Two months ago, Dominic Raab accused judges of “ivory tower logic” after they ruled that the decision to leave the European Union, based on the votes of 37 percent of the electorate, needed the approval of parliament.
He seems to have changed his opinion now though. On Sunday, he and 49 like-minded Tory MPs called for judges to overrule strike ballots if they deemed the proposed action not to be “reasonable and proportionate”. Judges, it seems, are not so ivory towered that they cannot rule on industrial disputes.
The government’s Trade Union Act, which was supposed to be the answer to all this industrial militancy, has not yet been implemented but already there are signs that it might not have much impact. The various forms of industrial action called by a number of unions just before Christmas were supported by majorities that would be within the proposed new law. Increasing the ballot threshold to 40% will not necessarily reduce the number of strikes. It might even raise turnouts, thereby strengthening the union negotiators’ hands.
The anti-union MPs have therefore moved on. If workers still insist on taking industrial action, the only thing to be done is to stop pussyfooting around and ban it altogether.
The trouble with strike bans, though, is that, quite often, they don’t work. And the trouble with giving judges the power to rule on industrial relations is that they don’t always see things the employers’ way.
The often cited ban on transport strikes in New York is an interesting example. The quid pro quo of the employees not being able to take industrial action is that the law makes it very difficult for employers to change anything without union agreement. This has led to fossilised terms and conditions. Even with industrial action outlawed, New York has struggled to introduce driver only trains. Most still operate with a conductor.
Where strikes are banned, workers often come up with more ingenious ways of protesting, such as refusing to collect fares, forgetting their driving licences on the same day or flash mobbing shops. Social media makes such things easier to organise. This sort of action is much more difficult to control. With a balloted strike at least there is some warning, allowing employers and passengers to make contingency plans. With something like a sick-out, you wouldn’t know anything about it until you turned up at the station on a cold Monday morning to find that no trains were running.
Perhaps this is why, since the 19th century, no British government has ever banned strikes in peacetime. You can’t legislate against industrial conflict. Industrial action provides a safety valve in the absence of which, the conflict will simply manifest itself in other less manageable and often more disruptive forms.
As it will have enough on its plate with Brexit, the government is unlikely to have the resources available to draft pointless legislation and it will not want to pick a fight with the trade unions at such a critical time. The proposal by Mr Raab and friends probably won’t get much further than a letter to the Telegraph. None of which means we won’t see similar rants in future though. There is a long running tradition of right-wing MPs trying to fight the day before yesterday’s battles. If you have nothing new to say, you can always get some cheap publicity by attacking the unions.