1. The 1906 Act itself was repealed by the Industrial Relations Act 1971 and although its concepts have been modified by the Trade Union and Labour Relations Act 1974 and by the Employment Act 1980, its basic principles are likely to be considerably affected by the labour legislation of 1982.

2. Criminal Law Amendment Act 1871; Conspiracy and Protection of property Act 1875.

3. During this period the criminal sanctions of s. 7 of the Conspiracy and Protection of Property Act 1875 relating to picketing were also used. See especially Gibson v Lawson [1891] 2 QB 545; Smith v Thomasson (1890) 62 LT 68; Charnock v Court [1899] 2 Ch 35. However in Ward Lock v Operative Printers Assistants Society (1906) 22 TLR 327 the Court of Appeal led by Vaughan Williams LJ so interpreted the section as to render it virtually a dead letter and although it is still in force today, it is not in practice used. There was a case of conspiracy to break the section in 1974, R v Jones [1974] ICR 310, and an unreported prosecution in Scotland in 1981. Between 1900 and 1905 none of the Bills presented to Parliament proposed any change in this section.

4. [1896] 1 Ch 811; [1899] I Ch 255.

5. Hubbard v Pitt [1975] ICR 77.

6. Led by Lord Lindley whose comments in the earlier case in 1896 must have made unions equally worried, e.g. ‘You cannot make a strike effective without doing more than is lawful’ (at 820). See also the discussion in the same case of the merits of union power, made just after the rise of ‘New Unionism’.

7. (1853) 2 E & B 216, 118 ER 749.

8. See per Brett LJ in Bowen v Hall (1881) 6 QBD 333, and per Bowen LJ in Mogul Steamships v McGregor Gow (1889) 23 QBD 598 at 617, CA.

9. See for example the dissenting judgement of Lord Coleridge CJ in Bowen v Hall (1880) 6 QBD 333.

10. For example in Temperton v Russell (No. 2) [1893] 1 QB 715 at 728, Lord Esher MR refused to limit the tort to existing contracts, and said it would also cover interference with future contracts. See also Giblan v National Amalgamaled Labourers Union [1903] 2 QB 600 at 619.

11. Ex parte Island Records [1979] Ch 122; Hadmor Productions u Hamilton [1981] 2 All ER 724, CA.

12. Read v Friendly Society of Operative Stonemasons [1902] 2 KB 88.

13. Temperton v Russell (No. 2) [1893] 1 QB 715. This was an early example of secondary action.

14. Read v Friendly Society of Operative Stonemasons [1902] 2 KB 88; Glamorgan Coal Go v South Wales Miners Federation [1905] AC 239.

15. Pollock, in Appendix 2 to the fifth report of the Royal Commission on Labour, 1894 C7421, accepted that it was actionable to use unlawful means to persuade a workman not to enter into a contract of employment. This would now be regarded as an example of intimidation, but in 1894 no distinction would have been made between that and the wider tort of unlawful means.

16. Ibid.

17. [1898] AC 1.

18. This included reviving the obsolete machinery of summoning the judges to advise the House. See Paterson, ‘Judges a Political Elite’ (1974) I Brit J Law and Society 118; Heuston, Lives of the Lord Chancellors (1964) p. 119.

19. [1901] AC 495.

30. Mogul Steamship Co v McGregor Gow [1892] AC 25.

21. [1901] AC 495. See especially per Lord Brampton at p. 528. But see Bulcock v St. Anne's Master Builders Federation (1902) 19 TLR 27 for a more liberal view. The issue was finally resolved in Crofter Hand Woven Ham's Tweed Co v Veitch [1942] AC 435.

22. Appendix 2 to the fifth report of the Royal Commission on Labour 1894, C.7421.

23. Taff Vale Rly Co v ASRS [1901] AC 426. For the background see Bagwell. The Railwaymen (1963) Ch 8. Ammon Beasley, the general manager of the Taff Vale Railway was constantly active in the debate on trade union law reform in the period 1900–1906.

24. (1893) 8 TLR 216 and 711. See also Trollope v London Building Trades Federation (1896) 12 TLR 373 where the point was not argued.

25. 1906, Cd. 2825.

26. General Order No. 16, rule 9.

27. [1901] 1 QB 435.

