§ 6.13 p.m.
§ Debate on Second Reading resumed.
§ LORD CITRINE
My Lords, like the noble Lord, Lord Blyton, I am a trade unionist. He was a miner, and I was an electrician, and both our unions have a reputation for militancy and being undeterred by legal penalties from doing the things they thought were justified in the interests of their members. My noble friend Lord Lindgren told us in opening this debate that this Bill restores the law as it was prior to the decision of Rookes v. Barnard. The noble Lord, Lord Conesford, has told us what those of us who have been engaged in trade unionism for many years as members and officials already know, that trade union law is very complicated. It has been my experience of over 50 years, 33 of them as an acting official, that in point of fact there are many lawyers who do not understand it.
59 The noble Lord, Lord Conesford, for example, who is always extremely careful in documenting himself completely and thoroughly when he addresses this House and who is, of course, an eminent lawyer himself, told us that he was not sure whether in fact the Bill did restore the position to what it was prior to the Rookes v. Barnard decision. He implied, it seemed to me, that there were other grounds upon which it would be found in all probability, or possibility, that there were still avenues of prosecution of trade unionists for breaches of the law which they are not now conscious of.
This is not the first time that Parliament has set out to restore the law. Indeed, I think it can be fairly said that the history of trade unionism has been one of Parliament enlarging the functions of the unions as the years have gone by, and of the courts restricting those functions by various legal decisions which Parliament ultimately was called upon to change in a more favourable manner to the trade unionist. The greatest change of that kind that I can recall was that of the Trade Disputes Act and Trade Union Act, 1906, certain effects of which have been, in the eyes of trade unionists, gravely upset by the decision in Rookes v. Barnard, and which this Bill seeks in substance to re-establish.
I took the trouble to look up some of the speeches that were made on the Trade Disputes Bill in November, 1906, and one of the Members of another place—I quote from THE PARLIAMENTARY DEBATES, Vol. 164, col. 890, 9th November, 1906:submitted that whatever else was doubtful about the Bill"—that was the Trade Disputes Act, 1906—one thing was clear, and that was that it was an attempt—an honest and generous attempt, as he believed—to get back to a position which the public had always understood was secured by law to trade unions.Later on in the same debate he said:This was not the only occasion on which great Courts and great Judges had produced great surprises by their interpretation of some of the legislative efforts of this House. It was wonderful how quickly lawyers could persuade themselves that they had never held opinions which subsequently proved to be erroneous.Then that same Member said: 60But there was a much more important question than what the opinion of lawyers was on this subject, and that was, what was the opinion of the country, what was the opinion of the public, on this question from 1871 onwards?".The Member who made that statement was not an obscurity. He rose to be an eminent lawyer, and enjoyed a position of high office under the State. It was the man who became Sir John Simon, and later Viscount Simon. To the credit of the Liberal Government, despite the intense opposition they had to face in 1906, they did pass that Bill. It has been regarded by trade unionists as very much their charter. What was the law supposed to be? Evidently, according to the stages through which the case of Rookes v. Barnard passed, the appeal courts did not know. They thought that the law covered and protected the people who were concerned in the Rookes v. Barnard case. The noble and learned Lord the present Lord Chancellor certainly thought that in his most eloquent and, to me, convincing speech in support of the defendant.
Trade union officials like myself who have a smattering of legal knowledge about the functions that were legislatively committed to the trade unions, shop stewards and members, were all firmly convinced that they were covered against actions of the kind which arose in Rookes v. Barnard and that they were thoroughly protected by the law. Even the noble Lord, Lord Conesford, said to-day that he was surprised at the decision, and he told us that he had written a book upon trade union law. He did not explain the grounds upon which he was so surprised, but the mere fact that he could be surprised showed that the decision in some respects did not conform to what he previously conceived to be the law.
I would emphasise that this Bill does not extend the law in regard to the trade unions. It tries as best it can to put the law back where it was. It could easily have altered the law in a manner more favourable to the trade unions by the alteration of one word—namely the word "only"; and had I been the Secretary of the Trades Union Congress at the time this decision was given I should have urged the Government of the day to do that in order to put the matter beyond the doubts which evidently arise 61 in the minds of the noble Lord, Lord Conesford, and others. But the Government resisted the temptation to do this and in simple language confined the Bill entirely to restoring the position as they. saw it.
It has been asked many times: Why this Bill now? Why not wait for a Royal Commission? Of course, on a complicated subject like this, traversing, as it must do, not merely this decision, but the activities of the trade unions and the employers' organisations generally, a Royal Commission can hardly be expected to report in a matter of a year or so. I have some knowledge of how long it takes for matters to get into legislation. All sorts of consultations have to take place, and after it appears that legislation is necessary it is surprising how much contention there can be before that legislation is actually put into law.
It has been said that the trade unions are in no danger. To whom do we look for authority on that? We know perfectly well, as we have been told by the noble Lord, Lord Conesford, this afternoon, that certain lawyers believe the position to be right while others question it. Who are we to look to for a pronouncement of authority upon whether or not the trade unions are in danger? Like the noble Lord, Lord Conesford, I have read the advice given to the Trades Union Congress, but that advice did not settle it. It did not satisfy the trade unions which attended the Congress immediately afterwards. They suspect, as I suspect, that doors will be open by what I deem to be the sophistry of the Rookes v. Barnard decision, and that the trade unions will find themselves in quite unexpected difficulties, and as wise men they are not going to take the risk for five years, or whatever the period may be, while a Royal Commission is investigating and while legislation is being prepared.
