TNAG-0232-FCO40-268-Legislation-relating-to-registration-of-trade-unions-in-Hong-1970 — Page 61

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for differing views on interpretation as well as policy, we believe that these articles at least make it clear how important it is to clarify the law. We would also urge that the law be amended along the lines proposed at the end of the article of July 31st, so as to grant in full the right to strike and to picket peacefully.

Peaceful picketing

In the article just refered tc, the writer pointed cut that the definitions of "intimidation" and "injury" in section 2 of the Trade Union Registration Ordinance drastically erode the right of Hong Kong's workmen to picket. This at any rate is the view of the leading legal text on the subject, Citrine's Trade Union Law, 3rd ed., p.22. We are disturbed to see that if any- thing does in fact remain of the right to picket conferred by sections 96 and 47 of the Trade Union Registration Ordinance, Clauses 23 and 24 of the draft Bill seem to be directed towards further negating that right. The amendments proposed are by no means "minor" and the Explanatory Memorandum is misleading in this regard.

Clause 23 takes away the right to picket cutside an employer's (or, indeed, any person's) home where that is not also his place of work. In the United Kingdom the recent Royal Commission considered this point and a majority concluded that the Commission had had no evidence of abuse of the right to picket a man's home as would justify such a restriction (Report of the Royal Commission on Trade Unions and Employers' Associations (1965-1968) Cmnd.3623), paras. 876–7) This seems also to be truc for Hong

Kong.

Clause 24 makes it an offence to picket if a person blocks or causes an obstruction in a street cr road on the ground (according to the Explanatory Memorandum) that such action will almost certainly cause unreasonable annoyance and may, in certain circumstances, amount to intimidation. We strongly oppose this amendment; if it goes through it will moan that picketing which is free of violence, threats, or intimidation, might still be a criminal offence. Moreover, Clause 23 having taken away the right to picket outside a person's house, Clause 24 now in effect takes away the right to picket outside a person's workplace, for in most cases workplaces are on streets and roads which it will now be an offence to cbstruct. (Picketing inside the workplace will not be possible as in nearly every case it will constitute a trespass.) Further, what amounts to en obstruction is not defined, so that in practice the courts will rely on police officer's evidence as to their

view at the time. We notice that it is already

the law that it is an offence to picket in unreasonably large numbers so that this new amendment must be designed to meet the case where the pickets, not through their cwn design, cause a crowd to collect. Should not this problem be met simply by the police requiring those spectators to move on?

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So far as we can judge Clause 23 and 24 remove such of the vestigies of the right to picket which remain under the existing law. They put Hong Kong back into the situation which prevailed in England before section 2 of the Trade Disputes Act 1906. of the very basic purposes of section 2 (on which our section 46 is modelled) was to justify a user of the highway which would otherwise constitute a trespass at common law (see Ferguson v. O'Gorman [1937] I.R. 620). Clause 24 now proposes to contradict this basic purpose.

Debarment from holding office in a trade union

Of equal concern to us is the proposed amendment, in Clause 12(c) of the draft Bill, to section 17(3) cf the Ordinance. The Clause bars a person from holding office in a trade union if he

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