I beg to move, in page 4, line 27, to leave out "on summary conviction thereof."
This Amendment deals with summary convictions and I am wandering into the realms of law. Anyone who has studied the Bill will see that a lot of precautions are taken to put the matter in order. First there is the Confederation of Employers and the T.U.C. General Council, who can deal with all these matters before they go any further. If a dispute arises they will examine it and try to come to some agreement. If they fail in that we have a court of arbitration which is, I think, as strong a court of arbitration as anyone could wish to have. I wish to quote the Minister of Labour who was asked a question on that on 3rd February. He said that the court of arbitration:
will be constituted exactly as arbitration courts established under my Ministry are constituted now. Generally, we have a legal gentleman in the chair—and we always proceed on the assumption that legal gentlemen are quite impartial"—
I doubt that
The chairman will be assisted by panels of assessors, in addition to technical experts. That allows for flexibility in regard to advice, in accordance with the particular trade that is being dealt with. We follow the practice of having the assistance of three persons, including one from each side, with a knowledge of industry. In that way, we hope to get a proper decisions based on knowledge as well as impartiality.
One would expect that this court of arbitration would be quite decisive in making its decision and that its decision should be one which would be followed. The question was put to the Minister of Labour by the hon. Member for Consett (Mr. David Adams) about the question of appeal from the decision of the arbitration court. The Minister of Labour replied:
The arbitration court, like all arbitration courts in industrial practice, will give a decision which will be final an1 binding on all parties; and if anyone does not act in conformity with the award, he will be liable to be taken before a court of summary jurisdiction."—[OFFICIAL REPORT, 3rd February, 1942; col. 1083, Vol. 377.]
I do not think there is any need to bring in a court of summary jurisdiction when we have had to go through all the processes I have mentioned. A court of summary jurisdiction cannot alter the award. It is bound to enforce an Order. It is not a question of putting a plea before such a court that the award should be set on one side. All they are asked to do is to see it is carried out. I cannot understand why a court of arbitration should not have that authority. If an employer refuses to carry out an award he will be called upon to pay certain penalties for not having done so. If a court of arbitration, after thorough investigation, and being impartial, reaches a decision, why should it have to go any further? I wish power to be given to the court of arbitration. I believe that in the last war it was given to a special court set up like this.
I am taking as my evidence the statement made by the hon. Member for Mossley (Mr. Hopkinson) who said he was taken before that court and smartly fined for not having carried out an award. If that was in operation then why not now? Why should there be all this waste of time if an employer will not conform to something which has been thoroughly examined before an award has been made against him? Why not give the court of arbitration power to say, "This is our decision. Unless you carry it out we shall put our ruling into action just as if it was a court of law"? I think it could be put into the Bill that the arbitration findings shall have the power of law behind them, to be carried out like the decision of a court of summary jurisdiction. Behind this matter lies a lot of old tradition. They were afraid to shake off the idea that everything must go to the court of law whether that is necessary or not. There are a lot of lawyers and they must have jobs, and well-paid jobs. By the procedure as it stands they finally come in for something. I do not think we should lightly let this matter go at a time like this. This Bill is for the purpose of bringing back the recognised practices which trades had before the war began. Why must all this time be wasted because a few employers refuse to carry out awards of the arbitration board?
I am a barrister, and I am acting in a most disinterested way in resisting this Amendment. I need not even resist it; I only wish to point out how mistaken the hon. Member is in thinking that if it were carried he would be diminishing the work of the legal profession. On the contrary, he would be greatly augmenting it. If people do not pay their debts or comply with an award you must bring the matter before some court. The only question is, what is the most effective court? The hon. Member for Leigh (Mr. Tinker) suggests that the persons concerned might be brought back to the Arbitration Court which, incidentally, has not yet been given any criminal jurisdiction. But it would be a most inconvenient court to which a man who wished to recover a small sum of money from his employers or to punish them should have to go. The hon. Member will notice that the Arbitration Court having decided about a trade practice, and what sums are due to the employee, there are two remedies. Under Section 4, Sub-section (4):
Any sum due by virtue of any such award to any person employed in an undertaking may be recovered by him summarily as a civil debt from the employer.
