Why trade union legislation and the Labour Party are not responsible for the decline in strike activity

Issue: 158

Dave Lyddon

Making sense of the continuing low level of strike activity in the UK takes on greater urgency with the publication of provisional figures for 2017. These show record lows—by some margin—for two of the three main indicators: number of strikes and number of workers involved. The number of working days “lost” was one of the lowest.1

Mark O’Brien, who initiated the debate on the subject in this journal,2 now argues that “no contribution so far has been sufficiently historical”. Instead, a “correct historical approach” would show that “the trade union movement…has fundamentally changed in nature”. In the “era of legalism” since 1970, the trade union movement, “through its links with the Labour Party”, has “internalised” the “logic” of this “hostile legal environment”. Labour’s “reining-in the trade unions began in the 1970s”, as shown in the Grunwick strike and by the end of the 1970s there was “an unholy consensus” between Labour and the Tories “about the need for legal intervention and the use of powerful legislative instruments to ­diminish…[unions’] industrial power”.3

With Margaret Thatcher’s election in 1979:

The era of “legalism” in British industrial relations really began in earnest; the “legalism” in which we find the substantive answer to the question, “Why are there so few strikes today?”… By the end of the 1980s the unions had…moved away from a dominant rhetoric of industrial collectivism based on legal immunity, to one of trade union and individual workplace “positive rights”. In effect this represented an acceptance of the “legalism” that had so effectively undermined their industrial power.4

Although Mark discusses the changing “socio-legal framework” more broadly (particularly the lack of a safety net for dismissed strikers), the trade union movement’s “absorption of the logic of ‘legalism’” is, for him, “the very root of the problem”.5

At the core of his claim that “the trade union movement itself has fundamentally changed in nature (…not simply in industrial composition)” is that today “union leaders are unprepared to defy the law, and so are utterly reluctant to provide any type of effective leadership”.6 If this is his criterion for effective union leadership, it raises fundamental issues that I am not going to tackle here; perhaps others will. Suffice it to say that Mark’s argument results in certain “practical conclusions”. His frustration with the “legalism” of “the torpid world of official trade unionism”, with activists “mired in the practice of legalistic trade unionism”, leads him to prioritise a “horizontal” (dare we say rank-and-file), over a “vertical”, perspective.7

While we should thank Mark for reigniting this critical discussion on strikes, his conclusions are based on a flawed narrative. First, he misrepresents current legislation: he insists that unions fear employers’ claims for damages. In fact, injunctions (court orders) are a much bigger problem. And he confuses the legal status of unofficial strikes and strikers. Second, he exaggerates official union opposition to the 1971 Industrial Relations (IR) Act, before painting the unions as almost passive vessels into which the Labour leadership’s “strike-averse mentality” was poured during the 1980s. Yet there was more union defiance of legislation in the 1980s than in the 1970s. Third, the Labour Party did not publicly embrace the Tory agenda on strikes until late 1989, well after Mark suggests, and after a large reduction in strike numbers had already happened. Until then Labour had supported a wide freedom to strike.

Rather than trying to answer all of Mark’s points, I will particularly address the three outlined above; Mark’s picture of the Labour Party’s attitudes and actions needs to be discussed at some length, hence the necessary detail here. I then examine the impact of the 1980s Tory laws on strike activity. The collapse in strike numbers started before the first Employment Act in 1980 and was a collapse of unofficial strikes, untouched by legislation until 1990; official strikes actually rose during the 1980s. The law was not the primary factor in strike decline; its main effect was to compound workers’ existing labour market weakness. The preference for one-day (and discontinuous) action, which Mark notes in official strikes, predates Tory laws rather than being its consequence.

Finally, most strike activity for the last 25 years has been in the public services and (now privatised) utilities such as post and rail; this is a huge shift from the 1960s and 1970s when manufacturing (and sometimes mining) dominated strike figures. It has nothing to do with legal changes. The “tertiarisation of industrial conflict”, in other words its relative dominance in the tertiary (service) sector of the economy8 is not unique to the UK, but has ramifications in the consequent volume and form of strike activity. And it is this, now longstanding but not permanent, external change in the main site of UK strikes that needs closer scrutiny—not the alleged “internal alteration” that Mark identifies in trade unionism.9

The changing law on strikes up to 1979

There is no legal “right to strike” in the UK. Unions’ ability to function has had to be accommodated within the existing system of common (judge-made) law. Unions ceased to be unlawful associations in 1871, and parliament removed remaining criminal liability from strikes, known from that time as “trade disputes”, in 1875, though picketing remains subject to criminal sanctions. The courts then developed civil liability against unions through “torts” (civil wrongs other than breach of contract).10 The 1906 Trade Disputes Act granted unions “immunity” against legal liability for torts committed “in contemplation or furtherance of a trade dispute”; it reversed the effects of certain court judgements, especially Taff Vale in 1901, which led to unions paying substantial damages to employers.11 The Act, passed by the landslide Liberal government of that year, in response to the Trades Union Congress (TUC) and the infant Labour Party, defined trade disputes very broadly to encompass secondary action and inter-union disputes.

Except during the period of the Conservatives’ IR Act (1971-4), unions’ legal freedom to strike has continued to take the form of immunities from tort liability “in contemplation or furtherance of a trade dispute”—even under the 1927 Trade Disputes and Trade Unions Act (TDTUA, passed after the 1926 General Strike). This Act made strikes against the government and most secondary strikes “illegal” and created a new criminal offence (never prosecuted) of furthering an illegal strike;12 such strikes also lost their immunity against civil action.13 Labour repealed the TDTUA, which had also created new picketing offences, at its first opportunity (in 1946).

