Settling Disputes: The Changing Face of English Law

Settling Disputes: The Changing Face of

English Law

Alan Milner *

INTRODUCTION

I shall take it for granted that social conflict is unavoidable.
The nature of social relationships is such that, although cooper-
ation must on the whole be the normal situation, competition
and hostility will remain inevitable. And yet although conflict will
fulfil several vital social functions, it will not remain unchecked, for
it seems to be equally inevitable that each society will generate its
own motivation to limit conflict. The chain of social reactions which
any conflict sets in motion is almost limitless, but all communities
try to contain them and to avoid at least its more immediate
damaging consequences. The general tendency in all conflict situa-
tions, as Schelling has stressed so clearly,’ is for regression from
hostility towards cooperation.

Disputes arising about legal rights and duties are fundamentally
the same as any other kinds of social disputes; the difference lies
merely in the fact that the social/economic/political technique we
choose to call the law has developed certain conventional machinery
for helping to settle them. When new kinds of disputes arise, we
must always ask whether this legal machinery is adequate to process
them, and in this paper I would like to concentrate on the basic
question of how far some of our more topical kinds of social
conflict can be controlled by the techniques of the law. Funda-
mentally, they are all old problems: for instance, nothing could
be older than quarrels between husbands and wives. Again, both
the control of disputes in industry and regulation of commercial
quarrels have a respectable history in earlier centuries. And racial
conflict in some form or other has been with us since the beginning
of recorded history. All four topics have, however, given us in En-
gland cause for special concern in the changing social, economic and
political conditions of the second half of the twentieth century.

* LL.B., Ph.D. (Leeds), LL.M. (Yale), M.A. (Oxon.), of Gray’s Inn, Barrister-
at-Law, Fellow of Trinity College, Oxford. This paper was presented in July
1973 at the University of Freiburg, Germany.

1 Quoted in J.H. Skolnick, Social Control in the Adversary System, (1967)

11 J. Conflict Resolution 52, 69.

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The view of law I shall take in this paper is not one that will be
very novel to any reader familiar with the tradition of Otto von
Gierke, Max Weber and Eugen Ehrlich. Ever since von Gierke’s
classic work on the inner ordering of the Genossenschaften over a
hundred years ago, jurists have been able to accept the concept that
multiple legal levels exist in all human societies. Each functioning
sub-group of society may be seen as having its own legal system: the
legal system within the family; the individual contract binding two
parties; or the ordering of the workshop by the rules of the manage-
ment, the union and the workers. Each contributes to and depends
upon the monolithic structure of the legal system of the State as
a whole.

My concern will be to examine rules and procedures at all
the levels of the structure of society, not only in terms of what
should happen but, as Ehrlich did, in terms of what does happen.
Whenever there are patterns of social control existing independently
of legal rules, I believe they should be incorporated into the study,
not only because they modify the actual operation of the formal
rules, but because they may have their own imperative force which
is just as strong as that of the formal rules. They become by con-
vention and usage yet another system of rules.

Let me illustrate this process with an example from commercial
law. If a dispute arises because a garage repairs a customer s car
badly, it may be resolved at many levels. The negotiations will in all
probability be carried on at first without reference to the contract;
complaint will be followed by excuse, rejoinder by compromise.
Much will depend on the relationship of the car owner and the
garage, for a valued and regular customer may get preferential
treatment over a transient who has suffered a breakdown. Similarly,
the size of the garage, the socio-economic status of the complainant
and the possession of the car and the repair-payment respectively
will all influence the outcome. Does the garage have a standard
practice for settling complaints? How far is the claim covered by
insurance?

At this point we begin to approach the second level, that of the
contract between them. Has the garage effectively protected itself
against the consequences of bad workmanship? More importantly,
whether it has or not, how far is it prepared to rely on exemption
clauses in the contract and if need be to bluff the customer into
thinking that it has greater protection than is really true?

The third stage comes with the involvement of an outside agency.
If what the garage will no doubt call “an amicable settlement”
cannot be reached, can the trade association bring about a settle-

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ment which will satisfy both parties? Or can it use its official
arbitration procedure in a last attempt to keep them from each
other’s throats?

Finally, what are the prospects of the case being taken to court
as a last resort? How close to the brink (or over it) is each side
prepared to go, considering their respective economic positions?
Will their solicitors advise that there is a “cast-iron case”? Or will
the law and the evidence seem uncertain to one of them? It is to
the techniques of settling disputes at these different levels that I
shall now turn.

THE TECHNIQUES OF SETTLEMENT

One technique of dispute settlement which I shall mention but
briefly is that of settlement by inertia. By this I mean that when a
dispute arises, one party to it, although recognizing the existence of
the dispute, accepts a situation unfavourable to himself and does
little or nothing about it. This is in all probability the most common
way in which disputes are “settled”. Such “settlement” sometimes
reflects an unwillingness to involve oneself in expense and trouble,
often results from individual personality problems, and occasionally
represents an unhappy adaptation to an unfair situation which is
healthy neither for the individual nor society as a whole.

For example, I was recently told with obvious cynicism by
a public relations officer in a large commercial concern that
customer inertia always operated in favour of the company. More
often than not, dissatisfied customers did not complain; if they did,
and received no reply for some considerable time, the chances were
better than 50% that they would take no further action. The com-
pany then treated the complaint as “settled”. Irresponsible policies
can therefore succeed in the short term, though of course in the long
term the public image of the company may suffer.

A second illustration comes from a recent Report of the Race
Relations Board.’ It pointed out that the Board regularly received
complaints of racial discrimination which were never followed up.
Humiliation and anger motivated the complaints in the first place
but having registered their protests, the complainants become un-
willing to make official charges or provide enough information for
the matters to be investigated. They were understandably reluctant
to re-live humiliating experiences, and. disillusioned because they
felt the Board could guarantee them no remedy. One must be wholly

2 Report of the Race Relations Board, 1969-70, paras. 67-68.

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sympathetic to this dilemma and yet at the same time wonder how
far the failure to pursue the complaint represents an adjustment to
discrimination which can only help to perpetuate that discrimina-
tion.

The “normal” techniques of dispute settlement are four, and one
can see them as forming a hierarchy corresponding to the level of
social interaction existing between the disputants. The first level is
negotiation, which simply involves the parties to the dispute trying
to resolve their differences by themselves, and in spite of the dispute
there is still intensive interaction between them. It is the failure of
this procedure and a lessening of the interaction that usually leads to
the second level of conciliation. Here a third party is introduced by
one or both of the disputants for the purpose of bringing them closer
together, sometimes to persuade one to accept the other’s argument
completely, sometimes to suggest a compromise, but normally to
act as an organizer of and participant in the continuation of the
negotiations. If conciliation fails, or is not used, the contestants will
proceed to arbitration or adjudication. They are normally alterna-
tives to each other, arbitration involving asking a mutually accept-
able third person to make a decisive order as to what they shall do,
and adjudication meaning taking the issue to a court for it to make
an authoritative decision. These techniques will normally only be
used when the relationship between the contestants has broken
down, and indeed it is highly likely that the procedures themselves
will encourage the further polarization of the parties. At the same
time, even at the level of arbitration and adjudication, the door will
normally be left open for conciliation to take place or for a settle-
ment to be negotiated.

It is the main hypothesis of this paper, though an obvious one,
that disputes are best settled at the lowest possible level, for three
reasons:

(1) The lowest level is always the cheapest and often the quick-
est, both of which are attractive characteristics of any
procedure in modern society.
In broader social terms, the least damage is done to the
community by a dispute that is localized and not allowed
to have wider social and economic repercussions.

(2)

(3) We should not provide decisions at the expense of re-
lationships. As long as there is an ongoing relationship
between the disputants which is worth preserving, tech-
niques of settlement should be used which tend to hold
together rather than force apart.

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1. Negotiation

(a) Industrial relations

There can be few countries in which the principle of voluntary
negotiation between workers and management, both as to the actual
terms of the relationship and as to dispute procedures, is more
firmly entrenched than it is in England. It has even been written into
the law as the first guiding principle of the Industrial Relations Act
of 1971. Recent government efforts to control an inflationary
economy by first freezing and then restraining increases in wages
and prices are still seen as exceptional measures, though they will
slowly come to be accepted as more normal. These limitations apart,
it is accepted that the basic terms of employment are to be bargained
out between the two sides of industry, with each using its familiar
techniques for applying pressure: the workers threatening strike
action, go slow, embargoes, and picketing; and the management
presenting the possibility of lay-offs, dismissals, plant closures and
lock-outs.

