A selection of reviews on the latest IER publication

What they said:

This book is very timely as it marks the centenary of the Trade Disputes Act. Trade unionists need to continue to campaign for stronger union rights to protect and defend today’s workers.
Brendan Barber, General Secretary TUC

Some of the most important reforms in British history are as a result of trade union campaigns. This book reaffirms that trade union freedoms are an essential part of social progress
Billy Hayes, General Secretary CWU

“The call for a Trade Union Freedom Bill has caught the imagination of the labour movement. There is a determination to bring our laws up to date to reflect the realities of the modern work place. These reforms are long overdue”
Carolyn Jones, Director Institute of Employment Rights

“The Trade Union Freedom Bill has the potential to become an important reform which will help us to defend our members from the worst excesses of outsourcing, contracting out and PFI. We welcome this important initiative and congratulate the Institute on another excellent piece of work.”
Dave Prentis, General Secretary UNISON

“100 years ago unions won a struggle for protection from legal action. 50 years ago we had the declarations on fundamental rights for trade unionists ratified by the UK, which should have progressed things further. But it’s worse now than in 1907. Our calls for better rights in 2007 are more than justified.”
Derek Simpson, General Secretary AMICUS

“The restoration of trade union rights is one of the most important questions facing trade unionists today. That is why we support the Trade Union Freedom Bill and welcome this publication by the Institute of Employment Rights as an invaluable contribution to the campaign for reform.”
Tony Woodley, General Secretary T&G

A Review in Industrial Law Journal

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.

TONIA NOVITZ
tonia.novitz@bristol.ac.uk

A Review in Historical Studies in Industrial Relations

The Right to Strike is an important study of the Trade Disputes Act, 1906. The Act was in full operation until the Thatcher era, other than in the world wars and the periods of the post General Strike Trade Union Act, 1927 (1927-46) and Ted Heath’s Industrial Relations Act, 1971 (1971-74). A fresh study of this pillar of the British voluntaryist system of industrial relations is to be greatly welcomed. Much of the book is excellent.

Part of its strength comes from the Keele School of research into the history of industrial relations. Dave Lyddon and Paul Smith have set high standards with Historical Studies in Industrial Relations meeting the expectations of both industrial relations and history specialists. Their journal has succeeded where others have failed in providing analyses of industrial relations, which genuinely combine careful, thorough and reflective historical research with a strong grasp of all the relevant industrial relations literature. The arrival of John McIlroy at Keele has further strengthened the reputation of Keele for such work on the historical dimensions of industrial relations.

John McIlroy’s essay on Quinn v. Leathern is a lucid and comprehensive study. It examines the sectarian and other social contexts of the case concerning Henry Leathern, a butcher of Lisburn, Northern Ireland. Hitherto, one has drawn on Ken Brown’s briefer discussion in a broad essay on trade union law. Professor Brown, incidentally, has lived in Lisburn for some forty years. Professor McIlroy’s essay is notable for its research not only into the legal background of the case but also into Lisburn and Belfast sources for the social context.

Graeme Lockwood in dealing with the much better-known Taff Vale case builds on Philip Bagwell’s major work on the Amalgamated Society of Railway Servants. While the author begins his essay by proclaiming the need ‘to have a basic understanding of its history’ in order to appreciate its history, the author uses too broad a brush on the general historical background (‘Between 1810 and 1875, all trade unions were expanding at an unprecedented rate amid boom conditions’, p.13). His survey concludes with a call to trade unionists to mobilise ‘to change Conservative anti-trade union laws to at least gain the freedoms enjoyed from 1906’ (p.28).

The core study of the trades Disputes Act, 1906, is a major essay by John Saville, first published in Historical Studies in Industrial Relations. This essay was a fresh look at the legislation and its context, following on from the major work by Henry Phelps Brown, Clegg, Fox and Thompson (collectively) and Fox as well as himself. John Saville rightly pointed out, ‘What is often missed in the discussion of the Taff Vale case is that other unions began to be mulcted for damages in cases brought against them’, p.96. The freshest aspect of John Saville’s essay was to provide the most detailed examination of the Parliamentary support and discussion of the making of new trade union legislation.

Saville’s essay is followed by two fascinating essays on legal cases. Keith Ewing provides a masterly analysis of the trade union membership case in the South Shields shipbuilding industry, Conway v. Wade, 19087, a notable precursor of the Rookes v. Barnard judgement, 1964. The surprising verdict, apparently undercutting the 1906 Act, encouraged some in the trade union movement to question the way the jury system then operated. The TUC did not wish to reopen the 1906 settlement but, as Professor Ewing observes, it was ‘the time to hold what you had’ (p.118). The Liberal government rejected employers’ attempts to undo the 1906 Act.

Douglas Brodie provides a study of a 1938 clash over Crofter Hand Woven Tweed, where the island producers and transport workers blocked cheaper imported material. In this instance at no level did judgement go against the trade union, even if there were some very bizarre assessments of trade union motivation made by judges.