Of course, the employer normally will pay without being brought to any court, because if he had to be brought to any court he would be mulcted in costs as well as having to pay the sum due under the award. The court before which he would be brought would be one of the ordinary courts of the country, and not the arbitration tribunal. Clause 5 makes it a criminal offence for the employer to fail to comply with the award. Surely, a court of summary jurisdiction is by far the most convenient court before which to bring the employer. I have no reason to think that an employer would be likely to engage a barrister in a court of summary jurisdiction and not to engage a barrister in a case before the arbitration tribunal. I am sure that the hon. Member is mistaken in thinking that his Amendment is practicable, and in thinking that if his
intentions were carried out it would decrease, instead of increasing, the work of the profession to which I belong.
I oppose this Amendment as strongly as I can, and I would carry the argument against it a little further than was done by my hon. Friend the Member for Norwich (Mr. H. Strauss). Perhaps the greatest safeguard of our liberties is the fact that we have courts of law and judiciaries entirely independent of the Executive. I could not regard an arbitration court set up by some Ministry as qualifying for such a description. It would be almost unthinkable that such a court should be allowed to impose penalties for a criminal offence in failing to carry out Orders that have been made.
I am sure that my hon. Friend has not quite appreciated the Amendment he has moved. I can assure him that there are not many barristers who would seek to obtain a livelihood in a court of summary jurisdiction. My hon. Friend the Member for Norwich (Mr. H. Strauss) rightly pointed out that if my hon. Friend's Amendment were carried it would create a perfect El Dorado for the lawyer, because it would be right and proper—unless my hon. Friend's new tribunal excluded all legal representation, which, of course, it has not done so far as the Bill is concerned—for counsel to be heard on both sides, and for them to argue the merits of the award or its application to given circumstances. The fatal defect in the Amendment is that my hon. Friend wants to make the court which makes the award the judge in its own cause—an unusual procedure. The circumstances in which action would be taken would be circumstances in which the employer would argue that the award did not apply. What more appropriate body could be found than a court of summary jurisdiction to consider the merits and demerits of that issue, to see whether the award did apply to the circumstances of the employer who argued that the award did not apply to a certain section of his workpeople? A court of summary jurisdiction must be held to be constituted of people far removed from the issue which the court would have to decide. For that reason, I think my hon. Friend's Amendment ought not to be accepted; and I have no doubt that it will not be accepted.
I do not think we can allow these legal arguments to pass without saying a few words about the desire that is expressed to ensure the immunity of the employer. Workmen are never immune. It is very strange that we should get such arguments when the employers are affected. The tribunal can decide that the workers are guilty. I have a definite case of a sheriff being told that he had no jurisdiction but to carry out the award of the tribunal. The tribunal had decided that the worker was guilty, and all that the sheriff could do was to act on that decision. But when an employer is affected, the greatest care must be taken that nothing shall be done which will affect his interests. I suggest that the regulations which are to be presented to the tribunal shall be applied in the most rigid manner to the employers. What sort of situation will be created, when employers are playing ducks and drakes with the regulations, if, in the case of every man affected, proceedings are to be instituted, and counsel are to be engaged to argue for and against each case. The cases are not to be taken in bulk, but for every man affected there will be counsel on both sides; so that we may get 200 or 300 counsel arguing on each side, and a battle raging more devastating than that which is going on in Libya. An agreement may be broken with a trade union or with a whole series of individual workers. To say that the worker or the trade union should be responsible for taking these matters into court and for engaging counsel, and that the employer shall 'engage counsel, means that you will have a whole series of legal battles. This applies only when the employers' interests are affected.
