§ Order of the Day for the Second Reading read.60
§ LORD BANBURY OF SOUTHAM
My Lords, I do not think it will be necessary for me to say much in defence of this Bill. You are all aware of what has taken place during the last three months, during which time the peaceful picketing, which was supposed to be one of the reasons why there was no objection to the Trade Disputes Act being passed, has turned out to be the grossest possible intimidation. One man was killed, a Mr. Peachey, who was attacked in a subway under the Thames because he had done his duty during the strike in endeavouring to preserve the food supply of his fellow citizens, and only a day or two ago I read in The Times that in Wales certain miners had returned to work and this so angered other miners who were still out that a large body set out to prevent these men going to work. They were met by the police, who succeeded in breaking them up, but they got at the miners in smaller bodies and the result was that the miners who had resumed work were afraid to continue and again went on strike.
It has been said that when this Act was passed in 1906 the Conservative Opposition in the House of Commons did not oppose it and did not divide on the Third Reading. I was beaten in January, 1906, and I did not return to the House of Commons until May, 1906. In that interval the Second Reading was taken, and there was no Division, but several Amendments were moved in Committee and there were several Divisions. I moved several Amendments—in fact, on looking back into the history of the dispute, I see that I was charged by a Liberal Member of that day with moving wrecking Amendments, and I do not think that he made an incorrect statement. I divided the Committee on those Amendments, and when the Third Reading came I said that I should divide the House, but the then Leader of my Party, the noble Earl, Lord Balfour, whom I am pleased to see in his place, thought that it would not be advisable to divide. We have to remember the situation in which we found ourselves at that time. We had a very small number of members, and there was a fear amongst many of them, in which I never participated and in which I do not think my noble friend Lord Balfour participated, that it was a mistake to divide when our numbers 61 were small. That fear was the chief reason why we did not divide.
I have looked up the OFFICIAL REPORT of that time and I think that one of the reasons why we did not divide was that it was then held by the Liberals of that day—and, so far as I can gather, this consideration affected my noble friend Lord Balfour—that the Taff Vale Judgment, upon which the whole thing turned, would, if it were allowed to remain law, affect the benefit funds of the trade unions, and that the proper course to pursue was to separate the benefit funds from the other funds. I have looked up the Taff Vale Judgment and I see that Lord Macnaghten said this—If you take up the Report of the Royal Commission on Trade Unions, and turn to the statement accompanying the Minority Report to which Mr. Haldane referred, you will see that there was nothing on which the advocates of trade unions insisted more strongly than on the right of unions to employ the whole of their funds for the purposes of strikes and in connection therewith. At present, say the authors of that statement, the strength of the union and the confidence of its members simply consists in this, that it can, if so disposed, employ the whole of its funds in support of the trade ends. Enforced separation of the funds would paralyse the efficiency of the institution.Accordingly I venture to say that it is perfectly clear that the trade unions merely put that forward as an excuse. They never intended to separate their funds, they never have separated their funds, and they never will separate their funds unless they are compelled to do so by an Act of Parliament.
On looking back over the years that have passed, I think that in all probability the Conservative Opposition in the House of Commons did a wise thing at that time. If we had divided on the Third Reading, and if your Lordships had thrown the Bill out, we should have been told that we had endeavoured to prevent the members of the trade unions receiving the benefits to which they had subscribed and which were due to them when they were old, and we should have been told that the idea of any employment of violence in trade disputes was foreign to the whole spirit of the Bill and to the spirit of trade unionism. It was thought that we had much better let people see what the effect of the Act really was. They know it now. They know that the effect of the Act is to 62 allow a majority to go down to an unfortunate man and threaten to kill him or break his head if he ventures to do what I say he has a perfect right to do—namely, to employ his labour in any way that he thinks fit. Not only so but they go to his house and intimidate his wife and children and make their lives a burden.
I do not say that the repeal of this particular Act is the only thing that is necessary to be done. I think that other things are needed, such as a secret ballot before a strike and also that the funds of the union should be divided; but those things must be done by an Act of Parliament. I propose, as a first step, the repeal of this particular Act. I put this Bill down some two months ago but, in deference to the Leader of the House, I have postponed it on various occasions. I quite agree that the proper course is for the Government to bring in a Bill dealing with this matter, but the Government, so far as I know, have taken no step to do so. If this is not done now it will never be done at all. You have to take advantage of the situation when the facts are fresh in the memory of the country. If you are going to leave it and appoint a Committee—I do not care whether it is a Cabinet Committee or a Royal Commission or any other means of shelving the matter—and wait until next year or the year after, what will be the inevitable result? Members of the House of Commons will say: "We must be careful what we do; there will be an Election very shortly and we must not do anything to offend anybody." I was a member of the House of Commons for many years and I know what they say. The consequence will be that the opportunity will be missed; and therefore I have pleasure in moving the Second Reading of this Bill.