28. [1901] ACI. ‘It is rather a pity when a case like Temperton v Russell finds its way into the Reports’, per Lord MacNaghten at p. 10.

29. Per Lord MacNaghten at p. 439, “Temperton v Russell was an absurd case’.

30. Only Lords MacNaghten and Lindley mention it directly in Taff Vale.

31. Heaton's Transport v TGWU [1973] AC 15.

34. Giblan v National Amalgamated Labourers Union of GB [1903] 2 QB 600.

33. Denaby and Cadeby Main Colleries v Yorkshire Mims Association [1906] AC 384, but that case was itself distinguished in Smithies v National Association of operative Plasterers [1909] 2 KB 310.

34. See Clegg, Fox and Thompson, A History of British Trade Unions, (1964) Chaps. 8 and 9 for the best treatment of Taff Vale and its consequences for industrial relations.

35. 5 Geo 4 c.96 as amended by 7 Will 4 and 1 Vict c.67.

36. Amulree, Industrial Arbitration in GB, 1929, Chap. 7.

37. This Act was promoted by A.J. Mundella, later President of the Board of Trade, who was active in the promotion of arbitration for many years. He was also responsible for the Conciliation Act 1896.

38. 1894, C7421.

39. Amulree, Industrial Arbitration in GB 1929, p. 105. For an example see fifth report of Royal Commission on Labour 1894, Part 11, p. 276.

40. There was no advantage to he had in registering and only nineteen did so. ibid., p. 108.

41. Also established at about this time (1891) was the Fair Wages Resolution of the House of Commons, which contained an arbitration component hut was mainly directed at promoting the growth of collective bargaining.

42. Richard Bell was General Secretary of the ASRS and an individual defendant in Taff Vale. He was also MP for Derby, sitting in the Labour interest but independent of the political parties. His attitude is extremely difficult to follow for on the one hand he appears to have favoured limited immunity, but on the other he supported Sir Charles Dilke's Bill of 1902 which gave complete immunity to trade union funds and from actions of conspiracy. In 1906 he admitted that in the past he had not supported complete immunity but urged acceptance of the final version of the Bill. Hansard Parl. Debs. Vol. 154, col. 1341. The early views of some trade unionists are outlined in Clegg, Fox and Thompson, A History of British Trade Unions, (1964) p. 319.

43. Clegg, Fox and Thompson, A History of British Trade Unions, (1964) p. 323.

44. Cd. 2825. The Commission reported in 1906.

45. Hansard Parl, Debs. Vol. 124, col. 1188, (2 July 1903).

46. The Commission consisted of Lord Dunedin, Sir Godfrey Lushington, Sir William Lewis, Arthur Cohen and Sidney Webb.

47. The motions generally called for courts of compulsory arbitration to be presided over by a Lord Justice and with equal numbers of representatives of employers and workmen.

48. In 1902 the motion was put by J.A. Seddon and lost by 303.000 for, to 961.000 against. In 1903 Tillett himself put the motion and lost by 899,000 to 251,000. In 1905 the majority against was down to 92,000, but in 1906 the vote was 938,000 to 541,000 and in 1907 when the motion was put by J. Wignall the majority had increased to 1,003,000 against 343,000.

49. For biographies see R. Jenkins, Sir Charles Dilke (1958) and more especially on this subject S. Gwynn and G. Tuckwell, The Life of sir Charles Dilke (1917).

50. Richard Bell had proposed an amendment to ask the committee to immediately draft a Bill to protect union funds. It is significant that this was rejected.

51. It is interesting to note that liability for picketing was their primary concern. There is considerable dispute as to why Lyons v Wilkins was never appealed in 1899 to achieve this result. Some argue that the appeal was withdrawn upon legal advice (see Sir Charles Dilke, Hansard Parl. Debs. Vol. 108, col. 299, and Sir Robert Finlay ibid., col. 318). Others claimed that it was due to the incompetence of the solicitors involved. Roberts, The Trade union congress 1868-1921 (1958) p. 165.

52. Times, 2 September 1902. Advice was taken from Asquith, Dilke and Haldane amongst others.

53. ‘The truth is that all the moneys of the society for whatever purpose they may be collected form a common fund’, per Lord MacNaghten [1901] AC 426 at 437.

