A Review in Industrial Law Journal

Submitted by carolyn on Wed, 28/11/2007 - 16:05

This edited collection of essays was published in 2006 so as to commemorate the adoption of the Trade Disputes Act 1906. It does so by providing detailed historical analysis of the context in which this legislation was introduced, alongside discussion of the ways in which these statutory provisions have been applied and modified subsequently. The over-arching concern is that expressed by Jim Mortimer in the Foreward: ‘[t]he law in Britain on trade disputes is today more restrictive on trade unions than it was 100 years ago after the passing of the Trade Disputes Act 1906’ (p.viii). The volume closes by making the case for contemporary legal reform, beginning with the adoption of a Trade Union Freedom Act, so as to provide greater protection for organisation of (and participation in) industrial action.

Published by the ‘think tank for the labour movement’, the Institute of Employment Rights (see http://www.ier.org.uk/node/6), the first chapter of the book sets out the strong political motivations that lie behind exploration of this topic. While Keith Ewing and Carolyn Jones, the President and Director of the Institute respectively, wish to celebrate the centenary of the 1906 Act, they also identify the limitations of the content of that legislation. For example, they explain how casting a freedom to strike as an immunity, rather than as a positive right, has led to the paucity of legal protection for workers and their organisations. They state that: ‘Trade unions should also have rights which empower them and their members. These rights should be clear and unequivocal, and they should properly equip trade unions as autonomous bodies to act within the boundaries of international labour standards to protect the interests of their members. This means a right to organise, a right to bargain and a right to strike in a new legal settlement for British trade unions to deal with the sharp practices of globalisation.’ (p.5)

This political agenda would seem to be shared by the contributors to this volume, who consist of a range of prominent labour lawyers and activists. However, it should be stressed that the content of the individual chapters is highly informative and far from didactic. Each essay provides a significant contribution to our understanding of the origins of the 1906 Act, as well as the ways in which its key provisions been interpreted through key cases and adapted in subsequent legislation. This collection offers original analysis of primary sources and new insights into the social tensions that underlay these legal developments.

In particular, Part 2, which sets out ‘Legal Origins of the Trade Disputes Act’, should be of interest to legal historians as well as labour lawyers. Here careful attention is paid to the social circumstances leading to the decision in Taff Vale Railway Company v Amalgamated Society of Railway Servants [1901] AC 426 (by Graeme Lockwood) and the contemporaneous judgment in Quinn v Leathem [1901] AC 495 (by John McIlroy). Both chapters provide an engaging account of the motivations of management and labour, and also investigate the positions taken by the judges given responsibility for resolving the disputed legal issues.

Part 3 focuses on the content and interpretation of the Trade Disputes Act 1906. John Saville provides an intriguing view of the political background to adoption of the statute, which goes some way to explain the limitations of its content. Keith Ewing examines the case of Conway v Wade [1909] AC 606, considering how these legal proceedings challenged (if not subverted) the legislative intent of 1906. In his examination of the Scottish case of Crofter Hand Woven Harris Tweed v Veitch [1942] AC 435, Douglas Brodie puts forward the sophisticated argument that, while that judgment is best known for its treatment of the law on conspiracy, it is more problematic than it might at first appear in terms of its illustration of a judicial propensity to take ‘a rather restrictive approach to the interpretation and application of the immunities’ (p.144).

Part 4 is devoted to an examination of the hundred years that followed adoption of the 1906 Act, and is perhaps the most significant in that it examines the transformation of the immunities set out in the original legislation by subsequent Parliaments and interpretation of the immunities when challenged by employers before the Courts.

Dave Lyddon and Paul Smith address the ‘First Fifty Years’, identifying the rise of trade union membership, as well as the significant role of picketing in industrial relations during this period. This chapter is notable for its analysis of events leading up to the General Strike and the restrictions placed on the 1906 Act by the adoption of the Trade Disputes and Trade Unions Act 1927 which remained in force until repealed by a Labour government in 1946, (although it was only when wartime regulations were repealed in 1951 that the prior status quo was achieved). The chapter ends by considering the alignment of forces, which by the end of the 1960s would act against the Trade Disputes Act: ‘many major employers and their associations, senior members of the judiciary, and the leadership of the Conservative Party’. Lyddon and Smith suggest that: ‘It was the shift inside the last that was the vital factor.’ (p.168)

Bob Simpson considers the ‘Second Fifty Years’, placing considerable emphasis on the role of the Courts from Thomson v Deakin [1952] Ch. 646 to P v NASUWT [2003] 2 AC 663. He considers that the endeavour to have the 1906 Act provide a ‘bedrock’ for protection of the right to strike has been weakened by three factors: the first being its ‘vulnerability to idiosyncratic judicial construction’ (p.190); the second being ‘the weakness inherent in the common law system which enables judicial creativity to outflank the intentions of Parliament’ (p. 190); and the last being ‘the law on industrial ballots… and notices to employers’ which ‘render[s] the space for legitimate industrial conflict largely illusory’. It is in this respect that one can assume the actions of Conservative governments have played a significant part.