The majority of industrial disputes are settled at the level at
which they arise: on the shop floor, or at least within the factory.
But so notoriously erratic have been British industrial relations in
the last 20 years that many responsible people have begun to question
the principle of voluntarism and to ask whether solutions to labour
disputes can be imposed rather than negotiated. One particular
question has been repeatedly asked, namely whether greater stability
could be introduced into the system by making collective agreements
legally enforceable and so reducing the area for negotiation. For it
has not been a principle of our industrial relations that collective
agreements between workers and management should be binding in
law.

There was a limited change in this position following the Con-
servative Government’s Industrial Relations Act of 1971, now re-
pealed: “limited” because all that the legislation laid down was
a presumption that written collective agreements would be legally
enforceable unless they contained a provision stating that the agree-
ment or part of it was not intended to be a legally enforceable con-
tract.

But it had a remarkable effect: every trade union bargaining
official was issued with a rubber stamp saying “not legally bind-

-3 lndustrial Relations Act, 1971, c.72, s.l. The Act was repealed by the Trade

Union and Labour Relations Act, 1974, c.52 (effective 31 July, 1974).

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ing”. The 1972 Annual Report of the Commission on Industrial
Relations 4 commented that “the great majority” of collective agree-
ments contained such provisions and most of those that did not ap-
peared to have been the result of oversight. One apparently legally
binding agreement contained a magnificent lawyers’ clause to the
effect that if either party broke any clause in the agreement, the
whole agreement was to become invalid.

The reasons for this situation are basically twofold. Firstly, the
kind of agreements which are common in British industry are often
so vague that they are unsuitable for legal enforcement; and secondly,
in the present climate of industrial opinion on both sides it is un-
realistic to speak of legal enforcement (by which I mean decisions
by courts or arbitrators) as a constructive way of promoting co-
operation between management and workers.

At present, our collective agreements tend to lay down general
principles meant to act as guides at a national level and to form
the basis of detailed negotiations at a local level. Most agreements
would fail to satisfy a lawyer that they were precise enough to be
valid: a contract that cannot be given a specific meaning will be
“void for vagueness”. It is better to avoid the battle cry of “legal
enforceability” and to concentrate instead on improving mutual
understanding of the roles of management and workers by making
more precise agreements at the local (factory and company) level and
fewer general agreements at the level of the national industry.

I have used the word “roles” rather than “rights” when speaking
of management and workers, because to speak of “rights” implies
that there is rigidity in a situation which should in fact remain
open to mutual adjustment. Also, it carries strong overtones of
legal enforceability, which should be avoided. The nature of the
relationship between the two sides makes constant adjustment,
negotiation and renegotiation of the agreements imperative if they
are to meet the needs of the individual work place.

The importance of maintaining this flexible relationship was
emphasized by a leading commentator on British industrial relations.
He was speaking of the possibility of unconstitutional action by
workers and the reluctance of management to contemplate show-
downs with their employees:

… after such action, the process of living together has inevitably to be
resumed, and a conviction on either side that the other side has failed
to play the game [by going outside the conventional framework of nego-

4 Annual Report of the Commission on Industrial Relations, 1972 (Report

No. 37), 23, paras. 112, 113.

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tiation] can scarcely be expected to make this easier. One rarely takes
one’s immediate family, familiars or neighbours to law. Positive steps
to improve family relationships are likely to be preferable.5

() Commercial Contracts

It is remarkable how imprecise many business contracts are.
Certainly most transactions of any significance are planned as care-
fully as possible, often after taking legal advice over the final form
of the agreement. It is true, as well, that this creation of contractual
relationships
is nowadays more often achieved by standardized
documents, in which there is no genuine consensus but simply the
presentation of a form prepared by one party to the other for
signature or just as a record. This is especially true in the consumer
relationship. An organization marketing goods or services on a large
scale, unwilling or unable to negotiate with individual customers,
presents them with a “package” contract which they must take or
leave. The customer, concerned to obtain the benefits which he
knows to be at the heart of the package, will normally be happy to
agree to the terms laid down by the organization without any clear
understanding of them. Indeed, in many situations there may be a
total lack of real agreement on the part of those who are actually
engaged in “making the contract”, as where an unsophisticated
customer deals with an unsophisticated junior employee of the
organization. Both know how to fill in forms, sign cheques and
give receipts, but the actual consensus on the details of the contract
will often be non-existent.

If such an agreement is broken, what happens? What does not
happen is that the parties rush to court to litigate about their
“rights” under the contract whose terms they “discover” at that
moment. Rather, they usually enter upon a process of careful judg-
ment of the balance of power. How important is performance for
the parties in the social, economic and political situations in which
they find themselves? What levers can be used to obtain perform-
ance? Who has what the other wants more badly? Has performance
started? Has money passed? All these issues will have to be answered
before negotiations can begin, for on the answers will depend the
tone of the communications that pass between them.

Let me illustrate this process with an example from the travel in-
dustry. A tour operator agrees to take a client on holiday, provide
return air transport and a hotel with full board, for an inclusive price.

5 A.I. Marsh, Disputes Procedures in British Industry (Royal Commission
on Trade Unions and Employers’ Associations, 1966, Research Paper 2 [Part
1]), para. 108.

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The client pays a deposit and, some weeks before he departs, he pays
the balance due. But before he actually leaves, the company asks
him for a further payment to cover the “extra cost” incurred by
the fall in the value of sterling; and when he arrives in the resort, he
finds that he is accommodated in a totally different hotel from that
which he booked.

The company will probably have protected itself by appropriate
“booking conditions”, which will give it the right to charge prices
other than those advertised, and reserve to it the power to accom-
modate the client wherever it chooses, or even not at all. But for
immediate practical purposes these conditions are largely irrelevant.
Economic power is in the hands of the tour operator because he has
already taken payment in advance; if the client wishes to complain
and recover his money, it is he who will have to initiate the negotia-
tions. And he may well feel, as many do, that he does not want to
lose the chance of taking his holiday, which will have a greater
personal significance to him than his payment will have to the tour
operator.

Again, if the client’s hotel is changed, he is usually at a complete
disadvantage in relation to the operator. He may find himself in a
strange country, often arriving in the middle of the night, with
little alternative but to accept whatever accommodation is offered
to him. What is more, he will normally be confronted by a resident
representative of the operator who is employed explicitly to make
sure that temporary malfunctions in the contractual arrangements
are dealt with quickly and amicably.

If, on returning home, the disgruntled client writes a letter of
complaint to the company, he may find himself alleging that the
contract has not been performed properly, by which one should
understand that it has not been performed as he anticipated it
would be. But, as I have suggested already, he finds himself still in
the weaker position, not merely because he may realize that the
company has adequately protected itself in law, but also because he
is trying to make it disgorge money. The onus lies on him to per-
suade the company that he ought to be given a refund.

What is especially intriguing is the way in which use is made of
“law” in the process of negotiation that then takes place. As a lever,
the client may claim certain legal “rights” and insist that he be given
them; he may threaten to consult his solicitor or tell his story to the
newspapers or TV. In all probability, the company will in fact have
adequate legal protection under the contract but whether it will
choose to rely on it is another matter. The problem is given special
dimensions by the fact that the company will normally be dealing

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with the client through its Passenger Relations Department and not
through its lawyers. The settlement of the dispute will therefore
take on much more the character of a public relations exercise
than a legal dispute. The client’s future custom should be retained
if reasonably possible, adverse publicity as to the handling of the
case is to be averted, and widespread advertising of the company’s
involvement in legal proceedings (win or lose) is to be avoided at
all costs.

When there is a greater equality in the relationship, such as
between companies which have a continuing business relationship,
there is polarization much less quickly. A tour operator will handle
a dispute with a hotelier somewhat differently from a dispute with
a client. If the continuation of their contract is important, there
will be great hesitancy in speaking of “legal rights” or threatening
to sue. Often they will never refer to the agreement at all but simply
make adjustments in their dealings to suit the needs of their future
relationship. They will in fact be making new contracts though they
would seldom choose to say so.6

(c) Legal Assistance and Aid

The redressing of the balance of negotiating power is a matter
of public concern. The myth is still prevalent that there is equality
between the educated and the inarticulate, the rich and the poor, in
the face of the law, but it is only a myth. The educated can negotiate
better, marshal arguments and explain dilemmas more clearly, and
are therefore likely to get more positive responses than the inarti-
culate lower class group.

