Rookes v. Barnard and the trade union question in British politics

• Author: Paul Smith
• Date: 01 November 2019
• Published date: 01 November 2019
• DOI: http://doi.org/10.1111/irj.12269

Rookes v. Barnard and the trade union

question in British politics

Paul Smith

ABSTRACT

In the 1950s, given the scope of the Trade Disputes Act 1906 that had granted immu-

nity against specific torts (civil wrongs) to organisers of industrial action, the courts

had little role in industrial relations. Hence, the importance of the House of Lords de-

cision in 1964 that, in threatening to strike to secure Douglas Rookes’s removal from

the Heathrow design office of the British Overseas Aircraft Corporation after his res-

ignation from the union, Alfred Barnard and others had used unlawful means because

a threat to break a contract of employment came within the tort of intimidation that

was unprotected by the Trade Disputes Act’s statutory immunities, and thus, they

were liable to pay damages to Rookes. The legal arguments deployed are analysed

within growing unease in the Conservative Party and among employers at the emer-

gence of workplace union organisation and national strikes. Despite being partially

neutralised by the Trade Disputes Act 1965, Rookes was a harbinger of a new judicial

activism that outflanked trade unions’tort immunities by creating novel common law

liabilities. This in turn laid the political basis for subsequent Conservative legislation

to restrict and regulate trade unions and industrial action, a project that is ongoing.

1 INTRODUCTION

What is puzzling, but sociologically interesting, is why, when all this [judicial restriction of the Trade

Disputes Act 1906] could have happened in a dozen cases after 1918, did it happen in the sixties?

(Wedderburn 1965: 213)

Soon after its election in October 1964 and after soundings as to terms of reference

and composition, the Labour government of Harold Wilson announced the creation

of the Royal Commission on Trade Unions and Employers’Associations (chair, Lord

Donovan) the same day as it published the Trade Disputes Bill that neutralised

(though only in part) the House of Lords’decision Rookes v. Barnard and Others

[1964].

1

For Otto Kahn-Freund, this decision constituted ‘a frontal attack on the right

to strike’(Kahn-Freund [1964] 2017: 81) because the Law Lords had held that a

threat to break a contract of employment came within the tort of intimidation that,

as such, was unprotected by the statutory immunities enacted by the Trade Disputes

Act (TDA) 1906 (Saville 1996). The support and cooperation of the Trades Union

Correspondence should be addressed to Paul Smith, E-mail: paulsmithblist@hotmail.co.uk

1

Rookes v. Barnard and Others [1964] AC 1129 (HL). The Judicial Committee of the House of Lords (com-

posed of the Law Lords) was instituted in 1876 and replaced by the Supreme Court in 2009.

Industrial Relations Journal

ISSN 0019-8692

© 2019 Brian Towers (BRITOW) and John Wiley & Sons Ltd

50:5

–6, 431

–449

Congress (TUC) for the Donovan Commission was contingent on the passage of the

Trade Disputes Bill.

The Rookes decision and the Donovan Commission report were very different re-

sponses to a longstanding debate on the role of trade unions—the ‘trade union prob-

lem’—and the need for ‘order’in industrial relations. Early murmurings of disquiet

within the Conservative and Unionist Party had developed into open discontent

among some employers so that by the early 1960s a powerful and vocal lobby—in-

cluding the media—had been mobilised for the ‘reform’of trade unions, that is, legal

regulation of their organisation and the restriction of industrial action.

This was the political context for the Rookes case. For Bill Wedderburn (as he then

was), ‘What is puzzling, but sociologically interesting, is why, when all this [judicial

restriction of the Trade Disputes Act 1906] could have happened in a dozen cases after

1918, did it happen in the sixties?’(Wedderburn 1965: 213). This article offers a his-

torical explanation for this conundrum. The first two sections discuss the develop-

ment of industrial relations legacy to 1940 and the changes underway from 1945,

accelerating in the 1950s; the third, the political agenda underlying the Rookes

decision; and the fourth, the Rookes case itself. The conclusion assesses the case’s im-

portance as a catalyst in the campaign to reform the law on trade unions and indus-

trial action.

2 THE ‘SYSTEM’OF INDUSTRIAL RELATIONS, 1875–1940

In 1959, Otto Kahn-Freund coined the label ‘collective laissez-faire’to describe the

‘system’of industrial relations in Britain (Kahn-Freund 1959: 224; 1978: 8). Develop-

ing incrementally as a result of decisions by governments, employers and trade unions

from at least the passage of the Conciliation Act 1896, its distinguishing feature was

the role of the collective parties—trade unions and their federations, employers and

their associations (including some national federations)—in voluntary collective

bargaining. For Kahn-Freund, there was no direct role of the state or the law in this

process; there was a supportive one, however. Hence, some of the most important

‘gaps’in collective bargaining were filled by statutory trade boards and later wages

councils (staffed by representatives of employers’associations and trade unions and

independent members),

2

which established statutory minimum rates of pay and con-

ditions in specific sectors. Many workers remained outside collective agreements but

legal and institutional rules (e.g. the ‘Fair Wages Resolutions’of the House of Com-

mons and other public bodies, which stipulated that contracts were to be awarded to

firms that observed the relevant collective agreement), custom and practice, and la-

bour market imperatives meant that the ‘going rate’for trades, occupations and in-

dustries, established by collective agreements, extended far wider in practice.

Underpinning this system was a legal ‘right to strike’or, more correctly, the free-

dom to strike. This had been created incrementally by means of statutory immunities

against the criminal and civil law that otherwise imposed restrictions and sanctions

against trade unions and industrial action. There were two stages in this process.

In the first, the Trade Union Act 1871 (as amended in 1876) and the Conspiracy

and Protection of Property Act (CPPA) 1875 excluded, respectively, the application

of the common law doctrine of restraint of trade to trade unions and criminal liability

2

Trade Boards Acts 1909 and 1918; Wages Councils Acts 1945 and 1948.

Paul Smith

© 2019 Brian Towers (BRITOW) and John Wiley & Sons Ltd

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