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of thirty years ago thought "peaceful persuasion. peaceful persuasion" was included in " obtaining or communicating information." The Courts, applying their ordinary principle as to the construction of statutes,1 have decided this is not so. The experience of thirty years since has shown that intimidation results from picketing" under whatever name it is included.
Our witnesses are unanimous against any extension of “picketing" by allowing" peaceful persuasion; " some of them think that " obtaining or communicating information" might be left if the members so attending were limited to two or three, but the great majority think picketing should be abolished altogether, and to do this I recommend that the proviso only of Section 7 of the Conspiracy, etc., Act, 1875, be repealed so that wrongfully and without legal authority watching and besetting the house, etc., of another with a view to compel him to do or abstain from doing any act which he has a legal right to do or abstain from doing may no longer be lawful, and this is the proposal which Sir Godfrey Lushington, also, recommends in his Report.
I am satisfied that the law, as at present declared, with this amendment would ensure sufficient protection both to employers and employed.
I have carefully considered the question of substituting the new Sub-section recommended in Recommendation (8) of the Majority Report, viz.:
Acts in such a manner as to cause a reasonable apprehension in the mind of any person that violence will be used to him or his family, or damage be done to his property.
It appears to me that, in effect, it comes to much the same thing as Sub-section (1) of Section 7 of the Conspiracy and Protection of Property Act, 1875, which it proposes to repeal, which is as follows:
Uses violence to or intimidates such other person or his wife or children, or injures his property.
1 See Maxwell on
Interpretation of Statutes," 3rd Edition, p. 38: "It is unquestionably a rule that what may be called the Parliamentary history of an enactment is not admissible to explain its meaning. Its language can only be regarded as the language of the three estates of the Realm, and the meaning attached to it by its framers, or by individual members of one of those estates, cannot control the construction of it."
It appears to make a new criminal offence "causing a reasonable apprehension in the mind of any person "in place of an existing criminal offence of "intimidation." But the new subsection is not only to take the place of that just quoted (Sub-section 1), but is also in substitution for the existing provision making "watching and besetting" a man's house a criminal offence.
Even if the proposal were limited to the repeal only of Subsection (1) I should not be prepared to accept it in substitution for the reasons stated hereafter. As a substitution for the watching and besetting" provisions at present existing, it seems to me entirely inadequate. It might have been at least a more adequate attempt to provide a like protection to that existing already if the words "or acts in combination with others so as to create a nuisance" had been added. My colleagues who have signed the Majority Report, in the course of their argument in Article 48 in support of Recommendation (8), remark that:
It must be remembered that if picketing amounts to a nuisance, it can be restrained, by injunction, and that a Trade Union which authorizes the nuisance can be made liable to a civil action.
Mr. Askwith, however, in his evidence pointed out that one of the objects of the Legislature was to substitute a provision which could be enforced summarily in the place of legal proceedings which could only be enforced by an extremely difficult and expensive process, i.e., by an action at law claiming an injunction and damages for any loss. Proceedings to abate a nuisance and an injunction would, in practice, be perfectly useless, because the strikers could put on separate men each time, which would mean that the injured party would have to bring, possibly, hundreds of actions in order to abate the nuisance. Even with the addition "or acts in combination with others so as to create a nuisance" I could not have accepted the new sub-section as a desirable substitution. I am not as acquainted with the law as my colleagues who have signed the Majority Report, but I do foresee, as a layman, that the Courts would be certain to be approached by one side or the other in order to obtain decisions as to the meaning and
interpretation of the words used in the new sub-section, whereas under the decision of the Court of Appeal in "Lyons v. Wilkins,” the employers are satisfied both in law and practice, and the Trade Unions of workmen, by their failing to appeal against it, appear to be satisfied that it is good law, however much they object to it in practice.
If the result of the substituted sub-section is in law to weaken the protection against intimidation which at present exists for employers and employed I am against it; if on the other hand, I am wrong as to the legal effect, and the result in law is merely by another method to achieve an equal protection to that now afforded, I must still prefer the present declaration of the law which has been accepted by both sides, whereas the new enactment would lead to new litigation and consequent great expense.
Recommendation IX. of the Majority Report.
(9)“ That an Act should be passed to enact to the effect that an agreement or combination by two or more persons to do or procure to be done any act in contemplation or furtherance of a trade dispute shall not be the ground of a civil action, unless the agreement or combination is indictable as a conspiracy notwithstanding the terms of the Conspiracy and Protection of Property Act, 1875."
