Prior's Attack on the Right to Strike

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Final part of a series by Jack Burnett With these words the satirist Michael Frayn opened an article on the "Perfect Strike" which he penned for the Observer many years ago.

His purpose was no doubt to entertain but it appears that the present government have taken him so seriously as to construct their legislation on industrial action around the schizophrenia that Frayn attributes to public opinion.

Under this law, the key question that will determine whether or not most strikes or industrial actions such as a 'go-slow' or a work to rule are legal will be whether or not they lead to a breach or interference with the performance of a commercial contract!

As the bargaining power of any strike rests precisely on its real or threatened capacity to interfere with the performance of a commercial contract the purpose of the 'Catch 22' Act is simply to outlaw all strikes that do not fall into one of the following categories:

1) A strike or industrial action by workers against their own employer at the workplace in dispute or at another workplace owned by the same employer.

2) A strike or industrial action by workers while not employed at the workplace in dispute but employed by a major supplier or a major customer of the workplace in dispute.

Conditions

However this second category, so called secondary industrial action will only be legal if it meets the following conditions:

a) There is a regular contract in existence between the workplace in dispute and the supplier customer where the sympathy industrial action is taking place.

b) A judge believes (after an employer has unsuccessfully sought an injunction in the courts to stop the sympathy strike action) that the sympathy strikers at the customers of or suppliers to the workplace in dispute are likely by their action to help the workers at the place of original dispute win their conflict with their employer.

c) That a judge is satisfied (!) that the motivation of the sympathy strikers at the supplier or customer has the primary purpose of disrupting supplies betwen their workplace and the workplace in dispute.

• It might be thought by the average person who doesn't reflect too deeply on these matters that these last two conditions are self-evidently superfluous.

'Common sense'

Surely workers don't opt for courses of industrial action that are unlikely to achieve their objectives! And pursuing this common sense logic, that has so blighted the political development of the English working class, a little further, he thinks to himself, the primary purpose of disrupting supplies must be ...to disrupt supplies.

Lord Denning, however, was able to show during the recent steel strike that when the steel union brought out its members in the private sector of the steel industry to stand alongside their fellow members already out and in dispute with the British Steel Corporation, Bill Sirs, as union leader was acting illegally.

Such an action was unlikely to help win the strike because it was "too remote" to have any impact or "further" the dispute with the BSC.

In fact, calling out the private sector, whatever appearance must suggest to the superficial observer was not an industrial action but a political one.

For the intention of the Iron and Steel Trades Confederation (ISTC) better understood by Lord Denning than by the ISTC leaders and members, was not to bring pressure to bear on the employer with whom they are in dispute but to bring pressure to bear on the government who of course were not a party to the dispute at all-a nice juridical distinction that at present is being maintained by dint of injunctions against the Sunday Times and legal threats against journalists to betray the confidential sources that have provided substantial evidence to the contrary.

Lord Denning's superior qualities as a trade union strategist lad him last year to ups. Newspapers for an injunction against the National Union of Journalists.

Blacking

In their dispute with the country's provincial newspapers the NUJ blacked all Press Assoc lation copy when the PA refused to stop supplying material to the provincial papers.

Such blacking covering only a part of the copy that made up the papers affected did not have, in the opinion of Denning, "a reasonable prospect" of • furthering the provincial journalists dispute. In fact its motivation was in the words of this robed wrecker "merely ... keeping up the morale" of one side during the dispute, and as all militant shop stewards in Chancery will know, keeping up morale has no effect on the likely outcome of a strike or dispute.

Quite wrong

Here are two clear cut cases where the . trade unionists believed they were pursuing various actions "in furtherance of a trade dispute." They thought bringing out wider sections in one case would make it more likely they would win.

In another they thought they were disrupting journalistic copy for the primary purpose of getting their employer to settle.

But they were quite wrong. The learned Lords were able to show they were doing something • completely different. In both these cases it should be said Denning. was overruled by the Court of Appeal. In overturning Denning's judgement in the case of the newspaper dispute Lord Justice Scarman said:

"It would be a strange and embarrassing task for a judge to be called upon to review the tactics of a party to a trade dispute and to determine whether in the view of the court the tactic employed was likely to further or advance that Prior spells out his strategy party's side of the dispute. It would need very clear statutory language to persuade me that Parliament intended to allow the courts to act as some sort of back-seat driver in trade disputes".

