Industrial Conflict: Judicial Attitudes
| Date | 01 January 1969 |
| DOI | http://doi.org/10.1111/j.1468-2230.1969.tb02283.x |
| Author | Paul O'Higgins,Martin Partington |
| Published date | 01 January 1969 |
INDUSTRIAL CONFLICT
:
JUDICIAL
ATTITUDES
IF
there is one area in which the judges’ undisclosed social and
political premises are likely to be important factors in the deter-
mination of cases,
it
is in the field of industrial conflict between
workers and employers. Scrutton
L.J.
referred to the dilemma
facing judges in this kind of area when he said
:
“[Impartiality] is rather difficult to attain in any system.
I
am
not speaking of conscious impartiality; but the habits you are
trained in, the people with whom you mix, lead to your having
a
certain class of ideas of such
a
nature that, when you have
to deal with other ideas, you do not give as sound and
accurate judgments as you would wish. This is one of the
great difficulties at present with Labour. Labour says:
‘
Where
are your impartial Judges? They all move in the same circle
as
the employers and they are all educated and nursed in
the same ideas as the employers. How can a Labour man
or
a trade-unionist get impartial justice
?
’
”
Twelve years earlier Winston Churchill said in a speech in
cc
The courts hold justly a high, and
I
think, unequalled
prominence in the respect of the world in criminal cases, and
in civil cases between man and man, no doubt they deserve
and command the respect of all classes of the community, but
where class issues are involved,
it
is impossible
to
pretend that
the courts command the same degree of general confidence.”
*
In order to see whether there is any clear statistical evidence
which might point to bias on the part of the judges in the field
of labour law, we decided to
look
at the way in which the English
judges have decided cases arising out of industrial conflict since
the passing of the Trade Union Act
1871
(which gave the stamp
of legitimacy to the industrial organisations of the British working
class). The initial difficulty was to decide what was the meaning
of
industrial conflict, and we decided to include all cases arising
out of disputes between groups of workers and employers,
or
between groups of organised and unorganised workers.
The second problem was where to
look
for these cases. We could
have confined
our
attention to a single series of law reports such
Scrutton L.J.:
“
The Work
of
the Commercial Courts
”
(1921)
1
C.L.J.
6,
8.
See
also
Pritt and Freeman,
The Law versus the Trade
Unions
(1958),
p. 21.
2
May
30,
1911; quoted in Milne-Bailey,
Trade
Union
Documents
(1929)
p.
380.
8
We have excluded Irish and Scottish cases
from
this example, though we later
refer
to
certain
of
these cases that reached the House
of
Lords. Similarly
we
have, in the main, ignored appeals determined
by
the Privy Council.
the House of Commons
:
53
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