The New Rights: Labour Law and Ideology in the Thatcher Years SANDRA FREDMAN*

The resignation of Margaret Thatcher in late 1990 closed a decade which witnessed a barrage of labour legislation, the effect of which was to transform labour law. Critics have powerfully demonstrated the repressive effects of this legislation on freedom of association, collective bargaining and trade unions in general,1 and Thatcher herself lost little opportunity to promote her crusade against trade unions. Yet each new piece of legislation has been justified by policy-makers in the Thatcher Government as advancing, not only market goals such as efficiency and competitiveness, but also the high-minded ideals of freedom, democracy and individual rights. This latter representation of the legislative programme has unquestionably taken hold of the popular consciousness; to such an extent, indeed, that the Labour Party, with its eye on electoral success, has refused to repudiate some of the legislation's central tenets. This article suggests that an important element in the success of the labour law of the Thatcher years was its ideological power.2 As Kahn-Freund put it: 'One should not underestimate the real significance of verbal magic'.3 Concepts such as democracy, rights and freedom immediately appeal to the highest ideals of liberal society. Yet each of these notions is open-textured and capable of being infused with a wide range of meanings.4 By capitalizing on the shifting denotations of these ideas, the Thatcher Government has successfully engendered a wide measure of consensus supporting measures which are in reality highly restrictive of workers' rights and trade unionism. It has also effectively deprived its opponents of the vocabulary of democracy: criticisms of aspects of the current legislation can simply be labelled as 'anti-democratic' and dismissed. At the same * FcUow and Tutor in Law, Exeter College, Oxford. The author ii very grateful to Professor Lord Wedderburn, Professor Hugh Coiling and Dr Mark Freedland for their valuable comment! on earlier drafts of this paper. ' Lord Wedderbum 'Freedom of Aiiociation and Philosophic! of Labour Law' 1989 1LJ 1, Lord Wedderbum Tht Worker and Tht Lam (3rd ed) (Pelican, 1986) 68-96; Lord Wedderbum "The New Policies in Industrial Relation! Law' in P. Fosh and C. Littler Industrial Relations and tht Law in tht 1980s (1985) 22-65. 1 On ideology, tee Gramici A Gramsci Reader (D. Forgacs ed, Lawrence and Wishart Ltd, 1988) 196-200; Ralph Miliband The Stau in Capitalist Society (Quartet Books, London, 1973), csp 161-5; R. Levitai 'Ideology and the New Right' in R. Levitas (ed) The Ideology of the New Rifht (Polity Press, 1986), 1-24. 1 Paul Davies and Mark Freedland (ed) Kahn-Freund's Labour and the Law (3rd ed) London 1983, 24. * Kahn-FrtiauTs Labour and the Law (above n 3) 24; this point is elogently made in relation to trade union! by V. Allen The Militancy of British Minen (1981) at 260: 'At different times, unions have been attacked for being too centralized or too decentralized, for having strong leadership or weak leadership, for having too much consultation with the members or too little . . . (always) in the name of democracy'. c

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time, the operation of the new laws has shown that notions of democracy and freedom have effects beyond the realm of ideology. Democracy in particular has its own momentum and has at times achieved results directly opposite to those intended. This in turn has led to the Government reversing its commitment to these ideals in some key respects. This article considers the way in which the concepts of democracy, rights and freedom have been used in Government policy statements and resulting legislation, and attempts to reveal some of the basic assumptions and contradictions which have allowed these ideals to be harnessed to the Government's cause.' The conclusion airs some of the dilemmas which this analysis poses for future policy-makers.

I Democracy (a) Government Justifications Government Green Papers preceding each of the main labour law statutes of the decade provide striking illustrations of the reliance on the shifting meanings of the central concepts. A central theme has been the need for legislative imposition of democracy within trade unions. Apart from the general statement that internal democracy is good for industrial relations,6 at least three sets of justifications have been put forward. First and most prominent is the assertion (without supporting evidence) that trade union leaders are not sufficiently accountable to their members. Thus, according to the 1981 Green Paper Trade Union Immunities, unions must be 'fully representative of their members and responsive to their wishes and interests'.7 The use of legislation to achieve this is justified by reference to the 'criticism that leaders are often out of touch with the views of members and sometimes pursue policies which the majority of their members do not support'.8 The 1983 Green Paper asserts that 'in the case of many unions the role and influence of the rank and file seems to be minimal and all too often it is evident that the policies which are being pursued do not reflect the views and interests of the members'.9 This is alleged to be particularly true in respect of industrial action, where it is asserted (again without supporting evidence)10 that ' It ii not being asserted that there wai a coherent 'mastcrplan' drawn from the ideology of the New Right. However, it seems clear that an ideology evolved, drawing on the New Right and other sources, which was successfully used to justify much of the legiilation. Cf S. Auerbach Legislating for Conflict (1990) 239. 6 Tradt Union Immunities (Cmnd 8128, 1981) pan 19-20. 7 Ibid, para 20. 1 Ibid, para 245. ' Democracy in Trade Unions (Cmnd 8778,1983) pare 1. Note the distorted view of the Donovan Report: contrast Royal Commission on Tradt Unions and Employers' Associations (1965-1968), (The Donovan Report) (Cmnd 3623, 1968), para 633, which is quoted in the Green Paper as criticizing the level of membership participation in poll*. The Oreen Paper, however, omits to mention the Donovan point that it is unreal to expect the same level of participation as in Parliamentary elections, and that constantly changing membership often reduced the level of participation. 10 Indeed, the 1981 Green Paper Tradt Union Immuniiits specifically refers to the Donovan Commission's view that there was little justification for the view that workers were less likely to vote for strike action than their leaders, (para 247).

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'too often in recent years it has seemed that employees have been called out on strike by their unions without proper consultation and sometimes against their express wishes'." Secondly, the Green Papers focus on the issue of trade union immunities, and here the shifts of meaning are particularly apparent. Thus, it is stated: 'Trade union power, which springs from legal immunities and privileges, can be used not just against employers but against individual members of unions. As the law has granted these privileges, it is necessary to consider whether the rights of individual members of trade unions are adequately protected and whether those who exercise power in the name of the membership are properly accountable to their members'.12 There is no attempt to substantiate the assertion that power springs from legal 'privileges'; indeed, as will be argued later, the terminology of 'privilege' is deliberately used to create an impression of unwarranted legal status. A similar impression is created by the third justification given for legal imposition of trade union democracy, namely public concern. Thus the 1983 Green Paper begins by stating that 'much public concern has been voiced about the need for trade unions to become more democratic and responsible to the wishes of their members'.13 The public interest in the affairs of unions is said to arise out of the important 'legal immunities and privileges not afforded to other organizations'.14 Similarly, 'the unique legal status which trade unions enjoy and the power their leaders possess to initiate industrial action which can damage the economic and commercial interests of others make it essential for their internal affairs to be conducted in a manner which commands public confidence. That confidence is bound to be lacking if individual members are denied a fair opportunity to register their views on all matters which directly concern them'.15 (b) The Legislation This approach to democracy was translated into legislative form in three main areas: trade union elections, industrial action, and the political fund.16 The power of such intervention was intensified by the fact that it was harnessed together with the provisions of the Employment Act 1982 (and expanded in the Employment Act 1990),17 which exposed unions to liability in tort and established a special code for vicarious liability. The effect was to make their funds " Trade Union Immumius (Cmnd 8128, 1981) para 247, and »ee aljo para 254. Democracy in Trade Unions (Cmnd 8778, 1983) para 3. " Ibid, para 1. " Ibid. " Ibid, para 3. For a detailed description of the Parliamentary and other debates on the legislation relating to trade union democracy, see S. Auerbach Legislating for Conflict (Oxford, 1990), chs 6 and 7. '* Balloting was also introduced in respect of the dosed shop, where extraordinarily high majorities were required before dismissal for refusal to belong to the relevant union or unions would be lawful. Democracy in respect of the closed shop was, however, dropped as an ideal by the late 1980s. See below. There are also numerous other interventions in trade union affairs, but these do not purport to be 'democratic' and so are not dealt with here. (See for example, Employment Act 1980, s s 4 and 5). 17 Employment Act 1982, s 15 as amended by Employment Act 1990, s6. 11