That was of course before Prior's Employment Bill became law. And it is quite clear that Prior has. incorporated Denning's rather than Scarman's philosophy into his legal framework and intends precisely to allow judges to be back-seat drivers in reviewing, approving or condemning the tactics that trade unionists pursue in fighting the employers.

The judges in the attacks on trade unions have time and again over more than a century centred their attacks on the question of breach of contract.

thinks or the English judiciary one cannot but admire the energy, perseverence, single mindedness and ingenuity with which they have undermined, outflanked and otherwise flouted various Acts of Parliament designed to give trade unions a degree of immunity from liability claims of employers.

"Conspiracy"

In 1872 the judiciary convicted trade unionists, who tried to organise gas workers in the West. End of London, of "criminal conspiracy" The threatened strike by gas workers (then a crime) meant breaking their contracts and their combination for the purpose of breaking their contracts constituted an "unjustifiable annoyance or interference with the at the Tory Party conference. masters in the conduct of their business"

When Disraeli's parliament in 1875 passed a Trades Disputes Act which gave trade unionists protection against criminal conspiracy as long as they acted in contemplation or furtherance of a trade dispute the judges had to think again.

Astonishment

They took a little while to do so but in 1901 they developed the notion of civil conspiracy and felt that the Taff Vale railway company could claim damages suffered in a dispute with the Amalgamated Society of Railway Servants.

They could do so said the Law Lords to the astonishment it must be said of most lawyers of the day, because while ASRS was a registered, it was an unincorporated trade union.

This new crime of civil conspiracy and this 'unincorporated' exception to the immunity granted to trade unions in 1875 produced this observation from a legal expert:

"The House of Lords first invented a new civil offence and then created a new kind of defendant against whom it could be alleged."

The Taff, Vale judgement completely undermined what protection had been given to trade unions in 1875. It should be said that the immunity given many uninformed people believe, put trade unions above the law.

What thẹ Act did was to say that industrial action could not spiracy. Any criminal act perpetrated by a trade unionist, whether in the course of furthering a trade dispute or not is still punishable. The only difference is that the trade unionist would have to be charged for the crime, a specific thing for which concrete evidence would have to be furnished while conspiracy to commit a crime requires no concrete evidence, permits hearsay, evidence, doesn't even require the crime to have taken place or proof that the alleged conspirators would carry it out.

In short it is much vaguer, much more likely to secure a conviction, much harsher in the sentences it can impose and consequently much liked by judges and the State as weapons against its enemies of which history shows trade unionists to prominently figure.

Overturned

The limited Parliamentary protection granted trade unions in 1875 was overturned by the Law Lords in 1901 and restored by Parliament in 1906. But the immunity granted trade unions in 1906 has effectively been a technicality because since 1906 actions in tort (claims for damage for civil wrongs) have never been brought against a trade union but instead against officials and members of a union who have never been given such immunity.

In 1964 a certain character called Rookes left his union DATA, whereupon his fellow workers, to protect their closed shop refused to work with him.

The official threatened the management that industrial action would follow if he didn't get rid of Rookes. He did and in his case it was held by Lord Devlin that while the workers and the official were breaking no law in contemplating • or out industrial action once they "threatened" to do so they were guilty of a new crime of civil intimidation!

So industrial action is all right but to threaten it is not. The minority Labour government of 19746 was defeated by a combined opposition when it tried to draft legislation granting immunity for breach of contracts in contemplation or furtherance of a trade dispute.

The opposition added the two words "of employment" The consequence of this is to grant immunity for one act but take it away for the consequences of that act! For how can a contract of employment be broken without interfering with the performance of a commercial contract that the employment was engaged upon?

Notion

Perhaps when James Prior brings out his next "Codes of Practice" for acceptable industrial action his notion of the perfect strike will be something very like what Michael Frayn advocated in that Observer article many years ago:

"A small decorous strike of company directors during one lunch hour in favour of lower wages for trade union officials. It should take place under a Liberal government just as soon as America, the • Common Market, Japan and our other principal economic competitors happen to sink into the sea.""

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in furtherance or contemplation of a trade union does not, as