Letter of the Law
Ganging-up
By R. A. CLINE
ANYONE who supposed that the film l'ttz All Right, Jack was a distortion of the facts of trade union life or the last word on the subject should read the full report of Mr. Justice Sachs's judgment in Rookes v. Barnard. This was the action brought by the courageous draughtsman employed by. BOAC at London Airport who dared to resign from his union and later sued a number of trade union officers for inducing BOAC to terminate his employment. Unfortunately the decision has been little dis- cussed, no doubt because it has been over- shadowed by the more colourful investigation of the ETU elections. In any case the questions of law which the claim raised are not easy to follow.
It is tempting to suppose that the Queen's Bench Division provides effective protection against the sort of ganging-up that was disclosed in the Rookes case. But a closer look at the facts shows that this is simply not true; in the majority of cases the non-conformists can be squeezed out of their jobs with impunity for refusing to comply with the closed shop prin- ciple. The salient feature in the BOAC case was that there was an agreement in force between the employers' and employees' sides of the draughtsmen's industry which was binding on all the members of the draughtsmen's union and became a term of their contract of employment. By this agreement the employers and the em- ployees undertook that no lock-out or strike should take place (which has not prevented all BOAC aircraft being grounded by a strike); and in addition there was an arrangement, described in the judgment as an undertaking, between both sides of the industry. It was not binding, but in effect it meant that once a declaration had been made by a trade union that a particular section of London Airport was manned by employees who were 100 per cent. members of the union, BOAC could not recruit non-members to that section. As a quid pro quo, a member of a trade union was not obliged to remain a member, he was free to resign and he would not thereby lose his employment. In Mr. Rookes's design office there was 100 per cent membership; then, in November, 1955, he chose to exercise this freedom, and resigned.
The sequel fully merits Mr. Justice Sachs's description: 'unattractive.' Suffice it to say that the defendants brought about Mr. Rookes's dismissal by threatening to strike in breach of their agreement and in disregard of their under- standing. And this was their undoing. The law sanctions a great deal of ganging-up by trade unionists so long as they do so in furtherance of a trade dispute. How far it will allow them to go is still obscure. Section 3 of the Trade Dis- putes Act 1906 offers protection in the some- what murkily worded phrase: 'An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it is an interference with the employment of some other person.' If the BOAC men had only 'interfered with' Rookes's employment (whatever that may mean), they could get away scot-free. But they did not only interfere, if they interfered at all. They threat- ened to use unlawful means to achieve their purpose of getting Rookes out of his job; and the court took the view that contract-breaking is unlawful, and the 1906 Act does not extend its protection to unlawful behaviour.
A lot of questions remain unresolved by this decision. But one thing is quite clear. Agree- ments not to strike are rare in industry, and accordingly the decision in Rookes's case must be very limited in its application. No one should jump to the conclusion that the law courts can provide the answer to wildcat strikes. Besides, Rookeses are few and far between.
* A sentence of life imprisonment is usually carried out by imprisoning the convicted man for any period other than the duration of his life. Whether he does or does not obtain his freedom before he dies is a matter which falls wholly within the discretion of the Secretary of State. The only justification for describing a man as under a life sentence is that through' out the whole of his life his freedom, once re- gained, is only conditional. He is under licence. Mr. Edward Gardner, QC, and the group for whom he speaks are not satisfied with this state of affairs. They say that the trial judge should be empowered to award long sentences on the basis of facts proved at the trial; that it is for the judiciary, not the executive, to decide the length of a man's sentence and so protect society; and that under this system the length of the sentence is finite and the convicted know where they stand. But is the judge at a murder trial so well placed? He sees the accused under the most exacting conditions; the most innocent of men can convey the worst impression in a court of law when on trial for a parking offence. The medical evidence at the trial as to the accused.' mental state at the time of the murder may be wholly irrelevant after a few years' detention• The trial itself may have an effect on his mil of which the judge may be excusably unawal and which may only become evident many year' later. There is less danger to society in leaving it to the executive, which should be continuousb in touch with the accused, to determine when he should be freed.
It looks as if the judiciary may be inclined to take the same view. In the recent case 01 R. v. Morris, for example, a man killed his wife while suffering from depression superimposed on a chronic anxiety state which had sub' stantially impaired his mental responsibility. Vic jury found him guilty of manslaughter. Thc evidence showed that he needed mental treat' ment, but if he was to be sent to hospital 11 should be a 'secure' hospital, e.g. Moss Side 0r Broadmoor, where special steps are taken to see that the inmate could not get out and could not be at large. Unfortunately there were vacancies in the secure type of hospital. Accord- ingly the judge imposed a life sentence rather than a hospital order, in order that the llorue Office could in their discretion remove the Mil to a mental hospital that was secure, as anti when they thought fit. Up to 1960 thirty-five oat of eighty-five cases of diminished responsibilit, have been sentenced to life imprisonment, SO l looks as if the courts are prepared to leave it to the Home Office to deal with these serious case But to those who feel that, the executive t longer being answerable to Parliament except in form, the judiciary should retain its conic o where it can, there is a compromise path betWeebe Mr. Gardner and his opponents. Let judiciary be associated with the executive in t execution of its sentences. A wife may repeatedly, call upon the court to vary its order on matt\ such as maintenance or custody. A driver apply to a court seeking a review of his Lille qualification from driving and asking that ti, period of disqualification be shortened. Is t11‘‘, any reason why the courts should not simila11 be empowered to hear medical and other dente as to the effect of imprisonment or ntch,n, treatment on a man sentenced to life imp' ment?
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