Breaking points and rank and file moments: reaching the limits of “legalism” in industrial action

Issue: 161

Mark O’Brien

My article “What has happened to the British Labour Movement, and what does it mean for the left in the Unions?”1 has attracted two critical responses in this journal.2 I am grateful to the authors of these papers for their comments and observations. I am also grateful to the journal’s editorial team for the opportunity afforded me to correct what my critics have said about my position, and to give further clarifications about the orientation I have proposed and its underpinning analysis.

What has happened to the British labour movement?

In my article I offer an answer to the question: “Why are there so few strikes?”. It is repeated here in brief. During the decades before and after the First World War a system of accommodation of the working class was put in place with a socio-legal framework underpinned by principles of social welfare and tolerance of trade unions. For unions this meant self-regulation and immunity from punitive legal action with respect to strikes. Since then, this system has been substantially dismantled and amended. The type of state and court intervention in the operations and behaviour of trade unions that emerged within a new socio-legal framework is termed “legalism”. The era of legalism straddles ­successive Conservative and Labour governments, in faltering fashion from the late 1960s onwards, and then consistently from the late 1970s. During the early 1980s, and especially after the 1984-5 miners’ strike, unions internalised the principle of legalism. Over the same period a range of social protections have been removed for working class people. These changes have raised the levels of risk attached to taking strike action for both unions and for individuals: for unions, with respect to legal action if their members infringe the law in some way; for members with respect to their employment if they strike outside the protection of the law. This means that national leaderships are averse to leading prolonged and open-ended strikes, worried at the possibility that members may become uncontrollable so compromising the union legally. It also means that they enjoy a greater degree of control over their members than ever before. The situation today is one of sustained and historically low strike statistics; but also of high levels of working class grievance and frustration, so making class relations potentially volatile.

This is reduced in Dave Lyddon’s critique of my argument to two elements: there are few strikes today because of the Tory anti-trade union laws; and because the Labour Party has influenced a passive trade union movement into accepting them. This simplification is so severe that it is really a misrepresentation.

Responding to a critique

Before I join battle with Dave, I would like to note that there are extensive parts of his article that complement and even add substance to the historical account that underpins my analysis. Dave recognises for example, that from the early years of the 20th century, during peacetime and up until the late 1960s (with exceptions) unions enjoyed legal immunity from the possibility of employer claims for damages following strikes. He explains also that this began to change towards the end of the Harold Wilson Labour government of 1964-9. In Dave’s account there is a period of transition through the 1970s, characterised by inconsistencies in state policy across successive governments. The 1980s of course saw the establishment of a hostile legislative environment for trade unions that entrenched legalism. This familiar narrative is common to both our pieces.

Dave chooses three areas of my article upon which to focus his criticism. Firstly, he says that today it is injunctions that trade unions fear in relation to the legal aspects of taking industrial action, rather than the possibility of financial consequences. Of course, breaches of injunctions risk fines and the seizing of assets. They also expose trade unions to the possibility of employer claims for damages.3 Regardless, this does not address the central area of discussion. Secondly, he wishes me to be precise about the legal status of unofficial action, pointing out that it only becomes unlawful if an employer is successful in obtaining an injunction. The real point is of course that industrial action that occurs without a prior ballot, in the circumstance of a “walk-out” for example, is taken without legal protection from such an application. Again, the argument is a technical one that does not impinge on the substance of our debate. Thirdly, he argues that I exaggerate the level of trade union opposition to the 1971 Industrial Relations Act. Here he draws attention to the contradictions that occurred in the range of responses to the Act, and to the nuances and complexities of how the TUC and the trade unions behaved at the time. This point has little if any impact for the main areas of debate, since as he explains, ­opposition spanned the political register from left to right. These are all then tangential to my analysis.

Of course, what Dave’s piece doesn’t offer is anything helpful towards my account of social protections for workers; because this is the half of my analysis that he completely ignores. This brings me to my central objection to Dave’s article and the approach he adopts in it; his methodology and its implications for his line of argument.

The consequence of Dave’s avoidance of the core of my analysis, the socio-legal framework within which industrial conflict occurred for the greater part of the 20th century—is that the dismantling of the system of working class accommodation it had supported, is eclipsed; and with it the role of successive Labour governments in that process. In my article, I do comment that the role of the Labour Party, especially in government, is absent in much of the International Socialism debate. I had assumed that this was simply a matter of oversight, caused by comrades focusing quite understandably on one explanatory factor or another, at the cost of considering the role of Labour, and especially Labour in government. But Dave is clear; he does not see Labour as a relevant factor in this debate, arguing that because the Tory anti-trade union legislation of the 1980s doesn’t explain the decline in the strike statistics in the UK, then the fact that it was left largely untouched by Labour in government doesn’t explain the figures either.

Dave focuses only upon “the law”, rather than the socio-legal framework within which trade unions must operate, upon which they develop a symbiotic though conflictual dependency, and that over the long term shapes their organisational forms and behaviour. He therefore restricts his discussion to the much more narrowly focussed one of industrial relations. The larger framing of this part of my analysis within the social paradigm of welfarism and working class accommodation is hardly mentioned. This system of accommodation, it’s erosion from the 1970s onwards and the raised levels of risk associated with industrial action for trade unions and for workers, is the substance of my argument.

