Law and Opinion in England in the 20th Century [Reprint 2020 ed.] 9780520345331

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LAW AND OPINION IN ENGLAND IN THE 20th CENTURY

LAW A N D OPINION IN E N G L A N D in the 20th Century

EDITOR

MORRIS

UNIVERSITY

OF

GINSBERG

CALIFORNIA

BERKELEY AND LOS ANGELES 1959

PRESS

Published in the United States of America and in Canada by the University of California Press of Berkeley and Los Angeles, California Published in Great Britain by Stevens & Sons Limited of 11 New Fetter Lane London — Law Publishers

All rights reserved

Printed in Great Britain

CONTENTS page vii

Preface TRENDS THE

OF

THOUGHT

G R O W T H OF SOCIAL RESPONSIBILITY

by Morris Ginsberg,

3

M.A., D . L I T . , L L . D . , F.B.A.

Professor Emeritus of Sociology in the University of London THE

LEGACY OF PHILOSOPHICAL RADICALISM

27

by J. P. Plamenatz, M.A. Fellow of Nuffield College, THE

Oxford

CONSERVATIVE TRADITION AND ITS REFORMULATIONS

..

42

by W. L. Burn, M.A., J.P. Professor of Modern History in the University of Durham THE

L I B E R A L OUTLOOK

63

by R. B. McCallum, M.A.

Master of Pembroke College,

Oxford

T H E GROWTH OF SOCIALISM

79

by G. D. H. Cole, M.A. Chichele Emeritus Professor of Social and Political Theory in the University of Oxford

LEGAL

DEVELOPMENTS

T H E L A W OF ASSOCIATIONS

99

by D. Lloyd, M.A., LL.D. Quain Professor of Law in the University of London T H E L A W OF PROPERTY ( L A N D )

116

by J. A. G. Griffith, LL.M. Reader in English Law in the University df London BUSINESS

143

by L. C. B. Gower,

M.B.E.,

LL.M.

Sir Ernest Cassel Professor of Commercial Law in the University of London MONOPOLIES AND RESTRICTIVE PRACTICES

by Sir David Cairns, Q.C.

Recorder of Sunderland

V

173

Contents ADMINISTRATIVE L A W

193

by W. A. Robson, B.sc.(econ.),

LL.M.,

PH.D.

Professor of Public Administration in the University of

London

LABOUR L A W

215

by O. Kahn-Freund,

LL.M.,

DR.JUR.

Professor of Law in the University of London CRIMINAL L A W AND PENOLOGY

by H. Mannheim, Formerly

264

DR.JUR.

Reader in Criminology

in the University of

London

FAMILY L A W

286

by The Hon. Sir Seymour Karminski One of the Justices of Her Majesty's High Court of Justice

TRENDS

OF SOCIAL

POLICY

HEALTH

299

by R. M. Titmuss Professor of Social Administration in the University of London EDUCATION

319

by D. V. Glass, B.sc.(econ.), PH.D. Professor of Sociology in the University of London SOCIAL SECURITY

347

by B. Abel-Smith, M.A., PH.D. Lecturer in Social Science at the London School of Economics and Political Science INDUSTRIAL RELATIONS

364

by B. C. Roberts, M.A. Reader in Industrial Relations in the University of

Index of Names Subject Index ..

London

391 ..

397

vi

PREFACE

THIS book contains the text of seventeen public lectures delivered at the London School of Economics and Political Science during the Session 1957-58. The scheme was suggested by Dicey's Law and Public Opinion in England During the Nineteenth Century. What we had in mind was at once a continuation of that work to take account of the developments since it was written and a widening of it so as to explore not only the field of legal changes, but the wider aspects of social policy. Dicey, in his day, saw a " close and demonstrable connection during the nineteenth century between the development of English law and certain known currents of opinion." Whether he thought this connection to be causal in character is not clear. In any case, no assumption of a direct causal connection was made in planning the course. The aim of the lectures was rather to explore the possible relations. It was expected that the answer would be found to be different in different fields, and it was left to each lecturer to define the connection as he saw it in his own particular domain. The majority of the lectures were given by members of the staff of the School. But we felt that the series would be greatly improved if we could secure the help of lecturers from outside. It is my pleasant duty to thank the distinguished scholars who thus came to our aid. Readers of the book will have no difficulty in recognising that their contributions added greatly to the value of the course. The field covered is very wide and, as each lecture was prepared independently of the rest, there is an evident lack of system and some overlap. This, however, it seems to me, is not a disadvantage. Many of the subjects discussed are highly controversial, and they raise fundamental issues about vii

Preface

which there are profound differences of opinion. An appearance of unity would have been highly deceptive. Each lecturer was accordingly left to develop his subject in his own way. The result is that while in some fields there is convergence or congruence of views, in others underlying differences remain. This will, I hope, be found to give a certain vigour and freshness to the book and to make for greater readability. Above all, it will serve to emphasise the fact that the problems dealt with are far from being solved, though they have changed in form since Dicey wrote, and can no longer be adequately expressed in terms of an antithesis between individualism and collectivism. The lectures are here printed in the order in which they were delivered. As originally planned, the scheme was to contain a historical introduction setting the scene of the movements of thought and action to be explored in the coursc. Unfortunately this had to be omitted at the last moment owing to the sudden illness of Mr. H. L. Beales who had undertaken the task. The first lecture was entrusted to me and in it I dealt with some of the philosophical issues raised by Dicey's diagnosis of a trend towards collectivism. This lecture expresses my own view of some of the developments in philosophical thought in its bearing on social policy in the period under review. Though the first to be delivered it was not intended, and is not to be taken, as a general introduction to the course. MORRIS GINSBERG.

The London School of Economics and Political Science, (University of London). March, 1959.

viii

THE

GROWTH

SOCIAL

OF

RESPONSIBILITY MORRIS GINSBERG I

I SHOULD like to begin with a few words to set the scene of the movements of thought and action to be examined in this course. During the period under review momentous events have taken place—two world wars, the rise and fall of Fascism and Nazism, the Russian Revolution. T o these must be added developments which in the long run may turn out to be as important as any of these events, namely, enormous advances in technology and the growth of large-scale organisations, not only in industry, but in management and administration and even in scientific research. These events have been accompanied by great changes in the balance of social forces and they call for careful analysis in any study designed to explore the impact of opinion on law and social policy. I will not prejudge the issue, beyond saying that, in my view, in addition to structural strains and stresses, a prime source of social change is discontent, especially discontent sharpened by a feeling of injustice. Such a feeling can be very powerful even though there may be no clear conception of what justice is. But it gains in strength when defined by a guiding idea or belief. Occasionally the ideas or beliefs may initiate the discontent, but more often they emerge in the course of the movement generated by the feeling and may drag behind. It is unfortunately not possible for me to undertake here the difficult task of analysis which these considerations suggest. In what follows I propose to deal mainly with Dicey's diagnosis of a trend away from individualism towards what he called collectivism. I shall be concerned mainly with the philosophical issues, but I will venture on a few brief comments also on the relations between the changes in thought and the social upheavals to which I have just referred. What has become of individualism? In dealing with this question I find it useful to distinguish between political individualism, 3

Trends of Thought sociological individualism and methodological individualism. By political individualism I understand the theory that the good of the State consists in the well-being and free initiative of its members and that such well-being is best secured by each individual pursuing his own good in his own way with a minimum of State interference. By sociological individualism is meant the view that society is to be conceived as an aggregate of individuals whose relations to each other are " external." It can perhaps be best understood by contrast with " organic " views which consider society as in some sense a new whole, other than or more than its interrelated members. Methodological individualism is the view that in studying social phenomena the best procedure is to begin with individual actions and to consider social wholes as complexes of social relationships arising out of the behaviour of individuals in so far as this is directed towards or away from other individuals. It has been alleged that these forms of individualism are necessarily linked, but for this allegation I find no confirmation either in the logic or the history of political thought. In some cases the three forms of individualism have been interwoven, but the association is far from complete. Sociological individualism may be held concurrently with State absolutism, as, for example, by Hobbes. On the other hand, those who have been in favour of extending the power of the State have not necessarily committed themselves to a " holistic " methodology or to any view of the structure of society which merges the individual in the social whole, as can easily be seen by comparing the views of such liberal thinkers as Green and Hobhouse. Organic views of society may sometimes be combined with extreme forms of political individualism, as, for example, by Spencer. Here we are concerned with political individualism. Historically the problems it sought to resolve arose out of the fact that everywhere in the modern world a double movement occurred. On the one hand, there was a breakdown of the older social structure and therewith a liberation of the individual. On the other hand, there occurred an enormous increase in collective powers and a process in which the community took over functions previously left to the individual, the family or some other body. There resulted the paradoxical situation that while the liberty of the individual was won through collective power, collective power also threatened 4

The Growth of Social

Responsibility

individual liberty. The problem which modern societies had to face was how to base liberty on law and law on liberty. The movements thus generated were highly complex and varied and they cannot be adequately described by such words as liberalism, socialism, individualism, collectivism, which have very different meanings in different contexts. Political individualism seems to me to have its roots, first in the notion of personal rights, linked with the doctrine of natural rights, and secondly in the different forms of utilitarianism. In tracing the trends away from individualism which Dicey predicted, it is useful to follow up the developments which these doctrines underwent in the period under review. Only the salient points can here be dealt with. The strength of individualism in so far as it rested on the theory of natural rights lay in its insistence on the values of personality. But these were interpreted in too abstract a fashion. The general effect of the criticism to which individualist doctrines were subjected may be briefly summed up thus. In the first place, it was recognised that the doctrine in its earlier forms tended to erect too sharp an antithesis between the personal and the social. It was the contribution of the Idealist philosophers to show that as T. H. Green put it, " without persons no society, without society no persons." From this point of view it came to be seen that though in a sense rights inhere in the human person as such, they have no meaning except as defining relations between persons sharing a common life. Rights, in short, are claims to the conditions of well-being which a person may make or which are made for him and which are demonstrably justifiable by their relation to well-being. This defines moral rights. Legal rights are claims recognised by law whether or not they are morally justifiable. Rights and duties are assigned to persons, but the notion has been generalised, and applied, though not without difficulty and ambiguity, to other entities such as corporate personalities, e.g., churches, associations of workers or employers, municipalities or families. These are subjects of rights and duties defining the conditions necessary for the fulfilment of their functions. The community itself may also be said to have rights, that is, claims upon its members for the conditions needed for the fulfilment of its functions as a 5

Trends of

Thought

community. These may be defined by the legal constitution or otherwise through the legislature. In the second place, criticism was directed against the tendency to treat rights as self-subsistent, or to allow particular rights, e.g., property or contract, to dominate all others. It was seen that owing to the complexity of social relations, rights founded on one set of relations might conflict with rights founded on other relations and that this involved a balancing of claims in the interests of greater freedom on the whole. Thus, for example, the rights of contract may come into conflict with the right of a competent and willing worker to the minimum conditions of a decent life. The recognition of this conflict has in fact led to legislation restricting the freedom of contract by fixing wage rates and conditions of work. Similarly, the principle of equality may be, and has been, used to define rights so as to equalise freedom. This point can also be illustrated from the right of contract. Liberal criticism seized on the point that freedom implied substantial equality between the parties, and that there was no such equality, for example, in the case of a factory owner who employed children or entered into a bargain with unorganised adult workers. On this ground, therefore, it was argued that it was just to restrict the freedom of contract in the interests of the weaker party.1 The principle of equality has been particularly important in dealing with the ethical basis of private property. The most powerful defence of private property was that adduced by Idealist writers, namely, that private property was necessary for the development of personality. But this argument if universalised has consequences, as T . H. Green saw, which so far from justifying the existing distribution of wealth go far to condemn it. For it is clear that under existing systems of private property the majority have not got enough property of the kind and amount required for the development of personality, while a few have more than is needed for the good of their development and which in fact they can use as an instrument of power over others. Hence what set out as a conservative principle had seeds of radicalism in it. As Hobhouse argued, " Ethical 1

This was clearly formulated by J. S. Mill in reference to the employment of children. "Freedom of contract, in the case of children is but another name for freedom of coercion." Principles of Political Economy, Bk. V, Chap. XI.

6

The Growth of Social Responsibility individualism in property, carried through, blows up its own citadel." 2 In the third place, and partly as a result of the recognition of the need of balancing conflicting claims, the notion of rights and of equality in rights has been slowly extended from the political to the economic and social spheres. This can be seen in the recognition of the right to the minimum conditions of a decent life embodied in legislation fixing minimum wage rates, in the recognition of the duty of governments to assure full employment, in the various provisions for old age, sickness and unemployment and in the extension of opportunities for education, including secondary and higher education. These measures involve a fundamental departure from individualist theories in that they employ State power to equalise freedom, and are based on the belief that personal liberty and State control are not necessarily opposed. They involve a repudiation of the charge so often levelled against the collectivist or socialist trend in liberal thought that it sacrifices liberty for equality. The use of the public resources and of public power to assure a greater diffusion of educational opportunity, to control and eliminate disease, to improve conditions of work, to abolish slums no doubt means an interference with the liberty of some individuals, but it tends on the whole to maximise liberty. What social liberalism has been concerned to maintain is that the principle of equal freedom must be taken more seriously than was done by the individualists, and that the power of the State may be righdy used to reduce or remove arbitrary inequalities, and to ensure that the common resources should not be employed for selfish ends, but for the general well-being. Finally, the universalist implications of the notions of the rights of man have come to be more fully realised. This can be seen in the various efforts to reduce arbitrary differences, such as those based on sex, religion and colour and, more recently, in the attempts to find concrete expression for the idea of human rights in the sphere of international relations. These movements point, I think, to a valuable element in the theory of natural rights, namely, the subordination of politics to ethics. On this view there are moral rights and duties, wherever there is human intercourse, 2

" T h e Historical Evolution of Property," Property: ed. Charles Gore, 2nd ed., 1915, p. 29.

7

its Duties and

Fights,

Trends of

Thought

though there may be no durable " societies " and no States, that is, politically organised societies. In this sense there are rights of man as such. There are recognised rights wherever there are societies with a regular structure, though there may be no differentiated machinery for promulgation and enforcement. There are legal rights in societies that have a developed judiciary and organs of enforcement. The legal rights may or may not be in harmony with recognised moral rights or with moral rights not widely recognised but demonstrably justifiable as conditions or constituents of well-being. The validity of a right does not depend on this view, on its recognition. Green thought otherwise. But his dictum3 that there is no right but thinking makes it so, must, as Hobhouse points out, be set aside as inconsistent with his own better teaching.4 II The relation of Utilitarianism and political individualism was discussed at length by Dicey. He argues that the " dogma of laissez faire is not from a logical point of view an essential article of the utilitarian creed." 5 He does not see, as more systematic thinkers have since seen, that if the two are to be linked, that is, if a transition is to be made from the principle of the greatest happiness to a principle limiting governmental intervention to the prevention of mutual interference among individuals, two assumptions have to be made, one psychological and one sociological. The psychological assumption is that every individual knows his own interests best and is likely to pursue them more energetically and intelligently than any government will do it for him. The sociological assumption is that an aggregate of persons, each pursuing his own good actively and intelligently with the least restraint, is likely to realise the greatest attainable happiness for the aggregate. Whether anyone ever accepted these propositions without serious qualifications I will not here inquire. In any case, the hollowness of these assumptions and the futility of drawing conclusions from them, taken as valid for all times and conditions, has been shown clearly enough by critics from within and from without the utilitarian camp. That 3 4 5

Principles of Political Obligation, p. 140. Elements of Social justice, p. 40. Dicey, Law and Public Opinion in England, 2nd ed., 1914, p. 146. 8

The Growth of Social Responsibility the principle of non-intervention is subject to important qualifications was freely conceded and indeed insisted upon by Mill, Sidgwick and Marshall. Thus Mill justified compulsory education on the ground that this was not a matter which could be left to " the demands of the market." He argued further that in those cases in which individuals acted through delegated agencies, it was possible that much that was done by voluntary organisations, e.g., Joint Stock companies, could be done as well by the State, and, though he was of the opinion that to avoid undue concentration of power it was better to leave to voluntary organisations all that they could do " even tolerably," it did not follow that they were to be exempt from public control. This was especially so where the nature of the service resulted in monopoly, in which case governmental control was justified in the interests of the public. In these cases governmental intervention was righdy used to override the judgment of individuals concerning their own interest. In other cases, such intervention was justified in order to give effect to such judgment. These included cases in which uniformity was imperative to prevent a few individuals from coercing the rest by standing out. Mill instances the case of the hours of work in which limitation by mutual agreement is likely to prove ineffective without the sanction of legal enforcement. Another interesting exception given by Mill related to the freedom of contract. In case of engagements in perpetuity or for life, without provision for revoking the contract, it may be desirable to make release possible on a sufficient case being made out before an impartial authority. As Mill explains, these considerations are eminendy applicable to marriage. His argument is still of importance today. It is often maintained that the marriage contract ought to be indissoluble, as it is necessarily entered into for life. To this Mill would reply that an agreement entered into antecedently to any experience of its consequences ought not to be irreversible when experience condemns it. The function of the law, he argues, in such cases is to see to it that the contracts are made with due deliberation. Thereafter the parties should not, indeed, have the right to revoke the contract at will, but in compensation should be given the opportunity of obtaining release by the judgment of an impartial authority.8 6

Principles of Political Economy, Bk. V, Chap. XI.

9

Trends of Thought In the same spirit, Sidgwick, writing in 1891, introduced so many qualifications of the individualist view of governmental interference as occasionally to turn it virtually into its opposite. Thus, in dealing with the right of appropriation, he argued that starting from strict individualism it could be shown that the right of appropriation was subject to limitation and regulation in the public interest and that theoretically even the complete abolition of private property in land might be defensible. Again, like Mill, he pointed to the need to control monopolies despite the fact that this interference was inconsistent with individualism when monopoly was the result of a combination made freely by the persons combining. Like Mill, again, he justified governmental interference in cases where uniformity was essential and voluntary combination likely to prove ineffectual, although unlike Mill he did not apply this principle to the problem of limiting hours of work. More generally, he thought public action was justified in cases where uniformity was not indeed imperative, but where the interests of the whole community could be better promoted by governmental action or regulation. In sum, the general principle of laissez faire in its abstract form is abandoned in favour of the view that the degree and extent of governmental limitation and regulation has to be determined in each case by experience and an estimate of the probable consequences. T h e appeal is then to the principle of the greatest happiness and not to the psychological and sociological assumptions with which in earlier views of laissez faire it was linked. 7 These assumptions have indeed worn very thin. N o one would now maintain that people can be relied on to take an enlightened view of their own ends or that they are often likely to know of the best means needed to attain them, or either that individuals are more clear-sighted acting separately than when acting as a group or, conversely, that group action is always more clear-sighted and efficient than individual action. N o one is now likely to accept a natural harmony of public and private good. Where such coincidence exists it is seen to be the result of the action of social and T

Marshall gave a new twist to the principle of laissez faire, when he argued that under modern conditions it should be interpreted to mean: " Let everyone work with all his might; and most of all let the Government arouse itself to do that work which is vital and which none but Government can do efficiently." {Memorials of Alfred Marshall, ed. A. C. Pigou, p. 336.)

10

The Growth of Social Responsibility political institutions which direct individuals or make it possible for them to satisfy their own needs in a manner conducive to the general good.8 If a harmony is to be attained there must, on individualist principles, be freedom, enlightenment and equality of opportunity, and these cannot be attained without organised aetion for a common good and without imposing restraints on the oppressive use of personal or class ascendancy. The notion of a harmony of interests does not solve but rather states a problem: to work out a form of social organisation which shall be as efficient as possible without loss of freedom and individuality. In this context, as in others, individualist principles, tested by experience, were seen to lead to conclusions not far removed from those acceptable to collectivists. The experience involved in this movement may be considered from two points of view. First, as Marshall, writing in 1907, pointed out, the attitude of suspicion towards governmental action, which was intelligible enough in Adam Smith's time, was slowly dissipated by the increase in the probity, unselfishness and resources of governments which Mill noted in his own lifetime and which were the more noticeable as the scope of governmental intervention was being enlarged. Furthermore, the possibilities of democratic control were enhanced by the growth of general education and the diffusion of political awareness. At the same time technical progress made it possible for government to amass information on a scale not open to individuals and to command the resources not available to individuals for carrying decisions into effect. In these circumstances, the extreme individualist position confining governmental activity to the prevention of mutual interference was seen to be palpably untenable. Secondly, there was experience of another kind which was perhaps of greater importance for the growth of socialism and of the more socialised forms of liberalism. This was the dawning realisation that despite the marked social improvements—the rise in wages, the improved housing and sanitation, the fall in the death rate—the prospect of real economic independence for the workman 8

Cf. Cannan, Economic Review, July 1931, p. 333. Cited Pigou, The Economics of Welfare, p. 114. " T h e working of self interest is generally beneficent, not because of some natural coincidence between the self interest of each and the good of all, but because human institutions are arranged so as to compel self interest to work in directions in which it will be beneficent." 11

Trends of Thought was, under a system of individual competition, exceedingly remote. The notion that self-help, prudence and thrift would enable the ordinary workman to maintain himself decently and to provide of his own resources for the contingencies of life, plausible perhaps in the earlier days of the Free Trade era, lost its force as it became increasingly clear that the conditions of life were determined by forces which the individual workman could not control. The idea was gaining ground that such control was a social responsibility, that it was the duty of the community to assure to every workman at least the minimum conditions of well-being, and that this duty was not adequately discharged by leaving each individual to fend for himself in the higgling of the market. Thus the growing experience of the possibilities open to State action, the realisation that there are many things that can be better done by the State than by individual effort, and, on the other hand, the spread of the belief that the primary conditions of industrial well-being cannot be assured on individualist lines converged to create an atmosphere favourable to new conceptions of distributive justice, by which the State should be guided in dealing with the problems of economic organisation. The development of these conceptions of social justice will no doubt be traced in the lectures to be devoted to the trends of thought and policy. I should like, however, to dwell a little on the part played by the concepts of equality and of property rights in the reconstruction of liberal thought. The Utilitarians, of course, took the idea of equality for granted. In estimating happiness, Bentham tells us, " Every one is to count for one and nobody for more than one." " Between his own happiness and that of any other human being, the Utilitarian theory requires a man to be rigidly impartial," says J. S. Mill. So Sidgwick takes it as axiomatic that in so far as people are alike it is reasonable to treat them in the same way. Yet despite the acceptance of the principle that equality is in itself something to be desired, the Utilitarians were very cautious in applying it to the distribution of property or income or to the changes in the system of free enterprise which might be necessitated by approximation to equality. T o Bentham security appeared more important than equality. " Security by preserving its rank as the supreme principle, indirectly conducts to the establishment of equality; whilst this latter, if taken as the basis of social 12

The Growth of Social Responsibility arrangements, would destroy security in establishing itself." 9 It is important to " maintain the distribution which is actually established." 10 " The law of distribution applied to the matter of wealth which is most favourable to universality of subsistence, and thence, in other words, to the maximisation of happiness, is that which, while the fortune of the richest . . . is greatest, the degrees between the fortunes of the least rich and the most rich are the most numerous, in other words, the gradation most regular and insensible." 11 How far the existing distribution corresponded to this requirement he does not inquire. W e must accept the comment made by Halevy, who cites this passage: " T h e aim should be to develop the middle class: to this can be reduced the equalitarianism of Bentham and James Mill." 12 In general, economists seem to have followed Hume, who argued that equality would endanger the virtues of " art, care and industry " and instead of preventing want in a few would lead to the impoverishment of the entire community.13 Developing these points later economists have maintained that whilst equality was in itself desirable as likely to involve an addition to economic welfare, inequality had to be tolerated as a necessary evil, on the ground that it provided the incentives needed to maintain the system of production and to avoid diminution of the total available for distribution. The arguments were set out in detail, for example, by Sidgwick who argued that though a more equal distribution of wealth would prima facie tend to increase happiness, it was open to the objection that it would discourage effort, decrease saving, lessen the efficiency of capital and check the growth of culture, especially of those elements of culture which have no immediate practical utility.14 These arguments, though couched in different terms, are still put forward today. It is true that economists in the classical tradition, writing towards the end of the last and the early decades of this century, showed that they had not escaped the influences of » Worlds, I, p. 313. Ibid., I, p. 311. 11 Ibid., Ill, p. 230. 12 Growth of Philosophical Radicalism, p. 366. 13 Enquiry, s. Ill, Pt. II. 1 4 It is interesting to note in view of what is happening in Soviet Russia that Sidgwick felt sure that a socialist government would be as timid and unenterprising as other governments in availing themselves of the results of inventions or in trying expensive experiments. Principles of Political Economy, p. 521. 10

13

Trends of

Thought

the changes in the climate of opinion.15 They all think equality in itself to be desirable. They all wish the conditions of well-being to be more widely diffused among the masses of the people. It remains that they refrain from advocating any radical changes in the organisation of industry on the ground that changes in distribution must be considered in their effect on production, and that equalisation would tend (at least, until other motives than selfinterest can be appealed to) to diminish the total available for distribution, and so would not help those for whose benefit it is advocated. An entirely different note is struck by liberal socialists such as J. A. Hobson, L. T . Hobhouse and R. H. Tawney. Hobson argued that in modern conditions inequality was not only ethically wrong but economically indefensible. It was not true, he thought, that a movement towards greater equality would lead to an insufficiency of capital needed to develop the technical improvements made possible by the growth of applied science. It was reasonable to expect that greater security on a higher level of living would stimulate a far larger contribution to the saving fund made by the general body of workers and that, in any case, an increasing share of new capital would be provided out of public revenue raised from taxation upon " surplus" elements of income. Improvement in the lot of the poor was not only compatible with, but a condition of, economic progress.16 Tawney in his powerful book on Equality argued that opponents of egalitarianism attributed to its defenders a view of equality which they were not concerned to maintain. Egalitarians did not believe in breaking up large incomes with a view of redistribution in equal shares for all. The policy advocated aimed at the pooling of the surplus resources of the nation's income by means of taxation and the use of the funds thus obtained for the purpose of assuring to all the conditions of well-being, which, without such measures, are enjoyed only by the rich. In arguing against equal division of income to all persons on the ground that it would injure many, and confer only slight benefit, if any, to a few, anti-egalitarians are " bombarding a position which no one occupies." The problem of redistribution is to be considered not 15

16

Compare, for example, Marshall, Principles of Economics, pp. 46 ct seq.; Cannan, Theories of Production and Distribution, concluding chapter; Pigou, Economics of Welfare, p. 83. Wealth and Life, Pt. IV, pp. 217 et seq. 14

The Growth of Social Responsibility only in terms of the remuneration which people are paid for their services, but in terms of the social income which through the growth of communal provision they receive as citizens." From the philosophical and sociological point of view the fullest analysis of social justice since Sidgwick seems to me to be that given by Hobhouse. He gives a fresh interpretation of the old maxim that justice is a kind of equality. Equality means, in the first place, that every person and every function must be given equal consideration in determining the common good. The good which anyone may claim legitimately all may claim. Differential treatment is justified only when it is required in the interests of the system as a whole. T h e general principle of distributive justice is, according to Hobhouse, " E q u a l satisfaction of equal needs, subject to the adequate maintenance of necessary functions." T o secure adequate performance of functions differential reward proportionate to the value of the work may be justified, the value of the functions being determined by their utility in supplying general needs in the order of their importance and the difficulty of securing their performance. In the light of his general analysis Hobhouse discusses the general principles which should govern the remuneration of services and the form of economic organisation most likely to satisfy the demands of social justice. The system advocated is on the whole more in harmony with social liberalism than with socialism proper.18 The aim is to define the conditions in which equality and liberty may be made to complement each other and in which property as power may be reconciled with property as freedom. What Hobhouse has to say on these matters is, I think, as important today as when he was putting his principles to the test in his work as Chairman of Trade Boards.1" A somewhat similar line of development may be traced in the changes of attitude towards the rights of property. In general terms the Utilitarian position has come to be widely accepted, in the sense that it is agreed that property rights, like other rights, are to be tested by their effects on the public good or well-being. But this does not take us very far, for socialists and individualists alike claim to be guided by the common well-being. This can be seen already 17 18 18

Equality, Chap. V, 1931. Elements of Social Justice, 1922. On Hobhouse's contribution, sec Life and Wor\ of L. T. Hobhouse, Hobson and Morris Ginsberg, 1931.

15

by J. A.

Trends of Thought from the early history of socialist thought. Thus, for example, William Thompson argued that as judged by the test of utility the form of property then prevailing stood to be condemned. It produced not general happiness but general unhappiness. A just system would result in greater productivity, since it would provide incentive to the bulk of the workers which under existing conditions of insecurity they lacked. Management also had to be offered adequate incentives but this did not mean that it was entitled to any residuary claim on the product of other men's labour.20 From this and other examples that might be cited it can be seen that the appeal to general happiness and the need of incentives to maximise productivity, associated with the Utilitarian theory of the basis of property rights, can be used both in defence and in condemnation of the existing system of property. There is a Utilitarian socialism as well as a Utilitarian individualism. This ambivalence of Utilitarianism is not at all surprising. If the Tightness of a system is to be judged by its effects on general wellbeing, it is of the greatest importance to study its operation under different conditions. Thus, for example, while it may be that inequality of distribution was an important factor of industrial progress in the earlier stages of capitalism, it does not follow that it is equally important in a stage of high technological development and large-scale organisation. At such a stage egalitarian redistribution may be not only compatible with, but a condition of, further progress. The problem of incentives completely changes its character as industry moves from the type which prevailed when the factory owner formed and managed his own business to that which exists under Joint Stock Institutions in which ownership of capital and management are almost completely dissociated. In this context, as in others, the economic consequences drawn from Utilitarianism are not inherent in it as an ethical theory, but depend rather on the psychological and sociological assumptions with which in its earlier forms it was associated. Modern economists do not now claim any general validity for these assumptions. They would not maintain that the profit motive is equally important at all stages, or that arrangements are not conceivable in which other motives can be as effective as economic self-interest. As Cannan 20

Cf. W. Thompson, An Inquiry into the Principles of the Distribution of Wealth most conducive to Human Happiness, 1824.

16

The Growth of Social

Responsibility

pointed out the appeal to the argument that " human nature must always remain the same, does not trouble him (the modern economist) when he remembers how many things in our present State would have seemed absolute impossibilities to the mind of William the Conqueror or Queen Boadicea." To economists, we are told, the question is one of organisation. Proposed changes are to be judged by their tendency to promote production and to satisfy consumers' demands. In applying these tests Cannan tells us " the economist of today is far less hostile to socialism than his predecessors of the classical school." Despite all this, it remains that economists on the whole have continued to provide ammunition to those who wish to leave things as they are. " To the healthy eye it is obvious," says Cannan, " that the existing organisation, though not by any means perfect, is at any rate better than any organisation which any form of government could have substituted for it in the past or the present." 21 The most important qualification of Utilitarianism which has been made by philosophers is that most of them accept the view that happiness is not to be identified with pleasure and that there are other intrinsic goods than happiness. Among the latter are included moral qualities and the exercise of the creative faculties, cognitive and aesthetic. These modifications have their importance for theories of the ethical basis of property. For, if accepted, it would follow that in estimating the consequences of different types of property we have to consider not only their bearing on happiness but also on qualities of character and personality. In this way Utilitarian defenders of private property can adopt as their own the doctrine of the Idealist philosophers that private property is necessary to the development of individual character. This, for example, is the position adopted by Hastings Rashdall.22 Rashdall recognises, however, that the bare formula that property is necessary to the development of character is not sufficient to justify the capitalistic system en bloc. If this system is to satisfy ethical requirements on the ground that it encourages industry, originality, the sense of personal responsibility and family solidarity, it would have to be modified so as to avoid " the outrageous inequalities, the 21

Theories of Production and Distribution, 1924, p. 406. 22 C f " T h e Philosophical Theory of Property," Property: its Duties and Chap. II, ed. Charles Gore, Bishop of Oxford, 2nd ed., 1915.

Rights,

17 G.T.T.

2

Trends of Thought hardships and uncertainties and the injury to character which are produced alike by excessive wealth and excessive poverty." Liberal-socialist thinkers go much further than this. They argue that the distribution of property in capitalist societies is in no way proportionate to capacity for personal development or the striving for such development. They insist that if some form of private property is an essential condition of freedom for the individual, then such a requirement ought to be generalised, and they point to the absurdity of supposing that the propertyless labourer, under the capitalist regime without security of employment or the power to choose his career, enjoys any liberty of which socialism would deprive him. They add that if what is desired is to inculcate a sense of personal responsibility, then the industrial system should be so organised as to give to the masses of men the feeling that they have a share in its control, especially in those matters which most directly affect the conditions of work. Aware of the evils of concentration of power under collectivism, they are equally sensitive to the evils of irresponsible power under private enterprise. Accordingly, they advocate a system of " democracy " in industry, in which, that is to say, ultimate control of the industrial mechanism is vested in the community, while the rights of the individual are recognised by granting him effective participation in common decisions and the most direct participation in those which most nearly concern him. As to the form which the organisation of industry is to take if these requirements are to be satisfied, liberal socialist writers differ a good deal. In general they recommend considerable elasticity according to the nature and requirements of different industries. Though they look forward to an extension of public ownership and management they are by no means convinced that this should necessarily or even generally take the form of direct management by the State. A variety of forms is conceivable, and, indeed, already in existence, and there may always be a certain scope for individual enterprise. It is recognised that some form of personal property is necessary to give the individual the power to guide his own life and to work out his own purposes in his own way. This is to be provided for by a system which gives the individual property in his personal accumulations, freedom to choose and vary his occupation (subject to general requirements of industrial organisation) and opportunities to improve his own 18

The Growth of Social Responsibility economic position by greater and better social service. Equality either of possessions or of income is not on this view essential, providing the disparities are not so great as to endanger the civic minimum or to maintain or generate sharp differences of status. The limits of wealth desirable in varying technical conditions, in the interests of the individual possessor and the community cannot be determined in advance, but must depend on growing experience of the different methods of control and the motives to which they can appeal. In this generalised statement I have tried to sum up the opinions of liberal socialist thinkers in the early decades of this century, such as L. T . Hobhouse, J. A. Hobson, G. Lowes Dickinson, R. H . Tawney, G. D . H . Cole and Harold Laski. What they have to say cannot be stated in terms of an antithesis between individualism and collectivism. This also applies to the very different approach of J. M. Keynes. Keynes indeed thought (1926) that " Capitalism, wisely managed, can probably be made more efficient for attaining economic ends than any alternative system yet in sight," but he conceded that " in itself it is in many ways extremely objectionable." Improvements could be secured according to him by the growth and encouragement of semi-autonomous bodies lying somewhere between the individual and the State, by the closer approximation already in process of Joint Stock Institutions; when they have reached a certain size and age, to the status of public corporations. The trend towards " semi-socialism" was, he thought, a natural line of evolution. It was important to keep an open mind regarding the various forms of this semi-socialism that were possible, though in general preference was to be given to semiautonomous bodies as against organs of the Central Government for which Ministers of State are direcdy responsible.23 Ill Our survey shows that the important issues in political philosophy cannot be adequately defined in terms of the antithesis between individualism and collectivism. Both political theory and practice have shown that the scope of useful intervention by society, whether in the form of State action or of action by other collective 23

The End of Laissez-faire, 1926.

19

Trends of

Thought

agencies is, and in modern conditions must necessarily be, much larger than was formerly supposed. The important thing, as Keynes pointed out, is to distinguish between those services which are technically social and those which are technically individual. The various attempts to devise formulae to define the ends and limits of State action have proved inconclusive.24 But there is now general agreement that there is much that the State can do which is not only consistent with liberty but essential to it. The limits are practical. They turn upon such questions as what sort of things can be achieved by the use of legal sanctions and cannot be achieved without them, what can best be done by individuals or by voluntary organisations of individuals and what things of importance would remain undone, if the State did not do them. The issues involved were raised again and again in different forms in the interval between the world wars and, more recently, in the controversies about planning. The impact of the First World War was on the whole in the direction of strengthening the faith in collective action. Under government direction great progress had been made in technique and management, and, under the impulse to work together for a common cause, relations between employers and employed had gready improved. To many it seemed that if such good results could be achieved by State action in wartime there was a good case for pursuing a similar policy in peace-time. Furthermore, during the war appeal had to be made to the good will of the working classes, and this made them more conscious than ever before of their power and importance to society. There was a widespread belief that the working classes would have their share of the economic prosperity which was expected to follow victory. It is not necessary here to trace the history of the economic disturbances which spread from the conquered debtor nations to the victor creditor nations. The glimpse which the working classes had during the war of something like economic equality had a profound effect on their minds and everywhere fired their imagination. Their disillusion was consequently the more bitter and found expression in increased industrial unrest. The socialist movement accordingly gained in strength. 24

Cf. T . H. Green, Principles of Political Obligation; Bosanquet, The Theory of the State; Hobhouse, Elements of Social Justice.

20

Philosophical

The Growth of Social Responsibility It is more difficult to describe the various ways in which the rise and fall of Fascism and Nazism affected liberal and socialist thought and policy. On the whole, it seems to me, the collapse of Nazism and the terrible events which accompanied it have tended to strengthen faith in democratic rule and in the ability of democracies to deal with their problems by organised effort without loss of fundamental liberties. It was realised that dictatorships arose only in countries which had had no prolonged experience of democratic methods and that the countries which had had such experience not only remained democratic but widened and deepened their democracy. Moreover, it came to be recognised that the failure of the Nazis and Fascists was due to inner weaknesses. Their methods of propaganda could not but stupefy and pauperise the minds of leaders and led alike and the policy they followed required for its fulfilment forces which were not at their command. Their boasts of efficiency did not in fact stand the test of war, which nevertheless they had brought upon themselves. There were, however, features of the National Socialist movements which gave rise to a very different interpretation. A study of the roots of National Socialism and the comparative ease with which it was propagated suggested that the liberal democratic countries were by no means safe from infection and that in certain circumstances they might be moving in the same direction. Hence a strong plea was made, especially by those who had had some firsthand experience of Nazism, for a return to something like nineteenth-century liberalism and the rejection of all forms of socialist planning, as certain to lead to what came to be described as " totalitarianism." The controversy which thus arose attracted a good deal of attention, but seems by now to have spent its force. Hardly anyone would now think it possible or desirable to reverse the movement whereby the State has during the last hundred years progressively assumed a vast range of functions closely affecting industry and commerce. It has to be remembered, as the members of the Liberal Industrial Inquiry pointed out in 1928 " that there has hardly been one of the forms of State action . . . proved by experience to have been beneficent, which was not hotly opposed at its inception as an unwarrantable invasion of individual liberty." 25 Whether any particular form of State action in the 25

Britain's

Industrial

Future,

XI.

21

Trends

of

Thought

economic field is desirable or not has to be decided in each case on the merits, and not by a reference to any supposed " inevitable " association between socialism and totalitarianism. In any case liberal socialism is by no means committed to unified State ownership and centralised management. As we have seen, this was clearly pointed out by Hobhouse and others in the twenties. Nowadays liberal socialists would lay even greater stress on the need to encourage diversity, to avoid bureaucratic over-centralisation and to diffuse power and responsibility over as wide a field as possible. That these aims permit of fulfilment within a socialist framework is the hope of liberal socialists in countries with a democratic tradition. There are signs that their importance is being slowly recognised as a result of bitter experience in some of the communist areas of the world. The influence of the Russian Revolution on opinion and policy in this country has not, so far as I know, been systematically examined as yet. It is easy to distinguish various phases—the benevolent interest early felt by many, the buoyant hopes and devoted enthusiasm it inspired later in some, despite what was known of the cruelty and ruthlessness of dictatorial rule, the disillusion of those whose god had failed them, the changes of outlook due to developments inside Russia, and more particularly in the satellite countries. These are not matters that lend themselves to summary statement, but there are certain issues arising out of them which, in conclusion, I should like to define briefly. In the first place, the widely held view that the peoples of the world are divided by fundamental differences in moral outlook calls for careful scrutiny and restatement. It would not be very difficult to show that the ethical assumptions of the Marxists about the ends or aims of life are not very different from those of humanitarian rationalism. But this agreement about ultimate values does not take us very far. In the communist view there are several distinct moralities, a universal morality, applicable only when class antagonisms have been transcended and interim, relative moralities appropriate to the class struggle. In practice what counts is a relative morality, which is the morality of enmity and war and in which the ordinary standards of morals are not only violated in practice but derided in theory. In this sense there is a deep cleavage between a humanitarian ethic, Christian or other, and 22

The Growth of Social Responsibility present-day communism. It is perhaps possible to argue that this cleavage, in so far as it has a theoretical basis, is due not to a divergence of view about ultimate values, but to a different interpretation of the facts. But in this, as in many other contexts, judgments of value and judgments of fact are confused, with the result that the ideals are corrupted and the facts distorted. It is true that practice and theory, the working code and the moral ideal are in varying measure far apart in all societies. But under communism the fissure is so deep and enduring as to endanger the elementary conditions of a free and full life and in Soviet Russia to render any tendencies there may be towards liberalisation from within highly precarious. In the second place, a distinction has to be drawn between problems inherent in large-scale organisation and technological advance and those more closely related to the political structure. What has been called the new industrial revolution has led to the emergence of economic structures which have broadly similar characteristics, irrespective of the type of political system—concentration of control, unified direction, a vast increase in clerical labour and in the number of technicians and administrators, aggregations of large masses of people in giant impersonal concerns, with everywhere much the same patterns of behaviour and relationships. In such structures there arise problems inherent in large-scale organisation as such—how to avoid over-bureaucratisation and administrative tyranny, how to reconcile control at the centre with the independence and powers of initiation of the smaller units local or other, without which the system would stagnate, and so forth. Such problems arise within all large organisations, whether they be trade unions, industrial enterprises or governments. But they assume a different character when political and economic power are concentrated in the same hands. It was the realisation of the dangers thus arising that led the Guild socialists before the Second World War to insist on the need of dividing sovereignty in order to curb the power of the State, and induced writers like Durkheim, in France, even earlier, to plead for the creation of active intermediary bodies to stand between the State and the mass of individuals. The liberal socialists showed their sense of the same dangers by their advocacy of forms of socialisation other than that of State ownership and management. The experience of totalitarian rule in 23

Trends

of

Thought

communist countries has, of course, brought out even more clearly the dangers of over-concentration, and the difficulties of meeting them when economic and political power are fused are now vividly illustrated by the efforts made in some of the satellite countries to allow more initiative to " the enterprise," to secure greater diffusion of power and responsibility through workers' councils, to slow down collectivisation and to come to the aid of smaller units not only in agriculture but in industry. Thus in capitalist and in some communist countries alike it is coming to be recognised that in given situations there may be too much or too little planning, too much or too little nationalisation, too much or too little collectivisation. There is no agreement as to who is to do the planning, or how the line is to be drawn between State control and State ownership, but it is seen that the answer to these questions must differ at different levels of social and economic development. What the State can and ought to do in countries with a highly differentiated social structure, an active public opinion capable of initiating movements for peaceful change and offering resistance to monopolistic powers, must obviously be very different from what the State can and ought to do in dealing with a population inert politically, and not sufficiently diversified to secure diffusion of power. The problem changes in character at different levels of development. While at some stages the use of State powers is needed to liberate the individual, at others it tends to become tyrannical unless held in check by other organised bodies within it. The individual may then have to be protected against these other bodies, for the division of powers may mean a multiplication of tyrannies. To the problems thus arising there is again no general answer, but they receive no illumination from the bare antithesis between individualism and collectivism. The rights of the individual have been won and can only be maintained by collective means including the power of the State. The important thing is to avoid giving too much power either to the State or to any other organised group within it. Finally, the spread of communism to non-industrialised portions of the world has brought into prominence the problem of what are now called the under-developed countries. The notion that the more advanced nations ought to aid these countries in their efforts to raise their standard of living and of the part that governments ought to play in carrying it out has long been gaining ground 24

The Growth of Social Responsibility among the so-called imperialist nations, but the explicit recognition of this duty, is perhaps, as has been said, " something new in history." 24 Accompanying the recognition of this duty by the more advanced is a great social awakening among the less advanced. Everywhere there is growing recognition of the urgent need for dealing with the poverty and distress in which more than half of mankind is still living, though there remain important differences of opinion as to the methods to be employed in dealing with this problem. There is a widely held view that the solution can only be found by encouraging industrialisation and the introduction of modern technological methods, and that these aims cannot be achieved without planning and direction by the governments concerned. Professor Myrdal has asserted that this view is accepted by experts and government representatives from advanced countries, whatever their attitude towards economic problems at home. But this may be an overstatement and clearly the answer must differ for different countries, depending upon, for example, the opportunities there may be for extending or intensifying primary production and for developing small-scale industries. The answer must depend also upon the educational level and, above all, the capabilities of the governments or administrations in question.27 This situation raises fresh problems in the theory and practice of democracy, especially of social democracy. In the under-developed countries the State may have to assume functions in the economic sphere which elsewhere are fulfilled by other bodies, and this may well encourage tendencies towards dictatorship. Experience in communist countries shows that the drive towards collectivisation, for example, was not due merely to doctrinal preferences but to the necessity of withholding a large part of the national income from consumption for capital formation, and the use of it for investment in the heavy industries in the interests of future higher consumption. Such measures cannot wait for popular consent and strong leaders may easily be tempted to act in advance of it. On the other hand, progress in under-developed areas depends upon widespread personal initiative and personal responsibility. Thus the 26 27

Myrdal, Economic Theory and Under-Developed Regions, p. 88. Cf. Myrdal, ibid., p. 80; Bauer and Yamey, The Economics of Countries-, W . Arthur Lewis, The Theory of Economic Growth.

25

Under-Developed

Trends of Thought central problem of democracy, namely, how to reconcile the requirements of large-scale organisation with freedom and efficiency, here reappears in a new form and is rendered more difficult by the eagerness to obtain quick results and, very often, by religious and racial strife. From the point of view of liberal socialism the problem thus raised is of special interest. Clearly the movement towards socialism in countries which have neither developed industries nor a tradition of parliamentary democracy must differ in character from socialist movements in western countries. If the initiative in this matter is not to be left to communist theorists, liberal socialists will have to work out for themselves how their theories are to be applied to countries at different levels of development.

26

THE

LEGACY

OF

PHILOSOPHICAL

RADICALISM M . J. P. PLAMENATZ

I SHALL speak only of the intellectual legacy. How have the Philosophical Radicals affected our ways of thinking about society and government? That is the question I want, if I can, to answer, briefly and in the broadest outline. Of course, we owe more to them than the answer to this question covers; for there was never a school of philosophers closer to the world of affairs, or who influenced it more in the way they wanted. Rousseau and the French philosophers brought the old social order into contempt and sometimes described their Utopias; but they never showed men how, taking the world as it was, they could refashion and improve it. Marx and Engels, sometimes with remarkable insight and sometimes perversely, unravelled present conflicts and predicted others in the future, but took care to be vague about the world as it would be when conflict at last ceased. How wonderfully reticent, how circumspect, these prophets of doom and glory can sometimes be! How unlike the Philosophical Radicals, who were never prophets and never tried to excite anyone, but were always very willing to commit themselves. They were the most practical among abstract political theorists. Living in what was then the most enterprising as well as the freest society in Europe, they could hope to exert a great influence without either flattery or intrigue. They stood, as I think no group of thinkers so abstract had ever stood before, at the elbows of an active and experienced ruling class, more open to suggestion than most, thrusting advice at them, stimulating and annoying, but never seeking to arouse passions against them. They were ruthless critics, incisive, untiring and open; but without the least trace of the demagogue. But it is not of their attitude to the powerful and of their practical achievements that I want to speak; it is of what they have contributed to social and political thought in England and the English-speaking world, to the methods and assumptions used to 27

Trends of Thought explain society, or to preserve or change it. The Philosophical Radicals, as no social theorists before them, were interested in the tools of their trade, in the vocabulary of politics; they were moralists of a new kind; and they also put forward arguments for democracy especially well adapted to modern conditions. It is these things about them that I want to discuss. The Philosophical Radicals were constandy preoccupied with the words they used; they wanted to be sure that the language they used was precisely adapted to their purposes, explanatory and prescriptive; and they distinguished, much more carefully than social theorists before them, explanation from exhortation and advice. If they were not the first to teach, they were at least the first to take to heart the lesson that we must not, in political and social discussion, so define the terms we use as to reach by inference from them the practical conclusions we happen to favour. They condemned what was, before their time, an almost universal practice among European political philosophers. Indeed, it was almost the mark of political philosophy, properly so-called, that it derived practical rules from the nature of man or society or law or right; that it so defined these terms as to make it follow that men ought to do this rather than that. This was as much the practice of Hobbes, Locke and Rousseau as of the medieval schoolmen. The Philosophical Radicals, Bentham first among them, did more than warn us against this practice; they tried to help us avoid it by constructing a precise and morally neutral political vocabulary. The warning, indeed, was given before they gave it, more clearly and forcefully, by Hume. Following Hume, they tried to set an example which we still think it right to follow, as much as we can, this side of pedantry. Sometimes, as certain lapses of Bentham prove, they did not take their own advice; but they were the first builders of an elaborate social theory who saw and preached the need to take it. At least in English-speaking countries, it is largely the Utilitarians who have taught us to be more quickly suspicious of suggestive or exciting or comforting words and phrases whose use in explaining our social behaviour is not clear. They did not condemn these words and phrases out of hand; they did not even say that we ought always to avoid using them when our purpose is to explain rather than to commend or warn; they merely invited 28

The Legacy of Philosophical

Radicalism

us to be sure what wc are doing when we use them. They knew that metaphors are useful even in the description of cold facts; that they enable us to speak more briefly and pointedly and to put less strain on the attention. Bentham, the harshest critic of traditional ideas and arguments, was often concerned to do much more than expose their vagueness or clumsiness or poverty; he also wanted to discover why they were used, what people were trying to say by means of them. His object in criticising them was not always, or even usually, to dismiss them as nonsense; it was much more often to show that they were misused, that the sense they were meant to convey could be differently and better put, with greater precision and in a way that did not suggest error. This interest in the use of words, this demand for rigour, economy and precision tempered by common sense, this understanding that what we need is not so much to avoid using metaphors as not to be led astray by them, this desire to get at the sense in other theories as well as to expose the nonsense in them; this combination of candour and severity seems to me a large and important part of our intellectual heritage. The Utilitarians were seldom sloppy, either in feeling or in thought. Compare, for a moment, the attitudes of Burke and Bentham to the ideas and arguments of the French revolutionaries. In Bentham you find all their assumptions and dogmas ruthlessly dissected; you find the myth of the social contract and the doctrine of the natural and inalienable rights of man clearly and firmly repudiated. In Burke you find an occasional half-hearted acceptance of the social contract and natural rights, of the myths and dogmas of the revolutionaries, together with an angry condemnation of everything they wanted to do. But Bentham does not condemn all their intentions, nor blame them for trying to change their country's institutions. The difference between him and Burke is that he knows, as Burke does not, exactly what he wants to accept or reject, as much in the theory as in the practice of the revolutionaries. He knows where he stands; he is cool and can discriminate. As much can be said of his attitude towards reformers of schools other than his own in England. He is at once a more devastating and a more generous critic than Burke; when he strikes at the theoretical foundations of popular radicalism, he cuts deeper because he understands what he is striking at. But he also shares, as Burke does not, some of the aspirations of the people 29

Trends

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Thought

whose theories he rejects. I am not trying to praise Bentham at Burke's expense, for I willingly admit that Burke had gifts of imagination that Bentham lacked; I am only trying to show some' of the advantages of systematic and rigorous thought. The powerful myths and dogmas that now stand in the way of clear thinking about social and political matters are quite different; they are the products of German Idealism and of Marxism. Large conclusions about what we ought to do are nowadays drawn, not from definitions of man and society, so much as from theories about the course of history. These theories have, I think, been both less attractive and less repulsive to intellectuals in the English-speaking world than elsewhere; they have had a powerful influence, and yet have never been swallowed whole by more than a few people. They have been received with greater scepticism and subjected to more rigorous and cooler analysis than in the countries of their origin. They have been assimilated slowly and only in part, and yet there have always been people willing to take them seriously. People willing to ask: How much truth is there to this doctrine? How must we rephrase it to make what truth there is stand out more clearly? Have we made sure that we are putting the right questions, that we know what we are asking, and how to set about trying to find an answer? It is, I suggest, largely the Philosophical Radicals who have taught us to take these now elementary precautions when we embark on political and social theory, either to criticise the views of others or to put forward our own. I am not suggesting that these precautions are not taken outside the English-speaking world, but only that the first to make a habit of taking them and to explain why they ought to be taken were the Utilitarians. Of concepts and theories, as much as of institutions, they asked: What is the use of them? Do they help us to understand our social environment? Or do they serve chiefly to condemn or praise it, to make people want to change or preserve it? At least they saw clearly, as many others have not seen, that the tasks of explanation and reform are separate. That is why, in spite of their many inadequacies, they excelled both as theorists and as reformers. Of course, they were inadequate. For all their coolness and candour, their desire to sift the sense from the nonsense in other 30

The Legacy of Philosophical Radicalism people's theories, they lacked imagination. They quite often failed to see what was valuable in the views they criticised. But their intention was nearly always to discriminate and reformulate rather than to repudiate or to condemn outright. The Philosophical Radicals rejected the doctrine of natural rights, the traditional conceptions of freedom and equality. But they were as much believers in equality and freedom as the upholders of the doctrine they rejected, though they conceived of them differently. They believed nothing more strongly than that it is for every man to make what he wants of his life, provided he respects the same right in others and does not refuse his share of the burden which society must lay on its members if it is to subsist. They believed in man's capacity to improve his condition indefinitely; they believed also that it is the duty of government to release man's energies. Yet, with them, belief in the autonomy of the individual was supported, not by the assertion of fundamental rights, but by a theory about the social origins and functions of morality. For them, all rules of conduct, and therefore all rights and duties, emerge to suit men's convenience; and the essence of man, what distinguishes him from all other animals, is that he is inventive and aspiring, always eager to improve his lot. It was Hume who first explained that we cannot infer how men should behave, their rights and their duties, from their " nature," whether we take that nature to be what men actually are, the qualities common or peculiar to their kind, or what they are potentially, what they have it in them to become or God desires they should be. Moral rules do not follow logically from statements of fact, and if they appear to do so, it is only because what are taken for mere statements of fact are moral rules disguised. But Hume, though he said this, also said, quite consistendy, that what rules come to be accepted by men are determined by their needs, their capacities and their environment. Because they have the appetites they do have, and can learn from experience, and because they live in a world where they have to work, and even to work together, to get the wherewithal to satisfy their appetites, men come to accept certain rules in their behaviour to one another and to react to those who obey or break these rules in ways that encourage obedience and discourage disobedience. The rules are therefore practical solutions to a practical problem: How can we all get what 31

Trends

of

Thought

we want the most commodiously and with the least friction? The rules have nothing to do with God's purposes for man or with any conception of a perfected human nature. The rules of morality are rules of efficiency, at least in origin. Hume, of course, did not say that what makes them moral rules is their being rules of efficiency: on the contrary, he held that what makes them moral is men's feeling about them as they do, their reacting as they do to persons who follow or break them. Yet the social function of the rules is to help people get what they want and to avoid what they are averse to more successfully than they otherwise could. Hume's main purpose was to explain what is involved in morality and how men come to be moral; he was not much concerned to tell them how they should behave. He took it for granted that the current rules, whatever they were, did perform their function. It is here that the Philosophical Radicals differed from him. Essentially, their theory of morals was much the same as his, though sometimes cruder and more confused. What made them radicals, while he remained a conservative, was their troubling to ask whether existing rules of conduct, moral and legal, really were rules of efficiency. The first rules came into existence, as Hume had explained, to serve all men's needs; but it did not follow that existing rules now served them. For circumstances change, and in organised society power is unequally distributed: the rules that now exist may serve some people's needs to the detriment of others. And so the Philosophical Radicals were not only moral theorists, venturing to explain what morality is; they were also moralists who wanted to tell their fellow-men what to do. They produced a master-rule of conduct, which they called the greatest happiness principle. They used this rule, not only to tell ordinary folk what to do, but above all to advise legislators and educators, the makers of rules and those who teach them. The position they took up was this: Let us consider the rules we have so as to make sure that they serve the prime purpose, the entirely human purpose, of all rules. Here at last was a social philosophy entirely free of theology and metaphysics; a worldly and yet active and aspiring philosophy. The master-rule of the Philosophical Radicals can be briefly put in the form: So act as to maximise happiness. Unfortunately, Bentham had some rather peculiar and difficult ideas about what 32

The Legacy of Philosophical Radicalism happiness is, ideas connected with the felicific calculus, which no one takes quite seriously any more, though some ingenious people have contrived to read more sense into it than others. There is, however, another rule that can be substituted for the greatest happiness principle, one that avoids most of the difficulties connected with it. Though this rule is not really the equivalent of the greatest happiness principle, we can put it in its place because Bentham was willing to do so. He took it for granted that men desire only pleasure and are averse only to pain, and that the strength of a desire or aversion always varies direcdy with the size or " lot" of pleasure or pain. This assumption, which is probably false, does at least enable us to conclude that, for Bentham and his disciples, the greatest happiness principle is equivalent to the rule : So act as to ensure, as far as you can, that everyone gets what he wants and avoids what he is averse to in accordance with his own preferences. Now this rule does make sense. And observe, it requires us to help people get what they want and not what we think is good for them. It is, at bottom, the rule that all liberals accept. Admittedly, they do not put it in quite this way. Their position is not exactly the same as Bentham's, as I shall try to show in a moment. But on a fundamental point, they do agree with him. Our duty to other people is not primarily to improve their characters or to make them fit more comfortably into this or that pattern of social life but to help them get (or at least not to prevent them getting) what they want out of life. We do not carry out this duty by accepting the social and political order as we find it, nor yet by making a list of men's fundamental rights and then contriving laws and procedures for their protection. To do our duty to others we must find out what they want, what their aspirations in fact are. We must consult their wishes and not our own ideas of what human nature essentially is or ought to be or what rights men possess in virtue of that nature. There is no destiny of man in whose service some men can rightfully control others; there are only the desires and preferences and ambitions that men actually have. This, of course, did not commit Bentham to saying that we must pass no judgments on men's wants or on their characters. They may want to oppress other people, or they may want incompatible things and suffer the pains of frustration. We ought to be 33 G.T.T.

3

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concerned, not only to prevent oppression, but to remove the desire to oppress: for instance, by so educating our children that they do not want to oppress. We ought also to enlighten them, and so help them to avoid frustration and wasted effort. To that extent, Bentham and the elder Mill would agree with the younger Mill that it matters, not only what men do, but what manner of men they are that do it. Yet for them it matters only for its consequences and not in itself. John Stuart Mill, when he said that it matters what men are like as much as what they do, departed from the creed of the older Philosophical Radicals; and the modern liberal would agree with him rather than them. Yet the practical consequences of the two creeds are much the same. For Mill and the modern liberal would agree with Bentham that it is not for other people to decide what manner of person a man should be. It is for him to try to live up to an ideal or pattern of life he has chosen for himself. The master-rule of Bentham still holds: So act that people, as far as possible, get what they want. This rule is by no means all that there is to the creed of the modern liberal, but it is an essential part of it. It is the rule which he thinks matters most in all our dealings with other adults, although there may be other rules as important to him in our dealings with ourselves or with children. I do not say that this rule cannot be found in any writer who lived and wrote before the Philosophical Radicals, or that everyone who now accepts it has got it, directly or indirectly, from them. All kinds of influences lead to the widespread acceptance of a fundamental moral rule. But it was the Philosophical Radicals who first put the rule forward, boldly and simply, as a moral rule free from traditional doctrines of natural law and natural right, doctrines as difficult to interpret as to apply. They extracted the rule from its metaphysical setting, and used it neither to justify society nor to condemn it wholesale, but to help make careful plans to reform it. No liberal today believes—or at least dares to say with Bentham —that pushpin is as good as poetry. The modern liberal has taken large notice of two ideas that were not widely current in Bentham's time; he has taken notice of them, though often without quite knowing what to make of them. He often speaks, as Bentham never did, of " self-fulfilment" or " self-realisation " and of the " well-balanced personality " which is not at odds with itself because 34

The Legacy of Philosophical Radicalism it has come to terms with society. These ideas go back at least as far as Rousseau, and no doubt (in rather different forms) much farther. They are difficult ideas. Unless we take care how we use them, we easily lapse into nonsense or else reach conclusions that every liberal must reject. Yet the modern liberal, though not quite at home with these ideas, feels that there is a great deal to them. He realises, as Bentham and James Mill did not, that a man's happiness does not consist in continual or frequent success in satisfying one desire after another but in his being able to live a kind of life that seems worth while to himself and respectable to his neighbours. He realises, much more fully than the Philosophical Radicals (though they did realise it to some extent), how deeply a man's desires and ambitions are determined by the moral and aesthetic standards of the communities and groups he belongs to; how, in terms of these standards, he builds up an image of himself as he thinks he is or would like to be; and how much his happiness depends upon his confidence that he really is as he would have himself be and is accepted by others more or less at his own valuation. The liberal is as apt to explain men's wants in terms of their morals as their morals in terms of their wants. In all this he differs greatly from the Philosophical Radical. Yet he can still, though he holds all these beliefs, accept their master-rule: So act as to enable people, as far as possible, to get what they want. And also the corollary of this rule: Never oblige them to do what does not conduce to this end; never oblige them to do something merely because you think they will be better persons for doing it. It may be objected that I have made the Philosophical Radicals out to be more liberal than they in fact were, and also that I have left out of account what liberals today think a good education should achieve. For they are concerned to do more than give children useful information and teach them so to behave that people get what they want as much as possible; they also want to prepare them to lead as good a life as they are capable of, making them better or more admirable persons in themselves. It is certainly true that the Philosophical Radicals were not liberals in the usual sense of the word. They delighted to speak of the duty to maximise happiness rather than of the right to live as one pleases. If it could have been proved to them that happiness could be more increased by interfering with people than by letting them 35

Trends of Thought alone, they would have been logically committed to accept the interference, no matter how great. True, their theoretical position is different from that of the liberal; for the liberal does not justify freedom as a means to happiness. But, as we have seen already, their account of desire and volition, mistaken though it was, did lead them to believe that happiness is in fact maximised by enabling people, as far as possible, to live as they please. They assumed that we must always begin by taking people's wants as we find them; or, to use the language of the economists, that the problem is always to fit supply to demand. It never occurred to them that it might be easier to get men to want what is easily provided than to provide what they actually want. If we can mould men's desires in such a way as to make it easier to satisfy them, why should we not do so? The Philosophical Radicals, to be logical, would have to say that we should. This, from the point of view of the liberal, is the Achilles' heel of their theory. It might, given the appropriate circumstances, justify the methods of Plato's guardians or of the Communists. The practical liberalism of the Philosophical Radicals rests on an assumption that does not necessarily always hold: that it is easier to give people what they want than to make them want what you can easily give. The true liberal need not make this assumption; his principles forbid our moulding other people to suit ourselves, even when it is easier to change their wants than to satisfy them as they are. However, we can scarcely blame the Philosophical Radicals for not having even noticed an assumption which was much nearer holding in their day than it is in ours when the arts of the propagandist and manipulator are so much more developed. And it may be that, if they had noticed it, they would have come to doubt the greatest happiness principle. I suspect that they were more liberal in feeling than in doctrine. Their bias was always towards letting people alone even when it was far from obvious that to do so would make them happier. Consider now the other objection, that the liberal believes that education ought to do more for children than give them useful information and teach them not to interfere with other people and to be helpful; that it ought to form their tastes and preferences as much to improve the quality of their own lives as to make them more tolerant and helpful to others. If the modern liberal believes 36

The Legacy of Philosophical Radicalism this, and surely he does believe it, he parts company with the Philosophical Radical. True, the liberal looks askance at attempts to form the tastes and preferences of grown-up persons; at adults setting themselves up as mentors to other adults. But he does so, surely, because adults arc set in their ways and their tastes, while children are malleable. It is no good thrusting poetry on a grown man who prefers pushpin; you risk annoying him or perhaps even shaming him into pretending that he likes what he does not like; and that is not your object. It is difficult and usually not worth while trying to change the characters and tastes of grown-up persons; the most that can usefully be done is to control their conduct to prevent their doing harm to others or themselves or to oblige them to carry out their duties as citizens. With children it is different; we can form their characters and their tastes, and we ought to do so, not only to make them happier, but also to improve the quality of their lives. True, the modern liberal differs here in principle from the Philosophical Radical; he cares for something more than happiness and satisfying actual wants, and he aims directly at getting it. Yet we must not exaggerate the difference even where it is greatest, even in the sphere of education. Though the liberal wants children taught to become more than successful pursuers of happiness, though he wants them to acquire worth-while tastes and ambitions, he looks upon this part of education as being more guidance than discipline. He wants the child to be taught to appreciate as much as he can of what society has to offer; he wants to extend the range of choice open to him; he wants to make sure that the child who has it in him to enjoy poetry and to prefer it to pushpin gets the chance of doing so. But he also insists that children are not to be forced against their natural inclinations; and that among adults, those whose characters, occupations or tastes are the most admired, those who look upon themselves and are generally admitted to be superior and more admirable, have no right to impose their preferences on others. Thus the moralities of the Philosophical Radical and the twentieth-century liberal, in spite of considerable differences in their basic assumptions, are in practice much alike. They exclude the setting up of an historic mission, of a duty supposed to be laid on a nation or class or party or élite by its place in history, or of 37

Trends of

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obligations to the State or any other community, above men's duties to one another simply as men pursuing whatever ends seem good to themselves. Philosophical Radicalism, like liberalism, excludes the double standard in morality. As Bentham put it in his Theory of Legislation,1 " That which is politically good cannot be morally bad, unless we suppose that the rules of arithmetic, true for large numbers, are false for small ones." In public life, as in private, we are always dealing only with men; and our prime duty to them is not to prevent them, and when we can, even to help them, live as they want to live according to their own notions of what makes a good life. Now, it might be asked, was this not also the position of Locke? Why, then, speak of it as part of the legacy of the Philosophical Radicals? Why speak as if we owed this belief more to them than to Locke? Far be it from me to be less generous to Locke than Bentham would have been. For Bentham liked to say that the great moralists of the past really agreed with him, though they might not appear to do so; that their opinions, as far as there was sense in them, were much the same as his. He fancied himself less as a discoverer than a liberator of true principles; less as putting them forward for the first time than as setting them loose from clinging error. We all subscribe, he thought, to the greatest happiness principle, though we too often also cherish other beliefs that prevent our getting happiness. I should not want to put it quite this way. Yet I do say for the Philosophical Radicals that they put their principles to much larger use than Locke did his. Though Locke condemned James II, he otherwise took society much as he found it; he was quite satisfied with the aristocratic England of his day, for all his belief that men are by nature free and equal. The doctrine of natural rights, in the hands of many of its advocates, was a bludgeon to be used occasionally against tyrants, whereas Bentham and his disciples used their doctrines as surgeons use their knives, to cut deeply and with a sure hand. Since the surgeon's knife and not the bludgeon was their weapon, they looked long and closely at what they wanted to operate on; they were intensely curious about the actual workings of society. i p. 14.

38

The Legacy of Philosophical Radicalism It is often said that the Philosophical Radicals were superficial, that they neglected history, that they had too simple ideas about why men behave as they do. Leslie Stephen accused them of setting up an artificial person, a standard or average man, and then using arguments that hold only if most men are like this person, which they very likely are not in societies different from those familiar to the Philosophical Radicals. Halevy said that their method was too deductive. These charges have some truth in them, but are often made when they are out of place. No doubt, the psychological theories of Bentham and James Mill were superficial: as when they tried to reduce the social affections to refined forms of egoism, or treated happiness as a sum of pleasures, or religion as an effect of fear and ignorance, or neglected patriotism and other group loyalties. They were perhaps not superficial by the standards of their own day, but by our standards their explanations are often inadequate. There is a great deal about man and society not dreamt of in their philosophy. Yet their practical rules, their rules for dealing with men, suffer much less from this inadequacy than is often supposed. If we want to control or influence other people's behaviour, it is important to distinguish, as Bentham would have us do, between men's motives and their intentions; and between the various consequences of an action, how it affects the doer of it, or the person or persons he means to affect by it, or other persons; and also between its immediate and remoter consequences. These rules of method hold no matter what people's motives or intentions, no matter how they come by them, no matter what their social circumstances. So, too, the rules of evidence and of debate must be largely the same in any society, if the object is to get at the truth without too much waste of time, or to reach decisions quickly after as full and relevant a discussion as time permits. These are technical rules of first-class importance, and the better we understand them, the more successfully we can adapt our institutions to our purposes. Democratic politics is the art of reaching decisions that are generally acceptable; and it was to this that the Philosophical Radicals, above all other political theorists, addressed their minds. Not to practise it themselves, but to discover general rules. Now, to elaborate and explain these rules, we do not need to be deep historians or psychologists; nor can we rely on mere common sense. W e must have a 39

Trends of Thought very uncommon capacity for clear thought and rigorous argument. W e must know just what assumptions we are making and what follows from them; we must be good at abstraction and deduction. Some of the most highly abstract of the arguments of the Philosophical Radicals are among the easiest to adapt to varying circumstances. Let me take for an example their argument for representative democracy and compare it with the argument of men like Tom Paine. The Utilitarian argument is not a whit less abstract than Paine's, and owes no more to history or psychology. It is not less abstract, but only more sensible and flexible. If you begin by asserting natural rights and saying that no government has the right to govern except with the consent of its subjects, you have either to conclude, as Paine did, that only democracy is rightful, or you are reduced to the shifts of Locke to try to prove that all men have consented even when it seems obvious that they have not. You have either to come to an absurd conclusion or to misuse language. But if, like the Philosophical Radicals, you say that the proper task of government is to promote men's interests, meaning by their interests what they want for themselves and not what you or the government or the wise or the virtuous think is good for them, you can perfectly well conclude that this or that people, in their own interest, ought not to have democracy; that if they do have it, they are less likely to get what they want than if they do not. You can make a genuine case for democracy and yet allow exceptions without contradicting the assumptions you start from or misusing words. You can say, as the Philosophical Radicals did say, that ideally the best way of ensuring that governments help their subjects to get what they want is to make them responsible to their subjects; for if they are not responsible, they will use their power to satisfy their own ambitions rather than to satisfy all ambitions generally. But your saying this does not commit you to saying that democracy or representative government is everywhere and always the best kind of government; nor even that it is so more often than not. For though people in general may know what they want for themselves better than other people know it, and therefore better than their rulers know it, it does not follow that they are good judges of what their rulers ought to do in order to enable them to get it, or that they know whom to choose for their rulers to help them get it. W e must distinguish, as the Philosophical 40

The Legacy of Philosophical

Radicalism

Radicals did, between knowing what you want, what kind of life you would like to lead, what amenities you want to enjoy, and knowing what can be done to help you get what you want, what policies are best suited to reconcile your interest with other people's, what institutions and methods are most effective, and who can be trusted to use them for the common good. The assumptions on which the Philosophical Radicals rest their argument for democracy do not oblige us to prescribe democracy for all peoples everywhere, and yet do allow us to assert every man's right to make the best of his life according to his own notions of what is good, provided that he respects the same right in others. The highly abstract but flexible argument of the Philosophical Radicals is better suited than the philosophy of Paine or Rousseau to be the creed of liberals and democrats who have sense enough to admit, what is indeed obvious, that there are many nations in the world not yet fit to govern themselves. If we accept Paine's argument, we must condemn governments for not ruling democratically, even where democracy is impossible; but if we accept Bentham's, we need only condemn them for not respecting the actual wants and preferences of their subjects, or for ruling them in ways that take them further from democracy than they were before. The Philosophical Radicals, in their explanations of society and of man as a social and moral creature, often fall far short of the truth. Also, they have almost nothing to tell us about that part of our lives which concerns only ourselves and the persons closest to us. Their abstract and practical philosophy is essentially, if I may so put it, commercial; it provides us with rules for our transactions with other people as competitors and collaborators for the satisfaction of needs; it deals with what is, in the widest sense of the word, the business side of life. What belongs to the inner life or the inner circle, what concerns all those relations between men that are much more than transactions, lies outside its sphere. But within that sphere, it has, as a practical philosophy, much to be said for it, even today; it is still alive, still relevant. The Philosophical Radicals were hard-headed and practical, not in spite of their love of abstract principles, precision of language, and rigorous argument, but very largely because of it. For the use of logic, even in the study of politics, is not to take us away from the facts, but to help us deal with them. 41

THE CONSERVATIVE TRADITION AND ITS REFORMULATIONS W . L . BURN

IT may be worth while to consider the hypothetical but by no means improbable figure of a staunch Conservative meditating on the election results in January 1906. He had anticipated defeat for his party but never a defeat so catastrophic as this. The agony of the moment has endowed him with power to see into the future. What he sees towards the end of that survey is no more alluring than the dismal present. Neither the monarchy nor the Church of England seeks or welcomes his partisan support; the Acts of 1918 and 1928 have virtually established universal adult suffrage; the hierarchical structure of society has been fatally damaged and government by deference has come to an end. With these guides it would not have been impossible for him to foresee much that has, in fact, happened in the intervening fifty-odd years; even though he might have been tempted to foresee, as well, a good deal that has not happened. He might well have foreseen the House of Lords deprived of its veto and reduced to the possession of a short suspensive power; the disestablishment of the Church of Wales; the complete independence of most of Ireland and of parts of what he knew as the British Empire; the scarcely challenged right of secession of those Dominions which remain in the Commonwealth; allegiance to the Crown no longer the essential symbol of imperial unity; taxation deliberately conceived in part for social rather than fiscal ends, penal in its incidence and allembracing in its range, adding a vast burden to life and an additional terror to death. Such a man, one can suppose, would have found particularly unattractive the idea of his grand-daughter going, completely unabashed, to draw an allowance for her second and subsequent children. Altogether he would have found if he had lived for another half-century, and can be credited with foreseeing in 1906, such a disintegration and proletarianisation of society as he understood it as to transform it into a mob, and such a weakening of the national will as to leave it purposeless and 42

The Conservative Tradition and Its Reformulations helpless. What one cannot credit him with foreseeing is a Conservative and " allied " vote of 13-7 millions against a Labour vote of 13-9 millions in 1951 and of 13-3 millions against 12-4 in 1955. It might be said, of course, that by 1951 or 1955 the Conservative Party, or Conservatism, had ceased to exist; that the votes were given to candidates or to a body masquerading under such names, attracting the woman who was tired of standing in queues and the man who had voted Labour in 1945 because he hoped thus to get a council house and voted Conservative in 1955 because he had not got one. The burden of such suggestions is that the party in question (though the criticism is levied from time to time against all parties) has abandoned its tradition in order to gain votes, has sold its soul for the sake of office. One would have more respect for this opinion if it were not a little jaded, if it or its like had not been heard so often before. It was urged with the utmost bitterness when Wellington and Peel decided in 1829 that Roman Catholics must be allowed to sit in Parliament. It was urged again, in the eighteen-fifties, after the protectionist wing of the Conservative Party had acquiesced in the abolition of agricultural protection. Anthony Trollope, brought up in a Tory household, became a Liberal and even contested an election in that interest. Some of the reasons which led him to do so may be surmised from a passage in one of his novels, The Bertrams, published in 1859. Writing there of a year about 1845, he observed sardonically: " At that time we had not thoroughly learnt by experience, as we now have, that no reform, no innovation—experience almost justifies us in saying, no revolution—stinks so foully in the nostrils of an English Tory as to be absolutely irreconcilable to him. When taken in the refreshing waters of office any such pill can be swallowed. This is now a fact recognised in politics and it is a great point in favour of that party that their powers of deglutition should be so recognised. Let the people want what they will—Jew senators, cheap corn, vote by ballot, no property qualifications or anything else, the Tories will carry it for them if the Whigs cannot. A poor Whig premier has none but the Liberals to back him, but a reforming Tory will be backed by all the world except those whom his own dishonesty will presumably have disgusted." 43

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Without the least difficulty one could find the same accusations of dishonesty and duplicity made at later dates; over the parliamentary reforms of 1867-68; over the establishment of the Irish Free State; over the more recent grant of independence to the Sudan and its consequences for the southern Sudanese. Sometimes a mild dose of historical fact is useful to abate feverish judgment. The utilitarians had been among the strongest exponents of parliamentary reform in the eighteen-twenties and thirties. It was a utilitarian of the next generation, Robert Lowe, who proved himself the foremost opponent of the next instalment of parliamentary reform but, again, within a very short time, when his views had been overridden, he was serving under Gladstone as Chancellor of the Exchequer. The most notable of Disraeli's critics in the same conflict had been Lord Salisbury, then Lord Cranborne, the author of that bitter article in the Quarterly Review of October 1867 on " T h e Conservative Surrender"; but he accepted office in the next Conservative ministry. Much of the legislation carried by Liberal governments between 1906 and 1914 would have been abhorrent to Gladstone; and one cannot be certain that Keir Hardie, if he were alive now, would be a welcome recruit to a Labour Cabinet. The maintenance of domestic peace can exact heavy sacrifices from individual consciences and the line which divides duplicity from magnanimity is not always clear. Sometimes, indeed, it is obscured by the magnanimity of those who have been foremost in accusations of duplicity. Although the article on " The Conservative Surrender " had described some of the writer's late colleagues as " showing a freedom from scruple surpassing all former example " it went on to add this: " It is the duty of every Englishman and of every English party to accept a political defeat cordially, and to lend their best endeavours to secure the success, or to neutralise the evils, of the principles to which they have been forced to succumb." We may have found here something which is fundamental to the Conservative tradition, but before we consider that possibility there is another point to be made. There have to be taken into account what the Prayer Book calls " the changes and chances of this mortal life," operating with a range which can confuse the individual mind and benumb the individual conscience. It would 44

The Conservative Tradition and Its

Reformulations

be fair to say that the England which Dicey surveyed in his Law and Opinion was an England at peace, economically prosperous, with a stable currency. In the fifty-eight years from 1901 to. the present this country has been engaged (counting the last year and a half of the South African War) in a major war for the whole or part of fourteen years. In addition to the years of active hostilities there have been those when war was deemed near or imminent, to be prepared for or averted by expensive rearmament. Those years it is scarcely possible to designate arithmetically since the subjective element in judgment is necessarily so strong; but if one put them at a score one could not be guilty of exaggeration. This is not to argue that the years of war or threatened war were revolutionary in the sense that they constituted the direct and sole cause of what, but for them, would never have come into existence. Even that stern economist Hicks Beach did not see the cost of the South African War in isolation. What disturbed him was the conclusion that the national willingness to spend lavishly on the war was only part of a national willingness to spend lavishly—by his standards— on anything. " There is no party or section of party " (he complained in introducing his budget in April 1901) " that is in favour of economy for economy's sake." 1 If super-tax had not been included in the budget proposals of 1909 to meet in part the increasing expenditure on naval construction it would probably have come in another budget, for other reasons. If a partial enfranchisement of women had not been enacted in 1918 it would almost certainly have been enacted before much longer. It may be that the fact or probability of major war merely accelerates the operation of factors already existing. But it is the acceleration which is important here; the explosion of a train of events, with vast and continuing consequences on national life, even though the train had been laid much earlier. Again, Dicey's England was one in which ideas could come slowly to their fruition, nurtured in country-houses not yet dependent on half-crowns from visitors and in universities not yet semi-nationalised institutions endeavouring to cram every possible 1

Lady Victoria Hicks Beach, The Life of Sir Michael Aldwyn, Vol. II, p. 138 (2 vols., London, 1932).

45

Uic\s

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St.

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student within their walls; suffering changes of emphasis and range, but neither the progeny nor the victims of economic catastrophe. That melancholy string of problems—unemployment, full employment, over-employment, deflation, inflation, the balance of payments (which even the most irresponsible of politicians have not been able to avoid noticing for the last forty years)—were not the problems to which Dicey directed his mind. At bottom he assumed an England (perhaps an upper middleclass England) which was in control of the situation; which would be able to take its time and gradually absorb or transmute or reject the ideas presented to it. Since his day there has been less time to spare; action has been taken, perhaps has had to be taken, without full consideration of its consequences and its implications. This has to be said, not exactly in defence but perhaps in mitigation of such changes in the tradition or policy of any political group as may otherwise seem merely time-serving, inexplicable save on the basis of the most material and cynical considerations. If one studies the activities of groups with far narrower objectives than a political party can possibly have it becomes clear how even those objectives and the methods used to attain them have changed from time to time.2 When one comes to deal with national parties one is tempted to ask, with Matthew Arnold: " . . . wherefore try, T o things by mortal course that live, A shadow durability, For which they were not meant, to give? " This is obviously a temptation which must be resisted here. But the warning is worth remembering; the more so because the tradition of a political party has a good many facets. As viewed by an opponent it presents a picture as depressing as one's passport photograph, something repellent or, at the best, the subject of apologetic and reluctant recognition. As viewed by those included in it, it has a decidedly more attractive appearance as the extension into national politics of the behaviour of a pleasant and homogeneous 2

To cite only one instance, Henry Carter's The English Temperance Movement (London, 1933) explains the several and sometimes incompatible objectives of temperance reformers, ranging from " partial abstinence " (abstinence from the use of spirits as distinct from Deer and wine) to statutory regulation or prohibition of the sale of all intoxicating liquors.

