BRITISH LIBRARY 
OF POLITICAL AND 
ECONOMIC SCIENCE 


LONDON SCHOOL OF 
ECONOMICS AND 
POLITICAL SCIENCE 


10, PORTVGALSTREET, 
LONDON WC2A 2HD 


Tel. 01-405 7686 



Fabian Tract 508 


Freedom At Work: Towards The 
Refonn of Tory Employment Laws 


Chapter 

1. Introduction I 
2. Three Mistaken Approaches 8 
3. The Case for Collective Freedom at Work 12 
4. Collective Freedom at Work some 
examples 14 
5. Freedom within Trade Unions 34 
6. Freedom at Work and Community Interests 42 
7. Summary and Conclusions 45 


16/z.l ~.£ 

' l NSS 


kO 

~o'S'O 

M\2... 

Lord McCarthy is a Fellow of Nuffield College and University Lecturer in 
Industrial Relations at Oxford. He was Research Director of the Royal 
Commission on Trade Unions and Employers' Associations and served as an 
adviser to successive Labour Governments. He has been involved in industrial 
mediation and arbitration since 1968 and has chaired a great number of 
inquiries into industrial disputes. Since 1979 he has been Opposition front 
bench spokesman on Employment. 

This pamphlet like all publications of the Fabian Society represents not the collective 
view of the Society but only the views of the individual who prepared it. The 
responsibility of the Society is limited to approving the publications it issues as worthy 
for consideration within the labour movement. 
November 1985 
ISBN 0 7163 0808 9 
ISSN 0307 7523 
Typeset by Character Typesetters (TU) 01-253 1766 
Printed by Blackrose Press (TU) 01-2513043 
Published by the Fabian Society, 11 Dartmouth Street, London SW1 H 9BN 


!.Introduction 


The Prime Minister is always telling the country that there is no 
alternative to her. Economic survival, she says, can only be based on her 
conviction that the activities of government must be further restricted. 
Industrial recovery, in her view, depends on allowing her Ministers to 
sell off even more of the public sector at knock down prices. Above all, 
there must be no halt to Thatcherite policies designed to remove all 
constraints on the operation of 'market forces'. 

Even within her own Cabinet this simple 
view of Britain's destiny has never gained 
unquestioned acceptance. Even within 
her own party there is a rising tide of 
objection to her combination of economic 
myopia and political inflexibility. In the 
country generally there are signs of a 
growing conviction that she has got it all 
wrong. 

Labour's alternative 

Labour has never accepted any of the 
fundamental assumptions ofThatcherism. 
In its most recent policy statement, A New 
Partnership: A New Britain , the Party has 
joined with the TUC to propose an 
alternative 'vision' based on public intervention, 
community responsibility and 
a more co-operative approach to Britain's 
long-standing and deep-seated problems. 
Labour argues that six years of Thatcher-
ism have produced few lasting benefits. 
What has occurred is record unemployment, 
reductions in the size of our manufacturing 
base, neglect of the infrastructure 
and severe damage to the welfare 
state. At the same time Britain has 
become a much more divided and unequal 
society. 

To help reverse these developments 

Labour suggests a number of "priorities 
for action". These include a "programme 
for public investment and repair". This 
should make possible a revival of manufacture, 
improvements to the infrastructure, 
and allow for essential repairs 
to the worst hit parts of the welfare state. 
It will also provide up to a million new 
jobs. To help foster co-operation and 
support for such a programme Labour 
proposes an annual 'Economic Summit' to 
inaugurate "a new process of discussion 
and consultation with all sections of 
industry". 

On closer inspection the programme 
includes many novel features -some 
derived from lessons learned under previous 
Labour Governments, some extracted 
from the achievements of like-
minded Governments in Scandinavia and 
Austria, some deduced from the evident 
failure of Thatcherite reliance on 'market 
forces'. But critics have rightly pointed 
out that there are important aspects of 
policy where the document provides little 
detailed guidance. 

Two answers can be made to criticisms 
of this kind. First, Mrs. Thatcher will 
probably hang on in Downing Street for 
another two years at least. There is surely 
ample time to amplify the more generalised 
and vague parts of the programme 
before an election manifesto is required. 


Second, much depends on what Mr. 
Kinnock finds when he gets to Downing 
Street. If, as is distinctly possible, there is 
a further decline in our relative competitiveness, 
or another burst of inflation , or 
the onset of another world recession , 
detailed plans will be in need of revision. 
Even major priorities may have to change. 

This pamphlet is written by one who 
supports the broad approach of A New 
Partnership: A New Britain and accepts 
the substance of both justifications for 
imprecision. It addresses itself to the 
limited but crucial question of what a 
future Labour Government should do 
about the present Government's industrial 
relations legislation ie the 1980 and 
1982 Employment Acts and the 1984 
Trade Union Act. But because workers 
are threatened with still more labour law, 
as the result of another Government 
Green Paper, it also refers to such matters 
as the Government's plans to cripple 
Wages Councils and their 1979 election 
pledge to curtail the right to strike' ih 
'essential services'. It also says something 
about the best way to encourage a more 
productive and co-operative relationship 
between trade unions and a future Labour 
Government. 

There are at least four reasons. for 
undertaking such a task at the present 
time . The first is that on this subject the 
new policy document is vague to the point 
of being delphic. All it says is: 

"... the next Labour Government will 
repeal the present Government's divisive 
trade union legislation and replace 
it with positive legislation ". 

The electorate will want to know more 
than this and in the next twelve months 
attempts must be made to provide the 
outline of an answer. To this end several 
important motions were passed by the 
1985 TUC. The most important committed 
the Congress, amongst other things: 

"To agree on a positive framework of 
law to extend collective bargaining and 

individual and collective rights at 
work". 

Another called for " A Bill of Rights for 
Working People" to include: 

".. . statutory support for unions to 
achieve recognition and representation 
rights and to foster the development of 
trade unionism". 

No doubt as a result of these and other 
motions, the Employment Policy and 
Organisation Committee of the General 
Council will prepare a detailed and comprehensive 
report for consideration by 
next year's Congress. But once one starts 
to consider the issues and options involved 
in any detail they are found to be both 
complicated and controversial. It is therefore 
essential that those who wish to argue 
convincingly against what is still one of the 
more popular aspects of Thatcherite dogma 
should be both clear and united about 
what they want to put in its place. It is 
submitted that this can only be achieved 
after an open and frank debate which is 
not confined to the TUC. 

Second, the record of the past suggests 
that unless an incoming Government has 
thought through the legal consequences of 
what it wants to do in advance it will be no 
match for the judiciary. Trade union 
history is littere.::J with hastily concocted 
legal formulae which have failed to withstand 
the first assault of the courts. But 
until the Party itself decides what it wants 
the process of legal drafting cannot begin. 

Third , there is a distinct danger of 
starting off in the wrong direction-or at 
least not beginning in the best possible 
way. For this reason the following section 
begins by analysing three mistaken 
approaches, before advancing a case for 
the writer's preferred starting point. 

Finally, and most important of all, I 
believe that Labour has failed to stress 
sufficiently the close relationship which 
exists between what has been done in this 
field and so many other aspects of Tory 
policy. In many ways the Thatcherite 

2 



approach to trade union law and the rights 
of employees at the place of work epitomises 
so much that has been wrong over 
the last six years. To provide an acceptable 
alternative to the PM's mixture of 
prejudice and ignorance in this area of 
policy involves an assault on the very 
centre of her social and economic doctrine. 
Labour should welcome this challenge, 
but it is essential to take time, in 
advance, to get its side of the argument 
right. 

Partly for this reason most of the rest of 
this section is concerned with two essential 
preliminary points: first, a brief statement 
of the writer's own attitude towards trade 
unionism and the realities of the labour 
market; second a summary of the aims and 
intended effects of Tory legislation. 

The case for trade unionism 

The reader is entitled to know something 
of the author's assumptions and prejudices 
in a didactic work of this sort. In 
any case, an alternative legal framework 
to that provided by the Tories must be 
rooted in a quite different view of the 
value and achievements of trade unionism 
in contemporary Britain. 

My approach is that of a life-long 
member of the Labour Party who is also a 
trade unionist. But it is also that of an 
academic who has spent most of the last 
twenty-five years trying to study management 
and trade unions in as objective a 
way as possible. In addition I am aware 
that my reactions to problems of industrial 
conflict have also been significantly influenced 
by involvement as a mediator and 
arbitrator of industrial disputes-which 
are often partly caused by the mistakes 
and omissions of government. This varied 
experience has resulted in both convictions 
and doubts which can be briefly 
summarised. 

First, I remain convinced that great 
value is to be attached to the maintenance 

and development of a free trade union 
movement able to respond to the wishes 
and demands of its members. I do not 
believe that the average worker can hope 
to bargain with an employer on anything 
like equal terms without the benefit of 
combination. It seems to me that the 
employment relationship remains essentially 
one of dependence, where the 
interests of the parties to the employment 
contract are not identical though they are 
not inevitably opposed in all respects. 
Genuine and deeply felt grievances are 
bound to arise between workers and those 
who manage or employ them. Collective 
bargaining remains the best means I know 
of channelling and structuring worker 
demands so that they can be considered 
and resolved without frequent and damaging 
resort to industrial action. In view of 
their essential role in the process of 
collective bargaining, union leaders have 
been rightly termed the " managers of 
discontent" by the American sociologist 

C. Wright Mills. 
Second, more positive arguments for 
free trade unionism can be deployed. It is 
only through their membership of unions 
that workers can hope to participate 
effectively in management decisions and 
give concrete expression to the age-old 
aspirations of industrial democracy. 
Through the right kind of procedures for 
consultation and negotiation they can 
contribute greatly to the quality of management 
decisions, and come to appreciate 
their necessary involvement in the 
aims and achievements of the enterprise 
that employs them. Thus I believe that 
trade unions can contribute to maintaining 
and improving industrial and organisational 
efficiency, but only if their essential 
role as the representatives of their members 
is fully understood and appreciated 
by management. 

Finally , and with increasing emphasis 
and urgency today, my conviction is that 
the legal status of trade unionism has 
become linked to the preservation of 
political democracy. Unless a Govern


3 


ment accepts that workers must be free to 
combine, and occasionally use the 
strength that comes from combination, 
the basis of political pluralism is undermined. 
As Colin Crouch has rightly 
argued, taken to its extremes the doctrine 
he terms neo-laisser fa ire, which lies 
behind so much of Government policy, is 
essentially authoritarian and centrist. As 
he puts it: 

" It assumes a strong, if democratically 
elected, central Government, powerful 
enough ro resisr secrionalist pressurefor 
more jobs or higher levels of publicexpenditure".' 

In this sense it aims to place such decisions 
"beyond the reach of democratic politics", 
so that they can be regulated by the 
so-called 'invisible hand' of the market. 

I also agree with Crouch when he says 
that the supporters of the doctrine of 
neo-laisser faire must, in the end, be 
willing to use the " most coercive and least 
democratically responsible organs of the 
state" -ie the police and the armed 
forces -to undermine the power of 
organised labour. For what they are 
determined to prevent at all costs is: 

"derailed government interference wirh 
the rights ofproperty owners, and ifthe 
cosr of doing this is considerable inrerference 
with other kinds of liberry, 
rh en so be ir". 

Of course many people believe that 
academics are better off without convictions 
of the kind I have summarised 
above. They are thought to interfere with 
objectivity and result in the suppression of 
evidence. I have never accepted this view. 
If it were to be admitted there would be 
few readable books to give students. The 
founding fathers of ocial science-from 
Plato to Keynes -would all need to be 
removed from the reading li st. 

In any case the existence of convictions 
and beliefs does not prevent the presence 
of doubt, or destroy the capacity for 

critical appraisal. Because one favours the 

existence of trade unionism one does not 

need to deny that like other well estab


lished and long-standing British institu


tions they can be bureaucratic, illiberal, 

incompetent and myopic; just like Parlia


ment , the armed services, the Treasury, 

the Bank of England, British business and 

the Hebdomadal Council of Oxford Uni


versity. 

It is certainly not necessary to pretend 
that the results of collective bargaining are 
universally beneficial , or that they have 
never contributed to the problem of cost 
induced inflation. It can be admitted that 
if Britain had a Government which took 
effective action to expand the economy 
and create additional jobs, it is possible 
that, before long, the rate of increase in 
pay settlements would rise. This could 
help to produce a situation in which rising 
prices affected Britain's ability to compete 
in world markets. It would make it more 
difficult for any Government to sustain 
'high-growth', 'high employment' policies. 
One can also grant that the primary 
aim of all industrial action by trade unions 
is to put pressure on recalcitrant employers, 
even if the result is inconvenience 
to the public. 

It merely does not follow from all this 
that an attempt should be made to 
legislate trade unions out of existence, 
rather than enlist their aid in dealing with 
common problems. It certainly cannot be 
demonstrated that if their influence could 
be destroyed in this way significant and 
immediate benefits would follow. For 
example, I know of no convincing empirical 
study which supports the view that 
trade union wage bargaining has been 
responsible for most of the major defects 
and weaknesses of the British economy-
many of which developed at a time when 
union power was far weaker than at any 
period since the end of the war. I can cite a 
great deal of evidence to suggest that 
defective marketing, poor design, inadequate 
financial institutions and an 
absence of the right kind of government 

4 


assistance have been of far greater 
importance.' 

I also believe that the record suggests 
that trade unions -and trade union 
leaders-can co-operate effectively in the 
achievement of worthwhile government 
objectives if they are actually listened to 
and taken into account. The problem has 
been that in the past even Labour Governments 
have become hard of hearing in the 
end. 

Dogma and prejudice 

Unfortunately, since 1979, we have had 
Ministers who do not even pretend to 
listen -except to those who reflect and 
pander to their prejudices. Moreover, 
even in the groves of academe, Jet alone 
the media, it has proved increasingly 
difficult to discuss the complex of social, 
economic and institutional variables 
which actually govern the labour market 
and circumscribe the behaviour and influence 
of trade unions in the real world. The 
public debate has been captured and 
dominated by the more dogmatic and 
unreasoning supporters of Thatcherite 
doctrine. 

Curiously enough, specialists in my 
subject have not known how to deal with 
this invasion of their territory-except to 
complain that it is all very complicated and 
hand round a book list. But the new 
entrants to the debate have shown no sign 
of wanting to read our books. They have 
remained unreservedly committed to a 
view of the relationship between wages, 
employment and union power to which no 
decent labour market text book would 
give any credence. 

Their position is, of course, most simply 
stated in what are now the astonishingly 
influential writings of the Prime Minister's 
favourite guru -Professor F.A. van 
Hayek. He has long argued that it is only 
trade union constraint on wages, as a 
result of the process of collective bargain


ing, which prevents the cost of labour 
from falling to a point where more or less 
full employment will again be possible in 
Britain. He has also pioneered the view 
that union power, in some sense which he 
has never defined, belongs to national 
trade union leaders, and is rooted in their 
ability to exploit legal 'immunities' which 
have existed with some interruptions and 
modifications ever since 1906.' 

Moreover, since 1979 disciples of Professor 
van Hayek have developed his 
ideas to a point where they have become a 
fashionable and precise orthodoxy. Thus 
his most quoted disciple, Professor Patrick 
Minford, has actually sought to 
calculate how far Britain's economic decline 
into mass unemployment can be 
blamed on trade unions. His verdict is that 
since the proportion of workers in unions 
rose by 13 per cent from 1963 to 1979, this 
must be the main reason why 'total real 
wages' rose by the same amount and led to 
an 8.5 per cent reduction in output and the 
destruction of a million jobs since 1963.' 
(How it has come about since 1979 union 
density has been falling while unemployment 
has risen by more than two and a half 
million has not been explained.) 

Yet because the Prime Minister and 
leading members of her Government have 
come to believe assertions of this kind, the 
contribution which trade unionism can 
make to the defence of worker interests 
and the management of the economy has 
been ignored or derided by Government 
spokesmen. At the same time Britain has 
had a succession of Jaws which have 
severely restricted the legal right to combine. 


It is my conviction that the Conservative 
Party first embarked on its 'step by 
step' attack on trade union rights because 
it was thought to be electorally popular-
and in the aftermath of the 1979 'Winter of 
Discontent' this was undoubtedly the 
case. But I am equally persuaded that the 
Prime Minister and her closest colleagues 
have continued to travel this route because 
of their growing addiction to van 

5 


Hayek 'free market' principles in general. 
With the collapse of 'Friedmanite' policies 
for controlling the economy by manipulating 
the mysterious and slippery M3, there 
must have seemed to be, in Mrs. Thatcher's 
favourite phrase, "no real alternative". 


Thus in their attempts to assist the 
fumbled gropings of the 'hidden hand ', 
Government has been led to abandon its 
responsibilities for managing the economy 
and protecting the public over an ever 
wider field. Controls on capital and foreign 
exchange have been abandoned. Hire 
purchase rates and bank lending have 
been 'set free'. Regulations governing air 
services and the licensing of lorries and 
long distance coaches have been relaxed. 
Planning requirements have been eased, 
or abolished. Free-ports and enterprise 
zones have been set up as tax havens. 
Development taxes, stamp duties and 
investment surcharges have all been repealed. 
All, or part, of half a dozen 
national assets have been sold off to 
speculators at rock bottom prices-eight 
more are to be privatised before the next 
election. 'Contracting out' has been 
forced on the NHS and local authorities-
even where they could show that the result 
was higher costs and lower services. Given 
such a climate of ideological dogma, there 
was no hope of a let up in the stream of 
anti-union legislation designed to 'improve 
the working of the labour market'. 

Nevertheless, it is important to note just 
how far the Government has already 
travelled. The details of what has been 
done, and the consequences for working 
people, are elaborated in subsequent 
sections. However, it is necessary to begin 
with a brief summary of what was intended 
and achieved. 

seriously narrowed the ambit of lawful 
strike action -most effectively by providing 
a much more limited definition of what 
is to count as a trade dispute. Second, they 
have added very significantly to the financial 
cost of straying beyond those narrow 
limits -above all by removing the 
immunity for actions in tort within the 
context of a trade dispute. The result is 
that it is now much more likely that 
employers, or injured third parties, will 
take unions and their members to court-
especially since it now seems that interim 
injunctions imposing restraints backed by 
quasi-criminal penalties are readily available 
from the courts. 

Third, the new labour laws have fastened 
on trade unicns a whole series of 
legal tests and standards more stringent 
than those which exist in any other 
democratic country. In my opinion no 
organisation dependent on voluntary help 
could hope to comply with all of these 
regulations -for example, the totally 
impractical requirements of the 1984 Act 
for an up-to-date and accurate central 
register of union members. The effect 
could well be that over the next few years a 
rash of contested elections and union 
decisions will be challenged in the courts, 
many of which will undoubtedly be sponsored 
by disaffected and hostile right-wing 
groups. 

