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State may facilitate, persuade, encourage; but it cannot attempt to dictate. It may establish means of conciliation and arbitration, but cannot order that they shall be used. Efforts to interfere with individual or corporate liberty of action, or that freedom of contract which is essential to sound commerce, have failed in the past, and must inevitably fail in the future. Attempts have been made to fix the price of labour or the condition of work by direct ordinance. They have never succeeded, and never will succeed. Freedom of contract is as much a condition of liberty as freedom of speech; but on the other hand the State would fail in its duty if it did nothing to facilitate methods of settlement of labour disputes either by the establishment of accessible tribunals or the encouragement of voluntary boards of con. ciliation. It may properly do much to perfect the machinery of settlement, though its power to insist on the use thereof is limited.
A recognition of this principle led to the passing of the Conciliation Act of 1896. And though neither time nor opportunity has been sufficient yet to give full experience of its working, the material exists for considering its effect. Tentative in its scope, and avowedly experimental in its objects, it would seem to have been tentatively and experimentally administered. . For in no one instance has its full power been brought into play, and what has been attempted has apparently been attempted with extreme caution.
The Act provides for the keeping of a register of conciliation boards (clause 1), and for the encouragement of conciliation boards (clause 4). But not only is registration not made compulsory, but the inducements to registration are not made strong. Consequently the advantages of registration are not so clear as to make the register exhaustive. In the second report of the Board of Trade made under the Act it was stated that in July 1899 the number of registered boards was nineteen. This would seem as though many firmly established conciliation boards, doing good work and making no secret of their existence, were not at pains to register, though perfectly ready to furnish information as to their operations. Even the clause (clause 4) providing for the encouragement of conciliation boards is worded with extreme caution. The Board of Trade may--if it appears that in any district or trade adequate means do not exist of having disputes submitted to an arbitration board-appoint a person or persons to confer . . . as to the expediency of establishing a conciliation board for the district or trade.'
16 Conciliation and Arbitration in Trail Disputes. Jan, The legislature in so far setting its approval to the establishment of conciliation boards has thus strictly limited the powers of the State Department to persuasion, and has carefully abstained from holding out even the semblance of a lure. Nevertheless the influence of conciliation boards has been such that in 1897 fifty-one boards were known to have settled cases.* Whether reliance can be placed on conciliation boards as a permanent means of settlement remains to be seen. But, inasmuch as the boards for the coal trade of Northumberland and Durban, which between them control the wages of about 120,000 miners, ceased for a time, at any rate, to operate in 1896, and another able and energetic board--the London Labour Conciliation and Arbitration Board-held only three meetings of the board and five of the executive committee in 1898, it would appear as though there was some limit to the period of usefulness of such bodies when operating alone.
The Conciliation Act further provides that the State Department may, when a difference exists or is apprehended, exercise all or any of the following powers. They may inquire into the causes and circumstances of the difference; they may take steps for the purpose of enabling the parties to the difference to meet together by themselves or their representatives under the presidency of a chairman mutually agreed upon, or nominated by the Board of Trade or some other body with a view to amicable settlement; they may, on the application of both parties to the difference, appoint an arbitrator; or--and herein is the strongest enactment of the legislature--they may, on the application of either employers or workmen interested, appoint a person or persons to act as conciliator or board of conciliation. And by a further sub-section it is provided that any person so appointed to act as conciliator is to communicate with the parties, endeavour to bring about a settlement of the difference, and report his proceedings to the Board of Trade. By this clause the legislature does several important things. It provides a machinery for ascertaining the facts of any existing or apprehended dispute-a useful step, when it is remembered how issues in any dispute with regard to which feeling runs at all high are apt to be blurred by unintentional misrepresentation, allegations coloured by sentiment, or statements of facts or figures imperfectly sifted or hastily compiled, and a step deliherately taken with the
* Report on Strikes and Lock-outs, C. 9012, 1898, p. Ixv.
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purpose of furnishing, should it become necessary, a trustworthy guide for parliamentary or public opinion. It also entrusts a State Department with the duty of endeavouring to persuade the parties to meet together under an agreed or nominated chairman, and it provides a simple machinery by which, when both parties so desire it, they can obtain with the least expenditure of time or money the appointment of an impartially chosen arbitrator. But it does more. It enables the Board of Trade, on the application of either party, to appoint a conciliator who is to endeavour to produce a settlement, and is directed to make a report,
Now let us see how these provisions can work, and how, as a matter of fact, they do work. Of the thirty cases in which, during the period covered by the second report of the Board of Trade, application was made under the Act to that Board, in five the application was refused, the circumstances not being such as to point to a probability of successful action; in two there was failure, one being the huge dispute in the South Wales and Monmouthshire coal trade; and in three settlement was effected by the parties pending the negotiations. Of the remaining twenty-two, four were settled by the appointment of a conciliator, in one of which the conciliator was subsequently requested by both parties to act as arbitrator; eight more were settled by the direct negotiation of the Board of Trade; and ten by the appointment of arbitrators, in nine of them gentlemen of high standing and impartial position being selected by the Board of Trade.
