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Lord Tebbit: My Lords, the noble Lord's memory goes back to the debates of the early 1980s, as mine does. He will recollect that I resisted all efforts made by people on both sides of the House in the other place to import lumps of foreign union law into the British context. It was said always that you cannot just import one bit of a culture. The American culture may allow for legalised recognition of trade unions, but with that go many other matters which the noble Lord would not like to see imported here. I had to find a British way and I found one which has worked.

Lord Wedderburn of Charlton: My Lords, I am grateful to the noble Lord because I, too, have often written that it is no good taking a few scraps of laws from some other jurisdiction. It is a British empirical question whether, in so far as empiricism can ever determine the future, we think that getting employers and unions together with a system such as Schedule 1 contains of putting a premium on agreements would be better for our industry than, as we had before in 1978, a system for union recognition but with the ability for just a few firms, such as Grunwick, to destroy the system altogether. We are not far apart, but we should take it further in Committee.

I now return to the two points I wish to make. First, what is the nature of the obligation that we impose upon an employer and union in Schedule 1? I say that to the Minister because we still have a problem. The

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Government's answer was given by my honourable friend the Minister for trade, industry and small firms, Mr. Wills, on 16th March:

    "If the CAC has to impose a bargaining procedure...because the parties cannot agree, it will be legally binding. However it will be a procedure for holding talks only; the parties will not be required to reach agreement for the simple reason that people cannot be forced to agree".--[Official Report, Commons, Standing Committee E, 16/3/99; col. 348.] Few of us would disagree with the last sentiment, but there are other levels of duty. There is a duty in the United States and France to bargain, a duty to consult or, nearer the mark, a duty in two European directives--but nothing turns on it--to consult with a view to reaching agreement. There is the duty to submit to arbitration and a whole string of ranges of duty.

I do not believe that we are trying to put on the statute book merely a duty to talk in one sense. It is not a duty which would be satisfied by Mr. Boulwar, vice president of General Electric in the United States in the 1950s. When he met the union, he used to bring his research people and their figures. He would say: "It's very nice to meet you for a talk, but on the table is an offer devised by my research people. That's the best the corporation can do and it cannot be changed, no matter how long we talk." That may sound an absurd example, but it went on happening, with revised Boulwarism and so on.

Perhaps we mean a duty to talk with some glimmer at least of intention to agree or with a view to agreement. Similarly, where there has been an agreement or specified method, as it is called by the CAC, it can be enforced as a legally binding contract but only by the remedy of specific performance. Unhappily, "specific performance" is a concept properly understood only by the finely attuned Chancery mind of property relationships and it carries collateral legal principles such as the maxim, "He who comes to equity must come with clean hands". I am not sure what the shop floor will make of that. I am trying to be helpful because this point has not exercised the other place. We might look at the words and give an explanation of what is meant by the remedy of specific performance and its collateral problems.

That may sound critical. I have deliberately touched on some critical points because we should look at all of them in Committee. As far as concerns the Bill as a whole, it is one that in a decade will be seen as a realistic and sensible development in the history of employment legislation.

6.30 p.m.

Lord Birkett: My Lords, I draw attention to one particular, even singular, problem to which the Bill may give rise. Before I do so, I add my congratulations to the noble Lord, Lord Walker of Doncaster. How pleasing it was to hear a maiden speech that carried not only conviction but real authority. I hope that we hear a lot more from the noble Lord.

The problem to which I refer concerns the theatre and the West End in particular. I need hardly remind your Lordships of the importance of the theatre to this country, not merely as a matter of pride and prestige--

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although goodness knows, that is important. Thank goodness the world still regards the British theatre with some awe and comes from a long way off to see it. I refer also to the economy. The Wyndham Report from the Society of London Theatre last year pointed out that in one year the West End contributed about £1 billion of benefit to the economy--including £225 million surplus to the balance of payments and £200 million of tax revenue. So, economically, the theatre is of huge importance.

The West End has a number of extremely long-running, popular shows. "Cats" has been running 18 years; "Starlight Express", 15 years; "Les Miserables", 13 years; "Miss Saigon", nine years; and "Grease", five years. I wish that the noble Lord, Lord Lloyd-Webber, were here so that he could blush at how many of those shows he is concerned with. It is tempting to think how lucky he is to have written such brilliant musicals that everyone wants to see. One thinks that once such a production is a success it stays a success--that it runs for 13 years and the income comes rolling in. In fact, it is difficult to keep such shows fresh and exciting so that people will want to come to see them as if they were new shows. If a production gets tired, old and rundown, people will not come to see it.

Sometimes it is simply a matter of age on the part of the cast. Someone who, in 1952, joined the cast of "The Mousetrap" as a bright young thing of 23 would now be a bright young thing of 70. There comes a moment when there has to be a cast change. Funnily enough, it is not really about age but about freshness.

Lord McIntosh of Haringey: My Lords, I believe that I am right in saying that the orchestra of "Starlight Express" has remained unchanged over the 18 years since the production first opened.

Lord Birkett: My Lords, I defer to the noble Lord's knowledge. How musicians keep themselves fresh in the way that actors cannot, I would not dream of trying to explain. In fact, I am not sure that I know.

It is nice that London is regarded now as the home of great musicals, more so than Broadway. Someone appearing in such a production will appear in eight shows a week--Monday to Saturday and two matinees. In a year or 50 weeks, one will have appeared 400 times. This is nothing to do with the talent and energy of the actors. It applies as much to the chorus as to the principal performers. It is difficult to go on for more than a year and continue to be fresh. People have coped in the past by making fixed-term contracts of one year, at the end of which the contract may be renewed for a further year but most often is not. The initial contract contains a clause whereby the cast member promises not to claim unfair dismissal at the end of the contract because its termination is perfectly foreseeable. Under Clause 16 of the Bill, such a contract would no longer be legal. That will cause considerable problems. Such contracts have not been a matter of dispute in the past but have represented an amicable arrangement that has continued happily. If the waiver concerning unfair dismissal is not allowed in future, that will have a damaging effect on the West End theatre in particular.

