new Clause.
    Question put and agreed to.
    Clause 47 ordered to stand part of the Bill.
    Clauses 48 to 78 ordered to stand part of the Bill.

  Schedule 1

    AMENDMENTS ARISING FROM PART II OF THIS ACT
    Mr. Lambton: I beg to move Amendment No. 4. in page 63, leave out lines 11 to 14.
    I think that it would be convenient to take with it Government Amendment No. 5.
    These Amendments are consequential on our decision not to extend to the Army and R.A.F. the offence of behaving with contempt to a superior officer.
    Amendment agreed to.
    Further Amendment made: No. 5, in page 63, leave out lines 17 to 19.
    Schedule, as amended, agreed to.
    Schedules 2 to 4 agreed to.
    Bill reported, as amended; as amended, considered.
    Motion made, That the Bill be now read the Third time—[Queen's Consent, on behalf of the Crown, signified]
    Question put forthwith pursuant to Standing Order No. 56 (Third Reading), and agreed to.
    Bill accordingly read the Third time and passed, with Amendments.

  WATER RESOURCES BILL [Lords]
  As amended (in the Standing Committee), considered.
  WATER RESOURCES BILL [Lords]
    Clause 2

      SUPPLEMENTAL
      6.0 p.m.
      The Minister for Local Government and Development (Mr. Graham Page): I beg to move Amendment No. 2, in page 3, line 4, leave out from 'section' to second 'at' in line 5 and insert:
      Which—
      (i) authorises the making of discharges of water'.
      If it would be convenient to the House, Mr. Deputy Speaker, may we discuss Amendment No. 3 with Amendment No. 2?
      Mr. Deputy-Speaker (Sir Robert Grant-Ferris): I think that it would be for the convenience of the House, unless there is any objection, to discuss, with Amendment No. 2, Amendment No. 3, in page 3, line 9, after '1949', insert:
      ', or
      (ii) specifies such a place as a place at which water to be discharged in pursuance of the order is to be abstracted or impounded,'.
      Mr. Page: The House will remember that Clause 1 (1) of the Bill authorised the Secretary of State to make an order authorising the discharge of water into any inland waterway or underground strata, and that that kind of order is not, by the Bill, subject to any Parliamentary procedure, unless it relates to a national park or to an area of outstanding natural beauty. If it does so relate, then, by Clause 2(4)(a) it can come
      670
      before Parliament on a Prayer that it be annulled. I said "if it relates to a national park or an area of outstanding natural beauty"; that is to say, where water is taken from or discharged into such a park or area. As printed in the Bill now before the House, the paragraph was not wholly free from doubt. It was agreed on both sides of the Committee that there was no intention to apply the negative procedure in Parliament solely because the water originated far, far away in some national park or area of outstanding natural beauty, but that we wanted to cover the case where the point of discharge of the water was in the park or that kind of area, or the point of abstraction or impounding of the water was in the national park or the area of outstanding natural beauty.
      Both points would have to be stated in the order, that is to say, in the order made by the Secretary of State. He would have to set out the point of discharge and the point from where the water was being abstracted before in due course being discharged.
      In saying that, I call attention to paragraph (2)(b) and (c) of the Schedule, which sets out what should be in the notice and, therefore, in the draft order which comes before the Minister. So we shall be able to see, from the draft order, the point of discharge and the point from which water is abstracted which is eventually discharged.
      In the main, we shall be dealing with reservoirs in connection with these orders, and if the reservoir is in a national park or an area of outstanding natural beauty, no matter where the discharge is, discharging inside or outside a park, the negative procedure will apply to that order. Also, if the reservoir is outside the national park or the area of outstanding natural beauty and the discharge is inside, the negative procedure will apply, if the Amendments are accepted.
      To make clear what the Amendments would do, perhaps I may read them into subsection (4) of the Clause, so that we can see that it covers the points that I have been trying to make. If the Amendments are accepted, subsection (4) would read as follows:
      "The power to make orders conferred by the preceding section shall be exercisable by statutory instrument, and—
      (a) a statutory instrument containing an order under that section which—(i)

      671
      authorises the making of discharges of water at a place which, on the date when the order is made, is within a National Park or an area of outstanding natural beauty within the meaning of the National Parks and Access to the Countryside Act 1949 or (ii) specifies such a place as a place at which water to be discharged in pursuance of the order is to be abstracted or impounded,
      shall be subject to annulment in pursuance of a resolution of either House of Parliament."
      That covers the desire shown on both sides of the Committee to make certain that there were no ambiguities about the Clause and that the House would have an opportunity of debating those occasions when the discharge order affects national parks or areas of outstanding natural beauty.
      Mr. R. H. Turton: I should like to ask my hon. Friend whether this is quite fair. At the Committee stage he said:
      "I should like to consider whether, if the affirmative procedure were given under subsection (4) in these cases relating to national parks and areas of outstanding natural beauty, one might have to define the cases a little more narrowly so that the trivial cases … would have to be excluded so that we only dealt with the cases, such as my right hon. Friend has mentioned, on which one might expect that there would be a Prayer."— [OFFICIAL REPORT, Standing Committee D, 30th March 1971; c. 84.]
      If my hon. Friend is to accept Amendment No. 4, I quite understand that this is consistent with the undertaking given during the Committee stage, but as he has not yet put his name to the Amendment I am, rather naturally, a little suspicious.
      The wording which we are now seeking to change was introduced by the noble Lord, Lord Sandford, in another place when he, in response to pressure, gave this particular concession regarding the Statutory Instrument with the negative provisions. Some of us, for reasons which I shall talk about on a later Amendment, regarded that particular procedure at present as inappropriate.
      If my hon. Friend will not agree to the affirmative procedure, these Amendments are not necessary and are contrary to the undertaking that he gave. There was no general agreement on the Committee that the wording proposed in the other place was insufficient. The wording that my hon. Friend has chosen to-
      672
      day might bring a certain amount of confusion into the matter, because whereas the Schedule and the original Clause talks about when water is "taken", he has now introduced the phrase "abstracted at a place." Presumably, to be terminologically correct, it would be abstracted "from a place." My hon. Friend should be satisfied, if he means to restrict this to the negative procedure, with the wording his colleague introduced in the other place. If it is a minor matter there will never be a Prayer. There will be a Prayer only when there is considerable feeling about a river authoity's proposal.
      I ask my hon. Friend to give an assurance that he is not going contrary to the statement he made in Committee on 30th March when he limited any idea of changing the wording of the Clause to a change from the negative to the affirmative procedure. It goes too far to say that the Committee agreed to that change. It agreed to the change conditional on the change in procedure.
      Mr. Denis Howell: Unlike the right hon. Member for Thirsk and Malton (Mr. Turton), I wish to express my appreciation of the action the Minister has taken to meet what I thought was the consensus of the Standing Committee. Those of us who served on the Standing Committee will recall that the words originally were
      "water taken wholly or partly at a place"
      The argument advanced on behalf of my right hon. and hon. Friends and on behalf of the water industry and of local authorities was that there could be a case where water originated in Wales or in some other place of outstanding beauty but because a reservoir had been built in Manchester, Bristol or some other place at a spot where there was no outstanding beauty to be taken into account, under the terms of the Bill as originally drafted the Clause would apply a restriction to those operations, not because that was the point of outstanding natural beauty, but because the water originated elsewhere.
      That was clearly unsatisfactory. In Committee the Minister undertook to consider the point. The form of wording produced in the Amendments vastly improves the Bill and gives great satisfaction to the water industry and local

      673
      authorities. These Amendments will have the support of this side of the House.
      Mr. Graham Page: May I, by leave of the House, reply to this short debate? My recollection of the date about the ambiguities or anomalies in the Clause is the same as that of the hon. Member, for Birmingham, Small Heath (Mr. Denis Howell). We wanted to exclude cases where water originated at some considerable distance and to concentrate on matters affecting national parks and areas of outstanding natural beauty.
      I think that we now have the wording right. It is correct to use "at". That word was used in the original Clause. We wish to concentrate on the point where the abstraction is made.
      I said in Committee that it might be necessary, particularly if we were changing the form of parliamentary procedure, to distinguish between the trivial cases and the more serious cases. It has not been possible to make that distinction. It remains possible under the Bill for a Prayer to be laid against even the most trivial case, and that could be debated under the negative procedure.
      Amendment agreed to.
      Further Amendment made: No. 3, in page 3, line 9, after '1949' insert;', or
      (ii) specifies such a place as a place at which water to be discharged in pursuance of the order is to be abstracted or impounded,'.—[Mr. Graham Page,]
      6.15 p.m.
      Mr. Turton: I beg to move Amendment No. 4, in page 3, line 9, leave out from 'shall' to 'House' in line 10 and insert:
      'not come into effect unless it has been laid before Parliament and approved by each'.
      In Committee we had a wide-ranging debate on this point and my hon. Friend the Minister undertook to consider whether we could not make a change from the negative to the affirmative procedure. Great advantages would flow if we were able to make that change, particularly in view of what is happening to Prayers in the House of Commons.
      The Select Committee on Statutory Instruments considered this matter and made this statement in paragraph 14 of its recent Report:
      "Your Committee do not consider that the present practice of the House regarding instru-
      674
      ments subject to negative procedure and general instruments is satisfactory. Until fairly recent sessions, it was the practice of the House that time was found for a debate in the House on all Motions praying that statutory instruments be annulled; if for any reason time could not be found within the 40 days praying time, it was the convention that time would be found for a Motion in similar terms to be debated (these Motions are called 'out-of-time Prayers')."
      Captain Crookshank, when he was Leader of the House, stated:
      "I guarantee that every time a Prayer is put down if I cannot arrange a debate within the 40 days I arrange for an 'out-of-time' Prayer outside the 40 days."
      The Special Report continues in this way:
      "In recent sessions the practice of the House has changed. It is now not uncommon for Prayers to remain undebated either 'in time' or 'out of time'."
      The position has become increasingly serious. In Session 1967–68, out of the 57 notices given, only 21 were debated within the 40-day period. In the following Session 48 notices were given; 31, or over half, were debated within the period of 40 days. I am told that in succeeding Sessions the position has got even worse.
      The aim of both sides of this House and of the other place is that when a national park or an area of outstanding natural beauty is involved in a reservoir scheme there should be an opportunity for a debate to be held in both Houses if Members so wish. The present Leader of the House made this statement when giving evidence recently before a Select Committee:
      "Where an Opposition expressed a desire for particular Prayers, my experience was that when I asked for them they were nearly always granted."
      But for private Members he agreed:
      "There is a real problem here, that the issues raised in negative Orders do not have opportunity for debate."
      Clearly it will be most unsatisfactory it, there being a demand by others than the Opposition for a debate on matters concerning national parks and areas of outstanding natural beauty, there is no scope for a debate in the House on the Prayer.
      The position in the House of Lords is peculiar. The rules of orders for Prayers are different from those here, and I feel sure that one reason which may be making my hon. Friend more obdurate

      675
      than usual is his view of some of the ramifications of the special procedure in the other place. Except for Prayers on local government boundaries, no Prayers have been debated in the other place for the last five years. The other place does not have any Standing Orders procedure for Prayers. The only occasion that I can find of a debate on a Prayer was on one relating to local government boundary revision.
      We are faced here with a great difficulty. I appreciate the difficulty raised by Standing Order No. 216 of the other place, under which there is a system for Petitions against Affirmative Resolutions. I appreciate the difficulty, which undoubtedly faces my hon. Friend, that that might involve the employment of counsel and having something like a repetition of the Private Bill procedure which hon. Members do not want to see again, because it is an expensive procedure and often a lengthy one, but we should, in this debate, ask for an assurance, either from my hon. Friend, or from the Leader of the House that, when a Prayer is put down against a proposal for a reservoir to be built in a national park or an area of outstanding natural beauty, time will be found for a debate on the Floor of the House, and not merely if the request for a debate is backed by the Opposition.
      It may be that the Prayer will be on a matter on which the Opposition do not feel strongly, but on which there is strong feeling throughout the country. To give an example, it may be that the Opposition of the day would not have wished to put down a Prayer on the Swinicombe Reservoir in Dartmoor, but certainly a mass of objectors wanted that Prayer to be debated. Equally, the question of Farndale was not one with which the two Front Benches were concerned, but a mass of people who want to conserve the beauty of the country felt very strongly about it.
      It is clear from what my hon. Friend said on the previous Amendment that he is not friendly to this Amendment, but I hope he will assure me that if we stick to the negative procedure and do not adopt my Amendment and have the affirmative procedure, he will arrange that if a Prayer is put down, time will be found to debate it in this House.
      Mr. Nigel Spearing: When the Father of the House puts forward the kind of Amendment that we have before us, it behoves us to look at it very carefully, I appreciate the right hon. Gentleman's knowledge, and his reasons for putting forward the Amendment, but I suggest that there is an important principle which he did not mention, which is the distinction between the affirmative and the negative procedure.
      If, as the right hon. Gentleman suggests, we have the affirmative procedure, it appears to me that we are being asked to agree to something that is special. We are being asked to look at it, but if we have the negative procedure, it is a check on something that is normal.
      As I understand it, one of the purposes of the Bill is to transfer some of the complex arguments that there are on this kind of question away from this Palace to a locality where people can find it more convenient to attend, and where wider topics can be mentioned in a slightly less formal atmosphere. Then Members of this House or of the other place can, if they wish, put down a Prayer as a check. To do it the other way round would require affirmative procedure to be followed every time, which would result in complicated discussions akin to those we have at the moment.
      The right hon. Gentleman referred to the procedure in the other place. I think that I should perhaps quote from the current edition of Erskine May, which outlines the procedure mentioned by the right hon. Gentleman because, where there is a Petition, the Special Orders Committee can go further. Erskine May says on page 571:
      "Where such a further inquiry is recommended the Select Committee consists of five Lords named by the Committee of Selection and conducts its proceedings as if it were dealing with a Private Bill."
      In other words, we are back to the sort of procedure which I feel sure most hon. Members wish to avoid.
      It is for those two reasons that I disagree with the right hon. Gentleman, whose views I respect for many reasons. I do not think that we should accept the Amendment as it stands.
      Mr. Denis Howell: I endorse the views of my hon. Friend the Member for Acton (Mr. Spearing). In every way it

      677
      is not appropriate to have the affirmative Resolution procedure in respect of these Bills, but I have some sympathy with the case made by the right hon. Member for Thirsk and Malton (Mr. Turton). I think that the Minister is faced with a dilemma, because he is not responsible for the procedures of the House or its timetable. Nor is he responsible for providing opportunities for hon. Members to debate Prayers.
      I ought to make it clear that I have no authority from the Opposition benches to talk about procedural matters and time-tabling, but it would be wrong not to acknowledge that the right hon. Gentleman has a point of some substance when he says that if hon. Members wish to pray against an order they should have the opportunity to do so, whether the order is within the time scale or not, and the interesting references made by the right hon. Gentleman to the remarks of the late Captain Crookshank are extremely relevant.
      The Minister cannot be expected to take on board responsibility for this matter as laid down in the Amendment. His job is to find the right answer to whether we have the affirmative or the negative procedure. The Minister cannot be expected to go further than that, but I join the right hon. Gentleman in asking him to take the matter up with his colleagues, and particularly the Leader of the House, to see whether we can solve the dilemma which the right hon. Gentleman has so fairly expressed.
      6.30 p.m.
      Mr. Graham Page: As I said on the previous Amendment, normally orders under the Bill will have no Parliamentary procedure at all. But if they relate to areas of outstanding natural beauty or national parks, the Bill provides for the negative procedure. The Amendment would substitute the affirmative procedure for those orders affecting national parks or areas of outstanding natural beauty. It would then be necessary for the Government to find time for a debate on that order, otherwise the order would not be effective.
      My right hon. Friend the Member for Thirsk and Malton (Mr. Turton) said that he thought that I was unfriendly to his Amendment. I am unfriendly to it in a purely parliamentary respect. I have great sympathy for his point. The whole
      678
      purpose of accepting in another place what is now in Clause 2(4) of the Bill, the negative procedure for those orders, was to ensure the possibility of debate of those orders in both Houses or in one House as Members might choose.
      We cannot, under present procedure in this House, ensure that, if an order is subject to the negative procedure, it will be debated or will even have the opportunity of being debated in this House. That occurs by a combination of the law that the negative procedure applies for a period of 40 sitting days after the order is laid and our rule of procedure that Prayers shall not continue after 11.30 at night.
      We could ensure by the affirmative procedure that the order would be debated in this House, but in another place the affirmative procedure sets on foot processes which are very similar to Private Bill processes. Indeed, the whole purpose of the Bill is to relieve the parties concerned from any such process. The House of Lords Private Business Standing Order No. 216 provides that any orders which come before that House for affirmative resolution can be referred to the Special Orders Committee in that House, before which Petitions can be made and heard in exactly the same way as if that were a Private Bill Committee.
      This is what we hope to avoid under the Bill. If we have the affirmative procedure applied in another place, we are back to square one. The Bill will have served no useful purpose in removing the expensive and long procedure of a Private Bill Committee.
      My right hon. Friend asked whether I could give an assurance that, if the negative procedure remains applicable to these orders, there will be the opportunity of debating a Prayer in this House. Of course, I cannot give that, because I might be giving an assurance that the whole procedure of the House would be disrupted by an enormous number of Prayers being tabled.
      Mr. Turton: Are there to be a great number of reservoirs in national parks and areas of outstanding natural beauty?
      Mr. Page: I was not necessarily referring only to such orders. As the figures which my right hon. Friend read out showed, there are no reservoir orders on the Order Paper at the moment, but the

      679
      House was unable to take all the prayers. It merely boils down to this: the rules of the House will operate all right so long as one plays the game, but if one tries to disrupt the rules it is a very easy thing to do. If one puts many prayers on the Order Paper, it is impossible for any Government or any Leader of the House or any usual channels to promise that every prayer will be debated. So I am afraid that I cannot give that assurance.
      But I am sure that our debates on this subject have highlighted the position and shown particularly the concern of this House for these orders; if Prayers are laid against any order of this sort, I am sure that any Government or Leader of the House will give great consideration to them.
      This does not mean that I hope that there will always be opposition to reservoirs just because they are in national parks or areas of great natural beauty. When properly planned, located and landscaped, reservoirs can greatly enhance the beauties of the parks and these areas and can make a great contribution to the happiness of the people by providing a most enjoyable form of recreation. It is a positive policy of this Government that the natural beauties of our country shall be available to the people. That involves not mere conservation but improvements as well, and reservoirs can be improvements.
      It is right that, on any occasion when a Member wants to bring a subject before the House, it should be brought before the House. I hope that the words which have been spoken from both Front Benches and back benches on this Amendment, both now and in Committee, will convince any Leader of the House that these are the sort of orders for which he must make time available for debate. I cannot give any undertakings about it: I can only express my very strong hope that any Leader of the House will do that in future.
      Amendment negatived.

  Schedule

    ORDERS AUTHORISING DISCHARGE OF WATER
    Mr. Graham Page: I beg to move, Amendment No. 5, in page 4, line 27,
    680
    leave out 'twenty-eight days' and insert 'six weeks'.
    Mr. Speaker: I think that it would be convenient to discuss at the same time Amendment No. 6, in page 4, line 29, leave out 'that period' and insert:
    'a period of fifty-six days beginning with the date of the first publication of the notice';
    and Government Amendments Nos. 9 and 10.
    Mr. Page: Paragraph 1 requires the authority which is asking for an order to submit a draft order to the Secretary of State and to give notice that it has done so in one or more newspapers circulating in each locality. In paragraph 2 there is set out a list of what shall be included in that notice. Paragraph (e) says that the notice shall
    "specify a place in the river authority area where a copy of the draft order and of any relevant map or plan may be inspected by any person free of charge at all reasonble times during the period of"
    —it says "twenty-eight days"—
    "beginning with the date of the first publication of the notice;"
    Paragraph (f) says that the notice must
    "state that any person may within that period, by notice in writing to the Minister, object to the making of the order".
    So taking those two paragraphs together, there is a period of 28 days for the objections to be made after the notice has been published.
    The Amendment would increase that period to six weeks. My right hon. Friend the Member for Thirsk and Malton (Mr. Turton) had an Amendment down in Committee extending the period to two months. There is some precedent for the period of 28 days in the Water Resources Act, 1963, but there is also a precedent for a period of six weeks in planning law on notices very similar to those set out in this Schedule. Not entirely by way of compromise, but by way of giving way to my right hon. Friend's powerful arguments on this point, I decided that it would be right to have regard to the time which is familiar to those concerned with planning law, six weeks, within which to object, and therefore to substitute here six weeks for 28 days.
    We must strike a balance between giving objectors time in which to learn

    681
    of a draft order and to make their objections known and having the sort of delays which might result if we allowed too long a time for objections.
    One will embark on this procedure because the conservation of water is needed in some areas very badly or because the transfer of water from one area to another should take place This is done for the good of the community and nobody will embark on this procedure unless the matter is of some urgency
    We must, therefore, balance legitimate private interests against the public good. Because, in planning law, the time of six weeks is known as a reasonable period for objections, we have chosen it in the Amendment. Amendments Nos. 9 and 10 are consequential on Amendment No. 5.
    Mr. Turton: I am obliged to the Minister for this concession. I agree that six weeks is better than the period originally suggested. Considering the remoteness of some national parks and reservoir areas, it is not always easy to ensure that all concerned are made aware of proposals of this kind, particularly as the postal service has not improved lately.
    Mr. Denis Howell: It was on this point that, as a result of advice given to me by the water industry, I pressed an Amendment in Committee. I, too, wish to express my appreciation to the Minister for the change he has made in the Bill.
    Amendment agreed to.
    Mr. Graham Page: I beg to move Amendment No. 7, in line 35 after "situated", insert:

    (b) every navigation authority, harbour authority and conservancy authority appearing to the river authority to have functions relating to any inland water into which any of the proposed discharges may be made;

    (c) all statutory water undertakers appearing to the river authority to be entitled to absaract water from any inland water or underground stratum at places at which it appears to the authority that the flow, level or quality of the water may be affected by any of the proposed discharges;

    Mr. Speaker: I suggest that it would be convenient for hon. Members to discuss at the same time Amendment No. 8, in line 35 after "situated", insert:
    682
    (b) any statutory water undertaking having the right to abstract water from the inland water or underground strata in which the flow level or quality of water may be affected by any of the proposed discharges;
    Mr. Page: The Schedule points out in paragraph (1) that a notice must be published in the newspapers about a draft order submitted to the Minister. A copy of that notice must be served on certain bodies, and they are described in paragraph (3) of the Schedule. In (3)(a) it must be served on
    "every local authority within whose area any discharge point is situated."
    In paragraph (3)(b) it must be served on
    "every person who has given notice to the river authority requesting them to notify him of applications by the authority or orders under section 1 of this Act"
    In Committee we discussed whether these requirements were sufficient and it was suggested that other bodies, such as navigation, harbour and conservation authorities, should have an automatic statutory right to a notice. I have in Amendment No. 7 endeavoured to provide for a statutory notice to be given to such bodies, and the Amendment refers to
    "every navigation authority, harbour authority and conservancy authority appearing to the river authority to have functions relating to any inland water into which any of the proposed discharges may be made."
    The Amendment goes on in its second provision to refer to
    "all statutory water undertakers appearing to the river authority to be entitled to abstract water from any inland water or underground stratum at places at which it appears to the authority that the flow, level or quality of the water may be affected by any of the proposed discharges."
    6.45 p.m.
    It is in connection with the words "appearing to the river authority" that Amendment No. 7 differs from Amendment No. 8, which stands in the name of my right hon. Friend the Member for Thirsk and Malton (Mr. Turton), for if we were to set out specifically that this notice shall be served on certain authorities whose functions do certain things or who may be affecting certain inland waters, it is possible that the river authority's opinion might be different from a court's opinion as to what authorities are included within that category.
    I have deliberately left it in my Amendment to the opinion of the river authority as to what authorities may be

    683
    the right authorities to serve with a notice. I do so because I want to avoid the danger of the whole proceedings being invalidated by a court later saying, "This particular authority had functions which related to the inland water with which you were dealing and you should have served a notice on that authority." In that event, we would have to start all over again.
    I do not think it likely that a river authority will go wrong on this. I am sure that hon. Members will join me in relying on the opinion of the river authority as to which of these kinds of authorities described in the Amendment should be served with a notice. This is certainly imposing on them a greater duty than would have been the case under the Bill as originally drafted, but I believe this to be the right course, having regard to the points made by hon. Members, and particularly by the hon. Member for Birmingham, Small Heath (Mr. Denis Howell), in Committee.
    Mr. Turton: I am not as happy with this Amendment as I was with the last, mainly because of the words "appearing to the river authority". In a recent case a large reservoir was proposed and the local water authority learned that one of its abstraction points would be inundated by it only after the Bill—in that case it was a private Measure—had got some way forward. I regret that this point has not been more clearly defined.
    Is it not possible for the Minister to make the position absolutely clear by instructing river authorities that they must notify all statutory undertakers in whose areas a discharge point is located and from which water is to be abstracted? I am sure that a clearer form of words could be found. Indeed, I would have thought that the wording in my Amendment would avoid mistakes being made.
    Will my hon. Friend give the matter further thought? The Bill has yet to go to another place. Between now and then he might be able to find a form of words which will be somewhat more binding than those in Amendment No. 7. However, I am grateful for the way in which he has met the remarks that were made in Committee by myself and a number of hon. Members. We pressed him for proper notification and we are bound to
    684
    be disappointed at the weak type of language used in the Amendment.
    I do not understand why the Minister insists on talking about "stratum". What is wrong with "strata"? This is new terminology to me. Water is usually found in strata and not a stratum. If my hon. Friend wishes to be pedantic, that is up to him and I will complain no further. I ask the Minister to look again at the words "appearing to the river authority". It might mean a rather recalcitrant river authority making the same mistake as in the past of not notifying the statutory water undertaker early on, and that makes it very awkward.
    Mr. Spearing: I confess that yet again I have some sympathy with the point made by the right hon. Member for Thirsk and Malton (Mr. Turton). At the same time, I can see that the Minister wishes to guard against a complicated scheme being held up by a relatively small point. I am grateful to the hon. Gentleman for accepting the sense of the Amendment which stood in my name in Committee and incorporating it in paragraph (b) of the Amendment before us.
    This matter primarily concerns navigation, harbour and conservancy authorities. These authorities will be concerned more often than not, if not always, with tidal waters. It was to protect their conservancy function regarding their waters that the Amendment was originally made. Where a natural inland river discharges into a tidal river, creek or estuary, the quality of the water being discharged is of great significance to the harbour or conservancy authority concerned.
    I concede that in this case, with the discharges which we have in mind, the quality and quantity of the water, for which there is already statutory provision, may be increased and that, rather than cause these harbour or conservancy authorities any great trouble, it is probable that any increased discharge will make their problem a little easier. Nevertheless, it is right that they should automatically get a notification of changes in discharge. They will then have a forward-looking picture. We all know that the Bill, in relation to another piece of possible legislation in the next year or two, may change the structure of water movement throughout the country because rivers will be used more for

    685
    transfer of water from one place to another rather than pipelines.
    I am grateful to the Minister for having incorporated these safeguards in his Amendment. However, I understand the caveat which he has put in, which is the only difference between this Amendment and the one I originally moved in Committee.
    Mr. Denis Howell: My hon. Friend the Member for Acton (Mr. Spearing) properly expresses his appreciation to the Government for ensuring that when a river authority applies for an order under the Bill, navigation, harbour and conservancy authorities get proper notification.
    The Minister will recall that my concern in Committee related to statutory water undertakers, as did that of the right hon. Member for Thirsk and Malton (Mr. Turton). I know that the statutory water undertakers will be grateful for the extent to which the Minister has met their point. They are now written into the Bill and have the right to see any such notifications.
    I agree with the right hon. Member for Thirsk and Malton that when we look at the words which the Minister has found to meet our point, at first sight it seems surprising that this right is limited by the unfettered discretion of the river authority. I listened to the Minister with interest and I appreciated the dilemma in which he found himself about having these matters determined by the courts. If this is thought to be a matter of difficulty, then he has made the best of the situation.
    The whole matter turns on whether river authorities can be expected to play the game. Whilst there has been the odd case—important, even if odd—where it has not happened, I prefer to think that river authorities are responsible bodies which will always give the statutory water undertakers the requisite notice if they are convinced that they are concerned.
    I am sure that if an instance occurs where that does not happen it will be through inadvertence, not deliberate intent, on the part of the appropriate river authority. In any case, the Association of River Authorities, which has from time to time been briefing me and, I imagine, other right hon. and hon. Members who took part in the Committee
    686
    stage, is willing to give the appropriate guidance to its members to see that the Amendment is implemented in the spirit as well as in the letter. The long stop is that, if the worst fears of the right hon. Member for Thirsk and Malton are ever proved accurate, the Minister, or his successors, would want to take an early opportunity of expressing a view and having another look at the situation. I do not think that that will happen. I think that the river authorities will notify all the statutory bodies. In that confident belief, I support the Amendment.
    As this is the last opportunity we shall get before the Bill goes to Third Reading, I should like to say that this has been a very agreeable Report stage, not least because of the Minister's attitude. On behalf of the Opposition, I should like to express our appreciation.
    Mr. Graham Page: With the leave of the House, I should like, first, to deal with the point raised by my right hon. Friend the Member for Thirsk and Mallon (Mr. Turton). I think that the singular "stratum" is right, not the plural "strata", when it comes after "inland water". If it had been "inland waters" then "underground strata" would be right. Anyway, everybody seems to know what it means.
    Adding these paragraphs to the Clause as it stands will draw the attention of the river authorities to the fact that they must apply their minds to this matter, even if they have to service notice only to authorities which appear to them to be doing something. They must consider whether those authorities appear to be doing it and whether they should serve them with notice. I am confident that the right people will be served with notice by calling attention to it in the Bill.
    I am grateful for the kind words of the hon. Member for Birmingham, Small Heath (Mr. Denis Howell). It has been a happy Bill and I think that we have been constructive. Thanks are due to the Opposition, led by the hon. Member for Small Heath, for the way in which they have helped by putting forward constructive points. I hope that we have now got the Bill in a form which will be helpful to all concerned. I am grateful to those who have helped to put it into shape.
    Amendment agreed to.
    Further Amendments made: No. 9, in page 5, line 6, after 'to', insert:
    'the period of twenty-eight days referred to in'.
    No. 10, in page 5, line 7, after second 'to', insert:
    'the period of six weeks referred to in'.—[Mr. Graham Page.]
    Motion made, That the Bill be now read the Third time.—[Queen's Consent, on behalf of the Crown, and Prince of Wales's Consent signified]
    Question put forthwith pursuant to Standing Order No. 56 (Third Reading), and agreed to.
    Bill accordingly read the Third time and passed, with Amendments.

  AIR TRANSPORT AND TRAVEL (INDUSTRIAL TRAINING LEVY)
  7.0 p.m.
  Mr. Paul B. Rose: I beg to move,
  That an humble Address be presented to Her Majesty praying that the Industrial Training Levy (Air Transport and Travel) Order 1970 (Amendment) Order 1971 (S.I., 1971, No. 496) dated 23rd March, 1971, a copy of which was laid before this House on 31st March, be annulled.
  There are a number of reasons why I believe that this debate should take place in a period when there is no little anxiety about the future of industrial training. It is unfortunate that the debate has fallen on the day of the borough elections, and that, as a result, the question is being ventilated to a House that is less full than one might expect.
  First, there is increasing concern at the blanket opposition by mindless and self-interested individuals, unfortunately reflected in some of the sentiments that have been expressed in this House. Many of us have seen or received stickers entitled "Abolish industrial training boards. Parasitical and Inflationary". I hope that in dealing with some of the schemes and achievements in air travel the Minister will put paid to that sort of nonsense.
  Secondly, industrial training has taken a back seat in the House recently, because industrial relations have been at
  688
  the centre of the political stage. Thus, when the Government announced, on 5th April, their intention to wind up the Hairdressing and Allied Services Industrial Training Board they did so by means of a written reply, without any explanation.
  Thirdly, this order deals with the grant levy system in two industries of growing importance. In the air transport industry the importance of a high level of attainment in training cannot be over-emphasised. Those of us who are laymen, with no technical knowledge, but who have read of a recent near-miss over Heathrow and of the complexity of flight deck operations when taking off from an airport like Heathrow, can be in no doubt of the importance of training in this industry. It is essential that an adequate supply of training vacancies is available to provide enough skilled workers for future needs.
  One thing that emerges from the report of the industry is that the age structure of the industry is such that the need for these skills will increase, especially among younger personnel, while, at the same time, men who are capable of learning to do a job should not be permanently excluded from obtaining new skills merely because they happened to miss the opportunity at an early age. The type and quality of training arranged by the Board, and individual schemes which are not detailed in the annual report, will be of interest to the House. I hope that the Minister will say something about them. I also hope that he will be able to say something about the grant/levy set-off dealt with in the order.
  Fourthly, it is proposed that travel agents and tour operators should pay a 1 per cent. and not a 2 per cent. levy, but the annual report made it clear that the inclusion of travel agents and tour operators within the scope of the board is an event of so recent occurrence that no real consideration of the training needs has yet been possible, although developments may well have taken place since then. Although establishments of a small type may be left out of many other industrial training schemes—and one appreciates the need for that in respect of other industrial training boards—I am not happy about the 1 per cent., or about the limit of £10,000 in emoluments laid down in the order.

  689
  If there is one set of establishments in which training is necessary, not only for the industry but for the protection of the public, it is in this industry, in respect of travel agents. It is an industry in which before dealing with the question of industrial training, I collected a whole dossier of complaints which I submitted to the Department of Trade and Industry. Certainly industrial training in the travel and tour business is the other end of the spectrum of consumer protection for the holidaymaker. I therefore ask the Minister why he considers that a figure of 1 per cent. should apply as against 2 per cent. for the air travel industry.
  Nevertheless, it is encouraging that these problems are being considered in the context of paragraph 7 of the annual report which says that
  "The Air Transport and Travel Industry Training Board enters a new decade with an improved capacity to assist the industries which it now serves to meet the training problems of the 1970s."
  That should encourage the Minister and the House to persevere in spite of the opposition of those who seem to see red at the very idea of industrial training.
  The manpower planning survey demonstrates the need for increasing training facilities for the young, in particular because of the age structure of this industry. Having read the report, I am concerned why the amount of grant for training of fire and rescue staff appears to be so low. There may be an explanation.
  I congratulate the board on the manner in which it was able to continue the training of the British Eagle apprentices. That was a great achievement by the board. A great deal can be learned from the international co-operation that has taken place in this respect. It is possible to learn a good deal from foreign experience.
  The levy on payroll may well be an example for many other industrial training boards, as with the set-off of grant against levy due. These are two methods by which administrative expense and complexity can be cut down. My hon. Friends and I are as concerned as anybody to cut down administrative costs, but such costs cannot be made the pretext for an assault on the whole concept of industrial training. These two methods may be a key to cutting down the admini-
  690
  strative costs of industrial training boards. Here again, I should appreciate an explanation from the Minister of the differential between the 3·8 per cent. for British air carriers and 2 per cent. for the remainder of the industry, while the order recommends the lower level of 1 per cent. for tour operators.
  There is no doubt that there is at least as much room for improvement in the training requirements of the travel agencies as compared with the airlines. The percentage should have been at least 2 per cent. in respect of the agents. I understand that that was the unanimous recommendation of the board to the Minister, and that the Minister overruled it. There is nothing in the footnote to the order to convey that impression; in fact, precisely the opposite impression is gained. The Explanatory Note says:
  "This Order gives effect to proposals submitted by the Air Transport and Travel Industry Training Board".
  The Minister, intentionally or otherwise, has misled many of us into believing that this was the view of the board rather than his view. My information is that he overruled the unanimous view of the board.
  If my information is correct, when we receive future orders of this kind—and not a few have already passed through my hands this session—I shall no longer be able to accept the Explanatory Note which says that the order gives effect to proposals made by the individual board. I may have to pray against further orders unless it is made clear whether the decision is that of the Minister or of the board.
  The overruling of this recommendation by the Minister means that the board has lost its independence of action. It is expected to be a rubber stamp. The Government knew that the board had been overruled and yet they have not told the House. It is only because of information that has come into my possession recently that I am in a position to state with authority that the board was overruled in this way.
  The small travel agent, above all, needs more trained personnel and higher standards. Looking at the travel industry, the lack of inspection of overseas hotels, for example, is something that causes a good deal of concern. I have personally run up against some bad experiences

  691
  here. One meets couriers quite unable to cope with the problems facing them abroad because they have not been properly trained and are unaware even of the geography of the area they cover. We know of a quarter of a million holiday-makers last year whose travel arrangements had to be rearranged at short notice, a matter of concern for both tour operators and agencies. There is a lack of frankness in public relations on the part of the travel agency industry; there is an amateurish approach by many travel agents and an arbitrary attitude adopted by many operators.
  One of the causes for complaint is over the lack of machinery for dealing with complaints—a multitude of them about travel agents and tour operators. I draw here from my own dossier for examples of this. There are many matters which are capable of improvement, quite apart from questions of registration and the rest, which can be helped by industrial training if it is taken seriously by the travel agents and if they will show a willingness to help themselves and their customers to a far greater extent than they have shown in other respects.
  In the long term it might well be possible to work out a more equitable costing method to cover all the Board's operations. I do not believe in being dogmatic about these matters with regard to the amount of grant and levy. This is a matter for the board to work out. In the meantime, like members of the board, I see no reason for the differential. Certainly the trade unions concerned are strongly opposed to the growing pressure on the board to reduce and do away with levies even to the extent—and this is happening with regard to this and other boards—that arguments about reducing the cost to employers are beginning to take precedence over the real job of improving industrial training. The Government should recall once more the Prime Minister's speech immediately before the election at Ayr about industrial training.
  They should also remember the Act which they set in motion and of which they have every right to be proud. This Act set certain tasks for the training boards and it was entirely endorsed on this side of the House. We want to see a continuing review of training methods
  692
  and a cutting down of administrative costs. This is a very different matter from cutting levies merely to appease people in industry and in this case to appease the travel agents whose reputation and whose standing, certainly if my dossier is anything to go by, leaves a good deal to be desired. An enthusiastic response to industrial training by A.B.T.A., for example, would show a welcome change of heart in the industry.
  The exemption of smaller firms is even less comprehensible than the question of the levy because whereas smaller firms may well rely on the larger firms to meet their labour requirements or, in the alternative, do their job inadequately, at least the larger travel companies tend, in their own interests, to do a good deal of training. I find the omission of the smaller firms together with the reduction to be two matters which cause me a great deal of concern.
  As a consequence, there are thrown on to the airlines duties which are really the duties of the travel agent and for which the travel agent obtains commission. Yet again, the Minister has exempted precisely those groups which need to participate in industrial training, which need to train their employees. As a result of all this, the Minister's actions have denigrated those public-spirited men and women who devote time that they can ill afford to participate in the work of the industrial training boards.
  I should like to know when the Minister will say something about the determination of training recommendations in the training industry. There is a serious danger, certainly with this Industrial Training Board, if not generally, of doing what the Government have done to the Commission on Industrial Relations, namely, to force the trade union side out because it will not act as a rubber stamp. How long can people go on trying to increase efficiency and to provide the requisite number of skilled operators for future needs if the Minister capitulates to the pressures of the philistines and of the self-interested?
  Mr. Kenneth Lewis: Dear me.
  Mr. Rose: The hon. Member says, "Dear me". I can only suppose that he is among the philistines, those who produce documents of this kind which say

  693
  that the industrial training boards should be abolished altogether. I hope that the Minister will not capitulate to that kind of pressure.
  Mr. Kenneth Lewis: I could be at home tonight, but I am interested in industrial training. I was on the Committee on the original Bill. I am also here because I am interested in this business. For the hon. Gentleman to talk in terms of philistinism in relation to travel agents, and the association of British Travel Agents in particular, which is what he has been doing, is the most utter exaggeration. The work that has been done in this area by A.B.T.A. and the whole airline structure, private and national, is, as the hon. Member well knows, considerable.
  Mr. Rose: I appreciate the hon. Member's speech but I think he has misunderstood me. If I gave the impression that capitulation to the philistines meant capitulation to A.B.T.A. then I gave the wrong impression. What I was referring to were the people who are putting out this sort of leaflet which I have here, and which is an example of the pressure on the Government to abolish industrial training boards altogether. I am not suggesting that those who participate in this set-up are doing that, and I hope that the hon. Gentleman will accept from me that if that was the impression I conveyed, it was not the impression intended.
  I draw a sharp distinction between those who, perhaps out of self-interest, wish to cut down the levy they pay—they are perhaps the self-interested—and those to whom I referred as the philistines, who do not accept the need for industrial training. If the hon. Gentleman's intervention has helped me to clarify that, I am grateful to him.
  When does the Minister intend to publish the training recommendations? Is he willing to take the risk—and it is a risk—of destroying a board like this by forcing out trade union representatives who cannot accept decisions taken in their name by the Minister? I know there is a strong feeling that they may well take drastic steps if they are treated as a rubber stamp and have no channel through which to express their feelings as to that ultimate decision about the grant and levy system. I hope that the Minister will consider this carefully. Is he willing to take such a risk? One of the positive
  694
  features of the 1964 Act was the new rôle of the unions in the shaping of training policy and administration. This pressure on employers can be valuable in creating a consciousness of the need for training. There are many employers who see the need for training and one can cite the report of the Engineering Industry Training Board and many similar examples. In regard to the air transport industry, the Minister is putting the corporations at risk.
  There are many general matters which could be discused, but I would not wish to stray beyond the terms of the Order. The Government appear reticent over this matter. They have not yet announced a date for a debate on the whole question of the future of industrial training boards, although I asked for such information in a business question some three weeks ago.
  It will be the policy of the Opposition, in selective cases, to pray against Orders such as this, as we have done in regard to orders on the Vehicle and Road Haulage Industry Training Board and the Hairdressing and Allied Trades Industry Training Board. We shall pray against such orders when we feel that they raise legitimate matters of concern. This matter is of concern not only to members of the board and of the industry, but also to the House and to the general public.
  I hope that the Minister in reply will deal in some detail with the points which I have raised and will say why he thinks it necessary to over-rule the unanimous view of the board on the levy and exemptions.
  7.22 p.m.
  Mr. Robert Taylor: Since I arrived in this House in June last year, I have watched with interest and care all aspects of Government involvement in industrial training. The smear that is levelled against those of us who oppose Government industrial training that we are against industrial training does not stand up to the test. I have been for 12 years a director of a company whose standard of industrial training has been exemplary and has been so regarded in the particular industry concerned. Therefore, the frequent attacks on those of us who are involved in industrial training that we have no interest in training should be refuted.

  695
  I am surprised to find that this Prayer is on the Order Paper, because the Statutory Instrument to which it refers is one of the least offensive of those Orders on industrial training which have been before the House. I am even more surprised that the Prayer should have been tabled by the right hon. Lady the Member for Blackburn (Mrs. Castle) and the hon. Member for Manchester, Black-ley (Mr. Rose), both of whom I consider to be united by a dogmatic zeal to foist on every industry training for the sake of training, irrespective of whether that training is useful, necessary or even helpful.
  I have been interested during the past week to contemplate their reasons for wishing to put down this Prayer. Now we know. What has upset hon. Members opposite—
  Mr. Cranley Onslow: There is only one there!
  Mr. Taylor: Yes, there is only one present. What has upset the Opposition is that the levy has been halved from 2 to 1 per cent., and secondly, that the cut-off figure has been left at £10,000. In other words, they believe the higher the levy the better the training. Similarly, with their philosophy that the higher the taxes the better the country, they believe that the most efficient training methods are those which seek to catch the smallest possible fish in their net. It is interesting to note that the report quoted by the hon. Member for Blackley of the particular training board which is the subject of this Order states that it wrote off £1,000 of levy in the first levy period as not being worth the cost of collection, yet at this time the board was dealing only with civil air transport and was levying 263 companies.
  The hon. Gentleman appeared to want the same board to be responsible for levying all the small travel agents. First, the board would have to sort them out, then find them, and would then have to levy them. At the proposed rate of levy in the Order, the maximum amount such a firm would have to pay would be £99. If such a sum were levied at the rate required by the hon. Gentleman, the maximum amount would be £198. Then there would be ail the paraphernalia involved in filling in forms and claiming
  696
  back the grant. This would be bureaucracy gone mad.
  The Board which is the subject of the Order was formerly the Civil Air Transport Industry Training Board. As such, it must be admitted, it did very useful work, and I agreed with the hon. Gentleman when he cited the example of the British Eagle apprentices, which was an excellent result of the board's efforts. The Civil Air Transport Industry Training Board enjoyed the good will of the firms which it was levying, but suddenly on 11th March last year the previous Administration, in a moment of supreme folly decided that travel agents were inefficient and that what was needed was an industry training board to put them in order. What more natural for that Government than to link travel with aeroplanes! Therefore, the name of the training board was changed to the Air Transport and Travel Industry Training Board. As a result a highly successful and technical training board then had to sit down and fathom out a way in which to tell the efficient industry how to become more efficient.
  If anybody doubts that this action by the Labour Government was precipitate or was a case of instant government—of which we were warned we should have a great deal—or if anybody doubts that this was a case of acting first and thinking afterwards, I would quote exactly the same paragraph as did the hon. Gentleman from the current report and accounts of the board, paragraph 6 says:
  "The inclusion of travel agents and tour operators within the scope of the Board is an event of so recent occurrence that no real consideration of the training needs has yet been possible. Much work of an administrative nature will have to be undertaken initially in connection with this extension of scope and concurrently the training position and needs will be surveyed and evaluated."
  If that means anything, it means that no survey and no evaluation of whether this industry needed Government interference by way of training took place before that Order was forced on to the industry.
  If this levy is approved tonight, at either 2 per cent. or 1 per cent., it will place an immediate obligation on the board to provide training for travel agents and tour operators. Although we have heard from the hon. Gentleman that in his opinion many travel agents are

  697
  inefficient, we have not been told what form of training the board should give to make them efficient. It is suggested there should be more inspection of hotels abroad. Nobody could doubt that—but is a training board in this country the way to organise it? What help a training board of this nature could give to a service such as travel agents is to make sure that they run their business with the maximum efficiency at minimum cost and so increase their profits. This is one of the objects of all training boards.
  In the case of travel agents, nobody would suggest that a technical skill, such as that in the engineering industry training board is involved. If this is what the training board will set out to do, it will presumably follow the previous pattern of other boards and appoint its own officers to help individual firms. The duty of these training officers must be to bring the most up-to-date methods to each of those establishments to every firm that pays the levy. If the training officer goes to one firm which is extremely efficient and well-managed, he will discover the way in which efficiency has been attained. If he is to do his duty to the other establishments he visits, he must teach them this efficiency. This will be wrong because it would penalise the efficient firm. In a week in which we have heard my right hon. Friend the Prime Minister say that there is cause for alarm about the leakage of confidential information, it would not be right to approve a situation which envisages more officers going into more businesses to get more information.
  I wish to put two questions to my hon. Friend the Minister of State. It is well known that in Carlisle the State pubs do not pay any levy to the Hotel and Catering Industry Training Board. I am not sure why. Presumably, it was that the previous Government thought that if the State ran them they were run to the maximum efficiency. Will this procedure be continued under this Order with the State travel agents, such as Thomas Cook? Should they not be treated in the same way as other travel agents? If the answer is that Cook's will pay, what is the logic of State travel agents having to pay when State nubs do not? Secondly, in taking the figure of £10,000 as the cut-off figure, beneath which firms do not have obligation to pay levy, I
  698
  would ask whether there is included in that figure the salaries of directors of limited companies. If the answer is "No", should we include the salaries of directors of unlimited companies and also the salaries of partners? This is very important, since there has been trouble in other training boards about the compilation of that figure.
  I am very glad that the hon. Member for Blackley, who alone remains on the benches opposite, is unlikely to divide the House on this Prayer, because I should find it very difficult to support this Statutory Instrument. It is wrong that travel agents should have this levy inflicted upon them. The board represents an area of industrial training which the Government are jumping into and which they could have escaped, since the board has not really commenced operations. In addition, the board itself would be much happier to be left looking after the civil air transport industry.
  Mr. Rose: Then will the hon. Gentleman explain why a member of the board has said that the board unanimously opposed the reduction or exemption of travel agents from the levy but that this was overridden by the Minister? The board does not seem very happy at all.
  Mr. Taylor: In my view, the fact that it had such great difficulty in dealing with small firms when it was dealing with only 267 must substantiate that it would have a much more difficult exercise in dealing with the many thousands of small travel firms up and down the country.
  7.38 p.m.
  Mr. Cranley Onslow: I shall be very brief, mainly because I cannot bear the sight of the solitary figure of the hon. Member for Manchester, Blackley (Mr. Rose) sitting on the belches opposite in ignominious isolation.
  Mr. Rose: I am quite happy.
  Mr. Onslow: That may be, but it does not look so good to see the hon. Gentleman as the sole adornment of the benches opposite.
  The hon. Gentleman warned us against mindless opposition to training boards. Perhaps I might warn him against mindless support for them. If he thinks that

  699
  he has picked the best possible grounds on which to support training boards, he is wrong. If he thinks that the instance that he gave us about the value of training in civil aviation justify the existence of this board, he is wrong again.
  It is much to the credit of the board that it was able to come to the rescue of the British Eagle apprentices. However, if he reads the board's report, he will find that the board was able to do it only by accident and quite without planning. It set aside money for group training for which there turned out to be no demand. As a result, it had some £40,000 in the kitty which it had levied and did not require. When British Eagle found itself in difficulty, the board was able to rescue its apprentices with the aid of that money.
  When the hon. Gentleman says that it is vital to have a training board for this industry because it is important to have training standards, does he suppose that the importance of training in the civil air transport industry was recognised only when the board was created? Does he suppose that the expenditure on training in the industry has been maximised as a result of the board's creation and that, before it, it was less than the sum levied by the board? He knows that that is not so, and that this is an industry where training is essential to survival. It is one in which innovation is constant. Operators have to keep themselves and their staffs abreast of techniques if they are to survive.
  Does the hon. Gentleman suppose that, if it were not for the board, there would not be training over a wide range of specific occupational areas including clerical staff, airline flying instructors, student professional pilots, air traffic control staff, aircraft tradesmen, fire and rescue staff, managers and supervisors, training instructors and air cabin crew, and all the others set out in the Employment and Productivity Gazette for June, 1970? If the hon. Gentleman imagines that these are new areas for systematic training and development schemes, he has wasted our time.
  If the board were to move altogether out of the business of civil aviation training and levying, its departure would not be regretted by any of those who at
  700
  present are obliged to contribute to this body from their scarce resources, especially when one remembers that the board passes its levies back to refund some of the expense of training which is already undertaken. If any operator is getting less than he pays, it is merely because he has inefficient clerical staff working for him.
  Turning to the Order, I want to ask my hon. Friend one or two questions. First, will the sums levied be spent exclusively in the areas in which they are levied? I should hate to think that there was any cross-expenditure going on, because that would be quite wrong. The House might like to know what the estimated yield of a 1 per cent. levy on the air travel industry is expected to be. I do not think that we have been told. I am not sure whether the hon. Member for Blackley asked, but the House might like to know. As it is evident that the board does not know how it will use a sum of money which we ourselves do not know, perhaps my hon. Friend can give us some idea of the board's thinking.
  It may seem to the users of the industry, the people who book through travel agents and who look forward to this period in the year as the highlight of their experience, that their chances of getting value for money are more likely to be advanced by sticks rather than by carrots. I believe that the Trade Descriptions Act has probably done more to improve value for money in this business than the board is likely to. The bonding scheme amongst travel agents is more likely to provide security than is this board. We are deluding ourselves if we think that the board will make a significant contribution in that direction. This is a highly competitive industry. It may be one in which there is greater need for consumer protection. It may be one in which inefficient operators can find themselves in great financial difficulty. But I do not think it is sufficient to say that if only they had better clerks, telephonists, or whatever it may be, working for them, we should find the prospects of members of the public enjoying their holidays on the Costa Brava substantially improved.
  This Order will not get to the root of the problem, and I do not think that there will be a great sigh of lamentation in the land if this board is swept away.
  7.45 p.m.
  Mr. Kenneth Lewis: When I look at the benches opposite, I hope, though it is a hope which may not be shared, that everyone has not gone off on a package tour. The absence of hon. Members opposite shows that training has had some effect. Presumably many of our colleagues are out working at the borough elections.
  Listening to the hon. Member for Manchester, Blackley (Mr. Rose), I found myself agreeing with a large part of his speech. However, I disagreed violently with some of his more turbulent and exaggerated language, which I thought that he uttered to make the tabloid Press tomorrow.
  Mr. Rose: Will the hon. Gentleman accept that nothing of this debate will appear in the tabloid Press tomorrow, because of the outstanding Labour gains which will be the main subject of the headlines?
  Mr. Lewis: We shall see that when it comes.
  Mr. Onslow: On the funny pages.
  Mr. Lewis: The hon. Gentleman's party has a great deal of ground to make up to regain what it lost the last time that it went to the country in the borough elections.
  I enjoyed the speech of my hon. Friend the Member for Croydon, North-West (Mr. Robert Taylor), though I did not agree with his conclusions. If the Government accept the principle of training boards—and, after all, we introduced the Act—they must be in some difficulty in dealing with this training board. No one suggests that we should abolish existing boards. However, we should ask ourselves whether certain people should be allowed not to opt into training. If we have an aviation training board, should it be extended down the line, or confined simply to aviation? I think that, if travel agents were allowed to escape from this training board, the results would be that the one part of the industry which is growing would be outside its scope.
  I have to express an interest in this matter. As hon. Members know, I have a travel agency and, in a voluntary capacity, I serve as chairman of one of the
  702
  British Travel Association committees. We do not suggest that travel agents should be allowed to opt out. We have met the training board and have expressed the view that we should go in. We were enthusiastic about going in. We even accepted that the small man should go in.
  I accept what the hon. Member for Manchester, Blackley says that it is the decision of the Government that the small man in this case should opt out. In general terms, it is the small man who has caused complications and created the bureaucracies in industrial training. All the difficulties which have been expressed about other training boards have been related to the small people. In this connection, perhaps I may quote from a report by the Small Businesses Association, which has been collecting views on training. It says:
  "From the outset the Boards functioned for big firms, and the contribution from the small was simply to pay the piper. More recently, most Boards have seen this and have made efforts both to exempt small firms from levy and to allow realistic participation in training schemes."
  Clearly the Minister has a problem when he brings a new group into a board. He has to decide how far down he goes. He can always widen the scope of a board later if he feels that it is necessary.
  In this case, on balance, I would come down in favour, although the Association of British Travel Agents does not altogether accept my view. There are powerful figures, such as the chairman and the ex-chairman, who have reservations about not bringing in the small man.
  I think that it is right to ask my hon. Friend to press on with his inquiry into training boards as a whole and, if possible, to present his findings before the end of the summer. This report will be important to any new board which is advancing as this one is. The sooner that we get the views of the inquiry, the sooner boards will be able to set trends and to provide administration on the right lines. Therefore, I hope that this will be produced in time for the House to have a debate on it, and in time—say, by the autumn—for boards to take account of what the review has said, and to enable the Ministers and the chairmen of the boards together to decide on new patterns for the future.

  703
  The criticisms of training boards, made both in the House and by business outside are based on difficulties that undoubtedly exist. It is no good pretending that they do not. The only way in which we shall dissolve these criticisms is if, having got the review, the Minister and the boards take action to improve the situation.
  Two questions are important in this connection. First, does the grant system give the necessary quantity and quality of training? This can be answered only when we have the results of the inquiry. Second, is the money going in the right proportion to the varying skills—management right down the line? I ask that question of all boards.
  The question which arises on this Order is one of who trains—whether it should be just the big boys or the big and medium boys, or whether it is right that the Minister has chosen to miss out the smaller agencies. The big companies have always trained—for example, the airlines have to train because their business is vast and they need the skills. The small man also trains, because he trains on the job. In this business, as in others, the smaller man who trains one man alongside him probably gives him a better training than we would receive on one of the courses provided by whatever college or training board schemes are available to him.
  The big operator trains, and the very small man trains. The man in the middle, running a modest, medium-sized business, is the man that probably misses out most of all, because he depends on his staff to train those below and the staff are not so interested as he is.
  The Minister has chosen to miss out all who have a payroll of less than £10,000. It might be useful to look at this, because £10,000 is a comparatively small payroll. The Minister, it will be proved at the end of the day, will catch through the Order every town with about 100,000 population, because travel agencies in towns of about 100,000 population will have a staff that runs to a payroll of more than £10,000. There are the manager, three clerks, two typists and a bookkeeper; their wage bill is £10,000 or more. It all depends on whether the proprietor himself, who depends partly on salary and partly on profit, is included
  704
  on the payroll. Even if he is not, it is clear that any modest-sized business is paying on that kind of payroll.
  Below that amount—and the hon. Member for Croydon, North-West made the point which I had noted from the report—the administrative costs of collection are greater than the money collected. The point made in the training board's report was that a £1,000 collection is too small, and only £100 would be collected at lower level if all travel agencies are included.
  I believe it is a good thing in the long run that there should be an extension of training in this field. I do not agree with the hon. Member for Blackley that the industry—and here I took down his words—is "arbitrary" in the way it deals with the public, and has a lack of machinery for complaints. There is a perfectly good machinery for complaints. Both the Association of Travel Agents, and almost all the big operators, have their own machinery for complaints. The business has provided the British public in recent years with opportunities to home holidays that were available only to the very rich, to millionaires, almost, before the war.
  It has been a fast-growing industry. Of course, it has had its troubles. There have been difficulties for the public because of these troubles, but they have been infinitesimal in comparison with the happiness provided by the growth of travel. The good holidays are obviously greater in number than the bad ones. This business needs to provide the public with a good service. It is seeking to do so. It believes in training, provides ideas in training and has had courses for many years. I support the Order because I think it will bring about some measure of advance in training within the industry.
  7.56 p.m.
  The Minister of State, Department of Employment (Mr. Paul Bryan): Before trying to answer the case put by the hon. Member for Manchester, Blackley (Mr. Rose), I should like to say something about the problem of the small firm in the training board system. Unless we understand the general problem it is impossible to get the position of the industry and its Board into perspective. That was clearly recognised by my hon. Friend the Member for Rutland and Stamford (Mr. Kenneth Lewis).

  705
  A few weeks ago a decorator employing about half-a-dozen men complained to me that he was getting nothing from the Construction Industry Training Board in return for the levy he was paying. His staff consisted of half-a-dozen mature, well-trained men who had been with him for years. His labour turnover was negligible. He had a high reputation in the district for the quality of his work, and was never short of work. He had no need for the courses produced by the board, and anyway he could not spare a man to attend them. He had no time to fill in all the papers submitted to him by the board. He claimed that his own training system had clearly been proved adequate by the results, and that no elaborate records were required. That instance personifies one of the big problems the training boards are constantly up against.
  The definition of a small firm varies from industry to industry. The problem presents itself in 27 different ways to the 27 different training boards. No general definition can apply generally. But the overall picture is that those grants and services that small firms can receive from the boards do not seem to offer a reasonable return on the levy paid. The boards are well aware of these problems, recognise how difficult they are to solve, and try very hard to solve them.
  A number have introduced special grant schemes for small firms, providing services specially geared to their needs. Some have successfully encouraged the development of group training schemes where firms co-operate in organising their training with skilled advice. But even where training boards have been able to provide special services to small firms, many of them have recognised that they cannot offer enough to the very smallest. Even before we started our review many of them had already decided to exempt the smallest firms from levy. Sometimes now some of the small firms are given services without paying a levy at all. The Engineering Training Board does that. It finds it cheaper to do it that way rather than to spend a great deal of money collecting small levies, so expensive is it to collect levies from thousands of firms. Some boards allow exempted firms to opt into grant and training schemes on payment of a minimum levy. However, despite all the ingenuity shown by the boards to meet the problems of the small
  706
  firm, the fact remains that, with encouragement from my Department, more and more boards are exempting more and more small firms from the scope of the levy.
  Out of 27 boards, only six have no exemption provision for small firms. Three of them, gas, electricity and water, obviously have no small firms in their industries. In the last six months, four boards have decided to exempt small firms. The biggest of these are the construction and road transport boards. The Construction I.T.B. in its current levy proposals, wishes to exclude firms with payrolls below £6,000, but even at that low level this will take 23,000 firms out of levy, getting on for half the total; half the total of the firms but only 4 per cent. of employees covered by the board. The Road Transport Board is discussing with its industry a proposal to exclude firms with payrolls below £5,000. This would take out some 30,000 firms, or 60 per cent. of the total; but again, only 8 per cent. of the employees.
  The conclusion that we draw from this is not that small firms have no training needs whatever. They clearly do, as does every firm. But the training boards' levy grant system has not proved an effective instrument for meeting small firms' problems. This is an interim conclusion based on the progress so far of our general review of training boards, and we shall be making our final recommendations on this question when we issue the results of our review as a basis for consultation. This will be in the autumn. In the meantime, some decisions have to be made. It would be folly to disregard the evidence that we have in making those decisions.
  Mr. Rose: I wonder whether the hon. Gentleman would say how far his thinking is going along the lines that where smaller firms, particularly, attain certain standards, as has been referred to, in that sort of case an exemption can be made from the grant levy scheme altogether, and whether this is one factor in this thinking which may get over some of the problems of bureaucracy and cost in trying to bring in the levy and totally avoid the levy schemes?
  Mr. Bryan: That is a point which I covered a couple of minutes ago. It is not for lack of effort on the part of the

  707
  boards that the small firm is still a problem, despite the steps that they have taken.
  I come to the hon. Gentleman's point. He asked me to account for the question of the Hairdressisng Board. We had already faced up to this question when we examined the first levy and grant proposals from the Hairdressing Board. Because of low rates of pay in the industry, the income from a levy of 1¼per cent. would have yielded enough income to provide only a very low rate of grants with practically no incentive effect. The board's operating costs, which were on a fairly modest scale, would have absorbed too large a portion of the levy income. But even this position was based on the board's proposition that no firms at all should be excluded from the levy. Hairdressing is an industry consisting very largely of small firms. The average firm employs only three or four people, and one-third of the employees are in firms which have a staff of three or fewer. We considered that some exemption of small firms would in any case be necessary on the grounds that I have already outlined, and it was clear that even a modest exemption, say, of firms with payrolls below £2,000 would have excluded so many firms as to make the board unviable. This led us to the decision to wind up the board.
  It was with these considerations fairly foremost in our minds that we examined the Air Transport and Travel Board's first levy and grant proposals for the travel sector when they were submitted for my right hon. Friend's approval in February. They provided for a 1 per cent. levy with no exemption, and a grant scheme which made special provision for firms with payrolls of £10,000 or less. These small firms were to be able to receive back in grant half the levy if they completed a relatively simple training plan, and the other half if they joined a group training scheme. Alternatively, they could receive grants for off-the-job training. Our general approach pointed to excluding the small firms but we considered carefully whether an exception was justified for this industry.
  Although the proposed grants scheme for small firms was simple, it still required a formalised approach to training which some small firms would find diffi-
  708
  cult, particularly as the board would not be making the services of their advisory staff available to these firms. It would be sanguine to expect all small firms to join a group training scheme at once. For small firms to release staff to go on courses is always difficult, and even in the off-season it was doubtful whether the limit on the grant available would make it worth the firm's while. There was also some evidence that, although the main employers' organisations supported the board's proposals, some small firms themselves would not endorse this support.
  Given that our review was going on and that this was a very first scheme, we thought that it would be extremely annoying for the small travel agents to be included this year, only to find that they were taken out next year. It seemed far better for the board to start with a smaller number of larger firms and to look again at the question of the very small firms when it had more experience of its scheme and when we had the final conclusions of our review. We therefore referred the travel proposals back to the board, explaining that, in accordance with our general policy, we wished it to provide for some exclusion of small firms. I confirm what the hon. Gentleman said, that this was a unanimous decision by the board.
  The board submitted revised proposals excluding firms with payrolls of £10,000 or less, and these revised proposals are embodied in the levy Order which we are debating. They take the form of an amending Order because the board's main levy Order, which was made in May last year, covers the two years which started in April, 1970, and which ended in March, 1972. The original Order exempted the travel sector from levy for the first year up to March, 1971, and the amending Order puts into the main Order the correct rate of levy, with the exemption of the small firms, for the current year.
  I now answer some questions put to me, and first those put by the hon. Member for Blackley. He asked why there should be a 1 per cent. levy for travel instead of a 2 per cent. levy for the other sectors of transport. This rate was proposed by the board, and it was regarded as appropriate because training costs are very much lower for the travel sector, since highly technical

  709
  skills are not involved. He also asked why the figure is 3·8 Der cent. for British Air Carriers compared with 2 per cent. for the other air transport activities, for example, airports, engineering servicing and so on. Again, the answer is that the high rates reflects the much higher costs of training for those highly specialised skills.
  My hon. Friend the Member for Woking (Mr. Onslow) asked whether sums raised by different rates of levy were spent in the same area, in other words, whether there was cross-subsidisation. There is not. He asked what the yield of 1 per cent. levy on the travel sector would be. It is £145,000.
  My hon. Friend the Member for Croydon, North-West (Mr. Robert Taylor) asked about the State nubs at Carlisle—which is a strange subject to wander into the debate, but I will give the answer. State nubs were not leviable because the Crown is not covered by the Act. On the other hand, Thomas Cook is a limited company; but, although Crown-owned, it is not Crown employment. In fact, there is a member of Thomas Cook's on this particular board.
  The hon. Member for Blackley spoiled his speech by saying that we were capitulating to our back-benchers—philistines he considers them to be. At least my hon. Friend the Member for Croydon, North-West is well informed and he attends debates, a comment which does not apply to hon. Members opposite. As regards capitulating, the hon. Gentleman surely must agree that when we came to power it was sensible for us to review the progress of an Act which had been passed by a Conservative Government, which had been working for six years and which had been developing at enormous speed, with no fewer than 27 boards in different stages of development. This was nothing to do with any pressure from any source.
  Mr. Rose: Is the hon. Gentleman aware that the review was started by the Labour Government and was merely continued by his Government?
  Mr. Bryan: Yes. We are now carrying out that review. The reason it will not be published in consultative form until the autumn is that we are making a much wider-ranging review. The whole
  710
  field of manpower is being covered—Government training centres, employment services, and so on. This is a serious exercise and has nothing to do with pressure from any quarter.
  As to the Secretary of State's power to approve a levy, we certainly agreed when the Bill was originally passed that the board should have the maximum autonomy; but I believe, especially in the light of experience, that the very least that the Secretary of State should be able to do is to approve a levy. This is not a question of rubber-stamping. If the hon. Gentleman argues that a levy must always be approved, it is ridiculous. The Minister's power would be non-existent. This is one of the ways in which the Minister puts across his policy. It is a load of tripe to say that by not rubber stamping every application for levy the Secretary of State is denigrating members of the board—and I hope that the trade union members whose services we greatly value will not think along those lines.
  Mr. Kenneth Lewis: If the Secretary of State had nothing to do with the levy, presumably there would be no need for an order to come before the House and there would be no parliamentary control.
  Mr. Bryan: That is well put. The attempt by the hon. Member for Blackley to put in doubt the zeal of my party for training is pathetic. The amount of effective interest there is in training in the two parties can be judged by looking at the numbers on each side of the House tonight, my hon. Friends heavily outnumbering hon. Members opposite.
  I accept that the coincidence of my right hon. Friend's setting out his interim guidance on this question just when the board had submitted its prepared proposals placed the board in a difficulty. However, the board received some forewarning from the Government's assessor about the position of small firms and it has considered at length whether to exempt them. Although the board's conclusion that such firms should not be exempted had the support of the major trade organisations, it must be accepted as an essential feature of the training board system that decisions on whether to approve the board's proposals rest under the Act with my right hon. Friend, who has to be satisfied that they conform with his general policy.

  711
  I think that I have answered all the questions put to me. I assure the House that the interesting points which have been raised will be noted. I ask the House not to accept the Prayer.
  Question put and negatived.

  AIR TRANSPORT AND TRAVEL (INDUSTRIAL TRAINING LEVY)

    RURAL WATER SUPPLIES AND SEWERAGE BILL
    Order for Second Reading read.
    Motion made, and Question put forthwith pursuant to Standing Order No. 66 (Second Reading Committee), That the Bill be now read a Second time.
    Question agreed to.
    Bill accordingly read a Second time.
    Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).

    RURAL WATER SUPPLIES AND SEWERAGE [MONEY]
    Queen's Recommendation having been signified—
    Resolved,
    That, for the purposes of any Act of the present Session to remove the limit imposed by subsection (5) of section 1 of the Rural Water Supplies and Sewerage Act, 1944, as amended, on the contributions under that section towards the expenses of local authorities in England and Wales, it is expedient to authorise the payment out of moneys provided by Parliament of any increase in the sums payable out of such moneys under the said section 1 or by way of rate support grant which is attributable to provisions of the said Act of the present Session removing that limit.—[Mr. Graham Page.]

    POOL COMPETITIONS BILL
    Order for Second Reading read.
    Motion made, and Question put forthwith pursuant to Standing Order No. 66 (Second Reading Committee), That the Bill be now read a Second time.
    Question agreed to.
    Bill accordingly read a Second time.
    Bill committed to a Standing Committee pursuant to Standing Order No. 40 (Committal of Bills).

    POOL COMPETITIONS [MONEY]
    Queen's Recommendation having been signified—
    Resolved,
    That, for the purposes of any Act of the present Session to make provision as respects certain competitions conducted by registered pool promoters, it is expedient to authorise—

    (a) the payment out of money provided by Parliament of any expenses incurred in consequence of, or in connection with, the provisions of the said Act by any board or authority, and

    (b) the payment into the Consolidated Fund of any fees.—[Mr. Carlisle.]

    WAYS AND MEANS

      POOL COMPETITIONS
      Resolved,
      That, for the purposes of any Act of the present Session to make provision as respects certain competitions conducted by registered pool promoters, it is expedient to authorise any charge to pool betting duly attributable to provisions about competitions for prizes.—[Mr. Carlisle.]

  DOMENICHINO PICTURE (SALE)
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. Fortescue.]
  8.18 p.m.
  Mr. G. R. Strauss: The manner in which the Domenichino picture "The Adoration of the Shepherds" was sold a few weeks ago by the Governors of Dulwich Art Gallery has caused grave anxiety among those who care about our museums and galleries and our heritage of art treasures.
  The governors of that gallery had long been concerned about the funds which they had or were likely to have to maintain the gallery, in view of rising costs, and to provide the security measures they were told were necessary. They were unable to get any further funds from the Alleyn Foundation which owns the gallery, and they made every effort to raise resources from numerous bodies. For some years the governors had been anxious about the situation and I understand they had approached, among other bodies, the Greater London Council, the National Gallery and the Victoria and

  713
  Albert Museum and that they had informed the Chairman of the Standing Commission of Museums and Galleries that if they were unable to raise sufficient money they might one day be forced to sell one of their pictures.
  Finally, their attempts to raise money proving unsuccessful, they decided to sell this picture. It was one of the outstanding pictures in the magnificent collection left to Dulwich College in 1811, and it has hung in the Dulwich Gallery since 1814. Incidentally, the donor, Sir Francis Bourgeois expressed a desire that it should be kept by Dulwich College for ever for the inspection of the public.
  The sale of the picture became a secret venture. No one knew about it, apart from the Secretary of State for Education and Science whose agreement has to be sought, under the Charities Act, 1968, before a treasure from a public gallery or museum can be sold. The Friends of the Dulwich Gallery were not informed. This is an important and influential body which has frequently helped the gallery in the past. The Standing Commission of Museums and Galleries was not informed. Indeed, no one knew about it until about three weeks before the picture was sold at Sotheby's.
  The first public announcement was made in an advertisement by Sotheby's in the Burlington Magazine, which I understand appeared on 3rd March. The first statement in a newspaper appeared on 8th March, and the picture was sold at Sotheby's on 24th March. In effect, no one had time to consider the consequences or the seriousness of the situation, and the public and the art world were inexcusably left in the dark.
  Fortunately, by the last-minute intervention of the Scottish National Gallery which, like others, had no prior knowledge of the sale, the worst disasters of this secret, rushed sale were avoided. The picture did not pass from public into private ownership, and it was not sold abroad. 'The Scottish National Gallery offered £75,000 out of its £80,000 annual grant for the purchase of this picture, on the understanding that the Government would provide another £30,000. This the Government agreed to. As far as anyone knows, the Government were not asked to make such a contribution before the
  714
  sale was decided upon or made. Had they been, and the £30,000 had been agreed at that stage, this sum might have been sufficient to form the nucleus of a successful rescue fund, and thereby prevent the picture from leaving the Dulwich Gallery.
  At the end of the day we have the ludicrous situation that the picture, by the provision, directly and indirectly, of public grants, continues to be hung in a public gallery, but not in the one to which it was bequeathed, and where it had been a cherished exhibit for more than 150 years. Moreover, its loss from that gallery has impoverished the historical significance of the Dulwich collection as an index of late eighteenth-century taste.
  My purpose in raising the matter this evening is not to cry over spilt milk, or to criticise, or to allocate blame. It is to seek to remedy the obvious serious deficiency, revealed by this case, in the procedures which govern the sale of our art treasures from public museums and galleries. I feel that early action should be taken in this matter, as similar situations may arise at any time.
  The trustees of many galleries may find themselves—indeed, do find themselves —short of money, and they may, in desperation, and reluctantly, decide that the only way out of their dilemma is to sell one of their valuable exhibits. Following the Domenichino precedent, they may assume that they will get the acquiescence of the Secretary of State for Education and Science, and that if they act with the utmost speed and secrecy all will be well. Their gallery may lose one of its finest pictures, but their financial worries will be at an end. I suggest that that assumption should be removed as quickly as possible, both in their interests, and in the interests of the public.
  The disposal of a masterpiece from a gallery or museum should not be a matter for the discretion of its trustees. It is a matter of wide public concern, and if things are left as they are, and the present wholly inadequate—indeed, one might say non-existent—procedures surrounding the sale of treasures from our museums and galleries remain unaltered, two undesirable consequences are likely to follow.
  The first is that potential donors of works of art to galleries and museums

  715
  may be reluctant to make such gifts, through fear that they may be sold one day without adequate safeguard or scrutiny. Second, masterpieces in our public galleries, which have long been part of our national heritage, may irretrievably disappear. I am not arguing that under no circumstances should an exhibit in a public gallery or museum be disposed of. What I am urging is that stringent safeguarding procedures should be established and operated before any such disposal can be effected in future, and that these safeguards should be made known.
  The responsibility for doing that lies clearly with the Secretary of State for Education and Science. The right hon. Lady has a specific obligation under Section 35 of the Charities Act, 1968, to grant or refuse consent when the trustees of a public museum or gallery seek to sell any of their possessions. She also has a wider responsibility, in that she is answerable to this House and the country for the welfare of the nation's art collections. I invite the Under-Secretary of State tonight to make a declaration whereby those two responsibilities can be reconciled. I ask him to tell us that in future a different course of action will be taken by the Secretary of State when she receives an application.
  When she does, I suggest that she should do three things. First, she should insist that full publicity is given to the proposed sale. Second, that ample time is allowed for the possible raising of sufficient funds to prevent the need for the sale, or for devising some alternative solution. Third, as she has no art expertise in her Department, she should consult those bodies who have before giving her consent. In the Domenichino case, the Under-Secretary told me in answer to a Question, she consulted no one because she believed this was unnecessary. I ask that, in future, such consultation should take place, particularly with the Standing Commission on Museums and Galleries, which has the requisite knowledge and expertise and which, in comparable cases in the past, such as the Soane Museum, the Iveagh Bequest at Kenwood and the Wellington Museum, was able to provide valuable help and advice.
  716
  There is no need for me to elaborate on these proposals. They present no difficulty and their desirability is self-evident. I have elaborated them to the right hon. Lady in the long letter that I wrote to her about three weeks ago, so she has had ample time to consider them. I hope that the Under-Secretary will now indicate her full agreement with these proposals. If he does he will dispel the justified disquiet which the sale of the Domenichino has aroused in the minds of all those who care about our national art treasures.
  8.31 p.m.
  Mr. Carol Johnson: As I am a governor of Dulwich College and therefore must accept responsibility for the decision to sell this picture, perhaps the House will bear with me if I try to put this matter in some perspective.
  The history of the Dulwich Picture Gallery goes back to the foundation of Alleyn's College of God's Gift, a gift made by Edward Alleyn, the actor and contemporary of Shakespeare, who died in 1526. He was the master of the royal games and acquired great wealth and a great deal of land in what was then the village of Dulwich, becoming lord of the manor. He was anxious to perpetuate his memory by the creation of the foundation, which also included some pictures, although of no interest or merit. There was a further gift of pictures by the bookseller and actor, William Cartwright, a few years later, and these pictures, in earlier years, were hung on the college walls.
  But the most important part of the collection were the pictures bequeathed by Sir Francis Bourgeois in 1611. They also have an interesting history, because the nucleus of the collection was a collection formed on behalf of King Stanislas of Poland with the intention of creating a Polish national gallery. Unfortunately, he was deposed and that collection never came into existence, but the pictures passed from Sir Francis Bourgeois and in his will they were left to Dulwich College. To house them, this charming, beautiful and functional building was built by Sir John Soane.
  Since those times, there have been many further bequests and both the gallery and the pictures attract visitors

  717
  from all over the world. This collection, of which the governors are very proud, is housed in what Robert Browning christened "the gallery in a garden".
  Why then even contemplate selling any pictures from a unique collection? I should like to explain the background which led to the governors' decision to sell. The pictures were removed from the gallery during the war. This was a fortunate move because the gallery itself was badly damaged. It was rebuilt after the war, but unfortunately the war damage payments covered only half the cost of renovation, so the gallery was substantially in debt and has been facing financial problems ever since.
  In view of what my right hon. Friend the Member for Vauxhall (Mr. Strauss) said, I should like to say something about the gallery's financial position, as this is not merely relevant to the decision to sell but, in my view, a complete justification for it. I should like to remove any misunderstandings about the governors' resources. It is true that the gallery is part of the Alleyn's Foundation of God's Gift and is administered by the governors, but the Foundation includes four other schools, apart from Dulwich, together with the chapel and the almshouses, and the gallery receives only a minute percentage of the income from the estate. This is a fixed percentage and cannot be increased, except by modifying the whole trust, which would need the agreement of the other beneficiaries, and it might be difficult to obtain that.
  In addition to the rising costs to which my right hon. Friend referred, in recent years the governors have been faced with substantial expenditure necessitated by the urgent and expensive security apparatus which has had to be installed to avoid a repetition of the sensational theft a few years ago when, among many of the valuable pictures stolen, was Rembrandt's "Girl at the Window".
  For many years the governors have been trying to improve and increase the gallery's resources. We are told that we should have let the world know of our financial plight and that money would have poured in. Those who take that view might be interested to learn of some of the abortive approaches that we have made in recent years.
  718
  As far back as September, 1966, an approach was made to the Arts Council for a grant. The Council advised the governors to appeal to the local authorities in South London. That we did, without success. After that, and on reporting back to the Arts Council, we were told by the Council that it was unable to help.
  My right hon. Friend referred to the Standing Commission on Museums and Galleries. We approached that Commission and discussed our financial problems with it as long ago as April, 1967. We prepared for the Commission a most careful memorandum setting out the needs of the gallery, and later we had a visit from members of the Commission. It was on the Commission's suggestion that the governors approached no less than 25 of the largest trusts and foundations in this country and America to raise an endowment of £100.000, which the Commission agreed we required.
  After all that effort, the meagre sum of £5,000 was raised. Had the response to those efforts been more promising, the governors would have felt justified in mounting a public appeal for the remainder of the money, but in view of that unfortunate result, that was deemed to be inappropriate.
  We then went to the Greater London Council, to which my right hon. Friend referred, in the hope of obtaining a larger grant and, indeed, the G.L.C. increased its grant from £2,000 to £3.000. We are grateful for its support, though it does not deal with our major problem.
  Then, at the suggestion of County Hall, we again approached the South London boroughs, and this produced £75. Back we went to the Arts Council, which told us that it could do nothing. However, it wrote to the Department of Education and Science suggesting that the Department should consider making an annual grant to the Dulwich College Picture Gallery on the lines of the grant made to Sir John Soane's Museum.
  The chairman of the governers, Lord Shawcross, met the present Paymaster-General, Lord Eccles, to discuss the financial difficulties of the gallery, but the latter did not hold out much hope of the Government extending the sort of help to Dulwich that had been given to the Soane Museum. He was certainly aware of the

  719
  dire financial straits of the trust from the point of view of the gallery.
  My right hon. Friend also referred to the Friends of the Dulwich Gallery and to complaints that they had not been consulted. However, they represent a very small body. There are not more than 150 of them who each make an annual payment of one guinea or so a year. Certainly they could not have been expected to raise the £100,000 that was required.
  After all this, covering several years, and after making every effort we could to raise the necessary money, we were faced with the prospect of disposing of one of our pictures. We took the most careful advice, particularly from the representative of the Royal Academy, who serves on the board of trustees, about which picture to sell and which one would do the least harm to the collection as a whole.
  On the legal side, authority for the sale was obtained from the Department of Education and Science, and I am sure that the Minuister will be able to deal with this aspect. I suggest that neither the terms of the original Alleyn Deed of Foundation or the terms of Sir Francis Bourgeois' will are relevant today, because the position, powers, responsibilities and rights of the governors are governed by Act of Parliament. The Dulwich College Act, 1857, and the Order in Council of 18th August, 1882, deal with the management of the Foundation.
  My right hon. Friend will appreciate that the decision of the Governors was a difficult one to take. They deferred contemplating it as long as possible. They made every effort open to them to secure the funds to maintain the gallery. If they had not taken the action which they did, the gallery would have had to be closed. It is a popular gallery which is free to the public and, as I have said at the beginning, attracts visitors from all over the world. If my right hon. Friend had served with me on the board of governors I do not believe that in these circumstances he would have come to any other decision than that to which we came.
  8.40 p.m.
  The Under-Secretary of State for Education and Science (Mr. William van Straubenzee): I understand the strong
  720
  feelings aroused by this matter in the mind of the right hon. Member for Vauxhall (Mr. Strauss).
  It is positively valuable that we should have time—by the good fortune of our business today we have time—to consider this matter at rather greater length than would normally be the case on an ordinary Adjournment debate. It also has the advantage that the hon. Member for Lewisham, South (Mr. Carol Johnson), who speaks with great authority on the matter, having been intimately concerned with each move, has been able to make public certain matters, which have not previously been fully ventilated, to the great advantage of the debate.
  Although neither the right hon. Member for Vauxhall nor the hon. Member for Lewisham, South know this, I have a personal connection with this particular collection. Until 1959 the then chairman of the trustees, now deceased, was my uncle. I therefore knew at first-hand the passionate care which the trustees bestowed upon their picture collection.
  At the risk of sounding momentarily pedantic, I should like, first, to deal with the purely legal side, but I shall also deal with what I may loosely call the strictly practical side.
  Since I am dealing with a legal power vested in my right hon. Friend, I have to start by saying that it is fundamental to the sale of this picture and the request for consent by the trustees that a statutory power must be exercised only for the purposes for which it was conferred by Parliament. The relevant power is conferred by Section 23(1) of the Charities Act, 1960. I am sure that it was merely a slip on the part of the right hon. Gentleman, but for those who read our debates it might be important. If I heard him correctly, he said that it was in Section 35.
  Mr. Strauss: Of the 1968 Act.
  Mr. van Straubenzee: Section 23 of the Charities Act, 1960, gives the power vested in my right hon. Friend, and that is the one under which she was operating in giving her consent. That power enables her to authorise any action proposed or contemplated in the administration of an educational charity which appears to her to be
  "expedient in the interests of the charity".

