4

ceedings for directly enforcing or for recovering damages for the breach of any agreement made between one trade-union and another; or any bond to secure the performance of any such agreements. Since by definition in the act a "trade-union" includes an association of employers formed to deal with terms of employment, the effect of this is to make unenforceable in the courts all agreements between labor unions and associations of employers.

The result of this legislation, and of the Conspiracy and Protection of Property Act of 1875 and the Trade Disputes Act of 1906 with their limitations of the right to sue a trade-union for acts done in contemplation or furtherance of a trade dispute (see sec. II, infra) has been that the agreements between labor unions and employers' associations which dominate employer-worker relations in Great Britain rest, as a practical matter, on moral force rather than on legal sanctions.5

6

Political Objects.-In placing the legal status of trade-unions on a reasonably secure footing, as described above, the Trade Union Act of 1871 was a landmark in the development of the law. Its definition of the objectives which would convert an otherwise presumably illegal association into a lawful "trade-union" (see footnote 3) was, however, rather limited, and the courts subsequently held that a trade-union could not go beyond these objectives and could not, for example, spend money for political purposes.

8

To remove this limitation, the Trade Union Act of 1913 broadened the definition of a "trade-union" by providing that, so long as its "principal objectives" were statutory, it could apply its funds for any lawful purpose (whether listed in the statutes or not) authorized by its constitution. And the act expressly authorizes the expenditure of trade-union funds for political objects, as defined in the act, if the furtherance of the objects has been approved by a majority of the members voting, on a ballot taken under rules approved by the registrar (whether the union is registered or not). These rules must provide that any such expenditures shall be out of a separate fund and that any member of the union who has given notice that he objects to a contribution shall not be excluded from any benefits of the union or otherwise placed under any disability. This is the so-called "contracting out" provision, which, in the Trade Disputes and Trade Unions Act of 1927 is replaced by the "contracting in" provision which exempts each member from contribution to political funds unless he has signed and filed with the trade-union a written notice of his willingness to contribute. The 1927 act (sec. 4 (6)) also requires unregistered trade-unions to make annual reports to the registrar with respect to their political funds, a provision supplementing the Trade Union Act, 1871, under which registered trade-unions must report with respect to all of their funds. (See Registered Trade Unions, infra.)

Government and Municipal Employees and Essential Services.The Police Act of 1919 10 establishes an organization called the Police Federation, with local and central representative bodies, to enable members of the police forces in England, Scotland, and Wales to take up with the authorities all questions except the displacement and promotion of particular individuals. This Federation must be entirely independent of and unassociated with any body or person out

side the police service, and membership in a trade-union is prohibited to members of the police forces. It is provided, however, that where a man was a member of a trade-union before becoming a constable he may, with the consent of the chief officer of police, continue to be a member of that union.

By the act of 1927 "established civil servants" 11 may belong to a trade-union only if it is confined to persons employed by or under the Crown; is in all respects independent of and not affiliated to any outside trade-union; has no political objectives; and is not associated directly or indirectly with any political party or organization. These provisions do not apply to any established civil servant who, prior to the passage of the act, had been a member for more than 6 months of a trade-union under whose rules there had begun to accrue to him any right of future benefit payments. Nor do the provisions apply to any person who in addition to being an established civil servant, apart from his service as such, is also engaged in some other employment or occupation.

The act of 1927 further prohibits local or other public authorities from making it a condition of employment or continuance in employment that any employee shall be a member of a trade-union; and from discriminating against any employee for being or for not being a member of a trade-union.

The Conspiracy and Protection of Property Act, 1875 12 (as amended by the Electricity (Supply) Act, 1919 13), provides in substance that employees engaged in furnishing municipalities with gas, water, or electricity may be fined or imprisoned if they "wilfully and maliciously" break their contracts of service, knowing or having reasonable cause to believe that the probable consequences will be to deprive the inhabitants "wholly or to great extent" of their supply of gas, water, or electricity.14

The act of 1875 also provides penalties for any breach of contract of employment committed wilfully and maliciously with knowledge that the probable consequences will be to endanger human life or cause serious bodily injury, or to expose property to destruction or serious injury. And the act of 1927 provides that if an employee of any local or other public authority "wilfully breaks a contract of service with that authority, knowing or having reasonable cause to believe that the probable consequence of his so doing, either alone or in combination with others, will be to cause injury or danger or grave inconvenience to the community," he may summarily be fined or imprisoned.

