Clause 4:—

HL Deb 12 December 1906 vol 167 cc297-305

LORD KELVIN

moved an Amendment to make the clause provide, not that actions against a trade union should be prohibited, but that if entertained by any Court they should not permit or entail any expenditure out of the funds of the trade union specially allotted to life insurance or charitable purposes. The primary object to be attained by Clause 4, the object contemplated originally by the trade unions and their friends in bringing in this legislation, was, he believed, to protect the insurance and charitable funds of the trade unions from destructive damages liable to be given against them in Courts of law. He did not believe the friends of the trade unions, or even the trade union committees themselves, wished for such legislation as Clause 4 provided. The trade unions did not want to act in a tortious manner. He believed they did not want to be protected against tortious acts. The clause as it stood seemed to him—he might be wrong—unprecedented in the history of law in civilised nations. It named a wrong and declared that there should be no remedy for that wrong. It seemed to him that the whole Bill would be destroyed if this clause remained in it unchanged, and that the Bill would not be acceptable to the great mass of working men. He believed it would not be acceptable to the great mass of the people as a whole, but, on the contrary, would be strongly condemned because of Clause 4. He desired to see the Bill pass. It was in that wish that he submitted his Amendment. He could not conceive of the clause in the shape in which it now stood becoming law. He had heard many strong expressions about it. He believed that if the clause passed in its present form, those who passed it would be regarded as having made a great mistake. His Amendment was simply to allow an allegation to be considered by the Court, but, whatever the result of the examination by the Court might be, the charitable and insurance funds of trade unions should not suffer. The question might be asked, How were the perpetrators of the wrong to be punished, or fined if they had no funds? It was not necessary for him to define methods by which that would be carried out. That was a matter for noble and learned Lords. The Bill as it stood would not allow a trade union to clear its character if an accusation were made. He believed that the clause as he proposed to amend it would be more acceptable to the trade unions, and it would prevent its being, said that trade unionists had been made into a privileged class outside the law of the land. With his Amendment inserted he believed the measure would be accepted as a valuable piece of legislation, hurting nobody and beneficent to all.

Amendment moved— In page 2, line 8, to leave out the words 'shall not be,' and to insert the word 'if'; and in line 9, after the word 'court,' to insert the words 'shall not permit or entail any expenditure out of the funds of the trade union specially allotted to life insurance or charitable purposes."—(Lord Kelvin.)

THE LORD CHANCELLOR

The Amendment is in itself a limited Amendment, because it proposes that although a trade union may still remain liable to an action and its funds may be taken, yet that the funds should not be taken if they are specially allotted to life insurance or charitable purposes. As a matter of fact, there are no such funds as funds specially allotted for life insurance or charitable purposes. Clause 4 does not propose to exempt any person from criminal or civil responsibility. What it does is to prevent the trade union itself from being sued. Let me pass from trade unions, and give a familiar illustration. Companies, as we all know, are liable to action; unincorporated associations can neither sue nor be sued. Take, for example—I desire to show impartiality—either the National Liberal Federation or the Primrose League. The Primrose League is reputed to have some money. Its council may do wrong, but they could not be sued, because they are not incorporated in the eye of the law. The whole question now is whether a trade union is to be placed in the position of the Primrose League or of the Gas Light and Coke Company. If it is to be placed in the former position, then all who commit wrong are individually responsible, civilly and criminally, but the trade union itself would not be. If, on the other hand, the trade union is to be placed in the position of the Gas Light and Coke Company then it could be sued. Before 1871 there was no doubt a trade union was in the position of the Primrose League—it could not sue or be sued. Then in 1871 an Act was passed relating to trade unions, but until the judgment of 1901 nobody supposed it altered the status of the unions. This Bill now proposes to restore trade unions to the position they occupied before 1871.

LORD JAMES OF HEREFORD

was exceedingly sorry to differ so much from his noble and learned friend. There was a great misunderstanding about this clause. Although the Bill was entitled "A Bill to Provide for the Regulation of Trade Unions and Trade Disputes" this Clause 4 had nothing whatever to do with trade disputes. Trade disputes were not mentioned in it. The clause simply said— No action shall be brought in respect of any tortious act against any trade union. A trade union, therefore, might in future build offices in any locality, and by a mistake of the architect shut out the light from adjoining property, rendering all the adjoining houses dark and uninhabitable.

THE LORD CHANCELLOR

Under the Act of 1871 the trustees are liable in respect of their property.

LORD JAMES of HEREFORD

But I am speaking of a tortious act that has nothing whatever to do with their property.