  721
  In this case the trustees represented to my right hon. Friend that it was expedient, in the interests of the Dulwich Art Gallery, that they should be authorised to sell the Domenichino to raise funds, without which it would in all probability be impossible for them to maintain the gallery.
  The essence of the problem which had to be considered by my right hon. Friend can be put in the form of two questions and the answers thereto. The first question is: did the gallery need funds on the scale contemplated; that is, a capital sum of between £80,000 and £100,000? The answer clearly is: Yes.
  Secondly, was there, at the stage at which my right hon. Friend was formally approached, at the beginning of December, 1970, any practicable alternative way of raising the sum involved? I believe the answer is: No.
  In the light of the speech of the hon. Member for Lewisham, South, there is no need for me to argue the extent of the financial plight of the gallery. He does it with an authority that I do not possess. For reasons that both the right hon. Gentleman and the hon. Member will understand, I do not propose to go into some of the most pressing reasons why it is necessary for expenditure to be incurred by the gallery. It would not be in the interests of the gallery to elaborate the matter, other than to say that the financial plight is common ground.
  As the hon. Member said, by the time that my right hon. Friend was approached for an order authorising the sale of the picture the trustees had spent four years, or thereabouts, attempting to raise the money in other ways. We have heard tonight of the details, step by step. They were described in a letter to The Times by the noble Lord, Lord Shawcross. Put shortly, the story as it came before us—and as it has been confirmed tonight—was that the trustees appointed a special appeal committee to advise them on the best way of raising the money. The trustees did consult the Standing Commission on Museums and Galleries. They did apply to the Arts Council for financial assistance. Indeed, they leant directly on the advice of a committee, specially established, and they appealed to an impressively large number of organisasations, both in this country and in the United States. They did apply to the
  722
  Greater London Council. They did apply to the Boroughs of Lambeth and Southwark. Finally, they approached my noble Friend the Paymaster-General about the possibility of Government help.
  The net result of all these steps, taken with such earnestness and, no doubt, skill, was that the committee realised slightly more than £6,000 in capital, with the other additions mentioned by the hon. Member.
  The trustees had exploratory discussions with my noble Friend the Paymaster-General. He put to them two suggestions for methods by which they might run the gallery on a more economical footing. I do not believe that it has been previously made public that, without any commitment, he also suggested that they might consider the possibility of the gallery's becoming, in effect, an outpost of the National Gallery, maintained out of public funds and—as a corollary—subject to Treasury control.
  The trustees, as they were fully entitled to do—I make no complaint about it—did not feel able to pursue that suggestion. It is only reasonable to make that matter known because there have been assertions that my noble Friend did not take as much care in the matter as, without question, he did.
  We reached the position that the trustees decided to make no public appeal for funds for the gallery, for the reason given by the hon. Member, namely, that they were advised by the committee that the appeal was not likely to be successful. If I may supplement this, that advice was confirmed by its own experience in an attempt to raise funds for another institution forming part of the same charity which, to put it mildly had been very far from a success.
  That was the situation when the trustees applied to the Secretary of State for an order under Section 23(1) of the Charities Act. I have shown that it was reasonable for the Department to say that it was satisfied, on the evidence, that there was no practicable alternative to the sale of a picture forming part of the gallery's main collection; and that is how an order was accordingly made authorising the sale of the Domenichino.
  The sale of this picture, the trustees had been advised, would do the least damage to the collection as a whole. This decision has been criticised on a number

  723
  of grounds but I venture to say that the only relevant ground—and I use that phrase because the relevancy follows from what I have said about the questions which have to be considered in the context of Section 23—is the claim that there were alternative ways of raising the funds and that more time should have been given to the trustees to raise them before the order was made.
  This, frankly, is a matter of opinion. The short answer was given in the letter to The Times from the chairman of the governors to which I have referred, in which he said:
  "… in spite of all the publicity the matter has received we have only received one donation of £5."
  Mr. Strauss: The hon. Gentleman must realise that Lord Rosse, Chairman of the Standing Commission on Museums and Galleries, takes a very different view and considers that if it had been known that this picture was to be sold the Commission might have been able to devise, through its experience and contacts in the art world, ways of saving it.
  Mr. van Straubenzee: That is not so, but I will come to Lord Rosse's letter, which I have read. Surely what he was saying was that the Commission would be glad to give advice. The trustees have had, to put it loosely, bags of advice. After all the publicity given to the matter after the sale had been announced there was only one donation of £5 received.
  The right hon. Gentleman has referred to the letter from the Chairman of the Standing Commission. What it said was that they would be glad to offer advice, but what the trustees were short of was funds, not advice. I have yet to hear any practical suggestions about what the trustees could have done to raise more funds.
  I am grateful to the hon. Member for Lewisham, South for making reference to the Friends of the Dulwich Gallery. Like him, from my position, I nay the warmest tribute to the work of that body which I know is enormously appreciated by the trustees. But to suggest that it could have raised a sum even remotely approaching £100,000, which the picture raised, is not realistic. I am grateful to him for putting right a misconception very much abroad as to the way in which
  724
  the admittedly wealthy Alleyn Trust, which runs various schools as well as the gallery, could have been asked to cooperate. The answer is that the administration of the income of the Alleyn Trust is regulated by schemes which have effect under the Charities Act.
  In practice, my hon. Friend could amend those schemes only with the consent of those who administer all the institutions which benefit from the trust. I have only to ask the House to consider the difficulty of obtaining the consent to a variation of a scheme from all those who receive income for it to realise what lies in the way of reaching agreement, which would necessarily imply that some would take a reduced income. The Alleyn Trust was not a free agent.
  It has been mentioned outside the House that the National Art Collections Fund should have been brought into the matter. That fund is constituted
  "To assist public art collections in the United Kingdom and the Commonwealth to acquire works of art and objects of historical importance".
  There can be no question of the National Art Collections Fund making a substantial contribution towards the maintenance —and I stress the word "maintenance" —of the gallery.
  To sum up, when the time came to consider whether an order ought to be made under Section 23(1), all the evidence before my right hon. Friend was that this was the best means of raising the money which all agreed the gallery required for its continued existence. I personally believe that everything which has happened since confirms that conclusion.
  The right hon. Gentleman has suggested that my Department should have taken expert advice before making the order, and in a Parliamentary Question earlier this Session he referred specifically to local organisations, art authorities, or other interested parties. He has also suggested that the Department should have consulted such organisations and authorities because there is no expert evidence available within the Department. It is sufficient to point out that the Department's officers include the staff of the Victoria and Albert Museum, whose director is Sir John Pope-Hennessy. It cannot, therefore, be sustained that a Department which can look to such a man for advice lacks any expert advice. In

  725
  addition, the Department can, if it wishes, turn for advice to any of the national galleries.
  The real answer to this point is that it is wholly misconceived, because the questions which the Department had to consider could not be affected by the sort of consideration to which the advice of such experts would have been directed. The question which the Department had to consider, and on which my right hon. Friend had to adjudicate, was whether the sale of the Domenichino was expedient in the interests of the gallery. In the particular circumstances—the possibility that the gallery might have to chose if funds were not raised—the artistic value of the Domenichino, even the possibility that it might be exported if sold, could not properly be taken into account in the legal context. Therefore, there was no question upon which the Department could consult these bodies.
  I have been asked on other occasions to give a guarantee that the Department will not be asked to make another order authorising the trustees to sell another picture from the main collection. I cannot in good faith give a guarantee that the trustees will never make another approach of that kind. But there is every reason to hope that the recent sale will enable the trustees to maintain the gallery out of their additional income, at least for the foreseeable future. It was only with the greatest reluctance that the trustees decided to sell, and that was when the Gallery was in financial extremes. What the trustees want to do is to keep their pictures.
  One question raised by the right hon. Gentleman relates to the effect on other potential donors. This is a valid point. But the Department and the trustees have to deal with the situation as it exists in any particular case. I have outlined with some care, both on the strictly legal side and on the side looked after by my noble
  726
  Friend, the detailed and careful scrutiny which was given in this particular case. The harsh realities of that situation left no doubt at all about the action that was taken. I am grateful that our business has enabled me to give a detailed and full explanation to the House.
  Mr. Strauss: There is one question with which the hon. Gentleman has not dealt. Complaint has been made about the lapse of time between the public announcement of the sale of the picture and the date when the picture was sold, which was less than three weeks. Indeed, the period was so short that possible supporters of a rescue fund could not be mobilised and it was impossible to do anything about it. When one bears in mind that the appeal to rescue a picture might be more potent than an appeal to provide maintenance money for a gallery, it is highly desrable that in future there should be a reasonable gap between the public announcement of sale and the actual moment when the sale takes place. I ask the hon. Gentleman for an assurance that in future the Secretary of State will see to it that sufficient time elapses in this respect to enable a possible rescue operation to be launched, perhaps with success.
  Mr. van Straubenzee: The technical answer is that, under the powers invested in my right hon. Friend by Section 23, the Secretary of State for the time being would not, I think, have the legal power to make such a requirement. I take the point, however. But, on the facts of this case, very wide publicity was given to the fact that the sale had been authorised, and it follows from the speech of the hon. Gentleman, who is himself a trustee, that if in that period there had been a reasonable expectation of the necessary funds being raised, the trustees would have been the foremost people to have welcomed the alternative solution.

  SCOTLAND (SOCIAL SERVICES)
  9.7 p.m.
  Mr. William Hamilton: I gave notice to Mr. Speaker's office and to the Scottish Office of my intention to raise the question of means-tested welfare service charges and their effects in Scotland.
  The House will be aware that, in the last week or fortnight, a very expensive national advertising campaign has been undertaken by the Government in an attempt to persuade people how humanitarian and kindly right hon. and hon. Gentlemen opposite are in making sure that people get their means-tested benefits.
  The House and the country will recall the election battle-cry of the Conservative Party about the need for selectivity and the need to channel aid to those who needed it most. We were told that there would be great compassion for the sick, the poor, the unemployed and the old, but that there would be a merciless rooting out of the scroungers, and that this exercise would give the Government room for manoeuvre to reduce direct taxation.
  So it was that we had sixpence off income tax for the better off one day and increased National Health Service charges the next day for the less well off. So we had the beginnings of the cynical creation of two nations. The basic principle on which the National Health Service was founded, that the healthy would pay for the sick by fair, equitable, progressive taxation, is being eroded and will be further eroded in the course of the next 12 months and longer.
  It is abundantly clear that, far from being at the end of the road, we are only just at the beginning. In United Kingdom terms, the increased prescription charges are estimated to save £30 million a year. Another way of saying that is that the sick will pay so that surtax payers and the capital gains people may have their tax reliefs.
  Later, we were told that the present 20p per item on a National Health Service prescription is to be increased to 50p later this year. According to the authorities, that will apply to almost half the drugs now being prescribed in
  728
  the National Health Service. Opticians expect increases of up to 230 per cent. in the amounts that patients will have to pay for spectacles.
  My point of complaint, which I shall spell out in a little detail later in my speech, is that the Government's advertisements were designed to deceive the people, rather than to inform them. It is true that the National Health Service charges will not apply to children under 15, to the over-65s, to the war disabled, or to others who are in genuine hardship. The fact remains that many will have to choose between buying medicine and staying ill. As Mr. W. M. Darling, the President of the Pharmaceutical Society, predicts:
  "… many will be seeking their cures from the shelves of supermarkets or old medicines stored away in cupboards and medicine chests, until the money can be found for the doctor's prescription."
  Despite all the Government's protestations, these cuts and charges are bound to produce a society which will be less healthy, less fair and less civilised.
  When the advertisements appeared about free milk, free school meals, free prescriptions, free welfare foods, free optical treatment and free dental treatment, it occurred to me that the word "free" appeared 18 times. It would have been more accurate if it had said "means-tested" milk, "means-tested" school meals, and "means-tested" prescriptions. However, I shall come to a more serious point than that later in my speech.
  The advertisements were a wicked attempt to present the Tory barbarian with a human face, with the milk of human kindness flowing in rivers from a gentle, generous, warm-hearted Chancellor of the Exchequer. It is hard to conceal the men with faces of flint and hearts of stone. I quote from the Daily Record, a very popular daily newspaper in Scotland, which ran a headline on 29th April saying:
  "School Meals Scandal—50,000 School Children Doing Without."
  The article expressed the anxiety and worry of education chiefs and health authorities in Glasgow. The newspaper had obtained figures from the City Corporation to the effect that over 9,000 children had already stopped taking meals

  729
  at school. That is more than one in seven. The Record article went on:
  "'It's back to the days of the jeelie piece', said the city's Medical Officer of Health, Dr. Archibald Miller."
  The paper then gave the figures for Dundee—a total of 4,000 fewer meals per week since the increase. That is a 6 per cent. decrease. Put another way, 792 children in Dundee had stopped taking meals. In Perthshire a 12 per cent. drop was recorded, and the Record went on to say that distracted parents were sending their kids off with a sandwich or a penny for a snack. It was either that or begging for free meals.
  The allegation was made in the Record article that in some schools underprivileged children were being ordered to stand up in their places and be counted as free-school-mealers. I hope that the Under-Secretary of State for Home Affairs and Agriculture will inquire where the Daily Record got that information, and that the Government will take steps to put a stop to it.
  That is the kind of thing that is bound to happen with a system of this kind. The Record went on to say:
  "What a testimonial for Prime Minister Heath's 'Better Britain'."
  A typical response was made to that article by the wee Under-Secretary of State for Health and Education. Bearing in mind his and the Government's determination to maintain a little enclave of privilege in fee-paying schools in Glasgow and Edinburgh, the reply which the Minister made in the Record the following day, 30th April was typical of the humbug and cant we have come to expect from him. Unfortunately he is not here to answer the debate. He has probably swung off to the Scottish Tory Party Conference in Aberdeen, leaving the baby to be held by the hon. Gentleman, to whom I apologise. He is preoccupied with safeguarding and furthering the interests of the Scottish brewers on Thursday mornings in Committee, and it makes a change for him to come to defend his Government's policy on starving the kids.
  The Under-Secretary of State for Health and Education replied in the Record of 30th April:
  "I can well understand public concern at speculation that some youngsters are not taking school meals due to the increase in
  730
  charges this month, and may thus be losing a valuable nourishment which they need."
  I can well imagine his Christian breast heaving with compassion as he signed that Civil Service brief and sent it to the Record. He added:
  "In fact, numbers taking school meals normally fall at this time of year—due to factors like examinations—"—
  I am not sure why the imminence of examinations should make children take sandwiches instead of a hot meal but that is what the Minister said. He went on:
  "… but my Department will be carrying out an all-Scotland survey towards the end of next month to find out exactly what the situation is."
  Supposing it does carry out that survey. What happens then? Suppose there is a catastrophic decline in the number of school meals. Will the Government abandon the price increase? On the contrary, they have already said that there will be another increase in the price of school meals in April, 1973. No matter what that survey proves, the Government are determined that school meal prices shall rise still further. What is the point of the exercise?
  The hon. Member for Glasgow, Cathcart (Mr. Edward Taylor) continued:
  "I think it is right that people who can afford it should pay the higher charge—which at 12p is still only three-fifths of the economic cost of the meal—so that an unfair burden should not be carried by the taxpayer."
  That confirms what we have been saying. The Government are charging these kids and their parents the increased meal charges to give surtax benefits to people earning over £4,000. That is the wealth redistribution that the Government have stood for and are standing for.
  The hon. Gentleman went on, in appalling language:
  "But it is vitally important that no one should go without because of financial circumstances. I was 100 per cent. in support of the Government's decision to raise the level of family income qualifying for free meals, As a result of our decision, more children in Scotland than ever before are entitled to free meals as a right."
  He estimated that the number of free school meals could rise from 96.000 by about one-third, and that that represented nearly one-third of the total numbers who were taking school meals. We had the usual sanctimonious humbug which we have come to expect from that particular

  731
  Minister, especially with the imminence of some critical local elections in Scotland. No wonder he and his friends got a drubbing in Scotland, especially in Glasgow, and not least in his constituency of Cathcart. His double-dealing and double-talk are at last being exposed for what they are. He is one of the juniors Ministers who is fighting hard for an increase in his own salary of £5,000 a year. I hope that the people now paying the increased school meal charges in Cathcart will note that. He is very militant when it comes to his own salary.
  I quote a specific example of the school meals issue. On Sunday, 9th May, I wrote a few caustic comments in the Sunday Mail about our brand new soup kitchen economy. I quoted the exact figures from the Government's advertisement, and on the following Monday I was approached by my hon. Friend the Member for Renfrew, West (Mr. Buchan), who said that he had had three telephone calls challenging the figures from people who said that they had incomes below the figures in the Government's advertisements and had been told that they did not qualify for the free school meals.
  I had an immediate response from a lady in Stranraer. She has two children, one going to school, and she says:
  "I read with interest your article in the Sunday Mail, 9th May. I would have thought that you were the last person to be taken in by Tory propaganda."
  She was right. She continues:
  "My husband earns £16·52 per week. This includes 90p family allowance. You show me the Scottish farm worker who earns any more. I enclose the replies I received when for the first time in my life I swallowed my pride and applied for anything free. We have two children, one 13 years old, who travels 15 miles each morning to school and so has no chance of coming home for lunch, and one aged three months.
  The letter dated 29th April is the reply I received when I asked for an explanation of why I did not qualify for free meals at school.
  So what about the £20.75 the Tories have splashed over the newspapers? Is this the same old double talk and eyewash we have come to expect from them or is there a different table for Scotland?
  I hesitate to write my Member of Parliament for Galloway for an explanation as he is of course a Tory and I feel he would try to put me off with the usual excuses. I look forward to hearing your reply."
  I hope that she gets it tonight, because I quote now from the letter which the
  732
  Tory-controlled County Council of the County of Wigtown sent:
  "Thank you for your letter … enclosing cutting from national newspaper and asking why your son does not qualify for free school meals.
  I would point out that the table you enclose is a guide only and according to the table issued to us by the the Scottish Education Department you do not qualify."
  So there are two tables—one that is put out to con the public and another sent to education authorities which has some different figures. Prior to this Adjournment debate, I went to the Library and asked for that table. The Library produced a table to me. I have conferred with my hon. Friend the Member for Motherwell (Mr. Lawson), but neither he nor I can understand the table.
  I quote first from the Tory propaganda sheet that went out as an advertisement. It says that a married couple with two children, if the gross earnings including family allowances are £20·75, will be entitled to free school meals. I have a photograph of the annexe to Circular 3/71, a document issued to education authorities. I do not know whether it is the same as that which was issued by the Scottish Education Department. This is part of the English document, but the table is the same. According to this, the net income scale for a family with two children who would be entitled to free school meals is £13·20, not £30 gross earnings.
  There are some peculiar figures in this document which neither I nor my hon. Friend the Member for Motherwell could understand. The left-hand portion, which is headed "Part A", is the size of the family. The horizontal lines under "Weekly Income" given in decimal pounds and pence is "Part B". So reading across from 2 in the vertical column, which I suppose means two children, the net income on which presumably they would get free school meals is £l3·20. There is a figure before that figure on the same line—£13·65. Going further down for a family of 10 the first figure in the horizontal line is £34·45 and right at the end of the horizontal line there is the figure £30·40.
  I will hand this document to the Under-Secretary, and he can interpret it for me in due course. As neither my hon. Friend the Member for Motherwell nor I could

  733
  understand it, I wonder how many people in the country will be able to. The advertisement said that it is a guide only, but there is a great discrepancy between the figures in the newspaper advertisement and those in the Circular. Are there other tables for prescriptions, welfare milk and foods and optical and dental treatment, and are the guides which are going out different from the figures in that newspaper advertisement?
  I received another letter from Glasgow. Interestingly enough, this person asks me not to mention her name. This shows some shame and distress at being in this situation. The letter says:
  "We read your letter in the Sunday Mail, 9th May, regarding free prescriptions etc. My husband is retired through illness and has a pension of £4.29 and sickness benefit of £8.10, which amounts to a total of £12,39 for two. We also read in all the papers of the leaflet issued by the Department of Health and Security about all the benefits. My husband applied as we were well below the amount stated in the papers. On 27th April, he got a reply stating that if our circumstances are the same, our prescription charges can be refunded in full if they are 73np in any one week. Just who do they think they are kidding?"
  I do not know what answer I can send: I will wait for the Minister's reply.
  But hundreds of thousands of people will not have a clue about their entitlement, and those advertisements will not help them, en the contrary, false hopes will have been raised and obviously have been raised by the figures in those advertisements. The Government are creating a form-filling, means-tested, frightened, bitter, disillusioned nation, divided between those who have not and who are being bled even further and those who have and are being given more.
  We will have further evidence tonight, after the votes are counted in England, of the continuing disillusion and the anger which most people feel for the Government who have so bitterly deceived them since they were elected. I hope that the Minister will reply to the facts and figures which I have given, and give people the truth, tell them exactly what they are entitled to and correct what I believe are errors and extravagances in the newspaper advertisements of the last fortnight.
  9.28 p.m.
  Mr. George Lawson: I know that it is awkward for a Minister to get a telephone call to the effect that
  734
  the House is likely to collapse and that some hon. Members want to throw questions at him. I thank him for his courtesy in coming here. I do not think he will be able to answer some of these questions precisely, but they should be asked and we should be failing in our duty if we did not use an opportunity like this to ask them.
  I have only one question, which does not relate to children. We are concerned that those advertisements concerning prescriptions, school meals, dental and optical forms are urging people to make application. The pamphlet I have with me indicates that under certain circumstances certain things will be given free. Although I am usually more cautious than my hon. Friend the Member for Fife, West (Mr. William Hamilton) in complaining about these matters, I agree with him that the word "free" is often too liberally used in this context.
  At the beginning of April my attention was drawn to the case of an old man who had applied for free spectacles and had been refused. In fairness, I must admit that the application and refusal had been made prior to 1st April, the date from which certain new arrangements came into force.
  I took the matter up with my local office which deals with these matters—the staff there are extremely helpful and always respond well—and I was surprised at the reply, which was dated 13th April. I will not divulge the name of the man whose case I am raising, except to say that he is an ex-miner with an industrial injury benefit of £3·35 and a mine worker's pension of £1.50. He and his wife have a total income of £12.95.
  The local office worked out the disregards and, taking account of his entitlement, told me that his application for free spectacles had been refused because it was considered that he could meet the charge for his spectacles by saving over a short period; and the Supplementary Benefits Commission did not think that free spectacles should be given in his case.
  That seemed fair enough, and this old man had to save a little extra for his spectacles. I replied to that letter and enclosed one of the forms I have with me, pointing out the liberal use of the word "free". I also pointed out that the figure shown on the pamphlet, under

  735
  the heading "Free optical or dental treatment", was £17.95 for a couple, £5 more than this couple's income. I accept that the larger figure is gross, but so is this couple's income. I said that I was surprised at the date on the local office's letter of 13th April. They must have known of the new circumstances that applied from 1st April.
  I could have understood an answer, "If Mr. So-and-so had applied subsequent to 1st April he would have been treated in such and such a way; but, as his application was prior to 1st April, he is on the old scale." There was no such indication.
  When I wrote enclosing this leaflet and asking for observations, I got a brief note saying that what I had to say would be investigated and they would write to me again. That did not suggest to me that the officers dealing with my letters had in mind that a new set of circumstances were now applicable and that the answer might have been given at once.
  I suggest that, with this wide dispersal of information, by 1st April everyone concerned should have been aware of the position and should have been able to answer my question right away. The fact that it was not answered right away indicates that things are not so cut and dried as the widely dispersed advertisements suggest.
  When we are told that an income of £17·95 for a couple entitles them to free optical and dental treatment, I wonder what is the catch. The Minister may say that there is no catch. If so, I shall be very happy. If he tells me that he cannot give me a precise answer now, I shall expect an answer in the near future. However, I hope that he has a good idea about the matter and can at least give a partial answer tonight.
  9.37 p.m.
  Mr. Gavin Strang: I am grateful to my hon. Friend the Member for Fife, West (Mr. William Hamilton) for raising this matter tonight. Whatever the Minister may think, this is an issue of real importance to the people of Scotland.
  Hon. Members could not but be struck by the reaction of their constituents when the Government announced the charges.
  736
  I recall people coming to me and inquiring how they would be placed. They were people having to buy prescriptions every month. I knew that they were not exempted. There were deficiencies in the Labour Government's scheme, but under this scheme many people who are chronically sick, in the terms which reasonable people use, do not qualify for exemptions.
  These charges are attacks on the sick. They are an attack on our National Health Service and on the principle that everyone should be entitled to the best facilities which the Health Service can offer regardless of income. They are a deterrent to people who wish to keep themselves healthy.
  The Minister may say that that is the inevitable Socialist Pavlovian reaction. But it was not only ordinary people who reacted in that way; it was the medical and dental associations, which are in no way sympathetic to the aims of the British Labour movement.
  The British Dental Association said:
  "The charges will fall most heavily on those in the greatest need of treatment and those who are already overdue for treatment will be encouraged to neglect their mouths still further. Even patients who might on examination have been found to need minimal treatment will be deterred from consulting the dentist."
  I could go on at length, but I shall not do so.
  I had an interesting experience with my own dentist. I knew that the charges were coming into operation, so I phoned, two or three weeks before, asking for an appointment, which was overdue. The receptionist said, "I do not think that the charges are coming in. We have heard nothing about them." I said, "You can take it from me that they are coming in on 1st April."
  I made the appointment and went to the dentist about three weeks ago. My dentist knows that I am now a Member of Parliament, but he has never discussed issues with me and has never indicated his political views. But he was very agitated about these proposals. He gave me a form which he had received at the beginning of April. He asked me to take it away, because he thought that it was incredible that a Government Department could issue such a complex document to be completed in respect of every patient. I took the form away,

  737
  and I have tabled a Question to the Secretary of State for Social Services. This is an outrageous document.
  We have not seen the end of the matter. We have been told that prescription charges will be related to the cost of the drugs. The Sunday Times says that the Government are having difficulty in working out the details—that they are meeting severe opposition—but when the Prime Minister was asked about the Sunday Times article he expressed confidence that the Government would be able to work out methods imposing these massive and disgusting charges on our people.
  The main point made by my hon. Friend the Member for Fife, West concerned not the extent to which we abhor these charges or believe fundamentally in the ideal of a free Health Service; it was a much more serious charge. It was that the Government are deliberately misleading our people. That charge is justified. We are seeing the perversion of the Government's information services.
  The process began with the documents issued on the Common Market. Regardless of one's view on that matter, if one reads those documents one appreciates that they are not straightforward, factual accounts of the E.E.C.; they are subjective statements, written by someone who obviously supports the idea of Britain's entry. If anybody doubts this he should read the statements about the economic growth of the Community, and how it is said to be attributable to the existence of that organisation. That is not a fact; it is an opinion, which is challenged by many of our economists.
  But the latest development is far more serious, as shown by what appeared in the Daily Mirror, a mass circulation newspaper, on 3rd May. It carried an advertisement concerning Government expenditure which reads more like something from the Conservative Central Office than a Government Department. The big banner headline refers to free milk, free prescription charges, free welfare food, free optical treatment and free dental treatment, but it contains one sentence which I particularly resent. It says:
  "If your weekly family income is roughly the same as or less than the figures below you should qualify for benefits either free or partly free."
  738
  It is the word "should" which gives the game away. If the Government had said, "You may qualify, depending on your rent, or on the amount of money that you have to spend in order to get to work", they might have had a case. But they did not say that. They said, "You should qualify". That gave the impression that if one did not qualify a mistake had been made by the Department.
  If one looks at the document which my dentist gave me, one gets a different view. It contained a table—different from that referred to by my hon. Friend—concerning the size of family, rent, rates, expenses in connection with employment, and income limits. The income limits are a function of rent and rates, and a function of the expenses incurred in connection with employment. If the rent is substantially out of line with these figures, then the income limit is substantially different, and the same is true with expenses in connection with employment.
  Why did the Government not publish this table? Was it too complicated'? Is that the reason with which we are to be fobbed off tonight? I think that this table did not meet the Government's purpose in seeking to give their party a boost at an appropriate moment-3rd May, 1971.
  I suspect that a farm worker will be at a serious disadvantage with these charges. I do not want to be dogmatic, but how will a farmworker's rent be estimated? Will it be on the same lines as that used by the Agricultural Wages Board, which is an estimate which farmers have said is too low? Does a farm-worker, if he lives on a farm, automatically have no expenses in connection with employment? I am not sure. I simply put these things forward. The Government stand condemned tonight, and I congratulate my hon. Friend the Member for Fife, West on giving us the opportunity to expose them in this fraudulent exercise.
  9.47 p.m.
  The Under-Secretary of State for Home Affairs and Agriculture, Scottish Office (Mr. Alick Buchanan-Smith): May I first thank the hon. Member for Fife, West (Mr. William Hamilton) for his customary courtesy in giving me notice of his intention to raise this debate? I am glad to have the opportunity of replying to the

  739
  points that have been raised. May I also thank the hon. Member for Motherwell (Mr. Lawson) for his kind words? We are a very flexible and adaptable lot in the Scottish Office, ready for any eventuality that may arise at any hour. I hope that this evening's events and the way in which we have tried to meet the demands made upon us bear this out. Although I am grateful to the hon. Member for Edinburgh, East (Mr. Strang) for his remarks, I am sure that the House would not want me to go into the details of the Common Market and certain attendant publicity.
  I should like to deal with this question of the publicity campaign, the way in which it has been conducted and the results which it may have had. I will not be able to answer some of the detailed points raised because these are personal matters affecting individuals and I am not in possession of the full facts of each case. I will, however—and this applies particularly to the hon. Member for Motherwell, who raised this genuine problem over spectacles—be happy to investigate any matters which hon. Members bring to my attention in writing.
  I pay tribute to those who administer these welfare schemes through the offices of the Department of Health and Social Security, the Supplementary Benefits Commission, local authorities, education authorities and welfare authorities. No Government has a monopoly of complex schemes and I am sure that in what hon. Members have said there was no criticism implied of the normal courtesy and efficiency and the lengths to which various welfare workers will go at national and local level in dealing with these matters.
  As a constituency Member I have received the greatest courtesy, help and understanding from my own local departments and welfare offices in the Department of Health and Social Security. There are occasions when things go slightly wrong and when people feel that they have not been properly dealt with. However, in general, those who work in the welfare services at all levels do extremely good jobs in handling some very complicated cases.
  I do not wish to make any party political points, but the hon. Member for Fife, West entered into his task with
  740
  customary bitterness and acrimony. I resented very much his personal remarks about my hon. Friend the Member for Glasgow, Cathcart (Mr. Edward Taylor), who carries out duties at the Scottish Office in an exemplary and most able fashion. What the hon. Gentleman said tonight was undeserved in relation to the hard work of my hon. Friend. He has a deep interest and concern for those for whom he is responsible in Scotland and for his own constituents. He has worked untiringly and unsparingly over the last six years. I say no more than that. I refute every word sp id by the hon. Gentleman about my hon. Friend.
  There is a deep division of approach on the welfare services. What has been said tonight has served only to underline how great are the differences and how completely different is the approach to these problems on both sides of the House. I feel that we on our side are nearer to getting the right answer, not only in regard to the country as a whole but in respect of individual sections of the community. There is no question of dividing the country, as the hon. Member for Fife, West tried to make out.
  Mr. William Hamilton: Pathetic.
  Mr. Buchanan-Smith: The hon. Gentleman, from a seated position, says that it is pathetic. Time will prove which of us is right. He must remember that charges are not new. The Labour Government took them off and then put them on again, and they certainly increased the charges. There was a deep division of principle among hon. Members opposite. Those same hon. Gentlemen should not now put on their white robes and set themselves up as champions of the underprivileged. The division is not all that great. There are hon. Members opposite who realise that there must be priorities in social service spending.
  Mr. Jeffrey Thomas: A few moments ago I understood the hon. Gentleman to be underlining the great divide between the two sides. Is he now saying that there is a firm consensus between the two sides? I think he should make clear what he is saying.
  Mr. Buchanan-Smith: I said that there was a deep division, but I said that it was not as deep as some people might

  741
  think since, even among hon. Members opposite, there has been a full admission of the need to look at priorities. In fact, the Labour Party have never operated a completely free social service system.
  When we came to Government nearly a year ago, we found that things were not in a happy state that hon. Members opposite seemed to think. We found a high rate of marginal taxation which undoubtedly was having an enormous effect on hindering the development of incentive. In the social services we found many large gaps in provision, problems affecting the chronic sick and disabled and questions of family poverty—all matters which hon. Members opposite were prepared to point out to their own Government at the time. We found certain neglected sectors in the National Health Service. We had these problems to tackle, as did the previous Government. We had to look at the question of priorities to make sure that we got our spending right, to get the best results for the country as a whole and for those sectors of the community who may be less well-off.
  In many ways, in the past nine months we have done nothing on the lines of the picture which the hon. Member for Fife, West tried to paint to hurt those who are less well-off. It is true that certain charges for certain services have gone up. At the same time, what the hon. Gentleman has ignored is that we have increased to a great extent the numbers of people who qualify for free services of one kind and another. It is that side of the picture that we have to consider, and it is unfair of the hon. Gentleman to paint so completely one-sided a picture as he has. One has only to look at the family income supplement, at what has been done for the disabled, at the attendance allowance, to see that we have taken a number of measures which will help certain groups in our community who were neglected under the previous Government.
  I turn now to those who have been affected by some of these increases in charges, and I deal first with the higher prescription charges to which a number of hon. Gentlemen have referred. I content myself with repeating what my right hon. Friend the Secretary of State
  742
  for the Social Services said about a fortnight ago when we debated prescription charges. In seeking out the priorities that I have mentioned, we have no intention of deterring any patient from obtaining necessary treatment. We shall certainly watch extremely closely as the new charges take effect what their impact is, and we shall look to see what changes may be necessary to avoid anyone who is deterred from getting treatment which he needs. This is very important.
  What is also important is the large number of people who are already exempt from paying for prescriptions. Some 23 million people, or 42 per cent. of the population—
  It being Ten o'clock, the Motion for the Adjournment of the House lapsed, without Question put.
  Motion made, and Question proposed, That this House do now adjourn.—[Mr. Fortescue.]
  Mr. Buchanan-Smith: I was saying that 42 per cent. of the population are exempted from prescription charges, in any event. That demonstrates the extent to which exemption applies already.
  Before I leave the general question of the Health Service and move on to some of the other services, perhaps I might mention that this is not a simple operation for the benefit of those who will gain from the reduction in income tax at the higher income levels, as the hon. Member for Fife, West tried to suggest. The reduction in income tax is welcomed not just by those in receipt of high incomes. It is widely welcomed, as the hon. Gentleman knows. Unfortunately, he is not prepared to admit it.
  The other point about these increased National Health Service charges is that by asking those who can afford it to pay for some of the services, it enables us to widen the scope of the existing services. In case the hon. Gentleman has forgotten, we announced last October that, over the next four years, another £110 million will be spent on the National Health Service. That is over and above what was planned by the previous Government. The money will be concentrated on those sectors which need it most, the elderly, the mentally handicapped and the physically handicapped.
  Mr. William Hamilton: The Government also intend to cut housing subsidies by between £100 million and £200 million, which means greatly increased rents for those who live in council houses.
  Mr. Buchanan-Smith: The hon. Gentleman is trying to widen the debate and, as usual, is twisting the facts. They have been debated many times in the House. The money which is at present spent on housing will be spent in a more effective way to benefit those who need it most.
  Mr. Hamilton: Read the White Paper.
  Mr. Buchanan-Smith: However, I dislike talking about the extra resources that we intend to devote to the Health Service. It is more important to look at the situation in real terms than in money terms. The money will be concentrated on those sectors which have been neglected in recent years. We hope to see an increase in expenditure in 1971–72 of the order of 6·1 per cent. That compares with an increase in real terms in 1970–71 of 3·8 per cent. and with an average over the years of Labour Government of a little over 4 per cent.
  The result of what we are doing will be that the available money will be spent more effectively to help those who need it most. It is not being dissipated on those who do not need it in the way that the hon. Gentleman suggested.
  I turn to the subjects of school meals and free milk. The hon. Gentleman made great play of the reduction in the number of children in Scotland taking school meals. I assure him that we shall watch the position. We shall make a survey later this month of what is happening in schools, and reach an assessment on the basis of it. I have no doubt that the hon. Gentleman will be asking Questions about the results of the survey, and I am sure that he will press us to say what we intend doing about it. We estimate that about one-third more children in Scotland will qualify for free school meals. We expect the present number of about 96,000 to rise to 129,000. Therefore, as a result of what we are doing, a further 33,000 children in Scotland will benefit by having free school meals.
  Mr. William Hamilton: They will qualify—not benefit.
  Mr. Buchanan-Smith: We shall see what happens in the event.
  It is true—as we said from the beginning when we announced our proposals for welfare milk—that those who qualified for cheap welfare milk will lose that qualification. But the important point to remember—and this is where the philosophy of the two parties is completely divided—is that instead of spreading what we can spend on this service across the board, whether or not everyone needs it, by concentrating our resources on the free milk for those who need it, we can provide it for a far greater number of children in Scotland than have benefited up to now. The average number of those who have benefited from free school milk in Scotland has been about 50,000. We expect this figure to rise to 70,000. In other words, another 20.000 people in Scotland, particularly children, will benefit from free milk. This is a step forward, not a step backward. It will certainly be a step forward for those individual children and their families.
  The debate has gone fairly wide, and I have tried to answer some of the more general points. I turn to the specific question of the publicity campaign about the new benefits introduced by the Conservative Government which are available for the first time, such as pensions for the over-80s, the family income supplement, attendance allowance, more help for the disabled, and the extension of free services to those who need them. The whole question of the publicity campaign was dealt with in the debate for prescription charges to which I referred. Much of the reasoning behind it was mentioned then. In a moment I will speak about the effect of the campaign, which is its most important part, but first I should like to deal with the specific point about those who thought they could benefit because of the advertisement they saw in the Press, but then found that they could not benefit. If anybody has been misled, I am sincerely very sorry. I will examine the examples the hon. Gentleman raised. I hope that he will give us these examples, and not just examples of types of welfare such as those raised by the hon. Member for Motherwell.
  Mr. Lawson: I do not expect the hon. Gentleman to be able to answer precisely the more or less precise matter I put to him, but since he says that he has given

  745
  a great deal of thought to the subject matter of our debate, it is not too much to ask him to tell us about the £17.95 and the statement about free optical and dental treatment. Is there a catch in that? What are the limits? How is the scheme operated?
  Mr. Buchanan-Smith: I am grateful to the hon. Gentleman. That was the precise point which I was about to come to. There are two particular points I wish to make on this matter. The first is the entirely general point that one has to make up one's mind, in the first place, whether a publicity campaign is worth while. The hon. Member for Fife, West slightly questioned, in a rather cynical way, whether one could justify the public money spent on the campaign. He says that he doubts the value of a publicity campaign at all. I put aside the results of the campaign for the moment. Some hon. Members may not go with the hon. Gentleman on the question of whether the campaign is worth while. I do not go with him, as a constituency Member of Parliament, and I am sure that it is not the view of other hon. Members of the House.
  One of the most sorry things I find very often, when dealing with constituents—not so often the ones who come to me but the ones I chance upon, for instance, when I see someone who has written to me and meet someone else by chance when I am going around the constituency—and what has always concerned me in my six years as a Member of Parliament—and I am sure this is true of the hon. Member for Fife, West and the hon. Member for Motherwell, with their far greater experience as Members of Parliament—is the number of people who are unaware of their entitlement to benefits and who fail to get the benefit they should because they do not know about it. Therefore, any publicity which we can give, by shouting about our schemes on the public and political platform and by telling our friends how good they are, is unsatisfactory unless we take the message to those who really need to know what the schemes are. If we do not do that we are failing. To that extent, a publicity campaign is absolutely necessary.
  This leads on to the question whether the kind of publicity campaign that we
  746
  have will make the greatest impact. It is true that if we were to answer the needs of every person who has a problem who could qualify for help under the different schemes, we should be producing sheaf upon sheaf of leaflets which could never be included in a Press or television campaign. After all, it is in the Press that we have carried out most of this campaign. For example, we have distributed 30 million leaflets in the course of the campaign. On television we have made 140 showings of a 30-second film. We want to have the impact to make those who are entitled to help aware of it, so that they can inquire and obtain details. If we give all the details in something which is meant to have an impact, we shall lose the impact to make our publicity a success. It is inevitable that we simply cannot, in physical terms, put in all the details needed for every individual to assess whether he is entitled or not. That is the first point.
  The advertisement—I have a print of it here—is couched in fairly general terms. It is couched in average terms, as I call them, which we believe will arouse the interest and bring forward the inquiries to help us to meet the needs of those who are entitled to benefit. If, at the same time, it brings forward those who are ultimately disappointed, I would say that I am sorry about it. But we will judge this by the kind of response we have had to the campaign and the help that has arisen from it.
  My second point is about the question of it being misleading. In all these advertisements—and this relates to the table in particular, and to the questions—although the hon. Member for Fife, West made a certain amount of fun of this, it is clearly stated in heavy type that the table is "a guide only." In other words, there is no question of trying to mislead or of this being political propaganda. The hon. Gentleman is drunk with his speeches on the Licensing (Abolition of State Management) Bill in Committee morning after morning and is carried away by his enthusiasm for his exaggeration. His enthusiasm for exaggeration did not fail him tonight.
  Anybody reading the table would be bound to read the cautionary note above. The table states that a married couple with an income of £17·95 may qualify for free

  747
  optical or dental treatment but there is this cautionary note
  "Examples of income at which you may qualify are given below. They can only be a very general guide because the limits are affected by the age of children, and such variables as rents, rates and expenses connected with work. The incomes shown are gross earnings and include, where payable, family allowances."
  Without knowing the personal circumstances of the constituent of the hon. Member for Motherwell, this explains why a married couple with an income of £17·95 might not necessarily qualify. It comes under the qualification of gross earnings and other variables. I hope that the advertisement would have aroused in the person concerned sufficient interest for him to find out just what he would qualify for.
  Mr. Lawson: The difference is so great. This old couple had an income more than £5 less than the gross figure stated but they did not qualify. This means either that the Government are very much less generous than they claim or that there is something wrong.
  Mr. Buchanan-Smith: This is why I should like to know the details of the case. I have spoken in terms of averages. It may be that the hon. Gentleman has hit on an extreme from an average. An average is always made up of a very wide wide range. If the advertisement is misleading, I should be interested to know and to take cognisance of it in any future advertising campaign. I accept that there seems to be wide discrepancy there.
  Apart from the advertising campaign in the Press and on television, leaflets have been distributed. A little red book entitled, "Family Benefits. Your Right to Claim them" has been made widely available. This leaflet describes in much more detail all the different welfare services which are available. Most people on reading the leaflet would be able to get a clear picture of whether they would qualify. In fairness, where questions of detail are involved it is carefully qualified so that people should not be misled.
  In addition, there has been a small edition of the red book which summarises what was in the Press. There is a leaflet entitled, "Free Prescriptions or Refund of Charges on Grounds of Income".
  748
  There has been a leaflet entitled "Dental and Optical Charges: How to claim exemption or help". There is a leaflet entitled, "Your right to free welfare milk and foods". We have conducted an advertising campaign of unprecedented scale in an attempt to bring to the notice of those in need how they can qualify and claim their entitlement.
  I turn to the impact of this campaign. I should be completely with the hon. Member for Fife, West, if we had issued a form of publicity campaign which showed only the bones of what there was and which misled people, but that is not the case. I should be with the hon. Gentleman if this were a very expensive campaign—as it is; it is not cheap to conduct such a campaign—and if it were not bringing results. In those circumstances, I should question it. My hon. Friend the Member for Lancaster (Mrs. Kellett) asked a Question of the Secretary of State for Social Services about the results on 11th May in column 70 of HANSARD. I have some more details since then.
  The campaign took place about the end of March and the beginning of April. On milk and welfare food, the average weekly claims before 1st April were 32. The weekly average for the first three weeks of April was 6,449, the total for the week ending 27th April was 26,350 and for the week ending 4th May 24,157 —a cumulative total of 69,854.
  The average weekly rate for prescriptions before 1st April was 346, the average for the first three weeks of April was 1,800, for the fourth week 12.793, for the week ending 4th May, 15,742—a cumulative total of 33,935—
  Mr. William Hamilton rose—
  Mr. Buchanan-Smith: I am sorry if the hon. Gentleman cannot take it, but I want to give these figures.
  On dental services, the weekly average before 1st April was 1,024. the average for the first three weeks was 1,463, the fourth week it was 5,438, and for the week ending 4th May it was 5,992—a total since 1st April of 15,719. I appreciate that claims merely measure interest aroused.
  On optical services, the weekly average of claims before 1st April was 1,572, the average for the first three weeks of April was 2,004, the total for the week

  749
  ending 27th April was 10,099 and for the week ending 4th May 12,002—a total of 28,013.
  I ask the House to judge whether this campaign has been a success in terms of interest aroused. Every penny invested has been justified and in percentage terms the increase has been astronomical.
  Mr. William Hamilton: Are these Scottish figures or statistics applying to the United Kingdom as a whole? Is the hon. Gentleman aware that it is pointless for him to give the number of applications unless we are told the number of those which were successful and those which were rejected?
  Mr. Buchanan-Smith: That is what I was about to do. I am always frank with the House.
  Mr. Hamilton: I would not say that.
  Mr. Buchanan-Smith: I am always straight and honest in dealing with hon. Gentlemen opposite, and I do not like to give only one side of the picture, as the hon. Gentleman did. I intend to paint the whole picture on this occasion so that, when people read the OFFICIAL REPORT of the debate, they will be able to judge for themselves.
  These figures cover the whole country. I do not have specific Scottish figures. I will make inquiries to see whether they can be made available. The Government react quickly, though we cannot react in a few hours in such a way as to provide every possible statistic the hon. Gentleman might required. Considering the short notice that he gave us of raising this subject on the Adjournment, he must be quite surprised at the number of statistics he is getting, and I am not finished yet.
  I come to the meat of this campaign and, as the hon. Gentleman said, both sides of the picture are necessary if the statistics are not to be misleading. As he says, what matters is the number of awards. One cannot assess whether they result directly from individual inquiries but one can make a fair comparison by taking the average number of weekly awards before 1st April and comparing them with the average number since that date. I will deal with the four services which I mentioned previously.
  750
  First, milk and welfare foods. The average before 1st April was 29 a week. For the first three weeks of April, the average was 2,291. In the fourth week of April, the figure was 7,621. In the week ending 4th May, the figure had risen to 10,400, giving a cumulative total since 1st April of 24,894.
  Now prescriptions. The average weekly number of awards was 253 prior to 1st April. For the first three weeks of April, the figure was 935. In the fourth week, it was 3,335. For the week ending 4th May, it had risen to 5,643, giving a cumulative total since 1st April of 11,783.
  Let us look at the dental services. The weekly average before 1st April was 438. This rose in the first three weeks of April to an average of 642. In the week ending 27th April, it was 673. In the week ending 4th May, the figure had risen to 1,410, giving a cumulative total of 4,009 since 1st April.
  Let us consider the awards made in respect of optical services. The weekly average before 1st April was 726. The average of the first three weeks of April was 972. For the week ending 27th April, it was 1,565. For the week ending 4th May, it had risen to 2,854, giving a cumulative total since 1st April of 7,335.
  Mr. Lawson rose—
  Mr. Buchanan-Smith: I will not give way.
  Mr. William Hamilton rose—
  Mr. Deputy Speaker (Sir Robert Grant-Ferris): Order.
  Mr. Buchanan-Smith: I have given way generously. Hon. Gentlemen opposite had ample opportunity in which to speak.
  Mr. Lawson: I thought the hon. Gentleman said he was always fair.
  Mr. Buchanan-Smith: These figures demonstrate beyond peradventure—
  Mr. Lawson: The hon. Gentleman should give way.
  Mr Deputy Speaker: Order. The hon. Gentleman must not keep interrupting from a sedentary position.
  Mr. Buchanan-Smith: These figures demonstrate how wrong hon. Gentlemen opposite are when they say—
  Mr. Lawson rose—
  Mr. Deputy Speaker: Order. I have told the hon. Gentleman that he must not keep intervening from a seated position.
  Mr. Lawson: On a point of order. We have been very orderly tonight. This has been a good-humoured debate.
  Mr. Buchanan-Smith: I have not given way to the hon. Gentleman.
  Mr. Deputy Speaker: Order. The hon. Member for Motherwell (Mr. Lawson) and I know each other very well. He will appreciate that hon. Members must respect what the Chair says.
  The Question having been proposed at Ten o'clock and the debate having continued for half an hour, Mr. DEPUTY SPEAKER adjourned the House Without Question, put, pursuant to the Standing Order.
  Adjourned at half-past Ten o'clock.

DEFENCE
  East of Suez
  East of Suez
  Malaysia and Singapore (Defence Arrangements)
  Malaysia and Singapore (Defence Arrangements)
  R.N. Detention Quarters, Portsmouth
  R.N. Detention Quarters, Portsmouth
  Ulster Defence Regiment
  Ulster Defence Regiment
  Royal Navy (Personal Case)
  Royal Navy (Personal Case)
  Ghurkas
  Ghurkas
  Equipment (Northern Ireland and Development Areas)
  Equipment (Northern Ireland and Development Areas)
  Air-Sea Rescue Service
  Air-Sea Rescue Service
  Shoeburyness
  Shoeburyness
  European Economic Community
  European Economic Community
HOME DEPARTMENT
  Easter (Dates)
  Easter (Dates)
  Magistrates' Courts (Committal Proceedings)
  Magistrates' Courts (Committal Proceedings)
  Hill Hall, Theydon Mount
  Hill Hall, Theydon Mount
EMPLOYMENT
  G.E.C.-A.E.I. (Strike)
  G.E.C.-A.E.I. (Strike)
  Huddersfield
  Huddersfield
  Post Office Workers (Inquiry into Pay)
  Post Office Workers (Inquiry into Pay)
  European Economic Community
  European Economic Community
  London Boroughs
  London Boroughs
  Scotland
  Scotland
EDUCATION AND SCIENCE
  Hearing Aids (Automatic Volume Control)
  Hearing Aids (Automatic Volume Control)
  School Milk
  School Milk
  School Meals
  School Meals
  Schools (Cost per Place)
  Schools (Cost per Place)
NATIONAL FINANCE
  Ulster Defence Regiment
  Ulster Defence Regiment
  Value-Added Tax
  Value-Added Tax
  Premium Bonds
  Premium Bonds
WALES
  Hawarden Bypass
  Hawarden Bypass
  A55 Road, Hawarden (Lighting Scheme)
  A55 Road, Hawarden (Lighting Scheme)
  Mobile X-ray Facilities
  Mobile X-ray Facilities
SOCIAL SERVICES
  Earnings-Related Supplement
  Earnings-Related Supplement
  Census
  Census
  Leaflet FB11
  Leaflet FB11
  Coal Miners (Respiratory Diseases)
  Coal Miners (Respiratory Diseases)
  Means-Tested Benefits (Claim Form)
  Means-Tested Benefits (Claim Form)
ENVIRONMENT
  Domestic Air Raid Shelters
  Domestic Air Raid Shelters
  Oil Pollution (Protection of Birds)
  Oil Pollution (Protection of Birds)
  Regional Economic Planning Councils
  Regional Economic Planning Councils
  Severnside Study
  Severnside Study
  Housing Starts (Northern Region)
  Housing Starts (Northern Region)
  Overweight Lorries
  Overweight Lorries
  Lorries (Aberdeenshire)
  Lorries (Aberdeenshire)
  PRESIDENT NIXON (VISIT)
  PRESIDENT NIXON (VISIT)
  NORTH-WEST INDUSTRIAL DEVELOPMENT ASSOCIATION
  NORTH-WEST INDUSTRIAL DEVELOPMENT ASSOCIATION
  EUROPEAN ECONOMIC COMMUNITY
  EUROPEAN ECONOMIC COMMUNITY
  CHANCELLOR OF THE EXCHEQUER (SPEECH)
  CHANCELLOR OF THE EXCHEQUER (SPEECH)
  SECRETARY OF STATE FOR EMPLOYMENT (SPEECH)
  SECRETARY OF STATE FOR EMPLOYMENT (SPEECH)
  SCOTLAND (PRIME MINISTER'S VISIT)
  SCOTLAND (PRIME MINISTER'S VISIT)
  SCOTTISH T.U.C. (PRESIDENT'S SPEECH)
  SCOTTISH T.U.C. (PRESIDENT'S SPEECH)
  SCHOOL MEALS (MINISTER'S BROADCAST)
  SCHOOL MEALS (MINISTER'S BROADCAST)
  FOOD (SCIENTIFIC RESEARCH)
  FOOD (SCIENTIFIC RESEARCH)
  NATIONAL UNITY
  NATIONAL UNITY
  PRIME MINISTER (OFFICIAL ENGAGEMENTS)
  PRIME MINISTER (OFFICIAL ENGAGEMENTS)
  STRIKES
  STRIKES
AGRICULTURE, FISHERIES AND FOOD
  Horse and Pony Stallion Licensing
  Horse and Pony Stallion Licensing
  Food Prices
  Food Prices
  Cereals (Import Levy Scheme)
  Cereals (Import Levy Scheme)
  Restrictive Practices Act
  Restrictive Practices Act
  Factory Fishing Ships (United Kingdom Waters)
  Factory Fishing Ships (United Kingdom Waters)
SCOTLAND
  Motorways
  Motorways
  Local Authority Mortgages
  Local Authority Mortgages
  Secondary Teachers
  Secondary Teachers
FOREIGN AND COMMONWEALTH AFFAIRS
  European Economic Community
  European Economic Community
  European Economic Community
  European Economic Community
TRADE AND INDUSTRY
  Oil Refinery (Portencross, Ayrshire)
  Oil Refinery (Portencross, Ayrshire)
  Coal Mines (Fatalities)
  Coal Mines (Fatalities)
  Tourism
  Tourism
  Short Brothers and Harland
  Short Brothers and Harland

Preamble
The House met at three of the clock:
The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Lichfield

SOMERSET HOUSE: ART GALLERY PROPOSAL
3.7 p.m.
LORD REIGATE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they have given any consideration to the better use of Somerset House as a gallery or museum.]
LORD MOWBRAY AND STOURTON: My Lords, I sympathise with the suggestion, but Her Majesty's Government must have regard to the practical difficulties and very high cost of providing alternative accommodation in Central London for any of the Departments housed in the building.
LORD REIGATE: My Lords, in view of the fact that it is the Government's avowed intention to reduce the number of civil servants, could they not begin by evacuating some of them from the better accommodation in Somerset House?
LORD MOWBRAY AND STOURTON: My Lords, without commenting upon the first part of that question, I am advised that there are certain parts of the Civil Service in Somerset House-the Principal Probate Registry, for instance-which for legal purposes must be near the law courts and Lincoln's Inn. The Inland Revenue have been there since 1785, and this building, by Sir William Chambers, was purpose-built for them.
LORD LEATHERLAND: My Lords, could the noble Lord tell us why he was so shy about answering the first part of the noble Lord's question? Is it that since the present Government have been in office the number of civil servants has leaped ahead so enormously?
LORD MOWBRAY AND STOURTON: I was not shy about that; it was not germane to the question.
LORD STRABOLGI: My Lords, would not the Government consider at least moving the Census Department to a locality in the suburbs of London? Secondly, will they consider the fact that Somerset House would be a very appropriate place to house the collection of British art now at the Tate Gallery? Will they remember that this suggestion probably has the approval of at least the curator of the Tate Gallery and, by and large, would put this lovely and gracious building to a more worthy use?
LORD MOWBRAY AND STOURTON: My Lords, I can assure the noble Lord that I have every sympathy, as I think my right honourable friends have, towards the feeling behind his suggestion. The place where the Registrar General has his offices is a very beautiful part, and we know there are lovely inner rooms. They would be very suitable for the purposes to which the noble Lord referred. Our main trouble is that if we moved the 2,000 civil servants who work there, we should have to find something like £10½million to rehouse them.
LORD BURNTWOOD: My Lords, may I ask whether a recommendation on this subject has been received from the Museums Commission, upon which several of your Lordships sit, since there are organisations which are most inconvenient for the public to use (such as the British Museum's collection of old newspapers at Colindale) that are frequented by students, which might be considered for occupancy of a small part of Somerset House?
LORD MOWBRAY AND STOURTON: My Lords, I believe this really is a matter for the Department of Education and Science, and they do not have the funds at the moment. If they were offered the accommodation, in addition to their normal programme of capital investment they would willingly take it, and could easily use it for purposes such as the noble Lord has indicated.
LORD MOYNE: My Lords, would the noble Lord not agree that the 2,000 civil servants, and the many members of the public who visit these buildings also

1191
deserve to benefit by beautiful surroundings
LORD MOWBRAY AND STOURTON: My Lords, I would certainly subscribe to the view that civil servants have as much right to have as much beauty in their lives as anybody else.
VISCOUNT NORWICH: My Lords, did I understand the noble Lord to say that Somerset House was built specifically by Sir William Chambers for the Inland Revenue?
LORD MOWBRAY AND STOURTON: My Lords, I am advised that Somerset House was one of the first purpose-built Government offices, being erected from 1776 onwards, following the passing of an Act of Parliament for the purpose of erecting Government offices.
VISCOUNT NORWICH: My Lords, will the noble Lord think again?
LORD MOWBRAY AND STOURTON: My Lords, I can go on thinking until the cows come home, but that is still my view.
LORD BERNSTEIN: My Lords, may I ask the noble Lord whether that figure of£10 ½million is a correct figure? I should like to know whether anybody has evaluated the benefits that would come from spending that money as against using Somerset House as a museum or a gallery. If so, could we have a Paper on it?
LORD MOWBRAY AND STOURTON: My Lords, I will advise my right honourable friend and let the noble Lord know about that.
LORD RAGLAN: My Lords, following on that question, would the Government consider at the same time the position of the Royal Gallery here, and Westminster Hall, as places which are perhaps two of the most beautiful places of assembly in London, for more frequent use as places of public assembly perhaps for concerts, pageants, oratorios and so on?
LORD MOWBRAY AND STOURTON: My Lords, my right honourable friend is always interested in ideas such as that, and I will certainly see that it is passed on to him.
LORD SLATER: My Lords, did I understand correctly that it would cost £10½million to rehouse the civil servants who are working at Somerset House? What consideration have the Government given to moving this particular establishment of civil servants to a development area where it would not cost the Government a penny? The local authorities would be responsible for finding housing accommodation for these people.
LORD MOWBRAY AND STOURTON: My Lords, the advice was that £10 ½ million would be the cost of a new building for the civil servants and their offices South of the Thames. It is important to realise that, although many noble Lords would like to see civil servants distributed all over the country, London is the seat of central Government and certain parts of the Civil Service must be near the seat of Government.
LORD STRABOLGI: My Lords, is the noble Lord not aware that the Census officials are on record as telling one of our newspapers that they would welcome a move to better accommodation elsewhere?
LORD MOWBRAY AND STOURTON: Yes, my Lords; I have heard that. In point of fact, the Census occupies only some 26,000 square feet out of a total of over 203,000 square feet occupied as clerical space.
LORD REIGATE: My Lords, would my noble friend ensure that the public have access to some of these very fine rooms in Somerset House at an appropriate time, if we cannot in fact evacuate the civil servants from it?
LORD MOWBRAY AND STOURTON: My Lords, I will bring that point to the attention of my right honourable friend. I do not know offhand how practical that would be. The public already have access to certain parts.
LORD BERNSTEIN: My Lords, I think it would be unfair to continue this questioning, but am I to take the noble Lord's answer and comment about the seat of Government to imply that the Government are not going to try to disperse civil servants and other organisations up and down the country? After all, York has a place in the new life—indeed, it had a place in the old life.

1193
It would be tragic if the Government's decision now is to concentrate on London.
THE LORD PRIVY SEAL (EARL JELLICOE): My Lords, since this matter comes very much within my departmental province, perhaps my noble friend would allow me to reply to the noble Lord, Lord Bernstein. I can inform him that we are at present engaged on a comprehensive and far-reaching exercise into seeing what further possibilities of dispersal there are, and this is fairly far forward. The point he made is very much in mind. But, having said that, I think it does give me an opportunity to say that I think we have made sufficient meal of Somerset House for the time being.

TRAFFIC CONTROL AND BOX CROSSINGS
3.15 p.m.
LORD FRASER OF LONSDALE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will encourage the police and/or traffic wardens to watch two or three crossings in London from time to time, without notice, and note whether vehicles are driving on to the crossings when the exit is not clear, because this practice could create a complete traffic block; and whether, if vehicles are found to be offending in this way, the drivers could be warned or even prosecuted as an example to others.]
THE MINISTER OF STATE, HOME OFFICE (LORD WINDLESHAM): My Lords, the Commissioner of Police of the Metropolis appreciates the effect this form of driving behaviour can have on the flow of traffic. The local police soon discover any tendency for traffic to jam at a particular junction and take steps to keep it moving; and on present information the Commissioner doubts whether it is necessary to watch road junctions selected at random. At important intersections, box junctions have been prescribed by order by the Greater London Council and the police enforce these orders in the same way as other traffic regulations.
LORD FRASER OF LONSDALE: My Lords, with respect to the noble Lord, may I ask whether he is aware that the police do not enforce them and that frequently an adventurous or selfish motorist or bus driver will edge his way into the cross-roads and cause a jam of 200 or 300 yards? It is happening week after week here in London. Is it not desirable to make an example of just one or two of these people in order to cure this practice?
LORD WINDLESHAM: My Lords, it is important to distinguish between the normal road junction and the intersection which has been designated as a box junction. Where there is a box junction it is a statutory offence to enter the box if the exit is not free. The police have prosecuted quite a number of motorists and secured convictions—I have the figures here—in cases where obstruction has occurred on box junctions. Where there is no box junction the situation is different: the police have no powers in this respect.
LORD SEGAL: My Lords, have the Government considered whether an additional deterrent could be provided by the abolition of the amber light, at least for a restricted experimental area?
LORD WINDLESHAM: That is another question, my Lords. If the noble Lord cares to take it up with me, I can discuss it with him and give him the results of the experience the police have in this connection.
LORD NUGENT OF GUILDFORD: My Lords, is the noble Lord aware that there is great force in the Question that has been put to him? Furthermore, is he aware that the implication is that a greater degree of enforcement is required at road junctions—with possibly more of these box junctions marked out—in order to prevent tailing back traffic at peak times, which causes complete blockage at these intersections? Is my noble friend aware that it really is necessary to have stricter enforcement?
LORD WINDLESHAM: My Lords, I entirely accept the spirit of that question. But with all respect to my noble friend, I do not think that it is a question of stricter enforcement, because enforcement of the box junction procedure is very strict indeed. As to intersections where

1195
traffic blocks are occurring at the moment, if any noble Lord would like to get in touch with me about them we will pass the facts on to the police. The police do make applications to the Greater London Council in respect of any intersections where they believe that serious and continuing congestion is taking place. The Greater London Council then decide whether or not they should be designated for a box junction.

SEVERNSIDE STUDY
THE EARL OF LAUDERDALE: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government whether they will now publish the Severnside Study.]
THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF THE ENVIRONMENT (LORD SANDFORD): My Lords, the Severnside Study will be published next week, on Wednesday, May 19, and copies will then be placed in the Library.
THE EARL OF LAUDERDALE: My Lords, in thanking the noble Lord for that reply, may I ask him whether it is the case that this document has sat on the Minister's desk since last June? May I also thank him for the prospect that, at least after a year and a day or so, we are going to see it?
LORD SANDFORD: My Lords, I am grateful to the noble Earl for his thanks. I am not in a position to confirm the purport of the first part of this question.
LORD LEATHERLAND: My Lords, will the noble Lord take steps to ensure that this document is "leaked", as every
1196
other Government document has been "leaked" in the last six months?
LORD SANDFORD: No, my Lords.

SOMERSET HOUSE RECORDS
3.20 p.m.
VISCOUNT NORWICH: My Lords, I beg leave to ask the Question which stands in my name on the Order Paper.
[The Question was as follows:
To ask Her Majesty's Government what steps have been taken, if any, towards the miniaturisation of the records in Somerset House to bring them into line with modern techniques, and in particular that of the microfiche system as described in The Times of April 29.]
THE MINISTER OF STATE, DEPARTMENT OF HEALTH AND SOCIAL SECURITY (LORD ABERDARE): My Lords, the process of microfilming the records of births, marriages and deaths in the custody of the Registrar General is already well in hand. The most up to date records are being produced as they become available; work has also recently started on the older documents, and is expected to be complete by 1975. For technical reasons the particular process used differs from that to which the noble Lord has drawn attention. A full description of the work has recently been published.
VISCOUNT NORWICH: My Lords, while thanking the noble Lord for that reply, would he not agree that at least when this process is taking place there will no longer be need for all the space in Somerset House which we have recently heard is essential for the continuance of the work for which Somerset House is at present used?
LORD ABERDARE: My Lords, I would not like to comment on the admirable answers given by my noble friend already.

WHITSUN RECESS AND INDUSTRIAL RELATIONS BILL
EARL ST. ALDWYN: My Lords, with your Lordships' permission, I should like to inform you that subject to the progress of business it is hoped that the House will rise for the Whitsun Recess on Thursday, May 27, and return on Tuesday, June 8.
LORD SHACKLETON: My Lords, perhaps this might be the moment at which I could ask the Government how hopeful they are that we shall have a Whitsun Recess? I think most of us are more concerned as to whether we are likely to get breakfast to-morrow morning. I should with great seriousness like to ask the noble Earl the Leader of the House whether he would take certain matters into account with regard to 'the conduct of the Industrial Relations Bill. It is my impression, and I think noble Lords will agree, that for the most part our affairs have been conducted with great courtesy on both sides of the House, and I think in this respect your Lordships can be proud that we are maintaining the standards that are normal. But in other respects I fear we shall not be maintaining the standards that are expected, apparently originally by the Government and by the public at large, in our consideration of this Bill.
To-day we start on what is clearly a new Bill—it could have been the Contracts of Employment (Amendment) Bill; admittedly, it is relevant to the Industrial Relations Bill, but it is a large subject on its own. We are glad to hear the noble Earl himself, who, I know, is interested in these matters of protection and dismissal and so on, is taking part. But the Government's stubborn insistence on getting this Bill through by some notional timetable is having quite serious effects. Whatever may have been said about some of the earlier stages of the Bill, feelings were very strong on this side of the House, and there were some admirable, though sometimes long, speeches. Noble Lords have been sitting here late at night, and there have been a number of noble Lords on both sides of the House who have been very faithful in their attendance, although we were interested now and again to see some new and less familiar faces; the Government
1198
Chief Whip has got quite a reserve to call on. The effect of the way we debate this (my noble friend Lord Shinwell referred to this the other day) late at night does mean that we are deprived of expertese on what is a very technical Bill, on which there are a number of legal points, and on which the noble Lord, Lord Drumalbyn, struggling manfully as he has, has I think on occasion—I do not mean it offensively—been somewhat at a loss to answer some of the important points.
We are now coming to a part of the Bill which really will call for very close examination. As I understand it, we are quite likely to sit very late to-night, and this has a really serious effect on other business; it is already affecting other business that we ought to be concentrating on, and there is a tendency to say "Let us get that through". Tomorrow there is an important Bill, which has already been discussed—I think it is the Law Reform (Miscellaneous Provisions) Bill—and we have had to organize—and for all I know, noble Lords opposite have had to do the same—that some of our colleagues who might have been here to-night should go home to-night in order to come in and take part in the proceedings on that Bill tomorrow; there may well be an important vote. Perhaps this is not a problem for noble Lords on that side, but to those of us who heard some of the considerably more lengthy speeches which came from certain Benches on that Bill when it was debated in an intermission, it does suggest to us that we are not really conducting this Bill properly.
In my time in your Lordships' House I have known one or two all-night sittings, usually when there was great urgency to get a measure through within a few days. I do beg the Government not to press us too hard on this. We have sat this week until after 2 a.m. on two nights. We are going to sit very late to-night. If we are to maintain our reputation as a place that seriously considers the matters that we are considering, and on the whole there has been a good deal less irrelevance on this Bill than I have sometimes noted on other Bills, even though it is lengthy, I do ask the Government to take this at a tolerable tempo. At the present moment it is imposing a

1199
very heavy strain. I do not wish to single out only the noble and learned Lord, the Lord Chancellor, because the same thing is affecting my noble and learned friend, the former Lord Chancellor, who has to be in the House tomorrow.
I am bound to say to the noble Earl that we shall have to consider the position very carefully. The Government have got the power and the majority. We do not wish to resort to undesirable tactics. I hope the Government will take this as a serious and objective representation of view; I do stress that I am not making this point for tactical reasons. It is a matter which I think the noble Earl may wish to draw to the attention of his colleagues, who, I believe, are bringing undue pressure on him.
EARL JELLICOE: My Lords, I shall, of course, take careful note of what the noble Lord, the Leader of the Opposition has said, as I always do. Straight away I would endorse one thing he said, and I do it very gladly, and that is that, despite the division there is in the House on this Bill, I think it is remarkable and noteworthy, and to the credit of your Lordships' House, that we have managed to maintain our normal standards of courtesy towards each other. I think this is so; I agree with the noble Lord about this. I hope very much that it will continue, because this is the tradition of your Lordships' House and I think we get much of our flavour from observing these courtesies. But, that said, I can only point out to the noble Lord the Leader of the Opposition that this is a major Bill and there is a measure of urgency attached to it, because I do believe it is in the wider national interest that this Bill should be enacted without undue delay.
But, of course, I am always open to representations from the noble Lord, the Leader of the Opposition, about the organisation of our business. One of the troubles here is that the usual channels have not been as open as they normally are, and if they were to be open a little bit more and we were thus able to discuss constructively together the programme and see how to meet the difficulties in a rational way, I would be very glad to do so. But I must point out to the noble Lord that there was another Bill within
1200
all our recollections before your Lordships' House where passions and feelings ran very high, and that was the London Government Bill. I think many noble Lords will recollect our Committee stage on that Bill. I should like to point out to the noble Lords opposite that we are already within eight hours of the total time we took on the Committee stage on the London Government Bill. I feel, therefore, that noble Lords are not in a position to complain about the amount of time we have allocated to this Bill. I must say, in all sincerity (although I believe there has been an improvement), in certain respects quite obviously we have not maintained our usual standards of relevance in the debate. I believe, if I may say so, that the remedy may lie just as much on the Benches opposite as with the organisation of Government business.
LORD SHACKLETON: My Lords, I opened my remarks in a conciliatory spirit. I made no accusations. I think it is a pity that the noble Earl, in his final remarks, took the tone he did. I do not wish to debate this matter. There is no comparison between the London Government Bill and this Bill. The noble Earl spoke about the usual channels being more open. The fact is that none of us—and he knows this as well as I do—can forecast the progress of this Bill; so much of it is uncharted territory to us, and is uncharted territory to the Government Front Bench. The Government may well think it is essential to get this Bill by a certain date. There is an argument that the sooner this Bill gets on the Statute Book and is shown to be as futile as we believe it to be the better, but that is not an argument for completing it by fixed dates. There is no reason why we should not sit, as we have in previous years, and as we sat on the Transport Bill in the days of the Labour Government, to the middle of August. I beg the Government to take this Bill at a speed at which it can be given proper consideration.
THE EARL OF SWINTON: My Lords, may I make this suggestion, having taken part in all the debates to which the noble Lord the Leader of the Opposition has referred when I was the Leader or Deputy Leader of the House? Would not much better progress be made if speeches—and they have been very relevant; I think

1201
every speech I have heard has—could be short? A great deal could be done by the noble Lord the Leader of the Opposition and his friends to ensure that that was so.
LORD SHACKLETON: My Lords, we all respect the noble Earl with his great experience, and I do not blame him for not being here in the middle of the night, because many of us cannot be here. I think he will note that now we are away from the opening highly controversial principles of the first clauses, the speeches have been short. Indeed, it is very much in our interest to pin the Government with short speeches, especially when we cannot get answers from them. Of course, there have been some lengthy speeches from that side of the House.
LORD BESWICK: My Lords, may I just ask this question? The noble Earl, Lord Jellicoe, observed that the usual channels were not as open as they might have been. May I ask him whether he is inviting us to have discussions about the progress of the Bill in order to get it within a date which the Government have already fixed in their own minds, or are they inviting us to have discussions about the date on which it would be reasonable to complete this Bill?
EARL JELLICOE: My Lords, I am inviting the noble Lord on the Front Bench opposite to have discussions as to what a reasonable timetable would be. I am very open. I have no preconceived date in my mind, but I am pretty certain that it would not be beyond the wit of man to make more rapid progress than we have been making until now.

RATING BILL
Read 3a, with the Amendments, and passed, and returned to the Commons.

INDUSTRIAL RELATIONS BILL
3.35 p m.
THEMINISTERWITHOUT PORTFOLIO (LORD DRUMALBYN): My Lords, I beg to move that the House do again resolve itself into Committee on this Bill.
Moved, That the House do again resolve itself into Committee.—(Lord Drumalbyn.)
LORD SHACKLETON: My Lords, are we right in assuming that when we come to Divisions the new Division procedure will be in force? I think it will be. Noble Lords might like to remember this. And of course they have six minutes to get here instead of four.
EARL ST. ALDWYN: My Lords, the noble Lord is quite correct. Yesterday we passed the necessary Motion so that the new procedure could come into operation. I hope your Lordships will all bear with tolerance with each other and all milers to make sure that this procedure works. We may have a little teething trouble to start with, but I think it is well worth having a go at it.
On Question, Motion agreed to.
House in Committee accordingly.
[The EARL OF LISTOWEL, in the Chair]
Schedule 1 [Provisions as to certain closed shop agreements]:
BARONESS WHITE BARONESS WHITE moved Amendment No. 143:
Page 123, line 1, leave out ("reasonable").
The noble Baroness said: I beg to move the Amendment standing in the name of my noble friends. It might be for the convenience of the Committee if we took Amendments Nos. 143 and 144 together. These are really just probing Amendments. We are dealing with that part of Schedule 1 which outlines the terms of reference for the Commission on Industrial Relations if the Industrial Court refers to them an application for the establishment of a closed shop. All that we are trying to find out in these particular Amendments is how far the Government it propose that the words

1203
mentioned in Nos. 143 and 144 respectively add anything to these terms of reference. "Reasonable" is a word which can be open to a great many interpretations. We are concerned that in a Bill of this sort, which is going to affect people in their places of work, no words should be included which might be open to differing interpretations and lead to friction, unnecessary argument, feelings of resentment, or anything of that kind among those whose applications for examination might be turned down because the Commission on Industrial Relations did not feel that the conditions had been satisfied.
When we come to the word "stable", this again is open to differing interpretations, and I doubt whether it adds anything useful to this part of the Schedule. If one is "promoting or maintaining arrangements for collective bargaining", surely that is sufficient. What is meant by the word "stable" in this connection? It does not seem to make any real sense. In these two modest Amendments—I repeat, they are no more than probing—we are concerned only that we should not put in words which could be the subject of possibly rather tedious argument in the future. We shall be happy to know just what it is the Government have in mind, more particularly for the word "stable", which we think could be a matter of dispute and which really adds nothing useful to this particular part of the Schedule.
LORD DRUMALBYN: I willingly respond to the noble Baroness's probing on this subject, and I hope I shall be able to convince her that these words do add something. The removal of the word "reasonable" would remove from the reference the need for the Commission on Industrial Relations to have regard to the reasonableness of the terms and conditions of employment that prevail in the industry, and to the likelihood, or otherwise, of the proposed approved closed shop agreement being necessary for terms and conditions that are reasonable to be maintained. I hope that is quite clear. It seems to me that this is something that is well within the power of the C.I.R. to judge, and we think that it is desirable that the terms and conditions of employment should be reasonable. Indeed, in some of our discussions
1204
already emphasis has been laid on the need for terms and conditions that are reasonable to be maintained. Reference has been made, for example, to the low average salaries in the acting profession. Part of the object here is to ensure that there is no exploitation and to see whether it is necessary to have an approved closed shop agreement in order to permit reasonable terms and conditions of employment.
The second Amendment, also, would remove the need for the C.I.R. to have regard to the stability of arrangements for collective bargaining, for which the proposed approved closed shop agreement would provide, and to have regard to whether such an agreement was necessary in order to achieve that stability. The noble Baroness will recall that the stability of collective bargaining is one of the objectives of this Bill, and it is one of the tests to which those who are responsible for its administration will have regard. Both of these words really add something important.
LORD SLATER: Is the noble Lord aware that his observations are going to lead to a certain amount of nostalgia among workers in industry? I do not see why the Bill should refer to "maintaining reasonable terms". If one is in conversation with employees in industry one asks "What are your terms of employment?", not "what are your reasonable terms? Why introduce this word "reasonable"? I do not know whether this is a legal term. Then we come to "stable arrangements". We could twist this one around in so many ways. The word "stable" can cover a very wide area and, if we wished, we could argue about both it and the word "reasonable". I sincerely hope that the Government will give further thought to these words and will get rid of them. After all, we seek to negotiate with an employer of labour in order to reach agreement. The one who is making the application starts with the highest possible denominator, and the employer starts with the lowest, and they have to come together and reach agreement. I do not see why these words are included.
3.44 p.m.
LORD POPPLEWELL: I should like to follow up what has been said, because

1205
these are very important words. Under the new law it would be left to the Commission to decide whether or not an application was reasonable. But the Commission will have a law Lord, a judge, as its Chairman—
THE LORD CHANCELLOR (LORD HAILSHAM OF ST. MARYLEBONE): The noble Lord is—
LORD POPPLEWELL: May I ask the noble and learned Lord to wait a moment? This ultimately goes to the Commission which at the present moment—
THE LORD CHANCELLOR: I interrupted the noble Lord because I think he made a slip of the tongue. He said that the Commission had a legal Chairman. That is not the intention. What I suspect he meant to say was that the Court had a legal chairman. But I should like him to confirm that, because it will obviously alter the nature of the reply if I have misunderstood him.
LORD POPPLEWELL: I accept the correction which the noble and learned Lord has made. But this is so very important, and it takes away those human relations that we know so well. What is the interpretation of "reasonable"? We know that the Government have instructed various organisations, who are considering wage applications and applications for improved conditions, to take the national economy into account. Will the Commission have the same instruction and have to take account of the national economy? Will that be one of the rules laid down in the code of practice? When an application is submitted, an absurdly low figure might be put in by the employers, with a much higher figure put in by the trade unions, and in the majority of cases a compromise will be arrived at. What will be the position of the Commission? Will it not have to decide which figure is reasonable? There could be a very wide gap. Will the definition of the word "reasonable" be embodied in the code of practice? These are very ambiguous words, interpretations of them may be very wide, and the Commission may not have a free hand to decide what is reasonable.
1206
What is reasonable in one case may be unreasonable in another. We have experienced what the Government consider reasonable in the public sector, but there is a different interpretation of the word when an application is made in the private sector. Will both the public sector and the private sector have the same rules? The Government must be a little more forthcoming in explaining what these words mean. Otherwise, we shall have to consider very seriously the effect of these words when the Bill becomes an Act.
LORD BERNSTEIN: May I ask the Minister whether he would consider these few clauses from the point of view of an employer? Assuming someone has decided to arrange for collective bargaining relating to workers would the word "stable" help or would it be difficult for them to overcome? I think that the clause would be better without the word "stable" which can have implications and decent industrialists and their personnel people would be confused in working out what it meant. Regarding the word "reasonable", we had an interesting debate on that last week but we got nowhere. Does it add anything to paragraph (b)? As an employer I would find those two words better removed than included.
3.50 p.m.
LORD DRUMALBYN: May I deal first with the points raised by the noble Lord, Lord Popplewell. The Commission on Industrial Relations, as they have been in the past, will be people with special knowledge of industrial relations whether they have gained it in trade unions or by leaching or as employers. There may be other categories as well, but the Commission as a whole will have special knowledge of industrial relations. Subsection (1) says that "the Commission shall consider". This is a matter for the Commission to consider; it is not a matter for the employers to consider except in so far as they are considering, together with the employees, whether or not td make, an application for an approved closed shop agreement. The clause says—
"the Commission shall consider whether it appears to them, that it is necessary for

1207
those workers to be comprised in an approved closed shop agreement for the purposes"—
and I take a particular criteria here—
"of maintaining reasonable terms and conditions of employment and reasonable prospects "—
and it is not proposed to omit this second "reasonable"—
"of continued employment for those workers;"
and secondly—
"of promoting or maintaining stable arrangements for collective bargaining relating to those workers;"
Viewed in that context, I find it difficult to see why the Opposition should wish to leave out these words. I am not sure that the noble Lord, Lord Slater, really understands that the exclusion of the words "reasonable" and "stable" would make it more difficult for the C.I.R. to decide in favour of a closed shop application because under an agency shop agreement some terms and conditions and some bargaining arrangements could be secured. The words "reasonable" and "stable" here differentiate this kind of application and the kind of judgment that the C.I.R. has to make in this case, from others—from applications for an agency shop agreement, for example.
We are here talking about industries of a special character where special considerations apply, where there is a risk that there may be instability in the bargaining arrangements, where there is a risk that unless special arrangements are made the terms and conditions of employment will not in future be reasonable. It is in order to ensure that the terms and conditions will be reasonable and that the arrangements for collective bargaining will be stable that the C.I.R. has to be satisfied that it is necessary for a closed shop agreement to be approved.
LORD SLATER: The noble Lord referred to this Commission as having special knowledge of labour relations. Surely if these words have to be left in the Bill, as is proposed by the Government, are not the Government seeking to question the intelligence of those people, sitting as a Commission, in determining the factor in front of them at the time of the application. Is it necessary to have the word "reasonable" if these people are so far advanced in their knowledge of labour relations as he has already
1208
stated? Surely the noble Lord would not want that doubt to go out from this House—questioning the intelligence of a body to be set up—if they are to have this special knowledge of labour relations. "Labour relations" cover a very wide field. These few people—whatever the number may be—will not be so authentic in their judgment as the noble Lord tries to present to the Committee. When they examine an application they will say it is a reasonable form of application and the terms are considered to be reasonable.
LORD CONESFORD: The words do not question in any way the intelligence or competence of the Commission. The Commission is told that it has to examine the proposals before it to see whether they are necessary for these purposes; and the purposes under sub-paragraph (b) are—
"maintaining reasonable terms and conditions of employment and reasonable prospects of continued employment for those workers …"
In all the speeches made from the other side of the Committee concerning the difficulty of the word "reasonable", it is only the first use of the word "reasonable" in line I that has been questioned. The word "reasonable" also occurs in line 2, and in that instance it has not been challenged. Whether these words are necessary or not, there is nothing insulting to the Commission in having them in, and I cannot see why it is undesirable in line 1 but perfectly acceptable in line 2.
3.58 p.m.
LORD SHINWELL: Surely the Commission will make its decision on the facts presented by those making the application and not on adjectives. Recently in the course of one of our debates I ventured to remark that there was too much language injected into this Bill. It would seem that those responsible for drafting the Bill must have consulted the Oxford Dictionary of Quotations and seized upon every kind of adjective which they thought relevant and if they were not convinced of its relevance they thought it might be desirable to have put it in. I would not worry about this, and I will give the reason why: the more language there is in the Bill, the more adjectives which require interpretation, the more trouble there is going to be. It seems to me that if the Commission, considering an application, has to come to a decision, on the basis of the language embodied in

1209
the Bill—whether the purposes of an application are"reasonable"or "stable", it is likely to cause a great deal of resentment. Is this what the Government want? Do they not want this Bill to be implemented in a reasonable or stable fashion, in an orderly fashion, in a constitutional and co-operative fashion. Is that what they want? It is what I want. I dislike many features of the Bill; but if we are going to have the Bill, let us put a reasonable, orderly and stable proposition.
The Government are building up an awful lot of trouble for themselves. Something has been said about the intervention of members of the legal profession. I do not make any accusation as to whether members of the legal profession are going to have "pickings" out of this Bill. If they are going to have "pickings", good luck to them! Most people want "pickings" at some time or other. So I dismiss this consideration. But I would say to the Government: do not inject too much in the way of adjectives and odds and ends into this Bill. And I would say to my noble friends on the Front Bench: really, I would not worry about it at all. If the Government want these words, let them have them—they will have an awful lot of trouble in consequence.
BARONESS WHITE: I think we have demonstrated that there can be considerable argument about the two words which we have suggested might be left out, but I am very glad that the noble Lord explained, at any rate in part, the reasons for putting them in. They are extremely important. All this part of the Schedule is extremely important, because it contains the conditions which will enable the Commission to decide whether or no an application for a closed shop should be accepted, or whether in their view an agency shop agreement would be sufficient. Therefore, we are very much concerned about the actual terms of every one of these conditions. It is well known, of course, that we on this side of the Committee would prefer a very different arrangement indeed for closed shops than those which are proposed in the Bill, and that we do not care for the agency shop agreement; and therefore it is of great concern to us on what terms the Commission is to decide whether or no the closed shop is to be allowed, or
1210
whether the agency shop is to be preferred. In this Schedule, of course, the Government are raising every kind of hurdle, which is going to make the closed shop extremely difficult. For those of us—and this goes for employers as well as unions—who believe that in many circumstances the closed shop is preferable, this erection of one hurdle after another for any application for a closed shop is a matter of very considerable concern. Therefore, I make no apology at all for having raised this matter. I said at the outset that we regarded these as probing Amendments, and we would not divide the Committee on them, but it is something about which we feel we want to have the fullest possible explanation from the Government. We have had some explanation, at any rate, and in the circumstances I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.3 p.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 145:
Page 123, line 16, leave out ("Industrial Court and shall furnish copies of it to").
The noble Baroness said: The object of this Amendment is to remove from this section of the Schedule the reference to the Industrial Court wherever we are able so to do. The reason for this, quite briefly, is that in our view the whole of this Bill is imposing far too complicated and legalistic provisions for the good health of industry. It means that at every step one is going to have dual references, where you have to bring in the Industrial Court as well as the Commission. Our own philosophy on this is, I think, perfectly clear, and we have expressed it at earlier stages of our deliberations. It is that industry should be left to manage its own affairs. The degree of intervention which the Government are seeking to impose in this legislation is, in our opinion, both unnecessary and harmful. In the particular area with which this Schedule is dealing—that of the establishment of the closed shop—again, in our opinion, it should be left to the employers and the trade unions to make up their own minds whether this is the sort of arrangement which they think is advantageous to themselves and to the industry. But, as I say, the Government have insisted on proposing to establish this complicated mechanism which is going to remove from the direct