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vulnerable to large fines for contempt, and, ultimately, sequestration. A brief summary of these measures is now given. (i) Elections The legislation requires that every member of the principal executive committee of the union be elected to that position.18 A specific model of democracy is prescribed, based on four principles. Firstly, every member of the union must have the right to vote directly for the executive members." Voting according to hierarchical systems is excluded.20 Secondly, elections must be postal. The workplace alternative permitted in the 1984 Act was repealed in 1988.21 Thirdly, the provisions are restricted to the principal executive committee, excluding shop stewards and union officials lower in the hierarchy. Originally, only voting members of the executive committee were required to stand for election. But the 1988 Act extended this to include certain non-voting members, with a somewhat clumsy attempt to exclude professional advisers. Most importantly, regardless of the rules, the president and general secretary are required to submit themselves for election whether or not they have a vote.22 This gives no scope to those unions who regard these officers as senior bureaucrats, employed for their professionalism rather than their popularity among the members. Finally, elections must be periodic, with a maximum five year period of office. Thus officials will no longer be able to be elected for life, as was previously the case in some unions. In another set of detailed provisions, the Act prevents unions from unreasonably excluding candidates, and from requiring candidates to be a member of a political party.23 There is a complex web of regulations requiring unions to permit and distribute election addresses,24 to keep an up-to-date register of members,23 and to appoint independent scrutineers before an election is held.26 (ii) Industrial action The provisions requiring ballots before industrial action are possibly the most complex and obscure in the whole package. Briefly, immunities against civil action for specified torts are withdrawn if a union fails to hold a ballot in the prescribed form before undertaking industrial action.27 Before the introduction of the Employment Act 1988, the only beneficiary of these provisions was the employer, who could sue the union in tort, and obtain damages and, more importantly, an interlocutory injunction where appropriate. In 1988, this was supplemented by a statutory remedy for union members who claimed that " Trade Union Act 1984, s 1(1). " Ibid, s 2. For an example, sec the procedure used before 1988 by the General and Municipal Worker! Union, described in R. Undy and R. Martin Ballots and Trad* Union Democracy (Blackwell, 1984) 90-2. " Trade Union Act 1984, s 2 at amended by Employment Act 1988, s 14. n Trtele Union Act 1984,11 ai amended by the Employment A n 19R8, 112. " Trade Union A n 1986, i 2 ( 9 H 1 2 ) . 14 Employment Act 1988, s 13. n Trade Union Act 1984, s4. 24 Employment Act 1988,115; ai amended by Employment Act 1990 s 5. 17 Trade Union Act 1984, s 10 as amended by Employment Act 1990, S3 7, 8 and schedule 2. 20

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industrial action had been authorized or endorsed without a ballot. Regulations regarding the conduct of the ballot are detailed and in part biased against a favourable result. For example the ballot paper must contain, firstly, a statement that participation in a strike or other industrial action may be in breach of a member's contract of employment, and, secondly, a question which asks the voter whether he or she is prepared to take part in a strike.29 The statement is required even if the action is clearly not a breach of contract (such as a ban on voluntary overtime). Later legislation also requires the ballot paper to specify who is authorized to call industrial action.30 No material other than that specified in the various enactments may be included on the ballot paper.31 Regulations governing the balloting constituency are intricate to the point of obscurity. Their main aim is to ensure that the union does not draw the boundaries of a constituency in such a way as to 'swamp' a moderate workplace by a more militant one. Thus in general, ballots must be confined to individual workplaces, but the result of ballots may be aggregated in specific circumstances.32 The ballot must be secret, but, exceptionally, postal ballots are not mandatory, and a workplace option is permitted.33 (iii) Political funds The legislation on political funds can be dealt with more briefly. It has been necessary since 1913 to hold a ballot to establish a political fund. The 1984 Act introduced two important innovations. Firstly, a new ballot must be held every ten years and the fund may only be retained if a majority vote in favour. All unions with political funds at the date of commencement of the Act were required to ballot their members by 31 March 1985.M Secondly, the 1984 Act widened the definition of activities which could only be financed out of a political fund, and therefore could not be undertaken at all if a union had no such fund.35 (iv) Context It is essential to note that the provisions relating to trade union democracy are found within a broader context of legislation and political action explicitly undermining trade unions. Industrial action in particular has been severely curtailed: all forms of secondary action are prohibited by the Employment Act 1990 (with a restricted exception for peaceful picketing);36 picketing is restricted " Employment Act 1988, > 1(2); as amended by Employment Act 1990, • 7. K For industrial action ihort of a strike, an alternate question is prescribed: Trade Union Act 1984, s 11(4) as substituted by Employment Act 1988, schedule 3 para 8(d); and see Employment Act 1990, s 7. 30 Employment Act 1990, s 7. 91 It is revealing that in the Governments's draft code of practice the example of a ballot paper contained the option of answering 'no' before 'yes': Department of Employment Draft Statutory Code of Practice on Trade Union Industrial Action Balloting (1988) 19. This doej not appear in the final version: Employment Code of Practice (Trade Unum Ballots on Industrial Action) Order (SI 1990 No 601). u Trade Union Act 1984, s 11, as amended by Employment Act 1988, s 17. 33 Trade Union Act 1984, s 11. Nevertheless, the code of practice on industrial action ballots suggests that such ballots should be held except in the most exceptional of cases: Employment Code of Practice ( Trade Union Ballots on Industrial Action) Order (SI 1990 No 601) para 20. 34 Trade Union Act 1984, s 12. " Trade Union Act 1913, s 3, as inserted by Trade Union Act 1984, s 17. See also Employment Act 1990, s 5. * Employment Act 1990, s 4.

