29 January 2016

By Adrian Williamson QC, Keating Chambers

The Conservatives argue that their Trade Union Bill is a necessary response to current union abuses. In truth, the Bill is reminiscent of the debates leading to similar legislation passed by a Conservative government in 1927, the Trade Disputes and Trade Unions Act (‘the 1927 Act’). The 1927 Act was, at the time, highly significant and contentious. It was so resented by the Unions, and the Labour movement more generally, that it was a running sore until its repeal by the post-war Labour government in 1946.

The 1927 Act followed the General Strike which had ended, in defeat for the unions, in May 1926. The Conservative government therefore decided to pass legislation ‘to declare and amend the law with respect to illegal strikes’. Following extensive debate within (and outside) government, the 1927 Act declared certain strikes and lock-outs illegal; sought to prevent ‘intimidation’ by pickets; required that union members contributing to a union political fund should ‘contract in’ rather than ‘contract out’; and prohibited civil servants from joining TUC-affiliated unions.

In four areas in particular, there is an overlap between the current Bill and the proposals discussed and/or enacted in 1927.

Firstly, Clause 2 of the 2015 Bill imposes a new 50% ballot requirement for all strikes. Ballots were considered in 1927 and rejected on the advice of the employers. The Minister of Labour (Steel-Maitland) told his colleagues that the belief that ballots would avert stoppages was ‘generally a delusion’. He suggested that the Cabinet Committee dealing with the legislation should consult industrialists. Representatives of the employers attended a meeting of the Committee and made clear that they were ‘opposed to the principle of the secret ballot because [they] thought it would be ineffective as a remedy’.

Secondly, Clause 3 requires a 40% ‘support requirement’ for strikes in ‘important public services’. In 1927, a minister circulated a proposal that strikes be prohibited in essential industries until after an inquiry. This suggestion produced a powerful dissent from Steel-Maitland. It would, according to him, have been a quite revolutionary step in the British approach to industrial relations. The Cabinet therefore rejected the proposal.

Thirdly, Clause 9 makes unlawful any picketing where the union does not provide a ‘picket supervisor [who] must wear a badge, armband or other item that readily identifies the picket supervisor as such’. Section 3 of the 1927 Act dealt with picketing, but did not include such provisions, since they, too, were considered and rejected.

Tory activists had argued that ‘the right to picket and peacefully persuade’ should be removed from the unions. The government agreed, although only that there should be precautions against the abuse of the right of ‘peaceful persuasion’, not a limitation of that right itself. The compromise concluded on picketing made no attempt to restrict peaceful picketing as such. By section 2 of the Trade Disputes Act 1906, Parliament had declared peaceful picketing lawful. The 1927 act clarified that picketing ‘in such numbers or otherwise in such manner as to be calculated to intimidate any person in that house or place, or to obstruct the approach thereto or egress therefrom, or to lead to a breach of the peace’ was unlawful.

However, despite the General Strike, the Cabinet resisted calls for stronger action. Employers and Conservative activists urged that there was no such thing as peaceful picketing and that section 2 of the 1906 Act should simply be repealed. Indeed, the 2015 proposal to ‘badge’ peaceful pickets was specifically considered in 1926/7 and rejected as impractical. The legislation was limited to the abuses which, according to the police, had resulted in violent picketing during the Strike.

Finally, Clause 10 of the Bill provides that it is unlawful to require a member of a Union to make a contribution to the political fund of a Union if the member has not given an ‘opt-in notice’. This essentially reproduces section 4 of the 1927 Act, which required that union members ‘contract in’ to such political levies. The Labour movement saw this as a partisan act of revenge by the Conservatives in the wake of the Strike.

The issue of the political levy has had a long history for the Conservatives. In the 1909 case of Osborne, the courts effectively outlawed such levies. In response, the Liberal Government passed the Trade Union Act 1913, which regularised the position as to political funds and permitted union members to ‘contract out’. In 1918, the Representation of the People Act tripled the number of eligible voters. The subsequent rise of Labour, supported by a greatly expanded working-class electorate, presented an obvious problem for the Conservatives. The political levy, in particular, was a subject of pressing concern. In 1921, a backbench MP presented a Bill to amend the 1913 Act. A further Bill was introduced in 1922. Both Bills foundered. In 1925, another backbencher presented the Political Levies Bill. The Conservative government decided not to support the Bill, in the interests of ‘peace in the industrial world’. Churchill (then Chancellor of the Exchequer) nonetheless urged his colleagues that a Bill be passed ‘to liberate workmen from the thraldom of the Levy’.

As Steel-Maitland pointed out, this might not be the safest basis on which to proceed:

the major part of the outcry against the political levy is not motived (sic) by a burning indignation for the Trade Unionist … It is based on a desire to hit the Socialist party through their pocket and it uses the comparatively small proportion of cases of injustice … as a smokescreen under which to make the attack.

However, the government eventually gave way to grassroots activists’ demands for change. Section 4 of the 1927 Act declared that all paying the levy must actively opt in. Although the language of the 2015 bill is somewhat updated, the procedure and approach today are very similar. In 1927 Labour’s reaction once the proposals were unveiled was furious: according to Philip Snowden, the change to the levy was an attempt ‘to cripple the Labour party’.

The impact on political funds was immediate and significant. As at the end of 1925, only about 3% of union members contracted out of their union’s fund. During 1927, the Conservatives engaged in a publicity campaign to advise union members of their new rights. This paid dividends: there was a huge decrease after 1927, from about 3.9m levy payers in 1926 to 1.9m by 1935.

The unions and the Labour Party treated the 1927 Act as a major reverse and worked tirelessly for its repeal. Within days of its enactment, the TUC had declared war on the Act. At the September 1927 Congress, a resolution was passed decrying ‘the deliberate class bias displayed in [the Act]’ and demanding ‘the immediate repeal of such repressive legislation’. Labour was largely out of power until 1945, but in 1946 was able to repeal the Act. The Conservatives fought hard to resist repeal and, once it had occurred, sought to persuade Trade Unionists to contract out.

The Conservative government in 1927 refused to legislate for many of the proposals now contemplated in the current Bill, although they were discussed in detail at Cabinet level. Ballots, special provisions for public service strikes, and restrictions on peaceful picketing all had their advocates, but these arguments did not prevail. Even in the excitable atmosphere engendered by the General Strike, more emollient views carried the day. There is little reason to suppose that it is wise to dust down such proposals a century later, or that the ‘doves’ were wrong in their assessment in the 1920s.

It is, indeed, noticeable how much the somewhat muted debates of 2015 echo the more raucous exchanges of 1926/7. This is particularly true of the political levy. This was not a question that had been exposed by the Strike. On the contrary, this was an issue to which the Conservatives had repeatedly returned after 1913. It was, moreover, a partisan and highly contentious matter, which led (together with other sections of the 1927 Act) to decades of bitterness.

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