Fourth, the Government has removed 
most of the props and aids to union 
organisation which have been traditionally 
designed to help workers organise in 
areas where the employer is unusually 
powerful -most recently through the 
abolition of the 'Fair Wages' resolution 
and the forthcoming attack on Wages 
Councils. 

Scope and limitations

The legal assauH on trade 
unionism 

It should be clear by now that this 

pamphlet is addressed to those who have 
First, the Acts of 1980, 1982 and 1984 have remained unimpressed by Thatcherite 

6 


attempts to raise their naive version of 
neo-classical economic dogma to the status 
of a religious principle. It is intended 
for those who still feel that in the labour 
market, as elsewhere, one must try to 
formulate policy on the reasonable 
assumption that the advantages of price 
competition, or the abandonment of all 
forms of collective regulation, should be 
matters for empirical inquiry, rather than 
blind faith. 

From this point on these assumptions 
are more or less taken for granted. What 
the pamphlet seeks to provide, in some 
detail in some cases, are the main factors 
to be taken into account if the present 
labour laws are to be refashioned on the 
basis ofsuch assumptions. This means that 
I must usually begin with a briefaccount of 
what the present Government has done in 
a particular field and its likely consequences. 


It should also be stressed that what is 
advanced is in no way comprehensive. 
Very little is said about the working of 
Industrial Tribunals since 1971 
although there is a considerable body of 
evidence to suggest that they are in need 
of modification. The way in which protection 
against unfair dismissal , or discrimination 
, needs to be improved, is not 
discussed in any detail. Several large 
questions, such as the case for a more 
extended use ofTripartite Courts, are not 
touched on at all. Others, such as the 
future boundaries of lawful secondary 
action, are not considered in specific 
terms. The very important issue of the role 
of the police in industrial disputes and 
demonstrations is only dealt with tangentially 
via a review of picketing law. The 
excuse is partly length, but also the fact 
that one naturally tends to focus on areas 
where one thinks one has some idea of 
what should be done. 

It should also be appreciated that what 
follows is very much a personal view, 
which must not be taken commit anybody 

but its author. I doubt if every proposal 
would find favour with all active trade 
unionists, or their leaders. On the other 
hand , I have reason to believe that much 
of what I suggest would not be challenged 
by quite a number of employers especially 
those with some day to day 
experience of industrial relations. It 
should also be all too evident that this 
pamphlet was not written by a lawyer. 
Fortunately it has been read by one, but 
he is in no way responsible for any errors, 
infelicities or mistakes that remain.' 

I also hope that it wi ll be appreciated 
that the proposals below are not advanced 
in any dogmatic spirit. They are there to 
assist debate, in the hope that they will 
stimulate thought. 

The rest of the pamphlet is divided into 
seven chapters. In chapter two, I consider 
three frequently canvassed ways of replacing 
the present legislation. I regard each of 
these as a non-starter, but it is important 
to say why. In chapter three I advance my 
own approach. This focusses on the case 
for effective freedom at work. It suggests 
that Labour should concentrate on creating 
worker rights, rather than the return of 
trade union 'immunities'. Chapter four 
contains four illustrations of how to apply 
the preferred approach to important areas 
of the law-ie the use of industrial action, 
the closed shop, the right to picket and 
union recognition. Each of these involve 
the establishment of rights which are 
mainly exercised against the employer. In 
chapter five the pamphlet considers that 
area of the law which estalishes rights for 
union members vis a vis their union. In 
chapter six, a number of wider questions 
are considered briefly-notably how best 
to ensure that the restoration of effective 
freedom at work by a Labour Government 
remains compatible with the interests 
of the community as a whole. 
Chapter seven contains a summary of the 
argument and lists my positive proposals 
for a new legal framework. 

7 


2. Three Mistaken Approaches 
The first approach which I regard as a non-starter maintains that all 
Labour needs to do is to repeal everything the Tories have done since 
1979 and restore the position as it was when Labour left office. There are 
at least two things wrong with this proposal. 

First, and with the undoubted benefit of 
hindsight, it is clear that the Acts of 
1974-1978 were le s than perfect. One 
area where this was undoubtedly so 
concerns the ease with which judges have 
continued to grant injunctions against 
trade unions. Another relates to the whole 
question of trade union recognition, 
where employers like Grunwick were able 
to ignore the intended effects of the 
legislation. Then there were a number of 
complicated legal issues that were never 
solved by the Labour Government -such 
as the lack of an acceptable definition for 
'peaceful picketing' or the proper role of 
the police in industrial disputes. Another 
problem related to the enforcement of 
union membership agreements (UMAs) 
-especially after the three railwaymen, 
who were dismissed on grounds of non-
unionism, won their case before the 
European Court of Human Rights. 

In other words, as we shall see when we 
come to consider what needs to be done in 
all these areas, it will not be enough 
merely to restore the provisions of the 
1974, 1975 and 1976 legislation. They 
need to be improved upon in the light of 
experience. 

Recent developments 

But it is not only that Labour could not 
hope to get everything right last time. 
Times and attitude have changed . T here 

have been a number of important developments, 
both in the law and in 
industrial relations. Some of these have 
concerned a number of well-publicised 
disputes and the way they have been 
reported in the media. Others have arisen 
from inter-union relations and the processes 
of union government. 

Much of the Tory legislation-notably 
Parts 1 and 2 of the Act of 1984 -were 
presented to the public as an attempt to 
deal with such developments, albeit in a 
partisan way. Without suggesting that 
they were either justified or practical, it 
seems clear to me that the electorate will 
expect more from Labour than a simple 
pledge to repeal them. Indeed, I doubt if 
this will be a practical option by the time of 
the next election-if only because some 
have already begun to make an impact on 
union behaviour and government. 

One area where this is undoubtedly the 
case concerns the election of union executives. 
Another is the procedures used to 
authorise industrial action. In any case the 
common law has long exercised a significant 
jurisdiction over many aspects of 
internal union affiar -although it 
intervention has not always been constructive 
or helpful. Labour will certainly 
need to advance its own proposals in areas 
of this kind, and these will need to be 
capable of gaining general support. 

Finally, in recent years, British membership 
of the EEC has meant that a 
number of directives and draft directives 
have been di cussed within the Commun


8 


ity which have a direct bearing on employee 
rights at work. The present Government 
has tended to oppose , and even 
veto proposals of this kind, whenever it 
could be argued that they interfered with 
the operation of a 'free market'. Labour 
will hardly wish to echo this approach and 
therefore it needs to make up its own mind 
about such initiative 

Priorities 

The second mistaken approach is to 
assume that if simple repeal and replacement 
is not the answer, then we must grind 
slowly through all sections of Tory legislation 
in an effort to produce an all-
embracing draft bill in time for the next 
election. This would take far too long; the 
electorate wants to know. at least in broad 
terms, what Labour will do in the near 
future. A more complex objection is that 
Labour needs to decide its priorities. In 
effect we require our own 'step by step· 
approach. 

To take two examples. It is essential 
that on entry into office we should know 
exactly what we want to do about labour 
injunctions eg applications to a court for 
orders to 'restrain' unions who are contemplating 
or involved in industrial action 
of some kind. In 1974 Labour provided 
that the courts should not grant such 
injunctions where unions, or their members, 
were "likely" to be able to sustain a 
"trade dispute defence". 

Given the incursions which the Tories 
have made into the scope of the trade 
dispute defence -eg where disputes 
involve off-site pickets or sympathetic 
action-this provides very limited protection 
today. But there is a further problem. 
Experience suggests that even if the 
1974-6 definition of a trade dispute were 
restored, or even extended, it might not 
prevent judges from granting injunctions 
against unions where the plaintiff could 
show that there was 'a serious issue to be 
tried' and that the balance of convenience 

favoured the preservation of the status 
quo. 

On this basis employers and third 
parties have recently obtained injunctions 
to protect them from the threat of any 
trading loss once a dispute begins. The 
effect on union solidarity and morale of 
imposing what becomes an indefinite ban 
on all forms of collective action, backed by 
the ultimate threat of quasi-criminal 
sanctions in the form of an action for 
contempt, has not really been considered 
by the judges. 

Many ways out of the problem have 
been proposed. First, it could be made 

. more difficult for employers and others to 
obtain ex parte injunctions ie those 
granted in the absence of union representatives 
on grounds of urgency. Second, 
a statute could specify that all evidence 
submitted by the plaintiff should be 
subject to cross examination. More significantly, 
perhaps, the plaintiff might be 
required to provide stronger evidence that 
the trade dispute defence was likely to fail 
if the case went to trial. Most important of 
all, in my opinion, action could be taken to 
alter the 'balance of convenience' test, so 
that judges were less likely to assume that 
an indefinite postponement of all forms of 
industrial action was invariably in the 
interests of both sides. 

This is a tricky but technical problem, 
which i not inherently controversial so far 
as the labour movement is concerned. The 
crucial need is to have a number of 
complementary proposals ready for immediate 
enactment; a paragraph or so 
which friendly experts feel should do the 
job. Ifthey should turn out to be less than 
watertight then Labour must be ready 
with further amendments. 

The position is much more complex and 
debatable in the area of trade union 
recognition. This issue poses much more 
than technical problems. Here, in 1975, 
Labour followed the proposals of the 1968 
Royal Commission on Trade Unions and 
Employers' Associations. As has been 
noted they had little effect and ACAS 

9 


calculated that in four years a mere 15,000 
trade unionists obtained recognition as a 
result. Yet there were many disputes 
within the trade union movement over 
who had the right to demand recognition 
under the new legislation. By the time the 
legislation was repealed most unions took 
the view that it was little or no use to them. 
Since then many union officials have come 
to believe that the law cannot provide 
effective help against anti-trade union 
employers while its very existence may 
discourage employers in general from 
coming to terms with trade unions in their 
firms. 

I think this judgement is both premature 
and potentially disastrous. On the 
other hand, I readily accept that if there is 
to be legislation to encourage representation 
and recognition it wi ll need to be 
thought out with much more care than last 
time. In chapter four I advance my own 
ideas on the subject, but I would not 
expect everything I suggest to be embodied 
as it stands in instant legislation. 
Some of my proposals would take time to 
put into effect, others might need to be 
modified in the light of experience. Meanwhile 
Labour should think about the 
options available and their likely consequences. 
Until then it does not need to say 
much more than that it is determined to 
try to improve on its previous record. 

Rights and immunities 

So I come to the third and fina l nonstarter. 
It is the assertion that all we need 
to do is recast our traditional system of 
'negative immunities' into what is referred 
to as 'the language of positive rights'. This 
is really no more than the wrong way to 
begin or rather the wrong approach to 
regard as the key to all problems. 

Of course there is something in this 
approach. The Government continues to 
make play of the fact that for largely 
historical reasons the position of British 

unions in law, and the right of their 
members to engage in industrial action , 
has been defined in negative terms ie as a 
series of 'immunities' from common law 
liability, such as inducing a breach of 
contract, or combining 'in restraint of 
trade'. The fact that these freedoms have 
been defined as 'immunities' has enabled 
those who have known better, plus those 
who have merely been ignorant, to suggest 
that trade unions in Britain have been 
placed 'above and beyond the law'. It has 
been asserted that for most of the period 
since the passage of the Trades Disputes 
Act in 1906, unions and their members 
have enjoyed 'unique' privileges and a 
degree of 'protection' denied to ordinary 
citizens. 

Consequently it has been plausible to 
present the legislation of the 1980s as 
nothing more sinister than a partial redressing 
of the balance -a modest and 
over-due attempt to bring trade union 
barons and their acolytes within the 'rule 
of law'. T he fact that the result has been 
the most restrictive labour code in Western 
Europe, which in certain respects 
involves an invasion of union autonomy 
without precedent in western democracies, 
has been largely ignored. 

A way must be found to break through 
this systematic misrepresentation. After 
all, those of us who have tried to combat 
the misrepresentation so far have gone out 
of our way to emphasise that what Britain 
terms a common law immunity is usually a 
positive statutory right in other countries 
-often embodied in a written constitution 
which it is difficult to reduce or 
withdraw. Thus other EEC countries have 
a 'right to strike' and a 'right to representation' 
-often in a more extended 
form than that which now exists in 
Thatcherite Britain. And of course the 
existence of rights of this kind involves a 
circumscription of the legal claims of other 
groups -such as employers and injured 
third parties. They are not able to sue 
unions, or their officials, on the mere 
grounds that their 'interests' have been 

10 


damaged by the exercise of such rights. 
Otherwise action by the unions and members 
could not be said to be legal in the 
first place. 

Once this point is taken it becomes 
possible to compare the rights accorded to 
unions and their members in different 
countries-although this is still far from 
an easy task. It becomes reasonable to 
suggest that even before 1979 the comparative 
position in Britain was not universally 
favourable to workers or their organisations 
eg in respect of the right to 
withdraw labour without risk of breach of 
contract. 

It seems reasonable to go on and argue 
that next time Labour should present its 
proposed alternative framework in similarly 
positive terms , avoiding the negative 
language of immunities and stressing the 
parallels with what exists elsewhere. 
There is clearly something to be said for 
this view, so long as it realised what is 
being suggested is largely presentational, 
advocated in the hope that it will avoid or 
counter a form of criticism that is unfair 
and calculated to mislead . But it is 
essential to hang on to the point that by 
speaking the language of rights we do not 
actually solve any of the major problems. 

On the contrary, as Lord Wedderburn 
has rightly argued in his contribution to 
the debate , whatever language one uses , 
the propositions that result still require 
definition. Moreover, as he says, 

"such definition of basic concepts of 
labour law constitute 'limiting factors' 
determining the scope of rights available 
to employers, workers and trade 
unions".' 

In other words, changing the form of the 
words used does not , in itself, force judges 
to be more judicious and balanced in their 
consideration of worker interests when 
asked to grant injunctions. It will not 
necessarily prevent management from 

sacking shop stewards. It is unlikely to 
make a significant contribution to the 
complex problem of safeguarding both 
public order and the right peacefully to 
persuade on a picket line. Above all , it will 
not tell us where we should draw the line 
between the conflicting claims and interests 
of workers , employers and injured 
third parties. It will not help us to decide 
what Labour should do about such topics 
as the closed shop, union elections or 
strike ballots. 

It has even been suggested , by some 
labour lawyers, that it may make these 
problems more difficult to solve. For if we 
rewrite the whole of British labour law 
using the language of rights, rather than 
immunities, it could be less easy to 
prescribe with the required degree of 
exactness what is intended by Parliament. 
It might be more difficult to anticipate , in 
advance, how judges will react to laws 
couched in what they will regard as 'novel' 
ie. 'unusual' forms. (Indeed some say they 
are likely to interpret them even more 
restrictively, whenever they see the 
chance.) Certainly, as Wedderburn also 
points out, those bits of past labour law 
which have been defined in terms of 
'rights' rather than 'immunities', have not 
remained immune from the process of 
judical review. (For example, the 'positive 
right' to picket as embodied in the 1906 
and 1974 legislation.) 

All this is not to say that Labour should 
avoid referring to its proposals in terms of 
rights; as I have said, in presentational 
terms there are good reasons for doing so. 
All I am claiming at the moment is that 
this should not be taken to the point where 
it prejudges and predetermines the ultimate 
language to be used in a future 
statute. It also must be fully realised that 
very little is solved by substituting one 
language for another. Meanwhile I still 
have to advance my own preferred 
approach to these problems. 

11 


3. The Case for Collective 
Freedom at Work 
I would like to see Labour focus on the case for establishing effective 
freedom at work, stressing the extent to which this is dependent upon a 
legal framework of individual rights which make collective action 
possible. Of course freedom is a word which is almost never off the lips of 
Tory politicians nowadays. The Prime Minister cannot get through a 
single Parliamentary Question Time without posing as a freedom fighter 
at least twice. But when she uses the term it has nothing whatever to do 
with the freedom of workers to act in concert. It is usually part of a case 
for more privatisation, or reductions in the scope and cost of the social 
services. Insofar as an extension of liberty is involved what is said to be 
needed is a reduction in the 'burdens' of businessmen-especially those 
of less than average size. (A fondness for diminutive businessmen has 
become an essential element in Thatcherite ideology.) 

Thatcherite freedom 

No concern is shown for the day to day 
problems of the average employee except 
when it is alleged that the employment 
protection laws, which the Government 
inherited , are threatening jobs by 
limiting the 'freedom' of businessmen to 
respond to 'market forces'. Of course with 
this objective in mind, freedom has been 
invoked to narrow the definition of what is 
to count as an unfair dismissal. The period 
over which employers are free to dismiss 
unfairly has also been extended. All forms 
of employment protection have been 
removed from those unfortunate enough 
to work for sufficiently small businessmen. 
At the same time the Government 
has refused to support action within the 
EEC to provide a right to parental leave, 
or protection for part-time workers. 
Meanwhile EEC directives on equal pay 

for work of equal value have been emasGulated 
. 

As is well known all the evidence we 
have -for the most part derived from 
surveys sponsored by the Government 
itself -does not support the view that 
employment protection legislation in Britain 
has affected the ability of employers 
of all sizes to compete-either at home or 
abroad. It suggests, on the contrary, that 
businessmen have been much more concerned 
about repeated changes in Government 
taxation policy, or high interest 
rates, or the reluctance of British banks to 
provide long term risk capital. Since the 
Government came to office these have 
been the real restrictions on output and 
employment growth. 

As a result it should be easy for a 
Labour Government to pledge action 
designed to restore and extend individual 
employment protection law, so far as it 

12 


affects areas such as unfair dismissal and 
race and sex discrimination. There seems 
to be no good reason why British standards 
in so many respects should lag 
behind those that have existed in most 
European countries or, in the case of sex 
and race discrimination , the USA and 
Canada. 

Collective bargaining 

What is not so widely understood, even on 
the left , is the connection between individual 
employment rights and collective 
trade union immunities. Yet trade unions 
were founded and developed because 
workers wished to exercise some rights at 
work collectively. Most importantly, they 
wished to be free to act in concert to 
attempt to influence their pay and conditions; 
to substitute collective bargaining 
for individual bargaining. It is worth 
exploring briefly why this should be so. 

The individual worker who lacks the 
right to combine must either accept the 
terms dictated by the employer or leave 
the job -in effect he withdraws his 
labour, but does so as an individual. Since 
there are many more employees, and 
would-be employees, than there are employers, 
and since the employer has more 
resources at his disposal , the strongest 
party in any bargain to be struck on these 
terms is bound to be the employer. This 
fact is sometimes referred to as the 
'natural' power of the employer in an 
unorganised labour market. It is the 
reason why employment is termed a 
'dependent' or 'subordinate' relationship. 
The subordinate nature of the employment 
relationship justifies the existence of 
individual employment rights against the 
employer -eg the right to complain of 
unfair dismissal. But it also lies behind the 
granting of a legal right to combine. 