The noble and learned Lord the Lord Chancellor in another capacity said during the case of Rookes v. Barnard that if the plaintiff's case was established it would be driving a coach and horses through the 1906 Act. I do not think any of us would disregard an opinion of that kind from an eminent lawyer and one who was probably (if I may say it here, without undue flattery) at the highest point 62 he could attain at the Bar—it would drive a coach and horses through the Trade Union Act.
§ LORD CONESFORD
My Lords, I am sure that the noble Lord, Lord Citrine, draws a distinction between what the noble and learned Lord the Lord Chancellor said in part of his argument as an advocate and what he says as a Judge.
§ LORD CITRINE
My Lords, I do not quite understand. There is evidently a code of morality operating among eminent lawyers that I do not share.
§ LORD CONESFORD
I am certainly saying nothing against the proper conduct of the noble and learned Lord the Lord Chancellor, whom I regarded as the greatest advocate at the Bar, but I do not think that any advocate at the Bar wishes what he puts forward as part of his argument, although he may still believe in it, to be taken as having the same sort of force as his opinion given judicially would have.
§ LORD CITRINE
My Lords, I do not think I need attempt to answer that as I imagine the noble and learned Lord the Lord Chancellor will find himself quite capable of dealing with that point.
This decision in Rookes v. Barnard has imported a degree of intimidation that I never suspected. In the trade union movement we always thought of intimidation as in the category of using violence or menaces. There was no such suggestion in this case. It was discovered that injury and a threat to cause that injury was in fact intimidation. I do not think many people knew, prior to that decision being given, that although they were as trade unionists protected against criminal proceedings, they were liable to civil proceedings. I think that point rather surprised them when this decision was given. Whether we like it or not, a decision on intimidation has been carried very much wider than most people in the trade union movement believed it to be. When does a warning become a threat? If a trade union officer goes to an employer and makes a statement, however carefully worded, to the effect that the employer may find himself denuded of the majority of his employees if certain things are not done, is that a warning or a threat? Who is to determine the inflexion used in discussions of that kind? 63 We know how easy it is by means of the voice to change the meaning of words very substantially indeed.
I say it is too dangerous for the trade unions to risk for a period of five years, and it is too dangerous, in my opinion, to leave the issue to judges to determine. I do not want to embark on that question, but I am quite sure that sooner or later in issues of this kind there will have to be unanimous decisions reached in the highest courts of law. There must be no decisions by a majority vote. I know, of course, that that does not apply to this immediate case, but none the less it is something which will make us a little more secure from the vagaries of interpretation of eminent Judges.
In another place—I was tempted to say "the House of Commons", because I cannot understand why we who receive Bills from the House of Commons stamped on the back, "Brought from the House of Commons" have to pretend in terminology not to know that such a place exists and are required to call it "another place"; surely the modernisation which is called for in industry might be applied a little to the proceedings of this House. However, in the House of Commons—I am trying to be logical—one of the principal points which was brought forward was that this would put a premium upon unofficial strikes, strikes in breach of contract. I ask myself this question. An employer under the present law can prosecute men who cease work in breach of contracts. Why do they not do so? How many cases of that taking place have we read of in recent years? Have we in the last fifteen years or so heard of a case in the mining industry of prosecution taking place for breach of contract?
§ LORD CITRINE
Yes, I am sorry for the error; I really meant suing in the courts; it is summary jurisdiction and that perhaps mislead me. But the fact is that that remedy is not used.
There is a moral behind that, and the moral is that the employers know that their relations with the workpeople cannot be settled by law, no matter what the law prescribes. If these men go back to 64 work after being fined, or whatever it may be, by a court for a strike in breach of contract, what frame of mind are they in? Every intelligent employer knows that the good will of the employees is one of the strongest assets he has. Is he going to throw that asset away to pursue some legal remedy which might in itself prove to be completely inefficacious? I say that because I do not know the mechanism by which the law can force a miner to go down the pits with a non-unionist or anybody of that kind. I do not know the law which can force trade unionists to work alongside people who they deem are concerned only with avoiding their obligations to the unions and payment of the contribution to sustain the union activities in providing the very conditions that they enjoy.
It is, of course, said, and has been said many times: why do not the unions discipline their members? But the people who make these statements have not given ten minutes' consecutive thought to what the disciplinary powers of the unions are. Let me give an illustration. In London Transport, when Mr. Bevin was Secretary of the Transport and General Workers' Union, they had several unofficial strikes, contrary to union instructions and union agreements. The union brought these men before their executive body, and after careful examination of their powers excluded those men from the Union. But did that end the story? Oh no! The men went on working in London Transport, and eventually they formed a breakaway union. I think it was called the London Passenger Workers' Union, though I am not absolutely sure. And London Transport was in the unique position, because of legislation of a Conservative Government in 1927, that they could do nothing about it. I mention that because it is impossible to solve these matters so easily by legislation. Trade unions are voluntary organisations; they depend upon the loyalty of their members; they depend upon the sense of understanding that the members have for the benefits that are provided through trade union organisation. I think it would be utterly wrong to put workers in the position of trying to force them, infringing their collective liberty, to work with non-unionists.