46

The Conservative

Tradition and Its

Reformulations

family group. To some, the Conservative tradition would be fittingly embodied in " hard-faced " businessmen entertaining each other on expense allowances: to others it echoes still with the romantic idealism of Young England. And occasionally the points of view are changed with embarrassing consequences. The parliamentary debates on the Television Bill in 1954 provided some amusing instances of this. In the debate in the House of Commons on March 25, 1954, for instance, arguments from the Conservative benches were tinged with a sentimental egalitarianism. " The question," said one Member, " i s whether we are seriously to maintain that a nation where we have National Service for our young people and where we have adult suffrage cannot trust the people to choose between one form of television service and another." But from Mr. Herbert Morrison came the lament that the Conservative Party was no longer a party of " aristocratic culture " : it was evidently a long time since Bagehot had written of " the finest brute-votes in Europe." Almost as entertaining as the efforts of anti-Conservatives to keep Conservatives within the bounds of a particular tradition are the efforts of Conservatives to forget those parts of their own tradition which have become unfashionable: at least it is difficult to remember reading much in the way of Conservative analysis or exposition of Conservatism as it existed in the days of its ten-year dominance between 1895 and 1905. There are two elements in or two characteristics of the Conservative tradition which appear to be worth special remark. The first is the claim that the Conservative Party is a national party. Obviously this is a claim which any party must make under a system of universal adult suffrage: it is not easy to conceive of a party explicitly seeking the favours of the electorate on the ground that it represents a narrow, sectional interest. Even so, this claim is very firmly established in the Conservative tradition. It was made by Disraeli in his Crystal Palace speech of 1872. " T h e Tory party, unless it is a national party, is nothing. It is not a confederacy of nobles, it is not a democratic multitude; it is a party formed from all the numerous classes in the realm—classes alike and equal before the law, but whose different conditions and different aims give vigour and variety to our national life." 47

Trends of

Thought

Eighty-five years later, at the Brighton conference in October 1957, Mr. Macleod said: " I f we are not a national party, representing both trade unionists and employers, we are nothing." If this were merely said in imitation of Disraeli it would still be enough to support the argument advanced. But it was surely much more than imitation; rather, the deliberate application to a contemporary problem of traditional language and a traditional way of thought. It is relevant in this connection to notice the number and length of the periods since 1901 when the Conservatives have formed part, and usually the predominant part, of a coalition. It would be technically correct to describe Balfour's ministry as a coalition. About the coalition ministries of 1915-16 and 1916-22 there can be no doubt. The exact moment at which the National government, formed in 1931, ceased to be " national " in more than name admits of argument which it is unnecessary to pursue here. Although the present government is supported by a few National Liberals and Liberal-Conservatives it would be pedantic to describe it as a coalition; but Sir Winston Churchill's government of 1940-45 was a coalition in a perfectly simple and satisfactory sense and his anxiety to extend its life after hostilities were over will not have been forgotten. The fact that the Conservative Party has formed part of so many coalitions makes it the more difficult to follow the track of the Conservative tradition, pure and undefiled. Can the Catering Wages Act of 1943, for example, be properly described as a Conservative measure? There is also the point to be made that to some Conservatives this anxiety to take part in coalition government was repellent. Readers of the late L. S. Amery's My Political Life will recollect his repeated fears that the Conservative Party should be led into or remain in a coalition constructed on the negative basis of anti-socialism.3 Even so, one would be justified in noticing a tendency (to put it no higher) on the part of the Conservatives to enter coalitions and the reluctance of some of them—as in 1922 —to leave them. Nor can this tendency be wholly explained by the existence of extreme " emergencies": the recurrence of a 3 e.g., Vol. II, pp. 226, 235 (3 vols., London, 1953-55)

48

The Conservative Tradition and Its

Reformulations

particular combination of symptoms in a patient may establish the diagnosis of a particular disease although each of the symptoms, in itself, is capable of some other explanation. At all events there is ground for considering the possibility that this tendency on the part of political Conservatism has a fairly close relation to the emphasis in the Conservative tradition on its " national" quality and range. And this emphasis, in its turn, may be due in part to the fact that the Conservative Party has a very long experience of the responsibilities and anxieties of office. It is equally arguable that the Labour Party, as its experience of office and of the chance of office has increased, is much more of a " national" party than it was as a minority in the twenties. The second major characteristic of the Conservative tradition is the importance deliberately given in it to non-political elements. One must necessarily read with some caution such expositions of political philosophy as occur in electioneering pamphlets but, with this warning, it is interesting to look at The Right Road for Britain, published by the Conservative and Unionist Central Office in 1949. " Conservatism proclaims the inability of purely materialist philosophies to read the riddle of life, and achieve the necessary subordination of scientific invention and economic progress to the needs of the human spirit. . . . Man is a spiritual creature adventuring on an immortal destiny, and science, politics and economics are good or bad so far as they help or hinder the individual soul on its eternal journey." The same theme has been urged by too many Conservative thinkers of eminence to allow us to dismiss it as merely propagandist. It would be easy to multiply quotations from Burke and more useful to note some more recent examples. Thus we have Lord Percy (Lord Eustace Percy as he was then) writing in 1935: " Conservatism finds the motive force of human progress, not in the compulsory authority of the State, but in the individual's conscience and sense of duty. It is the individual human heart that is shaken by the wind of the Spirit. Many of the greatest crimes and the greatest failures of history have been due to the attempt to realise the highest human ideals through political authority." 4 4

Quoted, R. J. White, The Conservative G.T.T.

49

Tradition,

pp. 32-33 (London, 1950). 4

Trends of

Thought

We have Mr. Kenneth Pickthorn beginning his booklet, Principles or Prejudice, with the statement that " politics do not really matter quite so much as is generally assumed in public discussion " and going on to remark that to most people immediate personal relations, to a few eternal values beyond this world and this life, are more important than politics.5 In The Case for Conservatism Lord Hailsham argued that " Conservatives do not believe that the political struggle is the most important thing in life " and asserted at the end of the same paragraph that " the man who puts politics first is not fit to be called a human being, let alone a Christian."' Finally, we have Mr. T. E. Utley saying, in the first of a series of articles published in the National Review in 1948, that: "The great dividing line in British politics has always been between those who regard politics as supremely important and those who conceive it to be the handmaid of religion, art, science and society. The Left are in the first category. Conservatives are in the second." 7 There may be some exaggeration here. Not all Conservatives, certainly not all Conservatives at all times, have been in the second category. Bonar Law was not, nor that redoubtable fighter, L. S. Amery; though the one had very few personal interests and recreations outside politics and the other very many. Still, this does not greatly affect the argument that part of the strength of Conservatism comes from its appeal (whether made deliberately or not) to non-political or even anti-political elements in society. This appeal was symbolised in the career of the late Earl Baldwin. Mr. G. M. Young quotes this tribute to him from an anonymous correspondent of The Times, writing at the end of the parliamentary session of 1925: " He has brought into public life a pleasant savour, freshness and health. It is the fragrance of the fields, the flavour of apple and hazel nut, all the unpretentious, simple, wholesome, homely but essential qualities, suggestions and traditions of England that Mr. Baldwin has substituted for the overcharged, heavy-laded, decadent atmosphere of our post-war days." 8 5 1 8

Signpost Booklets, p. 3 (London, 1943). Vol. 130, No. 781, p. 197 (March, 1948). Stanley Baldwin, p. 101 (London, 1952).

50

• pp. 10, 11 (Penguin Books, 1947).

The Conservative

Tradition and Its

Reformulations

The quotation, not forty years old, may seem incredibly " dated." Yet it is scarcely to be doubted that Baldwin made a contribution of capital, perhaps of vital, importance to British political life. That, however, is by no means the whole story. In the domestic field Baldwin was a highly accomplished, though not infallible, politician. Was he deliberately seeking to cloak his political ambitions in the more appealing trappings of the simple Englishman? Or was he essentially so much of the simple Englishman that he could make his appeal to his countrymen in no other way? The doubts cannot be resolved here but one thing is plain: so far as his success was the result of his ability to create an " atmosphere " conducive to national peace and unity it was necessarily limited in its range. Economic problems, still less international problems, could not be " solved " by the creation of an atmosphere. This is a special illustration of the point which Lord Percy made: " This dualism, this belief in a civitas dei distinct from the political State, is the essential strength of Toryism, but it is also the reason why its political action seems often to be so unsatisfying." 9 The Conservative, therefore, is placed in a position of peculiar difficulty. He may well be indifferent to much of the action of the political State, even hostile to political action generally. But his sense of responsibility to the nation as a whole makes it impossible for him to withdraw to an "ivory tower." In practice he deals with this difficulty empirically: unless his deepest feelings and convictions are challenged he puts up with a great deal that he dislikes and fears. If he is a Conservative of the hopeful kind he can comfort himself that the worst is over, that henceforth things will improve. If he is of a more sceptical turn he has the consoling reflection that things might have been much worse—and probably, after a breathing-space, will be. Naturally there have been occasions when the Conservative Party has acted in a more heroic and even in a desperate way. The supreme example of these is its policy towards Ulster. The speech which Bonar Law made in Belfast on April 9, 1912, has often been » R. J. White, op. at., p. 33. 51

Trends of

Thought

quoted but it is worth quoting again if only as a reminder of the intensity of a distant passion. " I say to you with all solemnity : you must trust to yourselves. Once again you hold the pass for the Empire. You are a besieged city. Does not the picture of the past, the glorious past with which you are so familiar, rise again before your eyes? The timid have left you, your Lundys have betrayed you, but you have closed your gates. The Government by their Parliament Act have erected a boom against you, a boom to cut you off from the help of the British people. You will burst that boom. The help will come and when the crisis is over men will say of you in words not unlike those used by Pitt ' You have saved yourselves by your exertions and you will save Europe by your example.' " 10 One did not need to be very old, in the England of 1912-14, to be aware of the dangerous tensions behind that irrecoverable façade. And there were other moments when the Conservative Party turned, as it were, to bay. Appealing to Anglican sentiment and acting through the House of Lords, it was strong enough to oblige the Liberals to abandon the anti-Anglican Education Bills of 1906 and 1908. But it is more to the point to remember those legislative measures which the Conservative Party, whether through the House of Lords or otherwise, could have stopped or seriously delayed; and did not. There was the Trade Disputes Act, 1906. Every year nowadays, almost every week, provides evidence of the vast significance of this measure and when it was under discussion it might well have seemed sufficiently offensive to many Liberals, as well as to most Conservatives, to merit challenging in force. But the Conservatives, under Balfour, did not contest its third reading in the Commons and it was passed without a division by the Lords. The progress of the Old Age Pensions Bill of 1908 was accelerated by the use of the closure but the opposition to it, as Halévy says, was feeble and timid and an amendment by the Lords which sought to limit its operation to a period of seven years was evidence of no more than a fear of coming down on one side or the other of a particularly difficult fence. The National Insurance Act of 1911 was subjected to a delaying amendment in the Commons but 10

Robert Blake, The Unknown

Prime Minister,

52

p. 129 (London, 1955).

The Conservative

Tradition and Its

Reformulations

passed its second reading in the Lords without a debate. The Act of 1912 which accepted the principle of a minimum wage for miners was virtually unchallenged by the Conservative opposition; although the fact that it did not settle a national minimum wage but allowed of district agreements may have made it somewhat more acceptable. By and large, the Conservatives accepted the social reforms of 1906-14 with notable ease; in contrast with their resolute opposition to certain constitutional reforms. It was not to be expected that they would oppose in principle or even seriously contest in detail those further social reforms which have more recendy come to constitute the so-called " Welfare State." One cannot avoid noticing, at this point, the charge that the guiding rule in Conservative policy was not tradition or principle but expediency. Expediency, of course, is the word one attaches to those acts of one's opponents which they describe as flexible. But the charge can be put thus: that the Conservative Party in the years 1906-14 showed itself willing to challenge the Liberals on issues such as those provided by education and licensing Bills, Ulster and tariff reform, where it would expect a considerable amount of working-class support or at least be in little danger of working-class hostility; but shrank from opposing legislation which was or was thought to be ardently desired by the mass of workingclass voters. Even the most fanatical Conservative could scarcely reject this charge absolutely. But it is equally difficult to accept it as providing a single, satisfactory explanation. The Conservative challenge extended to the Parliament Bill and although the attack on the powers of the Lords proved less popular than Liberal politicians imagined, the defence of those powers was not an obvious path to popularity with the electorate. On the other side, the National Insurance Act was not initially so popular with the working-class that Conservative opposition to it could not reasonably have been prolonged on grounds of expediency alone. But it is perhaps more to the point to remember that a certain bias in favour of action for the benefit of the working-class and its organisations already existed as one element in Conservative tradition. It does not follow that this bias had not itself come into existence from motives of expediency and it is easy to over-estimate the quality and even the amount of Tory support for Factory Acts and Tory opposition to 53

Trends of Thought the Poor Law (Amendment) Act of 1834. Nevertheless, the bias was there even before Disraeli's last ministry, whose legislation so much strengthened it. A Conservative who modified or abandoned his opposition to the Trade Disputes Bill of 1906 could recall the Conspiracy and Protection of Property Act and the Employers and Workmen Act of 1875 and console himself with the belief that his action was not inconsistent with Conservative tradition. At the same time he could justify his more obdurate opposition to Home Rule or at least to the inclusion of Ulster within the jurisdiction of an Irish parliament by arguing that such policies were not comprehensively acceptable to the nation at large. In other words, Conservatives who demanded of policy that it should be truly national could accept as proof of its attainment of such a standard the probability or the fact that it would be or was comprehensively acceptable. The consequence has been Conservative acquiescence in measures which have originally been those of other parties, even measures initiated in the face of violent Conservative protests. There are instances which could be quoted to the contrary, such as the denationalisation of the steel industry and the partial denationalisation of the transport industry; but they have to be set against Conservative acquiescence in the nationalisation of a larger number of industries. On balance the scales appear to come down decisively on the side of acquiescence. Although it was part of the Conservative programme in 1949 to restore the University constituencies and to hold elections in them immediately after their restoration, this proposal was abandoned when a Conservative government came into office. Mr. McKenzie's industry and acumen have recendy shown us how often such Conservative organisations as the National Union have pressed for a fundamental reform of the Second Chamber 1 1 : it is within our knowledge that no such reform has been undertaken by a Conservative government unless we are prepared to consider the Life Peerages Act, 1958, as the tentative beginning of such fundamental reform in the powers as well as in the composition of the House of Lords. And perhaps one does not need to go very far 11

R. T . McKenzie, British Political Parties, pp. 223-226 (London, 1955). There remains the question whether, at any given moment, a Conservative cabinet or the National Union has the better claim to be regarded as the representative of Conservative tradition. Neither has an exclusive claim, but, on the grounds of constitutional organisation and historical fact, the cabinet has the better.

54

The Conservative Tradition and Its Reformulations from the field of fact into that of speculation to be convinced that a referendum of Conservative voters would have rejected the Homicide Act of 1957. In any event, what has been notably lacking in the Conservative tradition is any large-scale and comprehensive attempt to put the constitutional clock back or to create a different kind of constitution, weighted in favour of the rights of property and the easier maintenance of the status quo. Such an attempt might logically have demanded the establishment of a " written " constitution with provision for judicial review of legislation. The nearest approach to it was the Conservative desire 12 to exclude certain " organic " matters from the scope of the Parliament Bill of 1911. This was not achieved and it can be taken that the attempt to achieve it—perhaps a sudden improvisation of policy rather than part of a tradition—has been abandoned. It is notable that a report drawn up by a strong group of Conservatives, inside and outside Parliament, and published in 1946 under the tide, Some Proposals for Constitutional Reform, began with the categorical statement: " We are agreed that the problems of government by which this country is faced today can be solved within the framework of the existing Constitution." It may be argued that this tradition of acquiescence has been violated in at least one major instance, by the passing in 1927 of the Trade Disputes and Trade Unions Act. On this Mr. G. M. Young has said: "With the laying of the Trade Disputes Bill, the Disraelian make-believe rolled away like a morning mist and revealed the Conservative Party armed and accoutred to keep the Unions in their places and arrest the growth of the Parliamentary Labour Party. The Conservatives were, in fact, determined to make a party triumph out of what, righdy viewed, was a national victory, and Baldwin put himself in their hands." 13 The extent to which the Conservative Party (or the government of the day) was thus " armed and accoutred" was, in fact, much 12

13

Embodied in Lord Lansdowne's amendment of July 4, 1911, to the effect that no Bill which affected the Crown or the Protestant succession, which made provision for Home Rule in Ireland or which raised " an issue of great gravity on which the judgment of the country has not been sufficiently ascertained " should become law " unless and until it has been submitted to, and approved by, the electors in a manner to be hereinafter provided by Act of Parliament." G. M. Young, op. at., pp. 124-125.

55

Trends

of

Thought

slighter than would be realised by anyone who had read Mr. Young's words but had not read the text of the Act. It is perfectly true that the Act substituted what is called " contracting-in " for the payment by trade unionists of the political levy for the more onerous process of contracting-out provided by the Trade Unions Act of 1913; and that it excluded from legalised picketing such picketing at or near a person's house or place of business as might intimidate him in the sense of creating in his mind a reasonable apprehension of injury to himself, his family, his property or his business. It is also true, however, that the Act did not deprive trade unions of the immense advantage they possessed in the immunity from actions for tort conferred upon them by section 4 of the Trade Disputes Act of 1906 except in so far as they might be engaged in an " illegal" strike; defined as having an object other than or in addition to the furtherance of a trade dispute within the industry concerned and as being " designed or cajculated to coerce the Government either directly or indirectly by inflicting hardship on the community." So far as such " illegal" strikes were concerned persons furthering them were made subject to the ordinary law of conspiracy, and picketing in the course of such strikes was deprived of the protection afforded to it, on certain conditions, by section 2 of the 1906 Act. It is to be observed, moreover, that the 1927 Act, being primarily directed against one rare species of strike, was not the occasion for any civil litigation during its existence and only afforded ground for one criminal conviction, subsequently upset on appeal.14 If, as Mr. Young suggests, it was the design of the Conservative Party " to keep the Unions in their places " the means they chose were not notably comprehensive or effective. If the party violated its tradition of acquiescence the violation was hardly extensive. But it is more important to remember that since its return to office in 1951 the Conservative Party has made no attempt to re-enact, with or without modifications, the 1927 Act or to interfere with the legal position and powers of trade unions. The refusal of successive Conservative governments to initiate legislation which could be construed as unfavourable to the trade union movement has provoked considerable criticism among rank-and-file Conservatives. The excesses or alleged excesses of pickets during the provincial " R. v. Tearsc [1945] K.B. 1.

56

The Conservative Tradition and Its

Reformulations

omnibus strike in the summer of 1957 appeared to be viewed, not perhaps with indifference but without deep concern, by the government; and requests by " back-bench " Conservatives for an inquiry into offences committed, convictions secured and punishments inflicted remained isolated and ineffectual. One would probably be justified in associating this apparent complacency on the part of the government towards public disorder not merely with an anxiety to court the support of trade unionists but also with another form of acquiescence—acceptance, to a marked degree, of the opinions of those penal reformers who seek a milder criminal law, more mildly administered, and eliminate retribution from among the ends of criminal justice. It was formerly part of the Conservative tradition that the Conservative Party was far excellence the party which regarded it as the first duty of a government to maintain law and order and that a Conservative government could be trusted to do so, even if it had to employ harsh methods. The current trends in criminal statistics provide no evidence of such ability on the part of a Conservative government: the speeches and writings of some of its members give an impression of them as waiting helplessly to be told by commissions and committees what they ought to do. More than any other party the Conservatives reflected, for good or bad, the instinctive impulse. Perhaps for this reason they have changed more quickly than any other party as they have grown more thoughtful and decorous, as their instincts have become atrophied. It may be prudent to return from these speculations to more concrete consequences of what has become the Conservative tradition of acquiescence. Mr. Pickthorn has given us this succinct and acceptable definition of a Conservative: " . . . a man who believes that in politics the onus of proof is on the proposer of change." 15 It follows that once a change has been accomplished such a man throws the onus of proof on the proposer of further change, whether that further change is an extension of what has already been done or a reversal of it. The vast social and technical developments of the last half-century, comparatively few of them direcdy willed or planned by politicians, have left a great deposit or accumulation 15

Principles or Prejudices, p. 5.

57

Trends of Thought of change which it has become the Conservative tradition to accept. What it accepts includes the subordination of the individual to the political State. To enunciate such a truism is merely to begin, not to conclude, the argument: Conservative tradition is not obliged to admit that such subordination must be in itself an evil. It is, of course, a danger since it may threaten the existence of those nonpolitical values which Conservatives traditionally prize. Even so, those values have never been immune from danger and never will be. To admit that is not to decry the need, in Conservative opinion, for their due protection. But how are they to be protected? There is no simple, single nostrum for universal application: at least for universal application by a party which claims to draw its support from all classes and to be especially conscious of its national responsibilities. Mr. R. A. Butler stated the problem when, in a speech in the House of Commons on October 31, 1957, he said that it was the duty of the government " to strike a just balance between the claims of the citizen and the community as a whole in an era in which the nation must be equipped with the resources of a fully competitive economy." 16 But to state a problem is only, at most, the first step towards its solution and a critic of contemporary Conservatism might think that a litde of the ability which it displays in stating problems could well be used in finding solutions to them. One such partial solution was propounded over forty years ago by Lord Hugh Cecil in his book on Conservatism (1912). " When, therefore, it is said that the State must act for the common good, that proposition must be subject to the reservation that State action must not in any case be immoral, and that to injure innocent people is immoral." 17 The essence of this solution is the enforcement on the State of the obligation to observe certain standards of conduct—standards which are still reasonably easy of description and definition. Even as between private persons they do not command obedience spontaneously: means have to be devised and sanctions applied to ensure obedience to them. Those means are supplied in large part and in the ultimate analysis by the courts of law. How far have 16

Parliamentary Debates (Commons), 1956-57, Vol. 575, cols. 401 et seq. « Quoted, R. J. White, op. cit., p. 85.

58

The Conservative Tradition and Its Reformulations these means been brought to bear, at the instance of Conservatism, upon the State? The answer must be, until recently very little. We are all aware of the vast legislative and quasi-judicial powers delegated to and possessed by Government Departments. It can scarcely be argued that, save in a context irreconcilable with Conservative tradition, those powers have been consistently exercised or perhaps could be exercised in such a way as to accord with Lord Hugh Cecil's criteria. This was a matter which called for examination and action by Conservatives. But no Conservative government took effective action to implement the report of the Committee on Ministers' Powers (the Donoughmore Committee) which reported in 1932 and although a little—a very little—was done by the Administration of Justice Act and the Limitations Act of 1933 to implement the report of the Crown Proceedings Committee of 1927 it was a Labour and not a Conservative government which initiated the Crown Proceedings Act of 1947. Lawyers of the older fashion still regard as the fatal defect of that Act the retention of the rule relating to discovery by the Crown; but no Conservative government has modified or abrogated it. The inquiry into the Crichel Down proceedings, though it may since have become part of the Conservative tradition, was forced upon the Conservative government of the day. It may well be that the root of the Conservative difficulty in defending non-political values lies in its reluctance to examine their implications. Let us consider shortly the question of private property. Is there, in the Conservative tradition as it exists today, any coherent theory, any studied and comprehensive defence, of the right of private property? There are partial defences and we can look at one of them, Lord Hailsham's in The Case for Conservatism. It is modest in length, only occupying six pages1* in a book of 314 pages. It repeats and accepts the conventional arguments in favour of private property but it makes two reservations : Conservatives do not defend every particular kind or sort of property; and there are cases " where the rights of private owners, although themselves perfectly legitimate, ought not to prevail against the public interest." Of two kinds of property recognised by the law is one to be regarded as the less defensible (and therefore 18

pp. 97-102.

59

Trends of

Thought

the more susceptible to attack) than the other? Is a fried-fish-andchip shop in Balham to secure a higher degree of protection than a kind of property which Lord Hailsham appears to find socially undesirable—ground-rents in Cardiff owned by a limited company in London (presumably a limited company with its registered office in London)? And who is to assess the nature and quality of the " public interest" which Lord Hailsham assumes ought to prevail against the legitimate, though compensated, interests of private owners? Is it a District Valuer? Is it the Lands Tribunal? And, indeed, on what scale ought compensation for the expropriation of private interests to be paid? To say 19 that " proper compensation should be paid " is, in effect, to say nothing. The difficulties in the way of being usefully precise were illustrated during the debate in the House of Commons on February 21, 1958, on the second reading of a private member's Bill, the Compensation (Acquisition and Planning) Bill, which was carried in spite of the lack of government support. It appeared from that debate 20 that Conservatives accepted as fully as did Labour members the principle that the interest of the individual should not be allowed to stand in the way of the interest of the community. What the Government did not accept, what no Conservative government since 1951 has accepted, was the principle that the individual interest is of so much importance to society that its owner ought to receive compensation at ordinary market rates for its destruction or for injuries which reduce its value. Yet the Conservative conscience is not insensitive to the claims of property. If it has no comprehensive defence to offer it has a partial substitute for it, embodied in the phrase, " a propertyowning democracy." We can turn to Lord Hailsham for an interpretation of this. " According to Conservatives, the aim of every man may legitimately include the possession of enough private property to own, if he so desires it, a house and garden, to bring up a family including the provision of a slighdy better education than the table d'hote afforded by the State, to indulge a reasonable hobby or leisure-time occupation and to end in his old age with a little more than the State pension, however generous." 21 20 1» p. 102. Parliamentary Debates {Commons), Vol. 582, cols. 1541 et sea. " Op. cit., p. 99.

60

The Conservative

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Reformulations

It is fair to say that Lord Hailsham does not explicidy describe more ambitious aims as illegitimate. It is perhaps not unfair to say that the Conservative ideal has become the man who is buying with the assistance of a building society or a local authority the house he lives in; who runs a car (perhaps secured by a hire-purchase agreement); who is able to send his son to a cheap public-school or at least to procure him extra tuition for the admission examination to a grammar school; who follows some inexpensive hobby; and who will not, when he retires, be wholly dependent on his old age pension. Few Conservatives would regard these modest aims as unworthy or decline to recognise their realisation as being within the Conservative tradition. But some might well question the degree of stability and permanence afforded by such an existence: very much at the mercy of changes in the bank-rate and the rate of interest on mortgages, or changes in purchase-tax, petrol duty and hire-purchase regulations; always at the mercy of schemes for compulsory acquisition and purchase. Lord Salisbury regarded it as the primary duty of Conservatism to give a sense of confidence: the degree of confidence possible in the conditions noted cannot be a very high one. It is sufficiendy clear that property has become far less important as part of the Conservative tradition than it formerly was. Almost entirely divorced from the exercise of political rights, it has come to be regarded as something in the nature of a cushion which will at least give its possessor a slightly better position than that of someone who is wholly dependent on the provisions made for him and his family by the State. A man so favoured, though he is unlikely to be able to do without the allowances, benefits and pensions offered to him by the State or its agents, will be able to supplement them. It is a temptation, at the end of such a survey as this, to enlarge upon recent developments, despite the danger of losing one's sense of proportion and of seeing as a turning-point what may in a few years appear to be no more than one of the sinuosities of politics. Even so, some of the legislative measures recently passed or now under discussion demand a brief notice. The Housing Repairs and Rents Act, 1954, and the Rent Act, 1957, represented attempts to make the ownership of house property economically viable. The Life Peerages Act, 1958, may or may not be the beginning of an 61

Trends of Thought effort to reform the powers as well as the composition of the House of Lords. In the Commons on October 31, and in the Lords on November 27, 1957, the Government announced its acceptance in principle of a considerable number of the recommendations made by the Franks Committee on Administrative Tribunals and Enquiries 2 2 ; and the County Agricultural Executive Committees have been deprived of the disciplinary powers conferred on them by Part II of the Agriculture Act, 1947. These developments, with the possible exception of the Rent Act, are modest; certainly not such as can properly be described as revolutionary. They do not justify the suggestion that Conservative policy has become reactionary (using that word in a neutral or even in a favourable sense). They scarcely justify the more moderate suggestion that Conservative policy has ceased to be fundamentally acquiescent. What they may represent is a consideration of the problems created by continued acquiescence. There had been built up by collectivist legislation a mass of new vested interests: the interest of the tenant of a privately owned house protected by the Rent Restriction Acts; the interest of the agricultural tenant largely protected against dispossession by his landlord and not ill-protected against increases of rent by the Agriculture Act, 1947. Indeed, it is significant that neither landowners nor tenant-farmers were enthusiastic about the removal of the disciplinary powers of the County Agricultural Executive Committees: many of them regarded the existence of these powers—especially as they became increasingly ineffective—as a cheap obligation to bear for the reward of guaranteed prices. It was open to the Government to continue the full protection afforded to such interests and to create new ones. This they have declined to do. Their action, though limited to a narrow range, perhaps justifies the suggestion that, although the Conservative tradition in the last half-century has been largely one of acquiescence, it still contains elements which allow of an occasional check to that process.

22

The Government did not, however, accept the recommendations of the Franks Committee regarding the appointment of members of Tribunals and of Inspectors. It proposed to keep these in the hands of the Ministers concerned, subject to consultation with tne new Council on Tribunals in the one case and the Lord Chancellor on the other.

62

THE LIBERAL OUTLOOK R . B . MCCALLUM

THE titles for these lectures credit philosophical radicalism with a legacy, Conservatism with a tradition and Liberalism with an outlook. I will accept the terms and will take the word outlook to cover the doctrine of the party, its achievements in office and also its social prejudices and sentiments. In this century the Liberals were in office for ten years as a party government, for six more years two Liberal statesmen were Prime Ministers and the party first in union then in schism shared in the government. In this period it exerted its greatest influence in the acts and words of its statesmen. In the period of decline Liberals still had eminent contributions to make but its greatest thinkers reached maturity during the epoch of Liberal ascendancy, Lord Keynes, Lord Beveridge and Gilbert Murray. In continental terms the Liberals were a party of the Left. If they were conscious of differences with their Socialist allies or rivals, their chief enemies were the Conservatives. Conservatives by using the term " the Radicals" in accents of hatred and contempt made it clear that they at least were in no doubt that there was an entity which may be called " the Left." Dicey, it may be noted, uses the word Radical with a capital throughout the introduction of Law and Opinion. The reverse of this is a remark by G. K. Chesterton that in politics he was a Liberal but he preferred to use the word radical " because he liked to see the snobs jump." Now it is not easy to distinguish purely Liberal influences from those which merged with Socialist thought. The work of the Webbs and other Fabian Socialists influenced Liberal thinking and British government in general. If we look at Liberal contributions we may single out three. There was the work of Lord Beveridge. Already in 1909 he makes his appearance in the minority report on the Poor Laws and his work culminated in his famous social insurance scheme during the 1939 War. There was also the body of publications put out by the Liberals after 1922 of which the Liberal plan to " conquer unemployment" was the most important. It failed to 63

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achieve electoral success in 1929 but its principles now seem to be generally accepted. Behind these schemes we know there was an economist of genius, John Maynard Keynes, who in his more professional writings revolutionised economic science. Keynes was also the author of the one great English political pamphlet of the century, The Economic Consequences of the Peace. Whether beneficent or malign, it set the mould of thought on the peace settlement for a generation. In the realm of imaginative writing the century opened with a preponderance on the radical side. Shaw was challenging all social prejudices with his satire. He was an avowed Fabian and must be regarded as purely Socialist, and his paradoxes offended the more orthodox Liberal minds. H. G. Wells, however, was more widely a prophet of progress arid his appeal to scientific improvement with its invincible meliorism appealed to Liberal optimism. Indeed, some of his Utopian visions, such as Men Like Gods, give one a curious feeling of living in the highest Liberal circles, with very rich Quakers, so commodious in their living, restrained in their art, humane in their sentiments. Arnold Bennett in his novels was the very epitome of middle-class class consciousness. Belloc and Chesterton with their brand of anti-plutocratic, catholic romanticism, provided an interesting variety, although at times it seemed to be more a critique of French than of English politics. On the Conservative side great names were few, Kipling surmounting all, a spirit and genius deeply odious to Liberals. Liberals controlled few newspapers, the Manchester Guardian under Scott stands out alone as a major influence. But writers like Lowes Dickinson, J. A. Spender, L. T . Hobhouse, J. A. Hobson and Gilbert Murray were guiding the thought of educated men. In spite of its very wide variety, Liberal thought had a certain coherence; it was a factor in the life of the nation. What elements bound it together? We may distinguish three. It had a historical tradition; it had a body of doctrine; it had a basis in social or class antagonism. The Liberal Party was descended from the Old Whig Party and can be traced back to the Long Parliament. Whatever qualifications we may have to make in considering the history of whiggery, the continuity never entirely broke. When it seemed dead after 1760 the American War revived it. The French Revolution shook 64

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Outloo\

but did not break it. After Waterloo it began its great work in the nineteenth century. It patronised minorities, Catholics, Dissenters, Jews. It broke the unreformed Parliament in 1832 and promoted later extensions of the suffrage bringing the less favoured classes " within the pale of the constitution." In 1912 the Liberals were still at work on a franchise Bill when the awkward question of women's suffrage brought it to a standstill. The Whig-Liberals never lost their grip on Locke's doctrine of consent which they opposed to the Tory doctrine of authority. They believed the breach with America to be a Tory failure, the grant of selfgovernment to Canada a Whig success. The Whigs also had cultivated a rationalistic approach to politics which was expressed in the Edinburgh Review. They became the critical pupils, the partial allies, of Benthamite and Millite utilitarians, but never whole-hearted disciples. By 1860 the old Whig strain coalesced with the Peelites and Manchester radicals to form the Liberal Party. New leaders came to the fore, the Quaker Bright, a strange bedfellow for Palmerstonian Whigs, and above all Gladstone. Gladstone, as the Hammonds have reminded us, could never be a typical Liberal. Where average Liberals lived on a modest diet of Locke, Adam Smith and Mill, Gladstone drew his inspiration from Homer, Augustine, Dante and many other sources. He could also be very narrow in his fierce High Anglicanism. (His non-conformist admirers would have been shocked to know that he had driven many miles from Balmoral to attend an episcopal service rather than worship by the Presbyterian rite in the drawing room of his Sovereign.) He could never represent the Liberal Party. It did not matter. By the end of his long life he had almost made the party in his own image. He broke it over Ireland but he also purified it. The Liberal unionist secession of arrogant Whigs and materialistic radicals left the Gladstonian influence the stronger. After completing the structure of free trade and attacking anomalies like the Irish Church and purchase of commissions, adopting the ballot, opening up the Civil Service, grappling with the social and economic problems of Irish land, Gladstone went on to defend not only classes but nations. From Italy and Bulgaria his gaze came nearer, on those who were oppressed by British power, the Boer republics and the people of Ireland. When the Liberal revival 65 G.T.T.

5

Trends of Thought came in 1906 it was the Gladstonian Campbell-Bannerman who was not only first in office but first in the hearts of his followers. T h i s zeal for small nations, crusade, fad or mania, gave a peculiar cast to Liberal thought. It made it contemptible to T o r y Imperialists and also to scientific Socialists who thought in terms of military or of economic mass. Liberal doctrine and tradition were always zealous for the rights of the individual. T h i s perhaps had relation to the Protestant conception of " the priesthood of all believers " and on the secular plane had been canonised by Mill's Essay on Liberty. Regimentation in religion, politics or thought was anathema to the Liberal mind. In economics this led to freedom from government control. All Liberals believed themselves to have read and learned A d a m Smith's Wealth of Nations. They would put a presumption against the clumsy hand of the State interfering in the production of wealth. Above all free trade in the form of free imports was an unchallengeable d o g m a ; to deny it the most execrable error. On the other hand, there was the problem of social reform, the " condition of the p e o p l e " question. T h i s was drawing the Liberals away from laissez faire. In one specific sphere they were prepared to interfere harshly, and that was in the sale of drink. In 1908 a Licensing Bill was defeated in the Lords, in 1909 spirit duties were greatly increased, in 1914 Scotland was given powers of local veto. All this was justified as a necessary remedy for a crying evil. It made many enemies, it was vastly unpopular, but it was pursued as an unavoidable destiny. But apart from this starding exception to laissez faire the Liberals were becoming the party of social reform and so of State action. They were sensitive, often reluctandy, to socialist pressure, the awful gap between great wealth and abject poverty weighed upon them. W a s it a part of Liberal doctrine that this gap must be narrowed? It is difficult to say. W h a t can be said is that it was by the acts of Liberal governments that the narrowing of the gap was begun. W e had had the Harcourt death duties in 1894, Asquith and Lloyd George introduced old-age pensions, differential and progressive income tax, supertax on higher incomes, heavier death duties still. T h e taxes on the unimproved increment of land in 1909 tended in the same direction. It was clear even then: the scaffold had been set up. In 1913 Dicey in the introduction to the 66

The Liberal

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second edition of Law and Opinion speaks of " the creed of a thoroughgoing English Democrat who looks as do most of our Radicals with some favour on socialism." 1 A Liberal writer, L. T. Hobhouse, in dealing with the problem of social justice observed: " Up to this point a thoroughly consistent individualism can work in harmony with Socialism, and it is this partial alliance which has in fact laid down the lines of later Liberal finance. The great Budget of 1909 had behind it the united forces of Socialist and Liberal opinion. . . . Thus individualism, when it grapples with the facts, is driven no small distance along Socialist lines." 2 But there were limits to Liberal collectivism, limits imposed by the political philosophy and the class structure of the party. They might socialise pragmatically but they would not impose fullblooded Socialism. They fully admitted the right of private property. If they sought to narrow the gap between great wealth and destitution, they hoped to do this partly by taxation and Stateaided insurance and partly by better distribution of private property. They had no faith in the socialisation of the means of production, distribution and exchange. It was never their aim to divide the economy into what we now call the public and private sector. They were the enemies of monopoly and this included the monopoly of the State. Nor did they believe that there would be any magic of incentive in working for a socialised industry. In this there was and is a clear division between Liberal and Socialist opinion. As individualists the Liberals were in a dilemma over trade unions, for these posed the problem of the individual versus a society within the State which might have an interest adverse to the public interest or the rights of the individual. Trade unions might have Liberal sympathy as organisations to improve the condition of the struggling poor. But unions had become centres of power which might well tyrannise over the few. There is not much of the aspect of the Tolpuddle Martyrs in the giant confederations of modern trade unionism. When the Tafi Vale judgment of 1901 had weakened the power of unions to use strike action, Campbell-Bannerman boldly grasped the nettle. He accepted the proposals which found eifect in the Trades Disputes Act of 1906 to the dismay of some of his legal colleagues. Unions were to be 1 2

A. V. Dicey, Law and Opinion in England, p. 72. L. T . Hobhouse, Liberalism, p. 99.

67

Trends of Thought free from actions for the torts of their members. Jurists were horrified, Dicey not the least of them, and have been uneasy ever since. Liberals have never been quiet in their mind either. It is of the essence of their creed that the intimidation of worker over worker is not to be excused any more than any other form of social bullying. The problem of unions in relation to the community and to the individual remains today the greatest unsolved domestic, social and political problem of our epoch. I have said that the Liberal Party had a basis in social and class antagonism. We must go further than ask what were its doctrines and principles, we must ask of whom it was composed and what were their ruling sentiments and passions? Graham Wallas has taught us to think in these dimensions and no one lecturing in this school of all places should fail to neglect his lessons. Liberals have often boasted that they were not a class party. Certainly they never accepted the idea that there was any fatal gulf in British society. They had never much liked Disraeli's two nations; they abhorred Marx's notion of the conflict of bourgeoisie and proletariat. At times, as in 1885 and 1909, they could come near to waging a class war but with certain restraints. A crisis like the general strike of 1926 would see them, in general, on the side of social order. They refused to be the cannon fodder of any social war. What then was their class basis? Any schoolboy will tell you. The Liberals were the party of the middle class. The backbone of the party came from what Adam Smith judiciously called " the middling rank in society." And we must remember that the Socialist concept of two classes and two only was not then accepted, because it was not true. The Liberals were accustomed to receive the support, up to 1910, of the industrial workers and in some parts, Scotland and Wales, of the rural workers also. But these voters were regarded rather as clients and followers and were allowed litde say in the choice of candidates for Parliament. From 1906 the danger of Socialist revolt was evident, but up to 1914 the Liberals were more afraid of losing their grip on what they called the " thinking working m a n " who might be swamped by the numerous unthinking working men, men who wanted a large navy, hated Kruger or the Kaiser, disliked truckling to Irish, Indians or any other rebels or foreigners. But already the Liberals had lost control over large sections of 68

The Liberal

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the middle class. For decades past the City of London had been Conservative; the electorate of the Scottish Universities were Unionist. In London and the South the middle classes were preponderandy Tory and the large cities were prone to breed a wealthy bourgeoisie who would have upper class and Tory ideas while the working men of the big cities seemed easily seduced by Jingoism. In Wales, the West Riding and Scotland, the middle class ethos held more firmly. It was purest in the smaller industrial towns, places like Huddersfield, Hanley, Rochdale or Paisley, where you could go for days on end without setting eyes on a gentleman. But a man is only as middle class as he wants to be. The magnetic pull of " Society " was strong, it was felt amongst the landed gentry, the services, the professions. There Liberals were a minority, sometimes wretchedly small. To resist this they might affect proletarian postures, as in Lloyd George's famous remark, " I am practically a poor man." Or they would move in their patrician environment, whether native or acquired, and armour themselves with the conviction, not usually hidden, of their moral and intellectual superiority. Asquith and Keynes might be examples of this, for even in places of such intellectual refinement as Balliol and King's Liberals would be among the few and not the many. This may explain the extraordinary irritation and dislike with which such men were regarded. What was this superiority? Did it exist? I would answer, yes. Liberal intellectuals in that age had a remarkable preponderance. Milner and Balfour excepted, it is difficult to find equals on the other side. Their moral superiority may be more disputable but they believed that they had it; they felt their humane and liberal ideas were morally superior to the crude chauvinism of their opponents. The Liberals were an anti-aristocratic party but not an anti-plutocratic party. It contained rich men and was dependent on their support. It is a common saying that of all aristocracies the worst is that of wealth. One suspects that this idea flourishes most amongst impoverished patricians; Napoleon, who spoke in these terms, would be a good example. But the Liberal mentality was inclined to respect new and self-made wealth, and in general burgher wealth has no bad record in history—Venice, Florence, Amsterdam, Detroit and Oxford (town). The Liberal animus was directed against the aristocracy of birth and rank. When Lloyd George wanted to put fire into the belly of the party 69

Trends of Thought he went for the Dukes. It was directed against the whole amalgam of upper-class society in Britain, rank, land, Church, services and varsity. It is difficult now when English aristocracy is so etiolated in wealth and spirit, to realise how vigorous and confident, how arrogant and even cruel it could be. Liberals felt themselves to be the object of its resentment; they suffered from its arrogant pretensions. In their mythology the type of the tyrant was the squire and blue blood was bad blood. The anti-aristocratic bias of the Liberals influenced their views about the Empire, peace and war, and the armed forces. While the Navy was recognised as essential and less politically significant, the Army seemed to exist as an appurtenance of upper-class domination. It seemed to be external to the proper life of the nation. This anti-militarism of the Liberals was often not fully conscious and was often expressed in high ethical or economic arguments. But it strengthened their hostility to armaments and warlike preparations. They voted money for the services but under pressure from the public. The drive to build up the dreadnought navy came from outside the party. Compulsory service was unthinkable. The Conservatives shrank from it out of political prudence; their hearts were very much with Lord Roberts in his plea for national service. On this issue British Liberals were very insular. They objected to conscription not only on moral and social grounds, but also because it was undemocratic. But compulsory service had been used by the French and American Republics and it was freely accepted by many constitutional democratic countries in Europe and democratic Australia was adopting it. It had the merit of fairness and ministered to the canon of equality. But of the various elements that make up democratic sentiment Liberals were influenced least by the notion of mere equality. Mill had considered it as a possible obstacle to representative government. Between equality and liberty Liberals would always choose liberty. They could not or would not envisage a struggle so dire as to call for all the manhood of the nation. In military service they saw the hard hand of the State in the form of the recruiting sergeant, the young man haled away from his home, his work, his chapel and bound to a brutalising life. It was a wrong use of State power. Liberal resistance to conscription was strong and constant. In 1916, when it was imposed, the war had lasted for nearly two years and 70

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the terrible Battle of the Somme was about to begin. The introduction of conscription in the spring of 1939 still found the Liberals protesting. A postscript may be added to this. Whatever may be thought about a British ultimatum to Egypt over Suez in 1956, it does appear that the public in general did not reprobate the Government's warlike act as might have been expected. The absence of pacific and anti-military fervour took the Left by surprise. It may be said that the Government's case was good, but this hardly explains the phenomenon. May it not be that the people of this country have a new outlook on the armed forces? Six years of desperate war on the verge of defeat has given rise to a new outlook on military forces. Moreover, the army had been " democratised," the channel of promotion made easier, the whole social system made looser. And for ten years afterwards the manhood of the nation has been put through the services, all starting from the ranks. Thus the services have become part and parcel of the nation's life as never before, at any rate since the days of Henry V. It may be that the furious pacifism and anti-militarism of the inter-war years had in it more than was admitted of class antagonism. We must not, however, think of the Liberals in the early days of the century as being irresponsible in matters of defence. There is here an apparent contradiction. The Liberals under Gladstone and Cardwell had carried out the main army reforms of the last century. Later they could produce able Service Ministers, Haldane at the War Office and McKenna and Churchill at the Admiralty. Sir Robert Ensor in his Oxford History has stated: " Many charges can be brought against the Asquith Cabinet of 1908 but not that of war unpreparedness." 3 Sir Almeric Fitzroy, Clerk of the Council, has recorded in his diary for August 1914: " When in times past confusion, uncertainty and hesitation prevailed, the collective machine has worked with amazing celerity, precision and completeness." 4 In its more upper-class and whiggish circles the Liberal Party took the question of defence seriously. Its leaders were more free from the pressure of traditional service ideas and vested interests. Liberal First Lords supported Admiral Fisher in his sweeping reforms when orthodox service pressure, under George V 3 4

R. C. K. Ensor, Oxford History of England 1870-1914, p. 526. Sir Almeric Fitzroy, Memoirs, p. 560, under the date August 6, 1914.

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favoured even by the throne, might have defeated him. When the forces were mobilised in 1914, twenty-four Liberal M.P.s were called to the colours. But there were seventy-five Unionists. What the Liberals did do for defence was done only after agonising disputes and with the reluctance of most and the positive disapproval of many. In 1918 the nation remembered this and no quarter was given to Liberals who were not protected by alliance with the patriotic Tory Party. The divorce between the aristocratic army and the civilian Liberal Ministry led to the greatest internal political failure of any British government in this century, the failure to deal with the threatened armed resistance of Ulster in 1914. It may be that the Ulster cause was so generally popular that no government could have succeeded, but it is to the discredit of the Liberals that they were so much taken by surprise and so little prepared with any plan for the event. It was not in their nature to understand the violence which their policies in Ireland aroused. The upper-class English Tory was a high-spirited person with no mealy-mouthed ideas. T o them violent resistance was not only legitimate, it was almost welcome. The noble Duke who wanted to see Lloyd George in a pack of hounds was uttering no bookish metaphor; he was seeing a picture. The Liberals never fully measured the violence of their opponents. This was true also in foreign policy where they were too apt to impute good intentions and to discount belligerency. The party of reason, of moderation, of peace and conciliation was continually surprised by the violence of their fellow creatures. Keynes has a reference to this in the memoir about his early beliefs in which he says that his generation failed to take account of the forces represented in the thought of Marx and of Freud. He might have added that they had forgotten the Bible.5 If Liberals disliked armaments they also disliked the concept of Empire. Here there was diversity and confusion of thought which at one time seemed likely to split the party. There was always a school of Liberal Imperialists and it contained many of the ablest 5

. Keynes, Two Memoirs, p. 100. " A s a cause and consequence of our general state of mind we completely misunderstood human nature including our own. The rationality which we attributed to it led to a superficiality not only of judgment but of feeling. It was not only that intellectually we were pre-Freudian, but we had lost something which our predecessors had without replacing i t . " On Marxism see p. 97.

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The Liberal Outloo\ men. But Liberal Imperialists always had something of a critical and concessive attitude to the idea of Empire. They were never full-blooded imperialists like Milner, Chamberlain or Amery, still less like Rhodes or Jameson. In fact Liberal Imperialism is a contradiction in terms. For an Empire to be strong and lasting there should be no heart-searchings about its legitimacy. As responsible statesmen Liberals could not throw away the Empire, least of all at a time when anything abandoned would be occupied not by " the natives " but by rival powers. But Liberal thought prevented any firm resistance to demands for self-government. Gladstone had quoted Augustine's famous words, " remota itaque justitia quid sunt regna nisi magna latrocinia," and this feeling that there was guilt in dominion went very deep. Already the Liberals in 1906 had given self-government to South Africa; they were pledged to give it to Ireland. The Morley-Minto Reforms and later the Montagu-Chelmsford Reforms in India were Liberal movements which caused much dismay in Unionist circles. The process of demobilising the Empire had begun. If the Second World War made the pace almost catastrophic, the logic of Liberal thought had made it inevitable. If one half of the nation doubted in its conscience whether dominion was justified, except in special cases and for limited periods, then the game was up. After 1918, while Liberalism as an organised force declined, Liberal ideas gained a wider acceptance. They spread within the Conservative Party more as defeatism than as conviction. When Socialism came to effective power the Liberal ideas had been well assimilated. From the furious intransigence of the old I.L.P. the Socialists moved to a more pragmatic view of the responsibilities of Empire. If they talked a slightly different dialect and spoke of exploitation when the Liberals used the old-fashioned word oppression, there was no difference of principle. This movement of the Left culminated in 1947 when the British Raj in India came to an end peacefully so far as the relations of British with Hindu and Moslem India were concerned.6 Another triumph of the Liberal philosophy was found in the 6

In a foreword to a recently published book, B. J. Gould, The Jewel in the Lotus, Sir Ernest Barker writes, " A liberal cannot love or condone autocracy per se; but he can understand, and even applaud, an autocracy which is seeking to transcend itself, to get rid of itself, and to prepare the way for a system of selfgovernment that will take its place."

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Treaty of Versailles, although Liberals were so much impressed, there are those who would say unhinged, by Keynes' attack on the settlement. Whatever may be thought about reparations, war-guilt and the new frontiers, the Treaty was a Liberal document in that it comprised the Covenant of the League of Nations, which crowned all Liberal dreams and aspirations for the better ordering of international affairs. This was not purely a party matter, for the Lloyd George government which carried the Treaty was two-thirds Conservative, and Lord Robert Cecil, its strongest advocate in this country, was a Conservative. But the moral pressure for such an instrument was characteristically Liberal. Its leading expositor was Woodrow Wilson, a statesman self-consciously and doctrinally Liberal. It was tepidly accepted by the Conservatives but their general attitude to Wilson and " his league " was unfriendly and contemptuous. Back benchers were not afraid to express their scorn and we know from published diaries and letters of the hostility of service leaders like Lord Haig and Lord Beatty. With the League went the provision for the mandate system for conquered enemy colonial territories. It would have seemed grotesque a few years previously to suggest that a war which ended with the total military collapse of Germany would not have added formally one square foot of territory to the British Empire. Even if the mandate system be attacked as evasive and hypocritical, it was so far removed from what the average imperialist would have regarded as the fruits of victory that it must be put down as a success for the Liberal mentality. After the Second World War another organisation for peace was created in the United Nations. It was taken as a matter of course: only the details were disputable. I have dealt at length with the Liberal outlook on arms, Empire and international affairs because in this century these questions have been predominant. The nineteenth century was a relatively peaceful period. Wars there were, severe but short, and never general. Problems of law and opinion were concerned most with internal matters. Dicey in his book has three references to the American Civil War, one to the South African War and none under Admiralty, Army, conscription, compulsory service or Navy. Mill's Representative Government is devoid of any attempt to treat the problems of popular control and the armed forces. The twentieth century has been a period of long wars, general 74

The Liberal Outloo\ wars, involving most of the world and also revolutions cruel and desperate, astounding even pessimistic observers. By the middle of the century the world was facing the apocalyptic terrors of the atom bomb. It is no wonder that the political philosophies of all parties were unprepared for what has happened. It may be said in very general terms that if the Left has been forced against its will to think of wars and threats of wars the Right has been forced to think of social revolutions and threats of revolution. Peace, retrenchment and reform were once the Liberal slogans. There has been little peace, no retrenchment. What of reform? Of that there has been much and much of it inspired by Liberal ideas and carried out by Liberal statesmen. We have seen that the primary moves to what we now call the Welfare State were made by the Liberal Government in the first years of the century. The budget of 1909 and the Insurance Act of 1911 are the outstanding landmarks. They are so far removed from the old Liberal individualism that they may be called social democracy rather than pure liberalism. Yet it was the task of the Liberals to fuse the two conceptions of individual right and social benefit. If redistribution of wealth has gone further than apprehended by Conservatives, the social system has survived with its traditional institutions in a way that would have astounded the original zealots of social revolution. Lord Halsbury and Keir Hardie would be equally amazed at the spectacle which British society and politics now present. If Liberals have done much to promote and hasten these changes, it must be admitted that the pace has been quicker than was intended. The necessities of war have caused this. The most advanced radical in the party in 1913 was not dreaming of income tax at five shillings in the pound nor was he in 1936 thinking of nine shillings and a surtax which all but extinguished the greater incomes. War alone compelled it. It might be said that in paying so highly for war the rich were merely insuring against defeat. Yet it would seem that in our age defeat in war does not mean economic ruin—France, Germany and Japan have risen from defeat into prosperity. But the wealthier tax-payers of England who have suffered so much from the wars thought little of their economic advantage. Their reward was moral and psychic, the satisfaction of not being conquered, of not seeing the German flag flying from the Tower of London and German guns installed on the cliffs of Dover. It is worthy of note 75

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that in all the futuristic novels which have been written in this country almost none deal with life in a conquered England. (Saki's When William Came is an exception.) In the realm of political and constitutional reform there is much to show. The biggest event was the Parliament Act of 1911 which ended the veto of the House of Lords. The two elections which preceded this were perhaps the only occasions on which the country was asked the question: " Do you really want to be a democracy? " It was asked not of all the people but of the electorate of the day, male only and on household and not adult suffrage. The answer was given decisively enough for practical purposes but the majority in favour came from Scotiand, Wales and Ireland; the English electorate was slightly against the Liberals in 1910. The other steps to full democracy followed painlessly and easily under the democratic impulsion of war. In 1918 adult suffrage and partial women's suffrage, in 1928 full women's suffrage, in 1948 the last stage to one man one vote was taken by the abolition of double voting and University seats. One social reform is so important that it should be singled out. From 1920 onwards the provision of housing for the poorer part of the population became a government task and was supported by public revenue from general taxation. Of all social reforms this is the most profound and the most striking interference by the State in directing individual wealth to a public and, it is supposed, beneficent end. All parties have participated in it but the originator was a Liberal Prime Minister, Lloyd George, supported by a Liberal Minister of Health, Dr. Addison. Lloyd George has suffered much ignominy for his slogans about " homes fit for heroes " and how you cannot have A.l men in a C.3 nation. In the derision with which it has long been fashionable to treat Lloyd George's more flamboyant statements one thing has often been forgotten. The pledge was honoured, the great development begun, the whole standard and quality of housing for the people raised. This was the clearest and simplest recognition of the fact that where laissez faire failed to provide some essential social benefit the State must be called in. In it the empirical social democratic liberalism which arose in 1906 had its greatest social triumph. But it was a Liberal policy in that it left the alternative means of getting houses 76

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intact; private ownership was not only permitted but encouraged. The ever-growing assets of the building societies testify to this. In the realm of government and administration it cannot be said that Liberal thought had any special contribution to make. The Haldane report of the machinery of government is a fine document but presaged no radical change. The civil service, very much a Liberal creation, expanded successfully to meet its new burdens. The War Cabinet and other central government changes were the result of need and experiment rather than of any philosophy. The procedure of the House of Commons developed along traditional lines. Local government under the strait-jacket of the ultra vires rule and the Corporations Act of 1835 showed a dismal lack of inventive power. It cannot be said that Liberals assisted much except for a plea for proportional representation, a measure which in the days of their power they had neglected to promote. Graham Wallas has told us that political inventions are extremely rare events. It might be unreasonable to expect Liberal thought to have contributed much. The English claim, wrongly, to have invented parliaments; they may claim with reason to have invented parliamentary government. One sometimes feels that with this great achievement the political inventiveness of the English has been exhausted. The greatness of this achievement seems to have bred complacency and a reluctance to learn from other countries. Comparative government remains an academic study of little practical application. It may be that having passed through an age in which Liberals and others in this country could set up as universal schoolmasters they are unable to take the position of pupils. It might be said that there has been one great invention by this country in politics and that is the British Commonwealth of Nations. Certainly it has no predecessor; it may have no successor; it may prove to be a aira£ Xeyo/nevov in world history. Whatever its future may be, it has survived two world wars and developed to meet a marvellously changed environment. The Commonwealth may be claimed as mainly an achievement of the Conservative imperialists, especially those of Milner's school. But Liberals contributed two elements which were necessary and which but for them might have been lacking. Their firm hold on the doctrine of consent has enabled them to cut clean, to act generously without boggling or haggling about residues of power; Campbell-Bannerman 77

Trends of Thought vindicated this principle with South Africa. Also the Liberal respect for smaller nations and for the value of their political identity has stood Britain in good stead in dealing with elements in the Commonwealth. Unionism was too much concerned with mass and uniformity, with the norm and not the exception. One final reflection may be made. In the realm of political thought Liberals have lacked a great philosopher. It has had many fine thinkers especially in the realms of economics and social reform. A century and a half ago the French Revolution stimulated Burke to his writings on the revolution which are a landmark in the history of political thought. The comparable shock of the Russian Revolution, the biggest event that this age has had to think about, has produced no Burke. Is this because that as compared with Burke's day there was no tide to stem? Liberals had learned too much about revolutions since the days when Wordsworth was young and Fox in his heyday. The naive meliorism of the eighteenth century seemed ever more out of place as the twentieth century unfolded itself. Violence begetting violence, sustaining itself by violence, was not a spectacle which Liberals could bring themselves to admire. Other forces on the Left might yield to the fascination of Moscow, might defend or extenuate or even revel in a form of society in which the old bourgeois conceptions of individual right, freedom of property and conscience, were to be swept away in one supreme act of social restitution. Firmly, Liberals kept before their eyes certain canons of politics, popular consent, personal liberty, freedom of expression. Even when their country was in military alliance with the Soviets, Liberals averted their eyes from the Kremlin and said in their hearts: " non defensoribus istis."

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THE GROWTH OF SOCIALISM G . D . H . COLE

MY task this afternoon is to speak to you on the growth of Socialism in Great Britain roughly from the beginning of the present century and to deal with the subject mainly from the standpoint of social philosophy and the interaction of events and of the movement of social and political ideas. Dicey, in his work on Law and Opinion, saw the growth of what he called " collectivism " as the outstanding characteristic of the later decades of the nineteenth century; but he used that word in a very broad sense to cover almost any kind of public intervention involving State regulation of social affairs—a sense in which its relation to anything that can be called " Socialism " is left distincdy obscure. For by " Socialism " I at any rate understand not simply extended State regulation or even positive State administration or control, but rather a movement aiming at greater social and economic equality and using extended State action as one of its methods—perhaps the most distinctive, but certainly not the only one needing to be taken into account. Socialism, as I understand it, is a movement as much as an idea, though it is an idea as well as a movement. This idea, as nearly as I can express it in a sentence, is that the affairs of the community shall be so administered as to further the common interests of ordinary men and women by giving to everyone, as far as possible, an equal opportunity to live a satisfactory and rounded existence, coupled with a belief that such opportunity is incompatible with the essentially unequal private ownership of the means of production, and requires not merely collective control of the uses to which these are to be put, but also their collective ownership and disinterested administration for the common benefit. This basic idea of Socialism involves not only the socialisation of the essential instruments of production, in the widest sense, but also the abolition of private incomes which allow some men to live without rendering —or having rendered—any kind of useful service to their fellows, and also the sweeping away of forms of educational preference 79

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and monopoly which divide men into social classes. It involves, in effect, whatever is needful for the establishment of what Socialists call a "classless society"; and in pursuance of this aim its votaries necessarily look for support primarily, though not exclusively, to the working classes, who form the main body of the less privileged under the existing social order. The Socialism I propose to consider in this lecture is, then, essentially the movement aiming at the extinction of class differences and of all forms of privilege that elevate some members of society far above the great majority, irrespective of any contribution they make personally to the service of their fellow men. This, however, is not by itself enough to serve as a complete working definition; for Socialists, though they recognise that some may contribute much more than others to the general welfare, are not prepared to reward superior service with possessions or with incomes large enough to raise such men far above their fellows, so that they become a class apart. Socialists seek to reduce economic and social inequalities not only in order to remove unearned sources of superior position and influence, but also in order to narrow the gaps between men to such as are compatible with all men being near enough together in ways of living to be in substance equals in their mutual intercourse. This, I feel sure, has been the essential driving force of the Socialist idea, at any rate in this and other Western countries; and it is by the standard of what has been achieved in this respect that the progress of Socialism must be chiefly measured. When I first became a Socialist, well over fifty years ago, Great Britain was, I think, generally regarded in Western Europe—then the unquestioned centre of the civilised world—as a backward area from the Socialist standpoint. It had then no organised Socialist movement at all comparable in strength or extent with the movements that existed in Germany, in France, in Austria, and in several other West European countries. It had, indeed, through the Fabian Society, led by Sidney Webb and Bernard Shaw, already produced a quite distinctive version of the Socialist gospel which kept it apart from the main stream of Socialist thought represented in the Second International; and the major organised expression of British Socialism, Keir Hardie's I.L.P., though it did not explicitly profess the Fabian gospel of " gradualism," was in practice much nearer to it in its general social philosophy than to Continental Marxism, 80

The Growth of Socialism which, in its British expression through H . M. Hyndman's S.D.F., had signally failed to win any substantial popular support. The I.L.P. and the Fabian Society between them, however, were not in very much better case. Socialism, in any form, was the creed only of a tiny minority, even in the working class, and was quite incapable of offering any effective electoral challenge to the strongly entrenched forces of Liberalism and Conservatism that still almost monopolised the field of parliamentary politics. In the great debates of the Second International up to 1914 Germans and Frenchmen, Italians and Russians, Austrians, Dutchmen and Belgians argued endlessly, with only occasional and not for the most part very weighty interventions from the British delegates—only one of whom, Keir Hardie, counted at any stage among the protagonists. This remained true even after, in 1906, the Labour Party had come into existence as a substantial parliamentary group; for nearly all the twenty-nine M.P.s elected under the Labour Party's auspices in that year clearly owed their seats to Liberal votes, and the party, though it had a good many Socialists in its ranks, remained until well after 1914 uncommitted to Socialism as its objective. Right up to 1918 it remained an alliance of moderate Socialists—I.L.P. members and Fabians—and of trade unions which had pledged themselves by joining it, not to Socialism, but only to independent, but in principle undefined, political action in the interests of the working class. The main progressive political force of the years from 1906 to 1914 was still not Socialism but the revivified Liberalism of which Lloyd George became the leading exponent; and the new Liberalism, though it made itself an important element in the field of social legislation, was emphatically not Socialist in any sense that implies collective ownership of the means of production or hostility to capitalist enterprise. Lloyd George was ready to wage war upon landlords and to stake out certain positive economic claims on behalf of the bottom dogs; but his social Radicalism, though up to a point it fitted in well enough with Socialist aspirations as far as it went and also commanded a wide measure of working-class support, was at the same time quite definitely anti-Socialist in its attitude to the basic issues of economic structure. If this fundamental antagonism failed to appear plainly during the period of the Liberal Government's tenure of office up to 1914, the main reason for its G.T.T.

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obscuration was that the major part of the British Labour movement, and of the Labour Party as its political expression, was in reality still Radical, or Lib.-Lab., rather than Socialist, and was ranged behind the Liberals in their struggle over the 1909 Budget with the Conservatives and the House of Lords. The battle over the 1911 Insurance Bill did indeed bring the Fabians and a section of the I.L.P. into the batde against Liberal conceptions of social reform; but in that batde the trade unions were for the most part on Lloyd George's side as defenders of the policy which Hilaire Belloc, in common with the left-wing Socialists, denounced as the inauguration of the " Servile State." These years, from 1911 to 1914, were, I know, the period of the great pre-war " Labour Unrest." They saw the rapid growth of Syndicalist and Industrial Unionist influence, involving a sharp challenge to the established Labour and trade union leadership and the assertion of militant Socialist attitudes, in the expression of which the doctrines of Karl Marx were invoked much more widely than ever before in this country. There was a quite widespread reaction against parliamentary action, which appeared to mean in practice the subordination of Labour to Liberalism; for after the elections of 1910 the Liberals could not continue to govern without either Irish Nationalist or Labour support. But, extreme though the left-wing revolt of these years was, it never won over the main body of the Labour Party or secured general support even among the Socialists. The issue raised, in its broadest form, was the same as divided every Socialist movement in the world—whether Socialism was basically a revolutionary movement in perpetual revolt against the capitalist State and aiming at its overthrow, or, on the contrary, should seek to accomplish its ends by gradual infiltrations of reform and to use the existing State as an instrument of progressive socialistic construction. It was almost a matter of chance that in the great British unrest revolutionism appeared mainly in the form of an industrial rather than a political movement; the essential conflict was between evolutionary gradualists on the one side and basically revolutionary impulses on the other— though in the particular British situation most of the instinctive revolutionists stopped a long way short of the positive advocacy of a violent social revolution, which they knew to be wholly outside the range of real possibility. 82

The Growth of Socialism Then came the First World War, sharply cutting off the manifestations of large-scale industrialist action and at the same time greatly enhancing the workers' power in society by making labour a scarce commodity that had to be propitiated at whatever cost might prove to be called for. Immediately the cost was small, because the Labour demands were very modest and the main body of the workers fully behind the war effort. Only as hostilities dragged on in the war of attrition did demands for a negotiated peace begin to gain ground; and only after the Russian Revolution of 1917 did they become really insistent. At the same time, the great split in the Liberal Party suddenly presented the Labour Party with a quite unanticipated chance to become its heir; and Arthur Henderson, after his expulsion from the War Cabinet as a result of the dispute over the Stockholm Conference, set to work to convert what had been hitherto no more than a minority group contesting only a small number of parliamentary seats into a nation-wide party staking out its claim to become, in due course, a government with a solid majority at its command. This involved two things. In the first place, the Labour Party, if it sought to become the government, had to have a clearly defined policy, not merely on specifically Labour issues, but covering the entire field of parliamentary action; and in the second place this policy had to be of a sort to attract mass support both from old voters who had been accustomed to voting Liberal (or even Conservative) and from new voters who had as yet no defined party allegiance. There was clearly only one policy that could meet the double need—gradualist Socialism—which also would both clearly distinguish the new Labour Party from both wings of Liberalism and be moderate enough not to frighten off too many hesitant electors. Accordingly, in 1917 and 1918, Henderson, with Webb and MacDonald as his principal helpers, achieved, together with the new party structure resting on individual as well as trade union membership and on the establishment of its own local organisation in every constituency throughout the country, the adoption of the essentially gradualist, but also definitely Socialist, policy embodied in Labour and the New Social Order, which for the first time committed the party to Socialism as its long-run objective, but at the same time made its wholly unrevolutionary intentions perfectly clear. True, when the election came in 1918, fast 83

Trends of Thought on the heels of victory in the war, the Labour Party seemed to reap scant advantage from its efforts. The Lloyd George Coalition carried all before it; but the Labour Party was at any rate twice the size of Asquith's Independent Liberal following, and thus formed for the first time the principal Opposition Party. Hardly more than five years later Ramsay MacDonald was called upon to form his first Labour Government, though still a very long way short of an independent majority—and was not even at the head of the largest party. Even by 1922 Henderson's tactics were clearly paying a high dividend, with 142 Labour M.P.s elected as against the sixty-one of 1918 and the still smaller contingents of the pre-war years. I have described Labour and the New Social Order as essentially an expression of gradualist Socialism in the Fabian manner. Indeed, its style clearly proclaimed that its principal architect had been Sidney Webb. It declared in favour of " the gradual building of a new social order," and called for the " socialisation of industry in order to secure the elimination of every kind of inefficiency and waste." More specifically and immediately, it demanded public ownership and operation of coal mines, railways and canals and electricity supply, and also of " the whole practice of insurance " and of agricultural land, together with public control over capitalist industry and co-ordinated production and the rationing of imports under collective control. It further called for " an equitable system of conscription of accumulated wealth," by which it appears to have meant a graduated levy on all wealth exceeding £1,000, as well as higher death duties and more steeply graduated taxes on unearned incomes. Other sections called for an ambitious programme of public house-building, for extensive trading powers for municipal bodies, and for " a genuine centralisation of education, which shall get rid of all class distinction and privileges." Thus, from 1918 onwards, the Labour Party was explicitly a moderate Socialist Party, seeking to advance towards Socialism by strictly constitutional and democratic parliamentary means, and proposing to introduce considerable instalments of socialisation and a general programme of economic controls in the event of its accession to power. This programme commanded, for the time being, very widespread working-class consent; a movement among a small group of trade unionists for the setting up of a Trade Union 84

The Growth of Socialism Party cut loose from Socialist affiliations failing to gain any substantial support. There were, of course, left-wing objectors; the B.S.P.—the new name of the old S.D.F., from which Hyndman and his supporters had broken away during the war—joined forces with a number of small left-wing Socialist bodies and with a section of the wartime Shop Stewards' movement to form the Communist Party of Great Britain, which became a part of the new Communist International, but gained only a very small following. Industrial unrest was widespread in 1919 and 1920, and the miners in particular called for industrial action to compel the Government to nationalise the mining industry. But the other trade unions refused to comply with this demand; and the period of aggressive industrial activity ended for the time being with the defeat of the miners in 1921 and with the advent of the post-war slump. Even while it lasted, the post-war unrest did not assume a revolutionary character: there was no large-scale revival of the Syndicalist and Industrial Unionist attitudes of the pre-war years. The Labour Party rejected by large majorities the repeated requests of the Communist Party to affiliate to it and took an active part in building up a new Labour and Socialist International in sharp hostility to the Comintern. Indeed, at the Berne Conference of 1919 the British joined hands with the German Majority Socialists in a declaration which committed the new International to an unequivocal endorsement of the view that Socialism could and should be regarded as inseparable from parliamentary democracy and could properly be established only on a foundation of democratic consent. While opposing intervention against the Soviet Union and calling for its recognition and for the development of peaceful trading relations with it, the British movement set its face firmly against Bolshevism, not only in relation to Great Britain, but on grounds of universal democratic principle. The Comintern retorted with fierce denunciations of the treason of Social Democrats to the cause of World Revolution and to the working class, and directed its attacks not only on the dominant right wing of Social Democracy, but even more upon those Centrists who attempted to build a bridge between Communism and Social Democracy by arguing that the use of reformist or of revolutionary methods could not be laid down as a matter of principle, but must depend on the political and social situation which each national Socialist and working-class movement had to face. 85

Trends of Thought Centrism, represented in post-war Britain chiefly by the main body of the I.L.P., found itself between the two fires of the Berne International and the Comintern, and was unable to maintain itself as an effective force. Its advocates, organised for a while on a provisional basis in the Two-and-a-half Vienna International Working Union, largely under Austrian leadership, were repelled by the Comintern and driven to merge with the Berne International in the Geneva Labour and Socialist International set up in 1923. The policy laid down in Labour and the New Social Order nearly forty years ago has remained ever since in its essential features the policy of British Socialism, though it has been in many respects amplified and made more precise by subsequent programmes and reports. The programme actually carried through by the Labour Governments of 1945-51 was in spirit almost identical with that put forward in 1918. The main differences were that in the meantime the range of immediate socialisation projects had been widened to cover the Bank of England (but not the joint stock banks), civil aviation, road transport, and the steel industry, and that there had been, over the intervening period, a very great development of the social services based on the method of compulsory insurance instituted in 1911 and a widespread recognition of the need for a comprehensive pattern of social insurance on the lines of the Beveridge Report of 1942: so that the Labour Government of 1945 found itself clearly impelled to introduce an all-in insurance system, supplemented by a measure of National Assistance paid for out of tax revenues, and to complement this structure with a comprehensive National Health Service. These measures, however, very important though they were, were involved, at any rate by implication, in the Labour Programme of 1918. The gradualist approach remained, though the contemplated pace of advance had become greater, especially in the social services field. In 1945, as in 1918, it was intended that private enterprise should be allowed to continue and to develop, for the time being, over the greater part of industry, immediate projects of socialisation being restricted to the essential basic services, such as transport, fuel and power, with central banking and steel added to the list on account of their key position as affecting the economy as a whole. In relation to the general run of industries, the Labour Programme of 1945 certainly went, in general, no further than that of 1918; for 86

The Growth of Socialism though an attempt was made, in the Industrial Organisation and Development Act of 1947, to set up a structure of development councils in which trade unions as well as employers' bodies would take part, the Government, faced with the refusal of most of the employing bodies to accept the proposed structure, drew back from any attempt to enforce compliance, and only the cotton board, with very limited powers, survived because of the very special difficulties facing the cotton industry in the post-war period. It was indeed clear that the Labour Party found great difficulty in formulating workable plans for the public control of industries that were to be left in capitalist hands. It made some effort to continue the use of the controls set up during the war, and was able to exercise some control, mainly of a negative kind, over the post-war location of new or expanded industrial enterprises. But for the most part the wartime controls lost their effectiveness as absolute shortages of essential materials were overcome, and before long " bonfires of controls " were being announced by the Labour President of the Board of Trade. Indeed, the Labour Party, when it had carried through the measures of socialisation included in its 1945 Programme—except in the case of Insurance, in which it drew back partly in deference to Co-operative opposition—appeared by 1950 to be very uncertain how to proceed further towards the policy of general socialisation to which it stood broadly committed as part of its Socialist objective. It was clear that the method of centralising control in the hands of national administrative boards or corporations could not easily be applied to for the most part highly diversified manufacturing industries made up of large numbers of independent firms of diverse sorts and sizes; and no alternative pattern for socialisation had been worked out, or even seriously considered. As we saw, in Labour and the New Social Order, the case for general socialisation had been rested mainly on the " inefficiency and waste " of capitalist enterprise; but it had to be admitted that, in certain notable instances, capitalist businesses could not fairly be charged with these defects, and that the case for socialising such businesses, if valid, must rest on other grounds, such as the general objection to profitmaking and to the concentration of economic power in the hands of private persons. Nor could it be regarded as evident that socialisation would in fact result in greater technical efficiency, or even in 87

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the elimination of waste. Strong objections were felt, by many Socialists as well as by anti-Socialists, to avoidable concentration of authority in the hands of large-scale public corporations; and there were few who wished to see the number of such bodies greatly extended by further socialisation on the lines already adopted for the basic services. In these circumstances, there came to be a conflict of opinion between those who wished to slow down, or even to arrest altogether, the movement towards further socialisation, and those who insisted on the need to abolish capitalism and therefore to continue the transfer of industries from private to public ownership and administration as an indispensable element in the advance towards Socialism. In effect, one section of Socialist opinion was veering towards the acceptance, for an indefinite time to come, of a " mixed economy " in which socialised and private industry would continue side by side; whereas its antagonists deemed that the party should draw up a new list of industries deemed ripe for socialisation, or in some cases of particular firms or groups of firms, and should pledge itself to carry through a further large programme of socialisation during its next tenure of office. Meanwhile, yet another section were seeking for ways of reconciling these divergent standpoints, by working out new forms of socialisation to be applied where the traditional methods appeared not to fit the case. From this third body of opinion emerged in 1957 the muchdiscussed proposal that, in addition to a limited programme of further socialisation of the traditional kind, the next Labour Government should adopt a policy of acquiring in payment of taxes or by market purchases shares in capitalist businesses, so as to make the State a partner with the private shareholders and a participant in the profits. It was pointed out that, if taxes on inheritances were raised still higher, it would become unavoidable for the State to be prepared to take payment in actual capital assets, as there would not be enough private buyers to enable those liable to the taxes to meet their obligations in cash. The Labour Party at the same time formulated its plan for a system of general superannuation benefits, over and above the flat-rate pensions provided through National Insurance—a plan which involved the creation of a fund holding vast resources in securities; and it was proposed that the administrators of this fund should buy holdings in private businesses and 88

The Growth of Socialism thus take advantage of the high profits and opportunities of capital appreciation offered by holding suitable equities. It was not made clear how far, if at all, the State should use its part-ownership of businesses as a means of influencing their policy by appointing its own directors to seats on their boards where its holding made this possible; but it seems clear that in course of time the policy proposed would bring about majority control of many undertakings, and that, when this position was reached, the State could hardly avoid using the power thus placed in its hands so as to socialise the effective control of such undertakings. Thus, gradualist Socialism came forward with a plan eminendy capable of leading, in the long run, to the transfer of majority control over the whole of industry into public hands, but involving, over a very long period of transition, an actual partnership of the State with the capitalists in the conduct of manufacturing and trading enterprise. These proposals came as a shock to many Socialists, who continued to insist that capitalism is the enemy to be fought in the present as well as superseded in the longer run. It is, however, clearly the case that, in a very real sense, any form of gradualism involves a sort of partnership between socialised and non-socialised enterprise; for the prosperity of both is indispensable for the maintenance of full employment and for keeping total production at a high and rising level. No matter how hostile in principle Socialists may be to capitalism, they cannot, if they are gradualists, wish it not to prosper except when they are prepared to do without it by taking over the enterprises under its control. This is, no doubt, somewhat different from actually participating in its profits by acquiring shares in capitalist businesses; but is the difference really as great as it is often made out to be? Of course, the danger that the critics have in mind is that the acceptance of formal partnership with capitalist enterprise may undermine the will to advance towards Socialism and may react on trade unionism so as to decrease its militancy in pressing workingclass claims. There is, indeed, already something of a dilemma in relation to the position of the trade unions in the socialised industries, where the unions assert the State's obligation to ensure satisfactory wages and working conditions, and are met with the accusation of putting forward demands that the industries in question cannot afford to meet, and that are said to be incompatible 89

Trends of Thought with the interests of the nation as a whole. Wherever socialisation exists, the State is necessarily in the last resort a party to the process of determining wages and conditions. Nor is the difficulty confined to socialised enterprises. In any major dispute in an important industry, even if it is privately owned, the attitude taken up by the Government may have a decisive influence on the attitude of the private employers, as it undoubtedly did in the great engineering and shipbuilding disputes of 1957. These, to be sure, took place under a Conservative Government; but a Labour Government could evidently find itself faced by a largely similar problem. For gradualist Socialists, unless they are prepared to contemplate the indefinite continuance of a largely capitalist, mixed economy, it is not easy to see any alternative to the attempt to speed up the transition to Socialism by using the acquisition of shares in capitalist business as one of the roads of advance towards full socialisation. This is not to say that it is the only or even the main road. It is fully practicable, short of socialising entire industries, for the State to take over single large businesses, such as I.C.I., or groups of firms holding key positions in an industry not deemed suitable for complete socialisation; and this process could evidently be carried further, stage by stage, if its initial results were deemed satisfactory. So far, however, the advocates of such piecemeal socialisation have not made it at all clear what arrangements they would propose for the conduct of the socialised businesses, either in respect of the appointment of directors or in that of bringing them into compliance with the requirements of co-ordinated economic planning. Socialist thinking on this matter, as well as on that of the controls to be exercised over private industry generally, is still at a somewhat inchoate stage; and the divisions of opinion are rather in terms of basic differences between those who prefer the continuance of a " mixed economy " for a considerable time to come and those who want a rapid extension of socialisation than between advocates of clearly formulated rival plans of action. There are, indeed, apart from the fundamental differences between gradualists and Communists—that is, between those who seek to build on the foundation of existing States by transforming them by stages into instruments of social welfare and those who regard the destruction of the capitalist State by revolution as the 90

The Growth of Socialism indispensable pre-condition of Socialist construction—large differences among the gradualists themselves in their view of the societies of the future. The great German Revisionist Socialist—Eduard Bernstein—once shocked many of his fellow-Socialists by saying that Socialism should be regarded rather as a process than as a preconceived system; but unquestionably that is how many gradualists look upon it today. The effect can easily be to shift the emphasis away from socialisation to social reforms that ameliorate the condition of the poorer classes, whether or not they result in extension of public ownership and operation of the means of production. It used to be widely argued that no large improvements in the " condition of the people " could in fact be achieved as long as capitalism remained in being, and that socialisation alone could arm the Government with power to bring about an effective redistribution of incomes. But this view has been blown upon by the undoubted advances made by the workers under capitalism in the United States, and even in Great Britain. It used to be supposed that capitalism could exist only with the aid of a large reserve of unemployed labour, and that it was necessarily subject to periodical alternations of boom and slump due, in the last resort, to maldistribution of consuming power. It is still unproven that it has contrived to free itself from the danger of depressions—indeed, there are today many who believe a world slump to be already on its way—but it has been put beyond question that substantial gains in real wages and very great developments of the social services can be achieved within a predominandy capitalist social order; and in practice the gradualist Socialist Parties have devoted much more attention to furthering such reforms than to endeavouring to compass the overthrow of capitalism as long as its continuance appears to be compatible with them. Whether this situation will last has still to be seen. Its continuance depends on continued success in improving working-class conditions under capitalism—which is partly a matter of maintaining the pace of technological advance in the arts of production, and pardy one of sustaining effective pressure for improved distribution of the fruits of rising production. In Great Britain today, the possible gains from increased taxation of the wealthy are clearly somewhat limited, at any rate as long as the incentives to capitalist 91

Trends of Thought production have to be maintained. Any serious industrial depression would evidently be likely to lead to a sharp conflict over both wages and the maintenance of Welfare State services. Depression would weaken the trade unions, but might at the same time lead to a considerable strengthening of Socialism as a political force, and thus open the way to more drastic anti-capitalist action by a Labour Government, which might be driven leftwards under the pressure of its adversely affected supporters. This, however, might not happen if the depression were, in the main, limited in its effects to a fairly narrow group of industries and distressed areas, as largely occurred in the 1930s, when strong leftward currents in the coalfields, and in the shipbuilding and heavy engineering centres, failed to evoke much of an echo in the more prosperous parts of the country. What is evident is, I think, that Socialism as a doctrine involving general socialisation of the means of production and the entire supersession of the capitalist mode of production has still today, in the economically advanced countries, only a very limited appeal, even among supporters of the Labour and Socialist Parties, and even that arguments and exhortations resting on this basis cut less ice than they used to do when there seemed no prospect of Socialist Parties speedily attaining to political power. This is pardy because the condition of the workers has been in fact almost continuously improving for some time past under capitalism, and also pardy because the actual experiences of limited socialisation have been somewhat disillusioning and have aroused doubts about the desirability of extending it much further along the existing lines. It has also to be taken into account that the development of the Labour Party as a nation-wide electioneering machine has proved fatal to the influence of organised bodies of Socialist propagandists—such as the I.L.P. used to be—much less concerned with immediate electoral prospects than with making individual converts to Socialism as an ethical social gospel. Today, propaganda for Socialism in this broad sense hardly exists beyond a few tiny and in the main ineffective groups. Some will no doubt argue that this has occurred because such propaganda no longer evokes any widespread response, and is in effect out of date; but I think the decline is due, at any rate in part, to the increased activity in the masselectoral field. A political party seeking a majority in elections must of necessity direct its propaganda chiefly to issues of immediate

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The Growth of Socialism " practical politics " and must woo most of all the marginal electors, whose interest in politics is not high and who are likely to be little roused by theoretical appeals for a complete change of system— unless, indeed, they feel the existing system to be actually in process of collapsing upon them—if even then. This state of affairs is no less unavoidable than it is that the proportion of inactive and apathetic members in the trade unions should rise as the unions come nearer to including the entire body of persons eligible for membership. If Socialism is to be built by the methods of parliamentary democracy, it has to be built with a great deal of lukewarm and half-hearted support, or not at all. Quite possibly, no complete Socialist society can be built in that way. If that is so, Great Britain is likely to continue indefinitely under a " mixed " and perhaps even a predominantly capitalist economy—unless capitalism itself after all does collapse under the impact of a world depression too disturbing for it to overcome—a matter on which I do not propose to venture on any prophecy. Whatever conclusions my audience may arrive at on such matters as these, it is undoubtedly the case that Great Britain today is a much more " socialistic " country than it was when I was young—not merely because it has socialised something approaching one-fifth of its economic structure, but rather because the extent of really wretched poverty afflicting its people has been so much reduced, because there has been a real approximation of standards and habits of living among the majority of its citizens, and because in the educational field there has been both a remarkable improvement of provision at the lower levels and a very considerable diffusion of the opportunities for entry to the higher kinds. There are, indeed, very large survivals of educational privilege, and intense efforts are being made to maintain and even to re-extend them; but the universities of today are none the less very different in social conformation and much less class-ridden than those of my student days, and the road of promotion to higher positions is a good deal wider than it used to be. No doubt, it can be argued that this represents a movement, not towards a " classless Society," but towards a new structure of class divisions resting less on an hereditary basis, but no less incompatible with Socialist aspirations for social equality. It is often argued that, in the Communist countries, the pretended abolition of classes has been in part a 93

Trends of Thought process of establishing a new class-structure no less, or perhaps even more, inequalitarian than the old; but even if this were so—and I think it no more than a half-truth—are not very similar tendencies at work in our own society, as they have been for a long time past in the United States? A wealthy man is not less a capitalist because he has risen from the ranks instead of inheriting his wealth and social position; and, in my view at any rate, Socialism is incompatible with really large differences of wealth or income, however acquired,

and compatible

with such differences only to the

minimum extent to which they are needed to serve as incentives to energetic service in the general interest. The extent of Socialist progress should, I feel, be measured most of all by its success in both raising social production and narrowing social and economic differences; and in this respect there has been real, though limited and by no means uncontested, advance. Whether this advance will continue without serious interruption or not, or even whether it will continue at all, I do not profess to know; for I am not among those who believe that the future can be predicted with scientific certainty.