Educating complainants

in the best ways of complaining is
difficult; rather less so is providing them with professional help. It
is certainly true that solicitors’ letters make a bigger impact in
industry than even the most articulate client’s letter, since the dom-
pany’s answer has to be thought out more carefully and the dispute
already begins to move to arm’s length, with the prospect of court
proceedings in the background.

Thus, the question becomes how easily one can find a solicitor
who will carry on negotiations for a complainant who is inarticulate
and has little money. The answer is that the events of the last several
years promise to make it easier. For many years, State financial aid
has been available to those who became involved in civil court

6 For a fuller discussion of the techniques used in negotiations between
parties of equal power, see especially Macaulay, Non-Contractual Relations
in Business: A Preliminary Study, (1963) 28 Am. Soc. Rev. 55.

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proceedings. Less available have been the services of a lawyer who
would be prepared to sit down and write letters or conduct nego-
tiations. These services have had to be paid for and the poor have
suffered. The main support has come from municipal Citizens Advice
Bureaux which have dispensed legal advice through volunteers acting
on a part-time basis.

It is here that changes have been made. First, an independent
legal organization (Legal Action Group) was set up in 1971, financed
partly by subscription and partly by foundation grants, to bring
together socially-aware lawyers, law teachers, and social workers.
The Group provides free part-time services in 14 cities around the
country, but goes beyond Citizens Advice Bureaux in that it is
prepared to take up cases for clients rather than simply give im-
partial advice. Secondly, there has been the transplanting and de-
velopment of the American concept of the “neighbourhood law
centre” –
including the setting up of full-time subsidized law offices
in areas of cities which are easily accessible to poor people who have
problems. Just as social services go to the client, or at least operate
in the client’s locality, so too the neighbourhood law centres are being
conceived with accessibility as first priority. At present they operate
partly on local funds and partly on foundation grants, but there is
provision in the Legal Advice and Assistance Act, 1972, for setting up
more offices with salaried solicitors paid from the Legal Aid Fund.”
Thirdly, there is the 25 scheme.8 Since April 1973, people with
low incomes have been able to retain without charge to themselves
the services of a solicitor up to the value of 25 with a minimum
of formality and without prior authority. Nearly all the services of
a solicitor are available, though the scheme does not cover appear-
ances in courts or other tribunals, but most important is the fact
that the client will be able to employ a champion who will conduct
rnegotiations for him. Once the 25 limit is reached, further authority
will be needed from the area committee controlling legal aid, but one
imagines that if negotiations are to be protracted, this will easily
be obtained. The Government feels strongly enough about the value
of the scheme to have allocated 300,000 to publicizing it, mainly
in advertisements on television and in the press, and to have
instructed the Central Office of Information to monitor its results.
Theoretically, it should certainly help the poorer consumer, and
one is perhaps left with The Times’ wry comment that, now that the

7 Legal Advice and Assistance Act; 1972,. c.50, s.7 et seq.
8 Ibid., ss.1-5.

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legal services of the rich are taken care of by the rich themselves
and those of the poor are taken care of by the State, it is the middle
class that is disadvantaged, having not enough money to fall into
one class and too much to fall into the otherP

2. Conciliation

(a) Family Problems

Conciliation machinery to help to cement the relationship of
husbands and wives is nothing new. It is perfectly usual for a
husband or wife, unable to restore the balance of an unhappy
relationship by negotiation,. to seek the help of a willing third party,
such as a friend or relative, priest, doctor or one of those organiza-
tions which exist to offer marriage guidance counselling. There is
unanimity among those who have been involved in this work that
the chances of success are greatest if help is sought at an early stage
of the quarrel, and that by the time the husband and wife start taking
legal advice, the chances of reconciliation are considerably dimin-
ished. When divorce proceedings are started, the chances are almost
nil.

A major research study carried out into the attitudes of those
husbands and wives who go to local courts for temporary orders
(usually wives going for financial orders) has modified this accepted
picture only slightly. The researchers found that before the court
proceedings started, slightly over half the litigants would still
welcome reconciliation facilities; after, the proportion had fallen to
a quarter.’ Both these figures are perhaps higher than would have
been expected, but we must remember that we are not here speaking
of proceedings for divorce. Whether they would welcome reconcilia-
tion facilities or not, the facts of the matter appear to be that about
half these couples appearing in the magistrates’ courts went on to
divorce, and virtually all the others did not become reconciled but
remained living apart.”

It is not surprising, therefore, that few people have great con-
fidence in the power of conciliators in matrimonial disputes. The
three committees that have considered divorce law in the present
generation have all recommended against introducing compulsory

9 The Times, Editorial, April 2d, 1973.
1oO.R. McGregor, L. Blom-Cooper and C. Gibson, Separated Spouses (1970),

133 (Table 90).

“Ibid., Ch. 9.

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conciliation on the ground that it would probably become a point-
less formality with little prospect of success. 2 At the same time, our
conventional approach to marriage means that we are driven to insist
that conciliation is a valuable ideal. We tend to feel that, even though
it may be late in the process of marriage breakdown, husbands and
wives should be able to find out what marriage guidance facilities
are available and have the opportunity of taking advantage of them.
There are therefore three official references to reconciliation in
our modern divorce legislation. The first is the most important. The
Divorce Reform Act of 19691s draws the attention of the lawyers in
the case to the possibility of reconciliation, by making it possible
for the petitioner’s solicitor to give a certificate to the court to the
effect that le has discussed reconciliation with the petitioner and
given him or her the names of appropriate marriage guidance or-
ganizations. This is not to be regarded as a formal step to be taken
in all cases no matter how poor the marital relationship is. It simply
ensures that the lawyers have a list of the suitable organizations
which they can produce to clients who may benefit from special
guidance.

The second and third references to conciliation are of much less
practical significance. A divorce court is given the power to adjourn
a case before it if there is any reasonable possibility of reconciliation,
but in the nature of things it is a very rarely used power.’ 4 And in the
special circumstances of a divorce petition within three years of the
marriage, which the court can only grant in very special circumstan-
ces of hardship or depravity, it is barred from making an order
if there is any reasonable probability of reconciliation. 5 In practice,
of course, the “hardship or depravity” will usually be so great as
to make future marital harmony an impossibility.

12 Report of Royal Commission on Marriage and Divorce, 1956, Cmnd. 9678,
para. 340; Putting Asunder: A Divorce Law for Contemporary Society (Report
of a Group appointed by the Archbishop of Canterbury, 1966), para. 76;
Reform of the Grounds of Divorce: The Field of Choice (Law Commission
Report, 1966), Cmnd. 3123, para. 30.

13 Divorce Reform Act, 1969, c.55, s.3(1), now Matrimonial Causes Act, 1973,
c.18, s.6(1); and Practice Directions, [1971] 1 All E.R. 894, and [1972] 3 All
E.R. 768.

14 Divorce Reform Act, s.3(2), now Matrimonial Causes Act, 1973, s.6(2). See,
for example, the Australia and New Zealand experience discussed in the
Law Commission Report, supra, f.n.12, paras. 31-32.

15 Matrimonial Causes Act, 1965, c.72,-s.2(2), now Matrimonial Causes Act,

1973, c.18, s.3(2).

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(b) Race Relations

A racially harmonious community is not going to be realized if
disputes between races are allowed to polarize whole sections of the
community into hostile camps. From the beginning of our modern
race relations legislation in 1965, therefore, conciliation has been the
key to the handling of all problems of alleged discrimination. The
settlement of any dispute through the removal of the public wrong
of discrimination and the remedying of the damage suffered by the
victim is made dependent upon using certain official procedures.

The main instrument of settlement is the Race Relations Board
which, in addition to its chairman and 10 part-time members, main-
tains a full-time staff of administrators and conciliation officers.’
More importantly, the Board appoints conciliation committees to
work in the different parts of the country; at present there are nine
such committees covering the different regions, each with an average
membership of nine people.’ 7 These are all persons with special
knowledge of some aspect of the areas in which racial conflict
occurs, such as employment, housing, and so on, and there are
welcome signs that minority groups are being given increased
representation on the committees. Although the responsibility for
investigating complaints is shared between the national Board and
the local committees, the majority of investigation takes place at the
local level; the Board concerns itself mainly with cases involving
central or local government bodies or those which have special
features. Remembering the exclusivity of industrial relations pro-
cedures, it is hardly surprising that any complaint about discrimina-
tion in employment is automatically referred to the Department of
Employment, which in turn passes it on to the appropriate voluntary
machinery within the industry. Only if that machinery does not
exist or is inadequate does the Board handle the case.18

Conciliation procedures are as expedient and straightforward
as possible, and in fact in the majority of cases it is found that there
is no legal dispute to conciliate. In 1970-71, it was found that there
was discrimination in only a quarter of 530 general complaints made,
and in only 7% of complaints of alleged employment discrimination. 9
Professional staff take statements and assemble the evidence, in-

16 Race Relations Act, 1968, c.71, s.14.
17 Ibid. And see report of the Race Relations Board, 1972, para. 2, Appendices

II and III.

