Get Red Pepper's email newsletter. Enter your email address to receive our latest articles, updates and news.

×

Freedom for all?

The coalition has announced a 'Freedom Bill' to dismantle restrictions on liberties imposed over recent decades. But will it stop at the workplace? asks Keith Ewing

September 30, 2010
4 min read

In what has been an aggressive and unrelenting litigation strategy against trade unions, big employers have drawn blood in the courts, and lots of it. Encouraged by the court of appeal’s recent dictum that ‘in this country the right to strike has never been much more than a slogan or a legal metaphor’, they have won injunction after injunction, fatally wounding trade union activity, in case after case.

The current employer offensive began with the injunction in 2008 against Unite, in a dispute involving London bus workers. The union had informed the firm Metrobus of its strike ballot result two days later than the law required, and an injunction was granted – even though the delay caused neither loss nor inconvenience to the company.

This was before the BA cabin crew dispute produced the best known in an unprecedented wave of injunctions. Unite was on the receiving end there too, being stopped from taking action supported by more than 92 per cent of those voting in an 80 per cent turnout. The union was injuncted for mistakenly balloting some members who would not be taking part in the dispute (and whose involvement did not affect the result).

A fresh ballot was held, again producing an overwhelming majority on a high turnout. This time BA complained that the union had failed to notify its members of the full ballot result. Remarkably, the high court granted a second injunction, until a measure of sanity was restored on appeal, albeit by a tense 2:1 majority.

This litigation – along with other recent examples in the same vein – is all the more remarkable for the fact that the European Court of Human Rights in Strasbourg held in April 2009 that the right to strike is now protected by the European Convention on Human Rights. These rights are now supposed to be enforceable in the domestic courts, following New Labour’s flagship Human Rights Act (HRA).

But both the high court and the court of appeal refused to apply the Strasbourg court rulings on the right to strike, and in the recent court cases against unions refused to require English law to be read consistently with convention rights as the HRA demands.

So in yet another case of an injunction being granted on silly grounds, the RMT union has had to mount a challenge in Europe to defend its rights. In their case the union was stopped from taking action against electricity supplier EDF, after informing the company that it was proposing to ballot its engineer/technician members.

According to the high court, the union should have given more detailed information before the ballot, identifying the ‘fitters, jointers, test room inspectors, day testers, shift testers, or OLBI fitters’, as the employer demanded.

Similar action in Strasbourg is being contemplated by the NUJ, stopped from conducting a dispute about health and safety matters against Johnson Press on the grounds that it is a holding company, not the employer of union members. This is despite the fact that the Johnson Press stamp appears on the pay slips of all employees working on its titles.

These decisions reflect an unholy alliance between an unpleasant group of union-busting lawyers and a court system willing to encourage loopholes in what one judge referred to as ‘the inordinate complexity of the statutory procedures’. So much for the Human Rights Act, now barely a tattered rag in the hands of the English judges.

While this pantomime has been played out in the courts, the Tory-Liberal coalition has boasted that it will introduce a Freedom Bill, a bonfire of all the restrictions on liberty introduced by the New Labour government. While welcome, it remains to be seen if this bill will include a removal of the restraints on trade union freedom introduced by the Thatcher and Major governments, which New Labour was happy to retain.

We will soon find out. The coalition now has what may be an unwelcome opportunity to reflect on these matters. Labour backbencher John McDonnell came top of the MP’s ballot for private members’ bills, and on 22 October he will introduce his Lawful Industrial Action (Minor Errors) Bill into the House of Commons.

The conduct of the coalition in that debate, and its willingness to support this extremely modest measure to address the worst features of the current law, will be a revealing indication of the partisan nature of the government’s commitment to freedom, civil liberties and human rights. The response of the new Labour leadership will be equally revealing.

Keith Ewing is president of the Institute of Employment Rights and professor of public law at King’s College London

Red Pepper is an independent, non-profit magazine that puts left politics and culture at the heart of its stories. We think publications should embrace the values of a movement that is unafraid to take a stand, radical yet not dogmatic, and focus on amplifying the voices of the people and activists that make up our movement. If you think so too, please support Red Pepper in continuing our work by becoming a subscriber today.
Why not try our new pay as you feel subscription? You decide how much to pay.