Labour Party policy up to 1970

For most of the Labour Party’s history it promoted or passed statutes to reverse court judgments, or to repeal legislation, that inhibited the right to strike. It was the political wing of the labour movement. Yet this did not stop the 1945 Labour government retaining wartime restrictions on strikes, with TUC support.14 But the government was reluctant to institute criminal prosecutions in peacetime and only did so to deal with Communist industrial militancy. In late 1950, ten gas fitters were fined but not imprisoned; then in April 1951 seven dockers were tried but acquitted, by which time a replacement arbitration order (without sanctions) was being drafted.15 Labour governments also declared states of emergency, allowing the use of troops during certain strikes.16

When Labour returned to government under Harold Wilson in October 1964, it continued supporting a wide freedom to strike while threatening sanctions against strikes in certain instances. It repealed the section of the 1963 Contracts of Employment Act that broke continuity of service for workers who had been on strike.17 Labour also reversed the effect of the Rookes vs Barnard (1964) case—which had resulted in three union officials paying £4,000 damages—by the 1965 Trade Disputes Act (against great opposition in the Tory-dominated House of Lords).18 Within six weeks of the 1964 general election the TUC had agreed to an inquiry (a royal commission) into “trade unions and their place in the law and national affairs”, its particular concern being the consequences of another court case, Stratford vs Lindley (1964).19 Against this record must be set Labour’s 1966 Prices and Incomes Act, which contained (without TUC opposition) reserve criminal sanctions (fines, never used) in the event of strikes to force wage rises banned by statutory incomes policy.20

According to Mark, the Donovan commission “fell short of recommending legislative action”.21 Yet Donovan made two important proposals on strikes. Under the initiative of Barbara Castle, secretary of state at the Department of Employment and Productivity (DEP), Labour’s January 1969 White Paper, In Place of Strife (IPOS), responded to Donovan. It rejected the commission’s majority view to remove immunity from unofficial strike leaders inducing breach of contract: “the government does not believe this would improve matters”.22 It did agree with the recommendation to reverse Stratford vs Lindley (1964): “inducement of breach of a commercial contract in the circumstances of a trade dispute should be protected in the same way as the inducement of a breach of a contract of employment”. It elaborated: “The alternative is to outlaw sympathetic action. But trade unions have a long tradition of relying on the solidarity of union members working in different places, and it would be wrong to attach legal penalties.23

There were, though, three “penal clauses” so politically toxic they nearly brought down the government. Two of them—conciliation pauses (or “cooling-off” periods) and ballots—had been rejected by Donovan earlier, as likely to be ineffective and possibly even counter-productive. These clauses reflected Labour’s dilemma between being a party rooted in the unions and being the governing party. So there was “a discretionary reserve power to secure a ‘conciliation pause’ [of 28 days] in unconstitutional strikes” (strikes in breach of disputes procedure)—to be used when “the effects were likely to be serious” and only after DEP conciliation had been tried. But, at the same time, IPOS argued that “in many strikes the employer is at fault” and should “withdraw the offending action till adequate discussion had taken place”.24 Second, where a “major official strike” was called, there should be a “discretionary power” to require the union(s) to hold a ballot (according to a union’s own rules) where there was “a serious threat to the economy and public interest” and doubt that the strike commanded members’ support.25 Third, the proposed Commission on Industrial Relations could make recommendations in unresolved inter-union disputes.26

If these measures were defied, an “Industrial Board” could impose “financial penalties”: on employers (for refusal to recognise a recommended union), on unions or on individual strikers, as appropriate—in the last, through attachment of earnings orders, thus ruling out imprisonment for non-payment.27 In March 1969, the House of Commons divided 224 to 62 to approve the White Paper as the basis for legislation, with the Tories tactically abstaining while many Labour MPs voted against or abstained.28 A short Bill was proposed in April, retaining two of the penal clauses.29 Opposition to fines was deep-rooted: it brought “the taint of criminality” to trade unions.30 The TUC argued that “the imposition of fines in industrial relations would make it possible to widen their use in future”.31 And engineering union president Hugh Scanlon made it clear that “the trade union movement would see to it that the fines were paid by sympathisers of the men concerned”.32

We celebrate the unofficial strikes against IPOS, but the conflict within Labour also needs considering. Douglas Houghton, chair of the Parliamentary Labour Party in 1969, had been general secretary of the tax officers’ union: “His attitude was identical with that of the moderate progressive members of the TUC General Council, of which he had himself for eight years been a member”. Despite agreeing that trade union reform was needed, Houghton believed that the Donovan approach was correct and Castle’s was misguided; he eventually said so.33 Bob Mellish, right-wing former official for the Transport and General Workers’ Union (TGWU) and also against the penal clauses, was the chief whip who told the cabinet in June that they could not carry the parliamentary party. This intervention saw any remaining cabinet support for Wilson and Castle drain away.

Labour then opposed the Tories’ 1970 Industrial Relations Bill in Parliament, with Castle a leading spokesperson. While this might seem hypocritical, there was a huge gulf between Labour’s limited legal tinkering and the Tories’ attempt to confine unions in a legal straitjacket.

Trade union resistance to the Industrial Relations Act

The biggest unifying force among TUC unions against the IR Act concerned registration of trade unions. Although Mark claims that registration had been “required” since the 1871 Trade Union Act, it had not;34 some unions, such as the NUT, were not registered. The IR Act made registered unions less vulnerable than unregistered ones to court action but allowed the new registrar to interfere with the former’s rule books. As all unions were put on a provisional register, a deregistration campaign began. The TUC general council divided into three groups: “extreme constitutionalists” who believed government must govern and unions should cooperate; “moderate constitutionalists” (the large majority) who believed repeal would come through the ballot box and supported passive resistance; and the “qualified constitutionalists”, prepared to defy this law. If unions registered, not only was “complete entanglement” with the institutions of the Act unavoidable but “the problem of repeal would be enormously complicated”.35 The TUC position (in March 1971) to “strongly advise” unions not to register was overturned (in September) to an instruction not to register, but it was difficult to see how this would hold.36

Mark’s view that union resistance to the IR Act was “absolute”37 does not fit the confused mix of cooperation and resistance. The IR Act was aimed at making unions police their own members but in 1972 the dockers’ unofficial ­“blacking” (boycotting) campaign to control containerisation of cargo led to court cases with unforeseen outcomes. When Liverpool dockers blacked (an “unfair industrial practice” under the Act) a transport company (Heaton), the latter took the TGWU to the National Industrial Relations Court (NIRC). The union boycotted the court (agreed TUC policy at that point, though soon relaxed) and was fined £5,000 for disobeying the court’s order. When the TGWU failed to persuade the dockers to lift the blacking, Heaton returned to the NIRC, which imposed a £50,000 fine and threatened to sequestrate the union’s assets. Jack Jones, TGWU general secretary, took this to the TUC general council. The latter’s inner cabinet stated “If the TUC decided to support the TGWU, the TUC itself might also become liable for contempt of court, and its funds, and the funds of its affiliates, thereby put at risk… It was therefore proposed that the TGWU should be advised that the fines should be paid”.38 With great difficulty Jones then persuaded his union executive to pay the fine.

