The Trade Union Bill 2015: echoes of the General Strike?
Author: Adrian Williamson
Date: 2002-05-01T23:00:00+00:00
Keywords: Local government and services
Publisher: History and Policy (historyandpolicy.org)
Rights: Copyright History & Policy, 2016

The Trade Union Bill 2015: echoes of the General Strike? by Adrian Williamson.

Published in Great Britain in 2016 by History and Policy.

All rights reserved. No part of this publication may be reproduced in any form or by any means without permission from the publishers.

Copyright © 2016 King's College London and the University of Cambridge.

History and Policy
Fiona Holland
Public Affairs Manager
Virginia Woolf Building
22 Kingsway
London
WC2B 6NR
United Kingdom

+44 (0)7848 7047

http://www.historyandpolicy.org
fiona.holland@kcl.ac.uk

Design 2014 © Graham CopeKoga

Policy Papers

The Trade Union Bill 2015: echoes of the General Strike?

Adrian Williamson

CONTENTS

- TITLE PAGE
- COPYRIGHT
- POLICY PAPER
- FUTHER READING

Policy Papers

The Trade Union Bill 2015: echoes of the General Strike?

Adrian Williamson

Executive Summary

- In 2015, the Conservative government introduced a new Trade Union Bill, which proposes stricter ballot thresholds for industrial action, further restraints on picketing and a requirement that union members ‘opt in’ to political funds.

- Historically, the relationship between the trades unions and the Conservative Party has long been antagonistic. The Trade Disputes and Trade Unions Act of 1927 enacted by Stanley Baldwin’s Conservative government after the 1926 General Strike (inter alia) outlawed ‘intimidation’ by pickets and required members contributing to a union political fund to ‘contract in’.

- The Baldwin government also considered, and rejected, proposals for pre-strike ballots, further restrictions on peaceful picketing, and limitations of strikes in essential services. These proposals were found to be impractical and overly provocative. The rejected proposals of 1927 were similar to those currently proposed in the Trade Union Bill. There is no reason to suppose that they will find greater favour a century later.

- The restrictions on picketing and the political levy proved very controversial, but did not bring industrial harmony. The Labour movement campaigned to repeal the Act, and this was achieved under the Attlee government in 1946. The Act had by then become a dead letter, and for the next quarter of a century (in a golden period of economic growth) both political parties sought to keep the law out of industrial relations.

- The troubled history of the 1927 Act shows that a majority Conservative government can pass legislation to curb the unions, but only at the price of further poisoning an already difficult relationship. As and when the economy recovers from the 2008/2009 slump, the Conservatives and the Trade Unions will once more be likely to find themselves mired in confrontation.

- The change to ‘contracting out’ was not successful even in its own terms and did not prevent the rise of Labour.

Introduction

In May 2015, for the first time in a generation, the Conservatives secured a working majority in a General Election. Their manifesto committed them to Trade Union reform. The new government duly tabled a Trade Union Bill in July 2015. The proposals include stricter ballot thresholds for industrial action, new information requirements relating to industrial action, further restraints on picketing and a requirement that union members ‘opt in’ in order to contribute to political funds. This article considers the debates leading to, and the consequences of, similar legislation passed by a Conservative government in 1927, the Trade Disputes and Trade Unions Act  (‘the 1927 Act’). Although less well-known today than the more recent Trade Union legislation passed by the Thatcher governments in the 1980s, the 1927 Act was, at the time, highly significant and contentious. It was so resented by the Trade Unions and the Labour movement more generally, that it was a running sore until its repeal by the post-war Labour government in 1946. However, the Act, although detested by the Trade Unions, was also largely ineffective. It was little utilised in the courts. Various wider social changes meant that the risk of another General Strike receded in any event.

The events of 1926-27 suggest that the antagonism between the Conservatives and the unions is deep-rooted. The current proposed legislation has not simply emerged in response to particular recent events. Indeed, very similar ideas to those now proposed were considered in the wake of the General Strike. However, on examination, they were discarded. The subsequent history of the 1927 Act shows that Conservative government, armed with a parliamentary majority, can pass legislation to which the unions object. However, securing industrial peace thereby is a very different matter. Certainly, the Act did not bring harmony.

