Statement of Lord Shaw of Dunfermline in Amalgamated Society of Railway Servants v. Osborne, [1910] AC 87

 
 

HOUSE OF LORDS:  HL

Earl of Halsbury, Lord Macnaghten, Lord James of Hereford, Lord Atkinson and Lord Shaw of Dunfermline.

1909 Dec. 21

Trade Union–Definition–Objects of Union–Rules–Parliamentary Representation–Ultra vires–Alteration of Rules–Public Policy–Trade Union Act, 1871 (34 & 35 Vict. c. 31), s. 4, sub–s. 3 (a); ss. 13, 23–Trade Union Act Amendment Act, 1876 (39 & 40 Vict. c. 22), s. 16.

EXCERPT

LORD SHAW OF DUNFERMLINE.

My Lords, I agree with the narrative which appears in the judgments of your Lordships who have preceded me as to the statutes and the rules of the appellant society which bear upon the points open for decision in this case, and as to the relations and actings of the society and the respondent. I think it unnecessary to make any restatement on those subjects.

The respondent became a member of the appellant society sixteen years ago. Its rules were amended from time to time. During those years he had on the one hand made his contributions, and on the other hand was entitled to the benefits provided by the union. His rights and contributions, however, were liable to forfeiture if he should fail in making payment of such contributions or levies as were duly and regularly imposed. It is conceded that the object for which such contributions or levies are imposed must be (1.) within the terms of the contract, that is to say, within the scope, express or implied, of the rules and objects of the union, and (2.) within the law, that is to say, for purposes which are not in themselves illegal, unconstitutional, or contrary to public policy.

These propositions are not confined to trade unions, benefit societies, or the like, but would similarly extend to unions or federations of employers, and indeed, in principle, to all bodies or companies acting in terms and for objects set forth in a voluntary code or in a statutory enactment. This is, of course, subject to the express or implied powers of development and adaptation deducible from the code. What the latter are is a question in each individual case. In the present case it has been argued to us with great force that the union, one of whose objects, for instance, is “to improve the condition and protect the interests of its members.” &c.. must have (since the action *107 of Parliament may have the greatest influence in achieving those objects) an implied power to include the payment of members of Parliament within the scope of its powers of expenditure and levy, fortified as those powers are by the sanction of forfeiture of rights.

My doubt has reference to the scope of and the point selected for decision in this case, and it arises in this way. There were two arguments presented. (1.) The expenditure of the society’s members’ contributions in paying members of Parliament, whether the payments be part of an illegal or unconstitutional compact or not, is not in fact authorized by the terms of association. (2.) The payment in respect of which the contributions are enforced, whether such payment be authorized by the terms of the association or not, is part of a compact which in its nature is illegal or unconstitutional.

Under the first argument, if the contravention of the terms of association be affirmed, the constitutional question is superseded. Under the second argument, if essential illegality be affirmed the consideration of the terms of association is unnecessary.

My Lords, in the Court of Appeal the learned Master of the Rolls decided only the first and the learned Lords Justices Fletcher Moulton and Farwell decided both of those questions. I should have been very glad if your Lordships had also seen your way to adopt the latter course. But I quite agree that, strictly considered, the one question saves the other. As so often happens with propositions so related, the selection between them is not governed by any canon of logic, but is optional.

Your Lordships’ choice has fallen on the point as to the rules and objects of the society, which I gather that you hold did not embrace the payment of members of Parliament. My Lords, I cannot say that I am entirely clear in my own mind upon that topic. I do not dissent, but I do not decide. Long before the statutes of 1871 and 1876 were enacted trade unions were things in being, the general features of which were familiar to the public mind. They were associations of men bound together by common interests for common ends. Statute did not set them up, and, speaking for myself, I have some hesitation in so construing language of statutory recognition as a definition imposing *108 such hard and fast restrictive limits as would cramp the development and energies and destroy the natural movements of the living organism. It is in that region that my doubts lie. I fully recognize that the introduction of matter either foreign to or subversive of the society’s objects is not permissible; but I am not clear that the payment of members of Parliament by associations whose objects embrace the regulation of hours and conditions of labour and of the relations of the employers and workmen is such foreign or subversive matter; and, speaking for myself, I do not think that the problem is solved by designating the new matter political and holding that for that reason it is differentiated from the old.

