SECOND READING. (Hansard, 1 May 1871)

THE EARL OF MORLEY

, in moving that the Trades Unions Bill be now read a second time, said, that he must begin by explaining that this Bill and the Criminal Law Amendment (Violence, Threats, &c.) Bill originally formed a single measure, which, in deference to the representations of various parties whose interests were affected, was divided 1912 into two Bills. They would therefore be better understood by being considered together, and it was proposed that they should pass their different stages pari passu. He must bespeak the indulgence of the House, especially of noble and learned Lords, in dealing with questions of great delicacy and legal difficulty while he explained the position of trades unions and trade combinations in relation to the existing law. Before 1824 all trade combinations, whatever their purpose, were violations of the Combination Statutes, which were based on the principle that the State should fix the rate at which labour should be sold. As early as 1350 that principle was laid down in the celebrated Statute of Labourers, and again, in the reign of Queen Elizabeth, in the Statute of Apprentices. Subsequently various statutes were passed prohibiting combinations for whatever purpose, culminating in the Act of 1800, which prohibited all trade combinations, and forbade any workman or master to induce his fellows, by any means however gentle, to join him in any particular course of action relating to their business. So far as the common law was concerned, Mr. Justice Grose, in 1796, said— In many cases an agreement to do a certain thing has been considered as the subject of an indictment for a conspiracy, though the same act, if done separately by each individual, without agreement among themselves, will not have been illegal. As in the case of journeymen conspiring to raise their wages, each may insist on raising his wages if he can; but if several meet for the same purpose it is illegal, and the parties may be indicted for a conspiracy. In 1824, an inquiry before a Parliamentary Committee having shown the injustice and inequality of the state of the law, all the combination statutes were repealed, and a statute was passed legalizing all trade combinations, irrespective of the objects which they had in view; but in the following year an immense number of strikes occurred throughout the country, many of them accompanied with violence to person and property. A panic was the result; the Act of the previous year was repealed, and a new Act substituted for it. But in reviving the old disabilities it was provided that combinations, intended merely to regulate wages and the hours of work, should be exempted from the penalties attaching to all other trade combinations. This enactment governed the question of 1913 trades unions down to the present day, and all unions, except those thus exempted, were illegal at common law, their members being liable to indictment for conspiracy in restraint of trade. But not a single trades union, in point of fact, confined its objects to the regulation of wages and hours of labour—so that the distinction drawn by the Act of 1825 was wholly futile. In the case of "Hilton v. Eckersley," in which some masters endeavoured to enforce a bond against one of their fellows for breach of an agreement, the Court ruled that the bond, if not altogether illegal and punishable, was a contract by which the parties agreed to carry on their trade not freely, as they ought to do, but in conformity with the will of others, which was contrary to public policy. Moreover, in two important cases, under the Friendly Societies Act, it had been decided that the agreements on which trades combinations were based were unlawful, one of their objects being directly or indirectly in restraint of trade, and that they therefore could not take advantage of the 44th section of that Act. As the result of the disabilities imposed by this legislation, it became impossible for unions to sue their members or officers, or to sue their bankers for money deposited with them; neither could they enforce any agreement they might have entered into with their landlords in respect of the premises they occupied, nor take criminal proceedings against those who might have defrauded them. The law of partnership, moreover, had some bearing upon the subject, for a trade union could not sue its treasurer if he was also a member of the society—which he, in fact, always was—as he became to that extent a partner in the concern. The 44th section of the Friendly Societies Act gave uncertificated societies, for purposes not unlawful, an advantage in this respect, enabling them to prosecute their treasurers or servants who embezzled their funds; but the decisions mentioned above prevented trades unions availing themselves of it. The result was that an Act, which was known as the Recorder's Act, was passed, amending the law of partnership, so as to make it possible for a partnership to prosecute its officers, even if members of the partnership, for embezzling the common property; but with regard to prosecuting summarily 1914 officers who embezzled their funds, it required the consent of the accused, and though this might sometimes be given, in the hope of the punishment being lighter than if he were indicted, there was no certainty that such consent would be given. In consideration of this difficulty, and of the fact that this Act gave no facilities for the recovery of stolen books and property, the Home Secretary introduced a measure two years ago which gave trades unions the advantages given to uncertificated societies by the 44th section of the Friendly Societies Act. This measure, however, was a temporary one, being only passed for a year, though it had been