1211
participants, from the principals in industry, responsibility for ordering their affairs. This is an interventionist philosophy which does not appeal to us. We feel, as I say, that those who are directly engaged in industry are the ones who are best able to judge whether or not, in the first place, they wish to work a closed shop agreement, and, secondly, whether they think it is practicable and desirable in their own particular industrial circumstances.
Now this Schedule insists upon the reference in the first instance to the Industrial Court, but the real work, if I may so put it, will be done by the Commission on Industrial Relations, and then they have to report back to the Industrial Court which, so far as we can make out, has to take their opinion. There is nothing in this Schedule, as far as I can understand, which enables the Industrial Court to query in any way the conclusions of the Commission on Industrial Relations. They do not cross-examine them, or anything of that sort: as I understand it, they simply receive the report. In those circumstances, we think that this whole business of transmitting the report to the Industrial Court and of bringing them in at various points is undesirable. We would very much prefer, if there has to be any sort of intervention by any external body at all, simply to keep it to the Commission. We feel, as I say, that this injection of legalism into industrial relations is undesirable and time-consuming. As I think one of my noble friends suggested, it may provide more jobs for lawyers. We have little doubt about that. If this is one of the objects of the Bill, I think it will surely be highly successful. But we really do not support the particular procedure in this Schedule, which includes the bringing in of the Industrial Court. I beg to move.
THE LORD CHANCELLOR: I hope to persuade the noble Baroness that her arguments are somewhat inconsequential in this particular instance. We have had this argument before, on Amendment No. 82, and it is only slightly different in context that I repeat it now. The basic arrangements that we are discussing, and which have now been passed in Clause 16, make exceptional provision for a
1212
closed shop. There is nothing intrinsically legalistic in this except the earlier provision, which we have likewise passed, that unless it gets over this hurdle the closed shop should be illegal. Now that is something about which we have differed, and, it may be, reasonably differed, but it is a subject which I think we may have exhausted. The point, therefore, is that, if you are going to allow an exceptional closed shop, you must have legal machinery of some kind by which it is recognised that it is an authorised closed shop. The functions of the Commission on Industrial Relations are advisory. It therefore follows that the Commission cannot be the source of authority. The source of authority must either be the Secretary of State or the Industrial Court. Because we do not hold an interventionist view, we wish it to be established through the authority of the Court, and not through the Secretary of State. The effect of the Amendment would be to have the report made to the Secretary of State and not to the Court. This is a question of policy, but I do not think that the noble Baroness's thinking about it is logical. Nor do I think that her charge in this instance, that we are pursuing a legalistic system, has any basis in fact.
BARONESS WHITE: This is one of those things on which I suppose we must agree to differ, because as the noble and learned Lord has quite rightly said, it stems from two completely different philosophies about industrial relations and really about the whole Bill. We object to this procedure in toto, and therefore we are objecting to parts of it seriatim, and this is one of those parts. I think we are perfectly entitled to do so. We are going to talk about the Secretary of State in one moment, I believe, so I will not refer to that at present. The noble Lord said that the Commission were entirely advisory. So they are, as at present constituted, but there might be something to be said for giving them certain authority in certain areas where the Commission is the body which has done all the examination of the position and where, so far as I can see, the Industrial Court has no real function other than just rubber-stamping the report of the Commission. If the Industrial Court had anything of substance to perform that might be another matter. We cannot see

1213
it. So far as we see it, perhaps the Industrial Court does not use a rubber stamp; may be it uses a very beautifully designed seal—I do not know—but the effect is the same: that it is not the Court that makes the investigation; it is the Commission.
If one had to have an external body of any kind we should rather have the Commission; and frankly in this sort of circumstance it is not very good for the Commission, it seems to me, to be put in a quasi-subordinate position to an Industrial Court when the Court itself does nothing. The Court just goes through motions; it does not do anything of consequence. It does not make up its mind about anything. It just accepts somebody else's report, and if the other body has come to a conclusion, then the Industrial Court, as we understand this Schedule, has to accept it. In those circumstances I should have 'thought it would be very much more dignified for the Commission if they were allowed to say at the end of the day, when they had made all the investigations according to the various terms of reference: "We are of the opinion and we so decree." I should have thought that this was something well worth considering. Why go through all this rigmarole of the Industrial Court?
On Question, Amendment negatived.
4.13 p.m.
BARONESS WHITE BARONESS WHITE
moved Amendment No. 146:
Page 123. line 18, leave out ("and to the Secretary of State").
The noble Baroness said: Here we come to the Secretary of State. The noble and learned Lord the Lord Chancellor, in replying to the earlier Amendment, said that the Government were not interventionist and did not wish to bring in the Secretary of State. In that case why should you bother to send him the report? One could send it as a matter of courtesy. As it is going to be published, his private secretary could even obtain it from Her Majesty's Stationery Office. We are suggesting that the report should go to the applicants, obviously, who ask that their industry should be organised on a closed shop basis. After all, it was they who made the submission in the first place. But what is the significance, if the Secretary of State is not to intervene, of, by Statute, insisting that the
1214
report should be sent to him? This seems to us illogical. In some of the propositions that were put forward by the last Administration, the Secretary of State was brought in at various stages. We understand that the present Government are against the Secretary of State in intervening in these matters. All right; we accept that that is their point of view. We suddenly find in the middle of this Schedule that it is going to be a statutory obligation on the Commission to transmit their report to the Industrial Court. If you are going to keep an Industrial Court, that has some sense. You must furnish copies of the report to the applicants. That, again, is a matter of sense and courtesy. But why, by Statute, do you then have to send it to the Secretary of State if he is not going to do anything about it? If he is not going to do anything about it, why bring him in at all? Perhaps when the confabulations on the Front Bench have concluded we may know just why at this particular point the Government think the Secretary of State should be particularly mentioned.
THE LORD CHANCELLOR: I think I may be able to give a reasonably short answer. First, the Secretary of State has a legitimate interest in industrial relations, and therefore the report should naturally be sent to him in copy. After all, when a Secretary of State sets up an Inquiry and a report is published, it is a matter of courtesy that it is usually addressed to him. There seems to be nothing more in it than that. I do not think there is anything about which we need make an issue. It seems to me an extraordinary suggestion that he should not be the recipient of a copy.
BARONESS WHITE: I made no such suggestion. I said I thought he would naturally, as a matter of courtesy, expect to receive it, but I also suggested that if it was going to be published in any case there should be no great trouble over that. I am sure the noble Lord will appreciate that if one takes the trouble specifically to mention a Minister of the Crown in a Schedule of this kind one would suppose that it was for some purpose, I do not think the report of the Commission will be addressed to the Secretary of State. It will be addressed, I would assume, to the Industrial Court, and therefore again this seems to us to

1215
be a few words by which this Bill might be shortened.
LORD POPPLEWELL: In the event of these reports being submitted to the Secretary of State, will they be made public in the same way that most of the repoorts are?
THE LORD CHANCELLOR: Yes, the clause provides that they will be published. Indeed that was the noble Baroness's point.
On Question, Amendment negatived.
4.18 p.m.
BARONESS WHITE BARONESS WHITE
moved Amendment No. 147:
Page 123, line 21, leave out ("and (2)")
The noble Baroness said: This Amendment is to leave out sub-paragraph (2) of paragraph 5 of this particular part of the Schedule, and we have chosen to do it this way as it seems to come properly here. What we are concerned about is the principle of this subsection; namely, that it is for the Commission to decide on the evidence whether an application for a closed shop shall be granted or whether, in the view of the Commission, an agency shop agreement would suffice. Again this stems from our whole attitude to this Part of the Bill. As I said on the earlier Amendment, in our view it should be for those directly concerned to decide whether or not they want a closed shop or an agency shop. One can make certain conditions and certain safeguards, but why should those who desire a closed shop, and who if they are to get it have to satisfy the various parts (a), (b), (c) and (d) of paragraph 5(1) of the Schedule be told by the Commission, "We believe that you could get on all right if you had just an agency shop. You do not need a closed shop?" That is what we object to.
However good the Commission may be—and I have no doubt that they will be experienced—they cannot have experience of all the industries of this country. It is unreasonable to think this, however learned they may be. It takes quite a long time to learn the ins and outs of two or three industries. The Commission are being asked to examine applications from various quarters; and these applications may be more numerous than the Government anticipate. There are closed shop agreements acceptable to
1216
both sides in a number of industries. The Commission are being asked to make up their mind whether a closed shop is the right thing for a particular industry or whether the watered-down version, the agency shop, would be sufficient. I can understand that the Government do not want closed shops at all. They have been driven to accepting them because they have been convinced that otherwise, in certain circumstances, industry would simply dissolve into chaos. That is not the point of view on this side of the Committee, or of a number of others who have nothing to do with the Opposition but who have great experience of industry. The object of this Amendment is to indicate that we do not think that this procedure whereby somebody else decides whether or not there should be a closed shop is satisfactory.
4.22 p.m.
LORD DRUMALBYN: The effect of this Amendment would be to say that although under paragraph 5(2) the Commission are obliged to consider whether it appears to them that in the circumstances the purposes specified in the preceding sub-paragraph could not reasonably be expected to be fulfilled by means of an agency agreement (although they are bound to consider that) this is not a matter in which the report of the Commission must indicate the results of their consideration. With respect, I think that that is not a very logical position to take. If the noble Baroness had wanted to object to the Commission considering this, then she should have put down an Amendment to leave out subsection (2).
BARONESS WHITE: I indicated that we might have moved to leave out subsection (2), but the substance of the argument is the same.
LORD DRUMALBYN: I recognise that. As to the main proposition, it expresses a point of view which is quite opposite to ours. The noble Baroness has correctly stated the position. We believe that it should not be made easy to get a closed shop agreement approved, because we believe that in most cases an agency shop agreement will do just as well. It is only where an agency shop agreement will not do just as well, and it is absolutely necessary to have a closed shop agreement, that we think there should be a closed shop agreement. That

1217
is the difference between us. It seems to me proper that one of the major things that the Commission should indicate in their report is whether an agency shop agreement would do just as well.
LORD SHINWELL: My noble friend suggested that the Government were opposed to the concept of the closed shop. I wonder about that. I should have thought that the Government would welcome the closed shop. Obviously there are preliminary arrangements before a closed shop is accepted: the Commission must be satisfied that everything is in order and is reasonable, and so on; that there is a prima facie case for such a closed shop. Does it not appear to the Government that if we had a succession of closed shops, with a right for somebody who has a conscientious objection to belonging to a trade union, or to paying contributions to a union, to make a contribution to charity instead, this would be to the advantage of the Government and also to the advantage of the general run of industry in this country? I should like a further explanation from the noble Lord, Lord Drumalbyn, about this, for it might facilitate our progress, if we could understand that the Government have no objection to a corporate body associated either with the shop floor or with a particular section of industry—because a closed shop might avoid a great deal of trouble. Surely in these circumstances the Government would rather welcome this concept of a closed shop. I should like to hear more from the noble Lord.
LORD DRUMALBYN: I gladly respond to the noble Lord. The fact is that the Government do welcome a closed shop, when it is necessary; but only when it is necessary, and not when an agency agreement would do just as well. I hope that the noble Lord will forgive me if I say that we discussed this matter very fully on Thursday night and I do not think he would wish us to go over the ground again.
On Question, Amendment negatived.
BARONESS WHITE BARONESS WHITE moved Amendment No. 148:
Page 123, line 21, leave out ("not").
The noble Baroness said: I think it might be desirable to take this whole
1218
group of Amendments together. I am willing to move each separately; but that might take a little time and we are anxious to save time. I think it might be convenient to take Amendments 148 to 155. Is that agreeable?
LORD DRUMALBYN: We willingly accede to this. I wonder if the noble Baroness, for the benefit of the House, could read out the effect of the Amendments if they were all accepted.
BARONESS WHITE: If I thought that they were all to be accepted, I should read them out three times.
LORD DRUMALBYN: Perhaps the noble Baroness will allow me to do so. I think I am right in saying that the result would be:
"If, on considering the matters specified in sub-paragraph (1) and (2) of paragraph 5 of this Schedule, the Commission are satisfied that for the purposes specified in sub-paragraph (1) of that paragraph it is appropriate for the workers in question to be comprised in an approved closed shop agreement, the report of the Commission shall indicate that fact."
BARONESS WHITE: That would be the text as amended. The purpose of all this is to indicate that we think the hurdles being erected in the path of employers and unions who wish to establish a closed shop are too high and too numerous. For one thing, we feel that the number and extent of the conditions laid down whereby the Commission has to make its recommendation are too great. There are four in paragraph 5: (a), (b), (c) and (d). We feel that any one of these could well be sufficient justification for the establishment of a closed shop, and that it should not be necessary that all four of them should be fulfilled in order to enable a closed shop to be acceptable.
After all, if a closed shop is necessary to maintain—I use the Government's words as they are here, unamended—
"reasonable terms and conditions of employment and reasonable prospects of continued employment for those workers"—
if that is a condition which cannot be adequately sustained without the establishment of a closed shop, surely that should be sufficient. If without a closed shop you are not able to maintain reasonable terms and conditions of employment, and you do not foresee reasonable prospects of continued employment for the workers concerned, there must be

1219
something seriously wrong with the state and organisation of the industry. If a closed shop could remedy the matter, surely it would be justified. We do not see why the duty should be placed on the Commission to have to go through all four of these conditions when any one of them, in our view, might be taken to be sufficient in itself.
Any one of these conditions might be taken. Let us take the next one. If, to promote or maintain stable arrangements for collective bargaining in a particular industry it is essential to have a closed shop, surely that also should be sufficient in itself. Even though there may be reasonable prospects of employment without it, if, nevertheless, the arrangements for collective bargaining are chaotic and there may be considerable disruption and industrial unrest without a closed shop arrangement, again, surely a closed shop is justified on those grounds. Furthermore, if it is supposed that collective agreements which have been reached—I am referring now to condition (d)—may be frustrated unless there is a closed shop, again it should be sufficient justification for proceeding with a closed shop. Finally we suggest that sub-paragraph (2) of paragraph 5 is one with which we are not in accord. The subject of the Industrial Court we have already discussed and I will not weary the Committee by going over that again. The only other Amendment we propose is that instead of using the word "necessary", the word "appropriate" would be sufficient; but we will not niggle too much about that. We thought that would be an improvement in the drafting in this paragraph. As I said, the nub of this is that we do not see that in their antagonism to the closed shop the Government should set up four hurdles where one is quite enough
4.33 p.m.
LORD BEAUMONT OF WHITLEY: The noble Baroness, Lady White, has put forward a very strong case about what she called the nub of these Amendments; this question of the four different conditions and the necessity for all of them to be satisfied in order to get a closed shop. I will not weary your Lordships by repeating the arguments she made. I would just say that any one of those reasons would, I think, be a satisfactory
1220
one for having a closed shop agreement. It would not be too easy a way to obtain a closed shop agreement. It would take quite a lot to satisfy any one of these four conditions. For that reason, subject to the Government's reply and the course of the debate, we on these Benches would be inclined to support Amendments Nos. 149 and 150 which represent the nub of the matter. I do not think the others go to the heart of the matter or that a case has been made out for them. But Nos. 149 and 150 seem to me very reasonable Amendments.
LORD BROWN: I hope the Government will look at the drafting in the light of these Amendments. I should like to put the matter to them quite shortly. If the Bill stands as it is—and we have to remember that we are considering the conditions necessary for the Commission to decide whether there shall be an approved closed shop—the following circumstance could easily arise. The Commission are satisfied—this is an hypothetical circumstance—that an approved closed shop is necessary to allow workers to continue to be an organised body; to maintain reasonable and stable conditions of employment; to maintain stable conditions for collective bargaining and to prevent collective agreements from being frustrated. But they are not satisfied that there are reasonable prospects of continued employment. This being the case, however satisfied the Commission may be on the other counts, they cannot give their agreement to an approved closed shop.
This seems to me to be a result that no Government could have intended to arise from the drafting of this Schedule. It means in fact that there will never be an approved closed shop where there is any prospect of reasonably stable employment in the future. This means that the only industries or associations which could have closed shops are those which are threatened by redundancy or where trade is falling off. The Government may reply, "We are arranging for that in every industry by this policy," but I am not suggesting for a moment that they would with sincerity use such an argument. Therefore this matter must be looked at because, so far as I can see, that is precisely what this Schedule says. It simply means that if there is a

1221
reasonable prospect of continued employment in an industry, there cannot be an assent from the Commission for an approved closed shop, and I do not believe the Government intended that.
LORD SHINWELL: My noble friend Lord Brown is on a point of substance, and one which, moreover, is directly relevant to Government policy as we have experienced recently, and of which we may have even more bitter experience in the future. The recommendation by the Commission, which cannot give a definite decision but is advisory in character, would be conditional on whether the Commission is sa tisfied of continuation of employment. Can that be said of any industry in respect of any application for a closed shop, or even an agency? There can be no guarantee of continuation of employment because, I understand, the Government are very reluctant to give an assurance of continuation of employment at any time. Therefore, I canot understand why these words have been introduced. Are they relevant to the situation? Are they in line with the Government's prospects about the future? This is a matter of considerable substance which my noble friend has raised; indeed, he has raised the whole philosophy behind this Bill. because unless there is some understanding about employment, there is no purpose in having either a closed shop or an agency shop or anything of the sort. I think we ought to have a clear explanation of what the Government mean by these words, by this condition which must be accepted before the Commission can advise that a closed shop would be accepted.
LORD BERNSTEIN: I should like to support my noble friend, Lord Brown. The words we were discussing before under paragraphs (b) and (c) are relative. "Reasonable prospects" is the euphoriurn of business, as we can see from to-day's Stock Exchange. Maybe the times will be different when an employer (I know that it is for the employee but he can only go forward with the employer's consent) makes an application for an approved closed shop. If we take out the words "reasonable" and "stable", as suggested before, the Government would be in a better position to deal with this Amendment now. I support my noble friend in asking for a
1222
reconsideration of the drafting of this whole Schedule, which I think would be worth while.
LORD DRUMALBYN: I think we are once again on a major difference of opinion. We are anxious to ensure that there should not be closed shops except where they are necessary and when an agency shop will not do. I want to deal with the debate as it arose and come to the point of the noble Lord, Lord Brown, in due course.
LORD BROWN: The noble Lord has said that there is a major difference about the Bill. I am with the noble Lord in saying that an approved closed shop should be set up only in certain conditions. My argument does not rest on the basis that the noble Lord indicated.
LORD DRUMALBYN: I am grateful to the noble Lord for declaring the support he has indicated in this case. But I hope he will forgive me for saying that he was not the first speaker in the debate and I am trying to deal with the debate in the order in which it arose. I was saying that there is a real difference of opinion here. The noble Baroness is anxious to make it relatively easy for a closed shop agreement to be approved and wants any one of the criteria to be adequate to secure approval. We have devised gateways to meet special conditions. The mind of the noble Lord, Lord Brown, will no doubt go back to the Restrictive Practices Act, which provided that an applicant had to go through all the gateways. I think that it should be the same here and unless all these four provisions are met, then the probability is that an agency shop will do just as well.
I hope that the noble Baroness will accept this, because the agency proposals remove the possibility that a worker can enjoy the benefits of union bargaining strength without making a proper financial contribution towards the services provided by the union. We do not accept the proposition that there should be widespread and general exceptions to the principle that the workers should have freedom of choice as regards to membership or non-membership. This is the difference that exists between us.
I come to the argument that was put forward by the noble Lord, Lord Brown.

1223
He argued that applicants might be able to go through all the other gateways but might be stuck through not being able to demonstrate that there was a reasonable prospect of continued employment. But this is not what is said. What the Commissioner has to do is to consider whether it appears that it is necessary for those workers to be embraced in an approved closed shop agreement for the purpose—and this is the purpose in question—of maintaining a reasonable prospect of continued employment for those workers. That does not mean absolute stability of employment for all the workers in the industry. What it means is that the prospects are reasonable and reasonable in all the circumstances. In other words, what he has to consider is whether the prospects would be more reasonable if there were an approved closed shop agreement than if there were not. That is what the words mean. They do not have the narrow meaning the noble Lord gave them of guaranteeing (the word used by the noble Lord, Lord Shinwell) continuation of employment. That is a complete bowdlerisation of the words in the Bill.
LORD BROWN: I really think that there may be a misunderstanding here. The Commissioner has to be satisfied that an approved closed shop is necessary to maintain reasonable prospects of continued employment for those workers. If the closed shop is not necessary for that purpose, because without it there is every prospect of prosperity and full employment, then he will not allow an approved closed shop. I did not quite follow the noble Lord, but I thought he had got it upside down. This means that wherever there is a growing industry, with every prospect of full employment and no danger of redundancy, the Commissioner will never be able to agree to an approved closed shop. That is what the Bill means. That is how it reads. I ask the noble Lord to look at this closely, because I do not think that the Government intend that to be the case.
LORD DRUMALBYN: Perhaps the noble Lord will allow me to amend slightly what he said. He said, "That is how the Bill reads". I would say, "That is how he reads the Bill". The point about the word "reasonable" is that it is a relative word, relative in the cir-
1224
cumstances of the case. The noble Lord has raised this point and of course we shall have a look at it to make certain that we are right in the interpretation put upon it and that the noble Lord's interpretation is wrong. The noble Lord's argument has been that he is afraid that this may make it impossible for a closed shop agreement to be made in circumstances where it ought to be made and where the only difficulty is that the general tendency of employment is downwards and therefore the C.I.R. would feel they were precluded by these words from approving an agreement. As the noble Lord has raised this question we shall look at it most carefully, but I must say to the noble Baroness that we are not able to accept this series of Amendments for the reasons which have been covered very considerably on earlier Amendments.
BARONESS WHITE: With great respect, I do not think that we have covered these particular conditions before, because it is only now in Schedule 1 that they are set out. I think that the Government should look carefully at the point raised by my noble friend Lord Brown, because I think it is open to considerable misunderstanding. Wherever this Bill is open to misunderstanding—and there are many places—that can lead to bad industrial relations and not good ones. After all, if the whole object of this great marathon of ours is to improve industrial relations, then the Government should be on the lookout for points such as that made by my noble friend Lord Brown, where, if he can misunderstand it, then the chances are that the shop steward on the floor will also misunderstand it.
I think I should be quite entitled to move every one of these Amendments (I shall move them, presumably, in any case) and divide on each one, but I think that would not be a reasonable use of our time. However, I must say that I am not in the least contented with the reply given by the Government. The noble Lord, Lord Beaumont of Whitley, who was not mentioned in the reply by the noble Lord, was on the principal point of this group of Amendments; that is that the four conditions taken together and comprehensively we think are utterly unreasonable. Therefore, I propose to my noble friends, and to all noble Lords who

1225
have been listening to the argument and, I trust, are convinced by it, that we should press Amendments Nos. 149 and 150, because that is the real kernel of the argument that we have put forward. Whereas it is true—and we would not for a moment deny it—that we should like to make the conditions of the closed shop somewhat easier, I think that by insisting on all four of these conditions in their entirety the Government are making a closed shop virtually impossible. It is not a questiton of gates; it is a question of a maze with 10 foot hedges all round.
On Question, Amendment negatived.
BARONESS WHITE: I beg to move Amendment No. 149:
Amendment moved—
Page 123, line 23, leave out ("all") and insert ("one of").—(Baroness White.)
LORD BEAUMONT OF WHITLEY: should like to say just a word or two in expansion of what I said earlier. I would advise my noble friends to support the noble Baroness on this Amendment. I should like to make it clear that we do not think that the word "necessary" in line 25 should be replaced by "appropriate". We do not think that paragraph 7(1)(b) should be left out. We are not trying to widen to any considerable degree the possibility of getting a closed shop. We are, to paraphrase words used by the noble Baroness, just trying to stop it from being absolutely impossible, because if it is absolutely impossible, I do not see the point in having it in.
4.54 p.m.
On Question, Whether the said Amendment (No. 149) shall be agreed to?
Their Lordships divided: Contents, 65; Not-Contents, 125.

CONTENTS

Addison, V.

Faringdon, L.

Rea, L.

Airedale, L.

Fiske, L.

Reay, L.

Amherst, E.

Gardiner, L.

Ritchie Calder, L.

Amulree, L.

Garnsworthy, L. [Teller.]

Sainsbury, L.

Archibald, L.

Henderson, L.

St. Davids, V.

Ardwick, L.

Henley, L.

Serota, Bs.

Bacon, Bs.

Hoy, L.

Shepherd, L.

Barrington, V.

Jacques, L.

Shinwell, L.

Beaumont of Whitley, L.

Janner, L.

Slater, L.

Bernstein, L.

Leatherland, L.

Snow, L.

Beswick, L.

Lindgren, L.

Sorensen, L.

Birk, Bs.

Llewelyn-Davies of Hastoe, Bs.

Stocks, Bs.

Blyton, L.

McLeavy, L.

Stonham, L.

Brockway, L.

Maelor, L.

Stow Hill, L.

Brown, L.

Meston, L.

Strabolgi, L.

Buckinghamshire, E.

Moyle, L.

Summerskill, Bs.

Burntwood, L.

Pargiter, L.

Swaythling, L.

Byers, L.

Phillips, Bs. [Teller.]

Taylor of Mansfield, L.

Champion, L.

Platt, L.

Wells-Pestell, L.

Chorley, L.

Plummer, Bs.

White, Bs.

Delacourt-Smith, L.

Popplewell, L.

Wootton of Abinger, Bs.

Diamond, L.

Raglan, L.

NOT-CONTENTS

Aberdare, L.

Clinton, L.

Eccles, V.

Ailwyn, L.

Clwyd, L.

Effingham, E.

Alport, L.

Colgrain, L.

Elliot of Harwood, Bs.

Amherst of Hackney, L.

Colyton, L.

Emmet of Amberley, Bs.

Ashbourne, L.

Conesford, L.

Exeter, M.

Balerno, L.

Cork and Orrery, E.

Falkland, V.

Balfour, E.

Cornwallis, L.

Ferrers, E.

Barnby, L.

Cottesloe, L.

Ferrier, L.

Beauchamp, E.

Cowley, E.

Fisher, L.

Belhaven and Stenton, L.

Craigavon, V.

Fortescue, E.

Belstead, L.

Cromartie, E.

Fraser of Lonsdale, L.

Berkeley, Bs.

Daventry, V.

Gage, V.

Blackford, L.

Denham, L. [Teller.]

Gisborough, L.

Boston, L.

Derwent, L.

Goschen, V. [Teller.]

Brecon, L.

Drumalbyn, L.

Grenfell, L.

Brooke of Cumnor, L.

Dudley, E.

Gridley, L.

Brooke of Ystradfellte, Bs.

Dundee, E.

Grimston of Westbury, L.

Carrington, L.

Dundonald, E.

Hacking, L.

Hailes, L.

Loudoun, C.

St. Just, L.

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

Lovat, L.

Salisbury, M.

Lucas of Chilworth, L.

Sandford, L.

Hankey, L.

Lyell, L.

Sandys, L.

Harlech, L.

MacAndrew, L.

Sempill, Ly.

Harris, L.

Malmesbury, E.

Sinclair of Cleeve, L.

Hastings, L.

Mancroft, L.

Somers, L.

Hatherton, L.

Mansfield, E.

Stamp, L.

Hives, L.

Merrivale, L.

Strang, L.

Hood, V.

Merthyr, L.

Strange, L.

Howard of Glossop, L.

Milverton, L.

Strange of Knokin, Bs.

Howe, E.

Monck, V.

Strathclyde, L.

Hurcomb, L.

Mottistone, L.

Strathcona and Mount Royal, L.

Hylton-Foster, Bs.

Moyne, L.

Suffield, L.

Ilford, L.

Northchurch, Bs.

Swansea, L.

Inchyra, L.

Nugent of Guildford, L.

Swinton, E.

Jellicoe, E. (L. Privy Seal.)

Oakshott, L.

Teviot, L.

Kemsley, V.

Rankeillour, L.

Teynham, L.

Kilmarnock, L.

Rochdale, V.

Thorneycroft, L.

Kindersley, L.

Rockley, L.

Tweedsmuir, L.

Lansdowne, M.

Rothes, E.

Vivian, L.

Latymer, L.

Ruthven of Freeland, L.

Wakefield of Kendal, L.

Lauderdale, E.

St. Aldwyn, E.

Willingdon, M.

Lothian, M.

St. Helens, L.

Windlesham, L.

On Question, Amendment agreed to

5.3 p.m.
BARONESS WHITE: I beg to move Amendment No. 151:
Amendment moved—
Page 123, line 25, leave out ("necessary") and insert ("appropriate").—(Baroness White.)
On Question, Amendment negatived.
BARONESS WHITE: I beg to move Amendment No. 152:
Amendment moved—
Page 123, line 26, leave out from ("agreement") to end of line 29.—(Baroness White.)
On Question, Amendment negatived.
BARONESS WHITE: I beg to move Amendment No. 153:
Amendment moved—
Page 123, line 30, leave out from ("fact") to end of line 32. —(Baroness White.)
On Question, Amendment negatived.
BARONESS WHITE: I beg to move Amendment No. 154:
Amendment moved—
Page 123, line 33, leave out sub-paragraph (2).—(Baroness White.)
On Question, Amendment negatived.
BARONESS WHITE: I beg to move Amendment No. 155.
Amendment moved—
Page 123, line 38, leave out paragraph 8. —(Baroness White.)
On Question, Amendment negatived.
5.5 p.m.
THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF EDUCATION AND SCIENCE (LORD BELSTEAD)THE PARLIAMENTARY UNDERSECRETARY OF STATE, DEPARTMENT OF EDUCATION AND SCIENCE (LORD BELSTEAD)moved Amendment No. 156:
Page 123, line 39, after ("no")("effective").
The noble Lord said: With your permission, I will take Amendments Nos. 156 and 157 together. As it stands, paragraph 8 of the Schedule does not permit the court to approve a closed shop agreement if an application for a ballot is being made before the end of the period allowed, even though the application does not receive the required support of the necessary one-fifth of the workers concerned. Clearly that was certainly not intended by the Bill. As the Schedule stands, a single relevant worker could frustrate the approval of a closed shop agreement. The proposed Amendments remove that anomaly by ensuring that the court will only be prevented under paragraph 8 of the Schedule from approving an agreement, following a recommendation of approval by the court where an effective application for a ballot is made; and an effective application will be one which is defined in Amendment No. 187, which has the support of at least one-fifth of the workers concerned, so that a ballot on the issue may be approved under the provision of paragraph 11(1) of the Schedule.
I realise that there are differences of opinion between the two sides of the

1229
Committee on the necessity and desirability of balloting under this Schedule, but I hope that noble Lords opposite will agree that this is a move in the direction which they would approve, and it is certainly a move in the direction which the Bill intended.
BARONESS WHITE: Obviously the Government have woken up to a loophole in the Bill which they are seeking to close. We found it fairly confusing to try to understand the intention of this particular part of the Schedule. It seemed that it was a contracting-out procedure rather than a contracting-in procedure, but the fact that the Bill was drafted in this way (and it is only at this relatively late stage in this discussion that the Government have realised the effect of the Bill as drafted) is just one more indication of what a complicated Bill this is. If we did not have the complex machinery which is required for the establishment of a closed shop we should not have to worry about this particular Amendment.
We shall not oppose the Amendment; we can see the sense of it within the context of the Schedule and we are just sorry that we must have such a complicated piece of machinery in order to carry out the provisions of the Schedule; but even the Government's draftsmen had not realised that there was the possibility of one single individual frustrating the application.
LORD BERNSTEIN: In view of the fact that the Government have come forward, wisely, to stop a loophole and to deal with a piece of cumbersome machinery in the Bill, may we recommend to them that they should go through the rest of the Bill to see whether they can reduce the legal jargon and make the Bill clearer to laymen like myself?
LORD BELSTEAD: I beg to move Amendment No. 157.
Amendment moved—
Page 123, line 42, at end insert—
("( )In this paragraph "effective application" means any application which is not precluded by paragraph 10 of this Schedule from being entertained by the Industrial Court."). —(Lord Belstead.)
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD AIREDALE): Before calling Amendment No. 158, I should point out that it pre-empts Amendment No. 159; so that if Amendment No. 158 is agreed to I shall not be able to call Amendment No. 159.
5.9 p.m.
LORD GARDINER LORD GARDINER moved Amendment No. 158:
Page 124, leave out Part II of Schedule 1.
The noble and learned Lord said: I beg to move the Amendment standing in the name of my noble friend Lord Delacourt-Smith. This Amendment is to leave out Part II of Schedule 1 of the Bill, that Part which deals with the holding of ballots. May I, to save misunderstanding, make two preliminary observations? First of all, I am in favour of an Industrial Relations Bill. The Government of which I was a member introduced one which went so far as they could get, depending upon co-operation from both sides of industry, the then Government rightly or wrongly taking the view that co-operation was essential for an Industrial Relations Bill. Secondly, that Bill contained provision for the holding of a ballot. Owing to the Election, it was not a Bill which was examined in detail; and it did not make any proper provision for what was to happen if there was a dispute as to the result of a ballot.
Of course—and this is the only point with which I want to deal, although others of my noble friends may have other points upon this part of the Schedule—a ballot may be extremely complicated. If we take, for example, the Engineering Federation, I think they have one and a quarter million members, and it must be realised that whoever is going to conduct the ballot has a very big administrative job on his hands. There may well arise a dispute as to what the result of the ballot is. We should all be very shocked if somebody suggested that the decision of the returning officer was to be final and no one could inquire into it. We recognise that returning officers are fallible. Even though they are people like town clerks and clerks of the peace, they may make a mistake. A wrong pile of papers may get into the wrong file for voting purposes or be counted wrongly; there can be

1231
arithmetical mistakes; there can be differences of view as to what is a spoiled paper, and so forth. So we provide a rather elaborate system of appeals to an Election court, and of course the court can order the returning officer to send the ballot boxes to the court and they can look at the papers themselves.
What is provided so far in this Schedule is that the Commission shall determine whether the ballot is to be taken by the Commission, or is to be taken under the supervision of the Commission by some other body—and we have had no real explanation as to what other body—and what the arrangements are to be, and should arrange for the ballot to be taken accordingly. Then it is provided:
"After the ballot has been taken, the Commission shall report the result of the ballot to the Industrial Court …".
Supposing somebody does not think that the Commission has the answer right, there is at the moment no means of appeal and no way of checking that; nor has the Industrial Court itself any power at all.
Moreover, although here we are dealing with closed shop agreement ballots, it must be remembered that this very complicated Bill provides in Clauses 11 and 12 for a ballot on agency shops; in Clauses 13 and 14 for ballots on the continuation of an agency shop agreement; Clauses 43 to 48, ballots on sole bargaining agents; Clauses 49 to 51, ballots on ending recognition, and Clauses 137 to 141, ballots on emergency conditions. And the Bill, whichever type of ballot it is dealing with, provides that, whatever the Commission says is the result of the ballot, the Court is bound to make an Order. So one might take for example an agency shop agreement which has existed for 25 years, with the full support of the employers and the trade union; they have never had any trouble and of course they want to continue with it. But if a limited number of disgruntled members object, then a ballot can be ordered. Then we have this remarkable provision. Whereas usually in our democracy a majority who vote decide, here this extraordinary provision lays down that the employers and the union must get more than 50 per cent. of those eligible to vote.
If in such a case the Commission report that they have not a majority, the Court
1232
is bound to accept that. But if it comes to the knowledge of the employers and the union, both of whom want the agreement to go on, that the Commission has been wrong about this— there is a factual mistake, or votes have been wrongly counted, as the case may be—no provision is made at the moment as to who can determine this dispute.
When I first raised this question and pointed out that of course in these circumstances the Industrial Court is a rubber stamp, the noble and learned Lord the Lord Chancellor said a word about its not being a rubber stamp, but he said nothing at all in answer to the question, "If there is a bona fide dispute as to whether the report of the result is right, who is to decide it?" I do not complain of that at all because I raised the question at half-past two one morning, and this is a frightfully complicated Bill and even noble and learned Lord Chancellors cannot be expected to know everything that is in it. I then raised the matter on a second occasion, and the noble Lord, Lord Belstead, very naturally, and if I may say so very courteously, said that this was not a point that he was familiar with but he would make inquiries about it. At a later point in the debate he received one of the pieces of paper which Ministers are apt to receive, and he said:
"The answer to the noble and learned Lord's question on which I had to receive advice is that there would automatically be a right of appeal to the Divisional Court if the C.I.R., as the noble and learned Lord quite rightly pointed out, exceeded its powers or erred or acted contrary to its statutory duty under this Bill. For this reason we think that there would be no need for a special appeal provision."
Of course, there is not a word in the Bill or in any Schedule about anyone having an appeal from the C.I.R. to a Divisional Court. If the noble and learned Lord the Lord Chancellor was here I think he would agree with me that whoever wrote the piece of paper meant was that if a statutory body exceeds its statutory powers, then under the prerogative writs of certiorari, mandamus, and prohibition one can go to a Divisional Court. But, of course, I was not speaking about a case of that kind at all. A Divisional Court does not decide disputes of fact. I was not suggesting any case in which the Commission would exceed its statutory

1233
powers; I was simply raising a case of what was to happen if it made a mistake. Elections are complicated matters, and we have had quite a large number of election petitions where a court has had to go into the question.
In any case, trade union ballots are not necessarily all that simple. I once spent between three and six weeks of my life to prove that the declared election result of the re-election of the Communist president of a trade union was wrong; that the election had in fact been manipulated by a fairly small number of Communist area organisers and Communist branch secretaries, accompanied by a good deal of fraud. My recollection is that I called 123 witnesses to prove that this was so. So these things are not always all this simple. If there is a dispute, therefore, as to whether the returning officer's report of who has won an election or a ballot is correct, one must provide who is to decide the dispute.
I raise this point with some reluctance because if you have a Bill to which, for one reason or another, you are opposed, and you see that it is literally unworkable, it is politically tempting if you sit on this side of the Committee to say, "For goodness' sake don't raise that! Leave it alone." But then I feel very strongly that, particularly in a case where the Government have prevented the other Chamber from considering the details of a Bill by a guillotine, it is essentially the responsibility of this House which we have no right to shirk to fulfil our duty as a revising Chamber. Here I am doing something to improve the Bill because that is part of our duty; and this is obviously a point which the Government simply have not thought out. There simply must be someone to determine who is to decide if the employers and the trade union say, "We have received information which leads us honestly to believe that the return of the Commission saying that we have lost the ballot is not right." Some of these ballots are going to be very large indeed, and these matters may not come to the notice of those concerned until they know what the report of the Commission is. It may be that some people, where large numbers are involved, say they never received their ballot papers.
The conduct of ballots is not all that easy, and this will never work unless appropriate machinery is provided. This is why for the third time I venture to ask the question, what is to happen if the Commission make a mistake? I am not suggesting they will act in bad faith or exceed their statutory powers, but suppose they say that the employers and the trade unions have lost the ballot and therefore the Industrial Court has no power to do anything except to extinguish the agreement, and it is said "But that is wrong, because if you recount the votes and do it properly this time you will find that in fact we won". For the third time, I venture to ask this question.
5.21 p.m.
LORD CONESFORD: Though my approach to this part of the Schedule differs horn that of the noble and learned Lord who has just addressed the Committee, I am very glad that this Amendment gas been put down, because it will enable me to make probably my only speech on this Schedule, to make my point of view clear, and to make the strongest possible appeal I can to the Government to consider certain matters before the Report stage. I have not myself set down any Amendments, and therefore it is an appeal to the Government. I will tell them what I think is wrong with a paragraph of the Schedule and what lies behind it. I think the noble and learned Lord was thinking particularly of paragraph 15 of the Schedule.
My objection—without saying anything about his point on paragraph 15; on that, with him, I look forward to hearing the reply—is to paragraph 14. Paragraph 14 says:
"If the result of the ballot, as so reported, is that a majority of the workers eligible to vote in the ballot have voted in favour of the proposed agreement, the Industrial Court shall make an order approving the proposals embodied in the draft agreement which accompanied the initial application."
They are given no alternative whatsoever, nor can argument, so far as I can see, be addressed to them that they should not approve the scheme. I take the view — it may be I am the only one that takes it, although I am not certain—that Clause 16 of the Bill, saying that in the circumstances outlined a man shall be compelled

1235
to join a trade union, is a breach of an express provision of paragraph 20 of the Universal Declaration of Human Rights. I think that matters, for the reasons I gave in an earlier intervention. I know it would be hopeless to try to leave out Clause 16 altogether; it has passed another place; it has a large measure of approval in both Houses, though I would point out that it was passed by a majority of only two in another place.
What I beg noble Lords to consider, wherever they sit in this Chamber, is whether there ought not to be a chance, somewhere, for the court to consider an objection on these lines: that the trade union (which, if the application is granted, will be the only trade union and a compulsory trade union in the place concerned) has shown by its conduct that it is quite unworthy to be given this universal authority and to command this compulsory membership. I beg members of the Committee, wherever they sit, if they will, to dismiss from their minds Equity and the Seamen's Union. They may be convinced that they know enough about those two unions to be sure that no such objection would be likely to be put forward or to be successfully maintained to either of them. But this goes much wider. We have already passed the clause. If we pass the Schedule, and this part of the Schedule containing paragraph 14, whatever trade union is proposed in a future closed shop, provided it has passed these tests that have already been laid down, ballot and so on, then no matter how oppressive it may have been in its past conduct, either to its own members or to people it has sought to compel to become members or to people with whose rights and freedom it had proposed to interfere, whatever its conduct had been, there would be nobody who could go to the Court and say "We object on these grounds".
As I said, I have not put down any Amendment, but I implore the Government to consider this objection to the universal closed shop, from which the only escape is to be conscientious objection, and to ask themselves whether the Court ought not to be entitled to consider objections when the matter comes before it. I have not drafted the grounds of the objection, nor who should be entitled to object, but I beg the Government to
1236
realise that I am raising a serious point that concerns individual liberty, and indeed a 0liberty enshrined in the Universal Declaration of Human Rights. I beg the Government—if, as I know, they believe in the Clause sufficiently to insist on its being in the Bill, and have in mind, I know, two particular industries—to realise that there are these potential evils if it is sought to extend the privilege to other industries. The right protection, in my submission, is for the Court to have some power to entertain objections.
LORD POPPLEWELL: I feel this is a most peculiar argument advanced by the noble Lord, Lord Conesford. His premise is that possibly a ballot taking place like this may result in a majority vote in favour of a closed shop, and, it is suggested, this may give power to certain unions which would not be fitted to hold that power. Who is to decide this? The noble Lord says someone else must decide. But surely the very principle involved in this particular clause indicates, first that 20 per cent. must make the request in writing, and then over 50 per cent. of those eligible to vote must record their vote in favour. Are not they the correct people to decide? The noble Lord suggests that someone may object. No matter what law, what regulation we have in this free society of ours someone may, and will, object. Lots of people object to paying the education rate; lots of people object to paying various local government rates or taxes; but it is the law of the land. The majority must decide on this matter, and on a democratic basis these other people, for the time being, must accept it. This is the position with this clause.
Some unions to-day have a system of ballots before finality arises on certain decisions; other unions have not. You find that such as the miners, for instance, where it is comparatively easy for them at a meeting to take a ballot. There are organisations with a scattered membership, and the seamen are supposed to be exempt because of their scattered membership. There are various transport organisations, and the railways, where it may be difficult to get a ballot quickly and a decision quickly. It also means that before a strike is declared a ballot must take place, and the people negotiating naturally arrive at certain difficulties or conclusions which they have

1237
to accept or reject. Now this clause takes away the final decision of those people who are bargining. Once a ballot has taken place, does it mean that another ballot has to take place if the full terms of reference of the first ballot have not been maintained? This increases the difficulties, and one can see that, instead of leading to quick settlements, from time to time negotiations may go on for a longer period than necessary.
Another difficulty that arises is that the Commission will have to conduct the ballot. They will have to do it themselves, or see that someone else does it. What powers will be vested in the Commission so far as the actual conducting of the ballot is concerned? We have some of our mining friends here. One remembers that at one particular time in the mining industry the controversy was so great that they could not conduct any union business on the pit premises. Therefore, to arrive at some decision people had to go round to their homes, or conduct a ballot outside the particular industrial undertaking involved. Will powers be given that, where a ballot has to be taken, the employer has to provide facilities for taking that ballot? I suppose this difficulty can be overcome all right, but I think some reference to it ought to be made to enlighten us on the subject.
The next point that arises has been referred to far more adequately than I can hope to do by the noble and learned Lord, Lord Gardiner. What is going to happen so far as ballot rigging is concerned? It is not entirely unknown, and the noble and learned Lord referred to that extremely difficult case he had to deal with. These are some of the problems where, instead of attempting to enforce these particular provisions, further discussions ought to have taken place with the Trades Union Congress, representing the organised trade unions affected, in order to go into more detail as to what is the best applicable for any given industry. This subject bristles with difficulties, and far more thought ought to be given than just thrusting it across and saying that a ballot, under these particular terms and conditions, must apply in these circumstances.
THE EARL OF DUDLEY: This Bill is about balance. In view of the earlier remarks
1238
of the noble Lord, Lord Conesford, I should like to introduce what I believe to be a little balance into this argument about the closed shop. Naturally I accept that we all dislike being associated—whether in legislation or in practice—in an activity which seems to carry with it the threat of excluding a man from a job. It offends against our sense of fair play. As the noble Lord, Lord Conesford, said, it is written into the Universal Declaration of Human Rights. Noble Lords may not remember that in this House in 1901 there was a majority decision of noble and learned Lords in which the view was taken that individuals had an equal right to choose with whom and where they should work. That was the view taken 70 years ago in this House.
Of course, a closed shop is a majority decision, or the view of a majority of workers, that they do not wish to work with a minority who have chosen, or who decide for one reason or another, not to be members of the majority's union. In taking that choice they may carry it through to the point of downing tools and walking out, unless their wishes are acceded to. If they do, not only will the particular industry, or company, be disrupted, but the national interest may well be affected. I leave it to the individual consciences of noble Lords to decide, when this conflict between the national interest and individual rights takes place, where and which policy noble Lords would uphold. I shall not keep noble Lords much longer. I well understand that this compulsion might be objectionable if people were being compelled to do something which was, in itself, had, but I cannot—and I have had a number of years in industry—see that there is anything particularly bad about a man's being asked to join a trade union. On the contrary, very often the employer will consider it beneficial that he should do so. It will certainly be in the workers' interest, and it may well be in the national interest.
LORD BYERS: May I interrupt the noble Lord for a moment? Are we not discussing Part II regarding the ballot, and not the principle of the closed shop?
THE EARL OF DUDLEY: I accept that, but I felt it was necessary to say this in view of the remarks about human

1239
rights, and individual rights, in connection with the closed shop which were made by the noble Lord, Lord Conesford, not only the day before yesterday but also to-day. I feel that in this context, and in the context of Schedule 1, some reply should be made from this side of the House to show that not all of us are in agreement with him. I have listened patiently for several days, and I felt I ought to reply.
LORD BYERS: The fact that the noble Lord, Lord Conesford, was out of order does not justify the noble Earl in being out of order.
LORD CONESFORD: I am sorry that the noble Lord, Lord Byers, took the view that I was out of order. Will he read paragraph 14 of Schedule 1, which the Amendment of the noble and learned Lord proposes to leave out? I am criticising a particular provision in the Schedule which it is proposed, by this Amendment, to leave out. I do not think that the noble Lord, Lord Byers, who is a very old friend, can really argue that that is out of order.
LORD BYERS: I apologise; if the noble Lord was out of order, it was only slightly.
5.40 p.m.
LORD DIAMOND: I do not know whether the noble Lord would prefer to reply to the debate at this stage? I have further comments to make which are complementary to what my noble and learned friend said, and relate to the whole of Part II. Perhaps it would be convenient if I explained to your Lordships why this Amendment goes even wider than the matters to which my noble and learned friend referred. My noble friend made it quite clear that he was opposed to Clause 15, and the noble Lord, Lord Conesford, is opposed to Clause 14. I am opposed to Clauses 13, 12, 11, 10 and 9. If all those oppositions are upheld, then Part II will be removed and I am suggesting that the sensible course would be for it to be removed.
I am particularly grateful not only to my noble and learned friend who made, with the complete and full authority of the distinguished office which he previously held, what everybody must realize
1240
to be a most penetrating case and one that must shock all of us who believe in the dignity of the courts, but also to the noble Earl, Lord Dudley, for what he thought it right to add to put the matter in context. I thought he was absolutely fair and objective in making clear that this is not a simple matter. This is a very difficult matter of individual liberty and national interest, and nobody wants to override individual liberty, however odd it may be, however curiously an individual may want to behave, unless it has to be overridden in the national interest. I understood very much what he had to say, and I should not have thought there was much difference between his approach and mine on this difficult issue. But having said that on the philosophical approach, I am bound to say that, be he right or not, there is no need for all this paraphernalia. That is what I am inviting the Committee to agree to.
Here is this enormous paraphernalia which, however detailed, notwithstanding that it is 15 clauses long, is as my noble and learned friend made clear, incomplete, and incomplete in a most material respect. If one wanted to do the job properly, one would have to go into much more detailed paraphernalia affecting the relationship between an employer and his employees, the background being that both the employer and the employees are satisfied with the arrangements which they have reached between themselves and happy, as we know, means productive; the background being that, notwithstanding that happy and productive state of affairs, it all has to be interfered with and several hoops, impossibly narrow and jagged, have to be got through in order for their wishes to be carried out, which wishes could be most easily upset as could industrial relations between that employer and his employees.
I do not want to spend time in dealing with the interesting speech of the noble Lord, Lord Conesford, except to say that I think his principle is that he is against any union which has Communist domination for the time being. He feels that any union which has acted as Communists are liable to act would therefore be a union to which nobody should be compelled to belong. All I am bound

1241
to say is that I regard the present Government as the worst Government this country has had to endure this century, but that I uphold democracy, notwithstanding the results that it has produced. I believe that the way to deal with that situation is to fight against it by persuasion, and not to have appeals to the courts and so on.
LORD CONESFORDMay I ask the noble Lord one question? Does he think that Clause 16 is a breach of the Universal Declaration of Human Rights, or does he not?
LORD DIAMOND: The noble Lord should ask that question of his noble and learned friend the Lord Chancellor, because he has asked that question four times and I do not know what answer he has had. I should be most interested to listen to him asking it time and time again, and I am bound to say to the noble Lord that he should have no doubt whatever that his message has got over. I have heard it, the Committee has heard it and I am sure that the Government are apprised of it. But the Government are not saying that, because of that, they are proposing to scrap these provisions. What I imagine the Government have in mind—though they have not disclosed it—is what the noble Earl, Lord Dudley, fairly disclosed; namely, that anybody looking at this matter with objectivity will be bound to recognise that there is a difficult conflict between individual rights and conflicting interests, which dogs us in all our steps of trying to devise sensible community relationships and rules. This is a problem of living together, which we all well understand and with which we have to cope. That is why we have to try to deal with it in this place and in the other place. So I come back to the Schedule, and say that, for those reasons, and for one other which I shall give, it is to be hoped that the Government will not insist on this paraphernalia.
The other reason I want to give is this—it is one that I have mentioned before in another context, but it is something that I hold to be very important indeed. The more union members are directed to turn their attention to courts and commissions and ballots and other outside activities to settle their union disputes, the more you disrupt unions,
1242
the more you reduce the natural loyalty which holds union members to their union; the more do you make it impossible for unions to deliver the goods which the employer wants and which the national interest requires. This is a disruptive process that is being carried on through clause after clause. Union members are being invited and directed to look outwards the whole time, instead of getting around the table, in the canteen or wherever it is, with their fellow members and arguing out their difficulties within the trade union. That is the only way to strengthen a union and to strengthen the factor which is of the greatest value within a union—the sense of loyalty which would enable men to do what this Bill wants; namely, with a bargain having been entered into it will be kept as a matter of loyalty, not as a matter of law, because union members do not enter into bargains; it is the unions which propose a sort of price list which the union members are invited to accept.
Therefore, I say that, in a very profound way, this is a continual weakening of union solidarity, which will in turn be a weakening of the union's ability to produce and deliver the goods. I am saying that for those reasons we ought not to be cluttered up with the whole of this legalistic paraphernalia, in order to determine a matter which employer and employees are able, with ease and mutual understanding, to solve themselves.
5.49 p.m.
LORD DRUMALBYN: This debate has ranged from the particular to the general, but I do not complain about that. The general points which the noble Lord, Lord Diamond, has been making are points on which there is obviously a difference between the two sides of the Committee.
LORD DIAMOND: Not only between the two sides.
LORD DRUMALBYN: This is certainly a question of emphasis. But the essential point here is very difficult for anybody to deny. Where a union and an employer together make an arrangement, it is by no means certain that that arrangement will be for the benefit of the workers. In a case of that kind, where the workers are losing some of their natural rights, it is not in any way a bad

1243
thing that they should be given the opportunity of expressing their own opinions. This is what the Schedule allows. The union and the employer can make their joint application. The Commission will sift the application after it has been referred to it by the Industrial Court, to see whether it complies with the conditions laid down in Schedule I. Once that is done it still remains possible, and it still should remain possible, even though the Commission thinks that it is necessary for the purposes indicated, for the members of that union, or the unions covered, to express their opinion as to whether or not they should consent to the loss of these rights.
Perhaps I may say this to the noble Lord, Lord Popplewell— and this is very much related to the remarks made by my noble friend Lord Conesford, who expressed doubt, if I understood him correctly, in the first place, as to whether the majority has the right to take away the rights of a minority, rights which are written into the Universal Declaration of Human Rights. These are rights which this country has undertaken, on behalf of its citizens, to observe. If I understood my noble friend correctly he was arguing that before the Court actually made the order there should be a chance for people to make representations in the Court as to the fitness of the particular union or unions to exercise these rights. This is something which I think we should look at again. It is a legitimate thing for the noble Lord to raise. I personally had not considered it before and it is only fair to the noble Lord to say that we shall look at this again.
Next is the point raised by the noble and learned Lord, Lord Gardiner, about the possibility that, in the course of conducting an appeal, the Commission on Industrial Relations might make a mistake. I am advised that it still remains our opinion that the aggrieved parties may have redress under the Common Law prerogative writ procedures—that is, to the Divisional Court. We see no reason for a special procedure to deal with this kind of problem, which is not confined to this particular statutory body; but since the noble and learned Lord has pressed—if I may say so, very reasonably—for this to be looked at again, of course we shall be ready to do
1244
so. As he said, it is the third time he has done so but the noble and learned Lord will recognise that everybody is having quite a job to do the job in hand. We hope for an interval, once the Bill has gone through the Committee Stage, in which we can look at these points at a little more leisure than is possible now. Certainly the noble and learned Lord's point deserves to be looked at in that spirit.
The noble Lord, Lord Popplewell, raised a point about the power of the C.I.R. to require the employee to provide facilities. So far as ballots are concerned, if he will look at paragraph 36 of Schedule 3, he will see that the C.I.R. has pretty extensive powers to get names and addresses of persons employed and such particulars as the position held by each of them, if they be specified and so on. We have already dealt with the question of the provision of premises so I need not go over that again. Finally, may I say once again to my noble friend, Lord Dudley, that we believe that in the agency shop we are providing a means of satisfactory organisation which will preserve the liberty of the individual in its entirety and at the same time promote good industrial relations. We do not think it will be difficult for existing closed shops to enter into such agency shop agreements, and we think that compulsion would be objectionable except in those circumstances where it is absolutely necessary.
To the noble Lord, Lord Diamond, I would simply say that he waxed very eloquent on the particular points that he raised. These, I think, are points that have been covered already, and I do not think he will expect me to answer them in detail again. If that is not so, I can deal with them at greater length, but I am sure he will agree that these are points we have covered previously, although he summarised them extremely well.
LORD DIAMOND: I am most grateful for the courteous closing remarks of the noble Lord. The least I can do to reciprocate his courtesy is to support his plea to his noble friend the Leader of the House that more consideration should be given to the need for leisure. I thought he made a very good point which was extremely far-sighted and foresighted

1245
with the noble Earl the Leader of the House sitting here during the course of that eloquent plea.
EARL JELLICOE: I do not think I can let the noble Lord get away with that. If I understood my noble friend correctly, he was suggesting that it would be highly desirable, if we could so manage to order things, that we got through our Committee stage with reasonable expedition, and this would permit your Lordships' House, departmental officials, "Uncle Tom Cobley and all", to have a reasonable period for reflection and to work on Amendments as necessary between Committee stage and Report stage.
LORD BYERS: Before we come to a decision on this may I put it to the Government in the light of what the noble Earl the Leader of the House has said, that it would expedite our proceedings if, when the Government are going to be conciliatory, they would announce it at an early stage in the debate.
LORD GARDINER: I understood the noble Lord to say that, with all the things that have to be considered, we must have a reasonable interval between the conclusion of the Committee stage and the Report stage. I think that is absolutely right. As your Lordships know, I have been advancing arguments to try to improve the Bill because I feel strongly that this really is the responsibility of your Lordships' House as a Revising Chamber, particularly where the guillotine has been in operation and some provisions have not been looked at by the other place. We must have time to do this. Most of the Members of your Lordships' House have to earn a living; we are part-time; we are unpaid; most of us have reached a certain age—
THE LORD CHANCELLOR: We have all reached a certain age.
LORD GARDINER: Some have reached a more certain age than others, and therefore we hope that, in the conduct of the House and the hours we have to sit, and the vacations we get the Government will take those things into account.
LORD DIAMOND: May I say how I welcome these two interventions? May I suggest, with respect to the noble Lord, Lord Drumalbyn, that he should not lose heart by this first refusal. After all we had to ask a question three times before we received a satisfactory answer. He should keep trying, and no doubt his noble friend the Leader of the House will take a more sympathetic view on the third appeal. That reminds me: it would be helpful to us, in preparing for the Report stage, if we knew during the course of the Committee stage what the answers to these questions were. I do not want to make too much of this, but my noble and learned friend has raised this point three times and we have now got to the stage when we are told that an answer will be considered.
The noble Lord, Lord Conesford—I will give way in one moment, because I am on exactly the same point—has made the same speech three times, within my hearing, and has asked: is Clause 16 in conflict with the Universal Declaration of Human Rights, or is it not? Although my view is that it is not—he once read it out to us, and I formed the very clear view that it was not—I should have thought it was up to some noble and learned authority on the other side of the Committee to answer that question. Therefore it would be much more helpful if we could know as we go along what the attitude of the Government is, so that we need not take up an unnecessary amount of time on Report stage by putting down the same Amendments to enable us to ask the same questions to get the necessary information. I do not know whether the noble and learned Lord would like me to give way.
THE LORD CHANCELLOR: All I was going to say was that it is a matter of great regret to me that I was not in the Chamber when the noble and learned Lord, Lord Gardiner, spoke. Had I known that he was going to speak I should have made it convenient to be here, but in the circumstances perhaps I may be excused from providing an answer to his questions at this moment. I do not know quite what they were, and I do net know whether I should have been fully armed to meet him. I apologise to him for not having been present, but

1247
I did not know that he was going to speak.
LORD DIAMOND: I am sure my noble and learned friend does not require any apology, and of course the noble and learned Lord did not know. But, if I may just return to the question, my noble and learned friend's question was the same as that which he asked on the two previous occasions, so that should make the position a little easier.
LORD DRUMALBYN: Will the noble Lord forgive me? What I said was that my legal advice remains the same as it was before. It has of course been considered. What I said was that it can be considered at greater leisure in between the two stages of the Bill, but the advice remains the same as it was before. That is the answer.
LORD DIAMOND: My noble and learned friend will be very disappointed to hear that answer, and will have his own views as to whether it is a satisfactory one, and whether he is persuaded about it. May I now return to the Amendment itself, which seeks to remove Part II? The noble Lord, Lord Drumalbyn, did not attempt to answer the fundamental points. We are totally dissatisfied with Part II, with the whole of the procedure, and I am bound to invite my noble friends to show their dissatisfaction in the ordinary way.
6.1 p.m.
On Question, Whether the said Amendment (No. 158) shall be agreed to?
Their Lordships divided: Contents, 56; Not-Contents, 135.

CONTENTS

Archibald, L.

Garnsworthy, L.

Ritchie-Calder, L.

Ardwick, L.

Greenwood of Rossendale, L.

Sainsbury, L.

Bacon, Bs.

Henderson, L.

St. Davids, V.

Bernstein, L.

Hoy, L.

Serota, Bs.

Beswick, L.

Jacques, L.

Shackleton, L.

Blyton, L.

Janner, L.

Shepherd, L.

Brockway, L.

Leatherland, L.

Shinwell, L.

Buckinghamshire, E.

Lindgren, L.

Slater, L.

Burntwood, L.

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

Snow, L.

Champion, L.

Sorensen, L.

Chorley, L.

McLeavy, L.

Stocks, Bs.

Collison, L.

Maelor, L.

Stonham, L.

Delacourt-Smith, L.

Moyle, L.

Stow Hill, L.

Diamond, L.

Nunburnholme, L.

Strabolgi, L. [Teller.]

Evans of Hungershall, L.

Pargiter, L.

Summerskill, Bs.

Faringdon, L.

Phillips, Bs.

Taylor of Mansfield, L.

Fiske, L.

Plummer, Bs.

Wells-Pestell, L.

Gaitskell, Bs.

Popplewell, L.

White, Bs.

Gardiner, L.

Raglan, L.

Winterbottom, L.

NOT-CONTENTS

Ailwyn, L.

Brougham and Vaux, L.

Emmet of Amberley, Bs.

Airedale, L.

Byers, L.

Exeter, M.

Alport, L.

Carrington, L.

Falkland, V.

Amherst of Hackney, L.

Clinton, L.

Ferrers, E.

Amulree, L.

Clwyd, L.

Ferrier, L.

Arran, E.

Colgrain, L.

Fisher, L.

Ashbourne, L.

Cork and Orrery, E.

Fortescue, E.

Balfour, E.

Cornwallis, L.

Fraser of Lonsdale, L.

Barnby, L.

Cottesloe, L.

Garner, L.

Barrington, V.

Cowley, E.

Gisborough, L.

Beauchamp, E.

Craigavon, V.

Goschen, V. [Teller.]

Beaumont of Whitley, L.

Cromartie, E.

Grenfell, L.

Belhaven and Stenton, L.

Daventry, V.

Gridley, L.

Belstead, L.

Denham, L. [Teller.]

Grimston of Westbury, L.

Berkeley, Bs.

Derwent, L.

Hacking, L.

Blackford, L.

Drumalbyn, L.

Hailes, L.

Bledisloe, V.

Dudley, E.

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

Boothby, L.

Dundee, E.

Boston, L.

Dundonald, E.

Halsbury, E.

Brecon, L.

Effingham, E.

Hankey, L.

Brooke of Cumnor, L.

Ellenborough, L.

Harlech, L.

Brooke of Ystradfellte, Bs.

Elliot of Harwood, Bs.

Harris, L.

Hastings, L.

Malmesbury, E.

Salisbury, M.

Hatherton, L.

Mancroft, L.

Sandford, L.

Henley, L.

Mansfield, E.

Sandys, L.

Hives, L.

Merrivale, L.

Sempill, Ly.

Hood, V.

Milverton, L.

Somers, L.

Howard of Glossop, L.

Monck, V.

Stamp, L.

Howe, E.

Monckton of Brenchley, V.

Strang, L.

Hurcomb, L.

Mottistone, L.

Strange, L.

Hylton-Foster, Bs.

Moyne, L.

Strange of Knokin, Bs.

Ilford, L.

Northchurch, Bs.

Strathcona and Mount Royal, L.

Inchyra, L.

Nugent of Guildford, L.

Jellicoe, E. (L. Privy Seal.)

Ogmore, L.

Suffield, L.

Kemsley, V.

Platt, L.

Swaythling, L.

Killearn, L.

Rankeillour, L.

Swinton, E.

Kilmarnock, L.

Rea, L.

Teviot, L.

Kindersley, L.

Rhyl, L.

Teynham, L.

Lansdowne, M.

Rochdale, V.

Thorneycroft, L.

Latymer, L.

Rockley, L.

Tweedsmuir, L.

Lauderdale, E.

Rothes, E.

Verulam, E.

Lothian, M.

Ruthven of Freeland, Ly.

Vivian, L.

Loudoun, C.

St. Aldwyn, E.

Wakefield of Kendal, L.

Lucas of Chilworth, L.

St. Helens, L.

Willingdon, M.

Lyell, L.

St. Just, L.

Windlesham, L.

MacAndrew, L.

St. Oswald, L.

On Question, Amendment agreed to.

6.10 p.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 159:
Page 125, line 2, leave out ("eligible to vote") and insert ("voting").
The noble Lord said: I recollect that we have discussed this matter before. Therefore I will not do more than give a little extra push at what I hope by now is a slightly open door. I know that the Government said they would look at this point, and therefore we need not trouble either to have a Division on such an important issue or to have a long discussion, although it is not for me to determine that. However, I wish to refresh the memory of the Government that we feel that this is so extraordinary and so unusual a situation that it will be impossible for any fair-minded person to put any other interpretation on this request than that the Government are anxious to make the achievement of an approved closed shop impossible, because in those circumstances, as everybody knows, it is quite impossible to get people to vote in adequate numbers, even though they have views. People are apathetic when it comes to voting. We shall have our memories as to that refreshed when we find the results of percentage polling to-day throughout the borough elections, where I suspect that something like 30 per cent. to 50 per cent. will vote.
We are all aware of this apathy and I am bound to say that it is an extra
1250
ordinary situation that you should have a Government proposal to do this when the Government themselves are sitting here with less authority than they would requite of workers under this particular scheme. Such a Government cannot produce that authority. They have been returned, and there are democratic processes. They of course have proper power and authority. Nobody disputes that. All I am saying is that our normal democratic processes are that those who vote determine the matter, not those who do not vote. We assume that if a Government gets a majority at the polling booths out of the numbers voting, presumably those who did not vote are content that this should be so. Those not wholly opposed presumably would feel broadly in the same proportion as those voting. At all events, that is a situation we completely accept. It is a situation under which the Government sit there, and yet, in order to get through this particular hoop, that Government is proposing that workpeople should vote not with a majority of those voting, but with a majority of those eligible to vote. It is a ridiculous situation—so ridiculous that you do not need words from me demonstrate it. The Government have been good enough to say that they will look into it. I invite them to say that they will look into it with even more enthusiasm than they said on the previous occasion.
LORD DRUMALBYN: I cannot accept the parallel that the noble Lord has made between General Elections and this

1251
kind of matter. General Elections, we all know, involve a very wide range of problems before the country, with several Parties also. Here you have one question and one question only, so that it is certainly not on all fours. But I confirm what I said before, that the Government will be looking at this matter, and that they hope to be able to put down an alternative arrangement, which we think will represent a compromise on this matter, at the next stage.
LORD DIAMOND: I am grateful for what the noble Lord has said. I recognise that he is not able to come the whole way. I recognise that he must have a variety of reasons for trying to find some formula which would represent a compromise. I repeat my gratitude. With your Lordships' permission I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.15 p.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 160:
Page 125, leave out Part III of Schedule 1.
The noble Lord said: I do not want to try your Lordships' patience, and therefore I will not repeat the arguments which I adduced for the removal of Part II, except to say that in Part III—which refers to a continuance of an agreement and to the approval of the original agreement—the lack of necessity for this legal paraphernalia becomes all the greater. Whereas you might, in certain circumstances, have justified quite a long procedure in order to approve an agreement, in order to continue the agreement (having gone through the hoop, and having achieved a situation which is satisfactory all round) surely it is quite unnecessary and, indeed, quite ridiculous, to go to all these lengths in order to continue the agreement. If one looks at paragraph 20 of Part III one finds here again that a majority of the workers eligible to vote is needed. As to this, I would merely say again that if it was thought that in certain circumstances a majority of those eligible to vote had to vote, then nobody would surely suggest that where you are merely dealing with a continuance of an agreement, this enormous requirement, this requirement of probably something like more than 100 per cent. of those actually voting,
1252
should be required to vote in order to satisfy this test.
The noble Lord, Lord Drumalbyn, looks at me as though I am referring to something which is utterly ridiculous. I am. I am saying that supposing 30 per cent. vote, as is likely to vote in Slocombe-over-Slush this evening in their local council elections, he is requiring under this clause for the continuance of an agreement 50 per cent. of those eligible to vote, and if 30 per cent. vote, he is requiring more than 100 per cent. of those who have voted to vote in order to satisfy this test. It is a ridiculous situation, and I therefore hope that he will say, certainly so far as Part III of the agreement is concerned— notwithstanding any arguments that might be put for retaining Part II—there is no reason to have this enormous paraphernalia, and there is certainly every reason to exclude this rule about workers voting.
LORD GARDINER: This also raises the same problem of the ballots as in Part II. I also do not want to take up time by repeating anything that has been said. May I just add two things? First. I do not share the view of the noble Lord, Lord Drumalbyn. I think he is wrong in his law in saying the prerogative rules exist to correct what may be quite small mistakes of fact. Anyhow, it is the most cumbersome procedure, as we all know. It is right to say that there is nothing in the law at the moment for resolving a dispute if there is a dispute as to whether or not the return made by the Commission is erroneous.
If I may further assist the Government, I cannot understand why you do not put into the clause a provision that if there is a dispute as to whether the return made by the Commission is erroneous, this dispute is to be decided by the Industrial Court. You have the Court there. At the moment it is a bit of a rubber stamp. It would give it something to do. The same thing would apply if there were a dispute about any form of election or ballot return. The proper body to decide is a court which sits in public. There is a further point which may deserve consideration. It is that if the Commission itself found out before the court had made its order that it had made a mistake and that it

1253
was the other party who had won the ballot, should it not itself be able to recall its report or amend it? At the moment the Schedule contains no provision for this at all.
THE LORD CHANCELLOR: May I deal with this? Clearly if the matter is of sufficient likelihood and importance it is something that I should consider. The noble and learned Lord is correct in saying that if it is worth making judiciable at all then there is a strong case for making it judiciable by the court. I doubt whether it will ever happen. The prerogative writ is available if a gross error of principle or law is made. If it is an error of fact that is made the writ is not available. I do not anticipate that this is more than a theoretical possibility. If it is, and if it is thought to be, then the noble and learned Lord has a strong case.
I do not want to deal with the noble Lord, Lord Diamond, except to say that in America, where I understand there is a comparable provision, they usually get an 80 per cent. poll. As the Americans do about 10 per cent. worse than we, we should get about 90 per cent. I would not agree with his analogy with local elections. This does not increase his prospects of success in the argument; but I do not want to detract from the promise which my noble friend has made. Clearly, if one compromise is arrived at for the agency shop and the same compromise is arrived at for the entry into the approved shop there is an a fortiori case for the same compromise in respect of exit from the approved shop—although I do not think that the noble Lord has improved his argument by repeating it in a slightly more ridiculous form. At the same time, the assurance stands.
LORD BLYTON: Part III of this Schedule to me is a very regressive one and is against the union. The union will expend money and will get its agency shop and then every employer could incite some of the workers to apply to enter the agency shop. Moreover, it encourages men and women who want to dodge their social obligations to their fellow workers. How can the unions, with all these disadvantages, ever get the trade unions organised? The Government
1254
say they want to help us. Part III contains the machinery by which, even when you establish this agency shop, it can always be put in jeopardy. Trade union leaders often have to take an unpopular stand against their members. If this happens in an agency shop and the members wish to get their own back against their leaders they simply say, "We will apply under Part III and will get 20 per cent. signatures of the work force and see if we can upset the agency shop for which the union has been fighting for so long."
It may surprise some noble Lords on this side of the Committee that under this Part, in an agency shop, part-time workers will be on an equal basis with full-time workers. Everyone in industry knows that part-time workers are generally not in the union; yet these people are to have an equal vote in these circumstances to determine whether an agency agreement is to continue after a union has spent money to establish it. Mr. Carr, the Minister, says in a letter to an M.P. on this subject:
"As drafted, the agency shop provisions draw no distinction between full-time and part-time workers."
Having gone through all the obligations of getting an agency shop established, are we to leave it open to mischief-makers to abolish something which has cost the union so much money to establish? This particular Part proves that the Toiy Government are intent to smash the unions from within rather than to help them negotiate a reasonable standard of life for their people.
LORD TAYLOR OF MANSFIELD: May I put a question to the noble Lord? As I understand Part III, if there is any grievance about the approved closed shop it can be resolved only by a ballot. The conditions for such a ballot are laid and the duties of the Commission prescribed. But nothing is said about the expense involved in taking a ballot. My experience is that the cost of all the ballots that have been taken in industry have been found by the union. Can the Minister tell us who will bear the cost of the ballot?
LORD BROWN: I am not in favour of deleting Part III of this Schedule. I believe that an approved closed shop introduced by a ballot sanctioned by

1255
Statute should not be left without any visible means, similarly backed by Statute, from changing the situation. Without making any reference to the method of voting which has been fully discussed already, I should like to make a comment on the matter of the two year period. In certain conditions I think that it is easy for anybody in a factory, if they so choose and are zealous, to collect 20 per cent. signatures for some change. I do not agree with my noble friend Lord Blyton that employers could incite union members to do this. As an ex-employer, I think it would be dangerous and difficult practice and not one that they would indulge in.
LORD BLYTON: If Lord Brown had lived in the days when we lived he would have seen more than I have been talkinng about.
LORD BROWN: I do not yield to the noble Lord on experience in this matter. I have experience of a good many industries. I know that he is experienced; but I do not think that his can outbalance mine. I should like to put to the Committee that the period of two years is a short period in which to introduce an approved closed shop by lengthy and expensive procedures and then to leave it open for the whole issue again to be raised with the possibility of a further ballot. After a period of only two years, the whole recently-introduced procedure may not yet have settled down. I think this would be a mistake. A period of two years is too short; it should be something more like five years, and I suggest that the Government should consider the two-year period.
6.30 p.m.
LORD PARGITER: This sort of thing will do more harm to industrial peace than anything else. If there is a ballot the faction which wants to end the closed shop may be big enough to win, and the closed shop would go. What sort of a set-up would there be then in the factory between the employer and the sections of his workers? —because there will be sections, let us have no doubt about that. People who were in favour of a closed shop would be emphatic in their desire to retain the closed shop and would quarrel severely with those people who did not want a closed shop. The employer would
1256
be in the middle of it all, whether he likes it or not. Under those circumstances, what is he to do?
He may say, of course, "A plague on both your houses!" But he will not get on very well, because bad relations between one side of industry and another interfere with production, and always will. Unless there is harmony among the work-people in the factory, production is affected. There could be production with harmony among the workpeople, with a quarrel between them and the employer; but there will be a mess if there are two sets of workpeople at loggerheads with each other. This method is far too sudden. At any time in a factory there may be an issue upon which there is a division of opinion, and a quarrel may result.
In other connections, the Government talk about the need for a cooling-off period. That is what we want here. If someone makes an application, or if the necessary 20 per cent. apply to get rid of a closed shop, I would say that that should be noted and if the application is renewed after, say six months, or after a period, it might be thought that the problem involved was sufficiently serious to justify a ballot. But this proposal means that on every issue that arises, when there is a quarrel between sections of the workers, someone will make an application to the court and there will be the whole procedure of a ballot. Probably in the end there will be a closed shop, but there will be all that procedure in order to deal with the matter.
It seems to me that the Government are making very heavy weather of these proposals and that it would be far better to let a situation work itself out. If they feel that they must have a counterbalance, a ballot for a closed shop, then for goodness sake let there be a little breathing space after an application for the abolition of the closed shop, to see whether the application is genuine and essential for the proper operation of the factory.
LORD POPPLEWELL: Surely my noble friend Lord Brown does not appreciate an important point in this connection. He is an employer. If any of his workers felt that they wanted an agreement to end without having a word with him or the trade union, they could ignore

1257
him and apply direct to the Court. Surely that would not be in the best interests of anyone. Paragraph 16 states:
"…any worker to whom the agreement applies may make application to the Industrial Court for a ballot as to the continuance of the agreement."
There is no reference to the employer or to the employee. Surely that omission is fantastic, in a Bill which is supposed to establish good relations. What would an employer think about a worker who applied directly to the Industrial Court?
Mention has been made of industrial spies, and we know, because of action taken against trade unions from time to time, that the source of their finances is suspect. One could easily visualise that in difficult circumstances trouble could be stirred up, and workers persuaded to obtain the 20 per cent. of signatures unknown to the employer or to the trade union concerned. This would tend to bedevil industry instead of bringing peace, and I hope that the noble and learned Lord, the Lord Chancellor, will indicate that he will look at this matter again.
LORD BERNSTEIN: May I tell the Committee of an experience in a company in which I am involved? It occurred about a year ago. We were given proper notice by the union, after the usual discussions, about a difference of opinion regarding the wording of an agreement. There was a vote: 143 workers voted to return to work, and 141 voted not to return. They returned to work, but the relationship between those two groups was pretty blue for a few weeks. Because they worked so closely together the situation cleared. A similar situation is presented here to-day in your Lordships' Chamber. Perhaps we need a "marriage guidance council" more than a clause which the Government wish to put into the Bill. Every attempt should be made to try to persuade two groups among employees to work together, and I think that it could be done.
LORD BROWN: I should like to make one comment which is addressed to my colleagues. I do not like this Bill any more than they do. I think it a pity that the pre-entry closed shop has gone, but I am glad that we have "half a loaf" in the form of an approved closed shop; and no doubt my noble friends are satisfied that we have something. I know
1258
very well, as do they, that the whole philosophy of the Party opposite is to protect the individual to the very hilt against the collective rights of groups. It seems to me sensible in these circumstances to attempt to persuade the Government to accept small Amendments to the Bill when there is some possibility that they might accept them, rather than to go full tilt at them on every clause, knowing that we are going to lose, and missing an opportunity to persuade the Government to modify these things. Surely my noble friends would rather see a five-year period before a ballot than two years. But because everyone is so obsessed with trying to attempt the impossible, and clear the ballot out of the way altogether, no one has seized on a possible point of agreement with the Government.
THE LORD CHANCELLOR: If a "marriage guidance council" is desirable, as was suggested by the noble Lord, Lord Bernstein, I suggest that one is needed between the noble Lord, Lord Brown, and the rest of his colleagues; because there have been almost constant ructions between them throughout this Committee stage. It is not for me to say which among them represents the true soul of Labour. May I say, regarding the other points which have been raised, that we have to make up our minds about rather a simple proposition. Part III of the Schedule assumes that an approved closed shop is in operation.
According to my noble friend Lord Conesford, the approved closed shop is a serious derogation from the Universal Declaration of Human Rights—though perhaps at an appropriate moment I might challenge him on that point. At any rate, a lot of people do not like it, and the reasons are very apparent and have been very well stated. But whatever else the approved closed shop is to be, it is not a sacramental marriage. The whole argument of the noble Lords, Lord Blyton. Lord Popplewell and Lord Pargiter, betrays their belief that it should be not only "till death do us part" which is the limit imposed on a sacramental marriage, but also that it should be for ever and ever. If an approved closed shop is not to be for ever and ever, there must be some mechanism for bringing it to an end, and the mechanism is provided by Part III, a mechanism which we think

1259
altogether reasonable; namely, that there should be a ballot of the workers involved as to whether it should continue. This, for some reason, is something which noble Lords opposite think deleterious to the trade union. But we simply do not agree with that. If there are more than 50 per cent., either of those voting or those eligible to vote, against the closed shop, I should have thought it was manifestly more democratic to bring the marriage discreetly to a close as having irretrievably broken down or at any rate broken down for the time being.
The noble Lord, Lord Pargiter, assumed (I think unfavourably for his own case) that two factions, the proclosed-shop-ites and the anti-closedshop-ites, among the workpeople were about equally poised. I think that once there is that situation the burden of proof that we should impose even upon a very large minority a situation which some people think is a derogation from the Universal Declaration of Human Rights, must be on those who wish to preserve the closed shop rather than on those who wish to bring it to an end. The next thing the noble Lord asked for was a breathing space. That is what the Bill provides—a two-year period. We do not think that there should be two breathing spaces, but the-noble Lord says that a two-year period is too long.
LORD PARGITERI should like to make it clear that when I was referring to factions, I did so in the context that at any time an issue can arise of a temporary nature on which factions appear. I was not talking about factions existing at all times but of the sort of thing that happens in factories, about which the noble and learned Lord knows nothing. If there was a breathing space, that would give time for tempers to cool a little, but the idea of a two-year break for this is quite ridiculous and quite unacceptable. After the period of two years, even a day after, an issue might arise and somebody might make an application to the court. I should have thought that we wanted to avoid that.
THE LORD CHANCELLOR: I gave way to the noble Lord not in order that he should repeat his entire speech, because I apprehended it the first time, but
1260
to allow him to correct any error I was making. I do not think that he would be wise to assume, because I have never worked in a factory, that the secrets of factory life are wholly concealed from me. As a common law barrister I have sometimes advised trade unions and sometimes employers, and in 44 years of work at the Bar one gradually acquires a smattering of what one is talking about.
I turn to the noble Lord, Lord Popplewell, who complained once more, in the same terms as he complained before, that one applicant could bring the application to the court. As was explained by one of my noble friends, it is precisely this grievance that the 20 per cent. provision is designed to meet. There have to be 20 per cent. behind the applicant before the application can even get off the ground, and as the Bill is now drafted there has to be a majority of those voting or eligible to vote in order to sustain it. This second point is one we discussed and agreed to consider further. But the idea that one applicant can upset the apple cart against all the organised forces of the union seems to me to be remote from reality. It has been discussed fully already and I am afraid that I do not take it extremely seriously as an argument against Part III.
That brings me to the noble Lord, Lord Brown, who thinks that five years is better than two. I agree with him on one thing. If the Labour Party had put down five years as an Amendment and said that they might be concerned to regard that as a reasonable period, it might have been a suitable subject of debate. They have not done so. I agree with the criticisms of the Labour Party in the noble Lord's speech, but I go even further with him and agree that I will report what has been said by him to my right honourable friend. I do not know in the least what he will say. Here I agree with the noble Lord, Lord Pargiter, in his criticism of my own limited knowledge and say that I am not qualified to give an opinion about this myself. But the noble Lord has made this suggestion and I think that it should be passed on.
The noble Lord, Lord Taylor of Mansfield, asked me a question about the cost of the ballot. The answer is to be found in Clause 156(1), where it says that it will be borne out of public funds. The noble Lord, Lord Blyton, indulged in his

1261
usual melancholy rodomontade against the bad motivation of the Conservative Party. Well, if he thinks that we are insincere, he thinks that we are insincere, and he is entitled to say so, but that is not my own frame of mind. We think that a free society, with free unions and free members, is on the whole better than one in which membership is compulsory, and we think that the unions will be stronger in that condition. But we are discussing this Amendment on the assumption that a closed shop is desirable in the conditions defined in Part I and is not only desirable but is in existence on the conditions defined in Part II. The question is whether there would be any possibility of a divorce as provided in Part III or whether the marriage should be indissoluble. In this case, I am all for divorce.
LORD SLATER: The noble and learned Lord did not reply to the question asked by my noble friend Lord Blyton, which is very important. I should like to know this from the noble and learned Lord: if he was in the position of a trade union leader within a factory of say 2,000 people and there was a system of working within that factory for part-time workers, of women going into the factory at 6 o'clock and working for four hours till 10, who had become members of the trade union, and he was making an application, what would he do?
THE LORD CHANCELLOR: The answer has already been given to the noble Lord when this subject was fully discussed the other night, but broadly the answer is that either a closed shop is limited to full-time workers, as it can be under the provisions in this Bill (or, at least, I am so advised), just as an agency shop can be under the provisions (so at least I am advised), in which case the part-time workers do not come into it and therefore do not have a right to vote; or the closed shop and the agency shop do cover the part-time workers and therefore they are compelled to join the union or, in the case of the agency shop, are compelled to contribute towards it, whichever happens to be in force. In this case we are limited in our discussion to the closed shop, but,mutatis mutandis, the same considerations apply. If they are in the closed shop then they are entitled to vote. If a union does not want to be cumbered with part-time workers it should not include them in the closed
1262
shop. But if it includes them in the closed shop, then it should not deprive them of the right to vote about it.
THE EARL OF DUDLEY: There is one question that I should like to put on Part III before we leave it. If the agreement of a closed shop is brought to an end, as is described in the Bill, does that mean that the whole negotiations that have gone to build up this closed shop agreement come to an end, or does it revert to an agency shop agreement? It was only as the discussion went on in this Committee that it suddenly occurred to me that by the whole thing collapsing by a vote being taken, we might have considerable industrial unrest. If there was no agency shop, there might be disquiet with the union and everything else. Yet on the wording of this clause it appears to me that workers in a closed shop might decide that, although they were quite satisfied with their union and the arrangements that existed, they just did not want to keep it as a complete closed shop.
THE EARL OF BALFOUR: There is one not think the answer to that is quite so simple as perhaps my noble friend supposes. Unions can go for a closed shop under this clause and Schedule without having an agency shop at all. They do not have to go through the agency shop hoop first and then ask for a closed shop. It follows that if they have a closed shop and the closed shop agreement closes owing to a hostile ballot, that is the end of that agreement; although of course any agreements as to terms and conditions would stand until they were altered. If there were an agency shop in existence prior to that, it would be perfectly possible the very next day for the union and employer to agree to an agency shop agreement, mutatis mutandis, in the same terms, under the terms of, I think, Clause 10.
LORD DIAMOND: We have had a very full discussion and there are only two points I want to make about this subject. The noble and learned Lord the Lord Chancellor in his last comment referred to "a hostile vote". This harks back to the logical argument that he put forward for bringing the continuance of the agreement to an end. It was not a slip of the tongue; it was his clear, logical argument, and it is reinforced by his

1263
recent reference to a hostile vote. What he was saying in the first case, and mentioning in the second case when he used the word "hostile", was a majority vote against continuance, which is not what the clause provides. This is one of the things that we are complaining about. What the clause provides, as we all know, is that if a majority of the workers (which majority we leave open for the moment) have not voted in favour of the continuance, then the agreement comes to an end. It says:
"The agreement shall thereupon cease to be an approved closed shop agreement".
So it is not simply what the noble and learned Lord said on two occasions; it is quite a different thing.
THE LORD CHANCELLOR: I do not think so. I made it very plain in my remarks that I was seeking not to revive the issue which we have now discussed three times and as to which assurances have been given by the Government. I quite agree that the noble Lord has an extremely small point as to the possible case of equality of votes. But I do not think that is quite a different thing; I think it is an extremely small point.
LORD DIAMOND: We do not think it is an extremely small point and we do not think that the pattern of the noble and learned Lord's replies to our debates are helpful to the speedy and convenient transaction of our business. I am grateful to the noble and learned Lord for his many interventions, because I am compiling a dictionary—a guide to the normal courtesies of the House of Lords by the noble and learned Lord the Lord Chancellor. I shall not misquote him. I have only to pick out of Hansard those relevant comments. They make most interesting reading and I expect I shall make a fortune.
I clearly made one deep error of judgment in saying at the start of the debate that as we had discussed a similar principle on the previous Amendment I would not seek to trouble your Lordships with an unnecessarily long speech or with a Division at the end of the debate. The views put forward by my noble friends have made it clear that that was a mistake in judgment. They
1264
have said, and I repeat, that we are going to have an enormous task in trying to educate (I have given up any hope of educating the noble and learned Lord) the Government and their supporters as to what goes on in the minds of trade unions, their feelings and their relationships towards one another. But I did say that we would not trouble the Committee with a Division, and that is that. I want to make it clear, however, that the reason why we are not troubling your Lordships with a Division is not that we do not hold strongly to our views, both on Part II and Part III. But we have expressed our views as strongly as we can in the Division on Part II, and we fear it would be taking up time unnecessarily to repeat the process on Part III.
On Question, Amendment negatived.
6.58 p.m.
LORD DIAMOND LORD DIAMOND
moved Amendment No. 162:
Page 126, line 23, leave out ("(with the necessary modifications)").
The noble Lord said: I hope that this Amendment can be dealt with quite quickly—it is purely a probing Amendment. We really do not know the effect of the words "with the necessary modifications". I should be grateful for an explanation. I beg to move.
LORD DRUMALBYN: The explanation is quite simple. The provisions of subsections (5) to (7) in Clause 7 are replaced for the purposes of approved closed shop agreements in the new clause that has been inserted after Clause 16. The provisions which require to be modified are those in subsections (2) to (4) where there are references to the agency shop agreements. These references should be understood to be references to approved closed shop agreements where appropriate.
LORD DIAMOND: I am sure that that explanation will be clearer when I see it in print. I am grateful to the noble Lord and beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD DRUMALBYN: I beg to move that the House do now resume. It may be convenient if I say that it is proposed

1265
to resume consideration of the Industrial Relations Bill at eight o'clock.
Moved, That the House do now resume. —(Lord Drumalbyn.)
On Question, Motion agreed to, and House resumed accordingly.