I do, however, feel fairly well

assured that it would be very difficult to reverse the trend of the past seventeen years either by taking away the real improvements in the condition of the majority, or by any undoing of the main socialisations already achieved. No one, as far as I know, proposes that coal mines or railways or the generation of electricity or the supply of gas shall be returned to private enterprise, or that the Bank of England shall become once more a privately owned corporation.

The socialised parts of the steel industry, it is true, have

gone back to private operation, and road goods transport also has been partly, but by no means entirely, denationalised.

But the

process will most likely be again reversed in the case of steel, and possibly in road transport also; and it seems much more probable that there will be additions to, than further subtractions from, the range of public enterprise, even if the next Labour Government does decide on less ambitious advances than its predecessor of 1945.

The

production of nuclear power has made its beginnings as a public service, and seems pretty certain to develop, at any rate for some 94

The Growth of Socialism time to come, under public ownership and administration; and, wherever really vast capital investments are involved, it seems unlikely that they can in future be financed except from public sources.

Moreover, whenever techniques of mass-production come

to be applied on a really big scale, the only real choice appears to lie between public operation and private monopoly which is very difficult to keep under effective public control; and the current of opinion, even in anti-Socialist quarters, appears to be running fairly strongly against private monopolistic control.

In some degree,

modern technological conditions thus strengthen the case for socialisation, over an increasing part of the field. Similarly, the drive towards further expansion of the social services seems most unlikely to be reversed, especially in face of the increased numbers in the older age-groups and of the growing feeling that old-age pensioners have been getting much less than a fair deal.

Public educational provision, even if it suffers at times

from " economy cuts," also seems pretty certain to expand, above all in the fields of science and technology, but also in that of general education, as it comes to be better understood how greatly productivity depends on high standards of general, as well as of specialised, education.

On

the whole, then, it seems reasonable to be

moderately optimistic about the probable continuance of the recent trends towards a lessening of social inequalities, despite the momentary strength of the forces pulling in the opposite direction. Even such moderate optimism, of course, makes strongly on the side of gradualist, as against revolutionary, Socialism; for it can be taken as practically certain that nothing short of a clear reversal of the recent tendencies would suffice to arouse in Great Britain any strong movement of a revolutionary character. When improvement is felt to be taking place, most men will not be induced, in the hope of making it greater in the long run, to jeopardise its continuance in the nearer future.

Revolution is the child of misery

and despair; and in Great Britain at any rate misery has greatly decreased, and most people see no reason for despairing of the future, even if they are conscious of dangers to the British economy that can be successfully confronted only by large and intelligent 95

Trends of Thought efforts to improve the use made of limited resources of manpower and capital for investment. British Socialism has, no doubt, shed a good deal of the idealism of its earlier days; but I think its basic desires, even if they are less intense, maintain their general direction unchanged, and are on the whole likely to remain strong enough to enforce further advances towards social equality and the elimination of inequalities that cannot be defended, even plausibly, on the ground of any contribution to the general well-being.

96

THE

LAW

OF

ASSOCIATIONS D E N N I S LLOYD

THE fundamental conflict between the hedonistic psychology and the moral standard of value adopted by the Utilitarians has often been remarked upon.1 On the one hand, they represented every individual human being as engaged in the relentless pursuit of his own pleasure; on the other hand, law and society were to be regulated by that sacred truth embodied in the principle of the greatest happiness of the greatest number. But the pleasures or satisfactions of individuals might, and frequently do, conflict. How then were these to be so harmonised as to result in that Benthamite Nirvana of a world of maximum happiness diffused among the whole, or at least the greatest number, of mankind? Two mutually inconsistent ways of resolving this impasse could be prayed in aid. It was more a tribute to their enthusiasm than their logic, or if you like, to their hearts than their heads, that the Benthamites decided not to make the invidious choice between these two irreconcilable views, but, in a spirit of impartiality, to rely on both according as it suited their purpose. Bentham himself, whose main interests centred round the practical reform of an obsolete system of law, accepted the view that the machinery of law was necessary in order to reconcile the inevitable clash of individual interests which arise when men live together in society, and therefore that law was the great instrument for harmonising such clashes in accordance with the maximum happiness principle. That there was no automatic or natural identity of individual satisfactions was sufEciendy demonstrated by reference to the calendar of the Old Bailey; the role of the statesman and legislator was therefore to define crimes and punishments in such a way as to bring private interests by the artificial machinery of the law to 1

See E. Halevy, Growth of Philosophical Radicalism, pp. 489-491; J. Plamenatz, English Utilitarians, pp. 7-10. Cf. Jeremy Bentham and the Law, W. Friedmann, at pp. 235-236; A. J. Ayer, at pp. 250-259; and see also B. de Jouvenel, Sovereignty, Chap. 14.

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coincide with the public interest. " L a w alone (said Bentham) has accomplished what all the natural feelings were not able to d o . " 2 So much for the juristic philosophy of the Utilitarians. When we turn, however, to their economic doctrines, we find that in effect they took over bodily the doctrines of the classical economists, such as A d a m Smith and Ricardo. T h e philosopher T h o m a s Hobbes, in propounding his authoritarian doctrine of sovereignty, took the cynical, but not altogether unwarranted, view that men were not the soundest judges of where their best interests lay. Accordingly, the Leviathan-Sovereign must force upon them those courses which are for their benefit, though they may be unwilling to adopt these of their own volition. Or as Rousseau later expressed it, in more mystical terms, a majority may have to force the minority to be free. 3 Such ideas we have already seen repeated in a more palatable form in the jurisprudence of the Utilitarians. T h e contrary idea of the natural identity of interests received one of its earliest expositions in Mandeville's The Fable of the Bees, published in 1714. Mandeville argued that the greater men's wants were, the more their selfish desire to satisfy them must lead to co-operation in the production and distribution of the goods necessary to satisfy those wants, for without such co-operation this result could clearly not be achieved. T h e classical economists put this line of thought as the foundation stone of their economic theories. If the natural urge of each individual towards satisfaction of his economic needs is allowed free play, a balance will be automatically struck, which will tend towards the economic progress of any given society. Hence, in the economic sphere, there is no place for law or government to intervene, for it can only do so by imposing restraints of one kind or another, and economic progress lies in the direction of a free and untrammelled interplay of competitive interests. There is thus a natural identity of interests which automatically operates to harmonise the conflict of competitive individual interests and everything can be left to a kindly providence in the name of laissez faire. It seems strange indeed that Bentham and his disciples thus contrived to straddle these two steeds, each busily engaged in 2 Bentham, Wor\s (ed. Bowring), I, p. 307. See Contrat Social, Bk. I, Chap. 7.

3

100

The Law of Associations galloping in the opposite direction. Yet I think we can more easily perceive how this came about when we bear in mind that for Bentham the role of the law, even in the non-economic sphere, was extremely limited. Bentham was mainly impressed by the utterly irrational and semi-feudal nature of the English legal system in his day, and was concerned to refute the complacency with which Blackstone and his fellow-lawyers viewed that archaic system.4 Not without some justification, Bentham regarded the contemporary legal system as mainly existing for the benefit of the legal profession,5 including the judges, who were paid in those days out of fees contributed by litigants.6 As Mill put it in his essay on Bentham, " The whole progress of a suit at law seemed like a series of contrivances for lawyers' profit, in which the suitors were regarded as the prey." 5 Once rid the country of this farrago of antiquated and obsolete law and substitute for it a highly rationalised and streamlined code (preferably framed by Bentham himself) and not only would the legal profession wither away for want of employment, but there would be increasingly little room for those clashes between the public and private interest which sullied the face of human society in Bentham's day. Some need there would doubtless always be for a criminal law, but with the spread of popular education and democracy, and when that law had been transformed to comply with the Benthamite " calculus" of pleasures and pains so as to embody a rational compendium of obligations and publishments properly graded and classified, it would rarely need to be invoked, and the Benthamite jailers would have but few prisoners to scrutinise and reform in their " Panopticons." Hence, the outworn laws having been consigned to the rubbish heap, the legislator could sit back in the image of his Maker,-and see that all was good, happy in the reflection that but for an occasional criminal the blissful rule of nature in the name of laissez faire would inexorably regulate the activities of all mankind 4

5 6

This attitude is still by no means extinct. Thus Lord Evershed M.R. has recently spoken, regarding English law, of '' its heyday of the eighteenth century '' and referring to what he calls its '' eighteenth-century quality ' ' adds that '' it looks to a time which gave glory to other aspects of our h e r i t a g e " : "Impact of Statute on Law of England," in Proceedings of British Academy (1956), Vol. 42, pp. 250, 255. See Mill on Bentham and Coleridge (with an Introduction by F . R. Leavis), 1950 ed., pp. 78-79. Salaries were substituted for fees in 1826: see Holdsworth, History of English Law, Vol. I (7th ed., revised), p. 255.

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so as to promote the general utility and maximise human happiness, not only in economic but through the whole range o£ human affairs.7 Bentham and his followers had indeed allowed themselves to be beguiled into thinking that there was really no genuine conflict possible between the public and the private interest. Once modernise the law and all would be harmony. Démocratisation was also necessary, but only (in Bentham's view) because without this it would never be possible to attain the reform of the law in the face of the landed gentry and lawyers who had an overwhelming interest in the perpetuation of the old system. The Utilitarians were, in this respect, the victims of their own rationalism. John Stuart Mill, who saw through some of the fundamental weaknesses of his predecessors' doctrines, made this comment on his father, James Mill's, somewhat naïve faith. " So complete was my father's reliance on the influence of reason over the minds of mankind, whenever it is allowed to reach them, that he felt as if all would be gained if the whole population were taught to read, if all sorts of opinions were allowed to be addressed to them by word and in writing, and if by means of the suffrage they could nominate a legislature to give effect to the opinions they adopted. He thought that when the legislature no longer represented a class interest, it would aim at the general interest, honestly and with adequate wisdom." * The logical and philosophical difficulties involved in Utilitarianism remained unresolved, despite the efforts of John Stuart Mill. But increasingly from the middle of the nineteenth century the law reformers, though inspired by Bentham, abandoned doctrinaire laissez faire and came to recognise the socially beneficent function of legislation in practically every sphere of human activity. " I have no faith in Act of Parliament reform," Coleridge had averred.9 Public opinion learnt to think otherwise. Hazlitt might stigmatise the " rage of legislation " as " the first vice of society," 10 but society declined to regard as vicious what secured See Mackinnon, Study in Ethical Theory (1957), p. 36. Autobiography (1873), p. 106. For the roots of this attitude in Cartesianism, see B. de Jouvenel, Sovereignty (1957), Chap. 13. » Table Tal{ (Oxford Classics ed.), p. 190. 10 Winterslow (World's Classics ed.), p. 148. 7

8

102

The Law of Associations to it the most effective means of promoting the social virtues.11 Thus the more valuable part of Benthamism, the emphasis on practical reform coupled with a broad standard of public utility by which it was to be judged, was retained, while the crude and untenable hedonist psychology was jettisoned, as was gradually also the pure doctrine of economic laissez faire, despite its recent triumph in the repeal of the Corn Laws. And with the recognition that the law may be required in the interests of society to intervene at almost every point of human activities grew the realisation that not only was there no automatic solution of human conflicts by the merger of the individual in the common interest, but that on the contrary perhaps the fundamental problem of our times was the clash between the public interest and the interests of the individual citizen. This is a point which needs little emphasis at the present days, when we have such landmarks to guide us as Crichel Down in this country, and the operation of McCarthyism in the United States. It is particularly pertinent in this connection to recall that in John Stuart Mill's classic contribution to the subject of liberty in the modern State, what the author strove to emphasise was not merely the need for legislative restraint but even more important (as he thought) for a genuinely tolerant public opinion which values differences of opinion and the rights of divergent minorities, however unconventional.12 " Surely" (wrote Mill in his essay on Bentham, referring to the power of the majority in words which have perhaps an even greater relevance to our own time than to his) " when any power has been made the strongest power, enough has been done for it; care is thenceforth wanted to prevent that strongest power from swallowing up all others." 13 Mill still, however, retained the fundamentally individualist approach of the Utilitarian,14 so that for him the problem of liberty consisted in the possible clash between the individual and the State or Society as a whole. He did not pause to consider the problems raised by associations within the State, whether in their relations to the State itself or to their own members. See the effective retort to such laissez faire viewpoints, in }. S. Mill, op. cit., pp. 156-157. 12 See J. S. Mill, On Liberty, Chap. IV. 1 3 J. S. Mill, op. cit., p. 88. 14 " H e never seriously doubts that . . . society [is] a set of individuals": J. Passmore, A Hundred Years of Philosophy, p. 13. 103 11

Legal

Developments

The Utilitarians can hardly be said to have faced up seriously to the problem of the place of associations within the State. The approach of authoritarian writers such as Hobbes and Rousseau had been distinctly hostile to the formation of all " partial associations " which might come between the individual and the State.15 Since the beginning of the nineteenth century one of the most important types of partial association has been the trade union, which was the subject of oppressive combination laws not finally repealed until 1871. Here the prevailing doctrine of laissez jaire was distinctly equivocal. On the one hand, it could be said that the combination of workers to improve their bargaining position was a restraint on the free labour market between employer and employees.16 On the other hand, and this seemed to be the prevalent doctrine among the Benthamites who concerned themselves with this problem, it could be said with equal if not greater force that such collective bargaining was essential if the balance between both sides was to be maintained, for freedom of contract was meaningless when one side was utterly powerless to resist the demands of the other.17 With the later developments of Utilitarianism to which I have referred come better times for the trade unions. As modern liberalism emerged from its earlier chrysalis of philosophical radicalism, it could hardly be gainsaid that the workers should be allowed the freedom to combine in order to improve their conditions of employment. But the compromise enshrined in the Trade Union Act of 1871 casts an interesting light on the climate of liberal thought as it was developing in the latter half of the nineteenth century. The problem was to be resolved by granting workmen the right to associate together and to register their associations with the Registrar of Friendly Societies.18 But the associations so registered were not granted the status of corporations, that is, of independent legal persons; nor could this be achieved by registering under the Companies Act, for such registration was forbidden to trade unions.18 Hence the trade union was, in law, nothing more than a collective name for its members, and the problem of its legal Hobbes likened them to ' ' worms in the entrails of a natural man " (Leviathan, Pt. II, Chap. 29). For Rousseau, see Contrat Social, Bk. II, Chap. 3. See the views of liberal-minded judges such as Baron Bramwell referred to in Dicey, Law and Opinion in England, pp. 199-201; cf. also pp. 266-273. 17 Cf. S. & B. Webb, History of Trade Unionism, 2nd ed., pp. 96-112. 1» Trade Union Act, 1871, ss. 6, 13 and 17. « Ibid., s. 5. 15

16

104

The Law of Associations liberties remained primarily that of the relationship between its individual members and the State itself. Nor was this all, for the Act sought to reduce to virtual impotence the power of legal coercion of the union over its own members.20 This has had farreaching legal implications to which I must revert later. For the moment I would point out that the real purpose of these strange provisions was probably the desire to keep the power of the unions within bounds so far as possible. Or, as it was put at the time, the time " was not yet ripe " for enabling trade unions to sue and be sued by their members.21 Moreover this attitude was also probably encouraged by the notion that trade unions were a kind of club, and that the courts ought not to be concerned with their internal domestic affairs any more than with the exclusion of a member from the Reform or the Carlton Club.22 This false analogy has indeed lain as a sort of incubus on the general law of associations, from which it has even yet only partly freed itself. But just as the problem of the conflict between the freedom of the individual (whether alone or combined in partial associations) and the State had not yet loomed large in the public mind, so apparently little thought was given either to the problem how, if at all, the individual or a minority might be protected against the oppressive action of its own association. It is, however, ironical that the provisions of the Act of 1871 aimed at reducing the power of the union over its members have in fact served, at least until very recently, to strengthen the hand of the union in enforcing the closed shop on its members. Such are the imperfections of human foresight. A cynic could also remark that this unexpected consequence may account for the failure of the unions to press for the repeal of the restrictive provisions of the 1871 Act. The fact is, as we all know, that since 1871 a tremendous change has occurred in the position of trade unions in this country. The implications of this change are, of course, primarily economic and political and therefore, happily for me, not such as to fall within the province of a mere lawyer. There are, however, also social and legal consequences which cannot be ignored. Many of these have a 20 21 22

Trade Union Act, 1871, s. 4. See Minority Report of Trades Union Commission, 1869, p. 59. Cf. the Roman reluctance to interfere with domestic discipline: see F. Schulz, Classical Roman Law, p. 151.

105

Legal Developments general bearing on the present state of our law of associations as a whole, though some arise in a particularly acute form in relation to trade unions owing to the establishment of the " closed shop " in many industries and trades in this country. At the turn of the century the trade unions were still relatively weak, and although lawfully established for more than a quarter of a century under the ill-defined status conceded by the 1871 Act and with the right to strike legally recognised, they still appeared to be vulnerable to common law actions for conspiracy or for wrongfully inducing breaches of contract. This vulnerability was painfully revealed in the celebrated decision in 1901 of the Tail Vale Railway Company against the Amalgamated Society of Railway Servants.23 The House of Lords, which need not at that time be suspected of undue feelings of benevolence towards the trade unions, decided that a trade union could be sued in tort where it had called out its men on strike in breach of their contracts of employment. Some sympathy may perhaps be felt for the underlying idea of this decision, namely, that a body which is able to exert power and influence in economic affairs should not be able to escape the usual legal consequences if damage resulted to others from the exercise of that power. At the same time it must equally be admitted that to expose the unions to claims for damages, for what must be the inevitable consequences of any strike action for which they were responsible, was in effect to deprive the unions of the only weapon by which they could bring their influence to bear. This decision indeed was what journalists nowadays would call " political dynamite." As Dr. G. M. Trevelyan has pointed out 2 1 : " The Taff Vale decision of 1901 gave impetus and power to the Labour Party, which became an effective Third Party in the State, destined in a generation to destroy and replace the Liberal Party. The judges have played a very great part in the development of our politics, though it was not the part they intended to play." The legal consequences were rather more speedy and hardly less far-reaching. For the Liberal Government, upon their return to power in 1905, proceeded with the passage of the Trades Disputes Act in the following year, an Act which went to the opposite extreme of relieving the unions of liability for any tort whatsoever. 23 [1901] A.C. 426. 24 British History in the Nineteenth

Century, 106

2nd ed., p. 437.

The Law of Associations This remarkable piece of legislation, which appeared to go far beyond what was necessary to preserve the inviolability of the right to strike, had the result, as was judicially observed two years later, of removing the trade unions " from the humiliating position of being on a level with other lawful associations of His Majesty's subjects . . . and they are now super legem, just as the medieval Emperor was super grammaticam." 25 Like earlier payments of Danegeld it equally failed to repel the invader. The statutory exclusion of liability for tort and of the direct enforcement by legal process of trade union agreements has had the conspicuous result of removing the bulk of disputes connected with collective bargaining out of the domain of the ordinary courts. There are, of course, other tribunals seised of these matters and their functions are of great importance. These, however, have no direct bearing on our present law of associations and they are, therefore, outside the scope of this lecture. They will, however, doubtless be referred to in a later lecture in this series. For the moment I wish to return to what has proved to be the main legal problem governing associations in the present century, viz., the relation of the association to its own members. I have already pointed out that it was not at first appreciated that the power of a union over its own membership was likely to give rise to any special problems. In those early days trade unions were still looked upon as the " underdogs " who were themselves in need of legal protection, and of course the Taff Vale case did nothing to diminish this sentiment. It is significant that as late as the second edition of Dicey's Law and Opinion in England, which appeared in 1914, there is little reference save in very general terms to any problem of this character. For Dicey the principal matter which seemed deserving of comment and discussion was the right of association itself.28 No one then seemed to visualise that with 25 Per Darling J. in Bussey v. A.S.R.S. (1908) 24 T . L . R . 437. 2 8 Dicey does, however, stress that the utilitarians failed to reconcile the unlimited right of association with the contractual freedom of each individual (see p. 158). He does not, however, enlarge much on this point though it is clear that what he has in mind is the enforcement of the closed shop on non-unionists. Thus, on p. 473, he refers to the protection against boycott or being put on a black-list conferred by the French courts on a non-unionist workman and adds: ' ' such decisions as these greatly resemble in spirit some recent judgments pronounced by our courts." This, however, appears to have been an over-optimistic assessment of the position and Dicey does not in fact cite the authorities he has in mind. (Probably Quinn v. Leathern [1901] A.C. 495 is one of these; but later cases make it clear that there is nothing illegal in maintaining a closed shop; see, e.g.,

107

Legal

Developments

the fast-growing power of the unions a time would come when the law might have to restrain the oppression of the unions against their own members. No doubt also those of liberal persuasion who favoured the increase of union power were equally inclined, with their Utilitarian predecessors, to assume that with the spread of education, democracy and freedom, reason and good sense would automatically prevail. And just as the committee of a West End club could be relied upon as a body of gentlemen to treat its members with all proper fairness, so the sturdy common sense of the working man would not fail to ensure a square deal for his fellows. I am far from saying that in the main these views are not well founded, but of course legal rules and remedies exist not only to establish a general standard but to secure justice in the exceptional case. Most people are ready and willing to carry out their agreements without legal coercion but we are not able on this account to dispense with a law of contract. In the realm of trade union law the issue was further bedevilled by two other factors which I have already touched upon. First, there were the provisions of the 1871 Act excluding from direct enforcement certain classes of contracts with trade unions, and secondly, the peculiar status of a trade union under that Act. As early as 1880 the view had been expressed in a leading case that these statutory provisions would prevent an expelled member from obtaining a declaration or injunction from the court in order to secure his restoration to membership.27 This notion was not indeed finally dispelled by the House of Lords until 1922.28 What, however, has given the matter overwhelming importance in the course of this century has been the steady development of the " closed shop." For if this is rigidly adhered to, a workman excluded from his union can be entirely prevented from pursuing his chosen trade and his whole livelihood may therefore be at stake. The law has taken even longer to clear up the second difficulty. In 1915 the Court of Appeal had refused to allow a claim for damages for breach of his contract of membership brought by a member who

" 28

Reynolds v. Shipping Federation [1924] 1 Ch. 28.) Moreover, there is no hint as to the possible need to protect an actual member of a union against unfair penalties imposed upon him by the union. Nor is there any reference to the broader aspects of the law of associations outside the field of trade union law. Rtgby V. Connol (1880) 14 C h . D . 482. Braithwaite v. Amalgamated Society of Carpenters [1922] 2 A.C. 440.

108

The Law of Associations had been wrongfully expelled, on the ground that the union was not itself a separate legal entity and that no such claim could be sustained in law by one member against the other individual members.29 It took forty years before the House of Lords in Bonsor v. Musicians' Union 30 was able to clear away this further obstacle from the path of an aggrieved trade union member. Moreover, the lack of agreement between the Law Lords who decided that case has still left unresolved the precise status of a union in law. A trade union is sometimes referred to as a quasi-corporation, but this recent decision has done little to clarify the exact meaning of this term or its applicability to trade unions.31 It must not, however, be thought that the need for protection of a trade unionist from wrongful exclusion is a unique problem; on the contrary it is one which has very general implications in our present law of associations. Unfortunately much of the difficulty that has arisen in this branch of law has been due to the failure of our courts to develop a separate body of legal doctrine in relation to associations as such. Accordingly, the law does not recognise any inherent right of a member of an association to legal protection in respect of his status as a member. If protection is sought he must be able to point to some definite legal right in respect of his membership, which entitles him to a legal remedy. At first the tendency was to consider that only an invasion of the sacred right of property would suffice for this purpose; that is, that the member could only have a remedy if he could show that deprivation of membership involved him in a loss of property, for instance in the right to share in the enjoyment of club premises. Later developments have shown that this is too narrow a foundation upon which to base the court's intervention, and it is now fairly established that the assistance of the court may be invoked where membership is itself a contract and the expulsion was in wrongful breach of that contract. These are all highly technical matters and I have already discussed them fully elsewhere.32 Time would not permit me to Kelly v. National Society 0} Operative Printers (1915) 113 L . T . 1055. 30 [19561 A.C. 104. 3 1 See this matter discussed in my article, "Damages for Wrongful Expulsion from a Trade Union," in (1956) 19 M.L.R., p. 121. 3 2 See my articles " T h e Disciplinary Powers of Professional Bodies" (1950) 13 M.L.R., p. 281; "Judicial Review of Expulsion by a Domestic Tribunal" (1952) 15 M.L.R., p. 413; " The Right to Work " (1957) Current Legal Problems, p. 36; and on the decision of the Canadian Supreme Court in Orchard v. Tunney [1957] S.C.R. 436; (1958) 36 Can.B.R. 83. 29

109

Legal Developments re-examine them now, nor indeed is this the appropriate occasion to enlarge upon the technical aspects of our subject in the course of a discussion which is intended to explore its more general social implications. It will therefore suffice if I state here rather baldly where it seems to me our law of associations has failed to adapt itself adequately to present social needs. At the present day the right of a workman to exercise his trade will probably depend upon continued membership of a trade union; if his occupation is professional or semi-professional it will depend, as likely as not, either upon membership of some professional association or organisation, such as the Chartered Institute of Surveyors, or upon a licence to carry on his activity granted by a self-governing body such as the Boxing Board of Control or the Stewards of the Jockey Club. As to membership of a trade union, this is now to some extent protected as a result of the Bonsor case,33 though difficulty may still arise in those cases where there is no clearly defined contract of membership. Moreover, it seems doubtful how far any legal protection could be given to an expelled member under the present law where the rules of the union simply confer on the executive body power to exclude a man in its unfettered discretion, without giving reasons for so doing. As to other types of professional organisations, some of these are of course regulated by statute, such as the disciplinary powers of the Law Society over solicitors, or of the General Medical Council over medical practitioners.34 The majority, however, make their own rules and enforce them in their own way. Here the position is highly artificial. For if the body in question is not incorporated, then even if the excluded person had a contract of membership it is doubtful whether for technical reasons he can recover damages for loss resulting from his expulsion, though he may be restored to membership by way of a declaration and injunction.35 In many instances, however, he may not be a member of the controlling body, in which event his right to damages may depend upon whether his licence does or does not amount to a contract and if so 33 34

35

Supra, note 30. See Solicitors Act, 1932, ss. 4-12, as amended by Solicitors (Amendment) Act, 1956; Medical Act, 1956, ss. 32-39. See also Architects (Registration) Act, 1931, s. 9, and Hughes v. Architects' Registration Council [1957 ] 2 All E.R. 436. See the discussion of the effect of the Bonsor case, in my article in (1956) 19 M.L.R., at pp. 131-135, cited above, note 31.

110

The Law of Associations what its terms may be.38 It will be appreciated that such a person has no say at all in determining what are the rules of such bodies or as to the terms on which licences may be granted. The attitude of such bodies, indeed, resembles that of Bishop Horsley when he remarked that he did not know what the mass of the people had to do with the laws, except to obey them.37 Nor is the position very different in regard to the content of the rules of a trade union.38 Moreover, the aggrieved individual may not even have a contract to which he can point, as, for instance, in the case of an unlicensed trainer who is disqualified or a footballer suspended by the Football League.3" In such a case there is clearly no basis on which damages can be awarded (since there is no contract between the man and the controlling body), though he may possibly, in some rather ill-defined circumstances, be entitled to an order preventing him from being deprived of his right to carry on his professional activities.40 Further, even in those cases where the court will intervene, it will not re-try the whole case between the member and his association but will simply ensure that the expelling tribunal has not made any error of law, that it has complied with its own rules, and has given the expelled member a fair hearing in accordance with what is called " natural justice." The court is therefore compelled to assume that the tribunal's findings of fact were correct and will not substitute its own view of the facts for that of the tribunal.41 All this may seem rather a haphazard and hit-or-miss manner of preserving by legal process so fundamental an interest as a man's 3« See Russell v. Duke of Norfolk, [1949] 1 All E.R. 109. 37 See Trevelyan, Life of Macaulay, I, p. 146 (World's Classics ed.). 38 The recent controversy over a disputed election of a member of the executive of the Electrical Trades Union has focused public attention on the possible need for some form of control over the rule-making powers of trade unions, and for some means of public inquiry into their internal affairs where this is necessary to protect the interests of the members. 39 A good deal of public attention has been given recently to the wide powers of the Football Association over professional footballers. Thus there were some severe criticisms in the press when five members of a football club were suspended after a private hearing at which they were refused legal representation (as is commonly the case in this type of " t r i a l " ) for alleged infringements of the severely restrictive payments rules imposed by the Association. The Economist (April 20, 1957) pointed out that if the Association were concerned with the buying and selling of goods instead of contracts for human beings, the matter might have been tackled under the Restrictive Trade Practices Act of 1956. 40 Davis v. Carew-Pole [19561 1 W.L.R. 833. But cf. Byrne v. ¡Cinematograph Renters Society [1958] 1 W.L.R. 762; and my comment thereon in (1958) 21 M.L.R. 661. 41 See the articles referred to supra, note 32.

Ill

Legal Developments right to earn his livelihood. There remains also the question of purely social bodies without control over anyone's livelihood. In a country such as ours it hardly needs emphasis that group organisation plays a great part in our daily life. A man's membership of social, religious, sporting, intellectual, scientific, artistic or recreational bodies or clubs may be of great importance to him both personally and in respect of his social standing in his particular community. T o be expelled from one's local golf or cricket club may well be a more severe blow to a man's enjoyment and social prestige than he would sustain from a serious financial loss. Yet it still remains very doubtful to say the least how far our courts would be ready to enter into this arena of conflict. The matter is a highly technical one and time will not permit me to examine the exact state of our legal authorities on this matter.42 I must content myself with just casting a glance at the issues that are here involved. It may of course be argued with some force that people cannot or should not be compelled to consort with others whom they do not like or do not wish to mix with. 43 Moreover, it may be said that since a club cannot be forced to accept a member in the first instance why should it not be entitled to rid itself of an unwanted member? Further, on admission to the club a member accepts the rules laid down and he should not, therefore, be able to complain if these do not afford him adequate protection in a subsequent dispute. I am bound to say that I am conscious of the weight and cogency of these arguments, but at the same time I feel also that here is a social problem of some magnitude, and one where one hesitates to accept the view that because of the delicacy of this jurisdiction it is enough for the law to dismiss it with a shrug, and to ignore what may be very real abuses and very shattering invasions of a man's social freedom. It may indeed be necessary to exercise a good deal of care and discrimination in deciding exactly how far it is expedient to introduce the weight of legal coercion into such fields, but one may perhaps recall here Mr. Justice Holmes' pungent comment on what he called " the tyro's question, ' Where are you 42 43

See the observations of Denning L.J. in Lee v. Showmen's Guild [1952] 2 Q.B. 329, at p. 342. Cf. the problem of the application of public policy to the so-called "racial covenants" discussed in the Canadian case, Re Noble & Wolfe [1949] 4 D.L.R. 375; and see on this my Public Policy : A Comparative Study of English and French Law (1953), pp. 143-146.

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The Law of Associations going to draw the line? '—as if [he added] all life were not the marking of grades between black and white."" At any rate, I for my part would be sorry to think that in a case where a man is expelled from a social or recreational body the law should be virtually powerless to investigate his grievance and to order his restoration to membership if that grievance is well founded. The omnivorous and omnipotent state of modern times has indeed become a new Leviathan. This has inevitably resulted in some respects in the Hobbesian situation where the State forces its citizens to do what it considers in their own best interests, however much their personal inclinations may tend in the opposite direction. Thus we can hardly dispute the necessity, however painful, of extracting income tax from the reluctant taxpayer. But equally the modern Western State with all its faults is firmly rooted in the broad attitudes if not the dogmas of its founding fathers, the Utilitarians. Hence the continued emphasis on the value of the individual and the need for preserving his fundamental freedom. Equally it became clear in the course of the nineteenth century, as a result of the long struggle by the trade unions to assert their right to legal existence, that individual freedom is of little worth if it does not include the right to associate together for common purposes not prohibited by law. Yet as the world has moved steadily from an age dominated by laissez jaire into the present collectivist society, it has become increasingly apparent that new encroachments have arisen on those individual liberties which are still regarded as fundamental. In this lecture I have been mainly concerned to show how groups and associations, even such as are formed in the interests of the individual citizen or member, may sometimes exert improper pressures, so as to threaten a man's very livelihood, as well as in other ways. Rousseau objected to such partial associations as tending to encroach on the collective will; we, on the other hand, recognise their essential contribution to the life of the community, while remaining mindful of the fact that they may sometimes restrict unwarrantably the freedom, not of the State itself—which (as Mill pointed out) can look after itself—but of the individuals who compose it. I have also ventured to suggest that our law of associations, while it has produced some recent developments which may be 44

Holmes-Laik} Letters, I, p. 331.

113

Legal Developments applauded, has not shown itself altogether well adapted or equipped to tackle these fresh problems of the century of the common man. Much of this insufficiency may be attributed to two factors, which I think underline how legal systems—perhaps inevitably—tend to lag behind economic and social developments. One of these is the tendency of our law still to proceed on a basis of a somewhat outmoded mid-Victorian laissez-faire liberalism. There can still be detected a sneaking preference for that era in which, as has been said, " There was no God but contract and Sir Henry Maine was its prophet." 45 Hence the feeling, which still prevails to some extent in our law of associations, that a man may make any agreement he likes and the court has no business to interfere with the private and domestic affairs of Her Majesty's subjects. The other tendency is to resolve such problems as arise by seeing whether the issues can be expressed in terms of rather artificially defined legal categories, more particularly the concepts of property and contract. Hence the deduction; no proprietary interest and no contract; therefore, no remedy. My own conclusion is that where the law has gone wrong is in failing to evolve a sphere of association law in its own right,46 instead of trying very largely to seek solutions by an artificial application of the law of contract, and to some extent of trusts. For instance, it is highly artificial to regard the rules of a trade union as no more than a contract between the members. As has been pointed out by Lord Denning, they are more in the nature of by-laws.47 Then take one further illustration. People may group together in a club and establish club premises and incur large debts with tradesmen and others. Those who supply goods on credit doubtless assume they are giving credit to " the club " but do not 45 46

17

Seagle, Quest for Law, p. 266. Such a development might also help to resolve more adequately than at present such special relationships as, e.g., that o£ a professor to his university. The present law is content to define this simply in terms of master and servant. Thus Professor Montrose has recently argued that more suitable analogies to apply here might be either the relation of a partner to his firm or of a member to his association (see J. L. Montrose, " The Legal Relation between a University and its Professors " (1957), Universities Review, Vol. 2, p. 44). But partnership law would require so many modifications for this purpose that more problems would be created than would be solved; and, as the existing law stands, the legal rights of a servant serving under a long-term contract are usually considerably greater than those of (say) a member of a trade union, though admittedly his remedy will sound only in damages: see Barber v. Manchester Hospital Board [1958] 1 All E.R. 322, 331. See Bonsor v. Musicians' Union [1954] Ch. 479, at p. 485.

114

The Law of Associations pause to consider what this means. For in law there is no such being and endless difficulty and expense may result in finding who, if anyone, is really responsible for so-called " club debts." Again, these are highly technical matters which I cannot explore further now. 48 But I should like to add this reflection. Some twenty years ago, when I first began to give thought to these matters and was even rash enough in the ebullience of youth to commit myself to some published views on the subject, I discussed the question whether it might not be desirable for the courts to recognise a de facto entity in such cases so as to enable the club itself to be sued and any common fund rendered liable to satisfy the debts. I pointed out that while this solution had been at least partially adopted in some countries, it should not in any event be regarded as affording support for the childish extravagances of the so-called realist theory of corporations, which attributes an inherent legal personality to all groups by the mere force of nature. At the same time I doubted the desirability of this de facto approach on the ground that it would make the issue depend on the uncertainties of individual litigation.4* I confess that as a result of a good deal of further consideration based on a fair amount of practical experience in the working of our legal system in civil actions, I have come to modify that opinion. I am now disposed to think that a good deal of the technical problems in this field would have been avoided if our courts had had the boldness to adopt this expedient, and I am far from satisfied that it would have resulted in any serious compensating disadvantages. Which brings me back to my point that much might have been done if our law had tackled these problems on the footing that the law of associations is sui generis and must be developed on its own lines, and not simply forced into the strait-jacket of existing legal categories.

48 49

See, for further details, my article "Actions instituted by or against Unincorporated Bodies " (1949) 12 M.L.R. 409. Unincorporated Associations (1938), pp. 4-15.

115

THE

LAW

PROPERTY

OF (LAND) J . A . G . GRIFFITH

THE technical law of real property (or land law) is perhaps open to the criticism levelled by Romilly at the whole judicial system which, he said, was " a technical one, invented for the creation of costs." It is vaguely associated in the minds of those who are not lawyers with fee simples being complicated, with the length of the Chancellor's foot, perhaps with the Forsyte Saga, with dust and theodolites, trespassers not being prosecuted, rights of way, farmers, and how difficult it is to perform a straightforward and natural operation like buying or building a house. " Nothing but a mine below it on a busy day in term time," said Dickens, " with all its records, rules and precedents collected in it, and every functionary belonging to it also, high and low, upward and downward, from its son the Accountant-General to its father the Devil, and the whole blown to atoms with ten thousand hundredweight of gunpowder, would reform it in the least." Dickens's age had, of course, pathetically unimaginative ideas of the potentiality of high explosive. And 10,000 hundredweight is a mere 500 tons. We could do better than that today. But I doubt if we should have more effect than Dickens thought likely. The subject is vast. In one sense it is celestial and subterranean. There is a fiction that a man owns, as part of his land, a coneshaped segment with its point at the earth's centre. It is certainly important that he owns the minerals just beneath the surface. The more remote parts of the infernal regions have not been the subject of extensive litigation. And, of course, he is said to own the airspace above his land, though it may be doubted whether his right is to more than that amount of air which is necessary for the proper enjoyment of the soil and structures affixed to the soil. But I am not going to dig in those depths or sail in those skies. I must be content to restrict myself to the thin and visible crust on which we scratch for a living and a few feet below. All this is enough, without heaven too. 116

The Law of Property {Land) The subject can embrace agriculture, housing, town and country planning, land charges and land taxes, commons, rent Acts, land settlement and improvement, tithes, rating and valuation, forestry, requisitioning, landlord and tenant. And even in this list is not included the first thing a lawyer would think of—the real property legislation of 1922-25. Omissions must be excused, and though they will probably arise from ignorance or inadvertence there is a good case to plead that they are deliberate. It might be interesting and instructive if I were to treat as my theme the way in which some of the provisions of the real property legislation came to take the form they did or how centuries of tradition and breeding have gone to form the substructure on which some judges of the House of Lords today erect their more esoteric decisions. Even if it were not interesting, it would certainly be instructive to me. But that course must not be followed. In the old days, it would have been thought hard, realistic, worthy and respectable to have considered this subject in such a limited context. And a writer might have been thought a sound and learned fellow, albeit a little lacking in imagination, to have so restricted himself. Yet had he followed another course and spoken of sociology or the political and economic implications of these things then, even if he had no more than referred in passing to integrated personalities and the whole man, he might have been suspected of various dubious practices, such as not having his feet on the ground or being led astray by Continental philosophers. How different it is today. If I were now to dally in the paths of contingent remainders, or to pluck roses from the bush of the non-terminable fee, to glance at the conception of seisin or dawdle beside that almost biblical-sounding device, the equity of redemption, I should be quickly moved along like a minor misdemeanant. Get back, I would be told, to the real things. These are trivialities and but serve to pass idle hours. Life is now lived at a quicker pace and in different surroundings. I would be told to speak about the sociological implications of the notions of ownership, the economic implications of the term of years absolute, the psychological implications of the matrimonial home. But for this I am not competent. Scratch a lawyer, and find a mystic. Scratch yet deeper, and find a religion. I mean this literally, etymologically. I mean that a lawyer is bound by certain 117

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types and habits of belief, I had almost said of faith. There are many sorts of lawyers—chancery lawyers, common law lawyers, company lawyers, international lawyers and others. And although some types will scarcely admit certain other types within the stockade, and look upon them with suspicion when they know the password, and can never really regard them as other than spies— think what Dicey would have said if Professor Robson had been introduced to him as an administrative lawyer—yet there is something by which a lawyer can be instantly recognised—a mark of the beast—and by which lawyers, however dissimilar otherwise, are more closely linked than they are separated by their differences. This is what I have called their habits of belief. A man who has had a legal training is never quite the same again. And, what is relevant to my purpose, is never able to look at institutions or administrative practices or even social or political policies, free from his legal habits of belief. It is not easy for a lawyer to become a political scientist. It is very difficult for him to become a sociologist or a historian. Though he may be a legal historian. I think Dicey showed this. When he wrote Law and Opinion, he wrote it as a lawyer. When Sir Ivor Jennings wrote his Cabinet Government he wrote it as a lawyer. And the mental habits of a lawyer are visible on the pages of these books. I think that in many ways they gain thereby. But they also, by the same token, lose thereby. Perhaps there is this to be said on the other side: that when political scientists write about law, they, too, frequently write less acutely than is their custom. Laski is an obvious example. The lawyer cannot claim that land is his particular province, even when he turns it into Latin and calls it real property. His use of the phrase real property shows that habit of mind I spoke of. To a lawyer land is by definition something that is owned, something in which rights subsist and if rights, then duties also. A lawyer thinks in the terms of such relationships. He is not first of all interested in abstract rights, in the rights of man, in the rights of free speech, or personal freedom in vacuo. He is interested in relationships. In rights in something and against somebody, in relation to others. His religion is existential, not essential. This is what is meant by the legalistic approach. The word is normally used critically. Legalism and undue legalism are synonyms. No doubt the critical implication in speaking of a legalistic approach 118

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{Land)

is often justified in the sense that a lawyer will tend to confine himself to rights which are provable and enforceable and will be' reluctant to embark on speculations of an a priori nature. But it should not be overlooked that this approach is also his strength and that he will fight to the death to defend legal rights against persuasive arguments based on expediency or the public interest or the social good. A lawyer reacts instinctively against such vague generalities. He distrusts them. And he distrusts them not only because of his legalism but also because he believes, as part of his mental habits, that they are dangerous and too easily used as cloaks for arbitrary action by those who invoke them. Judicial opinion concerning the statutory powers of public bodies in relation to land has not been altogether consistent. But its general trend is clear. Rooted in the common law conceptions of the nature of property rights, the courts began by leaning fairly heavily against any statutory encroachment on these rights. The traditional dislike of laws made by Parliament, which body the courts have always regarded as a relative novice in this matter of lawmaking, caused them to react against statutory interference with property rights. Judges have not for some time been employed as draftsmen. And the days are long past when they could rebuke counsel who was seeking to interpret an Act of Parliament, with the famous words: " Do not gloss the statute for we know better than you; we made it." Nevertheless, the courts need to be fully persuaded that the Act does enable a public authority to deprive a man of his rights in land. It is really only in the course of the 1930s that the courts began to accept these powers with any grace. In the Second World War the acceptance began to border on enthusiasm. This can no doubt be explained by the particular national emergency of those years. But it was perhaps surprising that this attitude continued when the courts were faced with the legislation passed to deal with post-war problems. Greater discretions were given to public authorities to interfere with property rights in peacetime than had ever formerly been the case. And the courts have, to a remarkable extent, left these discretions untouched. Why has this development taken place over the last thirty years? Principally, no doubt, because judges, like the rest of us, grow up in a particular social and political climate. The judges who were 119

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on the Bench in the thirties had lived through the Liberalism that produced the National Insurance Act of 1911 and had, one may assume, by 1935 become reconciled even to Lloyd George's budget of 1909; they had seen the growth of State power in the First World War and were conscious of the social conditions in the great cities and in the distressed areas. They were, no doubt, of upper middle class or upper class families; had been to great public schools and either to Oxford or Cambridge, in the closing years of the nineteenth century. But their mentality was no more Victorian, or Edwardian, than that of their contemporaries in other walks of life. They could not be called social progressives—they cannot be called so today. But the legal mind is, contrary to popular belief, not a rigid, insensitive or blind instrument. It has a fair measure of flexibility and has, after all, been trained to see what can be said on the other side. To the social needs of the time, I do not think that judges were less sensitive than Cabinet Ministers. It may be objected that this is not saying much. But it is saying enough for the purposes of my argument. After 1945, the situation became a little more complex. The tendency I have indicated—the environmental influences—no doubt continued to be the most important factor. But in the years immediately after the war, it is possible to detect, at least in some of those sitting in the courts, another attitude. Judges were not restrictive in their attitude to the measures of the Labour Government. Sometimes they seemed to be leaning over backwards almost to the point of falling off the Bench, to avoid the appearance of hostility; but also, I believe, it is possible to detect an unconscious attitude that if these were the sort of measures which presumably the electorate had asked for, then the courts would show them just what they had got. In a very recent case, at least two of the five members of the House of Lords held that an owner could not challenge the validity of a compulsory purchase order on the ground that the local authority which was acquiring the land had acted in bad faith. 1 Few lawyers had imagined that the courts would so abdicate from the seat of judgment. Law, however, is more than case law. And judges are not the only persons to hold opinions. 1

Smith v. East Elbe R. D. C. [1956] 2 W.L.R. 888. 120

The Law of Property (Land) Dicey spoke of public opinion as a " prevalent moral atmosphere " and then divided his century into the three periods of old Toryism, Individualism and Collectivism. I suppose he would say that the first half of the twentieth century is a continuance of his last period. His classification is a little difficult to accept. Benthamism is so much more than Individualism, and the modern regulatory State fought and won the battle, which was both first and final, between 1845 and 1860. Be that as it may, if we adopt Dicey's kind of classification and look back over the years 1900-50 we can divide them into the periods of old Liberalism, new Conservatism and modern Statism. Belloc believed that the Capitalist State bred a Collectivist Theory which in action produced not collectivism but the Servile State. It seems more likely that we are on a road which leads neither to freedom nor to serfdom. Or, to put it another way, that we are on the same road we have always trod and perhaps always will tread—a road which for the vast majority of us has high walls on either side, built by other but changing hands. W e may call our present period Statism because it is the State that has built the road and the walls. W e are on a public thoroughfare. I doubt if, for most of us, it differs much from a private street. Nevertheless, something or other, whether it be the State or not, has latterly ensured to many a better standard of living than they had formerly enjoyed. And behind that vague phrase lies, amongst other things, a regulation of other people's property, as well as our own. It is with the nature of this regulation and the forces that have produced it that I am concerned. " Laws," said Dicey, " foster or create law-making opinion." Every new proposal, in other words, has its legislative history. Even revolutions have roots. The history of town and country planning, or of housing, legislation may not be so long as that of agriculture but it stretches back into the time of its primary cause—the growth of the towns. In London, it goes back much further, certainly to the Great Fire. Then, working often on the deficiencies of these precedents, a few men begin to write about the changes which should be made I do not mean that cerebration produces these changes, nor that social and political reform has been largely the result of brainstorms by men with high foreheads. I want to do nothing to add to the current mythology about contemporary Wise 121

Legal Developments Men. What happens, surely, in these fields, is that economic, social and political facts change and that a few people in each generation see the implications and likely consequences more quickly than others. And the proposals put forward, in writings and all other kinds of propaganda, have the effect of attracting attention if they appear novel and relevant. The next stage is often the formation of groups and associations to develop these ideas, to emphasise the nature of the changes that are taking place, and to gather support. These ad hoc and specialist bodies then may persuade the permanent economic and political groups that there is something in it for them. Finally, there may be the establishment of Departmental Committees or Royal Commissions and ultimately legislation in some form—probably far removed from the ideals and aspirations of the original and primary movers—may be passed. Administration follows, the real effects (if any) are seen, the force of practical application pushes the statutory provisions into different and unlikely shapes, alterations become necessary, and, on the passing of the first piece of amending legislation, the real roots are struck. This description of the stages in development is, I think, generally accepted. But in practice nothing happens quite so tidily as that. In particular, it is not unknown for a politician to be immediately affected by a particular piece of writing. If we look to the last few years of the nineteenth century, we find we are in a period when the new ideas were being advanced at the same time by Fabians, on the one hand, and by Utopian writers, on the other. Fabian Essays were published in 1889; Bellamy's Looking Backward in 1887; News from Nowhere in 1891. Utopian ways of life generally imply a period of considerable State intervention which has been followed by a withering away. Utopian writers were concerned perhaps above all to emphasise what environmental bliss was theoretically attainable. William Morris recalled the Trafalgar Square of his day (and indeed of ours): " A great space surrounded by tall ugly houses, with an ugly church at the corner and a nonedescript ugly cupolaed building at my back; the roadway thronged with a swelling and excited crowd, dominated by omnibuses crowded with spectators. In the midst a paved be-fountained square, populated only by a few men dressed in blue, and a good many singularly ugly bronze images (one on the top of a tall column)." But in his dream it became a large open space, sloping 122

The Law of Property

{Land)

somewhat toward the south, the sunny site of which had been taken advantage of for planting an orchard, mainly of apricot trees, in the midst of which was a pretty gay little structure of wood, painted and gilded, that looked like a refreshment stall. From the southern side of the orchard ran a long road, chequered over with the shadow of tall old plane trees, at the end of which showed the high tower of the Parliament House, or Dung Market.2 Edward Bellamy looked backward from the year 2000. This picture of the Boston of that future is less remote from our present reality: " Miles of broad streets, shaded by trees and lined with fine buildings, for the most part not in continuous blocks, but set in larger or smaller enclosures, stretched in every direction. Every quarter contained large open spaces filled with trees, among which statues glistened and fountains flashed in the late afternoon sun. Public buildings of a colossal size and an architectural grandeur unparalleled in any day raised their stately piles on every side." 3 There is perhaps too much of a suspicion of the neo-gothic about this paradise for sympathetic enthusiasm, but it is undoubtedly a planned community. Fabianism was the obverse of this coin. In 1889, Graham Wallas, writing about property, relegated Utopianism to "the early days." He says that by his time Socialists have become " less willing to use their imagination " and are inclined " to give up any expectation of a final and perfect reform." " W e are apt," he wrote, " to regard the slow and often unconscious progress of the time spirit as the only adequate cause of social progress, and to attempt rather to discover, and proclaim what the future must be, than to form an organisation of men determined to make the future what it should be." And he points to the dangers of this attitude. He expected that the community would own the land, and seems to have thought that it would best be vested in local authorities, though mines, harbours and the sources of water supply being " the necessities of the whole nation and the monopolies of certain districts " would be nationalised/ Thirty-one years later, Sidney Webb admitted that for years after 1889 Fabians talked about nationalisation only in general terms. " About the future of 2 News from Nowhere (1902 ed.), pp. 44-45. Looking Backward, Chap. III. * Fabian Essays, Property under Socialism.

3

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agriculture," he wrote in 1920, " whilst we instinctively saved ourselves from any sympathy with a reversion to a peasant proprietary State, we were, in 1889, almost completely unspeculative." 5 Graham Wallas could regard what he called " Mr. Henry George's scheme of universal State absentee landlordism " at best only as a transitory stage towards Social Democracy. For full ownership was " necessary to the most intelligent and effective use of any materials" and so even a drastic system of taxation of rent and interest was inadequate. 8 The corpse of Henry George has been exhumed an unconscionable number of times. But it is necessary to remember that Progress and Poverty was published in 1879 for at least two reasons. The first is that it influenced those who did not save themselves, like the Fabians, from a reversion to notions of peasant proprietorship. The second is that it influenced also those who had more general interests. W e are told that Joseph Chamberlain was electrified by the book; and so was Morley. At the same time they both were affected by Alfred Russel Wallace's appeal for the nationalisation of the land, which Chamberlain thought was predatory. But George's book stimulated his desire to multiply small owners, to break up big estates, to " meditate on taxing urban property to abolish the slums," and especially to tax wealth automatically increased in towns by the growth of the community, without effort to the owner. He would levy on all unearned income and " be hard upon comfortable possessors of slum property." 7 Thus, in Chamberlain's mind, are linked the saving of agriculture, the taxation of urban property, and the rebuilding of cities. Agriculture certainly needed saving during these years at the turn of the century. Reports of Royal Commissions flowed like water but the price of English wheat continued to drop and labour continued to leave the land. The rate liability was halved by the Act of 1896. This was the first important derating provision though there were precedents in the Public Health Act of 1875 and the adoptive Public Libraries Act of 1892, amongst others. Harcourt's death duties of 1894, superseding Goschen's measure of 5 8 7

Ibid., Introduction to the 1920 Reprint. See note 4. J. L. Garvin, The Life of Joseph Chamberlain 124

(1932), Vol. 1, at pp. 385-386.

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(Land)

1889, may in part have impeded recovery. The Final Report of the Royal Commission in 1897 not unexpectedly, though not perhaps altogether accurately, found the cause of the agricultural decline to be foreign competition. But its proposals about land tenure, tithes and small holdings were not likely to solve the problems. Nevertheless, nothing much else was considered in the period before 1914, and there was a minor revival in those years before the war. The year 1907 contained four land bills, of which the most important concerned Small Holdings and Allotments in England. This the House of Lords considerably mutilated. Its principal object was the multiplication of small holdings and allotments and, as introduced, gave some power of compulsion to local authorities. Earlier Acts had been litde operated. The ideas of occupying ownership, peasant proprietorship and agricultural education had been much popularised by Jesse Collings—whose book on Land Reform was published in 19068—and by others. These measures Dicey classified as collectivism9 And The Quarterly Review felt more strongly about the proposals of 1907. " The truth is," an article stated, " that the only equitable method of taking the unearned increment in the value of land for the public advantage . . . is that of buying out all owners at a fair valuation for the nationalisation or municipalisation of the land; and a similar statement would apply to the Government's plans for the multiplication of small holdings and allotments. For either of these tremendous operations the country is certainly not prepared; and the Government have not the courage to propose them. So far, however, as owners of land and other property are concerned, almost any bold measure of socialism would be less harassing and oppressive than the annual crop of semi-socialistic measures which has been the characteristic feature of recent legislation." 10 The land question continued to be asked, as it is today, but in its agricultural aspects, it did not become " the great business " which Chamberlain thought it might. Chamberlain's reference to the abolition of slum property in his meditations on the implications of Progress and Poverty brings me 8 9 10

Jesse Collings, Land Reform—Occupying Ownership, Peasant Proprietary, and Rural Education (1906). Law and Opinion, p. 296. " The Land Policy o£ the Government," in The Quarterly Review, CCVII (1907), p. 244.

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to the beginning of the modern movement for the planning of town and country. This movement stands on the shoulders of the movements for the promotion of public health and the improvement of housing conditions. And to some extent its development was restricted because of this exalted but precarious position. The planning of land-use is essentially a positive activity. When limited either to a control of building or raising standards of construction, its function does not justify the insignia of a new tide. The law relating to restrictive covenants is not therefore an historical precedent, while building by-laws and housing schemes, though more closely connected with the planning of land-use, are still fundamentally different. The movement from restrictive covenants, entered into between private persons for the protection of private interests, to general planning requirements, provided by statute and administered locally, is in one sense a movement from contract to status. But the consideration of the public interest is only partially present in the requirement that statutory by-laws or local schemes shall be complied with. In the case of by-laws in particular, the law is here as much concerned with the protection of weaker private interests as with the more general question. The Housing, Town Planning, etc., Act of 1909 was certainly a development of considerable importance. But, as Dr. Ashworth has written in his history of planning, 11 to which I am much in debt, it was an extension of the attempts to remedy the unhealthy conditions of towns. H e suggests also that the urgency of the demand for further improvement derived in part from the discovery of how high was the proportion of physically unfit persons when prospective recruits for the South African War were examined; and also the economic repercussions of bad health and the growing interest in amenity. Yet the idea that town and country planning was something more than a part of the public health and housing movements was being much discussed. Ebenezer Howard, influenced by Bellamy, published his Garden Cities of Tomorrow in 1898. The Garden City Association was founded in 1899. This Association drew its main support in the early days from the members of the Land Nationalisation Society. In 1903 the Letchworth Estate was purchased and the garden city begun. For this 11

William Ashworth, The Genesis of Modern British Town Planning (1954), esp. Pt. III.

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there were nineteenth-century precedents, including Bournville and Port Sunlight. In 1904 appeared T. C. Horsfall's The Example of Germany and Patrick Geddes' City Development, to be followed eleven years later by his Cities in Evolution. Associations began to emerge. The National Trust was founded in 1895, the National Housing Reform Council in 1900, the School of Civic Design in 1909, the Town Planning Institute in 1913. Other existing bodies such as the Association of Municipal Corporations, the Royal Institute of British Architects and the Surveyors' Institution all gave varying forms of support and assistance. Departmental and other committees in these years included the Joint Select Committee on Housing the Working Classes in 1902, the Interdepartmental Committee on Physical Deterioration in 1904, and the Select Committee on the Working Class Housing Acts Amendment Bill in 1906. In view of all this activity, it is perhaps surprising that the Advertisements Regulation Act of 1907 and the Housing, Town Planning Act of 1909 represent the total product of the early endeavour. The Act of 1909 has been described as a " masterpiece of the obstructive art." Local authorities were empowered, but not required, to act. They had to give owners, lessees and occupiers affected at least two months' notice of their intention to apply to the Local Government Board for consent to prepare a scheme. The remainder of the procedure was similarly protracted and the Act applied only to land which was in the course of development or appeared likely to be used for building purposes. It therefore applied to suburban development. The Act did not provide for the control of building development in the countryside or of the redevelopment of built-up areas. This restriction on scope was not removed until 1932. In ten years from 1909, fewer than ten thousand acres were brought under planning control. Much of the blame for this restrictive attitude has been attached to John Burns, who was President of the Local Government Board from 1905 to 1914 under Campbell-Bannerman and Asquith. To be held responsible for postponing poor law reform for twenty years and having insufficient imagination to foster the town planning movement at this early vital stage is an unenviable reputation. It provided an obvious and striking example of the failure 127

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of opinion to create legislation in anything like its own image. Perhaps we should be impressed that anything like the Act of 1909 happened at all. But this is to take a depressed view of the impact of opinion on politicians. The opinion was not, moreover, so novel or so radical or so inevitably attacking moneyed interests. The history of town and country planning in this century is in fact a depressing history. Time and time again the movement has got onto its feet only to be knocked down. It is true that it has always survived and that each time, while on its feet, it has made progress. But the progress has been three steps forward, two steps back, and this is a disheartening way to advance. In the intervals, while it has been recovering and struggling to its feet again, tremendous damage has been done. And such damage is not quickly or easily reparable. Indeed, now, some fifty years after the movement first received real recognition, it would be difficult to say whether the state of town and country is better or worse than it then was. I suspect that it is appreciably worse and the only comfort is to consider how appalling it would be if the movement had not proved resilient. We are inclined to pride ourselves on our empiricism, our caution and our conservatism. But perhaps, in this context, for empiricism we should read inability to see beyond our noses, for caution we should read fear of novelty, and for conservatism we should read idleness. After the Act of 1909, the town and country planning movement advanced, as I have suggested, somewhat unevenly. Between 1909 and 1919, it has been said, town planners had a period of exuberance. The same thing was to happen for a few years after 1945. The Act of 1919 removed some of the restrictions of its predecessor. Local authorities were now given the wild freedom to prepare schemes without asking the Minister first. The larger towns were actually required to produce schemes before 1926 and the parental Ministry might produce a scheme for any child authority which proved stupid or stubborn. This daring exercise in compulsion, which began to look remotely like the shadow of a shadow of a planning policy, was duly weakened by the extension of the period for the making of schemes by three years. And when, still, many of the children proved stubborn, discipline was not exercised, " boys will be boys," and by 1932 the lesson not to 128

The Law of Property (Land) compel had been learnt. The central powers disappeared. Nevertheless, the Act of 1932 did enable town planning to become town and country and so enlarged the concept of the whole problem. Opinion in this period centred on two controversies. Both concerned the nature of planning. Despite the widening of the concept from town planning to town and country planning, it proved extremely difficult to enlarge the scope in practice. Pardy this was due to the units of local government. Planning authorities were local authorities. But the problems were wider. They concerned whole regional areas. They concerned the whole nation. The Garden Suburb movement was, in this sense, retrogressive. Men like Purdom, Trystan Edwards and Patrick Geddes tried from an early period, even before 1914, to urge the broader approach, but they made little impression. The formation of the New Towns Group in 1918 helped to propagate their views but Howard himself, though a member of the Group, did not believe that it was likely to make much headway with the Government and concentrated on the building of Welwyn as an independent project. Within the larger built-up areas, joint committees were able to think regionally, as in Manchester. In 1927 the Greater London Regional Planning Committee came into being as an advisory body, but it was dissolved after ten years, having achieved litde. Manchester, at Wythenshawe, and Liverpool, at Speke, experimented with the idea of new towns. But the general notion that town and country planning was concerned with the whole problem of land-use over large regions remained one of limited opinion and not of policy. The other controversy was closely connected. I have said that the R.I.B.A. early interested itself in town planning. Partly because of this, the architect became a central person. He was concerned, naturally and rightly, with design of buildings and of groups of buildings. But he was not a sociologist. He was not primarily concerned with the social life of the community. He was not concerned with location of industry, with the distance people lived from their work, with the impact on agriculture, with population trends. Much of the difficulty was that the number of those who were so concerned was very small. The prevention of slums and of overcrowding was thought of in terms of low density building—and this on the horizontal rather than the vertical plane. No doubt general layout of estates improved as a result of this G.T.T.

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attitude. But it was, once again, a narrow view of the purpose of planning, and it consumed vast areas of the countryside without adding to their beauty. The influence of opinion on policy is strikingly emphasised in the recommendations of the Tudor Walters Committee in 1918. This Committee on Building Construction in connection with the Provision of Dwellings for the Working Classes in England and Wales, and Scotland, 12 to give it its full title, recommended the construction of large numbers of two-storey houses with not less than three bedrooms each. Private building was of the same type. The consequences, when combined with the doctrine of low density building, are obvious today. The Committee is not buried in the Abbey. Si monumentum requiris . . . The idea that the use of the nation's land ought to be planned made, therefore, a limited advance on the years before the Second World War. The existing facts, and past practice, were against it. Opinion adheres to what is and some force is necessary to dislodge it and to transfer it to what might be. The planning movement shows this force at work in writings and the formation of associations. It shows also its difficulties. It shows how opinion, even when united in some measure of opposition to the existing state of affairs, easily splits into factions and so weakens itself. But this must be accepted. For it is often better to have warring factions for a time than to have an unhappy, if united, compromise. Nor must the value of example over precept be slighted. Ebenezer Howard and his Garden Cities may have made many mistakes, may have led the movement somewhat astray from time to time. But he showed, within his limitations, that something practical could be done. By the end of the Second World War, Labour Party opinion had firmly accepted three ideas: compulsory plans and the need to obtain planning permission for development—this has proved durable in theory and capable of being softened in practice; the building of new towns—no new projects are being currendy set on foot; and the acquisition by the State of development value—the oldest of the ideas and the least successful. The housing movement between the wars was different again. Here we start in the middle of politics. There is no question of a " B.P.P., 1918, Vol. VII. 130

The Law of Property (Land) group of Utopian writers or idealists seeking to persuade politicians of the wisdom or desirability of housebuilding. Food, clothing and shelter are what politics is about. Homes fit for heroes. And every voter was a hero. But a relatively poor hero and the cost of materials was high. The Addison Act of 1919 subsidised local authorities by guaranteeing deficits on uneconomic rents. Private enterprise building was also subsidised by another Act of the same year which provided £260 for the building of each house, whether it was let or sold. Only 217,000 houses were built with State assistance in four years. Neville Chamberlain's Act of 1923 changed the principle and provided an annual subsidy of £ 6 for twenty years for small houses which might be built by municipal or private enterprise. The outstanding legislative achievement of the first Labour Government was Wheatley's Act of 1924. The subsidy was increased to £ 9 for forty years for houses built for letting by local authorities. Before the subsidy was withdrawn in 1933, the second Labour Government in 1930 passed Greenwood's Act, which seriously aimed at slum clearance by local authorities, again with a subsidy. The National Government concentrated on slum clearance under Hilton Young's Acts of 1933 and 1935. Between 1919 and 1939, local authorities built 1,112,000 houses— nearly half of which were built between 1924 and 1933 under Wheatley's Act. Private enterprise built 430,400 with State subsidy, mosdy under the Chamberlain Act of 1923, and nearly million without subsidy. This last figure reflects the boom in private building in the thirties. By 1939, the middle classes and the best paid of the working classes had no housing problem. In all this, opinion and argument turned, as it has turned more recently, on private enterprise building versus municipal building, on building for sale versus building for letting. In recent years, these contrasts have been accentuated by the shortage of labour and materials and by economic planning for their control. Opinion was political opinion and housebuilding is an obvious batdefield for the rival armies of free enterprise and direction. But between the wars at any rate, and to a large extent since 1945 also, the deeper question of the control of land-use, of the rival claims of industry, agriculture, houses, and open spaces was not much differently answered whether the force was private interest or public works. And, as we have seen, the design and layout of such development took much the 131

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same shape in either case. Public authorities might be more ready to listen to arguments, for example, against ribbon development, first directly controlled by the Act of 1935, but the general appearance, based on the three-bedroom house and low density, was much the same. The Wheatley and Greenwood Acts in 1924 and 1930 were directed at improving the living conditions of the working classes as a deliberate policy. The boom in private enterprise housebuilding after 1933 was not the direct result of Conservative policy but an indirect result of the fall in the rate of interest. After 1945, the Labour Government first restricted private enterprise building very gready and then permitted it to maintain a ratio of one private to four municipal houses. The Conservative policy since 1951 has been to decontrol housebuilding and this has had the effect of increasing the total number of houses built annually, while the rise in the rate of interest and the ending of subsidies—except for slum clearance—has most recently caused the annual number of municipal houses to decline. While the conflicting opinions of free enterprise and public control have, then, in the period since 1945, resulted in two contrasting housing policies, the related question of rent control has been a matter of more or less in policies concealing a real difference in opinion. Between 1915 and 1920, various sizes of houses were brought under Rent Restriction Acts. From 1923 onwards, there was a continuous decontrol by classes, this decontrol sometimes operating only on a change of tenancy. Nevertheless, immediately before the passing of the Act of 1957, ll 1 /* million houses were covered by the Acts and restricted. There had, of course, also been, as there are in the Act of 1957, permissible increases in rents for the houses which remained controlled. Opinion in the Labour Party— for again this is at once primarily a political question—has been consistently in favour of regarding rent restriction of working-class houses as a desirable and permanent part of the national economy. Conservative opinion has been and, I think, is that rent restriction is fundamentally unsound. Again, we return simply and shortly to the roots of political controversy in this country. The idea of a planned economy, which may involve much rent restriction, is something which the Conservative Party accepts only so far as it is considered inevitable and even then with continuing suspicion. 132

The Law of Property {Land) While to the Socialist, though he may be less sure of the methods than he was, planning and control are central to his opinion. In these questions, then, of housebuilding and rent control, opinion is political opinion which, if it cuts deep enough into the flesh of the parties as do these two questions, becomes political philosophy. W e must look for opinion here, not in specialist movements, not in books, not in small groups of men seeking to impress political parties or permanent civil servants or others who have influence, not caring whom they impress so long as he has power, not caring what his politics are so long as they give him a position. None of this. W e must look for opinion in these fields in the heart of politics and in the powerful general interests which uphold the parties. In this lies the contrast with the relation between law and opinion in a field such as town and country planning. Now, certainly, that is over-simplified. But I think the real contrast does exist and I can do no more than point to it. At least this can be said: that between 1933 and 1940 there was a boom in private enterprise housebuilding. In the same period, town and country planning was very weak. Because of the relative strength of the interests concerned, the one opinion abounded and the other was abased. I must now turn to some theories about land ownership which are connected with agricultural questions and select, rather at random, a few of the centres of conflict. Of these the nationalisation of the land is the most obvious. W e have come to associate the idea with Labour Party politics where its formulation as applied to industry was vague at first, as my earlier quotations from Graham Wallas and Sidney Webb show. But it is reasonable, I think, to start the modern movement with Henry George in 1871. In Progress and Poverty he reaches his great conclusion at the end of the sixth of his ten Parts. The whole meticulous and somewhat tedious argument is constructed like a classical tragedy, with the build-up to a point a little beyond halfway where comes the climax, the rest being a natural consequence of the inevitable act. The point where George, so to speak, kills the King is at these words: " T o extirpate poverty, to make wages what justice commands them to be, the full earnings of the labourer, we must therefore substitute for the individual ownership of land a common ownership. . . . W e must make land common 133

Legal Developments property." " I universe do not In saying this, did not regard difficulties.

propose to show," he says, " that the laws of the deny the natural aspirations of the human heart." 13 he did not lack courage, though one feels that he this particular correlation as presenting any major

Now to jump to 1913, where at Bedford on October 11 Lloyd George, as Chancellor of the Exchequer, delivered his so-called (I had almost written self-styled) Great Land Speech. This speech was said to open the Liberal land campaign. Being a good rousing speech, punctuated by hiccups of enthusiasm from the audience, it is not particularly clear. Mr. Lloyd George seemed to suggest as desirable reforms: limitation of the hours of agricultural labourers, wage control, price control of products, improved housing with some land, the protection of the cultivator of the land against confiscation of improvements effected by him, cheaper transport facilities, the recasting of agricultural rating, greater and wider facilities to the State for acquisition of land which is badly farmed. The Liberal Land Conference of 1926 set forth the principle that the right to own and hold land should be conditional on its proper use in the interests of the whole community. For tenant farmers it emphasised the need for security of tenure and the right to compensation for improvement. It wanted County Wages Committees and a County Agricultural Authority including owners, farmers, smallholders, allotment holders and land-workers. This Authority would have power to take over badly managed land " and any other land which in the interests of good cultivation and of the population on the land should be in its control." This is fairly strong stuff. The Labour Party's remedy was much simpler and more vague. In " Labour and the New Social Order " in 1918, the principle is stated as Common Ownership of the nation's land, " solely with a view to the production of the largest possible proportion of the foodstuffs required by the population of these islands under conditions allowing of a good life to the rural population, with complete security for the farmer's enterprise, yet not requiring the consumer to pay a price exceeding that for which foodstuffs can be brought from other lands." This reads perhaps rather more like a statement 13

Bk. VI, Chap. II.

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The Law of Property (Land) of the problem than a solution—but what party policy statement does not? The Labour Party suggested that its object could best be achieved by a combination of national farms administered on a large scale, smallholdings, municipal enterprises in agriculture and farms let to co-operative societies and other tenants, under covenants requiring the kind of cultivation desired, with universal protection, by insurance, against the losses due to bad seasons. " Labour and the Nation," which was the policy statement of 1928, advocates amongst other things that the State should acquire the ownership of the land on equitable terms, and the establishment of security of tenure for efficient farmers. The election programme of 1929, whilst repeating the pledge to nationalise the mines, speaks only of " public control" and not nationalisation of the land. The policy statement " The Land and the Planning of Agriculture " which was adopted at the 1934 Conference spoke of public ownership of agriculture. By 1937 in " Labour's Immediate Programme " this becomes " The land should belong to the people." In " Our Land," published in 1943, this " belonging " was endorsed. " W e believe," said the statement, " that notwithstanding the comprehensive character of the processes involved and the difficulties that would have to be provided against to secure wise administration, this procedure would afford the best, if not the only, way of securing the adequate equipment of land in the interests of good husbandry, and that it would afford the best security and scope for enterprise to good cultivators. A General Enabling Act should be passed giving the State power to acquire all agricultural land and laying down the basis of compensation to the owners . . . W e desire to emphasise that the necessity for the national ownership of agricultural land is too urgent to leave to a very gradual and piecemeal procedure over a long period of years. Acquisition should be carried out as rapidly and on as large a scale as practically possible." And the statement went on to argue that the use of the land should be controlled by County Executive Agricultural Committees then operating as War Committees. A Land Commission would hold all agricultural land belonging to the State and be responsible to the Minister for its administration, equipment and use. With this Labour Party statement of 1943 may be compared one by the National Farmers' Union in the same year. The N.F.U. agreed that in return for the safeguards designed to maintain " a 135

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healthy well-balanced agriculture as an essential and permanent feature of national policy " the nation was entitled to demand of the industry that production and marketing should be efficiently conducted. The statement continued: " The Union does not take the view that nationalisation of the land is essential if the industry's economic problems are to be solved. The landlord and tenant system in British agriculture has served the industry well in the past and is perfectly capable of continuing so to do." To deal with landlords who were so impoverished by the burden of taxation that they were " simply unable to comply" with the rules of good estate management and with those who for purely selfish reasons were unwilling to comply, the N.F.U. suggested that an ad hoc body should be appointed to take over the land. For supervision of good management and good husbandry the N.F.U. favoured the retention of the County Agricultural Executive Committees.14 The ideas, the opinion, at work on this problem can now be seen. There are several possibilities. The first is to deny the State any place in the planning and use of agricultural land. But as both the Right and the Left agree that the industry needs State assistance and is affected by State activity, this possibility does not get to the post. It has no owner, no jockey. We can leave it coughing in its stable. The second possibility is to nationalise the land and then operate some system of control by State owner over tenant farmer, allowing the State some considerable measure of direct management. As we have seen, this possibility was an early favourite. In the Labour Party stable it ranked high in the antepost betting. A third possibility was to leave out nationalisation but to accept some measure of State control in exchange for State protection. This three-year-old—at least that was its approximate age when the Agriculture Act of 1947 was being devised—was by N.F.U. out of Second World War. And it proved to be the only runner. Since the Agriculture Act was a Labour measure, this is perhaps a little strange. But the change had been almost made when the Labour Party published its 1945 policy—" Let us Face the Future." Here, although it is stated that Labour " believes in land nationalisation and will work towards it," only grossly undercapitalised and mismanaged estates were proposed for such control. 14

" Agriculture and the Nation."

136

The Law of Property (Land) When a political party uses this credal form, it is not an affirmation of determining faith but rather a denial of present practicability. Credo quia impossibile. The form which the Agriculture Act, 1947, took was the result, one may suspect, of a general ambiguity in Socialist thinking in this country. Public control is, on general democratic principles, a good in itself. So is efficiency. If we give to efficiency a meaning which includes, in relation to agriculture, not merely the maximum of productivity but also security for the farmer and fair wages for the worker, then public control may or may not lead to greater efficiency. There is never any natural identity between public control and efficiency or between unrestricted private enterprise and efficiency. Indeed, it is likely that efficiency is most likely to be achieved by a measure of public control, more or less. The Labour Party has never, I think, resolved this ambiguity between the virtues of public control simpliciter and the virtues of public control as conducive merely to efficiency. But in the Agriculture Act of 1947, efficiency in the national interest seems to be the criterion. And this is interpreted as meaning a retention of the landlord and tenant system with the State as a kindly but powerful Big Brother who will help all he can and pat his younger brothers on the head but who can put on a sterner aspect if the children show signs of falling down on the job. In agriculture, the peculiarity is that the older of the younger brothers are set to watch the occasional recalcitrant. It is a prefectorial system—in the public school sense —with its advantages, and its possible scope for bullying. But perhaps there is a less philosophic reason for the terms of the Agriculture Act. The Labour Party has never really known a great deal about farming. If the N.F.U. was prepared to accept a fair measure of State control, that was good enough—at least for the time. The Joint Parliamentary Secretary to the Ministry said of the Bill which became the Agriculture Act, 1947: " W e must remodel our economy very drastically; and the crying need . . . is that agriculture must become as efficient as possible. In fact you will find on examination of the Bill that efficiency is the keynote of the whole measure." 15 " 149 H.L.Deb. 112. 137

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To understand the general outline of the Act o£ 1947 it is necessary to look shortly at the earlier story. So far as the relations between landlord and tenant were concerned, the provisions of the common law had proved quite inadequate. The Agricultural Holdings Acts, culminating in the Act of 1923, had been designed to modify the common law and to make special laws with regard to compensation fixtures and security of tenure. At common law, the tenant was in danger of making improvements which would ultimately benefit no one but his landlord. Broadly, the Acts entitled a tenant to obtain compensation for certain improvements made by him, for increased value due to a special standard of farming, for disturbance or for damage caused by game, the first three being payable when he left the holding. Compensation for disturbance was payable if the tenant was given notice to quit by his landlord. The tenant was normally entitled to a minimum of one year's rent for any loss " directly due or attributable to the quitting of the holding." But notice to quit due to bad farming and other grounds did not entitle a tenant to compensation. Under Defence Regulations after 1939, these Agricultural Executive Committees could, with Ministerial approval, take possession of any land and terminate tenancies. If a tenancy were terminated on the ground that the land was being unsatisfactorily used or that a direction of the Committee had not been complied with, no compensation for disturbance was payable. Moreover, the Cultivation of Lands Order enabled the Committees to give directions to carry out anything necessary to the cultivation of land in the way the Committees thought best." Underlying the whole Act of 1947 was a legal change of oudook of first importance. It is nowhere stated, but always assumed, that owners of agricultural land have a responsibility to manage it in a way which puts national interest before their own.17 The negative common law principle sic utere tuo ut alienum non laedas becomes a positive injunction to farmers so to use their own that they promote that national interest. The provisions relating to guaranteed prices and assured markets are intended to be balanced by those which give power to the State in cases of bad husbandry and management. Stability and efficiency are the hallmarks. " S.R. it O., 1939, No. 1078. " See A. Cripps, The Agriculture Act, 1947.

