HC Deb 10 May 1926 vol 195 cc787-800

Motion made, and Question proposed, "That this House do now adjourn."—[Colonel Gibbs.]


I wish to take this occasion, on the Motion for the Adjournment of the House, to make a few observations on a matter which was raised by the right hon. and learned Member for Spen Valley (Sir J. Simon) at an extremely late hour in the evening, when unfortunately only a few members of the party to which I belong were able to be present. I wish to say at the outset that in the few observations which I shall make I merely desire to correct, as I think, certain remarks which the right hon. and learned Gentleman made. I think myself that it was in the highest degree unfortunate that these questions of law were introduced into the discussion at all. We are all anxious, I believe, to produce an atmosphere, a point of view which will be most conducive to the earliest possible settlement of this terrible dispute, and I think the proper place to discuss a highly debatable question of law is in the Law Courts and not here.

The right hon. and learned Gentleman's opinion may or may not be correct, but whether his opinion is or is not correct will ultimately be decided, if it be decided, by a proper and competent tribunal; but he did make certain remarks with regard to the law as it applies to this and other trade disputes which I believe to be incorrect, and I wish to remove what I believe to be a misapprehension which may exist. In the first place, in my view, the right hon. and learned Gentleman confused two entirely different matters. He seemed to suggest that the general strike which now exists is necessarily illegal because it is a strike in breach of contract. I have read the right hon. Gentleman's speech carefully and I cannot see that he ever pointed out to the House at any time during that speech that under the existing Trade Disputes Act an express immunity is conferred by Section 3 of that Act on anybody who procures a breach of contract in contemplation or furtherance of a trade dispute.


May I ask the hon. and learned Gentleman whether he gave notice to the right hon. Gentleman the Member for Spen Valley—


Did Simon give us notice?


I did not give notice to the right hon. Gentleman, as he gave me, and I understand the party to which I belong, no notice; but I certainly gave notice to the Attorney-General that I proposed to say a few words on this matter.

The ATTORNEY-GENERAL (Sir Douglas Hogg)

Only two minutes ago.


Does the hon. and learned Gentleman not know that it is usual in this House to give notice when dealing with an individual and personal speech? The right hon. Gentleman the Member for Spen Valley had no occassion the other night to give notice because he was not dealing with an individual speech.


I am not dealing with the right hon and learned Gentleman's individual speech; I am dealing with certain views of the law which he expressed and upon which I am entitled to comment. I am pointing out to the House that, whether it be right or whether it be wrong, the Legislature in its wisdom has decided that where a trade dispute exists the procurement of a breach of contract is not in itself an illegal matter. I think it is right that the House should have before it the whole of the law on this particular matter, and I think there is a danger that hon. and right hon. Members might go away with the view that the mere procurement of a breach of contract is in itself necessarily a legal wrong. It is not so. It will depend in the case of each indivi- dual act whether that act is or is not done in contemplation or in furtherance of a trade dispute; and whether a trade dispute does in any particular case exist or does not exist is a question of fact to be decided by the judge or jury at the trial. It is a matter upon which it is impossible to express any general opinion in advance. Whatever, therefore, may be the element of illegality in what has been done, it does not arise merely from the fact that there has been here a procurement of a breach of contract.

I do not want to comment on what the right hon. and learned Gentleman said in particular when I am dealing with the general principle, particularly as he is not here, but it is a known fact that the Liberal Party introduced the Trade Disputes Act, and passed the particular section to which I have referred, which does in terms legalise the procurement of a breach of contract in cases where a trade dispute is in contemplation or in furtherance. I am not saying that this is or is not the case at the present time; all I am pointing out is that it is, and must always remain, a question to be decided by a court of law; and in my view, with every desire—which I hope the House will believe me when I say I possess—to see the whole of this disastrous dispute adjusted at the very earliest moment, I do think that to say that certain people will or will not be liable to certain legal consequences, before competent tribunals have discussed and decided the question, is a very unfortunate way of approaching the position.