The House of Lords in Quinn v. Leathem 1901 A. C. 495 decided that the Conspiracy and Protection of Property Act, 1875, Section 3 (which exempted combinations in trade disputes from the law of criminal conspiracy), had nothing to do with civil remedies.
This Recommendation (9) of the Majority Report would do away with the decision in Quinn v. Leathem. The facts of the case will be found quoted in Article 56 of the Majority Report.
I would, in addition, quote a few passages from the judg ments of the Law-lords who decided the case.
Lord Halsbury, Lord Chancellor, in his judgment (P. 585) remarks:
The plaintiff has proved to the satisfaction of a Jury that the defendants have wrongfully and maliciously induced customers and servants to cease to deal with the plaintiff, that the defendants did this
in pursuance of a conspiracy framed among them, that in pursuance of the same conspiracy they induced servants of the plaintiff not to continue in the plaintiff's employment, and that all that was done with malice in order to injure the plaintiff, and that it did injure the plaintiff. If upon these facts so found the plaintiff could have no remedy against those who injured him, it could hardly be said that our jurisprudence was that of a civilized community.
Lord Macnaghten (at P. 511) remarks: —
A man may resist without much difficulty the wrongful act of an individual . . . but it is a very different thing when one man has to defend himself against many combined to do him wrong.
Lord Shand (at P. 515) remarks:
They acted by conspiracy, not for any purpose of advancing their interests as workmen, but for the sole purpose of injuring the plaintiff and his trade. I am of opinion that the law prohibits such acts as unjustifiable and illegal; that by so acting the defendants were guilty of a clear violation of the rights of the plaintiff, with the result of causing serious injury to him.
Lord Brampton (at P. 530) remarks:
Much consideration of the matter has led me to be convinced that a number of actions and things not in themselves actionable or unlawful, if done separately without conspiracy may, with conspiracy, become dangerous and alarming, just as a grain of gunpowder is harmless but a pound may be highly destructive, or the administration of one grain of a particular drug may be most beneficial as a medicine but administered frequently and in larger quantities with a view to harm may be fatal as a poison.
Lord Lindley (at P. 537, 538, 541, 542) remarks:
It was contended at the bar that if what was done in the case had been done by one person only, his conduct would not have been actionable, and that the fact that what was done was effected by many acting in concert makes no difference. My Lords, one man without others behind him who would obey his orders could not have done what these defendants did. . . .
My Lords, it is said that the conduct which is not actionable on the part of one person cannot be actionable if it is that of several acting in concert. This may be so where many do no more than one is sup
posed to do. But numbers may annoy and coerce where one may not. Annoyance and coercion by many may be so intolerable as to become actionable, and produce a result which one alone could not produce.
But there are many ways short of violence, or the threat of it, of compelling persons to act in a way which they do not like. Is a combination to annoy a person's customers, so as to compel them to leave him unless he obeys the combination, permitted by the Act or not? It is not forbidden by Section 7; is it permitted by Section 3? I cannot think that it is. . . . It must be conceded that if what the defendants here did had been done by one person it would not have been punishable as a crime.
An illegal agreement, whether carried out or not, is the essential element in a criminal case: the damage done by several persons acting in concert, and not the criminal conspiracy, is the important element in the action for damages.
In my opinion, it is quite clear that Section 3 has no application to civil actions: it is confined entirely to criminal proceedings. Nor can I agree with those who say that the civil liability depends on the criminality, and that if such conduct as is complained of has ceased to be criminal it has, therefore, ceased to be actionable. On this point I will content myself by saying that I agree with Andrews, J., and those who concurred with him. It does not follow, and it is not true, that annoyances which are not indictable are not actionable. The law relating to nuisances, to say nothing of the law relating to combinations, shows that many annoyances are actionable which are not indictable, and the principles of justice on which this is held to be so appear to me to apply to such cases as these.
My Lords, I will detain your Lordships no longer. Allen v. Flood (2) is in many respects a very valuable decision, but it may be easily misunderstood and carried too far.
Your Lordships are asked to extend it and to destroy that individual liberty which our laws so anxiously guard. The appellant seeks by means of Allen v. Flood (2), and by logical reasoning based upon some passages in the judgments given by the noble Lords who decided it, to drive your Lordships to hold that boycotting by trades unions in one of its most objectionable forms is lawful, and gives no cause of action to its victims although they may be pecuniarily ruined thereby.
My Lords, so to hold would, in my opinion, be contrary to wellsettled principles of English law, and would be to do what is not yet authorized by any statute or legal decision.
Our witnesses have unanimously expressed their satisfaction with the law declared in Quinn v. Leathem, and those of our witnesses who have specifically dealt with the purport of Rec