FIRST STEPS OF TRADE UNION REFORM: THE 1980 EMPLOYMENT ACT
A firm financial strategy was necessary to improve our economic performance: but we never believed that it would be sufficient, even with tax cuts and deregulation of industry. We also had to deal with the problem of trade union power, made worse by successive Labour governments and exploited by the communists and militants who had risen to key positions within the trade union movement — positions which they ruthlessly exploited in the callous strikes of the winter of 1978–9.
The economic effects of union power were still painfully clear. Pay rises were soaring while business prospects plummeted with the onset of recession. The engineering industry dispute in 1979 provided a good demonstration of how much poison excessive trade union power and privilege had injected into British industry — and not just the public but the private sector too. The engineering industry had every commercial reason to reduce costs so as to compete. Yet after a ten-week strike, the employers, the Engineering Employers’ Federation (EEF), conceded a 39-hour week, increases of £13 a week for skilled men and an extra week’s holiday phased over four years, all of this greatly increasing their costs. The EEF had crumbled and, because of the centralized system of pay bargaining, employers throughout the industry had also given in. The EEF had long accepted the closed shop as an unavoidable fact of life. So the unions’ power over their members was more or less absolute. Some employers, in search of a quiet life, preferred it that way. But it meant that when a dispute did occur the trade union was able to exercise what amounted to intimidation over its members — ‘lawful intimidation’ in the unhappy phrase coined by Labour’s former Attorney-General, Sam Silkin. Those who wanted to continue working could be threatened by the union with expulsion and the consequent loss of their job. The engineering strike was not a political strike, nor one which threatened to bring ordinary life to a halt. But it was precisely the sort of strike which no country fighting for its industrial future could afford — an object lesson in what was wrong. Its consequences damaged the whole industry for years to come.
Indeed, for the greater part of my term of office the need for new steps in trade union reform was repeatedly demonstrated by industrial disputes. The disadvantage of this was that, in a sense, we were always behind events, learning the lessons of the last strike. The advantage was, however, that we could point to recent abuses to justify reform and could therefore rely on public opinion to help us push it through.
On 14 May 1979, less than a fortnight after I formed the Government, Jim Prior wrote to me setting out his plans for trade union reform. There was a certain amount that we could do at once. We could set up our promised inquiry into the coercive recruitment practices of the printing union SLADE — which would deal also with the activities of the NGA in the advertising industry. We could also make certain changes to employment legislation by Order in Council, with the aim of reducing the heavy burden placed — on small firms in particular — by the provisions on unfair dismissal and redundancy. But we would have to consult with employers and unions quite extensively about our main proposals on secondary picketing, the closed shop and ballots. As a result, the larger changes we wanted would not be in place in time for strikes which might occur that winter. Jim Prior was optimistic that if the TUC was properly handled — and he thought that he could handle the TUC — they would not reject our proposals outright. The CBI was also, as usual, opposed to any ‘precipitate’ action. In reply I pointed out that they would be the first people to complain if secondary picketing started again. I also made it clear that I thought that a bill must be published by November, if at all possible, and should reach its committee stage in the Commons before Christmas. I had a further discussion with Jim about tactics on the afternoon of Wednesday 6 June. Jim said that for purposes of negotiation his proposals to the TUC would go somewhat further than those in our manifesto, but I insisted that our final position should not be less than the manifesto — a significantly different emphasis.
Two weeks later Jim set out his proposals in a Cabinet paper. These were very similar to those which were ultimately contained in the 1980 Act. They covered three main areas: picketing, the closed shop and ballots. We planned to limit the specific immunities for picketing, given under the legislation of 1974 and 1976, strictly to those who were themselves party to the dispute and who were picketing at the premises of their own employer. Powers would be taken to issue a statutory code on picketing. Where there was a closed shop, we proposed to give employees who might be dismissed for refusing to join a union the right to apply to an industrial tribunal for compensation. There would be a legal right of complaint for those arbitrarily expelled or excluded from union membership. We would extend the present protection for employees who objected to joining a union because of deeply held personal conviction. A new closed shop could in future only be established if an overwhelming majority of workers voted for it by secret ballot. A statutory code relating to the closed shop would be drawn up. Finally, the Secretary of State for Employment would be given power to reimburse trade unions for the postal and administrative costs of secret ballots.
These early proposals were as notable for what they did not contain as for what they did. At this stage they did not extend to the question of secondary action other than secondary picketing, nor did they deal with the wider question of trade union immunities. In particular, they left alone the crucial immunity which prevented action being taken by the courts against union funds. On the first of these points — secondary action — we were awaiting the conclusions of the House of Lords in the important case of Express Newspapers v. MacShane.[28] It is worth noting that the changes we made in all these areas, including that of picketing, were changes in the civil, not the criminal, law. In public discussion of subsequent strikes this distinction was often lost. The civil law could only change the way in which unions behaved if employers or, in some cases, workers were prepared to use it. They had to bring the case. By contrast, the criminal law on picketing, which was clarified but not substantially altered in the years ahead, had to be enforced by the police and the courts. Although the Government would make it clear that the police enjoyed its moral support and would improve police equipment and training, the constitutional limits on us in this area were real and sometimes frustrating.
