§ 3.28 p.m.
§ Order of the Day for the Second Reading read.
§ LORD LINDGREN
My Lords, I beg to move that this Bill be now read a second time. It is a short Bill with a simple purpose. If I may attempt to put it in a nutshell, its purpose is to make it no longer a ground for legal action, in the circumstances of a trade dispute, to threaten to break a contract of employment. The existing law on this matter was laid down in a recent decision of this House, sitting in its Judicial capacity. This was the decision in the case of Rookes v. Barnard, and it might be helpful if I were to recall the main facts of that case and of the decision.
Rookes was a draughtsman employed by the British Overseas Airways Corporation. He was an active member of his union, but he had a difference of opinion with it and resigned. The union had 100 per cent. membership among the draughtsmen at B.O.A.C. and wished to preserve this situation. It threatened, therefore, to strike unless Rookes was dismissed, and the Corporation yielded to the threat. Rookes then claimed damages against three men who held official positions in the union.Two of them were employees of B.O.A.C. and one was a full-time official of the union. Rookes was successful in his action before the judge of first instance, lost before the Court of Appeal and was finally successful under a decision of this House. The ground of the decision was that the defendants had secured Rookes' dismissal by unlawful intimidation, and their action was not protected by the Trade Disputes Act, 1906. They had been guilty of unlawful intimidation because they had threatened to break their contracts of employment, and to break a contract is an unlawful act.
The decision caused a great deal of concern among trade unions. The implications of the case were a subject of debate among lawyers, and no one could really say how far its repercussions might extend. It seemed pretty clear that the effects of the case were not limited to the precise circumstances of Rookes v Barnard.It was also pointed out that 19 nearly all strikes, official and unofficial, involved breaking contracts of employment and might, therefore, be said to involve unlawful intimidation. I do not want to explore the legal implications any further than that. What I want to emphasise more particularly is the doubts and confusion which the decision created in the minds of ordinary trade unionists and trade union officials. As they see it, the threat of the Rookes v Barnard decision now hangs over every strike and the events leading up to a strike.
It may be that, in fact, in many cases, the actions of those calling and those taking part in strikes are within the law; but the ordinary worker and the ordinary trade union official are not legal experts, and they cannot be expected to know with any assurance how they stand in a particular set of circumstances. All they know is that they may be sued for intimidation. This is bound to hinder trade unions in their normal day-to-day activities. You cannot negotiate freely if you are afraid that a slip of the tongue may possibly land you in court. Yet it is on free and uninhibited negotiations between employers and unions that our whole system of industrial relations depends. That is why the Government have introduced this Bill, and why I am commending it to your Lordships' House for Second Reading. The Bill is intended to restore the law to the state it was in, or was thought to be in, before Rookes v Barnard.Before the decision, the law struck, or was understood to strike, an even balance between the two parties to the collective bargaining process. It has been the aim of Parliament for the last 100 years to strike such a balance. This Bill is in the line of a crucially important series of statutes designed to safeguard the freedom of action of those taking part in strikes.
It is tempting, when a measure affecting the activities of trade unions is going through Parliament, to suggest that it should be adapted to carry out all sorts of desirable reforms (as the authors of the suggestions see them to be) in industrial relations. Several such suggestions were made during the passage of the Bill in another place. Let me say straight away that the Government are not unsympathetic towards the general intention of some of these suggestions, but we have come to the view that this Bill is not the place 20 in which to take up a position on issues which are not strictly relevant to the Bill's simple purpose. We have taken this view primarily because we do not want to pre-judge the findings of the Royal Commission on Trade Unions and Employers' Associations. We want them to have the chance to consider, in a balanced way and on the basis of much inquiry and quiet reflection, what the basic problems of industrial relations are at the present day, and the solutions to them which would be most appropriate.
