By Gemma Short and Sacha Ismail
“[Since 1980, trade unions have been] regulated, harried, battered, fined and sequestrated, step by step by step, in Act after Act in pursuit of the aim of decollectivising the workplace.”
– Labour peer Bill Wedderburn on the last of nine Tory anti-union Acts, 1993
“For the unions to fulfil the purpose of maintaining and improving the conditions of their members… unions have to have the legal freedom to operate. That means they must demand that the anti-union laws are repealed.
“No doubt the demand for repeal will draw contempt, criticism and scare stories from the press. But the arguments in favour of repeal and replacement are formidable and irrefutable. Furthermore, the movement has its own culture, history, images and analysis which are as persuasive as anything the media can create.
“More importantly still, if the movement does not go on the offensive with its ideas and vision, there is left a void which is filled only by the ideas and vision of its enemies…
“The labour movement should pursue a campaign for repeal and replacement with enthusiasm and energy.”
– Bob Crow of the RMT and John Hendy QC, 1998
Will a Corbyn government repeal the anti-union/anti-strike laws introduced by the Tories in the 1980s and 90s and kept in place by New Labour – laws that make trade unionism really only semi-legal in Britain? The answer is not yet clear, despite Corbyn and many of his close allies’ long history, pre-2015, of campaigning on this crucial issue.
In 1946, Clement Attlee’s government repealed the anti-union laws introduced by the Tories in 1927 after the defeat of the General Strike. Although Britain’s capitalist state still engaged in strike-breaking, under governments of both colours, for several more decades workers and their unions enjoyed extensive legal immunities under which many different forms of workers’ action were legal or at least not illegal. Immunities of this sort had first been established by a reforming Liberal government in 1906, at the time of the rise of the Labour Party, after labour movement campaigning pushed back an attempt to severely restrict the right to strike.
Proposals from Harold Wilson’s government in 1969 for relatively mild anti-union laws, in response to a rising tide of strikes in the late 60s, were dropped without much struggle because of opposition at the top of the labour movement. Laws actually introduced by the Tories in the early 70s were gutted by explosive workers’ resistance and then repealed by Wilson’s second government.
Then, from 1980 through to 1993, the Thatcher and Major Tory governments introduced a series of laws (for a detailed timeline see the Institute of Employment Rights website) which made most forms of trade union action illegal, as part of their successful fight to beat down organised labour.
As each attack was introduced, virtually the entire labour movement, including the Labour leadership, opposed it. Until after the miners’ defeat in 1985 the anti-union laws already passed were rarely deployed. With the crushing defeats that then began to mount up and the Kinnockite reaction in Labour, more and more restrictions were accepted and even embraced. By 1997 Tony Blair was boasting that Britain under his government “will still have the most restrictive union laws in the Western world”. He was true to his word. Unlike Attlee and unlike Wilson in the 70s (unlike, even, the Liberal government of 1906), the Blair and Brown governments maintained all existing anti-union laws. The unions were placated with minor changes to recognition procedures, the main result of which was a few “sweetheart” deals getting unions recognition in return for smothering workforce resistance, like USDAW’s deal in Tesco.
The “moderate” union leaders who dominated until well after 1997 were happy enough with this situation. In the 90s union delegates at Labour Party conference regularly voted against motions to repeal the anti-union laws and unions put up milder motions on union rights to knock out more radical ones from CLPs.
What are the anti-union laws?
Since the 1997-2010 Labour governments left the earlier anti-union laws in place, the 2016 Trade Union Act simply built on their foundations. Read the IER timeline for more detail, but the cumulative essentials of the pre-2016 anti-union laws are:
• Postal ballots, extensive notice periods and requirements to provide information, to slow down, atomise and blunt workers’ organisation and decisions for strikes/industrial action.
• Preventing effective picketing (eg blocking entrances) and mass picketing.
• Banning “flying pickets”, ie going to other workplaces to picket, talk to workers about a struggle and ask them not to cross.
• Banning strikes/action over anything but very narrowly defined workplace/industrial issues.
• Banning solidarity strikes/action in support of other workers in dispute.
• State control over various aspects of union decision-making.
• Banning the “closed shop”, ie the ability of unions where they are strong enough to make union membership in a given workplace compulsory.
Over two decades before 2016, these laws had made much of what is necessary for effective workers’ action illegal – at the same time that employers’ freedom of action against workers has been not only maintained but extended. Increasingly over the years, with declining union and rising ruling-class confidence, the laws have also been used to ban actions blatantly within the limits of the law on technicalities, with judges only too happy to oblige.