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to a single workplace and normally only six pickets may participate; and the role of interlocutory injunctions leading to fines and sequestration has become central.37 In addition, high rates of unemployment in the earlier years of the decade undermined trade union membership38 and participation by unions in political decision-making has been virtually eliminated. Freedom of association is no longer encouraged by the State in relation to its own employees, and attempts have been made to undercut collective bargaining by encouraging more individual negotiation, particularly through individual merit payments. (c) Critique Despite its general popular appeal, the concept of democracy utilized in the Thatcher legislation is based on a specific, essentially individualistic, model. Drawing on well-established traditions, this model depicts the pursuit of selfinterest as the overriding goal of individuals, who are therefore fundamentally in competition and conflict with one another. 'Rationality' is equated with the maximization of self-interest. Leaders, like all other individuals, are portrayed as acting largely in pursuit of their own selfish ends rather than those of the people. The function of democracy is therefore primarily protective: the power of leaders is restrained by making them accountable to the majority by periodic ballots, competition between potential political representatives, a separation of powers and freedom of speech.39 Moreover, the protective function is considered sufficiently served by such a framework. Hence in periods between elections there is little or no scope for popular participation. The reliance on postal ballots, the centrepiece of reform, highlights the individualism of this view. Postal ballots are a highly atomistic form of participation, requiring individuals to exercise their choice in the isolation of their own homes without further participation in debate and discussion. The Green Papers justify this by asserting that both mass meetings and workplace ballots are open to manipulation and intimidation.40 Leaders and activists are portrayed as hostile to individual freedom of choice, rather than as facilitators of participation and debate.41 The suspicion of the motives of union leaders is further manifested in the Employment Act 1988, which requires unions to appoint independent scrutineers:42 union leaders should not be trusted, on this view, even where the ballot is postal.43 It is striking too that the legislation 37 O n injunction!, ice L o r d Wedderburn "The Injunction and the Sovereignty o f Parliament' (1989) 23 The Law Teacher 4; S. Auerbach 'Injunction Procedure in the S e a f a r e n D i i p u t e ' (1988) 17 ILJ 227. " A trend w h i c h persisted despite the upturn in e m p l o y m e n t in the m i d 1980s. K J. Bentham A Fragment on Government (W. Harrison (ed), Basil Blackwell, Oxford, 1960); James Mill An Essay on Government (Cambridge U n i v e n i t y Press, Cambridge 1937); D . H e l d Models of Democracy Basil Blackwell, Oxford, 1987) 6 6 - 7 0 . Hayek differed in part from thii view. H e emphasized the central importance of spontaneity and 'antirarionalijt' evolution of social institutions and saw 'dogmatic' democracy M inimical to liberty: F. A. Hayek The Constitution of Liberty (Routledge and K e g a n , L o n d o n , 1960) 5 4 - 7 0 , 1 0 3 - 1 7 . 40 Democracy in Trade Unions ( C m n d 8 7 7 8 , 1983) para 56. 41 Trade Union Immunities ( C m n d 8128) para 20.

a 43

Employment Act 1988, • 15. Trade Unions and Their Members (Cm 95, 1987) para 5.20.

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prohibits trade union interference, but is silent on interference by employers or third parties.44 Paradoxically, then, individuals who are open to manipulation in the workplace and at mass meetings are suddenly portrayed as rational and free in their own homes, impervious to the influence of the media, the employer or government propaganda. Moreover, it is assumed that the conservative decision is the 'rational' or 'moderate' one. It is crucial to note at this stage that the emphasis of the Thatcher Government on democracy within trade unions, even in this individualistic form, is in conflict with other strands of the New Right ideology. The logic of liberal individualism entails hostility to all trade unions, however democratic. On this, 'free market' view, individuals can only achieve fulfilment if they are left to act in 'competitive isolation' in the market45 with minimal interference by the State or other collectives, particularly unions. Unions, argues Hayek, are 'economically very harmful and politically exceedingly dangerous',46 because they destroy the spontaneity of the market order. Indeed, Hayek is at best a reluctant democrat, even with respect to national politics.47 Why then the commitment to democracy? A major reason relates back to Kahn-Freund's 'verbal magic': the label 'democracy' has been successfully used to mask legislation which is inimical to collective interests and workers' rights. This is evidenced not only by the fact that 'democratic' provisions sit side by side with legislation which gives expression to the 'free market' by explicitly curbing union's activities. In addition, as will be argued below, the provisions themselves militate against collective interests. A second, equally important reason, is pragmatic. Extrapolating from the fact that many trade unionists voted for the Conservatives in the 1979 and 1983 elections, policy-makers concluded that trade union members were less militant than their leaders. The insistence on accountability was part of a calculation that this would result in more 'moderation' or acquiescence by unions to government policy.48 The use of democratic terminology can be criticized from six major angles. First, and most important, the individualist assumptions at the heart of protective democracy are questionable, together with the notion that democracy is exhausted by periodic ballots, rather than by more extensive forms of participation in groups or society in general. Useful critiques of this view of democracy may be derived from other notions of democracy. Thus theories of'participative' or 'developmental' democracy4' reject the view that society consists of isolated and competitive individuals. Instead, individuals are portrayed as social beings, gaining fulfilment through social interaction and co-operation rather than through mere self-interest. Participation in the community and in groups is seen as essential to the expansion of individual capacities. On this view, democracy is Trade Union Act 1984 12, as amended by Employment Act 1988 • 14(2). Held, op cit 244. F. A. Hayek The Constitution of Liberty (Routledge, London 1960) 272. Ibid, 103 ff; F. A. Hayek Law, Legislation and Liberty (Routledge, London, 1979) chi 16 and 17. R. Undy and M. Martin Ballon and Tradt Union Democracy (Basil Blackwell, Oxford, 1984) 11. C Pateman Participation and Democratic Theory (Cambridge University Press, 1970) chapter II.

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not exhausted by accountability of leaders through ballots, but requires participation by individuals in as many spheres as possible. Protective democracy can also be contrasted with pluralist theories50 according to which the individual's participation in periodic elections is but a minor aspect of democracy. The more important sources of social power, on this view, are groups, including organizations of capital, labour, and pressure groups of various sorts. Thus the freedom to associate and act in groups is crucial to effective political participation. To these sources of criticism can be added Kahn-Freund's more general point, namely that democracy as it functions in the political sphere cannot necessarily be transplanted to trade unions. Most importantly, dissident members can generally secede from trade unions, an option not available in normal circumstances to dissatisfied citizens or political groupings in the modern state. One implication of this, he argues, is that competition between political parties is not normally appropriate in the trade union setting." From these perspectives, some of the weaknesses of the New Right version of trade union democracy can be highlighted. Participation by workers in a more general sense has in fact been undermined rather than enhanced. Thus the Thatcher Government was implacably opposed to all EEC initiatives on workplace democracy,52 while at the same time using high unemployment and legislative intervention to undermine workers' ability to achieve more effective participation in workplace decision-making by voluntary as opposed to legal means. Equally important has been the weakening of workers' ability to participate through their unions in national political affairs. Many tripartite bodies, established as part of the 'corporatism' of the 1970s, have been abolished or stripped of power; on those that remain, employers' interests frequently have a majority vote.53 Paradoxically, too, the requirements for ballots in respect of the political fund, while increasing members' rights within the trade union, also place limits on the activities of unions in the political sphere which are shared by no other association.54 For example, an amendment to the Companies Bill in the House of Lords which required companies to ballot shareholders before making contributions to political parties was recently rejected.55 50

