FIGHTING ANTI-UNION LAWS - TRADE UNIONS HAVE A CHOICE

(This article is based on a speech made by Arthur Scargill to the National Executive Committee of the Prison Officers’ Association on 17 October, 2007)

In Britain, the trade union Movement has long struggled against a malaise that can only be described as a ‘collaborationist tendency’. This tendency is most obvious in the Movement’s failure to deal with Britain’s oppressive anti-trade union laws.

Despite the sharpening economic and political crisis within our society, collusion has now reached a point where the Trades Union Congress and many union leaderships, not seen as fighting heart and soul for workers’ rights, are increasingly considered irrelevant by the British people.

The oppressive nature of Britain’s anti-union laws depends on this collusion. Therefore, any serious discussion about challenging the legislation must also examine forms of serious resistance to it.

An analysis that places itself within the boundaries of these laws and does not consider a strategy for confronting them is futile.

Let’s start by looking at our own past. Contrast the British trade union Movement’s reactions today with the way organised workers confronted anti-union laws and anti-union employers in the 1970s and 80s.


Study the great campaign against the Tories’ Industrial Relations Act in 1971; the miners’ strike of 1972, followed by the dockers’ strike, the imprisonment and then the triumphant release, through workers’ direct action, of the Pentonville Five, and the building workers’ strike of the same period. In 1974 came another miners’ strike – which led to the defeat of a Tory Government.

The determination of workers that created conditions for opposing the 1971 Industrial Relations Act fuelled, in turn, the outburst of subsequent action. And, since we’re discussing the law, remember that in the summer of 1972, it was mass unofficial action which forced the State to free the Pentonville Five.

The miners’ strike earlier that year had been a turning point, sparking support from thousands of other workers. This terrified not only the Tory Government of the day but scared the living daylights out of right-wing leaders within the Labour Party, the TUC and a number of trade unions.

In 1972, just as today, leading figures in our Movement were warning: ‘Don’t break the law!’. It’s an old theme, used many times against workers in the past such as in the 1921 miners’ strike, the General Strike of 1926 and other major disputes.

I certainly heard that warning in the miners’ strike of 1972, when I was deeply involved in mass picketing, especially at Birmingham’s Saltley Gates, a historic battle which proved what workers’ solidarity could do.

It is often forgotten (perhaps no longer widely known) that national leaders of major trade unions, including the engineers’ AUEW and the transport workers’ TGWU, refused to sanction their members’ taking secondary action in support of the NUM at Saltley.

However, AUEW and TGWU members in the West Midlands – having listened to the miners’ plea for solidarity - did with the backing of regional leaderships take action. So did workers in other unions, and by supporting the NUM at Saltley achieved a victory that rocked the entire British Establishment.

Two years later, the 1974 miners’ strike led to the downfall of Edward Heath’s Tory Government, a victory for working people that should have seen Britain’s Labour Movement focussing firmly on Socialist aims.

That didn’t happen. Instead we had the Social Contract, in which a Labour Government held down workers’ wages, with five years of unprincipled compromise by the TUC and union leaderships paving the way for the Tories’ return in 1979.

This betrayal didn’t come out of the blue. Even amidst the industrial victories of the early 70s there had been a shadow of things to come. In the aftermath of the historic building workers’ strike of 1972, our Movement had failed to prevent the jailing of the Shrewsbury Three on trumped-up charges of ‘conspiracy’.

Then, during the years of the Labour Government, the Grunwick workers, battling for basic rights and recognition in 1977/78, were also abandoned by their own union and by the TUC.

Shrewsbury and Grunwick taught many of us (and should have taught us all) two lessons. First, through their courage and class commitment, the workers in both struggles provided an example that inspires us still. Second, their fate offered clear evidence that workers in struggle can only be protected by a trade union fightback.


By abandoning the Shrewsbury Three and the Grunwick workers, elements within the British trade union movement were, alongside their collusion over the Social Contract, laying further track for Margaret Thatcher’s advance.

