Intimidation and the Right to Strike
| DOI | http://doi.org/10.1111/j.1468-2230.1964.tb01027.x |
| Date | 01 May 1964 |
| Published date | 01 May 1964 |
THE
MODERN LAW REVIEW
Volume
27
May
1964
No.
3
INTIMIDATION AND THE
RIGHT
TO
STRIKE
PROFESSOR
JENKS,
commenting on the cases that culminated in
1901
in
Quinn
V.
Leathern’
and
Tag
Vale
Ry.
V.
A.S.R.S.,’
wrote:
‘‘
The House of Lords had first invented a new civil offence
(c
civil conspiracy
’)
and had then created a new kind
of
defendant
against whom it could be alleged.” In
1964,
in
Rookes
V.
Ba~nard,~
the House of Lords has invented a new extension of civil
liability, and then reduced
to
insignificance the protections of the
Trade Disputes Act,
1906,
which should have been a defence
against it.
The story has often been told how the judges in the nineteenth
century extended old and created new liabilities in criminal and
civil law to the disadvantage
of
a growing trade union m~vement.~
The unions increasingly pressed Parliament for statutory protection
only to find that the judges had moved on to some new liability.
The manipulation
of
such vague crimes as
‘‘
obstruction,”
molestation,”
‘‘
threats
”
and
“
intimidation
”
was (after defec-
tive attempts in
1859
and
1871)
impeded eventually by the
definitions of
1875.‘
The vague crime of
“
conspiracy
”
to which
the judges had particularly turned after
1871
was excluded from
66
!901] A.C. 495.
19011 A.C. 426.
of
English Law,
p. 337 (1934 ed.: first published 1912).
[1964] 2 W.L.R. 269;
1
A11
E.R. 367
(H.L.).
The page references given
below are to the W.L.R. (with the All E.R. in parentheses).
See.
for example,
Jenks,
op. cit.,
pp. 325-338;
Hedges
and Winterbottom,
Legal History
of
Trade Unionism;
Haslam,
Law Relating to Trade Com-
binations,
Chaps.
1-111;
Citrine,
Tradz Union Law,
Chap.
1.
Each
of
the
three last contain excellent accounts
of
the various judicial uses of
“
threats,”
“
intimidation.”
etc.
Molestation
of
Workmen Act, 1859; Criminal Law Amendment Act, 1871.
For the judicial outflanking of these statutes see,
for
example.
Springhcad
Spinning
Co.
v.
Riley
(1868) L.R.
6
Eq. 551;
R.
v.
Bunn
(1872)
12
Cox
316.
a.
7
of
the Conspiracy and Protection of Property Act, 1875, as interpreted at
least in
Gibson
V.
Lawson
[1891] 2
Q.B.
545.
limiting criminal
“
intirnida-
tion
”
to threats of violence.
A
regression may
be
seen in
Lyons
v.
Wilkins
[1899]
1
Ch. 255: see Finkelman 2 Univ.Tor.L.J.
67,
pp. 8695 and
p. 350 (1937).
257
VOL.
w
10
258
THE
MODERN
LAW
REVIEW
VOL.
27
the realm of trade disputes in the same year.8 Up to that time
“
there never had been any attempt to make out any civil liability
”
for conspiracy; but
“
then came the new world and the new
ideas
”;
and the judges devised a civil responsibility for conspiracy
which became
“
very serious.”
@
Together with the liability for
inducing breach of contract, invented in 1853,’O and (some thought)
perhaps a residual tort
of
‘‘
malicious interference
”
with business,”
the judges had by 1901 reacquired in civil law the capability to
repress strikes which statute had denied them in the criminal law.
The torts in question had indeed
(‘
arisen out of the circumstances
of modern industrial relations
’’
12;
but no modern observer can
fail to notice that they arose from judges who reflected the attitudes
of the middle class towards the labour movement.13 The Trade
Disputes Act, 1906, was passed to protect trade unionists against
these liabilities, and to allow for the confrontation of conflicting
industrial interests without constant recourse to the courts.
The House of Lords, in
Rookes
v. Barnard,14 has now extended
such tort Lability once again in
a
trade dispute. Briefly, their
lordships decided, for the first time, that threats to break a contract
can be tortious
“
intimidation,” on a par with threats of violence;
and that the 1906 Act does not protect such
“
intimidation.’’ An
element of what might justly be termed mystification could be
thought to lie in placing- this kind of threat into
a
category where
it can be at once equated with such things as threats of vi01ence.l~
As
‘‘
intimidation,” the contractual characteristics can, as we shall
see, more easily
be
forgotten.l8
Rookes, it will be recalled, sued two draughtsmen, fellow
employees
at
B.O.A.C., and a union organiser (Silverthorne), who
had instigated and conveyed to B.O.A.C. the threat of all the
employees to strike within three days
if
Rookes (who had left the
union) was not removed from the office, in pursuit of the
“
100
8
s.
3
of the Act of 1875.
Lord Chancellor Loreburn (1906) 166 Parl.Deb., col. 693 .speaking on
the
Trade Disputes Bill.
30
Lumley
v.
Gye
(1853) 2
E.
&
B.
216.
11
See below, p. 977.
12
Lord Evershed.
Rookcs
v.
Barnord,
p. 293 (385).
13
See
0.
Kahn-Freund in
Law and
Opinion
in
England in
the
20th century
(ed.
Ginsberg, 1959), p. 241.
1.1
[1964] 2 W.L.R. 269; [1964]
1
All
E.R. 367.
15
Lord Hodson, p. 307 (395)
:
”
It would be strange if threats of violence were
sufficient and the
more
powerful weapon
of
a threat to strike were not, always
provided the threat
is
unlawfnl. The injury and suffering caused by strike
action is very often widespread as well a8 devastating, and a threat
to
strike
would
be expected to be certainly no less serious than a threat
of
violence.”
16
Lord Reid, p. 280 (375). The law must protect against both violence and
‘‘
subtler means
’’.
“Intimidation
of
my
kind appears to
me
to be highly
objectionable.” Lord Devlin (after asserting that their decision might be
sadly unwise policy) was able to say that their lordships could allow the
Act to protect only
if
they made it
’‘
wide enough to protect the threatener
of
physical violence
”:
p.
323
(406).
I
am
indebted for discussion on this point
and
others to
Mr.
Innis Christie who comments on the case in September
1964,
Canadian Bar
Recicw.
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