HIGHWAYS BILL
7.0 p.m.
LORD SANDFORD: My Lords, I beg to move that the House do now resolve itself into Committee (on Recommitment) on this Bill.
Moved, That the House do now resolve itself into Committee (on Recommitment). —(Lord Sandford.)
House in Committee accordingly.
[The LORD AIREDALE in the Chair.]
Clauses 1 to 12 agreed to.
Clause 13 [Power to divert non-navigable watercourses and to carry out other works on any watercourse]:
LORD SANDFORD LORD SANDFORD moved Amendment No.1:
Page 12, line 41, after first ("area") insert ("a lorry area")
The noble Lord said: Although there are 38 Amendments at this stage, the greater part of them are merely incorporating into the Bill matters which we agreed ill the Committee held off the Floor of the House, and I do not think we shall need to detain your Lordships for very long. There are two Amendments of substance, and Amendment No. 1, which is a paving Amendment, brings us to the first of them. It would be for the convenience of the Committee if we were to deal also with Amendment No. 3, which is another paving Amendment; Amendment No. 8, which is a substantive Amendment, and the consequential Amendments to it, which are Amendments Nos. 13 to 19, and Amendments Nos. 32,:34 and 38. All these Amendments taken together make provision for the creation of facilities for the parking of lorries and the trans-shipment of loads at strategic points on the highway system.
As my noble friend Lord Mowbray and Stourton promised in the earlier
1266
Committee discussions on April 28 (col. 52 of our Report of those proceedings), the Government have given further consideration to the proposal of the noble Lord, Lord Pargiter, that highway authorities should be given specific powers in this Bill to provide service stations alongside highways for the benefit of the motorist. As I undertook to do then, full and frank discussions have taken place between the Department, the local authority associations and the motoring interests. On the basis of these discussions, the Government have concluded that there is not sufficient case for making provision in the Bill for encroaching on private rights by taking power to acquire land compulsorily to enable highway authorities merely to secure the provision of only service facilities.
In the Government's view there is insufficient evidence that service facilities are not being provided adequately by private enterprise responding to the economic and social needs of the travelling public. The provision of public sanitary conveniences is adequately covered by existing powers and by the new powers provided for elsewhere in the Bill. I should make it clear that the Government would be very willing to review any arguments put forward by the local authority associations and the motoring associations for the provision of integrated service facilities along the lines the motorway service areas. During the course of this review, discussions will take place between the Department and all the interested bodies. Meantime, I commend to the Committee with some confidence the related provision now before it to enable highway authorities to establish sites for use specifically for heavy lorries and auxiliary vehicles. These provisions are aimed both at enhancing the quality of life in our cities through improving the environment, and at furthering the economic merest of one of our more important industries; namely, road haulage. I think the Amendments now before the Committee will achieve both these desirable objectives.
The Government are proposing that powers should be taken in this new clause, and the associated Amendments, which would help in establishing a network of strategic points with good access to the main roads of the country which road haulage operators could use in order

1267
to break bulk, transfer loads and so make it easier for vehicles of appropriate size to be used for different types of work, that is to say, the larger vehicles for the long distance journeys between towns and the smaller ones for work within the towns where it is economical to do this. Secondly, the proposed sites could serve for the overnight parking of lorries, so reducing the adverse effect on the environment which arises from the real problem of the parking of heavy lorries in urban areas. The third advantage will be that the security of these valuable vehicles and loads will be better safeguarded.
The clause gives enabling powers, both to the Government and to the local highway authorities, to set up those sites which will be known as "lorry areas". It is to be left to private enterprise to operate the trans-shipment, the warehousing, the refreshment and accommodation facilities on the sites. I should emphasise that all the proposed provisions do is to give enabling powers, including the compulsory acquisition of land for the sites. It will be up to the local authorities, the road haulage industry and other interests now to join with the Department of the Environment in working out details for giving practical effect to the proposals. This review will take into account the outcome of the consideration which the Government have already announced that they are giving to the further development of the inter-urban highway system. It will also take full account of all the safety aspects.
I hope that, with that brief explanation of what is, in essence, a simple concept, though slightly complex when put into the legislative form, we shall satisfy the Committee that what we are introducing, after the consideration which the noble Lord, Lord Pargiter, triggered off, is a sensible provision.
VISCOUNT MASSEREENE AND FERRARD: May I put a question to my noble friend in regard to Amendment No. 8? Subsection (2)(c) of the new clause refers to:
"facilities for the accommodation of persons and the provision and consumption of meals and refreshments…".
Did I understand him to say that this accommodation and provision for meals and services will be provided by the highway authority, or by private individuals
1268
to whom the highway authority will lease these concessions? Are the highway authorities to have complete, compulsory powers, through the Secretary of State, to acquire land for these purposes where they require it? I did not follow my noble friend as closely as I should have done because I was reading the Amendment while he was speaking. If I have misunderstood him I hope he will forgive me.
LORD SANDFORD: The clause gives enabling powers both to the Government and to the local highway authority to set up the sites. But it is to be left to private enterprise to operate the transhipment, the warehousing, the refreshment and the accommodation facilities. But compulsory powers are available to the highway authorities to purchase the land for this purpose.
LORD PARGITER: I would give a general welcome to this clause. It does not go quite as far as I asked the Minister to go in the previous meeting of the Committee—to have a full service area.
LORD LINDGREN: You never get all you want out of this Government.
LORD PARGITER: Well, we are grateful for small mercies. In this particular case, this provision goes a good deal towards meeting some of the problems which face highway authorities. It seems to me that, with a little addition, these areas could very easily become service areas for this particular purpose. I am glad to learn from the noble Lord that discussions will continue on the question of the provision of services areas. It is an important question, apart from the ideological factor as to whether they should be run by private or public enterprise. There was no suggestion in my original proposal that they should be run by public enterprise. The running would be by private enterprise, apart from the acquisition.
Many of the existing facilities, having regard to modern conditions, are not sited satisfactorily. In the absence of anybody's having any authority to find the right sort of place to operate from, the facilities continue to operate in unsatisfactory areas. But a person who operates them might be quite happy to move to a more suitable area if he had the power to do so, which he does not have in view of

1269
his limited means. This is a point I should like to be considered when the discussions take place.
Apart from that, it seems to me that this power for the highway authorities will be exercised in this way. Presumably the Minister will, generally speaking, exercise the powers through local authorities. I have in mind adjoining trunk roads or motor roads and matters of that kind, which would primarily be matters for the Ministry, presumably through the local authorities. It seems to me that this will go a long way towards helping those authorities who want to restrict a good deal of loading, unloading, and transfer loading which goes on at present on the highway and which could be conveniently done elsewhere provided a suitable place was made available. From that point of view, although this is rather a long clause, it will be most helpful for the future conduct and the general wellbeing of highways and for the community.
VISCOUNT COLVILLE OF CULROSS: Before my noble friend answers that point, may I raise one drafting question? If he will be so good as to look at subsection (1) of the new clause which is Amendment 8 he will see that the final sentence says:
"An area provided under this section is hereinafter referred to as a 'lorry area'."
As a matter of pure drafting, since there are two previous references, it should be "hereintofore as well as hereinafter"; and I would suggest that "in this Act" would be more apt.
7.13 p.m.
LORD LUCAS OF CHILWORTH: One must give a general welcome to this particular clause which is Amendment No. 8. However, it appears to me that the clause does two things: first, in subsection (2), paragraphs (a), (b) and (c), it provides for the lorry parks and those things directly associated—in other words, the access roads—and accommodation for lorry drivers. With all this I find no quarrel. Indeed, I understand that if the clause stopped there it would meet the purpose of the Working Party which has sat for some 2½ years considering this lorry parking problem. So, however admirable and however much needed the lorry area parking area is, we find that the clause goes a good deal
1270
further. It goes, I would suggest, in subsection (2) paragraphs (d), (e) and (f) out of a lorry area into what one might almost call a transport interchange and service terminal, because this subsection introduces a number of other functions—functions which I do not believe are of prime necessity. Indeed, if one accepts all that the noble Lord, Lord Sandford, has told us of the purport of the whole of this clause, I can see the model of the motorway service area coming down to looking after trucks and trucking services and, as I said in Committee earlier, I do not think that motorway service areas are anything of a model for the future, unless it be a lesson to be regarded with some awe.
Paragraph (d) relates to warehouse facilities. There are warehousing facilities all over the place. They may be good, bad or indifferent. Nevertheless, there is a facility here. If one introduces this factor into a lorry parking area, among other things, three things will fall by the wayside. Security goes first because many different kinds of people are involved, and many different kinds of operation are going on. You will then get exactly the opposite of what I believe the parking area, the lorry area, is for. You will get a congestion of traffic; there will be many small lorries and small vans coming into the area—perhaps even a security area—and off-loading. There is a great deal of difference between offloading part of a load directly into a warehouse, with its staging, its cranes and so on, and moving it on to a different sized lorry or into a different sized van. These are real problems. If the operation is to be efficient, one needs a great deal of handling machinery, all of which will add to the cost.
To go to paragraph (e)—service station facilities—my understanding here is that the service station facility includes fuelling and repairing, and possibly maintaining. If we look at just fuelling, first of all most long-distance hauliers already have their own arrangements, maybe their contractual arrangements, for fuelling. There is a very high fire risk. After all, if there are, say, 300 vehicles, at a total value of perhaps £30,000 each (including load), concentrated in a parking area, if it is a maximum security area for parking these vehicles there will be one or possibly two exit/entrances. To

1271
service a number of vehicles of this order, one might be considering 60,000 gallons of fuel underground, with two or three outlets. The fire risk here is enormous.
The last point on fuelling—and I should like to couple this with other service aspects—is the tremendously high cost of installation. To equip a fuelling area, one might think in terms of a cost of £35,000 to £55,000. To equip such a service area to look after emergency repair of commercial vehicles, one might look again for a similar amount of money. How any organization—and I do not mind whether it is operated by private enterprise or by a public authority— can be made to pay, I do not know. In the first place, one has to staff such an investment and already staff is terribly short in the industry. One will merely stretch that which is available.
The last paragraph refers to
"public sanitary conveniences, (including lavatories)".
Unless my interpretation of the word "public" is completely wrong, I can see anybody—that is, any member of the public, on foot, by car, motor cycle, with or without caravan or boat trailer on the back—going into the lorry area to use the public lavatory. Immediately congestion occurs; immediately there is a loss of security. Indeed, I do not see how one can possibly exclude members of the public. Even without that subsection, I cannot find, reading the clause (nor, I regret, in what the noble Lord, Lord Sandford, said in explanation), how we are to prevent the public from using these facilities. Only a short while ago, a lorry park was set up, I believe in the West Country, specifically for lorries, for looking after lorry drivers' requirements; but as the holiday season approached,particularly in that part of the country, the lorries were rather swept out and the caravanners encouraged in. I cannot see what is to stop this happening here.
I have made these criticisms; they are meant to be helpful. The real need is for lorry drivers to know that there is a place in a particular area where they may park their lorries—securely park them, if the load so demands—go to the lavatory, have a shower, have a meal and have a bed. Nowhere in this country,
1272
or I believe even in Europe, is such a facility provided. I do not believe it is necessary to provide the other three facilities which are included in the clause, unless the Minister is going to suggest to us that in ten years' time these areas may well be required to cope with such an eventuality as I have outlined, and this provision will enable us to do it. But I hope that the Minister will give me, and other noble Lords who may possibly feel the way I do, the assurance that we are essentially looking after lorry drivers, the parking and the security of their loads, the wellbeing of the driver, and leave everything else alone.
LORD TEVIOT: I should like to support the noble Lord, Lord Lucas of Chilworth. Like him, I welcome this clause. I agree with what he said: that it should confine its purposes. I believe that there should be a pilot scheme. If we go wholeheartedly into building about 50 or 60 of these lorry areas we may find a whole lot of white elephants on our hands. I think we should have a pilot scheme of, say, four, spread over the country. I agree that it should be a commercial enterprise, but with safeguards for the drivers. At the moment the drivers' accommodation is rarely satisfactory. He goes to these towns, to these boarding houses, with his allowance, which is somewhat limited, and quite often he has to share a room with a number of other people. To encourage people to go away from home, some home comforts must be provided. These accommodation places, I suggest, should be somewhere where the driver has his own cubicle, and perfectly clean, and with not too expensive food. From our experience of these service stations, the food is far too expensive. But I do not, of course, suggest going back to "Mum's and Dad's Caff" in these accommodation places.
I entirely agree with the noble Lord, Lord Lucas, on paragraphs (d) and (e). do not want to amplify, but I am sure what he says is complete sense. I would back him up in his remarks on paragraph (f), the public sanitary convenience. These places could become stopping-off places for people coming from a dance hall after a few drinks in rather a gay spirit, coming along and "mucking up" the place. If the lorry driver is resting,

1273
he should be protected. I think that when this scheme finally gets going the highway authorities should consult everybody, including representatives of the drivers.
LORD STRANGE: I want to add one or two words to what other noble Lords have said. This is rather a novelty, and it comes as a bit of a surprise to the Front Bench. It is essential that these security parking places are made throughout the country. I cannot go into the point too deeply, because I should be giving away certain secrets of security; but it is essential that lorries carrying valuable cargoes are able to go into a simple parking place where they can be left under full security control, while the drivers go and have a shower, wash up and sleep, without going outside to talk to other people. This is essential, and I trust that the noble Lord will bear this very deeply in mind.
LORD WINTERBOTTOM: May I say how grateful I am to the noble Lord for considering what my noble friend said on the Committee stage of the Bill? It was his comments then, as I understand it, that sparked off this series of Amendments and the new clause. We thank the noble Lord for taking notice of what was said at the Committee stage. May I say that I am not as pessimistic as the noble Lord, Lord Lucas of Chilworth, as some other noble Lords have been, I do not see how, if you create facilities like these, you are able to exclude the public. I think all you can do is to see that the facilities provided under subsection (2)(d) for handling and storing goods are secure. If that is done, the rest, surely, is a public facility which should be open to the public.
I welcome this new clause for one reason that has not so far been mentioned: Subsection (1)(b):
"the transfer of goods to or from any such vehicle from or to any other vehicle …"
This is a most important paragraph. One of the things that has worried me has been that the wish of people in this country to maintain the amenities of this country may at some time or other get in the way of essential technological progress. At the moment, as I understand it, the maximum size of lorry allowed is determined by the size of the international container. Nothing
1274
larger than that is being permitted. I believe that British Leyland has a major project that is stalled at the moment and not permitted because of size. One can understand that one does not want these giant lorries trundling through Oxford or Chester, but there is no reason why they should not go on the motorways of the country. If we are to have a major export trade in commercial vehicles, one would wish to have a transfer point to which these big vehicles can go and transfer their loads to smaller vehicles. As I have said, I am glad to support these Amendments.
7.29 p.m.
LORD SANDFORD: I am most grateful to noble Lords, because I think that what has been said indicates a widespread acceptance of the principle which Her Majesty's Government have been seeking to secure here. If I may say so, we are just as Crateful, though in a different way, for the detailed comments from the noble Lords, Lord Lucas of Chilworth and Lord Teviot, which are exactly what was wanted at this particular stage; and I can assure them that everything they have said, including the interesting idea of a pilot scheme, will certainly be taken fully into account.
I do not think the noble Lord, Lord Lucas, need look at this proposal as though it were a "free-for-all" and a provision for the public at large. I should have thought the details of how these parking areas will be designed and used remain to be worked out. This is simply an enabling provision on which detailed arrangements have yet to be made and full consultations yet to be held. But it would be not far short of the mark to envisage these areas rather like docks, where one ship comes in to bunker, to give leave to the crew, to deal with its cargo; and other vehicles have limited access into the dock area if they have business there—to collect cargo or to bring passengers in and out, and so on. This is the kind of regulation that will be applied here. It may be that some part of these areas will be open to the public, or it may be that the whole of them will be open to the public; but certainly those areas where there is fire risk and valuable cargo will clearly be subject to full security. But, as I have said, details will have to be worked out for this.

1275
I am grateful to my noble friend Lord Colville of Culross for his valuable proposal, which I am sure will improve the Bill. There is no doubt that the lessons already learned on the motorways will have an application here, and I am glad that the noble Lord, Lord Winterbottom, sees, as we do, that at least one of the valuable contributions which this will make, in due course, will be the full development of the latest technology in road haulage. I hope that, with that explanation, the Committee will feel able to accept this Amendment.
LORD LUCAS OF CHILWORTH: I thank the noble Lord, Lord Sandford, sincerely for his further explanation, but I am not absolutely convinced about this. He said, "Of course in some areas there may be access by the public."
LORD SANDFORD: Some parts of some areas.
LORD LUCAS OF CHILWORTH: I thank the noble Lord—some part or parts of the areas. This seems to be the thin end of the wedge, and while I thank him for the assurances he has given I must tell him that I should like to ponder further on this matter and may well wish to bring up the point again at a later stage.
Clause 13, as amended, agreed to.
Clauses 14 to 17 agreed to.
7.33 p.m.
LORD SANDFORD LORD SANDFORD moved Amendment No. 2:
After Clause 17, insert the following new clause.
Agreements for the provision of walkways
—(1) A local highway authority may enter into an agreement with any person having an interest in any land on which a building is, or is proposed to be, situated, being a person who by virtue of that interest has the necessary power in that behalf, —

(a) for the provision of ways over, through or under parts of the building, or the building when constructed, as the case may be, or parts of any structure attached, or to be attached, to the building; and

(b) for the dedication by that person of those ways as footpaths subject to such limitations and conditions, if any, affecting the public right of way thereover as may
1276
be specified in the agreement and to any rights reserved by the agreement to that person and any person deriving title to the land under him.

A footpath created in pursuance of an agreement under this section is hereinafter referred to as a "walkway".
(2) An agreement under this section may make provision for—

(a) the maintenance, cleansing and drainage of any walkway to which the agreement relates;

(b) the lighting of such walkway and of that part of the building or structure which will be over or above it;

(c) the provision and maintenance of support for such walkway;

(d) the making of payments by the local highway authority to any person having an interest in the land or building affected by the agreement.

(3) Subject to subsection (4) below, any covenant contained in an agreement under this section and entered into by a person having an interest in any land affected by the agreement shall be binding upon persons deriving title to the land under the covenantor to the same extent as it is binding upon the covenantor notwithstanding that it would not have been binding upon those persons apart from the provisions of this subsection and shall be enforceable by the local highway authority against those persons as if the authority had at all material times been the absolute owners in possession of adjacent land and as if the agreement had been expressed to be made for the benefit of such land.
(4) A covenant contained in an agreement under this section shall not be enforceable by virtue of subsection (3) above against a purchaser for money or moneys worth of a legal estate in any land affected by the agreement unless before the completion of the purchase the agreement has been registered in the prescribed manner in the register of local land charges of the local authority in whose area the land is situated.
The power conferred by section 15(6) of the Land Charges Act 1925 to make rules for giving effect to the provisions of that subsection shall be exercisable for giving effect to this subsection; and in this subsection "prescribed" means prescribed by rules made in the exercise of that power and "purchaser" has the same meaning as in that Act.
(5) If any person for the time being liable to perform any such covenant, being a positive covenant, fails to perform it, then, without prejudice to any other right or remedy they may have, the local highway authority may, after giving the person in default not less than twenty-one days' notice of their intention to do so, enter on the land or building in question and execute such works as may be necessary to secure performance of the covenant and may recover the expenses reasonably incurred by them in so doing from that person.
(6) A local highway authority by whom an agreement under this section has been made may make byelaws regulating—

(a) the conduct of persons using any walkway to which the agreement relates;

(b) the placing or retention of anything (including any structure or projection) in, on or over any such walkway.

(7) The authority having power by virtue of section 250 of the Local Government Act 1933 to confirm byelaws made under subsection (6) above shall have power to confirm them with or without modifications.
(8) Subject to subsection (9) below, the Secretary of State may make regulations—

(a) for preventing any enactment or instrument relating to highways or to things done on or in connection with highways from applying to walkways which have been, or are to be, created in pursuance of agreements under this section or to things done on or in connection with such walkways;

(b) for amending, modifying or adapting any such enactment or instrument in its application to such walkways;

(c) without prejudice to the generality of paragraphs (a) and (b) above, for excluding, restricting or regulating the rights of statutory undertakers, sewerage authorities and the Post Office to place and maintain apparatus in, under, over, along or across such walkways;

(d) without prejudice as aforesaid, for defining the circumstances and manner in which such walkways may be closed periodically or temporarily or stopped up and for prescribing the procedure to be followed before such a walkway is stopped up.

(9) Regulations under this section shall not exclude the rights of statutory undertakers, sewerage authorities or the Post Office to place and maintain apparatus in, under, along or across any part of a walkway, being a part which is not supported by any structure.
(10) Without prejudice to subsection (9) above, regulations under this section may make different provisions for different classes of walkways and may include such incidental, supplemental and consequential provisions as appear to the Secretary of State to be expedient for the purposes of the regulations.
(11) Nothing in this section shall be taken as affecting any other enactment by virtue of which highways may be created.")
The noble Lord said: I beg to move Amendment No. 2. And we come now to the second and the only other substantive Amendment with which we have to deal this evening. Noble Lords who were members of the earlier Committee on the Floor of the House may recall that I gave notice of a tentative proposal to make provision in this Bill for the provision of walkways by agreement. That proposal has now been embodied in this new clause and I trust that this will
1278
prove to be a measure Which will meet with your Lordships' approval. Walkways are pedestrian-ways giving access to and through private commercial developments and, as such, they are a welcome contribution to urban amenities and particularly to the separation of pedestrians from motor traffic.
Four local authorities—the Greater London Council, Liverpool, Newcastleupon-Tyne and the City of London—have already taken local Act powers so that they can provide walkways; and I am sure that noble Lords are familiar with those that are not far from here on the South Bank. In February 1968 an advisory group comprising representatives of Government Departments and local authorities was set up to look into legal and planning questions raised by this new form of development. They recommended comprehensive legislation to include powers to allow local authorities, by agreement or compulsorily, to create and acquire rights over land, to undertake work and enter into agreements with developers to provide walkways, and to impose conditions in planning permissions to secure the provision of walkways. Copies of the report are available in the Library.
The Highways Bill now before the Committee provides the first opportunity for legislative provision for walkways. Obviously the Highways Bill cannot attempt to achieve all that the advisory group recommended, for that would be outside the scope of the Bill. But it seems worthwhile to have a limited provision which will enable walkways to be created by agreement—and I stress the words "by agreement" because the earlier proposals emanating from the advisory group included compulsory powers—and in the same clause to provide for the administration of such walkways. The clause permits local authorities to enter into agreements with persons having interests in existing and proposed buildings, for the provision in these buildings of pedestrian ways and for their dedication as footpaths. Such footpaths would be known as walkways. Apart from providing for the necessary consequential matters, the clause goes no further than that. It is simply giving the power to do things by agreement freely entered into by both sides. The agreement can be subject to limitations and conditions and

1279
can make provision for such matters as maintenance and lighting. The clause provides for covenants in the agreement to be enforceable by the local authority against successors in title and gives the authority support powers to do work required by the Government and to recover expenses. This last feature does not break new ground.
There are precedents, for though ordinarily only restrictive covenants are enforceable against successors in title a considerable number of local authorities—23 or so—have obtained powers in their own private legislation to enforce against successors in title positive covenants contained in agreements. The clause allows the local authority to make bylaws regulating the use of the walkway and allows the Secretary of State to make regulations to amend, modify or adapt highway law or to prevent its applying to walkways. Such powers are obviously needed to ensure that highway law is suitably applied to walkways within buildings. Under these regulations the Secretary of State is empowered to exclude, restrict or regulate the rights of the statutory undertakers, sewerage authorities and the Post Office, though he cannot exclude the exercise of these rights in walkways on solid ground. I know full well that statutory undertakers and property owners are concerned about the exercise of their rights in walkways, and I can assure you that they will both be consulted when the regulations are being prepared. I beg to move.
LORD PARGITER: I should like to give a general welcome to this clause. We are breaking new ground to a certain extent and it occurs to me that there will be places which are existing walkways which presumably, as soon as this Bill becomes law, will become highways. I wonder whether or not the process of reaching agreement will have to be gone through with regard to existing walkways before they become highways, or whether they will become highways and then not be subject to any other agreement which exists regarding any other highway. It is important that we should have this point clear, because it could create a great deal of difficulty and confusion. I am a little disappointed with the clause, particularly subsection (9) which says:
1280
"Regulations under this section shall not exclude the rights of statutory undertakers, sewerage authorities or the Post Office to place and maintain apparatus in, under, along or across any part of a walkway, being a part which is not supported by any structure."
In other words, any walkway which is on the ground.
While the Minister will take powers under regulations to see that other people observe any necessary restrictions, no restrictions at all are to be placed on the statutory undertakers. If I were the owner of a property and the highway authority said they would like to have a walkway on my property, or adjoining it, and said, "Of course, the Minister will make regulations governing the use of this and we shall have by-laws, but none of these shall have any power at all with regard to the statutory undertakers", I should regard it as unfair. We know that statutory undertakers sometimes exercise their powers very arbitrarily indeed, and unless the Minister implies that he will take some powers by regulation to limit them it will be an extremely hard job to get any agreements at all, however necessary they may be. Once the owner is told by the highway authority that they can give him only limited protection because they can give him only the protection which the Minister will prescribe, and they specifically exclude the statutory undertakers, the owner will not cooperate. While, obviously, the statutory undertakers must have rights—that is recognized—they ought to be subject to some sort of regulations, even if they are not precisely the same as those which will apply to other persons and other bodies.
I hope the Minister will be able to look at this matter again, with a view at least to seeing that statutory undertakings are brought under some sort of control—not arbitrary and not necessarily out of keeping with what they ought properly to have. At least they ought not to be empowered at any time to chop up a walkway (as they do at the present time) and they usually do it one after the other and not together, as they are supposed to do under the existing regulations. If something could be done about this it would be helpful because it would also show some sort of pattern for the future as to what ought to be done in a general way. I hope the Minister will be able to meet these points.
LORD NUGENT OF GUILDFORD: I, too, congratulate my noble friend on breaking new ground—or taking a little step in the air, I suppose it is here. But I am going to follow the wise words of the noble Lord, Lord Pargiter, by also expressing a note of anxiety that has been voiced by the National Association of Property Owners, who fear that the rights of the private property owner may be prejudiced by this new clause. I have noted, of course, that my noble friend has stressed that these acquisitions would be made by agreement only. Nevertheless, the property owners, who naturally have had some experience of developing property and of negotiations with public authorities, have also had experience that pressures can be put upon them and that, although there may be voluntary agreement, the pressures sometimes wring out of them concessions which they would have been reluctant to concede. They feel that they need a safeguard here, and it is common knowledge to noble Lords, I am sure, that planning consent is sometimes difficult to get unless the dedication of a piece of property in a major development is made for a highway. These things do happen, and I am sure my noble friend realises that a safeguard is needed here to make sure that these agreements are completely voluntary and that no pressures of such a kind could be put on a property owner in these circumstances.
I am sure my noble friend is conscious that he and I, and indeed probably noble Lords in all parts of the Committee, want to see these urban developments done with private capital. They are expensive, they are often difficult and chancy, and it is far better that they should be done, wherever possible, by private capital and by a private developer. Therefore it is particularly important to see that in taking this step—which in my judgment is a very wise step to take—we shall see more walkways constructed in the future. I am sure this is the right thing to do in urban developments but we must be certain that the urban developer is not discouraged by this imaginative step that is being taken by my noble friend.
There are two points that I should like to put to my noble friend. One is whether he will open consultations immediately with the private property owners. They have not been included in the consultations
1282
that have taken place to date, and they would like to be taken into consultation right away. Secondly, I urge that they should be consulted later, when regulations are drawn up, particularly to cover such points as the noble Lord, Lord Pargiter, mentioned, to get the right balance between the interests of the private property owner and the statutory undertakers, because as the clause is drafted it looks as though the statutory undertaker might come out rather better than the private property owners. If my noble friend will be good enough to give those assurances I feel sure that private property owners generally will welcome this as being an imaginative measure.
7.43 p.m.
LORD SANDFORD: I am grateful once again for the welcome given by noble Lords to this concept as well: in my view, it will undoubtedly do a great deal to improve the urban environment. I was asked by the noble Lord, Lord Pargiter, about the status of existing walkways. In fact it varies, because the Acts under which they have so far been obtained also vary; but I confirm that their status will rest on the Acts under which they were obtained and will not be affected by this particular clause.
The noble Lord then asked me about the effect of subsections (8) and (9) on the statutory undertakers, drawing my attention particularly to the word "exclude" in subsection (9). But the use of the word "exclude" there does not override the two words "restricting" and "regulating" in subsection (8)(c), which certainly applies. The activities of the statutory undertakers will be subject to restriction and to regulation, but not to complete exclusion. The precise effect of those terms, taken together, is something which we shall need to go into more fully in 'the consultations which I confirm will certainly be carried out before the regulations are made.
That brings me to the remarks made by my noble friend Lord Nugent of Guildford. It is perfectly legitimate and understandable, and indeed desirable, that there should be full safeguards for the property owners. In spite of what I have said about the whole clause being based on agreements freely entered into, I can give him an assurance that there will be now the fullest consultations before the next stage, in order to see whether any

1283
further safeguards can be built in that will meet the wishes of the property owners. I can give him an assurance that there will be consultations on that point and on any other points they care to raise with my Department before the next stage. Furthermore, there will be consultations both with the property owners and with the statutory undertakers, and with others, before the regulations envisaged in subsection (8) are drawn up.
LORD PARGITER: I thank the noble Lord for what he has said. There is just one point that I wish to make. Existing walkways will be covered by existing Acts of Parliament, and in the interests of uniformity it may well be desirable, in the interests of all parties concerned, to transfer them to this statute in order to get a uniform standard. I should like to know whether or not that can be done, and, if it cannot be done at the moment, whether the noble Lord will consider the desirability of arranging it, where it is done voluntarily, and they could be so transferred.
LORD SANDFORD: I can certainly give an undertaking that it will be looked into, but I should not like to give any undertaking that it could be done until it has been looked into.
VISCOUNT COLVILLE OF CULROSS: My Lords, I think my noble friend will probably discover that the form of this new clause is in common form with most of the local enactments anyway.
Clauses 18 to 20 agreed to.
Clause 21 [Extension of powers relating to drainage of highways]:
7.52 p.m.
LORD SANDFORD: My Lords, Amendment No. 3 is another paving Amendment to Amendment No. 8. I beg to move.
Moved—
Page 21, line 24, at end insert ("lory area"). —(Lord Sandford.)
On Question, Amendment agreed
LORD SANDFORD LORD SANDFORD moved Amendment No. 4:
Page 21, line 43, at end insert:
("(11) The provisions of the said section 103 and of subsection (8) above are without prejudice to the provisions of any enactment the purpose of which is to protect water against pollution.").
The noble Lord said: My Lords, this Amendment fulfils the promise given in Committee to my noble friend Lord Nugent of Guildford that nothing in this clause, which authorises the discharge of water from highways, should override legislation dealing with pollution.
Clause 21, as amended, agreed to.
Clauses 22 to 24 agreed to.
Clause 25 [Provision of picnic sites and public conveniences for users of trunk roads]:
LORD SANDFORD LORD SANDFORD moved Amendment No. 5:
Page 24, line 19, at end insert ("the Greater London Council").
The noble Lord said: This and the next Amendment, No. 6, of which I gave notice to the Committee, make fully comprehensive the catalogue of local authorities who may be involved in providing picnic sites and public conveniences on trunk roads. Amendments to Schedules 1 and 13 likewise bring the G.L.C. into Schedules 1 and 13. I mention them now, but if any noble Lord wants any further explanation I can give it to him when those Amendments are reached.
VISCOUNT COLVILLE OF CULROSS: My Lords, I should like to take this opportunity of saying, since my noble friend has mentioned Amendment No. 33, which is a specific matter which I know was worrying the Greater London Council, how grateful they are to have this small point about watercourses in their area cleared up.
Clause 25, as amended, agreed to.
Clause 26 [Provision for exercise by local authority of functions of Secretary of State with respect to management or provision of picnic sites, etc.]:
LORD SANDFORD: I beg to move Amendment No. 6.
Amendment moved—
Page 26, line 10, after ("district") insert ("the Greater London Council").—(Lord Sandford.)
Clause 26, as amended, agreed to.
Clause 27 agreed to.
LORD SANDFORD LORD SANDFORD moved Amendment No. 7:
After Clause 27, insert the following new clause:
Power to make advances in connection with provision of public conveniences
".The power of the Secretary of State under section 235 of the principal Act to make, with Treasury approval, advances to highway authorities shall include power to make such advances in respect of expenses incurred by such an authority in connection with the provision of public sanitary conveniences on or under land forming part of, or adjoining, or in the vicinity of, a highway or proposed highway."
The noble Lord said: My Lords, in the earlier Committee the noble Lord, Lord Pargiter, moved a manuscript Amendment to the effect that grants should be paid to local highway authorities who provided public conveniences on existing local highways, and I asked for time for Her Majesty's Government to consider this point. We have concluded that it would be right for the Secretary of State to have power to pay grant in certain limited cases on principal roads where such provision was clearly required to meet other than local demands. We have thought it right, while doing this, to widen the scope of the Amendment to include new principal roads as well as existing principal roads, and the rate of grant is 75 per cent.
LORD PARGITER: I am particularly grateful to the noble Lord for having accepted the spirit, at any rate, and almost the words, of an Amendment which I moved in the Committee previously. There is only one small point I would raise. I am sure that this is the intention. Presumably these rank pari passu with any other type of public convenience
1286
which is erected with the authority of the Department or approval of the Treasury, and presumably the grant will be at the same rate. That is the only point I have in mind.
LORD SANDFORD: Amendment No. 8 is the substantive part of the matter which we discussed on Amendment No. 1.
Amendment moved—
After Clause 27, insert the following new clause:
Provision of areas for parking heavy goods vehicles, etc.
".—(1) A highway authority shall have power to provide on land adjoining, or in the vicinity of, a highway or proposed highway for which they are, or, as the case may be, will be. the highway authority an area which may be used for all or any of the following purposes, that is to say—

(a) the parking of heavy goods vehicles;

(b) the transfer of goods to or from any such vehicle from or to any other vehicle; and

(c) the temporary storage of goods which have been or are to be carried by heavy good, vehicles.

An area provided under this section is hereinafter referred to as a "lorry area".
(2) A highway authority by whom a lorry area is provided shall have power to erect buildings and execute works on the area for the purpose of providing all or any of the following, that is to say—

(a) parking places for heavy goods vehicles;

(b) a means of access to and from the area from or to a highway;

(c) facilities for the accommodation of persons and the provision and consumption of meals and refreshments;

(d) facilities for handling and storing goods;

(e) service station facilities; and

(f) public sanitary conveniences (including lavatories);

and power to instal in buildings erected by them under this subsection such equipment, furniture and apparatus as may be necessary for the purpose of providing such facilities or conveniences.
(3) A highway authority shall have power to make arrangements with some other person, not being a council, for anything which that authority have power to do under subsection (2) above to be done by that other person and power to lease the lorry area or any part thereof to that other person, but shall not themselves have power to operate any such facilities as are mentioned in paragraphs (c), (d) and (e) of that subsection.
(4) Where a lorry area is provided by the Secretary of State under this section he may

1287
enter into agreements with a local authority for the exercise by that authority of all or any of his powers under subsection (2) above so, however, that section 10(2) of the principal Act (discharge of functions delegated by the Secretary of State to a council) shall apply to the exercise of the powers of a local authority under any such agreement and to the conditions to be included in any such agreement as it applies to the discharge of functions delegated under that section to a council and to the conditions to be attached to any such delegation.
(5) Section 31 of the Road Traffic Regulation Act 1967 (provision as to use of certain parking places) shall apply in relation to a lorry area provided under this section as it applies in relation to a parking place provided under section 28 of that Act as if for references to a local authority there were substituted references to a highway authority, and sections 84A, 84B and 84C of that Act (provisions relating to certain orders, including orders under the said section 31) shall have effect as if references therein to the said section 31 included references to that section as applied by this subsection.
(6) The power of the Secretary of State tinder section 235 of the principal Act to make, with Treasury approval, advances to a highway authority shall include power to make such advances in respect of expenses incurred by such an authority in connection with the provision of a lorry area or in the exercise of any other power under this section.
(7) A local authority may contribute towards any expenses incurred by the Secretary of State under this section.
(8) Nothing in section 88 of the Public Health Act 1936 (restriction on erection of public sanitary conveniences in, or accessible from, streets) shall affect the powers of a highway authority under this section.
(9) In this section "heavy goods vehicle" has the meaning assigned to it by section 199(1) of the Road Traffic Act 1960 and "local authority" has the same meaning as in section 26 of this Act.") —(Lord Sandford.)
LORD LUCAS OF CHILWORTH: My Lords, it is at this point that I should express my reservations on what the noble Lord, Lord Sandford, said on this Amendment, No. 8 and various subsections. Having had the opportunity of reflecting on what he said, I must emphasise that my unhappiness is not diminished by what he said, and it may well be that I shall wish to discuss this again at the later stage.
LORD SANDFORD: I hope also that we may have discussions together before the next stage.
Clause 28 [Control of builders' skips]:
LORD SANDFORD LORD SANDFORD moved Amendment No. 9:
1288
Page 26, line 38, leave out ("any skip owned by him") and insert ("or cause to be deposited, a skip").
The noble Lord said: Amendment No. 9 and the succeeding Amendment, No. 10, fulfil an undertaking given in Committee, at column 63, in response to considerations advanced by my noble friend Lord Brooke of Cumnor and my noble friend Lord Chesham. They introduce greater flexibility into the procedure under the clause by allowing highway authorities to permit anyone, not only the owners of building skips, to deposit them on the highway or to cause them to be deposited there, and I hope this and the other explanations I gave at the time meet the considerations that my noble friend Lord Brooke introduced into the Committee.
LORD BROOKE OF CUMNOR: My Lords, this completely meets the point I raised in my Amendment in the previous Committee, and I am most grateful to the noble Lord. I think the wording of this Amendment is almost identical with the Amendment which I moved and then withdrew at his request, though I never would have spotted the necessity for the consequential Amendment, No. 11.
LORD SANDFORD: I beg to move Amendment No. 10.
Amendment moved—
Page 28, line 41, leave out from ("agreement") to end of line 42.—(Lord Sandford.)
Clause 28, as amended, agreed to.
Clauses 29 to 32 agreed to.
Clause 33 [Building operations affecting public safety]:
LORD SANDFORD: My Lords, Amendment No. 11 is a minor technical Amendment to correct a drafting slip. The effect of the Amendment is to make it clear that the word "building" means any building and not a particular building. I beg to move.
Amendment moved—
Page 33, line 4, leave out second ("the") and insert ("a").—(Lord Sandford.)
Clause 33, as amended, agreed to.
Clauses 34 to 38 agreed to.
Clause 39 [Appeal against certain decisions of local highway authority under s. 38]:
LORD SANDFORD: My Lords, Amendment No. 12 fulfils an undertaking given in the Committee to include the words given in the Amendment, which I think speak for themselves.
Amendment moved—
Page 44, line 11, at end insert ("and shall consider any representations made by the local highway authority").—(Lord Sandford.)
Clause 39, as amended, agreed to.
Clause 40 agreed to
Clause 41 [Acquisition for highway construction, improvement, etc.]:
LORD SANDFORD: My Lords, Amendments Nos. 13 to 19 are consequential on Amendment No. 8 to which the Committee have already agreed. I beg to move No. 13.
Amendment moved—
Page 47, line 14, at end insert—
("(4A) A highway authority may acquire land which is required for the purpose of providing a lorry area in the exercise of their powers under section (Provision of areas for parking heavy goods vehicles, etc.) of this Act.") —(Lard Sandford.)
Clause 41, as amended, agreed to.
Clause 42 agreed to.
Clause 43 [Acquisition in advance of requirements]:
8.0 p.m.
LORD SANDFORD: I beg to move Amendment No. 14.
Amendment moved—
Page 48, line 29, leave out ("or trunk road picnic area") and insert ("trunk road picnic area or lorry area").—(Lord Sandford.)
Clause 43, as amended, agreed to.
Clauses 44 to 47 agreed to.
Clause 48 [Distance limits from highway applicable to compulsory acquisition]:
LORD SANDFORD: I beg to move Amendment No. 15.
Amendment moved—
Page 54, line 3, at end insert—
("( e) in the exercise of the powers of section 41(4A) of this Act acquire com-
1290
pulsorily land lying more than 880 yards from the middle of the highway or proposed highway on land adjoining, or in the vicinity of, which a lorry area is to be provided").—(Lord Sandford.)
LORD SANDFORD: I beg to move Amendment No. 16.
Amendment moved—
Page 54, line 22, leave out second ("or")—
Lord Sandford.)
LORD SANDFORD: I beg to move Amendment No. 17.
Amendment moved—
Page 54, line 23, after ("area") insert ("or lorry area").—(Lord Sandford.)
Clause 48, as amended, agreed to.
Clause 49 [Clearance of title to land acquired for statutory purpose.]:
LORD SANDFORD: I suggest that we take Amendments Nos. 18 and 19 together. I beg to move.
Amendments moved—
Page 55, line 18, after ("Act") insert ("and to land acquired by a highway authority in exercise of the power conferred by section 41 (4A) thereof").
Page 55, line 22, at end insert ("or, as the case may be, to a highway authority and a lorry area").—(Lord Sandford.)
Clause 49, as amended, agreed to.
Clauses 50 to 52 agreed to.
Clause 53 [Special parliamentary procedure in relation to compulsory purchase of open spaces.]:
LORD SANDFORD: I beg to move Amendment No. 20. I gave notice of this in Committee. It is little more than drafting. Where the sense now is "widening or draining" it becomes, in effect, "widening and/or draining". This is what is desired. I beg to move.
Amendment moved—
Page 58, line 7, at end insert ("and after the word "highway" there shall be inserted the words "or partly for the widening and partly for the drainage of such a highway"."). Page 55, line 18,(Lord Sandford.)
Clause 53, as amended, agreed to.
Clauses 54 to 56 agreed to.
Clause 57 [Contributions towards expenses incurred by a highway authority in executing certain works by persons deriving special benefit therefrom.]:
LORD SANDFORD LORD SANDFORD moved Amendment No. 21:
Page 61, line 5, after ("section") insert ("may provide for the making to the highway authority by the other party to the agreement of payments in respect of the maintenance of the works to which the agreement relates and").
The noble Lord said: This Amendment, of which notice was also given on the earlier Committee, ensures that agreements under Clause 57, which provide for contributions towards highway works by persons deriving special benefit therefrom, may also provide not only for contributions towards capital costs but towards the maintenance costs of the works involved. I beg to move.
Clause 57, as amended, agreed to.
Clauses 58 to 61 agreed to.
Clause 62 [Supplementary provisions as to powers of entry for the purpose of survey.]:
LORD SANDFORD LORD SANDFORD moved Amendments Nos. 22 to 27.
Page 63, line 35, leave out ("and").
Page 63, line 36, at end insert ("and any river authority").
Page 64, line 5, leave out ("or") and insert ("any").
Page 64, line 6, after ("undertakers") insert ("or any river authority").
Page 64, line 9, after ("undertaking") insert ("or, in the case of a sewerage authority or a river authority, would obstruct or impede the performance of their functions under any enactment").
Page 64, line 24, at end insert—
("( ) in relation to a river authority, the Secretary of State and the Minister of Agriculture, Fisheries and Food acting jointly;").
The noble Lord said: Amendments Nos. 22 to 27 fulfil another undertaking given in the earlier Committee. They would add references to river authorities in subsections 5 and 7 of Clause 62 so as to extend to such authorities the protection of these provisions in respect of
1292
survey works by highway authorities. I beg to move all six Amendments.
Clause 62, as amended, agreed to.
Clause 63 [Powers of entry for purpose of maintaining, etc., certain structures and work]:
LORD SANDFORD LORD SANDFORD moved Amendments Nos. 28, 29 and 30:
Page 64, line 40, at end insert—
("( ) In relation to a bridge to which section 118 of the Transport Act 1968 (duty of highway authorities, etc. as respects bridges over railways or inland waterways) applies, being a bridge belonging to a highway authority, subsections (1) and (2) above shall have effect subject to the provisions of that section.").
Page 65, line 3, leave out ("affects") and insert ("shall affect").
Page 65, line 5, at end insert—
("( ) Nothing in this section shall affect any agreement for the time being in force between a highway authority having power or a right to maintain, alter or remove a structure or work and any person having an interest in the land on, over or under which it is situated, being an agreement relating to the maintenance of or other dealing with the structure or work.")
The noble Lord said: I think it will be for the convenience of the Committee if these three Amendments, of which I gave notice on Committee, are taken together, although they deal with separate points. Section 118 of the Transport Act 1968 deals with highway bridges over railways and canals. The first Amendment makes it clear that Clause 63 of this Bill does not override Section 118 of that Act. Amendment No. 29 is a drafting Amendment. Amendment No. 30 makes it clear that Clause 63, which provides the framework for future agreements about such things as the upkeep of bridges, does not upset existing agreements. I beg to move.
Clause 63, as amended, agreed to.
Clauses 64 to 67 agreed to.
Clause 68 [Amendment of penalties for certain offences]:
LORD SANDFORD LORD SANDFORD moved Amendment No. 31:
Page 68, line 2, after ("words"") insert ("liable").
The noble Lord said: This is a drafting correction. As subsection (1) of the clause is at present drafted, Section 141 of the 1959 Act has been rendered meaningless since, by drafting convention, the word "liable" is deleted from Section 141 and the subsection does not provide for its replacement. The Amendment will put this right.
Clause 68, as amended, agreed to.
Clauses 69 to 80 agreed to.
Clause 81 [Interpretation]:
LORD SANDFORD: Amendment No. 32 is consequential. I beg to move.
Amendment moved—
Page 75, line 17, at end insert—
(""lorry area" means an area provided under section (Provision of areas for parking heavy goods vehicles, etc.) of this Act;").—(Lord sandford.)
Clause 81, as amended, agreed to.
Clauses 82 to 84 agreed to.
Schedule 1 [Amendments of Principal Act for which sections 1, 3, 12, and 14 of this Act provide]:
LORD SANDFORD: I have already explained Amendment No. 33. I beg to move.
Amendment moved—
Page 79, line 25, at end insert ("and, if the waters or watercourse affected are or is within the London excluded area as defined in paragraph 15(3) of Schedule 14 to the London Government Act 1963, the Greater London Council").—(Lord Sandford.)
Schedule 1, as amended, agreed to.
Schedules 2 and 3 agreed to.
Schedule 4 [Purposes for which additional land may be taken in advance of requirements]:
LORD SANDFORD: I beg to move Amendment No. 34. This is consequential.
Amendment moved—
Page 83, line 39, at end insert—

("Section 41 (4A)

The provision of a lorry area.

The extension of the lorry area.")

(Lord Sandford).
Schedule 4, as amended, agreed to.
Schedule 5 agreed to.
Schedule 6 [Compulsory acquisition of rights: modification of 1946 and 1965 Acts]:
LORD SANDFORD LORD SANDFORD moved Amendment No. 35:
Page 85, line 4, at end insert ("or in connection partly with the widening and partly with the drainage of such a highway, and that the giving of other land in exchange for the right is unnecessary, whether in the interests of the persons, if any, entitled to rights of common or other rights or in the interests of the public").
The noble Lord said: Amendment No. 35, of which notice was given in the Committee at (column 83), corrects a drafting omission in the Bill as printed, and also covers the situation in which rights over certain categories of land are required partly for draining and partly for the widening of an existing highway. The Bill, as drafted, provides for one or the other but not for both in the case of the same piece of land, and this Amendment puts that right. I beg to move
Schedule 6, as amended, agreed to.
Schedules 7 to 12 agreed to.
Schedule 13 [Part I of Schedule 1 to Principal Act as amended]:
LORD SANDFORD: Amendment No. 36 is consequential. I beg to move.
Amendment moved.
Page 96, line 32, at end insert ("and if the waters or watercourse affected are or is within the London excluded area as defined in paragraph 15(3) of Schedule 14 to the London Government Act 1963, the Greater London Council")—(Lord Sandford.)
Schdule 13, as amended, agreed to.
In the Title:
LORD SANDFORD: Amendment No. 37 improves and corrects the grammar of the. I beg to move
Line 6, at end insert ("the")—(
Lord Sandford.)
LORD SANDFORD: Your Lordships will be relieved to see that this is the last consequential Amendment concerning the creation of lorry areas, and the last Government Amendment. May I thank the Committee for their indulgence? I beg to move Amendment No. 38.
Amendment moved—
Line 7, after ("highways") insert ("provisions authorising the provision of facilities for purposes connected with the transport of goods by road")—(Lord Sandford.)
Title, as amended, agreed to.
House resumed: Bill reported, with the Amendments.

WOOL TEXTILE INDUSTRY (EXPORT PROMOTION LEVY) (AMENDMENT) ORDER 1971
8.10 p.m.
LORD DENHAM: My Lords, this and the next following Order are consequential on metrication and decimalisation. I beg to move.
Moved, That the Draft Wool Textile Industry (Export Promotion Levy) (Amendment) Order 1971, laid before the House on April 7, be approved. —(Lord Denham.)
LORD DIAMOND: My Lords, may I thank the noble Lord for his very full and clear explanation?

WOOL TEXTILE INDUSTRY (SCIENTIFIC RESEARCH LEVY) (AMENDMENT) ORDER 1971
LORD DENHAM: My Lords, I beg to move.
Moved, That the Draft Wool Textile Industry (Scientific Research Levy) (Amendment) Order 1971, laid before the House on April 7, be approved. —(Lord Denham.)

MOTOR VEHICLES (PASSENGER INSURANCE) BILL
Report of the Amendment received.

INDUSTRIAL RELATIONS BILL
8.13 p.m.
House again in Committee.
LORD HOY LORD HOY moved Amendment No. 168
Page 126, line 34, leave out ("may") and insert ("shall")
The noble Lord said: It seems to me that this is a very good Amendment on which to re-start our consideration of this Bill, because it is simple and we can all understand it. Throughout our whole discussions on this Bill we have been told that it is so complicated and so legalistic that it is beyond the comprehension of most members of the Committee, so I thought we might have an Amendment to distinguish between "may" and "shall". I raised this matter the other night, because the Government were unable to distinguish between two words of a similar character, and I told the noble Lord, Lord Drumalbyn, that I could not understand why he found it so difficult to reply to the question. If there is one argument which has gone on throughout all my years in the Houses of Parliament, it is the one about whether "may" means "shall" or "shall" meant "may". It has been my privilege, to hear the noble Lord, Lord Drumalbyn, argue both cases in different circumstances, and with a tremendous amount of conviction. But he himself is responsible for replying tonight, and he must make up his mind whether "may" means "shall" or "shall" means "may".
I always felt that this was one of those arguments which arose on Scottish affairs, as if it were our prerogative, but after a little research I found that it has been going on for a very long time. During the debates in another place on the Consolidated Fund Bill in 1961, Members there spent many hours finding out whether "may" meant "shall" or "shall" meant "may". I was interested to find that my noble friend, who is now Lord Diamond, played a very conspicuous part in that debate, but he did not give me that information and I had to find

1297
it out for myself. Again, in February of this year there was a very long debate in another place which upset my calculations and proved how ill-informed I had been. In the course of that debate, it was said that this problem had been with the Houses of Parliament for many years, and debates were quoted which took place in the 18th and 19th centuries —
THE LORD CHANCELLOR: And the 17th century.
LORD HOY: —on this subject. I am delighted to have the agreement of the noble and learned Lord the Lord Chancellor because he rather reminds me of the old story of the noble and gallant Viscount, Lord Montgomery of Alamein, who read the Lesson from the Bible and said, "'And God said'—and I agree with him". If the noble and learned Lord wants to adopt that pose I have no objection.
Throughout the centuries there has been this difficulty, and I thought I should raise the matter once more. I found that a few days ago there was a ruling on this matter in another place. The Chair said, "You can discuss the word 'may' in a clause, but I warn you that you must not compare it with the word 'shall' ". So they were in the very difficult position that they could discuss the word may" as long as they liked, provided that they did not mention the alternative. We are now in a very different position and your Lordships can discuss "may" and "shall" this evening. Your Lordships were very good on an earlier occasion in accepting an Amendment that I moved—perhaps because it was uncomplicated your Lordships were able to understand and agree with what I said. May I expect the same to-night?
This Amendment deals with workers who have to make a choice whether or not to pay into a trade union. If your Lordships will look at page 126 of the Bill, you will see that that gives a choice which is left to the man who does not want to make a contribution to a trade union. Paragraph 22 states:
) Any worker who—
… may propose to the trade union that, instead of becoming a member of it, ho should agree to pay appropriate contributions to a charity to be determined by agreement between him and the trade union".
1298
I am suggesting that if such an individual is to have a choice, there should not be any ambiguity in the alternative. In fact, if we are going to lay down legislation of this kind we ought to be saying to him if he is not going to pay into a trade union then he must accept the obligation and shall pay into some alternative organisation. To say that he may do it is, in fact, to leave the whole thing in doubt once more. First of all, he has made a choice that he is not going to pay into the trade union, and, secondly, has been left with this word "may" as to whether he wishes to do so or not. I think that is going much too far to meet the requirement of an individual of this kind. He can make the choice but we ought not to leave him with the further one, and I hope I have convinced your Lordships' House that the word "shall" is the word we are looking for and not the word "may".
8.22 p.m.
THELORD CHANCELLOR: I have obtained the leave of my noble friends to reply to this Amendment. All my Parliamentary life—and that goes back to 1938—I have wanted to know the sort of thing that goes on in the Scottish Grand Committee and now at last the truth has been revealed and, being almost entirely of Scots ancestry myself. I feel I should like at last to take part in such a discussion. I am bound to tell the noble Lord opposite that this is not, on the whale, an Amendment which we can accept. The dispute between "may" and "shall" usually relates to Government or local authorities, but in this case the worker who is within the two conditions laid down by 22(1) has three or four different options open to him.
He has a conscience. He realises that he has objections on the grounds of conscience to being a member of a trade union. Of course he can, he may, propose to the trade union as the clause provides that instead of becoming a member of it he should agree to pay appropriate contributions to a charity, but again he may not. He may have a struggle with his conscience and lose, and in that case he may become a member of the trade union in spite of his conscientious objection. He is perfectly free to do so under this Bill. Thirdly, he may have a tremendous battle between himself and his conscience and he may draw. Whereas

1299
he may recognise the validity of the objections to joining a trade union, he may on the whole recognise the enormous weight of his obligations to his fellow workers and, on balance, may think that the latter overcomes the former. So again he may take that option. Fourthly, he may say: "I do not like this place, anyway, and I am going to work elsewhere where they do not have these extraordinary arguments about contributions to trade unions. I am going to work in another occupation in another part of the country ". He may do that, too. So I hope I have persuaded your Lordships that he has several courses open to him without in any way breaching the terms of the Schedule. Thus I have achieved a lifelong ambition and have taken part in a Scottish theological dispute.
LORD POPPLEWELL: Is it not astonishing for the noble and learned Lord, the Lord Chancellor, to come up with a reply of this description? We are dealing in this instance with a man who is not leaving but is remaining in employment; a man who is refusing to join his trade union on conscientious grounds, but here it says that he "may". These particular clauses indicate that if a man remains in this employment he either pays his contribution dues or he pays a sum of money equal to the trade union contributions, or alternatively he pays to a charity. This word "may" surely is innocuous in this direction. Many of these people who object to paying these trade union contributions are extremely difficult people, and if they get an escape clause like this they will certainly take it. As they are not compelled, it is only "may", there will be the greatest difficulty in getting them out of a job and that may create difficulties—threatened strike action or whatever it may be—with the people engaged in the industry. This question of "shall" and "may" has been a recurring decimal ever since I entered Parliament many years ago, but I am absolutely astonished at the excuse for rejecting this put forward by the noble and learned Lord. If the Government are seeking to get some co-operation they cannot possibly insist on this word "may".
THE LORD CHANCELLOR: Unfortunately the noble Lord is an English-
1300
man; he cannot understand these fine theological distinctions. He has betrayed his absence of Scottish blood by his total incomprehension of the argument and what it is about. This man cannot remain in his employment, whether "may" or "shall" is put in. He has got to leave it, if he does not comply with the provisions of paragraph 22, or he can comply with paragraph 22 by joining a union. He has not only one option, he has three and there is no reason why he should not take any of them.
LORD POPPLEWELL: I suggest that the observations of the noble and learned Lord amplify the reasons why this Bill should be rejected completely. If this is the attitude of the noble and learned Lord, if this is the law that is going to speak on these matters, it indicates how dense law is, and the sooner we get back to common sense trade union type of negotiation and representation the better for everyone concerned. I suggest that the noble and learned Lord— learned in law—has indicated his abstruse denseness to understand anything at all to do with industrial relations and for that reason the sooner we cut this Bill's throat the better for everyone concerned.
LORD DRUMALBYN: Before the noble Lord sits down may I ask whether at some time in his life he was in a position to propose or not to propose?
BARONESS GAITSKELL: I am in the enviable, or perhaps unenviable, position of having agreed with my noble friend, Lord Hoy, when he made his explanation, and agreeing for once with the noble and learned Lord, the Lord Chancellor, when he made his explanation; I can only assume that somehow this is a reflection of this Bill which seems to me not the result of a deeply laid master-mind plan but of a thoroughly do-it-yourself job, so I am in a quandary. I do not know what the right answer is. I do not find it in either of the speeches which has been made.
LORD CONESFORD: I agree with the answer given by my noble and learned friend, the Lord Chancellor. The trouble about the Scots in this matter is that they never learn from experience; they

1301
can never get the distinction of "shall" and "may" right, or the distinction between "will" and "shall". The whole Committee is probably familiar with the case of the man drowning in Scotland and saying, "I will drown and nobody shall save me"— and, of course, he did drown by his own expressed determination. For that reason, I think it is in the interests of Scotsmen, among others, that the English usage should prevail. The only other thing I would add is one of my favourite quotations in politics, "He had a lifelong struggle with his own conscience but he always won."
LORD SLATER: It is always interesting, and most fascinating, to listen to Lord Conesford. Some of us used to listen to him in the other place when he was a junior Minister and one thing or another. He used to get some "stick" then, and he is getting some "stick" now during the course of this Bill, because he has been looking for Communists under the bed, and so on. Now we find he is entering into the field of Scottish operations. Let me say this to the noble and learned Lord the Lord Chancellor. He said he has been looking forward to the day when he can participate in a Scottish debate with a Scottish Member. He will remember that there used to be a Member of the other place who sat for one of the Edinburgh seats and who if he were here to-night in our place and had got hold of this Bill, would have been saying. "He may? He may what? Mr. Speaker, he may propose. Propose what? He may propose to a trade union that instead of becoming a member of it he should agree to pay appropriate contributions to a charity. What charity?". Then he would carry on and would say, "To be determined by whom? It has to be determined, Mr. Speaker, by agreement. By agreement with whom? Between the trade union and the individual." That is the type of Scottish debate that we became accustomed to in the other place, as the noble and learned Lord knows.
But here we have a situation which I think is absolutely ridiculous, where we are leaving the door wide open for an individual to come along and say that he "may" propose. I would say to Lord Drumalbyn and the noble and
1302
learned Lord, the Lord Chancellor, just as we used to get the hilarity of the Prime Minister with many of his Back Benchers, let them calm down a bit and let us get on with this, because to us as trade unionists it is most serious. It is no laughing matter. We are proposing that the word "shall" shall come here instead of "may". This will put an obligation on the individual, and will not leave the door wide open for him—because this is what you are doing. You are leaving this man with a form of relief whereby, if he feels so disposed, he can escape from what he has already said he was prepared to do. But if we put the word "shall" in, then it becomes an obligation on him, and the Lord Chancellor knows that to be correct. With all his legal knowledge, for which many of us respect him as we do for the stand that he has been able to take—and we have been able to read many of the judgments and everything else—he cannot get over that. I submit to him that he cannot get over the fact that he is leaving the door wide open to the individual by keeping this word "may" instead of "shall", because it is leaving a form of escape to that individual against the trade union in regard to charitable sources.
8.34 p.m.
LORD SHINWELL: As usual, I have a solution to this problem. This disputation relates to a matter of conscience. As we know, conscience is a very elastic part of one's anatomy; one can operate it in several directions. So my solution is this—and this is not of my own volition; I have been prompted to this solution by the observation of my noble friend Baroness Gaitskell, who began by agreeing with my noble friend Lord Hoy and then, after hearing the noble and learned Lord, the Lord Chancellor, decided to agree with the noble and learned Lord. This is another variety which affects one's conscience, and so my solution is a simple one. Let us have both "may" and "shall". That should satisfy everybody.
LORD SLATER: No, I am not satisfied.
LORD SHINWELL: I understand my noble friend Lord Slater is reluctant to accept my suggestion.
LORD SLATER: Of course I am.
LORD SHINWELL: What is even more startling, he regards my observations as being of a flippant character.
LORD SLATER: My noble friend and I belonged to neighbouring constituencies and I never always agreed with him and what he had to say when he was in his constituency, nor do I on this particular issue. I still stand by "shall" and not "may".
LORD SHINWELL: I have no objection to my noble friend Lord Slater standing by anything. In fact, I go further: he can either stand or sit according to his conscience. I have had the occasion during the course of these debates to offer various solutions. Unfortunately, all my propositions have been rejected. So I make a further effort and suggest it would read very well if the section read, "The person concerned" —that is, the person with a conscience—" can either decide according to 'may' or 'shall'." So he gets an additional option. because the noble and learned Lord the Lord Chancellor based his case in proposing the rejection of the Amendment—that has not been settled yet; it has to be put to a Division, I suppose —on the options. I am not sure whether my noble friends want to divide on an important matter of this kind, but the noble and learned Lord based his case on the options which were available to this person with a conscience. Here is a further option.
LORD BYERS: May I ask the noble Lord: why not add in the word "perhaps as well?
LORD SHINWELL: Certainly. This accords with an observation I made in an earlier part of our debates, when I referred to the number of adjectives which have been injected into this Bill. There are far too many. But on the other hand there is an advantage from the point of view of the Opposition, to those who want to see this Bill never implemented in a pragmatic form, and that is that if we add adjectives one after the other —"may" and "shall", and now "perhaps"; this is an excellent idea which has been proposed by the noble Lord, Lord Byers. If we have "may" and "shall" and "perhaps"—and I am open to any other suggestions —then, of course, we have got further
1304
options. Nothing could be better from our point of view, because I can imagine the legal luminaries associated with either the Commission or the Industrial Court, and even the entourage associated with the Secretary of State, to whom these matters may in the ultimate have to be referred according to what I heard to-day—and, if I may say so, I accept that view from a Parliamentary standpoint—taking a part. After all, the ultimate decision, if there is a dispute, must be taken by the Secretary of State; and, therefore, because of all these arguments that occur to me if they do not occur to any other noble Lord, I suggest we extend the options as far as we possibly can, with all the elasticity that is available. I am quite sure that that would satisfy everybody, even if my noble friend Lord Slater finds it difficult to accept.
LORD DAVIES OF LEEK: The trouble with the English and the Scots is that they do not understand their own language, and it takes a Welshman to look at it. That is what is wrong with this. I have said this before: that this Bill is the most ambiguous thing possible. It could not happen in Welsh or Latin. Let us look at it. My noble friends are correct, despite the effort of the noble and learned Lord the Lord Chancellor. What are we saying? The subject of this involved, tautological sentence is a worker—and it is not one worker; it is "any worker". What should this worker do? The operative word is "may". May what? He may pay. This is where the English language mixes it all up.
THE LORD CHANCELLOR: No.
LORD DAVIES OF LEEK: The operative word is that he has to "pay" something. The question we are discussing is whether it is obligatory on him to pay. We are now told that, instead of becoming a member of a union he "may" pay. I hope there is a learned judge who will take part in this debate; I really and sincerely do. I think, with all due respect to the noble and learned Lord Chancellor, that it does need the operative word "shall", because although it says "instead", it does not tie it up. It should be "shall pay", otherwise it is left in the air. I should like to bet, like Mr. Rippon is betting we are in the

1305
Common Market (God help him!), that I am right.
THE EARL OF HALSBURY: This might be an occasion when the Cross-Benches could be of assistance to your Lordships. The Government and the Opposition have been conducting this debate on friendly and good terms, and perhaps neither of them would wish to be aggressive in the face of the other, but I really do believe that nothing that is likely to he said on this matter is likely to change anybody's opinion. I therefore move that the Question be now put.
Moved, That the Question be now put. —(The Earl of Halsbury.)
8.42 p.m.
THE DEPUTY CHAIRMAN OF COMMITTEES (LORD FERRIER): The Question is, That the Question be now put. The Motion, That the Question be now put, is considered to be a most exceptional procedure that the House will not accept save in circumstances where it is felt to be the only means of ensuring the proper conduct of the business of the House. Further, if the Motion, That the Question be now put is proposed, the practice of the House is that the Question on this Motion is put without debate. The Question has been put without debate, but no Tellers have been appointed for the Not-Contents. The Contents therefore have it.*
The Question now is, That Amendment No. 168 be agreed to?
LORD HOY: May I say one or two words? I started off to move a very simple Amendment in your Lordships' House which I thought might provide a reasonable debate. Indeed, I quite willingly gave way to the noble Earl on the Cross-Benches. I was about to withdraw my Amendment, but I thought it would be quite unfair of me to deny him the right to make a contribution. I regret very much that he abused that privilege, and I am bound to say so to him without any equivocation. One of the lessons I have learned, perhaps, is that I shall not always be so generous in giving way in your Lordships' House. I regret more than anything else that it should have come from a Member who sits on the Cross-Benches. May I say that when I put this Amendment down at least I did one thing: I allowed the noble and
1306
learned Lord, the Lord Chancellor, to say I hat this was the first occasion in forty years of Parliamentary life that he had been able to take part in a Scottish theological argument. This had nothing to dc with Scottish theology. The noble Lord apparently has been infected because he spent a very happy weekend in Scotland last weekend. All I was saying was that this discussion started not in a Scottish debate but in English debates centuries ago. I have had many suggestions as to what I might add to it. I notice that the noble Lord, Lord Drumalbyn, did not take part. If he had, I might well have quoted what he had to say on this subject, but I think he chose the lesser part. All I want to say to your Lordships is that I am grateful to every Member who has taken part, and on the strict understanding that I shall be allowed to put this Amendment down once more, and any further Amendments, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
8.44 p.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 181:
Page 127, line 13, leave out from ("may") to end of line 18 and insert ("be referred to a joint panel of employers and trade unions or independent organisations of workers to be resolved")
The noble Lord said: I think it would be convenient if the next Amendment, which relates to this, was discussed at the same time. This Amendment speaks for itself. It is in line with our general philosophy, first, that where matters affecting trade unionists are concerned they can best be settled, if not entirely by trade unionists then partly by trade unionists, rather than seeking an outside body, and secondly, that where there is a simple way and a complicated way of resolving a difficulty, it would be more sensible to go for the simple way. The Schedule as it stands at the present time proposes, under Part IV, paragraph 23, that if a dispute arises between a worker and a trade union on any of the questions there set down, such as charity contributions, and so on, then the issue should be resolved by submitting the matter to an industrial tribunal. We do not think that it is necessary, appropriate or quick to refer a matter to an industrial tribunal. We think that the method we have proposed would be far more suitable; that

1307
is, the method of referring a dispute to a joint panel of employers and trade unions or independent organisations. When I look at the wording as it is printed on the Marshalled List I see that it says, in fact:
"be referred to a joint panel of employers of trade unions",
but that is obviously a misprint for: "employers and trade unions". I hope that your Lordships will agree that this is a far simpler and more relevant method of resolving a dispute. I beg to move.
LORD DRUMALBYN: The arrangements set out in Schedule 1 for resolving a dispute related to objections on grounds of conscience, payments to charity and so on, are similar to those in the agency shop provisions. What the noble Lord has not shown is why there should be different arrangements in the closed shop from those already agreed in the agency shop. The Industrial Tribunals will adjudicate in disputes on other related matters and there is no reason why they should not adjudicate on this sort of matter as well. The Industrial Tribunals have the advantage of informality, independence and experience in industry. They are well suited to the task that is involved here. I think that one must say quite squarely that there are some applicants who would not like a joint panel of employers and trade unions to have the last word in this matter. The reason is that they will already have been turned down once by the trade union and the trade union will again appear on the panel and may even have the casting vote. In many cases the applicant will have just as much objection to an employer being on the panel as to a trade union representative being on the panel. This is one of the occasions when we think it is a good thing to have an independent decision. We have already gone past and taken in our stride the provisions affecting the agency shop in this matter. It seems only sensible that the same arrangements should apply in the closed shop.
LORD DIAMOND: I am in a little difficulty. I do not recall how we dealt with this matter when it applied to agency shops. Is the noble Lord saying that this is something which escaped our attention in that discussion? I can only apologise for not having brought it up then. But
1308
the fact that we overlooked it then is no reason to overlook it now. I am grateful for his reminder and we will remedy it at the Committee stage. If, on the other hand, he is saying that we did take it up but did not succeed in persuading the Government as to the correctness of our cause then obviously it is necessary for me to have a second go to try to persuade the Government that this is the wiser thing to do.
I do not think that the reply, helpful though it was, was satisfactory. There are a number of possible disputes which are listed in this paragraph. The noble Lord referred to paragraph 23(1)(a) which says:
"whether his objections to being a member of a trade union are genuinely objections on grounds of conscience."
With respect, it was sensible and wise of him to refer to that one category because that category suited the rest of his argument: that the applicant might not wish to display his conscience to a panel which included a member of a trade union. But there are sub-paragraphs (b), (c), and (d). Sub-paragraph (b) reads,
"to which charity the contributions should be payable"
I do not think that the noble Lord, Lord Drumalbyn, would have extended his argument to this case: that it is sensible to have to go to an industrial court to decide to which charity the contributions should be payable. Surely that is a simple straightforward matter; if there is a dispute in which one person prefers a dogs' home and the other a cats' home, intelligent human beings can resolve it without incurring the trouble of going to the Industrial Tribunal. I do not know what the present situation is, but I do know that when I had a certain financial responsibility I was not anxious as a Member of the Government that the Industrial Tribunal should extend unnecessarily. Industrial tribunals cannot function efficiently except at some considerable cost to the public purse. We must justify that kind of expenditure. I find it difficult to think of any argument for justifying public expenditure; that is to say, for dipping into our pockets in terms of additional taxation, to provide for the machinery and the individuals to enable an industrial tribunal to be set up in order to determine whether it is a dogs' home or a cats' home which

1309
should be the recipient of a charity payment.
I recognise that there is a different kind of dispute to be settled where matters of conscience are concerned and I hope the noble Lord will recognise that there is a different kind of dispute to be settled where the matter of a dogs' home or a cats' home is concerned. If he will be good enough to say that he will consider this matter further and that if he cannot meet us completely on the question of reference to a joint panel for all these issues (which, with the exception of the first, are minor issues) he will consider whether some such arrangements could not be accepted for settling sub-paragraphs (b), (c), (d) we feel that we shall not have wasted the time in Committee in considering this matter.
8.55 p.m.
THE LORD CHANCELLOR: There is a very much more important question of principle involved here than the noble Lord has apprehended; and it is a serious one. The panel proposed by the Opposition is a panel of employers and trade unionists, but the person who is aggrieved and is in dispute with the trade union is not an employer but an independent worker, perhaps a Plymouth Brother, who has a dispute of conscience. I am not saying that a sensible Plymouth Brother and a sensible trade union would not settle amicably between themselves in all four cases. May I say in passing that if the noble Lord will look at Clause 9 he will find that we have there passed the same wording, except for the last which is peculiar to this schedule. The point is that if a tribunal of any kind is set up to decide a dispute between a and b there are only two fair ways of doing it. The first is to have arbitration set up by both sides—which would be an arbitrator nominated by the worker and not the employer, an arbitrator set up by the trade union, and an umpire to decide in the event of disagreement. The other way is to refer it to an independent referee of some kind, which is what is proposed by the Government. What cannot be fair in a dispute between a and b is to set up a tribunal on which one of the two parties is represented and the other is not. That is exactly what the Opposition have proposed here. I could never agree to that. I could never
1310
agree it its being taken back and looked at again from that point of view. It would be absolutely against my professional conscience to agree with it.
May I just say this to the noble Lord? He made a great deal of fun about a cats' home and a dogs' home, but I think he will realise that in this class of case—that is, in the case of a conscientious objector—you are dealing with people who do not have conscientious objections about precisely this kind of thing. It is no good mistaking it. If you are dealing with Plymouth Bretheren, Jehovah's Witnesses, anti-vivisectionists or whathave-you— and they are just the sort of people that you will be dealing with in conscience cases—
LORD BROCKWAY: But—
THE LORD CHANCELLOR: —forgive me—you get people who are extremely particular as to what kind of charity they will let their money go to. It may be that many of us think that what they believe is nonsense. It is not for me to say whether it is nonsense or truth. All I am saying is that if you think this is the kind of thing which is necessarily agreed by sensible people you are making a big mistake about the nature of conscientious objection. The nature of the charity might be a matter of serious dispute, and it is far better to refer it to an independent tribunal, which is what is proposed in the case of this agreement between the parties. The noble Lord, Lord Brockway, wished to intervene. I did not intend not to yield to him; I just wanted to conclude my sentence.
BARONESS GAITSKELL: I think the difficulty that noble Lords on this side of the Committee have arise from the refusal of the Government not to acknowledge the trade union dues after services rendered. The Government talk about there being three types of workers—the conscientious objector; the worker who, for some odd reason does not want to join a trade union, and the trade unionist. So we are here not talking just about a man who has a conscientious objection to joining a trade union. It is fundamental nonsense, absolute nonsense, for a man to pay to a charity when he has no conscientious abjection, because it is not

1311
the charity that renders the services to the trade union.
LORD TAYLOR OF GRYFE: My Lords, I am sorry to delay this debate but I agree with the noble and learned Lord the Lord Chancellor when he says that this is a matter of fundamental importance. In my lifetime I have had a good deal of experience of dealing with conscientious objectors. I know how precious is the right of a conscientious objector. I have been engaged in an industry in which there was a closed shop and we were compelled to dismiss conscientious objectors because there was a closed shop regulation with no protection.
The conscientious objector has to establish the genuineness of his objection. This is an extremely difficult thing for him to do, as I am sure that my noble friend Lord Brockway, who spent a good deal of time establishing a conscientious objection to war, will agree. That means that anyone who is going to make that judgment should be substantially above the conflict. In the nature of a conscientious objection in industry the man who, through religious beliefs or other principles, refuses to join a union —and there are such people—is not a popular individual. He is the odd man out. He is not highly regarded by the trade union and by his fellow workers, who consider him substantially as a "free rider" on the negotiations which they have completed to his advantage, so he is not essentially popular with the trade union.
Neither is he popular with the employer who likes to see a well-organised labour force, and order and peace in his establishment. It is easy to buy peace by making agreements with the majority and sacrifice minority rights. So I feel that it is far better to ensure the defence of this precious right of conscientious objection in our constitution that we should have, so far as possible, independent judgment. I believe that that is much more likely to arise from the industrial tribunal than from a body of trade unionists and employers who both have a vested interest, perhaps, in eliminating the odd man out.
LORD BROCKWAY: I was a little surprised on coming into the Chamber
1312
to find that we were still discussing conscientious objection. I am also surprised that there should now be so much support for the principle of conscientious objection from noble Lords on the opposite side of the Committee. That has not been my experience during the long years that I have been concerned about this issue. I do not want to make a partisan contribution; I want to make a constructive proposal, and I hope that the spokesman for the Government will consider it, and if necessary will give a reply at some later time.
I accept a great deal of what the noble Lord, Lord Taylor of Gryfe, has said. The judgment of the genuineness of a conscientious objection is probably the most difficult and the most sensitive judgment that anyone can make. I am very doubtful whether either the association of trade unionists and employers or the Industrial Court is adequate to reach a decision in these matters. The proposal that I want to make for the consideration of the Government is this. There is already an appeal tribunal on conscientious objection. Its members have long years of experience in this matter and I can say from my own appearance before them that they judge the issues, and they judge the sincerity and the depth of objection, from a long experience which I do not believe that a joint association of trade unionists and employers, or the Industrial Court could have. I am asking the Government seriously to consider this suggestion: that if there is to be an appeal on the ground of conscientious objection it should go to the existing appeal tribunal for conscientious objectors which has the knowledge, the experience and the sensitivity and which will come with all these advantages to a judgment. I hope, because I do not put this forward in a controversial way, that Her Majesty's Government will at least consider this proposal without insisting upon settling the matter which is before us now.
LORD BYERS: May I support what the noble Lord, Lord Brockway, has just said. It seems to me that we are searching here for something which will give real justice to people who hold genuine and sincere conscientious views. I agree with the noble and learned Lord the Lord Chancellor that it cannot be right to avoid an independent judgment

1313
by having a panel of employers and trade unionists. The next best thing would be the independent industrial tribunal. Bat it had not occurred to me that it could be the same as normal conscientious objection. I think that what the noble Lord, Lord Brockway, has said has added a new dimension to this debate and one well worthy of consideration by the Government.
THE LORD CHANCELLOR: I do not want to come to a hasty judgment about this, and I think it would be indecent if I did so. My first impression is that the existing Tribunal, although it might be adequate for matters falling under paragraph (a), could not deal with those under (b), (c) and (d). But the right thing for me to do is to refer what has been said to my right honourable friend. I cannot give any undertaking beyond that. What I am sure of is that the proposal in the Amendment will not do.
THE EARL OF CRANBROOK: I have had some experience of this just before the recent war, when I was a member of the conscientious objectors' tribunal for a quite considerable time, and I do not think that the noble Lord, Lord Diamond, really understands fully the mentality of the true conscientious objector. My recollection is that it was difficult, but not impossible, to find out whether a man's fundamental objection to fighting was due to conscious or to a subconscious dislike of having to kill somebody. When we got to the next step—as to whether it is to be a cats' home or a dogs' home —it was exceedingly difficult, even if one had been doing it for some time and had a reasonably practised, impartial outlook, to determine whether all of the tiny things that followed on it were really conscientious or not. I am certain, with the greatest respect, that the noble Lord, Lord Diamond, in saying that that is an unimportant thing, which can be dealt with by anybody else, is entirely wrong and I hope that he will not press this.
LORD DIAMOND: I think that the debate has been extremely useful. It has been educative to me and no doubt to other noble Lords. If I can take it to bits for a moment, I hope that I made it clear earlier, on Amendment No. 231A, which dealt with disputes as to whether objections are genuine on
1314
grounds of conscience, that I regard this as in a separate category. At first sight, I am attracted by what my noble friend Lord Brockway has said, with his great experience. The noble Earl has just said, out of his practical knowledge, that he found that this was a method by which we could with difficulty arrive at a decision. So I am inclined to favour a sensible method (or it may be "methods" in the plural) of settling that kind of dispute, which we all recognise is on a difficult level from other disputes.
Here we have a conflict of evidence. My noble friend Lord Delacourt-Smith, who has given great thought to this (if I may say so without embarrassing him) has enlightened us by what he has said on this topic. From a lifetime of experience as the chief officer of a large trade union, my noble friend made it clear earlier on that trade unionists immediately recognised and respected the sincere objections of the conscientious objector. My noble friend Lord Taylor of Gryfe takes a different view. No doubt his view is based on his experience and his experience is to the contrary. It may be, therefore, that I am wrong in hoping that we could find a lesser and simpler method of arbitrating and arriving at an acceptable, just and fair decision than the rather heavy method proposed here.
I have taken on board what the noble Lord said— I should be a fool not to do so, in view of his knowledge and experience. I am particularly grateful to the noble and learned Lord the Lord Chancellor, who gave me to understand that he would take this away and look at it. He knows what we are trying to do. We are trying to find an appropriate method to resolve disputes based on conscience which is at a very different level; namely, at the top level, and disputes relating to the dogs' home or the cats' home, which may be at a much lower level, or may be, in consequence, as the noble Lord told us from his experience, at a similar level, because it is all tied up with the psychology of the conscientious objector. I do riot think I want to press the noble and learned Lord to do more than that at the present stage. I think the Committee would like to leave it there now, and I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD STOW HILL LORD STOW HILL moved Amendment No. 187A.
Page 127, line 35, leave out ("consulted") and insert ("construed").
The noble Lord said: The object of this Amendment is to correct what I believe is simply a typographical error. I see the noble and learned Lord the Lord Chancellor nods his head, and therefore I do not think I need take the time of the Committee in explaining the matter. It seems to me obvious that the word "construed" should replace the word "consulted". I beg to move.
THE LORD CHANCELLOR: That is quite right. We accept the Amendment.
9.18 p.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 188:
Page 127, line 39, at end insert—
("( c) every employer of relevant workers shall be covered by such agreement whether or not the employer is a member of the employer's association or associations").
The noble Baroness said: I beg to move the Amendment standing in the names of my noble friends. I hope that it might be for the convenience of the Committee, and I understand it is agreeable to those who support the Amendment, that we should discuss Amendment No. 188A together with this Amendment, because in effect they cover the same point. I should have thought that in some respects Amendment No. 188A was more comprehensive than our Amendment, quite apart from the fact that our Amendment has a slight blemish of a misplaced apostrophe in "employer's".
The object of both these Amendments is to try to ensure that where there is an approved closed shop agreement it shall be universally applicable to that particular industry or section of industry, and the particular type of worker who is included in it. The reason for this is quite simple. The reason is that it is the bad employer, the bogus employer, the fly-by-night employer, who is likely to create the real difficulty in this situation. If he is not caught by the provisions of the agreement, then the workers concerned will undoubtedly suffer. The respectable employer, the conscientious employer, the good employer in all senses,
1316
is likely to be a member of his association, and likely therefore to observe the agreement and the conditions thereof. In the entertainment industry, particularly, it is well-known that one sometimes has employers who are not men of great substance, who may be speculative, and who may not belong to their association —indeed, whom the appropriate association, as I understand it, would not perhaps particularly wish to take into partnership. There is also, so far as the cinema industry is concerned, the situation where the employer legally is a firm, which is established simply for the production of one film and then goes out of existence. The firm itself may well not be a member of the association, although the body from which the finance is coming may be. That does not help in this particular situation, of course, because the closed shop agreement is with the employer, not with, say, the distributor, who may be providing the finance and so on.
I do not wish to go further into detail at this point. Those who are sponsoring the second Amendment, No. 188A, have a much greater knowledge of this matter and are likely to deploy all the arguments. I thought we should move our Amendment, although it is not quite as broad as the second Amendment, because we would wish to indicate clearly that we are well aware of this problem in at least one of the industries where the closed shop conditions are likely to prevail. We are very much in sympathy with the fears and apprehensions of those who want to be quite certain that if one does have a closed shop arrangement it shall be a genuine protection, not only for the workers, but also for the good employers, which is so important. They suffer from the standards of an industry being dragged down by irresponsible employers, or men of little worth. For those reasons, I have pleasure in moving this Amendment, and look forward to hearing the arguments of other noble Lords in support of the next Amendment.
9.21 p.m.
LORD STOW HILL: My noble friend Lady White has very clearly and forcefully deployed the general considerations in support of the concept which underlies Amendments Nos. 188 and 188A. The Amendments are slightly different in