Suppose the individual worker has a 
legal right to combine. He or she joins a 
trade union and seeks to negotiate on a 

collective basis with the employer. Any 
disagreement over terms and conditions 
can now be expressed collectively, so long 
as a group of employees, or would-be 
employees, can agree on their common 
demands. There are still more employers 
than employees, and the natural power of 
the employer in the labour market is 
therefore not destroyed. But there is a 
significant difference. By acting in concert, 
and selecting a representative to put 
their point of view, employees have some 
chance of 'matching' the natural power of 
the employer. If they still cannot reach 
agreement they may also decide to withdraw 
their labour-but this time they do 
so collectively. Faced with a collective 
refusal to work the employer is more 
likely to modify his demands and the 
workers concerned have more chance of 
obtaining a settlement that is in their 
interests as well as those of their employer. 


But once demands for the right to 
bargain collectively emerge, society must 
decide how far workers should be encouraged 
or permitted to act in this way . For 
example, should they be allowed to form 
permanent organisations with funds and 
leaders who are responsible to . them? 
Should they be free to decide the terms on 
which they will agree to withdraw labour 
collectively-even if employers and third 
parties complain that the results damage 
their interests or inconvenience the public? 
Or should the state seek to prescribe 
the way in which unions are organised and 
make use of the right to withdraw labour 
collectively? Should there be a series of 
legal penalties and liabilities that circumscribe 
and limit collective freedom at 
work? 

There are other issues to be resolved as 
well. Suppose employers refuse to meet 
union leaders and bargain with them 
collectively? Suppose they combine to 
undermine and resist the right to collective 
bargaining? Should the law intervene 
to limit their freedom to act against unions 
and their members: thus extending the 

13 


individual's right to collective freedom in 
a much more positive way? 

The link between the individual's rights 
at work and the legal position of trade 
unions should now be clear enough. It is 
not possible to provide collective rights for 
individuals without legalising trade unions 
and affording them some degree of protection 
and immunity. Trade union rights 
are needed to make collective rights 
effective for individuals. They are not 
'privileges' extracted from a reluctant or 
acquiescent state; they flow from society's 
prior decision to grant the right to combine 
to employees. If they did not exist it 
would either be necessary to legislate on a 
wide front to protect employees from the 
consequences of an abuse of employer 
power -or the labour market would 
remain in its 'natural' state with the 
balance of power slanted towards employers 
as a whole. 

Given the Thatcher Government's 
obsessional need to remove all restrictions 
on the operation of a 'free market', they 
can no longer be relied upon to accept the 
validity of arguments of this kind. Without 

openly denying the need for combination 
in any form , the hard liners in the 
Government are more and more inclined 
to blame the mere existence oftrade union 
combination and the process of collective 
bargaining for a whole series of longstanding 
defects in the British economy 
and British public life. Certainly, members 
of the Cabinet, most notably the 
Prime Minister and her Chancellor of the 
Exchequer, assert almost daily that a 
further reduction in union influence is 
essential if their plans for a market based 
recovery are to have any chance of 
success. 

What Labour needs to emphasise is that 
in the name of this mythology laws 
intended to increase union liability have 
already been taken to the point where the 
individual's freedom to combine has been 
significantly affected. The need to reestablish 
collective freedom at work, in 
the name of the workers themselves, 
should form the cornerstone of Labour's 
approach to the reform of the present 
labour laws. 

4. Collective Freedom at Work-
some examples 
A. Freedom to withdraw 
labour 
The most obvious area where recent changes in the law have had an 
impact on collective freedom at work concerns the so called 'right to 
strike'. This is a complex subject and to explain what has happened one 

14 


must begin with the consequences of the notorious Taff Vale judgement 
of 1901. In that case the House of Lords ruled that unions were liable for 


damages caused by their agents who were found to have organised or 
'induced' a breach of employment contracts. Since breach of contract is 
actionable by the party to the contract who suffers the breach, the unions 
concerned were said to have brought about an unlawful act ie a civil 
wrong or 'tort'. They were also made subject to interlocutory or interim 
injunctions intended to restrain them from committing such torts. 
Refusal to obey could lead to an action for quasi-criminal contempt. 

Legal background 

Following Taff Yale many unions faced 
actions for damages. It proved extremely 
difficult to organise or sanction industrial 
action without incurring some form of 
contractual liability. The Act of 1906 
sought to deal with this problem by 
protecting inducement within the context 
of a 'trade dispute'. In effect it granted 
tortious immunity to the agents of workers 
and employers engaged in a dispute over 
terms and conditions of work. From the 
viewpoint of unions and their officials this 
meant that they were no longer liable, 
even where their members withdrew their 
labour collectively in ways that involved a 
breach of employment contracts. At this 
time this appeared to be all that was 
required to re-establish the right to strike. 

What was left unsettled, amongst other 
things, was the circumstances in which the 
original breach arose. What the Act failed 
to specify was how the individual worker, 
who wished to withdraw his labour in 
concert with others, went about avoiding 
damage to his own contract. This was left 
to the decisions of the judges. 

Fortunately, or unfortunately, there 
turned out to be almost no case for the 
judges to decide for some time after 1906. 
Since unions and their officials were 
thought to be immune from all forms of 
contract liability, few employers considered 
it worth establishing whether or not 
their own workers had struck in breach of 
contract. In this vacuum there grew up a 

doctrine most clearly expressed by Professor 
Otto Kahn-Freund in his seminal 
account of British labour law, as it was 
understood at the time, published in 1954. 
Kahn-Freund's view was that the issue of 
legality, from the viewpoint of the individual 
worker, turned on the adequacy or 
otherwise of the period of notice given by 
the worker to the employer. As he put it: 

"... If, in a particular trade, there is a 
custom to the effect that employers and 
workers can terminate their contracts 
without notice, a lock-out or strike 
cannot be illegal by reason of it being a 
breach of contract. But if there is 
usually a term of notice of, say, a 
fortnight, the workers are liable to 
damages if they quit without giving this 
notice". ' 

Whether notice could be given on the 
workers' behalf, say by their union officials 
at national level, Kahn-Freund did 
not consider. Insofar as trade union 
officials thought about the problem, they 
tended to assume that this was the case. 

Unfortunately, as Wedderburn argued 
in The Worker and the Law in 1965, it now 
appears that Kahn-Freund was wrong• 
Successive cases have established that 
even if notice equal to the period specified 
in the contract is given personally, by each 
individual striker, most forms of industrial 
action inevitably involve the workers 
concerned in a breach of contract. It is 
difficult to underestimate the significance 
of this development, from the viewpoint 

IS 


of both workers and trade unions. But it is 
essential to understand what has happened 
if Labour is to provide a more 
equitable and balanced legal framework 
which restores the right to strike. 

First, it means that there is no freedom 
to withdraw labour in Britain, in the sense 
that in most cases the workers involved 
have laid themselves open to an action for 
breach of contract. They. have also committed 
an unlawful act, and if the result 
produces damage to the employer, they 
may be liable to a civil action claiming 
compensation. 

More importantly, perhaps, the very act 
of striking almost certainly absolves the 
employer from any obligations he may 
have under the worker's existing contract 
of employment. In effect the worker can 
be dismissed , instantly, without compensation 
or money in lieu of notice. 
Moreover, what the employer has done is 
in no sense 'unfair' in law -it does not 
give rise to compensation of grounds of 
unfair dismissal. 

But the circumscription of collective 
freedom at work has not stopped at this 
point. Obviously since virtually all strikes 
are now known to give rise to illegality, it 
becomes more important than ever that 
the protections first established in 1906, as 
subsequently qualified and clarified in 
1974-6, should continue to operate. In 
fact , the reverse has been the case especially 
since 1980. 

Liabilities 

To begin with the courts have developed 
an additional liability where strike action 
may be said to involve breach of 'commercial 
contracts' -a possibility not considered 
in 1906. 

Second, under the provisions of the 
1980 Employment Act it has become 
actionable for workers or trade union 
officials to be present or involved in 'off-
site' picketing, or to participate in or 
organise a wide range of 'secondary 

action'. Attempts to enforce union membership 
agreements have also been made 
actionable in a variety of ways. 

Third, as a result of the 1982 Act the 
definition of what is to count as a trade 
dispute has been significantly narrowed-
so that it does not cover anything other 
than a dispute over the worker's own 
terms and conditions limited to his own 
place of work. 

Most important of all, section 15 of the 
1982 Act specifically removes the protections 
of the 1906 Act, where any form of 
liability arises out of the actions of union 
members and/or their officials, if the act 
complained of can be shown to have been 
"endorsed" or "authorised" by the union 
or one of its agents. 

Given all these developments it is 
obvious enough what needs to be done. 
For the first time in British history a right 
to withdraw labour collectively must be 
clearly established. The basic requirement 
is that in deciding to act in concert, for the 
purpose of improving or defending terms 
and conditions of employment, the individual 
worker must be able to avoid 
liability for breach of the employment 
contract. Whatever the legal formula 
adopted to secure this objective it should 
be recognised as the fundamental aim of 
Labour's new legal framework. 

The simplest way to proceed would be 
to provide that in future liability for 
contract breach would be limited to 
situations outside the context of a trade 
dispute. Given that workers are taking 
action in contemplation or furtherance of 
trade dispute, then no court should entertain 
an action against them for breach of 
contract. 

Of course a statement of this kind need 
not prejudge certain other related issues 
-notably the question of whether or not, 
and in what circumstances, employers 
should retain an ultimate right to dismiss 
workers who go on strike eg after due 
notice, or on certain conditions. My own 
view on this question is that in broad terms 
the position in the 1978 Act of the last 

16 


Labour Government represents the basis 
of a satisfactory compromise. Section 62 
of the Act allowed for dismissal provided 
that none of the workers involved were 
afterwards offered selective reemployment. 
This was termed the 'picking 
and choosing rule', since it was 
intended to prevent the selective victimisation 
of shop stewards and other so 
called 'militants'. Unfortunately, under 
section 9 of the 1982 Act, the scope of the 
picking and choosing rule was narrowed , 
so that it now only prevents victimisation 
within a given establishment at the date of 
the dismissal of the complainant. Thus, 
the employer who sees any erosion of 
strike action is free to 'pick off' the 
workers taking part, by dismissal plant by 
plant. This has been rightly termed "a blot 
on the law of unfair dismissal" which 
Labour must erase.• 

What would also be essential is a proper 
definition of what is to count as a trade 
dispute. Clearly the present restricted 
definition set out in section 18 of the 1982 
Act is in need of widening. It ought not to 
rule out all forms of secondary action. It 
should not prevent the enforcement of all 
forms of union membership agreement. 
Once again , in broad terms there needs to 
be a return to something like the scope of 
the definition before Conservative 
amendment -but many of the issues 
involved are considered in more detail 
below. 

The point to be made at the moment is 
more narrow but more fundamental. The 
aim must be fully to legalise what workers 
do themselves ie to obtain for them a right 
to take collective action in concert with 
other workers. Once this is done the legal 
position of their unions is transformed. 

'ihey are assisting in a lawful act. They can 
no longer be presented as the fomenters 
and encouragers of illegality who need to 
be protected from the 'normal' consequences 
of such action by a series of ever 
more complex immunities. On the contrary, 
they can resume their proper role as 
the agents of their members , enjoying 

rights which are no longer singular or 
unique to those enjoyed by unions in other 
countries. 

B. Freedom to work with 
union members only 
A second area where changes in the legal 
framework have affected the right to 
combine concerns the controversial subject 
of the closed shop ie situations where 
employment is made conditional on membership 
of one of a specified number of 
trade unions. Once again what needs to be 
done cannot be explained without a 
somewhat extended account of how the 
present position has emerged, notably the 
way in which successive Governments 
have sought to deal with the question of 
whether or not dismissal on grounds of 
non-unionism should be regarded as 'unfair'. 
Before the establishment of a right to 
compensation in cases of unfair dismissal , 
the legal position of the closed shop was 
fairly straightforward. It had been established 
that workers had the right to refuse 
to work with non-unionists so long as their 
reasons for acting in this way was a desire 
to defend or advance their trading interests. 
In this way the legal position was 
said to be the same as that which applied 
to commercial monopolies or cartels who 
had long been allowed to refuse to 
deal with non-members, and even refuse 
them membership, without threat of legal 
penalty. So long as the motive of the 
combination was not 'malice' or 'spite' 
against an individual , no question of 
damages could arise. 

This situation was inevitably complicated 
by the creation of the concept of unfair 
dismissal in 1971. The question then 
arose: was it to be regarded as 'fair' to 
dismiss a worker on grounds of non-
unionism? And if it was unfair, who was 
liable for the compensation? Under the 
1971 Industrial Relations Act the Heath 
Government made the closed shop unlaw


17 


ful in all its forms. But a number of 
alternative ways of maintaining "union 
security" were provided for "registered 
unions". The most important of these was 
the right to what was termed an "agency 
shop"-a form of modified closed shop 
well known in the United States. In any 
agency shop a worker who refused to join 
a union, or resigned his or her membership, 
was offered two alternatives to 
dismissal: 

(i) The chance to make a "service 
payment" to the union with an agency 
shop agreement which was equal to the 
sum required to become and remain a 
member. 
(ii) The chance to make an equivalent 
payment to a charity of their choice, 
which need not be connected to the 
trade union movement in any way. 
It was only where workers refused to 
adopt either of these options that dismissal 
on grounds of non-unionism was to be 
regarded as fair. 

Unfortunately, the notion of the agency 
shop was offered to British unions as a 

solution in quite the wrong context. It 
certainly failed to find favour with the 
TUC. This was understandable enough in 
the circumstances. In the first place it 
appeared as one of the provisions of the 
notorious 1971 Industrial Relations Act. 
The TUC decided to oppose this Act and 
all its provisions. Second, it was only on 
offer to "registered unions". The TUC's 
view was that the other conditions which 
went along with registration were quite 
unacceptable and designed to reduce 
trade union autonomy and influence. 
TUC policy was that member unions 
should refuse to register. Virtually all 
TUC unions observed a Congress decision 
to this effect. Third, there were additional 
conditions attached to agency shops which 
unions found objectionable anyway most 
notably the balloting and revocation 
procedures. 

Yet there is nothing inherently objec


tionable in the notion of the agency shop. 
It was not unknown in Britain before 1971 
and a few examples have emerged since 
1974. It has a most respectable international 
pedigree-notably in North American 
unions. It deals rather well with the 
difficult and controversial problem of the 
alleged conscientious objector -who 
suddenly announces that he objects to 
paying union subscriptions. In effect such 
people are informed that they can maintain 
their objection , but cannot expect to 
enjoy it free of charge. In this way the 
agency shop focusses on the main objection 
which trade unionists have to non-
unionists, who work alongside them and 
enjoy terms and conditions which union 
organisation alone makes possible. It 
prevents the existence of 'free riders'. 

It is worth recalling that it was a 
Conservative Government that first advanced 
this device as a reasonable compromise 
to the problem of the closed shop. 
Sir Geoffrey Howe, as Mr. Heath's Solicitor 
General, actually commended it as a 
practical and reasonable way of reconciling 
the feelings of 'genuine' conscientious 
objectors with no less 'genuine' trade 
unionists who thought there was a common 
obligation to support the union which 
bargained on your behalf. He also stressed 
that if American experience was any guide 
the agency shop appeared to avoid the 
need to make any dismissals on grounds of 
non-unionism. 

Union membership agreements 

However, the need for a compromise of 
this kind disappeared with Labour's return 
to office in 1974. The Act of 1971 was 
repealed and a different solution advanced. 
Labour defined the circumstances 
in which the law would consider that 

dismissal on grounds of non-unionism was 
to be fair in 1974-76. This was where a 
worker "refused, or proposed to refuse" 
to belong to a union with a union 
membership agreement. Such an agree


18 


ment would provide that it was the 
'practice' for employees of the same class 
as the dismissed employee to belong to 
"one of a number of specified independent 
trade unions". The only exception to 
be made where individuals could show 
that they "genuinely object on grounds of 
religious belief to being a member of any 
trade union". In these circumstances 
dismissal was to be "unfair". 

In many ways the 1974-76 solution 
worked well enough. Union membership 
agreements were signed with many employers 
and they usually provided that an 
exception should be made for workers 
with conscientious objections. Indeed, a 
recent study suggests that in most cases 
unions agreed to rather wider exceptions 
than those laid down by law. Often 
non-unionists already in the employ of a 
firm covered by a new closed shop were 
allowed to remain outside the ambit of an 
agreement. Quite frequently an agreement 
allowed for conscientious objection 
on grounds wider than religion. Nevertheless 
, it can be argued that the move 
towards written agreements overformalised 
the closed shop, so that it became 
more difficult to tolerate the existence of 
isolated groups of non-unionists in case 
the existence of the 'practice' was undermined. 


Difficulties also arose in two related 
areas. First, as the closed shop advanced 
to cover non-traditional groups-such as 
white collar workers in the public sector-
there was more chance that workers who 
had never considered .the possibility were 
faced with the demand for instant enrolment 
or the sack. The formal UMAs 
covering their situation did not always 
allow this to be regarded as exceptions. 
Much publicity was given to the odd 
'long-standing employee' who refused to 
join 'on compulsion' and encouraged 
others to do likewise. 

Second, from time to time workers who 
had at first agreed to join, fell out with 
their local shop stewards, or branch 
secretary, and sent in their resignation. 

Others came to consider that the union 
they had been forced to belong to was not 
sufficiently active in their interests -in 
my experience often when the union's 
leaders were trying to honour the terms of 
Labour's social contract! Others asked 
why the union could not ensure their 
promotion, or obtain their up-grading. At 
some point they became dissatisfied 
enough to refuse to pay any further union 
dues, and were eventually dismissed. 

By the late 1970s several events of this 
kind had received much unfavourable 
publicity. There was the celebrated case of 
the single chicken sexer, who got to meet 
Mrs. Thatcher and caused her to weep. 
There were the five Walsall dinner ladies, 
who lost their part-time jobs as a result of 
their refusal to belong to NUPE. Most 
notorious of all , there were the three 
members of the staff of BR, who resigned 
from the NUR and TSSA and were 
dismissed by their Area Manager. 

With the support of the Freedom 
Association they took their case to the 
European Court at Strasbourg. The issues 
involved were complex and most of the 
arguments deployed on both sides need 
not concern us here. Essentially the 
railwaymen were arguing that the Labour 
Government's Act of 1975 was contrary to 
the European Charter of Human Rights 
-to which Britain was a party. In effect 
they were claiming a form of unfair 
dismissal not permitted under the 1975 
Act. Before the case could come before 
the Court, Labour lost office in the 
General Election of 1979. As a result the 
case was presented by the new Conservative 
Attorney General, although the TUC 
put in evidence. 

