HC Deb 14 March 1871 vol 204 cc2032-46

Order for Second Reading read.

Motion made, and Question proposed, "That the Bill be now read a second time."—(Mr. Bruce.)

MR. STEPHEN CAVE

said, that in making a few remarks on this Bill he wished, in the first place, to disclaim any hostility to the principle of trades unions, or even of strikes. Few who had paid attention to the subject could have failed to perceive that the proportion between wages and profits was very seldom thought of in settling the amount of wages. The political economist might say that a man was not bound to give above the market price for a day's work more than for a coat or a hat, that there was no reason why he should offer higher wages than the lowest that a workman would take, and that if these were not enough to keep body and soul together, so much the worse for the workman, who had nothing more valuable to sell. The case of clerks in many shops and smaller mercantile houses, and of the lace makers in the south of Devon, occurred to him as instances in which, from very different causes, there was no sort of proportion between the profits of the principals and the wages of the workpeople, though in both cases the work was good, and might be much more highly paid. In the former case the enormous supply, compared with the demand, was the cause of low pay; and in the latter the wretched condition of the people and the bondage to which they were reduced by what was practically the truck system. In neither of these cases could there be resistance without combination. The employers could go elsewhere or wait. The labour of the employed—his only saleable property—would not keep. It was like meat or fish, which in hot weather must be rapidly disposed of. Assistance from without alone could place the contracting parties on equal conditions, for he was only speaking of cases in which the employers could well afford to pay more. Trades unions, enabling workpeople to make better terms with their employers, had put an end to starving wages in many trades. No one could expect people to go on receiving such wages with satisfaction. No one could find fault with strikes aimed against injustice and wrong. What were co-operative stores but combination against overcharge and adulteration? But there was another side to the question. It was when the so-called leaders of the workpeople, men who had attained their position perhaps by that all-powerful weapon among the masses, "the gift of the gab," men who delighted in warfare, from which they derived, if not pecuniary benefits, a position of power and consequence. When they sought to abolish the difference between good and bad workmen, and to induce people who were perfectly satisfied with their position and their wages to join in strikes, he was sure that the clear intellect of Mr. Justice Hannen, whom the right hon. Gentleman had quoted on bringing in his Bill, would not fail to see that such proceedings were not only injurious to the particular employer, but to the public. He had seen a somewhat fine distinction drawn in a recent publication—namely, this, that if the strike was in a trade in which we had foreign competitors it was injurious to the public, because it might drive the trade entirely out of the country; but if it was in a home trade, such as the various building trades, then it was a mere question between master and man. But what did an hon. Member complain of last year? That the doors and window frames of the new St. Thomas's Hospital came ready made from abroad, where, in consequence of disputes and strikes in that portion of the building trade, they could be obtained cheaper and better than at home. So much was this question one of degree that it was very difficult to say when the action of a trade union ceased to be beneficial, and became contrary to public policy. But the fault he found with the Bill was that while it did not seem to diminish the chances of disagreement between workmen and employers, it appeared to recognize acts which no one could doubt were contrary to public policy. As far as he understood the Bill, there would be no objection whatever to grant a certificate of registry, with all its advantages, to such unions as those of the Manchester bricklayers and masons, among whose rules he found the following:— That no master bricklayer shall have more than three apprentices; that all workmen should be paid the same wages, without reference to their ability or industry. Let them imagine such regulations emanating from the Inns of Court or Colleges of Surgeons or Physicians? Yet they represented callings which were equally overstocked. Another rule stated that no bricks should be carried in wheelbarrows, which reminded him of the negroes on an estate in Jamaica, who, when wheelbarrows were introduced from England, resented the innovation so much that they carried them on their heads as they had done their old baskets. Bricklayers' labourers were not by another rule to go up one ladder and down another—an edict only to be compared with that in the Arabian Nights, which condemned to death the pastry cook who had made cream tarts without pepper. Again it was ordered— That every bricklayer should have an attendant whether he wanted him or not, and that no stones should be shaped in the quarry, but that a quantity of the useless superfluous mass must be brought at increased expense to the workshop. Let the House imagine such a rule enforced with reference, for instance, to the building of the Wolf Bock Lighthouse off the coast of Cornwall. He should be sorry to think that any encouragement, however indirect, was given by the Bill to rules so arbitrary, capricious, and mischievous, and though no agreement to obey such rules could be legally enforced, yet he feared that there would be many other ways of enforcing them within the letter of the law, which would continue to work mischief till the slow progress of true education convinced the upholders of such rules that they were running in the very teeth of their own best interests.

