The government's publication of its draft Codes of Practice on picketing and the closed shop has already provoked considerable concern among trade unionists and lawyers about the Codes’ status and legal effect.
The draft Code on picketing provides, among other things, that a lawful picket will very rarely exceed six people ‘and frequently a smaller number will be sufficient’. Responsibility for deciding the ‘right’ number of pickets rests on the police. If a picket refuses to leave a picket line when told to by the police he or she is liable to arrest for obstruction. Trade union officials are to be responsible for ‘ensuring that pickets understand the law’; and the Code lists a large but, it says, not comprehensive range of ‘essential supplies and services’ with which picketing should not interfere at all.
Although still only in draft, the Code seems to be taking effect. Two weeks ago, police limited the CPSA picket at the Brixton office of the Department of Employment to six, and arrested for obstruction those pickets above six who refused to move. There were protestations by the police and Jim Prior that this was nothing to do with the draft Codes, but they seemed a trifle disingenuous.
Codes of Practice are not uncommon and can be of assistance. The TUC has its own codes on picketing and the closed shop. But the Government’s Codes are exceptional in two respects. First, codes published under the Employment Protection Act 1975 have so far been the work of ACAS and have been concerned with relatively uncontentious issues such as the mechanics of time off for union activities and disclosure of information by employers to unions. There was a broad measure of agreement between unions and management on the ACAS codes and of course ACAS is independent of the Government and is specifically and solely concerned with improving industrial relations. Prior’s draft Codes introduce highly controversial provisions relating to industrial action which affect, essentially, only one side of industry and, as the Government knows, are vigorously opposed by the very people to whom they apply. They are not (as Codes of Practice are supposed to be) an impartial guide to industrial relations but a statement of the Government’s partisan views.
There is a crucial difference between Government’s Codes and the ACAS codes where enforceability is concerned. Industrial tribunals are obliged to take the ACAS codes into account, if they consider them relevant, whatever legal issue is in dispute before them. But of course tribunals have very limited jurisdiction. By section 3(8) of Prior’s Employment Act it is not only a tribunal but a court (any court) that is obliged to take them into account. So for the first time, Codes of Practice are to be used in the High Court — presumably in labour injunction cases — perhaps even in criminal courts. The section does not specify civil courts.
Mr Prior’s claim that the Codes are just ‘guidelines’ cannot therefore be taken seriously. They carry the potential for making greater inroads into trade unionists’ rights than the Employment Act apparently intends. For instance, under the Act, workers may picket only at their own place of employment; but if that provision is met, there appears to be no further restriction on the picketing. However the Code says — and a court must take account of this — that numbers of pickets (and this includes workers employed at the workplace being picketed), should be limited to six or less. So a person’s right to picket at his or her own place of work may be denied if more than six are already there. The provision in this way becomes not a ‘guideline’ but a specific directive.
Prior has insisted that these Codes do not enlarge the criminal law. But it is curious, then, that the provision relating to the number of pickets comes in the section dealing with the police’s duty to limit picketing. The average Magistrates Court is no great repository of constitutional learning and might well be tempted to justify a crackdown on pickets by reference to the Code of Practice.
Many of the provisions of these codes (such as those dealing with essential supplies) are provisions a lot of Tories wanted to see as legislation. At the moment they stand simply as a vacuous litany of imprecations which are not attached to anything in the Employment Act at all. In a year’s time, though, the Government may say that the Codes have been in force for 12 months, some unions are not obeying them, and it is a natural progression to make them more directly enforceable as Acts of Parliament.
The Government’s union legislation as it presently stands is like a quarter-completed jig-saw puzzle. The Employment Act is a hopelessly obscure and inconsistent document. It is draconian in its limitation on picketing to an employee’s own place of work. Yet other forms of industrial action are much less affected. For example, the decisions in the case of Express Newspapers v MacShane and the case brought by private sector employers during the steel strike are apparently unaffected, even though the Tories suggested they were the justification for the Act.
There is no logic in the new Employment Act, or in the Codes, unless they are placed the context of Jim Prior’s ‘step-by-step’ approach. It should not be thought that Mr Prior and his more extreme back-benchers differ in the end they have in view, for they merely favour different means of achieving it. Going step by step instead of full pelt is only a less conspicuous way of reaching exactly the same destination.