Trade Union and Employment Forum: Related Events

Trade Union Rights: Why is Britain always different - and always worse?

Keith Ewing, Professor of Public Law at King's College London, Sarah Veale, head of equality and employment rights TUC, John Monks (Lord Monks of Blackley), former General Secretary TUC, General Secretary of the European TUC, Jim Moher former national official CWU and TGWU. Chaired by John Edmonds, former General Secretary of the GMB.

Keith Ewing opened the meeting by examining the history of collective bargaining in Britain since 1916, as this today seemed the main problem for the trade union movement. Despite some positive legislative changes in union recognition law during the terms of recent Labour governments, this had not stemmed the tide of falling collective bargaining coverage in most workplaces. By 2005 it was down to 36% and by 2010 to 32% and still falling. This trend posed serious questions as to what the union function is.

He recalled two moments when direct state intervention and strategy in Britain assisted the growth of collective bargaining . Firstly, 1917-21 - during the political crisis of war-time which led to a very intense process of institution-building involving the major unions and employers - the Whitley Joint Industrial Councils and the Wage Councils set up by Trade Board Acts of 1918. About 5 million workers' wages and conditions were governed by these collective arrangements. The Ministry of Labour was created in 1916, with the specific remit to boost the spread and coverage of these institutions. This situation developed from 1921 up to 1931, ending when the National Government was formed.

The second moment was in 1934 under a Conservative government, but one committed to a broad Keynesian strategy of increasing demand for the economy to address growing social unrest, which it was feared might become a breeding ground for fascism. This included a conscious policy of doing something to help increase wages, returning to the previous support for collective bargaining and rebuilding the institutions to achieve it. This administrative policy - no new legislation was passed - led to the creation or invigoration of 56 National Joint Industrial Councils and the impact by 1946 was so great that 86% of the workforce was covered by collective agreements or Wages Council Orders.

This support for collective bargaining remained state policy until 1979. It was reinforced by the impact of trade unions in the 1970s, a decade when levels of equality were at their greatest. The coverage of 86% was a key indicator of union strength. Keith then considered three reasons why this policy collapsed. Firstly, the union hubris of the 1960s and '70s, which preferred plant-level to national bargaining, as they thought this would serve their members better. Secondly, inward investment from the US, which saw companies bringing in their own industrial relations approaches to impose on the British mould. And finally, the ideals of Thatcherism, with which it was inconsistent.

He concluded that the reversal of this state policy was the major cause of the decline in union density since the 1980s. That had been a very high level of which we should be proud, boosting as it did social justice and a fairer society generally. Unions should therefore revisit these experiences to recover the ground lost as they need a collective bargaining strategy which learns from that history.

Sarah Veale began by paying tribute to the late Lord Bill Wedderburn, who had helped her a lot at the TUC and whose book The Worker and the Law was her inspiration. Its philosophy was that what workers would like from the law was 'to leave them alone' to negotiate their own collective terms. That was not to say that the answer was deregulation, but that the emphasis should be on building union strength in the workplace. Her experience told her that adding more individual legal rights would not solve workers' problems. Legal disputes got dealt with at Employment Tribunals, which took up disproportionate amounts of officers' time, and the remedies available were usually inadequate. She preferred what Wedderburn used to call, 'inderogability', whereby contracts of employment had improved terms implied into them as a result of collective bargaining with unions, terms which were usually better than statutory rights. The recognition law of the last Labour government had not really worked in any significant way, though the parallel right of individual workers to be accompanied by a trade union official had been useful. She noted that after all this time, the architecture of our labour law remained what Thatcher had put in place.

Moreover, she thought that most of the current government were even more ideologically against trade unions than the Thatcher governments had been. Despite the current weak position of unions, they seemed likely to be attacked further with proposals to introduce a 30% threshold in the turnout for ballots. They were also likely to find a relaxation of the current restriction on agency workers substituting for other agency workers in disputes. The latest Employment and Regulation Reform Bill could also be a vehicle for further attacks on health and safety regulations. The government was very ideologically committed to deregulation, despite there being little evidence that current regulations were a deterrent to employers in taking on staff. The Business, Innovation and Science Department survey of small business found this concern very low (6th) on most employers' list. Yet government policy was to increase to 2 years the service qualification for going to an Employment Tribunal in non-discrimination cases - it had yo-yo'd up and down for years without any clear causal link to most employers' attitudes in their recruitment policies. The recent introduction of high fees and deposits to deter applicants from going to tribunals, would be another example. Yet, with more and more Conservative right-wingers becoming government ministers, we could expect that even the more extreme ideas of the Beetcroft Report - how to make it easier to dismiss - would be taken increasingly seriously.

