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His Lordship then proceeded to say that, whatever the meaning attached to the expression "directly," the result for the present purpose must be the same, because, in his opinion, the object of the litigation was not to enforce an agreement for the application of the funds of the Union to provide benefits for members within Section IV., 3 (a).
The object of the litigation was to obtain an authoritative decision that the action of the Union, which was challenged by the plaintiff, was not authorized by the rules of the Union. The decision might take the form of a declaration or the form of an injunction, or both combined. But the decision, whatever form it might take, would be the end of the litigation. No administration or application of the funds of the Union was sought or desired. The object of the litigation was simply to prevent misapplication of the funds of the Union, not to administer those funds or to apply them for the purpose of providing benefits to members.
And later on:
The proceedings which the plaintiff has instituted do not, I think, involve the administration of the funds of the Yorkshire Miners' Association collected for benevolent purposes or the application of those funds to provide benefits for members. Nor was the litigation, as it seems to me, instituted with that object. It was simply an application to the Court to determine the true construction of certain rules which had been, as the plaintiff contended, misconstrued by the Executive of the Association. I need hardly point out how disastrous it might be to the funds of this Union, and to Trade Unions generally, if there were no means of preventing the managers and masters of the Unions from diverting the funds from their legitimate and authorized purpose.
The House of Lords expressed their approval of Wolfe v. Matthews, but did not overrule Rigby v. Connol or any of the other cases. In affirming the decision of the Court of Appeal · they varied the Order. The Order as varied was more precise and at the same time contained no injunction: it was a simple declaration that the payment of strike pay to the financial members of the Yorkshire Miners' Association in pursuance of a resolution of the Council of the Association (which the Order particularized by its date and the date of its confirmation) was in contravention of the rules of the Association, and that the said resolution purporting to authorize such payment was ultra vires and illegal.
The House of Lords as a judicial Tribunal could take no cognisance of the declarations made in Parliament previous to the passing of the measure in 1871. Those declarations, it appears to me, point to the objects of Parliament in the legislation of 1871 as having been -- if I may so describe them that the general purposes of a Trade Union which were in restraint of trade should not be directly furthered by the enforcement of agreements themselves in restraint of trade, viz., the agreements mentioned in Sec. 4, and constituting the "primary" agreements described by Mr. Bruce and Lord Morley — but might be indirectly furthered by enforcement of agreements not in themselves in restraint of trade (as an agreement to take a lease of business premises) — the "secondary" agreements described by Lord Morley. If this be so, then it is clear, from the decision in Howden v. Yorkshire Miners' Association, that the actual terms of the Statute are not adapted to give effect to what in 1871 was the intention of Parliament, and authorize the Courts to exercise a wider control over Trade Unions than was at that time contemplated. In the present instance the intervention of the court stopped a great strike. The full scope, however, of the decision of the House of Lords can hardly be estimated. until it has been ascertained how far it affects the law as laid down in Rigby v. Connol, and other like cases which have not been overruled.
For these reasons I have thought it right to call attention to this case, but I do not suggest any amendment of the Statute. The Trade Unions have not, so far as I am aware, made any protest against the law as laid down by the House of Lords, and that law is, in my opinion, advantageous for the public and also for Trade Unions.
The Report recommends that Trade Unions should be declared by Statute to be legal associations. But how can a Trade Union be declared to be a legal association any more than a company can be declared a legal company? Each is presumably legal until it pursues purposes which as a whole are unlawful; then it ceases to be so. In my opinion, at all events for all such Trade Unions as might become incorporated (in pursuance of a suggestion presently to be mentioned), nothing more in this direction can be done by the Legislature than has been done
by Sec. 3 of the Act of 1871, which enacts that the purposes of any Trade Union shall not, by reason merely that they are in restraint of trade, be unlawful so as to render void or voidable any agreement or trust.
Then as to the recommendation that facultative powers be given to Trade Unions either (a) to become incorporated subject to proper conditions, or (b) to exclude the operation of Sec. 4 of the Trade Union Act, 1871, or of some one or more of its Subsections, so as to allow Trade Unions to enter into enforceable agreements with other persons and with their own members to secure such enforcement. From a general point of view I am not aware of any objection to the grant to Trade Unions of Incorporation "subject to proper conditions." Incorporation is an organization which is slightly more convenient than that which registered Trade Unions now possess, and is of neutral significance, being granted by Statute indiscriminately to companies within the Companies Acts. Only in my judg ment the proper conditions to be attached to Incorporation would be the conditions pertaining to registered Trade Unions. Of course if Incorporation were assumed, it would be assumed once for all, though it would be possible to devise conditions that might from time to time vary according to circumstances.