As a further observation, and one that is again methodological, I would like to comment upon what we mean by taking a “historical view” of the questions we are addressing. Dave picks up on my opinion that no contribution has yet been sufficiently historical in this debate. (I included my own previous articles under this comment.) But to explain, I do not mean that the further we go back in time, the more historical we are being or that whoever adds the most detail is being the most historical. Rather, a historical approach is one that begins with a framing that illuminates the focus of the inquiry, and that fixes the object of interest effectively for analysis. In my article, I frame the trade unions, understood as organisations of class compromise, within a socio-legal system of working class accomodation; one that allowed a degree of latitude for industrial conflict that has now become severely constrained with its progressive dismantling. My historical framing then, is one of class relations and how they have altered over the long term; so, not simply that of “the trade unions and the Tory anti-trade union laws”.

To move from methodology to history I will focus on the shift from the era of “abstentionist” state policy towards the unions, to that of “legalism”; and specifically, the period from the end of the Jim Callaghan Labour government of 1976-9 and the Margaret Thatcher governments of 1979-83 and 1983-7. I choose these years because this is where Dave places most of his challenge to me. As I’ve said, much of the rest of his article is quite complementary to my account.

Dave dismisses the significance I attach to the treatment of the Grunwick strikers by pointing out that there were mass pickets during the strike. But again he doesn’t respond to the point I actually make, which is that suppression was used against mass picketing under the watch of Merlyn Rees, the Labour home secretary. Violence occurred particularly on 13 June 1977 (the Women’s Day, when 80 women were arrested), during the weeks of 16-29 June and on the Day of Action of 11 July when the newly established paramilitary Special Patrol Group of the Metropolitan Police carried out attacks on secondary pickets (including Yorkshire miners) at the factory entrance. Over these weeks hundreds were arrested and hundreds more injured in the police attacks.4

Now, there is an element of interpretation here; whether we see this as something that is important for our debate. Myself, I find it difficult not to see Callaghan’s worries about scenes redolent of “Saltley Gates”, when pickets (chiefly miners and engineers) successfully blockaded a coking plant near Birmingham in 1972, as significant, desperate as he was to avoid the appearance of yet another government being pushed towards crisis by trade union militancy; only this time a Labour government.5 The use of physical force against workers by a Labour government was indeed a historical turning point for class relations in the UK.

Dave also dismisses my comment that the miners’ strike 1984-5 was the last of its type, pointing out that there “was more union defiance of legislation in the 1980s than in the 1970s”.6 Putting aside that of course there were more laws to defy in the 1980s than there were in the 1970s, my real problem with Dave’s assertion here is that it again does not address what I say. My observation about the miners’ strike, is not that the miners were the last group of workers to defy the anti-trade union laws, but rather that their mode of behaviour was that of a self-regulating organisation, determining their action not according to a statutory ballot, but via their own internal democratic mechanisms. The examples that Dave mobilises on this point do not work for the argument he wishes to make against me. The dispute between the SOGAT, NGA and AUEW print unions and News International in 1986, for instance, occurred after ballots conducted under the 1984 Trade Union Act.7 The dispute between the National Union of Seamen (NUS) and P&O European Ferries in 1988 saw the seafarers’ union being prevented from balloting despite its efforts to do so, because of a blocking injunction following an employer’s application to the courts. In that case, counter-intuitive as it seems to a retrospective historical reading, the union’s failure to proceed with a secret ballot, under the threat of the seizing of funds, signalled an intention to conduct the dispute within the law.8 The case of the national leadership of the TGWU distancing itself from the Liverpool dockers, sacked in 1995 for their solidarity with Torside dockers, represented a coup d’grace for the idea that a national union would associate itself with unballoted action.

It is not surprising that strikes in this era were confused affairs, characterised by rhetorical defiance of the law followed by climb-downs in the face of injunctions and sequestrations of union assets, as each case tested its meaning and seriousness. In the case of NUS, the outcome was disastrous and was to lead ultimately to its collapse and absorption into the RMT transport union.

The crucial point here is that, from this point on, trade unions were hobbled by statutory ballots to stay within the law, and so were then compromised in every other aspect of the conduct of their industrial action. Balloting ahead of strikes became the norm during this period, the principle of self-regulation being abandoned as the trade union movement finally entered the era of ­“legalism”. The miners’ strike—the miners having struck on their own terms, outside of the statutory definition of how a union should decide to act and without any attempt to seek legal sanction for their industrial action—was the last major example of a strike of its type.

Having critiqued an argument that he has constructed (not mine), Dave sketches out his alternative thesis; that of “tertiarisation”. This refers to the decline of key industrial sectors that had once been characterised by large trade union memberships and militancy. While new industrial sectors remain relatively strike free, the contraction of these traditionally unionised sectors, in this analysis, has caused a decline in the UK strike figures. And of course, it has. With respect to unofficial strike action, Dave also makes the point that occupational structure plays a role, since in areas such as teaching and health for example, spontaneous walk-outs are more difficult and less likely, given the nature of the work. The question here is not whether these are relevant factors; they obviously are. It is rather whether they provide a “sufficient cause” to explain things; in other words, whether tertiarisation is enough by itself to explain the low level of strikes. I don’t believe it is; and here I agree with Ralph Darlington’s observation that:

The primary explanation for why the level of struggle remains so low is not objective structural changes in capitalism and patterns of employment undermining the working class’s ability to resist, but the subjective role of trade union (and Labour Party) leaders and the nature of the relationship between the union bureaucracy and the rank and file that currently exists.9

Dave’s explanation begs the question, for example, of why should it be that “product-driven” sectoral changes have not themselves been a cause of militancy? Furthermore, why have “new” industrial sectors such as call centres, information technology products and services, financial services, etc. not typically seen many strikes, even after having been in existence for many decades and in some cases, having seen successful unionisation drives (particularly following the 2000 Employment Relations Act)? It also gives us no way of explaining the behaviour of trade union leaderships which will restrain the actions of their members well within and very far from the limits of the law, even to the point of walking away from what should have been easy victories. The great example of this in recent years (in my opinion) was the slow and grim debacle that followed the 2011 pensions revolt. Another example is provided by the February-March 2018 UCU strikes over pensions, when the national leadership of that union manipulated a cessation of industrial action at the very point when the employers and their national body, Universities UK (UUK), were in maximum disarray. I will return to this example in the second half of this article.