As the summer wore on, it became obvious that although the TUC was prepared to talk to the Government about our proposals, it had no intention of actually co-operating with them. On 25 June at their request I met the TUC General Council. I was depressed, but not a bit surprised, to discover that there was no willingness on their side to face economic facts or to try to understand the economic strategy we were pursuing. I told the TUC that we all wanted high living standards and more jobs, but that if people wanted a German standard of living then they must achieve a German standard of output. When the TUC said that they wanted more government spending, I pointed out that there was no shortage of demand in the economy: the problem was that because of our uncompetitiveness that demand was being met by imports. I got nowhere. The TUC Conference in September was marked by unreasoning and unqualified opposition to everything we proposed — even the provision of funds for secret ballots in which no compulsion was involved, other than the moral pressure to consult their own members.
On the evening of Wednesday 12 September I held a meeting with Geoffrey Howe, Jim Prior and other colleagues to plan our strategy. I thought that it was hopeless trying to change the attitudes of most trade union leaders, who were socialist politicians first, second and third. Instead, we agreed that we must appeal over their heads to their members.
I was convinced that rank-and-file unionists felt very differently to the union bosses about the reforms. In due course, we must liberate them by breaking down the closed shop and by ensuring genuine democracy within the unions; then they themselves would bring the extremists and union apparatchiks into line. But until we could make such changes — and it would take more than our present bill
to do that — all we could do was to call for their support as persuasively and powerfully as we could.
So time and again I drummed home the message that it was ordinary trade unionists and their families who were hurt by the irresponsible use of trade union power. For example, in my speech to the Party Conference in Blackpool on Friday 12 October 1979, I said:
The days when only employers suffered from a strike are long since past. Today strikes affect trade union members and their families just like the rest of us. One union can deprive us all of coal, or food, or transport easily enough. What it cannot do is defend its members against similar action by other unions… Recently there was a strike which prevented telephone bills from being sent. The cost of that strike to the Post Office is £110 million. It will have to be paid for by everyone who uses the telephone… The recent two-days-a-week strike by the Engineering Union lost industry £2 billion in sales. We may never make up those sales and we shall lose some of the jobs which depend on them.
I developed this theme again when I spoke to the Conservative Trade Unionists’ (CTU) Conference in Nottingham on Saturday 17 November. Strikes were not the only problem; rather, it was the whole socialist economic approach to which the union bosses were wedded, and in particular their preference for monopoly and protection. I took the example of British Steel — which soon became all too topical — to make the point:
British Steel would like to import coking coal to make its steel more competitive. But the NUM opposes this saying, ‘Buy our coking coal, even if it is more expensive.’ If British Steel agree, they must, in turn, say to the car manufacturers, ‘Buy our steel, even if it is more expensive.’ But then British Leyland and the other car manufacturers have to ask the consumer, ‘Please buy our cars even if they are more expensive.’ But we are all consumers and as consumers we all want a choice. We want to buy the best value for money. If foreign cars, or washing machines, are cheaper or better than British, the consumer wants the choice. There is a broken circuit. Producers want a protected market for their products. That is the union demand. But the same trade unionists, as consumers, want an open market. They cannot both win. But they can both lose.
In the last part of 1979 and the early months of 1980 we continued refining the Employment Bill and spent a good deal of time on the question of secondary action and immunities. We also discussed item by item measures to deal with the burdens which past Labour legislation had placed on industry. One such burden was Schedule 11 of the Employment Protection Act, 1975. Schedule 11 was a typical case: it showed how an apparently harmless measure, introduced for the best of motives, could defeat the intentions of its originators and result in higher unemployment. Schedule 11 provided that the ‘recognized terms and conditions’ of employment for a particular industry should apply throughout that industry. The original aim was to deal with pockets of low pay; the principle had wartime antecedents, but in recent years it had been exploited by higher paid groups, such as those working for the BBC. In that instance the unfortunate television licence holder had to foot the bill. Generally, by forcing wage levels up to the level obtaining in the strongest firms, Schedule 11 caused jobs to be lost.
But by far the most contested issue was that of trade union immunities. Our proposals on secondary picketing had already begun to address it. But we now took a further step. We had received the report of the enquiry set up earlier into the recruitment activities of the printing union SLADE, undertaken by Mr Andrew Leggatt QC[29] In response, we decided to remove the immunity where industrial disruption was called or threatened by people other than those directly working for a particular firm with the intention of coercing its employees into joining a trade union.