The conditions governing whatever restoration there is should be so clear and explicit that when the employer refuses to implement any agreement he will be immediately subject to the penalties which are laid down, without any question of taking him into court to argue whether he has committed a breach or not. There are hundreds of cases that may be mentioned of workers who, immediately they have refused to comply with an order, have been subject to penalties. [Interruption.] A lot of the employers could do with shooting. It would be a good thing if those who are responsible for the incompetence that we see, were shot. It would save us thousands of lives. One knows of workers who, when they have refused to go into jobs, have not been given the right to engage counsel and go to court. As soon as they refused, they were held to have committed an offence, and were immediately subject to penalties. The employers should be subject to penalties in the same way. I cannot discuss the cases that I have in mind at the moment, but when I next get the Adjournment I shall be able to show that when the interests of the workers are affected there is no concern shown by the legal gentlemen. The terms laid down should be so clear, so definite, so categorical, that there can be no hesitation whatever in deciding when an employer breaks the conditions in any way, and he should be immediately subject to heavy penalties for such a breach.
The hon. Member who moved the Amendment was anxious to prevent the legal fraternity from enjoying themselves as the result of disputes which might take place and which would be affected by this Bill. He knows me sufficiently well to realise that I am not on the side of the legal luminaries from choice but, in this instance, from necessity. He quoted the experience of the last war when the munitions tribunals had the power to inflict penalties or fines. The hon. Member for Mossley (Mr. Hopkinson) for once comes in useful, to me at any rate, because I believe he informed the House that he was the only individual who ever paid the fine. The difficulty of collecting fines is one of the reasons why some other machinery is to be employed, and the effect of the Amendment would be that offenders against this Order would be tried upon indictment which means that they could not be taken before courts of summary jurisdiction. I do not know a lot about the law but I do know that when legal luminaries appear at assizes, the costs are a great deal more than when a case comes before the magistrates.
He would probably go before both. That would be the effect of the acceptance of the Amendment. To me a much stronger reason for resisting the Amendment is that the procedure provided under the Bin has been agreed upon by both parties in industry. Hon. Members will have seen that the Minister himself has put down an Amendment under which he can take proceedings, if the need arises, and that, I think, answers what was in the mind of most hon. Members when they suggested that court proceedings ought to be possible.
I wanted to speak before the Parliamentary Secretary because I was rather astonished at the attitude which was adopted by one or two of my colleagues on this side of the Committee, and, in particular, at the attitude of my hon. Friend the Member for West Fife (Mr. Gallacher). He seemed to have forgotten that one of the worst things that happened in the opinion of the working classes all over the country, and particularly of what we call the fighting Left of the working classes of this country, was the inclusion of legal advisers in the tribunals affecting working class conditions in every phase of their life. We have constantly had protests during all our fights in the trade union and working class movements from working class organisations with regard, to the establishment of the legal mind over what were termed human factors in coming to decisions before tribunals. The result of the Amendment, as was pointed out by my hon. Friend the Joint Parliamentary Secretary, would be that this would not be a fight between an individual worker and an employer.
I recall that only in recent weeks my hon. Friend the Member for West Fife was one of the first to enter the Lobby to vote for the Vote of Confidence which many of us did not do, because of the feelings that had been expressed by working class people all over the country. To raise this question so soon after casting such a vote seems to me to be bad parliamentary tactics. But I would stress the important point that this would not be a fight between a poor working man and a very rich employer, but between a trade union organisation and an employers' organisation. It would involve probably prolonged legal arguments and decisions in connection with the arbitration board and consequently heavy expense to the trade union movement itself. That is something we have always tried to avoid in the arbitration courts. I believe that the Minister is protecting the organisation and all sections of industry in this matter from interference by the law, and we ought to welcome this Clause as it stands and not support the well-intentioned but misguided Amendment of my hon. Friend the Member for Leigh (Mr. Tinker).
I will not pay any attention to the childish babblings of the hon. Member for Maryhill (Mr. Davidson) but I would point out to the Joint Parliamentary Secretary that as far as the Regulation concerning workers is concerned, it is made clear that they can be given certain instructions to go here or go there. If they refuse they will be liable to penalties, and as a consequence, when the case of a worker comes before an appeal tribunal and the decision goes against him, all that is left to be done is to impose the penalty. Such cases do not go before the court in the ordinary way. The appeal court decides, and there is no case on record where it has been a question of whether or not sentence was to be imposed upon a particular worker. The only thing that is ever done is to try and show not that there should not be a sentence but that it should be of a mild character. The fact remains that the conditions applying to the workers differ entirely from the conditions laid down in this Bill with regard to the employers.