The government's administrative attack on facility time for union representatives in its role as public sector employer was a further example of this hostility. They knew how difficult it was for unions to operate with fewer reps, and that this was one of the causes of membership density falling. There was no longer any appreciation of the benefits for employers of having responsible union reps. A future Labour government must, in addition to promoting collective bargaining and restoring the Advisory Conciliation and Arbitration Service as a supportive agency, reverse such narrow-minded policies and recognise the work done for their colleagues by union representatives, the unsung heroes and heroines of industrial relations.

John Monks began by recalling how he had started at the TUC in 1969, an intellectually confident period for the unions. It was a time when the Donovan Report and those who influenced its recommendations from the Oxford University group of sociologists were shaping government thinking. They all wanted to keep the law out of industrial relations in favour of the traditional voluntarist system. Their focus also was how to avoid unofficial shop floor strikes, as this was where the collective bargaining power had gone viz. to the shop stewards. This was a shift encouraged by leading national union leaders such as the late Jack Jones.

Those strong and confident shop-steward- driven unions saw off two government attempts at reform and so unions came to be seen as dangerous and toxic. It was felt by the establishment that they had to be fought with 'no holds barred', if they were to be overcome. He recalled one minister in Thatcher's government coming to the TUC and asking where the 'trophy room' of government scalps was. He therefore agreed with Keith that by encouraging the shift to shop floor bargaining, union leaderships had contributed to the demise of the National Joint Industrial Councils' system. In fact, they had given them up. But this left the unions in a much weaker situation when that shop-floor power was destroyed in the early Thatcher years, through a combination of the recession in manufacturing, restrictive laws and hostile employers' policies. In the early 1970s, many used to patronise the Germans about their system of 'co-determination' and mildly restrictive laws, dismissing it as 'collaboration.' Now we envy them - and he recommended a recent TUC pamphlet on German lessons for today. In this way the TUC and the unions contributed to the decline in collective bargaining. We thought of ourselves as 'world leaders', 'tough guys', 'hard men' who 'didn't need provisions for industrial democracy, we've got the pre-entry closed shop'. And how we had paid for this hubristic mood!

So what were the lessons for the future? He agreed with Keith that we should have pressed Tony Blair's New Labour governments for a return to the old state-supported system of national collective bargaining, rather than settling for minimum wage regulation, union recognition or the 'Social Chapter'. But now the Labour Party leadership did not wish to go back to that and their whole outlook had changed: they wanted to be seen to be helpful to employers and business and not to be seen to be 'in hock' to their funders, the unions. Moreover, he was not sure that today's trade union leaders would want to 'reverse engines' in this way themselves, and he felt that there would be little enthusiasm at union or TUC conferences to move or support such motions. Instead he suggested firstly that we might have to look again at universal shop-floor works councils, on which unions could exercise the dominant influence. And secondly, that we ought to consider seeking some involvement in the administration of state welfare benefits again. When such joint administration had been offered in the past, eg Labour Exchanges in 1908 and 1944, most unions had turned the idea down. But in other EU countries - Scandinavia and Belgium - such involvement had been agreed, and with great success in terms of growing union membership.

But surveying the scene today, he was not optimistic that even such involvement would really be enough to bring about major improvements in the position of the trade unions in Britain. We had not forged sufficiently strong cooperative relations with enough employers. We were now without a Ministry of Labour. And there was no party supporting a return to collective bargaining as the preferred model, over individual contractual relations backed up by minimum legal rights. Training was the only area where all the parties favoured any sort of joint arrangements and that was poorly valued.

The fourth speaker, Dr Jim Moher, took a longer look back in history. This was to view the development of British state policy towards union rights and freedoms since their activities were first legalised as collective bargainers in 1824/5 with the repeal of the Combination Acts.