As I have said, the Bill is in the line of all trade union legislation before it. It extends its protection to persons taking part in any kind of trade dispute as defined in the Trade Disputes Act, 1906. Trade union law makes no attempt to distinguish between unofficial and official strikes, between strikes in breach of procedure and those not in breach of procedure, or between strikes causing injury to a third party and strikes not causing such injury. The Bill follows the rest of the law in this field in making no such distinctions. I am not saying that there is not a case for at least considering whether such distinctions ought to be made in trade union law. What I am saying is that it would be inappropriate to introduce such fundamental distinctions into the one part of trade union law represented by this Bill, and at a time when we have just established a Royal Commission to look at all these problems for us. The question may be asked: why have the Bill at all before the Royal Commission report? The answer is that the situation created by Rookes v. Barnard cannot be left for the time it will take the Royal Commission to report. In fact, if we did leave it, the feeling in the trade union world would be so bad that the Royal Commission would very likely fail to get the co-operation from the trade unions which is absolutely necessary if it is to carry out its task properly.
I expect (I hope that I am wrong, but I fear that I am right) that we are going to hear a good deal this afternoon about the closed shop. Discussion of the Bill has come to be tangled up with the question of the closed shop because the case of Rookes v. Barnard happened to revolve around the closed shop question. But, as I have already pointed out, the implications of the Rookes v. Barnard decision go much wider than the closed 21 shop, and, as a consequence, the scope of the Trade Disputes Bill is also much wider. In fact, like the rest of trade union law, it extends to trade disputes of every kind. I think it is a pity, therefore, that so much of the argument about the Bill has centred on one particular issue of industrial relations, the closed shop—an issue which gives rise to only a fraction of the disputes that occur.
I do not intend this afternoon to enter the lists either for or against the closed shop. I will content myself with making just two observations. One is that the closed shop is clearly a matter of the kind which the Royal Commission will be considering. My other observation is that there is something to be said on both sides of the closed shop question. There are no clear rights and wrongs about it. I would commend to your Lordships Dr. W. E. J. McCarthy's balanced account of the subject in his hook.The Closed Shop in Britain. The experience of other countries like the United States teaches the same lesson. The issues are by no means so simple as they appear at first sight.
Let me mention briefly the main provisions of the Bill. The heart of it, of course, is Clause 1. This provides, first of all, that an action of tort cannot be brought against a person who threatens to break his contract of employment in the circumstances of a trade dispute. It also provides that an action cannot be brought against a person who threatens that a contract of employment to which he is not a party will be broken. This is to cover the position of a person like Silverthorne, one of the defendants in Rookes v. Barnard, who, as I mentioned earlier, was a full-time union official and therefore could not be said to have threatened to break his own contract of employment. Finally, the clause provides protection for a person who threatens to induce someone else to break his contract of employment. This is, of course, designed to protect the trade union official in the position in which he normally finds himself in a strike situation—that is, calling others out on strike.
As is to be expected, the Bill applies to all acts committed after it becomes law. The second part of Clause 1 explains the situation in regard to acts committed before the Bill becomes law. If proceedings in respect of such acts are 22 commenced before the Bill becomes law or within six months of its becoming law, they will be settled in accordance with the law as it is now. So plaintiffs have a period of grace of six months in which to bring actions, the rights to which accrued before the Bill becomes law. Clause 2 is purely formal.
My Lords, I hope that this Bill will receive your support. If it passes into law, it will be welcomed by trade unionists. It will also pave the way for the work of the Royal Commission. It is, therefore, as a most important contribution to good industrial relations that I commend it to the House. I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Lindgren).
§ 3.42 p.m.
§ LORD CONESFORD
My Lords, the noble Lord, Lord Lindgren, has introduced the Bill in a commendably short and clear statement. This is, indeed, a short, important and highly controversial Bill. It passed its Third Reading in another place by a majority of 11, both the Opposition Parties voting against it. When it went before a Committee of another place there were seven crucial Divisions on Amendments. In four of those seven Divisions the Government majority was one; in two of them it was two; and only in one Division did the Government majority amount to as high a figure as three. In the Committee of another place it so happened that there was no representative of the Liberal Party. I would remind the House also that the Bill is not one which the Socialist Party thought fit to mention in their Election Manifesto. It is not a measure for which they either sought or obtained any mandate.
In my speech on November 11 last, the first time I spoke in this Parliament, I dealt with the Bill that was then foreshadowed in the Queen's Speech; although at that time, of course, we had no details of it. I tried to explain, as simply as I could, the great issues involved, and I pointed out the dangers of simply reversing the decision of Rookes v. Barnard, if that was indeed what was intended. My view was, and is, that the Statute Law affecting trade unions is certainly capable of improvement, but that the questions raised by trade union 23 legislation are extremely complicated: they are very difficult indeed. This legislation not only affects trade unions and their officials, and not only employers and employees, but has the widest repercussions on third parties, on the ordinary members of the public and on individual human rights.
