Lyons v. Wilkins and the Right to Peacefully Persuade

Abstract

Trade-unionists have always accepted that picketing involving violence against people or property is unlawful but some jurists and politicians have sought to go further, contending that there is no such thing as lawful picketing. As a result of the decision of the Court of Appeal in J. Lyons & Sons v. Wilkins it became difficult to conceive of any form of picketing which could be both effective and lawful. This article offers a nuanced reading of Lyons and its place in the industrial conflict of the late nineteenth century, analysing divisions and ambiguities in the case law as it developed in response to employers’ recourse to the courts when confronted by peaceful and effective picketing. There was no linear relationship: judicial responses were mediated by a spectrum of factors, including the facts of particular cases, the values of individual judges and common law traditions of hostility to interference with free trade. Lyons is best understood as the conjunction of two groups or forces hostile to the unions. The first was alliances of employers, which sought to counteract the New Unionism by means of aggressive strikebreaking, ‘free labour’, and resort to the courts. The second was a deeply held view among some judges, which long predated the New Unionism, that virtually all trade-union activity, and certainly all picketing, constituted an unacceptable restriction of personal freedom