Held, op tit 186-220. " Kahn-Freund, op cit 272-4; for similar argument! see R. Undy and R. Martin Ballots and Trade Umon Democracy (1984) 168; H. Clegg The Changing System of Industrial Relations in Great Britain (1971) 210; Lord Wedderbum of Charlton and B. Bercusson 'United Kingdom' (1988) 17 Bulletin of Comparative Labour Relations 107; contrast Lipset, Trow and Coleman Union Democracy (1956). " The UK Government hai opposed the Fifth Directive on Company Law (OJ C131/72) and the 'Vredeling' Directive (OJ C213/83), as well as proposals for a European Company Statute and proposals on consultation in 1990. The only steps taken in this direction arc the promotion of share ownership and profit-sharing, which arc more consistent with individual capitalism than workplace democracy. On the Utter, see Income and Corporation Taxes Act 1988, ss 185, 186, and 169-184; H. Collins 'Employees Shire Option Schemes' (1989) 18 ILJ 54. 33 For example, the tripartite Manpower Services Commission was abolished in 1988, and its functions transferred to the Training Commission, set up under the Employment Act 1988, Part II, which also gave the Secretary of State power to appoint a further six 'employer' representatives. The Training Commission was itself abolished in 1989 and its functions transferred to the Department of Employment's Training Agency. The operations of tripartite Wages Councils hive been significantly reduced, and the National Economic Development Council has lost both its power and its genuine tripartism. M There is no doubt that one aim of the provisions was to weaken the link between unions and the Labour Party. " Companies' obligations are limited to disclosing their political donations annually: Companies Act 1985, Sched7.

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These limitations on unions' political power have been justified, consistently with 'protective democracy', in terms of reinstating the supremacy of Parliament," the argument being that trade unions' influence on Government decision-making during the 1970s effectively sidestepped Parliament. However, as pluralist theorists would argue, a necessary element of democracy is the need to disperse State power; society without a multitude of organizations independent of State power has a high degree of dictatorial potential. This is because such voluntary associations function as a source of new opinions, a means of communicating such opinions, a training ground in political skills and a basis of opposition.57 In other contexts, of course, the New Right is an arch-proponent of the need to disperse State power. Yet legislative intervention of the highly regulative form found in the Trade Union Act 1984 and Employment Acts 1988 and 1990 inevitably increases the extent to which power is centralized. A second and related source of criticism of the legislative notion of democracy relates to its selective imposition. It is striking that the rhetoric of democracy is targeted only at the internal affairs of trade unions, ignoring other equally important associations, such as the CBI, companies or even the Conservative Party itself. The assumption that democracy can be successfully introduced in such a selective manner has been controverted by Lipset et al, in their seminal study of trade union democracy,'8 where democracy was assessed according to the extent to which well-developed opposition parties were able to flourish. They found that inter alia the chances of democracy were enhanced by greater security in the relationship between the union and management, as well as by greater interest on the part of the workers in their work, and more leisure time available for engaging in political activity within the union." A third source of criticism concerns the image of trade unions which underpins the legislation on democracy. The selective imposition of democracy on trade unions is justified by the assumption that unions are the major source of inequality in society, exercising unjustified and excessive power as against their members.60 Indeed, according to Hayek, the 'real exploiters in society are not egotist capitalists or entrepreneurs . . . but organisations which derive their power from the moral support of collective action and the feeling of group loyalty'.61 It is only through coercion that unions can maintain their membership, 'since it is not in the interest of all workers to submit to such control'.62 This gives no credence to the possibility that unions may enhance the power of individual members, and successfully conceals the real source of inequality, * Undy and Martin, op cit 7-8. 57 These arc discussed in S. M. Lipset, M. Trow, J. S. Coleman, Union Democracy (Anchor Books, New York, 1962) 82-5. H Defined as the existence of an organized opposition. " Lipset et al, op cit 465. " Democracy in Trade Unions, (Cmnd 8778, 1983) paras 1, 12. " F . A. Hayek Lam,

Legislation

and Liberty

vol I I I , 9 6 . See also F. A. Hayek The Constitution

of

Liberty

(Routledge and Kegan, London 1960) 269. Generally on Hayek's influence in labour legislation, see Wedderburn 'Freedom of Association and Philosophies of Labour Law' (1989) 18 ILJ 1. u F. A. Hayek Constitution of Liberty 273. Similarly, he asserts that industrial conflict ii caused by coercion of workers.

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namely that between employers and workers. Instead the workplace is depicted as a natural hierarchy, where the rhetoric of efficiency is paramount. The fourth source of criticism of the legislation on democracy relates to its bureaucratic nature. A legislative code, particularly one as detailed as this, requires a host of specialists, lawyers and bureaucrats to administer it. Few ordinary members (and indeed few lawyers) can now comprehend the legislation on industrial action, particularly that relating to balloting constituencies, and so decisions on this issue must be delegated to specialist lawyers.63 Union administrators will have their workload vastly increased by such aspects as the maintenance of the register of members. Section 13 of the 1988 Act, which deals with election addresses, alone consists of six subsections and ten sub-subsections, including provisions concerning such minutiae as copying, distribution, and availability of facilities.64 Although some complexity is unavoidable to achieve a fair democracy, no attempt has been made to ensure that the bureaucracy spawned by the legislation does not in itself stifle democracy. In his well known discussion on 'the iron law of oligarchy', Michels argued that democracy in any organisation is inevitably subverted by bureaucracy.65 Like most organizations, trade unions tend to develop a hierarchically organized bureaucratic structure, necessary to administer the affairs of the organization, to be 'responsible' in dealings with management and to eliminate managerial arbitrariness.66 With specialization and bureaucracy come concentration of power and alienation of the mass of the electorate from their leaders. The inevitability of this development may be open to question. But whatever view one takes, the problem of bureaucracy is necessarily exacerbated by the present legislation. Fifthly, majority support in a ballot, although usually necessary, is not a sufficient condition of the legality of industrial action. Clearly, no notion of democracy can depend on pure majoritarianism: some limits, such as the prevention of violence or protection of basic liberties must be superimposed on majority rule. However, the reasons why, in the context of the present legislation, majority support is not sufficient for legality are not in themselves justifiable by reference to democratic theories. This is partly because of the technicality of the ballot rules and partly because of the structure of the economic torts. In several recent cases, employers have taken legal action contesting technical points in the balloting procedure despite the fact that majority support had been obtained.67 Even if the court rejects the employer's claims, substantial cost and delay may be incurred. Indeed, there is no doubt that such technicalities will often be used by employers simply as a delaying tactic, thus potentially 63 The ILO has criticized the volume and complexity of recent British Labour law as itself consisting of a failure to meet international standards: Committee of Experts, Report 111, Pirt 4A, Geneva, ILO, 1989, 235—41. ** Employment Act 1988, s 13. The Code of Practice on Ballots before Industrial Action is a further example: See B. Simpson 'Code of Practice on Trade Union Ballots on Industrial Action'(1990) 19 1LJ 29. M Robert Michels Political Partits (Free Press, 1949), 401. ** Lipset et al op cit 8. 67 See The Pott Office v The Union of Communication Workers [1990] IRLR 143, noted by S. Auerbach,( 1990) 19 ILJ 120. See also BRB v NUR (1989] IRLR 345; London Underground v NUR [1989) IRLR 341; Monsanto v TGWU [1987] ICR 269.

