Picketing and the law (1979)

From the August 1979 issue of the Socialist Standard

The right to strike was only secured in 1875 when the Conspiracy and Protection of Property Act legalised the act of picketing as long as it was ‘peaceful’ and did not constitute a ‘conspiracy’. There is considerable legal controversy about what picketing actually is but, essentially, it is the necessary effort made by workers to prevent other workers from aiding the employer with whom they are in dispute, either by taking over their jobs or by supplying the employer with goods needed to maintain efficient production. It is a correct and necessary tactic without which the strike weapon would be sterile. Any efforts by the government or the judges to weaken the right to picket peacefully is a direct attack upon the right to strike. Workers should be opposed to them.

Conspiracy

The Conspiracy and Protection of Property Act was no sooner passed than it was used by the courts to prevent picketing. This was done by employers bringing civil actions against workers for what was considered to be a ‘malicious interference with the freedom of contract’. In short, while the 1875 Act permitted peaceful picketing it did not preclude employers from prosecuting strikers for conspiring —an important and mysterious word in labour law—to damage their employer’s interest. The 1890s, mistakenly portrayed by some historians as the golden decade of New Union militancy after the success of the 1889 dockers’ strike, was a period of vicious employers’ backlash against the right to picket.

Pickets were prosecuted and found guilty of criminal intimidation. But it was left to the police to determine what was meant by intimidation. Communicating that there was a strike was considered legal, but attempting to put an argument to a fellow worker was classed as intimidating behaviour. In 1891, the Queen’s Bench decision in the case of Curran v. Treleavan slightly improved things by laying down that pickets could only be guilty of intimidation if the action threatened would, if executed, have been a criminal offence. In other words, a picket could be found guilty of intimidation for threatening a delivery man with a punch on the nose if he crossed the picket line, but not for simply speaking to him which had been viewed by the courts as intimidation before 1891.

In 1895 it was decided by the courts in the case of Trollope v. The London Building Trades Federation that it was a ‘conspiracy to injure’ for a union to publish a black-list of non-union firms. Needless to say, blacklists against employees seen to be ‘trouble-makers’ have never been opposed by the law. The most important case of the 1890s was that of Lyons v. Wilkins in 1899. Although Lyons, a leather goods manufacturer, was unable to prove that Wilkins, the secretary of the Amalgamated Society of Fancy Leather Workers, had provoked his members to use threats or violence while picketing, he was found guilty of ‘maliciously inducing or conspiring to induce, persons not to enter the employment of the plaintiff. So, the court had come down firmly on the right of employers to employ free, or non-union labour. It was in this case at the Court of Appeal that one of the judges, Lindley, declared that

You cannot make a strike effective without doing more than what is lawful.

The culmination of this anti-union period was in 1901 when the court accepted the action by the Taff Vale Railway company against the Amalgamated Society of Railway Servants which had organised picketing against the former during a bitter strike. The union was fined £23,000 to cover damages to the company and costs. The Taff Vale judgement paved the way for the legal crushing of trade unions simply for engaging in effective action.

In 1906 the legal position was remedied and, with two notable exceptions, has remained in accordance with the 1906 Trades Disputes act to this day. That Act granted immunity to trades unions from action in respect of employment contracts and granted the legal right to picket:

It shall be lawful for one or more persons, acting on their own behalf, or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, 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.

Despite government efforts in 1927 and 1974 to alter this, the current law regarding picketing remains the same as in 1906. Now, after the strikes of last winter, the new Conservative government has pledged itself to revise legislation on picketing. Any attempt by the government to restrict the right to picket will be resisted by many trade unionists. The reaction will not be unanimous, as it was not in the case of the Taff Vale judgement. Then, Richard Bell argued that

I have all along held views . . . as to the conduct and action of some of the rank and file and the younger bloods of the trades unions . . . Rules, executive committees and responsible officials have been ignored .

He went on to almost welcome Taff Vale as

a useful influence in solidifying the forces of trade unionism and in subjecting them to wholesome discipline. (Railway Review, 2 August, 1901)

Legal restrictions which give greater power to the leaders of the trades unions are likely to be supported by a number of them. But even if a majority of trade unionists do resist the Act, the state’s power is far greater than that of the unions. To criticise the state for betraying the industrial interests of workers is like blaming the Mafia for failing to wipe out crime. The state is the instrument of the capitalist class and it will always play their tune.

Temporary improvements

Just as one wing of capitalism wants picketing law made restrictive, so the other wants it made more lenient. Workers are asked to put their faith in Labour politicians to win legislative improvements on behalf of the unions. Such reform will not solve the problems faced by the working class. Temporary improvements can be won by reforms but, in comparison with the immediately attainable political conquest of political power by the working class, such reforms are not worth fighting for. After the Taff Vale judgement, millions of workers put their faith in Labour politicians to represent their interests in Parliament. Their reward has been the 1945 government which set the troops against the striking dockers, the 1966 government which published the blueprint for the Industrial Relations Act in In Place of Strife and the 1974 government which set the police on to the pickets at Grunwick and showed contempt for the low paid in the recent strikes. If Labour are supposed to be defending trades unions in Parliament, how would they behave if they were attacking them? The Fabian Research pamphlet, The Picket and the Law, after proposing a number of legislative reforms, makes the pitiful admission that

. . . none of the proposals will involve a revolutionary change in the legal framework of either industrial relations or civil rights.

So, as with all reformist struggles, much energy will be expended and no change will be made to the system which is the root of all oppression. This is the most serious charge against the trades unions: they can never bring about basic changes in the lives of their members because they are industrial-defensive and not political-offensive bodies. They arc simply the carriers of the begging bowl for the working class. The journey from trade union to socialist consciousness by the majority of the working class will be one from faith in leadership to faith in themselves, from bargaining with the employers and the state to owning and controlling the means of wealth production and distribution, from catching the crumbs to possessing the loaf.

Let the revolution, not reform, be the way of expressing working class solidarity. This government is wretched and anti-working class and pro-employer and so will be the next one and all others. Labour or Conservative, they are our enemies because they are compelled to act against our interest by the nature of the profit system which they uphold. The solution to repressive laws is not better government but no government.

Steve Coleman