Moved, That the Bill be now read 2ª.—(Lord Banbury of Southam.)
§ LORD TEMPLEMORE
My Lords, I beg to move that the debate on this Bill be now adjourned. It is with very real regret that I find myself in opposition to my noble friend on this question. The noble Lord has been in one or other House of Parliament for a great many more years than I have months, and have, as I think he well knows, a great respect for him, both personally and on account of his Parliamentary experience, 63 and I should like to be guided by what he says and does. But in this case I cannot be so guided because I think that he is taking a mistaken course, not so much in regard to what he wants as in the means by which he proposes to get it. May I say to begin with that I agree with almost everything that my noble friend said about the iniquities of the present Act? I have been reading the debates of twenty years ago. I was struck with two things and I am not quite sure which of them surprised me more. The first is how such a monstrous Act of Parliament ever got on to the Statute Book; and the second is the extraordinary optimism with which it was apparently assumed by people in those days that all would be for the best in the best of trade union worlds. The whole history of the Act is peculiar. I do not understand at all how it was that certain Amendments were accepted by the Liberal Government in another place with its enormous independent majority, and how the Bill came to be passed by this House without amendment is a thing which it is not given to me, I am afraid, to understand.
My noble friend just now expressed a fear that the Government would not take action on this matter until too late. I am not afraid of that personally, and I hope it is not true, because I say quite plainly to the noble Marquess and to His Majesty's Government that we on this side of the House and vast numbers of the electorate, including vast numbers of trade unionists, do expect some action in this matter. In the opinion of a great many people action in this matter is due, or overdue, but I think the point is this, that any action which is taken in this important matter cannot be action initiated by a private member. It must be Government action, taken after full consideration, with Cabinet responsibility. Also, I do not think that this House is a suitable place in which to start legislation of this kind. I think that such legislation must be started in another place. When legislation comes, I think it will probably not consist of a simple Repeal Bill like this measure of my noble friend. It is very easy to pass an Act of Parliament, but not always very easy to repeal one. There are many measures on the Statute Book which are unpopular with us. That masterpiece of legislation called the Parliament Act is not 64 altogether popular with noble Lords on this side of the House, but does my noble friend, or any noble Lord, imagine that you can solve the problem of the relations between this House and the other House by a simple repeal of the Parliament Act?
For one moment I would like to consider the attitude of this House towards this Bill. A fortnight ago, in the debate on the Coal Mines Bill, the noble Lord, Lord Arnold, uttered a threat against this House of the loss of all its powers. That was not a very pleasant threat, but it did not alarm me greatly, and I hope it did not frighten your Lordships overmuch, because, if I may say so, with due respect to the noble Lord, it does not matter what he or any other noble Lords think of this House, but what the people in the country think of it. I go about to a certain extent in the county in which I live, and in other parts of the country, and I talk about these things. I am convinced that most of the people of this country do not look upon this House as a monstrous, obstructive, survival of the Middle Ages, and that your Lordships are not nearly so unpopular in the country as some people make out, and, as I am afraid, some of your Lordships are inclined to believe.
In my opinion this House has made two mistakes in the last twenty years: The first the one I have already referred to, when they passed this Act which is causing all the trouble; and the second, five years later, when they surrendered to what I shall always consider to be a most gigantic piece of bluff. But although some of us on this side of the House would like to see this House stronger, yet I maintain that on the whole it does its work remarkably well. We are not obstructive, we move with the times, and we are quite ready, if noble Lords opposite wish it, to meet any threats either in this House or in the country. If, however, you want to find a method by which you would forfeit this good opinion, and be written down as a set of irresponsible partisans, I can imagine no better method by which you can attain this object than by even starting to discuss a Bill such as this, proposed by a private member.
In our debate last Wednesday the noble Earl, Lord Beauchamp, in what, if he will allow me to say so, I thought was a very happy phrase, referred to himself 65 as a "House of Lords man." In a very minor way I hope I may call myself a House of Lords man, too, as regards my affection for this House, for its atmosphere and its traditions. It is because I value those traditions, and because I believe in the future of this House and its power for good in legislation, that I take the line which I have adopted this afternoon. I hope that in the circumstances this House will consider it the correct course to take. I beg to move.