The other issue that was raised would, I suppose, be described by its supporters 65 as a moral issue. That is the moral issue of the majority of the men in a shop saying "We will not work with so-and-so while he remains outside the union". The noble Lord, Lord Conesford, with his usual diligence, as I said in his absence earlier this afternoon, put a Question, I think on February 23, in this House as to the Declaration of Human Rights passed in the United Nations in Paris in 1948. He quoted Article 20 of that Declaration, and one of the points in that Article was that nobody should be compelled to join an association. Having regard to my estimate of the thoroughness of the noble Lord, Lord Conesford, I wondered why he stopped there. No mention was made of trade unions in that Article, but there was another Article, Article 23, which especially dealt with trade unions. It is quite clear, by analogy of reasoning, anyhow, that if it had been intended that Article 20 should include trade unions they would have been mentioned by name. Why mention by name in one Article and not by name in another Article?
My researches have perhaps gone a little further than Lord Conesford's. I found, on reliable information, that the British Government voted against Article 20 on the ground that it could not be implemented. I do not know whether the noble Lord, Lord Conesford, was aware of that.
§ LORD CONESFORD
My Lords, if the noble Lord is seriously saying that an association under Article 20 does not include a trade union I think he is wrong; but no doubt we shall hear about that. I think the reason why a trade union is specifically mentioned, not in the whole of Article 23 but in subsection (4) of that Article, is quite obvious when you read it. But I really think that the noble Lord is on a bad point when he suggests that "association" does not include a trade union.
§ LORD CITRINE
I am not making any charges. Perhaps human energy failed at Article 20 and did not carry on any further. I do not know. I only know that the noble Lord quoted one Article when there was another, only three paragraphs or so further on, which he did not quote. If I were drawing up an agreement as a trade unionist with an employers' organisation I should mention the union 66 by name. I would not trust to ambiguous language, such as was in that Article, and I think I am justified in saying that, at least by analogy of reasoning, Article 20 was not intended to apply to trade unions. I cannot imagine it would be.
The United States, during the course of the war, under the New Deal legislation made it a condition that workers should belong to the prescribed trade union for the particular shop. That was compulsory trade unionism. New Zealand had for a year a law under which all workers who were subjected to an award had to belong to a trade union. We in this country know that in nine cases out of ten where the workers are organised there is 100 per cent. organisation, and no room is left for people to slide out. That of course may he said to be completely immoral, but it is common sense, and it is the sort of thing that enables a much bigger factor—what I call good relations in industry—to be maintained.
I do not want to be completely negative in what I am saying. I believe that the Royal Commission can perform a great function. It is the first one to examine this subject that we have had for many years. I would say that one of the first things that it ought to consider is consolidating the law in respect of trade unionism, and if it is possible to simplify language which now may be archaic in places, I think that would be something worth doing. To my mind, Australia has the most complete code of legislation dealing with trade unionists. It has consolidated the law into a single Act of Parliament, and it covers almost everything, even to the point of not allowing a conscientious objector to avoid paying his dues, because an amount equivalent to those dues has to be paid to the consolidated fund of the country.
That again is something we might look at. There may be really conscientious objectors, perhaps on religious grounds, who may object to joining a trade union. There may be others who, on the spur of the moment, particularly when the union increases its contribution, become conscientious for other reasons—one does not know. But what is the test? Is the test merely to be a man's own statement, "I do not believe in trade unions; I do not want to join a trade union; but I am prepared to take all the benefit that 67 a trade union has provided for me and my mates" What is the test? What is to be laid down to make such a test valuable? These things do not get by in Australia. They have to pay up. I think the Commission would do well to study the Australian legislation. Some of it would be anathema to British trade unions because it provides for compulsory arbitration, which the unions here have always hated and which has been shown to be so discredited, due mainly to the acts of the late Government.
I would ask this question. Is it not fairly probable that further investigation into this matter ought to be made by on-the-spot visits? The International Labour Organisation has visited Soviet Russia, it has visited this country and it has visited Sweden, and it has produced factual, good and quite complete reports which have been published. But when it comes to an issue of this kind, surely it is not beyond the wit of the Government, through its representations to the International Labour Organisation, to get a delegation to go round which includes perhaps some members of the Commission but is not necessarily restricted to them, actually to see what is taking place and how far it accords with the facts, as distinct from the law on paper?
Noble Lords should ask themselves what will the trade unions be doing during this period? Is it not natural that they should be considering what remedies lie open to them? I myself know quite well that there are certain remedies. If the draughtsmen's union had carried out the contract that they had made on behalf of their members, it is doubtful whether the action of Rookes v.Barnard would ever have arisen, whatever else might have happened. I imagine the trade unions are not oblivious to the importance of instructing their members to give the required notice. It may be a week's notice; it may be even shorter, because there are still workers who are paid by the hour and have no weekly contracts. One of the first things that is possible, although I am not in a position to speak for the trade unions, is that they would receive advice, perhaps from the T.U.C., not to make agreements with employers providing that there should be no strikes, official or unofficial, because it was the existence of such an agreement as that 68 which was brought into the deliberations of the High Court to buttress their decision. It was regarded as part of the contract which they broke.
It may be that the unions will say, "Cancel such agreements as now exist. Throw them overboard. Give notice, of course, but throw them overboard. Let us go back to the jungle. Let us instruct our members not to give any reasons to an employer as to why they are going to cease work."