The 1927 Act followed the General Strike (“the Strike’) which had ended, in defeat for the unions, in May 1926. The Strike was one of the key industrial disputes of the twentieth century. In very widespread and well-observed secondary action, more than one million men in the transport, power and other industries struck in support of the miners (who were already on strike). In this situation, it seemed to some that union power had become excessive. The Conservative Prime Minister, Stanley Baldwin, spoke of a choice between parliamentary government and ‘some Soviet of Trade Unions’. The Daily Mail told its readers that the Strike was ‘a revolutionary movement intended to inflict suffering upon the great mass of innocent persons…it must be dealt with by every resource at the disposal of the community’.

The Conservative government therefore decided to pass legislation ‘to declare and amend the law with respect to illegal strikes’. Following extensive debate within (and outside) government, the 1927 Act declared certain strikes and lock-outs illegal; sought to prevent ‘intimidation’ by pickets; required that union members contributing to a union political fund should ‘contract in’ rather than ‘contract out’; and prohibited civil servants from joining TUC-affiliated unions.

History repeats itself?

In four areas in particular, there is an overlap between the current Bill and the proposals discussed and/or enacted in 1927:

1. Clause 2of the 2015 Bill imposes a new 50% ballot requirement for all strikes. Ballots were considered in 1927 and rejected on the advice of the employers.

2. Clause 3 requires a 40% ‘support requirement’ for strikes in ‘important public services’ (yet to be defined but apparently limited to health services, schools, fire services and the like). A similar proposal was considered and likewise discarded in 1927.

3. Clause 9 makes unlawful any picketing where the union does not provide a ‘picket supervisor [who] must wear a badge, armband or other item that readily identifies the picket supervisor as such’. Section 3 of the 1927 Act dealt with picketing, but did not include such provisions, since they, too, were considered and rejected.

4. Clause 10 provides that it is unlawful to require a member of a Trade Union to make a contribution to the political fund of a Trade Union if the member has not given to the union an ‘opt-in notice’. This, in substance, reproduces section 4 of the 1927 Act, which required that union members ‘contract in’ to such political levies and was regarded by the Labour movement as a partisan act of revenge by the Conservatives in the wake of the Strike.

Taken together, these measures caused enduring bitterness until the 1927 Act was finally repealed in 1946.This article will consider in turn the debate which occurred in respect of each of these four areas of proposed legislation.

Ballots

By the Monday after the end of the 1926 Strike, George Cave, the Lord Chancellor, had circulated a memorandum to his colleagues calling for new and wide-ranging Trade Union legislation. This did not, at this stage, include action on public services strikes or picketing. The political levy was briefly raised as an issue, but only tentatively. Cave did, however, suggest that ballots and compulsory arbitration should, in future, precede stoppages. Conservative politician Arthur Steel-Maitland, the Minister of Labour, told his colleagues that the belief that ballots would avert stoppages was ‘generally a delusion’. He suggested that the Cabinet Committee dealing with the legislation should consult industrialists.

The question of ballots proved easy to resolve. Representatives of the employers attended a meeting of the Committee and made clear that they were ‘opposed to the principle of the secret ballot because [they] thought it would be ineffective as a remedy’. A deputation from the National Confederation of Employers' Organisations (NCEO) told the Committee that secret ballots had ‘many dangers’. Although Conservative activists continued to support the ballot, the Committee concluded that it could not recommend a change which the employers flatly rejected.

Picketing

At the first meeting of the Committee, Winston Churchill (then Chancellor of the Exchequer) argued that the Bill should be confined to Cave’s main points – illegal strikes and ballots - and should not attempt to deal with peaceful picketing. When Lord Birkenhead, chair of the Cabinet Committee, raised the issue of picketing, he received little support. At this stage, the principal issue for decision was whether to legislate for compulsory ballots.

However, within the Conservative party and among employers, there emerged a series of further demands. The most widespread was that ‘the right to picket and peacefully persuade’ should be removed from the unions. The employers urged that ‘picketing should be restricted; it very rapidly lapses into intimidation’. The Committee agreed, although only that there should be precautions against the abuse of the right of ‘peaceful persuasion’, not a limitation of that right itself.