Moved, That the debate be now adjourned.—(Lord Templemore.)
§ VISCOUNT DUNEDIN
My Lords, twenty-three years ago, when I was Lord Advocate for Scotland and when the noble Earl, Lord Balfour, was Prime Minister and Leader of the House of Commons, he appointed a Commission to inquire into trade disputes, of which Commission I was Chairman. The subject was intricate and complicated, and its history is not easy to follow, as, indeed, I think the noble Lord who has just sat down confessed. I was not anxious to intrude upon your Lordships, but I took counsel with the noble Marquess the Leader of the House and he indicated to me that, having the advantage of a certain amount of knowledge of the subject, I should really help your Lordships if I told you the story of the legislation, so that you might see exactly how the matter stands and how it would stand if this Bill were passed.
The other members of that Commission were Mr. Arthur Cohen, Sir Godfrey Lushington, Mr. Sidney Webb, and Sir William Lewis. I regret to say that Mr. Sidney Webb and myself are the only survivors. Mr. Arthur Cohen was a very distinguished lawyer, Sir Godfrey Lushington was an old servant of the Home Office, and Mr. Sidney Webb was the historian of trade unionism. Sir William Lewis was associated with many trade disputes, and I cannot help thinking, looking back, that my noble friend may have cause to regret that Sir William Lewis was ever appointed. He may have thought that trade unionism was properly and sufficiently represented by Mr. Sidney Webb, but for some reason trade unionists would not accept Mr. Sidney Webb as their representative. Whether they thought that so mild mannered a person would not cope properly with such 66 an antagonist as Sir William Lewis know not, but I think Mr. Sidney Webb had the idea that all this was in the wrong direction, that the proper direction of the inquiry was to see if you could not have some general arbitration court to settle all disputes. The result was this: The Commission was appointed in June, and in the following autumn the representative body of the trade unions—I do not know whether I shall be right in calling them the Trade Union Council—met and passed a resolution that no member of a trade union should give evidence before our Commission; in fact, they boycotted us. One regretted it, but we were not really hampered, because, after all, we knew perfectly what the trade unionists wished. They had made many speeches in different parts of the country, and they had introduced in successive Sessions of Parliament a good many Bills.
We sat for a long time, and at last we gave a Report which is before me now. It is a document of 172 pages, without any evidence; it is tough reading for anybody, and dull reading for most people. The Report was a Majority Report of Mr. Cohen, Mr. Webb and myself, but I want to do justice to Mr. Webb. He only signed the Report because he said that he agreed with the recommendations, as far as they went, and, as I say, his general idea was rather in another direction. And therefore in anything that I say I am not going to try to pin Mr. Webb down to any approval of what we did. Sir William Lewis gave a separate Report which was, of course, strictly antagonistic to the trade unions. With regard to Sir Godfrey Lushington, I speak with all respect of a very valuable public servant, but he was a man who not only had his own opinions but, if he found that other people had the same opinions, he did not like those other opinions unless they were expressed in exactly the same way that he expressed them. And therefore he also wrote a Minority Report, which practically agreed with the Majority Report, though it was put in the way in which he thought it ought to be put.
That Report was presented on January 15, 1906, but in the meantime there had been a General Election and the other Party had come into power. Let me remind those of your Lordships—and there are many—who have sat in 67 another place of what happens about the First Reading of Bills. Any private member who wishes to present a Bill, unless there is something very peculiar about it, gets the First Reading of it as a matter of course, and accordingly, in the very early days of the Session of 1906, there was presented a Bill on behalf of the trade unions, with the name of Mr. Whittaker and other members on the back of it, which was precisely the same Bill which Mr. Whittaker had presented in 1905, and therefore was perfectly well known to the Commission. The Government had, indeed, mentioned in the King's Speech that they were going to present a Bill dealing with this subject. I do not know whether the procedure is the same in another place now, but in my time a Government Bill, if considered important, was introduced in such a way as to allow a debate on the First Reading. Accordingly, on March 28 the Government Bill was introduced and for the first time saw the light in the House of Commons. At the same time the text of the trade unions' Bill was there. The trade unions' Bill went a good deal further in three points. It was subversive of the Government Bill on one—namely, as to the liability of trade union funds, and the Attorney-General, Sir J. Lawson Walton, in his speech asking leave to introduce the Government Bill, was most eloquent upon that distinction.