The noble Lord, Lord Blyton, I think spoke the equivalent of a thought which was in my mind, that a union is not compelled through its members to tell an employer why those members will strike. These members can walk out after giving the required notice with, so far as I know, no legal penalties attaching to them. Do we want to go back to that? I call that going back to the jungle. In my lifetime labour relations have been vastly improved, and the measure of confidence between the trade unions and the employers has become far more intimate than it was in my early days. I say that there is a danger of provoking industrial warfare unless a Bill of this description is carried.
When I was hurriedly making up my notes in a few moments, I was wondering whether there would be any application to this case of Gilbert's song in Iolanthe, which I think goes something like this:And while the House of Peers withholdsIts legislative hand,And noble statesmen do not itch toTo interfere with matters whichThey do not understand,As bright will shine Great Britain's raysAs in King George's glorious days ".Think over those lines.
§ 6.47 p.m.
§ VISCOUNT DILHORNE
My Lords, the noble Lord who has just sat down has covered a wide field in the course of his argument. But he has, in fact, said little about the contents of the Bill, and I will, if I may, revert to his speech later. I think we have had an extremely interesting debate. In my opinion it is certainly an important one. We have had the pleasure of hearing two maiden speakers, and I should like to congratulate the noble Lords who so successfully overcame that ordeal. It is an ordeal 69 which most of us have experienced, though it may perhaps be less of an ordeal to someone accustomed to public speaking in the open air. The noble Lord, Lord Soper, has explained to me the reasons why he cannot be here this evening. In case he glances at Hansard to-morrow, I should like just to say this, that he was so obviously concerned to be uncontroversial on this occasion that he scarcely mentioned the Bill at all.
The noble Lord, Lord Lloyd of Hampstead, made what was to me a most interesting speech. He, too, was not in the least degree controversial, although I thought—and perhaps he, on reflection, will agree—that one of his observations was rather unfortunate. It was made when he was talking about Judges having outflanked the statutory authority. I am sure that he realises perfectly well that Judges do not sit down to try to outflank the statutory authority: they do their best, in the light of the arguments advanced to them, to give true effect to the intention of Parliament as embodied in the Statute. However, I am sure your Lordships will agree with me when I say that I hope we shall hear more from both Lord Soper and Lord Lloyd of Hampstead and that they will contribute again to our debates.
Before the noble Lord, Lord Lindgren, introduced the Bill I thought that I should have to express some sympathy to him, because he was tackling—and I know his views on lawyers—a subject which bristles with legal difficulties.
§ VISCOUNT DILHORNE
That, I thought, was the whole assumption and basis of the noble Lord's speech. He spoke with great clarity, and indeed with commendable brevity, and certainly I shall seek to follow his example in that respect. But he scarcely made out any case for this Bill; and he evaded, as was his object, the difficult problems raised by the Bill. I do not think that these difficulties can be ignored, and I feel that we should face them. So many of the speeches which I have heard to-day seem to me to be on the assumption that the difficulties can be ignored.
Surely the real problem—and I want to state this as dispassionately as I can—is how to reconcile the legitimate functions 70 of trade unions, of their officials and of their members with the preservation of the rights of the individual. That really, as I see it, is the problem which the decision in Rookes v. Barnard has thrown up. But for that case we should not have had any Bill, and so perhaps I may be allowed to say a few words as to my understanding of that decision. I am very glad indeed that the noble and learned Lord the Lord Chancellor, who appeared for the respondents in that case, is able to take part in this debate, and I look forward to hearing his views on what was decided in the case. I am sure that the Lord Chancellor will be the first to make it perfectly clear that a phrase used by him in the course of arguing the case, such as "driving a coach-and-horses through a particular Act", ought not to be regarded as a considered judgment of his as to the effect of the decision of their Lordships in this case.
There is no doubt that, directly that decision was given, great alarm was felt in trade union circles. That alarm has been borne witness to by speeches from noble Lords like the noble Lord, Lord Blyton, to-day. It was felt that trade union officials and members would be inhibited in the discharge of their normal functions by the fear that if they acted as they had been acting in conducting negotiations for wage increases they might find themselves in the courts. But gradually it has been realised that the consequences of this decision are by no means so far-reaching as was first thought. That decision was given on January 21, 1964, and I must say that I have failed to notice any difference in the way in which trade unions and their members have acted since then, as compared with the way in which they acted previously.
§ LORD BLYTON
My Lords, if I may rise on a point of order, I would point out that trade union officials have had instructions to be very careful in their language since the Rookes v. Barnard case was decided.
§ VISCOUNT DILHORNE
It is not for me to comment on the language used by trade union officials, but it may be that it would be improved by a little more care in its exercise. I do not think that I had better go into the language of trade union officials: I am looking only at their conduct. And, so far as I can see, I fail 71 to notice any difference between the way in which trade unions and their members have acted since that date, January 21, 1964, and the way in which they acted before. It is certainly true that the decision has had no inhibiting effect on unofficial strikes. One criticism of this Bill is that, as it is drawn at present, it may well increase unofficial strikes and the threat of them.
