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From International Socialism, No.16, Spring 1964, p.3.
Transcribed & marked up by Einde O’Callaghan for ETOL.
The decision of the House of Lords in the case of Rookes v. Barnard will have serious consequences for trade unionists. It may well be the beginning of a legal and political campaign against militancy and the right to strike.
Briefly the facts of the case are these. Rookes was a draughtsman working for BOAC at London Airport, where his union, DATA (then the AESD), had an informal closed shop agreement. He left the union in 1955 after disagreements with the branch secretary. The local officials of the union were determined to maintain the closed shop; they threatened to call a strike unless Rookes was sacked, even though there was a no-strike agreement between BOAC and DATA. Rookes was sacked, and then sued the officials for damages, finally winning his case in the House of Lords.
Until now trade unionists had assumed that the Trade Disputes Act of 1906 protected them from actions arising out of the normal incidents of industrial conflict. This decision establishes that where a threat to strike amounts to a breach of the contract of employment (i.e. the contract between each individual worker and his employer), any ‘injured’ person can bring an action for damages against the leaders of the strike. ‘Injured’ persons could include a wide range of people: not only a blackleg who loses his job, but also a worker not directly involved in the strike who loses his job because of it, or even a shopkeeper who loses business because of it. The implications go even further than this: traditional weapons such as the ‘blacking’ of goods are equally illegal, since refusing to work on the job provided by the employer is a breach of contract. The judges’ decision was based on a very dubious legal technicality. It is perfectly obvious that the decision was political, a deliberate twisting of the spirit of the 1906 Act to suit their lordships’ anti-union prejudices. They have not been able to touch the immunity of the unions themselves, but exposing any or all of the individual members to prosecution amounts to the same thing as curtailing the freedom of the unions. If the precedent is followed up (and the case pending against the bargemen’s union seems to indicate that it will be), this legal chicanery will represent a serious threat to union finances, or, if a union executive decided not to back up its lower officials or troublesome shop stewards, a threat to the finances and freedom of militant rank-and-file leaders. The threat is not only financial: an employer could get a court injunction against an illegal strike, and if a steward were to ignore the court order he would find himself committed to prison for contempt of court.
These dangers should not be exaggerated. There is unlikely to be an immediate rush of prosecutions, since it will take time for the implications of the case to be widely known and understood. Even more, employers are intelligent enough, on the whole, to realise that such action is as likely to strengthen the workers’ hostility as it is to weaken it. The Economist (possibly more perceptive than most businessmen) called the decision an anomaly in present-day society; such obvious attacks on trade unions are likely to provoke violent responses if carried very far. It called for legislation to end the present state of uncertainty. There lies the real danger. In The Economist’s opinion new protective legislation would involve quid pro quo from the unions. What kind of concessions might be demanded? Some kind of limitation on the right to strike seems most likely, possibly a compulsory cooling-off period, or legislation to make a legal distinction between official and unofficial strikes. Another possibility is the outside supervision of trade union elections, a very dangerous prospect for unions if enforced by the government.
It is more than likely that the TUC leadership will do a deal with the next government along these lines. With both parties and the TUC committed to a policy of wage restraint, it must be one of their first priorities to prevent local wage demands. This necessitates the weakening of such potential sources of opposition as shop stewards’ committees. Legal sanctions against unofficial strikes would be one way of doing this; by repressing opposition, they would strengthen the hands of the union bureaucracy.
These are the real dangers of Rookes v. Barnard. In itself, it is a directly political move against militant trade unionists by the back door of legal technicality. Potentially, it could be the excuse for a full-scale attack on shop stewards and independent local leaders. To counter this, workers must demand new legislation so that all strikes, official and unofficial, are removed from the jurisdiction of the courts and judges.
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