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I am sure that the Bill was not designed to do that and that the Government have no intention of damaging the West End theatre or the theatre in general. However, I foresee a technical problem. I hope that some time before Committee a way can be worked out of ensuring that the theatre is not damaged.

6.36 p.m.

Lord McCarthy: My Lords, I welcome and congratulate the noble Lord, Lord Walker of Doncaster, on his maiden speech. He was largely the person who wrote and put through the Employment Protection Act 1975, so it is appropriate that he should be here to see the introduction of another of the Employment Relations Bills.

I am not sure that the noble Lord, Lord Tebbit, is as against the 1975 Act as he thinks. Most of the time that he was attacking that legislation, he was talking about the Trade Union and Labour Relations Act 1974, which was the one with all the strikes in it. That does not help the noble Lord, Lord Walker, because he was responsible for that legislation as well. Anyway, we are glad to welcome someone who had so much to do with employment protection in the past.

I share with others an expression of joy. I say to you rejoice, rejoice, rejoice. We are beginning to reverse the nine weary Bills that we had between 1980 and 1993. We have not got there yet but the journey has begun. So I say rejoice, rejoice, rejoice.

As to the Opposition's case against the Bill, I took as the statement of that case the Second Reading speech in another place by the right honourable Member for Wokingham, Mr. Redwood. I did not recognise that case for a long time when the noble Baroness, Lady Miller of Hendon, began speaking because she was making all sorts of other points, more or less at random. Then towards the middle of her speech, the noble Baroness said much the same as the Opposition's case. I am talking about the Opposition's case, not the noble Baroness's personal case. If I am wrong, I hope that she will tell me.

As I understand it, the Opposition say three things. First, Mr. Redwood would say that he is not against better maternity leave or the granting of parental or family leave. He says there is nothing wrong with someone being accompanied over a grievance or a claim for compensation, or with bigger and wider coverage in respect of unfair dismissal. He says that such things--certainly on the individual side--are not wrong in themselves but are rather good, provided that they come from employers. That is the important thing. Mr. Redwood is not even saying that it is wrong for an employer to recognise a trade union if it represents the majority of the workers, but it is all a matter for the employer. He says such things are rather good and that most good employers do them already.

The second thing that the right honourable Member for Wokingham said is that it is all wrong for such provisions to be made by law; none of this stuff must be done by law. If the employer can afford it he or she will do it. The only reason the employer does not do it is because he or she cannot afford to do it.

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We come to the third point. In his Second Reading speech Mr. Redwood said the real problem was that the Bill would result in employers

    "shedding jobs and getting into grave financial difficulties".--[Official Report, Commons, 9/2/9; col. 142.] It would also undermine the competitive position of British industry. These are the things that are wrong. The employer knows best. Good employers do it. The only reason bad employers do not do it is that if they did so they would go bankrupt.

One can make several comments on that argument. The first comment that is particularly appropriate in this House, which has a long memory, is that there is nothing new in this argument. The argument was most persuasively advanced in this House in 1833 when Lord Shaftesbury pursued the Factories Bill. Noble Lords said at that time that it was ridiculous to have a Bill to provide that young girls could not work for more than 10 hours in the textile factories of Lancashire because all the money that they made and kept them, including everybody else in Lancashire, was earned in the last two hours of their work.

Cobbett commented on the suggestion that the industrial welfare of England depended on 30,000 little girls working for more than 12 hours a day. That idea was put forward in all seriousness by a very distinguished theoretical economist who was the first person to be a professor of economics at the University of Oxford. He was one of a long line of distinguished people to speak about the labour market who had no idea what they were talking about. He said that all the money was made in the last two hours.

But that was not the only comment. The argument that only the employer knew about these matters emerged again in 1909 with the beginning of the Trade Boards Acts when an attempt was made to introduce minimum wage legislation. The same argument was trotted out in this House and in another place. More recently, before the coming into power of the Thatcher government, the best known example of that argument was the first Bill promoted by my noble friend Lady Castle, the Equal Pay Bill of 1970. We were then told that there were 8.4 million women in the labour force and if equal pay for women was introduced that figure would inexorably fall to 7.6 million in two years, 6.3 million in four years and so on. Employers could not afford to pay equal pay and, if they were forced to do so, they would rather employ men than women. That argument has been made consistently. Most recently it has been put forward by the present Opposition. They say that 89 per cent of quoted employers in a survey believe that the Bill will cause an abuse of employment rights and difficulties for small firms.

Given that long historical account, the trouble with all these extreme statements is that none has turned out to be even remotely true. By 1860 employers in cotton, wool and other areas, not just textiles, were in favour of restrictions on working hours. They came to the House of Commons and House of Lords to ask for this legislation to be passed. Why? They said that if working hours were reduced from 12 to 10 hours, or even to nine-and-a-half hours, productivity would rise. They were better off with some restrictions on hours than they

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had been before. The same applied to the Trade Boards Acts. In 1945 the then Labour government extended the Trade Boards Acts and introduced the wages council system. That was supported by the Conservatives at the time. It was accepted that all the extreme arguments about the effect of minimum wage legislation had turned out to be absolute nonsense.

As to equal pay, when the Equal Pay Bill was introduced in 1970 there were 8.5 million women in the labour force. We now have 12 million women in the labour force, slightly more than men. It is men who have gone down in the labour force, not women. None of these extreme statements has ever had the slightest effect.

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