138

The Law of Property (Land) The attempt is made to harness private interest to the public good. If there is one single characteristic which dominates postwar legislation it is this attempted compromise. It is not distinctively socialistic but it represents an advance in State control previously reserved for the emergency of war. It is capable of considerable variation and modification. It has received and will continue to receive different interpretations under Labour and Conservative Governments. But the Socialist has not gone to his logical extremes when he has had the political power. And the Conservative has accepted its principles. It is essentially a precarious compromise. And political passions are most aroused today, whether in relation to agriculture or town and country planning or housing or, indeed, general economic policy, when the compromise seems to be departed from. I am not suggesting that the compromise is either novel or sound. There is a danger in believing that where opposing views are met with, the mean must be the best. There is clearly no reason why this should be so. The mean is merely a third possibility. It has no inherent claim to be better than either extreme. It is followed more often because it is politically more practicable. It is doubtful whether nationalisation of the land, for example, could have been carried through in the years following the war. The opposition would have been bitter and prolonged. And, in the last resort, it is not governments which sow the seeds and reap the harvests, or build houses, or produce goods. If governments take on these tasks, they must be ruthless and strong. Almost inevitably, they must exist for more than one parliamentary period. A five-year plan is not enough on its own. The second five-year plan is part of the first. If the length of parliaments had been extended from seven years to ten instead of reduced from seven years to five, the political and economic history of this country might have been profoundly different. W e seem, by chance, to have hit on a period of power which enables governments to do much but prevents them from being revolutionary or even radical. Whether this is fortunate or unfortunate is a matter for individual decision. At any rate, the Agriculture Act, 1947, is an example of the practicable. I want to mention only the powers of control. Where the Minister is satisfied that a landowner or farmer is failing to comply with the principles of good management or husbandry, 139

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that person may either be placed under supervision and have directions served on him or, if his failure relates to the provision, improvement, maintenance or repair of fixed equipment, he may have a direction served on him without being placed under supervision. The hearing will normally be given by the County Agricultural Executive Committee. Where the owner or occupier, after a period of not less than one year's supervision, fails to show satisfactory improvement in his standard of management or farming, he may be dispossessed. From this decision of the Committee there is a right of appeal to an Agricultural Land Tribunal. The Government today is proposing to end much of this control. Historians will look back on the first half of the twentieth century as the period which saw two world wars and the emergence of Soviet Communism as a European and then a world force. It is not easy today—because we are too near to these events—to estimate their real effects on the climate of opinion. We can see that 1914 marked the end of a social era in this country much more definitely than did 1939. But although it is common to say that the two wars accustomed men to the ideas of State regulation and so both caused and facilitated its growth, the evidence for this is less strong than it appears. Despite the Defence of the Realm Act and the Emergency Powers (Defence) Act of the two wars, despite conscription and the involvement of the whole population in the second war, it may be doubted whether the opinion of men and women in regard to State regulation of property was deeply affected. The growth of that regulation is easily traceable from the middle and later years of the nineteenth century, and neither town and country planning, nor housing, nor agriculture was fundamentally affected by the wars. The social, economic and political movements which produced changes seem to be deeper than these periodic catastrophes. The biggest advance made by town and country planning legislation was the direct result of the three Commissions, on the Distribution of the Industrial Population, Land Utilisation in Rural Areas, and Compensation and Betterment, known as the Barlow, Scott and Uthwatt Reports.18 It is true that the Barlow Report, which determined much of the legislation of 1947, arose in part out of a realisation of the danger in wartime of the physical concentration of industry. But its establishment owed more to the Reports " Cmd. 6153, 6378, 6386. 140

The Law of Property (Land) of the Commissioner for Special Areas (Sir Malcolm Stewart) and the problem of unemployment. Wars draw attention to deficiencies, as, for example, did the first war for electricity and forestry, and legislation sometimes follows. But lessons are not always learned. The first war was three years old before the food problem was really tackled, and that despite the seriousness of the blockade.19 Yet preparations for food supply were almost non-existent in 1938. I doubt if the steady growth of powers for the compulsory purchase of land was much hastened, on balance, by the two wars. Soviet Communism might have been expected to influence at least socialist regulation in this country. But the antagonism between the Labour Party and the Communist Party of Great Britain in domestic affairs weakened the influence. After 1945, Communist ideas might have had a considerable effect had the international relations differed. But suspicion and fear will always prove stronger than feelings of intellectual affinity. As Professor Ginsberg pointed out in the first of the lectures in this series, Nazism bred a great fear of totalitarianism. It is true that there was no deep reaction against centralised power. But there was a measure of caution. More responsibilities were heaped on governments and there was not allied to this a commensurate trust. The tradition of gradualism rather than revolution—of which Professor Cole spoke—continued to be both the temper and the pace of reform. Opinion, then, in relation to property, manifested itself in the various ways I have referred to: in one field, and especially earlier, in books and writings and movements specifically designed to effect particular reforms; later, in the establishment of organisations, on these literary and limited bases, but intended to be permanent organs for the advancement of causes and for propaganda; then, either as a result of what had gone before or because the subjectmatter is at the heart of politics, the promotion of reforms by political parties; sometimes, the establishment of official ad hoc bodies, like Royal Commissions, to report on particular questions. (It is worth noting that such official bodies are not set up until opinion has deposited certain crystals. There is a measure of agreement, a certain hardening at the centre. Controversy may still be considerable but its subject is clearly defined and in 19

Sec S. J. Hurwitz, State Intervention in Great Britain, Chap. XIII.

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Legal Developments that definition certain presuppositions have become acceptable to the antagonists. The establishment of Royal Commissions is in recognition of this measure of agreement.) And then, out of one or other of these later stages, sometimes a piece of legislation. But, in conclusion, it does seem necessary to warn against this somewhat intellectualised approach. Expressed opinion leading by these steps to legislation sounds well. It is a comforting notion. It suggests a proceeding from the wild dreams of visionaries to a testing first by other theories and then by experience. And so, in the fullness of time, to an essence, purified by these processes, with dangerous qualities filtered out, impracticable suggestions detected and removed, and harmful ingredients isolated. This is indeed an unrecognisable description both of the legislative process and of its results. Some believe that our laws could be made like that. An eminent, though now retired, statesman is reported as having said in the course of a recent lecture in this University that the politician's approach to the problems of society should be scientific and there was need of a reappraisal of many of the advances which had been made in the last half-century. It was to the Universities, he said, to those whose life was spent in delving into the mysteries of creation and thought, that statesmen and governments must look for knowledge and guidance so that they might have light to move from the bewildering chaos of our present empirical political efforts. This is the worst sort of nonsense. The problems of political power are not capable of solution by scientific method, any more than the problems of morals are capable of solution by neo-Darwinism. Opinion and knowledge are imperfect manifestations of human prejudices and passions and so remain but partial determinants of the struggle for power. The history of the State regulation of real property in this half-century seems to me to justify this obvious, if mildly obscurantist, proposition.

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B.

GOWER

THE modem businessman would find much to envy in the lot of his predecessor of 1900. Then State regulation of industry and commerce was still at a minimum. The entrepreneur could manufacture, buy and sell what he liked, where he liked and how he liked. Only in his relations with his workpeople was he subject to certain restraints as a result of Factories Acts, Employers' Liability Acts, and Workmen's Compensation Acts, and the growing power of the trade unions. In other respects freedom of contract, the linchpin of laissez faire, still reigned supreme. The issue was not whether the public interest should be protected from private enterprise, but merely whether private enterprise should be protected by tariffs from foreign competition. Nationalisation was just a naughty word—one which is not even mentioned in the index to Dicey's book. Nor is " co-operatives " though some retail traders were already feeling the pinch of competition from cooperative stores and—as Dicey did point out—from municipal trading. And income tax—though it had obviously come to stay— stood at a maximum of only Is. in the £ and estate duty only rose to 8 per cent, and that on estates of over £1 million. Lecturing in 1898 it did not occur to Dicey to refer to taxation either of income during life, or of capital on death. On the other hand, freedom of competition had its disadvantages. The free play of the laws of supply and demand led to a cycle of booms and slumps, and if the businessman of 1900 was free to benefit from the booms he was equally free to suffer from the slumps. He was expected to perform his contracts to the letter and without limitation of liability. Incorporation with limited liability had, indeed, been possible since 1856 but not until much later was it realised that it was legally permissible to form a limited company with as small a number of substantial members as might be desired.1 1

Salomon v. Salomon

[1897] A.C. 22, H.L.

143

Legal

Developments

Perhaps because of this legal vulnerability, the businessman was still deeply interested in commercial law and in its reform and codification.2 On the other hand, he was already showing a marked disinclination to submit his disputes to the jurisdiction of the ordinary law courts. However, in 1895 the so-called Commercial Court was established to try to make litigation more attractive to him and in 1900 it still seemed that this attempt might succeed. I now turn to review the changes that have come about in the last five decades and to an attempt to assess how far these changes were in response to public or business opinion and how far they reflect particular political policies or theories. This I shall do under four heads: (1) Changes in business organisation; (2) The growth of State planning controls; (3) The atrophy of freedom of contract; (4) The changing attitude of the businessman towards the law. Two very important facets of this subject—Labour Relations, and Monopolies and Restrictive Practices—I shall ignore as these will receive detailed consideration in later lectures.3 1. Changes in Business

Organisation

At the beginning of our period the most common type of business organisation was the unincorporated partnership or sole trader. The number of registered companies was, in round figures, a mere 29,000 with a paid-up capital of £1,600 million. Many of these were private companies in the sense that they did not invite public subscription of their securities. But it was not until 1908 that the private company was first given distinct legal recognition and special concessions. The fillip which this gave to company formation was such that by the outbreak of the First World War the number of registered companies had grown to 65,000, with a paidup capital of some £2,600 million, of which about 70 per cent, were private. In response to long-standing pressure from the business 2

This interest had led to the great Mercantile Law Commissions of the middle of the nineteenth century, to the Companies Acts, and to the Bills of Exchange Act, 1882, the Partnership Act, 1890, and the Sale of Goods Act, 1893. The Associated Chambers of Commerce were still pressing for the introduction of limited partnerships and registration of firm names. Mercantile custom had hardly ceased to be a living source of law; during the latter part of the nineteenth century it had introduced into the common law the c.i.f. contract and a new addition to the charmed circle of negotiable instruments was admitted as late as 1902: Edelstein v. Schuier [1902 ] 2 K.B. 144 (bearer debentures). 3 See pp. 173-192, 215-263 and 364-384.

144

Business world, limited partnerships were also introduced in 1908.1 But in this respect business opinion lagged behind reality; little use has ever been made of limited partnerships, the private limited company being so much more advantageous. After the war the number of companies, both public and private, continued to grow until 1929.5 Thereafter the number of public companies declined, though their capital continued to expand, but private companies went on proliferating. There are now about 331,000 companies on the register 4 (over eleven times as many as in 1900). The vast majority of these are private companies, now sub-divided into " exempt" and " non-exempt." For this rather unhappy distinction we have to blame commercial opinion which displays an exaggerated fear that summarised accounting data will benefit trade rivals. So strong is this prejudice that even public companies are not yet compelled to publish their trading accounts. A vivid impression of the extent to which British industry is now incorporated is gleaned from a recent statement by the Chancellor of the Exchequer 7 : the amount of tax payable in respect of the 1956 profits of companies (£1,400 million") is approximately equal to the expenditure in that year on education, health, National Insurance, National Assistance, war-service and non-contributory pensions, family allowances, and milk and welfare foods. And this despite the fact that a large sector of industry has been brought under direct public ownership. The results of these developments have been copiously analysed by lawyers, economists, political theorists and politicians. By now we all know how it has led to a divorce between ownership and control, to " the managerial revolution," to the dehumanisation of the master-servant relationship, to the concentration of industry in a small number of mammoth oligopolistic companies in which the only large shareholdings are those of the Prudential Assurance and other institutional investors, and to the emergence of the company as a socio-political, rather than a mere commercial, institution. 4

Limited Partnerships Act, 1907. Registration of business names, for which the mercantile world had also been pressing (see note 2), did not come until 1916 and then for quite different reasons—to prevent traders with German names from disguising themselves. s When there were 16,922 public companies. • Board of Trade General Annual Report on Companies, 1957. » 578 H.C.Debs., 5th Ser., Written Answers, Col. 131 (November 27, 1957). 8 This includes the tax on distributions to shareholders.

145 G.T.T.

10

Legal Developments It is inappropriate here to explore this analysis further. All we are concerned with is whether these developments are the results of public opinion or of a particular political philosophy. Frankly, I am unable to detect much connection with either. General public opinion has always been somewhat antipathetic to the growth of big business and reluctant to see the individual trader ousted by the impersonal corporation. No political theorist, so far as I am aware, advocated these developments in advance of their occurrence— though some have sought to justify them ex post facto. Only in the post-war nationalisation measures can we clearly detect legal change in direct response to political doctrine9—a doctrine certainly supported by majority opinion immediately after the war. But the extent of this change should not be exaggerated. The result at present has merely been to bring under direct State control certain monopolies operating public utilities. We are still a long way from " common ownership of [all] means of production, distribution and exchange." 10 The present state of the private sector of industry seems to have resulted not from design or policy but from force of circumstances. Mammoth public companies have evolved in response to scientific and technological advances, the demands of mass production and automation, and the cataclysm of war. The drift from unincorporated firms to private companies flowed initially from the inherent advantages to the entrepreneur of the corporate form, especially the advantages of limited liability, and from the chance that floating charges 11 were only practicable in the case of companies. Since the first war, another major inducement in favour of incorporation has been the hope of tax advantages—notably in respect of ploughed back profits. And income tax and death duties 9

10

II

As also with the de-nationalisation of iron and steel and the partial de-nationalisation o£ road transport by the Conservatives. A whole lecture could be devoted to the discussions within the Labour Party and Trade Union movement which led to the form which the nationalisation measures eventually took. They represent a victory for the school of thought which favoured expert boards rather than workers' control. Good short accounts will be found in (1952) 30 Pub.Adm. 27 and (1954) 32 Pub.Adm. 203. This unique English contribution to corporate finance has had to face considerable hostility from public and business opinion. As recently as 1906, the outright banning of floating charges was strongly advocated before the Loreburn Committee on Company Law Amendment, and many Chambers of Commerce, including that of Manchester, were in favour of this course, as were three members of the Committee: see Cd. 3052.

146

Business have led also to the " floating off " to the public of private companies. T o this extent, but no other, we can see the hand of Socialism; it has led to high taxation and high taxation has led to incorporation. 12 Until recently little thought has been devoted by politicians to the organisation of the private sector of industry—the Conservative policy was to maintain it intact, the Liberal to modify it by copartnership, and the Socialist to do away with it and to make it public. But recently the Labour policy has resiled from a doctrinaire Socialist approach and has come to favour a division of the economy into three sectors—public, private and mixed. This new policy, as outlined in the interesting pamphlet—Industry and Society 13—clearly owes much to the writings of commentators such as Berle, 11 Burnham, 15 Drucker, 1 * Sargent Florence, 17 Crosland 18 and George Goyder, 19 and, though perhaps unconsciously and certainly without acknowledgments, to the ingenious Chinese. 20 Nor is this mixed public/private sector wholly without British precedents. It started when a Conservative, Disraeli, acquired for the Government the Khedive's shares in the Suez Canal Company—a precedent which may not be regarded as wholly reassuring in the light of later events. A more recent example was when a Liberal Government was persuaded by Winston Churchill to acquire a majority holding in what is now British Petroleum, Ltd. And acquisition of public control through the acquisition of shares is one of the oft-tried methods of nationalisation. It started under a Conservative-dominated National Government when the shares of Short Brothers were acquired during the war; and acquired, incidentally, at a fraction of the value of the 12

Since the beginning of the Second World War, Credit Control has also contributed to the growth of mammoth corporations which, unlike smaller businesses, have been able to finance expansion out of ploughed-back profits, thus escaping the control. 13 Labour Party Policy Pamphlet, 1957. 4 1 The Modern Corporation and Private Property (1933; with A. G. Means); The 20th Century Capitalist Revolution (1954). 15 The Managerial Revolution (1942). 16 The New Society (1950). 17 The Logic of British and American Industry (1953). 18 The Future of Socialism (1956). 19 The Future of Private Enterprise (1951). 20 The joint Public/Private Sector now in vogue in Communist China has been happily described by The Times (London) (May 16, 1956), p. 13, as a " joyous wedding of private enterprise and State."

147

Legal Developments undertaking,21 thus pointing the way later explored so profitably by the private " take-over bidder." In these earlier cases the State has not been content merely to share in ownership; it has also assumed or shared control through Government-appointed directors. How far that is envisaged as the normal practice in the prospective mixed sector is not clear from the policy pamphlet; the primary aim seems to be capital redistribution rather than public control. But it seems inevitable that the State would soon become the largest single shareholder in companies in this sector and be in a position to exercise effective control. Doubtless the Government might try to avoid exercising its powers —just as institutional investors now try to do. But it hardly seems realistic to suppose that it could successfully work the so-called " Wall St. rule "—that if you don't like what the management are doing you sell out. And any attempt to operate on this basis would destroy one of the features of the scheme which is likely to make it attractive to public opinion. For public opinion has become disturbed by the undoubted divorce between ownership and control. There is argument on whether managements are free from any outside control at all or whether they are bossed by a group of " insiders " in the world of international finance exercising control through interlocking minority shareholdings.22 But what at least is clear is that the shareholders as a whole have no effective control over management. Misgivings have at times become vocal—there was an outcry in 1953 over the Savoy Hotel case23 and more recently there have been attacks on the growing practice of issuing non-voting Ordinary shares thereby enabling managements to retain complete legal control while holding only a minute proportion of the equity. It may therefore be assumed, I think, that if a Labour Government implements their new proposals, private enterprise will be brought under public supervision as never before. And this will inevitably lead to great changes in company law and practice. We shall, for example, have to grapple with the problems posed by multiple directorships. At present the law countenances this 21 22 23

See Short Bros. v. Treasury Commissioners [1948] A.C. 534, H.L. The view expressed in The Insiders (1957), a pamphlet published by the Universities and Left Review, strongly critical of Industry and Society. See the Report of the Board of Trade Inspector, Mr. Milner Holland, Q.C. (H.M.S.O., 1954).

148

Business practice even, apparently, to the extent of permitting the same man to be a director of rival concerns.24 While these concerns are regarded as purely private, public opinion has been apathetic about the resulting conflicts of interest and duties. But it is quite different when one (or both) of the interests or duties is a public one—as the recent inquiry into the alleged Bank Rate leak 25 has revealed. It will be interesting, too, to see how the Conservatives react.24" Will they display the tolerance which Professor Burn detected as one of their reformulated traditions? 29 Or will they insist on disposing of the shareholdings which their Labour predecessors have acquired? Shall we see a reversal of the traditional stock-market reaction to election results? Will prices rise on a victory of a buying Labour Government and fall on a victory of a selling Conservative Government? These, however, are speculations about the future. So far as the last half-century is concerned, I think it is a cause of surprise how little impression Socialist tendencies have made on company law. Successive Committees on Company Law Amendment27 have shown little awareness of, and less sympathy for, these tendencies, and the resulting legislation, whether passed by a Conservative, Liberal or Labour Government has, on the whole, been more conservative than the Committees. Legislation has concentrated on increasing the amount of disclosure—notably through the prospectus provisions and through accounts, where the accountancy profession has exercised a considerable influence on the law. But disclosure is the good old-fashioned laissez-faire principle on which the Companies Acts have always been based. And nothing has been done to impose on the State the obligation of checking the accuracy of the information given. In private enterprise U.S.A. this duty is undertaken by the S.E.C. and by State " Blue-Sky " administrators; London & Mashonaland Exploration Co. v. New Mashonaland Exploration Co. [1891] W.N. 165, approved Bell v. Lever Bros. [1932] A.C., at p. 195. But cf. Scottish Co-operative Wholesale Society v. Meyer [1958] 3 W.L.R. 404, H.L. 2 4 a Their initial reaction has been to encourage the growth of schemes intended to spread share-ownership more widely. This clearly fits their avowed intention of producing a property-owning democracy and shows a belated recognition that the typical property of the twentieth century is stocks and shares rather than land. 25 Cmnd. 350 (January 1958). 2 8 See pp. 44 et seq. 2 7 The Loreburn Committee (Cd. 3052 of 1906); the Wrenbury Committee (Cd. 9138 of 1918); the Greene Committee (Cmd. 2657 of 1927); and the Cohen Committee (Cmd. 6659 of 1945).

24

149

Legal

Developments

in socialised Great Britain it is left to private enterprise—to the Stock Exchanges and to the Issuing Houses. And these citadels of capitalism have been left entirely unregulated—again in marked contrast with the U.S.A. The Stock Exchanges have even been permitted to grant certificates exempting companies from complying with the prospectus provisions of the Act provided their own rules are followed.28 Despite this, when the London Stock Exchange radically revised their New Issue rules last year, though they consulted brokers, bankers and solicitors, they ignored the Board of Trade. Admittedly there has been some State control on the periphery and here we may see the direct influence of public opinion. Misgivings about " sharepushing," led to the reports of the Anderson 29 and Bodkin 30 Committees in 1936 and 1937 and to the Prevention of Fraud (Investments) Act of 1939.30a Notable results of this Act are the control which the Board of Trade now exercises over security dealers who are not members of a recognised exchange and over Unit Trusts—that novel variation of an old institution which came to us from the States in the 1930s. And there has been one highly significant development. I refer to the very wide powers which the Board of Trade now has to appoint an Inspector to investigate the affairs of a company 31 and to institute legal proceedings as a result of his report.32 Here certainly we may detect the influence of the Welfare State. It is now recognised that the individual shareholder lacks the knowledge, inclination and means to protect himself. Accordingly, the protective mantle of the State is wrapped around him and the Board of Trade takes action on his behalf. It has become a recognised first step in a battle with the management to try to induce the Board to exercise its powers. In many cases it has done so. In others its preliminary inquiries have led to a removal of the cause of complaint. In this way, and in other respects too, the Board, which started the century as an " onlooker rather than a continuous supervisor " (to quote its official historian33) has become a watchdog and is rapidly developing into a bloodhound. To keep it in touch 28 Companies Act, 1948, s. 39. Cmd. 5259 of 1936. so Cmd. 5539 of 1937. 30a Now replaced by the Prevention of Fraud (Investments) Act, 1958. 31 Companies Act, 1948, ss. 164-175. ™ s. 169. 33 Llewellyn Smith, The Board of Trade (1928), p. 168.

150

Business with public opinion it has a General Consultative Committee and an Accountancy Advisory Committee of outside experts to assist and advise it. But I suspect that the permanent civil servants prod these Committees into activity more often than the Committees stimulate the civil servants. Sometimes an outside pressure group takes the bit between its teeth. One recent example, which throws an interesting light on the influence of so-called public opinion, occurred in connection with no par shares. For many years academic opinion has advocated the introduction of such shares as likely to avoid misunderstanding on the part of uninformed investors. But informed commercial men were completely apathetic and the Greene and Cohen Committees rejected the proposal on the ground that there was no " public demand." Then, after the war, big business found that these misunderstandings were being used against them by the unions in wage demands. A private member's bill was introduced and the Government appointed a committee to consider the matter. Though there was still a marked absence of interest on the part of the general public, the Committee reported in favour 34 and the Government announced that legislation would be introduced. This was in 1954 but legislation is still awaited; apathy of the general public may not be a deterrent, but hostility of the trade unions is. To sum up. Circumstances rather than opinion seem to have led to the present organisation of business. But political doctrine directly or indirectly has played some part, notably in connection with nationalisation. The probability is that it will play a much larger part in future. 2. The Growth of State Planning Controls I now turn to my second head—the growth of State planning controls. If time permitted it would be possible to trace in detail the tentative and haphazard growth of such controls during the First World War when they were introduced only in the face of the prevailing climate of public opinion and after their necessity had been all too clearly demonstrated by events.35 It could be shown how, after this war, they were scrapped with incredible "

35

Cmd. 9112 of 1954. An admirable account will be found in E. V. Morgan, Studies in British Financial Policy, 1914-1925 (1952).

151

Legal Developments rapidity in response to pressure from businessmen and officials,34 and how, during the inter-war years, protection37 and taxation were the major characteristics of State interference with business.38 A graphic picture could be painted of the businessman during the Second World War experiencing his second dose of State planning —a far more potent one, with monetary, fiscal and physical controls welded into a coherent system.3" It could be shown how the need to placate public opinion—British and sometimes American 40 — influenced the shape of many of the wartime regulations and the influence could be traced of Labour and the trade unions, of business interests and of academic opinion/ 1 But time does not permit of any of this and I therefore content myself with a few words on the main types of fiscal, monetary and physical controls which still remain with us. First, a word about fiscal and monetary controls. Of all the State interferences with the freedom of the businessman, probably the one which weighs most heavily upon him is the compulsion to share the spoils with the State. This, of course, is not a burden imposed only on business, but direcdy or indirecdy it is business which is the major source of national revenue. Sharing of net 38 37

38

39

40

Morgan, op. cit., pp. 59 ct seq. In the form of tariffs, quotas, subsidies, export credit guarantees, and the encouragement of rationalisation schemes (normally voluntary but occasionally supplemented by compulsion as with the levy on cotton spinners in the 1930s). As Walker points out (in [1956] Jur.Rev. at p. 124) the inter-war period revealed a growing public conviction that it was up to the State to assume responsibility for the economic situation: in the 1930s the unemployed workmen in the depressed areas did not break the windows of their former employers; they marched to Westminster, and Westminster, where Labour was now strongly represented, responded by passing the Special Areas (Development and Improvement) Acts, 1934-1937. See especially, Sayers, Financial Policy 1939-1945 (1956) and Hargreaves and Gowing, Civil Industry and Trade (1952) in the History of the Second World War, Civil Series. After the Lease-Lend Agreement of September 1941 steps had to be taken to try to prevent the re-export of lease-lend goods and goods in short supply in the U.S.A. And, after the war, trade with China was restricted in deference to American opinion. In addition to the examples mentioned later, attention may be drawn to the way in which steps were taken to educate public opinion to accept compulsory saving through taxation (even Churchill boggled when income tax was raised to 10s. in the £—see Sayers, Financial Policy 1939-1945, p. 78); to the way in which Labour and the trade unions were reconciled to purchase-tax by coupling its introduction with all-round tax increases; to the way in which physical controls were only introduced after full consultation with the interests concerned, an elaborate edifice of consultative and advisory committees being erected for this purpose; and to the use of persuasion rather than compulsion ("voluntary" dividend limitation, "voluntary" concentration of industry, "voluntary" fair-share quota schemes, etc.).

152

Business profits used to be regarded as the hall-mark of partnership; today the State gets the major share of distributed business profits and to that extent is already the senior partner in most firms. As already pointed out, taxation was ignored by Dicey in his first edition. Liberal government, as he later said, " meant cheap government" 42 and taxation was merely regarded as a means of raising the necessary money to run the minimum of essential State services. But already there were straws in the wind. A graduated tax on income had been described by Gladstone as " tending to Communism"; the principle had nevertheless been applied to taxation of capital on death by the Finance Act of 1894. When the Liberals came to power in 1905 the system was extended to income tax also; a lower rate on the smaller range of earned income was introduced by the Finance Act of 1907 and a graduated super-tax by the Act of 1909-10. Thereby taxation was openly recognised as an instrument of redistributing wealth and had ceased to be merely a means of raising essential revenue. These developments were not lost on Dicey when he wrote the introduction to his second edition, published in 1914. He was alarmed both by the use of taxation as an instrument of social policy and by its burden. The standard rate of income tax was then Is. 8d. (having just been increased from Is. 2d.), the highest rate of super-tax was Is. 4d., and the maximum rate of estate duty (on estates of over £1 million) was 20 per cent. These, plus the burden of local rates, struck Dicey as so heavy that he seriously doubted whether England would be able to survive a war! 43 If he had had the advantage of reading the works of later economists he would have realised that in fact we nearly lost the war because we were not taxed highly enough. For the lack of sophistication displayed during the First World War by successive Chancellors is now universally condemned. There was little recognition by anyone of the dangers of inflation or of the way to combat it. The only discernible principle was the McKenna doctrine, that taxation should raise enough to cover interest and sinking fund on borrowings.44 42

«

Law and Opinion, 2nd ed., p. lxxxvi. Ibid. " . . . surely one of the strangest principles ever laid down in the history of public finance": E. V. Morgan, Studies in British Financial Policy 1914-1925, pp. 92-93.

153

Legal Developments The fantastic lightness (by modern standards) of the wartime taxes clearly reflects not only a lack of understanding of the principles of public finance but also the general climate of public opinion so clearly exemplified by Dicey's discussion. The need for monetary control was even less understood. The Government's response to the outbreak of war was a general moratorium and a panic increase of the bank rate to 10 per cent.; neither has commended itself to experts of a later generation. There was never any attempt to introduce full-fledged Exchange Control; Keynes said later 45 that " complete control was so much against the spirit of the age that I doubt if it occurred to any of us that it was possible." However, restrictions were imposed on new capital issues. The method employed, Treasury consent given on the advice of a Capital Issues Committee manned by outside experts, was the prototype of that adopted in the last war. After the war, rates of taxation never fell to anything approaching their pre-war levels. Instead there was a progressive increase, especially in the higher brackets of super-tax (later renamed surtax) and of estate duty. Stringent anti-evasion steps were also taken, notably to prevent the avoidance of surtax through the formation of private companies. When we were forced off the Gold Standard in 1931 there was a brief experiment with Exchange and Capital Issues Controls and thereafter informal control of foreign issues. But it was not until the Second World War that fiscal and monetary controls really came to be employed as instruments of national economic planning. The policy of the 3 per cent, war and of budgeting to fill the inflationary gap was directly referable to academic opinion and, in particular, to the influence of one man —John Maynard Keynes—and his disciples now installed within the Treasury and Cabinet Office. By the time of Kingsley Wood's stabilisation budget of 1941, budgetary policy had ceased to be a mere balancing trick and had become a means of enforcing saving through taxation on the lines of Keynes' famous pamphlet How to Pay for the War. In 1943 the introduction of P.A.Y.E. (pay-as-you-earn) brought another revolutionary change and one which greatly increased the burden on the businessman by forcing him to act as a tax collector. This change was a conspicuous example of response to public «

In September 1939.

See Sayers, Financial

154

Policy

1939-1945,

p. 227n.

Business pressure, exerted both inside and outside Parliament (including pressure from the trade unions) and its application to all employees (instead of just to weekly wage-earners as originally intended) was the direct result of public demand. Closer control of Capital Issues had been recommended by the pre-war Phillips Committee46 and was brought into operation immediately. In fact, as Keynes had foreseen,47 it proved somewhat ineffective under war conditions for its ostensible purpose of checking the use of real resources for inessential purposes; rationing of supplies accomplished that more effectively. It was used mainly to groom the market for government issues—hence the justification for applying it to issues in which no new money was raised. The ban on bonus issues was, in addition, designed to placate Labour and the trade union movement and to be a quid pro quo for their agreement not to press for compulsory dividend limitation. Rigorous exchange control was introduced with greater hesitation, partly it seems because the Treasury displayed a typically British reluctance to follow a foreign precedent.48 And when introduced the control mechanism was very different from that of Dr. Schacht's mammoth German machine. By an equally typical expedient, enforcement was left to private agencies—the banks.49 By virtue of the sophisticated use of these fiscal and monetary controls, physical controls, though extensive by any previous standards, never amounted to over-all rationing or regimentation; in effect the economy was divided into two parts, one (the utility sector) being closely controlled with full rationing and fixed prices, the other (the luxury sector) being relatively free with sharply rising prices and no assurance of maintenance of supply. The result of wartime planning clearly commended itself to public opinion, and the overwhelming Labour victory of 1945 reflected an attitude towards State planning very different from that of 1919. This time there was to be no precipitate scrapping of controls when the war ended. Physical controls might gradually 48 47 48

49

Committee on the Control of Savings and Investment (unpublished), but see Sayers, Financial Policy 1939-1945, p. 164. Sayers, Financial Policy 1939-1945, p. 167. lbtd., p. 227. But an economist enlisted as a civil servant succeeded in persuading the Government to follow the German model in adopting the points system of rationing clothes and confectionery. Later they were also used as the channel for collecting clothing coupons: see Hargreaves and Gowing, Civil Industry and Trade, p. 305.

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Developments

be relaxed, but Labour, as a matter of principle, favoured the retention of financial controls. Accordingly, Capital Issues Control 50 was placed on a permanent statutory basis by the Borrowing (Control and Guarantees) Act, 1946, which extends not merely to the issue of securities but to any borrowings in excess of the statutory limit of £10,000 per annum. The modus operandi remains as before; the Treasury grants or refuses consent on the advice of the Capital Issues Committee (which still has no statutory basis whatever) and this, in turn, acts in accordance with directions given to it from time to time by the Chancellor of the Exchequer. These directions led to a gradual loosening of the reins until 1954 when it was being seriously questioned whether retention of control was really needed. Thereafter the Act was applied with increasing severity until the end of the " credit squeeze " in 1958. Commercial opinion has throughout borne this control with a surprising absence of complaint. The chief grumbles have been about its continued application to bonus issues; the somewhat illogical attitude which successive Chancellors have adopted towards these issues can only be accounted for by the continued prejudice against them in trade union circles.51 Orders made under the Act have always exempted borrowings from bankers in the ordinary course of business. Accordingly, the banks would have had it in their power to drive a coach and horses through the control. And banks, as we have seen, also perform an important role in the enforcement of Exchange Control —also put on a permanent footing by the Exchange Control Act of 1947. This has meant that the businessman has become more dependent than ever on banking services. It has also meant that the banks have become an integral part of the State mechanism—a development recognised by the earlier Labour measure, the Bank of England Act, 1946. This did more than place the Bank of England under direct Government control; it also expressly authorised the Government to give legally binding instructions to the commercial banks. So far as is known this power has never been 50 51

The primary objcct of this control acquired a new importance as rationing of supplies was relaxed. In February 1959 control of domestic borrowings and share-issues was lifted. Control of bonus issues had been reduced in July 1958, but consent is still needed for bonus issues of redeemable securities and general control can be reimposed at any time.

156

Business exercised, and the whole Act has been described as symbolic rather than revolutionary. Symbolic it may have been, but it symbolised a very real change that has come about in relations between the Treasury and the banks in recent years. We know that at the beginning of the war the Governor of the Bank of England was reluctant to hand on to the commercial banks anything approaching definite instructions about credit policy, and the banks were equally reluctant to give undertakings to comply.62 Now instructions, albeit still cast in the form of requests, pass freely, and are, voluntarily, obeyed; if the legal sanctions have not been used it is because there has been no need to use them. Armed with this new control over the banking system post-war Governments have adopted a more active monetary policy—at first to maintain cheap money and latterly to introduce tight money and the " credit squeeze." 53 Fiscal controls have also been maintained; all Chancellors have continued to work to Keynesian arithmetic and to budget for a surplus to fill the inflationary gap. Income taxes have remained incredibly high. Purchase tax is still with us. So is profits tax, which now applies only to corporate traders. Since the war it has principally been used, not very effectively in recent years, to encourage obedience to the policy of " voluntary" dividend limitation—a policy which is a clear illustration of a response to one section of public opinion. Nor has there been any real retreat from the use of taxation as a means of redistributing wealth; both Labour and Conservative Chancellors have increased the higher rates of estate duty. Increased use has also been made of tax reliefs and abatements to encourage particular developments thought desirable in the public interest. In these ways the State, though it may no longer attempt to control how the businessman uses the money available to him, nevertheless limits severely the amount at his disposal. While it would be naive to suggest that high taxation is popular either with businessmen or anyone else, it is now recognised that it serves a vital need transcending that of paying for public services or bleeding the rich. Recognition of this is reflected even in the

53

Sayers, Financial Policy 1939-1945, pp. 184-185. At this time, too, the bank rate was raised without, it seems, the Chancellor of the Exchequer understanding why {ibid., p. 157); one hopes that this could not happen today. Control through the banking system has been supplemented by a greater readiness to engage in open market dealings.

157

Legal Developments judgments of the courts. 51 Today they adopt a much more friendly attitude towards the interpretation of taxing statutes and a much less complacent one towards schemes of tax avoidance.55 And they now recognise the all-pervasive rule of taxation by taking its incidence into account when assessing damages.56 The fact that all sections of the community are now reconciled to a system of compulsory saving and redistribution through taxation is perhaps the most startling illustration of the change from Liberal ideas during the last half-century. Very different has been the fate of the wartime physical controls. Though at first maintained more or less intact under the Supplies and Services Acts 5 7 there was a considerable relaxation towards the end of the first Labour administration and a much more drastic purge thereafter. Election results have clearly been treated by the political parties as expressions of a wish for freedom rather than control. On the whole this is probably a correct diagnosis of public opinion. An overdose of Crippsian austerity had inclined the patient towards a different medicine. But I fancy that he would still have preferred to stick to the mixture-as-before if convinced that this alone could maintain " fair shares" and full employment and control inflation. And I am sure that the scrapping of some of the wartime controls was genuinely regretted by the man-in-the-street—notably the utility clothing and furniture schemes which had done much to improve public taste and afford a guarantee of quality. A new public interest in the work of such bodies as the British Standards Institute and the Association for 54

55

56

57

This is well illustrated by the recent decision in Regazzoni v. Sethia [1958] A.C. 301, where the House of Lords virtually overruled the oft-repeated dictum of Lord Mansfield that ' ' no country ever takes notice of the revenue laws of another" (in Holman v. Johnson (1775) 1 Cowp. 341, at p. 343). Lord Reid (at p. 324) significantly observed that the older cases dated from a time " when theories of political economy now outmoded were generally adopted." This development has been often remarked, though it has been suggested that there have recently been signs of a reversal to the earlier view. This reversal seems mainly detectable in cases on death duties where the frank emphasis on redistribution of wealth can hardly be congenial to the judges. British Transport Commission v. Gourley [1956] A.C. 185, H.L. Taxation's all-pervasive role is also reflected in a joke which is now popular: In the past, it is said, the British businessman took his secretary to Pans and said she was his wife; now he takes his wife and says she is his secretary. Supplies and Services (Transitional Powers) Act, 1945; Supplies and Services (Extended Purposes) Act, 1947; Emergency Laws (Miscellaneous Provisions) Act, 1947; Supplies and Services (Defence Purposes) Act, 1951. These Acts, though of temporary duration, have hitherto been extended from time to time, but will be drastically curtailed by the Emergency Laws (Repeal) Bill introduced in November 1958.

158

Business Consumer Research seems directly referable to the influence of those wartime guarantees of value for money. It was the pressure of business opinion—rather than that of the public at large58—which was mainly responsible for the scrapping of direct controls. This, I think, was not primarily because of opposition to controls or State planning as such. Today the businessman is surprisingly reconciled to these provided that someone else does the work of controlling and planning. What he particularly resents is the work imposed on him. P.A.Y.E. forces him to act as a tax-collector, the National Insurance legislation forces him to maintain and stamp his employees' cards, and the maintenance of physical controls imposes on him an enormous burden of form-filling and recording. In conditions of full employment he resented bitterly that his inadequate staff should be made to labour in a manner so unprofitable to himself. Hence, through his Trade Associations and Chambers of Commerce, he carried on a ceaseless batde for freedom which has now achieved a very considerable measure of success. In a democracy such as ours a planned economy demands the co-operation both of the general public (which will only be forthcoming if full employment is maintained) and of the businessmen whose operations are to be planned (and in conditions of full employment businessmen are not eager to co-operate). This is the dilemma which Labour will face when they are given an opportunity of implementing their declared policy of reintroducing " selective " controls. Viewing the situation at the beginning of 1958 we can only conclude that business is once again singularly free from physical controls. Generally speaking, the businessman (if he can raise the money) can manufacture, buy and sell what he likes, to whom he likes, on what terms he likes. T o this, of course, there are important exceptions. Foreign trade is still subject to many import and a few export restrictions, and to the very important restraints of Exchange Control. Town and Country Planning Acts and Distribution of Industry Acts restrict new factory building. Borrowing and credit controls, which operate indirectly on most enterprises, are direct curbs on the banker and financier. An increased (though still inadequate) awareness of the importance of 58

T o this extent history repeated itself: cf. supra,

159

p p . 151-152.

Legal Developments statistics has led to the continuance of a certain amount of the formfilling which businessmen so resent. State assistance to industry has continued to grow and in this way the State, though it does not compel, persuades and guides. This persuasion is made more effective by retention of the wartime practice of consultation and liaison with industry—a practice which, of course, imposes a further burden on the businessmen who serve on the innumerable advisory bodies which have been set u p . " And that significant development of the century, the hire-purchase business, still remains subject to rigorous control as regards initial deposits and duration of hiring.59® This is, perhaps, the most important of the controls still operated under the Supplies and Services Acts and the Government has recently declared its intention to introduce legislation placing it on a more permanent basis. So far it has proved singularly ineffective as a curb on domestic spending—possibly because the Government has given way to pressure from manufacturers to relax it whenever it shows signs of achieving its purpose. The new legislation will also attempt to deal with the self-styled " industrial bankers" through whom hire purchase is financed. By offering to accept deposits at a very high rate of interest these institutions have found a way round borrowing control and, incidentally, round the protection of investors afforded by the prospectus provisions of the Companies Act and the Prevention of Fraud (Investments) Act. Generally speaking, however, the only controls now operating are those exercised indirectly through taxation and credit and exchange control. Considering the length to which Britain has gone with her social services, it is perhaps surprising that she has not ventured further with socialisation of business. In the economic sphere the various cross-currents of opinion to which Dicey drew attention seem at present to have led to an uneasy compromise between public control and private enterprise. This uneasy compromise is probably an accurate enough reflection of British public opinion; it is ready to It was said that in 1949 there were no fewer than 700 central or national advisory bodies: 460 H.C.Deb., 5th Ser., cols. 15-16 (January 18, 1949). Cf. K. C. Wheare, Government by Committee (1955) and the PEP Planning Pamphlet, The Growth of Government (1957). 5 9 a These controls were removed in October 1958 but power to reimpose them still remains. 59

160

Business compromise in the hope of getting the best of both worlds, but uneasy that it may be getting the best of neither. 3. The Atrophy of Freedom of Contract I now turn to my third head, the decline of freedom of contract. Certain important aspects of this have, of course, already been touched on. But hitherto I have dealt only with such restrictions on contractual freedom as have been imposed in the interests of State planning of national resources. I want now to draw attention to two other aspects; first, to the extent to which business practices themselves have altered the basic nature of a contract, secondly, to the response of the legislature and the courts to this development. Much has already been spoken and written about the way in which business contracts have ceased to be the result of joint bargaining about terms and become instead the mere adhesion to standard forms.60 Sometimes, as in the standard building or construction contracts of the R.I.B.A., or the Institution of Civil Engineers, these standard contracts are drawn up by a more or less impartial body. More often they are prepared by one party, or his trade association, solely in his own interests; insurance, laundry and dry-cleaning contracts, building society mortgages, hirepurchase agreements, and bank guarantees are conspicuous examples of this class. So are contracts of carriage or for the supply of gas, electricity and other fuels. The only freedom then left to the other party is freedom to take it or leave it, and even this freedom may be illusory if the party proffering the standard-form contract has a monopoly or, as may well occur, if all firms in the same line of business adopt virtually identical terms. This " misuse of contract" has, in Scott L.J.'s words,61 sometimes caused the legislature " to substitute status"—thus contributing to the oft-remarked reversal of the trend from status to contract detected earlier by Sir Henry Maine. Mr. Sales, in his admirable article on this subject,62 points out that the intervention of the legislature has taken many forms.63 See, especially, Prausnitz, The Standardisation of Commercial Contracts (1937); Sales, "Standard Form Contracts" (1953) 16 M.L.R. 318; and Walker, " L a w and Opinion in Britain since 1900" [1956] Jur.Rev. 117, at p. 213. « Henson v. L. N. E. R. [1946] 1 All E.R., at p. 657. " (1953) 16 M.L.R. 318. 63 hoc. cit., at p. 327. 60

161 G.T.T.

11

Legal

Developments

Statutes " may make the insertion of certain clauses illegal or ineffective or both; they may make compulsory the insertion of certain clauses; they may make compulsory the adoption of a certain form of contract; they may provide that certain clauses shall be deemed to have been incorporated or adopted unless they have been expressly or impliedly negatived; they may provide that certain clauses shall not be incorporated in a contract unless special steps are taken to bring them to the attention of the customer; or they may simply require that certain steps shall be taken to bring to the notice of the customer certain clauses of the contract or provisions of statutes relating to it." Mr. Sales gives examples of all of these, some of which (for example, those relating to bills of sale and pawnbrokers) ante-date the turn of the century. He also points out that the Government has sometimes persuaded trade associations to drop objectionable clauses by threatening legislation unless they do. It was threats of this nature, after public disquiet had led to questions being asked in the House, that persuaded the railway companies and the launderers to mend their ways to some extent, though laundry conditions are still far from satisfactory and unfair conditions on cheap day railway tickets were not finally eradicated until after nationalisation. Nationalisation has, indeed, played an important role in the outlawing of unfair clauses, for nationalised industries are, of course, more directly susceptible to the pressure of public and political opinion. So, in contracts of carriage by sea or air, have international conventions. Perhaps the most extreme example of legislative interference is in relation to hire purchase. This is a subject upon which public opinion has proved very sensitive and all three Acts at present on the Statute-book "—those of 1938, 1954 and 1957—started as private members' bills. It is interesting and instructive to compare the protection of the hire purchaser under these Acts with that afforded the out-and-out buyer of goods under the Sale of Goods Act, 1893. The latter's only protection against the harsh laissez-faire principle of caveat emptor is that certain conditions of quality and fitness may be implied in the absence of agreement to the contrary. Contrast the protection afforded a hirer under an agreement within the Hire Purchase Acts. The difference between the cash price and the 64

The Hire Purchase Act, 1938; the Hire Purchase Act, 1954, and the Advertisements (Hire Purchase) Act, 1957.

162

Business total hire-purchase price must be drawn to his attention, he must be given a memorandum of the contract and a statement of his rights which must be signed by him personally (an agent's signature will not do), certain harsh provisions are banned outright, various conditions of fitness are implied and contracting out of most of these is forbidden and when allowed must be done clearly and specifically. Even the nature of advertisements is now controlled. Note, too, how the Acts contain another socialistic feature which would have offended Dicey; in effect they discriminate in favour of the poor, for it is only where the total rent is below prescribed limits that the hirer is protected.65 On the whole, however, these examples of statutory interventions cover a remarkably small part of the field. There can be few countries, for example, where the insurance companies are allowed the same freedom to dictate their own terms.66 And there is still considerable reluctance to interfere; the English Law Reform Committee recently refused to express an opinion on whether it was socially desirable,67 while the Scottish Committee 68 came out uncompromisingly in favour of the retention of freedom to dictate. The courts, on the other hand, have in recent years responded to the new climate of opinion by making it increasingly difficult for one party effectively to exclude his normal responsibilities. He has first to satisfy the court that the exclusion clause was effectively incorporated in the contract.68 If he succeeds, the clause will be strictly construed against him: an exclusion of " warranties" will not cover implied " conditions," 70 notwithstanding that businessmen habitually use the former to cover both terms, as the draftsman of the Sale of Goods Act recognised.71 The clause will not 65

Except as regards advertisements; the 1957 Act applies without financial limits. Note, too, how the Acts reflect the change in the social structure between 1938 and 1954. Ellen Wilkinson's Act of the former year only covered motor-vehicles if the total hire-rent did not exceed £50—with most other goods the limit was £100. Now the limit for all goods is £300. The automobile is coming to be recognised as a necessity for people in every walk of life.

There are limits in the case of Industrial Assurance and the terms of third-party motor insurance are, in effect, dictated by the provisions of the Road Traffic Acts. « Cmnd. 62 of 1957. « Cmnd. 330 of 1957. •9 Olley v. Marlborough Court, Ltd. [1949] 1 K . B . 532, C . A . ; Hurling v. Eddy [1951] 2 K . B . 739, C.A. •"> Wallis v. Pratt [1911] A.C. 394, H . L . ; Hurling v. Eddy, supra; cf. Andrews v. Singer [1934] 1 K . B . 17. 7 1 Sale of Goods Act, 1893, s. 11 (1) (b). 66

163

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normally be construed to exclude liability in tort72—a liability which has become much more extensive, especially as regards manufacturers, since the revolutionary decision of the House of Lords in Donoghue v. Stevenson.T3 Its effect will be strictly limited to parties to the contract/4 It may be rendered ineffective by an independent oral contract which the courts will be astute to spell out." It cannot be relied on if the other party has been induced to accept it by misrepresentation—even an innocent misrepresentation as to its legal effect.7' It cannot justify a failure to perform " the core of the contract." 77 And a party who has committed a fundamental breach of the contract will not be allowed to rely on any exclusion clause in it. 7 ' If all these hurdles are surmounted freedom of contract prevails; it seems that the courts will then enforce the clause however unreasonable it may be, although Lord Denning would be prepared to go still further and require that it should be proved that the clause has been specifically brought to the notice of the other party.7* But even without going this further step a formidable barrier has been erected to protect the weaker party. A similar attitude can be detected in the development of the doctrine of commercial frustration. At the beginning of the century the only circumstances in which parties were excused from performing their contracts were when performance had become physically impossible. Under the new doctrine, evolved as a result of two world wars, two postponed coronations and the growth of import, export and exchange controls throughout the world, the courts now exercise a dispensing power wherever circumstances ™ Alderslade v. Hendon Laundry, Ltd. [1945] K . B . 189; White v. John Warwic\ [1953] 1 W . L . R . 1285, C . A . Cf. Woolmer v. Delmer Price [1955] 1 Q.B. 291. ™ [1932] A . C . 562, H . L . Adler v. Dic\son [1955] 1 Q.B. 158, C . A . But cf. Elder Dempster &• Co. v. Paterson Zochonis Sf Co. [1924] A . C . 522, H . L . ; and Pyrene Co. v. Scindia Navigation Co. [1954] 2 Q.B. 402. ™ Couchman v. Hill [1947] K . B . 554, C . A . ; Webster v. Higgin [1948] 2 All E . R . 127, C . A . ; Harling v. Eddy, supra. And note how the courts have thereby imposed liability on the dealer who disposes of goods on hire purchase: Brown v. Sheen & Richmond Car Sales [1950] 1 All E . R . 1102; Andrews v. Hopkinson [1957] 1 Q.B. 229; cf. Shan\lin Pier Co. v. Detel Products [1951] 2 K . B . 854. T* Curtis v. Chemical Cleaning &• Dyeing [1951] 1 K . B . 805, C . A . " Karsales (Harrow) Ltd. v. Wallis [1956] 1 W . L . R . 936, C . A . 78 Alexander v. Railway Executive [1951] 2 K . B . 882. " Dennis Read v. Goody [1950 ] 2 K . B . 277, at p. 287, C . A .

164

Business have changed so radically that it would be inequitable to hold the parties to their bargain.80 As Denning L.J. 81 said in 1950 82 : " The day is done when we can excuse an unforeseen injustice by saying to the sufferer: ' It is your own folly. You ought not to have passed that form of words. You ought to have put in a clause to protect yourself.' We no longer credit a party with the foresight of a prophet or his lawyer with the draftsmanship of a Chalmers. We realise that they have their limitations and make allowances accordingly. It is better thus." There speaks the authentic voice of mid-twentieth-century public opinion. It was, of course, renounced by the House of Lords.83 But only because the Court of Appeal had gone perhaps too far. In effect they had claimed the right, not just to declare a contract ended because of changed circumstances, but to rewrite it to meet the changed circumstances. Neither the House of Lords nor the legislature has yet gone that far, though the former in the Fibrosa case,84 and the latter by the Frustrated Contracts Act of 1943,85 have gone part of the way. If time permitted, other examples could be given of this " Welfare State " mentality with which the courts now approach contracts. By a liberal construction they strive to make the contracts work, despite maladroit drafting 8Sa —this, as Devlin J. has pointed out,86 is particularly noticeable in their approach to commercial contracts, such as marine insurance and agreements of the businessmen who insist on endorsing conditions on the backs of their notepaper and then ignore the inevitable contradictions with those 80

See, e.g., Davies Contractors, Ltd. v. Fareham U. D. C. [1956] A.C. 696, H.L. The common law doctrine of frustration is, of course, frequently supplemented by express "force majeure" clauses of which businessmen are so fond. The net result has almost been to convert a contract from something to be performed if humanly possible into something which need only be performed if it is convenient to do so. 81 Now Lord Denning. 82 In British Movietonews, Ltd. v. London & District Cinemas [1951] 1 K.B. 190, at p. 202. ss [1952] A.C. 166, H.L. 84 Fibrosa v. Fairbairn [1943] A.C. 32, H.L., overruling Chandler v. Webster [1904] 1 K.B. 493. 85 The Law Reform (Frustrated Contracts) Act, 1943. 85a For a recent illustration, see Adamastos Shipping Co., Ltd. v. Anglo-Saxon Petroleum Co. [1958 ] 2 W.L.R. 688, H.L. 86 " T h e Relation Between Commercial Law and Commercial Practice" (1951) 14 M.L.R. 249.

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on the notepaper of the other party. Where a businessman is dealing with an inexpert customer, the courts are, perhaps, increasingly willing to imply terms needed to protect the customer,87 and they are certainly increasingly reluctant to do so in order to protect the businessman.88 Under the so-called High Trees doctrine89 of promissory estoppel they refuse to grant one party his pound of flesh if he has led the other to believe that he will not exact it. All this is far removed from the harsh laissez-faire doctrines of pacta sunt servanda and caveat emptor. Nor, for that matter, is this attitude limited to the strict field of contract; we may see other examples in the gradual whittling away of the doctrine of common employment80 so that its sting had been drawn ten years before it was finally destroyed by statute.91 And, consciously or unconsciously, all this is a response to the milder climate now prevailing —for even English judges are not wholly insulated from the outside world. 4. The Changing Attitude of the Businessman Towards the Law In conclusion I want to turn from the law's attitude towards the businessman to the businessman's attitude towards the law. As I have already said, up to the turn of the century the commercial man retained a deep interest in the commercial law which he had helped to mould. On the other hand, he was becoming reluctant to litigate and showing a preference for arbitration—a preference which the lawyers had tried to counter by offering him the speedy and informal procedure of the Commercial Court. During the twentieth century, as it seems to me, the businessman has lost interest in commercial law. He has come to regard it as an esoteric mystery with which he prefers to have as litde contact as possible. Codification has lost its hold on him. There have, it is 87

Reed v. Dean [1949] 1 K.B. 188; Stewart v. Reavell's Garage [1952 ] 2 Q.B. 545; Andrews v. Hop\inson [1957] 1 Q.B. 229. Luxor (Eastbourne) Ltd. v. Cooper [1941] A.C. 108, H.L.; overruling Trollope & Sons v. Martyn Bros. [1934 ] 2 K.B. 436, C.A., and Trollope Sr Sons v. Capian [1936 ] 2 K.B. 382, C.A. And cf. Oscar Chess v. Williams [1957] 1 W.L.R. 370. 89 Central London Property Trust, Ltd. v. High Trees House, Ltd. [1947] K.B. 130; Robertson v. Min. of Pensions [1949] 1 K.B. 227, C.A.; cf. Combe v. Combe [1951] 2 K.B. 215, C.A.; and Tool Metal Manufacturing Co. v. Tungsten Electric Co. [1955] 1 W.L.R. 761, H.L. 0° English v. Wilsons & Clyde Coal Co. [1938] A.C. 57, H.L. 91 Law Reform (Personal Injuries) Act, 1948.

88

166

Business true, been some further codifying measures: the law of marine insurance was codified in 190692 and there has been considerable legislative activity in connection with industrial property. 93 Adoption of international conventions relating to carriage by sea and air has led to measures of codification in these fields,94 and the Merchant Shipping Acts have been similarly revised from time to time.95 But in general the initiative for all these measures has come from Government Departments or from bodies of lawyers (such as the International Law Association) rather than from Chambers of Commerce or similar associations of businessmen. This tendency is still more noticeable when we turn from codification to detailed measures of law reform. English lawyers are criticised—and righdy—for their lack of enthusiasm for reform. Nevertheless, the fact remains that in the present century it has been the lawyers' Law Revision and Law Reform Committees,9® rather than any activity by businessmen, which have led to such reforms as have come about in the technicalities of commercial law. The statutory regulation of the doctrine of frustration, 97 the repeal of section 4 of the Statute of Frauds and the Sale of Goods Act,98 the reform of innkeepers' 99 and occupiers' 1 liability, even the final removal of married women's contractual disabilities2 all resulted from the work of these Committees. The recent modification of the need to indorse cheques 3 was similarly based on the 92 93

94 95

96

97 98 89 1 2 3

Marine Insurance Act, 1906. Copyright: Musical Copyright Act, 1906; Copyright Act, 1911; Copyright Act, 1956. Trade Marks: Trade Marks Act, 1905; Trade Marks Act, 1938. Patents and Designs: Patents and Designs Acts, 1907, 1914, 1919, 1938, 1939 and 1946; Patents Act, 1949; Registered Designs Act, 1949. And Patents, Designs, Copyright and Trade Marks (Emergency) Act, 1939. Carriage of Goods by Sea Act, 1924, and Carriage by Air Act, 1932. There have been Merchant Shipping Acts of 1900, 1906, 1907, 1911, 1914, 1920, 1921, 1923, 1925, 1932, 1945, 1949, 1950, 1952 and 1958, in addition to the Maritime Conventions Act, 1911, the Pilotage Act, 1913, the Pilotage Authorities (Limitation of Liability) Act, 1936, the Sea Fish Industry Act, 1938, and the Ships and Aircraft (Transfer Restriction) Act, 1939—an impressive legislative record. The Law Revision Committee was set up in 1934. It fell into abeyance during the war but was re-established, as the result of pressure from legal circles (especially academic circles), in 1952 under its new name of the Law Reform Committee. There is now a similar Committee for Scotland. Law Reform (Frustrated Contracts) Act, 1943. Law Reform (Enforcement of Contracts) Act, 1954. The Hotel Proprietors Act, 1956. The Occupiers' Liability Act, 1957. Law Reform (Married Women and Tortfeasors) Act, 1935. Cheques Act, 1957. 167

Legal Developments report of a lawyers' committee 4 and although the matter had previously been ventilated in banking circles there had not been any general public or commercial agitation. In other words, technical law reform today is generally produced as a result of a combination between the lawyers and a Government Department, not from pressure by commerce. It is true, of course, that when a Committee is considering legal reform, representative business bodies are generally willing to respond to an invitation to give evidence before it. But even then they often display a remarkable absence of the enthusiasm which characterised their nineteenth-century forbears. Generally their attitude is that, so long as business practices work smoothly in most instances, the fact that they bear little relationship to the legal position is not worth bothering about. They think of the law as dealing only with the pathological failures, where it is too much to hope for a really satisfactory outcome. And they are suspicious of any suggestion that the law might be changed in order to provide a less unsatisfactory result, fearing that this may upset the smooth working of business practices or draw attention to the flaws which those practices have glossed over. Hence, not only is there no enthusiasm for any thorough overhaul of commercial law, such as that which is taking place in the U.S.A. under the new Uniform Commercial Code, but little support is forthcoming even for proposals to amend specific rules of law which seem to some lawyers to be urgently in need of reform. These remarks are not intended as criticism of the businessman's attitude. It is, I think, entirely understandable, and if anyone is to be criticised it is we lawyers who have allowed the law to become so out of touch with realities that the customer has lost interest in our wares. Nor, indeed, is this wholly true if " law " is considered in a broader context; there are some fields of legal regulation which remain of burning interest to the businessman—income tax, purchase tax, profits tax, exchange and borrowing control, hirepurchase restrictions and the other physical controls to which he is now or has formerly been subjected. These, rather than the technical commercial law, are what affect his pocket and his day-to-day operations and so far as these are concerned he is still prepared to 4

Cmnd. 3 of 1956.

168

Business take the initiative. In his eyes, the emphasis has changed from lawyers' law to accountants' and bankers' law; the failure of the legal profession to recognise this and to adapt itself to the businessman's new pre-occupations largely account for the diminishing prestige and prosperity of solicitors and barristers. This diminishing status 5 is accentuated because a lack of interest in commercial law has been accompanied by an increased distaste for commercial litigation. For some time the newly established Commercial Court proved popular and succeeded in arresting, even if it did not reverse, the trend in favour of arbitration. Immediately after the First World War two judges were sitting almost full time on the Commercial List. But this was its brief heyday and thereafter there was a decline in its work, gradual at first, but precipitate after the Second World War." In 1957 only twenty-six cases were set down in the Commercial List, ten of these were stayed, withdrawn or settled and only sixteen were actually tried 7— in contrast with one hundred and seven in 1907. This is not due to any lack of advertisement of the services which the Commercial Court can render. Its judges are constantly pointing out how speedy they can be—and they can be speedy; recently a case was finally disposed of eleven days after the issue of the writ. 8 They have also stressed that when a serious legal point arises arbitration, rather than litigation, often adds to the expense and the delay.9 Nor does it necessarily prevent litigation in the end, for either party can invoke the jurisdiction of the courts by way of case stated. Despite this, businessmen obstinately prefer their own arbitral tribunals so that it is now seriously being questioned whether there is any point in retaining the Commercial List.10 5 6

7 8 9

10

This refers to the lawyer's status in business circles; his social status still remains high—that of the solicitor certainly higher than in the nineteenth century. So far as one can judge from the published Judicial Statistics which, since 1922, only give details of the days' sittings and not of the number of cases set down or tried, the final collapse occurred in 1950, when the days' sitdngs fell to eighty from 147 in the previous year. But this represented ninety-five days' sittings. For these figures I am indebted to the Lord Chancellor's Dept. British Imex Industries, Ltd. v. Midland Ban{ [1958] 1 Q.B. 542. See also Hamzeh Malas v. British Imex Industries [1958] 2 Q.B. 127, C.A. Shaffer, Ltd. v. Findlay Durham & Brodie [1953] 1 W.L.R. 106, at p. 118, C.A.; Universal Cargo Carriers Corpn. v. Citati [1957] 2 Q.B. 401, at pp. 426, 427. See the lecture by Devlin J. reported in (1957) 101 S.J. 950.

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One explanation for this preference is, probably, that they prefer to have a right to demand service from a paid arbitrator rather than to receive it from a judge by grace and favour; in this respect the judges' self-advertisement may be self-defeating. Moreover, I suspect that we lawyers exaggerate the extent to which arbitration merely leads to litigation. The vast majority of arbitrations are concerned solely with questions of fact, such as the quality of goods. Even where points of law do arise it is clearly only in a very small proportion that a case is stated and proceeded with—we lawyers only read of the exceptions. Another of arbitration's great attractions 11 is, of course, privacy. This has its dangers. There have, for example, been suggestions that insurers have been prepared to rely on defences which they would never have dared to put forward in public litigation. As a result the British Insurers Institute and Lloyd's have recently agreed that their members will waive arbitration if the assured wishes.12 This may fairly be regarded as a triumph for public opinion—but once again it was the lawyers who were largely responsible. What I have said may have implied that there has been a continuing drift away from litigation towards arbitration. In fact, however, there is some evidence that arbitration is only increasing relatively, not absolutely. What seems to be happening is that the businessman prefers to settle his disputes out of court even though that court be an arbitral tribunal. This—though a further misfortune for lawyers—is probably a sign of maturity and another illustration of the general lack of enthusiasm for law, to which I have already drawn attention. Certainly London is gradually ceasing to be a world centre of international arbitrations, though this is due to the growing spirit of nationalism throughout the 11

12

There are, of course, other attractions besides those mentioned in the text. Among these are: the ability to choose the arbitrator and to ensure that he is familiar with trade customs (which even before a judge with commercial experience would normally have to be proved by evidence); the fact that the arbitration can be held at a time and place convenient to the parties; and the fact that the parties and their witnesses will not be made to look fools or knaves under cross-examination in public. There seems little hope of wooing businessmen back to the courts unless the courts can afford them these advantages. For suggestions on how this might be accomplished, see [1958] J.B.L., pp. 1-4. The Times (London), January 12, 1957. The agreement does not apply to marine insurance, but there arbitration clauses are unusual. This, however, has not led to much recent litigation because Lloyd's will not allow their members to fight a claim unless a Committee authorises them to do so, and at present this authority is rarely given.

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Business world rather than to growing maturity. Nor does the businessman show much interest even in reforms of the law of arbitration. One might have expected that there would be agitation to allow the jurisdiction of the courts to be ousted completely, thus solving the problem of expense and delay inherent in the present system. One might also have expected that there would be a wish to reverse the rigid rules regarding the award of costs which the courts have forced on arbitrators 13; as Lord Goddard C.J. recognised " lay arbitrators always seem to think that parties should pay their own costs " 14—a not unnatural heresy since the English rule that the loser must pay is almost unique in the civilised world. But in fact there is no agitation about this or anything else; arbitrators just go on ignoring the legal rules.15 As the businessman has lost interest in law and litigation, so, to some extent, has the law lost contact with business. Mercantile custom has ceased to be a revivifying source of the common law. And customs formerly received into the law have crystallised and are no longer susceptible of adaptation notwithstanding subsequent changes in business practice. Thus the courts have refused to countenance the substitution of delivery orders and insurance certificates for bills of lading and policies as the normal documents in a c.i.f. contract.1" This loss of contact is not anything like complete. As Devlin J. pointed out in the lecture to which I have already referred, 17 there is still close collaboration between lawyers and commercial men in the preparation and interpretation of standard form contracts. Furthermore, new business practices have forced the courts to face novel problems with which they have grappled with greater or lesser success. They have proved helpful in their attitude towards one of the most important developments of the century—the bankers' documentary credit—notwithstanding the "

Smeaton Hanscomb & Co. v. Setty (No. 2) [1953] 1 W.L.R. 1481; Lewis v. Haverfordwest R. D. C., ibid., 1486. " Ibid., 1487. 15 Heaven & Kesterton v. Et. Albiac [1956 ] 2 Lloyd's Rep. 316. 18 Manbre Saccharine v. Corn Products [1919] 1 K.B. 198; Wilson Hoigate v. Belgian Grain & Produce Co. [1920 ] 2 K.B. 1; Diamond Alkali Export Corpn. v. Bourgeois [1921] 3 K.B. 443. Fortunately the incidents of the f.o.b. contract were never so clearly formulated, with the result that this type of agreement retains some measure of flexibility, as the House of Lords has recently recognised: Pound & Co. v. Hardy & Co. [1956] A.C. 588, H.L. 17 See supra, p. 165, n. 86.

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difficulties posed by the English doctrine of valuable consideration.18 By a restrictive interpretation they ruined the practical efficacy of the del credere agent,19 but responded more realistically to the later adaptation of it in the form of the confirming agent.20 They reacted favourably to the new invention of the gold clause in international contracts,21 but, in the unsatisfactory decision in Treseder-Griffin v. Co-operative Insurance Co.,22 boggled at its application in the domestic sphere. All these examples, it may be noted, illustrate attempts by businessmen to protect themselves against hazards typical of this century. Hence, though contact between law and business has not been lost it seems to be less direct, with a growing aloofness on the part of the businessman and a growing remoteness from commercial realities on the part of the lawyer. If I am right in this diagnosis this, of all the features of the present century, is the one which must cause most disquiet to one who professes what I am professor of. But maybe I am utterly wrong. As Dicey pertinently observed23: " W h o can hope to attain anything like success in contemporary criticism of English legislation and opinion when he knows that such criticism has, in the hands of Burke, Tocqueville, and Bagehot, produced only partial success and success in some cases almost over-balanced by failure? This question supplies its own answer." It does indeed; but it is something to have failed in such distinguished company.

18

19 20 21 22 23

See, for example, Vrquhart Lindsay v. Eastern Ban\ [1922] 1 K.B. 318; Hamzeh Malas & Sons v. British Imex Industries, Ltd. [1958] 2 Q.B. 127, C.A.; and British Imex Industries, Ltd. v. Midland Ban{ [1958] 1 Q.B. 542. Gabriel v. Churchill and Sim [1914] 3 K.B. 1272. Rusholme Sr Bolton & Hadfield v. Read & Co. [1955] 1 W.L.R. 146; Sobell Industries v. Cory Bros. [1955 J 2 Lloyd's Rep. 82. Feist v. Société Intercommunale Belge d'Electricité [1934] A.C. 161, H.L. [1956 ] 2 Q.B. 127, C.A. (an unhappy attempt to dabble in economics). Law and Opinion, 2nd ed., p. xxvi.

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are, broadly speaking, three ways of carrying on business. One is to buy or manufacture as cheaply as you can and try to sell a little more cheaply than others so as to increase your own volume of trade. That is competition. The second way is to get, by some means or other, so large a share of the market that you are not troubled by competitors and can fix your price at the highest the public will pay. That is monopoly. The third is to make arrangements with your competitors that you will refrain from full competition with them and so be able to fix prices at a level satisfactory to the whole group. That is the way of restrictive practices. This is a rough-and-ready analysis and is not intended to be taken too literally in relation to modern business methods. Classical economists, and the English common law, which is a good deal older than the oldest classical economists, have always favoured competition as being most likely to be for the benefit of the whole community and frowned upon monopolies and restrictive practices as being likely to benefit only the participants. Nevertheless monopolies and restrictive practices have always existed, partly because it was difficult to eradicate them, partly because it was worth the while of those in authority to allow them to continue and partly because there were or seemed to be good reasons for permitting and even encouraging them. (Sir Edward Coke 1 said that monopolies were " ever without the law . . . never without friends.") Many monopolies were created by the Crown, and the Statute of Monopolies2 of 1624 was directed against these, though an exception was made for patents—a form of monopoly that has been regarded with approval right up to the present day. Patents are, of course, now governed by statute but some monopolies granted THERE

1 3 Inst. 182. 2 21 Jac. 1, c. 3.

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by the royal prerogative still exist, e.g., the monopoly of the universities for the printing of the Bible—granted, I believe, because James I held the copyright of the Authorised Version. Attempts to create private monopolies were, however, always regarded as being against the common law. Coke 3 said that they were contrary to Magna Carta. Similarly, any agreement in restraint of trade was from ancient times regarded as against public policy and illegal. In a piece of research recently undertaken the earliest case found was in 1298, when some coopers were fined for agreeing to fix the price of hoops at a penny, an increase of from 3 3 p e r cent, to 100 per cent, on previous prices. Jumping twothirds of the way to the twentieth century there are several cases between 1699 and 1783 of prosecutions for conspiracy arising from agreements between traders directed to securing a monopoly in a particular market or to keeping up prices.4 But by the nineteenth century the tendency was to allow people to carry on business in their own way and to make such agreements as they chose with others. Thus one may contrast Lord Mansfield,5 saying in 1783, " Persons in possession of any articles of trade may sell them at such prices as they individually please but if they confederate and agree not to sell them under certain prices it is conspiracy," with Lord Ellenborough,6 in 1815, when two rival coach owners agreed to charge the same fares, " This is merely a convenient mode of running two concerns which might otherwise ruin each other." An Act of 18447 abolished the ancient offences of engrossing, regrating and forestalling—do not ask me to define the exact nature of each of these; they all had something to do with obtaining a corner in goods in or on their way to a market. In fact monopolies and restrictive practices, which had had a fair amount of attention from Parliament and the courts in earlier centuries, were left very much alone in the nineteenth century and were not regarded as a serious problem in this country. The Combination Acts,8 although they dealt with combinations of employers as well as of workmen, referred to employers only as hoc. cit. 4 R. v. Norris (1758) 2 Keny. 300; Anon. (1699) 12 Mod. 248; R. v. Eccles (1783) 11 Leach 274. 5 R. v. Eccles, supra. « Hearn v. Griffin (1815) 2 Chitty 407. 7 7 & 8 Vict. c. 24. 8 39 Geo. 3, c. 81; 40 Geo. 3, c. 106; 5 Geo. 4, c. 95; 6 Geo. 4, c. 129.

3

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employers: it was combinations to keep down prices of labour, not combinations to keep up prices of goods that they were concerned with. Dicey,9 who has so much to say about the struggle between individualism and collectivism in relation to trade unions, barely mentions monopolies or restrictive practices: he refers to the Act by which the offences of regrating, etc., were abolished 10 ; he says something about the encouragement given by Parliament to the development of large businesses, points out that every large business may develop into a monopoly and quotes Mill to the effect that what can be done by a joint stock company can often be done as well and sometimes better by the State.11 But it is only in an appendix12 and only in relation to the United States that he mentions the tendency of mercantile trusts to create monopolies as one of the important problems arising in connection with the right of association. Nor does he have anything to say in the introduction to his second edition, written in 1914, about the topics I am lecturing on.13 The truth seems to be that for at least 100 years up to the First World War Englishmen had assumed that the freedom to associate for the purpose of building up greater and greater businesses was of more value to the public as a whole than the ability to compete effectively with large corporations or with organisations of established businesses. It may well be that in the trading conditions of the nineteenth and early twentieth centuries the scale of most businesses was still small enough and the organisations were still flexible enough to make association as a mode of competition more valuable than any competition that could be stimulated by interfering with the right of association. But experience shows that large trading units tend to grow and that organisations tend to become more rigid and embracing; and no doubt scientific progress and improving communications in this century have favoured these developments. So it is not surprising that political attention turned from time to time as the twentieth century progressed to the question of whether and in what way the State should intervene. Law and Opinion in England in the 19th Century, 2nd ed. p. 190. » pp. 245-248. 1 2 p. 467. 1 3 Except for a passing reference to railway companies and other corporate bodies at pp. 54-55. 9

10

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At the turn of the century the commercial and legal atmosphere was conducive to the making and strengthening of restrictive arrangements. Home producers wished to protect themselves against the competition of unrestricted imports; small distributors were disturbed about the competition of growing organisations of multiple stores; some products newly coming on to the market, such as electric lamps, were in the hands of a comparatively small number of manufacturers who found it worth while to get together and maintain prices rather than enter into outright competition with each other. At the same time in some industries such as matches, glass and oxygen one producer had already got sufficiently ahead of its competitors to have some prospect of establishing a monopoly and in some cases was powerful enough to impose restrictions on those who wished to buy from it so as to prevent their buying elsewhere. Many restrictive arrangements were made in the twenty years before 1914, including such widespread organisations as the National Book Agreement and the Proprietary Articles Trade Association, which protected prices at all stages for a large proportion of the goods sold in chemists' shops. Very rarely did any such agreements come before the courts; nobody attempted to enforce them by action because it was recognised that they were not legally binding. This was clearly laid down in 1891 in a case where an agreement to maintain the prices of mineral waters was held to be unenforceable " and was accepted by the House of Lords in Mogul S.S. Co. v. McGregor, Gow & Co." But this latter case established that an agreement to form a ring and to keep competitors out of a market was not an indictable conspiracy and gave no cause of action to a trader outside the ring who was damaged by it. The trend of judicial authority in the first half of the twentieth century tended to assist rather than to put down restrictive arrangements. In Elliman v. Carrington 16 an agreement for resale price maintenance between manufacturers and wholesalers was held enforceable and in Palmolive v. Freedman17 this decision was extended by the Court of Appeal to a case where the wholesaler " Urmston v. Whitelegg (1891) 7 T.L.R. 295. " [1892] A.C. 25. " [1901] 2 Ch. 275. « [1928] 1 Ch. 264. 176

Monopolies and Restrictive Practices agreed to maintain the price of Palmolive soap " wherever acquired." In North Western Salt Co. v. Electrolytic Al\ali Co.1* the House of Lords refused to hold illegal a contract between a combination of salt manufacturers and an outside manufacturer, one object of which was to maintain the price of salt. In the course of his judgment Lord Haldane said: " Unquestionably the combination in question was one the purpose of which was to regulate supply and keep up prices. But an ill-regulated supply and unremunerative prices may in point of fact be disadvantageous to the public. Such a state of things may if it is not controlled drive manufacturers out of business or lower wages and so cause unemployment and labour disturbance." These observations will have a familiar ring to anybody who has listened in recent years to manufacturers arguing in favour of price-fixing agreements. However, the restricters did not have it all their own way. In Dunlop v. Selfridge18 it was held on technical legal grounds that where Selfridges had bought tyres not direcdy from Dunlops but from factors who had bought from Dunlops on price maintenance terms, Dunlops could not enforce the prices on Selfridges. In Evans v. Heathcote20 it was decided that a quota agreement between certain tube manufacturers was unenforceable as being in restraint of trade. In McEllistrim v. Ballymacelligot Co-operative Society21 a rule of the society whereby certain dairy farmers were not to sell milk to any factory other than the Co-operative factory was held invalid. It may, however, be noted that there was nothing in any of the three cases I have just cited to put any difficulties in the way of those operating restrictive practices so long as they settled their own differences without coming to court. Outsiders whose business was damaged by such arrangements got no help from the courts. In Sorrell v. Smith 22 the plaintiff, a newsagent who was threatened with being unable to obtain newspapers from the wholesaler of his choice because the defendants in pursuance of a restrictive agreement proposed to cut off supplies to that wholesaler, was held by the House of Lords not to be entided to damages; and a similar 18 [1914] A.C. 461. " [1915] A.C. 847. 2 ° [1918] 1 K.B. 418. 2 1 [1919] A.C. 548. 2 2 [1925] A.C. 700. G.T.T.

177

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Legal Developments result was reached in Crofters' Hand Woven Tweed Co. v. Veitch,23 The gist of both decisions is that the plaintiff could not succeed without proving malice and that if your dominant motive is to protect your own trade interests this is not malice. There is one particular mode of operating among those who have restrictive arrangements which is particularly liable to be damaging to an independent trader, i.e., where the name of such a trader is put on a stop list. In Ware & de Freville v. M. T. A.24, the Court of Appeal held that it was not illegal to do so. In R. v. Denyer25 the M. T. A.25ft went a stage further and demanded of a trader a payment of £250 as a condition of not being put on the stop list, and the Court of Criminal Appeal held that this was blackmail and confirmed the conviction and sentence of six days' imprisonment which had been passed on the defendant, an officer of the Association. However, in Thorne v. M. T. A.,26 the House of Lords held that R. v. Denyer was wrongly decided. It is fair, therefore, to say that the judicial decisions of the first four decades of this century left those who wished to carry on restrictive arrangements free to do so, so long as they kept the maintenance of their own business interests steadily before them as their primary object—which most of them were ready enough to do. Between the wars restrictive arrangements developed apace. Particularly in the late twenties and early thirties, when there was a strong buyers' market and manufacturers and distributors were much frightened by falling prices and some intensive price cutting activities, new associations were formed and old ones were extended and made tighter. Thus, in heavy electrical machinery the B. E. A. M. A.27 and certain groups of manufacturers were formed before 1914 but in the thirties a Groups Joint Administration Board was set up and the organisation strengthened. In connection with tyres the S. M. M. T. 28 was formed in 1902 and the M. T. A. in 1910; the T. M. C.29 started in 1929 and distributors became more closely organised in the thirties, though it was only after the war «

[1942] A . C . 435. [1921] 3 K.B. 40. « [1926 ] 2 K.B. 258. 25a Motor Trade Association; later renamed British Motor Trade Association. 2« [1937] A.C. 797. 2 7 British Electrical and Allied Manufacturers' Association. 2 8 Society of Motor Manufacturers and Traders. 2 9 Tyre Manufacturers' Conference. 2*

178

Monopolies and Restrictive Practices that a rigid tyre distribution plan was evolved. In metal windows an association was founded in 1920 for the purpose of standardising windows but an organisation for controlling prices came into existence only in 1933. For linoleum the L. M. A. 30 was set up in 1934 " to prevent deterioration in the quality and reputation of linoleum in the unstable trading conditions " then prevailing. In the same period certain companies, of which the British Oxygen Co. is an example, progressed from a strong position in the market towards a complete monopoly, and certain other companies, of which I. C. I. and Lever Bros, are the chief, grew into industrial giants and probably obtained monopolies in some but by no means in all of the sections of industry in which they participated. While the law did not interfere, politically these various developments caused anxiety from time to time. After the 1914—18 War a number of industries were examined by Committees set up under the Profiteering Acts. The inquiries were superficial but revealed in many cases the existence of organisations for maintaining prices and the reports, without absolutely condemning them, pointed out the danger of excessive prices being charged. At about the same time a Committee on Trusts was set up " In view of the probable existence of trade organisations and combinations, to consider and report what action if any may be necessary to safeguard the public interest." It reported in 1919 that trade associations and combines " are rapidly increasing in this country and may within no distant period exercise a paramount control over all important branches of the British Trade." The Committee recommended that a permanent tribunal of investigation should be established but nothing was done for the next twenty-five years. In 1930 a Committee was set up under Mr. Wilfrid Greene, K.C.,31 to consider the particular question of the imposition, by suppliers of goods on purchasers, of resale conditions; it found that such practices had disadvantages from the public point of view but considered that a manufacturer's right to impose such conditions should not be interfered with by the law. There matters rested for the next fifteen years. For some reason both world wars seem to have given rise to the view that when they were over something should be done about 30 31

Linoleum Manufacturers' Association. Later Lord Greene M.R. and a Lord of Appeal in Ordinary.

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monopolies and restrictive practices. (Perhaps because wartime conditions tend to upset the mechanism of competition and to promote collaboration among producers.) In 1919 nothing was done but in 1944 it was generally recognised that the time had come for some specific legislation on these matters. In a policy statement issued by the wartime coalition government it was announced that after the war machinery would be set up to investigate and to promote a greater degree of competition where it was thought desirable. The result was the Monopolies and Restrictive Practices (Inquiry and Control) Act, 1948, a measure which in principle was supported by all parties. The tide of the Act well indicates the approach of Parliament to the subject. There was nothing corresponding to the provisions which had been part of the law of the United States since 1890 imposing a general ban on monopolistic and restrictive practices.32 It was considered that not sufficient was yet known about the effects of these activities to enable any prohibition to be established. The first thing required was investigation and, since quite different considerations might affect different industries, the Act provided for the investigation of the position industry by industry and for legislation by order in relation to any particular industry on which an adverse report was made. In the course of the passage of the Bill through Parliament a clause was introduced providing for a general inquiry on any restrictive practice of a kind which had been found in more than one industry.33 But here no provision was made for the banning of any practice condemned in the report. Under the 1948 Act the first step on an industrial reference was that the Board of Trade sent a reference to the Monopolies and Restrictive Practices Commission.34 In the course of this lecture I shall be saying quite a lot about the Commission and I shall say most of it in the past tense. The Commission still exists but in 1956 it was depleted of half its name, half its membership, half its staff and half its powers. It is, however, about the Commission as it operated between 1949 and 1956 that I shall be mainly speaking. A reference to the Commission would be a reference in respect 32

Sec ss. 1 and 2 of the Sherman Act. s. 15. « 1948 Act, s. 2. 33

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of the supply of goods of a particular description. The Board of Trade could make such a reference only if they were satisfied that it might be the position that at least a third of the total supply of the goods in the U.K. was in the hands of a single company or group of companies or of a number of companies who had arrangements for restricting competition.35 (I am compressing a complicated provision.) If these circumstances existed then the " conditions to which the Act applies " were said to prevail. Now there are scores of industries in which the " conditions " exist. Provision was made in the Act for the Board of Trade to maintain a list of cases reported to them by the public 36 but they were in no way confined to this list for the purpose of selecting cases for reference. References could, and occasionally did, cover export arrangement or processing of goods but could not deal with transport or other services. All practices relating to terms and conditions of employment were specifically excluded from the Act. I am saying nothing tonight about restrictive practices among workers or restrictive arrangements among employers about wages and conditions of service. All the recent legislation on restrictive practices has carefully kept away from these matters and I shall do the same. Another important limitation on the scope of the 1948 Act is contained in a proviso which excludes a reference where the prevalence of the conditions is authorised by statute.37 This meant that a nationalised industry could not be inquired into. The tide of this lecture is wide enough to include public as well as private monopoly but the discussion of policy and opinion in relation to the nationalisation of industry would take me into fields which I expect have been or will be covered by other lecturers in this series and I propose to impose the same restriction on myself as Parliament placed on the Commission. Having now indicated the types of case that could be referred to the Commission under the 1948 Act I will say something about the constitution of the Commission. It is a body quite separate from the Board of Trade. Its members are appointed by the Board of Trade and the Board has certain powers (which have never been « 36 37

s. 3. s. 16 (2). s. 2 (1), proviso.

