Application to High Court with a View to Discontinuing or Defer Ring Industrial Action Which En Dangers Lives, Imperils National Security, etc.

Orders of the Day — Trade Union and Labour Relations Bill – in the House of Commons at 12:00 am on 10th July 1974.

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'(1) Where it appears to the Secretary of State—

  1. (a) that, in contemplation or furtherance of an industrial dispute, industrial action, consisting of a strike, any irregular industrial action short of a strike, or a lock-out, has begun or is likely to begin;
  2. (b) that the condition specified in the next following subsection is fulfilled; and
  3. (c) that, having regard to all the circumstances of the industrial dispute, it would be conducive to a settlement of it by negotiation, conciliation or arbitration if the industrial action were discontinued or deferred,
the Secretary of State may apply to the High Court for an order under subsection (4) below.

(2) The condition referred to in paragraph (b) of the preceding subsection is that the industrial action in question has caused, or (as the case may be) would cause, an interruption in the supply of goods or in the provision of services of such a nature, or on such a scale, as to be likely—

  1. (a) to be gravely injurious to the national economy, to imperil national security or to create a serious risk of public disorder, or
  2. (b) to endanger the lives of a substantial number of persons, or expose a substantial number of persons to serious risk of disease or personal injury.

(3) Any application made by the Secretary of State under this section—

  1. (a) where it relates to a strike, or to irregular industrial action short of a strike, shall specify the persons (whether they are organisations of workers, officials of such organisations or other persons) appearing to the Secretary of State to be responsible for calling, organising, procuring or financing the strike or other action in question, or for a threat to do so, and
  2. (b) where it relates to a lock-out, shall specify the persons (whether they are employers, organisations of employers or other persons) appearing to the Secretary of State to be responsible for instituting, carrying on, organising, procuring or financing the lockout, or for a threat to do so;
and the persons so specified shall, together with the Secretary of State, be the parties to any proceedings on that application.

(4)—(a) Where an application is made to the High Court under subsections (1) to (3) above, the Court, subject to its being satisfied on the evidence that there are sufficient grounds for believing that the condition specified in paragraph (b) of this subsection is fulfilled, shall make an order under this subsection.

(b) Any such order shall specify—

  1. (i) the area of employment in respect of which the order is to have effect, that area being defined in the order by reference to (or to any combination of) any of the following, that is to say, one or more industries specified in the order, one or more undertakings or parts of undertakings so specified, and one or more descriptions of workers so specified;
  2. (ii) the persons are to be bound by the order, who (subject to paragraph (a) below) shall be the persons specified in the application in accordance with subsection 3 of this section.
  3. (iii) the date on which the order is to take effect and the period, not exceeding thirty days, for which the order is to remain in force.

(c) The persons specified in pursuance of subsection (4)(b)(ii) of this section in an order relating to a strike, or to any irregular industrial action short of a strike, shall not include any person who in the opinion of the High Court (nothwithstanding that he is specified in the application for the order)—

  1. (i) has, or (as the case may be) would have, no responsibility for the strike or other action in question beyond that of being included among the persons taking part in it, or
  2. (ii) has no responsibility for calling, organising, procuring or financing the strike or other action in question, or for threatening to do so, except in his capacity as an official of a trade union acting within the scope of his authority on behalf of the trade union.

(d) An order under this subsection made on an application relating to a strike, or to irregular industrial action short of a strike, shall be an order directing that, during the period for which the order remains in force, no person specified in the order in accordance with subsection (4)(b)(ii) of this section shall—

  1. (i) call, organise, procure, or finance a strike, or threaten to do so, or
  2. (ii) organise, procure or finance any irregular industrial action short of a strike, or threaten to do so,
within the area of employment specified in the order in accordance with paragraph (b)(i) of that subsection or any part of that area.

(e) An order under this subsection made on an application relating to a lock-out shall be an order directing that, during the period which the order remains in force, no person specified in the order in accordace with subsection (4)(d)(ii) of this section shall institute, carry on, authorise, organise or finance a lock-out, or threaten to do so, within the area of employment specified in the order in accordance with paragraph (b)(i) of that subsection or any part of that area.

(f) An order under this subsection may also require any one or more of the persons specified in the order, before the end of such period as may be specified in the order for the purposes of this subsection, to take such steps (whether by way of withdrawing or securing the withdrawal of any instructions issued by or on behalf of that person or those persons or otherwise) as may be so specified for the purpose of securing that the industrial action to which the application for the order related is discontinued or (as the case may be) deferred during the period for which the order remains in force.

