volume 57 number 1
2007 Spring Edition
federation news
FE DE R ATI O N NE WS GF TU/I E R
The Institute of Employment Rights The People’s Centre 50-54 Mount Pleasant Liverpool L3 5SD tel: 0151 702 6925 fax: 0151 702 6935 email office@ier.org.uk www.ier.org.uk
General Federation of Trade Unions Central House Upper Woburn Place London WC1H 0NY 020 7387 2578 (24hrs) fax 020 7383 0820 email gftuhq@gftu.org.uk www.gftu.org.uk
The Institute of Employment Rights was launched in 1989. As a labour law ‘think tank’, supported by the trade union movement, its purpose is to provide research, ideas and detailed argument. In 1994 the Institute was granted charitable status.
The General Federation of Trade Unions was founded in 1899. It provides services and benefits, mainly in the fields of education and research, to affiliated unions. The education work of the Federation is administered through an Educational Trust, which was established in 1971. Federation News is a series of short articles in the subject areas of labour law, labour economics and industrial relations, which are of interest to industrial relations practitioners and students.
The results of the work of the Institute are published in papers and booklets and developed at conferences and seminars. Our aim is to provide the tools of analysis and debate for the trade union movement in the area of labour law.
We welcome the submission of articles for consideration for publication in future editions. Please send articles to the Institute of Employment Rights at the above address or electronically to cad@ier.org.uk. The views expressed in Federation News do not represent the collective views of the Institute of Employment Rights or of the GFTU, but only the views of the authors. The responsibility of the Institute and the GFTU is limited to approving this publication as worthy of consideration within the labour movement.
Editor Michael Bradley Executive Editors for this edition Keith Ewing and Carolyn Jones Advisory Editorial Board John Bell Richard Beresford Stephen Cavalier Bill Dewhurst Rosie Eagleson Keith Ewing John Fray Dan Gallin John Hendy Judith Jackson Carolyn Jones Aileen McColgan Doug Nicholls Roger Seifert Dave Spooner Roger Welch Frank Wilkinson David Tarren ISSN 0014 9411
VO LU M E 57 N U M BE R 1 SPR I N G 2007
Contents Editorial
Carolyn Jones / Keith Ewing
2
Comment
J E Mortimer
3
Introduction
Carolyn Jones
4
The Taff Vale dispute: a short summary
Graeme Lockwood
6
Quinn v Leatham
John McIlroy
8
The Scottish Case: Crofter
Douglas Brodie
10
The Trade Disputes Act 1906: the first fifty years
Dave Lyddon and Paul Smith
12
The Trade Disputes Act 1906: the second fifty years
Bob Simpson
14
Judicial Mystification of the Law
Roger Welch
16
The Story in Ireland
Cathy Maguire
18
Trade union rights and the Trade Union Freedom Bill
John Hendy and Gregor Gall
20
The Economic Case for the Trade Union Freedom Bill
Simon Deakin and Frank Wilkinson
24
Legal Challenges to British Labour Law the Litigation Route to Trade Union Freedom
Keith Ewing
26
The Long Campaign for Labour Law Reform in the United States
John Logan
28
The end goal of workers’ rights advocacy
Roy Adams
30
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FE DE R ATI O N NE WS GF TU/I E R
Editorial: The Right to Strike From the Trade Disputes Act 1906 to a Trade Union Freedom Bill 2006: A summary Welcome to the Spring Edition of Federation News. Keen readers of this journal will recall that the last edition of Federation News contained a series of articles from Trade Union General Secretaries outlining why they believe a change in UK law is needed to give unions the freedoms required to adequately protect the interests of their members. Since that edition, much has happened. The Institute of Employment Rights published its report The Right to Strike: From the Trade Disputes Act 1906 to a Trade Union Freedom Bill 2006 in December 2006. In January 2007 the TUC, with the assistance of John Hendy QC, finalised the content of its Trade Union Freedom Bill. Then in March 2007 John McDonnell MP had the Bill published and laid before Parliament as a Private Members Bill as well as raising a second EDM in support of the Bill (EDM 532). The launch of the Institute’s book generated much interest. By the time of publication, over 100 trade union organisations had sponsored the call for a Trade Union Freedom Bill, highlighting the extent to which the call for a Bill resonated across the labour movement. That list of sponsors continues to grow as information about the Bill spreads across the movement (for a full list of sponsors see the IER’s website at www.ier.org.uk). Within 2 months of the first launch conference, over half the published books had been sold. To build on the obvious thirst for knowledge and understanding of the proposed Trade Union Freedom Bill, this edition of Federation News pursues the same theme. The expert authors who contributed to the Institute’s book now offer summary articles of their chapters. The aim is to ensure that the historical information, the legal analysis and the political arguments contained in the book reach as many trade union activists as possible. But the articles go further than simply summarising the Institute’s book, with a report of the most recent concerns of the ILO’s Committee of Experts strengthening the case for changing British labour law. We also have valuable articles on the situation in the US and Canada. With a new labour leadership about to take office and with Europe looking to “modernise labour law to meet the challenges of the 21st century”, this edition of Federation
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News offers a timely reminder of our past and informed options for our future. Carolyn Jones Director, IER
Keith Ewing President, IER
VO LU M E 57 N U M BE R 1 SPR I N G 2007
Comment J E Mortimer The law in Britain on trade disputes is today more restrictive on trade unions than it was 100 years ago after the passing of the Trade Disputes Act 1906. There is now growing pressure for change. New legislation is long overdue. That is the background to the publication of a new IER book The Right to Strike and explains why it is of special importance. The book is scholarly in content but also very practical in its advocacy. This edition of Federation News contains summary articles of the chapters in the main book. Trade union rights are human rights. A state that fails to uphold these rights – at least to good international standards – is not a fully democratic society. In Britain we have fallen behind good international standards. The time for change is now.