The dockers still did not lift the blacking so Heaton returned to the NIRC, which gave the union an ultimatum. So the TGWU went to the Court of Appeal, arguing that it was not responsible for the actions of its shop stewards. To everyone’s surprise, the court agreed and the fine was set aside, destroying the government strategy and opening the way for legal sanctions against workers. Initially three London dockers (picketing a cold storage depot) were threatened with imprisonment (for contempt of court) if they did not attend the NIRC. With an unofficial national dock strike developing, the official solicitor (who normally represented defendants unable to represent themselves) got the government off the hook on a technicality.

Within weeks seven London dockers were summoned over picketing. When they refused to attend, the NIRC ordered them not to black or encourage others to black lorries at another depot. Five were arrested and sent to Pentonville prison for contempt of court. With a growing unofficial strike movement to free the dockers, the TUC General Council was forced into action. It called “on all affiliated unions to organise a one-day stoppage of work and demonstrations”.39 The participants at the meeting knew it would not be necessary because of a hurried ruling from the House of Lords later that day, that the union was responsible for the actions of its shop stewards after all—and so the fines should stand and the dockers be released.40

These events persuaded several large unions, including the electricians’ union, to deregister, torpedoing government plans. There were further flashpoints but the Act was effectively put on ice. Mark’s view that it “had been decisively defeated by the trade union movement”41 is true only up to a point: unofficial action had forced the unions’ hand. Even the engineers’ union, the most defiant against the Act, tried where possible to circumvent, rather than confront, it. Unregistered unions were liable to unlimited damages, so the union separated its assets, leaving little available for funding industrial action; it also decided against a national stoppage in 1972—to avoid the Act’s emergency ­provisions (cooling-off period and ballot).42 Such evidence should qualify Mark’s assumption that, unlike today, “union leaders were prepared…in the 1970s…to use their industrial strength”.43

Labour Party policy 1974-9

When Labour repealed the IR Act in 1974 its then minority government was thwarted in the attempt to widen the scope of secondary action, but it succeeded in 1976.44 It did, though, re-enact the IR Act’s provisions on unfair dismissal. So an employer who sacked all workers taking part in a strike would not face unfair dismissal claims, which could only happen if strikers were dismissed selectively.45 There had been no legal remedy (however limited) for dismissal while on strike before 1971, but the continuing lack of legal constraints in sacking whole workforces was to prove an important weapon for employers in the 1980s.

Mark’s view of Labour policy in this period is that:

The anti-strike stance of the Labour leaderships during the 1980s, evident during the years of the Wilson government of 1964-70, became cemented during the final years of the Callaghan government of 1976-9. This strike-averse mentality was transmitted into the perspectives and practical orientations of trade unions themselves, to varying degrees, over the course of the 1980s.46

But he does not explain why Labour was any more anti-strike in the 1970s than it had been during 1945-51. His one example is the Grunwick strike, 1976-8:

The Labour government…reeling under the impact of public sector strikes, sought to prove to the British establishment that they could do what Heath [Tory prime minister 1970–74] had been unable to do: control the unions. To this end, with the connivance of the TUC under the leadership of Len Murray, both secondary action and mass picketing in support of the Grunwick strikers were forcefully suppressed.47

The key events at Grunwick, in June and July 1977, included four weeks of daily mass picketing, during which 377 arrests were made, and 44 days of unofficial postal boycott of Grunwick mail at Cricklewood sorting office.48 The TUC and the strikers’ union, Apex, tried to de-escalate action at important points but cannot be accused of conniving with police violence against pickets. The TUC may have pressured the postal workers’ union to withdraw support from its Cricklewood members49 but there was no forceful suppression of this action; further, the government did not prosecute under the 1953 Post Office Act. Mark’s account is at odds with events; and the government was not “reeling under the impact of public sector strikes” that summer.

The TUC and the government issued a joint statement on 14 February 1979 (when it was indeed “reeling under the impact of public sector strikes”), which included “improving industrial relations”. There was “a strong recommendation that union rules should provide for strike ballots…at the discretion of the union”. An accompanying TUC guide also advised that, “save in exceptional circumstances”, unions should “confine picketing to premises of the parties to the dispute or the premises of suppliers and customers of those parties”—still a very broad view of picketing.50 Mark’s “unholy consensus”, between Labour and the Tories, was not hatched in the 1970s.

Tory strike legislation in the 1980s and 1990s

Six Acts of Parliament, passed between 1980 and 1993, progressively narrowed a lawful “trade dispute”.51 This onslaught was only possible because of the unprecedented sequence of four Tory election victories, aided by the defection of Labour MPs in 1981 to establish the Social Democratic Party; this split the anti-Tory vote, especially in 1983, in the UK’s “first past the post” electoral system. The historical resonance of these six Acts should be compared to the infamous “Six Acts” passed by an earlier Tory government in the aftermath of the 1819 Peterloo massacre to suppress radical political expression.52 But Mark omits some of the most significant changes, limiting his ability to explain the practical effect of the legislation.

These Acts’ main provisions on strikes can be summarised. The 1980 Act removed immunity from most secondary (sympathy or solidarity) action and strikes other than over terms and conditions (eg political strikes). Secondary picketing, at other than your own workplace, even if under the same employer, lost immunity. The restriction to six pickets has remained (since 1980) in a code of practice. The 1982 Act significantly narrowed a lawful trade dispute (from Labour’s very wide 1974-6 definition), and opened up unions to tort ­proceedings in their own name, if certain actions had been authorised or endorsed by the relevant committee or officer.53 These would take the form of injunctions or being sued for damages. It also relaxed the criteria for avoiding unfair dismissal claims by allowing some selectivity in the dismissal of strikers and selective re-engagement, after three months, of dismissed strikers.54

Workplace ballots for official strikes were introduced in 1984 with action taken within four weeks to retain immunity; these were replaced by postal ballots, with onerous notice requirements, in 1993 (not mentioned by Mark). The 1988 Act made industrial action to establish or maintain a closed shop (100 percent membership) unlawful and created a right not to be ­“unjustifiably disciplined” (such as fined or expelled) by a union for refusing to strike, for example.55 The 1990 Act removed protection from all secondary action and introduced union liability for unofficial action.