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exercised) of giving general directions as to its procedure but it operates as an independent body. Originally there were eight members presided over by a distinguished ex-civil servant. In 1953, because it was desired to accelerate the work of the Commission, an Amending Act was passed enabling it to be enlarged and to sit in separate groups. At the beginning of 1954 a legal Chairman was appointed and at about the same time the size of the Commission was increased to sixteen; thereafter up to the end of 1956 all reports except one 38 were made by groups, each consisting of about half the Commission. The sixteen members included three Q.C.'S, four industrialists, three trade unionists, two accountants, two economists, an ex-Treasury Solicitor and an expert on investments. All except the Chairman were part-time members. The Commission was assisted by a staff which at its maximum was about 100 members. As soon as the Commission was set up six references were made and thereafter, as reports were completed, fresh references were made from time to time so that at any particular moment the Commission would have from five to eleven or twelve references on hand. The average length of an inquiry was a little over two years. The investigation was close and detailed. The inquiries were not in the strict sense judicial inquiries. There were no opposing parties. It was the Commission's duty to get at the facts and to form an opinion on them but there was nobody who filled the role of " prosecutor." Parties who were likely to be affected by a report were informed of evidence which they might wish to refute and were invited to direct their minds to particular ways in which their activities might be considered to be against the public interest. They could make written or oral representations to the Commission and could appear by counsel at hearings. In every industrial inquiry the Commission had to find whether or not the " conditions " prevailed. This was usually the easiest part of their task as in most cases far more than a third of the trade, and often nearly all of it, was in the hands of companies who admittedly were parties to restrictive agreements. In one case39 38 39

London Building. Radio valves. The original reference did require a report on the public interest but it was later amended. In another case (Copper Semis) a factual report was obtained first and then a full report.

182

Monopolies and Restrictive Practices the reference called only for a factual report but in all others the Commission were required, if they found that the conditions prevailed, to say whether they operated against the public interest. If they did then the Commission could make recommendations as to what should be done. In almost every case the Commission decided that some restrictive practices were against the public interest and recommended that they should be brought to an end. Not many of the reports disclosed the existence of a monopoly. In some cases, e.g., tyres, one company produced more than a third of the total supply but the report was concerned mainly with restrictive arrangements to which that company and others were parties. In some cases, e.g., calico printing, matches and oxygen, there was one company which dominated the market and certain things done by that company as a result or for the purpose of maintaining its position were criticised. But in no case was it recommended that a monopoly should be broken up. Having made its report on any particular reference the Commission had no more to do with the matter. It was then for the Government Department concerned to consider whether and how to implement the report.40 In only one case, that of dental goods, the first matter to be reported on by the Commission, was an order made requiring certain arrangements to be discontinued. In other cases, up to about the middle of 1955, what generally happened was that the Government discussed the report with the industry concerned and obtained their agreement to the abandonment of arrangements of which the Commission had disapproved. A number of the early reports of the Commission dealt with practices which involved arrangements by a group of traders not to trade with certain classes of persons; or to grant special terms to buyers who belonged to a particular organisation; or to prepare stop lists of persons with whom none of the group would deal. In 1953 the Board of Trade made a general reference requiring a report from the Commission as to the general effect on the public interest of such practices. The report was completed in May 1955. The Commission gave to the practices dealt with the generic name of " Collective Discrimination." This report was made by a group of ten members. The majority report, signed by seven members, found that all the 40

1948 Act, s. 10.

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Legal Developments practices under consideration were, in general, against the public interest (except that one of the seven did not agree as to one particular practice, i.e., that dealing with stop lists, etc.) and should be prohibited, though with provision for exceptions on certain specified grounds. The other three members considered that the practices were capable of operating against the public interest and that all arrangements for the operation of such practices should be registered; but they were not prepared to say that the practices were in general against the public interest and they considered that a registered agreement should be allowed to operate unless and until it was established before an appropriate tribunal that it did operate against the public interest. Immediately following the report on Collective Discrimination it was made known in Parliament that the Government would introduce legislation to deal with restrictive practices in a general way but that they did not wholly accept the conclusions either of the majority or of the minority of the Commission. Early in 1956 a Bill was introduced which, after considerable amendment in detail, but none in principle, became law on July 31, 1956, as the Restrictive Trade Practices Act, 1956. The 1956 Act covers a wider field than the Collective Discrimination report. It deals with all the restrictive arrangements commonly met with in relation to the supply of goods.41 It provides, following the minority report of the Commission, for a system of registration.42 It sets up a new court to consider all registered agreements.43 But, following the majority report of the Commission, it accepts the view that such arrangements are presumptively against the public interest 44 and it provides accordingly that those seeking to support an arrangement have the onus of showing that it is beneficial on one of eight stated grounds and further that on balance, taking into account any detriment to the public that it may involve, it is not unreasonable. The new Act is concerned only with restrictive arrangements which affect supplies in the United Kingdom. 45 The Commission remains in existence but is renamed " The Monopolies Commission " « «

« 44 45

s. 6 . S S . 1, 9 . s. 2 . s. 2 1 . 1956 A c t , s. 6 .

184

Monopolies and Restrictive Practices (i.e., there is now no mention of Restrictive Practices in its title) and its functions are limited to dealing with monopolies (in the sense of companies or combines which supply more than a third of the market) with purely export arrangements and with such restrictive arrangements in the home market as are not registrable (e.g., sole agency agreements, which by express provision are excluded from registration). The Commission was reduced to ten members and the whole Commission now has to deal with each reference.48 One of the practices dealt with in the report on Collective Discrimination was that of the collective enforcement of resale prices by stop lists and similar means. With this was often associated the practice of holding inquiries by private courts to decide whether a trader should be stop-listed, fined or otherwise dealt with. Under the existing law such proceedings were permissible and no criticism of these methods was made by the Court of Appeal or the House of Lords in either of the cases against the Motor Trade Association referred to earlier. There had, however, been a good deal of public and newspaper criticism of them in the post-war period. It was on this matter that the Commission was most sharply divided. The Government, however, took the view that this was the one type of restrictive practice which ought to be banned altogether and in the 1956 Act it was dealt with more stringently than was proposed even by the majority of the Commission : all such arrangements were banned without any provision for any claim to exception.47 If the matter had been left there it would have meant that a manufacturer of goods would have no control over the prices at which goods were sold by anybody except a direct purchaser from him—assuming the law to be still as laid down in Dunlop v. SeljridgeSome lawyers had thought that there was much to be said for allowing terms as to the manner in which goods could be dealt with to attach to the goods in the same way as a restrictive covenant can be attached to land or as the conditions of a licence for the sale of patented goods bind a purchaser with notice from the licensee. The Lloyd-Jacob Committee, who made a report on Resale Price Maintenance in 1949, « " «

1956 Act, ss. 28 and 29. 1956 Act, s. 24. See above. But see Drive Yourself Hire Co. v. Strutt [1954] 1 Q.B. 250.

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were against collective enforcement but in favour of a manufacturer being able to enforce resale prices by individual action. The Commission in the report on Collective Discrimination drew attention to the possibility of introducing legislation to facilitate enforcement against sub-purchasers but expressed no opinion whether this should be done as it was not within the reference. One member of the Lloyd-Jacob Committee (Mr. Henry Smith) had been opposed to resale price maintenance in any form and after the publication of the Lloyd-Jacob Report the Labour Government had announced that their policy was to abolish all price maintenance. The Conservative Government which succeeded them, however, took the view that an individual manufacturer should be able to control resale prices all down the line and, accordingly, having prohibited collective price maintenance and private courts, the new Act imposes an obligation on a trader who buys goods with knowledge of a price condition imposed by the manufacturer to adhere to that price even though he has not entered into any contractual relation with the manufacturer and has not given any undertaking to anybody to observe any fixed price.'19 Since the 1956 Act came into force the registration of restrictive arrangements has been proceeding, the new court has been set up and the reference of certain arrangements to the court has been made. Undoubtedly, rather than register their agreements, a number of associations and companies brought them to an end or so modified them as to take them outside the Act. There may well be some agreements which were due for registration in February 1957 but which the parties have not registered because of doubt as to whether they are registrable or not. (The sections 50 defining which agreements are registrable and providing for exceptions are by no means easy to construe.) And of course there may be some people who have agreements which they ought to register but have not realised it and there may be others who have agreements which they know they ought to register but think it worth while to do nothing unless and until they are actively pursued. If there is any doubt as to whether an agreement is registrable or not the matter can be decided by a « 1956 Act, s. 25. so 1956 Act, ss. 6 - 8 .

186

Monopolies and Restrictive Practices judge of the Chancery Division 61 and one such case,*2 concerning a series of agreements between a motor-car manufacturing company and its distributors, has been heard: it was decided that the agreements were not registrable. The court showed a disinclination to imply from the terms of certain agreements which on their face were not registrable the existence of an arrangement by way of an implied gentlemen's agreement which, if it had been found to exist, would have been registrable. In all, up to August 1957 some 1,400 agreements had been registered. The Act charges the Registrar with the duty of bringing each registered agreement before the new Restrictive Practices Court for a decision as to whether it is or is not against the public interest.52® This court is a newly created court of equal status with the High Court. It consists of High Court judges together with lay members appointed from among persons with experience of industry or public affairs.53 How, then, is the position changed as a result of the new legislation? Collective resale price maintenance has gone—the first type of restrictive practice to be made illegal for all traders in this country. The individual enforcement of resale prices has been facilitated: some but not many actions have been brought under the new provisions and it remains to be seen whether manufacturers will be able generally to keep control of resale prices by action or the threat of action: they have always disliked the expense, publicity and injury to business relations involved in litigation even where a cause of action existed in the past (i.e., where the price-cutter was a direct purchaser from the manufacturer or where the goods were covered by a patent) and it was largely for this reason that the system of stop lists and private courts grew up. In the economic conditions of recent years price-cutting has not been so prevalent as in the 1930s, but if the conditions of a strong buyers' market should develop, there might grow up a 5 2 Re Austin Motors Agreements 1956 Act, s. 13. [1958] 1 Ch. 61. 52a This lecture was delivered on February 11, 1958. Since then the Restrictive Practices Court has begun hearings, the first case being that of the Chemists' Federation which occupied the court for six days in October 1958; judgment was delivered on November 3, when the restrictive arrangements operated by the Federation, the essence of which was the channelling of listed medicines through chemists' shops, were declared to be contrary to the public interest and void. The second case heard was that of the Yarn Spinners' Association. This dealt with a price-fixing agreement which, after a hearing lasting several weeks, was 5 3 1956 Act, s. 4 (1). condemned in a judgment given on January 26, 1959.

51

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considerable body of traders who would cut prices so long as they could get away with it, and it remains to be seen whether they will be restrained from doing so. Many economists will consider that it is all to the good if they cannot, but many manufacturers, and also distributors who prefer a quiet life and a steady profit to a battle for orders with diminishing margins of profit, will hope that prices can be maintained. And lawyers usually have a tendency to think that a manufacturer should be able to control the terms of subsequent sale of his goods, or at any rate that bargains should be adhered to and that those who buy goods on the terms that a fixed price should be observed should not be able to flout their agreement. Then, the Register of Agreements has done at one stroke something that the Commission was able to do only piecemeal and at a pace which left most of the field untilled for many years— namely, the exposure to the public gaze of the terms of, and parties to, restrictive agreements. Next, it may be expected that when the court procedure gets under way it will be able to deal with considerably more cases in a year than the Commission could do. It seems likely that once judgments have been given on several typical cases, agreements which raise substantially the same point will be abandoned (if an earlier decision was unfavourable) or will be approved by the court without any serious contest on the part of the Registrar (if an earlier decision was in favour of the agreement). The decision of the court will (subject to appeal on law) finally determine the status of each agreement dealt with. In the eight years of its existence the Monopolies and Restrictive Practices Commission produced twenty-one reports. The reports have disapproved of agreements by which members of an association of manufacturers have agreed to sell only to members of an association of distributors or have agreed to grant special terms to such members; then all agreements which made entry to a trade as manufacturer or distributor more difficult have been condemned; so have all collective enforcement provisions; all supporting arrangements, e.g., agreements for " aggregated rebates " have been disapproved. Common price arrangements have been condemned except where there were particular circumstances which were considered to justify them, e.g., the exchange of 188

Monopolies and Restrictive Practices manufacturing information, the exchange of costings with adequate control of the profit margin added, the maintenance of joint research facilities, the maintenance of a standard of quality for the goods. In such cases common price arrangements sometimes received somewhat guarded approval. As to monopolies, these were found to exist in connection with matches and oxygen. In Matches the existence of the monopoly was not found to be against the public interest but its methods of operating in conjunction with a foreign manufacturer were condemned and price control was recommended. In Oxygen the monopoly of the principal manufacturer was held to operate in certain respects against the public interest, and certain steps taken to attain and preserve the dominant position (including the use of associated companies which appeared to the public to be competitors) were condemned; moreover, it was held by the majority that the prices charged were excessive and recommendations were made for government supervision of the prices charged. The Matches report was implemented in part but the recommendation for control of prices was not accepted. The Government have not yet announced their attitude to the Oxygen report.53® Many of the arrangements of a kind condemned by the Commission in particular cases now constitute registrable agreements and before the court the parties will not be able to argue that they are not against the public interest unless they can bring them within one or other of the " gateways " (as they have come to be called) provided by section 21 of the Act. In particular, as to common price schemes, some of the grounds which have satisfied the Commission that they might be allowed to continue can probably not be advanced before the court. A great deal depends on how widely the court construes the paragraphs which create the " gateways." 5 4 Some of them are easy of application but will be available only in a very few cases. The one which is likely to be most often invoked is one which provides that the agreement may be held not to be against the a On March 21, 1958, the President of the Board of Trade announced that agreement had been reached between the Government and the British Oxygen Company for the implementation of a number of the recommendations in the Commission's Oxygen report but stated that the Government did not propose to take any action on the Commission's recommendation for regulation of prices. 54 1956 Act, s. 21. 53

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public interest if its abandonment would deprive purchasers of specific and substantial benefits.55 It is almost always the contention of those who have restrictive arrangements that purchasers benefit by getting orderly distribution, goods of reliable quality, freedom from the annoyances of varying and fluctuating prices and other advantages. Is it to be open to the parties who support such agreements to rely on benefits of this kind? And if so what standard of proof will be required to establish the benefits? Often it can only be a matter of guesswork because nobody knows for certain what would happen if the agreement were to go. It is for the moment a matter of speculation whether the new Act is going to create a trading revolution or whether most registered agreements will get through the net and so leave the general position substantially unchanged. So far I have dealt mainly with the law and what has happened as a consequence of the law. What of opinion? Legal opinion has favoured the right of traders to make their own arrangements, has been slow to find such arrangements to be against the public interest and has refused to apply the sanctions of the criminal law or of the law of tort against them. Industrial opinion has favoured such arrangements in the sense that large sections of the industrial world have sought the protection of restrictive practices or have striven for the advantages of monopoly for themselves and have not opposed these developments in other fields. The general public has not displayed any very great interest in the topic. Informed political opinion showed no great concern about these practices except for a short period at the end of the First World War and the period since the latter part of the Second World War. It is only in the last fourteen years that there can be said to have been any Government policy on the matter and during those years there has been no acute political controversy about it. Labour and Liberal policy developed rather earlier and rather more strongly in a direction adverse to restrictive practices and to private monopolies. It was not, however, until 1955 that any party in office was ready to make any general prohibition of any type of restrictive practice. By then, on the strength of the Commission's reports, the Opposition would have favoured a general prohibition. The Government of the day, « s. 21 (l) (¿). 190

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however, preferred to prohibit only one practice, giving the others a further lease of life, but with a presumption against them and means of disposing of them if they fail to justify themselves. The reports of the Commission,56 presented between the latter part of 1950 and the latter part of 1956, may be regarded as a mirror of informed opinion about monopolies and restrictive practices during those years—being the work of a group of men with widely different kinds of experience, who for the purpose of their inquiries studied these matters closely. Most of the reports were unanimous or nearly so and most of them found certain existing practices to be against the public interest—though usually on a careful assessment of the total effects of arrangements for which quite substantial arguments could be advanced rather than by the bringing to light of something obviously evil. I think the reports show a high level of integrity among those operating restrictive practices and well illustrate Dicey's dictum that " A man's interest gives a bias to his judgment far oftener than it corrupts his heart." 57 The dissents, reservations and addenda to some of the reports are instructive in showing the different tendencies of opinion among disinterested men with different approaches to the problem. Economists, if they differed at all from their colleagues, found more to criticise in the practices or proposed stronger measures for dealing with them (see electric lamps, matches, gases, linoleum); some lawyers tended to be more reluctant to interfere with existing practices or to take repressive measures in an individual case and sometimes demanded stronger proof than their colleagues of any alleged detriment to the public interest (dental goods, tyres, gases, linoleum); industrialists varied between joining with economists (gases) and being the most reluctant of all to condemn (linoleum, electrical machinery); trade unionists were usually with the majority in criticism and sometimes went further in proposing remedies (matches, gases); accountants always agreed with the majority except in one case (tyres) when the accountant partially dissented along with two lawyers and an industrialist. The division on the General Reference roughly corresponded with 56

57

All the reports have been published by H.M. Stationery Office with titles in the form " Monopolies and Restrictive Practices Commission. Report on the Supply of . " The report referred to above, for brevity, as the " O x y g e n " report is entitled "Report on the Supply of certain Industrial and Medical Gases." Op. cit., p. 15.

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58

Including London Building, a strong report in which fifteen members participated.

192

ADMINISTRATIVE

LAW WILLIAM A. ROBSON

I PROPOSE to consider three aspects of the subject in this lecture. First, changes of attitude towards administrative law; secondly, changes in ideas about the scope and nature of administrative law; and thirdly, developments in the corpus of administrative law during the past fifty years. The ghost of Dicey is haunting these lectures, for both the tide of the series and the general conception on which it is based are borrowed from his deservedly famous book. If the ghost should now be in this theatre, I beg it to withdraw into one of the less draughty corridors or perhaps into one of the reading rooms in the library. We should both find it embarrassing if it were to remain here during my talk this afternoon. For I must begin with Dicey; and administrative law was Dicey's weakest point. I. Changing Attitudes Towards

Administrative

Law

Many years ago Professor Berthelemy, of the University of Paris, in a lecture which I heard him give in this School, recalled that Dicey had once said to him: " I n England we know nothing of administrative law, and wish to know nothing about it." This was only too true at that time. " In many continental countries and notably in France," Dicey wrote, " there exists a scheme of administrative law—known to Frenchmen as droit administratif—which rests on ideas foreign to the fundamental assumptions of our English common law, and especially to what we have termed the rule of law. This opposition is specially apparent in the protection given in foreign countries to servants of the State . . . who, whilst acting in pursuance of official orders, or in the bona fide attempt to discharge official duties, are guilty of acts which in themselves are wrongful or unlawful." 1 Droit administratif, he believed, rests on the principle that " the government, and every servant of the government, possesses, as 1

Law of the Constitution, 9th ed., p. 329. G.T.T.

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representative of the nation, a whole body of special rights, privileges, or prerogatives as against private citizens, and that the extent of these rights, privileges or prerogatives is to be determined on principles different from the considerations which fix the legal rights and duties of one citizen towards another." 2 He declared this to be alien to English ideas. The most despotic characteristic of droit administratij, in Dicey's eyes, was its tendency to protect from the control of the ordinary law courts any servant of the State who is guilty of an illegal act whilst carrying out the instructions of his superiors.3 He even regarded the fact that the State could be made liable in the administrative tribunals for the wrongful acts of its subordinates as a method of protecting the servants of the government. 4 He admitted that the Conseil d'État had evolved new remedies for numerous abuses which lay right outside the ordinary law of the land, but it was nevertheless open to some " grave criticism." 5 Dicey's real objection to droit administratij was that it failed to conform to two of the conditions which he thought necessary for the rule of law and which he fondly believed to exist in England. One of these was the absolute supremacy of regular law, and the exclusion of prerogative rights or wide discretionary power on the part of the government. The other was the equal subjection of everyone to the ordinary law of the land administered by the ordinary courts. This meant that the rule of law, as he conceived it, could not admit a special body of law appertaining to public administration, nor of administrative tribunals. 6 These conditions were not fulfilled in Britain even when Dicey's Law of the Constitution first appeared in 1885. Ministers already possessed wide discretionary powers derived from statute; and then, as now, the government exercised the prerogative powers of the Crown, which range from the conduct of foreign affairs to the making of war and peace, from the regulation of the civil service to the pardoning of prisoners. Dicey and his disciples wrote and talked as though there was a single undifferentiated body of law to which everyone was subject; whereas there was, and is, a vast 2 Ibid., 3 Ibid., * Ibid., 5 Ibid., « Ibid.,

pp. 336-337. pp. 345-346. p. 404. p. 401. p. 203. 194

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body of specialised law applying only to public health, housing, highways, education, the police and other public services. This law is quite different from the ordinary common law. It is true that all these special branches of law relating to public administration emanate from a single source—namely, Parliament; and much of it is liable to interpretation and enforcement by the ordinary courts. But there is no analogy—and certainly no equality— between the position of the Inland Revenue collecting income tax and that of a private person trying to recover a debt. A policeman controlling the traffic, a local authority fixing a building line or enforcing a development plan, a medical officer quarantining persons suffering from infectious disease, are exercising special powers to perform functions which are found only in public administration and for which there is no parallel in private life. Dicey did not even mention the immunity of the Crown from actions for tort which existed until 1947; nor the many other special privileges of the Crown in regard to the discovery of documents, costs and other matters which existed in his day, and many of which still persist today. The view of administrative law which Dicey presented is now entirely discredited. No reputable jurist believes today that the administrative tribunals in France serve to shield the official from the consequences of his action. On the contrary, it is now appreciated on this side of the channel that in France the citizen has generally a far better opportunity for securing redress against the government than exists in England. Lord Denning has explicitly stated that " so far from granting privileges and immunities to public authorities, the French Administrative Courts keep them in order and exercise a supervision and control over them which is more complete than anything we have here." 7 I cannot think of a writer on or teacher of public law in this country who would not whole-heartedly endorse this statement.8 Dicey managed to convey a contrast between the Englishman, happy and free under the rule of law, and the Frenchman, whose unhappy lot and lack of freedom were due to administrative law. The rejection of this view has been very gradually achieved and is 7 8

Sir Alfred Denning, Freedom Under the Law, p. 80. For the best study available in English of the Conseil d'État, see C. J. Hamson, Executive Discretion and Judicial Control, p. 71.

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still confined to a small although widening circle of jurists and political scientists. Dicey's views dominated the minds of educated Englishmen, particularly those in the legal profession and in public life, for the next thirty or forty years and we have not yet escaped from their after-effects. The New Despotism by Lord Hewart L.C.J, which first appeared in 1929 embodied many of Dicey's ideas but lacked Dicey's erudition and literary skill. Lord Hewart's distaste for, and ignorance of, administrative law was so great that he printed the expression between inverted commas as though it referred to something imaginary or of doubtful authenticity. So far as this country was concerned, he declared there was no administrative law but only administrative lawlessness. By this he referred to the powers of a judicial nature conferred on Ministers and officials. The system of so-called administrative " law " in this country had no analogy to the droit administratis of the continent and is an " indescribably more objectionable method." * Droit administratif was at least administered by real tribunals known to the parties and applying definite rules and a regular procedure to the disputes coming before them; whereas Lord Hewart had apparently not heard of any administrative tribunals in Britain since he never referred to them. The book was in essence a violent and polemical attack on the civil service. This was particularly noticeable in his unconcealed imputation that delegated legislation was due to the desire of officials to increase their own numbers and powers. " The greater the army of officials," he wrote, " the greater becomes the mass of Parliamentary and departmental legislation; the greater the mass of Parliamentary and departmental legislation, the greater becomes the army of officials; and so on ad infinitum." 10 All that was needed, he urged, was to reassert in grim earnest the sovereignty of Parliament and the rule of law. The New Despotism represents the high-water mark of the beliefs and assumptions and misconceptions which had informed— or misinformed—the work of Dicey. Four years earlier (in 1925) Professor J. H. Morgan, who held the chair of Constitutional Law in this University, delivered a devastating attack on the 9 The New Despotism, p. 45. io Ibid., p. 151.

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complacency and ignorance which prevailed on the subject of administrative law. He explained, with a wealth of illustration, that the notion that the rule of law prevails in Britain so as to exclude public officials from enjoying any legal immunity in respect of their official acts is a pure myth. 11 In Germany, he insisted, no less than in France the public official is not privileged at all and the citizen is placed in a much more favourable position than in England as regards legal remedies against the executive. He also emphasised the legal " rightlessness," as he called it, of the public servant in England against his employer the Crown,12 which again is quite inconsistent with the so-called rule of law. In countries governed by a proper system of administrative law, employment by the government, while distinct in law from an ordinary contract of employment, is recognised as a contract of public law conferring enforceable rights.13 Here the civil servant has virtually no enforceable rights. Morgan remarked that a comparison between the position of the citizen in a country governed by a properly developed system of administrative law and our own was " chastening to our pride." 14 The tone of his work was a welcome departure from the smug complacency which for generations had prevented any serious or critical thought being given to the subject. In 1931 Dr. C. K. Allen (now Sir Carleton Allen, Q.C.) published his litde book Bureaucracy Triumphant, which pushed the line of argument pursued by Morgan still further in the same direction. The author called for the development of " a wholesome body of administrative law developed in harmony with the traditional principles of the general legal system " as the only means by which administrative power can be made adequately responsible.15 He did not consider it would be necessary to introduce specialised tribunals for this purpose, as the questions involved were seldom of such technicality that the ordinary judges would have any difficulty in determining them. The notion that in England there was no administrative law 11 12 13 14 15

"Remedies against the Crown," by J. H. Morgan, in Gleeson E. Robinson, Public Authorities and Legal Liability, pp. xlix-1. Ibid., p. lii. Ibid., p. liii. Ibid., p. liv. Bureaucracy Triumphant, p. 105. 197

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had by this time disappeared. Another equally false notion now took its place. This was the belief that civil servants were engaged in a secret conspiracy to steal from us our hard-won constitutional rights and liberties. Lord He wart's book, and innumerable polemical articles and speeches of the 1930s, gave the impression that when honest men were abed civil servants were stalking the streets in the dead of night disguised in masks and cloaks and with dagger in hand, waiting to pounce on any undefended powers which they might be able to snatch for their fell purposes. The old struggle between the King and Commons had become transformed into a conflict between the legal profession and the civil service. One of the more fortunate results of the Donoughmore Committee on Ministers' Powers which reported in 1932 was that it disposed once and for all of this conspiratorial theory of executive power. Since then it has gradually become plain that the problem to be solved is not how to prevent one branch of government from " encroaching " on the rightful domain of the others, or " usurping " powers belonging to them, but rather how to make the Administrative State more fully responsible to the citizen for its actions than it is at present. Politicians were for long singularly blind or indifferent to the existence of this problem. They are now beginning to show an occasional interest in the need to safeguard the citizen more effectively in his dealings with the State. Both political parties favour a strong executive; and both have contributed to the vast increase in the powers of public authorities which has occurred during this century. Neither of them appears to understand that the greater the powers given to the executive, the greater the need to safeguard the citizens from their arbitrary or unfair exercise. Conservative opinion, which in the past showed an unfailing and almost mystical confidence in the ability of the courts to establish and maintain a genuine system of administration according to law, has recendy awakened to the fact that the courts are neither able nor willing to control public authorities effectively. The real point about the Crichel Down affair was that the maladministration there disclosed revealed no grounds of illegality for which a court would have provided a remedy. The pamphlet entitled Rule 198

Administrative

Law

of Law produced by the Inns of Court Conservative and Unionist Society in 1955 showed a distinct absence of complacency and a desire for change, though the reforms proposed did not go nearly far enough to achieve the objects in view. This pamphlet represents a mild revolt from the Right at the helplessness of the citizen who seeks redress from arbitrary or unfair action by a department. There are indications of a changed attitude in the Labour Party also. Most Labour politicians have assumed until recently that the elected representatives of the people in Parliament or on local councils would suffice to protect the citizen from suffering injustice at the hands of the great Leviathan. Signs of a growing uneasiness at this assumption are to be found, for example, in Mr. R. H. S. Crossman's Fabian pamphlet entitled Socialism and the New Despotism published in 1956. In it he declared that " the growth of a vast centralised State bureaucracy constitutes a grave potential threat to social democracy. The idea that we are being disloyal to our socialist principles if we attack its excesses or defend the individual against its incipient despotism is a fallacy." Very belatedly the Fabian Society has turned its attention to the problem 16 ; and the Labour Party recendy published a policy pamphlet entitled Personal Freedom. This pamphlet adopted the main recommendations of the Donoughmore Report, which was issued in 1932! The climate of opinion has thus changed in that both the major political parties have become, to some extent, conscious that the control by law of public administration in the modern State is a vital problem which has not been solved or even faced in this country. 2. The Scope and Nature of Administrative

Law

We may now consider how far ideas about the scope and nature of administrative law have altered during the present century. Dicey, as we have seen, concentrated almost exclusively on the tribunaux administratifs in his description of the French system; although the contentieux administratifs is only a small part of that system. 18

See Justice and the Administration, No. 185 (1957).

by Gordon Borne. 199

Fabian Research Series,

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Developments

During the 1930s the belief arose that administrative law in Britain is exclusively concerned with the exercise by Ministers and departments of legislative powers delegated to them by Parliament on the one hand; and with judicial functions performed by administrative tribunals or Ministers on the other. The reasons for this narrow and mistaken conception of the subject are complex and obscure. One factor was that specialised treatises on these topics had demonstrated their undoubted importance.17 Another was that, as a result of Dicey's teaching, even educated opinion had come to identify administrative law only with the law emanating from the executive and not with law establishing and organising and regulating the organs of government. A third and more potent factor was the reluctance to recognise public law as something distinct from private law. This reluctance was rooted in the constitutional struggle which took place in the seventeenth century. An essential feature of the revolutionary settlement was to ensure that the judges were independent of the power of the Crown. Henceforth there was to be one system of law to which all would owe obedience; and the only prerogatives permitted to the King would be those recognised by the law. This conception of an indivisible system of law and a single judicature commanding universal obedience from public authorities and citizens alike, seemed to be threatened not only by the emergence of administrative tribunals but also by the mere recognition of a separate body of public law even though it were subject to the jurisdiction of the ordinary courts. It was this influence which probably played the largest part in delaying an understanding of the proper scope and nature of administrative law. The only logical conception of administrative law is that it is the law relating to public administration, just as land law is the law relating to land, or commercial law the law relating to commerce. It comprises the law which determines the organisation of public authorities; the legal powers which such authorities possess, whether legislative, judicial or administrative; the law regulating the civil service and other public officials; the legal relations between central departments and local authorities, and between Ministers and public 17

For example, C. T . Carr, Delegated Legislation-, F . J. Port, Adminstrative Law, and my own book, Justice and Administrative Law.

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corporations or boards; the duties and liabilities of public authorities; the judicial control of administration; and (of course) administrative tribunals and delegated legislation.18 This broader conception of the subject is becoming more widely accepted today in the law schools,18 but it is far from being generally recognised by practising lawyers, politicians or officials.20 The emerging conception of administrative law is, then, that it is concerned with the specific legal framework within which public administration is carried on. Its ramifications extend to the various functions which form the subject-matter of government, such as national insurance, housing, the administration of labour legislation, fire protection, taxation, nationalised industries, the health services, education, town and country planning, and so forth. The detailed legal provisions of these various spheres of activity may be regarded as specialised branches of administrative law which for practical purposes are largely separate and selfcontained. In case anyone should imagine that an understanding of the proper nature and scope of administrative law is a matter of academic interest only, I will recall an extraordinary incident which occurred in 1942 during a secret session of Parliament. Mr. Winston Churchill (as he then was) was explaining to an uneasy House of Commons why the Allied forces which had invaded French North Africa had accepted the services of Admiral Darlan, who was closely associated with the Vichy regime, and generally believed to be hostile to the Allied cause. The Prime Minister told the Commons that the actions of many French officers and officials were governed in times of stress and strain by a principle founded on droit administratif. This highly legalistic attitude, he said, made their actions depend on the existence of a direct, unbroken chain of lawful command linking those who wield 18

19 20

T h e views of Sir Ivor Jennings and Professor E . C. S. Wade broadly coincide with my own on this question of the proper scope of administrative law. See W . I. Jennings, The Law and the Constitution, 3rd ed., p. 194; and E . C. S. Wade, Appendix to A. V. Dicey, Law of the Constitution, 9th ed., pp. 481-482. J. A. G. Griffith and H . Street, Principles of Administrative Law, 2nd ed., p. 3. The late Lord Waverley (who as Sir John Anderson was a member—and in my own recollection the most effective member—of the Donoughmore Committee) dissented from my treatment of the subject in such wide terms in a study I contributed to a symposium on British Government developments since 1918, published in 1950. See his introduction to British Government since 1918 (Allen and Unwin, 1950), p. 6.

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power at any time with those who previously were clothed with lawful authority. The French soldiers in the North African theatre of war had joined forces with the Allied troops against the German and Italian forces in accordance with the orders and authority issued by or declared to emanate from Marshal Pétain. This, said Mr. Churchill, was the justification for our using Darlan.21 Even in a country which has never understood administrative law it was astonishing that the Prime Minister should confuse droit administratif with légalité. I turn now from the world of thought to the world of action, to consider developments in the corpus of administrative law which have occurred in the twentieth century. 3. The Corpus of Administrative Law The most obvious feature of the period is the immense growth in the volume and scope of administrative law. The reasons for this are clearly to be found in the vast expansion of public administration in almost every direction. The first half of the twentieth century witnessed an extraordinary series of emergencies calling for drastic action by the Government. There was the First World War; the general strike of 1926; the prolonged depression with its vast burden of mass unemployment; the economic crisis of 1931; the outbreak of the second world conflict waged in terms of total war, involving evacuation, the bombing of our cities, and the destruction of civilian life and property on a huge scale. Not less powerful in their impact were the radical reforms introduced by the Liberal Government of 1906; and the still more far-reaching programme of reform carried out by the Labour Governments of 1945-51. These historic events and policies resulted in a substantial growth in the organisation of the executive and a widening of its functions. The chief source of administrative law today is the legislation, original or subordinate, establishing new departments and public corporations, and authorising the enlarged schemes of education, national insurance and assistance, public health and the national health service, housing, town and country planning, the regulation 21

Charles Eade, Winston Churchill, Secret Session Speeches (1946), pp. 81-82.

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of agriculture, the administration of the nationalised industries, and similar matters. It is not possible to review this mass of legislation in detail. Among its outstanding characteristics I would mention the great increase in the powers given to Ministers to direct and control local authorities; the emergence of a highly developed and mature conception of the public corporation; the use of legislation to establish modern government departments; the greater flexibility made possible by permitting the transfer of functions between departments by statutory instrument; and the formulation of ministerial powers in subjective terms. Until recently the normal practice was to confer statutory powers on public authorities in terms which enabled their action to be reviewed by a court if it were pleaded that the conditions precedent to the Minister's action had not been satisfied. In recent years Parliament has passed much legislation which states that where a Minister is satisfied that certain facts exist, or where it appears to him that something has occurred or is required, he can thereupon exercise the powers specified in the enactment. The House of Lords decided in Liversidge v. Anderson 22 that where the Home Secretary was authorised to detain a person whom he " has reasonable cause to believe . . . to be of hostile origin or associations, or to have been recendy concerned in acts prejudicial to the public safety or the defence of the realm," the matter was one exclusively for the Home Secretary. The standard of reasonableness is not an impersonal or objective standard which could be examined by a court but a personal standard of what the Home Secretary himself deemed reasonable. The House of Lords decided by a majority that no court could consider whether the administrative discretion vested in the Secretary of State had been properly exercised or not. In recent years there have been signs of uneasiness in high judicial utterances at the implications of this decision and one or two isolated attempts to limit its applicability.224 Even where statutory powers are not formulated in subjective terms, one can detect an increasing reluctance on the part of the 22 [1942] A.C. 206. " a Nak_kuda Alt v. Jayaratne [1951] A.C. 66 (P.C.), at pp. 76-77, where Lord Radcliffe denied that the " subjective " approach in Liversidge v. Anderson is of general applicability. See also Director of Public Prosecutions v. Head [1958] 2 W.L.R. 617 (H.L.), especially Lord Denning at p. 632.

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courts to interfere with ministerial discretion. In Spares v. Edward Ash 23 the Court of Appeal refused to consider the reasonableness of ministerial regulations relating to pedestrian crossing places made in 1941, although they were virtually impossible to operate in the black-out, on the ground that the courts had a duty to recognise and trust the discretion of a Minister direcdy responsible to Parliament. We might expect an indulgent attitude to be shown by the courts towards Ministers and their departments at a critical stage of the Second World War when the nation was in imminent danger and departments were staggering under their burdens. But the movement towards an increasing recognition of the right of public authorities to determine matters within their jurisdiction without judicial interference or even scrutiny has continued long after 1945. In Associated Provincial Picture Houses, Ltd. v. Wednesbury Corporation 24 Lord Greene M.R. remarked that local authorities are clearly entrusted by Parliament with deciding matters which they can best deal with by virtue of their knowledge and experience. Where a local licensing authority makes decisions about cinemas, the court will only inquire whether relevant matters were taken into consideration and irrelevant factors were excluded. It will not concern itself with the reasonableness of the decision. A similar doctrine has been applied even more forcibly to the decisions of local and central planning authorities.25 A more severe attitude was shown, however, by the Court of Appeal towards a local authority in Prescott v. Birmingham Corporation.25a The Crown Proceedings Act, 1947, was the result of a long agitation in which legal opinion played a dominant part. This important statute abolished the traditional immunity of the Crown in tort, and for the first time made the State legally responsible for many of its actions. But it is typical of our failure to grapple with the substance of the problem of the legal responsibility of the executive that the Act of 1947 did no more than assimilate—and « [1943] 1 K . B . 223. M [1948] 1 K . B . , at pp. 2 3 0 - 2 3 1 , 233-234. 25

Taylor v . Brighton Borough Council [1947] K . B . 736, at p. 742; Swindon Corporation v . Pearce and Another [1948] 2 K . B . 301; Robinson and Others v . Minister of Town and Country Planning [1947] K . B . 702, at p. 713. " a [1955] Ch. 210, at p. 227.

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that only partially—the liabilities of government departments to those of a private citizen. How inadequate and inappropriate this private law approach can be is shown by a case like Tracers v. Gloucester Corporation and Another.2t In that case a man lodging in a council house was asphyxiated in his bath by poisonous fumes emitted by a geyser, which was turned off at the time of his death. The house was one of a large number built by the Gloucester Town Council in which geysers had been fitted under the directions of the borough architect. The gas company had warned the local authority that the method of fitting geysers was dangerous, but no alteration had been made at the house where the fatality occurred. At the trial the judge decided with regret that he must apply the law governing the rights and duties of private landlords and tenants which had been evolved in the middle of the nineteenth century. This excluded any liability on the part of the town council for accidents to a tenant's customers or guests. To assimilate the position of a local housing authority to that of a private landlord in the nineteenth century is surely to ignore the spirit and purpose of modern housing legislation. A great number and variety of disputes between public authorities and individuals have been entirely excluded from the jurisdiction of the courts and entrusted to the determination of administrative tribunals or of a Minister, whose decision is often final. The House of Lords held in the celebrated Arlidge case27 that a government department entrusted with appellate judicial functions is free to arrive at its decisions by whatever methods it considers appropriate. Provided the work is carried out fairly no other body except Parliament can review what it does. The immense array of tribunals which now exist have all come into existence during the present century, though a few of the judicial powers of Ministers date back to the nineteenth century or earlier. It is not possible to embark here on a survey of administrative tribunals. They are to be found in almost every branch of public administration, such as transport, the national health service, agriculture, national service, social insurance, public assistance, 26

«

[1947] K.B. 71. [1915] A.C. 120.

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housing, nationalised industry, town and country planning, education, trade and commerce, family allowances, the regulation of trade unions, valuation for rating, highways and bridges, and many branches of local government. I must now say a few words about the Franks Committee on Administrative Tribunals. The Franks Committee were not authorised to inquire into the wider realm of administrative law or justice. Their terms of reference limited them to investigating first, administrative tribunals; and secondly, the working of administrative procedures which include a public inquiry or hearing by or on behalf of a Minister on an appeal or as a result of objection or representation, and in particular the procedure for the compulsory purchase of land. The Committee were precluded from looking into the vast mass of departmental decisions, whether administrative or judicial, in which no formal procedure is prescribed and the determination is simply a matter of ministerial discretion. The Committee recognised, however, that in these circumstances the individual is virtually unprotected against an unfair or wrong decision; but they felt unable to make any recommendations thereon. The Franks Committee declared that administrative tribunals have now become a permanent and valuable part of our constitutional system and that their importance is likely to grow rather than diminish. Their acceptance of administrative tribunals went far beyond the grudging admission of the advantages possessed by such tribunals accorded by the Donoughmore Report twenty-five years ago. It is a sign of the more sane and balanced outlook which is found in contemporary opinion on the subject. The report laid down a number of general principles which should govern the procedure of tribunals and public inquiries to ensure that the principles of openness, fairness and impartiality shall be applied to the fullest possible extent. These have nearly all been accepted by the Government, including the controversial and hotly disputed recommendation requiring the publication of the inspector's report. The general effect of the reforms, so far as public inquiries are concerned, is to bring the decision-making process more into the light of day instead of remaining shrouded in secrecy and mystery. Ministerial policy is to be transferred from the realm of the unknowable to the sphere of the ascertainable. 206

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The report laid down a uniform system of appeals to appellate tribunals and to the courts. Administrative tribunals are to be brought into organic relation with the ordinary courts by means of an appeal on points of law. The Government were somewhat dubious about this proposal and I regard it with great misgivings. There may be a case for judicial review of administrative tribunals where the members of the tribunal have shown bias or prejudice or used their powers to further improper purposes or acted under the influence of extraneous considerations; but to give a general right of appeal to the courts in every case on points of law may well jeopardise the advantages of adjudication by administrative tribunals. As part of the same policy, the Franks report has tried to sever administrative tribunals from the departments with which they are at present associated and to give them a greater degree of independence. This is to be brought about by handing over to the Lord Chancellor the power of appointing the chairmen, which is in most instances now done by the departmental Ministers; and by requiring these Ministers to consult the Lord Chancellor's Standing Council on Tribunals on many different matters which at present lie within their unfettered discretion. Lasdy, the Government have adopted the Committee's recommendation to create a Standing Council on Administrative Tribunals, which should serve as a permanent focus of interest, knowledge and scrutiny of administrative tribunals and public inquiries. This body has a statutory basis; and it is appointed by and will report to the Lord Chancellor. The report contains many recommendations which have received widespread support in both Houses of Parliament from members of all parties. Few of the Committee's proposals have aroused opposition, and both the Conservative Party and the Labour Party have applauded the report. So far as the judicial review of public administration is concerned, there can be little doubt that the position of the courts has waned in a marked degree since the turn of the century. A chief cause of this decline is to be found in the legislation to which I have already drawn attention, for this has often either excluded or restricted the action of the courts, or made it difficult to apply effectively to excessively wide grants of power. The rise 207

Legal Developments of administrative tribunals has been another potent factor. But the courts themselves have contributed largely to their own decline. An important cause has been the strong tendency to hold that a purely administrative decision can be invalidated only on grounds of ultra vires or of a defect in procedure. In consequence, so long as a public authority keeps within its powers and follows whatever procedure may be prescribed, it is extremely unlikely that a court will be persuaded to inquire into its conduct or to set aside its decision. The only ground on which an action is likely to succeed is if it can be shown that administrative powers have been used for an unauthorised purpose or without taking into account relevant considerations; or that the authority behaved in a manner which displayed manifest injustice. Otherwise the court will not consider the manner in which executive discretion has been exercised. Thus, what may be called judicial self-limitation has severely restricted and diminished the role of the courts in reviewing public administration. After all, the courts generally determine their own jurisdiction and the grounds on which they will give redress.27® Judicial review of administrative action could be much more far-reaching and comprehensive than it is today, if the judges had resolved to make it so. The voluntary contraction of judicial power may be partly due to a feeling of diffidence on the part of the judges concerning their ability to deal with the highly complex and often technical matters which form the subject-matter of modern public administration. It is this which inter alia justifies the demand for an Administrative Court of Appeal, the members of which would include persons with administrative experience. But this would not explain the tendency of the courts to diminish the degree of liability falling on public authorities towards individual citizens who use the services they provide. An example is Ellis v. Fulham Borough Council,2* in which the Court of Appeal decided that a small boy paddling in a pool provided by the local authority for that purpose has the rights only of a licensee, and not those of an invitee, which would demand a much higher standard of care by the local authority. In Sutton v. Bootle Corporation 29 a little girl had her finger crushed in a checking device on a plank swing in a municipal 27a Harper v. Home Secretary [1955] Ch. 238. 28 [1937] 1 K.B. 212. 2» [1947] K.B. 359.

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recreation ground. Her claim failed because she was only a licensee and the local authority were not responsible for dangers of which they were unaware. If she had been treated as an invitee the local authority would have been liable.30 There has been, unfortunately, during the past fifty years a conspicuous absence of creative innovation by the courts in regard to legal doctrines, procedure, the forms of action, the remedies which will be granted, or the organisation of the courts, so far as judicial review of executive action is concerned. The conception of natural justice, which could have been expanded to cover many aspects of administrative conduct—and might, indeed, have dealt with many of our present discontents (including Crichel Down)— has remained static, and the rules of natural justice have now exhausted their usefulness. It is still necessary to prove negligence or nuisance in most cases where the action of a public authority is called in question. There is no sign of the recognition of the doctrine of absolute risk, whereby a public authority could be held liable for injuries to person or property from causes inherent in the functions it performs, irrespective of any fault or neglect. One of the few spheres in which there has been an advance is the liability of hospitals towards their patients. The earlier decisions at the beginning of the century established that a hospital authority which takes care to appoint a properly qualified medical staff and to provide adequate equipment and premises would not be liable for negligence in medical matters. This doctrine was based on the principle that a consulting physician or surgeon is an independent professional practitioner who is not subject to instruction about his work. Hence the relationship of master and servant does not exist between him and the hospital authority so as to make the latter liable for his wrongdoing. Thus, in Evans v. Liverpool Corporation,30* where a boy's brothers caught scarlet fever as a result of his being prematurely discharged from hospital, it was held that the Corporation was not liable for the negligence, if any, of the doctor concerned. They had employed a competent medical T h e decisions resulting from the distinction between licensees, invitees, trespassers, and persons entering land under a contract were so confused and often unjust that the law was radically changed by the Occupiers' Liability Act, 1957, which abolished all these distinctions. 3 » a [1906] 1 K . B . 160.

30

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man, and although he was paid an annual salary he was not in the position of a servant. Another leading case, Hillyer v. St. Bartholomew's Hospital,31 applied the same principles in limiting the liability of the hospital. Farwell L.J. explained that even the nurses, who were normally servants of the hospital, ceased to be in that position when they were under the control of a surgeon. In consequence, the hospital would not be vicariously liable for the negligence of a nurse acting under the directions of a surgeon during an operation or examination. In Lindsey County Council v. Marshall33 the question in issue was whether the County Council were liable for damages to the plaintiff, who had contracted puerperal fever in a maternity home provided by them. An outbreak of puerperal fever had occurred at the home shordy before Mrs. Marshall was admitted but neither she nor her own doctor (who was attending her) were informed. The court of first instance found that the County Council had been negligent in admitting new patients after the outbreak first occurred, in not informing the plaintiff or her doctor, or in not taking swabs from every member of the staff. The decision in favour of the plaintiff was upheld in the Court of Appeal and in the House of Lords. The Lord Chancellor rejected the plea that the defendants were entided to rely on their medical advisers. They had a duty laid upon them by law and they were responsible for the mistakes of their agents. Although the plaintiff was not receiving medical treatment from physicians or surgeons on the staff of the hospital, the decision in this case involves a substantial widening of the responsibility of the hospital authority. In Gold v. Essex County Council33 a visidng dermatologist at a county hospital prescribed facial treatment by Grenz rays for the plaintiff. This was given by a qualified radiographer who on one occasion negligently failed to screen the patient's face properly, with the result that she suffered injury. The trial judge exculpated the County Council on the ground that they had appointed a competent radiographer and were not responsible for his negligence in a professional matter. The Court of Appeal reversed the decision and raised the standard of liability much higher. The Public Health [1909] 2 K.B. 820. 3 2 [1937] A.C. 97. 3 3 [1942] 2 K.B. 293.

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Act, 1936, imposed an obligation on local authorities if they decided to exercise the powers conferred on them to treat patients. In consequence the authority would be liable if the persons they employed were to act negligently. If a nurse were negligent the council would be liable, although a nurse who carries out with due care the instructions of a surgeon or doctor would not prima facie be held to have acted negligently, however negligent the instructions might be; and therefore the hospital authority would not be liable for the results of her action in such circumstances. In this case, however, the radiographer was acting on his own responsibility and according to his own judgment. The County Council was therefore liable for his negligence. In 1947 a hospital authority was held liable for injury caused by defects in the system of controlling the supply of dangerous drugs. In Collins v. Hertfordshire County Council and Another34 a visiting surgeon gave instructions by telephone to a medical student acting as resident junior house surgeon about an operation he was to perform next day on the plaintiff's husband. The surgeon ordered procaine; but this was misunderstood and cocaine was dispensed instead. The patient died immediately the solution was injected. No written instructions were given to the pharmacist, and the solution was not supplied in a coloured " poison " botde with fluted sides. The County Council were held liable for the negligence of the resident junior house surgeon, who was their servant, but not for that of the visiting surgeon, who was responsible as a joint tortfeasor. In 1951 the Court of Appeal extended the liability of hospital authorities much further in Cassidy v. Ministry of Health.35 Here an operation had been carried out on the plaintiff's hand; and as a result of negligent post-operational treatment it had become useless. The court held that both the surgeon who had performed the operation and the house surgeon who had assisted him were both employed under contracts of service. The hospital authority were therefore liable under the doctrine of respondeat superior.3" Denning L.J. considered that the exact nature of the relationship between the hospital authority and the surgeon was immaterial. 3* [1947] K.B. 599. 35 [1951] 2 K.B. 343. 3 6 See also Jones v. Manchester

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[1952 ] 2 Q.B. 852.

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Developments

In his view, if the authority, and not the patient, employed him, whether as a servant or an independent contractor, they were liable. In Roe v. Minister of Health 37 an action was brought by a patient who had been paralysed owing to being injected with a fluid which was contaminated by phenol. The court held that although the accident could have been avoided there was no negligence, and the action therefore failed. It is worth noting, however, that Somervell L.J. expressed some doubt about the distinction which he had made in Cassidy's case between a hospital authority's liability for the acts of their servants and their non-liability for those not in the position of servants.38 The extended liability of hospital authorities is a great safeguard to everyone who uses the National Health Service. Moreover, in addition to their liability in respect of medical matters, hospital authorities have recently been made answerable for negligence in respect of their patients' property and also for the state of their own property. In Martin v. London County Council39 some valuables belonging to a paying patient were taken into custody by the hospital authorities, and were subsequendy stolen. It was held that the authorities were bailees for reward, and they were liable because they had not shown the requisite degree of care in their custody of the valuables/ 0 In Slade v. Battersea and Putney Group Hospital Management Committee 4 1 a woman whose husband was a National Health Service patient visited him after being informed that he was dangerously ill and that she could visit him at any time. She injured herself by slipping on a floor on which polish had recendy been spread. She recovered damages. Finnemore J. held that she «

[1954 ] 2 W . L . R . 915. A s to the degree of care imposed, see Roe v . Minister of Health, above; Nicfolls v . Ministry of Health [1955] C . L . Y . 1902; The Times, February 4, 1955 ( C . A . ) (surgeon fit to perform operation even though suffering f r o m l u n g cancer); Cox v . Carshalton, etc., Committee [1955] C . L . Y . 1852; The Times, March 29, 1955 ( C . A . ) (child scalded in nurse's absence by hot inhaling liquid placed on lap; method had been successful when done under supervision. N o negligence); Graverstoc\ v . Lewisham, etc., Committee [1955] C . L . Y . 1853; The Times, May 27, 1955 (per Streatfeild J . , duty of hospital committee on disciplinary side n o higher than that of schoolmaster; i.e., that of ordinary prudent parent); Bolam v. Friern, etc., Committee [1957] 2 All E . R . 118 (no w a r n i n g given of dangers of treatment by electro-convulsive therapy. N o liability). 3» [1947] K . B . 628. 4 0 Presumably the hospital authorities would be bailees for reward if they appropriated property belonging to a National Health Service patient. Cf. Finnemore J. in Slade's case, below. « [1955] 1 All E . R . 429. 38

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was an invitee, and suggested that anyone entering a State hospital might be an invitee, as he contributed towards it. 42 The absence of an effective system of judicial review of administration is an unhealthy state of affairs. It is bad for the executive, bad for the judiciary, bad for the citizen, and detrimental to good government. Devlin J., in a recent address to the Bentham Club, said that the common law has now no longer the strength to provide any satisfactory solution to the problem of keeping the executive, with all the powers which under modern conditions are needed for the efficient conduct of the realm, under proper control. " Since that cannot be effectively done under the law as it stands," he observed, " there must be created a new body of law of the sort that has come to be called administrative law." 43 He ended his address by saying it does not matter where the law comes from; whether from equity or from the old common law or from some source as yet untapped. It is immaterial whether it is made by Parliament or by judges or even by Ministers; " what matters is the law of England." These are remarkable words to come from one of Her Majesty's judges, and they are notable alike for their realism, their insight, and their courage. So far, no committee or royal commission, nor either House of Parliament, has examined the most important questions which confront us in the realm of administrative law. These relate to the methods by which a citizen can be given a reasonable opportunity to obtain redress when he is a victim of maladministration or has suffered injury without any existing legal right having been infringed. The judicial powers of Ministers have escaped scrutiny by the Franks Committee; and both these and the vast mass of administrative powers require analysis, classification, reconsideration and a greater degree of coherence. The organisation of the central government is only partially regulated by law and the number, size and ambit of departments are varied almost every time a new government takes office—often for personal reasons. This is flexibility run riot. The civil service, again, should be properly * 2 It was also held that she could recover either as a licensee (the polish ranked as a concealed danger) or for negligence. * 3 " Public Policy and the Executive," by Sir Patrick Devlin, in Current Legal Problems, Vol. 9 (1956), p. 15.

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regulated with a code of enforceable rights and duties, instead of being left entirely to the mercy of the Crown and constitutional ethics. I should like to deal with these and similar matters at greater length; but I see the ghost of Dicey pushing its head through the door. So I must conclude this brief review of half a century's changes in thought and action. We have seen great changes and made some progress during the past fifty years; but we still have a long way to go before we shall be able to claim that we have a system of administrative law. Meanwhile we do not live under a régime of administration according to law in any complete or significant sense of the term so far as the great majority of administrative decisions or activities are concerned.

214

LABOUR LAW 0.

KAHN-FREUND

I. General Observations AT the risk of seeming to indulge in a paradox, I must begin my discussion of the relation between public opinion and labour law by stating that few branches of the law have been less changed in their fundamentals since Dicey's day. When in 1914 Dicey published the second edition of his book,1 most of the great legislative and judicial battles in this field had been fought, and the foundations of social and industrial legislation had been well and truly laid. In some respects the principal patterns of labour legislation had been established in the nineteenth century, such as the codes intended to reduce the risk of industrial accidents in factories and mines,2 to regulate the hours of work of women and young persons,3 and to determine the method of wage payments,4 and the major rules governing the status of trade unions.5 In many ways, however, the era of the Liberal Governments of CampbellBannerman and of Asquith was the formative period of British labour law: between the South African War and the First World War minimum wage legislation was inaugurated,6 and the cornerstone was laid of the edifice of modern social security law,7 the 1

The date of the Preface is "October 1914," but it shows no sign of awareness that the events of the day might have some bearing upon the subject-matter of the book. 2 Culminating in the Factory and Workshop Act, 1901 (1 Edw. 7, c. 22), and in the Coal Mines Act, 1911 (1 & 2 Geo. 5, c. 50). Nor should the Merchant Shipping Acts remain unmentioned. The most important Acts were those of 1894 (57 & 58 Vict. c. 60) and of 1906 (6 Edw. 7, c. 48). 3 Factory and Workshop Act, 1901, ss. 23 et seq.-, Coal Mines Act, 1911, ss. 91 et seq.; Metalliferous Mines Regulation Act, 1872 (35 & 36 Vict. c. 77), ss. 5 et seq. The principal statute on child employment then in force was the Employment of Children Act, 1903 (3 Edw. 7, c. 45). 4 Truck Act, 1831 (1 & 2 Will. 4, c. 37); Truck Amendment Act, 1887 (50 & 51 Vict. c. 46); Truck Act, 1896 (59 & 60 Vict. c. 44); Coal Mines Regulation Act, 1887 (50 St 51 Vict. c. 58), ss. 12 et seq. 5 Trade Union Act, 1871 (34 6t 35 Vict. c. 31); Trade Union Act Amendment Act, 1876 (39 & 40 Vict. c. 22). « Trade Boards Act, 1909 (9 Edw. 7, c. 22). 7 Workmen's Compensation Act, 1906 (6 Edw. 7, c. 58); Old Age Pensions Act, 1908 (8 Edw. 7, c. 40); National Insurance Acts, 1911 and 1913 (1 & 2 Geo. 5, c. 55; 3 & 4 Geo. 5, c. 37).

215

Legal Developments nineteenth-century legislation designed to safeguard the individual's freedom of organisation 8 and freedom of strike* was completed by the Trade Disputes Act, 1906,10 and, one year before Dicey published his second edition, the burning question of the trade unions' political activities was answered by a compromise.11 Although the Ministry of Labour and its Industrial Relations Department had not yet seen the light of day,12 the principal functions of that Department in setding disputes were already exercised by the Board of Trade under a statute 13 passed in 1896, two years before Dicey delivered his lectures at the Harvard Law School. This is a somewhat haphazard and incomplete enumeration of legislative measures but it will suffice to show that what has been achieved in this field since the outbreak of the First World War was a very considerable widening of the scope of existing principles rather than the formulation of new ones. With a good deal of exaggeration I may say that all the tendencies of legal development I am about to discuss had already become visible when Dicey sent the manuscript of the famous Introduction to his second edition to the printers. You will probably say that this is surprising. After all, you may say, is it not true that middle-class opinion towards trade unions underwent a remarkable change in this half-century? Have collective bargaining methods not been thoroughly transformed, and has the volume of industrial stoppages not been reduced to a fraction of what it used to be? Are we not talking about a period which included two world wars, a general strike, and a depression and unemployment of unheard-of dimensions? Can it really be suggested that the general pattern of British labour law emerged unscathed from this multiple ordeal by fire? The plain fact is that it did. Still, no miracle has occurred, unless you call it a miracle that the social structure of this island is exceptionally stable and its population exceptionally homogeneous. 8 9 10 II 12 13

Combination Laws Repeal Act, 1824 (5 Geo. 4, c. 95); Combination Laws Repeal Act Amendment Act, 1825 (6 Geo. 4, c. 129). Conspiracy and Protection of Property Act, 1875 (38 & 39 Vict. c. 86). Trade Disputes Act, 1906 (6 Edw. 7, c. 47). Trade Union Act, 1913 (2 & 3 Geo. 5, c. 30). It was created under the New Ministries and Secretaries of State Act, 1916 (6 & 7 Geo. 5, c. 68). Conciliation Act, 1896 (59 & 60 Vict. c. 30). The Labour Department of the Board of Trade had already been created in 1893: Amulree, Industrial Arbitration in Great Britain, p. 109.

216

Labour Law Even so it is noteworthy that almost all the major legislative measures in relation to labour which were taken under the impact of the two world wars and of the general strike have again disappeared. Compulsory arbitration, so important a feature of the First World War," was abolished even before the Peace Treaties had been signed,15 and though it persisted after the Second World War—in a sense it is still with us 1Sa—it was at least deprived of its " teeth " as soon as in peacetime it attempted a modest " bite." " Wartime controls of the labour market, from the Munitions of War Acts 17 of the First World War to the direction of labour 11 and Essential Work Orders 19 of the Second, vanished in the sun of peace like snow in the spring, and " freedom of contract" emerged triumphant.20 The anti-trade union Trade Disputes and Trade "

Munitions of War Acts, 1915, 1916 and 1917 (5 & 6 Geo. 5, c. 54; 5 & 6 Geo. 5, c. 99; 7 & 8 Geo. 5, c. 45). For their operation, see Amulree, supra, Chaps. 1315; Askwith, Industrial Problems and Disputes, Chaps. 36-39. 15 Compulsory arbitration continued under the Wages (Temporary Regulation) Act, 1918 (8 & 9 Geo. 5, c. 61), passed on November 21, 1918, for six months, and extended for further six months by the Wages (Temporary Regulation) Extension Act, 1919 (9 U 10 Geo. 5, c. 18), but when the Government " thought it worth while to test feeling on the question of giving some mild measure of compulsion '' to the findings of the new Industrial Court which was then being established, it met with resistance, especially on the part of the trade unions. (Amulree, supra, p. 171.) 15 a It has now been revoked: Industrial Disputes (Amendment and Revocation) Order, 1958 (S.I. No. 1796). 18 After the prosecution of a number of leaders in the Dock Strike of 1951 (see Annual Register, 1951, p. 34) the Conditions of Employment and National Arbitration Order, 1940 (S.R. & O., 1940, No. 1305), was revoked, and replaced by the Industrial Disputes Order, 1951 (S.I. 1951, No. 1376), under which (see Ait. 12 (3)) all penal sanctions have disappeared. This, too, has now been revoked: see previous note. 17 See Wages (Temporary Regulation) Act, 1918, s. 6. "Leaving certificates" which were the nearest parallel to the Essential Work Orders of the Second World War had already been abolished on October 15, 1917. See Askwith, supra, p. 431. 18 For a survey of the relevant wartime legislation and its application in practice, see Ministry of Labour and National Service, Report for the Years 1939-1946, Cmd. 7225, esp. Chaps. VII and X. The legal basis of the direction of labour was Defence Regulation No. 58A (S.R. & O., 1940, No. 781), made in virtue of the Emergency Powers (Defence) Act, 1940 (3 & 4 Geo. 6, c. 20). 19 There were numerous Essential Work Orders, the first and most important of which was the (subsequently amended) Essential Work (General Provisions) Order, 1941 (S.R. & O., 1941, No. 302), based on Defence Regulation 58A, supra. Wartime controls of the labour market included also other measures, e.g., registration for employment and control of engagements. 20 See Ministry of Labour and National Service Report for 1939-46, supra, Chap. XVIII; for 1947, Cmd. 7559, Chap. 4; for 1948, Cmd. 7822, Chap. 3; for 1949, Cmd. 8017, Chap. 2. Excluding the Merchant Navy, Dock Labour, and Trawler Fishing, the number covered by Essential Work Orders in December 1945 was more than 8yi million, and in January 1947, 185,000 (Cmd. 7225, App. V, p. 340), and by the end of June 1947 the withdrawal of industries from the Essential Work Orders was completed (Cmd. 7559, p. 31), and the final step of revocation taken by S.I. 1949, No. 642, see Cmd. 8017, p. 15. The power to

217

Legal Developments Unions Act of 1927,21 a measure passed by a Conservative Government after the general strike, was repealed by a Labour Government in 1946.22 W e have not heard of any plan to reintroduce it. Nor did the Labour Government replace it by another measure: in the decisive question of the trade unions' political fund it simply restored the law as it had been before 1926, that is, as it had been enacted a year before Dicey published his second edition.23 Characteristically enough, two measures during both wars on which organised labour insisted were aimed at the " restoration of pre-war trade practices." 24 I do not, of course, mean to suggest that the period since 1914 has been an era of what Dicey called " legislative quiescence." Very far from it. But in the field of labour it was not a period of legislative inventiveness. In the development of industrial relations, war has been the father of many things, but in the creation of new legal principles it contributed, in this country, very little of permanent importance. This is not a matter of course, as the contrast to Continental countries plainly shows.25 You can easily see that my task is very different from that of Professor Gower who, a few weeks ago, spoke in this series on Business and the Law. Remember how very different the relation between government and business was in 1914 from what it is today, and remember also the great and fundamental changes in the law of controls which have occurred during this period. The triangular relationship between organised labour, organised management and government, which is the framework of all labour law in this country, obtained firm foundations after 1914, but it was direct labour continued under Defence Regulation 58A, extended by the Supplies and Services (Transitional Provisions) and (Extended Purposes) Acts, 1945 and 1947 (9 & 10 Geo. 6, c. 10; 10 & 11 Geo. 6, c. 55), but was sparingly exercised (Cmd. 7559, p. 30; Cmd. 7822, p. 20; Cmd. 8017, p. 14), and disappeared in practice with the removal of the last wartime controls of the labour market in March 1950 (S.I. 1950, No. 329; see Cmd. 8338, p. v). 2 1 17 & 18 Geo. 5, c. 22. 2 2 Trade Disputes and Trade Unions Act, 1946 (9 & 10 Geo. 6, c. 52). 23 Trade Union Act, 1913 (2 & 3 Geo. 5, c. 30). 2 4 Restoration of Pre-War Trade Practices Act, 1919 (9 & 10 Geo. 5, c. 42); Restoration of Pre-War Trade Practices Acts, 1942 and 1950 (5 & 6 Geo. 6, c. 9; 14 & 15 Geo. 6, c. 9). 2 5 For the influence of measures taken during the First World War on the development of the law of conciliation and of arbitration and of works councils in France and in Germany, see Durand et Jaussaud, Traité de Droit du Travail, Vol. I, pp. 109, 456; Durand, ibid., Vol. Ill, p. 922; Hueck-Nipperdey, Lehrbuch des Arbeitsrechts, Vol. II, pp. 371, 465. 218

Labour Law already there before that year.26 If, in 1914, individualism and laissez faire in the traditional sense were still a living legal ideology in the world of business, they were certainly rapidly ceasing to be so in the world of industrial relations. The free play of competition, of the laws of supply and demand, was, in the commodity markets, acceptable to a large segment of public opinion, but the social conscience of the nation had long ago been powerfully aroused against a corresponding policy for labour. State intervention and the impact of collective forces on individual relationships might still, at least nominally, be rejected in business,27 but they had to be accepted in the relations between labour and management. This, I submit, is the background to the Introduction of Dicey's second edition, the theme of which is the victory of what Dicey called " collectivism " or " socialism." Dicey lived until 1922 but this Introduction was his political testament. It was the political testament of a dying generation, a lament for laissez faire. The catalogue of legislation which Dicey stigmatised as " collectivist" or " socialist" is not by chance, to a large extent, taken from labour law. Let us have a look at his list of gravamina, to see what precisely he meant by " socialism" or " collectivism." The list includes the Old Age Pensions Act of 1908,28 by which non-contributory old age pensions were first introduced—contributory pensions did not come until after Dicey's death29—and, as you may have expected, Lloyd George's National Insurance Act of 1911,30 that is to say, the first beginnings of health and—viewed with special misgivings by Dicey—of unemployment insurance. But the list also covers the fixing of a maximum shift for coal miners underground by the Coal Mines Regulation Act of 1908,31 and Winston Churchill's Trade Boards Act of 1909,32 the root of our minimum wage law. Much more surprising, in the same context 26

S. and B. Webb, History of Trade Unionism, 1926 ed., pp. 634 et seq. That " collective forces" in the form of trade associations with restrictive practices were even then accepted by the business world is a commonplace: see the Report of the Committee on Trusts, 1919, Cmd. 9236, (Quoted Wilberforce, The Law of Restrictive Trade Practices and Monopolies, p. 174. 28 8 Edw. 7, c. 40. 29 Widows', Orphans' and Old Age Contributory Pensions Act, 1925 (15 & 16 Geo. 5, c. 70). 30 1 & 2 Geo. 5, c. 55. 31 8 Edw. 7, c. 57. 32 9 Edw. 7, c. 22.

27

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Legal Developments Dicey also mentions the Trade Disputes Act of 190 6 33 and the Trade Union Act of 1913,34 although both these statutes do not increase but greatly reduce the possibilities of State intervention. How can we explain the uniform classification by as acute a thinker and lawyer as Dicey of all these variegated items under the heading of "socialist" or "collectivist"? Was the explanation simply that Dicey was—as no doubt he was—politically out of sympathy with the Liberal Governments of the day, and that, to give the dog a bad name, he called their doings " socialist" however much they may have been treading in the legislative footsteps of Bismarck, 38 much as twenty years later in a similar situation American Conservatives sometimes called Roosevelt's New Deal " socialism " ? Such an explanation would be far too simple. The true explanation lies, I think, in Dicey's analysis of public opinion in relation to labour legislation and in what to our eyes must appear as the naivete of this analysis. " Collectivism " (and that word was for Dicey synonymous with " socialism " ) denoted not only State intervention, but also what he called " Preference for Collective Action." 36 All legislation designed to strengthen trade unions was " collectivist" in this sense, and, even if consisting in the withdrawal of State intervention, contrary to his conception of " individualism." " Individualism " and " collectivism " were clear opposites. State intervention by legislation such as factory Acts or minimum wage Acts, public health Acts or statutes promoting school meals for children were " collectivist," but so was the removal of trade union liability in tort. The greater the power of the unions, the greater, under a democratic franchise, the pressure for State intervention. In the light of nineteenth-century experience, Dicey was persuaded that legislation strengthening the unions and legislation regulating the employment relationship were politically prompted by kindred motives and likely to lead to similar political and social results. W e cannot ignore the factual basis, the richness of the evidence on which this judgment was founded. The evidence can be seen 33 6 Edw. 7, c. 47. " 2 & 3 Geo. 5, c. 30. 3 5 Bismarck's social insurance legislation of the 1880s, which in some respects was the model of the British legislation, was in turn influenced by the voluntary practice of the English trade unions. 3« In Lecture VIII, p. 266.

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Labour Law in the description by Sidney and Beatrice Webb 3 T of the methods used for the establishment of standards by the trade unions in the nineteenth century, the familiar and classical methods of mutual insurance, of collective bargaining, and of legal enactment. The Webbs showed the eclecticism or empiricism of the unions in the choice of these methods. In the chapter of Industrial Democracy 38 which bears the heading " The Method of Legal Enactment " we find a demonstration how, in the nineteenth century, the inclination or disinclination of the unions to seek the aid of legislation varied with their power as what today we should call political pressure groups. Thus, the " enfranchisement of the town artisan in 1867 and that of the county operative and the miner in 1885 " 3 9 led almost immediately to a greatly increased demand on the part of the unions for legislation, and anyone familiar with the course of British labour legislation in the nineteenth century knows the significant results of this aspect of trade union policy in the seventies and eighties.40 We can understand why to Dicey growth of union power and growth of State intervention must have seemed almost identical. Nevertheless, whilst as a diagnosis of nineteenth-century legislation Dicey's analysis may have had a good deal of validity, as a prognosis of twentieth-century developments it was wrong. During our century, and especially in the course of and after the First World War and even more so during and since the Second World War, the political pressure power of the unions grew beyond anything to be found in the descriptive analysis of the Webbs. Yet, if one studies the legislative developments of our time, one does not come to the conclusion that the nineteenth-century tendencies observed by the Webbs were continued after the First World War. On the contrary: the more trade union power grew, the clearer did it become that—to use the Webbs' terminology—the method of collective bargaining outweighed the reliance on legal enactment. I shall have to say a great deal more about this point, but 37

Industrial Democracy (1926 ed.), Part II, esp. Chaps. 2 and 4. 3« Part II, Chap. 4. 39 Ibid., pp. 250 et seq. 40 They include the Trade Union Act, 1871; the Conspiracy and Protection of Property Act, 1875; the Employers and Workmen Act, 1875; the Merchant Shipping Act, 1876; the Factory and Workshop Act, 1878; the Employers' Liability Act, 1880; the Truck Amendment Act, 1887; the Coal Mines Regulation Act, 1887; and many others.

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permit me here to give one simple example: No sooner was the Representation of the People Act, 1867, on the Statute-book than the unions renewed their demand for the regulation by law of the working hours of adult male workers.41 We may surmise that, if at any time when the political constellation was favourable to them, the trade unions had resuscitated this demand in our century, they would have been much more likely to be successful than they were ninety years ago. Nevertheless, this country has never even ratified the ILO Washington Convention of 1919 on the 48-hour week.42 To this day the working hours of adult men are regulated by law only in a number of exceptional cases. Perhaps the most important of these is the regulation of the shift hours of coal miners underground by the amended Coal Mines Regulation Act, 1908,43 which (to use Dicey's words 44 ) "interfered . . . with the right of a workman of full age to labour for any number of hours agreed upon between him and his employer." It might have surprised Dicey that, with all the growth of union power after the First and the Second World Wars, the only major example45 of legislation of this kind to have been enacted since 1914 is road traffic legislation46 which has restricted the working hours of certain categories of drivers in order to protect the public against the obvious dangers resulting from long hours worked by those in charge of buses, lorries, etc. Generally speaking, the unions were content to rely on collective bargaining. From the point of view of social justice it is not always an unmixed blessing that the trade unions rely so much more on their industrial than on their political strength for the purpose of creating and enforcing standards of social protection. Sometimes it may mean that in sectors of the economy where trade union organisation is weak social standards lag behind those enforced in other countries in which more emphasis lies on legislation and less on collective bargaining. Does 41

Webb, supra. Hours of Work (Industry) Convention, 1919; International Labour Code, 1951, Arts. 235 et seq. 43 Note 31, supra. 44 p. li. 45 There are a number of minor cases, such as, e.g., the Baking Industry (Hours of Work) Act, 1954 (2 & 3 Eliz. 2, c. 57), replacing an older statute of 1938, and also Regulations made under s. 60 of the Factories Act, 1937, and similar provisions in earlier Factories Acts, for particular industries, e.g., the potteries. 4 « Road Traffic Act, 1930, s. 19, as amended by Road and Rail Traffic Act, 1933, s. 31.

42

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Labour Law not perhaps the fate of the recommendations in the Gowers Report 4 7 on the health, safety and welfare of office workers provide a lesson? The Report was published in 1949, and had been preceded by no less than eleven Office Regulation Bills, introduced by private members between 1923 and 1936,48 but so far these recommendations have not been implemented. 49 Can one doubt that, if the unions relied on legislation, that is on political pressure power in our time as, according to the Webbs, they did in the nineteenth century and as, according to Dicey, they could be expected to do in the twentieth, the Gowers Recommendations would, shortly after 1949, have become law? And, if I may for a moment indulge in political speculation, is it not true that the potential beneficiaries of such legislation belong to the " new middle class," the black-coated or white-collared workers, who are said to supply a not inconsiderable proportion of the "floating vote"? Would you not, on the basis of Dicey's analysis of the impact of public opinion on labour law, have expected politicians to strain every nerve to enact such politically important legislation? And does not the fact that it was not passed provide further proof that the relation between law and opinion in these matters is quite different from what Dicey thought it would be? That the pressure of opinion on law-making is exercised through organised pressure groups, and that the unions as pressure groups are far less interested in legislation than they were even half a century ago? What Dicey did not see, then, and what he could have hardly seen in his day, was that the continued and growing success of British trade unionism would not involve a commensurate increase in the intervention of legislative action in labour relations. On the contrary: the spectacular rise of the trade unions since the First World War ensured in many areas the defeat of the principle of State intervention. Dicey's antithesis of laissez jaire and collectivism was too simple. H e took too little account of the regulatory function of collective forces in society, and in a sense he ignored the rapidly developing pluralistic character of the British Constitution. This, I think, explains his failure to see that in labour *1 Cmd. 7664. For a survey see Keast, Industrial Law Review, Vol. 4, pp. 10 et seq. 19 See, however, for implementation of the recommendations referring to agricultural workers, the Agriculture (Safety, Health and Welfare) Provisions Act, 1956 (4 & 5 Eliz. 2, c. 49).

48

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relations and possibly elsewhere laissez faire may have two very different meanings. It may, of course, mean the free play of the laws of a market between individuals assumed to be equal, and the use of the law to prevent the interference of collective entities such as trade unions with the operation of supply and demand. But it may also mean allowing free play to the collective forces of society, and to limit the intervention of the law to those marginal areas in which the disparity of these forces, that is, in our case, the forces of organised labour and of organised management, is so great as to prevent the successful operation of what is so very characteristically called " negotiating machinery." It so happens that in this country (but not by any means in other capitalist countries as well 50 ) this principle of, if you like, " collective laissez faire," came to be a preponderant characteristic of labour law in the course of the first half of our century. The British labour movement, and especially the trade union movement, has, to an extent certainly not contemplated by Dicey, been heir not only to a Socialist tradition, but decisively also to the Liberalism of the nineteenth century. Seen from the lawyer's point of view, its main characteristic today is its aversion to legislative intervention, its disinclination to rely on legal sanctions, its almost passionate belief in the autonomy of industrial forces. What is more, this principle of " collective laissez faire" has come to dominate not only the attitude of the unions but also that of the employers and their associations and of the civil service,51 and, as I hope to show presently, in our own time that of the courts. The increase in the influence of legislation on labour since 1914 bore no relation to that of the political influence of those collective forces which, far more than the law and the State, came to be the fundamental factors in organising the labour-management relationship. In the telescope of academic analysis one can discern and distinguish—again using Dicey's term—three " currents of legislative opinion," the interaction of which accounts for much in the 50 51

See, e.g., for the relation between collective bargaining and legislation in France, Durand, Traité de Droit du Travail, Vol. Ill, pp. 32, 461. The priority of autonomous over statutory settlement of disputes is one of the principles which permeate the relevant legislation and therefore the practice of the Ministry of Labour: see, e.g., Industrial Courts Act, 1919, s. 2 (4); Industrial Disputes Order, 1951, Arts. 5 and 6.

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Labour Law development of labour law in our century. First, there is this policy of " collective laissez jaire " I have mentioned, the retreat of the law from industrial relations and of industrial relations from the law. Secondly, there is the tendency to use legislation for the expansion of patterns of protection established in the nineteenth century and during the Edwardian period, and, especially, the increasing use made of legislation as a substitute for collective bargaining, as a stop-gap where dis-equilibrium of social forces makes its intervention inevitable. In so far, and in so far only, the tendency described by Dicey as " collectivist" continues during our period. Thirdly, there is, to an extent perhaps not anticipated by Dicey, the continued and permanent influence of individualism: the insistence on the contract of employment—however formal—as the legal basis of the labour management relation and in peacetime the firm rejection of anything that even remotely resembles compulsory labour. Indeed, we may say of our century that its conception of the need for protecting the individual is more enlightened and more differentiating than that of our grandfathers. Even among lawyers there is a belated recognition that, to paraphrase Lassalle, not only the Houses of Parliament and the Ministry of Labour, but also the General Council of the Trades Union Congress, the British Employers' Confederation, Imperial Chemical Industries, Ltd., the Prudential Assurance Company and the Transport and General Workers Union are a part of the British Constitution, and that it is necessary to protect the individual's freedom of action not only against the so-called " State " but also against other social forces, whether of business or trade unionism, whose direct impact on the reality of law was not fully within Dicey's range of vision. I should like to give a few examples to illustrate and to justify these statements. Before I do so, however, may I—at the risk of saying the obvious—make three further observations on general tendencies in legal development which seem to me to be of special importance for my subject. The first is about what you might call the " centri-petal" tendency of public opinion, or, to put it differently, the simple fact that a great number of things such as the existence and recognition of trade unions, and the principle of social insurance, which were still highly controversial fifty years 225

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ago, have, generally speaking, become parts of the accepted pattern of life. The reduction of the area of the " disputed " and the constant enlargement of the area of the " accepted " principles of social organisation seem to me to be characteristic for the development of public opinion in this country. The second general observation I was anxious to make also transcends my subject but is of particular significance for labour relations: it is the growth of " pluralism " : that is, of the participation in legislation,52 in administration,53 even in the judicial process,54 above all in policy making,55 of representatives of the interests concerned. The line between " State " and " society " has been blurred very deliberately, or to put it differendy, the " pressure " of the pressure groups has been so organised as to work inside the legislative, administrative, judicial and policy making processes. This is of special importance in considering the relation between collective bargaining and legislative action. My third general observation is even more general, and it may sound very platitudinous to anybody who has had no opportunity of looking at the British scene from outside: It is the remarkable respect, not indeed for the lawyers, but for the law among the British people, and in particular among the working classes. The determination, even in a desperate situation, to remain within the law was cogendy demonstrated at the time of the General Strike of 1926 when the verdict of a well-known lawyer (who was also a politician), in and out of Parliament,56 and that of a Chancery judge 57 that the Strike was illegal, appear to have had a considerable effect on public opinion, although not perhaps on the 52 53

54

55

56 57

For minimum wage legislation, see below. e.g., the National Insurance Advisory Committee (which also participates in delegated legislation) and the local advisory committees under ss. 41 and 42 of the National Insurance Act, 1946, and the National Youth Employment Council and Youth Employment Committees under ss. 8 and 9 of the Employment and Training Act, 1948. There are many similar institutions. e.g., the local tribunals under Regulations made by virtue of s. 43 of the National Insurance Act, 1946, and the local appeal tribunals under s. 36 of the National Insurance (Industrial Injuries) Act, 1946. For the National Joint Advisory Council and the Joint Consultative Committee in the Ministry of Labour and National Service, see Industrial Relations Handboo\, (revised ed., 1953), pp. 13-14. Three Speeches on the General Stride, by the Right Hon. Sir John Simon, M.P., (1926). National Sailors' and Firemen's Union v. Reed [1926] Ch. 536, per Astbury J. The dictum about the legality of the strike was unnecessary for the decision of the case.