renewed for another 12 months. Under the present law all trades unions, whatever they might be in theory, were, in fact, conspiracies in restraint of trade, the agreements on which they were based were unlawful, and they were incapable of suing civilly, although there were special provisions to enable them to prosecute criminally under certain circumstances. But that law was both doubtful and unjust, and it had become both politic and just to amend it. Trades unions, no doubt, were placed under the restraint of the law; but the law had proved wholly inoperative, it had entirely failed to check the growth of these societies, whether they were beneficial or injurious, and this was a fact which no Legislature could ignore. As had been remarked by a noble Earl (the Earl of Derby), whose opinion would have weight with their Lordships— The question whether trade societies are desirable or not is a question which, in our day, is idle to put. They exist; they are a fact; they never were more strongly supported than now; and they are not likely in our time to disappear. No one can reasonably dispute the right of men working together in one trade to combine in joint action for matters connected with that trade. It is legal, it is right; and that it is their interest on the whole I do not see that anyone can doubt who has considered the matter practically. At any rate, this latter point the parties interested have settled for themselves. They do it—they have a right to do it; and it is for experience and for the future to show how far and to what limits they have done it wisely. It was unnecessary that he should adduce any proof, or produce any statistics to show how vast were the resources of these societies, or how wide the extent of their ramifications. But he would mention, by way of illustration, that be- 1915 tween 1858 and 1867 the members of the Engineers' Society increased from 15,000 to 33,000, and those of the Ironworkers' Society from 6,630 to 10,829. It was surely unwise to leave these organizations without the pale of the law. Was it not better to give them legal status and protection; to relieve them from the taint of illegality and consequent secrecy; and by encouraging them to give publicity to their rules and transactions, to obtain the best possible securities for their good administration? If it were once admitted that workmen were justified in combining to get the best wages they could for their labour, how could they be restricted to the objects sanctioned by the Act of 1825? As to the relation between the employer and the employed, it was true that every employer was not necessarily an oppressor; but it might be also assumed that every employer was not necessarily a philanthropist; and the workman had, therefore, a right to a position in which he could cope with him, which, single-handed, it was quite impossible for him to do. There had been many things done by these trades unions which, on economical and social grounds, could not be defended; but he regretted that the feeling against them should be too much one of distrust, if not of hostility. Though the recent disclosures of the transactions of trades unions at Sheffield and Manchester had naturally had a great effect upon the public mind, it must be remembered that these were isolated instances, and that, as was clearly shown by the Commissioners, these bodies had confined themselves more closely to legitimate objects since the repeal of the old combination laws than before it. It was needless to inquire how far trades unions were economically beneficial and how far they had affected trade. They existed, and it was much better that they should be recognized by the law. The Commissioners had pointed out that, with regard to driving trade out of the country, strikes were a natural consequence of the decline of trade, and that so many causes influenced the distribution and prosperity of trade, that it was extremely difficult to trace to any particular cause the vast effect which had been attributed to these organizations. Some of their rules, doubtless, were oppressive and some were economically false in principle; but it was 1916 difficult to draw the line between what was morally wrong and what was legally criminal; and, as many of their objects were attained by a petty social tyranny, of which the law could not take cognizance, the correction of these errors must be left to the growing intelligence and the experience of the workmen rather than be made the object of stringent repressive legislation. The benefits derived by the working classes from these trades combinations were very great. They were benefit societies in the largest sense of the word, having sick, burial, and, in more than one instance, superannuation funds. They were able, also, in many cases, to regulate the distribution of labour, so as to transport it from places where it was in excess to places where it was deficient. This was, unquestionably, a most useful and admirable office for a trade union to fulfil. Mr. Applegarth, in his evidence before the Commission, said— When the monthly returns on or about the 6th of each month come into my hands, I run down the reports to see where men are wanted, and where men are out of employment. I then take the earliest opportunity possible of writing to the secretaries in the towns where men are out of employment to tell them where men are wanted, and we make a practice of paying the railway or steamboat fare of the men that are out of employment when we send to the places where men are wanted. There was, moreover, in most unions a great disparity between the amount expended in strikes and disputes, and those used for benefit purposes. For instance, in 10 years the Engineers spent £459,000 in benefits and £26,000, or 6 per cent, on disputes; while the Ironworkers spent £210,000 in benefits, and £5,300, or 2½ per cent, on disputes. Having said thus much in reference to the existing state of the law and the general character of these trades unions, he would now draw their Lordships' attention to the Bills before them. Considering the vast network of these societies, their large funds, their capacities for good as well as for evil, and the impossibility of discriminating between what was mischievous and what was beneficial, the only line of demarcation which Parliament could draw was between that which was criminal and that which was not so. The principle on which the first Bill before their Lordships was based was that these societies should be released from all criminal liabilities so far 1917 as their objects were not unlawful, that protection should be given to their property, and that certain qualified rights resembling those enjoyed by corporations should be extended to them, the law in all other respects taking up an attitude of neutrality towards them. As to the doctrine of restraint of trade, which was set aside by the Bill, he would quote the opinions of two learned Judges. Mr. Justice Hannen's words were these— By the expression that a thing is contrary to public policy I understand that it is meant that it is opposed to the welfare of the community at large. I can see that the maintenance of strikes may be against the interests of employers, because they may be forced to yield at their own expense a large share of profit or other advantage to the employed; but I have no means of judicially determining that this is contrary to the interest of the whole community, and I think that in deciding that it is, and therefore that any act done in its furtherance is illegal, we should be basing our judgment, not on recognized legal principles, but on the opinion of one of the contending schools of political economists. Lord Campbell, in 1855, remarked on the same subject— I enter upon such considerations with much reluctance and with great apprehension, when I think how different generations of Judges and different Judges of the same generation have differed in questions of political economy and other topics connected with the adjudication of such cases. … I should have been much more pleased if a clear rule had been expressly laid down to me by the Legislature. The Commissioners, in their Report, unanimously recommended that the doctrine of restraint of trade should be repealed, but the majority of them wished to make certain exceptions, the first being the exception of all combinations which involved breach of contract; but, as pointed out by Lord Elcho, this point was amply protected by the Masters and Servants Act. A second exception related to all strikes directed against particular individuals; but surely this would be an arbitrary interference with the right of combination, and cases might occur where such strikes would be justifiable:—such, for instance, as the case of an inefficient foreman of a mine, whose incapacity might endanger the lives of hundreds of his fellow-workmen. Under those circumstances, it had been thought right to do away altogether with the restraint of trade doctrine, and to declare that a trade union shall not be, merely on that ground, criminal, so as to render its members 1918 liable to prosecution, nor unlawful so as to render void or voidable any agreement or trust. The Bill provided that all primary contracts made by trades unions should not be enforcible, but that the secondary contracts should be enforcible. The result of that would be that no legal proceedings could be instituted to enforce any agreement between the members as to the conditions on which they will work, nor to compel the payment of subscriptions, nor for the application of the funds, or to discharge fines imposed upon any person by Courts of Justice; but, on the other hand, the secretary could sue the society for his salary, or the society their banker in respect of their funds deposited with him. None of the agreements he had mentioned as unenforcible were constituted unlawful, but they were simply not enforcible by law. Indeed, it was not the wish of the trades unions to be put completely in the position of Friendly Societies. Their objects, rights, and liability were mostly, as remarked by the minority of the Commissioners, such as Courts of Law should neither enforce, modify, nor annul, but such as should rest on consent. With regard to the registration of trades unions, the Commissioners were unanimous as to the desirability of the rules of these societies having the guarantee of publicity; and though compulsion in this matter would be impracticable, the question arose whether, by the offer of certain privileges, by giving certain rights and removing certain disabilities, they might not be induced to come forward and register themselves. The Commissioners were unanimous in recommending some system of registration, but they differed most radically as to the conditions they would impose. The minority of the Commissioners were for laying down as the sole condition of registration that the unions did not contemplate any criminal purpose; but the majority were for refusing registration to any rules which restricted the number of apprentices, the use of machinery, piecework, and the employment of non-unionists or of foreign labour, or which sanctioned agreements with other unions. It was also suggested that there should be two classes of unions—the first class separating their benefit and trade accounts, while the second class kept the two accounts together. Such a separation of 1919 accounts would strike at the root of many societies, though not all of them, and the imposition of such