SECOND READING. (Hansard, 26 July 1875)

THE LORD CHANCELLOR
, in moving that the Bill be now read the second time, said, he would briefly explain the purpose of this Bill, and also that of the Employers and Workmen Bill, which stood next on the Paper. The latter Bill was confined to civil remedies for breaches of contract between employers and workmen, while the other, while it provided that no combination should be deemed criminal if the act proposed to be done would not be criminal if done by one person declared certain breaches of contract, though done by one person to be criminally punishable, and others involving injury to persons and property to be also punishable. The Employers and Workmen Bill, he might add, was intended to replace the Master and Servants Act of 1867, sometimes called Lord Elcho's Act, while the other measure was intended to replace the Criminal Law Amendment Act of 1871. As far back as 1350 there was an Act—the 23rd of Edward III,—called the Statute 33 of Labourers. That Statute, after reciting that a great part of the people, especially workmen and servants, had of late died of the pestilence, and that many, seeing the necessity of masters and the great scarcity of servants, would not serve unless they received excessive wages, and that some would rather beg in idleness than by labour get their livings, proceeded to enact that all agricultural labourers should be bound to work for the wages usually paid in the 20th year of Edward the Third's reign (1347) or the five or six years before, and subjected them to imprisonment for disobedience. From that period up to 1867 there had been almost incessant legislation on the subject, which was directed to two separate objects—the making service compulsory, laying down the rate of wages to be paid, and the imposing of criminal penalties on workmen, but not upon employers, who were left to be dealt with by means of civil remedies only. The first of those objects—compulsory service—was given up in 1824, but the system of criminal punishment continued until 1867. The Act passed in that year, following the Report of a Committee of which Lord Elcho was Chairman, placed for the first time employers and workmen on the same footing; but the misfortune was that it left certain classes of breaches of contract to be punished either civilly or criminally at the option of the Justices. The 14th section of the Act was as follows:— When on the hearing of an information or complaint under this Act it appears to the justices, magistrate, or sheriff that any injury inflicted on the person or property of the party complaining, or the misconduct, misdemeanour, or ill-treatment complained of, has been of an aggravated character, and that such injury, misconduct, misdemeanour, or ill-treatment has not arisen or been committed in the bonâ fide exercise of a legal right existing or bonâ fide and reasonably supposed to exist, and further, that any pecuniary compensation or other remedy by this Act provided will not meet the circumstances of the case, then the justices, magistrate, or sheriff may by warrant commit the party complained against to the common gaol or House of Correction, there to be (in the discretion of the justices, magistrate, or sheriff) imprisoned, with or without hard labour, for any term not exceeding three months. Thus, there might be conflicting decisions in the very same county, for what in the eye of one magistrate might appear to be an aggravated offence, might not appear so to another. The result 34 was that the present Government, on coming into office, found great and general dissatisfaction existing on the subject, and that dissatisfaction was aggravated by further complaints which were made as to the working of the Criminal Law Amendment Act. They, therefore, thought it necessary to obtain some information as to the working of those two measures, and a Commission was appointed, on which sat a noble Lord whom he saw near him, the Lord Chief Justice of England, the Recorder of London, Sir Montagu Smith—one of the official Members of the Judicial Committee of the Privy Council—Mr. Beuverie, Mr. Macdonald, and others. That Commission obtained information of great value, and presented a very elaborate and able Report, and upon that Report Her Majesty's Government were decided to act. The Government decided to draw a broad line of demarcation between civil and criminal breaches of contract, and to leave that line to be determined, not by the tribunal, but on the face of the Act of Parliament itself. The Employers and Workmen Bill dealt with civil breaches of contract alone, laying down the general rule—apart from certain exceptions which came under the other Bill—that breach of contract which resulted in damages should be treated as giving rise to a civil remedy, and not as constituting a crime. It provided that wherever the damage from a breach of contract did not exceed £10 it might be dealt with by the petty sessions, and where it exceeded that amount must be dealt with in the County Court; that both as to the petty sessions and the County Court there was to be no imprisonment whatever, except that kind of imprisonment which resulted occasionally in County Courts where a debt had not been paid by a person against whom a judgment had gone, and as to whom the Judge came to the conclusion that he had the means of paying, but did not choose to pay. In those cases, and those cases only, the petty sessions or the County Court was to be allowed to commit the defendant to prison, not as a criminal, but as a debtor, subject to the checks and safeguards existing in regard to ordinary cases of debt in the County Court. The Bill also authorized the petty sessions or the County Court, as the case might be, to adjust a set-off on the