Conspiracy and the Trade Unions since 1920
The threat of industrial strife is almost as damaging to the welfare of the nation as the threat of war (A.F. Wilcox, The Decision to Prosecute, 1900).
This comment by a former Chief Constable shows how seriously industrial disputes are regarded by English agencies of law enforcement. One of the means by which the threat has been countered is the law of conspiracy: this chapter aims to show that the function of that law is essentially the same today as it has been for at least 200 years.
Between 1920 and 1964, trade disputes were, as a rule, kept out of both civil and criminal courts. There are one or two exceptions, but the general impression gained from the Law Reports is that litigation, and adjudication, in the industrial context, was extremely rare in the first half of the 20th Century. Just as in Ireland, and in the area of overtly ‘political’ cases, there has ben no consistently chronological development of conspiracy as it affects trade unions, but rather to distinct phases of intense activity. This phenomenon is confirmed by O’Higgins and Partington’s limited statistical survey of decisions by the higher courts in cases concerning industrial conflict between 1871 and 1969. Their main conclusion was that the survey revealed less evidence of judicial bias than might have been expected. They also commented:
Why is it that there are so few cases coming before the courts? One may especially comment here on the paucity of cases in the 1920s and ‘30s even though this was a period of exceptional industrial unrest. Part of the explanation may lie in the belief common to both sides of industry that lawyers and the courts are best kept out of the field of industrial relations. In addition, there is a widespread belief among trade unionists that the law is weighted against them.
After cases like Taff Vale, it is perhaps hardly surprising that trade unionists lost confidence in the neutrality of the courts. One might add that, while this lack of confidence helps to explain the paucity of civil cases, it does not apply to criminal prosecutions where there is no question of choice by the defendant. Another point is that, after the passing of the Trade Disputes Act 1906, which gave the unions immunity from liability in tort, judges were more ready to accept their legitimacy and battles between employer and employee were less often fought out in the courtroom. But the main question remains: if the growth of conspiracy law reflects the strength of movements against the state, and can be seen as a response to threats, real or imagined, by dissident groups, then why are the Law Reports not full of conspiracy cases decided during the First World War, the General Strike, the depression of the 1930s and the Second World War?
Conspiracy and the Great 20th Century Emergencies
So far as the First World War was concerned, the government reacted to industrial disputes not with common law doctrines but with the Defence of the Realm Acts 1914 and 1915, which gave the King in Council ‘such powers as may be necessary for the efficient prosecution of the war’. This meant the imposition of a comprehensive system of state control over industry an agriculture, with the extension of the jurisdiction of courts-martial, and the effective supremacy of military law. As in Ireland, where the Easter Rising showed that the English state would drop the mask of legitimacy and invoke military reprisals when a real threat developed, so the British mainland was governed almost exclusively by statutory powers from 1914 until 1919. There was no room for conspiracy law.
The General Strike of 1926 was not without its conspiracy trials: we have seen how the leadership of the Communist Party was effectively removed from the preparatory stages of the strike by a prosecution for seditious conspiracy. The General Strike itself was declared illegal in Parliament by Sir John Simon, a former Attorney-General, and by Mr Justice Astbury. Astbury, who had been appointed to the Bench during Simon’s period of office as Solicitor-General, issued an injunction preventing the Firemens’ Union from joining the Strike, in a case described by Goodhart as ‘an off-hand judgement given in a case where the defendants were not represented by counsel’. Astbury ruled:
The so-called General Strike called by the TUC council is illegal, and persons inciting or taking part in it are not protected by the Trade Disputes Act 1906. No trade dispute has been alleged or shown to exist in any of the unions affected, except in the miners’ case, and no trade dispute does or can exist between the TUC on the one hand and the Government and Nation on the other.
This meant that, in theory, the leaders of all the unions involved could be made liable for damages in conspiracy, but Astbury’s judgement was refuted by Goodhart in an essay published in 1927. In his view, the General Strike was clearly a trade dispute – any coercion of the government was merely incidental – and if Astbury was implying that the Strike was criminal, then it could only be so under the doctrines of seditious conspiracy. The failure of the Strike was not followed by a mass of prosecutions, so we may perhaps assume that prosecutors felt that Goodhart’s view was more accurate than Astbury’s. Half a century later, Lord Denning followed Astbury: he prevented the steelworkers’ union from instructing its members employed in the private sector to strike, on the basis that the steel strike was not a trade dispute but a political matter, aimed at putting pressure on the government. The House of Lords took a similar view to Goodhart and overruled Denning’s judgement.
In legal terms, one result of the General Strikers’ defeat was the passing of the Trade Disputes and Trade Union Act 1927 which outlawed sympathetic and political strikes. This statute remained in force throughout the depression years of the 1930s, and may help to explain the dearth of conspiracy cases, both civil and criminal, during that period. During the Second World War, the Act was supplemented by the Emergency Powers (Defence) Acts which gave the government power to issue regulations, giving it complete control over persons and property. Defence Regulation 1AA made it an indictable offence to ‘instigate or incite’ a stoppage of essential work: Regulation 58A gave enormous powers to the Minister of Labour (Ernest Bevin) and prohibited all strikes unless 21-days’ notice was given to the ministry. With statutory powers of this magnitude, conspiracy law became irrelevant. Kahn-Freund has pointed out that the really important feature of the emergency legislation was its disappearance soon after the cessation of hostilities. In October 1948 an unofficial dock strike started in Bristol, in support of Canadian seamen who were in dispute with their employers. Troops were used to move cargoes from the docks but no prosecutions were brought under Defence Regulations still in force – arguably because the use of such criminal sanctions could have led to a national official strike. Two years later, when the government did attempt to apply the Regulations, they were convincingly defeated by striking gasworkers. We may perhaps conclude that the English state would prefer to use ‘legitimate’ common law sanctions whenever possible in place of emergency powers, and that the repeal of such powers is a tribute to the strength and determination of the trade union movement.
Developments in Civil Liability
The great civil trials involving trade unionists did not entirely disappear during the 1920s and ‘30s. In Reynolds v Shipping Federation the judiciary accepted the concept of the closed shop and expressed approval of a system of collective bargaining between unions and employers. The shipowners’ federation, comprising the bulk of owners of shipping in the UK, had agreed with the seamen’s union that they would only employ members of that union on their ships. A member of another union was refused employment as a greaser, and he sued the Federation for conspiracy. It was held that, since the agreement was entered into not from a malicious desire to inflict loss on an individual or class of individuals, but from a desire to advance the business interests of employers and employed alike, by maintaining the advantages of collective bargaining and control, it was not unlawful and no action for conspiracy was maintainable.
Mr Justice Sargant showed how dramatic the change in judicial attitudes had been by declaring that
…for many years past no-one has questioned the right of a trade union to insist, if they are strong enough to do so, under penalty of a strike, that an employer shall employ none but members of the trade union…the result of any such effective combination of workmen has been to impose on the other workmen in the trade the necessity of joining the union as a condition of obtaining employment. Here, the employers, instead of being forced against their wills into employing union men only, have recognised that advantages may arise from adopting such a course voluntarily, and have accordingly made an agreement with the trade union to that effect. The incidental result to the other workmen in the trade is the same as if the employers had yielded against their wills instead of agreeing voluntarily. But I fail to see that workmen who are unwilling to join the union have any greater reason to complain of a violation of their legal rights in the second case than in the first.