1317
scope and in operation. It is your Lordships' desire that both should be discussed together and, as my name appears on the second Amendment, may I confine my arguments to explaining the purpose and the reason why the second Amendment is put forward. My noble friend Lady White referred to the position of Equity. I should like, at the outset to explain from the point of view of Equity how the arrangements embodied in the text of the Bill before your Lordships' House will affect Equity. In the entertainments industry, particularly in that part of it which provides films for the public, more often than not a company is formed for the production of a particular film and it remains in existence only while that film is being produced and displayed. In due couse it ceases to exist. Very often that company is a subsidiary of a larger company which is providing the finance and which itself is a permanent, long-term film company, and a member of the relevant film producers' association. But the subsidiary company (and it may not be a wholly owned subsidiary, but a company partly owned by the larger, permanent film company) is not a member of any association. That is the rule rather than the exception in the film industry.
In the theatre world that practice is not so prevelant, but there you have something which is not wildly dissimiliar; you have partnerships formed for the production of a single play. When the play has been produced the partnership is dissolved. The partners are not members of any long-term body, or any association which could normally be brought within the arrangements for the approved closed shop.
If therefore the Bill is passed in its present form and under Clause 16 and Schedule 1 steps are taken jointly by Equity and by a particular film company or a company producing plays, that really would leave the position very largely uncovered so far as the actor and actress—either film actor or actress, or an actor or actress in a theatrical production—are concerned. They would not be protected or brought within the scope of the approved closed shop arrangement; they would be unprotected and therefore exposed to all the strains and dangers which were outlined in the discussions
1318
your Lordships had recently on the situation of Equity.
The casting agreements, I think your Lordships generally agree, would fall within the scope of a closed shop agreement. The question whether they would come also within the scope of a pre-entry agreement under Clause 6 of the Bill has been regarded by your Lordships as somewhat marginal; and the casting agreement, I think, has been described by your Lordships as "a point of entry agreement" which may be just within or just outside the scope of Clause 6. So Equity, under the arrangements proposed in the terms of the Bill, feels that it and its members would be largely unprotected so far as the production of films and plays is concerned. It is to try to remedy that situation, in particular, that Amendment No. 188 has been framed; and the object of the Amendment as so framed is, in effect, to build itself upon the model of, for example, Section 8 of an Act of Parliament well known to your Lordships' Committee and indeed referred to in our debates; namely, the Terms and Conditions of Employment Act 1959.
At first hand it may be said, "Well, if there is an agreement between a union and an employer or association of employers that there should be a closed shop, and that closed shop is subsequently embodied in the form of an approved closed shop agreement, it is perhaps going a little far to say that it should be binding on employers who are in no sense willing parties to that agreement." That might be argued, and if so I would reply at the outset by saying that in terms of industrial relations a situation of that kind is well precedented. It is precisely precedented in Section 8 of the Terms and Conditions of Employment Act 1959, upon which this Amendment is modelled.
That section of that Act contemplates a very similar situation: a situation in which there are recognised terms in an industry and in which it is shown to the industrial court, under the 1909 Industrial Courts Act, that a particular employer has failed to measure up to the generally accepted standards of that industry. Those standards may have been settled, and probably would have been settled, by an agreement between unions and employers

1319
or an award of the court. Whichever way they are settled, they have become the recognised conditions of employment in the industry. Section 8 provides that, if it is demonstrated to the industrial court under the 1909 Act that a particular employer has fallen below those agreed standards, the court can order that it is to be regarded as an implied term of the contract between him and his employees that those standards are to be observed.
Almost exactly the same thing is sought by Amendment No. 188A. Similarly there, what those who support it are arguing is this. They say that if an employer who is not a member of an employers' association which is itself party to an approved closed shop agreement, or an employer who is outside those arrangements, wishes to go into that field of activity, if he wishes to engage in the production of films or plays, he must conform if there is an approved closed shop agreement in existence with that approved closed shop agreement binding on the persons who are affected by it, subject to one condition. The condition to which it is subject is clearly set out in the clause; namely, that the employers' association and the union which are parties to the approved closed shop agreement—and then I quote:
"represent a substantial proportion of the employers and of the workers respectively in that trade or industry or section of a trade or industry."
That precisely follows the model in Section 8 of the 1959 Act to which I have referred, and therefore I hope your Lordships will come to the conclusion that it is broadly in stream with the general line of thinking as to the proper format of industrial arrangements. It induces no new concept; it simply emphasises what I submit is absolutely fair, and indispensable in the case of Equity, that one of these—I do not wish to use a pejorative term like fly-by-night" companies (I am not suggesting they are), but companies whose existence is likely to be temporary, who may not be as far as resources are concerned particularly strong or stable must comply with the standards which employers and unions broadly representative of the substantial number of those who work in that industry have accepted by jointly applying for and obtaining approved closed shop agreement.
1320
I emphasise it is the Equity case, it is the case put forward in view of the requirement particularly of the case of Equity; that is the case and that is the framework it is to take. The object of those who move this Amendment is to ask the Government to give serious consideration to this problem. They may take the view that although Equity and the entertainment industry generally can put forward a case for this change, it is not so easy to advance a case in respect of the industry generally. Where you have a large-scale employer, the union with a very large membership which covers all, or nearly all, the workers in the industry, it may be argued (I do not support the view) against my noble friend that it is not so easy to maintain the proposition for which he contended; but if that is so and consequently the Government feel that the scope of the Amendment I am moving is also too wide I hope that they can rephrase it between now and the Report stage in such a way as to limit it to Equity and similar organisations. That can be easily done by introducing into the Amendment words of limitation, and that itself would be well precedented in the terms of this Bill. In this Bill Clause 25 excludes from its operation a number of particular branches of industry, which are described—five of them, I think, in Clause 25—and there would be nothing contrary to the general spirit of this Bill in limiting the scope of this Amendment to the entertainment industry, if that is the right term.
I earnestly ask Ministers who will reply to say that they recognise there is a real problem here— that Equity will be left wholly exposed, and its members will be left largely unprotected by the present arrangements for closed shop agreements—and will consider how it can be dealt with. If the Government feel that there ought to be some principle embodied in the Bill in the terms of the Amendment I propose, I would accept that it should perhaps be limited to those sections of industry where there are companies separate and independent from the broader organisations such as those with which Equity have to deal. I beg to move.
LORD DAVIES OF LEEK: It is with some trepidation that I follow what I consider that beautifully cogent and fine

1321
exposition of this Amendment, No. 188A. Nevertheless, without in any way expanding or filibustering, I want to add my voice on this, because, as my noble friend said on Clause 25 and on page 154, Schedule 7 (which is the complete Terms and Conditions of Employment Act), really this clause needs some consideration. I appeal to the Government in this case to give some attention to my noble and learned friend. I could give several relevant examples but I will stick to only one so as not to weary the Committee. I will take the example of the theatre, particularly at Christmas time—the rep. companies and pantomime. Here would be an opportunity for some of us to form a small company, in which we might make the Lord Chancellor the hero and perhaps make a fortune next Christmas.
I do not want to upset the noble and learned Lord, the Lord Chancellor, because we get on very well together, but in the theatre there are still many independent managements who are not members of organisations of any kind or of organisations of reputable employers; and many of these operate speculatively for short periods. I know plenty of people on the fringe of this overcrowded profession who will work for next to nothing at these periods of the year, and are therefore exploited. Some of these independent managements are of such a character that associations representing the substantial employers prefer not to have them in membership, and I do not think it would be beyond the wit of the Government to look at this in depth and probably discover an approach such as the one in Clause 25, which would give justice and equity to these representatives of the entertainment industry. I sincerely hope that the brilliant case that has been put forward here will be listened to, because if some attention is given to that the Government may discover an answer.
LORD COLLISON: May I refer to paragraph 25 and ask a question before the noble Lord replies? As I read paragraph 25, it deals with a closed shop agreement made between an employers' association and one or more trade unions. In sub-paragraph (a) the employer who is attached to that association is made patently clear either by name or general designation. Sub-paragraph (b) says that any employer who for the time being—meaning at that time—is a member of the
1322
employers' association, whether he was a member of it on the date on which the agreement was made or not, is covered by the clause and required to conform to it. I should like to question what happens if an employer ceases to be a member of the employers' association. This point may be covered in some other part of the Bill, but if it is not it seems to me that an employer who wishes to evade responsibility under Clause 5 could easily do so by leaving the employers' association.
LORD DRUMALBYN: We have had a very interesting debate on this issue, and it is a matter which has both wide general implications and, as the noble Lord, Lord Stow Hill, made so clear, it also his a particular inspiration—if that is the word—from Equity. I am sorry to have to tell the Committee that I should find great difficulty in accepting this Amendment on general grounds of principle. There are four reasons for this. In the first place, the Amendment would merely expand the scope of an approved closed shop agreement; it would mean that employers who are not parties to an agreement, or not members of an association which had signed an agreement, would nevertheless find themselves bound by it and their workers would be compelled to join a trade union. I recognise that there are some affinities in this regard with wages councils, to which the noble Lord, Lord Stow Hill, referred, but there is the important difference that the initiative here would rest with people in the industry and that their powers would be very much wider. As the Amendment is now drawn, it is clear that it would be possible for a small number of employers, or indeed a single employer, to enter into an agreement which would provide for the establishment of a quasi-statutory council. I think in her own Amendment the noble Baroness intended it to apply to more than one employer, but this would enable a small number of employers to enter into an agreement which would provide for the establishment of quasi-statutory council whose decisions and rules would be binding upon all employers in a particular sector, regardless of the fact that they had not been parties to the original agreement.
We think this is objectionable in principle and is quite distinct from the statutory wages council. This would be a

1323
particular agreement between particular employers and particular associations and is in a different category altogether from the statutorily formed wages council. The mere fact that it has the approval of the Commission on Industrial Relations and the Industrial Court to set up a closed shop agreement does not in any way justify the extension to employers who were not covered by the agreement that was submitted to the C.I.R. and the Industrial Court.
There is a second important objection to this, and it is that the agreement would apply in areas and circumstances which had been left unexamined by the C.I.R. —had not been touched by the C.I.R. and indeed could not be touched in its investigation of the need for the agreement. It may well be that in some of those areas the alternative of an agency shop agreement would provide a satisfactory arrangement, and that is an important test of the need for a closed shop.
The third objection in principle is this: the provisions which provide for an opportunity for workers to call for a ballot before an agreement is approved would be made quite unworkable by the Amendment, because nobody could say with any certainty or any precision who, at the time of approval, was covered by the agreement and therefore entitled to challenge its establishment and vote in the ballot. So I am afraid this proposal just would not fit in with the arrangements that we are in process of considering. Indeed many of the establishments, both employers and workers, affected by the agreement would themselves be unaware at the time that the closed shop obligations were being imposed upon them. This makes it difficult to agree to an arrangement of this kind. They have no chance of objecting to them. For these very practical reasons I am afraid the Amendment will not do. In any case the provisions of this Schedule, together with those in Clause 16, are intended to ensure that the closed shop agreements will be approved only where
1324
they are freely and willingly made and are found by the C.I.R., after careful examination, to satisfy the carefully defined criteria contained in paragraph 5 of the first part.
There is another objection—or at any rate it is not an objection but it does not help the Amendment. The Amendment would not solve the problem of the ephemeral employer, the fly-by-night employer, whatever you like to call him, the employer whose production is of short duration and who has moved on before any action can be taken to persuade him to accept and apply the terms of the closed shop. If he and those who work for him are content not to operate the closed shop agreement, he will not be caught by this Amendment to any greater extent in practice than he would be caught by any action the union could take against him at the present time, and this applies particularly to Equity. As noble Lords who have had to deal with these things know very well, Equity may not be able to do very much about an employer of this character in one production, but they can have quite a lot to do with him when he tries the next production.
I quite agree, and I do sympathise, with the search of the union for some way to circumscribe his mode of operation. This is a severe difficulty; it is a difficulty that we discussed at great length on Tuesday night. But I must say, with great conviction, that it is no part of these provisions for including closed shop agreements that closed shops should in future be more easily obtainable in areas where there are difficulties in obtaining them at the moment. I suggest to noble Lords opposite that they should think very hard before committing themselves to the proposition that the law can license two parties to make agreements binding on third parties, because this is what they are proposing in this provision. And at a time when noble Lords are finding difficulty in agreeing to two parties making agreements binding on each other, on themselves, I think it really is rather paradoxical that they should be seeking to make agreements binding on third parties.
LORD COLLISON: I do not think I got the answer to the question which I asked, and I am still worried about it. I may be missing the point, but what is the situation if a trade association concludes the agreement and an employer member of it then withdraws in order to avoid being caught by the agreement?
LORD DRUMALBYN: I apologise to the noble Lord, Lord Collison, for not having attempted to reply to that question. As I see it, an employer is free at any time to leave an employers' association. However, if one takes an organisation of the type of Equity—we are talking of a closed shop agreement—it has its ways of seeing that it is difficult for the producer or the manager to recruit for his next production, once he has not only left the association—but ceased to keep in line with the rules of the closed shop agreement. Of course, he might leave the association and still keep in line.
LORD ARCHIBALD: I had not intended to intervene, because I think I had a fairly full say on the general principles of this matter one or two nights ago, and I was afraid that anything I might say would tarnish, rather than embellish, the very cogent speech which was delivered by my noble friend Lord Stow Hill. But, if I may say so to the noble Lord, Lord Drumalbyn, I think his reply has been based on generalities and legalities, rather than a consideration of the practical workings with which we are concerned here. May I make two assumptions—and it would be convenient to have the noble Lord's attention—sticking only to the film production side, because I am not really familiar with the theatrical side. Let us assume that the film producers' association registers, and that, with Equity, they agree and have an approved closed shop arrangement. The members of the Film Production Association include the major studios, and these studios make it a condition of any producer coming to make a film and hiring space that that producer will observe all the terms of their agreement. But there are a few small studios which are not in the Film Production Association, and
1326
what I called the other night an ephemeral producer may make a film mainly on location with just a few shots in one of these small studios, and with their sound recording, and that sort of work. They would be outside the operation of the approved closed shop unless we have some sort of overall regulation as is set out in Amendment No. 188A. I do not believe that there is any real practical difficulty about it. I think the number of people affected who would be outside the Producers' Association is so small that to regard it as an agreement between two organisations to impose conditions on third parties is straining the argument far beyond anything that is reasonable.
LORD BERNSTEIN: The noble Lord, Lord Archibald, mentioned films. Could I give an example of what happens in the theatre, and perhaps the noble Lord will explain to me what could happen and how quickly it could happen. Five young men of Cambridge University have put on a show and decided that they would like to bring it to London. They find that a theatre is free for a certain number of weeks. To go into that theatre they must have an agreement, with a closed shop, with the National Theatre Group Employees' Union, perhaps the A.C.T.T. if they are doing any filming, the electricians' union, and so on. How quickly can they get to work, get their show on the stage and comply with all the legalistic requirements of this Bill?
9.53 p.m.
LORD GARDINER: I think the noble Lord's answer is a very disappointing one. After all, this is a very old provision in industry, as my noble friend Lord Stow Hill has pointed out. The words themselves are taken from Section 8 of the Terms and Conditions of Employment Act 1959 which is conveniently set out on page 155 of the Bill. I think I am right in saying that the conception goes back much earlier than that; that if the m tin employers and employees in a trade or industry, or in a section of a trade or industry, have agreed terms and conditions, a tribunal—and I think this

1327
goes right back to the old Industrial Disputes Tribunal—finding some rogue employer who is not observing terms and conditions and has not joined the original body, can he made to do so.
LORD DRUMALBYN: What I said was that the kind of agreement that is envisaged here would go much wider than just terms and conditions of employment.
LORD GARDINER: That may be so, and the precise terms of the Amendment may not be right. What I find disturbing is that I do not believe that the English theatre can sustain the high reputation which it now has if Equity goes under. The governing question for the last two or three days on this point has really been whether the Government have the will to see that Equity survives; whether the Government are saying to their draftsmen, If it is at all possible, you must put up Amendments by which Equity can be saved". I am afraid that it is only too apparent, from what has come from the Front Bench opposite during the last two or three days, that the will is not there. I simply cannot believe that it is impossible to make provision for this special case if the Government decide to do so. I would appeal to them again to show some signs that they really want that to happen.
LORD DAVIES OF LEEK: I sincerely hope that this appeal will be listened to in great depth. Will the noble Lord explain to me what happens when employment is so casual and brief? There would simply not be enough time for the procedure set out in Schedule 1 to be operated. There is no new principle in this Amendment. It is the same principle as that which underlines the provisions in the Terms and Conditions of Employment Act 1959, which is printed on page 155. I think there is a case worthy of consideration here.
LORD STOW HILL: I should like to say with real sincerity to the noble Lord, Lord Drumalbyn, that I think he has assisted us enormously in our discussions and I personally am very grateful to him. He has carried a very heavy burden. But I must also say to him that I think his answer on this Amendment is not at all convincing. I should like to deal with the four points that he made. But, first,
1328
I should like to reply to the question, which I do not think he answered, which was asked by one of my noble friends. He asked: what was the position of an employer who sought to withdraw from an association which was party to an approved closed shop? If my noble friend will look at paragraph 25 of Part V of Schedule 1, he will find that the answer there is that the employer is himself individually bound by the terms of the approved closed shop agreement, and therefore cannot, so long as he is within the scope of the operations to which it applies, resile from its obligations. I think that is the answer to my noble friend behind me.
THE LORD CHANCELLOR: I may be wrong, and I am saying this rather tentatively. I think that the noble Lord is quite right in referring to paragraph 25, but there are two cases in that paragraph; one is the case which he stated, and then there is
"(b) in any other case".
I think that that would be a complete answer to the question. But subject to that, I would agree with what the noble Lord has said.
9.57 p.m.
LORD STOW HILL: I am very grateful to the noble and learned Lord for adding that. Now may I go back to the speech to which I desire to address myself in particular? May I take the four points which, if I remember them correctly, were: first, the situation that we are considering is not to be equated to the situation which arises out of the operations of wages councils; secondly, after all, any employer could bring about an approved closed shop agreement and that would be binding on a whole lot of employers who were not in any sense privy to it; thirdly, the voting arrangements would be thrown wholly out of gear; and, fourthly, the employer who did not wish to conform would, in any event, hardly be caught by the provisions of the approved closed shop agreement. May I take each of those points and seek to give an answer to them?
In the first place, I am not talking about wages councils. I selected, as what I think is a particularly close parallel, Section 8 of the Act of 1959 which is set out on page 155 of the Bill. What are the points of parallel? Section 8 operates

1329
where there has been either an award or an agreement establishing generally accepted conditions. The Amendment which I seek to support provides that, where you have a similar provision—namely, an approved closed shop—brought into being by a joint approach by employers and a trade union to the Industrial Court, which has activated the Commission and where there may or may not have been a ballot, then in that almost exactly similar situation the Amendment is to operate subject to one qualification which really answers, I should have thought, the next point made by the noble and learned Lord.
The next point which he advanced was that, after all, if the Amendment were accepted, any employer could in effect force upon other employers wholly alien to him provisions of an agreement which they did not wish to accept and to which they were not party. In saying that, the noble Lord has, I put it to him, forgotten that both in Section 8 of the 1959 Act, and also in the terms of the Amendment for which I am content, there is the further requirement that the employers and trade unions concerned must be substantially representative of all workers employed in that Section of the industry. It is not just any employer; it is an employer who has, with the necessary trade union co-operation, activated and succeeded in producing a favourable result from the procedure specified in the first Schedule to the Bill. That is the position, and even then that would probably have involved a vote by the majority of the workers who would he affected by the agreement. That is the situation, and only then would the new clause operate if it could be said of that employer that he was broadly representative of a substantial number of workers in that section of the industry. So I submit that the second point made by the noble and learned Lord really will not stand up.
LORD DRUMALBYN: Of course the noble Lord will be aware that there are industries in which there is a dominating employer.
LORD STOW HILL: Of course I am aware that where you can say of a dominating employer that he, by the machinery provided, has brought into being an approved closed shop agree-
1330
ment, and that the dominating employer is representative of a substantial number of workers in the industry, then the new clause operates. I see nothing objectionable in that. I should have thought that was not unreasonable.
The third point the noble Lord made was that after all it would wholly disrupt the proposals for a ballot, at present incorporated in Schedule 1. With respect, I do not agree that the workers who take part in the ballot in terms of Schedule 1 are what are called "the relevant workers". The "relevant workers" are the workers who would be affected by the approved closed shop agreement, and if the approved closed shop agreement in this particular case would affect all the workers employed by employers in that industry they become, in terms, relevant workers, and they would all have to take part in the ballot. If there is any doubt on the existing wording of the Schedule, it is an easy thing—I should have thought a matter of drafting—to put it right and bring about that all the workers have to take part in the ballot.
The fourth point was that, in any event, an employer who did not wish to conform would not really be affected. Again, I do not agree. A company may last for six months; it may last for a year; it may last for two years; it may last for three years. As I understand the position, these closed shop agreements would come within the scope of collective agreements within the meaning of Clause 33 of this Bill, and it is an unfair industrial practice to breach the terms of a collective agreement. Therefore the company concerned, if it disregarded the terms of the closed shop agreement to which it would automatically have become party, would be committing, as I understand the Bill, an unfair industrial practice and be liable to damages. You may say that a fly-by-night company would not have any money to pay damages, but they are not all like that. There are a few like that. I do not wish to speak in deprecatory terms of any of them. I do not know about them. If there are any that are wholly insubstantial they can slip through any legal net, but I am assuming that they are the minority and that the majority are companies of limited duration in time but conducted nevertheless by respectable people with assets necessary to meet their liabilities.

1331
I hope the noble Lord will say he will take the matter back and think of it between now and Report. I hope he will tell me he will at least think of it. He has kindly indicated that he has some sympathy with the problem; he recognises that there is a problem. I hope he will say that, having that sympathy, he will give further thought to it.
Speaking for myself, I do not know what will be the view of those who put their names down to this Amendment. I myself would wish to give the Government that opportunity and not press the Amendment, but if the noble Lord feels that he really must just adopt a stonewall attitude about this and his mind is concluded, I hope the Committee will express a view about it.
BARONESS WHITE: I have no intention of going over the ground which has already been covered so comprehensively and lucidly by my noble friend Lord Stow Hill. If the Government are not prepared to give a firm undertaking to meet the point—not just to look at it again, but to meet the point we are trying to make—then I must ask my noble friends to support our Amendment No. 188; otherwise I think this really does prove that the whole provision of Clause 16 and this Schedule, which gives effect to it, is really bogus. The noble Lord is looking a little hurt at this, but really and truly it is. With great respect, it is no use saying, "We recognise there are certain exceptional industries". It is only exceptional industries we are dealing with. This is not a matter which would affect very large areas of industry, because the conditions prerequisite for the formation of a closed shop at all are so difficult and so onerous that hardly any industries will be able to get recognition as closed shops.
Therefore, we are dealing only with some very special instances, very specialised industries, which the Government themselves have recognised—even with their own principles, with their dislike of the closed shop—need some quite extraordinary protection. The entertainment industry is one of the main ones, and seafaring is another. We have not said a great deal about that, but my noble friend, Lord Blyton, I think it was, pointed out the absurdities of the ballot provisions for closed shop recognition so
1332
far as seamen are concerned. The thing is quite unworkable. Therefore, if the Government are not prepared to look realistically at the true conditions in either the entertainment industry or the seamen's industry—the two main industries for which Clause 16 and this Schedule were incorporated in the Bill—then I think I am fully entitled to say that this is really a bogus gesture. For those reasons, unless we get a firm assurance that this point will be met, I think we must certainly vote in favour of our Amendment.
10.5 p.m.
LORD DRUMALBYN: Perhaps I may say just a word or two, because I am afraid I cannot concede this point. The noble Lord, Lord Stow Hill, argued very lucidly, if I may say so, what was essentially a general case, and I think it must be argued as a general case to succeed. I am being pressed, and was pressed on the last occasion, to make special arrangements with regard to one particular industry—a closed shop in Equity. I am bound to say that I think noble Lords opposite are taking a very pessimistic view of the future of Equity. We simply do not take that view under the arrangements that can be made. I do not know how far Equity will be able to bring themselves within these provisions, but we believe that they could make adjustments to bring themselves within the provisions. That is one point.
The second point is that the reason why we cannot give way is that it does not seem to me to make sense that a party which is not a party to an agreement should automatically become a party when that agreement comes into operation. We do not think that makes sense in this context, because this is so much more far-reaching an agreement than one merely about terms and conditions of employment. I need not labour this point because on Tuesday night noble Lords were at great pains to point out how Equity assisted in keeping up the standards, and all the rest of it. Of course that is so, but it is by reason of their membership of a club, and their compliance with the rules of the club, or the rules of the union in this case. This is quite a different consideration and we just do not think it is right, even if it were practicable, in a case like this to cover non-members as well as members.

1333
After all, we start off in the closed shop arrangement by insisting that the employer and the union must agree to the application, and the union only can cover their membership. The noble Lord says that we were wrong about this, and the words used are "relevant workers". How is the C.I.R. going to find out who the relevant workers are for the purposes of the ballot? Again, if he looks up the powers of the C.I.R. he will find that they have power in regard to a ballot to obtain the names of the members of the unions but how would they be able to get the names of everybody else? How could
he ensure that the workers were able to give their assent to the closed shop? Because this does not fit in, and because on a matter of principle we do not think it is right that parties who are not parties to an agreement should be bound by an agreement of this sort. I am sorry, but I am afraid we must resist this Amendment.
On Question, Whether the said Amendment (No. 188) shall be agreed to?
10.12 p.m.
The Committee divided: Contents, 52; Not-Contents, 90.

CONTENTS

Archibald, L.

Evans of Hungershall, L.

Ritchie-Calder, L.

Ardwick, L.

Gaitskell, Bs.

Sainsbury, L.

Bacon, Bs.

Gardiner, L.

St. Davids, V.

Barrington, V.

Hall, V.

Samuel, V.

Bernstein, L.

Henderson, L.

Serota, Bs.

Beswick, L.

Henley, L.

Shackleton, L.

Blyton, L.

Hoy, L.

Slater, L.

Brockway, L.

Janner, L.

Stamp, L.

Brown, L.

Lee of Asheridge, Bs.

Stow Hill, L.

Buckinghamshire, E.

Lindgren, L.

Strabolgi, L. [Teller.]

Burntwood, L.

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

Swaythling, L.

Byers, L.

Taylor of Gryfe, L.

Champion, L.

Maelor, L.

Taylor of Mansfield, L.

Collison, L.

Morris of Kenwood, L.

Thurso, V.

Davies of Leek, L.

Phillips, Bs.

Wells-Pestell, L.

Delacourt-Smith, L.

Platt, L.

White, Bs.

Diamond, L.

Plummer, Bs.

Winterbottom, L.

Donaldson of Kingsbridge, L.

Popplewell, L.

NOT-CONTENTS

Aberdare, L.

Exeter, M.

Mancroft, L.

Ailwyn, L.

Falkland, V.

Massereene and Ferrard, V.

Amherst of Hackney, L.

Ferrers, E. [Tellers.]

Mersey, V.

Balfour, E.

Ferrier, L.

Mowbray and Stourton, L.

Barnby, L.

Fisher, L.

Moyne, L.

Bathurst, E.

Fortescue, E.

Napier and Ettrick, L.

Beauchamp, E.

Gisborough, L

Nugent of Guildford, L.

Belhaven and Stenton, L.

Goschen, V. [Teller.]

Penrhyn, L.

Belstead, L.

Gowrie, E.

Rankeillour, L.

Berkeley, Bs.

Gray, L.

Reading, M.

Brabazon of Tara, L.

Grenfell, L.

Rochdale, V.

Caldecote, V.

Hailes, L.

St. Aldwyn, E

Clinton, L.

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

St. Just, L.

Colville of Culross, V.

St. Oswald, L

Conesford, L.

Hanworth, V.

Sandford, L.

Cork and Orrery, E.

Harcourt, V.

Sandys, L.

Cottesloe, L.

Harvey of Tasburgh, L.

Selsdon, L.

Craigavon, V.

Hatherton, L.

Sempill, Ly.

Cranbrook, E.

Hives, L.

Somers, L.

Croft, L.

Hood, V.

Strange, L

Cromartie, E.

Ilford, L.

Strathcona and Mount Royal, L.

Cullen of Ashbourne, L.

Inchyra, L

Daventry, V.

Inglewood, L.

Sudeley, L.

De Clifford, L.

Jellicoe, E. (L. Privy Seal.)

Suffield, L.

Denham, L.

Kemsley, V.

Teviot, L.

Derwent, L.

Killearn, L.

Thorneycroft, L.

Drumalbyn, L.

Kinnoull, E.

Tweedsmuir, L.

Ebbisham, L.

Lansdowne, M.

Verulam, E.

Eccles, V.

Lauderdale, E.

Vivian, L.

Effingham, E.

Lucas of Chilworth, L.

Windlesham, L.

Elliot of Harwood, Bs.

Lyell, L.

Resolved in the negative, and Amendment disagreed to accordingly.

10.20 p.m.
LORD STOW HILL: I beg to move Amendment No. 188A standing in my name.
Amendment moved—
Page 127, line 39, at end insert—
(".Where an approved closed shop agreement has been made or an interim order has been made under paragraph 28 hereof in relation to an agreement in any trade or industry or section of a trade or industry and the parties to that agreement are an employers association or organisation of employers and a trade union or trade unions and represent a substantial proportion of the employers and of the workers respectively in that trade or industry or section of a trade or industry such closed shop agreement shall be binding on every employer in such trade or industry or section of such trade or industry as the case may be as if such employer were a party to such agreement:")— (Lord Stow Hill.)
THE DEPUTY CHAIRMAN OF COMMITTEES (VISCOUNT HOOD): The Question is, That Amendment No. 188A be agreed to. Tellers for the Contents have not been appointed and, pursuant to Standing Order No. 48, a Division therefore cannot take place, and I declare that the Not-Contents have it.
Amendment negatived accordingly.
LORD BELSTEAD LORD BELSTEAD moved Amendment No. 189:
Page 127, line 40, leave out from ("Schedule") to ("charity") in line 41.
The noble Lord said: The Committee agreed to Amendment No. 104 to Clause 16, which made the definition of an approved closed shop agreement applicable throughout the Bill and not merely to Clause 16. Therefore, there is no need for the reference in this Schedule to the definition, and in the interests of brevity in the text I beg to move.
BARONESS WHITE: We are happy once more to accept anything which will shorten this already overlong Bill.
On Question, Amendment agreed to.
LORD HENLEY LORD HENLEY moved Amendment No. 191A:
Page 127, line 42, at end insert—
(".Where immediately prior to the coming into operation of this Act there is in operation a closed shop agreement made between one or more trade unions and one or more employers or an employers association or organisation of employers either party or both jointly may make an application to the Industrial Court for an interim order. The Industrial
1336
Court shall forthwith refer the application to the Commission for examination by them. Upon such reference the Commission shall consider whether it appears to them that a prima facie case has been established that the conditions described in paragraphs 5(1) and (2) of Part 1 of this Schedule exist and shall report their conclusions to the Industrial Court.
If the Commission is not satisfied that such a prima facie case has been established then the Commission shall indicate that fact, and in that case the Industrial Court shall not proceed further with that application.
If the Commission is satisfied that such a prima facie case has been established, it shall so report to the Industrial Court and the Industrial Court may make an interim order. Such order shall provide that the agreement in respect of which the application was made shall continue in full force and effect until such interim order expires. Such interim order shall expire at the end of one year unless by that date a joint application has been made by the same parties under paragraph 1 hereof. If by that date such an application has been made the interim order shall continue in force so long as the application is before the Industrial Court, and thereafter for any further period not exceeding one year for which the Industrial Court may extent such order on an application being made to the Court for such extension.")
The noble Lord said: We discussed this Amendment at great length in the early hours of yesterday morning and voted on it and I do not think there is much more to be said about it, but I hope the Government will bear in mind that there are great difficulties with regard to Equity in the interim period. There are something like twenty associations of employers in the theatrical industry and all these have to be consulted by the union before agreement can be reached. With a small union like Equity, this is a task of some considerable difficulty. Furthermore, a problem is raised by the withdrawal of Amendment 140A about agency shops. The noble Lord is under the impression, I think wrongly so, that the agency shop can cope with all the difficulties Equity are facing in this respect. This is simply not so. I do not know what noble Lords on the Labour Benches wish to do, but some argument ought to be put forward on this point, and that is why I beg to move.
LORD DRUMALBYN: I was under the impression, when the noble Lord, Lord Stow Hill, introduced Amendment No. 142A, that he did so as a paving Amendment to this one. As we discussed the two together, it would be repetitious to discuss this Amendment all over again. If

1337
noble Lords wish simply to vote on it, that would be perfectly in order, but I do not think that we should go all over it again.
BARONESS WHITE: With respect, I think that we ought to have some further discussion on it, not only because it is extremely important but because, when we withdrew the other Amendment in the early hours, the noble Lord indicated that he would have something further to announce about this difficulty and we should like to know if his thoughts have gone any further. The other important reason why we should discuss it is that while a great deal has been said about Equity, very little has been said about the Seamen's Union, and it seems to me that we ought to clear our minds about the position of the seamen. The point at issue is that there is an existing closed shop agreement in both the entertainment and the seafaring worlds, and some arrangement should be made for these agreements to he continued for the interim period so that they will not become illegal, as we understand they would under the Bill as it is now, until all the procedure had been satisfactorily completed as set out in Clause 16 and Schedule 1. This is a very real difficulty.
We discussed Equity in some detail, but I should like to draw the attention of the Government to the position of the seamen, because in some respects it is even more important that we do not have a chaotic situation in the shipping industry than it is in the entertainment world. The difficulties of organising all the sailors in the Merchant Navy are stupendous. One needs little imagination to grasp that fact. To organise a floating population, in every possible sense of that word, is a great strain on the union, involving every kind of practical difficulty. From an outline of the steps which have to be gone through in order to establish a closed shop under this Bill, your Lordships will appreciate why we are so much concerned about what could happen in the interim period, which can be quite a long one. Not only does one have to make one's application to the Industrial Court in the first place, but one then has to await the outcome of the examination of the situation in the industry by the Commission on Industrial Relations; and they have to go through all the conditions that we discussed earlier
1338
—the four conditions (a), (b), (c) and (d) — which would undoubtedly take a certain time. Even if they came rapidly to the conclusion that, so far as seamen are concerned, the agency shop was neither here nor there and a closed shop was really the only intelligent way to organise this particular occupation, then one has this business of the ballot. One has to allow not less than one month before the ballot is to be held—it could be three months, but assuming the shortest period of one month is adopted —and as I think my noble friend Lord Blyton said, although I did not have the pleasure of hearing him, the experience of the National Union of Seamen (which takes a ballot once every two years for the election of their Executive Council) is that the shortest time in which you can conduct such a ballot—and it is simply voting for a certain number of names, and no more complicated than that—is 15 weeks. In other words, you have one month; you have all the preliminaries, and the C.I.R. investigation and so on; and then you have a minimum period of one month for the ballot to be declared unnecessary. Then you have a minimum of 3½ months for the ballot to he taken. The problem of getting anything approaching one-fifth of the members to initiate the ballot in the first place, to make it an effective ballot, to use the words which the noble Lord has now inserted into the Schedule, is almost insuperable and when one has done that, to have any hope of getting 51 per cent. of those eligible to vote—not just those who actually vote—is virtually impossible.
That is another reason why I used the word "bogus" about this whole procedure in Clause 16 and this Schedule. If one examines and analyses it in practical terms, and takes into account all the real difficulties with which those persons are faced who genuinely believe on both sides that a closed shop is absolutely essential—and for seamen it is not only necessary from their own industrial point of view, but also for safety that you should have some control over the people who go to sea in ships—we feel that this particular point, which is concerned not with the whole question, but with the interim arrangements, is one of considerable substance.
We discussed this in the early hours of Wednesday morning, and if I may be allowed to quote the words of the noble

1339
Lord, Lord Drumalbyn, he recognised that there was a difficulty. He said that,
"there should not be a hiatus".
He then said, not perhaps quite so elegantly as he might—it was of course very early in the morning—
"The question is a hiatus between what."
He then went on a few sentences further on to say:
"The hiatus is unlikely to arise "—
I cannot see a hiatus arising; but still—
"but we are looking at the possibility."
These, however, are the operative words:
"We expect to be able to take such measures that will ensure that it would be unlikely to arise in any particular case."
How it could arise in any unparticular case, I do not know. He then continued:
"I cannot announce details of those measures now."
But he thanked us for giving him the opportunity. Well, I am giving him another opportunity. If, as seems clear from these words— and one can put no other construction on them—the Government realise that there is a genuine problem here, and they are thinking about it, it is only right that they should take us further into their confidence and give us some idea as to the lines on which they are thinking, and the practical steps they will be able to take to overcome what they must recognise as a genuine and serious difficulty.
LORD DAVIES OF LEEK: I hope that the noble Lord will pay some attention to this matter. Here is the opportunity—no matter in what context he used the word "hiatus"; I can use the word "lacuna"—to deal with this. The main purpose of this Amendment is to do something to ensure that arrangements will not fall down in this transition period. In the case of seamen you could have maverick ship owners; in the case of theatrical companies you could have maverick pantomime companies. In the transition period people could come into the cast, despite Equity's castings agreements. So far as the seamen are concerned, there could be different means of recruitment. If the Government are not accepting this Amendment, I hope that they will give a concrete, crystal clear reason why they cannot find a formula to accept at least the spirit of the Amendment.
10.37 p.m.
LORD DRUMALBYN: I am afraid that I have not armed myself with any of the noble Baroness's speeches so I will have to deal with her "sally" as best I can. Inevitably between the passage of this Bill and the coming into operation of the provisions we are talking about, a considerable number of months will elapse. What I said last night (in perhaps one of my more lucid moments!) was that when the Act comes into operation, and even before, agency shops will be negotiated. Indeed I will go further—they have been negotiated already.
The first stage for anybody with a closed shop is for themselves to see whether the agency shop will suit them. There is no great difficulty in the transition from a closed shop to an agency shop if it suits them. In the cases where the employee and the union both agree that it is necessary to have a closed shop, an application will be made. I appreciate what the noble Baroness says about the time that it may take for the union to carry out a ballot, although I was greatly encouraged by what my noble friend Lord Balfour has said about the way this was dealt with in New Zealand, on ship, the results being transmitted by radio, and so on. It is right for noble Lords to understand that this is something which has been taken into consideration. I was trying to indicate that it is still being examined to make certain that there will be no hiatus or lacune, or anything of that sort. We realise the importance of this and we have not introduced Clause 16 and the Schedule for nothing. We have done it because of representations that have been made, and a very deliberate attempt has been made to make this a reasonable set of conditions which the unions should be able to meet if it is really necessary for them and if they cannot fit themselves into an agency shop arrangement.
Seriously, I think noble Lords would do well not to press this Amendment. In any case, we could not accept it if only because, as they know, we are opposed to the idea of either party, or both jointly, breaching the application. For that, among other reasons, we could not accept this Amendment; also, because we really do not think that this question of a hiatus will in fact arise. As I say, we are studying the matter

1341
very closely from the point of view of the phasing of the bringing into operation of the Bill so that this kind of hiatus will not arise. I hope that at any rate I have gone some way towards satisfying the noble Baroness. As I say we could not in any case accept the noble Lord's proposal in this Amendment, so I hope that in the circumstances he will not press it to a Division. I personally welcome this further discussion because I think we have given a great deal of attention to Equity and not enough to the seamen, and I am very glad that the noble Baroness raised this point at this stage.
THE EARL OF BALFOUR: I should like just to clear up one point. My noble friend, Lord Drumalbyn, said that the voting was carried out and the results were sent by radio. I am sorry, I must correct that. I was a little tired on Tuesday night; I had come off a night sleeper and was rather tired. The way it was
done was that each person put his vote in an envelope, and the envelopes were sent back to the union headquarters by air. That method was very successful.
LORD HENLEY: I do not feel inclined to withdraw this Amendment. I know we debated this question at great length on Tuesday and have done so again to-day, but I still feel that the Government have not appreciated the problems involved. They do not apply only to Equity; they apply over quite a large number of unions both large and small. I hope that someone will have something to say to this on the Question, Whether Schedule 1 shall stand part? I must divide the Committee.
10.43 p.m.
On Question, Whether the said Amendment (No. 191A) shall be agreed to?
Their Lordships divided: Contents 48; Not-Contents, 88.

CONTENTS

Archibald, L.

Delacourt-Smith, L.

Platt, L.

Ardwick, L.

Diamond, L.

Plummer, Bs.

Balogh, L.

Donaldson of Kingsbridge, L.

Popplewell, L.

Barrington, V.

Evans of Hungershall, L.

Ritchie-Calder, L.

Bernstein, L.

Gaitskell, Bs.

Sainsbury, L.

Beswick, L.

Gardiner, L.

Samuel, V.

Birk, Bs.

Garnsworthy, L. [Teller.]

Serota, Bs.

Blyton, L.

Greenwood of Rossendale, L.

Shackleton, L.

Brockway, L.

Henley, L. [Teller.]

Stow Hill, L.

Brown, L.

Hoy, L.

Strabolgi, L.

Burntwood, L.

Janner, L.

Swaythling, L.

Byers, L.

Lee of Asheridge, Bs.

Taylor of Mansfield, L.

Chalfont, L.

Lindgren, L.

Thurso, V.

Champion, L.

Llewelyn-Davies of Hastoe, Bs.

Wells-Pestell, L.

Collison, L.

Morris of Kenwood, L.

White, Bs.

Davies of Leek, L.

Phillips, Bs.

Winterbottom, L.

NOT-CONTENTS

Aberdare, L.

Derwent, L.

Harvey of Tasburgh, L.

Ailwyn, L.

Drumalbyn, L.

Hatherton, L.

Amherst of Hackney, L.

Dudley, E.

Hives, L.

Balfour, E.

Ebbisham, L.

Ilford, L.

Barnby, L.

Eccles, V.

Inchyra, L.

Bathurst, E.

Effingham, E.

Inglewood, L.

Belhaven and Stenton, L.

Elliot of Harwood, Bs.

Jellicoe, E. (L. Privy Seal.)

Belstead, L.

Exeter, M.

Kemsley, V.

Berkeley, Bs.

Falkland, V.

Killearn, L.

Brabazon of Tara, L.

Ferrers, E. [Teller.]

Kinnoull, E.

Clinton, L.

Ferrier, L.

Lansdowne, M.

Colville of Culross, V.

Fisher, L.

Lauderdale, E.

Conesford, L.

Fortescue, E.

Lucas of Chilworth, L.

Cork and Orrery, E.

Gisborough, L.

Lyell, L.

Cottesloe, L.

Goschen, V. [Teller.]

Mancroft, L.

Craigavon, V.

Gowrie, E.

Massereene and Ferrard, V.

Cranbrook, E.

Gray, L.

Mersey, V.

Croft, L.

Grenfell, L.

Mowbray and Stourton, L.

Cromartie, E.

Hailes, L.

Moyne, L.

Cullen of Ashbourne, L.

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

Napier and Ettrick, L.

Daventry, V.

Nugent of Guildford, L.

De Clifford, L.

Hanworth, V.

Penrhyn, L.

Denham, L.

Harcourt, V.

Rankeillour, L.

Reading, M.

Sempill, Ly.

Sudeley, L.

St. Aldwyn, E.

Shannon, E.

Suffield, L.

St. Just, L.

Somers, L.

Teviot, L.

St. Oswald, L.

Stamp, L.

Thorneycroft, L.

Sandford, L.

Strange, L.

Tweedsmuir, L.

Sandys, L.

Strathcona and Mount Royal, L.

Vivian, L.

Selsdon, L.

Windlesham, L.

On Question, Clause 20 agreed to.

On Question, Whether Schedule 1, as amended, shall be agreed to?
10.51 p.m.
LORD DELACOURT-SMITH: There still remain one or two points which I should like to put to the noble Lord in the light of the discussions upon this Schedule. I wonder whether he could say a little more about the point he touched upon when he last spoke to the Committee about the arrangements for bringing into effect the different sections and provisions of the Bill. As I understood him on an earlier occasion—and he argued that this was logical and unavoidable—the first step would be to bring into effect the parts of the Statute which establish what he described as the infrastructure: the N.I.R.C., the industrial tribunals and the other pieces of machinery. But lie said this evening that in fact it would be possible, before the Schedule we are discussing is brought into effect, for agency shops to be established. Are we to understand that he was referring exclusively to agency shops under Clause 10(1)?
LORD DRUMALBYN: Yes.
LORD DELACOURT-SMITH: That is to say, those established on a voluntary basis. I find it difficult to see how what he said could conceivably apply to agency shops established under subsection (2). If there is a limitation, it would only be practicable in the case of those industries where it was possible to proceed on an entirely voluntary basis. I am sure he will appreciate that this could be difficult in cases of industries which were fairly closely knit, where there was a good deal of movement from one employer to another and where the majority of employers might be quite keen to establish an agency shop, but where there might be difficulty because a minority—and perhaps a small minority—of employers might be reluctant. They could go a long way towards frustrating action under Clause 10(1) which the majority of the
1344
industry might wish to undertake. Would the noble Lord comment upon that?
The second point I should like to raise concerns the arrangements for the taking of ballots in Part 2 of this Schedule. I must confess that this is not clear to me, although it may be clear to others; and perhaps the noble Lord would explain it. As I understand it, the Government are arguing that the arrangements proposed in this Schedule provide the answer to the anxieties which have been expressed in a number of cases, and particularly in the cases of the theatrical profession and the Merchant Navy. The question which puzzles me is this: in the event of ballot being taken under Part 2 of the Schedule for the approval of an agreement, who exactly is going to be entitled to vote—which workers are going to be entitled to vote?
Under subparagraph (2) of paragraph 9 of the Schedule "the relevant workers "means those workers who, on the date of the application, are workers to whom the proposed agreement would apply if it were made on that date. On any date in some of the industries which we are considering—and let us take the Merchant Navy as an example—there will of course be a considerable number of workers who are in the employment of a variety of employers, but there will equally be a considerable number of workers who will in fact not be in the employment of any employer at that date, because, after all, one of the arguments which has been advanced in respect of these occupations where we feel there are particular difficulties is that there is a considerable fringe of workers who are in fact at any given date out of employment; not in the employ of any employer.
I must confess that I do not understand exactly how, for the purposes of a ballot, one is going to define—how the Commission is going to define—some of the occupational areas in respect of which application under this Schedule may be put forward. Those are the two difficulties that I have. I think the noble Lord, with the assent that he has given to a

1345
number of my points about the first question on the arrangements for bringing the various provisions of the Bill into effect, has gone some way towards answering my questions, and I should be grateful if he could amplify a little and also deal with the second point that I have raised.
LORD DRUMALBYN: On the first point of the agency shop, the noble Lord is entirely right. Obviously, until the powers are brought into operation agency shops can be formed only by voluntary agreement. I think perhaps in his comments lie was overlooking the fact, which I dealt with on a previous occasion, that an agency shop may be of many different kinds. It may relate to a part of a plant, it may relate to a plant, it may relate to several employers, a group of employers, and it can be right across the board in industry.
On the subject of the ballot, if the noble Lord will look at paragraph 11(2) of the Schedule I think he will find an answer to his question. It says:
"The persons eligible to vote in the ballot shall be the workers who, on a date specified by the Commission in making arrangements for the ballot, are workers to whom the proposed agreement would apply."
I do not think there is any real difficulty there.
LORD DELACOURT-SMITH: I am sorry, but I find some difficulty about it. I had noticed this. How in fact is the theatrical profession to be defined? Or how in fact are merchant seamen to be defined? Will they be defined in terms of those who, at some stage — say during the preceding 12 months—have had employment in these fields respectively? In that event, how will they be identified; or are they going to be identified in terms of membership of the relevant union?
THE LORD CHANCELLOR: May I draw the noble Lord's attention to one factor which I do not think he has taken into account? It does not wholly answer all his points, but I think it answers part of the question which he has just put. The word "worker", where it appears in the Bill, is covered by the definition clause in the Bill, and that covers not merely those who are at the moment unemployed, but those who normally work or who seek to work in the industry. Obviously, there may be a
1346
question about identification, but membership of a union in the case of seamen or Equity would be absolutely conclusive, I should have thought, that they were normally seeking to work in the industry concerned. It is conceivable that there might be some outside, but in those particular cases you start with an existing closed shop, and the result is that the union would be almost certainly practically, if not exactly, 100 per cent. of the relevant workers, given the application of the definition clause, to which I have drawn the attention of the noble Lord. I hope he finds that explanation helpful.
LORD DELACOURT-SMITH: I do, indeed, find it very helpful. Would it then.be fair to say that generally speaking one might expect that in occupations of this sort the persons eligible under paragraph 11(2) of Schedule I are likely to be in fact co-terminous with the membership of the union?
THE LORD CHANCELLOR: That must be so, in the nature of the things. I think that, in a good deal of these discussions we have been having, the Committee has sometimes lost sight of the fact that if you start with a closed shop you start with 100 per cent. membership virtually intact, and a crisis would develop only rather slowly as the 100 per cent. membership dropped off. Assuming an application were made timously, the problem of identification in the light of the definition section would I think he much smaller than one would think theoretically was the case.
LORD DELACOURT-SMITH: I am sorry to keep coming back, but I am not sure that the earlier point I made has been fully covered. That was the problem which can arise, that one is under the obligation, at the time of which we are speaking, of proceeding exclusively under Clause 10(1). Is there not a possibility of real difficulty in a situation in which the majority of the employers are very happy to proceed with the organisation of a comprehensive agency shop agreement, but that the whole progress is frustrated by possibly quite a small minority of employers who may not be so disposed?
LORD DRUMALBYN: I see the difficulty, bat I think it is not easy to generalise about a difficulty of this kind.

1347
Obviously in an employers' association they do not necessarily work by unanimity. On the other hand it is always possible that somebody who disagrees violently may leave the association. One has to accept these permutations. Therefore I really could not generalise on that position. But so far as the particular plants, the particular companies, with with their subsidiaries, are concerned, there at any rate I can see no difficulty at all with the changeover. There may be some areas where difficulties arise—it would be stupid to pretend that there will not be—in changes of this kind. But we do not visualise that the difficulties will be very great, and all the evidence we have at the moment is that the agency shop is commending itself to employers as quite a good solution, and indeed more and more to trades unions.
LORD DELACOURT-SMITH: I should be interested if at some time the noble Lord could give the evidence for that last statement. I will not press him further on it at the moment.
LORD HENLEY: Before we leave Clause 16, Schedule 1, which we have been debating since Thursday, may I fire a ranging shot across the Government's bows? The Government—and this is very much to their credit—after long debate in another place, decided that something ought to be done about closed shops, closed shops which were reputable and desirable, and they introduced Clause 16 and Schedule No. 1. It appears to me, after about three days' debate, that the Government privately are aware of the fact that it is conceivable that they may be wrong on some of the judgments they have taken on this matter. I was rather hopeful last night; I felt the Government were showing signs that they have recognised that there is a problem here and they really would look into it. One of the things that encouraged me was what the noble Lord, Lord Drumalbyn, said yesterday morning: that the Government would certainly be ready to consider whether some special, even statutory, provisions should be made to meet the problems which it is suggested may arise. Later on he said:
"Let experience of the operation of the Bill decide whether a further special solution is necessary".
1348
The ranging shot that I want to fire is this; on Thursday afternoon my noble friends introduced an Amendment, the purpose of which was to try to give some flexibility to the Minister, so that if something went wrong he could put it right rather more quickly than is likely if we have to go into the whole question of new legislation. The Government rejected this, and I can quite understand their point. They did not want to put powers into the hands of the Secretary of State which they felt were unsuitable powers for him to have.
I wonder whether they would look at this point again, because it seems to me that there are real dangers. We have been talking about the hiatus, this interim period. The Government feel that we need not be frightened and that it will solve itself. They may be right, but if they are wrong very serious damage may be done to unions which have operated for many years on a basis of which we approve. That damage—I will not say irreparable damage, but it may be such that it is extremely difficult to put right—can only be put right at great cost to all of us. Will the Government have a look at the whole problem, to see whether they can think of a device by which if anything goes wrong—and I expect the Government are aware of the fact that something might go wrong—they can put it right rather more quickly than by the ordinary process of legislation?
11.7 p.m.
THE LORD CHANCELLOR: I wonder whether I might fire a ranging shot into the noble Lord's stern? We will, of course, consider what he has said, but I feel that he has underestimated the strength of what my noble friend was saying about the commencement clause, Clause 160. The Bill is not due to come into operation on Royal Assent; there is a commencement date, and indeed there may be several commencement dates. When he asks for flexibility, I believe that he has underestimated the flexibility which is there. Take this problem that we have made such a meal of, the closed shop, and the approved closed shops in relation to industries or factories where closed shops at present exist. Our hope is that they may be converted into agency shops, and my noble friend has made out the case as to why that is not very difficult. In two particular cases which have

1349
been named it is thought that this is unlikely to happen; namely, the seamen and Equity. I only point this out to the noble Lord for him to consider before we debate this subject again, if we do, that when the Bill receives the Royal Assent, the provisions which render void the existing closed shop and the present arrangements are not in force until they are brought into force. Between the time when the Bill passes and the time when they are brought into force there is a great deal of room for flexibility; either for negotiation with the Government, or for setting up the apparatus (if that is the right word) for an application to the Industrial Court for an approved closed shop.
Noble Lords opposite talked about the number of employers' associations in one of the two trades, and of the number of employers in the other. There is time; and I hope that, despite the strength with which this whole subject has been debated, the Opposition and the unions will not run away with the idea that we are unwilling to discuss the operation and commencement of the Act in the light of realism here. Obviously we are not going to try to delay them, and we should be rather resistant to delaying them, but clearly they do not come into operation straight away. It may well be that, on reflection, the noble Lord will feel that the device which he has asked for at any rate in part exists, assuming that both sides are reasonable in their application of the commencement provisions. I do not necessarily promise that, but it seems to me that the draftsmen's device may be the best of all.
LORD HENLEY: I am perfectly ready to accept that. It may well be that this is how it will go. On the other hand, it may well he that it will not. There are practical problems. You may have a small union with fewer than half a dozen officers, and employers of ten times that number, some of whom are not members of any organisation. The mere physical fact of negotiating with all of these people is a formidable one and it may be almost impossible to do it. I agree that with good will one can do almost anything whatever the law is, and that without it matters can be very difficult. But having said that, I think my noble friend will probably want to consider the possibility of putting down an Amendment along
1350
those lines. I hope it will not be too repetitious of what we put down earlier, and I hope the Government will consider that it may be in their own interests to think up a device of this kind.
BARONESS WHITE: Without wishing in any way to prejudice the proposal which the noble Lord would like to put forward later, I wonder whether between now arid Report stage the Government could help us by letting us have, on an informal basis, a piece of paper setting out in what order they would bring in the various sections of this Bill, so as to overcome the hiatus problem. That would help us very much indeed.
LORD DELACOURT-SMITH: Following up my noble friend's suggestion, which is an excellent one, I wonder whether it would be better to go a little further and make not an informal communication to this side of the House, but a considered statement on this matter. There are many people in industry who, in good' faith, have assumed that the full provisions of the Bill would, in the Government's expectation, come into effect on the day of the Royal Assent.
LORD DRUMALBYN: That is not so.
LORD DELACOURT-SMITH: I appreciate that answer, and those who have given very close study, who have managed to labour as far as Clause 160 will know that. But there are many people who, in good faith, have gone a good way to assimilating the proposals in this very complicated Bill, but have not appreciated this point. It would be extremely valuable if my noble friend's suggestion could be followed up, and perhaps carried a little further.
LORD DRUMALBYN: I take the point that the noble Baroness and the noble Lord have made. Perhaps they would be good enough to leave this with me. I should not like to enter into an undertaking, but I am sure that we shall be able to help the Committee in some way or other. But I doubt whether we should be able to give the full information the noble Lord wants, because it is important to retain flexibility and not tie dawn the dates. All the experience of the past indicates that, when you are bringing in a Bill at various stages, you want to make certain that you are ready for the text stage before you bring it in

1351
So I hope the noble Lord will not expect too much of us. But generally we shall try to help the Committee as far as we can.
Schedule 1, as amended, agreed to.
Clause 17 [Minimum periods of notice to terminate contracts of employment]:
On Question, Whether Clause 17 shall stand part of the Bill?
BARONESS WHITE: We now start upon what is a completely new Industrial Relations Bill. We have moved away from all the subjects which we have been discussing, to deal with the Contracts of Employment Act 1963, and we must therefore adjust our minds. Unfortunately, this means that this section of the Bill is one of those tiresome things—legislation by reference to some other Statute. However, as far as Clause 17 is concerned, we have put down no Amendments to this clause and that, of course, is for the very good reason that it repeats, I think in precisely the same terms, what was Clause 62 in the Bill published by the last Administration. This, therefore, I think, is the first clause in this Bill which brings us unalloyed satisfaction. It does so because it is designed to strengthen the sections in the Contracts of Employment Act 1963 which are referred to, in the sense that it decreases the period of employment which conditions the notice which has to be given to terminate contracts. The various periods are set out quite plainly in this clause, and we are very glad that in this respect, at least, the Government have been prepared to follow the admirable example of their predecessors.
EARL JELLICOE: I should just like to echo what the noble Baroness has said, and to confirm she is quite right: it does repeat in terms what was in the previous Administration's Bill. She is also right in her supposition that it was a repetition of Clause 62 of that Bill. All I should like to say is that it gives me unalloyed satisfaction to hear that this clause gives her unalloyed satisfaction.
Clause 17 agreed to.
Clause 18 [Written particulars of terms of employment]:
11.17 p.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 192.
Page 15, line 12, after ("shall") insert 1 "be written in full and given to each individual employee and shall")
The noble Baroness said: I beg to move the Amendment standing in the name of my noble friends. This is really a quite straightforward Amendment. We are concerned to make quite sure that any employee actually receives and is actually given individually the statement which is required under this clause, because although I think this was the intention of earlier legislation, I am advised that in practice it has not really happened and that workers who supposed that they were going to get full information as to their terms and conditions of employment did not get it in this direct and individual form which seems to us to be desirable. I know that this means a certain amount of work for the employers; we recognise that. On the other hand, in this legislation we are accepting a principle, or are repeating a principle, which is that each and every person, when he is taken into employment, within a certain period should receive the full details to which he is entitled. I think a good deal of play was made about this by at any rate certain Conservative candidates in their Election speeches, and so by putting down this Amendment we are giving the Government an opportunity to fulfil their pledges. We hope very much, therefore, that they will accept the Amendment.
I think I am correct in saying that the Contracts of Employment Act 1963 was the first legislation which made it obligatory on employers to see that their employees knew what their terms of employment were. We have been told that it has not worked entirely well in practice. Merely to make terms of employment available somewhere in general does not seem to us to be adequate. One knows what happens in factories: something gets put on to a notice board, then it gets covered up with other notices and so on. It can be very important that the individual employee knows exactly what he is entitled to. We are glad that in the first subsection the provisions about holidays and holiday pay are fully spelt out because in earlier

1353
legislation this was only briefly referred to. This is a considerable improvement. I think it is taken from the Labour Government's Bill; because we felt that in practice the rather general reference to holidays and holiday pay in the Contracts of Employment Act 1963 had not been adequate; there had been areas of disagreement. Now that information has to be given in such a form, if the need arises it can be precisely calculated. This we entirely support. But I think that all this information about holidays, about sick pay, about notice required to terminate employment and so on should be given to each individual employee. I beg to move.
11.22 p.m.
LORD WELLS-PESTELL: I hope that the Government will feel able to accept this Amendment. We on this side and, I think it is true to say, noble Lords on the other side are concerned to estalish the best possible relationship in industry at the present time. It may be that we have a different approach in seeking to establish this but I do not think that anyone can deny that it is of supreme and paramount importance. I think it is important that an employee should have a full, clear and precise written statement concerning the conditions and terms of his employment. As my noble friend, Lady White, has said, this was supposed to have been achieved by the Contracts of Employment Act 1963. I believe that when Parliament passed that Act we were under the impression that it would be achieved. But from the amount of litigation since then, many of us know that it is far from being established. Therefore I would ask the Government to accept this. I believe that a good many Members of their own Party in the other place paid more than lip service when they said that this is not only desirable but essential. I believe it would make for better relations in the future if it could be done.
LORD BROWN: This Amendment may be rather more important than it seems. I should like to support it, not because of its precise legal impact but because it will be a stimulus to writing. The anthropologist when exploring society, often simple society, uses the word "primitive" in a special sense. He
1354
means a society that do not write its customs and practices. In this sense, industry is extraordinarily primitive. When we hear stories of workpeople who fail to act in accordance with the agreements which have been reached on their behalf, it is more often than not due to the fact that they do not know what has been agreed to on their behalf. But when their duties and the policies which have been agreed between management and tile shop stewards are committed to writing and made available to employees, you begin to produce an atmosphere of greater certainty for everyone. They know more clearly where they stand. Managers know within what policies they may make decisions, and employees know that managers are no longer arbitrary people who can make any decision they like. All this is opening up a big subject which I do not intend to pursue. If, by the inclusion of this Amendment, the managements of companies are stimulated to a greater extent to write what is agreed upon, and to write out the duties of employees and the limitations on managerial action, great good can be done. These words may start a process which will lead to procedures being written properly.
11.25 p.m.
EARL JELLICOE: I find myself in considerable agreement with the sentiments expressed by the noble Baroness, Lady White, who referred to the need for clarity and definition, and also with what was said by the noble Lord, Lord Wells-Pestell, who spoke about better relations. I do not think it would be right to claim virtue on one side of the Committee or the other. We are all seeking the same thing, sometimes by the same method and sometimes by a different approach. I am in considerable agreement with what was said by the noble Lord. Lord Brown. I echo his plea for better, clearer and cleaner procedures; for the spelling out of these things and for the need for management to take the trouble to see that people know what are their rights and how they may go about getting a grievance put right.
There is a technicality which I should like to point out regarding the Amendment. It bites cleanly on Section 4(1) of the Contracts of Employment Act 1963. If noble Lords will look at subsection (l)

1355
they will see that that it refers to a new employee. It is clear that the effect of Clause 18 of the Bill, read in conjunction with Section 4(1) of the Contracts of Employment Act, is that every employee entering a new employment must get a written statement. This statement should include all the new matters to which the noble Baroness referred and other matters covered in this part of the Bill, which would include the effect of the agency shop agreement, grievance procedures and the rest of it. What the Amendment seeks to do is done already, in this Bill and under existing legislation. I am not saying that all this happens in practice. The requirement is definitely in the legislation and firmly embedded in this Bill.
I had assumed, however, when I looked at this Amendment, that its aim was to provide that every existing employee who had already received a written statement should also receive and be able to retain a personal copy of the additional particulars which his employers are required to give him under subsection (2) of this clause. If that is what noble Lords are anxious for, I think it may not be necessary or desirable. In the case of existing employees it is sufficient for the employer to notify the employee of the new particulars in accordance with Section 4(4) of the Contracts Act. This means that he has informed the employee in writing but need not leave a copy for the employee to keep, though he must make certain that the employee can readily refer to it at any future time. No more than the noble Baroness do I like the idea of an employee having to rely on some rather scruffy notice pinned up in an obscure and dark corner of a disordered notice board in order to ascertain precisely what his rights may be. I do not think any of us likes that idea.
I understand that Section 4(4) of the Contracts Act provides that employers must ensure that every employee is informed of the new particulars in writing. Many employers—I think that this would usually apply in large concerns—find it convenient to put a notice in every wage packet and that notice can be kept by the employee. This is the practice which, as I read the Amendment, the Opposition would like to make universal. It is not universal at present. I rather doubt whether it should be. Some employers
1356
find it more sensible to send round a circular—for example, in an office with white collar employees—on which the employees notify that they have seen it. I hope, therefore, that the noble Baroness will agree that the Amendment is unnecessary, since Section 4(4) of the Contracts Act already requires employers to make certain that every employee is properly informed of changes in the terms of his or her employment. But though I think it is important that everyone is informed in writing—and this is already in he Bill—how it is done is a matter where there should be a certain flexibility and discretion. But on the principle that each employee must be notified in writing of the particulars of his or her employment and of any change in those particulars, not least the changes which will come about as a result of the enactment of this legislation, I do not think there is anything between the two sides of the Committee.
LORD BURNTWOOD: I have listened carefully to what the noble Earl has said, and of course I support this Amendment in general principle. I hope that he will take into account the fact that it is a recurrent experience in personnel departments that there is a temptation on the part of the employer to incorporate in generalised notices small print which in many cases is utterly incomprehensible. References to other legislation and supporting documentation are conditions of these generalised notices which are unacceptable to the individual in the main. I am merely making a plea that if the Government could accept some sort of Amendment such as that put forward by my noble friend, they would take into account the problem of how important it is for the individual to understand what is put into these statements.
LORD BROWN: I shall not keep the Committee long, particularly because, strictly speaking, I am not talking to this Amendment. It is difficult to get certain aspects of the problem of industrial relations into this Bill, because it does not envisage them. The noble Earl, Lord Jellicoe, in talking about means of informing employees was talking about notices in pay packets and so on. What we have to face is that these industrial concerns are occupation societies which have internal legislation which covers all sorts of things that matter greatly to employees,

1357
such as overtime, night shifts, three-shift working, time off, sick leave and so on. There are policies governing all these things, whether they are written or not, although there is sometimes inconsistency between one department and another. What is really needed inside a particularly big industry is that the law book, if you like to call it that, which contains all the policies, is made available to every employee and is explained to every new employee when he arrives. This is what is desperately required in industry. Notices in pay packets are no doubt looked at and read and then possibly forgotten. You want a reference point for all these things to which people can go back, and then appeals will be judged in the light of these policies. This is what we are used to as citizens in society. What is wrong in industry is that we have not advanced to this elementary degree of sophistication. I know that I am not talking to the Amendment, but am merely trying to use the Amendment to get something on the record which I believe to be important.
BARONESS WHITE: We do not want to make too much of this, but I think it is an important point. We are advised by our trade union friends that although Parliament thought that it was providing in the Contract of Employment Act 1963 for all workers to be given a full statement as to conditions and so on, it has not worked adequately in practice. We are told that many employers provide the barest minimum of information to the individual, and it is not adequate. In view of what the noble Earl, Lord Jellicoe, has said, I am quite willing not to press this point at the moment and to have further consultations with some of our trade union colleagues to make quite certain of the precise points where the failure appears to lie. But that they are not satisfied with the position under the existing legislation seems to us quite plain, and that is why we put down the Amendment. Perhaps on that understanding I may have leave to withdraw the Amendment.
EARL JELLICOE: Before the noble Baroness withdraws the Amendment, I should like to respond. I cannot claim to be an expert in this area, but I have had a certain knowledge of industry from time to time. We all know that in large areas of industry the practices we should like to see, and which are followed in
1358
the best areas, are not followed to bring the standards up. I think I made the formal position clear in responding to the Amendment of the noble Baroness. It is certainly clear to me that the existing provisions of the Contracts of Employment Act specify quite clearly that any new employee should receive individually a full statement of the terms of employment, and that will include the new items covered by present legislation. If this is not working, we should try to find out why. It could be a defect in the legislation but it is more likely that the legislation is not being honoured; or perhaps it is a defect in administration.
I suggest that the noble Baroness should not only consult with her trade union friends; if, between now and the Report stage, she would like to come and talk about the practical problems, and if there is something which, as a result of these talks, we should do, I should not wish to preclude that. I am advised that is not necessary, and I do not wish to hold out any hopes, but I should like to extend an invitation to talk about this.
Amendment, by leave, withdrawn.
11.42 p.m.
EARL JELLICOE EARL JELLICOE
moved Amendment No. 194:
Page 15, line 16, after ("agreement") insert ("or art approved closed shop agreement").
The noble Earl said: This Amendment will make certain that employees are informed in the written statement given to them under the Contracts of Employment Act, and they will see such a statement irrespective of whether they are new employees being taken on by an employer for the first time, or old employees. We have debated Clause 16 and Schedule 1 at some slight length, and these cover the approved shop agreements. Your Lordships accepted both the clause and the schedule, and I do not wish to debate the substance of that again. Now the principle of the approved closed shop agreement has been approved by this Committee it becomes important that the notice to be given by employees should make clear the effects on their rights under Clause 5 of any approved closed shop agreement which may apply to them. This is the simple and sole purpose of the Amendment.
THE EARL OF LAUDERDALE THE EARL OF LAUDERDALE
moved Amendment No. 194A:
Page 15, line 18, leave out paragraphs (b) and (c) and insert—
("( b) either explaining the procedure available to the employee where he has a grievance relating to the employment to which the statement relates, or referring to a document which is reasonably accessible to the employee and which explains that procedure.").
The noble Earl said: This Amendment hears very much on the one which has just gone before, and may I recall to your Lordships the words of my noble friend, Lord Jellicoe, who said that we all want better, clearer and cleaner procedures. That is a sentiment that embraces the aspirations of both sides of this Committee. I am not sure whether it was my noble friend, or the noble Baroness, Lady White, who said that we want flexibility and discretion. Without going back unduly, the noble Lord. Lord Brown, seemed to want everything on paper; and I felt there was a fear of too much paper. The noble Lord, Lord Snow, obviously wanted whatever there is to be on paper to be intelligible.
EARL JELLICOE: The noble Lord. Lord Burntwood, I think my noble friend means.
LORD BURNTWOOD: I was about to observe that I did not see the noble Lord, Lord Snow, present.
THE EARL OF LAUDERDALE: I apologise for not recognising my old friends in their old shape, as young and zestful as ever.
This Amendment relates to a subsection which was initiated in another place but not in fact debated. This is therefore an opportunity for our Front Bench to explain what really is the inwardness of the subsection as we have it in front of us. Our own proposal to delete it and put in something simpler is an endeavour to simplify what is already, by general agreement on all sides of the Committee, a Bill of incredible complexity if not actually incomprehensibility.
What worries some of us is that not only large firms but also small—and it may be very small—firms are now required not only to have grievance procedures, which we all want, but also the sheer bumbledom and extra paper work of giving each worker a written statement in detail. This
1360
may be simple enough where things are sent around on a Roneoed circular, although whether a Roneoed circular quite serves the purpose is open to question. But the real difficulty that some of us find is that the statement must declare in detail and specify to whom it would seem, by name—no doubt we shall get clarification on that—the aggrieved worker shall resort. In point of fact, the aggrieved worker will go, as he is accustomed to going, to his shop steward or foreman or the deputy foreman anyway, and so one may well ask why this extra paper is going to be necessary. It is one thing to impose on an employer a statutory duty to keep his employees informed t it is quite another to spell out in detail, and dot the t's and cross the t's, exactly how he shall do it in circumstances of endless variation.
All our Amendment seeks to do is to allow the employer to issue a note to each worker saying in effect where the necessary information can be found. It might be a notice board—and of course we accept the noble Baroness's point that notice boards are not necessarily an answer to every problem; we accept that. But there must surely be a simpler way in a small company than necessarily sending round what I would choose, with your Lordships' indulgence, to call "bumf".
In putting this subsection into the Bill in another place I am afraid the Government were falling victim to the legalist's temptation to allow the best to be the enemy of the good. Our Amendment is simply something that has the support of wide sections of industry. I make no secret of it that it was sparked off by the Confederation of British Industry—and that is a respectable source, in any event. All I would say is that I beg the Government to give this Amendment a fair wind, and the Committee to give it a fair hearing. I beg to move.
LORD BROWN: I should like to support this Amendment. The real, central meaning of the Amendment does not differ very greatly from the words in the Bill, because anything that can be done under the Amendment can be done under the words in Clause 18(2). Nevertheless, it is a clear exposition of what is required. What worries me about Clause 18(2) (b) is a slight implication that there is one person, and one person only—this is not necessarily so but this is how it may be

1361
read—to whom everybody must go to have the means of appealing against a decision to which he objects explained. In a company employing 20,000 or 30,000 people some managers might indeed specify a single person. However, this is not good. I would hope to see emerging out of the Amendment before us a procedure which would simply allow an employee who was the subject of a decision by his manager to which he objects, to inform his manager under the procedure that he wishes to appeal. That appeal should go up what I would refer to as the executive system until it gets to the chief executive. I have experience of these systems and they work. The Amendment makes that possible; whereas the Bill as it stands does not make the possibility of such a procedure so clear.
Before I sit down, I should like to quarrel a little with the noble Earl, Lord Lauderdale. He referred to my obsession for "bumf". Under his Amendment every new employee will have to have a note. Under what I am proposing every employee will be told on his induction period to refer to the book which contains all these things; and I can assure him from experience that what I am proposing involves a great deal less "bumf" than was implied by what he said.
THE EARL OF DUDLEY: I have read a number of accounts of the Battle of Jutland, and it is clear that the noble Earl's father conducted himself with great sang froid, but by all accounts there is a great grey battleship which appears out of the mist with all guns blazing and I think I am entitled to compare Amendment No. 194A to such an event. It could also be compared to the appearance of a victory on June 4 at Eton, because the stroke, the noble Viscount, Lord Amory, has fallen into the water, and the bow, the noble Lord, Lord Sinclair of Cleve, has also fallen into the water and the game has been left to the cox.
A NOBLE LORD: Casabianca.
THE EARL OF DUDLEY: Be that as it may, the boy is on the burning deck, and I think those of us who support this Amendment are entitled to point out that it is not a reasonable proposition to suggest that a worker should go forward and personalise his complaint in this respect. There is a song which I have heard, "Yo, ho, ho, Mrs. Robinson"; this is
1362
the equivalent. Quite frankly, it is very much better to do as the noble Lord suggests and put this on a basis of a procedure that is laid down for a person to follow in a company rather than putting it on the basis that somebody has to go to an individual and complain and say, "This is your job to do this," which leads to all sorts of complications. That being so, I would support the Amendment.
LORD BERNSTEIN: I support the Amendment. I am heartened by an Amendment of this kind from the other side, I think the first one we have had since the Committee started.
EARL JELLICOE: I tiptoe into this unholy alliance which seems to have formed around me, because I must make it clear that this Amendment which the noble cox has so ably moved seeks to restore this part of the Bill to its original form prior to the Government Amendment which was moved at Committee stage in another place. Therefore, although it will take me a minute or two, because this was a Government Amendment, I think I should explain the thinking behind it. First of all, I should like to make it plain beyond peradventure that the Government attach considerable importance to there being clear grievance procedures in industry and the employees being aware of them. It is quite common for the ordinary employee not to have the foggiest idea what to do when he has a grievance. We all know that this is so in too many cases.
This ignorance is sometimes exploited—let us not kid ourselves that it is not—and even when it is not exploited it can lead to unnecessary friction and frustration. Quite simply, the Government's intention is to do what they can to help to rectify this situation and to make certain that employees understand quite clearly the procedures available to them for dialing with grievances and how action under those procedures may he initiated. Most large employers—and this applies particularly in the public sector—have worked out agreed procedures for dealing with employees' grievances; but the requirement under this Act is not confined to employees who have a formal grievance procedure. In our view, it will also help employees who do not have access to formal machinery to know to

1363
whom they should apply if they have some grouse or grievance connected with their employment. That is why the Government hope this provision will serve to focus attention on the need throughout industry for clearly worked out and well-understood grievances procedures. We hope that it will encourage employers to think about this aspect of industrial relations with a view to improving the existing procedures or establishing proper rules and procedures. I am quite sure that the Committee will agree that those aims, at least, are desirable.
I now turn briefly to the details of the subsection and to the criticisms of it which have been made by my noble friends behind me and by noble Lords opposite. First, subsection (b) is intended to make it clear that the employee should not be in any doubt as to the grievance machinery he may use and as to whom he can apply to trigger off that machinery—and this applies whether or not there is formal machinery. I recognise that the reference here to specifying a person has been taken to mean that a particular named individual must be specified. I am informed that this is not the case, although the English might seem to imply that it is. I have checked on this very carefully. An employer may name an individual if he so wishes; but my advice is that the provision in the Bill means that an employee could equally well be directed to apply to his foreman, without his foreman being named, or to the manager of the department in which he may be working.
Clearly in a large concern with 200 or 300 foremen—for example, in a Ford motor plant—it would present a formidable task to keep employees' written statements up to date if named individuals had to be inserted in them. The Government do not expect this, nor, I am assured, does the legislation—whatever noble Lords may think—require it.
My noble friends seem worried in case the machinery we are setting up may be rather "heavier" than is in fact required. I think they are reading rather more into the provision than is intended All that it requires is that the employee should be given a note in his written statement, saying to whom—not necessarily an individual—he can go if he has a grievance. This seems a limited
1364
arrangement and in fact it implies in many cases no more than a simple procedure. For example, on a farm the obvious person to go to would be the boss. That is all that is required and we do not think this is an unreasonable or unduly onerous requirement.
Having said that, I should like to make it clear that I have listened carefully, I hope, to what has been said behind me and in front, and I should like to think about this. I think myself that the wording could be improved. "Specifying a person", for example: if it does not mean a named individual I think the wisdom of Parliamentary draftsmen, which is very extensive, could probably find phraseology which would be less misleading to the layman like myself. Also, where there is a reference to "subsequent steps" in sub-paragraph (c), which implies a rather heavy machinery, we may again be able to find something simpler and better. I doubt whether it would be in the precise wording suggested by my noble friend but I should like to ask him if he will allow us to have a look at this. I would not wish to be unduly committed here because I know my right honourable friend attaches very considerable importance indeed to getting this clear procedure, but I would hope to be able to suggest something at Report Stage.
LORD BROWN: I make this comment for the record. I am grateful for what the noble Earl has said. The difference between the Bill as it stands and the Amendment is that in the Bill there is not necessarily a written appeals procedure. According to the Amendment, you must have it. If we can do anything to make certain that these written procedures exist it will be a good thing. In the case of a farm the procedure can merely say "ask the boss" but in the case of a large industrial organisation written procedures are very much better than the right to go to somebody who will explain it to you.
EARL JELLICOE: I should like to say straight away that it must be written because it refers to "every statement", and at the risk of being accused of being a "bumf" manufacturer by my noble friend behind me I must point that out to the noble Lord, Lord Brown.
BARONESS WHITE: I did not rise earlier because frankly I had assumed that with the wealth of persuasion behind and before me the noble Earl would have accepted the proposed Amendment; it seems to us on this side of the Committee to be an improvement on the Bill as it now stands, and I should have thought that the proposed Amendment covers the ground that needs to be covered. If in certain circumstances the employer wants to indicate a person or somebody holding a particular position in the firm to whom representations should be made, it is open to him to do so under the terms of the Amendment. But we are not entirely happy that a particular person should be named by the employer. I will be quite frank about the reason. We think that in many circumstances it would be better, if a person has a grievance, that he should go to his shop steward and ask for advice, so that he does not put forward his grievance without having taken advice from someone more experienced than himself. If, as has been indicated, he has to go to the foreman or to some specific person on the management side, this may militate against it. If he goes properly to his trade union shop steward or organiser, that official will know perfectly well to whom he ought to go with the grievance, and he can then go with the backing of someone who may have had far greater experience than he about the particular complaint. The shop steward or organiser may in fact be able to advise him how to settle it without even starting a grievances procedure. For those reasons we prefer the Amendment as put forward, with the great weight of the C.B.I. behind it, as I understand it. I should have thought that with the combined entreaty of the C.B.I. and those who have experience in the trade union world, the Government might be a little more flexible about this matter and not be quite so certain that they are right.
EARL JELLICOE: I really must protest to the noble Baroness. I thought I made it perfectly clear in my closing remarks that I was not quite certain that we were right. I made it perfectly clear that I was willing to look at this point, and I should like to re-emphasise that. I think our wording could certainly be improved. I am not certain whether the C.B.I. wording is quite the right wording; I should like to look at both wordings
1366
in the light of the remarks, which I think have been very helpful, made from all sides of your Lordships' House this evening. I thought I had made that clear. If I had not, I hope I have now made it clear.
THE EARL OF LAUDERDALE: These twenty minutes or so round about midnight have surely shown that this House serves a very useful purpose. We have now had an explanation from the Government about a subsection introduced in another place, which was not there explained. The explanation has related primarily to the vexed meaning of the word "person", and for that I should like to express my personal thanks and those of my colleagues to my noble friend Lord Jellicoe. But, far more important than the simple explanation, if simple is the word, about the meaning of "person", if "person" is a simple word, is our overall concern for better, clearer and cleaner procedures. The key word in my noble friend's answer has been simplicity, and on account of that word alone, quite apart, if I may say so, from his friendly demeanour and readiness to help and assist and look at this matter again, I wish to withdraw this Amendment. It is simplicity that we need in a complex matter. It is clarity of understanding and purpose that we require. It is this that we have been given from our own Front Bench. Therefore I beg leave of your Lordships to withdraw this Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 18 shall stand part of the Bill?
12.8 a.m.
LORD DELACOURT-SMITH: I should like to draw the attention of your Lordships to one or two features of Clause 18. As your Lordships will know, there was an Amendment, No. 193, which we had down to this clause, but on consideration and in the light of the Government Amendment and of the discussions which we have had during the proceedings on the Bill so far, it would seem that perhaps it would he more businesslike and avoid repetition if I raised the points which we have in mind on whether the clause shall stand part, when I can go a little wider than I would have been able to do on the Amendment. I am encouraged to proceed in this way by the responsive attitude of the Leader of the House

