Duport Steels Ltd and Others v Sirs and Others (on Their Own Behalf and on Behalf of all Members of the Executive Council of the Iron and Steel Trades Confederation)
| Jurisdiction | UK Non-devolved |
| Judge | Lord Diplock,Lord Edmund-Davies,Lord Fraser of Tullybelton,Lord Keith of Kinkel,Lord Scarman |
| Judgment Date | 01 February 1980 |
| Judgment citation (vLex) | [1980] UKHL J0201-1 |
| Date | 01 February 1980 |
| Court | House of Lords |
[1980] UKHL J0201-1
Lord Diplock
Lord Edmund-Davies
Lord Fraser of Tullybelton
Lord Keith of Kinkel
Lord Scarman
House of Lords
My Lords,
As recently as 13 December 1979 this House decided in Express Newspapers Ltd. v. McShane [1980] 2 W.L.R. 89 that, upon the true interpretation of section 13(1) of the Trade Union and Labour Relations Acts 1974 and 1976, the test whether an act was "done by a person in contemplation or furtherance of a trade dispute" and so entitled him to immunity from a part of the common law of tort, is purely subjective: i.e., provided that the doer of the act honestly thinks at the time he does it that it may help one of the parties to a trade dispute to achieve their objectives and does it for that reason, he is protected by the section.
That conclusion as to the meaning of words that have been used by successive parliaments since the Trade Disputes Act 1906 to describe acts for which the doer is entitled to immunity from the law of tort over an area that has been much extended by the Acts of 1974 and 1976, is (as I pointed out in the McShane case) one which is intrinsically repugnant to anyone who has spent his life in the practice of the law or the administration of justice. Sharing those instincts it was a conclusion that I myself reached with considerable reluctance, for given the existence of a trade dispute it involves granting to trade unions a power, which has no other limits than their own self-restraint, to inflict by means which are contrary to the general law, untold harm to industrial enterprises unconcerned with the particular dispute, to the employees of such enterprises, to members of the public and to the nation itself, so long as those in whom the control of the trade union is vested honestly believe that to do so may assist it, albeit in a minor way, in achieving its objectives in the dispute.
My Lords, at a time when more and more cases involve the application of legislation which gives effect to policies that are the subject of bitter public and parliamentary controversy, it cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based upon the separation of powers; parliament makes the laws, the judiciary interpret them. When parliament legislates to remedy what the majority of its members at the time perceive to be a defect or a lacuna in the existing law (whether it be the written law enacted by existing statutes or the unwritten common law as it has been expounded by the judges in decided cases), the role of the judiciary is confined to ascertaining from the words that parliament has approved as expressing its intention, what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our constitution it is parliament's opinion on these matters that is paramount.
A statute passed to remedy what is perceived by parliament to be a defect in the existing law may in actual operation turn out to have injurious consequences that parliament did not anticipate at the time the statute was passed; if it had, it would have made some provision in the Act in order to prevent them. It is at least possible that parliament when the Acts of 1974 and 1976 were passed did not anticipate that so widespread and crippling use as has in fact occurred would be made of sympathetic withdrawals of labour and of secondary blacking and picketing in support of sectional interests able to exercise "industrial muscle." But if this be the case it is for parliament not for the judiciary to decide whether any changes should be made to the law as stated in the Acts, and, if so, what are the precise limits that ought to be imposed upon the immunity from liability for torts committed in the course of taking industrial action. These are matters on which there is a wide legislative choice the exercise of which is likely to be influenced by the political complexion of the government and the state of public opinion at the time amending legislation is under consideration.
It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest. The frequency with which controversial legislation is amended by parliament itself (as witness the Act of 1974 which was amended in 1975 as well as in 1976) indicates that legislation, after it has come into operation, may fail to have the beneficial effects which parliament expected or may produce injurious results that parliament did not anticipate. But, except by private or hybrid Bills, parliament does not legislate for individual cases. Public Acts of Parliament are general in their application; they govern all cases falling within categories of which the definitions are to be found in the wording of the statute. So in relation to section 13(1) of the Acts of 1974 and 1976, for a judge (who is always dealing with an individual case) to pose himself the question: "Can parliament really have intended that the acts that were done in this particular case should have the benefit of the immunity?" is to risk straying beyond his constitutional role as interpreter of the enacted law and assuming a power to decide at his own discretion whether or not to apply the general law to a particular case. The legitimate questions for a judge in his role as interpreter of the enacted law are:
"How has parliament, by the words that it has used in the statute to express its intentions, defined the category of acts that are entitled to the immunity? Do the acts done in this particular case fall within that description?"
The first of these questions was answered by this House in the McShane case in the way I have already mentioned. The principal question in this appeal is whether the Court of Appeal were right in overruling the High Court judge's finding that it was highly probable that the acts complained of in the instant case did fall within the category of acts entitled to the immunity.
The relevant facts that were in evidence before the judge and the Court of Appeal are to be found set out with customary clarity and simplicity in the judgment of the Master of the Rolls. Except that I think it necessary to transcribe in full one letter upon which the argument has mainly turned, I need do no more than re-state them here in summary form.
The British Steel Corporation ("B.S.C.") is a public authority established under the Iron and Steel Act 1975 to run the nationalised sector of the steel industry. It produces some 50 per cent. of home produced steel in the United Kingdom and for that purpose employs a workforce numbering some 150,000, of whom about 95,000 are members of the trade union, the Iron and Steel Trades Confederation ("I.S.T.C."). Under the Act the Secretary of State is empowered by section 4 to give to BSC general directions as to the exercise and performance of its functions, and under Part II of the Act, sections 14 to 24, he is entitled to exercise a relatively close control over the finances of the Corporation and in particular over its borrowings. In effect, if BSC is operating at a loss, as it notoriously has been doing for some time past, the Secretary of State holds the purse strings. It is also in evidence, what is in any event a matter of public knowledge, that before the commencement of the strike by ISTC members which has given rise to the events with which this appeal is concerned, the Government had announced its decision not to provide any public funds to enable BSC to meet its operating losses after 30 March 1980. Thereafter it must pay its own way and meet its operating costs, including its current wages bill out of its current earnings.
In the latter part of 1979 negotiations between ISTC and BSC on wage rates for 1980 began. Owing to the financial stringency which BSC would experience in 1980, little progress was made; and on 2 January 1980 the Executive Council of ISTC called a strike of its members employed by BSC. This is the trade dispute in furtherance of which the union claims the subsequent steps that are the subject of the instant appeal were taken.
Alongside the nationalised sector of the iron and steel industry there is a private sector. It consists of about 100 companies producing some 17½ per cent of the steel produced in the United Kingdom and employing as part of their total workforce some 15,000 who are members of ISTC. It is common ground that there was no existing trade dispute between these workers and any of their employees in the private sector.
By 17 January 1980 the Executive Council of ISTC were growing dissatisfied at the progress that the strike was making even with the aid of some sporadic secondary picketing and sympathetic blacking of movements of steel by members of other trade unions. Accordingly they resolved to call out on strike their members employed in the private sector on 26 January unless a wage settlement with BSC had been reached by then.
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