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Labour Law strikers themselves.58 How many countries are there in the world in which, in a national crisis of this kind, public opinion could be influenced by the utterances of a lawyer-politician and of a judge? Is it not perhaps partly the fact that people take the law so seriously which makes them anxious to keep it at arm's length and to shrink from calling for its intervention? Where the law is less respected, where in this regard public opinion is a little more cynical, the intervention of the law in human affairs in general and in industrial relations in particular is perhaps viewed with greater equanimity and therefore accepted more willingly. I now propose to say a little about the three tendencies I have mentioned: that is about the interplay of non-intervention, of intervention and of individualism. I shall, of course, be compelled to speak not only about what happened but also about what might have but has not happened, exactly as Dicey sought in the light of public opinion not only to explain legislation, but also its absence. II. The Tendency towards

Non-intervention

First, then, as to what I called " collective laissez faire." (a) Take the vital problem of what is called trade union recognition, that is, of the willingness of employers to bargain collectively with trade unions, or to quote the United States LabourManagement Relations Act,58 the right of employees " to bargain collectively through representatives of their own choosing." It was not until three years before Dicey published the second edition of his book, not until a big strike in 1911,60 that the railway companies in this country agreed to bargain with trade unions. As late as 1893 " Sir George Findlay, the General Manager of the London and North-Western Railway," had " voiced the common opinion of the Companies when he declared t h a t ' you might as well have a Trade Union or an " Amalgamated Society " in the Army, where discipline has to be kept at a very high standard, as have it on the railways.' " 61 These facts illustrate the social background against which Dicey wrote, but it must be admitted that the railways were the last major industry to resist collective bargaining with manual 58

Symons, The General Stride, pp. 119 et seq. 5» Title I, s. 7. 60 Webb, Hist, of Trade Unionism, pp. 528 et seq. «1 Ibid., p. 525.

Ill

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Developments

workers' unions. Today, as far as manual workers are concerned, trade union recognition does not, in general, appear to offer a serious problem, although here, as throughout all the observations I have to make, I should be very rash if I drew exaggerated conclusions from the experience of almost twenty years of a high level of employment. Let us also remember that only a few years ago public opinion was much concerned with a case of a refusal by a major firm in the printing industry to have any dealings with trade unions,'2 and that hardly an Annual Congress of the T.U.C. passes at which certain unions of clerical workers do not raise complaints about the resistance which some groups of employers offer to their recognition.63 You may therefore say that since Dicey wrote, the problem has lost most of its acerbity and that its magnitude has been reduced, but that it is still there is undeniable. In the United States, where no doubt it is much more acute, this problem has been dealt with by legislation. The right to bargain collectively has been guaranteed to the employees since the Wagner Act of 1935,64 and to the employers since the Taft-Hartley Act of 1947." In this country the only employers to have been placed under a statutory obligation to enter into " or to seek 67 negotiations with trade unions are those who are least likely to violate it, namely, the public corporations administering nationalised industries, and even this obligation has been couched in terms which, in the unlikely event of its breach, would in my opinion make it practically impossible for a court to enforce it.88 No legislation has been passed on the American model, and, what is more, no such legislation has to the best of my knowledge ever been demanded by the trade unions, although, in the light of the political history of the last twenty years, we may surmise that if the unions had wanted such legislation they would have got it. This, I submit, 62

See Report of a Court of Inquiry into a Dispute between D. C. Thomson & Co., Ltd., and certain workpeople, members of the National Society of Operative Printers and Assistants, Cmd. 8607 (1952). 63 For one example among many see, e.g., the Annual Report of the T.U.C. (1949), p. 303. See G. D. H. Cole, An Introduction to Trade Unionism (1953), p. 271. 64 s. 8 (5). " Title I, s. 8 (b) (3). •• Coal Industry Nationalisation Act, 1946, s. 46. 87 e.g., Transport Act, 1947, s. 95. 68 The discretion vested in the public corporations in deciding which unions are representative or appropriate is so wide that mandamus can hardly lie for the enforcement of the obligation.

228

Labour Law is a phenomenon which does not fit into Dicey's scheme of things. Does not the unwillingness of the unions to invoke the help of the law at a point at which, as is well known, the American unions found it to be of the greatest assistance, demonstrate how much the aversion against State intervention in industrial relations, how much in particular union preference for industrial rather than political or legislative action, dominates the impact of public opinion on the development of labour law in our time? Without any change in the law collective bargaining has, as a social institution, moved from the contested into the accepted sphere, so much so that in 1938 Goddard L.J., as he then was, in the course of a judgment, called it " the great benefit of a trade union . . . that you can have collective bargaining between employers and employed." " Victorian judges such as Baron Alderson 70 or Sir William Erie 71 would hardly have endorsed this dictum. (b) Let me say a word about the related though different topic of freedom of organisation. In the sense that the law does not interfere with its exercise, the individual's freedom to join or to form organisations has, on principle, not been in question since 1824, although the Trade Disputes and Trade Unions Act, 1927, which was repealed in 1946, did restrict it up to a point for established civil servants.72 The only category of employees to be deprived of this freedom are the members of the police force, under a statute of 191973 which, on the matter here under discussion, was left untouched by the various Labour Governments.74 I am, however, mainly concerned with the protection of this freedom against social forces rather than against the State and the law. It is constantly in danger of being attacked either by employers or by the unions themselves. It may be encroached upon either by what the Americans call the " yellow-dog contract" and what in this country used to be known as " the document," that is, an undertaking demanded by the employer from the worker to leave the 89

70 71

72 73 74

Evans v. National Union of Printing, Bookbinding and Paper Workers [1938 ] 4 All E.R. 51, at p. 54. See Hilton v. Eckersley (1855) 6 E. & B. 47, at pp. 74 et seq. See his Memorandum on Trade Unions included in the Final Report of the Royal Commission of 1869. And see Stephen, History of the Criminal Law of England, Vol. 3, p. 218. Trade Disputes and Trade Unions Act, 1927 (17 & 18 Geo. 5, c. 22), s. 5. Police Act, 1919 (9 & 10 Geo. 5, c. 46), s. 2. The Act was amended on several occasions, but not on the point here in issue.

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Legal Developments union to which he belongs and not to join a union while in his employment, or else it may be infringed by the " closed shop." Now you may say: the " d o c u m e n t " is vieux jeu, it exists only in the pages of books on nineteenth-century social and economic history. True enough, such attempts to make workers sign away their freedom of organisation are rare, at any rate in the case of manual workers and at times of a high level of employment, but the printing firm to which I have referred indulged in this practice,75 and as counsel appearing for the union before the court of inquiry investigating this case 76 rightly confirmed, there was nothing illegal in it. More than that: the unions have not asked for legislation to eliminate what the Americans call " unfair labour practices." The United Kingdom has ratified 77 the I L O Right to Organise and Collective Bargaining Convention of 1949,78 under which workers " shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment" " and such protection shall more particularly apply in respect of acts calculated to make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership." This, however, has not been translated into law, nor have we heard of trade union pressure for a statute to implement the Convention. Is this not further proof for what I have said about the negative attitude of public opinion towards legislation on industrial relations? However, although an employer may discriminate against trade union members, he cannot obtain any government contracts if he does. Under the Fair Wages Resolution of the House of Commons of 1946,79 an employer cannot obtain any government contracts unless he recognises the freedom of his workpeople to be members of trade unions. This Resolution had been drafted by a Committee 80 on which the British Employers' Confederation, the Trades Union Congress and the Government were represented, and they passed the draft unanimously. When the Resolution was debated in the Commons, 81 not a single voice was raised against "

Cmd. 8607, esp. Nos. 11, 14, 15, 16. Ibid., No. 116, see also No. 150. " On June 30, 1950. See International Labour Code (1951), Vol. 1, p. 690, note 16. 78 Ibid., Arts. 871 et seq. ™ 427 Hansard, 628. 8 0 Cmd. 6399 (1942). 8 1 427 Hansard. 76

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Labour Law the Resolution in general or against this freedom of association clause in particular. The unanimity with which the House accepted the principle that respect for the workers' freedom of association should be a condition for the privilege of obtaining government contracts, together with the lack of pressure for the implementing of the ILO Convention, shows the change in the climate of opinion since Dicey's day. (c) The debate in the House of Commons to which I have referred was entirely on a Conservative amendment which would have prevented government contractors from participating in certain kinds of closed-shop agreements. Here we are in the midst of the controversies of our own day. Public opinion is, I think, divided on the question whether unions should be allowed, through agreements with employers, in effect to deprive the individual of his freedom to remain outside a union or outside a particular union. The Trade Disputes and Trade Unions Act, 1927, made it unlawful for local and other public authorities to participate in closed-shop agreements or to require their contractors to do so,82 but this Act, as I have already mentioned, was repealed in 1946, and local authorities may now insist not only on union membership of their employees but on membership in a particular union. How complex the relation between law and public opinion is in these matters, we were all able to see in those cases in which a number of local authorities required employees such as, e.g., school teachers to be members of unions, and the relevant unions themselves objected to this interference with the freedom of the individual.83 Union opinion itself is divided—not of course on the desirability of 100 per cent, trade union membership, but on the merits of closed-shop agreements with employers.84 There are, on the other hand, I believe, not a few employers who welcome closed-shop agreements because they eliminate friction and jurisdictional disputes.85 Against this background of divided opinion we may perhaps understand 82

83

84

85

s. 6 . T h i s statute also m a d e it unlawful for local authorities to restrict their workers' freedom of organisation or to require their contractors to d o so. Dispute in 1950-52 between the D u r h a m County Council and the National Union of Teachers and other organisations. Flanders and C l e g g (ed.), The System of Industrial Relations in Great Britain (1954), p . 173. Flanders and C l e g g (ed.), The System of Industrial Relations in Great Britain (1954), C h a p . Ill (by J . D . M . Bell), esp. p p . 170 et seq. See Richardson, An Introduction to the Study of Industrial Relations (1954), p p . 185 et seq., esp. p . 187.

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the abstention of English law in all matters of " union security." More than thirty years ago it was laid down by a Chancery judge in an important and often quoted case 86 that a closed-shop agreement as such is not an actionable conspiracy, and a worker who loses his job and cannot find another one, as a result of not being or no longer being a union member, cannot claim redress by way of injunction or damages against those operating the closed-shop agreement. The social sanctions against a break-away from a union may be formidable, and the union may, through non-admission or expulsion, bar or exclude the individual from the trade. The courts, conscious perhaps of the corresponding powers of the professional organisations of the lawyers themselves,87 abstain from intervention. In his celebrated speech in the Crofter case of 1941,88 Lord Wright pointed out (and there was nothing in the speeches of the other Law Lords to contradict this) that 100 per cent, membership was one of those " legitimate purposes " which justified an agreement though it might inflict injury on others, and—this is important—that it was " legitimate" although unions and employers combined in achieving it. We can see the difference from the situation in the United States, where at this point the Anti-Trust laws begin to operate.89 (d) It is remarkable how, despite all the many shifts in the industrial scene since 1914, the elaborate codes of procedure and of substantive rights which govern industrial relations have grown steadily, and even more remarkable how persistent has been the determination of all concerned to keep these codes outside the law. In 1911 Sir Winston Churchill said in the House of Commons: " I t is not good for trade unions that they should be brought in contact with the courts, and it is not good for the courts." 90 We might, to summarise the attitude of a very steady public opinion in this matter, substitute " industrial relations " for " trade unions," and thus partly account for the dominating tendency to keep the legislature and the courts out of the mainstream of labour relations, and to found these relations on a corpus of extra-legal, purely social norms and sanctions. 86

Reynolds v. Shipping Federation [1924] 1 Ch. 28. See per Harman J. in Huntley v. Thornton [1957] 1 W.L.R. 321, at p. 328. Crofter Hand Woven Harris Tweed Co. v. Veitch [1942] A.C. 435. 0» Allen Bradley Co. v. Local Union No. 3, 1BEW, 325 U.S. 797 (1945). 90 May 30, 1911, quoted from Milne-Bailey, Trade Union Documents (1929), p. 380. 87 88

232

Labour Law Suggestions to give legally binding effect to collective agreements, either between the parties to the agreement (that is, normally, the organisations on both sides) or as between the individual worker and employer, have not been missing. In 1894, a number of members of the Royal Commission on Labour (including Sir Frederick Pollock) showed themselves in the Final Report,91 favourably disposed towards transforming collective agreements into legally binding contracts for the breach of which the unions would be liable in damages.92 They concluded, however, that public opinion was not yet ripe for such a change, but thought it " t o be desirable to indicate what may, as it appears to us, ultimately prove to be the most natural and reasonable solution of some at least of the difficulties which have been brought to our notice," difficulties, of course, connected with industrial war and peace. We may be permitted to wonder whether the diagnosis that public opinion was not ripe for such a change was right and whether on the contrary, even in 1894, it was not already too ripe for it, but we notice that, in our century, there has been, not perhaps a stream, but a trickle of proposals to put legal " teeth" into collective agreements. In 1911 the Board of Trade set up an "Industrial Council," 93 consisting of workers' and employers' representatives under the chairmanship of an eminent civil servant, "for the purpose of considering and of inquiring into matters referred to them affecting trade disputes." The Council, whilst refusing to accept suggestions similar to those which had commended themselves to some members of the Royal Commission on Labour in the nineties, proposed that the Board of Trade should have power to extend agreements concluded by representative organisations to outsiders, i.e., to make them a " common rule," and, apparendy, to make them thus legally binding. In 191294 Ramsay MacDonald proposed in the House of Commons that this should be done for the agreements in the London Docks (and it is interesting to reflect that under the present law, enacted in 194 6 95 and 1947," the Port Transport Industry is one of the few industries in which collective 91 92 93 94 95 96

C.7421/1894. See Sharp, Industrial Conciliation and Arbitration in Great Britain (1950), pp. 290 et seq. See Amulree, Industrial Arbitration in Great Britain (1929), p. 107. See for this, Amulree, pp. 114 et seq.; Sharp, pp. 298 et seq., 406. Sharp, p. 406. Dock Workers (Regulation of Employment) Act, 1946 (9 & 10 Geo. 6, c. 22). Dock Workers (Regulation of Employment) Order, 1947 (S.R. Si O., No. 1189).

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Legal Developments agreements have legal effect). In the same year, 1912, a statute was actually passed 97 by which legally binding effect was given to certain wage agreements in the coal mining industry, a statute which was of considerable importance for a number of years, but then, in the twenties, completely overtaken by the development of voluntary bargaining in the coal mining industry, 98 and finally, a few years ago, repealed as obsolete by a Statute Law Revision Act 9 9 without a ripple on the surface of public opinion. During the First World War, as during the Second, public opinion was prepared to accept, and indeed inclined to demand, a far larger measure of legal regulation of labour relations than would have been tolerable in peace. W e find that the Munitions of War Acts, 1 passed during the First World War, especially the Act of 1917,2 and also the temporary statute,3 designed to serve as a transition from the war to the peace economy in industrial relations, provided not only for compulsory arbitration but also for the legal enforcement of collective agreements. Bills to give legal effect to agreements made by Joint Industrial Councils were repeatedly introduced between the wars. 4 The remarkable thing is not that such suggestions should have been made in peacetime and such measures been taken in wartime, but that they were not much more numerous, that so little came of the suggestions, and that the wartime measures to which I have referred were allowed to disappear almost as soon as the war was over. It is true that the obligation imposed upon employers in 19405 to observe recognised terms and conditions, that is, terms and conditions established between organisations which are substantially representative, was continued until 1951, but, as the Court of Appeal affirmed in 1944,6 this obligation was clearly not directly enforceable through civil sanctions in the courts, but only through proceedings before what was then the National Arbitration «

Coal Mines (Minimum Wage) Act, 1912 (2 Geo. 5, c. 2). Sharp, p. 380; Amulree, pp. 169 et seq. 9 9 Statute Law Revision Act, 1950 (14 Geo. 6, c. 6). 1 For details, Amulree, pp. 126 et seq. ^ 7 fit 8 Geo. 5, c. 45. 3 Wages (Temporary Regulation) Act, 1918 (8 & 9 Geo. 5, c. 61). 4 See for details, Sharp, pp. 333-334. s Conditions of Employment and National Arbitration Order, 1940 (S.R. & O., 1305), Art. 5. « Hulland v. Saunders [1945] K.B. 78. 98

234

Labour Law Tribunal. In 19517 this " obligation " was, characteristically, transformed into an " issue " whether the employer should observe the recognised terms and conditions. This issue is determined by the Industrial Disputes Tribunal through an award,8 very much like a dispute on wages and other conditions still to be laid down, and, as the Court of Appeal very clearly recognised,9 in practice frequently indistinguishable from a dispute. Thus, in effect, so far from imposing a rigid obligation on an employer to observe the collective agreement, the law converts the issue whether he should observe it into an opportunity for a creative award made by a Tribunal which includes representatives of both sides of industry and which, though presided over by a lawyer experienced in industrial arbitration, frequently contains a majority of nonlawyers. That these provisions never prevented an individual employer and employee from validly agreeing upon, e.g., a wage lower than that laid down in the relevant collective agreement, would on general legal principles have been clear, even if the courts had had no opportunity of affirming it.10 This is a unique feature of British industrial relations. In many of the more important Continental countries 11 legislation has been passed since 1912, according to which the terms of collective agreements cannot be contracted out to the detriment of a worker employed by a firm which is party to the agreement or a member of an organisation which is a party. Frequently an authority such as the Minister of Labour can extend this effect to non-federated employers and make the agreement a common rule of the industry.12 If we look across the Channel we see how the growth of French trade unionism was accentuated by the passing of certain statutes 13 giving legal effect to collective agreements, statutes passed under the impact of political events, such as, e.g., the advent of Industrial Disputes Order, 1951 (S.I. 1376), Art. 2. Though the Order has now been revoked (S.I. 1958, No. 1796), negotiations are pending to find a substitute for the " i s s u e " procedure: 595 Hansard 1177. s Art. 9. 9 Regina v. Industrial Disputes Tribunal, ex p. Technaloy, Ltd. [1954] 2 Q . B . 46; Regina v. Industrial Disputes Tribunal, ex p. Portland U. D. C. [1955] 1 W . L . R . 949. 10 Hulland v. Saunders, supra-, Simpson v. Kodak, Ltd. [1948] 2 K . B . 184. 1 1 Switzerland 1912, Germany 1918, France 1919, Netherlands 1927, etc. 1 2 See, e.g., French law of February 11, 1950; West German law of April 9, 1949, etc. 1 3 See Durand et Jaussaud, Traité de Droit du Travail, Vol. I, Part I, Chap. II, esp. pp. 107 et seq. 7

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the Front Populaire Government under Leon Blum in 1936.14 Very similar observations could be made about Germany.15 Yet, although this question of legal sanctions for collective agreements had certainly not escaped the attention of the unions in this country, and indeed been debated in their circles, the formation of the Labour Government in 1945 had no comparable consequences. The codes of labour conditions have remained customs outside the law despite all the shifts in public opinion which from time to time produced governments of very different political colour. It is perhaps significant that the only peacetime measure18 clearly comparable to the Continental legislation I have mentioned was passed for one particular industry, the cotton-weaving industry, upon the joint request 17 of the organisations on both sides at the time when the Depression was at its worst, and with the aim of strengthening both the unions and the employers' organisations against outsiders undermining the wage standards. The Minister had the power to make an order by which the wage agreements became legally binding, but only upon a joint application of representative organisations on both sides, and he had to revoke it if the organisations on either side " jumped off " and demanded the revocation. This Act expired at the end of 1957,18 after having been dormant for many years, but it remains interesting as a pattern of legislation, and as a demonstration of the role assigned by public opinion to the law in labour-management relations. It is primarily not to come to the aid of labour against management or of management against labour, but, where necessary to help the combined forces of organised labour and management, to maintain the collective customary extra-legal code against outsiders unwilling to adopt it as their norm of industrial conduct. (e) I have mentioned trade union recognition, freedom of association, union security and the effect of collective agreements. Everywhere we observed the tendency of the law not to intervene, and this same tendency is manifest in its attitude towards the 14 15 18 17 18

Law of June 24, 1936, now replaced by the law of 1950, mentioned in note 7. Especially with reference to the consequences of the Revolution of 1918. Sinzheimer, Grundzuege des Arbeitsrechts, p. 252. Cotton Manufacturing Industry (Temporary Provisions) Act, 1934 (24 & 25 Geo. 5, c. 30). See Sharp, pp. 173 et seq., 406 et seq.-, Flanders, in Flanders and Clegg, p. 281. By not Being included in the Schedule to the Expiring Laws Continuance Act, 1957 (6 Eliz. 2, c. 2).

236

Labour Law representation of the workers at workshop, pit, building site, or office level. W e must, of course, distinguish between the consultative function of production committees and the like, and the representative function of shop stewards. It is hard to say how far public opinion is behind " joint consultation," but it is clear that where it exists it does not rest on the law, that—apart from references to it in the nationalisation statutes 19—the law is silent and that public opinion does not want the law to speak. The Whitley Committee seems to have envisaged that at a later stage some sort of legal sanction might have attached to the action of the joint industrial councils which they proposed,20 but, as we know, that part of the Whitley scheme which referred to local and regional consultation was very far from being a universal success, and nothing was heard of any movement to give effect to this tentative suggestion. Although there seems to be among a minority of the unions a tendency towards a policy of " codetermination " in the German sense,21 the main current of union opinion, and, one may surmise, of public opinion in general, is averse to this recrudescence of syndicalism. It is perhaps more noteworthy that the less far-reaching legal enactments in France 2 2 and in Germany 2 3 which seek to give legal guarantees for joint consultation (as distinguished from co-determination) have had no response in this country. One can say that this attitude shows an instinctive insight into the limitations of the law. Much the same can be said about the representation of workers' interests at workshop level through shop stewards. Parliament, without perhaps intending to do so, did in fact establish a statutory pattern of representation through the checkweighman system in the coal mining industry 24 which was fully established before Dicey wrote, but which, in 1919, was extended to a great many extractive and other industries outside coal-mining.25 Here, then, we find the 19 20 21

22 23 24 25

See, e.g., the provisions mentioned in notes 66 and 67, supra. First Report, Cd. 8606 of 1917. See Sharp, p. 327. G. D. H. Cole, An Introduction to Trade Unionism (1953), pp. 120, 229. The Union of Post Office Workers appears to be the only major union to advocate a policy of co-determination. The German law of May 21, 1951 (Federal Republic) applies only in the mining and iron and steel producing industries. Decree of February 22, 1945, and Law of April 16, 1946. Law of October 11, 1952 (Federal Republic). Apart from some amending statutes this still rests on the unrepealed ss. 13 and 14 of the Coal Mines Regulation Act, 1887 (50 & 51 Vict. c. 58). Checkweighing in Various Industries Act, 1919 (9 & 10 Geo. 5, c. 51).

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legally protected spokesmen of the workers on the spot, and the Webbs have pointed out 2 6 to what extent this legal protection has been of assistance to the development of the miners' unions, although, we may add, the courts did not show themselves too favourably disposed towards the exercise of union functions by checkweighmen." I do not feel, however, that there is any appreciable pressure for an extension of this legislative pattern, that is, for a statute compelling employers to permit the election or appointment of shop stewards or for giving shop stewards statutory protection against victimisation. Considering the vigour of the Continental movement for statutory works councils, it is remarkable how sceptical public opinion has remained in this country towards the possibility of giving legal sanction to the requirement of cooperation between management and union representatives in matters such as disciplinary measures or dismissals by reason of redundancy. (f) The policy of abstention on the part of the law and the reluctance to apply legal sanctions are especially noticeable in connection with the statutory machinery for the prevention and settlement of disputes. The arrangements for conciliation, for arbitration, and for investigation, provided for in the Conciliation Act, 1896 (the " mouse " which—according to Amulree 28 —the " mountain" of the Royal Commission of 1894 had produced), were from the beginning intended to be subsidiary to the autonomous effort of industry itself.29 This was made even more explicit when, as a result of the Fourth Whitley Report,30 a permanent statutory organ of voluntary arbitration was created in 191931 in the form of the Industrial Court. The Minister of Labour is not supposed, even with the consent of the parties, to refer a dispute to the Industrial Court as long as there remains a chance of settling it in the industry itself.32 A similar principle was written into the wartime Order of 1940,33 which set up a system 26

History of Trade Unionism, pp. 304 et seq. See, e.g., Sykes v. Barraclough [1904 ] 2 K.B. 675, but note the judgment of Kennedy L.J. See also Hampton v. West Cannoc\ Collieries [1932] 2 K.B. 293. 28 P- 1 0 7 29 See s. 2 (1) (c), and for the application of the Act in its early days Askwith, Industrial Problems and Disputes, esp. Chap. 8. 30 Cd. 9099 (1918). See Sharp, pp. 347 et seq. 31 Industrial Courts Act, 1919 (9 & 10 Geo. 5, c. 69). 32 s. 2 (4). 33 S.R. & O. 1305 of 1940, Art. 2 (2).

27

238

Labour Law o£ compulsory arbitration, and into the Industrial Disputes Order, which took its place in 1951,34 and it proved itself to be even more important in connection with compulsory than with voluntary arbitration. Either a union or an employer's organisation or an employer could report a dispute to the Industrial Relations Department of the Ministry of Labour, and the Department referred the dispute to the Industrial Disputes Tribunal. Before it did so, however, its first duty 3 5 was to see whether it could not be settled inside the industry, and the fact is that, in fulfilling this duty, the Department was able to canalise a very large proportion of the disputes reported for compulsory arbitration into the channels of autonomous settlement, and, especially during the earlier years of compulsory arbitration, to use this institution as a stimulus for collective bargaining. 36 That in this country compulsory arbitration did not have the effect of paralysing collective bargaining—experience abroad 37 shows that this is not a matter of course—is no doubt largely to be ascribed to the firm determination of unions and employers to keep it alive, and to the way the law was administered by the Ministry of Labour. I suggest, however, that perhaps the status of the arbitration tribunals also had a great deal to do with this. Much has been said and is still being said about the extent to which it is legitimate for governments to draw the attention of arbitration tribunals and similar bodies to governmental wage policies, and for these tribunals to try to give effect to general economic considerations. The fact is that, so far, these bodies have remained independent. No government can give them directives, general or special, and they are able to act in a judicial spirit. From the legal point of view they are certainly not instruments of government policies. I wonder whether public opinion, represented largely by the organisations on both sides, would have tolerated compulsory arbitration if this had been otherwise. The system of compulsory arbitration was, of course, based on a statutory instrument, an Order of the Minister of Labour and National Service. But this was only its legal appearance. In fact it rested on an agreement 3 4 S.I. 1376 of 1951, Arts. 5 and 6—now revoked, as Art. 5. 3 6 For some details see Flanders and Clegg, Chap. 2 (by Kahn-Freund), esp. p. 96. 3 7 The compulsory arbitration law of the Weimar Republic had a deadly effect on collective bargaining.

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between the Trades Union Congress, the British Employers' Confederation, the nationalised industries and the Government38—a textbook example of pluralistic legislation. Would such an agreement have been possible if the independence of the arbitrators had not ensured that the system cannot be a road towards a direct intervention of the government in industrial relations? Would the two sides of industry have accepted compulsory arbitration if it might have been used as a means for substituting governmental policies for the present dispensation of collective laissez jaire? (g) It is in connection with trade disputes that the retreat of the courts from the scene of industrial relations can be most clearly seen. It began in 1897.39 Around the turn of the century there were, in the courts, two conflicting tendencies in this respect. One of these, call it the " liberal" tendency if you will, was the trend of judicial opinion which corresponded to what I have called the legislative policy of non-intervention. The opposite, "conservative," judicial policy, represented by Lord Halsbury, was in the direction of regulative interference, of judicial enforcement of " rules of the game." You can see the two policies in action in the decisions in Allen v. Flood in 189739 and in Quinn v. Leathern in 1901.40 In the 1897 case, which was not fully understood until a few clarifying judgments had been rendered in the very different atmosphere of the 1920s,41 the House of Lords held that the law cannot be used to find a line between permissible pressure and prohibited coercion in industrial relations. Interference by an individual with another person's " freedom to use his capital or labour as he wills" is not a tort, and even the presence of " malice" on the part of a union representative inducing an employer to dismiss a worker, say, in the course of a jurisdictional dispute, does not give the worker a cause of action. In effect the House of Lords endorsed the view expressed the year before by Mr. Justice Holmes, in a famous dissenting judgment in the Supreme Court of Massachusetts,42 that in a society committed to the " free struggle for life " the courts cannot stigmatise as illegal the give and Industrial Relations Handboo\ (rev. ed., 1953), Chap. VI, esp. Nos. 13 and 15. 39 Allen v. Flood [1898] A . C . 1. 40 [1901] A . C . 495. 41 White v. Riley [1921] 1 Ch. 1; Ware & de Freville v. Motor Trade Association [1921] 3 K . B . 40; Sorrell v. Smith [1925] A . C . 700. 42 Vegelahn v. Guntner, 167 Mass. 92 (1896). 38

240

Labour Law take of industrial battles. In 1901, however, the composition of the House of Lords had changed and a regulative policy prevailed. In both cases the conduct of the trade unionists concerned could have been described as vindictive, but the 1901 decision rested on the fact that there were several defendants (and not only one as in 1897). It was held that industrial conduct which did not give rise to a cause of action against an individual might nevertheless be an actionable " conspiracy " if originating in an agreement or combination between two or more persons. The fact of concerted action in industrial relations was the ground on which the court interfered. The tort of conspiracy, developed in the course of the nineteenth century, largely in connection with trade disputes/ 3 was to some extent based on the ancient superstition of the common law that two are stronger and therefore more powerful than one.44 It has often been observed that, as a result of this decision of 1901, the courts applied to industrial relations principles which they had since 1892 45 disclaimed in matters of business competition and monopoly. In 1901 the House of Lords refused to consider the pursuit of trade union objectives as a justification for a " conspiracy," whereas in 1892, in the Mogul case, they had held that the furtherance of trade was a purpose justifying a cartel practice intended to drive outsiders out of business. By 1914, the retreat of the courts from the batdefield of business competition and monopoly was complete; the retreat from industrial relations had stopped halfway. I think it is not unfair to say that this was largely due to a generally unsympathetic attitude towards the trade unions, of which the Tafi Vale 46 and Osborne 47 cases are the most famous, but not the only illustrations48 and which can be observed as late as the early years of the 1914-18 War. 49 The attitude of the courts reflected that of the middle class. In the speech in the House of 43

For a survey, see the speech of Lord Wright in Crofter Harris Tweed Co. v. Veitch [1942] A.C. 435. See per Viscount Simon L.C. in the Crofter case, supra, at p. 443. 45 Mogul S.S. Co. v. McGregor, Goiv & Co. [1892] A.C. 25. 48 Taff Vale Ry. v. Amalgamated Society of Railway Servants [1901] A.C. 426. 47 Osborne v. Amalgamated Society of Railway Servants [1910] A.C. 87. 48 e.g., Lyons v. Wilhins [1899] 1 Ch. 255; Charnoc\ v. Court [1899 ] 2 Ch. 35; Giblan v. National Amalgamated Labourers' Union [1903 ] 2 K.B. 600; South Wales Miners' Federation v. Glamorgan Coal Co. [1905] A.C. 239; Conway v. Wade [1909] A.C. 506. 4 » Lar\in v. Long [1915] A.C. 814. 44

241 G.T.T.

16

Legal Developments Commons in 1911,50 to which I have already referred, Sir Winston Churchill said: " T h e courts hold justly a high, and I think, unequalled prominence in the respect of the world in criminal cases, and in civil cases between man and man, no doubt they deserve and command the respect and admiration of all classes of the community, but where class issues are involved, it is impossible to pretend that the courts command the same degree of general confidence." It is impossible to be dogmatic on the very subde influence which public opinion has on the courts, but one may, I think, safely say that the First World War brought about a considerable change. I have already alluded to the decision of 1924,51 in which the court applied the principle of the Mogul case to a labour situation and refused to hold that a very rigid closed-shop agreement was an actionable conspiracy. This was, I think, symptomatic. In 1941 the House of Lords, in the fundamental decision in the Crofter case,52 extended the principles of the Mogul decision of 1892 to labour relations. " The predominant object of the respondents," said Lord Simon, " . . . was to benefit their trade union members by preventing undercutting and unregulated competition, and so helping to secure the economic stability of . . . the industry. The result they aimed at achieving was to create a better basis for collective bargaining, and thus direcdy to improve wage prospects. A combination with such an object is not unlawful because the object is the legitimate promotion of the interests of the combiners . . ." Lord Wright pointed out that just as each trader's rights are qualified by the rights of others to compete, so the rights of the employer are conditioned by those of the men to strike which is " an essential element in the principle of collective bargaining." In words which echo the scepticism of Mr. Justice Holmes he announced the acceptance by the courts of the principle of non-intervention in industrial disputes: " English law," he said, " . . . has for better or worse adopted the test of self-interest or selfishness as being capable of justifying the deliberate doing of lawful acts which inflict harm, so long as the means employed are not wrongful. . . . We live in a competitive or acquisitive society, and the English common law

51 52

See note 90, supra. Reynolds v. Shipping Federation [1924] 1 Ch. 28. Supra.

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Labour Law may have felt that it was beyond its power to fix by any but the crudest distinctions the metes and bounds which divide the rightful from the wrongful use of the actor's own freedom. . . Thus the striving for 100 per cent, organisation was recognised as a legitimate trade union objective, and the pursuit of a legitimate trade union objective if it was the predominant motive as a justification which excluded actionable conspiracy. This was the vindication of the policy I ventured to call collective laissez jaire, the posthumous triumph of the majority which had decided Allen v. Flood in 1897, and I think it reflected the attitude of a public opinion, especially of a middle-class opinion which, under the impact of the First World War, had begun to recognise that trade unions play a necessary part in society. Henceforth the courts would not intervene as long as the parties were engaged in conflicts of interest and their settlement through persuasion or pressure. Where, however, a union was bent on prestige policy, on " demonstrating their power," the courts would continue to enforce a code of good behaviour and the laws of industrial warfare.52"1 A very flagrant case of this kind, decided in 1957, involving the systematic persecution of a dissenter by a few local union representatives, showed the limits of nonintervention.53 It would not be difficult to give additional examples to show the practical operation of this policy of withdrawing the law from the battlefield of industrial hostilities. The complete neutrality of the State in matters such as the use of employment exchanges in the course of a strike,54 and the minute and complicated provisions designed to prevent unemployment benefit55 or assistance grants 5S from being used as dispute benefits show how unfounded were Dicey's fears that 57 " a slight legislative change in the terms of one enactment in the National Insurance Act might make it possible for strikers to support a contest with their employers by means of money in part supplied by the State." The decisions of the Referees under the former Unemployment Insurance Acts and This is probably the element which can serve to "reconcile" the Crofter case with Quinn v. Leathern. « Huntley v. Thornton [1957] 1 W . L . R . 321. 5 4 Employment and Training Act, 1948, s. 2 (5). 5 5 National Insurance Act, 1946, s. 13. 5 « National Assistance Act, 1948, s. 9 (3). 5 7 p. xliv. S2a

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of the Commissioners under the present National Insurance Act show that Dicey's suspicion of such administrative tribunals was groundless. I know of no case in which it could have been said of the insurance authorities that in the course of a labour dispute they had been guilty of " unneutral services." (h) The determination of the trade unions not to rely on the sanctions of the law has given to the autonomous forces of industry a position of strength in the British Constitution which is hardly paralleled elsewhere. What the State has not given, the State cannot take away. When, at the beginning of the Second World War, the parties to collective agreements were in France deprived of the power to fix wages, this prohibition was effective, and governmental regulation took the place of collective bargaining.58 In this country, where the parties do not rely on legal sanctions, such a step would be ineffective. To renounce protection spells independence: the independence of the collective bargaining partners from State protection, together with that of the arbitration tribunals and wages boards from State directives, is one of the main reasons why it is so difficult to envisage a consistent wages policy in this country. It has been observed5" that during the Second World War, " in general, the United States accepted more wartime control over wages and Great Britain accepted more control over employment." Nothing like the " ceilings " imposed by the American War Labour Board has ever existed here. What control over wage levels there was, operated, during the war, pardy through restrictions of the freedom to make and unmake contracts of employment, and in peacetime through White Papers and persuasion. The strong public opinion in favour of industrial autonomy may perhaps ultimately prove a national weakness. It would seem to frustrate any idea of planning in the area of industrial relations. III. The Use of Legislation for the Expansion of Existing Patterns and for the Filling of Gaps As I have already said, the first half of our century was very far from being an age of legislative quiescence in matters of labour 5 8 Durand, supra, Vol. Ill, pp. 444 et seq. s» Labour-Management Co-operation in United States War Production, ILO Studies and Reports, New Series, No. 6, 1948, p. 323.

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Labour Law law. The volume of statute law and of subordinate legislation passed during this period is impressive, you might even say gigantic. Much the most comprehensive bodies of legislation were in the fields of factory 60 and mining law, 61 that is in matters such as the health, safety and welfare of the workers, and of the hours of work of women and juveniles, 82 and in social security law. 63 In factory and mining law the standards were expanded and at the same time unified, and expansion and unification were, of course, also the watchwords of the great reform of social security law associated with the name of Lord Beveridge. 64 Most of this legislation shows two tendencies about which I should like to say a few words: a gradual extension of protective standards from industrial workers to the " new middle classes" and to the countryside, and a deliberate use of legislation to fill gaps left by collective bargaining. (a) Wherever we look in legislation, whether at nineteenthcentury statutes on the method of wage payments, 65 on hours of work, 66 or on safety and health, 67 or at twentieth-century developments in fields such as minimum wage laws 6 8 and social security, 89 we always see how the law proceeds by " trial and error," by progress from the particular to the general. Patterns of legislation are, as it were, tried out in one industry and then gradually extended to ever-widening circles. But to the turn of the century, and to a considerable extent beyond, " social legislation " meant, I think, in the minds of most people, legislation for the protection of manual •0 Factories Acts, 1937 and 1948 (1 Edw. 8 it 1 Geo. 6, c. 67; 11 & 12 Geo. 6, c. 55). « ! Mines and Quarries Act, 1954 (2 & 3 Eliz. 2, c. 70). 8 2 See also the legislation consolidated in the Shops Act, 1950 (14 Geo. 6, c. 28); and the Young Persons Employment Act, 1938 (1 & 2 Geo. 6, c. 69). «3 National Insurance Act, 1946 (9 it 10 Geo. 6, c. 67); National Insurance (Industrial Injuries) Act, 1946 (9 & 10 Geo. 6, c. 62). 4 4 The principle of '' comprehensiveness'' in social security law which permeates the Beveridge Report is expressly set out there: Cmd. 6404 (1942), No. 308. 85 e.g., the gradual extension o£ the "Particulars Clause" (now Factories Act, 1937, s. 112) from certain branches of the textile industry (1891) to all textile factories (1895) and, since 1901, to a wide sector of industry outside textiles. See Hutchins and Harrison, History of Factory Legislation (2nd ed., 1911), p. 220. 8 6 For details, see Hutchins and Harrison, Chaps. VII and VIII. « Ibid., Chap. X. 8 8 Compare, e.g., the Trade Boards Acts of 1909 and of 1918 and the scope of the Orders establishing trade boards under these Acts. 89 e.g., the development of the scope of workmen's compensation from the original Workmen's Compensation Act, 1897, to the Act of 1900, from that Act to the Act of 1906, and from there to the later measures consolidated in the Workmen's Compensation Act, 1925.

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workers. The expansion of legislative standards stopped short of the growing masses of clerical, distributive and administrative workers. To this day, shop assistants and clerical workers are, one exception apart,70 entirely unprotected against all those malpractices which go under the name of "truck." When in 1887 Charles Bradlaugh promoted the statute 71 which greatly extended the scope of the Truck Act,72 public opinion had not yet grasped the need for safeguarding people such as booking clerks, bus conductors or shop assistants, Bradlaugh's Act was explicidy restricted to manual workers,73 and there the matter rests 71 so that the preposterous discrepancies between the standards which apply to workers on the shop floor and those which apply to workers in the office remain part of the existing law. Attempts to regulate the working hours of juvenile shop assistants go back to the 1880s and 1890s,75 but the first comprehensive measure in this area was not taken until 1911,78 and legislation for the protection of distributive and clerical workers continued, and to some extent continues, to lag behind factory and mining laws.77 Yet, in the course of our century, the scope of protective legislation has been very much widened, and many standards have been generalised so as to include non-manual workers, especially those which apply to the employment of children.78 To some extent this is due to the influence of the Conventions of the International Labour Organisation which was perhaps greater in this field of British labour law than in many others.79 Partly this expansion was the result of strengthening the links between labour legislation and the law of education which 7

° Truck Act, 1896 (59 & 60 Vict. c. 44), s. 1 (3). " Truck Amendment Act, 1887 (50 & 51 Vict. c. 46). 72 s. 2 of the 1887 Act, redefining the scope of application of the Truck Act, 1831 (1 & 2 Will. 4, c. 37). 73 See the definition in s. 10 of the Employers and Workmen Act, 1875 (38 & 39 Vict. c. 90), which still applies. 74 That the law was in need of amendment was reported by a Home Office Departmental Committee in 1909. See Tillyard, The Worfer and the State, 3rd ed., p. 102. 75 For a survey of these statutes, see W. Mansfield Cooper and J. C. Wood, Outlines of Industrial Law, 3rd ed. (1958), p. 208. 7 ® Shops Act, 1911 (1 & 2 Geo. 5, c. 24). 77 Especially in matters of health, safety and welfare, as regards office and similar workers. See above (non-implementing of the Gowers Report of 1949). 7 ® Children and Young Persons Act, 1933 (23 & 24 Geo. 5, c. 12), s. 18, the culmination of a long legislative development. 79 See Employment of Women, Young Persons and Children Act, 1920 (10 & 11 Geo. 5, c. 65), and see also (with reference to women) Hours of Employment (Conventions) Act, 1936 (26 Geo. 5 & 1 Edw. 8, c. 22).

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Labour Law now decisively impinges upon the law of child employment.80 More important even was the growing insight into the need for protecting the health of the nation and therefore for a regulation of the working conditions of all employees which would be comprehensive, but at the same time minute and flexible. The extension of protective legislation to new categories of workers, together with its simplification and consolidation by statutes such as the Factories Act of 1937 and the Mines and Quarries Act of 1954, inevitably led to an increasing emphasis on subordinate legislation.81 The expansion of much social legislation so as to comprise non-manual workers can, however, be seen not only in legislation on hours of work and juvenile employment. The substitution by the 1946 legislation82 of national insurance against industrial accidents and occupational diseases for the old law of workmen's compensation has, amongst other things, led to a very much enlarged " coverage." Characteristically, under the old workmen's compensation law, there was a maximum salary limit beyond which protection did not extend.83 This was removed by the legislation following upon the Beveridge Report. The same was true of the pre-Beveridge legislation on other branches of social insurance, such as sickness84 and unemployment 85 benefit, and what were then called old-age pensions.86 All these limitations were swept away in 1946. It is the same with minimum wage legislation. When in 1945 the old Trade Board Acts of 1909 and 1918 were replaced by the modern law of wages councils,87 it became possible to lay down minimum standards of remuneration for distributive workers, and 80 81

82 83

84

85

88 87

Especially through ss. 58 and 59 of the Education Act, 1944 (7 & 8 Geo. 6, c. 31). This development met with opposition in certain quarters, especially, to some extent, among members of the legal profession. National Insurance (Industrial Injuries) Act, 1946. W o r k m e n ' s Compensation Act, 1925, s. 3 (2) (a) (as amended): the limit was at the time of the coming into force of the National Insurance (Industrial Injuries) Act, 1946, £420 a year. The limit did not apply to manual workers. Under the law prior to the coming into force of the National Insurance Act, 1946, the coverage of health insurance was limited by excluding non-manual workers earning more than £420 p . a . For details of the pre-1948 coverage of unemployment insurance, see Nos. 137 et seq. of the Beveridge Report. The upper income limit for non-manual workers also applied. The same upper income limit applied here. Wages Councils Acts, 1945 and 1948 (8 & 9 Geo. 6, c. 17; 11 & 12 Geo. 6, c. 47). Catering Wages Act, 1943 (6 & 7 Geo. 6, c. 24).

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the application of such standards to the retail trade since 1946 is, I think, one of the most significant social developments of recent years.88 Again, modern industrial arbitration89—voluntary and compulsory—applies to all employees alike,90 including local government officers of the very top rank. 91 In the last resort one may attribute this tendency to a transformation of the economy. The clerk and the salaried technical employee, such as the industrial draftsman, has a place in our society which, I suppose, is different from the place he occupied even half a century ago. It is inherent in technical progress that the number of such employees increases proportionately as higher skills are required in industry. Is there not a change in emphasis from the skill of the skilled worker, acquired through apprenticeship, to the skill of the technical employee, often acquired through institutional training, and is not " automation " going to give added impetus to this trend? As the proportion of the labour force engaged in non-manual labour grows, so perhaps grows the need for extending to them the code of protective legislation, and also the insight into that need. To some extent, but who knows how far, it may also mean that the pressure power of these groups increases, as, by social origin and industrial oudook, they tend to become and to feel themselves as part of the working class and thus to strengthen their union organisation. The extension of the scope of social legislation has in our own time also gone in another direction, and here, indeed, legislation during the last half-century has broken entirely new ground: the application of standards of protection to farm workers was, in a way, the immediate outcome of the two world wars and of the need for stimulating food production and of attracting workers to the land. Since the First World War agriculture has occupied a more important and perhaps a more honoured place in public opinion than in the nineteenth century. May one say that, as Free 88 89 90 91

See the Reports of the Ministry of Labour and National Service for 1947 (Cmd. 7559), p. 132; for 1948 (Cmd. 7822), pp. 116-117; for 1953 (Cmd. 9207), p. 111. Under the Industrial Courts Act, 1919, and the Industrial Disputes Order, 1951. National Association of Local Government Officers v. Bolton Corporation [1943] A.C. 166. See, e.g., R. v. National Arbitration Tribunal, ex p. South Shields Corporation [1952] 1 K.B. 46. The Industrial Disputes Order was of particular importance for local government officers. See Hansard (Commons) for November 19, 1958.

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Labour Law Trade receded, the protection of agricultural workers also became a matter of practical politics? Minimum standards for farm wages were first introduced in 1917,92 then emasculated in 1921,93 and re-established in 192494 as enforceable norms laid down on a county basis. The second decisive step was the establishment of the national minimum wage for agricultural workers, and this again was the result of war: it was taken in 1940.95 But not until 1956 were standards of safety, health and welfare for farm workers first incorporated in a statute,96 in partial acceptance of the Gowers Recommendations of 1949. Shop assistants and clerical workers are not noteworthy for their high organisation quotas, and union organisation in agriculture is of comparatively recent origin. This may pardy explain the order in which minimum standards of protection were established for various categories of workers. The progress of factory and mining law in the nineteenth century owed its vigour to the relentless pressure of the textile and miners' unions. Nothing of this order happened in the case of those workers to whom protective legislation was first applied in our own century. With some exaggeration, one can say that they are the beneficiaries of the preparatory work done by the industrial workers of the generation of our fathers and grandfathers. (b) For all its magnitude and social importance all this legislation was and is a supplement to collective bargaining. Standards of health, safety and welfare, or of hours of work of women and juveniles, and similar matters, do not, on the whole, lend themselves well to collective bargaining, and—exceptions apart97—they are much better enforced by inspectors than by union representatives. The expansion of protective legislation in our century has been in 92 Corn Production Act, 1917 (7 & 8 Geo. 5, c. 46). »3 Corn Production (Repeal) Act, 1921 (11 & 12 Geo. 5, c. 48). »< Agricultural Wages (Regulation) Act, 1924 (14 & 15 Geo. 5, c. 37). For details, see Sharp, pp. 380 et seq. 95 Agricultural Wages (Regulation) Amendment Act, 1940 (3 & 4 Geo. 6, c. 17). The statute now in force is a consolidating Act of 1948: Agricultural Wages Act, 1948 (11 & 12 Geo. 6, c. 47). There is corresponding legislation in Scotland. 96 Agriculture (Safety, Health and Welfare Provisions) Act, 1956 (4 & 5 Eliz. 2, c. 49). Unemployment Insurance was extended to agriculture by the Unemployment Insurance (Agriculture) Act, 1936 (1 & 2 Geo. 6, c. 14). 97 The most important exception is Workmen's Inspection in mining law, now under Part VII (s. 123) of the Mines and Quarries Act, 1954 (2 & 3 Eliz. 2, c. 70).

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areas which negotiation could hardly have reached. Thus, statutory holidays for women and young persons are regulated by statute,98 but the principle of annual holidays with pay was, except for industries with inadequate bargaining machinery, carried into effect by the unions and employers' associations themselves." The subsidiary character of protective legislation explains why, since Dicey's day, a considerable structure of wage regulation law has been erected on the slender foundation of the Trade Boards Act of 1909,1 decried by Dicey as socialist or collectivist. The spirit which animated the recommendations of the Whidey Committee 2 during the First World War and the Trade Boards Act of 1918,3 which was their result, is still the decisive influence today, despite the important changes introduced at the end of the Second World War by the Wages Councils Act of 1945.4 In its Second Report 5 the Whidey Committee proposed a purely voluntary, extra-legal, organisation through joint industrial councils for all industries except those " in which organisation is so imperfect either as regards employers or employed, or both, that no associations can be said to be adequate to represent those engaged in the industry." By removing the requirement that, to justify the creation of wage regulation machinery, wages had to be shown to be " exceptionally low," the Act of 1918 allowed this machinery to become a " stop gap " wherever collective bargaining did not work. In the speech6 with which in 1944 he introduced the Wages Councils Bill in the House of Commons, Bevin, then Minister of Labour, emphasised the supplementary character of British minimum wage law, but also the need for taking precautions against the onset of the deflationary crisis which a large sector of public opinion then expected to occur after the War. The Wages Councils Act was thus intended to make minimum wage machinery available as a " prop for tottering bargaining machinery," a preventive, and not only as under the previous law a curative measure. The Act was passed by a Coalition Government—wages councils and similar bodies are no longer 98 99 1 2 3 *

Factories Act, 1937, s. 78. Industrial Relations Handbook (rev. ed., 1953), Part IX. 9 Edw. 7, c. 22. Second Report, Cd. 9002. 8 & 9 Geo. 5, c. 32. 8 & 9 Geo. 6, c. 17. 5 See Sharp, pp. 320 et seq. « 407 Hansard, 69.

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an object of political controversy, but neither union nor employer opinion appears to be completely unanimous in this respect.7 For Dicey 8 " the importance of any Minimum Wage Law " was " the admission of Parliament that wages can rightly be fixed by law and not by the mere haggling of the market." This is true, of course, but only in a very limited sense. Wages are not fixed by Parliament or by the civil servants of the Ministry of Labour. True, except in agriculture,9 the Minister makes the wages regulation orders,10 but these rest on the recommendations of the tripartite councils or boards which the Minister can accept or refer back, but which he cannot amend. The councils or boards consist of a majority of union and employers' representatives and a minority of independent members, i.e., lawyers, economists, etc., who do not vote if the representative members agree.11 Thus, while it may be State intervention in the legal sense, wage regulation may in the social sense not be very different from collective bargaining, and a wage regulation order—legally a statutory instrument—may, especially at times of full employment, often be considered as something very akin to a negotiated agreement, an outcome of the collective haggling of the market. I am not forgetting that, more than thirty years ago, a serious crisis arose partly out of conflicts between the Minister and the trade boards,12 but experience has shown that, to say the least, it is not easy for a Minister to pitch an anti-inflationary policy against the combined forces of the two sides of a wages council.13 One further point: in the critical cases 14 the Minister cannot, and in the other cases he does not normally, set up a new wages council and thus extend the machinery to a new group of workers, without a recommendation to this effect from a " commission of inquiry," a tripartite body the " representative " members of which are not, however, taken from the industry concerned.15 This is a Guillebaud, The Wages Councils System in Great Britain (1958), pp. 26 et seq. p. xlix, note 4 . » Agricultural Wages Act, 1948, s. 3 . Wages Councils Act, 1945, s. 10; Catering Wages Act, 1943, s. 8. 1 1 Guillebaud, The Wages Councils System in Great Britain (1958), p. 17. !2 Sells, British Wages Boards (1939), Chap. I X , pp. 244 et seq. 1 3 See the Annual Report of the Ministry of Labour and National Service for 1952 (Cmd. 8893), p. 119. 14 i.e., those in which a wages council is to be set up by reason of existing machinery being likely to cease to exist or to be adequate for its purpose. 1= Wages Councils Act, 1945, ss. 1 (2) (£), 4, 9, Second Schedule, No. 3. 7 8

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pattern of "functional democracy" not infrequently used in modern law 16 : the point of view of labour and management in general (represented by panels selected by the Trades Union Congress and by the British Employers' Confederation, not by particular associations on either side) is brought to bear on the decision to be made. The representatives speak for management or labour, but take a detached view of the industry to which the decision refers. Seen from outside, minimum wage law is the most significant example of State intervention. Yet, for the three reasons I have indicated it is most closely linked with the control of labour relations by the collective parties themselves. Its purpose as a substitute for negotiating machinery, its operation through tripartite councils and boards, and to some extent its creation with the aid of commissions of inquiry show that it is an adjunct of, a gloss to, collective bargaining. One of its most important objects is to educate the parties in voluntary negotiation and to make itself redundant. 17 State intervention is intended to help the autonomous forces of industry in arriving at a satisfactory organisation. This is characteristic of the spirit of British labour legislation of our time, and it is something which Dicey did not foresee. It has been pointed out by two of the most eminent French experts in labour law 18 that in France the growth of State-created and State-enforced standards of social policy, including such things as minimum wages, holidays, etc., has led to an impoverishment of collective bargaining. Nothing would be further from the truth in this country. I spoke of two currents of legislative opinion: nonintervention, and the use of a large body of legislation for the gradual expansion of existing standards and so as to fill gaps in voluntary negotiation. The " trial and error " method of labour law, and its subsidiary character, together with the pluralistic policy to use the parties themselves in the legislative and administrative processes, may have prevented a conflict between 16

17

18

e.g., in practice under the Industrial Courts Act, 1919, and under the (now revoked) Industrial Disputes Order, 1951. The same pattern was used under the now expired Cotton Manufacturing Industry (Temporary Provisions) Act, 1934. For cases in which, owing to growth of voluntary machinery, Wages Councils were abolished (see Wages Councils Act, 1945, s. 6; Wages Councils Act, 1948, s. 4): Cmd. 7559, p. 132; Cmd. 9207, p. I l l ; Cmd. 9791, p. 114; Cmnd. 242, p. 111. Rouast et Durand, Précis de Legislation Industrielle (1951), pp. 233, 253.

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Labour Law these tendencies, and allowed collective bargaining to flourish and to increase in volume and in subject-matter at a time when legislation also grew prodigiously. It will now, in conclusion, be my task to show that a large measure of individualism is also compatible with these tendencies. IV. The Individualist Tradition Not even the most cursory survey of labour law can fail to register the tenacity with which public opinion has upheld the principle of freedom of contract between employer and employed, and the readiness with which the legislature and the courts have responded to this demand. By " freedom of contract" I do not mean the power to lay down the substance of the mutual rights and duties between the parties to the contract—in this sense " freedom of contract" is little more than a necessary figment of legal thought. I am referring to the power to decide whether or not to enter into or to terminate the employment relationship. Very often, of course, the worker, when deciding to accept employment, will be very far from being a free agent in any real sense. In the legal sense, however, and this is important, there is no compulsion. If there is one thing on which public opinion on all sides, and Parliament and the courts, agree, it is the refusal to have even a vestige of compulsory labour in peacetime. I would venture a guess that, in our century, the general insistence on this principle derived much of its pathos from the growing knowledge of what was happening in many parts of Europe and Asia. No one, perhaps, gave more vivid expression to this sentiment than Lord Atkin. When confronted with the technical question whether on the amalgamation of two companies by a court order the contracts of employment were transferred with the other assets and liabilities, he confessed that it appeared to him " astonishing that, apart from overriding questions of public welfare, power should be given to a court or to anyone else to transfer a man without his knowledge, and possibly against his will, from the service of one person to the service of another. I had fancied that ingrained in the personal status of a citizen under our laws was the right to choose for himself whom he would serve, and that this right of choice constituted the main 253

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difference between a servant and a serf." 19 These words were spoken in the House of Lords in August 1940 by the same judge who, not many months later, vindicated his claim to be remembered as one of the champions of civil liberties in our time.20 It is almost impossible to believe that Lord Atkin, when speaking the words I have quoted, was not consciously or unconsciously influenced by what he knew about contemporary events in Germany and elsewhere. In spite of the strength of these sentiments, public opinion accepted during both world wars a very large measure of infringement of freedom of contract. The system of leaving certificates 21 during the First World War went very far, but even more serious perhaps were the powers of the Ministry of Labour 2 2 during the Second World War to direct persons into employment—however sparingly they were exercised—and the effect of the Essential Work Orders, 23 which deprived the employer of the right to dismiss and the worker of the right to quit. These Orders were made with the co-operation of both sides of industry 24 and this, as well as the fact that the Minister in charge was by origin and outlook closely associated with the trade unions, may help to explain that they were tolerated by public opinion. The alternative to compulsory measures of labour market control might perhaps have been a control of wages (as, e.g., in the United States). I think the two sides of industry, and especially the unions, preferred a temporary encroachment upon freedom of contract to a limitation of collective bargaining. Direction of labour and glebae adscriptio through Essential Work Orders were bad enough, but were they not considered as still better than maximum wages? In any event, soon after the end of both wars, all measures of this kind were revoked. 1® No\es v. Doncaster Amalgamated Collieries [1940] A.C. 1014. This refers to Lord Atkin's dissent in Liversidge v. Anderson [1942] A.C. 206. 21 Under s. 7 of the Munitions of War Act, 1915 (5 & 6 Geo. 5, c. 54). See, for its operation, Amulree, pp. 127-128; Askwith, pp. 426 et seq. 22 Defence Regulation 58A. See, for a survey of the system of labour controls during the Second World War and of their use in practice, Ministry of Labour and National Service, Report for the Years ¡939-46 (Cmd. 7225), Chap. VII, pp. 39 et seq., and on direction of labour, especially pp. 40-41. 2 3 See Cmd. 7225, pp. 47 et seq. 24 See Cmd. 7225, p. 4. This is the essential difference between the labour market controls, including Essential Work Orders, in this country, and the Orders of the Nazi Government (especially the Decree of September 1, 1939), which were similar in wording and purpose, but diametrically different in operation, owing to the suppression of trade unions and employers' associations.

20

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Labour Law The general distaste of anything savouring of compulsory labour has had its effect, I think, mainly in two directions: upon the attitude of the law towards the freedom to strike, and upon the method of guiding the labour market and of promoting mobility of labour in peacetime. (a) Denial of freedom to strike is equivalent to compulsion to work, and denial of freedom of lockout is equivalent to compulsion to employ. Even in situations in which the public interest in preventing industrial stoppages may be assumed to be paramount, it does not, in the eyes of the law, justify in peacetime a compulsion to continue an employment relationship. Thus workers in public utility—gas, water 25 and electricity26—undertakings are free to strike if they give the contractual notices, and only a breach of contract may for them be a criminal offence. And even where a strike involves a serious threat to life, health or property, participation in it is no offence if the contracts have been terminated by proper notice. Even more interesting in this context is the Emergency Powers Act,27 passed in October 1920 during a strike in the coal mining industry and prompted by the apprehension of combined action on the part of the " Triple Alliance " of miners', railway and transport unions.28 The Act (which has been used only very rarely 29 ) gives far-reaching powers to the Government in the event of a " state of emergency," i.e., broadly speaking, if interference with the supply and distribution of food, water, fuel or light, or with transport, threatens to deprive the community of the essentials of life.30 But even then the Government may make no regulations " imposing any form of . . . industrial conscription " or making participation in a strike or peaceful picketing a criminal offence.31 We find a similar attitude even in the Act 32 passed in 1927, as a result of the General Strike, and repealed in 1946.33 By that Act sympathetic and political strikes were outlawed, but the threat of punishment was directed only against those declaring, 25 Conspiracy and Protection of Property Act, 1875 (38 & 39 Vict. c. 86), s. 4. 2« Electricity (Supply) Act, 1919 (9 & 10 Geo. 5, c. 100), s. 31. 10 & 11 Geo. 5, c. 55. 28 Milne-Bailey, Trade Unions and the State (1934), p. 55. 29 Citrine, Trade Union Law, p. 21, note 85. 30 s. 1 (1). For the powers exercised under the Act at the time of the General Strike, see Citrine, p. 488, note 29. 31 s. 2 (1), provisos. 32 Trade Disputes and Trade Unions Act, 1927. 33 Trade Disputes and Trade Unions Act, 1946.

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instigating or inciting others to take part in an illegal stoppage or otherwise acting in its furtherance and " no person " was to be " deemed to have committed an offence . . . by reason only of having ceased work or refused to continue to work or to accept employment." 34 Clearly, even those promoting this—in peacetime conditions—extreme interference with freedom to strike shrank from denying it to the individual worker and from thus introducing compulsory labour, however much the practical effect of this protection of the individual may have been attenuated by the threat directed against the leaders. Respect for freedom may not, of course, have been the only and perhaps not even the main legislative motive in all these cases: the criminal law is a very blunt instrument to make people work. Compulsory labour is not only repellent but notoriously inefficient. Nevertheless, under the stress of the situation of 1940, trade unions and employers accepted a system of compulsory arbitration which involved a threat of criminal prosecution against all those taking part in strikes and lockouts in connection with trade disputes.35 Nor was this a dead letter. During the War there were 111 prosecutions involving over 6,000 people, mainly " cases where workpeople were acting in defiance of their union and by their action were impeding the war effort." 3 " The Order remained in force after V.-E. Day, but no one was prosecuted until, in the autumn of 1950 and early in 1951, some leaders in a gas strike and in a dock strike were tried at the Old Bailey.37 The second prosecution was the death knell of the Order: the unions insisted on its revocation, and, with the agreement of all those concerned,37 the Order was, in 1951, replaced by a reformed 38 scheme of compulsory arbitration under which all threats of prosecution for conducting, or participating in, industrial stoppages have disappeared. In peacetime the power to interfere with freedom to strike was tolerated only as long as it was not used. As early as 1947 the courts had seen to it that the machinery of compulsory arbitration could not be used so as to force an s. 1 (1) and (2) of the 1927 Act. Conditions of Employment and National Arbitration Order, 1940 (S.R. & O., No. 1305), Art. 4, and Defence (General) Regulation, Art. 92. 3« Cmd. 7225, p. 282. 37 Industrial Relations Handbook (rev. ed., 1953), p. 134. 38 Industrial Disputes Order, 1951 (S.I. 1376), Art. 12 (3)—now revoked. 35

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Labour Law employer to employ a worker. The courts have always disclaimed the power specifically to enforce an obligation to work or an obligation to employ, and refused to issue decrees for the specific performance of contracts of employment, a practice which is perhaps itself an outcome of a policy against compulsory labour as well as of the insight into the futility of attempts to make people work or employ under threats of committal and attachment. They would not agree that a power of compulsion not exercised by the courts could, in the absence of very clear words in the relevant legislation, be regarded as vesting in an arbitration tribunal.39 (b) Since the White Paper on Employment Policy of 1944,40 all parties and all governments have been committed to a policy to maintain a high level of employment. However, even this fundamental policy which is, I think, supported by a very strong current of opinion irrespective of party, and the Employment and Training Act of 1948 41 which must be seen in its light have not been allowed to justify encroachments on freedom of contract as a technical means of promoting employment. The Act which today provides the framework for the employment exchanges, first introduced in 1909,42 imposes upon the Minister of Labour the duty to provide services and facilities for the purpose of promoting employment in accordance with the requirements of the community. These include training courses, financial assistance for the removal and resettlement of workers, and, most important perhaps, the Youth Employment Service, that is to say, measures designed to counteract unemployment by making labour more mobile occupationally as well as geographically and by guiding school leavers into careers which promise steady employment. Future historians may perhaps say that the experience of mass unemployment, and especially youth unemployment in the twenties and thirties was, apart from war, the greatest shock this country, together with the 39

40 41 42

R. v. National Arbitration Tribunal, ex p. Horatio Crowther & Co. [1948] 1 K..B. 424. Whether the decision (which destroyed the correlation between the scope of compulsory arbitration and the scope of the then prohibition to strike) was correct, is here irrelevant. The point is that it indicated the strength of the judicial policy directed against compulsory employment. It aroused a great deal of public interest at the time, and contributed to the dissatisfaction of the unions which eventually led to the supersession of the 1940 Order by the 1951 Order. Cmd. 6527 (1944). 11 & 12 Geo. 6, c. 46. Labour Exchanges Act, 1909 (9 Edw. 7, c. 7). G.T.T.

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rest of the Western world, received in the first half of our century. But even this shock, and the policy to which it gave rise, have not impaired the principle of freedom of contract. The powers of the Minister under the Act are merely financial and advisory. No one can be compelled to undergo retraining, to change his home, to choose a career or to accept a job. It is not a matter of course in the world in which we live. Yet there are cases, admittedly exceptional, in which the result of the choice between the policy of freedom of contract and the policy of counteracting unemployment goes the other way. Thus employers can be compelled to provide jobs for disabled persons and may not dismiss them at will,43 but the law is realistic enough to say that an unlawful dismissal, though a criminal offence, terminates the contract. Employers are also placed under an effective compulsion to contract by reinstating their former employees returning from the Forces,44 but a special administrative tribunal has been appointed to see that legitimate interests on both sides are not violated.45 The most far-reaching encroachment on freedom of contract in peacetime, however, results from the Scheme for the decasualisation of the dock workers 46 under which this freedom reaches vanishing point and status is practically substituted for contract. Under the Scheme the dock workers are, to some extent, protected against the consequences of the casual nature of their employment. They receive from the dock labour board a retainer as long as no work can be found for them. Inevitably this means that a docker on the register has to accept work offered by an employer on the register, and that such an employer must not offer work to anyone not on the register. Without these restrictions the Scheme would not be workable; they are the price workers have to pay for their " attendance money " and employers for the « Disabled Persons (Employment) Act, 1944 (7 & 8 Geo. 6, c. 10). 44 Originally the Re-instatement in Civil Employment Act, 1944 (7 & 8 Geo. 6, c. 15), for practical purposes now mainly superseded by Part II of the National Service Act, 1948 (11 & 12 Geo. 6, c. 64), and Re-instatement in Civil Employment Act, 1950 (14 & 15 Geo. 6, c. 10). 45 Under s. 41 of the National Service Act, 1948 (Reinstatement Committees and Umpires). For details, see Mansfield Cooper and Wood, Outlines of Industrial Law, 3rd ed. (1958), pp. 261 et seq. 46 Dock Workers (Regulation of Employment) Scheme, embodied in the Schedule to the Dock Workers (Regulation of Employment) Order, 1947 (S.R. & O., No. 1189), made under the Dock Workers (Regulation of Employment) Act, 1946 (9 & 10 Geo. 6, c. 22). For a very interesting analysis of its operation, see the Report of a Committee under the chairmanship of Devlin J., Cmd. 9813 (1956).

258

Labour Law participation in the pool of labour supply, and refusal to accept work may cost the worker, as may employment of outsiders cost the employer, his place on the register. 47 Only the need for removing the extreme hardships suffered by the dockers as a result of the casualness of their labour has, I think, been able to induce public opinion to accept so significant a breach with the tradition of freedom of contract. Nor should we, in considering this tradition, forget that public opinion which frowns upon direct compulsion to accept employment tolerates the indirect compulsion which is involved in the disqualification for unemployment benefit 48 following upon a refusal by the claimant to avail himself of training facilities or of suitable employment opportunities. This rule is, and must be, generally accepted, and it has been inherent in unemployment insurance law ever since Lloyd George's National Insurance Act of 1911.49 But trade union opinion objected to the further rule which imposed upon the claimant the burden of proving that he was genuinely seeking work, and since a statute of 1930, passed as a result of the Report of the Morris Committee of 1929 and of the evidence given by the General Council of the T.U.C. before it, 50 it has been for the insurance authorities to prove that the claimant has rejected suitable employment, and this is the law today. Employment is, however, suitable though it involves a change of residence or, provided a reasonable time has elapsed since the last job, a change of occupation. 51 Subject to the housing shortage, a threat of withholding unemployment benefit for six weeks can thus be made a lever towards geographical mobility and, in limits, also towards occupational mobility of labour. Is it not perhaps characteristic of a not unimportant trend of working-class opinion that a change of occupation is assumed to be a greater hardship than a change of one's home? (c) So far, I have spoken of the individualist tradition in terms of freedom of contract, and I have not yet said anything about the protection of the individual against superior social forces. The 47 48 49 50 51

See paras. 8, 9, 15 and 16 of the Scheme. National Insurance Act, 1946, s. 13. s. 86. See for details, Tillyard, Unemployment 1911-48, pp. 18 et seq. See Tillyard, Chap. 6, pp. 91 et seq. National Insurance Act, 1946, s. 13 (5).

259

Insurance

in

Great

Britain,

Legal Developments contribution which the courts are making in this respect arises from their increasing willingness to protect minorities inside trade unions. On this I need not say much because Professor Lloyd discussed it here a few weeks ago. I should, however, like to say one word to link his remarks about internal trade union law with what I have said in this lecture. The change of the courts from an attitude of abstention to an attitude of intervention and protection in matters of domestic trade union law, especially in expulsion cases,52 may perhaps be connected with the general change in middle-class opinion towards trade unions which, as I have said, followed to some extent upon the experience of the First World War. It is, however, also an almost necessary corollary of the growing policy of non-interference with labour-management relations, and especially with the operation of 100 per cent, union and closed-shop practices. If the courts accept the power of the unions, through granting or withholding membership, to grant or withhold access to the trade, they must see that the power over membership is not arbitrarily exercised. The courts cannot control admissions,53 nor is there, in a very homogeneous society, much need for doing so.54 They can, however, and must, and increasingly do, prevent unions from misusing through wrongful expulsion their power of industrial ostracism. In this sense the courts are, as Professor Lloyd has shown, renewing a tradition of protecting the individual by safeguarding his " right to work." 5 5 (d) This particular development is, more than other things I have mentioned, influenced by that powerful section of public opinion which is formed by the legal profession. A good deal of what I have discussed many lawyers would not recognise as " law." The reason is that the legal profession has less to do with industrial relations in this country than perhaps anywhere else in the world. Some eminent judges, such as—to mention only those who are no longer alive—Sir Edward Fry, Lord James of Hereford, Lord 52

53

54 55

Compare, e.g., Rigby v. Connol (1880) 14 Ch.D. 482 with Amalgamated Society of Carpenters v. Braithwaite [1922] 2 A.C. 440, and with Bonsor v. Musicians' Union [1956] A.C. 104. Except in a case of discrimination in admission by reason of unwillingness to contribute to the union's political fund (Trade Union Act, 1913, s. 3 (1) (b)), a case which does not seem to have arisen in practice. Contrary to the position in America: Steele v. Louisville & Nashville R.R. Co., 323 U.S. 192 (1944). See especially the judgment of Denning L.J. (as he then was) in Lee v. Showmen's Guild of Great Britain [1952] 2 Q.B. 329.

260

Labour Law Greene and Lord Porter, had indeed a formative share in the development of labour-management relations, and we all know how important is the role played by lawyers as chairmen and independent members of arbitration and wages boards and of insurance tribunals. But the legal profession in general has little to do with collective bargaining, with protective legislation or with social security. All this is not—whatever the term may mean—considered as " lawyer's law." There is, however, one exception: the civil liability of the employer for accidents suffered by his workmen is today in the forefront of the interests of the legal profession. This is, indeed, a conspicuous and fascinating illustration of the impact which public opinion has on the law. It is, I think, also an example to show how a more enlightened principle of protecting the individual has, in some respects, superseded the crude postulate of mechanical equality which had such a powerful influence on the common law. One cannot help feeling that, towards the end of the last century, a more differentiated social conscience and a more realistic view of the employment relationship gradually began to make themselves felt in the decisions of the courts. The judges seemed, sometimes at least, to regret that a robust laissez-faire ideology had induced their predecessors to invent and to develop a doctrine of " common employment" which imputed to the worker as a contracting party an intention to relieve his employer of liability for the negligence of his " fellow-servants."56 The doctrine was gradually whittled down by the courts through a series of technical devices such as the non-delegatable duty to provide a safe system of work,57 the restriction of the " fellow-servant" concept,58 above all through the principle that the employer is almost absolutely liable for the breach of duties imposed by protective safety legislation such as the Factories and Mines Acts.59 Much of this had already occurred before Dicey published his second edition, but some of the most important cases were decided between the two Wars. It was, however, only in connection with the new insurance legislation and as a result of the Beveridge and Monckton 5« Hutchinson v. Yor\ and Newcastle Ry. (1850) 5 Ex. 343; Bartonshill Coal Co. v. Reid (1858) 3 Macq. 266. " Wilsons and Clyde Coal Co. v. English [1938] A.C. 57. 5« The Petrel [1893] P. 320; Radcliffe v. Kibble Motor Services, Ltd. [1939] A.C. 215. «9 Baddeley v. Granville (1887) 19 Q.B.D. 423; Groves v. Wimborne [1898] 2 Q.B. 402.

261

Legal Developments Reports 60 that the doctrine of common employment was abolished by statute after the Second World War. 6 1 Today there can hardly be any country in which the civil liability of the employer for factory accidents—and normally this means the liability of the insurance company—goes as far as it does here. As has been pointed out, especially in the United States,62 the social function of accident liability is to distribute the risk among the largest possible number of individuals. Employer's liability, that is insurance companies' liability for accidents, means that through the insurance premium which is part of the cost of production the purchaser of the product ultimately bears the risk of accidents to the workers who helped to manufacture it. This, if you like, " socialisation " of accident risks is the most important contribution which the legal profession has made to labour law.63 It shows that even in a sphere seemingly far away from " politics," in the very sanctissimum of the common law itself, Dicey's thesis of the relation between law and public opinion emerges triumphant. But though, as I have said, the share of the legal profession in the evolution of labour relations has been small, we can discover a subtle and intangible, but unmistakable affinity between the spirit of these relations and that of the English legal tradition. Compare the way collective bargaining is organised in a large section of the British economy with the methods used elsewhere. Here all the emphasis is on institutions such as joint industrial councils and the like, on the machinery, its constitution, above all its procedure. The substantive rules about wages, hours and other conditions are not, as they are in many foreign countries, built up as a series of systematically arranged written contracts between employers and unions. They appear as occasional decisions emanating from permanent boards on which both sides are represented and sometimes they are informal understandings, " trade practices " never reduced to writing. A very firm procedural framework for a very flexible 60 Final Report of the Departmental Committee on Alternative Remedies, Cmd. 6860 (1946). 6 1 Law Reform (Personal Injuries) Act, 1948 (11 & 12 Geo. 6, c. 41). It was abolished with reference to personal injuries. 6 2 Harper and James, The Law of Torts, Vol. 2, pp. 742 et seq., 771 et seq. 6 3 It remains to be seen whether the decision of the House of Lords in Lister v. Romford Ice and Cold Storage Co. Ltd. [1957] A.C. 555 marks the beginning of a retrogressive development.

262

Labour Law corpus of substantive rules, rather than a code laid down for a fixed time—such is the institutional aspect of much collective bargaining in this country. Where Americans and most Continental Europeans talk about " contracting," British employers and trade unionists talk about " establishing a negotiating machinery." They have thus succeeded in devising something much more like collective administration than collective contracting, and they have, I think, succeeded in making the entire process more dynamic and adaptable than it is in most foreign countries. Clearly, such a method of collective bargaining defies legal categories, and especially those of the law of contract, but equally clearly its emphasis on procedure and its rules is very close to the traditional approach of the common law. Any suggestion of systematic clarification is as repellent to the two sides of industry as it is to the common lawyers. Like the common law, the body of customary norms which govern industry often looks chaotic from outside—it does not derive its principle of order from its inherent logic, but from the continuity of the institutions which are intended to adapt it to new needs as they arise. In the last analysis it is the spirit of empiricism which presides over the law as well as over industrial relations in Britain.

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CRIMINAL AND

LAW

PENOLOGY HERMANN MANNHEIM

1. IT is, I believe, the essential object of this series to sketch the changes which have occurred in the first half of the present century in the relations between public opinion and the various disciplines represented. Not all the changes in criminal law and the penal system which have occurred within this period can, of course, be related to public opinion in one single lecture, but at least some of the most important events due to changing public opinion, and also the meaning of this evasive term itself; the changes which the concept has undergone in the past fifty years; our changing attitudes towards it and, above all, the views of Dicey whose great book has so obviously inspired this course. 2. Is the problem of " Law and public opinion " still the same today as it was for Dicey fifty or sixty years ago? First, whose opinion is it that Dicey had in mind? There are certain contradictions on this subject in the very first of his Lectures. While maintaining 1 that in England public opinion does not, as in some foreign countries, mean " convictions held by a small number of men, or even by a single individual," only a few pages later he makes the important, though perhaps unconscious, admission that " in England the beliefs or sentiments which, during the nineteenth century, have governed the development of the law have in strictness been public opinion, for they have been the wishes and ideas as to legislation held by the people of England or, to spea\ with more precision, by the majority of those citizens who have at a given moment ta\en an effective part in public life." 2 Moreover, Dicey makes it quite clear that he is not concerned with public opinion as such but only with " legislative " or " law-making" public opinion, i.e., opinion which "has told on the course of 1

2

A. V. Dicey, Lectures on the Relation between Law and Public Opinion in England During the Nineteenth Century (2nd ed., London, 1914), p. 4. References in this paper are throughout to the second edition. pp. 9-10. Italics mine.

264

Criminal Law and Penology legislation," 3 thereby again excluding views which, though perhaps widely and strongly held, did not succeed in becoming embodied in the law. Surely these are most significant restrictions, and we cannot be too much surprised to find that Dicey has been taken to task by one of our present-day social scientists for showing no interest in the opinions of the general population, of the man in the street, and regarding " public " opinion as " litde more than the views of the sharply limited clan of intellectuals whose writings direcdy influenced the minds of the nation's legislation." 4 In the words of John Madge, there is still an element of " paternalism " in this concept of public opinion. On the other hand, it might be argued in Dicey's favour, that with the increasing humanity of penal legislation and the disappearance of cruel treatment of the most glaring kind the man in the street is becoming less and less interested in penal reform. Might it not also be said that now, with the abolition of most minimum penalties in English criminal law, judicial discretion is, by and large, well able to take care of any possible iniquities? Or should we have to expect such a growing refinement of sentiments that, as Durkheim anticipated with regard to the evolution of the criminal law, the public will in future react even to comparatively minor hardships inflicted on lawbreakers as strongly as it did in the past to wholesale executions? There are some other points which might well be remembered by critics of Dicey's " paternalistic" concept of public opinion. First, although—as the Director of the British Institute of Public Opinion thinks—we may have " moved a long way since Sir Robert Peel wrote in 1820 . . . of ' that great compound of folly, weakness, prejudice, wrong feeling, right feeling, obstinacy, and newspaper paragraphs, which is called public opinion,'" 5 even in modern sociology there is no hard and fast definition of the term " public opinion " and attempts are not infrequendy made to restrict this ' p. 17. Mark Abrams, Social Surveys and Social Action (London, Heinemann, 1951), p. 63, approvingly quoted by John Madge, The Tools of Social Science (London, Longmans, 1953), pp. 179-180. 5 Henry Durant, British Journal of Sociology, Vol. VI, No. 2 (June 1955), p. 150. Peel's dictum is also quoted by Dicey, p. 20, note 1.

4

265

Legal Developments term to opinion which, in contrast to " mass opinion," is comparatively stable and rational.6 Moreover, it should not be forgotten that in Dicey's time scientific techniques in the modern sense for the assessment of public opinion did not exist; there were no Gallup Polls, no Social Surveys. Had they been in existence we do not know, of course, whether Dicey would have been willing to make use of them. However, even today the question may well be asked whether, after so many years of public opinion research, we are in a better position to say what the state of public opinion really is on any subject in our disciplines of criminal law and penology. With perhaps one or two small-scale exceptions, modern techniques of public opinion research have simply not been used in this much-neglected field 7 —a point which will be dealt with later in this paper. 3. Did Dicey, in this book, show any particular interest in our subject and the bearing of public opinion on criminal legislation and penal reform? The answer can hardly be in the affirmative. In a way, Dicey's neglect of the criminal law is not altogether surprising. Quite righdy, he regards this branch of the law as something to be reduced to the utmost minimum because, he writes, " criminal proceedings are, as compared with civil proceedings, ineffective. For their very severity detracts from their utility." 8 And it could indeed be argued that the trend towards " collectivism " and an expansion of social legislation, so eloquently described by Dicey, should be accompanied by a contraction of the criminal law, with the exception, of course, of provisions which are indispensable as a protective screen to practically every piece of social legislation. References to criminal statutes are, therefore, comparatively rare in Dicey's book. They are occasionally used to illustrate such matters as the notorious slowness of law reform in the nineteenth century, mitigated to some extent by the refusal of jurors to apply excessively harsh statutes. The law of conspiracy and the Combination Acts for the suppression of strikes and trade unions—subjects dealt with 6

7

8

See Arnold M. Rose, Theory and Method in the Social Sciences (Minneapolis, The University of Minnesota Press, 1954), pp. 211 et seq. See also William Albig, Public Opinion (New York and London, McGraw Hill Book Company, 1939), Chap. 1. For one such exception, see H. J. Eysenck, British Journal of Sociology, Vol. II, No. 3 (September 1951), pp. 198 et seq. p. xlvii.