Some labour lawyers have suggested 
that the Government failed to argue its 
case on the best possible grounds at 

~ Strasbourg; they allege that if this had 
been done the decision might not have 
gone in favour of the railwaymen. Nevertheless, 
this is what happened, on the basis 
of a majority verdict. 
There is also scope for debate about just 

19 


what was decided at Strasbourg. In particular, 
the grounds used to justify the 
decision are capable of interpretation and 
di agreement. What seems certain is that 
as it stood the Act of 1975 was found to be 
too narrow ; the single escape cause of 
"genuine religious objection" was in need 
of supplementation. It is also clear that the 
railwaymen were assisted by the fact that 
they had all joined the railway service 
before there was a UMA. 

Government changes 

One result of the Strasbourg decision was 
that the three railwaymen received substantial 
sums in compensation, far more 
than they could have obtained under the 
provisions of the 1975 Act. Another was 
that their case was much quoted during 
the passage of the 1980 Employment Act. 
Indeed Government spokesmen constantly 
alleged that what they proposed to do in 
respect of the closed shop was made 
necessary by the Strasbourg decision. In 
fact they went much further than that 
decision implied, and in 1982 another 
Employment Act went further still. As a 
consequence the pre ent situation is that 
UMAs are largely unenforceable at law. 
The main changes made by the present 
Government are summarised below. 

First, the personal grounds on which an 
employee can claim to remain outside a 
union within the UMA have been widened. 
It is now unfair to dismiss anybody 
who genuinely objects to union membership 
"on grounds of conscience or 
other deeply held personal conviction". 
Second, existing employees who have not 
at any time been a member of a trade 
union which is party to a UMA are also 
excluded; in effect the long-standing non-
unionist is protected from the consequences 
of a new UMA. Third, all existing 
UMA~ and any further examples of the 
practice, must now be preceded by an 
affirmat1ve ballot of the workers affected. 
80 per cent of those entitled to vote, or 85 

per cent of those who actually vote, must 
decide in favour of a UMA. Unless there 
is an affirmative ballot which results in the 
required majority, dismissal on grounds of 
non-unionism is unfair. 

Finally, the Employment Act of 1982 
greatly increased the level of compensation 
which can be claimed for unfair 
dismissal on grounds of non-unionism, so 
that at its maximum a payment of more 
than £30,000 can be awarded. It was also 
decided that trade unions could be 
'joined' in any action for compensation-
so that all or part of the sum awarded may 
need to be found by them. 

Anew approach 

How does the focus on collective freedom 
at work suggest that the problem of the 
closed shop should be approached in the 
light of this complex hi tory? Labour must 
start by restoring the broad balance of the 
common law position ; workers, like employers, 
should be free to refuse to 
cooperate with non-members, or those 
who refuse to join their association, where 
they are convinced that to do so would 
threaten their own bargaining position. 
On similar grounds I would argue that 
there should also be a right to refuse to 
handle the work of non-members. 

But it does not follow from this that 
either trade unions or their members 
should be free to impose a rigid form of 
closed shop, even where they have not 
recruited any members and there is no 
indication that tho e that do belong object 
to the presence of non-unionists. It should 
also be possible, within a given clo ed 
shop area, to allow for the odd conscientious 
objector, who e presence does not 
undermine the bargaining po ition of the 
majority. In my experience very few rank 
and file trade unionists would want to 
disagree with any of the above statements, 
although the best way to embody them in a 
legal form may well be the subject of 
debate. 

20 



My own proposals are five in number. 
There are three that are essential. First, 
the right to refuse to work alongside 
non-unionists, in certain specified circumstances, 
must be made lawful. In 
effect workers , through their unions , must 
be entitled to demand from their employer 
the recognition of what I would 
term a Trade Union Employment Area 
(TUEA) -much as unions were able to 
demand UMAs under the terms of the 
1975 Act, but with rather less formality 
and with more exceptions and options. 

Second, within the new TUEAs the 
conditions of the traditional agency shop 
should apply. That is to say, those who 
refused to join , or subsequently resigned , 
would be offered two alternatives before 
dismissal was regarded as 'fair' -ie the 
payment of the equivalent in union dues to 
the union as a service fee , or payment of a 
similar sum to be nominated to a charity 
not connected to any union. (If either 
option was chosen it would need to be 
combined with a 'check off' provision-ie 
payment of the sum required via deduction 
from the pay-packet by the employer. 
There would also be no other conditions 
attached to the agency shop. This time it 
would not be confined to 'registered' or 
even 'certified' unions.) 

Third, in addition to the options of the 
agency shop, when negotiating new 
TUEAs, I would favour exempting existing 
employees who had never belonged 
to any union , if this was their wish. This is 
partly because I am convinced that this is 
necessary for Britain to conform to the 
substance of the Strasbourg ruling, and I 
think it is right that we should so do. Also , 
in a lifetime spent studying the closed 
shop , I have observed that rank and file 
trade unionists are quite prepared to make 
an exception for the odd long-standing 
'non' who resents the arrival of the closed 
shop late in life. They know how to 'draw a 
circle' round people of this kind , who 
usually in the end agree to join the union . 

So I come to two further proposals, 

where I am uncertain of my ground and 

open to further argument. The first concerns 
the position of the 'genuine' religious 
objector, whose conscientious scruples 
were respected under the provisions 
of the 1975 Act. It is arguable that the 
agency shop deals with this problem, 
along with those of others who are able to 
develop less clearly defined and more 
instantaneous objections to paying union 
dues. There is much in this argument, but 
there are a few workers who belong to 
well-established and long-standing minority 
sects, such as the Christadelphians. It is 
arguable that something more should be 
done to accommodate them. As I understand 
their position it is that on their 
reading of St. Paul's epistle to the Corinthians 
they say they are not allowed 
directly to support any organisation other 
than their own Church. I, for one, am 
prepared to make special somewhat anomalous 
exceptions in cases of this kind. 
Once again experience suggests that most 
rank and file trade unionists would agree. 
They are usually prepared to be illogical in 
the interests of tolerance. 

I am far less certain I would carry all or 
most trade union activists with me in the 
case of my final suggestion. This concerns 
what Labour should do to replace the 
present balloting provisions for UMAs. It 
should be obvious that the unjustifiably 
high percentages required under the 1982 
Act are totally unacceptable. In effect 
they give a veto to a small minority of the 
labour force. It could also be argued that 
given the additional qualifications suggested 
above, notably those provided by 
the agency shop options, there is no need 
for a validating ballot in any form . On this 
argument Labour could reasonably insist 
on a return to the 1976 position, when 
trade unions were free to negotiate UMAs 
whenever it was possible to find an 
employer willing to agree to them. 

On the other hand , I have argued above 
the case for focussing on the rights and 
freedoms of individual workers, rather 
than the immunities of their unions. This 
approach has implications for the right of 

21 


members to be consulted and to decide 
things for themselves once they join 
unions. In chapter five I develop further a 
number of proposals in the field of 
internal union government, which would 
be needed to replace Parts 1 and 2 
of the 1984 Act. But it is arguable that a 
concern for union democracy is important 
enough to affect the way in which demands 
are made for the closed shop. In 
other words, that members at a particular 

place of work should have a voice in 
decisions to introduce union membership 
as a condition of employment; that there 
should be some indication that they object 
to the continued presence of non-
unionists , and at least see the need for a 
TUEA. Once this is granted the case for 
some form of validating ballot reemerges. 


It is also worth noting that since 1982 
there have been 80 or so validating ballots 
conducted under the very strict conditions 
of the second Employment Act. The great 
majority have been won, often with 
majorities of 90 per cent or more. Yet as 
far as I am aware they have been undertaken 
without official union backing since 
the TUC's position is that unions 
ought not to co-operate in implementing 
the existing legislation. For the most part 
they have been won as a result of the 
activities of local shop stewards, who 
knew that they could win, even at the 
present odds. It is difficult to believe that, 
if participation in a ballot vote requiring a 
simple majority were to become official 
union policy, unions would lose many 
such ballots. I think this is an option well 
worth considering. 

C. Freedom to assemble, 
communicate and persuade 
The legal problems in this area mostly 
arise out of demands for a right to picket. 
In fact picketing is nowhere defined in the 
law, but it is commonly understood to 

involve the activities of workers who 
attend "at or near premises" connected 
with a dispute -notably the exits and 
entrances of the firm or firms involved, 
Once again the legal complexities surrounding 
the position of workers and their 
leaders who appear on the picket line are 
long-standing, the product ofcommon law 
decisions and statutory regulation over 
many years. Unfortunately it is not possible 
to propose a way through this maze 
without first describing its main outlines. 

Attendance at or near a place of work 
can form the basis for an action for private 
or public nuisance. Unreasonable obstruction 
of the highway may be a criminal 
offence. In practice the main form of 
control over picketing is exercised by the 
police. They have power to issue instructions 
to pickets, which limit their numbers 
or entirely prohibit their actions if they 
believe that "a breach of the peace is 
reasonably anticipated". Any refusal to 
obey lawful police instructions constitutes 
obstruction to the police in the exercise of 
their duties-which is contrary to section 
51 of the 1964 Police Act. 

A limited right to picket was established 
by the 1906 Act, where the activities 
complained of were said to be "in contemplation 
or furtherance of a trade dispute". 
Picketing was protected for the purpose of 
communicating information and "peaceful 
persuasion". Section 15 of the 1974 Act 
re-enacted these immunities, but removed 
protection for picketing "at or near a 
person's residence". The 1980 Act provided 
an entirely new section 15, which 
significantly narrowed the scope of protection. 
With limited exceptions this was 
now confined to those who picket "at or 
near their own place of work" with their 
appropriate union officials. This effectively 
outlawed both 'secondary' picketing 
and those forms of 'primary' picketing 
which consists of workers in dispute who 
attend at or near their employer's head-
office or regional head-quarters. It was 
designed to make all forms of 'flying 
pickets' actionable by both the employer 

22 



concerned and any third party who could 
claim that their interests had been damaged. 
The effect is that a striker who strays 
beyond his own place of work is liable to 
the full rigour of the usual range of 
common law torts-notably inducement 
of breach of contract, intimidation and 
conspiracy to injure. Even lawful pickets, 
acting within the scope of the new section 
15, are liable for actions for conspiracy to 
cause loss by unlawful means if, by their 
express or implied agreement, they are 
joined by 'secondary' picketers who are 
not directly involved in their dispute. 

The limits of justifiable picketing have 
long been a subject of debate amongst 
labour lawyers and students of industrial 
relations. Even where agreement is 
reached upon what is justifiable it proves 
to be extremely difficult for those who are 
in agreement to find the appropriate legal 
formulation to embody just what they 
require. In public debate the subject is 
highly controversial and since the miners' 
strike extremely political. Few areas of 
industrial relations are more subject to 
prejudice, ignorance and misunderstanding. 
Yet Labour will be expected to say 
what it intends to do about the present 
position . Both the unions and Labour's 
political opponents will want to know 
exactly where the Party stands. 

The purposes of picketing 

My own view is that one must begin by 
analysing the purposes of picketing. Why 
do strikers, and their supporters, want to 
picket at all? Essentially picketing arises 
out of the need to communicate and 
persuade during a strike. Its intention is to 
make the strike effective. It follows that 
picketing is only necessary if there is no 
way of doing this without attendance at or 
near an employer's premises. For example, 
workers on strike may need to meet 
each other and their representatives. This 
may be essential to find out about the 

employer's latest offer and to take decisions 
on what to do next. 

But strikers, or their representatives, 
may also feel the need to communicate 
with other workers, whose activities impinge 
upon the effectiveness of their own 
actions. There may be reports that other 
workers are engaged in work that is 
normally done by strikers or that they are 
moving goods and delivering supplies 
which will enable the employer to hold out 
against consequences of industrial action. 
In these circumstances picketing will be 
used in an effort to find out how far this is 
the case, and whether or not the workers 
concerned have realised the implications 
for those who are on strike. In effect the 
aim will be to present the case for the 
strikers as they see it; to ask for help and 
co-operation in the name of 'solidarity'. 
Obviously if activity of this kind is to be 
free from liability there must be some kind 
of right to attend , communicate and 
peacefully persuade at or near the entrances 
and exits of firms whose activities 
affect the dispute. 

Finally, a dispute may be undermined 
by the continued presence in the firm of 
workers who are supposed to be on strike 
-a minority who voted against the 
decision to strike, or who refuse to accept 
a majority decision taken by their representatives. 
An employer may 'lock-out' or 
dismiss a group which is demanding 
recognition or some other objective, and 
import other workers in their place. This 
may involve collecting them at their 
homes and bussing them to work. In 
circumstances of this sort the aim of 
picketing is to persuade would-be workers 
to either join the strike or refuse to take 
strikers' jobs. In either case the final 
intention will be the same: to help make 
the strike effective. 

It should be clear now why trade union 
leaders often say that picketing is a sign of 
weakness; an indication that a strike is not 
yet fully effective. If all the workers 
involved withdraw their labour and their 
presence is important to the employer 

23 



there is likely to be little need to picket. If 
workers possess skills which are difficult 
to replace, and if there is a lively demand 
for their product or service, an employer's 
normal reaction to an effective withdrawal 
of labour is to improve the present offer. 
A compromise will soon be reached in 
circumstances of this kind. 

But picketing may be a necessary 
response to an employer's ingenuity or 
resolve. If work can be sub-contracted to 
other plants, or associated firms , even 100 
per cent effectiveness in a particular place 
of work may make little or no impact. If 
supplies or materials have been stored , or 
finished products have been stock-piled, it 
may be essential to prevent their movement 
if the employer is to be forced to 
re-open negotiations. If a previously 
reasonable employer takes the exceptional 
step of engaging alternative labour and 
bussing them to work , picketing may be 
the only answer. 

It should also be clear how activities of 
this kind can lead to demands for a 
widening of the dispute, and various forms 
of secondary action against the employer. 
Workers will naturally form the view that 
their disagreement with their employer is 
but the tip of the proverbial iceberg. Once 
they are defeated, they will say, the same 
employer, or others in the same industry, 
will 'take on' other groups. The answer 
will be seen in terms of 'solidarity now'accompanied 
by various forms of secondary 
'blacking'. 

What may not be so obvious, to those 
who have little or no experience of 
disputes, is just how prolonged and ineffective 
picketing raises the temperature 
on picket lines. Few things are more 
frustrating , after a period out of work , 
than watching others go through a gate to 
undermine your strike. Few situations 
produce more bitterness, or greater guilt. 
A prolonged and ineffective picket line 
does not engender an atmosphere in 
which soft answers turneth away wrath. 
The limits of peaceful persuasion and 
non-provocative response are rapidly 

reached and occasionally over-run. The 
situation is made worse by the fact that 
nowadays many workers drive to work in 
cars, or deliver supplies in huge and 
inaccessible lorries. The world is divided 
into those who can see why the atmosphere 
on a prolonged and ineffective 
picket line must get worse, and those who 
feel endless surprise and indignation. 

The role of the law 

Yet the law must do all it can to prevent 
intimidation and violence in situations of 
this kind, while at the same time recognising 
the legitimate purposes of picketing. 
To my mind the problems involved are 
best considered under four heads: First, 
the extent to which workers on strike 
should be free to enlist the help of others 
directly involved. Second, the area over 
which picketing should be permitted. 
Third, the conditions required to make 
'peaceful persuasion' a reality under modern 
conditions. Fourth, what shoud be 
done when picketers, or others on or 
around the picket line, seem likely to stray 
beyond the limits of peaceful persuasion? 

On the first count I see no justification 
for limiting the workers' freedom to 
obtain external assistance while nothing is 
done to limit the employer's right to act in 
a similar way. Yet this is just what the 1980 
Act demands. Of course, if it were 
possible to limit the right of multinationals 
to divert production to another 
country, or the right of members of an 
employers' association to fulfill each 
other's contracts, there might well be a 
case for limiting the worker's right to ask 
for help from other trade unionists. But I 
doubt if this can be done. If it were 
possible, as has been suggested , for legal 
limitations to be placed on the right of the 
employer to import what is traditionally 
termed 'blackleg' labour, there might well 
be a case for a similar limitation on the 
strikers' side. But such a law would be 

24 


virtually impossible to enforce and would 
be strongly resented by employers and 
their organisations. After all, in most 
cases the most readily available source of 
substitute labour is supervision. Few employers 
would want to exchange their right 
to use foremen to break strikes for the 
retention of the limitations on secondary 
picketing contained in the 1980 Act. They 
would regard this as a very poor bargain. 

The position is the same in the case of 
limiting the right to picket to the strikers' 
own place of work. I do not see how 
analagous limitations can be enforced on 
employers. As has been said, the extension 
of picket boundaries partly arises as a 
reaction to relative weakness at the place 
of work, and partly as a response to an 
employer's ingenuity or resolve. It is 
unfair and inequitable to penalise and 
constrict those who are weaker, or facing 
an ingenious or resolute employer, unless 
they stray beyond the limits set by the 
criteria of 'peaceful persuasion' and 'public 
order' which are considered further 
below. Within such limits, in my opinion, 
the right to collective freedom at work 
suggests that workers should be at least as 
free as their employer to try to mount an 
effective response. If, in their opinion, 
this is thought to involve travelling round 
the country to picket subsidiaries, or 
suppliers, or the firm's head office on the 
day of an important board meeting, I 
cannot see how a right of this kind can be 
denied to them on grounds of common 
equity. 

So we come to the much more complex 
question of how the right peacefully to 
persuade is to be made effective. The view 
of the judges appears to be that peaceful 
persuasion must not involve "any kind of 
constraint or restriction of personal freedom". 
As Lord Reid has said: 

" One is familiar with persons at the side 
of the road signalling to a driver 
requesting him to stop. It is then for the 
driver to decide whether he will stop or 
nor. That. in my l'iew. a picker is emitted 

to do. If the driver stops the picket can 

talk to him but only for so long as the 

driver is willing to listen". 111 

It follows that so called 'mass picketing' 
cannot be used to physically restrain cars 
or lorries, or the so called 'blackleg bus'. 
Lord Widgery has maintained that police 
are entitled to "clear a path" through a 
crowd of picketers to let out a blackleg bus 
if they believe that "the rights of the coach 
driver and the passengers would be interfered 
with by being forced to stop". In the 
case in question there was a " reasonable 
apprehension" that there might be "disorder" 
or the use of " threatening words or 
behaviour". In any case, said Lord 
Widgery , the police have a general duty to 
regulate the use of the highway and ensure 
that there is no "obstruction"." 