Injunctions and damages

Under the 1980 Act, unions retained immunity against injunctions and damages, so injunctions were targeted against members, stewards and local officials, mainly for secondary picketing and “blacking”. Unions’ immunity was removed, in 1982, though with maximum limits to damages (for economic loss), based on a union’s size (ranging from £10,000 to £250,000 per complainant, not increased since 1982).56 But claims for damages are not speedy (they require a full trial, which can take months to organise) and are rarely pressed as the employer wants to prevent the strike or stop it quickly. So, instead, employers go to a High Court judge for a court order, known as an interim injunction (interdict in Scotland), to prohibit a strike until a full hearing in court. The decision whether to grant an interim injunction is based on legal rules heavily weighted against unions. One complaint has been the use sometimes of the ex parte (without notice) injunction, where the union is not even aware of the court hearing. Failure to comply with an injunction is “contempt of court” (a criminal offence) and lays unions open to fines. If the contempt continues, union funds can be seized (“sequestrated”). Generally the injunction stops the strike.

Yet Mark never mentions injunctions; instead, he argues that claims for damages are unions’ key concern. For example:

So many conditions apply to the principle of immunity that the risks of being in breach of them and so bringing the danger of significant damages being exacted by employers, are high. In this situation all trade union leaders are extremely cautious about any type of action that might run out of their control and will avoid strike action wherever they can.

He continues: “The risks attached to local strikes are relatively low, because of their small size… It is national strikes that present the problem; because of…the scale of damages that might have to be paid. So where national strike action is difficult to avoid, trade union leaders will limit it to very short periods, often of just one day”.57 This is wrong. Unions’ leading officers and committees are most concerned about injunctions, now usually for minor apparent infringements of complex balloting requirements.58 These might result in having to rerun a ballot (with associated financial costs and delay to any action, as in the British Airways dispute of 2009-11).59 More likely a successful injunction will derail the strike and lead to a poorer outcome.

Unofficial action

The 1990 Act legislated on unofficial strikes. Mark mistakenly refers to such strikes as where “workers take action outside of the law, and sometimes in conscious defiance of it”; and labels such action as “unlawful”.60 But unofficial (since 1990, usually meaning unballoted) strikes are only unlawful (meaning unions are liable to court action) if unions do not “repudiate” them.61 Some of the Socialist Workers Party’s publications have, until recently, also wrongly called unofficial strikes illegal or in defiance of the law,62 generally meaning the criminal law: for example, “no workers were jailed” and “no one went to jail”.63 If you believe that unofficial strikes are outside the law, that would explain their greatly reduced numbers.

Unofficial strikers can be dismissed, all of them or selectively, without redress. This selectivity contrasts with official strikes where, generally, an employer could evade unfair dismissal claims by sacking all the strikers (though there is now a period of “protected” official industrial action—see later). Any industrial action taken by unions against dismissals of unofficial strikers is not protected in law, as a union’s repudiation notice to strikers makes clear. This must also state: “If you are dismissed while taking unofficial industrial action, you will have no right to complain of unfair dismissal”.64 While Mark is right to say: “Stewards can be lawfully sacked for leading unofficial walkouts, without being able to look for support from their union”, he is wrong when he adds “other than seeking legal redress for unfair dismissal or trade union discrimination”.65

Finally, unofficial strike leaders have sometimes been served with injunctions. When that happened to the “Sefton Two” Unison branch officers in 1994—to stop an unofficial strike from starting—they were ignored, and the relatively low fines of £1,250 each for contempt were easily paid out of a solidarity fund.66 In the same year Royal Mail won several injunctions against unofficial strikes, but then abandoned this policy. A later review noted: “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; but it has to date been unwilling to take such action, which might plainly lead to serious escalation”.67

Labour Party policy from 1980

Labour promised repeal of the 1980 and 1982 Acts in its 1983 election manifesto.68 But in 1986 a TUC-Labour Party Liaison Committee statement accepted secret ballots before strikes (repeated in the 1987 manifesto); though a 1986 TUC ­congress resolution excluded ballots before non-strike action. The joint statement also proposed widening rights to picket and prohibiting ex parte injunctions.69

Although the TUC was calling for enhanced individual employment rights by the late 1980s this was not at the expense of collective rights, as Mark suggests.70 In 1989 its priorities included stopping employers sacking strikers and blocking companies from restructuring to make strikes unlawful (as at Wapping). The September Congress that year went further and agreed with the TGWU call for repeal of the Tory laws and a new framework enshrining the “right to strike including immunity in tort”.71 This position was out of line with the Labour leadership’s understandings with TUC officials to change policy on industrial action, through Labour’s “Policy Review” of 1987-90.72 To limit damage to Labour’s electoral prospects, union concessions were forced through in time for the Labour conference a few weeks later: in return for specialist labour courts (without the power to sequestrate a union’s entire assets), a union would remain liable for unlawful action.73

Labour’s 1992 manifesto boasted: “There will be no return to the trade union legislation of the 1970s. Ballots before strikes and for union elections will stay. There will be no mass or flying pickets”.74 This prefigured the 1997 New Labour programme, which also rejected secondary action.75 But despite the manoeuvring of TUC officials, the TUC congress majority was generally still in favour of repealing the Tory legislation.76 Mark’s argument about the trade union movement by the end of the 1980s “internalising” the “logic” of the “hostile legal environment” through its “links with the Labour Party” does not fit the facts.

Back in government, Labour, in its 1999 Employment Relations Act, introduced an eight-week period of “protected industrial action” for official strikers, during which their mass dismissal would be deemed unfair; this was extended to 12 weeks in 2004.77 Unofficial strikers remained unprotected, as shown by the sackings at Gate Gourmet at Heathrow airport in August 2005. This dispute led, at the Labour conference, to support for secondary action. Tony Woodley, TGWU general secretary, explained “We are not calling for wildcat action…[or] flying pickets”. A ballot would be needed and only when there was “a close connection between those involved”. Trade and industry secretary Alan Johnson retorted: “Back…[in the 1970s] this party supported secondary action and opposed the minimum wage. Now it’s the other way round and that’s how it needs to stay”.78 Mark claimed, presumably on the strength of this resolution (and an earlier TUC vote), that “since 2005 the formal positions of both the TUC and the Labour Party have been to repeal the anti-trade union laws”.79 But this would misunderstand policy-making under New Labour.

