Scotland in the nineteenth century

10. Labour

Section 10.6: Labour law

"to inquire... whether any, and if any, what amendment or alteration in the provisions of those Acts, or either of them, is desirable, and also to inquire whether it is expedient to limit or define the law relating to conspiracy, either generally, or as affecting the relations of masters and workmen."

The first report related to the Master and Servant Act, 1867 only, and drew no conclusions whatever, but simply presented notes of cases and minutes of evidence.

Notes on cases: These related to ten Scottish cases, all but one being cases in which an employer accused his employee of breach of contract. In all nine cases the employee was found guilty and ordered to pay compensation or imprisoned. There was one case of wrongful dismissal brought by a ploughman against a farmer, and in this case, the farmer was found guilty and ordered to pay compensation. Interestingly, this same farmer brought a successful action against one of his employees during the following year.

Scottish evidence

Andrew Boa, stone mason and manager for a master builder, Glasgow (pp. 159-162) appeared as the representative of the Criminal Law Repeal Association, a committee of the Glasgow Trades Council which was pressing for the repeal of the legislation under consideration. He voiced complaints regarding clause 14 of the Master and Servant Act, making breach of contract a criminal offence, and contended that "... with the power and discretion which has been given to justices of the peace, a case too often unwarrantably assumes the character of an aggravated offence." Clause 9 also required amendment, as this gave magistrates the power to assess damages. Justices of the peace were often over zealous as a result of a lack of understanding of the law and being "a little moved by class views". He believed that questions of capital and labour should be judged by paid magistrates, rather than by local justices. Ideally, however, contracts of employment should be purely civil matters.

The Chairman pointed out that the longest sentence on record in Scotland for this category of offence was 60 days' imprisonment imposed by a paid magistrate.

For terms of reference see First Report, 1874. [C. 1094]

[page 228]

The Committee dealt first with the law relating to breaches of contract of hiring and service between employers and employees contained in the Master and Servant Act, 1867. The object of the Act was to subject disputes arising out of contracts between employers and their servants to the jurisdiction of the justices of the peace. The statute distinguished between simple breach of contract and cases where the breach was accompanied by circumstances of an "aggravated character".

Complaints were mainly directed against sections 9 and 14 of the Act. Many witnesses thought that mere breach of contract should be divested of all character of criminality. They recommended that the power of the magistrate to impose a fine under that section, where compensation could not be assessed, should be taken away.

Those who objected to section 14 of the Act included Andrew Boa, the President of the Glasgow Repeal Association, which was founded to secure the repeal of the Master and Servant Act, 1867 and the Criminal Law Amendment Act, 1871. He complained about the excessive cost of proceedings under the Master and Servant Act in Scotland, and testified to the strong feeling against the Act which existed in Scotland (pp. 7-8).

The Committee recommended that in all breaches of contract, summary jurisdiction should be of an entirely civil nature. They thought that the distinction between simple breach of contract and a breach accompanied by circumstances of aggravation should be maintained. They also recommended that the administration of the criminal clause in the Master and Servant Act should be left to the quarter sessions in England, Wales and Ireland and to the justices of the quarter sessions in Scotland, but the party complained against should have the option to be tried by jury.

The Committee then turned its attention to the law relating to interference by third parties in contracts between employers and employees, contained in the Criminal Law Amendment Act, 1871. This Act amended the criminal law relating to violence, threats and intimidation. Many complained about the Act and claimed that it was one-sided as it was very difficult to obtain evidence against masters.

Many witnesses also objected to the tribunals before which offenders under the Act were tried, saying that the judges were often prejudiced. It was thought that trial by jury or by a stipendiary magistrate would be a more satisfactory mode of trial.

The Criminal Law Amendment Act was intended to combat the attempts to coerce masters or other workmen by reprehensible means, at the instigation or with the sanction of trades unions. In some more powerful unions, men refused to work for masters who employed men who did not belong to the union, so they coerced masters to employ only men belonging to the union and compelled all these who belonged to the trade to become union members.

The Committee failed to see the analogy drawn by some witnesses between blacklisting by employers and picketing by workers, so they did not think black-listing should be encompassed by the Act. The Committee recommended that no person should be liable to be indicted for conspiracy on the grounds that he was a member of a union.

Alexander Macdonald, a member of the Committee, dissented from the opinions of the Committee. He was in favour of the total repeal of the Criminal Law Amendment Act, the repeal of section 14 of the Master and Servant Act and the alteration of the law of conspiracy.