Taken from The New Statesman 27 November 1981
During his ten years as Labour Prime Minister Tony Blair refused to repeal the employment laws passed by Margaret Thatcher's Conservative government. Yet, in the early 1980s, before his election to parliament, Blair, a young barrister, wrote a number of articles in the New Statesman in which he argued against such legislation. He claimed that Norman Tebbit's Employment Bill of 1981 threatened not only trade-union freedom but representative democracy itself.
Selected by Robert Taylor
Britons, unlike the citizens of many industrial countries, have no fundamental right to strike — which makes it easier for Mr. Tebbit to introduce his 19th century laws for 20th century workers. Barrister Anthony Blair reports.
The government has renewed its open war on the trade union movement, from which it appeared to have retreated slightly when faced with the realities of industrial relations. In no possible way can the proposals on trade union immunities, announced by Norman Tebbit to the Commons on Monday, be seen as a continuation of the ‘softly softly’ approach of Jim Prior. If enacted, trade union law will be pushed back into the nineteenth century, regardless of the twentieth century character of the industry and society in which unions operate.
The main proposals are as follows: Unions are to be liable for damages for industrial action. The range of lawful industrial action is to be substantially reduced. Contracts requiring employers to use unionised labour are to be outlawed. The squeeze on the closed shop is to be made tighter still.
Trade union funds have enjoyed immunity from suit since the Trades Dispute Act of 1906, apart from during the brief life of the 1971 Industrial Relations Act. Of all the clauses in that Act, it was the penalising of union funds that gave rise to some of the most intense industrial conflicts. Indeed in the 1870s, when trade union legislation first developed to protect the unions against the judiciary, it had been assumed that no liability could attach to the union as an entity in itself for the industrial action of its members.
The Taff Vale decision of 1901 shattered this view. The railway union ended up paying £35,000 (a horrendous sum of money in those days) to the private Taff Vale railway company. So the 1906 Act was passed giving blanket immunity o the union as a union.
The reasons for the immunity were plain. Treating a union like a corporate body assumes a vertical organisation, governed from on top. It ignores the local, democratic base of the union structure. To make a union liable for the acts of its members is to make it liable for the acts of a multitude of different people and officers and committees. But in many industries, it is committees at shop, plant or district level which are actually responsible for week by week negotiations and actions.
The Tebbit proposals say that it is only officially ratified action for which the union will be liable. But the proposals specifically embrace the decision of the House of Lords in Heatons Transport v TGWU in which the Lords ruled that shop stewards in general acted with the authority of the union and thus defined union liability very widely. The Act is, in effect, a serious attack on the right of union bodies below top level to make their own decisions and will introduce much more severe strains between head offices and their members.
More damaging, perhaps, for the healthy survival of union, is the cost to a union in financial terms of meeting a judgment. A limit of £250,000 is set, but it is likely that this maximum sum could be claimed often by companies, for any major industrial action by a union is likely to exceed that threshold. The steel strike was supposed to have cost over £1 million a week to the private steel companies. Contrary to popular suspicion, unions are not wealthy and some are in dire financial straits. The question will be how much risk unions will take nationally and how much companies have to gain by suing a union to the point of bankruptcy.
These dangers would be immeasurably increased if more industrial action is made illegal. The most startling proposal is the limitation on the words ‘trade dispute’. Immunity from suit is only given to a union’s members (or, pace Tebbit, to a union) when action is in furtherance of a trade dispute — and subject, of course, to other limitations in the 1980 Employment Act which has already had a noticeable effect in limiting strike action. A ‘trade dispute’, as presently defined, covers practically anything in the field of industrial conflict.
The Tebbit proposals mean limiting ‘trade dispute’ to only those matters wholly or mainly to do with a dispute between an employer and his own employees. Sympathetic action is out, as would be action such as the extension of the steel strike to the private sector in 1980 (a problem that will be intensified by the hiving off of more sections of a ‘whole’ industry to the private sector.) The International Transport Federation action against owners of ships flying flags of convenience employing cheap nonunion labour is out. Grunwick-type action is out.
Indeed, on one reading, secondary action of any type may be fatally limited. Many disputes involve the union calling on its members employed in a firm which is not directly party to a dispute to take action. Is this unlawful? And can the employer who is in dispute, himself take action against a union to stop it getting the support of the employees of his supplier?
The clear intent of the proposals is to cut out any action which involves anyone other than the immediate parties. That is a draconian limitation on effective industrial action, as a company itself is free to get work done by all sorts of other companies. It will hit women, black and low-paid workers who are usually outside the centres of ‘industrial muscle and most in need of support, especially hard.
The proposal could also have an effect on employers’ attitudes to national collective bargaining. If a dispute between one employer and one union is subject to negotiation at national level between one or more employers in a federation and a number of different unions, then under the Tebbit proposals the employers lay themselves open to the argument that all of them are collectively in dispute with all of the trade unions. If however they were to abandon national collective bargaining and operate on an individual level, then it would be very hard for the unions in the same industry to extend industrial action beyond the particular company in dispute. The ability of unions to defend conditions across an industry, including in companies where unions had a weaker bargaining position, could be seriously undermined.
Besides these gargantuan chunks out of union immunities, the other proposals look minor. The closed shop proposals are much as expected: compensation for someone dismissed for not joining a union is increased and could, in theory, reach over £20,000; the employee so dismissed can make the union a party to the proceedings and thus liable in compensation; and there are further provisions for a periodic review of existing closed shops. The proposals again dismiss the fact that pressure for a closed shop often comes from the shop floor and a head office may be unable to prevent its members imposing their own rules.
The proposed ban on union-only contracts from local authorities will be felt, amongst other things, as yet another blow against the freedom of Labour controlled local authorities to take their decisions. Many of them see it as a matter of basic principle that they give out certain contracts only to unionised firms. The government gives the right to non-unionised contractors to ignore any such clause in a contract — and even, soit appears, to claim for ‘discrimination’ if refused contracts on this basis. So non-unionised companies can take up their place in the ranks of the oppressed!
The unions will have to study these proposals carefully but I do not think I exaggerate their importance. The National Union of Seamen has ordered a stoppage of all freight and passenger shipping between Northern Ireland and the mainland in furtherance of their dispute with P&O ferries. Is it fanciful to think that under these proposals the action would be declared illegal within a few days, and a loss of £250,000 claimed against the NUS in respect of the action that had already taken place?
The renewal of the Tory attack on union immunities brings into sharp focus the fundamental unfairness of union law in Britain. It was the courts which, in the first place, made unions and all they did illegal. They fashioned courses of action specially to help the employers’ interest. In other countries, but not this one, employees have a fundamental legal right to strike and take sympathetic industrial action. The only way unions here could be protected was to devise the notion of ‘immunity’. As soon as this happened, the cry went up that they had ‘special privileges’, even though all ‘immunity’ did was limit the special privileges enjoyed by British employers. And all these union ‘privileges’ amount to is the ability to function as a union — which aim can hardly be declared unlawful in a democracy.