The perversities of judges when assessing trade union action is given much merited attention by Roger Welch in his essay ‘Judicial Mystification of the Law: Rookes v. Barnard and the Return to Judicial Intervention’. This makes many good points, not least in contrasting the worst possible interpretations given to trade union actions with Lord Halsbury’s sympathetic handling of commercial competition between trades (p.118). The judges’ attitudes might be compared to those of the French, where ‘liberté, fraternité, egalité’ was interpreted by the judge and middle classes as protecting the individual from trade union coercion.

It also is at one with the individualistic Liberalism expressed in the late nineteenth century by Herbert Spencer and others, as exhibited in the 1891 volume of essays, A Plea For Liberty, produced as a riposte to Fabian Essays In Socialism, 1889. Such individualistic libertarianism, with its hostility to growing powers of the state and to trade unionism, became a major strand of British Conservatism. Roger Welsh’s nineteenth century examples of the judiciary being savage in dealing with pickets can be complemented by memorable examples in the Webbs’ History of British Trade Unionism.

The legal history of the 1906 Act is surveyed in two essays, one by Dave Lyddon and Paul Smith on the first fifty years, the other by Bob Simpson on the period from 1952. The Lyddon and Smith essay rests on substantial national and local archival research, and as a result it is a considerable contribution to the study of British industrial relations. The use of Home Office, Ministry of Labour and Liverpool material provides fresh details of the authorities’ attitudes to picketing.

While the historical studies add to knowledge, the book as a whole makes a case for a Trade Union Freedom Bill. The final two essays make a strong case for the Bill drafted in 2006 with the assistance of John Hendy, QC. A third essay, by Brian Bercusson, is on the conflicting concerns of European law on free movement and the rights of working people to take collective action. The European Court of Justice’s verdict on this conflict, as Professor Bercusson notes, ‘may transform what has been the pattern of British industrial action during the past 100 years’ (p.222).

The book would have benefited from an index. Otherwise, it is highly commendable. It is a substantial volume in content as well as size. It should be read by all interested in current and past issues concerning the right to strike in Britain.

A Review by John Green

Conspiracy formed by a number of unscrupulous enemies acting under an illegal compact, together and separately…Such a conspiracy is a powerful and dangerous engine…employed by the defendants for the purpose of organised and ruinous oppression. These are the words of a judge, Lord Brampton, not as you may imagine about a dastardly Mafia criminal conspiracy, but about a group of trade unionists trying to prevent the use of non-union labour! OK that was in 1901, but it demonstrates the traditional judicial collusion with the owners of capital against trade unions. It also demonstrates the inappropriateness of the judiciary being involved, as a matter of course, in industrial disputes.

This valuable and very informative book is a commemorative reminder of the Trade Disputes Act of 1906 – the great breakthrough for trade unions, when, for the first time, they were given legal immunity for actions carried out ‘in furtherance of a trade dispute’. But the book is much more than a commemoration. In the twelve contributions from some of Britain’s leading experts in law and industrial relations, it covers the history of the struggle for trade union rights since that watershed legislation in 1906, up to today, when unions find themselves, once again, having to fight for basic rights. Although unions in Britain clearly still enjoy a number of valuable rights, they are less free to operate than most of their brother and sister unions in the rest of Europe, and Britain’s trade union laws flout some of the basic rights anchored in the internationally agreed international labour standards of the ILO.

It is an irony of history that the law in Britain today is, in many ways, more restrictive on trade unions than it was 100 years ago when the Trades Disputes Act came into force. That Act provided simple legal protection for trade unions for 65 years. And it is a matter of acute shame that this present, so-called, Labour government is unwilling to do anything to restore union freedoms abolished under the Thatcher government.

This book, in presenting the background, as well as cogent arguments for a full repeal of Thatcher’s anti-union laws, will hopefully give renewed impetus to the Campaign for a Trade Union Freedom Bill and its passage through parliament. This, though, will only happen as it did with the first positive trade union legislation, as a result of extra-parliamentary struggle by trade unionists everywhere. The time is ripe for it and public perceptions are favourable.

Without full legal protection for trade unions, workers are left to fight with bows and arrows against the tanks and cruise missiles of the employers. The latter have their strong organisations and full legal protections. When are employers ever hauled to court for abusing the rights of their workers, when they hand out redundancy notices, close factories or rob pension funds?
But when, for instance, the miners go on strike, the full might of the state, the media and the judiciary go on the offensive like a well-disciplined army.

Trade unionists are not demanding anything more than a fair playing field – the right to organise, to picket, to take solidarity action to be able to defend their members’ interests. In a modern state, that should be taken for granted. But, as this book clearly demonstrates, the struggle for democratic rights is never ending as long as we have capitalism. Employers will always attempt to curtail workers’ rights and to hobble trade unions in order to be free to maximise their profits. Trade unions set up the Labour Party in the first place to ensure that their interests were fully represented in Parliament. Sadly, those interests are no longer defended by New Labour.

This is a valuable reference book and campaigning tool for trade unions to achieve new legislation.

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