How can we resist the Trade Union Bill?

29 July 2015 By Professor Keith Ewing and John Hendy QC

Commentary icon30 Jul 2015|Comment

Lord John Hendy KC

Chair of the Institute of Employment Rights

Professor Keith Ewing

President of the Institute of Employment Rights

29 July 2015

By Professor Keith Ewing and John Hendy QC

Trade unionists will meet at the NUT’s Mander Hall in central London this evening, united in their fury about Tory attacks on their civil liberties.

What is at stake is an attempt to silence the trade union political voice and to emasculate its industrial power. Neither will succeed — trade unions are too important and their support too strong. A bloody battle of wills is about to unfold.

From the first British legislation against collective bargaining in 1349, we have had to fight for our rights — against the Combination Acts of 1799 and 1800, not repealed until 1824; against the judges to achieve the Trade Union Act of 1871; and against the judges again to pass the Trades Disputes Act 1906 (a struggle which was instrumental in forming the Labour Party).

After the General Strike of 1926 a Tory government clamped down again, and it took until 1946 to restore lost union rights.

For some of us, the Bill represents a return to the past, with haunting memories of the Thatcher era.

It was in the 1980s under Margaret Thatcher and John Major that the legislative knife again cut deep into trade union freedom, with excessive notice requirements before strikes, mandatory postal ballots for industrial action, a ban on all forms of solidarity action, the permissible victimisation of unofficial strikers and restored liability in damages.

Trade unions found themselves on the wrong end of injunctions, and in the 1980s found out about what it meant to have their assets sequestrated and to lose control of the administration of their own affairs.

Our resistance was ineffective. And we failed to insist that a Labour government reversed these incursions. We need to learn from these mistakes.

We need also to learn from our great victories of the past, beginning with the Labour government’s In Place of Strife, proposing tight controls on the right to strike.

That white paper never progressed to a Bill because of the concerted opposition of the industrial and political wings of the labour movement, with the Trade Union Group of Labour MPs mobilising within the Labour Party to block its progress.

This was followed by even more far-reaching proposals from the Tories eventually legislated in Edward Heath’s Industrial Relations Act 1971.

The Tories embarked on an ill-judged and ill-fated attack on industrial action of various kinds, introducing controls on unofficial and solidarity action, as well as unprecedented restraints on disputes in essential services.

Unlike In Place of Strife, it was not possible to prevent the enactment of the Industrial Relations Act.

But the Tories gave up on it in the face of resistance from the rank and file in the “Kill the Bill” campaign and the strong support of the TUC and its affiliates.

Indeed such was the strength of that resistance that the Act was little used after 1972 and was repealed by Labour in 1974.

It is of course the case that as a movement we were stronger in the 1970s.

But there are nevertheless lessons of leadership and unity to be learned from these experiences — lessons of working strategically in the face of hostile legal controls, and lessons about the unsustainability of legislation in the face of strong worker demands.

Indeed, the Bill may soon be unworkable if interest rates rise, as the Bank of England predicts and the demand for higher wages cannot be contained.

Add to that the fact that Thatcher was much smarter than David Cameron, with a series of well-paced reforms making trade union resistance hard to mobilise, that the political landscape has changed starkly since the heady days of Thatcherism, and that we now have a better understanding of international labour conventions and a more fully developed human rights culture. Labour rights are popularly understood to be human rights.

In terms of the political landscape since the Thatcher era, the big change of course has been Scotland.

How can the Tories begin to justify imposing its extreme measures on a country where it has one MP and no mandate? The Bill represents contempt for both the Union, as well as contempt for trade unions, with the former rather than the latter under greater threat to its survival as a result.

As the STUC has pointed out in a blistering attack on the Bill, it runs contrary to the approach being taken in Scotland “where unions, employers and government are working together through the Fair Work Convention.”

As the STUC also points out, the Tory attack will serve only to fuel demands that trade union law be devolved, though it is likely to fuel other demands as well.

It seems that Cameron has forgotten the lessons of the poll tax, and that a refresher course is now required.

No doubt that could be organised by the STUC, which condemns a Bill that cuts across the “very positive role unions play at the workplace,” in “tackling low pay, job insecurity, inequality, underemployment and skills shortages to improve productivity and … reduce poverty.”

In the light of their long struggles for their rights unions will now consider their options for resistance.

One avenue will be the possibility of legal challenge. Courts have never offered the unions much comfort but it is possible that the Bill may be vulnerable to challenge on three grounds, though much may depend on how it is amended as it passes through Parliament, where the Trade Union Group of MPs and our friends in the House of Lords will do their best.

The areas of legal vulnerability, however, relate to the political levy, the new balloting requirements, and the picketing proposals.
All of these measures restrict the right to freedom of association and in some cases also the right to freedom of expression and assembly.

In the case of the political levy, the restrictions add to the other so far legally untested restrictions on political freedom in the coalition’s Gagging Act.

The legal onus will be on the government to justify these restrictions as being “necessary in a democratic society” for “the protection of the rights and freedoms of others.”

In considering that question the human rights court will give the government a “wide margin of appreciation” and will look at the extent to which the restrictions are proportionate in balancing the rights of trade unions and employers (and others).

On the right to strike the government will be required to justify not only whether the requirement of 40 per cent support of those eligible to vote (and a 50 per cent majority of all eligible voters in the case of some public-sector strikes) is a proportionate restriction.

It will also be required to justify the thresholds in the context of a postal voting system that is not only disproportionately expensive but also designed to produce a low turnout.

Similarly, on the right to picket peacefully, in the context of freedom of assembly, the government will be required to justify the requirement that trade unions provide information to the police and employers about their picketing plans, but more importantly to explain why the legal protection for peaceful picketing will be lost because a picket-line supervisor has inadvertently left his or her armband at home.

This is only the start, as alongside the Bill we also have even more extreme proposals to regulate picketing and the use of social media during trade disputes. Legal options will doubtless be explored here too.

History shows, however, that litigation is no substitute for the united voice of organised labour aroused to demand its civil liberties and defend its political freedoms.

This article was originally printed in The Morning Star newspaper on 29th July 2015. For a link to the original article, see the following link on the Morning Star Website

Lord John Hendy KC

Lord Hendy KC is Chair of the Institute of Employment Rights. He is a barrister specialising in industrial relations law, based in Old Square Chambers, London. He is President of the International Centre for Trade Union Rights (ICTUR) and a Vice President of the Campaign for Trade Union Freedom.

Professor Keith Ewing

Professor Keith Ewing is Professor of Public Law at King's College London. He has written extensively on labour law including recognition procedures and international standards. He is the President of the Institute of Employment Rights and a Vice President of the Campaign for Trade Union Freedom.