A short history of resistance to anti-strike laws

“The past is never dead. It is not even past.”

William Faulkner.

The strong verbal opposition from union leaders to the Strikes (Minimum Service Levels) Bill (now Act) 2023 is a good moment to survey the ­resistance—industrial, legal, and political—to previous anti-strike laws and ­discuss how this latest attack can be combated. The Strikes Bill was rushed through the House of Commons during a fortnight in January, with no ­amendments accepted.1 The bill then meandered through the House of Lords, which delayed ­passing it until 20 July, the day before Parliament’s summer recess. In the process, the Commons “disagreed” with the Lords’ amendments on three ­occasions before the unelected chamber conceded defeat, and the bill passed into law.2

The bill’s six-month passage through the House of Lords constituted a ­delaying tactic—about the best that could be achieved solely through parliamentary means. Another method of frustrating anti-strike legislation had borne fruit one week earlier, on 13 July 2023, when the High Court ruled that a 2022 ­legislative change allowing employment agencies to supply strikebreakers was itself unlawful.3 Tory business secretary Kwasi Kwarteng was responsible, in July 2022, for the statutory instrument that revoked the previous ban on supplying ­strikebreakers.4 Legal proceedings challenging it were started by 13 trade unions in September of that year, arguing that there had been a failure to comply with the statutory duty to consultation and that the regulations breached the European Convention on Human Rights. The judge only ruled on the first ground. The government is not appealing.5

Parliamentary and legal tactics have always been part of the repertoire of resistance to anti-strike laws, but they have often had limited effect on their own.6 The two classic examples of effective resistance to anti-strike laws—which took place during the high point of shop-floor militancy and unofficial strikes in Britain, about half a century ago—both involved strike action. In the first, prospective punitive legislation, Labour’s 1969 In Place of Strife white paper, was withdrawn. The second saw the skewering of the Tories’ 1971 Industrial Relations Act by the springing of five London dockers from Pentonville Prison in July 1972.7

The most incendiary features of these two episodes concerned the ­criminalisation of strikers. Labour’s proposal to introduce fines on strikers who refused to return to work in certain circumstances brought the “taint of criminality” to union activities. It also provoked endless arguments about whether defaulting on paying fines could lead to imprisonment.8 The 1971 Industrial Relations Act was a much grander affair: “The most dramatic attempt by any British government to impose a master plan for industrial relations”.9 One of this act’s central features was the liability of unions for the actions of their members, but the court rulings resulting from dockers’ unofficial strike action blew this apart. An otherwise notorious judge, Lord Alfred Denning, later wrote that imprisonment for contempt of court, the criminal offence with which the Pentonville dockers were charged, “should never be used” again in industrial disputes.10

These two examples will be further discussed later in the article. Reacting to the experience of the 1971 Industrial Relations Act, the next Tory administration, which took power under Margaret Thatcher in 1979, aimed to introduce a fool-proof set of “sanctions without martyrs”.11 This removed a potent focus for protest, both official and unofficial. This ploy was compounded by the historic shift in Labour Party policy during the late 1980s and 1990s towards abandoning its support for a wide “freedom to strike” and accepting the Tories’ laws as a new “settlement”.12

Under Jeremy Corbyn, Labour pledged to repeal the 2016 Trade Union Act, and this is still its formal policy, as is the repeal of the new 2023 Strikes Act.13 Whether, and how, this happens—and whether Labour rolls back other strike restrictions, for example, legalising secondary (solidarity or sympathy) action—will depend, as in the past, on pressure from below.

Overview of legal changes

To appreciate what resistance is possible we need some sense of how the law operates. The British legal system is based on “common law”, that is, law made by judges where “precedents” set by higher courts bind lower courts until ­legislation (statute law passed in parliament) overrules them.14 Common law principles in the courts view “unions as an improper restraint of trade in the market” and “industrial action as an interference with contracts and property rights”.15 Thus, even after unions became lawful, the courts still saw them as illegitimate.

Broadly speaking, strike law in Britain has gone through three phases. In the first, ending in the 1870s, strikers (whether in unions or not) were subject to ­criminal law (fines and imprisonment) and unions were outside the law. Then, in a second phase, for about 100 years (with interruptions, such as in wartime), there was a wide “freedom to strike”. This was only confirmed in 1906 after a 15-year period in which new liabilities against unions and their officials—enforced by court orders (“injunctions”) and the payment of money (“damages”) for the financial losses caused by strikes—had been developed by the courts. From that year, striking was generally protected from civil action in the courts. However, from 1980, this changed dramatically due to the Tories’ systematic legislative attack on the ­“freedom to strike”, ushering in the third and current phase of strike law. The legacy of the first two phases is still with us, reflecting the truth of the William Faulkner quote at the beginning of this article.

Under common law, British trade unions are criminal ­conspiracies and are “in restraint of trade”. Reforming legislation in the 1870s did not abandon these ­doctrines, but gave strikers protection from some forms of ­prosecution under them. Criminal sanctions against workers under the centuries-old “master and ­servant” laws were also ended. These could be activated against workers for leaving work ­without notice or agreement, including due to striking. These reforms in the 1870s were the result of working-class agitation, with the emergence of the Trades Union Congress (TUC) in 1868, and its ­parliamentary committee in 1871, signifying the unions’ shift from petitioning parliament to lobbying government ministers.16

Once unions had achieved lawful status in 1871, with striking no longer subject to criminal sanctions after 1875, unions became potentially vulnerable to the vagaries of the common law in civil courts. A flurry of legal cases, using injunctions against union officials and then against unions, accompanied the employers’ counter-offensive in the wake of the late 1880s’ strike wave. This movement of unorganised workers—dockers and gas workers, female factory workers (such as the famous Bryant and May match workers), and other so-called unskilled ­workers—formed new unions and sent shudders down the spine of employers as well as enthusing existing and established unions.

Adverse court judgments, particularly over picketing, culminated in the infamous 1901 Taff Vale case, when a strike by the main rail union (then recognised by only one private railway company) led to heavy damages and legal costs. This sent ­shockwaves through the unions and turbo-charged their growing support for the infant Labour Party. The resulting 1906 Trade Disputes Act, passed by the Liberal government after their landslide victory at that year’s general election, granted unions “immunities” (that is, negative freedoms) against the civil liability generated by the judges’ development of the law of tort (civil wrongs other than breach of contract).17 This generally kept the courts out of industrial disputes.

However, as Sidney Webb and Beatrice Webb, the pioneer historians of British trade unionism, cautioned in 1920, “It must not be imagined that either the ingenuity of the lawyers or the prejudice of the judges has been exhausted”.18 Successful legal challenges to the 1906 Act came in the 1960s, with the period of “full” employment, by which time the Tories’ tolerance of unions was wearing thin. Until then, the Conservatives had grudgingly accepted the 1906 settlement, amending rather than abandoning it when legislating after the defeat of the 1926 General Strike.