The Emergency Powers Act of 1920 15 gives the Government power to take all measures necessary for securing the essentials of life to the community; but the act excludes any form of compulsory military service and provides that no emergency regulation under the act may make it an offense to take part in a strike or peacefully to persuade any persons to take part in a strike.

Certification. Because of the special status created for "tradeunions" as such, by the act of 1871 and subsequent acts, including particularly the act of 1906 exempting trade-unions from suits for tortious acts as described hereinafter, it became important to be able to prove that a particular combination was a trade-union within the

meaning of those acts. Registration under the act of 1871 was sufficient to prove that fact. But registration was a voluntary matter, and the status created by the acts was enjoyed by unregistered as well as by registered trade-unions. For the purpose, therefore, of making convenient legal proof that a particular combination is a trade-union, without requiring it to register under the act of 1871, the Trade Union Act of 1913 provides that an unregistered trade-union may apply to the registrar for a certificate that it is a trade-union within the meaning of that act. The registrar, if satisfied that the principal objects of the union are statutory objects and that it is actually carried on for those objects, is required to grant such a certificate. He may subsequently withdraw the certificate if he finds that the union is no longer a trade-union within the statutory definition. A certificate, so long as it is in force, is conclusive evidence for all purposes that the certified union is a trade-union within the meaning of the acts.

Registered Trade Unions.-The act of 1871, which makes provision for the voluntary registration of trade-unions, prohibits their registration under the Friendly Societies Acts of 1855 and 1858, under the Industrial and Providence Societies Acts of 1867, or under the Companies Acts of 1862 and 1867. The effect of this last clause (which was amended by the Companies Act, 1929,16 so as to substitute that act for the earlier Companies Acts) is to prohibit trade-unions from incorporating. Registering under the act of 1871 confers certain benefits and imposes certain obligations, which may be summarized as follows:

(a) Benefits of Registration.-A trade-union, by registering, becomes a statutory association whose right to hold property and to sue and be sued vests in a body of trustees with continuing existence. The act contains special provisions with regard to the facilitation of realestate transactions; the vesting of the union property in the trustees; the bringing of actions by and against the trustees "touching or concerning any property, right, or claim to property of the trade-union"; the limitation of the responsibility of trustees for the funds of the trade-union; the rendering of accounts by the treasurer and other officers to the trustees or to the members of the trade-union as required, and the recovery of securities and effects, books, papers, and other property of the union by the trustees from such officers; and the punishment in summary proceedings of officers or members for fraudulently obtaining or employing the monies, securities, books, papers, and so forth, of the union, upon a complaint made by any person on behalf of the union.

It is not to be understood from what has just been said as to registered trade-unions that unregistered trade-unions cannot hold property or that they do not have access to the courts with respect to their rights and property. They are, however, merely voluntary associations of individuals, and may bring suit only by joining all members of the union as parties, which is normally impractical, or by a “representative" action in which officers or other persons representative of the union sue on behalf of the members. To maintain a representative action, special permission must be granted by the court, and the officers or other representatives must show that they have the same

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interest in the cause as the members. Thus for purposes of suit it is more convenient for a union to be registered.

Other benefits accruing to registered unions are: (1) A registered trade-union may carry on certain kinds of assurance business without being subject to the restrictions imposed on assurance companies.17 A similar privilege may be obtained by unregistered unions only if they were established prior to July 1, 1890. (2) A registered trade-union may contribute to and take part in the government of a medical society without becoming a branch of such society.18 (3) A member of a registered trade-union who is over 16 years old and entitled to death benefits, may nominate a person to receive any monies not exceeding £100, payable upon his death.19 Thus the members of registered unions are able to provide for the disposal, at their death, of small sums of money without the expense of a will or administration. (4) Under the Income Tax Act (1918) a registered trade-union has a limited exemption from income tax with respect to its benefit funds.