What happened was this. By the luck of the ballot, on March 30—or only two days after the Government Bill had been introduced—the trade union Bill came up for Second Reading. What, of course, was expected was that the Government would say: "We have got our own Bill, and therefore it is quite unnecessary for you to go on with yours. We are dealing with the subject." But when the Prime Minister, Sir Henry Campbell-Bannerman, came to speak, to the surprise of everybody and the dismay of the Conservative members of the Opposition, he suddenly said that he would vote for the Second Reading of the trade union Bill. The result of that was—and that is really the reason which my noble friend Lord Banbury was seeking for—that when they came to the question of the Second Reading of the Government Bill there had already been a Second Reading of the Bill which the Government had accepted.
§ VISCOUNT DUNEDIN
After that a new clause was brought up so as to incorporate in the Government Bill the really far-reaching clause of the trade union Bill, and the trade union Bill was dropped and the Government Bill went through its stages. Although it was, of course, opposed in many ways, it was finally passed. I think your Lordships will realise that to a full understanding of the situation you have to consider several things. You have to consider, first, the status quo ante, the state of the law, as it was before anything was done. Next you have to consider what were the recommendations of our Report. Then you have to consider the original Bill of the Government, then the trade union Bill, then the Government's amending Bill, and finally the Act.
In all these considerations it is easy and at the same time advisable to remember that there were three great divisions of the subject. There was the question of the liability of trade union funds; there was the question of the conduct of trade unions as regards picketing and as regards what they could persuade and what they could not persuade; and then there was the question of the law of conspiracy as applicable to the trade unions. First, as to the status quo ante. The trade unions, after a long struggle against the legal doctrine of illegal association, which made it impossible for them to do anything, had finally obtained recognition. The form of recognition raised for them a dilemma. They wanted very much not to have any litigation, if they could help it; and they wanted not to be sued by their own members for not doing as they promised, in the same way as a company can be sued by its members. But at the same time they had been troubled with embezzlement. Even a trade union official may sometimes not be an angel and they had been very much troubled with the embezzlement of funds in the past and then they were helpless to prosecute. So they had a rather peculiar form of enfranchisement.
At the time I am speaking of, the charter of trade unionism was the Trades Unions Act of 1871. It is a fairly long Act, but I need only trouble you with 69 three provisions. The first is Section 2, which says:—The purposes of any trade union shall not, by reason merely that they are in restraint of trade, be deemed to be unlawful so as to render any member of such trade union liable to criminal prosecution for conspiracy or otherwise.The next is Section 3, which says:—The purposes of any trade union shall not, by reason merely that they are in restraint of trade, be unlawful so as to render void or voidable any agreement or trust.Then there was Section 9, a long section which I need not read, because it gave them power to prosecute their own embezzling officials
There was another Act which dealt with what I might call their behaviour, and that was the Conspiracy and Protection of Property Act passed on August 13, 1875. Of that Statute I need only read two sections. Section 3 says:—An agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute between employers and workmen shall not be indictable as a conspiracy if such act committed by one person would not be punishable as a crime.Section 7 says:—Every person who, with a view to compel any 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, wrongfully and without legal authority, uses violence"—and so on. Then I go to paragraph 4, which says:—Watches or besets the house or other place where such other person resides, or work, or carries on business or happens to be, or the approach to such house or place.shall, on conviction, be liable to a certain penalty. To that there is the following proviso:—Attending at or near the house or place where a person resides, or works, or carries on business, or happens to be, or the approach to such house or place, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section.That was the state of the law.
But the trade union community had been greatly perturbed and excited by three cases which had come before the Courts. Those cases are the Taff Vale case, the case of Quinn versus Leathern and the case of Lyons versus Wilkins.
70 The Taff Vale case settled that trade union funds were liable to be taken in in execution for any tort which had been committed by the authority of a trade union. I do not pause to tell your Lordships how that, was. You will find it in the report of the case. The history is a very long one, but it is a history which shows that there is nothing to be surprised at when I say that the decision came as rather a bombshell to the trade unions, because for very technical reasons, which I need not now go into, they had been immune to a great extent from prosecution. Then Quinn versus Leathem settled that, although the Act of which I have already read a section dealt with criminal conspiracy, it did not deal with civil conspiracy, and, accordingly, an action for damages based upon civil conspiracy would lie. Lyons versus Wilkins, which was a decision of the Court of Appeal, which was finally approved of by your Lordships' House in Allen versus Flood, gave what I might call a very strict interpretation of the section 1 read a little while ago about watching and besetting. That was the state of the law.