Roger Welch in the final chapter in this section supplements this analysis by describing ‘Judicial Mystification of the Law’ (p. 195), tracing the ways in which judges describe and approach trade union action from Taff Vale to Rookes v Barnard [1964] AC 1129 and into the 1970s. In particular, he observes that by providing only immunity for those calling industrial action (as opposed to a positive right to strike), the Trade Disputes Act of 1906 could be depicted by the judiciary as ‘granting privileges to break the law rather than providing for democratic and human rights’ (p. 216). His view is that, ‘with the benefit of hindsight’, that ‘its method of creating rights through the provision of immunities has not proved to have served the trade union movement well’ (p.216).

Part 5 is headed by the question: ‘Towards a Trade Union Freedom Act?’ It begins with the further question posed by Brian Bercusson, namely whether we should regard ‘European Laws’ as ‘Help or Hindrance’? He observes that there has been little interaction between EU law and industrial action, but highlights the importance of the most recent litigation: Case C-341/05 Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Avdelning 1 of the Svenska Byggnadsarbetareförbundet, Svenska Elekrikerförbundet OJ C291/10, 12 November 2005; and Case C-438/05 ITF and the Finnish Seamen’s Union v Viking Line ABP and OU Viking Line Eesti OJ C60/16-18 11 March 2006. Since this book was published, the cases have finally been heard. (For an exceptionally helpful analysis of the actual submissions made to the European Court of Justice, see again B. Bercusson, ‘The Trade Union Movement and the European Union: Judgment Day’ (2007) 13 European Law Journal 279.) The Opinions of the Advocate-Generals were made available on 23 May 2007 (see http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-341/05 and http://curia.europa.eu/jurisp/cgi-bin/form.pl?lang=EN&Submit=rechercher&numaff=C-438/05), but at the time of writing the European Court of Justice has yet to deliver its final judgments. Bercusson’s discussion in this chapter as to whether a fundamental right to take collective action can constitute a legitimate exception to EC law relating to freedom of movement for goods, services and establishment nevertheless remains instructive, and seems likely to prove a very useful source of reference once the Court’s conclusions are made available. What his chapter suggests is that, regardless of the outcome of this key litigation, if one is looking for concrete support for the right of trade unions to call industrial action, one is unlikely to find this in EU law. At best, it is only open to the European Court of Justice to decide, by virtue of the EU Charter of Fundamental Rights and its own general principles jurisprudence, that such a right is exempt from breach of free movement provisions set out in the current EC Treaty.

The final two chapters proceed to make the case for further legal reform. John Hendy and Gregor Gall consider the state of British trade union rights today, citing the Gate Gourmet and Friction Dynamics disputes as key examples of the failure of the present legislative regime. They then present the reasons for adoption of a Trade Union Freedom Bill, outlining the key amendments that such legislation would make, with reference to the UK’s failure to comply with international labour standards. The last chapter by Simon Deakin and Frank Wilkinson makes a further supplementary ‘Economic Case for the Trade Union Freedom Bill’. Their argument is that it is, contrary to popular wisdom, ‘possible to combine freedom for trade unions with low unemployment and stable prices’ (p. 290). After thoroughly debunking the myth that the only way to achieve low inflation is to reduce trade union influence over wages, and identifying the costs of such a strategy for British workers, they suggest that there is an alternative viable model based on centralised collective bargaining, namely ‘the improvement of wage bargaining arrangements to ensure greater equality and a closer integration of inflation controls with other economic and social objectives’ (p. 292). Their conclusion and that of the book is that:

‘Such a programme requires freedom for trade unions. It is only then that they will be able to fully represent their members’ interest giving them the confidence that they will not be called upon to bear the full cost of policy adjustments’ (p.292).
As this review of its contents suggests, this book serves both an informative and political function. It coincided intentionally with the decision taken by the General Council of the Trades Union Congress (TUC) in 2006 to endorse a draft of the Trade Union Freedom Bill, which is published on its website at http://www.tuc.org.uk/law/index.cfm?mins=560, following advice from John Hendy QC. John McDonnell MP has since raised the issue as a Private Members Bill in March and again in October 2007. For many of the reasons highlighted in this book, which so perceptively identifies the powerful interests opposed to legal protection of a right to strike, the even modest content of the Bill seems unlikely to win support in the present UK Parliament. However, one would want to refer Members of the House of Commons to this book’s exceptionally thorough analysis of the consequences of failure to make the reforms proposed.


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