I hope that the Amendment will be withdrawn. I am certain that on consideration the workers themselves would realise that, were penalties to be imposed otherwise than by a court of law, it would be a very serious thing for this country. When anybody refuses the direction of the Minister of Labour with regard to work they go to the appeal tribunal and nothing can be done with them until the court has decided. The court has to decide their guilt before any penalty can be imposed and the court has also the right to say, that, while the tribunal were correct, yet there were such circumstances in the case that they would not apply a penalty. The court have that right. If you should take the right of imposing a penalty out of the hands of, the court and put it into the hands of any other tribunal, it would be striking a blow at the foundations of what some of us believe to be the only real protection that the workers possess. We know there are benches which are occupied by prejudiced people and that human weaknesses express themselves in decisions in the courts but that does not alter the fact that if you were to set up any irresponsible tribunal you would have the same weaknesses. Take the case of a man who goes to court and has an opportunity of going before a jury when the chairman says "Will you have the case tried summarily or will you go to the sessions?" He can decide to be tried by his own people, who have no interest in his case whatsoever, and by people who, so far as they can be obtained, are impartial. It would be a bad thing for the workers of this country if they were to place into the hands of an irresponsible body a duty which is now the duty of a court of justice.
I hesitate to intervene after so many Members have tried to make this matter clear but there is a point which ought to be made. An arbitration tribunal is frequently composed of equal numbers from each side and a so-called impartial chairman. If a dispute is submitted to them and is so controversial that they cannot give a decision the so-called impartial chairman has to decide. He may or may not be a person who is dealing with the matter from a legal point of view. In a court there is an obligation upon a judge to protect the citizen and, in spite of what the hon. Member for West Fife (Mr. Gallacher) has said, a man before a court is innocent until he is proved guilty—
Perhaps the hon. Member will recall instances where people, obviously guilty in the eyes of the general public, were found not guilty in court because there was no evidence upon which they could be convicted. I hesitate to discuss what happens in English courts but, unless I am mistaken, by the deletion of the words "on summary conviction thereof" you would automatically instigate a charge on indictment which would give rise to a jury trial which might last for several days. I have taken part in jury trials where the judge has had to censure the parties concerned for involving the litigants in high legal expenses because of the charge on indictment instead of having the matter dealt with in some other fashion. I suggest that summary conviction is the quickest, cheapest and fairest way of disposing of a matter of this kind.
I beg to move, in page 4, line 36, to leave out "association of trade unions" and to insert,
by or on behalf of the Minister.
The words "association of trade unions" are rendered unnecessary by an Amendment which the Minister has put down to Clause 11, which will include associations of trade unions in the definition of trade unions. The insertion of the words "by or on behalf of the Minister" will enable legal proceedings to be taken against an employer by or on behalf of the Minister for non-compliance with an award of an arbitration tribunal. This carries out the intention of the Amendment which has been put down to this Clause by the hon. Member for Greenock (Mr. McNeil) and the reasons for it have been stated on many occasions. It is in order to enable either an association or an individual who are aggrieved, and who are not able to take proceedings, to obtain justice through the intervention of the Minister.
This Amendment meets a situation which provides, plainly, no solution for the good citizen who loses his job, and for the small trade union or workman who dare not exact his legal privileges for fear of victimisation. I was anxious that power should be given to the Minister so that the weaker unions or individuals might be protected.
Before we part with this Clause I would like to draw the Committee's attention to one or two matters in Sub-section 1 to which, I hope, between now and the Report stage attention will be given by the Minister. This Sub-section states:
and shall be liable on summary conviction thereof to a fine not exceeding £25.
Later it states:
and shall be liable on summary conviction thereof to a fine not exceeding £25 for each day on which the default continues.