MR. T. HUGHES

said, in answer to the objection of his right hon. Friend (Mr. S. Cave), as to the nature of some of the rules of the unions, that the object of this Bill was to give the privilege of combination, including the right to strikes, to workpeople, and whether the rules of the unions were objectionable or not did not really matter. There was to be a free right of combination so long as the rules were made public. Of course, if there was anything absolutely illegal in the rules, it would be detected by the registrar, who would refuse to register them. The Bill seemed to him to be an extremely good one in almost every respect. It abolished all the laws which had produced bad results in bygone times, and it gave to societies that right of combination, which it would be admitted they deserved, by the manner in which they had behaved for many years past. It was true that some combinations had done acts, and had made rules, that had caused very serious evils in various parts of the country; but such unions were very few, and in general trades unions had been very beneficial. The great argument from the workmens' point of view for such combinations was, that wherever they had been broken down through strikes not being successful, the result had been that the condition of the workpeople had fallen very low. This was the case 30 years ago in the East End of London with the tailors' union; and ever since this branch of labour had been in a deplorable con- dition, the wages not being sufficient to support the men in decency. Anyone who perused the evidence given before the Commission must come to the conclusion that trades unions had become so powerful and so well organized that it would be useless to contend any longer against their having a right to that legal position which the Bill proposed to give them. He said on a previous occasion that the only feature of the Bill which was objectionable was that it threatened to perpetuate the evil which had arisen from the construction which had been placed by the Courts upon the words "molestation" and "obstruction" in the Act of Geo. IV. The words had been so construed as to make criminal acts which were not cognizable by the ordinary criminal law; for instance, such acts as calling out in the street to men passing; or such an act as a man, employed to represent the union, telling the master that "there would be a row" if a certain course of action were followed. Since the passing of that Act, there had been a great number of cases in which workpeople had been imprisoned in consequence of the interpretation put upon those words "molestation" and "obstruction;" but in no instance had the Act been brought to bear upon combinations of employers, and the consequence was that the feeling against those clauses of the Act had been for many years exceedingly strong among working men. When he found that this Bill would perpetuate the clauses relating to molestation and obstruction he thought it to be an error, and that the better policy would have been to remove these words, which were extremely difficult of definition, and to pass the Bill without defining what these phrases were to mean. If, however, those words were to be retained, he was bound to admit that the 3rd clause was as successful an attempt to define them as was likely to be made; for it confined their meaning practically to two offences, those of picketing and rattening. These were the two offences dealt with by the clause. His objection to it was, that it made acts penal in one case which you could not suppress in the other. When a strike occurred, the first object of the employer was to prevent his workmen from getting other employment, while the object of the workmen was to prevent him from filling their places. The only way by which the men could effect this object was, to watch and warn other workpeople from furnishing the labour which the employers required. This was the offence of picketing; but if picketing were employed by the men, on the other hand what did the employers do? They sent a list of their workmen to other employers in the neighbourhood with notice that their works were closed, and requesting that their workmen might not be employed in other works in the neighbourhood. Now, this black list was the exact counterpart of picketing as practised by the men. He would give one instance of the use of these black lists, as they were called. Some three years ago there was a strike by the joiners at Manchester, and a circular was produced in evidence before the Trade Union Commissioners, signed by the secretary of the Masters' Union, convening a meeting of employers, "to take what steps may be thought necessary to prevent the men on strike from getting employment in other towns." His hon. and learned Friend (Mr. Jessel) was of opinion that words might be inserted in this Bill enforcing penalties against the masters for the issue of a black list, just as against the workmen for picketing. He feared, however, that this was impossible; and, therefore, the Bill was a one-sided enactment, making penal on the side of the men the very act which could not be made penal on the side of the employers. It was far better that this clause should be removed from the Bill. Another reason that he had for objecting to this clause was that it was bringing them back to the old difficulties as to the law of conspiracy. It was proposed to give to two magistrates a jurisdiction in these matters, which had never before been confided to such a tribunal. In the districts where strikes were most common, and where there were great works in the neighbourhood of which trades unions were powerful, the local magistracy was filled with persons of the same class as the employers—persons deeply interested in these questions—and it would be a very unfortunate piece of legislation to give jurisdiction to such persons under such circumstances. He thought if such jurisdiction were conferred upon magistrates, it should be given to stipendiary magistrates. There was this further objection—that they were seeking to in- troduce into a special Act, applying specially to trades unions, general provisions which, if they had any bearing at all, should apply to every person in the community. This Bill was applicable, not only to members of trades unions, but to all persons who did certain acts. If these offences were to be made penal for every person who committed them, he thought the Government Bill was not the place to introduce such a clause as this. It would be far better if his right hon. Friend the Secretary of State for the Home Department were to put these offences into a separate Act, where they would be dealt with as offences entirely apart from trades unionism, and which should declare that whoever committed them, whether he was a member of a trades union or not, would be subject to certain penalties. All the best men connected with trades unions felt that such offences as rattening, dogging, and hustling men in the streets, should, be made penal. With respect to the other clauses, he looked upon them as satisfactory, and he thought that the Bill did all that was necessary. In the 15th clause, subsection 6, it was enacted that— The Board of Trade may from time to time make regulations respecting registry under this Act, and respecting the seal (if any) to be used for the purpose of such registry, and the forms to be used for such registry, and the inspection of documents kept by the registrar under this Act, and respecting the fees, if any, to be paid on registry not exceeding the fees specified in the second schedule to this Act, and generally for carrying this Act into effect. That was a very wide clause, and it should be distinctly understood that such words would be inserted as would be necessary to make it quite clear that the jurisdiction of the Board of Trade was simply with respect to the regulations of the registry, and not with respect to the rules which were to be submitted to it for registration. In the 19th clause there was another question as to registration, which was of some little importance—namely, under what class of societies trades unions were to be registered—whether under the Friendly Societies' Act or the Joint-stock Companies Act. It appeared to him that the proper thing would be to register the unions under the Friendly Societies' Act, as the Joint-stock Acts were framed for the purposes of commercial associations, and were worked by a machinery which was inapplicable to such unions. He thought this Bill would do away with almost all the difficulties, and heartburnings, and jealousies which had been so prevalent among members of trades unions in consequence of the legislation of past years, and which was regarded by them as extremely one-sided and penal. The existence of these unions as legal associations would greatly help the system of arbitration which had done so much to settle disputes between the employer and the employed, and reserving his opinion on the 3rd clause, he should give his hearty support to the Bill, which, he believed, would work extremely well.

