It is not enough to call for abolition of anti-union laws
Capitalism and the rule of law are incompatible with political democracy and free association, writes Mike Macnair
On Thursday April 1 Justice Victoria Sharp issued an injunction against the intended strike of RMT signal workers, on the basis that there were technical irregularities. The union immediately announced that it would reballot.
Such technical irregularities can, of course, be found in any ballot - and will no doubt be found in the coming general election. Even though the margin of the vote was narrow, neither Railtrack management nor the judge can genuinely believe that the signal workers have ‘not really’ voted for strike action. The use of the courts in this way is a tactical manoeuvre by the employers. The union is to be allowed to strike only at a time of management’s choosing, with a view to minimising its effectiveness.
The demand for the abolition of the various anti-union laws introduced since the beginning of the Thatcher government is common ground across the left and the trade union movement - though not, of course, including New Labour. Standard left commentary can be found in the Morning Star for Friday April 2, or on the Socialist Worker website (April 3). Ex- Socialist Workers Party and Scottish Socialist Party member Gregor Gall managed to get an article into The Guardian on April 2 criticising the law and arguing for a “positive right to strike”. One website produced claims allegedly linking the judge’s family to Goldman Sachs and the Conservative Party.
Communists agree without hesitation or reservations with the demand to get rid of the post-1979 anti-union laws. In fact, we would go further. It is a matter of getting the courts wholly out of the internal affairs of the unions and out of the industrial relations business. That is not a matter of a positive legal right to strike, as Gregor Gall argues. It is a matter of demolishing the ‘common law’ foundations of judicial action against strikes.
The reason for doing this is not just because of the sectional interest of trade unionists. Rather in this area the sectional interest of trade unionists is at one with the common interest of the society as a whole in freedom of association and collective action. The interests of the proletariat are at one with the interests of humanity. Various authors and politicians have recently complained of our ‘broken society’ or loss of ‘civil society’; most recently, Tony Judt on the social democratic left and ‘red Tory’ Phillip Blond on the right. The phenomenon is real. But it is not - as both Judt and Blond in different ways claim - a matter of ideas and culture. It is a matter of state, and in particular judicial, intervention since the 1970s against freedom of association and of collective action.
A trade union is an organisation of workers for purposes of solidarity. These purposes include collective negotiation with the employers on wages and conditions. These are not the only purposes of trade unions. Unions have historically been involved in wider forms of mutual aid (unemployment and sickness insurance, and pensions arrangements) and in hiring (the work currently done by state job centres and private employment agencies), in workers’ education, and in mobilisation and lobbying for political purposes shared by their members. But collective negotiation with the employers on wages and conditions has been since the introduction of the ‘welfare state’ in 1945 the most salient purpose of trade unions.
In this negotiation the employers have several options alternative to a negotiated solution. They can ‘lock out’ the workers (not commonly used in the recent past); they can impose changes unilaterally; or they can close down and move the business elsewhere. They have complete freedom to choose the time at which they act, how they decide, and how much of their decision-making process they disclose. Within the framework of the principles of capitalist bargaining, the workers’ only real card is strike action; lesser forms of industrial action like go-slow, work to rule, etc, are merely mitigated forms of a strike.
Beyond the framework of capitalist bargaining, either side may and commonly does appeal for political support from the state or broader forces; capitalists may (and, outside western Europe, occasionally do) make private arrangements for assassinations and terrorism against trade unionists or striking workers; and the workers, on the other hand, may interfere directly with the employer’s property rights in the means of production (factory occupations, and so on). But these sorts of action are precisely beyond the frame of ‘normal’ bargaining.
In spite of the common ideological pretence of pure free-market individualism, capitalists also enter into collective organisations to defend their interests in bargaining both with workers and with other contracting parties. The Confederation of British Industry, the employers’ general lobby organisation, is the most prominent. But a wide variety of trade associations promote standard contract terms, arbitration arrangements, etc, employers’ associations maintain blacklists of trade union activists, and so on.
Capitalists also associate in the form of the business corporations. Their development began with firms which needed to raise very large amounts of capital or which needed or wanted monopolies (18th century insurance companies and so on) or compulsory purchase powers (railways). This became widespread in the late 19th century and early 20th century at the same time as the growth of cartels (agreements between capitalists to mitigate competition). The law pretends that the business corporation is an individual (and even one that can have ‘human rights’). The reality is that it is a form of cartel.
