British Broadcasting Corporation v Hearn
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL,LORD JUSTICE SCARMAN |
| Judgment Date | 20 May 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0520-5 |
| Date | 20 May 1977 |
| Court | Court of Appeal (Civil Division) |
[1977] EWCA Civ J0520-5
The Master of the Rolls (Lord Denning),
Lord Justice Roskill and
Lord Justice Scarman
In The Supreme Court of Judicature
Court of Appeal
Civil Division
From: Mr Justice Pain, Queen's Bench Division, London.
MR SIMON GOLDBLATT, Q.C. and MR COLIN MacKAY (instructed hy Messrs. William Charles Crocker) appeared on behalf of the Appellants (Plaintiffs).
MR J.H. INSKIP, Q.C. and MR FREDERIC REYNOLD (instructed by Mr John L. Williams) appeared on behalf of the Respondents (Defendants)
THE MASTER OE THE ROLLS: Tomorrow afternoon there is to be the Cup Final at Wembley. It is to be televised live. Home viewers are not to be interfered with, but half the world will not see the game if a trade union has its way.
It happens like this. There is a telecommunications centre in Cornwall which sends cut a signal to a satellite stationed in space above the Indian Ocean. Once that signal reaches the satellite it is radiated back to earth again. When it comes back to earth, any country within reach can pick up the signal and transmit it as pictures on television: provided that the country on earth his the proper equipment. The Indian Ocean satellite is the means by which the game will be televised live to such far-off countries as Australia, New Zealand, Hong Kong, Malaysia, Singapore, Thailand, Kuwait, the United Arab Emirates, Iran and Africa. All those countries rely on the signal from the Indian Ocean satellite. There are technicians in England who control the transmits of the signal to the Indian Ocean satellite. Only a few of them, but they can send out the signal, or stop it, as they please. They are members of a trade union within the British Broadcasting Corporation. It is called the Association of Broadcasting Staff. Most of the BBC's 20,000 employees belong to it. Now the officers of the trade union have determined, if they can, to stop the signal being sent out to the satellite during the Cup Final. The reason is because they do not want the viewers in South Africa to watch the game. They realise that this will deprive the viewers in Australia, and the other countries, of the pleasure of watching; but they feel that those viewers must suffer because they happen to take the pictures by means of the same satellite as South Africa. So the union, or its officers, propose to issue instructions to the technicians telling them to stop transmitting, and no doubt they will do as they are told.
How has all this unfortunate situation come about? The story starts with Mr Peter Hain, the chairman of a group which calls itself The Action Committee against Racialism. This group takes strong objection to the policies of the present Government of South Africa. They believe that that government practises thepolicy of Apartheid - that is, the separation of the white community from the black and coloured communities - and that that government is guilty of oppression and inhuman conduct towards the black and coloured people. In support of this cause this group seeks to stop this broadcast going out to South Africa. Mr Peter Hain, on 22 April 1977, this year, wrote this letter to Sir Charles Curran, the Director-General of the BBC:
"It was reported in the Johannesburg Star of 31 March that 'the BBC has confirmed that plans for the relay have been finalised and satellite times reserved'.
"You will be aware that television in South Africa is structured on a racialist basis - a 'whites-only' service run by whites and rigidly controlled by the Government which uses it as a propaganda mouthpiece.
"The screening of the Cup Final will give considerable satisfaction to the sports loving white population - one and a half million are expected to watch according to the South African Broadcasting Corporation - and they will see the BBC as a friend of the obnoxious practice of apartheid.
"It is essential that the BBC is not identified in any way with racial oppression nor with providing a morale boosting fillip to the white minority.
"I would therefore ask that you intervene to ensure that the Final is not broadcast to South Africa".
