11 January 2016

By John Hendy QC and Professor Keith Ewing, Chair and President of the IER

Today marks the House of Lords coming to grips with the government’s Trade Union Bill. The trade unions are campaigning to ‘Kill the Bill’ just as they did with the Conservatives’ Industrial Relations Bill 35 years ago, when Ted Heath was Prime Minister.

The Bill has been widely condemned and seems to enjoy little support beyond Westminster and Whitehall. At a time when the government may need the goodwill of trade unions and trade unionists to deliver on the EU referendum, it seems particularly inopportune to be mounting an attack now on the financial security of trade unions, on diminishing their political and campaigning voice, while also imposing further restrictions on the right to strike.

Led by the TUC, unions have responded with a vigorous campaign against the Bill and won some notable concessions in the House of Commons. Police powers have been shaved, and the government has yielded to pressure, by withholding proposals to require unions to give notice to a State official of protest plans and anticipated social media use during the course of a dispute.

But in truth these are minor victories: flea bites on the tail of the dog. This still leaves a monster that is in clear breach of Britain’s international legal obligations, by undermining freedom of association, the right to bargain collectively, and the right to strike. The UK has ratified these rights in the Conventions of the International Labour Organisation, the International Covenants on Civil and Political, and on Economic, Social and Cultural Rights, the European Social Charter, the Charter of Fundamental Rights of the EU and, of course, the European Convention on Human Rights.

Further concessions may nevertheless be secured in the House of Lords, where the focus will be the right of employers and unions to agree to ‘check off’ arrangements, whereby the employer deducts trade union dues from workers’ wages (with the consent of the workers in question), before passing the money over to the union. This is a convenient way for workers to pay their subs, but it is to be banned, without any adequate explanation.

Focus will also be on the new rules on the trade union political levy, the default position being changed in what is a clear and cynical attempt to reduce trade union funding of the Labour Party. This of course is not the only government attack on its opponents, the Bill coming soon after the Gagging Act 2014 cut the ability of unions to campaign in elections, and at the same time as Osborne’s decision to slash ‘Short’ money to parties in Parliament.

Finally, there is likely also to be renewed concern about the swingeing restrictions on the right to strike. Although there are many new restraints on strikes in the Bill, the headline issue is the requirement of a minimum 50% ballot turnout to legalise all disputes, and a minimum 40% support threshold in disputes in important public services. A core issue here is the continuing ban on the right of trade unions to hold secret ballots at the workplace.

At this stage, it is unclear whether the Lords will be able to stop the Bill as some people hope, or whether they will be able to secure meaningful concessions, as others perhaps more realistically expect. The House of Lords has already shown an independent streak, notably in its rejection of Osborne’s tax credit cuts. The question now is whether the Lords has been emboldened or chastened by that experience. Does it have the stomach for another fight?

The issue for trade unions, of course, is what will happen next if, as expected, the Bill is enacted. Will it provoke a return to the politics of the 1970s, when trade unions and trade union activists mobilised to defeat the Industrial Relations Act, having failed to stop the Industrial Relations Bill? Or will it produce a repeat of the 1980s and 1990s when unions yielded to Thatcher’s legislation in the face of injunctions, contempt and sequestration?

The circumstances today are of course very different from either the 1970s or 1980s. The nature of the government’s ‘mandate’ for far-reaching change of the kind to be seen in the Trade Union Bill is highly contestable. Supported by only a third of the votes of those who voted and only a quarter of the electorate, this looks more like a coup d’etat by ballot box than an expression of democratic politics.

Also different is the fact the Trade Union Bill goes well beyond what either Heath or Thatcher contemplated, as is the fact that Cameron is legally accountable in a way unlike any of his Tory predecessors. The first injunction under the Bill will be challenged on human rights grounds (whatever happens to the Human Rights Act), in what will be the start of a long guerrilla campaign against the Bill in the courts.

But litigation takes time and has unpredictable outcomes. What is predictable, however, is that trade unions will adapt to the new legal regime in ways that will make them harder to control. Len McCluskey of Unite has already warned an audience of industrial lawyers that if legal restrictions on the right to strike are pushed too far then workers will take the law into their own hands.

Indeed, Unite has removed from its rulebook the constraint that it will only fulfil its objectives ‘so far as may be lawful’. It may be, however, that the risk to the government is not that trade unions knowingly take action in breach of the law, so much as a feeling on the part of activists with a grievance that the legal obligations are screwed so tight as to be not worth engaging with in the first place.

Denied the right to strike, workers will find other ways to express their grievances. So if the past is to be any guide to the future, we may well find that trade union activists develop a different relationship with their unions. As a result, we may see more informal, disorganised, spontaneous ‘wildcat’ action of the kind that has been associated with recent disputes in the construction industry. This will be much harder to contain.

Even in authoritarian regimes, people and organisations adapt rather than succumb to excessive regulation. While testing the provisions of the Bill politically, industrially and legally as best they can, trade unions can be expected also to do the same. Six million people are unlikely to be easily cowed.

A version of this article was published in The Independent

John Hendy and Keith Ewing recently published two publications analysing the Trade Union Bill in terms of its potential consequences, its legality, its ideological basis, and unions' options to fight back. Click below to read more and make a purchase.

Protect the right to strike: Kill the Bill - just £5!

The Conservative Government’s proposed strike ballot thresholds: The challenge to trade unions - just £6!