(g) Any order under this subsection shall indicate the scope of the industrial dispute in consequence of which the order is made, in such manner as may appear to the High Court to be sufficient to indicate the area of employment affected by the dispute and the extent of the matters to which the dispute relates.

(5)—(a) The provisions of this subsection shall have effect where an order (in this subsection referred to as "the principal order") has been made under subsection (4) of this section.

(b) If the period specified in the principal order in accordance with subsection (4)(b)(iii) above (or that period as previously extended under this subsection) is less than thirty days then at any time before the end of that period the High Court, on the application of the Secretary of State, may by order extend that period, but not so as to exceed thirty days in all.

(c) Where at a time within the period for which the principal order is in force it appears to the Secretary of State, that persons other than those specified in the principal order in accordance with subsection (4)(b)(ii) of this section—

  1. (i) are at that time responsible as mentioned in paragraph (a) or paragraph (b) of subsection (3) of this section but
  2. (ii) are not then persons required to be excluded from the order in accordance with subsection (4)(c) of this section,
the Secretary of State may make an application to the High Court, specifying those persons and applying for the principal order to be extended to them; and the persons so specified shall, together with the Secretary of State, be the parties to any proceedings on that application.

(d) Subject to the next following paragraph on any application made by the Secretary of State under paragraph (c) of this subsection the High Court shall make an order specifying the persons who were specified in the application and directing that, in relation to any time after the order under this paragraph takes effect, the principal order, while it remains in force, shall have effect as if those persons had been included among the persons specified in the principal order in accordance with subsection (4)(b)(ii) of this section of this Act.

(e) The High Court shall not make an order under paragraph (d) of this subsection after the end of the period specified in the principal order, and, where it makes an order under that paragraph shall not include in it any person required to be excluded in accordance with subsection (4)(c) of this section.

(f) In relation to any person to whom the principal order applies by virtue of an order made under paragraph (d) of this section (in this paragraph referred to as "the supplementary order") the supplementary order may impose any requirement which, in pursuance of subsection (4)(f) of this section; could have been imposed on him by the principal order if—

  1. (i) the principal order had been made at the time when, and in the circumstances in which, the supplementary order is made, and
  2. (ii) he were one of the persons specified in the principal order.

(g) After the period specified in the principal order has begun, the High Court shall not, either during that period or at any time thereafter, entertain any application under subsections (1) to (3) of this section in respect of the same industrial dispute, or in respect of any other industrial dispute in so far as it appears to the Court that its scope falls within the scope (as indicated in the principal order in accordance with subsection (4)(g) of this section) of the industrial dispute in consequence of which the principal order was made '.

(6)—In the application of this section to Scotland, for references to the High Court there shall be substituted references to the Court of Session.—[Mr. David Mitchell.]

Brought up, and read the First time.

9.0 p.m.

Photo of Mr David Mitchell Mr David Mitchell , Basingstoke

I beg to move, That the Clause be read a Second time.

This is the longest new clause on the Paper, but happily I am in a position to explain its purpose and meaning in a few words. Those words are to be found in subsection (1) of the clause which states: Where it appears to the Secretary of State … that … a strike … has begun or is likely to begin … it would be conducive to a settlement of it"—

Photo of Mr Oscar Murton Mr Oscar Murton , Poole

Order. I appeal to hon. Members who do not wish to hear the hon. Gentleman speaking on the new clause to withdraw quietly.

Photo of Mr David Mitchell Mr David Mitchell , Basingstoke

The clause says that where it appears to the Secretary of State that it would be conducive to a settlement of it by negotiation, conciliation or arbitration if the industrial action were discontinued or deferred, the Secretary of State may apply to the High Court for an order for up to 30 days.

There are only certain narrowly drawn circumstances in which the Secretary of State can obtain such an order. They are that the continuance of the strike would be gravely injurious to the national economy … imperil national security"—

Photo of Mr Oscar Murton Mr Oscar Murton , Poole

Order. I am sorry to interrupt the hon. Gentleman, but I must appeal to hon. Members to listen to him in silence. I find it difficult to hear the hon. Gentleman, and I am sure that many hon. Members also find it difficult.

Photo of Mr David Mitchell Mr David Mitchell , Basingstoke

Another of the circumstances in which the Secretary of State may obtain such an order securing a 30-day deferment of the strike is that it would create a serious risk of public disorder, of(b) … endanger the lives of a substantial number of persons, or expose a substantial number of persons to serious risk of disease or personal injury. The whole House will agree that those are circumstances of the utmost seriousness to the nation and that it is right and proper that the Secretary of State should have such a power if, and only if, he believes that in going to the High Court he can help to bring about a settlement. It would be a useful addition to the Secretary of State's armoury in seeking to protect the public. With respect to hon. Members who may be strongly involved in the interests of trade unions or employers, the essence of the clause is to seek to protect the public.