54. One trade unionist, John Hodge of the Manchester Steelsmiths even transferred all his property to his wife and urged other delegates to do the same, Times, 5 September 1901.

55. Minutes of TUC Parliamentary Committee.

56. An earlier draft Bill had been drawn up by Sidney Webb. This would have provided protection against action for conspiracy and would have affirmed the doctrine of Allen v Flood. This accorded with his view that trade unions should be corporate entities subject to the law and liable for wrongful acts (such as inducing breach of contract) but immune from actions such as conspiracy which prevented the very existence of collective bargaining. Webb, Industrial Democracy (1902).

57. Trade Union Bill 1902, Bill No. 84. Presented 4 February 1902. Withdrawn 12 March 1902. It appears that the future Lord Loreburn may have assisted in the drafting of this Bill. TUC Parliamentary Committee Report 1907, p. 64.

58. Atherly-Jones was a well known Liberal lawyer who later opposed total immunity. Other supporters included Abraham, Burt and Bell who in varying degrees represented Labour opinion.

59. Trade Dispute Bill 1902, Bill No. 141. Presented 25 March 1902. Withdrawn 12 May 1902. This Bill was presented to the Parliamentary Committee on 15 January 1902 but was rejected in favour of Browne's Bill on 4 February. However Dilke kept in regular touch with the Committee: see Minutes of 8 July 1902, 24 February 1903 and 28 October 1903.

60. But with the added point of significance later that it would have also exempted interference with future contracts.

61. Dilke's Bill was presented again in 1903, Bill No. 55 supported by Bell and Mc Kenna; again in 1904, Bill No. 91 supported by Keir Hardie, and in 1906, Bill No. 32.

62. In the meantime there had been a parliamentary debate on a motion by Mr Beaumont that legislative reform was necessary. This was only narrowly defeated. Hansard Parl. Debs. Vol. 108, col. 277 (14 May 1902).

63. A conference of the leaders of the three bodies was set up (Minutes Parliamentary Committee TUC 18 December 1902), and the joint bill agreed to by the Parliamentary Committee on 14 January 1903.

64. Trade Disputes Bill 1903, Bill No. 7 supported by Shackleton, Bell and Dilke. The Speaker detected that the short title did not cover all aspects of the Bill and the immunity clause had to be dropped for the second reading.

65. Hansard Parl. Debs. Vol. 122, col. 204, (8 May 1903).

66. Hansard Parl. Debs. Vol. 155, col. 1525, (25 April 1906).

67. Cd. 2825, 1906. The main recommendations of the majority were (i) that a strike should of itself be lawful, except for liability for breach of contract and crime (hardly any concession! (ii) persuasion to strike should not of itself be illegal, except where it amounts to procuring a breach of contract (again no benefit to a union); (iii) Allen v Flood should be confirmed; (iv) union benefit funds should be separated; (v) unions should not be liable for unauthorised acts; (vi) unions should have the power to become corporate entities so as to allow them to enter into legally enforceable collective agreements; (vii) unions should be immune from civil conspiracy.

68. Whereas the 1903 Bill was the result of agreement between the LRC and the Parliamentary Committee, by 1904 disagreements arose again and the LRC were not consulted on the Bill for 1904. Report of the Fourth Conference of the LRC 1904, p. 30. Note also that Browne was admonished by the Parliamentary Committee of the TUC for writing letters on the recommendation of Sir Robert Reid to the General Federation of Trade Unions and the Labour Representation Committee to attend a conference. Minutes 20 January 1904.

69. The motion was proposed by Ben Cooper of the Cigar Makers Mutual Association and seconded by Richard Bell. Ben Tillett opposed the motion advocating that the ‘common laws were as good as they could expect them to be’.

70. Trade Union and Trade Disputes (No. 2) Bill, Bill No. 91. Introduced 22 February 1904 and supported by Hardie. This Bill had again been rejected by the Parliamentary Committee of the TUC: Minutes 16 December 1903.

71. Paulton was persuaded by Richard Bell, but admitted that he was not totally in favour of the Bill. Minutes of Parliamentary Committee TUC 18 February 1904.