The TUC have complained that decisions 
of this kind have unjustifiably narrowed 
the right to picket and made 
peaceful persuasion impossible under 
modern conditions. They asked the previous 
Labour Government for "a right for 
pickets to communicate with the occupants 
of vehicles so as peacefully to 
persuade them" . In practice this turned 
out to be a daunting task, and no legislation 
was proposed. As V. Craig has 
observed there are many questions to be 
decided before a "right to stop vehicles" 
can be written into the law. Would it be 
exercised via the police, or by the pickets 
themselves? Would those approached be 
under a duty to listen as well as stop, and if 
so for how long? Would they be immune 
from further injunctions to stop throughout 
the course of a given dispute? Or could 
they be asked to stop again after seven 
days? Would non-strikers have similar 
rights to stop those who were on picket 
duty, and ask them to go to work? It is 
hard not to agree with Craig when he 
demands: 

"... those who propose to give pickers 
a right to stop must provide answers to 
these questions before making their 

25 



proposals. It is flippant to make the 
proposal and then leave the matter up in 
the air". 11 

My own view is that a right to stop would 
need to be exercised by the police on 
behalf of the representatives of workers 
involved in a given dispute. They would 
have to decide the reasonable limits of any 
period of detention, together with its 
frequency, along lines set out in an agreed 
Code of Practice. In this respect what I 
have in mind is not all that different to 
what many policemen have done in the 
past but without a legal duty to do so. With 
their help strikers have been placed in a 
position where representations can be 
made to drivers and their passengers. 
Prior consultation, usually through local 
trade union officials, has ensured the 
stopping of vehicles for a short period, for 
the purposes of peaceful persuasion. 
Where this has happened problems have 
only arisen after persuasion has been seen 
to be manifestly ineffective. But this 
brings us to the fourth and final question; 
what should be done if pickets appear to 
be about to overstep the limits of peacefulpersuasion? 

My answer to this point is that there caii 
be no legalisation of action that is clearly 
intended to intimidate, in the sense of 
offering threats of violence or physical 
coercion. So far as I know no reputable 
trade union has demanded that the law 
should be changed to grant such a right. 
The TUC's picketing code stresses that 
pickets should be advised to "act in a 
disciplined and peaceful manner even if 
they are provoked by non-unionists or 
others". They also say: 

"It will help to ensure that picketing is 
peaceful if an experienced member, 
preferably a union official, is in charge 
of the picket line. He should have a 
letter of authority which he can if 
necessary show to police officers or to 
workers attempting to cross the picket 
line. He should ensure that the number 

of pickets is no larger than is neces


13 

sary". 

Code of Practice 

After the passage of the 1980 Act the 
present Government issued a Code of 
Practice on picketing. It was said to 
provide a summary of the legal position 
and "guidance on good practice". Without 
adding to the law as such the provisions 
of the Code were to be "admissable 
in evidence and taken into account in 
proceedings". For the most part the Code 
provided a fair summary of the law, while 
warning employers of ways in which 
strikers might seek to evade responsibility 
by "changing the members of the picket 
line each day". "Large numbers" on a 
picket line were said to "exacerbate 
disputes and sour relations". Accordingly 
, said the Code: 

"... pickets and their organisers 
should ensure that in general the number 
ofpickets does not exceed six at any 
entrance to a workplace; frequently a 
smaller number will be appropriate". 14 

In introducing the Code to Parliament, 
Ministers made much of the fact the 
TUC's Code also referred to the need to 
ensure that there were no unnecessary 
pickets, and that their own Code also went 
on to suggest that union officials should 
liaise with the police. But for all that there 
are very significant differences between 
the two approaches. The TUC Code 
makes no attempt to impose fixed and 
absolute terms on the number of pickets. 
It suggests trade union liaison with the 
police, rather than the acceptance of 
quasi-legal responsibilities to ensure that 
pickets understand the law and the provisions 
of the Code. It certainly does not 
propose that union officials should make 
themselves responsible for enforcing a 
wide range of limitations on the effectiveness 
of pickets -including the mainte


26 



nance of essential supplies to the employer. 
Above all, perhaps, the Government 
Code limits its guidance and the 
prescription of responsibilities to workers 
and their representatives. It does not tell 
employers, or even the police, how they 
should behave (although it does remind 
the former of their legal rights) . Throughout 
the Code it is assumed that reasonability 
, moderation and discipline need only 
be taught to strikers and those who aid 
them. 

In short, the 1980 Code is designed to 
widen and reinforce the legal limits imposed 
by the 1980 Act. It should be 
repealed , alongside section 16 of that Act. 
In its place Labour should provide a more 
equitable Code which sets out in a less 
one-sided way more balanced guidelines 
for the preservation of peaceful picketing. 
It should entourage the maintenance of 
public order and the avoidance of provocation 
on all sides. Employers, under 
such a Code, would be expected to make 
reasonable provision for peaceful persuasion 
at or near their place of work. The 
police would be instructed to co-operate 
with offical picket leaders, and protect the 
right to communicate with vehicles. A 
more general use would be made of 
sections 9 to 18 of the TUC's Guide to the 
Conduct of Disputes. In such a context, 
guidance of the following kind, from 
paragraph 18 of the TUC Guide, would 
not be out of place: 

"In any situation where large numbers 
of people with strong feelings are involved, 
there is a danger that things can 
get out of control particularly in a 
confined area such as access to a 
factory. It is therefore particularly important 
for any such demonstrations to 
be conducted in a well organised and 
disciplined manner. It is also important 
that demonstrations of this kind do not 
convey the impression that the object is 
to blockade a workplace".15 

D. Freedom to represent and 
negotiate 
The final example of a collective freedom 
which the present Government has undermined 
is the right to represent fellow 
workers and to negotiate on their behalf. 
It should be clear that this does not merely 
involve the right to join and be active in a 
trade union. Effective collective action 
requires an opportunity to approach the 
employer and state a case on behalf of 
individuals or groups. At its most developed 
it involves the right to bargain 
over pay and other conditions. 

In broad terms the Tories have left the 
right to join and be active as it existed 
under a Labour Government. It remains 
an unfair dimissal to sack workers because 
they join and participate in union activities. 
Indeed, the Government would 
argue that they have actually added to the 
penalties that apply to employers who 
discriminate against union members in 
sections 3-5 of the 1982 Act. In fact the 
main purpose of these parts of the Act is to 
undermine the operation of the closed 
shop by adding to the compensation for 
dismissal on grounds of refusing to join a 
union. But in the interests of 'equity' the 
Government agreed that the same level of 
compensation should in principle be made 
available to workers who can show that 
they were dismissed for joining, or proposing 
to join , an independent union. They 
also left intact section 28 of the 1978 Act, 
which allowed time off for trade union 
activities. 

On the other hand, the 1980 Act 
repealed virtually all those parts of the Act 
of 1975 designed to encourage union 
representation and recognition by the 
employer. These allowed an independent 
union to refer a recognition dispute to 
ACAS. If this remained unresolved , and 
ACAS recommended in favour of recognition, 
the union could take a wages and 
conditions claim to the Central Arbitration 
Committee (CAC) , which was em


27 


powered to make a binding award. It was 
hoped that the threat of constant reference 
to the CAC would cause even the 
most recalcitrant employer to concede 
recognition. 

Also repealed was Schedule II of the 
1975 Act. This allowed access to the CAC 
where unions could show an employer did 
not provide "recognised" terms and conditions 
or at least the "general level" for 
similar work in the district. Once again an 
award in favour of the union was binding 
on the employer. More recently the 
Government has also abandoned Britain's 
long-standing commitment to a 'fair 
wages' policy for public sector contracts. 
This sought to ensure that public contractors 
paid either "recognised" terms or the 
"general level" in a given industry or 
trade. In July of this year they announced 
their intention to remove young workers 
from the protection of Wages Councils, 
limiting their functions to the fixing of 
minimum rates of pay for adults. 

In their different ways all these institutions 
and policies were intended by their 
founders to promote the growth of union 
membership and the spread of collective 
bargaining. In this way, it was assumed, 
the weakest and worst paid sections of the 
labour force might be. protected and 
assisted in their struggle to match the 
natural power of their employer. 

Past ineffectiveness 

In practice none of them were fully 
effective. Pay and job security remained 
relatively low in the Wages Council 
trades, and despite the involvement of 
unions in the wage fixing process the level 
of organisation has rarely risen above 
twenty per cent. More recently, as has 
been said, sections 1 to 16 of the 1975 Act 
proved a great disappointment, leading to 
no more than about 4,000 workers a year 
gaining recognition . Yet long before repeal 
the CBI was demanding the removal 

of these sections. The TUC was expressing 
scepticism and even the ACAS Council 
told the Government that they were . 
unworkable. 

It is worth examining in some detail 
what went wrong. In their report to the 
Secretary of State for Employment, 
ACAS gave three reasons. First, "the 
absence of criteria" to determine the basis 
for recognition meant that undue strain 
was placed on the ACAS tripartite Council. 
In effect the TUC nominees could not 
agree with the CBI members on how much 
support a union needed to be able to 
demonstrate before ACAS recommended 
bargaining rights. At the same time the 
independent members were unable to 
negotiate a compromise between them. 
As a result many ACAS recognition 
reports were vague and inconclusive. 

Second, in the absence of statutory 
criteria, the ACAS office tried to make 
progress by deciding references on an ad 
hoc basis. But for this to work they had to 
be allowed to use what they termed an 
"essential discretion". Unfortunately 
some employers challenged the right of 
ACAS officers to act in this way in the 
courts. The judges decided that in fact 
they had very little discretion. They 
needed to find hard evidence of longstanding 
and stable union membership, 
rather than a mere 'disposition' to support 
and join a union ·which has obtained 
recognition. 

Finally, when Grunwick objected that 
ACAS had insufficient evidence to enable 
it to decide in favour of recognition in 
their case because the company itself 
refused to provide the addresses of its 
employees, the Court decided in favour of 
the company. From that point it became 
clear that any determined employer could 
frustrate the intentions of the law, simply 
by refusing co-operation. Naturally 
enough, for its part, the Council concluded 
that it was unable to "satisfactorily 
operate the statutory recognition procedures 
as they stand". and asked to be 
excused from trying. 

28 


There is clearly a great deal in each one 
of these complaints. But in my opinion 
there were two further defects in the 1975 
provisions of equal or greater importance. 
In the first place they were exclusively 
concerned with the recognition of trade 
unions for what might be termed 'full 
collective bargaining purposes' ie the 
negotiation of wages and other conditions. 
There was no reference to the rights 
of worker-representatives as such. Nothing 
was done to provide rights of access 
to the employer which, in certain circumstances, 
stopped short of the right to 
bargain over wages and similar matters. I 
think this narrow emphasis on full bargaining 
rights for unions , rather than more 

limited representative rights for their 
members , helped to maximise employer 
resistance and contributed to the hostility 
of CBI nominees on the ACAS Council. 
They either had to propose the red meat of 
full-blooded negotiations, or decide 
against any form of recommendation . 
Second, the sanctions provided, via a 
reference to the CAC, turned out to be 
insufficient and unclear. It was hoped that 
a mere threat of a reference would cause 
employers to concede the full right to 
bargain. Yet in practice the few awards of 
the CAC on recognition were modest 
enough. Workers were offered small 
increases, which were in no way exemplary 
or punitive. As a result anti-union 
employers were not unduly worried about 
the threat of references to the CAC. 
Of course trade union officials tended 
to argue at the time that the CAC's awards 
should have been much more severe. But 
Parliament gave them no clear statutory 
instructions to this effect. Indeed, it gave 
no guidance at all. Lacking a clear authority 
of this sort, the CAC decided that they 
had no legal mandate for exemplary 
sanctions. 
Finally, the absence of clear criteria, 
allied to the need for ACAS to investigate 
all applications, wasted a great deal of 
time. It also meant that any number of 

enquired into -even if they only had a 
handful of members. There was nothing in 
the legislation to force unions to consider 
their priorities or areas of primary interest. 
There was also no way in which the 
procedure could be said to be helping to 
rationalise or simplify the problem of 
union rivalry and membership competition. 
On the contrary, it was more likely to 
encourage competitive bidding. As a 
result ACAS often felt unable to recommend 
recognition because there were two 
or three unions squabbling for membership 
amongst less than twenty per cent 
of the labour force. 

Positive rights 

Two very different questions arise from 
this catalogue of missed oportunities. 
First, should a further attempt be made to 
promote collective freedom by the development 
of legally based representation 
and bargaining rights? Second, if so, how 
can this best be done? I am much more 
certain I know the answer to the first of 
these questions than the second, but I will 
tackle both . 

There is undoubtedly a need for positive 
rights in this area. The problem of the 
recalcitrant employer, who fights the 
workers' attempts to organise and 'match' 
his natural power in the labour market, 
has in no way diminished in recent years. 
In many ways the climate has become 
more hostile as the recession and the 
pressures of international competition 
have grown in strength. There has certainly 
been a change since the time when the 
broadly based Donovan Commission reported 
unanimously in favour of recognition 
legislation and an incoming Tory 
Government introduced proposals to this 
effect in the 1971 Act. 

In the first place unemployment is four 
times as high . The relative strength of the 
unorganised worker is therefore that 

unions could ask for their claim to be · much weaker. Secondly, there has 

29 



emerged a cult of 'macho-management'. 
A new generation of 'hard-line' production 
orientated executives has been encouraged 
to believe that business success, 
as well as their own promotion prospects, 
depend on deploying what they are 
pleased to term their 'right to manage'. 
(This usually means consulting nobody 
but themselves before taking irreversible 
decisions affecting the future employment 
and well-being of staff.) 

Third, changes in the composition of 
the labour force have combined with 
advances in technology and product demand 
to produce an increase in the 
proportion of workers employed in jobs 
where trade union organisation has always 
been difficult to sustain eg distribution 
and the service trades . These have always 
been characterised by high rates of labour 
turnover and a great deal of part-time 
work-much of it done by women. Yet 
workers in these trades undoubtedly need 
trade unions at least as much as workers 
elsewhere. The natural power of the 
employer is at least as dominant as in large 
scale manufacture, or the extractive industries, 
or transport and printing -all 
areas where trade unions have developed 
long traditions of collective action and 
solidarity. Ifanything employer resistance 
to combination remains more entrenched 
in distribution and the services -especially 
among the large number of small 
and very small shopkeepers who are so 
near to the Prime Minister's heart. On the 
other hand, the experience of USDAW 
suggests that workers in these sectors can 
sustain and develop union organisation, 
once they can obtain a measure of recognition 
and acceptance by the employer. 

Curiously enough Labour's new programme 
makes no direct reference to the 
need to promote the growth of union 
membership and the spread of collective 
bargaining. There are certainly no specific 
proposals to this end. At one point the 
document says that "our new approach 
will depend on trade union organisation 
and a wider scope for joint negotiation 

and agreement", but this is within the 
context of proposals for tackling low pay. 
In this connection there are also pledges to . 
restore Schedule 11 of the 1975 Act and the 
fair wages policy for public contracts. In 
the light of Government's forthcoming 
attack on Wages Councils the document 
promises a review of the "whole scope for 
statutory support for fair wages", but once 
again the focus is on preventing low pay by 
minimum wage standards, rather than 
direct aids to union growth and recognition. 
I suspect this emphasis partly reflects 
doubts in Congress House and elsewhere 
over the efficacy of ACAS activities last 
time, but it may also merely be that public 
sector unions, such as NUPE, have been 
active in pressing their case for minimum 
wage legislation which affects workers in 

local government and the NHS. 

Guiding principles 

My answer to the second question posed 
above, is that these parts of Labour's 
programme are in need of some amplification 
to make it clear how Labour would 
attempt to improve on its previous record 
on union growth and recognition. I would 
propose that four principles should guide 
Labour's approach. The first is that, as in 
the case of other forms of collective 
freedom at work discussed above, the 
focus should once again be on workers' 
rights rather than trade union opportunities. 
Employers would have a legal obligation 
to grant the accredited spokesmen of 
appropriate independent unions certain 
elementary rights of access -including 
the right to process grievances on behalf of 
their members and the right to collect 
union dues. Rights of this sort would be 
enforceable at Industrial Tribunals and 
would need to be accompanied by adequate 
protection against subsequent victimisation 
and discrimination ie rights of 
reinstatement. Employers who had recognised 
unions would be able to claim that 

30 



they were already carrying out the intentions 
of such legislation. 

But representative rights should not 
stop there. Given a proven level of 
support there would be a right to present a 
claim covering wages and conditions. At 
this point there would once again be a role 
for a body like ACAS. 

This brings me to my second principle. 
An Act of Parliament would be required 
to lay down clear criteria governing the 
level of support required within a given 
bargaining unit to obtain support for 
variou degrees of recognition. These 
should be designed to give workers some 
help and encouragement whatever level of 
organisation they had achieved. Yet the 
degree of help should be related to the 
degree of support. Needless to ay a body 
like ACAS would have to be given 
adequate legal powers to enable them to 
investigate alleged levels of support. 

There is scope for reasoned argument 
about the level and form of upport 
required to qualify for variou types of 
assistance. My own view is that indications 
of support from 30 per cent of the workers 
in a bargaining unit should be enough to 
obtain the right to present a wage claim 
and have it taken seriously. (I believe it is 
possible to draft a statute that can be made 
to work with this aim in mind without the 
problems that aro e in the USA over the 
need to 'bargain in good faith'.) I also 
think that once a union can demonstrate 
that they have majority upport they 

hould have the right to binding arbitration, 
if the employer till refu e recognition 
. If a body such as the CAC finds that 
this doe not re ult in recognition there 
ought to be an ultimate right to an 
'exemplary award'. 

Recognition should al o be viewed as an 
open-ended concept. Employer who 
have agreed to bargain about wages or 
conditions hould not be allowed to refu e 
to bargain about other important matters 
-uch as closure . 

My third principle would be that a 

number of other development , which 

Labour will naturally want to encourage, 
should be dealt with in a way which a i ts 
the spread of rights to represent and 
negotiate, for example, the restoration of 
'fair wages' clau es in government contracts, 
or the development of Wages 
Councils and Joint Industrial Councils. In 
the case of government contracts it would 
be possible to insi t that would-be contractors 
should be able to demon trate that 
they have not refu ed to recognise 
appropriate trade unions with members in 
their employ. It would also be worthwhile 
looking again at a number of neglected 
proposals of the Donovan Commis ion. 
They suggested that section 8 of the 1969 
Act, under which employers were required 
to observe " relevant terms and 
condition " in their industry or trade, 
should be adapted and applied to areas of 
low organisation such as the Wages Council 
industries. They also proposed that 
compulsory unilateral arbitration hould 
be available "in indu trie , sections of 
industry or undertakings" in which the 
Secretary of State for Employment believe 
that " it can contribute to the growth 
or maintenance of some collective bargaining 
machinery". 

Industrial democracy 

I also believe that the early implementation 
of the EEC Vredeling Directive on a 
right to information and di closure hould 
be approached in a way that encourage 
recognition and the right to bargain. Even 
the promulgation of the long awaited Fifth 
Directive on Worker Representation on 
Management Boards should be looked at 
from thi point of view. 

In thi respect A New Partnership: A ew 
Britain is worth quoting. It ays: 

"A key feature will be to provideworkers with positive rights to information 
, consultation and representation in 
company decisions. The aim will not be 

31 


to impose any particular model or 
method, but to widen the collective 
bargaining agenda beyond wages to 
crucial investment decisions. We see 
new rights for workers as a catalyst for 
the extension of democratic involvement 
and accountability not just within 
the enterprise but also beyond it in 
sector and national planning". 