By far the best thing, I suggested in my speech on that occasion (as I had suggested in the last Parliament), was an expert examination of the whole problem by a Royal Commission or a similar body; and it will be remembered that the noble and learned Viscount, Lord Radcliffe, gave very strong support to such a step in his address to the Law Society's national conference last October. Perhaps I should remind the House that Lord Radcliffe was not one of the Law Lords who heard Rookes v. Barnard,but he was one of those who heard the subsequent very important case of J. T. Stratford & Son Limited v. Lindley, a case much cited in the same connection, in which the learned Law Lords discussed, as, indeed, had the Court of Appeal, some of the issues involved in Rookes v. Barnard.
The Government, I am delighted to note, have now decided on a Royal Commission to consider,inter alia, the law on the subject of trade unions; and the noble and learned Lord, Lord Donovan, with characteristic public spirit, has agreed to preside over it. My regret—and it is a very strong regret—is that the Government should have decided on a crude reversal of the law without waiting for the Royal Commission's consideration of this most difficult subject and for the Commission's recommendations about it. What is the excuse for thus anticipating the consideration and recommendations of the Royal Commission? The excuse is, as the noble Lord, Lord Lindgren, explained in his speech, the allegation that at present trade union officials are in so much difficulty that a temporary measure is necessary to enable them and other trade unionists to play their proper part in industrial negotiations. Is that excuse valid? If I suggest that it is not, that does not mean that I am without sympathy for trade union leaders when they are puzzled by the decision in Rookes v. Barnard.
24 I was not without sympathy with the noble and learned Lord who sits on the Woolsack when he mentioned (when replying to the debate in which I took part and to which I have referred) the absence of agreement about what precisely had been decided by that case. I quite see that there are a number of difficult points on which confident assertions may at present be impossible. The case has already given rise to a considerable literature (read, I suppose, mainly by lawyers) in which academic lawyers of distinction have taken very different views. I might mention, for example, that Professor K. W. Wedderburn, Professor of Commercial Law at London University, has had articles in the Modern Law Review, and, indeed, has recently published a popular book which takes a very hostile view of the decision of the House of Lords in Rookes v. Barnard. A very different view has been taken by a most distinguished lawyer, Professor C. J. Hamson, Professor of Comparative Law in the University of Cambridge, in important articles in the Cambridge Law Journal. I speak now from memory, but the noble and learned Lord, the Lord Chancellor, will know whether I am right or wrong when I say that the views of both those learned Professors were in fact brought to the notice of the House of Lords at the hearing of Rookes v. Barnard. If I may add one more to the distinguished lawyers who have discussed the case, there is Mr. L. H. Hoffmann, who has an important article in the January number of the Law Quarterly Review.
My Lords, I agree with the noble Lord, Lord Lindgren, and others that when this decision was first published there was considerable alarm among many trade union officials, who wondered how far the case might extend and how many of their perfectly normal activities might bring them within the danger of the law. That extreme alarm was quite short-lived for two reasons which I mentioned to the House in my previous speech. The first was that the Law Lords themselves, in the second case to which I referred—Stratford v. Lindley—pointed out that the decision in the Rookes v. Barnard case did not have most of those effects which, at first sight, a certain number of laymen feared that it might have. I do not limit myself to that, 25 because, not unnaturally, the Trades Union Congress itself took counsel's opinion. Though, of course, there were things in Rookes v. Barnard about which they were not happy, counsel's opinion was on the whole extremely reassuring and certainly pointed out that there need be no such fears about ordinary procedure as had been suggested in some quarters.
