The Law behind the Law: Rookes v. Barnard [1964], the Common Law and the Right to Strike

Abstract

By the 1950s, given the scope of the Trade Disputes Act (TDA) 1906, the courts had little role in industrial relations. Hence the importance of the House of Lords decision in 1964 for Douglas Rookes that Alfred Barnard, John Fistal and Reginald Silverthorne had used unlawful means in threatening to strike to secure Rookes’s removal from the Heathrow design office of the British Overseas Aircraft Corporation (BOAC) after his resignation from the Association of Engineering and Shipbuilding Draughtsmen (AESD), because a threat to break a contract of employment came within the tort of intimidation which was unprotected by the TDA’s statutory immunities. Rookes illustrated the relevance of Laski’s view that in labour law the common law is ‘a law behind the law’. It was a harbinger of a new judicial activism that outflanked the TDA’s tort immunities by creating novel common law liabilities, and which in turn strengthened calls for statutory restriction and regulation of industrial action.