In estimating this record, the following points have to be borne in mind. The value of the direct action of a State Department is affected by two important factors. Its officers are limited in number, their personal qualifications are ascertainable without much difficulty, and whatever their action may be, the effect of that action in any case is not forgotten when a further opportunity for its exercise arises. In the second place, the department is under the direction of a political chief, and a party debate may at any moment arise in Parliament with regard to his adininistration. It is open to doubt, therefore, whether a statesman in active political life, or officers under his direct control, are qualified to discharge for a continuity the quasi-judicial functions of an arbitrator, or even those less judicial, but strictly impartial, functions necessary to successful conciliation. Lord Rosebery succeeded admirably on a well-known occasion. More recently, in France, M. Waldeck-Rousseau
VOL. CXCI. NO. CCCXCI.
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A S:ate Desaro-1: 2013 tenintare fireach from contigvei activa of its owo: ari: e repeated rescrrence of the entry "an oike Baric. Tra le arranged a • conference between the parties a: w. an a menent was “arrised at, while it accris tte er derde of rach tactful action and corcitiators resource in cases where parties were ready to avail :Lemselves tiereof, can Laris encourage the anticipation that in immediate inal aeroa is to be sought the most eficient machinery for termination or mitigating tra le disputes. In micor disputes indeed or those in which feeling does not run very hizh, it inay be of use to the parties to have easily accessible the services of officers of a State Department fully acquainted with the diffculties connected with labour questions, and ready to rerder impartial and judicious aid in the settlement of differences arising therefrom. If it becomes known that the suggestive powers of such Officers will be exercised without bias and with the resourcefuluess begotten of experience, the disposition to inake use of thein may grow, and disputants may take more and more advantage of a ready method for helping them to help themselves to peace. But this machinery is not likely to be serviceable in the large disputes where both sides are highly organised or where large numbers or wide districts are affected. In such cases a State Department can scarcely do inuch good by its own servants. If it attempts to act at all, it can only hope to do so successfully by the appointment of Home outride person of high position and undoubted authority. C'p to the present, experience of this method has not been much as to enable any true estimate to be formed of its value. It might happen that a large dispute lasted so long, became so embittered, and caused such widespread inisery und loss, that the public demand for an authoritative expression of opinion as to the rights of the case would be irresistible. In this event the appointment of an eminent and judicially ininded individual who would, in the event of bis failing to persuade the disputants to settle, bring the pressure of public opinion to bear by a careful report, might Fouve useful influence. The experiment, however, could only
be tried in the last resort; the fact that the report would be made by a person appointed by a member of the Govern. ment would be certain to let loose party criticism on its value; and there is nothing whatever to show that a debate in the House of Commons on such an issue has any tendency to lead to a settlement.
It would seem, therefore, that for influencing the course of great disputes, if any such should unhappily arise, the action of a State Department should be supplemented. And for this object there is a great deal to be said for the establishment of a central board representing the whole body of employers and employed who should act as a court of appeal, or of reference, from the judgements of local conciliation boards. We are well aware that the difficulties in the way of the constitution of such a body are very great. But they are not necessarily insuperable. The ramifications of trade methods are undoubtedly enormous. And at first sight it may be thought that there can be no community of interest sufficient to make either a body of employers on the one hand, or workmen on the other, work together. The details, for example, of a dispute in the cotton trade would differ so materially from the details in the engineering trade, the coal trade, or the boot trade, that there would be risk of failure in the attempt of a general body to deal usefully with any particular quarrel. But we do not think that dread of such risk should prevail. Details may and do vary. But there are principles of universal effect. Local conciliation boards may well deal with details. A general board might exercise a powerful influence in the application of principles; and it would undoubtedly command more confidence than a State Department, however ably officered.
An obstacle to the creation of such a board probably may be traced to the reluctance which many able and energetic employers even now feel to recognise trade unions or to negotiate with their leaders. As we have endeavoured to show, such reluctance cannot be permanently maintained. Trade-unionism is a factor which it is impossible to ignore. Employers would act far more wisely by turning its influence into proper channels than by efforts to crush it which must be futile.
The establishment of collective bargaining is an accom; plished fact. It behoves employers to do their utmost to produce from it good results rather than evil. Much of the small ignorance and local jealousy which tend to embitter trade disputes would be removed if there were a comprehen.