Keeping solidarity illegal
Among the most shameful features of this anti-labour legal structure is surely the banning of solidarity action. As the IER’s recent Manifesto for Labour Law puts it, this outlaws the “whole ethos of the trade union movement” – “not only collective strength, but mutual support in times of trouble. To ignore that is to ignore the very nature of freedom of association, since the ties of solidarity are between members of the association and extend to those whom the association supports, irrespective of the identity of those by whom they are in turn employed.”
Solidarity action was once relatively common. A tremendous example was the strike by 24,000 South Wales miners in support of NHS workers’ pay claim in 1982. The same year Sean Geraghty, secretary of the London Press branch of the Electricians’ Union, was taken to court after his members stopped the Fleet Street presses for 24 hours in support of the same cause. Photos from these actions are included at the top of this article. The 1972 wave of walkouts which freed five dockers jailed under the anti-union laws introduced and then defeated in the early 70s was solidarity action, but also an unofficial mass political strike.
A much more recent case, in which the two groups of workers had a closer connection, was Heathrow baggage handlers walking out in support of hundreds of mainly Asian women catering workers at the airport sacked by subcontractor Gate Gourmet in 2005. Their strike was doubly illegal, “secondary action” as well as action without a ballot – of course, because those making solidarity were outraged and felt the need to move fast.
The Gate Gourmet dispute, defeated after the baggage handlers were demobilised by the leadership of the Transport and General Workers’ Union (the main predecessor of Unite), caused outrage in the labour movement and provoked widespread calls for repeal of the ban on solidarity action. In that context even arch Labour right-winger Roy Hattersley, who has popped back up recently to attack Momentum, could write, in an article that is fascinating on a number of levels:
“Secondary picketing – indeed secondary action in general – is, on any rational analysis, often justified and frequently laudable… Solidarity is no longer fashionable – indeed, in industry and commerce it is illegal. But in a decent society it out to be encouraged rather than condemned… It all comes down to the most important political question: whose side are you on? … The odds have always been stacked against low-paid workers. Gate Gourmet employees, and people like them, have no chance of a fair deal unless they receive help from friends. Secondary action is more than necessary. It is right.”
If only we heard that kind of forceful and eloquent case from Jeremy Corbyn and John McDonnell today!
At the 2005 Labour Party conference, the leadership suffered a defeat when virtually all union delegates and 40pc of CLP delegates – producing a 70:30 overall result – voted for a TGWU motion on Gate Gourmet demanding legislation “permitting lawful supportive action at least where there is a close connection between those involved”.
For a while after there was talk of a sustained campaign around the anti-union laws. It didn’t happen. As it turned out, even further motions at Labour Party conference was apparently too much for most of the union leaders. The 2005 mood was allowed to fade. This despite almost all unions by then having policy against the anti-union laws, and the election, from around the turn of the century, of a new generation of leaders who presented and in fact sincerely saw themselves as more left-wing.
In the last few years of the Blair-Brown governments, backbencher John McDonnell made a number of attempts to introduce bills in Parliament to at least weaken the anti-union laws by repealing or modifying the worst elements of them, using the title “Trade Union Freedom Bill”. He won a surprising amount of support from Labour MPs, but little active support from the unions – meaning no chance of impacting the House of Commons’ overwhelming Blairite-Tory majority. Even a bill seeking to prevent the use of minor technicalities to invalidate strike ballots was rejected.
Sacked Gate Gourmet workers, 2005
The Corbyn era
From 2010, of course, Labour was out of office; and most union leaders either toed the line with Ed Miliband’s leadership or were alienated from Labour. With the dramatic events of 2015, however, came some movement. That year’s Labour conference unanimously passed a resolution with key clauses originating in a model motion circulated by the Right to Strike campaign set up to fight the Trade Union Bill. Among other things it committed the next Labour government to “legislate for strong rights to unionise, win recognition and collective bargaining, strike, picket and take solidarity action” (see full text here). In September 2015 and January 2016 Corbyn told the media that he supported scrapping the anti-union laws, specifically defending solidarity strikes and flying pickets.