The illegality cannot exist in itself in the procurement of the breach of contract. The width, the size and the extension of the dispute will not in itself make illegal that which is not illegal if done in a smaller dispute. It has been decided over and over again in common law that, certainly where there is no breach of contract, a mere combination to cease labour, however great the extension, is not in itself an unlawful act. Whether it be an unlawful act or not must depend in the last resort on whether you have here a trade dispute within the definition of the Trade Disputes Act. That is a point that may or may not be decided in the future by a judge or jury. It is in the highest degree unfortunate that we should prejudice that decision, which may or may not have to be made in the future by statements of the law of the country. It is all a question of fact, and the question of fact still falls to be determined.

Nor do I understand the right hon. Gentleman when he speaks of trade union benefits being withheld from workers who take part in this dispute. I do not know whether such benefits will, or will not, be withheld. The right hon. Gentleman knows perfectly well—and certainly the Attorney-General will agree with me—that under the existing law, be it wise or unwise, in the case of every trade union no member can recover an action for benefits at present. And, therefore, if the strike were restricted to the smallest possible compass within one limited trade union, it will not be possible at present to recover benefits by reason of Section 4 of the Trade Union Act of 1870. Further, the right hon. Gentleman, as I read his speech, made a statement that individual persons breaking contracts would be liable for actions for damages. I do not believe anyone has disputed that statement. I remember my right hon. Friend the Member for Derby (Mr. Thomas) stated in the House in my hearing that the members of certain trade unions, in his opinion, would be liable for individual actions for damages if they broke their contract. That did not need any great legal erudition, nor was it a matter suddenly discovered when the right hon. Gentleman spoke, but on the general proposition—and here I think I shall have the support of the Attorney-General—the mere fact that a number of persons come out on strike in breach of contract will not in itself constitute that act a criminal wrong. There are exceptional eases of breach of contract in connection with the supply of electricity, gas and water where the breaking of contracts is, under the Conspiracy and Protection of Property Act, specifically a criminal wrong. When you are not dealing with this particular case, they are not criminal wrongs. They are not wrongs against the State. At the most they are the subject of a civil action of damages. Finally the right hon. Gentleman will agree with me that a trade union, whether there be a trade dispute or no trade dispute, in every action of Government is now protected from all suits by the operation of Section 4 of the Trade Disputes Act, 1906.

I should not have made the speech I have made had the right hon. Gentleman not intervened to give us a view of the law at this stage of the proceedings. I think it is most unfortunate that he made that statement, and it is most unfortunate that I have to reply to it, because the discussion of the legal opinion is going to do nothing to produce what we all want—that atmosphere and temper which is going to produce a settlement at the earliest possible moment. I have never disguised my view of the matter. I have stated before that I consider that anyone who has held office, who has taken the oath of allegiance to the King, and has taken oath of allegiance to be a Member of the House, is under an obligation to support the State and to maintain the law. No one can ever say that. I have done anything in the House, or out of it, to suggest anything to the contrary. But that does not say that I am not entitled to rise in my place, and correct what I believe to be an erroneous view of the law in certain circumstances. I hope nothing I have said will be construed by anyone as meaning that I think or desire or wish that anything I have said should for a moment extend the duration of these disputes. That is not my object at all. My object is solely to correct what I think was not an entirely clear statement of the law. As I understand the temper of the people of the country, while they are very readily moved by appeals to justice and to mutual consideration, they are not very readily moved by threats or coercion or legalities or illegalities, or matters of that kind. Therefore the matter will not be in the least prejudiced towards the settlement we all desire if I point out that the right hon. Gentleman has really, as I understand the matter, given to the House certain aspects of the legal position, at any rate as they occurred to him.

To repeat what I have said, I say this strike is not more illegal than any other strike because it is a breach of contract. It is more illegal than any strike of a single union if it be discovered that these breaches of contract have not occurred in contemplation or furtherance of a trade dispute. That decision whether these particular strikes are or are not in contemplation and furtherance of a trade dispute is a matter to be decided in a court of law, when all the facts and all the evidence and all the matters have been taken into consideration. It may be a matter which may be different between one union and another. General statements and general observations as to the legality of certain acts are really valueless until you consider the particular aspect of each particular case. It may well be that in one place a strike is lawful, and in another it is unlawful. I merely rise in my place, as one who has held office under the Crown as a Law Officer, to say that with every respect to the right hon. gentleman and I am not really ignorant of the particular branch of the law which we are discussing—it is impossible to say, with regard to any union or with regard to any man, in advance, until the matter has been considered by a judge and jury, whether there is or is not a legal liability. I deprecate very strongly any tendency in any part of the House to lay down maxims of law when the facts in relation to which those maxims have to be considered have not yet been discovered.