The kind of argument that goes “If Y follows X, then X must be the cause of Y” draws upon a historical empiricism that keeps us stuck at a relatively superficial level of analysis and one that raises more questions than it answers with each round of argument. At this level, and staying with Dave’s interest in the interaction between product-driven changes in industrial sectors and strikes and their outcomes, “cause and effect” are more complex than a sequential analysis reveals. This was especially the case in the nationalised industries of the 1970s. The miners’ strike of 1984-5 illustrates the point. On the one hand, the decline of strikes had started before the first of the anti-trade union laws and before that strike. However, the defeat of the miners made possible the politically driven pit-closure programme and industry contraction that followed. The decline of a once militant sector was not in that case the result of “product change”, but rather of an industrial defeat for that group of workers, betrayed by a wider trade union movement, compromised by now by the legalism into which it was sinking. This of course then had a generalised “demoralisation” effect upon the wider trade union movement for some years afterwards, blunting resistance to privatisation, industry contraction and job losses in other sectors.

So, while industry change can be a cause of declining strike figures within a sector, decisive defeat following strike action can also be a cause of wider sector decline. Here, cause and effect change places. The anti-trade union laws came after the effect we are considering (the low level of strikes) because they themselves were the result of a more fundamental shift of governmental orientation towards the unions—informed now by the principle of legalism and the interference of the state in the conduct of trade unions—which, by the late 1970s, a Labour government had accepted.

More fundamentally, however, and to make one more point of methodology, Dave’s reasoning works at the level of the proximal causation that I have commented on in the arguments put forward by Simon Joyce in this debate.10 Dave makes much of the fact, for instance, that the decline of unofficial action began before the instigation of the anti-trade union laws of the 1980s. Elsewhere in a recent publication, he is more precise, observing that legislation specifically aimed at unofficial action does not appear until the Employment Act of 1990 (effective from January 1991).11 On that basis, and logically, he concludes that this legislation cannot explain the decline in strike frequency. Rather, he argues, the decline of once strike-prone sectors and longer-term industrial changes provide the answer.

But the idea behind Dave’s argument here is that explicit legislation is being held up as causal in the analysis I am offering. This is where the difference between an emphasis on “the law”—the “Tory anti-trade union laws” of the 1980s—and that on a historical change in the socio-legal framework within which unions must operate—the shift toward legalism that has its roots in the oscillations of state policy in the 1970s—really matters. This shift, which I mark from the collapse of the Social Contract under Callaghan, fundamentally altered the modus operandi of national trade union leaderships, as well as the power balance between these leaderships and ordinary members. Seen in this way, the legislative acts of the Thatcher years were the concrete manifestations of a deeper policy process that we infer from the outward political and organisational behaviours of governments, parties and trade unions.

This shift—of trans-governmental state orientation towards the unions—represents a substantive cause that better captures the complexity of what happened over the course of the transitional 1970s, as successive governments lurched between strategies of legalism, then abstentionism and then back to legalism. So, far from the Tories’ anti-trade union laws being “the cause” of declining strike figures (which I did not argue), they were themselves the result of deeper changes in policy orientations (industrial and social) that, while driven by Conservative strategists, were accepted and incorporated by a Labour government by the late 1970s (which I did argue). By the time of the next Labour government in 1997 under Tony Blair, this attitude towards the unions had become written explicitly into Labour policy: “The key elements of the trade union legislation of the 1980s will stay—on ballots, picketing and industrial action”.12 “There will be no going back. The days of strikes without ballots, mass picketing, closed shops and secondary action are over”.13

So, employment legislation created under the Labour governments of 1997 to 2010 did not encroach on the requirement for secret ballots ahead of strikes, the most important anchor of legalism that undermined the earlier principles of self-regulation and legal immunity for trade unions. This latter point—the role of Labour—appears to be a crucial point of demarcation between myself and Dave.

The specific legislative trend upon which the Blair governments were to build actually began in the Tory years; particularly in the John Major era. The Trade Union and Labour Relations (Consolidation) Act 1992 was not in reality crudely “anti-trade union” in all of its aspects; rather it altered the register of trade unionism, especially at the local level. It did so by introducing requirements upon the employer in a redundancy situation to “meaningfully consult” to avoid redundancies, to reduce the number of redundancies and to mitigate the effects of redundancy.14 Earlier employment legislation in the Thatcher era had turned the terrain of “the strike” into a legal minefield; however, this legislation opened up a new terrain of legal action as the alternative for trade union bureaucracies, now able to trumpet occasional victories without their members having left their workstations—beyond perhaps some one-day strikes—and with activists spending valuable time and energy locked in local consultation meetings rather than agitating for action. So, while the door to collective official industrial action had closed considerably, another door to legalistic engagement with the courts had opened. This logic became fully articulated with the employment legislation of Labour governments after 1997,15 as well as the full suite of partnership agendas that were introduced over those years.16 In effect a new model had become established: that of statutory consultation as an entitlement under the law; accompanied by minimal demonstrative action by trade union memberships.