Sir Charles Curran replied on 29 April. He said they could not comply with their request. He pointed out that the satellite carried the television signal to many other countries beside South Africa. He added that many followers of football among the South African coloured and black communities would want to see the broadcast. On receiving that refusal, Mr Peter Hain sought the help of this trade union, the Association of Broadcasting Staff: and he received it. The trade union themselves had a policy strongly opposed to any racial discrimination. They invoked the United Nations resolution on racial policy in April 1961. It was passed by 95 votes to 1. The British Government supported it. The resolution condemned Apartheid. It requested member states to take all action open to them in conformity with the United Nations Charter to bring about abandonment of that policy. The trade union itself, at their annual council meeting in April 1977, this year, passed this resolution:
"(10) That this Council of the Association of Broadcasting and Allied Staffs affirms its abhorrence of any from of racial, sexual, political and religious discrimination and authorises the NEC" - that is, the executive committee - "to take such measures as are necessary to oppose discrimination in broadcasting".
On receiving Mr Hain's request for help the General Secretary of the union, Mr Hearn, on 9 May 1977, wrote this letter to Sir Charles Curran:
"the Association fully endorses Mr Hain's request to you to intervene to ensure that the Cup Final is not broadcast to South Africa. I must also make it clear, in view of the statement of policy on racialism, made by the Association's recent annual delegate conference, that the ABS" - that is, the Association of Broadcasting Staff - "will take whatever industrial action is necessary to seek to prevent any broadcasting of the Cup Final to South Africa".
Three days later, on 12 May, a notice was put on the notice boards of the Association of Broadcasting Staff. It recited the letter sent to Mr Charles Curran. It ended with these words:
"I have not yet had a reply to my letter from the Director-General. I believe it probable, however, that he will not be able to give an undertaking about the broadcast that is satisfactory to the Association. If this proves to be the case the Association will have to ask those of its members concerned in covering the FA Cup Final not to work on the programme since this is the only effective way that we believe that we can prevent it being seen in South Africa".
That notice shows that, if the BBC did not comply with their request, the union would ask its members to work on the programme for televising the Cup Final. On 13 May Sir Charles Curran replied saying that he could not agree to their request. If they were to persist in their proposed action, he would have no option but to seek an injunction from the courts.
Last Monday, 16 May, Mr Hearn wrote a final letter to Sir Charles Curran. He said they intended to seek a counter injunction against the BBC, saying:
"The basis of" that injunction "will be that the argument between the employer and the employee about the requirement to carry out duties contrary to national and international policy must be, within the meaning of the Act, a trade dispute".
So there it is, last Monday the union justified their proposed course of action on the ground that there was a "trade dispute".
Thereupon the BBC, on Wednesday last, issued a writ, not against the union itself but against the General Secretary, the Chairman and the members of the executive committee. The BBC sought an injunction so as to prevent the obstruction of the broadcasting to the satellite over the Indian Ocean. The matter, being urgent, cane before Mr Justice Pain yesterday. The Defendants were all represented. Mr Justice Pain held that there was a trade dispute within the meaning of the Act and in that event an injunction should not be granted against the officers of the trade union. The BBC came straight away to this court yesterday afternoon. We have heard the appeal today and now we have to decide it.
It is not necessary today to go through all the legislation which we have had relating to trade unions. I would only say that in three recent Acts, 1974, 1975 and 1976, Parliament has conferred more freedom from restraint on trade unions than has ever been known to the law before. All legal restraints have been lifted so that they can now do as they will. Trade unions and their officers - and, indeed, groups of workmen, official or unofficial - are entitled to induce others to break their contracts - net only contracts of employment but other contracts as well - they are entitled to interfere and prevent the performance of contracts by others - all with impunity. Any such inducement or interference is not only not actionable at law. It is specifically declared to be "not unlawful". It is therefore proclaimed to be lawful, provided always this (and this is the one limit to the exemption which is conferred): it must be "in contemplation or furtherance of a trade dispute".
Apply these considerations to this case. The officers of the union are going to call upon their members to break their contracts of employment with the BBC and to induce the BBC to break its contracts with all those countries overseas. That is what they are asking their...
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