Labour generally defended the 1906 settlement, with its wide “freedom to strike”, restoring it after regressive legislation was passed by the Tories in 1927 and 1971 and after adverse court judgments in the 1960s. There was nothing preordained about what happened next. In 1980, Thatcher’s government responded to the militancy of the 1970s, including the humiliation of Edward Heath’s Conservative administration by unions in 1974, by significantly narrowing what constituted a lawful “trade dispute”. Then, in 1982, it made unions liable for injunctions and damages if they took industrial action for what were now “unlawful” objectives, such as carrying out secondary and “political” strikes. This marked the beginning of the third phase of strike law, in which unions were now targeted by legislation.19

Had there been no right-wing breakaway from Labour in 1981 to form the Social Democratic Party, thus splitting the anti-Tory vote, Thatcher’s first government would probably have been a one-term wonder, just like Heath’s. At this time, the Labour Party was committed to repealing the new anti-union laws of the early 1980s­—although the Tories would undoubtedly have legislated against unions once again when next in government in pursuit of neoliberal “freeing up” of markets.

Instead, the Tories took advantage of their electoral good fortune and ­opportunistically used the mantra of “democracy” to foist strike ballots on unions in 1984. These became postal ballots in 1993, depressing turnout, and there were further new requirements about giving notice of both ballots and strikes to employers. In 1996, at the fag-end of John Major’s Conservative government, a green paper proposed extending strike notice periods, putting time limits on strike ballot mandates, requiring minimum turnouts, and constraining strikes in essential services. These proposals fell along with Major’s government, but they were recycled by the 2016 Trade Union Act under the next majority Tory ­administration, which was elected in 2015.

The rest of this article briefly outlines current legislation before discussing key moments in the history of anti-union legislation. The three phases of strike law, and resistance to it, are taken in turn, with picketing then considered separately. An important distinction will be made between the law on unions and that concerned with individual strikers. Even during the period of the greatest “freedom to strike”, from the 1870s to the 1970s, individual strikers generally had no protection in law in Britain. Unlike many continental European countries, there is no positive right to strike for unions or workers, and a strike is a breach—not a suspension—of contract. Workers have had to rely on their own level of organisation, not on the law. This article concludes with a discussion of the 2023 Strikes Act and the means of resisting it.

Structure of current legislation

The three historical legislative regimes are embedded in one current law, the 1992 Trade Union and Labour Relations (Consolidation) Act. This brought together most statute law on trade unions. Subsequent acts of parliament amend the 1992 Act, as does the 2023 Strikes Act. Part 5 of the 1992 Act, which deals with industrial action, is more or less impenetrable, involving many pitfalls for those trying to get to grips with it. The text makes most sense when understood as a series of deposits of two historical processes: first, the freeing of unions and their members from common law criminal and civil liabilities against striking; then, the slow constriction of unions into a legal, as well as ideological, straitjacket.

The 1992 Act’s provisions contain most of the changes over the past 150 years. First, dating from the 1870s, there are protections for strikers from the centuries-old criminal liability for conspiracy (sections 242-243), though there are still criminal liabilities from that era (sections 240-241).20 Second, dating mainly from 1906, there are protections for unions from civil liabilities (section 219). Third, from 1980 onward, there are actions now excluded from civil protection (sections 222-225), plus the labyrinthine ballot and notice requirements (sections 226-234). The bulk of the new 2023 Act is tacked to the end of section 234, accompanied by “regulations” on minimum service levels in some affected industries, which are as yet unpublished.21

The 1992 Act also includes rules on “ex parte” injunctions, that is, injunctions ordered by judges in the absence of the defendant, which date from the Labour government in 1974 (section 221). Furthermore, there are limits on damages in tort cases against unions (section 22), introduced in 1982, when such claims were allowed, and quadrupled in July 2022, and there is the procedure for unions to “repudiate” unofficial industrial action (section 21).22 Sections on picketing retain residual criminal elements dating from the 1870s (section 241), and there is a categorisation of “peaceful picketing”, formulated in 1906, but amended in 1980 and 2016 (section 220).23 Finally, the law on “unfair dismissal” resulting from industrial action—originating in 1971, but heavily amended since, including by the 2023 Act—is addressed in sections 237-239, in conjunction with sections of the Employment Rights Act 1996.

The first period of strike law: striking as a crime

Generally, criminal laws against strikers were initially inseparable from those governing attendance at work. Laws about attending work arose after the arrival of the Black Death in England in 1348, which caused massive depopulation, because feudal authorities feared hired workers would exploit the resulting labour shortage. The 1562 Statute of Artificers, introduced under Queen Elizabeth I, overhauled the wage-fixing laws implemented to try to stop workers bargaining. According to Karl Marx, as capitalism expanded, the “legal regulation of wages [was] as impracticable as it was unnecessary; but the ruling classes were ­unwilling to be without the weapons of the old arsenal in case some emergency should arise”.24 For example, after the Great Fire of London in 1666, the Rebuilding of London Act targeted building workers who “may make the common calamity a pretence to extort unreasonable or excessive wages”. If there were “combinations” (an early term for unions), then pay would have to be set by justices of the peace. If workers refused work at these rates or left their work without agreement, they faced prison for a month unless they paid a heavy fine.25

Laws against workers leaving before the end of their contracts, which ­encompassed striking, were generally known as the “master and servant acts”.26 Employers would need to launch private prosecutions in magistrates’ courts, and workers could be fined or imprisoned. Sometimes such provisions were included in ­combination laws, such as a 1720 act against journeymen tailors, which included a wage-fixing mechanism. Some 7,000 London tailors had struck to exploit the demand for fine clothes by those profiting from the South Sea Bubble, an early speculative bubble on the stock market. A number of trade-specific acts were passed, usually after significant collective action, throughout the 18th century.27

In the wake of the French Revolution and increasing British labour militancy, all combinations were outlawed in acts of 1799 and 1800. The various ­combination laws allowed summary justice against strikers in magistrates’ courts, which could include fines and imprisonment of up to three months, sometimes with hard labour. The employer, rather than the state, would prosecute. Strikes, and other forms of pressure on employers and fellow workers, could also be prosecuted in higher courts as ­“conspiracies” (defined as two or more persons agreeing to commit an unlawful act) under common law or against a statute. These could result in much longer sentences. In practice, employers sometimes threatened legal action to stop the combination or went to court so that the magistrate or judge could extract promises of future “good behaviour”, with a financial penalty for failure to adhere to this promise. However, some “exemplary” sentences were also meted out as deterrents.28 Rarely was the “habit of association” among workers of the same occupation ­extinguished by such court cases.29

Although few trades escaped prosecutions, many were little troubled by the law; forms of bargaining with employers continued, even during the most ­repressive periods. After a campaign, over 100 petitions to repeal the ­combination laws helped legislation pass with limited parliamentary discussion in 1824. The repeal act exempted those involved in combinations from possible prosecution for conspiracy. Yet, violence, threats and “intimidation” against employers and fellow workers were still crimes. In 1825, a trade boom led to a strike wave, and parliament restored conspiracy charges, except for combinations focused on wages and working hours. Forming a union was no longer punishable, but unions were still “outside the law”, and their funds were vulnerable.30 The 1825 Combinations of Workmen Act added crimes of “molesting” and “obstructing”—vague offences chiefly targeting pickets.31

In the centres of trade union activity, “when the movement was threatened by some particular legal or parliamentary danger”, early forerunners of trades councils were set up to enable local unions to meet together. Such committees had contributed “powerfully” to defeating the re-enactment of the combination acts in 1825. They were also important to the public agitation in support of six agricultural workers who had sworn an oath of secrecy when forming a trade union, the so-called the Tolpuddle Martyrs, who faced transportation to Australia for seven years in 1834.32 Trades councils were natural forums for supporting wider labour movement causes. In 1864, for example, Glasgow trades council convened a conference of several other trades councils and national unions in London to campaign for reform of the master and servant laws, under which 10,000 cases of breach of contract were being tried every year. The Webbs noted the historical import of this event:

This conference…[marked] an epoch in trade union history. For the first time a national meeting of trade union delegates was spontaneously convened by a trade union organisation to discuss a purely workman’s question in the presence of working men alone.33

After further campaigning, most instances of imprisonment for breach of contract were removed by the 1867 Master and Servant Act. It was the unions’ “first positive success” in legislation and came at an opportune moment.34 Until then, unions had been protecting their members from the effects of laws. For example, Chartist solicitor William Prowting Roberts, dubbed “the miners’ attorney-general, had excelled in doing just this during the mid-19th century. Now, however, some unions were trying to actually change those laws.35

After the defeat of the Liberal Party’s very limited bill for franchise reform in June 1866, there was a “great wave of agitation”, which has been well described by Paul Foot.36 Conservative prime minister Benjamin Disraeli was forced to concede a relatively significant extension of the franchise in 1867. This conferred voting rights on some working-class men, meaning their main representatives, the unions, had to be treated with more care by the two main political parties.