266

Criminal Law and Penology at considerable length by Dicey—have been the province of the lectures on Associations and on Labour Law in the present series and are therefore outside the scope of my paper. What does seem to be somewhat surprising, however, is that in Dicey's long and thoughtful Introduction to the second edition, published in 1914, no reference whatsoever is made to that remarkable, indeed almost unique, series of four major statutes which, within the decade from 1898 to 1908, virtually reshaped the whole administration of criminal justice in this country, i.e., the Prison Act, 1898, which provided the basis for prison administration and prison reform for the fifty years until the passing of the Criminal Justice Act, 1948; the Probation of Offenders Act, 1907; the Prevention of Crime Act, 1908, which established the Borstal System and Preventive Detention; and, lastly, the Children Act, 1908, which introduced the Juvenile Courts. Surely, a series of legislation which might have provided some food for thought on the subject of " law and opinion " and might even have been used to illustrate the progress towards " collectivism." In 1905, when so much of that great outburst of new penal legislation was already beginning to take shape, Dicey regards it as " at least possible that in England the legislative activity of Parliament may again decrease and the country again enter upon another period of legislative inertia." 9 4. Even so, there are, of course, in Dicey's masterly analysis a great many points of real value to the criminal lawyer and penologist. The following, above all, taken from his lecture on " Characteristics of law-making opinion in England," 10 would seem to require some special discussion. "Laws foster or create law-ma\ing opinion." " This assertion," he adds, " may sound, to one who has learned that laws are the outcome of public opinion, like a paradox . . ." Closely connected with this, there is his further statement, referring not to penal statutes but to the Reform Act of 1832 and the Divorce Act of 1857, that " law and opinion, indeed, are here so intermixed that it is difficult to say whether opinion has done most to produce legislation or law to create a state of legislative opinion." We are reminded of the words of Goethe's Mephisto, " du glaubst zu schieben, und du wirst geschoben " (you think you are pushing, whereas in fact you are » p. 18. 10 Lecture II, especially pp. 41 et seq.

26 7

Legal Developments the one who is being pushed). In the history of criminal justice it has happened again and again that legislation pretending to be the inescapable result of the trend of public opinion did actually itself create that state of public opinion which had not, or at least not as strongly, existed before. More than a century ago, a famous German lawyer and penologist, C. J. A. Mittermaier, wrote with reference to the degrading penalties characteristic of his period: " Public opinion in Germany regards infamy not as a consequence of crime but as the result of certain penalties," 11 and this may well be true of certain offences even nowadays. It might be argued, for example, that the disgust felt by members of the public for homosexual acts, even when committed between adults in private, may, at least in part, be the consequence of the manner in which such conduct is treated by the law and, though to a diminishing extent, by the courts. The social stigma is said to be much weaker in the case of lesbians,12 and as the man in the street is hardly familiar with the scientific arguments which could be adduced to show that female homosexuality is in fact something essentially different from its male counterpart 13 we might have to conclude that the different reactions of public opinion are due to the difference in legislation rather than vice versa. 5. Clearly, this is not the place for a full discussion of the implications of the Wolfenden Report, nor does time permit any comprehensive treatment of the subject of sex offences in general, but a few references to the Report can hardly be avoided. Although writing only a few years after the trial of Oscar Wilde in 1895— his lectures were first delivered in 1898—or should we perhaps rather say " because" of this coincidence?—Dicey's book contains no single reference to that famous case or to the whole subject of homosexuality and sex offences. Indeed, the only reference to " sex " in the Index is to a footnote on " equality of sexes." In the words of Edward Carpenter, whose book on the subject had to remain unpublished because of the Oscar Wilcle case, " the Wilde 11 12 13

On this and on the whole subject, see Hermann Mannheim, The Penal Reform (1939), Chaps. IV and V. See the references in my Criminal Justice and Social Reconstruction note 3, and my paper in the Medical Press, No. 5652 (September 3, These arguments have recently been admirably discussed in a judgment of the Constitutional Court of Western Germany in January 1956.

268

Dilemma

of

(1946), p. 65, 1947), p. 211. very detailed Karlsruhe of

Criminal Law and Penology trial had done its work and silence must henceforth reign on the sex subject." 14 " The right of free speech . . . had utterly disappeared; it was impossible," wrote Frank Harris, " to say one word in Wilde's defence in the face of a public opinion which is apt to concentrate on symptoms and ignore causes." 15 There has been but little of this conspiracy of silence during and after the notorious trials of the year 1954. Mr. Peter Wildeblood was even allowed to appear as witness before the Wolfenden Committee after serving his prison sentence, and so far all appears to be well, but what about certain other aspects of the matter? More than forty years after the trial of Wilde an eminent High Court judge could still express the view, in the course of a debate in the House of Lords, that homosexual acts were " the result of wicked impulses, which . . . can be checked by advice and by resolution." 16 And today? There have been no changes in the law of homosexual offences since the Criminal Law Amendment Act, 1885, but there have been changes in the methods of punishment used by the courts. Without going into details, it can be said that in the course of the present century penalties for all sexual offences, including homosexual offences, have become more lenient. The percentage of sentences of imprisonment in its various forms (including penal servitude until 1948) imposed by courts of assizes and quarter sessions has fallen from 88-7 per cent, in the period 1909-13 to 66-4 per cent, in the period 1934-38 and to 47-2 per cent, in the period 1951-54, and the place of these penalties has to some extent been taken by probation, conditional discharge, and other measures. On the other hand, where imprisonment has actually been imposed, there has been a tendency in recent years, here as in the case of other offences, to use longer sentences.17 6. Have there been any changes in public opinion regarding homosexual offences? Immediately after the Montagu trial a noted medico-psychologist, Dr. Kenneth Soddy, in one of the best papers on the subject published in recent years, wrote in The 14 ls 18 17

Quoted from Max Hodann, History of Modern Morals (English translation by Stella Browne, London, 1937), p. 37. Hodann, p. 36. See also Peter Wildeblood, Against the Law (Penguin ed.), p. 11. Lord Atkin in the House of Lords on July 7, 1937 (Hansard, col. 145). Criminal Statistics England and Wales for the year 1956 (Cmnd. 286, 1957), p. xxiv.

269

Legal

Developments

Lancet18: " Though man is now, for the first time, capable of bringing scientific method to the study of his social institutions, the advances in sociology, anthropology and psychology during the last fifty years have not yet influenced public opinion, nor been incorporated into legislation. In the notorious Wilde trial of half a century ago, the topic was approached by the court, as it were, obliquely; but in the recent Montagu trial evidence was deliberately sought by the police by methods which have since been strongly criticised in the House of Lords. Comparison suggests retrogression rather than progress in the public attitude." Dr. Soddy goes on to criticise the way in which the subject had been debated in the House of Lords in 1954, concluding: " No medical peer contributed; and this perhaps reflects the fact that, though most of the scientific knowledge of the subject has been contributed by doctors, few members of the profession know much about it." What interests us here is mainly whether Dr. Soddy's charge is correct that the attitude of the public has stiffened rather than progressed in the sixty years since the Wilde trial. What kind of evidence have we got on this question? If we first consult the widely known book, Against the Law, by one of the recent victims, Peter Wildeblood, we might well get the impression that the attitude of the general public towards him was, with minor exceptions, quite benevolent and understanding.19 After discharge from Wormwood Scrubs Prison, when returning to his former district, Islington, he met nothing but kindness from ordinary people, and Lord Pakenham in his speech in the House of Lords has already quoted the equally tolerant words of a taxi driver.20 On the other hand, when " Mass-Observation " some ten years ago carried out their inquiry, which has been called the " Little Kinsey " or " a sort of Gallup on a sort of Kinsey," they found that, while people in this country were only too willing to discuss very delicate sexual matters in the street with complete strangers, questions about homosexuality had to be omitted from the street sample questionnaire because, among other reasons, of the " genuine disgust" aroused by references to this subject.21 Might the explanation of this apparent contradiction 18 The Lancet, September 11, 1954, p. 541. 1 9 Penguin ed., especially pp. 177-178. 20 Hansard, December 4, 1957, col. 742. 2 1 L. R. England, Public Opinion Quarterly, Vol. 13, No. 4 (1949), pp. 587 et sea., 599.

270

Criminal Law and

Penology

between Mr. Wildeblood's experiences and that of " MassObservation " perhaps be found in the simple fact that the man in the street is often bewildered and even terrified when confronted with some abstract problem, the full implications of which he can hardly be expected to grasp, but fairly open-minded in his personal dealings with an individual caught up in the meshes of that abstract problem? Public opinion is usually more influenced by practical cases than by theoretical argument. 7. With regard to the recommendation of the Wolfenden Committee that " homosexual behaviour between consenting adults in private be no longer an offence," 22 the Lord Chancellor stated in the House of Lords' debate of December 4, 1957: " There are cases . . . when it may well be the duty of the Government to lead rather than to follow public opinion, but in a matter of this kind the general sense of the community, particularly as expressed in statutes which have been left undisturbed for long periods, is an important feature; and the community is entided to its view as to what affects society as a whole. Her Majesty's Government do not think that the general sense of the community is with the Committee in this recommendation, and therefore they think that the problem requires further study and consideration." 23 This decision of the Government has been criticised in the Press as illogical because, it is argued, such Committees are appointed for the very reason that public opinion is " often ill-informed and heavily biased by natural repugnance and preconceived moral judgments " and that legal changes should therefore be based not on popular prejudices but on accurate information.24 This criticism is, of course, unjustified as far as it implies some sort of moral or at least " logical " duty on the part of a Government to implement Reports by Departmental Committees or Royal Commissions once they have been duly appointed. As has been pointed out by Sir Geoffrey Vickers,25 such Reports provide nothing but " the 22

23 24

25

Report of the Committee on Homosexual Offences and Prostitution (September 1957) (Cmnd. 247), p. 115. Lord Kilmuir, Hansard, December 4, 1957, col. 773. See now, also, the Home Secretary, Hansard, November 26, 1958, col. 370. Mr. J. W. Hall, The Times, December 14, 1957. See also Professor C. D. Darlington et al., The Times, December 18, 1957. The Listener, January 9, 1958, p. 49.

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Legal Developments considered views o£ a cross-section of thoughtful and informed people, together with the evidence on which they have reached their decision," and are not binding on the Government. In fact, one might add, the battlefield of modern social history in this country is strewn with the dead bodies of unimplemented Reports of this kind, and it may even be difficult to accept Dr. Barbara Wootton's claim that what has been said " between the covers of a bluebook can never again be quite as shocking as before they said it. Their proposals have taken the first step in the long road that leads from the outrageous to the commonplace." 36 Having been a member of several Commissions and Committees, Mrs. Wootton may perhaps be inclined to take a slightly too rosy view of the effect of bluebooks on public opinion. Usually, such Reports, far from being the first step, merely elaborate what had been stated before by a number of courageous individuals who had stirred influential circles of the public strongly enough to enforce the setting up of a Commission or Committee. Did not the idea of abolishing Capital Punishment remain for many years after 1930 just as shocking to many people as it had been before the Report of the Select Committee of 1930 recommended abolition for a trial period of five years? And have matters really much improved since the Report of the Royal Commission on the Press was published? 8. Coming to the Wolfenden Report itself and the role it has played, or failed to play, in influencing public opinion and legislation, I feel sincerely embarrassed at having to criticise a Report with whose principal recommendation I am so much in agreement. Its main weaknesses, it seems to me, are that it fails to provide a sufficiently strong philosophical, sociological and psychological basis for its arguments and that it employs an outmoded technique. Regarding technique, some of my criticisms are similar to those I made several years ago of the Report of the Royal Commission on Capital Punishment, 27 although the latter contained already a few 26

27

The Twentieth Century, January 1958, p. 6. See also The Times, January 21, 1958. British Journal of Delinquency, Vol. V (January 1954), pp. 168 et seq., subsequently reprinted in Group Problems in Crime and Punishment (London, Routledge and Kegan Paul, 1955), pp. 234 et seq. Some of my points have now been taken up by Mrs. Wootton (see note 26, above), and similar criticisms have been made by Mr. O. R. McGregor with regard to the Report of the Royal Commission on Marriage and Divorce, 1956; see his Divorce in England (London, Heinemann, 1957), esp. Chaps. V and VI, pp. 177-178.

272

Criminal Law and Penology improvements over its predecessors. T o put it very briefly, the Wolfenden Committee instigated no original research, as was done, for example, by the Royal Commission on the Press, nor is its Report popular enough to sway the public or scientific enough to satisfy the expert, which means that it falls between two stools. With regard to public opinion, it is stated in the Report that " we have not succeeded in discovering an unequivocal ' public opinion' and we have felt bound to try to reach conclusions for ourselves 28 . . Considering that the Government's refusal to implement the principal recommendation of the Report is based on the alleged state of public opinion, one is left wondering why the period of three years during which the Committee was at work could not have been used to do some opinion research. While this would certainly not have led to the discovery of an " unequivocal" state of public opinion, it might have helped to clarify some of the issues touched upon before. There are other, similarly unscientific statements in the Report, and phrases such as " w e are authoritatively informed " 28 or " we have found no convincing evidence " or " it has been suggested to u s " 3 0 often take the place of a description and evaluation of the available evidence. Perhaps even more serious, when discussing what is surely one of the most crucial aspects, not only of the problem of homosexuality, but also of the whole criminal law, the relation between the latter and religion and morals, the Report, while essentially giving the right answers,31 oversimplifies the issues and fails to provide the indispensable historical, philosophical and political background for them. From the very beginning the Committee anxiously evades a full discussion of these issues: " nor does our commission extend to assessing the teaching of theology, sociology or psychology on these matters, though in many points we have found their conclusions very relevant to our thinking. Further, we do not consider it to be within our province or competence to make a full examination of the moral, social, psychological and biological causes of homosexuality or prostitution or of the many theories advanced about these causes." 3 2 No official commission, no " terms of reference " will explicitly include such issues, but it has to be taken for granted Para. 16. 3» Para. 98. 3 2 Paras. 12 and 13.

29

28

31

273

Para. 57. Paras. 14 and 61.

18

Legal Developments that they will be adequately treated, and if the Committee—though headed by a former University Tutor in Philosophy—did not feel competent to deal with them, a suitably equipped University Department might have been willing to fill the gap. As a consequence of this negativistic attitude there is in the Report no discussion of the long history of philosophical and legal thought on the relation between law, religion and morality, and we cannot be too much surprised that through the medium of the Press, of public gatherings, and in many other ways, the impression seems to have been created in the mind of the public that the Committee had produced an entirely new, and to many people rightly offensive, theory of their own that the criminal law had nothing whatsoever to do with religion and morality. The Report, it is true, rejects this theory, but without much explanation and indeed not without ambiguity. In the field of sex offences, we are told, it is the function of the law " t o preserve public order and decency, to protect the citizen from what is offensive or injurious and to provide sufficient safeguards against exploitation and corruption of others . . . " (para. 13). This may sound all right, but unless we are explicitly told what the Report means by " offensive or injurious," it might well be argued that many citizens regard homosexuality as " offensive and injurious " in any circumstances, which would lead straight to a conclusion entirely contrary to that of the Report. Is this really, as Dr. Eustace Chesser seems to think, " a model of clarity"? 3 3 Surely, a splendid opportunity has been missed to drive home some of the lessons of hundreds of years of legal and philosophical thinking and of practical experience. I am not naive enough to believe that a detailed discussion of these lessons would have, straightaway and undiluted, reached the man in the street or have been fully understood by him, but some of the essential points would have filtered through via the usual media of mass communication. At a time when the literature on criminal law is, with a few honourable exceptions, so much lacking in philosophical contents and penetration,34 when all we are usually 33 34

Eustace Chesser, Live and Let Live (London, Heinemann, 1958), p. 116. On this, see now Thomas Wiirtenberger, Die geistige Situation der deutschen Strafrechtsurissenschaft (Freiburger Rechts- und Staatswissenschaftliche Abhandlungen Band 7, Verlag C. F . Mulfer, Karlsruhe, 1957), pp. 17 et seq. What he writes about the present German literature on criminal law applies to some other countries as well.

274

Criminal Law and Penology given are a few commonplaces on the meaning of crime and the objects of punishment, it is not enough to proclaim either that law and morality should be the same or that they should be kept miles apart—the full implications of these two opposing viewpoints and the necessary qualifications should have been clearly stated if we aim at having an educated public opinion. As Ginsberg has said, " no brief formula can describe the very complicated relations between the different types of social norms." 35 In other words, here as so often, the real difficulties lie in " the areas in between." These are matters deeply affecting not merely the criminal law of homosexuality in this country, but on a wider view the lives of many people nearly everywhere. Issues such as Apartheid, artificial insemination, suicide, or those raised by the present Bellandi case in Italy are crying out for a solution, which will never be found unless we are prepared to argue the fundamental questions of law, religion and morality. To advocate the repeal of the Apartheid legislation because it offends our moral and religious sentiments and, on the other side, to support the principal recommendation of the Wolfenden Committee in spite of its being offensive to many people's moral and religious feelings; to reject the views of the Church on gambling, or on suicide or on the legality of civil marriage, and accept them on some other matters may be perfecdy good sense; it may be utterly bewildering, however, to the man in the street unless the complete picture is presented to him. Of the arguments used in Mr. James Adair's " Reservation " to the Wolfenden Report the one relating to incest seems to have made some impression on the public mind.36 This might have been anticipated by the majority of the Committee and the argument could have been easily disposed of in advance by showing the essential differences between incest and homosexuality in practically all relevant points. It might be of considerable interest to our present subject to examine whether the Punishment of Incest Act, 1908, which for the first time made incest an offence in English Criminal Law, as distinct from ecclesiastical law, was meant to open a new chapter in English criminal legislation. 9. Arguments based upon the alleged state of public opinion 35 36

Morris Ginsberg, Reason and Unreason in Society (Longmans, London, 1947), p. 17. Wolfenden Report, p. 121.

275

Legal Developments should not be used indiscriminately in our field. There is a difference, for example, between public opinion wanting a certain change and public opinion opposing one. As Dicey said, " when we talk of legislative public opinion we should not forget that such opinion may bear a merely negative character, and operate not by making laws but by forbidding their enactment." 37 By and large, the impact of public opinion on law-making bodies has been stronger in a negative than in a positive direction. An interesting case in point is the abolition of corporal punishment by the Criminal Justice Act, 1948, which implemented the recommendations of the Departmental Committee of 1938.38 In spite of several attempts in both Houses of Parliament to reintroduce this antiquated penalty— attempts backed by a vote of the Magistrates' Association and many highly emotional letters in the Press—the supporters of flogging did not succeed,38 and it is important to note that a weighty argument against its revival was provided by a piece of statistical follow-up research undertaken by the Home Office on a sample of about 700 persons convicted of crimes of violence during the period 1931-40. 40 Here, the Government made use of the tool of statistical research to guide and educate public opinion by demonstrating that flogging had no stronger deterrent effect than long sentences of imprisonment. This victory does not necessarily mean, of course, that the issue has been decided once and for all. Every increase in crimes of violence leads to renewed agitation, and only recendy we have heard of a " petition bearing more than 87,000 signatures," appealing for more severe measures, including flogging.41 The popular outcry which, in the early decades of the present century, led to an extension of corporal punishment to procuration and living on the earnings of prostitution (Criminal Law Amendment Act, 1912), is, however, now exclusively limited to offences of violence against the person. It might be interesting to speculate what may be, in the long Op. at., p. 18. Report of the Departmental Committee on Corporal Punishment (March 1938, Cmd. 5684). 3 i See Hansard of March 21, 1950, cols. 310 et seq. (House of Lords) and of February 13, 1953, cols. 758 et seq. (House of Commons). See also Howard Journal, Vol. VIII, No. 4 (1953), p. 228. 4 0 Paper relating to the large number of crimes accompanied by violence occurring in large cities (Home Office, July 1951, London, H.M.S.O.). " The Times, November 27, 1957; also February 6, 1958.

38

276

Criminal Law and Penology run, the impact on public opinion of the late nineteenth-century Freudian discovery that the desire for the infliction of punishment, especially of physical pain, is often an expression of unconscious sadistic impulses and of the need for a scapegoat rather than of a rational interest in retribution or deterrence. This view had been put to the Committee on Corporal Punishment by an eminent psycho-analyst, but its Report merely points out that " psychoanalysis is a comparatively new method and we do not think that its development has yet reached the stage at which its hypotheses can safely be made the basis for a drastic and far-reaching reconstruction of the whole of our penal code." " As the further, rather odd, statement shows: " w e feel obliged to add that none of the witnesses who had had actual experience of supervising the administration of corporal punishment has ever observed any overt signs indicating that either the victim or the person administering the punishment was deriving from it any masochistic or sadistic satisfaction," the Committee's grasp of psycho-analytic teachings was not very deep. In the past twenty years, understanding of psychiatric and psycho-analytic issues has gready increased; nevertheless, Dr. Edward Glover sums up his criticisms of the Report of the Royal Commission on Capital Punishment in the words: " The argument of the Report demonstrates how impossible it is to be reasonable about an emotional issue without full knowledge of unconscious sources of bias." 43 10. One of the shortcomings which the Report of the Royal Commission on Capital Punishment, though otherwise much more substantial than the Wolfenden Report, shares with the latter is the tendency to take refuge behind what it proclaims to be public opinion, without making any attempt to find out what the state of public opinion really was on the various points at issue/1 Out of the many reflections to which recent developments in the fight for the abolition of capital punishment might well give rise, only one or two. can here be mentioned. First, historical developments in this country over the past century and a half have in some ways been similar to those in Germany: untiring attempts by penal 42 43 44

Report, p. 33. The British Journal of Delinquency, Vol. IV, No. 3 (January 1954), p. 167. See my Group Problems in Crime and Punishment, pp. 237-238.

277

Legal

Developments

reformers defeated by Governments and Parliaments using more or less identical arguments—in particular the public opinion argument—and similar techniques. 45 It is interesting to note, however, that in Germany many lawyers, including high-ranking judges, were active abolitionists. Bismarck even accused them of being the driving force behind the hated movement and Government spokesmen at the time did their best to show that, on this subject, the lawyers were not representative of public opinion. 46 In this country, the proportion of abolitionists among lawyers and judges has been much smaller. Nearly one hundred years ago, an eminent German professor of criminal law, Albert Berner, in a book advocating abolition, warned the legislator not to listen Pilatus-like to the vox populi crying " c r u c i f i g e , " and others pointed out that after abolition public opinion would soon change. 47 When abolition eventually became reality in 1950, it came as a surprise to many old protagonists of the movement, such as the former Socialist Reichsminister of Justice Professor Gustav Radbruch, who thought that popular opinion was not in favour of it and insisted that future attempts to reintroduce the death penalty should be forestalled by effective measures of public education. By and large, it is probably true to say, however, that abolition went through in Germany mainly because of the memories of the Hitler regime. 48 The second point I wish to make refers to the role played in the period immediately before the passing of the Homicide Act, 1957, by that newly formed body called " T h e National Campaign for the Abolition of Capital Punishment." It would probably be too early at present to write a history of this period which would correctly assess the effect of that campaign, how far it was responsible for the compromise solution in the Homicide Act and what might have been the position now without the efforts of that very active organisation and, for that matter, of other, older, bodies such as the Howard League for Penal Reform. Such an evaluation of cause and effect will, perhaps, never be possible with the means at our disposal, nor should we forget that the doctrine of multiple See the details for Germany in Bernhard Diising, Die Geschichtc der Abschaffung Deutschland (Bollwerk-Verlag Offenbachder Todesstrafe in der Sundesrepubli\ Mainz, 1952).

345

Trends

of Social

Policy

p. 21) refers to the need for a change of outlook on the part of employers and of girls themselves. Since, says the White Paper, " ambition to marry will very rightly continue to be uppermost in the thoughts of girls, progress in recruiting more girls and women for courses in technical colleges depends on their recognition that further education will help and not hinder the prospects of a happy married life." And the Carr Committee notes (pp. cit., p. 28) that " for women, marriage no longer means the immediate termination of employment. There is also an increasing tendency for women to go back to work, on either a full- or part-time basis, after they have brought up a family." But more than exhortation is needed. Opportunities, like justice, must be shown to exist. At present, career possibilities are far more limited for women than for men, and society makes litde provision either for the continued employment of married women with young children or, if re-entry to employment is postponed until the children are less dependent, for the difficulties of bridging the gap in knowledge and experience resulting from the break in employment. Yet these questions must be considered, for to make more effective use of women as members of the labour force means to employ married women—especially as the age at marriage has been and is falling. Associated with the decline in family size and with the continuation of full employment, there has been a very considerable increase since the 1930s in the proportions of married women at work. But the range of employment is still limited and it will require a substantial expansion of career opportunities for women to convince them that employment can Be regarded from a long-term point of view and not primarily as a fill-in between leaving school and marrying or as a means of achieving a somewhat higher level of living once the children are at school.

346

SOCIAL

SECURITY B . ABEL-SMITH

THIS is an appropriate time to review the influence of public opinion upon social security legislation. Now, as at the beginning of the century, major changes in the responsibility of government are under consideration, and the issues which are being debated today are strikingly similar to those debated half a century ago. The study of the forces which shaped earlier laws can contribute to the design of future laws. During the last fifty-eight years, the provision of income in adversity and old age has become accepted as a proper responsibility of the State. In 1900 the role of government was small. It paid pensions to about 210,000 of its own employees at a cost of about £10 million,1 but for the rest of the population the only form of aid provided outside the workhouse was outdoor relief, which cost for young and old together a total of about £3 million.2 Now we have a national system of " insurance," which provides limited benefits to some without any examination of their incomes, and to others subject to a means test, operating only on earned income, known as the " earning rule." In addition we have a well-intentioned scheme of National Assistance giving somewhat larger sums on examination of both earned and unearned income. In the private sector, noticeable progress towards collective action has also been made. Spontaneous provision which often involved the individual in heavy administrative costs 3 has largely been replaced by employer-imposed schemes involving the State in costly tax concessions.4 At the beginning of the century the major sources 1 2 3

4

Parliamentary Papers, 1907, Vol. LXVIII, Old Age Pensions, Tables and Preliminary Memorandum, pp. 23-24. Social Insurance and Allied Services (Beveridge Report), Cmd. 6404, 1942, p. 214. Over 50 per cent, of the contribution income of friendly societies was spent on administration. See A. Wilson and G. S. Mackay, Old Age Pensions (Oxford, 1941), p. 17. According to the Phillips Committee the cost of tax concessions was £100 million. Since then, owing to the Finance Act (1956) and other extensions of such schemes, the cost may be higher. See Report of the Committee on the Economic and Financial Problems of the Provision for Old Age (Phillips Report), Cmd. 9333, 1954, p. 62.

347

Trends of Social

Policy

of support outside the family were the friendly society and the friendless workhouse. Now the worker determines, often unconsciously, by his choice of employer whether his national insurance pension will be supplemented by employers' pension or national assistance. Thus, today, collective insurance operated by the State and by the employer are the typical forms of provision for sickness and old age. But while there are these important differences between the position in 1900 and the position today, there are some interesting similarities. At the beginning of the century about a quarter of the population over sixty-five were receiving financial aid from a State service after scrutiny of their resources." The same is true today. In addition, it appears from the last specific Government inquiry into the incomes of the aged—I refer to the inquiry into the incomes of over 12,000 old people conducted by the Government in 1899—that roughly another quarter could have got such aid if they had applied for it and if account was taken only of their own resources.® Much the same was found in the only inquiry conducted into this subject in recent years—a private study of one East London borough. 7 Such statistical similarities between the position today and fifty years ago conceal the dramatic changes in public opinion which have occurred in this century. The attitude of government agencies providing money after inquiry into need, if not the attitude of applicants for such aid, has been revolutionised. Influential opinion now accepts the operation of what is called " national insurance " by the State and believes that those who are impoverished—whatever the cause—have a right to limited State aid. It is on this major change in public opinion that I want to concentrate in the first half of this lecture. What were the forces that led to intervention by Government? Why were the first provisions for pensions on a non-contributory basis, while the first provisions for sickness and unemployment were on a contributory basis? Why was social insurance acceptable to so many different sections of opinion? In the second half of this lecture I deal with 5 6 7

Wilson and Mackay, p. 30. Parliamentary Papers, 1900, Vol. X, Report of the Departmental Committee the Aged Deserving Poor, Appendix II, p. 11. P. Townsend, The Family Lije of Old People (London, 1957), p. 164.

348

on

Social

Security

the extent of that intervention as indicated by the level of insurance benefits and with the distribution of costs between the contributor and the Exchequer. These have become the major subjects of controversy in recent years. T o cover these large subjects at any depth it has been necessary to confine my attention to the major contingencies of sickness, unemployment and old age, and omit all mention of family allowances, industrial injuries and other benefits. First let me sketch the background of provision outside the family for the three contingencies with which I want to deal. There had grown up by the end of the nineteenth century an extensive network of private social security. The healthier and more regularly employed members of the working classes banded together to preserve their earning power and to protect themselves and their neighbours against the major risks of working life. The gross membership of friendly societies was fourteen million,8 and their major role was to provide for sickness; seven million persons were insured against this risk.® However, many of the societies were financially unstable, depending upon lapsed policies and healthy young new entrants for their continued survival.10 Unemployment benefit was operated by trade unions and covered about M million workers. 11 The field of funeral insurance was mainly covered by the profit-making industrial insurance companies with thirty million current policies.12 Though both the friendly societies and the insurance companies had offered pensions for old age, little advantage had been taken of these opportunities. The poverty caused by sickness and unemployment affected far more people than that caused by old age. Millions of people lived in daily dread of these adversities. At a time when the concept of retirement was virtually unknown to working-class people and when survival to old age seemed rather a remote possibility, it is not surprising that hardly any provision was made for it. Moreover, about a third of the existing aged were wholly supported by their families.13 8

Parliamentary Papers, 1907, Vol. LXVIII, Old Age Pensions, Tables with Pre9 liminary Memorandum, pp. 53-54. H.C.Deb., May 4, 1911, cols. 609-610. 10 Parliamentary Papers, 1887, Vol. LXVIII, Report from the Select Committee on National Provident Insurance, pp. vi-vii. 11 H.C.Deb., May 4, 1911, col. 611. 1 2 Ibid., col. 611. 13 Parliamentary Papers, 1900, Vol. X, Report of the Departmental Committee on the Aged Deserving Poor, Appendix II, p. 11.

349

Trends of Social Policy The rights accumulated in " thrift agencies" of all kinds numbered over thirty-one million though a substantially smaller number of persons held these rights. The capital involved amounted to over £450 million. There were nearly 50,000 separate institutions—friendly societies, savings banks and other benefit agencies.14 As I have mentioned earlier, the major motive force was the desire for mutual aid among the working classes—to help other working people in their current troubles in the same way as you would expect them to help you. But middle-class observers interpreted these developments as forms of " thrift," by which was often meant the personal accumulation of wealth. They believed the working classes were engaged in saving in the same sense as themselves—that they were ploughing back their surplus incomes to advance their own personal prosperity and thereby the prosperity of the nation at large. Thus all this working-class " self-help" was elevated to a position of singular moral stature in the eyes of influential opinion. The strong support of middle-class opinion for the " vested interests" 15 in private thrift and the political power of their officials as a pressure g r o u p " delayed State intervention and reinforced middle-class attitudes towards the poor law. As opportunities for thrift abounded and were used by the prudent and virtuous members of the working classes, it was held that those who fell as a charge upon the ratepayers deserved to be deprived of citizenship, and humiliated by searching inquiries and workhouse tests. Paupers were regarded as " useless and costly inefficients," 17 being righteously punished by God and the Queen for refusing to work, for indulging in the demon drink and for contracting diseases which could neither be mentioned in decent society nor treated in the voluntary hospitals. As the Majority Report on the poor laws remarked in 1909, " they have sunk below the civilisation and aspirations of [our] subject races abroad." 18 In the eighties and nineties this complacent view of the poor had been challenged by empirical research. Parliament prodded I* H.C.Deb., June 15, 1908, cols. 595-596. 1 5 Parliamentary Papers, 1887, Vol. IX, Report of the Select Committee on National Provident Insurance, p. iv. 1 6 See infra, pp. 353-355. 1 7 Parliamentary Papers, 1909, Vol. XXXVII, Report of the Royal Commission on the Poor Laws (Cd. 4499), p. 644. 18 Ibid., p. 644. 350

Social

Security

the Local Government Board to improve its statistics and produce a bulky series of special investigations. Charles Booth and later Seebohm Rowntree undertook private inquiries. And as the mass of evidence was assembled it became clear that persons existed in generous numbers who had attempted to do what the middle classes prescribed for them and yet became pauperised by circumstances which they could not be expected to control. There were deserving poor. Thirty per cent, of pauperism was due to sickness.19 A quarter of the population over the age of sixty-five were paupers and over half died in the workhouses. Many regular subscribers to friendly societies ended their lives in this way. These facts were brought to public attention by the numerous official committees and commissions that reported towards the end of the nineteenth century. It is unlikely that these facts by themselves would have been sufficient to create such a major breach of laissez faire as was involved in the legislation of 1908 and 1911. There were many other forces at work which have been analysed by Dicey and other writers. 2 ' The old dogmas of Malthus, Bentham and Darwin were being challenged by the new dogmas of the Birmingham radicals and of the Socialists, both Christian and secular. The most astute politicians could observe the new theories gaining currency in Fabian drawing-rooms and in the less conventional parts of the trade union movement. The working classes were enfranchised and able not only to applaud but also to elect the politicians who seemed to speak the new jargon. 21 Unless the attempt was made to lighten the load of the poor, the poor might take violent steps to lighten the load of the rich. Aid had to be given to the deserving poor. This was clear by the end of the nineteenth century. But what form should it take? No longer was there support from the administrators for an extension of institutional care. At last it had been recognised that cash aid given in the home was cheaper per applicant than the less eligible maintenance in kind which was provided in the workhouse. The present unholy alliance between those who seek to 19 H.C.Deb., May 4, 1911, col. 609. See, particularly, K. de Schweinitz, England's Road to Social Security (Philadelphia, 1943), Chap. XVI. 21 See the speeches o£ Lloyd George and Winston Churchill in 1906, quoted in de Schweinitz, op. cit., pp. 199-201.

20

351

Trends of Social Policy meet the preference of the recipient and those who seek to minimise the cost to the public was formed early in the century to demand domiciliary aid. But in what form should this aid be given? Who should administer it? Who should pay for it? The answers to these questions were derived partly from logic, partly from the desire to meet the prejudices of middle-class opinion, and partly from the need to satisfy or circumvent the organised pressure groups. I lay stress here on the role of the pressure groups, as this aspect has received inadequate attention in the literature. Dicey, himself, was charmingly innocent of the cruder political processes. There Were some good logical reasons why pensions had to start on a non-contributory basis,22 while sickness and unemployment took a contributory form. In 1911 only about 7 per cent.23 of the population was over the present pensionable ages and a higher proportion of the aged worked in their late sixties and seventies than is at present the case.24 Contributions for such a remote contingency would not have been popular and there seemed to be a strong case in equity for pensions to be provided subject to a means test on earned income. And, secondly, the majority of those who did survive were women and the proportion not only of married women but also of single women going out to work was much smaller than it is today. Few women could be expected to pay contributions to an insurance scheme. Sickness and unemployment, on the other hand, were more vivid risks in the eyes of working people, and weekly contributions to an insurance scheme offered a chance of qualifying for sickness and unemployment benefits within as short a period as a year. The qualifying period would have to be much longer for pensions and those already over pensionable age could never receive any benefit. If there was to be any quick relief for the deserving aged it had to take the shape of an extended form of outdoor relief. Moreover, there were three hundred years of history to hallow such a measure. Such was the logic of the first twentieth-century statute in the field of social security—the Old Age Pensions Act of 1908. But this solution could not be adopted for every type of need for 2 2 H.C.Deb., Vol. 190, July 15, 1909, cols. 567-569. Sixty-five for men and sixty for women. Report of the Committee on the Economic and Financial Problems of the Provision jor Old Age, Cmd. 9333, p. 16. " Ibid., p. 24.

23

352

Social

Security

four reasons. First, the cost falling on the general taxpayer could become greater than a Parliament imbued with Gladstonian principles of finance would countenance. Lloyd George learnt this lesson when he introduced the Old Age Pensions Bill at a cost of £8}4 million and had to beat off amendments which in total would have cost £62 million. 25 This was one reason why he was reluctant to continue the development of social security on a non-contributory basis. Secondly, progress on the outdoor relief lines could be shown to be unfair; those who provided for themselves had to subsidise those who did not. Thirdly, such a system would be condemned as a discouragement to thrift. W h y provide for yourself if the State will look after you? Fourthly, and most important of all, any such development would be vigorously opposed by the politically powerful private " t h r i f t " agencies. 26 Indeed, the vested interests with their strong lobby not only delayed State intervention in the field of social security but strongly influenced its form. At first sight it would seem that no progress could be made at all as both contributions and benefits could be held to damage thrift. Thus, any contribution to a State scheme of social insurance would make it harder for working people to contribute to a friendly society or industrial insurance company. And any allowance given by a State scheme, whether subject to a means test or not, would make private thrift less necessary. How could State interference fail to damage what Lloyd George called in the House of Commons, if not elsewhere, the " very wellorganised, well-managed, well-conducted benefit societies " 27 and the " magnificent machinery" 2 8 of the industrial insurance societies? Lloyd George skilfully by-passed these obstacles. The scheme for old age had to be non-contributory because any new contribution that was levied would damage the friendly societies. But without contributions the whole cost had to be kept low as it would all have to be paid by the Exchequer. For this reason, among H. Bunbury, Lloyd George's Ambulance Wagon (London, 1957), p. 71. Ascjuith had been hesitant in approving even the £8'/i million for old age pensions. See B. Webb, Our Partnership (New York, 1948), p. 379. See, for example, H.C.Deb., June 15, 1908, col. 595, and ibid., May 4, 1911, col. 670. 2 7 The phrase used by Lloyd George, H.C.Deb., May 4, 1911, cols. 631-632. 28 Lloyd George, H.C.Deb., May 29, 1911, col. 776. He had previously planned to keep them out of the Act. 25

353 G.T.T.

23

Trends of Social Policy others, there had to be a means test. But it could still be argued that a means test would discourage thrift. The brilliant stroke was to include, among the many moral and economic conditions which were used to identify the deserving aged, privileges for members of friendly societies. Providing other conditions were satisfied, ten years' paid-up membership would guarantee an old age pension. Thus it could be argued that the Act promoted not only thrift but also the interests of the friendly societies.28 While old age pensions had to be non-contributory because the friendly societies were not in the field, sickness benefit had to be contributory because the friendly societies were strongly in the field. It would have been political suicide to attempt to take over their activities. The only solution was to allow them to administer the scheme. They would hardly object to the compulsory powers of the State being used to increase their membership, and the employment of these virtue symbols of the individualist society as the tools of collectivism clouded the philosophical issue which was really at stake. If the good man joined a friendly society and the bad man became a pauper, compulsory membership of friendly societies was promoting virtue and self-reliance. Only the sternest Liberals were able to resist the temptation to make men good by Act of Parliament. The friendly societies were not the only vested interest that was appeased by allowing it to administer national insurance. Each of the three major political parties had its pressure group and each got a share of the spoils, thus enabling the Bill to go through eventually with the smug unanimity of the party caucuses. While the friendly societies held a powerful position in the Liberal camp, the insurance industry divided its loyalties between the two principal political parties.30 The industrial insurance companies saw early on the possibilities of extending their main activity, the finance of death, by claiming a share of the finance of sickness. Their representatives called weekly at eleven million doors and their demands had to be granted lest they should whisper political slanders in 29 H.C.Deb., July 9, 1908, col. 112. 3 0 " T h e Directors of these vast organisations very generally were members of the Liberal P a r t y " (Bunbury, op. at., p. 78); Kingsley Wood, on the other hand, was a Conservative (ibid., p. 96).

354

Social Security their clients' ears. 31

The trade unions also had irons in the fire.

Their friendly society activities had helped them to gain membership, legal status and social esteem, and a loss of these activities would have damaged their strike funds.

Thus we find a section

of the Labour Party supporting contributory health insurance in 1911 while the party had been wholly opposed to contributory pensions only three years earlier. 32 Thus the introduction of social insurance in this form was necessary to satisfy the vested interests.

It also served to make the

introduction of State aid without any test of means acceptable to public opinion.

As Beatrice Webb shrewdly remarked, "public

opinion has got firmly into its silly head that insurance has some mystical moral quality which even covers the heinous sin of expenditure of public funds."

The majority report on the Poor

33

Laws clearly indicated this by the muddy passage in which it blessed insurance as a form of saving. 34

In addition, the word insurance

was popular with the Conservative section of the community because it was " a method of raising revenue which has saved the pockets of all other persons."

35

Balfour thought it an excellent

idea to " make the wage-earners pay."

38

According to Mr. Booth the collecting agent was ' ' the only man to call at every house with the wholesome message of t h r i f t " (H.C.Deb., May 25, 1911, col. 492). The Insurance Bill had left him " quaking with fear for his own bread and cheese." Lloyd George was most conciliatory. " W e do not propose to interfere in the slightest degree with their present business, as death benefits do not come in. They will also benefit incidentally from the improved conditions of health, which will also be the result of the preventive part of this measure. They will also benefit by the release of the sum of money which is now paid by six million people in this country for the same kind of insurance as we are providing here." (H.C.Deb., May 29, 1911, col. 775.) 3 2 In the debate of 1908 Mr. Snowden opposed contributory pensions as old age pensions should be " a means of equalling the distribution of wealth of the country" (H.C.Deb., July 9, 1908, col. 150). In the debate of 1911, Ramsay Macdonald said: " I am in favour of insurance and not of free g i f t " (ibid., May 29, 1911, col. 725). 3 3 Webb, op. cit., p. 470. 3 4 "Whatever be the risk insured against, whether it be sickness, accident, old age or unemployment, the possibility of such insurance depends on the existence of savings whether they be in private or collective hands, or what otherwise might be the savings of its citizens. Insurance, in short, is only a method for the utilisation of those savings " (p. 628). 3 5 Webb, op. cit., p. 474. 36 Ibid., p. 477. In the debate of 1908, Masterman accused the supporters of contributory pensions of trying to absolve "their class" from the need to pay for pensions. (See H.C.Deb., July 9, 1908, col. 149.) "Compulsory thrift," he said, " i s not thrift any more than compulsory religion is religion." (See H.C.Deb., July 9, 1908, col. 142.) Three years later, however, he remarked to Lansbury " w e have spiked your guns." (See Webb, op. cit., p. 475.) 31

355

Trends of Social Policy Thus Britain mounted the road of social security. The popular will had dictated the end; and the political process had produced an acceptable means. In the case of the deserving aged, the solution had been simple, to give a minimum income to both men and women of 5s. a week on a test of means 37 —the equivalent of the current level of outdoor relief. For the sick and unemployed, on the other hand, the individualistic weapon of insurance had been adapted. But insurance as currently practised was shaped to limit the risks that fell upon the insurance carriers rather than to fulfil the needs of social policy. Thus there were waiting days and limited benefit periods. Contributions had still to be paid even while benefit was being received.38 No provision was made for the size of the family the benefit had to support. There was thus a grim contradiction between the problem about which action was demanded and the method which both the current philosophy and the vested interests had evolved to tackle it. The story of national insurance in this country is the story of the conflict between private insurance principles and the needs of the beneficiaries.39 Benefits periods have been extended and contribution conditions have been amended, though not always in the direction of greater leniency.40 And while the concept of the family has been constandy narrowed in assistance services, the concept of the family has been widened in insurance services to include wives and children for all benefits. In addition, the opportunity to adjust benefits to risk by the choice of approved society 41 has been removed with the bold 4 2 abolition of approved societies by the 1946 National Insurance Act. A fascinating story In the first draft of the Bill two persons living together were given 7s. 6d. In the debate it was pointed out that this would involve anomalies, evasions and administrative difficulties. (See H.C.Deb., June 24, 1908, cols. 1786-1787.) The solution of providing a married couple with a lower benefit than two single people was not adopted until 1946. 38 H.C.Deb., May 4, 1911, col. 620. 3 9 Beveridge Report, p. 13. 4 0 Compare, for example, the conditions upon which old age pensions were granted before 1946, with the provisions for retirement pensions under the 1946 National Insurance Act. 4 1 Some approved societies selected the good lives and gave generous benefits, and others were left with the bad lives or greatest needs but could only pay out the minimum that the law required. For the evidence on these questions, see H. Levy, National Health Insurance (Cambridge, 1945), and the Beveridge Report, pp. 23-35. 4 2 In 1942 Lord Greene wrote to warn Lord Beveridge that " t h e y will fight like cats." W. Beveridge, Power and Influence (London, 1953), p. 308. 37

356

Social Security could be told about how public opinion influenced all these aspects. But here there is only time to pursue one broad question. The subject which I have selected is the level of benefits and the distribution of the costs of social security between the contributors and the Exchequer. None of the Liberal reforms before the First World War aimed at providing pensions or benefits sufficient for full maintenance. The old age pension of 5s. was not intended to provide " a complete livelihood for those otherwise without resources." 43 Lloyd George only claimed that his sickness benefits were " reasonably adequate," 44 while Winston Churchill described his unemployment benefits as " very exiguous " and " narrowly cut." 45 The insurance benefits were regarded as " aids to thrift." It was not intended to solve the problems of the deserving poor, merely to contribute towards a solution. This remained Government policy in the inter-war period,48 although unemployment benefit and sickness benefit (for a single person) provided a higher standard of living before the war than they ever have since. One important step towards adapting insurance for needs was taken by the development of provisions for wives and children in unemployment benefit soon after the war. Dependants' benefits arose out of anomalies created by giving a special " dole" to demobilised soldiers and " civilian workers thrown out of work through the change over from war production to peace production." 47 Logically, the benefit for the demobilised soldier was based on army terms and included benefit for the soldier's family.48 This was extended to civilians. But even if there had not been 43 44 45 46

47 48

Parliamentary Papers, 1919, Vol. XXVII, Report of the Departmental Committee on Old Age Pensions, Cmd. 410, p. 8. Nation (London, July 1, 1911), Vol. IX, p. 491. H.C.Deb., May 25, 1911, col. 502. For the evidence on unemployment, see the summary given in Parliamentary Papers, 1932, Vol. XII, Final Report of the Royal Commission on Unemployment Insurance (Cmd. 4185), para. 32. The evidence on pensions and sickness benefits is summarised in H. F. Hohman, British Social Insurance and Minimum Wage (New York, 1933), pp. 38-63, 166 and 80. F . Tillyard, Unemployment Insurance in Great Britain 1911-48 (London, 1949), p. 38. Benefits for wife and children were also given to the civilians who amounted to over 90 per cent, of the recipients in February 1919. This precedent led to dependant benefits being included in employment benefits although it was thought ' ' out of place'' and ' ' undesirable in a scheme of insurance for loss of wages." See Parliamentary Papers, 1919, Vol. X X X , Final Report of the Committee of Enquiry into the Scheme of Out-of-Wor¡( Donation, Cmd. 305, pp. 8-9.

357

Trends of Social Policy this precedent, it is possible that the brute fact of mass unemployment between the wars would have created an irresistible demand for benefits adjusted for family needs. There is little doubt that the unemployment of the twenties and thirties was a major force influencing public opinion in favour of providing benefits that met minimum needs.49 Involuntary unemployment was so clearly a national responsibility. In addition, the richer community of 1938 was more able to pay the cost than the poorer community of 1900. Moreover, the subsistence concept had by the thirties a venerable history in both Socialist and non-Socialist literature. As early as 1892, no less an authority than Alfred Marshall had argued that " doing the best [for the poor] would not be a very bad investment from a purely business point of view." 50 Three years later the Royal Commission on the Aged Poor recommended that relief should be " adequate to meet fully the extent of destitution." 5 1 And, of course, the Webbs produced in 1909 their eloquent plea for " an enforced minimum of civilised life." 5 2 Not until the Second World War did the concept of minimum needs gain for a time widespread public acceptance,53 when Lord Beveridge recommended that subsistence benefits should be introduced for the aged in the middle 1960s and for other recipients of insurance benefits in the middle 1940s. This involved a major extension in the responsibilities of the State. It also raised the crucial problem of defining subsistence—an aspect which received extremely little public discussion at the time. 54 For this task use was made of the questionable yardsticks developed in the social surveys which played such a prominent part in the research programmes of several universities between the wars.55 Two leading practitioners in poverty measurement were called in to aid Beveridge in developing his scales.56 Thus, as Townsend has summarised the See, for example, The Future of the Welfare State, Conservative Political Centre, 1958, p. 9. 5° A. Marshall, " T h e Poor Law Reform," Economic Journal (1892), Vol. II, p. 369. 5 1 Parliamentary Papers, 1895, Vol. XIV, Royal Commission on the Aged Poor, Report and Minutes of Evidence, Cd. 7684, p. lxxxiv. 52 Minority Report of the Royal Commission on the Poor Laws 1909, the phrase comes from Webb, op. cit., p. 452. 5 3 See, for example, J. Beveridge, Beveridge and his Plan (London, 1954). 5 4 See P. Townsend, " Measuring Poverty," The British Journal of Sociology (June 1954), Vol. V, No. 2. 5 5 Beveridge Report, pp. 76-80 5 6 Professor A. L. Bowley and Seebohm Rowntree. 49

358

Social

Security

position, " a standard applicable to 1899 and converted by means of a price index based on articles purchased in 1904 was taken to be the best method of measuring poverty." 67 On this measuring rod were planned the subsistence requirements of persons yet unborn. When the time came to implement the Beveridge Report, the politicians were cautious about committing themselves to the subsistence principle. The most that James Griffiths would say in 1946 was that " we have in this way endeavoured to give a broad subsistence basis to the leading rates" (of national insurance benefits). Public opinion, however, believed that the Government was committed. Since 1946, however, official thinking has turned unambiguously away from the subsistence principle. The Phillips Committee stated in 1954 that: " a contributory scheme cannot in our view be expected to provide a rate of benefit which would enable everybody, whatever their circumstances, to live without other resources." 58 And the Minister of Pensions and National Insurance abandoned the subsistence principle at the end of 1954.5® In practice, benefits have been far below the level believed by the National Assistance Board to be subsistence, and in general a much higher proportion of beneficiaries has been supplemented by assistance since the war than was supplemented by outdoor relief in the twenties.60 Before the war, when some benefits were higher, there was complaint that they were too low. Now that some benefits are lower, there are complaints that benefits are too high and the assumption is frequently made that social security has improved greatly since the war and the development of the " Welfare State." 61 57 58 59 60

61

P. Townsend, " Measuring Poverty," p. 131. Phillips Report, para. 212. Memorandum on the National Insurance Bill, 1954, Cmd. 9338. In the twenties supplementation by outdoor relief was between 3yi per cent, and 10 per cent, in the case of sickness benefit, less than l2'/2 per cent, in the case of unemployment benefit (1928-29) though it rose to 42 per cent, in 1931, and less than 9 per cent, in the case of old age pensions. Hohman, op. cit., pp. 49, 175— 176, 295-296.) Between 1952 and 1956, supplementation by National Assistance occurred in 13-16 per cent, of households receiving sickness benefit, 16-22 per cent, of households receiving unemployment benefit and 23-27 per cent, of households receiving retirement pensions. ( R e p o r t of the Minister of Pensions and National Insurance for the Year 19S6, Cmnd. 229, p. 34.) For example, in a leader headed "The Unemployed of 1958," The Times wrote: " . . . for them there is nothing like the hopelessness which was the lot

359

Trends oj Social Policy What have been the increases in what James Griffiths called the leading rates since Dicey wrote his second edition? In 1914 a single man got 5s. for pension, 7s. for unemployment and 10s. for sickness. By 1958 the basic pension for a single man had multiplied by ten, the unemployment benefit by about seven and the sickness benefit by five, but during the same period average male earnings had multiplied by six or seven and prices by about four. However, the cost of income security services has risen from £25 million in 1914-15 62 to £1,000 million in 1956.83 Who has paid the bill? Dicey was opposed to the developments in social security before the First World War, not only because they involved a further large breach in laissez-faire principles, but also because he foresaw a heavy burden on the Exchequer. " The National Insurance Act will," he wrote, " in the long run bring upon the State, that is upon the taxpayers, a far heavier responsibility than is anticipated by English electors." 64 He anticipated that there would be higher benefits increasingly financed from public funds. Has this prophecy proved correct? How has the cost been shared between the contributors and the Exchequer? The introduction of the concept of " insurance " to State provisions for adversity brought with it the implication that the income security services should be conducted on actuarial principles. If this course were adopted it would mean that the contributions should be based not on the current cost of the service but on some estimate of what the future cost of the service was going to be. And further, it implied that a fund should be built up of sufficient size to make it possible to pay off all the liabilities which had been undertaken even if no further contributions were received. This approach assumes that reasonably accurate estimates can be made of the future costs of social security; in practice it can be shown that the actuaries have not always been able to do so.65 It also assumes that

62 63 64 ,s

of the young unemployed in the days of the great depression. . . . The social security system helps to make the process of change and readjustment less painful." (March 10, 1958.) Beveridge Report, p. 214. National Income and Expenditure 1957. A. V. Dicey, Law and Public Opinion in the Nineteenth Century (London, 1914), p. xxxvii. Unemployment is clearly not an insurable risk. Assumptions about expected unemployment have varied between 4 per cent, and 14}4 per cent. At the time of the Beveridge Report, the actuary assumed per cent, unemployment (p. 180) which may be compared with the fairly continuous post-war experience

360

Social Security a fund of a government's own securities can protect a people from its own government. The whole issue of the rationale of funding and the application of actuarial principles to national insurance lies outside our present theme."* Its importance, in the context of public opinion, is that it represents one of the most convenient political myths of the twentieth century. Only after very long hesitation did Lloyd George decide, as Professor Titmuss quoted in his lecture a fortnight ago, " t o be virtuous " 67 and adopt actuarial principles in 1911. In 1925, when pensions were made contributory, the path of virtue was said to require that from 1956 the worker and his employer should pay the whole cost of pensions for new entrants to industry at the age of sixteen.68 The Exchequer should pay only for those who had not paid contributions in the past and those whose education was prolonged after the age of sixteen. By 1954, virtue demanded that entrants at the age of sixteen (and their employers) should pay 97 per cent.69 of the cost, not only of their own pensions but also of their own sickness, unemployment and other benefits; the State could only pay for those with inadequate contributions, and in particular for the middle classes who had only contributed for ten years. Last year virtue demanded that the joint contributions should pay for per cent.70 more than the cost of all national insurance benefits for the new entrant. All these changes have

66

67 68 69

70

of under 2 per cent. Assumptions about mortality have also been unfortunate. As was the practice in private life insurance, the actuary assumed no declines in mortality rates in the original estimates for the cost of pensions (see Parliamentary Papers, 1900, Vol. X , Report of the Departmental Committee on the Aged Deserving Poor, pp. v and vi, and Parliamentary Papers, 1907, Vol. LXVIII, Old Age Pensions, Tables Preliminary Memorandum, p. 11), when contributory pensions were introduced in 1925 (Parliamentary Papers, 1925, Vol. XXIII, Government Actuary's Report, Contributory Pensions Bill, 1925 (Cmd. 2406), p. 28, and in the Beveridge Report (p. 180)). The original estimates of the cost of pensions were only made for eleven years ahead. For a discussion of these issues, see R. M. Titmuss, B. Abel-Smith and P. Townsend, " A National Superannuation Scheme," Chap. II, published in National Superannuation (London, 1957). Bunbury, p. 127. Parliamentary Papers, 1924-25, Vol. XXIII, Government Actuary's Report on the Financial Provisions of the Contributory Pensions Bill, p. 9. The actuarial contribution for an employed person was 136-2d. The insured person paid 67-5d. and the employer 64-5d. (National Insurance Bill, 1954, Report by the Government Actuary on the Financial Provisions of the Bill, Cmd. 9332, p. 5). The actuarial contribution for an employed person was 168-6d. The insured person pays 88-5d. and the employer 84-5d. (National Insurance Bill, 1957, Report by the Government Actuary on the Financial Provisions of the Bill, Cmnd. 294, p. 6).

361

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Policy

been made on actuarial advice. The politician who shelters behind actuarial advice is as safe as the prophet who shelters behind divine inspiration. The power of the professional adviser as a force moulding public opinion could make a lecture in its own right. As a result, Dicey's fears have not materialised. The Exchequer has not been raided for national insurance. In total, the proportion of social security in the widest sense (including outdoor relief, assistance, family allowances and insurance benefits) paid for by contributions was 51 per cent, in 1921-22, 4 6 ^ per cent, in 1938-39 and 73 per cent, in 1956.71 While in 1925 it was envisaged that the Exchequer could afford to pay about £75 million towards health insurance cash benefits and pensions in the year 1956-57,72 in practice, when the year 1956 came, the total raised in contributions was sufficient to pay for all but £30 million of the cost of the wider range of insurance benefits.73 I need hardly mention that £75 million in 1925 prices is worth roughly £200 million in today's prices. In short, the Exchequer paid in 1956 a seventh of what was planned in 1925. In practice, the Exchequer, protected from the full brunt of public criticism by the prestige and mystique of the actuary, has taken advantage of the continuous rearrangements of National Insurance to reduce the proportion of the cost it has to pay. Dicey, unlike the politicians, failed to appreciate that National Insurance had not only introduced benefits, but had provided a valuable new system of taxation. The insurance analogy introduced as effective a rationale for regressive taxation in the twentieth century as mercantilism in the eighteenth. And the horse has been flogged to the limits of its acceptability and adverse economic consequences.74 Partly for this reason, and pardy to continue the process of financing the rising costs of social security by a system of taxation outside the Exchequer, both the major political parties are now contemplating replacing the flat rate contributions with proportional contributions. Differential contributions by themselves suggest differential benefits. But should social security be compulsory? If compulsory, 71 Bevcridge Report, p. 214, and National Income and Expenditure 1957. ™ Wilson and Mackay, pp. 130-131. 73 National Income ana Expenditure 1957, p. 35. Benefits (including industrial injuries) cost £672 and contributions raised £642 million. 74 In discouraging employment of part-time workers, particularly married women.

362

Social Security should it be nationalised? Can we rely on employers' insurance just as we relied on individual insurance fifty years ago? Should the State do no more than provide " an extended form of outdoor relief " ? The same questions are being asked today that were being asked at the beginning of the century. But just as the attempt to make individualism work was being challenged by the new principles of the Webb school, so the attempt to make employer collectivism work is being challenged by the new principles of the Titmuss school. A new enforced minimum of civilised life is being canvassed. And just as the friendly society approach was modified into National Insurance, so it is suggested that the industrial pension approach should be modified into National Superannuation. There is growing dissatisfaction with the concept and standards of subsistence developed decades ago, and growing support for judging minimum needs in terms of usual work income. While the Webbs were concerned to use social security to make the working classes less poor by singling them out for State grants, now it is planned to treat the working classes like the middle classes treat themselves. In one further respect there are striking similarities between 1958 and 1908. The vested interests are busily at work mobilising both public support with disingenuous propaganda and private support with veiled political threats. Once again the politicians are weighing the cost of alternative courses of action. And in the fullness of time, the legislators will act, compromising with those forces they dare not vanquish, subscribing to those dogmas they dare not challenge, but swept onward by the major currents of public opinion.

363

INDUSTRIAL RELATIONS B. C.

ROBERTS

IN mid-twentieth-century Britain industrial relations are less regulated by law than in any other country in the world. In his lecture on Labour, Professor Kahn-Freund described our system of industrial relations, as laissez-faire collectivism. He laid stress on the principle of industrial autonomy and the empirical character of the solutions which had been found by unions, employers, the Government and the courts for the problems that had been posed by the clash of opposing interests. Professor Kahn-Freund concluded his lecture with a comment which suggested that all that he had said was a prolegomenon to the question of whether laissezfaire collectivism is well adapted to meet the complex issues that are posed by the modern industrial environment. The question, in one form or another, has been at the heart of many of the issues that have been discussed in this series. It is of particular importance in the field of industrial relations, since trade unions now exercise such enormous influence, not only over the welfare of their members, but in relation to the public interest as a whole. Whilst I think that pragmatism is the chief characteristic of trade union behaviour it is, I think, necessary to point out, and I know that Professor Kahn-Freund would completely agree, that unions, and with them I would include employers, are also strongly influenced by ideological opinions. When confronted by any problem the policy of a trade union is determined by inclinations which often pull in different directions. There is generally more than one goal to be attained; more than one interest to be satisfied, and more than one method of achieving the chosen end. Employers are also pulled in different directions by similar conflicts between ideology and empiricism; they extol the virtues of competition, but, like the trade unions, they quickly sacrifice ideological notions when these conflict too harshly with their immediate interests. 364

Industrial

Relations

I stress this tug-of-war between opposite poles, since, as we shall see, it so obviously affects the behaviour of unions and employers. It also affects the views of the onlooker who tends to see the course of events and the evolution of opinion from one angle or the other. Dicey certainly saw the development of the law from one particular point of view; whether the angle of our vision has allowed us to see modern trends as clearly as he saw them fifty years ago will be a matter better judged by those who read this book at the end of this century. We can now see that when Dicey published the second edition of his lectures, in 1914, the essential features of the system of industrial relations, as we know it today, had been established. Trade unionism had already spread from the organisation of skilled workers to the organisation of the unskilled and clerical employees. The employers, in their turn, had responded to the challenge of trade unionism by establishing their own organisations. Collective bargaining was extending in scope from the district to the national agreement. The right of the trade union not only to seek a standard wage for a standard week, but to establish a code of workshop rules and to represent its members in cases of grievance and dispute was still often contested by employers as an infringement of the prerogative of management. This issue, in spite of the bitter conflict which occurred in the engineering industry in 1922, was settled in principle by the end of the First World War. Shop stewards, who had begun to make their appearance in the twenty years before 1914, had established their place in industry; a more difficult task, paradoxically, was to fit them into a structure of trade unionism which had, in effect, grown up outside industry. In 1914 there was no Ministry of Labour, but the Labour Department of the Board of Trade had been in existence since 1886. Its responsibilities were at first limited to collecting labour statistics; later its functions were extended to carrying out the conciliatory duties enjoined by the 1896 Conciliation Act, and to such activities as supervising the operations of the " Fair Wages Resolution." The outbreak of war in 1914 and the problems entailed by the need to recruit men for the services, to build up 365

Trends of Social Policy the munitions industries and to preserve peaceful industrial relations, eventually persuaded the Government to bow to the pressure of the trade unions and create a Ministry of Labour. Much of the work of the Ministry of Labour sprang from the legislation promoted by those arch-collectivists, Winston Churchill and Lloyd George. The Trade Boards Act of 1909 had established the principle of legally enforced minimum wages in industries which were designated as "sweated"; the Labour Exchanges Act of the same year provided a voluntary service to workpeople and employers seeking each other in the labour market. In each of these cases there were many trade unionists who had the same fear as Dicey, that the State might seek to exercise a degree of control over the freedom of the individual and the established rights of the unions that would prove onerous and objectionable.1 T o win their approval Winston Churchill had to demonstrate to the unions that the Labour Exchanges and Trade Boards would not be used to their disadvantage; he achieved this by appointing a large number of trade unionists to managerial posts in the Labour Exchanges and by establishing a trade union advisory committee. Care was taken to see that the Trade Boards, on which the workers were represented, did not usurp the functions of the unions. Today it is generally agreed that the close link established between the unions and the Trade Boards and their modern descendants, Wages Councils, has been the vital factor making for their success. The support given by the unions to Lloyd George's decision to introduce a system of health insurance in 1911, rather than to Mrs. Webb's State scheme financed out of the Exchequer, was based upon similar considerations of union self-interest. Because they had pioneered the provision of social security benefits, which had become a major feature of their activity, the unions were against the nationalisation of this asset. They preferred laissez-faire collectivism to State Socialism. In his criticism of the trend towards collectivism Dicey failed to see this crucial distinction, as several previous lecturers in this series have pointed out. Dicey assumed, as some modern economists have done, that the attempt to solve social problems by collective, rather than individual, means would inevitably lead to a total loss of liberty. 1

See my The Trades Union Congress,

1868-1921,

366

Chap. VI.

Industrial

Relations

Dicey might, however, be forgiven for failing to see that the ideologically motivated elements who had assumed vocal leadership of the trade unions in the turbulent period prior to the First World War, would be restrained by more deeply rooted factors. When the trade unions affiliated to the Labour Party agreed in 1918 to the adoption of Socialism as their official aim, he might well have found in this step confirmation of his fears. The support of the unions for the creation of a society in which the means of production, distribution and exchange were publicly owned was not, however, determined by a desire to advance the abstract interests of the State, but by a wish to promote the sectional interests of their members. Though the language they used was derived from Marx, the unions were mainly motivated by the simple want of a sympathetic government, and by the need for the maintenance of full employment, higher wages and better working conditions. Not unnaturally the trade unions saw as their principal enemy a Conservative Party which represented the establishment and sought to maintain an employer-dominated system of industrial relations. The power position of the employers was buttressed by a rival system of trade unionism that protected their interests by organising opposition to the demands of the unions, by private price-fixing arrangements and control of entry into the professions, and, where it could be achieved, into competitive business. The advance of trade unionism during the First World War and the ideas stimulated by the Russian revolution alarmed the employers and their political friends as much as they exhilarated the Labour movement. The Government responded to the pressure from below with a committee under the chairmanship of Mr. J. H . Whidey, which produced a notable series of reports containing proposals for the reform of industrial relations. The trade union militants scorned these attempts at amelioration and the scene was set in 1918 for a violent clash of social forces; but the more cautious and responsible elements on both sides recognised the danger that massive strikes might bring, and the ultimate conflict was for the time being avoided. The culmination of the ideological struggle came in 1926 when, as a result of stupidity and bungling on the part of all concerned, a General Strike 367

Trends of Social

Policy

was called by the T.U.C. in support of the miners. 2 In the event the strike was an extremely amateurish affair which was conducted with remarkable gentility, but it demonstrated unforgettably the tolerable limits of the right to strike in a democratic country. It finally killed the Utopian notion that Capitalism was in the last stage of decay and had only to be struck a hard blow to collapse completely. It was, in fact, the trade unions which suffered most, since they lost large numbers of members and their rights were limited to some extent by the 1927 Trade Disputes and Trade Unions Act. The strike frightened both sides of industry and led to discussions between a group of large-scale employers and members of the General Council of the T.U.C. The reports of the Mond-Turner discussions had no immediate practical application, but they foreshadowed the development of the system which was set up during the Second World War of national joint advisory councils to industry and to the Government. The ideological conflicts between unions and management were also damped by the crisis of 1931 and the long slump which followed, and industrial relations, as in previous periods of deep economic depression, were quiescent. The trade unions had recovered much of their lost membership when the Second World War broke out, and during the next six years they made spectacular progress in growth and prestige. The victory of the Labour Party ensured the consolidation of the wartime advances made by the unions; it also brought about substantial changes in the attitude of the Conservative Party to organised labour. Whereas before the war the Conservatives had sought to encourage and support the non-unionist workman, after their electoral defeat they changed their policy to an acceptance of trade unionism. Under the leadership of Lord Woolton and Mr. Butler they set up a trade union department at the Central Office, and they gave trade union representatives a special place in the Councils of the party. In spite, however, of acute difficulties which developed between the trade unions and the Labour Party between 1945 and 1951 there was no significant shift in the allegiance of the active members of the unions towards the Conservatives, though there was probably a considerable growth in rank-and-file support for the Conservative Party at the 1950, 1951 and 1955 elections. 2

W. H. Crook, The General Strike: Labour's Tragic Weapon (1931).

368

Industrial Relations Six years of Conservative government, a rapid increase in prosperity and a larger rise in real wages, between 1952 and 1957, than in any other quinquennium in this century, has, curiously, only served to stimulate a spectacular rise in trade union hostility towards the Conservatives. The long overdue determination of the Government to check inflation produced a reaction that was reminiscent of past waves of industrial unrest. It had about it an element of the irrational, a paradoxical determination to prove, in spite of experience, that laissez-faire collectivism would not work. The fear of the ideologically motivated leaders of the unions that they would lose their power and influence, unless they demonstrated their refusal to co-operate with a government which seemed to them to be anti-Labour, was matched only by the anger of the classes which, in principle, supported the Government, but refused to vote for it, as a demonstration of disgust at its failure to launch the counterrevolution which would restore their lost prestige and income superiority. Whatever may be thought about recent social progress, it could hardly be gainsaid that Britain is a far more egalitarian and democratic country than it was when Dicey was giving his lectures. If we look at industry, in particular, we find that it is much less autocratically governed; in most of the major firms workers are no longer looked upon as merely a commodity. They are treated as human beings whose dignity and welfare are important, both because this is morally right and because it is now widely recognised that this is the best way of obtaining more efficient teamwork. The vast improvement in industrial relations has been due, to no small extent, to those developments in collectivism which Dicey thought to be evil. On the face of it his criticism of collectivist trends proved to be unduly pessimistic, but it is apparent today that the growth in the power of trade unions and of management divorced from ownership has brought immense political and social problems. It is quite impossible for me to do more than touch upon a few of the major problems which are of crucial significance from the point of view of industrial relations. I shall, therefore, confine the rest of my remarks to a brief review of some of the more obvious effects of the growth of trade unionism, full employment, the development of new forms of industrial and social security and nationalisation. 369 G.T.T.

24

Trends of Social Policy Unlike some other countries there are, with one exception, no legal prohibitions in Britain against any category of employees joining trade unions.3 In law anyone is free to join or not to join a trade union; employers are equally free to make membership or non-membership of a trade union a condition of employment. In other words, trade union membership is determined by the laissezfaire collectivist principle of the right to organise, modified in certain instances by the voluntary imposition of closed-shop, or, more rarely, open-shop rules. Under these conditions trade unionism in Britain has spread throughout the spectrum of employment; all types of employees ranging from the unskilled labourer to the highly paid screen actor and industrial manager are now to be found in trade unions.4 There are, of course, many members of professions, such as doctors and university teachers, who belong to collective organisations which they prefer to call associations rather than trade unions. The name is different but the raison d'être of the B.M.A. or of the A.U.T. is fundamentally the same as that of the Boilermakers' Trade Society of Britain or the ToddyTappers' Union of Malaya. The greatest expansion of trade unionism in the past thirty years has been among the so-called white collar group of employees. The organisation of managerial grades has posed problems of loyalty and responsibility, but they have been, if not entirely overcome, mitigated by empiricism and good sense. In Sweden and Germany white collar unions are members of separate trade union centres, and in the United States foremen are discouraged from joining unions by the Taft-Hartley Act. The uninhibited legal right to organise has led to a prolific trade union birth rate; the death rate has also been spectacular; perhaps not as spectacular as Dicey might have desired, but sufficient to bring down the number of trade unions since the end of the First World War from 1,384 to 664. It is generally considered that, from the point of view of administrative efficiency, over six hundred trade unions are still too many, and the contrast with the sixteen organisations in Western Germany's reconstructed trade union movement is starding. Some of the blame for the multiplicity of trade unions in Britain is generally placed on the legal 3 The exception applies to members of the police under the 1919 Police Act. * See my Trade Union Government and Administration in Great Britain, Appx. 1.

370

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Relations

regulation of union amalgamations, which, in spite of an easement introduced during the last war, perhaps gives excessive protection to the sectional interest of members.5 But the most important factor is the tenacious desire for autonomy. However, in spite of difficulties of amalgamation the great majority of British trade unionists are to be found in less than twenty large-scale organisations each with more than 100,000 members. The size of trade unions and the distribution of members appears to be a function of immensely powerful social and economic forces; the pattern is log normal, that is to say, it follows a proportionate relationship that is similar to other forms of social organisation including that of industry itself." It may be doubted whether either law or opinion has- in fact been the influence on the size factor, but size has had an important influence on industrial relations.7 Nor has opinion succeeded in rationalising the union membership pattern. As unions have grown larger they have spread their scope of recruitment both vertically and horizontally; so that there are few instances of unions with boundaries which are coterminous with those of a single industry. It is not uncommon to find ten or a dozen unions with members in a large plant. The difficulties which this situation creates in the settlement of any problem which touches upon inter-union relations are quite considerable. It is widely recognised that the sprawling, untidy pattern of trade union organisation is a serious barrier to the streamlining of collective bargaining and is a severe handicap to the development of better industrial relations. Is this, then, a price that must inevitably be paid for the protection of the fundamental right of the individual to join a union of his own choice? It is probable that the courts would give an affirmative answer, since they have tended in recent cases to lean towards curbing the power of a union to limit the rights of members in the interest of the organisation. In one instance it was ruled that a union could not expel a member 5 6

7

See Trade Union Government and Administration in Great Britain, p. 26. See P. E. Hart and E. H. Phelps Brown, " T h e Sizes of Trade Unions: A Study in the Laws of Aggregation," The Economic Journal, March 1957. Acton Society Trust, Size and Morale.

371

Trends of Social Policy on the instructions of the Trades Union Congress Disputes Committee unless the expulsion was specifically permitted by rule.8 The majority of affiliated unions have now adopted a model rule empowering them to expel in order to comply with a decision of the T.U.C. Disputes Committee. But, as Professor Dennis Lloyd showed, the courts will develop, wherever they can, legal doctrine to protect the interest of the member against that of the organisation. In so far as public policy has been expressed through the Ministry of Labour and other Government Departments, it has been on the side of union consolidation rather than on the side of individual freedom. During the period in which the Conditions of Employment and National Arbitration Order 1305 was operative, the Ministry of Labour, probably illegally, refused to accept the report of a dispute from an " unofficial" body; this principle has now been written into Order 1376, under which the Minister may only accept a report of a dispute from a union which is normally recognised as a bargaining agent of the men concerned. In the civil service, " breakaway" unions are not allowed rights of representation through the Whitley Committee system. The refusal of the Post Office to recognise new unions was upheld, after an inquiry, by the Post Office (Departmental Classes) Recognition Committee.9 The problem that has to be solved is whether the sacrifice of the freedom of the individual to join a union of his own choice, or, if he feels that his interests are not being properly served by existing organisations, to form a new union that will better suit his purpose, is worth the gain that would accrue from the development of a more orderly trade union structure. An alternative to the compromises that inevitably result from the conflict of morality and expediency in the British situation would be to adopt the American method of a publicly conducted election to determine who is entitled to bargain for whom. The adoption of this system would, however, presuppose a willingness to accept a degree of legal intervention in the sphere of industrial relations quite alien to British custom and practice. Trade unionism here has, of course, developed within a legal 8 Spring v. National Amalgamated » February 1952, Cmd. 8470.

Stevedores and Dockers [1956] 1 W.L.R. 585.

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Relations

framework but the principal objective in Britain has been to interfere with the formation and growth of trade unions as little as possible. The general assumption, since the 1871 Act, has been that trade unions are voluntary associations of workpeople established for the legitimate purpose of protecting their members' interests. In the 1871 Act a cautious attempt was made to promote good trade union government through the voluntary registration provisions; but these provisions and the power given to the Registrar to protect the interest of the members from wilful and wayward union leaders in themselves provide little safeguard against abuse. Nevertheless, registration has been of profound importance, since it has set standards which, because of that astonishing respect for the law to which Professor Kahn-Freund drew attention in his lecture, have been accepted by British trade unionists. It has, however, been questioned whether under modern conditions, in which trade unions exercise greater power than ever before, more authority should not be given to the Registrar to see that, in the interest of the members, union rules are properly and fairly carried out. In the case of the political rules of a union the Registrar already has authority to take action if on the complaint of a member he finds that they have been violated. In Australia the courts have power to order an inquiry into alleged violations of electoral rules, to determine the validity of elections and to conduct elections under the auspices of the courts in cases where they are satisfied that this is necessary to ensure that all members of the union are able to exercise their democratic rights. This legal intervention in the internal affairs of Australian trade unions, which was first taken by a Labour government, with the support of the Australian Council of Trade Unions, was made necessary by the repeated and clearly proved violations of the electoral rules in both the letter and the spirit by members of the Communist Party. There is clear evidence that British Communists are willing to resort to undemocratic methods to ensure their control of trade unions, but it does not appear that the threat which they represent to democratic trade union government and good industrial relations has yet developed to the stage where trade union members feel that they need to rely on the law for their protection. There would be great reluctance among non-Communist trade unionists to 373

Trends of Social Policy support legislation of the Australian type, simply because of the traditional dislike of seeking outside assistance to resolve matters of internal union business. The general public could perhaps be brought to favour more far-reaching legal control of the unions if an extreme minority were to be allowed to gain widespread control, or if the unions showed a growing indifference to the rights of individual members. But it is perhaps not without significance that unions which have relied on the law to secure their ends, in Australia, America and on the Continent, have been less resistant to corruption and less able to withstand Communist infiltration than the British trade unions. It has often been suggested during the past half-century that a solution to the problems of trade union structure and trade union policy could best be found by an extension of the authority of the T.U.C. The British Trades Union Congress has great public prestige, but its General Council enjoys far less power and influence over the constituent unions than the central trade union committees in any of the Scandinavian countries, Germany, Holland or Italy. The relative weakness of the T.U.C. is entirely in keeping with the character of the British trade union movement. It is a reflection of the reverence which trade unionists in this country have for the principle of autonomy, or, some might say, of the fear which narrow, cautious and conservative minds have for an idea which suggests the possibility of bold, imaginative, even dangerously revolutionary policies. The conflict over the issue of centralisation has been going on almost since the T.U.C. was founded. It is not the only question on which there are profound differences of opinion within the trade union movement at the present time. The responsibilities which have to be carried by the trade unions, now that they have achieved the position described by Winston Churchill as an estate of the realm, are irksome to those who believe that the primary function of a union is to fight for higher wages and shorter hours by the exercise of the maximum bargaining strength. Confusion exists because the modern system of collective bargaining, which developed for the most part under conditions of large-scale unemployment, at a period when the economy was cushioned by massive financial reserves, is not easily modified to fit the conditions of full employment and an economic situation in which Britain teeters 374

Industrial

Relations

from one balance of payments crisis to the next. And this state of affairs is worse confounded by the ideological muddle in which British trade unionism finds itself because of its ardent attachment, on the one hand, to laissez-faire collectivism and, on the other hand, to a political Party which professes to be seeking to create a Socialist State in which the " means of production and exchange " are owned by the public and all economic activity is centrally planned. Although the unions, or, more accurately, eighty-four unions, with almost two-thirds of total trade union membership, are an organic part of the Labour Party, it does not follow that they are always willing to follow the Party's policy without question. During the last Labour Government's term of office fear of the unions effectively frustrated the legal authority it had taken to direct manpower to where it was urgently required to meet the needs of the Government's carefully worked-out plans. But the most significant example of the power of the unions to limit the extension of Socialist planning was their refusal to accept any institutional interference with the freedom of collective bargaining. Even during the war there was no fundamental limitation of the freedom of collective bargaining and no serious attempt was made to impose a planned system of wage control. It is true that a wage restraint compact was accepted in 1948, but it failed to prevent an excessive rise in wages and the devaluation of the pound; and even the knowledge that the fate of the Labour Government might rest on a willingness to agree to the continuance of wage restraint was insufficient to induce the unions to sacrifice their traditional rights. The problem which the Labour Party failed to solve, namely, that of maintaining full employment, a high rate of economic growth, stable prices and free collective bargaining, has equally perplexed its Conservative successor and, it should be added, governments of all types in other countries. Were Dicey alive today he would no doubt have written to The Times, and I think that they would have printed his letter, to draw readers' attention to the fact that he had pointed out the dangerous consequences that would flow from the 1906 Trade Disputes Act and the National Insurance Act of 1911. The "statesmen who have introduced unemployment insurance supported by the State have," he wrote in the introduction to the second edition of Law and Opinion, 375

Trends of Social Policy " whether they knew it or not, acknowledged in principle the droit de travail for the sake of which Socialists died behind the barricades of June 1848." Dicey was right, though it was not until the end of a Second World War, which had produced a notable stirring of social thought, that it was officially accepted that the maintenance of a high and stable level of employment was a major aim and responsibility of the Government. Before 1914 it was taken more or less for granted that the natural state of the economy was one of full employment. On this view of the economic system unemployment was due either to the moral inadequacies of the working classes, or to temporary but inevitable fluctuations in business activity. There were, therefore, no grounds on either count for departing from the principles of laissez faire. The trade unions had more faith in works, especially in public works, than in hope or charity, and they pressed for public expenditure as a means of regulating the level of employment. The Unemployed Workmen Act of 1905 was apparendy not thought by Dicey to be worthy of censure; probably because its main objective was to encourage private charitable relief. It was, however, a step towards the acceptance by the State of a duty to maintain full employment. And the Parliamentary Committee of the T.U.C. was able to record a further move in that direction when after the great Liberal landslide in 1906 the Government was, for the first time, persuaded to allocate funds to the amount of £200,000 towards the relief of the unemployed. Throughout the 1920s and 1930s the trade unions continued to urge their belief in public expenditure as an antidote to unemployment, against the Treasury view. The simple logic of the unions' opinion that the worst way out of a depression was by cutting money wages led Keynes to remark that trade unionists were unconsciously more reasonable economists than the classical school.10 Had Keynes been alive today he might have had to revise his opinion that " no trade union would dream of striking on every occasion of a rise in the cost of living." But in passing judgment on the attitude of the unions to the problems posed by full employment I do not think that he would have regarded them as quite so culpable as his distinguished disciples, the Oxonian Keynesians, 10

General Theory of Employment, Interest and Money (1936).