SIR CHARLES ADDERLEY

said, hon. Members were perfectly agreed as to the general principle of the Bill and ready to support it on the second reading, although there were many who would wish to make alterations in its clauses; but when the hon. and learned Member for Frome (Mr. T. Hughes) said they should recognize all kinds of combinations not for illegal purposes, he forgot that their recognition legalized. The law could legalize combinations for all purposes. The real principle at which they had arrived was that, for the purpose of mutual aid, combinations of all sorts should be promoted by the law on condition that there was nothing in the proceedings to militate against the public interest, and nothing of either violence or fraud. This was a principle which they had largely adopted in promoting friendly societies, which had formerly been treated as conspiracies, and the category of friendly societies had been gradually enlarged, while the principle of mutual aid on which they were based had been admitted to be of general application. The old objection to friendly societies was found to be a false one, and the law had restricted the public from entering into many very useful combinations. The principle of these societies had now been recognized, not only for benefit purposes, but also for trade co-operation. Employers of labour were in themselves a great combination, and there ought to be a countervailing power permitted to the employed to guard their own interests. It was to be hoped that this measure would lead, not only to co-operation on each side, but to a great deal of co-operation between these two parties and to the constitution of joint boards of conciliation. The best way to proceed was for the two to act together; but, at all events, the law should not be such as to render the one side powerful and the other weak. His own objection to the Bill generally was that it seemed to needlessly complicate the subject. If we had recognized the general principle of combinations for mutual aid, why not act upon it, in the case of trades unions, so as to bring them, as far as possible, under the principle? It seemed to him to be a great fault to make a new law for every case, as they had made a separate Factory Act for every trade. Uniformity in the application of principle was one of the law's chief merits; and want of uniformity was, in itself, an evil. What was there to prevent trades unions, so far as their operation was for benefit purposes capable of calculation, from being brought under the Friendly Societies' Acts; all benefit societies might be brought under one principle, and the law should give them its protection, and allow them to sue and be sued, provided they would submit to the conditions that would prevent their militating against the general good. Trades unions had two purposes—they were trade societies, and they were benefit societies. In the latter respect there could be no reason why they should not come under the Friendly Societies' Acts. The trade department was not equally capable of calculation. But what reason had been assigned why these trade societies should not also be brought under the general principle of legalized combinations which had been so widely extended of late years for various purposes? He believed he might state, on the high authority of the late Sir George Cornewall Lewis, that all such societies should be brought under the law. The two objections made against this Bill had been on account of the 3rd clause, the penal clause, and on account of the terms of registration. There were special crimes which had sprung out of trades unions; but it is said these could have been brought under the general criminal law. He did not himself see any stigma attached to trades unions by dealing with their abuses in the Act which legalized them, any more than similarly dealing with public-house abuses in Licensing Acts stigmatized that trade. But if such an objection were seriously felt it might be easily met. If the special acts were added to the category of crimes in a separate Bill, the whole difficulty would be got rid of at once. The present Bill had grown up during years of struggle, and inquiry, and mutual concessions, for it was desirable to secure the result with goodwill. If what he had suggested should be carried out, he trusted that care would be taken that the Act touching the crimes would be passed before the Royal Assent was given to the Trades Unions Bill, as however partial the abuses of trades unions might be, still it would not be safe to legalize their use without security against such possible abuse.