It was the internalisation of the principle of legalism by the trade unions during the early 1980s then, decisively established with the defeat of the miners’ strike (the last of its type) in 1985, that represents the fundamental change that properly explains the low level of strikes in Britain today. It is also the structural characteristic of contemporary British trade unionism that is so difficult to shift, given the weakening of control of membership behaviour by national leaderships that it would entail.

I will summarise my position here for clarity, since it seems to be necessary:

The socio-legal system of working class accommodation established after the First World War has been substantially dismantled since the 1970s.

As part of this process, by the end of the 1970s a shift had occurred from “abstentionist” government policy to “legalist” government policy towards the trade unions.

The shift was trans-governmental in nature, connecting the policy ­orientations of both Conservative and Labour governments towards the trade unions since that time.

Two types of risk have resulted from this situation: for trade union bureaucracies, now liable for the actions of their members in disputes; for trade union members, now dependent upon their national leaders’ sanction for industrial action with the protection of the law.

The effect on national leaderships was to strengthen enormously their control over members’ behaviour in dispute situations, representing an intensified bureaucratism within the trade unions.

It also resulted in a de facto policy of “extreme restraint” by unions with respect to industrial action.

The root of our problem lies in the changed reality that this historic shift created.

What does it mean for the left in the unions?

I have found it difficult to know how to begin my response to Tom Machell’s criticisms of my article in International Socialism 159.17 Tom puts words in my mouth, suggesting meanings I have not given and attributing views to me that I do not hold. I do not recognise my argument in what he says. The piece is short, and he should perhaps have expanded more to explain fully his arguments.

To make a response possibly worthwhile, I must gather what I think Tom is inferring from my article. Essentially, the concern driving Tom’s criticisms is that what I have argued could lead to an abdication of trade union responsibilities; or that it might be used as a rationale for revolutionaries turning their backs on official trade unionism. This type of “consequentialist” argument, that an analysis and a practical orientation arising from it, could potentially have results that would be negative for the left or for the working class, has the effect of baffling rational debate about the issues at hand, and distracts from what is being said. Whichever way we turn there are potential consequences that we should avoid. However, this mustn’t become a reason not to address difficult issues. So, to engage in movements brings with it the risk of “movementism”, but we must be part of movements; to engage in official trade unionism brings with it the risk of bureaucratism, but we must be part of the official unions; and so on.

In the case of our debate I have always assumed that many of those involved are active trade unionists with more collective years’ experience in their workplaces and union structures than I care to guess. In fact, it is difficult to imagine what being a trade unionist who does not take up official positions might mean. When I talk of “building networks”, “horizontal orientations”, etc. this could only be achieved by people with the credibility that official workplace union status deservedly carries. The kind of orientation I am proposing would only be feasible where individuals are closely involved with their workplaces and union branches. My worry is simply that after many years—decades, really—of conducting routine trade union work, with little concrete sense of how this might grow into a more serious challenge to capitalism, we will have become, in the end, simply union branch officers, good at the casework, collective representation and so on, but with our workplace practice being that of “political unionism” at best; important of course, but now de-coupled from any convincing larger industrial strategy; our Marxism becoming an abstract proposition.

Actually, there is a “danger” in this perspective that Tom doesn’t pick up on: that of “localism” and the weakening of national perspectives. That I think might have made for a more interesting discussion, given current pressures towards local bargaining within some unions.18 As before, it is a potential consequence to be vigilant against; not a reason for failing to adapt to a changed reality and its attendant challenges. It surprises me here to have to state that our debate is not about whether we should engage with the official unions, but how to do so. To steer ourselves effectively with respect to that question requires an accurate understanding of the character of the current tensions within British trade unionism, and the underlying structure of our experience as activists within it. That is my foremost concern.

So in the interests of the humour of our debate, I’ll thank Tom for the invitation he implicitly extends to me to further explain what I believe to be the practical implications of my analysis. I will do this via a discussion of the extraordinary 2018 UCU pensions dispute.

The test of reality: the 2018 UCU pensions strike

Background to the dispute

The International Socialism “strike debate” began with an urgent need to explain the behaviour of trade union leaderships following the day of action over pensions on 30 November 2011.19 Despite the colossal industrial strength that was displayed that day, the resistance of the national trade union leaders folded in the face of the bluffs and transparent manoeuvring of the David Cameron-led Coalition government. Since then it has detoured through an extended discussion of the low level of strike action in the UK, thanks to the question being raised by Simon Joyce.20 To repeat the problem here, the figures for 2017 (the last available) are again among the lowest since records began.21 The 2018 figures will be raised by the UCU pensions dispute, in similar fashion to the way in which a single dispute, that of the junior doctors raised the 2016 strike figures. The picture though remains that of historically low annual frequencies of strikes and very small overall numbers of workers involved. This persistent pattern remains a crucial issue to address, and one that is related to the question of leadership behaviour. Indeed, it is just this latter aspect, that of national leadership behaviour, that leads into what this all means for our practice as “revolutionaries in the unions”. It is on this question that I will conclude and by way of a consideration of a practical and recent case study: the just mentioned UCU pensions strike of February-March 2018.