1367
on the Amendment which has just been discussed. I am sorry that he, in I think almost his first intervention in the proceedings on this Bill, has found the word person "so troublesome. It has troubled us already in the Committee, and it was on the tip of my tongue to rise during the earlier Amendment and ask whether he thought any useful purpose would be served by substituting the word worker for it; but perhaps that really would not have been very constructive.
What I should particularly like to ask the noble Lord and the Committee to consider is subsection (2), and particularly subsection (2) (a). The Committee has shown itself extremely interested and sympathetic to the idea that, in some proper detailed personal form, individual workers should be given an indication of their entitlements in respect of conditions of service, and guidance about the handling of grievances. Personally I believe that this is a subject which it would pay industry very handsomely to approach with understanding and imagination. My experience is that individuals entering industry, and particularly young workers entering for the first time, are impressed to quite a remarkable degree by the information which an employer troubles to give them about the new career that they are entering. If, as years advance, workers changing jobs do not approach a new job with quite the same enthusiasm with which they might have approached their first job, it is perhaps because an unwillingness to give them as much information, and involve them as completely as could be done, has bred a cynicism. Therefore it is an important subject which we are discussing, because it does so much to contribute to the impression which the individual entrant to a firm has of that firm, and also of its attitude to him.
I particularly want to direct attention to what will he told him at this point about his rights in relation to trade union membership or trade union non-member-ship, for it is a provision of subsection (2) that every statement given to an employee under subsection (1) should include, among other things, a note about his rights under Clause 5 of this Bill. We have already spent a great deal of time discussing Clause 5, and it begins with this contenious declaration that a worker has a right
1368
to be a trade unionist and has a right to be a non-unionist. if one looks merely at the first part of Clause 5, it appears that these rights are of an equal standing. If one reads further through the clause, and if one appreciates the statements which have been made by the Government and by others, these are not rights of equal force, validity and significance, and they ought not to appear to be so. For them to appear to be so would be, in fact, misleading.
The Donovan Commission—and we have already quoted this more than once—has a very apposite comment on this point, and says that the right to be a trade unionist is of the greater value, because it contributes positively to the encouragement of collective bargaining, which it should be public policy to encourage. The Government have made it clear that they share this general view. They have made this clear in general statements; they have made it clear in comments which have been made by noble Lords during proceedings on this Bill. It is also brought out, if one looks at it, in the various provisions of the Bill. For example, in Clause 5 itself there are the important rights not only to he a trade unionist but, what is equally important, to carry on the activities of the trade union in the terms set out in the clause. The existence as part of the Bill of the agency shop and the closed shop further signifies that these are not rights which are on an equal footing. We have emphasised this point and attach great importance to it. Indeed, it is significant that subsection (5) of Clause 5 states that it is not improper for an employer to encourage tile workers to join a trade union which the employer recognises as having negotiating rights. So these are not two rights which are on an equal footing, and it is important that this is brought out and included in any statement to an employee about his rights under Clause 5 and what flows from it.
For that reason, I hope it is not intended that there should be given to every worker a simple austere statement or reproduction of Clause 5 itself. That would be a very simple, legalistic way by means of which any employer could say that he had fully complied with the terms of the subsection. But it would not be an imaginative or, in a true sense, an accurate way of conveying the mind of Parliament and the interests of the community in this

1369
context. In many ways it would be misleading. We all know, for example, how much misinterpretation there has been even here of the phrase in paragraph (a) of Clause 5(1),
"the right…to be a member of such trade union as he may choose",
and Government spokesmen have emphasised very strongly that that phrase,
"of such trade union as he may choose?"
must be read in conjunction with the earlier line defining these things as rights which the worker has as between himself and his employer. But that statement conveyed in that form by a simple reproduction of the clause would undoubtedly give rise to misunderstanding.
What I am specifically asking the Government to do is to reconsider the wording of, in particular, paragraph (a) of subsection (2), to take account of the points which I am making—points which are, to a large extent, common ground between the two sides. This is important if a statement of the employee's rights in this field is to be given to him as a statutory requirement as the subsection proposes.
The noble Lord will be aware of what has been done, and very well done, for many years in the Civil Service. In the excellent introductory booklet given to the new civil servant, there is a statement to the effect that he is not only permitted, but actually encouraged, to join a trade union. Then there are a few sentences setting out in a very simple and reasonable way the function of the trade union as seen by the employer into whose employ the young civil servant is coming.
There is scope for this point to be examined, not necessarily in isolation, but as part of the general arrangements for induction. If there is to be a statutory requirement to give to workers a statement of this kind, it would be very valuable if the Government could consider not only the form of the statutory requirement in paragraph (a) of subsection (2), but also in what other ways creative and imaginative discussion can be promoted. Should there be a reference to this in a general way in the code of practice? Or. as I am inclined to think, should it not be among those matters—and there are bound to be many—which will have to be discussed along-
1370
side the code of practice with the various interested parties that the Government are going to consult about the code of practice? I hope that the noble Lord will be able to make a sympathetic response to this and will consider whether between now and Report stage he can reframe this subsection to take account of the points which I have made, which, as I say, I hope will command support on both sides of the Committee.
EARL JELLICOE: I am grateful to the noble Lord, Lord Delacourt-Smith, for the way he has put his points. I think I should say this frankly straightaway: I do not myself see that there is really a need, and I do not think he has quite seriously made out a very convincing case, at least to me, for a re-drafting of the requirement in subsection (2)(a) of Clause 18 of the Bill. Because it seemed to me that the Committee was in agreement that it would be sensible that all employees should have full knowledge of their rights. I think the only point the Committee were on was how this should be best communicated. Although we know that we disagree, or agree to differ, on Clause 5 and on the agency shop provisions, I did not hear any dissent that knowledge of employees' rights should be communicated in these statements. But what I can undertake to do is to consider carefully the points which Lord Delacourt-Smith has put to the Committee, out of a great wealth of firsthand experience, as to how my right honourable friend should advise employers and employers' organisations about the content of this communication. Thai I gladly undertake to do, and I will ensure that his remarks on "Clause stand part" are brought to my right honourable friend's attention.
LORD DELACOURT-SMITH: I wonder whether the noble Earl could go a little further than that and could indicate that he will not consider himself bound by the terms of the subsection as it stands at present, and that in examining this matter he will be prepared to contemplate, if it is necessary, some variation of it.
EARL JELLICOE: I think I must be frank about this. I do not think that a change is necessary here. Were I to persuade myself that it was necessary,

1371
naturally I should contemplate the change.
Clause 18, as amended, agreed to.
Clause 19 [Supplementary provisions as to Contracts of Employment Act 1963]:
EARL JELLICOE EARL JELLICOE moved Amendment No. 195:
Page 15, line 28, after ("of") insert ("Part I of").
The noble Earl said: I hope it will be for the convenience of the Committee if we take this Amendment, No. 195, together with the Amendments which really flow with it: Nos. 196, 197, 198 to 201—the Amendments which stand in the name of my noble friend—and also, I fear, with them, a manuscript Amendment to Amendment No. 200 which my noble friend has produced out of his hat at the last moment and which I can assure noble Lords opposite is entirely of a minor drafting variety. This series of Amendments which I am now moving looks rather formidable, but I hope that after I have explained the purpose behind them your Lordships will agree that they make for rather more plain sailing than at first sight may appear.
I hope it may be helpful if in explaining the purpose of these Amendments I give a brief explanation of the background of the written statement provisions in the Contracts of Employment Act on which we have been touching for some little time. Section 4(1) of the Act requires that employees be given within 13 weeks of starting work a written statement giving specific particulars of the main terms of their employment. Section 4(8) provides that employees who receive written contracts of employment that include these particulars need not in addition be given a written statement. This is perfectly sensible since without subsection (8) we should all, employers and employees, be involved in a lot of unnecessary duplication. Class 18(2) of the Bill requires that every written statement issued in accordance with Section 4(1) of the Contracts Act must include a note about the employee's rights under Clause 5. This note must tell him how to proceed if he has a grievance. The aim of paragraph 4 of Schedule 2 to the Bill as originally drafted and as it is now before the Committee was to
1372
make corresponding provisions in the case of those employees who receive written contracts instead of written statements. The Bill as drafted requires the note as mentioned in Clause 18(2) to be incorporated in the individual contract of employment. Paragraph 9 of Schedule 2 anticipates these being treated as variations of the contract.
However, now that we have looked into the matter further, it is clear that paragraph 4 of Schedule 2 as drafted would not adequately meet the situation. It would not, I am advised, be easy to incorporate a note of the kind mentioned in Clause 18(2) into a contract of employment because a note of this kind is of an explanatory rather than a contractual nature. Moreover, to incorporate such a note in a contract of employment would mean that large employers who issue written contracts to their employees instead of written statements under the Act would be faced with a really mammoth administrative task in having to draw up and issue to every employee either a complete written statement under the Act or a fresh written contract of employment in order to include the variation introduced by Clause 18(2). I know for example that this would lay an enormous burden on one big employer, the Post Office. Since the Post Office became a corporation, all their employees receive written contracts of employment. It was certainly not our intention when drafting the Bill to place a burden of this kind on employers who issue written contracts.
The Amendments aim to overcome this problem by maintaining the validity of the existing contracts without the need for this change if a note as mentioned in Clause 18(2) is given to the employee separately and in addition to his written contract or if he is given reasonable opportunities of reading such a note in the course of his employment or if such a note is made accessible to him. If the additional note has not been given or made accessible within one month of the coming into force of the operation of these provisions the employee will be regarded as no longer excepted under Section 4(8) of the Act and will have to be issued with a full written statement as provided in Section 4(1) of the Contracts of Employment Act. That is the simple purpose behind this formidable and complicated series of Amendments. I hope

1373
my explanation will render them acceptable to your Lordships. Perhaps I should mention, in conclusion, that the new Part II of Schedule 2 merely reproduces Section 4(1) to (9) of the Contracts of Employment Act as amended by these provisions.
LORD DIAMOND: We are all attracted by understatement, which is a particular British habit. The statement by the noble Earl about the complications of the series of Amendments we are dis. cussing was one such attractive understatement. I want to deal with the substance and then with the form. What I understand from the noble Earl's statement is that all the information we are now deciding should be given by the employer to the employee will be given in one form or other. I am grateful for his confirmation. I do not think we have any quarrel with the Government's purpose if that is what they seek to do.
I turn now to the form. It was quite impossible for me to follow the whole thing through in the way it has been put down. I should have thought this an occasion on which it would have met the convenience of the Committee if there had been a Schedule printed as it is now intended to be, complete in its new form, instead of having all these bits and pieces. The noble Earl will recognise that in order to arrive at the truth of what he said, which I do not doubt for one second, one has to leave out all sorts of existing bits and to add all sorts of other bits; they do not fit together. You cannot read one document without having at least four and now we have an additional tenth thought—I hesitate to call it a second thought. It is a small matter, but it is an Amendment to an Amendment to what the Government are thinking now, as opposed to what they were thinking earlier on. It has made it impossible to follow this completely through. I am sure we are all grateful that pail of it has been printed in heavy type that was of some help.
I am saying all this because all I can do at the moment is to express my gratitude to the noble Earl for what he has said. He has confirmed that I have understood it. I will now go away and read in Hansard what he has said and try to put the bits together to see whether we think they correspond to what he has advised us they should mean. I daresay that his advice is as reliable as it always
1374
is, but one could not do more than that at this stage. I do not want to delay the Committee further. The essence of the meaning is satisfactory but the form is completely unsatisfactory and we must hold ourselves completely free to come back on this at some stage or other. I suppose it is too late now to ask that there should be a reprint because the reprint will be in the Bill as it is printed for Report stage. The Schedule will be in its new form and we shall see what the situation is. But if we have this sort of thing again I hope that the noble Earl will bear in mind that it is frequently found convenient, when you are changing a number of things, to have at least two Bills going, this and another one. In this Act we are changing another Act, and in another Act we are referring to the changes taking place in this Act. It is a most devilishly complicated matter and it would have been more convenient if a reprint of the whole thing, as the Government now intend, had been made available, particularly as I should not be surprised if the Government have to come along with more bits of paper like this and say that thy did not appreciate the effect of it. I have made my little grumble. The noble Earl has confirmed that I understand correctly what is proposed and I do not wish to delay your Lordships any longer.
EARL JELLICOE: I should like to express my gratitude to the noble Lord, for frankly he has let me off a bit lightly. I have tried to penetrate this maze, with a few more signposts than the noble Lord has had, and with all those signposts I have always arrived at different parts of the maze. I have considerable sympathy with him and should like to think that there is some possibility that I might be able to help him with an early sight of what Schedule 2 is going to look like.
LORD DAVIES OF LEEK: I have listened with care and alertness and tried to follow this matter but it is difficult indeed. If we go on, we may get exasperated and bad tempered, and one thing I do not like to see is bad tempered noble Lords at this time of the morning. Is an agreement under this provision a legally binding contract or not? That is all I want to hint at this evening. I think that it would be better at a brighter time

1375
of another day to discuss this subject in depth.
LORD DIAMOND: The noble Earl is going to think about whether he can help me with the Schedule. What we are dealing with here is not part of the Industrial Relations Bill but part of the Contracts of Employment Act. Does the noble Earl have in mind consolidating the two so that we could have one Act to look at?
EARL JELLICOE: No, I was referring to the Schedule. Consolidation with the Contracts of Employment Act would be more than I could produce in the time.
EARL JELLICOE: I beg to move Amendment No. 196:
Amendment moved—
Page 15, line 31, at end insert—
("(2) Subsections (1) to (9) of section 4 of the Contracts of Employment Act 1963 (as amended) shall have effect as set out in Part II of that Schedule.")—(Earl Jellicoe.)
Clause 19, as amended, agreed to.
Schedule 2. [Contracts of Employment Act 1963.]
EARL JELLICOE: I beg to move Amendment No. 197:
Amendment moved—
Page 128, line 29, leave out from ("following") to end of line 30 and insert ("subsections shall be substituted for subsection (8)"). —(Earl Jellicoe.)
EARL JELLICOE: I beg, to move Amendment No. 198:
Amendment moved—
Page 128, line 39, leave out paragraph 4 and insert—
("(8) The foregoing provisions of this section shall not apply to an employee if and so long as the conditions specified in the next following subsection are fulfilled in relation to him.
(8A) Those conditions are that—

(a) the employee's contract of employment is a contract which has been reduced to writing in one or more documents and which contains express terms affording the particulars to be given under each of the paragraphs in subsection (1) of this section, and under each head of paragraph (d) of that subsection;

1376

(b) there has been given to the employee a copy of the contract (with any variations made from time to time), or he has reasonable opportunities of reading such a copy in the course of his employment, or such a copy is made reasonably accessible to him in some other way; and

(c) such a note as is mentioned in section 18(2) of the Industrial Relations Act 1971 has been given to the employee or he has reasonable opportunities of reading such a note in the course of his employment or such a note is made reasonably accessible to him in some other way.

(8B) If at any time after the beginning of an employee's period of employment he ceases to come within the exception in subsection (8) of this section, the employer shall give the employee a written statement tinder subsection (1) of this section not more than one month after that time.").—(Earl Jellicoe.)
12.39 a.m.
LORD DRUMALBYN LORD DRUMALBYN
moved Amendment No. 198A:
Page 129, line 26, leave out from ("1963") to end of line 46 and insert ("after paragraph 3 there shall be inserted the following paragraph: —
Sickness or industrial injury benefit
3A. —(1) The following provisions of this paragraph shall have effect where the arrangements in force relating to the employment are such that—

(a) payments by way of sick pay are made by the employer to employees to whom the arrangements apply, in cases where any such employees are incapable of work because of sickness or injury, and

(b) in calculating any payment so made to such employee an amount representing, or treated as representing, sickness benefit or industrial injury benefit is taken into account, whether by way of deduction or by way of calculating the payment as a supplement to that amount.

(2) If during any part of the period of notice the employee is incapable of work because of sickness or injury, and—

(a) one or more payments, either by way of sick pay or as amounts required to be paid by virtue of this Schedule, are made to him by the employer in respect of that part of the period of notice, and

(b) in calculating any such payment such an amount as is referred to in sub-paragraph (1)(b) of this paragraph is taken into account as therein mentioned,

then for the purposes of this Schedule the amount so taken into account shall be treated as having been paid by the employer to the employee by way of sick pay in respect of that part of that period, and shall go towards meeting the liability of the employer under paragraph 2 or paragraph 3 of this Schedule accordingly.")
The noble Lord said: This is a relatively simple Amendment and I hope that it will not tax your Lordships too much

1377
at this early hour. Schedule 2 of the Contracts of Employment Act guarantees an employee's pay during the minimum period of notice required to be given under the Act, if he does not work during all or part of his working hours because of incapacity through sickness or injury. The employer can count towards the guaranteed payment any sick pay or holiday pay he makes in respect of the period of notice. There is no provision, however, which allows any sickness or industrial injury benefit the employee receives in respect of that period to be taken into account. The absence of such a provision has caused difficulty in some industries in which wages are usually made up while the worker is away sick. The provisions of Schedule 2 to the Act have resulted in employees receiving more in some circumstances than if they had been at work. The heavy increase in sick absences when redundancy notices have been given has in some instances created difficult problems for employers—for example, in relation to the redeployment of the labour force. When an employer has a redundancy scheme he calculates his requirements, and they get badly upset if the sick absences, as they are called, are greatly in excess of the norm. The problem has been further aggravated by the introduction of earnings-related sickness benefit. This has enabled some individuals covered by the guarantee provision to receive during the notice period the equivalent of up to 185 per cent. of their usual earnings. This problem will be further aggravated by the longer minimum notice period provided for in Clause 17.
The vast majority of employers who provide full wages during sick absences in normal employment circumstances take into account the amount of any sickness or industrial injury benefit which the employee receives. Therefore, it seems only sensible that, where such an arrangement applies, it should be allowed to continue during the period of notice. The employer will merely be applying the usual arrangement for payment of wages during sickness, and the employee will be no worse off financially than at any other time when he is absent sick. I should make it clear that the provision does not allow employers who have no sick pay arrangements to deduct sickness or industrial injury benefit from the guaranteed payment.
To sum up, this Amendment rectifies an anomaly in the Act which has been causing considerable difficulty, particularly since the introduction of earnings-related benefits, and I commend it to the Committee. I beg to move.
LORD DIAMOND: I wonder if I could ask just one question on this. Has the noble Lord any idea of the size of the matter we are dealing with? Can he say how much is likely to be going to be saved, or how much less is likely to be spent, as a result of this Amendment? Has he attempted to make any calculation? It is difficult to know from the wording whether we are dealing with a matter of considerable substance or not.
LORD DRUMALBYN: The fact is that this difficulty arises simply because there is no provision in the existing legislation for offsetting sickness benefits. The extra expenditure to which the noble Lord refers is not a charge on the Exchequer, because people are getting their sickness benefits already. I am afraid I have not got a figure to give the noble Lord, and I imagine that it would be difficult to estimate one of this kind. May I make inquiries and let the noble Lord know?
LORD DIAMOND: I should be most grateful if the noble Lord would do that. We are talking about the reduced amount which will be received by employees to whom the new provision applies. They will not get as much, both in terms of sickness relief and in terms of pay from their employers, as they are getting at the present time. If that is not a substantial item, one can recognise that there has been a duplication which was, to a certain extent, an oversight, or provision was not made for one to be set off against another. If it is a substantial sum, it is going to affect people who have become accustomed to receive amounts which they are no longer going to receive. One would want to know that there was no resulting hardship or anything of that kind.
LORD DRUMALBYN: The noble Lord has not quite got this right. We are dealing with the case where a man is working in the normal way and if, during that period, he goes off sick, the

1379
employer will normally offset his sickness benefit against the normal payment. Under the existing legislation, if during the period of notice he goes off sick he gets his sickness benefit in addition to his full guaranteed pay. We are dealing in Schedule 2 only with the period of notice. The difficulty in making an estimate is of knowing what proportion of employers have arrangements for the offseitting of sickness benefits under their sick pay schemes. It may be difficult to make an estimate, but I will make inquiries about it.
LORD DIAMOND: I recognise that it will be difficult, and that it will only be an estimate, but it will be better than nothing. One's advisers are extraordinarily good at making use of whatever information is available and of giving an estimate. I am trying to get at the size of the matter with which we are dealing. If there is a large amount involved, then clearly there are many people who in those circumstances, during their period of notice have been receiving a much larger figure and others have been expecting therefore to receive a much larger figure than they will now receive when the new regulations start to apply.
LORD DRUMALBYN: The problem here is that obviously once a person receives notice he is liable to have less interest in the job than before he received the notice. This applies during redundancy. This unforeseen extra benefit that he receives during the period of notice operates as a temptation to him not to work. This is unjustified, and we ought to face this quite squarely. I do not think we ought to over-estimate hardship to someone who probably did not even know that he would get both full sick benefit and the guaranteed payment during his period of notice. He would not get it normally and the question is: why should he get it during the period of notice simply by a quirk in the law?
LORD DIAMOND: I am taking the point that the noble Lord is making; that is, that although certain individuals get a certain amount, they ought not to get it and, in all fairness, it would be reasonable to make arrangements that they should not get it. Before entering too
1380
deeply on the argument, it would be right to know how much is involved. If a great deal is involved we shall want to come back to this matter on Report Stage.
EARL JELLICOE: I move Amendment No. 199 formally.
Amendment moved—
Page 130, line 5, after ("but") insert ("(except as provided by the next following paragraph)").—(Earl Jellicoe.)
EARL JELLICOE: I move Amendment No. 200 formally.
Amendment moved—
Page 130, line 7, at end insert—
(". On the coming into operation of paragraph 3 of this schedule, an employee shall not be treated as ceasing to come within the exception in subsection (8) of section 4 of the Act of 1963 by reason only that the condition specified in paragraph (c) of that subsection is not fulfilled; but he shall be treated as ceasing to come within that exception unless that condition is fulfilled not more than one month after the coming into operation of paragraph 3 of this Schedule."). —(Earl jellicoe.)
LORD DRUMALBYN: I beg to move Amendment No. 200A as an Amendment to Amendment No. 200. This is purely drafting.
Amendment to the Amendment moved—
In line 5, leave out ("that subsection") and insert ("subsection (8)(a) of that section").—(Lord Drumalbyn.)
12.51 a.m.
EARL JELLICOE: I beg to move Amendment No. 201 formally.
Amendment moved—
Page 130, line 10, at end insert—

PART II SECTION 4(1) TO (9) OF CONTRACTS OF EMPLOYMENT ACT 1963 AS AMENDED
[In the provisions set out in this Part of this Schedule the words inserted by the Bill are printed in heavy type]
4. —(1) Not later than thirteen weeks after the beginning of an employee's period of employment with an employer, the employer shall give to the employee a written statement identifying the parties, specifying the date when the employment began, and giving the

1381
following particulars of the terms of employment as at a specified date not more than one week before the statement is given, that is—

(a) the scale or rate of remuneration, or the method of calculating remuneration,

(b) the intervals at which remuneration is paid (that is, whether weekly or monthly or by some other period),

(c) any terms and conditions relating to hours of work (including any terms and conditions relating to normal working hours),

(d) any terms and conditions relating to—

(i) entitlement to holidays, including public holidays, and holiday pay (the particulars given being sufficient to enable the employee's entitlement, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated),

(ii) incapacity for work due to sickness or injury, including any provisions for sick pay,

(iii) pensions and pension schemes, and

(e) the length of notice which the employee is obliged to give and entitled to receive to determine his contract of employment:

Provided that paragraph (d)(iii) of this subsection shall not apply to the employees of any body or authority if the employee's pension rights depend on the terms of a pension scheme established under any provision contained in or having effect under an Act of Parliament and the body or authority are required by any such provision to give to new employees information concerning their pension rights, or concerning the determination of questions affecting their pension rights.
(2) If there are no particulars to be entered under any of the heads of paragraph (d), or under any of the other provisions of the last foregoing subsection, that fact shall be stated.
(3) If the contract is for a fixed terms, the date when the contract expires shall be stated.
(4) If after the date to which the statement relates there is a change in the terms to be included, or referred to, in the statement. the employer shall, not more than one month after the change, inform the employee of the nature of the change by a written statement and, if he does not leave a copy of the statement with the employee, shall preserve the statement and ensure that the employee has reasonable opportunities of reading it in the course of his employment, or that it is made reasonably accessible to him in some other way.
(5) A statement under subsection (1) or subsection (4) of this section may, for all or any of the particulars to be given by the statement, refer the employee to some document which the employee has reasonable opportunities of reading in the course of his employment, or which is made reasonably accessible to him in some other way.
(6) If the employer in referring in the statement to any such document indicates to the employee that future changes in the terms the particulars of which are given in the document will be entered up in the document
1382
(or recorded by some other means for the information of persons referring to the document) the employer need not under subsection (4) of this section inform the employee of any such change which is duly entered up or recorded not more than one month after the change is made.
(7) If, not more than six months after the termination of an employee's period of employment, a further period of employment is begun with the same employer, and the terms of employment are the same, no statement need be given under subsection (1) of this section in respect of the second period of employment, but without prejudice to the operation of subsection (4) of this section if there is a change in the terms of employment.
(7A) In subsections (4) to (6) of this section any reference to that which is, or is to be, included, given or referred to in a statement under subsection (1) of this section shall be construed as including a reference to the note mentioned in section 18(2) of the Industrial Relations Act 1971, and any reference to that which is, or is to be, included, given or referred to in a statement under subsection (4) of this section shall be construed in a corresponding way.
(8) The foregoing provisions of this section shall not apply to an employee if and so long as the conditions specified in the next following subsection are fulfilled in relation to him.
(8A) Those conditions are that—

(a) the employee's contract of employment is a contract which has been reduced to writing in one or more documents and which contains express terms affording the particulars to be given under each of the paragraphs in subsection (1) of this section, and under each head of paragraph (d) of that subsection;

(b) there has been given to the employee a copy of the contract (with any variations made from time to time), or he has reasonable opportunities of reading such a copy in the course of his employment, or such a copy is made reasonably accessible to him in some other way; and

(c) such a note as is mentioned in section 18(2) of the Industrial Relations Act 1971 has been given to the employee or he ha s reasonable opportunities of reading such a note in the course of his employment or such a note is made reasonably accessible to him in some other way.

(8B) If at any time after the beginning of an employee's period of employment he ceases to come within the exception in subsection (8) of this section, the employer shall give the employee a written statement under subsection (1) of this section not more than one month after that time.
(9) No account shall be taken under this section of employment during any period when the hours of employment are normally less than twenty-one hours weekly, and this section shall apply to an employee who at any time comes or ceases to come within the exception in this subsection as if a period of employment terminated or began at that time.") —(Earl Jellicoe.)
LORD DIAMOND: I have only one question to ask and that is merely whether the Government have this right. No doubt they have, but I am not absolutely sure. This Amendment seems to come at the end of line 10. Line 10 is the interpretation clause. So Part II is coming after the interpretation clause. Does that mean that the interpretation clause is not meant to apply to Part I and Part II? I should have thought, without being fully informed about it, that the Government were intending to put Part II at the end of line 7; that is to say, to enable the interpretation clause to apply to Part II as well as to Part I. Is there any subtle point I have not noticed?
THE LORD CHANCELLOR: If the noble Lord has this point I think we shall have to consider it with the draftsman. I think it is all right as it stands. It is simply in effect to reprint with the relevant sections of the Act as they will be after amendment, so there is no substance in it. But if the noble Lord wishes to push the point as to whether it ought to he inserted at line 7 or line 10, I shall have to discuss that with the draftsman.
LORD DIAMOND: I am not pushing anything; I am only saying to the Government that it would seem to me that it would be easier and more normal if the interpretation clause were at the end rather than in the middle.
THE LORD CHANCELLOR: I cannot see that it makes any difference.
LORD DIAMOND: I am suggesting that when we come to Clause 158, which is at the end we stick it in the middle, so that anybody who thinks that he can find his way round the Industrial Relations Bill will be mistaken; he will not know where to look for the meaning of anything at all, whereas one usually goes straight Ito the end 'to look for the interpretation clause, either of a Section or of the whole Bill. It is very good reading, good for the mind; it clears the mind enormously, and is one of the best bedside topics I have read for a long time.
THE LORD CHANCELLOR: I think we should get it right. I think the draftsman is right rather than the noble Lord. I think we should discuss it with the draftsman. It is possible the draftsman is right, and I think he is.
THE EARL OF BALFOUR: May I raise one point on Schedule 2? I should like your Lordships to look at paragraph 1(1)(a). This paragraph does not appear to me quite to make sense. In particular, I feel that the word "employer" in line 11 really is a printing error and that it should be "employment". If I may explain a little further: although the employer has changed, the employment has not. If I may read the last part of paragraph 1(1)(a):
"…but without any chance in the identity of the employer …
I am quite sure it does not mean employer because the employer has changed; he has gone.
THE LORD CHANCELLOR: I am afraid it does mean employer.
THE EARL OF BALFOUR: It did not seem to make sense to me.
THE LORD CHANCELLOR: The employer can change his name without changing his identity. I think my noble friend will see "Change of name or identity of employer" at the top of Part I and then at line 11 he can change his name without changing his identity. If I am wrong, I will let my noble friend know, but I think he is mistaken and that the words mean exactly what they say.
THE EARL OF BALFOUR: I am sorry to have delayed the Committee, and I thank my noble and learned friend.
Schedule 2, as amended, agreed to.
Clause 20 [Right of employee not to be unfairly dismissed]:
LORD WELLS-PESTELL LORD WELLS-PESTELL moved Amendment No. 202.
Page 15, line 26, leave out ("an unfair industrial practice") and insert ("unlawful").
The noble Lord said: I rise to move the Amendment standing in the name of my noble friend, Lord Delacourt-Smith. Your Lordships will note that this particular clause deals with unfair dismissal, and, if I may say so with respect, it does seem to me to be inappropriate that in line 36 the phrase "unfair industrial practice" should be mentioned. It refers to unfair dismissal

1385
as an unfair industrial practice, whereas in fact I would have thought that the purpose of this particular clause, dealing as it does with unfair dismissal, was to point out that that in itself is an unlawful action. If this is so, I would suggest that the words in the clause are unsuitable. If an employer is behaving in an unlawful manner, surely that is in itself an unlawful action, and if that is what the clause means then I think we ought to say so—that an unfair dismissal is an unlawful action. Therefore we should use the word "unlawful" in place of the words "unfair industrial practice". I am sure in my own mind that this is what is really meant; if that is so, I think we should say so in very clear and precise terms. I hope it is clear to noble Lords on the other side, and I hope noble Lords on the Government Benches would feel able to accept this Amendment. In the interests of accuracy, and certainly of simplicity, it would be much better to use the word "unlawful" than the ones we find in the clause. I beg to move.
LORD DIAMOND: To clarify the matter, could I say that this must be a misprint for "line 36"?
THE LORD CHANCELLOR: Yes. I had already pointed it out to my noble friend.
EARL JELLICOE: I am grateful to the noble Lord. I am clear as to what he is after, and I am also clear as to where we are in the Bill: that we are in line 36 and not 26. May I say straight away that I do not think I can advise your Lordships to accept the noble Lord's Amendment and that is because of its effect? It is quite clear to me that whatever the noble Lord's intention and whatever the intention behind his Amendment, the effect quite clearly would be to bring complaints of unfair dismissal to the ordinary courts instead of to the industrial tribunals and to the National Industrial Relations Court. I could expand on why I do not think this would be right, but that would in fact be the effect of this Amendment. I am certain it would be a grievous error if we were to do this, and for that reason alone I do not feel I can advise your Lordships to accept this Amendment.
LORD DIAMOND: I am not sure that that is a satisfactory answer. Would the
1386
noble Earl tell me the present position? If a proposal is against the law, it is normally deemed to be unlawful, and the courts are available to grant relief, if relief is needed. Is there any need to introduce unfair industrial practice concepts or new machinery under which unfair industrial practice concepts can be tested? If this is a perfectly straightforward concept, why do we need to do anything more? Could the noble Lord help me by saying what the present situation is?
1.2 a.m.
THE LORD CHANCELLOR: I wonder whether I could try to help, although it is a little difficult to put into very few words. There are three different types of right which the employee can have under this Bill, if passed. The first is his right of action in the ordinary courts in respect of the breach of a term of his contract of employment: there is an action for breach of contract. The simplest case would be if he were dismissed unlawfully without notice. An employee could be told to go: he has done nothing wrong and he is entitled to three months' notice, but he is not paid money in lieu of notice. In the ordinary courts, subject to Clause 108 of this Bill—which I will not refer to at this stage because I may have to refer to it later—this is a perfectly simple action in the county court or, if a sufficiently large sum of money is involved, in the High Court. At the other end of the scale there is the entitlement to redundancy payments; and such a case does not go to the ordinary courts but to the industrial tribunals already set up under previous legislation. So there are already two sets of tribunals to which he can go.
This Bill sets up a totally new concept of unfair dismissal. This is not unlawful in the ordinary sense, because it is not a breach of his contract of employment; but the Bill contains throughout its length a concept called "an unfair industrial practice"—namely, one which is not unlawful under ordinary law but is contrary in one way or another to the code which would be set up by this Bill. This is one of the most important concepts in this Bill. Sometimes it concerns an act by an employer; sometimes one by an individual; sometimes one by an employers' association and sometimes one by a trade union. Broadly speaking, if it is one by

1387
an organisation it is cognisable by the N.I.R.C.: if it is a wrongful act by or against an individual then it goes before the industrial tribunal. It is fundamental to the philosophy of this Bill that unfair industrial practices are not tried by the ordinary courts. I myself, in many ways, should have liked to see them tried in the ordinary courts, but the advice we have received throughout—and this has not so far been disputed by the Opposition—is that trade unions do not very much like courts.
Both the Industrial Court in respect of one class of industrial practice, and the industrial tribunal in respect of this class, consist of at least three persons and not a judge alone, and at least two laymen as well as a lawyer. Two of the laymen in the case of the industrial tribunal are people who have particular experience of industry and are therefore well able to discuss matters of this kind. Incidentally, the industrial tribunal has expertise already, because in the course of its ordinary business for several years it has been dealing with the Contracts of Employment Act and with the Redundancy Act. Therefore there are immense advantages in putting this particular concept before the industrial tribunal when an individual complains of an unfair dismissal which is an unfair industrial practice.
Incidentally, if noble Lords opposite are sincere—as I have no doubt they are—in their demand for an informal procedure, for the absence of complicated pleadings and, in suitable cases, the absence of lawyers to represent parties and the not too strict adherence to the formal rules of evidence (although, of course, the ordinary rules of procedure and justice have to be observed) then the advantages of the industrial tribunal are quite outstanding, and the advantages of an informal and rapid hearing will be preponderant. So much so that when we come to look at Clause 108 it will be seen that when a claim for unfair dismissal is brought at the same time as a claim for wrongful dismissal in the old sense—and, incidentally, it can be brought at the same time as a claim for redundancy payments in the alternative—there is an immense advantage in bringing them all before the same tribunal, and this tribunal is specially designed for the purpose.
1388
The words "unfair industrial practice" are neither here nor there. They are essential to the drafting of the Bill because this is the form of words which attracts the new network of courts rather than the existing and ordinary network of courts. Therefore it is essential, but there is no magic in it, except that it is the formula which is used to attract the new network of the courts under the language of the Bill. There is an immense advantage in it. The word "unlawful" in itself, if I may say so with the utmost respect to the noble Lord who moved the Amendment, is really an almost meaningless concept unless you know whether it is unlawful because it is a crime, because it is a breach of contract, because it is a tort or because it is a breach of statutory duty. This states quite clearly that it is an unfair industrial practice, with all the consequences of that. I hope, with this explanation, that the noble Lord will feel that I have done justice to his Amendment.
LORD BROWN: I wonder whether I may help by briefly reciting from past experience. I remember on four occasions, when seeking to defend persons I knew from what I regarded as unfair dismissal, that I led them to counsel, and in each case I was dismayed to find that counsel said, "Well your chances of winning a case before the ordinary court are almost non-existent because of the state of the law with regard to dismissal in industry". I believe the normal state of the law about these dismissal cases is so vague that I would welcome the terms in which this Bill deals with unfair dismissal.
LORD BERNSTEIN: Would the noble and learned Lord the Lord Chancellor tell me whether it is the word "unlawful" that he is objecting to? Would he accept another word in place of "unlawful"?
THE LORD CHANCELLOR: No. I made it very plain indeed that I am objecting to interference with the rather precise technical language of this Bill, which attracts to the new concept of unfair dismissal—which is different from that of unlawful dismissal—the new network of courts (I call them courts, but tribunals is a more precise term) which is precisely designed to deal with the particular case.

1389
This is to interfere with the structure of the Bill and, I think, with the convenience of both the employer and the employed who wish to have an informal hearing before the industrial tribunal.
LORD DAVIES OF LEEK: It is not quite so easy as that. For the trade unionist to think that he has a fair deal, and that the right of the employee not to be unfairly dismissed is simple and easy, is completely wrong, if we compare what an unfair practice is with paragraph 122, because here in Clause 22 there is a whole list, and an employer can sack a militant shop steward or active trade unionist quite easily. As to his right of reinstatement, even if it is possible, he himself has to prove up to the hilt that the case against him is deliberate victimisation. Let me put it interrogatively rather than trying to be didactic. Is the layman not left in the position, before that tribunal, with no experience, that the onus of proof is upon him? So all this in this clause is mythology: that the workman is in an equal position with the trade unionist. To any of us who have had to do with industrial injuries or insurance over the last thirty years of history, this is a piece of mythology, and one only has to go to Clause 22 to see that. Now what could he argue about—
THE LORD CHANCELLOR: I do not wish to interrupt the noble Lord—
LORD DAVIES OF LEEK: Please do, if you disagree with me.
THE LORD CHANCELLOR: I think I disagree with everything the noble Lord has said so far, but that is not what I rose to say. The point is that it has nothing whatever to do with this Amendment. This House has Standing Orders, one of which is Standing Order No. 27, which obliges one to some degree of relevance. The only point in this Amendment is whether one uses the word "unlawful" with regard to Clause 22, and the practice which is condemned in it, or whether one uses the words, "unfair industrial practice". I am quite willing to deal with questions under Clause 22 when it becomes in order for me to do so, but it really is unfair to put a number of questions which have absolutely no relevance whatever to the Amendment under discussion.
SEVERAL NOBLE LORDS: Hear, hear!
LORD DAVIES OF LEEK: All right; the Committee seems to be on the side of the noble and learned Lord Chancellor, and therefore I will accept that. But I hope we shall get the opportunity of dealing with that in greater depth at a relevant point because, no matter what phraseology is introduced, or what Amendments, the impact of the clause stands to be what I have said it will be.
LORD SHACKLETON: I was intending to thank the noble and learned Lord the Lord Chancellor for a very clear explanation, which enabled us to understand what the Government intended. Those of us who have had experience, as employers, of what is lawful and unlawful, and wrongful dismissal, are well aware that wrongful dismissal, which the general public very often feel can be applied to any act of injustice on the part of an employer, in fact cannot be so applied. Therefore, what the Government are seeking to do does approach a desirable end.
But I am hound to say, following the Lord Chancellor's last remarks in reply to my noble friend, that it is really impossible to discuss this sort of subject without seeing to what it applies. We really are in a difficulty. We have not the code. I assure the noble and learned Lord that I am not trying to prolong the debate. I have been refreshing my memory on some of the later clauses which deal with this. It clearly raises a particular issue, and it helps to clarify the difference between "unlawful" and "unfair industrial practice". Some of us are struggling to understand this Bill, and a number of noble Lords on the Government side also are struggling to understand it. We would all understand it very much better if we had the code. We would then know what it was all about. Certainly it was the intention to find out a little more. When one of my noble friends likes to add even a little more to his knowledge, I hope the noble and learned Lord will refrain from rebuking him.
THE LORD CHANCELLOR: I was not rebuking him at all, but I must say to the Committee that after some experience (equal almost to that of the noble Lord) in debates in this House, that one does not help the Committee by going

1391
off at a tangent and answering different points from those which are necessarily involved in the Amendment. There are plenty of other times when we can discuss the burden of proof, and I suspect the next Amendment but one will be one. One can only deal with one point at a time. I was asked to explain why the word "unlawful" is not acceptable, and why the words "an unfair industrial practice" are essential. I am sure that the Committee, even at this hour, would do well to abide by the ordinary Standing Orders of the House and stick to relevance and, no doubt, clarity.
LORD DAVIES OF LEEK: I like this very much indeed! I am talking about the phrase "unfair industrial practice". The noble and learned Lord would not accept "unlawful", but he accepts "unfair industrial practice". Then he has the audacity to say that I am being illogical because I talk about "unfair industrial practice". With all due respect, I think the noble and learned Lord is wrong, and radically wrong.
On Question, Amendment negatived.
1.18 a.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 203:
Page 15, line 37, at end insert ("and in any proceedings arising from this or any subsequent section of this Act it shall be for the employer to prove that he had acted otherwise").
The noble Lord said: The purpose of this Amendment is to ascertain the position in the Bill with regard to the fundamentally important matter of the onus of proof in all these related matters. At the moment, I am advised that the onus of proof probably rests on the employee, and that Clause 102 lends considerable support to that proposition. If that is so, then we have not only a serious case, we have an impossible situation to deal with. It is going to be quite impossible for an employee, who has been subject to an unfair industrial practice in the sense that he has been unfairly dismissed by his employer, to establish his case because he has not got the records, he has not got the details; he has only got his recollection, which may be a disputed recollection, of what took place. The employer has all these records and all the necessary information, and is probably represented by somebody who is an ex-
1392
pert and well qualified in the kind of discussion that arises in this case where it is not done by letter, and will have taken a careful note, and so on.
In my view, it is a quite impossible situation, if I am right in understanding that the Bill puts the onus of proof on the employee. I may not be right, but I have said sufficient to make clear my anxieties. I should not wish to develop my case at full length, if the Government would say that I am wrong or that they will look at this to meet my anxieties about the employee having the onus of proof resting upon him in matters of this kind. I beg to move.
EARL JELLICOE: The noble Lord has asked whether the Bill places the onus of proof for unfair dismissal on the dismissed employee. There are three matters which the tribunal will have to decide when there is a case of unfair dismissal before it. In the first place, was the chap, in fact, dismissed? It could be argued that he left voluntarily and that it must be for the employee to establish that he had, in fact, been dismissed. That is implicit in this Bill and it was implicit in the last Government's Bill. Secondly, what were the reasons for the dismissal and was the dismissal unfair or not? Quite plainly, it would be wrong—and I am in entire agreement with what the noble Lord, Lord Diamond, has said—to require the dismissed employee to establish the reasons for his dismissal. These reasons are peculiarly and solely within the knowledge of the employer himself and it is quite clear—and here I can give the noble Lord a quite unequivocal assurance—that the burden of proof rests fairly and squarely on the employer.
It seems to me that the provisions of Clause 22(4) make it absolutely clear that it is for the employer to establish the reason for the dismissal, and it is just as clear in this Bill as it was in the last Government's Bill. What will happen in practice is that, in bringing his complaint of unfair dismissal, the employee will show that he has been dismissed within the terms of Clause 21 and that he regards the dismissal as unjustified. All the employee has to do is to show that he has been dismissed. The employer will then have to show his reasons for the dismissal, and thereafter

1393
it will be for the tribunal to establish the facts and the motives for the dismissal of this man, and then to determine, in the light of those findings and the arguments and counter-arguments, whether in accordance with equity and the merits of the case the dismissal was, in fact, unfair. It is certainly my impression—and, much more important, I know that it is much more than an impression and is indeed a conviction of my noble and learned friend, the Lord Chancellor—that the burden of proof in this aspect of the matter rests squarely on the employer, under the provisions of the Bill as they stand.
But let me make one other point absolutely clear. I acknowledge the great importance of this issue. I acknowledge the disquiet—from reading in the Press, for example—which has been caused here, and I acknowledge the sincerity of the noble Lords concerned. They seem to be doubtful about the provisions of the Bill as at present drafted, and whether they make it clear beyond peradventure that in establishing the validity of the dismissal the onus of proof rests fairly and squarely on the employer. I understand that they are concerned about this and I am quite prepared, if there is any residual doubt in their minds having heard my explanation, or any explanation which my noble and learned friend will wish to give, to give an assurance that we are very willing to look hard at this point between now and Report stage and to assure the noble Lord that if need be an appropriate Amendment will be forthcoming to make what I understand about the onus of proof (and I think I understand correctly) clear beyond any shadow of doubt.
LORD BERNSTEIN: If the noble Earl really means that, why is there this difficulty about accepting the Amendment? The noble Earl suggested that we were disturbed. I am disturbed because, so far as I read the Bill, the burden of proof is not effectively imposed upon the employer as the noble Earl admits that it should be. The Amendment does that. The employer can under the present Clause 22 (if I may advance the discussion and bring that in) frustrate a claim for unfair dismissal by his bare allegation that he dismissed the employee for one of the reasons enumerated in Clause 22(1). This interpretation of the
1394
clause is suggested by the case law developed under the Redundancy Payments Act. Moreover, as I read the Bill, as soon as the employer shows a "good reason", which need not be a "fair" reason, the burden of proof shifts to the employee. What chance has an employee against a mighty, powerful employer? The Amendment makes it clear that the employer bears the burden of proof. It appears to me that if these Amendments are rejected, as I gather they are going to be, the procedure ostensibly designed to protect the employee against unfair dismissal is deprived of most of its value. I therefore cannot see why the noble Earl opposite cannot accept the Amendment.
THE LORD CHANCELLOR: The reason is that the matter seems to be clear beyond a peradventure and because my noble friend, out of consideration for the feelings of the Opposition, has agreed to examine it again. It is clear beyond a peradventure because the conditions in which dismissal can be allowed are related in subsection (1), and subsection (4) says clearly:
"…dismissal of an employee shall be regardel as having been unfair if no good reason for it is shown …."
So far from paragraph (b) of that subsection containing a derogation from it, it contains an addition in the employee's favour because it says that even if a good reason is shown—the good reason clearly referring back to subsection (1) —if the employer has acted unreasonably he loses his case. What could be plainer than that? My noble friend has said that, although it is as plain as a pikestaff, we will still look at it again. I do not know what more an Opposition can want.
LORD BERNSTEIN: I am sorry, but I approach this in a practical way. Somebody dismisses a human being. The person who makes the dismissal should prove his case.
THE LORD CHANCELLOR: That is exactly what the clause says.
LORD DIAMOND: I do not recollect the noble Earl having referred to pikestaffs, but nevertheless he made the position very clear, and I am more than grateful to him, because whatever the legal effect of these clauses is at the moment, it is quite clear that the noble

1395
Earl has given a very firm undertaking that if it is wrong it will be put right—and we are all agreed on what right is. I understand the exception which the noble Earl made in the first of the three matters which have to be considered.
EARL JELLICOE: If I may just correct the noble Lord, I do not think I said that if it was wrong it would be put right. What I think I said was that I would make certain to make assurances doubly sure.
LORD DIAMOND: That is just as good, and better that it has now been said a second time. Therefore I can only repeat my gratitude to him. He has not in fact—and I am not complaining about this—made any reference to the clause to which I referred him, Clause 102, but I am hoping that this is because he will consider this as he said he will be good enough to do, and that he will take Clause 102 also into consideration. It is not for me to attempt to argue as to what the legal effect of these clauses is. It is for us, however, to be quite sure that on the best advice available the Bill carries out our intentions. It is quite clear what the intentions of the Government and the intentions of the Opposition are, and they coincide completely on this point, although some of us might have been happier if the words here had been incorporated—and it may be that they will be incorporated. There are occasions when, even though the effect of a legal provision is clear to a lawyer. it is not clear to a layman who may wish to consider a provision without reference to a lawyer. Therefore it can be of advantage to have a simple declaratory provision to make it clear. Perhaps the noble Earl when considering what he has to consider, will, in addition, consider whether any doubts a layman may entertain might be removed in this way.
LORD SHACKLETON: I am grateful to the noble Earl who gave a most forthcoming answer. There are two points I should like to make. Inevitably, when we look at Amendments of this kind, we have to look at different parts of the Bill. It is not possible just to take the Amendment on its strict wording. The noble Earl's intentions are perfectly clear and I should not wish my noble friend to do other than withdraw the Amendment. It
1396
is not going to be possible, least of all in this Bill, to produce clarity for those who have to operate its provisions. I have had a good deal of experience in interpreting and administering the law—and this is a further strain on the employers; but nonetheless one that should rightly be put upon them. There are a number of guides to employers to enable them to interpret Acts of Parliament but, crucially in this case, the code of conduct is the important document.
There is one particular point I should like to put to the noble Earl. He says that it will be for the employee to prove he has been dismissed. The practice of good employers in large organisations and certainly in the Government service—and this was the case in the large firm I was in—is to write a letter of dismissal to the employee concerned so that it is as plain as a pikestaff that he is dismissed. I am not pressing this matter too much, but it is just open to argument how somebody can prove he has been dismissed when perhaps the employer says, "He wanted his cards. I did not force them on him". I should like to ask the noble Earl whether there will be a provision in the code of conduct on this point. It could be an important one. I am not disagreeing with the basic principles but it would be helpful if the noble Earl could comment on how, when it is a matter of dispute, the employee could prove he was dismissed.
THE LORD CHANCELLOR: I cannot say in advance what the code will say; but if two people give variant and divergent accounts of the same thing, the tribunal must make up their minds who is telling the truth. Under existing law, two witnesses, one on one side and one on the other, give accounts of a transaction, both of which cannot be true. It is the business of the court—in this case it will be the business of the industrial tribunal—to try, by asking questions, by examining the surrounding circumstances or looking for corroborative evidence, to find out who is telling the truth. If the employer said that the employee asked for his cards, that would be a complete answer to a charge of unfair dismissal. If the employee had said, "I am finished, I want my ", that is not a dismissal. On the other hand, the employer may be lying. The employee may say, "Not at all; the employer gave them to me and

1397
said 'You can pack your traps and clear off'". But the employee may be lying. Where there is a dispute of oral evidence it is the business of the tribunal to decide who is telling the truth.
It is, of course, possible to provide in the code of industrial practice for a written notice of dismissal; that would be open to the Secretary of State to do, but at this stage I cannot—the noble Lord will not expect me to—pre-empt the code of industrial practice as to whether written notice will be required in every case, however small the business and whatever the nature of the employment. Obviously, it is something that we shall have to look at.
LORD SHACKLETON: It would be very helpful if the noble and learned Lord were able to pre-empt the code of practice; then we could move more quickly on this. The point here—I am sure that the noble and learned Lord takes it—is whether the onus of proof should be on the employer rather than the employee. We are not pressing this. I am asking noble Lords opposite to consider it and we might return to it later. But the noble Earl was clear that the onus of proof for dismissal was on the employee. If the onus was on the employer, it would ensure that satisfactory dismissal procedures, of a kind widely used in industry, became general. I am not asking noble Lords opposite to go any further than to consider this point. It may well be that they could give some sort of assurance. The noble and learned Lord has said that we have complained before now about the absence of the code of industrial practice. It does become clear that some of the suspicions with regard to this Bill would be reduced if the code were available, but all I ask is that they will look at this point.
LORD WELLS-PESYTELL: I do not want to prolong this discussion, and I may have misheard my noble friend, Lord Shackleton. I thought he said that the noble Earl, Lord Jellicoe, had said that the responsibility and onus about proving dismissal was on the employee. My recollection is that when we were discussing it the noble Earl said that in Clause 22 the responsibility, the onus of proof, was on the employer. I hope that this will be so because from my
1398
experience as a magistrate, I think there is a growing feeling that the complainant is very much at a disadvantage these days and the defendant very much at an advantage. In a sense, this is a kind of complainant-defendant situation. There is abundant evidence available that the complainant is at a disadvantage and the defendant at an advantage, and I welcome what the noble Earl said, that it was his view that in Clause 22 the onus of proving responsibility was on the employer, and not on the employee.
THE LORD CHANCELLOR: The noble Lord has misunderstood what my noble friend said. I will repeat it in language which I hope cannot be misunderstood. If an employee complains that he has been unfairly dismissed, he must prove that he has been dismissed. Once he has proved that, it is for the employer to justify the dismissal. The burden of proof is then on the employer to pr we that the dismissal was not unfair. I hope that is quite unambiguous. That is what my noble friend said and—without prejudice to the request of the noble Lord, Lord Shackleton, that we should consider the subject—that is what the clause means as it stands; it cannot mean anything else.
LORD SHACKLETON: The noble and learned Lord said "without prejudice to the request I made". May I ask whether the noble and learned Lord is going to consider the point that the onus of proving dismissal should be on the employer instead of on the employee? I only ask him whether he will consider this.
THE LORD CHANCELLOR: Of course it will be considered, though I must tell the noble Lord that I think the clause as drafted does justice to both parties. I would not refuse, particularly at this hour, to consider anything put responsibly from the Front Bench opposite but I do so without any commitment at all.
LORD DIAMOND: In those circumstances, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 20 shall stand part of the Bill?
1.40 a.m.
LORD STOW HILL: On the Motion that Clause 20 stand part of the Bill, I should like to put a question to the Government Front Bench which raises an important issue of principle. Clause 20 is expressed as applying to every employee. In the Bill two words are used—worker and employee. If we turn to Clause 158 we find that they are quite differently described. On page 118 your Lordships will see the definition of "worker" and on page 115, the definition of "employee." The definition of employee is far narrower than the definition of worker. Worker includes employee. An employee is defined on page 115 as being
"employed on a contract of employment."
I would add that in a legal sense that has a well-understood meaning. It means a person who is working under the terms of a contract in which he is under the direction of his employer.
If we go back, we find that the definition of a worker is wider in this sense: that in the first place it embraces an employee, but in addition it embraces persons who are engaged on a contract to perform personally any work or services. That is a distinction which is well recognised in law. If we ask what is meant by a person employed under contract, we envisage a situation in which a person is not engaged to work immediately under the supervision of his employer but brings to his task an expertise of his own. He may be a highly skilled artificer who is going to do the work in his own time, perhaps at his own workshop, and not under the immediate eyes and supervision of the employer. That is the distinction recognised in law between a person engaged under a contract of employment and a person engaged to do personal services.
The question I want to ask is this. Why is Clause 20 limited to employees, whereas the other basic clauses in the Bill, dealing with the rights of those who are working for others and beginning at Clause 5, extend to workers? We are discussing Part II of the Bill, which includes both Clauses 5 and 20, and Part II is headed, Rights of workers." When one looks at Clause 5, which is a basic clause setting out the rights of persons who work for others, one finds that that
1400
applies to every worker. If one looks at Clause 6, which deals with pre-entry agreements, one again finds that that deals with workers. If one goes on through these clauses in Part II of the Bill and looks at those, for example, which deal with agency shop agreements, one finds that they also apply to workers—the wider expression, not the narrower expression. Equally, if one looks at the new Clause 16, which deals with the new closed shop agreement, one finds that that is a clause which uses the expression "workers" and not the expression "employees".
I should like to ask the Government what is the thinking which underlies the transition from the use of that far wider expression "workers" in the earlier clauses to the narrower word "employee" in Clause 20, again another basic clause dealing with the rights of those who work for others. I wondered whether the reason for the transition could be this: that Clause 20 is dealing with dismissal. Could it be in the mind of the Government (I ask myself) that dismissal in the sense in which it is dealt with in Clause 20 could only apply in the strict sense to an employee, a person engaged on a contract of employment? But when I look back to page 4, which contains part of Clause 5, I see the same word "dismiss" used in line 13 equally of the worker; that is to say, the worker, including the employee and the person who performs services.
I feel puzzled (I say this in all sincerity, and I really am asking for information about this: I am not merely trying to make a captious point) why there should be a transition in Clause 20 from the wider word workers" to the narrower word "employee". I have no doubt that it is based upon some fundamental thinking as to the philosophy on which this Bill is constructed. But it does have this effect. Clause 20 gives these rights in relation to unfair dismissal. It gives those rights to far fewer people when they are limited to employees, in the strict sense, than it would give if it included workers in the general sense. Therefore the effect of this transition is greatly to limit in numerical terms those who can avail themselves of the rights given under Clause 20. I am sure that there is a reason, and I am asking what the reason is, because I would respectfully submit

1401
to the Committee that unless there is an adequate reason one asks oneself seriously: is it right to deny to workers who do not fall within the strict category of employees under a contract of employment the rights which Clause 20 and the succeeding clauses confer to obtain compensation in the event of unfair dismissal? I should be most grateful if I could have the noble and learned Lord's observations in answer to that question
THE LORD CHANCELLOR: I think I can give the answer, although I will try to give it as briefly as I can, prefacing my remarks with the observation that the thinking is exactly the same as the thinking in Clause 33 of the last Government's Bill, where exactly the same language was used, for I apprehend exactly the same reason. The noble and learned Lord is quite right in drawing a distinction between "worker" and "employee", because in the definition clause "workers" includes a number of classes of person, particularly those who provide services, such as those in the Armed Services, and particular persons of that type who do not have a contract of employment in the ordinary sense, although unfair dismissal will certainly apply to civil servants. The word "worker" is wider than "employee" for exactly the reason the noble Lord has given. Nearly all workers are employees because nearly all workers work under a contract of employment. The statistics of those who work under an independent contract for the provision of services must be in a very small minority.
The noble Lord asked why Clauses 5, 6 and 16 apply to workers and not employees. The answer, broadly speaking, is: because they deal with their rights to belong to a trade union. The rights to belong to a trade union must therefore be co-terminous with the larger of the two classes. He then went on to ask himself why the concept of unfair dismissal applies only to employees and not to all workers, although the vast majority of workers are in the class of employees. He gave himself a perfectly adequate answer; namely, because the concept of dismissal is applicable strictly to a contract of employment. Up to that moment his reasoning was impeccable the trouble was that he then misled himself by looking at Clause 5 and page 4 of
1402
the Bill. It says that in certain circumstances it would be an unfair industrial practice for any employer, or for any person acting on behalf of an employer, to dismiss, penalise or otherwise discriminate against a worker by reason of his exercising the right to belong or not to belong to a trade union. His speech unfortunately stopped at the word "dismiss". The reason why "dismiss" appears in Clause 5(2) in that context is precisely because, although it is not true that all workers are employees, it is true that all workers are workers. It was necessary to put that word in because the vast majority of workers are under a contract of employment and are therefore liable to be dismissed. If he had gone on to read the rest of the phrase:
"penalise or otherwise discriminate …"
He would have seen that the reason why "dismiss" did not stand alone was precisely because the class of worker was wider than the class of employee, and the words:
"penalise or otherwise discriminate against …"
were precisely designed to cover the whole class and not only part of it. The reason why unfair dismissal is unfair dismissal is because "dismissal" is a term of art applying to contracts of employment. That is why, both in the Labour Bill and in the Conservative Bill, the word "employee" is used deliberately of the class of persons who have a right to complain of unfair dismissal.
LORD STOW HILL: If the tone of that reply had been more temperate I should have expressed my thanks to the noble and lee rued Lord, but—
THE LORD CHANCELLOR: The noble Lord asked me a clear question as to why it had been done and I tried to give him a clear answer. If I have caused him any kind of offence, I am sorry; I thought that at the hour of ten to two in the morning, if he asked a clear question a clear answer was what he required. If he had wanted a woolly answer I would have tried to cook up one for him.
LORD SHACKLETON: May I interrupt? Whatever the hour, the debate from this side of the Committee is being conducted in calmness and not in excitement. I beg him not to reply to my noble friend as he just has done.
THE LORD CHANCELLOR: With great respect, it is the noble Lord's noble friend who has, for some reason, taken offence, when no offence was intended. He asked a plain question; I was at some pains to give him a plain answer. What can be more civil than that'? There was no excitement about it at all until the noble Lord accused me of intemperance, which in itself is a phrase which is liable to be misunderstood.
LORD SHACKLETON: No offence, I am sure, was intended, but if the noble and learned Lord wishes to hear what he sounds like I suggest he goes and listens to the recordings of our debates.
THE LORD CHANCELLOR: I know very well what I sound like, for I have been at them.
LORD STOW HILL: I do not want to prolong a debate in any spirit of distemper. All I am saying is that if the noble and learned Lord did not intend to give offence, and did not think he had, I am very sorry for him. But may I go back to the point for just one moment, he said that my logic was faulty in that I had stopped reading the whole of line 13 on page 4. All I can say to him is that I cannot understand why the word "dismiss" is not appropriate also to a person who is engaged to perform services. If I employ a skilled artificer and then I dismiss him and say, "I don't want any more of your services" it seems to me that in using of him the term "dismiss" I am using a perfectly ordinary, appropriate term as understood in the English language.
I wondered whether that was the reason. It may well be that that was the reason why the distinction was made in the Government Bill. It does not follow that the distinction is necessarily a right one, and I was simply asking for information as to whether it would be right to deprive persons who were engaged on contracts for services of similar rights to those which are given under Clause 20 to employees; namely, if they have been unfairly dismissed in the sense in which that word is used in Clause 20 and the subsequent clauses, why should a person who is engaged on a contract for services not have rights equal to those which are vested in the employee by Clause 20?
1404
I have not had an answer to that, and IT there is an answer I should like to hear it.
THE LORD CHANCELLOR: Well, I will try to give it again. At the expense of receiving another broadside of complaints that I am being intemperate, I still say that the word "dismiss" is appropriate to a contract of employment. I cannot accept the view of the noble Lord that a man, because he is a skilled artificer, is not a person who may be working under a contract of employment. The vast majority of them are, and I find it quite difficult at this hour to contemplate one who is not, unless he belongs to that rare class in the building trade of whom most of us disapprove.
LORD STOW HILL: I am sorry; I still do not think I have received an answer to my question. If I asked somebody to paint a portrait of somebody else and engaged him to do that, and when he started working on it I suddenly tell him he is finished, he is out, I should have thought that in ordinary parlance I am dismissing him. I do not quite see why in those circumstances he should not have the same sort of right as a person who is engaged on a contract of employment. I have not yet had an answer to the question I asked as to why he should not. It is no good saying that most artificers will be employees. I daresay they will. Some will not. It is quite well known that some skilled persons who bring considerable skill to the work are regarded as not employed on a contract of employment. Why on earth it should be open to dismiss them unfairly, but not to dismiss employees unfairly, I simply want to know. I asked what I thought was a perfectly simple question, and I certainly did not want to generate the heat which has hung around this debate ever since.
THE LORD CHANCELLOR: There is no heat on my side, I can assure your Lordships; only, I hope, extreme clarity. If you engage a portrait painter to paint your portrait and repudiate the contract, you are liable to damages for breach of contract, but not for wrongful dismissal. I thought to a professional gentleman of the noble Lord's experience this was something which would not require saying even at 2 o'clock in the morning.
LORD STOW HILL: I am sorry to continue this discussion, but if you dismiss wrongly a person who is engaged on a contract of employment, I should have thought it was trite law that everybody knew perfectly well that you commit a breach of contract; in precisely the same way you could have been sued for breach of contract for wrongfully dismissing him. I should have thought that that was elementary law, and you are in precisely the same position if you dismiss a portrait painter: you are liable for breach of contract. The only reason one does not sue under the terms of this Bill for unfair dismissal is that there is a new remedy set up; namely, your right to claim compensation for an unfair industrial practice. I make no complaint of that, but really the distinctions which the Lord Chancellor is trying to draw will not hold water.
VISCOUNT DAVENTRY: Supposing I employ a lawyer and I get fed up and finish with him? Am I sued for damages?
THE LORD CHANCELLOR: The answer is that if he is the Lord Stow Hill, apparently yes, but if he is only the Lord Chancellor, no.
LORD DIAMOND: This is, of course, an important clause—I am referring to Clause 20—but it is a fairly short clause, and we have now had a pretty full discussion on the various aspects of the various matters which the clause throws up. I should not think, therefore, there is any need to continue the debate further on this clause.
Clause 21 [Meaning of "dismissal".]:
2 a.m.
LORD DELACOURT-SMITH LORD DELACOURT-SMITH
moved Amendment No. 204:
Page 16, line 6, leave out ("but only if").
The noble Lord said: I beg to move Amendment No. 204. Let me say at the outset that I am well aware that the words which I am proposing should be left out appeared in substantially the same context in Clause 33 of the Bill which was put forward by the previous Administration; but, of course, that Bill did not have the experience of passing the refining fire of examination by the two Houses, and it may well have been
1406
that had it done so these words would have given rise to some criticism and some comment. This is, in a sense, a continuation of the discussion which took place on the last Amendment, when the point was made, as I understood it, by the noble and learned Lord, the Lord Chancellor, that the onus for proving dismissal was on the employee but the onus for proving that the dismissal was not unfair was on the employer. I am addressing myself to the position of the employee, who has the task of proving that he has in fact been dismissed. It appears to me that the words which I am proposing to leave out make his task more difficult, and unnecessarily and excessively difficult.
We live in a pretty complicated industrial world, and in the circumstances of employment there can arise, I think noble Lords on both sides of the Committee will agree, a number of ways in which the employer can, as it were, force the employee to dismiss himself. There are many ways in which by changing his position in the organisation he can produce a situation in which an employee is virtually forced to r0esign. There are, for example, jobs in which men are able to earn all kinds of additional payments, for example, by tips, and to move a man from one such job to another job where that opportunity does not arise may well produce such a drastic change in his standard of living that he resigns his employment, dismisses himself. Or a man may work largely on commission and may find himself, as he feels unfairly, moved to some part of the country or some field of activity where his corn-mission earnings are going to be very low indeed, and a man who has perhaps spent many years in such employment finds himself put in a position where his task in earning the standard of living to which he is accustomed becomes impossible and he is back in the position he would have expected a new entrant to occupy.
But I do not think it is for me to spin out, as I could, a long list of hypothetical cases. I merely want to make the general observation that there can surely be within the knowledge of all of us circumstances in which an employer may rid himself of an employee he does not want by constructing a situation in which that employee will virtually sack himself. I am not for one moment

1407
suggesting that all the cases in which individuals feel that they have been so treated can be established as cases in which in reasonable justice the employee can claim that he has been dismissed and has not in any true sense resigned of his own accord. At least an employee ought not to be debarred by a qualification as drastic as this phrase imports from seeking to establish a case before the industrial tribunal that he has in fact been dismissed and is therefore entitled to seek to establish the further proposition that his dismissal has been an unfair one. I beg to move.
THE LORD CHANCELLOR: The noble Lord very fairly pointed out that the task in front of me was one which would have faced a Labour Minister in the last administration had he been faced with a similar Amendment to his own Bill. I am bound to suggest to the Committee, not that the noble Lord is in any way ill-advised to discuss this Amendment but that the reason why it cannot be accepted would almost certainly have been given by a Labour Minister defending his own Bill. And the reason why the same language appeared originally in the Labour Bill was not because they embraced it out of love but out of very good advice from those who have to draft Bills and who know that there must be a limit at which to draw the line.
Of course, I fully accept that employers can treat their employees badly and that this may, and I hope often does— and certainly should—result in the employee going elsewhere to give his services. That is true; but in the ordinary course this would not be described as "dismissal". In those circumstances you could say he was a bad employer. You might, and in many circumstances could, say he was breaking his side of the bargain, and in that case he would find himself faced with an action in the courts or with proceedings under Clause 108 in addition or in alternative to those contemplated in this clause. But in the ordinary course it would not be dismissal. This is not the right of compensation for unfair treatment resulting in resignation, which is what the noble Lord is contemplating. It is in fact compensation for unfair dismissal; and I must say to the Committee that although nobody would spare a moment's sympathy for the
1408
employer who behaved in this way or would wish to spare him a moment of anguish, if "anguish" could be fairly or legitimately achieved, you would get in the end a wholly unworkable clause which would turn what is intended to be compensation for unfair dismissal into compensation for unfair treatment leading to voluntary resignation; and I could not advise the Committee to extend it to that point.
There, admittedly, is the point of difference. If you are going to allow a right of compensation for unfair dismissal, which is one of the basic rights accorded by the Bill, I think you have to hedge it about with language which limits it to dismissal and makes it fair to the employer as well as to the employee. One can imagine that every kind of false allegation could be made by an employee who had voluntarily resigned about the employer's conduct; and the tribunals would be clogged with a whole variety of claims—some of them probably unverifiable and others frankly frivolous. I am afraid I must advise the Committee to stop where the Labour Government stopped and to stand on the point on which they stood. I do so without rancour because I recognise that there are cases of unfair treatment which are not covered by this clause, but this is a clause about unfair dismissal, and unfair dismissal is, I fear, where it must stop.
LORD BEAUMONT OF WHITLEY: May I tell the noble and learned Lord that we on these Benches appreciate his brief and pertinent replies to questions, and ask him whether the words which this Amendment would seek to leave out make any difference to the clause at all? If it was left that an
"employee shall be taken to be dismissed by his employer"
if (a) or (b) for the purposes of this Bill, could he in point of fact be assumed to be dismissed for the purposes of this Bill by any other point? Does it really add anything?
2.12 a.m.
THE LORD CHANCELLOR: The noble Lord asks a very pertinent question and I think I should have dealt with it in my reply to the noble Lord, Lord Delacourt-Smith. The answer is, yes it does. I am bound to say I asked myself the question so it is not, I hope, a silly

1409
one, otherwise we are both in the same boat. I am sure on reflection that the draftsman is right in telling me that it does because the effect of the Amendment would be to leave it quite uncertain as to whether the circumstances of dismissal in subsection (2)(a) were exhaustive or not. The better view—although not, I confess, the certain view—is that they would not be exhaustive and it would open the door to the kind of very reasonable but, I think, for the reasons I have given, unacceptable type of claim which the noble Lord, Lord Delacourt-Smith, contemplates. It would leave one in doubt. Of course, those who think that the arrière-pensèe behind this Bill is to provide pickings for lawyers would be surprised to find an Amendment which has such attractive possibilities in front of it, but I must out of all candour tell the noble Lord that it would make a difference, and the difference is that it would make the clause obscure.
LORD DELACOURT-SMITH: I do not think it has ever been the view of anyone on these Benches that the arrière-pensée
behind the Bill was to provide additional employment for the legal profession. They merely regarded it as an incidental consequence and not the principle purpose of the Bill. But I really do wonder whether we ought to leave the matter where the noble and learned Lord proposes that we should. He has accepted, very fairly, that there is a point of substance here and there are employers of a particular type of meanness and ingenuity combined who can produce a situation which would in fact enable them to escape entirely, in respect of these situations which they create, the changes which, with general consent, it is desired to make.
I am not quite sure whether the noble and learned Lord put his argument mainly on the fact that one could go too far, as it were, in this: one had got to be a little restrained and not pursue the employers too far. The Bill goes quite a good way but was he suggesting perhaps that it should not go too far? Or was he basing his argument on the fact that this would produce cases in general of exceptional complexity for a tribunal to examine? Or was he putting the argument that this would add a load to the tribunal, in terms of the sheer number
1410
of cases, which the tribunal ought not to be expected to bear? I am bound to say that I feel unhappy at leaving the matter where it is. I wonder whether the noble and learned Lord could give an assurance to look at this problem and see whether anything can be done about it?
THE LORD CHANCELLOR: It would be discourteous to say that I would not consider it at all, but I am pretty sure that however often I look I am almost certain to come to the same conclusion. I would not answer the noble Lord's question about which of the grounds I was really standing on; I think they are cumulative and not alternative. I think these cases would clog the tribunals. When you bear in mind that once dismissal has been accepted the onus is on the employer to justify it, and not on the employee to establish that it was unfair, the fact that there was a sort of grey area in which people parted on bad terms by mutual consent which could be represented as a dismissal would do a lot of injustice to marginally good employers. I think also the employee has his rights under Clause 108, or under the ordinary rights of his contract if they have been seriously infringed. I feel that there is the class of case to which the noble Lord has rightly referred; therefore I am not brushing it aside as an unreasonable case at all. These cases will exist, and if we stand pat, as I am probably doing, we shall have to face the fact that they do exist and that we are not coping with every case. But since the noble Lord asks me to carry the point back and see whether anything can be done about it, I will do that, on the understanding that I am making every possible discouraging noise.
LORD DELACOURT-SMITH: That is not very helpful, if I may say so, but in all the circumstances I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
LORD DELACOURT-SMITH LORD DELACOURT-SMITH moved Amendment No. 205:
Page 16, line 12, at end insert—
("or
(c) any suspension of 7 days or more within a period of 6 weeks with or without pay shall be regarded for the purposes of this Act but only for those purposes as a permanent dismissal.")
The noble Lord said: This is, I suppose, in some ways a rather special case of the type that I was describing to the Committee on the earlier Amendment. It is the case where an individual worker finds himself subject to suspension, and we are suggesting that a suspension which is unreasonably maintained, for an unreasonably long period, should be tantamount to dismissal. It is then established that a dismissal has taken place, and the employee can, if he wishes, seek to take the case to the tribunal. The experience of being suspended from work, even if it is suspension with pay—and still more, of course, if it is suspension without pay—is an exceedingly unpleasant and humiliating experience for any worker to undergo. It is a course which should, in our view, be followed by an employer only in serious cases. It certainly should be continued by an employer for longer than the period we have indicated only in cases of very great seriousness. We therefore put this Amendment forward as an attempt to deal with at any rate one type of case of behaviour of the kind that we were discussing in more general terms on the earlier Amendment. I beg to move.
LORD BERNSTEIN: I wish to support this Amendment. It would enable a worker to claim compensation for unfair dismissal in a case in which he was not formally dismissed, but was suspended. In the absence of such a clause the employer could circumvent the new provisions, by repeatedly suspending the employee and in fact forcing him out without dismissing him. I think that compensation for unfair dismissal should generally be available in a situation in which an employer, by his conduct, forces his employee to quite employment. It does not seem to me a very difficult Amendment for the Government to accept. I must say I find it rather surprising that they have not accepted any Amendment so far. True, there have been promises. Is it not possible that at some time during the course of our nearly three weeks' debate the drafters of the Bill could have been wrong? There is a difference between the noble Lords opposite saying, "We are not certain we are right", and saying, "It is possible we are wrong".
EARL JELLICOE: The noble Lord, Lord Delacourt-Smith, always puts his points so attractively that one finds oneself half taken down the stream before one can manage to swim back, and he has done so again. I am afraid I must inform the noble Lord, Lord Bernstein, that I am again going to advise your Lordships that there are serious objections, in our view, to this particular Amendment. May I just say to the noble Lord, in passing, that I do not think he should worry unduly if one is not at the Committee stage, able to say, "Snap" to a particular Amendment which is proposed. When we say—and I have said myself on quite a few occasions in the short time I have been engaged in discussing this Bill—that we will look at a certain point, it is a term of art, and it has a very definite significance. These are not undertakings lightly given. He will know, when he has been with us a little longer, that when one says that—at least I hope this is so, and it is certainly so in the case of everybody speaking from this Despatch Box—it entails a very definite assurance and a commitment, on the part of the Government. I should like to make that absolutely clear.
LORD DIAMOND: I am most grateful to the noble Earl. I interrupt him, and I apologise for doing so, only to point out that he has unduly restricted his language. There is also a phrase, "Undertake to look sympathetically". That also has a meaning, and a more clearly understood meaning. If he would not be unduly restrictive, we should like to hear what it sounds like coming from his lips.
EARL JELLICOE: Within my own immediate recollection I have gone quite a long way beyond that, and I have said, on certain occasions, that I would undertake to produce an Amendment myself, and that undertaking was not lightly given. There are four grounds why the noble Lord's Amendment worries me. In the first place, it is the Government's view that the unfair dismissal provisions of this Bill should not extend to any action by the employer other than in circumstances where he terminates a contract of employment. There is a fairly respectable pedigree behind that attitude. One will find this embedded in the I.L.O. recommendation on unfair dismissals,

1413
from which a great deal of this stems. So far asI know, nothing more was envisaged in the holy writ of the Royal Commission's Report. As I need hardly remind the noble Lord, Lord DelacourtSmith, the Bill published by the last Administration—I do not say that this is necessarily the strongest ground on which to stand, but at least it is a ground on which I stand at this moment—included no such provision. The pedigree for the limited approach in this particular aspect is a reputable one.
The second reason is the practical one that to extend the provisions as suggested in the Amendment could, in certain instances, create very real difficulties for employers in industries where contracts of employment provide for layoffs in certain circumstances, sometimes, of course, with guaranteed pay provisions. I know that those agreements are not always very popular—I think there is a British Leyland agreement at the moment which is not the most popular one—but they do exist.
The third reason is that special measures are already being taken—we shall be coming to these when we discuss a later clause this morning— to do everything possible, at least at the initial stage of the operation of the Bill, to keep the case load, which is going to fall on industrial tribunals as a result of the unfair dismissal provisions, to manageable proportions, and to extend their jurisdiction to suspension cases would undoubtedly add a good deal to that case load and exacerbate this difficulty. That would have one extremely undesirable effect—and undesirable for noble Lords opposite, judging by Amendments which we shall be taking reasonably shortly—of almost making it necessary to extend the initial qualifying period which I know they do not like any more than we do. We believe that protection of the kind suggested in the Amendment is a matter for voluntary association and collective agreement.
There are some very real difficulties and these are more than drafting points in the procedure which is suggested, and which is implicit in the Amendment. For example, how could an employer agree to reinstate an employee whose contract was not terminated, but who had been suspended because of a shortage of work? I am using that as an example, because
1414
reinstatement is the primary remedy under the unfair dismissal provisions. Or would such an employee be able to bring a claim of unfair dismissal every other week if he was put on short time? And is it reasonable to require an employer to face a claim of unfair dismissal when he suspends a worker on full pay? I know that the noble Lord talked of suspension without pay and with full pay, but in the case of full pay would it be reasonable? Those are specific difficulties. But the main reasons why I cannot advise noble Lords to accept this Amendment are the primary ones which I gave at the outset of my remarks.
LORD DELACOURT-SMITH: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 21 shall stand part of the Bill?
LORD DELACOURT-SMITH: I wonder whether this is the appropriate point at which to ask the noble and learned Lord the Lord Chancellor whether he would amplify his remark about the bearing of the dismissal provisions on the Civil Service.
THE LORD CHANCELLOR: I said what I said advisedly, because someone passed me a note. It states that if Lord Stow Hill asks whether the Civil Service are covered for unfair dismissal, the answer is, Yes. So I am pretty sure that I was right. Clause 154 states that,
"…the provisions of this Act shall have effect in relation to Crown employment and to workers who are Crown employees as they have effect in relation to other employment and other workers."
The Bill distinguishes between the rights of workers and the rights of employees, but I should have thought it was clear that in principle the civil servant was covered by these clauses. I am not sure how much more amplification is wanted. There is probably more than I could say, but my opinion is that Clause 154 applies the Bill to the Crown. If there is any point on which I can help, perhaps I could be asked.
LORD GARDINER: I have not heard the previous discussion, but I was in a case in which it was held after a lengthy argument and all the authorities that civil servants are not employees.
THE LORD CHANCELLOR: My noble friend has come to my legal aid. If the noble and learned Lord will look at Clause 154(3), he will see that it reads:
"For the purposes of the application of the provisions of this Act in relation to Crown employment in accordance with subsection (1) of this section"—
Subsection (3) is the one I sought to summarise, and I do not think at all inaccurately—
"… any reference to dismissal shall be construed as a reference to the termination of Crown employment; …any reference to redundancy …"
and so on. I think the combined effect of subsections (1) and (3) is to apply unfair dismissal to Crown employees. This is the feeling I have at the moment.
LORD GARDINER: I quite appreciate about Crown employees, but civil servants are not Crown employees. This was a very long case (the noble and learned Lord may remember) arising out of what somebody else called "the Selwyn-Lloyd freeze". They had got an award in their favour for people like liftmen and other servants of the Crown; the Government simply said, "We are not going to pay", and they issued a writ saying, "We are entitled to the money".
THE LORD CHANCELLOR: I think I know the case.
LORD GARDINER: I forget the name of the case. I think it was against the War Office; but it was held that they are not employees.
THE LORD CHANCELLOR: I think the noble and learned Lord—
LORD SHACKLETON: I think I might try to help on this occasion, because I was heavily involved in this. As I understand it, they are not employees, and the Bill, of course, does not talk about them as employees. It talks about Crown employment.
LORD GARDINER: Section 154.
LORD SHACKLETON: It talks about Crown employment.
LORD GARDINER: No; it talks about Crown employees.
LORD SHACKLETON: We will come on to this but, as I understand—and the Minister in day-to-day charge of the Civil Service Department will no doubt be
1416
able to help, as I have tried to help in the same way—in the Race Relations Act, they are deemed to be employees for the purpose of the Act; but it does not, as I understand, affect their status that they are not operating on a contract of employment. I know we had many arguments, which is why we had it in the previous Bill. This is one of the few references to the previous Bill that I find quite relevant.
2.33 a.m.
THE LORD CHANCELLOR: This is absolutely splendid. I seem to have friends in all quarters of the Committee assisting me in my rather ungrateful task, and I should like to express my appreciation to noble Lords behind me and in front who are holding up my arms in battle with my predecessor. But I still think I am right. I quite agree that the noble and learned Lord has a point. It is quite impossible for a civil servant in the ordinary sense, at any rate in the administrative class, to bring an action for wrongful dismissal. That is quite clear; and I think that is the point he has in mind. But if he would look at Clause 154, I think I should prefer the construction put upon it by the noble Lord, Lord Shackleton, because it says this in subsection (1):
"Subject to the following provisions of this section, the provisions of this Act shall have effect in relation to Crown employment and to workers who are Crown employees." —
thereby implying that they are two separate things—
"as they have effect in relation to other employment and to other workers".
Then, subsection (2):
"In this section (subject to subsection (5)) 'Crown employment' means employment under or for the purposes of a government department, otherwise than as a member of the naval, military or air forces of the Crown or of any women's service administered by the Defence Council, and 'Crown employee' means a person who is for the time being in Crown employment or (where it has ceased) was in Crown employment."
Then comes subsection (3), which I have already quoted. I think that rather establishes the point made by the noble Lord, Lord Shackleton, which is the same point as was contained in the rather succinct notice which I was given and which prompted my original remark, which I was asked to amplify, as I hope I have now done.
Clause 21 agreed to.
Clause 22 [Fair and unfair dismissal].
2.35 a.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 206.
Page 17, line 6, leave out from ("be") to second ("the") in line 7, and insert ("held to have been unfair if it is not shown that the reason for the dismissal (or, if there was more than one reason for it,").
The noble Lord said: I beg to move Amendment No. 206. Perhaps it would be convenient at the same time to discuss Amendment No. 207, which is a shorter, alternative form of achieving the same object. The object of this Amendment is to underline the fact that, to draw the attention of the Government to the fact that, and to ask for an explanation of the fact that whereas the previous clause reads:
"…an employee shall be taken to be dismissed by his employer if, but only if…"—
that is to say, it is in a very restricted form—in this part of the Bill, under Clause 22, there is such restriction. The effect of that will presumably be that fair dismissal will now be made up of two categories: the first category being those specified in Clause 22(1)(a), (b), (c) and (d) and the second category being those not there specified. Whereas under Clause 21 only the category specified counted, here, where we come to fair dismissals, the employer may justify his action as having been a fair dismissal, not only if he acts within paragraphs (a), (b), (c) and (d) but also if he acts in an unspecified way outside paragraphs (a), (b), (c) and (d). There is a difference in treatment between the two clauses which needs explanation. It seems to us that the more restrictive method (which is contained in either the first Amendment or the second Amendment) would be a more satisfactory way of approaching the problem. I beg to move.
EARL JELLICOE: Before turning to the Amendment, I should like to make one thing absolutely clear. It is that we, no less than noble Lords opposite, believe it is now high time that we provided clear, straightforward remedies against unfair dismissals in this country—remedies which are to be found in the legislation of almost every other major industrialised country in the world today. As I have sought to address myself to this legislation it has struck me with considerable force, from reading Donovan or the various research projects which
1418
the Department of Employment have initiated, how exceptional—and "exceptional" in a bad sense—is our position at the present time. I should therefore like to make it clear that we agree with I.L.O., with Donovan, with In Place of Strife, with the last Government's proposed legislation and, not least, with our own Fair Deal at Work, that this is a gap in our industrial relations which we must close or seek to remedy. I do not think there is any dissent between us whatsover on that point.
That said, I should like to make clear that the definitions of unfair dismissal in this Bill are, in substance, the same as those in the previous Government's Bill; but in our view they have the merit of being a good deal more simple and understandable. The proposals in the noble Lord's Amendments and those Amendments to which we shall be coming shortly would involve us in a whole battery of double and triple negatives. We 'have provided, quite simply, that dismissals on grounds of capability, conduct and redundancy—the trinity of reasons—should be fair, provided that the employer does not act unreasonably. I would draw particular attention to that extra reinforcement of the employee's position to be found in 'subsection (4)(b) of the clause. I believe it adds a very important and valuable safeguard to those available elsewhere in the Bill to an aggrieved employee.
As I understand it, the effect of accepting either of these proposed Amendments would be 'to make the three tests an exhaustive list of justifications for a fair dismissal. We should prefer not to go that far. We feel it important to recognise something which d think, judging from the debates in another place—though they did not cover this subject in great depth—the Party opposite have so far tended not to recognise; that there should be other reasons justifying dismissal outside those three main categories. We think that this is right and that it would be wrong if the tribunals were to be inhibited from considering, for example, such difficult issues as incompatibility. I believe this is the sort of issue which we should face. I am not thinking of what might be a rather bogus plea of incompatibility between employer and employee, but more of a