Labour saw the strike question as mainly settled and was silent on it in the election manifestos of 2001, 2005, 2010 and 2015. There were two private members’ bills on the subject during this period. Under Labour, John McDonnell presented an ambitious Trade Union Rights and Freedoms Bill in 2006, but there was no second reading and the Bill fell.80 In 2010, during the coalition government, he presented a two-clause Lawful Industrial Action (Minor Errors) Bill; there was a second reading debate but the Bill was not pursued.81 Under Jeremy Corbyn, Labour’s 2017 general election manifesto retained this minimal approach by only calling for repeal of the 2016 Trade Union Act.

Strike activity since 1979

Simon Joyce has argued in this journal that “strikes declined in the 1980s due to…traumatic economic changes, increasingly tough new laws to curb industrial action, and chastening defeats of major unions”.82 Mark agreed that these played a role, but insisted that “legalism” provided the substantive answer.

Employers’ offensive and economic factors

Tracking the fall in strike activity should help to bring out the “relative weight”83 of the different factors responsible. My view is that the most strike-prone industries in the 1960s and 1970s (coalmining, motor vehicles, shipbuilding and the docks) were all subject to radical product-market restructuring in the 1980s, involving massive job loss and major changes in working practices. The 1980s were years of “coercive pacification” when employers “exploited the new opportunities to challenge the former balance of power…sometimes brutally, sometimes with sophistication”.84 This is aptly described as “class struggle from above”,85 but that aspect of the period is not stressed enough now. The passing of time has left symbolic landmarks—such as the miners’ strike (1984-5) and Wapping (1986-7)—but has tended to hide, in the historical undergrowth, the relentless (and often ferocious) attack on large numbers of mainly manual workers during the 1980s and well into the 1990s.

The miners’ strike was the extreme example. Ned Smith, industrial relations director of the National Coal Board (NCB) at the time, condemned Thatcher’s patronising view that “the British mining industry and the people who worked in it represented a system of outdoor relief”. His account of the strike, written in 1986 but not published until 1997, is revealing: “If the miners as a community had to be humiliated and driven into total defeat then clearly what happened was correct. If, however, the strike…[had] been handled only as an industrial dispute it could…have been brought to a conclusion at the very latest in September [1984] with an agreement satisfactory to management”.86

The employers’ offensive had started before Thatcher. For example, during 1977-8, there were at least 80 lockouts (where workers were literally locked out of their workplace, usually for not agreeing to an employer’s terms).87 The shorter working week national dispute in engineering during autumn 1979 was the largest private sector dispute by days “lost” since 1926. But after 1.5 million workers in thousands of companies had taken part in three one-day and five two-day stoppages, there were 108 retaliatory lockouts.88 Michael Edwardes, the British Leyland (BL) car giant boss, circumvented shop stewards through company-organised ballots four times between 1977 and 1979, before sacking BL’s senior trade unionist Derek Robinson. Long unsuccessful strikes at Peugeot factories in Coventry and at Vauxhall Ellesmere Port in autumn 1979 gave managers the opportunity to enforce their will on the return to work. In 1980, a “slaves’ charter” was imposed on the BL Cars workforce. A partial strike escalated when the TGWU made it official. The company threatened to dismiss all 18,000 strikers and withhold back pay, bonus and redundancy money. The TGWU recommended a return but no unions signed the new conditions document. In 1981 management threats to liquidate parts of the same company and dismiss all strikers without redundancy money led to a pay strike of 46,000 workers being abandoned.89

Employers took advantage of the deep economic recession. The total unemployed rose from 1.26 million in December 1979 to 2.37 million in April 1981, hitting three million in September 1982 and staying there for several years.90 From 1979 to 1980 the sharp drop in strike numbers (2,080 to 1,330) was particularly concentrated in manufacturing (1,289 to 612; see table 1). Extensive plant closures and job losses in the early 1980s were accompanied by widespread short-time working and a halving of overtime, reflecting a collapse of product markets. Any possible legislative effects (from the 1980 and 1982 Acts) on strike numbers were swamped by economic factors.

Table 1: of strikes in main industry groups, 1979-94

Source: Employment Gazette, annual articles.




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Public services


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*MESV = metals, engineering, shipbuilding and vehicles.
Dates of implementation of strike legislation: 8 September 1980; 1 December 1982; 26 September 1984; 26 July 1988; 1 January 1991; 30 August 1993.

Legal factors

Mark claims the 1984-5 miners’ strike was “the last major example of an industrial battle fought against the legalistic terms upon which such disputes were now to be conducted”.91 But it was not the last major battle and stands out by how little the Tories’ legislation was used. The NCB won an early injunction against secondary picketing of other miners which resulted in increased picketing and a large demonstration when the injunction was served. The NCB industrial relations director cautioned against pursuing the legal action, amid fears it would solidify resistance, and it was dropped.92 Other nationalised industries—steel, rail, electricity—did not dare start cases against the National Union of Mineworkers’ “unlawful” secondary picketing. The government turned to mass policing and the criminal law. A civil case brought by a transport contractor led to South Wales NUM’s assets being sequestrated; and working miners took cases, claiming breach of the NUM rule book, that led, in October 1984, to NUM funds being seized or frozen.93

A TUC conference in 1982 had agreed the “Wembley principles” of opposition to the 1980 and 1982 Acts. But TUC general secretary Len Murray clarified: “There is no question of the TUC setting out to break or encouraging members to break the law. There is no question of unions or members getting blank cheques for support from the TUC”.94 Many injunctions were served for defiance of legislation.95 The NGA print union in the Stockport Messenger dispute (where damages were also paid) in 1983, the SOGAT print union at News International in Wapping in 1986 and the seafarers’ union in the P&O European Ferries dispute at Dover in 198896 all faced a series of fines before their funds were seized (sequestrated) for ignoring the courts. In the Wapping case, SOGAT purged its contempt after three months and ordered members not to “black” News International titles. Some 13 months into the dispute, the bosses threatened unlimited damages for “economic torts” and sought a second sequestration of SOGAT’s assets. Given one day’s notice to comply, SOGAT called off all action; the other unions followed suit.97