The discussion of the UCU dispute between Christian Høgsbjerg, Julie Hearn, Carlo Morelli and Camilla Royle in International Socialism 15922 is full of excellent observations about its causes, the conduct of the UCU national leadership and the upswell of membership participation it saw. I will focus upon just one aspect of the dynamics of that strike: the rejection of the outcome of national negotiations that occurred on 13 March.

The strikes that occurred between 22 February and 16 March had followed impressive ballot results in which 61 of the affected UCU branches won very strong mandates for industrial action; the aggregate national result being 88 percent for action on a 58 percent turnout. UCU members had experienced successive rounds of industrial action over both pay and pensions since 2011. Those actions had been single days of strike action, sometimes occurring over short spaces of time, and in all cases demonstrative in nature rather than being genuinely disruptive to normal university business activity. This phase of periodic but very limited strike action over pay and pensions had by 2018 shaped the relationship between employers and university workers at the national level. It had led the employers to believe they were in supreme control of the sector; that they were invulnerable to trade union action. For UCU members, the result of these disappointing rounds of action was frustration and a sense of pent-up anger that activists were keenly aware of in their own institutions.

Among a wide layer of UCU members there were also frustrations with the national leadership of their union. These had arisen from the experience of being called out previously on tokenistic strikes that were ineffectual in their professed aim of defending “decent pay” and “decent pensions”. On one previous occasion, during the 2014 pay campaign, activists and members had seen the abrupt ending of that dispute based on an agreement by the UCU negotiators that was disadvantageous to UCU members, at the very moment that the employers were losing ground and the union’s position becoming stronger by the day (with branches declaring for strike action in the face of 100 percent pay deductions where members took “action short of a strike”). In 2018, with the overwhelming ballot call for action, the deep-seated frustrations rooted in these experiences had broken through, expressed now as an unarguable demand for far more determined industrial action.

Tensions between left and right, which had developed since the foundation of the UCU in 2006, had become entrenched in two powerful blocs: a left organised in and around UCU Left and a right grouped around the Independent Broad Left (IBL). At the meeting of the UCU’s national Higher Education Committee (HEC) on 23 January the question of what action to take under the mandate provided by the ballot was discussed. There had been anticipation among the delegates grouped within UCU Left that once again the national leadership would opt for forms of action that would be tokenistic, ultimately disappointing to members and of little impact upon the employers. However, the scale of the attack was such, and the vote for action so decisive, that with little debate even being necessary, the decision was taken to launch 14 days of escalating strike action from late February to mid-March. The number of days of strike action to be called, as well as the timing of the action at a critical time of the teaching year for all affected institutions, came as a surprise to activists, representing as it did a call for a genuine mobilisation of the union’s industrial strength and in a sector that, as a result of the raising of students’ tuition fees in 2011, by now was worth £95 billion (including “knock-on” impact) to the UK national economy, and was supporting 940,000 jobs.23

The UCU’s rank and file moment

Rising out of an accumulated anger and frustration, the legacy of previous ­unsuccessful rounds of strike action, the atmosphere of the strikes when they were launched, the energy, enthusiasm and creativity of the strikers, the camaraderie of the picket lines etc was remarkable. However, it is the brief moment when ordinary members took control of the dispute that will be my focus here. On the evening of 12 March, the outcome of the ACAS negotiations was released.24 The proposal was terrible for the union and its members. In brief, the original objective of the employers—that USS members would lose their “defined benefits”—was retained, but now with a clause that the union would encourage its members to reschedule teaching to “minimise the disruption to students”. This last condition, granting the employers a green light to force union members to make up the work lost due to the strikes, despite pay being withheld, added insult to the injury that acceptance of the deal would have entailed.

The response to the outcome of the ACAS talks by ordinary UCU members at branch level was dramatic, and represents the best example of a “rank and file moment”—when the hand of the bureaucracy loosens its grip—that we have seen for many years. The union’s HEC was to meet at 2pm on 13 March to take a view on the outcome of the talks, and to consider whether to suspend industrial action and put the offer to a ballot of members. By informal coordination based on instantaneous social media communications between activists via the #NoCapitulation Twitter hashtag, from the evening of 12 March to the start of the HEC meeting the following day, more than 40 of the 61 striking branches had held meetings, all numbering in the hundreds, to discuss—and in every case reject—the proposed deal.25 A spontaneous “network effect”, that had grown from thousands of tweets and postings and the sharing of images, humour and politics from freezing cold picket lines meant that by the time of the HEC meeting itself, the decision had been made to kill the deal stone dead, not by the delegates, but by the membership of the union. At the HEC meeting the ACAS proposal was not even formally considered. There was no point.

The UCU’s bureaucratic moment

After a further week of strikes, the planned round of industrial action came to an end. Plans commenced for a second round of strike action after the Easter break, timed to hit the highly sensitive exams period in most institutions. The impact of the first round of strikes was obvious as the UUK consensus fragmented, with increasing numbers of its member institutions seeking to distance themselves from the federation’s leadership and calling now for revaluations of the USS scheme. The mood within the UCU among branch leaderships, activists and a wide layer of lay members was bullish, determined and not a little amazed at the union’s own performance and display of industrial muscle.

