THE HISTORICAL DEVELOPMENT OF LABOUR LAW
| Author | Roy Lewis |
| DOI | http://doi.org/10.1111/j.1467-8543.1976.tb00032.x |
| Date | 01 March 1976 |
| Published date | 01 March 1976 |
British
Journal
of
Industrial
Relations
Vol.
XIV
No.
1
THE HISTORICAL DEVELOPMENT OF LABOUR LAW
ROY LEWIS*
THE development of labour law has been subject to bewildering changes of pace
and direction over the last decade. The legal balance established in
1906
by the
Trade Dispute Act was upset in
1964
by the House of Lords judgment in
Rookes
v.
Barnard.'
The Trade Disputes Act
1965
which followed was intended as
a
mere holding operation pending the publication of the Report of the Royal Com-
mission under the chairmanship of Lord Donovan.2 Then came the Labour
Government's White Paper,
In
Place
of
Strife,j
which advocated so-called
'penalty clauses' on unions and consequently generated a bitter conflict within the
Labour Movement. Meanwhile, the Conservative Party had published its
own
comprehensive proposals for the reform of labour law4 in advance of the
Donovan Report, and in
1971
a Conservative Government passed the Industrial
Relations Act.
This
met with the implacable opposition of the T.U.C., and its
repeal was the Labour Party's foremost pledge in the 'who governs Britain' elec-
tion of February
1974.
The Labour Government's Trade Union and Labour
Relations Act of
1974s
was largely intended to restore the legal position as it was
prior to the Industrial Relations Act, though the Employment Protection Act
enacted in
1975
heralded yet another new and radical departure.
These events were a forceful reminder that major developments in labour law
have occurred at times of economic and social conflict. The nature and extent of
legal regulation has been determined not by some abstract rule-making force, but
by the interplay of judicial innovations, public policy controversy, the relative
power
of
management and labour interests, and party politics with a view to elec-
toral advantage. Labour law past and present is explicable only within a firm
historical framework which takes account of
all
these factors. Indeed, the
memory of previous conflicts over the law is itself a salient feature of political and
industrial struggles concerning labour legislation.
An
appreciation of the historical development
is
thus essential in considering
the impact of law on the British system of industrial relations, including contem-
porary labour legislation. There is, however, a distinct gap in the literature, even
though perceptive historical insight has been the hallmark of the writings of the
two leading academic labour lawyers,
0.
Kahn-Freund6 and
K.
W. Wedderburn.'
Both the opening chapters of Chine* and the stimulating volume by D.
N.
Pritt9
cover only part of the subject matter, whilst the last treatise on the legal history of
trade unions was published as long ago as
1930."
Also, historians of the trade
union movement such as the Webbs,"
B.
C. Robert~,'~ H. A. Clegg, Alan
Fox
and A.
F.
and W. Hamish Fraser14 have described the political
pressures which unions exerted for legislative purposes. What is more difficult to
find is a brief account and analysis of the historical development of labour law
and that is what this article is intended to provide.
Originally trade union combinations and the use of economic sanctions were
illegal, and the first theme of this article is to account for the emancipatory legis-
lation of
187 1-5,
and then to explain the subsequent development
of
the law of in-
dustrial conflict. The legal emancipation of trade unions facilitated the growth of
collective bargaining, and the history of both the law and the absence
of
law
relating to negotiations is considered. There was also the growth of law which
*
Lecturer in Industrial Relations,
London
School
of
Economics
and
Political Science.
1
2
BRITISH
JOURNAL
OF
INDUSTRIAL
RELATIONS
regulated the employment relationship
of
individual employees and their
employers. These various branches of law were characterised as ‘abstentionist’,
and abstentionism and the recent challenges to it posed by the Donovan Report
and the Industrial Relations Act are discussed. Finally it
will
be argued that the
labour law aspect of the Social Contract and other current developments threaten
the eclipse of the abstentionist tradition.
THE
EARLY
CRIMINAL LIABILITIES
From the fourteenth century, beginning with the Ordinance of Labourers of
1349,
magistrates and other state agencies were responsible for fixing wages by law. By
the late eighteenth century, however, under the pressure
of
industrialisation and
the new individualistic philosophy of laissez-faire, this system had been aban-
doned. Freedom of contract became the prevailing legal doctrine. The contract in
question as far as workers were concerned was the contract of employment, a
legally enforceable relationship subsisting between every individual employee and
his employer. The nineteenth-century judges insisted that the parties to the con-
tract were free and equal in coming together to form the contract and in the
negotiation of its terms.
This
ignored the economic necessity of the worker to sell
his labour and the factfhat the employer was often powerful enough to impose
his
own
terms. As the Webbs remarked: ‘Whenever the economic conditions
of
the parties are unequal, legal freedom of contract merely enables the superior in
strategic strength to dictate the terms’.Is Trade unions were needad to redress the
balance.
Combinations of workmen however were illegal and had been by virtue of a
succession of Acts from the Statute of Labourers
of
1351
onwards.16 Union
organisation was forbidden by the Combination Acts of
1799
and
1800,
which
were passed in the wake of the French Revolution. As the first gleam of liberal
reform these Acts were repealed in
1824
by the Combination of Workmen Act.
After a wave of strikes this Act was replaced in
1825
by a more limited statute,
the Combination Laws Repeal Amendment Act, which legalised some forms of
combination. Prior to the repeal
of
the Combination Acts industrial violence and
sabotage had been frequent occurrences, and ‘it was largely the hope of putting an
end to this veiled insurrection that induced a landlord Parliament to repeal the
Combination Laws, and thus, for the first time, enabled the trade unions openly to
carry on negotiations with their employers’.’’ Nevertheless, trade unions were still
faced by a myriad of criminal liabilities.
The
1825
Act itself had enacted new and vague crimes of ‘threats’, ‘in-
timidation’ and ‘molestation’ which frequently formed the basis of criminal
prosecutions of trade unionists. In addition there were other liabilities of older
origin. As one incident in the repression of Robert Owen’s Grand National Con-
solidated Trade Union, the ‘Tolpuddle Martyrs’ were sentenced in
1834
to seven
years’ transportation for contravening the Unlawful Oaths Act of
1797.
The
various Master and Servant Acts stipulated that breach of the individual employ-
ment contract was a criminal offence involving imprisonment for employees
(though not for employers) and literally thousands of trade unionists were im-
prisoned.ls
Even without encouragement from Acts of Parliament the judges developed
their own ‘common law’ crimes, notably conspiracy and restraint of trade. Con-
spiracy could take the form of either a combination to pursue an unlawful object
(the so-called ‘simple’ conspiracy) or alternatively a combination to pursue a law-
ful object by unlawful means. Since many judges regarded trade unionism as a
criminal objective simple conspiracy was of fundamental importance. Criminal
liability for restraint of trade was equally basic because trade unions were ob-
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