I regret that I was unable to raise this matter in the House the other night. I understand it was raised considerably after midnight. [AN HON. MEMBER: "At, ten minutes past eleven."] I was keeping such good hours that I was not here even then. It was raised at an hour when I was not able to be here, but I am sure the House will not think it unfair that another view of the law should be put before the House. The House does not wish to hear merely one side of this matter, and I am entitled to put the view of the law as it seems to me and what I want to say, really and sincerely, is that I hope the settlement which I believe will soon be achieved in this matter will not be prejudiced by a consideration of what may ultimately be decided hereafter by a court of law. That is not the matter which is now under consideration. That is a matter to be decided hereafter by a properly constituted tribunal appointed for that business. Whatever the decision of this tribunal we shall all, as law-abiding subjects, obey it. I respect and obey the decision of every competent tribunal, but I claim an equal right for myself and those with whom I am associated to express an opinion of the law as fearlessly as any other member of the House.

I do not recognise this House as exercising judicial functions. It makes laws. It does not interpret them. The proper place for the interpretation of laws is at the Royal Courts of Justice. That is the place where it will be decided what is legal and what not, and it is for that reason only that I have intervened.


I only rise to say I am very sorry my right hon. Friend the Member for Spen Valley is not here. He left the House a few minutes before eight, not realising for a moment that the hon. and learned Gentleman would be raising this matter on the Adjournment. I shall make it my business to draw his attention to the hon. and learned Gentleman's remarks and I only regret that he did not exercise the usual courtesy of advising him. If he had done so a few minutes before he rose my right hon. Friend would have been in his place to-night.


The hon. and learned Member who has just spoken said that he told me he was going to raise this matter this evening. True. He told me a few minutes before he began his speech. He says that he was unable to be present when the right hon. and learned Member for Spen Valley (Sir J. Simon) spoke. Perhaps the fact that he was not present on that occasion may account for some of his criticisms of a speech to which he did not listen. I might add for his information, that I did hear the speech. Although the hon. and learned Member did not hear it, perhaps on account of the call for necessary repose, a number of other Members of his party missed that speech because they left the House immediately the right hon. and learned Member for Spen Valley rose.

The hon. and learned Member says that it is unfortunate that the legal points which were discussed in that speech were raised by the right hon. and learned Member for Spen Valley, and he claimed a right, which nobody will challenge, to express a view of his own, which I gather does not agree with that expressed by my right hon. and learned friend. I confess that I do not agree with the view that it was an unfortunate matter to have raised in discussion. My own view, which again is only an individual one, is, that the speech of the right hon. and learned Member for Spen Valley was a signal contribution to the knowledge of the public with regard to the true facts surrounding the dispute upon which we are unhappily engaged, and that it was a great public service which was rendered by him in stating in clear and unequivocal language, on the authority which the right hon. and learned Member's experience and standing at the Bar entitled him to claim, what in his view was the law upon the subject.

The hon. and learned Member who has just spoken having said that it was unfortunate to discuss the legal point, repeatedly referred to myself for confirmation of his own views. Whether it was unfortunate to discuss the law or not, I am confident that it would be unfortunate for anybody holding the position which I hold at this moment, to attempt to lay down what I believe to be the law, with regard to the present controversy. That is a matter upon which it is my responsibility to advise His Majesty's Government. I do not think it would be useful from any point of view were I to state my views upon the matter now. Having said that, however, I wish to safeguard myself against being supposed to accept the views of the law which the hon. and learned Member has just expressed, and which he invited me to contradict or affirm.