These are admirable objectives, although 
they need to be backed by effective 
sanctions. It was partly because the last 
Labour Government came to the conclusion 
that these could not be achieved 
without a direct union presence in the 
boardroom that they decided to establish 
the Bullock Committee on Industrial 
Democracy. Bullock proposed the use of 
existing union machinery to select 
'worker director' to sit alongside an 
equal number of management nominees. 
However , it will be remembered that the 
CBI and other management organisations 
mounted a strong campaign against the 
implementation of Bullock's majority 
report and considerable parts of the trade 
union movement were found to be unenthusiastic 
or even opposed. The main 
objections on the trade union side 
concerned the need to preserve trade 
union independence in the field of 
collective bargaining over wages and 
conditions. As a result very little was done 
about the Bullock Report by the time 
Labour left office in 1979. 

In these circumstances the Party and the 
TUC are probably wise to make it clear 
that next time they will not seek to impose 
the Bullock model , and will try, instead, 
to develop the range and scope of collective 
bargaining. All I would want to stress 
is that the method adopted ought also to 
encourage the establishment of 
elementary bargaining rights for those 
struggling to obtain recognition. A valid 
criticism of Bullock's proposals, which 
resulted from their terms of reference , 
was that they appeared to be exclusively 
concerned with extending the rights of 

trade unionists in areas where unions were 
already well established eg large firms 
employing more than two thousand workers. 


Union rivalry 

So I come to my fourth and final principle, 
which is easier to state than express in 
concrete form. I would like to see the 
statutory machinery for advancing the 
frontiers of collective freedom fashioned 
in such a way that it encouraged union 
co-operation and discouraged union rivalry. 
I think this would lower the degree of 
employer resistance and reassure the 
public. Just as important, I believe it 
would make it much more likely that 
union membership would rise significantly 
in the not so long run. 

Union rivalry remains the major defect 
of the British trade union movement. It is 
much more important -because much 
more common -than so called undemocratic 
decisions by unrepresentative union 
executives. As we have seen in the period 
from 1974 to 1979 it produced several 
bitter recognition disputes and led ACAS 
to refuse a number of important recognition 
claims. The danger is that a more 
effective procedure for aiding recognition 
could merely stimulate and foster a self-
defeating growth of union rivalry. 

The problem is to find an acceptable 
way of giving expression to this principle. 
It is impractical to seek to embody in the 
proposed recognition criteria a plan for 
the desired direction of union growth alloting 
various parts of the unorganised 
labour market to one union after another. 
Quite apart from the uproar this would 
cause I am unable to come up with such a 
plan. Itis equally unrealistic to expect that 
the TUC will provide one. Ifthe idea were 
feasible Congress House would have 
produced a draft years ago. 

One suggestion , which I advance to 
start a discussion , is that it should be made 

32 



clear that ACAS, or its successor, would 
be charged with the task of avoiding 
inter-union competition as far as possible. 
In other words, unions would know that 
when considering whether or not to grant 
a union claim , ACAS was more likely to 
look with favour on single-union applications. 
In this way, it might be hoped, 
unions would come to appreciate the 
advantages of agreeing on areas of recruitment 
and expansion. 

Another possibility, which would assist 
ACAS in carrying out such a task, is that 
the TUC could be persuaded to operate 
some sort of sieve procedure. In effect 
ACAS would refer to the TUC the 
problem of deciding whether or not a 
given applicant union was 'appropriate' 
and 'bona-fide' in respect of a particular 
recognition claim. As in the case of the 
application of the TUC's famous Bridling-
ton Principles for the avoidance of disputes 
between member unions, this would 
not involve the Congress in the formulation 
of an overall plan. They would remain 
free to decide each case before them on 
the basis of the facts as they appeared at 
the time. But the result should be a 
gradual reduction in wasteful and self-
defeating inter-union competition. 

E. Freedoms against the 
employer-a summary 
This section has been concerned with 
illustrating how an extension of individual 
rights is required to develop collective 
freedom at work. It began by focussing on 
the need to establish a freedom to withdraw 
labour collectively free from contractual 
liability. Ifthis were done, and the 
definition of a trade dispute suitably 
widened , unions would be free to resume 
their proper role as the lawful agents of 
their members. 

The second area illustrated the freedom 
to work with union members only. It was 
proposed that this right should be restored 
, but within a legal framework that 

avoided a rigid form of closed shop. 

The section then considered the needs 
of workers for a satisfactory but peaceful 
right to picket. It was argued that there 
was no case for imposing restrictions on 
workers that did not apply to employers. 
Other than that, the main proposal was for 
a limited right to stop vehicles. 

Finally, a number of examples were 
advanced of how the right to representation 
and negotiation could be advanced. 
Once again the focus was on worker 
rights, rather than trade union immunities. 


What all these areas of law have in 
common is that they are mainly concerned 
with the liabilities and rights of workers 
and their organisations vis a vis employers, 
or allegedly injured third parties. 
Moreover, for the most part--though not 
entirely -the threat of liability derives 
from an attempt to plan, carry out, make 
effective or extend the frontiers of collective 
action. 

But, as was suggested in chapter one, 
these are not the only areas of law which 
affect trade unions and their members. 
The 1984 Trade Union Act is centrally 
directed towards what goes on within 
trade unions, rather than with their relations 
with employers or third parties. 
Each of its three parts is carefully calculated 
to modify and re-direct the way in 
which previous statutes and earlier common 
law decisions have sought to regulate 
the relationship between unions and 
members. Of course the Act has wider 
implications and was designed to influence 
both industrial relations generally 
and the financing of the Labour Party. 
Indeed, in some ways it may be said to be 
the most ambitious of all three of the 
Government's attempts to use the law to 
restrict union freedom. Already it has 
made a significant impact on how strikes 
are validated and the likelihood is that it 
will soon begin to influence the election of 
union executives. The next chapter considers 
what the Labour Party should propose 
to do about its repeal and replacement. 

33 


5. Freedom within Trade Unions 
One of the most common misconceptions about trade unions is that until 
the passage of the present Government's legislation their relations with 
their members were largely unregulated by law. In fact common law 
principles of contract and notions of natural justice have long been 
recognised as applicable to internal union relations, producing a steady 
flow of case law and an extensive literature on the subject. Moreover, 
even before 1980 several important statutes were passed which regulated 
both the relations between unions and their forms of government notably 
the 1913 Trade Union Act (which dealt with the raising of 
political funds), and the 1964 Amalgamation Act. It follows from this, 
unfortunately, that once again a discussion of what Labour ought to do 
must begin with a summary of the position both before and after the Acts 
of 1980-84. 

Common law 

The basis of common law jurisdiction is 
that the courts regard a union's rules and 
constitution as a contract between the 
members. This means that its terms must 
be strictly adhered to , and that members 
have a legal right to any benefits and rights 
specified in the rules -eg in relation to 
union elections and participation in union 
government. They also cannot be disciplined 
or expelled in ways not provided 
for under the rules and the courts will 
interpret any general expulsion rules in a 
limited way in the interests of the individual 
member. This oversight of union 
rules I have elsewhere termed "the authorisation 
principle" . It is intended to 
ensure that before any union leader or 
executive acts they are able to cite a rule 
which authorises them to do so. 

But the over-sight of the common law 
does not stop at this point. All domestic 
tribunals, such as the executive committee 

of the union when considering cases of 
disciplinary action, must observe what 
lawyers term the "principles of natural 
justice". These entail the need to act in a 
fair and quasi-judicial way , which the 
Americans rather appropriately term a 
respect for "due process". In the case of 
unions this involves, amongst other 
things, informing members in advance of 
any charges against them ; allowing them 
an opportunity to state their case etc. In 
addition , since expulsion from a union 
may affect a person's ability to earn a 
living, the courts take the view that unions 
must 'refrain from arbitary behaviour' in 
dealing with their members' rights and 
interests. 

Some legal commentators have argued 
that in applying the principle of authorisation 
and natural justice the courts have 
over-stressed the rights of the individual at 
the cost of "the industrial relations 
merits". 16 It has been suggested that 
decisions and even expulsions have been 

34 


regarded as unlawful where the worst that 
has happened has been that the union in 
question has misread a minor clause in its 
rule book, or cited the wrong subparagraph. 
It has also been argued that on 
occasions judges have expected too much 
from laymen , who may not be fully aware 
of how earlier judges have interpreted the 
more arcane requirements of natural 
justice. Be that as it may, it cannot be 
contested that for some time now both 
principles have been applied with considerable 
strictness to internal trade union 
activities. And since the case of Bonsor, in 
1956, those who can demonstrate that 
they have been unlawfully harmed by 
their union, in defiance ofeither principle, 
have been able to obtain compensation in 
the form of civil damages. 

The1980Act 

What changes and additional forms of 
liability have been grafted on to common 
law liability as a result of recent legislation? 
We must begin with the Act of 1980. 
This sought to establish protection against 
"unreasonable exclusion or expulsion" 
where there was a union membership 
agreement in operation ie it was intended 
to provide extra protection against arbitrary 
action within a closed shop area. 
Complaints are heard by Industrial Tribunals 
in the first instance, with a right of 
appeal to the Employment Appeal Tribunal 
on an issue of law. Compensation is 
fixed on a scale related to unfair dismissal 
compensation.

It was never possible to obtain from 

Government spokesmen, during the pas


sage of the 1980 Act, how far they took the 

view that sections 4 and 5 of the Act were 

likely to add significantly to the rights of 

union members at common law. Clearly 

there was a right of 'exclusion' as well as 

'expulsion'-which meant that under the 

statute a would-be union member could 

complain of a refusal to allow entry into a 

union operating a pre-entry closed shop. 
The common law has not so far recognised 
a right to join any vocational association 
-either a trade union or a professional 
association. So that in this area at least an 
additional jurisdiction was created. 

What was made clear was the likely 
meaning to be attached to the term 
'unreasonable' -both in respect of 
exclusion and expulsion cases. In the case 
of the former would it include a refusal to 
admit on grounds of high unemployment 
among existing members? In the case of 
the latter could it exten·d beyond the 
existing bounds set by the authorisation 
principle and natural justice? These questions 
were never answered and no guidance 
was given by the Act. Since 1980 it 
appears that very little use has been made 
of sections 4 and 5, which is not surprising 
in the light of what the Act of 1982 did to 
the closed shop. As a result the position is 
still unclear. 

The 1984 Act 

The next Act to affect internal union 
relations directly was that of 1984. As has 
been said, each part of this measure added 
very significantly to the degree of statutory 
control. Part 1 imposed periodic, 
universal direct balloting on all unions for 
the purpose of electing their "principal 
executive committee". All forms of indirect 
election were rendered unlawful 
and the presumption is that voting will be 
by postal ballot. Workplace ballots are 
permitted if a union is satisfied that it can 
meet the stringent conditions laid down 
for postal ballots under section 2 of the 
Act -eg secrecy, fair and accurate 
counting, and an up to date and comprehensive 
register. 

Part 2 of 1984 required similarly stringent 
and universal ballots before official 
strike action. It specified in considerable 
detail the question to be posed on the 
voting paper, including the fact that given 

35 


the present state of the law , as we saw in 
chapter two , any collective action is likely 
to involve the worker " in a breach of his 
contract of employment". This subsection 
has been rightly termed the 'intimidation 
cl._ause'. Securing an affirmative 
majority obtains the right to use 
lawful strike' action, but only if the strike is 
called within four weeks of the ballot. 

Part 3 of 1984 dealt with political funds. 
It amended the 1913 Trade Union Act, 
which set aside the effects of the notorious 
Osborne judgment of 1910. In the 
Osborne case the House of Lords decided 
that trade unions were not allowed to use 
any of their existing funds for so called 
political purposes-most notably financing 
and sponsoring Members of Parliament. 
The 1913 Act, a compromise 
obtained by the infant Labour Party from 
the Liberal Government of the day , 
allowed unions to spend money on political 
objectives where they had conducted a 
ballot of their members which favoured 
the establishment of a separate political 
fund . It also defined what was to count as 
'political' and stipulated that such activities 
could only be financed from a fund 
established for this purpose. 

Part 3 of 1984 restricts the operation of 
the 1913 Act in three ways. First, ballots to 
establish or continue a political fund must 
be undertaken and won every ten years. 
Second, the criteria to be observed in 
running them are made to conform to 
those stipulated in Parts 1 and 2 of the Act, 
Third , the definition of what is to count as 
'political' is significantly widened. It now 
appears to cover such activities as campaigns 
by a union like NALGO , which is 
not affiliated to the Labour Party and has 
no political funds , against reductions in 
social services and rate capping. 

Union democracy 

As in previous sections, it is best to begin 
by deciding what Labour should do about 

the present position by asking why unions 
require rules, constitutions and committees 
to take decisions on behalf of their 
members. The short answer is because · 
combination , to be effective, requires 
order and solidarity and a respect for 
collective decisions. 

Ifcollective bargaining is successfully to 
replace individual bargaining there must 
be a procedure for arriving at common 
policies. So far as it is possible members 
must have an opportunity to participate in 
decisions which they may be required to 
put into effect -in the last analysis by 
withdrawing their labour. Yet all the 
responses of unions , and all their administrative 
decisions, cannot be preceded by 
debate and agreement. There has to be a 
role for leadership -not least while a 
dispute is in progress and the employer is 
making a series of final offers which have 
to be assessed and judged. But if leadership 
is to be followed and trusted , it 
must emerge as the result of some process 
of participation -the most obvious of 
which is some form of election. 

It can thus be argued that the main 
function of union rules and constitutions is 
to foster participation and membership 
involvement in policy determination and 
leadership selection. Unless this is done , 
and done effectively, unions are unlikely 
to be able to commit their members to 
collective action. In this sense democracy 
in trade unions is not a luxury, or an 
opportunity for personal expression. It is 
the necessary price paid for unity and 
solidarity. 

Reservations 

However, three reservations need to be 
entered at this point. First, solidarity is 
difficult to come by and unity is never 
complete. There are always differences 
between members about what they want 
and who they wish to lead them . Members 
have different priorities according to their 

36 


age, skill, occupation, traditions and attitudes 
to collective action. It follows that 
there are always minorities willing to 
complain about what leaders do in their 
name, or what majorities decide should be 
done. Sometimes minorities or individuals 
take their differences to the point where 
they refuse to obey properly authorised 
leaders who are carrying out majority 
decisions. Given the commitment to collective 
action and the importance of 
preserving majority rule this gives rise to 
the problem of union sanctions and union 
discipline. Unions must have sanctions of 
some kind , but they are almost always 
extremely reluctant to use them . 
Second, the manufacture of commitment 
and solidarity in different unions cannot 
be ensured by a single participative model. 
Like firms, or political parties, or 
London clubs, or University Senates, or 
the Inns of Court, unions develop their 
own constitutional arrangments for determining 
policy and selecting leaders. Those 
who study them with any degree of 
sympathy or understanding usually revel 
in their wide diversity of arrangments for 
taking essentially similar decisions. 
Where they are small or occupationally 
homogeneous, they tend to rely on direct 
methods of election; unless they give 
special emphasis to the role of their annual 
conference. Where they are unusually 
large and heterogeneous they invariably 
'mix' direct systems of election with 
indirect systems. This is thought to be 
more flexible and to further future amalgamations 
and mergers. Students of industrial 
relations-including the present 
writer -have written long and boring 
books about the factors which influence 
and determine the structure and government 
of different unions. Fortunately they 
need not concern us here. All we need to 
note is that, as in so many walks of life, 
what is required is what works. 

Third, because of the organisational 
importance of participation to trade unions 
, they need to be far more democratic 
than most other organisations in modern 

society. Firms, especially large and 
powerful firms, can afford to be far more 
authoritarian and bureaucratic as one 
moves upwards towards the boardroom. 
Boards of directors hardly ever take votes 
and regularly re-elect each other. Shareholder 
control is usually a mockery and 
annual general meetings are almost invariably 
rubber stamps-unless the company 
has had a disastrous year, or it is 
threatened with a take-over bid. Itis much 
the same with professional bodies, trade 
associations and in most organised religions. 
These admirable public institutions 
are for the most part organised on the 
basis of recognised levels of hierarchy and 
accepted degrees of distinction. They 
never have to call on their members for 
united action which could result in dismissal. 
Most of their leaders would have a 
hard time controlling the average union 
branch , let alone a hostile factory meeting. 
They have hardly ever heard of 
Citrine's ABC of Chairmanship-essential 
reading for any union official facing a 
rank and file revolt. 

Nevertheless, trade union democracy is 
sometimes a wilting and sickly bloom. The 
problem is apathy and access to members. 
Unless workers can be contacted at the 
place of work during working hours few 
are prepared to turn out for routine 
branch meetings. Of course, those who 
are unusually active will , by definition , 
turn up more regularly. Many of them will 
be more 'militant' than those who stay 
away , although they may be unwilling to 
take on the hardest work. In any case, all 
the indications are that nowadays the 
'militant' few cannot commit the more 
moderate but absent majority to any 
sustained form of action which they do not 
support. And in the present climate 
sustained action is required to move 
employers. 

Partly for this reason, as Undy and 
Martin show in their recent study, there 
has been a steady growth of more direct 
methods of securing participation in decisions 
likely to result in strike action. This 

37 



pre-dates the coming into effect of Part 2 
of the 1984 Act. It includes an increasing 
use of secret ballots. Leaders who have 
sought to go against this trend have been 
rejected and humbled-though they have 
not always been prepared to admit it. 17 

The law and union government 

What conclusions may be drawn about the 
role of the law in relation to union 
government from the above analysis? 
What are the implications for the repeal or 
reform of exising legislation and the 
modification of common law liability? 
Four points can be made. First, if the law 
is to perform a useful and constructive role 
it should be designed to help trade 
unionists themselves with two complementary 
aims in mind : 

(a) to improve opportunities for involvement 
and participation in union decisions; 
(b) to safeguard individual membership 
rights under existing constitutions and 
rules. 
All the evidence suggests that the first of 
these aims is best advanced by promoting 
and protecting membership rights at the 
place of work. At the very least, there 
must be a right to hold meetings and a 
right to organise and participate in elections 
on employers' premises. Those who 
are genuine in their expressed regard for 
the state of union democracy must favour 
rights of this kind. It is the primary test of 
their sincerity. 
During the passage of the 1984 Act this 
point was made over and over again from 
Opposition benches, but without making 
much impact on Government spokesmen. 
They were taken up with their ever more 
rigid model of democracy; with fastening 
duties and liabilities on union officials. 
They were mainly concerned to threaten 
unions with endless legal wrangles, and 
constant re-elections , whenever it was not 
possible to show that an impractical and 
unvarying system of plebiscite democracy 
had been carried out to the letter. 

It is true that when it was clearly 
demonstrated to them that workplace 
ballots produced much higher turnouts , 
the Government were eventually prevailed 
upon to allow balloting at the place 
of work. But they continued to insist on 
the same stringent conditions as those laid 
down in their 1984 'postal model' and 
refused to agree to a proper framework of 
complimentary obligations to be imposed 
on employers. 