THE LORD CHANCELLOR

It has been held the trustees were liable in an action for libel in a newspaper because it related to their property named in the newspaper. Therefore they would be liable in an action for infringing the rights of ancient lights.

LORD JAMES OF HEREFORD

entirely disagreed. A trade union had branches, and in order to communicate with its branches it might have a motor-car. If the driver of a motor-car belonging to any noble Lord injured a fellow-creature he would have to pay, but they could not make a trade union motor-car responsible. The trade union would say, "We have a licence to commit any wrong we like." A libel might be written in a letter to newspapers and need not be a question of property at all. Parliament was giving trade unions the right to say, "We can take away a man's character, destroy his reputation and living; we have the right to do these things because we are a trade union." The members of the Primrose League, on the other hand, would be liable. If this licence were given to trade unions, why not to other bodies of men? Why should not deans and chapters be protected? Why should not the Trinity Brethren be protected? The trade unions themselves did not want this protection. In a discussion between Professor Dicey and Mr. Richard Bell, one of the most able, as he had reason to know, of trade unionists, as to the effect of this clause,. Mr. Bell repudiated the idea that they wanted any protection whatever except for their trade disputes. Mr. Bell said— First of all I want to point out that this Bill simply applies to trade unions in the contemplation or the furtherance of a trade dispute. I still adhere to what I have said, that it does, not and will not affect actions of trade unions except in contemplation or in furtherance of a trade dispute. The Lord Chancellor would, he was sure, admit that this clause went beyond acts done in contemplation or furtherance of a trade dispute. Mr. Bell had repudiated in the strongest way the idea that they wanted any protection whatever except for their trade disputes. He said— I, as a leading trade unionist, do not desire that it should cover such actions (libel actions), and I do not believe it does, because I and my colleagues endeavoured to be sure that it did not cover such actions. If it was the fact that the clause did not go beyond trade disputes, would the noble and learned Lord agree to the insertion of the words "when engaged in trade disputes"? The Bill was defended on the ground that equal powers were given to employers of labour. What had members of the public to do with this equivalent given to employers of labour? To a man whose character was destroyed or whose property was injured, what benefit was it to be told that the employers of labour had equal immunity with the trade unions? The general result of this equivalent to the public was that there were two sets of trade unions able to injure a man's property or destroy his character. What nonsense this equivalent was. It was an equivalent pour rire. Where were the employers who would be able to boycott? They could not do it. The employers had never asked for this equivalent, which was given to satisfy the consciences of Mr. Asquith and others. The public got no benefit by this equivalent, which was a licence for wrong to be done and a refusal to allow the injured party either to obtain money compensation or invoke the law. Whatever the injury to a person's property he had to stand by and be silent. It was to be regretted that in this Chamber in which the law and final judgment were administered, this proposition was made to set that law at defiance.

THE CHAIRMAN OF COMMITTEES

pointed out that they had been discussing the question of Clause 4 as a whole, and not the Amendment of the noble Lord. He thought it might be more convenient for the Committee to dispose of the Amendment of the noble Lord first, and then proceed with the discussion of the clause.

LORD AVEBURY

said he had an Amendment which raised the whole question, and he thought it was much better that they should first get rid of Lord Kelvin's Amendment.

*LORD ZOUCHE OF HARYNGWORTH

said before the noble Lord replied he would like to say a word. It was impossible not to feel sympathy with the Amendment, and impossible also not to see that it went to the root of the Bill, and would take away from the power of the trade unions to commit with impunity a tortious act to injure or ruin anyone who had no I cause of quarrel or dispute. The noble Lord had also said that it went beyond what the trade unions demanded. If that were so, he would venture to suggest that they should let the public judge of it.

*VISCOUNT ST. ALDWYN

said he had no intention of following the noble Lord into the main subject of the clause, nor was he qualified to do so; but it seemed to him that the Amendment which the noble Lord had moved was really an indirect rejection of the clause. When he was Chancellor of the Exchequer he received a deputation from trade unions asking him to afford to their funds a power of investment in savings banks to an extent beyond that which was given to ordinary persons, and was given to friendly societies. He at once asked them whether they were prepared to divide their funds so as to allocate part to benefits and part to trade union purposes. They absolutely declined to do anything of the sort, and said that their funds were never so divided. Now the noble Lords proposed that a Court should decide how those funds should be divided. It seemed to him to be an impracticable proposal. He hoped their Lordships would adhere to the clause, because otherwise they would practically stultify the Vote of the House on the Second Reading.