After that, however, as the leadership ran into trouble, little more was said about the issue. Corbyn’s campaign materials during the second leadership election promised to repeal the newly passed Trade Union Act – as if that wasn’t something everyone in the party, right as well as left, agreed with. Many people started repeating the pledge as if it was a radical left-wing policy – an example of how to miseducate people. The 2017 general election manifesto contained many proposals for strengthening workers’ rights, but in terms of the anti-union laws once against limited itself to the TU Act. Labour’s election coordinator Andrew Gwynne told the Guardian that the party simply wanted to return to the legal situation that had existed in 2015: no one in the leadership contradicted him.
Then the 2017 conference passed, once again unanimously, a motion the key elements of which came from the text promoted by The Clarion. Once again a small left-wing group did what the leaders of giant unions had failed to do! This called for Labour to “repeal the anti-union laws introduced in the 1980s and 90s”. Not long after Young Labour’s policy conference passed a similar policy. Yet neither the party nor its leaders have advertised these decisions or spoken out against the anti-union laws, despite Corbyn’s assurances that from now on conference will make Labour policy.
Limiting our ambitions
Despite the recent upheaval, the labour movement is still cursed by a widespread acceptance, no doubt not always conscious or deliberate, that completely repealing the anti-union laws is unrealistic. This has a long history. Even in the midst of the Gate Gourmet crisis, when the unions and in particular his union were being more pushy on the issue than at any time in the last thirty years, TGWU general secretary Tony Woodley thought it necessary to make clear he didn’t want to go too far. Solidarity, he wrote, “needs to be exercised responsibly… bring solidarity action within the framework of the law – define its scope and make it subject to the same regulations on balloting and notice which regulate other industrial disputes at present”.
As then Communication Workers’ Union executive member and now TULO (the Labour-affiliated union liaison body) Vice Chair Maria Exall responded to this: “The trouble is all of the whole edifice of anti-union laws, which put such a lid on industrial disputes, also needs scrapping… These laws [have] strengthened employers and weakened workers. They undermined trade union constitutions, making them less effective… In particular, British workers’ right to strike is [severely] limited.”
Decades of virtual silence in all the places that mattered, punctured occasionally by the kind of weak opposition exemplified by Woodley in 2005, has helped educate a generation of union activists as well as leaders not to tackle this issue. It is striking how rarely the demand to repeal the anti-union laws, and not just the Trade Union Act, comes up unless you raise it first, even when in discussion with left-wing and militant trade unionists.
Some union leaders, while they probably feel anti-union legislation has gone too far, appear to have got quite comfortable with a system which puts them and the bureaucracies they head in (partial, limited) control. Far from treating the anti-union laws as a hostile imposition, let alone seeking to defy them, union officials often act as their primary enforcers – even in the case of the Trade Union Act. That inevitably shapes their political stance and willingness to campaign against the anti-union laws too: allowing workers to take action with less reference to union hierarchies and potentially facilitating a flow of new disputes and struggles must be quite an uncomfortable prospect.
Hence de facto support for modification rather than abolition – and reluctance to struggle seriously even for that. In 2015 it was Unite representatives at the Labour conference compositing meeting who ensured that an explicit call to repeal all the anti-union laws was removed from the final motion put to delegates.
At the same time, many of the large new generation of left-wing Labour Party activists do not know what the anti-union laws are or perhaps even that they exist: which is why “Repeal the Trade Union Act” can sound radical rather than the abdication it actually is. The leadership has failed in its duty to educate on this crucial question. In those circumstances, no wonder that the conference decisions have so far had so little impact (this also tells you something about the problems with Labour’s democracy and policy-making culture, of course) and that there is relatively little campaigning around this, so far.
The Campaign for Trade Union Freedom
In the 1990s, as a Labour government approached, two campaigns for repeal of the anti-union laws were set up, the Campaign for Free Trade Unions and Reclaim Our Rights. They merged to form the United Campaign for Repeal of the Anti-Trade Union Laws, which in turn merged in 2013 with the older Liaison Committee for the Defence of Trade Unions. The resulting Campaign for Trade Union Freedom has done and continues to do valuable work. It is closely associated with the Institute of Employment Rights, whose Manifesto for Labour Law, quoted above, would make a serious difference if fully implemented. Among other things, it advocates the right to take solidarity action.
Corbyn and McDonnell have made positive statements about the manifesto, but those statements gave no commitments on the anti-union laws. (McDonnell’s does, however, talk about “a future… in which employers and workers can work together to create a stronger economy…”) Moreover they do not talk about the manifesto and its demands anywhere else, certainly not “in public”.
