The Trade Disputes Act
The first claim of the Labour Party was for the statutory reversal of the Taff Vale judgement, which every one now admitted to be necessary. The question was what should be done. There were, substantially, only two alternatives. One was that, in view of the difficulty of effectually maintaining it against legal ingenuity, the Trade Unions should forgo their position of being outside the law, and should claim, instead, full rights, not only of citizenship, but actually of being duly authorised constituent parts of the social structure, lawfully fulfilling a recognised function in industrial organisation. But for the Trade Union to become, not merely an instrument of defence, but actually an organ of government in the industrial world, required a great advance in public opinion. It assumed an explicit recognition of the legitimate function of the Trade Union, as the basis of a Vocational Democracy, exercising a definite share in the control and administration of industry. It involved a complete transformation of both the criminal and the civil law, so that workmen’s combinations and strikes, together with peaceful picketing in its legitimate form, should be unreservedly and explicitly legalised; the law of civil conspiracy practically abrogated, so that nothing should be unlawful when done in concert with others which would not be unlawful if done by an individual alone; and reasonable limits set to liability for the acts of agents and to the scope for injunctions, so that a Trade Union Executive would be able both to know the law and to be ensured against its perversion. The alternative was to make no claim for the profound advance in Trade Union status that would be involved in such a policy; to forgo any hope of satisfactory or complete amendment of the law, and merely to re-enact the exceptional legislation of 1871, this time specifically insisting that a Trade Union, whether registered or not, should be put outside the law, and made expressly immune from legal proceedings for anything, whether lawful or unlawful, done by its officers or by itself. The outgoing Conservative Government had appointed in 1903 a small Royal Commission to consider the state of the law as to Trade Unionism, before which the Trade Unions had refused to give evidence, because the Commission, which was made up almost entirely of lawyers, included no Trade Unionist. This Commission, it is believed, was told privately not to report until after the General Election, in order that the Conservative Government might not be embarrassed by the dilemma. Early in 1906 it reported in favour of the Trade Union accepting full responsibility for its own actions, subject to considerable, but far from adequate, amendments of the law.[659] This proposal was definitely rejected by the Labour Party, which introduced a Bill of its own, merely restoring the position of 1871. When the Liberal Government brought in a Bill very much on the lines of the Commission’s Report, there was a dramatic exhibition of the electoral power that Trade Unionism, once it is roused, can exercise in its own defence. Member after member rose from different parts of the House to explain that they had pledged themselves to vote for the complete immunity which Trade Unions were supposed to have been granted in 1871. Nothing less than this would suffice; and the most powerful Government hitherto known was constrained, in spite of the protests of lawyers and employers, to pass into law the Trade Disputes Act of 1906. [660]
The Trade Disputes Act, which remains (1920) the main charter of Trade Unionism, explicitly declares, without any qualification or exception, that no civil action shall be entertained against a Trade Union in respect of any wrongful act committed by or on behalf of the Union; an extraordinary and unlimited immunity, however great may be the damage caused, and however unwarranted the act, which most lawyers, as well as all employers, regard as nothing less than monstrous.[661] At the same time the Act, whilst not abrogating or even defining the law as to civil conspiracy, gives three exceptional privileges to Trade Union officials by declaring that, when committed in contemplation or furtherance of a trade dispute, (1) an act done in concert shall not be actionable if it would not have been actionable if done without concert; (2) attendance solely in order to inform or persuade peacefully shall be lawful; and (3) an act shall not be actionable merely by reason of its inducing another person to break a contract of employment, or of its being an interference with another person’s business, or with his right to dispose of his capital or his labour as he chooses. These exceptional statutory privileges for the protection of Trade Union officials in the exercise of their lawful vocation, and of “pickets” in the performance of their lawful function—in themselves a triumph for Trade Unionism—have ever since excited great resentment in most of those who are not wage-earners. Some friends of the Trade Unions expressed at the time the doubt whether the policy thus forced upon Parliament would prove, in the long run, entirely in the interest of the Movement; and whether it would not have been better to have chosen the bolder policy of insisting on a complete reform of the law, to which, when properly reformed, Trade Unions should be subject in the same way as any other associations. The lawyers, as it proved, were not long in taking their revenge.