I come now to the Bills. There is no particular order about the sections and, therefore, for the sake of clarity I will take the order in which the sections originally stood in the Act. The first section of the Government Bill was:—The following paragraph shall be added as a new paragraph after the first paragraph of section three of the Conspiracy and Protection of Property Act: 'an act done in pursuance of agreement or combination by two or more persons shall if done in contemplation or furtherance of a trade dispute not be actionable unless the act if done without such agreement or combination would be actionable.'That section is really tantamount to Recommendation No. 9 of our Commission, which was:To enact to the effect that an agreement or combination of two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute shall not be the ground of a civil action unless the agreement or combination is indictable as a conspiracy notwithstanding the terms of the Conspiracy and Protection of Property Act, 1875.That section was practically in the first Government. Bill. It was very much the same, though with a little change of phraseology, in the trade union Bill. It was the same in the amended Bill and finally found its place in the Act as Section 1 which I have read. So 71 there is not much to be said against it if you agree with the views of the Commission.
But when you come to the other sections you will find, I think, that although there was a Government Bill, each clause of the trade union Bill, like Moses' serpent, swallowed a clause of the Government Bill and finally got into the Act. Section 2 of the Act is as follows:—(1) It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working.(2) Section 7 of the Conspiracy and Protection of Property Act, 1875, is hereby repealed from? attending at or near" to the end of the section.The history of this is really very peculiar. As far as our Report is concerned that corresponds to our Section 8.
In the Report itself we went at great length into the abuse of picketing and we advised:To alter the 7th Section of the Conspiracy and Protection of Property Act, 1875, by repealing subsection (4) and the proviso, and in lieu thereof enacting as a new subsection (which would also supersede subsection (1)): 'Acts in such manner as to cause a reasonable apprehension in the mind of any person that violence will be used to him or his family, or damage be done to his property.'In the original Bill the following provision appears:It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute."—I draw the particular attention of your Lordships to this—to attend, peaceably and in a reasonable manner, at or near a house or place.…if they so attend merely for the purpose of obtaining or communicating information.The trade union Bill made a little change which I will indicate to your Lordships. In the amended Bill the Government at first stuck to their original suggestion, but if your Lordships remember the words I have just read, you will observe the change. It is no longer "to attend peaceably." but 72to attend merely for the purpose of peacefully obtaining or communicating information.Although it seems to be only a matter of words it is really an alteration of the very gravest importance. In the first words that were used, if you go with a great posse comitatus, such as a congeries of persons gathered for this purpose, it is not peaceably attending. But under the Act as it now stands you may go with any number of people and you may frighten a person as much as you like, provided that you go with the object of peacefully persuading him. That is the history of that section.
We come next to the third section: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 or that it is an interference with the trade, business, or employment of some other person.…First of all as regards the Report: there really are two recommendations in the Report and they are these—To declare that an individual shall not be liable for doing any act not in itself an actionable tort only on the ground that it is an interference with another person's trade, business, or employment,andto declare that to persuade to strike i.e., to desist from working, apart from procuring breach of contract, is not illegal.But the trade union Bill at once added "the breaking of a contract," and the Government Bill was even more explicit in words than the trade union Bill, so that it finally found its way into the Statute Book that to persuade another man to break a contract (which had always before been held to be a tortious and an illegal act) was not illegal.
