Clause 3:— (Hansard, 12 December 1906)

*Lord BALFOUR of BURLEIGH
moved to omit the words "induces some other person to break a contract of employment, or that it," so as to make the clause read— An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it is an interference with the trade, business, or employment of some other person, or with the right of some other person, to dispose of his capital or his labour as he wills. As it stood, he said, the Bill contained, in his judgment, one of the most astounding provisions ever suggested to Parliament. The definition clause made a very serious alteration in the law. It I defined a trade dispute as— any dispute which is connected with the employment or non-employment, or the terms of employment, or with the conditions of labour of any person. Therefore, if this clause passed as it stood, it would be applicable to anyone 294 who interfered with any man's service. It would apply to a farm servant, a domestic servant, the police, civil servants, the post-office servants, or railway servants. The effect would be that any one who endeavoured to induce anyone of such persons to break his contract would not have to pay the penalty. He thought this was neither a just nor a wise provision, and he could not see that it was necessary for the purposes of the Bill. On the Second Reading of the Bill the Lord Chancellor gave two instances of contracts which he thought it was reasonable should be broken without a penalty to those who induced others to break them. One was a case in which a firm of employers had been guilty of what was practically a fraud. The other was the case of some Irish labourers being brought to this country without having been told that there was a strike in progress in the place where they were to work. But such a contract as that must have been made, if not by fraud, at any rate by concealment of a material fact. If the clause were limited to permission to people to break contracts of that kind he should have nothing to say; but a contract made in full knowledge between two adult men, not contrary to public policy nor obtained by fraud, was and ought to be regarded as sacred and absolutely binding, and there could be no excuse for allowing people engaged in a trade dispute to persuade others to break their contracts without a penalty. He admitted that he did not believe this would often be done for he believed the managers of trade unions were honourable men; but such things might be done in the heat engendered by a strike. He could not see the slightest justification for the proposal. In a conversation he had with the Lord Chancellor after the Second Reading of the Bill, he understood the noble and learned Lord to say that there was, at any rate, colourable authority for this proposal in the Report of the Royal Commission on Trade Disputes; but as he read that Report it told exactly the opposite way. In paragraph 64 of the Report he found these words— We think that Allen v. Flood, 1898, A.C.I, authoritatively showed that a strike was not illegal, and that it follows as a corollary that 295 to persuade to strike, i.e., to desist from working, apart from breach of contract, is not illegal. Both in that paragraph and in the summary of the Recommendations the words "apart from breach of contract" were in italics so that they might be specially emphasised. The inference from that was quite distinct that contracts should be regarded as sacred; and he suggested that unless something more definite and more powerful than the two instances given by the Lord Chancellor were adduced, they should not pass what seemed to him—he could use no milder term—words which would be an absolute disgrace to the Statute-book of any civilised country.

§ THE LORD CHANCELLOR
I am sorry the noble Lord takes such a severe view of our proposal. Let me just point out what the clause actually proposes. What it says is this, that an act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment. That is the effect. All the time I was at the Bar I lived in company with the case of "Lumley v. Gye." It was my companion throughout my professional life. I always thought it was bad law, and so did a great number of my confréres and many occupants of the Bench; but I believe it has received partial confirmation in a recent case in your Lordships' House. In the case of "Lumley v. Gye" it was laid down for the first time that a man was liable in an action if he induced some other person to break his contract, not if he broke his contract himself. I will give an illustration. There was a strike going on. It was certain that other employers would stand by the employer affected and refuse to employ the men on strike; so the workmen would, I will not say in retaliation, but in order to carry on warfare of a certain kind, do their best to prevent other persons from taking their place. Without knowing anything about the strike—I refer to the strike in Whitehaven—a number of Irish workmen were 296 brought over by the employer to work in the place where the strike was going on—

*THE EARL OF LONSDALE
said that that was not so. The noble and learned Lord was wrong. There had not been any introduction of Irish workmen, brought over by the employers, at Whitehaven.

§ THE LORD CHANCELLOR
My information is that they came over without knowing it. I am not, however, concerned with the merits of the Whitehaven case. I am discussing the effect on the clause of a particular state of facts that might perfectly well happen, for the purpose of illustrating a principle. May I be allowed to assume that the men did not know that this strike was going on? One person went to meet them, told them there was a strike, stated his views of it, no doubt favourable to the workmen, and appealed to them not to interfere with their brother workmen in this country. That was held unlawful. Why should it be unlawful? The noble Earl's sense of equity and justice will not let him get up and say that was wrong. It was right; but it was wrong according to the case of "Lumley v. Gye." The proposal now, therefore, is to alter the law.

*LORD BALFOUR of BURLEIGH
said it did much more. Supposing anyone for his own purposes induced the Post Office servants in some town to go away from their employment at twenty-four hours notice, would the noble Lord say that this clause did not prevent that man from being sued and made responsible for his action as regarded those servants?

§ THE LORD CHANCELLOR
The point I want to put to the Committee is that to induce a man to break a contract ought not in itself to be an actionable wrong. People make a contract: let them keep their contract. Other persons may induce them to break the contract, but why they should be liable to an action on that account I cannot see.

§ LORD AVEBURY
admitted that there might be cases in which hardship would 297 arise, but reminded the Committee that hard cases made bad law. A contract was a sacred thing governing nearly all their relations in life, and they ought to be very careful before doing anything to facilitate the breaking of contracts. He regretted, therefore, that the Government could not accept the Amendment.