He argued that this policy of toleration and legality was a product of a general 'free trade' philosophy then in the ascendancy in those Parliaments, rather than fear of 'the threatening bearing of the proletariat' (viz. the local journeymen trade clubs of those days), as Marx thought. He also detected a more discerning approach by the rulers of that time towards trade combinations. Successive Home Secretaries after Peterloo, operated a policy which distinguished them from the more disaffected and rebellious groups like the Luddites in some of the declining handicraft industries. So, they resisted employers' calls to restore the Combination Acts in 1825 after a rash of strikes which greeted the original repeal Act a year earlier. They did confine lawful strikes strictly to disputes over wages and hours of work, and allowed the courts to penalise picketing or other 'intimidatory' activities during strikes. Most significantly, they reinstated the common law of criminal conspiracy. It was this (and the corresponding civil doctrine of 'restraint of trade' inhibiting collective action against individual contractual rights), which enabled judges ever since to intervene in disputes, usually on the side of the employers. Nevertheless, that still very restrictive legal framework was far better than the French or German Codes which banned and repressed unions altogether until the 1880s - French workers had to carry passbooks. For all its limitations, the British legal framework allowed the emerging craft unions to operate and grow.

This unique British state policy was tested over the next few decades by the emerging unions of skilled engineers, builders and boilermakers, which conducted vigorous organising and strike activities to achieve collective agreements in the advanced new capitalist industries. It held and was even strengthened in the 1870s after the first major inquiry on trade unions and the law was set up in 1867. This was after a particularly violent series of strikes in Sheffield amongst the cutlers. Yet after effective lobbying by the craft union leaders, the Minority report of that Erle Royal Commission laid the basis for the modern framework of union rights which were agreed by both the Liberal and the Tory governments of 1870s. This gave the trade unions full legal status and protection of their funds, along with immunity from prosecution during trade disputes. The outstanding TUC General Secretary of the twentieth century, Lord Walter Citrine, called this 'the Charter of British Trade Unionism'.

That settlement was eroded by judicial interpretation over the next 30 years, as unionisation spread to the semi-skilled and general workers - up from 250,000 to well over 1 million by 1900. Those massive disputes were characterised by aggressive tactics on both sides usually involving the police and the courts, and the parliamentary consensus frayed and almost broke a number of times. Alternative dispute resolution methods of conciliation and arbitration were tried, assisted by the new Labour Department of the Board of Trade (later the Ministry of Labour), but as these were voluntary, they did not have much effect. Then in 1901, the House of Lords 'drove a horse and cart' through the Trade Union Act 1871 and exposed union funds again to huge fines and damages arising from incidents during disputes. So, the whole question of the legitimacy of such collective bodies' actions during disputes was again severely challenged by one arm of the state. The unions fought back by funding their own political party, and their main effort was directed towards persuading the main parties of the day to restore their immunities from prosecution. This they achieved with a commitment from the Liberal Party leadership, which was fully honoured by their government in 1906, in the judiciary-proof Trade Disputes Act. This, and the equally important Trade Union Act of 1913, (which validated the union political levy and funding of the Labour Party, reversing another House of Lords challenge - the Osborne Judgement of 1909), restored and extended the Trade Union Charter of the 1870s, which lasted until the late 1970s.

Securing this uniquely British legal foundation of union 'rights' underpinned all other advances made by the unions throughout the twentieth century. By 1913 there were over 4 million union members and in the war which followed, agreements to boost production (no strikes, dilution and suspension of demarcation practices) reinforced union authority and autonomy. It withstood the strain of the General Strike and the legal restrictions which followed it in 1927. Following another period of cooperation during World War 2, the 1927 Act restrictions were swept away in 1946 by a Labour government, a move which all the parties again supported. This political convention, which went far deeper than simply a series of laws, was reflected in the unions being called 'an estate of the realm'.

He concluded by turning to the period when that consensus broke down and the state union-friendly policy was abandoned. By the late 1950s the old consensus had begun to fray as government economic policies demanded wage restraint from union leaderships. With bargaining increasingly devolved to local levels, a new shop floor assertiveness pulled them in the opposite direction. First, a Labour government was persuaded to regulate 'unofficial' industrial action (despite the advice of the Donovan Commission to reform the voluntarist tradition). But In Place of Strife drew such a strong reaction from the unions and from within the Parliamentary Labour Party and Cabinet, that the subsequent Industrial Relations Bill had to be dropped. In 1970, the Wilson government were surprisingly defeated with the issue of reforming union power becoming a major election issue as the powerful media focussed on it. The incoming Conservative (Heath) government immediately brought in a much tougher Industrial Relations Act of 1971, but that too was frustrated by a strong union campaign of civil disobedience and refusal to register. After a few more years of confrontation with the miners, dockers and power workers, that government also fell. A chastened Labour government now abandoned all attempts to impose incomes policies or to change the trade dispute laws. Instead it tried the official union leaders' offer of achieving wage restraint in return for employment and union legislative rights. This 'Social Contract' worked for a while as inflation came down, but as the wage-restraint dimension became uppermost at a rigidly low level, the union leaderships could not withstand the pressures from their shop floor activists. The Social Contract was blown away by large pay settlements of major disputes during 1978 and buried, along with the Labour government, after a wave of public sector low-paid workers 'winter of discontent'.