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frustrating a substantially democratic outcome.58 For example, during the dock strike of 1989, it took more than four weeks for the House of Lords to uphold the legality of the action, during which time the validity of the ballot expired, and a new ballot was necessitated. By this time, predictably, most of the steam had gone out of the action.69 Even where the ballot is technically unassailable, there is no guarantee that the action is lawful. This is because liability for industrial action still rests on the shifting sands of the economic torts. Thus primary action supported by a majority in a ballot and untainted by picketing may be tortious if a cause of action can be devised which has no immunity under section 13 of the Trade Union and Labour Relations Act 1974.70 Finally, the rigidity of the legislative code may undermine democratic effects, particularly in the light of the wide diversity of union needs, structure and government. For example, a requirement that all elections be by means of direct voting in elections may consign smaller occupational groups to perpetual insignificance.71 More importantly, postal balloting frequently leads to lower participation rates than workplace ballots.72 More generally, there is no attempt to consider the inter-relationship, highlighted by Kahn-Freund, between democracy and autonomy.73 It is questionable whether the law should play so central a role in trade union affairs at all. The imposition of democracy on trade unions has not, however, had only negative effects. After initial resistance, unions now accept balloting as an accepted part of industrial relations.74 Nor has the response of the majority of trade unionists necessarily been more conservative. All political fund ballots returned clear majorities for the retention of the fund, and some unions set up funds for the first time.75 Postal ballots in elections for executive members have not resulted in fundamental changes to the outcome.76 Strike ballots have frequently strengthened the hand of unions.77 Indeed, it is arguable that the operation of the legislation has exposed the flaw in the assumption that individual's 'rational' choices lead them to seek competitive isolation rather than fulfilment through collective action. This in turn has led to significant backtracking on the part of the Government, illustrating the lack of genuine commitment " See S. Auerbach 'Injunction Procedure in the Seafarers Dispute' (1988) 17 1LJ 227. Since the Employment Act 1988, similar action could be taken by individual dissident members. M Associated British Ports v TGWU [1989) IRLR 399. This difficulty has been mitigated by the Employment Act 1990, s 8. 70 See the argument in Associated British Ports v TGWU [1989] IRLR 305 (CA) (The House of Lords reversed this decision but on a different and narrower point). See also the argument in Barrats & Baird v IPCS [1987] IRLR 3; S. Fredman 'The Right to Strike: Policy and Principle' (1987) 104 LQR 175. " For example, NALGO has attempted to counteract domination by local government officers by reserving a small number of seats on its executive for filling by indirect election. This has been seen as a way of ensuring proper representation of members working in other sectors. This system is probably unlawful under the ACT: P. Elias and K. Ewing Tradt n 73 74 75

Union Democracy:

Members'

Rifhts

and the Lots (Mansell, L o n d o n , 1987) 141.

Undy and Martin, op cit, 108; Labour Research, May 1990, 12. Kahn-Freund's Labour and the Law, o p cit 274. ACAS Annual Report, 1989. John W. Leopold Trade Union political funds: a retrospective analysis' (1986) 17 Industrial Relations Journal

287. 7 * Labour Research, M a y 1990, 1 1 . 77 ACAS Annual Report, 1989.

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to democracy.78 Thus the Employment Act 1988 prohibits a union from disciplining a member who inter alia refuses to go on strike even if there has been a majority in favour of such action.79 It is here that individualism takes precedence over democracy: indeed it seems that 'no argument can dent the shield which a priori must protect "the individual" and curtail the union'.80 In addition, the assumption that trade union members are more conservative than their leaders has now been reversed: the 1989 Green Paper Unofficial Action and the law describes unofficial action as the major current problem,81 thus acknowledging that trade union members may be more militant than their leaders. This is reflected in the Employment Act 1990, which makes the trade union liable for industrial action called, not only by those empowered by the rules or in senior positions, but also 'by any other committee of the union or any other official of the union (whether employed by it or not)'.82 A union can only escape liability in these circumstances if severe repudiation provisions are complied with.83 Indeed, the extent to which leaders are required to go to repudiate unofficial action threatens to undermine their true accountability and replace it with a measure of authoritarianism.

II Rights The vocabulary of 'rights', like that of democracy, has been at the forefront of the ideology of Thatcherism. This too has important persuasive power. A claim which is given the label of 'right' is not simply made legally enforceable; it also gains legitimacy and moral superiority over other claims. Such persuasive power has been fully utilized. This is illustrated by considering two 'rights' which have been centrally endorsed in the legislation of the 1980s: the right to work, and the right not to belong to a trade union. Both have been used to further a specific purpose, namely to undermine the power of trade unions; yet the cloak of 'rights talk' has been successfully used to legitimate this aim. To do this, however, it has been necessary to use the notion of a right in selective, and sometimes conflicting, senses. Thus, according to the 1987 Green Paper, the 'right of the individual to choose to go to work despite a call to take industrial action is an essential freedom'.84 Similarly, it is asserted, there is a 'right to cross a picket line and go to work'.85 A parallel development can be discerned in the common law, in the form of a right ™ See for d i m p l e statement! by C. Hanson and G. Mather, memben of the right wing policy study group, the Institution of Economic Affairs, that balloting merely lends 'spurious legitimacy' to industrial action in the public services: C. G. Hanson and G. Mather Striking out Strikes: changing employment Relations in the British Labour market (Institute of Economic Affairs, 1988). 79 Employment Act 1988, s 3. "° Waddcrburn and Bercunon op cit 130. " Unofficial Action and The Law (Cm 821, 1989), ch 1. a Employment Act 1990, s 6(3). n Ibid, s 6(5). 84 Trade Unions and their Members (Cm 95, 1987) para 2.10. " Ibid, para 2.22.

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to go to work without undue harassment.86 This is, however, a highly selective use of the concept of a 'right to work'. In times of high unemployment, it is clearer than ever that the right to work contains no correlative obligation against the State or the employer.87 There has never been a generalized right to be granted a job; the limited right to obtain work under the Dock Labour Scheme was abolished in 1989 on the grounds that it was 'inefficient'. Even the minimal protection afforded by the unfair dismissal legislation against termination of employment has been undermined during the 1980s by such devices as increasing the qualification period and keeping compensation rates low. This is reinforced by the Employment Act 1990, which permits employers selectively to dismiss workers who participate in unofficial action.88 Nor is there a right to work enforceable against the State; to the contrary, social security provisions in the form of income substitution have been whittled away. Instead, the right to work is enforceable only against the trade union. Hence the prohibition against unions' taking disciplinary action against members who refuse to go on strike, even if a majority in a properly conducted ballot has been obtained. The ideological use of the right to work is particularly well illustrated during the bitter miners' dispute of 1984, when both sides used it as part of their propaganda; the National Union of Mineworkers to argue against redundancies, the Government in order to justify preventing picketing. The emphasis on the right to work in Government policy documents does not include a right not to work; indeed, such a freedom is more circumscribed than ever. For example, there is a strong element of compulsion in respect of Government training schemes: a claimant for unemployment benefit may be disqualified if he or she has refused or failed to apply for a place on an approved training scheme, or has lost a place through misconduct or voluntary resignation.89 There is also a general duty to be actively seeking work as a condition of eligibility for unemployment benefits.90 This is particularly true in relation to refusal to work in the context of industrial action. The fact that the freedom to strike takes the legal form of an immunity rather than a right is used repeatedly to depict trade unions as the subjects of special and unwarranted privileges. Indeed, strike action is portrayed, not as the exercise of a right, but as an infringement of other workers' rights to work. Similarly, the restrictions on secondary action and picketing are justified by asserting that trade unions should not be above the law. This is consistent with the common law tradition, which characterizes industrial action as a breach of contract of employment. By stressing on the ballot paper that industrial action is a breach of contract, the legislation ensures that the deterrent effect of an impression of illegality works to its full effect. K Thomas v NUM (South Wales Area) [1985] ICR 886; but see News Group Newspapers v SOGAT'82 [1986] IRLR 227. 17 On the right to work, see B. Hepple 'A Right to Work' (1980) 10 ILJ 65. " Employment Protection (Consolidation) An 1978, s 62A (inserted by Employment Act 1990, s 9). 89 Social Security An 1975, s 20(lXeHg) as amended by Employment An 1988,127. See generally B. Hepple and P. O'Higgint Encyclopedia of Labour Relation Law (Sweet & Maxwell) para 1B-702. *° Social Security An 1989, s 10. See generally B. Hepple and P. O'Higgins Encyclopedia of Labour Relations Law (Sweet & Maxwell para 1B-603.