Conservative activists and the employers pressed hard for change. Churchill had, by the autumn of 1926, discovered that ‘intimidatory picketing [was not] … compatible with any form of good government’. The Home Secretary, Joynson-Hicks, passed on the specific concerns of the police on picketing, namely assemblies outside works with a view to inducing workers to strike and visits to men in their own homes. The full Cabinet agreed that ‘the abuse of the so-called “peaceful picketing” should be stopped’.

The uneasy compromise concluded on picketing made no attempt to restrict peaceful picketing as such. By section 2 of the Trade Disputes Act 1906, Parliament had declared that it was ‘lawful for one or more persons … to attend … if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working’. The 1927 act clarified that picketing ‘in such numbers or otherwise in such manner as to be calculated to intimidate any person in that house or place, or to obstruct the approach thereto or egress therefrom, or to lead to a breach of the peace’ was unlawful. Seeking to clarify what this meant, the Act declared that ‘the expression “to intimidate” means to cause in the mind of a person a reasonable apprehension of injury to him or to any member of his family or to any of his dependants or of violence or damage to any person or property.’

These provisions were difficult to interpret. It seemed clear to contemporary observers that the 1927 Act placed new and substantial restrictions on picketing. The reference to numbers of pickets was a new factor, and the definition of ‘intimidate’ an extended one. As Lewis Ferguson argued in a commentary published in 1927, the measures widened ‘very considerably the range of acts for which persons may be prosecuted’. Indeed, it was said by another contemporary commentator (Theodore Sophian) that ‘the sting of (the Act) will … be felt in the case of picketing’. An American political scientist (Alpheus Mason) noted anxiety as to ‘what interpretation the courts will give the loose and somewhat vague language employed’.

However, despite controversy over the General Strike, the Cabinet resisted calls for stronger action. Employers and Conservative activists urged that there was no such thing as peaceful picketing and that section 2 of the 1906 Act should simply be repealed. Indeed, the 2015 proposal to ‘badge’ peaceful pickets was specifically considered in 1926/7 and rejected as impractical. The legislation in 1927 was limited to the abuses which, according to the police, had resulted in violent picketing during the Strike. Even then, the Cabinet was not noticeably enthusiastic for the change in the law.

Strikes in Public Services

By March 1927, after almost a year of internal debate, the Cabinet had agreed on a draft bill which would outlaw illegal strikes, prohibit ‘intimidatory’ picketing, provide for contracting in, and restrict the Trade Union rights of civil servants and local authority employees. At this late stage, Neville Chamberlain (the Minister of Health, who had not been a full member of the Cabinet Committee) circulated a proposal that lockouts and strikes be prohibited in essential industries until after an inquiry. This suggestion, which had not been considered by the Committee, produced a powerful dissent from Steel-Maitland. This would, according to him, have been a quite revolutionary step in the British approach to industrial relations:

The change proposed in our industrial system is so drastic, so far-reaching and so uncertain in its effects that it ought not to be adopted without the fullest consideration and only, I should have thought, after consultation with representatives of industry. It is all very well to say that the public are the biggest sufferers and most need protection, but neither the public nor even the House of Commons can judge as well as industry how the thing will work.

The Committee, and the Cabinet, in each case by a majority, rejected the proposal, though they remained committed to union law reform. The idea of pre-strike arbitration had been considered during the Committee’s deliberations, but it had attracted little support. Even in the immediate aftermath of the Strike, Conservative activists had not supported a motion calling for an Industrial Disputes Court to rule before any strike could take place. Crucially, there was little enthusiasm for such ideas among employers.

Opting-in

The issue of the political levy has had a long history so far as the Conservatives are concerned. In the 1909 case of Osborne, the House of Lords had held that there was nothing in the Trade Union Acts from which it could reasonably be inferred that Trade Unions were to have the power of collecting and administering funds for political purposes. In response, the Liberal Government passed the Trade Union Act 1913, which regularised the position as to political funds, while permitting trade-union members to contract out of making contributions.