The sight of the unions being rewarded for bringing down the government, with a new tranche of rights through 'the Social Contract', finished any consensus. This brought Baroness Thatcher to prominence as Conservative leader in 1975 and to power in June 1979, committed to 'taming' the unions, with strong electoral support. This she effected over the following decade by a combination of recessionary monetarist policies and a step-by-step dismantling of the Trade Union Charter and collective bargaining through six major pieces of legislation. The return of Labour governments in 1997, this time committed to not repealing any of the anti-union laws, reflected the sea-change which had occurred in union fortunes both in their industrial heartlands and within the Labour Party. He felt, as a former official closely involved at national level, that they had themselves to blame for this. And he concluded that they must acknowledge those mistakes more openly, if they are to find a new consensus and more level-playing field than the current unfair one, within which to operate.


There followed a number of questions and contributions picking up some of the themes addressed by the four speakers. John Edmonds, from the chair, remarked that the call from both Keith and John for a return to collective bargaining via state institutions and co-determination had not been made in twenty years.

But another contributor questioned whether a new push for the restoration of collective bargaining was the right way back? He recalled the influence of Professor Kahn-Freund and Bill Wedderburn, which had favoured the negative liberty of the legal immunities over new statutory rights, but wondered why the unions clove to the immunities approach for so long. He felt that union structures were more the problem - the craft, general, etc inherited models which lent themselves so much to inter-union disputes. He felt the British unions were victims of their own successful history. This derived also from the desire of skilled workers to preserve their differentials and privileges, and he wondered if the new mega unions would eradicate those structural difficulties?

Then a UNISON member wondered whether a greater involvement in administering welfare services such as the defined benefit pension model, might not be one area unions could profit from?

Another contributor asked if the big obstacle was industrial or political? The history of the last 30 years suggested the latter. A GMB member saw the problem as one that the world in which unions operated had changed dramatically. He felt that the fragmentation of modern industry, presented great difficulties in organising in small units.

Another contributor asked whether unions should still be trying to repeal all the anti-union laws?

The chair invited all four speakers to respond briefly.

Jim Moher took up the last question and agreed that the campaign to repeal all the anti-union laws had been a barren exercise which none of the major parties (or indeed the TUC) felt had credibility any longer. Instead, he felt unions should focus on those aspects which were particularly unfair and one-sided, and build a new political consensus around changing those. He thought that a new Royal Commission was needed to explore and recommend such reforms.

John Monks felt that a positive right to strike was now needed, though how to define that would be a major issue, if we ever got to that discussion. He knew that the new TUC general secretary, Frances O'Grady, was interested in collective bargaining reform and that was important. He agreed with one speaker that a new culture was needed. Unions had done relatively well in most difficult circumstances and the task now was to rebuild that culture, perhaps focussing on youth issues.

Sarah Veale was doubtful about getting unions to go for some national collective bargaining pattern in statutory form. There might be other lateral ways to achieve the same result. She wondered whether it would be attractive to the Labour leadership? She also felt that the time had gone for unions to become involved with the state in running occupational pension schemes. She felt that the Information and Consultation EU Directive was an opportunity which should have been seized more by unions and, even though we might be too excited by Vince Cable's proposals for mutuals and worker share-ownership, that too might be something we should grasp and develop.

Keith Ewing stressed the urgency of the low coverage of collective bargaining issue. It was down to 32% and falling. He thought that the issue of legal rights or immunities were secondary questions. Instead, he felt the unions should seek to harness the power of the state by making it again willing to engage and support collective bargaining. He felt that it would do so in times of crisis, pointing to the two periods when unions were seen as part of the solution. It would require a change in the intellectual climate and a common understanding that there should be engagement on those issues. It had nothing to do with the law, more the economic policy of the day. The future of trade unionism depended on such policy changes by the state.

John Edmonds, in the chair concluded the meeting, thanking all the speakers for a stimulating evening. The debate had opened up some interesting questions of the kinds of adaptation which would be most efficacious in assisting union recovery. He thanked the People's History Museum in Manchester for their sponsorship of the event.

James Moher and Alastair Reid


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