MR JESSEL

said, he could not admit that the Bill was directed to any such general alteration of the law as the right hon. Gentleman (Sir Charles Adderley) supposed. The object of the Bill was one which he believed the whole House approved—namely, to eliminate one single element of illegality from the constitution of trades unions, this element being that they were unlawful, simply because they were in restraint of trade, and the moment they eliminated this they made them lawful, with the special exception provided by the Act. He entirely agreed with the remarks made by his hon. and learned Friend the Member for Frome (Mr. T. Hughes) as to special class legislation; but he wished to point out to the House that this legislation was not fairly obnoxious to the charge of being class legislation. Class legislation was the conferring of special privileges on a single class of the community, or enacting special prohibitions against a single class as distinguished from all others. But it was not class legislation to prohibit offences by any member of the community merely because such offences were committed usually by one class only. There was in our criminal legislation an enactment which prohibited the possession of house-breaking implements by any member of the community. This might be said to be class legislation as regarded burglars, because no other members of the community carried about with them housebreaking implements. But this was not class legislation; and if we prohibited the offences which had been described as "rattening" and "picketing," it was no answer to say that here was class legislation, because they were not offences likely to be committed except by handicraftsmen. The complaints of the working classes, on the ground of the prohi- bitory enactments included in the Bill, were not well founded. He thought the working classes had great cause to be grateful to the Government for defining the offences for which they were to be punished. On this question Common Law Judges had differed in opinion, and it might be concluded that they always would differ when it was considered that they had to look back to ancient decisions and from them to educe principles applicable to the present state of things. Though we might be agreed as to a principle, it was difficult to agree as to its application to a totally different state of circumstances from that which formerly existed. If we simply abolished the combination laws, and left the matter to be dealt with by the common law, we should transfer that accurate definition of crime, which ought to be the province of legislation, to the Judges, and we should leave whole classes in utter uncertainty as to what their duties and obligations were. Whether the definitions given in the Bill were accurate, or whether they admitted of improvement was, of course, a question for Committee; but the working classes would wish to see the offences, whatever they might be, accurately and carefully defined. He wished to call attention to the 5th clause, which introduced a new principle as regarded contracts; for this was the first attempt, so far as he knew, to make a legal contract not enforceable by law. It was an illogical proposition, a contradiction in terms, to call that a contract which could not be enforced; there was nothing of the kind in our law at present, and it would be extremely objectionable to enact such a thing. It had lately been often enacted that certain persons, such as women and children under the Factory Acts, should not be at liberty to contract, and this had been extended to the case of some tenant-farmers in Ireland; but always on the ground that they were not competent to contract, and that it was for their own benefit that the power should be withdrawn; but this was the first time it had been proposed that men, fully competent to enter into a contract which was unobjectionable, should not be allowed to enforce it. It was an intelligible proposition that certain contracts were opposed to public policy and that they should be invalid, but the proposition of the Bill was not this. It tad been said they were to assimilate trades unions to clubs, so that members were to be entitled to pay their subscriptions or leave them alone as they liked; but members of clubs could be compelled to pay their subscriptions unless they gave notice of their intention to withdraw. We were every day telling the labouring classes that they were capable of managing their own affairs, and were we to refuse them the recognition of contracts which were not obnoxious to the general law of the country? He would suggest for the consideration of the Government that it would be better to declare that certain contracts which were mischievous in themselves, and which were contrary to the general policy of the law, should be invalid. That was a well-known principle, and such invalidity need not draw with it consequences which had been found inconvenient. The 13th clause said that an auditor appointed by the managers of a trade union should decide what sums were properly expended and what were not; and as the clause stood, if the managing body thought that any application of funds towards a strike was not desirable, the auditor appointed by them could disallow the payment, although it might have been made in accordance with the rules, and the unfortunate treasurer would have to pay the money out of his own pocket—this should be altered. As to contract, it would be simpler and wiser to declare that such and such a contract should be invalid; but such invalidity should not prevent the calling the treasurer to account, or any other special object which it was desirable to accomplish, and that could be done without infringing the general policy of the law. Without entering further into the discussion of details, he should only record his opinion that the working classes would be glad to find that it would no longer be several statutes, but one short code, that would tell them what they could not do, and what they could do, in accordance with law.