It has long been recognised that there was a tort of intimidation. In fact, the Lord Chancellor sought to argue that it was an invention of the writer of Salmond on Torts, but it was recognised in this case in the Court of Appeal whose decision was reversed by this House. One form of that recognised tort was to threaten to do or to procure an illegal act with the intention that the person threatened would be made to do something which he had a legal right to do but which would cause loss to the plaintiff. As I understand the decision of this House, it was held that a threat to break a contract made with the intention of inducing a person to do something he could lawfully do, with the intention of causing loss to a third party, that being the object of the threat, constituted intimidation. That was something which was not generally realised, and that was the point to which my noble and learned friend Lord Conesford was referring in the course of his speech; he was not referring to any difficulty about construing and interpreting Section 3 of the Trade Disputes Act, 1906. I hope that I have made that clear to the noble Lord, Lord Citrine.
It may be that, before this decision was given, many thought that the making of such a threat in relation to contract with such an object did not constitute intimidation at all, and that consequently, quite apart from any statutory provision, such threats could be uttered with impunity. The general law has now been clarified by the decision in the Rookes v. Barnard case. As was pointed out in that judgment, in our modern days intimidation by such threats may be far more potent than intimidaion in other ways. One thing that I can find to say in favour of the Bill is that it does not purport to redefine the tort of intimidation. As I understand it, the object of the Bill is to make it impossible for a plaintiff to succeed in an action for 72 damages for the commission of that tort in certain circumstances. It is not altering the definition of the tort but is making it impossible in certain circumstances to obtain damages for the breach.
A great deal of the Rookes case was concerned with the proper interpretation of Section 3 of the Trade Disputes Act, 1906. It may be that that section was thought to give much wider protection than in fact it does. The argument throughout by those who support the Bill and who say that there is a need for it has been that we must restore the law to what it was thought to be. In fact the noble Lord, Citrine put forward that view.
§ LORD CITRINE
I certainly did. I was making the point that if the Court of Appeal, by a unanimous decision, thought that the law gave protection, then trade unionists were justified in thinking that it did.
§ VISCOUNT DILHORNE
I am glad I did not misrepresent the noble Lord, but I am sorry that he has not studied the work by his son with greater thoroughness. His son made it perfectly clear in his book that the protection given by Section 3 is extremely limited. May I quote one passage from page 476 of the book:If there is some ground of action other than the mere fact of interfering with contractual relations. the section does not afford protection.That is a reference to Section 3 in a book written by Mr. N. A. Citrine. It is a very reliable book which I commend to the noble Lord.
§ LORD CITRINE
My Lords, although I took no part in compiling that book, I am quite sure that I know it a great deal better than the noble Viscount.
§ VISCOUNT DILHORNE
I hope this will not lead to any family feud. Obviously, there was a great disagreement between the views expressed by the noble Lord and the views expressed authoritatively by his son in this work. I think the son was right I am on his side; but I do not want to pour any more oil on these troubled waters. Perhaps I had better say that I do not think his son was alone in that opinion. Does the noble Lord want to intervene? I wish his son were here to carry on the argument.
§ VISCOUNT DILHORNE
I never mind advertising something which is so obviously correct, as was that particular passage—even when it is repudiated by the father of the author. I hope that in the light of that passage the noble Lord will say that he was a little wrong in his recollection.
May I pass on from that to say this? In the light of that passage, I certainly cannot accept for one moment that this Bill does no more than restore the position to what it was thought to be before the decision in Rookes v. Barnard. I quite see that in the light of the anxieties raised by that decision a case could be made for saying, "We want to put it beyond doubt that in the conduct of the normal negotiations for an increase of wages and matters of that sort a threat to strike will not be regarded as intimidation". If that were the case which was being put forward and contained in this Bill, the argument for this Bill would be very much stronger than it is now. One could say then, "We want to do this to remove the doubt as to the extent of the application of this tort of intimidation". But the Bill goes much further than that; it goes in my view unnecessarily far. It goes so far as to give protection which under Section 3 was not, I think, given before—protection against an action by a man in the position of Mr. Rookes, who may have been grievously wronged and who is deprived of any remedy at all.
We were told by the noble Lord, Lord Lindgren, that what one might call "closed shop cases" were very few in number, and I believe that to be the case. I am certainly not going to seek to argue the merits of, or the objections against, the closed shop to-night. All I say is that where you have it established as part of the law of the land that intimidation of one party to make him act to the injury of another is an actionable wrong, then by this Bill you are depriving the individual who is wronged of any opportunity of redress. Before any such change is made I should have thought it was far better to have the views of the Royal Commission.
Reference has been made to the Declaration of Human Rights, and, with 74 great respect to the noble Lord, Lord Citrine, I can see nothing inconsistent between Articles 20 and 23. Article 20 provides that no one may be compelled to belong to an association. As the law now stands, if efforts are made by intimidation to compel someone to join an association that person can obtain damages. What the noble Lord is seeking to do, by supporting this Bill in its entirety, is to remove that protection from the individual—protection which the trade unions, if my view of the law is right and if the view of Mr. Citrine is right, have never had.
I hope that when we reach the Committee stage we consider whether we cannot meet the anxieties of the trade unions by limiting this Bill, to make it quite clear that no proceedings for intimidation can be brought in respect of what I might call the ordinary negotiations which are conducted, but still leaving it to be the law, until we have seen the Royal Commission's Report, that the individual in the position of Mr. Rookes, who is treated in the same way as Mr. Rookes was, will not be deprived of his remedy. I think it would have been impossible to draft a Bill on those lines. I hope that it will be possible so to amend this Bill that when it leaves this House it will be on those lines, because if the noble Lord, Lord Blyton, and the noble Lord, Lord Citrine, whose sincerity on these matters I should be the last to question, felt that removing the doubt in relation to what I might call the normal negotiations would suffice, then I believe that this Bill would have a fairly easy passage.