18 The special procedure in employment cases is discussed in detail in A.

Lester & G. Bindman, Race and Law in Great Britain (1972), 313.

19 Ibid., 303 (Tables 1 and 2).

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cluding where necessary expert evidence to assist them (such as
that of the Vice-Chairman of the Hairdressing Council on the
differences inherent in the cutting of Caucasian, Negroid and Asian
hair).* The committees or the Board must then decide whether
discrimination has taken place.

They cannot, however, behave like courts. It is important for
their primary work of bringing people together that they cannot
demand the attendance of witnesses or the production of docu-
ments. Nor can they make legally enforceable orders. The difficulty
is that everything they do must depend on the co-operation of those
complained against, but it is precisely because there has been no
social co-operation that the complaint has been made in the first
place.

When we speak of the Board “settling the difference” between
the complainant and the respondent, what do we mean? The
“difference” is what he alleges he has been denied, but of course it
may well be that it is impossible for him to get that any more, or
perhaps he does not even want it. A man cannot be given a house
or a job that has already been given to someone else; and he may
not want to eat or have a drink in a place in which he is not welcome.
Very rarely, he has been given what he has been denied, but in the
majority of cases the Board will simply be trying to make sure that
the respondent sees the error of his ways and offers an apology
to the complainant (which is usually all he will get), together with
a written assurance that the discrimination will not happen again.
The respondent may feel that he has to offer compensation as part
of the reconciliation but as the number of cases in which this happens
is negligible, and the largest amount paid (to the best of my know-
ledge) has been 150 for the loss of an employment opportunity,
we cannot think of compensation as a significant aspect of settle-
ment.

It is sometimes complained that the Race Relations Board is
powerless. However, quite apart from the threat of legal proceedings,
which I shall consider in the last part of this paper, it has many
powerful levers that it can use in its work of conciliation. Not least
is the fact that it can tell one party that he should not be behaving
unlawfully: an injunction which is still not without effect in En-
gland, even though there is no effective sanction to back it up.
Appeals to self interest may or may not succeed; but what must
ultimately succeed in this particular conciliation process is the

20 Report of the Race Relations Board, 1970-71, para. 33 and Appendix V,

case 4.

1974″1

SETTLING DISPUTES

threat of inevitability. It is only rarely that communities can con-
tinue to remain hostile to each other while taking part in the same
social, political and economic life. If widespread and genuine con-
ciliation cannot be an immediate reality, local and individual
conciliations will help to promote an atmosphere in which racial
hostility, will in course of time be substantially reduced. What is
important is that a spirit of persuasion and voluntariness should be
maintained at all costs.

(c) Industrial Relations

When industrial negotiations break down, it is taken for granted
that the next step in the process of encouraging voluntary agreement
shall be the use of a third party to bring about conciliation. Whoerer
the third party may be, the tradition of voluntarism in British labour
relations requires two things: firstly, that he should see his job as
helping the parties to achieve a settlement and not as imposing one
upon them; and secondly, that he should delay his intervention until
the parties’ own settlement machinery has clearly failed to produce
a result.

Conciliation machinery is a mixture of the formal and informal.
It is the result that matters, not who brings the parties together.
And so although the Department of Employment has a staff of
conciliation officers who work on a national and regional basis,
acting under legal powers conferred as long ago as 1896,21 anyone
who has enough prestige to influence the parties and enough motiva-
tion to try to bring them together can perform the conciliation func-
tion. At the top of the “official” hierarchy of conciliation are the
Ministers themselves, though they intervene only when the pro-
fessional conciliation officers of the Department of Employment have
failed td bring the parties together.

These officers have in fact a remarkable record of success over
the years, although their successes are usually unheralded by news-
paper headlines because they are the result of discreet work behind
the scenes, often at the informal level of telephone chats. In 1972,
the conciliation officers settled 716 disputes (not counting the “tele-
phone conciliations”), three quarters of them at the request of the
unions involved and only a very small proportion on their own
initiative. In the first half of 1973, the service had 605 requests for
assistance and has already completed 415 cases successfully.2 Just as
important, the officers have combined their conciliation work with

21 Conciliation Act, 1896, 59 & 60 Vict., c.30, s.2.
22 These statistics and those that follow are from The Times, Business News,

August 31st, 1973, p. 20.

McGILL LAW JOURNAL

[Vol. 20

advisory work to industry on personnel management, and so main-
tain a reputation for helping positively to create a good climate of
industrial relations in which the likelihood of dispute is reduced.

The success of the conciliation officers is contrasted by a sur-
prising failure in a system of relationships normally dedicated to
voluntarism and collectively bargained agreement. In August 1972,
the Trades Union Congress and the Confederation of British Industry
(the workers’ and employers’ associations respectively) launched a
joint conciliation and arbitration scheme, which was to be free from
the influence of the law and the Government. As a gesture of co-
operation in industry it could not be faulted; but because it failed
to offer any conciliation machinery demonstrably better than that
of the Department of Employment, it has in the 15 months to the
time of writing attracted only one application for its services. The
Industrial Society, apparently believing that it could offer greater
independence, set up similar machinery at the beginnning of 1973,
but it has only been set in motion six times in contrast to the official
machinery’s 605 times in the same period.

3. Arbitration

(a) Industrial Relations

Since the Conciliation Act of 1896, it has been possible for the
parties to an industrial dispute to go to arbitration, either to a
highly skilled individual arbitrator, or to the (now newly named)
Industrial Arbitration Board. The Board is tripartite, consisting of a
lawyer as chairman and representatives from each side of industry,
though not the industry before the Board. The arbitrator’s task is
to make an award which will both satisfy existing claims and lay
the foundation for future relations. In practice, as in all arbitrations,
the award will be accepted by both sides.

(b) Commercial Contracts

In contracts between businessmen, it is common to provide that
disputes under the contract which cannot be settled amicably, i.e.
by negotiation, shall be referred to arbitration. The arbitrator will
normally be drawn from one of the panels of arbitrators within
the trade or industry concerned, or from one of the non-specialized
groups of arbitrators in specific cities with a tradition of well-
developed commerce.

The expertise of the arbitrator is fundamental. He is often
able to make a rapid judgment on what is involved in the dispute
because he is fully familiar with the operation of the trade con-

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SETTLING DISPUTES

cerned. Often he will have personal experience in matters com-
monly put to arbitration, such as the quality of goods or services
in a particular trade.

It was the lack of personal expertise that was probably at the
root of the failure of one of the recent experiments in arbitration.
Under part of the Administration of Justice Act 23 which came into
force in October 1971, it was provided that a judge of the Com-
mercial Court (the special branch of the High Court dealing with
important commercial issues) could accept appointment as a sole
arbitrator where the dispute seemed to him to be of a commer-
cial character 3a Although three judges have been made available
and the business of the Commercial Court has not been heavy (in
1972 it only heard some 50 cases), not one single appointment has
been offered to a judge. Despite the advantages claimed for arbi-
tration by a judge (his fees, which are paid to the High Court,
are low compared with those of many experienced commercial
arbitrators, and his award could be questioned directly in the
appeal court and not in the High Court), there has been no sign
that the, commercial community has much need for arbitrations
by the judipiary. Those professionally involved say that there are
ample arbitration facilities available in particular trades, and there
is nothing to suggest that a judge, forced to call witnesses to ex-
plain the workings and standards of a particular business, would
enjoy much prestige within the trade. It is true that there is still
widespread unawareness of the possibility of using judges in this
way, and no doubt better publicity would yield more results. But
until it is shown that the issues to be decided relate to law rather
than business, the experiment will remain a failure.

Outside this rather special field, there are three modem develop-
ments in arbitration. All at the moment are being pursued separately,
but all could in the future come together into a comprehensive
scheme.