side 35 either of the workman or of the employer; it empowered the Court to rescind the contract under certain circumstances if it thought fit; and it provided that, where the Court might otherwise award damages, it might, if the defendant was willing to give sureties for the performance of the remainder of his contract, accept such sureties' security with the consent of the plaintiff. As introduced into the House of Commons the Bill contained a further provision, which he regretted had been omitted—namely, it enabled a person summoned for a breach of contract, and against whom damages might be awarded, to offer not merely the security of some other person, but his own security, by which means if he did not perform his undertaking to fulfil his contract, he might be imprisoned for a limited time. That would have enabled a workman who was not in a position to obtain a surety to give a security which might be accepted. But it having been represented that that provision was not acceptable to the workmen, who looked upon it as a revival of imprisonment in another form, the Government had thought it better to omit it. The breaches of contract which were to be made criminal in future were included in the Conspiracy and Protection to Property Bill. That Bill dealt first with questions affecting the supply of gas and water. It provided that where a person employed by a municipal authority or a company wilfully and maliciously broke a contract of service, knowing or having reasonable cause to believe that the probable consequence of his doing so would be to deprive the public of gas or water, he should be liable, on conviction, to a penalty not exceeding £20 or to imprisonment for a period not exceeding three months, with or without hard labour. They held that a person thus acting not only committed a breach of contract incurring civil damages, but a criminal offence, for which he ought to be criminally responsible. Some criticism had been passed on that clause elsewhere, it being objected that it dealt only with persons in the service of a company or a municipal authority supplying gas or water, and not with all persons whomsoever—not, for example, with the Company or the municipal body itself, which might be in default, or with the coal merchant, who might not fulfil 36 his contract to supply coals for making the gas. The answer to that criticism seemed to be extremely simple. In the first place, to proceed against a Company or a municipal body criminally was not an easy matter; it was not practicable. In the next place, they had an ample security in the case of a municipal authority or a Company for the performance of its duty, because to plunge a town in darkness or deprive it of its supply of water would be fatal to the continuance in office of its office-bearers, and also to its trading prosperity. So, again, with the outside merchant contracting to supply coals. The Company could easily contract with whom it pleased, under such penalties as it pleased, and no penalty was necessary for the case of the coal merchant. The conclusive justification for the form in which the clause stood was that the servants of Gas and Water Companies were persons in a fiduciary position. The Companies must employ servants, and those servants again must be trusted; and a breach committed by them of a contract of that kind, seriously damaging the public interests, was a wholly different species of act from the breach of contract, which might be committed, for example, by a man who was bound to supply coals. Then the next clause, Clause 5, proceeded exactly on the same principle as Clause 4, the only difference being that it contemplated a breach of contract, whether by a person serving or by a person hiring, which involved serious injury to life, personal injury, or which exposed valuable property to destruction or serious injury. There, again, a breach of contract having those consequences was treated differently from a mere civil contract. He now came to the question of conspiracy. The Criminal Law Amendment Act of 1871 repealed all the old trade combination laws as they were called, and provided that certain specific things should be offences; and as to conspiracy, it provided that— no person shall be liable to any punishment for doing or conspiring to do any act on the ground that such act restrains or tends to restrain the free course of trade, unless such act is one of the acts here in before specified in this section, and is done with the object of coercing as hereinbefore mentioned. It was supposed by all the parties to that Act that it would have eliminated 37 the element of trade strikes; but it did not do that, and convictions had occurred which were somewhat unexpected. They had raised the idea that the code of Criminal Law which had been settled by the Act of 1871 had been stretched and enlarged by means of the application of the Common Law as to conspiracy. He should have been very glad, if it had been possible, to reduce to a code the whole law of conspiracy, and not merely the law of conspiracy as affecting trade disputes or disputes between masters and workmen. But that, he believed, would always be found to be a very hopeless task; and, therefore, what the Government had done was this—they had taken the question of conspiracy as affecting trade disputes, and dealt with it in the manner expressed in the third section, which provided that an agreement or combination between two or more persons to do any act in furtherance of a trade dispute between employers and workmen should not be indictable as a conspiracy if the act was not punishable when done by one person. There was no doubt that the clause on this point was adapted to the end in view. The only objection to it was that they were said to be