The struggles of the 70s alarmed the Tories to such an extent that well before they won the 1979 General Election they had planned a programme of draconian anti-union laws – specifically aimed at preventing another Saltley or any similar action taking place on a national scale.

Yet even after the Tories returned to power in 1979, events continued to prove that oppressive legislation – backed by the courts - isn’t enough on its own to keep workers down. Oppression depends to a very great extent on submission.

As anti-union legislation became more oppressive through the 80s and into the 90s, the TUC and trade union leaders increasingly refrained from giving, or refused to give, effective assistance to workers in struggle. Instead of spear-heading resistance to these vicious laws, the TUC argued that the only course of action was to wait and work for the election of a Labour Government which, it claimed, would repeal the legislation.

Of course, New Labour did nothing of the sort – and since 1997 the trade union Movement has continued to submit to even further legal measures brought in by the Tony Blair/Gordon Brown axis. Over the past decade, the TUC not only opposed calls from the NUM and Bakers’ Union to defy anti-union laws, but has actually advised unions on compliance.

Nevertheless, fairly recent history reveals that for trade unionists there is an alternative to this collusion.

FIGHTING BACK

In 1981, the NUM’s (then) Right-wing national leadership was forced to support unofficial strike action against pit closures – without a ballot – because our ferocious coalfield campaigning was too strong to resist. Faced with wildfire strike action, the Thatcher Government – taken unawares – had to make what the press labelled a ‘U-turn’ and, for the time being, stop its pit closure programme.

The key industrial disputes over the years since occurred because trade unionists were prepared to fight for basic rights against employers who had the full backing of the State and the courts. Had these disputes, in turn, had full and effective backing from the TUC and the trade union Movement, Britain today would be a better place in which to live.

Among these struggles, all of which are important, were the miners’ strike of 1984/85 and the two epic battles for trade union rights and recognition by Britain’s printworkers: in 1983 at Warrington against would-be newspaper magnate Eddie Shah, and, from January, 1986, the year-long fight against Rupert Murdoch at Wapping.

In the historic miners’ strike of 1984/85, one of the greatest clashes ever seen between workers and the State occurred at British Steel’s coke plant at Orgreave, South Yorkshire, in the Summer of 1984.

The police (together with members of the armed forces in police uniform) used paramilitary tactics; armed with shields, batons, dogs and horses, they fought to prevent a repetition of Saltley in 1972. Some 10,000 pickets faced 8,200 paramilitary-style police under orders that Orgreave should be open to produce and transport coke, no matter what the cost.

Yet in spite of this organised State force, the miners’ pickets, supported by trades councils and rank-and-file members of other unions, forced Orgreave’s management to suspend operations on 18 June, 1984 – just as they had done in Birmingham on 6 February, 1972, prior to finally closing Saltley four days later, on 10 February.

However (unlike the Tories), the Labour and trade union Movement including sadly elements within the NUM Area leaderships had not taken to heart the true lessons of Saltley.

Although Orgreave was closed by pickets on 18 June, those pickets were called off by NUM Area leaders the following day, thus allowing British Steel to recommence operations.

That this could happen was due to the NUM’s federal structure – ours was not and is not one Union but a federation of autonomous organisations - which helps to explain other events during that strike.

Afterwards, critics within and outside the Labour Movement argued that the battle of Orgreave highlighted the ‘failure’ of mass picketing. They were completely wrong.

What occurred at Orgreave was a failure to mass picket – calling people off after an initial breakthrough, instead of intensifying pressure until the plant’s operations were brought to a conclusive halt.

Responsibility for this also rests with leaderships in the wider trade union Movement which held back their own members from coming to the assistance of the miners as workers in Birmingham had done in February, 1972.

Lack of support from others can lead to a paralysing fear of isolation in the hearts of those in struggle, and can have profound consequences for any dispute.