The Manchester Arbitration Scheme for Small Claims was
begun in recent years as an exercise in providing quick and easy legal
redress for consumers who have a dispute with manufacturers or
retailers. Any individual who is claiming not more than 150 can
put his case to the scheme, and have an arbitrator appointed by
the President of the Manchester Law Society (the local profes-
sional association of solicitors). The overheads of the scheme are
met by a grant from a foundation, and the arbitrators (who are
usually lawyers) and expert advisers involved offer their services

23 Administration of Justice Act, 1970, c.31.
23a Ibid., s.4.

McGILL LAW JOURNAL

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for low fees as a public service. A decision can be given on the
basis of a written claim and answer if the parties prefer this;
otherwise, they come before the arbitrators with any evidence
they choose to bring with them, though they are not allowed to
bring their lawyers. If necessary, the arbitrator can consult an
expert or arrange for a test or inspection to be carried out. He
gives his decision as quickly as possible and tells the parties who
must pay the costs.

The scheme was set up experimentally to see if it might prove
a satisfactory model for a national consumer court system. It has
proved effective enough for a variation of the model to be estab-
lished in London. The same foundation is responsible for finan-
cing the project, which will be operated by the Westminster Law
Society. The amount which can be claimed under the Westminster
scheme has been increased to 250 and the range of cases to be
dealt with has been extended. Nonetheless, it is confidently ex-
pected that the majority of the work will be small consumer
claims between 5 and 10.

These may be called “pro-consumer” schemes, in that they
have been set up in consultation with consumer protection bodies
to afford cheap and easy remedies. What is often not conceded
in the pro-consumer movement, however, is that the retailers;
manufacturers and others who are the target of pro-consumer ac-
tivity are often themselves equally concerned to establish cheap
and easy procedures. Their concern stems not only from a desire
to give themselves the advantage of those procedures, but also
because they may acknowledge that they have a public duty to
respond to the growing sense of consumer consciousness.

Arbitration schemes have been set up, for example, by two
trade associations on the same model: the Motor Agents Associa-
tion and the Association of British Travel Agents. The extent to
which they each provide a remedy differs. In the case of -the
Motor Agents Association, it is a condition of an agent’s member-
ship in the Association that he should agree to arbitration of
disputes that cannot be settled amicably with the customer. A
similar approach was recently considered by the Association of
British Travel Agents, but there was apparently insufficient sup-
port from the major tour operators, who were confident that
their internal settlement procedures were completely adequate to
their task. As a result, membership in the scheme remains volun-
tary and very few members of the Association have joined.

In both schemes, participation by the consumer is simple and
inexpensive. It costs the consumer a 5 deposit at most, and if

19741

SETTLING DISPUTES

he succeeds, he will usually have that refunded together with
whatever award the arbitrator makes. The decision is normally
made on documents alone, though the travel industry scheme
provides for an actual hearing in person if this is requested (and
paid for). It is almost certainly in the client’s interests to opt
for the cheaper procedure and one would imagine that a travel
company too, faced with the prospect of having to bring repre-
sentatives back from overseas for an oral hearing, would prefer
arbitration on the basis of documents alone.

Lastly, a development is now beginning which may encourage
a consolidation of these existing private arbitration arrangements.
A section in the Administration of Justice Act, 19 7 3 ,23b lays the founda-
tion for a new small claims procedure in the county courts. Claims of
up to 75 (or more if the parties agree) may be transferred by the
registrar to arbitration by himself, the judge or an outside arbi-
trator, even if one of the parties does not agree.24 The case may,
with the parties’ consent, be heard exclusively on the basis of
their statements and documents, and if a hearing is thought to
be necessary, it is conducted informally, according to any pro-
cedure the arbitrator thinks convenient and fair. With the parties’
agreement, he may consult a technical expert, call for an expert
report or invite an expert to attend the hearing as an assessor.25
At the time of writing, the scheme had been functioning for
too short a time to form any impression of its value. It may
well leave something to be desired in financial terms, as no steps
have been taken to bar the parties’ lawyers from the proceedings,
and the experts’ fees for technical opinions may prove to be more
daunting than modest. A procedure which is to be inexpensive
enough to be valuable to the consumer will need to by-pass the
legal profession; one which is based on access to the county
courts, which is normally regulated by the advice of a solicitor,2
is likely to remain more costly than the other existing commercial
arbitration and small claims schemes.

23b Administration of Justice Act, 1973, c.15.
24 Ibid., s.7, amending s.92 of the County Courts Act, 1959, 7 & 8 Eliz. II,
c22 and the County Court (Amendment No. 3) Rules, 1973 (S.I. 1973, No.
1412), r.4.

25 Practice Direction, [1973] 3 All E.R. 448.
26 Though for the middle class consumer, October 1973 saw the advent of
not only the revised county court arbitration scheme, but also the first
do-it-yourself book on civil procedure: How, to Sue in the County Court
(1973, Consumers Association).

McGILL LAW JOURNAL

[Vol. 20

4. Adjudication

When a conflict reaches court, it can fairly be assumed that
all other means of settling the dispute have failed or have been
thought inappropriate, and that the protagonists have polarized
their claims, In theory, an adjudication by a court looks to the
events which have occurred and to the norms according to which
judgment is to be reached. Putting the two together, the court
hands down an authoritative decision which usually declares one
side to be in the right and the other side to be in the wrong;
for this reason, it is not usually in both parties’ interests for a
case to be decided in court.

(a) Adjudication or Administration

First, it is essential to discuss what courts should not decide.
It is important that courts should genuinely be asked to choose
between alternatives, and not merely be accorded a “rubber-stamp-
ing” role. The fields discussed above include two particular ex-
amples of what might be regarded as misuse of judicial time.
The first is divorce. Until the nineteenth century, divorce could
only be obtained by Act of Parliament; since 1857, it has been
granted by the courts. The 1969 reforms in our divorce laws,
which were the most significant since 1857, represented a major
step towards creating a divorce procedure in which, given the
mutual consent of the husband and wife, administrative authori-
ties would take the place of the courts. At present, the hearing
of an uncontested divorce petition may take as little as five min-
utes of the court’s time, but even this burden of time could more
conveniently be put on to the shoulders of some other body.
Details of financial provision and child custody arrangements
could be worked out by the husband and wife under the super-
vision of the social welfare authorities.

The second example relates to some of the powers of the Na-
tional Industrial Relations Court under the Industrial Relations Act,

27 A typical list of undefended cases in the author’s local county court in
1973 allowed an average of three minutes per hearing. A Practice Direction
during the year, however, reduced the length of time needed to hear a
petition based on adultery by making affidavit evidence the norm (Practice
Direction, [1973J 3 All E.R. 180); and a revolutionary new procedure introduced
in December 1973 allows a precisely-defined class of petitions based on two
years’ separation with the respondent’s consent to be dealt with in a quasi-
administrative manner without the appearance of either party (Practice
Direction, [1973] 3 All E.R. 1182).

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SETTLING DISPUTES

1971. In an emergency, the Minister could apply to the Court for an
order forbidding the taking of industrial action in a defined area of
employment for a period of up to 60 days. The conditions of the
application were that industrial action had started or was likely,
and that it would cause disruption which would be likely to seriously
injure the national economy, endanger security or the lives or health
of a substantial number of people, or create a serious risk of public
disorder.28 Again, in the same circumstances, if the Minister had
reason to doubt whether industrial action was the will of the majority
of the workers involved, he could ask the court to order a ballot of
the workers in the area concerned.29

In both cases, if the Minister’s facts were found to be true, the
court had to make the order he asked for and could exercise no prop-
er powers of decision. In other words, it was a fairly blatant attempt
to force the hand of the unions by giving the Minister powers
while pretending that the court was exercising them. The Government
invoked them only once, in the 1972 railway dispute when they
proved to be of little use, and even though faced with massive
problems during 1973 in the gas, railway and hospital services, it did
not dare to use them again.

(b) Adjudication and Social Relationships

If, then, it is important to see the role of a court as making
a decision between competing alternatives, what kind of disputes
should be entrusted to the courts to solve? My own view is
that as far as possible, the courts should only be used to obtain
a final determination of the rights and duties of the contesting
is to be severed
parties. If a social or economic relationship
completely because it has deteriorated to a point at which no
consensus exists, then a court may be the proper institution to
sever it. It is for this reason that, given the tradition of volun-
tarism in British labour relations, I have some doubts as to the
place of the courts in making decisions about industrial disputes.