dealing, not with the general law of conspiracy, but only with that affecting trade disputes between employers and workmen. This was quite true, and the reason was, that while he believed it would be hopeless to reduce to a code the whole law of conspiracy, it was quite possible, taking a particular area of acts, to say what should be a crime committed by one person, irrespective of any acts of conspiracy, and then, knowing the punishment affixed to individual acts, it was open to Parliament to say—"We will not sanction any higher punishment, even when these acts are committed by more than one person." This was what had been done here. A particular punishment had been assigned to individual acts, and then the clause prevented the general law of conspiracy from enlarging the criminal character of those particular acts. The only other question in the Bill requiring notice was one of great importance—the question of violence or molestation. The 6th George IV., the Act of 1826, abolished the Combination Laws, and made violence to person or property, or threats, or intimidation, or molestation or obstruction with 38 a view to interfere with masters or servants, a criminal offence. The first impression was that these forbidden acts were physical and mechanical acts; but by construction they were held to include the act of persuading in a peaceable manner. Accordingly, in order to meet this objection, the 22nd Victoria was passed, which provided that an endeavour to persuade in a peaceable manner should not be deemed molestation or obstruction. Still, doubts arose upon the construction of the Act, and then came the Criminal Law Amendment Act of 1871, which repealed both the previous enactments, and substituted other acts as criminal offences. Great dissatisfaction, however, was felt with the working of the Act of 1871 because the decisions upon it were not altogether uniform. The Recorder's charge in what was known as the Cabinet Makers' Case embodied the law upon the subject. In the course of his charge the learned Recorder said— The question you will have to ask yourselves is whether the evidence shows that the defendants were guilty of obstructing and rendering difficult of access the prosecutor's place of business, or whether anything which they did was calculated to deter or intimidate those who were passing to and fro, or whether there was an exhibition of force calculated to produce fear in the minds of ordinary men, or whether the defendants or any of them combined for that purpose. If you think that, it seems to me, then it will be your duty to find a true bill; but if you think their conduct may he accounted for by a desire to ascertain who were the persons working there, or peaceably to persuade them or any others who were proposing to work there to join their fellow-workmen, who were contending, whether rightly or wrongly, for the interests of the general body, it seems to me that there is no evidence sufficient to establish the charge that is here made. This expression of the law in the Recorder's charge appeared to the Home Secretary to be exactly the intention and scope of the Act of 1871, and, so far as he was concerned, his right hon. Friend would have been content to trust that application of the Act in future cases. The working men, too, would, he believed, have been satisfied with this construction of the Act. The House of Commons thought, however, that it was not desirable to leave the question open to any doubt whatever, and words were accordingly introduced into the present Bill in order that future rulings in similar cases should be placed on the 39 same footing as in the case tried by the Recorder. After anxious consideration, and with valuable assistance in the House of Commons, the Home Secretary had endeavoured to frame a clause which should free the matter from future doubt. It was an advantage possessed by their Lordships that they were able to take a more cool and critical survey of such a clause than was possible in the other House, and they were sometimes able to suggest a better mode of expressing the same ideas. The Home Secretary had anxiously considered the clause as it stood, and the Government were now ready to make any alteration in its wording which would meet just criticisms upon it. Thus, it was objected that, in the early part of the clause, power would be given to one person to proceed for violence used to another person. If this were the effect of the clause, as he believed it was, it went further than the Criminal Law Amendment Act of 1871, which carefully connected the person intimidated with the person who complained of the intimidation. Another objection was taken to the part of the clause which said that the threats or intimidation must be "in such manner as would justify a justice of the peace in binding over the person so threatening or intimidating to keep the peace." Some criminal lawyers had held that it would be impossible to frame an indictment upon these words, because it was impossible to say that any particular Justice would feel himself, upon certain evidence, justified in binding the persons over to keep the peace. Further, there was this somewhat unfortunate provision—that the first part of the clause spoke of something being done to compel some other person "to abstain from doing or to do any act which such other person has a legal right to do or abstain from doing," while later on the offence was defined as being "with a view seriously to annoy or intimidate." The object in view in the first part of the clause was, therefore, different from the object in view in the second part of the clause. The Government proposed in Committee to amend the clause in those respects. The noble and learned Lord then moved the second reading of the Bill.