In 1872, when gas workers went on strike in London, threatening to plunge whole areas into darkness, five of them were sentenced to 12 months’ imprisonment for common law conspiracy. The judge ruled that this crime had been left intact, despite a new law in 1871. The jailings became a lightning rod for protests around the country, and Liberal MPs were forced to press for official intervention. The cabinet agreed to remit eight months of the sentence. The men’s release from Maidstone Prison in April 1873 was marked with a breakfast organised by the local trades council.37 A series of other cases kept this act’s iniquities in the public eye.

Already, in January 1873, the London trades council had held a mass meeting and agreed on a big demonstration against the 1871 Criminal Law Amendment Act. The protest, held on 2 June in Hyde Park, involved an estimated 100,000 participants.38 In August, Edinburgh trades council also held a large rally against this act. Its ­resolutions included only supporting those parliamentary candidates who pledged to repeal it.39 When five cabinet-makers were indicted for “conspiring” to commit offences under the 1871 Act, they refused an offer to drop the charges in return for an apology and the withdrawal of pickets. They were prepared to stand trial and risk imprisonment in order to test the law. The firm employed private detectives, but no physical “molestation” or disorder were found. Still, the strikers were sentenced to one month in jail.40 A Hyde Park rally celebrated their release in May 1875.41 Despite their imprisonment, a chain of events had been set in motion, and the new Conservative government repealed the act (though not all of its provisions).42

The replacement statute, the 1875 Conspiracy and Protection of Property Act, removed the charge of criminal conspiracy from acts “in ­contemplation or ­furtherance of a trade dispute” if “such acts committed by one person would not be punishable as a crime”.43 This appeared to mark the end of the criminal era, but the 1875 Act was back in the spotlight nearly a century later. In 1972, the successful national building workers’ strike required extensive picketing, which led to a series of stitch-up trials after the event.44 In Mold, North Wales, the prosecution lost every charge of intimidation under the 1875 Act. Even if the state had succeeded, the maximum sentence was only three months. However, in the subsequent trials at Shrewsbury, the prosecution’s tactics changed, and six “ringleaders” were also charged with three common law offences: conspiracy to intimidate, affray and unlawful assembly. Three were sentenced to prison, including Des Warren, who received three years, and Ricky Tomlinson, who received two. In 2012, decades later, a campaign led to an application to the Criminal Cases Review Commission. The Court of Appeal “quashed” the convictions in 2021.45 The ­importance of using every legal avenue to challenge convictions of strikers cannot be overstated.

The second period of strike law: “freedom to strike”

The legal cases after 1891, culminating in the 1901 Taff Vale decision, have been mentioned already. Even higher damages were awarded against the South Wales Miners’ Federation in 1905. Before the law was changed in 1906, unions had paid out at least £200,000 (equal to around £30 million today), mainly due to employers’ legal challenges to strikes. Two factors persuaded delegates at the 1903 TUC conference to press for complete legal immunity for unions. The first was the total cost to the railway union (equivalent to about £6 million now), which was left undecided until January 1903. The second was the Tory government’s decision to ignore those union leaders pursuing a more limited bill to counter court judgments. Instead, the Tories appointed a royal commission to report on the matter, with its members including the leading industrial opponent of trade unionism.46 The response to this provocation was impressive:

Up and down the country every society [trade union], great and small, and practically every branch, rallied in defence of its right to exist. The first result was to make the newly formed Labour Party…into an effective political force… As the dissolution of parliament [set for January 1906] approached, the trade unions organised a systematic canvass of all prospective candidates, making it plain that none would receive working-class support unless they pledged themselves to a bill to undo the Taff Vale judgement.47

In the ensuing election, the Liberals won a landslide and the Labour Representation Committee secured 29 seats (along with 12 “Lib-Labs”, mainly miners, who were supported by local Liberal Party associations but financed by the unions). The Webbs described how, in parliament, “Member after member rose…to explain that they had pledged themselves to vote for the complete immunity that unions were supposed to have been granted in 1871”.48

Lewis Minkin, a chronicler of Labour’s relationship to the unions, explained the “primary” importance of “industrial freedom” for unions, which, having been secured “in the face of hostility from employers, the judiciary and, on occasion, the government and legislature, was guarded against threats or incursions from any source”. He continued, “Thus, in a party ­committed to defending the unions’ capacity to organise, bargain, regulate and activate industrial sanctions against employers, it was outside permissible bounds…that the party should restrict what it had been created to protect”.49

1927 Trade Disputes and Trade Unions Act

The first major test for Labour’s position came after the 1926 General Strike, provoked when most of Britain’s one million miners, especially in the exporting coalfields, faced significant pay cuts and longer working times. Most were locked out by employers, while others struck in solidarity. Stanley Baldwin’s Conversative government had granted the industry a temporary subsidy after being threatened with widespread sympathy strike action on “Red Friday” in July 1925. The TUC was committed to supporting the miners, but it was unable to order affiliated unions to strike. Instead, it convened a conference of union executive committees, with the process binding on individual unions. Union members on the railways, in road transport, on the docks, and in iron, steel, printing and building industries came out in the first wave. Engineering, shipbuilding and chemical workers joined after eight days, but the strike was called off by the TUC’s General Council a day later amid much acrimony. The miners were left to fight alone.50

In retaliation for the General Strike, which had posed an obvious challenge to the state, the Conservatives passed the 1927 Trade Disputes and Trade Unions Act. Its provisions weakened the Labour Party’s financial base, made strikes against the government and most secondary strikes “illegal”, and introduced a new criminal offence (albeit never actually prosecuted) of furthering an illegal strike, with such strikes losing their immunity against civil action.51 It also ­created new picketing offences. The TUC ran a massive campaign against the bill, setting up a National Trade Union Defence Committee, with ­representation from the TUC General Council, Labour’s national executive committee, the Parliamentary Labour Party, the Co-operative Party and the Co-operative Union, which represented local co-operative societies.

The press generally boycotted reporting on this opposition: “Never has so large a campaign received so little attention”.52 At a huge rally in London’s Hyde Park, with 12 platforms for speakers, a bugle sounded and the “Trade Union Covenant” was read out at each platform. It still makes compelling reading:

We, trade unionists and members of the working class, custodians of the heritage of freedom and right of association and of organisation won by our forefathers, the pioneers of trade unionism—thousands of whom underwent transportation, prison, victimisation and punishments of all kinds to win that freedom—here and now pledge ourselves to safeguard that heritage, no matter what the consequences to ourselves, with all our strength and to the utmost limit of our power.