It is in these circumstances, my Lords, that I find myself compelled to consider this appeal upon the other ground taken, involving an examination of the conditions which accompany the payment under the constitution of the Labour party, namely, the ground that the contributions are to be devoted to the payment of members of Parliament, who accept the same under obligations inconsistent with our parliamentary constitution and contrary to public policy. As, however, my Lords, I stand alone in this course, and as accordingly my view would not be considered as entering into the ratio of the judgment of your Lordships’ House as a whole, I shall content myself with a brief statement. This is the more justified on account of the fulness and learning and power with which the point has been treated by Fletcher Moulton L.J. and Farwell L.J. in the Court of Appeal.

I do not accordingly think it necessary to deal with the whole chain of authorities cited in the able and instructive argument of Mr. Spencer Bower; but I may be allowed to put on record what I conceive to be the substance of the case submitted upon the constitutional point. And I do so for the further reason that I incline to the opinion that that portion of the case is of general and permanent, while the other point now decided may, for reasons which need not be entered upon, be of particular and relatively transient importance.

On October 1, 1906, the annual general meeting of the appellant society adopted a “partial alteration of rules” as *109 follows: To rule xiii., section 4, clause 2, paragraph (a), add “all candidates shall sign and accept the conditions of the Labour party and be subject to their ‘whip’.” “New clause 7. The executive committee shall make suitable provision for the registration of a constituency represented by a member or members who may be candidates responsible to and paid by this society.” Stripped of extraneous matter, it is the competency and legality of these additions which are the questions at issue in this suit.

“The conditions of the Labour party” are to be found (along with its composition) in the document entitled “Constitution of the Labour Party (as revised under the authority of the London Conference, 1906).” The body is a federation of trade unions, trade councils, Socialist societies, and local labour associations, who may become affiliated on application. Cooperative societies are also eligible. Its first object is “to organize and maintain a parliamentary Labour party with its own whips and policy.” That policy is presumably formulated and controlled by the annual conference of delegates. It should here be explained that the Labour party appears to be the lineal successor of the Labour Representation Committee, whose constitution, as revised in January, 1905, is also printed. The constitution of the Labour party differs in some respects from that of the Labour Representation Committee, and the difference is especially notable in regard to the delegates and the annual conference. By the constitution of the Labour party, trade unions and Socialist societies pay 15s. per annum for every 1000 members, and receive one voting card for each 1000 or fraction thereof paid for. On the other hand, trade councils and local labour associations pay 1l. 10s. per annum, irrespective of membership, and are entitled to send one delegate to the annual conference. “But they may send one additional delegate for every additional 10s. paid as affiliation fee,” and they are entitled to receive one voting card, not for each 1000 members, but for each delegate they are entitled to send. How this works in practice is not stated, but it appears to be possible that the annual conference, which constitutes the ultimate governing body, may be composed according to money contributions by *110 trade councils and local labour associations in such a way as to swamp the larger component organizations, including the Amalgamated Society of Railway Servants, whose representation is confined to one voting card per 1000 members. The case, therefore, is not simply that of contributions for payment of members of Parliament to be selected and supported by the appellant society itself, but one in which, while the duty of support is laid on the society, the securing of the election of the member and the parliamentary policy which he is bound to pursue is controlled by another body, a federation of societies, to whom the appellant society has consented to delegate these important functions, in which federation the opinions of the appellant society may be merged or submerged, as the case may be. While a delegation of this kind is undoubtedly of a most serious character, no separate point on that subject was taken in debate, and for myself I decide the case apart from it.

An executive of the Labour party is appointed, among whose duties is to “issue a list of its candidates” and recommend them for the electors’ support, and to report to the affiliated organization “any Labour member, candidate, or chief official, who opposes a candidate of the party or acts contrary to the spirit of this constitution.” As to candidates and members of Parliament themselves, the constitution is in these terms:

1. “Candidates and members must accept this constitution; agree to abide by the decisions of the parliamentary party in carrying out the aims of this constitution; appear before their constituencies under the title of Labour candidates only; abstain strictly from identifying themselves with or promoting the interests of any party not eligible for affiliation; and they must not oppose any candidate recognized by the executive committee of the party.”