conditions would virtually deter every union from registering. As to the division between benefit and trade funds, it was impossible to distinguish between funds used for benefit purposes and those devoted to other objects, the funds being applied at one time to one purpose and at another time to another; and it was difficult to distinguish whether a payment was made to a man out of work in consequence of a strike or for other reasons. The Bill rendered registration optional, the only proviso being that the purposes contemplated were not of a criminal character; and it enforced the deposit of the rules, and, what was more important, of the accounts. The advantages which registration would confer were that it gave the societies quasi-corporate rights, and also a summary remedy against embezzling officers—a privilege temporarily enjoyed under the Act of 1869. Societies which did not register would have the power of prosecuting fraudulent officers under the Recorder's Act. The Bill provided that all offences and penalties under the Bill may be prosecuted and recovered in the manner directed by the Summary Jurisdiction Acts; with an appeal to the Courts of Quarter Sessions. Turning now to the other Bill—the Criminal Law Amendment (Violence, Threats, &c.) Bill—he need not remark that all unionists were subject to the general law of the land, but there were certain offences specified from time to time by statute which, though not criminal in themselves, became so if there was the ulterior intention of coercing any person to do something in restraint of trade. The principal Act on this point was the Statute of George IV., as amended by an Act of 1859. The interpretations put upon the offences which it mentioned—violence to person or property, threats, molestation, and intimidation had, however, been so fluctuating that it was necessary to define them more clearly—for when Judges differed, justices of the peace, without the advantage of a legal education, could not be expected to solve the problem. The Bill defined "threats" to be when any person threatens or intimidates any other in such a manner as would authorize a magistrate to bind over the person so threatening or in- 1920 timidating to keep the peace—that is, threats of violence to the person himself, his wife or children, or threat to burn his house down. "Molestation" included the persistently following any person from place to place, hiding his tools, or watching or besetting the place where he resides or works—in fact, those acts which were generally understood by the terms "dogging," "rattening," and "picketing." And, moreover, these acts must be done with the intention of restraining another person, be he master or workman, from freely disposing of his capital or his labour, in any of the different modes defined in the Bill. It had been objected that this clause created a new offence of "picketing," for Mr. Baron Bramwell remarked, in the case of the tailors' strike, that if picketing could be so carried on as to excite no reasonable alarm, and as not to coerce or annoy, it would be perfectly lawful. Now, it was true that the best unions gave their pickets instructions not to violate the law; but in view of the irritation excited by seeing men go to work at a place where others had struck, it would be taking too charitable a view of human nature to suppose that the methods of persuasion made use of by pickets would be invariably of a gentle character. Consequently, the Bill prohibited all pickets, composed of three or more persons, in the belief that all legal and proper purposes of a picket, and there are such purposes, could be attained by one or two watchers, and that the employment of a greater number implied that something more than persuasion was to be attempted. As in the Trades Unions Bill the proceedings under this Bill would be in the manner directed by the Summary Jurisdiction Acts, with an appeal to the Courts of Quarter Sessions. The complaint that this was special legislation was scarcely a reasonable one, for if special legislation was necessarily unjust, how could the Truck Acts, the Mining Act, and the Merchant Shipping Act be justified? If acts were likely to occur which would be injurious to the public, though not in other respects and under other circumstances criminal, the law was entitled to check them as far as possible, and though unions, he believed, had done a great deal of good to working men, it must be recollected that as men had a right to combine, so also 1921 they had a right to stand aloof from combinations. He must apologize for trespassing so long on their Lordships' attention, but the subject was so important, and the interests involved so large, that he had felt it his duty to explain at some length the legislation which was proposed. It was his earnest hope that by bringing the unions within the pale of the law, by endeavouring to give publicity to their rules, and by bringing all their good points into the light of day, Parliament would do much towards the abolition of that feeling of mistrust and antagonism which was said to exist, and to some extent, doubtless, did exist, between labour and capital. As the majority of the Commissioners had observed in their Report— Whether the circumstance is to be regretted or not, the habitual code of sentiment which prevailed between employers and workmen in times when the former were regarded both by law and usage as the governing class is row greatly relaxed and cannot be revived. A substitute has now to be found for it, arising from feelings of equity and enlightened self-interest and mutual forbearance, which should exist between contracting parties who can best promote their several chances of advantage by aiding and accommodating each other.