I do not wish the House to think that these are mere statements by a layman—although one who happens to be a lawyer who some eighteen years ago wrote a little book on trade union law—and, if I may, I should like to quote a passage from the article on Rookes v. Barnard by Mr. Hoffmann in the January issue of the Law Quarterly Review:Some writers and union spokesmen said after Rookes v. Barnard that its effect was to make any union official who threatened a strike liable for intimidation, and that a coach and four' had thereby been driven through the Trade Disputes Act. This goes too far. The case does not decide that an employer who makes concessions under threat of a strike can afterwards sue the union officials for intimidation. It has been suggested above that, as a matter of common law, a threat to break a contract with the plaintiff should not be treated as intimidation.Then comes a sentence which I should like to bring to the special notice of the House:What the case does decide is that the threat of a strike in breach of contract cannot be used to compel an employer to inflict loss upon some third party.I quite agree, of course, that it would be very convenient for a trade union leader not to have to take any thought on the matter at all, and to know that he would not be liable under the law for whatever he did. But if he does have to pause for a moment before recommending or promoting a strike in breach of contract for the specific purpose of compelling an employer to inflict loss upon a third party, is it really so very undesirable? Of course I understand that a trade union official may greatly prefer a guarantee of complete immunity in respect of whatever he does in the way of threatening a breach of contract, and the reversal of the law that decides that in certain circumstances he may he liable would be very convenient for him. It is far less pleasant for the third party. After all, there is the question of the man who suffers from the intimidation. Under the existing law he may have a 26 remedy. It is a rare case in which he has a remedy, but in some cases he has. Are we quite certain that we never want anyone in the position of Mr. Rookes to have a remedy again if he is the victim of intimidation at Common Law?
I asked a Parliamentary Question about the Universal Declaration of Human Rights and the promotion of this Bill in this House on February 23 of this year, and it was answered by the noble Lord, Lord Lindgren. I found it then extremely difficult to get from him a simple answer to the question whether the Government wished that in future any man treated as Mr. Rookes was treated should have no remedy. Noble Lords, if they are interested, can turn to the Hansard and read the questions and answers. They will find that it was very difficult indeed to get a clear statement by the noble Lord that the object of the present legislation was to reverse the decision in Rookes v. Barnard and to make quite certain that any future injured party should have no remedy. I am glad that the noble Lord has been a little more forthcoming on the present occasion, but I am also going to quote from the clear statement of the right honourable Gentleman the Minister of Labour during the Committee stage discussions in another place. I can give the whole passage if desired but I think it enough if I quote this portion of a sentence:…the purpose of this Bill is simply to reverse the House of Lords' decision in the Rookes v. Barnard case …"—[OFFICIAL REPORT, Commons, Standing Committee A, 23rd March, 1965; col. 63.]In my speech of November 11 I pointed out that if reversal was indeed intended, there were two possible methods of bringing it about. At that time, no Bill had been printed. I said that it would be possible to amend the Common Law regarding the tort of intimidation, or, secondly, it would be possible to provide a new immunity to commit the tortious act concerned in contemplation or furtherance of a trade dispute. When this Bill was printed I looked with great interest to see what course the Government had chosen between these possible methods of reversing the law. In regard to the tort, they leave it quite unaffected, except in cases of acts done in contemplation or furtherance of a trade dispute. 27 Apart from that, the tort is wholly unaffected. On the whole, I am glad of that. That, at any rate, does not prevent the development of our law, apart from trade disputes, in a way that many writers believe to be highly hopeful and desirable.
I am a little astonished at this decision of the Government, for this reason. I disclosed to the House when I spoke before and I disclose it again, because I wish to be perfectly frank with the House, that the decision in Rookes v. Barnard took me by surprise. That was not because I was ignorant of or misunderstood the Trade Disputes Act, but because I was not sufficiently acquainted with the Common Law tort of intimidation. I would plead in defence of my ignorance that it was strongly contended by the noble and learned Lord now on the Woolsack, who argued the case for the defendants, both in the Court of Appeal and in the House of Lords, that there was no such tort; but all the Judges—the Judge in the Court of first instance and the whole Court of Appeal and all the Law Lords in the House of Lords—said that there was such a tort.
I may say that of the three cases on it that appear in the books one was heard in 1620, one in 1709, and the one most relied on in the present case, Tarleton v. M'Gawley, was decided by Lord Kenyon in 1793. So your Lordships will understand that this particular tort is not one which we constantly meet in the books. Nevertheless, what was said about these cases in Allen v. Flood in 1897, and what was said in the case which it is the purpose of this Bill to reverse, shows that it is an important tort in our law.
