7 FEBRUARY 1964, Page 15

Letter Qf the Law

Fortress Breached


UNT IL the recent decision in the House of Lords the trade unions have had it all their own way. They have become a fortress made almost impregnable by legislation and judicial precedents. The Boulting Brothers were obliged to join a union although they were employers. A worker, because he had a few convictions, has just been adjudged disqualified from membership of a union and consequently unable to practise his chosen trade. But in Rookes v. Barnard a gap was found. The officials of a union threatened to call a strike unless BOAC terminated the employ- ment of Rookes. He had given up his member- ship and the union were determined to maintain 100 per cent membership in BOAC. And so BOAC yielded to the pressure and Rookes was duly discharged.

But the unions and BOAC had earlier agreed that their members would never strike for such purposes and this no-strike clause was a term of the engagement of each employee. So the union officers had in fact threatened to break the agree- ment. The Law Lords held that such a threat re- sulting in damage to Rookes gave him the right to recover damages against the threateners.

The decision has been subjected to some wholly unjustified criticism. Of course it is anomalous that if a union official breaks a con- tract in such circumstances he is protected by the Trade Disputes Act but if he threatens to do so, , he is liable to a lawsuit. But that is because the legislation itself is anomalous and has created an extraordinary legal creature--one that can in- voke the law's help against its members but is itself for the most part above the law.

What is surprising is the horrified reaction to this decision expressed in some quarters. For in- stance, K. W. Wedderburn, writing in New

Society, arrives at the conclusion that the courts ought to keep out of the arena of such trade dis- putes. On the contrary, if industrial relations are to be regulated in an orderly fashion and the weak protected against the strong, this is just the job for the judiciary. It is worth pointing out that the intended behaviour of the unions would have been a breach of an agreement freely arrived at. What sanction can the aggrieved invoke when such agreements are torn up, if they cannot go to law? Are they simply to trust each other? Or is the final sanction to be the right to strike or to lock-out—in breach of the agreement?

A curious development in the law of divorce: Parliament gave the judges the power to grant divorce decrees notwithstanding that there had been collusion between the parties. It is a matter for their discretion. The statute gave the judges no guidance whatsoever as to how their discretion was to be exercised. At first what happened was this: husband and wife would arrive at the trial, apparently ready for a bitter contest. Then the court would be told by counsel that he and his opponent had put their heads together and one of them was authorised by his client to withdraw his or her opposition. The court would then hear the evidence and grant a decree, 'in the exercise of its discretion, because it was in the interests of justice.'

Now this could have been the first step on the slippery slope to divorce by consent; much de- pended on the conduct of the legal advisers. But the President of the Divorce Division has recently stopped up the potential leak. He has held that collusion can only be overlooked in this way if the successful-because-unopposed spouse could reasonably be expected to have succeeded even if opposed. This will set a difficult task for the court: the demure innocent wife who looks the picture of truth when answering her own counsel can be transformed by cross-examination into an aggressive liar. It wil require the power almost of divination for a judge to be able to decide whether an undefended divorce suit would have had the same result if hotly contested.

This is yet another example of Parliament find- ing the whole subject of divorce too hot to handle and therefore giving the judges carte blanche to work it out for themselves. In a community where no two persons have the same views on divorce the problem presented to the courts is intolerable and probably insoluble—one which, as our law on the subject of cruelty has amply demonstrated, lawyers are not specially fitted to tackle.

Lord Simon's legal decisions are a little out of fashion at the moment. During the war, when it was almost a duty to be executive-minded, he lent his great authority to the proposition that in litigation the Crown could assert a claim of privilege to a whole class of documents if the Minister concerned declared that their disclosure was not in the public interest. But times have changed and there have been some savage things said recently by the judges when the Depart- ments have produced certificates from Ministers which meant that no one could look at the docu- ments. In one case a prisoner who had been terribly beaten up was unable to sue because a Home Office document vital to his case was con- cealed from the court. And last week Lord Den- ning in effect ordered a Department to think again before blindfolding him. What rankles is that not even the judge is permitted to inspect the documents to see whether there is any justi- fication for the concealment. A thoroughly bad rule.