We now come to what is really the most important part of all and that is the fourth section. As regards that section our recommendation in the Report was in these words:—To provide means whereby the central authorities of a union may protect themselves against the unauthorised and immediately disavowed acts of branch agents.The Government Bill went in for rather elaborate provisions on the matter of agency. It provided for the appointment of a committee, and then that actions should not lie unless the act was committed by the committee or some person acting under authority, but no counten- 73 ance was given to the idea of trade unions being entirely immune. We had, as a matter of fact, dealt with the matter in no uncertain way. We had said that there is no rule of law so elementary, so universal and so indispensable as the rule that the wrongdoer should be made to redress his wrong. Afterwards we said—On what grounds can such a claim [to be immune] be supported? Trade unions which originally were looked upon as illegal combinations have made out their claim to enfranchisement and existence. But having done so they cannot put their claims higher than to say that they are institutions which are beneficial to the community as a whole. But so are many other institutions—banks, railways, insurance companies and so on. It may have been right to provide, as has been done, that the Courts shall not have power directly to enforce agreements between trade unions and their members in the same mariner as they can in the case of shareholders.… But when trade unions come in contact by reason of their own actions with outsiders and ex hypothesi wrong those outsiders, there can be no more reason that they should be beyond the reach of the law than any other individual, partnership or institution. Such a claim has indeed in former times been made by the spiritual as against the civil authority, and has been consistently disallowed. What was denied to religion ought not in our judgment to be conceded to trade unionism.So far as those words went, they are not a bit stronger than what the Attorney-General, Sir Lawson Walton said in his speech introducing the Government Bill. He said—But let me ask the House to face that proposition. The proposition, I understand, is that, however great and ruinous the loss that may be suffered by an individual, however unjustifiable the conduct of the union which may occasion that loss, even in the case of that conduct having been carried out by means of the use of the funds which are controlled by the union, yet those funds, the property of the union, are not to be made liable to redress the claim consequent on that loss.Later on in his speech he said:—But are you not proposing class privileges? In the old days of our law these immunities of class existed. They were the privileges of the aristocracy and they have been abolished. Do not let us create a privilege for the proletariat, and give a sort of benefit of clergy to trade unions analogous to the benefit of clergy which was formerly enjoyed and which created an immunity against actions in favour of certain sections of the population.Then came the trade union Bill. The trade union Bill, of course, went the whole 74 way and said simply that there should be no action against the trade union. That is the proposition to which Sir Henry Campbell-Bannerman gave adherence. I should like to apply an epithet to his speech, but no one likes to use an epithet against a dead man, especially a dead man who has still many friends, among whom I may, indeed, include myself. I shall content myself by saying this, that when Sir Henry Campbell-Bannerman came to think over his speeches I do not think he could have been very proud of this one. I say that for this reason. If he had suggested: "Two days ago my Attorney-General (making a speech in favour of the Bill which I have approved of) used those strong words, and during those two days I have been converted and therefore I have changed;" or if he had said, "On trying to find out what is the position with my Party I find that my Party has been too strong for me and I must give way to the people who support me," I do not think anything more could have been said. But he did not do that.
He made a speech in which he tried to make out that this change was merely a Committee point. He said: "Oh, you are all agreed on three parts of the Bill. There is a fourth. Well, it is a very little thing. We will settle that in Committee." He must have known that this was in reality a most far-reaching thing to do and that it absolutely changed the Bill. Finally it found its way to the Statute Book and found its way in this very simple form—An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act alleged to have been committed by or on behalf of the trade union, shall not be entertained by any court.During the progress of the Bill the trade unionists seemed to have awakened to the fact that if they left that alone it was really dangerous to themselves. Accordingly there was a proviso put in the Section which only appeared during the progress of the Bill, stating:—Nothing in this section shall affect the liability of the trustees of a trade union to be sued in the events provided for by the Trades Union Act, 1871, section nine, except in respect of any tortious act committed by or on behalf of the union in contemplation or in furtherance of a trade dispute.75 In other words: "Leave us our old power of sueing our own dishonest officials."
Now let me turn for a moment to what would happen if this Bill passed. Of course you would revert to the exact state of affairs with which we, as a Committee, had to grapple, and what would be the effect? I do not suppose that my noble friend thinks there is much chance of a Bill introduced by a private member passing in the other place. And what would be the result? Why, throughout the country it would be said that the Lords are out to destroy trade unions. Our Report dealt with each and every branch, and any Bill which destroyed the Act of 1906 would properly have to deal with each and every branch, but this Bill deals with none. I do not want to say much about my Report. There was a chorus of approval at the time and I will not say anything about the very kind words that Lord Balfour used. After all, he was only blessing his own children, but when Sir John Lawson Walton introduced the Government Bill he said that it really only went a little further than we did, and Sir William Robson, on the Second Reading, claimed that the first three sections of the Bill were our Report and nothing but our Report. I hope I have shown your Lordships that that is scarcely so, but at any rate they said nothing against our Report.