There is a remedy for intimidation which, if the intimidation is by threatening breach of contract in contemplation or furtherance of a trade dispute, this Bill proposes to abolish. This Bill does not abolish or even amend the definition of the Common Law tort, but, in effect, it provides a new defence, additional to any defence that has hitherto existed under the Trade Disputes Act, 1906. A good deal was said in another place, and a good deal has been said in the Press, about the Trade Disputes Act, 1906, as though this decision of the House of Lords was a decision against a trade union. Of course, it was not. The immunity of the 28 trade union under Section 4 of the 1906 Act remains absolutely unaffected. The trade union is completely and absolutely immune. But in addition to the complete immunity of the trade union under Section 4, under Sections 1 and 3 there are certain immunities given to individuals, if acting in contemplation or furtherance of a trade dispute. To these, this Bill proposes to add the threat of breach of contract and this, in the Government's view, will reverse Rookes v. Barnard and prevent anybody from recovering damages for intimidation in these circumstances.
The first thing I want to do is to put a question to the noble and learned Lord the Lord Chancellor, who is answering the debate. I am sorry that he is not on the Woolsack at the moment, but I know that a message will be taken to him. Is he quite confident that the Bill as drafted achieves the object described by the Minister of Labour, in the passage I have quoted, as reversing Rookes v. Barnard? The reason I ask this question is that the noble Lord, Lord Lindgren, in reading out a passage from Clause 1, left out one extremely important word, "only". The clause says that the act… shall not he actionable in tort on the ground only that it consists in his threatening—(a) that a contract of employment…will be broken…".I think that the noble Lord is probably right, that this is sufficient to ensure that Rookes v. Barnard is reversed; but it does not seem to be quite so obvious as he assumed—for this reason: in order to constitute the tort of intimidation (I quoted the passage on the last occasion and will just repeat the necessary words), the threat has to bewith the intention and effect of intimidating any other person into acting in a certain manner to the harm of the plaintiff.It may be thought that if we mention only a breach of contract and say nothing about the motive, the presence of which would bring it within the mischief of the tort of intimidation, we are not preventing it from being actionable by a form of words which says that it shall not be actionable "on the ground only." I think I have probably made the matter sufficiently clear for a message to be taken to the noble and learned Lord the Lord Chancellor. The question is whether he is quite confident that the 29 words are sufficient to reverse Rookes v. Barnard, notwithstanding the omission of all mention of the motive for the breach of contract. Needless to say, taking the view I do, I do not in the least wish to improve the Bill by strengthening it in this particular regard, but I have always regarded it as the duty of any lawyer speaking in this House to draw the attention of the House to the possible effect of measures which they are considering. It would be a very odd result if, after this measure had been put in its present form into the Statute Book, a future case showed it to be ineffective in providing a complete answer to an action for intimidation.
Now I come to the reason why I am so anxious that Parliament shall not pass this Bill as it now stands. Of course, we will give it a Second Reading, as we always do to any Bill that comes up from another place as this Bill has come. I agree with part of what the noble Lord, Lord Lindgren, said about the closed shop. It is perfectly true that this Bill does not deal specifically with the closed shop. I agree with the noble Lord further, that the closed shop is not a very easy question, nor are all the rights on one side or the other. On the whole, I regard it as a suitable matter to be considered by the Royal Commission, but, surely, subject to this proviso: that we must not do meanwhile something that enables a really intolerable tyranny to be exercised.
I am not going to condemn the whole idea of a closed shop in every case. Let me remind your Lordships that if there is a closed shop—let us assume in a monopoly industry—nobody can earn his livelihood in the industry unless he is a member of a particular trade union. Let me remind your Lordships further that he has no right to join that trade union the trade union can simply say, "No". I am not suggesting that a trade union would normally say, "No". But I say, further, that a man may fall out with his trade union, and they may say that he cannot go back to them. Again there would be no remedy. What would happen in such a case? In such a case, a man could be completely deprived of the possibility of making his living in his chosen trade. Surely this is something that we should look at most carefully. If there is an existing right that protects a 30 man at the moment, we should carefully consider the matter before we abolish that right.
