Tony Blair set out Labour's policy in 1997: "The essential elements of the trade union legislation of the 1980s will remain . . . The changes that we do propose would leave British law the most restrictive on trade unions in the western world." The Labour leadership has not changed its stance. The Tory anti-union laws remain essentially untouched. The improvements introduced by the Employment Relations Act 1999 and the 2004 act, which becomes law later this autumn, are modest. The TUC leader, Brendan Barber, described the government's proposals for this year's act as "extremely disappointing". "The government would be unwise to ignore the real anger in unions today," he said.
But union anger has been ignored. The lobbying of employers, on the other hand, has not. Whenever a proposal from the EU gives rights to workers, the government seeks to water down the legislation or obtain an opt-out. Thanks to Britain's opt-out on maximum working hours, employees here work the longest hours in Europe. When the EU drew up its Charter of Fundamental Rights, now part of the European constitution, the Attorney General was sent to demand that British anti-union laws be preserved. As a result, the constitution provides that national law overrides the fundamental rights to collective bargaining, industrial action and protection against unfair dismissal. The Foreign Secretary, Jack Straw, told the CBI that the government had "put the interests of business at the heart of our negotiating position".
While the government has sought to dilute new international laws, it has simply flouted existing ones. The British anti-union laws over which the Attorney General obtained the EU concession are precisely those (though there are many more) that have been most condemned for breaching the international treaties on labour law that Britain has ratified. Both the Council of Europe in relation to its European Social Charter and the International Labour Organisation in relation to its conventions have told Britain in no uncertain terms of its failure to honour trade union rights. Yet the government refused to make the necessary changes to the new employment relations bill.
Labour's insistence on the "essential elements" of the Thatcher legislation - in particular, the absence of the right to strike - has a real impact on justice in the workplace. In the notorious Friction Dynamics case, 86 workers in Carnaervon complied with the onerous balloting and notice provisions and took lawful strike action to restrain the derecognition of their union, the T&G. The employer sought to sack them after the statutory eight weeks of unfair dismissal protection had expired. A tribunal found that an earlier letter had dismissed them within the eight weeks. So they won the case. But they remained sacked.
The government refused to amend the 2004 legislation by extending the eight weeks to 12, pointing out that this would not have helped the Friction Dynamics workers. But that was because of the modesty of the amendment. The government should have heeded the finding of the UN International Covenant on Economic, Social and Cultural Rights that "failure to incorporate the right to strike into [British] law constitutes a breach of . . . the Covenant. The . . . concept that strike action constitutes a fundamental breach of contract justifying dismissal is not consistent with protection of the right to strike."
Had the government responded appropriately to this finding, the 2004 act would make it unlawful for an employer to dismiss a worker on lawful strike. That would have restored to British law some of the international legitimacy it once had.
John Hendy QC is national secretary of the United Campaign to Repeal the Anti-Union Laws. For details , write to PO Box 17556, London EC2Y 8PA or phone 020 7269 0365. A campaign rally, "The Fight for a Workers' Charter", will take place at 11am on Saturday 13 November at Conway Hall, 25 Red Lion Square, London WC1