I should like, in conclusion, to say that we shall do what we can to improve this Bill in the course of its passage through the House. My noble and learned friend Lord Conesford asked the noble and learned Lord the Lord Chancellor—unfortunately, during his unavoidable absence—this question. He asked whether he was quite confident that the Bill achieved the object of reversing the decision in Rookes v. Barnard, because he thought that the omission of the purpose of the breach of the contract was very relevant in that connection. A somewhat similar doubt was raised in the House of Commons by a Liberal Member, and I would ask the noble Lord to give serious consideration to that.
75 As I see it, there are three questions which we have to consider. First, could this Bill be drawn in such a way as to remove the legitimate anxieties, so far as they are legitimate, of trade unionists arising out of the Rookes v. Barnard case? Secondly, is it necessary, pending the Report of the Royal Commission to go further and deprive the individual in the position of Mr. Rookes of his remedy? Thirdly, if it is necessary to go to that further stage, does this Bill effectually do it? I must say that I am rather inclined to share the doubts expressed by my noble and learned friend upon that point, but it is one which I should find it extremely difficult to be positive about.
I would end on this note. I think it is extraordinary and very unusual for a Bill of this sort to be brought in immediately upon the appointment of a Royal Commission. I cannot think of any other example of it. The fact is, of course, that this Bill was brought in, as the Minister of Labour said last August, for one purpose only. He said:We will restore the legal position the unions thought they had before, on the very clear understanding that they will co-operate to the full in a broad inquiry into the position of the unions and their relationship to society.I share my noble and learned friend's views as to that kind of bargain being made by trade unions for sharing and co-operating in this task. I agree with the noble Lord, Lord Citrine. I think it is full time—
§ LORD CITRINE
My Lords, may I interject on that point? Is the noble and learned Viscount suggesting that there was a bargain between the Trades Union Congress and the Minister of Labour?
§ VISCOUNT DILHORNE
—last August, when he said:We will restore the legal position the unions thought they had before. on the very clear understanding that they will co-operate 76 to the full in a broad inquiry into the position of the unions and their relationship to society.The noble Lord can use what words he likes to describe that arrangement, but I should have thought it was fair comment to say that that amounted to a bargain. What I would say myself is that, if this Bill is the price of co-operation, I hope the price is not so great as in any way to inhibit the Royal Commission from saying—if they think it is right to say it—that this Bill, if it reaches the Statute Book in its present form so as to deprive individuals of their right to redress and in conflict, if not with the letter at least with the spirit, of the Declaration of Human Rights, should be repealed or at least drastically amended.
§ 7.10 p.m.
§ THE LORD CHANCELLOR (LORD GARDINER)
My Lords, I agree with the noble and learned Viscount, Lord Dilhorne, that this has indeed been an interesting debate. I should like, if I may, to apologise to the noble Lord, Lord Conesford, for the fact that, for reasons which were unavoidable and which were conveyed to him through the usual channels, I missed part of his speech; but I heard the rest of the debate, and it has been an extremely interesting one.
As your Lordships know, the object of this Bill is not to reform trade union law. A Royal Commission, a very strong Royal Commission indeed, has been appointed for that purpose. The object of this Bill is simply to restore the law in the field of trade disputes to what it was before Rookes v. Barnard was decided. Of course, if you are going to do that, it is impossible at the same time to make exceptions and to say, "While Rookes v. Barnard in the law it laid down was no more concerned with the closed shop than with strikes for other purposes, and while Rookes v. Barnard was no more concerned with unofficial strikes than with official strikes, instead of putting the law back to what it was we will change it and make an exception for a closed shop. or for an unofficial strike"
Questions of the closed shop and the union shop (which cover, of course, a very high proportion of all industrial workers) involve, apart from anything else, complex questions of definition, just as anything does which embraces trade 77 union officials—or, for that matter, unofficial strikes. Your Lordships may remember one trade union which simply passed a rule that any unofficial strike was to become official. If you are going to alter trade union law, you have really got to think, because it is no use altering it by Statute and then finding that a simple change in the rule book gets you back to where you were before. Before Rookes v. Barnard, there was reasonable certainty as to what the law was, and if we want to restore reasonable certainty we can do so by a Bill of this kind; but we should, I suggest, be most unwise to try to do what the noble and learned Viscount suggested—namely, instead of putting it back to what is was, say, "Let us pick out some one thing we do not like, such as a strike the object of which is a closed shop, or a strike which is an unofficial strike, and, ahead of the Royal Commission, and without that careful deliberation which any change of that kind would need, seek to alter it in this Bill."