Cartels are technically illegal under European Union law. But this technical illegality is contrary to ‘common law’: in the early 19th century, when trade unions were unambiguously illegal, cartels were perfectly legal. As late as Mogul Steamship v McGregor, Gow (1892) the courts held that, though an anti-competitive cartel was ‘unlawful’, its victims - businesses squeezed out by the cartel - had no right to sue. Because ‘competition law’ is legislation contrary to the underlying principles of ‘common law’, it is restrictively construed and relatively toothless in operation (though it makes plenty of money for lawyers).
The anti-union laws therefore involve double standards. There is no suggestion that the employer is obliged to ballot all its shareholders before changing the contract terms affecting its workers; still less that irregularities in the ballot should allow a court to enjoin the employer against proceeding without a fresh ballot. The employers control the timing of their action and how they decide. The unions are barred from doing so without the consent of the employers’ lawyers.
Behind these double standards is the underlying history: trade unions are in ‘common law’ illegal. This illegality has a remote statutory origin: the Ordinance (1349) and Statute (1351) of Labourers made it a crime to demand, or to pay, wages above maximums fixed by local (landlord) magistrates; the Confederacies of Masons Act 1434 outlawed proto-unions of building workers which attempted to raise wages. The 18th century saw an elaborate law of ‘combinations’ criminalising workers’ organisations.Under the Statute of Labourers employers were made liable for enticing away others’ employees by offering higher wages. Abruptly extended in the 19th century, this rule became the kernel of the ‘common law’ tort (civil wrong) of ‘inducing breach of contract’.
Trade Unions were ‘legalised’ by the Trade Union Act 1871, Conspiracy and Protection of Property Act 1875 and Employers and Workmen Act 1875. But they remained ‘unlawful’ and tortious at common law, merely protected from criminal prosecution. Further statutory protection was required in the Trade Disputes Act 1906. In 1927 the Tories brought in anti-union laws (Trade Union and Trade Disputes Act 1927) which were repealed by the 1945 Labour government. By the 1960s, however, the courts were beginning to invent or rediscover forms of tort liability which (they said) were outside the protection of the Trade Disputes Act: the leading case was Rookes v Barnard (1964), which invented ‘intimidation’ as a tort trade unions could commit by threats to strike in breach of contract. Further ‘discoveries’ of ‘loopholes’ in the 1906 act rapidly followed.
The class bias of the Ordinance and Statute of Labourers, the Confederacies of Masons Act and the Combination Acts is transparent. The class bias of the modern anti-union laws hides behind the lawyers’ double-standards claim that the legal history makes trade unions unlawful in ‘common law’. Because cartels are not unlawful in ‘common law’, competition law is to be narrowly and restrictively construed - without this being, m’lud, in any way evidence of judicial bias in favour of business cartels and corporations. Because trade unions are unlawful in ‘common law’ and only legalised by statute, the statutes which legalise trade unions are to be narrowly and restrictively construed - without this being, m’lud, in any way evidence of judicial bias against trade unions. There is no need for Sharp’s family connections to have had any influence at all on her decision in the RMT case: the judicial bias involved is systemic, institutional bias of the legal profession and hence of the judiciary as such.
It is for this reason that Gregor Gall’s suggestion of introducing a positive ‘right to strike’ would be an illusory reform. Like all existing half-legalisation of trade unions without striking at the ‘common law’ root, it would be construed restrictively by judge and co - until we wound up somewhere like where we are now. Worse: it still works within the frame of the juridified politics and ‘right-talk’ which, as we shall see, is one of the main problems of current politics. What is called for is the thorough-going abolition of the anti-union laws all the way back to their common-law roots.
The double standards at work disclose a systemic bias of the legal profession and of its leaders in the judiciary in favour of business and against trade unions. The fact that they call this ‘common law’ in no way alters the matter. ‘Common law’ is nothing more than the historical continuity of the ideas of the legal profession, as they have developed over the last eight centuries.
This bias involves truly breathtaking hypocrisy. The Law Society is politely not called a trade union or a cartel, and neither are the Inns of Court or the General Council of the Bar. In reality all these organisations are guild corporate monopolies: ‘trade unions’ which have a pre-entry closed shop in operation. The monopolies are protected by statute law - unsurprisingly, given the number of lawyers there are, and historically have been, in parliaments and cabinets. Indeed, when Blair and co proposed to abolish the office of lord chancellor, the lawyers claimed they had a constitutional right to have one of the leaders of the profession as a cabinet minister charged with protecting their ‘independence’: and in sections 2 and 3 of the Constitutional Reform Act 2005 they got more or less what they had demanded. By using their statutory monopolies to impose an apprenticeship requirement for qualification, the lawyers ration the numbers of new entrants and protect themselves from competition.