Although all relationships function better if there is consensus,
the industrial relationship is wholly dependent upon it. And what
will make consensus harder to reach is one party dragging another
into court against his will, polarizing the respective claims that
litigation necessarily forces upon the parties, and yet continuing
to insist that the relationship of management and worker should
the consumer can
continue. This is not a consumer situation:

2 8 Industrial Relations Act, 1971, c.72, s.138. (Repealed, 1974).
29 Ibid., s.141.

McGILL LAW JOURNAL

[Vol. 20

always go to another shop, or take a holiday with another tour
operator. It is not even a family situation: when husbands and
wives go to court for divorce, they are already in an advanced
state of hostilities and do not expect to be told that after the
court’s decision they must go back to bed with each other. But
this is precisely what a court will tell management and workers
after making a decision on legal rights in favour of one and against
the other.

The 1971 Industrial Relations Act, in tiptoeing between the ex-
treme claims of the traditionalists and the unions, gave to local
industrial tribunals and the National Industrial Relations Court
(N.I.R.C.) the power to carry out the function of adjudication in
industry: the tribunals to decide individual disputes and the national
Court to decide collective ones.2 9a What happened? The first and most
obvious consequence was that the Trades Union Congress established
an official boycott of the tribunals and the Court. No union which is
a member of the T.U.C. ever appeared as a plaintiff in proceedings
before them and some did not appear even in self-defence. Orders
made against unions were therefore in a sense made without their
concurrence; but in principle, of course, a court’s order should
be obeyed whether or not it has the concurrence of the person
against whom it is made.

The experience of the 1971 Industrial Relations Act showed the
weakness of the adjudication approach. We saw trade unions resist-
ing orders to pay fines imposed on them for contempt of court and
their assets being seized under sequestration orders until the fine
has been paid .3 We saw shop stewards committed to prison for
contempt because they would not carry out orders of the Court, and
subsequently released because the courts did not want to help create
a new form of trade union martyr.

These were merely trials of strengh which in my opinion did
not show the true strength of the parties. If the unions choose to
oppose management, or if their members insist that their leaders not
implement decisions of a court, what can society effectively do?
Here we are facing a unique problem of law enforcement: we cannot
rely on the comfortable assumption that people will obey the courts
just because they are told they should. Constant sequestration orders
will weaken the unions financially and it may be conceivable, al-

20a Ibid., Part VI.
30 Ibid., s.101(3). The Amalgamated Union of Engineering Workers has been
fined over 130,000 for contempt. For a recent fine of 75,000 and sequestration
order in respect of 100,000, see The Times, October 11 and 23, 1973.

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SETTLING DISPUTES

though unlikely, that the threat of bankruptcy will made them com-
ply with policies with which they do not agree 31 But this could well
be disastrous to the industrial life of Europe, and in the long term it
seems likely that consensual forms of management will emerge
which will give the unions responsibilities more commensurate
with their real power 32

Some years ago, a shrewd commentator said that if ever England
set up a labour court, it would soon become part of the national
conciliation machinery,33 and this is precisely what happened. The
Act required the Court to let the parties take advantage of all con-
ciliation opportunities and it was enabled to adjourn its own pro-
ceedingsY 4 The President of the N.I.R.C. said that he saw conciliation
as having been one of the Court’s most successful achievements.
In February 1973, he pointed out that of the 30 complaints of
alleged unfair industrial practice which had been disposed of
by the end of January, 20 had been withdrawn following a settle-
ment. Most of the 17 complaints then pending had been adjourned
with a view to an agreed settlement.3 5

(c) Justiciability

What then makes an issue “justiciable” by a court? There have
been several intensive discussions of the problem in England in
recent years, both in Parliament and among scholars. Yet one
cannot but feel that, when one looks at the issue in broader
perspective, much of the discussion appears spurious. This
is
mainly because it has proceeded upon the naive assumption that
judges can only be trusted to apply rules and not create policy,
and has presupposed that both judicial structure and the formal
framework of litigation are established in moulds that cannot

31 There is some evidence that militant unions are transferring assets out
of the jurisdiction to make it impossible to sequester them: e.g. the Associa-
tion of Cinematograph, Television and Allied Technicians, The Observer,
November 18, 1973.
32 Quite apart from the draft EEC Commission Fifth Directive (requiring
one-third worker representation at supervisory board level),
informal do-
mestic recommendations in the U.K. by a joint committee of industrialists
and trade unionists support increased worker participation in management:
see Sunday Times, July 15, 1973, and The Times, July 16, 1973.

nMarsh, supra, fm. 5, para. 102.
34 1ndustrial Relations Act, 1971, c.72, Schedule 3, para. 18(3).
35 Sir John Donaldson, addressing the Glasgow Chamber of Commerce,

reported in The Times, April 10, 1973.

McGILL LAW JOURNAL

[Vol. 20

be broken. Both assumptions are false, as experience has shown,
but it has taken political initiative rather than jurisprudential
persuasion to establish this.

Problems are normally presented to courts in small, narrowly-
defined units. Judges are not usually expected to pronounce with
authority on broad issues of social direction or economic develop-
ment. But it now seems to be accepted that if the broad issues
can be broken down into a series of more precise questions, then
the courts can answer them.

(i) Presenting the Issues

This proposition can be illustrated with examples from a new
court (the Restrictive Practices Court, set up in 1956) and from
a court in which the terms of reference were changed in 1969
(Family Division of the High Court).

The Restrictive Practices Court was established to scrutinize
restrictive trading agreements between businessmen, e.g. exclusive
supply arrangements, price fixing, and so on. The basic legisla-
tion presumed that such agreements were against the public in-
terest and should not be allowed to continue. The Court was to
have the job of deciding whether any particular agreement re-
ferred to it did in fact serve the public interest, and whether
its merits in this respect outweighed its demerits so that it could
be salvaged.

The Parliamentary Opposition categorically opposed the crea-
tion of the Court. They privately suspected that the judges would
be too economically conservative in their approach, but publicly
concentrated more diplomatically on the vague constitutional
principle that judges should apply laws and not create policies.
Policy-making was a Parliamentary prerogative. Conducting the
argument along these lines effectively played into the hands of
the supporters of the Bill, because what they were proposing was
not a general power for the Court to give an arbitrary “Yes” br
“No” to any agreement, but a more limited power which admit-
tedly called for judgment, but set bounds to the issue. A restric-
tion in a trading agreement was to be deemed contrary to the
public interest unless the Court was satisfied that one of seven
situations existed: that the restriction was reasonably necessary
to protect the public against injury in connection with the use
of the goods; that the removal of the restriction would be likely
to cause a reduction in export earnings; that the removal of the
restriction would be likely to have a serious effect on unemploy-
ment in any area in which the industry was carried on; and so

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SETTLING DISPUTES

on. An element of judgment was left in every one of these “gate-
ways”, but the decision became structured, the issues narrowed,
and judicial inventiveness disguised to the extent of saying whether
a practice was “reasonable” or not.0 6

A similar problem of justiciability was considered in 1969.
After efforts had been made intermittently for a hundred years,
the decision was finally made to change the basis of divorce juris-
diction. From 1857 (and before that in the church courts), the
basis of divorce had been the proving of a “matrimonal offence”.
This was, the retentionists said, a very suitable approach. Some
wrongful behaviour had to be alleged, be it desertion, or adultery,
or cruelty, and the court’s task was simply to see whether on
the evidence it had been proved. In other words, the issue was
treated without reference to the surrounding background, as if
the husband and wife were in total opposition to each other.

The truth of the matter is, of course, that the majority of
husbands and wives who appear as petitioners and respondents
in the divorce courts both want a divorce, and formal dispute
between them as to whether or not they should get a divorce is
negligible. Indeed, it was argued, the so-called matrimonial of-
fences may be only symptomatic of the breakdown of a marriage,
and will not lead to divorce unless the relationship between the
husband and wife has already deteriorated to a point at which
it cannot be saved.

This brief background serves to set the scene for the debate
that took place from 1966 to 1969. At the start of that period,
a group of scholars examining the problem at the suggestion of
the Archbishop of Canterbury advocated “breakdown of marriage”
as the sole ground for divorce; in the same year, their proposals
and others were reviewed by the Law Commission; 37 and the final
distillation of legal, ecclesiastical and Parliamentary thought ap-
peared in the Divorce Reform Act of 1969V1

The principle embodied in the 1969 Act is basically that divor-e
will be granted if it is shown that there has been an irretrievable
breakdown of the marriage ” and if as proof of this, evidence is
given of any one of five situations which has arisen (adultery
and intolerable behaviour, conduct with which the petitioner can-

3 See generally, Stevens & Yamey, The Restrictive Practices Court (1965),

Ch. 3.

