Gouriet v Union of Post Office Workers
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE LAWTON,LORD JUSTICE ORMROD |
| Judgment Date | 27 January 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0127-2 |
| Docket Number | 1977 G. No. 141 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 January 1977 |
[1977] EWCA Civ J0127-2
The Master of the Rolls (Lord Denning)
Lord Justice Lawton
Lord Justice Ormrod
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
On appeal from Mr. Justice Stocker in Chambers)
MR. GEORGE NEWMAN (instructed by Messrs. Trower, Still & Keeling) appeared on behalf of the Plaintiff (Appellant)
MR. MARK SAVILLE Q.C., and MR. IAN HUNTER (instructed by Messrs. Simpson Millar) appeared on behalf of the 1st Defendant.
MR. MARK SAVILLE Q.C., and MR. V. V. VEEDER (instructed by Messrs. Shaen Roscoe & Bracewell) appeared on behalf of the 2nd Defendant.
H.M. ATTORNEY-GENERAL (Rt. Hon. S. C. Silkin, Q.C., M. P.) and MR. H. K. WOOLF (instructed by The Treasury Solicitor) appeared on behalf of the 3rd Defendant.
Page 2 G-H Delete "British Broadcasting Corporation" and insert "Independent Broadcasting Authority".
Page 13 F-G After "to take into account" insert "or fails to take into account matters which he ought to take into account".
Page 14 G-H After "at page 18:" delete "When all" and insert "Where all members of".
On the Saturday before last, an ordinary citizen came to this Court. He came, he said, on behalf of the public at large. He told us that a powerful trade union was breaking the law, and was going on breaking it. He asked us to make an order restraining them from doing so. We made the order. We made it in the very words of the Statute of the Realm. Our order was effective. The trade union, to its credit, obeyed it. So there has been no trouble. The breach of the law has been averted.
Yet, the Attorney-General came before us on the next Tuesday: and speaking with all the great authority of his office, he rebuked us. He told us that we had no jurisdiction to make that order. We had no right to do it without his consent: and he had refused his consent. It was for him - and for him alone - to decide whether this trade union should be restrained from breaking the law. And that so far as he was concerned, he was going to do nothing to stop it. He was not going to make any application to the Court. And that no member of the public could come either.
This submission is, to my mind, contrary to the whole spirit of the law of England. These Courts are open to every citizen who comes and complains that the law is being broken. So long as he has a proper case for consideration, we will hear it. No one shell forbid him access. He is not to be turned away on some technical objection about locus standi. That is why we heard Mr. Blackburn, when he complained that the Commissioner of Police was not enforcing the law as he should. It was why we heard Mr. Ross McWhirter when he told us that the British Broadcasting Corporation was about to fail in its statutory duties. It is why we have heard Mr. Gouriet now.
Yet the submission has been made: and the matter is of suchgreat constitutional importance that I must examine it in detail. It arises out of events in a far-off land - South Africa. It has great problems. One of them is the organisation of labour in trade unions. The handling of it by the Government of that country has come under criticism by an international organisation of trade unions. This international organisation seeks to build up public opinion against South Africa. It launched a campaign of protest and called upon the trade unions of other countries to support the campaign. It called for "international solidarity". The trade union leaders of England responded to the call. They asked the trade unions of England to boycott all dealings with South Africa for one week, from midnight on Sunday, 16th January, 1977. One of these unions was the Union of Post Office Workers. This union determined to impose a boycott of all communications between this country and South Africa.
It was all done very quickly without consulting the workers and before anyone could do anything about it. This is the time-table: On Thursday, 13th January, 1977, the executive committee of the union met - 31 of them - and unanimously decided to impose a boycott. They knew that it might possibly be illegal, and yet they decided to do it. At least I so infer from the evidence, which has not been contradicted. On that very evening on the 9 o'clock Hews bulletin it was reported that the executive council of the union had resolved that day to call upon their members to interfere with the passage of mail in the course of transmission by post between the Republic of South Africa and England and Wales. Immediately afterwards the General Secretary spoke on television. It was put to him that the action was in fact unlawful and illegal. He replied that the matter had never been tested in the Courts, and thatthe laws relating to it dated from Queen Anne and were more appropriate for dealing with highwaymen and footpads.