Realising the gravity of the attack now being made upon trade unionism by the Tory government, we take upon ourselves the obligation never to cease from striving to keep our trade unions intact and to strengthen them so as to guarantee to them the fullest freedom of action, so handing on to those who come after us a powerful and invincible movement to defend their rights and maintain their liberties.53

The bugle sounded again for the demonstrators to raise their right hands, pledging to stand by the covenant.54 During the parliamentary debate on the bill, the Labour opposition promised to repeal the measure.55 The 1929 minority Labour government, under pressure from the TUC, tried to restore the ­pre-1927 position, but the Liberals objected, so a bill to amend, rather than repeal, was presented in 1931. The Liberals amended this in such a way that, according to the TUC, “any kind of strike, for whatever object, should become illegal if at any point its effect was to hold up the community”. This was even worse than the 1927 Act, so the TUC General Council prevailed upon the government to withdraw this bill.56

After Labour’s parliamentary wipeout in the early 1930s, its 1945 election manifesto was to the point: “The freedom of the trade unions…be restored”.57 Indeed, it was. The repeal act read, “The Trade Disputes and Trade Unions Act…is hereby repealed and, subject to the ­transitional provisions…every enactment and rule of law amended or otherwise affected by that act shall…have effect as if the 1927 Act had not been passed”.58

Denis Pritt, who was sitting as an “independent Labour” MP after his expulsion from Labour in 1940, had unsuccessfully drafted amendments for consideration.59 He later criticised Labour for failing to move beyond the legal situation that existed prior to 1927, especially regarding general strikes, since a High Court judge had declared the 1926 General Strike illegal at the time. He condemned Labour for “the deliberate and cowardly maintenance of all the old uncertainties and weaknesses of the law, calculated to cripple resolute action by the trade union and working-class movement at some critical moment”.60

1964-79: In Place of Strife and the Industrial Relations Act

In 1964, the Labour Party came back to power for the first time since 1951. The TUC pushed the incoming Labour government to reverse the effect of the Rookes vs Barnard judgment (1964), resulting in the very short 1965 Trade Disputes Act. The legal case concerned Douglas Barnard, who had resigned his membership of the draughtsmen’s union, which then threatened a strike because they had a closed shop agreement that enforced 100 percent union membership within his workplace. When the employer dismissed him, he successfully sued three union officers, thus unravelling the 1906 settlement.61

The TUC also agreed to Labour setting up a broader inquiry, the Donovan Commission, because of another case: Stratford vs Lindley (1965). This case saw particular methods of organising secondary action exposed to civil liability.62 Labour’s In Place of Strife white paper, published in 1969, supported this particular right despite targeting certain strikes. The document stated quite openly that unions had a “long tradition of relying on the solidarity of union members…and it would be wrong to attach legal penalties to the practical expression of this”.63

During the 1960s and 1970s, more than 50,000 strikes were recorded by ­government—a staggering figure by today’s standards.64 About 95 percent of these were unofficial, that is, taking place without the advance permission of relevant union committees (and often before union officials even heard about them). This reflected the deepening of union organisation in many workplaces during the “long boom” between 1945 and 1973. Most strikes were short, resulting from workers creating their own solutions to problems at work. The law was no issue. The early post-war years saw some strikers taken to court for breach of contract, particularly when they had failed to give any notice, under the 1875 Employers and Workmen Act, which had replaced the master and servant acts. Nonetheless, this practice effectively died out among employers in the 1950s.

In this period, employers’ main objection was that most unofficial strikes were ­“unconstitutional”, that is, occurring before industry, company and workplace disputes procedures, which had been agreed with the unions, were exhausted. From the late 1960s, such strikes were targeted by both Labour and Conservative governments. While Labour’s In Place of Strife was being debated in parliament, there was a growing unofficial and unconstitutional strike across Ford Motor Company factories against an agreement signed by the union side of the joint negotiating committee. It included a scheme whereby unconstitutional strikes would reduce the money available for lay-off payments and holiday bonus (a measure approved by Barbara Castle, the Labour employment minister responsible for In Place of Strife). The hostility to this was so great that it encouraged the then biggest ever strike in the British car industry, with some 38,000 workers involved. The strike was “officialised” by the two main unions, very much in order to take control over it. Nevertheless, Ford took the unions to court for breaking the agreement. The judge, however, ruled that collective agreements were not legally binding and could be broken without legal remedy for the employer.

Labour’s version of Ford’s sanction, written into In Place of Strife, was to fine workers who refused to return to work when a “conciliation pause” was ordered in certain unconstitutional strikes.65 The TUC was strongly opposed to this, but it was unprepared to recommend action, although it did organise a special congress on 5 June 1969 to present alternative proposals to Labour’s plans. The unofficial Liaison Committee for the Defence of Trade Unions took the initiative and called for stoppages on 27 February and 1 May. Limited numbers of workers took part, but the second day was larger and included some official action, including a print union that stopped national newspapers. Combined with a revolt in the Parliamentary Labour Party and a split in the cabinet, Labour prime minister Harold Wilson was forced to accept a compromise arrangement with the TUC General Council on 18 June. The legislative sanctions were dropped.66

After Wilson lost the 1970 election, suitably chastened and wishing to rebuild bridges with the unions, Labour opposed the Tories’ Industrial Relations Bill, and pledged to repeal it. Other than finance bills, this was the longest in the ­post-1945 era, and it also occupied more parliamentary time than other legislation, with the Labour opposition dragging it out as long as possible in both Houses of Parliament.67 The main amendments to it came from the ­government itself, and the most important was about union registration. Under the 1871 Trade Union Act, unions could voluntarily register with a state body, the Registrar of Friendly Societies, which facilitated some tax benefits but little else.68 The Tories intended a new registrar with more expansive powers: “Registration was the coping stone of the Tory proposals.” All the act’s ­significant rights only applied to registered unions; in return for these rights, unions were required to conform to certain ­procedures on how industrial action was to be called and to enforce discipline against union members who refused to play along (a notion to which the Tories would return). A tactic of “mass non-registration” would, however, “lead to the collapse of the whole structure”.69

This tactic had the apparent merit of uniting unions across the political ­spectrum, since the more constitutionalist wing of the movement was not being asked to challenge “the legal authority of the courts and the government”.70 A special TUC congress in March 1971 agreed to “strongly advise”—though not “instruct”—unions to refuse to register. The government reacted by amending the bill to place all unions on a “provisional register”, forcing them to actively “de-register” if they followed TUC advice. At the TUC’s annual conference in September, concerns about the permissive nature of its policy led to a majority voting for a change in its wording, with unions now “instructed” to de-register. The sanction for a union failing to de-register would be suspension, and then expulsion, from the TUC. This was to be critical after the bill became law.