I suggest it would be quite reasonable it the amount of the fine were raised to £100 in each case. I know of several undertakings who would find it good business to pay a fine of £25 per day for not carrying out a decision. There are thousands of operations in modern industry, particularly in instrument making and the manufacturing of switch-gear and power-plants, where the sub-division of labour has been carried to such an extent, through girls and women, that employers would be able to pay this £25 fine "for ever." Contrast that sort of treatment of employers with the treatment which is meted out to our working men and women who do not carry out the directions of a Government Department. A large amount of feeling is being caused in industrial circles because of the action that is being taken against miners who have been absent and against engineers who have been responsible for absenteeism. It should be remembered that many of these men have had their physique undermined as a result of their industrial experience in the 10 years before the war, and for that reason they are not able to keep pace with the present-day demands of industry. Sometimes they have to take a day or two off.
I admit that, Colonel Clifton Brown. I was simply giving a concrete example of how, on the one hand, we propose in this Bill to fine firms only the small sum of £25, and, on the other hand, how the House has been responsible for passing Defence Regulations which enable men to be fined £100 and suffer terms of imprisonment of from three months to nine months. I am contrasting the treatment of firms as proposed in this Bill with the treatment of men under the Defence Regulations. Under Defence Regulation 58 (a), action has been taken against individuals. They are liable to imprisonment and fines; some have been imprisoned for three months or more and others have been fined £100. I ask that before we part with this Clause, the Committee will consider that differentiation in treatment, and that between now and the Report stage the Minister will give consideration to our deliberations in order that we may treat firms in the same way as individuals are being treated.
I want to support what has been said by my hon. Friend the Member for Stoke (Mr. Ellis Smith). I think that the maximum penalty should be greater. Under the Bill, no matter how serious the offence, the maximum fine which the court can impose will be £25. Of course, I recognise that a firm might commit a small breach of the law, and in that case, even if there were a higher maximum, the court would not necessarily impose the maximum fine. However, if the possibility of imposing a fine of £100 existed, it would be a greater deterrent. I think that the feeling of the Committee ought to be taken on matters of this sort. It would cause an employer to be very careful if he knew that not only would a very heavy penalty be imposed if he broke the law, but that if he continued to break it, he would have to go on paying that heavy penalty. I hope the Minister will consider the appeal I have made.
That is a matter on which there would have to be a great deal, of study of precedents, values, and all sorts of circumstances and conditions. I would not be prepared to say now whether the fine should or should not be higher, although I think there is some substance in the argument that it might pay a firm to continue breaking the law and paying the fine. The hon. Member for Stoke raised another point when he compared the treatment of a worker under the Defence Regulations with the treatment of a firm, not under the Defence Regulations, but under this Bill. If he had taken the parallel of the treatment of a worker under the Defence Regulations and the treatment of a firm under the Defence Regulations, he would have found that the firm could be treated just as drastically as the worker. I think he was wrong not to compare like with like. There may be something in the argument about raising the amount of the fine, but I am sure the hon. Member prejudices any soundness there may be in that argument by quoting two entirely separate states and conditions of affairs.
I think the point made by the hon. Member for Weston-super-Mare (Mr. Orr-Ewing) is based on a misconception. Surely, it is fair to compare the position of a worker under the Defence Regulations, who is being compelled by the exigency of the national situation to give up something that is his, with the position of a firm compelled, not by the Defence Regulations but by this Bill, to give it back to him when the exigency has passed. I should have thought that my hon. Friend was making an equitable Comparison.