Suddenly, on 23 March, outside of any normal negotiating process, UUK issued a statement that was conciliatory in tone but that offered no material improvements to their offer to USS members or concessions to the UCU. It merely suggested that a panel of experts might look at the scheme anew to examine the assumptions upon which previous modelling had been based. Startled by their loss of control of the dispute on 13 March, the dominant group in the national leadership of the UCU, grouped around the general secretary Sally Hunt, recoiling now and desperate to bring the dispute to an end, grabbed at the straw that the employers’ statement offered. At the HEC of 28 March, the decision was taken, on a narrow majority (10 votes to eight with one abstention), to put the offer out to an e-ballot of UCU members. After an intensive campaign by the general secretary for an acceptance of the employers’ proposal—using her own direct email communications platform in the style of a plebiscite that outmanoeuvred the left in the union, and that acted against the decision of the HEC not to put any recommendation out with the ballot—the outcome was a decisive “Yes” vote. The immediate result was that the planned industrial action was suspended, pending the deliberations of a compromise Joint Expert Panel (JEP)26 including experts from both sides of the dispute, established to reconsider the USS fund.27

The UCU strike and the International Socialism debate

The experience of the rank and file moment of the 13 March in which members at branch level effectively blocked a settlement on terms that would have been overwhelmingly advantageous to the employers, and an utter defeat for the union, was exhilarating for the UCU members who were involved. However, the 2018 UCU pensions campaign is relevant here in the way it brought to the surface the contradictions that we are grappling with as activists in our unions. I am going to reflect on that struggle with the help of the classic analysis of strike militancy offered by Tony Cliff and Donny Gluckstein.28 Their “axes of militancy” were the following: the relationship between capitalist employers and workers; the relationship between the trade union bureaucracy and the rank and file; and the interactions between the left and right within the trade union bureaucracy. They argued also that the character of any given strike movement must be understood against the backdrop of other, smaller industrial struggles that occurred in the recent past before it. These they called “rehearsals”.

The importance of the rounds of industrial action before the 2018 USS dispute has already been commented upon. These rehearsals of battles over pay and pensions, limited to single days of action had produced frustration and ­embitterment among the membership. They had also provided valuable lessons in the role of the trade union bureaucracy in strikes, and a well-founded scepticism about the seriousness of the national leadership in pressing for all-out victory when it was clearly within reach. These emotions and hard-learnt wisdoms locked in powerful combination as branch after branch met to reject the near sell-out of the 13 March.

With respect to Cliff and Gluckstein’s first axis of militancy—the relationship between employers and workers: whereas the employers had come to see themselves as having carte blanche to do as they wished over pay and pensions, for university workers the result of these years of industrial conflict was simmering anger and a determination to draw a line under any further encroachments on pensions. It was the meeting of this angry determination and the gross over-confidence of the national employers, that produced the 2018 pensions strike. The second axis of militancy, the relationship between the national bureaucracy and the trade union rank and file, is also central to this story. Without the experience of betrayals in previous rounds of industrial action, awareness of the danger on 12 and 13 March would not have been so keen. The rehearsals mentioned here had altered the internal dynamics of the union, making members alert to cynical manoeuvring by their national leaders. The third axis of militancy, the interactions between the left and right of the trade union bureaucracy, is also relevant. Despite the internecine factionalism that had characterised the internal organisational culture of the UCU, unity had broken out over the calling of a significant round of strike action, timed at a critical point of the academic and business cycles of the affected universities. By the HEC of 23 January, when the decision was made to stage escalating strikes through February and March, the verdict of the membership, expressed in overwhelming ballot results, to fight and to fight seriously, was unanswerable. The UCU membership had been asked to consider that “massive and disruptive action” would be necessary to win on pensions; and they had agreed. The right wing of the union officialdom had been bounced by the mood of the rank and file into the type of position normally put by the left.

The 2018 UCU pensions strike provides further illustrations for the analysis I put forward in the International Socialism 157 article. Frustration and the accumulation of pent-up anger certainly played a role, introducing an element of volatility into the dispute, for instance. The rank and file moment of 13 March, arising from the deep distrust of the national leadership on the part of striking members, also showed the potential for seizing control of a strike movement by branch level activists—where they are alert to that possibility. Then, confirmation of our basic problem unhappily came with the calculated manipulation of democratic processes by the general secretary to achieve a suspension of the industrial action, just as the employers’ position was crumbling; shifting from top gear to reverse in the process. Here was a perfect illustration then of a national bureaucracy that, alarmed at having momentarily lost control of events within a strike and of its members, became determined to close down the dispute at the very point where decisive victory came within reach; the point of maximum impact on the employers by membership action, always coinciding with that of maximum panic among national leaders at their loss of control.

The UCU strike met the requirements of the 2016 Trade Union Act, and so remained within the legalist paradigm. However, it shone a bright light on the contradictions of the British trade union movement; both the nature of its limitations, and the potential for sudden breakthroughs to happen at the membership level, so pushing legalism to near breaking point. It also begged a question: “Are revolutionaries correctly positioned to seize these opportunities when they occur?” And now they will occur with increasing predictability.


I will conclude with a thought on this last question. The UCU rank and file moment represented a breaking point for the contradictions and tensions within the British trade union movement created by its internalisation of legalism. Momentarily, it split the outward “surface” of the legalism of official trade unionism in the UK, to reveal the strata of social and industrial experience beneath, and the pressures driving upwards against their bureaucratic constraints. It is in this sense that the 2018 national UCU dispute is indeed fittingly described as “historic”. The “forces” arising from the accumulated working class grievances that legalism has stemmed for nearly 40 years are enormous. The determination of national trade union leaderships to operate within the legalist domain means that the imperative to retain control of membership behaviour has become paramount over and above the mobilisation of industrial strength. This is the root cause of what happened in the UCU dispute with its successive episodes of brief control from below and reassertion of control from above. It is also the reason that such moments are likely to recur in national disputes for other trade unions, especially when their leaderships are pushed beyond the “one-day strike” model of industrial action.