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In this context, as in the case of democracy, notions of rights and privileges are used to legitimate an essentially individualistic, free market, view of society. The central image of conflict between the individual and the collective underpins the legal endorsement of individual rights; thus obscuring the conflict and inequality between individual workers and employers. Clearly, there is an important place for individual rights against majority rule; but the importance given to such individual rights within this legislative matrix is based on a denial of any possibility that the collective could enhance individual fulfilment or that industrial action could be in the interest of individual members. In fact, the common law portrayal of strike action as a breach of contract is not an inevitable conclusion: in a different value system, the employer's contractual rights could be subordinated to workers' rights to withdraw their labour, possibly with certain restrictions attached." Similarly, as has frequently been argued, the fact that the system of labour law rests on immunities against specific economic torts is in substance no more than an alternate way of protecting a right to strike.92 Thus the portrayal of such immunities as privileges which put unions above the law is a highly effective means of legitimating restrictions. The right not to belong to a trade union has been dealt with somewhat differently. Although Thatcherism has been implacably opposed to the closed shop, it took most of the decade before the last vestiges of legal protection for an employer who wished to enforce a closed shop were removed.93 An important factor in this context was the fact that freedom to belong to a trade union predated freedom not to belong. The government could utilize an appeal to symmetry in order to introduce successive measures to enforce the right not to belong. However, the same logic made it impossible to abolish the right to belong to a trade union while protecting the right not to belong.94 This symmetry is even maintained to large extent by the Employment Act 1990, which for the first time gives statutory protection to workers who are denied employment for refusing to belong to a trade union, and is compelled to offer the same protection to those who are rejected because they are members of a union.95 The basic hostility to freedom of association has been illustrated in other ways, such as the notorious decision to ban trade unions at GCHQ, the repeal of the Fair Wages Resolution, and restrictions on the use of contracting power to enforce union membership.96 The underlying emphasis on rights as weapons against trade unions rather than against employers or the State is reinforced institutionally. Thus, in 1988 " See the argument in Simmons v Hoover [ 1977] ICR61. In France, Italy, Germany and Sweden, the contract of employment ii temporarily suspended by a legitimate exercise of the right to strike. 91 Wcdderbum The Worker and The Law 847-56. " Employment Act 1988, s 11. This put the earlier 'democratic* requirements of an 80 or 85 per cent majority in a ballot on a union membership agreement in their true perspective. M Ttw Deoevan Ceramiation, by miuast, argued that the two were not truly comparable, because the right not to belong was 'designed to frustrate the development of collective bargaining, which it is public policy to promote' Report oj the Royal Commission on Trade Unions and Employers' Associations Cmnd 3623,1968, para 599. For KahnFreund's views on the closed shop, see Kahn-Frewufs Labour and the Law, op cit 236-52. " Employment Act 1990, s 1. Trade union activities are not, however, protected. ** Employment Act 1982, s 12.

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the Commissioner for the Rights of Trade Union Members was established, to give legal advice and assistance to union members in enforcing their new statutory rights against their unions. The Employment Act 1990 extended this to include the enforcement of trade union rules.*8 This is in stark contrast to the level of protection given to employees in enforcing their rights against employers. Far from assisting employeesfinancially,there is in fact a bar on legal aid for representation before industrial tribunals. This is compounded by the unprecedented power given to tribunals in 1989 to order a party to proceedings to pay a deposit of up to £150 if he or she wishes to continue the proceedings."

I l l Freedom The centrality of the concept of freedom in the New Right ideology is self evident, given its liberal roots. Like democracy, freedom is generally considered to be one of the highest aspirations of modern society, while at the same time being sufficiently open-textured to allow a wide variety of meanings. It is this combination which has lent strong persuasive power to Thatcherism and such slogans as the 'free market' and 'rolling back the boundaries of the State'. Yet, again, like democracy, the notion of freedom is highly specific, based on the individualized notion of society as consisting of competitive and self-interested human beings. In the field of labour law, this gains expression in two main ways. The first is the renewed emphasis on freedom of contract. Thus during the debates on the Wages Act 1986, which severely restricted the protection given to low paid workers by Wages Councils, Government spokespersons repeatedly referred to the importance of non-interference in the contract of employment. l0° Yet, as has often been argued, the legal form of the employment contract as a free exchange of labour for wages simply masks the inequality underlying the exchange. Secondly the freedom espoused is essentially negative and market oriented: the 'free market' is free only in the sense that it is portrayed as maximally efficient if free of the influence of collectives and the State. Again, this is selectively applied; indeed, only trade unions are consistently portrayed as interfering with the free market.101 Paradoxically, too, the only way in which the market can be 'freed' of the influence of unions has been through extensive statutory regulation. It is surely ironic that a Government which champions the diminution of State power has enacted legislation which is more highly regulatory of the internal affairs of unions than any previous government this century (outside of wartime).102 At the same time, legislation traditionally within the realm of State regulation, such as the protection of hours of work of women and " Employment Act 1988, » 19-21. *• Employment Act 1990, • 10. w Employment Act 1989, s 20. 100 David Trippier, Parliamentary Under Secretary of State for Employment, HC Standing Committee K, col 45, 20 February, 1986. See alio S. Frcdmm 'Deregulating Pay: The Wages Act 1986' [1986] Public Laa 551. 101 For example, Removing Barriers to Employment (Cm 655, 1989) paras 2.10, 3.3, 3.10. m See Wedderburn and Bercutson, op tit 130.