On the next day the "Times" newspaper carried this report: "With unanimous resolve, the 31 members of the executive of the Union of Post Office Workers decided yesterday to brave possible legal action under the Post Office Act and boycott all telephone calls, mail and telegrams to South Africa next week. Their action, taken in response to a call for "international solidarity" from the International Confederation of Free Trade Unions, is being followed by other unions who hope to influence apartheid policy… The Post Office Engineering Union said it would instruct its members not to provide or maintain circuits to the country except in a matter of 'life or death'."
Now, there is an association called the National Association for Freedom of which we know nothing except that it has a secretary - Mr. John Prendergast Gouriet. It is said by its critics to be a right-wing pressure group. But that is no concern of ours. On the Friday morning Mr. Gouriet consulted lawyers to see if the action of the Union was lawful or not: and, if it was unlawful, whether anything could be done to stop it. The lawyers advised that it was unlawful and that Mr. Gouriet's proper course, as a citizen, was to draw the matter to the attention of the Attorney-General so as to see if he would himself take action or, alternatively, would give his con- sent to Mr. Gouriet himself taking action to stop it. If the Attorney-General took action himself, it would be what we call an action ex officio, in which he would put the whole weight of his office and authority behind it. If he did not take action himself, but gave Mr Consent for Mr. Gouriet to take action his fiat, as the lawyers call it - then it would be what we call a "relator action" - that is, an action by the Attorney-General "on the relation of Mr. Gouriet", or, more understandably, on the information given by Mr. Gouriet. In that case the Attorney-General would himself be, in strictness of law, the party to the suit, but Mr. Gouriet would be, as an old writer put it, "the life of the suit": see Calvert on Parties (1843, p. 398.) If it failed, Mr. Gouriet would be liable to pay the costs. But Mr. Gouriet, as relator, would be acting not on behalf of himself alone, or of the association of which he was secretary, but on behalf of the public at large.
At 12.45 p.m. on the Friday, the Attorney-General was asked for his consent. At 3.32 p.m. he refused, saying: "Having considered all the circumstances, including the public interest, I have come to the conclusion in relation to this application I should not give my consent."
Thereupon Mr. Gouriet issued a writ in his own name against the union, asking for an injunction to restrain the union from breaking the law. He applied to the Judge in Chambers for an injunction. It was refused. On Saturday, 15th January, 1977, Mr. Gouriet appealed to this Court. We granted an injunction which the trade union obeyed. So the proposed boycott did not take place.
WAS THE BOYCOTT ILLEGAL?
At the heart of this case lies this question: Suppose a trade union, or its officers, call upon the workers in the Post Office to detain or delay any letters which are addressed to a named firm or to a named country, is their action lawful?
In some quarters doubts have been expressed. As recently as 4th November, 1976, in the House of Commons the Secretary of State for Employment said that the question "has never been tested in a Court…in the absence of any Court decision, it would be most improper for me to express a view whether acriminal act had been committed": (see Hansard, columns 1646-7) This doubt was repeated by the General Secretary of the Union of Post Office Workers on television on Thursday, 13th January, 1977, when he said: "This matter has never been tested in the Courts. The laws relating to it date from Queen Anne and are more appropriate for dealing with highwaymen and footpads."
Seeing that these doubts have been expressed in such high quarters, I must say, as firmly as I can, that if a trade union or its officers gave such a call to its workers, it would be acting unlawfully. It matters not that the call was in contemplation or furtherance of a "trade dispute". May be it was. May be it was not. No matter. The very call to the workers would be a criminal offence by the trade union and its officers: and every worker who obeyed the call would himself be guilty of a criminal offence. The union itself could be prosecuted in the criminal Courts in its own name: (see S. 2(1) (d) of the Trade Union Act 1974). Its officers could be prosecuted, too. So could each one of the workers. The prosecution could be undertaken by the police, or by any private citizen. Any one of them could undertake a prosecution. If it was proceeded with, no one could stop it except the Attorney-General. He could enter what we lawyers call a " nolle prosequi", that...
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