I have previously reminded your Lordships, and I hope I may do so again, of Article 20 of the Universal Declaration of Human Rights, which was approved by the General Assembly of the United Nations in 1948. That says:1. Everyone has the right to freedom of peaceful assembly and association.2. No one may be compelled to belong to an association.That is the Universal Declaration of Human Rights. The Government say that they approve of this Universal Declaration. I am not going to make any dogmatic statement on what duty, if any, the signature to that Universal Declaration puts upon the Governments who approved it. I am not saying that it puts upon them a duty to legislate. But if they find that in their law, as it stands, there is a legal protection of a man against being intimidated to join an association, or against being punished because he refuses to do so, can anybody be quite happy in reversing the law and taking that protection away?
Take, for example, the man Rookes. I know nothing more than what has been said in the headnote, and so on, about the merits of Mr. Rookes. I make no assumption about him at all, except what we know—namely, that he had fallen out with his union and was unwilling to rejoin it. When the union officials thereupon intimidated his employers in order to induce them to dismiss him, and they yielded, it was found that he had a remedy. What will be thought of the British Parliament if it says at one and the same time that it approves the Universal Declaration of Human Rights, that no one shall be compelled to belong to an association, but it is also prepared to carry into law a Bill that deprives him of his remedy against people who threaten, in breach of contract, to destroy his livelihood because of his refusal to join. That is what this Bill, if it is enacted, will do. I therefore think that when we reach the Committee stage we should try to see whether we cannot amend it so that the total effect of the Bill does not have a result quite so outrageous.
The noble Lord, Lord Lindgren, said one thing which I, frankly, very much 31 regretted, though I accept it from him that he is right. He said, in effect, that the T.U.C., or the trade union leaders, would not have collaborated in giving evidence to the Royal Commission, and the rest of it, unless a Bill on these lines had first been promised. If that is true, I, as one who has known and been friendly with a number of eminent trade union leaders, can only express my profound regret. I am particularly sorry that the noble Lord, Lord Williamson, is unable to be here to-day; he told me beforehand how sorry he was, too. When I think of the quality of men like the noble Lord, Lord Williamson, and others, I very much regret the suggestion that, had this Bill not been produced or promised, they would not have given the benefit of their experience and advice to the Royal Commission. I share the desire of these men for further clarification of the law, and I should have trusted that, without any promise whatsoever, they would give the benefit of their experience and their wisdom to the Royal Commission. What I say is not right is that, before the Royal Commission has reported, or even considered the matter, we should have this one-sided revision of the law.
I ventured to quote on the last occasion the well-known words from Measure for Measure:O, it is excellentTo have a giant's strength; but it is tyrannousTo use it like a giant.The trade union world, if they are really demanding this measure without any consideration of how it conflicts with the Universal Declaration of Human Rights, and if they are not prepared, without this measure, to give the benefit of their experience and advice to the Royal Commission, are, I think, tarnishing their image greatly, and, in my view, quite unnecessarily.
I say, further, that Her Majesty's Government must be very far from having a just sense of values, or a knowledge of popular desires, if, surveying the entire world of industrial relationship, they come to this conclusion: that the one urgent matter of reform of trade union law which brooks no delay whatever is a reform to remove all redress from certain threats to break contracts. That really is not the view of the public. It is strange that 32 this Bill should come to us for Second Reading immediately after the Whitsun holidays, during which a few men, striking in breach of an agreement which their trade union had negotiated, inflicted immense losses on their employers and immense injuries on innumerable members of the public, without there being, apparently, any redress for anybody, and without the union even saying that they were sorry. It really is preposterous to assert that the most urgent measure of trade anion reform at the present moment is a reform to do away with all liability for threatening breach of contract. On the contrary, few things are more desirable in this country than that people should have a little more respect for the obligations into which they enter.
If it were true, as I suggest that it is not, that without this Bill it would be impossible for trade union leaders to carry on their ordinary work, then we should have to do something—though even then I think we could have provided more protection than is here given to third parties. But when, from what was said in a subsequently decided case, from counsel's opinion given to the T.U.C. itself and, lastly, from the comments of some of the academic writers, it is clear that the case of Rookes v. Barnard does little beyond making it dangerous to threaten a strike in breach of contract for the specific purpose of causing an injury to a third party, then, my Lords, I suggest that this Bill is unwise and ill-considered.