There was a huge official campaign to “Kill the Bill!” Nonetheless, the Liaison Committee took the initiative, calling a one-day strike in December 1970, which attracted some 350,000 to 600,000 workers and shut down national newspapers. The TUC responded by calling for demonstrations outside working hours on 12 January 1971, which inevitably led to some inside working hours. A very large TUC demonstration on Sunday 21 February brought out 140,000 workers. The engineering union, supported by some others, held national one-day strikes on both 1 and 18 March, the latter of which was the day of a TUC special congress. In aggregate, the 1970-1 stoppages against the bill were the biggest “political” strikes ever held in Britain.71

The crucial showdown over the bill came in 1972. That year, dockers’ action against the loss of jobs caused by the growing containerisation of cargo was being led by the unofficial National Port Shop Stewards Committee.72 This involved some strikes, but mainly picketing and “blacking”, that is, the refusal to handle certain goods. Such action led to cases being brought by employers to the new National Industrial Relations Court (NIRC). The dockers’ main union, the Transport and General Workers’ Union (TGWU), was deemed responsible for its members’ actions. In line with TUC policy at the time, the TGWU refused to attend the NIRC, ignored court orders to persuade members to lift their actions (categorised as “unfair industrial practices” under the act) and was fined £5,000 for contempt of court. When it tried and failed to persuade its members to cease the action, the employer, Heaton Transport of St Helens, returned to court, and the union was fined £50,000 and threatened with “sequestration” (that is, seizure) of its assets. Faced with this first serious challenge, the TUC retreated, allowing unions to defend themselves at the NIRC and advising the TGWU to pay the fine.

The TGWU then appealed the NIRC judgment. To everyone’s surprise, the Court of Appeal, under Lord Denning, upheld the appeal and decided the union was not responsible for its members’ actions after all. One reason was that the union was unregistered, and there was no specific requirement for unregistered bodies to be penalised in that way. De-registration had exposed the weak link in the act’s elaborate legal structure.

The NIRC then turned its attention to the dockers themselves. Dockers from Liverpool, Hull and London refused to either attend the court or acknowledge its orders to stop unofficial action. Eventually, after a false start, warrants were issued for the arrest of five London dockers for contempt of court. On 21 July, four were locked inside Pentonville prison in London. The fifth, Vic Turner, cocked a snook at the establishment by picketing outside the prison the next morning and was arrested and escorted inside. Despite the seasonal shutdown of many factories, an unofficial strike movement against the jailing of the trade unionists gathered pace, including a national dock stoppage and the shutting down of national newspapers, which created a political crisis.

Separately, Heaton Transport, the firm that had taken on the TGWU, appealed against the judgment in favour of the union, taking the case to the highest British court, the Appellate Committee of the House of Lords (whose functions are now performed by the Supreme Court). Abandoning their normal leisurely pace, the Law Lords announced their decision in the late morning of 26 July. Even though the “Pentonville Five” had been jailed for contempt, and refused to “purge the contempt” by apologising and submitting to the court, the Lords’ ruling against the TGWU (now again reaffirmed as responsible for its members’ actions) was used as the basis, through some legal shenanigans, for releasing the dockers that afternoon.

The unofficial movement had accelerated the legal process. The TUC General Council held its regular monthly meeting that same morning and, in the knowledge of the dockers’ impending release, called on “affiliated unions to organise a one-day stoppage of work and demonstrations next Monday”. The General Council was unable to call a general strike because of its rules, but this was the nearest it could get to one at short notice. It was highly symbolic, and a telling riposte to the TUC’s “never again” attitude after the defeat of the 1926 General Strike. Nevertheless, historians’ established view that the TUC’s belated threat, rather than the growing unofficial strike movement, led to the dockers’ release is patently incorrect.73

Several large unions had not yet de-registered, but they now set about doing so, and the 1971 Industrial Relations Act was little used from this point. The engineers’ union was the most defiant, with some district committees leading strikes when the union was fined for refusing to obey court orders in 1972 and 1973.74 However, when possible, it tried to circumvent, rather than confront, the act’s dangers. Unregistered unions were liable to unlimited damages, so the union had separated its assets, leaving little available for funding industrial action.75 Following the Tories’ electoral defeat in February 1974, Labour repealed the act, though this was less straightforward than in 1946. The Industrial Relations Act had itself repealed much of the earlier legislation, so significant redrafting was required. Before the parliamentary process could be completed, there was a large engineering union strike over sequestration of its assets to pay a damages award to Con Mech, a small engineering company, when the union refused to call off a strike for recognition. The money was ultimately paid by an anonymous “group of businessmen”.76

Labour’s minority government was thwarted in widening the scope of lawful secondary action, but it succeeded in 1976, by which time it had a small majority. It had, though, re-enacted the 1971 Act’s new provisions on unfair dismissal, with all their limitations. An employer who sacked all workers on strike would avoid facing unfair dismissal claims, which could only be raised if strikers were selectively dismissed. The Donovan Report had argued against industrial tribunals (today known as ­employment tribunals and handling individual, rather than collective, ­disputes) being drawn into adjudication on the merits of strikes. The unions were also sceptical of positive legal rights on collective issues, such as the “right to strike”, and preferred to rely on their own strength and stick with “immunities”.77

The current period of strike law: legislative reaction since 1980

The 1980s have been labelled the years of “coercive pacification”, with employers “exploiting the new opportunities to challenge the former balance of power…sometimes brutally, sometimes with sophistication”.78 Without doubt it was a time of “class struggle from above”.79 Mass unemployment and radical market restructuring were the background to a ferocious and relentless assault, mainly on manual workers.

Today, anyone under 60 years old has lived their entire adult life under the Tory anti-strike laws that started in 1980. Many are unaware of the scale of union defiance of the anti-strike laws during the 1980s, which was much greater than in the early 1970s. Large numbers of injunctions were served.80 Four unions had their funds sequestrated by the courts for ignoring injunctions and for failing to pay fines levied due to contempt of court.81 These events have been described in this journal, and there is no space here to repeat the detail. The storm blew itself out in the late 1980s, with unions generally complying with the law. In the past 30 years, most injunctions have been issued over minor (and sometimes fantastical) legal breaches. In fact, some bosses later ­overreached so much that unions started winning legal appeals against ­injunctions, which is necessary to stop dangerous precedents being set.

Tory governments reacted opportunistically to success by unions and ­workers. For example, after workers were fined by their unions for working during some high profile disputes, the “right not to be ­unjustifiably ­disciplined” by a union was introduced in 1988 in order to encourage strikebreaking.82 Secondary action, which had been restricted in 1980 but was still lawful in certain circumstances, was also in the firing line. A hypothetical example given by the government was secondary action that might stop the movement of coal to, and within, power stations—an eventuality it evidently still feared.83 All secondary action was made unlawful in 1990.

Unofficial action was generally unaffected by the legal changes of the 1980s. After 1979, the frequency of unofficial strikes did fall rapidly, but this was for other reasons, and it remained a potent reminder of working-class power.84 In 1989, a government green paper cited the upsurge in unofficial mining strikes after the 1984-5 battle. The most strike-prone industries of the 1960s and 1970s (mining, docks, shipbuilding and car manufacture) were joined by the Post Office, leading to 213 unofficial stoppages in the financial year ending in April 1988. That year, a spate of unofficial strikes also broke out on London Underground, leading to a ballot and then an official strike. At the Vickers ­shipyard in ­Barrow-in-Furness, Cumbria, an all-out strike began unofficially, before a mass meeting agreed to secret ballots of each union for an official strike, with workers staying out while these took place.85 Ministers were also worried that unions were quietly encouraging some unofficial action while dodging legal liability. One court ruling against a print union referred to a full-time official and branch ­officers condoning unofficial strikes “by nods, winks, turning of blind eyes and other clandestine methods of approval”.86 From 1990, unions were compelled to “repudiate” unofficial action to avoid being deemed liable for unlawful strikes.