I would like to read what was said by Sir Edward Carson, now Lord Carson, when the Government Bill was debated in the House of Commons. He said:—I do not think anybody can deny that it is absolutely necessary for the Government to bring in some Bill dealing with trade union disputes. The matter has now been before the House for several years and, as we were reminded by the hon. gentleman who spoke below the gangway, Bills somewhat on the lines of the Bill adumbrated by my hon. and learned friend the Attorney-General passed on more than one occasion the Second Reading in the last Parliament.Then he said:—I go further, and I say that it is important that if a Bill of this kind is to be passed at all it should be passed by the Government on their own responsibility and not upon the introduction of a private member.
§ LORD BANBURY OF SOUTHAM
Does the noble Viscount remember what Lord Carson said later? He said, in effect: "Why bring in a long Bill of 76 this sort? Why not bring in a simple Bill: The King can do no wrong, neither can a trade union?"
§ VISCOUNT DUNEDIN
I do not remember that, but I have no doubt Lord Carson said it. He was obviously disgusted with the law passed on behalf of the Government. What I read was what he said when the Bill was brought in—that it was his view that such a Bill ought to be dealt with by the Government and by nobody else. I think that on that point his opinion still stands. I have dealt—I am afraid at some length—with this, and I think I have kept my promise that I would not intrude any of my own views upon you, but I would like to say one thing further. I would say with all earnestness, because I feel very strongly, that it would be a great pity at this juncture if any words were used which could be twisted into meaning that there was hostility to trade unions. As far as my own character is concerned I take my stand on my Report, and I defy anybody to read that Report and find in it any internal evidence which would justify saying that I have hostility to trade unions. But I wish to say one thing—and I would be very glad indeed if it could find an echo in the breasts of the noble Lords who are in Opposition—that I think the future of this question depends enormously, I may say almost altogether, upon the trade unions themselves.
If the trade unions choose to stick to their proper work of safeguarding workmen, of trying to get the best terms they can for them, of maintaining the standard of life of the workers, of improving that standard of life if they can, then hostility to trade unions will be quite wrong and I do not believe any such hostility will be shown. But if trade unions so conduct themselves as to show that it is not really that which they want but that they want to govern the country, then I say it is the absolute duty of the Government to look into the law and see if by the law they have not been put into a false position which enables them to maintain such an aim. In the days when the Government do so I think they ought to do it not only because of the instinct of self-preservation—a feeling that is shared by the meanest of created creatures—but also because of the feeling of liberty. Here I turn to all those 77 who face the Government. They have always said they were champions of liberty. In the past we have wrested liberty from the autocracy of Kings and the oligarchy of aristocrats. Why should we surrender it to a trade union association even if it calls itself a proletariat? That situation may or may not arise. If it does arise the Government, I have no doubt, will have a difficult and thorny path, but it is a path which I think they will be bound to tread, and it is a path only to be trodden by the Government and not by a private member. Therefore I shall vote for my noble friend's Motion for the adjournment of the debate.
§ THE LORD CHANCELLOR (VISCOUNT CAVE)
My Lords, we have all listened with interest to the speech of my noble and learned friend who has an intimate knowledge of this branch of the law and an unrivalled recollection of the history of the different Statutes which have been passed. If I do not follow him into every part of his speech it will be for two reasons, both of which I think he will understand. One is that I have really no quarrel with any part of the speech of my noble and learned friend. He knows the history of the matter, and he has given the facts, to the best of my recollection, with complete accuracy. The second reason is this: that I am going to invite your Lordships not, on this particular occasion, fully to discuss the matter which is raised by this Bill, but for reasons which I will give, to accept the Motion for adjournment moved by my noble friend Lord Templemore. I do that for two reasons. One is that this matter is of very grave importance and it cannot really be dealt with on a Bill which contains nothing but one crude proposal—namely, to repeal the Act of 1906. The Bill goes in some respects too far, in other respects not far enough, as I hope I shall show in a few moments. The other reason is that a matter of this importance ought to be dealt with on the responsibility of the Government of the day.
I do not say that—I know my noble friend Lord Banbury will believe me—for the purpose of putting off a decision. The Government have taken this question into their careful consideration. A Committee has now been sitting on the matter for some weeks. It is on the 78 point of making its recommendations to the Cabinet. I do not doubt that the Cabinet, will consider them at an early date, and I think—though, of course, as to this I can give no absolute promise until the Cabinet has made its decision—that it will find it necessary to propose legislation at an early date. Having said that, I think this House will see that it is, in the first place, impossible to have a complete discussion to-day, and in the second place undesirable to have a partial discussion. If you are going to legislate you must surely have not two Bills but one Bill dealing with the whole matter.