We suggest only 30 days instead of the 60 days which was provided in some former legislation and which is the practice in other countries. That suggestion is made because it is felt that 30 days is long enough to enable an urgent public inquiry to be carried out, should such be the wish of the Secretary of State. That would generally be enough time to enable any substantial change in the stance of the disputants in a strike to take place, if it is going to take place, and the dispute can be settled by negotiation or public inquiry.

My hon. Friend the Member for Bridgwater (Mr. King) and I have deliberately not allied the clause to a ballot on the employer's last offer. That is because I for one have always doubted the value of such ballots. Almost invariably the members of the union will not vote on the issue but will treat it as a vote of confidence in the union leadership. Secondly, they see it as a situation in which they cannot lose, because if the ballot goes in favour of the union's rejection there is a possibility that a greater offer will come from the employer and there is no likelihood of a smaller offer.

There is useful experience in the United Kingdom as well as elsewhere of the operation of such a provision, because the 60-day cooling-off period in the 1971 Act was used on one occasion in a railway dispute, when the union and its members adhered to the order of the then Industrial Court. Some Labour Members have made it clear that they do not like the Industrial Court and that they would have much greater respect for the High Court. Therefore, we have included in the new clause the requirement of a High Court order. That is designed deliberately to meet the arguments that were advanced by some Labour Members.

It is true that when the cooling-off period was used it did not lead to an immediate settlement, but only one trial is a poor guide. The certainty is that in other countries it has been highly successful. If we look at experience in the United States, from which the Secretary of State is now borrowing ideas such as the independent arbitration and conciliation service, and if we look at the history of the cooling-off period we find that it operates successfully. The ballot may not work but the cooling-off period does work.

I remember vividly talking to the President of the longshoremen's union at the time of a strike in the United States. He was the trade union president who was involved in the dispute. He said of the use of the cooling-off period that it was a useful crutch for negotiators to have on which to fall back.

My final point in moving the new clause—if I might have the attention of the House—is that it could not be used arbitrarily at the capricious whim of the Secretary of State. I am not suggesting that the whims of the Secretary of State are frequently capricious. Nevertheless, the clause could not be used in such circumstances. The Secretary of State would have to go to the High Court and convince it that the continuation of the dispute would injure the national economy, imperil national security, cause serious risk of disease or endanger life.

I cannot think of any part of the Bill which could not be improved upon by the insertion of the clause if we are to look after the national interest, people's lives, national security and the national economy. It is only in those circumstances that the Secretary of State should have the power to use the clause, and even then only if he considers that its use would be conducive to a settlement.

I commend the clause to the House as a useful additional armoury for the Secretary of State in dealing with industrial problems.

Photo of Mr Tom King Mr Tom King , Bridgwater

I rise briefly to support my hon. Friend the Member for Basingstoke (Mr. Mitchell). I am sorry that he did not receive more attention from some of the less serious hon. Members in moving what I regard as an important new clause. My hon. Friend set out the arguments clearly for what is by any standards an ample new clause. It can be seen that it provides a power that is properly circumscribed and subject to proper constraints and that it would be foolish of the House not to provide such power for the Secretary of State.

There are occasions of which we are all aware when the settlement of a dispute runs up against the clock and only in the latter stages of the dispute do the two sides get down to serious negotiation. If there were the risk of a dispute, a stoppage or an interruption of the seriousness that my hon. Friend has described, and which is well described in the clause, which could imperil life and present a threat to national security—such circumstances could involve the whole nation and our responsibility as a Parliament—we would wish to see negotiators provided with extra time in which to continue their work and hopefully arrive at a solution. In the new clause we have changed the length of time. We think there is a strong argument for saying that the original provision of 60 days was too long.

9.15 p.m.

There is a problem of acceptance by union negotiators and members in the type of situation we are dealing with. Thirty days may seem a more acceptable interruption than 60 days. It is not unreasonable to expect industrial action to be suspended for that period. It is not linked to a ballot. I share the reservations of my hon. Friend the Member for Basingstoke about the disadvantages of a ballot. This is not a substantial change or a radical alteration. It is merely a useful additional power which could be held by the Secretary of State in the national interest. He could use it only if it was conductive to the settlement of a dispute.