37 Supra, f.n. 12.
38 Divorce Reform Act, 1969, c.55.
9Ibid., s.1 (now Matrimonial Causes Act, 1973, c.18, s.1(1)).

McGILL LAW JOURNAL

[Vol. 20

not reasonably be expected to put up, desertion, two years’ sepa-
ration with consent, or five years’ separation without consent).4
The justiciability of the issue is in fact made even more straight-
forward by so arranging the Act that if one of these facts is proved,
then the marriage is assumed to be irretrievably broken down and
the court must grant a decree unless it is satisfied that it is not.,’
What has been enacted in the 1969 Divorce Reform Act is a
modified version of what the Law Commission called “breakdown
without inquest”.42 If the husband and wife are before the divorce
court at all, that of itself is good indication that the marriage
has broken down, and it is fairly clear that they will be better
judges of the viability of their marriage than a court can be even
with the most elaborate and searching inquest. With one or two
qualifications, the courts are now simply concerned with putting
their rubber stamp of approval on the assessment of marital break-
down. A few petitions are still contested but, as before, not usually
because of a desire to remain married but merely in the hope
of securing better financial provision or greater control over the
children of the family.

(ii) The Composition of the Courts

One must bear in mind that the personnel of the courts are
not a neutral matter. Who the judges are and what they are capa-
ble of doing is basic to the issues that can be entrusted to them.
The stereotypes of the English higher judiciary are important
because they have played no small part in the political battles
about the role of the courts in the social system. The Establish-
ment sees the judges as men of the highest personal integrity,
political independence and intellectual calibre. Quite apart from
their judicial work, they can therefore be entrusted with inquiries
into such sensitive areas as state security, military brutality and
the sexual misbehaviour of Ministers of the Crown. They occupy
high positions in the hierarchy and their decisions and reports
command high respect.

To the cynical, the higher up the judicial ladder a judge may
go, the less he remains a man of the people, the less intellectually
liberal and the more socially, economically and politically con-
servative he becomes. And, as seems inevitable, he gets older, too.

40 Ibid., s2(1)(a)-(e)(now Matrimonial Causes Act, s.1(2)(a)-(e)).
41Ibid., s2(3)(now Matrimonial Causes Act, s.1(4)).
42 Reform of the Grounds of Divorce: The Field of Choice, supra, f.n.12,

paras. 71-76.

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SETTLING DISPUTES

The judges’ analytical powers are not usually questioned, though
on one remarkable occasion recently a dissatisfied litigant threw
animals’ brains at three judges of the Court of Appeal, voicing
the complaint that they did not have enough of their own.

I have become increasingly convinced that there are many
areas of social activity in which court decisions can be made
much more sensitive to social conditions if there is participation
in the decision-making process by a wider range of people. This
necessarily echoes the criticism that the higher judiciary may be
too remote from or not widely enough experienced in human
affairs. Sometimes this gap in experience may be filled through
the participation of experts in the judicial process. For example,
it has been argued that there should be a family court composed
not merely of lawyers, but of social workers, psychiatrists and
others with expertise in problems of interpersonal
relations.
Should the power of a judge to pass sentence be shared with
others (psychologists, probation officers and criminologists) who
have special expertise in the study of what happens to criminals
after they have been sentenced? The question is not whether the
legal issues are clear, or whether the judge knows the legal rules,
but whether there are not broader issues at stake, issues which
are not easily and clinically disposed of by a yes/no answer and
for which a wider experience of social and economic problems
may be needed.

The Restrictive Practices Court, mentioned above, was the first
of the new courts to be set up with mixed legal and non-legal mem-
bership.43 The non-legal members are persons with special experience
in commerce and industry, and such is the pride of place given to
them that in practically every decision given by the Court on a
restrictive agreement, these specialists have outnumbered the judges.
What may be of more lasting significance is that individual lay
members have a tendency to remain judges of the court for longer
periods than the legally-qualified judges who, after a period of
service, are returned to the High Court to continue their ordinary
judicial business or are promoted to the Court of Appeal. It is in-
teresting that once the Court became properly established (and the
lay members presumably acquired status and influence), its decisions
became more pro-industry than its earlier ones had been.

The second, more controversial development on similar lines has
taken place in the field of race relations. Whenever a county court
hears a case brought by the Race Relations Board under the Race

43 Restrictive Trade Practices Act, 1956, 4 & 5 Eliz. II, c.68, s.4.

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Relations Act, the professional judge must sit with two assessors
who have special knowledge of problems connected with race and
community relations. 44 The decision made must be his alone, but he
can draw on them for information and advice about the behavior
and reactions of people in racial conflict. The objective was, as the
Lord Chancellor explained in Parliament, to create confidence:
decisions should not be “left to a judge who may have nothing at
all to do with race relations or with coloured people”.45 However,
the real fear of the coloured communities was that white judges
would say that white defendants had not discriminated against them.
Even though it may not have worked out precisely as feared, obvious
deficiencies can be seen. The assessors appointed to serve on race
relations courts are well-disposed, community-conscious people,
though whether all of them have “special knowledge” is doubtful.
But most importantly in terms of the crucial issue of confidence,
not one of them is black.46

The latest venture into multi-judge courts has come with the
setting up of the National Industrial Relations Court. Even more
so than in the case of the two courts described above, the mem-
bership of the N.I.R.C. had to create confidence in the potential
litigants. The trade union movement was bitterly opposed to the
whole conception of the Court and had threatened to boycott all
its proceedings. This proved to be the biggest political crisis of
confidence in the courts in recent years. But if the conception of
the Court had come to be accepted, it would have been its mixed
membership which played a leading role in making it a functioning
part of the industrial system, in much the same way as the laymen
have made the Restrictive Practices Court sensitive to industry.

One must be careful about using the word “laymen”: a judge
publicly contradicted counsel who referred to the N.LR.C. as
being made up of one judge and four laymen. He stated that there
were five judges, one of them a professional. 47 The non-legal judges
were all persons with special knowledge or experience of industrial
relations.4 8 The “professional” judge was responsible for delivering
the judgment of the Court, but as its President pointed out:

All judgments … are the result of careful and detailed consultation be-
tween all the members who have sat for the hearing of the case…. Each

44 Race Relations Act, 1968, c.71, s.19(7).
45 (1968) 296 House of Lords Deb., col. 1572.
46 Lester & Bindman, supra, f.n.18.
47Buckley, L.., in Secretary of State for Employment v. A.S.L.E.F., quoted
48Industrial Relations Act, 1971, c.72, s.99. (Repealed, 1974).

in Rideout, Practice and Procedure of the NIRC (1973), para. 1-04.

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SETTLING DISPUTES

member, whether Judge or industrial member [sic.], weighs and considers
the evidence in the light of his own skills and experiences, and the
resulting judgment records their joint conclusions.4 9

Given the English judiciary’s lack of experience in dealing with this
kind of problem, it is perhaps possible to take the President’s words
at their face value, making the position contrast sharply with the
dominance of the professional judge in labour courts elsewhere in
the world.

(d) The Nature of Court Proceedings

This paper has been mainly concerned with relationships which
we have chosen in England to classify as “civil” rather than
“criminal”. The distinction between the two is by no means clear for
many conflicts have both civil and criminal aspects and even civil
and criminal procedures have much in common. There are, however,
two characteristics of criminal proceedings that are of the greatest
importance here and which both stem from the fact that crime is
conceived of as a wrong affecting the State as a whole. First, labelling
a wrong as a “crime” tends to affect the popular conception of the
seriousness of that behavior. Insofar as this may lead to an in-
tensifying of social disapproval, a greater degree of polarization may
be achieved than by simply labelling the behaviour as a “civil wrong”.
Secondly, although it is not invariably true, the conduct of a criminal
prosecution is usually in the hands of State officials, on behalf of
the community as a whole, rather than its being left to each indi-
vidual victim to maintain his own suit.

We have had to consider more than once in recent years the
appropriateness of criminal procedure for dealing with different
kinds of disputes. A survey published in 1970 of the experiences of
husbands and wives who took their matrimonial disputes to the
magistrates’ courts showed that half the husbands and a third of
the wives disliked the attitude of the magistrates to them and to
their problems, and a good proportion of each of these groups
objected that they were “treated like criminals” 0 The magistrates,
who are almost entirely part-time lay judges, do in fact spend the
majority of their courtroom time trying criminal cases, and though
they should make a rigid demarcation between their criminal and
their matrimonial adjudications, they obviously fail to do so. The
experience of the juvenile courts, which since 1969 have been in-
structed to conduct “care proceedings” rather than criminal ad-

49Midland Cold Storage Ltd. v. Turner, [1972] I.C.R. 236.
5OSeparated Spouses, supra, f.n. 10.