Among other results of these operations is the astronomical cost of certain sorts of litigation, especially defamation. This is recognised even by defenders of the system to be objectionable and to have a ‘chilling effect’ on freedom of speech. The result in practice is that Elizabeth II through her lawyers’ monopolies (her judges, her ‘queen’s counsel’ and so on) in average outcomes sells justice to the highest bidder, delays it to all, and denies it to the poor, contrary to Magna Carta 1215, chapter 40.
The lawyers’ trade unions operate a pre-entry closed shop, whose results in the scale of legal fees are obviously opposed to the interests of the justice the courts purport to provide. And yet these hypocrites have the gall to maintain that other people’s trade unions involve unlawfulness in (the lawyers’) ‘common law’. Why?
The lawyers’ astonishing ability to see the finest of motes in other trade unionists’ eyes without noticing the enormous beams in their own is an ideological blindness required by a dirty secret of the British constitution, which is simultaneously obvious if the ideological blinkers are taken off, and too fundamental to be openly spoken. The ‘rule of law’ and the so-called ‘free market’ in legal services - in reality the lawyers’ guild-corporate monopolies - are one of the core elements of the dictatorship of the bourgeoisie (the state rule of the capitalist class, or plutocracy).
At the most basic level the practice of law and judicial decision-making itself has at its core the sanctity of private property. It is only to the extent that interests can be analogised to private property that they become ‘justiciable’ - capable of being decided in court. To extend law beyond private property rights to land and so on, it is necessary to make other interests like private property rights. But the sanctity of property and debt claims remains at the core of the social practice of law. The rule of law therefore means the subordination of the state and political democracy to the rights of property owners and creditors.
At the more immediate level, lawyers represent their clients; ‘successful’ lawyers are those who are in demand from businesses and the state; and lawyers continue to represent their better-paying clients as a class when they are MPs, and when they are judges. What successful lawyers, eligible to be appointed as senior judges, do in practice is to pursue the interests of their paying clients without any ethical restraint. Through this mechanism, on average ‘deep pockets wins’ and justice is sold to clients in proportion to the legal fees they spend. Lawyers are in fact skimming the collective till and helping their most lucrative clients to do so; like bank bosses and - on a smaller scale - thieving shop managers.
To justify this conduct to themselves, lawyers have to believe in the law’s internal values and be blind to the practical effects of their conduct: that justice is sold, delayed and denied. A psychological self-defence mechanism is involved; just as the bank bosses have to believe their individual ‘financial genius’ is ‘worth’ their inflated ‘executive compensation’ and the thieving shop manager has to believe that he or she is a special case or is merely ‘borrowing’ from the till. When they move from practice into politics, or are appointed as judges, the lawyers inevitably continue to maintain the ideological blind spots and psychological self-defence mechanisms they learnt in training and practice. By doing so they continue to serve their high-paying clients. When Stephen Byers told Channel 4’s sting operation he was a ‘cab for hire,’ the obvious echo of the barristers’ ‘cab rank rule’ was a Freudian slip (no doubt something to do with Byers’ past as a law lecturer): the common law and corruption march hand in hand.
Lawyers on average represent their best-paying clients; ‘common law’ is no more than the collective view of the lawyers, as it has evolved over time; the ‘rule of law’ is a central element in the dictatorship of the bourgeoisie. For precisely these reasons, the ‘rule of law’ and the extension of judicial power is antithetical to political democracy, freedom of association, and the life of voluntary associations in general. The question is, who makes the decisions? The ‘rule of law’ means that judges make the decisions - and they do so, on average, in the interests of plutocrats and of governments. But the point of forming and joining voluntary associations - not just trade unions, but all sorts of voluntary associations - is to participate in social decision-making, to take some small degree of social power away from bosses, landlords and bureaucrats.
Some academic lawyers have been willing to recognise these implications. The classic argument is the ‘political constitutionalism’ of JAG Griffith, who also wrote one of the most trenchant critiques of the normal biases of the English judiciary. More recently - for example - Ran Hirschl has shown by a comparative study of Canada, South Africa and Israel that entrenched constitutions and judicial review serve to protect the interests of class-elite groups against political challenge, and Adam Tomkins has written a systematic polemic counterposing political accountability to judicial review.
