Life on Mars? - PowerPoint Presentation

Slide1

Life on Mars? The Trade Union Bill 2015 in context

Professor Alan Bogg, University of OxfordSlide2

The Trade Union Bill 2015: Main features

Measures to restrict strike action and to disempower trade unions by impeding the ‘right to organize’: new balloting constraints, restraints on lawful picketing and protest, permitting the use of agency workers to break strikes, and restriction of check-off and facilities time

Measures to interfere with trade union autonomy through the disciplinary powers of the Certification Officer

Measures to disempower the political voice of trade unions and to disrupt the funding of the Labour PartySlide3

The Trade Union Bill 2015: more neoliberalism or a new era?

The Trade Union Bill 2015 reflects a new era of labour relations reform: this is not simply the latest round of ‘neoliberalism’. To characterize it as more of the same is dangerous and profoundly mistaken. This is a new phenomenon of authoritarian conservatism.

A comprehensive legislative strategy of industrial and political disempowerment: a full-scale assault on autonomous trade unionism

The restrictions are not evidence-based (compare Davies and Freedland on labour legislation 1979-1990: ‘the measures and policies, rather than being the implementation of grand strategies, are more in the nature of a series of initiatives and experiments having cumulative effects’)

The ‘consumer’ versus ‘worker’? Consumer ‘rights’ as an alibi for trade union restriction but the contemplation of new coercive controls to stifle civic solidarity between consumers and trade unions in challenging unfair labour practices

Are we entering a new phase where the coercive and stigmatic machinery of criminalization are being deployed to enforce labour discipline and to suppress dissent? Parallels with more authoritarian strands of Conservative ideology? Slide4

Circumscribing legitimate protest I

The Carr Report: The Report of the Independent Review of the Law Governing Industrial Disputes (October 2014)

Origins of the Report in the Unite-INEOS dispute at Grangemouth

Targeting ‘leverage’ strategies described variously as ‘extreme’ or ‘inappropriate’ or ‘intimidatory’:

‘Leverage is an extension of the understanding that “weight of argument” does not change the position of an employer…[It] is the translation of an organising mind-set into the planning and implementation of a campaign strategy, underpinned by the escalation of pressure’

(Unite the Union, ‘Leverage’)

The limitations of the review: Carr scales back the review because of ‘politicization’ (can labour law reform be

apolitica

l?)

‘Without the necessary evidence base…I believed that the work of the Review would be increasingly regarded as lacking the independence necessary for its conclusions to carry credibility’ (Carr, para 1.8)Slide5

Circumscribing legitimate protest IIBIS, Consultation on tackling intimidation of non-striking workers (July 2015)

A shift in presentation: from the intimidation of

employers

(in Carr) to the intimidation of

‘non-striking workers

’ (in the BIS Consultation)

The consultation is presented as building on Carr, but given the limitations of the Carr Review, it is building on sandSlide6

Circumscribing legitimate protest IIIThe consultation proposed a range of highly coercive measures involving an increasing use of the criminal sanction to attack ‘extreme’ protest

A new criminal offence of intimidation on the picket line

Making key provisions of the picketing Code of Practice legally mandatory

Enhancing the enforcement role of the Certification Officer (CO); requiring trade union to publish their protest plans and an annual reporting return to the CO detailing its industrial action and protest activities

Strengthening the Code of Practice to cover the inappropriate use of social media during disputesSlide7

Circumscribing legitimate protest IV

The Government response to the BIS Consultation (November

2015) involves a significant scaling back of the original proposals

No further criminal offences or mandatory requirements to publish protest plans

Retention in the TU Bill of further legal restrictions on the ‘immunity’ for union-organised picketing at the workplace: (

i

) appointment of a picket supervisor, (ii) familiar with the Code of Practice,(iii) made known to the police, (iv) carrying a letter of authorisation, (v) who must produce the letter to a constable or an employer representative who makes a reasonable request to see the letter, (vi) present at the picket or readily contactible, and (vii) wearing a badge or identifying armband.

