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Published online by Cambridge University Press: 02 January 2018
‘Men are in the habit of taking an erroneous view of what they may be permitted to do in the shape of picketing.’
Throughout its history, the law on picketing has been a matter ofdispute between those who see any interference with an employer’s ability to carry on his business as wrongful, and those who see picketing as an essential and lawful part of that collective strength which is a prerequisite of effective bargaining. Sometimes the issue is seen as one of industrial relations, sometimes as one of civil liabilities and sometimes as one ofeconomic theory, but in the event the resolution of the debate has been mostly political. Over the past 170 years many attempts have been made to set the balance but a permanent answer cannot be achieved, since the economic and political considerations of each era will lead to a re-assessment of the appropriate balance.
1. Per Huddleston B in R v Bauld (1876) 13 Cox CC 282. See also Piddington v Bates [1960] 3 All ER 660 where the defendant said to the policeman ‘I'm going there and you can't stop me. I know my rights’. He pushed gently past the policeman and was gently arrested.
2. 5 Geo 4, c 95. This followed the Report of the Committee on Artisans and Machinery chaired by Joseph Hume.
3. The Committee reported on 16 Jun 1825 and appended the minutes of evidence which detailed much of the activity of unions over the previous year.
4. Evidence of W R Robinson, Sheriff-depute of Lanarkshire.
5. 6 Geo 4, c 129.
6. (1867) 10 Cox CC 592.
7. (1847) 5 Cox CC 495n. The case was only reported as a note to R v Rowlands in 1851, (1851) 5 Cox CC 436.
8. In the debate in 1853 on what was to become the Molestation of workmen Act 1859 he denied that there was any difference between his view and the stricter view of Erle J in R v Duffield.
9. (1851) 5 Cox CC 404.
10. See to the same effect R v Rowlands (1851) 5 Cox CC 436, another judgment of Erle J involving the same employer.
11. But only if the issue concerned hours of work or wages as combinations as to other issues where outlawed by the 1825 Act.
12. Memorandum on the law relating to trade unions printed as an appendix to the eleventh and final report of the Royal Commissioners on the Organisation and Rules of Trade Unions and Other Associations 1869.
13. For a full discussion of the progress of the 1859 Act see Orth. Combination and Conspiracy (1991), ch 8.
14. (1851] 5 Cox CC 436. The two were William Peel and Frederick Green of the National Association of United Trades.
15. (1847) 5 Cox CC 495.
16. (1851) 5 Cox CC 404.
17. Parl Debs, Vol 126, Col 1117 (4 May 1853).
18. Ibid, speech by M Chambers.
19. Parl Debs, Vol 129, Col 1324 (16 June 1853).
20. Parl Debs, Vol 153, Col 1625 (12 April 1859) (Earl of Airlie).
21. Orth, Combination and Conspiracy (1991) p 127.
22. There was still the point that the issue must relate to wages or hours of work as all other combinations were illegal. Note also that the words ‘peaceably and in a reasonable manner’ assumed great importance during the parliamentary debates on the Trade Disputes Act 1906.
23. (1867) 10 Cox CC 592. Stephen thought ‘the law was laid down far too widely’ in this case: Stephen's History of the Criminal Law, Vol 3, p 222.
24. Note also the earlier case of Walsby v Anley (1861) 121 ER 536 where it was held that an unlawful combination combined with a threat to damage an employer in his business amounted to molestation under the 1825 Act. Cockburn CJ said that if the men go further ‘and not content with simply putting the alternative to the employer, combine to co-erce him by threats of jointly doing something which is likely to operate to his injury …’ they could be guilty under the 1825 Act.
25. See also Spring Lead Spinning Co v Riley (1868) LR 6 Eq 551 where the defendants issued posters saying ‘Wanted all well-wishers to the Operative Cotton Spinner Association not to trouble or cause any annoyance to the Spring Lead Spinning Company, Lea, by knocking at the door of their office until the dispute between them and the self-actor minders is finally terminated’. This was declared to be a crime by Malins V-C who also issued an injunction. During a debate in the House of Commons in 1869 Thomas Hughes said ‘In the Queen v Hinchley a man had called out ‘Baa Baa Black Sheep’ and got for that three months imprisonment’.
26. The Sheffield Outrages related to the practice of'rattening' whereby the tools of a workman were seized either to ensure payment of arrears of union dues or compliance with the rules of the union. This was especially prevalent in the grinding trades. There had also been a history of attacks on property and on 8 October 1866 a can of gunpowder was exploded in the cellar of the house of Thomas Fearnehough who had left the Saw Grinders Union the year before. (No one was hurt but the house was extensively damaged). See the Report of the Royal Commission on Trade Unions, 1869, Appendix B.