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children, and health and safety legislation, has now been replaced or undermined. This is particularly striking in relation to trade union democracy. Legislative imposition of democracy on trade unions gives no weight to the value of autonomy.103 It is also worth noting that the economic liberalism of Thatcherism contrasts strikingly with its moral authoritarianism.104

IV The Way Ahead? What are the implications of the above analysis for future labour law reform? Within the scope of this article it is possible to do no more than raise, without answering, some of the central questions. One possibility is to return to collective laissez-faire, the ideology espoused by Kahn-Freund to explain labour law during the earlier decades of this century.105 There are two central tenets to collective laissez-faire. Firstly, it is argued, there is a fundamental inequality between workers and employers, which can only be mitigated if workers organize collectively, setting up countervailing sources of power to the might of capital. Trade unions are thus a central feature in an equitable society. The second tenet concerns the role of the State: it is not the State, but workers themselves who can protect their own interests best. In KahnFreund's graphic phrase: 'What the State has not given, the State cannot take away'.10* The implication of this is to 'limit the intervention of the law to those marginal areas in which the disparity of . . . the forces of organised labour and organized management is so great as to prevent the successful operation of what is so very characteristically called "negotiating machinery". Seen from the lawyer's point of view, its main characteristic today is its aversion to legislative intervention, its disinclination to reply on legal sanctions, its almost passionate belief in the autonomy of industrial forces."07 Nor is legal intervention generally necessary to limit die potentially disruptive effects of industrial conflict: the equilibrium achieved between organized capital and organized labour will usually keep industrial action at levels which are acceptably low. The role of positive legal rights is, on this analysis, limited to areas where a stop-gap for collective bargaining is necessary. Traditionally, such rights were largely in the fields of health and safety and social security.108 Collective laissez-faire therefore both justified and reinforced the basic framework of British labour law which depended on immunities from civil liability for industrial action, and gave legally

"" P. Davics and M. Freedland (ed) Kahn-Freuna" s Labour and the Late (3rd ed) London 1983, 270-90. 104 R. Lf vital 'Ideology and the New Right' in R. Levitas (ed) The Idtolcgy of the New Right (Polity Press, 1986), 1-24. 105 See generally O. Kahn-Freund 'Labour Law' in M. Ginsberg (ed) Lam and Opinion in England m the 20th Ctmury (Stevens, 1959); P. Davies and M. FrcedUnd (eds) Kahn-Fretmcfs Labour and the Law (3rd ed) (Stevens, 1983), O. Kahn-Freund 'The Changing Function of Labour Law' in R. Lewis and J. Clark (eds) Labour Law and Politics in thi Weimar Republic. 100 O. Kahn-Freund 'Labour Law' in Ginsberg, op cit at 238. 107 Ibid at 222. '" Ibid at 238.

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enforceable individual rights only in circumscribed areas, auxiliary to collective bargaining. However, a framework of labour law depending primarily on collective organization has its own difficulties. Three major drawbacks can be discerned. Firstly, workers' ability to organize into trade unions is restricted by the conditions of their employment. Where the work situation is characterized by such factors as high turnover, dispersal of workers, seasonal, temporary or parttime work, or implacable employer hostility, levels of union membership are most likely to be low. This was recognized within the context of collective laissez-faire in respect of standards of health and safety and hours of work of women and young people, which, it was argued did not lend themselves to collective bargaining and were better enforced by inspectors than by union representatives. However, this legislation was considered to be essentially subsidiary.109 During the 1960s and the 1970s, legislation imparting positive rights was introduced. Although this was possibly intended as a stop-gap for collective bargaining, it in fact became a more general floor of rights, differing in both form and degree from the regulatory legislation of the 1950s.110 Secondly, governments during the 1960s and 1970s attributed high levels of inflation to strong collective bargaining. This led governments to intervene to curb pay rises by incomes policies.111 The combination of floor of rights legislation and incomes policies meant that collective laissez-faire lost some of its explanatory value in the late 1960s and the decade of the 1970s. However, abstentionism as espoused by collective laissez-faire remained a central guiding principle in respect of the law concerning industrial action and the internal affairs of trade unions." 2 The third, and with hindsight, the most serious weakness with the theory of collective laissez-faire was its reliance on the notion of State abstentionism and neutrality.113 Kahn-Freund depicted the State as 'the custodian of the national interest, holding the ring to ensure a minimum degree of co-ordination and equilibrium between the divergent interests'." 4 This assumes that the State is capable of taking a neutral stance, above the conflicts of social groupings. However, a closer look reveals that even in the 1950s the appearance of abstentionism within the confines of labour law was only possible because of the political context, in which there was a broad consensus on the importance of a Welfare State. Far from being neutral, the State actively facilitated and 1W

Kahn-Freund in Ginsberg, op cit 242. "° For example, statutory notice periods, redundancy compensation and compensation for unfair dismissal. For Kahn-Freund's view, see Labour and the Law 39. 111 P. Daviea and M. Freedland Labour Law: Ttxt and Maunak (2nd ed, 1984) 139-40; S. Auerbach Legislating for Conflict 15. 112 Trade unions have always been governed by common law principles of contract; but there was little statutory intervention until the 1980s. This 'hands-off' policy has been shared by most Western European democracies: Weddcrburn and Bercusson op cit 109. 113 0 . Kahn-Freund 'Legal Framework' in A. Flanders and H. A. Clegg (eds) Tht System of Industrial Relations in Grtat Britain (1954) 123. It is ironic that laissei-faire is a central tenet for both the earlier ideology and that of the New Right. Yet the term has very different implications in each context. 114 R. Lewis 'Kahn-Freund and Labour Law; an outline Critique' (1979) 8 ILJ 202 at 209.

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strengthened collective bargaining by its commitment to full employment.1" During the 1980s, even the appearance of neutrality was actively abandoned. By withdrawing from the policy of full employment, the Thatcher Government severely undermined trade union strength. Thus although Kahn-Freund was correct in warning of the fickleness of State support, it was misleading to assume that workers' organization could flourish without such support. Abstentionism itself was a positive policy of previous governments; it was always possible for a later government to substitute interventionism. Indeed, it is arguable that by failing to underpin collective strength with positive legal rights, collective laissez-faire left fertile ground for the rise of Thatcherism. The formulation of collective interests as 'immunities' deprived them of all the persuasive power of rights. This facilitated their destruction under the guise of withdrawing privileges.116 Does this mean that the path of the future should lie in the direction of positive rights? There are some advantages to such a view. Firstly, as the above analysis has demonstrated, rights talk has strong persuasive power; this could be used to legitimate and endorse collective organization. For this reason, it is politically more difficult to withdraw rights once given than to remove privileges; hence the incursions on the right not to be unfairly dismissed have been far less drastic than those on the freedom to take industrial action. The second reason is more substantive. The ideological emphasis on privileges and power has diverted attention away from the difficult question, namely what are the socially desirable limits of industrial action? If the freedom to strike were formulated in the form of a right, it would force policy-makers to elucidate and justify limits to that right as against other rights and claims. However, positive legal rights are not a panacea which would solve all problems. There are at least four unresolved difficulties. Firstly, from the argument above, it is clear that the label 'right' is not sufficient if the substance is inimical to collective interests. Thus rights to associate, to strike and possibly to bargain would need to be formulated to protect genuine collective interests in a balanced way. The second and associated difficulty is that rights are no more than emanations of the political system; given a legislature without the will to establish or maintain a rights system, workers have little protection. Thirdly, rights need effective remedies, and judicial tribunals able and willing to enforce them within the spirit of the legislation. As enforced by the present common law system, rights are in themselves individualistic, and the courts have shown little ability to introduce a collective perspective. If collective rights could be formulated and introduced, it would be necessary to institute changes in the composition of the judiciary and court procedure which would facilitate a " ' For • parallel argument, tee R. Levrii, op dt, 218. Although the importance of high employment leveli ii recognized by Kahn-Freund (tee Labour and tht Law 21), he assumes that levels of unemployment arc factors which neither the unions nor the law can control. "* For similar arguments, see Wedderbum 'The Social Charter in Britain* (1991) 54 MLR 1 at 17; F. von Prondzynski 'The Changing Functions of Labour Law* in Fosh Littler (cd) Industrial Relations and tht Law in the 1980s, 189.