The legal onslaught against unions was matched by the “complete vulnerability” of strikers to employers’ sanctions. In 1986, at the start of the year-long Wapping strike, Rupert Murdoch’s newspaper empire (The Times, Sunday Times, Sun and News of the World) sacked 5,500 workers. This included not just those striking against his plans to bring in new printing technology, but also those off sick. “The publicity given to the solicitors’ letter” to News International, “which advised on the best time to provoke a strike to lay the foundation for cost-free dismissals…probably contributed…to the heightened awareness” of workers’ vulnerability.87 Dismissing everyone, rather than being selective, stopped any recourse to unfair dismissal compensation. A raft of smaller companies followed suit when facing strikes.

The Labour government elected in 1997 was forced by union lobbying to partially plug this loophole. Dismissals of all official strikers during a period of “protected industrial action” (initially eight weeks, then increased to 12) became automatically “unfair”.88 This was no solace for the sacked 2005 Gate Gourmet catering strikers at Heathrow Airport, whose strike was unofficial.89 Labour failed to repeal or amend the 1990 legislation excluding such strikers from unfair dismissal compensation.

The 1980s was a decade of transition from historically high to historically low levels of strike activity. The rapid decline of the unofficial strike took place well before legislation targeted it. From being relatively uncommon, official strikes (which had to be mandated by secret ballot from September 1984) were dominant by the end of the 1980s, with workers’ power under serious attack in many workplaces.90 Not all unofficial strikers, though, were in a weak position. In 2001, an external review of Royal Mail concluded:

Royal Mail is (broadly speaking) legally entitled to dismiss employees taking part in unofficial industrial action—either all those involved or those whom it regards as the ringleaders. However, it has to date been unwilling to take such action, which could have led to serious escalation.91

The next Tory restriction was the 2016 Trade Union Act, which introduced ­turnout thresholds and limited ballot mandates to six months. Despite the ­difficulties of unions achieving 50 percent turnouts in large national postal ­ballots across multiple employers, the act did not have the effect for which the ­government hoped. It led to unions mobilising more systematically, with far fewer ballots failing to win a majority, and a surprisingly high proportion reaching the ­thresholds.92 The 2022-3 inflationary shock saw more very large national ballots beat the thresholds. Some unions, unsure that they would achieve 50 percent turnout in national ­multi-employer ballots, used disaggregated votes, conducted separately in each workforce, enabling them to strike where the threshold was reached.

Combating this act’s challenges also accelerated the big expansion of union strike pay that was already developing. More unions introduced strike pay, and some unions have also improved the amount available. Unite paid out £750,000 to strikers in 2020, but this increased to £5.3million in 2021 and £17.8 million in 2022. The Royal College of Nursing set up a strike fund in 2019, and the British Medical Association, which organises doctors, did the same in March 2023.93 Such actions have bolstered the general mood of workers in those unions fighting back, ­irrespective of the mounting legal obstacles and the timidity of some union tactics.

In the post-1945 era, though national strikes in multi-employer industries ­usually avoided the earlier pattern of indefinite “trials of strength”, often there was some escalation of the numbers of strikers involved or the length of discontinuous action.94 However, the current practice of “stop-start” strikes has even included ­de-escalation in some cases, with unions then being forced to reballot to renew their mandate.95 Ironically, criminal barristers—who are not in a union and not subject to ballot laws—gave a glimpse of what might be possible. In 2022, after months of gradually intensifying action, their third strike vote gave three choices: stop, carry on or escalate. Some 80 percent voted to escalate, resulting in an indefinite strike.

Unions have allowed ballot laws to undermine the deeply rooted tradition of mass meetings, where a show of hands was historically the most common method for starting, maintaining and ending strikes.96 One leading ­commentator in the 1970s referred to this as “direct democracy”. British unions were a ­“movement” more than in other countries: “Institutional petrification has not gone so far…and the unions have remained ‘we’ and not become ‘they’ quite as much as elsewhere”.97 Much of this was because a high proportion of strikes started as unofficial ­movements ­without reference to official unions. Even where ballots, rather than meetings, were used for national official strikes, collective—rather than individual—­involvement in voting was often emphasised. In the national pithead ballots in the 1970s, ­individuals would vote in a public area at the start and finish of shifts.98

The Tories hated these traditions. Introducing the second reading of the 2015 Trade Union Bill, business secretary Sajid Javid referred disparagingly to a past of “shows of hands votes in dimly lit car parks”.99 Yet, where else could workers meet at 7am in the winter? When compulsory strike ballots were introduced for official action in 1984, they could be, and usually were, held at the workplace. In many, a mass meeting would take place before individual ballots were cast, ­helping ­galvanise support for a Yes vote. This collective workplace democracy was ­weakened when postal ballots, delivered to union members’ home addresses, were introduced in 1993.100 In 2019, a court ruled against the Communication Workers Union due to some members filling in postal ballots while at work, confirming “parliament’s intention” in making postal ballots ­mandatory: “to ensure that employees would receive their voting papers at home, so as to have an opportunity to decide whether and how to vote away from the ­environment of the workplace with all its actual or perceived pressures”.101

Many union leaders have seen online voting as the way forward. Len McCluskey, when Unite general secretary, made a dramatic offer during the ­passage of what became the 2016 Trade Union Act. If secure workplace ballots, using online and electronic voting, were introduced, then, in his words, “Unite…would be ­comfortable about accepting the thresholds and the time limit (then four months) on the validity of ballots”.102 Even if a future Labour government were to legislate for “secure electronic and workplace” ballots, as stated in its 2021 green paper and in its 2017 and 2019 election manifestos, this would continue to individualise what should be a collective decision.103

Over the past 30 years, as well as weakening the link to the workplace, postal ballots have given official union machines much greater control over when ballots take place. National unions are liable for any legal infractions, especially over the accuracy of membership lists, giving plenty of scope for delay in running ballots and thus losing momentum. The timetable of the lay union committee meetings that make the decisions on whether and when to ballot, and when and how often to strike, is also controlled by head office.104 A union general secretary (elected by the whole membership) can, often with impunity, interfere with (or even sabotage) decisions of a union’s internal democratic processes. A recent article in this journal has recounted such actions, and how they have been resisted, within the series of strikes since 2018 by the University and College Union.105

Finally, postal ballots have also made inter-union cooperation in multi-union workplaces and industries more difficult since unions generally operate only to their own timetables. This is compounded by the 2016 Trade Union Act’s ­turnout thresholds, with individual unions focused on their own “get out the vote” efforts rather than joint campaigns. The need for coordination of strike dates within industries and services, let alone between them, has seemed blindingly obvious to most workers who have stood on picket lines since summer 2022, but this has happened too infrequently. The complex rules on ballots and sending notice ­letters to employers have strengthened the position of full-time union officials over that of workplace activists. This can be challenged to some extent by the creation of strike ­committees, especially in protracted disputes.

Picketing law and practice over 200 years

Picketing is not just a challenge to the employer. It is also a physical, public manifestation, and often celebration, of strike action, directed towards fellow workers, potential strikebreakers, transport workers collecting and delivering material, and the general public. A picket line provides a space to overcome how the employer divides and fragments a workforce. It is liberating for ­activists to meet each other (sometimes for the first time) outside the confines and discipline of the working day in order to talk, socialise, argue and, in ­particular, organise.