Obviously, many hon. Members will say that there will be many occasions when such a provision will not help. In that event it would not apply. There are, however, occasions when a little extra time could help to prevent a damaging dispute. The proposal is properly circumscribed in that not only does the Secretary of State have to be satisfied that it would be helpful but he has to persuade an independent High Court judge.

It would represent no fundamental change of ground for the Government to accept the new clause. It is a useful additional power which could be of real benefit to the nation in certain circumstances when there could otherwise be extremely damaging, dangerous and disruptive disputes.

Photo of Mr John Fraser Mr John Fraser , Lambeth Norwood

Except for the substitution of 30 days for 60 days and the mention of the High Court, the new clause is virtually a re-enactment of Sections 138 and 140 of the ill-fated Industrial Relations Act 1971. I shall try to give the House some other reasons for rejecting it.

First, the clause proceeds on the erroneous assumption that at the point when a great deal of tact, patience and ability is required to choose the right moment for the Secretary of State or his conciliation officers to intervene in a highly-charged industrial relations situation, the issue should be transferred from the unpretentious premises and conciliatory atmosphere of 8 St. James's Square to the High Court. That is not the right approach. We do not believe that we can solve such things by mock Taft-Hartley in a mock-Gothic courtroom. The way to do this is by conciliation using well-tried methods.

Secondly, the clause assumes that the courts can intervene to improve industrial relations. This is not the case. The clause refers to industrial action short of a strike. Can it be seriously suggested that a court will be able to supervise whether a rule book is being operated properly by putting people in lorry or locomotive cabs? This is not so.

Thirdly, the provisions of the clause are unnecessary. We have adequate legislation for dealing with emergency situations. We have the Emergency Powers Act, which was frequently used by the last Government and Governments before them. We have the ability to set up courts of inquiry. We have the facilities of the conciliation service. These are things which in the past have been used.

Photo of Mr David Mitchell Mr David Mitchell , Basingstoke

Is the hon. Gentleman suggesting that the Government already have power to order a strike to cease during a period of further negotiation?

Photo of Mr John Fraser Mr John Fraser , Lambeth Norwood

I did not say that. I said that the Government already have adequate powers to deal with emergency situations.

The method proposed in the new clause has never worked. If it was thought to be workable, why was it not used during the 1972 and 1973 coal strikes? Why did not armies of tipstaffs, bailiffs, sheriffs and process servers go round the pit villages to try to bring about a settlement? The previous Government recognised that situations like that seldom arise. I suggest that it is an appropriate weapon only for the purpose of committing hara-kiri.

Photo of Mr Robert Redmond Mr Robert Redmond , Bolton West

The hon. Gentleman is saying that he must not have these powers in case the use of them makes the situation worse. No one is suggesting that the Secretary of State must use the powers unless certain conditions are fulfilled. If the Minister suggests that it is a bad thing to give the Secretary of State powers that he does not have to use, he is defeating his own argument.

Photo of Mr John Fraser Mr John Fraser , Lambeth Norwood

The argument that the clause is likely to be redundant is not a good reason for inserting it in the Bill. The procedure is alien to British and European industrial relations. It is copied from the United States. We have our own better, well-tried methods, and we do not need to import that procedure from the United States. There is no evidence that the procedure has been notably successful in the United States. The ability to hold up a strike merely resets the timetable for industrial action. The procedure is best left on the other side of the Atlantic.

In addition, the clause is badly phrased. It puts upon the Secretary of State a judge's function, namely, to decide whether there is an industrial dispute. It puts on the court a function which should belong to the Secretary of State, namely, whether there is an emergency. The procedure has been used on one occasion, during the railway dispute which was concluded by a ballot, and on that occasion the right hon. Member for Farnham (Mr. Macmillan) got a lot of egg on his face. All that happened during the cooling-off period was four hours of negotiation. Other methods of trying to deal with that dispute might have been better.

It is noticeable that the clause, which is a re-enactment of the 1971 Act, is not put forward by the official Opposition. I do not suggest that the Opposition are infallible in these matters or that they have an exclusive pool of knowledge, but it is significant that, having experienced the possibility of using these powers, they do not suggest that they should be re-enacted.

The Clause has been put forward by the hon. Members for Basingstoke (Mr. Mitchell) and Bridgwater (Mr. King), whom I like to think of as Burke and Hare resurrecting a corpse in the morbid pathology of this debate. It is a corpse that stinks and would be better buried, and I hope that the Opposition will bury it by withdrawing the clause.