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judications in respect of juveniles, is very much the same.5′ Indeed,
it would be surprising if it were not, for the same group of lay
magistrates are the judges of the juvenile courts. Both experiences
may support the movement in favour of a family court in which
legalistic procedures (and especially those associated with the crim-
inal courts) are de-emphasized.

The first comprehensive body of law for coping with racial
discrimination in England came into effect, as was mentioned above,
with the passing of the Race Relations Act in 1965.52 The first draft
of the Bill provided in uncompromising terms that in certain cir-
cumstances, racial discrimination was to be a criminal offence. It
was only a carefully judged withdrawal from this position while the
Bill was passing through Parliament that saved the legislation. On
the one hand, it was an open secret that the civil servants advising
the Home Secretary believed it was impracticable to “legislate for
conciliation”, and on the other there was strong pressure from both
sides of the House of Commons to look carefully at the American
experience.

Finally, although it is probably true to say that most Members
of Parliament neither understood the range of different procedures
available in the United States, nor had any feeling for the social,
economic and political dimensions of racial conflict in that country,
a procedure was adopted which owed much to the law of New York.
It involves, as we have seen, giving primacy to conciliation, but once
the Race Relations Board fails to obtain a settlement of differences
or a satisfactory assurance that discrimination will not be repeated,
it may bring civil proceedings against the offending member of the
public. It may claim: (a) an injunction to restrain the defendant
from engaging in unlawful conduct in the future; (b) damages to
compensate the victim of unlawful conduct; (c) a declaration that
the defendant has acted unlawfully; and (d) revision of a con-
tract or a term in a contract so that it does not contravene the
Act.5 2a

These remedies are designed to give teeth to the Race Relations
Act by making sure that behaviour which the State chooses to call
unlawful does not go unquestioned. At the same time, they are teeth
that do not bite hard: they do not draw blood, but merely leave an
impression. They do not seek to polarize the communities of the
white and the black, of the discriminators and those discriminated

51 Children and Young Persons Act, 1969, c.54, s.1.
52 Race Relations Act, 1968, c.71.
Un Ibid., s.19, 21-23.

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against, because harmony and not hostility is the objective of the
Act. It does not therefore strike with the big stick of the criminal
law; rather, it administers a parental slap and in effect says “You
have done wrong; don’t do it again”, and then leaves it to the in-
dividual’s sense of public duty and the growing consensus of com-
munity opinion to restrain this kind of behaviour in the future. We
have unfortunately no evidence that these measures promote better
race relations, but we can without question point to the fact that
none of the civil suits brought by the Board has irretrievably in-
flamed a difficult racial situation. To this limited extent, we may
perhaps speak of the success of the policy.

It should be noted that these civil suits are brought by the Board.
When civil remedies are offered by statutes, the normal assumption
is that the individual citizen wronged may bring an action to seek
these remedies. The Race Relations Act has broken with this tradi-
tion: it gives to the Race Relations Board the exclusive right to
bring proceedings (in specified local courts only), and expressly
avoids giving the citizen any standing to bring either civil or
criminal proceedings to enforce rights under the Act.53

This may be a procedure with wide implications for future use.
The Board (or in effect, the State) controls access to the courts.
Not only does this mean that it can decide when and where 54 a
particular issue should be ventilated in public and thus lay the
foundation of a coherent and systematic enforcement policy, but it
avoids the harm to race relations that might otherwise be produced
by outraged and aggrieved action by a private individual. In this
sense, it safeguards the harmonious interests of the community as a
whole. Yet at the same time it protects the interests of the individual
as far as it can by taking from him the financial and emotional
burden of litigation and shielding him from symbolic confrontation
as a plaintiff with the man who allegedly discriminated against him.
Finally, another new development promises to strengthen the
bridge between civil and criminal proceedings. The Fair Trading
Act,55 which passed into law at the end of the summer of 1973,
makes provision for a Director General of Fair Trading who will
combine in his office all the powers of a supervisor and prosecutor.
His duties are described in the broadest terms as keeping under
review the carrying on of all commercial activities in the United

53Ibid., s.19(1) and (10).
54 It further controls access by only giving jurisdiction to specified courts:

see ibid., s.19(2).

55 Fair Trading Act, 1973, c.41.

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Kingdom relating to goods and services supplied there, and keeping
his eye upon all activities which may harm the economic interests of
British consumers.” Firms or traders who persist in unfair trading
practices can be asked to give written assurances that they will
stop them, and if they break them or persistently break the criminal
law or their civil obligations, they will become liable to proceedings
before the Restrictive Trade Practices Court, which may order the
offender to refrain from continuing that course of conduct.5 7

This will put on a formal footing a practice which has existed
in consumer protection since the passing of the Trade Descriptions
Act58 in 1968. That Act gave teeth to consumer protection by penal-
ising the trader who carelessly misled a customer by using a des-
cription of goods or services which was in fact false. The enforcement
of the Act was entrusted to local standards officers (Weights and
Measures Departments) and not to the police, so ensuring a
continuous specialist involvement in the prosecution process. It is
quite clear from even a superficial familiarity with their work that
they are expert balancers of civil and criminal remedies. They most
often become involved, of course, when they receive a complaint
from a dissatisfied member of the public. They then exercise careful
judgment whether the public interest will best be served by pursuing
the offending trader in criminal proceedings, or by making him satis-
fy his civil obligations to the individual complainant. In certain cases,
a company will be urged in no uncertain terms to give an explana-
tion, an apology and a small compensation payment to a customer,
so as to avoid a lengthy and expensive investigation and criminal
prosecution. On the other hand, if the trading practice is genuinely
and continuously misleading, prosecutions will be mounted and
heavy fines levied. This happened in proceedings against members of
the travel industry in the last two or three years: fines of 1000 to
1500 against the companies grossly outweighed the compensation
orders of only 5 to 10 in favour of the clients.

CONCLUSIONS

What lessons can be drawn from all this? I would like to suggest

three:
1. The first is that concentrating on disputes and their settlement
is bolting the stable door when the horse has gone. We should be
trying to create systems of organization and control which will

56 bid., s92.
57 Ibid., s.34.
us Trade Descriptions Act, 1968, c.29.

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prevent or reduce the number of disputes arising, as well as
providing machinery for settling them. If we look at the problem
in this way, we see at once how important are the new adminis-
trative bodies which have been set up to study, plan and coordi-
nate work in the fields considered in this paper. The Commission
on Industrial Relations, the Race Relations Board, the Com-
mission on Monopolies and Mergers, the new Director General
of Fair Trading are all permanent constructive forces whose
main work is to try to make sure that the dispute settlement
machinery has no work to do. To this extent, all the adminis-
trative and settlement machinery is part of the same process.

2. Though there are those who are genuinely concerned about the
growth of administrative power, bodies such as these will have
an increasingly large part to play in structuring the social and
economic relations of the next generation. In particular, we may
be seeing the beginning of a new approach to civil litigation in
which access to the courts at the higher levels of the dispute
settlement pyramid is restricted until lower level machinery has
been exhausted. We may increasingly come to acknowledge, for
reasons of economy as well as social effectiveness, the legal
significance of the total range of settlement techniques, and
perhaps succeed in putting adjudication by courts into its proper
perspective. Much certainly needs to be done to modify the court-
centred emphasis of legal education.

3. Lastly, and perhaps many would put this first, the English
experience of the last few years has re-emphasized the importance
of consensus as a basic precondition of law. And it has shown us
how delicately balanced our social consensus may be. As long as
citizens accept the authority of the State and the existence of
rights and duties created by the State, conflict can be contained.
But as soon as any major group in our society questions our
complacent assumption that law should be obeyed just because
it is law, the conflict moves into a broader socio-political arena.
If workers will gladly go to prison rather than obey a court’s
order; if trade unions will refuse to submit to the jurisdiction of
a court; if prisoners strike against the conditions of their im-
prisonment, we may well be faced with the need to consider a
new social contract in our society as a whole. Consensus remains,
as always, fundamental to the existence of the State and the law;
how to maintain that consensus remains, as always, the most
delicate political problem of all.