1419
practical situation in which an employer—particularly in a small firm where relations are intimate—might find himself faced with the problem of a couple of employees who were at daggers drawn with each other. It would be wrong if we were to make a dismissal on such grounds unnecessarily unfair. I believe that the tribunals, which will be seized with this whole question of dismissal, are admirably equipped to determine this sort of issue fairly, reasonably and equitably. For those reasons we do not think it would be right to make the trinity of fair dismissal provisions—capability, conduct and redundancy—exclusive, and that is why I find it impossible to accept the Amendment.
LORD DIAMOND: First, I must say with what real pleasure I heard the opening comments of the noble Earl, when he displayed his own attitude and that of the Government to the problem of unfair dismissal. This shows that we are thinking along precisely the same lines and that it ought not to be too difficult, therefore, to reach agreement on the wording. I was also much touched that he should find his experience in relation to the Bill exactly the same as I found mine. The more he read the Bill, the more he became impressed by the value of it. The more I read the Bill, the more I became satisfied that we are right in opposing it. But this is an acceptable part of the Bill. As the noble Earl explained this part is largely the provisions of the Labour Government's Bill published shortly before the General Election.
I realise that the noble Earl is on strong ground when in rejecting this Amendment he says that there is subsection (4)(b), which provides considerable strengthening of this point. I accept that completely, but I believe that he could have gone a little further and accepted this Amendment or some kind of restriction. It stands out in unfavourable comparison with the same provision in Clause 21, where the words "but only if" are inserted. We sought to have them removed and the Government explained why they are not prepared to have them removed. It is not sufficient merely to accept that it is helpful in Clause 21(1) but do not put the two clauses on a par. Therefore, I hope that 1420
the noble Earl will think once more about the situation. If he does not like the words in the proposed Amendment, does not like the double negative, though I do not see any other way we can do it, perhaps he can think of some other form of words which somewhat narrows the position. At the present time the situation is left wide open to claim fair dismissal, whereas under the previous clause the door was completely closed by the words "but only if". I think it reasonable to ask the noble Earl to consider this Amendment and in due course put down some other words which would somewhat restrict the possibilities of claiming fair dismissal. I do not think that that is asking too much and I should be grateful if the noble Earl would say one more word about this.
LORD STOW HILL: Before the noble Earl gets up, I wonder whether I may put one question as to the way in which subsection (4), which obviously is a most important and carefully thought-out subsection, is to be construed. May I take the case of an employee who clearly has been dismissed because of his lack of capability and therefore falls under subsection (1)(a) so that that subsection clearly operated. The result would be that, so far as that subsection is concerned, the words would come into effect:
"the dismissal of an employee by his employer shall be regarded as having been fair if the reason for it"
was as set out in paragraph (a).
If I may go to subsection (4), supposing that case comes before the industrial tribunal and subsection (4) is prayed in aid? Is the effect of subsection (4) that, although the employer can show conclusively that the dismissal of his employee was because the employee was incapable, the employer nevertheless does not succeed in resisting the claim successfully unless he can also show that there was some other good reason besides the fact that the employee was incapable? I think that is probably the construction of it. If it is, I certainly have no complaint; I think it is a very fair provision. But possibly the Government may feel that the words used are not quite unambiguous, and I should be grateful if I could have an indication of the Government's view as to their effect.
EARL JELLICOE: I think I should tread rather warily on legal ground which might not bear my increasing weight at the present time. But my understanding is that the tribunal, when they are faced with any one or all three of the trinity of the fair reasons have also to judge that against whether, in all the circumstances of the case, the employer has acted reasonably. This is a matter within their discretion. I do not think I can go beyond that. That is my, perhaps, plain man's understanding of what the position is.
LORD DIAMOND: I thought the noble Earl might say a word or two as to whether he was prepared, in view of the plea I made, to look further into the point I was making; namely, an acceptability of the comparison between Clauses 21 and 22, Clause 21 using the words "but only if", and their being completely restrictive, and Clause 22 being completely wide open.
EARL JELLICOE: I had subsided rapidly because I was slightly running for cover on this legal point which was rather beginning to worry me. I must be frank with the noble Lord, Lord Diamond, because he has been frank with me. I am not going to be able to meet him on this point. I have explained why, and it would be disingenuous of me to pretend that I am going to be able to meet him.
On Question, Amendment negatived.
2.54 a.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 208:
Page 17, line 8, after first ("the") insert ("lack of").
The noble Lord said: It might be for the convenience of the Committee if we discuss Amendment No. 209 with this Amendment, because, although the words are different and come in a different place, the reason behind the two Amendments is identical; namely, to strengthen the clause: and by "strengthen the clause" I mean restricting the right to claim a dismissal as having been fair. The reason I seek to strengthen the clause is that the noble Earl has said in relation to the last Amendment that he will maintain his position; that there should be completely unspecified categories, which may be endless in number, which would
1422
result in a dismissal being regarded as fair; and therefore one has to strengthen the position as much as one can to see that these unspecified categories do not result in too easy a reaching of that conclusion.
The noble Earl has been good enough to say that he, like we, takes the view that dismissals procedure should be clearly defined, and unfair dismissals should be prevented. In the first place, the first Amendment deals with capability, on line 8, and makes it clear that it has to be real lack of capability to justify a fair dismissal. The second one, at line 11, deals with conduct, and makes it clear that serious misconduct has to be present in order to reach a conclusion that the dismissal was fair. In both these cases it is making it a little more difficult—only a little more difficult—for an employer to establish the dismissal. In each of these cases we are departing slightly from the wording of the Bill introduced by the Labour Government, of which I was privileged to be a member.
The Government have completely altered the context in which these questions will be decided. They have altered the machinery of unfair dismissals procedure so much that it really has not only a different context but quite a changed significance. One has to do something to attempt to restore the balance by making the door to fair dismissal slightly narrower. I hope that I have explained the reasons for these two Amendments, the first of which I am now moving.
EARL JELLICOE: I should seriously like to help on this, but I am certainly not going to be able to help enough to satisfy the noble Lord, Lord Bernstein. Neither Amendment is acceptable as it stands at the present time. The difficulty with "lack of" is that "lack" could be taken to imply no capability whatsoever, or no qualifications at all. There may be the case in which there were circumstances where an individual had qualifications but they were not sufficient for particular employment. That is why "lack of" worries me.
Where an employer shows the employee's conduct as the reason for his dismissal the tribunal will, of course, under the provisions which we have been

1423
talking about (I think it is Clause 22(4)(b)) be required also to consider whether the employer acted reasonably. The dismissal would be regarded as unfair if the tribunal found that in all the circumstances the employer had acted unreasonably in treating the reason, in this case the employee's conduct, as a sufficient reason for dismissing him, when in fact after the evidence had been clarified and sorted out in the tribunal these three sensible chaps had come to the conclusion that the conduct, or misconduct, was in fact very trivial indeed.
The noble Lord suggested that here we had amended the last Administration's wording of the unfair dismissals provisions, and this is in fact the case; but I would point out that on the question of conduct the last Administration had refrained from attaching any adjective, or prefacing conduct with the word "serious". The sort of definition which noble Lords opposite have suggested here, "serious misconduct", is difficult for me to accept like that and I do not think I should be able to do so even after reflection. It seems to me to present difficulties. Serious misconduct would have to be distinguished from misconduct which was not to be regarded as serious, and I think it would prove extraordinarily difficult even with the reasonable provision to find the right definition here. Again there would be the problem of whether persistent minor misconduct would be equivalent to "serious misconduct". Those are the difficulties I see here, but I am sympathetic to the thought behind these two Amendments. I know I am going to get the noble Lord, Lord Bernstein, up on his feet protesting—
LORD BERNSTEIN: Right!
EARL JELLICOE:—against me in a moment, but here I would say that I personally should like (and I am speaking more than personally here) to see whether we can go at least some way to meet the point between now and Report stage.
3.3 a.m.
LORD BROWN: May I make a short comment on this term "serious misconduct"? It has the connotation of a single act of great seriousness. If one accuses somebody in industry of serious misconduct one usually means something that is pretty bad. The term is used in
1424
university charters and such things and it refers to something pretty scurrilous. If an employer is seeking to dismiss somebody because he has been guilty of a serious stupidity and he is forced to use the term "serious misconduct", it is regarded among some people as slanderous or libellous, and I think we should be careful about putting it into a Bill and forcing the use of this term. In a long course of working in industry I have used the term very occasionally about scurrilous acts. I have never used it about many serious acts which have been sufficient to cause us to dismiss an employee, because he would have resented it enormously if he had been dismissed for serious misconduct; and if it had become known many other firms would not have re-employed him simply because that term had been used.
LORD SHACKLETON: I also was bothered about this term. The word "misconduct" has a special significance in the employment field and I would support my noble friend. All employers have difficulty in this connection. If somebody is dismissed for industrial misconduct it is serious enough for it to be a summary dismissal. There is no satisfactory definition. In my experience we used to apply the word "misconduct" and produce a summary dismissal in those circumstances in which one found it intolerable to keep the employee on the premises for a minute longer. It meant something very serious indeed. I do not raise this to complicate my noble friend's job, because we have perhaps moved on to something slightly different. I think we may need in the code of conduct, probably not in the Bill, some fuller definitions. No doubt lawyers can argue about what "misconduct" means, but simple employers and trade union organisations have got experience and know almost by instinct what is misconduct and what is not. It does raise an interesting point. I might go on debating this with my noble friend outside.
LORD BERNSTEIN: First of all, may I say that I accept with reservation the promises the noble Earl has made; my reservation is due to the air of ambiguity about it. I will save my more abject apologies to see how far our suggestions for making the Bill a better Bill, a more practical Bill, a Bill which is easier to understand, have been accepted. As far

1425
as this Amendment is concerned, the words are important or could be important, if you had an employer who wished to use the present form to dismiss somebody. I accept that all this will be only in the course of a man's employment; misconduct outside the premises will not be held against him, unless it affects his work the following day or on other days. Is it not possible to find a word to denote if somebody is incapable of doing his job? Let us assume you engage a man when he is 10 stone and he gets to 24 stone in a year; he might then be incapable of carrying out the job. Serious misconduct means something for those in industry; I urge that the sympathetic promises to come from the noble Earl are more complete than before.
EARL JELLICOE: My inclination is that we should probably leave it here, but it is for the noble Lord, Lord Diamond, to decide. All I said was that I am not happy that we have got it absolutely right as it is; I am pretty certain we should get it wrong if we accepted the noble Lord's Amendment, and I hope we may be able to find something to define it in the sense that we all wish for. I should not like to give a clear commitment, except that we will have a good hard look at it.
LORD SHACKLETON: This is one of the most difficult clauses in the Bill. I was unhappy about aspects of the clause on this in our Bill. Here the code is going to be absolutely crucial. In a way, we are inevitably discussing it within a vacuum. I do not know how we can get round this until we have the code to see what guidance is given.
LORD DIAMOND: I am most grateful to the noble Earl for what he has said. I do not wish to add one syllable. He recognises that there is something not completely satisfactory about the words as they are. There is difficulty in the words I have put forward. I suggested "lack" because I distinguish between "lack" and "complete lack", but I recognise that he must be advised as to the meaning of "lack" in a clause. To assist him in his consideration of this, I would be most grateful if the Committee would give me leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
3.9 a.m.
LORD BEAUMONT OF WHITLEY LORD BEAUMONT OF WHITLEY moved Amendment No. 210:
Page 17, line 11, after ("employee") insert "in the course of his employment").
The noble Lord said: This Amendment would seek to make fair a dismissal of an employee on the grounds that it was related to conduct of the employee only if that conduct was by the employee in the course of his employment. I will move this very briefly because I cannot believe that the Amendment can really be necessary; but having looked through the rest of this part of the Bill which governs this clause, I have not been able to find a limiting clause which would make it unnecessary.
I think the Amendment speaks for itself but perhaps I might give two brief examples. If an employee in a sugar refinery campaiged, in his own time, for the nationalisation of sugar, no doubt his conduct would seem reprehensible from the employer's point of view but it would have nothing to do with the way he discharged his job and it would not be a fair ground for dismissal. Equally, if the employee were sleeping with the managing director's daughter, that would not be any business of the managing director qua managing director, and it would be no reason for the dismissal of the employee, It seems to me that this is a necessary qualification, and I would be very interested to hear the Government's reply. I beg to move.
LORD BROWN: This Amendment is quite important. I would like to relate one very brief experience I had some years ago. Scotland Yard informed the personnel manager of the company of which was the manager that one of the employees was indulging in serious misconduct: in fact, he was running a brothel in his spare time. This was reported to me by a long-faced personnel manager, who said "We shall have to dismiss this man immediately". I was about to agree when I suddenly realised there might be more to the matter than met the eye, and I asked if he were a good workman. The personnel manager replied, "Unfortunately, he happens to be one of the best moulders in our foundry." So I said, "Then we shall not dismiss him, because we axe confuting our decisions over employees to employees qua employees, and the

1427
fact that he is using his spare time for some nefarious purpose has nothing to do with us. The law will obviously catch up with him."
I have said enough in support of this Amendment. I think these words should help to clarify something which is often unclear to employers. I can assure your Lordships that I have heard of many cases of people being dismissed from their employment on grounds that had nothing to do with their work as employees.
LORD GARDINER: I would suggest there is an additional feature which is apparently not covered by the Bill as drawn: the time when the conduct took place is not limited to the period of employment. We have in our minds at present the case of a teacher who did something which, reprehensible or not, was done before she became a teacher; and any employer knows that an employee cannot be dismissed for something which he did before the employment started. Where there is a duty to disclose something, it may be that you can dismiss an employee for having deceived you into employing him; but you cannot dismiss him for misconduct which occurred before the employment began. The Amendment proposed would cover this point.
THE EARL OF BALFOUR: I am a little worried about this Amendment, because it would possibly involve time. If the phrase "in the course of his employment" were inserted instead of this particular sentence, it could put an employee in a rather difficult position—if he were on strike, for example, or withholding his labour for some reason. I feel that in the actual legal wording it might have a very different sense from what the noble Lord said when he moved the Amendment.
LORD DAVIES OF LEEK: But he has to be a party to that action taken against him unless he is a member of a registered union, does he not?
EARL JELLICOE: I think we all agree that, normally speaking, an employee's conduct when not at work should not affect his employment or provide grounds for dismissal. I am sure that that is common ground to all of us. But I personally believe that there must be exceptions
1428
to this and that to accept this Amendment, which would rule out those exceptions, would be a mistake.
I would accept quite a lot of what the noble Lord, Lord Beaumont, said. One clearly must be sensible and keep a sense of proportion here. I should have thought, for example, that beating one's managing director at golf outside one's time of employment would not be accepted by the tribunal as a reasonable ground of dismissal, but I was a little less certain about the noble Lord's other example. If, in addition to beating your managing director at golf, you also went to bed with his wife, I am not absolutely certain that the tribunal would not be justified in thinking that that was a reasonable ground. At least there would be an element of incompatibility creeping in to the situation, possibly.
I have been lured on to this slippery slope by the noble Lord, Lord Beaumont, and I should like to return to a rather more serious example of the sort of difficulty which I think we would get into if we were to accept this Amendment. The effect of the Amendment, as I see it, would be to remove even criminal misconduct from the orbit of the fair dismissals procedure. Would this really he reasonable? May I instance a possible example? I will take the example of a bank clerk. If that bank clerk, conscientious and honest in his working hours, nevertheless is found guilty of embezzling the funds of his local bridge club, might not his employers reasonably think that they had been a little bit mistaken about him and that he was not necessarily a suitable person for his position of trust in the bank? I should have thought that this would be the case, and I believe it would be a mistake to import this Amendment into the Bill.
Also, I believe that in this area of judgment and difficulty it is far better for us to rely on the trilogy of the three doors to fair dismissal—capability, conduct and redundancy—allied with this very important subsection (4)(b) of Clause 22; namely, the test of "reasonable". I think this would be a far better way to pursue it than by importing this particular Amendment into the Bill. Although I have thought about this carefully I cannot advise your Lordships to accept the Amendment.
LORD DIAMOND: I do not think it is as simple as that, and it just so happens that I say it with some little personal experience in this difficult field. I am not saying that it is very easy to find words which would cover all the cases, and the noble Earl of course picked on the most obvious case which we should all recognise, of an employee's conduct outside business hours being such as to make it clear to any employer that he was the kind of person who should not continue to be employed in that particular job. Anybody who has responsibilities of this kind is always on the look-out to see whether his employee, who has particularly heavy responsibilities, is able to carry them, as judged by his over-all actions in this particular area. But that would not necessarily mean that other kinds of offence should automatically be taken into account and be used as a ground for fair dismissal. Indeed, if the words are left just as they are, with "conduct"—I know the noble Earl has undertaken in relation to the possible use of the term "misconduct" to reconsider this term, or whether some definition should be put in—I myself do not think it is satisfactory, because it is left wide open for any kind of personal conduct outside the sphere of employment to be regarded as relevant. When I said "some other kind of offence", I was thinking of—
EARL JELLICOE: Would the noble Lord forgive me, I do apologise. "Relevant" perhaps, but not necessarily "reasonable". There is the test of what is reasonable.
LORD DIAMOND: There is the test of what is reasonable, but in trying to find out what is reasonable under the Act, those who are making this decision under subsection 4(b) must have regard to what is in this clause, and that is "conduct". It is not limited in any way. So I do not think "reasonable" or "unreasonable", which is always a very difficult thing to rely on, is a complete answer.
When I referred to other kinds of offence, I was thinking of motoring offences. I recollect well the time when I had certain responsibilities in connection with the General Nursing Council, and when one had to deal with disciplinary matters affecting nurses who had been
1430
convicted of stealing or other similar offences, which obviously had relevance; that is to say, their outside conduct had relevance to their capacity to remain on the Register of Nurses. And one can imagine that in certain circumstances stealing had much more relevance than in others. Stealing something from the bedroom of a patient whom the nurse was attending was obviously a far more serious matter than stealing a hat in a store, which, as we all know, may have psychological causes totally unrelated to the capacity to continue to be a good nurse. These are very very difficult matters to decide, and each one has to be decided separately. But certainly we were very easily able to disregard motoring offences—especially when the chairman of the General Nursing Council, a most distinguished matron, came in late because she had been exceeding the speed limit, and she was very shortly afterwards fined and reported to the General Nursing Council accordingly.
So you do get these very difficult cases. I am saying that I do not think it is sufficient to leave an undefined word. There is no definition of "conduct" anywhere in this clause. There is no reference to conduct, whether it is outside or whether or not it relates to the employment. The noble Earl picked on an example of conduct outside which clearly did have some reference to some employment. There may be other cases where it has no reference, and I think one has to be careful, and to protect employees who may have other habits—growing their hair long, or something like that—which perhaps are objectionable to employers but which certainly do not justify dismissal. We have to give some more guidance than is given in sub-section 4(b). I should have thought that the noble Earl ought to undertake to look at this Liberal Amendment, which has been proposed with such force, and if the mover of the Amendment is not satisfied with the kind of reply he gets from the noble Earl I should have thought that this matter ought to be pressed.
3.25 a.m.
LORD BEAUMONT OF WHITLEY: I should first of all like to answer the point of the noble Earl, Lord Balfour. I think he will find that his noble friends

1431
will tell him that the kind of situation he put forward is looked after in other pants of the Bill. I would also point out that my Amendment is a narrowing Amendment and not a widening Amendment in any way. Therefore, if what he says is true about what might happen under the Amendment, it would happen all the more under the clause unamended. I should like to take up the point the noble Lord, Lord Diamond, touched on about the bank clerk—the example produced by the noble Earl, Lord Jellicoe. It seems to me that the question of a bank clerk who embezzled the funds of the local bridge club comes absolutely squarely under paragraph (a), related to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, which involves trustworthiness in the case of the bank clerk, just as it would involve safe driving in the case of a lorry driver. Where it is not connected with the work, as in the case of the wife of the manager of the sugar factory, whatever one's moral views of the situation, I here part company from the noble Earl on whether it is proper grounds for dismissal.
EARL JELLICOE: I must interrupt. I did not say it would necessarily be proper grounds. All I said is that the industrial tribunal might think it was reasonable.
LORD BEAUMONT OF WHITLEY: I accept that, but it does not alter the point all that much. I should like to take up the point made by the noble Lord, Lord Brown. I am Chairman of the Albany Trust which, as most of your Lordships will know, is a charity to do with research and counselling in sexual matters, and particularly in homosexual matters. In the files of the Albany Trust are case after countless case of people who have been dismissed from their job because they were found to be homosexuals, not necessarily because they had broken the law of the land at the time when the law of the land was different from what it is now, but just because they were found to be this. This is not a minor Amendment that we are putting forward. I think this is an important point and I would sincerely ask the noble Earl whether the Government could not take this Amendment
1432
away and think about the implications, and particularly the implications of the point raised by the noble Lord, Lord Brown, and me about the hard cases. If they cannot, I think I must divide, but I would much rather they looked at it again.
THE LORD CHANCELLOR: May I say just a word to persuade the noble Lord he is wrong about this? I should like to recall two things which have happened to me in my life. Many years ago, when things were different and I was able to employ staff, I employed a man in my garden and a girl in my kitchen. They were pretty dotty, but I liked them both. The man in my garden was an Armenian and a militant atheist. The girl in my kitchen, equally if not rather more dotty, was a Roman Catholic and just out of a convent. Outside working hours, and quite legitimately, the man who was in the garden said words that were quite unforgivable about the Blessed Virgin Mary. It was obvious that this was not in the course of his employment, and it was equally none of my business in one sense, but it became clear to me that I should have to lose one of them because of the relations which developed between the two. I did in fact dispense with the man in the garden. I do not think I was unreasonable. The situation had become such that I had to lose one of them.
Some years ago I used to farm. I had only a very few employees—I am not a grand employer like noble Lords opposite who go into thousands—I had four or five people. One of these was a very good cowman who had a nice little wife and several nice little children. He lived in a cottage on my estate, and everybody was very happy until the following happened. Outside hours he came to me and said that he was going. When I asked him why, it emerged that outside hours one of the other employees who was unmarried was making constant advances to his wife. Again I had to choose which one I was going to lose. They were not going to stay in the same employment. It was none of my business of course, whether the young man was successful in his pursuit of the young lady or not, but as a farmer I felt that I was entitled to choose between them. It had nothing to do with their capability; it did have to do with the conduct of

1433
one of them. If I had been the husband of Lady Chatterley I am bound to say I should have got rid of my gamekeeper.
But the conclusion of all this, and what I am trying to persuade the noble Lord about, is that it is a little more difficult than he thinks to decide what is in the course of employment and what is not. What we have done in the Bill is to say that conduct counts. The tribunal has to take it into account, but it must also see that the employer acts reasonably; he has to justify himself by the standard of reasonableness in the face of things which happen. Human relationships in employment are infinitely various and you simply cannot lay it down, as you can in a big factory, that what goes on outside the factory gates is no business of anybody. When you are dealing in complicated human relationships like employment, you have to take into account what is reasonable between decent people, and I do not have any qualms about the decisions that I made.
The other point that I want to put to the noble Lord is this, and it has no relation to any experience of mine. This problem arises only in cases where the employee has not behaved so badly that he can be dismissed out of hand, as he would be if he tried to blow up the house in which he was working. Also, it does not arise where the employer is so unreasonable that he tries to get rid of an employee without notice, because in either of those cases the case is plain. It occurs only in one of the grey areas where the employer gets rid of the employee after having given him adequate notice. I really think that the noble Lord has not quite plumbed the complication of human relationships when he simply says that if it is not in the course of employment it does not count.
LORD BROWN: I want to do something very dangerous and challenge the logic of a Lord Chancellor. The noble and learned Lord told the story of the Armenian gardener and the Roman Catholic girl who was helping in the home, and he implied that he had dismissed the Armenian gardener because he had said improper things outside his terms of employment to the girl servant. I am going to suggest to the noble and learned Lord that he did nothing of the sort. He would only have discovered the gardener had said this by reason of
1434
the conduct of the Armenian gardener and his relationship with the servant girl at work, and the reason the noble and learned Lord dismissed the Armenian gardener was because of their relationship at work and not because of what the man said outside.
When noble Lords rose to answer this Amendment I expected them to make a quite different defence of their position. I am going to come clean. I am not a lawyer, but I discussed this point with lawyers many years ago and I was informed that if one was talking about the conduct of an employee, the law would interpret that as being conduct in the role of employee. If that is right, despite what has been said from the Government Benches noble Lords are stuck with the meaning that I and the noble Lord on the Liberal Benches put. The only reason why I supported the Amendment was because it made clear what was conveyed to me as a legal point, which was recognised anyhow, and I wanted to see it made still clearer. So I really think that noble Lords on the opposite Benches are wrong on this point, and that you cannot possibly conceive of penalising somebody by dismissing him from a business for acts which took place outside his time of employment and for which the law may have its own special penalty. In other words, you would be indulging in double penalties on a person, and it is not the job of an employer to penalise somebody for breaking the civil law. It is the job of an employer, if necessary, to penalise somebody for misbehaving as an employee, and there, I submit, the matter should rest. It cannot go outside that.
LORD SHACKLETON: I think that once again we are on one of the most difficult subjects imaginable. I was interested in the noble and learned Lord's experiences as an employer of five people, having been, without wishing to be boastful, responsible on the personnel side for about 16,000 people. I have found, however, that you get the same sort of situations there as you do when you employ an Armenian gardener and an innocent Roman Catholic maid. I cannot remember the story. I got slightly muddled up by the reference to Lady Chatterley and the gamekeeper. There may be some noble Lords who will recall an earlier debate when a noble Lord whose son, or

1435
at least a relative, is now with us proposed banning all the works of D. H. Lawrence and Lady Chatterley's Lover; and one of the noble and learned Lord's most brilliant speeches in an awkward debate was when he re-wrote the end of Lady Chatterley's Lover
While I do not go the whole way with the noble Lord, Lord Beaumont, on circumstances which would be regarded as affecting the employee's suitability, and taking into account also the fact that at the moment there is really no protection and that this is an attempt to impart some protection, I am bound to support the views expressed by my noble friend, Lord Brown, that this particular paragraph (b) is not good enough at the moment. Of course the noble Lord has on one occasion or another been a Minister-I believe of large Ministries, or perhaps he has always been at Ministries which can almost be put, as he once said, into a bus; and whether they were Crown employees or not, the fact remains that one finds the most extraordinary reasons why people's employment should be terminated. For instance, I used to suffer a great deal when I was Air Force Minister and was asked on occasion to approve calling on an officer to resign for misconduct because he was involved in a divorce. I knew so many senior officers in the Air Force who had achieved great status and great position but whose lives were of an even more dubious kind that I found it very difficult, as a simple act of justice, to concur in such attempts to dismiss valuable officers; but it was constanly argued that if somebody was involved in a divorce then it must bring discredit on the organisation, whether it be the Air Force or a firm, and that therefore the employment had to be terminated in some way.
This was ludicrous, absolutely ludicrous; and what I should hope the Government might now suggest is that even if "in the course of his employment" is too restrictive, there should be some way in which it is more directly related. You see, sub-paragraphs (a) and (b) are separate; and, furthermore, I do not necessarily trust the reasonableness of a tribunal in deciding what is reasonable behaviour in these matters. Some might take a very liberal view, like the noble
1436
Lord, Lord Byers; some might take views which would perhaps be similar to those of, say, my noble friend Lord Longford in a matter of this kind. I am trying to find extremes in the permissive spectrum. There is nothing personal intended. I think that we ought to press the Government on this unless they undertake to try to find a form of words related to the conduct of the employee in a way which affects his capabilities or qualifications. There needs to be much less of an invitation to sack somebody for what he did, whether at work or not. I have known many cases where attempts have been made to sack people for totally irrelevant reasons and where senior management has had to move in to prevent some petty act almost of vindictiveness against an individual. I think we ought to get an undertaking from the Government to look at this and try to improve it or we ought to test this in a Division. I should certainly support the noble Lord.
3.42 a.m.
VISCOUNT CALDECOTE: I have a good deal of sympathy with noble Lords opposite. The noble Lord, Lord Shackle-ton, is trying to achieve that dismissals under subsection (c) should be reasonable. He did not suggest any form of words. He is trying to ensure that employees should not be dismissed unreasonably. As has already been pointed out by my noble friend, Lord Jellicoe, that is covered by subsection 4(b) later in the Bill. I think the noble Lord is trying to achieve the impossible-an improvement on 4(b).
LORD SHACKLETON: It is much simpler than that. Just leave out entirely the subsection relating to the conduct of the employee. We are saying that the Government ought to do better than they have done, and try to find the right words.
VISCOUNT CALDECOTE: They are there in 4(b)
LORD BEAUMONT OF WHITLEY: I do not think that this is so because the noble Lord, Lord Shackleton, did say that he did not necessarily trust a tribunal to decide what is reasonable in this sort of situation. And I think that this is true. I would trust tribunals to

1437
decide upon the conduct of employees as employees. I would not trust them to decide about the conduct of an employee who was sleeping with the managing director's wife. And after what the Government Front Bench have said, I would not trust them on that, either. There are obviously widely differing views on this. It is a situation in which there are very real problems and always quite a lot of victims. Although I see the force of what the noble and learned Lord has said, I still think that it does not begin to outweigh the large number of cases in which, because of the tribunal's general view of the mores of their time, they might be tempted to think it was reasonable to dismiss an employee for something which had nothing to do with his employment.
3.52 a.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 211:
The noble Lord, Lord Brown, implied in something he said that we might in some way underline the word "employee". He has suggested to me that perhaps we could relate it to the conduct of the employee qua employee. Perhaps the Government might consider this. I suspect that they would find it more acceptable. If they would say that they would like to look at this again, I should be more than grateful; if not, I suggest that we do not waste the time of the Committee further, but move to a Division.
3.45 a.m.
On Question, Whether the said Amendment (No. 210) shall be agreed to?
Their Lordships divided: Contents, 26; Not-Contents, 75.

CONTENTS

Ardwick, L.

Champion, L.

Hoy, L.

Barrington, V.

Davies of Leek, L.

Lee of Asheridge, Bs.

Beaumont of Whitley, L. [Teller.]

Delacourt-Smith, L.

Llewelyn-Davies of Hastoe, Bs.

Diamond, L.

Ritchie-Calder, L.

Bernstein, L.

Donaldson of Kingsbridge, L.

Shackleton, L.

Beswick, L.

Gardiner, L.

Stow Hill, L.

Blyton, L.

Garnsworthy, L. [Teller.]

Taylor of Mansfield, L.

Brown, L.

Greenwood of Rossendale, L.

Wells-Pestell, L.

Burntwood, L.

Henley, L.

White, Bs.

NOT-CONTENTS

Aberdare, L.

Elliot of Harwood, Bs.

Mowbray and Stourton, L. [Teller.]

Aldenham, L.

Exeter, M.

Amherst of Hackney, L.

Falkland, V.

Moyne, L.

Balfour, E.

Ferrers, E.

Nugent of Guildford, L.

Bathurst, E.

Fisher, L.

Pender, L.

Belhaven and Stenton, L.

Gisborough, L.

Penrhyn, L.

Belstead, L.

Glendevon, L.

Rankeillour, L.

Brabazon of Tara, L.

Goschen, V.

Redesdale, L.

Brecon, L.

Gowrie, E.

St. Aldwyn, E. [Teller.]

Caldecote, V.

Gray, L.

St Just, L.

Chelmer, L.

Hailes, L.

St. Oswald, L.

Clinton, L.

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

Sandford, L.

Cork and Orrery, E.

Sandys, L.

Cottesloe, L.

Halsbury, E.

Selsdon, L.

Craigavon, V.

Hanworth, V.

Sempill, Ly.

Cranbrook, E.

Harvey of Tasburgh, L.

Strange, L.

Croft, L.

Hives, L.

Strathcona and Mount Royal, L.

Cromartie, E.

Hood, V.

Daventry, V.

Jellicoe, E. (L. Privy Seal.)

Sudeley, L.

De Clifford, L.

Kemsley, V.

Suffield, L.

Denham, L.

Kinnoull, E.

Swansea, L.

Drumalbyn, L.

Lansdowne, M.

Teviot, L.

Dudley, E.

Lothian, M.

Thorneycroft, L.

Ebbisham, L.

Lyell, L.

Tweedsmuir, L.

Eccles, V.

Massereene and Ferrard, V.

Vivian, L.

Effingham, E.

Mottistone, L.

Windlesham, L.

Resolved in the negative, and Amendment disagreed to accordingly.

Page 17, line 22, after ("(1)") insert ("(a) or (c)")
The noble Lord said: This rather cryptic Amendment relates to Clause 22, which provides that dismissal shall be regarded as unfair if the employer

1439
exercises the rights conferred by Clause 5(1) of the Bill. In that subsection there are three rights, of which (a) and (c) require no comment, but (b) does. Paragraph (b) is the right to be a member of no trade union. This is where we get to the closed shop position.
As the Bill was originally drawn, the clause we are now considering would not have needed amending in this one respect, but as the Bill has been amended so as to detract up to a point from the right in Clause5(1)(b), where what has been considered is membership of a union in an approved closed shop, then this provision in Clause 22 requires to be amended. The simplest way of amending it is to make it clear that the dismissal involved under subsection (3)(a) should relate to (a) and (c), the two rights in Clause 5, but not to (b)—namely, the right in connection with membership of no union. I hope that I have made clear that the Amendment seeks to bring this part of the Bill up to date in relation to the new provisions affecting approved closed shop procedures. I beg to move.
LORD DRUMALBYN: I am not sure that the noble Lord is quite right here, because the right to belong to no trade union is preserved except in the case of those approved closed shop agreements which we were discussing when we started business. In those cases, of course, the right to belong to no trade union does not exist. That is one of the sacrifices that is made in approved closed shop arrangements. So I do not think the noble Lord's reason is right.
LORD DIAMOND: It is of course late, or latish, and no doubt I may have expressed it badly or not expressed it sufficiently clearly; or possibly because of the hour the Minister has not fully understood the point. I think I had better go over it again. Clause 22(2) says, if I may turn it into shorthand, that for the purpose of the Act the dismissal shall be regarded as unfair if the reason was that the employee had exercised rights conferred by Clause 5(1). Merely because he had exercised those rights, it would be unfair to dismiss him. But it is now the case that it is no longer an unfair industrial practice to dismiss an employee where you have the closed shop procedure. It was right as the Bill was origin-
1440
ally drawn, but it is no longer right. Therefore, this provision should be restricted to the other parts of those rights. Clause 5(1) has three rights, and one of them, the right to belong to no trade union, is no longer unaffected and is limited. I should have thought that one had to make the appropriate consequential provision here. It goes perhaps a little wider, but not inappropriately wider.
Therefore, I think we are on fair ground in saying that instead of the whole of Clause 5(1) we ought to limit this to cases where Clause 5(1)(a) and (c) apply. I hope that with that second explanation the Minister will feel he has got something that he can either accept or look at and consider at a more appropriate time and let us have a reply later on.
LORD DRUMALBYN: I certainly do not feel I can accept this Amendment. I cannot lay my hands on the actual provision which I think limits this provision in this respect. Certainly I will look into it and, if necessary, we can refer to it at the next stage.
LORD DIAMOND: I recognise that there is either an Amendment or some other part of the Bill where there is the kind of provision that he has referred to. Nevertheless, this would be inconsistent with the Bill as it now stands if we left it simply at Clause 5(1). The Minister has been good enough to say that he will look at it, without any further commitment than that, and that is all that one can reasonably ask at this hour of the morning. On the basis of that courteous promise, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.2 a.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 212:
Page 17, line 23, leave out subsections (3) to (6) and insert—
("(3) Where it is shown that the reason or principal reason for the dismissal was a reason falling within subsection (1) of this section, the dismissal shall not be held to have been unfair unless the tribunal is satisfied that, in the circumstances of the case, the employer acted unreasonably in dismissing the employee.
(4) Where it is shown that the reason or principal reason for the dismissal was that the employee was redundant, then if it is also shown:

(a) that the circumstances constituting the redundancy applied equally to one or more

1441
other employees in the same undertaking who held positions similar to that held by the claimant and have not been dismissed by the employer, and

(b) that the reason (or, if there was more than one, the principal reason) for which the claimant was selected for dismissal was a disqualified reason,

the dismissal shall be held to have been unfair; but if the facts specified in paragraphs (a) and (b) of this subsection are not shown, the dismissal shall not be held to have been unfair.
(5) In this section, in relation to an employee:

(a) the reference in subsection (1)(a) to capability shall be construed as a reference to capability assessed by reference to skill, aptitude, health or any other physical or mental quality, and

(b) any reference to redundancy or to being redundant shall be construed as a reference to the existence in relation to the employee of one or other of the facts specified in paragraphs (a) and (b) of section 1(2) of the Redundancy Payments Act 1965.

(6) In this section it shall be held to have been an unfair dismissal if the reason for the dismissal was:

(a) that the employee was, or proposed to become a member of a trade union, in accordance with section 5(1)(a) of this Act;

(b) that the employee was not, or refused to become a member of a trade union, which was not an indedependent trade union;

(c) that the employee took part in the activities of such a trade union as is mentioned in paragraph (a) of this subsection or acted in the capacity of a worker's representative or sought election or appointment as such a representative;

(d) that the employee made a complaint or took part in any other action against the employer on the grounds that the employer had contravened an enactment or had contravened the provisions of an instrument having effect by virtue of an enactment;

(e) that the employee professed or practised, or did not profess or practise, a particular religion or religious doctrine, or belonged to or otherwise upheld the aims of, or did not belong to or otherwise uphold the aims of, a particular political party, or upheld or did not uphold a particular political doctrine;

(f) that the employee is of a particular colour, race or ethnic or national origins;

(g) that the employee is a man, or that the employee is a woman, as the case may be;

(h) that the employee was a married person, or an unmarried person, or a widow or widower or a divorced person, as the case may be.

The noble Lord said: The Labour Government's Bill had its First Reading
1442
in another place shortly before the recent General Election-and I mean General Election,— not the municipal elections which have taken place recently. They have had a very different result, and I hope that noble Lords opposite are not feeling too disappointed or too worried, even when they consider what has happened in Bexley. But that is not one of the items mentioned in Clause 22, or my Amendment, so I hurry to return to Clause 22 and this Amendment, which constitutes a write-in into the Bill of the provisions in the Labour Government's Bill which we think were slightly better than the provisions already contained in the Bill before us. Those in the Bill before us are good up to a point, but they do not go far enough.
I should like to draw attention to subsection(6)(e), (f), (g) and (h). Those are sensible provisions which I do not think are to be found anywhere, either explicitly or implicitly, in the provisions in the clause before us. They are sensible provisions. Take, for example, paragraph (f):
"that the employee is of a particular colour, race or ethnic or national origins;".
That is a provision which I am sure we should accept immediately, and it ought to be included. If your Lordships have a turn of mind for it, subsection (6)(g) is not without relevance; namely:
"In this section it shall be held to have been an unfair dismissal if the reason for the dismissal was(g) that the employee is a man, or that the employee is a woman"—
and here the important words come—
"as the case may be;".
That, I am sure, is a gem which ought to be incorporated as frequently as possible in any Act we happen to be considering.
Certainly paragraph (h) is a case which harks back to the discussion we recently had and which showed not only how wise the Liberal Party was to introduce its Amendment but how necessary it is to have guidance as to what is sensible conduct in dismissing employees. Because if we do not have it, employees will to dismissed for all sorts of irrelevant and personal matters. That is covered in paragraph (h). So without going into the matter in more detail, I

1443
think these provisions, which broadly include those already in the Bill but which in addition include others we want to see, are considerably superior to those in the Bill; therefore, I beg to move.
4.6 a.m.
EARL JELLICOE: These Amendments seek to import into Clause 22 a great range of disqualified reasons for dismissal. We have only one, the one which we have just discussed: dismissal for exercising the basic rights in Clause 5. I must make it clear at the outset that we are opposed to importing this battery of disqualifications into the Bill, since we think it will be extraordinarily difficult to put together an exhaustive list of reasons for dismissal which should be regarded specifically as unfair. There will always be something which escapes even the sharpest eye of the most skilled draftsman. In any event, we believe that such a list—and I do not quarrel with what is on the list—is totally unnecessary, because it is my belief that a tribunal would be bound to find that blatant discrimination on grounds such as race, colour, sex, marital status, religion or political belief was unfair.
Apart from this, if we were to walk the path which the noble Lord has very pleasantly invited us to walk with him we should be importing a vast complication into the Bill because the list of proposed disqualified reasons would have to be qualified in their turn by a complicated series of exceptions-to cover, for example, situations in which it was necessary for the employee to be of a particular religion, political persuasion or sex. If I might take an example, I think most noble Lords would agree it is not unreasonable to employ Indians in an Indian restaurant or Roman Catholics in a Roman Catholic school, or Socialists at Transport House, or Tories at Tory Central Office, or Liberals at Liberal House. If in such situations the employee changed his political allegiance, or religion-or the Indian restaurant changed to a Chinese restaurant because of a change in the eating habits of the clientele-it would surely not be unreasonable for the employer to dismiss the employee. But no such provision is made in the proposed Amendments.
I find that a little surprising because in Mrs. Castle's Bill there was, in fact,
1444
just such a provision, and a very elaborate one it was, because there was a clause there (I think Clause 36 of the Bill) reading:
"It shall be held to be an unfair dismissal if the reason for the dismissal was that the employee professed or practised or did not profess or practise a particular religion or religious doctrine or belonged to or otherwise upheld the aims of or did not belong to or otherwise uphold the aims of a particular political party or upheld or did not uphold a particular political doctrine unless it has been agreed that the employee must be a person who professes or practised a religion or religious doctrine or as the case may be a person who belongs to or otherwise upholds the aims of a political party or upholds a political doctrine."
I have quoted the words in the last Government's Bill, and it shows the area of complication into which we shall be irretrievably enmeshed if we accept the noble Lord's Amendments. If it is necessary to have this complication, then of course let us embark on that particular boat, but in our view it really is not necessary. The reason is that under the Bill's provisions the tribunals which will be dealing with these unfair dismissals will be able to determine, in accordance with equity and the substantial merits of the case, and in the light of all the evidence and arguments, the reason for dismissal, and whether or not the employer acted reasonably in regarding that reason as sufficient to justify dismissal.
I should like to make one thing absolutely clear: that is, that the provisions of the Bill before us do not in any way prevent an employee who has been dismissed by his employer as redundant, for example, but who in fact considers that the real reason was because of his colour or religion, from making a complaint of unfair dismissal to the tribunal. It will be for the tribunal, if it establishes that the reason for dismissal is something other than redundancy to determine whether it was a good reason and whether or not the employer acted unreasonably. I have no doubt whatsoever, where there is blatant discrimination covering any of these matters in the noble Lord's Amendments, what the tribunal's decision would be. I hope I have made it clear that I am not against these particular Amendments in any one wit. Their pedigree is of the highest degree of respectability, via Donovan, via the I.L.O. But I do say in substance and in practice that the Amendments will

1445
add no enforcement to the provisions of the Bill or to the safeguards for the employee. What they do add is a mountain of complication and possibilities of real muddle. I cannot advise your Lordships to accept these Amendments.
LORD BROWN: I have a great deal of sympathy with this Amendment, but I hope my noble friend on the Front Bench will withdraw it, not because it goes too far, but because it does not go far enough. I want to point out that had Amendment No. 210 been passed it would effectively have done virtually all that this Amendment seeks to do, in a general way, and that would not have had the effect that this Amendment has of picking out particular acts of an employee in his personal role, and thereby leaving a lot of gaps between them which might have been the cause of dismissal because of acts not in his employee role. I hope that, as a result of the long debate we had on Amendment No. 210—and I hope Ministers and officials will read it carefully—the ways of righteousness will dawn upon them at Report stage. I cannot overstress the importance of these Amendments. I beg noble Lords opposite to realise that quite a large number of unofficial strikes are caused simply on the ground that people are dismissed for acts out of their role of employee. I hope that we will be able to get back to that form of Amendment rather than pressing this one, and on those grounds I hope my noble friend will rot press this Amendment.
LORD DAVIES OF LEEK: There has been much talk in the Press, in the other place and everywhere else about this Bill being particularly in keeping with the United Nations Convention on Human Rights and the right of an individual not to belong to a trade union, but I do not want to upset anybody on the Front Bench opposite, because they have been very helpful. Perhaps they are thinking of trying to incorporate something which was thought of in Amendment No. 210. Behind my noble friend's thinking, and indeed that of all of us, including the noble Lord who has just spoken, there is this idea of human rights being still protected. Can we find something for this?
LORD DIAMOND: I am not very happy with what the noble Earl said about the Amendment, but I am grateful
1446
to him for saying that it had the best possible pedigree. All these provisions are very sensible ones and when one is considering a dismissal which may affect a man's livelihood, the place where he lives and his capacity to use his skill in a particular way, these are fundamental thing. The fact that the noble Earl thought this was lengthy and detailed and to complete it might be even more so meant that he thought one should not take as much trouble as I think should be taken in protecting the rights of the worker against unfair dismissal. I am prepared to take any amount of pains about that, and we may find over the course of years that it will be necessary to particularise and that further legislation may be necessary. Therefore I am bound to say that I do not share the view of the noble Earl that we can get at it in a shorter form. If we could do so I should be delighted.
The noble Earl suggests that by putting it in a shorter form this is leaving it to the good sense of the tribunal, which will do everything that he thinks it ought to do in reaching reasonable conclusions. I can only repeat that the tribunal will need guidance. That is quite clear. It is also clear from what the noble and learned Lord said about certain dismissals which he had himself effected that he might have different views on whether those dismissals corresponded with best modern practice. If the noble and learned Lord were himself a member of a tribunal, it would be a very high-powered one and he might be assisted if some guidance were laid down in this way by indicating—which is what the law does here—what is the best possible practice.
I am bound to say I do not regard his answer as satisfactory, because we do not make any advance either as regards incorporating in the Bill details which relieve the tribunal of its responsibilities or of helping the tribunal by giving it guidance on what is the best current practice. I do not think I would seek to ask your Lordships to divide at this present stage, because there are many words here, some of which might reasonably be objected to. I would therefore propose to read very carefully what the noble Earl has said and come back to it at a later stage, making it clear to him that we do not see eye to eye on this issue. This is a pity, because we are after the same thing, and I recognise that. I repeat

1447
my gratitude to the noble Earl for what he said earlier. I do not think it right to withdraw the Amendment, but I am not asking my noble friends to pursue it to a Division at this stage.
VISCOUNT MASSEREENE AND FERRARD: If this Amendment were accepted would it not mean that a factory could be disrupted by a group of militant Maoists or Communists and it would not be possible to dismiss them? That would seem to be quite wrong.
LORD DIAMOND: I do not want to spend too much time on this. May I merely say that in the days when I was an employer—and I regret that my experience as an employee is nil—if any-body had suggested to me, when I had responsibilities in a particular firm, that a good workman who did his job well but was a well-known Communist ought to be dismissed, I would have rejected the idea with scorn.
On Question, Amendment negatived.
LORD DIAMOND LORD DIAMOND moved Amendment No. 213:
Page 17, line 33, after ("(1)") insert ("(a) or (c)").
The noble Lord said: I move this Amendment merely for the purpose of saying that it relates closely to a previous amendment which the noble Lord, Lord Drumalbyn, said he would be good enough to look at, at a more convenient hour of the day; if he will be good enough to say that he will include this Amendment in his review for the same reasons, I need not bother your Lordships further. I beg to move.
LORD DRUMALBYN: I will certainly do that, but in the meantime I have been able to find the provision which I was trying to find. It is subsection (2) of clause 16, which says:
"Where an approved closed shop agreement is for the time being in force, the following provisions of this section shall have effect notwithstanding anything in section 5(1)(b) of this Act."
That is as far as the approved closed shop is concerned. The following subsections make alternative provisions to clause 5(1)(b) and effectively take that out so far as the approved closed shop is concerned; but I would also say to the
1448
noble Lord that that really is the very tip of the pinnacle. The vast majority of cases will come under clause 5(1)(b) because in the vast majority of cases the right contained in that clause, to be a member of no trade union, ought to be capable of being protected. The employee or worker ought to be protected from dismissal for exercising that right.
LORD DIAMOND: I thought we were starting off on the basis of a difference of view about the provision. I think we are now coming to a difference of view about the substance, but it would be wrong of me to reach a conclusion without carefully considering what the noble Lord has said. I will do so and we will return to the matter at a later stage. I take it that the noble Lord will still be good enough to look at this in connection with the other amendment and on that basis I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
4.25 a.m.
LORD DIAMOND LORD DIAMOND moved Amendment No. 214:
Page 18, leave out lines 14 and 15 and insert ("skill or aptitude.")
The noble Lord said: The effect of this Amendment is to leave out the words:
"capability assessed by reference to health or any other physical or mental quality,"
from Clause 22(6)(a) and instead to insert the words, "skill or aptitude." One is concerned here with an individuals health when he is perhaps, as I am, approaching middle age at the age of nearly 65, and perhaps getting a little more tired a little earlier than he had done when he first started his working career.
We do not take the view that this should be regarded as closely as it would be if it were included in subsection 6(a). Inasmuch as it is almost certain that whoever replies will remind me that these words were in the Labour Government's Bill, let me say straight away that they were in the Labour Government's Bill. There was certain difficulty about them before they went in the Bill, and it is conceivable that, had that Bill been debated, the words would have found the same criticism as the words in the Bill are now finding. And I hope that the well-known capacity of the Labour Government to

1449
have second thoughts, and to go from wisdom to greater wisdom, will be reflected in the capacity of the present Government to have second thoughts now in relation to these words.
LORD BROWN: Any psychologist would inform the Government that skill and aptitude are a function of health and physical or mental quality, so that the words "health or any other physical or mental quality" are quite unnecessary. For that reason I support the Amendment.
THE EARL, OF BALFOUR: If I may give one example of something which can happen to the very best of us, a person may he suffering from failing sight, or he may in all good faith have been employed in a position and then find that he is, for example, colour blind to red and green. I feel that this sort of thing can sometimes affect a person's position.
LORD DAVIES OF LEEK: If a man is in a job, surely it would not be left until he is about 60 years of age before finding out that he is colour blind. For any kind of job where that aptitude is needed, there are generally medical tests to find out. But I want to support this Amendment, because in these days youth is apotheosized everywhere. Anybody of the age of 45, 50 or 60 applying for jobs today is liable to he brushed aside. They do not look at the skill and aptitude, and years of experience are being thrown away through looking a little too much at health factors, and a little too much sometimes at age. Particularly is this true in country crafts, and particularly is this true in agriculture—and skill and aptitude there, when a man is allowed to work at his own pace, is another thing. He does not do a foolish thing like this, going on all night long and gabbling through one of the most important Bills before the British people for the last one hundred years. We are just gabbling through it in both Houses, because it is needed in the euphoria of the Conservative victory, to plunge the country into prosperity. I am sorry for that slight diversion—the rest of it was not a diversion; that little bit was illustrative. I hope that, some attention will be paid to this, because I think here at last this evening we can have another nice little speech from the noble Earl opposite.
EARL JELLICOE: If it is time for a nice little speech, I will embark on it. I have been a little puzzled by one thing which the noble Lord, Lord Diamond said: that he assumed I would remind him that the clause which he is seeking to amend, or the subsection, did in fact have that best of all possible pedigrees in that it was there, in all its virtue and integrity, in Mrs. Castle's Bill; and so it was. But he said, of course, that when it had been looked at very carefully within the Labour Party and had gone through Parliament, doubtless these changes would have been made. I must point out to the noble Lord something which I am sure he must be aware of: that in Amendment No. 212, which we have just discussed, precisely the same thing is also to be found. Subparagraph (6)(a) refers to precisely these same words:
"…capability assessed by reference to skill, aptitude, health or any other physical or mental quality:"
I am rot perhaps unduly teasing him with what must have been a temporary oversight.
LORD SHACKLETON: This is one of the reasons that I, for one, was very disinclined to support the previous Amendment.
EARL JELLICOE: More seriously, I do not think that the Amendment is necessary, because I believe that there are times when a deterioration of some-body's health does render him unsuitable for the type of employment in which he has been engaged. For example, a steeplejack, as he advances in years, may suddenly become liable to fits of vertigo. Clearly he is not going to be suitable then for employment as a steeplejack.
I believe that some such provision is necessary. It is desirable that we should be safeguarded against abuse here, and I believe that our familiar old clause, Clause 22(4)(b), which I have cited before—I dc not want to lean too heavily on it—does afford us the essential safeguard. It gives us the safeguard to cover, for example, the type of case which some of us may have had in the back of our minds: where an employer takes advantage of an employee's absence, through sickness, to get rid of him for a reason which has nothing to do with his capability. I believe Clause 22(4)(b) to be an

1451
adequate safeguard here. I believe that this provision is unnecessary; I believe that there are adequate safeguards and, apart from this, I rely upon the brilliant and recent pedigree of this particular provision in asking your Lordships not to accept this Amendment.
LORD DIAMOND: I am certainly not going to seek to press this to a Division, but I am going to seek to appeal to the noble Earl to reconsider what he said in certain respects. Subparagraph (6)(a) defines "capability" as meaning:
"capability assessed by reference to skill, aptitude, health or any other physical or mental quality:"
The noble Earl will by now have got my point that although it may well be that Clause 22(4)(b) is a measure of protection, the tribunal there envisaged should have some guidance. The guidance which the Bill is giving is:
"any other physical or mental quality;"
It really is inviting the tribunal to regard a dismissal by an employer as reasonable if there was any physical or mental diminution, or situation, which could be pointed to.
I do not think a would be right to leave this clause as it stands, even if the noble Earl is relying on the protection of Clause 4(1)(b). I have said, time and time again, that there ought to be some guidance and here we have something which can be regarded only as guidance of the harshest possible kind. The Bill does not use the words "any other major physical or mental deterioration", but states instead:
"any other physical or mental quality".
It could be a most minor problem, a temporary disability in a hand or a wrist or an arm or a foot. The employer could pick on it if he wanted to do so, or (the employee might feel that the employer could pick on it, because the guidance is as harsh as that. So I do not regard this as satisfactory.
I know that the noble Earl meant what he said earlier, and I therefore hope he will look at this. I shall endeavour to see whether before Report stage we can find any way of trying to meet our anxieties, and of achieving what the Government want to achieve and what we want to achieve, but that I doubt will be achieved by the clause as it
1452
stands. I have explained my difficulty. I do not want to be hostile or time-consuming. I am anxious only to try to evolve machinery under which there will be seen to be fair protection against unfair dismissal.
VISCOUNT CALDECOTE: May I ask the noble Earl whether he is satisfied that those on the Register of Disabled Persons are protected satisfactorily?
EARL JELLICOE: I think I shall have to take note of that. I might give the wrong answer if I reply off the cuff. I shall write to my noble friend and will send a copy to the noble Lord, Lord Diamond.
LORD DIAMOND: In the circumstances, perhaps the simplest course would be for me to beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
On Question, Whether Clause 22 shall stand part of the Bill?
4.37 a.m.
LORD BROWN: This is a very important clause and, as the noble Earl, the Leader of the House, has said, it corrects a situation which badly needs correcting. But there is a total conception that is missing from the thinking behind this clause. I am not going to vote against it, but I want to get on the record this missing conception. Dismissal has the connotation in most circles in industry of dismissal from an organisation which employs one. I believe that many in this Committee have been thinking of that during our debates. But dismissal may be dismissal from a roll, with the possibility of transfer to another roll inside the same employing organisation. It is very important to differentiate. May I refer to "dismissal" from the organisation which employs one, and "transference" as the other conception which is not referred to here? This may be important if an employee appeals and the case goes to the Court. The Court is only able to consider whether or not he has been unfairly dismissed. If it comes to the conclusion that the dismissal is unfair, then he has to go back to the roll from which he was dismissed; whereas something much more appropriate might have been arranged if the other conception had been introduced,

1453
because he might go back to a roll on which he is happier and where his employer is happier with him. I thought that it was not fair to let this clause pass without drawing attention to what I regard as a rather important matter, and getting it on the record.
LORD DAVIES OF LEEK: I agree that this is a vital clause. Nevertheless, I also agree that there is no point in dividing just for the sake of it. But if my Front Bench, in its wisdom, decides that we shall go into the Lobby, I will loyally follow my noble friends in, one of the reasons being that I have looked closely at Clause 22 and the other night I felt I should like to make a long speech about it, but that would be all wrong now. But there is one thing I should like to ask a couple of questions about, and I will try to finish my speech in about a minute; so if anybody is worried, let me assure them that I will not be much longer than that. We are told by the Bill that every worker has the right not to be unfairly dismissed. That is correct. Now if the worker—this is what I read, and it is obvious—feels that he is being dismissed unfairly, he can apply to the I.C. or to the industrial tribunal; and if;' they think his dismissal is unfair, what can they do? We shall see later on, or we shall find out, that they can recommend some compensation, or even reinstatement, but as I understand—I may be jumping ahead a bit, but we have to do this in the case of these clauses to understand some of them—under this Bill they cannot enforce reinstatement. They can compel compensation. We used to have a lot to do with compensation for workers in the old days, but under common law—and here I should like a little advice, because I am a bit out of my depth—I gather that when they draw this compensation it will be modified by the fact that if the man gets a job the wages he has earned during the dispute will be taken off the amount of compensation that the court orders.
My last question is this. I also believe that none of these provisions will apply if the man has not been working in the industry for two years. I should like information on that. If I speak any more I shall just be going around points which have been made pretty well all through the day and now through into the morning, but I think that what I have
1454
said is relevant and I should be grateful for an answer to it.
LORD SHACKLETON: One of the difficulties we have been having with this particular Part, Part II, and one of the reasons why it would have been helpful if it could have been another Bill, is that we could have had a Second Reading debate. As it is, we are having a good deal of difficulty jumping from one clause in this sort of sub-Bill, and my noble friend has been asking questions which come up on other clauses but which are clearly relevant to this particular clause. There is no doubt that this is an important and difficult clause, and I should like to say to the noble Earl that I wish some of the noble Lords on his side of the Committee with managerial experience had joined in this debate, because this is going to present real difficulties to managers in industry.
As I say, I will not go on reiterating it, but it would have been much easier if we had the code; we would then know what it would mean. But I agree with what my noble friend Lord Brown has been saying. In a way—and I know this was in our Bill, the Bill that was never debated—we are dealing with a pretty primitive aspect of management, although it concerns dismissals. In the case of the most progressive firms in industry to-day—those with good management and good personnel organisations-their great Problems are on training on career prospect, on career development, on suitable placement and on human relations generally. Of course, there can be any amount of injustice equal to, if not greater than, dismissal in the personnel management of a particular firm. In one way I am even prepared to argue paradoxically—because this is perhaps much more relevant now, when unemployment is so high—that it is a pity we are having to think so much in terms of dismissal.
There are times when it may be the duty of an employer to get somebody to move on, to go into a job for which he is more suited. When we come to the ideal society which bodies like the Industrial Society are trying to create, one will look back on the provision of this particular Bill, this protective Bill, as a sign of the low degree of civilisation which prevailed at the latter part of the 20th century. I hope, therefore, that while we

1455
accept Clause 22 as an advance, we will realise that, important though it is at the present stage of development of our society, there are many wider and more difficult areas still to be touched on. Meanwhile, it will mean a good deal of anxiety for the responsible employer and occasionally some of the less responsible and dishonest ones will get away with certain things despite the intentions of the Government. I must say that if we had a code it would be easier.
EARL JELLICOE: I do not wish to prolong the discussion. I should like to thank noble Lords for their reaction to this clause. I know that it does not cover all the ground which some noble Lords opposite would wish, but I believe it is a very considerable advance. I think I made it plain at the outset of our discussion how shocked I had been to discover how backward we were in the particular area compared with our friends and neighbours. I should like to take careful note of what the noble Lords, Lord Brown and Lord Shackleton, have said. I think that Lord Davies of Leek was casting a bit wide. Compensation is covered in Clause 111 and the question of continuity of employment we shall be coming to shortly. It is in Clause 26.
Clause 22 agreed to.
Clause 23 [Dismissal in connection with a lock-out]:
4.47 a.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 215:
Page 18, leave out from beginning of line 24 to end of line 10 on page 19, and insert ("shall be an unfair dismissal")
The noble Baroness said: This Amendment is a fairly drastic one; it knocks out almost the entire clause. If a slightly light note may be appropriate, perhaps I may be permitted to read a note on this Amendment supplied by one of our trade union colleagues. It says:
"This Amendment cuts out all the flim-flam verbiage of the Bill and puts things in clear and straightforward language."
This rather lengthy clause, as amended, would read:
"The dismissal of an employee by way of a lock-out shall be an unfair dismissal."
This may seem a slightly frivolous Amendment. There are, in fact, reasons
1456
which will be adduced on the subsequent Amendments and by my noble friends on the Question, That the clause stand part, why we are not at all happy about this particular clause. But I must in all fairness admit that I could hardly expect the Government to accept the Amendment as it stands. I think we can at this stage fully understand the exasperation of the colleague who sent in this note on the Amendment. It is just the feeling of the ordinary chap who has to work in the factory, on the shop floor, that this Bill is a peculiarly lengthy and difficult one. And this notwithstanding that I admit that in many ways this section of the Bill includes a number of points which are to the advantage of the worker and which we included in our own Bill. In the circumstances, I think your Lordships will understand why I do not propose to press this Amendment, but I thought you might like to know why it was put down.
THE LORD CHANCELLOR: The noble Baroness's anticipations are perfectly correct. Although she did not actually say so, the effect of the Amendment would be to make all dismissals by way of lockout unfair. The view must be accepted that if you allow strikes, lockouts may be rare, but they are, in principle, equally admissible. They are an element in free collective bargaining like strikes, and an attempt to put them outside the law would be just as remote from reality as an attempt to put strikes outside the law. The provisions of this clause seek to be neutral in their effect on the right to lockout. Non-re-engagement at the end of a lockout is protected and the remainder of the clause adapts the provisions of Clause 22 to the special case of a lockout; it being clear that if a worker is not re-engaged when the others are he has, for the purposes of Clause 22, with the necessary modifications, been unfairly dismissed. But the noble Baroness's version that no dismissals by way of lockouts could ever be fair is one that we could not accept.
On Question, Amendment negatived.
4.52 a.m.
BARONESS WHITE BARONESS WHITE moved Amendment No. 216:
Page 18, line 39, leave out ("or by an associated employer")
The noble Baroness said: This is an Amendment on which we feel very strongly, because in our view it would be an extremely unsatisfactory outcome if, following a lockout, an offer of re-engagement were made to an employee, not by his own employer or by a successor to that employer, which might be perfectly reasonable, but by an associated employer. The definition of an associated employer is given at the bottom of page 119 of the Bill, where it is stated: " For the purposes of this Act any two employers are to be treated as associated it one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control, …"
Quite plainly, this opens a very wide field. This provision seems to us to offer very considerable scope for concealed vic-timisation following a lockout. I put it to the Committee that there is already scope in a lockout situation in a very large company if an employer wishes to be vindictive. We can all think of companies with innumerable establishments—I.C.I., Courtauld's and various others spring to mind.
I admit that within a single company it would be possible for an employee to be shunted from the place where he had previously worked to some other establishment belonging to the same company. When one notes what has happened with mergers during the past few years one sees that the scope for this is very wide, though I must admit, having four Courtauld factories in my former constituency at this moment, and since Flint has reverted to its Labour allegiance, I might congratulate someone on being sent to Flint. But, seriously, this provision could lead to all kinds of abuses. Nevertheless, one appreciates that within the purview of a single company it would be difficult to prove that there was an element of victimisation. Surely it would be more satisfactory if we extend the possibility to an associate company, which may be associated purely in a financial sense and is under different management, and where the terms and conditions of employment are entirely different and contain things that might be disadvantageous and upsetting to the workers concerned. A lock-out is a condition of emnity between employer and employees and, if the matter is to be resolved, there should be neither actual
1458
vindictiveness nor the appearance of vindictiveness. It is because we believe this subsection as drafted leaves open the possibility of vindictiveness and the appearance of it, even though vindictiveness was not actually there, that we think the Amendment I am now moving should be made.
LORD ARDWICK: I would support my noble friend on this Amendment. It looks at least at first glance, as though the effect of this subsection may be to make it permissible to offer a man who works at Land's End reinstatement at John o' Groats. The noble and learned Lord, the Lord Chancellor, will correct me if I am wrong. What kind of reinstatement is that? Everyone knows that some of the big firms to-day have their private Siberias, some Godforsaken outposts of their empires, where unsatisfactory executives may be sent. This is one of the perils of executive life today. I do not think we want to extend it to other classes of worker. Surely this is a clause at which the Government should look again and put some limit, perhaps geographical, upon it.
LORD BERNSTEIN: I should like to support this Amendment, which is very importent. Perhaps, when the noble and learned Lord, the Lord Chancellor, replies, he may explain to me how difficult it would be for an employee, after a lockout, to circumvent the protective provisions of this clause and, the other way round, how easy it would be for an employer to do the same thing.
THE LORD CHANCELLOR: This Amendment extends no adequate or additional protection to the worker and makes the clause unnecessarily rigid and less effective. What the noble Lady has not seen, I think, and what is my answer to the noble Lord, Lord Bernstein, if I understood him correctly, is provided in subsection (3), which says:
" In this section any reference to an offer of re-engagement, in relation to an employee. is a reference to an offer (made either by the original employer or by a successor of that employer or by an associated employer) to re-engage that employee, either in the position which he held immediately before the effective date of termination or in a different position which would be reasonably suitable to him."
In other words, he has either got to get back the same job or a similar job reasonably suitable for him. That precludes

1459
those private Siberias and unreasonable shunting in geographical space. What the noble Baroness has sought to do is to achieve the protection already achieved in subsection (3) by making changes wholly incapable of extending that protection; that is to say, by omitting the words "associated company" from subsection (3). The reason why it does not offer any protection at all clearly emerges from the speeches that have been made in support of the Amendment, because the large organisations which are the main ones that have associated companies could, but for the protective words that are already there, allow shunting all over the country and in every kind of grade within the same company or its successor company. There would be no difficulty about that.
The mere chance that the offer of re-engagement comes from an associated company does not, in fact, deprive the employee of any effective protection. The effective protection comes in the other words of the clause. On the other hand, we think that on some occasions—t may be on rare occasions—t may be neither practicable nor desirable for the original employer to re-engage all the employees who were locked out. There may have been during the lockout changes in the employer's circumstances and organisation. One change in organisation may have been precisely that contemplated in the terms of the subsection by the use of the phrase "associated employer". For example, it may have been decided—nd such a decision would be perfectly proper: it may even have been decided after consultation with the very unions concerned—hat some operations should be undertaken exclusively in the same locality by an associated company instead of the original company.
In such circumstances, it would obviously be both logical and reasonable that an offer of re-engagement should be by the associated company rather than by the original company as the correct way of protecting the employee from victimisation, which is the object of this clause. The original company might have restricted his activities to another locality, and an offer of re-engagement by the original company might very well involve the very shunting which the noble Baroness wishes to avoid.
1460
The noble Baroness rightly drew attention to the definition clause. The phrase "associated company" is defined in Clause 158(6), which provides that:
"…any two employers are to be treated as associated if one is a company of which the other (directly or indirectly) has control, or if both are companies of which a third person (directly or indirectly) has control; and in this Act 'associated employer' shall be construed accordingly."
In other words, the effect of the Amendment might—lthough no doubt this is not the noble Baroness's intention—e to deprive the employee of precisely the right that she wishes to give him, whereas the right which she rightly desires to give him is adequately protected, so far as words can do it, by the existing words of subsection (3), which will remain in the clause whether the Amendment is passed or not. In those circumstances, without any animus at all, I would ask the noble Baroness to consider whether she wishes to press her Amendment.
5.4 a.m.
BARONESS WHITE: I quite see the reasoning of the noble and learned Lord, but he will appreciate from subsequent Amendments which are down to this clause that we are suspicious about this clause altogether. Although he supposes that the final phrase in subsection (3), "which will be reasonably suitable to him", safeguards the worker in all possible circumstances, he will understand that we do not feel that, as it stands, it is adequate. We shall be referring to that in a moment or two on the next Amendment. We know from representations which have been made to us that there is considerable suspicion among the trade unionists about this reference to "associated employer", and therefore I think it is essential that we should put the point that there is not merely this feeling of suspicion that they could be done down by being pushed to another area of the country, but be moved into a completely different milieu, with completely different conditions, spirit, and so on, in the firm, which might be resented, even if they are not sent to a notional Siberia, to which my noble friend Lord Ardwick referred. My late father once told me that in his day there was a section in the Civil Service devoted to coast erosion which served the same purpose.
THE LORD CHANCELLOR: The result has been that the coast has been very considerably eroded.
BARONESS WHITE: Yes, very true. I do not feel that I can withdraw this Amendment. If I did, I should have a feeling of disloyalty to those who have made representations to us. I cannot accept the invitation of the noble Lord that I should withdraw it.
LORD BERNSTEIN: The noble and learned Lord the Lord Chancellor said previously that he had great experience when he was at the Bar in dealing with and acting for unions and employers. Can he assure us that it will not be child's play for an employer, after a lock-out, to circumvent the protective provisions of this clause? It seems to me full of loopholes.
THE LORD CHANCELLOR: Nobody can ever give an assurance that no human ingenuity will circumvent the words of the Statutes. I should be held to be ridiculous in the eyes of my profession if I gave any such assurance. So far as words can give it, the words of subsection (3) give the kind of protection which the noble Baroness was seeking by her Amendment.
LORD GARDINER: Can the noble and learned Lord the Lord Chancellor say what the words "the position" mean? If he is offered back employment in "the position" which he held immediately before the effective date it does not have to be reasonably suitable to him. Does that mean "the position" with the particular company, or does it mean that he is a plater's helper and so long as he is offered a job as a plater's helper it reed not be reasonably suitable to him, even if it is in a different part of the country? Is the argument: "It will make it easier for him to get a job as a plater's helper if we extend it not only to his existing employer, but to a different employer—hy not include third parties and say that they can get him a job as a plater's helper anywhere or by any employer; that should be sufficient"? The fact that two entirely different companies happen to be owned by a third company from the worker's point of view makes the other employer a complete stranger, and the mere fact that the shares of the company are owned
1462
by the third company I should have thought was irrelevant from the employee's point of view.
THE LORD CHANCELLOR: I had construed the meaning of "the position" as a man getting his old job back, not just a similar job. It does not follow, for the reasons I have indicated, that the particular company need necessarily be the same; it may be a successor company or an associated company. If he was employed to look after the level crossing at Wittleston he would not be getting the same job back by being offered a chance to look after the level crossing at Barnes.
On Question, Amendment negatived.
5.10 a m.
BARONESS WHITE BARONESS WHITE
moved Amendment No. 217:
Page 18, line 40, leave out ("either").
The noble Baroness said: This and the following Amendment should be taken together. The reason for our proposing to amend the clause in this way is, as I indicated earlier, that we are not satisfied that the phrase "which would be reasonably suitable to him" is either adequate or appropriate to safeguard a worker in this particular position. I was very much interested that in our discussion on a previous Amendment the noble and learned Lord the Lord Chancellor referred to consultation with the trade union because there is nothing about that in this clause. This is precisely what we are suggesting could with advantage be inserted in this clause.
Again, we have the apprehensions of our trade union colleagues that as the clause now stands a man following a lock-out can be placed in a difficult position which would be reasonably suitable for him, but only in the opinion of his employer. So far as we understand it, this is the state of affairs: that it is the employer who decides whether or not a different position would be reasonably suitable for the man concerned. The man himself is in a weak position; he has no say, really, against the employer. He can argue that he does not think that it is particularly suitable for him or that it is a reasonable thing, but he has no protection if the employer says, "Oh, but in my opinion this is a perfectly suitable job for you". And, provided that it was not within outrageously unreasonable

1463
limits, it seems to me that the man would have no redress at all. Even if it were unreasonable, I do not think he would have any redress—although perhaps we could be advised on that.
Surely in the circumstances where there has been a lock-out—nd, as I said on a previous Amendment, a lock-out is not a happy situation ever—here is bound to be suspicion, especially if it was not his own job which was argued about but a different job, that there is an element of victimisation. Whether the victimisation might be due directly to the lock-out, or whether there was some inherent trouble before which resulted in the employer locking out his workers, would depend of course on the circumstances. But surely the Government ought seriously to consider the proposed Amendment. We are not suggesting that in all cases the worker should have an absolute right to his former job. We recognise that there may have been changes of circumstance, as the noble and learned Lord mentioned, and therefore we admit that there might be a position in which it would be reasonable not to give the man back the job from which he was locked out but a reasonably suitable and comparable job. But the absolute decision as to whether it was suitable or not should not rest exclusively with the employer.
Therefore, we are suggesting here that where there are special circumstances which make a different job desirable, instead of the man's own former job, the matter should be agreed with the man's trade union or other independent organisation of workers. This is a very sensible Amendment and one which we think would bring out what I hope is the genuine intention of the Government in this clause: that it should be a really fair action towards an employee who had been locked out. If they wish this clause to be both fair in actuality and fair in appearance, then I feel certain that on reflection they will agree that this extra provision is most desirable. I am indeed fortified in putting this Amendment before your Lordships by the reference—aybe the inadvertent reference; I do not know—by the noble and learned Lord the Lord Chancellor earlier on this clause that there should be consultation with the trade union. I hope, therefore, that the Government will be disposed to accept this Amendment.
LORD ARDWICK: I should like to support this Amendment very strongly. It may not perhaps be essential in the bigger firms where there are sophisticated labour managers who have taken degrees in psychology at the London School of Economics, but I can visualise it being very necessary with a small firm, particularly where you the owner is the manager who has had trouble. He may feel righteous indignation and may take unconscious punitive action. People are terribly attached to their jobs; it can be a terribly emotional experience to move from one job to another. In those circumstances, I think the worker should have the protection of trade union counsel and help.
THE LORD CHANCELLOR: I do not agree with the noble Baroness about this. In the first place, if we do come to reading one another's speeches, which is not a task I would ordinarily prescribe even to a political opponent, I think she will see that when I made reference to the possible agreement of the trade union I did not imply that it would universally be the case. I was pointing out that a switch from an original employer to an associated company was not necessarily a disreputable thing; it could occur with the full approval and after agreement with the trade union.
The purpose of these two Amendments is to insist upon agreement with the trade union in every case of re-engagement. I think this is a mistake, both because it is unnecessary and because it is likely to prolong industrial strife of this kind. The noble Baroness has really mistaken the effect of the clause as it stands. She asked the question: who is to decide—nd she quoted the latter words of Clause 23(3)—heher the different position would be reasonably suited to the employee? She then put it as a dilemma; is it to be the employee himself or the employer? The answer, is neither. The question can only be decided in case of dispute by the industrial tribunal, who will decide whether the employer's offer of re-engagement is substantially different and not reasonably suited for the employee; or it may decide that the employee's failure to accept the offer was a failure to accept an offer which was reasonably suited to him. It is not a matter for the employee to decide or for the employer to decide, unless they agree. One always

1465
wants these unhappy episodes, whether strikes or lockouts, to come to an end, but if everybody has to be settled into exactly the jobs the union agrees one can see indefinite prolongation of lockout in this case, though in the next Amendment, strikes. The noble Baroness, with her customary candour, said that she felt bound to put it forward from loyalty to trade union colleagues, a sentiment I can only applaud. I submit that the apprehensions are without fundation, and in fact the effect of the Amendment would probably be counter-productive in terms of industrial relations.
BARONESS WHITE: The noble and learned Lord was mistaken. It was on the earlier Amendment about the associated employer that I referred to loyalty to his colleagues: not this one.
THE LORD CHANCELLOR: I think the noble Baroness said both.
BARONESS WHITE: No. It is perhaps a little early in the morning and we are not quite as alert as we might be. I should like the noble and learned Lord and his colleagues to consider the position of a man who goes to the industrial tribunal—hat sort of life is he going to lead in the firm? First, he has been a party to a lock-out, which in itself is an unhappy situation. Then lie takes his employer to the industrial tribunal because he disagrees with the employer's choice of job on reinstatement. Is he really likely, in those circumstances, to settle down happily, and are industrial relations really likely to improve? Here again is an example of the Government all the time trying to take matters out of the hands of those directly concerned and put them into the hands of the tribunal.
I do not believe that this will lead to better industrial relations, because all the time one is removing the centre of reference from the employer and the trade union to an external and extraneous body. I speak with some experience of industrial relations, and I can say that this does not lead to a satisfactory state of affairs within an establishment. It is far better to let people try to sort out their own problems; and what we are suggesting here is perfectly reasonable—hat the trade unions should be brought into consultation in such a situation so that there is a fair balance as between
1466
employer and employee. The employee on his own, without the backing of the trade union, is in a weak situation vis-á-vis
his employer: we must recognise that. And to rely on this sort of quasi-judicial action all the time, instead of getting people to sort things out for themselves, is not in our opinion at all conducive to better industrial relations. I am afraid I am completely unconvinced by the argument of the noble and learned Lord, the Lord Chancellor, and this is a Division which I hope we shall take.
THE LORD CHANCELLOR: I do not want to stop a Division but I do want to stop a misunderstanding, because the noble Baroness has betrayed in her last remarks that she has wholly failed to understand the situation which is postulated both in the Amendment and in the clause as it stands unamended. She gave us to understand that what she complained of was that a man, re-engaged in this situation, would not settle down happily again in his firm. Again, she compassionately told me it was rather an ungodly hour to be discussing complicated legal matters. I accept that, but the whole point of this clause, and indeed the whole fascicule of clauses that we have been discussing, is the man's rights on unfair dismissal. What is postulated is that the man does not go back: he goes to the tribunal for compensation over non-reinstatement. It is not a question under this fascicule of clauses of his titling in happily back in his employment, whether we are dealing with Clause 21, 22 or 23. He claims that he has been unfairly dismissed. The employer says, "You were not dismissed because you went of your own accord, or you were dismissed fairly." But there is no question of his settling happily back into his firm, because that can only happen if the offer of reinstatement is accepted and not refused. This clause postulates that he would have refused it.
BARONESS WHITE: But he would have refused it because he was being offered a different job.
THE LORD CHANCELLOR: Certainly.
BARONESS WHITE: On the grounds that he does not regard it as being reasonably suitable to him. Why should he be put in the position of having to

1467
refuse a job because he finds it unsuitable?
THE LORD CHANCELLOR: The noble Baroness does not seem to realise that this is a clause about compensation. The parties have disagreed about what is reasonable. Somebody has to decide what is right and whether the right to compensation arises. It is only at that point that the question of compensation becomes relevant at all.
BARONESS WHITE: Why should he be obliged to seek compensation? This is a legalistic attitude, if I might respectfully suggest, which has very little connection with the realities of industrial life. We are suggesting a way out of this; we think that if there were consultations with the trade union in this matter it would be much less likely that the man would refuse a job because it was unreasonable. If his trade union said, "This is really a perfectly sensible offer", he would not be placed in the position where he had to go to the tribunal to claim compensation for what was in effect dismissal because he had been offered an unsuitable job.
THE LORD CHANCELLOR: It is not a question of consultation with the trade union. What the noble Lady is asking for is agreement with the trade union. This is not a clause about terms of re-engagement or consultation; it is a clause about compensation. If the noble Lady does not like the whole provisions for unfair dismissal and thinks it is a lot of legalistic nonsense, then I could understand it although I would not agree with it. The whole approach of the Opposition throughout this long night has been that this is a marked advance on previous practice. The whole postulate which is made with regard to this clause is that for some reason the parties have fallen out; the workman is not in his previous
job. He complains (a) that he has been dismissed and (b) that his dismissal is unfair.
VISCOUNT CALDECOTE: The last thing I want to do is to get between the noble Lady and the noble and learned Lord; but surely, if the noble Lady is right, the first thing that will happen is that the man will go to his trade union representative and say, "Things are not going right for me. I have been unfairly dismissed. I have not got my right job back". It will happen automatically; there is no need to introduce this additional point. If the noble and learned Lord is right, the issue does not arise at all.
BARONESS WHITE: As the Bill now stands, the trade union has no locus in this matter, as we see it. At this hour of the morning I do not think we shall get very much closer to each other.
THE EARL OF BALFOUR: May I put another point here? Although I have some sympathy with the general ideas behind this Amendment, I feel the real difficulty would arise if the trade union and the management did not agree. Under this clause the employer must make every effort to reinstate the employee, but it is everybody's wish that both unemployment and redundancy should be discouraged. Furthermore, I think one of the problems with this Amendment would be that any disagreement between the union and the management would be much more likely to affect the employee than the employer, and I do not think it would achieve the object.
5.28 a.m.
On Question, Whether the said Amendment (No. 217) shall be agreed to?
Their Lordships divided: Contents, 25; Not-Contents, 76.

CONTENTS

Ardwick, L.

Diamond, L.

Milner of Leeds, L. [Teller.]

Bernstein, L.

Donaldson of Kingsbridge, L.

Ritchie-Calder, L.

Beswick, L.

Gardiner, L.

Shackleton, L.

Blyton, L.

Garnsworthy, L. [Teller]

Shepherd, L.

Brown, L.

Greenwood of Rossendale, L.

Stow Hill, L.

Burntwood, L.

Hanworth, V.

Taylor of Mansfield, L.

Champion, L.

Hoy, L.

Wells-Pestell, L.

Davies, of Leek, L.

Llewelyn-Davies of Hastoe, Bs.

White, Bs.

Delacourt-Smith, L.

NOT-CONTENTS

Aberdare, L.

Effingham, E.

Massereene and Ferrard, V.

Amherst of Hackney, L.

Elliot of Harwood, Bs.

Mottistone, L.

Balfour, E.

Exeter, M.

Mowbray and Stourton, L.

Barrington, V.

Falkland, V.

Moyne, L.

Bathurst, E.

Ferrers, E.

Nugent of Guildford, L.

Beaumont of Whitley, L.

Fisher, L.

Pender, L.

Belhaven and Stenton, L.

Gisborough, L.

Penrhyn, L.

Belstead, L.

Glendevon, L.

Rankeillour, L.

Brabazon of Tara, L.

Goschen, V. [Teller]

Redesdale, L.

Brecon, L.

Gowrie, E. [Teller.]

St. Aldwyn, E.

Caldecote, V.

Gray, L.

St.Just, L.

Chelmer, L.

Hailes, L.

St. Oswald, L.

Clinton, L.

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

Sandford, L.

Cork and Orrery, E.

Sandys, L.

Cottesloe, L.

Halsbury, E.

Sempill, Ly.

Craigavon, V.

Harvey of Tasburgh, L.

Strange, L.

Cranbrook, E.

Henley, L.

Strathcona and Mount Royal, L.

Croft, L.

Hives, L.

Cullen of Ashbourne, L.

Hood, V.

Sudeley, L.

Daventry, V.

Ilford, L.

Suffield, L.

De Clifford, L.

Jellicoe, E. (L. Privy Seal)

Swansea, L.

Denham, L.

Kemsley, V.

Teviot, L.

Drumalbyn, L.

Kinnoull, E.

Thorneycroft, L.

Dudley, E.

Lansdowne, M.

Tweedsmuir, L.

Ebbisham, L.

Lothian, M.

Vivian, L.

Eccles, V.

Lyell, L.

Windlesham, L.

Resolved in the negative, and Amendment disagreed to accordingly.