The actual contents of the manifesto – which deserves a detailed review in its own right – are relatively strong, but the publicity for it and the published summaries say nothing about repealing the anti-union laws. The glaring danger is that a Corbyn government will take bits of it which sound congenial and easy to sell, particularly in relation to collective bargaining between employers and unions, and ignore the more radical-sounding and controversial bits (let alone the need to go further). But as the manifesto itself puts it well, “collective bargaining without the right to strike is collective begging”.
At the CTUF-IER fringe at the 2017 Labour conference, none of the speakers even mentioned anti-union laws other than the TU Act, except party chair Ian Lavery – who said that while he supported the right to solidarity action “it’s not party policy” and argued that “we can’t just repeal all these laws – we have to be clever about it”. In addition to evidently not knowing about the policy passed in 2015 (and 2005!), Lavery and the other panellists seemed not to know about the policy which was going to conference that very afternoon. At the time of writing the CTUF have still not reported its passing on their website.
It is not at all clear what the CTUF does to change the fact that most of the unions formally supporting it do little to raise the issue of the anti-union laws and in some cases oppose attempts to raise it.
While the IER manifesto can play an important role in the campaign around what a Corbyn government does on this, the situation described here suggests that it will not do so automatically, without a grassroots push to ‘change the conversation’.
What to fight for, how to fight
We should emphatically reassert the demand to repeal all the anti-union laws. Demanding the introduction of positive rights is essential, but that should not be counterposed to repealing the laws limiting union autonomy and workers’ ability to fight. Such a counterposition seems to be a trend that has crept into the labour movement when dealing with these issues. As the IER manifesto explains, positive rights of various sorts cannot function without a strong right to strike. As it hints but does not explains clearly, that necessitates repealing all anti-union laws. We must say, as activists on these issues did in the 1990s: “Repeal and replace”.
We should not let anyone dodge the question of whether, under the situation they advocate, workers and unions will be more restricted than they were in 1979. To put it another way: under the laws that will exist after the first term of a Corbyn government, would the strike action the miners took in 1984-5 be legal or illegal?
The 1997 Labour manifesto said: “We make it clear that there will be no return to flying pickets, secondary action, strikes with no ballots or the trade union law of the 70s”. We need precisely to make it clear that this is what we seek to return to, or rather that we want to make it easier for workers to take action than it was in the 1970s.
We need a visible, pro-active campaign around this – not as an organisational alternative to the CTUF, but as a movement of activists pushing for our unions, the CTUF, Labour and indeed Momentum to stand up and fight. In doing so, we need the spirit displayed by the FBU’s newly elected General Secretary Matt Wrack in 2005 when he told the TUC: “We want the most restrictive laws on trade unions in the Western world removed as fast as we want Blair removed”!
The Picturehouse workers’ dispute has repeatedly been stimied by the anti-union laws
An acid test
This is no small issue. Well short of anything like a comprehensive socialist program, there are of course many areas in which Labour policy needs to be strengthened, but the right of workers to organise and strike is surely decisive for any politics that seeks to go beyond liberalism – for a meaningfully left, let alone meaningfully socialist agenda. Moreover, this is the issue that can help unlock many the other issues. Workers’ space and ability to fight will surely be decisive for achieving the movement’s wider demands and perhaps to defending the viability and success of a Corbyn government. If the anti-union laws remain, we will be facing a potential eruption of struggles and dangers with our arms tied behind our backs.
Of course the Tories, the right-wing press and Labour “moderates” will scream at the notion of solidarity strikes, mass pickets and so on. There is no way of avoiding that if the public is going to be educated about the nature of the labour movement – in other words, if the labour movement is going to be rebuilt. The pressure not to do this will only grow once Corbyn is in office, particularly if the party has not clearly set out the goal beforehand. The aim of repealing the anti-union laws and winning positive rights for workers, including a strong right to strike, must be proudly and forthrightly declared as soon as possible.
Laws themselves only have so much power: after the Thatcher government introduced its first anti-union laws it did not feel confident to use them. It was the defeat of the unions and the destruction of a large part of their organisation – in part because of their leaders’ unwillingness to fight the assault being launched against them – which gave the anti-union laws their power. As things have developed, even more debilitating than the laws themselves has been the movement’s acquiescence in them, which has helped to corrode and gut the basic culture of self-activity and solidarity.
Winning repeal of the anti-union laws is very far from all Britain’s trade union movement needs to do to rebuild itself in the 21st century, but it is an essential part of what is needed. It is an acid test for a left-wing Labour government, for judging whether it is actually left-wing. Fighting seriously to make it happen is an acid test for the whole labour movement.
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