Workers have always found ways to deal with the potential legal minefields ­associated with picketing. An early example was the 1818 Manchester cotton ­spinners’ strike, when mass pickets of several hundred would walk to a factory where they were not individually known to the employer, thus making them difficult to ­identify.106 Many court cases against pickets centred on supposed “intimidation” under the 1825 Combinations of Workmen Act. In the 1860s, picketing cases loomed large in the agitation to reform the law on strikes. The Criminal Law Amendment Act 1871, discussed earlier, temporarily worsened the situation and codified certain picketing “offences” that are still with us (such as “watch or beset” and “persistently follow”).107 In one celebrated case, 16 women, mainly wives of agricultural workers, and two with babes in arms, were imprisoned and sentenced to hard labour in 1873 for allegedly using threats of bodily harm against strikebreakers in Oxfordshire.108

The 1906 Trade Disputes Act allowed “peaceful” picketing, which ­emboldened many strikers, but the criminal law—the 1875 Conspiracy Act—was still in force. Pickets continued to be creative. In Merthyr Tydfil, South Wales, for example, police reported that individual strikers in a 1911 dispute would avoid approaching non-strikers “on more than one occasion during 15 or 16 days”, so as to dodge being charged with “persistently” following strikebreakers. The 1927 Trade Disputes and Trade Unions Act expanded the 1875 definition of “intimidation” to “causing in the mind…a reasonable ­apprehension of injury”.109 This was, however, difficult for courts to adjudicate, so the 1936 Public Order Act provided authorities with a satisfactory alternative that was increasingly used against pickets from the late 1930s.110

The question of picket numbers has long exercised governments. In 1911, a Home Office circular, “Intimidation During Trade Disputes”, was issued to chief constables at a high point in the so-called Great Unrest. It sought ways to handle the militancy, advising that it was “desirable” for police to contact strike leaders and establish who were appointed as pickets. These pickets “should be provided with badges by the union, which police should recognise and respect”. This would help police to judge whether the number of pickets was “reasonable and justified”. In practice, “watch committees”—local bodies overseeing policing, which have now been replaced by “police authorities”—complained that large pickets, or large crowds of supporters, made it difficult to find strikebreakers prepared to testify to charges of ­“intimidation” brought against picketing workers. The police’s ­circumspect policy towards pickets was abandoned during the 1921 economic slump.

In 1925, responding to the Shipping Federation’s difficulties in organising ­strikebreaking at the ports, a new Home Office circular to chief constables ­reproduced much of the 1911 advice. What was missing was a reference to the badging of pickets; instead, it included a reminder that the 1906 Trade Disputes Act’s section on picketing conferred no right to hold meetings on, or otherwise obstruct, the highway. After the 1926 General Strike, the cabinet committee ­responsible for drawing up the picketing section in the 1927 Trade Disputes and Trade Unions Act initially agreed on a maximum of four pickets at each entrance to a ­workplace, but it then decided to keep the issue of numbers “as vague as possible”. It also rejected the wearing of badges because, in its own words, this “would revive the popular misconception that a picket is a privileged person with rights and ­immunities different from those of the ordinary citizen”.111

During the successful 1959 national print strike, the police arrested ­strikers on two occasions after telling them that two pickets was sufficient outside small London printshops. The union used barristers to defend the pickets at magistrates’ courts, then appealed to the High Court, but it lost.112 The result of the first case, Piddington vs Bates (1960), which supposedly justified the police deciding on the appropriate number of pickets, was cited regularly in ­newspaper reports on picketing in the 1970s and 1980s and in government “codes of practice” since 1980.113

Mass picketing—and secondary picketing, when workers picket a workplace other than their own, even if in the same company—became a political issue during the 1972 miners’ struggle. The prioritisation of secondary picketing in coal mining can be traced back to the formation of the Barnsley Miners’ Forum in 1967. The Forum encompassed Labour and Communist Party activists as well as non-aligned militants. In 1969, it led action against a poor national ­settlement, organising a strike committee and sending out “flying pickets” across Yorkshire and beyond.114 With the official miners’ strike in 1972, ­secondary ­picketing took on a new meaning. Tens of thousands of miners travelled outside their colliery ­communities, and their ­pickets were eventually respected, successfully strangling all the power stations, rather than just the coal-fired ones, and thus forcing the government to capitulate.115 The symbolic closure of the Nechells coke depot in Birmingham, which went down in history as the Battle of Saltley Gate, resulted from thousands of engineering and car workers marching there to ­support the miners’ pickets. (As it happened, the coke depot had nothing to do with coal used for power ­stations.) District union bodies took the initiative, which they are now ­constrained from doing because unions have consciously centralised strike ­decisions, using anti-union laws as an excuse.116

By contrast, the four-week 1974 miners’ strike was controlled by the national union. From the start of January, the Tory government ordered industry to only work a three-day week in order to conserve fuel supplies. On the day a ­general ­election was called—on the theme of “who governs Britain?”—the union’s national strike committee decreed, “Selected targets will be picketed…24 hours a day… No more than six pickets at any site at any one time”.117 As the TUC had asked all unions to instruct members to respect miners’ picket lines, very little picketing was even required. Incredibly, no arrests were recorded, apart from one incident at 1am, when three pickets at a Nottinghamshire power station were arrested “for stealing power station fencing that they used on a fire”, presumably to keep warm.118

The Tory legislative attack on secondary picketing in 1980 was reacting not only to the effectiveness of mass pickets in the 1972 miners’, dockers’ and builders’ strikes, but also to the 1979 road haulage strike during the so-called Winter of Discontent. Described by a leading participant as “an official strike run on an unofficial basis”, the action saw the Labour government reach an agreement with the union to enable delivery of essential items.119 Despite this humiliating government concession, some local strike committees ­continued to decide what goods could be moved.

Picket lines were, however, not always respected. In one infamous example, Eric Hammond, who later became leader of the electricians’ union, sat in the first of a fleet of coaches carrying strikebreakers into the heavily picketed Isle of Grain power station in Kent in 1980.120 This helped make strikebreaking respectable in some quarters, and the same union performed an even more inglorious role during the Wapping dispute. The 1984-5 miners’ strike also challenged the sanctity of picket lines. With solidarity more limited than in the early 1970s, police were mobilised nationally against the miners, who were increasingly focused on stopping strikebreaking within their own ranks, leading to over 11,000 arrests.121

Yet, even the Tory government sometimes held back from encouraging the use of their new laws. In 1984, early in the year-long miners’ strike, the National Coal Board (NCB) won an injunction against the secondary picketing of working miners by striking miners from other collieries. As predicted, this resulted in increased picketing and a large demonstration when the injunction was served. Ned Smith, the NCB’s industrial relations director, advised dropping the legal action, fearing it would be seen as an attack on the union and thus might solidify resistance.122 Other nationalised industries, such as steel, rail and electricity, did not dare even initiate cases against the mining union’s “unlawful” secondary picketing.

In 1980, the Tories held back from banning mass pickets, instead issuing a “code of practice”. The current wording states “pickets and their organisers should ensure…the number of pickets not exceed six at any entrance to, or exit from, a workplace”.123 This is not law, but the code’s provisions are “admissible in evidence and taken into account in proceedings before any court”.124 After 1980, police sometimes used their discretion to limit pickets to six. In at least one case, the 2005 Gate Gourmet strike, an injunction enforced a maximum of six, with the union made responsible for policing this, though there was no limit on those congregating some distance away.