5.35 a.m.
LORD BYERS LORD BYERS moved Amendment No, 219:
Page 18, line 43, at end insert ("but provided in either case that the employee suffers no loss of seniority or pension rights").
The noble Lord said: It follows from all that we have been saying on Clause 23 that, when an employee has been dismissed by way of a lock-out, and is taken back again, he is not meant to be penalised at all and therefore he should not lose seniority or pension rights. I think it follows that there are only three possible answers to this Amendment, which is self-explanatory. The first is that in point of fact this is provided for in another Part of the Bill, where we have not been able to find it; the second is that the Government accept it; the third is that the Government accent it in principle but that it is ill-drafted and they will put it right. Any of those three answers will be equally acceptable.
THE LORD CHANCELLOR: I think that in a sense I am going to give all three answers, although they are at first sight wholly inconsistent with one another. I hope the noble Lord will forgive me if I take perhaps a little longer about it than I would have liked at this hour, because I want him to understand what I am going to say about it. I think the question of pension rights
1470
may very easily require 'further consideration in this context. I do not think it can arise in qu e way, or with the same effect, that the noble Lord expects. Obviously if a man goes back into this employment he goes back into his employment, and therefore no question of unfair dismissal will arise because he has not been dismissed. That is the first proposition. In all these cases, we have dealt with dismissal per se; we are now dealing with dismissal after lockout, and we shall be dealing with dismissal after strike. What you are postulating here is that the man does not go back into his employment and claims that he has been unfairly dismissed. I have already given the third of the answers which the noble Lord asked for; namely, that I agree that seniority and pension rights do require some special consideration. So that is answer number three.
I am going to give the straight answer to the actual point; in the situation postulated in this clause, which is that the man does not go back and claims that he has been unfairly dismissed; the answer is somewhere else in the Bill. The answer is that that adds to his compensation. It must add to his compensation because the loss of his seniority and pension rights are part of the damage which he suffered. It is a part of Clause 111, and Clause 113 is necessarily involved in it. If you add both those answers together you get the last one, that even

1471
if this is right it must be rather insufficiently drafted to have produced two rather inconsistent answers to the same question. Both, I think, are right, and I think it is fair to ask us to look at the question of pension rights and seniority; but for the reasons I have given it cannot come in here and in this way.
LORD BEAUMONT OF WHITLEY: I am not entirely certain that I understand the explanation of the noble and learned Lord, but I am much comforted by his undertaking to look at the whole question of pension rights. Unless anyone else wishes to join in, I beg—
SHACKLETON: Before the noble Lord withdraws the Amendment, may I say this? The noble and learned Lord did not keep us very long. I gather that he is going, to look again at this matter. The provisions for compensation could not possibly the value of a pension which had been acquired over a long period. I may be wrong but it is not quite enough of an answer to say that this would meet the case. This is perhaps one of the most crucial issues. I agree that in the light of the answer the noble Lord is quite right not to press the Amendment, but I suggest that the noble and learned Lord also looks at the totality of the loss.
THE LORD CHANCELLOR: I would certainly accept that. In fact, that is what I am saying, because the same problem must arise in non-re-engagement after a strike or in straight dismissal under Clause 21. But it will depend on the size of the pension and the degree of loss of seniority, whether the compensation will cover it or not. The only reason why it might not cover it is not that in principle it could not under Clause 111, but that it might hit the ceiling under Clause 113.
LORD BROWN: If in drafting these Bills the Government, instead of using this rather indeterminate word "position", which has already led to some debate, had used the more sophisticated word "roll", which covers not only the job but all the benefits attached to the roll, and if the word were clearly defined in the definition clause, a lot of the questions
1472
which have arisen need never have arisen.
THE LORD CHANCELLOR: I will convey the noble Lord's view to the Parliamentary draftsmen.
LORD BEAUMONT OF WHITLEY: I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
5.44 a.m.
On Question, Whether Clause 23 shall stand part of the Bill?
LORD DELACOURT-SMITH: As I think will have been apparent, this is not a clause which finds very much favour in the eyes of my noble friends. It appears to constitute virtually an encouragement to employers who have declared a lockout to take what must clearly be a further and separate step of sacking workers, even those who are not actually involved in the lock-out. I find the wording of subsection (I) rather puzzling and confusing and I am not sure what dismissal by way of a lock-out tended to mean. It certainly is not intended to mean that the act of declaring a lock-out is itself to be a piecemeal dismissal, because it is clear that the people involved in the lock-out may be different from the people involved in the dismissal and it is certainly quite clear that the dismissal may start later than the lock-out or at the same time. I should not have thought that this was a procedure to which we wished to give any appearance of respectability in the Statute.
I have in mind examples which have occurred, such as the very prolonged dispute in the Roberts Arundel works as a result of a refusal of trade union recognition. It developed into a lock-out, and at a further stage, if my memory serves me aright, the employees concerned were dismissed.
Of course, this act of dismissal, in this context, is a further means of putting a degree of pressure upon the workers concerned. I am bound to say, too, that our general unease about this clause and our general belief that it will not be beneficial has certainly not been allayed by the discussion about the associated company point, for surely one effect of including associated companies, which seems a very remarkable inclusion, is that it will assist, in one sense, in the employer offering re-engagement, since he will have a wider

1473
range of employments (or of positions, perhaps, if I may use that word) to put on offer to the individual employee. He will also have the facility, as a result of this, to break up the original work-force and distribute it more easily over a number of concerns. That can be one effect, and it certainly will be a reason which will be read into the inclusion of this particular phrase. As I say, for a variety of reasons this is a clause which does not commend itself to my noble friends, and it is one, I think, on which we shall feel bound to divide the Committee.
THE LORD CHANCELLOR: Again, I do riot want to stop the Committee from reaching a Division. I think the Whips rather enjoy Divisions after a long night, and I am far from denying them their simple pleasures. But I do want to avoid misunderstanding, especially as what we say here is sometimes capable of being reported outside. It is wholly unjust to suggest that this is a clause which encourages lock-outs or victimisation after lock-outs, any more than the next clause encourages strikes or victimisation after strikes. We are dealing here with unfair dismissal. The first group of clauses clearly had to define the straightforward case when, in the absence of any industrial unrest on either side, a man's employment was brought to an end. That we discussed. But, obviously, those considerations do not apply either where a strike takes place and some of the employees are re-engaged and others are not, or when a lock-out takes place and some of the employees are re-engaged and others are not. This is a situation which requires a separate set of definitions. We have sought in each case to apply, mutates mutandis, the same criteria to re-engagement after a resumption of work as apply to unfair dismissal per se
In passing, may I say to the noble Lord that I am quite unconvinced that the clause could apply to someone who had not suffered as a result of the lockout. That would be a straight case of dismissal under the earlier clauses, as I understand it. What is contemplated in the clause we are discussing, Clause 23, is a dismissal by way of lock-out—that is to say, a termination of the contract of effective employment—followed in some cases by a resumption of work, which is referred to in the first subsection,
1474
but, in the case of particular workmen who are the potential claimants before the industrial tribunal, by a non-re-engagement or by an offer of work which they thought was unreasonable. The best we can do—and it seems to me a perfectly reasonable stand that we have taken—is that either they are given the same job, or are offered the same job, which can give rise to no kind of dispute. Or they must have been offered a job which the industrial tribunal, which is the arbitrator between the parties, find to have been reasonably suitable for the applicant. That seems to be fair. The point about the associated company is basically a technical one and I will not pursue it. Basically our stand is: either the same job or something which the impartial tribunal says is reasonably suitable in the circumstances. I do not see how human ingenuity can do better.
LORD DELACOURT-SMITH: I can understand, in the light of the explanation given by the noble and learned Lord, the process of reasoning by which the Government have included this clause in this form in this Bill. I remain of the opinion that it will create the impression I have described. May I press the noble and learned Lord. Could he comment a little on this phrase which still puzzles me: "by way of lock-out"? Does this mean dismissal of an employee arising from a lock-out situation?
THE LORD CHANCELLOR: I am not perhaps in my brightest condition at this hour, but I had understood it as meaning that by the act of lock-out a large number of people are dismissed. The fact of a lock-out is in a sense a dismissal. Then comes the resumption of work postulated at the end of subsection (1). But to the dismay of the potential claimant, whereas his mates resume their work in their old situation he is not offered re-engagement in his old situation; and if he is offered re-engagement it is in a situation which he regards as not reasonably suited for him. This is the situation that I think the clause postulates. I hope I have put it plainly.
LORD DELACOURT-SMITH: I am sorry to rise again on this. The noble and learned Lord still has not met my difficulty. He said that the start of this was that the act of lock-out was the act

1475
of dismissal. I cannot reconcile that with the further phrase in line 25, "whether the dismissal occurs at the beginning of the lock-out or during the course of it"
THE LORD CHANCELLOR: I am obliged to the noble Lord. I think he has a point which I ought to have explained. Neither a strike nor a lock-out automatically brings an end to the contract of employment. Indeed, it is one of the anomalies of the legal situation created by strikes and lock-outs that even if there is a breach of the contract on one side or the other it does not normally bring an end to the contract of employment. But a lock-out can take the form of a purportive dismissal; men can be handed notice. That is the first case postulated in brackets. The same thing can happen during the course of a lock-out which has not begun in that way: by the men being handed their notice in the course of it. That is the distinction that the noble Lord has asked me to explain. I hope that I have now made it clear.
LORD DELACOURT-SMITH: I thank the noble and learned Lord for his explanation but I am afraid it still does not make my noble friends any happier about the clause as it stands.
THE EARL OF BALFOUR: I wonder whether I could make this clause clearer. It is really a very simple and very essential one and I hope the Committee will understand it. In Clause 23(1) it states:
"The dismissal of an employee by way of a lock-out…shall not be regarded as unfair if the employee is offered re-engagement as from the date of resumption of work."
Subsection (2) states:
"Where an employee who has been so dismissed, and has not been offered re-engagement as from the date of resumption of work, claims that he was unfairly dismissed"
then the employer shall be considered to have unfairly dismissed this employee, as in Clause 22. Subsection (3) states that an offer of re-engagement made by an employer or the employer's successor means the employee is offered a similar position reasonably suitable to him. Subsection (4) merely gives a definition
1476
of the date of resumption of work. I think this is simple if you think of it from that point of view and cut out most of the difficult legal language. It is very simple, and I am quite certain that it is entirely in the employee's interest.
LORD GRAY: Reference has been made to recourse to an industrial tribunal. May I ask under which clause a complaint could be made? If it is under Clause 102, is it possible that the word "re-engagement" should have been included in Clause 102(1)(c)?
THE LORD CHANCELLOR: I am sorry, would my noble friend repeat that?
LORD GRAY: Reference has been made to the making of a complaint to an industrial tribunal with regard to Clause 23. I was asking under which procedure a complaint could be brought.
THE LORD CHANCELLOR: I do not think my noble friend has been following. A complaint against unfair dismissal begins at Clause 20 which defines it, because it says that it is an unfair industrial practice. The first three parts of the passage beginning at Clause 20 deal with a straightforward dismissal. There is no industrial unrest. It is there provided that the employee must prove that he has been dismissed and, if he does, the employer must prove that the dismissal was fair—if he wants to get off paying compensation. Obviously, the definition of "dismissal" contained in Clause 21 is inappropriate to a situation where there has been a break in the continuous employment, either by reason of a lock-out, which is Clause 23; or by reason of a strike, which is Clause 24. Clause 23 endeavours to provide a substitute definition of "dismissal" which is appropriate to the circumstances of lockout, and Clause 24 will seek to provide a substitute definition of "dismissal" which is appropriate to a strike.
LORD GRAY: I am grateful to my noble and learned friend. I do not think I made myself clear, but I will leave it now.
Clause 23 agreed to.
Clause 24 [Dismissal in connection with a strike or other industrial action]:
5.58 a.m.
LORD BEAUMONT OF WHITLEY LORD BEAUMONT OF WHITLEY
moved Amendment No. 220:
Page 19, line 18, at end insert-
("( ) that the strike or other industrial action took place in protest against default by the employer in the fulfilment of his obligations with regard to health, safety or welfare under the Factories Act 1961 or the Offices, Shops and Railway Premises Act 1913").
The noble Lord said: I have an unfortunate feeling that this Amendment may be in the wrong place. Nevertheless, I feel that the point we are trying to get over should be aired. I shall move it very briefly in case the Amendment is in the wrong place. This clause has to do with a dismissal in connection with a strike or other industrial action—particularly subsection (2), where it states that dismissal shall not be regarded as unfair unless various things are shown.
The principle behind this Amendment is fairly obvious. Whatever safeguards there should be against strikes, there should be no hindrance to a strike which is carried out on safety or health grounds. Where workers go into a factory and find that the guards which should have been round the machines are not there or that other safety equipment or protective clothing is not there, they would be justified in withdrawing their labour immediately, without going through any forms, until those matters have been put right. I am far from clear about whether this is the right place to insert these words, but this point has not been raised before and it certainly should be raised. I beg to move.
THE LORD CHANCELLOR: I think that we all sympathise with the noble Lord in supporting the ends of a strike designed to promote safety for one reason or another. That does not mean that the Amendment is appropriate or can be made appropriate, because it is really inappropriate to the nature of this clause. As I tried to say to my noble friend a moment ago, the clause deals with the alternatives where a man's employment is permantly terminated as the result of a strike situation, and the object of this subsection is to differentiate cases where these may be applied properly and with
1478
out unfairness or to identify where dismissal is unfair. The propriety or impropriety of a strike does not matter for this purpose.
A man may be dismissed unfairly as a result of a wholly improper strike or as a result of a totally proper strike, if the circumstances do not warrant the termination of his employment. What is sought in the subsection is to define the situation in which a dismissal, which takes place after an industrial upset of one kind or another, can be identified as unfair. The fact that a lock-out is justified would not make it fair under Clause 23, if it were otherwise unfair, and the mere fact that a strike is improper does not make it unfair, if the circumstances in Clause 24 are fair.
I am sure that the noble Lord will forgive me if I add that strikes of the kind he postulates are not particularly common. His Amendment relates to alleged breaches by an employer of his legal obligations under the Factories Act or the Offices, Shops and Railway Premises Act 1963. Breaches of these Acts are extremely common, otherwise many of us who practised in the courts would scarcely have made a living in our middle years, because this is one of the commonest sources of civil litigation and occasionally of criminal prosecution. When a union finds that there is a breach—and both workers and employers connive at breaches, otherwise people would not be injured—it does not usually call out its people on strike. It brings the factory inspector down like a ton of bricks on the employer, because that is what he is there for. Therefore this is to some extent an unreal situation. Supposing that, despite the two objections which I have given, you introduced this inappropriate thought into the identification of an unfair dismissal resulting from a strike, what would the result be? The result would be that the industrial tribunal, with all its merits for the purpose of discussing an unfair industrial action, would then have to discuss whether or not a breach had been committed of the Factories Acts or of the Offices, Shops and Railway Premises Acts; these are the common sustenance of the common law courts, which are the appropriate body to discuss the matter.
I think we really should get a conflict of jurisdiction of a most undesirable and

1479
unfair kind, without achieving any additional protection for the worker and without clarifying the law to any degree. It is not that I do not sympathise with the noble Lord about this; I just do not think that this Amendment, despite its admirable ideology, is at all well contrived for the purpose for which it is conceived
LORD BERNSTEIN: I must make my declaration. I have great sympathy with this Amendment, and I accept the Lord Chancellor's excuse.
THE LORD CHANCELLOR: I have succeeded at last.
BARONESS WHITE: Succeeded with my noble friend, but I am not sure about myself, because there are circumstances somewhat different from those which the noble and learned Lord has described. He has described breaches of the Factories Acts and of the Offices, Shops and Railway Premises Act which could be properly settled by the workers concerned, or by the trade unions on their behalf, calling in the factory inspector and, if necessary, taking action in the courts. But there are circumstances in which there is an immediate walk-out, particularly if the place is too hot or too cold. This is not something that will wait on litigation. If the place is too cold, the workers will refuse to work in it and they will walk out. I grant that it is not very likely in those circumstances that an employer would seek to dismiss one of his workers. But it could happen. Similarly, if there is inadequate ventilation, or inadequate shade when people are working under glass and it is too hot, then it is not by any means unknown for people to walk out.
Later on in the Bill my noble friend, Lord Garnsworthy, and I have a some-what similar Amendment, which quite frankly was designed to meet the position of teachers who may decide that the physical conditions in which they are asked to carry out their work are intolerable. It is unlikely that they will take such action; but it has happened. Therefore I do not think it is quite as simple as the noble and learned Lord, the Lord Chancellor, suggests.
Whether this particular Amendment is in the right place is another matter. I
1480
think we can all see what the noble Lord, Lord Beaumont, is getting at, and I for one have great sympathy with him. He wants it to be made perfectly plain that a strike in such circumstances would be justified, and that any dismissal following it would be unjustified.
THE LORD CHANCELLOR: Perhaps I can try again, because I may not be at my best at the moment. I fully accept what the noble Baroness says about there being circumstances where there is a walk out, though they are quite unlikely to be circumstances which arise out of the Factories Acts or the Offices, Shops and Railway Premises Acts, which usually refer to some permanent or persistent condition. But let us assume that the unusual happens, and that this does take place. In the ordinary case, as the noble Baroness said, nobody is dismissed: they just come back when the grievance has been settled in the proper way, and that is that. The same point arises as arose on the previous clause; either the workmen are re-engaged or they are not. If they are re-engaged there is no question of unfair dismissal. If some are re-engaged and some are not, then the dismissal is liable to be unfair under this subsection, whether the strike was justified or not. It is irrelevant from the point of view of fair or unfair dismissal, whether the strike was a good or bad one. A bad strike can give rise to an unfair dismissal, and a good strike could, in certain circumstances, give rise to a fair one. It is not a case between "goodies" and "biddies".
LORD SHACKLETON: The noble and learned Lord is being very helpful and clear. I do not think he has his facts quite right. The example of the walkout over temperature is explicity covered in the Acts which are referred to. The noble and learned Lord is right: if they did that, the odds are that they would go back. But, turning to another part of the Bill, I should like to ask him whether they would be guilty of an unfair industrial practice and, therefore, some stigma would attach and additional moral pressure could be brought to bear. This may be unsuitable to bring into the Bill. It is difficult with a Bill of these ramifications to think out what may be hypothetical circumstances and I hope we can

1481
push it a little further than we have been able to.
THE LORD CHANCELLOR:The noble Lord is cross-examining me about a different point. He must not complain if I turn out to be wrong in what I am about to say. Prima facie I would say that no unfair industrial practice was being committed in the circumstances. Take the case of one man who is asked to work an unguarded machine. There is no doubt that under Section 14 of the Factories Act the employer, by letting the machine run unguarded, is committing a criminal offence as well as rendering himself liable to damages for breach of statutory duty if the man is injured. If a man sees the unguarded machine and works at it, although it is rare for him to be prosecuted, he is aiding and abetting a criminal offence. If the breach of statutory duty would affect all the workers, or a large section of them, they could not be guilty of an illegal act if they refused to be accomplices to what, under criminal law, is a criminal act. This seems demonstrable on general principles of law without delving too deeply into the particular sections of the Act. Therefore, on principle, I think I must be right, but again I say by way of caution, that I am being cross-examined outside the sphere of the Amendment which I was invited to discuss.
6.14 a.m.
LORD BEAUMONT OF WHITLEY: I entirely take the point of the noble and learned Lord about this Amendment being in the wrong place, as I rather suspected it was. I should like to thank the noble Lord, Lord Shackleton, for probing, and the noble and learned Lord for replying to what was the real point of the Amendment. Although we got an "off the cuff" answer, it was quite a cheerful answer. I should like to take an unusual step and, instead of asking the Government to look at this question once more, ask the Opposition Front Bench if their great team of trade union lawyers might see whether this point really is covered by the noble and learned Lord's answer before we reach Report stage. But without waiting for an answer to that I will ask leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
6.16 a.m.
LORD DELACOURT-SMITH LORD DELACOURT-SMITH moved Amendment No. 221:
Page 19, leave out lines 27 to 40.
The noble Lord said: I do not find this clause easy to understand. To what extent shop stewards and trade union representatives in the work-place will be able, from an examination of it, to judge how far they will be within and how far outside the law, I should not like to say, but as I understand the situation, if the Amendment which I am proposing to the Committee were accepted the clause would give at any rate a measure of protection against victimisation arising from a strike or from other forms of industrial action. If this Amendment were adopted, the clause would leave the employer free to dismiss individuals so long as he treated all the employees who had participated in the action in the same way. If however the clause is not amended, it seems to invite a number of things, and in particular subsections 3(a) and 3(b) seem to provide almost an invitation to employers to victimise shop stewards. Dismissal is to be unfair in the other cases provided for by the clause, but here there is a specific exemption, and because the exemption is written in this way in the Bill employers may well take advantage of it. Indeed, the clause to which I am drawing attention seems almost to suggest that it will be fair for an employer to sack a steward or other official for his activities in organising a strike or sustaining a strike after it has started. But the activities, as I read it, providing for dismissal would not necessarily be connected with or arising from the strike.
This would really seem to go a long way to nullify the rights which are proclaimed in various parts of Clause 5; and I should be grateful for the comments of the noble and learned Lord on this matter. For example, if a group of workers in an engineering factory start some kind of industrial action, such as working without enthusiasm, and then write to their trade union seeking support, what is the position of the workshop representative who has written asking for this support, and what is the position of the employer in regard to him? Or if shop stewards who have men who are on strike, write to other shop stewards asking for financial support, what, again, is their position; what, again, is the position

1483
of the employer? I feel a considerable amount of disquiet about this clause as it is drafted, and it seems to me that this Amendment would make substantial improvement in it. I beg to move.
THE LORD CHANCELLOR: I am finding it increasingly difficult to give a lucid explanation of these complicated provisions, but again I will do my best to do so. The basic situation here is that we are trying to apply the unfair dismissal provisions of the Bill to a strike situation. As in the case of a lock-out—ecause strikes and lock-outs are part of the field of collective action in the struggle for power—o far as unfair dismissal is concerned we try to be neutral. It does not mean that we encourage strikes or lock-outs, but that we try to be neutral in applying unfair dismissal provisions both to the employers in the case of lockout and employees in the case of strike. Of course, the ordinary result of a strike, and what usually happens, is that the strike is followed by a resumption of work by all those who went on strike, but more often than not on terms slightly better or slightly worse, but slightly different, from the terms they were employed on before the strike began. That is how strikes are settled, and almost always there is a non-victimisation clause as part of the terms of resumption.
Subsection (2) of Clause 24 broadly states that there must be a degree of selectivity in non-re-engagement after a strike in order to render the dismissal unfair, and that is covered in paragraphs (a) and (b) The remaining four lines state that the reason—r if more than one, the principal reason—or non-reengagement is that the employee had taken one of the legitimate actions; I use the word "legitimate" as a compendious piece of shorthand to mean one of the actions specified in subsection (3). Subsection (3) then goes on to say that the things for which he cannot be dismissed are the exercise of any of the rights conferred on him by Clause 5(1) of the Bill, provided that the subsection does not apply to the activities of the trade union during the strike, because that is part of the industrial conflict which has taken place. These words, which are, I think, crucial to the meaning of the clause, are part of the provisions which leave it to
1484
the trade union concerned to make its agreement after the strike as regards non-victimisation effective. What is not allowed, on pain of attracting the compensation payable for unfair dismissal, is to select an employee for dismissal after a strike for the things which he is entitled to do under Clause 5(1), whether it is (a), (b) or (c), but in the case of (c) something he has done before the strike; the other provisions are not qualified in this way.
Then subsection (4) goes on to define the date of dismissal. I agree that there is a certain complication about this clause, but I hope I have expounded it, and I will try to answer any more specific questions that may be put. I recognise that this a difficult clause.
LORD BROWN: I recently spent three-quarters of an hour looking at this very complicated clause and the Amendment— think I understood it—nd it left me quite satisfied that if the Amendment were accepted the possibility of the victimisation of a striker would be much greater than it would be if the clause remained as it was. So I would suggest to my noble friends that we have heard what seems to me to be a proper explanation from the noble and learned Lord, and my own amateur researches left me with an impression which has been supported by the points he has made. I hope my noble friends will not pursue this Amendment.
LORD BERNSTEIN: After studying the Amendment, I came to the opposite conclusion. It concerns what might be called the ringleaders or strike-leaders; and I think this is a matter of great importance to trade unions.
THE LORD CHANCELLOR: Far be it from me to come between the two noble Lords! I am gratified by what the noble Lord, Lord Brown, says. It is difficult to enumerate the cases of victimisation which would be permitted if the Amendment were passed and those which would be prevented if the Amendment were passed. Which of them would be the more numerous I do not feel qualified to say. But the clause as it is drafted pursues an intelligible principle and one which can be defended, even if the results are marginally better or marginally worse. Obviously, from the point of view of noble Lords opposite,

1485
it would do some good; but I agree with the noble Lord, Lord Brown, that it would do more harm than good. However, I was not looking at it from the point of view of justice or injustice but of the principle that we are seeking to apply, and I was trying to explain it.
We have heard a great deal about the complication of this Bill. On the whole, it is not as complicated as its critics have said—othing like as difficult as income tax, town planning or company law.
LORD DAVIES OF LEEK: This is a difficult clause for all of us, especially the laymen. I have been looking at Clause 23 regarding the lock-out and the strike. Clause 23(1) says that a dismissal during a lock-out is not unfair if the worker concerned is re-engaged at the end of the stoppage. If he is not re-engaged, presumably it is unfair. In my opinion, Clause 24(2) and (3) lead to what has been called a paradise of confusion. The requirements must be considered in two stages. The first says that if the reason for the dismissal was that the worker took part in a strike, this shall not be regarded as unfair. It seems then that it is fair. But if one or more employees of the same employer who have been dismissed are offered re-engagement and the worker concerned is not, and the reason is because he was a member of a union or had taken part in the union's activities, then his dismissal or non-re-engagement is unfair.
We will pause a moment there. This seems to me to be a satisfactory non-victimisaion clause. But here comes the rub. The protection in subsection (2) above does not apply if the workers concerned took part in the activities of the trade union, and such activities, subsection (3) provides,
"occurred after the strike or other industrial action began".
Then his dismissal or failure to reinstate is fair. In my humble view this really leads to victimisation. I believe this clause to be so important that we should have the benefit of the good sense of the noble and learned Lord the Lord Chancellor to interpret it. He has been working so hard through the night that I should like him to look at this when he is fresh and clear and perhaps give us an explanation somewhat later in the Bill. I should not like to pit my interpretation against that of the noble and
1486
learned Lord, but I think I have got somewhere near the truth.
THE LORD CHANCELLOR: I certainly would reflect upon it for as long as the noble Lord wants, but I think he is rather near both to what the true construction is and Ito what I said it was. At the moment, I do not see any difference between what he has said and what I have said.
LORD BROWN: I think (the commonest danger to people who go on strike for unfair dismissal undoubtedly arises because the employer wants to get rid of the people whom he regards as ringleaders in the strike. One thing is quite clear in this clause: if there is an attempt to dismiss people because they led the strike—n other words engaged in union activities—they could claim protection under Clause 5(1)(c). That seems to me to be a valuable method of protection. My noble friend Lord Davies imagines, I think, that they are divorced from the protection of Clause 5(1)(c). In point of fact this clause is difficult, but it genuinely gives protection under subsection (1)(c), and if the man has led a strike and he is within the union there may be other dangers. That is the main danger from which you have to protect people.
LORD DAVIES OF LEEK: It would be irritating to noble Lords to follow this up at this time of the night—or morning—so I will leave it.
LORD DELACOURT-SMITH: I a bound to say that the discussion which we have had on this Amendment has served to underline the great complexity of this clause, and I must put it to the noble and learned Lord that whatever happens this clause ought not to remain in this state in which there is so much obscurity. We have had the opportunity of studying it for some time; we are quite divided on what its effect is aon what degree of protection the various parts give. What will the position be when this becomes operative, as people have to make their own assessment and seek guidance as to what it means? I do not know whether the noble and learned Lord would care to take this matter back or whether it would be better for me to withdraw the Amendment and then proceed to a discussion at a later stage on the clause as a whole.
THE LORD CHANCELLOR: I do not think I can undertake to take this back on this Amendment. What I have undertaken to do is to reflect on what the noble Lord, Lord Davies, said. I do not know that there is anything different in the construction of the clause between what the noble Lord, Lord Davies, said, what the noble Lord, Lord Brown, said and what I said. It may be that if the Amendment were passed the effect would be marginally to remove more protections than it would save, and in that respect I tend to the view of the noble Lord, Lord Brown. But that is not a question of construction; that is a question of what its results would be when you have construed it right. I think all three of us have come to the same conclusion about its construction, and I am not sure that I could agree to take that back, if I am right about that construction. This clause is not, and is not intended to be, a clause to supersede the necessity or otherwise of a non-victimisation agreement between union and employers at the resumption of work after a strike. It is a clause about unfair dismissals—unfair dismissals, that is, where the non-victimisation agreement does not touch the case. That is all it is about.
LORD DELACOURT-SMITH: In a sense, the trouble is that this clause is dealing with a situation which some of us on this side of the Committee think should never be allowed to arise, and because it recognises the existence of such a situation we naturally start with a strong animus against it. But it would probably make for better discussion if I withdrew the Amendment and then proceeded to raise some points on the Question, That the clause stand part.
Amendment, by leave, withdrawn.
On Question, Whether Clause 24 shall stand part of the Bill?
LORD DELACOURT-SMITH: Here again we have a clause, as we have already indicated, which causes us considerable concern on this side of the Committee. On first examination the clause appears to provide some safeguards for people who go on strike and find their employers dismissing them for that reason. But our basic approach is that such a situation ought not to exist, and there ought to be "no victimisation" clauses
1488
effective after a strike had come to an end. If a group of workers withdraw their labour and the employer dismisses them all and then takes back only those whom he regards as acceptable—or as not responsible for the trouble, as he will no doubt phrase it—some protection is afforded to the people who are regarded by the employer in this way. But there can be the case of the employer who is so determined to rid himself of those people whom he regards as having led to the industrial dispute that he is prepared to sack everybody, just to ensure that he sacks the people that he wants to get rid of. It is only when he re-engages some of them that any case arises for an appeal under this subsection, as I understand it. By dismissing all the workers, he leaves all of them without a case.
This is not a hypothetical argument; there are cases of this sort which do arise. One which has been brought to my attention concerned a factory of about 40 people: there was an unofficial strike; the employer sacked all the workers, and he said that they could re-apply for their jobs, but he was not guaranteeing in any way to re-engage any of them. They would be considered if they applied for employment, along with anybody else not previously employed who applied for employment in the factory. I should be glad if the noble and learned Lord would comment on such a handling of the situation, and the extent to which it would be argued that subsection (2)(b), and the mention of the words "offered re-engagement", would enable the workers in the example I have given to claim that there had been unfair dismissal.
In the Bill it is clear that it is the employer who must offer re-engagement, and in the example that I have given the employer was making it clear that he had sacked everybody and he was not offering re-engagement to anybody; he was demanding a fresh application from his workeople and underlining, as I have already said, that such an application would carry with it no guarantee of a job. It is a point on which some clarification is needed because, faced with the threat of sacking, and then a fairly lengthy argument in law about whether they were fairly or unfairly dismissed, many workers are going to regard this as a clause which tilts the scales against them.

1489
Could I also make a reference to subsection (3). By saying that it will be an unfair dismissal to sack a man for exercising his rights under Clause 5(1), the Government are seeking to imply that a man seeking to be a member of a trade union is protected from dismissal for that reason alone. The use of the term "trade union" in the Bill is, in a sense, and to a degree, a misleading one, because it will be read by some people in the sense of the normal common use of the words "trade union", whereas subsection (3) will render protection to the man who seeks to be a member of a registered union, which is the only type of trade union which gets that definition under the Bill, but of course no protection will be afforded to a man who is a member of a trade union which in the event, does not seek: registration under the Bill.
This is a clause which is so complex, and appears in some respects so unsatisfactory, that we must press the Government to take it back and look at it again. It is one which gives so little guidance on a very sensitive subject that, even taking into account the fact that it is, as the noble and learned Lord rightly pointed out, in a particular context in the Bill and dealing with a particular situation—that in which the "no victimisation" arrangements have in fact broken down—I hope the Government will look at it in a radical way again.
6.43 a.m.
LORD DAVIES OF LEEK: I think that what I have to say will again be cogent. First of all, the connotation of the word "re-engagement" is not exactly the same as "reinstatement". "Re-engagement" is completely different from "reinstatement". One has only to think about it. I might re-engage a gardener, but I will not reinstate him to prune the roses and look after the fruit trees because I no longer think I can afford that scale of pay. I am not in the lucrative position of some noble Lords opposite who keep all these gardeners, but it illustrates my point. I had better stop soon because I am beginning to wake up again.
THE LORD CHANCELLOR: The one episode in my career related to many years ago. So far as I remember, it was in about 1946.
LORD DAVIES OF LEEK: Would not the noble and learned Lord agree with
1490
me that re-engagement and reinstatement are two different things? A worker who thinks he has been unfairly dismissed has the right to go before an industrial tribunal. This is the terrible thing about this "mish-mash"; we have to jump to Clause 94(4), because that tells a tribunal what it can do. But it is not fair to attack the noble and learned Lord at this time of the day. It is stated in the Bill:
"If the tribunal considers that it would be practicable and in accordance with equity for the complainant to be re-engaged by the emloyer, or to be engaged by a successor of the employer or by an associate employer…"
So there are all kinds of "get-outs" for the employer who wants to get rid of an awkward individual. I shall leave it there, but there will come a day when we shall reach Clause 94 and this point will have to be tackled again.
THE LORD CHANCELLOR: The first thing we shall notice when we come to Clause 94 is that it does not have a subsection (4).
LORD DAVIES OF LEEK: Perhaps there will be one by then.
THE LORD CHANCELLOR: We cannot win. There is also nothing about associate companies in Clause 24 which we are now discussing. We have got over that hurdle. But if I may come to the points which the noble Lord, Lord Delacourt-Smith, raised, this clause as drafted does not of course preclude an employer from dismissing selectively a person who has taken part in a strike in all circumstances that can possibly be conceived. It is generally recognised that some industrial actions are so irresponsible and so wrong that even a trade union does not always succeed in making a non-victimisation agreement about it. Therefore, I cannot offer an assurance that there are no sets of circumstances at all in which a man can be protected against selective dismissal as a result of a strike situation. This would be to mislead the Committee, and I hope that I have not done so. I tried to explain in detail what was meant, and it certainly does not mean that.
Secondly, I could not avoid the impression, when I heard the noble Lord, Lord Delacourt-Smith, criticising this clause, that the things which he was basically criticising were not things that

1491
were obscure about it, but might include things that were fairly plain about it. I think I can deal with one of his points, which might reflect the inelegancy of drafting, but where the answer is tolerably plain. He cited a case—he did not give me any means of identifying it and I am grateful to him for not doing so, because I could not discuss an individual case—of a factory with some 40 employees where the whole of the employees who went on strike had received notice of dismissal. In other words, subsection (2)(a) did not apply and subsection (2)(b) was the only one upon which you could rely. The noble Lord then said that the employer indicated that applications for re-engagement would be considered without commitment that any particular person would be re-engaged. You might criticise his conduct, or you might support it, according to the circumstances of the case but in fact he had not yet reached the Rubicon. The Rubicon would be reached when he did in fact re-engage or offered to re-engage. These people would come in and ask for jobs. Some of them might be offered them and some might not. The Rubicon is reached at that point and not before. Nobody is dismissed at the point which the noble Lord put to me—
LORD DELACOURT-SMITH: I am sorry to interrupt the noble and learned Lord, but is he stating the position under the current law or is he applying the clause we are considering to the case I quoted?
THE LORD CHANCELLOR: I am applying the clause. I was trying to answer the question, and I was applying the clause. Quite clearly, the mere fact that he says some may be employed but nobody will be guaranteed a job does not reach the Rubicon. He crosses the Rubicon, for good or ill, at the moment at which he offers re-employment to some but declines to offer re-employment to others. That is the moment at which the Rubicon is crossed. No general notice of this kind creates a situation which attracts Clause 24 at all. Clause 24 is attracted when a selective offer is made to people who have been on strike, and then Clause 24 applies to those who do
1492
not get the offer of a job. At that stage the person who is refused an offer of a job has to look at the clause, or his trade union or his adviser would look at the clause, and say that the reason was something that was contained in subsection (3).
The noble Lord, Lord Delacourt-Smith, is undoubtedly right in saying that the reference in subsection (3) to "section 5(1) of this Act" excludes from protection unregistered bodies. That is quite clear, and if the noble Lord wants to divide, obviously this is something about which we differ and about which we have argued considerably during the last ten days, and I do not propose to add or detract a word from what has been said on this side of the Committee about that. This is what I had in mind when I said that some of the things the noble Lord was complaining about were not obscurities in the clause but what was plain in the clause, because there is nothing obscure about that, not if you take the trouble to look up the reference, which of course the noble Lord did. The more complicated provision is the trade union activities which are protected by Clause 5(1)(c), and there the protection ceases at the moment when the strike begins, and that is what the noble Lord, Lord Davies of Leek, pointed out to me some time ago. At that stage the man is either protected by a non-victimisation agreement between the union and the employer at the resumption of work, or he is not. But he is not per se, not in himself, protected by the clause. I have tried to explain this, but it is not an error on our part; it is deliberate policy. I have tried not to mislead the Committee in any way; I have put it absolutely plainly. It is not an inadvertence on our part that that is so. This is what the clause is intended to mean, and this, I think, is what it does mean.
LORD DELACOURT-SMITH: I indicated the anxieties we feel. I think the noble and learned Lord has clarified the situation a great deal by what he has said, but this is still a clause which does not commend itself to my noble friends. We think it certainly should be reconsidered with a view to some greater clarity, and I think we must divide the Committee upon it.
6.54 a.m.
On Question, Whether Clause 24 shall stand part of the Bill?
Resolved in the affirmative, and Clause 24 agreed to accordingly.
Clause 25 [Excluded Classes of Employment]:
7.1 a.m.
LORD BESWICK LORD BESWICK moved Amendment No. 222:
Page 20, line 14, leave out paragraph (a).
The noble Lord said: The purpose of this Amendment is fairly obvious. If paragraph (a) is left in, it would follow that there could be an instance where two employees were under penalty of dismissal and one would have protection, because he worked in a larger group, and the other would have no protection because he happened to he in a work group of four or less. In a small group of workers the relations might be fine, but it could not be said that in all cases there would not be a necessity to extend some protection. I understand that this exclusion was also in the Bill put forward by the previous Administration. In
Their Lordships divided: Contents, 70; Not-Contents, 20.

CONTENTS

Aberdare, L.

Ebbisham, L.

Lyell, L.

Amherst of Hackney, L.

Eccles, V.

Mowbray and Stourton, L

Balfour, E.

Effingham, E.

Moyne, L.

Barrington, V.

Elliot of Harwood, Bs.

Nugent of Guildford, L.

Bathurst, E.

Ferrers, E.

Pender, L.

Beaumont of Whitley, L.

Fisher, L.

Penrhyn, L.

Belstead, L.

Gisborough, L.

Rankeillour, L.

Brabazon of Tara, L.

Glendevon, L.

Redesdale, L.

Brecon, L.

Goschen, V. [Teller.]

St. Aldwyn, E.

Caldecote, V.

Gowrie, E. [Teller.]

St. Just, L.

Carrington, L.

Gray, L.

St. Oswald, L.

Chelmer, L.

Hailes, L.

Sandford, L.

Clinton, L.

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

Sandys, L.

Cork and Orrery, E.

Sempill, Ly.

Cottesloe, L.

Halsbury, E.

Strange, L.

Craigavon, V.

Harvey of Tasburgh, L.

Sudeley, L.

Cranbrook, E.

Henley, L.

Suffield, L.

Croft, L.

Hives, I

Swansea, L.

Cullen of Ashbourne, L.

Hood, V.

Teviot, L.

Daventry, V.

Ilford, L.

Thorneycroft, L.

De Clifford, L.

Jellicoe E. (L. Privy Seal.)

Tweedsmuir, L.

Denham, L.

Kemsley, V.

Vivian, L.

Drumalbyn, L.

Lansdowne, M.

Windlesham, L.

Dudley, E.

Lothian, M.

NOT-CONTENTS

Bernstein, L.

Garnsworthy, L. [Teller.]

Shackleton, L.

Beswick, L.

Greenwood of Rossendale, L.

Shepherd, L.

Blyton, L.

Hoy, L.

Stow Hill, L.

Champion, L.

Kennet, L.

Taylor of Mansfield, L.

Davies of Leek, L.

Llewelyn-Davies of Hastoe, Bs.

Wells-Pestell, L.

Delacourt-Smith, L.

Milner of Leeds L. [Teller.]

White, Bs.

Diamond, L.

Ritchie-Calder, L.

that case there was a reason; it was thought unwise to overload the Tribunal and it was necessary to ensure that the case load was kept low in the initial stage.
If it is the intention of the Government to review the situation after we have had some experience of the working of the Act, I could understand. But if it is intended to maintain this exclusion as a matter of principle, that would be something we should find very difficult to accept. It would mean, for example, that in the farming industry almost all the workers would not be protected. In certain cases where there was a productivity drive, and the number of employees was reduced, at one point there would be protection and then, because the number of employees was reduced, the protection would be withdrawn. I am quite sure that the noble Earl can see there is a potential injustice here and I hope that he may give us some assurance.
EARL JELLICOE: The noble Lord put his point very fairly. We are, as he said,

1495
doing precisely what the previous Government were proposing to do in their Bill, and I think for precisely the same reasons. The first is the reason that the noble Lord gave. We feel that the workload, the case-load, which is going to fall on the industrial tribunals as a result of the unfair dismissals procedure is going to be great and we must go carefully. Secondly, we feel that there is a doubtful area of the small farm or shop where there is a close and intimate relationship among a few people. Here the tribunals are likely to have a difficult task in trying to disentangle the sort of cases that arise and to determine appropriate remedies. We feel—and I think that this was also the belief of the previous Government—that in this area re-engagement would seldom work on account of the poor prospect in that sort of concern of getting the right sort of relationship going again. I have been unhappy to find how backward we are nationally in this field, but having carefully examined the practice in other countries—in Italy, for example, where there are exclusions in concerns employing under 35 people—I discover that other countries have found it necessary to make exclusions for the small concern.
The noble Lord, Lord Beswick, said that he would find this easier to understand and accept if it were my right honourable friend's intention to widen the scope of the unfair dismissals procedure as and when he felt able to do so. The noble Lord will have noted that in the next subsection but one, Clause 27(2), the Secretary of State will have power to enable him to reduce the qualifying period. I should like to make it very clear here and now that it is my right honourable friend's firm intention to institute a review of the operation of the unfair dismissals machinery at an early date. He wishes to do so as soon as it has developed far enough in order for us all to form a judgment on its ability to cope with a bigger through-put, and as soon as there is a possibility of invoking Clause 27, I can give your Lordships a very firm assurance indeed that my right honourable friend will not hesitate to do so, thus moving in the direction which the noble Lord indicated, and to which succeeding Amendments point.
1496
In view of the explanation I have given and the categorical assurance from my right honourable friend which I have been empowered—nay, asked to convey to your Lordships, because he did not have a chance of conveying this assurance to another place—I hope that the noble Lord will not wish to press this Amendment at this stage. I should like to reaffirm the firmness of my right honourable friend's intention here. He had wished to publicise it in another place and particularly asked me to convey this assurance in the strongest possible terms to your Lordships.
LORD BESWICK: I am grateful for what the noble Earl has said and the way he has said it. I readily accept the assurance. However, I should like to make one other point. The noble Earl spoke about the difficulty of reinstating someone in a small concern, and I take his point. But here we are concerned not simply with redressing an injustice, but with creating a better atmosphere in an industrial community. I think there could be a sense of grievance in a very small community if it was thought that they did not have the protection which extended to a slightly larger community. That is something which ought to be borne in mind, the positive good which could come from this protection. But in view of the firm assurances which the noble Earl has given, I beg leave to withdraw the Amendment.
Amendment, by leave, withdrawn.
7.10 a.m.
EARL JELLICOE EARL JELLICOE: moved Amendment No. 222A
Page 20, line 17, leave out from ("employees") to second ("at") and insert ("who had been continuously employed for a period of not less than thirteen weeks, whether they are or had been all employed at the same place or are or had been employed").
The noble Earl said: The subsection that we have just been discussing excludes from the right of appeal for unfair dismissal employment in undertakings where there were fewer than four employees at the time of dismissal. I should like to make it clear that representations have been made that under the provisions as at present drafted regular full-time employees in certain sectors which employ a large number of casual or seasonal labour would be excluded for

1497
the greater part of the year, but would acquire, surprisingly and rather quixotically, a right of appeal during a comparatively short season when casual workers were employed. This could apply in the horticultural industry—cherry pickers, hop pickers—the tourist industry, the catering industry and in certain areas the construction industry. I think we should have an odd sort of situation where protection against unfair dismissal could depend in some industries on such matters as the vagaries of the weather. If it was good, for example, and casuals were able to be employed, there would be protection for the regular three or four employees; and if it was bad, they would not qualify for protection.
In the view of the Government, it would be most unsatisfactory that an employee's right of appeal against unfair dismissal should depend on purely fortuitous circumstances. That is why the Government feel that only regular employees should be taken into account for the purposes of the exclusion which we have just been discussing. That is why the Amendment seeks to exclude from the calculation employees who have not been employed continuously for 13 weeks or more at the time of dismissal. The 13 weeks figure is not just drawn out of the hat; it is the period which corresponds with the new qualifying period under Clause 17 for an employee's entitlement to a week's notice. If one accepts the principle of exclusion, maybe we can extend that and lift the exclusion when we have gone further down this road and gathered more experience and the Secretary of State has used his powers under the next clause but two. But if for the time being, at any rate, we accept the principle of that exclusion, then it seems to me that the Amendment I am moving would follow logically. I beg to move.
LORD SHACKLETON: Though this seems a simple Amendment, it is in fact quite complicated. The noble Earl explained it very clearly, but unfortunately, owing to a small interruption, I did not hear exactly what he said. But I may say that the interruption was to inform me that the Labour Party has now won 2,000 council seats, and this was a slight distraction. I am sure this does not discourage the noble Earl from the good work that he is doing. What he has said seems to hold together with the other
1498
aspects of the argument. I do not think it would be right to take time trying to analyse this further. I think we had better have a look at what the noble Earl has said, and if we are unhappy about it we can return to it. He will find that the figure of 13 weeks, for which the noble Earl argued so eloquently, may have a relevance to some of the later Amendments.
On Question, Amendment agreed to.
Clause 25, as amended, agreed to.
Clause 26 [Qualifying period and upper age limit]:
7.15 a.m.
LORD HOY LORD HOY moved Amendment No. 223
Page 21, line 13, leave out paragraph (a).
The noble Lord said: Paragraph (a) of Clause 26 lays down that among the classes of people who will not get dismissal protection will be those who have not been employed for a period of not less than 104 weeks. They have to serve two years before the benefit is conferred on them. This period is far too long. I cannot think of anywhere else where people are compelled to serve a probationary period before they get the benefit of an Act of Parliament. This is a most unfair proposal; I do not care where it came from, either from this Government or the previous one.
EARL JELLICOE: This Amendment, and the next two Amendments, are closely linked. I am grateful to the noble Lord, Lord Hoy, for his clear explanation. Clause 26 is not one of my favourite clauses in the Bill. The Government would like to move to a position as soon as possible in which we have a reasonably short qualifying period. The qualifying period in Clause 26 has been embodied for one, simple, practical reason: it has become clear to us from the independent research commissioned by and carried out on behalf of the Government that the initial case load for the tribunals arising from unfair dismissals is likely to be extremely heavy. There could be anything up to a quarter of a million dismissals a year in this country—a rather frightening figure—which could fall within the new unfair dismissals procedure. Numbers of this sort

1499
would swamp the existing industrial tribunals. Although it is our hope to extend the number of tribunals quickly, any lower amount of qualifying service would at this stage produce a bigger case load than even an expanded system could possibly cope with. That is the only reason why it seemed necessary—initially at least—to restrict applications to those cases which could well be regarded as the most deserving; that is, longer service employees who have served in their employment for a continuous period of not less than two years.
I claim no greater merit for the clause as it stands than this simple, practical, straightforward justification. It leaves a lot of people who might need to have recourse to dismissals procedure outside its net at the present time. There was not the chance of making clear in the other place that my right honourable friend is very conscious of this problem. It may be that we have miscalculated its extent; one just cannot tell. I have given the figures derived from independent research.
It is certainly our hope, in any event, that the number of potential applicants will reduce. It is our hope that the legislation, as it bites, will have a significant effect on employers' attitudes towards dismissals. It may be that as employees get used to the procedure, those who have had a long shot at it will be discouraged and the case-load will be thereby reduced. But, in any event, the legislation has been framed to encourage the development of voluntary procedures, as is evident from a succeeding clause, which can be exempted from the statutory machinery; and this too, if our hopes are justified, will reduce the burden of the case-load. As I have said, it is our hope to increase the geographical coverage and the number of the industrial tribunals.
I trust that I have said enough, coupled with the assurance I gave on the last Amendment that it is my right honourable friend's intention as soon as may be to lower the ceiling of this exclusion clause, to make it clear that in principle there is absolutely nothing between noble Lords opposite and myself on this issue; indeed, it would be rather surprising if there were anything between
1500
noble Lords immediately opposite myself and me on this issue, since Clause 26 is identical to the equivalent clause in the last Government's Bill. They, too, had two years' exclusion; they too would presumably have much preferred not to have had it, and they too presumably would have had the firm intention of reducing it as soon as the practicalities made this possible. I apologise at this rather early hour for having taken up so much of your Lordships' time on this particular point, but it is not an unimportant one; it was not one which was properly discussed in another place, and I hope that I have said enough to persuade noble Lords opposite that I have very considerable sympathy with the principles of their Amendment, but for the simple practical reason which commended itself to their Administration I cannot myself go along with it.
7.22 a.m.
LORD BROWN: I do not propose to move Amendment No. 225, in my name, when we come to it but I would say just a word on this Amendment. I have noted what the noble Earl has said. He has expressed the situation clearly. There is, however, just one point, and I hope the Government may take note of this. If they do it would seem to me to be much better. If this clause, while possibly stating the figure of 104 weeks, also included powers for the Secretary of State for Employment to reduce it—
LORD SHACKLETON: It is in the next clause.
LORD BROWN: I am sorry. Having blundered at this rather lazy hour, I will sit down.
LORD STOW HILL: Before the Committee comes to a conclusion on Amendment No. 223 which is before it, I wonder whether it would be for the convenience of the Committee, in view of what the noble Earl said so very clearly to us, to consider the case for Amendment No. 225A which stands in the name of my noble friend Lord Delacourt-Smith and my own. If it would be for the convenience of the Committee, I should like to say a few words in support of that Amendment. I do not know whether I may take it that the Committee agrees to my so doing. On that assumption, and in view of what the noble Earl has said,

1501
I would respectfully submit to the Committee that there is a case for embodying a proviso in the terms set out in Amendment No. 225A. The noble Earl made it quite clear why it would be impracticable, in view of the rather frightening figure he mentioned of 450,000—
EARL JELLICOE: Two hundred and fifty thousand—a quarter of a million. It is frightening enough without being 450,000.
LORD STOW HILL: I am sorry; a quarter of a million. But he made it quite clear that it would be quite impracticable, for the time being at any rate, much as the Government would desire to do so, to reduce the period of 104 days. That being so, at any rate while there is a substantial number of weeks which have to be worked continuously in order to preserve the right under Cause 20, would it not be desirable to provide, as the proviso which I suggest does provide, that the industrial tribunals in the event of a claim being made before them in respect of an alleged unfair dismissal should be given some discretion? The discretion then suggested is this. If a case comes before the tribunal in which the worker cannot demonstrate that he has worked continuously for 104 weeks, the tribunal, if it finds that during the two years ending with termination the employee has worked not less than 90 weeks—that is a purely arbitrary figure which can be moved up or down—can treat him for the purpose of the claim as if he did satisfy the requirement of employment for 104 weeks, provided that the tribunal considers it would be just and equitable so to do. It may often be the case that the employee cannot satisfy the test he will have to meet if the 104 weeks stands; there may be a number of reasons why he cannot measure up to this test. That being so, I put forward the proposal in No. 225A and suggest it as a useful adjunct to the clause.
LORD HOY: I am grateful to the noble Earl for what he said in reply, although I am very disappointed. I thought of raising that subsection in Clause 27 myself to avoid him giving it in reply; I thought the reply would be that. I am bound to say the picture the noble Earl presented to us is very frightening. He said the Government anticipate that there will be a quarter of a million cases in the first year.
EARL JELLICOE: I should be clear about this. I said that independent research indicated that there may be in a year anything up to 250,000, but independent research has also shown that something like 80 per cent. of those cases might fall within the first two years. I am giving the noble Lord an argument there, but I wish the facts to be known.
LORD HOY: I am not placing any responsibility or blame on anyone. We are grateful for the figures. Whether the research has been done by the Government or by an agency for them, we are faced with a figure of 250,000. This is why they have laid down a reservation in the clause; the argument is that because so many people are going to be involved, considerable numbers are not going to have justice; they must wait, and perhaps they will be penalised. The longer it goes on the worse it becomes. I know it was in a previous Bill, hut as I said at the beginning, when Bills and papers are prepared they are for discussion and it is for the Members of another place and your Lordships to make up their minds. While I should have liked to accept what the noble Earl says. I think I should be doing less than justice if I did not ask my noble friends to record dissent to this particular proposal.
7.29 a.m.
On Question, whether Amendment No. 223 shall be agreed to?
Their Lordships divided: Contents, 21; Not-Contents, 63.

CONTENTS

Barrington, V.

Delacourt-Smith, L.

Milner of Leeds, L.

Beaumont of Whitley, L.

Diamond, L.

Ritchie-Calder, L.

Bernstein, L.

Garnsworthy, L. [Teller.]

Shackleton, L.

Beswick, L.

Hoy, L.

Shepherd, L.

Blyton, L.

Kennet, L.

Stow Hill, L,.

Brown, L.

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

Taylor of Mansfield, L.

Champion, L.

Wells-Pestell, L.

Davies of Leek, L.

NOT-CONTENTS

Aberdare, L.

Elliot of Harwood, Bs.

Moyne, L.

Amherst of Hackney, L.

Ferrers, E.

Nugent of Guildford, L.

Balfour, E.

Fisher, L.

Pender, L.

Bathurst, E.

Gisborough, L.

Penrhyn, L.

Belstead, L.

Glendevon, L.

Rankeillour, L.

Brabazon of Tara, L.

Goschen, V. [Teller.]

Reading, M.

Brecon, L.

Gowrie, E.

Redesdale, L.

Carrington, L.

Gray, L.

St. Aldwyn, E.

Chelmer, L.

Hailes, L.

St. Just, L.

Clinton, L.

Halsbury, E.

Sandys, L.

Cork and Orrery, E.

Hanworth, V.

Sempill, Ly.

Craigavon, V.

Harvey of Tasburgh, L.

Strange, L.

Cranbrook, E.

Hives, L.

Sudeley, L.

Croft, L.

Hood, V.

Suffield, L.

Cullen of Ashbourne, L.

Ilford, L.

Swansea, L.

Daventry, V.

Jellicoe, E. (L. Privy Seal.)

Teviot, L.

Denham, L.

Kemsley, V.

Thorneycroft, L.

Drumalbyn, L.

Lansdowne, M.

Tweedsmuir, L.

Dudley, E.

Lothian, M.

Vivian, L.

Ebbisham, L.

Lyell, L.

Windlesham, L.

Eccles, V.

Mowbray and Stourton, L. [Teller.]

Effingham, E.

On Question, Amendment agreed to.

7.37 a.m.
LORD SHACKLETON: May I ask the noble Lord, the Leader of the House, what his intentions are? It is now fourteen hours since I commented on the undesirability of overworking your Lordships' House; and I must say that the remarks I made at the beginning of yesterday afternoon about the standards we maintain have been fully justified. Although there have been moments when things have gone a little more slowly than at other times, we have watched an interesting variety of moods, particularly with the Lord Chancellor, who in the final stages struck me as being in immensely good form. He is now preparing to start another day in about three hours' time.
I wonder whether it would not be wise if we were to stop pretty soon. It may be that the noble Earl would like to get a little further. It may tail off a bit. There are some quite important matters to discuss, and I would stress that we have not been raising this question right through the night. It is an old gambit to seek to adjourn, but I have not yet moved an Adjournment Motion during the debate on this Bill, except when there was an unfortunate muddle during a Division. Perhaps the noble Earl the Leader of the House would care to comment, and he might note that our numbers on this side are increasing
LORD CHAMPION: The day shift is coming on.
EARL JELLICOE: The noble Lord, the Leader of the Opposition, has asked me what my intentions are, and in general I should just like to say that they are entirely benevolent. In particular, I would echo what the noble Lord has said. I think we have had a good debate. We have covered quite a bit of ground, and ground which has not been properly covered in another place. Therefore, although we have been going for 14 hours, I think we can say, without patting ourselves on the backs too much, that we have been doing our job. I should also like to say, quite apart from anything else, that I am conscious that we have been placing quite a strain upon the administrative services of the House, and I think I shall carry all noble Lords with me when I voice my gratitude to the staff. All that being said, I should have thought that the reasonable thing would be to go for the natural break. The natural break I think falls at the end of Part II. I do not think that we have many Amendments ahead of us. I have looked at them fairly carefully and I do not consider that they should cause us any great difficulty.
LORD SHACKLETON: The noble Lord wishes to be benevolent, but of course what he is saying is a fairly hard thing, because Clause 31 is a controversial part of the Bill, there is quite a lot to be said. We may wish to return to this. We are willing to go on for a bit longer, and we will do what we can to get on, but I am not at all happy as to whether the noble Lord's benevolence goes far

1505
enough, and it may be that I shall have to speak more sternly to him later.
7.40 a.m.
On Question, Whether Clause 26 shall stand part of the Bill?
LORD HOY: I wish to ask one further question about Clause 26, and I hope the noble Lord's benevolence will extend to this clause too, because in Clause 26(b) the Government are taking power to withdraw the benefits for every man who reaches the age of 65 and every woman who reaches the age of 60. It seems to me to be a little hard, in that people might have given very loyal service to a firm, and, simply because they have reached the age of 65 and 60 respectively, the Government says: "You have now forfeited your right to protection". Your Lordships can imagine that for most of us in this place these ages would rule us out. But I want to say quite seriously to the noble Earl that I think the Government really ought to look carefully at this before imposing this penalty on the older section of the community.
EARL JELLICOE: I should just like to explain that employees who have reached the age of 65, if they are male, and 60 if they are female, are excluded from the legislation since this pension age is generally regarded as normal retirement, after which age a man or woman no longer has an expectation to work, although some of us perhaps do have. In some occupations, of course, the normal retiring age is reached earlier: there are many in the public sector which are familiar to us. The legislation makes special provision for this different expectation of retirement age.
I should be perfectly happy to look again at this, but I cannot hold out any promise here. Again we are repeating—and I do not like resting on this ground—a provision in the previous Government's Bill. I would not wish to deceive noble Lords that I am going to produce anything here, but this is something at which I will certainly look in the light of the noble Lord's remarks.
LORD HOY: We would not expect the noble Earl to go any further than that. We expressed our feelings on the first part. Certainly we express our gratitude that he is prepared to look at the second
1506
part, and I will not take the matter any further
Clause 26 agreed to.
Clause 27 agreed to.
Clause 28 [Exclusion of certain contracts for a fixed term]:
7.45 a.m.
On Question, Whether Clause 28 shall stand pant of the Bill?
LORD HOY: May I ask a question on Clause 28(b)? Perhaps the noble Earl can explain what is meant by the concluding lines? It seems to me that these lines are asking the employee to contract out. I do not know whether I am reading this correctly or not. We have always been told that we ought to be careful of the small print on anything we might care to sign. The clause says:
"if before the term so expires the employee has agreed in writing to exclude any claim in respect of rights under that section in relation to that contract."
It seems to be a curious thing to have in a Bill that, where people have entered into these contracts and employment has taken place, there should be a proviso that, where the worker or employee signs an undertaking of this kind, he forfeits any claim against the employer. That seems to be a most extraordinary proposal. I have never seen it before. There may be some precedent for it, and I am certain your Lordships would be grateful to hear of it from the noble Earl.
LORD BERNSTEIN: Is it not the fact that the Donovan Commission recommended that this should be done rather differently? They suggest that the Secretary of State should have the jurisdiction, and not the Industrial Court. If so, why the change from the Donovan recommendations?
EARL JELLICOE: I am terribly sorry, I did not quite catch which subsection or section the noble Lord was referring to.
LORD BERNSTEIN: I think it was in the Donovan Commission Report, paragraph 559 or 562: they recommended that the Secretary of State should have the jurisdiction which is now given to the Industrial Court, and I wondered why.
7.47 a.m.
EARL JELLICOE: I am a little puzzled by the noble Lord. All I do recall is that Donovan recommended very clearly that the Industrial Tribunals should be the tribunals to which unfair dismissal cases should be referred. In fact, there was a specific recommendation in Donovan, and a large part of a chapter was devoted to that particular point. Unfortunately, I do not carry every paragraph in my head, and I am not absolutely certain of the one to which the noble Lord is referring, and how it is associated with Clause 28, which I am on at the present time.
May I explain the purpose of Clause 28? What I should like to make clear is that the provision of safeguards for employees against unfair dismissal is not intended to affect genuine fixed term contracts, where both parties recognise there is no understanding that the contract will necessarily be renewed on its expiry. This clause excludes fixed term contracts, subject to certain conditions. Under paragraph (a) the contract must be for two years or more, since an employee referring a claim under these provisions would, in most cases, have to have served that long with his employer. The dismissal must consist only of the expiry of the term of the contract without its being renewed. If an employee is dismissed during the term of his contract, he will be able to appeal if he considers his dismissal unfair, provided he satisfies the other conditions for appeal.
In the case of a fixed term contract arranged after the coming into effect of these provisions, there must also be an agreement in writing between the employer and the employee, made before the expiry of the contract, to exclude any claim the employee might otherwise have under these provisions. That is the purport of the two subsections of the clause taken together. I do not know whether that answers the point which the noble Lord, Lord Hoy, has put to me. I must confess I was taken a little off course into the outer frontiers of Donovan by the noble Lord, Lord Bernstein.
LORD HOY: I am grateful to the noble Earl for his reply, but I am bound to say it is not very satisfactory. Perhaps we ought to put down an Amendment and draw the matter to the attention of the House.
LORD DRUMALBYN: The point here is that, from the time when the Bill comes into operation, it will then be the case that an agreement in writing between the employer and the employee should be made before the expiry of the contract to exclude any claim the employee might otherwise have made under these provisions. The point about "before expiry" is that a great many of these fixed-term contracts, from the very date when the contract is entered into, provide that the contract is for a fixed term and is terminable at the end of that period. That is almost invariably with the consent of the employee, because these are the terms on which he is engaged, and he consents to them. It could happen that in the course of the contract the parties agreed that the contract would automatically be terminable at the end of the fixed term. In any case, the term must be for more than two years. I think that this is both normal and reasonable.
LORD HOY: It may be normal, but I do not think it is reasonable. What the noble Lord has said has confirmed my worst fears, that any employer might say to an employee, "You will sign this contract", and perhaps, as a consequence of not signing, he will not become an employee. So while I am grateful for that explanation, I must reserve the right to raise the matter again at a later stage.
EARL JELLICOE: May I say that I am grateful to my noble friend for his explanation?
LORD SHACKLETON: May I remind the noble Earl that we are getting towards the end of our time? He did very well in answering my noble friend, who was in fact raising a very important point on the next Amendment, and that begins to bear out the fact that we ought not to go on much longer.
Clause 28 agreed to.
Clause 29 [Exclusion in respect of procedure agreement]:
7.52 a.m.
EARL JELLICOE EARL JELLICOE moved Amendment No. 229A
Page 22, line 12, at end insert
("( ) that every organisation of workers which is a party to the procedure agreement is an independent organisation.")
The noble Earl said: The Government's primary objective in providing for the exemption of voluntary dismissal procedure is to encourage the development of responsible self-government by trade unions and employers in this important field of industrial relations. We have a related and subsidiary incentive here, in that this will help to reduce the case load of work placed on the industrial tribunals. As the Committee will realise, such exemptions will mean that employees' rights of appeal against unfair dismissal through the statutory machinery will be withdrawn in favour of the exempted voluntary procedure. It is most important that the exempted agreement should provide the employees which it covers with no less favourable safeguards than the statutory scheme. Clause 29 therefore sets out certain conditions which the Industrial Court will need to be satisfied about before an agreement can be exempted.
The first condition, the purpose of which is to establish that the agreement is a bona fide one and to provide some safeguard as to its continuing viability, requires a joint application for exemption to be made by all the parties to the procedure agreement. The procedure agreement is defined in Clause 158 and that definition is dependent on there being a collective agreement. The collective agreement is in turn defined in Clause 32(3) as being an agreement
"made by or on behalf of one or more trade unions or other organisations of workers and one or more employers or organisations of employers."
An organisation of workers under that definition does not have to be an independent one in the sense that "independent" is defined in Clause 158. It is our feeling that Clause 29(1) might therefore permit the exemption of a management-dominated dimissal procedure, in the kind of situation where an employer was joined in an application by his house union, possibly to the exclusion of a recognised trade union. This is not the Government's intention and we are concerned that the provision may not in these circumstances provide adequate safeguards for employees. By providing that only a trade union or an independent organisation of workers may be a party to the joint application for exemption, the Amendment will ensure that the interests
1510
of the employees concerned are properly safeguarded. I hope that this Amendment, which reflects our natural benevolence, will commend itself to your Lordships. I think there was a loophole I here, possibly a potentially quite serious one, but so far as I can see this Amendment will close it. I beg to move
LORD DELACOURT-SMITH: We welcome this Amendment. We recognise the danger against which it is intended to guard, and we welcome the initiative of the Government in putting this Amendment down. I did not quite catch one phrase of the noble Earl. I am not sure whether he said it was due to natural benevolence or natural love of independence. Both of them, of course, would be completely acceptable phrases.
7.56 a.m.
LORD BROWN LORD BROWN moved Amendment No. 230A
Page 22, line 27, leave out ("appropriate cases") and insert ("cases where (by reason of an equality of votes or for any other reason) a decision cannot otherwise be reached.")
The noble Lord said: I hope that at this hour I can do justice to this splendid Amendment. I am afraid I shall take a certain amount of your Lordships' time over this, because the matter is fairly complex. I will explain the purpose of this Amendment and then attempt to justify it. First, the purpose. Under Clause 29 procedure agreements may be arrived at as between the employer and the organisations of employees if approved by the Industrial Court. It is a splendid thing that these procedure agreements should be able to be introduced in this way, because I believe that, once employers have bent their hand to a procedure agreement that is concerned with rights of appeal for unfair dismissal, it should be a natural thing for them to face the fact that there should also be rights of appeal for many other things. Unfortunately, Clause 29(2)(d) lays down that these procedure agreements must include a right of arbitration to an independent referee or tribunal. It may seem extraordinary to your Lordships that I should use the word "unfortunately" with reference to that provision. Indeed, the Industrial Court may not accept a procedure agreement unless that right of an individual to appeal to an independent

1511
tribunal exists. My Amendment seeks to modify that right. Why do I say that? This is where the matter begins to get complex.
I have experience of operating appeal mechanisms in the company I used to manage over a period of 25 years. I refer to them as "appeal mechanisms", though I notice that many people are referring to them as "grievance procedures". I just note, in passing, that in my opinion, this is a very bad term indeed. They are quasi legislative and they are appeals, but they are not always grievances. However, that is in passing. If, indeed, this provision of Clause 29(2)(d) remains, then I think a prudent employer would realise that to extend his procedure agreement in the name of the trade union to all forms of appeal, while at the same time giving those appeals the right of immediate access to an independent tribunal, would involve him without doubt in a very large number of appeals to this external tribunal. He would have to face the fact—and I know this from my own experience—that a substantial percentage of those appeals would be trivial by nature, and would not warrant the onerous task of arranging that they be heard by an external tribunal, for any form of hearing by such a tribunal will inevitably involve the commitment of the evidence to writing in some form and the briefing of the tribunal so that they know the circumstances surrounding the appeal. So I am suggesting in this Amendment that there should be a hurdle placed in the way of those who seek to use the services of this external tribunal; and the wording of the Amendment, though complex, has the effect that the Industrial Court need not include in the procedure agreement this untramelled right of appeal to an external tribunal except in certain circumstances when a decision cannot otherwise be reached. This small hurdle in the way of an appeal may enable many employers and trade unions who otherwise would not be able to extend an appeal system to all forms of appeal to do so without all the qualms that Clause 29(2d) in its present form would raise in their minds.
It may seem rather a trivial issue but I have been a student of the possible effect of appeals systems for many years. I have read the accounts of some hundreds
1512
of strikes, and it is my view that in many of them the existence of an appeal mechanism would have inhibited the strike. For what happens is that in the absence of an appeal mechanism imposed in a general procedure agreement, the person who feels that a decision has been made which is unfair takes it to his shop steward. His shop steward may turn it down if it is very trivial, but if he does not, and in the absence of a procedure agreement, he will raise it with the committee of shop stewards. In order to take the appeal forward the substance of the appeal has to be generalised into a more serious matter than it probably is. There is then a confrontation between the shop stewards and the management; it has now become an enlarged issue, and management may not be able to accept the greater claims that arise out of this enlargement with the result that a strike takes place. The point of dispute, in origin, was an entirely personal matter, and experience has shown that if the person who had felt that an injustice had been done had had the right, supported by his shop steward as a sort of Q.C., to take it up to the next level of management, and from there up to the chief executive, the dispute would have been solved, in the vast majority of cases, before it got to the chief executive.
So the case for stimulating these procedure agreements is an extremely strong one. The case for removing any bar that might hinder procedure agreements extending to appeals systems which cover all forms of felt injustice is equally strong. It is far this reason that I move this Amendment. May I add that if appeal mechanisms through these procedure agreements come into general use another thing will follow from them. The company concerned will find it necessary, possibly for the first time, to begin writing their policies. If they try to operate appeal mechanism without written policies it means they will find themselves in serious trouble. If they begin writing up policies with regard to overtime, wages, night shifts, holidays and all the rest of it, they will find it necessary to come to an agreement about these policies with representatives of their employees. If they do that, these policies become the bounds within which managers exercise their authority. If

1513
managers are in the position to exercise authority, albeit authority limited by these agreed procedures and contained by the appeal mechanism, they will, in my experience, have a very much higher degree of real authority inside the establishment. At the same time, there will be a greater degree of participation on the part of employees. The institution of the appeal system could start the whole process of thinking which could lead to a greater feeling of justice on the part of employees and a greater sense of participation. I can think of nothing more likely to stimulate industrial peace; and this might all start from procedural agreements in a quasi-legal appeal system in industry. That is the background to this rather complicated looking Amendment, which I beg to move
8.6 a.m.
LORD DRUMALBYN: I congratulate the noble Lord, Lord Brown, on his oratory at this time in the morning. It is obvious that he has warmed to his subject, and we all know that it is one in which he is very expert. We are very glad to have the noble Lord breathing fresh life into the proceedings at this time. The noble Lord's suggestion is that the words "appropriate cases" should be defined by:
"cases where (by reason of an equality of votes or for any other reason) a decision cannot otherwise be reached."
This is one of the conditions about which the Industrial Court has to be satisfied regarding procedure agreements in general before an agreement can be designated in relation to dismissal procedures. I think the noble Lord has done a great service to the Committee by introducing this Amendment which we are happy to accept. We think it will give greater clarity. While the immediate purpose is dismissal only, the procedure agreement as a whole must contain this provision; it is a minimum provision and we think it an excellent thing.
8.8 a.m.
On Question Whether Clause 29, as amended, shall stand part of the Bill?
LORD DELACOURT-SMITH: The Committee will observe that we did not move the two linking Amendments in the names of my noble friends. This was because we felt it more appropriate to
1514
make the general observation, on the Question, Whether the clause shall stand part of the Bill—which we have made in connection with other provisions in the Bill—that we deprecate the supervision of these arrangements envisaged in the clause by the Industrial Court. We sympathise with the general intention of the clause, providing the arrangements are satisfactory, and that the requirements are applied strictly. For this purpose we welcome the Amendment moved earlier on the question of the independence of organisations of workers. We believe that it should be the Commission on Industrial Relations rather than the Industrial Court which should be concerned with examining these proposed procedures to confer exemption. This is an aspect to which we may wish to return at a later stage.
Clause 29, as amended, agreed to.
LORD SHACKLETON: At this point may I again make an appeal to the noble Earl the Leader of the House. I think that we have come nearly to the end of our tether. We have sat for 17 hours. I know that the noble Earl wanted to go a little farther. Certainly we are happy to deal with Clause 30. I do not think that there is much arising on it, but I believe that Clause 31 will take anything up to an hour or an hour and a half, and I do not think it is fitting to the dignity or effectiveness of our discussion to go on. It may be that while we are dealing with Clause 30 the noble Earl may like to be considering this, but I am giving him advance notice. I cannot make any promise on progress but we have moved along. I really think that we have all had enough.
Clause 30 [Revocation of exclusion of under section 29]:
8.10 a.m.
On Question, Whether Clause 30 stand part of the Bill?
LORD DELACOURT-SMITH: Again we regard it as appropriate to make our observations on the Question, Whether the clause stand part, rather than upon the Amendments on the Marshalled List. The positions raised on the earlier clause is a view we hold strongly. It is consistent with the view we have taken on other parts of the Bill, that it is appropriate that the supervision of arrangements

1515
of this sort should be undertaken by the Commission on Industrial Relations. I think in some ways it is even more appropriate within the ambit of the matters dealt with in Clause 30 than in the case of those which fall within Clause 29.
We hope that it will be possible at a later stage for us to come hack to this matter and possibly have a more extensive debate. There well may be a case for our views on this section of the Bill receiving specially sympathetic consideration from the Government. There were provisions of this kind in the Bill which was produced by the last Administration and although the words "registration or approval by the Secretary of State" come into this, the Commission was to play the crucial part in advising the Secretary of State on the use which should be made of his powers. With these observations, I would be disposed to leave the clause to the Committee.
LORD DRUMALBYN: I fully understand the noble Lord's views on this, but I noted that he said that under the provisions of the Bill the C.I.R. was going to advise the Secretary of State. It is this advisory role that we have in mind also for the C.I.R. I should have thought that this particular procedure, envisaged in this clause, and in the previous clause, is one that is peculiarly suitable to the Industrial Court—and perhaps the noble Lord will consider this point also before the next stage—because what the Court is really doing is giving an exemption from the law. The Secretary of State might do this by licence. But does the noble Lord really think that a primarily advisory body like the C.I.R. should be put in that position? We do not think so, and that is why we have the Bill as it is. I hope to be able to persuade the noble Lord to our point of view.
LORD DELACOURT-SMITH: I must make the point that unless there is some general provision in the Bill which has escaped my attention, Clause 30, which we are considering at the moment, assigns no role to the Commission on Industrial Relations but places the matter entirely in the hands of the Industrial Court. I take note of the point the noble Lord has made, but perhaps we can return to this issue on another stage of the Bill.
LORD DRUMALBYN: Perhaps I may point out that, unlike most of the other issues, there is no particular matter for the C.I.R. to investigate. This is purely a question of fact as to whether a certain decision can be taken.
Clause 30 agreed to.
8.17 a.m.
LORD SHACKLETON: I rise to move that the House do now resume, but before I press this Motion to a decision I want to say this. I know that the noble Earl was beginning to see that we have a strong case. This is my third appeal. I know that the noble Earl firmly wants to go to the end of Clause 31. But I, and I think many other noble Lords, equally firmly think that this is as far as we ought to go. Amendment No. 238 and the debate on the Question, That the clause stand part, may well take an hour or something of that order. Although it is unsatisfactory to stop in the middle of a clause, we have done it before now. I do not know how difficult Lord Drumalbyn's Amendment is. If the noble Earl feels that if he gets into Clause 31 he would be happier, I will not press this Motion, but we really are not prepared to go on beyond that point. I must take a firm stand on this. I again stress that, to put it mildly, we have all been very good indeed, and we shall not be very good for much longer if we go on. I beg to move that the House do now resume.
Moved, That the House do now resume.—(Lord Shackleton)
EARL JELLICOE: The noble Lord has quite rightly surmised that it is my firm desire that we should go to the natural break, which is the end of Clause 31, and therefore the end of an important Part of the Bill. The noble Lord has also remarked that that clause contains contentious material; and I recognise that. I also recognise that some of us may be getting a little weary, and perhaps not quite at the peak of our form. I should like to be as reasonable as possible, combined with a very firm desire that we should achieve our target. I should therefore like to respond to the noble Lord's suggestion, and propose that we take the two Amendments. We might then consider adjourning, and leave the debate on the Question, That Clause 31 stand part until a later date.
LORD SHACKLETON: I must say, with the greatest respect, that the noble Earl is slowing up and so am I; our speech is getting slurred, we really ought not to go on. The compromise is that we deal with the first three Amendments, Nos. 235, 236 and 237, and then stop. This would leave the contentious Amendment, No. 238, and the Question, That the Clause stand part. We can deal with the first three Amendments very quickly indeed.
EARL JELLICOE: Since I noticed that Amendment No. 238 is written in red in my noble friend's copy of the Bill, which may be some form of slight warning, I am prepared, with very considerable reluctance, and stressing that it is my equally firm desire that we should make substantial progress on Monday, to say that I should not wish to see us divide on this issue, if we can avoid it. I hope that if I agree to fall in with the suggestion that we should stop before the Amendment in red that we shall be able to resume on Monday with reasonable expedition with both the Motion, That the Clause stand part and Amendment 238. I know that I cannot ask for any cast-iron guarantees on this matter; but against that background I should be prepared to fall in with the noble Lord's suggestion.
LORD SHACKLETON: The noble Earl is still manfully standing up and is striving to get what he can from the situation. We have noted what he said. He recognised that we can make no promise. We have moved with reasonable expedition and considerable effectiveness. I am prepared, with the leave of the House, to withdraw my Motion, on the understanding that either the noble Earl or I will move it after we have disposed of Amendment 237. I therefore ask leave to withdraw my Motion.
Motion, by leave, withdrawn.
Clause 31 [Pressure on employer to infringe rights of workers]:
8.22 a.m.
LORD DRUMALBYN LORD DRUMALBYN moved Amendment No. 237:
Page 24, line 26, at end insert—
("( ) to induce an employer to comply with a provision declared to be void by an order of the industrial Court under section 6(1B) of this Act, or").
The noble Lord said: As has been pointed out earlier, the present drafting of Clause 6 does not make void the agreements which have the effect of operating the pre-entry closed shop if the agreement does not, in its terms, purport to be effective in that way. The Amendments introduced enable the Industrial Court to make an order declaring such agreements void if, on application by a worker, the court finds that the agreement has the effect of maintaining a pre-entry closed shop.
The purpose of this Amendment is to make it an unfair industrial practice to organise industrial action with the object of inducing an employer to maintain and comply with a pre-entry closed shop agreement which has been made void by an order of the Industrial Court. If the employer were to do so he would be in contempt of the Court. It is reasonable therefore 'to protect him from industrial action which is intended to place him in such a position. I beg to move.
LORD DELACOURT-SMITH: It is of course clear from the introduction to this Amendment which the noble Lord has given that we are getting now into very deep waters on the Bill because, as has been clear from our discussions on Clause 6, this is a matter on which we know strong views are held on both sides in industry. On an earlier occasion (I think on Clause 16) I made a reference to the issues which were now arising in connection with the definition of "unfair industrial practices" and the extent to which it was an unfair industrial practice to seek to induce employers to do certain things. We have a very good example in the Amendment which is before us. The noble Lord is of course quite right in saying that if action is taken contrary to the provision that he is seeking to introduce into the Bill, this could raise the question of the employer concerned being in danger of being in contempt of court. This brings us to the heart of the difficulties which this Bill will raise for the normal conduct of industrial relations.
We have so frequently emphasised that the provisions which Clause 6 seeks to void are provisions which have been entered into fairly widely in industry with the consent of both sides for the promotion of good industrial relations; for the promotion of all those purposes which

1519
the Government themselves have set out in the gateways they have embodied in Schedule 1 to the Bill. In our view, there will understandably be pressure within industry for the maintenance of these arrangements, and in many cases it will be pressure with which the employer will have a good deal of sympathy. He will therefore find himself in the difficulty that, if he responds to pressures from trade unions—and of course there is nothing wrong with trade unions putting pressures on; one of the things trade unions exist for is to put pressure on em-
Resolved in the affirmative, Amendment agreed to accordingly.
House resumed.

INDUSTRIAL RELATIONS BILL: CLOSURE MOTION
8.36 a.m.
VISCOUNT GOSCHEN: My Lords, I think there was some confusion over the Closure Motion moved yesterday evening by the noble Earl, Lord Halsbury, during the Committee stage of the Industrial Relations Bill (col, 1305 of the OFFICIAL REPORT). This was due to the fact that I did not make it clear to the Clerks that I and my noble friend Lord Denham had been appointed Tellers for the Not
ployers—he is likely to find himself, as the noble Lord said, in risk of being in contempt of the Industrial Court. To unravel this will take many steps, but I am bound to say that I do not think that my noble friends and I can accept this Amendment without dividing the Committee.
8.29 a.m.
On Question, Whether the said Amendment (No. 237) shall be agreed to?
Their Lordships divided: Contents, 54; Not-Contents, 19.

CONTENTS

Aberdare, L.

Goschen, V.

Nugent of Guildford, L.

Amherst of Hackney, L.

Gowrie, E.

Pender, L.

Balfour, E.

Gray, L.

Penrhyn, L.

Bathurst, E.

Hailes, L.

Rankeillour, L.

Belstead, L.

Hailsham of Saint Marylebone, L. [L. Chancellor]

Reading, M.

Brabazon of Tara, L.

St. Aldwyn, E. [Teller.]

Carrington, L.

Hanworth, V.

St. Oswald, L.

Clinton, L.

Harvey of Tasburgh, L.

Sandford, L.

Cork and Orrery, E.

Hives, L.

Sandys, L.

Cranbrook, E.

Hood, V.

Sempill, Ly.

Croft, L.

Ilford, L.

Strange, L.

Denham, L. [Teller.]

Jellicoe, E. [L. Privy Seal.]

Suffield, L.

Drumalbyn, L.

Kemsley, V.

Swansea, L.

Dudley, E.

Lansdowne, M.

Teviot, L.

Effingham, E.

Lothian, M.

Thorneycroft, L.

Elliot of Harwood, Bs.

Lyell, L.

Tweedsmuir, L.

Ferrers, E.

Mowbray and Stourton, L.

Vivian, L.

Fisher, L.

Moyne, L.

Windlesham, L.

Glendevon, L.

NOT-CONTENTS

Bacon, Bs.

Greenwood of Rossendale, L.

Popplewell, L.

Beswick, L.

Hoy, L.

Shackleton, L.

Blyton, L.

Kennet, L.

Slater, L.

Davies of Leek, L.

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

Stow Hill, L.

Delacourt-Smith, L.

Taylor of Mansfield, L.

Diamond, L.

Milner of Leeds, L.

Wells-Pestell, L.

Garnsworthy, L.

Phillips, B. [Teller.]

Contents. Owing to this error on my part, the noble Lord in the Chair was informed that no Tellers had been appointed for the Not-Contents. He reported the fact to the Committee and declared that the Contents had it. This was contrary to what was intended by Her Majesty's Government and also, I think, contrary to what was understood by the Committee as a whole. My Lords, I much regret my mistake.*
LORD SHACKLETON: My Lords, I take it that that is not by way of being a personal statement, but a statement explaining Business, and I can therefore comment. I am quite certain that the noble Viscount, Lord Goschen, is taking

1521
far too much blame on himself. No blame really attaches to anyone. One of the consequences of having a sensible and liberal form of procedure is that occasionally, because it depends on discretion, it may slip in unusual circumstances—and I would rather have the occasional slip. We on this side of the House were under the impression—and certainly my noble friend Lord Hoy was—that the Closure Motion had been lost, whereas, in a way, it had been carried; and he went on and gracefully withdrew an Amendment which had already been "closured".
It reminds me of the time when I found my noble friend Lord Longford carrying on a debate which had already been passed. So there is a precedent for this. I am quite sure that no blame attaches either to the Clerks or to the Chairman, or indeed to the noble Viscount, Lord Goschen, himself. But it is important that this should go on the Record, especially since the closure was carried improperly—perhaps one could describe it as a "mis-closure". I think the Procedure Committee ought to take note of this, so that it is recorded that this was not intended to be a Closure Motion. I think also that the noble Earl, Lord Halsbury, who has been sitting here all night as a penance for his action, would, given a little more time, probably not have wished to proceed with it, since my noble friend gave way to him on withdrawing the Amendment only under the impression that he wanted to make a contribution. However, we are grateful to the noble Viscount for setting the Record straight.
EARL JELLICOE: My Lords, I think it would be a good thing if we did ask the Procedure Committee to take note of this, and I should like to thank the noble Lord the Leader of the Opposition for his graceful words.
SEVERAL NOBLE LORDS: Hear. Hear!
LORD SHACKLETON: My Lords, the noble Earl has twice managed to remember to thank the staff for their work during this long night, and I echo his remarks. That is another reason why I think it is a good thing that we are now going home.

FLINTSHIRE COUNTY COUNCIL BILL [H.L.]
The CHAIRMAN OF COMMITTEES informed the House that the opposition to the Bill was withdrawn: the Order made on February 23 last discharged, and Bill committed to the Committee on Unopposed Bills.
MERSEY DOCKS AND HARBOUR (ORE BERTH) BILL [H.L.]
The Queen's consent signified and Bill reported with Amendments.
ARMED FORCES BILL
Returned from the Commons agreed to, with Amendments; the said Amendments to be printed.
  LONDON BOROUGHS AND LAND DEVELOPMENT
  LONDON BOROUGHS AND LAND DEVELOPMENT