by statute or decisions of the courts. The first was under the Labour government of 1945 when the Trade Disputes and Trade Union Act 1927, carried by a Conservative majority after the general Strike of 1926, was totally repealed. A second example was provided by the Labour government of 1974, when it repealed restrictive legislation introduced by the preceding Conservative government and replaced it with legislation to restore the previous rights of unions and to extend new rights to working people in the Employment Protection Act 1975. A new piece of legislation is now required and this book charts the way forward.
The special significance of the IER book is that it argues the case for new legislation, both informatively and persuasively. A number of outstanding scholars, lawyers and active trade unionists collaborated in the discussion and preparation of the contents of the book. The various chapters demonstrate that the struggle for trade union rights has a long history. The unions emerged from total illegality less than 200 years ago. Stage by stage they established certain limited rights, only to see some of them taken away either by statute or by decisions of the courts. The struggle never ceases and there is no final and assured victory. There is, nevertheless, plenty in this history of struggle to provide confidence that progress can and will be made. The campaign for the 1906 Act was one of the most successful in British history. Its roots were in the trade union movement. It won support not only amongst working class people but among others in the electorate who were persuaded that trade unionists were suffering an injustice. The successful campaign was a testimony to democratic action and to the potentiality of Parliamentary power. It was a major influence in the establishment of the Labour Party and its early electoral growth. There have been a number of occasions since 1945 when Parliament, in response to campaigns by trade unionists and the votes of the electorate, swept away restrictions imposed
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federation news
Roy Adams is Emeritus Professor of Industrial relations at MvMaster University, Ontario, Canada and Chair of the Society for the Promotion of Human Rights in Employment (SPHRE) Douglas Brodie is Reader in the School of Law at the University of Edinburgh.
Simon Deakin is Assistant Director at The Centre for Business Research, Cambridge University.
K D Ewing is Professor of Public Law at Kings College London and President of the Institute of Employment Rights.
Gregor Gall is Head of the Centre for Research in Employment Studies at the University of Hertforshire.
John Hendy, QC is Head of Old Square Chambers, Chairman of IER, Joint National Secretary of the United Campaign for the Repeal of Anti Union Laws and a Vice-President of International Centre for Trade Union Rights. Carolyn Jones is the Director of the Institute of Employment Rights.
Graeme Lockwood is a Lecturer in Business Law and Employee Relations at the Department of Management, King’s College London.
John Logan is currently a research fellow at the University of
Limerick.
Dave Lyddon is a senior lecturer in the Centre for Industrial Relations, Keele University and joint editor of the journal Historical Studies in Industrial Relations. John McIlroy is Professor of Industrial Relations at Keele
University.
Published by the GFTU Educational Trust Central House Upper Woburn Place London WC1H 0HY in association with The Institute of Employment Rights The Peopleʼs Centre 50-54 Mount Pleasant Liverpool L3 5SD
Cathy Maguire is a barrister practising at the Irish Bar, specialising in employment and trade union law.
Jim Mortimer is a former General Secretary of the Labour Party and former Chair of ACAS. He is a Vice President of the Institute of Employment Rights.
Bob Simpson is a member of the Law Department at the London School of Economics, specialising in Labour Law, particularly trade unions and industrial disputes.
Paul Smith is Senior Lecturer in the Human Resource Management and Industrial Relations Department at Keele University.
Roger Welch is Principal Lecturer in Law at the University of
Portsmouth.
Dr Frank Wilkinson is Emeritus Reader, University of
Produced by IER Printed by Upstream Front cover collage by Creativity Jones, including May Day photo by Stefano Cagnoni (reportdigital.co.uk) Price £8 to IER subscribers and members (£30 others)
Cambridge and Visiting Professor, Birkbeck College, University of London.