27. They were Earl of Lichfield, Thomas Hughes and Frederic Harrison whose minority report was to be more influential that the majority report. Just after the Report was published a Bill (the Trades Union etc, Bill) was put up by Thomas Hughes and A T Mundella which, in part, was to repeal all criminal laws relating specifically to trade unionists, leaving them subject only to the general law. The Bill reached second reading but was then withdrawn. Par1 Debs, Vol 197, Col 1344 (7 July 1869).
28. For example the Earl of Morley oddly argued that watching was necessary in order for the union to ascertain whether a person was both working and collecting strike pay. Parl Debs, Vol 205, Col 1911 (2 May 1871).
29. Parl Debs, Vol 205, Col 1911 (2 May 1871).
30. The number limitation was removed on the motion of Lord Cairns: Parl Debs, Vol 206, Col 779 (15 May 1871).
31. (1872) 12 Cox CC 316.
39. The men were sentenced to 12 months' imprisonment but released after four months after strong representations to the Home Secretary by a specially formed Defence Committee. See also R v Hibbert (1875) 13 Cox CC 82.
33. Par1 Debs, Vol 212, Col 750 (5 July 1872).
34. (1847) 5 Cox CC 495 n.
35. Second & Final Report of the Commissioners to inquire into the working of the Master and Servant Act 1867 and the Criminal Law Amendment Act 1871 (C 1157, 1875). For a full account of prosecutions under the 1871 Act and of union opposition to it see Howell, Labour Legislation, Labour Movements, Labour Leaders (1902) ch 21.
36. (1869) 11 Cox CC 325.
37. This was the first use of ‘the golden formula’ and as Auerbach points out it was not intended to limit the effect of the provision but was only descriptive of industrial conflict. Auerbach, Legislating for Conflict (1990) p 80.
38. Ie. using violence, intimidation, persistently following, hiding tools and watching and besetting.
39. [1896] 1 Ch 811; [1899] I Ch 255.
40. Par1 Debs, Vol 226, Col 165 (29 July 1875).
41. [1896] 1 Ch811 (interlocutory proceedings); [1899] I Ch255 (permanent injunction).
42. See for example Mersey Docks v Verrinder [1982] IRLR 152.
43. This latter aspect will be discussed later.
44. At first instance the case had been run as simply one of inducing breach of contract or rather inducing a person not to enter into a contract of employment. The defendants were held liable, but this was before Allen v Flood in the House of Lords which would have confirmed that the actions were iawful.
45. [1896] 1 Ch811 at 822. In argument he had been even more blunt'You cannot make a strike effective without doing more than is lawful'.
46. In this view he had been preempted by Huddleston B, in R v Bauld (1876) 13 Cox CC 282 where he said that watching and besetting for the purpose of persuading men to quit employment was illegal. It was here that he also said ‘Men are in the habit of taking an erroneous view of what they may be permitted to do in the shape of picketing’, but then so had the House of Commons on this very point in 1875.
47. For an exhaustive discussion of this aspect of the case see Finkelman, ‘The Law of Picketing in Canada’ (1938) 2 Univ Tor LJ 67 and 344. See also generally Bercusson ‘One hundred years of conspiracy and protection of property’ (1977) 40 MLR 268.
48. [1891] 1 Ch 255.
49. (1906) 22 TLR 327.
50. This interpretation was accepted in Fowler v Kibble [1922] Ch 487 and Thomas v NUM [1986] Ch 20 at 61.
51. But note the remarkable episode of the Trade Disputes and Trade Unions Act 1927 (repealed in 1946) which expanded ‘intimidation’ for the purposes of the 1875 Act to include threats of economic loss to a business. This revival of the ‘ancient mode’ of legislation related directly back to the views of R u Duffield that interference with the management of a business should be unlawful, for in effect it rendered criminal the inducing breach of a contract by means of picketing. As originally drafted in the Bill intimidation even included ‘loss of any kind, or any exposure to hatred, ridicule or contempt’, but that was too much for that post general strike House of Commons.
52. Smith v Elsey 1983 SLT 34 (Sheriff court). The defendant was charged with wrongfully and without legal authority persistently following an Inland Revenue official to the post box during a civil service dispute.
53. [1896] 1 Ch 811 at 823.
54. [1975] 308. Lord Denning was dissenting but his was the only substantive judgement as the others relied on American Cyanamid principles.
55. [1982] IRLR 152 (Ch D).
56. See for example the debate on whether harassment on a highway amounts to private nuisance as proposed in Thomas v NUM [1986] Ch 20 at 64, but doubted in News Group v Sogat [1987] ICR 181 at 206.
57. Taff Vale Rly v ASRS [1901] AC 426.
58. Initially some trade unionists were willing to accept the view in Taff Vale that trade unions could themselves be sued in tort, at least so far as authorised acts were concerned, and it was not until 1903 that the TUC resolved to press for total immunity. See generally on this aspect of the 1906 Act, Kidner, ‘Lessons in trade union reform: the origin and passage of the Trade Disputes Act 1906’ (1982) 2 LS 1.