In today’s very different climate, picket lines are often theatre, sometimes ­carnival, with large numbers, lots of placards and noise. Especially in public ­services, they are aimed at canvassing the public and its support. Even the ­historically ­anti-strike Royal College of Nursing embraced the new mood when starting its first ever strike in England in December 2022. It advised, “As long as the picket is ­peaceful, you and your fellow striking colleagues can gather to picket with more than six people… Picket lines at hospitals are usually in place between 8am and 8pm”.125 Police have been conspicuous by their absence at most public sector picket lines during the 2022-3 strike wave, mainly confined to protecting blatant strikebreaking.126

The 2016 Trade Union Act requires picket supervisors, which has inadvertently returned to the 1911 position of badging pickets, with all the legitimacy that flows from that: “The supervisor must wear something that readily identifies him…as being the supervisor…for example, by way of wearing a tabard, armband or a badge”.127 Picketing is currently respectable, though it is yet to be stress-tested when dealing with organised strikebreaking.

Conclusion: fighting the 2023 Strikes Act

Workers have continually found ways of dealing with legal restrictions on ­striking. Until the 1870s, the sanctions they faced were exclusively criminal, mainly comprising fines and imprisonment. After that, any legal sanctions against strikers (apart from those for picketing “offences” and during some ­wartime emergency measures) were issued in the civil courts for breach of ­contract, and even these were used sparingly.128 In these early criminal and civil cases, it was the employer who had to start the legal process, and it was often in their interest to refrain from doing so due to potential repercussions.

When unions became the target of legislation with the 1971 Industrial Relations Act, employers were again often reluctant to start proceedings, reflecting the ­confidence of the trade union and shop stewards’ movements in a relatively ­buoyant economy. As economic conditions deteriorated for many workers in the 1980s, employers were more willing to use the law to reinforce their position, especially after Thatcher won her second election in 1983 and her anti-strike laws seemed likely to stay on the statute book for some time. The employers are at the centre of the 2023 Strikes (Minimum Service Levels) Act; however, given the revival of strikes, and the widespread belief that the Tories will lose the next election, employers may wish to abstain from exploiting this. Be that as it may, the new act’s presence on the statute book is a danger. If it is used, it has to be confronted head on.

The Tories had already targeted six “important public services” in the 2016 Trade Union Act, but their measures generally proved ineffective. With RMT rail workers engaged in several protracted disputes over the role of guards on trains, rail unions were picked out for special treatment. Minimum service level plans for the railways were set out in the 2019 Conservative election manifesto and the government’s legislative plans. Unions were to face extra liabilities, while the government would “ensure that sanctions are not directed at individual workers”. The pandemic halted this. However, with widespread strikes across the rail network starting in June 2022, a bill was presented to parliament in October that year.129 This targeted workers and their unions in the transport sector, but under a very ­convoluted ­procedure. As strikes then spread through public services, the ­government ­abandoned this narrow approach in favour of a wider and simpler bill.

The latest anti-strike law is what is called a “skeleton act”, giving the government power to introduce “regulations” in six “relevant services”: health, fire and rescue, education, transport, nuclear decommissioning, and border security.130 “Impact assessments” were published in February 2023 for passenger rail, ambulance, and fire and rescue. When the act was passed, the government announced that it would “now proceed with plans to implement minimum service levels” for these three groups.131 It was hoping for voluntary arrangements between employers and unions in the other named services, as indicated in February.132 It has now reacted to planned coordinated strikes by junior doctors and consultants on 20 September and 2-4 October by launching a consultation on proposed detailed minimum service levels in “essential hospital-based services”.133 One ­employers’ body, NHS Providers, has strongly opposed the legislation, stating it could “worsen industrial relations” and damage relationships with staff. It argues:

There is a risk that the imposition of minimum service levels may encourage unions to take more action short of strikes, such as working to rule. This…is more difficult to manage than strike action… Staff may feel compelled to call in sick en masse.134

The act took effect on 20 July 2023, but nothing will happen until regulations are drafted, consulted upon and finally laid before parliament. Will employers then use them? A government minister, Lady Olivia Bloomfield, has publicly confirmed that “it is a statutory discretion and not a statutory duty for employers…to issue a work notice”. She added, “It is…for the employer to ­consider any contractual or other legal obligations it has in taking this decision”.135 Even if an employer issues a “work notice” requiring named employees to work during a strike, it does not have to discipline or dismiss workers who do fail to comply (and who would then be debarred from claiming unfair dismissal ­compensation)—unless they want ­problems. Similarly, even if the employer believes the union has failed to take “reasonable steps” to “ensure” that all named union members comply with a work notice, it is under no ­compulsion to pursue the union in court (either for an injunction to prevent the strike or to seek damages after it).

More significantly, the “impact assessment” for passenger rail services includes the government’s own admission of the law’s potential to backfire:

According to unions, a…consequence…could be the increase in staff taking action short of striking, which is not prohibited by this ­legislation. Operationally, action short of strike is often difficult to mitigate and can require extensive planning, placing significant strain on the rail industry… In practice…mitigating widespread action short of strike effectively may prove impossible… Where services are reliant on staff working additional hours, for example, on a voluntary non-contractual basis, the risk of negative impact on the service is greater, especially as such action could continue even when minimum service levels are in place.136

There are other possible scenarios. There could be a mass withdrawal of goodwill or an outbreak of “blue flu” (named after mass absences from work in city police departments in the United States), as feared by NHS bosses. Rail companies may find an unofficial collective withdrawal of labour by union members named in a work notice hard to handle if it takes place on an official strike day. Do they dismiss all the unofficial strikers and risk the ­situation escalating beyond the notified dates of the official strike? Maybe workers could adapt the National Education Union’s action in January 2021, when large numbers of individual members submitted letters to their employers, refusing to work, claiming exposure to “serious and imminent” danger from Covid-19 and citing section 44 of the 1996 Employment Rights Act.

Since the bulk of this article was written, a draft statutory code of practice on “reasonable steps” was issued in late August, over seven months after the bill’s publication.137 Like all statutory codes, it is admissible as evidence in courts and tribunals.138 It makes for grim reading—and this is before we have any idea what will constitute a minimum service level in the affected services. The Tories believe that, after innumerable attempts at trying to suppress strikes by ­legislation, they have now discovered how to force unions to break their own strikes. If they get away with this, they will want to widen its application, either in the remaining term of this parliament (which may potentially run until December 2024) or, if they lose the ensuing general election, when they next form a ­majority government. As soon as the first “work notice” is issued under the new act, which will probably happen on the railways, there must be a storm of protest ­throughout the entire labour movement and beyond. Nothing less than the future of effective trade unionism in this country could be at stake.

Compared to the public campaign by the TUC against the 1927 Trade Disputes and Trade Unions Act, and the unofficial and official strikes against the 1971 Industrial Relations Act, union opposition has been muted in 2023. The strength of those earlier campaigns, and of the struggle against In Place of Strife in 1969, made it difficult for Labour to do other than repeal the ­offending laws. That pressure—and initiatives such as the TUC special conferences in 1969, 1971 and 1982—has been absent to date. Once again it seems that workers on the ground, rank and file ­networks, and the wider socialist movement will have to take the lead in challenging and defying the latest anti-strike law, as has so regularly been the case in the past.

Dave Lyddon is a retired industrial relations lecturer and a long-standing SWP member.

Notes