LORD KELVIN

protested against the assertion that the Amendment was destructive of the clause. He hoped to see Clause 4 stand part of the Bill, and the Bill carried. He had demonstrated the practicability of his Amendment. He did not know whether even learned Lords perfectly appreciated how thoroughly the law was respected and trusted by people who were not lawyers. The whole public looked to the law for defence. If there were an action against a trade union or against an official of a trade union, even if the giving of damages were impracticable, the Court of law could grant an injunction, which was a most important thing, and stop the mischief if there were a tortious act done or in contemplation. In any case in which it was alleged that a tortious act had been performed, examination of the question by a Court of law would be for the public benefit. It would decide whether it was or was not a tortious act. That would be an important thing for the good of the public. If it were wrong and illegal the Court would grant an injunction preventing it from being carried on in future. Then the individual carrying it on would be personally liable to fine or imprisonment, whatever it might be. For instance, if a workman were waylaid, beaten and disabled, and he was out of work for six weeks in consequence, would it not be right that he should get damages, not only for personal injuries but also for loss of wages for six weeks? As the clause now stood, there would be no way of even asking for relief in such a case. If the allegation that a tortious act had been committed were entertained by a Court of law it would be to the public advantage; Yet this clause prohibited that. He felt it difficult to restrain his language within bounds when he thought of this. He hoped and trusted the Government would consent to modify the clause, so that it should not prevent an action being raised when a wrong was alleged. An action or inquiry might be necessary to clear the character of the trade union or some of the officials. How was the character of a man falsely accused to be cleared except by a Court of law? Nothing was so good for this as a Court of law. If their Lordships would consent to accept this Amendment he believed it would be found that the difficulties in working it out were altogether imaginary. As to the funds, it was desirable and right that any person or body of men who could go at out and do good, or make a mistake and do evil, should be liable to be called to account, and if they had money to pay they should pay reasonable damages for the wrong done. If there was no damage to pay in the case of an accident the poor man went to prison, but the rich man paid his fine and perhaps thought no more about it. He did not think the trade unions would feel at all uncomfortable if they had to stand actions for tortious acts alleged to have been committed by their acting officials. He believed the clause as it stood would encourage the committal of tortious acts which otherwise would not be committed. If an allegation were false the Law Courts would find it out. It was a safe guarantee. The ordinary working funds of a trade union might be come upon for damages in case of an action going against them. They would immediately arrange their funds. It was perfectly idle to say it could not be done. Any trade union could consult a solicitor who would find some way of putting all the funds required for charitable purposes on a safe footing. He held there would be very few cases of damages if this Bill became law and Clause 4 was amended as he suggested.

On Question, Amendment negatived.

*Lord AVEBURY

moved an Amendment to insert, after the word "union" the words "in contemplation or furtherance of a trade dispute." They had heard a great deal about the mandate for this Bill. They had also heard that there was a mandate for the Education Bill, the Land Tenure Bill, and several other Bills. He did not think, however anyone would allege there had been a mandate for every word in this Bill, and he believed his Amendment would carry out what was the wish, at any rate, of Mr. Bell, who spoke as a leading trade unionist. The Lord Chancellor had spoken somewhat severely of jurists and economists. Mr. Bell, in a speech which had been already quoted by Lord James of Hereford, had stated that those for whom he was acting were quite willing that this clause should be confined to cases which were in furtherance of a trade dispute, and it was really in order to carry out that suggestion that he ventured to suggest to their Lordships this Amendment.

Amendment proposed— In page 2, line 8, after the word 'union,' to insert the words 'in contemplation or furtherance of a trade dispute—(Lord Arebury.)

THE LORD CHANCELLOR

I do not propose to trouble your Lordships with repetition of what I have said. My contention is that the trade unionist sought to be placed in the position in which they indisputably occupied before, viz., that they stand in the same place as every other incorporated body, in which case they would not be liable to any action at tort. It is not in compliance with that view if they are only to be exempted from the law in cases of contemplation or furtherance of a trade dispute. It would be wrong for me to repeat myself, so I cannot say more, except that for the reason I have stated I cannot accept the proposal.

On Question, Amendment negatived.

Question proposed, "That Clause 4 stand part or the Bill."

LORD JAMES OF HEREFORD

said that as he had said all he had to say against this clause he did not propose to offer any more remarks. He had, however, pledged himself very strongly that this clause was something in the nature of an attack upon the constitutional law, and therefore he proposed to divide upon it.

*THE MARQUESS OF LANSDOWNE

I regard this clause as being the kernel of the Bill, and I have already ventured to say that this Bill is one which your Lordships would do well not to reject. I feel that if I were to vote for the rejection of this clause I should be giving a vote against the Bill itself, which I have already declined to give. I shall, therefore, vote with noble Lords opposite.