59. Par1 Debs, Vol 108, Cols 299 and 318.
60. Roberts, Trade Union Congress 1868–1921.
61. There had been yet another Royal Commission (the Royal Commission on Labour 1894, C 7421), but, although picketing issues were discussed briefly in para 103, no recommendations were made.
62. Bill No 84, introduced 4 February 1902, withdrawn 17 March 1902. This was sponsored by a number of Liberals together with the three Labour MPs, Abraham, Bell and Burt. It is noteworthy that Dilke was one of the sponsors seeing that his own Bill had been rejected by the Parliamentary Committee.
63. Bill 141, introduced 25 March 1902, withdrawn 12 May 1902. The sponsors Sir Charles Dilke, Richard Bell and Mr McKenna (a Liberal).
64. Bill No 7 introduced 20 February 1903. The Bill as presented contained a clause for the immunity of union funds but this was dropped on second reading because the Speaker decided that it did not comply with the short title which was to ‘legalise the peaceful conduct of trade disputes’. The Bill was sponsored by Shackleton, Bell, Dilke and Hardie among others.
65. Par1 Debs, Vol 22, Col 204 (8 May 1903).
66. ‘Royal Commission on Trade Disputes and Trade Combinations,’ Cmd 2825 (1906).
67. Bill No 8, introduced 5 February 1904, sponsored, inter alia, by Paulton (a Liberal) and Bell, Shackleton and Dilke. For some reason the Labour Representation Committee were not consulted on this Bill. A later Bill in 1904 (Bill No 91) sponsored by Dilke and Hardie used Dilke's original picketing clause from 1902.
68. Bill No 2, introduced 17 February 1905 and again sponsored by Bell, Shackleton and Dilke.
69. Bill No 151 introduced 6 April 1905.
70. Note for example the cutting editorial in The Times on 31 March 1906 that ‘the prime minister … showed only too clearly that the iron of Mr Keir Hardie's threats had entered his soul’. In fact Hardie had little to do with the day-to-day management of the Bill but he had said on 30 March ‘Whoever came into conflict with the movement of organised labour upon the question would live to rue the day that they ever entered the lists’ Parl Debs, Vol 155, Col 51 (30 March 1906). The Times comment may have been unfair as the Prime Minister (but not the cabinet) was sympathetic to the immunity clause: see Wilson A Life of Sir Henty Campbell-Bannerman (1973) p 595.
71. The Earl of Halsbury said ‘I confess that I acquiesce with the greatest reluctance in the course which my noble friend has advised the House to follow’ and of clause 4 (immunity of union funds) he said ‘Anything more outrageously unjust, anything more tyrannical, I can hardly conceive’ Parl Debs, Vol 167, Col 704 (17 December 1906). Lord Lindley was still fundamentally opposed to reform of the law: in The Times of 6 September 1906 he wrote that ‘to authorise by law the tyranny which [trade unionists] would be able to exercise over those who refuse to side with them would be utterly opposed to their liberty, would be manifestly unjust to them and to all who might be desirous of employing or working with them.’ He also said that ‘peaceable persuasion’ merely conceals the power of coercion.
72. Bill No 5, introduced 22 February 1906 and sponsored, inter alia, by Hardie, Shackleton, MacDonald, Bell and Dilke.
73. Bill No 134, introduced 28 March 1906 and sponsored by the Attorney General and the Solicitor General.
74. Parl Debs, Vol 162, Col 183 (27 July 1906).
75. Ibid, col 198; see also col 1069. A similar attempt was made in the House of Lords but Lord James of Hereford pointed out that it would be difficult to decide who were the legitimate three: Parl Debs, Vol 167, Col 280 (4 Dec 1906). This is still a problem today.
76. Parl Debs, Vol 164, Col 881 (9 November 1906).
77. Par1 Debs, Vol 154, Col 1503 (28 March 1906).
78. Parl Debs, Vol 162, Col 1629 (3 August 1906).
79. Parl Debs, Vol 164, Col 1459 (2 November 1906).
80. They wanted to add that the attending ‘shall not be held to be a nuisance’ for which see below.
81. Par1 Debs, Vol 163, Col 1420 (1 November 1906). Edward Carson was most scathing: ‘instead of trying to fritter away what he will know were easily administered difficulties in relation to this term, it would have been much more honest to get up and say ‘we are making one more, only one more, little concession to the Labour Party’.
84. [1974] ICR 84 at 90: see however the doubts of Lord Salmon at 96.
83. The phrase was re-inserted by the House of Lords and rejected by the Commons. The Lords decided not to insist on the amendment. Par1 Debs, Vol 167, Col 1465 (17 December 1906).
84. [1967] 3 1 QB 91.
85. The Industrial Relations Act also removed the protection for picketing a person's house and that was not re-instated in the 1974legislation.