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collective perspective. Finally, there is no doubt that this would involve explicit State regulation: rights would necessarily involve reciprocal obligations enforceable by law. This too has its dangers; Kahn-Freund's warning of the perils of reliance on the State should not go unheeded. However, as argued above, State intervention in some form or degree is inevitable, a point masked by both collective and Thatcherite laissez-faire.,118 Similar questions arise in respect of democracy. For lawyers, of course, the most important question concerns the role of law in facilitating internal democracy. Clearly, democracy in some form is a desirable, even a necessary, goal for trade unions. This is particularly true in the case of a closed shop. But even where there is no compulsory trade union membership, trade unions' central role of enhancing participation by workers in the workplace, through collective bargaining, and in society in general makes democracy a pivotal concept."9 The need to aspire to democracy is even greater in the light of the tendency towards bureaucracy highlighted by Michels.120 But can democracy be achieved by legal means? On one view, there are serious practical problems confronting any attempt at legal regulation. Chafee121 suggests three such problems. Firstly, outside regulation may fail to understand and appreciate the peculiar rules, customs and practices of particular unions (the 'dismal swamp' principle). Secondly, the autonomous development of the union will inevitably be frustrated (the 'living tree' principle). Thirdly, the resentment and hostility which legislative intervention is likely to generate make the results of intervention unpredictable (the 'hot potato' principle). One implication of such an argument is that, provided members are free to leave the union if dissatisfied, legal intervention is both unnecessary and inappropriate. However, this 'pure autonomy' view overestimates the extent to which individual members are able to influence trade union bureaucracy by the simple threat of resignation. It is now frequently argued, even in Labour Party and trade union circles, that some external regulation could enhance internal democracy.122 The nature of such regulation, however, continues to be highly controversial. As a start, the difficulty in denning democracy remains an important stumbling block. For Lipset, for example, the key to democracy is the existence of organized opposition parties.123 Summers, by contrast, maintains that organized opposition parties are inappropriate for trade unions. Instead, on his view, the function of 117 On proposals for the introduction of labour courts, see Wedderburn 'The Social Charter in Britain'(1991) 54 MLR 1. "* For discussions on the introduction of rights, see K. Ewing 'The Right to Strike' (1986) 15 ILJ 143; A. Wilson "The Future of Labour Law: Positive Rights and Immunities' [1986] Industrial Tutor 27; Wedderbum T h e Social Charter in Britain' (1991) 54 MLR 1, 17-19. "' A. Flanders Management and Unions (Faber and Faber, 1975) 239-40; P. Elias and K. D. Ewing Tradt Union Democracy: Members' Rights and tht Law (Mansell, 1987) 263. 130 Contrast V. Allen Power in Tradt Unions (1954) 122, where he argues that 'the end of trade union activity is to protect and improve the general living standards of its members and not to provide workers with an exercise in selfgovernment'. 1J ' Z. Chafee "The Internal Affairs of Associations not for Profit' (1930) 43 Harv L Rev 993 at 1023-7. 122 Elias and Ewing, op cil 275-6. 125 Lipset, Trow and Coleman Union Democracy (1956).

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the law is to loosen the grip of oligarchy so that opposition can be heard and felt. This involves, in particular, protecting the rights of members to information, ensuring freedom of speech, and providing for contested elections.124 On yet another view, the function of democracy is to protect individual members' rights, 'based upon the belief that unions should comply with certain standards of fair treatment and should not treat any member or minority group oppressively'.125 Whichever definition is preferred, opinions differ on how to draw a balance between administrative efficiency and popular control where these conflict. These differing interpretations of democracy and its role within the union pose particularly difficult problems for the law, which, almost inevitably, is a blunt instrument. In particular, as suggested by Chafee's 'dismal swamp principle', the heterogeneous nature of trade unions makes it impossible to find one model of democracy which is appropriate in all situations. Such complexities are compounded by the unpredictability of the outcomes of legal intervention. Direct elections provide a good example. Although on the face of it, direct elections appear more democratic, in practice they tend to favour the better organized factions. This is because rank and file members are unlikely to have personal knowledge of candidates and thus depend to a greater extent on information.126 Yet this is an outcome which, in Summers' terms, strengthens rather than loosens the grip of hierarchy. Some form of external regulation is certainly necessary to prevent self-serving bureaucracy. The details of such regulation are beyond the scope of this article,127 but three basic principles emerge from the above discussion. Firstly, the law should be as straightforward and non-technical as possible. Otherwise, the law itself contributes to the strengthening of the iron grip of oligarchy. Secondly, enforcement agencies should be sensitive, not only to individual rights, but also to collective interests. This suggests that the ordinary courts are perhaps not the best institutions of enforcement. Third, and most importantly, the underlying aim should be to enhance the ability of union members to participate, not only in the union, but through the union in the wider democracy, both in the workplace and the State. This involves recognizing that individual interests may be enhanced by the collective, rather than, as assumed in the Thatcher legislation, necessarily frustrated thereby. Moreover, issues of democracy within trade unions cannot be divorced from democracy in society in general. The individualistic model assumes that all individuals exercise equal 1M

C. S. Summers 'Democracy in • One Party Slate' (1984) 43 Maryland L Rtv 93. Elias and Ewing op cit 268-9. The extent to which this can be reconciled with majority control ii not fully addreued. 114 W. Brown and S. Wadhwani 'The Economic Effecu of Industrial Relations Legislation since 1979' National Institute Economic Rtvita February 1990, 57 at 62. 117 For further useful discussions see C. S. Summers 'Democracy in a One Party State' (1984) 43 Maryland L Rev 93; C. S. Summers 'Comparisons in Labour Law: Sweden and the United States (1985) 7 Industrial Relations Law Journal 1; J. Hemingway Conflict and Democracy (Clarendon Press, Oxford 1978); P. Davies and M. Frecdland (eds) Kahn FreuruTs Labour and tht Lots (3rd ed) London 1983, 270-90; Lord Wedderburn and B. Bercusson 'United Kingdom' (1988) 17 Bulletin of Comparative Labour Relations 107. 125

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power and influence through their right to vote. It is clearer than ever in present society that this is not the case: political influence depends more on access to resources either through management of capital or through effective organization within a group than on the right to vote. For workers, the ability to exercise their democratic rights to their full extent requires freedom of association in trade unions. Nor can democracy genuinely be promoted without measures to enhance democracy within the workplace. In conclusion, any programme of reform should make sure to take into account and utilize the persuasive power of ideas and concepts. The central notions of freedom, rights and democracy must be reformulated so that they retain their ideological force while also promoting collective interests and genuine worker participation.