The somewhat indefinite proposal, however, of the Report for the grant either of Incorporation subject to proper conditions or of power to exclude Section 4 of the Act of 1871, or one or more of its Subsections, is made only for a particular purpose, viz., to enable enforceable contracts being entered into between a Trade Union of Workmen and a Trade Union of Employers for the regulation of terms of employment. Trade Unions have not asked for power to enter into such agreements and to all appearances are not likely to do so; I do not therefore think the prospect of such agreements is sufficient to justify any change, much less so serious a change in the status of Trade Unions as is involved in either of these alternatives, for the two in this respect are presumably the same. The same provisions of Section 4 of the Act of 1871 would have to be dispensed with, whether there was Incorporation or not. But to dispense with Section 4, or any of the more important of its Subsections, would really be to subvert the constitution which Trade Unions
now have under the law. From an equitable point of view, it may be reasonable that a Trade Union if it is to be responsible in damages to employers for breach of agreement by its members shall in order to protect its funds have legal power to compel its members to continue their stipulated contributions and legal power to prevent them from working on terms contrary to the stipulations; and if so, then in turn it would be reasonable that members, being thus liable to have their obligations enforced against them, should have legal power to sue the Union for benefits to which they are entitled. The power to sue for benefits is one to which nobody probably would object except the Unions themselves. But I think Parliament would decline to allow the law to be used to prevent workmen from working or to compel workmen to maintain a Trade Union. I therefore altogether dissent from the Recommendation.
I dissent from the proposal in the Report to strike out from the list of offences made punishable by Section 7 of the Act of 1875 the watching and besetting of premises. This proposal, I understand, is made on the ground that the practice is (notwithstanding the words in the Section " with a view to compel") presumably for a legitimate purpose, that of reasonable persuasion, and that cases of abuse are sufficiently met with by other provisions of the law; if watching and besetting amount to intimidation, a criminal offence is committed under the Statute: if to a public nuisance, an indictment will lie: if to a private nuisance, the aggrieved person has a right of action and may apply for an injunction. Experience, however, has shown that in cases of this description the remedy of an indictment at the next Quarter Sessions is illusory; still more so is an action at law against persons who do not possess the means to make reparation; nothing is really effective to put a stop to misconduct of this kind but criminal proceedings in a Court of Summary Jurisdiction. It was doubtless for this reason that Parliament in 1875, whilst by Section 3 excluding to a certain extent indictments for conspiracy, passed Section 7 making such acts of molestation as were likely to be committed in times of strike offences summarily punishable with imprisonment. Amongst
these was watching and besetting of premises
less an act of molestation than other of the acts mentioned in that Section. In my opinion, even supposing that the sole purpose was that of peaceable persuasion, watching and besetting of the premises ought not to be permissible. It is quite different from peaceable persuasion without watching or besetting, or from anything which workmen are at liberty to do in their own interest, though it may operate to the inconvenience of others: it is an act of direct interference and aggression, and ought to be forbidden as a trespass on the comfort of others. But to make the supposition that the object is only peaceable persuasion is to take a far too optimistic view of the matter; the reality is very different. As is stated in the Report, the evidence which the Commission has received is overwhelming to show that watching and besetting for the purpose of peacefully persuading is really a contradiction in terms. It always operates as compulsion, and it cannot be doubted that because it is found to compel Trade Unions systematically resort to it. To judge the matter aright, it is necessary to bear in mind the excited condition of feeling amongst workmen in times of strike. I am not referring to graver cases where acts of violence have been committed, or where the maintenance of order has become a serious difficulty to the police, or where it has been found necessary to provide special accommodation for workmen electing to work so as physically to separate them from those on strike, though all these are contingencies that may easily arise. I am referring to ordinary strikes, and as to these it is sufficient to recall the language of opprobrium in which the leaders of the strike in their public harangues habitually speak of those who have not joined the strike, in order to form a conception of the language which the rank and file sent out under the orders of these same leaders to act as pickets are likely to use in their dialogues with workmen who think fit to continue to work. When systematic picketing has been established a workman cannot enter or leave his place of work without being liable to be intercepted and interviewed by those who are watching and besetting the place for the purpose, and who, even if numbering only one or two, represent a large number of workmen on strike, smarting under what they consider to be a grievance, suffering from want of