Perhaps the last “major” dispute seriously hobbled by the Tory laws saw the dockers sink in a legal quagmire in 1989. The great London dock strike of 1889 had been the most public sign of the rise of unskilled labour. In its centenary year there was the haunting symbolism of the return of casual labour, union de-recognition or emasculation in many ports, and dismissal of all the Tilbury shop stewards.98

In the first major case (under the 1984 Act) against an unballoted national official strike (called by a joint committee at Austin Rover) that had started on 5 November 1984, “the unions lay like skittles bowled out into the corners of the industrial arena”.99 The company secured injunctions against seven unions, though not the AUEW (Engineering and Foundry Sections) which disowned the strike. A week later, it began contempt proceedings but dropped these on 19 November except against two unions. By then half the workforce had returned; the rout was complete two days later. On 26 November the TGWU was fined £200,000 but refused to pay. The court sent an obscure official, the “Queen’s Remembrancer”, to collect the fine from a union account. AUEW-TASS, also found in contempt, was not penalised.100 The (nationalised) company filed damages claims against all eight unions—“It is unlikely that Austin Rover’s decision…was taken without consultation with the government”101—but dropped them three years later. The case had an important effect on several unions, with the AUEW removing its district committees’ power to authorise strikes six months later.

As significant was its effect on the shop floor. In the first nine months of 1984 at the Cowley assembly plant there had been 160 unofficial stoppages (many too small or short for inclusion in government figures). Workers were now warned that they would be instantly dismissed if they took unofficial action. Across the company in 1985 only 0.05 percent of working time was lost to strikes compared to 6.3 percent in 1984.102 This would have contributed to the sharp drop in manufacturing strikes (from 690 to 388; see table 1) between 1984 and 1985. Another factor, discussed by Simon Joyce, would have been the “demonstration effect” where “each defeat discourages others from the risk of a strike”.103 The Austin Rover debacle in November 1984 would have been compounded more generally by the miners’ defeat in March 1985.

Coal industry strikes in 1986 and 1987 returned to the level of the early 1980s. But in 1987 a new discipline code, with draconian penalties, provoked two wide-scale stoppages and unofficial pickets were threatened with dismissal.104 Mining strikes fell further with the accelerated contraction of the industry. Elsewhere the threat to withhold redundancy pay in rundowns or closures of workplaces was a potent factor in stopping resistance.105 Factory survival plans, with poorer working terms and conditions, were driven through by threats of closure.106 More generally, dismissals of strikers, allowed by law, flourished. One source counted 45 instances (and 38 threats) in three years from mid-1986.107 By then 5,500 News International employees had been sacked at Wapping; the other big example in the 1980s was the P&O ferry workers. Mass sackings of strikers continued, including the Liverpool dockers, 1995; Hillingdon hospital cleaners, 1995; Magnet (Kitchens), Darlington, 1996; Critchley Labels, near Newport, 1997; Tameside Care Group, 1998; LSG Lufthansa Skychefs, 1998; Friction Dynamics, Caernarfon, 2001; William Cook foundries, Sheffield, 2001; and Gate Gourmet in 2005.108

Unofficial strikes

Through the 1960s and 1970s some 95 percent of recorded strikes were unofficial (out of an annual average of 2,520); there were, for example, an average 150 official strikes each year during 1970-75.109 In another 5-10 percent of strikes, some form of dispute benefit or ex gratia payment was paid without prior approval, but most stoppages were too short to come to unions’ notice or to qualify for strike pay.110

Even after September 1984, when the law required ballots (usually at the workplace) for official strikes, unofficial stoppages sometimes featured in the build up to official action. For example, they accompanied pay negotiations at Ford from November 1987. In January 1988 the Ford unions held mass meetings immediately prior to workplace ballots (common in well-organised workplaces); another unofficial walkout then preceded the official strike in February.111 A strike of the whole Vickers shipyard workforce at Barrow in 1988 started unofficially and a mass meeting agreed to hold secret ballots (by each union) but stay out while they took place.112 On London Underground in 1989, unofficial one-day strikes preceded a ballot which then led to official one-day strikes.113 Actions such as these enraged the Tories. Justifying legislation on unofficial strikes, the government also gave the example of a provincial newspaper dispute. The courts had stopped a print union taking “blacking” action but a full-time official and branch officers had encouraged it “by nods, winks, the turning of blind eyes and similar clandestine methods”.114

The government had stopped systematically collecting data on unofficial strikes in 1981. While it provided some information in 1989, this exaggerated the scale of unofficial action (certainly among those strikes that met the government’s minimum criteria for inclusion).115 A parliamentary written answer provided more detail. This showed that in 1987, 291 out of 296 coal strikes were unofficial, in 1988 it was 141 out of 154, and in 1989 (January to November) 138 out of 146 (whole year). In motor vehicles, the equivalent figures were 80 out of 100, 39 out of 56, and 42 out of 56. In “other transport and communication”, which included the Post Office, the figures were 91 out of 100, 61 out of 86 and 23 out of 43. Therefore, in these three industry groups, most recorded strikes were unofficial. In 1987 the seven most strike-prone industry groups provided 491 unofficial strikes out of the total (official and unofficial) of 1,004 for the whole economy. In 1988, it was 273 out of 770; and in 1989, 234 out of 693.116

These (buried away) figures show that unofficial strikes were declining rapidly in the late 1980s. They fell further in 1990 as coalmining strikes disappeared along with the industry (table 1). The majority of all strikes were now official. Under the 1984 Act official strikes could generally be organised (through workplace ballots) in less than two weeks. The additional notification and postal ballot requirements of the 1993 Act extended this by about another three weeks.117 The fall in strikes in the early 1990s (table 1) was not a result of the 1990 Act but of the continuing decline of strike-prone industries and another recession, which saw unemployment more than double to peak at 3 million in 1993.118 Interestingly, the 1993 Act’s first full year of operation (1994) saw no reduction in total strikes (table 1).

A final observation: the absolute number of official strikes in the late 1980s was much higher than it had been in the 1970s. Labour market weakness would have encouraged more groups to seek union protection before action over non-perishable issues. Whatever factors produced this result, Tory legislation cannot have been one of them.