In 1918, the Representation of the People Act had tripled the number of eligible voters. The subsequent rise of Labour, supported by a greatly expanded working-class electorate, presented an obvious problem for the Conservatives. The political levy, in particular, was a subject of pressing concern. In 1921, a backbench MP presented a Bill to amend the 1913 Act. A further Bill was introduced in 1922. Both Bills foundered. However, there was a marked difference of approach between Conservative activists and more senior figures. Activists expressed ‘disappointment … at the abandonment of the Bill’. They passed resolutions urging that the levy be contracted in rather than out. Senior party figures, however, regarded such proposals as ‘politically and industrially inopportune’.

By 1924, the Conservative leadership had reluctantly accepted that amendment of the 1913 Act ‘should form part of the policy of the Party in future’.  This became a pressing issue for the Baldwin Government, which was in office from 1924 to 1929, and was armed with a large parliamentary majority. In 1925, another backbencher (MacQuisten) presented the Political Levies Bill. The Cabinet set up a Committee chaired by Lord Birkenhead to consider the issue. It advised that the Prime Minister should tell the Commons that the government would not support the Bill, in the interests of ‘peace in the industrial world’. Baldwin so informed the House, and his view prevailed, that MPs should ‘give peace in our time, O Lord’. Conservative activists and backbenchers, on the other hand, were desperate to see action, lest ‘our own working class supporters … lose faith and heart in our party’. The 1925 Conservative Annual Conference once more demanded amendment of the 1913 Act, deploring Baldwin’s speech as ‘a sign of weakness’. Churchill then urged his colleagues in 1925 that the Bill be passed ‘to liberate workmen from the thraldom of the Levy’.

After the Strike, attention returned to this issue. Cave’s initial memorandum mentioned the levy in passing. At senior level, there was unease at the prospect of reopening such a contentious matter. Employers were ‘unanimously opposed to the Bill’. Even Birkenhead and Churchill initially took a dovelike approach. The Attorney General, Douglas Hogg, advised against action on the levy, believing that the levy had ‘been made so largely a Party matter that … it will lay us open to misrepresentation’.

The Conservative Annual Conference in October 1926 considered a series of resolutions demanding action on trade-union law, but accepted assurances that the government would act to change the levy system from ‘contracting out’ to ‘contracting in’. Pressure also came from business for this change. Churchill, ever the opportunist, revived an earlier  proposal of his to deal with this ‘real and dangerous abuse’. He was fortified by resolutions from activists pleading that the government ‘amend[ed] our laws … to make the Trade Unions…purely Industrial Organisations’.

Steel-Maitland and Hogg opposed the change in the Cabinet Committee. Hogg told Churchill that union members in Lancashire ‘bitterly resent any alteration by law … [and] would regard it as an interference in their internal affairs’. Churchill was dismissive of such concerns. In party political terms, he was right to be dismissive, since Conservative activists were urging ‘the Government to take their courage in their hands and deal firmly with this matter’. However, as Steel-Maitland pointed out, this might not be the safest basis on which to proceed:

the major part of the outcry against the political levy is not motived (sic) by a burning indignation for the Trade Unionist … It is based on a desire to hit the Socialist party through their pocket and it uses the comparatively small proportion of cases of injustice … as a smokescreen under which to make the attack.

However, the government eventually gave way to grassroots activists’ demands for change. Section 4 of the 1927 Act declared that all paying the levy must actively opt in. Although the language of the 2015 bill is somewhat updated, the procedure and approach today are very similar. In 1927 Labour’s reaction once the proposals were unveiled was furious: according to Philip Snowden, the change to the levy was an attempt ‘to cripple the Labour party’.

What practical effect did this have? The impact on political funds was immediate and significant. As at the end of 1925, only about 3% of union members contracted out of their union’s fund. During 1927, the Conservatives engaged in a publicity campaign to advise union members of their new rights. This paid dividends. The level of levy paying seemed strongly affected by the procedure adopted. Certainly, there was a huge decrease after 1927, from about 3.9m levy payers in 1926 to 1.9m by 1935. The Daily Herald had, in consequence, to seek alternative sources of funding, as the Labour movement took steps to minimise the adverse consequences of the Act. The unions also had to devote substantial resources to advocating ‘contracting in’.