§ LORD WINMARLEIGH
, having been a Member of the Royal Commission to which the subject of the Labour Laws was committed, wished to take this opportunity of saying a few words. As his noble and learned Friend had remarked, that Commission was composed of men of all parties. The labouring classes were well represented upon it—and if he might offer a criticism on its composition it would be that no great employers of labour were members of it. This placed him, owing to his connection with a large manufacturing county, in a somewhat invidious position with reference to the line he took in examining witnesses. Whatever differences of opinion there might have been, he might say that every Member of that Commission was actuated by a desire to render the laws affecting employers and employed as equal and as impartial as the nature of the circumstances would admit. When, however, they came to investigate the subject, they found themselves involved in a difficulty which might lay them open to a charge of class legislation. He believed it was in great part the impossibility of placing the employers and the employed on an equal footing that rendered it necessary in former times that some other than the civil law should be applied to one portion of the subject—namely, breaches of contract. He would exemplify what he meant by a case or two which came before the Commissioners. Employers being men of capital, civil actions could be brought against them, and damages easily recovered, but this was not the case in regard to workmen. In the iron trade there were several processes which required constant attention, and to which attention could not be secured except under a contract for a week or a fortnight. One of the gentlemen examined before the Commission gave an instance where 12 or 13 of his men, having broken their contract of this nature, threw the whole of his establishment almost out of work. He was able to get redress from three only of the workmen, but the damages awarded to him were as nothing compared with the loss he sustained. In another case an iron manufacturer had a blast furnace in charge of three men. When the iron was in a liquid state, these men suddenly quitted their posts because their 41 employer would not consent to certain terms they proposed. The consequence was that the iron got cold; and as it was impossible to melt the iron again unless the furnace was taken down, this had to be done at a cost of £2,000. Their Lordships would see that it was impossible to recover damages of such amounts from the workmen, who had no means of raising such sums. It was said that the 5th clause in the present Bill would give a remedy in such cases, but he doubted this, as it would be very difficult in all cases to prove that the offence had been committed "wilfully, maliciously, and knowingly." Under the 14th clause of the Master and Servant Act a remedy was provided in the Criminal Law. He agreed, however, that that clause ought at once to be repealed—it was an inconvenient and ill-drawn clause, and did great injustice to those who came under its operation; and he was also of opinion that Her Majesty's Government had done right in dividing the subject into two classes. From the first he felt the difficulty of dealing with the question of conspiracy, and he was much obliged for the information the noble and learned Lord had just given the House respecting it. With regard to intimidation, the Government had taken the right course. If the Bill should do away with the heart-burnings which had been occasioned in former years among the working classes, and if it should be followed by greatly conciliating the feelings of the employer and the employed, he thought that all classes of the community would have grateful recollections of the measure now brought forward. He suggested, however, that acts committed knowingly should be separated from those committed maliciously and wilfully, and the offenders tried, not by a summary proceeding, but by a jury.

§ LORD ABERDARE
said, that having taken part in former legislation on this subject, he begged permission to say a few words on the measure before their Lordships. The Master and Servant Act was no doubt a great step in advance, and under this Bill the same law would continue to apply in cases similar to the gas case. He was, however, content to take the Bill in its present form, but he did not think that under it the danger of agitation was altogether removed. He recognized in it that pro- 42 gress in legislation upon the subject as appeared to give satisfaction to the great body of the working classes.