The current location of strikes and its consequences

Legalism (and Labour’s embrace of it) did not undermine workers’ industrial power as Mark insists. Instead, Tory laws compounded workers’ labour market weakness in the strike-prone sectors of the economy; hence the precipitate fall in unofficial strikes, a prominent expression of economic power. In the “sheltered” public services, with relative job security, strikes (mainly official) rose through the 1980s (table 1) as union organisation deepened. Strikes among white collar public service workers had been almost unknown (apart from teachers) before the 1970s. The main civil service union, in 1969 (and in 1978), and the local government officers’ union, in 1970, developed strike policies—ruling out indefinite national action in favour of national “demonstration” stoppages, selective and sectional action. Generous strike pay would generally be given in non-national disputes. Variants of these tactics had already been used in private-sector national disputes during the 1950s and 1960s.119 So Mark’s point that union leaders today are extremely cautious and will limit national strike action to short periods, often one day, is not a result of Tory laws.

In passenger transport, short strikes are often more disruptive—and therefore more effective—than longer ones (when passengers are forced to find alternatives). Transport strikes also immediately affect revenue streams (as do postal strikes). Not so in public services where revenue comes from general taxation and strikes do not generally have the same immediate economic consequences. While few public service occupations have not by now been involved in some official strike action, unofficial action is a different matter. The nature of many public sector jobs (especially those of professionals) means they are much less likely to walk out without notice. Refuse collectors, some other manual workers, and some routine white collar workers can do this. But teachers and health professionals, even healthcare assistants, generally will not. Unofficial strikes in Britain have historically been concentrated in certain, mainly manual, highly unionised occupations (particularly in mining, manufacturing and transport—and, since the 1980s, postal services), with significant “workplace bargaining power”.120 At the moment they are rare outside Royal Mail and the engineering construction industry.

The concentration of industrial conflict in public and private services today is an international phenomenon in “mature” industrialised economies, irrespective of legal systems. “With few exceptions”, the downward trend in strike activity “has proved resilient to different economic and political conditions and has been without significant reversals even when the economy has undergone strong growth”.121 Any increase in the number of strikes in the service sector has not “matched the decrease in other sectors”, hence much lower strike numbers overall. This is not just a British problem, so why should there be a uniquely British explanation?

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


1 Provisional figures (21 February 2018) of 67 stoppages beginning in 2017; the previous lowest was 90 in 2010—ONS, 2018a. The provisional number of workers involved in stoppages during 2017 was 32,500—ONS, 2018b. The previous lowest was 93,000 in 1998 and 2005—ONS, 2017. Provisional working days “lost” in 2017 was 276,100—ONS, 2018b.

2 O’Brien, 2014.

3 O’Brien, 2018, pp155 (emphasis in original), 160, 163, 161.

4 O’Brien, 2018, pp161 and 164 (emphasis added).

5 O’Brien, 2018, p165.

6 O’Brien, 2018, pp155, 167 (emphasis added).

7 O’Brien, 2018, pp170-172.

8 Bordogna and Cella, 2002, pp599-602.

9 O’Brien, 2018, p155 (emphasis in original).

10 Wedderburn, 1986, pp16-25. The main relevant torts now are inducement of breach of contract, interference with economic interests, civil conspiracy to injure, civil intimidation. Anyone organising or threatening a strike, for example, commits the tort of inducing a breach of contracts of employment.

11 Webb and Webb, 1920, p602, estimated that at least £200,000 was spent in damages and legal expenses from judgements against unions and officials in this period.

12 O’Brien, 2018, p157, claims that the attorney general could “sequester” (seize) union funds. Instead the attorney general could apply for an injunction to stop union funds being spent on an illegal strike (TDTUA 1927, section 7), though no application ever happened.

13 While unions became more cautious, their economic weakness in the late 1920s and early 1930s depressed strike activity anyway. See Williamson, 2016, pp59-73 for an assessment of the Act; pp74-82 for its text.

14 Disputes had to be reported to the Ministry of Labour and strikes “prohibited” for 21 days. If a dispute could not be conciliated it was sent to arbitration. There were 109 prosecutions and 6,300 workers prosecuted for breach of this during the Second World War—Fishman, 1999.

15 Fishman, 1999, especially pp51-71.

16 Jeffery and Hennessy, 1983, pp143-221 for 1945-51 and pp229-233 for the 1966 seafarers’ strike; Morris, 1986, pp100-106.

17 Redundancy Payments Act 1965, section 37.

18 The Times, 22 January, 3 and 20 August, 1965.

19 The Times, 26 November 1964.

20 Prices and Incomes Act 1966, section 16(4). Barbara Castle later said this section was not “penal legislation to undermine and weaken the unions” but “reserve powers” where “there was deliberate intent to pressurise an employer into committing an offence”—The Times, 26 June 1968.

21 O’Brien, 2018, p159.

22 Castle, 1969, para 88; see Donovan, 1968, paras 798-801, 804.

23 Castle, 1969, para 100 (emphasis added); see Donovan, 1968, paras 893-894.

24 Castle, 1969, paras 93-94 (emphasis added).

25 Castle, 1969, para 98.

26 Castle, 1969, para 60.

27 Castle, 1969, para 62.

28 House of Commons Debates, 3 March 1969, columns 36-166.

29 See for example TUC, 1969, p211. See also pp202-225 for negotiations with the government after Donovan and over IPOS, and pp229-246 for general council report to June 1969 special congress.

30 Quoted in Morgan, 2001, p301.

31 TUC, 1969, p212.

32 Tyler, 2006, p472.

33 See Jenkins, 1970, for a blow-by-blow account of IPOS; p118 for quote.

34 O’Brien, 2018, p160.

35 Moran, 1977, pp125-128.

36 Darlington and Lyddon, 2001, pp18-21; for the dockers’ campaign, see chapter 5 (written with Fred Lindop).

37 O’Brien, 2018, p160.

38 Quoted in Darlington and Lyddon, 2001, p150.

39 Darlington and Lyddon, 2001, pp173-174, for quotes from TUC records.

40 The Supreme Court now carries out the former judicial functions of the House of Lords.

41 O’Brien, 2018, p161.

42 Darlington and Lyddon, 2001, pp102-103.

43 O’Brien, 2018, p155 (emphasis added).

44 Trade Union and Labour Relations Act (TULRA) 1974; Trade Union and Labour Relations (Amendment) Act 1976.

45 Ewing, 1991, pp40-44.

46 O’Brien, 2018, p164 (emphasis added).

47 O’Brien, 2018, pp163-164 (emphasis added).

48 See Dromey and Taylor, 2015; Elias, Napier and Wallington, pp29-58; Geary, 1985, pp83-88.

49 Though the union’s historian does not note this—Clinton, 1984, pp585-594.

50 TUC, 1979, pp273-274; TUC and the Government, 1979, in TUC, 1979, p393, para 13; TUC Guide, Conduct of Industrial Disputes, in TUC, 1979, pp400-401, paras 5 and 9.