THINKING BEHND THE LAW

Fear is a tool wielded against trade unions today by Britain’s Labour Government which like the Tories supports the Free Market and globalisation. Using the so-called ‘free’ movement of capital, company operations and human labour, while implementing further privatisation for maximum profit – all this depends on high unemployment and low wages. These conditions require submissive workers. The purpose of anti-union legislation is to sustain these conditions.

The ‘employment’ laws introduced since the advent of Margaret Thatcher in 1979 – and implemented by Tories and Labour ever since – are in part based on the Taft-Hartley Act introduced in the United States in 1948. This iniquitous Act was a key component in Cold War politics.

Its main elements were (1) the banning of mass picketing in industrial disputes; (2) the banning of secondary boycotts and sympathy strikes; (3) making trade unions legally liable for any strikes by their members not within the bounds of a written contract, and (4) giving the government the right to seek injunctions preventing strikes deemed to be against the ‘national interest’ – an all-embracing concept which effectively gave the government of the United States the right to ban strike action.

Even more stringent reforms were called for by a Right-wing pressure group known as ‘The Right to Work’. Its equivalent in Britain was ‘The Freedom Association’.

Many trade unionists will remember or be aware of the role played by the Freedom Association in the Grunwick dispute of 1977/78. It actively supported the owner of a North London film processing plant against his employees who sought decent working conditions and wanted their rights to trade union membership and recognition.

Without effective, practical support from the trade union Movement, the Grunwick workers could not prevail. There is a terrible irony in the fact that, at that time, giving effective solidarity would not have meant unions ‘breaking the law’.

Section 13 of the 1974 Trade Union and Labour Relations Act provided protection in line with the United Nations Declaration of Human Rights. That protection was subsequently lost. Those who were already drafting anti-union laws for the next Tory Government took heart from the way the hierarchy of the trade union Movement abandoned the women and men at Grunwick.


Today, if a trade union ‘induces’ workers to take industrial action in breach of the Trade Union and Labour Relations (Consolidation) Act, 1992, those involved are immediately in breach of their contract of employment and in breach of the law.

NO RIGHT TO STRIKE IN BRITAIN

In Britain, there is no ‘right to strike’. Strike action can only be taken here provided members of a trade union accept and comply with the web of restrictions laid down by anti-union laws.

A strike can only be called provided a trade union holds a postal ballot, and that can only take place within constraints which resemble an obstacle course unparalleled in the Western world.

A union balloting its members must make clear on the ballot paper that if members vote in favour of strike action they may be in breach of their contract of employment – i.e., they do not have a right to strike.

In the event that workers do vote in favour of strike action, that action is only legally effective for eight weeks – the legislation then requires a union to hold a further ballot.

Alongside this, the legislation contains two important clauses which further undermine a trade union no matter how compliant it is prepared to be:

The law makes clear that any worker can refuse to belong to a trade union.


The law will protect from disciplinary action union members who continue to work during a strike – even though that strike has been called in full compliance with legislation.

A VIOLATION OF INTERNATIONAL LAW

The anti-union legislation introduced by the Tories after 1979, maintained and expanded since 1997 by the Labour Government, is in direct conflict with the United Nations Charter, and a clear violation of the International Labour Organisation (ILO) Conventions 87 and 98.

The UN Charter and ILO Conventions make clear that trade union rights are human rights and must not be subject to outside interference from government. Trade unions have the right to draw up their own constitutions and rule books, free from interference.

The British Government is indeed a signatory to both the UN Charter and ILO Conventions, yet, like the Tories, Labour ignores international law – just as it did when invading Iraq.

The British Government is determined to prevent workers from organising, taking industrial action in support of their own wages and conditions or taking solidarity action to support other workers.