72. Trade Union and Trade Disputes Bill 1904, Bill No. 8. (Note the broad title (on the advice of the Speaker) to cure the defect of the previous year). Supported by Bell, Shacklet on and Dilke et al. Introduced 5 February 1904. First Reading, 22 February 1904, Second Reading, 22 April 1904.

73. Trade Disputes Bill 1905, Bill No. 2. (Somehow the narrower short title was again acceptable.) Presented by the Liberal Mr Whittaker and again supported by Bell, Shackle-ton, Dilke ef al. First Reading 17 February 1905, Second Reading 10 March 1905, Report 8 May 1905, Withdrawn 26 May 1905. It achieved a second reading by 252 votes to 130. Neither Campbell-Bannerman nor Sir John Walton voted.

74. Although funds for ‘benevolent or charitable purposes’ were to be fully protected. Trade Disputes Bill, as amended in Standing Committee, Bill 205.

75. There was a backbench Conservative Bill, the Trade Unions Bill 1905, Bill No. 151, which would have limited immunity to action taken by members in breach of the rules of the union, but it also gave full immunity to charitable and benevolent funds, and also gave protection against civil conspiracy and peaceful picketing. First Reading 6 April 1905, Withdrawn 19 July 1905. The TUC Parliamentary Committee refused to meet Hickman to discuss his Bill in April 1905 and again in October even though on the latter occasion he indicated that if they agreed to his Bill the government might pass it.

76. The TUC Parliamentary Committee met Campbell-Bannerman on 21 December 1905 as Prime Minister when he agreed that a Trade Disputes Bill was necessary without delay. Campbell-Bannerman took over as Prime Minister on 5 December 1905 on the collapse of the Balfour administration, but the elections were not held until 1906.

77. Of whom 29 members of the Labour Party, and one other was to join after the election.

78. Trade Disputes Bill 1906, Bill No. 134.

79. Clause 4 read as follows: ‘Where a committee of a trade union constituted as hereinafter mentioned has been appointed to conduct on behalf of the union a trade dispute, an action whereby it is sought to charge the funds of the union with damages in respect of any tortious act committed in contemplation or furtherance of the trade dispute, shall not lie, unless the act was committed by the committee or by some person acting under their authority: Provided that a person shall not be deemed to have acted under the authority of the committee if the act was an act or one of a class of acts expressly prohibited by a resolution of the committee, or the committee by resolution expressly repudiate the act as soon as it is brought to their knowledge.’

80. See Wilson, A Life of Sir Henry Campbell-Bannerman (1973) p. 505.

81. Times, 31 March 1906, p. 12. Letter from B. Wise.

84. Trade Union Immunities 1981, Cmnd. 8128.

83. Hansard Parl. Debs. Vol. 154, cols. 1306–7 (28 March 1906). This echoes the view of the Royal Commission Cd. 2825 para. 33 that ‘Such a claim has indeed in former times been made by the spiritual against the civil authority, and has been consistently disallowed. What was denied to religion ought not in our judgment to be conceded to Trade Unionism’.

84. Russell, A.K., Liberal landslide-: The general election of 1906 (1973).

85. See for example Mr Norman (Wolverhampton) and Mr LI. Williams (Carmarthen District), Times, 31 March 1906.

86. Trade Disputes Bill 1906, Bill No. 5. Presented by Mr Hudson and supported by Keir Hardie, Dilke, Shackleton et al.

87. Clause 3 of Bill 5: An action shall not be brought against a trade union, or other association aforesaid, for the recovery of damages sustained by any person or persons by reason of the action of a member or members of such trade union or other association aforesaid.

88. F.E. Smith pointed out that the sole issue was therefore whether the immunity had in fact existed. He said ‘The opinion of any man who was not a lawyer was not worth a brass farthing’. Hansard Parl. Debs. Vol. 155, col. 29.

89. Hansard Parl. Debs. Vol. 155, col. 51.

90. Hansard Parl. Debs. Vol. 155, col. 51. He appears to have indicated the day before the debate that he would support the Labour Bill. Minutes of Parliamentary Committee of TUC 29 March 1906.

91. The Times leader said ‘The Prime Minister showed only too clearly that the iron of Mr. Keir Hardie's threat had entered his soul …it is perhaps the most significant example yet given of the methods to which the government are drawn in order to extricate themselves from the many difficulties with which insincere electioneering pledges have already surrounded them’. Times, 31 March 1906.