It is also true that back in 1980, as part 
of the scheme to promote the use of 
ballots by providing a subsidy, Ministers 
agreed to provide that unions could 
"request" employers to grant them "a 
convenient opportunity" to conduct such 
a ballot and that section 2(1) of the 1980 
Act went on to stipulate that " the employer 
shall , so far is reasonably practical, 
comply with that request". But it is far 
from clear how far this right extends, or 
what is is worth, or how it can be enforced. 
It also does not cover election meetings , 
or procedures for the nomination of 
candidates. Nothing is provided to deal 
with other kinds of trade union decisions 
eg those that clearly do not involve secret 
ballots in the terms of the 1980 Act. 

What Labour must provide is a more 
extensive and balanced framework of 
participative rights, which fully recognises 
the extent to which union democracy 
depends on adequate workplace facilities. 
This would need to go far beyond the 1975 
ACAS Code of Practice, which only deals 
with time off for trade union duties. It 
essentially concerns the 'industrial relations' 
activities of union officials, such as 
shop stewards. It does not provide general 
facilities for union members. Of course, 
although adequate facilities for contacting 
members and involving them in union 
government usually involves workplace 
rights this does not mean that Labour's 
legislation in this field should discriminate 
against other forms of membership contact. 
Some unions prefer to use postal 
ballots to deal with major election contest. 
For this reason Labour should also pro


38 


vide a right to 'freepost' facilities. 

Yet experience of recent political fund 
ballots, imposed under the recent restrictive 
provisions of the 1984 Act, suggests 
that , offered the chance, the great majority 
of unions prefer 'mixed' systems of 
participation. In other words, workplace 
ballots where large branches are organised 
on a workplace basis, and postal 
ballots for scattered sections of the membership 
organised in general or area based 
branches. In this way very high levels of · 
participation were obtained in -recent 
political ballots-although tqe results did 
not please Labour's opponeqts. 

The second point to emphasise is that 
within a balanced legal frame}Vork there is 
no justification for many of tpe petty and 
meaningless restrictions imposed by the 
1984 Act. For example, no good reason 
has ever been given for the total ban on· 
'indirect' elections to union executives. 
Government spokesmen were totally unable 
to even explain why they were 
insisting on this bizarre and unique condition 
in 1984. They never even sought to 
suggest that the indirectly elected executive 
members of APEX, or,the GMBATU, 
or NALGO, were less responsible, or 
more unrepresentative, or of a lower 
standard, than other directly elected 
members in the same or different unions. 
When asked why it was that indirect 
elections were still thought to be appropriate 
for the Law Society or Unilever, but 
not for the TGWU, Government spokesmen 
took offence. 

Similar considerations tell against an 
exclusive reliance on official strike ballots 
to validate strikes. As embodied in Part 2 
of 1984, this resembles nothing so much as 
the system of mass plebiscites favoured in 
the early days of the Third Reich. Membership 
participation is viewed as a right to 
answer simple questions with an unqualified 
'yes' or 'no'. There is no notion of a 
developed and discursive democracy , 
where there is room for delegated responsibility 
and reporting back. Nobody is 
supposed to move amendments, or adv


ance counter-proposals. Yet once again 

this primitive system is not to be imposed 

on the BMA, or the Conservative Party 

Conference, which never has binding 

votes anyway. Only trade unions are to be 

placed within the confines of this rigid and 

intimidatory system. 

Of course it is not suggested that 
Labour should seek to discourage strike 
ballots in any form. On the contrary, as 
was explained above, the present trend is 
towards direct methods of participation-
partly because of the size of many modern 
bargaining units, and partly because of the 
uncertain conditions of the mid-1980s. 
Part 2 of 1984 has, it is true, given a further 
impetus to this development-especially 
since . a number of employers have 
threatened legal action unless ballots have 
been held within the terms of 1984. But all 
.J.-abaur needs to do is to encourage and 
facilitate the widest possible range of 
participative methods: workplace meetings 
and secret ballots; representative 
conferences in addition to direct consultation 
with members. Once again , what 

should be .encouraged is what works 


and in the last analysis the best people to 

decide the appropriate 'mix' must surely 

be trade union members themselves. 

To be fair it must be admitted that in the 

case of strike ballots the Conservatives 

were not totally without arguments. They 

simply asserted that they happened to 

know that secret ballots were more demo


cratic than shop floor meetings , because 

the latter were invariably 'rigged' and 

subject to intimidation. Naturally enough 

no evidence was adduced to prove this 

since none exists. Instead reference was 

made to occasional television news items, 

where mass meetings appeared to be 

followed by what looked like a confused 

and indeterminate show of hands. 

Unsubstantiated allegations of this kind 
.do not constitute a convincing case against 
all forms of decision taking which do not 
conform with Part 2 of 1984. On the 
contrary, it has been my experience that 
properly conducted meetings at the place 

39 



of work can be an equally valid way of 
deciding whether or not to use industrial 
action . The decisions that emerge as a 
result can be far more reliable and 
produce a greater sense of unity and 
commitment. Where conditions are 
appropriate they should be encouraged 
and facilitated . But this means that it must 
be possible for all the workers involved to 
attend. There must also be adequate time 
for discussion and debate before a final 
vote. 

Of course, in any system of decision 
taking so far invented, there remains a risk 
of manipulation, or even intimidation. 
(To judge from recent leaks such things 
are not unknown in the Cabinet.) But in 
the case of trade unions it is possible to 
deal with these potential blemishes without 
insisting on mandatory ballots, backed 
by the threat of a loss of immunities. 
Which brings me to my third point. 

Democratic guidelines 

While it is foolish and unjustifiable to seek 
to impose on all unions the same rigid 
model of plebiscite democracy, it does not 
follow that there is no case for trying to 
ensure the observance of certain well-
established democratic principles. Indeed 
, my view is that once unions are 
assured of an adequate framework of 
participative rights at the place of work, 
they ought to have no objection to this. 
What is required is agreement on a set of 
'democratic guidelines', or 'minimum rule 
book standards'. These should be discussed 
and agreed with the TUC before the 
introduction of a bill embodying statutory 
participative rights at the place of work. 
They could then be embodied in a Code of 
Practice, which would be taken into 
account in deciding how far individual 
unions were entitled to enforce their new 
rights. In general terms unions would have 
to show that their internal decision-
making processes measured up to stan


dards set out in the Code of Practice. This 
should provide both an incentive and the 
means to improve democratic practices. 

The contents of such a Code of Practice 
would mainly concern union rules and 
regulations affecting elections, workplace 
representation and the use of industrial 
action. But there is no good reason why 
other subjects should not be covered. In a 
pamphlet of this length I can do no more 
than indicate the kind of standards I 
myself would favour. 

In the case of union elections the Code 
might provide that the procedures for 
nomination and voting should be 'fair' and 
conducive to accuracy. Members of a 
given executive should emerge as the 
result of a process of individual voting-
either by means of direct participation , or 
by a 'mix' of direct and indirect methods. 
One result of guidelines of this kind would 
be the elimination of practices like branch 
block voting -where those who attend 
can commit the entire vote of the branch 
to the candidate they favour . In the case of 
the use of industrial action the criteria 
would need to be rather more complex, 
but once again I would want to favour and 
encourage individual voting -either by 
postal or workplace ballot, or after properly 
regulated shop floor meetings. 
However , no system of guidelines should 
rule out a proper role for delegate meetings 
and representative gatherings especially 
in the formulation of policy 
options. 

Membership rights 

Finally, the notion of a Code of Practice 
also has a contribution to make when 
considering what Labour should do about 
the second aim of the law in relation to 
union government as specified above-ie 
its role in upholding membership rights. 
Here I would propose the repeal of those 
sections of the 1980 Act dealing with 
"unreasonable exclusion and expulsion" 

40 



and the transfer of all questions involving 
individual membership rights to Industrial 
Tribunals, with a right of appeal to the 
Employment Appeal Tribunal. It seems 
to me that the tripartite and well-
established Industrial Tribunals already 
have a relatively good record in dealing 
with the rights of individual workers 
against the employer in respect of unfair 
dismissal , or discrimination on grounds of 
sex or race. They would seem to be the 
natural bodies to deal with claims by 
workers against trade unions themselves. 

Of course before this could be done the 
Tribunals would need to be provided with 
appropriate legal criteria to govern their 
decisions. I would draw these from the 
more sensible and practical decisions of 
judges when applying the authorisation 
principle and the rules of natural JUStice. I 
would also have regard to the contents of 
the Code of Participation Practice and its 
minimum rule book standards. The Code 
itself would contain guidance on how to 
bring union rules and practices into conformity 
with the new standards. It would 
also tell union members what their rights 
were. 

To summarise all that is proposed in this 
section so far: First, in the place of a rigid 
and limited set of restrictions and liabilities, 
there should be an agreed Code of 
Participative Practice, designed to encourage 
unions to extend and develop 
their ways of involving the majority of 
members in important decisions. Second, 
unions require a complementary and 
balanced framework of parttctpattve 
rights against the employer at the place of 
work , designed to assist unions who agree 
to observe the new Code of Participative 
Practice. Third , a more effective and 
acceptable machinery for protecting the 
rights of union members agamst thetr 
union -especially in areas such as 

discipline, expulsion and the use and 
conduct of elections. 

Political activity 

I turn finally to what needs to be done 
about Part 3 of 1984 ie that part which 
redefined political activity and made it 
necessary for all unions who wanted to 
maintain a political fund to conduct a fresh 
ballot. My own view is simple enough. 
Having denounced this as an unnecessarily 
partisan measure, which imposed unfair 
restrictions on unions that did not apply to 
employers or corporations, 1 am content 
to leave it where it stands on the statute 
book. The fact is that this measure has 
back-fired on the Government. So far all 
unions who wished to do so have secured 
a majority in favour of a ballot for political 
purposes. They have then used it to 
remain affiliated to the Labour Party. 

All I would propose is that a similar 
provision should be enacted by Labour 
which applies to corporate bodies of all 
kinds. Before subscribing to the Conservative 
Party they too should be under a 
similar legal obligation to conduct a ballot 
of their shareholders, to gain the right to 
establish a separate political fund along 
the lines of the 1913 Act. Individual 
shareholders would be entitled to contract 
out. Those who decided not to do so 
would know that their rate of return on 
dividends would be adversely affected. 
Ian Mikardo has long had such a bill in his 
pocket, I consider that one of ~abour's 
first acts should be to mtroduce a btll along 
the lines of Mikardo's measure. I do not 
see how there could be any legitimate 
objection by the Tories, and it would only 
serve them right. 

41 


6. Freedom at Work and 
Community Interests 
So far this pamphlet has been concerned with the re-establishment of 
collective freedom at work. But it would be idle to ignore the fact that all 
forms of freedom can restrict and even damage other interests, including 
those ofthe community as a whole. In the case ofunions it is often claimed 
that their attempt to match the power of employers in the labour market 
results in unjustifiable damage to the commi.mity in two main ways. 
First, by causing, or adding to, the forces of cost-induced inflation, with 
unfortunate consequences for Britain's efficiency, competitiveness and 
level of employment. Second, by interrupting or denying the public 
essential services during prolonged and widespread disputes, producing 
hardship and inconvenience to innocent members of the public. 

Thi pamphlet is not basically concerned 
with what Labour should do about inflation, 
investment, employment or the rate 
of growth. These matters are discussed in 
A New Partnership: A New Britain and 
other policy document . Other writers, 
with various degrees of knowledge and 
ho tility, have written at length about the 
role of trade unions and wage bargaining 
in facilitating, or hindering, economic 
welfare. evertheless, it eem to me that 
at this point it is desirable for me to say a 
word or two about my own attitude to 
these matters. 

Incomes policy 

Without sub cribing to the extreme and ill 
documented exaggerations of free market 
economists like von Hayek or Minford , I 
believe that m the past escalating pay 
\cttlement have contributed to Britain 's 
economic problems. I am also convmced 

that if Labour' plans for sustained growth 
leading to higher employment levels are to 
be carried out, there will be a need for 
what used to be termed some kind of pay 
policy. I also believe that if the electorate 
is not convinced that Neil Kinnock and his 
colleagues are ufficiently aware of the 
dangers of runaway inflation as the level 
of output ri e , they will not be able to 
maximise upport for the kind of program-
me to re tore collective rights which is 
outlined here. 

Yet what follows is in no way a 
blue-print for another experiment in incomes 
policy, designed to fit the circumstances 
of an as yet unknown period of 
Labour rule. It is more a personal and 
brief comment on some of the inevitable 
problem , piu an attempt to draw one or 
two lessons from things that have happened 
since the winter of 1979. 

Three poinh can be made. Fir t, there 
must be no attempt next time to concentrate 
the entire credibility of the policy on 
the attainment of a s1mple, near


42 


universal , norm for pay increases-eg 5 
per cent, 10 per cent or £6 plus 'selffinanced 
productivity pay'. In the case of 
the private sector the varying fortunes of 
companies in different product and labour 
markets since 1979 has made such an 
approach inappropriate. Firms who are 
now doing relatively well, or who face 
some labour shortages, would not observe 
such norms -unless they were fixed at 
levels which would ruin less profitable 
firms , where workers may still face the 
prospect of redundancy, or closure. It 
follows that the next Labour Government 
must be willing to tolerate a continuing 
variation in settlement levels, which will 
be more closely related to so called 
'market factors' than was the case last 
time. What it should seek to avoid is a 
general escalation of earnings, which 
gathers growing force as employment 
expands until it endangers the Government's 
plans for the economy as a whole. 

Second, the problem of pay in the 
public sector will be much more urgent 
and pressing next time. During the last 
three rounds public sector pay increases 
have generally been lower than those in 
the private sector -unless the workers 
involved were favourites of the Prime 
Minister, or blessed with long-standing 
pay formulas. They have also been more 
unevenly distributed. The police, the 
army, the judges and the firemen have all 
done relatively well. Manual workers in 
local government and the NHS, along 
with teachers and social service workers, 
have been relentlessly squeezed. Civil 
servants, nurses and water-workers have 
enjoyed both good years and bad years. 
As a result there has been a massive 
disturbance of traditional differentials 
within a significant but uneven reduction 
in real wages. The danger is that Labour 
will be expected to remedy all these 
defects within months of taking office. 

What it will need before that date will 

be a well-thought out and realistic policy 

for pay thoughout the public service 

sector, agreed at Cabinet level. This will 

almost certainly involve the reintroduction 
of some kind of Comparability 
Commission, to help decide how best 
to distribute the limited sums available 
during the first few years of office. 

Third, as a result of both these developments, 
Labour's Economic Summit will 
need to take a rather different form than 
any established in the past. It should 
mainly focus on providing the material for 
a much more continuous and realistic 

ettlement of how the various indexes of 
economic activity are moving and affecting 
each other. What the Government 
should stress, from the outset, is its 
readiness to adjust its plans to deal with 
any significant departures from target. 
The trouble in the past has been that the 
rigidity of Treasury calculations, plus 
Ministerial reluctance to admit to mistakes, 
has severely inhibited this process 
of adjustment. It has usually been found 
necessary to fix , in some form of financial 
concrete, public expenditure, investn:._;it 
and growth targets for at least a year at a 
time -long before it was possible to 
decide how pay was likely to move, or its 
likely impact on prices. As a result unreal 
assumptions have been allowed to persist 
concerning what could be done to restrain 
or limit pay settlements. In 1979 this led to 
the inevitable collapse of the formal 
targets of incomes policy. It was rigidities 
of this kind, plus Ministerial obduracy at 
the highest level , which paved the way to 
Labour's last 'Winter of Discontent'. 

One advantage of a different and more 
flexible approach should be that next time 
there will be no need for a detailed 
agreement on a given level of pay increase 
to be applied each year across the economy. 
No social contract, or statement of 
intent, to be launched at yet another 
NEDO press conference. All that needs to 
be demonstrated , in action when the time 
comes, is a willingness to respond to 
intiatives and options posed by Govern


ment. 

43 



Strikes in essential services 

On the question of strikes in essential 
services the problem is that at the moment 
of writing it is not known what the present 
Government will propose. There was a 
pledge to introduce legislation on this 
matter in the 1979 Conservative election 
manifesto, and it may well be that a more 
detailed announcement will be made 
sometime next year. But so far the only 
serious discussion of the question from the 
Conservative view is that contained in the 
Prior Green Paper, Trade Union lmmunities. 
This prepared ground for the 1982 
Employment Bill, but nothing was proposed 
in that Bill to curtail the right to 
strike in essential services. Indeed, the 
Green Paper itself was vague and discouraging 
on the subject and tended to 
stress the difficulties involved. 

It is true that the powers taken under 
the 1971 Act to impose statutory cooling-
off periods and a strike ballot were 
discussed at length -including the disastrous 
and isolated attempt to use this 
part of the 1971 Act during the 1972 rail 
dispute. But no attempt was made to draw 
any lessons from this experience. Also 
briefly reviewed was the similarly discouraging 
record of the American Government, 
when using Taft-Hartley provisions 
to impose cooling-off periods and 
compulsory ballots in essential services. It 
was pointed out that trade unionists have 
usually obeyed such orders to return to 
work , but have almost invariably voted for 
a strike after the cooling-off period. As a 
result this part of the Taft-Hartley Act is 
now largely unused. 

After describing the evident " lack of 
success of cooling-off periods" the Green 
Paper went to to consider a number of 
"alternative approaches" -including 
passing laws to make it unlawful for 
certain " key groups" to strike. The only 
examples of this in Britain at the moment 
occur in the armed forces , the police and 
when merchant seamen are at sea. But, as 

the Green Paper says, in each of these 
instances "there are arguments of public 
order, security and safety which make if 
difficult to draw any general lessons from 
other industries". Understandably 
enough the writer of the Green Paper 
concluded: 

"It is possible to argue that the most 
effective way ofmaking progress on this 
question is through voluntary 'no strike' 
agreements between management and 
unions in those sectors of industry 
where strikes threaten the national 
interest" .'" 

This seems to me to be only common 
sense; but it is not difficult to see why the 
suggestion has not been taken any further 
in the last four years. Since Prior's period 
at the Department of Employment the 
climate has hardened against proceeding 
by agreement in matters of this sort. In 
any case a voluntary agreement to avoid 
strikes would have to provide the unions 
involved with an acceptable alternative 
way of resolving outstanding differences. 
There has only ever been one alternative 
on offer -genuinely independent and 
binding arbitration. Since Prior's banish~ 
ment the Thatcher Government has come 
to oppose arbitration in all its forms-not 
least for public service workers employed 
in essential services. The Prime Minister is 
convinced that arbitration is inflationary 
and thinks it represents an abandonment 
of management's responsibilities. 