Naomi Klein: the Corbyn movement is part of a global phenomenon
What radical writer Naomi Klein said in her guest speech to Labour Party conference

Waiting for the future to begin: refugees’ everyday lives in Greece
Solidarity volunteer Karolina Partyga on what she has learned from refugees in Thessaloniki

Don’t let Uber take you for a ride
Uber is no friend of passengers or workers, writes Lewis Norton – the firm has put riders at risk and exploited its drivers

Acid Corbynism’s next steps: building a socialist dance culture
Matt Phull and Will Stronge share more thoughts about the postcapitalist potential of the Acid Corbynist project

Flooding the cradle of civilisation: A 12,000 year old town in Kurdistan battles for survival
It’s one of the oldest continually inhabited places on earth, but a new dam has put Hasankeyf under threat, write Eliza Egret and Tom Anderson

New model activism: Putting Labour in office and the people in power
Hilary Wainwright examines how the ‘new politics’ needs to be about both winning electoral power and building transformative power

What is ‘free movement plus’?
A new report proposes an approach that can push back against the tide of anti-immigrant sentiment. Luke Cooper explains

The World Transformed: Red Pepper’s pick of the festival
Red Pepper is proud to be part of organising The World Transformed, in Brighton from 23-26 September. Here are our highlights from the programme

Working class theatre: Save Our Steel takes the stage
A new play inspired by Port Talbot’s ‘Save Our Steel’ campaign asks questions about the working class leaders of today. Adam Johannes talks to co-director Rhiannon White about the project, the people and the politics behind it

The dawn of commons politics
As supporters of the new 'commons politics' win office in a variety of European cities, Stacco Troncoso and Ann Marie Utratel chart where this movement came from – and where it may be going

A very social economist
Hilary Wainwright says the ideas of Robin Murray, who died in June, offer a practical alternative to neoliberalism

Art the Arms Fair: making art not war
Amy Corcoran on organising artistic resistance to the weapons dealers’ London showcase

Beware the automated landlord
Tenants of the automated landlord are effectively paying two rents: one in money, the other in information for data harvesting, writes Desiree Fields

Black Journalism Fund – Open Editorial Meeting
3-5pm Saturday 23rd September at The World Transformed in Brighton

Immigration detention: How the government is breaking its own rules
Detention is being used to punish ex-prisoners all over again, writes Annahita Moradi

A better way to regenerate a community
Gilbert Jassey describes a pioneering project that is bringing migrants and local people together to repopulate a village in rural Spain

Fast food workers stand up for themselves and #McStrike – we’re loving it!
McDonald's workers are striking for the first time ever in Britain, reports Michael Calderbank

Two years of broken promises: how the UK has failed refugees
Stefan Schmid investigates the ways Syrian refugees have been treated since the media spotlight faded

West Papua’s silent genocide
The brutal occupation of West Papua is under-reported - but UK and US corporations are profiting from the violence, write Eliza Egret and Tom Anderson

Activate, the new ‘Tory Momentum’, is 100% astroturf
The Conservatives’ effort at a grassroots youth movement is embarrassingly inept, writes Samantha Stevens

Peer-to-peer production and the partner state
Michel Bauwens and Vasilis Kostakis argue that we need to move to a commons-centric society – with a state fit for the digital age

Imagining a future free of oppression
Writer, artist and organiser Ama Josephine Budge says holding on to our imagination of tomorrow helps create a different understanding today

The ‘alt-right’ is an unstable coalition – with one thing holding it together
Mike Isaacson argues that efforts to define the alt-right are in danger of missing its central component: eugenics

Fighting for Peace: the battles that inspired generations of anti-war campaigners
Now the threat of nuclear war looms nearer again, we share the experience of eighty-year-old activist Ernest Rodker, whose work is displayed at The Imperial War Museum. With Jane Shallice and Jenny Nelson he discussed a recent history of the anti-war movement.

Put public purpose at the heart of government
Victoria Chick stresses the need to restore the public good to economic decision-making

Don’t let the world’s biggest arms fair turn 20
Eliza Egret talks to activists involved in almost two decades of protest against London’s DSEI arms show

The new municipalism is part of a proud radical history
Molly Conisbee reflects on the history of citizens taking collective control of local services

With the rise of Corbyn, is there still a place for the Green Party?
Former Green principal speaker Derek Wall says the party may struggle in the battle for votes, but can still be important in the battle of ideas

Fearless Cities: the new urban movements
A wave of new municipalist movements has been experimenting with how to take – and transform – power in cities large and small. Bertie Russell and Oscar Reyes report on the growing success of radical urban politics around the world

A musical fightback against school arts cuts
Elliot Clay on why his new musical turns the spotlight on the damage austerity has done to arts education, through the story of one school band's battle