There is one further aspect to consider. The 13 March episode was in one sense a dummy-run for something far more serious, yet very plausible and even likely. The fleeting seizure of membership control within the UCU dispute occurred within ongoing industrial action that was allowed to run its scheduled course, the crisis being transferred from the picket line to the union’s national congress (30 May to 1 June 2018).29 In future manifestations of this new structural characteristic in major industrial disputes, such crises will occur when national leaderships suspend industrial action as it is in full swing. At that point the role of networks, if they are present, will become of critical importance as alternative leaderships. Where they are absent, branches, memberships and activists will crumble into frustrated acquiescence, or isolated and therefore dangerous adventurism. Where they are present, if they have been built effectively their leaderships will judge the relative strength of their positions, decide the best courses of action and prosecute them, conscious of the calculated risks involved.

This is not fanciful speculation; the UCU is not an exceptional case. Something very similar to the events in the 2018 UCU dispute might have happened for the Communication Workers Union in 2017 following very high votes for strike action in a national ballot; a mandate that was beached by an employers’ challenge through the courts. Moreover, types of non-traditional and innovative horizontal initiative are already apparent. Examples include: the Independent Workers Union of Great Britain (IWGB); United Voices of the World (UVW); and the Cleaners and Allied Independent Workers Union (CAIWU). The emergence of rank and file formations from the UCU pensions strike provides further examples.30

Speaking of “dangers” within perspectives, I believe that there is indeed a danger that such formations will emerge that are suddenly influential and at crucial moments in disputes, but that are lacking in leaderships that can rise to the challenges that occur within them. Good tactical sense, an understanding of united fronts, correct positioning and high levels of organisational skill and judgement about when to advance and when and how to retreat in good order will be needed if they are to be effective.

Networks must be built. The form they take and the methods they use will be shaped by the strategy and tactics appropriate to each union, each circumstance and each locality. To be prescriptive in the pages of an International Socialism article would be to get it wrong in one or another way. Whether they should be built as political trade union organisations (with the “-Left” tag that suggests formal political affiliation), or whether they should be primarily industrial formations (with the “-Rank-and-File” or “-Network” or “-Solidarity” tag) with centres of socialist influence is a matter for activists who know their unions to decide. Whatever they are called they will need to become cohesive and credible organisations, deliberately built and with strong local roots in the workplaces they cover and branches that support them. This is the meaning of embarking upon “horizontal” organisational strategy as a primary field of action, that anticipates being able to lead beyond the official limitations of national leaderships and being positioned to act swiftly when the need and opportunities arise—as they will.

Again, I will summarise my position for clarity:

Intensified bureaucratic control within the trade unions has led to an accumulated sense of grievance among worker members of the unions, and within the British working class generally.

This creates a situation of potential volatility within the British working class.

The legalism that is the root cause of this reality, and its internalisation by the trade unions, is reaching its limits as employers’ aggression continues and unions fail to act proportionately.

The 2018 UCU pensions strike has provided a highly illuminating example of how these pressures are building and what can happen when they surface.

It also shows how abruptly and unexpectedly rank and file moments can occur, presenting brief opportunities for the left to provide alternative leadership at crucial junctures in specific disputes.

Such moments are likely to require defiance of national leaderships, credibility with wide layers of trade union memberships and an ability to act beyond official mandates.

These situations will also entail significant risk and will require both good tactical sense and effective horizontal organisation.

In anticipation of such moments, effective horizontal networks must be built in the immediate term.

Carlo Morelli, in the UCU strike discussion in International Socialism 159,31 talks about “hegemony” in the context of an industrial dispute. Here he makes an important point; industrial actions are always also political. Both the preparedness of workers to take action without the protection of the law, as well as the preparedness of employers to use the law to victimise activists, are shaped profoundly in each case by the political arguments and the sense of injustice that pervades the dispute in question. Where the feeling of “legitimate grievance” is dominant, workers are far more likely to take such action and to do so determinedly, so lowering the levels of risk of losing their jobs. As always these are matters of practical but also political judgement.

The 2018 UCU pensions dispute brought the paradoxes of the current state of the British trade unions to their highest point, while remaining within the legalist paradigm. The breaking-point we saw within that dispute signals that the questions raised, and the answers needed, are urgent.

Mark O’Brien is a socialist researcher based in Liverpool. He is the co-author of Just Managing? What it Means for the Families of Austerity Britain (Open Book, 2017,


1 O’Brien, 2018.

2 Lyddon, 2018a; Machell, 2018.

3 Of up to £125,000 where membership numbers are between 25,000 and 100,000 and up to £250,000 for unions whose memberships are more than 100,000—Trade Union and Labour Relations (Consolidation) Act, 1992, Section 22 “Limit on damages awarded against trade unions in actions in tort”.

4 Wilson, 2016.

5 For an analysis of the policing of the Grunwick strike (particularly the approach taken to the 11 July 1977 Day of Action) and of Callaghan’s fears of “another Saltley Gates” see St John, 2016.

6 Lyddon, 2018a, p192.

7 Marx Memorial Library, 2011.

8 Elgar, 1997, p85.

9 Darlington, 2014, p57.

10 O’Brien, 2018, pp153-155.

11 Lyddon, 2018b.

12 Labour Party, 1997.

13 Labour Party, 1998.

14 This is the famous “Section 188” clause, and accompanying “Section 189” clause that enables a trade union to mount a legal challenge where an employer is in breach of its Section 188 obligations.