As to this Bill I have said that in some respects it goes too far. I think that the speech of my noble friend Lord Dunedin has proved that up to the hilt. The proposal is to repeal the whole Act, including the first section of the Act, a section which permits combinations among workmen and which is at the root of the whole theory and existence of trade unions. Now no one to-day, or no one in his senses, wishes to make a general attack on trade unions. The right of workmen to combine was won by a long struggle. It has been fully tried. It has resulted, I believe, in the betterment of the conditions of the workers in many respects, and it would be, it seems to me, both unwise and unjust to attempt to-day to make an attack upon the general system of trade unions. I am sure that the Government, at all events, have no such desire. But if you repeal Section 1 of the Act of 1906 you do take an important step towards that end. Then there is the second section, which deals with picketing, upon which my noble friend Lord Banbury called attention to cases, as he said, of Intimidation. By repealing the second section you do not destroy picketing, which rests upon earlier law; still less do you destroy intimidation, because that already is criminal if only proof can be obtained.
There are two points which do want consideration, but careful consideration, on the question of picketing. One is the circumstance that the pickets, sometimes few in number, are accompanied by a large crowd of people who come there as lookers-on but whose presence must have the effect of influencing the action of the men who wish to work. In the second place, the 79 practice of picketing, or rather of visiting, men at their own homes and in the presence of their wives is also a practice which at all events deserves consideration, and I think that, when the House comes to consider this question, they will desire to look into that point as well as into the others. I will not go through all the sections of the Act. I agree that Sections 3 and 4 want very careful consideration and, when the time comes, the House will have to consider whether they can be maintained in their entirety. But that is not a matter which we can deal with to-day. In these respects this Bill, as I have said, goes too far.
In another respect it does not go far enough, because it does not touch some of the questions that have been raised in all our minds by recent events. Let me mention one or two of them, simply as matters that must be considered when a Bill dealing with this question is introduced. First, it is necessary to formulate the position as to movements like the late General Strike. It is not very long since the General Strike took place and collapsed, but it raised—I think everybody will agree with me here—serious questions, and Parliament may have to consider whether some provision should be passed which would make it impossible for those who might be so disposed to penalise men who have refused to take part in an illegal strike. It may be necessary to legislate for that, and possibly to provide, for men upon whom such an attack is made, some remedy more simple and less expensive than an action at law.
There is another point which arises out of recent events. I refer to the question of the ballot. I know, of course, that many unions have provisions in their rules which forbid the executive to declare a strike without a previous ballot, but those unions are in the minority and even where that rule is found, it is not always observed and, indeed, in the General Strike it was openly disobeyed. Upon that question of the ballot, too, I cannot, of course, pronounce to-day, but I think it is a matter which wants careful consideration and it clearly is not dealt with by the Bill which my noble friend has brought before us. There is a third point, which I mention only as one to be 80 considered, and that is the position of civil servants in connection with trade unionism. The servants of the State stand in a special relation towards the State and towards the public, and it may at least be doubted whether it should be open to them to become simply factors in the general body of trade unionism, though, of course, no one desires to prevent them from entering into a proper combination for their own protection. I believe that civil servants would be the first to agree with what I have said and to consent to their position being investigated.
There are, or may be, other matters for debate, but it is not necessary to go into them to-day. I do not say that all the dangers and abuses that have been recently discovered can be at once dealt with. It may require the consideration of more than one Bill in different Sessions. But I do say that, if it be the fact, as I believe it is, that some measure is necessary, and necessary at a very early date, then it would be a great mistake if my noble friend or others pressed for the consideration of the matters raised by this Bill, and I hope that, for the reasons that I have given, my noble friend will consent to have the debate adjourned. I will only add this general observation, arising out of that which my noble and learned friend Lord Dunedin said a few moments ago. I entirely agree with him that in a matter of this gravity you should be very careful what legislation you propose and pass. The only object which all of us have at heart is, first; to protect the public as a whole against attack; and secondly, to protect the workers themselves and their dependents from illegal or intimidating acts. I think our proposals should be limited to dealing with abuses of that kind, and I am sure that the House will be satisfied that nothing that we propose can be said, except by gross misrepresentation, to involve an attack upon the trade union system.
§ LORD BANBURY OF SOUTHAM
I think I understood the noble and learned Viscount to ask me if I would consent to an adjournment of the debate. After that which the noble and learned Viscount has said, I should certainly he willing to do so.
§ On Question, Motion agreed to, and debate adjourned accordingly sine die.