The difficulty of Rookes v. Barnard has been that nobody quite knows what it was that it decided. I have read—and I have no doubt that a number of your Lordships have read a larger number of opinions by different learned counsel on this subject than on any other I can remember, and hardly two that agree. The noble Lord, Lord Conesford, pointed out that distinguished lawyers like Mr. Wedderburn and Professor Hamson entirely disagree about the whole case from beginning to end. When the decision of your Lordships' House in Rookes v. Barnard was considered by the Court of Appeal in the subsequent case of Stratford v. Lindley, the whole Court of Appeal was of the opinion that what was done was clearly done in contemplation or furtherance of a trade dispute, but two members of the Court—the learned Master of the Rolls, Lord Denning, and Lord Justice Salmon—held:…that the defendants were not guilty of the tort of intimidation, the essence of which was the coercive threat to do an unlawful act, for a threat to induce some person to break a contract of employment, if made in contemplation or furtherance of a trade dispute, is, like the actual inducing of such a breach in like conditions, protected by Section 3 of the Act of 1906.They then proceeded to give rather different reasons why they thought that, but together expressed the opinion: 78The House of Lords was not required in Rookes's case to consider the question whether a trade union officer who threatened to induce others to break contracts of employment was or was not protected against an action for intimidation by Section 3. The scope of the decision in Rookes v. Barnard should not be extended beyond its particular facts, for such a result might well induce industrial chaos".Lord Justice Pearson, on the other hand, did not agree with any of that at all, and did not consider that they were protected by Section 3. In your Lordships' House, as your Lordships were of the opinion there was not any trade dispute at all, those interesting questions were not determined. So all lawyers are still necessarily in a state of very great doubt as to what RookesvBarnard decided, and must remain so in relation to Section 3 until the conflict of judicial opinion in the Stratfordcase has been resolved.
The noble Lord, Lord Conesford, asked me whether I was clear that the Bill as drafted achieved the object of reversing Rookes v. Barnard Strictly speaking, of course, it does not: it reverses it only in the limited field of an industrial dispute. It was perhaps a matter of some doubt before Rookes v. Barnard whether there was a tort of intimidation, although I agree there was always the eighteenth century case of the two ships. His second question was whether, assuming that there is such a thing as a tort of intimidation, it is confined to a threat to commit a criminal offence or to commit a tort, or whether it extends to a threat to break a contract. Now, there is no case in English law in which it has ever been held, if it existed at all, to extend to a threat to break a contract, and the Court of Appeal unanimously said that they could not extend it to a threat to break a contract.
Of course, the law as to intimidation and what it consists of is in no way limited to industrial disputes. It covers the whole field of law wherever somebody threatens to do something unlawful. It may have nothing whatever to do with a trade union or with a trade dispute. This Bill does not in any way interfere with the law as laid down by the House of Lords about intimidation, except only in this very limited industrial field, and then only where what is done is done in contemplation or furtherance of a trade dispute. But, in so far as it 79 seeks to put the law back to what it was in that field, and in that field only, I think that this Bill in fact does so.
§ LORD CONESFORD
My Lords, I am most grateful to the noble and learned Lord for yielding. As he was inevitably away at the time, I want only to make quite clear what my question to him was. The Bill mentions:… in his threatening … that a contract of employment … will be broken …But that is preceded by the words,… on the ground only that it consists …My problem was that the tort of intimidation consists in threatening a breach of contract with a particular motive and result. What I was wondering was whether the absence of any mention of the motive and result would prevent the person committing the tort of intimidation from coming within the protection of these words.
§ THE LORD CHANCELLOR
I should not have thought so, but, of course, so far as any of your Lordships are going to be kind enough to improve the Bill to enable us to make quite certain that, in that limited field,Rookes v. Barnard really is reversed, I am quite sure that we shall welcome that assistance at another stage of the Bill.
Then the noble Lord, Lord Wade, thought there was a case for some interim clarification of the law, but said he would like to see a specific Amendment aimed at the closed shop. While I appreciate that point of view, there are, of course, many ways in which a lot of people would like to amend trade union law, once you start. They are mostly extremely involved, and want a very great deal of consideration—including, I think, consideration of what the laws of other countries are, how they work, and so forth. This is so admirably suited to a Royal Commission and, in particular, if I may say so, to such a high-powered Royal Commission as this, that I suggest that we should be ill-advised to try to tackle that in the course of this particular Bill.
The noble Lord, Lord Soper, spoke to us of the human aspect of the problem. If I may say so, I have had the great pleasure of hearing the noble Lord, Lord Soper, speaking in places other 80 than this. It has always been a great joy to me to hear him speak, and I shall look forward very much to hearing him frequently in your Lordships' House. The noble Viscount, Lord Massereene and Ferrard, would have liked an ad hoc Committee; but I would suggest that if any change is to be made before consideration by the Royal Commission, it should be by a simple Bill with a simple object, which this one has; and that, as we have appointed a Royal Commission, there would be no advantage in appointing a separate ad hocCommittee. But the noble Viscount expressed the opinion that the right to strike must be qualified. Every strike is an economic waste. I expect that a good many of us feel that it ought to be possible to find some other and more sensible way of determining what people's remuneration is to be; and if there is one strike more than another that would be deprecated by all of us, it is the unofficial strike.
It is sometimes said that the right to strike must be qualified—and I know that strong views are held about the closed shop: it is a subject on which no two people agree. It depends on where you are standing. If you are standing with that one man in the corner who does not choose to join a trade union, your view may be: "It is a free country, and it is intolerable that this man should be sent to Coventry or lose his job simply because he does not choose to join a trade union." But it may be that you are standing with the 99 others who hazard the view that the majority also have some rights. They say: "Unfortunately our employers never put up our wages as does the private employer who sees his secretary at the end of the year and says, I see that the cost of living has gone up. I must therefore increase the wages I pay.' For 30 years or so our employers have never given a single increase or improved condition unless it has been fought for by our trade union. Whenever our trade union, to which we subscribe, gets improvements in pay or in better working conditions, do you think that man in the corner says: I cannot take the increased pay or accept the better conditions because I am not a member of the union'? Not a bit! He takes every single advantage which is obtained, and obtained only, by the trade union, while refusing to contribute to the 81 organisation by which alone it is done." So, as I say, which view you take depends very much on where you are standing.