376

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Relations

who have adopted the view that it is not only possible for a country to spend its way out of a slump, but that it is also possible to spend its way out of an inflation. The success of this new doctrine depends, however, upon the fulfilment of two other propositions: (1) the strict control of wages increases; (2) strict control of imports and the abandonment of Britain's role as banker to the sterling area. It is difficult to believe that either of these draconic measures would be to our economic advantage, or that they would have been acceptable to a man of such liberal persuasions as Keynes. The unions desire a stable cost of living, but they believe that it is impossible to check rising prices in what they choose to call an unplanned economy by means of fiscal and monetary policy. Furthermore, they think that to raise the rate of interest will benefit the capitalist class and they fear that it will lead to an uncontrollable deflation that will bring in its train mass unemployment. They therefore propose as an alternative policy price controls and subsidies, investment controls and dividend limitation, import controls and a stricter supervision of capital transfers abroad. It is assumed by many trade unionists that, given these controls, it would be possible to leave the unions free to bargain without incurring the danger of causing price increases. The more sophisticated union leaders recognise, however, that it would not, in practice, be feasible to control every aspect of the economy except wages. It may be asked, however, what chance there is of the unions freely accepting a centrally imposed national wages policy? The answer must be, from past experience, very little. Even if the unions were to accept some form of national wage policy which involved the slowing down of money wage increases to a pace commensurate with the rate of rise in the total output of goods and services, it is doubtful whether they could hold this position for long if the pressure of demand was at all great. I think that the experience of other countries has shown convincingly that wage controls do not make an effective dam against an income stream generated by inflationary policies.11 The trade unions are, therefore, in my opinion, right to refuse to agree to the imposition of a centrally directed wages policy. But it does not follow that the unions are wise to press for wages that are far in excess of any 11

See my National Wages Policy in War and Peace (1958).

377

Trends of Social Policy possible rise in production, and they are especially vulnerable to criticism when they misguidedly seek to achieve inflationary wage levels by strike action. In the past industrial unrest did not, for several reasons, pose the acute threat to our economic well-being that it does today. The level of unemployment and the economic reserves accumulated in the nineteenth century provided a large cushion which absorbed the impact of even prolonged strikes. Industry was less interdependent and so less vulnerable to stoppages. Today a large-scale closure of any of a number of basic industries is likely to have the most profound economic repercussions because the margin upon which the nation now works is so narrow. The British economy could not, therefore, stand the repetition of the great strike periods of 1910-13 or 1919-21. For eleven years, from 1940-51, we sought to prevent strikes by compulsory arbitration, but experience showed that this was by no means an infallible method. And the experience of Australia, which has both compulsory arbitration and one of the worst strike records of any country, does not suggest that the prohibition of strikes by law is the best method of prevention. The rising number of strikes in the past few years and their cost to the economic well-being of the nation has now led to the suggestion in certain quarters that the law should be changed so as to make a ballot of the members a compulsory step before a strike is called. This has naturally been opposed by the unions and it has not commended itself to the Ministry of Labour, but it is possible that there could arise a strong public demand for a legal curb on the power of a minority of union members to call a strike without a formal expression of support from the majority. In some cases a ballot of the members would have prevented a strike, but I suspect that in the great majority of instances it would not. There would, in fact, be a danger that a compulsory ballot might actually cause more strikes, since union leaders, knowing that they must have ballot support, would be encouraged to provoke a situation which would induce their members to vote in favour of striking. Having stimulated a strike-prone atmosphere and obtained powers to strike unions might well be persuaded more easily to strike than would have been the case without the compulsory ballot. The best way of preventing strikes is not by legal prohibitions; past experience in Britain and overseas has shown convincingly that 378

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Relations

in democratic countries this does not work, but by securing responsible trade union leaders, fair and efficient employers and wise governments. Laissez-faire collectivism is only possible so long as individuals and groups behave with a sense of responsibility; unions should, therefore, accept as a general principle that wages ought not to rise faster than the output of goods and services. T o be consistent they should also be willing to accept that it is the duty of the Government to take countervailing action by way of monetary regulation and fiscal policy if wages rise too fast, as they urged it to do when incomes rose too slowly to maintain full employment. Unfortunately, the unions have, in fact, been far more ready to press for inflationary policies than to support measures to maintain economic stability. It is interesting to compare the attitude of trade unions in Britain and in the Netherlands on the problem of maintaining price stability and maximising long-run economic growth. The Dutch trade unions, including the Socialist unions, have been willing to recognise that it is sometimes necessary to accept a reduction in the real income of their members in order to check inflation and to save the nation from a disastrous balance of payments situation. In Holland understanding of the fundamental economic problems has been far more widely diffused than in Britain. An educational effort, based on the same scale of mental toughness as that made by the leaders of all sections of the community in the Netherlands, could, I believe, achieve results in this country that would be far superior to any attempt to impose by law what is not accepted by opinion. The prevention of inflation is not the only ground on which a centrally directed national wages policy has been advocated. Equality is the main objective of those who, like Mrs. Barbara Wootton, regard the market as a totally irrational economic instrument which simply reflects the power of the institutions which engage in collective bargaining. There can be little doubt that institutions have an impact on the structure of wages, but it is difficult to explain long-run trends in wage differentials simply on the basis of whim, caprice and the power of trade unions.12 The experience of the Netherlands is here again instructive, 12

See L. G. Reynolds and C. Taft, The Evolution of Wage Structure (1957).

379

Trends of Social Policy since in that country wage differentials are determined by job evaluation on the basis of so-called " objective criteria." This has been the least successful aspect of the Dutch system. It has provoked considerable criticism and both trade unions and employers have resorted to manipulation of the technique and in some cases simply to illegal payments. In a small, tighdy compact country it is possible to make an inflexible system of this kind work, but it may be doubted whether opinion in Britain could be brought to the point where it would support, as in Holland, the legal imposition of a wage structure determined without reference to changes in the supply of and demand for labour. So long as there is freedom of movement and no direction of labour there ought to be a minimum of restraint on entry into jobs and the professions. I see, in general, no case under full employment for continuing limitations which were imposed to protect sectional interests from the effects of mass unemployment, or reason for freezing differentials into a set pattern determined by factors outside the labour market. It is not an important criticism of free collective bargaining to point to the existence of anomalies. Anomalies may be the product of monopoly exploitation, or they may be the reflection of a genuine need to attract or repel entrants; if the latter they fulfil a vital need in a free society, since without them there would be a less efficient distribution of resources. From the point of view of equity and efficiency it may well be that the law gives too much protection in the labour market to the restriction of entry and the right to practise a trade, and in the product market to the fixing of retail prices. The attitude of the unions towards the control of monopolies has been influenced by countervailing desires. On the one hand, they have wished to prevent private monopolists from exploiting their economic power, but, on the other hand, they have been afraid that the promotion of more competition would adversely affect their bargaining strength. Since unions have generally found monopolies easier to deal with than small competitive enterprises, it is not surprising that they find their position ambivalent and that they seek to make it respectable by substituting, not competition for monopoly, but public for private ownership. The law already favoured the monopoly practices of entrepreneurs when Dicey 380

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delivered his lectures 13 ; but it was not until 1924 that the same principles were applied to the protection of labour interests.14 Collective price control is now regarded as against the public interest, but legislation adopted during the past decade to curb the power of monopolies has specifically excluded the trade unions from its jurisdiction on the grounds that labour is not a commodity. There are some people, however, who would like to see union agreements which embody restrictive practices made subject to the Restrictive Practices Court. I think that it would be agreed that to try to get rid of restrictive practices by legal means would raise immense technical difficulties of definition, but, more important, it might worsen industrial relations and lead to other forms of restriction. The problems of restrictive practices and also of wage differentials are best settled, it seems to me, not in the law courts, but in the plant. There is adequate evidence to show that these issues can be resolved at this level if industrial relations are on a sound footing and if there is mutual confidence and respect between management and the unions. Unfortunately, the British system of industry-wide collective bargaining tends to focus the attention of the unions on the national basic wage-rate. The effect of this development is to make changes in the basic rate a symbolic issue by which the success or failure of the union is judged. This means that issues of vital importance at the workshop are left almost entirely to the initiative of the shop steward and often receive little attention from the leaders of the union unless a dispute—sometimes an actual stoppage—has occurred. Industry-wide bargaining has also limited the scope of collective agreements. I feel certain that had collective bargaining been mainly on a company or plant basis, far more attention would have been given, as in the United States, to the so-called " fringe benefits." There are several reasons why nation-wide collective bargaining has developed in Britain. It is a natural concomitant of the British preference for monopolistic price-fixing arrangements. Whereas in 13 14

Mogul Steamship Co. v. McGregor, Gow & Co. [1892] A.C. 25. Reynolds v. Shipping Federation [1924] 1 C h . 28.

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the United States there has been a constant effort to make collective price-fixing arrangements illegal, until recently they have been encouraged in Britain. There are few employers' organisations in existence in the United States, and it has been suggested, in certain quarters, that the unions, which are excluded from the antimonopolies Acts, should be prevented from entering into industrywide collective agreements. Social security legislation has been less well developed in the United States than in Britain and this has encouraged the unions to seek improvements through the process of collective bargaining. Rudimentary schemes of State social insurance have been vastly extended by the negotiation of supplementary retirement pensions, sickness benefits and comprehensive medical and dental treatment, supplementary unemployment insurance, redundancy compensation and job security based on the principle of seniority. There has been no comparable expansion of the scope of collective bargaining in Britain, with the exception of supplementary pensions. And even then the initiative has not come from the unions, but in the main from the employers. It may be doubted whether the narrow scope of collective bargaining in Britain is always a good thing. Is there any reason why an industry with a high seasonal labour turnover should shift the cost of sustaining its labour force during the period of lay-of? to the public? The development of the idea of the guaranteed annual wage, or, as it is now more commonly known, supplementary unemployment benefit, not only gives workers greater security, it also encourages employers to plan their labour requirements with more care. There are liberal redundancy agreements in a small number of British industries, but in many cases it has been the employer who has introduced the scheme and not the union which has made it a key objective of collective bargaining. Large-scale employers now show an increasing tendency to give manual workers the same or similar treatment as workers who are usually known as " staff employees." This major change in policy has been brought about in part by the strength of the unions, but more evidendy by full 382

Industrial Relations employment, the advance in personnel management and by technological developments which demand more and more responsibility with less and less manual skill. The reluctance of British unions to seek financial compensation for redundancy is difficult to explain. It perhaps arises from a sub-conscious belief that to demand a redundancy agreement is to accept the possibility of unemployment and that this may compromise attainment of the major goal which is the maintenance of full employment. In spite of repeated demonstrations that the slogan " no redundancy" is doomed to failure, it still attracts support, as a statement of policy, among left-wing shop stewards. The negative, futile attitude of the shop stewards in this respect is also due to the lack of leadership from the headquarters of the union, which is usually immersed in the negotiation of national wage agreements and has litde time in which to give an active lead on the broader issues of local affairs. Here is a by-product of the development of trade union structure in which there is excessive centralisation and, not infrequently, an uncontrolled and irresponsible workshop organisation. The situation revealed by the inquiry into the extraordinary state of affairs at Briggs' Motor Bodies was an extreme, but not altogether unique, example of the problem.15 Emphasis on the importance of security of employment has recendy come from both the Conservative and Liberal Parties. In the Industrial Charter the Conservative Party suggested that legislation should be introduced to secure the establishment of contracts of service which would define the terms on which a person was employed, and the grounds on which he might be dismissed; secondly, that the length of notice given on dismissal should be related in some way to the length of service. The Liberals made a similar proposal in their policy report on the Status of the Worker. The Conservatives have not given legislative effect to their proposals. They have, I think rightiy, preferred to encourage employers to follow the lead of the more progressive by developing a comprehensive employment policy which is embodied in a clear and precise statement, set out in writing and made available to every employee on joining the firm.16 This trend in employmental 13 16

Cmnd. 131 of April 1957. " Positive Employment Policies," Ministry of Labour January 1958.

383

and National

Service,

Trends of Social Policy policy has important giving every employee it is eliminating one between the working

social and economic implications, since by what used to be known as " staff conditions " of the most clearly defined boundary lines class and the middle class.

Another development that may, in the course of time, come to exercise a greater influence on social distinctions, though less on industrial

relations

shareholding.

than

its

advocates

imagine,

is

employee

Profit sharing is by no means a new development.

The early schemes were, however, often associated with an attempt to undermine an allegiance to trade unions and the attitude of labour organisations has, until recently, been hostile. If unions no longer regard profit sharing as a threat to their existence, this is probably due to the maintenance of full employment and the experience that profit sharing need not be at the expense of wages. The fact that the firms who have introduced profit sharing in the recent past have included such notably good employers as I.C.I., Rolls-Royce, Courtaulds and Hoover, Ltd., has probably contributed to the change in attitude.

In other words, profit sharing

is not the cause of better industrial relations so much as the derivative of them.

Nevertheless, employee shareholding could

become an important factor in the formation of good industrial relations; in view of the support given to the idea by leaders of the Conservative Party it is surprising that the opportunity has not been taken by Conservative Chancellors to encourage its further growth by appropriate tax concessions.17 The growth in employee shareholding depends, inevitably, upon the continuance of private enterprise. The chances are that industry and trade will be, for the most part, in private hands at the end of the century. If, however, public ownership has superseded private control of industry and detailed central planning has been adopted in place of a broad framework of economic regulation and the establishment of general economic incentives, then it is certain that a fundamental transformation in industrial relations will have occurred, but I fear the transformation will not be as satisfactory as the supporters of nationalisation now believe. 17

See G. Copeman, The Challenge of Employee Shareholding 384

(1958).

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Relations

T o many trade unionists in the past, and to quite a number in the present, the only certainty of obtaining security of employment, higher wages, an improved status and good relations with management, lay in the nationalisation of industry. Ten years' experience of nationalisation has shown, however, that the legal changes in ownership and the imposition of legal obligations to establish machinery for collective bargaining and joint consultation have not produced the outstanding improvement in industrial relations anticipated by the advocates of nationalisation. Nationalisation has failed to be the panacea its supporters so ardently hoped that it would be for two main reasons : (1) a change in ownership does not change the institutional character of largescale organisations; (2) a change in ownership does not alter the nature of the economic problem which faces management unless it is decided deliberately to allow the industry to run at a loss. Many trade unionists refuse to see that nationalised industries are faced by exactly the same fundamental problems as private enterprise and they are still searching for an explanation of what has gone wrong. Unfortunately, they usually find their answer in suspicion of the motives of management and more latterly in the Government's economic policy. It is impossible to avoid criticism of the failure of the unions to make any constructive suggestions for the solution of the problems that nationalisation has brought. The fear that public ownership would not be enough led to the growth of the Syndicalist and Guild Socialist movements before the First World War, and they sought " workers' control " of the nationalised industries. In the practical terms of union policy this came to mean a demand for 50 per cent, trade union representation on the boards of management of nationalised industries. Eventually, however, this idea was dropped in favour of the much more modest proposals that trade union leadership should be accepted as constituting qualifying experience for appointment to a Board. At the same time the unions insisted that on appointment an official should resign his union post. In this way the unions sought to avoid the difficulty of a senior leader being placed in a position where he might be caught in a conflict of loyalties. The severing of formal connections with the union has simply had the effect of placing ex-union leaders in the same position as other members of the Board of Management. It is the character of O.T.T.

385

25

Trends of Social Policy the policy of the Board which, in practice, interests the trade union, not the person who made it. Having an ex-trade unionist on a Board, in fact, probably makes an unpalatable decision even more difficult to swallow than would have been the case had he not been there. Nor is there any evidence that the legal duty to recognise trade unions, imposed by the Nationalisation Acts, has had any significant bearing on the development of industrial relations in the nationalised corporations. Influencing the behaviour of management to a far greater extent has been the knowledge that the attitude of the Minister and the Government's economic policy could not be ignored on major issues affecting the staff. This situation has imported into industrial relations in nationalised industries a feature not present in private industry, and this has not, in my opinion, been conducive to good industrial relations. The constant awareness of the political sensitivity of decisions on such matters as wages neither helps management to arrive at the right decisions nor does it encourage the unions to see these problems in a balanced perspective. Much effort has been made in the nationalised industries to make joint consultation a success, but it could hardly be claimed that the results have been outstanding or superior to those achieved in comparable private firms. In this respect the Post Office has far more to show than any of the more recently nationalised industries. The degree to which the trade unions in the Post Office participate in the making of decisions which vitally affect every aspect of Post Office management without losing their essential independence is one of the most remarkable developments in British industrial relations in the twentieth century. Not only are the unions consulted on, for example, the planning of a new sorting office and the design of a new telephone exchange, they even participate in the process of selecting suitable persons for the first line of promotion. Perhaps more is to be expected from the vast expansion which the nationalised industries have made in their educational and training work. These educational schemes are discovering managerial talent and improving managerial skills, and their net effect ought to be an improvement in industrial relations. T o improve the efficiency of management is not, however, to change 386

Industrial

Relations

the fundamental fact that in a nationalised industry, just as in private enterprise, someone has to take responsibility for initiating, planning, directing and executing. It is extremely significant that the National Union of Mineworkers, which forty years ago was the most enthusiastic supporter of workers' control, is now emphatically against taking any responsibility for the decisions of the National Coal Board. Spokesmen of the union today insist that it is the job of the Board to manage efficiently, and that it is the job of the union to protect the interest of its members by bringing pressure to bear upon management at the appropriate time and place. In other words, British trade unions have not only abandoned the limited support which they gave to quasi-syndicalist ideas thirty or forty years ago; they have shown no interest in the concept of co-determination which has attracted the German, and, in an even more far-reaching sense, the Yugoslav trade unions. For a brief while during the last war there was a demand by the engineering unions for the introduction of legislation to make joint consultation a compulsory feature of industry, but this policy was not acceptable to the trade union movement as a whole, and this flicker of interest in old ideas rapidly died out. In this, as in other fields of activity, the mood of the unions is dominated by institutional considerations and by the fear of being compelled to accept responsibilities which might prove incompatible with their freedom of manoeuvre. This attitude is, in many ways, a healthy one. The unions maintain a sturdy independence; they check arbitrary decisions and their constant pressure compels management to be more efficient than it might be if the control of industry were vested in the joint names of employers and trade unions. The outcome of a system of industrial relations under which the unions become an agency of the State, and it is their main function to assist management to achieve higher production has been amply demonstrated in the Soviet Union as one which, in practice, leaves the worker entirely at the mercy of the manager. I cannot believe that a State in which is vested the ownership of the entire complex of industry and commerce will be willing to permit employers and trade unions to settle their affairs as freely as they do today. We have seen, under the limited amount of nationalisation that we now have, how there is a tendency for an industrial dispute over wages or working conditions to become a 387

Trends of Social Policy major political issue. If all industry were nationalised, then every important question would raise questions of politics. It may be suggested that the complexity and integrated character of a modern industrial society has already brought this situation about, since even under a system of private enterprise any attempt to draw a line between the sphere of the " State " and the sphere of " Society " is doomed to failure.18 This, to some extent, may well be true, since it is possible that any industrial dispute might ultimately involve action by the Government. But there is surely a considerable difference between a situation in which it is normal for issues between employers and employees to be settled autonomously and a situation in which the Government is involved from the outset by virtue of its responsibility as the ultimate employer. I fear that under a system of total nationalisation, unless, in fact, it is possible to simulate the characteristics of a mainly private enterprise economy, industrial relations would be determined by legal regulation rather than by the interplay of pressure groups and the subtle influence of voluntary agreements. It may be that I see more virtue in our present arrangements than is truly warranted by the facts, but I find it impossible to believe that democracy is likely to survive in a society in which there are no independent sources of power, especially industrial power. From this point of view it follows that I attach the greatest importance to the maintenance of a substantial proportion of the economy in private hands. It also follows that an independent trade union movement is indispensable to the preservation of democracy. Whereas Dicey saw the trade unions as a radical force making for totalitarian Socialism, it is also possible to see them as a conservative force making for stability, security and democracy. The more technocratic and bureaucratic that society becomes, the more important will be their role of defending the interests of their members from decisions which emanate from the Government and other centres of power. The necessity for this conservative, defensive function has been stressed because it is a vital counterpoise to the centripetal tendencies of the modern State, but this does not mean that trade unions must behave in a negative, obstructive manner. On the contrary, 18

Cf. O. Kahn-Freund, " The Legal Framework," in The System of Industrial Relations in Great Britain, edited by Allan Flanders and H. A. Clegg. 388

Industrial

Relations

the price of power is that it must be used positively and with responsibility. Power in society is already too delicately balanced to permit of an absolute discretion to any sectional interest. Unions must so contrive as to promote the legitimate interests of their members without violating the interests of the rest of the community. The fundamental question is, therefore, not how to get rid of the system of laissez-faire collectivism, but how to maintain it as the basis of industrial relations; this may require from time to time changes in the law, but it is to be hoped that neither workers nor employers will ever have to rely solely on the law and its practitioners as their principal source of protection against one another. Since the institutional characteristics of a technically advanced society threaten the right of the individual to cry out aloud against that which he feels to be oppressive, antithetic to his interests and dangerous to general morality, he must have the right to organise. This right and the conflicts which flow from its exercise ought never to be eliminated by law simply on the plea that a State-provided service would be more efficient. As a corollary it follows that the trade unions and employers must not themselves abuse the power which they have acquired by the process of economic and social growth. It is a basic condition of their survival as free institutions that they do not become ossified, bureaucratic, institutional dinosaurs. Any changes in the law will, I hope, be directed towards preventing this evolutionary fate; not towards speeding it up.

389

INDEX OF NAMES ABRAMS,

BELLOC, HILAIRE, 6 4 , 8 2 ,

MARK,

on public opinion, 265

ADAIR,

JAMES,

member of Wolfenden Committee, 275 ADDISON, C H R I S T O P H E R (1st Viscount), Liberal Minister of Health, as, 76 ALDERSON, L O R D

(judge),

ALLEN, C .

K.,

AMERY, L .

S., 50,

229

on administrative law, 197 73

on basis for coalition, 48

AMULREE, W . W . M . (1st Baron), 238

See under LEY (1st Viscount).

ANDERSON, S I R J O H N .

ARNOLD, MATTHEW, 4 6 , A R N O L D , THOMAS, ASHWORTH,

WAVER-

BENNETT,

ARNOLD,

64

BENTHAM,

JEREMY,

28,

ALBERT,

WILLIAM,

L O R D (judge), freedom of contract in employment defended, 253-254

ATKIN,

65

172,

304

STANLEY (1st Earl Baldwin of Bewdley), character appraised, 50-51

BALDWIN,

L.,

trade unions and educational reform, 336

BARKER, S I R ERNEST,

DISRAELI,

BELL,

GORELL,

BENJAMIN.

ANDREW,

(1st Earl),

BEVIN,

ERNEST,

as Minister of Labour, 250 BISMARCK, P R I N C E VON,

126

under

74

on towns of future, 122, 123

278

social insurance legislation 220n. SIR WILLIAM,

BLUM, LEON, BONAPARTE,

of,

220,

101

236 NAPOLEON,

hostility towards wealth, 69 329, 351, 355n.

BOWLEY, A .

L., 358n.

BRADLAUGH,

CHARLES,

Truck Act amendment promoted, 246 65 172

Bentham and, on France, 29-30

BURN, W .

L.,

149

BURNHAM, JAMES,

324

B E L L A M Y , EDWARD,

See

LORD.

193

H . (1st Baron), 300 political influence of, 63-64 reformer of social security law, 245 subsistence benefits urged, 358

B U R K E , EDMUND, 4 9 , 7 8 ,

(1st Earl of).

BEATTY, DAVID

H.,

300

BEVERIDGE, W .

BRIGHT, JOHN,

on autocracy, 73n.

BEACONSFIELD

J. B.

BOOTH, CHARLES,

BALFOUR, A . J . (1st E a r l ) , 48, 5 2 , 6 9

See under

278

BEVAN, ANEURIN,

BLACKSTONE,

BARNES, J . G .

324,

view of Socialism, 91

ASQUITH, H. H. (1st Earl of Oxford and Asquith), 84, 127, 215 introduced old-age pensions, 66 self-conscious superiority of, 69

BANKS, O .

41,

EDUARD,

BERTHELEMY, L .

on motives for town planning, 126

BAGEHOT, W A L T E R , 4 7 ,

39,

BERLE, A . A . ( T h e Y o u n g e r ) , 147

BERNSTEIN,

323

A U G U S T I N E , S T . , OF H I P P O ,

35,

351 constructiveness as critic, 29-30 double standard in morality excluded, 38 equality, relation to security and property rights, 12-13 function of law, view of, 99-100 law reform, views on, 101-103 principle of utility, implications of, 33-34 BERNER,

324

121

BURNS,

147

JOHN,

town planning, influence on, 127

BUTLER, R .

A.,

368

on State and citizen, 58

Index

of

CAMPBELL-BANNERMAN, SIR H E N R Y , 7 7 - 7 8 , 127, 2 1 5

heir to Gladstone, 66 Trade Disputes Act of

on human nature, 16-17 on self-interest and public good, l l n . (Viscount), reform of Army, 7l

CARDWELL, EDWARD

CARPENTER, EDWARD,

CARTER,

268-269 342-343

on temperance movement, 46n. C E C I L , LORD H U G H ,

on limits of State action, 58, 59 LORD ROBERT (afterwards Viscount C. of Chelwood), 74

CECIL,

DICEY, A . V . , 3 , 5 , 6 8 , 118, 125,

1st

CHADWICK, SIR E D W I N , 3 0 1 125

influenced by Henry George, 124 CHELMSFORD

(1st Viscount),

CHESSER, EUSTACE,

73

274

CHESTERTON, G . K . ,

64

use of term " Radical," 63 CHURCHILL, SIR W . S . , 3 5 7 , 3 7 4

as Coalition Prime Minister, 48 droit administrate, ignorance of, 201202 government purchase of oil shares, 147 labour exchanges and trade boards set up by, 366 Liberal 1st Lord of Admiralty, 71 on courts and trade unions, 232, 241242 CLARK-KENNEDY, A . E . ,

316

(judge), on monopolies, 1/3, 174

C O K E , SIR EDWARD

COLE, G . D . H . , 19

on use of facts in argument, 279

COLERIDGE, S . T . ,

102

COLLINGS, JESSE, 1 2 5

Cox, A., 318n. CRANBORNE, VISCOUNT. BURY, MARQUESS OF. CRESWELL, SIR CRESWELL CROSLAND, C . A . R . , CROSSMAN, R . H .

See under

SALIS-

(judge), 291

147

S.,

bureaucratic despotism, on dangers of, 199

DANTE

(Dante Alighieri), 65

DARLAN, J . L . X . F .

(Admiral),

contracts, enforcement of, on, 164, 165 hospitals, liability for negligence, 211 on French administrative courts, 195 trade union rules, view of, 114 D E V L I N , SIR P. A. (judge), administrative law, need for urged, 213 badly drafted contracts, attitude of courts to, 165 on contact between lawyers and businessmen, 171

HENRY,

CHAMBERLAIN, JOSEPH, 7 3 ,

(judge), on Trade Disputes Act, 1906... 107

D A R L I N G , LORD

D A R W I N , CHARLES, 3 0 2 , 3 5 1 D E N N I N G , LORD (judge),

1906...67

CANNAN, E D W I N ,

CARR-SAUNDERS, A . M . ,

Names

DICKENS, CHARLES, 201-202

160,

163, 191, 199, 200, 214-218 passim, 227-231 passim, 237, 250, 252, 261, 262, 268, 284, 299, 310, 313, 315316, 329, 351, 352, 362, 366, 369, 370, 388 administrative law, hostility to, 193— 194, 195, 196 changes since his time, 45-46 collectivism, danger of, in field of health, 301-302 collectivism, view of, 79 criminal law neglected by, 266-267 educational policy given little attention by, 319, 320 hazards of criticism, on, 172 industrial hostilities, fear of involvement by courts in, 243-244 judge-made law, on, 280-281 judges, conservatism of, 291 laissez-faire and Utilitarianism, on, 8 minimum wage laws, on, 251 monopolies, barely mentioned by, 175 notable omissions by, 143 pessimism, background to, in labour law, 219, 220 public opinion as obstacle to legislation, on, 276 impact on labour law, analysis of, 220-225 passim law seen as creator of, 267 paternalistic notion of, 264-266 varieties of, identified by, 121 " Radical," use of term by, 63 Radicalism, affinity to Socialism, on, 66 right to work, recognition of feared, 375-376 social security, burden of, on taxpayers, 360 taxation, view of, 153-154 trade union closed shops, on, 107 trade unions, failure to understand, 367 war given little attention by, 74 on land law, 116

Index of Names DICKINSON, G .

LOWES,

19,

DISRAELI, BENJAMIN, 4 4 ,

64

GIFFARD,

acquisition of Suez Canal Shares, 147 on conservative tradition, 47 two nations doctrine, 68 DRUCKER, PETER,

147

DURKHEIM, SMILE, 2 6 5 , 2 8 0 ,

decentralised collective advocate of, 23

H.

302n.

responsibility,

GINSBERG,

129

302

ELLENBOROUGH,

LORD

(judge),

GOWER, L . C .

K.,

267

WILLIAM,

B.,

218 147

101

4

GREENE, LORD ( j u d g e ) ,

261

findings of Committee, 179 local authority discretion defended, 204

327-328

FINDLAY, SIR GEORGE,

H.,

critic of individualism, 5 on property rights, 6 rights, validity of, and recognition, 8

229

EVERSHED, LORD ( j u d g e ) ,

290

284

GOYDER, GEORGE, GREEN, T .

THOMAS,

VON,

GOSCHEN, G . J . ( 1 s t V i s c o u n t ) , 124

27

PHYLLIS,

FARRER,

277 (judge),

G O R I N G , CHARLES,

on attempted suicide, 280 SIR

LORD

GORELL, LORD ( j u d g e ) ,

on Asquith's defence policy, 71

ERLE,

275 73

attitude of, to Empire, 73 Liberal Party, influence on, 65-66 on income tax, 153 reform of army, 71

GOETHE, J . W .

on restrictive practices, 174

EPPS,

HALSBURY

costs in arbitration, payment of, 171 on benefit of trade unions, 229

EHRLICH, PAUL,

ENSOR, S I R R . C .

141,

E., 44,

G L O V E R , EDWARD,

ECKSTEIN, H . , 3 0 8 n .

ENGELS, FRIEDRICH,

MORRIS,

GLADSTONE, W .

GODDARD,

EDWARDS, T R Y S T A N ,

See under

S.

(1st Earl of).

48

G R I F F I T H S , JAMES, 3 5 9 ,

227

360

FINNEMORE, SIR D . L . (judge), 212-213 FISHER, J. A . (1st Baron), Liberal support for, as 1st Sea Lord, 71 FITZROY, SIR

ALMERIC,

on Liberal defence policy, 71 FLORENCE, P . SARGANT,

SIR

JAMES

See under

MAXWELL.

GALTON, SIR FRANCIS, GEDDES, PATRICK,

GEORGE,

127,

a n d ( L U C Y ) BARBARA,

HARCOURT, S I R

65

281

WILLIAM,

H A R D I E , JAMES K E I R , 4 4 , 7 5 ,

302 129

71-72

HENRY,

influence of, 124 on land nationalisation, 133-134

81

closeness to Fabianism, 80

260

MUIR (1st V i s c o u n t ) .

GEORGE V ,

52

middle-class bias of Utilitarians, on, 13

death duties introduced by, 66, 124

302

impact of, on medicine, 315 DAVID

HALEVY, £ L I E , 3 9 ,

H A N D , LEARNED ( j u d g e ) ,

on working-class education, 324-325 F R E U D , SIGMUND, 7 2 ,

FYFE,

Liberal War Minister, as, 71 on price-fixing agreements, 177

HAMMOND, J . L .

(bishop),

F R Y , S I R EDWARD,

on Conservative tradition, 50 right of property defended, 59-61

HALSBURY ( 1 s t E a r l o f ) , 7 5 , 2 4 0

LIONEL,

on prison reform, 282 FRASER,

74

HAILSHAM ( 2 n d V i s c o u n t ) ,

HALDANE, R . B . (1st V i s c o u n t ) ,

147

FORSTER, W . E . , 328-329 on aims of [his] 1870 Education Act, 325 Fox,

H A I G , DOUGLAS ( 1 s t E a r l ) ,

KIL-

HARRIS,

FRANK,

on Oscar Wilde, 269 HAZLITT, WILLIAM, HENDERSON,

Labour

102

ARTHUR,

and

and, 83-84

the New

HERBERT, SIR A . P . ,

290

HERDER, J .

283

G.

VON,

Social

Order

Index of Names L O R D (judge), 1 9 8 administrative law, distaste for, 196

HEWART,

HICKS

BEACH,

SIR

H O B B E S , THOMAS, 2 8 , 1 0 0 ,

as

See

MICHAEL.

(1st Earl).

S T . ALDWYN

State absolutist individualist, 4

HOBHOUSE, L . T . ,

104

and

4, 8,

under

sociological

14, 19, 2 2 ,

64

distributive justice, conception of, 15 on Liberalism, 67 on property rights, 6-7

HOBSON, J . A . ,

19,

QUINTIN.

HOLMES,

O.

W.

jnr.

HAILSHAM

(Mr.

Holmes), 240, 242 on drawing the line, 112-113

HOMER,

Justice

65

H O P K I N S , S I R F . GOWLAND,

302

HORNER, N . G . , 3 0 8 n . HORSFALL, T .

C.,

H O R S L E Y , SAMUEL

127

(bishop), 111

HOWARD, S I R E B E N E Z E R ,

129,

pioneer of garden cities,

HUME,

LASKI, H . J . ,

19,

118

LASSALLE, F E R D I N A N D ,

225

L A W , A N D R E W BONAR,

50

on Ulster, 51-52 See under

LAW, EDWARD.

ELLENBOROUGH,

LORD. 372

(1st Earl), 69, 72, 84, 120, 259, 307n., 357, 361 aristocracy, critic of, 69-70 doctors' main claims conceded, 313 Great Land Speech of, 134 health insurance, support of unions for, 366 insurance companies, courtesy towards, 355n. old age pensions, introduced by, 66 cost of, 353-354 progressive Liberalism of, 81-82 public housing policy of, 76-77 vice renounced Dy, 300

LLOYD GEORGE, DAVID

See under (2nd Viscount).

HOGG,

324

(5th Marquess of), attempt to make constitutional change harder, 55

LANSDOWNE

LLOYD, DENNIS, 2 6 0 ,

64

on equality, 14

LANCASTER, J O S E P H ,

130

LOCKE, JOHN, 2 8 , 4 0 ,

126-127

DAVID,

moral theorist but not moralist, 32 on equality, 13 on facts and values, 31 purifier of moral language, 28

HYNDMAN, H . M . , 8 1 ,

65

compared with Bentham, 38

85

LOWE, ROBERT, LOWES

44

DICKINSON,

under

GOLDSWORTHY.

DICKINSON, G .

LOWNDES, G .

A.

N.,

See

L.

329

233, 355n. Labour Party policy, 1918...83-84

M A C D O N A L D , J . RAMSAY, IDDESLEIGH

(1st Earl of).

NORTHCOTE, S .

LORD

I.,

118,

KAHN-FREUND,

O.,

KEKEWICH,

GEORGE,

SIR

MCGREGOR, O . R . , 2 7 2 n .

(judge), 260

(Doctor), 73

S.

JENNINGS, S I R W .

under

H.

JAMES OF H E R E F O R D , JAMESON, S I R L .

See

201n.

364 333

KEYNES, J . M . (1st Baron), 20, 63

MCKENNA, REGINALD,

MCKENZIE, R .

T.,

on division in Conservative tradition, 54 MACKINTOSH, J . M . , 299n. MACLEOD, I A I N ,

on Conservative tradition, 48

Capital Issues, control of, 155 on capitalism and semi-Socialism, 19 on Exchange Control, 154 on trade unions, economic interest of, 376-377 political influence of, 64 reflections on rationality, 72 self-conscious superiority of, 69 Treaty of Versailles, attack on, 74

M A D G E , JOHN,

(1st Viscount), on homosexuality, 271

MARSHALL, A L F R E D ,

KILMUIR

K I P L I N G , RUDYARD, KOCH, ROBERT,

302

64

153

Liberal 1st Lord of Admiralty, 71

265

MAINE, SIR HENRY, MALTHUS, T . MANDEVILLE,

R.,

114,

161

351

BERNARD,

on natural identity of interests, 100

(1st Earl of), on restrictive practices, 174

MANSFIELD

8, 302n. government, grounds for suspicion towards, 11 laissez-faire, view of, lOn. minimum needs, on meeting, 358

Index of Names M A R T I N , SIR THEODORE, 2 8 7

O G I L V I E , SIR H E N E A G E ,

27, 72, 302n., 367 class-conflict theory, 68 influence of, on trade unions, 82 MASTERMAN, C . F . G . , 355n.

OXFORD AND ASQUITH

MARX, KARL,

under

PAKENHAM

M I L L , JOHN STUART, 3 4 , 6 5 , 7 4 , 1 1 3 ,

175

contract, on freedom of, 6n. equality, view of, 12, 70 lawyers, opinion of, 101 liberty, essay on, 65 public opinion, on, 103 reason, on power of, 102 State interference, on grounds for, 9

344n.

MORANT, SIR ROBERT, 3 2 9 ,

333

H.,

administrative law, ignorance attacked by, 196-197 MORLEY, JOHN (1st Viscount), 73 influenced by Henry George, 124

of

HERBERT,

change in Conservative tradition regretted, 47

344n. See under

MANSFIELD

(1st Earl of).

POLLOCK, SIR FREDERICK, 2 3 3 POPPER, K .

R.,

PRESTON, W . C . , PURDOM, C . B . ,

329 129

RADBRUCH, GUSTAV, 2 7 8

private property, on Utilitarian defence of, 17-18 RHODES, C E C I L , 7 3

need for State planning urged by, 25 under

BONAPARTE,

NAPOLEON. N I G H T I N G A L E , FLORENCE,

100

(1st Earl), 70 344n.

ROBERTSON, C . G . , ROBSON, W . A . ,

GUNNAR,

287

118

ROMILLY, SIR SAMUEL, ROOSEVELT,

F.

D.,

116

220

ROUSSEAU, J . J . , 2 7 , 2 8 , 3 5 , 4 1 , 1 0 0 ,

113 ROWNTREE,

B.

SEEBOHM,

351, 358n.

327

CYRIL,

results of elementary education assessed, 325-326

KENNETH,

Conservative, defined by, 57 Conservative tradition, on, 50

ROBERTS, F . S .

MURRAY, SIR K E I T H ,

SIR

PICKTHORN,

RICKMAN, JOHN, 3 1 5

MURRAY, G I L B E R T , 6 3 , 6 4

NORWOOD,

on Conservative tradition, 49, 51 secondary education necessarily selective, 336 PETAIN, H . P . (Marshal of France), 202

RICARDO, D A V I D ,

76

NORTHCOTE, S . H - ,

302

RASHDALL, HASTINGS,

WILLIAM,

on Trafalgar Square, 122-123

See

H.,

PERCY, LORD EUSTACE,

on piecemeal social engineering, 283 PORTER, LORD (judge), 2 6 1

MORE, HANNAH, 3 2 4

NAPOLEON.

P£QUIGNOT,

PLATO, 3 6

L.,

on legal relations within universities, 114n.

MYRDAL,

WEBB,

on public opinion, 265

73

MURRAY, W I L L I A M .

under

P E E L , SIR ROBERT, 4 3

(3rd Baron), trial of, for homosexual conduct, 269, 270

MUNRO, H . H . ,

See

LADY.

PASTEUR, LOUIS, 3 0 2

MONTAGU OF BEAULIEU

MORRISON,

WEBB,

BEATRICE.

MITTERMAIER, C . J . A . , 2 6 8

MORRIS,

(1st Baron), 270 (1st Baron). See under

PASSFIELD,

(1st Viscount), 69, 73 architect of Commonwealth, 77 M I N T O (4th Earl of), 73

MORGAN, J .

PASSFIELD

SIDNEY.

M I L N E R , ALFRED

MONTROSE, J .

See

H.

argument for democracy, 40

faith in reason, 102

MOBERLY, SIR W A L T E R ,

ASQUITH, H .

P A I N E , THOMAS, 4 1

M I L L , JAMES, 3 4 , 3 5 , 3 9

MONTAGU, E . S . ,

313n.

(1st Earl of).

(1st Earl), on government spending, 45 SAKI. See under M U N R O , H . H . S T . ALDWYN

104,

Index of Names SALES, H .

B.,

UTLEY, T .

freedom of contract, on limitation of, by State, 161-162 SALISBURY (3rd Marquess of), critic of Disraeli in 1867...44 SALISBURY

(5th Marquess of),

SCHACHT, H J A L M A R , SCOTT, C . P . ,

WADE, E .

W A L L A S , GRAHAM, 6 8 ,

301

SIMON, J . A . (1st Viscount),

Crofter case, judgment in, 242 General Strike, judged illegal by, 226 100

65

Wealth of Nations,

LLEWELLYN,

150

186

(1st Viscount), 355n.

SNOWDEN, P H I L I P

(1st Viscount), 201n.

WAVERLEY

HENRY,

S M I T H , ADAM, 6 8 ,

KENNETH,

homosexual offences, on public attitude to, 269-270 SOMERVELL OF H A R R O W , L O R D (judge), 212 64

STEPHEN, SIR LESLIE,

133

on public ownership of land, 123-124

302

equality, in property, disadvantages of, 13 on proportionate, 12 State interference, on grounds for, 9

SPENDER, J . A . ,

201n.

advocate of land nationalisation, 124

SHERRINGTON, S I R CHARLES,

SODDY,

C. S.,

302

WALLACE, ALFRED RUSSEL,

Fabian Society, as leader of, 80

SMITH, HENRY,

QUEEN,

VIRCHOW, RUDOLF,

64

SHAW, G . B . , 6 4

SMITH, H .

GEOFFREY,

on Royal Commissions, 271-272 on position of women, 287

L. F . (judge), on misuse of contract, 161

SIMON, JOHN,

VICKERS, SIR VICTORIA,

61

155

SCOTT, SIR

SIDGWICK,

E.

on Conservative tradition, 50

WEBB,

BEATRICE, 3 0 0 ,

W E B B , SIDNEY,

133

WEBB,

and

Fabian Society, leader of, 80 Labour and the New Social Order and, 83-84 land, uninterest of Fabians in, 123-124 SIDNEY

SIR MALCOLM (Commissioner for Special Areas), influence of Reports, 141

STEWART,

BEATRICE,

WELLS,

238,

H.

G.,

appeal of, to Liberal optimism, 64 on 1870 Education Act, 325 WHITLEY, J . H . , WILDE,

367

OSCAR,

as victim of criminal law, 268-269 PETER,

public response to, after discharge from prison, 270-271 witness before Wolfenden Committee, 269 WILLIAMS, S I R ROBIN,

(judge), legal definition of cruelty, 293

STOWELL, LORD

63,

358, 363 medical incomes, on, 310-311 trade union methods, on, 221, 223 W E L L I N G T O N (1st Duke of), 43

WLLDEBLOOD,

39

366

public attitude to insurance ridiculed by, 355

WILSON,

338n.

WOODROW,

Conservative hostility to, 74 TAWNEY, R . H . ,

19

WOOD, SIR KINGSLEY,

on equality, 14—15 THOMPSON,

WOOLTON

WILLIAM,

TOWNSEND,

A.

DE

WOOTTON),

(Comte), 172

PETER,

poverty, problem of measuring, 358359 TREVELYAN, S I R C . E . , TREVELYAN, G . M . ,

327

272,

L O R D (judge), right to strike, on, 242-243 trade union closed shops, on, 232

WRIGHT,

M . , 5 0 , 323, 327n. on Trade Disputes Act of 1927...55, 56

YOUNG, G .

327

Liberal convert: The Bertrams 43

379

on Royal Commission Reports, 272n.

323

on Tafj Vale decision, 106 TROLLOPE, ANTHONY,

300

W O O T T O N OF A B I N G E R , BARONESS (BARBARA

on distribution of property, 16

TOCQUEVILLE,

154,

(1st Viscount), 368

quoted, ZBOROWSKI, M . ,

316n.

SUBJECT INDEX ABORTION LAW REFORM ASSOCIATION, 2 8 4 ACTS OF PARLIAMENT,

Agriculture Act, 1 9 4 7 . . . 1 3 6 - 1 4 0 Coal Mines Regulation Act, 1 9 0 8 . . . 2 1 9 , 222 Criminal Justice Act, 1948...267, 276 Crown Proceedings Act, 1947.. .204-205 Education Act, 1902...320, 325, 328331 passim, 332-333 Education Act, 1944...331, 336-340 passim Elementary Education Act, 1870...325, 328-329 Emergency Powers Act, 1920...255 Finance Act, 1894...66, 124, 153 Franchise Reform Acts, 42, 44, 45, 76, 221, 222, 267, 286, 351 Homicide Act, 1957...278-279 Housing, Town Planning, etc., Act, 1909... 126, 127, 128 Monopolies and Restrictive Practices (Inquiry and Control) Act, 1948... 180-184 passim, 192 National Health Service Act, 1946... 299, 300, 314-317 passim National Insurance Act, 1911...52, 53, 75, 82, 120, 215n., 219, 259, 299, 300, 301, 306, 312-314, 328, 351, 354-355, 356-361 passim, 366, 375 National Insurance Act, 1946.. .243-244, 259, 356, 359 Old Age Pensions Act, 1908...52, 66, 219, 351-354, 355-357 passim, 363 Parliament Act, 1911...42, 53, 55, 76 Restrictive Trade Practices Act, 1956... 184-190 passim, 192 Trade Boards Act, 1909...215n., 219, 247, 250, 366 Trade Disputes Act, 1906...52, 54, 56, 67-68, 106-107, 216, 220, 375 Trade Disputes and Trade Unions Act, 1927...55, 56, 217-218, 229, 231, 255-256, 368 Trade Union Act, 1871... 104-105, 106, 108, 215n., 221n., 373 Trade Union Act, 1913...56, 216n., 218n., 220, 260n. mentioned, 42-48 passim, 52-56 passim, 59-62 passim, 66, 77, 104, 110, 117, 124-132 passim, 138, 140, 143, 144, 145, 150, 153, 156, 158-168 passim, 173, 174, 179, 182, 204, 210-211, 215-218 passim, 221-229 passim, 233-238 passim, 243-258 passim, 261, 262, 266, 267, 275, 276,

ACTS OF P A R L I A M E N T — c o n t .

279, 280, 286-292 passim, 304, 319, 320, 359, 361, 365, 366, 370, 372, 376, 386 ADMINISTRATIVE

LAW,

administrative tribunals, courts, relation to, 207 Franks Committee on, conclusions of, 206-207 terms of reference, 206 Standing Council on, 207 variety of, 205-206 as law relating to public administration, 200-201 Crown Proceedings Act, 1947, defects of, 204-205 development of, 202-214 passim Dicey's hostility to, 193-194, 195-196 droit administratif, 193-194 confusion with légalité, 201-202 expansion of, reasons for, 202 French Administrative Courts, function of, 195 Hewart's distaste for, 196, 198 misconceptions of, 193-202 passim need for, 197-199 public administration, judicial review of, decline in, reasons for, 203-204, 207-208 hospitals, liability to patients, 209213 judicial self-limitation and, 204, 208209 need for effective system of, 213-214 scope and nature, changing views on, 199-202 See also STATE A C T I O N . ASSOCIATION, R I G H T

OF,

government contracts and, 230-231 monopoly, danger of, and, 175 trade unions, 104-105, 113, 229-231, 370, 389 mentioned, 107, 216 ASSOCIATION

FOR

CONSUMER

RESEARCH,

158-159 ASSOCIATIONS,

"contract medical practice" and, 306, 308-309 law of, defects in, 113-115 sui generis, absence of, 114-115

Subject Index ASSOCIATIONS—cont.

membership, exclusion from, 109-113, 260, 371372 regulation by statute, 110, llOn. non-occupational, and public policy, 111-113 occupational, 109-111 place of, in Utilitarian thought, 103— 104 relation of, to own members, 105, 107-113 State interference in, changed attitude to, 18-19, 113 trade unions, 104-109, 114 universities as, 114n. See also LABOUR L A W ; T R A D E U N I O N S .

B R I T I S H E M P L O Y E R S ' CONFEDERATION, 230,

240,

CLASS,

bias of judges, 241-242 composition of armed services, 70-71 consciousness, employee shareholding and, 384 differences in conditions of employment, 383384 in experience of and attitudes to education, 324-346 passim in organisation of medical care, 308 middle, attitude to, health, 316 trade unions, 260 labour law and, 223 medical care of, 306-308, 312, 317, 318 mentioned, 216 origin of non-manual workers, 248 system, impact of reform on, 93-94 Liberal Party and, 68-70 socialism and, 79-80 working, health, 304-305, 314 housing, 132 improved conditions of, 91-92 medical care, 306-308, 312, 313, 317, 318 motives for saving, 350 social security and, 347-355 passim, 357-358 support for Labour Party, 84-85 mentioned, 42, 46

225,

252

B R I T I S H M E D I C A L ASSOCIATION,

299, 306n.,

310, 312, 318n. B R I T I S H STANDARDS INSTITUTION,

158

BUSINESS,

accounts, disclosure of, 149 acquisition of shares in by State, 8890, 147-149 Board of Trade, role of, 150-151 changed conditions of, 143-144 contracts, commercial frustration, doctrine of, 164-165 exclusion clauses, 163-164 re-interpretation by courts, 163-166 standardisation of, 161-163 incorporation, mode and incidence of, 144-145 organisation, changes in, 144-151 political opinion, influence of, on, 146-147, 149, 150 public control, methods of, 18-19, 8789, 90, 147-151 publicly owned, trade unions and, 8990, 384-388 passim size increase, reasons for, 146-147 stock exchanges, 150 See also M O N O P O L Y ; STATE PLANNING

COLLECTIVISM,

collective action, as preference for, 220 in criminal law, 266, 267 in education, 319-320 in health, 301-302, 313 in labour law, 219-221, 251 in social security, 354 individualism and, validity of antithesis questioned, 19, 220-224, 300306 passim, 313-314, 366-367 laissez-faire and, 113 Liberal, limits of, 67-68 moral atmosphere, as type of, 121 pluralism and, 226 power, regulation of, and, 18-19 socialism and, 79 See also E Q U A L I T Y ; F R E E D O M ; I N D I V I -

CONTROLS. BUSINESSMEN,

declining interest in commercial law, 144 arbitration, attractions of, 170 codification, 166-167 implications of, 171-172 law reform, 167-168 litigation, distaste for, 169 reasons for, 168-169 settlement out of court, 170-171

CHANGE,

SOCIAL.

See

under

DUALISM; PHICAL STATE COMMERCIAL

LAISSEZ-FAIRE; RADICALISM;

ACTION; LAW.

TIONS; BUSINESS; COMMITTEE

COMMUNISM, SOCIAL

CHANGE .

398

OF

PRINCIPALS,

PHILOSOSOCIALISM;

UTILITARIANS.

See under

ASSOCIA-

MONOPOLY.

VICE-CHANCELLORS

321n., 335n., 341

AND

Communist Party, formation of, 85 double standard of morality in, 22-23

Subject Index CONTRACT, FREEDOM

COMMUNISM—cont.

education as cure for, 325-326 effects on democratic thought, 22-26 gradualism and, 90-91 labour movement and, 85-86, 373-374 Marxism, 30, 80, 81, 82, 367 mentioned, 140, 141 CONSERVATIVE,

Party, as national party, 47-49 experience of office, 49 fondness of coalitions, 48-49 relations with trade unions, 368-369 tradition of acquiescence, 52-62 mentioned, 367, 383, 384 policy, administrative law, 198-199 education, 336 housing and rent control, 132-133 "mixed economy," 149 nationalisation, 54 reform of franchise, 42-45 passim, 55-56 reformative legislation, 52-53 Second Chamber reform, 42, 53, 54, 55, 61 Trade Disputes and Trade Unions Act, 1927...55-57 Ulster, 51-52 tradition, Bonar Law on, 52 Cecil, Lord Hugh, on, 58 complexity of, 46-47 conservatism defined, 57 costs of war and, 45 Disraeli on, 47 Hailsham on, 60 importance of, 42-62 passim " N a t i o n a l " policy: criteria of, 51, 53-55 non-political emphasis of, 49-51 Percy, Lord Eustace, on, 49, 51 principle v. expediency, and, 43-44, 53-54 property rights in, 55, 59-61 Salisbury on, 44 social change, effects of, on, 42—47, 57-58 Trollope on, 43 Utley, T . E., on, 50 Young, G. M., on, 55 CONTRACT,

FREEDOM

OF,

decline of, 161-166 doctors' experience of, 306, 308-309, 314 full-employment policy and, 257-259, 376-379 passim hire purchase and, 162-163 in employment, 253

OF—cont.

limitation of, by courts, 163-166 by statute, 161-163, 254-255 grounds for, 6 J. S. Mill on, 9 membership of associations and, 110111, 114 right to strike, 255-257, 378-379. See also L A B O U R L A W . mentioned, 104, 107n., 143, 217 See also R I G H T S . CONTRACTS. See under B U S I N E S S . CRIMINAL

LAW,

as moulder of public opinion, 267-268 capital punishment, 277-279 child-killing, 279 collectivism and, 266, 267 corporal punishment, 276-277 Criminal Justice Act, 1948...267, 276 foreign comparisons, 268, 278, 281 Homicide Act, 1957...278-279 homosexual offences, public opinion on, lack of accurate knowledge of, 270271 need for research into, 273 views about state of, 268, 269-270 incest, 275 morals and religion, relation to, 273275 motoring offences, 280 penal reform, factors influencing, 283285 prison and prison labour, 282-283 psychiatry and, 276-277 public opinion and, 267-271, 273, 274285 sentencing policy, factors influencing, 280-282 sexual offences, increasing leniency of penalties for, 269 suicide, attempted, 279-280 " W o l f e n d e n " Report, 268, 277, 281 government decision on, 271 serious defects of, 272-275

DEMOCRACY,

advent of, in Britain, 76 industrial, 18-19, 23-24 industrialisation and, 24—26 Philosophical Radicalism and, 39-41

DUTIES.

See under

RIGHTS.

EDUCATION,

" Bryce " Commission, 328, 329n., 330, 332 " Clarendon " Commission, 326 class differentials, reasons for, 342 differences in intelligence, 331-332 different attitudes to education, 332334 economic factors, 331

Subject

Index

EDUCATION—cont.

EDUCATION—cont.

collectivism in, 319-320 Early Leaving Report, 332n., 340n., 342, 344n. Education Act, 1944...331 background to, 336-337 selection, effects of, 338-342 Educational Reconstruction, 339, 341, 345 elementary, 320-321 aims redefined, 329-330 Education Act, 1902...320, 325, 328331 passim, 332-333 Elementary Education Act, 1870... 320, 325, 328-329 functions ascribed to, 324-326 motives for expansion, 328-329 " F l e m i n g " Committee, 323n., 326 foreign influences on, 323-324 functions ascribed to, by political parties, 336 grammar schools, 320, 322-323, 326, 339 occupational recruitment and, 333336 " H a d o w " Committee, 336-337 historical survey, 320-322 moral, and Utilitarianism, 33-37 non-traditional character, 322-323 ' ' Norwood ' ' Committee, 337 pain and, 316 professions, growth of, 326-328 public opinion on, 324-328 passim, 332-334, 336, 338-339, 342-343 public schools, 320, 322, 323, 326, 333, 335 effects of 1944 Act on, 338-339 rapidity of change in, 322 recent charges, background to, 336-338 scholarships, 330, 331 secondary, 320-321 Education Act, 1902...320, 325, 328-

' ' Taunton ' ' Commission—cont. scholarships for, provision of, 330 students, social background of, 340341

331 passim, 332-333 functions ascribed to, 326 motives for expansion, 328-329 scholarships for, provision of, 330 universal, motives for, 336-337 social class and, 324-346 passim social selection through, 330-336 Socialist aims in, 84, 93 " Spens " Committee, 336, 337n. ' ' Taunton ' ' Commission, 326, 327, 328, 330 technical, 332-333, 334, 337, 343, 345n. tripartism in, 336-337 university, 321-322, 323 employment opportunities and, 335— 336 functions ascribed to, 326-328 middle-class bias of, 342-346 passim purposes, need for review of, 340

EQUALITY,

common law notion of, 261 defined, 6 in family relations, 286-288, 289 in property, 13-14 liberal socialist view of, 14—15, 18-19 liberty and, 15 national wage policy and, 379-380 problem of incentives and, 13-19 passim property rights and, 12-14, 15-18 redefined by Philosophical Radicals, 31 socialist view of, 79-80, 93-94 See

also

FREEDOM.

FABIAN SOCIETY,

land, uninterest in, 123-124 mentioned, 80, 82, 199 FAMILY L A W ,

adultery, 288, 290, 291-292 definition of, 293 American comparisons, 290 artificial insemination, 295 children, adoption, 289 " in care," 288-289 legitimacy, 288 cruelty, definition of, 293-294 desertion, definition of, 294 judicial opinion on, 291-294 marriage, age of valid, 288 matrimonial causes, adultery, judicial discretion on, 292 custody of children, 288, 291-292 domicile and, 289-290 foreign decrees, recognition of, 292293 grounds for, 290 position of women, 286-287, 288 press publicity and, 290-291 position of women, custody of children, 288, 291-292 dissolution of marriage, 286-287, 288 in public life, 287 property rights, 286, 289 public opinion on, 289, 291, 294-295 Scottish comparisons, 287, 295 FASCISM,

democratic thought, effect on, 21-22 mentioned, 141 FREEDOM,

conditions for individual, changed conception of, 198-199, 213-214, 225, 259-260, 261-262, 313-314, 317-318 equality and, 6, 300 rapid industrialisation and, 24-26

Subject Index FREEDOM—cont.

redefined by Philosophical Radicals, 31 See also EQUALITY.

INDUSTRIAL RELATIONS—cont.

General Strike, effects of, on, 368 in nationalised industry, 384-388 industrial democracy, 1 8 - 1 9 , 2 3 - 2 4

GARDEN CITY ASSOCIATION, 126 GENERAL MEDICAL COUNCIL, 112 GREATER LONDON REGIONAL COMMITTEE, 129

PLANNING

HEALTH,

changing concept of, 299, 302, 304, 314,

315-316

housing and, 126, 304 poverty and disease, inquiries into, 348, 350-351,

358-359

public opinion on, 302-305 3 0 9 - 3 1 4 passim, 315-317 working-class, 3 0 4 - 3 0 5 , 314 See also MEDICAL CARE; SECURITY. HOUSING.

See

under

passim,

virtues o f , 3 8 7 - 3 8 8 respect for law a n d , 2 2 6 - 2 2 7

State, neutrality of, in, 243-244, 366 strikes, regulation of. See under LABOUR LAW.

trade

union

methods.

See

under

TRADE UNIONS.

mentioned, 216, 218 See also LABOUR LAW; TRADE UNIONS.

SOCIAL

LAND LAW.

See

under

INDIVIDUALISM,

as type of moral atmosphere, 121 political, distinguished from sociological and methodological, 3-4 doctrinal roots, 5 historical setting, 4-5 Liberalism and, 6 6 - 6 8 , 75, 76

organic view of society and, 4 personal rights and, 5 survival of, 113 in industrial relations, 219, 225, 253-263

theory modified by experience, 11—12 Utilitarianism and, 8 - 1 0 , 12-13,

INDUSTRY. See under OWNERSHIP.

BUSINESS;

PUBLIC

INSTITUTION OF CIVIL ENGINEERS, 161

HOWARD LEAGUE FOR PENAL REFORM, 2 7 8 , 284

INDEPENDENT LABOUR PARTY. SOCIALISM.

employee shareholding, 384 workers' control, 385, 387 lawyers, small contact with, 260-261 Ministry of Labour, 366, 378 present system, special features of, 262-263

INTERNATIONAL LABOUR 230, 231, 246

JUDGES.

See

under

JUSTICE, SOCIAL. JUSTICE.

ORGANISATION,

LAWYERS. See

SOCIAL

under

LABOUR,

movement, anti-capitalism of, 82 Communism and, 85-86,

373-374

economic conditions, implications for, 9 1 - 9 2 First World War and, 83 international connections of, 80-81 Labour Party growth, effects of, in, 92-93 parliamentarianism

and, 82,

83-84

15-

revolutionism in, 82, 95 syndicalist influence in, 82 trade unions and, 82, 83, 85, 224,

See also COLLECTIVISM; LAISSEZ-FAIRE; PHILOSOPHICAL RADICALISM; SOCIALISM; STATE ACTION; UTILITARIANS.

Party, agricultural legislation, 136-140 gradualist Socialism of, 82-91 housing legislation, 131-132 Labour and the New Social Order,

18 sociological, State absolutism and, 4

INDUSTRIAL RELATIONS,

Board of Trade, 365 collective bargaining, freedom of, economic implications of,

376-380

industry-wide, reasons for, 381-382 narrow scope of, 382-383 origins of system, 365-366 recent improvements in, 369 foreign comparisons, 372, 377, 378, 381-382,

387

367, 368, 375

8 3 - 8 4 , 86, 87,

134-135

legislative programme of, 84, 86-89 National Health Service, 317 opinion on, administrative law, 199 housing and rent control, 132-133 land-use planning, 130 origins of, 81 parliamentary growth of, 82-84

G.T.T.

26

Subject Index LABOUR—cont.

Party—cont. policy on, education, 336 land nationalisation, 134-135, 139 methods of public control of industry, 87-89, 90 public ownership, 84, 86-88, 92, 94-95 State acquisition of shares in business, 88-90, 147-149 relations with, Communist Party, 141 Liberal Party, 81-82, 83, 84 trade unions, 368, 375 social services and, 86, 91 State planning controls and, 155 mentioned, 202, 355 See also S O C I A L I S M .

LABOUR

LAW,

American comparisons, 227-232 passim, 240-244 passim, 254, 262-263 arbitration, compulsory, 256, 378 tribunals, 239-240 " collectivism " in, 219-224 passim, 251253, 366 " common employment " doctrine, 261262 Continental comparisons, 235-236, 237, 238, 239, 244, 252, 262-263 Emergency Powers Act, 1920...255 employers' liability, 261-262 full-employment policy and, 257-259 historical survey of, 215-216 judicial opinion on trade disputes, 240-243 Labour Exchanges Act, 1909...257-258, 366 law of contract and, 263 lawyers' contribution to, 260-266 lockout, freedom of, 256-257 National Insurance Act, 1911...259 National Insurance Act, 1946...259 paradoxical stability of, 216-219 public opinion and, 229-233 passim, 236-244 passim, 249, 252-262 passim statutes, modern, function of, collective bargaining, filling of gaps left by, 249-250 State intervention, function of, 252 Trade Boards Acts, 250 wage regulation, 250-253 protective standards, extension of, to non-manual workers, 245-246 farm-workers, 248-249 hours of work, 246-247 juvenile employment, 246-247 minimum wages, 247-248 reasons for, 248-249 social insurance, 247 volume and scope of, 244-245

LABOUR

LAW—cont.

strike, freedom to, 226-227, 242-243 compulsory arbitration, 256-257, 378-379 Emergency Powers Act, 1920...255 Trade Disputes and Trade Unions Act, 1927...255-256 Taff Vale decision, 106, 241-242 Trade Boards Act, 1909...366 Trade Disputes Act, 1906...216, 220, 375 Trade Disputes and Trade Unions Act, 1927...217-218, 229, 231, 255-256, 368 Trade Union Act, 1871...104-105, 106, 108, 215n., 221n., 373 Trade Union Act, 1913...220, 260n. trade union methods and. See under TRADE

UNIONS.

trade unions, legal status of, 104-105, 108-109, 373 liability for tort, 106-107 See also A S S O C I A T I O N , R I G H T O F ; I N D U S TRIAL

RELATIONS;

TRADE

UNIONS.

LAISSEZ-FAIRE,

collectivism and, 113 in contracts, 162, 166 in industrial relations, 219 Liberals and, 66 two meanings of, 223-224 Utilitarianism and, 8, 10 mentioned, 101, 102, 103 See also C O L L E C T I V I S M ; ISM;

PHILOSOPHICAL

SOCIALISM;

STATE

INDIVIDUALRADICALISM;

ACTION;

UTILI-

TARIANS. LAND

LAW,

Agriculture Act, 1947... 136-138 legal implications of, 138-140 complexity of subject, 117 events influencing view of, 140-142 housing legislation between wars, 7677, 131-132 political opinion on, 132-133 Housing, Town Planning Act, 1909, defects of, 127 land nationalisation, opinion on, 123— 124, 125, 133-135, 139 legalism in interpretation of, 118-119 scope defined, 116-117 statutory powers and, 119-120 Town ana Country Planning, agricultural land, 124-125 architects' narrow view of, 129-130 associations interested in, 127, 129 background to, 122-124 " Barlow " Report, 140 changing motives for, 125-127 disappointing history of legislation on, 127-128 Labour Party view of, 130 " Scott " Report, 140 " U t h w a t t " Report, 140

Subject Index LAND L A W — c o n t .

LIBERALISM,

unpleasant associations of, 116 See also P R O P E R T Y .

L A N D NATIONALISATION S O C I E T Y ,

126

LAW,

contact with business, decline of, 171— 172 differentiation of, 194-195 function of, 99-100, 103 public opinion, reciprocal influence on, 267-268 reform, Utilitarian view of, 101-103 respect for, 226-227, 373 See also ADMINISTRATIVE LAW; ASSOCIATIONS;

BUSINESS;

LAW;

FAMILY

LAW;

LAND

LAW;

SECURITY;

CRIMINAL

LABOUR

MONOPOLY;

STATE

PLANNING

LAW; SOCIAL CON-

TROLS. LAW SOCIETY,

112

LAWYERS,

capital punishment, view of, 278 commercial law reform, role in, 167— 168 contribution to labour law, 260-263 education of, 328 effect of legal training on, 118 ill-repute of, 116 industrial relations, isolation from, 260-261 judges, class bias of, 241-242 conservatism of, 280-281, 291 environmental influences on, 120 LIBERAL,

ambivalence towards imperialism, 7273 influence through literature, 64 Party, anti-aristocratic bias, 69-70 anti-militarism, 70-74 passim constitutional reform by, 76 friendly societies, links with, 354 Gladstone's impact on, 65-66 historical growth, 64-66 Labour movement, and, 81-82, 83, 84 political influence, 63-64 redistributive policies, 66, 67, 75-76 social composition, 68-70 trade unions and, 67-68, 376, 383 Ulster and, in 1914...72 philosophers, absence of, 78 policy, defence, 71-72 housing, 76-77 international affairs, 73-74 land nationalisation, 134 reforms and administrative law, 202

class antagonism and, 68-70 Commonwealth, and, 77-78 monopoly and, 67 philosophical radicalism and, 34-38 Socialism, compared with, 66-67

M A G I S T R A T E S ' ASSOCIATION, 2 7 6 ,

See under

MARXISM.

MATRIMONIAL CAUSES.

284

COMMUNISM.

See under

FAMILY

LAW. MEDICAL

CARE,

" Battle of the Clubs," 308 collectivism and, 300, 301-302, 313, 318 contract medical practice, basis of, 306 costs and scope of, 306-307 doctors' objections to, lack of freedom, 308-309 " Secret Remedies," 310 standard of living, 310-311 limitations of, 307-308 " family doctor," newness of term, 307308 general practitioners, effects of 1911 Act on, 312-313 emergence of, 303 system of work before 1911...306308 abuses in, 312 dissatisfaction with, 308-311 law, changes in, factors influencing, changed attitudes towards health, 315-317 costs of care, 303 Labour Government, 317 medical opinion, 308-312 psychological knowledge, 302, 315— 316 Royal Colleges, 317 scientific advances, 302-303, 314, 315 Second World War, 317 sociological findings, 303-304, 314 South African War, 304-305 "Secret Remedies," 310 State intervention in, background to professional suspicion of, 306-312 circumstances favouring, 302-305, 313-314 Dicey's objections to, 301 National Health Service Act, 1946... 299, 300, 314-317 passim National Insurance Act, 1911...299, 300, 301, 306, 312-314 See also H E A L T H ; SOCIAL S E C U R I T Y . MIDDLE CLASS. See under C L A S S . MONOPOLY,

antiquity of, 173-174 " Collective Discrimination " Report, 183-184 resale price maintenance, 185-186

Subject Index MONOPOLY—cont.

common law attitude to, 174 Crown, 173-174 defined, 173 " G r e e n e " Committee, 179 growth of, 179 " Lloyd-Jacob " Committee, 185-186 Monopolies and Restrictive Practices Act, 1948...180-184 passim, 192 Monopolies and Restrictive Practices Commission, 180 conditions for reference to, 180-181 constitution of, 181-182 findings of, 183, 188-189 procedure of, 182-183 Monopolies Commission, The, 185, 192 neglect of, in nineteenth century, 174175 opinion on, 190-192 Profiteering Acts, Committees under, 179 restrictive practices, defined, 173 judicial encouragement of, 176-178, 241 motives for, 176 opinion on, 367, 380-381 trade associations, growth of, 178— 179 trade union, 380-381 Restrictive Practices Court, agreements, grounds for recognition, 184, 189-190 constitution of, 187 findings of, 189n., 192 procedure of, 188 Register of Agreements, 186-187, 188 resale price maintenance, 187-188 Restrictive Trade Practices Act, 1956... 184-190 passim, 192 State intervention against, 9, 10 Trusts, Committee on, 179 See also B U S I N E S S .

NATIONAL

CAMPAIGN

FOR

THE

ABOLITION

OF C A P I T A L P U N I S H M E N T , 2 7 8 , NATIONAL FARMERS' U N I O N , NATIONAL

HEALTH

MEDICAL

135,

SERVICE.

284

136,

See

137

under

CARE.

NATIONAL HOUSING REFORM COUNCIL, NATIONAL T R U S T ,

127

127

N A T I O N A L U N I O N OF M I N E W O R K E R S ,

See

NATIONALISATION.

under

387 PUBLIC

OWNERSHIP. NATURAL

RIGHTS.

NAZISM.

See under

NEW

TOWNS

See under

GROUP,

FASCISM. 129

RIGHTS.

OPINION,

See

PUBLIC.

under

PUBLIC

OPINION. OWNERSHIP,

PUBLIC.

See under

PUBLIC

OWNERSHIP.

PARLIAMENT, OF

ACTS

See under

OF.

ACTS

PARLIAMENT.

PHILOSOPHICAL

RADICALISM,

association, right of, and, 104 "commercial" character of theory, 41 democratic politics and, 39-41 double standard of morality and, 38 Hume's moral theory and, 31-32 intellectual legacy of, 27-41 passim Liberalism and, 34-38 manipulation of wants and, 36-37 self-realisation and, 34-35 social adjustment and, 35 See also C O L L E C T I V I S M ; I N D I V I D U A L I S M ; LAISSEZ-FAIRE; ACTION;

PHILOSOPHICAL

SOCIALISM;

STATE

UTILITARIANS. RADICALS,

alleged superficiality of, 39-41 argumentative rigour of, 29-30 compared with Locke, 38 greatest happiness principle of, 32-33 reformulated, 33-35 imagination, lack of, 31 linguistic purifiers and innovators, as, 28-29 practical theorists, as, 27 questions asked by, 30 reformers as well as moral theorists, as, 32

POLITICAL

See

under

STATE

ACTION.

INDIVIDUALISM.

INDIVIDUALISM. POWER, STATE.

See under

PROPERTY,

equal distribution, 13-14 lawyers' concept, 114, 118-119 political rights and, 61 private, personality and, 6-7, 17-18 rights of, Conservatism and, 59-61 equality and, 12-14, 15-18 grounds for restriction of, 6-7 liberal socialist view of, 14-15, 1819 Liberals and, 67 married women's, 286, 289 Socialist view of, 79-80 State regulation of, opinion on, 140142 statutory encroachment on, 119-120 mentioned, 55 See also P U B L I C O W N E R S H I P .

PROPERTY, LAND

REAL, LAW.

LAW

OF.

See

under

Subject PUBLIC ADMINISTRATION. MINISTRATIVE L A W . PUBLIC

See under

AD-

OPINION,

better knowledge of, need for, 266, 270-271, 273 centripetal tendency of, 225 changing concept of, 264-266 Dicey's analysis disputed, 220-227 passim education of, need for, 274-275 law, reciprocal influence on, 267-268 legislative, growth of, 121-122 types of, 224-227 passim on, administrative law, 193-199 passim commercial law, 166-172 compulsory labour, 253-254 criminal law, 267-271, 273, 274-285 education, 324-328 passim, 332-334, 336, 338-339, 342-343 employers' liability, 261-262 family law, 289, 291, 294-295 health and medical care, 302-305 passim, 309-314 passim, 315-317 housing policy, 131-133 industrial relations, 218-219 labour law, 220-233 passim, 236-244 passim, 249, 252-262 passim land nationalisation, 133-135, 139 land-use planning, 122-124, 125— 128, 129-130 monopoly, 190-192 private business, 146-147 social security, 348-352 passim, 355, 357-359, 363 State planning controls, 151-152, 153, 158-159 State regulation of property, 140-142 trade unions, 216 " p a t e r n a l i s m " of Dicey's concept of, 264-266 respect for law and, 226-227 mentioned, 103

PUBLIC

OWNERSHIP,

by State, of shares in business, 88-90, 147-149 forms of, 18 industrial relations and, 384-388 Labour Party programme for, 84, 8687, 92, 94-95 Liberal attitude to, 67, 81 of land, 123-124, 125, 133-135, 139 Socialist case for, 87-88 unfair contracts and, 162 See also PROPERTY.

RADICALISM, PHILOSOPHICAL. See PHILOSOPHICAL RADICALISM.

under

See

under

REAL

PROPERTY,

LAND L A W .

LAW

OF.

Index RESPONSIBILITY, SOCIAL,

for accident risks, 261-262 for conditions of life, growth of idea, 11-12 proper scope of, 357-360 passim, 362-363 for health, 305, 312, 317-318 RESTRICTIVE PRACTICES. See under M O N O POLY. RIGHTS,

community as possessor of, 5-6 conditions for effective exercise, 18-19 conflict between, 6 defined, 5 ethical universalism and, 7-8 legal, and moral, 8 defined, 5 moral, defined, 5 natural, political individualism and, 5-8 subordination of politics to ethics and, 7-8 mentioned, 29, 31 personal, Liberal doctrine and, 66 political individualism and, 5-8 political extension of, 7, 76 self-subsistence denied, 6-7 validity of, 8 See also ASSOCIATION, R I G H T O F ; CONTRACT, FREEDOM O F ; EQUALITY; FREEDOM; LABOUR L A W ; PROPERTY. ROYAL

COLLEGE

OF

GYNAECOLOGISTS,

OBSTETRICIANS

ROYAL COLLEGE OF PHYSICIANS, 3 1 7 , ROYAL COLLEGE OF SURGEONS, ROYAL COMMISSION

AND

317, 342n. 327

317, 342n.

REPORTS,

nature and effect of, 271-272 ROYAL INSTITUTE OF BRITISH

ARCHITECTS,

127, 129-130, 161 SCHOOL OF C I V I C D E S I G N ,

127

SOCIAL C H A N G E ,

deliberately induced, 24-26 discontent as source of, 3 effect of, on political climate, 45-46

SOCIAL CLASS.

See under

CLASS.

SOCIAL JUSTICE,

Hobhouse's analysis of, 15 medical care and, 317-318 State, importance of, in creating, 11-12

SOCIAL RESPONSIBILITY. SPONSIBILITY, SOCIAL.

See under

RE-

SOCIAL SECURITY,

" B e v e r i d g e " Report, 358-359 family provision of, 349 friendly societies, 348-356 passim, 363

Subject Index SOCIAL

SECURITY—cont.

insurance companies, 349-354 passim Labour Party policy on, 86, 91 Liberal Party, links with friendly societies, 354 National Assistance, 347, 359 needs, minimum, definition of, 356, 358-359, 363 private collective provision of, 347-348 agencies concerned, 349-350 public opinion on, 348-352 passim, 355, 357-359, 363 State provision of, 347-349 passim background to, 349-352 contributory principle, 348, 352-356 passim, 359, 361-362 distribution of costs, 353, 360-362 family, place of, in, 356, 357-358 future of, 95, 362-363 interests concerned, 353-355, 363 level of benefits, 357-360 National Insurance Act, 1911...351, 354-355, 356-361 passim National Insurance Act, 1946...356, 359 Old Age Pensions Act, 1908...351354, 355-357 passim, 363 See also H E A L T H ; M E D I C A L C A R E .

STATE PLANNING

SURVEYORS'

TOWN

TRADE

as means to equalise freedom, 7 changing attitude to, 20-22 democratic government and, 23-26 ends and limits of, 19-20 extension of, 113 in Conservative thought, 49-51 Liberals as party, of, 66-67, 75-76 Mill, J. S., on, 9 need for, in industrialisation, 24-26 regulation and use of, 58-62 passim Sidgwick on, 10 See also C O L L E C T I V I S M ; INDIVIDUALLAISSEZ-FAIRE;

PHILOSOPHICAL

SOCIALISM;

OF

PARLIA-

COUNTRY

LAND

127

PLANNING.

UTILI-

TARIANS.

406

UNIONS,

See

LAW.

T O W N PLANNING INSTITUTE,

ACTION.

RADICALISM;

INSTITUTION,

AND

under

ACTION,

ISM;

ACTS

MENT.

achievements of, 93-94 ameliorative measures, effectiveness of, 91-92 collectivism and, 79 Communism and 90-91 defined, 79-80 dictatorship and, 21-22, 25-26 equality as principle in, 11-12, 93-94 future of, in Britain, 91-93, 94-96 Independent Labour Party and, 80, 81, 82 influence on company law, 149 "mixed economy" and, 88-90, 91 process, not system, as, 91 trade unions and, 224, 367 See also COLLECTIVISM; LABOUR; STATE

See under

STATUTES.

SOCIALISM,

STATE

CONTROLS,

banks, role of, in, 155-156 capital issues, 154, 155, 156 exchange control, 154, 155 fiscal, Dicey's view of, 153 fiscal and monetary, 152-155, 156-158 origins of, 152-153 physical controls, 155-156, 158-160 See also B U S I N E S S .

127

apathy in, 93 as pressure groups, 223 association, right of, and, 104-105, 113, 370 choice of union, right of, 372 closed shops, 105, 106, 107n., 108-109, 110, 230, 231-232, 260, 370 economic education, need for, in, 379 foreign comparisons, 370, 372, 373374, 377, 379-380 full-employment policy and, 257-259 General Strike, 367-368 incipient pluralism of, 226, 387-388 Insurance Act of 1911, support for, 366 membership, exclusion from, 260, 371372 methods, choice of, historical background to, 220-224 ideological influences on, 364, 367-369, 375 traditional pragmatism in, 221, 364 "collective laissez-faire," advantages of, 244 closed shops, 231-232 collective agreements, effectiveness of, 232-236 disputes, arbitration in, 238-240, 378 retreat of courts from, 240-243 State neutrality in, 243-244 joint consultation, 236-237, 375 need for law to maintain, 389 recognition, 227-229, 372, 386 right of association, 229-231 shop stewards' rights, 237-238 preference for ' ' collective laissezfaire ' ' by unions and courts, 223224, 366, 369, 370, 375 survival of individualist tradition in industrial relations, 219, 225, 253-263

Subject TRADE

Index TRADES U N I O N

UNIONS—coat.

middle class attitude to, 260 nationalised industries, in, 89-90 open shops, 370 organisation of, in Britain, extreme decentralisation, 371-374 number and size, 370-371 political relations, Communist Party, 373-374 Conservative Party, 367, 368-369 Labour Party, 82, 83, 85, 367, 368, 375 Liberal Party, 67-68, 366 recognition of, 227-229, 372, 386 relations of, to own members, 105, 107-109, 110, 114 representatives, statutory recognition of, 237-238 respect for law and, 226-227, 373 rules, violation of, 114, 373-374 strike, freedom to. See under LABOUR

UNIVERSITY GRANTS COMMITTEE,

RELATIONS; TRADES U N I O N

LABOUR;

CONGRESS,

General Strike and, 368

LABOUR

LAW.

344n.

UTILITARIANISM,

fundamental conflict in, 99 industrial organisation and, 16-17 political individualism and, 5, 8—10, 12-13, 15-18 UTILITARIANS,

ambivalence towards property rights, 12-14, 15-18 attack on legal system, 101 economic doctrines, 100 rationalism, 102 view of, associations, 103-104 function of law, 99-100 goods other than happiness, 17 harmony of interests, 99-103 law reform, 101-103 See also COLLECTIVISM; INDIVIDUALISM;

LAW.

views on economic policy, 375-381 passim education policy, 336 monopoly, 380-381 national insurance, 355, 366 national wages policy, 377-378 public ownership, 385 redundancy, 382-383 work, right to, 259-260, 375-376 See also ASSOCIATIONS; INDUSTRIAL

CONGRESS—cont.

mentioned, 225, 228, 230, 240, 252, 259, 366, 372, 374, 376

LAISSEZ-FAIRE; PHILOSOPHICAL RADICALISM; SOCIALISM; STATE A C T I O N .

VOLUNTARY SOCIETY,

EUTHANASIA 284

W O M E N , POSITION OF. LAW. W O R K I N G CLASS.

407

LEGALISATION

See under

See under

FAMILY

CLASS.