The position of a member of Parliament supported by the contributions of the society is accordingly this. As stated, (1.) he is by the society’s rules “responsible to” as well as paid by the society; (2.) he must have as a candidate signed and accepted the conditions of the Labour party; (3.) while that party has its own policy he must accept its constitution, and “agree to *111 abide” by the decisions of the parliamentary party in carrying out the aims of the constitution. Under these aims the first object of the constitution must be included, namely, maintaining the Parliamentary Labour party’s own policy. Unless a member becomes bound to the society and to the Labour party by these conditions, and shapes his parliamentary action in conformity therewith, and with the decisions of the parliamentary party, he has broken his bargain. Take the testing instance: should his view as to right and wrong on a public issue as to the true line of service to the realm, as to the real interests of the constituency which has elected him, or even of the society which pays him, differ from the decision of the parliamentary party and the maintenance by it of its policy, he has come under a contract to place his vote and action into subjection not to his own convictions, but to their decisions. My Lords, I do not think that such a subjection is compatible either with the spirit of our parliamentary constitution or with that independence and freedom which have hitherto been held to lie at the basis of representative government in the United Kingdom.

It is no doubt true that a member, although party to such a contract of subjection, would in point of law enter Parliament a free man, because the law would treat as non-enforceable and void the contract which purported to bind him. And it is no doubt true that–parties remaining outside of and making no appeal to the law–this subjection may arise in practice through the operation upon certain natures of various motives, including notably those of sycophancy or fear. But when the law is appealed to to lend its authority to the recognition and enforcement of a contract to procure subjection of the character described, with the concurrents of money payments and the sanctions of fines or forfeitures, the law will decline such recognition or enforcement because the contract appealed to is contrary to sound public policy.

I should be sorry to think that these considerations are not quite elementary. And they apply with equal force not to labour organizations alone, which operate by administering–under, it may be, careful supervision–the subscriptions of its members, but with even greater force to individual men, or *112 organizations or trusts of men using capital funds to procure the subjection of members of Parliament to their commands. In this latter case, indeed, adhesion to the principle is of a value all the greater because its violation might be conducted in secret. It needs little imagination to figure the peril in which parliamentary government would stand if, either by the purchase of single votes, or by subsidies for regular support, the public well-being were liable to betrayal at the command and for the advantage of particular individuals or classes.

It would be superfluous to note in detail how deeply embedded this principle is in the law of England on the subject of parliamentary government. On the subject of the predominating consideration Coke remarks (4 Inst. 14), “And it is to be observed, though one be chosen for one particular county or borough, yet when he is returned and sits in Parliament he serveth for the whole realm.”

Blackstone in the passage cited in the Court below adopts the same language, and Locke’s well-known view in his second Essay on Civil Government is stamped with the authority of the great commentator.

For my part, I look upon the whole of this doctrine as necessarily flowing from the fundamental idea that Parliament, originally conceived as a body of advisers to the King, is free–free in its election and free also in its advice. This fundamental idea of freedom has stood upon the Statute Book for many centuries. By 3 Edw. 1, c. 5 , it was enacted: “And because elections ought to be free, the King commandeth upon great forfeitures that no man by force of arms, nor by malice or menacing, shall disturb any to make free election.” Of this statute, which Coke describes as “excellently penned,” he comments: “Now that electors might make free and due elections without displeasure or fear thereof, by Act of Parliament, as a sure defence, the King commandeth the same, upon grievous forfeiture.” Another early and most cogent illustration is that of 7 Hen. 4, c. 15, whereby it was provided that knights of shires for the Parliament were to be chosen “libere et indifferenter sine prece aut precepto.”

It is no doubt true, my Lords, that the public records and the *113 Statute Book shew that the protections which were thrown around freedom were largely in the shape of securing the safety of electors and constituencies in the exercise, without interruption, constraint, or corruption, of the franchises they enjoyed. But all this would have been a mockery if, after purity and freedom had been enjoined amongst electors and constituencies, the representative so elected was not himself to be in the possession of his freedom in vote, advice, and action – not to be free, but to be bound, bound under a contract, to submit these, for salary and at peril of loss, to the judgment of others. Locke clearly discerned the interrelation of these two things. The latter, as well as the former, is ranked among those breaches of trust which would amount to the very dissolution of government. The former is dealt with in the phrases as to the action of the magistrate, “if he employs the force, treasure, and offices of the society to corrupt the representatives or openly to pre-engage the electors, and prescribe what manner of persons shall be chosen. For thus to regulate candidates and electors and new model the ways of election, what is it but to cut up the Government by the roots, and poison the very fountain of public security.” The latter is dealt with in the remainder of the same sentence as follows:

“For the people having reserved to themselves the choice of their representatives, as the fence to their properties, could do it for no other end but that they might always be freely chosen, and so chosen freely act and advise, as the necessity of the commonwealth and the public good should upon examination and mature debate be judged to require.”

