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The British Trade Disputes Act of 1927

Published online by Cambridge University Press:  01 August 2014

Alpheus T. Mason
Alpheus T. Mason*
Affiliation:
Princeton University
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Extract

One does not speak of the rights of American trade unions glibly or in off-hand fashion. Unlike the English policy of defining the rights of labor by legislative enactment, our legislatures, both federal and state, have been particularly slow to make such definition. Such predicability as the labor law has thus far assumed has been largely the work of the courts. Here, in other words, we discover the rights of trade unions in the opinions of the courts; in England, we have been accustomed to look to the statute-book rather than to judicial opinions. Comparatively, English labor law has at least enjoyed the merit of being reasonably predicable. The acts of 1859, 1871, 1875, 1906, and 1913 were all designed either to make the existing law more definite or to overturn a judicial interpretation of the law adverse to labor. Thus, by the year 1927 the law was rather definite. The statutes contained statements of what labor could or could not do. A reading of the recent Trade Disputes and Trade Unions Act of July 29, 1927, raises the question whether this legislation marks a change in the English policy of fixing the rights of labor by legislative definition.

The immediate occasion for the recent act was the general strike of May, 1926. Introduced and rushed through Parliament by the present Conservative government, this measure failed to receive the preliminary study and consideration that preceded the introduction of the acts of 1871 and 1906.

Type
Foreign Governments and Politics
Information
American Political Science Review , Volume 22 , Issue 1 , February 1928 , pp. 143 - 153
Copyright
Copyright © American Political Science Association 1928

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References

1 22 Vict. c. 24 (1859).

2 34 and 35 Vict. c. 32 (1871).

3 38 and 39 Vict. c. 86 (1875).

4 6 Edw. VII c. 47 (1906).

5 2 and 3 Geo. V c. 30 (1913).

6 17 and 18 Geo. V c. 22 (1927).

7 A memorandum report of the findings of the royal commission of 1869 may be found in SirErie's, WilliamThe Law Relating to Trade Unions (London, 1869)Google Scholar. Sir William was chairman of the commission and formerly chief justice in the Common Pleas. Cf. Report of the Royal Commission on Trade Disputes and Trade Combinations, 1906. Cd. 2,825.

8 Parliamentary Debates (5th Series), Vol. 205, p. 1793Google Scholar.

9 Ibid., p. 1305.

10 London Times, April 26, 1927. See the speech of Sir Arthur Steel-Maitland.

11 As to the law on trade union benefits, Justice Astbury continued: “No member of the plaintiff union or any other trade unionist in this country can lose his trade union benefits by refusing to obey unlawful orders, and the orders of the Trade Union Congress and the unions who are acting in obedience thereto in bringing about the so-called general strike are unlawful orders, and the plaintiff union is entitled to have this fact made clear and brought to the attention of its members.” Further, the justice explained: “The trade union funds in this country are held in a fiduciary capacity and cannot legally be used for or depleted by paying strike pay to any member who illegally ceases to work and breaks his contract without justification in pursuance of orders which are unlawful.” These propositions are reënacted in Clause 2 Of the Trade Disputes and Trade Unions Act, 1927. This opinion delivered in the High Court of Justice, Chancery Division, May 11, 1926, is reported in full in Appendix II of Sir John Simon's collection of speeches published by the Macmillan Company under the title The General Strike.

12 The Law Relating to Trade Unions (London, 1921), pp. 72–73Google Scholar.

13 London Times, April 26, 1927, p. 9.

14 Parliamentary Debates (5th Series), Vol. 205, pp. 1654–1655Google Scholar.

15 This line of reasoning is strikingly similar to that of Chief Justice Taftin the case of United Mine Workers v. Coronado Coal Co., 259 U. S. 344 (1922). Here, in the face of judicial precedent to the contrary, the Chief Justice declared largely by way of an obiter dictum that trade unions are legal entities, and, as such, are suable in their corporate capacity. Any other ruling, he argued, would produce a situation wherein “the legislature has authorized the creation of numerous bodies of men capable of owning great wealth and of acting by agents with absolutely no responsibility for the wrongs that they may do to other persons by the use of that wealth and the employment of those agents.” Chief Justice Taft cited, in this connection, the famous Taff Vale case (1901) A. C. 426, the first English case on record in which the question of the liability of a trade union was distinctly raised and in which a court of law pronounced a trade union liable in action for tort. The effect of the Trade Disputes Act of 1906 was to nullify the Taff Vale decision and grant trade unions certain immunity from the law of torts. It was against this very type of immunity that both Chief Justice Taft and Prime Minister Baldwin were arguing. It should be noted, however, that Taft was speaking as a member of the Supreme Court of the United States, and his opinion has been followed in lower federal and state courts. Mr. Baldwin was speaking as a member of the House of Commons and advocating legislation to cover the point. His objections to the existing law in this regard are covered in the recent act.

16 London Times, April 26, 1927.

17 Parliamentary Debates (5th Series), Vol. 205, p. 1507Google Scholar.

18 Ibid., p. 1305.

19 A similar provision with reference to the lockout is also provided in this clause. The bill, as originally framed, however, was directed merely against illegal strikes.

20 10 and 11 George V c. 55 (1920).

21 Interesting discussion of this clause will be found in Parliamentary Debates (5th Series). Vol. 206, p. 1607Google Scholar.

22 Italics are mine.

23 For the debates on this clause see Parliamentary Debates (5th Series), Vol. 206, p. 2060 ff.

24 Parliamentary Debates (5th Series), Vol. 207, p. 35 ffGoogle Scholar

25 Members of the Labor party feel sure that the effect of the act will be disastrous. “There cannot be the slightest doubt,” one member declared, “that if this bill does become law the workers of this nation will be thrown back into a position exactly identical with that which they occupied 103 years ago, before the repeal of the ‘combination laws’ under the government of William Pitt.” Parliamentary Debates (5th Series), Vol. 205, p. 1579Google Scholar.

26 The fact is that the language of this statute is such that its effect cannot be definitely known until it is interpreted by a court of law. In this connection, see the speech of SirSlesser, Henry, Parliamentary Debates, Vol. 206, p. 1015 ffGoogle Scholar.

27 From a speech of Mr.Lloyd-George, . Parliamentary Debates (5th Series), Vol. 205, p. 1804Google Scholar.

28 “The attorney-general,” one member declared, “with the expression of a cherub from an old Italian painting, hides behind a seraphic face one of the keenest brains in this country. He knows how to draft a bill, if he wants to draft it, so that the people who read it can understand it. He knows that perfectly well. I suggest that this bill in its drafting is quite deliberate for the purpose of making the trade unions a cote of pigeons for the lawyers to pluck.” Parliamentary Debates (5th Series), Vol. 205, p. 1679Google Scholar.