THE RIGHT TO THREATEN STRIKES—II
| Date | 01 September 1962 |
| Published date | 01 September 1962 |
| DOI | http://doi.org/10.1111/j.1468-2230.1962.tb02214.x |
| Author | K. W. WEDDERBURN |
THE
MODERN
LAW
REVIEW
Volume
25
September
1962
No.
5
THE
RIGHT TO THREATEN STRIKES-I1
LAST
year the present writer suggested that the reasoning
in
Rookes
v.
Barnard
should be reconsidered.2
It
was argued, first, that the
little known tort of
‘‘
intimidation
”
should not be extended to
include
a
threat to break a contract-not least because,
if
it
is,
“the doctrine of privity
of
contract is strangely outflanked.” It
was suggested, secondly, that the combination
in
this case was
essentially one to induce breaches of contract; thirdly, that one
defendant, not being
a
contracting party, could not possibly have
done more than
induce
breaches; and lastly, that section
8
of the
Trade Disputes Act,
1906
(even if the tort of intimidation
were
extended), would anyway provide a defence for what had been
done.
The Court of A~peal,~ in reversing the judgment below, has, it
is
submitted (subject to any appeal to the House
of
Lords),
provided
clear and unanimous authority for the first and third arguments,
and strong support for the second; while two of their lordships have
upheld the wide interpretation of section
8.
This note on the judg-
ments in the Court
of
Appeal is by way of postscript to the writer’s
earlier article and attempts only to examine their meaning and
effect in the light of the authorities already advanced last year.‘
It
is, also, concerned, as was that article, with the
“
lawyer’s law,”
and with policy only in
so
far as it touches that law.
The Court
of
Appeal’s decision may be seen as a vigorous
reaffirmation
of
the
“
right to strike.” Such phrases are, of course,
compounded both of formal law and
of
social policy; and com-
mentaries
on
labour law necessarily cannot escape a mixture of both
elements.
An
acceptance of the policy of the Trade Union Acts
1
[1961]
2
All
E.R. 826;
[1961]
9
W.L.R.
438
(Sachs
J.).
2
“The Right to Threaten Strikes” (1961)
24
M.L.R.
67%
A
note which
disagreed with the last three arguments and,
by
implication, with
the
first,
appeared in [l96l] C8mb.L.J. 189 (Prof.
C.
J.
Hamson).
J
[1962] 2 All
E.R.
679; [1962]
3
W.L.R. 260
(C.A.).
Page
references
infra
are
to
the All E.R.
4
This
note
does
not repeat the authorities discussed last year.
518
VOL.
26
19
514
"HE
MODERN
LAW
REVIEW
VOL.
28
and Trade Disputes Act often entails a willingness
so
to construe
gaps
in
the common law cases that the effects of the statutes are
not nullified; whereas
a
view that the policies
of
the Act
of
1906
are
peculiar in the protection of trade disputes may easily influence
argument upon its construction or upon the common law liabilities.s
The facts of the present case compelled, at one level,
a
formal legal
decision; at another, a choice
of
policy. The interests of the collec-
tive group (composed of individual trade unionists whose freedom
to
bargain is proportionate to the strength of the group) stand
squarely counter to those of one individual worker who has resigned
from
the
uni0n.O
This conflict
of
interests did not go unrecognised
by the
Court
of Appeal'; but their Lordships avoided the traditional
trap for common lawyers in difacult questions of industrial law-
that of oversimplifying the problem into
"
D-vid
and
Goliath
''
terms. The
"
policy
"
of these judgments may be said to
be
that
which the struggles between courts and unions bequeathed to
modem
English industrial law, namely the recognition of the right
to strike for collective
union
interests; exclusion of industrial
combat
as
far
as
possible from the law courts
and,
where
it
must
enter, its regulation by the liberal policy and Queensberry Rules
of
the
1806
Act. But the formal legal argument concerning the conflict
of rights did not of course depend upon that policy; and
it
is here
of
interest to notice that the judgment (of Pearson
L.J.),
which
is,
perhaps, legally the most
"
formal," takes the narrower
(and,
the
writer would respectfully submit, less supportable) view of section
8
of
the Act. Even
80
this judgment most strongly finds
for
the
defendants at
common
law.
It
will
be
recalled that Rookes,
an
employee
of
B.O.A.C., had
ngigned
from
his
union,
A.E.S.D., in
1956.
Of the three defen-
dants two were
also
employed by B.O.A.C., Barnard (Chairman of
the
A.E.S.D.
branch) and Fistal
(a
local shop steward). The third,
Siverthorne, was not
an
employee of B.O.A.C.
(a
fact largely over-
looked by Sachs
J.)
but
a
paid divisional organiser of A.E.S.D.*
The three had been active in threatening B.O.A.C. that
a
strike
of
union
members would take place
if
Rookes were not withdrawn,
because
his
presence
as
a
non-unionist offended
an
informal
100
per
cent. union-membership agreement between the
union
and
6
See
[lOal]
Camb.
L.J.,
p.
197:
"
Curioon effects are likely
to
be produced
by
the
~ppli~tion
of
the
En
lirh
ruler
of
conrtxnction
to
any
ntatute,
an&
on-
very
onrioum
indeed
may
%e
expected
whea
the
ntatute
in itself
SE
highly
peculiar
an
thin
Ad."
On
the policy
of
the
Act
and the
courtn
EBB
a4
M.L.R.,
0
Com
are
the
article
of
R.
W.
Rideout
(1962)
25
M.L.R.
187
"Protection
of
the !tight
to
Work,"
who
recognines this conflict at p.
147.
7
Sellern
L.J.,
p.
683:
"
the union membern thought that their nolidarity in
membernhip
.
. .
was
more important than the well-being
of
the plaintiff.
.
. ."
8
See
especially Kahn-Freund
on
"
Labour
Law,"
Lou,
and
Opinion
in
England
in
the
20th
Centuq
(ed.
Cfinnberg), p.
216.
9
Silverthorne died before the ap a1
wan
heard: p.
58%
The union is
now
the Draughtsmen'r and Allied yhmiciann' Annociation.
p.
(188.
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