These principles have been frequently subject to evasion and attack, sometimes open and sometimes secret, but they have never been overthrown; and they apply to labourists’ men, to capitalists’ men, or, as in former times, to King’s men. Whether they form one of the chief glories of the Constitution, making this island “the envy of less happier lands,” may be treated by the constitutional historian; with that I have not here to do; but in my opinion they do form part of the very body of our public law.

Granted, however, that no conditions are imposed subversive of or imperilling their freedom, it will be observed that nothing *114 that has been said attaches a taint or shadow of illegality to the payment of members of Parliament. Such payment may be a tribute to character, or a recognition of talent, coupled with a desire that these should be secured for the service of the State, or it may spring from a legitimate wish that the views, the needs, the perils of particular, and it may be large, classes of His Majesty’s subjects should be expressed in Parliament by those who speak with the authority of practical experience.

Thus far I accede to the powerful argument for the appellants. But when that argument was pushed further, and especially to the two steps now to be noted, I must decline my assent. (1.) It was said that experience shews that men of high honour have felt themselves free to accept obligations similar to those contained in the constitution of the Labour party, and that those obligations have not in practical life proved restraints upon their independence, or manacles upon their judgment. It may be that this is so, and its accord with one’s experience of such men makes the argument strong; and it may also be that in such individual cases men stand so deservedly high in the councils of the controlling party that no dissonance between their views and its views will in practice arise. All this within the voluntary sphere is powerful. But in my opinion such instances should not be allowed as an argument for legalizing the obligations of subjection to which I have referred, or for imperilling the broad constitutional guarantees of freedom. (2.) It was argued that if individual classes were not to be allowed on their own terms to make payment of members of Parliament their security from the possible dangers of such operations could only be obtained at too high a price, namely, the payment of members as of right and from the public treasury. I do not think such considerations clarify the legal solution or should weigh with a Court of law.

In brief, my opinion accordingly is: The proposed additional rule of the society that “all candidates shall sign and respect the conditions of the Labour party, and be subject to their ‘whip,”‘ the rule that candidates are to be “responsible to and paid by the society,” and, in particular, the provision in the constitution of the Labour party that “candidates and *115 members must accept this constitution, and agree to abide by the decision of the parliamentary party in carrying out the aims of this constitution,” are all fundamentally illegal, because they are in violation of that sound public policy which is essential to the working of representative government.

Parliament is summoned by the Sovereign to advise His Majesty freely. By the nature of the case it is implied that coercion, constraint, or a money payment, which is the price of voting at the bidding of others, destroys or imperils that function of freedom of advice which is fundamental in the very constitution of Parliament. Inter alia, the Labour party pledge is such a price, with its accompaniments of unconstitutional and illegal constraint or temptation.

Further, the pledge is an unconstitutional and unwarrantable interference with the rights of the constituencies of the United Kingdom. The Corrupt Practices Acts, and the proceedings of Parliament before such Acts were passed, were but machinery to make effective the fundamental rule that the electors, in the exercise of their franchise, are to be free from coercion, constraint, or corrupt influence; and it is they, acting through their majority, and not any outside body having money power, that are charged with the election of a representative, and with the judgment on the question of his continuance as such.

Still further, in regard to the member of Parliament himself, he too is to be free; he is not to be the paid mandatory of any man, or organization of men, nor is he entitled to bind himself to subordinate his opinions on public questions to others, for wages, or at the peril of pecuniary loss; and any contract of this character would not be recognized by a Court of law, either for its enforcement or in respect of its breach. Accordingly, as it is put in the words of Fletcher Moulton L.J., “Any other view of the fundamental principles of our law in this respect would, to my mind, leave it open to any body of men of sufficient wealth or influence to acquire contractually the power to exercise that authority to govern the nation which the law compels individuals to surrender only to representatives, that is, to men who accept the obligations and the responsibility of the trust towards the public implied by that position.”

*116 For these reasons, my Lords, I am of opinion that the appeal should be refused.

Representation

Solicitors: Pattinson &
Brewer; C. T. Wilkinson.

Order of the Court of Appeal affirmed and appeal dismissed with costs. Lords’ Journals, December 21, 1909.

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