Voluntary associations and the ‘civil society’ of which they are conventionally taken to be part have been rising in academic and journalistic visibility, and are a significant issue in the current general election. After all, David Cameron claims that he will restore ‘civil society’ by giving welfare and education functions back from the state to voluntary associations. And this idea was already part of the Blairite ‘third way’: part of the motherhood and apple pie to which all modern politicians must put up their hands.
What Cameron means in reality is merely that the Tories will privatise schools, hospitals, etc, where they can be made profitable with state subsidy, or give them to the churches where they cannot. If these plans succeed, the result will create the conditions for decades of Irish-style church child abuse scandals in England’s future and for religious sectarian violence two or three generations down the line.
The decline over the last 40-odd years of ‘civil society’ - that is, of ordinary people’s participation in voluntary associations - is nonetheless real. Churches, trade unions, political parties ... all sorts of associations have seen sharp declines in membership and in activists. The practical effect is a reduced availability of people making their own lives, as opposed to choosing as passive consumers between what is on offer from this or that advertiser, retailer or politician.
Two recent books argue that the phenomenon is closely connected to larger social ills and amounts to a demoralisation of society. Tony Judt’s Ill fares the land is written as - in substance - a call to arms to revive the basic ideas of the old social democracy. Phillip Blond’s Red Tory advocates a ‘left’ interpretation of ‘Cameronism’ on the basis of a ‘distributist’ reading of Toryism, drawing on Chesterton and on the ‘property-owning democracy’ idea, and advocating ‘recapitalising the poor’ through a variety of techniques.
In spite of their fundamental political differences, both Judt and Blond share a common devil. For both of them the liberalism/libertarianism of the 1950s-60s ‘new left’ is to blame for breaking up the moral solidarities of working class communities and leading us into today’s individualist anomie and dissociation. Blond, of course, adds state welfarism as another devil: ‘He would say that, wouldn’t he?’
The fundamental problem with this argument is the chronology. Blond was a child in the 1970s and Judt was already an academic specialising in French history. It is impossible to have participated in British political life and specifically that of the labour movement in the 1970s and to suppose that the effects of the ‘new left’, then at the height of its influence, were to promote individualism and anomie. On the contrary, the period saw a vibrant associative life ranging across all parties and in the working class ‘communities’ as much as elsewhere.
What changed is - precisely - juridification. This had been already projected as a means of controlling trade unions by the late 1960s judges and Harold Wilson’s and Barbara Castle’s In place of strife (1969). Hence the defeat of the Heath’s anti-union laws in 1972-74 did not eliminate it: on the contrary, the 1974-79 Labour government’s Trade Union and Labour Relations Act 1974 and Employment Protection (Consolidation) Act 1978 continued Heath’s policy of juridification, albeit with less obvious anti-union bias. Gradually, as the TULRA-EPCA regime took hold, decisions were taken away from shop stewards and union branches and given to full-time officials and - standing behind them - the judges. The reason for being active in your union was removed, in the sense that members could no longer have much effect on real decisions.
The juridification policy was not unique to the trade unions. The cuts agenda after the 1976 International Monetary Fund crisis required tight central government control of local government. Ever since, the ratchet has tightened on local government - rate-capping, uniform business rate, poll tax, and so on - and each step has taken away more of the autonomy of local government and with it the reasons to be active in local politics.
Meanwhile, the obscurely technical decision in Anisminic v Foreign Compensation Commission (1968) opened the floodgates to corporate judicial review applications against local government. ‘The judge over your shoulder’ for civil servants is merely an inconvenience: for local councillors, it requires the effective dictatorship of the council’s lawyers.
Efforts to combat the Labour left in the same period produced tightening constitutional controls on candidate selection by the central bureaucracy, a process of internal juridification. Blair and Brown have tightened this to a high pitch of Stalinist control; and Cameron has been driven to copy them in the Tory Party. Why join political parties when all it means is to give money and time to the political projects of a small elite of bureaucrats and lobbyists?
The ‘charitable’ voluntary sector has been by no means immune. As the general culture of juridification took hold, the Charities Commission has pursued an increasingly aggressive interventionism, demanding ‘best practice’ in governance and even - as with the Mariam Appeal - asserting that political campaigns which made no claim to the legal privileges of charity, if they made a claim on human sympathy and solidarity, were ‘charities’ which fell within its regulatory remit.
Juridification is not the only contributor to individualist anomie. Financial globalisation and ‘offshore’, and the enormous expansion of advertising to drown out all communication not supported by the advertisers, play a role too. But juridification is the central and most powerful incentive to dissociation. Take away juridification and association will revive.