I should like to tell him, since he referred to the right hon. and learned Member for Spen Valley's opinion, that he seems to have misunderstood the whole basis upon which that opinion proceeded, and to deal with it as if the right hon. and learned Member were discussing only the question of how far the fact that breaches of contract were involved, rendered the general strike illegal. No doubt the fact that the strike did involve in many cases breaches of contract, may have a very relevant bearing in considering the legality of the action taken; but it was not upon that ground, as I understood him, that my right hon. and learned Friend—and I listened carefully to his speech—mainly proceeded. The right hon. and learned Member expressed it as his deliberate opinion that a general strike which was not and could not be regarded as an industrial weapon, but as a conspiracy against the State, stood wholly outside the protection of the Trade Disputes Act, and the very Section to which the hon. and learned Member has just called attention, could have no application to what in my right hon. and learned Friend's view was a wholly illegal action.

I am not going to express my own view upon the matter. I have already explained that I do not think it would be in anybody's interest that I should do so in these circumstances and at this moment, but it is right that I should explain, lest the House does not realise it, or if anybody here now did not hear the speech, that the basis upon which the right hon. and learned Member for Spen Valley proceeded was that there was a wide gulf fixed between the ordinary industrial strike and the general strike: between the strike weapon used is a dispute between employer and employed, and the general strike used to put coercion upon the community at large. Whether or not my right hon. and learned Friend's views were well founded, that was the basis upon which they proceeded, and it is no answer to my right hon. and learned Friend's opinion to say that if this were a trade dispute and it came within the Trades Disputes Act, then the protection of that Act would lead to results different from those suggested by my right hon. and learned Friend.


I did not say that. I said that it was a matter to be decided by the Courts whether it was or was not within the Trade Disputes Act, and a matter which could not be decided in this House.


I think if my hon. and learned Friend had read the speech—


I have read it.


I think if my hon. and learned Friend will reread the speech, he will see that the right hon. and learned Member for Spen Valley was very careful, first of all, to state quite clearly the facts upon which he based his opinion, and these facts are facts which must be within the knowledge of every member of this House and, as far as I know, are wholly uncontroverted on either side. It is true that if civil or criminal proceedings were taken, the tribunal would have to judge the case on the evidence laid before it, but that does not prevent a lawyer of the distinction and experience of the right hon. and learned Member for Spen Valley from saying that, having considered all the facts, he is prepared to lay it down as his clear and considered opinion that this general strike does not come within the Trade Disputes Act but is, in fact, an illegal act against the State.

I am not putting my own imprimatur upon that. I am neither affirming nor differing from that view; but it is as well that it should be clearly understood. There is one further point which I think I ought to clear up at once, and that is an observation by the hon. and learned Member who has just sat down designed, apparently, to frighten those men who have refused to obey the strike order, by threatening them with loss of trade union benefits, and warning them that they cannot recover in a court of law.


Does the right hon. and learned Member suggest that I am trying to frighten them?




I think that is a very unfair suggestion. I simply stated, and it is correct, that under Section 4 of the Trade Union Act in no case is it possible to obtain benefits. I have no intention, and I do not think the Attorney-General thinks that I have any intention, of frightening anybody. We have had one statement of the law, but the whole law has not been stated to the House. The House would assume from the speech of the right hon. and learned Member for Spen Valley that as the law now stands a man can obtain benefit from his trade union. I have pointed out that under the Act of 1871, if the union is illegal at common law, he cannot obtain benefit. I have merely made that statement of the law, and it is extremely unfair on the part of the Attorney-General to suggest that I am attempting to frighten people.


I wonder whether he really thought when he made that statement that he had no idea of affecting the minds of those who might wish to remain at work? In order to remove the apprehension which the hon. and learned Member so unwittingly may have caused, I should like to say at once, first, that any court would restrain by injunction any attempt to expel such a member for disobeying an illegal order or deprive him from the benefits to which he is entitled, and, secondly, that there has been given by the Government an official, and absolute guarantee that no expulsion or deprivation of benefits will be permitted as a result of refusing to take part in the strike.

It is as well that everybody should know, first, that the courts are strong enough to restrain by injunction any attempt so to treat those who refuse to take part in the strike, and, secondly, that the Government has promised and intends to implement the promise to see that they are properly treated. I desire that misconception to be cleared away at once. Beyond that I do not think I can go to-night. I regret that the hon. and learned Member in putting before the House his view of the law did not inform the hon. and learned Member for Spen Valley (Sir J. Simon) of the course he intended to take. Which hon. and learned Member has the greater weight in the legal profession the House must form its own opinion. Who is more likely to be right the House must decide. I express no opinion. But since the two views have been expressed I am sorry that the hon. and learned Member opposite did not give the hon. and learned Member for Spen Valley the opportunity of defending the view he put forward. On that account and on that account only I have felt bound to intervene in this discussion, and haying said as much as I have I ask the House to excuse me from attempting to discuss to-day questions of law on which it may be my duty to give very important advice to His Majesty's Government.