(b) Obligations Incurred by Registration. Every registered tradeunion must file with the registrar a copy of its rules, with a list of the titles and names of its officers. These rules must contain: The name of the trade-union, its place of meeting, its objects, and the purposes for which its funds may be spent; its provisions for benefit payments, fines, and forfeitures; the manner of making and changing its rules; a provision for the appointment and removal of a general committee of management, of a trustee or trustees, treasurer, and other officers; a provision for the investment of funds, and for an annual or periodical audit of accounts; and a provision for the inspection of the books and membership lists "by every person having an interest in the funds of the trade-union." A copy of the rules must be delivered to every person on demand on payment of a sum not exceeding one shilling, and the circulation of false copies of the rules is made a misdemeanor. And every registered union must have a registered office subject to change on notice to the registrar, and must make an annual report to the registrar giving a general statement of its receipts, funds, and effects, and its expenditures classified according to its several objects. Every member is entitled, on request, to a free copy of the statement.

(II) ACTS DONE IN CONTEMPLATION OR FURTHERANCE OF A TRADE DISPUTE. STRIKES AND LOCK-OUTS, PICKETING, INTIMIDATION, AND COERCION

Although, as has been stated, the Trade Union Act of 1871 provided that the purposes of trade-unions should not be deemed unlawful "by reason merely that they are in restraint of trade," the acts of trade-unions were still subject to legal restraints on certain common law grounds—and particularly on the ground of criminal and civil conspiracy.

The Conspiracy and Protection of Property Act of 1875 20 expressly exempts from criminal indictment as a conspiracy agreements or combinations between two or more persons, to do any act in contemplation or furtherance of a trade dispute between employers and workmen [or workmen and workmen] 21 if such an act committed by one person would not be punishable as a crime. This provision is quali

fied in that (a) the act does not exempt from punishment persons guilty of a conspiracy "for which a punishment is awarded by any act of Parliament," and (b) nothing in the act shall affect the law relating to riot, unlawful assembly, breach of the peace or sedition, or any offense against the State or the Sovereign.

While the act of 1875 effectively removed the taint of criminal conspiracy from trade-union activity in industrial disputes, it did not prevent a person injured by such conspiracy from seeking damages in a civil action in tort. Suits of that sort were brought and the law of civil conspiracy received a considerable development in the courts, culminating in the Taff-Vale case.22 In that case the House of Lords held a registered trade-union liable for damages resulting from the participation of its members in a strike, and intimated that unregistered trade-unions could be similarly made liable through representative actions. This decision led to the passage of the Trade Disputes Act of 1906.23 That act extended the exemption of the act of 1875 to embrace civil conspiracies. It provides that an act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation of the furtherance of a trade dispute, "not be actionable unless the act, if done without any such agreement or combination, would be actionable." Finally, the act (of 1906) expressly exempts trade-unions (whether of workmen or masters) from all suits in respect of any tortious act alleged to have been committed by or on behalf of the trade-union. This exemption is absolute and unqualified.24 A further subsection, however, provides in substance that the exemption shall not affect the liability of the trustees of a trade-union to be sued with respect to acts touching or concerning the property of the tradeunion provided the act is not done in contemplation or furtherance of a trade dispute.25 Prior to the passage of this act there were a few reported cases of injunctions against threatened tortious acts by unions, but since its passage there appear to be no reported decisions of any injunctions and it has been held that under the act such injunctions will not lie.26

This immunity of trade-unions from legal responsibility for acts done in contemplation or furtherance of a trade dispute, and for tortious acts, remains in full effect today except in the case of illegal strikes (or lock-outs) 27 as defined by the act of 1927.

In the case of an illegal strike as defined by that act a tradeunion is deprived of all these immunities, and the act contains other provisions intended to prevent the calling of such a strike, and to protect workers from disciplinary action on the part of a labor union if they refuse to take part in an illegal strike. Thus the act provides that a person who declares, instigates, or incites others to take part in, or otherwise acts in furtherance of, an illegal strike shall be liable on summary conviction to fine and imprisonment. (It is provided, however, that no person shall be thus liable by reason only of his having ceased work, or refusing to continue to work or to accept employment; and that, subject to certain exceptions, the proceedings against him shall have the consent of the Attorney General.) The act further provides that no person, by reason only of his refusal to take part in an illegal strike, shall be subject to expulsion from any trade-union, or to any other disciplinary action; and with respect to any action for enforcing the rights of a person so dis