AN EMPLOYER’S CHARTER

On the other hand, a British employer – or employer with a British base — is free to close down a plant, factory, or office, as we’ve seen increasingly over recent years with a widespread transfer of operations to Poland, Burma, India or China. Thousands of workers in Britain have thus lost their jobs, yet no action can be taken against bosses whose hunger for greater profit robs workers, their families, communities and regional economies.

I’ve already described the forces deployed to keep open the Orgreave plant in South Yorkshire during the miners’ strike of 1984/85. A few years after the strike, British Steel announced that Orgreave was to be closed. Upon hearing the news, I immediately telephoned the police, asking them to come straightaway and stop those who were forcing the plant to shut. To my surprise, I was told it had nothing to do with the forces of law and order.

I reminded South Yorkshire Police that this reaction contrasted sharply with the deployment of over 8,000 riot police in the summer of 1984 when the NUM was seeking to only temporarily close the plant. Now that British Steel intended to shut it for good, there was not one single police officer to be seen.

Employers’ impunity is clearly very different from the consequences facing a trade union which takes action to prevent closures and job losses.

As I know from personal experience, such a union and its officials can be taken to court; its assets can be frozen by an order of sequestration – and, as happened without precedent to the National Union of Mineworkers in 1984, its entire operation can be put into the hands of a Receiver.


The NUM was taken to court through a variety of legal routes, when the legislation was not as comprehensive as it later became. The State set out to destroy us if possible; the NUM’s response should have been used by the entire trade union Movement as a template for industrial relations strategy.


SEQUESTRATION

The threat of sequestration has become a handy tool for courts in ruling that a trade union is acting contrary to ‘employment’ legislation. The possible appointment of a sequestrator terrifies most trade union leaders, primarily because sequestration means that a union’s assets will be frozen, no expenses will be available, officials’ cars will be taken away and any accommodation including a union’s offices can be occupied by the sequestrator.

However, I can tell you from experience that provided a trade union is prepared to confront the law while dealing with the consequences of so doing, sequestration can be rendered ineffectual.

There is nothing, for example, to prevent third parties paying all the bills of a trade union during a period of sequestration. And at the end of a dispute, when a sequestrator has been discharged, there is nothing to prevent that trade union making donations to all organisations, including other unions, which have paid bills on its behalf.

It has been done.


RECEIVERSHIP

Receivership is something else – far more vicious than sequestration. Ironically, the appointment of a receiver to take over an independent trade union was not possible prior to 1974, when lawyers drawing up employment legislation for the newly-elected Labour Government omitted, in error, provision for immunity from receivership for trade unions.

Only once have the courts appointed a receiver to take over a trade union: in November, 1984, in the miners’ strike. The NUM had already been put in sequestration, but for the British State that wasn’t enough.

Receivership is about more than freezing assets. It is about taking control of an organisation. It is a replacement. In the case of the NUM, the Receiver’s purpose was to become to all intents and purposes ‘the union’.

PRINCIPLES OF RESISTANCE

The principles behind the NUM’s strategies in 1984/85 were articulated in a paper written (in December, 1988) by leading trade union barrister John Hendy QC, who referred to this quote from the great lawyer and human rights campaigner, D. N. Pritt QC:

‘The state of the law in a capitalist society is a reflection of the ability of the working class to organise against it. The law reflects the balance, at any moment of time, between the power of capitalism and the organised power of labour’.

John Hendy QC went on to write (and it is worth quoting him at some length): ‘It follows therefore that only resistance can hold the line against further depredations and only pressure can advance and improve the position. Concessions and capitulation will only encourage further legal and ideological attack. Indeed, mere lack of resistance encourages further attack’.

He wrote: ‘The law itself may be difficult to understand but the fact of its unfairness and injustice is not so difficult to explain and understand….It is necessary to draw on our own rich history of resistance to unjust laws. The Cambridge tailors in 1725; the Tolpuddle Martyrs in 1824; the freeing of the Betteshanger miners’ leaders imprisoned after the prosecution of 1,000 for going on strike in 1941; the freeing of the Pentonville Dockers in 1972; the struggle against the Industrial Relations Act from 1970 – 1974 and the ability of the National Union of Mineworkers to continue their strike unabated for one year in 1984-5, in spite of being sequestrated, being in receivership, having some 40 injunctions against them and over 10,000 of their members prosecuted – all those are powerful examples without even looking overseas.