I desire to raise the question of the publication of the "British Gazette," and I hope I shall not be accused of any discourtesy if I refer to the explanations given by the Chancellor of the Exchequer and the Solicitor-General this afternoon. The right hon. Member for Carnarvon Boroughs (Mr. Lloyd George) drew attention this afternoon to the fact that important resolutions passed by the Archbishops and Bishops of the Church of England had been forwarded for publication to the "British Gazette." The Chancellor of the Exchequer rose to answer the complaint made, and I was much surprised at the explanation. It seemed to me to be less ingenuous than ingenious. He seemed to play on the ignorance of the House as to the technical difficulties of inserting certain news items in a newspaper, and implying that because of these technical difficulties it was impossible for him to publish this resolution. I want to say most emphatically that there are no difficulties in the office of the "British Gazette" that made it impossible for the Chancellor of the Exchequer, who declared himself to-day as the editor, to publish the resolution from the Church of England as soon as he received it.

All that was required was that the Chancellor of the Exchequer as the editor of the "British Gazette" should edit the copy, if it required editing, and hand it over to the compositors to be composed. He did not suggest that there were no compositors either inside or outside, because they had sufficient men or printers in that particular office, and from my knowledge of what is going on inside, it is more likely to be outside the office of the "Morning Post" than inside, he had eight pages of matter and it was quite possible to get that article, that news item, for the next day's issue, or for the succeeding day's issue, had the editor, the Chancellor of the Exchequer, chosen to publish what was undoubtedly a resolution that would be construed more or less as favourable to a certain kind of settlement which evidently did not meet with the approval of the editor of the "British Gazette." I think it is rather misleading on the part of the editor of the "British Gazette" to say that owing to technical difficulties he could not secure the insertion of that particular news item. It does not stop there. The Solicitor-General has attempted to justify the suppression of anything that may possibly he favourable to the cause of the strikers. I am not saying anything about the dispute in general.

If the "British Gazette" is to be a newspaper for the information of the public, if its circulation is something near a million and possibly may reach a larger figure than that, then we have a right to expect, at a time like this, that the organ of the Government shall be open to the expression of any view that is sent in for publication provided it comes from an authentic source. And to say that the views of the archbishops and bishops of the Church of England are not of sufficient importance to be published or are of so much importance that they dare not publish them is to my mind a misuse of the power the Government has taken to communicate news and information to the country. The Solicitor-General with his acute legal mind assists the Chancellor of the Exchequer plus the editor of the "British Gazette," and openly boasts that this being Government organ is naturally going to back up the Government. Well and good, and so far as any leading article is concerned no one would complain if the Government expressed its views forcibly even though they may be biased views of the situation. But that is a different thing from the insertion of news only favourable to the cause of the Government, and the suppression of news that is favourable to the other side.


Why did you suppress the newspapers?


So far as I am concerned, and so far as my connection with the Press is concerned, I have never held the view that we ought to stop the publication of anything that a newspaper seeks to publish. Therefore, that comment cannot be construed as making me appear to be inconsistent in complaining that the Government, in expressing biased opinions or in suppressing news vital to a just and impartial consideration of the present situation, is unfair. The Solicitor-General said, "We do not pretend that the 'British Gazette' is impartial." He said, "It is a Government organ, and, therefore, must be for the Government and speaking for the Government all the time." I do not complain of that, but at least, if it professes to be a newspaper, no self-respecting editor would attempt to suppress what is undoubtedly valuable information, in order to secure an advantage for his own side. I therefore, beg to offer my protest against the suppression of this particular resolution, and to express the hope that the editor will understand that in future the House of Commons expects him; whatever may be his conception of the duties of an editor, at least to preserve an even and impartial mind in the treatment of the news.

Question, "That this House do now adjourn," put, and agreed to.

Adjourned accordingly at Thirteen Minutes before Nine o'Clock.