94. Hansard Parl. Debs. Vol. 155, col. 1482.

93. Hansard Parl. Debs. Vol. 162, col. 1731.

94. Hansard Parl. Debs. Vol. 162, col. 176.

95. Hansard Parl. Debs. Vol. 163, col. 1415. The phrase was significant because the inclusion of the words extends the immunity. They found their way back in to the law in the Trade Unions and Labour Relations Act 1974, s. 13(4).

96. Hansard Parl. Debs. Vol. 162, col. 1631,3 August 1906 (Refusal); Vol. 163, col. 1459, 2 November 1906 (Acceptance).

97. Hansard Parl. Debs. Vol. 164, col. 881. There was an attempt to re-insert the words at Third Reading (Vol. 164, col. 881) and also by the Lords but this was again rejected by the Commons (Vol. 167, col. 1139). It is interesting to note that even then Parliament was playing the numbers game, with proposals that pickets should be limited to three. Parl. Debs. Vol. 162, col. 183. It is also clear that the judges later misinterpreted the picketing section which was intended to be positive. Parl. Debs. Vol. 162, col. 1657.

98. The meeting was between all Labour MPs, the General Federation Committee and the Committee of the Labour Party.

99. This was done by Rufus Isaacs redrafting clause four in two subsections rather than one.

100. Minutes of Parliamentary Committee of TUC 24 October 1906.

101. Hansard Parl. Debs. Vol. 162, col. 1655.

104. A qualification that was later deleted from the clause.

103. This view of the law was rejected by the Liberal lawyer Atherley Jones. The amendment was also supported by Shackleton.

104. See Tynan v Balmer [1967] 1 QB 91, Broome v DPP [1974] ICR 84 and note the encouragement in the Employment Act 1980 s. 17 for employers to obtain civil injunctions for nuisance.

105. Hansard Parl. Debs. Vol. 162, col. 1678.

106. And note that the Labour Bill did not even have an Allen v Flood clause in it, whereas Dilke's Bill of 1902 did.

107. The Industrial Relations Act 1971 introduced a different form of liability, but the issue was the same. Later the clause was fought over during the passage of the Trade Union and Labour Relations Act 1974 and then extended by the Trade Union and Labour Relations (Amendment) Act 1976. It has now been restricted by the Employment Act 1980.

108. It is claimed that Dilke believed the Labour members to be too timorous. ‘Too easily satisfied’ he wrote. See Appendix II to Chap. 52 of Gwynn and Tuckwell, Lift of sir Charles Dilke, written by his assistant, Miss Mary MacArthur.

109. On the grounds that to be actionable inducing breach of contract must be done ‘maliciously’ but later judgments of the courts were not helpful to the unions on issues of justification.

110. Hansard Parl. Debs. Vol. 162, col. 1692.

111. Hansard Parl. Debs. Vol. 162, col. 1752.

112. Hansard Parl. Debs. Vol. 163, col. 297.

113. See Ware and DE Freville Ltd v Motor Trade Association [1921] 3 KB 40 and Bowles v ACTAT [1963] 2 QB 643. The point was finally settled by the Trade Union and Labour Relations Act 1974, s. 14.

114. The Lords amendment read that a trade dispute should include disputes ‘between employers and workmen, servants or persons employed in any trade or industry, whether in such employer's employment or not’.

115. The Industrial Relations Act 1971, s. 167 omitted such disputes, but they were restored by the Trade Union and Labour Relations Act 1974. The Employment Act 1980, while not changing the definition of trade dispute, has in effect by s. 17 made worker/worker disputes subject to liability again.

116. Notably Lord Robert Cecil and Sir Edward Carson. The only time when Balfour appeared to be agitated was when he walked out of the House on the grounds that the Prime Minister had promised not to continue debates after 11.00 pm. Hansard Parl. Debs. Vol. 162, col. 1773.

117. Hansard Parl. Debs. Vol. 881, col. 906.

118. Hansard Parl. Debs. Vol. 166, col. 704.

119. Hansard Parl. Debs. Vol. 167, col. 704. In this he was joined by Dicey who referred to it as an ‘astounding Bill’. Letter to the Tames, 19 November 1906.