‘….Unquestioning acceptance of the “rule of law” and the subject of compliance with unjust laws need to be debated within the Movement and for this debate, history and jurisprudence must play their part.

‘…Sir Thomas More was executed for refusing to accept the Act of Supremacy…[while] the Nuremburg Trials accepted that there were higher principles which men are under a duty to conform to than the law.’

PRINCIPLES IN ACTION

In October 1984, the NUM was found guilty of contempt of court, as was its President. The only way to purge ones contempt is to beg the court to accept an apology, throw oneself upon the court’s mercy – and pay the fine.

As NUM President, I refused to apologise, nor would I pay any court-imposed fine, although some mystery figure paid it without my authority on my behalf. No mystery figure, though, could by proxy purge my ‘contempt’, and I remain in contempt to this day.

More important, the National Union of Mineworkers managed to endure the imposition of a receiver from November 1984 until July 1986.

Today, over 20 years later, I have nothing but contempt for all who construct and seek to enforce anti-trade union legislation; I have nothing but contempt for court orders that seek to impose unjust laws upon trade unions.

I am one trade union leader who defied the law and continued to defy it until the day I retired as President of the NUM.

STRUGGLE DEMANDS SOLIDARITY

I must stress that, under attack from sequestration and receivership, the NUM had vital support from a number of trade unions. However, I believe that our struggle, waged on behalf of not only the miners but all workers, demanded that support.


We should have had it from the TUC. Imagine what would have happened in our great strike or in any other key trade union battle of the past 25 years if all trade unions together with the TUC had been prepared first to adopt policies of non-compliance with unjust laws – and then to defy those laws if the State threatened to use them.

Any British trade union leader taking such a stance would be following in the footsteps of the Tolpuddle Martyrs, the Suffragettes, Mahatma Ghandi, Nelson Mandela and all the brave men and women whose courage in the face of oppressive legislation should inspire us to act.

The State and its laws can indeed sequester your car, your office, your home – but they cannot sequestrate your mind or your faith: that is your power and their weakness.

Such power, however, is inter-dependent on collective action. And what are trade unionists and their unions to do today, given that the TUC complies with laws that prohibit effective action?


AN ALTERNATIVE ORGANISATION

In order to challenge the ongoing destruction of jobs, basic and manufacturing industry; in order to challenge low wages and poor conditions; in order to establish or re-establish decent standards of health and safety – and for many other reasons, I suggest that we need to establish an alternative to the TUC.

We need a national trade union centre capable of defiance and willing to defy unjust laws that have been crafted to cripple trade unions; a centre prepared to give assistance – including industrial action - when necessary to workers in dispute.

To be effective, such an alternative centre would have to be firmly committed to Socialist policies, calling unequivocally for the abolition of capitalism which oppresses workers around the world and here at home.

Exploitation, poverty and ignorance can only be eradicated through common and social ownership and control of the means of production, distribution and exchange.

Of course, serious discussion about such an alternative requires a fundamental shift within Britain’s trade unions. One way to begin this shift is for unions to affiliate to the Socialist Labour Party: unequivocally Socialist, unequivocally committed to fighting against anti-union laws.

Refusal to comply with repressive, unjust anti-union laws that violate the UN Charter is in the best traditions of the British trade union Movement. On the other hand, compliance with and submission to these laws inevitably lead to defeat and despair.

Trade unionism was built out of workers’ demands for decent wages and conditions, and out of an anger against exploitation that springs from the needs of the human spirit. I, for one, would rather defy oppression and be proud, than comply with it and be ashamed. Trade unions have a choice.

Ends