No strike agreements 

This is an ill-informed and biased judgement 
, with the usual lack of supporting 
evidence. [t seems to me that there is a 
case for taking a lead in the public sector 
to reduce the likelihood of damaging 
strikes, although this need not involve 
legislation. I would like to see Labour take 
the lead in this area. My proposals would 
be four in number. First, the Government 

44 



should offer all trade unions in the public 
service sector the option of an ex parte 
arbitration agreement on pay and conditions 
disputes. This would mean that 
either party could take outstanding disagreements 
to an independent panel of 
neutrals selected by the unions and management. 
Both sides would agree to be 
bound by their decisions. It follows that 
for the period of any such agreement there 
would exist, for the service in question, a 
voluntary 'no strike' agreement. But this 
would be the result of negotiation and 
consent. It would have nothing to do with 
the law. 

Second, for the rest of the public sector, 
eg in the case of the nationalised industries, 
it would be Government policy to 
encourage employers there to offer similar 
facilities to the unions they recognise. 
But this would be a matter for the 
management and unions of each industry; 
no pressure would be placed on them by 
Government. 

Third, in the private sector generally, 
ACAS would be asked to facilitate and 
encourage the development of all types of 
third-party dispute resolution -ie conciliation, 
mediation and even arbitration. 
Once again no pressure would be placed 
on either side of industry to agree to 
formal 'no strike' agreements. Finally, as 
was mentioned above in the section on 
trade union recognition, and as the Donovan 
Commission also proposed, compulsory 
unilateral arbitration would be made 
available " in industries, sections of industry 
or undertakings" where the Government 
believed that it could "contribute to 
the growth or maintenance of collective 
bargaining machinery". In this way, the 
hope would be, both sides come to accept 
that there were often better ways of 
dealing with problems than long and 
protracted strikes. 

7. Summary and Conclusions 
The Prime Minister maintains that there is no workable alternative to 
her policies for economic survival; more cuts in public expenditure, 
further reductions in the size of the public sector and the responsibilities 
of government, the removal of all remaining restrictions and the 
operation of 'market forces'. Attacks on trade unions have always been 
an essential part of her ideology. 

Thus it has become customary to assert, dence, that the legal 'immunities' of 
without any respectable supporting evi-British un ions have been the main cause of 

45 



higher prices, reduced employment and 
the inability of British business to compete. 
In the name of reducing union power 
laws have been passed and action has been 
taken which has already severely restricted 
individual and collective rights at 
work. Already the position in Britain 
compares badly with that which exists in 
most other advanced democracies where 
they have managed to combine 
greater freedom at work with much higher 
standards of living and lower levels of 
unemployment. Yet the Government is 
preparing further attacks. They have not 
yet finished with trade unions or their 
members. 

However, there are signs of a growing 
disillusion with the consequences of the 
Government's obsession with free-market 
economics. It is hard to see what it has 
achieved ; apart from lower levels of 
employment, a reduced manufacturing 
base, an impoverished welfare state and a 
much more unequal society. There is also 
an increasing readiness to consider a more 
complex and less divisive approach. The 
broad outlines of such a policy, based on 
public intervention, public investment 
and a more co-operative approach to both 
sides of industry, has been outlined in 
Labour's recent policy document: A New 
Partnership: A New Britain. Central to its 
approach is a constructive and useful role 
for trade unions and their members. To 
this end Labour is committed to repeal 
'divisive' Tory laws. But it has not, as yet, 
worked out what it will put in their place. 

The central aim of this pamphlet is to 
contribute to the debate which must now 
begin on the shape and content of 
Labour's alternative framework. The 
electorate will want to know the broad 
direction that is proposed. It is also 
essential to gain general agreement within 
the movement and to avoid unproductive 
approaches. 

Collective freedom at work 

The main suggestion advanced is that the 
focus should be on restoring and extending 
freedom at work -including, above 
all, the right to act collectively. But the 
argument should be about the need for 
worker rights, rather than the creation of 
additional 'immunities' for trade unions. 
Four examples were advanced of how the 
restoration of collective freedom might be 
achieved. 

The first concerned the freedom to 
withdraw labour collectively. Here what 
needs to be done is obvious enough. 
Workers must be able to act in concert, 
without the risk of action for breach of 
contract. Once this is ensured unions can 
resume their rightful role as the lawful 
agents of their members, enjoying rights 
no more singular than those accorded to 
unions in other democratic countries. 

The second example chosen concerned 
the freedom to work with trade unionists 
only. The proposal advanced was that the 
broad balance of the common law position 
should be restored. Workers, like employers, 
should be free to refuse to 
co-operate with non-members, where 
they are convinced that this is necessary to 
protect their trading interests. But it does 
not follow that either unions or their 
members should be free to impose a rigid 
closed shop. Trade unions must be prepared 
to be illogical in the interests of 
tolerance. 

The third example related to the right to 
picket. It was decided that there can be no 
justification for limiting the workers' right 
to try to obtain external help, while 
limiting the right of employers to act in a 
similar way. It is also clear, in contemporary 
circumstances, that the right peacefully 
to persuade cannot be effective without 
a limited and controlled 'right to stop 
vehicles'. But nothing should be countenanced 
which is any way intended to 
encourage or licence intimidation. 

The final illustration of collective free


46 



dom at work concerned the right to 
represent and negotiate. It was argued 
that there can be no doubt of the need for 
positive rights in this area. It follows that 
Labour must try harder than last time to 
find effective ways of encouraging union 
growth and the spread of collective bargaining. 
Once again the focus should be 
on adding to worker rights rather than 
trade union opportunities. Some help and 
encouragement should be available whatever 
the level of organisation. Yet the 
degree of help on offer should be graduated, 
and related to the degree of support 
that already exists. There must also be 
adequate powers to prevent employers 
from sabotaging the work of bodies like 
ACAS and the CAC. 

Freedom within trade unions 

All four examples above concern the 
liabilities and rights of workers in relation 
to employers and/or third parties. But 
there is also the question of internal union 
relations and the role of the law in 
protecting freedom within unions. The 
pamphlet argued that if the law is to 
perform a constructive role here it must be 
designed: (a) to improve opportunities for 
the involvement of members in union 
decisions; (b) to safeguard individual 
membership rights. 

Tory legislation fails in both respects 
because it seeks to impose impractical and 
unjustified legal restrictions and does not 
impose complementary obligations on 
employers. What is required is an agreed 
Code of Participative Practice, plus a 
complementary framework of rights 
against employers at the place of work. 
Part 3 of the 1984 Act can be left as it is. It 
needs only to be complemented by similar 
provisions governing political donations 
for corporate bodies. 

Freedom at work and 
community interests 

All forms of freedom may restrict and 
damage other interests, including those of 
the community as a whole. Without 
subscribing to the extreme and unsubstantiated 
exaggeration of the free-market 
economists, it is clear that in the past 
escalating pay settlements have contributed 
to the problem of cost inflation. 
More recently, protracted and bitter disputes 
in essential services have led to 
widespread public inconvenience. 

It follows that Labour should be prepared 
to complement its programme for 
restoring and extending freedom at work 
with policies designed to tackle both these 
problems. 

On the first of these issues three points 
were made. First, the need to get away 
from rigid and near-universal pay norms, 
which are no longer practical or required; 
what needs to be avoided is a rapid and 
general escalation of earnings which rises 
to a point where it endangers plans for the 
economy as a whole. Second, the importance, 
next time, of developing consistent 
and realistic policies for pay in the public 
service sector. Third, the need for government 
to adopt more flexible economic 
targets, which can be adjusted in the li ght 
of pay movements as they emerge. 

On the second it was proposed that 
Labour should encourage the adoption of 
ex parle arbitration agreements. If 
accepted they would amount to no strike 
agreements. But this would be the result 
of negotiation and consent and nothing to 
do with the law. 

47 



Legal proposals 

It seemed worth ending with a short 
summary of the main specific proposals 
advanced for a new framework of labour 
law. They can be best grouped under six 
heads: 

i. Freedom from unfair dismissal and 
discrimination 
The restoration and extension 
of rights against unfair 
dismissal and discrimination 
on grounds of sex or race. 

ii. Freedom to withdraw labour 
* 
Restoration of the 1974 definition 
of a trade dispute. 
* 
Liability for contract breach 
and inducement to breach to 
be confined to action outside 
a trade dispute. 
* 
Restoration of the 1974 protection 
against the selective 
victimisation of strikers. 
* 
Balanced criteria for deciding 
applicants for labour injunctions. 
111. Freedom not to work with non-
unionists 
* 
After an affirmative ballot, 
and with exemptions on 
grounds of religious belief, a 
right to establish trade union 
employment areas in which 
new entrants and existing 
members are offered the 
choice of: 
(a) belonging to a union ; 
(b) paying the equivalent 
of union subscriptions to the 
union as a 'service fee' ; 
(c) paying an equivalent 
sum to a charity of their 
choice. 
iv. Freedom to assemble, communicate 
and persuade 
* 
The publication of a Code of 
Good Picketing Practice, 
providing guidelines to ensure 
and preserve the right to 
peaceful picketing -covering 
the activities of workers, 
picket leaders and the police. 

* 
The right to assemble, communicate 
and attempt to persuade 
in contemplation or 
furtherance of a trade dispute 
at or near an employer's 
premises -including a limited 
right to stop vehicles to 
be administered by the 
police. 
v. Freedom to represent and negotiate 
* 
Where unions are not recognised, 
a right for union representatives 
to raise grievances 
on behalf of members and 
collect union dues at the place 
of work -protected by a 
right of re-instatement if dismissed 
for these activities. 
Where 30 per cent or more of 
workers affected indicate that 
they support such action, and 
the employer refuses to recognise 
the union, a right to 
present wages and conditions 
claims and have them taken 
seriously by the employer. 
* 
Where 50 per cent or more of 
workers affected indicate that 
they support such action, and 
the employer still refuses to 
recognise, a right to present 
claims on wages, conditions 
and other specified issues to a 
form of legally binding 
arbitration. 
Where such arbitration is not 
followed by recognition an 
ultimate right to a punitive 
award. 
* 
The provision of ex parte 
legally binding arbitration 
machinery where it can be 
shown that it will contribute 
to the growth and mainte48 



nance of collective bargaining. 


* 
A requirement that employers 
in low paid areas 
should observe relevant 
negotiated terms and conditions. 
The restoration of fair-wages 
clauses in all Government 
contracts. 
A provision in all Government 
contracts that contractors 
should not refuse to 
recognise appropriate unions 
with members in their employ. 
* 
Recognition criteria which 
encourage the reduction of 
inter-union competition, 
where appropriate, involving 
a 'sieve procedure' operated 
by the TUC 
vi. Freedom within trade unions 
* 
A Code of Participative Practice 
and minimum rule book 
standards with special reference 
to: 
(a) the conduct of elections; 
(b) the involvement of 
members in the formulation 
of policy 
(c) the use of industrial 
action; 
(d) the discipline and/or 
exclusion of members. 
* 
Rights of participation and 
access at the place ofwork for 
all unions which observe the 
Code of Practice, including: 
(a) a right to report back 
and consult members; 
(b) a right to conduct ballots 
and elections; 
(c) a right to hold meetings 
during working hours. 
Membership rights and protection 
against unauthorised 
treatment, absence of natural 
justice and breaches of the 
Code of Participative Practice. 
(To be enforced, in the 
first instance, by Industrial 
Tribunals.) 

An agenda for debate 

It should be stressed that these proposals 
are not advanced in a dogmatic spirit. 
Their author is only too willing to abandon 
one or another of them in the light of 
subsequent criticism. He knows that many 
of them are capable of improvement, 
while others may well be ill-advised. 
Undoubtedly, there are many complex 
and difficult problems that have been 
overlooked. Inevitably, a number of impractical 
and unwise suggestions have 
been proposed. One must expect and 
hope to be corrected with regard to 
matters of this sort when one sets out to 
promote a debate both within and outside 
the labour movement. 

The pamphlet began by recalling the 
arid dogmatism of the Prime Minister, 
which now effects all aspects of her 
economic and industrial policy. Labour 
must not emulate her example, even in its 
understandable reaction to policies 
which are designed to destroy the very 
basis of collective rights at work. On the 
contrary, in this vital area of legislation 
the opponents ofThatcherism will need to 
combine an open mind with a sense of 
direction. New options and possibilities 
must be explored, after which there must 
be a willingness to compromise to produce 
an agreement. All I have sought to 
provide is one possible agenda for th1s 
debate, together with a number of concrete 
suggestions about the conclusiOns 
that might emerge. If the result IS a 
programme which broadly reflects the 
main themes of the pamphlet 1ts author 
will be more than satisfied. 

49 


References 

The Politics oflnduslrial Re/a/ions, 

Fontana, 1979, Chapter 8. 

2 
See, K. Wi lliamset.al., Why are/he 
Brilish Bad a/ Manufacluring? 
Routledge, 1983. 

3 
Unemploymenl and Lhe Unions, 1980s: 
The Distorlion ofRe/alive Wages by 
Monopoly in !he Labour Markel, 
Institute of Economic Affairs, 1980. 

4 
Trade Unions Deslroy a Million Jobs, 
Journal of Economic Affairs, No. 2, 
January 1982, page 76. 

5 
I am, as always, uniquely grateful to 
Lord Wedderburn of Charlton for his 
patience and forebearance in assisting in 
my legal education. 

6 
The New Polilics ofLabour Law, in 
McCarthy, Trade Unions: A Book of 
Readings, (Second Edition), Penguin, 
1985, page 510. 

7 The Syslem of1nduslrial Re/a/ions in 
Crea / Briwin, (Ed.) Flanders and Clegg, 
Blackwells, 1952, Chapter2, page 117. 
8 K. W. Wedderburn, The Worker and 1he 
Law, (First Edition), 1965, see Chapter 

8. 
9 

10 
11 

12 

13 
14 

15 
16 

17 

18 

See the discussion of these and related 
problems in The New Policies in 
lnduslrial Re/a/ions Law by 
Wedderburn. in Fosh and Littler's 

lnduslrial Re/a/ions and the Law in !he 
1980s. Gower, 1985. especially at page 

43. 
Broome v. DPP ( 1974), ICR 84. (H. L. ). 
Ka vanagh V. Hiscock, (1974) , ICR 282, 
D.C. 
V. Craig. Picke1ing and !he Law, 1975. 
SLT (News), pages 137-40. 
TUC Guides, 1979 page 14. 
Code ofPraclice: Pickeling, 
Department of Employment, 1980, 
page 11. 
TUCop.cil. , page 15. 
See the discussion in Labour Law: Texis 
and Malerials by P. Davies and M. 
Freedland, Weidenfield and Nicolson , 
1979, Chapter7. 
See, R. Undy and R. Martin, Ballo1s 
and Trade Union Democracy, 


Blackwell, 1984. 
HMSO, 198J, page82. 



A NEW POCKET SIZED 
PAPERBACK EDITION 
OF THIS LABOUR 
MOVEMENT CLASSIC. 
ESSENTIAL READING 
£3.50 
+ 30p postage 
Fabian Society 
11 Dartmouth Street 
SW1 


edited by
MICHAEL CANNELL 
and 
NORMAN CITRINE 



Full membership : £15 per annum entitles you to receive all 
the pamphlets published by the Society. You have full voting 
rights and can par!icipate in all the Society's activities. 

Pensioners. full time students. apprentices and long term 
unemployed are entitled to half rate membership. 

If you wish to receive the publications and attend seminars 
and schools but are not committed to our basic aims, you can 
become an associate (with no voting rights) at the same cost 
as above. 

Joint membership is offered to couples for the cost of a 
single subscription; you receive one set of literature but two 
voting papers. 

Please complete and return to: Fab1an Soc1ety, 11 Dartmouth Street, 
London SW1H 9BH. Further details from this address or phone 01 


222 8877. 
Please enrol meius as full member(s) 0 
or assoc1ate(s) 0 
receiv1ng all pamphlets (15 LJor C7.50* 

and (if not over 30) make me. us member(s) of the Young Fabian Group: 


Date of birth ........................................................................................ . 
*Half rate: I am an OAP full-time student:apprentice'ilong term 
unemployed (delete as apprionate). 
I will cease full-time stud1es in .......................................................... . 


1/We enclose ( ...... (cheques and postal orders payable to Fabian 
Society) and agree to be bound by the rules of the Society. 
Name .................... 


Address ................... .. ................ 


signed ........................ date .... ....... 



Recent Fabian Pamphets


Tracts 

490 David Downes 
491 David Blunkett, Geoff Green 

492 Keith Ewing 

493 G. Bernard Shaw 

494 Raymond Plant 
495 Bernard Crick 
496 Anthony Wright, John Stewart, 

Nicholas Deakin 
497 earl James 

498 eds . Brian Abei-Smith & 
PeterTownsend 
499 Hugh O'Shaughnessy 

500 Peter Townsend 
501 Denis Healey 
502 Michael Mann 

503 Martin Linton 
504 John Lloyd 
505 David Griffiths & Chris Holmes 
506 Caroline St. John-Brooks 

507 ed. Lisanne Radice 

Special Centenary Publication 

Law and order: theft of an issue 
Building from the bottom: the 
Sheffield experience 
The Conservatives, trade unions 
and political funding 

The Fabian Society: its early history 
(reprinted with a preface by 
Melvyn Bragg) 

Equality, markets and the State 
Socialist values and time 
Socialism and decentralisation 

Occupational pensions: the failure 
of private welfare 
Social security: the real agenda 

Towards a democratic Central 

America 
Why are the many poor? 
Labour and a world society 
Socialism can survive: social 

change and the Labour Party 
The Swedish road to socialism 
Understanding the miners ' strike 
A new housing policy for Labour 
Who controls training?: the rise of 

the Manpower Services Commission 
Winning women's votes 

£1 .50 
£1 .50 
£1 .50 
£1 .50 

£1 .50 
£1 .50 
£1 .50 

£1 .50 

£1 .50 

£1.50 

£1.50 
£1 .50 
£1 .50 

£1 .50 
£2 .00 
£1 .50 
£1 .50 

£1 .50 

100 Years of Fabian Socialism £2 .50 

Books available from the Fabian Society 

ed. Richard Silburn 
Patricia Pugh 

ed . Ben Pimlott 

ed . Howard Glennerster 
eds . M. Cannell & N. Citrine 

J.P.M. Millar 
The Future of Social Security 

(Fabian Society, 1985) 

Educate , Agitate , Organize100 
years of Fabian Socialism 

(Methuen, 1984) 

Fabian Essays in Socialist 
Thought 

(Gower, 1984) 

The Future of the Welfare State 

(Heinemann, 1983) 

Citrine 's ABC of Chairmanship 

(NCLC, 1982) 

The Labour College Movement 

£2 .95 

£19 .50 

cased 
£19 .50 
paper 
£8 .50 
paper 
£5 .95 
paper 
£3.50 
cased 
£5 .50 

Postage: books 50p per title (ABC of Chairmanship 30p) , The Future of Social Security and 
pamptilets post-free .