THE FUTURE ROLE OF THE LAW
| Date | 01 June 1970 |
| Author | Cyril Grunfeld |
| Published date | 01 June 1970 |
| DOI | http://doi.org/10.1111/j.1467-9485.1970.tb00497.x |
THE FUTURE ROLE OF THE LAW
CYRIL
GRUNFELD
Labour relations in this country will not be legally regulated in the future,
but the law will play
a
role in labour relations of increasing importance.’
If
the latter statement is greeted with incredulity, it is. in my opinion. because
of two fallacious assumptions which have been allowed to gain wide
currency.
The first
is
that, in Britain, unions and workers want nothing more of
the law than that
it
should leave them alone. This is very far from the truth
of the matter. The truth of the matter may be expressed as being that, on the
one hand, unions and workers are opposed to law which enlarges managerial
bargaining power
or
diminishes union bargaining power and autonomy
or
which holds back advantages for individual employees, while, on the other
hand, they warmly favour and will press hard
for
law which maximises
union bargaining power and autonomy
or
which maximises advantages for
individual employees, including especially union members. This,
of
course,
is only natural but it is important for
an
understanding of future legal
development that the true position should not be camouflaged and should
be precisely understood.
The second fallacious assumption is that judges and lawyers are
intrinsically unfitted to deal with labour relations issues. This is sometimes
phrased even more tendentiously by saying that the trade unions and indus-
trial relations must not be made the plaything
of
the legal fraternity. This
sentiment, like that of being left alone by the law, may stem from a selective
historical memory of the over-identification with employer interests
of
magistrates and courts in the nineteenth century as well
as,
possibly, the
hundreds
of
cases on workmen’s compensation in this century in which the
phrase,
‘
arising out
of
and in the course of employment
’,
was made the
subject
of
lengthy and expensive litigation.2 This latter development was
not, however, the deliberate intent
of
lawyers but the result
of
a system
initiated by Parliament which nevertheless laid the foundation for the present
comprehensive social security arrangements in the establishment and running
of which lawyers have played and continue to play a substantial part. On
the other hand, this historical memory is selective in that it invariably
excludes any recollection of how the judiciary and other lawyers liberalised
the common law of industrial accidents and the Factories Acts
and
other
The trend towards extending and improving legally guaranteed minimum stan-
dards, the increasing concentration
of
power in organisations, whether industrial
or
trade union, the escalating power
of
work groups through rapid technological changes
and their consequences, and the increasing repercussion
of
industrial conflict
on
society
as a whole make an enlargement
of
the legal
role
inevitable, in
my
opinion.
2The
48
volumes
of
Butterworth’s Workmen’s Compensation Cases are an
imperishable monument
to
this experience.
206
CYRIL
GRUNFELD
protective legislation3
or
of how they preserved the Trades Disputes Act
1906
from being undermined
in
its early days' and established a regime
of
legal
neutralism throughout the struggling days in this century
of
British trade
unioni~m.~
In
my opinion, the danger today is not that industrial relations
may become the plaything
of
the legal fraternity but that the law may become
the plaything of industrial relations.
Not only are lawyers capable
of
playing a vital,
supportive
role in labour
relations, as the work
of
American labour arbitrators amply shows, but
the clear-headed analysis and even-handed judgment which are the marks
of
the good lawyer are,
I
believe, deeply needed elements
in
defining and
making effective for both employees and management an important range
of rights and responsibilities. This article will be concerned with the lines
along which the role of the law may enlarge in the remainder of the present
century, the basic principles which should direct this enlargement and the
manpower requirements
it
implies.
There are three areas
of
labour relations, not entirely insulated from each
other, to consider
:
individual labour relations, internal union relations, and
management-labour relations. In these areas, two broad policies, which
unfortunately do not have the attractive simplicity
of
extremism, should be
pursued. The one policy
is
to raise the standards
of
employment terms and
conditions and social security and increase the legal protection of the indi-
vidual employee while maintaining the conditions
of
managerial efficiency.
The other policy is
to
encourage the development
of
collective bargaining in
sympathy with the aspirations and interests
of
both managers and managed
while substituting, wherever possible, the public interest in law and orderly
procedures
for
private power and industrial battle.
INDIVIDUAL
LABOUR
RELATIONS
The protection
of
individual employees and the nature
of
their terms
and conditions
of
employment depend, in part, on the law and, in part,
on
3From about 1890, the courts created an entirely new action for damages
for
breach of any statutory duty contained in safety and health legislation, neutralised
the defence
of
consent
(vofenti
non
fir
injuria),
greatly mitigated the defences
of
contributory negligence (until it was abolished as an absolute defence by the
L.R.
(Contributory Negligence) Act 1945) and common employment (until abolished by
the Law Reform (Personal Injuries) Act 1948), and steadily enlarged the scope
of
liability
of
employers and their insurance companies. The backpedalling which began
in 1952 appears
now
to have ended and a new liberal phase to have been inaugurated
as, for example, most recently in
Millard
v.
Serck
Tubes Ltd.
[1969]
1
All
E.R. 598
and
Boyle
v.
Kodak Ltd.
[1969] 2 All E.R. 439.
'The
prevention by the Court of Appeal
of
an emasculating interpretation by
the High Court of the pivotal concept
of
a
'
trade dispute
'
in
the Trade Disputes Act
1906
is
never recalled in any historical review
of
the relationship between the trade
unions and the judiciary. The judicial preservation of the 1906 Act took place in
Dollimore
v.
Williams
(1914)
30
T.L.R.
432;
Hodges
v.
Webb
[1920] 2 Ch.
70;
and
White v. Riley
[1921] 1 Ch. 1.
The highlights were
Reynolds v. Shipping Federation Lrd.
[1924] 1 Ch. 28;
Crofter Hand-Woven Harris Tweed
Co.
v.
Veitch
[1942] A.C. 435;
Thomson
v.
Deakbi
[1952] Ch. 646;
Scala Ballroom (Wolverharnpion) Lid.
v.
Rarcliffe
[1958] 3 All
E.R.
220.
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