Photo of Sir Raymond Gower Sir Raymond Gower , Barry

That reply is an extremely frivolous one and unworthy of the Minister. My hon. Friend put forward the clause for the purpose of providing a useful power which could be used occasionally. The Minister pulled the clause to pieces in a silly way, using phrases about Burke and Hare which I could hardly believe that I heard correctly.

The Minister has much experience in these matters and he knows that once a dispute starts, attitudes tend to harden and there may be circumstances in which a cooling off period would be useful.

The Minister's comment that this procedure may be used in other parts of the world but is not consistent with our methods was a "little England" remark. Does the Minister suggest that our industrial history is so perfect that we cannot look at the methods used elsewhere? Is he suggesting that everything we have done in this country has been so successful that we cannot benefit from the experience of others?

Finally, the Minister said that the clause had not been introduced by the Opposition Front Bench. But a clause can be put forward effectively from any part of the House. I thought that the argument was put extremely clearly and effectively from the Opposition back benches and I hope that it will receive overwhelming support.

Photo of Mr Cranley Onslow Mr Cranley Onslow , Woking

I am sorry that the Under-Secretary of State for Employment, who replied to the debate on the clause, was not a member of the Standing Committee. If he had been a member, he would have had the opportunity to learn that it pays not to try to be clever, or frivolous, or to coin phrases, or to quote from the "bumper fun book" of Transport House.

Photo of Mr Arthur Lewis Mr Arthur Lewis , Newham North West

The hon. Gentleman speaks from experience.

Onslow:

Yes, I do speak from experience, unlike certain Labour Members.

Photo of Mr John Ellis Mr John Ellis , Brigg and Scunthorpe

Will the hon. Gentleman allow me to intervene?

Photo of Mr Cranley Onslow Mr Cranley Onslow , Woking

No. I learned from experience in watching the Secretary of State for Employment in action in the Committee. The right hon. Gentleman to some extent mellowed and matured when he was confronted with what happens when a Minister wants to get his legislation through. Eventually we managed to persuade the Secretary of State of that fact. The right hon. Gentleman's attitude to the Committee was constructive and understanding.

Photo of Mr Cranley Onslow Mr Cranley Onslow , Woking

I cannot help it if the hon. Gentleman will not take it from me that the Secretary of State was sympathetic and understanding.

Photo of Mr Cranley Onslow Mr Cranley Onslow , Woking

I wish the hon. Member for Brigg and Scunthorpe (Mr. Ellis) would stop touting his wares.

Photo of Mr Cranley Onslow Mr Cranley Onslow , Woking

No, I will not give way. The hon. Gentleman can make his speech when he gets his chance.

The point I want to make to the Under-Secretary of State for Employment is that if he wants to make progress in the Report stage he should seek to reply to debates in the same spirit in which clauses are moved and to show an understanding of the seriousness of the subject. Those who took part in the Committee stage showed that they were capable of this sort of understanding. If the Under-Secretary of State cannot learn that lesson, then it is a pity. If that sort of attitude had not been adopted in Committee, we would not now be considering; this Bill on Report.

Photo of Mr David Mitchell Mr David Mitchell , Basingstoke

Despite the wholly unsatisfactory reply made by the Government spokesman, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Photo of Mr Oscar Murton Mr Oscar Murton , Poole

I understand that the hon. Member for Hackney, South and Shoreditch (Mr. Brown) does not wish to move new Clause 4.

We come to new Clause 5 which perhaps the hon. Member for Rochdale (Mr. Smith) will move formally.

Photo of Mr Arthur Lewis Mr Arthur Lewis , Newham North West

On a point of order, Mr. Deputy Speaker. I gave you notice a little earlier that I wished to raise a point of order and it was suggested that I should leave the matter until after the vote.

A short while ago there was a disturbance in which there was a dispute over the vote. You, Sir, said that you would call the vote again because of the dispute. I believe that when in the past this has happened there has been some announcement or explanation of the reason why the vote has been called again. In this case I understand that the Tory Opposition disputed what had happened, thinking that they had a majority of five and, because they could not agree the situation with the Tellers, we had a re-called vote and it resulted in a majority of one. I should like to know what happened. May we be told the reason for taking the Division again?

9.30 p.m.

Photo of Mr Oscar Murton Mr Oscar Murton , Poole

I think that I can help the hon. Gentleman. I know nothing of the reasons for what happened, but my information is that there was a disagreement between the Tellers. In view of that, I followed the procedure laid down in Erskine May, which says: If two tellers differ as to the numbers on the side told by them, or if a mistake regarding the numbers be discovered, unless the tellers agree thereon, a second division must take place. That is what I did, and I ruled that a second Division must take place.