There is one point that I would like to make. Obviously, there are circumstances in which, if the penalty cost the employer less than compliance with the award, we should be placing a valuable premium on failure to comply with the award. I am certain the Committee would not wish to do that. If that possibility could be obviated by some Amendment on the lines suggested by my hon. Friend, I should have thought that the Minister would have been very glad to consider such an Amendment. I quite appreciate that it may be very difficult and probably impossible to carry out, but I wonder whether attention has been given to the following idea. Is there any way in which the award of the tribunal can be made operative without relying upon the action of a recalcitrant employer? There are, of course, some trade practices in connection with which that could not be done, but in others it might be possible to do it. Will the Minister consider putting into the Bill any machinery which would have this effect, that where an employer has been convicted of failure to comply with an award, it should not be left to him to incur further penalties by further failure to comply, but the State itself should operate some machine by which the award of the tribunal can be made operative? I think the point is a clear one, but whether there is any way of devising machinery to meet such a difficult and complicated position, I do not know. If not, obviously the idea would have to be abandoned, but in the case of some practices, I think machinery could be devised. If so, it would give much better protection to the workers than would the imposition of a penalty in the case of continued failure to comply.
From the point of view of the fine acting as a deterrent upon the worst type of employer, I would like the Parliamentary Secretary to give this matter his most serious consideration. It will be within the recollection of most hon. Members that we had a very striking instance of an employer who was sharply fined during the last war and who stated in this House quite recently that he had been so fined; therefore, the sting of a sharp fine must be very operative indeed, when it is remembered 25 years after the event. I ask the Parliamentary Secretary to remember that when the hon. Member for Mossley (Mr. Hopkinson) stated, as an employer, that he had been sharply fined during the last war, that was one of the strongest arguments that could be put forward now for a sharp fine being imposed on the worst type of employer.
I want the Committee to note the force of the argument I have made. I am merely pointing out the moral, which is a good moral, namely, when a particular employer is sharply fined and remembers it after 25 years have passed, it must have had a beneficial effect. We have had all kinds of impositions placed upon all types of the community, but my hon. Friend must bear in mind that a £10 fine for the average worker is much worse than a £25 fine for the average employer.
My hon. Friend must agree that there is a temptation to the mischievous employer who is prepared to throw away £25 for sheer obstinacy. I ask my hon. Friends to remember some of the prewar speeches made in this House, or speeches made in accordance with pre-war practices. Those speeches indicated that certain types would go to any length in order to cause, through their obstinacy and mischievousness, the maximum trouble in industry. We have seen it time and again. We have seen associations of employers agree on a set principle and plan, and then an employer breaking away and making trouble by cutting prices and so on. These employers can cost the nation hundreds or even thousands of pounds before a question is settled. Their action may bring about protracted negotiations, loss of time and, eventually, Questions in this House. The usual custom employed by all Departments in legislation such as this should be followed. I consider that the advice of the Law Officers should be taken, and that the usual words "a fine not exceeding £100" would act as a far greater deterrent. Such a provision would be much more suitable because the courts could be given power to decide the amount of the fine.
The hon. Member for Nelson and Come (Mr. Silverman) asked whether or not some device for putting into effect the findings of the tribunal could not be discovered so as to prevent these things taking place. It is fairly obvious, if it had been at all practicable to do so, that the necessity for this Clause would not have arisen. I am glad that the hon. Member for Maryhill (Mr. Davidson) has raised the question of a deterrent or penalty. I am inclined to think that conviction is far more important than the penalty attaching, although at the same time I recognise the strength of the argument put forward and that there may be something to be said for increasing the amount. However, I will consult the Minister and the Department about this. With regard to the hon. Member for Mossley (Mr. Hopkinson), he paid the fine of £10 and continued the offence. By increasing the amount to £25 and making it recurrent, it would probably have got over the difficulty of the hon. Member on the last occasion. As I have said, the amount of the fine is very little, even if it were extended to £100, compared with the conviction, I am prepared to look into this question again of whether it should be £25 or £100, although I must confess that some employers are just as capable of paying a £100 fine as they are a £25 fine.
Could we not include a term of imprisonment as a substitute for a fine? I have a recollection of people who recognise the law when they fear imprisonment but do not care two hoots about it when it is a case of a fine.
Imprisonment is never easy. The difficulties over imprisonment in wartime are not a very pleasant experience. I am hoping, when this war is over, and this Bill deals with after the war, that the desire to imprison people will be a good deal less than at the present time.