Thatcherism, logic and the law
Taken from the New Statesman archive, 22 February 1980.
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During the last week the government has fired the first shots in a long campaign against the trade union movement. Three vital proposals have been canvassed: a trade unionist's immunity from the law is to be limited to the first customer or first supplier of the employer with whom he or she is in dispute; supplementary benefit is to be withdrawn under the notorious 'deeming' provisions which will force – or try to force – unions to pay strike benefit; and unions are to be liable again in damages for industrial action which is outside the statutory immunity.
These proposals are not moderate. They are a concerted attempt to destroy the effectiveness of industrial action. On the one hand, the ambit of lawful industrial action will be severely limited. On the other, if what is permitted is to be effective, strikes will have to be longer and the drain on union funds will become progressively insupportable. It is not an exaggeration to say that if these proposals were law then the present steel strike would certainly have failed by now.
As everybody knows, under the present law a trade unionist has immunity from legal action when acting in furtherance of a trade dispute. Despite a fierce rearguard action by the Court of Appeal, the House of Lords in the MacShane case and the private steel case has shown beyond doubt that this is the law.
The Employment Bill as it now stands limits the right to picket to the workplace of those picketing but does not deal with the effect of the Lords' decisions. The consultative document published on Wednesday is the Tories' response. Industrial action is to be lawful against the employer with whom the union is in dispute or his 'first' customers or 'first' suppliers. Against anyone else it will be illegal. Take the MacShane case. The NUJ was in dispute with the local press. It called on its Press Association members to stop supplying copy to the provincial papers. Some members, fearful for their jobs, refused. The NUJ then called on its members in the national papers not to handle PA copy until the PA stopped supplying copy to the local papers. The Tories' proposal would make the call to PA members lawful but the call to members in the national papers unlawful. Sympathetic action would be most definitely out.
The proposal itself is fraught with legal difficulty. What about chains of interlinked companies, all with separate legal identity but in reality the same body: are they all 'first' customers or suppliers? Can unlimited industrial action be taken against 'first' customers or suppliers, or are there to be limits? Who qualifies as 'first' customers or suppliers? They must, it appears, be 'substantial' customers or suppliers and the courts are going to be allowed to decide what that means.
The proposal is not even logical in terms of the Tories' own ideology. Why should there be a difference between 'first' customers and suppliers and others? If the purpose of the limitation of industrial action is to prevent 'innocent' parties being affected by a trade dispute, then the 'first' customers or suppliers are no less 'innocent' than others. This illogic is a firm indication that the proposal is only the first stage of a deliberate design which has as its object the abolition of the right to take any form of sympathetic action.
THAT IS ONE arm of the pincer. The other is the attack on trade union funds. The proposal announced last week by the Government to deprive strikers of an amount of supplementary benefit equal to the amount 'deemed' to be payable by their union as strike benefit is vindictive and cruel. The family of a criminal in prison does not forfeit the right to social security but the family of trade unionists on strike will. Prior has mentioned a figure of £10 per week as the 'deeming' amount. The reason for the proposal is said to be the public's concern that the ISTC, with funds of £11m, has not been paying strike pay. But the ISTC has 95,000 members on strike. That would mean a deeming amount of £950,000 per week. At that rate a strike could only last a month or two at best and the union would be bankrupt before the strike could succeed.
The proposal also ignores the fact that, contrary to what is popularly supposed, many unions are not wealthy. It is an open secret for example that the AUEW could not begin to pay strike pay over any lengthy period of time. Unions on the whole do not have vast funds and often what they do have is tied up in property.
It is this property which will come under attack if the Tories go ahead with the proposal to to make unions again liable in damages. At the moment a union cannot be sued for damages caused by industrial action. The Tories are set to change that. So if for instance the ISTC went ahead and picketed the private steel companies in breach of the first customer/first supplier rule, it would be liable to pay a vast sum in damages to each one of those private companies.
Trade unions under these proposals will be forced to fight long wars of attrition. Because they cannot take effective strike action, the strikes against employers will be lengthened and intensified to make them bite. But at the same time their funds will be subject to the needs of strikers and their families and at each step the unions will have to weigh up the risk that any industrial action will bring with it a crippling damages claim.
The Industrial Relations Act of 1971 was an attempt by the last Tory government to bring the whole of industrial relations within a tight legal framework. It involved the creation of a special court, the idea of registered and non-registered unions with the infamous section 96 which meant that non-registered unions (and TUC policy was not to register) lost the right to strike. It was seen rightly by the trade union movement as a weapon to alter the balance of power decisively against the interest of the working class.
This time the approach is more insidious. There is not the heavy hand of the Industrial Relations Court and the cumbersome machinery of the Industrial Relations Act. But no one should be deceived by Prior's 'softly softly' approach. No one should be deceived by the 'rift' in the Cabinet from which Prior is presented as the victor for moderation whose offerings a grateful trade union movement should accept with relief. The method is different but the effect is the same. After all, why bother with special courts and special law when the ordinary courts and the common law will do the job with equal enthusiasm? The one sure prediction is that, once again, it will be breakfast, dinner and tea for the lawyers and nothing short of disaster for everyone else.