Dear voter, many candidates and parties will tell you in this election that they aim to restore ‘civil society’. Blair said so too, remember. Ask them if they are willing to abolish the anti-union laws and curb judicial intervention in unincorporated associations and local government. If they aren’t willing, they are lying through their teeth about restoring ‘civil society’.
A fundamental choice
The capitalist class and its political and legal agents moved into juridification in the 1970s because the associative activity of the workers’ movement and the oppressed was beginning to threaten capitalist political control. At the same period, it adopted a new turn in policy, from ‘containment’ of Soviet ‘communism’ between the 1950s and mid-1970s to Jimmy Carter’s ‘human rights’ offensive and - from 1980 - Ronald Reagan’s ‘roll-back’ policy. And it began the shift into the financial globalisation which is dominant today. All these were precisely responses to the fact that the combination of welfare concessions with partial freedom of association for the working class had begun to threaten capitalist control.
The anti-union laws are thus the central example of a fundamental choice. Capitalism and the rule of law are inconsistent with political democracy and free association. While capitalism was still growing at the expense of pre-capitalist societies and the working class was still globally weak, the conflict was submerged. In the 1950s-70s in the imperialist centres, it was again submerged for a different reason: the need to hold mass support against Soviet ‘communism’ in Europe and the US. In the 1970s the conflict became apparent and capital moved increasingly to juridification against democracy: producing, as the inevitable result, a drift towards anomie.
The choice, then, is this: either to take down capital’s means of control, including juridification, and let free association have free rein, until we eventually reach the freely associated producers as the general form of society. That is, to fight for working class rule. Or we cling to the ‘rule of law’ and the other forms of capitalist control and surrender, bit by bit, to a deepening social decay.
The anti-union laws are the sharpest edge of this choice. The judges in this matter serve the employer. They have done so since the 14th century and they will continue to do so, even if the post-1979 laws are repealed. Trade unionists have to find their own tactics for dealing with judicial interventions on the side of the employer. These will no doubt involve appropriate combinations of legal and illegal activity. But in order to build up their forces and to reduce the effect of judicial interventions, what is needed is a consistent political campaign for freedom of association and to discredit the institutional bias of the legal profession. That campaigning activity is one of the tasks of a party committed to replacing capitalist rule with working class rule: the sort of Communist Party which we need but do not have.
- atthesauce.blogspot.com/2010/04/sharp-end-strike-breaking-judge-her.html#comments, linked on Andy Newman’s Socialist Unity blog, April 6, www.socialistunity.com/?p=5540
- N Clark Law and society in England 1750-1950 London 1989, pp268-69, 295-301; Mogul Steamship v McGregor, Gow & Co (1889) 23 QBD 598, aff’d HL  AC 25.
- JV Orth, ‘English combination acts of the 18th century’ (1987) 5 Law and Hist Rev 175 is a detailed historical account.
- Lumley v Gye (1853) 2 E & B 216; J Danforth 81 Columbia LR 1491 at 1493-99; DR Howarth ‘Against Lumley v Gye’ (2005) 68 MLR 195.
-  AC 1129.
- Stratford v Lindley  AC 269; Emerald Construction Co Ltd v Lowthian  1 WLR 691; Torquay Hotel Co Ltd v Cousins  2 Ch 106.
- AWB Simpson, ‘The common law and legal theory’ in id ed, Oxford essays in jurisprudence Oxford 1973; JH Baker The law’s two bodies Oxford 2001, lecture 3; of course, neither author would approve of the use I am making of their arguments here.
- The Independent July 14 2004; www.opsi.gov.uk/acts/acts2005/ukpga_20050004_en_1
- More in my ‘The war and the law’ Weekly Worker September 25 2003.
- JAG Griffith, ‘The political constitution’ (1979) 42 MLR 1; The politics of the judiciary London 1997; a recent liberal critique of Griffith and of Tomkins (below), which includes reference to later literature on Griffith’s arguments, is P Craig, ‘Political constitutionalism and judicial review’ (2009): papers.ssrn.com/sol3/papers.cfm?abstract_id=1503505
- R Hirschl Towards juristocracy Harvard UP 2004; A Tomkins Our republican constitution Hart 2005.
- T Judt Ill fares the land: a treatise on our present discontents Allen Lane 2010; P Blond Red Tory: how left and right have broken Britain and how we can fix it London 2010.
-  2 AC 147; though formally directed against a central government compensation tribunal, the general principle asserted still broke all restraint on judicial review.
- www.thirdsector.co.uk/channels/governance has various information on the aggressive interventionism of the Charities Commission, though not - obviously - with this interpretation of it.