51 The 1980, 1982, 1988 and 1990 Employment Acts, 1984 Trade Union Act, and 1993 Trade Union Reform and Employment Rights Act. The first five, and earlier relevant legislation, were combined into the Trade Union and Labour Relations (Consolidation) Act 1992, TULR(C)A, containing no new law. Relevant sections of later statutes, such as the 1993 Act and the 2016 Trade Union Act, amend TULR(C)A. For post-1979 collective and individual labour legislation, see Institute of Employment Rights, 2017.

52 See, for example, Thompson, 1968, p768.

53 Wedderburn, 1986, p636, table 1, identifies the common law torts, the immunities under TULRA 1974-6, and restrictions of these under 1980 and 1982 Employment Acts.

54 Ewing, 1991, pp44-46.

55 O’Brien, 2018, pp161-162, wrongly suggests this was policed by the Commissioner for the Rights of Trade Union Members; it was enforced by industrial (now employment) tribunals. He comments about this “enshrining strike-breaking as a legal right” but there was no general legal prohibition on strike-breaking.

56 Less than 5,000 members, maximum £10,000 damages; 5,000-24,999 members, maximum £50,000; 25,000-99,999 members, maximum £125,000; 100,000 or more members, £250,000: TULR(C)A, section 22(2).

57 O’Brien, 2018, p166.

58 Even threats of injunctions can derail action—Gall, 2017.

59 Ewing, 2011.

60 O’Brien, 2018, pp166 and 169, (emphasis added).

61 TULR(C)A, section 21(3).

62 For unofficial strikers who “defied the law”, see Kiernan, 2015; for unofficial action as “illegal”, see Thomas, 2017.

63 Mackin, 2014; Kiernan, 2015.

64 Lord Strathclyde, a junior minister, confirmed a “period of grace”, which “lasts for the rest of the day on which the union decides to repudiate the action and for the whole of the next working day”. Otherwise a union member would be “liable to selective dismissal from the moment” that the union “decided to repudiate the action”—House of Lords Debates, 26 July, 1990, column 1628. See TULR(C)A, section 237(4).

65 O’Brien, 2018, p166 (emphasis added).

66 Lavalette, 2001.

67 Sawyer, 2001.

68 Minkin, 1991, p435.

69 TUC, 1986, pp395-409 for TUC-Labour Party Liaison Committee and “People at Work: New Rights, New Responsibilities”; pp680-681 for TUC resolution; Labour Party, 1987; Minkin, 1991, pp435-437.

70 O’Brien, 2018, p164.

71 TUC, 1989, pp45-48, “Employment Law: TUC Priorities”; pp576-578 for resolution.

72 Minkin, pp469-472.

73 Hughes and Wintour, 1990, pp143-152. Labour opposed Tory proposals on unofficial strikes—McIlroy, 1991, p180.

74 Labour Party, 1992.

75 Labour Party, 1997.

76 See, for example, TUC, 1994, composite resolution C4; TUC, 1995, composite C12; TUC, 1996, composite C11.

77 TULR(C)A, section 238A.

78 Financial Times, 27 and 28 September 2005.

79 O’Brien, 2018, p167 (emphasis added).

81 See Keter, 2010, for a research paper on the Bill.

82 Joyce, 2015, p140.

83 O’Brien, 2018, p153.

84 Hyman, 1989, pp199-200.

85 Miliband, 1989, pp121-126.

86 Smith, 1997, pp7, 221.

87 Cliff, 1979, pp15-18.

88 Beecham, 1981, p51.

89 Lyddon, 1990, pp55-57, 67.

90 Seasonally adjusted figures—Employment Gazette, December 1982.

91 O’Brien, 2018, p164.

92 Smith, 1997, p206.

93 Winterton and Winterton, 1989, pp153-157.

94 TUC, 1982, pp349, 366, 408.

95 Joyce, 2015, p133, gives figures.

96 Marsh and Ryan, 1989, pp228-247.

97 Bain, 1998.

98 McIlroy, 1991, pp170-179, gives the legal difficulties, and notes the strike’s collapse was connected with dockers’ fears of losing redundancy pay. See Turnbull, Woolfson and Kelly, 1992, pp234-242, on the stewards’ dismissal and Mankelow, 1996, on the subsequent industrial tribunal case.

99 Wedderburn, 1986, p78.

100 Hutton, 1985, pp260-261.

101 Guardian, 22 January 1985.

102 Lyddon, 1990, pp66-67.

103 Hyman, 1989, p226.

104 Gibbon and Bromley, 1990, pp79-80.

105 For example provincial newspaper printers facing new technology—Smith and Morton, 1990, p114.

106 For example IBC Vehicles, Luton, in 1987—Lyddon, 1990, p63.

107 Denham, 1991.

108 For details, see Lyddon, 2009, pp334-336.

109 Gennard, 1977, pp100-101.

110 Eldridge, 1968, p68.

111 Lyddon, 2015, p738.

112 Marshall, 1989.

113 Bagwell, 1989, pp27-31; McIlroy, 1991, pp166-170.

114 Employment Department, 1989, note to para 2.7.

115 Employment Department, 1989, paragraph 1.6. “No distinction” was made after 1981—House of Commons Debates, 28 July 2000, column 1017W (written answer). Strikes involving fewer than ten workers or shorter than one day are excluded unless total days “lost” are 100 or more.

116 House of Commons Debates, 23 January 1990, column 629W (written answer). The aggregate figures include construction, railways and industry groups encompassing shipbuilding and docks. Data on unofficial strikes are compared with total strike figures from Employment Gazette, annual articles.

117 Undy, Fosh, Morris, Smith and Martin, 1996, p210.

118 Leaker, 2009.

119 Lyddon, 1998.

120 A term used in Silver, 2003, p13.

121 Bordogna and Cella, 2002, p605.


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