PART 2

Trade Unions and the Law

A parallel fate awaited the more determined attempts by Wilson and Heath to fill the serious gap in civil law which had been opened up by the 1945 Labour government's repeal of the Trade Union and Trade Disputes Act 1927 and its subsequent failure to put any positive legal framework of union rights and duties in its place. Anthony Eden and Macmillan (along with the two most radical Tory Ministers of Labour, Iain Macleod and Edward Heath) were dissuaded from legislating by the Ministry of Labour's gloomy predictions of what would transpire if the hermetic, idiosyncratic processes of voluntary collective bargaining had a legal framework super-imposed upon them. Their inaction meant that popular concern about the operation of unions intensified, hardly surprising in view of their increasing membership and more substantial shopfloor presence.

Wilson was a politician with finely tuned antennae towards the changing currents of public opinion. He was well aware of the increasing concern that union power, both at the workplace and in public life, was growing, whilst remaining unaccountable. One of the principal causes was the apparent loss of individual freedom involved in the closed shop agreement making union membership a condition of employment for all employees (though white collar and technical workers were often exempted). The number of such agreements grew during the 1960s and 70s, as union membership increased and workshop organisation became more effective. Most employers found them convenient and typically found unions to become more co-operative as a result, ensuring that their members observed the terms and conditions mutually agreed. However, many employers disliked them, preferring instead 100% union agreements in which they encouraged employees to join recognised unions, but did not make membership a condition of employment.

Many individual workers came to view the closed shop as removing unions from the control of their members, giving union officials too much control over individuals' working lives. Another cause of public concern were demarcation disputes between unions about which of their members should be doing a particular job of work. The Court of Appeal's decision against the closed shop in 1963 in the Rookes v. Barnard case was publicly condemned by trade unionists and industrial relations academics as an unwarranted intrusion of the courts into a place where the rule of law did not belong. In retrospect, it seems self-evident that it was only a matter of time before some state institution moved to fill the gap whereby its citizens were left exposed without any legal redress for a significant part of their lives. After successive Conservative governments declined to act, the Judges of the Court of Appeal and the House of Lords felt bound to do so in order to uphold the principle that the rule of law had to operate regardless of boundaries of custom and practice.

Wilson used the Rookes v. Barnard decision adroitly to gain the tactical political initiative. He had made a conspicuous appeal at the 1964 TUC Congress, in the full glare of television cameras, arguing that the trade union movement must be willing to learn and move with the times and to implement reforms to its structures and rules. After his election victory, he moved swiftly to introduce legislation which effectively rendered the Lords decision against the closed shop null and void but he also appointed a Royal Commission on Trade Unions and Employers Associations (1965-68), with the clear intention of undertaking a major reform of the law regarding unions and collective bargaining. (1)

However, the Commission was effectively pre-empted from achieving the outcome which Wilson anticipated and many of its members desired. Its academic members waged a determined initiative aimed at structuring the evidence given and the research commissioned to suit their own ideas. Hugh Clegg, in particular, was active in arranging that the Commission should find no empirical basis to support the view that a positive legal framework of rights counterbalanced by responsibilities and duties was desirable for unions at the workplace and as voluntary membership organisations. His successful tactics were reflected in the Commission's report, and then reinforced by strong resistance from both the right and the left flanks of the Parliamentary Labour Party against the government's intention to implement a decisive legal reform.

In January 1969, the Secretary of State for Employment and Productivity, Barbara Castle - a determined innovator and close political confidante of Wilson - published her White Paper, "In Place of Strife", which included proposals for fines on trade unions which refused to hold strike ballots or agree to a 28 day "cooling off" period before strikes. The Labour Government faced solid opposition from the TUC General Council, where the balance of politics had tipped leftwards, since the retirement of Bill Carron and the election of Hugh Scanlon as AEU President. Scanlon took an active part, along with Jack Jones, General Secretary of the TGWU, in ensuring that union opposition to legislation remained inflexible, even when it came from a Labour government. The new TUC General Secretary, Victor Feather, judged it impractical and imprudent to resist the General Council's evident will to obstruct the government's intentions.

Though Wilson famously warned Scanlon to "get your tanks off my lawn, Hughie", the informed perception was that it was Wilson who turned tail and ran. (2) He manoeuvred his retreat under cover of legislation establishing a new quango, the Commission on Industrial Relations, which would encourage good industrial relations practice on a voluntary basis. But his public exposure had been too great. Edward Heath's clear general election victory of 1970 was the effective response to Wilson's u-turn. The electorate viewed the Labour government as a spent force. Though there had been much solid achievement, too few of the high hopes and loudly proclaimed aims in relation to the economy, prices and incomes policy and union reform had been realised.

Professor Nina Fishman, Senior Lecturer, History, University of Westminster, School of Social Sciences, Humanities and Languages

(1) Denis Barnes and Eileen Reid, 'Governments and Trade Unions, The British Experience 1964-79', 1980, p. 67; Paul Davies and Mark Freedland, 'Labour Legislation and Public Policy', 1993, p. 253.

(2) Peter Jenkins, 'The Battle of Downing Street', p.140, Ben Pimlott, 'Harold Wilson', 1992, pp. 530-43