If the men say: "We are not going to work with a chap like that", the courts have had to realise (and I suggest that we must all recognise the fact: it is always wise to recognise facts) that you cannot make men work with a man with whom they will not work. If 1,000 men will not work, and we send them to prison, what shall we do with 10,000? There will not be enough room in the prisons. The problem becomes more obvious when you reflect that if a man just gives notice and leaves, this is perfectly all right. A man may be on a week's notice. If there are 7,000 in a factory and 6,999 of them give a week's notice because they will not work with Smith, that is quite all right. Nobody has suggested there is anything wrong with that. But when you reflect that a large number of workers are still on an hour's notice, it seems extraordinary to say that if a man does not give an hour's notice (or, if he is on a weekly employment, gives only six days' notice instead of seven) this is a tort; that it ought to be stopped, and that such people ought to be sent to prison, whereas if an additional day's notice is given it is then all right.
The noble Viscount, presumably because it has a very good record in relation to strikes, referred to Germany. Germany is one of the only two countries which have a better record than we have. It was said rightly yesterday, in another place, that the days lost through strikes in this country (and the figure is lower for the United Kingdom than for any other leading industrial country, with the exception of the Federal Republic of Germany and Sweden) is far less than 10 per cent. of those lost through industrial accidents and far less than 1 per cent. of the loss through sickness. It is far better than the record of the United States of America, of Japan, of France or of most of the other countries. So that our actual record is good. What is interesting about Germany, which is one of the only two countries that has a better record, is that, as I understand it, under German law strikes are not breaches of contract. They amount to a suspension of the contract but do not constitute a breach.
82 I now come to the speech of the noble Lord, Lord Lloyd of Hampstead. If I call him "my noble friend" it will be right in both adjectival contexts. I am sure that any lawyer of his distinction is a welcome addition to your Lordships' House, and we shall all look forward to hearing him many times again in the future. The noble and learned Viscount, Lord Dilhorne, rather criticised his statement that the Judges had outflanked the statutory authority; but there is a pretty long history—since the beginning of the century and, indeed, earlier than that—of Parliament seeking, obviously, to liberalise the trade unions and of the Judges so developing the Common Law as to penalise the trade unions to an extent not intended by Parliament. I am not suggesting for a moment that they did so deliberately, though there were some very learned judges like Mr. Justice Astbury who never decided a trade union case rightly, because his hatred of them, his manifest hatred, was so great that it warped his view. One must remember that in the 1906 General Election, which led to the passing of the Trade Disputes Act, one of the Liberal Party Election posters was of a High Court Judge, in his wig and robes, handing a flail to an employer for the employer to administer to the worker. It was in that atmosphere that the Act was passed.
The noble Lords, Lord Blyton and Lord Citrine, have given us the benefit of their own considerable knowledge of trade union conditions, and have both expressed the view that if the law remains as it is it is likely to increase the number of unofficial strikes. I suggest that must be so; and that is one of the reasons why, before the whole of this subject is considered by the Royal Commission, we should do well to put the law back to what, in this field, it was in practice before Rookes v. Barnard. The noble and learned Viscount, Lord Dilhorne, seemed to think that this Bill would be taking away some right which someone had before Rookes v. Barnard. That, I suggest is not so. The case books are littered with cases, in the '20s and '30s, particularly, where men who claimed to have been injured by closed shop experience, similar to that in the Rookes case, have taken proceedings and failed. I remember no case of that kind which succeeded.
83 So long as the law remains as it is now, so far as it is certain at all, it is bound, I suggest, to provoke an increase in unofficial strikes, because the position now is this. If the men pass a resolution, as they did in the Rookes v. Barnard case, saying: "If the employers do not do so-and-so then we shall come out next Thursday", if the trade union organiser keeps his mouth shut and simply lets them come out on strike he cannot be touched. But if he thinks it right to go to the employers, as did the trade union defendant official Silverthorne in Rookes v. Barnard, and to warn the employers of the men's resolution, then it may be that this will be called a threat as it was held to be in Rookes v. Barnard. The man may find himself liable to£4,000 damages, as the defendants were in fact ultimately in that case, and they lost their homes and all their possessions.
In that state of things, is it not more likely that a trade union official who wants to keep his little home together will say nothing rather than pass information of that kind to the employer? Because that has been one of the effects of Rookes v. Barnard—strike first, negotiate afterwards, nobody can touch you. The dangerous thing for any trade union official to do now is to start talking to an employer and telling him how the men feel, because nobody now knows whether or not, if he does that, he may not find himself, like Mr. Silverthorne did, liable for some thousands of pounds damages. It is on those grounds that the Government's view is that it would be right to take the course which this Bill takes. For the rest, we look forward to the time when the Royal Commission will give us a code of industrial relations suitable to the conditions in which we now live.
§ On Question, Bill read 2a, and committed to a Committee of the Whole House.