We decided to go further, following the House of Lords decision in the MacShane case on 13 December. The MacShane case was important because it confirmed the wide scope of existing immunities in the case of secondary action. Most of the immunities then enjoyed by trade unions had their origin in the Trade Disputes Act (1906), which Labour extended significantly after its narrow election victory in October 1974. The MacShane case arose from a dispute that began in 1978 between the National Union of Journalists (NUJ) and a number of provincial newspapers. The provincial papers managed to keep going during the dispute by publishing stories supplied to them by the Press Association. The NUJ unsuccessfully attempted to prevent this, first, by direct appeal to NUJ members working for the Press Association and then, when that failed, by instructing its people on national newspapers to black Press Association material altogether. In response the Daily Express applied for an injunction against the NUJ. The Court of Appeal in December 1978 ruled in favour of the Express that the NUJ secondary action had exceeded that which could be regarded as furthering the objectives of the dispute and therefore did not enjoy immunity. As a result of this decision, injunctions could be and were granted. However, when the case went to the House of Lords, the Appeal Court’s ruling was overturned. Essentially, the Lords decided that for purposes of law an industrial action was ‘in furtherance of a trade dispute’, and therefore immune, if trade union officials genuinely believed it to be so. This subjective test had the most disturbing implications. It meant that henceforth there would be virtually unlimited immunity for secondary industrial action.
The position was complicated by the outcome of two other court cases. One of these — N. W. L. Limited v. Nelson & Wood, or the ‘Nawala Case’ — resulted from the attempts of the International Transport Workers’ Federation to prevent the employment by a British shipping company of overseas seamen in British registered ships. The Federation’s action threatened the future of the British shipping industry. Still more important, however, was the second case, which widened the scope for secondary action in the steel strike. The Iron and Steel Trades Confederation (ISTC) had called out its members in the private steel sector as part of its dispute with the British Steel Corporation which had begun on 2 January 1980. Duport Steels, a private steel company, was granted an injunction by the Court of Appeal against Bill Sirs, General Secretary of the ISTC. The Court of Appeal ruled that immunity did not apply in this case because the ISTC’s argument was essentially with the Government rather than BSC itself. But again, the House of Lords unanimously reversed this ruling, relying on broadly the same grounds as in the MacShane case. The practical result was that the strike spread once more to the private steel companies.
We were all agreed that the law as now interpreted by the Courts must be changed. In Opposition, we had opposed all of the moves Labour made to extend trade union powers and immunities and in our manifesto we had said that, ‘the protection of the law should be available to those not concerned in a dispute.’ We agreed that it was right now to clarify the precise limits of immunity. But we disagreed both about what immunity, if any, there should be for secondary action and about the timing of the introduction of the necessary change into the Employment Bill. Again and again, Jim Prior said that he did not want decisions about changes in the law to be linked with a particular dispute. But as the steel strike worsened, with none of our proposed legislation yet in force — let alone measures to deal with secondary strikes and blacking — the public criticism grew. I had the greatest sympathy with the critics, though I wished that some employers had earlier been rather more robust. Whenever those of us who felt that we ought to go faster put our case — and our number included Geoffrey Howe, John Nott, Keith Joseph, Angus Maude, Peter Thorneycroft and John Hoskyns — Jim Prior was always able to argue against ‘hasty action’ by reference to the cautious attitude of the CBI.
On the afternoon of Wednesday 30 January Jim came to see me at his request and poured out a tale of woe. Apparently the unions’ mood had changed markedly for the worse since Christmas. We were facing a ‘day of action’ from the unions in Wales. The steel unions had managed to call out their members in private steel companies. I replied that, while I had every respect for his views, I did not share his pessimism.
In fact, by this stage I did not
share Jim’s analysis of the situation at all. He really believed that we had already tried to do too much and that we should go no further, whether in the area of trade union law or general economic strategy. I, for my part, had begun bitterly to regret that we had not made faster progress both in cutting public expenditure and with trade union reform.
There was, of course, a more profound and general divide between us. For all his virtues, Jim Prior was an example of a political type that had dominated and, in my view, damaged the post-war Tory Party. I call such figures ‘the false squire’. They have all the outward show of a John Bull — ruddy face, white hair, bluff manner — but inwardly they are political calculators who see the task of Conservatives as one of retreating gracefully before the Left’s inevitable advance. Retreat as a tactic is sometimes necessary; retreat as a settled policy eats at the soul. In order to justify the series of defeats that his philosophy entails, the false squire has to persuade rank-and-file Conservatives and indeed himself that advance is impossible. His whole political life would, after all, be a gigantic mistake if a policy of positive Tory reform turned out to be both practical and popular. Hence the passionate and obstinate resistance mounted by the ‘wets’ to the fiscal, economic and trade union reforms of the early 1980s. These reforms had either to fail or be stopped. For if they succeeded, a whole generation of Tory leaders had despaired unnecessarily. Ian Gilmour expressed this feeling in the clearest form; but Jim Prior was infected by it too, and it made him timid and overcautious in his trade union policy. I had to stake out a more determined approach.
The Downing Street Years, 1979-1990 Page 13