Aftermath

The more general impact of the 1927 Act is harder to assess. Certainly, it left little imprint on industrial law. There were few reported cases, and, in those, the Act tended to be distinguished or otherwise held inapplicable. However, this is not to say that it was never utilised. 1928 alone saw proceedings taken against: checkweighmen in Barnsley (alleged obstruction of contracting out); plumbers in Chester (picketing); Birkenhead Corporation ( under section 6, which declared unlawful any public authority making it a condition of employment of any person that he should be a member of a Trade Union); dock pilots in Barry (picketing again); garment workers in London (injunction to prevent intimidation). The Chief Registrar also dealt with complaints relating to contracting in. On one occasion, the Metropolitan police attempted, citing the 1927 Act, to stop strikers from picketing a factory at all. The authorities deployed the Act on numerous occasions thereafter, for example against textile workers in Dewsbury (1930), Lancashire cotton workers (1931 and 1932), and Manchester pickets and Scottish dye workers (both 1934). Certainly, union activists believed that these prosecutions, and police action, inhibited strike action once it had commenced, especially in regard to picketing.

Moreover, the employers, who might have been expected to benefit from the Act, showed little enthusiasm for its provisions. Sir Alfred Mond (Chairman of I.C.I.) warned that the Bill had ‘put back the movement for industrial peace’. Once the Bill became law, the employers sought reconciliation rather than conflict. In October 1927, the NCEO Council adopted a resolution welcoming the TUC’s support of ‘the promotion of industrial peace’. Thereafter, talks between a group of employers led by Mond and the TUC sought to advance this process.

The unions and the Labour Party nonetheless treated the 1927 Act as a major reverse and worked tirelessly for its repeal. Within days of its enactment, the TUC had declared war on the Act. At the September 1927 Congress, a resolution was passed decrying ‘the deliberate class bias displayed in [the Act]’ and demanding ‘the immediate repeal of such repressive legislation’. The minority Labour government of 1929 - 1931 sought to amend the Act, but was unable to command a majority for its proposals.

The issue did not go away. Labour and the unions continued to campaign for repeal, even during wartime. As war approached, a TUC deputation went to see the Prime Minister, along with General Secretary of the Transport and General Workers' Union , Ernest Bevin. Delegates stressed that ‘this wretched thing’ always came up whenever co-operation between the TUC and the state was under consideration. There were further deputations on the matter to both Chamberlain and Churchill once war began. The TUC’s core demands included the repeal of the picketing provisions. Despite the political and industrial truce theoretically agreed for the duration of the war, the 1927 Act remained a wholly partisan matter. In 1942, Churchill told General Secretary of the TUC, Walter Citrine, that he was ‘now in the possession of the views of the Conservative Party and I wish to represent as strongly as possible that this matter should not be pressed’. The next year, Citrine warned publicly that a ‘crisis’ was imminent in government-TUC relations unless, at least, parts of the Act were repealed. Citrine met Clement Attlee (leader of the Labour Party and Deputy PM) privately, who told him that Labour ministers would have to support the Act whilst they remained in office. Citrine then raised the question of whether Labour should remain within the coalition at all.  Attlee ‘said he realised that this might lead to a break-up of the whole show’.

The show continued, but in 1945 Labour faced the future with the ringing declaration that ‘the Labour Party stands for freedom … the freedom of the Trade Unions, denied by the Trade Disputes and Trade Unions Act, 1927, must also be restored.’ With the election won, the Cabinet resolved to repeal the Act in its entirety and that ‘if the repeal of the Act … left the position unsatisfactory, a further Bill could be introduced’. It was duly repealed in 1946, with Bevin, now Foreign Secretary, in the forefront of the process. The Conservatives fought hard to resist repeal and, once it had occurred, sought to persuade Trade Unionists to contract out.