15 Employment legislation under Labour: Deregulation (Deduction from Pay of Union Subscriptions) Order 1998 (removing employers’ requirements for the “check-off” system); Employment Relations Act 1999 (improving recognition rights and trade union status); Employment Act 2002 (giving Union Learning Representatives statutory status); Employment Relations Act 2004 (improving workplace rights to representation); Employment Act 2008 (allowing unions to expel members of far-right groups); Employment Relations Act 1999 (Blacklists) Regulations 2010 (strengthening prohibition of blacklists).

16 I discuss the ways in which employment legislation and government partnership initiatives in this era intensified the dependency of the trade unions on Labour in government in an earlier contribution—O’Brien, 2015.

17 Machell, 2018 (a reply to O’Brien, 2018).

18 Within the UCU for example, in the wake of participation rates falling below the 50 percent threshold in the 2018 pay and equalities industrial action ballot.

19 Kimber, 2012.

20 Joyce, 2015.

21 The 2017 figures are: 276,000 working days “lost” due to strikes (the sixth lowest annual total since records began in 1891); 79 work stoppages (the lowest figure since records for stoppages began in 1891); 33,000 workers involved in strikes (the lowest figure since records began in 1893)—Office for National Statistics, 2018.

22 Høgsbjerg, Hearn, Morelli and Royle, 2018.

23 Universities UK, 2018, p15.

24 ACAS, 2018.

25 As acting president of the University of Liverpool UCU branch during the strikes, I chaired the crucial mass meetings during this period. I can vouch for them being the most serious and exciting meetings I have participated in in my 35-year career as an active trade unionist.

26 UCU and Universities UK, 2018.

27 At the time of going to press, the outcome of the USS dispute was still undecided. The September report of the JEP recommended the rejection of the “2017 valuation” that had triggered the crisis around the pension fund; representing a vindication of the union’s industrial action. A crucial outcome was also the removal of the prospect of a “defined contributions” model that directly threatened member benefits. However, the JEP report also recommended increases in employer and member contributions to maintain those benefits. Currently also, the actuarial “tests” (and particularly test 1) that create the fictional picture of a fund “in deficit”, remain in place. Members now await the outcome of phase 2 of the JEP process.

28 Cliff and Gluckstein, 1986.

29 Discussed in Høgsbjerg, Hearn, Morelli, and Royle, 2018.

30 A joint conference of around 100 delegates from 30 HE UCU branches and 15 FE UCU branches, “Resisting the Market, Uniting for: Pay, Pensions, Democracy, Equality, Justice” took place in London on 13 October, organised by a range of UCU grassroots formations: UCU Transformed; Branch Solidarity Network; UCU Left; and Our UCU.

31 Høgsbjerg, Hearn, Morelli, and Royle, 2018.


ACAS, 2018, “Agreement Reached between UCU and UUK under the Auspices of ACAS” (12 March),

Cliff, Tony, and Donny Gluckstein, 1986, Marxism and Trade Union Struggle: The General Strike of 1926 (Bookmarks).

Darlington, Ralph, 2014, “The Rank and File and the Trade Union Bureaucracy”, International Socialism 142 (spring),

Elgar, Jane, 1997, “Industrial Action Ballots: An Analysis of the Law and Practice in Britain” (PhD thesis, LSE),

Høgsbjerg, Christian, Julie Hearn, Carlo Morelli and Camilla Royle, 2018, “Fourteen Days that Shook the Universities”, International Socialism 159 (summer),

Joyce, Simon, 2015, “Why Are There So Few Strikes?”, International Socialism 145 (winter),

Kimber, Charlie, 2012, “The Rebirth of Our Power? After the 30 November Mass Strike”, International Socialism 133 (winter),

Labour Party, 1997, “New Labour: Because Britain Deserves Better”.

Labour Party, 1998, “Fairness at Work”, Cm 3968 (May).

Lyddon, Dave, 2018a, “Why Trade Union Legislation and the Labour Party are Not Responsible for the Decline in Strike Activity”, International Socialism 158 (spring),

Lyddon, Dave, 2018b, “The Labour Party and the Law on Strikes: from Taff Vale to the 2016 Trade Union Act, via In Place of Strife 1969”, in David Morgan (ed), The Labour Party in Historical Perspective (Socialist History Society Occasional Publication No 42).

Machell, Tom, 2018, “Revolutionaries and Trade Unions: A Reply to Mark O’Brien”, International Socialism 159 (summer),

Marx Memorial Library, 2011, “The Workers’ Story: News International Wapping—25 Years On”,

O’Brien, Mark, 2015, “Revolutionaries in the Unions: The Reality of the Strike”, International Socialism 147 (summer),

O’Brien, Mark, 2018, “What has Happened to the British Labour Movement, and What Does it Mean for the Left in the Unions”, International Socialism 157 (winter),

Office for National Statistics, 2018, “Labour Disputes in the UK: 2017” (30 May),

St John, Jac, 2016, “Grunwick Dispute—Story”, Special Branch Files Project (4 March),

UCU and Universities UK, 2018, “Report of the Joint Expert Panel” (September),

Universities UK, 2015, “The Impact of Universities on the UK Economy” (September),

Wilson, Amrit, 2016, “‘We are the Lions, Mr. Manager’: Revisiting the Great Grunwick Strike”, Ceasefire (15 June),