Amendments to TU Bill to clarify that only an ‘employer or its agent’ can reasonably request to see the authorisation letter, and the letter of authorisation need not

name

the supervisorSlide8

A new coercive profile for the State? Using the criminal law to suppress collective protest

The Trade Union Bill embodies a comprehensive attack on effective workplace picketing:

‘A statute which in principle prohibited the employer from carrying on his operation in the circumstances of a trade dispute would resolve the problems of picketing to a large extent.’ (Bercusson, [1977] MLR 268, 292).

The TU Bill simultaneously restricts picketing while enabling the employer to use temporary agency labour to break strikes.

Legal and political discourse currently deploys a biased and partisan discourse of ‘extreme’ tactics: it is ‘extreme’ to drink a can of lager on a picket line, but not ‘extreme’ to threaten to close down critical infrastructure, with thousands of redundancies, to penalize strong trade unions. The invisible dominance of private property and contract as a baseline for measuring the ‘extremity’ of tactics.

What about other forms of ‘leverage’ protest? There are already a range of broad and vague criminal offences capable of being deployed. Will we witness a silent ‘re-criminalization’ of protest by making more effective use of the criminal offences already in existence to suppress ‘leverage’?Slide9

Conservatism or (neo-)liberalism? Making political sense of the Trade Union Bill 2015

‘The concept of freedom, therefore, cannot occupy a central place in conservative thinking, whether about national affairs, international politics or the internal guidance of an autonomous institution.’ (Scruton,

The Meaning of Conservatism

, 8)

The legitimate role of criminal law to enforce ‘social order’: no abstract limits to the coercive authority of the State

D

emocracy and human rights are corruptions of a civil order based upon authority and the maintenance of inherited traditions

The common law as a repository of the community’s traditions

‘In politics, the conservative attitude seeks above all for government, and regards no citizen as possessed of a natural right that transcends his obligation to be ruled. For what use is a right, without the law-abiding and law-enforcing power that upholds it?’ (Scruton, ibid.)

The Trade Union Bill 2015: conservative authoritarianism beyond HayekSlide10

Authoritarian conservatism: possible responses

The strategy of civil disobedience (see UNITE’s modification of its rule book, and Len McCluskey’s recent lecture to the Industrial Law Society)

The strategy of political contestation (note the significance of the political funding reforms)

The strategy of human rights litigationSlide11

The potential and the limits of a human rights strategy

Human rights litigation is principally

defensive

: it does not and cannot constitute a comprehensive

political

strategy

Its principal defensive function is to impede State interference with core freedom of association rights (see, in particular, recent decisions under the Canadian Charter on the ‘right to strike’).

The nature of a right is such that it is a claim that possesses special normative weight

The reasons that are capable of overriding respect for a right are therefore constrained: other rights or compelling public interests

There is no ‘

right

not to be inconvenienced’ known to human rights law, moral and political philosophy, or the English common law

The ILO’s approach to ‘essential services’ seems to be rights-based: only where industrial action presents a serious threat to citizens’ right to health and bodily integrity will it fall within the scope of ‘essential services’. This should inform the development of jurisprudence under Art 11 (2)Slide12

A new dawn: Authoritarian Conservatism and labour law

‘Neo-liberalism’ as an analytical category is no longer fit for purpose: it is insufficiently discriminating and fails to capture what is new and distinctive about the new labour law

The ‘consumer’ as a justification for restricting workers’ collective action

and

as an object of civic restriction in the disruption of ‘leverage’ between workers and consumers

The growing profile of the criminal law in the suppression of protest

The new disdain for international law, human rights and the judicial role (see the recent work of

Policy Exchange

in its ‘Judicial Power Project’)

Human rights litigation: it cannot be a substitute for a political strategy, but it provides a vital element in a wider strategy of political resistance and renewal. Now is not the time to be walking hand in hand with

Policy Exchange

.