Conclusion: the Conservatives and the Unions

The 1927 Act has gone but it has not been forgotten. According to the current Government website, it was one of three ‘major acts’ during Baldwin’s eight years as Prime Minister, since it was ‘introduced to limit powers and of Trade Union movement. Affected funding of Labour party too’ [sic].

Unlike other industrial legislation which had emerged since 1859, the 1927 Act was introduced with little public consultation., especially with workers. There was no Royal Commission, and no attempt to discover the views of the unions. As Bevin complained in 1946, ‘time after time, I spoke to Mr. Baldwin, as he then was, and the then Minister of Labour [Steel-Maitland], and I said, "Before you tamper with the Trade Union law, will you set up a public inquiry and allow us to state our case?" … every time we made requests we were refused’. The preceding legislation had largely removed industrial disputes from the purview of the courts. The Act reversed that process and placed the unions, and their members, once more at the mercy of the law, including the criminal law.

Despite such limited consultation, Baldwin’s government refused to legislate for many of the proposals now contemplated in the 2015 Bill before the current parliament, although they were discussed in detail at Cabinet level. Ballots, special provisions for public service strikes, and restrictions on peaceful picketing all had their advocates, but these arguments did not prevail. Even in the excitable atmosphere engendered by the General Strike, the more emollient views of Steel-Maitland and Hogg carried the day. There is little reason to suppose that it is wise to dust down such proposals a century later, or that the ‘doves’ were wrong in their assessment in the 1920s.

It is, indeed, noticeable how much the somewhat muted debates of 2015 echo the more raucous exchanges of 1926/7. This is particularly true of the political levy. This was not a question that had been exposed by the Strike. On the contrary, this was an issue to which the Conservatives had repeatedly returned after 1913. It was, moreover, a partisan and highly contentious matter, which led (together with certain other sections of the 1927 Act) to decades of bitterness. It also, of course, had a significant effect on the funding of the Labour Party and its relationship to the union movement. The creation of such bitterness did not, however, prevent the eventual rise of Labour.

Moreover, industrial legislation imposed by political victors is likely to be both ineffective and resented. The 1927 Act remained a cause celebre for the Trade Unions until its repeal. Yet it achieved very little tangible result in minimising the number or severity of strikes. Employers made scarce use of its provisions. Legislation is one thing. Industrial harmony is quite another.

About the author

Adrian Williamson QC has practised as a commercial barrister since 1985. He completed his PhD at Cambridge in 2014, supervised by Professor Martin Daunton. This is now published as Conservative Economic Policymaking and the Birth of Thatcherism, 1964-1979 (Palgrave Macmillan: 2015). He has also published on the Bullock Report on Industrial Democracy.

About History & Policy

H&P is a unique collaboration between the Institute of Contemporary British History at Kings College London and the University of Cambridge.

We are the only project in the UK providing access to an international network of more than 500 historians with a broad range of expertise. H&P offers a range of resources for historians, policy makers and journalists.

Further Reading

- A. Anderson, ‘The Labour Laws and the Cabinet Legislative Committee of 1926-27’, Bulletin of the Society for the Study of Labour History 23 (1971) pp. 37-54.

- D. Brodie, A History of British Labour Law, 1867-1945 (Oxford: Hart, 2003).

- P. Dorey, The Conservative Party and the Trade Unions (Routledge, 1995).

- A. Fox, History and Heritage: the Social Origins of the British Industrial Relations System (Allen & Unwin, 1985).

- R. Lowe, ‘The Government and Industrial Relations, 1919-39’, pp. 185-210 at p.195, in C. Wrigley (ed.), A History of British Industrial Relations [Vol.2], 1914-1939.

- (Aldershot, Gregg Revivals, 1993).

- H. Pelling, A History of British Trade Unionism (Macmillan, 1992, 5th.ed).

- D.N.Pritt, Employers, Workers and Trade Unions (Lawrence & Wishart, 1970). A.Reid, United we Stand: a History of Britain's Trade Unions (Allen Lane, 2004).

- C. Wrigley, ‘The Trade Unions Between the Wars’, pp. 71-128, in C. Wrigley (ed.), A History of British Industrial Relations [Vol.2], 1914-1939 (Aldershot, Gregg Revivals, 1993).