MR. HERMON

said, that when the Bill was introduced he had promised it his support, and he saw no reason now for withdrawing it. He could not agree that trades unions were unmitigated blessings, either to the working classes or to the country at large. He believed that combinations, both of masters and men, were equally objectionable. Representing a constituency whose chief employment was daily labour, he had consulted both the employers and the employed on it, and from neither of them had he received any objection to the Bill. Therefore, he felt bound to consider that they supported it, and he should do the same. He was glad that the Bill contained legal protection to the funds of the trades unions. He regretted that this Bill did not attempt to constitute some legal Court to which disputes between employers and workmen might be referred, although, at the same time, he saw that there might be great difficulty in making the decisions of such a Court binding upon the parties interested. If a little mutual forbearance were exercised at the commencement of strikes, matters might easily be managed. He was sorry to have heard what fell from the hon. and learned Member for Frome (Mr. T. Hughes) with reference to the black list; all he could say was that he was in happy ignorance of that part of the subject.

MR. ANDERSON

said, he had no reason to be dissatisfied with the Bill, which he regarded as being a good measure. He did not like the 3rd clause, however, which covered matters which might, he thought, be met by common law; and, coupled with Clause 21, it was very objectionable. By the latter, magistrates who were employers might sit on the bench, judging disputes between men and employers, and having to interpret the very peculiar clauses about molestation and obstruction; and the disqualification of masters in the same trade as that with which the case was connected sitting in judgment was not enough. For his own part, he would prefer stipendiary magistrates; and, where there were no such judges, he should be inclined to adopt the Amendment of the hon. Member for Carlisle (Mr. Potter).

THE SOLICITOR GENERAL

said, he thought it might be desirable that he should briefly explain the scope and object of the Bill. It was not a measure which dealt with trades unions only, inasmuch as it proposed to deal with the whole law of combination, whether entered into by trades unions, or any other body of individuals. In pursuit of combination, persons might be guilty of certain acts, in themselves objectionable, which the common law, or any existing statute, did not touch, and which could be dealt with now only by expensive and uncertain means. The 3rd clause would provide for that which had hitherto been left to vagueness and uncertainty, and the definition of which had been enforced in different ways by different Judges, sometimes extremely harshly and unfairly. The Government had endeavoured to limit carefully what acts only should be criminal; what acts should be deemed to constitute "molestation" and "obstruction;" and for none others in pursuit of combination should persons be punishable. It might or might not be successful legislation; but it was, at all events, clear and intelligible. The hon. and learned Member for Dover (Mr. Jessel) objected that, while combination was rendered lawful, there was no legal sanction given for enforcement of their engagements. He (the Solicitor General) concurred in the dictum of Mr. Justice Crompton to the effect that, if such agreements were enforceable at law, they should be also enforceable in equity. And what would be the consequence? The Court of Chancery would be called upon to enforce strikes; actions maintainable for breaches of contract not to work; and all manner of litigation which lawyers would look upon as profitable, but which the country at large would not long stand. Then it must be remembered that in this Bill they were dealing with a subject which stood by itself; and, though its provisions were not to be judged by lawyers, or by logic, it would abide the test of common sense. Under these circumstances, he trusted the House would consent to the second reading of the Bill.

MR. MUNDELLA

said, he believed the Bill to be an honest attempt to settle a long-disputed question; and considered it, on the whole, to be a satisfactory measure. The chief objection to it was the 3rd clause; and, with respect to it, there were many offences there made penal which he would have been glad to see punished under the criminal law of the country. He hoped that the clause would be omitted from the Bill.

MR. H. A. HERBERT

said, he thought the 3rd clause ought to be omitted; it was so difficult to define what "molestation" was.

MR. BRUCE

said, that while they secured to the fullest extent the civil rights of the trades unions, it was necessary also to protect the workmen themselves against intimidation and molestation. There were certain offences described by these terms which were not met by the criminal law; and it seemed to him that the Government, in dealing with them in the manner proposed, had taken a course which would greatly facilitate the progress of the Bill through both Houses of Parliament.

Question put, and agreed to.

Bill read a second time, and committed for Thursday 23rd March.